The push for pay equity has moved beyond prohibiting pay discrimination and into requiring employers encourage pay transparency for applicants and employees.

At the federal level, the National Labor Relations Act can protect discussions involving compensation as concerted activity. For federal contractors, OFCCP prohibits policies that discourage pay transparency. Many states have followed suit — and done even more.

Some states even require affirmative disclosure of pay ranges. For example, if an applicant asks (after an interview), employers in California must disclose the pay range for the position. Maryland, Rhode Island, and Washington also require employers to disclose the pay range to applicants upon request. Washington also requires that employers provide the salary range to employees who are changing roles, if they request it. And Rhode Island entitles employees to pay range disclosures upon hire, when changing jobs, and if they ask for it.

Nevada requires employers to provide the wage or salary range to applicants who have completed an interview—even without a request. But employees still must request the range to require transparency.

Connecticut now requires employers to provide the salary range to applicants (1) upon request and (2) by the time it extends an offer of compensation (if the applicant did not request it). It also requires disclosure to employees on hire, when changing roles, and when the employee requests it.

Perhaps Colorado has the most burdensome requirements. There, an employer with even one employee in Colorado that is recruiting for a job in Colorado (or that is remote) must include (1) the wage rate or range for the role, (2) a general description of other compensation available for the role, and (3) a general description of benefits for the role in the job posting.

Setting a new mark, Colorado also requires “opportunity transparency.” Employers with at least one Colorado employee must also provide written notice to its Colorado employees of any “promotional opportunity” — including any hire, change in job title, or material change in job duties, opportunities, or responsibilities — before it decides who will get that new job. It includes in-line promotions. Even employees who are not qualified for the job must receive notice of the opportunity. And if the role is in Colorado or is remote the notice must include the same pay and benefits disclosures that job postings require.

Since Colorado began enforcing its novel transparency requirements, employers have been struggling with how to comply. Should Colorado’s “outlier” law drive changes to company-wide practices? Is Colorado even an outlier, or will others follow suit?

So far, the answer appears to be “yes” and “no.”  Maryland, Nevada, Connecticut, and Rhode Island enacted their pay transparency requirements after Colorado. They require pay disclosures, but do not mirror the Colorado approach.

But bills under consideration in Massachusetts (H 1950 / S 1208) would require employers to provide the pay scale for a particular employment position to an applicant (after interview) or an employee (currently employed in that position), upon request. The bills include nothing on “opportunity transparency.”

And in New York, bills (S 5598A/A 6529A) would require employers to disclose the compensation range, job description (if it exists), and a general description of other compensation and benefits for the role “upon issuing an employment opportunity for internal or public viewing.” This seems to require pay and benefits disclosures in job postings — like Colorado. But unlike Colorado, the New York bills do not propose an “opportunity transparency” requirement.

Synthesizing the varied approaches among the states, the trend seems to require pay disclosures. At a minimum, new laws require disclosure upon request. But there may be an emerging trend toward proactive disclosure to applicants and employees—see Colorado and New York. “Opportunity transparency,” however, seems to be farther than most states are currently prepared to go.

If you have any questions, please reach out to a Jackson Lewis attorney.

Months after first releasing pay transparency guidance, the Colorado Department of Labor and Employment (CDLE) has issued an update.

CDLE issued final Equal Pay Transparency (EPT) Rules in November 2020. And, in December 2020, it released Interpretive Notice & Formal Opinions (INFO) #9, which clarified how CDLE will interpret the Rules.

Since then, employers have been navigating their requirements and CDLE has begun compliance investigations. All the while, both employers and CDLE are learning more.

As a result of its investigations, CDLE updated INFO #9 on July 21, 2021. This update clarifies how CDLE will apply and interpret the EPT Rules. Much of the new INFO #9 is unchanged, but it does provide additional clarity on five specific areas:

  1. What is a “job posting”? A job posting is any written or printed communication (whether electronic or hard copy) that the employer has a specific job or jobs available or is accepting job applications for a particular position or positions. Employers need not include EPT pay and benefits disclosures with a general “Help Wanted” sign.
  2. Which job postings must comply? All job postings must include EPT pay and benefits disclosures, unless the employer ties the role to a specific, non-Colorado worksite. Put differently, all remote roles must comply.
  3. What salary range information must an employer include? A salary range should extend from the lowest to the highest pay the employer believes it might pay for the particular job, depending on circumstances, including employee qualifications, employer finances, and other operational considerations. Ranges with open ends do not comply: such as “30,000 and up” (with no top of the range) or “up to $60,000” (with no bottom of the range).
  4. What benefits must an employer disclose? An employer must describe healthcare and retirement benefits, paid days off, and any tax-reportable benefits. It may not rely on an open-ended phrase, such as “etc.” or “and more,” to meet this requirement.
  5. What are the procedures for investigations? INFO #9 adds complaint investigation procedures but permits a directed investigation where a complainant fails to meet these procedures.

Signaling it is a work in progress, CDLE is releasing new guidance as it determines clarifications are appropriate.

Please contact a Jackson Lewis attorney with any questions.

Legislation recently reintroduced by Senators Maria Cantwell (D-Wash.) and Shelly Moore Capito (R-W.Va.) joins a growing number of federal bills on pay equity for female athletes.

The “Equal Pay for Team USA” Act of 2021, first introduced in 2019, would require equal pay for all athletes representing the United States in international sporting competitions, regardless of the athlete’s gender. This comes less than a month after the “Even Playing Field” Act, another bill addressing pay equity for female athletes, was reintroduced.

To read the rest of this article, please visit our Collegiate and Professional Sports Law Blog here.

The new Colorado Equal Pay for Equal Work Act (EPEW) and Equal Pay Transparency (EPT) rules have been garnering a lot of attention in recent weeks. First, the litigation challenging the law has been dismissed following denial of Plaintiff’s request for a preliminary injunction. More recently, the law has been in the news in connection with reports that job postings for various employers contained language “excepting” Colorado from their remote openings. Following these reports, the state undertook a study of remote job postings. According to the state, the study (which looked at more than 200 remote job postings) found “99% of remote job posts did not exclude Coloradans.”

The Colorado Department of Labor and Employment (CDLE) shared these, and other statistics, during an on-line training addressing the EPEWA and EPT rules held on July 2, 2021 (the Friday before this year’s Fourth of July holiday).

One of the points the state confirmed is employers are not required to post jobs externally. However, if they do, and the job can be performed in Colorado, pay and benefits must be included on (or linked) on the posting

(1) Is an external posting required? No. Compensation disclosure required only if employer chooses to have an external job post.

One of the biggest take-aways from the program is the state specifically reported that

[o]mitting compensation by posting that a remote job is for anyone, anywhere ‘except Coloradans’: Not compliant with Act.

Similarly, the training stated that employers posting a job as remote “can’t mis-label job (as not performable in CO) to opt out of law.”

The training went on to reiterate that there are “no exceptions;” the “rules can’t & don’t add exceptions absent from the statute.”

While not regulatory, or even formal guidance, the training certainly indicates the position the state will be taking on enforcement of this issue going forward.

There are indications, however, that the state will afford employers the opportunity to bring postings into compliance after a first violation with the issuance of a fine.

We will continue to monitor developments in this area and share any additional updates and insights.

Rhode Island Governor Dan McKee has signed into law new protections against pay discrimination. The new law, which goes into effect January 1, 2023, makes it unlawful to pay any employee less than the employees of another race, color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin for comparable work.

Salary History Ban and Pay Transparency

Consistent with other state equal pay law trends, the Rhode Island law also contains a “ban” on employer inquiries about or reliance on salary history, as well as pay transparency protections. Employers may not require a candidate to disclose salary history or rely on a candidate’s wage history to justify lower pay.

Employers also may not prevent employees from discussing pay.

“Safe Harbor” for Self-Evaluation

The new law also provides a “safe harbor” if an employer has analyzed pay and rectified any identified problems. An employer would have an affirmative defense to all liability if it evaluated its pay practices within the two years prior to commencement of an action and can show that any unlawful pay differences identified by the analysis have been eliminated.

A permissible self-evaluation may be “of the employer’s own design” or on a “standard template or form” to be issued by the Department of Labor and Training.

We will continue to monitor for additional developments and provide updates as warranted.

For additional information or to discuss how Rhode Island’s amended equal pay law might affect your compensation process, please contact a Jackson Lewis attorney.

The Oregon legislature has temporarily amended Oregon’s Equal Pay Act to allow employers latitude to both encourage COVID-19 vaccinations and to attract new employees as the state emerges from COVID-19 business restrictions. Under the revised statute, when evaluating whether employees who perform work of comparable character are paid equitably, a comparison of employee compensation may exclude vaccine incentives.

To read our full article on this topic, please visit our publications page here.

Signed by Governor J.B. Pritzker into law June 25, 2021, new amendments to the Equal Pay Act of 2003 alter and clarify the practical implications of obtaining an equal pay registration certificate under the Act.

A requirement enacted through Governor Pritzker’s signing an amendment to the Equal Pay Act on March 23, 2021, businesses with more than 100 employees must obtain an equal pay registration certificate certifying compliance with the Act from the Department of Labor.

To read the rest of this article, please visit our publications page here.

On June 11, 2021 the U.S. Senate failed to approve advancement of the latest iteration of the Paycheck Fairness Act. In a procedural cloture vote that fell along party lines the Act fell short of receiving the required 60 votes needed to move forward. As a reminder, the version of the Act proposed in February 2021 would have required OFCCP to implement a survey to collect compensation data and other employment-related data (including hiring, termination, and promotion data) among other requirements. Read more.

Connecticut’s “An Act Concerning the Disclosure of Salary Range for a Vacant Position,” which goes into effect on October 1, 2021, imposes new requirements on Connecticut employers to disclose the wage range for vacant positions to both job applicants and existing employees.

The new law also extends the prohibition on sex-based compensation discrimination to comparable as opposed to equal work.

Connecticut law already prohibits employers from asking prospective employees about past compensation and generally allows employees to discuss wages.

To read the rest of this article please visit our publications page here.

Today, the United States District Court for the District of Colorado issued a long-awaited ruling on a motion to enjoin the recently enacted Colorado Pay Equity Transparency Rules.

These rules were first proposed in September 2020, finalized in November 2020, clarified in December 2020, and became effective January 1, 2021.

They are far reaching. But in short, they require that employers (1) include pay and benefit information in the job posting and (2) provide specific written notices regarding all “promotional opportunities”—including those involving non-competitive “in-seat” promotions for any employee, anywhere in the company—to Colorado employees before making a promotion decision. The Rocky Mountain Association of Recruiters sued to enjoin the new rules. And today the Court denied the injunction.

Upon preliminary review, it seems the decision largely came down to a lack of evidence in support of plaintiff’s arguments. This may open the door for the case to develop the facts on the relative burdens and benefits. So it may not be over yet.

But for now, we expect the Colorado Department of Labor and Employment to continue enforcing these rules. And we’ve already seen these enforcement efforts begin.

We will continue to monitor for additional developments and provide updates as we learn more.

For additional information or to discuss how Colorado’s Equal Pay Transparency Rules might affect your promotional and job posting processes, please contact a Jackson Lewis attorney.