112 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP The guidance explains that a “system” (as in “seniority system” and “merit system”) must be “predetermined or predefined; used by managers or others to make compensation decisions; and uniformly applied in good faith without regard to gender.”659 An employee’s previous wage or salary history is not a defense to a claim of wage discrimination, and unlike federal law, the new Massachusetts statute has no catchall defense for wage differentials based “any factor other than sex.”660 The guidance from the Office of the Attorney General takes the position that changes in the labor market are not a valid justification for variations in pay under MEPA.661 The amended law also prohibits employers from reducing the wages of any employee in order to eliminate wage differentials.662 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.663 Employers should not 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 former 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.664 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.665 The guidance from the Office of the Attorney 659 “An Act to Establish Pay Equity: Overview and Frequently Asked Questions,” available at Equal Pay Act Guidance: Overview and FAQ, https://www.mass.gov/massachusetts-equal-pay-law (visited Mar. 5, 2025). 660 29 U.S.C. § 206(d)(1); M.G.L. ch. 149, § 105A. 661 “An Act to Establish Pay Equity: Overview and Frequently Asked Questions,” available at Equal Pay Act Guidance: Overview and FAQ, https://www.mass.gov/massachusetts-equal-pay-law (visited Mar. 5, 2025). 662 M.G.L. ch. 149, § 105A. 663 Id. 664 “An Act to Establish Pay Equity: Overview and Frequently Asked Questions,” available at Equal Pay Act Guidance: Overview and FAQ, https://www.mass.gov/massachusetts-equal-pay-law (visited Mar. 5, 2025). 665 M.G.L. ch. 149, § 105A. Other laws have been interpreted to provide the same prohibition. The National Labor Relations Board (NLRB) has ruled repeatedly that the National Labor Relations Act (NLRA) protects employees’ rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” including the right to discuss wages. See, e.g., Waco, Inc., 273 NLRB 746, 747-48 (1984) (“There can be little question that the [employer’s] rule prohibiting employees from discussing their wages constitutes a clear restraint on employees’ Section 7 right to engage in concerted activities for mutual aid and protection 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 parties regarding terms and conditions of employment).
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