Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 123 On August 1, 2016, Massachusetts enacted major changes to MEPA. 693 These changes took effect on July 1, 2018, and are enforced by the Office of the Massachusetts Attorney General. Employees also have a private right of action. As amended, MEPA authorizes the Attorney General’s Office to promulgate “regulations interpreting and applying” the statute. However, the Attorney General’s Office chose instead to publish guidance entitled, “An Act to Establish Pay Equity: Overview and Frequently Asked Questions,” along with a checklist, calculator and other tools. 694 The guidance is not binding on courts and does not have the force of law. A. “Comparable Work” MEPA, as amended, prohibits differences in pay for “comparable work”: “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.” 695 “Comparable work” is defined as work that is “substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” 696 The guidance from the Office of the Attorney General emphasizes that “comparable work” is broader than the standard under the federal Equal Pay Act. 697 It defines “substantially similar” as “alike to a great or significant extent, but . . . not necessarily identical or alike in all respects.” 698 According to the guidance, “skill” includes such factors as experience, training, education and required ability; “effort” refers to the amount of physical or mental exertion needed to perform a job; and “responsibility” encompasses the degree of discretion or accountability in performing the job, as well as the duties regularly required. 699 Notably, the Attorney General’s Office takes the position that a determination of comparability cannot be based on job titles or descriptions alone and may require a comparison of employees working in different departments or business units. 700 “Wages” are defined broadly to include “all forms of remuneration for employment.” 701 According to the guidance from the Office of the Attorney General, wages include any type of pay or compensation for work, including profit sharing, deferred compensation, vacation time, car allowances, retirement plans, insurance and the opportunity to participate in benefit programs (regardless of whether or not the employee takes advantage of them). The guidance also asserts 693 M.G.L. ch. 149, § 105A. 694 Se e ht tps://www.mass.gov/massachuset t s-equal-pay-law ( visited July 15, 2021). 695 M.G.L. ch. 149, § 105A(a). 696 Id . 697 “An Act to Establish Pay Equity: Overview and Frequent ly Asked Quest ions,” available at ht tps://www.mass.gov/massachuset t s-equal-pay-law ( visited July 15, 2021). 698 Id. 699 Id. 700 Id. 701 M.G.L. ch. 149, § 105A.