Ask Our Experts: Navigating pay transparency

Answer:
In the jurisdictions that have enacted pay transparency laws, the details vary regarding which employers and job postings are subject to the law. However, in general, if a role may be filled by an individual covered by a pay transparency law, an employer should include pay information in the job posting. Given that pay transparency laws are becoming more common every year, it is increasingly likely that an applicant will reside in a state that requires pay information in job postings. (Keep in mind, too, that some laws apply when a role reports to a supervisor or worksite in a state with a pay transparency law, even if the employee works from elsewhere.)

Employers that engage in nationwide recruiting for remote roles have several options, each with various advantages and drawbacks:

• An employer may specify in a job posting the states in which an applicant may or may not reside and comply with the pay transparency laws, if any, of the states in which it is willing to hire. For example, an employer that is not prepared to comply with the Washington pay transparency law may indicate in a job posting that the role may not be filled by an individual based in Washington. However, with this approach, an employer may lose out on qualified candidates.
• An employer may create different versions of a job posting to be used in different locations, tailoring the information to each applicable pay transparency law. This may be complicated to manage logistically.
• An employer may write a single comprehensive job posting that complies with the strictest or most extensive pay transparency requirements and use the same posting nationwide. Currently, the Washington pay transparency law is the most extensive in terms of the information and the level of detail required in job postings, but certain other states (such as Colorado) have their own unique requirements.

Answer:
Under California’s pay transparency law, pay scale means a good faith estimate of the salary or hourly wage that the employer reasonably expects to pay for the position upon hire. If an employer would consider candidates who would be entitled to a local minimum wage higher than the state minimum wage, that fact would affect the employer’s reasonable expectations of the pay for the role and should be reflected in the job posting.

The California Labor Commissioner’s Office has not directly addressed this issue in its guidance about the pay transparency law. Some possible options for handling this scenario include:

• Listing separate pay ranges for different locations, taking local minimum wages into account as appropriate;
• Limiting the locations from which the employer is willing to consider candidates and including that information in the job posting; or
• Raising the listed pay range to meet or exceed all applicable local minimum wages in California.

Answer:
Although the laws vary somewhat from state to state, pay transparency requirements typically apply only to job postings – that is, advertisements for a specific position that describe desired qualifications and invite candidates to apply. General “Help Wanted” signs, fliers or similar postings that do not reference a specific position are typically not considered job postings and thus would not be required to include a pay range. But if a hiring flier does advertise a specific position and invite candidates to apply, it would likely meet the definition of a job posting and would be required to include a pay range in a state with a pay transparency law.