Massachusetts Equal Pay Act
In under one year (July 1, 2018), the Massachusetts Equal Pay Act will take effect and all Massachusetts employers must pay their employees equal wages without regard to gender. With this effective date looming, employers would be wise to take immediate steps to ensure compliance with the provisions of this new law.
The Equal Pay Act, codified at M.G.L. c. 149, § 105A, shall prohibit an employer from wage discrimination on the basis of gender. The Act defines “wages” to include “all forms of remuneration for employment” and effectively prohibits the payment of wages or salary to any employee at a rate less than that paid to an employee of a different gender for comparable work. In certain circumstances, employee pay variations will still be permitted based on:
- Seniority (although time spent on maternity leave or other protected family or medical leave cannot reduce seniority);
- A merit based system;
- A measurement of the quantity or quality of production, sales or revenue;
- Geographic location where the job is performed;
- Education, training or experience reasonably related to the job; and
- Travel, if such travel is a regular and necessary condition of employment.
The new law also prohibits employers from reducing the wages of an employee in order to comply with the Act. Employers cannot prohibit applicants from inquiring about wages or salary information, nor can employers ask applicants about their salary history before extending a formal offer of employment. The Equal Pay Act also comes with steep penalties for employer violations, including double liability for the amount of unpaid wages as liquidated damages, attorney’s fees and costs.
One unique aspect of the new law is that it allows an employer to assert an affirmative defense based on a good faith self-evaluation of its own pay practices and reasonable progress toward eliminating gender-based pay differences within its workplace. This affirmative defense is only available, however, if the self-evaluation occurred within three years prior to the commencement of the employee’s claim.
Employers should take steps now to address any issues with wage disparities, including reviewing and amending employment applications that ask for an applicant’s salary history. Employers should also provide training to human resources personnel and other management employees who conduct recruitment activities with regard to appropriate (and inappropriate) questions to ask during interviews. Additionally, employers should review and amend any policies that prohibit employees from discussing wage information.
Employment counsel can assist with the above-referenced issues and in conducting an audit to ascertain whether an employer’s policies or practices disparately impact women during annual reviews or other wage or benefit decisions. Such an audit will provide an employer with the information related to its wage practices, and assist the employer in establishing a workplace free of wage discrimination based on gender.
This article was originally posted on the Pomeroy Law P.C. blog and is reprinted with permission. Maureen Pomeroy is Of Counsel with Pierce Davis & Perritano. She represents clients in products liability and toxic tort defense matters in Massachusetts and New Hampshire state and federal courts. Ms. Pomeroy also counsels businesses in employment matters.