Frequently, employers file Permanent Labor Certification (“PERM”) applications for foreign workers they intend to sponsor for legal permanent residency. Many states now have enacted equal pay transparency (EPT) laws that could significantly affect the recruitment portion of the PERM application process.
U.S. Department of Labor (DOL) regulations concerning PERM applications require that they publish employment ads for the position at issue in the Sunday newspaper. In addition, employers must take three additional recruitment steps for professional positions. DOL regulations only require the employer to disclose a wage or wage range for the position in the notice of filing it posts at its worksite.
Passing EPT laws in various states will require employers in those states to abide by the wage disclosure requirements of those laws. Colorado, Connecticut, Maryland, Nevada, New Jersey, and Ohio have EPT laws in effect. In addition, California, Rhode Island, and Washington’s EPT laws will go into effect as of January 1, 2023. In acknowledgment of the inherent conflict between DOL regulations regarding PERM applications and state EPT laws, the Colorado Department of Labor and Employment (CDLE) has indicated that it will not enforce EPT rules regarding PERM recruitment now. Still, the agency will not confirm that position in writing. Employers must carefully monitor CDLE’s position for any changes before beginning recruitment in Colorado.
Not all EPT laws are the same. For example, some states, like California, require disclosure of wages or wage ranges in job postings. Other states, like Rhode Island, require that employers furnish it to applicants upon request before discussing compensation with them.
PERM regulations do not override state EPT laws. As a result, employers recruiting in states with EPT laws may need to disclose wages or wage ranges in more recruitment methods than in states without EPT laws. Employers may need to redo their recruitment efforts at their own expense in affected states if the prevailing wage determination is higher than expected.
HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.
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