Oregon recently enacted the Oregon Equal Pay Act of 2017 expanding prohibitions on unequal pay. Under this law, districts and community colleges may not discriminate against persons of a protected class in payment of compensation for work of comparable character. A protected class is “a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.” Sexual orientation includes gender identity. Compensation includes “wages, salary, bonuses, benefits, fringe benefits and equity-based compensation.” Work of comparable character is defined as “work that requires substantially similar knowledge, skill, effort, responsibility and working conditions . . . regardless of job description or job title.” A school may, in limited circumstances, compensate employees differently for work of comparable character, if the difference is carefully calculated and consistent with the Act. Any difference in compensation must be based on a “bona fide factor related to the position in question” and calculated under a system based on: seniority, merit, workplace location, travel (if necessary and regular for the employee), education, training, experience, or a combination of these factors. Districts may not reduce wages of any employee to achieve equal compensation.
After these provisions take effect on January 1, 2019, any school that discriminates on the basis of a protected class may be held liable for back pay and attorneys’ fees. The school may also be liable for compensatory damages unless it can show that it completed an equal-pay analysis in good faith, within three years of the employee’s lawsuit, that it eliminated the wage differentials for the plaintiff, and has made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the employee. Schools should conduct equal-pay analyses and aim to eliminate prohibited wage differentials. Schools should keep accurate records and be prepared to demonstrate why any remaining wage differentials are justified under the Act.
Additionally, beginning on October 9, 2017, (91 days after the 79th Legislative Assembly regular session closes), schools may not ask a prospective employee for a salary history or for the applicant’s current salary. Making any hiring decision or determining the compensation for an open position based on an applicant’s current or past compensation is prohibited, and may result in a civil fine by the Bureau of Labor and Industries. For additional guidance, please see the Oregon Bureau of Labor and Industries' Technical Assistance FAQ on the Equal Pay Law at, www.oregon.gov/boli/TA/Pages/Equal%20Pay%20Law.aspx. After 2024, employees will have a private cause of action against districts that ask for their salary history. Districts should review their employment policies and applications to ensure that applicants are not asked for their salary history.
For questions about the amendments to the Equal Pay Act, please contact OSBA/PACE legal services attorneys at 503-485-4800 or email@example.com.