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2018 Massachusetts Equal Pay Act (MEPA) Updates: Dos and Don’ts for Employers

Effective July 1, 2018 Massachusetts employers will have an updated set of rules governing employee pay. Penalties for violations of the updated law include paying double the amount of an employee’s damages, as well as attorney’s fees. Here’s what you need to know:

Do

• Pay All Employees Equal Pay for Comparable Work

Under most circumstances, you must pay equally all employees doing work that requires substantially similar skill, efforts, and responsibility performed under similar working conditions. “Substantially similar” and “similar working conditions” are terms of art that have been construed in past court cases and could be the source of many future lawsuits. The Massachusetts General Attorney’s Office has also issued comprehensive guidelines to assist employers in complying with MEPA. A job description alone is not enough to show that jobs are comparable.

The only exceptions to the equal pay rule are when difference in pay are based on one of six factors: seniority, merit, production, sales or revenue bonuses, geography, education/training required, and on the job travel.

• Make Everyone in Your Organization Aware of the Law Changes

The law applies to and affects every manager of your organization. Everyone including hiring managers, human resources managers, compensation and internal promotion committee members, and anyone tasked with interviewing a potential hire need to be brought up to speed on the changes.

• Conduct a Good-faith Self Evaluation of Your Compensation Structure

In the Attorney General’s MEPA guidelines you can find an Employer Self-Evaluation Worksheet, which we recommend all organizations spend some time working through. The worksheet allows you to fill in data about your organization and determine if your compensation structure violates any provisions of MEPA. While the Self-Evaluation Worksheet is completely voluntary, conducting a good faith, reasonable self-evaluation in accordance with the Attorney General’s guidelines and undertaking reasonable progress towards eliminating compensation differences based upon gender provides an employer with an affirmative defense to any suit brought under MEPA.

Don’t

• Ask for or Seek an Applicant’s Salary History

Unless the applicant volunteers their salary history, employers may not ask about salary or wage histories until after an offer with a salary has been made. The guidelines make clear that even indirectly asking applicants to volunteer or suggesting that they offer their salary history is illegal. It is acceptable to ask about salary expectations or requirements.

• Restrict Employees from Discussing Their Wages

Employees have the right to discuss their wages and salaries; any efforts to prevent or stifle discussion is a violation. Similarly, retaliating against an employee who complains of an Equal Pay Act violation is prohibited.

• Delay in Uncovering Any Equal Pay Issues

Now is the time to find policies in your employee handbooks, compensation guidelines, interview questionnaires, and job applications that could be a MEPA violation. The Attorney General’s guidelines provide substantial guidance on MEPA, including a Self-Evaluation Worksheet that contains a practical checklist with a step by step approach to reviewing your materials.

Bottom Line: The Equal Pay Act is a clear message from the Legislature and Attorney General that the mission to end pay inequality will be enforced zealously, and we strongly encourage all employers to familiarize themselves with MEPA and the Attorney General’s guidelines.

Contact your Sherin and Lodgen attorney for assistance with evaluating your current practices, completing the Self-Evaluation Worksheet, or any other Equal Pay questions.