Pay Equity Bulletin
April 10, 2023
Pay Equity Bulletin: Spring 2023
This winter brought significant developments in pay equity matters. March 14 marked Equal Pay Day for women, which should serve as a reminder for employers to conduct pay equity assessments on a regular basis in order to avoid enforcement actions and legal claims related to unequal pay.
In addition, a number of states implemented or passed laws requiring the disclosure of pay ranges in job postings that will cover any employer posting positions for remote work that can be performed in those states.
U.S. Marks Equal Pay Day
Tuesday, March 14 was Equal Pay Day for 2023. Equal Pay Day is not attached to a particular date but instead marks the day each year that women catch up to the earnings of men for the prior year. Women on average still earn only 84 cents on each dollar a man earns, and the figure is significantly worse for many minority women. Equal Pay Day should serve as a yearly reminder to employers to assess their pay practices for discrimination. Employers that assess their compensation structure through pay equity audits are less likely to attract enforcement actions and costly litigation.
While the federal government took no significant action on Equal Pay Day to advance pay equity, statements from leadership in the Biden administration emphasize that the administration remains ready and willing to bring enforcement actions against employers with discriminatory pay practices. On Equal Pay Day, Charlotte Burrows, Chair of the Equal Employment Opportunity Commission (EEOC), issued a statement touting the accomplishments made towards equal pay since Equal Pay Day was instituted in 1996, when the event came a month later. But Chair Burrows cautioned that “[w]hile we have gradually chipped away at the gender pay gap, we still have significant work to do.” President Biden marked the day by issuing a Proclamation calling on Congress to pass the Paycheck Fairness Act, which would make it more difficult for employers to defend pay disparities in legal proceedings and would make it largely unlawful for employers to make decisions about compensation for new employees based on past compensation history.
The Acting Secretary of Labor, Julie Su, also issued press release noting what DOL is doing to close the pay gap and specifically noting OFCCP’s issuance of a fact sheet on proactive approaches to pay equity. Former OFCCP Director Jenny Yang posted on the DOL blog, Recommitting to Pay Equity on Equal Pay Day, in which she outlined how to improve pay equity, concluding that “[p]ay equity benefits all workers and the economy.”
Woman do not just lag behind men in compensation. According to a U.S. Government Accountability Office report released on Equal Pay Day, they are also underrepresented in management positions. Moreover, women compromise only 10% of the CEOs of Fortune 500 companies.
Remote Workers Covered by New Pay Range Disclosure Laws
This winter there have been significant developments regarding pay transparency laws across the country. New York State enacted a law requiring disclosure of pay ranges in job advertisements and California and Washington State issued much needed guidance for employers seeking to comply with similar laws that went into effect in those states on January 1. Employers should be paying attention to these laws regardless of whether they have worksites New York, California, or Washington because postings for remote work in those states will be covered.
- On December 21, 2022, New York Governor Kathy Hochul signed into law a bill requiring employers with four or more employees to include wage or salary ranges in all advertisements for hire, promotion, or transfer. The law would apply to all jobs “that can or will be performed, at least in part, in the State of New York.” The law extends to remote workers located in New York and is set to go into effect on September 17, 2023.
- Also in December, California and Washington State released guidance to assist employers in complying with their laws requiring disclosure of pay ranges in job postings. According to the guidance documents, both laws will cover postings for positions that can be performed remotely within those states.
- Washington State’s pay range disclosure law requires every job posting to include a wage scale or salary range, a description of available benefits, and an explanation of any other compensation offered. The Washington guidance lays out strict requirements for what information about benefits and other types of compensation must be included in the job posting, making Washington’s law arguably the most strenuous in the nation from a compliance perspective.
- The California guidance does not require employers to disclose benefits or other forms of compensation.
Employers across the country offering remote work in any of these states should be reviewing the requirements of the new laws even if they do not have operations in California, New York or Washington State because any remote positions will fall under the jurisdiction of those laws. Moreover, Colorado was the first to pass a law requiring disclosure of pay ranges in job postings and its law covers remote workers located in the state as well. Not to mention there are numerous municipalities and localities that passed similar laws, such as New York City and Jersey City, NJ, some of which may cover remote workers. Employers should not assume their job postings are free from coverage.
Federal policies under the Trump Administration are reshaping workplaces nationwide. Employers must stay ahead of evolving laws and shifting EEOC priorities. Join FortneyScott attorneys on Thursday, September 18 th at noon EDT to learn the key steps organizations should take now to ensure compliance with EEO laws influenced by these broader policy changes. Key Topics to be Covered Include: Status of the Commission and what to expect once there is a restored quorum; Current EEOC priorities , including protecting religious liberties, eliminating unlawful DEI, and reshaping sex discrimination; Notable EEOC enforcement actions, updates, and emerging trends; and Actionable strategies and key takeaways to ensure compliance with Title VII, the PWFA, etc. This webinar is the first in a four-part series designed for compliance professionals, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance. To register for FortneyScott’s Workplace Legal Compliance training series, please click here .
During the first months of the Trump Administration employers have faced unprecedented challenges in understanding and keeping up with the rapidly changing legal environment. To assist our clients in successfully navigating these challenges, FortneyScott is initiating a four-month, complimentary training program addressing Workplace Legal Compliance. These new, original trainings will occur during September through December, 2025 and will include 4 monthly webinars, at least 4 podcasts of DC Insider—Employer Update and timely alerts as developments unfold. The trainings are designed to provide substantive updates and to assist employers in addressing the latest developments as part of their organization’s comprehensive workplace legal compliance program. How to Participate : Register now for the FortneyScott Workplace Legal Compliance webinars, podcast notifications and alerts: Register for all 4 webinars (September 18, October 23, November 20 and December 18). Register for notifications of new podcast episodes of DC Insider—Employer Update. Register for Workplace Legal Compliance alerts and updates. If you have an immediate questions or feedback, please contact any of the FortneyScott attorneys or email info@fortneyscott.com . Additional Background : Workplace legal compliance is essential for mitigating risk, protecting employees, and fostering a positive and reputable company culture. Adhering to federal, state, and local laws concerning labor, safety, and discrimination prevents costly penalties, lawsuits, and operational disruptions. Beyond simply avoiding legal and financial consequences, compliance builds trust with employees and other stakeholders by demonstrating a commitment to ethical conduct. This creates a fair and safe work environment that boosts employee morale, increases retention, and enhances overall productivity. By proactively managing legal responsibilities, an organization strengthens its reputation and brand image, which in turn can attract top talent and create a competitive advantage in the marketplace. FortneyScott’s Workplace Legal Compliance supports employers in meeting these objectives. Ultimately, legal compliance is not only a regulatory obligation – it is a strategic investment in the long-term success and integrity of your organization.
We are pleased to announce that FortneyScott attorney David Fortney has been recognized as one of The Best Lawyers in America for 2026, in recognition of outstanding achievement and contributions to the field of Labor and Employment law. This marks a continuation of his recognition in The Best Lawyers in America since 2008, reflecting a sustained commitment to excellence, innovation, and leadership. It underscores the impact of his work within the professional community. We extend our congratulations on this well-deserved recognition.
The U.S. Department of Justice (DOJ), Civil Division is sending Civil Investigative Demands (CIDs) to federal contractors seeking information on their DEI practices, under its authority to investigate False Claims Act (FCA) claims. Flowing from President Trump’s Executive Order 14173, which seeks to limit DEI efforts, the DOJ recently launched the Civil Rights Fraud Initiative, which utilizes the FCA to investigate and pursue claims against recipients of federal funds (including federal contractors) that their DEI practices violate federal civil rights laws. The focus of these investigations will likely be: Discriminatory preferences/goals: DEI programs that assign benefits or burdens based on race, ethnicity, or national origin. Use of proxies to mask discrimination: Practices using criteria like "cultural competence" or "lived experience" as proxies for protected characteristics in hiring or promotion decisions. Segregation in the workplace: Limiting membership in affinity groups or separating employees by protected characteristics during training. Discriminatory training programs: DEI training that promotes stereotypes, excludes individuals based on protected characteristics, or creates a hostile environment. Failure to protect against antisemitism: Institutions accepting federal funds that do not adequately address antisemitism or other civil rights violations. Organizations found to be in violation of the FCA can face significant penalties, including treble damages (three times the amount of damages incurred by the government), civil penalties for each false claim, and reputational harm. As a result, all federal contractors and grant recipients should be on high alert for any communication from DOJ and should immediately notify internal counsel if any such communication is received. Please contact your FortneyScott attorney or email us at info@fortneyscott.com for additional information on how to be prepared and to respond to these DOJ investigations and other best practices recommendations.
As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys for an in-depth webinar covering what these changes may mean for your organization. Key Topics to be Covered Include: New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling. Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS. Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance. Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks. Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations. Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau. Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure.
As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys on Thursday, August 14th at noon EDT for an in-depth webinar covering what these changes may mean for your organization. CLICK HERE to register. Key Topics to be Covered Include: New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling. Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS. Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance. Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks. Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations. Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau. Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure. Who Should Attend: Compliance professionals, in-house counsel, HR and inclusion leaders, and anyone with responsibility for compliance with labor and employment laws.
Federal policies under the Trump Administration are reshaping workplaces nationwide. Employers must stay ahead of evolving laws and shifting EEOC priorities. Join FortneyScott attorneys on Thursday, September 18 th at noon EDT to learn the key steps organizations should take now to ensure compliance with EEO laws influenced by these broader policy changes. Key Topics to be Covered Include: Status of the Commission and what to expect once there is a restored quorum; Current EEOC priorities , including protecting religious liberties, eliminating unlawful DEI, and reshaping sex discrimination; Notable EEOC enforcement actions, updates, and emerging trends; and Actionable strategies and key takeaways to ensure compliance with Title VII, the PWFA, etc. This webinar is the first in a four-part series designed for compliance professionals, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance. To register for FortneyScott’s Workplace Legal Compliance training series, please click here .
During the first months of the Trump Administration employers have faced unprecedented challenges in understanding and keeping up with the rapidly changing legal environment. To assist our clients in successfully navigating these challenges, FortneyScott is initiating a four-month, complimentary training program addressing Workplace Legal Compliance. These new, original trainings will occur during September through December, 2025 and will include 4 monthly webinars, at least 4 podcasts of DC Insider—Employer Update and timely alerts as developments unfold. The trainings are designed to provide substantive updates and to assist employers in addressing the latest developments as part of their organization’s comprehensive workplace legal compliance program. How to Participate : Register now for the FortneyScott Workplace Legal Compliance webinars, podcast notifications and alerts: Register for all 4 webinars (September 18, October 23, November 20 and December 18). Register for notifications of new podcast episodes of DC Insider—Employer Update. Register for Workplace Legal Compliance alerts and updates. If you have an immediate questions or feedback, please contact any of the FortneyScott attorneys or email info@fortneyscott.com . Additional Background : Workplace legal compliance is essential for mitigating risk, protecting employees, and fostering a positive and reputable company culture. Adhering to federal, state, and local laws concerning labor, safety, and discrimination prevents costly penalties, lawsuits, and operational disruptions. Beyond simply avoiding legal and financial consequences, compliance builds trust with employees and other stakeholders by demonstrating a commitment to ethical conduct. This creates a fair and safe work environment that boosts employee morale, increases retention, and enhances overall productivity. By proactively managing legal responsibilities, an organization strengthens its reputation and brand image, which in turn can attract top talent and create a competitive advantage in the marketplace. FortneyScott’s Workplace Legal Compliance supports employers in meeting these objectives. Ultimately, legal compliance is not only a regulatory obligation – it is a strategic investment in the long-term success and integrity of your organization.
We are pleased to announce that FortneyScott attorney David Fortney has been recognized as one of The Best Lawyers in America for 2026, in recognition of outstanding achievement and contributions to the field of Labor and Employment law. This marks a continuation of his recognition in The Best Lawyers in America since 2008, reflecting a sustained commitment to excellence, innovation, and leadership. It underscores the impact of his work within the professional community. We extend our congratulations on this well-deserved recognition.
The U.S. Department of Justice (DOJ), Civil Division is sending Civil Investigative Demands (CIDs) to federal contractors seeking information on their DEI practices, under its authority to investigate False Claims Act (FCA) claims. Flowing from President Trump’s Executive Order 14173, which seeks to limit DEI efforts, the DOJ recently launched the Civil Rights Fraud Initiative, which utilizes the FCA to investigate and pursue claims against recipients of federal funds (including federal contractors) that their DEI practices violate federal civil rights laws. The focus of these investigations will likely be: Discriminatory preferences/goals: DEI programs that assign benefits or burdens based on race, ethnicity, or national origin. Use of proxies to mask discrimination: Practices using criteria like "cultural competence" or "lived experience" as proxies for protected characteristics in hiring or promotion decisions. Segregation in the workplace: Limiting membership in affinity groups or separating employees by protected characteristics during training. Discriminatory training programs: DEI training that promotes stereotypes, excludes individuals based on protected characteristics, or creates a hostile environment. Failure to protect against antisemitism: Institutions accepting federal funds that do not adequately address antisemitism or other civil rights violations. Organizations found to be in violation of the FCA can face significant penalties, including treble damages (three times the amount of damages incurred by the government), civil penalties for each false claim, and reputational harm. As a result, all federal contractors and grant recipients should be on high alert for any communication from DOJ and should immediately notify internal counsel if any such communication is received. Please contact your FortneyScott attorney or email us at info@fortneyscott.com for additional information on how to be prepared and to respond to these DOJ investigations and other best practices recommendations.
As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys for an in-depth webinar covering what these changes may mean for your organization. Key Topics to be Covered Include: New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling. Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS. Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance. Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks. Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations. Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau. Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure.
As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys on Thursday, August 14th at noon EDT for an in-depth webinar covering what these changes may mean for your organization. CLICK HERE to register. Key Topics to be Covered Include: New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling. Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS. Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance. Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks. Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations. Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau. Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure. Who Should Attend: Compliance professionals, in-house counsel, HR and inclusion leaders, and anyone with responsibility for compliance with labor and employment laws.
On July 30, 2025, the U.S. Court of Appeals for the Ninth Circuit in a panel decision affirmed the District Court’s Order in Center for Investigative Reporting v. DOL compelling the DOL to disclose federal contractors’ EEO-1 reports in response to a Freedom of Information Act (“FOIA”) request. The underlying FOIA request was sent to the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) in 2022 seeking consolidated EEO-1 reports for all federal contractors filed between 2016 and 2020. DOL disclosed the EEO-1 report of non-objecting contractors but withheld from disclosure 16,755 EEO reports from 4,141 objection contractors. In its Opinion, the Ninth Circuit affirmed the District Order’s finding that EEO-1 reports are not exempt from disclosure under FOIA Exemption 4, which protects trade secrets and confidential commercial or financial information. Specifically, the Ninth Circuit found that EEO-1 report data is not “commercial” because workforce-compensation data is not designed to be bought and sold, nor does it reveal basic commercial operations, such as sales statistics, profits and losses, or inventories. The Court held that DOL failed to establish that EEO-1 reports describe an exchange of goods or services or the making of a profit. While the Ninth Circuit Order is limited to compelling the release of 2016-2020 reports in response to CIR’s FOIA request, DOL also relied on Exemption 4 to withhold the production of federal contractors’ 2021 consolidated EEO-1 reports in response to FOIA requests issued by the University of Utah and As You Sow. DOL has not issued a comment, and it is not known at this time whether the DOL will appeal this determination. FortneyScott will continue to monitor this and related cases.
On July 23, 2025, the Trump Administration issued America’s AI Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure and jobs, and for developing new criteria to address misinformation, including specifically identifying DEI. Join FortneyScott for a discussion on the employment-law related key provisions of America’s AI Action Plan and how they may impact the workforce.
On July 23, 2025, the Trump Administration issued America’s AI Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure and jobs, and for developing new criteria to address misinformation, including specifically identifying DEI. Join FortneyScott lawyers on Thursday, July 31, 2025, at 12:00 PM ET for a discussion of the employment-law related key provisions of America’s AI Action Plan and how they may impact the workforce. Please click here to register.
The U.S. Department of Labor (DOL) today announced several programs designed to help employers, as well as unions and pension plans, voluntarily assess and improve their compliance with federal labor laws. “Self-audits are one of the most effective ways to build a culture of compliance and trust,” said Deputy Secretary of Labor Keith Sonderling. “These programs are designed to give employers … the tools they need to correct potential violations proactively.” Of particular interest for employer compliance, the self-audit programs include: minimum wage and overtime under the Fair Labor Standards Act (FLSA) and benefits under the Family and Medical Leave Act (FMLA) (Payroll Audit Independent Determination (PAID)) ; protected veterans’ rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) (SALUTE - Support and Assistance for Leaders in USERRA Training and Employment) ; and, safety and health programs (Voluntary Protection Programs) . For employers dealing with Wage & Hour issues, the Payroll Audit Independent Determination (PAID) established in the prior Trump Administration for resolution of FLSA and FMLA compliance matters has been reinstituted. By using the PAID program, the audit results that are approved by DOL can provide significant protection against collective and class overtime claims for employers. FortneyScott has extensive experience in advising clients on self-audits that are overseen by DOL. Please contact your FortneyScott attorney for more information about these new compliance opportunities.
