The Bay State has become quite active on the employ- ment law front. “California is still further ahead of the curve than Massachusetts, but Massachusetts is trying to catch up,” says Brian Lewis, an attorney with
Jackson Lewis in Boston.
Equal pay. Under amendments to the Massachusetts Equal
Pay Law that will take effect Jan. 1, 2018, employers will not be
allowed to ask about a person’s salary history before making a job
offer or to ban discussions about compensation among employees. But these are not blanket prohibitions. “The exceptions to
the salary inquiry prohibition are interesting, and it remains to
be seen how they will be interpreted,” says Marjory Robertson,
assistant vice president and senior counsel with Sun Life Financial (U. S.) Services Co. Inc. in Wellesley Hills, Mass.
The ne w law will not prohibit candidates from voluntarily dis-
Pay History Bans Are Spreading
closing their past compensation. It is possible that companies may
be able to provide applicants with “voluntary disclosure” forms
to sign relating to salary history, but there could be legal chal-
lenges to this practice on the grounds that the candidate could
feel pressured to disclose salary information, she says. “Further,
if a candidate declined to provide his or her salary history and
was not offered a job, the employer could be at risk for a retalia-
tion claim,” she cautions.
The Massachusetts statute also does not prohibit a company
from seeking to confirm a person’s salary history after com-
pensation has been negotiated and a job offer has been made.
But the utility of that provision is questionable. “It is not clear
why an employer is permitted to verify salary history after an
offer has been made,” Robertson says. “If an employer discov-
ers that an employee made substantially less than the amount
of compensation offered, the employer may not be able to take
any action, since it could be viewed as a violation of the law or
It is also not clear what it means for an offer to include “com-
pensation,” she adds. For example, you could propose to pay a
candidate the same amount he or she previously earned and make
the offer contingent on verification of that figure. “However,
such an approach may be subject to challenge on the grounds
that it defeats the purpose of the statute and that ‘compensation’
literally means including an actual dollar amount in the offer.”
Since the Massachusetts pay equity law was adopted in August 2016, other jurisdictions have moved to enact legislation
relating to pay history.
California adopted a statute in September 2016 that
bans companies from using an applicant’s pay history
information to justify wage disparities between men
and women who do substantially similar work, though
it does not ban inquiries into pay history.
The city of Philadelphia passed a law in December 2016 prohibiting
employers from asking prospective employees about their prior
wages. The ordinance was supposed to take effect in May, but the
U.S. Chamber of Commerce challenged it in court and the city chose
to delay its implementation pending the outcome of the litigation. At
press time, a court had rejected the Chamber’s legal challenge.
New York City in April 2017
approved a statute prohibiting
businesses from inquiring about the
salary history of applicants. It takes
effect Oct. 31.
Oregon in June 2017 enacted a pay
equity law barring employers from
screening based on compensation
history. The salary history ban takes
effect Jan. 1, 2024.
This trend toward prohibiting inquiries about prior compensation will require HR professionals to make dramatic changes
in their recruiting practices, says Marjory Robertson, assistant vice president and senior counsel with Sun Life Financial (U.S.)
Services Co. Inc. In jurisdictions with these laws, HR will need to base compensation offers on the value of the jobs in the
marketplace, which may be challenging to quantify.