Part VI: What Employers Can Do To Prepare

On July 1, 2018, An Act to Establish Pay Equity (the “Act”) goes into effect in
Massachusetts.  The Act prohibits discrimination in payment of wages on the
basis of gender.  Below is the final article in our series concerning the Act,
which provides a list of “Action Items” that employers can use to prepare for the future.
 
Update Your Employee Manuals/Handbooks:  Many employers continue to issue employee handbooks/manuals to employees which include language barring employees from discussing wages or salary issues with other employees.  Under the Act, employers cannot generally prohibit such discussions among employees.
Change/Update Employment Applications:  The Act prohibits employers from “seeking” prior salary history information from employees during the application process.  Many employers, however, use standard form job applications which requests prior salary history from applicants.  Job applications should be modified to remove those types of questions.
Meet with Managers/Human Resources:  Human resources employees and management-level employees (or others involved in the hiring process) should be made aware of the Act’s prohibition on seeking salary information from applicants.  Even if you have modified applications and employee handbooks, it could still be a violation of the Act if a manager or other employee seeks prior salary history during the interview process.
Check Your Seniority/Reward System:  If your company uses a system to reward employees for length of service/seniority, you should make sure the system does not improperly penalize employees who take allowable leave.  Under the Act, an employer’s seniority system cannot reduce seniority credit for employee time spent on leave due to a pregnancy-related condition and for time away from work for protected parental, family and medical leave.
Perform a Reasonable, Good-Faith, Self-Evaluation of Pay Practices:  See the link here: https://www.mass.gov/files/documents/2018/03/01/AGO%20Equal%20Pay%20Act%20Guidance.pdf.  If you have not done so, you should do so right away.  Completing the self-evaluation will take time and planning and could very well require input from employees and managers across your organization.  Also, you should document the process you use and keep it handy because you will (ideally) perform a self-evaluation every three years so you can always use it as a defense to allegations that your company has violated the Act.
Work to Eliminate Improper Pay Disparities:  If your Self-Evaluation uncovers pay disparities, create a plan to address them and take concrete measures to eliminate the pay disparity.  Remember, however, that you cannot correct a pay disparity by reducing another employee’s wages in order to comply with the Act.
Create Written Job Titles and Position Descriptions:  These will be helpful for employers to use in the future when determining whether two employees are engaged in “comparable work”.
If you would like assistance in preparing your company for these changes, or if you have questions about any other employment law issues, please contact Attorney Michael P. Doherty, Andrew M. Kepple or one of our other employment attorneys at 508 541-3000.