Webinar Recap: Massachusetts Pay Equity Law

The Massachusetts Pay Equity Act (MEPA) provides that “No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” The law defines comparable work as work that requires substantially similar skill, effort, and responsibility, and is performed in the same working conditions.

In addition to this, these are the pre-employment salary inquiries that Massachusetts employers must follow and keep in mind:

• May not ask applicants (or their current and prior employers) about wage history unless:
• FAQs state that an employer may ask an applicant about salary expectations
• May seek salary information from public sources

What does the Attorney General’s Office consider as comparable work?

In this webinar, we delved into the topic of comparable work, since it is broader and more inclusive that equal work. Comparable work is work that requires substantially similar skill, effort, and responsibility and performed under similar working conditions.

The following is the Attorney General Office’s explanations of comparable work:

• Skill
  • Experience, training, education & ability to do the joB
  • Required, not preferred
  • A preferred and relevant skill may impact an employee’s pay, but it does not determine comparability of positions
    
    
• Effort
  • Amount of physical or mental exertion required to perform the job
  • Elements of the position that cause or relieve mental fatigue and stress
  • Standing, lifting, prolonged visual focus, etc.
    
    
• Responsibility
  • Degree of discretion or accountability required to perform (Essential functions of the position and duties regularly required)
  • Amount of supervision the employee receives or exercises
  • Decision-making such as determining policy or procedures, purchases, investments
    
    
• Working Conditions
  • Environmental and other similar circumstances customarily taken into consideration in setting salary or wages
  • Physical surroundings – extreme temperatures or noise, intensity & frequency of elements
  • Hazards encountered – chemicals, fumes, electricity, heights, dangerous equipment
  • Time and day work is performed, customarily associated with shift differentials

Potential Liability and Employer Protection

An employer can receive an affirmative defense to liability in a Pay Equity Claim if:

• Employer completes self-evaluation of gender-based pay differences among employees performing comparable work
• The self-evaluation is reasonable in scope and detail for an employer of its size and resources
• Self-evaluation included the employee(s) and position(s) that are the basis of the legal action
• Employer can demonstrate reasonable progress towards eliminating “unlawful” gender-based pay disparities

How To Implement A Massachusetts Pay Equity Program

Here is our recommended approach to creating a pay equity program:

• Engage your leadership team
• Evaluate your internal and external resources
• Secure counsel 
• Identify comparable groups within your organization 
• Collect pay data
• Collect factor data, such as service, performance, reviews, education, and location
• Perform overall group analysis, including average and median pay analysis in the company 
• Perform an individual comparison 
• Identify “unlawful” gender-based pay differentials 
• Institute a remedial plan at once or in stages 
• Communicate and train your employees
• Make a plan to update your program annually