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Brian Lehrer: Brian Lehrer on WNYC. A new law is scheduled to take effect in New York City next month which will require salary transparency in job listings as a way of achieving pay equity for workers who have faced or could face discrimination. It will require all job advertisements or listings with companies that have four or more employees to include a "good faith salary range" or face fines from the New York City Human Rights Commission for discrimination. Fines that could go up to $250,000.

After being passed by the Council last year, this is slated to go into effect on May 15th. That is, unless a new effort to postpone and amend the law is successful. This newly proposed amendment would delay its implementation until November and carve out more exceptions to the requirements, exceptions being sought by the employer community. Will the proposed changes, which we'll go over, take the teeth out of the law, or would they prevent some unintended and unwanted and unneeded consequences, like city residents not being able to apply for remote work from elsewhere?

We're joined now by guests on both sides of that question. This is going to be a dialogue or debate, if you prefer, on this issue. We have employment and labor attorney, Miriam Clark, the Legislative Chair of the National Employment Lawyers Association, who advocated for and supports the law as it was passed. That's the National Employment Lawyers Association, New York branch, and Kathryn Wylde, president and CEO for the Partnership for New York City, which speaks for many of the city's leading employers. The partnership, along with the heads of the chambers of commerce for each of the five boroughs, signed a letter calling on the city council to amend the law. Welcome to the show, Miriam Clark, and welcome back, Kathryn Wylde. Good morning.

Miriam Clark: Good morning. Thanks, Brian.

Kathryn Wylde: Good morning.

Brian Lehrer: Miriam Clark, remind us basically what's in the law and why you think it's important.

Miriam Clark: Sure. The law is simple. It requires employers to state the minimum and maximum salary compensation for positions. That range is based on what the employer believes in good faith at the time of the posting it would pay for the job. Question, why is the law important? As background, the wage gap in New York City between white men, women, and especially women of color, is growing and growing over time. For example, in New York City, the median white male salary is 75,000, Latina, 28,000.

Interestingly enough, as I said, the gender wage gap is actually getting worse over the past 10 years in New York City. It's also worse in New York City than it is in New York State and in the country as a whole. This is true, even though Black women are attaining bachelor's and graduate degrees at a higher rate than everyone else. The very first step in achieving pay equity is pay transparency, and that's why we think this law is so important.

In terms of the rollback of the law, the New York City Human Rights Law, as I think your listeners know, has been a landmark law in many ways. We were the first big city to ban, for example, sexual orientation discrimination. We were the first big city to eliminate the severe or pervasive standard. Just recently, we expanded the law to ban gender-based harassment and to cover domestic workers for all employers. This is the first rollback of the New York City Human Rights Law that I can remember in more than 50 years. It's hard to understand why the city council would be doing that at a time when the pay gap is just getting worse.

Brian Lehrer: We'll bring Kathryn Wylde in here in just a second, but just on what you think the salary transparency in job listings would accomplish. When you state that stark disparity between what white men make on average and what Latinas make on average, though, we could also say that's when structural racism, a lot of that is because they're in different kinds of jobs. It's not for the same position a white man is making $75,000 and a Latina is making $28,000. What does posting the salary for particular jobs accomplish in terms of closing the pay equity gap?

Miriam Clark: That's a great question and there's a bunch of answers. The first is that studies show that places, for example, such as Denmark, that have mandated salary transparency have seen a closing in the wage gap. There is a demonstrated link there. I can also, for example, talk about the link between occupational segregation and wage discrimination in the following way.

Let's take a law firm, a law firm of 12 people that would be covered under the old law, but not under this bill. Huge occupational segregation in law, partners tend to be white men, associates not so much, clerical staff even less. It's the white men who were making the decisions about which associates, which paralegals, and which assistants to hire, and they are going to bring, like it or not, in many cases, their own unconscious implicit bias to that decision making. The more that you have wage transparency, the harder it is for that implicit or unconscious or even conscious bias to flourish.

Brian Lehrer: Kathryn Wylde, before we get into the three particular revisions to the law that you and the employer community are seeking, do you support the idea of this generally? Do you think pay transparency is a good and worthy thing, in general, to be mandated when job openings are posted?

Kathryn Wylde: Compensation transparency certainly is going to make the workplace fair. We do not oppose compensation transparency, we don't think that this particular law does much about pay parity, because there's no reporting mechanism to really advance that, and there are other ways to do that. Unfortunately, what we're objecting to here with this law is not the substance, it is the process. The amendment is just an attempt to correct for a process.

In the last sessions of the city council, the last couple of weeks of the council where the majority was term-limited out and is no longer in the council, there were 300 bills that were heard and passed in the last two weeks of the last session. Employers were not at the table for something that very much affects the workplace. That is our concern, is that there was no consideration given to some of the clarification and the time that's needed for employers to learn about the bill. There are 240,000 businesses in New York City, plus another 35,000 nonprofit organizations that are affected by this bill. It's both for-profit and nonprofit employers. They had no chance to weigh in.

Right now, as we come out of the COVID, hopefully, we're facing an unprecedented labor shortage and skills gap in New York City because of this rapid transition from our service economy to a digital economy and the kind of skills it requires for workers. There's also been what's called the great resignation, where people who got burned out during the COVID are not applying. There is a real job shortage, very tight labor market. There needs to be time for businesses to adjust and for employers, both the nonprofit and the business sector, to revisit their salary ranges.

I'll give you one example, the healthcare industry. They do not have the skilled people that they need to fulfill the jobs that have expanded during the health industry and are continuing to grow. They're offering some incentives to bring people in from other states that have licenses. They need some flexibility as they do that. This is a particularly difficult moment in time.

The other point I'd raise is that we've had very restrictive immigration policy, reduction in the quotas on H-1B visas and other restrictions, plus the COVID elimination of immigration over the last two years. We have not had the inflow of global talent that we previously had. This moment in time is just very tough for employers. What we're asking is enough time in pushing back this requirement and some latitude so that the smallest businesses that have been hit hardest in the COVID do not have to deal with this new implication. They are struggling to get workers to fill small business jobs and to upgrade their skills for the digital economy.

Brian Lehrer: Let me follow up on that general statement that you made. A labor advocate could hear that as well, you're looking for any advantage that an employer can get over the workers and potential workers at a time when for once they would say labor seems to have more power with the labor shortage in various industries and the great resignation and people demanding more from their workplaces than perhaps they were getting before.

You used the example of the healthcare industry and the disparity between, I guess you were referring to the traveling nurses who get paid so much more than the staff nurses at a lot of places. If they posted those salaries for the visiting nurses, when those openings occur, then the staff nurses would have more leverage presumably to say, "Wait, that's not fair. If you're going to pay other people that much, then pay us that much." Why shouldn't they at least have that knowledge to enter that negotiation?

Kathryn Wylde: I think what you're missing is that this is a very difficult labor market and it's not a matter of the power of labor or the power of the employer. It's that right now, our society is struggling with how we're going to recover and how we're going to upskill many people, how we're going to restore some flow of global talent that has filled these jobs in the past. I don't see this as a struggle between employers and organized labor at all. I see this as a social and economic problem that's been created by, certainly, the COVID and then other factors like restrictive immigration policy that we have to figure out an answer to.

Brian Lehrer: Just get as specific as you can on how posting the salary range for job openings makes it harder to fill those positions.

Kathryn Wylde: The one that you mentioned is the incentive offering for people where there is no one applying for a job. We have 200,000 plus job openings posted right now every day in New York City that we're having [crosstalk]

Brian Lehrer: Let her finish then you'll get back in. Let Kathryn Wylde finish. Go ahead.

Kathryn Wylde: We have a huge number of job openings and we have to figure out how we're going to fill them. We're in a very tight labor market. Of course, the employee has some advantages and we are not arguing that we shouldn't have transparency and post the salaries. We do think that the maximum salary requirement is going to disadvantage many employers. That's a whole other set of issues that I didn't raise and that's not on the table with this amendment. We're accepting this amendment as simply a way to give time to adjust to a policy that comes at a very bad moment as our city is seeking [inaudible 00:13:17]

Brian Lehrer: You want six months more for it to kick in November this year, instead of May, but also some exemptions which we'll get into, but Miriam Clark, from the National Employment Lawyers Association, you wanted to respond?

Miriam Clark: Yes, I want to respond to the argument about the pool of employees in New York City somehow being so shallow or that we don't have enough New York City residents who are qualified that we have to pay more to people who live outside New York. It seems unlikely that it's in the interest of city council to promote a policy that explicitly allows for paying non-New York City residents more than New York City residents, but that issue is not raised by this bill at all.

I did want to talk about the actual provisions in this bill which contain loopholes that completely eviscerate the law altogether and go way beyond just extending the effective date. For example, the bill excludes general notices that an employer is hiring without reference to any particular position. All Amazon has to do is post warehouse health needed or all Citibank has to do is post, "We are hiring in the HR space." Incredibly easy to do that, completely avoids the law and every employer that has an employment lawyer working for them will think of this loophole that completely swallows the law. [crosstalk]

Brian Lehrer: In other words, the amendment that the employers are seeking, the one you just described, would allow them to avoid posting individual jobs where the salary posting requirement would be in effect and allow them to not post salary minimums and maximums if they're posting these general categories, HR help wanted, warehouse help wanted.

Miriam Clark: Yes.

Brian Lehrer: That's one. Go on to the next one.

Miriam Clark: Here's the second one. Positions that are not required to be performed, at least in part, in the city of New York, any New York City employer can simply add to their job posting, remote work may be an option, then the position is not required to be performed in the city of New York. You could do it from your home in Yonkers or in Nassau County. Another great way of evading the law altogether for any position that is even the most remote possibility of remote work.

Kathryn Wylde: Brian, let me respond because I don't think that--

Brian Lehrer: That's why you're here. Let's go over both of those. You want to take that second one first? If a job allows remote work and somebody can be outside the city limits and do the remote work, even though technically the job is with a New York City employer, why shouldn't that salary be posted too?

Kathryn Wylde: That is not the point of that amendment at all. It is to make clear that global companies that are hiring around the world or national companies that are hiring in various geographies with different salary ranges, it simply clarifies, which was the intent of this law, it simply clarifies that this only applies to a job that is based in New York City. That's the purpose of that amendment. There's no loophole here. It's really that there are different salaries in different labor markets.

If a headquarters of a company is in New York and they're posting a job that's in Europe, that it's not subject to the same salary range requirements as New York. In addition, there are laws being passed that are different with similar purpose in states across the country. Every jurisdiction has their own permutations. For employers that have jobs beyond New York City, this is just a clarification that they do not have to use New York City law to define the postings for jobs that are not located in New York City.

Brian Lehrer: Something happened in Colorado, I understand, that you use as an example of this.

Kathryn Wylde: No, that's about remote work and what happened in Colorado was that employers were saying, Colorado residents need not apply because if they didn't want to post the job's minimum, maximum salary, but that's not what this is about. That's not what this amendment is about. This is not a loophole. This is simply a clarification. This is for jobs that are located in New York City, whether remote or not remote. Right now, everything is influx in terms of remote jobs. Obviously this is a new phenomenon that, again, employers are struggling with how many days a week will the person be in the office? If the office is in New York City, this law applies.

Brian Lehrer: Are you saying because this might make news and change city council's understanding of the law. Are you saying that if let's say a major New York employer, I think somebody used Citibank as an example before, let's say Citibank posts a job opening that someone is allowed to do remotely from their home in Westchester, full-time. Do they then not have to post the salary? Whereas if the person had to come into the office and take Metro North down from Westchester to the Financial District, they would have to post it.

Kathryn Wylde: I don't think so, because that's not the way that-- The jobs that are in New York are in New York, whether you're working from home or you're in the office and most employers are requiring a hybrid. Only about 10% of the jobs listed today in New York City are fully remote jobs.

Brian Lehrer: As the train goes by to pick you up and take you to the city right now. This is WNYC FM, HD, and AM New York, WNJT-FM 88.1 Trenton, WNJP 88 .5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are New York and New Jersey Public Radio and live streaming at wnyc.org. A few more minutes in this debate over the new law passed by City Council last year, but which might be amended to basically require salary transparency in job postings. Employers represented by Kathryn Wylde here from the Partnership for New York City are seeking some exemptions to that law as we've been discussing, employees as represented by employment and labor attorney, Miriam Clark, here want the law to stand as it is. Miriam, you wanted to respond to what Kathryn was just saying.

Miriam Clark: Yes, unfortunately, the new bill, the text of which I read to you and I'll read it again, positions that are not required to be performed, at least in part, in the city of New York, if it was supposed to mean what Ms. Wylde said, it's really deeply confusing. The City Commission on Human Rights has issued a very clear FAQ that describes under the old law, which employers are covered. It's perfectly clear and here's what it says, "Covered employers should follow the new law when advertising for positions that can or will be performed in whole or in part in New York City, whether from an office in the field or remotely from the employee's home."

That's very clear and that guidance absolutely clarifies whatever ambiguity was in the original law. Certainly, there's no need to create ambiguity with the language in the proposed law.

Kathryn Wylde: That's not true. The clarification is with respect to clarifying that jobs that are outside New York City, with an employer who is inside New York City are not impacted so there's no conflict. This is not a big deal. It's a clarification on the law. There was a second issue that Miriam raised with regard to postings of jobs without a specific job description. Honestly, I don't know where that came from. It did not come from the employer input to my knowledge.

Brian Lehrer: Interestingly, it sounds like, Miriam, you have something to bring back to city council and say, "Look, this law doesn't say what we think it says. If you pass these amendments, it will still apply to any New York City-based job," and have them issue a clarification about that. Who knows?

Miriam Clark: Can we just talk about small businesses for a minute?

Brian Lehrer: Yes, we'll get to what size businesses this should have to apply to.

Kathryn Wylde: Miriam and I were both going to the same point, which is the small business point. That is not a constituency that I directly represent, but it's one that I think we all recognize has suffered enormously during the last two years and has a huge challenge to make up. Employers with fewer than 15 employees, and that's not my number, that was a number that was put forward because it's in other places in the Administrative Code. Basically, anybody who walks in or calls up and applies for a job, they're trying to figure out what they can afford to pay them based on the skills they have. These are not large firms that have a number of people in the same position.

This does not advance pay parity. No one is competing within a single pay scale. This is really small businesses, small nonprofits. We have said we're going to try and give them a break. We're going to reduce regulation on them, we're going to reduce fines and penalties. Then we put them in the category of a law that's aimed at anti-discrimination under the federal laws, which has penalties of up to $250,000 if you don't post the minimum and maximum salary.

I think that's, as far as we're concerned, if we're going to be straight in terms of our commitment to help the recovery of small businesses that have lost most of the 260,000 jobs that New York City has lost during the COVID are in the small business sector. This is really a micro business.

Brian Lehrer: All right. Let me just say, to be clear for our listeners. Hang on. The provision that we're debating right here and this will be the last one and then we'll be out of time, is whether this salary transparency in job postings requirement should apply to any business with more than four employees, which is the current law or only apply to businesses with more than 15 employees. Miriam, why do you feel so strongly that that difference is important because 15, that's still a very small company?

Miriam Clark: Let's look at this. First of all, that would mean excluding 58,000 businesses that employ 500,000 workers, about 220,000 of whom are women, who we know bear the brunt of the lack of pay equity. All we're asking these small businesses to do is use a good faith salary range. Small businesses in New York are subject to all sorts of much more complicated regulations such as paid sick leave, they have to do sexual harassment training. The human rights law has applied to these businesses since 1965.

To use the excuse of the COVID pandemic and the pain that these businesses have suffered to begin to chip away at the provisions of the human rights law, the argument that's being made here about really a not very onerous law, could have, and in fact, was made to oppose every other advance in the human rights law, from paid sick leave to paycheck fairness. Over and over again, this is what we hear. It's a hardship on small businesses.

It's a benefit to small businesses because in setting salary ranges, they can see if they have a problem. They can recognize, "Oh, look what we're doing here. We're paying our men more than our women. Let's fix it now before there's litigation, before there's a problem. Let's be competitive with other employers and be transparent."

Kathryn Wylde: [crosstalk] [unintelligible 00:27:03] litigation and obviously, that's her job, but litigation is what really the problem is here, because once you put something like this in law, for a small business that doesn't have a human resources department, that doesn't keep a lawyer on account, for them, the whole human rights law is complaint-driven in terms of enforcement. Anyone that's unhappy with their situation has the ability under this law to bring a suit against the employer and that could be for any reason, including that they didn't post the right minimum or maximum, whatever. That is an issue that is a cost complaint. This is one teeny illustration.

As Miriam rightly says, we have passed dozens of laws that add to the burden and regulation of small business. Every mayoral candidate who ran in last June's primary promised to reduce the burden on small businesses, to roll back the regulations that have caused them to struggle to afford to stay in [unintelligible 00:28:16]

Brian Lehrer: Kathryn, I'll give you the last word in our last 30 seconds, but one of Miriam's points in her previous answer was that this difference between four employees and 15 employee businesses is 500,000 people more who would be covered and that that's where a lot of the discrimination takes place, is in the small businesses without big corporate HR policies that tend to try to guard against these things. 30-second response to that and then we're out of time.

Kathryn Wylde: Well, I'm not sure about her numbers, but the point is that 80% of the businesses in the city have 20 employees or less. 49% of those small businesses are immigrant-owned, many of them are MWBEs and I do not think these are minority-owned businesses. I do not think that this is where we have a big discrimination problem or a wage parity problem. I think they're paying what they can based on the qualifications of the applicant who comes in the door and once again, this applies to nonprofit organizations as well as businesses.

Brian Lehrer: All right. We've heard two [unintelligible 00:29:25] The ball is in City Council's court now. We thank Miriam Clark, Legislative Chair of the National Employers Lawyers Association, New York chapter, who has a good lawyer who's trying to get the last word in there even though it wasn't technically her turn, and Kathryn Wylde, President and CEO for the Partnership for New York City, which speaks for many of the city's leading employers. Thank you both very much for engaging in this dialogue. I think it clarified a lot for our listeners.

Kathryn Wylde: Thanks, Brian.

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