Impact of Equal Pay Transparency Laws on the PERM Labor Certification Process

The PERM labor certification is the first in a three-step process in the majority of employment-based green card cases. A key component of the PERM process is the labor market test, where an employer runs a series of advertisements to recruit for the sponsored position to demonstrate to the U.S. Department of Labor (DOL) that a qualified and willing U.S. worker could not be found to fill the position. While the DOL strictly regulates the advertisement content to be used by an employer, recent equal pay transparency laws have raised questions about how and when wage data must be included in an employer’s PERM advertisements.

PERM Advertisement Requirements

The DOL has exacting regulations as to the content of the advertisements an employer must run as part of the PERM recruitment efforts. Advertisements must generally include the name of the employer, the worksite location, instructions for how applicants can apply, and a job description that sufficiently apprises U.S. workers of the nature of the position. Notably, however, the PERM regulations do not require the offered wage to be included in the advertisements.

Recent Pay Transparency Laws

A growing number of states have enacted equal pay transparency laws that require an employer to include information regarding the offered wage and, in some states, offered benefits or other forms of compensation, in a job posting for an open position. These state laws may differ as to how a wage must be disclosed, such as whether it must be listed as a wage range and which types of employers are subject to the disclosure requirements. Additionally, some states include a long-arm provision that could subject an ad for a remote position with an out-of-state employer to the wage disclosure laws if all or some of the work can be performed in that state.

Impact of Pay Transparency Laws on PERM Recruitment

As stated above, the PERM regulations do not specifically require the offered wage to be included in the advertisements. However, the PERM regulations do require that the terms of the employment must not be contrary to applicable state laws and that the advertisements do not contain terms and conditions that are less favorable to U.S. workers than to the sponsored foreign national. In a state with pay transparency laws, failure to include this information could be in violation of state law and could be viewed as disadvantaging U.S. workers by not sufficiently apprising potential U.S. applicants of the position. Therefore, if an employer must disclose the wage or benefit information under applicable state law, such disclosures would be advisable for the benefit of the PERM process as well.

Potential Conflicts Between State Pay Transparency Laws and PERM Regulations

In certain cases, a state’s equal pay transparency laws may conflict with an employer’s wage obligations under the PERM process. For example, under the PERM regulations, an advertisement cannot contain an offered wage that is lower than the prevailing wage determination amount for the sponsored position. Some state laws require an employer to list an offered wage range in a job posting. In such a case, an employer will need to determine how to ensure that the wage range listed in an advertisement does not indicate that the employer is offering a lower wage than the prevailing wage amount.

Disclosing Benefit Information on the Physical Notice of Filing

Although it is technically not a form of recruitment, an employer typically is required to post a physical notice informing current employees of the job opening and that the PERM process is underway. The notice must always include the same content as the other advertisements with some additions, including the offered wage. At a recent American Immigration Lawyers Association (AILA) conference, a DOL representative indicated that benefits or other forms of compensation also must be listed on the physical notice in a state that requires the disclosure of such information in regular job postings.

Conclusion

The PERM labor certification preparation process is complicated, labor-intensive, and time-consuming. The attorneys at the Murthy Law Firm have extensive experience navigating this complex area of immigration law and are available to assist employers and their employees to help them achieve their American dreams.

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