July 15, 2019

July 15, 2019

Subscribe to Latest Legal News and Analysis

July 12, 2019

Subscribe to Latest Legal News and Analysis

Time to Act For Massachusetts Employers: Are You Prepared for the Amended Equal Pay Act?

Massachusetts is soon to join the mounting crusade against the gender pay gap as the effective date of Massachusetts’ amended Equal Pay Act – July 1, 2018 – draws near.  In August 2016, Governor Charlie Baker passed an amendment to the state’s equal pay law, aimed at strengthening prohibitions on gender discrimination in the payment of wages for “comparable work.” As discussed in more detail in previous posts, the revised law will require that employees be paid equally for work involving “substantially similar” skill, effort, and responsibility, accounting for certain mitigating factors.  The law will also prohibit employers from requesting or inquiring into the salary history of job applicants and from restricting employee discussions about their own or another employee’s wages.

Although the law will not take effect until July 1, 2018, employers can and should act now to begin ensuring compliance with the new law and to ensure they are prepared to defend against an Equal Pay Act suit.  For instance:

  • Consider how to best determine whether wage inequity currently exists at the company, and whether to perform an audit in conjunction with oversight from counsel.  Wage equity audits can take several months, and therefore it is advisable to begin this process sooner rather than later.  Once the audit is complete, employers should work with counsel to determine how best to address the results and to determine whether subsequent audits are necessary. The Massachusetts law establishes an affirmative defense for an employer who, within the three years prior to the commencement of an action for equal pay violations, has completed a good faith self-evaluation of its pay practices and can demonstrate that “reasonable progress” has been made towards eliminating wage differentials based on gender for comparable work.
  • Review job applications and interview materials to ensure that they do not include questions regarding compensation or benefit history. Employers should also ensure that managers, human resources staff, and other individuals who participate in hiring (including third-party recruiters) are aware of the obligations under the new law and refrain from making any prohibited inquiries of applicants at any stage of the hiring process.
  • Update and re-assess policies or procedures that set salary thresholds for jobs. Employers should also analyze and adjust policies that cover pay practices (including compensation, bonus, and commission policies) to comply with the Act’s provisions regarding permissible objective bases for differences in pay (such as seniority and certain types of differentiating details of the job). Employers should also review employee handbooks, policies, and forms in order to remove prohibitions on employee compensation disclosures.

The law remains vague as to what constitutes “comparable work,” and how the “substantially similar” standard should be analyzed. That uncertainty likely will not be resolved until the law has been implemented and interpreted by courts.  In the interim, we encourage employers to work with counsel to ensure that they are prepared for the implementation of the new law this summer. 

© 2019 Proskauer Rose LLP.

TRENDING LEGAL ANALYSIS


About this Author

Mark W Batten, Labor & Employment Attorney, Proskauer Law Firm
Partner

Mark Batten is a Partner in the Labor & Employment Law Department and co-head of the Class/Collective Action Group, resident in the Boston office.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is...

617-526-9850
Samantha L. Regenbogen, Labor & Employment, Proskauer Law Firm
Associate

Samantha Regenbogen is a law clerk in the Labor & Employment Department. 

Samantha was a summer associate in Proskauer's New York Office, and was involved in drafting briefs and memorandums for both wage and hour class actions and single-plaintiff discrimination cases. Before joining Proskauer, Samantha was an intern with the Enforcement Unit of the Massachusetts Commission Against Discrimination, where she investigated complaints and drafted dispositions.

During her time at Harvard Law School, Samantha served as a board member of the Women's Law Association and was a cast member and artistic director of the HLS Parody.

617-526-9746
Law Clerk

Gavin Carpenter is a law clerk for Proskaeur. He works as an associate for the firm's Boston offices. His areas of specialization are in labor and employment law. He is also a contributor to content produced by the firm in labor and employment issues. 

 

Gavin Carpenter received his law degree from Boston College Law School, J.D., 2017. He also received his undergraduate degree from Boston College in 2013. He is licensed to practice in the state of Massachusetts. 

617-526-9613