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IMMIGRATION FEBRUARY 03, 2023 | The Indian Eye 34

The Tension Between State Wage

Transparency Laws and Labor

Certification Recruitment

CYRUS D. MEHTA AND disclose wage information in applicants, and engage in other the relevant wage transparency to $57,402 and higher than the
KAITLYN BOX* job advertisements. Washing- forms of affirmative relief”, al- law, but it could create issues wage indicated in in the NOF.
ton State and California have though the city will not assess a in the PERM context. As yet, BALCA reasoned that because
n the past year, several states enacted wage transparency laws penalty on first time offenders the DOL has not issued any the NOF stated a wage lower
and jurisdictions across the effective January 1, 2023, with who correct the violation within guidance on the interaction be- than the highest wage in the
IU.S. have begun enacting both applying only to employ- 30 days of receiving notice. Civil tween wage transparency laws wage range, the “NOF did not
wage transparency laws, and ers with 15 or more employees. penalties of $250,000 per viola- and PERM regulations, and the disclose that opportunity to the
others are poised to go into ef- Other jurisdictions are consid- tion can be assessed on repeat Board of Alien Labor Certifi- Employer’s other workers or
fect in the new future. Aimed ering implementing similar leg- offenders. Although Colorado cation Appeals (BALCA) has other interested persons who
at increasing wage transparency islation in future. Interestingly, indicated that it would not en- not directly addressed this is- may have viewed the NOF.”
for job seekers, these laws typ- some wage transparency laws force its wage transparency law sue. In the meantime, analyzing The employer cited a
ically require that job postings could be interpreted to apply against PERM recruitment, it how the DOL has viewed wage pre-PERM case University of
disclose the salary that the em- even to remote positions that has not formalized this guid- ranges that partially fell below North Carolina, 1990-INA-
ployer plans to offer applicants. could be performed from one of ance in writing, and other juris- the prevailing wage can provide 00422 (June 9, 1992) establish-
Colorado’s law went into effect the impacted jurisdictions, even dictions have not offered similar helpful guidance. ing that 20 CFR § 656.17(f) was
on January 1, 2021, and re- if the employer does not cur- assurances As mentioned above, the satisfied if the wage offered is
quires employers with at least rently have a presence in that In the permanent labor PERM regulations do not re- no less than the wage offered
one employee in Colorado to state. Penalties in New York, certification (PERM) context, quire recruitment to list a sal- at the time of the foreign work-
list the applicable hourly wage for example, can require offend- these laws present a host of ary at all, with the exception of er’s initial hire. In University of
or salary for the position. New ing employer to “pay monetary new issues for employers to the NOF. 20 CFR § 656.10(d) North Carolina, the university
York City’s law went into effect damages to affected employ- consider. The PERM regula- (4) states: “If an application is indicated a salary of $23,100 in
on November 1, 2022, and re- ees, amend advertisements and tions 20 CFR §656.17 and 20 filed under § 656.17, the notice all of its advertisements for a re-
quires employers with 4 or more postings, create or update poli- CFR §656.18 require only the must contain the information search associate position, which
employees, at least 1 of which cies, conduct training, provide Notice of Filing (NOF) to list required for advertisements exceeded the prevailing wage
is located in New York City, to notices of rights to employees or the wage or wage range of- by § 656.17(f), must state the determination and reflected the
fered for the position, but rate of pay (which must equal noncitizen’s salary at the time.
employers may now find or exceed the prevailing wage By the time the PERM applica-
that they are required to entered by the SWA on the pre- tion itself was filed, though, the
disclose a salary range on vailing wage request form), and noncitizen’s salary had risen to
newspaper and website must contain the information $30,000. BALCA overturned
advertisements that would required by paragraph (d)(3) the denial of the PERM appli-
typically not have included of this section”. Employers who cation, reasoning that 20 CFR
this information. Although do list a wage or wage range in § 656.21(g)(8) requires the em-
Colorado indicated that it advertisements in newspapers ployer to advertise a wage that
would not enforce its wage or professional journals are is no less than what the noncit-
transparency law against required to ensure that these izen was offered at the time of
PERM recruitment, oth- advertisements do “[n]ot con- their initial hire, not the offered
er jurisdictions have not tain a wage rate lower than the salary at the time the PERM
offered similar assuranc- prevailing wage rate” pursuant application is filed. However,
es. See AILA Doc. No. to 20 CFR § 656.17(f)(5). Fur- in Gallup KcKinley, BALCA
21040231. Interestingly, thermore, 20 CFR § 656.17(f) held that subsequent panels
some jurisdictions’ wage (7) states that that advertise- have rejected the reasoning in
transparency laws may ment shall “not contain wages University of North Carolina
apply to advertisements or terms and conditions of em- as US workers could potential-
for remote positions that ployment that are less favorable ly pass on the job opportunity
could be performed from than those offered to the alien.” because of the difference in
that location, even if the If a wage range is indicat- the lower wage in the adver-
employer otherwise has no ed in the advertisements, it is tisement and the higher wage
presence or current em- important that the Notice of privately offered to the noncit-
ployees in the jurisdiction. Filing (NOF) also contains the izen. See, e.g., Sensus Metering
Further complications same wage range. BALCA has Systems, 2010-PER-00849 (July
arise when an employer held that employers violate 20 20, 2011). In Sensus Metering
m of wishes to list a salary range CFR § 656.17(f)(7) if the NOF Systems, the employer listed
CYRUS D. MEHTA & PARTNERS PLLC in its PERM recruitment contains a wage lower than a higher offered wage on the
ETA 9089 than the NOF, and
in order to comply with a
the wage offered the foreign
state or local wage trans- worker. In Gallup McKinley the employee had only gained

parency law, and the low- County Public Schools, 2016- about 7 months of additional
er end of that falls below PER-00646 (BALCA April 16, experience with the employer

  the prevailing wage de- 2021), the wage range offered since the position was adver-
   
­ termined by the Depart- to a Middle School Teacher was tised, rather than 3-5 years as
€
‚   ment of Labor (DOL) or $50,273 to $57,402. The NOF in University of North Caro-
if the wage range in the identified the wage as $52,000 lina. BALCA has also upheld
advertisement materials per year. The BALCA upheld denials of PERM applications
does not conform with the the Certifying Officer’s denial where the lower end of a wage
wage stated in the Notice since the wage range suggested range as listed in the advertise-
2 6th Floor of Filing. This scenario that the foreign national em- ments fell below the salary of-

    may be compliant with ployee would be paid a wage up fered to the noncitizen on the

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