Massachusetts First To Enact Pay Equity Legislation

Posted: August 03, 2016

Pay Equity Legislation

On August 1, Massachusetts Governor Charlie Baker signed Bill S.2119, “An Act to Establish Pay Equity” into law. Effective July 1, 2018, the Act makes history as the first law of its kind to address pay equity in employment relationships. In particular, the Act prohibits employers from discriminating on the basis of gender as it pertains to wages. Essentially, employers cannot pay a particular gender less than the other for comparable work. There are a few exceptions to this requirement such as a merit system or a system that rewards seniority (time spent away due to a pregnancy-related condition or protected medical, parental or family leave cannot impact seniority). Employers may also take into account geographic location of the position, education or experience relevant to the position, travel (if regular and necessary for the job) and a system that measures earnings by quantity or quality of production. Notably, the Act also makes it an unlawful practice for employers to:
  • Require that employees refrain from discussing or disclosing their own wages, or other employee’s wages.
  • Seek wage or salary history of a prospective employee from the former or current employer or require that the previous wage or salary history meet any particular criteria.
  • However, if a prospective employee voluntarily discloses wage or salary history, employers may confirm such information.
  • Employers may seek or confirm the prospective employee’s wage or salary history after an offer of employment with compensation has been made.
  • Discharge or retaliate against any employee because the employee disclosed his/her wages, made or indicated an intent to make a complaint, opposed any act or practice that is unlawful, or testified or assisted with any investigation under the Act.
Employers may not enter into any contractual agreement with an employee to circumvent these prohibitions. However, employers may prohibit Human Resources individuals from disclosing another employee’s salary information without prior written consent unless the information is considered a public record. Employees have a right under the Act to file a private cause of action. Additionally, the Massachusetts Attorney General may also bring an action to collect. Employers who violate these provisions will be liable for the amount of unpaid wages in addition to liquidated damages. Any employer who is facing a violation of the wage or salary discrimination provision may have an affirmative defense to liability if the employer completed, within the previous 3 years and prior to the commencement of the action, a self-evaluation of its pay practices in good faith and can demonstrate that reasonable progress has been made towards eliminating pay differences. Although the Act does not take effect for roughly a year, employers are encouraged to consult with qualified legal counsel sooner rather than later to discuss compliance with this legislation.