Text Size:   A+ A- A   •   Text Only
Find     
Site Image

OREGON EQUAL PAY LAW
Oregon law currently prohibits employers from discriminating between “the sexes” in the payment of wages for work of comparable character. ORS 652.220.
The Equal Pay Law (House Bill 2005), enacted by the 2017 Oregon Legislative Assembly, amends the current law as follows:
 
Unlawful Practices Under Equal Pay Law
 
Effective January 1, 2019, the law makes it an unlawful employment practice under ORS chapter 659A (Unlawful Discrimination laws) for an employer to:
 
·       In any manner discriminate between employees on the basis of an employee’s status as a member of a protected class[1] in the payment of wages or other compensation[2] for work of comparable character;
 
·       Pay wages or other compensation to any employee at a rate greater than that at which the employer pays wages or other compensation to employees of a protected class for work of comparable character;
 
·       Screen job applicants based on current or past compensation;
 
·       Determine compensation for a position based on current or past compensation of a prospective employee (not including a current employee of the employer during a transfer, move or hire of the employee to a new position with the same employer);
 
·       Seek the pay history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee before the employer makes an offer of employment to the prospective employee that includes an amount of compensation. ORS 652.220(1); ORS 659A[3].
 
Pay History
 
·       Effective October 6, 2017 employers are prohibited from seeking the pay history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee before the employer makes an offer of employment to the prospective employee that includes an amount of compensation;
 
·       BOLI enforcement of this provision will begin January 1, 2019;
 
·       Alleged violations of this provision are only enforceable by filing a complaint with BOLI through 2023. Effective January 1, 2024, an individual may also elect to bring a civil suit alleging violation of this provision.
 
Permitted Circumstances for Paying Employees Performing Work of a Comparable Character at Different Compensation Levels
 
The law provides that employers may pay employees for work of comparable character at different compensation levels if all of the difference in compensation levels is based on a bona fide factor that is related to the position and is based on:
 
·       A seniority system;
 
·       A merit system;
 
·       A system that measures earnings by quantity or quality of production, including piece-rate work;
 
·       Workplace locations;
 
·       Travel, if travel is necessary and regular for the employee;
 
·       Education;
 
·       Training;
 
·       Experience; or
 
·       Any combination of these factors, if the combination of factors accounts for the entire compensation differential. ORS 652.220(2).
 
Additional Provisions of Equal Pay Law
 
ORS 652.220(3) currently prohibits employers from discriminating against an employee because the employee has filed a complaint under the law or has testified, is about to testify, or because the employer believes the employee may testify in any investigation or proceedings related to the law. Effective January 1, 2019 the provisions of this law will extend to complaints filed under ORS chapter 659A (Unlawful Discrimination laws). In addition, the following provisions have been added to the law:
 
·       Employers may not reduce the compensation of any employee in order to comply with the law;
 
·       Amounts owed to an employee because of a failure of an employer to comply with the requirements of the Equal Pay Law are considered “unpaid wages” under the law;
 
·       Employees who assert violations of the Equal Pay Law may file complaints with the Civil Rights Division of the Bureau of Labor and Industries (BOLI) or a civil action within one year after the occurrence of the unlawful practice;
 
·       An unlawful compensation practice is deemed to have occurred each time compensation is paid pursuant to a discriminatory compensation decision or other practice;
 
·       Notices of claim against public bodies (tort claim notices) must be given within 300 days of discovery of the alleged loss or injury;
 
·       Employers are required to post a notice of the requirements of the law in every establishment where employees work. BOLI is to provide a template that meets the required notice provisions. ORS 652.220(4)-(7); ORS 652.230(5)-(7); 659A.875(7) and (8).
 
Legal Remedies under the Law
 
The law provides that if the commissioner of BOLI issues a final order in favor of a complainant alleging a violation of the Equal Pay Law, the law provides that the order must require the employer to pay an award of back pay for the lesser of:
 
·       The two-year period immediately preceding the filing of the complaint, plus the period of time commencing with the date on which the complaint is filed and ending on the date on which the commissioner issued the order; or
 
·       The period of time the complainant was subject to an unlawful wage differential by the employer plus the period of time commencing with the date on which the complaint is filed and ending on the date on which the commissioner issued the order. ORS 659A.870(4).
 
Courts may award injunctive relief and any other equitable relief that may be appropriate, including back pay, as well as compensatory damages. ORS 659A.885(5).
 
Equal-Pay Analyses as Defense in Award of Compensatory and Punitive Damages
 
The amended law provides authority to courts to grant employer motions to disallow awards of compensatory and punitive damages in civil actions alleging violations of the Equal Pay Law if the employer demonstrates by a preponderance of the evidence that the employer:
 
·       Completed within three years before the date that the employee filed the action, an equal-pay analysis of the employer’s pay practices in good faith that was reasonable in detail and scope in light of the size of the employer and related to the protected class asserted by the plaintiff in the action; and
 
·       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 plaintiff.
 
If the court grants an employer’s motion to disallow awards of compensatory and punitive damages, the court may award back pay only for the two-year period immediately preceding the filing of the action, and may allow the prevailing plaintiff costs and reasonable attorney fees.
 
Evidence of an equal-pay analysis under this law is not admissible in any other proceeding.
 
Information that an employer has not completed an equal-pay analysis may not be used as evidence of a violation of the law.
 
September 2017
 


[1] “Protected class” is defined as “a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age. ORS 652.210(5).
[2] “Compensation” is defined to include “wages, salary, bonuses, benefits, fringe benefits and equity-based compensation.”
[3] Effective October 6, 2017 but not enforced until January 1, 2019.