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This alert has been provided by the BAL U.S. Practice Group.
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In recent years, several U.S. states and localities have begun to introduce pay transparency laws with the aim of reducing pay inequities and closing the gender wage gap. There are notable differences among these laws, as some require only disclosure upon request by a candidate while others require disclosure of wage ranges on all job postings themselves. These laws introduce an entirely new set of risks to be evaluated and decisions to be made by internal and external counsel for any employer using the PERM recruitment process to extend permanent job offers to foreign nationals.
With a few exceptions, a company wishing to permanently employ a foreign worker in the United States must proceed through the PERM process. This process works first to identify whether a minimally qualified U.S. worker may be available and willing to accept a given role. A company may proceed in offering that role to a foreign worker only if a minimally qualified, willing and available U.S. worker is not found. PERM regulations require employers to post recruitment through various channels mandated by the Department of Labor, but they do not require employers to post wage ranges or disclose benefits in public job postings.
However, an employer going through the PERM process is required to seek a prevailing wage request for each sponsored job from the DOL. At times, the prevailing wage issued by the DOL may be higher than the lower end of the company’s actual wage range. In these situations, a company may proceed with their PERM process but cannot offer a rate lower than the prevailing wage for that particular role.
This situation introduces an interesting conundrum for employers seeking to simultaneously comply with PERM regulations and state- or locality-driven laws on pay transparency. For instance:
First, it is vital for employers to engage their employment counsel to determine whether a particular wage transparency law applies to them as an employer or to a particular position for which they are recruiting. In many cases, employers must now consider the chosen home addresses of their current employees as well as the candidate pool for the position for which they are hiring. This means that a particular job posting may be subject to wage transparency laws for multiple jurisdictions. In addition, the employer must also work with their employment counsel to determine what constitutes a “good faith” range of the minimum and maximum pay for the position. While some employers provide a very broad range, encompassing actual minimums and the maximum conceivable amount they might be willing to pay, others have provided a scale along the bell curve, or any variation between.
After the wage ranges are vetted and approved by employment counsel, employers are then faced with the challenge of complying with federal PERM regulations, which can sometimes run in direct opposition. For example, while wage transparency laws require employers to post good faith wage ranges, PERM regulations do not permit the lower end of that range to fall short of the prevailing wage determination.
Colorado was the first state to mandate pay transparency in public job postings and quickly recognized the inherent contradiction between their wage transparency law and federal PERM regulations. This led to an informal conclusion that state wage transparency laws would not be enforced in the context of PERM recruitment. However, even this introduces risks for employers, as major employers have been charged recently with conducting PERM recruitment in a manner that is completely at odds with normal recruitment practices. Advertising for PERM roles with different wage content than a company’s normal postings may open it up to additional scrutiny by the state or by the DOL or even the Department of Justice.
As more states and localities enact varied pay transparency laws, the complications will continue to increase. Companies’ in-house counsel, immigration and global mobility teams must take care to partner closely with both their employment counsel and their immigration counsel to ensure that they are implementing practices that comply with both state and federal laws in this space.
Stephanie S. Pimentel is a BAL Partner in BAL’s Dallas headquarters and Asha George is a Senior Associate in BAL’s New York City office.
DALLAS (May 16, 2023) — BAL continues to lead the pack in immigration law, with 14 BAL attorneys named to Lawdragon’s 2023 list of 100 leading immigration lawyers.
The prestigious publication said it selected the honorees through a process that combines journalistic research, robust submissions and vetting by peers. BAL led the way with more attorneys than any other corporate immigration firm. Those recognized were:
Additionally, Jeff Appleman and David Berry, BAL partners emeriti, were listed in the guide as members of the Lawdragon Hall of Fame.
While Lawdragon has included immigration attorneys in the past on its list of Leading Corporate Employment Lawyers, this was the first year it published a guide exclusively dedicated to immigration law. The 2023 Lawdragon Leading Immigration Lawyers guide is available here.
About BAL Established in 1980, BAL powers human achievement through immigration expertise, people-centered client services and innovative technology. BAL, with 13 offices across the United States and global coverage in more than 185 countries around the world, operates as a single entity through its oneBAL culture — a uniquely holistic approach, intentionally structured as one team, one brand, one P&L, one standard of excellence and one unifying technology. This united approach enables the firm to deliver the highest level of knowledge, insights and resources from across the entire organization.
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
DALLAS (May 9, 2023) — BAL has been recognized by Inc. magazine, a premier business publication, as one of the Best Workplaces of 2023.
“This recognition validates BAL’s core value of putting people first,” said CEO Jeremy Fudge. “Inc. magazine selecting us as one of the best workplaces in the world confirms our people feel that and, in turn, live that out with each other every day.”
BAL was chosen from thousands of submissions on the basis of a rigorous selection process conducted by third party Quantum Workplace. Quantum conducted an employee survey covering topics such as management effectiveness, perks, fostering employee growth and overall company culture as well as audited the firm’s benefits to score and rank them compared to other companies in the country.
“Being named to Best Workplaces is an honor that only a small fraction of companies have been able to claim,” said Scott Omelianuk, Inc. editor in chief. “Proving to the world that you’re a magnet for talent and have a culture that keeps teams engaged, productive and proud to come to work is a truly remarkable achievement.”
BAL Chief People and Culture Officer Nicole Dawson noted that BAL stands apart thanks to innovative talent-development programs, including Explorers, where employees shadow colleagues in roles they are interested in; Elite Performance Transformation, which goes beyond traditional performance evaluations to support employees’ personal and professional goals; and development programs designed to enhance BAL’s culture by strengthening its leaders.
“These unique programs together with BAL’s collaborative culture contribute to our exceptional workplace environment and reputation,” she said. “This honor by Inc. confirms we are operating at a level far beyond just the legal industry and setting new benchmarks for all companies.”
About Inc. Media The world’s most trusted business-media brand, Inc. offers entrepreneurs the knowledge, tools, connections and community to build great companies. Its award-winning multiplatform content reaches more than 50 million people each month across a variety of channels including websites, newsletters, social media, podcasts and print.
Many law firms separate their local offices, which can lead to different client experiences across the country. BAL is different. We are intentionally structured as one team, one brand, and one profit & loss center. That means you and your team receive the same service and technology in Seattle as you would from any of our 13 other locations—and benefit from the experience of all of them.
BAL doesn’t innovate “just because.” We develop technology that empowers companies to make better decisions. Our mission is to make the immigration process easier for our clients and their employees, and our innovations landed us on Fast Company’s Most Innovative Companies of 2023.
Working with BAL means access to our award-winning technology, including:
If you are ready to partner with an immigration firm, Contact us today.
BAL’s team of experienced attorneys, including Partner Susan Wehrer and Senior Associates Steven Plastrik and Emily Yao, are well-equipped to assist Seattle-based companies with their immigration needs. With their extensive experience in government, customer service, and a variety of industries, they provide personalized solutions to help clients achieve their business goals. As part of a larger network of offices across the US, Seattle-based clients have access to the full resources of BAL.