On March 30th, Governor Jay Inslee signed into law SB 5761, which will require employers to include in each job posting salary or pay range and information about other compensation and benefits. The new law goes into effect January 1, 2023. Read more.
New York City Issues Guidance on Requirement to Disclose Salary Ranges in Advertisements
The New York City Commission on Human Rights published guidance for the recently enacted Local Law 32 of 2022, which requires salary transparency in job advertisements, effective May 15, 2022. New York City enacted legislation on January 15, 2022, requiring all covered employers to include a minimum and maximum salary for the position advertised. Unfortunately, the legislative language is minimal and vague. Much of the new guidance appears to be parallel to guidance Colorado provided for its salary disclosure law. Colorado is the only other jurisdiction that has issued such a broad salary disclosure law related to advertisements. Read more.
Washington State to Join the Growing List of States with Expanding Pay Disclosure Requirements
The rise of state pay transparency laws continues, this time with Washington doubling down on its most recent round of pay equity legislation. If new legislation currently on the desk of Governor Inslee becomes law, Washington employers will soon be required to make affirmative compensation-based disclosures to both applicants and employees.
To date, Washington has implemented one of the more moderate approaches to pay transparency. Under the current law, employers with 15 or more employees are required to provide applicants the “minimum wage or salary” for a position, but only after an offer has been made and upon applicant request. Similarly, employers must also provide the “wage scale or salary range” for internal transfers, but only after an internal transfer or promotion has been offered and upon employee request.
Washington is now poised to align itself with the more aggressive pay transparency regimes implemented in places like Colorado and New York City. Under the proposed legislation, Washington employers with 15 or more employees would be required to affirmatively disclose in all job postings a “wage scale or salary range” and a description of “benefits and all other compensation,” regardless of offer status or applicant request. Similarly, employers would also be required to disclose the “wage scale or salary range” for internal transfers.
Similar to many of its counterparts nationwide, the Washington legislation presents a certain level of uncertainty for employers.
The legislation first fails to define the terms “wage scale or salary range” and “benefits and all other compensation,” further compounding the ambiguity by striking a portion of the current law that allows for the provision of a “minimum wage or salary” if no “wage scale or salary range” exists.
It is likely that subsequent guidance will be needed to provide employers with direction on implementation and compliance, much like what we have seen in states like Colorado that have sought to clarify similar ambiguity.
If signed into law, these requirements will go into effect January 1, 2023.
President Biden Signs Executive Order Promoting Pay Equity and Transparency
In addition to digesting OFCCP’s release of a new directive on compensation, government contractors may soon see new regulations around inquiries into and the use of prior salary information. In conjunction with Equal Pay Day, President Biden signed a new Executive Order on Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency. Read more.
Oregon Extends Exemption for Certain Payments from Equal Pay Act
Last year, the Oregon legislature temporarily amended Oregon’s Equal Pay Act to exempt vaccine incentives and hiring and retention bonuses from pay equity considerations, as reported here. The temporary amendments were scheduled to expire March 1, 2022. More recently, the legislature extended the expiration date for the amendments. SB 1514 permits employers to continue offering vaccine incentives and hiring and retention bonuses through the end of Oregon’s COVID-19 state of emergency, plus 180 days, without running afoul of the Act. On March 7, 2022, Governor Brown signed the bill. At present, Oregon’s COVID-19 state of emergency is scheduled to expire on April 1, 2022. In the event Oregon’s Governor does not extend the state of emergency, employers may continue through September 28, 2022, using incentives to encourage COVID-19 vaccinations among employees, as well as hiring and retention bonuses to attract and retain employees. When the temporary amendments expire, the Act will revert to prohibiting employers from compensating employees at higher rates (including incentives and bonuses) than the employer pays employees in a protected class for work of comparable character, unless the differential is fully explained by certain nondiscriminatory factors.
If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work.
OFCCP Releases New Compensation Directive
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.
California Draft Bill Doubles Down on Pay Transparency
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:
- 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”;
- 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;
- 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);
- 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
- 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.
Why Pay Equity Matters for Manufacturers and How Manufacturers Can Proactively Reduce Risk
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.
Illinois Begins to Issue Compliance Deadlines for Equal Pay Reporting
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.
New York City Employers Will Soon Be Required to Include Salary Ranges on Job Advertisements
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.