Full enforcement by Oregon’s Bureau of Labor and Industries (BOLI) of Oregon’s Equal Pay Act of 2017 will begin January 1, 2019.
Any Oregon employer who has not already prepared for full compliance by that date should begin planning now, given that the 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.
Employers are prohibited from seeking the pay history of an applicant or employee (whether from the applicant/employee or from a current or former employer of the applicant/employee) before the employer makes an offer of employment to the prospective employee that includes an amount of compensation.
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, workplace location, travel requirements, training, and 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 may not reduce the compensation of any employee in order to comply with the law. Further, employers will be required to post notices about the law. The Bureau of Labor and Industries (BOLI) has made a template available to employers.
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.
An employer can avoid paying 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 all employers to conduct such an analysis before January 1, 2019. In addition, employers should update their job application forms to remove any questions about compensation history.
Similar laws have been enacted in Washington, California, New York, Massachusetts, New Jersey and Maryland, as well as a number of cities.
Please feel free to contact us if you have any questions about this law or any other employment-law issues.
