1. Introduction
Oregon employees who are members of broadly defined protected classes have for years been legally entitled to be free from discrimination in pay under state law. ORS 652.210 et seq Oregon employees are also protected by the federal Equal Pay Act of 1963. 29 U.S.C. Section 206 et seq
Recent amendments to existing law and additional statutory provisions have resulted in significantly 'new and improved' equal pay laws for Oregon employees. Protected classes under Oregon's revised Equal Pay Act, signed into law by Governor Brown on June 1, 2017, include:
Recent amendments to existing law and additional statutory provisions have resulted in significantly 'new and improved' equal pay laws for Oregon employees. Protected classes under Oregon's revised Equal Pay Act, signed into law by Governor Brown on June 1, 2017, include:
- race
- color
- religion
- sex
- sexual orientation
- national origin
- marital status
- veteran status
- disability
- age
ORS 652.210(5) (note that the Oregon legislature in the summer of 2019 passed Senate Bill 123, which was signed into law by Governor Brown on June 11, 2019 - any earlier versions of Oregon's new Equal Pay Act you may have in your files or online should be compared to the amended law in Senate Bill 123).
The coverage of state equal pay law in Oregon to include all of these protected classes (formerly the equal pay statutes were directed exclusively to inequities between "the sexes") became effective in Oregon as of January 1, 2019. Id. While a detailed discussion of all the changes and their potential impact on employees in equal pay litigation in Oregon is beyond the scope of this article, addressed below are some of the most significant changes and their potential impact on equal pay claims in Oregon.
You should contact an Oregon equal pay lawyer if you have questions about this new law. I have successfully handled equal pay claims on behalf of female employees, who of course were covered employees under extant equal pay law prior to January 1, 2019. However, note that even before passage of the new equal pay laws in Oregon, discrimination in pay based on age, race, sex etc. could be actionable under state and federal civil rights laws. See, e.g., ORS 659A.030(1)(b) (making it unlawful "to discriminate against the individual [in a statutorily-defined protected class] in compensation or in terms, conditions or privileges of employment"). Indeed, in the past I generally have framed equal pay claims as gender discrimination claims in addition to equal pay per se. Employers who violate equal pay laws may well tolerate discrimination in other areas such as scheduling, promotion, and work assignments. Including claims under Oregon and federal civil rights laws along with equal pay claims will continue to be the best approach in many cases.
The coverage of state equal pay law in Oregon to include all of these protected classes (formerly the equal pay statutes were directed exclusively to inequities between "the sexes") became effective in Oregon as of January 1, 2019. Id. While a detailed discussion of all the changes and their potential impact on employees in equal pay litigation in Oregon is beyond the scope of this article, addressed below are some of the most significant changes and their potential impact on equal pay claims in Oregon.
You should contact an Oregon equal pay lawyer if you have questions about this new law. I have successfully handled equal pay claims on behalf of female employees, who of course were covered employees under extant equal pay law prior to January 1, 2019. However, note that even before passage of the new equal pay laws in Oregon, discrimination in pay based on age, race, sex etc. could be actionable under state and federal civil rights laws. See, e.g., ORS 659A.030(1)(b) (making it unlawful "to discriminate against the individual [in a statutorily-defined protected class] in compensation or in terms, conditions or privileges of employment"). Indeed, in the past I generally have framed equal pay claims as gender discrimination claims in addition to equal pay per se. Employers who violate equal pay laws may well tolerate discrimination in other areas such as scheduling, promotion, and work assignments. Including claims under Oregon and federal civil rights laws along with equal pay claims will continue to be the best approach in many cases.
2. The Revised Oregon Equal Pay Law
The full text of the amendments to ORS 652.210 to 652.235 can be seen here: ORS 652.210-652.235
Below are some of the changes to Oregon Equal Pay Law as of September 2019.
Salary history inquiries prohibited: In 2017, effective October 6, 2017, the Oregon legislature passed a law prohibiting inquiries as to salary history. An employer in a job interview may not inquire about current or past salary history. However, after an offer of employment has been extended, provided the offer includes compensation terms, the employer may request permission to confirm prior compensation. Under ORS 652.210(1)(d), it is unlawful to: "(d) Determine compensation for a position based on current or past compensation of a prospective employee. This paragraph is not intended to prevent an employer from considering the compensation of a current employee of the employer during a transfer, move or hire of the employee to a new position with the same employer." Currently, this provision can be enforced only by the Oregon Bureau of Labor and Industries ("BOLI"), for the period from January 1, 2019 through December 31, 2023. After that, an employee can also file a civil claim in court to enforce their rights under the statutes.
Many other important changes to Oregon equal pay law became effective January 1, 2019, such as the following:
Expanded definition of "wages": "Wages" were defined, before the recent amendments, as "all compensation for performance of service by an employee for an employer, whether paid by the employer or another person, including cash value of all compensation paid in any medium other than cash." ORS 652.210(5) That definition has now been expanded to include compensation other than wages: "'Compensation' includes wages, salary, bonuses, benefits, fringe benefits and equity-based compensation." ORS 652.210(1)
Expanded definition of "protected class": Another significant change, mentioned above, is the expanded definition of "protected class," which is now defined at ORS 652.210(5) as: "(5) 'Protected class' means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age."
Formerly, the statute provided that it was unlawful to, "[i]n any manner discriminate between the sexes" or pay unequal wages "to employees of the opposite sex for work of comparable character, the performance of which requires comparable skills." Under prior law, pay discrepancies based on protected class other than sex were prohibited under ORS 659A.030, but could not be brought under the equal pay regime.
Permitted bases for pay differential: The new law spells out that, "an employer 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 in question and is based on:
Below are some of the changes to Oregon Equal Pay Law as of September 2019.
Salary history inquiries prohibited: In 2017, effective October 6, 2017, the Oregon legislature passed a law prohibiting inquiries as to salary history. An employer in a job interview may not inquire about current or past salary history. However, after an offer of employment has been extended, provided the offer includes compensation terms, the employer may request permission to confirm prior compensation. Under ORS 652.210(1)(d), it is unlawful to: "(d) Determine compensation for a position based on current or past compensation of a prospective employee. This paragraph is not intended to prevent an employer from considering the compensation of a current employee of the employer during a transfer, move or hire of the employee to a new position with the same employer." Currently, this provision can be enforced only by the Oregon Bureau of Labor and Industries ("BOLI"), for the period from January 1, 2019 through December 31, 2023. After that, an employee can also file a civil claim in court to enforce their rights under the statutes.
Many other important changes to Oregon equal pay law became effective January 1, 2019, such as the following:
Expanded definition of "wages": "Wages" were defined, before the recent amendments, as "all compensation for performance of service by an employee for an employer, whether paid by the employer or another person, including cash value of all compensation paid in any medium other than cash." ORS 652.210(5) That definition has now been expanded to include compensation other than wages: "'Compensation' includes wages, salary, bonuses, benefits, fringe benefits and equity-based compensation." ORS 652.210(1)
Expanded definition of "protected class": Another significant change, mentioned above, is the expanded definition of "protected class," which is now defined at ORS 652.210(5) as: "(5) 'Protected class' means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age."
Formerly, the statute provided that it was unlawful to, "[i]n any manner discriminate between the sexes" or pay unequal wages "to employees of the opposite sex for work of comparable character, the performance of which requires comparable skills." Under prior law, pay discrepancies based on protected class other than sex were prohibited under ORS 659A.030, but could not be brought under the equal pay regime.
Permitted bases for pay differential: The new law spells out that, "an employer 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 in question and is based on:
"(A) A seniority system;
(B) A merit system:
(C) A system that measures earnings by quantity or quality of production, including piece-rate work;
(D) Workplace locations;
(E) Travel, if travel is necessary and regular for the employee;
(F) Education;
(G) Training;
(H) Experience; or
(I) Any combination of the factors described in this subsection, if the combination of factors accounts for the entire compensation differential."
ORS 652.220(2)
Note that a new subsection (2)(b) was added to the statute, ORS 652.220(2), by Senate Bill 123 in the summer of 2019. This new subsection addresses the issue of pay differential for union members with collective bargaining agreements. The new subsection adds to the above grounds for differential compensation that: "(b) An employer may pay employees for work of a comparable character at different compensation levels on the basis of one or more of the factors listed in paragraph (a) of this subsection that are contained in a collective bargaining agreement."
Certain of these elements that may feasibly support a pay differential are more objective than others; e.g. a seniority system or workplace location or travel can generally be measured. Other considerations, such as a merit system, training or experience, may be more difficult to quantify. The courts likely will be called upon to clarify some of these issues. Note that from 2016 through 2017, a number of states have passed their own versions of expanded equal pay protection statutes, with Massachusetts leading the way. To date, other states with progressive legislation in this area include California, Delaware, and Oregon (as well as some cities, New York City and Philadelphia, and Puerto Rico). There will no doubt be substantial developments, both litigation and rule-making, in these jurisdictions in equal pay matters going forward.
Definition of discrimination expanded to include ORS 659A claims: Under prior law, it was unlawful to discriminate against an employee because the employee filed an equal pay complaint or had testified or intended to testify in an equal pay proceeding or in a criminal proceeding. That definition has now been expanded to prohibit discrimination for filing a complaint under ORS 659A. ORS 652.220(3)
Expanded remedies: The new Oregon equal pay law provides remedies beyond the relief previously available under state law. These remedies may include back pay, liquidated damages, punitive damages, injunctive or other equitable relief, and reasonable attorney's fees.
Defense to compensatory and punitive damages: An interesting feature of the new law is the motion to disallow an award of compensatory and punitive damages if the employer has "[c]ompleted, 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 (A) was reasonable in scope in light of the size of the employer" and if the employer has made "reasonable and substantial progress toward elminating unlawful wage differentials for the employer's employees." ORS 652.235 This standard differs significantly from the language originally enacted, which has been in effect since January 1, 2019. The 2017 version of the statute provided that, to avail itself of the defense, the employer must have "eliminated the wage differentials for the plaintiff" and made "reasonable and significant progress" toward eliminating differentials for the protected class plaintiff asserts. The version of this provision originally enacted in 2017 can be seen here: ORS 652.235
Like many features of the new law, it remains to be seen how this limited defense will play out. Its effect on employees certainly has been partially amelioriated with the amendments enacted in Senate Bill 123 in the summer of 2019. Nonetheless, even if the proper equal pay analysis has been conducted and all other prerequisites met, an employee will still potentially be entitled to back pay and attorney's fees. One certainty is that employers of any size and particularly larger employers will -- and should -- be moving toward and conducting equal pay analyses.
Note that a new subsection (2)(b) was added to the statute, ORS 652.220(2), by Senate Bill 123 in the summer of 2019. This new subsection addresses the issue of pay differential for union members with collective bargaining agreements. The new subsection adds to the above grounds for differential compensation that: "(b) An employer may pay employees for work of a comparable character at different compensation levels on the basis of one or more of the factors listed in paragraph (a) of this subsection that are contained in a collective bargaining agreement."
Certain of these elements that may feasibly support a pay differential are more objective than others; e.g. a seniority system or workplace location or travel can generally be measured. Other considerations, such as a merit system, training or experience, may be more difficult to quantify. The courts likely will be called upon to clarify some of these issues. Note that from 2016 through 2017, a number of states have passed their own versions of expanded equal pay protection statutes, with Massachusetts leading the way. To date, other states with progressive legislation in this area include California, Delaware, and Oregon (as well as some cities, New York City and Philadelphia, and Puerto Rico). There will no doubt be substantial developments, both litigation and rule-making, in these jurisdictions in equal pay matters going forward.
Definition of discrimination expanded to include ORS 659A claims: Under prior law, it was unlawful to discriminate against an employee because the employee filed an equal pay complaint or had testified or intended to testify in an equal pay proceeding or in a criminal proceeding. That definition has now been expanded to prohibit discrimination for filing a complaint under ORS 659A. ORS 652.220(3)
Expanded remedies: The new Oregon equal pay law provides remedies beyond the relief previously available under state law. These remedies may include back pay, liquidated damages, punitive damages, injunctive or other equitable relief, and reasonable attorney's fees.
Defense to compensatory and punitive damages: An interesting feature of the new law is the motion to disallow an award of compensatory and punitive damages if the employer has "[c]ompleted, 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 (A) was reasonable in scope in light of the size of the employer" and if the employer has made "reasonable and substantial progress toward elminating unlawful wage differentials for the employer's employees." ORS 652.235 This standard differs significantly from the language originally enacted, which has been in effect since January 1, 2019. The 2017 version of the statute provided that, to avail itself of the defense, the employer must have "eliminated the wage differentials for the plaintiff" and made "reasonable and significant progress" toward eliminating differentials for the protected class plaintiff asserts. The version of this provision originally enacted in 2017 can be seen here: ORS 652.235
Like many features of the new law, it remains to be seen how this limited defense will play out. Its effect on employees certainly has been partially amelioriated with the amendments enacted in Senate Bill 123 in the summer of 2019. Nonetheless, even if the proper equal pay analysis has been conducted and all other prerequisites met, an employee will still potentially be entitled to back pay and attorney's fees. One certainty is that employers of any size and particularly larger employers will -- and should -- be moving toward and conducting equal pay analyses.
3. Impact of the New Law
One of the benefits of significant experience and seniority in the employment law field is that I am generally not shy when it comes to predicting the impact of new legislation and rules. The potential impact of Oregon's new equal pay law, however, is difficult to measure at this early stage. Time will tell. For example, here in Oregon, employment law observers are closely watching developments in the putative class action lawsuit filed against Nike in 2018. See Cahill v. Nike, Inc. Complaint
It is simply too early to tell how significant the new law will turn out to be in terms of combating inequality in Oregon and in the other early adopter states. But the new laws are a solid step in the right direction, providing another set of arrows in the quiver of Oregon equal pay attorneys seeking to enforce equal pay laws on behalf of employees. The disparities we all know about in America (and internationally) between the pay received by women and men for equal work is shameful, as are the similar disparities applicable to other protected classes. EEOC Equal Pay Day 2019 (women must work until April 2, 2019 in order to earn as much as men earned in 2018). It is far past time for laws like Oregon's Equal Pay Act to begin redressing inequality.
If you believe that you are paid unequally for comparable work, do not delay in contacting an Oregon equal pay lawyer to discuss your situation.
It is simply too early to tell how significant the new law will turn out to be in terms of combating inequality in Oregon and in the other early adopter states. But the new laws are a solid step in the right direction, providing another set of arrows in the quiver of Oregon equal pay attorneys seeking to enforce equal pay laws on behalf of employees. The disparities we all know about in America (and internationally) between the pay received by women and men for equal work is shameful, as are the similar disparities applicable to other protected classes. EEOC Equal Pay Day 2019 (women must work until April 2, 2019 in order to earn as much as men earned in 2018). It is far past time for laws like Oregon's Equal Pay Act to begin redressing inequality.
If you believe that you are paid unequally for comparable work, do not delay in contacting an Oregon equal pay lawyer to discuss your situation.