Massachusetts Pay Equity Law Has Implications for California and New York Employers That Seek or Use Applicant Wage History
The Massachusetts Equal Pay Act (“MEPA”) has prohibited employers from paying men and women differently for “work of like or comparable character” since 1945, nearly two decades before the federal Equal Pay Act (“EPA”) was passed and before any other state passed pay equity legislation. This month, Massachusetts Governor, Charlie Baker, signed into law Senate Bill 2119 (“S.2119”), which makes several significant changes to the MEPA, most of which are similar to recent amendments to California and New York equal pay legislation. Notably, however, S.2119 makes Massachusetts the first in the nation to prohibit employers from requesting or seeking an applicant’s salary history. S.2119 can be read in full here.
Once S.2119 goes into effect, on July 1, 2018, the previously undefined term “comparable character” will be replaced by “comparable work,” which is defined as “work that is substantially similar in content and requiring substantially similar skill, effort, and responsibility and performed under similar working conditions.” This new definition mirrors California’s recently expanded Fair Pay Act (“CFPA”), which broadened the scope of claims that can be pursued under the law from claims for jobs that require “equal skill” to claims for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” By comparison, New York Labor Law § 194(1) (“NYLL”) and the federal EPA require equal pay for “equal work.”
The MEPA currently permits variations in pay based on differences in seniority. Once S.2119 goes into effect, however, employers can defend allegedly disparate pay practices by showing that any such disparity is based on: (i) seniority, provided that pregnancy, parental, family and medical leave does not reduce seniority; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; (iv) geography; (v) education, training or experience to the extent such factors are reasonably related to the particular job in question and consistent with business necessity; or (vi) travel that is a necessary condition of the particular job. By comparison, the CFPA and NYLL currently place a different burden on employers to justify wage differentials. For example, geography is not a defense under the CFPA. Likewise, while pay disparities based on seniority, merit, or earnings measured by quantity/quality are permitted under both the CFPA and NYLL, any other factor must be job-related and consistent with “business necessity.” Similarly, both the CFPA and NYLL provide that an employee can defeat certain employer defenses by showing that an alternative practice exists that would serve the same purpose without causing a pay disparity. (more…)