September 17, 2019

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Massachusetts Moves Closer to Toughening Pay Equity Requirements

The Massachusetts Senate has passed a bill to amend the state’s Equal Pay Act that would impose more rigorous equal pay obligations on employers by prohibiting certain conduct. The House is considering the bill.

Under the Equal Pay Act, employers are prohibited from discriminating against employees on the basis of gender in the payment of wages or salary for comparable work.

The amendment would prohibit employers from engaging in the following conduct:

  • Screening job applicants based on wage or salary history, including:

    • requiring an applicant’s prior wage or salary to satisfy the employer’s criteria, or

    • requiring an applicant to disclose prior wage or salary history as part of the application process.

  • Seeking the salary history of an applicant from a current or former employer, unless the prospective employer made an offer of employment to the applicant, and the applicant provided written authorization to the employer to confirm wage or salary history.

  • Prohibiting employees from discussing their compensation with coworkers or colleagues (although the National Labor Relations Act already prohibits such conduct, the proposal creates a private right of action under state law for employees to enforce their rights).

In addition, the bill enhances the enforcement scheme of the Equal Pay Act and extends the statute of limitations for claims under the Equal Pay Act from one year to three years. It also states that employees need not file a complaint with the Massachusetts Commission Against Discrimination or the Attorney General’s Office before filing a private civil action in court.

To foster compliance, the bill creates an affirmative defense for employers that have completed a good faith “self-evaluation” of their pay practices within the past three years. Employers may design their own “self-evaluation,” so long as it is reasonable in detail and scope in light of the employer’s size. Alternatively, the bill provides that employers may utilize templates, forms, and guidance that will be issued by the Massachusetts Attorney General’s Office, the agency charged with administering the statute.

If the bill is enacted, the amendment would become effective on January 1, 2018, which provides employers with a window period in which to engage in “self-audits.” Massachusetts would join California and New York in expanding pay equity requirements for employers.

The Massachusetts Attorney General’s Office has flexed its muscle on the pay equity issue. It has issued demand letters requesting detailed pay equity information from employers. The demand letters require that employers provide their employees’ names, address, sex, race, ethnicity, classification (full-time or part-time), hire date, title, salary, work location, job description, and total compensation from the prior year, among other things. The information gathered would be analyzed to determine whether employers’ pay practices differ based on gender or race.

The initiatives in Massachusetts reflect the broader, nationwide regulatory emphasis on pay equity. In addition to the California and New York laws, on February 1, 2016, the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs issued a proposal to expand EEO-1 reporting obligations to require employers with at least 100 employees to report wage data as part of the EEO-1. (For details, see our article, EEOC Proposes to Collect Pay Data from Employers.)

Regardless of the outcome of the Massachusetts proposal, the increased regulatory scrutiny on pay equity issues should spur employers to consider conducting internal audits of their pay practices to address any issues.

Jackson Lewis P.C. © 2019

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Brian E. Lewis, Jackson Lewis, disability management issues lawyer, restrictive covenants attorney
Principal

Brian E. Lewis is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He exclusively represents management in all facets of workplace law.

Mr. Lewis routinely advises clients regarding day-to-day employment issues, such as employee discipline and discharge, disability management issues, proper payment of wages, reductions in force, and restrictive covenants. Mr. Lewis also has experience in representing clients on traditional labor law issues, and has appeared before the National Labor Relations Board. He...

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Samia Kirmani, Jackson Lewis Law Firm, Unemployment Counseling Attorney
Principal

Samia M. Kirmani is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. She concentrates her practice in employment counseling, training and litigation on behalf of management.

Ms. Kirmani provides practical legal advice to clients on various employment law issues, including discrimination, health and leave management, reductions in force, retaliation and whistleblower matters, individual separations, and employee relations issues. Ms. Kirmani also assists clients with policy creation, revision and implementation and routinely conducts management and employee trainings on topics in employment law, including sexual harassment prevention and best management practices. Ms. Kirmani also advises clients with respect to drafting and implementing national arbitration agreements.

Ms. Kirmani defends employers in employment-related litigation and administrative proceedings at the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination. Ms. Kirmani is a frequent speaker and addresses Legal and Human Resources audiences on current and various workplace law topics, such as paid sick leave, arbitration agreements and class action waivers, and employment discrimination.

 

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Matthew Camardella is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He directs the preparation of more than 400 AAPs each year and has defended hundreds of OFCCP audits for a broad range of employers across the country.

In addition, Mr. Camardella serves as the Practice Group lead on responding to OFCCP allegations of class-based discrimination. He spends significant time counseling clients about the design and implementation of company-wide AAP structures, applicant flow tracking systems,...

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Keerthi Sugumaran is an Associate in the Boston, Massachusetts, office of Jackson Lewis P.C. Her practice focuses on representing and defending employers in workplace legal issues, including preventive advice and counsel.

Prior to joining Jackson Lewis, Ms. Sugumaran worked at a Boston law firm for over four years as a general litigator. During this time, she represented employers in front of the MCAD, EEOC, state and federal courts. Ms. Sugumaran also participated in a six-month secondment, working in-house for a private...

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