impact of equal pay transparency laws on PERM recruitment practices | Donelson Baker

Employers applying for labor certifications/PERMs on behalf of their workers should be prepared for changes to the hiring process that will be governed by Equal Pay Transparency (EPT) laws. Many states have enacted EPT laws that could have a significant impact on the PERM process. Department of Labor (DOL) regulations do not require employers to include a salary or salary range in Sunday newspaper advertisements or the three additional recruiting stages for professional positions (e.g., job search, local or ethnic newspaper, employer’s website, etc.), but regulations require employers to list a salary or salary range in the filing notice posted at the workplace of the employer. This disclosure and inclusion of salaries in all forms of recruitment during a labor certification process must now be viewed through the lens of recently and soon to be enacted EPT laws in various states.

States that currently have EPT laws that require salary disclosure include Colorado, Connecticut, Maryland, Nevada, New Jersey, and Ohio. California, Rhode Island, and Washington State passed EPT laws that go into effect January 1, 2023. New York’s EPT law went into effect November 1, 2022. Not all state EPT laws require salary information is not published in a job posting. , but some require it to be provided to a candidate upon request at the time an offer of employment is made.

Not all EPT laws are the same and differ by location. For example, in California, employers with 15 or more employees will be required to include salary ranges in their printed job postings. Regardless of the number of employees, all California employers will be required to disclose the salary range to job applicants who request this information. In Rhode Island, all employers are required to provide salary or pay range to job applicants upon request prior to discussing compensation.

The Colorado Department of Labor and Employment (CDLE) has recognized the difficulty of reconciling state EPT requirements with PERM obligations. Therefore, for the time being, the CDLE has stated that it will not apply the EPT rules in the recruitment of PERMs, but it will also not issue written guidelines to confirm its position. If you are recruiting in Colorado, you must confirm that the CDLE position has not changed before you begin recruiting. Specific salary disclosure requirements should be carefully considered when recruiting for labor certification in an EPT jurisdiction to ensure that the recruitment process complies with applicable EPT laws.

The Department of Labor provides a interactive map which shows which states have equal pay or pay transparency protections, as well as a table with the details of those protections for each state.

EPT laws requiring salaries to be published in job postings may impact an employer’s PERM application, as PERM rules do not override relevant EPT salary disclosure requirements. Although EPT laws do not change PERM regulations, states with EPT laws will need to incorporate them into their PERM practices, including displaying salaries or salary ranges in their advertisements, where applicable. Because EPT laws vary from state to state, employers should consult with their labor attorney to ensure that their PERM program and recruitment methods comply with local EPT rules.

Debra Amann, a paralegal at Baker Donelson, contributed to this article and is not admitted to the practice of law.