The State of Massachusetts has enacted new legislation designed to eliminate differences in pay between men and women based on a lower salary history. Nationally, women are paid 79 cents for every dollar that men earn, according to the United States Census Bureau. To address this disparity, Massachusetts lawmakers passed a new law that provides more transparency in an employer’s compensation structure.
Pursuant to the new law, effective July 2018, an employer may not:
– Prohibit an employee from inquiring, discussing or disclosing wage or benefits information with other employees,
– Screen job applicants based on their wage, benefits or other compensation or salary histories,
– Require that a job applicant’s prior wages, benefits or other compensation or salary history satisfy minimum or maximum criteria,
– Request or require as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment, that a job applicant disclose prior wages or salary history, or
– Seek the salary history of a prospective employee from any current or former employer absent written authorization from the individual and only after an offer of employment with compensation has been made.
One of the primary purposes behind such restrictions is to prevent employers from setting a new employee’s wage at a lower level simply because the individual previously earned less, an issue that affects women more often than men. Rather, employers must set the new employee’s salary at a level it believes approximates the value of the employee’s skills, education and experience.
In an effort to broaden the impact of the new law, employers must ensure employees are paid the same wage for “comparable work,” which is broader than the same or equal work. “Comparable” means work that requires substantially similar skill, effort and responsibility and is performed under similar working conditions. Similar to the standard applied by the Department of Labor when investigating potential violations of the Equal Pay Act or Fair Labor Standards Act, a job title or job description alone shall not determine whether two jobs are comparable. Factors that can be relied upon to support a difference in pay include: seniority with the employer (excluding time spent on pregnancy-related leave or parental, family and medical leave); a bona fide merit system; a bona fide system which measures earnings by quantity or quality of production or sales; the geographic location of the job; education, training or experience to the extent such factors are reasonably related to the particular job in question and consistent with business necessity; or travel, if the travel is a regular and necessary condition of the particular job.
In an action to enforce the provisions of the new law, the employer may not rely upon the employee’s prior salary history as a defense to not paying the same wage rate for comparable work.
Employers shall be required to post a notice in their workplaces notifying employees of their rights under the new law.
Other states have made and are making similar efforts to pass such legislation, as have federal lawmakers. Federal agencies and contractors also have similar transparency and disclosure requirements. Employers in Massachusetts have almost two years to prepare for this new law. In addition, employers with locations in other states should anticipate the passage of similar laws in those jurisdictions.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including discrimination defense and legal compliance diligence, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.