EQUAL PAY ACT
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Overview of Equal Pay for Equal Work Laws
Paying men more than women could be unlawful under anti-discrimination laws, without the need for separate laws on the subject. Unlike the anti-discrimination laws, however, the federal and Massachusetts equal pay laws seek to promote gender equality in the workplace by placing a blanket prohibition on paying women differently than men, unless the employer can explain the differential based on one of several enumerated reasons. These reasons, and some recent changes to the equal pay laws, are described below.
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Equal Pay Act Requirements
The Federal Equal Pay Act and the Massachusetts Equal Pay Act seek to promote gender equality in the workplace by prohibiting differentials in pay between men and women for equal work, or comparable work in the Massachusetts, in jobs which require equal skill, effort, and responsibility and are performed under similar working conditions. Exceptions to the federal rule are where the difference in pay is based on (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. Exceptions to the Massachusetts rule include all of these except the catch-all "any factor other than sex," and adds job-related travel and job-related education and experience to acceptable reasons for unequal pay. The Massachusetts Equal Pay Act further clarifies that in a seniority system, time spent on pregnancy related or family or medical leave cannot count against seniority.
Though these laws do require the employer to justify the differential in pay, and therefore impose an initial burden, they do not create a bright line test for what is a legitimate seniority or merits system, or a "differential based on any factor other than sex." What that means in practice is that a major part of an employer's defense of an equal pay act claim will be to try to demonstrate that any differences in pay between men and women in general, and differences between the plaintiff's pay in particular and other employees, are connected to seniority or documented performance. For the plaintiff in an equal pay case, this most likely means that the employer will seek to prove that she specifically did not measure up in these areas.
Though these laws do require the employer to justify the differential in pay, and therefore impose an initial burden, they do not create a bright line test for what is a legitimate seniority or merits system, or a "differential based on any factor other than sex." What that means in practice is that a major part of an employer's defense of an equal pay act claim will be to try to demonstrate that any differences in pay between men and women in general, and differences between the plaintiff's pay in particular and other employees, are connected to seniority or documented performance. For the plaintiff in an equal pay case, this most likely means that the employer will seek to prove that she specifically did not measure up in these areas.
Salary Inquiries Under the Massachusetts Equal Pay Act
One thing that has historically made enforcement of the law requiring equal pay for equal work challenging is the fact that employees often do not know how their co-workers are compensated, and whether there are in fact differences in pay between men and women. Recent amendments to the Massachusetts Equal Pay Act attempt to address this concern by making it unlawful for an employer to stop employees from discussing or disclosing their wages or salary.
Another recent change is that employers may no longer ask job applicants about their current salary or salary history. This is intended to level the playing field between men and women by encouraging employers to set compensation based on the qualifications of the applicant and the nature of the job, not based on a potentially artificially deflated salary history.
Another recent change is that employers may no longer ask job applicants about their current salary or salary history. This is intended to level the playing field between men and women by encouraging employers to set compensation based on the qualifications of the applicant and the nature of the job, not based on a potentially artificially deflated salary history.
Good Faith Audit as a Defense Under the Massachusetts Equal Pay Act
Another recent change in Massachusetts is a provision allowing employers to defend themselves in an equal pay lawsuit if they can show that within the past three years (and prior to any equal pay lawsuit being brought), the employer has conducted a good-faith, reasonable self-evaluation of its pay practices, and can show "reasonable progress" toward eliminating any impermissible pay differentials uncovered in that evaluation. An employer who does not do this will not be penalized, but it is important to note that if you do the evaluation correctly, and follow up appropriately on your findings, you have a complete defense to a MEPA claim.
Frequently Asked Questions
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Can a prospective employer ask me about my salary history? Under the new Massachusetts Equal Pay Act, these questions are not allowed until after an offer of employment with the compensation specified has been made.
Can I tell a prospective employer about my salary history if I want to? Yes, if you feel it is to your advantage to disclose your prior earnings, you are free to do so. Do fringe benefits count in determining whether men and women have equal pay? Yes. The courts have held that the comparison of compensation must also be informed by the value of the benefits offered to different employees in comparable positions. How can I tell if differences in pay are based on legitimate factors? This is a challenging task, both in determining whether you have an equal pay act claim and in pursuing such a claim. Keep in mind that quantifiable performance metrics are more likely to be considered independent of gender (sales numbers, specific output measurements, revenues attributable to employees, etc.). In contrast, subjective opinions about work performance are more subject to bias, and in the area of equal pay between men and women especially, you should watch for word choices and adjectives that suggest a bias. Do I have to prove that my employer intended to discriminate in pay? No. The Equal Pay Act is what is known as a "strict liability" law, which means that if there are differences in pay between men and women, and those differences are not justified by one of the reasons the law considers legitimate, the employer is liable even though there is no proof the differences were motivated by discrimination. Can I be disciplined for discussing salary with co-workers? No. The Massachusetts Equal Pay Act prohibits employers from requiring silence among employees about compensation, precisely to make sure that people have the information they need to identify unlawful discrepancies in pay. If I am paid less than a male colleague based on seniority, but I am only less senior because of my maternity leaves, is that lawful? No. The Massachusetts Equal Pay Act specifies that time away from work for maternity or any other family medical leave cannot count against you in a seniority system. So if you are lagging behind in pay because of a maternity leave, or because you took time off to care for a seriously ill child, that should not be a justification for lower compensation. My employer recently conducted an audit of pay practices but has made no changes since the audit. Are they still protected from liability? If the company did an audit and reached a good faith conclusion that there were no violations, they are protected. However, if they did an audit and turned a blind eye to discrepancies that were or should have been turned up in the audit, you may argue that they did not in fact make a "good faith determination" and should not be entitled to this protection. If they did find unlawful discrepancies and took no action to correct them, they can also lose their protection. I went to my boss about a pay difference between me and a male co-worker and got fired. Is that legal? No, it is not. Like many other employment laws that are meant to protect employees, the equal pay laws also prohibit retaliation against an employee for seeking to enforce her rights under the law. You should consult with an attorney as soon as possible to find out what your remedies are. If I file an equal pay lawsuit and win, can I recover my attorneys' fees? Yes. If you prevail on a claim under the equal pay laws, your employer will have to pay whatever damages are awarded by the judge or jury and also your reasonable costs and attorneys' fees incurred in bringing the lawsuit. |
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How slnlaw Can Help
We can help you navigate these issues and get clarity on your rights and obligations, and to help with your self-evaluation if you are an employer who would like to avoid future liability under the Massachusetts Equal Pay Act. You can use the button below to schedule a call back from a member of our team, give us a call at 413-667-2322, or fill out our web form to let us know a little more about your situation.
