United States: New Massachusetts Pay Equity Law

On Monday, August 1, 2016, Governor Baker of Massachusetts signed into law a bill strengthening protections against gender-based discrimination in the pay provided to employees for "comparable work". The statute (the "Pay Equity Law") will become effective on July 1, 2018. Although equal pay is currently required under both federal and Massachusetts law, the new law establishes a definition for "comparable work" and puts in place a series of employee-friendly restrictions on an employer's ability to use and control compensation information.

What is new in the definition of "comparable work"?

Current Massachusetts legislation prohibits an employer from discriminating, based on gender, in the payment of wages for comparable work, although the meaning of "comparable work" has generally been left open to interpretation. The Pay Equity Law, however, defines "comparable work" as work requiring a substantially similar skill set, effort, and responsibility and which is performed under similar working conditions (which include the circumstances customarily taken into consideration in setting salary or wages, such as reasonable shift differentials and a position's physical surroundings and hazards). Whether work is "comparable" may not be determined by a job title or job description alone. The new law also expands the concept of wages to include all forms of remuneration for employment, suggesting that it may include benefits and other forms of compensation such as incentive equity and participation in nonqualified deferred compensation plans.

The law also limits the concept of "comparable work" by outlining that compensation differentials may be permissible if based on:

  1. A system rewarding seniority, provided that seniority is not reduced due to pregnancy or protected parental, family, or medical leave;
  2. A merit system;
  3. A system measuring earnings by quantity or quality of production, sales, or revenue;
  4. The geographic location in which the work is performed;
  5. Education, training, or experience to the extent reasonably related to the position; or
  6. Travel, if regular and necessary for the business.

Employers should consider evaluating, using the new statutory definitions, which positions within their organization may involve "comparable work," and review compensation information of employees within those positions for any disparities, particularly between employees of different genders. An employer that discovers a violation of the new rules may not reduce the compensation of any employee as a form of remediation but instead must raise the compensation of the other affected employee(s) to correct the violation.

How does the new law affect current company policies regarding compensation?

The Pay Equity Law makes it unlawful under state law to prohibit employees from disclosing their current compensation information or discussing their or another employee's compensation (though restrictions are permissible on employees whose jobs require or allow access to other employees' compensation information). Such prohibitions generally are already unlawful with respect to non-supervisory, non-managerial employees through the National Labor Relations Act. However, in light of this change, we recommend reviewing employee handbooks and policies and removing prohibitions on employee compensation disclosures, which are often found in confidentiality provisions. Such restrictions should not be included in any new employment agreements, offer letters, or incentive equity awards and we recommend consulting with counsel regarding existing agreements that contain such provisions.

The law will also restrict a prospective employer's ability to request and use a job applicant's current and historical compensation information. A prospective employer may not request that either the applicant or a current or prior employer disclose such information and may not require that a job applicant's compensation history meet certain criteria. A job applicant may, however, voluntarily disclose compensation information, at which point the prospective employer may use the information for further compensation negotiations. After such disclosure by the job applicant, or following a negotiated offer of employment that includes compensation information, a prospective employer may seek to confirm such compensation history. Notably, though, the law provides that an employee's previous wage or salary history is not a defense to an action for discriminatory pay. We recommend updating and implementing human resources policies regarding requests for and use of job applicant compensation information before the new law takes effect, as such policies may lead to impermissible disparities in pay between comparable positions, and further liability down the road.

What penalties might an employer face for violation of the new law?

Violation of the Pay Equity Law generally leaves an employer liable in the amount of twice the affected employee's unpaid compensation (the gap between the employee's pay and the pay received by an employee of a different gender performing comparable work), plus an award of reasonable attorneys' fees and costs. A job applicant may also recover any damages caused by an employer's impermissible inquiry into, or use of, the applicant's compensation history. An employee or job applicant may bring an action on his or her own behalf or on behalf of other similarly situated employees or applicants.

The statute of limitations will run for three years from a violation. Similar to current federal law, violations under the new statute may occur both when a discriminatory pay practice is adopted or a discriminatory pay decision is made and when an employee is affected by application of the discriminatory pay practice or decision, including each time that disparate compensation is paid to the employee.

What next steps should an employer consider to address potential gender parity pay claims?

The Pay Equity Law provides to an employer an affirmative defense if, within the previous three years and prior to the filing of a legal action against it, the employer has completed a good-faith self-evaluation, reasonable in detail and scope, of its pay practices and can demonstrate reasonable progress in eliminating gender-based compensation differentials. An employer that undertakes a self-evaluation that is not reasonable in detail and scope, but can demonstrate reasonable progress in eliminating the gender-based compensation differentials, will not be entitled to an affirmative defense but will only be liable for the amount of unpaid wages (and not liable for double damages). You may contact a Ropes & Gray Labor & Employment advisor to discuss whether an audit is the right approach for your organization.

Again, the Pay Equity Law will come into effect on July 1, 2018. Although the new law builds on existing legislation, many areas may compel changes to current practices, and others may be challenging to navigate. We therefore recommend taking a proactive approach, well prior to July 1, 2018, to ensuring your compensation practices are compliant.

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
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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