Governor Newsom Signs Bill Imposing Game-Changing Pay Transparency Requirements

On September 27, 2022, California Governor Gavin Newsom signed the state’s pay transparency bill into law, imposing several new and unprecedented requirements on California employers. With the signing of Senate Bill (SB) 1162, effective January 1, 2023, California will join Colorado, Washington, New York City, and other municipalities, in requiring that employers disclose pay ranges in job postings. California will break new ground in also requiring reporting on other demographic and pay information to the state.

Illinois Issues Proposed Regulations in Connection With Equal Pay Registration Certificate Requirements

The Illinois Department of Labor (IDOL) has, at long last, issued proposed rules implementing its equal pay registration certificate requirements. As a reminder, Illinois is setting deadlines for covered employers to apply for certification on a rolling basis. The deadline for the first round of employers to file for certification is just days away.

New York City Council Passes Amended Salary Disclosure Law, Paving the Way for Enactment

On April 28, 2022, the New York City Council passed Int. No. 134-A, which revises Local Law 32, New York City’s previously enacted salary disclosure law. In order to become law, the bill must be signed by New York City Mayor Eric Adams. While the mayor has thirty days to consider the bill, timing is key as the current salary disclosure law is set to take effect on May 15, 2022.

New York City Council Proposes Amendments to Pay Transparency Law

On March 24, 2022, the New York City Council took up a new bill, Int. No. 134, which proposes changes to the local law enacted on January 15, 2022, regarding transparent pay practices. The local law, which is currently set to go into effect on May 15, 2022, makes it an “unlawful discriminatory practice” for employers with four or more employees to post job advertisements, internal promotions, or transfer opportunities without setting forth the anticipated salary ranges.

Washington Employers Required to Disclose Salary Range and Wage Scale in Job Postings Beginning January 1, 2023

On March 30, 2022, Washington Governor Jay Inslee signed into law Senate Bill (SB) 5761, a measure that requires employers to affirmatively disclose in each job posting open to applicants the salary range or wage scale to be offered, as well as a general description of all benefits and other compensation for the position.

NYC Commission on Human Rights Issues Guidance Regarding Minimum and Maximum Salaries in Job Postings

On March 22, 2022, the New York City Commission on Human Rights (NYCCHR) published long-awaited guidance regarding New York City’s salary disclosure law, which requires employers to post the anticipated “minimum and maximum salary” in job advertisements. The law, which was passed on December 15, 2021, and takes effect on May 15, 2022, requires employers to include a “good faith” salary range in any external or internal job posting, as well as promotion or transfer opportunity.

Illinois Equal Pay Act Requirements: Implementation Rules Still Pending as Rolling Registration Deadlines Approach

We had been holding off on publishing an update on the Illinois Equal Pay Act requirements in hopes that the State of Illinois would publish its proposed rules implementing the law. Those rules have not yet come. Accordingly, we are publishing this interim update. When the state announces its rules, we will issue further information.

OFCCP Proposes Changes to Pre-enforcement Notice and Conciliation Procedures

On March 21, 2022, the Office of Federal Contract Compliance Programs (OFCCP) announced that it would publish a notice of proposed rulemaking (NPRM), entitled “Pre-enforcement Notice and Conciliation Procedures,” in the Federal Register on March 22, 2022. OFCCP’s proposal would modify a 2020 final rule that had codified various procedures to resolve potential employment discrimination.

White House Focuses on Pay Equity and Transparency

While the Paycheck Fairness Act (S. 205) is stalled in the U.S. Senate, the White House has called for action on issues relating to pay equity. On March 15, 2022, which was women’s “Equal Pay Day” for 2022 in the United States, President Biden issued an executive order “promoting pay equity and transparency” within the federal workforce and among federal contractors.

Oregon Governor Signs Bill on Incentives, Bonuses, and Equal Pay Act Requirements

Oregon employers may want to be aware that on March 7, 2022, Governor Kate Brown signed into law amendments to the state’s Equal Pay Act detailed in Senate Bill (SB) 1514. As a result, Oregon employers may offer vaccine incentives, hiring bonuses, and retention bonuses until 180 days after the expiration of the COVID-19 state of emergency without running afoul of the Equal Pay Act.

Oregon Legislature Passes Equal Pay Act Amendments Extending Temporary Exclusion of Certain Incentive Payments

The Oregon Legislative Assembly recently passed Senate Bill (SB) 1514, extending the expiration date of temporary amendments to Oregon’s Equal Pay Act. The act prohibits employers from “discriminat[ing] between employees on the basis of a protected class in the payment of wages or other compensation for work of a comparable character,” unless the wage differential is based on certain bona fide factors.

California Posts Updated Reference Materials and FAQs for Filing 2021 Pay Data Reports

The California Department of Fair Employment and Housing (DFEH) posted updates to its California Pay Data Reporting Portal User Guide and California Pay Data Reporting: Frequently Asked Questions (FAQ) guidance for the 2021 reporting year on its pay data reporting landing page on January 31, 2022. The DFEH has set the deadline for filing 2021 pay data reports as April 1, 2022.

Common Reasons for Flagged Pay Differences

Some employers have a practice of periodically conducting statistical analyses of employee compensation, under attorney-client privilege, to identify potential areas of risk related to pay equity concerns. These analyses are usually focused on gender and race or national origin. Through these statistical analyses, employees are placed into comparator groups and the compensation of the employees in those groups is analyzed for differences that remain after controlling for relevant factors available in the data set. Such factors may include data points such as job title, tenure with the company, time in position, location/market, and performance ratings. Once the analysis has controlled for the available factors, the statistical model will flag those comparator groups where the pay differences are statistically significant and adverse to a particular demographic.

California Announces New Deadline for Filing 2021 Pay Data Reports and Promises Updated Reference Materials

The California Department of Fair Employment and Housing (DFEH) recently posted an announcement on its pay data reporting landing page stating the deadline for filing 2021 pay data reports is April 1, 2022. This is different from last year’s deadline of March 31, 2021, and earlier statements by the DFEH indicating that the filing deadline would be March 31 going forward after last year’s inaugural filing cycle. The announcement also provides notice that new versions of the filing portal, user guide, and template (a spreadsheet document including a blank pay data upload report, instructions, and two sample reports), and other resources will be available on February 1, 2022.

New York City Council Passes Bill Requiring Minimum and Maximum Salaries in Job Postings

On December 15, 2021, the New York City Council passed a bill that would require New York City employers with four or more employees (including independent contractors) to disclose minimum and maximum salary information in job postings. The bill, which has not yet been signed by the mayor, would amend the New York City Human Rights Law (NYCHRL) and go into effect 120 days after it is signed into law.

OFCCP’s Significant Changes for Federal Contractors: AAP Verification Approval and Review of EEO-1 Pay Data

At long last, on August 31, 2021, the Office of Management and Budget (OMB) approved the new system that the Office of Federal Contract Compliance Programs (OFCCP) developed for federal contractors to submit affirmative action programs (AAPs). The Affirmative Action Program Verification Interface (AAP-VI) is designed to provide covered federal contractors a method of entering, tracking, and submitting AAPs for review by OFCCP.

EEOC Extends Filing Deadline for EEO-1 Reports to October 25, 2021

On August 18, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that the prior August 23, 2021, EEO-1 filing deadline for the 2019 and 2020 EEO-1 reports has been moved to October 25, 2021. The EEOC cited the “continuing impact of the pandemic on business operations” as the justification for this two-month extension of the earlier deadline.

EEO-1 Filing Platform: More Changes for Acquisitions, Spinoffs, and Mergers

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it is loosening the requirement on companies to provide notice to the federal agency of acquisitions, mergers, and spinoffs. By way of background, in addition to requiring the submission and certification of two years of EEO-1 reports, the EEOC had created a new filing platform for the 2019 and 2020 EEO-1 filings, which are due by August 23, 2021. The transition to the new platform and the requirement to file two years of EEO-1 reports has resulted in a rocky EEO-1 filing cycle. As a continued sign of these difficulties, the EEOC implemented a major change to the procedure for handling mergers, acquisitions, and spinoffs for EEO-1 reporting.