Dorsey Work Watch

Dorsey Partner Nisha Verma offered perspective on the Department of Labor’s (DOL) planned recission of the previous administration’s 2024 independent contractor rule. The DOL intends to reestablish the “economic reality test” under the Fair Labor Standards Act, which evaluates independent contractor status by examining the individual’s control over their work and their opportunity for profit or loss based on initiative or investment. Nisha contributed to an HR Dive article saying, “commentators like to call the newer rule ‘employer-friendly’ and the prior 2024 rule ‘employee-friendly,’ but in my experience, that is reductive and ignores the nuance these situations present.” She added, “I would like to see worker choice play more of a role in the analysis going forward, particularly since workers are more aware of their own tax circumstances, ability to earn other income, and need for flexibility than the business.” Read the full article in HR Dive

California’s employment law landscape is changing fast — and this time, it’s simply not a minor revision to the Private Attorneys General Act of 2004 (PAGA). The 2024 legislative reforms and the growing split among appellate courts over so-called “headless” PAGA claims reveal a widening gap between statutory reform and judicial practice. First, “headless claims” arise when an employee dismisses their individual PAGA claim—often because the Federal Arbitration Act (FAA) mandates enforcement of an arbitration agreement—but seeks to continue only the representative claims on behalf of other allegedly aggrieved employees. This strategy, increasingly used by plaintiffs’ counsel to bypass arbitration, has divided California’s appellate courts on a critical question: does a plaintiff retain standing to pursue representative PAGA claims once their individual claims are dismissed? Second, the 2024 amendments to PAGA – effective June 19, 2024 – create tools for employers to defend against PAGA actions.  The reforms redefine who qualifies as an “aggrieved employee,” expand employers’ opportunities to cure alleged violations, and reduce penalties where reasonable compliance efforts are shown. Most notably, the reforms impose a personal standing requirement: employees may only pursue penalties for Labor Code violations they personally experienced. This change curtails the “kitchen-sink” approach to PAGA pleadings and limits who may serve as a proxy for the state under the Labor and Workforce Development Agency (LWDA). Together, these developments mark a pivotal moment for one of California’s most powerful wage-and-hour enforcement tools. At the center lies a collision between California’s public enforcement model under the LWDA and the FAA’s mandate to enforce arbitration agreements – a collision that could fundamentally reshape how, and by whom, California labor laws are enforced. I. The LWDA’s Role — and Its Limits, Particularly with the Result on Headless Claims The LWDA’s position as the “real party in interest” in every PAGA case defines what these actions are, and what they are not. PAGA suits are not private disputes between an employer and an employee; they are enforcement actions brought on behalf of the state. In Rose v. Hobby Lobby Stores, Inc., the First District reaffirmed that while the LWDA owns the substantive rights being enforced, it is not financially responsible for litigation costs when it does not intervene. The LWDA holds the substantive right being enforced, but delegates its prosecution, permitting private plaintiffs act as its proxies.  That balance worked under the former PAGA structure, but the LWDA’s ability to act through private enforcement may be curtailed in practice, should “headless” claims be disavowed.  In effect, the state will still own the claims, but those claims will live or die based on the private employee’s arbitration. II. The "Headless Claims" Conundrum: A Circuit Split in Action If the California Supreme Court sides with the Second District and rejects headless claims, plaintiffs will be required to arbitrate their entire individual case before representing anyone else. On paper, that’s a win for employers — reinforcing arbitration programs and narrowing sprawling PAGA exposure. But beneath that surface lies a fundamental limitation on the LWDA’s ability to act through private plaintiffs. Here’s how the appellate landscape currently breaks down:   Appellate District  Position  Key Case(s)  Reasoning Second Appellate District Rejected headless claims entirely Leeper v. Shipt, Inc. (Dec. 2024) (pending review) Williams v. Alacrity Solutions Group, LLC (April 2025) PAGA includes individual and non-individual claims, regardless of how the complaint is framed, so purely headless claims cannot avoid arbitration. Fourth Appellate District Permitted headless claims on purely procedural grounds Rodriguez v. Packers Sanitation Services LTD., LLC (Feb. 2025) (pending review) There is no individual PAGA claim to compel to arbitration in a purely headless claim, but this leaves open the potential for other pleading challenges, such as demurrer or motion to strike. Fifth Appellate District Permitted headless claims pre-2024 bill reforms CRST Expedited, Inc. v. Superior Court (July 2025) Galarsa v. Dolgen California, LLC (Oct. 2025) PAGA’s representative structure provides three choices: (1) to pursue only their individual violations; (2) to pursue only non-individual violations; or (3) to pursue both.   Although the outcome of these cases will impact litigation strategy, all involve pre-reform PAGA claims, and have yet to address the implications of the post-2024 statutory standing requirement, which adds yet another layer of complexity moving forward. III. The Federal Constraints to PAGA – And What Remains Constant Despite the uncertainty surrounding headless claims, two federal pillars remain constant: the FAA and the Labor Management Relations Act (LMRA). Both impose preemption doctrines that define where federal law overrides state law — but they do so in very different ways. The FAA governs arbitration agreements, ensuring valid agreements are enforced unless a specific exemption applies.  For example, in Villalobos v. Maersk, Inc. (October 2025), there was no individual claim subject to arbitration because the plaintiff was a transportation worker exempt from the FAA. Simply, as made clear by the court in Villalobos, case authority related to headless claims cannot be used to bootstrap FAA coverage where none exists. Meanwhile, under the LMRA, preemption arises only when resolution of a PAGA claim requires interpretation of a collective bargaining agreement (CBA). In Renteria-Hinojosa v. Sunsweet Growers, Inc. (9th Cir. Aug. 2025), the court held that PAGA claims are not preempted if they merely reference, rather than interpret, a CBA. However, when an employee’s claim depends on exhausting a CBA’s grievance process, LMRA preemption applies. These federal anchors – FAA enforceability and LMRA preemption – remain stable amid California’s shifting state-law terrain and thus serve as guideposts in assessing arbitration risk and preemption defenses. IV. A New PAGA for a New Era With the California Supreme Court poised to decide Leeper and Rodriguez, and the 2024 reforms already in effect, PAGA is entering a defining chapter. The unanswered question is whether the LWDA can still meaningfully enforce labor laws through deputized private plaintiffs if every case must begin (and possibly end) in individual arbitration. For employers, that paradox is striking: a ruling requiring arbitration of individual claims first in all instances could mark the quiet sunset of PAGA’s broadest enforcement powers. Either way, the coming year will reshape the balance between state enforcement and federal arbitration mandates — and that balance will define the next decade of California wage-and-hour litigation.

As we discussed in a recent post, equal pay transparency (EPT) laws are on the rise across the country. While complex in their own right, EPT laws introduce new risks and challenges for employers undergoing an already complicated recruitment process to hire foreign nationals through the Department of Labor’s (DOL) permanent labor certification process, or PERM. What is PERM? The United States Citizenship and Immigration Service (USCIS) offers foreign nationals different pathways to lawful permanent residence (i.e., obtaining a “Green Card”) in the U.S. Relevant here, there are five employment-based (EB) visa preference categories, and of the five, the most common are EB-2 (for workers holding advanced degrees or who have “exceptional ability” in the sciences, arts, or business) and EB-3 (for skilled workers, professionals, or other workers). Employers tend to pursue these two preference categories because there is generally less subjectivity in the process compared to the other preference categories, which makes the process more predictable. A drawback, however, is that in most instances, the hiring of a foreign national in either EB-2 or EB-3 requires the employer to complete the PERM labor certification process, which is highly technical, lengthy, and complex regulatory recruitment process. Because U.S. immigration law requires that the hiring of a foreign national will not adversely impact U.S. workers, PERM regulations require a sponsoring employer to demonstrate that it has sufficiently tested the labor market and can attest that there are no qualified, able, and willing U.S. workers to fill the position in question. Overview of the PERM Labor Certification Process The PERM labor certification process is one of the most complex aspects of employment-based immigration. The entire process currently takes between fifteen to twenty-four months, which means that any mistake can derail the process and cause significant delays. Because many foreign nationals also rely on PERM to obtain additional extensions to their nonimmigrant statuses, these missteps can be detrimental to a foreign national’s continued work authorization. An employer begins the multistep PERM process by identifying the position to be filled and carefully drafting the position’s job description. This includes identifying the position’s duties, worksite location, minimum requirements, anticipated Standard Occupational Classification (SOC) code, and wage level. It is important to get this step right because the job description is an integral component of the PERM application. Once the job description has been drafted, the employer submits a prevailing wage request to the DOL. The DOL, in about six months, issues a prevailing wage determination (PWD). A prevailing wage, which the DOL defines as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment,” is based on a number of factors, including the position’s title, worksite location, education, experience, and other requirements. It is the rate at which the employer must at least offer the position; the employer cannot advertise the position at a lower rate. The idea here is that a lower rate could discourage U.S. applicants from applying. Impact of EPT Laws on PERM Recruitment While EPT laws vary greatly by jurisdiction, a growing number of them require employers to disclose pay ranges in any advertisement for a job, with variations in content. The disclosure must be a good-faith expectation of the pay associated with the position, and must not be open-ended. In contrast, PERM regulations require that an employer include the wage information only on the Notice of Filing (NOF), which is a notice – not an advertisement – posted internally at the employer’s respective job site. The other forms of mandatory PERM recruitment (e.g., advertising the position in two Sunday newspapers, placing the job ad on the State Workforce Agency website, etc.) do not require disclosure of pay. However, employers undergoing PERM recruitment must now assess whether the advertisement for the position constitutes an advertisement or other posting under applicable EPT laws. In other words, EPT laws may mandate that pay information be listed in all forms of PERM recruitment. Moreover, an employer’s disclosure under EPT law, while made in good faith, may otherwise be problematic for PERM purposes if the lower end of the pay range falls short of the PWD. For purposes of PERM recruitment, a job posting with a wage range lower than the PWD will be deemed insufficient to demonstrate compliance with the PERM regulations. The DOL has consistently denied PERM applications where the wage range on the NOF was lower than the PWD, so it is likely the DOL would do the same with other types of recruitment. Accounting for Remote Positions As mentioned above, the worksite location is an important factor impacting the PWD. But what if the sponsoring employer is advertising a PERM position that will be remote? When a position allows for fully remote work from anywhere in the U.S., DOL guidance instructs that the employer should conduct PERM recruitment using the employer’s corporate headquarters as the location. By way of example, if a sponsoring employer has headquarters in California and submits a PERM application for a position that allows for fully remote work anywhere in the U.S., and the prospective employee for whom the application was submitted lives and works in Georgia, the employer must recruit in California to satisfy PERM requirements.  Likewise, the PWD will also be based in California. Therefore, when the sponsoring employer advertises for the position, the wage range cannot be lower than the California-based PWD, even if the employer anticipates filling the position with a worker in Georgia. As a further illustration, if a sponsoring employer has headquarters in Missouri, and submits a PERM application for a remote position to be performed anywhere in the U.S., the PWD and PERM recruiting efforts will be Missouri-based.  If the prospective employee for whom the position was submitted lives and works in Washington state, the Missouri-based employer could be covered by Washington’s EPT law, even though it is an out-of-state employer. Under Washington’s law, out‐of‐state employers with 15 or more employees (including at least one Washington‐based employee) are subject to the EPT law if the position could be performed by a Washington employee. Similar laws exist in California and New York City. Notably, a number of EPT laws require more than just disclosures of pay ranges. For instance, Colorado and Washington require disclosure of benefits and other compensation. So, sponsoring employers covered by a myriad of EPT laws may be wise to choose a broad approach to advertising, requiring them to include not only a pay range, but also a general description of certain benefits and other information to satisfy those laws’ heightened requirements. What Employers Should Do The Colorado Department of Labor (Colorado DOL) acknowledged the discrepancies between PERM regulations and Colorado’s EPT law and informally announced that it would not enforce the EPT law in PERM recruitment efforts. This informal announcement left immigration practitioners wondering whether other state DOLs would issue similar relief. To date, however, no other agencies (or states with EPT laws) have gone as far to say that they will not enforce their EPT laws in the context of PERM recruitment. The federal DOL, which administers PERM, has not updated the PERM regulations to incorporate language regarding whether or not practitioners must abide by the EPT laws to satisfy the PERM regulations. The PERM labor certification process is no doubt a complex maze of regulatory requirements. And while EPT laws surely complicate the process, the consequences of noncompliance can be significant. Employers who violate EPT laws are up against a number of different penalties and fines. Depending on the jurisdiction, employers can be subject to agency investigations, lawsuits and associated costs and fees, civil penalties ranging from $500 to $250,000, and more. As such, employers seeking a PERM labor certification should ensure compliance with all state and local laws (EPT or otherwise). Dorsey’s immigration and employment counsel are here to help your business determine how best to approach PERM recruitment in light of EPT laws.

Dear QQ: I am the HR Director for a technology company.  We have offices in three states and hire employees from all over the country.  Since 2020 we have let employees work remotely from the state of their choice.  I’ve been hearing a lot about pay equity, but am not clear on the different types of laws and where they apply.  Are they all basically the same thing?  Because of them, I’ve been advising senior management that we should conduct a pay equity study, but I’m not sure how to conduct one.  Pay equity is a hot topic for employers in 2022.  There have been high profile developments, such as the preliminary court approval of a $24 million settlement payment by U.S. Soccer to the U.S. Women’s players, as well as a number of new requirements issued by President Biden and state and local legislatures. The current push for new tools to achieve pay equity is in large part a response to inequities exposed by the COVID-19 pandemic and recent social movements including Black Lives Matter and #MeToo, because despite the non-discrimination requirements on the books, pay inequity persists. Women and people of color still earn less than white men do, and the disparity is even greater for women of color. New requirements aim to increase the likelihood that traditionally underpaid groups earn as much as their historically advantaged counterparts and to decrease historical power imbalances between employers and employees. These developments have occurred in three main areas: salary transparency requirements in the hiring process, protections for employees who discuss their—or their colleagues’—wages, and bans on asking applicants their salary histories. Pay transparency laws and protections for employee wage disclosures seek to reduce or eliminate secrecy surrounding compensation with the aim of putting all candidates on equal footing. Pay history bans help to equal the playing field in new hire salary negotiations and to support equitable pay for longer-term employees by forcing employers to set compensation based on the position rather than building on a candidate’s prior, potentially discriminatory, compensation. Many employers are conducting or plan to conduct pay equity studies to ensure pay fairness in their organization and to limit exposure to pay discrimination claims. New state and local laws of these types are being enacted with some frequency, so employers are advised to check on requirements prior to posting advertisements for positions. Salary Transparency Laws Colorado led the salary transparency charge in 2021. Its law requires, among other things, that any employer with at least one employee in the state, when posting for a position which could be potentially filled by a Colorado resident (whether working onsite or remotely), include compensation information in the job posting, notify existing employees of promotional opportunities, and maintain records of job descriptions and applicable wage rates. Connecticut; certain localities, for example, in New York State: Ithaca, Westchester County, and New York City (eff. Nov. 2022); Maryland; Nevada; Rhode Island (eff. 2023); and Washington also have salary transparency laws in effect. Among other requirements, the laws generally require employers to provide compensation information to job applicants either proactively or upon request. The state legislatures in California and New York recently passed similar broad-based salary transparency bills that await their respective governors’ signatures. State legislatures in Alaska, Massachusetts, Michigan, South Carolina, and Vermont have proposed comparable legislation. The laws vary as to which job postings are covered and the scope of requirements.  The Colorado law, for example, requires covered employers to list Colorado compensation ranges in ads for positions that are linked to a Colorado location or may be performed remotely from Colorado. The California bill does not appear to limit coverage to employees in California and so it would seem to apply to covered employers’ postings for remote positions. The New York bill would apply to covered employers’ postings for all jobs which “can or will be performed, at least in part, in the State of New York” and so would seem to also apply to remote positions. Requirements range from requiring employers to publish salary information in advertisements to notifying current employees of a new position’s salary range to providing pay scales upon request (as is already required of some California employers). Employers who will be subject to salary transparency laws should think carefully about how the required disclosures could affect current employees. Employers should make sure pay bands are current and positions are appropriately placed in them. Then they should analyze how current employees’ compensation stacks up to the disclosed compensation and how current employees may react when they see posted salary information.  Employees earning less than publicized rates may allege that the difference is based on discrimination unless employers are prepared to articulate legitimate reasons for the differences. Wage Disclosure Protections California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New York, Oregon, Puerto Rico, Rhode Island (eff. 2023), Vermont, Virginia, Washington, and the federal National Labor Relations Act provide employees with wage disclosure protections. The laws generally prohibit employers from limiting employees’ right to disclose their own wages and from taking adverse action against employees who disclose their own wages or discuss the voluntarily-disclosed wages of another employee. As with pay transparency laws, employers subject to wage disclosure laws should consider the potential impact of employee compensation becoming more widely known among employees. Salary History Bans Many of the states and localities noted above, and others, such as Alabama and Wisconsin, restrict employers from asking job applicants about their current and/or past compensation history and impose other limitations on the way applicants’ wage or salary history may be used.  Additionally, in March 2022, President Biden issued an executive order instructing the FAR Council to consider whether rules should limit or prohibit Federal contractors and subcontractors from seeking and considering information about job applicants’ and employees’ existing or past compensation when making employment decisions. The Office of Personnel Management anticipates issuing a proposed regulation that will bar the use of prior salary history in the hiring and pay-setting processes for federal employees. For example, New York’s law prohibits employers from: relying on applicants’ wage or salary history in deciding whether to offer employment or in determining wages; seeking, requesting, or requiring applicants or employees to provide their salary history as a condition of being interviewed, employed, or promoted; or refusing to interview, employ, or promote, or otherwise retaliating against applicants or employees based on their prior wage or salary history or their refusal to provide it. Pay Equity Studies With all of this in mind, many employers are conducting or considering pay equity studies.  Pay equity studies are a great way for employers to understand whether their employees are paid fairly and can be a strong defense against claims of system-wide or disparate impact discrimination.  But employers should proceed thoughtfully, because a poorly planned or executed pay equity study could end up causing more harm than good and open the door to discrimination claims. Best practices when conducting a pay equity study include the following: Obtain leadership buy-in before beginning the pay equity study. You don’t want to find problematic compensation and then have no tools to correct it. Evaluate position placement in pay bands, as well as rates in position, before you begin. You want to use good data. Conduct the study under attorney-client privilege. While the underlying salaries are not privileged, you want the study itself to be. Determine appropriate segmentation of positions. If these are not appropriately selected, you may end up comparing apples to oranges. Conduct a statistical analysis. Many employers hire consultants with this expertise to “do the math,” but there are also companies that provide software to allow employers to perform the comparisons in-house. Determine whether legitimate job differences or compensation philosophies and practices explain discrepancies. Determine salary adjustments to make, perhaps over time, and think through the best way to present any adjustments to employees. If you find structural pay disparities, identify and change pay practices that may create or continue them.

Agricultural employers are often at the mercy of nature which causes constant fluctuations in labor needs. Given the unique nature of the agricultural industry, their workers have historically been exempt from minimum wage and overtime requirements. These requirements differ from state to state, and employers are noting a change in the agricultural exemption. Some states have removed, or are considering removing, the exemption for agricultural workers from their wage and hour laws. This generates legitimate concerns from employers faced with new compliance issues and increased labor costs. Many employers may be wondering: Are my agricultural employees still exempt from wage and hour laws, to what extent, and will my state’s exemption be the next to go? The Fair Labor Standards Act (FLSA) establishes federal regulations regarding wages, hours, and child labor within interstate commerce. These regulations set the federal minimum wage and provide that employees must be paid time and one-half of their regular rate for any hours worked in excess of forty hours a week. However, the FLSA exempts certain employees from the minimum wage provisions, the overtime provisions, or both. One of those exemptions applies to agricultural workers. Who is exempt from the FLSA and from which provisions? To fall within the agricultural exemption, an individual must be “employed in agriculture.” This includes individuals who: are employed by a farmer, work on a farm, or who are otherwise engaged in agriculture. The FLSA defines agriculture to “include farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” To determine whether a particular activity is considered agricultural work, it must be carried on as a part of the agricultural function rather than an independent productive activity. Any employer who did not engage more than 500 person-days of agricultural labor during any calendar quarter during the preceding calendar year is exempt from both the minimum wage and overtime provisions. Additionally, employees who are immediate family members of the employer and certain hand harvest laborers are also exempt from both provisions. Exempt from only the overtime provision are employees who are employed in agriculture, as defined above, or in irrigation. While there are some limitations and additional exemptions provided by the FLSA, generally, employees who are employed in agriculture will be exempt from the federal overtime requirements and may also be exempt from the minimum wage requirements. eCFR :: 29 CFR Part 780 -- Exemptions Applicable to Agriculture, Processing of Agricultural Commodities, and Related Subjects Under the Fair Labor Standards Act. However, just because employees fall under an exemption to federal wage and hour regulations, does not mean that employers do not have to comply with state wage and hour laws. But what about the States? Should I be concerned? And how do I prepare? States may adopt their own versions of the FLSA so long as their regulations are equally protective or greater than those defined federally – and most have done so. Following the FLSA’s example, many states have included an agricultural exemption to their wage and overtime provisions. Some of these exemptions completely exempt agricultural workers from either or both the state minimum wage and overtime provisions or provide standards more protective than the federal regulations but less stringent than those that apply to other types of workers within the state. A full list of state overtime and minimum wage provisions for agricultural workers can be found at Overtime & Minimum Wage Compilation - National Agricultural Law Center (nationalaglawcenter.org). It is important to note that a recent trend has emerged in which states are removing the agricultural exemption from their wage and hour laws. So far, seven states have removed their agricultural exemption to some degree including California, Colorado, Hawaii, Maryland, Minnesota, New York, and Washington. These removals have been prompted by legislation, as in California, or through case law invalidating the agricultural exemption itself, as in Washington. Generally, once the exemption is removed, the changes in requirements are implemented in phases. This allows employers time to adjust to new scheduling and pay practices. However, many employers are still finding it difficult to comply with the new requirements. Whether employers are located in a state which is considering removing its exemption, such as Massachusetts, or are worried about how much longer their exemption will be in place, there are a few things that can be done in preparation of a change. Review pay practices. Employers should periodically review their pay practices to ensure compliance with both the FLSA and current state wage and hour laws. While an exemption may apply to one type of employees, it may not apply to another. Employers should review compliance by type of employee as well as consider how state regulations may differ if they employ agricultural workers in multiple states. Additionally, farmers utilizing the services of farm labor contractors should ensure that the contractor’s pay practices are also compliant given the potential for joint employer liability. Plan for the possibility of removal. A removal of the agricultural exemption brings with it increased labor costs. Therefore, employers may consider preparing for a change in scheduling practices to avoid overtime or invest in mechanized agriculture to offset the added labor costs. This includes obtaining time and attendance software, gathering pay information, and updating policies. Remain up to date. Now more than ever, it is imperative that agricultural employers are in the know regarding their state’s agricultural exemption and the risk of its removal. Subscribe to the Quirky Questions blog to receive updates regarding changes in labor and employment law or contact your Dorsey employment attorney for guidance.

Raise your hand if you are a human resources professional who has had it up to the proverbial HERE with sifting through state law requirements for remote workers? This post is for you! Today we are taking a closer look at Colorado’s Equal Pay for Equal Work Act and how its pay transparency provisions apply to multi-state employers. Here’s the scenario: My company is based in Minnesota (or some other state that isn’t Colorado). We are posting a position online (e.g. Indeed, LinkedIn). The position will be 100% remote and we will accept applicants from all 50 states, including Colorado. Does my posting have to comply with Colorado law? The answer depends on a couple of factors. First, does the company currently have at least one employee in Colorado? If yes, then the company is a covered employer as defined by the Act. If the company does not have any employees in Colorado, the company is not covered by the statute. Next ask, could the position potentially be filled by a Colorado resident? Employers should take a broad read of this question. In other words, unless it is an absolute certainty that the company will not hire a Colorado resident, the answer to this second question is probably “yes.” Did you answer “yes” to both of these questions? If so, then your company is a covered employer and any job posting accessible by Colorado residents that could potentially be filled by a Colorado resident must comply with the Act. So what is a compliant posting? Job postings must include: (1) the rate of compensation (e.g. salary or hourly rate), but a range of the lowest to the highest pay the company actually believes it might pay is acceptable; (2) a general description of bonuses, commissions, or other compensation, if any; and (3) a general description of all benefits offered with the position (e.g. health insurance, retirement plan, paid time off). Regarding the third point, the description of benefits may be general, but must be complete. What does that mean? Employers cannot use terms like “etc.” or “and more.” “All benefits” means all benefits. But wait, we aren’t done yet! What about the Act’s provisions requiring covered employers to post promotional opportunities to existing employees? If the company is a covered employer, then the company is required to notify its Colorado employee(s) of all promotional opportunities, including for positions to be performed outside Colorado. However, notices of promotional opportunities for jobs to be performed entirely outside Colorado need not include compensation and benefits information. Likewise, multi-state employers are not required to notify their non-Colorado employees of promotional opportunities in Colorado (or elsewhere, unless required by state law). Bottom line: If an employer has even one employee in Colorado, and is posting a new position or promotional opportunity that can be performed from anywhere (including Colorado), the posting needs to include the requisite compensation and benefits information. As a parting note, keep in mind there are other states and localities that require some form of pay transparency including California, Connecticut, Maryland, Nevada, New York City, Rhode Island, and Washington. Contact your favorite outside employment counsel with questions on pay transparency laws and any other remote worker compliance issues.

It’s a situation any Human Resources professional might find themselves in – circumstances require you to effectuate a termination in short order and you have to scramble to calculate the employees’ correct final pay and prepare a paycheck. But what if the wage statement is not ready? Does the law require employers to provide a wage statement to a terminated employee simultaneously with their final paycheck? Thanks to a recent decision from the California Court of Appeal, you have a little breathing room. In Canales v. Wells Fargo Bank, 23 Cal. App. 5th 1262 (2018), Wells Fargo had a practice of paying certain terminated employees final wages via cashier’s checks – which were prepared in the bank branch – and then mailing the wage statements to the employees from another location, either that same day, or the following day. The plaintiff complained that the wage statements should have been provided simultaneously with the paychecks, and that Wells Fargo’s practice of mailing them constituted a violation of California Labor Code section 226, which provides: “…[e]very employer should semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing…” Wells Fargo responded that it was in compliance with the statute because: 1) The statute does not require simultaneous delivery of wage statements and specifically allows employers the option to provide wage statements “semimonthly;” and 2) It was permitted to mail the wage statements, because the statute provides that wage statements can be delivered “separately” in the case of a cashier’s check, which is analogous to cash. The court agreed, holding, “…if an employer furnishes an employee’s wage statement before or by the semimonthly deadline, the employer is in compliance.” The court explained that it interpreted the phrase ‘“semimonthly or at the time of each payment of wages’ as representing the outermost deadlines by which an employer is required to furnish the wage statement.” The court provided the following example: [S]uppose an employer furnishes wage statements on the first and 15th of each month. The employer discharges an employee on the second of the month. Per the statute’s plain language, if an employer pays the final wages by personal check or cash, it has the option of furnishing the discharged employee with the wage statement. We find it illogical to conclude an employer violated section 226 by furnishing a wage statement before the semimonthly date has been reached. If the employer furnishes the wage statement to the discharged employee of the fifth of the month, the employer has complied with the requirement that it furnish the wage statement to the employee “semimonthly” because the employee would have ostensibly been furnished with the wage statement by the semimonthly date. The court also rejected the plaintiff’s reliance on the California DLSE (Division of Labor Standards Enforcement) Enforcement Policies and Interpretations Manual, which provides, “[a] California employer must furnish a statement showing the following information to each employee at the time of payment of wages (or at least semi-monthly, whichever occurs first),” holding that the Manual is not entitled to deference as an agency regulation because it was not promulgated in accordance with the Administrative Procedure Act. The court also did not find the agency’s interpretation persuasive, finding that the term “whichever occurs first” appears nowhere in the statute, and simply does not make sense given that the statute specifically provides employers a choice of two separate timeframes to issue wage statements: 1) “semimonthly” or 2)“at the time of each payment of wages.” The Canales decision is certainly one where common sense prevailed. Keep it in mind next time next time you have the final pay, but not the wage statement, ready at the time of termination.