Gender Gap and Equal Pay Act FAQs
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 Laws
How 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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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.