Employers face new challenges in navigating state and local pay equity laws. New York City joins a number of other jurisdictions that now require employers to disclose pay ranges when advertising job postings – including for incumbents as well as new hires. This law is set to take effect on May 15, 2022 (unless delayed by pending legislation discussed below). The New York City Commission on Human Rights (the “NYCCHR”) recently published a fact sheet providing guidance with regard to Local Law 32 of 2022 (the “NYC Law”). The NYC Law requires all covered employers to include a minimum and a maximum salary in any advertisement for a job, promotion, or transfer opportunity.
On Equal Pay Day (March 15, 2022), President Biden issued an executive order aimed at advancing the effectiveness in federal contracting by promoting pay equity and transparency in tandem with the U.S. Department of Labor’s Office of Federal Contract Compliance Programs’ (OFCCP) first formal directive (DIR 2022-01) during the Biden administration on pay equity in federal contractors. The directive addresses the OFCCP’s position on obtaining compensation related documents sought during the agency’s audits, which includes pay equity review.
On March 24, 2022, a new pay data reporting requirement will take effect for certain private employers in Illinois. Detailed discussions of this requirement and other aspects of the recent amendments to the Illinois Equal Pay Act of 2003 have appeared in prior posts, which are accessible here and here. Below are some key things you should know now.
In recent years, Illinois has enacted a complement of laws designed to address historical pay inequities among genders, races and other protected categories. Those laws prohibit employers from requesting or relying on an applicant’s salary history when making hiring decisions and impose a standard for proving equal pay claims less rigorous than the federal standard. Last summer, we reported here of yet another Illinois equal pay development, when Illinois amended the Equal Pay Act of 2003, 820 ILCS 112/1, et seq. to require certain employers to obtain an equal pay registration certificate from the Illinois Department of Labor (IDOL) between March 24, 2022 and March 23, 2024, and every two years thereafter.
Employers who have more than 100 employees in the state of Illinois and are required to file an EEO-1 report with the EEOC are subject to this certification requirement. The window for obtaining the required certificate opens on March 24, 2022, and IDOL recently announced that it had begun sending notices to employers reminding them to register with IDOL.
On March 4, 2019, the U.S. District Court for the District of Columbia issued an order lifting the stay on the EEO-1 pay data reporting requirements, leaving employers uncertain about their obligations.
As we previously discussed, for the last 50 years, large employers with 100 or more employees, and federal contractors with 50 or more employees, must submit annual Employer Information Reports (EEO-1) to the Equal Employment Opportunity Commission (EEOC), which identifies the number of employees working for the company by job category based on race, sex and ethnicity.
Massachusetts recently joined a growing list of states amending their equal pay legislation. On July 1, 2018, the Act to Establish Pay Equity, originally passed in 2016, took effect, amending Massachusetts’ existing Equal Pay Act.
The law bans pay differentials on the basis of sex where two people perform comparable work, adopting the more liberal “equal pay for comparable work” standard, as opposed to the federal law’s “equal pay for equal work” standard. Comparable work is defined as work that requires substantially similar skill, effort, and responsibility that is performed under similar working conditions. Like other equal pay laws, employers can plead certain affirmative defenses in response to an employee’s claim of pay discrimination, if the employer can show the pay differential is due to: