A salary on a scrap of paper
In one of my previous jobs, the anticipated salary was pencil-written on a torn-off corner of paper and slid across the table during the first interview. That sounds like the habit of a shady employer, but this one was very much by the book and there was nothing legally wrong with it, even if the practice was a bit odd. But that was more than 10 years ago, and the same practice today would likely run afoul of pay transparency rules, which put the number in the job posting before anyone applies. These are the rules that require pay ranges in job postings, prohibit asking applicants what they earned in past jobs, and protect employees who discuss their pay.
Three rules that do most of the work
Pay transparency law sounds like one rule, but it is three, and Massachusetts and the District of Columbia treat each of them differently. They can be summarized as follows:
Pay range disclosure: The duty to state a good-faith minimum and maximum pay in a job posting.
Wage history ban: The duty not to screen applicants by what they earned in the past, or to ask their current or former employers.
Pay secrecy and retaliation: The duty not to require employees to keep pay confidential, and not to punish them for discussing it or complaining about it.
The first question for any nonprofit is which of these rules reaches it at all. The answer is simple in D.C. and unsettled in Massachusetts.
Which law applies to your organization
D.C.
D.C. reaches nearly every nonprofit with a presence in the District. The Wage Transparency Act defines an employer as any individual, firm, association, or corporation that employs at least one employee in the District, and it excludes only the District and federal governments. D.C. Code § 32-1451. There is no carve-out for charitable, educational, or religious organizations. So, a nonprofit with one remote worker who lives in D.C. is covered, and the amended Act has applied since June 30, 2024. D.C. Law 25-138, § 3.
Massachusetts
Massachusetts is harder, because the answer turns on one word. The state regulates these subjects through three sections of chapter 149: the pay range law (section 105F, for employers with 25 or more employees), the Equal Pay Act, which also holds the wage history and pay secrecy bans (section 105A), and wage data reporting (section 105E, for 100 or more employees). Each depends on the word “employee,” and M.G.L. c. 149, § 1 defines it to exclude “employees of any social club, fraternal, charitable, educational, religious, scientific or literary association, no part of the net earnings of which enures to the benefit of any private individual.”
Read literally, the employees of a qualifying nonprofit do not count toward the 25-employee threshold. The Attorney General’s own guidance repeats the exclusion when it explains how to count heaD.C.ount. Mass. Att’y Gen., Pay Transparency FAQ No. 2.
But whether your organization qualifies is an open question. No court has interpreted this clause, so its edges are untested. It is not clear whether “association” reaches an incorporated nonprofit corporation, whether a charter school (a public school) qualifies, how the clause treats a project operating under a fiscal sponsor, or what a for-profit affiliate does to the analysis. The clause also says nothing about federal tax-exempt status, so recognition under section 501(c)(3) is likely strong evidence of charitable character but may not settle the question.
The exclusion is also narrow. It controls sections 105A to 105C, 105E, and 105F, and nothing else. A Massachusetts nonprofit with six or more employees that falls within the exclusion is still subject to the sex-based pay discrimination and retaliation rules in M.G.L. c. 151B, § 4. Depending on its size and activities, it may also be subject to the federal Equal Pay Act, 29 U.S.C. § 206(d), and Title VII, 42 U.S.C. § 2000e et seq., which covers employers with 15 or more employees.
The practical point is that relying on the exclusion carries uneven risk. A posting violation under section 105F is enforced only by the Attorney General and starts with a warning. A wage history or pay secrecy violation under section 105A can be the subject of a private lawsuit with mandatory attorneys’ fees. M.G.L. c. 149, §§ 105A(b), (c), 105F(f). And for an organization with employees in both jurisdictions, D.C.’s rules apply in full anyway, so a single compliant hiring process is usually the lower-risk course.
What each jurisdiction requires
D.C.
D.C. requires a good faith pay range in every advertised job, bars screening by wage history, and fines a first violation $1,000 with no warning and no cure period. The rules come from the Wage Transparency Act of 2014, D.C. Code § 32-1451 et seq., as amended by the Wage Transparency Omnibus Amendment Act of 2023.
Pay range. An employer must state the minimum and maximum projected salary or hourly pay in all job listings and position descriptions it advertises. The range must run from the lowest to the highest pay the employer, in good faith, believes at the time of posting that it would pay for the job, promotion, or transfer opportunity. D.C. Code § 32-1453.01(a)(1). Because the duty reaches promotions and transfers, an internal posting needs a range too. The employer must also tell applicants before the first interview that healthcare benefits exist, and it must post a notice of employee rights where employees congregate. Id. §§ 32-1453.01(a)(2), 32-1453.02.
Wage history. An employer may not screen applicants by wage history, which includes requiring that it meet a minimum or maximum, or requiring disclosure as a condition of an interview or of continued consideration. It also may not seek wage history from a person who previously employed the applicant. D.C. Code § 32-1452. Wage history covers compensation from other or previous employment, and compensation includes nonmonetary benefits, so a question about benefits is likely covered as well as one about salary. Id. § 32-1451.
The statute lists no exceptions and is silent on wage history an applicant volunteers, on inquiries to a current employer, and on third-party recruiters. An organization should assume there is no safe harbor.
Enforcement. The Mayor must assess a civil fine of $1,000 for a first violation, $5,000 for a second, and $20,000 for each later one. The Attorney General may also sue for restitution and injunctive, compensatory, or other relief, with attorneys’ fees and penalties. D.C. Code § 32-1455. The Act creates no private right of action. Id. The text sets no warning or cure period, and it does not say what counts as one violation, so it is unclear whether each posting or each applicant is a separate one. Because the amended Act is recent, D.C. has issued little official guidance beyond the statute itself.
Massachusetts
For employers it covers, Massachusetts requires a good faith pay range in every posting. The Attorney General enforces that rule with a warning for a first offense and, under its guidance and for a limited time, a two-business-day window to fix a defect after receiving a Notice to Cure. Everything in this section applies only to employers that count under the exclusion discussed above.
Pay range. Chapter 141 of the Acts of 2024 added section 105F to chapter 149, effective October 29, 2025. A covered employer or its agent must disclose the pay range for a particular, specific position in the posting. M.G.L. c. 149, § 105F(b). The range is the annual salary or hourly wage range the employer reasonably and in good faith expects to pay for the position, and a posting includes recruiting done through a third party, so a recruiter’s or job board’s advertisement counts. Id. § 105F(a). The Attorney General applies the duty to positions whose primary place of work is Massachusetts, including remote roles tied to a Massachusetts worksite, and counts an out-of-state remote employee toward the 25-employee threshold only if that employee’s primary place of work is Massachusetts. Mass. Att’y Gen., Pay Transparency FAQ Nos. 1, 3, 5.
Current employees and applicants. Two further duties run to people already in the process. The employer must give the range to an employee offered a promotion or transfer to a position with different job responsibilities, and to an employee or applicant who asks for the range for a position. M.G.L. c. 149, § 105F(c), (d). An employee may ask for the range for the employee’s own position even when no vacancy exists. Mass. Att’y Gen., Pay Transparency FAQ No. 9. The Attorney General describes the first duty more broadly than the statute does, as arising on any promotion or transfer, and a cautious employer will follow the broader reading.
Wage history and pay secrecy. Separately, the Equal Pay Act bars an employer from seeking wage or salary history from an applicant or from a current or former employer, and from requiring that prior pay meet set criteria. M.G.L. c. 149, § 105A(c)(2). Two exceptions apply: an employer may confirm history that an applicant volunteers, and it may seek or confirm history after it has made an offer with compensation and negotiated it. Id. The same section bars requiring employees to keep their wages private and bars retaliation for discussing pay or complaining about it. An employer may still bar human resources staff, supervisors, and others whose jobs give them access to coworkers’ pay from disclosing it without the affected employee’s prior written consent, unless the information is a public record. Id. § 105A(c).
Enforcement. For a posting violation, a first offense draws a warning, a second a fine of up to $500, and a third a fine of up to $1,000. A fourth or later offense falls under M.G.L. c. 149, § 27C(b). Postings by the same employer within 48 hours count as one offense. M.G.L. c. 149, § 105F(f). The Attorney General’s guidance adds that covered employers have two business days to cure defects after receiving a Notice to Cure, through October 29, 2027.
Three situations that may trip up hiring teams
Recruiters, job boards, and remote roles
Massachusetts reaches the employer’s agent and third-party postings by statute. M.G.L. c. 149, § 105F(a), (b). D.C. does not mention agents or job boards, and its wage history ban binds “an employer,” although the Attorney General may sue “an employer or other person.” D.C. Code §§ 32-1452, 32-1455. Whether a recruiter’s conduct is attributed to the employer is therefore unsettled. Remote work adds a second layer. On its text, D.C.’s duty attaches to all of a covered employer’s advertised jobs, wherever the job sits, while Massachusetts turns on primary place of work. One posting for a remote role can raise both questions, so instruct recruiters in writing to include the range and to skip wage history questions.
Grant-funded roles, internal moves, and ED searches
Neither statute exempts an executive director search, a grant-funded position, or an internal posting. D.C. Code § 32-1453.01(a)(1); M.G.L. c. 149, § 105F. A grant that fixes a salary at one figure still calls for a stated range. D.C. requires a minimum and a maximum, so the same figure can serve as both, and Massachusetts defines the range by what the employer in good faith expects to pay. Neither jurisdiction says whether a single figure satisfies the word “range”. An internal move to ED is covered in D.C. through the posting language, and in Massachusetts through the promotion or transfer duty if the job responsibilities differ.
Talking about pay
Both jurisdictions bar rules that require employees to keep pay confidential, and both bar retaliation against employees who discuss it. D.C. Code § 32-1452; M.G.L. c. 149, § 105A(c). The difference is who can sue. In D.C., only the Mayor and the Attorney General can act. In Massachusetts, section 105A allows a private lawsuit with liquidated damages and mandatory attorneys’ fees. M.G.L. c. 149, § 105A(b), (c); D.C. Code § 32-1455. If you want to double-check your organization’s compliance, offer letters and handbooks are the first place to look for confidentiality language.
Setting a pay range you can defend
Both statutes measure the range by what the employer in good faith expects to pay when it posts the job. D.C. Code § 32-1453.01(a)(1); M.G.L. c. 149, § 105F(a). Good faith is established with documents, so set the range before posting, tie it to a budget, grant, or pay scale in writing, and keep that record.
Massachusetts adds a second tool for pay equity claims, and it works like a shield. An employer that completed a good-faith self-evaluation of its pay practices within the previous three years, and can show reasonable progress toward closing gender-based pay gaps for comparable work, has an affirmative defense to an Equal Pay Act claim and to a pay discrimination claim under M.G.L. c. 151B, § 4. M.G.L. c. 149, § 105A(d). An employer that evaluated in good faith and made progress, but whose evaluation was not reasonable in detail and scope, avoids liquidated damages. Id. The employer may design its own evaluation or use the Attorney General’s templates, and the evaluation and the steps taken under it generally cannot be used as evidence of an earlier violation. Id. Whether an employer excluded from section 105A can use the defense when sued only under chapter 151B is unsettled.
What a mistake costs
D.C. Enforcement is public, and it starts at $1,000 for a first violation with no warning and no cure period. The Attorney General may also seek restitution and other relief. D.C. Code § 32-1455.
Massachusetts, posting violations. The Attorney General has exclusive jurisdiction. The penalty ladder runs from a warning to $500 to $1,000, as described above, but no violation carries treble damages. M.G.L. c. 149, § 105F(f).
Massachusetts, wage history and pay secrecy. These are enforced like pay equity claims under section 105A. A plaintiff can recover unpaid wages and an equal amount in liquidated damages, plus attorneys’ fees and costs, within three years, without first filing a charge with the Massachusetts Commission Against Discrimination. Applicants can sue over wage history inquiries, and a plaintiff may also recover any damages incurred. M.G.L. c. 149, § 105A(b), (c). A violation of sections 105A to 105C is also punishable on conviction by a fine of up to $100, and the Attorney General may inspect payrolls to check compliance. Id. §§ 105B, 105C.
Building a hiring process that holds up
Whichever rules reach your organization, five steps apply across both jurisdictions:
Confirm which rules cover you. Count your D.C. employees, where one is enough, and your Massachusetts employees by primary place of work. Decide whether your organization plausibly qualifies for the Massachusetts exclusion.
Put a range in every posting. Cover internal and external postings. Set the range before posting and keep the budget or grant record that supports it.
Remove wage history from forms, interviews, and recruiter scripts. In D.C., assume there is no exception, including for volunteered information. In Massachusetts, wait until you have made an offer with compensation and negotiated it.
Check confidentiality language and train hiring managers. Review offer letters and handbooks for pay secrecy clauses, and brief managers on retaliation.
Document a range for every role. Massachusetts employees can request the range for their own position even when no vacancy exists, and the Attorney General’s cure window for posting defects ends in October 2027.
Off the scrap of paper and into the posting
The number on that torn-off corner of paper reached me only after I had applied and sat down for a first interview. Today, that number would have to be in the job posting, as a range, before anyone applied. The scrap of paper has become a line in the posting.
The D.C. rules are clear, and the fines start at $1,000. The Massachusetts rules may not reach your organization, but no one has tested the edges of the exclusion. The question for your next posting is which of those two sentences your hiring process is built on.
Questions about your hiring and pay practices? Commonlight Legal advises nonprofit boards and executive directors in Connecticut, D.C., Massachusetts, and New York on governance, compliance, and employment law. Contact us to schedule a consultation at https://commonlight.legal/appointments.
Alex Booker is the Managing Partner of Commonlight Legal LLP, a boutique law firm serving nonprofits in Massachusetts, Washington D.C., New York, and Connecticut. He advises nonprofit boards and executive directors on employment law, governance, and compliance.
Before founding Commonlight, Alex served as an Attorney Advisor at the U.S. Department of Education’s Office of General Counsel, adjudicated federal employment cases at the U.S. Merit Systems Protection Board, and litigated whistleblower and civil rights matters on behalf of employees at a D.C. plaintiff-side employment firm. Alex is admitted to practice in Massachusetts and Washington, D.C..
This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. For advice specific to your organization’s situation, contact Commonlight Legal LLP.