Massachusetts Attorney General Releases Guidance for Employers on New Pay Equity Law

by Epstein Becker & Green

Epstein Becker & Green

The Office of the Massachusetts Attorney General (“AG”) recently issued an Overview and Frequently Asked Questions document (“Guidance”) for the Massachusetts Pay Equity Law (“Law”), which will go into effect on July 1, 2018.

The highly anticipated Law, which was the first salary history inquiry ban passed into law in the United States,[1] amends the Massachusetts Equal Pay Act (“MEPA”). The Law clarifies the MEPA by defining “comparable work,” providing a safe harbor for employers that conduct self-evaluations of pay practices, and offers additional protection to employees by prohibiting employers from asking applicants about their salary history.

The Guidance is intended to help employers navigate the Law by providing greater detail on its provisions and various examples in advance of the Law becoming effective. Additionally, the AG’s website will include a dedicated webpage that supplies (i) an overview of the MEPA, (ii) a pay calculation tool to help employers identify and calculate potential wage gaps between male and female employees, and (iii) access to webinars and events that give employers an opportunity to ask questions about the Law.

Topics Covered in the Guidance

The following topics are addressed by the Guidance (each of these topics will be discussed in greater detail below):

  • Which employers and employees are covered under the MEPA
  • The definition of “comparable work” and other key terms
  • The definition of “wages”
  • Permissible variations in pay under the Law
  • How the Law restricts discussions of wages
  • A prohibition on seeking salary history
  • Liability for an employer that violates the MEPA
  • An affirmative defense available to employers that conduct self-evaluations

Employers and Employees Covered Under the MEPA

The Guidance confirms that nearly all Massachusetts employers, irrespective of size (including state and municipal employers), are covered under the Law, with a limited exception applying to the federal government. The Law also requires that multistate employers ensure that the employees within the same geographic area within Massachusetts are paid equally for performing comparable work. In addition, if the only employees performing work comparable to the Massachusetts employee are located in a different state, it may be necessary to compare the wages of those employees to make sure that they are paid equally or, if there are disparities, that those disparities are justified under the Law.

As for employees, the MEPA applies to full-time, part-time, seasonal, per-diem, and temporary employees. A limited exception exists for babysitters and other domestic workers, workers under age 18, agricultural workers, and employees of social clubs and similar associations. Additionally, the Law will apply to employees with a primary place of work in Massachusetts, regardless of where the employee lives. For most employees, the primary place of work will be determined by the location where they perform the majority of work for their employer.[2] This includes employees who travel outside Massachusetts but return regularly between trips, employees who frequently switch locations of work but “spent the plurality of [their] working time” in Massachusetts over the previous year, and employees who telecommute to a Massachusetts worksite.

Definition of “Comparable Work” and Other Key Terms

Under the Law, “comparable work” is defined as work that requires substantially similar skill, effort, and responsibility and is performed under similar working conditions. The Guidance defines “substantially similar” as being “alike to a great or significant extent, but are not necessarily identical or alike in all respects.”

The Guidance also defines several other terms and provides a number of examples for assessing comparable work:

  • “Skill” includes such factors as experience, training, education, and ability required to perform the jobs, but it must be measured according to the requirements of the job, not the skills that an employee happens to possess.
  • “Effort” refers to the amount of physical or mental exertion needed to perform a job and should take into account job factors that cause or alleviate mental fatigue and stress.
  • “Responsibility” considers the degree of discretion or accountability, as well as duties regularly required in performing the essential functions of the job. This can include the amount of supervision the employee receives, whether the employee supervises others, and the extent to which the employee is involved in decision-making activities.
  • The term “working conditions” is defined as environmental circumstances considered in determining salary or wages. This may include factors such as the physical surroundings and hazards that employees encounter on the job.

In addition, the Guidance warns employers not to rely on job titles or descriptions alone when determining which positions are comparable.

Definition of “Wages”

“Wages” are defined broadly in the Guidance and include all forms of remuneration for work performed, such as incentive pay,[3] as well as benefits that an employee may choose not to participate in. [4] The important aspect here is that employees performing comparable work are given the same opportunity to participate in incentive pay and benefits, and any distinctions in incentive pay and benefits should not be determined by gender. Further, employers are not permitted to pay an employee an extra bonus in order to make up for a base salary that is lower on the basis of gender, when the two employees perform comparable work.

Variations in Pay Permitted Under the Law

The Guidance confirms that, under the Law, one or more of the following six factors may justify a pay difference between employees performing comparable work:

  • a seniority system that is not obstructed by leaves of absence for pregnancy-related conditions or protected parental, family, and medical leaves;
  • a merit system;
  • a system that measures earnings by quantity or quality of production, sales, or revenue;
  • the geographic location where a job is performed;
  • education, training, or experience to the extent that such factors are reasonably related to the particular job in question; or
  • travel, if it is a regular and necessary condition of the job.

An employer may pay employees performing comparable work differently based on the number of hours worked but may not discriminate based on gender in terms of the assignment or availability of part-time versus full-time work. The Guidance cautions employers that intent is irrelevant under the MEPA. Therefore, unless one or more of the six factors above apply, an employer may face liability for the differential in pay on the basis of gender.

Restrictions on Discussion of Wages

Under the MEPA, employers may not prohibit employees from discussing their own wages or their coworkers’ wages, or from disclosing wage information to any person or entity. However, an employer may prohibit human resources employees or supervisors who have access to other employees’ compensation information as part of their job responsibilities from discussing other employees’ wages. Employers are also prohibited from contracting with employees to prevent them from discussing or disclosing wages. The Guidance further confirms that the MEPA does not impose any affirmative obligation on employers to disclose information about their employees’ wages.

Salary History Inquiry Ban

Under the Law, employers generally may not seek salary or wage history directly from a prospective employee or from his or her current or former employer. The Guidance notes that there are only two limited situations in which an employer may ask for this information:

  • to confirm wage or salary history information that is voluntarily shared by the prospective employee, or
  • after an offer of employment with compensation has been made to the prospective employee.

The Guidance provides that employers are permitted to ask a prospective employee about his or her compensation needs or expectations but should do so with caution so that their question is not framed in a way that attempts to “seek” information from the prospective employee about his or her salary or wage history. Also, the Guidance confirms that an employer may ask a prospective employee about his or her previous sales history or objectives but may not seek information about the individual's earnings through sales.

The prohibition on seeking a prospective employee’s salary history does not apply to current employees applying for an internal promotion or transfer. However, the Guidance specifies that at no time may an employee’s salary history, with any employer, justify paying that employee less than an employee of a different gender who performs comparable work.

Liability for MEPA Violations

The potential damages for an equal pay claim under the MEPA include:

  • the amount that the affected employee was underpaid,
  • an equal amount of unpaid wages (i.e., double damages), and
  • the affected employee’s reasonable attorneys’ fees and other costs if awarded a favorable judgment.

Additionally, an employer that violates the anti-retaliation provision or one of the other provisions of the MEPA could be required to pay damages incurred by the affected employee or applicant.

Affirmative Defense for Employer Self-Evaluations

The Guidance explains that, under the MEPA, an employer may have a “complete defense” to a legal claim if it has conducted a good faith, reasonable self-evaluation of its pay practices within the previous three years and before an employee files the action. To be eligible, the self-evaluation must be reasonable in detail and scope, as well as show reasonable progress towards eliminating any unlawful gender-based wage disparities that the self-evaluation reveals. The employer bears the burden of proving that it met these standards.

In addition, the Guidance provides that an employer’s eligibility for the affirmative defense is more likely to turn on whether the self-evaluation was reasonable in detail and scope and conducted in good faith, rather than whether the court agrees with the employer’s comparable work analysis. According to the Guidance, a “good faith” self-evaluation is one that an employer does “in a genuine attempt to identify any unlawful pay disparities among employees performing comparable work.”

A self-evaluation is considered “reasonable in detail and scope” depending on the “size and complexity of an employer’s workforce.” Relevant factors to consider will include “whether the evaluation includes a reasonable number of jobs and employees” and engages in a “reasonably sophisticated” analysis. To show that it has made “reasonable progress,” an employer must “take meaningful steps toward” correcting the identified disparities in a reasonable amount of time.

In addition to an overview of the Law and frequently asked questions, the Guidance has an appendix section that includes “Self-Evaluations—A Basic Guide for Employers” and a “Sample Checklist—Policies & Practices Review” that employers may find helpful.

What Massachusetts Employers Should Do Now

The Law goes into effect on July 1, 2018. In the meantime, Massachusetts employers should do the following:

  • Thoroughly review the Guidance and the AG’s online resources, including the sample checklist and pay calculator.
  • Advise third parties engaged in recruiting on your behalf, such as recruiters and headhunters, of the requirements of the Law, and ensure that they will comply with it when performing recruiting activities on your behalf.
  • When reviewing and/or revising your current policies and procedures, take into consideration such issues as next steps needed to implement a method of self-evaluation appropriate to your business, best practices in terms of privilege, and how to address the possibility of remediation.
  • Review and, if necessary, revise and disseminate existing policies on wage transparency or confidentiality to ensure compliance with the Law.
  • Provide training to management, human resources staff, recruiters, and compensation partners on the requirements of the Law.


[1] Subsequently, several other salary history inquiry bans have been signed into law, and some have already become effective.

[2] The Guidance advises that it is not necessary for an employee to spend 50 percent of his or her working time in Massachusetts in order for it to be considered their primary place of work. Additionally, when an employee permanently relocates to Massachusetts, it will be the primary place of work upon the first day of actual work in Massachusetts.

[3] Incentive pay includes commissions, bonuses, profit-sharing, and other production incentives.

[4] Benefits include health or life insurance, retirement plans, tuition reimbursement, and other similar benefits that employees may choose not to take advantage of (e.g., because they are covered by a spouse’s plan).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.