Closing the Gap: Massachusetts Bans Screening Candidates Based on Salary

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Massachusetts businesses have two years to comply with a new equal pay law passed by the state legislature on August 1st. In addition to language regarding equal pay for equal work, the law prohibits the practice of screening candidates based on their previous salary and even asking about previous or current salaries during the interview process.

But let’s start with the basics. The law first sets out what “equal pay for equal work” means and what reasonable exceptions can made. Bill S.2107 says that

“No employer shall discriminate in any way on the basis of gender in the payment of wages or other compensation, including benefits and other compensation, or pay any person a salary or wage rates less than the rates paid to employees of a different gender for comparable work.”

However, the law does make exceptions for merit and seniority based pay scales and bonuses, provided that “pregnancy-related condition and protected parental, family and medical leave, shall not reduce seniority.” This is an especially good and hard fought aspect of the law, as many women are set back in their careers by taking maternity leave. While parents out for parental leave will still be out of the loop and perhaps miss out on chances for bonus or promotion, they won’t take the double hit of being put on “pause.” Too, it allays fears that the equal pay law would make it difficult to have a merit or seniority-based pay scale — Massachusetts lawmakers aren’t interested in flattening pay scales, but rather in equalizing opportunities and ferreting out systemic inequalities; the subtler ways that the wage gap is perpetuated. The law is extremely clear on this and other points, which is a boon for HR practitioners who are too often stuck making sense of conflicting laws and regulations.

But the bigger change for many recruiters and hiring managers will be the law’s prohibition against making previous or current salary a factor during the interview process. The law forbids employers from:

  • Screening applicants based on previous or current salary
  • Requiring candidates to stay silent about salary negotiations
  • Seeking salary information from candidate’s previous employers without written permission
  • Retaliate against candidates and employees over salary discussions

In addition to these prohibitions, the law requires that hiring managers be less cagey in discussing salary expectations, relying on the candidate’s worth and not on her previous salaries, and only open the topic as part of a formal offer. This aspect of the law is meant to address two factors in the gender pay gap:

Under the new law, hiring managers must base salary negotiations solely on each individual candidate’s skills and perceived worth — not based on their previous earnings. While this doesn’t eliminate unconscious bias in hiring managers, it does keep the interview process a more neutral space. And it may make women more likely to take professional risks, since taking a pay cut for a passion project won’t have an impact in future salary negotiations. Being able to take time out for maternity leave, an entrepreneurial venture or a passion project without hurting one’s salary trajectory will go a long way to closing the gender wage gap.

You can read the law in full here.

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