Reminder to Colorado Employers: Salary History Ban Goes into Effect January 1, 2021

In May of 2019, Hire Image reported that effective January 1, 2021, Colorado employers are prohibited from (1) seeking the wage history of a prospective employee; (2) relying on the wage history of a prospective employee to determine a wage rate; or (3) discriminating or retaliating against a prospective employee for failing to disclose wage history.

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For more information about the growing trend of salary history bans, please visit our Resource Library.

Colorado Issues Proposed Rules to Clarify Approaching Equal Pay Law

In preparation for Colorado’s Equal Pay for Equal Work Law going into effect on January 1, 2021, the Colorado Department of Labor and Employment recently published proposed Equal Pay Transparency Rules (“EPT Rules”).

Among other topics, the EPT Rules clarify the job posting requirement for Colorado employers to provide compensation information, a description of benefits, and promotion opportunities. Specifically, they state:

“Employers must include the following compensation and benefits information in each posting: (1) the hourly rate or salary compensation (or a range thereof) that the employer is offering for the position, including any bonuses, commissions, or other forms of compensation that are being offered for the job; and (2) a general description of all employment benefits the employer is offering for the position, including health care benefits; retirement benefits; any benefits permitting paid days off, including sick leave, parental leave, and paid time off or vacation benefits; as well as any other benefits that must be reported for federal tax purposes; but not benefits in the form of minor perks.”

With regard to a compensation range, the rules clarify that the range can extend from the lowest to the highest pay the employer reasonably believes could be paid for the particular job. However, an employer may pay more or less than the range, as long as what was posted was the employer’s good-faith and reasonable estimate at that time. For promotion opportunities, the employer must make “reasonable efforts” to announce or post all opportunities for promotion to all current employees in writing, with the job title, compensation and benefits, and how the employee can apply, at a minimum.

The rules are in a proposed status and open to public comment. They will be finalized prior to the law’s January 1st effective date.

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For more information about the growing trend of salary history bans, please visit our Resource Library.

Reminder for Maryland Employers: Salary History Ban Begins October 1, 2020

In April, Hire Image reported that Maryland passed a salary history ban prohibiting employers from seeking pay history from job applicants. That law goes in effect today, October 1st.

Under the law, employers may, however, confirm wage history voluntarily provided by an applicant after an initial offer of employment. They also must provide an applicant the wage range of the position for which the applicant applied, if requested.

Maryland employers should review their hiring practices and job applications to ensure they are in compliance with the new law.

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For more information about the growing trend of salary history bans, please visit our Resource Library.

Philadelphia Salary History Ban Finally Gets Effective Date

Effective September 1, 2020: Philadelphia employers are prohibited from inquiring about a prospective employee’s wage history, conditioning employment or consideration for an interview on disclosure of wage history, retaliating against a prospective employee for failing to comply with any wage history inquiry, or relying on the wage history of a prospective employee in determining their wages, unless the applicant “knowingly and willingly” disclosed their salary history to the employer.

This has been a long time coming, as this salary history legislation was originally passed in 2017. As we previously posted, the legislation was challenged on First Amendment grounds and later enjoined. In February of this year, a federal court reversed the lower court’s decision. Now, after three years of challenges and injunctions, Philadelphia’s salary history ban will become effective on September 1st.

If they haven’t already, Philadelphia employers should revise their hiring practices, including their job applications, to ensure they are not inquiring about an applicant’s salary history.

For more information, click here for the regulations and FAQs the Chamber of Commerce and the City of Philadelphia drafted.

Original ordinance, as passed in 2017.

For more information on Salary History bans and other laws, and whether they affect your state, visit our resource guide at the Hire Image Resource Library.

U.S. Supreme Court Denies Certiorari in Salary History Case

On July 2, 2020, the U.S. Supreme Court denied certiorari in Yovino v. Rizo. As such, it will not decide the issue of whether employers can use salary history to justify paying men and women differently for similar work under the Equal Pay Act (EPA). In doing so, it left intact a 9th U.S. Circuit Court of Appeals decision that “because prior pay may carry with it the effects of sex-based pay discrimination, and because sex-based pay discrimination was the precise target of the EPA, an employer may not rely on prior pay to meet its burden of showing that sex played no part in its pay decision.”

This case goes back to 2014 when a California teacher filed suit against California’s Fresno County alleging that the country paid male teachers more than female teachers for the same work. The employer filed for summary judgment, which was denied by the federal district court. However, in 2017, a 9th Circuit three-judge panel vacated and remanded that order, ruling that salary history alone could be used to set pay. But about a year later, the same court found that “prior salary alone or in combination with other factors cannot justify a wage differential.” The Supreme Court then vacated that ruling. In February of this year, the 9th Circuit affirmed its earlier ruling, holding that an employee’s prior rate of pay is not a “factor other than sex” that could allow an employer to pay a woman less than a man if they performed the same work. In denying certiorari, the Supreme Court allowed the 9th Circuit’s ruling to stand.

Hire Image understands the intricacies of salary history bans and stays informed on, and compliant with, the ever-increasing changing laws.  For up-to-date information on salary history bans and how they may affect your workplace, please visit our Resource Guides or contact us to find out how we can help.