Impact of Equal Pay Transparency Laws on PERM Labor Market Test

November 11, 2022

As of November 1, 2022, New York City, California, Rhode Island, Colorado, Connecticut, Maryland, Nevada, New Jersey, Ohio, and Washington have passed Equal Pay Transparency Laws. In many of these jurisdictions, these laws require that salary ranges be posted when they may otherwise not be required to do so by the U.S. Department of Labor in the PERM labor market test. Employers and attorneys should study each of these laws carefully to see how they impact PERM recruitment processes taking place in those locations.

Each of these laws varies in substance and may have a different effect on the same PERM recruitment case. For instance, some laws do not require that salary information be part of the published job posting but rather be provided upon request at the time an offer of employment is made. Others require that all employers must maintain job title and pay history records for each employee for the duration of employment plus three years after the end of employment.

Due to the Supremacy Clause in the U.S. Constitution, the state Equal Pay Transparency Laws do not override the federal U.S. Department of Labor market test requirements in a PERM case. Therefore, employers will need to comply with both local and federal laws to complete a successful PERM labor market test. The PERM regulations do not require newspaper/journal advertisements or other labor market testing activities to contain a wage or wage range. However, where required by the Equal Pay Transparency Laws, attorneys should include a wage or wage range in the Notice of Filing. As well, when the Prevailing Wage Determination comes back higher than the low end of the salary range, the recruitment posting will need to use the Prevailing Wage Determination as the low end of the salary range.

Attorneys and employers should look at the relevant law in their location and incorporate the Equal Pay Transparency laws into their PERM recruitment language. This will require close consideration of the new laws to ensure consistency and compliance with both local and federal laws. Our office welcomes inquires related to these regulations and looks forwards to assisting employers with compliance in this area.