Equal Pay Act

Massachusetts Strengthens Its Equal Pay Act
News Brief

The Massachusetts Equal Pay Act (MEPA), passed in 1945, was the first state law of its kind. But it hasn’t provided enough detail to be useful to employees or stiff enough penalties to be compelling for employers. The amendments to MEPA, which take effect July 1, 2018, make the law significantly more relevant.

 

Equal Pay for Equal Work
Under the updated MEPA, employers are prohibited from paying employees who do “comparable work” different wages because of sex. Wages include all forms of compensation, including benefits. Comparable work is work that involves substantially similar skill, effort, and responsibility and is performed under similar working conditions. Employees who do comparable work may not necessarily have the same duties or even be in the same department.

 

Acceptable Reasons for Pay Differentials
The only acceptable reasons for a pay differential between employees of different sexes who do comparable work are the following:

  • A seniority system (time missed because of pregnancy or protected parental, family, or medical leave may not reduce seniority);
  • A merit system;
  • A system that measures earnings by quantity or quality of production, sales, or revenue;
  • The geographic location in which a job is performed;
  • Education, training, or experience—to the extent such factors are reasonably related to the job;
  • Travel that is a regular and necessary condition of the job.
  • Note that there is no catch-all provision, such as “or any other factor not related to sex.” Employers should ensure that differentials can be fully explained by one or more factors from this six-point list.

 

Salary History Inquiry Ban
The law makes it illegal for employers to ask an applicant about their salary history until an offer of employment that includes compensation has been made. If an applicant volunteers their salary history, an employer may verify it, but employers should not in any way encourage candidates to disclose this information. Salary history is not an acceptable reason for a pay differential.

Discussion of Wages Must Be Allowed
MEPA bans pay secrecy practices and policies, such as blanket prohibitions on discussing wages or assertions that wages are confidential.

 

An employee’s right to discuss their wages is protected federally by Section 7 of the National Labor Relations Act, although it only applies to non-management and requires that employees are acting together to improve their wages. The Massachusetts law, however, applies to all employees and does not require any group action. For instance, under MEPA, a middle manager may go to their supervisor and inquire about the wages of the CFO, their peers, or their subordinates simply because they are curious on their own behalf. They may also discuss their own wages with whomever they like, as well as the wages of other employees who shared that information with them freely.

 

The law does not require that an employer (or other employees) provide an employee with the requested wage information, but it does prohibit any adverse action or retaliation against an employee for asking.

Self-Evaluation and Remediation as a Defense
Employers will have an affirmative defense under the law if they have undertaken a good faith self-evaluation within the last three years and can show that reasonable progress has been made toward eliminating any pay discrepancies. The self-evaluation must be of reasonable detail and scope.

 

Action Items

  • Conduct a self-evaluation. Assess your overall pay structure, pay bands for job groups, and individual wages. Focus on whether differences in pay can be fully and reasonably explained by the six factors allowed under MEPA, and if they cannot, make adjustments.
  • Be aware that you cannot lower the compensation of one or more employees to equalize pay.
  • Remove any policies related to pay secrecy from handbooks, confidentiality policies, and offer letters, and ensure that those with the authority to discipline are aware of the protections provided by the law.
  • Train anyone involved in the interview process to steer clear of salary history questions.
  • Ensure that your application forms don’t ask for salary history. We have a compliant application available in the HR Support Center, which you can find by using the search bar and typing in Employment Application.
  • For additional information, guidance on performing a self-evaluation, and a policy-and-practices checklist, bookmark or download this guide from the Massachusetts Attorney General.

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The HR Support Center News Update

Content Spotlight
Natural Disaster Dialogue

Natural disasters create challenging HR issues and questions that add stress to employers and employees at the worst possible moments — when they need to be focusing on healing, recovery, and rebuilding.

At the HR Support Center, we want to make sure you have a place to turn for help with navigating these challenges, so your employees can get through the crisis.

To help alleviate some potential stress, we’ve put together the top five frequently asked HR questions and answers during an emergency:

  • What is the standard for paying an employee after a natural disaster?
  • Our business is temporarily closed due to inclement weather. We have some employees that offered to work from home until the business can reopen. Can we offer this?
  • What job-protected leaves might apply to a natural disaster?
  • Our company wants to set up a way for their coworkers to donate vacation time to an employee who was greatly affected by this natural disaster. Is this possible?
  • When a business closes due to a natural disaster, is unemployment available to the employees?

 

Download The FAQ

Employment Law

Did You Know?

We’re often asked whether the pay of exempt employees can be reduced if they work less than 40 hours in a week. And the answer is almost always no.

The very idea of the overtime exemption, at least in the case of White Collar employees, is that you are paying them to complete important tasks that require use of their own discretion and are less (or not at all) time-clock-sensitive. You pay them more than the bare minimum and can expect more than the bare minimum in terms of time commitment. But if they can complete their tasks in less than 40 hours – because they have used their discretion well – that’s okay too.

However, there are situations where a pay deduction is allowable:

  • When they are absent from work for one or more full days for personal reasons other than sickness or disability;
  • When an exempt employee is absent for one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide sick leave plan (5+ paid days are offered per year, plus additional requirements);
  • To offset amounts received as witness or jury fees, or for military pay.
  • If an employee is absent, but their time away doesn’t fit into one of the scenarios above, such as a partial day absence for personal reasons or sickness, you may reduce the hours in the employee’s PTO, vacation, or sick leave bank – but only if your policy says you will do that. And if the employee has used up all the hours in their bank already, you must still pay their full salary.

    Check out the HR Support Center to learn more. We have numerous 2-Minute HR Trainings on the White Collar Exemptions, as well as a new training on Exempt Employee Payroll Deductions. We also have a “Safe Harbor Deduction” policy in the Policy Library, which can offer some legal protection if added to your handbook and followed by management.

Employee Relations

Many Managers Are Uncomfortable Communicating with Their Employees – Here’s How You Can Help Them

Here’s a startling statistic: Nearly 70% of managers are uncomfortable communicating with their employees. That number comes from a Harris Poll conducted on behalf of Interact, and it indicates that managers may at times shy away from doing basic management duties.

If uncomfortable managers avoid giving feedback, offering praise, showing vulnerability, providing direction, or communicating in general, they’re not helping the bottom line. Poor employee performances will go unaddressed. Star performers won’t feel recognized. Employees may distrust their managers and not admit mistakes. Efficiency and productivity won’t be a good as they could be, and that’s money down the drain. While some managers might do better in non-management positions, others need only a little training, practice, and experience to overcome their discomfort. Here are a few ways you can develop new managers and improve the performances of existing ones:

 

Best Practices Before Promoting Someone to Management

  • Identify potential managers based not just on individual performance, but likelihood of success when put in charge of a team. Management requires a specific skill set—the ability to lead, to take decisive action, to facilitate compromise, to defuse escalation, to assess performance with clarity and kindness. When considering whom to promote to management, look especially for those employees who exhibit these skills or show signs that they have the potential to develop them.
  • If you see employees with the potential for leadership, give them informal leadership duties and see how well or poorly they do. Some discomfort on their part is expected, so don’t rule out someone just because they’re not fully comfortable the moment they’re asked to lead something. That said, if their feelings of discomfort persist as they’re given more informal leadership responsibilities, they’re likely not well suited to a formal leadership position—at least not yet.
  • Provide relevant skills training. If you identify an employee with strong potential for leadership in the organization, prepare them to take the role by teaching them the skills they’ll need to be successful. Consider paying for them to attend workshops or conferences. A mentorship program could also be helpful if you have good managers to help onboard new managers.

 

Best Practices with Current Managers

  • Provide skills training in needed areas. It’s possible that a manager may be uncomfortable communicating with employees because they’ve never really been taught how to do it. If that’s the case for any of your managers, teach them the communication skills they’re lacking. Coach your managers and give them time to practice their managerial skills. When they become more competent, they’ll feel more confident.
  • Manage your managers. Like any employee, managers need direction, guidance, and someone to hold them accountable. Do for them what they do for their subordinates.
  • If a manager’s performance is having negative impacts on the company and guidance and training do not help, you may need to look at putting them on a performance improvement plan. This plan should have clear, attainable goals and a set timeframe for completion. If they improve, great, but if not, then it may be time for the next step.
  • If the performance improvement plan doesn’t result in improved performance, it may be time to move the employee out of management. Employees who excelled as individual contributors may not do well in management, and that’s okay. They may be happier going back to what they were doing before, if that’s an option.

 

“If uncomfortable managers avoid giving feedback, offering praise, showing vulnerability,

Providing direction, or communicating in general, they’re not helping the bottom line.”

 

Management isn’t easy, and some of its duties will be uncomfortable no matter what. That said, the best managers don’t try to avoid unpleasant conversations when those conversations are needed. Because they’re generally comfortable with their managerial responsibilities, they’re able to face the more challenging moments with more confidence and conviction. And that will help the company’s bottom line.