New Guidance on Massachusetts Equal Pay Law

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.

New Social Media Privacy Law in Maine

Maine has a new Employee Social Media Privacy law that prohibits employers from requiring employees and job applicants to provide access to their social media accounts. In passing the law, Maine joins at least twenty other states with similar legislation. The new law goes into effect on October 15, 2015.

The Employee Social Media Privacy law follows previous efforts by the Maine Legislature to protect the privacy of social media accounts, which efforts we have summarized here and here. Under the newly enacted law, a social media account is defined as an account with an electronic medium or service through which a user creates, shares, and views user-generated content, including emails, videos, blogs, text messages, and other similar content. Expressly excluded from the definition, however, are social media accounts that are opened at the request of an employer, provided by an employer, or intended for use primarily on behalf of an employer.

In general, the new law prohibits employers from requiring employees and job applicants to provide access to personal social media accounts, and prohibits employers from taking adverse action against an employee or applicant who refuses to provide access. The law also specifically prohibits so-called “shoulder surfing,” or the practice of requiring an employee or applicant to sign into an account in the presence of the employer. In addition, employers may not require employees or applicants to disclose any personal social media account information, add any individuals to the employee’s or applicant’s list of social media contacts, or alter account settings that would affect the ability of third-parties to view the contents of an account. Employers found in violation of the law are subject to fines assessed by the Department of Labor.

The new law does provide some exceptions and does not, for example, apply to information about an employee or applicant that is publicly available, or restrict the ability of an employer to require the disclosure of certain information that the employer reasonably believes to be relevant to an investigation of employee misconduct or workplace violations. The Employee Social Media Privacy law also clarifies that nothing in the law prevents employers from implementing policies governing the use of employer-owned electronic devices and communication systems.

Going forward, employers should review their social media policies to ensure they are consistent with the Employee Social Media Privacy law. In addition, although the new law creates an exception for social media accounts that are created or used at the request of an employer, employers may need to revisit how such accounts are used and clarify the ownership in such accounts. Failure to do so may lead to complications, not only under the Employee Social Media Privacy law, but other privacy-related laws such as the federal Stored Communications Act.

Final Right to Work Blog (127th Maine Legislature)

Efforts to pass “Right to Work” legislation in Maine have been defeated for the second time in four years. Three bills that were able to survive on minority reports after being heard and worked by the Legislature’s Joint Standing Committee on Labor, Commerce, Research, and Economic Development were defeated in mid-June by both the Democratic House and Republican controlled Senate.

LD 489, a very conventional Right to Work piece of legislation, was sponsored by Rep. Lawrence Lockman (R-Amherst) who has aggressively championed the policy for years. After more than an hour of heated floor debate in the House of Representatives the majority “Ought Not to Pass” motion was accepted by a vote of 90-52. Eleven Republicans representing swing districts and communities with high union density sided with Democrats.

LD 404 (a bill to prevent public employers from acting as collections agents) and LD 1319 (legislation to restrict public sector union officers from being compensated for days spent on union activities) were also killed by slightly narrower votes when they picked up one and four additional Republican votes, respectively.

Maine’s State Senate is controlled by Republicans who wield a 20-15 majority and so it was somewhat surprising when LD 489 was also killed in that body with a 21-14 vote. LDs 404 and 1319 suffered similar fates.

Previously, the conventional wisdom to observers had been that the Republican Senate would advance an “Ought to Pass” minority report, the Democratic House of Representatives would adhere to killing the bills, and they would eventually die in non-concurrence between the bodies. It appears that strategically organized attempts to beat back the legislation, led by the Maine AFL-CIO, were extremely successful in identifying and securing votes from Republican state senators in high-union density districts.

Right to Work - Chapter 3

The Maine Legislature’s Joint Standing Committee on Labor, Commerce, Research & Economic Development heard testimony Monday on six proposed bills that would seek to alter the relationship unions have with employees and effectively make Maine a “Right to Work”, or “pseudo-Right to Work” state. The work session for these bills will be today, May 6 at 2:00 pm.

Rep. Larry Lockman (R-Amherst) is sponsoring  LDs 404 and 489 and Rep. Joel Stetkis (R-Canaan) is sponsoring  LD 1351 – all bills dealing with public employers. These three pieces of legislation imply, in various ways, that the employees of public institutions not be required to join a union as a condition of employment.

LD 1319 is sponsored by Rep. Karleton Ward (R-Dedham). His bill would prevent public employees from collecting compensation on days when they participated in activities involving their business agents.

 

Sen. Andre Cushing (R-Hampden) is also proposing a pair of bills that were heard at Monday’s public hearing. The first, LD 1010, would exclude negotiations around the use of private contractors from collective bargaining proceedings with public entities. However, the marquis bill in question may be Sen. Cushing’s LD 1353 which is the only one of these six proposals to directly address private employer unionization and stands as a fairly straightforward “Right to Work”  bill. The legislation would, of course, exclude membership in a union as a condition of employment with private entities.

The hearing was heavily attended, lasting through the morning and into the afternoon. However, it did not draw excessively large crowds. Estimates placed the opposition, mainly composed of union members and officers, as outnumbering proponents of the six bills roughly “3 or 4 to 1”. The Maine AFL-CIO is expected to make a bigger demonstration of opposition on the morning of Wednesday, May 6 which will occur before these bills’ afternoon work sessions.