Lawsuits under the Revised Equal Pay Act are Out of the Gate Quickly

Well, that didn’t take long.

On the first business day that amendments to the Massachusetts Equal Pay Act were in effect, the first lawsuit was filed in Boston, according to published reports. It was brought by a female flutist in the Boston Symphony Orchestra who claims she was paid less than a male oboist, who also is part of the BSO’s woodwind section. According to the suit, the plaintiff has suffered wage discrimination for years because her work playing flute is comparable to her male counterpart’s work playing oboe. Regardless how the case turns out, it stands as yet another warning to employers who have yet to consider the effects that the revised Equal Pay Act will have on their businesses.

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The day that amendments to the Massachusetts Equal Pay Act went into effect, a female flutist in the Boston Symphony Orchestra brought forward a lawsuit.

The primary change to the Act, which has been around for decades, involves the comparison between male and female workers. That required showing was until now virtually impossible to make. The Equal Pay Act now makes it far easier for plaintiffs. The law as revised provides that employers may not discriminate in the payment of wages between men and women in “comparable” jobs – those that require substantially similar skill, effort and responsibility and are performed under similar conditions.

What this means is open to interpretation, leaving the courts to deal with pay discrimination claims one at a time and employers to worry about whether their practices pass muster. With steep potential damages and only a narrow set of viable excuses for unequal pay between the genders, employers need to consider avoidance options quickly. The law provides for a safe haven of sorts for companies that perform self-evaluations and make progress toward addressing illegal pay disparities before a suit is filed. While the conditions under which this makes sense are up for debate – it may not be a useful exercise for all companies – employers who fail to consider that option and others do so at their own peril.

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.