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.