Are Nationwide Pay Transparency and Pay Equity Laws Coming Soon? | OutSolve Blog

In March 2023, Eleanor Holmes Norton introduced two bills addressing pay - the Salary Transparency Act and the Pay Equity for All Act of 2023.

On March 14, 2023, Eleanor Holmes Norton (D-DC) introduced the “Salary Transparency Act,” or H.R. 1599 which has been referred to the House Committee on Education and the Workforce. The proposed legislation would amend the Fair Labor Standards Act (FLSA) and make it unlawful for employers to “fail or refuse to disclose” the “wage or wage range” for job opportunities. Norton indicated that “salary secrecy facilitates both intentional and unintentional pay discrimination and perpetuates the pay gap.” 

The bill has the following main components applicable to both public and private employers: 

• Regardless of size or number of employees, employers would have to include the wage or wage range in all internal and external job postings.  
• The definition of wage range includes “the range of wages, or salaries and other forms of compensation” that the employer “anticipates in good faith relying on in setting the pay” for the job opportunity. This broad definition provides flexibility for what the employer can provide, including, but not limited to, the: (1) budgeted amount for the position, (2) existing pay range, (3) pay range of employees in equivalent positions, or (4) previously determined wage range for the position.   
• If the wage range is not given to the applicant during the interviewing process, it must be provided prior to discussing compensation. 
• Existing employees would be allowed to request and obtain the wage range for their position at any time.   
• The wage range must be supplied to employees at the time of hire and annually thereafter.  
• Includes an anti-retaliation clause which prohibits employers from harming an applicant or an employee for exercising their rights under this bill.   
• Violations would include civil penalties of $5,000 for the first violation and could be increased incrementally by $1,000 for additional violations with a $10,000 cap per violation. A private right of action is available for applicants who experience a violation, including attorney’s fees and injunctive relief, statutory damages between $1,000 and $10,000 or actual damages, whichever is greater.

On the same day, Norton introduced H.R. 1600 – Pay Equity for All Act of 2023 which prohibits prospective employers from asking about an applicant’s prior wage or benefit history when determining compensation. Damages not to exceed $10,000 plus attorneys’ fees could be sought by an employee, applicant or even on behalf of others similarly situated.

In addition to H.R. 1599, Eleanor Holmes Norton also introduced the following pay bills on March 26, 2021; however, they have not made it past the House Committee on Education and Labor.

• H.R. 2243 - Fair Pay Act – would request that if men and women are doing comparable work, they must be paid comparable wages.  This act would build on the Equal Pay Act (EPA) by “allowing women to show that some or all of a pay disparity is based on gender-segregated comparable jobs.”
• H.R. 2242 - Pay Equity for All Act - would prohibit employers from asking job applicants for their salary history before a job or salary offer. This bill passed in the House last year as part of the Paycheck Fairness Act which is still pending.

Norton served as the first woman to chair the Equal Employment Opportunity Commission (EEOC) from 1977 to 1981. During her tenure at EEOC, she was instrumental in writing governmental guidelines for sexual harassment in the workplace at a time when sexual harassment was not considered sex discrimination. As a DC delegate and a lawyer, in 1970 Holmes sued Newsweek Magazine on behalf of women who were not allowed to be reporters but who worked behind the scenes doing much of the work preparing for the stories. She continues her advocacy of women’s rights through these pay bills.

With many state and local governments passing pay equity and pay transparency laws, it is not surprising that legislation has been proposed on the federal level. The Paycheck Fairness Act, introduced on January 28, 2021, passed the House but stalled in the Senate [See – The Paycheck Fairness Act Stalls in the Senate]. On March 9, 2023, U.S Representative Rosa DeLauro and Senator Patty Murray reintroduced the Paycheck Fairness Act. In support of the bill, they presented information showing that the wage “gap exists in every state, regardless of geography, occupation, education, or work patterns.”  

Considering the number of bills introduced at the federal level relating to pay which have either stalled or are still waiting for consideration, OutSolve doesn’t anticipate a quick passage of either of these two new bills introduced by Eleanor Holmes Norton. However, as more states recognize this issue, we will continue to watch for newly introduced, pending or passage of bills at the state and local level.   

OutSolve continues to stress the importance of setting up systems for ensuring that applicants and employees are provided the legally mandated information on job postings, during or prior to a job offer, as well as regularly evaluating pay practices to identify and correct gender and/or race/ethnic inequities. OutSolve provides Pay Equity Analysis Services and other compliance services to assist you.  OutSolve can be reached at info@outsolve.com or by calling 888-414-2410.