Redefining the Focus of Federal and State Equal Pay Laws

Many of the equal pay laws include pay transparency provisions, meaning that employers cannot create policies or enforce rules that would restrict an employee’s ability to discuss his or her wages with coworkers. Some of the equal pay amendments maintain exceptions to this rule, and some do not. For example, New York’s law provides two carve-outs. First, New York employees may not discuss or disclose the wages of another employee without that other employee’s consent. Second, New York employees who have access to wage information of other employees as a part of their essential job functions (e.g., human resources or payroll) may not share such wage information with others who do not otherwise have access to such information, except when certain circumstances are present (e.g., an investigation or government inquiry).

The Massachusetts bill, which is still in that state’s legislature, has another unique twist (one that actually passed the Legislature in California earlier this year but was vetoed by California’s governor). The Massachusetts equal pay law would prohibit employers from inquiring into an applicant’s salary history on an application or during interviews for employment. If successful, this provision would prevent an employer from asking applicants how much they earned at their past jobs when considering whether to make an offer of employment to an applicant.