July 22, 2014
Chairman Brian Dempsey
House Ways & Means Committee
State House Room 243
Vice-Chairman Stephen Kulik
House Ways & Means Committee
State House, Room 238
Boston, MA 02133
RE: WBA SUPPORT FOR HB 3883, AN ACT RELATIVE TO COMPARABLE WORK AND REP. STORY AND SEN. JEHLEN SUBSTITUTED AMENDMENT
Dear Chairman Dempsey and members of the House Ways & Means Committee,
The Women’s Bar Association of Massachusetts (WBA) is writing to express strong support for HB 3883, An Act Relative to Comparable Work, as amended. The WBA is a professional association of women attorneys and judges founded in 1978, with over 1500 members across the Commonwealth. At the WBA, our purpose is to achieve the full and equal participation of women in the legal profession and in a just society. Women have not yet achieved full and equal participation in the work place. For over a decade our organization has supported An Act Further Defining Comparable Work (originally filed as HB 1767 this Session), which has now advanced to the House Ways and Means Committee.
In January 2014, the Joint Committee on Labor & Workforce Development reported HB 1767 favorably as redrafted HB 3883. The bill was redrafted by: 1) striking the original text of HB 1767; 2) lengthening the time allowed to report a violation of the comparable work statute, from 1 year to 3 years; 3) prohibiting an employer from discharging, discriminating or retaliating against an employee who seeks to enforce their rights under the statute; 4) clarifying the law on pay secrecy; and 5) creating a Pay Equity Commission to study the issue and report its findings to the legislature.
HB 3883 charges the Pay Equity Commission to develop definitions of comparable work job categories, using the criteria of comparable skill, effort, responsibility and working conditions. The WBA supports HB 3883 because we believe that it represents an important first step towards defining comparable work and clarifying equal pay laws for both employers and employees. We believe that the development of these job categories as well as other policy recommendations from the Commission will provide an important foundation to return to the legislature at the beginning of the next session to file a comprehensive pay equity bill.
While Massachusetts General Laws Ch. 149, Section 105A already prohibits paying men and women differently for comparable work, the statute does not define “comparable” work. The Supreme Judicial Court (“SJC”) established a
two-part analysis Supreme Judicial Court (“SJC”) established a two-part analysis to define “comparable work” in Jancey v. School Committee of Everett, 421 Mass. 482, 489-490 (1995). The first part of the analysis requires examination of whether the jobs have “important common characteristics.” The second part of the analysis requires examination of “whether the two positions entail comparable skill, effort, responsibility, and working conditions.” The first part of the SJC’s analysis – an examination of whether the two jobs share important common characteristics- essentially requires that the two jobs being compared be almost identical. We are concerned that requiring almost identical job content permits an employer to use discriminatory stereotypes to evaluate how much to pay female dominated occupations —even if the skill level, effort involved, responsibilities, and working conditions are similar. In these instances, gender-based discrimination will go unaddressed, thus perpetuating the wage gap. Thus, the WBA believes that comparable work should be defined solely by comparable skill, effort, responsibility, and working conditions—objective and measurable criteria.
Ultimately, we would like to see a change in the language of the comparable work statute that defines “comparable work” solely on the basis of comparable skill, effort, responsibility and working conditions because that language would correct the current problem in the law and will provide an incentive for employers to change their behavior.
For that reason, we support the proposed amendment (attached) by original bill sponsors Representative Story and Senator Jehlen that strengthens HB 3883 by ensuring that there is strong representation by legislators on the Commission to control the timeline of the body’s work to meet legislative deadlines, as well as diverse representation of community groups.
Massachusetts proved itself to be a leader in the fight for equal pay when it was the first state to adopt legislation requiring equal pay for comparable work in 1945. The WBA respectfully requests that the House Ways & Means Committee report HB 3883 favorably and substitute the text of the amendment offered by Representative Story and Senator Jehlen.
Thank you for your consideration.
Proposed Redraft of HB 3883 Offered by Representative Ellen Story and Senator Pat Jehlen:
SECTION 1: Section 105A of chapter 149 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out, in line 28, the number “one” and inserting in place thereof the following number:- three.
SECTION 2: Said section 105A of chapter 149, as so appearing, is hereby further amended by inserting before the last sentence the following:-
An employer shall not discharge, discriminate or retaliate against an employee because such employee seeks to enforce the rights granted by this section. An employer may not prohibit an employee from disclosing the employee’s own wages or from inquiring about another employee’s wages if the purpose of the disclosure or inquiry is to enforce the rights granted by this section. Nothing in this section creates an obligation to disclose wages.”
SECTION 3: (a) There is hereby established a special commission on Pay Equity, which shall consist of 3 members of the house of representatives, 2 of whom shall be appointed by the speaker of the house and of whom 1 shall serve as co-chair, and 1 of whom shall be appointed by the minority leader; 3 members of the senate, 2 of whom shall be appointed by the president of the senate and of whom 1 shall serve as co-chair, and 1 of whom shall be appointed by the minority leader; the secretary of the executive office of labor and workforce development or a designee; the commissioner of the Massachusetts commission against discrimination or a designee; the director of the Massachusetts commission on the status of women or a designee; the executive director of the women and public policy program at the Harvard Kennedy School of Government or a designee; a representative from a chamber of commerce in the commonwealth; a representative from the Massachusetts women’s bar association; a representative from the associated industries of Massachusetts; a representative from the Massachusetts AFL-CIO; and a representative from the Crittenton Women’s Union. Regardless of whether appointments are outstanding, the commission shall convene its first meeting no later than September 1, 2014.
(b) The commission shall be responsible for: (1) the development of definitions of comparable work job categories, using the criteria of comparable skill, effort, responsibility and working conditions; (2) working with employers, employees and state agencies in order to promote fair and transparent pay practices; and (3) identifying solutions aimed at addressing challenges to gender pay disparities in the workplace.
(c) In reviewing pay equity and comparable work categories, the commission shall examine a variety of areas including, but not be limited to: (1) studying occupations that are dominated by individuals of the same gender and any pay disparities they may result; (2) meeting with occupational experts, academics, and researchers in order to identify traditional gender roles and occupations, and comparable work categories; (3) developing definitions of comparable skill, effort, responsibility and working conditions to be used when comparing job categories; (4) reviewing the legitimate reasons for pay differentials including merit based systems and systems that measure earnings by quantity or quality of production; (5) working with business groups and educational institutions to develop and maintain equal pay best practices; (6) encouraging employers to implement equal pay best practices; and (7) conducting outreach and education to employees and employers regarding pay equity.
(d) The commission shall report its findings to the general court, along with draft legislation necessary to carry its recommendations into effect, by filing the report with the clerks of the house of representatives and the senate, the chairs of the joint committee on labor and workforce development, and the chairs of the house and senate committees on ways and means, on or before January 1, 2015.
SECTION 4: Section 1 shall take effect on January 1, 2015.
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