Pay Equity Act friendly to plaintiffs
Amanda Marie Baer
On Aug. 1, Gov. Charlie Baker signed into law the Act to Establish Pay Equity, which amends and strengthens Massachusetts' law prohibiting wage discrimination based on gender.
As the name suggests, the Pay Equity Act prohibits employers from paying any employee a wage (including benefits) less than the wage paid to an employee of a different gender for comparable work. The term comparable work is broadly defined to mean work that is “substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” Variations in wages are allowed only if they are based on, in general: seniority, a merit system, production, geography, education, training, experience or travel.
The Pay Equity Act also prohibits employers from screening job applicants based on their wage histories or requiring job applicants to disclose their wage history as a condition of being considered for the position. Employers may seek the wage history of applicants from the applicants' former employers.
Further, the Pay Equity Act prohibits employers from barring employees from disclosing or discussing their, or any other employee's, wages and retaliating against any employee for opposing any practice made illegal by the Pay Equity Act.
Procedurally, the Pay Equity Act is quite plaintiff-friendly. Specifically, unlike other claims of discrimination or claims for violations of the Wage Act, claims for violations of the Pay Equity Act do not need to be first brought to the Massachusetts Commission Against Discrimination or the attorney general. In addition, the statute of limitations has been expanded to three years. Claims under the act may be filed by individuals, as a class of plaintiffs or by the attorney general.
Damages for violations of the Pay Equity Act are steep. An employer found to have violated the act will be held liable for the unpaid wages, liquidated damages and the plaintiff's attorneys' fees and costs.
The Pay Equity Act strongly incentivizes employers to conduct self-evaluations of their pay practices and take steps toward remedying pay inequalities. If employers conduct a self-evaluation within three years prior to the initiation of a suit, they may use that fact as an affirmative defense. Thus, employers should consider conducting a self-evaluation before the act goes into effect in 2018 and then again at least every three years thereafter.
Employers are also well advised to take several additional steps to ensure compliance with the act. Specifically, employers should revise applications to eliminate any questions related to salary history; train those involved in the hiring process (and instruct third-party recruiters) to not ask questions about applicants' salary history; if planning to seek wage history from a former employer, draft written authorizations for the prospective employee to sign; review handbooks and/or policies to ensure compliance; and post notices regarding the act.
The act adds a lot of work to the attorney general's plate, as it instructs the AG to draft regulations interpreting the law, notices and model self-evaluation forms. So stay tuned!
Amanda Marie Baer is an associate in the labor, employment and employee benefits group at the Worcester and Westborough offices of law firm Mirick O'Connell.
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