Nathan A. Olin, Olin Lippiello LLP. On July 1, 2018, the Massachusetts EqualPay Act amendments become effective. The main goal of the amendments is to ensure equal pay to employees of different genders working in the Bay State. The MEPA, as amended, imposes significant responsibility on Massachusetts businesses to help guarantee equal pay to employees of different genders for “comparable” work. The law also places restrictions on asking job applicants about salary history and other discussions of wages while at work.
Did you know that, nearly seventy-five years ago, Massachusetts became the first state to pass an equal pay law? Yet, as the state’s attorney general points out in a recent guidance document announcing the new MEPA, the gender pay gap persists across the country and in Massachusetts where, “on average, women working full time earn only 84.3% of what men earn” and “the gap is even larger for some women of color.” To be sure, things have improved over the decades. According to the U.S. Bureau of Labor Statistics, women’s earnings were 62 percent of men’s in the late 1970s. But, most of the growth in relative earnings occurred in the 1980s and 1990s; and, since 2004, “the women’s-to-men’s earnings ratio has remained in the 80 to 83 percent range.”
The new Massachusetts law hopes to pick up the pay equity baton where other laws have stagnated. Its premise is simple: “No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” Further, the new MEPA defines “comparable work” as work that requires “substantially similar skill, effort, and responsibility, and is performed under similar working conditions.” Moreover, employers may not simply rely on “history” to justify gender-based pay differences. They also most certainly may not retaliate against employees who raise MEPA or other pay equity questions.
Indeed, the new law is so strict, some might say it is overly “employee-friendly.” Scrupulous employers, however, can seek to avoid financial penalties and adverse judgments in a variety of ways. For example, employers can get properly trained and prove that to the court. They will also be well served by quickly incorporating blind salary hiring decisions or proving that any pay disparity is bona fide, e.g., based on seniority or a merit system. But, employers should be cautioned that it is not enough to simply say they did not intend to discriminate. The new MEPA is a strict liability statute, which simply means that employers may be liable regardless of their state of mind.
Under the new law, employees who believe that their MEPA rights have been violated have three years to bring an action in court, often with the assistance of a willing lawyer. (An added bonus for affected and successful employees is that their attorney’s fees may be ordered paid by the discriminatory employer.) Moreover, MEPA violations can occur every time a discriminatory paycheck is issued. Successful litigants will also be awarded two times the amount of unpaid wage differential, albeit subject to some important defenses. Finally, like any new law, it will take some months (and possibly years) for the courts to interpret some of the act’s new provisions and terms.
Equality is a word embedded in the foundations of our democracy. In Massachusetts, the birthplace of the American Revolution, that now means that disparate pay based on one’s gender may soon be closer to a thing of the past.
On Wednesday, June 27, 2018, Attorney Nathan Olin will attend a brown bag luncheon discussion of the MEPA amendments on behalf of Olin Lippiello LLP, presented by the Hampden County Bar Association Labor and Employment Section. Attorney Olin, whose previous work included stints at large and small employment law firms, and for more than a decade as an attorney employed by the United States District Court in Massachusetts, has tracked and litigated equal pay issues for many years. If you have any questions about pay equity, discrimination, harassment at work or elsewhere, employment law, or getting all the pay that you deserve, contact us at Olin Lippiello LLP today. Photo by Giacomo Ferroni on Unsplash
