United States: The Massachusetts Equal Pay Act: What Employers Need To Know

The Massachusetts Equal Pay Act became effective on July 1, 2018.  It calls for all Massachusetts employers, irrespective of size, to pay men and women the same for comparable work.  The new law, which amended G.L. c. 149, Section 105A, provides in pertinent part:

"No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work."

This is a much broader standard than the federal equal pay law which calls for equal pay for equal work. The new law imposes strict liability, i.e., even if one believes in good faith that

they are compliant but are not, one is liable for damages under the bill as enacted. Multiple damages, costs and attorneys' fees are recoverable by the employee, and the employee can sue in

state Superior Court to recover these damages. The definition of "wages" is broad-based., i.e., it encompasses "all forms of remuneration for employment." This definition includes all forms of incentive pay, commissions, bonuses, profit-sharing, deferred compensation, vacation pay, retirement pay, insurance, expense accounts and paid time off. Salary history has no effect under the law.

"Comparable work" is defined under the law as work requiring substantially similar skill, effort and responsibility, and which is performed under similar working conditions.  Minor differences in skill (experience, training, education and ability), effort (physical or mental exertion) or responsibility (degree of discretion or accountability) and working conditions (environment, hazards and shifts) will nor prevent two jobs from being considered "comparable" as a matter of law. Also, job titles alone do not establish what may be considered comparable work under the law.

There are several systemic exceptions to the equal pay requirement which include seniority, a merit based system of pay, a system that measures earnings by quantity or quality of production,

sales or revenue, the geographic location in which the job is performed, education, training and experience to the extent such are reasonably related to the job at issue and travel requirements. The law defines a "system" as a "plan, policy or practice that is predetermined or predefined and used by managers and others to make compensation decisions." It must be uniformly applied in "good faith without regard to gender."

These systems are defined as follows: A "seniority system" is "a system that recognizes and  compensates employees based on length of service with the employer." A so-called "merit system" is "a system that provides for variations in pay based upon employee performance as measured through legitimate, job-related criteria." The Attorney General's guidance on the Act offers an example of a merit system which consists of a "written performance rating plan or policy that measures employee performance on a set scale from 'unsatisfactory' to 'exceeds expectations' and takes such ratings into account when setting salary." A system that measures earnings by quantity or quality of "production, sales or revenue" is one allowing for variations in pay "based upon the quantity or quality of an employee's inpidual production... or sales or other revenue generation." This may include a commission structure of some sort. Pay differential may be allowable if based upon education, training and experience "that is reasonably related to his or her job and thus a valid reason for paying that employee more than another employee performing comparable work." The example provided by the guidance is a situation where a bookkeeper has an advanced accounting degree vs. one who does not, as accounting skills are relevant to the job. 

Geographic location may justify a pay variation where the cost of living or the relevant labor market differs. Where travel is a regular and necessary condition of one's job, it may justify pay disparities. Regular commuting to or from a work location, however, does not constitute "travel" for purposes of the law. Moreover, employees paid on an hourly basis may be paid based upon the number of hours worked. Under the law, prospective employers may not seek a job applicant's salary history either from the applicant or the applicant's employer. Also, the law specifically states that "an employee's previous wage or salary history may not be used as a defense to a claim of unequal pay." Two very limited exceptions apply here: 

  1. To confirm wage history voluntarily shared by the prospective employee; and
  2. After an offer of employment with compensation has been made to a prospective employee. This means that employers may not seek salary history on their own either through an agent or job placement service company.

There is nothing in the law, however, which prohibits an employer from asking a prospective employee about his or her general compensation needs or expectations. Clearly, such inquiries must be done very carefully and succinctly to avoid running afoul of the law.

It is also important to note that, under the new law, employers "may not prohibit employees from discussing either their own wages or their coworkers' wages or from disclosing wage information to any person or entity." An employer may, however, prohibit human resources and supervisory personnel from discussing other employees' wage information.

The penalties for violation of the law include:

  1. The amount of unpaid wages – that is, the amount the employee was underpaid;
  2. Double the unpaid amount; and
  3. Recovery of reasonable attorneys' fees and costs.

Also, the law contains an "anti-retaliation" provision which prohibits the employer from attempting to "punish" the employee for reporting a violation of the law, or formally or informally complaining about same. Retaliation includes "any threat, discipline, discharge, demotion, suspension or reduction in employee hours or compensation."

Protect Yourself

Employers may protect themselves from liability by conducting a good faith self-evaluation of current pay practices within the previous three years. The objective must be to eliminate unlawful pay disparities among employees performing comparable work. Eliminating unlawful gender-based pay disparities means adjusting salaries/wages so that employees performing comparable work are paid the same.

Performing a good faith self-evaluation means that the employer makes a genuine attempt to identify any unlawful and unjustified pay disparities among employees performing comparable

work, and to eliminate the same. Determining which pay differentials may be acceptable should be done immediately in order to establish an "affirmative defense" to any claims under the law "A self-evaluation that is conducted so as to achieve certain pre-determined results...or to justify

known disparities likely will not qualify as good faith."

The Act provides a complete defense to any employer "that has conducted a good faith, reasonable self-evaluation of its pay practices within the previous three years and before an

action is filed against it." Whether a self-evaluation is reasonable under the law will depend upon the size, scope and complexity of the employer's workforce. Eliminating illegal pay disparities means adjusting pay for comparable work. The law does not allow an employer to reduce wages

in order to do so. Retroactive pay for historical disparities is not required under the law.

The Attorney General's guidance states: "Employers should consult with legal counsel about their options and what type of analysis is most appropriate for their organizations."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions