March 2, 2018
On March 1, 2018, the Massachusetts Attorney General issued a long-awaited guide on the amendments to the Massachusetts Equal Pay Act (MEPA). The guide provides helpful information to employers seeking to understand the amendments, which take effect on July 1, 2018. The guide also includes a sample checklist to help employers evaluate their existing policies and practices for compliance with the amended statute.
The amended MEPA requires employers to pay employees of different genders equal wages for comparable work. It provides for variations in compensation only if those variations are based on factors specified in the statute, such as a seniority system. In particular, salary history is not a legitimate basis for a salary differential, and employers are expressly prohibited from asking applicants about their past or current salaries.
The amended statute also contains a unique defense, permitting an employer who undertakes a pay equity study to avoid liability both under MEPA and the Massachusetts general antidiscrimination law, so long as the study is reasonable in detail and scope and the employer takes reasonable steps towards eliminating any pay disparities discovered.
The new law also makes it easier for employees to sue their employers: It increases the time during which they may file a civil action from one year to three, and eliminates the requirement that employees first file their complaint with the Massachusetts Commission Against Discrimination. In light of these changes, all employers should evaluate whether to conduct a pay equity study.
The AG’s guide contains an appendix offering general tips for conducting such studies. To assist smaller employers, the Attorney General has even provided a “Pay Calculation Tool,” consisting of tables that employers can fill out in order to compute and compare average compensation in each job grouping by gender.
The guide also addresses additional issues under the amended MEPA. It explains that MEPA applies to employees with a primary place of work in Massachusetts, even if the employer is located outside of Massachusetts, and provides pointers for determining the location of an employee’s primary place of work. In comparing compensation, the guide allows employers to limit the review to Massachusetts employees in some cases.
Tracking the amended statute, the guide explains that employers can ask about wage or salary history only in two cases: (1) to confirm information voluntarily disclosed by the applicant, or (2) after an offer of employment with compensation has been made to the applicant. Employers may ask applicants about their compensation needs or expectations, but should proceed with “caution” in order to avoid asking follow-up questions that could prompt an applicant to disclose war salary history.
Finally, the guide helps employers evaluate whether their pay disparities are attributable to one of the allowable categories: (1) seniority under an established seniority system (provided that time spent on certain types of protected leaves does not reduce seniority); (2) merit under an established merit system; (3) quantity or quality of production, sales, or revenue; (4) the geographic location at which a job is performed; (5) education, training, or experience (if these factors are reasonably related to the job); and (6) travel (if the travel is a regular and necessary condition of the particular job).
Employers are encouraged to review the guide, which is available on the Attorney General’s website at: https://www.mass.gov/massachusetts-equal-pay-law.