Like the Federal Equal Pay Act, the Maryland Equal Pay for Equal Work Act (MEPA) has long prohibited pay discrimination on the basis of sex. A recent expansion of MEPA took effect on October 1, 2016. MEPA covers all Maryland employers without regard to the number of employees.
MEPA now prohibits unequal pay based on sex or gender identity. “Gender identity” means the gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the person’s gender identity or any other evidence that the gender identity is sincerely held as part of the person’s core identity.
MEPA also prohibits employers from providing less favorable employment opportunities based on sex or gender identity. For example, employers may not assign or direct employees into less favorable career tracks, fail to provide information about promotions, or limit employment or advancement opportunities on the basis of sex or gender identity.
Definition of “Same Establishment”
An employer may not pay unequal wages on the basis of sex or gender identity to employees who perform comparable work in the same establishment. Employees are now considered to work in the same establishment if they work for the same employer in one or more workplaces located in the same county of Maryland.
Permitted Wage Variations
MEPA permits variations in wages among employees that are:
- based on nondiscriminatory seniority and merit systems;
- for jobs involving different skills, duties, or shifts;
- based on a system measuring the quality or quantity of production; OR
- based on bona fide factors other than sex or gender identity, such as education, training, and experience.
MEPA includes a new provision that will require many Maryland employers to change their current policies and practices. Employers may not prohibit an employee from inquiring about, discussing, or disclosing the wages of that employee (or the wages of another employee), or asking the employer to explain the reason for the employee’s wage. Employers may not take any adverse action against an employee for engaging in activity protected by this provision, nor may employers require an employee to sign a waiver of the employee’s rights to discuss the employee’s wages.
Employers are entitled to implement a written policy establishing reasonable workday limitations on the time, place and manner for wage discussions. For example, such a policy could prohibit an employee from discussing the wages of another employee without that employee’s permission. The amended law does not create an obligation on any employer or employee to disclose wages or permit an employee to disclose wage information to a competitor of the employer.
Consequences for Violating the Law
Employers who violate MEPA may be liable to the affected employees for injunctive relief, actual damages and an equal amount as liquidated damages, and legal fees. Claims must be brought within three years of the employee’s final paycheck.
Employers should review and update their compensation policies and practices to ensure compliance with the expanded MEPA. Employers should provide specific guidance to supervisors regarding the new wage transparency rules.
Please contact Kathy Hoskins, Steve Metzger, or another member of the firm’s Employment Law Group if you need assistance in complying with this new rule.
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