With the start of the new year, two additional states enacted laws requiring employers to provide salary ranges on job postings. On January 1, 2023, California and Washington enacted wage transparency laws, joining Colorado, New Jersey, and New York City. These laws were enacted in response to calls from advocates for fair treatment of similarly educated and experienced employees to prevent gender and racial pay discrepancies. These salary transparency laws could also impact required immigration postings and ads.
There are two immigration processes impacted by wage transparency laws: the posting notice for certain nonimmigrant applications requiring a Labor Conditions Application (LCA) and the first step of most employment-based permanent residency applications (PERM). Both processes are overseen by the U.S. Department of Labor (DOL).
The LCA requires employers to provide notice of the filing at the place of employment. Previously, employers were not required to list a range and instead would often list only the offered wage or prevailing wage, whichever was higher. Under the new laws, employers must include a wage range on each posting notice.
The PERM process requires a sponsoring company to test the job market with advertisements and job postings. The DOL does not require salary information to be posted on recruitment activities, except for the required physical notice of filing and in-house media. If, however, salary information is included, the DOL requires that the posted range not contain a wage rate lower than the DOL’s prevailing wage rate.
The California Law
In California, starting January 1, any company with 15 or more employees must include salary ranges in job postings. If job candidates request the salary range for the job opportunity, California’s law requires the employer to disclose the salary range regardless of the number of employees. If a violation occurs after January 1, 2023, the California Labor Commissioner’s office can impose penalties of $100–$10,000 per violation. Companies will not be penalized for the first violation but have to remediate by adding the salary range.
The California salary transparency rule does not specifically say how wide the pay range must be. The law simply states the salary or hourly wage range must be what the employer “reasonably” expects to pay for the position, seemingly defeating the purpose of the salary transparency laws.
The second component of the new law in California requires companies with 100 or more employees to report data on actual wages, broken down by pay, sex, race, and ethnicity. Two companies have already been hit with penalties for not submitting salary data, but the fines were not insubstantial and only amounted to $23,500.
The Washington Law
Washington’s salary transparency law, also effective January 1, 2023, provides that companies with 15 or more employees, with one based in Washington, must post salary ranges for all job postings. Washington’s law states that a job posting must include the wage scale or salary range plus a general description of all the benefits and other compensation. Washington also clarified that the salary range must have a low and high number and not open-ended descriptions such as “$100,000 and higher.”
The posting must also include a general description of all benefits. Washington’s guidance states that benefits include health insurance, retirement benefits, an any other benefits typically reported for tax, including discretionary bonuses, stock options, relocation, or other forms of compensation offered to the applicant. Washington further clarified that links can be provided in the job postings that the candidate or interested job applicant can click to get more details. However, this does not excuse the company from providing the wage range and general information about the benefits.
Penalties for noncompliance with the Washington salary transparency law include fines ranging from $500 for a first violation to $1,000 or 10% of dames (whichever is greater) for a repeat violation. There are statutory dames that can be imposed up to the greater of actual damages or $5,000; interest of 1% per month on all compensation owed; and costs for attorneys’ fees.
The Colorado Law
Colorado’s salary transparency law has been in effect since January 1, 2021, and requires employers to disclose hourly or salary compensation or a range of hourly or salary compensation on all postings. Like Washington’s law, Colorado requires all postings to include a general description of all benefits and other compensation. Colorado was one of the first states to require companies to list the salary range in job postings. The Colorado Department of Labor and Employment (CDLE) has publicly acknowledged the difficulty in reconciling the state transparency law with the PERM regulations and has implied the law will not be enforced in this context but has not issued any written guidance to confirm its interpretation.
The New York City Law
New York City’s salary transparency law was effective November 1, 2022, and requires employers with four or more employees, with one based in New York City, to disclose the minimum and maximum annual salary or hourly wage in all job postings. The range may extend from the lowest to the highest annual salary or hourly wage. The law requires any written description for an available job, including internal promotions and internal transfers, to publish job salary range. It further requires that the salary range be set on the good-faith belief of what the employer will pay the eventual hire or successful applicant. The range does not, however, have to include other forms of compensation. First-time violators will typically not be penalized provided the alleged violation is cured within 30 days. Subsequent violations of the salary transparency law can rise to $250,000.
Impact on Immigration
Each law has unique compliance requirements and concerns. Employers will often need to provide wage and benefit information, exceeding what is required under immigration regulations, but carefully maintain immigration compliance. Employers must comply with both the state pay transparency laws and the DOL prevailing wage requirements, which may not be consistent with ranges listed for other positions. These differences could optically raise questions employment counsel should be aware of. For employers contemplating placing ads or posting notices for immigration purposes, we strongly recommend speaking with immigration counsel to ensure compliance with immigration regulations.
Sophia Goring-Piard is a partner at Fragomen, an immigration services provider.
Da’Niel Rowan is a partner at at Fragomen’s Silicon Valley office, where she provides counsel on all major employment-based temporary and permanent visa categories to large multinational corporations in the technology sector. Prior to joining Fragomen, Da’Niel was a legal assistant and domestic violence advocate at the International Institute of Buffalo in Buffalo, New York. She has also worked with victims of domestic violence and human trafficking at Bay Area Legal Aid and the Katherine and George Alexander Community Law Center.