2023 Q3 Edition 50 State Equal Pay Reference Guide What Employers Need to Know about US Equal Pay Laws
1 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023 Dear Clients and Friends, For organizations that operate in multiple states, tracking the ever-changing requirements related to equal pay issues can pose daunting challenges and the growing “ripple effect” of such requirements is being felt across industries and sectors. To simplify the process, we are pleased to provide you with our Seventh Annual 50 State Equal Pay Reference Guide: What Employers Need to Know about US Equal Pay Laws, including a new Pay Transparency Wage Range Disclosure Compendium. This one-stop resource provides answers to the following common questions: • Which protected classes are protected by the Equal Pay laws? • What type of work must be compared? • May employers ask about salary history? • What are the permissible factors that explain pay differences? • What are the compensation disclosure requirements (including pay reporting)? This guide addresses laws that impact private employers and is based on a review of state laws. This guide also provides information about the life cycle of a pay equity analysis. The information contained in this booklet is purposely condensed and simplified; while it provides a convenient point of reference, always consult with your attorney before making any decisions. For additional information, please email payequity@seyfarth.com. All of the members of Seyfarth’s Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2023 both in the United States and around the globe. We stand with you to support these efforts and look forward to continuing to provide you with the up-to-date resources you need. We hope this booklet proves a useful and informative tool. It does not constitute legal advice or create an attorney-client relationship. Please do not hesitate to contact payequity@seyfarth.com if you have any questions.
WWW.SEYFARTH.COM | 2 Expanding Influence of Equal Pay Requirements Since 1963, the Equal Pay Act has prohibited pay discrimination on the basis of sex. Since that time, there has been a wave of shareholder initiatives and modifications to state equal pay laws. The ripple effect has been far reaching. In 2023 and beyond, we see more litigation and enhanced pay reporting laws. FEDERAL LAW 1963 The Equal Pay Act of 1963 was signed into law, followed by Title VII in 1964. The EPA prohibits pay discrimination on the basis of sex. SHAREHOLDER INITIATIVES 2015 Amidst a wave of activism, including from high profile figures and celebrities, 2015 saw the emergence of shareholder initiatives asking companies to disclose pay differences between men and women. STATE LAWS 2016 Laws at the state level boomed in 2016. California, New York, and Massachusetts led the charge, and became the first states to adopt more onerous laws. Other states followed suit and many also enacted salary history bans and pay scale disclosure laws. LITIGATION 20182022 In the last few years hundreds of pay discrimination cases were filed. This number is projected to go up. FOCUS ON PAY TRANSPARENCY 2023 and Beyond The legal landscape continues to rapidly change, as more countries around the globe enact equal pay reporting laws.
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? AL Alabama Sex, race Equal work within the same establishment on jobs the performance of which requires equal skill, effort, education, experience, and responsibility, and which are performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex or race. While there is no outright ban, employers may not refuse to interview, hire, promote, or employ an applicant for employment, or retaliate against an applicant for employment because the applicant does not provide wage history. Wage history means the wages paid to an applicant for employment by the applicant’s current or former employer. AK Alaska Gender Work of comparable character or work in the same operation, business, or type of work in the same locality. Not addressed in statute, but addressed in regulations. It is a defense to a complaint of unlawful discrimination to establish by clear and convincing evidence that a distinction in employment prohibited by AS 18.80.220(a) (1) is required by business necessity or the reasonable demands of the position. “Business necessity” or “reasonable demands of the position” means that the distinction is necessary to the safe and efficient operation of the business; the business purpose is sufficiently compelling to override any disproportionate impact on an individual protected by AS 18.80.220(a), and the challenged business practice efficiently carries out the business purpose it is alleged to serve, and there is no available or acceptable policy or practice which would better accomplish the business purpose advanced or accomplish it equally well with less discriminatory impact on the complainant. No state law AZ Arizona Gender Same quantity and quality of the same classification of work in the same establishment. Difference in seniority, length of service, ability, skill, difference in duties or services performed; difference in the shift or time of day worked, hours of work; or restrictions or prohibitions on lifting or moving objects in excess of specified weight, or other reasonable differentiation other than sex, when exercised in good faith. No state law 3 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting AL Alabama No state law No local provisions located No pay reporting AK Alaska No state law No local provisions located No pay reporting AZ Arizona No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 4
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? AR Arkansas Sex Comparable work If pursuant to seniority, experience, training, skill, ability, differences in duties and services performed, differences in the shift or time of the day worked, or any other reasonable differentiation except difference in sex. No state law CA California Gender, race, ethnicity Substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. If based on seniority system, merit system, system that measures earnings by quantity or quality of production, or bona fide factor other than protected category, such as education, training, or experience. Must be applied reasonably and other factors must account for the entire wage differential. Defense does not apply if alternative business practice exists that would serve the same business purpose without producing the wage differential. An applicant or employee’s prior salary will not justify disparities in compensation; however, this provision cannot be interpreted to mean that an employer may not make a compensation decision based on a current employee’s existing salary, so long as wage differential otherwise permissibly justifiable. No, unless offered voluntarily and without prompting, employers may not seek an applicant’s salary history or rely on it to determine whether to offer employment or what salary to offer. CO Colorado Sex or sex in combination with disability, race, creed, color, sexual orientation, gender identity, gender expression, religion, age, national origin, or ancestry Substantially similar work, regardless of job title, based on a composite of skill, effort, and responsibility. If based on a seniority system; a merit system; a system that measures earnings by quantity or quality of production; the geographic location where the work is performed; education, training or experience reasonably related to the work in question; and travel, if the travel is a regular and necessary condition of the work performed. Employers relying on these factors must also demonstrate they are applied reasonably, account for the entire wage rate differential, and that prior wage history was not relied on to justify a disparity in current wage rates. No. Employers may not inquire about a prospective employee’s wage history or rely on a prospective employee’s wage history to determine a wage rate. Employers are also prohibited from discriminating or retaliating against a prospective employee for failing to disclose such wage history. 5 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting AR Arkansas No state law No local provisions located No pay reporting CA California Employers must include pay scale on job postings and upon applicant and/ or employee’s request. “Pay scale” is defined as the salary or hourly wage range that the employer reasonably expects to pay for the position. No local provisions located Employers with 100 or more US employees and at least 1 employee in California are required to submit an annual pay report to California Civil Rights Department including W-2 wages and hours worked. Employers must also report the mean and median hourly rate by each combination of race, ethnicity, and sex. In addition to the above, employers that have 100 or more US workers hired through labor contractors and at least 1 labor contractor worker in California must produce data on W-2, hours worked, mean and median hourly rate, and race/ethnicity and gender information in a separate Labor Contractor Employee report. CO Colorado (1) Promotional Opportunity Disclosure: Employers must make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current Colorado employees on the same calendar day and prior to making a promotion decision. (2) Compensation Information Disclosure: For roles that could be performed in Colorado, employers must disclose in each job posting: (a) the hourly rate or salary compensation; and (b) a general description of any other forms of compensation and benefits. Effective 1/1/24 amendments to the law will: (a) redefine what constitutes a “job opportunity;” (b) add a requirement to include the date the application window is anticipated to close; (c) require a notice to current employees regarding the candidate selected for a job opportunity; and (d) require disclosure of information related to “career progressions” to current employees. No local provisions located No pay reporting WWW.SEYFARTH.COM | 6
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? CT Connecticut Sex Comparable work when viewed as a composite of skill, effort, and responsibility performed under similar working conditions. Pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential system based upon a bona fide factor other than sex, including, but not limited to, education, training, experience, credential, skill, or geographic location. Employers must show that such factors are not based on or derived from a sex-based differential in compensation and are job-related and consistent with a business necessity. Employers may not use this defense if employees demonstrate that an alternative employment practice exists that would serve the same business purpose without producing the pay differential and the employer refused to adopt the practice. No, unless a prospective employee has volunteered such information or unless the request is pursuant to any federal or state law that specifically authorizes the disclosure or verification. The law does not prohibit an employer from inquiring about components of a prospective employee’s compensation structure, so long as the employer does not inquire about the value of the elements of such compensation structure. DE Delaware Sex Equal work that requires equal skill, effort, and responsibility under similar working conditions in the same workplace. If based on a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or any other factor other than sex; provided, that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with this subsection, reduce the wage rate of any employee. No, employers cannot seek the compensation history of an applicant or seek the same from the applicant’s current or prior employer prior to offer acceptance (after offer acceptance an employer may request only for purposes of confirming compensation history). Employers cannot screen applicants based on their compensation history, including that compensation history meets minimum or maximum criteria. DC District of Columbia No state Equal Pay law; pay discrimination prohibited under nondiscrimination statute N/A N/A No state law FL Florida Sex Equal work on jobs the performance of which require equal skill, effort and responsibility, performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any reasonable factor other than sex when exercised in good faith. No state law GA Georgia Sex Equal work requiring equal skill, effort and responsibility, performed under similar working conditions within the same establishment. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex. No state law 7 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting CT Connecticut Employers must provide an applicant for employment the wage range for a position for which the applicant is applying, upon the earliest of (a) the applicant’s request, or (b) prior to or at the time the applicant is made an offer of compensation. Employers must provide a current employee the wage range for the employee’s position upon (a) the hiring of the employee, (b) a change in the employee’s position with the employer, or (c) the employee’s first request for a wage range. “Wage range” means the range of wages an employer anticipates relying on when setting wages for a position, and may include reference to any applicable pay scale, previously determined range of wages for the position, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position. No local provisions located No pay reporting DE Delaware No state law No local provisions located No pay reporting DC District of Columbia No state law No local provisions located No pay reporting FL Florida No state law No local provisions located No pay reporting GA Georgia No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 8
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? HI Hawaii Sex (Fair Employment Practices Law) Effective 1/1/24: Sex, Race, Gender Identity or Expression, Sexual Orientation, Age, Religion, Color, Ancestry, Disability, Marital Status, Arrest and Court Record, Reproductive Health Decision, or Domestic or Sexual Violence Victim Status Substantially similar work on jobs the performance of which require equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. (Fair Employment Practices Law). If resulting from a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide occupational qualification; or any permissible factor other than any of the protected categories (Fair Employment Practices Law). No, unless offered voluntarily and without prompting, employers may not inquire about, search public records for, or rely on salary history of applicants in the hiring process. Employer may engage in discussions (without inquiry about salary history) about salary or benefit expectations. If applicant voluntarily and without prompting discloses salary history, employer may consider the salary history and may verify such history. ID Idaho Sex Comparable work on jobs that have comparable requirements relating to skill, effort, and responsibility at the same establishment. If differential based on established seniority systems or merit increase systems that do not discriminate based on sex. No state law IL Illinois Sex, African-American Same or substantially similar work on jobs the performance of which require substantially similar skill, effort, and responsibility, and which are performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex or a factor that would constitute unlawful discrimination under the Illinois Human Rights Act, as long as that factor is: (1) not based on or derived from a differential in compensation based on sex, race, or another protected characteristic; (2) is job related and consistent with business necessity; and (3) accounts for the differential in pay. No, Illinois employers are prohibited from (1) screening job applicants based on their wage or salary history; (2) requiring that an applicant’s prior wages satisfy minimum or maximum criteria; and (3) requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant disclose prior wages or salary. Unless a matter of public record or if the job applicant is a current employee, employers are also prohibited from seeking the salary, including benefits or other compensation or salary history, of a job applicant from any current or former employer. However, an employer will not violate the statute when a job applicant voluntarily and without prompting discloses such information, provided the employer does not consider or rely on the voluntary disclosures as a factor in potential employment, compensation, or other benefits. Employers are not barred from engaging in discussions with an applicant about his/her expectations with respect to wage or salary, benefits, and other compensation. 9 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting HI Hawaii Effective 1/1/24: Employers must include hourly rate or salary range reasonably reflecting the actual expected compensation on job listings, except job listings for: (1) positions that are internal transfers or promotions with a current employer; (2) public employee positions for which salary, benefits, or other compensation are determined pursuant to collective bargaining; or (3) positions with employers having fewer than fifty employees. No local provisions located No pay reporting ID Idaho No state law No local provisions located No pay reporting IL Illinois No state law No local provisions located Employers with more than 100 employees in Illinois, who are also required to file a federal EEO-1 Report, must apply to the Illinois Department of Labor for an Equal Pay Registration Certificate. The application includes the submission of employee-level compensation data, and a signed verification of compliance with certain state and federal anti-discrimination laws. WWW.SEYFARTH.COM | 10
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? IN Indiana Sex Equal work on jobs the performance of which require equal skill, effort and responsibility, and which are performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex. No state law IA Iowa Age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on a factor other than sex. No state law KS Kansas Sex Work on jobs requiring equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on a factor other than sex. No state law KY Kentucky Sex Comparable work on jobs within the same establishment that have comparable requirements relating to skill, effort, and responsibility. If pursuant to established seniority systems or merit increase systems, which do not discriminate on the basis of sex. No state law LA Louisiana No state Equal Pay law that applies to private employers; pay discrimination prohibited under nondiscrimination statute N/A N/A No state law ME Maine Effective 90 days after adjournment of current session: Sex, Race Comparable work on jobs that have comparable requirements relating to skill, effort, and responsibility in the same establishment. If pursuant to established seniority systems or merit increase systems or difference in the shift or time of the day worked that do not discriminate on the basis of sex (or race, effective 90 days after adjournment of current session). No, employers are prohibited from asking about a job candidate’s compensation history until after a job offer including compensation terms has been presented. In addition, employers may not directly ask a candidate’s current or former employer for salary information or stop current employees from discussing their own or another employee’s wages. Employers can confirm a candidate’s past pay if the candidate voluntarily discloses it, and the law does not apply if an employer “inquires about compensation history pursuant to any federal or state law that specifically requires the disclosure or verification of compensation history for employment purposes.” 11 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting IN Indiana No state law No local provisions located No pay reporting IA Iowa No state law No local provisions located No pay reporting KS Kansas No state law No local provisions located No pay reporting KY Kentucky No state law No local provisions located No pay reporting LA Louisiana No state law No local provisions located No pay reporting ME Maine No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 12
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? MD Maryland Sex and gender identity For employees in the same establishment, work of comparable character or work in the same operation, in the same business, or of the same type. If based on a seniority system that does not discriminate on the basis of sex or gender identity; a merit increase system that does not discriminate on the basis of sex or gender identity; jobs that require different abilities or skills; jobs that require the regular performance of different duties or services; work that is performed on different shifts or at different times of day; a system that measures performance based on a quality or quantity of production; or a bona fide factor other than sex or gender identity, including education, training, or experience, in which the factor is not based on or derived from a gender–based differential in compensation, is job related with respect to the position and consistent with a business necessity, and accounts for the entire differential. No, employers are prohibited from retaliating against or refusing to interview, hire, or employ any job applicant who either (a) did not provide wage history on a job application, or (b) who requested information about the wage range for the job to which the applicant applied. Employers are also prohibited from relying on the applicant’s wage history as a way to screen job applicants for the position, or when determining the wages for the applicant if that person is hired. Employers are further prohibited from seeking the wage history of an applicant either orally, in writing, or through another employee, an agent, or from the applicant’s current or former employer. However, after an applicant has received an initial offer of employment that includes a specific compensation figure, an employer may rely on any wage history voluntarily provided by the applicant to support a wage offer higher than the initial wage offer or seek to confirm the wage history voluntarily provided by the applicant to support the higher wage offer. These additional exceptions, however, are subject to the additional restriction that the higher wage may not create a pay differential based on sex and/or gender identity. 13 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting MD Maryland Upon request, the employer must provide to a job applicant the wage range for the position to which the applicant applied. No local provisions located No pay reporting WWW.SEYFARTH.COM | 14
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? MA Massachusetts Gender Comparable work, defined as work that is substantially similar in that it requires substantially similar skill, effort, and responsibility and is performed under similar working conditions; provided however, that a job title or job description alone shall not determine comparability. If based upon the following: a system that rewards seniority with the employer (provided, however, that time spent on leave due to a pregnancyrelated condition and protected parental, family and medical leave, shall not reduce seniority); a merit system; a system which measures earnings by quantity or quality of production, sales, or revenue; the geographic location in which a job is performed; education, training or experience to the extent such factors are reasonably related to the particular job in question; or travel, if the travel is a regular and necessary condition of the particular job. A pay difference will be permissible under MEPA if the entire difference is justified by one of these factors, or by a combination of these factors. MEPA does not recognize any other valid reasons for variations in pay between men and women performing comparable work. Note: Noticeably absent from AG guidance regarding defenses to pay differentials is the catch-all “any reason other than gender” defense that exists under the federal EPA and many other state equal pay laws. No. Generally, employers cannot seek salary history from a prospective employee or the prospective employee’s current or former employer. Under two limited exceptions, an employer may request salary history. The first exception is if a prospective employee has voluntarily disclosed salary history information, then an employer can confirm prior wages or salary or permit a prospective employee to confirm prior wages or salary. The second exception is if an offer of employment with compensation has been made, then an employer may seek or confirm a prospective employee’s wage or salary history. Additionally, employers cannot require that prior wage or salary history meet certain criteria, and prior wages are not a defense to an equal pay complaint. MI Michigan Sex Equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. If payment is based on one or more of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; or a differential based on a factor other than sex. Yes. State law prohibits local jurisdictions from enacting salary history ban laws. MN Minnesota Sex Jobs that require equal skill, effort and responsibility, and which are performed under similar working conditions. If payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex. No state law 15 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting MA Massachusetts No state law No local provisions located No pay reporting MI Michigan No state law No local provisions located No pay reporting MN Minnesota No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 16
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? MS Mississippi Sex Equal work on a job, the performance of which requires equal skill, education, effort and responsibility, and which is performed under similar working conditions in the same establishment. If payment is made pursuant to differential based on a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or any other factor other than sex, including, but not limited to, the salary history or continuity of employment history demonstrated by the employee as compared to employees of the opposite sex in the same establishment, the extent to which there was competition with other employers for the employee’s services as compared to employees of the opposite sex in the same establishment, and the extent to which the employee attempted to negotiate for higher wages as compared to employees of the opposite sex in the same establishment. No state law MO Missouri Women Same quantity and quality of the same classification of work in the same establishment. Based upon a difference in seniority, length of service, ability, skill, difference in duties or services performed, difference in the shift or time of day worked, hours of work, or restrictions or prohibitions on lifting or moving objects in excess of specified weight, or other reasonable differentiation, or factors other than sex, when exercised in good faith. No state law MT Montana Women Equivalent service or form the same amount or class of work or labor in the same industry, school, establishment, office, or place of employment. Not addressed No state law NE Nebraska Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to: an established seniority system; a merit increase system; or a system which measures earning by quantity or quality of production; or any factor other than sex. No state law 17 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting MS Mississippi No state law No local provisions located No pay reporting MO Missouri No state law No local provisions located No pay reporting MT Montana No state law No local provisions located No pay reporting NE Nebraska No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 18
Life Cycle of an Equal Pay Analysis Is your organization considering undertaking a proactive pay analysis? Changes to state and federal laws in the US and globally make undertaking such an analysis a wise decision and a key risk mitigation priority for your organization. Initial Contact: Identify Goals and Protect the Privilege We will kick off the analysis by first identifying your organization’s key goals and objectives, including whether to coordinate the timing of the analysis with any typical annual review process. We will also identify the appropriate and right-sized internal and external resources necessary to conduct the analysis. Before the substantive components of the project begins, our Pay Equity attorneys will work with you to implement attorney-client privilege protocols to safeguard the analysis to the maximum extent possible. Team Kick-Off Call: Identify Scope and Resources During our first discussion with the audit, we will define the scope of the analysis, including identifying the workforce and the components of pay under review. In order to better understand your organization, we will ask for information about compensation structure and pay philosophy and discuss the drivers of employee compensation. Together, we will determine the most appropriate way to group employees for the statistical analysis and identify the job-related factors that are relevant to employee pay. Seyfarth’s Pay Equity team can guide you through this process by developing an analysis that evaluates the key components of pay relevant to your organization. We will partner with you to model the compensation practices for your workforce, or you may choose to target a subset of those employees. The analysis will be designed to align with your organization’s objectives, identify and address unexplained differences in pay and ensure that your organization’s practices align with stated business policies and priorities. Together, we will guide you through the life cycle of a pay analysis: 1 2 Identify Litigation Risks and Possible Mitigation Strategies By comparing the organization’s compensation structure with industry-specific litigation trends, we can often identify potential drivers of litigation risk and mitigation strategies. Even small changes to policies or systems can significantly impact the defense of an equal pay lawsuit. 3 19 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Gather the Data Our next step will be to partner with the key stakeholders responsible for data collection and maintenance (e.g., HRIS team) to gather relevant data regarding employee pay from the organization’s electronic and physical data systems. Because the key data to be analyzed (such as time with the organization, time in role, job, grade/level, date of hire, performance metrics, and, of course, pay information) may be stored in a variety of systems, we will suggest efficient ways to gather the data. Initial Statistical Analysis Once we have gathered the data, we will partner with statistical experts to conduct the statistical analysis. We will interpret the results and identify any groups identified for further review. 5 4 Deeper Dive and Further Analysis Often the initial analysis brings to light errors in the data, individual employees who were slotted in the wrong job or level, or additional factors that drive employee compensation that were not identified initially. We will help your organization identify these issues by leveraging the full force of the statistical tools to identify potential employees or groups of employees that are driving any apparent disparities. We can then work with you to explore additional factors that we may wish to include in the statistical model and data errors that need to be addressed in the further analysis. 6 Potential Pay Adjustments and Reclassifications After the full investigation of pay differences is complete, we will provide advice related to mitigation strategies if needed. We will present our assessments and preliminary recommendations, and will work with you to develop solutions that stand the greatest chance of success in light of applicable legal, operational, and corporate-culture considerations and constraints. These recommendations may include pay adjustments or reclassification of employee levels or job titles. 7 Potential Changes to Policies and Practices After reflection on the results of the assessment, we may provide additional recommendations with respect to modifications to policies or practices regarding hiring and starting pay, performance reviews, promotions and bonuses in order to best position the organization for future compliance. 8 Follow-Up After the analysis is complete, we will work with your organization to identify desirability and frequency of routine follow-up analysis, including real-time analysis of pay and promotion decisions. There is no one-size fits all with respect to the analysis or follow-up—we have seen nearly every possible pay issue and are able to provide real-time recommendations on how to ensure that your pay practices are in line with your corporate culture and business objectives under the relevant legal framework. 9 WWW.SEYFARTH.COM | 20
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? NV Nevada Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; a merit system; a compensation system under which wages are determined by the quality or quantity of production; or a wage differential based on factors other than sex. No. An employer or an employment agency shall not, orally or in writing, personally or through an agent: (a) seek the wage or salary history of an applicant for employment; (b) rely on the wage or salary history of an applicant to determine: (1) whether to offer employment to an applicant; or (2) the rate of pay for the applicant; or (c) refuse to interview, hire, promote or employ an applicant, or discriminate or retaliate against an applicant if the applicant does not provide wage or salary history. NH New Hampshire Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions. If made pursuant to: a seniority system; a merit or performance-based system; a system which measures earnings by quantity or quality of production; expertise; shift differentials; or a demonstrable factor other than sex, such as education, training, or experience. No state law NJ New Jersey Race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability, atypical hereditary cellular or blood trait of any individual, and liability for service in the U.S. armed forces Substantially similar work, when viewed as a composite of skill, effort, and responsibility. A seniority system, a merit system, or a bona fide factor other than a protected characteristic, such as education, experience, training, or the quantity or quality of production so long as it is job-related, and based on a legitimate business necessity, and if the employer demonstrates the factor is not based on, and does not perpetuate, a differential in compensation based on sex or any other characteristic of members of a protected class. The bona fide factor must be applied reasonably, and explain the entire pay differential. The factor will not apply if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential. No, employers may not ask job applicants about their salary history, including prior wages, salary, commission, benefits or any other current or previous compensation. Employers may verify and consider salary history if an applicant voluntarily, without prompting or coercion, provides the information. An employer may not use an applicant’s refusal to volunteer salary history information as a consideration in hiring decisions. The law does not apply to internal transfers or promotions, when a federal law or regulation requires that salary history be disclosed, or when an employer is considering an incentive or commission component as part of the total compensation package. NM New Mexico Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; merit system; or system that measures earnings by quantity or quality of production. No state law 21 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting NV Nevada An employer or an employment agency, must provide an applicant for employment, who has completed an interview for a position, the wage or salary range or rate for the position. An employer or an employment agency, must provide the wage or salary range or rate for a promotion or transfer to a new position if an employee has: (1) applied for the promotion or transfer; (2) completed an interview for the promotion or transfer or been offered the promotion or transfer; and (3) requested the wage or salary range or rate for the promotion or transfer. No local provisions located No pay reporting NH New Hampshire No state law No local provisions located No pay reporting NJ New Jersey No state law Jersey City: Employer must post a minimum and maximum salary or hourly wage on any posting or advertisement that provides notice of employment opportunities, transfers, or promotions. In stating the minimum and maximum salary or hourly wage for a position, the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity. No pay reporting NM New Mexico No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 22
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? NY New York Age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status (a) Equal work on a job, the performance of which requires equal skill, effort, and responsibility under similar working conditions in the same establishment, or (b) substantially similar work, when viewed as a composite of skill, effort, and responsibility, that is performed under similar working conditions in the same establishment. Employees are considered to work at the “same establishment” if they work for the same employer at workplaces located in the same geographical region, no larger than a county, taking into account population distribution, economic activity, and the presence of municipalities. If pursuant to a differential based on: a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a bona fide factor other than status within one or more protected class or classes, such as education, training, or experience. Such factor: (i) shall not be based upon or derived from a differential in compensation based on status within one or more protected class or classes; and (ii) shall be job-related with respect to the position in question and shall be consistent with business necessity. Such exception shall not apply when the employee demonstrates: (1) that an employer uses a particular employment practice that causes a disparate impact on the basis of status within one or more protected class or classes; (2) that an alternative employment practice exists that would serve the same business purpose and not produce such differential; and (3) that the employer has refused to adopt such alternative practice. The law prohibits employers from: (1) seeking, requesting, or requiring the wage or salary history from an applicant or current employee as a condition to be interviewed, or as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion (also prohibits seeking an applicant or current employee’s wage or salary history from other sources); (2) relying on an applicant’s wage or salary history in determining whether to offer employment to, or in determining the wages or salary for, such individual; and (3) refusing to interview, hire, promote, otherwise employ, or otherwise retaliate against an applicant or current employee based upon prior wage or salary history, the refusal to provide the same, or because the individual filed a complaint with the department alleging a violation of the law. The law does not prevent an applicant or current employee from voluntarily, and without prompting, disclosing or verifying wage or salary history, including but not limited to for the purposes of negotiating wages or salary. NC North Carolina No state Equal Pay law; there is a general nondiscrimination statute, but the statute does not specify prohibited practices. N/A N/A No state law 23 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting NY New York Effective 9/17/23: In an advertisement for a job, promotion, or transfer opportunity that will physically be performed, at least in part, in the state of New York, or performed outside of New York but that reports to a New York supervisor or location, employers must disclose: (1) the compensation or a range of compensation; and (2) the job description if such description exists. For jobs, promotions, or transfer opportunities paid solely on commission, employer must disclose in writing in a general statement that compensation shall be based on commission. NYC: Employer must include minimum and maximum annual salary or hourly wage on advertisements for a job, promotion or transfer opportunity. In stating the minimum and maximum annual salary or hourly wage for a position, the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity. Ithaca: Employer must include minimum and maximum hourly or salary compensation on advertisements for a job, promotion or transfer opportunity. In stating the minimum and maximum hourly or salary compensation for a position, the range may extend from the lowest to the highest hourly or salary compensation the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity. Westchester County: Employer must include minimum and maximum salary on a posting for a job, promotion, or transfer opportunity. In stating the minimum and maximum salary for a position, the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity. Albany County: (Effective 3/9/23) Employer must include minimum and maximum salary or hourly wage on an advertisement for a job, promotion, or transfer opportunity. In stating the minimum and maximum salary or hourly wage for a position, the range may extend from the lowest to highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity. No pay reporting NC North Carolina No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 24
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? ND North Dakota Gender Comparable work on jobs in the same establishment that have comparable requirements relating to skill, effort, and responsibility. Differentials that are paid pursuant to established seniority systems, systems that measure earnings by quantity or quality of production, merit systems, or a bona fide factor other than gender, such as education, training, or experience, and which do not discriminate on the basis of gender, are not within this prohibition. No state law OH Ohio Race, color, religion, sex, age, national origin, or ancestry Work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar conditions. If pursuant to any of the following: a seniority system; a merit system; a system which measures earnings by the quantity or quality of production; a wage rate differential determined by any factor other than protected class. No state law OK Oklahoma Sex Comparable work on jobs that have comparable requirements relating to skill, effort, and responsibility. Differential must be willful. Where such payment is made pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any factor other than sex. No state law 25 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting ND North Dakota No state law No local provisions located No pay reporting OH Ohio No state law Cincinnati: Employers in Cincinnati with 15 or more employees must, upon reasonable request, provide external applicants with the pay scale for a position for which the applicant has been provided a conditional offer of employment by the employer. Toledo: Employers in Toledo with 15 or more employees must, upon reasonable request, provide external applicants with the pay scale for a position for which the applicant has been provided a conditional offer of employment by the employer. No pay reporting OK Oklahoma No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 26
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? OR Oregon Race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, veteran status, disability or age Work of comparable character, which means work that requires substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or job title. Employer decisions must be based on an enumerated set of bona fide factors other than protected class; namely, a seniority system, a merit system, a system that measures earnings by quantity or quality of production, workplace location, travel, education, training, or past experience or any combination of the factors listed, if the combination of factors accounts for the entire compensation differential. Exceptions exist for collective bargaining agreements and “system” is defined as a “consistent and verifiable method in use at the time” of the alleged violation. Also, it will not be a violation of the law for an employer to pay a different level of compensation to an employee who receives wages for modified work as a result of a medical condition, provided such was requested by the employee, authorized by the employer in a nondiscriminatory manner, and authorized by a medical professional. No. An employer cannot seek salary history from an applicant or prior employer before an offer. An employer can confirm prior compensation after an offer that includes compensation, and with the written authorization of the prospective employee. An employer cannot screen job applicants based on current or past compensation or determine compensation based on current or past compensation. PA Pennsylvania Sex Equal work on jobs, the performance of which require equal skill, effort, and responsibility, under similar working conditions in the same establishment. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex. No state law PR Puerto Rico Sex Comparable job functions or duties that require equal skill, effort, and responsibility, and are performed under similar working conditions. If the result of: (1) a bona fide merit or seniority system, (2) a system which measures profits in terms of quantity or quality of the production, sales, or profits, (3) education, training, or experience if these factors are reasonably related to the specific job, or (4) any reasonable factor other than sex. No. Employer cannot seek salary history from a prospective employee before an offer. If a prospective employee has voluntarily disclosed salary history information, the employer can confirm prior wages or salary or permit a prospective employee to confirm prior wages or salary. 27 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2023
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