SENATE DOCKET, NO. 1423        FILED ON: 1/16/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 983

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Patricia D. Jehlen

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to establish pay equity.

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PETITION OF:

SENATE DOCKET, NO. 1423        FILED ON: 1/16/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 983

The Commonwealth of Massachusetts

_______________

In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act to establish pay equity.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1:  Chapter 149 of the General Laws is hereby amended by striking out section 105A and inserting in place thereof the following section:-

“Section 105A: (a)No employer shall discriminate on the basis of gender in any way in the payment of wages, benefits or other compensation, or pay any person in its employ wages, benefits or other compensation less than it pays to employees of the opposite gender for work of like or comparable character or work on like or comparable operations; provided, however, that variations in wages, benefits or other compensation shall not be prohibited when based upon a difference in seniority.  In any action brought under this section, the comparability of two positions shall be solely based on whether the two positions entail comparable skill, effort, responsibility and working conditions between employees of the opposite gender.  An employer who is paying a wage differential in violation of Section 105A shall not, in order to comply with the provisions of Section 105A, reduce the pay of any employee.  Nothing in this section shall be construed to affect any bargaining agreement or company policy which provides for greater or additional wages, benefits or other compensation than those required under this section.

(b) It shall be an unlawful practice for an employer to:

(1) Require, as a condition of employment, that an employee refrain from disclosing, discussing, or sharing information about the amount of his or her wages, benefits or other compensation, or from inquiring, discussing or sharing information about any other employee’s wages, benefits or other compensation.

(2) Require an employee to sign a waiver or other document that denies the employee the right to disclose the amount of his or her wages, benefits or other compensation or to inquire about, discuss or share information about any other employee’s wages, benefits or other compensation.

(3) Discharge, formally discipline, or otherwise discriminate against an employee because the employee:

(i) has opposed any act or practice that is prohibited under this chapter or asserted a right that is protected under this chapter;

(ii) has lodged a complaint or has testified, assisted, or participated in any manner in an informal or formal investigation of prohibited acts or practices;

(iii) is known by the employer to be about to lodge a complaint, testify, assist, or participate in any manner in an informal or formal investigation of prohibited acts or practices;

(iv) has disclosed his or her wages, benefits or other compensation or has inquired about or discussed the wages, benefits or other compensation of any other employee; or

(v) is believed by the employer to have acted as described in subdivisions (i) through (iv) of this subparagraph.

Unless otherwise required by law, an employer may prohibit a human resources employee from disclosing the wages of any employee to another employee.  Employers may not disclose the salary of any individual employee unless required by law or with the written permission of the employee whose salary is to be disclosed.  

(c) Employers must post a notice in their workplace in a space where employees congregate and can clearly see it, in a font of no less than 24.  Such a notice will state:

In Massachusetts, it shall be an unlawful practice for an employer to:

(1) Require, as a condition of employment, that an employee refrain from disclosing, discussing, or sharing information about the amount of his or her wages, benefits or other compensation, or from inquiring, discussing or sharing information about any other employee’s wages, benefits or other compensation.

(2) Require an employee to sign a waiver or other document that denies the employee the right to disclose the amount of his or her wages, benefits or other compensation or to inquire about, discuss or share information about any other employee’s wages, benefits or other compensation.

(3) Discharge, formally discipline, or otherwise discriminate against an employee because the employee:

(i) has opposed any act or practice that is prohibited under this chapter or asserted a right that is protected under this chapter;

(ii) has lodged a complaint or has testified, assisted, or participated in any manner in an informal or formal investigation of prohibited acts or practices;

(iii) is known by the employer to be about to lodge a complaint, testify, assist, or participate in any manner in an informal or formal investigation of prohibited acts or practices;

(iv) has disclosed his or her wages, benefits or other compensation or has inquired about or discussed the wages, benefits or other compensation of any other employee; or

(v) is believed by the employer to have acted as described in subdivisions (i) through (iv) of this subparagraph.

(d) Any employer who violates any provision of this section shall be liable to the employee or employees affected in the amount of their unpaid wages, benefits or other compensation, and in an additional equal amount of liquidated damages. An action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and on behalf of such employee or employees and other employees similarly situated.  Any agreement between the employer and any such employee to work for less than the wages, benefits or other compensation to which such employee is entitled under this section shall be no defense to such action. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and the costs of the action.  Attorneys’ fees can be awarded under this subparagraph in the absence of compensatory damages.  At the request of any employee paid less than the wages, benefits or other compensation to which the employee is entitled under this section, the attorney general may take an assignment of such wage claim in trust for the assigning employee and may bring legal action necessary to collect such claim, and the employer shall be required to pay an additional equal amount of liquidated damages, together with the costs of the action and such reasonable attorney’s fee as may be allowed by the court. The attorney general shall not be required to pay any filing fee, or other costs, in connection with such action. The attorney general may join various claimants against the employer in one cause of action.  Any action based upon or arising under sections 105A to 105C, inclusive, shall be instituted within 3 years after the date of the alleged violation.

(e) (1) An employer, charged under this section with unlawful discrimination by an employee who holds a job predominantly occupied by members of one gender (as defined below), who has completed a self-evaluation that meets the standards set forth in subsection (5), and who can also make an affirmative showing that progress has been made towards removing or preventing wage differentials based on gender, in accordance with that evaluation, including implementing any required remediation plan, shall be entitled to a rebuttable presumption that the employer has not engaged in gender discrimination in violation of this section.

(2) In such cases, the court must give the aggrieved party an opportunity to rebut this presumption through evidence that reasonably demonstrates that, notwithstanding the employer’s self-evaluation, the employer has violated this Section.  In meeting the burden of overcoming this presumption the aggrieved party may provide all relevant information including, but not limited to, evidence that:

(i) the employer’s job analysis devalues attributes associated with jobs occupied predominantly by members of one gender and/or over values attributes associated with jobs occupied predominantly by members of the other gender;

(ii) notwithstanding non-discriminatory basic pay rates, periodic raises, bonuses, incentive payments, or other forms of remuneration differ between jobs occupied predominantly by members of one gender;

(iii)  the job the aggrieved party occupies was not adequately evaluated; or

(iv) a job evaluation process has been completed and, if necessary, a remediation process is in progress or has been completed, but the self-evaluation has not been reviewed and updated at reasonable intervals to adjust for changes in the work environment over time. 

(3) An employer wishing to avail itself of this presumption must produce documentation describing the self-evaluation process in the detail necessary to show that it has met the standards under subsection (5). 

(4) A job occupied predominantly by members of one gender means that at least 75 percent of the occupants of the job are of the same gender.

(5) In order to be eligible for the presumption of compliance, the self-evaluation must:

(i) clearly define the employer’s establishment (meaning industrial or commercial facility or place of business);

(ii) analyze the employee population to identify possible areas of pay discrimination;

(iii) establish a job evaluation plan as a means of determining the value of jobs within the establishment.  The plan must:

a. be free of any gender bias;

b. allow for the comparison of all jobs; and

c. fully and accurately measure the skill, effort, responsibility, and working conditions of each job based on the actual work performance requirements of the jobs evaluated;

(iv) apply the job evaluation plan to all or a significant sample of jobs, focusing on those that are predominantly occupied by one gender;

(v) create a salary structure or have an identifying salary group system where jobs of equal value are placed in the same level or grouping;

(vi) determine for each salary grouping or for each total job evaluation score the base pay differential between jobs that are predominantly occupied by one gender to other jobs, including those predominantly occupied by the other gender, in order to identify any wage rate discrimination; and

(vii) remedy any base pay differential identified in subsection (vi).  In order to meet this standard, such remediation may not reduce the pay of any employee or class of employees. 

The presumption of compliance may be strengthened where, throughout the self-evaluation, including any needed remediation, the employer maintains communication with and keeps employees apprised of the process.  The method and procedure for that communication may vary according to the size and organizational structure of the establishment.  However, any method or procedure chosen should be adequate to reach all employees at the establishment.

(f) The Attorney General may issue regulations to interpret and apply the provisions of section 105A.”

SECTION 2:  Section 4 of Chapter 151B of the General Laws is hereby amended by inserting after subsection 19, the following subsections:-

“(20) For an employer, personally or through an agent, to publish, list, or post, publicly or within the organization; or publish, list, or post with any employment agency, job-listing service, or website an advertisement to recruit candidates for hire or independent contractors to fill a position within the organization without including the minimum rate of pay whether paid by the hour, shift, day, week, salary, piece, commission, or other; including overtime; with allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances. In addition, no employer shall pay wages for the position less than what were advertised.

(21)  For an employer to refuse to comply with the provisions of section 105A(b) of chapter 149.  A violation of section 105A(b) of chapter 149 is a violation of this section.

(22) (a) For a current or prospective employer, personally or through an agent, to seek salary history information, including but not limited to compensation and benefits, from the potential employee for an interview or as a condition of employment; or (b) for an employer to release the salary history of any current or former employee to any prospective employer in response to a request as part of an interview or hiring process without written authorization from such current or former employee.”

SECTION 3:  Section 5 of Chapter 151B of the General Laws is hereby amended by inserting at the end thereof the following sentence:-

“Attorneys’ fees can be awarded under this section in the absence of compensatory damages.” 

SECTION 4:  Section 9 of Chapter 151B of the General Laws is hereby amended by inserting after the word “damages”, in line 37, the following sentence:-

“Attorneys’ fees can be awarded under this section in the absence of compensatory damages.”