Gender Gap and Equal Pay Act FAQs
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It is easy to say that the law requires equal pay for equal work. But if you are in a situation where you think you may be receiving unequal compensation, it can be hard to figure out how to gather that information, what to do about it, and who can help you. Below are some questions we have frequently heard about pay discrimination in the workplace.
Frequently Asked Questions About Equal Pay LawsHow can I tell if my employer pays employees differently based on sex? You may have to talk to other employees to find out if men doing substantially similar work are paid more than you. New Massachusetts law makes it unlawful for your employer to stop you from sharing salary information with co-workers.
Can a prospective employer ask me about my salary history? Under the new Massachusetts Equal Pay Act, these questions are not allowed until after an offer of employment with the compensation specified has been made. Can I tell a prospective employer about my salary history if I want to? Yes, if you feel it is to your advantage to disclose your prior earnings, you are free to do so. Do fringe benefits count in determining whether men and women have equal pay? Yes. The courts have held that the comparison of compensation must also be informed by the value of the benefits offered to different employees in comparable positions. What is equal or comparable work? Equal or comparable work is work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. The work does not need to be identical to be equal or comparable for purposes of determining pay equity. What is a legitimate reason for differences in pay? There are several listed in the equal pay statutes. One is a seniority system, though under Massachusetts law that seniority system cannot penalize you for pregnancy or family leaves. Another is a merit system, which could be based on performance reviews or other metrics. A third is a system measuring earnings by quantity or quality of production. Finally, under federal law, there is a catch-all exception for differences based on "any factor other than sex." What if I question the reason for differences in pay? If you see a difference in pay, and question whether the claimed basis for difference masks gender discrimination, you should consult an attorney. There are times when a "merit system" masks sex discrimination. There are also times when even objective metrics like production are influenced by different opportunities given to male and female employees. Do I have to prove that my employer intended to discriminate in pay? No. The Equal Pay Act is what is known as a "strict liability" law, which means that if there are differences in pay between men and women, and those differences are not justified by one of the reasons the law considers legitimate, the employer is liable even though there is no proof the differences were motivated by discrimination. Can I be disciplined for discussing salary with co-workers? No. The Massachusetts Equal Pay Act prohibits employers from requiring silence among employees about compensation, precisely to make sure that people have the information they need to identify unlawful discrepancies in pay. If I am paid less than a male colleague based on seniority, but I am only less senior because of my maternity leaves, is that legal? No. The Massachusetts Equal Pay Act specifies that time away from work for maternity or any other family medical leave cannot count against you in a seniority system. So if you are lagging behind in pay because of a maternity leave, or because you took time off to care for a seriously ill child, that should not be a justification for lower compensation. My employer recently conducted an audit of pay practices but has made no changes since the audit. Are they still protected from liability? If the company did an audit and reached a good faith conclusion that there were no violations, they are protected. However, if they did an audit and turned a blind eye to discrepancies that were or should have been turned up in the audit, you may argue that they did not in fact make a "good faith determination" and should not be entitled to this protection. If they did find unlawful discrepancies and took no action to correct them, they can also lose their protection. I went to my boss about a pay difference between me and a male co-worker and got fired. Is that legal? No, it is not. Like many other employment laws that are meant to protect employees, the equal pay laws also prohibit retaliation against an employee for seeking to enforce her rights under the law. You should consult with an attorney as soon as possible to find out what your remedies are. If I file an equal pay lawsuit and win, can I recover my attorneys' fees? Yes. If you prevail on a claim under the equal pay laws, your employer will have to pay whatever damages are awarded by the judge or jury and also your reasonable costs and attorneys' fees incurred in bringing the lawsuit. Read more about what to expect as a plaintiff in a civil lawsuit. |
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Meet Our Employment Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year. She has written a book on employment law: Rules of the Road, What You Need to Know About Employment Laws in Massachusetts, and helped thousands of clients on both the employee and employer side with severance and non compete review and negotiation, wage and hour, discrimination and retaliation disputes, workplace sexual harassment situations, and advice about employment law generally.
Rebecca Rogers: Rebecca is a 2006 graduate of Boston College Law School, and has worked with slnlaw since 2013. She previously worked as an intellectual property litigation attorney for Fish & Richardson in Boston, Massachusetts, and clerked for the Massachusetts Supreme Judicial Court. Rebecca has helped clients with wage and hour disputes, employment discrimination, harassment and retaliation claims, review and negotiation of severance and non compete agreements, and advice to both employees and employers about navigating complex employment situations.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna has helped clients with review and negotiation of severance and non compete agreements, wage and hour disputes, discrimination, harassment and retaliation claims, and advice to small business owners about employment law and other business matters.
Elijah Bresley: Eli is a 2014 graduate of Seton Hall Law school, and has worked with slnlaw since 2020. He previously worked for a boutique employment law firm outside of Boston, and then for the Labor and Employment department of a large Boston firm. He also spent a year clerking for the judges of the Superior Court in Hartford, Connecticut. Eli has helped clients on the employee and employer side with all varieties of employment law issues, including employment discrimination, harassment, retaliation, and wage and hour issues, litigation in MCAD and state and federal courts, and advising employers about employment policies and practices.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped clients with wage and hour, discrimination, harassment and retaliation disputes, review and negotiation of severance agreements, and litigation in MCAD and state and federal courts on employment related issues.
How We Can Help
We can help you navigate these issues and get clarity on your rights and obligations, and to help with your self evaluation if you are an employer who would like to avoid future liability under the Massachusetts Equal Pay Act. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
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