United States: Massachusetts Attorney General Issues Guidance On Updated Pay Equity Law

The Massachusetts Office of the Attorney General recently issued guidance on the new amendments to the Massachusetts Equal Pay Act ("MEPA"), effective July 1, 2018. Although the guidance is extremely detailed and should be reviewed in full, employers should take note of the following details:

  • Coverage

The MEPA and amendments are substantial in scope, covering "nearly all" Massachusetts employers and the "vast majority" of employees, including full-time, part-time, seasonal, per-diem and temporary employees, with few exceptions. There is no minimum number of employees that employers must have to trigger MEPA coverage. State and municipal employers are covered by the law, while employees of the federal government are excluded.

The law covers any employee whose "primary place of work" is in Massachusetts; residency is not a dispositive test. Massachusetts is an employee's primary place of work if they "do most of their work" within the state, and thus, according to the guidance, includes: (1) traveling employees who return regularly to Massachusetts between trips; (2) employees who "spent the plurality" of their time in Massachusetts over the prior year; and (3) employees who telecommute to a Massachusetts work location, despite not being physically present in Massachusetts. If an employee relocates, Massachusetts will be considered the primary place of work upon the first date of actual work within the state.

  • The "Comparable Work" Analysis

Under the MEPA, employers are expected to take a holistic approach to analyzing whether two employees of different genders perform "comparable work." A determination based on job title or description alone will be insufficient. However, job descriptions that "accurately reflect the skill, effort, and responsibility" may be informative to the overall analysis. Employees' jobs may be considered "substantially similar" if they "are alike to a great or significant extent." It is not necessary for the jobs to be completely identical to be comparable.

Multi-state employers are generally expected to compare the wages of their Massachusetts employees to employees performing comparable work "within the same geographic area within Massachusetts...unless excluding out-of-state employees from the analysis is not reasonable under the circumstances."  For instance, if the only other employees performing a comparable role are located outside of Massachusetts, it may be necessary to compare their wages to the Massachusetts employee's wages. However, it bears noting that geographic location is a mitigating factor that multi-state employers may depend upon to justify wage differences.

  • Determining Equal Wages

"Wages" under the MEPA includes "all forms of remuneration for work performed." This includes incentive pay and deferred compensation, as well as "commissions, bonuses, profit sharing, paid personal time off, vacation and holiday pay, expense accounts, car and gas allowances, retirement plans, insurance, and other benefits, whether paid directly to the employee or to a third-party on the employee's behalf." Employers are not permitted to "make up" differences in unequal base wages of employees performing comparable work with other forms of remuneration, such as bonuses.

  • Employee Wage Discussions and Inquiries

Employers may not formally or informally restrict employee discussion of or inquiry into their own wages or those of other employees. In particular, employers may not include terms requiring an employee keep their (or their colleagues') wages confidential in employment documents such as in an offer letter, employment contract, nondisclosure agreement, handbook, etc.

  • Employee Wage History

An employee's salary history is specifically precluded from serving as a basis for unequal pay.  Employers may only ask a prospective employee about wage or salary history to confirm information voluntarily shared by the employee, or after an offer of employment has already been made. The MEPA does not prohibit employers from asking prospective employees about their desired compensation, so long as it is not a disguised attempt to elicit wage history information. Note that multi-state employers who recruit nationally are expected to comply with MEPA's wage history restrictions if Massachusetts may ultimately become the prospective employee's primary place of work. Uncertainty as to the employee's ultimate assignment will not be a defense to MEPA noncompliance.

  • Enforcement & Liability

Employees seeking to enforce their rights under the MEPA may: (1) file a claim in court on behalf of themselves or other similarly-situated employees; and/or (2) file a complaint with the Attorney General's Office ("AGO"). Employees have three years "from the date of the alleged violation" to file a claim in court. Employees are not required to lodge complaints with their employer, the Attorney General's Office, or the Massachusetts Commission Against Discrimination ("MCAD") before bringing an MEPA claim to court.

An employer found liable under the MEPA will be required to pay double damages (i.e. twice the amount of the employee's unpaid wages), and attorneys' fees are recoverable if a judgment is awarded to the plaintiff.

  • The Self-Evaluation Affirmative Defense

An employer may have a defense if it participated in a "good faith" self-evaluation of comparable jobs and pay practices. Whether the self-evaluation was done in "good faith"—i.e. whether it was "reasonable in detail and scope"—will be determined on a case-by-case basis. If pay inequities are identified, an employer must "take meaningful steps," constituting "reasonable progress," towards rectifying the inequities, a determination which will be largely fact-dependent.

Self-evaluations and remedial steps taken by employers are inadmissible as evidence to prove an MEPA or Chapter 151B violation when the alleged violation occurred: (1) "before the date the self-evaluation was completed;" (2) "within 6 months after the self-evaluation was completed;" or (3) "within 2 years after the self-evaluation was completed, if the employer can show that it has developed and begun implementing in good faith a plan to address any gender-based wage differentials that it revealed."


The Attorney General's guidance provides comprehensive details with respect to numerous contours of the law (including specific checklists and self-evaluation tools in the appendices).   Accordingly, as July 2018 approaches, it is essential for employers to work with counsel to review and revise handbooks and other policies, to consider best practices for training managers or other individuals performing interviews, and to discuss how and whether to begin a self-evaluation, pay equity study or remediation plan.

Massachusetts Attorney General Issues Guidance On Updated Pay Equity Law

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
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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