PERM Process & Equal Pay Transparency Laws
Recently, several states and localities have passed Equal Pay Transparency (EPT) laws, which could have an impact on the PERM process for employers conducting labor market testing efforts within those states. EPT rules are not uniform and differ by locality, with some not requiring that salary information be part of the published job posting but rather be provided upon request at the time an offer of employment is made.
The most recent and pending changes in states and localities regarding EPT laws include:
All employers located within Cincinnati, Ohio, with 15 or more employees, including referral and employment agencies, must provide the wage range for a given position to job applicants upon reasonable request, provided the applicant has been given a conditional offer of employment for the position. This does not include any local, state, or federal government except for the city. This requirement has been in effect since March 1, 2020.
All employers in the state of Maryland must provide the wage range for a given position to job applicants upon request and have been required to do so since October 1, 2020.
In Colorado, all employers are required to disclose hourly or salary compensation, or a range of compensation, and a general description of any benefits and other compensation for each job, promotion, or transfer opportunity in job postings. This requirement has been in effect since January 1, 2021. A posted compensation range may extend from the lowest to the highest pay the employer in good faith believes it might pay for the particular job, depending on the circumstances. An employer may ultimately pay more or less than the posted range, if the posted range was the employer’s good-faith and reasonable estimate of the range of possible compensation at the time of the posting.
In Connecticut, all employers must provide the pay range for a given position to job applicants by the earliest of the following dates: upon the applicant’s request or either prior to or at the time of an offer being extended to the applicant. Employers also must provide the pay range for an employee’s position upon the employee’s hiring, a change in the employee’s position, or an employee’s request for a pay range. This requirement has been in effect since October 1, 2021.
All employers in the state of Nevada must provide the pay range or rate for a given position to job applicants who have completed an interview for a position. They also must provide a pay range or rate to employees who have applied for a promotion or transfer; completed an interview for promotion or transfer and have been offered the promotion or transfer; and requested the pay range or rate for the promotion or transfer. This requirement has been in effect since October 1, 2021.
Jersey City, New Jersey
All employers in Jersey City, New Jersey, with 5 or more employees are required to include salary ranges in job postings and have been since June 15, 2022. Employers must disclose the minimum and maximum salary, or hourly wage, and benefits for each job, promotion, or transfer opportunity. The range may extend from the lowest to the highest salary that the employer in good faith believes at the time of the posting it would pay.
New York City, New York
As of November 1, 2022, New York City has been requiring all employers with 4 or more employees to disclose the minimum and maximum salary or hourly wage for each job, promotion, or transfer opportunity. The range may extend from the lowest to the highest salary or hourly wage the employer in good faith believes at the time of the posting it would pay. The law does not cover jobs that cannot or will not be performed, at least in part, in the city.
As of January 1, 2023, California will be requiring all employers with 15 or more employees to post pay ranges in their written job postings. Regardless of how many people they employ, all employers in California will be required to disclose the pay range for a given position to job applicants who request that information. In addition, all employers must maintain job title and pay history records for each employee for the duration of employment plus three years after the end of employment.
As of January 1, 2023, Rhode Island requires all employers to provide a pay range or rate for a given position to job applicants upon request and must do so prior to discussing compensation.
As of January 1, 2023, Washington State requires all employers within the state with 15 or more employees to disclose in each job posting the wage scale or salary range and a general description of all benefits and other compensation offered to the hired applicant.
Effects on the PERM Process
The requirements to publish pay in job postings will impact employers’ PERM programs, specifically labor market testing activities initiated prior to the issuance of prevailing wage determinations (PWDs). To be clear, the term “job postings” in EPT laws may not just be limited to the PERM Notice of Filing posting.
It is important to note that while PERM regulations do not require newspaper/journal advertisements or other labor market testing activities to contain a wage or wage range, an employer must include a wage or wage range in the Notice of Filing and the wage or lower end of the wage range must be at or above the prevailing wage determination issued. These rules, however, do not override relevant EPT requirements, which may require disclosure of salary information not only in the Notice of Filing.
Additionally, EPT laws do not change the PERM regulations. Specifically, despite what PERM regulations require, if applicable EPT laws require disclosure of salary information, even if the PERM regulations do not require it, an employer must comply with both. Therefore, members with employers testing the labor market in localities affected by EPT laws will have to incorporate the EPT laws into their PERM practices and should consult with local employment counsel to ensure adherence to the EPT rules.
PERM is a very complex area of immigration law. If you have questions on the PERM process, be sure to contact Berardi Immigration Law today!