New York Requires Hiring Notices to Address “Ghost Jobs”

Key Highlights

• New York is poised to require employers with 100 or more employees to include specific notices in job postings identifying whether a position is a current vacancy and when the employer expects to fill it.
• Violations can result in significant per-platform fines that increase if noncompliant job postings are not timely corrected or removed.
• Covered employers should update recruiting and job posting processes now to ensure required notices, timely removal of filled positions and required notifications to third-party job boards once the law takes effect.

New York’s legislature recently enacted a new notice requirement for print and online job advertisements that seeks to address the issue of so-called “ghost jobs,” i.e., job listings for positions that do not exist or are not planned to be filled immediately. The bill now goes to Governor Hochul, who has not publicly expressed any opposition to it, and will become effective immediately upon her signature. Since the new law imposes potentially significant fines for non-compliance, New York employers should be ready to update recruiting and job posting processes to ensure prompt compliance if and when the bill becomes effective.

Covered Employers Must Include Prescribed Notice Language

The new law applies to employers with 100 or more employees, and so exempts smaller businesses. Although not explicitly addressed, other New York labor and employment laws typically measure employer size based on total headcount, not just New York-based employees. Qualifying employers must include specific notice language, bolded and capitalized, in print and online job postings based on the employer’s intended timing to fill the position described in the posting:

• For positions intended to be filled within 90 days or less: THIS POSTING IS FOR A CURRENT VACANCY AND THE EMPLOYER INTENDS TO FILL THIS POSITION BY [DATE]
• For positions intended to be filled more than 90 days after the listing is posted: THIS POSTING IS FOR A CURRENT VACANCY AND THE EMPLOYER INTENDS TO FILL THIS POSITION NO SOONER THAN [DATE]
• For positions for which there is no expectation to be filled: THIS POSTING IS NOT FOR A CURRENT VACANCY BUT THE EMPLOYER IS SEEKING RESUMES TO REVIEW IN THE FUTURE WHEN JOBS BECOME AVAILABLE

Employers Must Timely Remove Filled Job Postings

Employers are required to remove job postings that are posted by the employer within two (2) weeks of the position being filled. If an employer knows that a third-party website or publication is listing the employer’s position, the employer must notify the third-party within two (2) weeks of the position being filled.

Violations Can Result in Significant Per-Platform Penalties

The penalties for violations of these requirements can potentially be steep. The New York Department of Labor can fine the employer $2,500 per platform on which the non-compliant listing is posted on and require removal of non-compliant listings within 30 days. This means that if an employer posts a non-compliant listing on its own webpage, LinkedIn, and Indeed, the penalty potentially increases to $7,500. Given how many third-party platforms repost jobs (often without authorization, but potentially with the “knowledge” of the employer), these penalties can quickly multiply. If the non-compliant posting is not rectified within 30 days of the finding of a violation, the employer is subject to an additional $5,000 fine (again per platform), which continues to double for each subsequent 30-day period in which the violation is not rectified.

Employers Should Prepare for Immediate Compliance

This law goes into effect immediately once it is signed by Governor Hochul, so employers should prepare now to be ready to update job listings and recruitment processes to immediately achieve compliance. If you have any questions, please reach out to your Polsinelli labor and employment attorney.