Paid Paternity Leave under the Equal Pay Act

Beginning July 1, 2018, women – and men – can seek equal payment of “wages” regardless of gender under the newly revised Massachusetts Equal Pay Act (Equal Pay Act).  Originally passed in 1945, the Equal Pay Act was at the time the first state law requiring equal pay for equal work.  Continuing this tradition as a forerunner in ensuring civil rights, the Massachusetts legislature has recently revised the Equal Pay Act to define “wages” as “all forms of remuneration for employment.”  This solidifies the broad interpretation assigned to the term “wages” in the original Equal Pay Act by the Massachusetts Supreme Judicial Court, which directs our trial courts as to how they are to interpret our laws.  The term “wages” was previously undefined, and therefore, it was left to the courts to determine its meaning.  In 1995, the Massachusetts Supreme Judicial Court determined that “wages” include “fringe benefits.”  In making that determination, the court looked to various definitions of “wages,” one of which read as “[e]very form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual’s employer or directly with respect to work for him.”  The new language of the Equal Pay Act mirrors this expansive definition, and makes for the argument that if a company provides mothers with paid maternity leave, it must provide the same amount of paid paternity leave to fathers.

The Office of the Attorney General has issued an advisory guide to the newly formed Equal Pay Act, and therein defined wages “broadly[,] to include all forms of remuneration for work performed, including commissions, bonuses, profit sharing, paid personal time off, vacation and holiday pay, expense accounts, car and gas allowances, retirement plans, insurance, and other benefits, whether paid directly to the employee or to a third-party on the employee’s behalf.”  When asked whether “wages” includes benefits that an employee may choose not to take advantage of, the Office of the Attorney General advised that “what matters is that employees performing comparable work have the same opportunity to participate in benefit programs on the same terms, irrespective of gender – not whether they choose to do so.”  Paid parental leave fits well within such guidance.

For those who are worried that by exercising their rights, men might stunt the growing trend towards paid maternity leave, the new Equal Pay Act also makes explicit that a company cannot evade the law by simply reducing the compensation of the overpaid to match that of the underpaid.  This addresses the concern that a father who asserts his rights under the Equal Pay Act might encourage his employer to simply eliminate or reduce paid maternity leave.  Additionally, when men take the same amount of parental leave as women, this removes one incentive employers have to hire men over women.  In the United Kingdom, where paid maternity leave is required by law, it was reported by The Guardian newspaper prior to legislation requiring paid leave for fathers that forty percent of managers preferred hiring men over women to get around the costs of paid maternity leave.  This is a case where equal rights begets equal rights.  By taking action to preserve their own rights, men actually discourage discrimination against women in the hiring process.

In order to encourage employees to pursue these rights, the Equal Pay Act requires that the “court . . . in addition to any judgment awarded to the [employee], award reasonable attorneys’ fees to be paid by the [employer] and the costs of the action.”

The information contained herein should not be construed as legal advice or creating an attorney-client relationship.  In order to receive legal advice or create an attorney-client relationship, a person must first enter a formal agreement.

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