Search results for: salary transparency

Employers doing PERM cases need to be on the lookout for local laws that require salary transparency in recruitment ads. Pursuant to the Department of Labor’s PERM regulations, recruitment advertisements must include only the name of the employer, the job location, directions on how to apply for the position, and a description of the position specific enough to apprise U.S. workers of the opportunity – not salary information. Local laws may impose additional requirements.

The new salary transparency in job advertisements law in New York City, effective November 1, 2022, and enacted as part of the New York City Human Rights Laws, will require most job postings for positions that can or will be performed in whole or in part in New York City to include a good faith salary range. In addition:

  • The new law applies to all employers with at least four employees – with at least one employee working in New York City. The definition of salary does not include other forms of compensation or benefits, such as commissions or bonuses, stock options, or employer provided insurance.
  • The position must be one 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, and whether part-time or full-time. If the position is fully remote and can be performed from “anywhere,” then the position would be covered because it could be performed in New York City.
  • Both the minimum and maximum salary must be included – if there is no flexibility in the salary, the minimum and maximum salary would be the same. In the PERM situation, the salary on the recruitment ads would match the salary on the PERM Notice of Filing (NOF). In Special Handling Cases, under DOL regulations, NOFs do not require a salary range. If the college or university and the position meet the new law eligibility requirements, however, the NOF and the recruitment advertisements should include the salary range.
  • All types of advertisements are covered: postings on internal bulletin boards, internet ads, printed flyers distributed at job fairs, and newspaper advertisements. This would appear to include all types of PERM ads.

The New York City Commission on Human Rights will enforce the law based upon tips and may initiate its own investigations. Individuals also may file complaints in civil court against their current employers. Violators may have to pay monetary damages and civil penalties. They also may be called upon to engage in affirmative relief, such as amending advertisements, updating policies, and conducting training. The purpose of pay transparency laws is to promote pay equity. Colorado has a similar Transparency in Pay Act, instituted in 2021, covering employers that have at least one employee in Colorado. Washington also has a similar law that will become effective on January 1, 2023. While New York City, Colorado, and Washington are the only localities with laws that do or will require salary rates in all job postings, other states have pay transparency laws that require salary disclosure at certain points in the hiring process and, at some point, may require salary ranges in advertisements. Recently, New York State passed Senate Bill S9427A, which would amend Section 194 of the New York Labor Law to require the disclosure of compensation ranges in job, promotion, and transfer advertisement state-wide. The bill would require all employers with at least four employees to include the compensation, or a range of compensation, for any job advertisement that “can or will be” performed, at least in part, in New York. The bill currently defines a “range of compensation” as the “ minimum and maximum annual salary or hourly range of compensation” for a particular job. The pay transparency bill will go into effect 270 days after being signed into law by Governor Kathy Hochul.

If you have questions about PERM and the New York City, Colorado, New York, or Washington salary transparency laws, please reach out to your Jackson Lewis attorney.

 

Washington, D.C. joins a growing group of states requiring employers to include projected salary ranges in job postings and to restrict the use of pay history in setting pay.

On Jan. 12, 2024, the mayor of D.C. signed the Wage Transparency Omnibus Amendment Act, which, among other things, requires private employers, regardless of size, to disclose pay ranges in all job postings and advertisements. Because the D.C. budget is controlled by Congress, the Amendment was sent to Congress for a 30-day review on Jan. 22, 2024, with a projected law date of March 9, 2024. The new law is scheduled to go into effect on June 30, 2024.

The Amendment requires employers to include in job postings the minimum and maximum projected salary or hourly wage for the position. Employers not only must disclose the projected salary in public job postings, but they also must do so in any internal job postings of the position. The Amendment also requires employers to disclose to prospective employees the existence of other benefits (such as healthcare or bonuses) before the first interview.

The Amendment prohibits employers from screening job applicants based on wage history. The Amendment does not specifically address remote positions.

Employers will be required to post a notice in the workplace notifying employees of their rights under this law. The notice must be posted in a conspicuous place in at least one location where employees congregate.

The new requirements under the Amendment will also affect the PERM labor certification process for employers sponsoring foreign nationals for “green cards.” Employers can prepare for these changes by:

  • Reviewing and modifying, as needed, all recruitment postings (both external and internal) to ensure these postings include the required salary ranges.
  • Reviewing internal interviewing protocols to ensure disclosure of benefit information upon request or before conducting a screening interview (whether by phone or in person) with an applicant for the PERM position.
  • Reviewing internal interviewing protocols to ensure no historical pay information is requested from prospective employees or from their prior employers. Indeed, this would not even be relevant because the applicant for the PERM position will know the salary range.
  • Training employees involved in the PERM process on the benefit disclosure requirements and the salary history restrictions.

The law aims to increase pay equity and to address historical wage gaps. While the law does not create a private right of action for employees, the Amendment provides the attorney general the authority to investigate violations and to bring civil actions against an employer or seek remedies on behalf of individuals or the public. Employers found to have violated the law may be subject to civil fines ranging from $1,000 to $20,000 per occurrence.

Jackson Lewis attorneys are available to assist in navigating the best strategy for PERM processes in light of the many new pay transparency laws.

On Equal Pay Day, Congresswoman Eleanor Holmes Norton (D-DC) introduced three bills, including a national pay transparency bill, that she believes would help to close the pay gap between men and women.

She chose Equal Pay Day for the introduction of these bills because it marks the additional days women must work to earn what men earned the prior year.

One of the bills, the Salary Transparency Act, amending the Fair Labor Standards Act, would require all U.S. employers to provide the salary range for jobs in all advertisements. The salary range would need to include wages and other forms of compensation the employer anticipates offering the successful candidate for the job opportunity. The act includes civil penalties ranging from $5,000 for a first violation, increased by an additional $1,000 for each subsequent violation, not to exceed $10,000, plus liability to each job applicant for damages and reasonable attorneys’ fees. The bill also includes a private right of action.

This bill comes at a time when more states are adopting their own pay transparency laws, many of which have different requirements. Due to the difficulty of conforming to these various  laws, “some large corporations including Airbnb Inc. and Microsoft Corp. have begun to include pay information in all US job ads, which they’ve said also helps attract and retain employees.” Indeed, some employers, when doing PERM Labor Certification cases for sponsored visa employees, are choosing to comply with the most restrictive state law in their footprint to avoid possible state law violations, while balancing different geographic pay differentials, especially when many jobs can be worked remotely from anywhere within the United States. In that regard, federal legislation may come as a relief for some multi-state employers, particularly if it helps slow the wave of new and varied state requirements, which make compliance more difficult.

As compliance with a patchwork of state laws becomes more and more burdensome, employers will have to decide how risk-averse they are.

Jackson Lewis attorneys are available to assist in strategizing on how to comply with pay transparency laws in the employment and immigration arenas.

Employers that sponsor foreign nationals for green cards using PERM Labor Certification have been watching as a growing number of states and localities require salary transparency in job postings. California soon may join that list.

If the amended version of California’s SB-1162, Employment: Salaries and Wages, is signed by Governor Gavin Newsom, California employers with at least 15 employees (on the company’s payroll – full-time or part-time) will be required to include the pay scale for any position in any job posting. This includes advertisements that are posted by third parties. The California Labor Commissioner will have the authority to investigate any complaints alleging violations and to order civil penalties ranging from $100 to $10,000 per violation, depending upon the circumstances. First violations may be forgiven if the employer can demonstrate that all job postings for open positions have been updated to include the pay scale. The amendment, which focuses on updated pay data reports and updated disclosure requirements (but also includes the new job posting requirement), would become effective January 1, 2023, if signed by the Governor.

Unlike wage transparency laws in other localities, the California law does not specify:

  • Do all 15 employees need to be working in California?
  • Does the 15-employee count include subsidiaries and affiliates?
  • Does the law include postings for jobs that are not located in California?
  • Does the law include remote jobs that could be performed in California?

If the bill is signed, California will likely provide additional guidance, as it did when the initial reporting requirements went into effect.

If the amended version is signed, California will join Colorado and Washington State, as well as localities in the New York area (including New York City, Westchester County, Ithaca, and Jersey City, New Jersey) in requiring salary ranges in job postings. While waiting for Governor Newsom’s decision, employers are also waiting to see if Governor Kathy Hochul will sign a similar law for New York State.

If you have any questions about how these laws affect your PERM recruitment obligations, please reach out to your Jackson Lewis attorney.

On September 27, 2022, Governor Gavin Newsom signed an amended version of California SB-1162, Employment: Salaries and Wages. Among the new provisions which will become effective on January 1, 2023 is the requirement that California employers with at least 15 employees include the pay scale for any position in any job posting, including advertisements posted by third parties. For more information on this law and how it will affect PERM labor certification recruitments, please see our immigration blog on the amendment and blog from our California Workplace group.