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In this episode of the Proskauer Brief, senior counsel Harris Mufson is joined by associates Rebecca Sivitz and Maryssa Mataras to discuss the recently enacted Pay Equity Laws in Massachusetts and New Jersey. So be sure to tune in for the latest insight on this very important issue.

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Harris Mufson:  Hello. Welcome to the Proskauer Brief, Hot Topics on Labor and Employment Law. I’m Harris Mufson, and on today’s episode I’m joined by Rebecca Sivitz and Maryssa Mataras and we’re going to discuss recent equal pay laws that were enacted in Massachusetts and New Jersey.

So Rebecca, let’s start with the Equal Pay law that was recently enacted in Massachusetts. Can you describe what that law provides?

Rebecca Sivitz:  Earlier this year, Massachusetts passed the Massachusetts Equal Pay Act, or MEPA, which went into effect a few weeks ago on July 1st. In doing so, it joined several other states and cities who have passed similar statutes in an attempt to rectify gender pay issues.

The law has two main components. First, it prohibits employers from asking candidates about their salary history at any point in the interview process, and second, it requires that employees who perform equal or comparable work be paid the same unless the pay differential falls within one of six specific exceptions. These exceptions include key differences based on seniority, the geographic location in which the employee works and differences in employees’ merit based on an established merit system.

Harris Mufson:  Okay. And how is this law different than other pay equity laws around the country?

Rebecca Sivitz: There are a couple of things that make this law different. The first is in the scope of what it covers. This law covers nearly all Massachusetts employers and the vast majority of employees, including full-time, part-time, seasonal and temporary employees.

Further, it really talks about who has a primary place of work in Massachusetts in a very broad fashion. So it covers employees who travel primarily but have some sort of return to Massachusetts with regularity, employees who spend the plurality of their time in Massachusetts, as well as employees who may be based out of state but telecommute to Massachusetts.

Harris Mufson:  And so what should employers do now to ensure that they are complying with the equity pay law in Massachusetts?

Rebecca Sivitz:  On the salary history front, employers should make sure that they stop asking candidates about their salary history at any point in the interview process, including after an offer has been extended, but the salary is being negotiated.

Employers should also consider issuing policies so that all of the interviewers within their company are on the same page, which can include training their employees as well, because this really is changing the traditional dialogue that surrounds salary negotiations, so it can be helpful to make sure that everyone knows what they can and cannot ask, as well as what to do if a candidate, for example, reveals their salary without being prompted.

On the pay equity front, the Massachusetts Equal Pay Act provides an affirmative defense to employers who participate in a good faith self-evaluation of their pay practices. So that’s something that employers want to consider doing things if they’d like to avail themselves of that defense. It’s also a good thing to be doing anyway.

Harris Mufson:  So Maryssa, in addition to the Massachusetts Equal Pay Act, New Jersey also enacted its own Equal Pay law recently, and that law went into effect on July 1st, 2018, actually the same date as MEPA. New Jersey’s act makes it an unfair employment practice under New Jersey’s law against discrimination for an employer to pay a member of any protected class differently than another member of a different protected class for performance of substantially similar work. And, that begs the question of what is substantially similar work under the statute? Does the statute provide any guidance in that regard?

Maryssa Mataras:  As of now the answer to that question is no. There is no guidance on that buzz term there: substantially similar work. We’re not sure whether the attorney general office or the Governor himself will be issuing regulations or guidance on the definition of that term. And as of now, it is up to the courts to define that.

Harris Mufson:  So Maryssa, one interesting aspect of the New Jersey Equal Pay law is that it prohibits discrimination in terms of compensation against any member of any protected class and, as opposed to just gender-based discrimination. Can you discuss what that means in terms of who is protected under this law?

Maryssa Mataras: Yes, that’s exactly right, Harris. So while the act was enacted to address pay disparity among genders, it also addresses pay equity among all the protected classes under the New Jersey law against discrimination, which includes traits such as sex, race, creed, color, national origin, ancestry and a host of other characteristics, including the most recently added trait, which is breastfeeding, under the New Jersey law against discrimination.

Harris Mufson:  So I guess it’s fair to say that this law is extremely broad.

Maryssa Mataras: That’s very accurate.

Harris Mufson:  So I want to thank Rebecca Sivitz and Maryssa Mataras for joining me today, and thank you for listening to the Proskauer Brief. Stay tuned for more insights on the latest hot topics in labor and employment law, and be sure to follow us on iTunes.

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