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”).
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.
Massachusetts has issued new guidance regarding its amended equal pay law. An outline of the guidance is presented below.
The new guidance contains information on the following topics:
- Covered employers and employees
- Definitions of key terms (e.g., “comparable work” and “wages”)
- Permissible variations in pay
- The prohibition against restricting employees’ wage discussions
- The prohibition against seeking salary history information
- A checklist and guide for employers to assess compliance with the law
NOTE ON POSTING REQUIREMENT: At this moment, the state has not required or published a poster or posting requirement.
Employers are generally prohibited from discriminating in any way based on gender in the payment of wages, or from paying a person a salary or wage rate less than the rates paid to its employees of a different gender for comparable work. However, variations in wages are generally not prohibited if based upon certain factors.
The law also generally prohibits employers from requiring that an employee refrain from inquiring about, discussing, or disclosing his or her own wages or another employee’s wages, and from seeking the wage or salary history from a prospective employee or a current or former employer.
The amended law, which takes effect July 1, 2018, contains additional details and prohibitions. Employers may also wish to view the state’s equal pay provisions that are in effect prior to July 1, 2018.