Massachusetts Attorney General Issues Guidance to Help Employers Prepare for the Equal Pay Act

image credit: pixabay

image credit: pixabay

With just four months until a revised Massachusetts Equal Pay Act takes effect and unleashes what is likely to be a wave of pay discrimination lawsuits, the state’s Attorney General has issued guidance to help employers understand and implement the new law. The guidance describes key elements of the new statute, which takes effect on July 1, 2018, and provides ideas on how employers can protect themselves against pay discrimination claims by self-auditing their compensation practices and beginning to address any sex-based disparities that they may uncover.

The new Equal Pay Act re-writes a 1945 law that sought to address pay discrimination but failed to do so; on average, full-time working women in the Commonwealth earn about 84% of what men earn, and the gap may be larger for minority women. Most significantly, the Act will make unequal pay for “comparable” work illegal and will subject employers to damages in the form of double the amount of any lost pay, plus reimbursement of employee legal fees. Employers will not be permitted to address existing pay disparities by reducing the wages of higher paid employees. They will be barred from even asking prospective employees about their salary histories until after a job offer at a specified wage is made. Neither may employers prohibit employees from exchanging information about their wages.

“Comparable work” is both a critical and difficult issue for companies to understand, and the Act helps employers understand what it means. Since job titles will not be determinative and comparisons of skill, effort and responsibility will be – the Attorney General’s new Equal Pay Act guidance offers insight into conducting appropriate self-audits of pay practices. This tool can provide legal cover to employers, who can escape liability for existing pay disparities by identifying problems in their own work forces and making progress to resolve them. As a result, virtually all employers should consider a self-audit as they keep in mind that the Act makes pay disparities between genders illegal regardless whether they occur intentionally or not.

For some employers, a self-audit might be a relatively straight forward and simple process and way to avoid a pay discrimination lawsuit. Many employers, however, will quickly hit complexities in determining which jobs to compare to which and how, if at all, to consider the effects of several criteria the Equal Pay Act permits as bases for pay disparities. In these cases, help from a professional compensation specialist may be necessary. In all cases, employers should consider the ramifications of the revised Equal Pay Act in the coming weeks and be sure they understand how to both prepare for it, and to avoid a pay discrimination lawsuit.

Legislators Consider Law that would Grant Broad Sexual Harassment Powers to Massachusetts Attorney General

If there isn’t already enough for employers to worry about amid the plethora of sexual deviance reports that have hit the media lately, add to the list the prospect of an amended anti-discrimination statute that would give the Massachusetts Attorney General broad investigative powers over all things harassing or discriminatory. If passed, the proposed new law would drastically change the sexual harassment landscape by inserting the power of government into the discrimination law arena in a dramatic new way.

In late January, a bill captioned “An Act to enhance investigations of sexual harassment and discrimination” was introduced by State Senator Cynthia Creem. It proposes to amend Mass. Gen. L. ch. 151B, which already provides remedies against sexual harassment and other discriminatory misconduct, by empowering the Massachusetts Attorney General to investigate those same claims when it sees fit. Tools at the Massachusetts Attorney General’s disposal will include the power to demand production of documents and witnesses for sworn testimony. The office of the Massachusetts Attorney General can use its investigative findings to negotiate resolutions with employers or file suit for injunctive relieve, civil penalties of up to $50,000 per violation of law, and damages that include lost wages, emotional distress, and reimbursement for investigative expenses and legal fees. As an apparent public relations deterrent to sexual harassment, the proposed bill would make findings of potential discrimination made by the Massachusetts Commission Against Discrimination open to public inspection, an event that no employer will want to experience.

Regardless whether the proposal becomes law (it is now being reviewed by a legislative committee), it represents yet another warning about sexual behaviors that employers cannot afford to ignore. Massachusetts anti-discriminations laws already make sexual harassment illegal and require employers to maintain an effective anti-harassment policy that is distributed at least annually to all employees. It also encourages sexual harassment training of employees, especially managers. Given the huge financial stakes in this area, the prevalence of sexually inappropriate behaviors in Massachusetts workplaces, and the encouragement victims are currently receiving to complain about harassment when it occurs, all employers will be well-served by a thorough evaluation of their workplaces and procedures. In many cases, a training program for managers or others will make risk/reward sense.

Massachusetts Law Continues to Protect against Gender Identity Discrimination Despite Federal Pronouncment

When Attorney General Jeff Sessions recently announced that his Justice Department rejects the idea that transgender people are protected under Title VII, the federal workplace discrimination statute, it received quick condemnation from a variety of sources. Significant as the proclamation may be at the federal level, however, Massachusetts residents need not be concerned, or pleased, as the case may be. Under Mass. Gen. L. ch. 151B, transgender and gay people remain well protected against employment discrimination based on their gender identities. They can continue to file complaints based on it at both the MCAD and in state courts.

The federal action comes at a time when Mr. Sessions’ justice department has been hostile to Title VII protections of the broader LGBT community. His Justice Department has argued that civil rights laws do not protect against sexual orientation discrimination. Under Title VII, which was passed by Congress in 1964 as part of the Civil Right Act, discrimination based on “sex, ” among other things, is illegal. The Obama administration and others, including the Equal Employment Opportunity Commission (EEOC), have interpreted “sex” as covering individuals based on gender identity and sexual orientation.

Under the Massachusetts anti-discrimination statute, it’s unlawful for an employer, “because of the race, color, religious creed, national origin, sex, gender identity, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, genetic information, ancestry or status as a veteran of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.”