Coverage of New Salary Posting Laws - How Broad?
California and Washington Regulators Take an Expansive View
On January 1, 2023, California and Washington State joined Colorado in requiring salary ranges to be included in job posts. Employers with no offices or employees in these states might think they are off the hook from complying, but that would be at odds with the views of the regulators.
In a "Frequently Asked Questions" document, the California Department of Industrial Relations states:
As of January 1, 2023, an employer with 15 or more employees must include the pay scale for a position in any job posting. If an employer with 15 or more employees engages a third party to announce, post, publish, or otherwise make known a job posting it must provide the pay scale to the third party and the third party must include it within the job posting. The Labor Commissioner interprets this to mean that the pay scale must be included within the job posting if the position may ever be filled in California, either in-person or remotely.
First, note the requirement for employers to give salary data to third parties posting the employer's jobs. That would include staffing and recruiting agencies. The document then goes on take the position that salaries must be posted even if the job is not in California but could theoretically be filled remotely by a California individual. In other words, all job postings for work that can be performed remotely are covered according to the Commissioner. There is a caveat, however. This would be the case only if the state has legal jurisdiction over the posting employer. If the employer has absolutely no business connection with California, the state would presumably have no "personal jurisdiction" over the employer. This raises the question of whether merely recruiting via national Internet postings constitutes "doing business" in the state. The State of Washington apparently thinks so (see below).
In the real world, who has time to sort all this out? That is why there is a growing trend by employers in all states to post their salary ranges, and the staffing/recruiting industry will be obligated to follow. While the salary posting laws do not technically cover pure direct hire recruiting firms, it will be argued by the regulators that the firms are acting on their clients' behalf, thereby potentially rendering the client liable for their non-compliance.
The State of Washington takes much the same approach as California, only goes further by asserting that the mere act of recruiting in Washington is the equivalent of doing business there:
3.2 Engaging in Business in Washington. “Engaging in any business, industry, profession, or activity in Washington,” for the purposes of RCW 49.58.110, includes employers that do not have a physical presence in Washington, but engage in business in Washington or recruit for jobs that could be filled by a Washington-based employee.
Whether or not this would stand up to legal challenge is unknown, but in the opinion of this writer, it does not much matter, because salary range posting will be universal within a few years, if not months.