Massachusetts has joined 11 other states that have already passed pay transparency laws—California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Minnesota, Nevada, New York, Rhode Island, and Washington.
Pay Range Disclosure
Under the Act, public and private employers with 25 or more employees in Massachusetts must:
Disclose pay ranges in job postings;
Provide pay ranges of positions to employees who are offered promotions or transfers to new positions with different job responsibilities and
On request, provide the pay range to an employee who already holds an employment position or to an applicant for such position.
Pay range means the annual salary range or hourly wage range that the covered employer reasonably and in good faith expects to pay for such position at that time. As of now, employers are not required to include other compensation information, such as bonuses, commissions, or benefits.
Posting means any advertisement or job posting intended to recruit job applicants for a specific employment position, including direct posts by employers or indirect posts through third parties.
The law is silent on whether it applies to postings for remote jobs, including jobs that remote workers could perform in Massachusetts.
Equal Employment Opportunity and Wage Data Reporting
The Act differs from most other states’ pay transparency laws in that it includes an additional reporting requirement for certain employers. Specifically, public and private employers with 100 or more employees in Massachusetts at any time during the prior calendar year who are also subject to federal wage data reporting requirements must submit an equal employment opportunity (EEO) and wage data report to the Secretary of the Commonwealth.
Private employers must provide this information annually. Unions, state and local governments, and elementary and secondary school systems must submit their reports every other year. The submissions can be in the form of the covered employer’s federal EEO reports.
The employer reports will not be considered “public records.” However, the Executive Office of Labor and Workforce Development will publish aggregate wage and workforce data reports based on the employer data it receives.
Anti-Retaliation
The Act prohibits employers from discharging, retaliating against, or discriminating against an employee or applicant who has (i) taken action to enforce their rights under the Act, (ii) made a complaint to their employer or the employer’s agent or the attorney general regarding a violation of the Act, (iii) instituted, or caused to be instituted, a proceeding under the Act, or (iv) testified or is about to testify in any such proceedings.
Enforcement
The Massachusetts attorney general has exclusive jurisdiction to enforce the Act by seeking injunctive or declaratory relief. Employees and job applicants have no private right of action.
Covered employers who violate the Act will also be subject to:
A warning for the first offense;
A fine of not more than US$500 for the second offense;
A fine of not more than US$1,000 for the third offense; and
A fine of US$7,500 to US$25,000 per offense for the fourth offense or subsequent offenses, depending on the circumstances.
One or more job postings made by the same employer during 48 hours will be considered one offense.
For the first two years of the pay transparency and wage data reporting requirements, covered employees will have two business days after notice of a violation to cure any defect before a fine is imposed.
Violations of the Act will not subject employers to treble damages under the Massachusetts Wage Act.
Dates
By 1 February 2025, employers subject to the Act’s EEO and wage data reporting requirement must submit their EEO and wage data reports to the Secretary of the Commonwealth.
The Act’s pay transparency requirements take effect on 31 July 2025.
Recommendations
Start developing or updating pay ranges for positions.
Analyze pay practices and, if necessary, update them to address improper wage disparities. The Massachusetts Equal Pay Act (MEPA) includes a safe harbor provision that allows employers to avoid liability for pay discrimination if they can show that they conducted a good faith, reasonable self-evaluation of their pay practices within the previous three years and before an action was filed.
Beginning 31 July 2025, employees will be able to see pay ranges in job postings and request pay ranges. This information could lead to an increased focus on wage disparities and an increased risk of pay discrimination claims. Employers should conduct self-evaluations before 31 July 2025 so they can avail themselves of MEPA’s affirmative defense.
Develop a communication plan to convey the Act’s pay transparency obligations to employees and job applicants.
Assess how the Act’s requirements work with existing state or municipality requirements to which employers are already or will be subject.
Review and update the federal EEO process to include a state filing by 1 February 2025 and after that. The submissions can be made in paper or electronic form, including through an email address or portal that the Secretary of the Commonwealth may develop.
Monitor the attorney general’s public awareness campaign, which must be conducted no more than six months after the Act’s 31 July 2025 effective date and must include, without limitation, (i) providing information about the Act on the attorney general’s website and (ii) otherwise informing covered employers of the Act’s requirements. This information could include addressing outstanding issues, like whether the job posting requirements apply to remote work that could be done from Massachusetts and, relatedly, whether job postings can exclude Massachusetts applicants.
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