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Pay transparency issues have been on the radar for some time, with employers navigating the patchwork of jurisdictions across the US demanding the disclosure of salary and wage ranges in job ads. So what’s new? Enforcement of these laws is on the rise, and employers have already been hit with fines and citations.

In this

Special thanks to Celeste Ang and Stephen Ratcliffe.

We launched the seventh annual edition of The Year Ahead: Global Disputes Forecast, a research-based thought leadership surveying 600 senior legal and risk leaders from large organizations around the world and highlights key issues we anticipate to be crucial for disputes for this year.

Earlier this year, many of you tuned into our 2023 – 2024 Employer Update webinars to plant seeds for success for the year ahead.

Now, to ensure your compliance efforts are blooming, we’re sharing detailed checklists to help you ensure you’re ticking all the boxes!

We may be on the verge of pay equity and transparency requirements for federal contractors and subcontractors. On January 30, 2024 the Federal Acquisition Regulatory Council (FAR Council) issued proposed rulemaking that would, if finalized in its current form, require a significant change in recruiting and hiring practices for some contractors.

The FAR Council’s rule would:

  1. Require covered contractors to implement new compensation disclosure requirements in job announcements for certain positions, and
  2. Prohibit covered contractors from requesting or considering applicants’ compensation history when making employment decisions.

The public has until April 1, 2024 to submit comments. We will be tracking this proposed rule as it continues to develop. 

This is just the most recent development in the nationwide wave of state (e.g. California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, New Jersey, New York, Ohio, Rhode Island and Washington) and local (e.g. Cincinnati, Jersey City, New York City and others) pay transparency regulation our team has chronicled on our blog–see our most recent update on the District of Columbia’s new legislation here. Recently, there has also been litigation in various jurisdictions (e.g. Washington and New York City) seeking to enforce pay transparency regulations that are already on the books. 

Potentially broad application

In its current form, the proposed rule would have broad application, covering both prime contractors and subcontractors performing a government contract or subcontract within the United States (including its outlying areas). The FAR Council states that it contemplated limiting application of the requirements to certain contracts but ultimately did not go that way since “[t]he benefits of the pay equity and transparency requirements in this proposed rule are equally impactful in commercial and noncommercial settings as well as to large or small dollar contracts.”

The proposal defines “work on or in connection with the [government] contract” as “work called for by the contract or work activities necessary to the performance of the contract but not specifically called for by the contract.” The Council “encourages” contractors to apply its provisions “to other positions, including to the recruitment and hiring for any position that the Contractor reasonably believes could eventually perform work on or in connection with the contract.”

Both requirements apply only to “applicants,” defined as a “prospective employee or current employee applying for a position to perform work on or in connection with the [government] contract.”Continue Reading Federal Contractors May Soon Be Required To Disclose Salary Ranges in Job Postings, And Prohibited From Seeking Applicant Salary History

The US Supreme Court’s SFFA decision ending affirmative action in higher education continues to have ramifications for corporate America. Attacks to workplace DEI are gaining momentum with targeted challenges from a variety of angles, not the least of which are those coming from conservative advocacy groups filing lawsuits, requesting agency investigations and pursuing other complaints. Just last week, as many prepared to watch Taylor Swift’s boyfriend perform in the Super Bowl, America First Legal (a nonprofit founded by a former adviser to Donald Trump) filed an EEOC complaint against the NFL challenging the Rooney Rule, a widely used hiring practice that emanated in the NFL and is followed across corporate America. For in-house counsel, this just further emphasizes the need to continue to diligently monitor the changing DEI landscape for signals warranting targeted audits or adjustments to workplace DEI programming.

When should in-house counsel take action? Let’s start to answer that question by looking at where we are now and the escalation of events in the past 7 months.

Timeline of Recent Material Attacks on Workplace ID&E

July 2023 | Letter to Employers from 13 State AGs

Thirteen attorneys general used SFFA to support their opposition to corporate DEI programs (see letter to Fortune 100 CEOs here). In response, attorneys general from other states wrote to the same CEOs stating that SFFA “does not prohibit, or even impose new limits on, the ability of private employers to pursue diversity, equity, and inclusion.”Continue Reading Is The Risk Calculus Related To Workplace DEI Shifting For US Employers This Election Year?

Combining the views of 600 senior in-house lawyers at multinational companies across four continents with the insights of Baker McKenzie experts in tax, employment and antitrust, the 7th Edition of our Global Disputes Forecast helps in-house counsel see around corners as they prepare for 2024. The forecast includes detailed predictions for disputes involving ESG, cybersecurity

Tracking and complying with federal, state, and local wage and hour requirements has long been top of mind for employer as wage and hour liability continues to be one of the most expense employment law risks. Indeed, in 2022, the 10 largest reported settlements for wage and hour actions totaled $574 million.

Currently, in

DC is the first jurisdiction in 2024 to join the likes of many states (including California, Colorado, Connecticut, DC, Hawaii, Illinois, Maryland, Nevada, New York, Rhode Island and Washington) in requiring pay transparency in job postings. 

On January 12, 2024, Mayor Muriel Bowser signed the Wage Transparency Omnibus Amendment Act of 2023. If the Act survives the 30-day period of review by Congress (as required under the District of Columbia Home Rule Act), it will go into effect June 30, 2024. 

The Act will apply to employers with at least one employee in DC.

New Requirements

Covered employers must provide the minimum and maximum projected hourly or salary pay in all job listings, as well as a description of the position. Employers will also be required to disclose the existence of healthcare benefits to prospective employees before the first interview. Further, in line with several states that have passed salary history ban laws, employers will be prohibited from screening applicants based on their wage history, or seeking the wage history of a candidate from a former employer.  Finally, employers will also be required to post a notice in their workplaces notifying employees of their rights under the Act. This notice must be posted in a conspicuous place, in at least one location where employees congregate.  Continue Reading New Year, New Rules in DC: This January the District of Columbia Joins the Pay Transparency Club

Join us for our virtual New York 2023-2024 Employment Law Update on Tuesday, February 13, 2024 at 1 pm ET.

In this 60-minute session, our team will highlight what employers in New York and the surrounding areas need to know to effectively navigate 2024, with practical tips to handle the latest developments including:

  • The shifting