Pay transparency laws could affect PERM recruitment, unless preempted by federal law or exempted
One of the most common types of employment-based green card sponsorships requires PERM labor certification. But do employers have to comply with applicable pay transparency laws when making their PERM recruitment efforts? At this point, the answer is, “Maybe.”
When employers sponsor applicants for certain green cards, regulations of the Employment and Training Administration of the U.S. Department of Labor require the employers to first try to recruit U.S. workers for the position(s) at issue. The purpose of the requirement is to provide a “labor market test” to determine whether there is a shortage of fully-qualified U.S. workers interested in the position before issuance of a green card to a foreign national.
This recruitment process is known as PERM labor certification, which is short for Labor Certification for the Permanent Employment of Aliens in the United States.
Among the recruitment options, PERM requires employers to post the green card position online and with the appropriate state job bank, and internally and on the employer’s intranet, if applicable. The employer is also required to run two Sunday advertisements in the newspaper in the geographical area from which most qualified U.S. workers would be drawn. In most cases, the PERM process does not require employers to disclose the salaries for the positions. (Salary information must be included only in internal and intranet postings, and possibly state job bank postings.)
But recently a number of jurisdictions have enacted pay transparency laws, intended as a tool for fighting pay discrimination. These laws generally require employers to disclose the salary and/or salary range for a vacant position in their advertisements and internal job postings. Pay transparency laws are either in effect now or will take effect January 1 in California, Colorado, Connecticut, Maryland, Nevada, New Jersey, Ohio, Rhode Island, and Washington State, as well as New York City. The specific requirements, as well as the sanctions for non-compliance, vary.
Absent an exemption or a court ruling that state and local pay transparency laws are preempted by the PERM regulations, employers covered by pay transparency laws will have to include salary information in all of their PERM advertisements and postings. Federal preemption is a complicated topic, but one area of preemption is where a state law conflicts with federal law or poses an obstacle to the accomplishment of federal goals. It is not clear that compliance with state and local pay transparency laws would create a conflict or be an obstacle to the PERM process, and the USDOL’s Office of Foreign Labor Certification has taken the position that the laws are not preempted. However, according to the American Immigration Lawyers Association, the State of Colorado has exempted PERM recruitment from its pay transparency law for this reason.
Action needed?
The best outcome would be for other states and localities to follow Colorado’s lead, and interpret their pay transparency laws so that they do not apply in PERM recruitment situations. Immigration lawyers and chapters of the AILA could assist in the effort to persuade these states and localities to exempt PERM recruitment. Another positive result would be for an industry or advocacy group to challenge the pay transparency laws in court on federal preemption grounds.
If none of this occurs, employers, with the advice of counsel, will need to decide whether to comply with applicable pay transparency laws when making their PERM recruitment efforts. That decision is likely to turn on (1) how strongly the employer feels about including salary information in recruitment where not required by PERM, (2) the fines, penalties, and sanctions that could be imposed for violating applicable pay transparency law, (3) and the willingness of the employer to be a preemption “test case.”
Employers very well may decide that compliance with the laws is the path of least resistance.
