Lawyers: Fix Job Levels Before Posting Pay Ranges
Pay transparency rules have turned compensation into something employers must be able to defend. At a legal conference in Washington, lawyers told HR teams to prepare before the next posting goes live.
A decade after the pay equity push
The session took place at the American Bar Association's 2026 Labor & Employment Law Conference. It was titled "Pay Equity in Practice: Collaborative Strategies for Closing the Gap." Panelists said pay equity is far more than a compliance issue.
Jenny Yang, a former chair of the U.S. Equal Employment Opportunity Commission and now a partner at Outten & Golden, set the scene. She pointed to 2016, when deodorant commercials showed women preparing to ask for raises and some companies advertised themselves as equal-pay employers during the Super Bowl. In her words, the topic moved from a litigation issue to part of the national dialogue.
That year, California's Fair Pay Act took effect. Passed in 2015, it widened the state's ban on sex-based wage gaps. The test became "substantially similar work," and the old "same establishment" limit on work location was dropped.
Employers worried then, and many still do
When the California law arrived, business-minded commentators lamented the effect the law would have on employers. One law firm blog said employers might have to defend pay gaps by pointing to operational needs that are hard to quantify. An insurance firm's guidance said the law could force companies to restructure their pay systems entirely.
The worry did not fade. Many states passed salary transparency and salary history laws in the 2020s, and the European Union's Pay Transparency Directive added pressure on multinationals. An October 2024 report found that nearly half of the employers running large operations in Europe worried about how the directive would affect their company. A 2025 global report found about 1 in 5 organizations ready for mandated transparency and about 3 in 5 still getting ready.
The panel's answer was that being forced to build a defensible pay structure is the point of the laws. Stephen Malone, interim counsel for Thermo Fisher Scientific, said transparency laws have produced more in-house discipline. Pay audits, he said, used to be retroactive and one-and-done, often run in response to litigation.
Job architecture comes first
Yang said Colorado was the first state to require pay ranges in job postings. Seventeen states plus Washington, D.C. now have similar laws. She noted a side effect: a posted range can tell current staff that they might be underpaid. Companies, she said, should assess job architecture and pay ranges before they post.
Toni Locklear, an industrial psychologist and litigation practice leader at APTMetrics, spoke at length about job architecture as a core HR practice. Malone urged employers to work with outside consultants and to take a proactive approach, laying out the structure up front.
That means job leveling: sorting out job titles and what is expected at each level. It also means mapping promotion ladders. Malone called this necessary before salary ranges go into job descriptions.
The panel also included Erin Connell of Orrick, Herrington & Sutcliffe and Erin Drake of the Women's National Basketball Players Association.
Source: HR Dive