As of July 1, 2018, employers and employees in the Commonwealth of Massachusetts will be subject to the new gender equity law. Both Massachusetts and several other states have been enacted gender equity laws due to ongoing wage inequality between male and female employees. On March 1, 2018, the MA Attorney General issued a Guidance on the new law. The Attorney General will house the Guidance on a dedicated webpage that includes step by step information for employers who undertake a self-evaluation of gender pay disparities, as well as a calculation tool to further assist employers (https:///www.mass.gov/massachusetts-equal-pay-law). The Attorney General is hosting a webinar on March 22nd to introduce employers to the requirements of the new law and to address questions. You may register on the new web site listed above.
The Massachusetts Equal Pay Act, or “MEPA” as it is known, provides that “[n]o employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” Comparable work is broadly defined as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” An employee’s job title and description alone does not determine comparability. Many employers have been struggling to interpret the new gender equity law and are unsure how properly to perform self-evaluations in order to gain the benefit of the affirmative defense under the statute. Hopefully, the Guidance will resolve many unanswered questions.
The Guidance explains the concept of “comparable work” and permissible deviations from equal pay for comparable work. Additionally, the Attorney General has provided an expanded explanation of the terms “skill, effort, and responsibility” and other key terms contained in MEPA, such as “working conditions,” “wages,” and “physical surroundings and hazards.” Also included are a series of Frequently Asked Questions and responses. Finally, the Guidance provides a useful checklist of item employers should consider when evaluating whether male and female employees receive equal pay for comparable work.
For example, according to the Attorney General, “substantially similar” work does not mean identical, but instead may simply mean that the work is alike to a great extent. Also, broad definitions of “skill, effort, and responsibility” are to be measured in terms of the position requirements, rather than qualities specific to individual employees.
Significantly, not all differences in pay are prohibited, as employers may pay male and female employees differently for comparable work based upon:
- a seniority system (where a pregnancy-related or parental, family, and medical-related leave does not reduce seniority);
- a merit system;
- a system measuring earnings by quantity or quality of production, sales, or revenue;
- geographic location;
- education, training, or experience if reasonably related to the particular job; or
- travel, if travel is necessary and regular for the job.
MEPA also prohibits employers from:
- forbidding employees from disclosing or discussing wages (arguably already illegal pursuant to the federal law as the National Labor Relations Act);
- seeking the salary and wage history of prospective employees; and
- retaliating against employees for exercising their rights under the law.
Significantly, while employers may not inquire as to salary or wage history, they are still permitted to inquire into the salary and wage requirements and expectations of prospective employees. Given that this can be a grey area, employers should avoid follow-up questions that could elicit historic salary information.
Employers found liable for MEPA violations are required to pay liquidated damages that are double the amount of unpaid wages, plus attorneys’ fees and costs. For this purpose, unpaid wages constitute the difference between the aggrieved employee’s wages and the wages paid to an employee of a different gender who performs comparable work.
Employers should be aware and take advantage of the affirmative defenses under MEPA. The law protects employers that have conducted a good faith, reasonable self-evaluation of their pay practices within three years of the filing of a lawsuit by a disgruntled employee or class of employees and who have promptly remediated the wage imbalance (in less than six months). This defense will only be available to those employers whose self-evaluation is reasonable in detail and scope, while also showing reasonable progress toward eliminating any gender-based wage differentials for comparable work.
This is a complex, rapidly developing legal situation with the potential to significantly impact companies. We encourage employers to carefully consider whether a self-evaluation should be done and how best to undertake this process.
If you have any questions or need additional information concerning MEPA, please contact Valerie Samuels or any other attorney in our Employment Group.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2018 Posternak Blankstein & Lund LLP. All rights reserved.
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