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The state and local laws restricting the use of

compensation history in pay-setting and

employment decisions are commonly referred to as

‘‘salary history bans.’’ When referring to those laws

and the studies analyzing their effects, the terms

‘‘salary history’’ and ‘‘compensation history’’ may

be used interchangeably. For this rulemaking,

‘‘compensation history’’ means the compensation

an applicant is currently receiving or the

compensation the applicant has been paid in a

previous job, where ‘‘compensation’’ is defined as

‘‘any payments made to, or on behalf of, an

employee or offered to an applicant as

remuneration for employment, including but not

limited to salary, wages, overtime pay, shift

differentials, bonuses, commissions, vacation and

holiday pay, allowances, insurance and other

benefits, stock options and awards, profit sharing,

and retirement.’’

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

OFFICE OF FEDERAL PROCUREMENT

POLICY

48 CFR Parts 1, 2, 12, 22, and 52

[FAR Case 2023–021; Docket No. FAR–

2023–0021; Sequence No. 1]

RIN 9000–AO69

Office of Federal Procurement Policy;

Federal Acquisition Regulation: Pay

Equity and Transparency in Federal

Contracting

AGENCY

: Department of Defense (DoD),

General Services Administration (GSA),

National Aeronautics and Space

Administration (NASA), and Office of

Federal Procurement Policy (OFPP).

ACTION

: Proposed rule.

SUMMARY

: DoD, GSA, and NASA are

proposing to amend the Federal

Acquisition Regulation (FAR) to

implement a proposed Governmentwide

policy developed by the Administrator

for Federal Procurement Policy (OFPP

Administrator), pursuant to the

Administrator’s authority that would

prohibit contractors and subcontractors

from seeking and considering

information about job applicants’

compensation history when making

employment decisions for certain

positions. Under the proposed policy

and the proposed regulatory

amendments, contractors and

subcontractors would also be required

to disclose the compensation to be

offered to the hired applicant in job

announcements for certain positions.

DATES

: Interested parties should submit

written comments to the Regulatory

Secretariat Division at the address

shown below on or before April 1, 2024

to be considered in the formation of the

final rule.

ADDRESSES

: Submit comments in

response to FAR Case 2023–021 to the

Federal eRulemaking portal at https://

www.regulations.gov by searching for

‘‘FAR Case 2023–021’’. Select the link

‘‘Comment Now’’ that corresponds with

‘‘FAR Case 2023–021’’. Follow the

instructions provided on the ‘‘Comment

Now’’ screen. Please include your name,

company name (if any), and ‘‘FAR Case

2023–021’’ on your attached document.

If your comment cannot be submitted

using https://www.regulations.gov, call

or email the point of contact in the

FOR

FURTHER INFORMATION CONTACT

section of

this document for alternate instructions.

Instructions: Please submit comments

only and cite ‘‘FAR Case 2023–021’’ in

all correspondence related to this case.

Comments received generally will be

posted without change to https://

www.regulations.gov, including any

personal and/or business confidential

information provided. Public comments

may be submitted as an individual, as

an organization, or anonymously (see

frequently asked questions at https://

www.regulations.gov/faq). To confirm

receipt of your comment(s), please

check https://www.regulations.gov,

approximately two to three days after

submission to verify posting.

FOR FURTHER INFORMATION CONTACT

: For

clarification of content, contact Ms.

Mahruba Uddowla, Procurement

Analyst, at 703–605–2868 or by email at

[email protected]. For

information pertaining to status,

publication schedules, or alternate

instructions for submitting comments if

https://www.regulations.gov cannot be

used, contact the Regulatory Secretariat

Division at 202–501–4755 or

[email protected]. Please cite FAR

Case 2023–021.

SUPPLEMENTARY INFORMATION

I. Proposed Policy of the OFPP

Administrator

Pursuant to 41 U.S.C. 1121(b), the

Senior Advisor, Office of Federal

Procurement Policy (OFPP), performing

by delegation the duties of the

Administrator for Federal Procurement

Policy, is proposing a Government-wide

procurement policy that would:

(1) prohibit contractors and

subcontractors from seeking and

considering information about job

applicants’ compensation history when

making employment decisions about

personnel working on or in connection

with a government contract; and

(2) require contractors and

subcontractors to disclose, in all

advertisements for job openings

involving work on or in connection with

a government contract placed by or on

behalf of the contractor or

subcontractor, the compensation to be

offered to the hired applicant, for any

position to perform work on or in

connection with the contract.

The Administrator is proposing this

policy based on her determination,

described in more detail in section IV

below, that compensation history bans

and compensation disclosure

requirements (the latter are also

collectively referred to as pay

transparency), both together and

separately, would promote economy,

efficiency, and effectiveness in the

procurement of property and services by

the Federal Government. Compensation

history bans and pay transparency

requirements have been shown to

promote pay equity by closing pay gaps,

which leads to increased worker

satisfaction, better job performance, and

overall increased worker productivity-

all factors associated with promoting

economy, efficiency, and effectiveness

of the Federal contractor workforce.

When workers feel that they are valued

and their pay is fair, it can foster a

higher level of commitment to an

employer associated with better job

performance and increased

productivity. Compensation history

bans

have been found to reduce pay

gaps that have been shown to

disadvantage certain populations,

including women, workers of color, and

workers entering the labor market

during recessions. Similar to

compensation history bans,

compensation disclosure requirements

reduce gender, racial and ethnic pay

gaps by reducing pay secrecy and

helping workers negotiate. Pay

transparency requirements also promote

economy, efficiency, and effectiveness

in recruitment and retention. By

disclosing the compensation upfront,

employers can effectively lower

recruiting costs, both in terms of direct

expenses, such as job advertising costs,

and indirect expenses, such as those

related to the selection and negotiation

process. In addition to pay equity,

compensation history bans and

compensation disclosure requirements

can help companies attract and retain

better talent and lower worker turnover.

These practices demonstrate a

commitment to fairness for all workers

and increase hiring efficiencies and

reduce the costs for employers to hire

new workers for Federal contracts. A

fuller discussion of how the proposed

policy would further economy,

efficiency and effectiveness in Federal

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procurement may be found in section IV

below.

This proposed policy also accords

with Executive Order (E.O.) 14069 of

March 15, 2022, titled ‘‘Advancing

Economy, Efficiency, and Effectiveness

in Federal Contracting by Promoting Pay

Equity and Transparency.’’ E.O. 14069

established an administration policy of

eliminating discriminatory pay practices

that inhibit the economy, efficiency, and

effectiveness of the Federal workforce

and the procurement of property and

services by the Federal Government;

highlighted regulatory efforts by the

Office of Personnel Management to

address the use of salary history in

hiring and pay-setting processes for

Federal employees (see Office of

Personnel Management, Proposed Rule,

Advancing Pay Equity in

Governmentwide Pay Systems, 88 FR

30251 (May 11, 2023), https://

www.govinfo.gov/content/pkg/FR-2023-

05-11/pdf/2023-09564.pdf); and

directed the Federal Acquisition

Regulatory Council (FAR Council), in

consultation with the Secretary of Labor

and other agency heads as appropriate,

to consider issuing proposed rules to

advance economy, efficiency, and

effectiveness in Federal procurement by

promoting pay equity and transparency

for job applicants and employees of

Federal contractors and subcontractors.

Pursuant to 41 U.S.C. 1121(b), the OFPP

Administrator proposes these pay equity

policies to be implemented in the FAR

through rulemaking. See 41 U.S.C.

1121(b), 1303. The OFPP Administrator

invites public comment on this

proposed policy and the analysis

supporting it, which is set forth in

section IV below.

II. Proposed FAR Rule: Discussion and

Analysis

To implement the OFPP

Administrator’s proposed policy, which

is reinforced by E.O. 14069, DoD, GSA,

and NASA are proposing to amend the

FAR to limit or prohibit contractors and

subcontractors from seeking and

considering information about job

applicants’ compensation history when

making employment decisions on

certain positions and to require

contractors and subcontractors to

disclose the compensation to be offered

to the hired applicant in job

announcements for certain positions.

The proposed rule would establish a

new FAR subpart 22.XX entitled

‘‘Prohibition On Compensation History

Inquiries and Requirement For

Compensation Disclosures By

Contractors’’ to incorporate the

proposed policy of the OFPP

Administrator described in section I. A

summary of the proposed changes

follows:

A. FAR Part 1

FAR 1.106, OMB approval under the

Paperwork Reduction Act, will include

the OMB control number associated

with the notification of rights to job

applicants, the compensation

disclosures, and the complaints process.

B. FAR Part 2

FAR 2.101, Definitions, has a

conforming change to the clause

prescription in the new subpart,

showing ‘‘United States’’ will include

outlying areas (e.g., territories).

C. FAR Part 12

FAR 12.301(d)(11) is added to clarify

that use of the new clause is required for

acquisitions of commercial products

and commercial services.

D. FAR Part 22

This new subpart at FAR 22.XX

communicates the policy that

contractors and subcontractors are

prohibited from seeking and considering

information about job applicants’

compensation history when making

employment decisions on certain

positions. The prohibition would apply

to the recruitment and hiring for any

position to perform work on or in

connection with the contract, and

applicants are to be provided with

notice of this requirement as either part

of the job announcement or application

process. In addition, the proposed new

subpart must communicate the policy

that contractors and subcontractors are

required to disclose in all

advertisements for job openings placed

by or on behalf of the contractor or

subcontractor, for any position to

perform work on or in connection with

the contract, the compensation thereof

to be offered to the hired applicant.

The new subpart contains the

prescription for a new clause at FAR

52.222–ZZ entitled ‘‘Prohibition on

Compensation History Inquiries and

Requirement for Compensation

Disclosures by Contractors During

Recruitment and Hiring’’, and proposed

to be included in all solicitations and

contracts, where the principal place of

performance will be in the United

States, which is defined as including its

outlying areas.

The proposed policy provides that an

applicant for a position covered by the

proposed policy may submit a

complaint relating to the contractor’s

noncompliance with the clause to a

central collection point of the agency

that issued the solicitation or awarded

the contract or order. The complaint

must be submitted within 180 days of

the date the violation occurred. The

FAR text provides a link to where the

list of agency central collection points is

posted. The proposed rule states that the

contracting agency will review the

complaint, consult with the

complainant as necessary to confirm the

complainant is a covered applicant, and

take action as appropriate. The subpart

reiterates that complaints alleging

discrimination prohibited by E.O.

11246, Section 503 of the Rehabilitation

Act of 1973, and the Vietnam Era

Veterans’ Readjustment Assistance Act

by the contractor or subcontractor

should be submitted directly to the

Department of Labor’s Office of Federal

Contract Compliance Programs

(OFCCP). If complaints alleging

discrimination are submitted to an

agency central collection point rather

than directly with OFCCP, the

complaints will be forwarded to OFCCP.

E. FAR Part 52

FAR clauses 52.213–4, Terms and

Conditions—Simplified Acquisitions

(Other Than Commercial Products and

Commercial Services) and 52.244–6,

Subcontracts for Commercial Products

and Commercial Services, are revised to

reflect the application of the new policy

to both prime contracts and

subcontracts for commercial products

and commercial services and both prime

contracts and subcontracts under the

simplified acquisition threshold (see

Section III of this preamble).

New FAR clause 52.222–ZZ entitled

‘‘Prohibition on Compensation History

Inquiries and Requirement for

Compensation Disclosures by

Contractors During Recruitment and

Hiring’’ is added to FAR part 52. With

regard to compensation history, the

clause prohibits contractors from

seeking an applicant’s compensation

history either directly or indirectly,

from requiring disclosure of

compensation history as a condition of

an applicant’s candidacy, and from

retaliating against any applicant for

failing to respond to an inquiry

regarding their compensation history.

The clause also prohibits contractors

from relying on an applicant’s

compensation history, even if an

applicant for employment volunteers

their compensation history without

prompting at any stage in the selection

process.

With regard to compensation

disclosure, the clause requires

contractors to, in solicitations or

advertisements for job openings placed

by or on behalf of the contractor for any

position to perform work on or in

connection with the contract, disclose

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HRDive. (Aug 2023). Salary history bans: A

running list of states and localities that have

outlawed pay history questions. Retrieved January

4, 2024 from https://www.hrdive.com/news/salary-

history-ban-states-list/516662/.

Mandel, H., & Semyonov, M. (2014). Gender pay

gap and employment sector: Sources of earnings

disparities in the United States, 1970–2010.

Continued

the compensation to be offered to the

hired applicant. The disclosure must

indicate the salary or wages, or range

thereof, that the contractor in good faith

believes that it will pay for the

advertised position and may reflect, as

applicable, the contractor’s pay scale for

that position, the range of compensation

for those currently working in similar

jobs, or the amount budgeted for the

position. The disclosure must also

include a general description of the

benefits and other forms of

compensation applicable to the job

opportunity. Where at least half of the

expected compensation for the

advertised position is derived from

commissions, bonuses, and/or overtime

pay, the contractor must specify the

percentage of overall compensation or

dollar amount, or ranges thereof, for

each form of compensation, as

applicable, that it in good faith believes

will be paid for the advertised position.

The proposed new clause requires

contractors to provide any applicants

that are covered by the prohibitions and

disclosure requirements in the clause

with a notice of their rights as either

part of the job announcement or

application process. Specific language

for the notice is provided in the clause,

along with a fill-in where the contractor

would inform the applicant of the

agency that issued the solicitation or

awarded the contract so that applicants

know which agency should receive any

complaints of noncompliance.

The clause includes language to

ensure it will flow down the

compensation disclosure requirement

and the prohibition on compensation

history inquiries to all subcontracts at

any tier, to be performed within the

United States including its outlying

areas.

III. Applicability to Contracts at or

Below the Simplified Acquisition

Threshold (SAT) and for Commercial

Products (Including Commercially

Available Off-the-Shelf (COTS) Items)

or for Commercial Services

This rule proposes a new FAR clause

at 52.222–ZZ. The proposed clause is

prescribed at FAR 22.XX04 for use in all

solicitations and contracts. The clause is

applicable to acquisitions at or below

the SAT and to acquisitions for

commercial products and commercial

services, including COTS items.

The benefits of the pay equity and

transparency requirements in this

proposed rule are equally impactful in

commercial and noncommercial settings

as well as to large or small dollar

contracts. For this reason, an increasing

number of states and localities have

imposed requirements similar to those

described in this proposed rulemaking

for sales of any goods or services in any

dollar amount, whether business to

business, business to consumer, or

business to government. Limiting

application would forgo the various

ways in which pay equity promotes

economy, efficiency, and effectiveness.

In addition, because many entities who

sell in those states or localities also sell

in the Federal marketplace, it is

believed that many government

contractors, including small businesses,

already have incorporated these

requirements into their existing human

capital management practices.

Moreover, limiting the application of

the proposed rule could create

unintended confusion and ambiguity for

contractors and prospective employees.

Many contractors who do business with

the government have contracts below

and above the SAT, and provide both

commercial and government unique

products and services. Carve-outs to the

rule could result in contractor

employees performing the same or

similar functions receiving disparate

treatment during hiring and recruiting

for work on or in connection with

government contracts, which would

perpetuate inequity and deprive the

Federal marketplace of economy,

efficiency, and effectiveness in the

procurement of property and services.

The FAR Council will consider public

feedback before making a final

determination on the scope of the final

rule.

IV. Expected Impact on Economy,

Efficiency, and Effectiveness

In implementing the OFPP

Administrator’s proposed policy, this

proposed rule provides that for any

recruitment and hiring for work on or in

connection with a government contract,

the contract would prohibit the

contractor and subcontractor from

seeking an applicant’s compensation

history, requiring disclosure of

compensation history as a condition of

an applicant’s candidacy, or retaliating

against or refusing to interview or

otherwise consider, hire, or employ any

applicant for failing to respond to an

inquiry regarding their compensation

history. Furthermore, the contractor and

subcontractor would be prohibited from

relying on an applicant’s compensation

history as a criterion in screening or

considering the applicant for

employment, or relying on an

applicant’s compensation history in

determining the compensation for such

individual at any stage in the selection

process. These prohibitions are

collectively referred to as a

compensation history ban in this

section.

This rule would also require

contractors and subcontractors to

disclose in all advertisements for job

openings involving work on or in

connection with a government contract

placed by or on behalf of the contractor

or subcontractor, the compensation to

be offered to the hired applicant. This

requirement is referred to as a

compensation disclosure in this section.

The OFPP Administrator has outlined

the results of an analysis of economy,

efficiency and effectiveness regarding

the proposed compensation history bans

and compensation disclosure

requirements in this section. The OFPP

Administrator invites public comments

on existing literature or ongoing

research that may further inform this

analysis.

Expected Benefits

A. Promoting Economy, Efficiency, and

Effectiveness through Compensation

History Bans

State and local governments are

increasingly adopting laws and

regulations that prohibit employers from

requesting compensation history

information from job applicants. A

running list of states and localities that

have outlawed pay history questions

from various employers reveals 22

statewide bans and 22 local bans.

The

OFPP Administrator’s analysis shows

that compensation history bans promote

economy, efficiency and effectiveness in

various ways.

1. Compensation history bans were

found to reduce pay gaps that

disadvantage certain populations,

including women, workers of color and

workers entering the labor market

during recessions. Closing pay gaps

increases job satisfaction, helps attract

and retain staff, and increases

performance, retention, and

productivity. This, in turn, may lead to

improved economy, efficiency and

effectiveness in Government

procurement.

Many employers set pay offers on the

basis of workers’ past pay. This is

problematic because research has

documented the persistence of racial,

ethnic, and gender discrimination in the

labor market that may be reflected in

pay-setting.

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Demography, 51(5), 1597–1618.; Blau, F.D., & Kahn,

L.M. (2017). The gender wage gap: Extent, trends,

and explanations. Journal of economic literature,

55(3), 789–865.; Manduca, R. (2018). Income

inequality and the persistence of racial economic

disparities. Sociological Science, 5, 182–205.

Kular, S., & Gatenby, M. (2019). Performance-

related pay and employee well-being: Investigating

relationships between rewards, pay, satisfaction,

and engagement. Human Resource Management

International Digest, 27(4), 11–14. https://doi.org/

10.1108/HRMID-03-2019-0080.; Rosenfeld, J. (2021).

You’re Paid What You’re Worth. In You’re Paid

What You’re Worth. Harvard University Press.;

Lam, L., Cheng, B.H., Bamberger, P., & Wong, M.-

N. (2022). Research: The unintended consequences

of pay transparency. Harvard Business Review.

https://hbr.org/2022/08/research-the-unintended-

consequences-of-pay-transparency.

Xue, J., Wang, H., Chen, M., Ding, X., & Zhu, M.

(2022). Signifying the relationship between

psychological factors and turnover intension: the

mediating role of work-related stress and

moderating role of job satisfaction. Frontiers in

Psychology, 13, 847948.; Pelly, D. (2023). Worker

well-being and quit intentions: is measuring job

satisfaction enough?. Social Indicators Research,

169(1), 397–441.

Kulik, C.T., & Perera, S. (2016). Help or

hindrance? Work-life practices and women in

management. The Leadership Quarterly, 27(3), 504–

5184.; Li, J., & Nelson, J. (2022). Employee

development and organizational performance: A

review of literature. Journal of Human Resource

Development International, 23(1), 1–14.; Li, J., &

Nelson, J. (2023). Employee turnover and

organizational performance: Testing a hypothesis

using longitudinal data from over 800 similar

workplaces in the United States. Journal of Public

Administration Research and Theory, 18(4), 573–

592.

Kuhn, P., & Yu, L. (2021). How costly is

turnover? Evidence from retail. Journal of Labor

Economics, 39(2), 461–496.

Davis, J., Ouimet, P., & Wang, X. (2022). Hidden

Performance: Salary History Bans and the Gender

Pay Gap. The Review of Corporate Finance Studies,

11(3), 511–553.

Mask, J. (2023). Salary history bans and healing

scars from past recessions. Labor Economics, 84,

102408.

Yagan, Danny (2019). ‘‘Employment hysteresis

from the Great Recession.’’ Journal of Political

Economy, 127.5: 2505–2558.

Huckfeldt, C. (2022). Understanding the

scarring effect of recessions. American Economic

Review, 112(4), 1273–1310.

Sinha, Sourav, Salary History Bans: Strategic

Disclosure by Job Applicants and the Gender Pay

Gap (January 24, 2022). Retrieved January 4, 2024,

from https://ssrn.com/abstract=4025580.

Bessen, James E. and Meng, Chen and Denk,

Erich, Perpetuating Inequality: What Salary History

Bans Reveal About Wages (June 2020). Retrieved

January 4, 2024 from https://ssrn.com/

abstract=3628729.

Hansen, B., & McNichols, D. (2020).

Information and the persistence of the gender wage

gap: Early evidence from California’s salary history

ban (National Bureau of Economic Research

Working Paper No. w27054). Retrieved January 4,

2024 from https://www.nber.org/system/files/

working_papers/w27054/w27054.pdf.

Bessen, J., Denk, E., & Kossuth, J. (2020). Stop

asking job candidates for their salary history.

Harvard Business Review. Retrieved January 4,

2024 from: Stop Asking Job Candidates for Their

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Barach, M.A., & Horton, J.J. (2021). How do

employers use compensation history? Evidence

from a field experiment. Journal of Labor

Economics, 39(1), 193–218.

Closing pay gaps is important to the

economy, efficiency, and effectiveness

of contract performance because it has

been shown to increase the satisfaction,

commitment, and motivation of

employees.

When workers feel that

they are valued and their pay is fair,

they are more likely to be committed to

their employer, which leads to

improved job performance and

enhanced productivity. In contrast,

when employees think they are

underpaid or undervalued, those

perceptions can lead to dissatisfaction.

Worker dissatisfaction is a very strong

predictor of workers’ quit intentions.

Consequently, this leads to higher staff

turnover.

Turnover is costly to

employers, requiring employers to

invest in new searches, hiring, and

training at the same time that they are

losing the contributions of the departed

worker. Kuhn and Yu

estimated the

costs of employee turnover in small

retail sales teams using daily sales data

and an advance notice requirement and

found that turnover has a negative

impact on productivity, especially when

it involves high-performing workers or

workers with longer tenure. Kuhn and

Yu’s study estimated that 10 percent

higher turnover is about as costly as a

0.6 percent wage increase. Thus,

reductions in turnover can improve

Federal contractor and Federal

Government—procurement efficiencies.

A growing body of evidence indicates

that compensation history bans

effectively reduce pay gaps. Davis,

Ouimet and Wang

evaluated

compensation history bans covering all

public sector employees in 36 states.

They found that on average,

compensation history bans lead to a 1.5

percent increase in wages of women

relative to men, though this decrease in

the gender pay gap was driven in part

by overall wage decreases of around 3

percent in the new hire sample. Mask

studied the effect of compensation

history bans on workers who enter the

labor market during recessions. During

a recession, increased competition

forces inexperienced job market entrants

to accept lower wages than those who

start their careers during an economic

boom. This penalty does not reflect

workers’ skills, experiences, or ability to

do their job but simply the misfortune

to enter the labor market during an

economic downturn. In other words,

workers who had the misfortune of

working in areas with larger economic

shocks have worse employment and

wage outcomes years later, unrelated to

their own initial skills or experience.

This effect is referred to as ‘‘scarring,’’

defined as the negative long-term effect

that unemployment has on future labor

market possibilities.

Mask found by

breaking the linkage between past wages

and current offers, compensation history

bans could reduce this scarring effect.

Moreover, Mask found that

compensation history bans increase job

mobility, hourly wages, and weekly

earnings for scarred workers relative to

non-scarred workers, and reduce the gap

in wages caused by scarring.

Several working papers support the

claim as well. For example, Sinha

analyzed the effects of U.S. salary

history bans with the option to

voluntary share information and

showed that these policies narrowed the

gender pay gap significantly by 2

percentage points, driven almost

entirely by an increase in female

earnings. Another working paper by

Bessen, Meng and Denk

found that

following salary history bans, employers

posted wages more often and increased

pay for job changers, particularly for

women (6.2 percent) and non-whites

(5.9 percent). A working paper

published in the NBER Working

Series

showed that the gender

earnings ratio increased by 1 percent in

states with salary history bans, and that

the increase was mainly driven by

workers who switched jobs, especially

women and non-whites.

2. Compensation history bans were

found to increase the pool of applicants

to Federal contractors who might have

relevant skills or experiences but who

otherwise might not apply. Better

aligning hiring and compensation

decisions with workers’ skills and

experiences results in a broader

applicant pool for Federal contractors,

thus increasing efficiencies in federal

procurement.

If workers know that Federal

contractors base hiring and

compensation decisions on workers’

past pay, and in turn, that past pay

reflects arbitrary factors, workers may be

less likely to seek new positions with

Federal contractors because they know

that their past pay may hamper their

ability to secure a job offer or to receive

higher pay. This likely is especially true

for workers disadvantaged by current

hiring and pay-setting practices. In turn,

this effect may limit applicant pools for

Federal contractors, thereby reducing

the availability of workers with relevant

skills and experiences and reducing

Federal contractor productivity.

For instance, a Harvard Business

Review article by Bessen, Denk and

Kossuth

reported that job seekers or

applicants are more likely to apply if

salary history is banned. Barach and

Horton

found that without access to

applicant wage histories, employers

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Agan, A., Cowgill, B., & Gee, L.K. (2020, May).

Do workers comply with salary history bans? a

survey on voluntary disclosure, adverse selection,

and unraveling. In AEA Papers and Proceedings

(Vol. 110, pp. 215–219). 2014 Broadway, Suite 305,

Nashville, TN 37203: American Economic

Association. Retrieved January 4, 2024 from https://

papers.ssrn.com/sol3/papers.cfm?abstract_

id=3522170.

Cowgill, Bo and Agan, Amanda Y. and Gee,

Laura, The Gender Disclosure Gap: Salary History

Bans Unravel When Men Volunteer their Income

(May 9, 2022). Columbia Business School Research

Paper No. 4104743. Retrieved on January 4, 2024

from https://ssrn.com/abstract=4104743.

Sran, G., Vetter, F., & Walsh, M. (2020).

Employer responses to pay history inquiry bans.

Retrieved January 4, 2024 from https://papers.ssrn.

com/sol3/papers.cfm?abstract_id=3587736.

Bessen, J., Denk, E., & Kossuth, J. (2020). Stop

asking job candidates for their salary history.

Harvard Business Review. Retrieved January 4,

2024 from https://hbr.org/2020/07/stop-asking-job-

candidates-for-their-salary-history.

CareerBuilder. (2017, December 7). Nearly

three in four employers affected by a bad hire,

according to a recent CareerBuilder survey.

Retrieved January 24, 2024 from https://press.career

builder.com/2017-12-07-Nearly-Three-in-Four-

Employers-Affected-by-a-Bad-Hire-According-to-a-

Recent-CareerBuilder-Survey.

Lundberg, S.J., & Startz, R. (1983). Private

discrimination and social intervention in

competitive labor markets. American Economic

Review, 73(3), 340–347.; Coate, S., & Loury, G.C.

(1993). Will affirmative-action policies eliminate

negative stereotypes? American Economic Review,

83(5), 1220–1240.

Center for American Progress. (Mar. 9, 2023).

Quick Facts About State Salary Range Transparency

Laws. Retrieved Jan. 8, 2024 from https://www.

americanprogress.org/article/quick-facts-about-

state-salary-range-transparency-laws/#:∼:text=

These%20laws%20create%20

an%20environment,are%20penalized%20

more%20than%20men.

who had salary history bans tend to

consider a wider group of candidates,

invite more candidates in for interviews,

and ask more questions of each

candidate, thus leading to recruiting

more diverse and qualified set of

candidates. Barach and Horton found

that employers evaluated about 7

percent more applicants following a

salary history ban. A strong applicant

pool may lead to efficiencies in

procurement in terms of reduced time-

to-hire and greater possibility of finding

stronger shortlist of candidates.

It is important to note, however, that

the benefit of a large applicant pool

holds true only in the absence of

reliance on voluntary disclosures of

compensation histories, known as

unravelling. In addition to reversing the

benefits outlined in this section,

unravelling can impose disclosure costs

on applicants who must decide whether

or not to voluntarily disclose their

compensation history. Agan et al.

suggest that job candidates also face

different direct costs for disclosing; for

example, an innate feeling of harm or

vulnerability from disclosing. These

costs tend to be higher for some groups.

In Agan et al.’s study, women are more

likely to report discomfort with

disclosing than men and tend to ask for

lower salaries from employers in the

first place. The proposed rule would

prevent contractors from using

voluntarily-disclosed salary histories as

a criterion in screening or considering

the applicant for employment, or relying

on an applicant’s voluntarily-disclosed

compensation history in determining

the compensation for such individual at

any stage in the selection process,

which should will likely prevent

unravelling. A Columbia Business

School research paper

used

information from a survey of the U.S.

labor force to evaluate the connections

between voluntary disclosure, wage

history, and associated bans. In

locations where it is illegal for

employers to request pay history, the

study found that a significant portion of

employees (28 percent) nevertheless

provide it. In addition, the study found

that if enough of the applicant pool for

the position discloses their

compensation history, an additional 47

percent will do so.

3. Compensation history bans expand

the pool of applicants, thereby

facilitating the hiring of more quality

candidates. In turn, hiring quality

candidates reduces the risks of turnover

and leads to overall productivity gains.

By limiting Federal contractors’

ability to make hiring and

compensation-setting decisions based

on workers’ past pay, a compensation

history ban will more closely align

employment decisions with quality

factors relevant for the job, thereby

improving the quality of the contracting

workforce. A working paper by Sran et

al.

studied the effects of pay history

inquiry bans on employers’ pay offers

and hiring practices. They found some

evidence that the number of online job

postings increases and that postings are

more likely to include salary

information after salary history bans.

Another article by Bessen et al.

showed that employers are more likely

to include work experience and other

skill expectations in job postings

following the passage of compensation

history bans, indicating that employers

tend to be more explicit about these job-

relevant characteristics with bans in

place.

Hiring the right employee is crucial to

an organization as it reduces employee

burnout, thereby reducing the risk of

understaffing and turnovers. Hiring an

unqualified candidate can lead to

significant decrease in productivity

within the organization resulting in cost

overruns and schedule disruptions for

Federal contracts. A survey conducted

by CareerBuilder

asked companies

how a bad hire affected their

organization and found that 37 percent

of companies cited less productivity, 32

percent reported lost time in recruiting

and training another worker, and 31

percent experienced compromised

quality of work. The study calculated an

average of $14,900 lost on every bad

hire.

4. Compensation history bans

strengthen incentives for prospective

and current Federal contractor workers

to invest in job-relevant skills and

experiences. Better aligning hiring and

compensation decisions with workers’

skills and experiences incentivizes

workers to invest in relevant skills and

experiences, increasing efficiencies in

Federal procurement.

If workers are aware that Federal

contractors are making pay setting

decisions based on their skills and

experiences, rather than their past pay,

they likely will be motivated to invest

in enhancing their skill sets and gaining

relevant experiences. This investment,

in turn, will better equip them for

employment opportunities within

Federal contractor jobs, increasing the

quality of Federal contract work and

reducing the potential for cost overruns

and schedule delays in Federal

contracts. By prioritizing the

employment of high-quality workers,

the risk of understaffing and turnover

can be significantly reduced, leading to

further cost savings in terms of hiring

expenses.

Seminal theories in labor economics

document that unequal treatment among

groups, including in hiring and pay, can

create self-fulfilling prophecies,

whereby minorities believe that their

investments in skills and training will

not be fully rewarded by employers,

leading those groups to under-invest in

training and creating inefficiencies for

employers and the economy as a

whole.

B. Promoting Economy, Efficiency, and

Effectiveness Through Salary Range

Disclosure

Pay transparency laws at the state and

local level are becoming increasingly

prevalent. These regulations require

employers to be more transparent with

salary ranges and benefits, and they aim

to help promote fairness and equity in

the workplace. According to the Center

for American Progress,

as of March

2023, 8 states had enacted, and at least

15 states were considering, salary range

transparency laws. There are a number

of ways that salary range disclosures

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Arnold, David and Quach, Simon and Taska,

Bledi, The Impact of Pay Transparency in Job

Postings on the Labor Market (August 9, 2022).

Retrieved Jan. 9, 2024 from https://ssrn.com/

abstract=4186234.

Lyons, E., & Zhang, L. (2023). Salary

transparency and gender pay inequality: Evidence

from Canadian universities. Strategic Management

Journal.

Baker, M., Halberstam, Y., Kroft, K., Mas, A.,

& Messacar, D. (2023). Pay transparency and the

gender gap. American Economic Journal: Applied

Economics, 15(2), 157–183.

Salary transparency: One organization’s story,

Nonprofit Quarterly/Jeanne Bell, 2021. Retrieved

January 4, 2024 from https://nonprofitquarterly.org/

salary-transparency-one-organizations-story/.

How Salary Transparency can Impact retention.

Insights2Action Perspective/McAneny, 2022.

Retrieved January 4, 2024 from https://action.

deloitte.com/insight/3037/how-salary-transparency-

can-impact-retention.; Show me the money: More

job listings have salary details, The Wall Street

Journal/Kate Linebaugh and Ryan Knutson, 2022.

Retrieved January 4, 2024 from https://

www.wsj.com/podcasts/the-journal/show-me-the-

money-more-job-listings-have-salary-details/

7490aa9e-6100-4ff0-9197-cfc78a0cff55.

Pay Transparency Reduces Turnover, Payscale

Research Indicates. HRDive/Tornone, 2022.

Retrieved January 4, 2024 from Pay transparency

reduces turnover, Payscale research indicates | HR

Dive.

Salary transparency: One organization’s story,

Nonprofit Quarterly/Jeanne Bell, 2021. Retrieved

January 4, 2024 from https://nonprofitquarterly.org/

salary-transparency-one-organizations-story/.

promote economy, efficiency, and

effectiveness in Federal procurement.

1. Similar to compensation history

bans, salary range disclosure

requirements reduce gender and racial/

ethnic pay gaps by reducing pay secrecy

and helping workers negotiate. This

may reduce the costs for Federal

contracting.

Pay transparency measures can also

effectively identify compensation

differences and reduce broader gender

inequalities in the labor market. Arnold

et al.

is a working paper which studies

the impact of a January 2021 law in

Colorado that required job postings to

contain expected salary information.

Arnold et al. used data from Burning

Glass Technologies and found that this

law increased the fraction of postings

with salary information by 30

percentage points, although there

remains substantial non-compliance.

For employers that posted salaries both

before and after the policy, the Arnold

et al. found that posted salaries

increased by about 3.6 percent, on

average, following the policy. Note,

however, that while the results of

Arnold et al. support the intended

policy effect of raising workers’ salaries,

the study did not look at effect of pay

transparency on inequality, gender pay

gaps, and racial pay disparities.

Lyons and Zhang

examined

whether salary transparency influences

gender pay inequality in the context of

Canadian universities. The authors

relied on a policy change enacted in one

Canadian province that required salary

disclosure through a publicly searchable

database, thus lowering the cost of

monitoring the gender pay gap, and

found that, on average, salary disclosure

improves gender pay equality but

institutions respond in different ways.

Similarly, Baker et al.

examined the

impact of public sector salary disclosure

laws on university faculty salaries in

Canada. The laws, which enable public

access to the salaries of individual

faculty, were introduced in different

provinces at different times. Using

detailed administrative data covering

the majority of faculty in Canada, and

an event-study research design that

exploits within-province variation in

exposure to the policy across

institutions and academic departments,

Baker et al. found robust evidence that

the laws reduced the gender pay gap

between men and women by

approximately 20–40 percent.

2. Salary range disclosure

requirements reduce turnover rates.

Employee retention is critical to

organizational success. Keeping the

turnover rate low strengthens

contracting relationships, which

ultimately boosts productivity and

improves the ability of contractors to

stay on budget and on time.

Salary transparency may help build

workforce loyalty by building trust in

management.

While pay impacts

where people decide to work initially,

some reports have shown that pay

transparency also impacts whether or

not workers stay at their current jobs.

A recent study conducted by Payscale,

a Seattle-based compensation software

firm, showed that pay transparency

decreases intent to quit by 30 percent

when analyzed in isolation. Payscale’s

first Retention Report suggests that

workers are eager for greater

transparency from their employer in

general, with crowdsourced data from

more than 578,000 workers indicating

that they want information about the

health of the business and how their pay

is determined.

3. The proposed salary range

disclosure may lower recruiting costs.

By disclosing the salary range upfront,

employers can effectively lower

recruiting costs related to the selection

and negotiation process. This reduces

the costs for Federal contracting.

Studies have found that candidates

are more likely to click on job

advertisements that include a salary

range.

Thus, implementing pay

transparency can streamline the hiring

process. Upfront information aligns

expectations between employers and

applicants on pay and improves time-to-

fill open positions. Salary transparency

at the outset of the hiring process

facilitates pay negotiations later on,

eliminates candidates who would later

turn down an offer due to salary, and

frees up candidate interviews to cover

other topics.

C. The Combined Impact of

Compensation History Bans and Salary

Range Disclosures

Compensation history bans and salary

range disclosure requirements are

relatively new policies. As of August

2023, 22 states have enacted

compensation history bans and 10 states

have enacted a pay transparency law

with their ban. The States that have

implemented these policies have,

consistent with the literature discussed

above, highlighted the important

benefits of these policies to

‘‘increas[ing] efficiency and achiev[ing]

cost savings in state government.’’ Pa.

Exec. Order No. 2018–03 (June 6, 2016);

see also Office of Governor of Va., Press

Release, Governor Northam Announces

Employment Equity Initiative for State

Agencies (June 20, 2019) (‘‘This

initiative adopts industry-wide best

practices in compensation and

employment, which will help attract

and retain top talent in our state

workforce and bring greater equity and

overdue improvements to our state

policies.’’); and Hawai’i Senate Bill 1057

(July 3, 2023) (‘‘[I]nitial experiences

have benefited employers, current

employees, and prospective

employees.’’).

Moreover, despite the important

benefits of these policies, including in

reducing turnover, increasing the

quality of applicants, and streamlining

the hiring process, absent a

Government-wide policy individual

contractors cannot reasonably be

expected to adopt these policies with

sufficient uniformity.

Expected Costs

The FAR Council has identified

certain nonrecurring costs associated

with the initial rule familiarization,

review and revisions of existing

policies, and preparation of training for

those involved in the recruitment and

hiring process discussed below, and

welcomes public feedback on these and

any potential additional costs associated

with implementation of the proposed

rule.

Federal contractors like all businesses

establish market-based compensation to

recruit and retain a diverse and talented

workforce. Likewise, to be a competitive

and viable business, companies need to

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establish some level of budgeting and

human capital management. Regardless

of the size of the entity or the

sophistication level of their processes,

companies will, regardless of the

proposed rule, go through a process to

determine budgets and set expected

compensation levels. Companies will

seek market information from public

sources such as Bureau of Labor

Statistics Economic Cost Indices or

purchase compensation survey data.

The FAR Council has not identified any

additional expected costs related to

budgeting that would be incurred as a

result of not asking a job applicant their

compensation history, or more than a de

minimis amount for including a good

faith estimate of compensation as part of

existing human resource practices.

Identified Costs

Category Costs

Rule Familiarization .............. $15,754,521

Review and Modification of

Existing Policies ................ 31,509,043

Preparation of Training ......... 47,263,564

Total Nonrecurring

Costs .......................... 94,527,128

Rule Familiarization

Active SAM Registrants (1) .. 486,551

Hours (2) ............................... 1

Rate (3) ................................. 32.38

15,754,521

(1) Based on SAM data as of

November 30, 2023, there are 486,551

active registrants. We estimate this is

the universe of entities that may seek to

do business with the Government. Since

the actual number of prime contractors

during 2022 was less than 120,000 we

believe this represents the upper limit of

impacted entities inclusive of

subcontractors.

(2) Based on the short length, limited

complexity and assumptions it is

estimated that each entity would spend

one hour on initial general

familiarization of the rule.

(3) For this function we have assigned

a rate based on the Employer Cost for

Compensation Table 4 for Office and

administrative support occupations.

EVIEW AND

ODIFICATION OF

OLICIES

Active SAM Registrants ........ 486,551

Hours (1) ............................... 2

Rate (2) ................................. 32.38

$31,509,043

(1) Based on the short length, limited

complexity and assumptions we

estimate each entity will spend on

average 2 hours reviewing and

modifying their existing policies and

procedures.

(2) For this function we have assigned

a rate based on the Employer Cost for

Compensation Table 4 for the Office and

administrative support occupations.

REPARATION AND

RAINING

Active SAM Registrants ........ 486,551

Hours (1) ............................... 3

Rate (2) ................................. 32.38

$47,263,564

(1) Based on the short length, limited

complexity and assumptions we

estimate each entity will spend on

average 3 hours for preparation and

conduction of training.

(2) For this function we have assigned

a rate based on the Employer Cost for

Compensation Table 4 for the Office and

administrative support occupations.

V. Request for Public Comment

Interested parties are invited to

submit comments on both the proposed

policy of the OFPP Administrator and

the proposed implementing rule

developed by DoD, GSA, and NASA. We

encourage commenters to identify

whether their comments are directed to

the proposed policy, proposed

implementing rule, or both.

A. Comments on the Proposed Policy of

the OFPP Administrator

The OFPP Administrator requests

comments on the proposed policy and

especially welcomes input in response

to the questions below. Such

information will be useful for better

understanding the effect of regulations

on pay-setting by Federal contractors.

1. How might states’ experiences with

salary history bans inform future

regulatory actions? State pay equity

statutes often provide workers with

protections beyond those in Federal

laws such as Title VII of the Civil Rights

Act of 1964 and the Equal Pay Act.

Many states are updating equal pay

statutes and increasing access to equal

pay protections and pay transparency,

such as limiting salary history questions

during the job offer stage, requiring

employers to provide pay ranges on job

postings, increasing pay reporting

requirements for employers, or

expanding the classes protected under

existing equal pay laws to include

identities such as gender identity, race,

age, sexuality, religion, and country of

origin. For example, some state laws

require equal pay for ‘‘substantially

similar’’ work rather than for the

narrower ‘‘equal work’’ set out in

Federal law.

2. What data should the Federal

Government consider when measuring

the effects of greater pay equity

achieved through this rule, including

effects on worker engagement, turnover,

and productivity, as well as effects on

worker equity, dignity, and fairness?

3. What factors should the OFPP

Administrator consider for positions of

high occupational segregation—that is,

the occupations predominantly held by

women that are often paid and valued

less, compared to those predominantly

held by men at the same level of skill

or education?

4. Is there additional literature or

ongoing research that would inform

formulation of the final policy?

B. Proposed FAR Rule

The FAR Council agencies likewise

request comments on all aspects of their

proposed rule to implement the OFPP

Administrator’s proposed policy,

including:

1. Which contractors and

subcontractors are covered, including

small businesses;

2. The scope of contracts included in

the proposed rule;

3. The parameters of the prohibition

on compensation history inquiries;

4. The parameters of the

compensation disclosure requirement;

5. The notice of rights policy for

employers to provide;

6. The applicant complaint process;

and

7. Additional costs and benefits that

should be considered, including as it

relates to workers, Federal contractors,

including small businesses, and other

stakeholders.

VI. Severability

The OFPP Administrator has

determined that both the proposed

compensation history ban and

compensation disclosure requirement,

separately and independently, would

promote economy, efficiency, and

effectiveness in the procurement of

property and services by the Federal

Government. The OFPP Administrator

accordingly intends that the discrete

components of the proposed policy

described in section I, which are

capable of operating independently, be

legally severable. Likewise, DoD, GSA,

and NASA would intend that the

proposed rule implementing the OFPP

Administrator’s proposed policy be

severable. If any portion of the proposed

policy or implementing rule were held

to be invalid or unenforceable facially,

or as applied to any entity or

circumstance, that portion shall be

severable from the remainder of the

policy or rule, and shall not affect the

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remainder thereof, or their application

to entities not similarly situated or to

other dissimilar circumstances.

VII. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 (as

amended by E.O. 14094) and 13563

direct agencies to assess the costs and

benefits of available regulatory

alternatives and, if regulation is

necessary, to select regulatory

approaches that maximize net benefits

(including potential economic,

environmental, public health and safety

effects, distributive impacts, and

equity). E.O. 13563 emphasizes the

importance of quantifying both costs

and benefits, of reducing costs, of

harmonizing rules, and of promoting

flexibility. This is a significant

regulatory action and, therefore, was

subject to review under section 6(b) of

E.O. 12866, Regulatory Planning and

Review, dated September 30, 1993.

VIII. Regulatory Flexibility Act

This proposed rule, if finalized, may

have a significant economic impact on

a substantial number of small entities

within the meaning of the Regulatory

Flexibility Act 5 U.S.C. 601–612. The

Initial Regulatory Flexibility Analysis

(IRFA) is summarized as follows:

DoD, GSA, and NASA are proposing to

amend the Federal Acquisition Regulation

(FAR) to implement the Administrator for

Federal Procurement Policy’s proposed pay

equity policy, which would require that

Government agencies, in order to promote

economy, efficiency, and effectiveness in

Federal procurement, enhance pay equity

and transparency for job applicants and

employees of contractors and subcontractors.

The objective of the rule is to implement

the acquisition policy established by the

Administrator for Federal Procurement

Policy, pursuant to 41 U.S.C. 1121(b), to

promote pay equity for any recruitment and

hiring for work on or in connection with a

Government contract, which prohibits

contractors and subcontractors from seeking

and considering information about job

applicants’ current or past compensation

when making employment decisions. In

addition, businesses awarded a contract or

subcontract containing the new clause will

be required in all advertisements for job

openings placed by or on behalf of the

contractor or subcontractor to disclose the

compensation to be offered to the hired

applicant, for any position to perform work

on or in connection with the contract. The

disclosure must indicate the salary or wages,

or range thereof, that the contractor or

subcontractor in good faith believes that it

will pay for the advertised position, and may

reflect, as applicable: the contractor’s or

subcontractor’s pay scale for that position,

the range of compensation for those currently

working in similar jobs, or the amount

budgeted for the position. The disclosure

must also include a general description of the

benefits and other forms of compensation

applicable to the job opportunity. Where at

least half of the expected compensation for

the advertised position is derived from

commissions, bonuses, and/or overtime pay,

the contractor must specify the percentage of

overall compensation or dollar amount, or

ranges thereof, for each form of

compensation, as applicable, that it in good

faith believes will be paid for the advertised

position.

The proposed rule also provides guidance

on appropriate accountability measures

associated with the prohibition and

disclosure requirement.

Promulgation of this FAR rule is

authorized by 41 U.S.C. 1121(b); 41 U.S.C.

1303; 40 U.S.C. 121(c); 10 U.S.C. chapter 4

and 10 U.S.C. chapter 137 legacy provisions

(see 10 U.S.C. 3016); and 51 U.S.C. 20113.

The proposed rule may have a significant

economic impact on a substantial number of

small entities within the meaning of the

Regulatory Flexibility Act, 5 U.S.C. 601–612.

The proposed rule will apply to both

contractors and subcontractors and the

prohibition and disclosure requirement will

apply to employees or applicants that will be

performing work on or in connection with

the contract or subcontract. The proposed

rule will apply the prohibition and

disclosure requirement to all contracts over

the micro-purchase threshold, which is

generally $10,000.

Based on data obtained from the Federal

Procurement Data System, 58,882 unique

small entities out of the total 76,414 unique

entities were awarded contracts in fiscal year

2022.

With regard to an estimate of the number

of small entities that will be impacted by the

rule as a subcontractor, data from the Federal

Funding Accountability and Transparency

Act Subaward Reporting System (FSRS) at

www.USASpending.gov was used. However,

this system does not distinguish small

businesses from other than small businesses.

Data for fiscal year 2022 show there were a

total of 203,802 subcontracts reported; these

subcontracts were awarded to 24,190 unique

entities. For estimating purposes, DoD, GSA,

and NASA assumed that 20 percent of

subcontracts have a second-tier

subcontractor, 10 percent of second-tier

subcontractors have a third-tier

subcontractor, and 5 percent of third-tier

subcontractors have a fourth-tier

subcontractor. This calculation estimates the

total number of unique subcontractors is

29,536. Because the FSRS data does not

distinguish small businesses from other than

small businesses, this number is likely an

overestimate of the small entities to which

this rule will apply.

Considering there is no way to determine

how many of the small entities overlap as

both a prime contractor and a subcontractor,

the two figures of 58,882 and 29,536 are not

added together to estimate the number of

total small entities to which the rule will

apply.

The proposed rule does not include any

new recordkeeping requirements for small

businesses. However, the proposed rule does

create new reporting and compliance

requirements for contractors and

subcontractors, including small businesses.

In terms of reporting, small businesses

awarded a contract or subcontract containing

the new clause will be required, in all

advertisements for job openings placed by or

on behalf of the contractor or subcontractor,

to disclose the compensation to be offered to

the hired applicant, for any position to

perform work on or in connection with the

contract. The disclosure must indicate the

salary or wages, or range thereof, that the

contractor or subcontractor in good faith

believes that it will pay for the advertised

position, and may reflect, as applicable: the

contractor’s or subcontractor’s pay scale for

that position; the range of compensation for

those currently working in similar jobs; or

the amount budgeted for the position. The

disclosure must also include a general

description of the benefits and other forms of

compensation applicable to the job

opportunity. Where at least half of the

expected compensation for the advertised

position is derived from commissions,

bonuses, and/or overtime pay, the contractor

or subcontractor must specify the percentage

of overall compensation or dollar amount, or

ranges thereof, for each form of

compensation, as applicable, that it in good

faith believes will be paid for the advertised

position. The proposed rule also requires a

small business awarded a contract or

subcontract to provide applicants with notice

of this requirement as either part of the job

announcement or application process. Since

these reporting requirements counts as

information collections under the Paperwork

Reduction Act (44 U.S.C. 3501–3521), the

Regulatory Secretariat Division has submitted

a request for approval of a new information

collection requirement to the Office of

Management and Budget.

In terms of compliance requirements, the

proposed rule prohibits small businesses

awarded a contract or subcontract from

seeking and considering information about

job applicants’ compensation history when

making employment decisions. The

prohibition would apply to the recruitment

and hiring for any position to perform work

on or in connection with the contract. This

compliance requirement is in addition to the

compliance requirement to disclose

compensation information listed above.

While some small businesses may already be

subjected to a prohibition from seeking and

considering applicants’ compensation history

(e.g., small businesses located in states or

localities that have enacted laws similar to

the prohibition applied in this proposed rule)

and some small businesses may already

disclose compensation information in their

job announcements, the requirements of this

proposed rule may be new for other small

businesses.

The rule does not duplicate, overlap, or

conflict with any other Federal rules.

DoD, GSA, and NASA considered

minimizing the impact of the rule on small

entities by—

• Exempting commercially available off-

the-shelf (COTS) contracts or contracts for

commercial products or commercial services;

• Exempting subcontracts;

• Exempting contracts under the

simplified acquisition threshold (which is

generally $250,000);

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• Exempting contracts with small

businesses; or

• Not issuing a rule to implement the

policy established by the Administrator for

Federal Procurement Policy, pursuant to 41

U.S.C. 1121(b), to promote pay equity for any

recruitment and hiring for work on or in

connection with a Government contract.

DOD, GSA & NASA did not agree to pursue

this alternative approach.

Limiting the application of a compensation

history ban through any of these alternatives

could result in employees performing the

same or similar functions receiving disparate

treatment during hiring and recruiting for

work on or in connection with Government

contracts. This, in turn, increases the risk of

pay disparity among employees working on

Government contracts and, for the many

reasons explained above, deprives the

Federal marketplace of the economy,

efficiency, and effectiveness in the

procurement of property and services by the

Federal Government when there is pay

equity. The benefits of the pay equity and

transparency requirements in this proposed

rule are equally impactful in commercial and

noncommercial settings as well as to large or

small dollar contracts. For this reason, an

increasing number of states and localities

have imposed requirements similar to those

described in this proposed rulemaking for

sales of any goods or services in any dollar

amount, whether business to business,

business to consumer, or business to

government. Limiting application would

forgo the various ways in which pay equity

promotes economy, efficiency, and

effectiveness. In addition, because many

entities who sell in those states or localities

also sell in the Federal marketplace, it is

believed that many Government contractors,

including small businesses, already have

incorporated these requirements into their

existing human capital management

practices. Moreover, limiting the application

of the proposed rule could create unintended

confusion and ambiguity for contractors and

prospective employees. Many contractors

who do business with the government have

contracts below and above the simplified

acquisition threshold, and provide both

commercial and government unique products

and services. Carve-outs to the rule could

result in contractor employees performing

the same or similar functions receiving

disparate treatment during hiring and

recruiting for work on or in connection with

Government contracts, which would

perpetuate inequity and deprive the Federal

marketplace of economy, efficiency, and

effectiveness in the procurement of property

and services.

DoD, GSA, and NASA have narrowed the

scope of the rule by only applying it to prime

contracts and subcontracts with a principal

place of performance within the United

States including its outlying areas (see

22.XX01, 22.XX04, and 52.222–ZZ(g)).

The FAR Council will consider public

feedback before making a final determination

on the scope of the final rule.

The Regulatory Secretariat Division

has submitted a copy of the IRFA to the

Chief Counsel for Advocacy of the Small

Business Administration. A copy of the

IRFA may be obtained from the

Regulatory Secretariat Division. DoD,

GSA, and NASA invite comments from

small business concerns and other

interested parties on the expected

impact of this rule on small entities.

DoD, GSA, and NASA will also

consider comments from small entities

concerning the existing regulations in

subparts affected by the rule in

accordance with 5 U.S.C. 610. Interested

parties must submit such comments

separately and should cite 5 U.S.C. 610

(FAR Case 2023–021), in

correspondence.

IX. Paperwork Reduction Act

The Paperwork Reduction Act (44

U.S.C. 3501–3521) applies because the

proposed rule contains information

collection requirements. Accordingly,

the Regulatory Secretariat Division has

submitted a request for approval of a

new information collection concerning

‘‘Pay Equity and Transparency in

Federal Contracting’’ to the Office of

Management and Budget (OMB).

A. Public Reporting Burden. Public

reporting burden for this information

collection, includes the time for

reviewing instructions, searching

existing data sources, gathering and

maintaining the data needed, and

completing and reviewing the collection

of information.

1. The annual reporting burden

estimated for compensation disclosure

requirements is as follows:

Respondents ......................... 96,132

Total annual responses ........ 96,132

Hours/response .................... ×1

Total burden hours ............... 96,132

2. The annual reporting burden

associated with applicant notification of

rights is estimated as follows:

Respondents ......................... 96,132

Total annual responses ........ 96,132

Hours/response .................... ×1

Total burden hours ............... 96,132

3. The annual reporting burden

associated with the complaints process

is estimated as follows:

Respondents ......................... 753

Total annual responses ........ 753

Hours/response .................... ×1

Total burden hours ............... 753

B. Request for Comments Regarding

Paperwork Burden

Submit comments on this collection

of information no later than April 1,

2024 through https://

www.regulations.gov and follow the

instructions on the site. All items

submitted must cite OMB Control No.

9000–XXXX, Pay Equity and

Transparency in Federal Contracting.

Comments received generally will be

posted without change to https://

www.regulations.gov, including any

personal and/or business confidential

information provided. To confirm

receipt of your comment(s), please

check https://www.regulations.gov,

approximately two to three days after

submission to verify posting. If there are

difficulties submitting comments,

contact the GSA Regulatory Secretariat

Division at 202–501–4755 or

[email protected].

Public comments are particularly

invited on:

• The necessity of this collection of

information for the propoer performance

of the functions of Federal Government

acquisitions, including whether the

information will have practical utility;

• The accuracy of the estimate of the

burden of this collection of information;

• Ways to enhance the quality, utility,

and clarity of the information to be

collected; and

• Ways to minimize the burden of the

collection of information on

respondents, including the use of

automated collection techniques or

other forms of informatiion technology.

Requesters may obtain a copy of the

supporting statement from the General

Services Administration, Regulatory

Secretariat Division by calling 202–501–

4755 or emailing [email protected].

Please cite OMB Control Number 9000–

XXXX, Pay Equity and Transparency in

Federal Contracting.

List of Subjects in 48 CFR Parts 1, 2, 12,

22, and 52

Government procurement.

William F. Clark,

Director, Office of Government-wide

Acquisition Policy, Office of Acquisition

Policy, Office of Government-wide Policy.

Therefore, DoD, GSA, and NASA

propose amending 48 CFR parts 1, 2, 12,

22, and 52 as set forth below:

■ 1. The authority citation for 48 CFR

parts 1, 2, 12, 22, and 52 continues to

read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C.

chapter 4 and 10 U.S.C. chapter 137 legacy

provisions (see 10 U.S.C. 3016); and 51

U.S.C. 20113.

PART 1—FEDERAL ACQUISITION

REGULATIONS SYSTEM

■ 2. In section 1.106 amend in the table

following the introductory text by

adding in numerical order an entry for

‘‘52.222–ZZ’’ to read as follows:

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1.106 OMB approval under the Paperwork

Reduction Act.

* * * * *

FAR segment OMB control No.

*****

52.222–ZZ ........................ 9000–XXXX

*****

* * * * *

PART 2—DEFINITIONS OF WORDS

AND TERMS

■ 3. Amend section 2.101, in paragraph

(b)(2) in the definition of ‘‘United

States’’, by redesignating paragraphs (9)

through (12) as paragraphs (10) through

(13); and adding a new paragraph (9) to

read as follows:

2.101 Definitions.

* * * * *

(b) * * *

(2) * * *

United States ***

(9) For use in subpart 22.XX, see the

definition at 22.XX01.

* * * * *

PART 12—ACQUISITION OF

COMMERCIAL PRODUCTS AND

COMMERCIAL SERVICES

■ 4. Amend section 12.301 by

redesignating paragraphs (d)(11)

through (14) as paragraphs (d)(12)

through (15); and adding a new

paragraph (d)(11) to read as follows:

12.301 Solicitation provisions and

contract clauses for the acquisition of

commercial products and commercial

services.

* * * * *

(d) * * *

(11) Insert the clause at 52.222–ZZ,

Prohibition on Compensation History

Inquiries and Requirement for

Compensation Disclosures by

Contractors During Recruitment and

Hiring, as prescribed in 22.XX04.

* * * * *

PART 22—APPLICATION OF LABOR

LAWS TO GOVERNMENT

ACQUISITIONS

■ 5. Add subpart 22.XX to read as

follows:

Subpart 22.XX—Prohibition on

Compensation History Inquiries and

Requirement for Compensation

Disclosures by Contractors

Sec.

22.XX00 Scope of subpart.

22.XX01 Definitions.

22.XX02 Policy.

22.XX03 Applicant complaint procedures.

22.XX04 Contract clause.

Subpart 22.XX—Prohibition on

Compensation History Inquiries and

Requirement for Compensation

Disclosures by Contractors

22.XX00 Scope of subpart.

This subpart implements the policy

established by the Administrator for

Federal Procurement Policy, pursuant to

41 U.S.C. 1121(b), to promote pay equity

for any recruitment and hiring for work

on or in connection with a Government

contract.

22.XX01 Definitions.

As used in this subpart—

Applicant means a prospective

employee or current employee applying

for a position to perform work on or in

connection with the contract.

Compensation means any payments

made to, or on behalf of, an employee

or offered to an applicant as

remuneration for employment,

including but not limited to salary,

wages, overtime pay, shift differentials,

bonuses, commissions, vacation and

holiday pay, allowances, insurance and

other benefits, stock options and

awards, profit sharing, and retirement.

Compensation history means the

compensation an applicant is currently

receiving or the compensation the

applicant has been paid in a previous

job.

United States means the 50 States, the

District of Columbia, and outlying areas.

Work on or in connection with the

contract means work called for by the

contract or work activities necessary to

the performance of the contract but not

specifically called for by the contract.

22.XX02 Policy.

(a) Pursuant to 41 U.S.C. 1121(b) the

Administrator for OFPP has established

that it is the policy of the Federal

Government to eliminate pay practices

that inhibit the economy, efficiency, and

effectiveness of the procurement of

property and services.

(b) Contractors and subcontractors are

prohibited from seeking and considering

information about job applicants’

compensation history when making

employment decisions. The prohibition

applies to the recruitment and hiring for

any position to perform work on or in

connection with the contract.

required to disclose, in all

advertisements for job openings placed

by or on behalf of the contractor or

subcontractor, the compensation to be

offered to the hired applicant, for any

position to perform work on or in

connection with the contract. The

disclosure must indicate the salary or

wages, or range thereof, the contractor

or subcontractor in good faith believes

that it will pay for the advertised

position. The disclosure must also

include a general description of the

benefits and other forms of

compensation applicable to the job

opportunity. Where at least half of the

expected compensation for the

advertised position is derived from

commissions, bonuses, and/or overtime

pay, the contractor or subcontractor

must specify the percentage of overall

compensation or dollar amount, or

ranges thereof, for each form of

compensation, as applicable, that it in

good faith believes will be paid for the

advertised position.

(d) Contractors and subcontractors are

required to provide applicants with

notice of these requirements as either

part of the job announcement or

application process.

22.XX03 Applicant complaint procedures.

(a) Applicants alleging violations of

the requirements in the clause at

52.222–ZZ may submit a complaint to

the central collection point of the

agency that issued the solicitation or

awarded the contract or order, as

identified at www.dol.gov/general/labor-

advisors. The complaint must be

submitted within 180 days of the date

the alleged violation occurred.

(b)(1) Except as provided in paragraph

(2), the contracting agency will review

the complaint, consult with the

complainant as necessary to confirm the

complainant is a covered applicant, and

take action as appropriate.

(2) Applicants who wish to submit

complaints that allege discrimination

prohibited by Executive Order 11246,

Section 503 of the Rehabilitation Act of

1973, and the Vietnam Era Veterans’

Readjustment Assistance Act should

submit such complaints directly to the

Department of Labor’s Office of Federal

Contract Compliance Programs (OFCCP)

at https://www.dol.gov/agencies/ofccp/

contact/file-complaint. If complaints

alleging discrimination are submitted to

an agency central collection point rather

than directly with OFCCP, the

complaints will be forwarded to OFCCP.

22.XX04 Contract clause.

The contracting officer shall insert the

clause at 52.222–ZZ, Prohibition on

Compensation History Inquiries and

Requirement for Compensation

Disclosures by Contractors During

Recruitment and Hiring, in all

solicitations and contracts where the

principal place of performance is within

the United States.

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PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

■ 6. Amend section 52.213–4 by—

■ a. Revising the date of the clause and

revising paragraph (a)(2)(vii);

■ b. Redesignating paragraphs (b)(2)(iv)

and (v) as paragraphs (b)(2)(v) and (vi);

and

■ c. Adding a new paragraph (b)(2)(iv)

The revisions and addition read as

follows:

52.213–4 Terms and Conditions—

Simplified Acquisitions (Other Than

Commercial Products and Commercial

Services).

* * * * *

Terms and Conditions—Simplified

Acquisitions (Other Than Commercial

Products and Commercial Services)

(DATE)

(a) * * *

(2) * * *

(vii) 52.244–6, Subcontracts for

Commercial Products and Commercial

Services (DATE).

* * * * *

(b) * * *

(2) * * *

(iv) 52.222–ZZ, Prohibition on

Compensation History Inquiries and

Requirement for Compensation

Disclosures by Contractors During

Recruitment and Hiring (DATE)

* * * * *

■ 7. Add section 52.222–ZZ to read as

follows:

52.222–ZZ Prohibition on Compensation

History Inquiries and Requirement for

Compensation Disclosures by Contractors

During Recruitment and Hiring.

As prescribed in 22.XX04, insert the

following clause:

Prohibition on Compensation History

Inquiries and Requirements for

Compensation Disclosures by

Contractors During Recruitment and

Hiring (DATE)

(a) Definitions. As used in this

clause—

Applicant means a prospective

employee or current employee applying

for a position to perform work on or in

connection with the contract.

Compensation means any payments

made to, or on behalf of, an employee

or offered to an applicant as

remuneration for employment,

including but not limited to salary,

wages, overtime pay, shift differentials,

bonuses, commissions, vacation and

holiday pay, allowances, insurance and

other benefits, stock options and

awards, profit sharing, and retirement.

Compensation history means the

compensation an applicant is currently

receiving or the compensation the

applicant has been paid in a previous

job.

Work on or in connection with the

contract means work called for by the

contract or work activities necessary to

the performance of the contract but not

specifically called for by the contract.

(b) Applicability. The prohibition on

compensation history inquiries and

requirement to disclose compensation

described in this clause apply to the

recruitment and hiring for any position

to perform work on or in connection

with the contract. Contractors are also

encouraged to apply the prohibitions

and requirements in paragraphs (c) and

(d) of this clause, respectively, to other

positions, including to the recruitment

and hiring for any position that the

Contractor reasonably believes could

eventually perform work on or in

connection with the contract.

and hiring under paragraph (b) of this

clause the Contractor shall not—

(1) Seek an applicant’s compensation

history, either orally or in writing,

directly from any person, including the

applicant or the applicant’s current or

former employer or through an agent;

(2) Require disclosure of

compensation history as a condition of

an applicant’s candidacy;

(3) Retaliate against or refuse to

interview or otherwise consider, hire, or

employ any applicant for failing to

respond to an inquiry regarding their

compensation history;

(4) Rely on an applicant’s

compensation history—

(i) As a criterion in screening or

considering the applicant for

employment or

(ii) In determining the compensation

for such individual at any stage in the

selection process; and

(5) Violate the prohibitions of (c)(1)

through (4) even if an applicant for

employment volunteers their

compensation history without

prompting at any stage in the

recruitment and hiring process.

(d) Compensation disclosure

requirements. (1) The Contractor shall,

in all advertisements for job openings

placed by or on behalf of the Contractor

for any position to perform work on or

in connection with the contract,

disclose the compensation to be offered

to the hired applicant.

(2) The disclosure must indicate the

salary or wages, or range thereof, the

Contractor in good faith believes that it

will pay for the advertised position, and

may reflect, as applicable: the

Contractor’s pay scale for that position,

the range of compensation for those

currently working in similar jobs, or the

amount budgeted for the position.

(3) The disclosure must also include

a general description of the benefits and

other forms of compensation applicable

to the job opportunity. Where at least

half of the expected compensation for

the advertised position is derived from

commissions, bonuses, and/or overtime

pay, the Contractor must specify the

percentage of overall compensation or

dollar amount, or ranges thereof, for

each form of compensation, as

applicable, that it in good faith believes

will be paid for the advertised position.

(e) Applicant notification of rights

requirements. The Contractor shall

ensure that any applicants that are

covered by the prohibitions in

paragraph (c) and the disclosure

requirements in paragraph (d) of this

clause are provided with notice of these

requirements as either part of the job

announcement or application process

and provided with the following

information in writing:

‘‘This employer is a Federal

contractor or subcontractor. Under 48

CFR (FAR) 52.222–ZZ, Prohibition on

Compensation History Inquiries and

Requirement for Compensation

Disclosures by Contractors During

Recruitment and Hiring, Federal

contractors and subcontractors may not

inquire about or rely on an applicant’s

compensation history to screen an

applicant for employment or to

determine the applicant’s pay for a

position on or in connection with a

Federal contract or subcontract, even

when the information is offered without

prompting. The employer must also

disclose the compensation for the

position in all advertisements for the job

opening.

Applicants alleging Federal contractor

or subcontractor violations of these

requirements:

These applicants may submit a

complaint to the central collection point

of the agency that issued the solicitation

for the Federal contract or awarded the

Federal contract or order, as identified

at www.dol.gov/general/labor-advisors.

The complaint must be submitted

within 180 days of the date the violation

occurred.

The agency that issued the solicitation

or awarded the contract or order on

which this applicant would primarily

work is llllll. [Contractor to fill

in with appropriate agency name] For

applicants supporting multiple

agencies, complaints should copy the

central collection point of all known

agencies to be supported by the

applicant’s position.

Applicants alleging discrimination on

the basis of race, color, religion, sex,

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sexual orientation, gender identity,

national origin, disability, or protected

veteran status should file a complaint

with the Office of Federal Contract

Compliance Programs (OFCCP). If

complaints alleging discrimination are

submitted to an agency central

collection point rather than directly

with OFCCP, the complaints will be

forwarded to OFCCP. Information on the

process for filing a formal complaint of

discrimination with OFCCP can be

found at the following website: https://

www.dol.gov/agencies/ofccp/contact/

file-complaint.’’

(f) Relationship to other

compensation data reporting

requirements. Nothing in this clause

alleviates the Contractor from

responsibilities that may be imposed by

other clauses, such as for providing the

contracting officer with employee

compensation data required for the

evaluation of proposals or claims.

(g) Subcontracts. The Contractor shall

include the substance of this clause,

including this paragraph (g) in all

subcontracts at any tier, with a principal

place of performance within the United

States including its outlying areas.

(End of clause)

■ 8. Amend section 52.244–6 by—

■ a. Revising the date of the clause;

■ b. Redesignating paragraphs (c)(1)(xx)

through (xxiii) as paragraphs (c)(1)(xxi)

through (xxiv); and

■ c. Adding a new paragraph (c)(1)(xx).

The revision and addition read as

follows:

52.222–6 Subcontracts for Commercial

Products and Commercial Services.

* * * * *

Subcontracts for Commercial Products

and Commercial Services (DATE)

* * * * *

(1) * * *

(xx) 52.222–ZZ, Prohibition on

Compensation History Inquiries and

Requirement for Compensation

Disclosures by Contractors During

Recruitment and Hiring (DATE).

* * * * *

[FR Doc. 2024–01343 Filed 1–29–24; 8:45 am]

BILLING CODE 6820–EP–P

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