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Massachusetts Equal Pay Act Took Effect July 1, 2018

Massachusetts recently joined a growing list of states amending their equal pay legislation. On July 1, 2018, the Act to Establish Pay Equity, originally passed in 2016, took effect, amending Massachusetts’ existing Equal Pay Act.

The law bans pay differentials on the basis of sex where two people perform comparable work, adopting the more liberal “equal pay for comparable work” standard, as opposed to the federal law’s “equal pay for equal work” standard. Comparable work is defined as work that requires substantially similar skill, effort, and responsibility that is performed under similar working conditions. Like other equal pay laws, employers can plead certain affirmative defenses in response to an employee’s claim of pay discrimination, if the employer can show the pay differential is due to:

  • A seniority system;
  • A merit system;
  • A system that measures earnings based on quantity or quality of production, sales, or revenue;
  • Education, training or experience that is reasonably related to the particular job in question and consistent with business necessity;
  • Geographic location where the job is performed; and
  • Travel, if travel is a regular and necessary condition of a particular job.

The law also touches on the recent trend of banning employer inquiries into an applicant’s salary history. Specifically, the law prohibits employers from requesting an applicant to disclose prior wages, screening job applicants based on wages, and seeking the salary history of a prospective employee from a current or former employer absent written consent and a pending offer of employment that includes proposed compensation. These prohibitions are similar to recent legislation enacted in California, Delaware, Oregon, New York City, and Philadelphia.

Additional protections for employees include an anti-retaliation provision and a provision making it illegal for employers to ban employees from discussing or inquiring about his or her own wages or the wages of another employee. The law creates an exception for human resources or other employees “whose job responsibilities require or allow access to other employees’ compensation information,” allowing employers to prohibit those employees from disclosing wage information without prior written consent, unless the information is a public record. Employers should continue to watch the growing trend of equal pay legislation around the country and ensure policies and practices are updated as appropriate.

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About this Author

Associate

Brooke Razor represents public and private employers in a wide variety of employment-related disputes including discrimination cases, harassment, wrongful discharge and FMLA claims. In addition, Brooke advises employers on compliance issues, practices and procedures, and works with clients on employment policies and handbooks. She also has experience drafting employment contracts and performing wage and hour audits.

Brooke is a contributor to the firm's LaborSphere blog,...

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Alan King, Employment litigation lawyer, Chicago, Drinker Biddle
Partner

Alan S. King represents clients in the area of employment litigation and counseling. He has successfully litigated cases and advised clients on a broad range of employment matters, including employment discrimination issues, employee benefits and ERISA, restrictive covenants, confidentiality agreements, wrongful discharge, defamation and other state and federal statutory and common law employment law issues. Alan is vice chair of the firm's Labor and Employment Group.

Alan has extensive experience on behalf of both private and public employers in virtually all types of employment-related litigation. He litigates individual and class action cases in federal and state courts, and has considerable experience representing employers before federal, state and local administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Illinois Department of Human Rights, the U.S. and Illinois Departments of Labor, OSHA, the NLRB, and the Illinois State Labor Relations Board. Alan also regularly advises clients on a wide range of employment law issues, including matters of employee discipline and termination, reductions in force, wage and hour, non-competition, and workplace harassment issues.

312-569-1334
Lynne Anne Anderson, Drinker Biddle, Lawyer, Employment Litigation
Partner

Lynne Anne Anderson is a practiced jury and bench trial lawyer who handles a wide range of employment litigation, including whistleblower cases, restrictive covenant disputes and wage and hour class/collective actions. Her litigation background gives her the insights necessary to effectively counsel clients who are dealing with frontline employee issues to effectuate a win-win resolution of workplace disputes, and to implement policies and protocols to limit litigation. Lynne is Co-Chair of the Labor and Employment Group's Fair Pay Act Obligations Team...

973-549-7140