Part II: What is Comparable Work Under the Pay Equity Act?

On July 1, 2018,  An Act to Establish Pay Equity (the “Act”) goes into effect.  The Act prohibits discrimination in payment of wages on the basis of gender.  In our first article about the Act, we examined the broad scope of the Act and how it applies to most employers and employees in the Commonwealth.  Below is the second in our series of articles concerning the Act, which examines the complicated definition of “comparable work”.

Under the Act, it is unlawful to pay individuals of different genders an unequal wage for performing “comparable work”.  What will be difficult for most employers will be determining whether employees are performing “comparable work” within the meaning of the Act.  Notably, the mere fact that employees have similar job titles does not determine whether employees perform “comparable work.  Conversely, the fact that two employees have different job titles does not mean that they are not performing “comparable work”.

The Act defines “comparable work” as work that “requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions.”  The Attorney General’s guidelines for interpreting the Act (the “Guidelines”), which can be found at the following link, https://www.mass.gov/files/documents/2018/03/01/AGO%20Equal%20Pay%20Act%20Guidance.pdf

break down the definition into three key components: (1) substantially similar; (2) skill (3) effort, (4) responsibility; and (5) similar working conditions.

  • “Substantially similar” means that the skill, effort and responsibility (discussed in more detail below) involved in the work are alike to a great or significant extent, although they may not be identical.

 

  • “Skill” includes factors such as experience, training, education, and ability required to perform the work. This factor must be measured in terms of skill required to complete the work, not in the skill level a particular employee may have at a given time.

 

For example, in a retail sales environment, a bookkeeping job would not be considered comparable work to a job as a sales associate.  The bookkeeping job would likely require some education in finance or accounting, where the sales position would not.  Also, the sales position would likely require certain experience and training in sales, which would not apply to the bookkeeping job.  Conversely, in an elementary school setting, janitorial work and food service work may properly be considered “comparable work” because neither requires specific education requirements or previous experience in the field to properly complete the work.

 

  • “Effort” is the amount of physical or mental exertion needed to perform a job.  To use the same examples listed above, the bookkeeping job would likely be a sedentary office position with low physical exertion, whereas the sales position would likely require more standing and walking while performing the work.

 

  • “Responsibility” refers to the degree of discretion or accountability involved in completing the essential job functions and regular duties. This would encompass areas such as supervision of employees, decision making, and determining policies or procedures for the employer.

 

  • “Similar working conditions” deals with the physical environment in which the work is performed, and considers other similar factors such as the potential hazards involved in the workplace, the potential for injury, and shift time/time of day for performing the work.

If two differently-gendered employees perform “comparable work”, then those employees must be paid an equal wage.  Under the Act, the term “wage“ is defined broadly to include all forms of remuneration, including pay, benefits, time off, expense accounts, access to vehicles, profit sharing, retirement plans, insurance coverage, and all other types of benefits that are offered to employees, whether they are paid to an employee directly or to a third party on the employee’s behalf.  Notably, the Act prohibits employers from attempting to comply with the statute by simply paying a larger bonus to some employees at the end of the year to make up for wage disparities.

Please read the third installment in our series, titled Part III: Permissible Disparities In Wages.  If you have questions about the Act and whether it applies to your business or employees, please contact Attorney Michael P. Doherty, Andrew M. Kepple or one of our other employment attorneys at 508 541-3000.