2024 Q3 Edition 50 State Equal Pay Reference Guide What Employers Need to Know about US Equal Pay Laws
1 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024 Dear Clients and Friends, For organizations that operate in multiple states, tracking the ever-changing requirements related to equal pay issues can pose daunting challenges and the growing “ripple effect” of such requirements is being felt across industries and sectors. To simplify the process, we are pleased to provide you with our Eighth Annual 50 State Equal Pay Reference Guide: What Employers Need to Know about US Equal Pay Laws, including a new Pay Transparency Wage Range Disclosure Compendium. This one-stop resource provides answers to the following common questions: • Which classes are protected by the Equal Pay laws? • What type of work must be compared? • May employers ask about salary history? • What are the permissible factors that explain pay differences? • What are the compensation disclosure requirements (including pay reporting)? This guide addresses laws that impact private employers and is based on a review of state laws. This guide also provides information about the life cycle of a pay equity analysis. The information contained in this booklet is purposely condensed and simplified; while it provides a convenient point of reference, always consult with your attorney before making any decisions. For additional information, please email payequity@seyfarth.com. All of the members of Seyfarth’s Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2024 both in the United States and around the globe. We stand with you to support these efforts and look forward to continuing to provide you with the up-to-date resources you need. We hope this booklet proves a useful and informative tool. It does not constitute legal advice or create an attorney-client relationship. Please do not hesitate to contact payequity@seyfarth.com if you have any questions.
WWW.SEYFARTH.COM | 2 Expanding Influence of Equal Pay Requirements Since 1963, the Equal Pay Act has prohibited pay discrimination on the basis of sex. Since that time, there has been a wave of shareholder initiatives and modifications to state equal pay laws. The ripple effect has been far reaching. In 2024 and beyond, we see more litigation and enhanced pay reporting laws. FEDERAL LAW 1963 The Equal Pay Act of 1963 was signed into law, followed by Title VII in 1964. The EPA prohibits pay discrimination on the basis of sex. SHAREHOLDER INITIATIVES 2015 Amidst a wave of activism, including from high profile figures and celebrities, 2015 saw the emergence of shareholder initiatives asking companies to disclose pay differences between men and women. STATE LAWS 2016 Laws at the state level boomed in 2016. California, New York, and Massachusetts led the charge, and became the first states to adopt more onerous laws. Other states followed suit and many also enacted salary history bans and pay scale disclosure laws. LITIGATION 20182023 In the last few years hundreds of pay discrimination cases were filed. This number is projected to go up. FOCUS ON PAY TRANSPARENCY 2024 and Beyond The legal landscape continues to rapidly change, as more countries around the globe enact equal pay reporting laws.
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? AL Alabama Sex, race Equal work within the same establishment on jobs the performance of which requires equal skill, effort, education, experience, and responsibility, and which are performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex or race. While there is no outright ban, employers may not refuse to interview, hire, promote, or employ an applicant for employment, or retaliate against an applicant for employment because the applicant does not provide wage history. Wage history means the wages paid to an applicant for employment by the applicant’s current or former employer. AK Alaska Gender Work of comparable character or work in the same operation, business, or type of work in the same locality. Not addressed in statute, but addressed in regulations. It is a defense to a complaint of unlawful discrimination to establish by clear and convincing evidence that a distinction in employment prohibited by AS 18.80.220(a) (1) is required by business necessity or the reasonable demands of the position. “Business necessity” or “reasonable demands of the position” means that the distinction is necessary to the safe and efficient operation of the business; the business purpose is sufficiently compelling to override any disproportionate impact on an individual protected by AS 18.80.220(a), and the challenged business practice efficiently carries out the business purpose it is alleged to serve, and there is no available or acceptable policy or practice which would better accomplish the business purpose advanced or accomplish it equally well with less discriminatory impact on the complainant. No state law AZ Arizona Gender Same quantity and quality of the same classification of work in the same establishment. Difference in seniority, length of service, ability, skill, difference in duties or services performed; difference in the shift or time of day worked, hours of work; or restrictions or prohibitions on lifting or moving objects in excess of specified weight, or other reasonable differentiation other than sex, when exercised in good faith. No state law AR Arkansas Sex Comparable work If pursuant to seniority, experience, training, skill, ability, differences in duties and services performed, differences in the shift or time of the day worked, or any other reasonable differentiation except difference in sex. No state law 3 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting AL Alabama No state law No local provisions located No pay reporting AK Alaska No state law No local provisions located No pay reporting AZ Arizona No state law No local provisions located No pay reporting AR Arkansas No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 4
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? CA California Gender, race, ethnicity Substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. If based on seniority system, merit system, system that measures earnings by quantity or quality of production, or bona fide factor other than protected category, such as education, training, or experience. Must be applied reasonably and other factors must account for the entire wage differential. Defense does not apply if alternative business practice exists that would serve the same business purpose without producing the wage differential. An applicant or employee’s prior salary will not justify disparities in compensation; however, this provision cannot be interpreted to mean that an employer may not make a compensation decision based on a current employee’s existing salary, so long as wage differential otherwise permissibly justifiable. No, unless offered voluntarily and without prompting, employers may not seek an applicant’s salary history or rely on it to determine whether to offer employment or what salary to offer. 5 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting CA California Employers must include pay scale on job postings and upon applicant and/ or employee’s request. “Pay scale” is defined as the salary or hourly wage range that the employer reasonably expects to pay for the position. No local provisions located Employers with 100 or more US employees and at least 1 employee in California are required to submit an annual pay report to Calilfornia Civil Rights Department including W-2 wages and hours worked. Employers must also report the mean and median hourly rate, number of remote employees within California, number of remote employees outside California, and number of employees that do not work remotely, by each combination of race, ethnicity, and sex. In addition to the above, employers that have 100 or more US workers hired through labor contractors and at least 1 labor contractor worker in California must produce data on W-2, hours worked, mean and median hourly rate, number of remote employees within California, number of remote employees outside California, and number of employees that do not work remotely, and race/ethnicity and gender information in a separate Labor Contractor Employee report. WWW.SEYFARTH.COM | 6
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? CO Colorado Sex or sex in combination with disability, race, creed, color, sexual orientation, gender identity, gender expression, religion, age, national origin, or ancestry Substantially similar work, regardless of job title, based on a composite of skill, effort, and responsibility. If based on a seniority system; a merit system; a system that measures earnings by quantity or quality of production; the geographic location where the work is performed; education, training or experience reasonably related to the work in question; and travel, if the travel is a regular and necessary condition of the work performed. Employers relying on these factors must also demonstrate they are applied reasonably, account for the entire wage rate differential, and that prior wage history was not relied on to justify a disparity in current wage rates. No. Employers may not inquire about a prospective employee’s wage history or rely on a prospective employee’s wage history to determine a wage rate. Employers are also prohibited from discriminating or retaliating against a prospective employee for failing to disclose such wage history. 7 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting CO Colorado Employer must in good faith disclose the following in the notification of each job opportunity: (1) the hourly or salary compensation or the range of the hourly or salary compensation; (2) a general description of the benefits and other compensation applicable to the job opportunity; (3) the date the application window is anticipated to close; and (4) how to apply for the job opportunity. Job Opportunity Notices: Employers must make reasonable efforts to announce, post, or otherwise make known each job opportunity to all Colorado employees. “Job opportunity” means “a current or anticipated vacancy for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts.” “Job opportunity” does not include career development or career progression. If an employer is only physically located outside of Colorado and has fewer than fifteen employees working in Colorado, all of whom work only remotely, then, through July 1, 2029, the employer is only required to provide notice of remote job opportunities. Post-Selection Notices: Employer must make reasonable efforts to announce, post, or otherwise make known the following information to, at a minimum, the Colorado employees with whom the employer intends the selected candidate to work with regularly: (1) the name of the candidate selected for the job opportunity; (2) the selected candidate’s former job title if selected while already employed by the employer; (3) the selected candidate’s new job title; and (4) information on how employees may demonstrate interest in similar job opportunities in the future, including identifying individuals or departments to whom the employees can express interest in similar job opportunities. Career Progression Notices: For positions with “career progression,” an employer shall disclose and make available to all eligible Colorado employees the requirements for career progression, in addition to each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement. “Career progression” means a regular or automatic movement from one position to another based on time in a specific role or other objective metrics.” No local provisions located No pay reporting WWW.SEYFARTH.COM | 8
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? CT Connecticut Sex Comparable work when viewed as a composite of skill, effort, and responsibility performed under similar working conditions. Pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential system based upon a bona fide factor other than sex, including, but not limited to, education, training, experience, credential, skill, or geographic location. Employers must show that such factors are not based on or derived from a sex-based differential in compensation and are job-related and consistent with a business necessity. Employers may not use this defense if employees demonstrate that an alternative employment practice exists that would serve the same business purpose without producing the pay differential and the employer refused to adopt the practice. No, unless a prospective employee has volunteered such information or unless the request is pursuant to any federal or state law that specifically authorizes the disclosure or verification. The law does not prohibit an employer from inquiring about components of a prospective employee’s compensation structure, so long as the employer does not inquire about the value of the elements of such compensation structure. DE Delaware Sex Equal work that requires equal skill, effort, and responsibility under similar working conditions in the same workplace. If based on a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or any other factor other than sex; provided, that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with this subsection, reduce the wage rate of any employee. No, employers cannot seek the compensation history of an applicant or seek the same from the applicant’s current or prior employer prior to offer acceptance (after offer acceptance an employer may request only for purposes of confirming compensation history). Employers cannot screen applicants based on their compensation history, including that compensation history meets minimum or maximum criteria. 9 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting CT Connecticut Employers must provide an applicant for employment the wage range for a position for which the applicant is applying, upon the earliest of (a) the applicant’s request, or (b) prior to or at the time the applicant is made an offer of compensation. Employers must provide a current employee the wage range for the employee’s position upon (a) the hiring of the employee, (b) a change in the employee’s position with the employer, or (c) the employee’s first request for a wage range. “Wage range” means the range of wages an employer anticipates relying on when setting wages for a position, and may include reference to any applicable pay scale, previously determined range of wages for the position, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position. No local provisions located No pay reporting DE Delaware No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 10
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? DC District of Columbia No state Equal Pay law; pay discrimination prohibited under nondiscrimination statute N/A N/A No, employers cannot seek the wage history of a prospective employee from a person who previously employed the individual. Employers cannot screen prospective employees based on their wage history, including by requiring that the wage history satisfy minimum or maximum criteria or by requiring the prospective employee to disclose their wage history as a condition of being interviewed or continuing to be considered for an offer of employment. The term “wage history” is defined as “information related to compensation an employee has received from other or previous employment.” Further, the definition of “compensation” is expansive and includes “all forms of monetary and nonmonetary benefits an employer provides or promises to provide an employee in exchange for the employee’s services to the employer.” FL Florida Sex Equal work on jobs the performance of which require equal skill, effort and responsibility, performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any reasonable factor other than sex when exercised in good faith. No state law GA Georgia Sex Equal work requiring equal skill, effort and responsibility, performed under similar working conditions within the same establishment. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex. No state law HI Hawaii Sex, Race, Gender Identity or Expression, Sexual Orientation, Age, Religion, Color, Ancestry, Disability, Marital Status, Arrest and Court Record, Reproductive Health Decision, or Domestic or Sexual Violence Victim Status Substantially similar work on jobs the performance of which require equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment. If resulting from a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide occupational qualification; or any permissible factor other than any of the protected categories. No, unless offered voluntarily and without prompting, employers may not inquire about, search public records for, or rely on salary history of applicants in the hiring process. Employer may engage in discussions (without inquiry about salary history) about salary or benefit expectations. If applicant voluntarily and without prompting discloses salary history, employer may consider the salary history and may verify such history. ID Idaho Sex Comparable work on jobs that have comparable requirements relating to skill, effort, and responsibility at the same establishment. If differential based on established seniority systems or merit increase systems that do not discriminate based on sex. No state law 11 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting DC District of Columbia Employers must post the minimum and maximum projected salary or hourly pay in all job listings and position descriptions advertised. In stating the minimum and maximum salary or hourly pay for the position, the range shall extend from the lowest to the highest salary or hourly pay that the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity. Employers must disclose to prospective employees the existence of health care benefits that employees may receive before the first interview. The law does not define “first interview.” If not provided in disclosures, prospective employees may inquire about these disclosures. Employers must post a notice in its workplace notifying employees of their rights under the Act. No local provisions located No pay reporting FL Florida No state law No local provisions located No pay reporting GA Georgia No state law No local provisions located No pay reporting HI Hawaii Employers must include hourly rate or salary range reasonably reflecting the actual expected compensation on job listings, except job listings for: (1) positions that are internal transfers or promotions with a current employer; (2) public employee positions for which salary, benefits, or other compensation are determined pursuant to collective bargaining; or (3) positions with employers having fewer than fifty employees. No local provisions located No pay reporting ID Idaho No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 12
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? IL Illinois Sex, African-American Same or substantially similar work on jobs the performance of which require substantially similar skill, effort, and responsibility, and which are performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex or a factor that would constitute unlawful discrimination under the Illinois Human Rights Act, as long as that factor is: (1) not based on or derived from a differential in compensation based on sex, race, or another protected characteristic; (2) is job related and consistent with business necessity; and (3) accounts for the differential in pay. No, Illinois employers are prohibited from (1) screening job applicants based on their wage or salary history; (2) requiring that an applicant’s prior wages satisfy minimum or maximum criteria; and (3) requesting or requiring as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment that an applicant disclose prior wages or salary. Unless a matter of public record or if the job applicant is a current employee, employers are also prohibited from seeking the salary, including benefits or other compensation or salary history, of a job applicant from any current or former employer. However, an employer will not violate the statute when a job applicant voluntarily and without prompting discloses such information, provided the employer does not consider or rely on the voluntary disclosures as a factor in potential employment, compensation, or other benefits. Employers are not barred from engaging in discussions with an applicant about his/her expectations with respect to wage or salary, benefits, and other compensation. IN Indiana Sex Equal work on jobs the performance of which require equal skill, effort and responsibility, and which are performed under similar working conditions. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any other factor other than sex. No state law IA Iowa Age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on a factor other than sex. No state law KS Kansas Sex Work on jobs requiring equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on a factor other than sex. No state law KY Kentucky Sex Comparable work on jobs within the same establishment that have comparable requirements relating to skill, effort, and responsibility. If pursuant to established seniority systems or merit increase systems, which do not discriminate on the basis of sex. No state law LA Louisiana No state Equal Pay law that applies to private employers; pay discrimination prohibited under nondiscrimination statute N/A N/A No state law 13 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting IL Illinois Effective 1/1/25, employers must include pay scale and benefits information in any job postings for positions that (1) will be physically performed, at least in part, in Illinois; or (2) will be physically performed outside of Illinois, but the employee reports to a supervisor, office, or other work site in Illinois. If a public or internal posting for the job, promotion, transfer, or other employment opportunity has not been made available to the applicant, the employer must disclose pay scale and benefits information (1) prior to any offer or discussion of compensation; and (2) at the applicant’s request. “Pay scale and benefits” means the wage or salary, or the wage or salary range, and a general description of the benefits and other compensation, including, but not limited to, bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position, set by reference to any applicable pay scale, the previously determined range for the position, the actual range of others currently holding equivalent positions, or the budgeted amount for the position, as applicable. Employers must announce, post, or otherwise make known all opportunities for promotion to all current employees no later than 14 calendar days after the employer makes an external job posting for the position, except for positions in the State of Illinois workforce designated as exempt from competitive selection. No local provisions located Employers with more than 100 employees in Illinois, who are also required to file a federal EEO-1 Report, must apply to the Illinois Department of Labor for an Equal Pay Registration Certificate. The application includes the submission of employee-level compensation data, and a signed verification of compliance with certain state and federal anti-discrimination laws. IN Indiana No state law No local provisions located No pay reporting IA Iowa No state law No local provisions located No pay reporting KS Kansas No state law No local provisions located No pay reporting KY Kentucky No state law No local provisions located No pay reporting LA Louisiana No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 14
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? ME Maine Sex, Race Comparable work on jobs that have comparable requirements relating to skill, effort, and responsibility in the same establishment. If pursuant to established seniority systems or merit increase systems or difference in the shift or time of the day worked that do not discriminate on the basis of sex or race. No, employers are prohibited from asking about a job candidate’s compensation history until after a job offer including compensation terms has been presented. In addition, employers may not directly ask a candidate’s current or former employer for salary information or stop current employees from discussing their own or another employee’s wages. Employers can confirm a candidate’s past pay if the candidate voluntarily discloses it, and the law does not apply if an employer “inquires about compensation history pursuant to any federal or state law that specifically requires the disclosure or verification of compensation history for employment purposes.” MD Maryland Sex and gender identity Effective 10/1/24: Sex, gender identity, race, religious beliefs, sexual orientation For employees in the same establishment, work of comparable character or work in the same operation, in the same business, or of the same type. If based on a seniority system that does not discriminate on the basis of sex or gender identity; a merit increase system that does not discriminate on the basis of sex or gender identity; jobs that require different abilities or skills; jobs that require the regular performance of different duties or services; work that is performed on different shifts or at different times of day; a system that measures performance based on a quality or quantity of production; or a bona fide factor other than sex or gender identity, including education, training, or experience, in which the factor is not based on or derived from a gender–based differential in compensation, is job related with respect to the position and consistent with a business necessity, and accounts for the entire differential. No, employers are prohibited from retaliating against or refusing to interview, hire, or employ any job applicant who either (a) did not provide wage history on a job application, or (b) who requested information about the wage range for the job to which the applicant applied. Employers are also prohibited from relying on the applicant’s wage history as a way to screen job applicants for the position, or when determining the wages for the applicant if that person is hired. Employers are further prohibited from seeking the wage history of an applicant either orally, in writing, or through another employee, an agent, or from the applicant’s current or former employer. However, after an applicant has received an initial offer of employment that includes a specific compensation figure, an employer may rely on any wage history voluntarily provided by the applicant to support a wage offer higher than the initial wage offer or seek to confirm the wage history voluntarily provided by the applicant to support the higher wage offer. These additional exceptions, however, are subject to the additional restriction that the higher wage may not create a pay differential based on sex and/or gender identity. 15 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting ME Maine No state law No local provisions located No pay reporting MD Maryland Upon request, the employer must provide to a job applicant the wage range for the position to which the applicant applied. Effective 10/1/24, employers must disclose in each public or internal posting for each position the wage range and a general description of benefits and any other compensation offered for the position. If a public or internal posting for a position was not made available to an applicant for the position, the employer must disclose to the applicant the wage range and a general description of benefits and any other compensation offered for the position before a discussion of compensation is held with the applicant and at any other time upon request from the applicant. “Wage range” means the minimum and maximum hourly rate or minimum and maximum salary for a position, set in good faith by reference to: (1) any applicable pay scale, (2) any previously determined minimum and maximum hourly rate or minimum and maximum salary for the position, (3) the minimum and maximum hourly rate or minimum and maximum salary of an individual holding a comparable position at the time of the posting, or (4) the budgeted amount for the position. No local provisions located No pay reporting WWW.SEYFARTH.COM | 16
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? MA Massachusetts Gender Comparable work, defined as work that is substantially similar in that it requires substantially similar skill, effort, and responsibility and is performed under similar working conditions; provided however, that a job title or job description alone shall not determine comparability. If based upon the following: a system that rewards seniority with the employer (provided, however, that time spent on leave due to a pregnancyrelated condition and protected parental, family and medical leave, shall not reduce seniority); a merit system; a system which measures earnings by quantity or quality of production, sales, or revenue; the geographic location in which a job is performed; education, training or experience to the extent such factors are reasonably related to the particular job in question; or travel, if the travel is a regular and necessary condition of the particular job. A pay difference will be permissible under MEPA if the entire difference is justified by one of these factors, or by a combination of these factors. MEPA does not recognize any other valid reasons for variations in pay between men and women performing comparable work. Note: Noticeably absent from AG guidance regarding defenses to pay differentials is the catch-all “any reason other than gender” defense that exists under the federal EPA and many other state equal pay laws. No. Generally, employers cannot seek salary history from a prospective employee or the prospective employee’s current or former employer. Under two limited exceptions, an employer may request salary history. The first exception is if a prospective employee has voluntarily disclosed salary history information, then an employer can confirm prior wages or salary or permit a prospective employee to confirm prior wages or salary. The second exception is if an offer of employment with compensation has been made, then an employer may seek or confirm a prospective employee’s wage or salary history. Additionally, employers cannot require that prior wage or salary history meet certain criteria, and prior wages are not a defense to an equal pay complaint. MI Michigan Sex Equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. If payment is based on one or more of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; or a differential based on a factor other than sex. Yes. State law prohibits local jurisdictions from enacting salary history ban laws. 17 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting MA Massachusetts No state law No local provisions located No pay reporting MI Michigan No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 18
Life Cycle of an Equal Pay Analysis Is your organization considering undertaking a proactive pay analysis? Changes to state and federal laws in the US and globally make undertaking such an analysis a wise decision and a key risk mitigation priority for your organization. Initial Contact: Identify Goals and Protect the Privilege We will kick off the analysis by first identifying your organization’s key goals and objectives, including whether to coordinate the timing of the analysis with any typical annual review process. We will also identify the appropriate and right-sized internal and external resources necessary to conduct the analysis. Before the substantive components of the project begins, our Pay Equity attorneys will work with you to implement attorney-client privilege protocols to safeguard the analysis to the maximum extent possible. Team Kick-Off Call: Identify Scope and Resources During our first discussion with the audit, we will define the scope of the analysis, including identifying the workforce and the components of pay under review. In order to better understand your organization, we will ask for information about compensation structure and pay philosophy and discuss the drivers of employee compensation. Together, we will determine the most appropriate way to group employees for the statistical analysis and identify the job-related factors that are relevant to employee pay. Seyfarth’s Pay Equity team can guide you through this process by developing an analysis that evaluates the key components of pay relevant to your organization. We will partner with you to model the compensation practices for your workforce, or you may choose to target a subset of those employees. The analysis will be designed to align with your organization’s objectives, identify and address unexplained differences in pay and ensure that your organization’s practices align with stated business policies and priorities. Together, we will guide you through the life cycle of a pay analysis: 1 2 Identify Litigation Risks and Possible Mitigation Strategies By comparing the organization’s compensation structure with industry-specific litigation trends, we can often identify potential drivers of litigation risk and mitigation strategies. Even small changes to policies or systems can significantly impact the defense of an equal pay lawsuit. 3 19 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Gather the Data Our next step will be to partner with the key stakeholders responsible for data collection and maintenance (e.g., HRIS team) to gather relevant data regarding employee pay from the organization’s electronic and physical data systems. Because the key data to be analyzed (such as time with the organization, time in role, job, grade/level, date of hire, performance metrics, and, of course, pay information) may be stored in a variety of systems, we will suggest efficient ways to gather the data. Initial Statistical Analysis Once we have gathered the data, we will partner with statistical experts to conduct the statistical analysis. We will interpret the results and identify any groups identified for further review. 5 4 Deeper Dive and Further Analysis Often the initial analysis brings to light errors in the data, individual employees who were slotted in the wrong job or level, or additional factors that drive employee compensation that were not identified initially. We will help your organization identify these issues by leveraging the full force of the statistical tools to identify potential employees or groups of employees that are driving any apparent disparities. We can then work with you to explore additional factors that we may wish to include in the statistical model and data errors that need to be addressed in the further analysis. 6 Potential Pay Adjustments and Reclassifications After the full investigation of pay differences is complete, we will provide advice related to mitigation strategies if needed. We will present our assessments and preliminary recommendations, and will work with you to develop solutions that stand the greatest chance of success in light of applicable legal, operational, and corporate-culture considerations and constraints. These recommendations may include pay adjustments or reclassification of employee levels or job titles. 7 Potential Changes to Policies and Practices After reflection on the results of the assessment, we may provide additional recommendations with respect to modifications to policies or practices regarding hiring and starting pay, performance reviews, promotions and bonuses in order to best position the organization for future compliance. 8 Follow-Up After the analysis is complete, we will work with your organization to identify desirability and frequency of routine follow-up analysis, including real-time analysis of pay and promotion decisions. There is no one-size fits all with respect to the analysis or follow-up—we have seen nearly every possible pay issue and are able to provide real-time recommendations on how to ensure that your pay practices are in line with your corporate culture and business objectives under the relevant legal framework. 9 WWW.SEYFARTH.COM | 20
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? MN Minnesota Sex Jobs that require equal skill, effort and responsibility, and which are performed under similar working conditions. If payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex. Employers may not inquire into, consider, or require disclosure from any source the pay history of an applicant for employment for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant. “Pay history” means “any prior or current wage, salary, earnings, benefits, or any other compensation about an applicant for employment.” The general prohibition against inquiring into the pay history of an applicant does not apply if the job applicant’s pay history is a matter of public record under federal or state law, unless the employer, employment agency, or labor organization sought access to those public records with the intent of obtaining pay history of the applicant for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant. Employers can still provide information about the wages, benefits, compensation, or salary offered in relation to a position, and inquire about or otherwise engage in discussions with an applicant about the applicant’s expectations or requests with respect to wages, salary, benefits, or other compensation. MS Mississippi Sex Equal work on a job, the performance of which requires equal skill, education, effort and responsibility, and which is performed under similar working conditions in the same establishment. If payment is made pursuant to differential based on a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or any other factor other than sex, including, but not limited to, the salary history or continuity of employment history demonstrated by the employee as compared to employees of the opposite sex in the same establishment, the extent to which there was competition with other employers for the employee’s services as compared to employees of the opposite sex in the same establishment, and the extent to which the employee attempted to negotiate for higher wages as compared to employees of the opposite sex in the same establishment. No state law 21 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting MN Minnesota Effective 1/1/25: Employers must include in each posting for each job opening with the employer the starting salary range, and a general description of all of the benefits and other compensation, including but not limited to any health or retirement benefits, to be offered to a hired job applicant. If the employer does not plan to offer a salary range, it must list a fixed pay rate. “Salary range” means the minimum and maximum annual salary or hourly range of compensation, based on the employer’s good faith estimate, for a job opportunity of the employer at the time of the posting for such opportunity. No local provisions located No pay reporting MS Mississippi No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 22
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? MO Missouri Women Same quantity and quality of the same classification of work in the same establishment. Based upon a difference in seniority, length of service, ability, skill, difference in duties or services performed, difference in the shift or time of day worked, hours of work, or restrictions or prohibitions on lifting or moving objects in excess of specified weight, or other reasonable differentiation, or factors other than sex, when exercised in good faith. No state law MT Montana Women Equivalent service or form the same amount or class of work or labor in the same industry, school, establishment, office, or place of employment. Not addressed No state law NE Nebraska Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to: an established seniority system; a merit increase system; or a system which measures earning by quantity or quality of production; or any factor other than sex. No state law NV Nevada Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; a merit system; a compensation system under which wages are determined by the quality or quantity of production; or a wage differential based on factors other than sex. No. An employer or an employment agency shall not, orally or in writing, personally or through an agent: (a) seek the wage or salary history of an applicant for employment; (b) rely on the wage or salary history of an applicant to determine: (1) whether to offer employment to an applicant; or (2) the rate of pay for the applicant; or (c) refuse to interview, hire, promote or employ an applicant, or discriminate or retaliate against an applicant if the applicant does not provide wage or salary history. NH New Hampshire Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions. If made pursuant to: a seniority system; a merit or performance-based system; a system which measures earnings by quantity or quality of production; expertise; shift differentials; or a demonstrable factor other than sex, such as education, training, or experience. No state law 23 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
Jurisdiction Statewide Salary Range Disclosure Requirements Local Jurisdiction Salary Range Disclosure Requirements Statewide Pay Reporting MO Missouri No state law No local provisions located No pay reporting MT Montana No state law No local provisions located No pay reporting NE Nebraska No state law No local provisions located No pay reporting NV Nevada An employer or an employment agency, must provide an applicant for employment, who has completed an interview for a position, the wage or salary range or rate for the position. An employer or an employment agency, must provide the wage or salary range or rate for a promotion or transfer to a new position if an employee has: (1) applied for the promotion or transfer; (2) completed an interview for the promotion or transfer or been offered the promotion or transfer; and (3) requested the wage or salary range or rate for the promotion or transfer. No local provisions located No pay reporting NH New Hampshire No state law No local provisions located No pay reporting WWW.SEYFARTH.COM | 24
Jurisdiction Equal Pay Law Protected Class(es) Type of Work Compared Permissible Factors for Pay Differential Salary History Inquiries Permitted? NJ New Jersey Race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability, atypical hereditary cellular or blood trait of any individual, and liability for service in the U.S. armed forces Substantially similar work, when viewed as a composite of skill, effort, and responsibility. A seniority system, a merit system, or a bona fide factor other than a protected characteristic, such as education, experience, training, or the quantity or quality of production so long as it is job-related, and based on a legitimate business necessity, and if the employer demonstrates the factor is not based on, and does not perpetuate, a differential in compensation based on sex or any other characteristic of members of a protected class. The bona fide factor must be applied reasonably, and explain the entire pay differential. The factor will not apply if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential. No, employers may not ask job applicants about their salary history, including prior wages, salary, commission, benefits or any other current or previous compensation. Employers may verify and consider salary history if an applicant voluntarily, without prompting or coercion, provides the information. An employer may not use an applicant’s refusal to volunteer salary history information as a consideration in hiring decisions. The law does not apply to internal transfers or promotions, when a federal law or regulation requires that salary history be disclosed, or when an employer is considering an incentive or commission component as part of the total compensation package. NM New Mexico Sex Equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions in the same establishment. If pursuant to a seniority system; merit system; or system that measures earnings by quantity or quality of production. Employers may not inquire into, consider, or require disclosure from any source the pay history of an applicant for employment for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant. “Pay history” means “any prior or current wage, salary, earnings, benefits, or any other compensation about an applicant for employment.” The general prohibition against inquiring into the pay history of an applicant does not apply if the job applicant’s pay history is a matter of public record under federal or state law, unless the employer, employment agency, or labor organization sought access to those public records with the intent of obtaining pay history of the applicant for the purpose of determining wages, salary, earnings, benefits, or other compensation for that applicant. Employers can still provide information about the wages, benefits, compensation, or salary offered in relation to a position, and inquire about or otherwise engage in discussions with an applicant about the applicant’s expectations or requests with respect to wages, salary, benefits, or other compensation. 25 | 50 STATE EQUAL PAY REFERENCE GUIDE AS OF JULY 2024
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