BOSTON (WOMENSENEWS)—Massachusetts lawmakers are considering a bill that aims to close the wage gap while also addressing the reasons an employer might legitimately pay two employees different wages.
In many ways the two opposing sides of the bill—which goes beyond the state’s existing equal pay law in seeking broader protections from pay discrimination—are predictable.
Those pushing the bill include State Attorney General Maura Healey and the Massachusetts chapter of the National Organization for Women.
Resistance is led by two business groups, the Massachusetts High Technology Council and the Associated Industries of Massachusetts, or AIM.
But there’s also a surprise factor: the Greater Boston Chamber of Commerce.
The chamber, AIM and other business groups usually meet about once a month to discuss policy issues so they can present a unified front to state legislators on issues that concern the business community.
But James Rooney, the Greater Boston Chamber’s new CEO, has been vocal about wanting to expand the organization’s appeal, particularly to women, minorities and Millennials. In addition to equal pay, the chamber also recently came out in support of legislation that would prohibit discrimination against transgender people in public places.
In a letter supporting the legislation, Rooney praised the bill as the result of thoughtful collaboration among lawmakers, the attorney general and the business community.
“Fifty percent of the Greater Boston workforce is made up of women, yet studies show that even in 2016, women are earning significantly less on average than their male counterparts,” Rooney wrote. “And wage inequality not only affects businesses, it also has a negative impact on families and the overall Massachusetts economy,”
Attorney General Healey praises the Chamber’s support as a game-changer.
‘Pay Discrimination Bad for Business’
“The business community knows that pay discrimination is bad for business and it’s toxic for the culture of a company,” she told Women’s eNews in an email this week. “That’s why we worked with them in putting forth our recommendations for this bill.
Healey described the chamber’s support as vital. “I’m hopeful that this support will help ensure that this legislation is passed soon.”
Massachusetts passed the country’s first equal pay law in 1945. But supporters say the current proposal makes much-needed updates.
It clarifies the meaning of “comparable work,” forbids employers from asking job applicants about salary history, establishes bona fide reasons employers can pay different wages for the same job and protects employees from retaliation if they share salary information with each other.
Proponents also praised the bill for creating an affirmative defense, or legal shield against law suits, for employers who complete a self-evaluation of their pay practices and demonstrate a good faith effort at eliminating pay inequity.
So far, neither House Speaker Robert DeLeo nor Gov. Charlie Baker has publicly expressed a position on the proposed law.
The bill runs some risks of not passing the House. For one thing, it could simply run out of time in the current legislative session ending July 31 if lawmakers push it aside to start working on the budget.
But for now it’s a live fight.
Nai Collymore-Henry, policy and operations manager at MassNOW, said the legislature has considered previous iterations of a pay equity bill, but MassNOW feels this is the strongest version yet.
“Right now the law just has a definition of comparable work that doesn’t necessarily define what comparable is, such as seniority, geographic location, the amount of time dedicated to a job and also the way in which a person does a job as a qualifier for work itself,” Collymore-Henry said. “[The bill] redefines how employers look at these positions people are coming into.”
The bill would also bar employers from asking job applicants for salary history unless a formal job offer has been extended.
Collymore-Henry said that disclosing salary history can sometimes disadvantage workers moving into a salaried position from an hourly one.
In addition to the attorney general, Treasurer Deborah Goldberg also supports the bill.
Opponents Eye Frivolous Lawsuits
Opponents are arguing that while pay equity is certainly a noble goal, the bill is redundant and would invite frivolous lawsuits.
In particular, they say it creates a three-year statute of limitations for claiming a violation under the act and because it would allow the attorney general to bring a single or class-action lawsuit under the law without paying any filing fees.
AIM thinks the wage gap could be closed more effectively by changing corporate culture and getting more girls into STEM fields early in their education.
Opponents also said that in some cases, it could also dissuade employers from paying female employees more under certain commission schemes if those systems do not meet the sniff check for what constitutes a bona fide pay plan.
“The problem is, the legislation doesn’t define what a bona fide pay plan is, which means it goes to either the attorney general or to a lawsuit,” AIM Spokesperson Christopher Geehern said. “What’s essentially going to happen is, the courts are going determine the scope of an appropriate commission system. All of these are economic decisions that companies make. The decisions reflect the value that each person brings to the enterprise and the idea that the AG or the courts are going to determine what is an appropriate compensation system is a scary proposition for a company. We would consider that government overreach.”
The issue of “comparable” work verses two people filling the same function or doing “equal” work is particularly important, Collymore-Henry said. She gave the example of a maid and a janitor, who perform comparable work despite often receiving a large salary difference.
Comparable pay, she added, is simply good business practice. “It creates a more productive working environment, a place where people aren’t afraid to discuss what their job is or what their role is,” she said.
But comparable work is a sticking point with AIM, too.
Geehern asks whether two computer programmers, for instance, should still make the same wages if one programmer knows a newer and more in-demand language than the other.
Neither organization seemed to think the law would disproportionately affect one particular segment or industry over another, but AIM focused its comments on high-paying and tech fields while MassNOW’s comments focused on the benefits particularly to lower-wage workers and employees in service fields.
The proposed legislation lists a number of bona fide reasons an employer could pay two employees a different wage for the same job. Geographic location would be one legitimate reason. Education and training are another. Seniority is yet another bona fide reason—and the bill clarifies that neither family or medical leave, nor time taken off for a pregnancy, can reduce seniority.
An employer can’t knock down an employee’s pay to comply with the law, either.
Pay Transparency Theme
Pay transparency has emerged as a clear theme both in this particular bill and in the ongoing dialog over pay equity. Employers are already forbidden from firing employees for discussing salary information, but equal pay proponents say that in reality, employees who share salary information may face retaliation anyway.
Collymore-Henry recalled a job working for a diner in upstate New York. Shortly after a review, in which her supervisors praised her work ethic and her potential, she learned that some of her male co-workers made substantially more money than she did. But after she broached the subject with her employer, she was fired. Her employer decided that she had difficulty taking directions.
Those are the kinds of stories that MassNOW has been trying to get in front of state lawmakers.
AIM objects to what it views as a lack of clarity on this point. They say it’s fine for employees to share that information with each other, but that the bill is unclear as to whether an employee can compel an employer to share their co-workers’ salary information.
But proponents maintain that pay transparency is important to furthering discussion of the wage gap.
Or as Healey puts it, “Pay transparency is a critical part of this bill because it’s difficult to address a problem if you can’t really identify it and talk about it.”
Pay transparency is also a key underpinning of the Boston Women’s Compact, a voluntary pledge formed under then Mayor Thomas Menino and now signed by more than 100 companies and organizations pledging their commitment to closing the gender gap in Boston. Toward that end, they’ve agreed to anonymously share wage and salary information (broken down by sex, race, job category and seniority) with the city’s Women’s Workforce Council, which will use that information to more accurately assess the wage gap in Boston and recommend further action.
White women in Boston earn about 83 cents on the dollar, a little better than the national average of 77 cents to the dollar, but the wage gap is greater for women of color. For African-American women it’s 56 percent of the income of white men; Latina women earn 44 percent and Asian women earn 67 percent.
In addition to the wage gap, the Women’s Workforce Council, in a report issued in 2013, also raised several other issues relevant to women’s workforce participation, including bias in the workplace, the motherhood penalty and underrepresentation in senior and management positions and on boards of directors.
Along with organizations like Boston Medical Center, State Street and defense contractor Raytheon, the Associated Industries of Massachusetts has also signed onto the compact.
