In recognition of the 15th anniversary of the Lilly Ledbetter Fair Pay Act, the Biden Administration has released a proposal that would prohibit federal contractors from using a job applicant’s prior salary history when setting pay and require federal contractors to post the expected salary range in its job postings. >>Learn more here.

California’s pay data reporting portal will open on February 1, 2024, and employers will be required to report on three new data points.

Since 2020, California has mandated that employers with at least 100 employees submit a pay data report to the state Civil Rights Department (CRD) as part of its efforts to advance fair pay. The reporting requires annual submissions detailing pay and hours worked for employees in California, or who are a part of a California establishment, categorized by establishment, job category, race/ethnicity, and sex.

In 2022, the reporting requirements expanded to require reporting on both “payroll employees” (workers on an employer’s payroll) and “labor contractor employees” (workers not on an employer’s payroll who are engaged in the employer’s usual course of business). That amendment also established potential penalties of $100 per employee for employers who fail to comply (or $200 per person for repeat failures).

In January 2024, California again updated its pay data reporting website for the 2024 reporting cycle.

Read the full article on Jackson Lewis’ California Workplace Law Blog.

Colorado’s revised Equal Pay Transparency Rules go into effect on January 1, 2024. The Colorado Department of Labor and Employment (CDLE) has released additional guidance following release of its final rules for implementation. The CDLE’s Interpretive Notice & Formal Opinion (INFO) #9A provides CDLE’s official opinions, expectations, and examples for employer compliance with the Rules. Topics covered by INFO #9A include required disclosures and notices, among others. Read more.

Seeking to join the growing list of jurisdictions with pay transparency obligations for employers, on December 19, 2023, the District of Columbia Council passed the Wage Transparency Omnibus Amendment Act of 2023. The bill would expand the District’s efforts to address concerns and perceptions regarding income disparities. Read more.

The Colorado Department of Labor Employment (CDLE) has issued the highly anticipated final Equal Pay Transparency (EPT) Rules and the Statement of Basis, Purpose, Specific Statutory Authority, and Findings, which seek to clarify the Colorado Ensure Equal Pay for Equal Work Act. The rules, which are largely unchanged from their proposed version, will become effective on January 1, 2024.

Under the Act, Colorado employers have an obligation to announce, post, or otherwise make known all job opportunities.

The rules attempt to clarify ambiguous provisions of the Act, as summarized below. The CDLE will be releasing further guidance in Interpretive Notice and Formal Opinion (INFO) #9A, which the CDLE website says is “coming soon.” Read more.

The Colorado Department of Labor and Employment has issued proposed Equal Pay Transparency (EPT) Rules. The proposed rules seek to clarify Colorado’s Ensure Equal Pay for Equal Work Act. The Act, which goes into effect January 1, 2024, amended Colorado’s pay transparency statute. A public hearing on the proposed rules is scheduled for October 30, 2023. If adopted, the proposed rules also will become effective on January 1, 2024.

The proposed rules attempt to clarify ambiguous provisions of the Act, as summarized below.

Career Development: Under the Act, the obligation for employers to announce, post, or otherwise make known job opportunities does not apply to “career developments.” The Act defines career development as a “change to an employee’s terms of compensation, benefits, full-time or part-time status, duties, or access to further advancement in order to update the employee’s job title or compensate the employee to reflect work performed or contributions already made by the employee.” The proposed rules clarify that such existing work or contributions must be part of the employee’s existing job and are not within a position with a current or anticipated vacancy.

Career Progression: Similarly, career progressions, defined as “regular or automatic movement from one position to another based on time in a specific role or other objective metrics,” are also excepted from the definition of “job opportunity.” For these positions, employers must disclose and make available to all “eligible employees” the requirements for career progression, along with each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement. “Eligible employees” are “those in the position that, when the requirements in the notice are satisfied, would move from their position to the other position listed in the notice as a ‘career progression.’”

Application Deadlines: The Act requires that job postings include the date the application is anticipated to close. This has led to confusion about evergreen job postings and how to comply when an application deadline is extended. To answer these questions, the proposed rules provide two exceptions to the deadline requirement. First, if there is no deadline because the employer accepts applications on an ongoing basis, the application must say so, and a deadline need not be included. Second, a deadline may be extended so long as (1) the original deadline was a good-faith expectation or estimate of what the deadline would be and (2) the posting is promptly updated when the deadline is extended.

Acting, Interim, or Temporary (“AINT”) Hires: The proposed rules provide that no immediate job opportunity posting is required to fill a position on an AINT basis for up to nine months where: (1) the position needs immediate hire in an AINT role; (2) the AINT hiring is not expected to be permanent, and if the hire may become permanent, the required job opportunity posting must be made in time for employees to apply for the permanent position; and (3) the position was not held any time in the preceding 12 months by another AINT hire for which there was no job opportunity posting. The proposed rules modified the duration of an AINT role from six to nine months.

Post-Selection Notice to Employees: After a candidate is selected for a job opportunity, the Act requires employers to distribute a post-selection notice to “employees with whom the employer intends the selected candidate to regularly work.” This requirement created confusion in determining the employee population who needs to receive this notice and the method of notice. The proposed rules address both points. Under the proposed rules, the term “work with regularly” means “employees who, as part of their job responsibilities, either (1) collaborate or communicate about their work at least monthly, or (2) have a reporting relationship (i.e., supervisor or supervisee).” Employers may comply by providing notice “to a broader range of, or all, employees.” In addition, employers may comply by providing the post-selection notice of either (1) each individual selection or (2) multiple selections, as long as the notice is provided no later than 30 days after any selection in the notice.

Geographic Limits: The proposed rules establish that the notice requirements for pre-selection, post-selection, and career progression do not apply to employees entirely outside Colorado.

Please contact a Jackson Lewis attorney if you have any questions about these developments.

Pay transparency obligations are in effect in New York State, and the state Department of Labor has issued employer guidance and proposed regulations. As of September 17, 2023, covered employers must include in any advertisement for a job, promotion, or transfer opportunity the minimum and maximum annual salary or hourly rate that the employer believes, in good faith, they are willing to pay the successful applicant at the time of the posting. Read more.

Employers are reminded that the New York State Pay Transparency Law goes into effect Sept. 17, 2023. Covered employers in New York State will have new pay transparency obligations related to job advertisements. Covered employers must include in any advertisement for a job, promotion, or transfer opportunity the minimum and maximum annual salary or hourly range. Read more.

Illinois Governor J.B. Pritzker signed a new law on August 11, 2023, that will amend the Illinois Equal Pay Act (IEPA) and mandate pay transparency in job postings for most Illinois employers. The law will go into effect on January 1, 2025, and, along with other recent amendments to the IEPA, will have a significant impact on how employers operate in Illinois. The amendments make it unlawful for an employer with at least 15 employees to fail to include the pay scale and benefits for a specific job in a job posting in Illinois. Read more.

As an update to our previous report on Colorado’s new Ensure Equal Pay for Equal Work Act, on July 28, 2023, the Colorado Department of Labor and Employment (CDLE) issued a revised Interpretive Notice and Formal Opinion (INFO) #9 to establish a timeline for the proposed rulemaking process. According to INFO #9, proposed rules will be published by late September 2023. Input from Coloradans will be invited via participation in public meetings and submission of written comments. Final rules are expected to be issued by late fall 2023. After final rules are promulgated, the CDLE will then issue an updated INFO #9 covering the 2024 Amendments “in detail.”