On August 1, 2016, Massachusetts governor Charlie Baker signed the equal pay law, a law that has been working through the legislature since 1998. The law takes effect on July 1, 2018. The law bars discrimination on the basis of gender in the payment of wages, including benefits and other compensation, for “comparable work.” The statute defines comparable work to mean work that requires substantially similar “skill, effort and responsibility” and is performed under similar working conditions. The law allows variation in wages based on:
- seniority;
- merit;
- productivity as measured by quantity or quality of sales or production;
- geographic location;
- education, training, or experience reasonably related to the job; or
- regular travel.
The law provides several direct remedies for violations with a three-year statute of limitations. Aggrieved employees can bring a lawsuit on behalf of themselves and similar situated employees, and recover the amount of wages underpaid, as well as an additional amount of wages underpaid as liquidated damages (amounting to double damages), plus reasonable attorney’s fees. Employers also face liability for retaliation under the law.
An employee’s previous wage or salary history may not be used as a defense, but the law does provide employers with one affirmative defense: if, within the prior three years and before a lawsuit is brought, employers complete a good faith self-evaluation of its pay practices and demonstrate that reasonable progress has been made towards eliminating pay differentials based on gender, liability under this law can be avoided. Employers may design their own self-evaluations, if they are reasonable in detail and scope in light of the employer’s size.
Finally, this law makes illegal some common practices. Employers may not bar employees from discussing their own wages or the wages of fellow employees. Further, employers may not screen job applicants based on salary history or even ask about prior wages or salary history. However, prospective employees may provide written authorization for a prospective employer to confirm prior wages, but only after the prospective employer makes an employment offer.
The attorney general is empowered to bring its own lawsuit based on equal pay violations and may issue regulations interpreting this law, which can include templates for employer self-evaluations. Although gender discrimination has long been illegal in Massachusetts, this law provides employees with new avenues for relief and places additional restrictions on employers. Employers should consult with Massachusetts employment attorneys to confirm that hiring practices will comply with the law and to ensure that potential liability is limited through self-evaluations.
