The Law @ Work

Ready, Set, Go…Write or Update Those Job Descriptions Now!

by Amelia J. Holstrom

In August 2016, Governor Charlie Baker signed a new law strengthening pay equity in the Commonwealth.  Under the new law, which goes into effect on July 1, 2018, pay differences between persons performing “comparable work” will be acceptable only if based upon one of the following factors: (1) a seniority system; (2) a merit system; (3) a per unit or sales compensation scheme; (4) geographic location of the job; (5) education, training and experience; or (6) the amount of travel required.

Notably, the new law defines “comparable work” as work that requires “substantially similar skill, effort and responsibility” and is performed under “similar working conditions.” This “substantially similar” language is broader than the “substantially equal” test used under federal law and makes clear that jobs do not have to be in the same category in order to be comparable.  This will likely lead to more favorable results for plaintiffs who file claims under the new state law.

The new state statute provides employers with an affirmative defense to a pay discrimination claim.  Employers who complete a “good faith” self-evaluation of their pay practices and demonstrate “reasonable progress” toward eliminating any wage differentials may avoid some liability under the law.  As of right now, the Attorney General has not issued any guidance and the statute does not make clear what the terms “good faith” and “reasonable progress” mean.  What is clear is that before the law goes into effect, employers need to conduct an audit of their pay practices to identify and remedy any pay disparities before the law goes into effect.

Although there are several parts to an audit, a crucial piece will be identifying which jobs entail “comparable work” under the statute.  It will not be enough for employers to rely merely on what they believe employees do in each position or what they are told they do in each position. Determining which positions are comparable will require a careful review of the positions as a whole and all of their current requirements, including skills, responsibilities, and working conditions.  It is also imperative that what the jobs require be in writing and updated.  That’s where your job descriptions come in.

Job descriptions are important for a number of reasons. First, a job description is useful for clearly communicating the requirements and expectations for a position to the employee.  Second, well-written and frequently-updated job descriptions help employers defend against a variety of legal claims that may be brought by employees.  Third, job descriptions can assist employers and physicians in determining whether employees are able to perform the essential functions of their job with or without a reasonable accommodation.  In addition to these and other reasons, job descriptions will be crucial for employers seeking to demonstrate that certain positions are or aren’t comparable to one another for pay equity purposes.

Employers should regularly review job descriptions to ensure that they are 100% accurate.  With the pay equity law’s effective date quickly approaching, employers need to start audits now, and before they do so, they should update their job descriptions to accurately reflect what each position requires.  Without written job descriptions, an employer will have a more difficult time defending a lawsuit brought by a plaintiff who alleges that his or her job actually required more or less than what the employer says it did, which might affect which jobs his or her job needs to be compared to when determining issues of pay equity.

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