Pay Transparency Arrives at the Nation’s Capital

The District of Columbia will soon join an ever-growing list of jurisdictions that require employers to disclose compensation on job postings. 

The District of Columbia Wage Transparency Omnibus Amendment Act of 2023 was signed by the mayor on Jan. 12 and has now been transmitted to Congress for review. It requires pay scale disclosures and healthcare disclosures prior to the first interview.

While initial versions of the pay transparency law limited applicability to employers with a certain number of employees only, the final law applies to any employer with at least one employee in Washington, D.C., except for the city government and the federal government. Although the law is silent on application to remote positions, if the position could be filled in Washington, D.C., the law’s requirements could arguably be extended.  

Employers must disclose the minimum and maximum projected salary or hourly pay in all advertised job listings and position descriptions. The range shall extend from the lowest to the highest salary or hourly pay that the employer, in good faith, believes it would pay for the advertised job, promotion or transfer opportunity at the time of the posting. The employer must disclose to applicants, either in the job posting or before the first interview, the existence of healthcare benefits.

The law prohibits employers from screening applicants based on their wage history or seeking the wage history of a candidate from a former employer. It further prohibits an employer from: 1) requiring that employees refrain from disclosing or discussing compensation of other employees, and 2) discharging, disciplining, interfering with, or retaliating against an employee who inquires about their compensation.

The law defines “compensation” to mean “all forms of monetary and nonmonetary benefits an employer provides or promises to provide an employee in exchange for the employee’s services to the employer.” For example, an employer may not forbid an employee from discussing their salary, health or retirement benefits, or paid time off with other employees.

The law requires employers to post a notice informing employees of their rights under the Wage Transparency Omnibus Amendment Act of 2023. The notice must be posted in a conspicuous place in at least one location where employees congregate in the workplace.

The law does not provide for a private right of action, but does give enforcement authority to the Office of the Attorney General, which may investigate whether violations have occurred. The Attorney General is empowered to conduct interviews and depositions, issue subpoenas, and compel document productions. The Attorney General may bring a civil action against an employer or person violating the law and may seek restitution, injunctive, or compensatory relief. If the Attorney General’s Office prevails, it is entitled to attorneys’ fees and costs and statutory penalties equal to “any administrative penalties provided by law.” In addition, violations of the law may result in civil fines assessed by the mayor in amounts ranging between $1,000 and $20,000 per violation.

The law is currently undergoing a 30-day period of congressional review as required under the District of Columbia Home Rule Act, and then will be published in the District of Columbia Register. The slated effective date is currently June 30, 2024.  

Joy Rosenquist and Libby Henninger are attorneys with Littler in Sacramento, Calif., and Washington, D.C. © 2023. All rights reserved. Reprinted with permission.