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

126 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP as well as pay-related discrimination claims under Chapter 151B, the state anti-discrimination law. 714 A partial defense is also available under the statute. If an employer’s self-evaluation was done in good faith but found to be insufficient in detail or scope, an employer will be liable to affected employees for unpaid wages but not for liquidated damages. 715 The law does not specify what is required to establish that an audit is “reasonable” or what constitutes “reasonable progress” in remediating any disparities revealed by such audits. The Attorney General’s guidance explains that whether an evaluation is “reasonable in detail and scope” depends on the “size and complexity of an employer’s workforce,” in light of factors including “whether the evaluation includes a reasonable number of jobs and employees” and is “reasonably sophisticated.” 716 However, the guidance explains that an employer’s good-faith determination of which jobs are comparable for purposes of the self-evaluation is not subject to second-guessing by a court. An appendix to the guidance states that “a statistical analysis will be the best way for employers to determine whether there are differences in pay between men and women in comparable jobs after controlling for other factors.” 717 The guidance describes “reasonable progress” as taking “meaningful steps” in a “reasonable amount of time” that will be evaluated based on “how much time has passed, the nature and degree of its progress as compared to the scope of the disparities identified, and the size and resources of the employer.” 718 To be eligible for the affirmative defense, employers are not required to pay employees retroactively to compensate for historic disparities. Evidence of an employer’s self-evaluation or remedial steps undertaken in accordance with the new law is not admissible as evidence of any violation of Massachusetts law in some circumstances. 719 Employers are not required to conduct a self-evaluation, and they should make an informed decision about whether to do so. MEPA encourages employers to conduct self-evaluations by offering the benefit of the affirmative defense in the event of litigation. In addition, a self- evaluation or audit can be a valuable exercise to identify and alleviate risks. However, an evaluation might be used against an employer in litigation under federal law or the laws of other states that do not provide a similar defense as under MEPA. Employers should consider conducting a self-evaluation under the guise of the attorney-client privilege or the work product doctrine. Even then, if an employer decides to waive the privilege in connection with a lawsuit under MEPA, the evaluation could then be used against it in any subsequent action, such as under the federal Equal Pay Act. 714 Id. 715 Id. 716 “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). 717 Id. 718 Id. 719 M.G.L. ch. 149, § 105A.