For those of you with employees in Massachusetts, you need to be aware of two significant changes with respect to pay equity and pregnancy accommodations. These changes also serve as a reminder to employers that they need to stay focused on disseminating and enforcing policies on harassment of all kinds.
On April 1, 2018, the Massachusetts Pregnant Workers Fairness Act goes into effect. This law requires employers to provide accommodations to both pregnant employees and those who have recently given birth. For example, employees are going to be entitled to more frequent or longer unpaid breaks, paid or unpaid time off to recover from childbirth, modification of equipment, assistance with manual work, job restructuring, and/or the opportunity to sit during work time. Employers will also need to allow employees time to express milk in a place that is private and that is not a bathroom. In reviewing any requested changes to the employee’s job, employers should follow the same process they already follow for disability-related accommodation requests–engage in a dialogue with the employee to try to determine what accommodation is possible, and document all steps taken in response. Although the law recognizes that there may be situations where it would be an undue hardship to provide an accommodation, that is often a difficult conclusion to reach. Employers will have to update their policies to reflect the changes, with a written notice to employees setting forth the changes. Even aside from the dissemination of the new policy, employers would be wise to inform pregnant employees of the protections available under the law so as to ensure that employees understand their rights.
The second change coming in 2018 is the Act to Establish Pay Equity, which goes into effect on July 1, 2018. This law makes it unlawful to compensate employees less based on gender when the work is comparable. The term “comparable” is defined as work requiring substantially similar skill, effort, and responsibility, and is performed under similar working conditions. While this concept is not a new one, the law also has an important provision regarding inquiries about prior pay history. For example, the law provides that employers are prohibited from asking an applicant about his/her salary and benefit history before extending a job offer. Employers thus should revise its policies and train its managers on ensuring that the law is followed.
Although the law can be punitive with regard to violations, employers have the opportunity to take steps now to protect against such claims. The protection comes if an employer undertakes a self-evaluation of its pay practices and then takes steps to address, in good faith, any inequities discovered during that evaluation. Employers should consider this self-evaluation, but should also be prepared to show reasonable progress toward addressing any pay inequities. Otherwise, the self-evaluation might just be evidence that could be used against the employer in litigation.