PERM Process and Equal Pay Transparency Laws.

Equal Pay Transparency (EPT) laws have been passed in several states and localities, potentially impacting the PERM process for employers conducting labor market testing efforts within those states. The AILA DOL Liaison Committee has provided this update. As a reminder, New York City’s EPT rule has been in effect since November 1, 2022. Key Updates on Equal Pay Transparency Laws:

• Washington State: Effective January 1, 2023, employers with 15 or more employees must disclose the wage scale or salary range and a general description of all benefits and compensation in each job posting.
• California: Starting January 1, 2023, employers with 15 or more employees must post pay ranges in written job postings. Additionally, all employers must disclose pay ranges to applicants upon request and maintain job title and pay history records for each employee for the duration of employment plus three years.
• Rhode Island: Effective January 1, 2023, all employers must provide a pay range or rate upon request to job applicants before discussing compensation.

States with Existing EPT Laws:

Colorado, Connecticut, Maryland, Nevada, New Jersey, and Ohio already have EPT laws in effect. These rules vary by locality, with some requiring salary information in job postings, while others mandate disclosure upon request at the time an employment offer is made. Impact on the PERM Process: The requirements to publish pay in job postings significantly impact employers’ PERM programs, specifically during labor market testing activities initiated before prevailing wage determinations (PWDs) are issued. While PERM regulations do not require wage or wage range disclosure in newspaper/journal advertisements, they do mandate this information in the Notice of Filing. Challenges for Employers:

• Retesting Efforts: If a PWD is issued higher than the wage listed in the job posting or the low end of a salary range, employers may need to redo testing efforts, including the Notice of Filing.
• Compliance with Both PERM and EPT Laws: Employers must ensure compliance with EPT laws alongside PERM regulations. While PERM regulations do not override EPT laws, employers must adhere to both to avoid non-compliance.

Action Steps for Practitioners:

1. Pre-Testing Wage Analysis: Conduct wage analyses before initiating testing efforts to anticipate the PWD. However, note that this method is not foolproof.
2. Consult Local Employment Counsel: Employers in areas affected by EPT laws should work with local employment counsel to ensure compliance with both PERM and EPT rules.
3. Incorporate EPT Laws in PERM Practices: Employers must integrate EPT law requirements into labor market testing activities, including job postings.