In 1945, Massachusetts became the first state in the country to pass an equal pay law. But the gender pay gap persists in Massachusetts and across the country. In Massachusetts, on average, women working full time earn only 84.3% of what men earn. The gap is even larger for some women of color.
On July 1, 2018, an updated equal pay law will go into effect in Massachusetts, providing more clarity as to what constitutes unlawful wage discrimination and adding protections to ensure greater fairness and equity in the workplace. The statute, Chapter 177 of the Acts of 2016, An Act to Establish Pay Equity, amends the Massachusetts Equal Pay Act, M.G.L. c. 149, § 105A (“MEPA”).
Equal Pay for Comparable Work
MEPA generally provides that “No 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.” The law defines “comparable work” as work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions.
MEPA permits differences in pay for comparable work only when based upon:
- a system that rewards seniority with the employer (provided, however, that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave, shall not reduce seniority);
- a merit system;
- a system which measures earnings by quantity or quality of production, sales, or revenue;
- the geographic location in which a job is performed;
- education, training or experience to the extent such factors are reasonably related to the particular job in question; or
- travel, if the travel is a regular and necessary condition of the particular job.
Importantly, MEPA makes clear that employees’ salary histories are not a defense to liability. Moreover, an intent to discriminate based on gender is not required to establish liability under the law.
An employer who violates MEPA is generally liable for twice the amount of the unpaid wages owed to the affected employee(s)—the differential between the employee’s wages and the wages paid to an employee of a different gender performing comparable work—plus reasonable attorneys’ fees and costs. However, the law provides a complete defense for any employer that, within the previous three years and before an action is filed against it, has conducted a good faith, reasonable self-evaluation of its pay practices. To be eligible for this affirmative defense, the self-evaluation must be reasonable in detail and scope and the employer must also show reasonable progress towards eliminating any impermissible gender-based wage differentials that its self-evaluation may reveal.
Employers are not required to conduct self-evaluations and will not be penalized for choosing not to do so.
Other Key Provisions
MEPA also adds several key protections for employees and job applicants:
- Employers may not prohibit employees from disclosing or discussing their wages.
- Employers may not seek the salary or wage history of any prospective employee before making an offer of employment that includes compensation, and may not require that a prospective employee’s wage or salary history meet certain criteria.
- Employers may not retaliate against any employee who exercises his or her rights under the law.
Employees whose rights under MEPA have been violated have three years from the date of an alleged violation to bring an action in court. A violation occurs when a discriminatory compensation decision is made or other practice is adopted, and each time an employee is subject to or affected, including each time wages are paid.