Equal Pay Transparency Laws and Immigration Related Green Card Recruitment
Please note that EPT rules will change over time, this article is only current as of November 15, 2022
The recent trend in states adopting Equal Pay Transparency (EPT) laws, which typically require the disclosure of pay ranges in recruitment, also implicates immigration considerations. These considerations come into play for employers engaging in recruitment practices required to satisfy a testing of the U.S. labor market, as dictated by immigration regulation under the typical employer-sponsored PERM Green Card process.
Each company participating in the sponsorship of Green Cards for their employees should be sure to have their employment counsel and immigration counsel work together to ensure that immigration-related recruitment practices are aligned with the applicable EPT-related best practices as defined by employment and general counsels.
Immigration law firms should also be aware that even though the immigration regulations do not require a posting of salary information in PERM-based recruitment, this does not mean that you are necessarily relieved of a duty to ensure that any company-related recruitment be in line with local and State EPT laws. It is critical to work hand in hand with corporate employment counsel of each employer.
Currently several states (CO, CT, MD, NV, NJ, OH, NYC) have regulations in place with CA and WA to become effective in short order. Although it is unclear when enforcement by state agencies of these rules will begin, this is a major change that many companies and their legal counsel will now have to interpret and apply.
We herein provide some brief FAQs relevant specifically to CA but in many ways relevant for all EPT law states. Please note that each states’ EPT laws vary and should be considered on a case by case basis with employment counsel and immigration counsel. We are available to consult on these issues as needed so don’t hesitate to reach out to set up a time to chat directly via this link.
General Immigration FAQs based on California Equal Pay Transparency laws
Q. What is the idea behind EPT Laws?
A. The idea behind EPT laws is to hold companies accountable for equitable wage and hour practices by allowing for pay transparency to candidates and employees.
Q. What information needs to be displayed in job posting under the EPT laws in CA? Only a salary range? Benefits? Anything else?
A. In CA, job postings only need a pay scale which is defined as, “the salary or hourly wage range that the employer reasonably expects to pay for the position.”
Q. When are CA EPT laws effective?
A. January 1, 2023
Q. Will enforcement begin right away and what are the potential penalties or implications?
A. Penalties can be awarded within a range of $100 to $10,000 per violation. It is unclear when enforcement may begin but plaintiffs’ will add these violations to the list of grievances they bring on behalf of employees.
Q. Do these rules apply to all companies with any employees in CA?
A. Yes, this new rule applies to CA companies with employees in CA.
Q. Is there a company size element to these rules?
A. For pay scale on job postings, it applies to employers with 15 or more employees.
Q. How long do employers need to maintain job title and wage rate history records for?
A. 3 years. Note, that if an employer fails to keep records in violation of this section, there shall be a rebuttable presumption in favor of the employee’s claim.
Q. How does the new EPT law affect current employees?
A. Current employees should be provided a pay scale for their position upon request.
Q. If I am headquartered in CA but I am looking to hire workers who telecommute from anywhere in the nation, am I still subject to the CA EPT laws?
A. It does not appear to apply to CA entities with only employees outside of CA. Bear in mind, however, you may need to comply with other states’ EPL requirements.In NYC and CO it appears that their rule applies to any jobs that can or will be performed, at least in part, in NYC or CO. This means the statute seemingly applies to all listings for remote positions that can be performed wherever the employee resides because the position could be filled by an applicant who lives in NYC or CO who would thus work remotely in these areas. Accordingly, the statute has reach beyond employers with a physical presence in the state.
How do EPT Laws impact Immigration Programs and Green Card Cases?
While PERM-based Green Card recruitment requirements do not require the disclosure of wages in the mandatory testing of the U.S. labor market, these EPT laws will now force employers in impacted localities to disclose such wage offerings. The Department of Labor also requires all testing of the labor market to be completed in good faith and last year's Facebook (Meta) settlement with the DOJ also puts employers on notice that they should not stray too far from their normal, non-PERM related, recruitment efforts.
Any additional content that needs to be included in PERM-related ads, in particular when the outlet utilized is a newspaper, there is usually a rather significant cost impact. Where a company engages in batch recruitment, however, paying for ads once across multiple PERM cases, the additional cost burden is lessened.
As the specific requirements of these EPT laws vary from location to location this is yet another area of immigration practice where your immigration legal team needs to work with your General Counsel or employment law teams to ensure consistent and lawful recruitment.
Article By: Leiann Laiks (Employment Lawyer, Fusion Legal) & Hendrik Pretorius (Immigration Lawyer, ImmiPartner)
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