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.

As California moves toward a tentative reopening date of June 15, employers may be considering bulking up their workforce again. If hiring new employees, employers should consider the guidance issued by the California Commission on the Status of Women (“Commission”), regarding starting compensation.

The guidance from the Commission first sets forth the applicable California statutes that apply to compensation.

Under California labor Code section 432.3(e), employers are prohibited from:

  • Seeking salary history from applicants
  • Relying on salary history information to determine whether to offer employment or what salary to offer
  • Relying on prior salary to justify the disparity in compensation

The Commission guidance also includes suggested practices for setting starting salaries including:

  • Determining the company’s compensation philosophy. This includes determining what the company thinks about compensation, what the company values about employees, and what factors are important in recruiting new hires such as experience, training, relevant skills, etc.
  • Evaluating internal equity. The Commission explains this as considering what current employees are making that do substantially similar work as a new hire. Employers should consider performing a gender and race/ethnicity-based analysis of pay for current employees in substantially similar jobs.
  • Formulating questions to ask applicants to assess whether the company and the applicant’s expectations align, without asking about prior salary.
  • Setting salary ranges in advance of interviewing applicants.

It is important that employers document the factors they consider in setting each employee’s pay upon the time of hire. This is not only recommended to ensure that the decision process aligns with the company’s compensation philosophy but can serve as support should an employee bring a claim alleging there was a violation of the Equal Pay Act.

Jackson Lewis can assist employers with conducting a self-audit of their compensation structure or pay equity analysis, as well as defending when a claim is brought alleging violations of the Equal Pay Act. If you have questions about structuring starting compensation or pay equity issues, contact a Jackson Lewis attorney to discuss.

A lawsuit brought by female professional soccer players against the United States Soccer Federation (USSF) may be settled, partly.

In 2019, female professional soccer players on the United States Senior Women’s National Team, including well-known players like Megan Rapinoe, filed a collective action in federal court in California alleging the USSF violated the players’ rights under the Equal Pay Act (EPA) and Title VII of the Civil Rights Act.

Please find the rest of this article on our Collegiate & Professional Sports Law Blog.

An amendment to the Illinois Equal Pay Act of 2003 requires that, beginning March 23, 2024, employers with more than 100 employees in Illinois must certify compliance with the Equal Pay Act by obtaining an Equal Pay registration certificate from the state Department of Labor.

Under the amendment signed by Governor J.B. Pritzker on March 23, 2021, businesses must pay a $150 filing fee and submit a statement of compliance with equal pay to the Department of Labor for certification. To obtain the certificate, businesses required to file a federal EEO-1 report (generally companies with more than 100 employees) also must include a copy of their most recent EEO-1 report, and additionally submit a list of all employees in the past calendar year, categorized by gender and race/ethnicity with corresponding wages paid to each employee over that period. Figures are to be calculated to the nearest hundred dollars.

Please find the rest of this article on the Jackson Lewis Publications Page.