The Massachusetts Equal Pay Act (MEPA) goes into effect on July 1. Small businesses in the state may need to make some adjustments to their hiring and interviewing processes to comply. Among other things, the amendment changed the definition of comparable work, prohibited employers from asking applicants about salary history and established a safe harbor for employers who conduct pay audits.
Comparable Work
The new definition of “comparable work” is work that “requires substantially similar skill, effort, and responsibility.” The guidance notes that this is a broader definition than the “equal work” standard under federal law. The guidance also cautions employers not to assume that jobs in different business units or departments are not “comparable” unless the jobs, in fact, require different skills, effort and responsibility. MEPA is a “strict liability” statute. An employer’s intent to discriminate against employees of one gender on the basis of pay is “irrelevant” to the analysis.
Under MEPA, differences in pay for comparable work are acceptable only when based on one of the following factors:
- A seniority system (that is not affected by pregnancy, parental, or family leave).
- A merit system.
- A system measuring earnings by quantity or quality of production, sales or revenue.
- Geographic location.
- Education, training or experience (as long as reasonably related to the particular job in question).
- Travel that is a regular and necessary part of the job.
New Interview Rules
Interviewing job candidates in Massachusetts, you cannot ask outright about a candidate’s salary history, past or present. Some specific questions you should stay away from entirely. Avoid leading questions and stay away from questions hinting at the past or current salary question. Asking a candidate how they came to a particular salary target or why they feel this salary is appropriate for them could be construed as asking about past pay.
MEPA also adds several key protections for employees and job applicants:
- Employers may not prohibit employees from disclosing or discussing their wages.
- Employers may not seek the salary or wage history of any prospective employee before making an offer of employment that includes compensation and may not require that a prospective employee’s wage or salary history meet certain criteria.
- Employers may not retaliate against any employee who exercises his or her rights under the law.
Interviews outside of Massachusetts
The amended pay law applies to employees with a “primary place of work” in Massachusetts and includes those who work from a Massachusetts base of operations but travel out of state. This includes even when the interview process is outside of Massachusetts, but there is a possibility that the employee will work in Massachusetts. Employer’s indecision on the final placement of an employee during the pre-hire stage is not a viable defense.
Employer Self-Evaluation
Employers should create salary ranges for new positions based on the actual value the job creates, but also looking at your current employees and making sure people in similar roles are earning roughly the same amount. The value of the position need to determine the value of this particular job and then move forward from there.
Under the amended MEPA, employers may establish an affirmative defense against liability if the employer has:
- Conducted a reasonable and good faith self-evaluation of its pay practices within the previous three years and before an employee files an action.
- The employer can show reasonable progress toward eliminating any unlawful discriminatory wage differentials discovered through the self-evaluation. Employers bear the burden of proving they have met these two requirements.
MEPA Violations
An employer who violates MEPA is generally liable for twice the amount of the unpaid wages owed to the affected employee(s)—the differential between the employee’s wages and the wages paid to an employee of a different gender performing comparable work—plus reasonable attorneys’ fees and costs. MEPA makes clear that employees’ salary histories are not a defense to liability. Moreover, an intent to discriminate based on gender is not required to establish liability under the law.
