Jun 17 2021
You may have heard that, last week, Governor Lamont signed into law the Act Concerning the Disclosure of Salary Range for a Vacant Position. The title of the law is a mouthful, but what it does for employees across the State is quite simple. It modifies two existing wage transparency laws (Conn. Gen. Stat. §§ 31-40z and 31-75) and creates a few new employee rights, too.
Q: Who does the law affect?
A: If you are an employee, independent contractor, or anyone else permitted to work for an individual, private employer, state employer or a political subdivision that employs at least one person, this law applies to you. Really, the only people who are not covered are those who work for the federal government or are self-employed. Let’s refer to anyone covered under the Act as an “employee.”
Q: How does the law (and its predecessors) affect current Employees?
A: The employer is not allowed to:
- Prohibit employees from talking about their wages or another employee’s wages when those wages were voluntarily disclosed;
- Prohibit employees from asking each other about their wages;
- Require employees to waive their rights to talk or ask about each other’s wages;
- Fire, discipline, discriminate against, or retaliate against any employee that talks about their wages or another employee’s wages when those wages were voluntarily disclosed;
- Fire, discipline, discriminate against, or retaliate against any employee that asks about another Employee’s wages; or
- Fail or refuse to disclose to an employee the “wage range” for the position (a) upon hiring the employee, (b) upon changing the employee’s position, or (c) whenever the employee first requests the “wage range” of the position.**
Notably, the law defines “wage range” as any range the employer anticipates relying on when setting the position’s wages. Examples include (1) a pay scale, (2) a previously determined range, (3) the actual range for employees who currently hold a comparable position, or (4) the budgeted amount for the position.
Q: How does the Act impact prospective employees?
A: The employer is not allowed to:
- Ask or direct a third party (such as a headhunter) to ask about a prospective Employee’s wage and salary history unless the Employee voluntarily discloses that information.
There are two exceptions. First, this rule does not apply when federal or state law requires disclosure of such information for employment purposes. Second, an employer is allowed to ask about an employee’s compensation structure as long as it does not ask about the values. We interpret this to mean that an employer is allowed to ask, for example, the percentage or ratio of a prospective Employee’s salary versus commission—but the employer cannot ask about the actual dollar values of the salary versus commission.
- Fail or refuse to disclose to an applicant the “wage range” of the position either upon (a) the applicant’s request or (b) before or at the time the offer is made, whichever is earlier.
- Fail or refuse to disclose to disclose to an employee the “wage range” for the position (a) upon hiring the employee, (b) upon changing the employee’s position, or (c) whenever the employee first requests the “wage range” of the position.**
**Note that this “wage range” language is new. It is important because it means that the employer is now required to disclose “wage range” information when prompted either during employment or during the application process.
Q: What rights does the employer have?
A: An employer is not required to disclose the amount of wages it pays any individual employee.
Q: What rights do current and prospective Employees have if the employer violates the Act?
A: The simple answer is an employee can file a lawsuit for money damages within two years for any violation of their rights described above. An employee’s money damages can include compensatory damages (income loss), attorneys’ fees and costs, punitive damages, and any equitable relief the court finds necessary.
Q: Is there anything else the Act does that I should know about?
A: Yes! The Act also ensures that employees who perform comparable work cannot be paid differently because of their sex. This new language – comparable work – replaces the previous language of “equal work.” Why is this significant? It now means that equal pay rights apply to Employees who perform “comparable work” even if their positions are not the exact same. This more lenient standard will typically be easier to prove and, hopefully, will help decrease the gender wage gap.
When employees perform comparable work but receive different pay, it must be due to (1) a seniority system; (2) a merit system; (3) a system that measures earnings by production; or (4) a system based on a bona fide factor other than sex, like education, training, credentials, skill, geographic location, or experience. The “bona fide” factor cannot be sex-based and is not available when there’s a better, more equal alternative.
Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in Employment Law
Tagged Elisabeth Lee