Legislatures can create major problems when they enact statutes whose goals may be desirable but which do not clearly delineate which actions are legal and which are illegal.
A notable example of the problems such legislation can cause has recently come up in Massachusetts. The Boston Symphony's principal flute player, Elizabeth Rowe, has sued alleging that her paycheck violates state legislation requiring equal pay for "comparable work," since among other things she earns much less than John Ferrillo, principal oboist.
We can't blame Ms. Rowe for suing. Mr. Ferrillo received about $286,000 in 2015, and Ms. Rowe got about $70,000 less. If she wins, the extra money will be substantial.
Hopefully her lawyer is working on a contingency fee basis so she won't owe any fee if she loses. Heads, she wins. Tails, she is not out anything. Pretty nice for her.
Were I in her shoes, I would sue, too. But there is a major problem here.
The fault here lies, not with Ms. Rowe for filing her lawsuit, but with Massachusetts for creating this opportunity. The Massachusetts Equal Pay Act puts employers in an intolerable situation. It means the Boston Symphony cannot know what it will cost to hire particular people. A musician can accept an offer of certain wages — in Ms. Rowe's case, 140 percent of the base specified by the union contract — but turn around years later and sue the employer. If it loses, the employer must pay double the "unpaid wages" plus "reasonable" attorney's fees. And the legislation allows judges and juries who are not experts to decide whether work is "comparable."
If a discrepancy is found, it could be eliminated either by raising Ms. Rowe's pay, or by reducing Mr. Ferrillo's. Of course it would be outrageous to force Ferrillo to reimburse the orchestra for several years of "excess" pay. Boston apparently offered him 200 percent of the union base pay — as allowed by the contract — to entice him away from his previous employer. He would have been a fool to accept this offer knowing that Massachusetts might force him to repay large portions of his salary.
Fortunately the Massachusetts legislation allows no such thing.
If it is unfair to put workers in this position, how can it be fair to impose similar risks on employers?
"Comparable work" legislation makes no allowance for differences in supply and demand for particular workers. Perhaps outstanding oboe players are scarcer than outstanding flute players. Perhaps oboes cost more to buy and maintain. Perhaps there are other reasons to pay Mr. Ferrillo more. But the state has no business looking into these questions in the first place, there being no objective way for it to judge "comparable work."
Employees who feel they are unfairly compensated can always seek better jobs. Indeed, both of these musicians did this when they moved to the Boston Symphony.
If Ms. Rowe cannot find a better position, that would suggest that the Boston Symphony isn't paying her unfairly. If she can find such a position, she is free to take it.
Of course people should be paid equally for comparable work, everything else being equal. But life is complicated, everything else is rarely equal, and the ability for workers and employers to know where they stand without awaiting judgment by some third party is also important. Orchestra conductors are more likely to understand what they are doing than is some bureaucrat, judge, or jury. Government should keep its nose out of this arena.
This is not true just for symphony orchestras. Officials should never second guess salaries determined by the mutual consent of employer and worker. In a market economy decisions of this type should be as decentralized as possible.
Democrat Paul Tsongas, seeking the presidential nomination in 1992, wise-cracked that "Democrats love employment. It's employers they can't stand."
Of course the joke was that without employers there can be no employment.
Many symphony orchestras have precarious finances. If unexpected expenses cause some of them to go belly up, this will make good musical positions even harder to find than they are now.
Edward Heath, English prime minister from 1970-1974, attended college on a pipe organ scholarship and was told he could have a distinguished musical career. He jested once that he had no stomach for the nastiness of a musical career, "I did not want anything to do with unpleasantness, so I went into politics." Perhaps Heath knew what he was doing. And England did not even have a "comparable work" law to aggravate the nastiness.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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