Effective January 1, 2018, Massachusetts’ equal pay law will impose new and broad sweeping requirements on employers. At its core, the law prohibits gender-based pay disparities. It also takes steps to encourage transparency regarding compensation among employees, and to reduce the emphasis on compensation inquiries during the hiring process. The recently enacted amendments are designed to further ensure that salaries for men and women are equal for equal work.
The law previously prohibited the payment of differential wage payment “as between the sexes” for “work of like or comparable character.” The new law amends this language and includes additional provisions to reinforce the prohibition of discrimination “on the basis of gender in the payment of wages” for “comparable work.” “Comparable work” is defined as “work that is substantially similar in content and requiring substantially similar skill, effort and responsibility and performed under similar working conditions.” The law also contains new exceptions for pay variations based on:
- A bona fide merit system
- A bona fide system that measures earnings by quantity or quality of production or sales
- Geographic location, or
- Education, training, or experience, to the extent such factors are reasonably related to the particular job in question and consistent with business necessity
A violation occurs when a discriminatory compensation decision or practice is adopted, when an employee becomes subject to a discriminatory compensation decision or practice, or when an employee is affected by application of a discriminatory compensation decision or practice. Each discriminatory paycheck shall be deemed a violation. Additionally, the law prohibits employers from reducing the pay of any employee to resolve a gender-based pay disparity.
The amended law further prohibits employers from:
- Banning employees from talking about their own salaries or the salaries of others
- Screening job applicants based on their wages or salary histories, which includes requiring or requesting that applicants disclose wage or salary history to be considered for a position
- Seeking the salary history of a prospective employee from a current or former employer, except after a formal offer of employment and with written consent of the prospective employee, or
- Retaliating against an employee for disclosing, discussing, or inquiring about compensation, or opposing or complaining about unlawful wage differentials
The law encourages employers to take steps to remedy gender-based pay disparities. Specifically, it creates an affirmative defense for any employer who, within the preceding three years, has completed a good-faith self-evaluation of its pay practices, and can demonstrate reasonable progress has been made to eliminate gender-based pay differentials, if any, for comparable work. An employer may design its own review, provided that it is reasonable, or may conform to templates, forms, and guidance that the Massachusetts attorney general will provide.
The law requires employers to post a notice in their workplaces that notifies employees of their rights to equal pay for comparable work. As part of the legislations, a special committee will assemble to investigate, analyze, and study the factors, causes, and impact of pay disparity based on gender.
The statute of limitations for violations is three years. Damages for violating the law shall be the amount of unpaid wages plus an equal amount in liquidated damages, as well as attorney’s fees.
 An employer may prohibit human resources employees, or others whose job responsibilities require access to other employees’ compensation information, from disclosing compensation information without prior written consent from the employee whose information is sought.