114 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP eligible for the affirmative defense, employers are not required to pay employees retroactively to compensate for historic disparities. Evidence of an employer’s self-evaluation or remedial steps undertaken in accordance with the new law is not admissible as evidence of any violation of Massachusetts law in some circumstances.674 Employers are not required to conduct a self-evaluation, and they should make an informed decision about whether to do so. MEPA encourages employers to conduct self-evaluations by offering the benefit of the affirmative defense in the event of litigation. In addition, a selfevaluation or audit can be a valuable exercise to identify and alleviate risks. However, an evaluation might be used against an employer in litigation under federal law or the laws of other states that do not provide a similar defense as under MEPA. Employers should consider conducting a self-evaluation under the guise of the attorney-client privilege or the work product doctrine. Even then, if an employer decides to waive the privilege in connection with a lawsuit under MEPA, the evaluation could then be used against it in any subsequent action, such as under the federal Equal Pay Act. F. Damages Employers who violate MEPA are liable for unpaid wages, an equal amount as liquidated damages, and attorneys’ fees. The amendment to MEPA extends the statute of limitations from the prior one-year period to three years after the date of the alleged violation. A pay violation occurs each time an employee is paid.675 The damages or penalties for a prohibited salary history request are unclear. The guidance from the Attorney General’s Office does not address this uncertainty. VIII. SUNDAYS, HOLIDAYS AND DAYS OF REST A. Work on Sundays and Holidays The laws in Massachusetts governing work on Sunday and holidays, commonly referred to as the “Blue Laws,” are set forth in a complex statutory framework that can be difficult to interpret and that causes much confusion among employers. Although initially very restrictive, the Blue Laws now include many exceptions to the prohibition on Sunday work. 674 M.G.L. ch. 149, § 105A. 675 Id.
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