Hot off the press on Equal Pay Day (the day that symbolizes how far into the year women must work to earn what men earned in the previous year) OFCCP has released a new compensation directive. Directive 2022-01: Pay Equity Audits does little to set out how contractors should be looking at their pay systems and instead focuses on OFCCP’s review of, and right to request, the analysis. Read more.

On February 17, the California Senate introduced SB 1162, which—if passed—could give California the most aggressive pay transparency laws in the nation. Again. The draft California law enhances two common state law pay transparency strategies: proactive wage range disclosure and pay data reporting.

Proactive Wage Range Disclosure

California was the first state in the nation to pass a mandatory pay transparency statue. It requires California employers to provide external applicants the “pay scale” for a job they are applying to “upon reasonable request.” At the time, this was cutting edge. Since then, state after state have passed their own pay transparency requirements. Even some cities have joined in. Some new pay transparency laws require disclosure to applicants. Others require disclosure to employees. Some require disclosure upon request. Others require disclosure proactively.

Colorado’s pay transparency law is currently the most aggressive. It requires employers include pay and benefits disclosures in job postings—including for remote roles. It also requires written notice to Colorado employees before it decides to hire, change the job title, or change the job duties, authorities, or opportunities of any employee.

In short, California’s draft law largely mirrors Colorado’s approach. Like Colorado, it would require pay scales to be included in each job posting. It is unclear if California intends this law to reach jobs beyond its state boundary like Colorado.

And like Colorado, the California law would require “[a]n employer [to] announce, post, publish, or otherwise make known any opportunity for promotion … to all current employees on the same calendar day and prior to making a promotion decision.” But California goes farther. The bill expressly requires that these promotional notices include the pay scale for the position. Colorado created this requirement through rule making and sub-regulatory guidance.

Pay Data Reporting

In September 2020, California passed the nation’s first state-level pay data reporting obligation. That law requires employers with 100 or more employees to provide the number of employees by race, ethnicity, and sex in each of the 10 EEO-1 Job Categories (following the EEO-1 Instruction Booklet) and within each of the “pay bands” used by the U.S. Bureau of Labor Statistics Occupational Employment Statistics classifications. Employers submitted their first reports in March 2021.

But SB 1162 proposes a few key changes to this still-new requirement. For example, it would:

  1. Expand the pay data reporting obligation to include “employees hired through” a third-party that supplies workers to perform labor within the reporting employer’s usual course of business—and disclose the “ownership names of all labor contractors used to supply employees”;
  2. Impose a monetary penalty for not filing the report the first time of more than $100 per employee, and of not more than $200 per employee for any subsequent failure to file the report;
  3. Require employers to disclose the specific median (middle) and average hourly rate of pay for employees within each job category, race, ethnicity, and sex combination (to top of the current disclosures);
  4. Require the state “publish each private employer’s pay data report … on an internet website available to the public” but not any individually identifiable information that is associated with a specific person; and
  5. Shift the due date to the “second Wednesday of May” beginning in 2023.

To be clear, this bill was just introduced and has a long journey to become law. But it’s certainly one California employers will want to watch. We certainly will be.

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

Pay equity is a critical issue for employers — and it should be top of mind for those in the manufacturing industry.

A number of states enacted laws designed to strengthen equal pay protections and improve pay transparency in 2021, and more are expected to follow. These laws reflect a continued and growing focus on the “gender pay gap” and a growing risk for employers that do not take steps to address any inequities in their own workforce.

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

 

The state’s Equal Pay Registration Certificate requirements of the Equal Pay Act will take effect March 24, 2022, according to the Illinois Department of Labor (IDOL). A number of employers have received IDOL notices that they were selected for the first registration deadline: May 25, 2022.

Illinois requires businesses with more than 100 employees to obtain from the IDOL an equal pay registration certificate certifying compliance with the Equal Pay Act. To obtain the certificate, businesses will have to provide workforce compensation data to the IDOL and affirm compliance with several federal and state pay equity statutes.

The IDOL announced that businesses will receive notification of their registration deadline no less than 120 days before their assigned deadline. The assignment of deadlines is ongoing, and the IDOL said that some businesses may not receive their assigned registration deadline for over a year.

If you have any questions, please contact a Jackson Lewis attorney.

 

As New York City Mayor Eric Adams did not take action within 30 days of receipt from the New York City Council, the Council’s legislation requiring most New York City employers to include salary ranges on job advertisements has become law.

This legislation is similar to recent enactments in numerous other jurisdictions, including Colorado and Connecticut, but its focus on job advertisement disclosures of salary range is unique.

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

After many delays, employers nationwide just filed their 2020 EEO-1 reports in November.  But it’s already time for California employers to begin preparing their annual pay data submission to the Department of Fair Employment and Housing (DFEH). The Background In 2020, California Governor Gavin Newsom signed into law Senate Bill (SB) 973,…

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The Connecticut Department of Labor has published guidance regarding the state’s “An Act Concerning the Disclosure of Salary Range for a Vacant Position,” which goes into effect on October 1, 2021.

In reviewing this guidance, employers should be mindful that it does not constitute legal advice and is non-binding. A court may have a different interpretation of the law’s provisions.

To read the full article, please click here.

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 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.