Massachusetts Joins California and New York with Aggressive Equal Pay Law
Posted on August 4, 2016, by Editor in LaborSphere.
By Lynne
A. Anderson
On August 1, Massachusetts added significant teeth to the statefs current
equal pay law. The new law, gAn Act to Establish Pay Equity,h not only targets
compensation decisions, it also affects hiring practices. As of July
1, 2018, when the new law takes effect, employers cannot ask an applicant to
provide his or her prior salary history until after the candidate has
successfully negotiated a job offer and compensation package. This measure
is intended to stop the perpetuation of gender pay disparities from one employer
to the next. In addition, employers cannot use an employeefs prior salary
history as a legitimate basis to pay a man more than a woman for comparable
work.
The definition of comparable work is broad: gwork that is substantially
similar in that it requires substantially similar skill, effort and
responsibility and is performed under similar working conditions: provided,
however, that a job title or job description alone shall not determine
comparability.h
Under the new law, employees can openly discuss their wages without fear of
retaliation. As a result, non-disclosure provisions in handbooks and employment
agreements will need to be modified.
Also, while the law recognizes seniority is a legitimate reason for a pay
disparity, it prohibits the employer from reducing credit for seniority based on
time off due to a pregnancy-related condition or protected parental, family and
medical leave. Therefore, policies that take leaves of absence into account when
determining pay will need to be adjusted. As in Californiafs Fair Pay Act,
an employer cannot reduce the wages of other Massachusetts employees to rectify
any wage disparities. Also, having an employee contract away any rights
under the new law will not be a valid defense to an equal pay claim.
The new law also lowers barriers to litigation. The statute of
limitations to file an equal pay claim under the new law is extended to three
years from the one year limitations period under the current statute.
Also, employees can now sue employers in court without having to first file a
claim with the Massachusetts Commission Against Discrimination – which is
required under the existing statute.
The law does encourage employers to self-audit in order to address pay
disparities; the new law provides an affirmative defense to an employer that has
completed a self-evaluation of its pay practices and can demonstrate that
reasonable progress has been made towards eliminating wage differentials within
the three years prior to the commencement of any lawsuit. In addition, claimants
are barred from using evidence of a recent audit and remedial steps to prove
their equal pay claims.
As far as next steps for the state, the Massachusetts Attorney General will
issue regulations interpreting and applying the new law. The law also provides
that a special commission will investigate, analyze and study causes of
gender-based pay disparity as well as other protected characteristics, including
race, color, religious creed, national origin, gender identity, sexual
orientation, genetic information, ancestry, disability and military status. This
commission must submit its initial findings to the Massachusetts legislature by
January 1, 2019.
For more information on compliance with Title VII, the Equal Pay Act and
various state laws regarding gender discrimination and fair pay, contact Kate Gold or Lynne
Anderson.