Equal Pay Transparency (EPT) laws have been passed in several states and localities, potentially impacting the PERM process for employers managing labor market test efforts within those states.
Washington State passed pay transparency legislation on March 30, 2022, that requires all employers within the state with 15 or more employees to disclose in each job posting the wage scale or salary range and a general description of all benefits and other compensation offered to the hired applicant. This requirement goes into effect on January 1, 2023.
Other states with EPT laws becoming effective on January 1, 2023, include California and Rhode Island. In California, employers with 15 or more employees will be required to post pay ranges in their written job postings. Regardless of how many people they employ, all employers in California will be required to disclose the pay range for a given position to job applicants who request that information. In addition, all employers must maintain job title and pay history records for each employee for the duration of employment plus three years after the end of employment. In Rhode Island, all employers are required to provide a pay range or rate for a given position to job applicants upon request and must do so prior to discussing compensation.
The following states already have EPT laws that have gone into effect: Colorado, Connecticut, Maryland, Nevada, New Jersey, and Ohio. EPT rules are not regular and differ by locality, with some not requiring that salary information be part of the published job posting but rather be provided upon request at the time an offer of employment is made.
The requirements to publish pay in job postings will impact employers’ PERM programs, specifically labor market testing activities initiated prior to the issuance of Prevailing Wage Determinations (PWD). In cases where testing efforts have begun prior to obtaining a PWD where EPT laws mandate posting wages or wage ranges, efforts identifying offered salaries will have to be reposted if the PWD comes back higher than the posted/offered salary or lower end of a range. Practitioners can perform their own wage analyses prior to initiating testing efforts to get an idea of what to expect back for the PWD, but this is not 100% foolproof. Please note that PERM regulations at 20 C.F.R § 656.17 and 20 C.F.R. § 656.18 do not require newspaper/journal advertisements or other recruitment activities to contain a wage or wage range (although this is required in the Notice of Filing). These rules, however, do not overrule relevant EPT requirements.
EPT laws do not change the PERM regulations. Therefore, members with employers testing the labor market in localities affected by EPT laws will have to include the EPT laws into their PERM practices and should consult with local employment counsel to confirm compliance to the EPT rules.
Disclaimer
This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
