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

124 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP that compensation must be paid in the same method. An employer may not pay “an employee an extra annual bonus in order to make up for the fact that he or she has a lower base salary.” 702 B. Permitted Justifications for Wage Differentials Under the amended MEPA, an employer can avoid liability for a wage differential between employees of opposite genders only if it can establish that the difference is based on one of the following factors: • A system that rewards seniority; provided, however, that time spent on leave due to a pregnancy-related condition and protected parental, family, and medical leave shall not reduce seniority • A merit system • A system that measures earnings by quantity or quality of production, sales, or revenue • Geographic location in which a job is performed • Education, training, or experience to the extent such factors are reasonably related to the particular job in question • Travel, if the travel is a regular and necessary condition of the particular jo b 703 The guidance explains that a “system” (as in “seniority system” and “merit system”) must be “predetermined or predefined; used by managers or others to make compensation decisions; and uniformly applied in good faith without regard to gender.” 704 An employee’s previous wage or salary history is not a defense to a claim of wage discrimination, and unlike federal law, the new Massachusetts statute has no catchall defense for wage differentials based “any factor other than sex.” 705 The guidance from the Office of the Attorney General takes the position that changes in the labor market are not a valid justification for variations in pay under MEPA. 706 The amended law also prohibits employers from reducing the wages of any employee in order to eliminate wage differentials. 707 702 “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). 703 M.G.L. ch. 149, § 105A. 704 “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). 705 29 U.S.C. § 206(d)(1); M.G.L. ch. 149, § 105A. 706 “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). 707 M.G.L. ch. 149, § 105A.