When you think about potential sources of employment liability, your job posting and solicitation practices might not be front of mind. But with new legislation in Minnesota requiring disclosure of pay in postings beginning on January 1, 2025, and recent high profile discrimination cases related to job postings, it is an important time to review the ways in which you bring in talent to ensure legal compliance.
Effective January 1, 2025, employers of 30 or more employees in Minnesota must disclose compensation details in job postings.
In the 2024 legislative session, the Minnesota legislature passed, and the governor signed, SF 3852. Among other things, SF 3852 creates Minnesota Statutes section 181.173, which requires any “person or entity that employse 30 or more employees at one or more sites in Minnesota” to disclose “the minimum and maximum annual salary or hourly range of compensation” and “a general description of all of the benefits and other compensation . . . to be offered to a hired job applicant” in the job posting, whether the recruitment is done by the employer or a third party. The statute requires a “good faith estimate” of the compensation available, and salary ranges may not be open ended. If an employer does not intend to list a pay range, the employer may list a fixed pay rate.
No later than January 1, 2025, employers of 30 or more employees need to comply with section 181.173, or risk enforcement action by the Department of Labor and Industry or the Attorney General. The language of the statute does not restrict the requirement to postings for jobs within the state of Minnesota; the statute appears to apply to any job posting made by or on behalf of an employer of 30 or more persons in Minnesota. Covered employers who recruit for positions working outside of Minnesota may wish to seek further legal advice on the applicability of section 181.173 to postings for work performed outside of Minnesota. It is important to note as well that Minnesota’s law goes further than that of other states with similar requirements, in that Minnesota requires employers to post information related to all benefits and other compensation, in addition to pay, including but not limited to any health or retirement benefits. Implementation of this statute will undoubtedly come with some uncertainty and growing pains, not the least of which will be what constitutes a “good faith estimate” of the available compensation. Employers should document their basis for coming up with posted pay ranges, which may include things like the pay rate of people previously or currently holding the position advertised or the amount budgeted for a position. Those details do not need to be included in the job posting but should be retained in case of any state investigation.
Discrimination, and other prohibited acts, are just as illegal in job postings as in other contexts.
It may go without saying for many people, but generally applicable laws, such as prohibitions on discrimination, restrictions on questioning immigration status, et cetera, still apply when you’re doing something as simple as posting a job. In a recent, particularly egregious example, a Virginia based company posted a job advertisement which stated that eligible candidates needed to be “US Born Citizens [white] who are local within 60 miles from Dallas, TX [Don’t share with candidates].” 1The company settled with the Department of Justice in May of 2024, agreeing to pay a civil penalty and train its employees on the requirements of the Immigration and Nationality Act.2 At the risk of stating the obvious, job requirements like that should never be found in a job posting, nor should they exist in any way. However, more innocuous examples may run afoul of the law as well. For example, a job posting which seeks “recent college graduates” may unlawfully show a preference for or discourage someone from applying based on their age.3
To avoid potential liability arising from your job postings, ask yourself: “Would this be a problem if I said this to a current employee or to an applicant in an interview?” If the answer is yes, it probably should not be in your job posting. Keep qualifications objective and avoid any terms which could relate to a protected class. Following your existing anti-discrimination policies in job posting, solicitation, and recruitment should provide adequate protection in those contexts, provided those policies are up to date.
Be aware of industry-specific requirements which may be applicable to you.
Your specific industry may have unique job recruitment and solicitation requirements, which you need to be aware of if you have a role in bringing employees into your organization. If you are unsure about any of these requirements, you should consult with your attorney to ensure compliance.
One example of an industry-specific recruitment requirement in Minnesota applies to migrant seasonal agricultural labor. Whenever an employer “induce[s] an individual” over the age of 17 to travel “more than 100 miles to Minnesota from some other state” to perform seasonal agricultural labor “by an offer of employment or of the possibility of employment,” the employer must provide the individual with an employment statement in English and the worker’s preferred language, listing a variety of information related to the terms of employment.4 This requirement was recently updated in 2023 from applying only to cannery workers, to apply to all recruited migrant agricultural workers. The employment statement must list the date and place at which the statement was completed and provided to the migrant worker, suggesting that the information cannot be provided as part of a job posting, but it also seems possible that a job posting could “induce” someone to travel to Minnesota based on an offer of the possibility of employment. Employers who engage in recruiting migrant agricultural workers should consult with their attorney to ensure that they are in compliance with this recent development in Minnesota Law. In addition, employers who utilize third-party recruiters should inquire as to the recruiter’s practices in order to avoid potential liability.
As with many things, there are exceptions to the rule, which may vary your requirements when it comes to complying with the laws applicable to job postings and solicitations. For example, you may have bona fide occupational qualifications which may transform what would otherwise be unlawful discrimination into a lawful requirement of employment. Employers who find themselves dealing with such exceptions should carefully document the reasons for such qualifications, thoroughly consider whether or not the qualifications are actually necessary or merely represent a preference, and engage legal counsel.
Conclusion.
Job postings and solicitations can give rise to liability for employers, just as many other day-to-day operations. For the most part, following existing policies will keep you on the right side of the law, when it comes to avoiding liability for things like discrimination. However, the state of Minnesota has recently focused more on the recruiting and solicitation process with things like the new requirement to post compensation information and the 2023 expansion of disclosures to recruited migrant agricultural workers, meaning employers need to pay additional attention to their recruitment and solicitation policies and procedures to remain in compliance with all facets of the applicable law.
1 Jon Haworth, Company That Posted Discriminatory ‘Whites Only’ Job Ad Settles With Federal Government, ABC NEWS, May 28, 2024, 4:19 AM, https://abcnews.go.com/US/company-posted-discriminatory-whites-job-ad-settles-federal/story?id=110601691″.
2 Id.
3 See Prohibited Employment Policies/Practices, UNITED STATES EQUAL EMP. OPP. COMM’N, https://www.eeoc.gov/prohibited-employment-policiespractices (last visited July 8, 2024).
4 Minn. Stat. §§ 181.85, 181.86.