Whether a company must post a job opening is not governed by a single, uniform rule across the United States. The requirement is highly fragmented, depending significantly on the employer’s location, the nature of its business, and its involvement with federal programs or visa sponsorship. Understanding this landscape requires distinguishing between voluntary human resources policies designed for talent acquisition and specific legal mandates that carry regulatory consequences. This article examines the various legal obligations that compel certain employers to publicly advertise their open positions.
The Baseline: No General Federal Requirement
For most private sector employers, there is no overarching federal statute compelling the external posting of job vacancies. The federal government generally defers to employers on recruitment methods, viewing the decision to advertise as part of standard operational freedom. This absence of a mandate means companies are free to fill positions through internal transfers, employee referrals, or other non-public methods. The federal government’s focus is primarily on anti-discrimination, ensuring that once an employer chooses to advertise, the process is fair and does not unlawfully exclude protected groups.
State and Local Job Posting Mandates
The long-standing federal non-requirement has been increasingly challenged by a patchwork of state and local regulations aimed at enhancing labor market transparency. These new laws shift the focus from merely posting a vacancy to mandating specific disclosures within the posting itself. Jurisdictions across the country, including states like California, Colorado, New York, and Washington, have enacted legislation requiring employers to include a good-faith wage or salary range in nearly all job advertisements.
New York City’s law, for instance, requires employers with four or more employees to post the minimum and maximum annual salary or hourly wage they believe in good faith they would pay for the advertised role. This disclosure requirement applies regardless of the medium used for the advertisement, encompassing job boards, internal bulletin boards, and printed flyers.
The Colorado Equal Pay for Equal Work Act is particularly expansive, requiring employers to disclose the compensation range, a general description of benefits, and other compensation offered for the role. Furthermore, this law explicitly extends the disclosure requirements to internal promotion opportunities communicated to current staff. Other states, such as Maryland and New Jersey, have also adopted similar requirements, often mandating the inclusion of a general description of benefits and compensation along with the wage range. The scope of these laws often covers jobs that can be performed remotely by a resident of the jurisdiction, creating complex compliance challenges for companies that hire nationally.
Specific Requirements for Federal Contractors and Visa Sponsorship
Under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), federal contractors and subcontractors with contracts of $150,000 or more must list all employment openings with the appropriate State Workforce Agency (SWA) job bank, also known as the Employment Service Delivery System (ESDS). This mandatory listing is a specific affirmative action step contractors take to recruit and hire qualified protected veterans.
The requirement to list jobs with the ESDS is overseen by the Office of Federal Contract Compliance Programs (OFCCP) and applies to nearly all positions, with limited exceptions for executive positions, jobs lasting three days or less, or positions filled entirely internally. Contractors must also notify the SWA that they are a federal contractor and request priority referral of protected veterans.
Posting mandates also arise in the context of sponsoring foreign workers for employment-based green cards through the Program Electronic Review Management (PERM) process. Before an employer can certify a position for a foreign national, the Department of Labor (DOL) requires the employer to demonstrate that no qualified U.S. worker is available for the job.
The PERM process requires the employer to place a job order with the State Workforce Agency and often involves additional advertisements, such as two Sunday newspaper advertisements or placement on the company website. Furthermore, a document called the Notice of Filing (NOF) must be conspicuously posted at the worksite for a minimum of ten consecutive business days. The NOF is not intended as a recruitment tool but rather serves to notify current employees that a labor certification is being filed for the position, including instructions for reporting potential violations to the DOL Certifying Officer.
Internal Postings and Promotions: HR Best Practice vs. Legal Duty
Many organizations maintain formal internal job posting or “job bidding” policies that govern how existing employees can apply for new roles or promotions. Internal transparency helps retain skilled workers by offering clear pathways for career advancement within the company structure.
For most private employers, the decision to post jobs internally remains a matter of company policy rather than a legal mandate. The policy provides a documented, non-discriminatory process for filling vacancies, which can serve as a legal defense if hiring decisions are challenged.
The exceptions to this policy-driven approach often involve collective bargaining agreements, where union contracts may stipulate that all new vacancies must be posted internally for a specified period before external recruitment can begin. Furthermore, some of the newer state and local salary transparency laws explicitly extend disclosure requirements to postings for internal promotions or transfers, transforming a best practice into a regulatory requirement.
Penalties for Failing to Follow Posting Regulations
The consequences for non-compliance are tailored to the type of regulation violated. For example, the New York City Commission on Human Rights (NYCCHR) is empowered to impose civil penalties of up to $250,000 for subsequent or uncorrected violations of salary disclosure mandates.
Violations of federal contractor obligations carry the risk of administrative sanctions, including debarment, which prevents the company from securing future federal contracts. The OFCCP requires extensive record-keeping, and a failure to list jobs with the ESDS can result in a compliance review finding and subsequent penalties. For employers sponsoring foreign workers, failure to adhere to the strict PERM recruitment and posting rules, such as the conspicuous posting of the Notice of Filing, results in the outright denial of the labor certification application.