New Guidance on Massachusetts Equal Pay Law

Monday, March 26, 2018

The Massachusetts Office of the Attorney General has issued guidance on the amended Massachusetts Equal Pay Act (MEPA), which goes into effect on July 1, 2018. The guidance provides a succinct overview of the MEPA and contains a lengthy FAQ on the amended law’s requirements.

The MEPA prohibits discrimination in pay based on gender and requires employees of different genders to be paid equally for “comparable work.” Under the amended MEPA, “comparable work” is defined as work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. The law does permit differences in pay based on certain factors, such as a merit system, seniority system, or geography, and the new guidance sheds light on the circumstances that must be present to justify variations in pay based on these factors. Employers who violate the MEPA are liable for twice the amount of unpaid wages owed to an affected employee, as well as attorneys’ fees and costs. However, the law provides a complete defense to an equal pay claim if an employer can show that it conducted a good faith, reasonable self-evaluation of its pay practices within a three-year window prior to the claim being filed, and that it has made reasonable progress towards eliminating any discrepancies revealed by the self-evaluation. The new guidance includes a basic how-to guide for employers to conduct a self-evaluation and take advantage of this affirmative defense.

Employers should also be aware that, under the MEPA, they may not prohibit employees from disclosing or discussing their wages, and they may not inquire about a prospective employee’s wage or salary history prior to making an offer of employment that includes terms of compensation. With these provisions, Massachusetts joins Oregon, Delaware, California, and a handful of cities that have implemented similar laws prohibiting inquiries into salary histories. Although the Maine Legislature passed a bill (LD 1259) in June 2017 that would have added Maine to this list, Governor LePage vetoed the bill, leaving limitations on salary inquiries for another legislative day.