4 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP but they often require employers to provide salary range information to applicants or employees. The assumption underlying such laws appears to be that employees will be able to use this information to advocate for higher pay, which over time could help to narrow the pay gap. Colorado was one of the first states to pass such a law; it requires employers to notify employees of “promotional opportunities.” Promotional opportunities are job vacancies that are superior to the job held by at least one employee at the same company. The law mandates that such postings must include a list of information about the position, including detailed compensation and benefits information.18 In particular, the law requires employers to “make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision.”19 The law also requires employers to “disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant.”20 The Colorado law also requires employers to “keep records of job descriptions and wage rate history for each employee for the duration of the employment plus two years after the end of employment in order to determine if there is a pattern of wage discrepancy.”21 Violations of the job posting requirements are subject to state agency enforcement or a private right of action.22 In the latter case, the law provides courts the option to provide private litigants with a rebuttable presumption that missing records would have contained information favorable to the employee's claim and an instruction to the jury that failure to keep records can be considered evidence that the violation was not made in good faith.23 This approach to pay transparency has proven quite popular. Many other states are experimenting with similar types of laws. For example, in California, employers must now provide a position's pay scale—a salary or hourly wage range that the employer reasonably expects to pay for a position—in job postings and to third parties that it uses to announce, publish, or otherwise publicize job postings.24 New York’s new law is similar: effective September 17, 2023, employers will have to disclose the compensation or compensation range—i.e., the minimum and maximum annual salary or hourly compensation range that the employer believes is accurate—and job description (if it exists) in advertisements for job, promotion, or transfer opportunities that can or will be performed at least partly in the state.25 Some states have gone even further, enacting laws that require employers to submit periodic reports of various pay and demographic data about their workforce in a manner very similar to what the EEOC briefly required as Component 2 of the federal EEO-1 pay report. The EEO-1 Report is a survey document that has been mandated for more than 50 years. Employers with more than 100 employees, and federal contractors or subcontractors with more than 50 employees, are required to collect and provide to the EEOC certain demographic information (gender, race, and ethnicity) in each of ten job categories.26 On February 1, 2016, the EEOC proposed changes to the EEO-1 report, which would have required more detailed reporting obligations of “Component 2 data,” specifically, data on employees’ W-2 earnings and hours worked.27 On August 29, 2017, the EEOC announced that the OMB, per its authority under the Paperwork Reduction Act, had stayed the collection of Component 2 data. The OMB’s decision was immediately challenged in court. 18 C.R.S.A. § 8-5-201. 19 Id. § 8-5-201(1). 20 Id. § 8-5-201(2). 21 Id., § 8-5-202. 22 Id., § 8-5-203. 23 Id., § 8-5-203(5). The law states that “the court may order appropriate relief, including a rebuttable presumption that records not kept by the employer in violation of section 8-5-202 contained information favorable to the employee’s claim and an instruction to the jury that failure to keep records can be considered evidence that the violation was not made in good faith.” Id. 24 See Cal. Lab. Code § 432.3(c). 25 N.Y. Lab. Law § 194-b. 26 For more information, see the EEOC’s dedicated website for data collections: https://eeocdata.org/. 27 See U.S. Equal Employment Opportunity Commission, Agency Information Collection Activities: Revision of the Employer Information Report (EEO-1) and Comment Request, available at https://www.gpo.gov/fdsys/pkg/FR-2016-02-01/pdf/2016-01544.pdf.
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