Pay transparency legislation is spreading across the United States, with many state and local jurisdictions requiring employers to disclose pay ranges on job postings.
To shed further light on how to navigate these laws, WorldatWork hosted a member-only webinar to discuss strategies for managing this disclosure. Scott Pechaitis, an attorney in Jackson Lewis’ affirmative action practice group, led the webinar and shared practical ways to prepare and comply with emerging disclosure laws and advance pay equity outcomes.
WorldatWork members engaged Pechaitis with a slew of questions and concerns over these new requirements, including some potential unintended consequences with pay transparency. One such concern expressed is whether pay transparency laws create antitrust issues, as sharing job ranges could influence price fixing in the market by competitors or give unintended advantages.
Pechaitis acknowledged this worry, as organizations will be able to see what their competitors are willing to pay for a position.
“While compliance with the pay-in-posting laws alone would not be an antitrust issue, there could be a concern if competitors work together on deciding what to post/pay,” he said. “But that is not likely to stop the trend in new pay transparency laws. There is a chance this could lead to price uniformity in some areas or industries, but there is also the possibility the laws will create a need for more frequent increases in starting rates in difficult markets, due to the need to constantly ‘one up’ competition.”
Remote Job Postings and Geo Pay Differences
Given the increase of hybrid and remote work opportunities offered by organizations, WorldatWork members were also interested in learning about how certain pay transparency laws applied to jobs that could be performed remotely. For instance, if an organization based in Texas posted a job that could be performed remotely and was therefore available to candidates across the U.S., how would that company comply with various pay range information on the posting?
Pechaitis noted that as of now, Colorado’s pay transparency legislation and guidance is the only one that specifically addresses this question. Colorado’s law requires employers to include Colorado-specific pay rates and does not allow ranges that reflect pay outside the state. In its Interpretive Notice & Formal Opinion (“INFO”) # 9, the Colorado Department of Labor & Employment states “if the pay might be different inside and outside Colorado, the range should be what the employer would pay in Colorado.”
“New York City’s guidance on its pay transparency requirements does not address this question,” Pechaitis said. “No other major jurisdictions have published formal guidance on their pay transparency laws.”
The inverse of this scenario is an employer operating in Colorado or New York City, for example, that is also posting a job position that could be performed remotely. Pechaitis said the law still requires employers to post a salary range for the position, even though the company could be targeting candidates outside of those jurisdictions.
“If a company is a ‘covered employer’ in Colorado and New York City, then it is required to include pay information in all postings and advertisements for jobs that could be worked remotely,” he said. “We are waiting for formal guidance from California and Washington, whose pay transparency laws went live on Jan. 1, 2023.”
The full webinar, which delved much deeper into the various nuances of providing salary ranges on job postings, is available on-demand to WorldatWork members.
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