The new law applies to all employers in Oregon (except for the federal government), regardless of size.
The Equal Pay Act prohibits Oregon employers from paying employees who perform “work of comparable character” different pay rates because of their race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.
It also prohibits Oregon employers from screening job applicants based on their current or past compensation and from basing compensation on their pay history.
Employers can ask about candidates’ pay history only after making a job offer that includes a wage amount.
The law does allow for different pay for comparable work if the pay rates are based on one or more of the following factors: seniority, merit, education, travel requirements, education, training, or experience.
In addition, a pay system that measures earnings by the quantity or quality of work, such as piece-rate work, is allowed.
“Work of comparable character” is defined by the statute as work “that requires substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or job title.”
Employers will be required to post notices about this new law. The Bureau of Labor and Industries (BOLI) will make a template available to employers, but the template is not yet available.
An employee who brings a successful claim under this new law could be awarded two years’ back pay, compensatory damages, punitive damages, and attorneys’ fees.
The law expressly permits employees to bring claims not only on their own behalf, but on behalf of a class of similarly situated employees.
Most of the act takes effect January 1, 2019, but employees will not have a private right of action under the provision prohibiting employers from inquiring into prospective employees’ salary histories until January 1, 2024.
BOLI will be authorized to enforce those sections of the law as of September 2017, however, so employers need to promptly remove such questions from their job applications.
An employer can avoid having to pay punitive and compensatory damages if it can prove that in the three years before an employee’s complaint is filed, the employer (a) completed an appropriate equal pay analysis (as described in the statute), (b) eliminated wage disparities for the complaining employee and (c) made reasonable and substantial progress toward eliminating wage disparities for the protected class.
It would, therefore, be a good idea for employers to conduct such an analysis before January 1, 2019.
Similar laws have been enacted in California, New York, Massachusetts, and Maryland, as well as a number of cities.
Please feel free to contact us if you have any questions about this new law or any other employment-law issues.
