As we previously reported, as of November 1, 2022, New York City’s salary transparency law requires covered employers who advertise or post a job, promotion, or transfer opportunity for a role that can or will be performed, at least in part, in NYC to disclose in such advertisement of posting the minimum and maximum annual salary or hourly wage that the employer in good faith believes it would pay for the position.

As we look ahead to 2023, similar statutes will take effect in California, Washington, and Rhode Island. Here are some highlights about pay transparency legislation that will take effect on January 1, 2023:

California:

In California, § 432.3 of the Labor Code, as amended requires employers with 15 or more employees to “include the pay scale for a position in any job posting.” The law does not define a “job posting,” but clarifies that it includes posts by third-parties engaged by an employer to advertise a role. Additionally, all employers must provide the pay scale for a position to an applicant “upon reasonable request,” or to an employee “for the position in which the employee is currently employed.” Penalties for failing to disclose pay scales are up to $10,000 per violation.

Furthermore, as we previously reported, the California legislation requires that employers provide certain employee pay data to the California Civil Rights Department. Employers with 15 or more employees must report median and mean hourly wages by each combination of race, ethnicity and sex within a given job category. The first reports, which shall be based on 2022 data, are due on May 10, 2023. Penalties for failure to comply with reporting requirements are up to $200 per employee.

Washington:

Washington’s Equal Pay and Opportunities Act, R.C.W. § 49.58.110, as amended requires employers with 15 or more employees to “disclose in each posting for each job opening the wage scale or salary range.” Notably, the Washington legislation also requires employers to provide a “general description of all the benefits and other compensation to be offered to the hired applicant.” The State has released an administrative policy indicating that this description should include, but is not limited to “health care benefits, retirement benefits, any benefits permitting days off (including more generous paid sick leave accruals, parental leave, and paid time off or vacation benefits), and any other benefits that must be reported for federal tax purposes, such as fringe benefits.”

A “posting” under the Washington law is defined as “any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party.” The law expressly clarifies that the definition applies to “any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.”

Rhode Island:

Rhode Island’s Pay Equity Act, R.I. Gen. Laws ch. 28-6, was amended to impose new pay transparency requirements. Unlike the California and Washington laws, the Rhode Island law does not expressly require employers to post anticipated salary ranges in postings. Instead, it provides that, upon request, employers must “provide . . . an applicant for employment the wage range for the positon for which the applicant is applying.” Employers “should” disclose the range “prior to discussing compensation” for the position with the applicant.

However, even if not requested, employers “shall provide an employee the wage range for the employee’s position both at time of hire and when the employee moves into a new position.” Further, employers must provide a wage range for an employee’s current position at their request at any time “during the course of employment.” “Wage range” is defined as the “lower and upper bounds that an employer is willing to pay an applicant for employment or does pay an employee.”

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In addition to these laws taking effect soon, proposed pay transparency legislation is currently pending in New York State, Massachusetts, and South Carolina.

In light of the current and developing legislation concerning pay transparency, employers should be proactive in ensuring their job postings are in compliance with all such laws that may apply to such postings.  To that end, employers should take note of how these laws define their scope of coverage when determining whether a given posting must include the salary, which is particularly important (and could be complicated) in cases where the position may be performed remotely.

Employers should also remember that pay transparency legislation exists at the local level as well. In addition to New York City, legislatures in Westchester County, NY, Ithaca, NY, and Jersey City, NJ – among other localities – have enacted local salary transparency ordinances.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Theresa Madonna Theresa Madonna

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide…

Theresa Madonna is an associate in the Labor & Employment Law Department and a member of the Employment Litigation-Discrimination, Harassment & Title VII Practice Group and the Employment Counseling and Training Group.

During her time at Proskauer, Theresa has focused on a wide range of employment matters, including employment discrimination litigation and client-counseling. She has assisted in representing employers in litigation and investigations related to claims of workplace harassment, discrimination, retaliation and wrongful discharge. In addition to her litigation practice, Theresa counsels clients regarding employee policies, handbooks, offer-letters and noncompetition and independent contractor agreements. She has gained experience across a wide variety of industries including health care institutions, education, real estate, media and entertainment, financial services and sports. As part of her pro bono practice, Theresa represents individuals in immigration matters and provides employment counseling to non-profit organizations.

Theresa earned her J.D. summa cum laude from Boston University School of Law, where she was a member of the Boston University Law Review and a Legal Research and Writing Fellow. During law school, she was a clinical student attorney and represented clients in employment, housing, and family law matters. Additionally, she interned for the Honorable Juan R. Torruella of the United States Court of Appeals for the First Circuit. Theresa also received Boston University School of Law’s William L. and Lillian Berger Achievement Prize for exemplary scholastic achievement.

Prior to law school, Theresa was an in-house paralegal at a Boston-based technology company.