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May 9, 2023
The Greater Boston Chamber of Commerce submitted testimony on H.1849, An Act relative to salary range transparency and S.1191, An Act relative to pay range disclosure. Having partnered with the Legislature to support and pass pay equity legislation, the Chamber appreciates the work of the Massachusetts Legislature to address wage inequality. However, the proposals under consideration include broad and ambiguous language making employers’ obligations unclear and difficult to implement, while also exposing them to broad retaliation claims and steep fines. The Chamber encourages the committee to work with employers to address the proposed legislation’s problematic provisions.
Ambiguous Terms There are several key terms contained in H.1849/S.1191 that are ambiguous, broad, or otherwise undefined that will make it difficult or impossible for employers to ensure compliance with the proposed requirements of the legislation.
For example, the definition of “pay range” includes several such terms. To begin, the bill states that the pay range shall include the annual salary range or hourly wage range or other compensation. “Other compensation” is not defined, making it unclear whether benefits, bonuses, overtime, commissions, travel reimbursements, and other potential forms of compensation must be included in a pay range disclosure, and in what form. Whether, and indeed how, these other forms of compensation or benefits must be included in the pay range will affect employers and their ability to compete for talent.
In addition, the definition requires that an employer disclose a range “that the employer reasonably and in good faith expects to pay for such position at that time.” This reasonable and good faith standard is also undefined and does not consider specific circumstances that may factor into salary determinations. Several factors may affect a pay range, including where the position can be performed and the impact of that geographic location, remote vs. in-person work, and part-time vs full-time employment.
This ambiguity continues when the bill references “a particular employment position” in subsections (b) through (d). The bill does not specify the types of employment positions that require posting of salary ranges, including for full-time, part-time, and/or temporary employees. It does not factor in independent contractors or 1-time payments for specific, discrete tasks.
Finally, in subsection (c), the legislation requires employers to offer a pay range to an employee when offered a “promotion” or “transfer” to a new position. Construed broadly, these terms could require an employer to disclose salary ranges with even minor changes to any terms of employment, including small cost of living pay raises, promotions or transfers approved without a formal job posting, transfers approved at the request of the employee, and other circumstances that occur regularly within an employer’s workforce. The Chamber encourages the committee to revisit these examples of broad language to create a clear standard for its requirements and reduce the administrative burden on employers.
Retaliation and Fines Subsection (e) of the legislation as drafted attempts to prohibit discrimination and retaliation against any employee or applicant because they opposed, complained about, initiated a proceeding, or testified about any act or practice made unlawful under the proposed law. However, it is again unclear what persons and practices this provision may impact. The intent may be to protect an employee or applicant that exercises a clear right under the proposal (for example, to protect an employee or applicant that requests a salary range for a job posting or files of a complaint with the Attorney General), but the language goes beyond that traditional form of protection to those that “oppose any act” and “made any complaint” to the “employer, the attorney general, or any other person” or “caused to be instituted any proceeding under or related to this section.”
Retaliation provisions, at a minimum, should be tailored and limited to the specific conduct under the proposed statute, and should protect individuals exercising their rights under that statute. Including “any” complaints to “any person” and including proceedings “related to” the statute is unclear, ambiguous, and exposes employers to unforeseen or unpredictable circumstances unrelated to the conduct this bill aims to regulate. In addition, the inclusion of the term “or discriminate” in subsection (e) departs from most other Massachusetts employment laws. This overly broad and unclear language imposes unclear compliance standards on employers.
The legislation concludes with significant fines for failure to comply with its requirements. While employers appreciate a warning for the first offense, the ambiguity of the drafted proposal raises concerns about such steep fines when the bill’s obligations are not clear and implementable. The Chamber urges the committee to reconsider the fines imposed by this bill and prohibit the collection of multiple damages.
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