Pay Equity in Massachusetts – What Employers Need to Know Before the New Law Takes Effect July 1, 2018  

August 4, 2016 |

 

Here’s What We Know:

  • It is no secret that there is still a workplace wage gap between the genders.
  • Prior to the passage of certain laws a little over five decades ago, female employees working full-time were earning on average only about sixty percent (60%) of the amount earned by their male counterparts.
  • Progress has been made in closing the pay gap.
  • According to the Economic Policy Institute, women are taking home 83 cents for every dollar earned by men.
  • According to the Federal Department of Labor, pay equity for younger workers is near parity.
  • Today, in Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief:
    • The Federal Equal Pay Act (“FEPA”);
    • Title VII of the Civil Right Act of 1964 (“Title VII”);
    • The Massachusetts Equal Pay Act (“MEPA”); and
    • Chapter 151B of the General Laws of Massachusetts (“151B”).
  • The National Labor Relations Act governs most private sector employers in the Commonwealth and throughout the country. That law makes it abundantly clear that employees have the right to engage in protected concerted activity. That means that no employer is allowed to retaliate against, discipline or terminate an employee who discusses how much money they make or how much money someone else makes.
  • Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation.

 

What Will Change When The New Law Goes Into Effect On 7/1/18:

  • The current Massachusetts Equal Pay Act (“MEPA”) requires employers to provide “equal pay” for “equal work.” The new law prohibits differences in pay for “comparable work,” which is defined as solely meaning “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.”
  •  Unfortunately, we will have another vague term that creates an ambiguous standard that will expand employers’ obligations to insure equal pay within it workplace.
  • The current practice of assessing pay equity within job titles and job descriptions must now expand across different jobs to meet the “comparable work” standard.
  •  Wage Disclosure Restriction – The law will prohibit employers from requiring an applicant’s compensation history prior to making a job offer that includes pay/compensation. However, applicants can voluntarily disclose wage history and job applications should note that providing pay history information is voluntary. Make no mistake – the new law does not govern or in any way restrict conversations within the recruitment process related to portable business. Such as: how many clients do you currently work with? How many of those clients are likely to follow you? How much revenue do you expect those clients to generate if they follow you and you land here? Tell us about how you create and maintain your contact network, including the number and types of contacts you have within our industry?
  • We also know that conversations in the workplace about pay are protected.

 

How Can Employers Avoid Liability:

  • Wage differentials between employees of opposite genders must be based upon one of the following factors:
    • Seniority – Provided that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave should not reduce seniority.
    • Merit system;
    • Quality or Quantity of Production – A system which measures earnings by quantity or quality of production, sales, or revenue;
    • 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; and
    • Travel, if travel is a regular and necessary condition of the particular job.

 

  • Create a rolling affirmative defense by conducting a self-evaluation of pay practices that is “reasonable in detail and scope in light of the size of the employer” and make “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. This evaluation creates an affirmative defense if it is completed within the three years prior to the commencement of a wage discrimination claim.

 

  • Our Pay Equity Audit will create a rolling affirmative defense for your company.

 

Take Full Advantage Of The Next 23 Months To Achieve Compliance:

  • Benjamin Franklin was right: an ounce of prevention is really worth a pound of cure and nevermore than in wage issues.
  • Take advantage of our Pay Equity Audit to achieve compliance and create a rolling affirmative defense.
  • Revise pertinent policies, your company’s employment application, training and hiring practices to reduce exposure.

 

We can help!

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