On July 1, 2018, the state legislature amended the Massachusetts Equal Pay Act, extending protections to equalize pay among genders and clarifying what amounts to unlawful wage discrimination.  You can read more about this new law here.   Plaintiffs across Massachusetts began filing suit under the updated act the day after its passage, resulting in a surge in employment-discrimination litigation. In one widely publicized case out of Boston, a female flautist filed suit against the Boston Symphony Orchestra alleging wage discrimination for receiving less pay than her male oboist counterpart.

Employers who have not taken steps to comply with the Equal Pay Act are incurring unnecessary risk.  Thankfully, the Massachusetts Attorney General recently released a guidance for employers on how to ensure compliance with this new law.  Based on this information Steffans Legal has come up with the following 9 recommendations for employers:

1. Conduct Self-Evaluations. The Massachusetts Equal Pay Act provides a safe harbor and affirmative defense for employers who conduct good faith and reasonable self-evaluations of their pay practices. Self-evaluations must be “reasonable in detail and scope” and employers must also show “reasonable progress” towards eliminating discrepancies if self-evaluations reveal gender-based wage differentials. While there is no requirement that employers conduct self-evaluations, doing so will shield you from liability.
   

2. Review and Update Employment Applications. The Equal Pay Act prohibits employers from seeking a prospective employee’s previous wage or salary information on employment applications. All employment forms should be revised to eliminate any requests for this information.
   

3. Revise New Hire Practices. All employees with hiring responsibilities should receive training on the requirements of MEPA as it relates to hiring new employees. Concurrently, employers should revise all training manuals and guides to remove any reference to inquiring about wage and salary history before an offer of employment with compensation is made.
   

4. Revise Job Descriptions. While not dispositive of “comparable work,” job titles and job descriptions may be useful in assessing which positions are comparable. Such descriptions should be reviewed and revised to take into account skill, effort, and responsibility, as well as working conditions under which each is performed.
   

5. Review Seniority Programs. You should ensure that any seniority system does not reduce seniority for time spent on leave due to a pregnancy-related condition, and statutorily protected parental and family and medical leave.
   

6. Review Compensation Programs. It’s fine to have a compensation plan that pays employees based on the quantity or quality of production, sales, or revenue. Make sure such compensation programs are based on uniform, objective, and gender-neutral criteria. Also, the Massachusetts Equal Pay Act makes it clear that an employee’s wage or salary history is not to be considered a valid basis for paying him or her less than an employee of a different gender performing comparable work. Importantly, employers can not prohibit employees from disclosing and discussing wages with each other.
   

7. Review Merit-Based Pay. It’s fine to pay based upon merit. Be sure any merit pay system is based on performance as measured against uniformly reviewed, legitimate, job-related criteria independent of gender-based factors. Such reviews should be conducted regularly.
   

8. Justify Geographic-Based Differentials. It’s fine to pay differently based upon an employee’s geographic location. But be sure that differential corresponds with meaningfully different costs of living or differences in the relevant labor market from one location to another.
   

9. Justify Travel-Based Differentials. Travel is a permissible basis for pay differentials, provided it is a regular and necessary condition of a particular job.
   

Employers in Pittsfield, Springfield, Worcester, Lowell, Fall River, New Bedford, and the Cape should consider auditing their practices immediately to identify pay disparities and compensation practices that may subject them to liability.  Employees in those locations who believe they are being paid differently for comparable work than workers of different gender should consult with an employment attorney to learn more.