On July 1, 2018, the updated Massachusetts Equal Pay Act (“MEPA”) went into effect. Nearly all employers in the Commonwealth are subject to MEPA, as well as those out-of-state businesses with employees whose primary place of work is in Massachusetts. Employers who fail to comply with the new provisions face liability for double the amount of impermissible disparate pay, plus attorneys’ fees and costs.
1. Equal work for equal pay
In general, MEPA prohibits gender discrimination in the payment of wages. Employees performing “comparable work” -- work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions -- must be paid the same rate.
2. Except . . .
Different pay for comparable work is permitted when the pay rate is based upon:
- a system that rewards seniority with the employer (provided, however, time spent on parental/family/medical/pregnancy leave, does 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.
3. Intent doesn’t have to be established
Notably, an aggrieved employee need not establish the employer’s intent to discriminate under MEPA. Plaintiffs may recover twice the amount of unpaid wages owed (the difference between the employee’s wages and wages paid to an employee of a different gender performing comparable work), plus attorneys’ fees and costs. Employees have 3 years from the date of an alleged MEPA violation to bring a claim -- e.g., when a discriminatory compensation decision is made or discriminatory pay practice is adopted, essentially, each time disparate wages are paid.
4. Employers SHOULD Conduct Good Faith Self-Evaluations
An employer has a complete defense to MEPA claims so long as it has conducted a good-faith, reasonable self-evaluation of its pay practices in the last 3 years and before an unequal pay action is filed. The self-evaluation must be reasonable in detail and scope, and if it reveals gender-based wage differentials, the employer must show reasonable progress toward eliminating the differentials.
5. Talking about Wages – the Do’s and Don’ts
The revised MEPA also expands protections for employees and job applicants. Specifically, employers may not:
- Prohibit employees from disclosing/discussing their wages;
- Ask the salary history of a job applicant before extending an offer; and,
- Of course, retaliate against an employee who files a MEPA claim.
NBP’s employment regularly counsels and represents employers on matters such as MEPA. If you are an employer who needs advice on updating your employment practices to comply with the new MEPA provisions, or conducting a self-evaluation of your pay practices, please contact Colleen Cook, our employment law specialist.