At the end of its recently concluded session, the Massachusetts Legislature hopped aboard a trend that gives employees and applicants more information about the pay ranges for jobs they are seeking or already hold.
But in doing so, legislators seemingly took to heart the concerns of Associated Industries of Massachusetts and other business leaders, producing a law that is less punitive than its analogs in other parts of the country, according to employer-side attorneys.
“There’s a number of features of this legislation, especially when you compare it to other states that have recently adopted similar laws, that reflect that the Legislature really did take into account the business impact of this bill, which is a great new development,” said Boston attorney Barry J. Miller.
Boston attorney Stephen T. Melnick agrees. “It seems that the Legislature is focused more on compliance than punishment, which is what we all look for,” he said.
Still, employers will have plenty to keep them busy between now and July 31, 2025, when new requirements related to job postings and sharing of salary information will take effect, or next February, when their first set of salary data reports are due.
Multi-state employers face a particular challenge because they will need to account for Massachusetts’ new measure alongside the other laws popping up around the country to ensure that they remain compliant with the law anywhere they have — or potentially could have — workers.
The legislation also requires the Attorney General’s Office to engage in a “public awareness campaign” over the next six months, which lawyers hope will clear up some potentially significant ambiguities in the law.
No ‘feeding frenzy’ in Mass.
When Miller says the Legislature considered the business impact of the new measure, he is talking about provisions like the two-business-day “grace period” after receiving notice of a violation that covered employers will be given to cure any defect before a fine is imposed, he said.
“We get one free warning, which is a significant benefit to the business community, because in some places like Washington state you’re already seeing a feeding frenzy of class action claims brought by lawyers who are collecting material sums of money based on failure to comply with the posting requirements of Washington state’s law,” Miller said.
The Legislature also made clear that no violation of §§105E and 105F will bring potential treble damages pursuant to §150 into play, and that the salary data reports employers will be filing are not subject to the state’s public records law.
The law gives the attorney general exclusive authority to enforce the law. But to some, there is an open question as to whether the door is completely closed to a private right of action.
With respect to the new pay disclosure section, §105F, the Legislature chose not to include subsection (e) among the sections over which the AG has been given exclusive enforcement jurisdiction. Subsection (e) deals with discrimination or retaliation against workers who try to enforce their rights or make a complaint related to pay transparency.
“The law doesn’t say employees have a private right of action [for retaliation and discrimination], but it also doesn’t say that they don’t,” said Southborough, Massachusetts attorney Michelle M.M. De Oliveira.
Boston lawyer Carolyn M. Crowley said her read is that there is no private right of action for retaliation under the pay transparency law.
“I think it’s clear that enforcement is just by the AG, but I could see a plaintiffs’ lawyer taking a different position on that,” she allowed.