Impact of Equal Pay Transparency Laws on PERM Recruitment Practices

​Employers that file Permanent Labor Certification (PERM) applications on behalf of the workers they are sponsoring for permanent residence need to prepare for changes in the recruitment process that will be driven by equal pay transparency (EPT) laws. Many states have enacted EPT laws that could have a significant impact on the PERM process.

The U.S. Department of Labor (DOL) regulations do not require employers to include a wage or wage range in the required Sunday newspaper ads or the three additional recruitment steps for professional positions (e.g., job search website, local or ethnic newspaper, or employer's website), but the regulations do require employers to state a wage or wage range in the notice of filing posted at the employer's worksite. This wage disclosure and inclusion in all forms of recruitment during a labor certification process must now be considered through the lens of recently and soon-to-be-enacted EPT laws in various states.

Some EPT Laws Take Effect Next Year

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

EPT laws differ depending on the location. In California, for instance, employers with 15 or more employees will be required to include pay ranges in their printed job postings. Regardless of the number of employees, all employers in California will be required to disclose the pay range to job applicants who request that information. In Rhode Island, all employers are required to provide the pay or pay range to job applicants upon request before discussing compensation.

Colorado May Not Enforce EPT Rules in PERM Recruitment

The Colorado Department of Labor and Employment (CDLE) has acknowledged the difficulty in reconciling the state's EPT requirements with PERM obligations. Therefore, at this time, the CDLE has stated it will not enforce EPT rules in PERM recruitment, but it also will not be issuing written guidance to confirm its position.

Employers should confirm that the CDLE's position has not changed before starting recruitment in Colorado. The specific wage disclosure requirements must be carefully reviewed when initiating recruitment for a labor certification in an EPT jurisdiction to ensure the recruitment process complies with the EPT laws in effect.

EPT and PERM Coordination Obligations

EPT laws requiring that wages be published in job postings can have an impact on an employer's PERM application because the PERM rules do not override relevant EPT wage disclosure requirements.

Employers may be required to disclose wage ranges in more recruitment methods than PERM rules would normally require and to redo these recruitment efforts at significant cost in the event prevailing wage determinations come back higher than expected. EPT rules may also require employers to disclose salaries or salary ranges to all applicants upon request, even when not required by the typical screening in the PERM process.  

While EPT laws do not change PERM regulations, employers in states with EPT laws will have to incorporate them into their PERM practices, including posting wages or wage ranges in their advertisements where required. Because EPT laws vary by state, employers should consult with their employment counsel to ensure that their PERM programs and recruitment methods adhere to local EPT rules.

Melanie C. Walker is an attorney with Baker Donelson in Chattanooga, Tenn. Debra Amann is a paralegal with Baker Donelson in Houston.