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MA Law to Establish Pay Equity effective July 1, 2018
Friday, March 02, 2018 -


AN ACT TO ESTABLISH PAY EQUITY

Chapter 177 of the Acts of 2017

Approved August 1, 2016

1st introduced in 1989

 

EFFECTIVE DATE:         JULY 1, 2018

WHAT DOES THIS NEW LAW DO: S2119 – An Act to establish pay equity.

Under the old law, it was prohibited to discriminate in wage payments between the sexes for work on “like” or “comparable” operations unless based upon seniority.  The new law further defines “comparable work” and “working conditions” (see definitions below) and prohibits discrimination between genders in the payment of wages while only allowing different pay levels based upon one or more of the following six conditions:

·         a bona fide system that rewards seniority with the employer; provided, however, that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave, shall not reduce seniority;

·         (ii) a bona fide merit system;

·         (iii) a bona fide system which measures earnings by quantity or quality of production or sales;

·         (iv) the geographic location in which a job is performed;

·         (v) education, training or experience to the extent such factors are reasonably related to the particular job in question and consistent with business necessity; or

·         (vi) travel, if the travel is a regular and necessary condition of the particular job. 

The proposal also prohibits certain actions when hiring and will require a posting of these employees’ rights. 

PROHIBITIONS/REQUIREMENTS/CHANGES:

·         Prohibits employers from contacting an applicant's former company to confirm their wage amount until after a job offer is made, and can only be verified with written permission from the applicant (Remove any salary inquiries from job applications if present on the form);

  • Allows employee discussions about wages only if done so voluntarily;
  • Prohibits retaliating against employees for exercising their rights under the act;
  • Expands the statute of limitations from one to three years;
  • Allows employees to file a separate equal pay claim in court without having to first pursue a general claim of intentional discrimination at the Massachusetts Commission against Discrimination;

·         Provides a defense from liability if an employer "completes a self-evaluation of its pay practices in good faith and can demonstrate that reasonable progress has been made toward eliminating compensation differentials based on gender for comparable work in accordance with that evaluation."  The state attorney general will issue a standard template for conducting self-evaluations (still pending as of 1/25/18) however it is recommended that employers conduct evaluations in conjunction with legal counsel under attorney-client privilege (click here or see link below on conducting a pay audit.

 

DEFINITIONS:

Comparable work” - work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions; provided, however, that a job title or job description alone shall not determine comparability.

Working conditions”, shall include the environmental and other similar circumstances customarily taken into consideration in setting salary or wages, including, but not limited to, reasonable shift differentials, and the physical surroundings and hazards encountered by employees performing a job.

RELATED LINKS:

Informative Q & A from Ropes & Gray:

https://www.ropesgray.com/newsroom/alerts/2016/August/New-Massachusetts-Pay-Equity-Law.aspx;

Conducting a pay audit (Ogletree/Deakins):

https://ogletree.com/shared-content/content/blog/2017/september/new-massachusetts-equal-pay-law-whether-when-and-how-to-conduct-a-pay-equity-audit;

MA Trial Court law update:

https://blog.mass.gov/masslawlib/new-laws/massachusetts-enacts-pay-equity-act/;

Boston Bar Journal article on provisions and steps that should be taken (Part 1):

https://bostonbarjournal.com/2017/01/19/pay-equity-in-massachusetts-what-every-lawyer-needs-to-know/;

Society for Human Resource Management Update:

https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/massachusetts-pay-equity-law.aspx;


Posted By : Megan Servello

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