At First Glance
On July 23, 2016, the Massachusetts Legislature passed the Act to Establish Pay Equity (the “Equal Pay Act”), M.G.L. c.149, Section 105A, which is to take effect on July 1, 2018..
While the terms “equal” and “pay equity” come up frequently in discussions of the Equal Pay Act, the new law will not mandate that wages between women and their male coworkers be equal. However, it will increase transparency concerning wages, and make remedies available to women who are paid less than their male coworkers for “comparable work.”
The Equal Pay Act forces employers to evaluate their pay practices to ensure there is no discrimination in wages or salary on the basis of gender alone. Further, the law provides employees with the freedom to discuss wages and salary amongst themselves, giving female employees more access to information about how their pay rates compare with those of male employees doing “comparable work.”
What is “Comparable Work”?
Employees who do “comparable work” are not simply employees with identical job titles or job descriptions. Under the Equal Pay Act, two employees are said to perform “comparable work” if their jobs “require[s] substantially similar skill, effort and responsibility and [are] performed under similar working conditions.”
What Employers CANNOT Do under the Equal Pay Act
The Equal Pay Act states: “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 Act also makes clear that if an employer is violating the Equal Pay Act by, for instance, paying female employees $20 per hour and male employees $22 per hour for comparable work, the employer may not lower everyone’s wages to $19 per hour just to become compliant with the law.
What Employers CAN Do under the Equal Pay Act
There are still six instances in which employers can legally pay different wages and/or salaries to people doing comparable work. Employers are NOT considered to be in violation of the Equal Pay Act if differences in pay are based on:
- Seniority with the employer, as long as seniority is not reduced by any time an employee spends on leave for a pregnancy-related condition or on parental, family or medical leave;
- A merit system;
- Certain productivity benchmarks;
- Differences in the geographic locations where the jobs are performed;
- Differences in employees’ education, training, or experience, if “reasonably related to the particular job in question”; or
- Differences in regularly required, necessary travel.
The Impact of the Equal Pay Act: Before the Job and on the Job
Before you get a job, an employer cannot request your wage or salary history from you or from your current or former employer, nor can an employer require that your prior wage or salary history meet certain criteria. But if you volunteer such information to an employer that is considering hiring you, the employer may:
- Confirm your prior wages, or permit you to confirm prior wages or salary; or
- Seek or confirm your wage or salary history after an offer of employment with compensation has been negotiated and made to you, the prospective employee.
Once you start work and are on the job, an employer cannot require that, to keep your job, you refrain from asking other employees about their wages or from sharing information about your own wages.
Importantly, an employer cannot fire or otherwise retaliate against you if you challenge anything the employer does that is in violation of the Equal Pay Act; mention an intention to complain about such conduct; participate in any investigation or proceeding concerning a violation of the Equal Pay Act; disclose your own wages or salary; or discuss other employees’ wages or salaries with them.
What Do You Do If Your Employer Is Violating the Equal Pay Act?
You may take legal action against your employer for any violation of the Equal Pay Act. Such an action must be taken within three years after the date of the alleged violation.
What Are the Possible Results of Taking Legal Action Against Your Employer for an Equal Pay Act Violation?
If your employer is found to have violated the Equal Pay Act, the employer may be required to compensate you for unpaid wages, plus an equal amount of liquidated damages (an amount of damages that is calculable by the Court). In addition to any judgment obtained, you would be entitled to reasonable attorneys’ fees and costs in connection with your action, to be paid by the employer.
Employment Agreements and Lack of Intent to Discriminate are NOT Defenses.
If you are a female employee receiving less pay than a male colleague for comparable work (and none of the exceptions described above apply), this is a violation of the Equal Pay Act even if your employer insists it didn’t mean to discriminate; whether the employer meant to or not is irrelevant under the law. Furthermore, even if you signed a contract when you were hired agreeing to a wage that was less than what the Act legally entitled you to, your employer cannot use the agreement as a way to avoid legal responsibility for the violation. Similarly, if you were paid less at a previous job than the Equal Pay Act now entitles you to, this cannot be used by your current employer as a justification for illegally underpaying you.
An Employer’s Line of Defense: The “Self-Evaluation”
An employer who is found to have violated the Equal Pay Act has a potentially valid defense if it can show (a) that it has conducted a “Self Evaluation” of its own pay practices within three years of the violation, and (b) that it has made “reasonable progress… towards eliminating the wage differentials based on gender for comparable work in accordance with that evaluation.” While the Attorney General may, in the future, establish specific requirements for the detail and scope of an employer’s Self Evaluation, there are no such requirements in the current version of the Equal Pay Act. It is up to the judge or other arbiter evaluating a case to determine whether the employer’s evaluation was sufficient.
Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
