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January 29, 2016

Mass. Senate approves pay equity act to close wage gap

Noting its history as the first state to pass a pay equity law more than 70 years ago, the Massachusetts Senate unanimously passed legislation Thursday that proponents say will strengthen that law in an attempt to close the gender pay gap.

"The Senate today is taking a huge step not only for women, but also for men who believe in fairness and equity at the workplace for all the citizens of the commonwealth," said Sen. Daniel Wolf, the Senate chair of the Joint Committee on Labor and Workforce Development. "This bill gives us all a tool to use and tools to use to ... do a deep dive, examine our souls, our hearts, our minds, our wallets, our balance sheets, and our profit and loss statements to make sure that the values that we embody here in this chamber are expressed in the behavior through our economy."

The bill clarifies the current statute to better define "comparable work," outlaws employers from forbidding employees to discuss their salary with other employees, increases the fine for pay equity violations from $100 to $1,000, and requires employers to post a notice to employees of their rights under the act.

The bill also bans employers from reducing the pay of an employee to comply with the act, clarifies that the attorney general may bring an action to collect unpaid wages on behalf of one or more employees, and adds four conditions, in addition to seniority, where variations in pay may exist for comparable work, according to a bill summary.

In urging her colleagues to vote in favor of the bill, Senate Ways and Means Chairwoman Karen Spilka said that if no additional action is taken, it would be another 42 years before men and women were paid equally.

"Maybe my great-great-great grandchildren will come of age and not have a gender wage gap, but that's not even a definite," the Ashland Democrat said. "That is why this is a cause of action and an alarm that we have to do something."

Spilka said that Massachusetts was the first state to pass a pay equity law, in 1945.

Sen. Patricia Jehlen, the Somerville Democrat who filed the bill and has sponsored similar legislation in other sessions, said it would benefit children as well as women.

"This is one of the most significant things we can do to close the achievement gap in schools," Jehlen said. "As we raise women out of poverty, we raise children out of poverty."

The bill, also supported by Treasurer Deb Goldberg and Attorney General Maura Healey, was drafted with the support of organizations including the Women's Bar Association and the Massachusetts chapter of the National Organization of Women, Jehlen said.

The legislation divided the business community, winning the backing of the Greater Boston Chamber of Commerce but meeting opposition from Associated Industries of Massachusetts and the Massachusetts High Technology council.

Describing the bill as "misguided in its approach" despite noble intentions, Mark Gallagher, the council's executive vice president for public policy and communications, said it would put companies at risk for frivolous lawsuits if they pay employees commissions or other performance-based compensation.

"The bill imposes on employers a very high burden of proof to establish that compensation differentials fit within narrow but undefined safe harbors which are open to subjective definition and interpretation." he said. "By elevating the level of risk associated with merit-based compensation systems, the law could actually discourage an employer from paying more to a woman employee who is higher-performing than a male counterpart and vice versa."

Jehlen, while discussing the bill on the Senate floor, said she believed the legislation would actually reduce lawsuits, pointing to provisions she said encourage businesses to self-evaluate their pay practices.

Self-evaluations could be used as an affirmative defense in a pay discrimination claim, if they were conducted within the previous three years and the employer could demonstrate "reasonable progress" toward closing pay differentials. The evaluation and any steps taken to close a gap could not be used as evidence of a violation of pay equity.

The gravity of the Senate's vote, which several senators mentioned when they rose on the Senate floor to speak in support of the bill, was underscored when Senate President Stanley Rosenberg asked the clerk to call his name first when taking a roll call vote on the bill. The Senate president traditionally does not vote on most bills.

The bill (S 2107) was approved 37-0.

"When President Kennedy signed the Equal Pay Act of 1963, women earned 59 cents on the dollar. It's been 53 years, and we've closed the gap to 82 cents on the dollar in Massachusetts. We cannot -- we will not -- wait another half century to finally achieve equal pay for equal work," Rosenberg said in a statement. "I look forward to working together with the Governor and Speaker to pass this critical piece of legislation."

But the support of House Speaker Robert DeLeo, to whose chamber the bill now goes, and Gov. Charlie Baker is uncertain. On Monday, both men stopped short of offering support for the legislation.

"Relative to the particular piece of legislation, again, I would have to state that I really need to take a look at the other provisions," DeLeo said. "But I will tell you that it has always been my overriding statement to everything that what I believe is equal pay for equal work."

Baker said he does not like to comment on pending legislation. He said everyone should get "a fair shot" when it comes to employment and compensation, and added, "the devil oftentimes is in the details on this stuff."

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