© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 113 General contends that the prohibition extends to communications between employees and third parties.666 However, the guidance also provides that “[a]n employer may . . . prohibit human resources employees, supervisors, or other employees whose job responsibilities give them access to other employees’ wages from discussing such other employees’ wages.”667 E. Self-Evaluation Defense MEPA, as amended, provides a unique affirmative defense to liability for wage discrimination for an employer that has (1) completed a good faith self-evaluation of its pay practices that is “reasonable in detail and scope in light of the size of the employer” within the three years prior to commencement of the action; and (2) made “reasonable progress” toward eliminating pay differentials uncovered by the evaluation.668 This is a complete defense to claims under MEPA, as well as pay-related discrimination claims under Chapter 151B, the state anti-discrimination law.669 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.670 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.”671 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.”672 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.”673 To be 666 “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). 667 Id. 668 M.G.L. ch. 149, § 105A. 669 Id. 670 Id. In Woodward v. Bd. of Reg. in Nursing, Civ. No. 2084CV01330 (Mass. Super. July 18, 2024), the court granted summary judgment to the employer where it had completed a self-evaluation within three years of the filing of the complaint, the evidence did not suggest the absence of good faith and the employer proposed to increase salaries for employees identified in the selfevaluation. 671 “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). 672 Id. 673 Id.
RkJQdWJsaXNoZXIy OTkwMTQ4