A New Posting Requirement for Massachusetts Employers

Salary Transparency

By Michael McAndrew, Esq.

In an effort to increase transparency and equity in wage payment, the Massachusetts Legislature passed, and Gov. Maura Healey signed into law on July 31, H. 4890, “An Act Relative to Salary Range Transparency.”

The act is an extension of employee protections provided in the 2018 Massachusetts Equal Pay Act, a statute that made it unlawful for employers to discriminate on the basis of gender in the payment of wages and to prohibit employers from preventing, discouraging, or reprimanding employees who share wage information. Under the new act, covered employers no longer can keep secret from their employees and prospective employees pay information for positions within their company. The act has wide-ranging reporting and disclosure requirements of salary ranges.

The act’s provisions are twofold. First, it requires that employers disclose pay-range information to current and prospective employees. The act applies to ‘covered employers,’ which are defined as “any employer, public or private, that employs 25 or more employees within the Commonwealth.”

Michael McAndrew

“Under the new act, covered employers no longer can keep secret from their employees and prospective employees pay information for positions within their company. The act has wide-ranging reporting and disclosure requirements of salary ranges.”

Under the act, an employer must disclose the pay range for positions listed in job postings, disclose the pay range for positions offered to current employees as promotions or transfers, and disclose pay-range information to current employees upon request. The act prohibits employers from discharging or retaliating against employees for exercising their rights under the act.

Employers will be required to start complying with these provisions on Oct. 29, 2025. The attorney general is required to conduct, within six months of the act’s passage, a public-awareness campaign regarding the requirements of the act.

Second, the act sets forth a system whereby employers are required to submit annual wage-data reports to the state secretary. The exact type and timing of the report that must be filed with the secretary depends on the size and type of the employer.

For private employers that employ 100 or more employees in the Commonwealth at any time during the prior calendar year that are subject to federal filing requirements of EEO-1 data reports, the employers must submit a copy of the EEO-1 data report to the secretary annually by Feb. 1. Massachusetts employers that are required to file EEO-1 data reports will be required to make their first report under the act by Feb. 1, 2025. Other types of employers, such as public employers, face different filing deadlines and requirements under the act.

Next Steps

After employers submit copies of their EEO data reports, the secretary has until April 1 to report this information to the Executive Office of Labor and Workforce Development. The Executive Office is then required to aggregate the information it receives from the secretary and post it on its website. It is important to know that, while aggregated salary information regarding certain professions will be available on the Executive Office’s website, individual employers’ EEO data reports will not be published. In fact, the act expressly provides that these records are not to be considered ‘public records.’

While this is administratively tedious, employers in Massachusetts must ensure that they comply with both the disclosure and reporting requirements of the act, or they will face heavy administrative fines. The attorney general has exclusive jurisdiction to enforce the wage-disclosure and annual reporting provisions in the act and can impose fines for an employer’s violation of the act and may obtain injunctive or declaratory relief for this purpose.

For a first offense, the employer will be given a warning. For a second offense, the attorney general can impose a fine of up to $500, and for third offenses, fines can be up to $1,000. For fourth and subsequent offenses, penalties are issued pursuant to Massachusetts General Laws chapter 149, section 29C, a violation of which can result in fines between $7,500 and $25,000.

For the first two years that the act is in effect, prior to levying fines for violation of the act, the attorney general is required to provide notice of the violation and give the subject employer two business days to cure the violation. For purposes of the attorney general’s enforcement of job postings, if multiple job postings are made after an initial job posting that violates the act, all posts for the same position that violate the act that are posted within 48 hours of the initial post will be considered a single violation.

Unlike the Massachusetts Equal Pay Act, “An Act Relative to Salary Range Transparency” does not provide for an employee’s private right of action for their unlawful discharge or retaliation by their employer for exercising their rights under the act. An employee may be able to assert such a claim under other discrimination laws or other causes of action. Further guidance on this and many other questions raised by the new law may be given once the provisions of the act become fully effective.

Michael McAndrew is an attorney in the Litigation and Employment Law practices at Bulkley Richardson.