Massachusetts Equal Pay Act

In an earlier post we discussed the implementation of the Pregnant Workers Fairness Act that just went into effect.  Another significant update to the Massachusetts employment landscape is coming down the pike and taking effect on July 1, 2018:  the Massachusetts Equal Pay Act (MEPA).  The Act will prohibit discrimination in the payment of wages for “comparable work” based on an employee’s gender.  While it was already illegal to pay women and men differently based upon their gender alone, the Act further defines and gives teeth to remedy such pay disparities. 

The Act also prohibits employers from inquiring about a potential employee’s salary history, and prohibits employers from barring employees from discussing their wages.  The purpose behind these restrictions is to help close the disparate pay gap that exists between men and women in Massachusetts.  The Attorney General cites that in Massachusetts women earn 84.3% of what men earn in full time positions.

Of course, the new Act contains exceptions in explaining pay disparities.  If the employer can show a legitimate business interest for the disparate pay decision, then it will not be in trouble under the Act.  Such interests could include different geographic location, differences in education or training related to the job, or even a bona fide seniority system.  Employers also have an affirmative defense under the Act if they perform a good faith self-audit once every three years to address any wage disparities and check for issues.

The penalties for violating the Act are harsh and include double damages, and costs and attorney’s fees.  The statute of limitations is 3 years; however, in following the Ledbetter case, every time a paycheck is issued in the disparate wage amount, the statute of limitations begins ticking anew.

The Massachusetts Attorney General’s Office recently issued some guidance on how employers can interpret the new law’s provision and come into compliance.  While helpful, it is likely that the courts will be busy over the next several years further clarifying how it is to be applied.

Pregnant Workers Fairness Act

A very important update in Massachusetts employment law just went into effect on April 1, 2018:  the Pregnant Workers Fairness Act.  The Act amends the current discrimination law to prohibit employment discrimination on the basis of pregnancy and pregnancy-related conditions, including postpartum issues such as lactation.  The Massachusetts Commission Against Discrimination (MCAD) issued some guidance on the new Act here.

In short, employers cannot take an adverse action against an individual who requests or uses a reasonable accommodation for pregnancy or pregnancy-related condition.  The MCAD emphasizes the need for an employer to engage in an “interactive process” with the employee, which is essentially the need for the parties to communicate, in good faith, about what accommodations can be made to ensure that the employee is able “to perform the essential  functions  of  the  job  while  pregnant  or  experiencing  a  pregnancy-related  condition,  without undue hardship to the employer.”

There are also new restrictions on when and for what the employer can ask for medical documentation, as well as new notice requirements from the employer to employee regarding their rights under the Act.

Whether you are an employee or an employer, make sure you read the Act in full to understand its implications, penalties, and protections.

Insurance Claims and Code Upgrades

    When you have a catastrophic event at your home and you have insurance, one of your thoughts might be thank goodness I have insurance. And it is good that you have insurance.  But, the question quickly arises as to what the insurance will coverage.  What insurance covers and what it does not is a pretty confusing question and often depends on what riders you have.

     When your house has damage, say, from a fire, all the repairs have to be done to the current code.  In other words, if your home had electrical wiring from 1968 and it was damaged in the fire, then all the electrical must be brought up to current code.  Insurance policies in Massachusetts traditionally provide code upgrades up to to 10% of the policy.  If you have a $500,000 policy, then the insurance company will pay $50,000 towards code upgrades.  

     A catastrophe is a time of great stress.  You may find that insurance adjusters and/or contractors show up at the fire to try to get you to sign with them.  Do not sign with anyone on the day of the fire.  If your home is a total loss, then you probably don't need an adjuster, you are going to get the whole of the policy.  You don't need anyone to advocate for you and take 10% of your proceeds.  In any event, do not sign any documents the day of the fire.  Take a little bit of time to take a deep breath and take stock.  I promise you, adjusters will be happy to help you, if you decide you need them a few days later.

     When meeting with contractors, find out whether code upgrades are included in the contract price or not.  If they are not included in the price, then secure estimates for the cost of those upgrades before signing with the contractor.  Also, check the scope of the work carefully.  If your contract is tied to the insurance adjuster's scope of work, you may find that certain things are excluded from the scope of the work because the adjuster did not note the issue.  For example, if the insurance company deems that just one wall of your living room needs painting, then double check to see if the quote from the contractor provides for a fresh coat of paint for the whole room or just that one wall.  If that fourth wall is not included, then you will either not get it painted or you will pay extra for it.

     Sometimes, a contractor can swap out something the insurance will pay for, for an upgrade or something you want done, that is not covered by the insurance money.  If you plan on doing some "while we're at it" changes, be clear with the contractor as to the cost. If you are foregoing something called for in the insurance adjuster's report, then make sure all the changes are in writing.

     Finally, just because you receive funds from the insurance company, that does not mean the contract is entitled to them.  Similarly, just because the insurance company says something needs to be fixed that does not mean that your contractor is obligated to do that work.  Review all documents carefully.  Understand the scope of the work included and understand what unknowns might possibly arise during the work.  If you have questions or are unsure, ask questions and consider consulting with an attorney before you sign the contract.