Notice to Massachusetts Employers

The Massachusetts Equal Pay Act goes into effect on July 1, 2018. It calls for all Massachusetts employers, irrespective of size, to pay men and women the same for comparable work. The law imposes strict liability, i.e., even if one believes in good faith that they are compliant but are not, one is liable for damages under the bill as enacted. Multiple damages, costs and attorneys’ fees are recoverable by the employee, and the employee can sue in state Superior Court to recover these damages. The definition of pay is broad based and includes all forms of incentive pay, commissions, bonuses, profit-sharing, deferred compensation, vacation pay, insurance, expense accounts, and paid time off. Salary history has no effect under the law.

“Comparable work” is defined under the law as work requiring substantially similar skill, effort, and responsibility, and which is performed under similar working conditions. Minor differences in skill, effort or responsibility will not prevent two jobs from being considered “comparable” as a matter of law. Also, job titles alone do not establish what may be considered comparable work under the law.

There are several exceptions to the equal pay requirement which include seniority, a merit based system of pay, education, training and experience to the extent such are reasonably related to the particular job at issue.

Under the law prospective employers may not seek a job applicant’s salary history either from the applicant or the applicant’s employer.

Employers may protect themselves from liability by conducting a good faith self-evaluation of current pay practices. The objective must be to eliminate unlawful pay disparities among employees performing comparable work. Eliminating unlawful pay disparities means adjusting salaries/wages so that employees performing comparable work are paid the same.

Performing a self-critical audit and determining which pay differentials may be acceptable should be done immediately in order to establish an “affirmative defense” to any claims under the law. The Act provides a complete defense to any employer “that has conducted a good faith, reasonable self-evaluation of its pay practices within the previous three years and before an action is filed against it.”

The Attorney General’s Guidance states: “Employers should consult with legal counsel about their options and what type of analysis is most appropriate for their organizations.”

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This information was provided by McLane Middleton.

For more information and assistance:

Charla Bizios Stevens, Esq.

Director, McLane Middleton

 (781) 904-2700