Monthly Archives: July 2018

Employment Discrimination, In Our Opinion..., Labor In The News

Equal Pay For Men And Women Doing Comparable Work: A New Massachusetts Law Takes Effect

John Becker
John Becker July 23, 2018

On July 1, 2018 a new comprehensive pay equity law took effect in Massachusetts that seeks to eradicate the wage disparities between women and men working in the Commonwealth. See Mass. Gen. Laws c. 149, § 105A, as amended by St. 2016, c. 177, § 2. The new law, which amended an earlier version passed in 1945, is a comprehensive attempt to bring women’s wages to the same level as men’s. According to recent statistics, the average full-time working woman in Massachusetts makes only 84.3 % of the average full-time working man. In addition to making it easier for employees to make claims for unequal pay based on gender, the law also makes it unlawful for employers to prevent their employees from talking about their pay, and prohibits employers from asking about your pay history when you apply for a job.

To understand the background of this significant change in the law, it is necessary to go back to 1945, when Massachusetts became the first state in the nation to enact a law prohibiting employers from paying men and women differently for comparable work. St. 1945, c. 584, § 3. The only exception provided in the law was for pay differences based on seniority. In 1963, the federal government passed a narrower version of the law, which required equal pay for men and women, but only if they were doing equal work, that is, work that required “equal skill, effort, and responsibility” and was “performed under similar working conditions.” 29 U.S.C.A. § 206(d). The federal law had four exceptions: (1) seniority; (2) merit; (3) quantity or quality of production; or (4) “any other factor other than sex.”

After 1963, inquiring minds wanted to know: What’s the difference between the federal law (equal pay for equal work) and the earlier Massachusetts law (equal pay for comparable work)? In the 1990s, a group of food service workers in the Everett Public Schools, with the support of a union, the Massachusetts Teachers Association, decided to find out what “comparable” really meant. The food service workers, who were all women, claimed that they performed work that was comparable to the school janitors, who were all men, but were paid less. After a lengthy trial, a Superior Court judge found in favor of the food service workers. Applying the four-part test of the federal law, the judge found that the food service workers and the janitors performed work that required comparable skill, effort, responsibility and was performed under comparable working conditions. The judge ordered the employer to pay the food service workers the same as the janitors.

The School Committee appealed the decision to the Supreme Judicial Court, which reversed the lower court. The SJC in 1995 (and again in 1998) ruled that the judge had applied the wrong legal standard to the Massachusetts Equal Pay Act. See Jancey v. School Committee of Everett, 421 Mass. 482 (1995) and Jancey v. School Committee of Everett, 427 Mass. 603 (1998). According to the SJC, after applying the four-part test of the federal law, the judge should have applied a fifth test: Were the job duties of the positions being compared similar enough to make comparison practical? Janitors and food service workers have very different job duties, the SJC found, and the law was not intended to compare different types of jobs in this way.

Supporters of equal pay drafted legislation to overturn the result in Jancey, but it wasn’t until 2014 that their efforts came to fruition with the passage of An Act to Establish Pay Equity, which took effect at the beginning of this month. The law retains the standard of equal pay for comparable work, but it defines the standard in a way that removes the fifth test set out in Jancey and effectively overrules that case.

Under the new version of the Massachusetts Equal Pay Act (MEPA), nearly every employer in Massachusetts (except certain domestic and agricultural workers, and federal employees) must pay men and women the same in all aspects of wages and benefits if their jobs require comparable skill, effort and responsibility, and are performed under similar working conditions. There is no requirement that the difference in pay be intentional or the result of discriminatory animus; this is a strict liability standard. An aggrieved employee may file a complaint with the Attorney General or may go directly into Superior Court to challenge a violation of the law. The employee does not need to file a discrimination complaint with the Massachusetts Commission Against Discrimination to challenge an equal pay violation. If the employee succeeds in proving a violation of the law, she is entitled to: (1) the difference in pay going back a maximum of three years; (2) an equal amount in liquidated damages; and (3) reasonable attorneys fees and costs. A complaint must be filed within three years of an employer’s action creating the pay discrepancy or within three years of the employee’s most recent paycheck. NOTE: The employer cannot eliminate gender-based differences in pay by reducing anyone’s pay.

While the new law gives MEPA new life after the Jancey case effectively killed it, it also gives employers new defenses that didn’t exist in the previous law. For example, a difference in pay between men and women does not violate MEPA if it is made pursuant to any of the following reasons:

  1. a seniority system (but employee seniority can’t be affected by pregnancy or family and medical leave);
  2. a merit system;
  3. a system that rewards quality or quantity of production;
  4. the geographic location of the work (if based on legitimate regional differences);
  5. education, training or experience (if reasonably related to the job); or
  6. travel (if travel is a regular and necessary aspect of the job; commuting not included).

There is also an affirmative defense in the law for employers, who can successfully oppose a MEPA claim if they can show:

  1. They conducted a good faith, reasonable self-evaluation of their pay practices;
  2. The evaluation is reasonable in detail and scope;
  3. The evaluation was conducted within three years prior to the filing of the complaint; and
  4. The employer can show reasonable progress towards eliminating any gender-based wage differentials revealed by the evaluation.

In addition to toughening up MEPA, the new law also includes provisions regarding employee and employer discussions of pay and pay history. The law requires employers to allow their employees to discuss their pay with co-workers, or anyone else, for that matter. (The idea here is that allowing employers to gag their employees allows the perpetuation of discriminatory pay practices.) At the same time, the law prohibits employers from disclosing employee pay and salary information to others unless (1) the employee affirmatively consents or (2) the information is a public record, as with public employees.

Furthermore, the law attempts to cut down on the perpetuation of discriminatory practices by prohibiting employers from asking prospective employees about their past salary or salary history. There are exceptions here too:

  1. the employer can confirm prior wage history with former employers if the prospective employee voluntarily provides information about prior pay;
  2. the employer can ask a prospective employee his or her salary expectations for the new position, as long as it doesn’t ask where the expectation came from; and
  3. the employer can ask for prior pay information once it has made a job offer with a compensation package.

For more detailed information about the new law, see the Attorney General’s Overview and Frequently Asked Questions.

The passage of the new, improved MEPA proves that where there is significant opposition to a court interpretation of a law, the legislative process, while sometimes slow, can act to amend the law and effectively overrule the court. Although the neutrality of the court system and its ability to interpret the laws remain intact, the democratically-elected representatives of the people get the last word.

In Our Opinion..., Labor In The News

Supreme Court’s Janus Decision: What Does It Mean?

Alan Shapiro
Alan Shapiro July 9, 2018

On June 27, 2018, the US Supreme Court issued its long expected decision in the case of Janus v. AFSCME, Council 31. By a 5-4 majority, the Court ruled that it is unconstitutional for a union representing public employees (federal, state, or municipal) to require its members to pay anything to their union, even though, in most states, that union still has a duty to represent them. If it seems odd for the Supreme Court to rule that unions, private organizations funded by workers’ dues, should have to provide free services to fellow workers who choose not to pay dues, welcome to the current political landscape. But, first, how does the case affect unions now?

Janus has no effect on unions representing private employees. It deals only with public employee unions, such as police officers, fire fighters, teachers, municipal and state workers.

If you are a union member, you continue being a member. There is no direct effect on you.

The immediate impact is: there is no more required agency service fee. What, you may ask, is an agency service fee?

In certain states with public sector collective bargaining laws, such as Massachusetts (governed by Chapter 150E), when a union is chosen by a group of workers to represent them for collective bargaining purposes, that union is obligated to represent all of the employees in that particular group. The group represented by the union is called a bargaining unit. For example, when the police in, say, Lynn, voted to be represented by the Lynn Police Association, that Association (for our purposes, “Association” and “Union” are the same thing) became the “exclusive collective bargaining representative” of the bargaining unit of all of the police in Lynn. Under Chapter 150E, that Association became legally obligated to represent all of the Lynn police, because they are all part of its bargaining unit.

Under preexisting law, public employees could not be compelled to join a union, even when that union has a duty to represent them. However, in Massachusetts and other states with fully developed labor laws, bargaining unit employees who did not want to join their union could be required to pay their fair, proportionate share of the union’s cost of representing them. As members of the bargaining unit, agency fee payers receive the same wages and contractual benefits as union members. Their grievances had to be processed the same as members’ grievances. This “fair share” payment is an agency service fee.

Generally, the amount of the agency service fee was somewhere around 80-85% of the union dues. Not being union members, employees who paid agency service fees could not run for union office, serve in any union position, or have any say in how their unions were run. They also received considerably fewer services than union members, but more about this below. Suffice it to say that, in Massachusetts, not many workers opted to be agency fee payers and, among public safety unions, they were virtually non-existent.

The Janus decision says members of a bargaining unit who refuse to join their union can no longer be required to pay an agency service fee. In fact, they cannot be required to pay anything. Yet their union, under existing Mass. law, still has a duty to represent them in the areas where the union serves as the exclusive collective bargaining representative. Those areas are contract negotiations and grievance processing.

While the case was supposedly decided on First Amendment (“free speech”) grounds, anyone who thinks it a product of refined legal reasoning and scholarship should consider applying to Trump University. The decision is designed to cripple public sector unions, who provide both funds and foot soldiers for causes which ultra-conservative billionaires like the Koch Brothers oppose. We need only look at the 62-38 trouncing of the charter school referendum in the 2016 Mass. election. Only the human and economic resources of teacher and other unions (both public and private sector) succeeded in countering the tens of millions of dollars the charter school proponents pumped into the campaign. These ultra-rich also don’t particularly enjoy paying taxes so that police officers, fire fighters, teachers, and other public workers can lead decent lives with decent benefits and retire on livable pensions. In short, Janus is only superficially about free speech; what it’s really about is breaking unions.

While quitting your union and letting your co-workers’ dues pay for the cost of negotiating your contract and handling your grievances may be an option for some, there are significant downsides to this approach. In many unions, particularly public safety, union members receive significant benefits outside of the contract which are not provided to non-members. Unions represent their members in civil service, retirement, unemployment, and other areas where non-members receive no services. For police officers, in particular, unions provide legal representation at critical incidents and defend their members in civil and criminal cases arising out of their employment. Union members also receive representation in both departmental (“internal affairs”) and external (state and/or federal) investigations. Since these services are provided outside of the collective bargaining agreement, non-members receive none of them. Teachers in Massachusetts who are wrongly terminated can appeal only through an individual arbitration process. The union will fight to get its members their jobs back; non-members can either represent themselves or mortgage their homes to hire their own counsel.

Besides these specific and practical reasons, public workers, at least in Massachusetts, need only look at the benefits they have gained through collective bargaining. During this past year, we have seen teachers in states without union bargaining rights (West Virginia, Oklahoma, Kentucky) marching on their state capitals to achieve even the most modest wage and benefit improvements. While public employees in Mass. have not gotten rich, they have at least been able, for the most part, to be able to lead decent lives, raise and support their families, and retire with some modicum of financial security.

You can anticipate that anti-union groups will conduct a negative campaign to try and convince you to abandon your union and stop paying dues. Groups like the NRTW (National Right to Work) organization, (an oxymoron if ever there was one) will undoubtedly conduct a campaign. They will likely start with the teachers, but all other public employee unions will come next. Members who want to abandon their union must, in Massachusetts, provide at least 60 days’ notice of cancellation. This will provide you and others from your union an opportunity to educate your colleague. The message is very simple: Your union is only as strong as its members; working together we can make our lives better and have some say in our destiny.

Not too long ago, when you bought a house, you got a 30 year mortgage. You paid the same amount every month and, over time, you gained some equity. If you stayed in the house, eventually you paid it off and not only had a place to live but also something to pass on to your children. Then, about 20 years ago, some Wall Street sharpies got a lot of people to refinance or buy new houses. For the first few years, there were very low monthly payments on artificially low interest rates with no payments of principal. The sharpies made a lot of money creating and selling complex financial instruments with these mortgages. If your house went up in value and you sold it, it was a great deal. But in 2008 and 2009, when you couldn’t sell your house, all of a sudden the principal payments and higher interest rates kicked in and the monthly payments were crushing. A lot of people lost their homes.

This is what Janus is all about. On the surface, getting some of the benefits without paying anything looks great. But, over the long haul, you’re just being taken for a sucker. Let’s not get fooled again.