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. | 125 C. Prohibition on Salary History Requests The law prohibits Massachusetts employers from requesting the compensation history of a prospective employee prior to making an offer, unless the prospective employee has “voluntarily” disclosed such information. 708 Employers should no longer request prior compensation information on job applications or elsewhere. The ban does not apply to internal employees. However, because an employee’s compensation history is never a defense to a wage discrimination claim, employers should not make any decision about the compensation of an employee transferred to a new position based on the person’s current compensation. The guidance from the Office of the Attorney General takes the position that asking about salary “expectations” is permitted, provided that employers do not frame the question in a manner designed to elicit information about a candidate’s wage history. 709 D. Prohibition on Pay Secrecy Requirements MEPA, as amended, makes it unlawful for employers to prohibit employees from discussing or disclosing their own or other employees’ wages. 710 The guidance from the Office of the Attorney General contends that the prohibition extends to communications between employees and third parties. 711 However, the guidance also provides that “[a]n employer may . . . prohibit human resources employees, supervisors, or other employees whose job responsibilities give them access to other employees’ wages from discussing such other employees’ wages.” 712 E. Self-Evaluation Defense MEPA, as amended, provides a unique affirmative defense to liability for wage discrimination for an employer that has (1) completed a good faith self-evaluation of its pay practices that is “reasonable in detail and scope in light of the size of the employer” within the three years prior to commencement of the action; and (2) made “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. 713 This is a complete defense to claims under MEPA, 708 Id . 709 “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). 710 M.G.L. ch. 149, § 105A. Other laws have been interpreted to provide the same prohibit ion. The Nat ional Labor Relat ions Board (NLRB) has ruled repeatedly that the Nat ional Labor Relat ions Act (NLRA) protect s employees’ right s to engage in “concerted act ivit ies for the purpose of collect ive bargaining or other mutual aid or protect ion,” including the right to discuss wages. See, e.g., Waco, Inc. , 273 NLRB 746, 747-48 (1984) (“There can be lit t le quest ion that the [employer’s] rule prohibit ing employees from discussing their wages const itutes a clear rest raint on employees’ Sect ion 7 right to engage in concerted act ivit ies for mutual aid and protect ion concerning an undeniably significant term of employment .”); Kinder-Care Learning Centers, Inc. , 299 NLRB 1171, 1171 (1990) (explaining that employees have a statutory right to communicate with each other and third part ies regarding terms and condit ions of employment ). 711 “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). 712 Id. 713 M.G.L. ch. 149, § 105A.