Key Considerations to Help Your Company Understand its Obligations amp Achieve Compliance Presented by Andrew Schpak March 8 2019 Lay of the land Oregon Equal Pay Act of 2017 Statistics ID: 782077
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Slide1
i4cp
Oregon’s Pay Equity Law:Key Considerations to Help Your Company Understand its Obligations & Achieve Compliance
Presented
by Andrew SchpakMarch 8, 2019
Slide2Lay of the land
Oregon Equal Pay Act of 2017
Slide3StatisticsGender pay gap shrinking, but slowly:In 1980, women made 65% of men’s salary vs. approximately 85% today
Same work for same position: 2.5% differenceMinority pay disparity worse: 75% of non-minority pay- Pew Research Center, “The narrowing, but persistent, gender gap in pay” (April 3, 2017)
Slide4Oregon Equal Pay Act Of 2017Revised and expanded existing law Broadest law of this kind in the country
Goal: Eliminate pay gap between protected classes
Slide5Statutory LanguageUnlawful employment practice to: 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 characterUnless all of the difference in compensation levels is based on a bona fide factor that is related to the position in question…Affirmative Defense
Key: Discriminatory intent irrelevant
Slide6PenaltiesBack Pay (two years) Liquidated Damages (double pay)
Penalty wages (30 days) Compensatory damagesAttorney fees Punitive damages
Slide7New Restriction: Past SalaryUnlawful to seek salary history of applicant or employee or obtain from former employer
May seek confirmation of past employment and pay after conditional offer made Effective on October 6, 2017 BOLI claims as of January 1, 2019Private right of action after January 1, 2024
Slide85 Core Concepts
Slide9Core Concept #1: Protected ClassOriginal Category:Gender
New Categories: RaceColorReligionSex (gender)Sexual orientation (LGBT or perception)National originMarital statusVeteran statusDisabilityAge
Slide10Core Concept #2: “Compensation”Expands definition of “pay” Old: Wages
New: All compensationIncludes WagesSalary Bonuses Benefits Fringe benefits (car, meals, education)Equity based compensationBut not relocation reimbursement
Slide11Work that requires substantially similar:KnowledgeSkillEffortResponsibility
Working conditions“Regardless of job description or job title”Core Concept #3: “Work Of Comparable Character”
Slide12May pay employees performing work of comparable character differently if based on: Seniority systemMerit
systemSystem that measures earnings by quantity, quality, or piece-rate workWorkplace locationTravel, if necessaryEducationTrainingExperienceAny combination of the above factors (if they account for the entire compensation difference)Core Concept #4: Bona Fide Factors
Slide13Court shall grant motion to disallow an award of compensatory and punitive damages if employer demonstrates: Completed an equal pay analysis within three years that
Was reasonable in detail and scope for sizeRelated to protected class asserted by plaintiffEliminated wage difference for plaintiff; andMade progress to eliminate all pay
differences in protected class
Core Concept #5: Equal Pay Analysis
Slide14Work of Comparable Character
Slide15ORS 652.210(12): …. Means work that requires substantially similar knowledge, skill
, effort, responsibility and working conditions in the performance work, regardless of job description or job title.“Work Of Comparable Character”
Slide16OAR 839-008-0010(1)(a): Knowledge considerations may include, but are not limited to, the following:Certifications, licenses and
certificates;Education;Experience; orTraining.Knowledge
Slide17OAR 839-008-0010(1)(b): Skill considerations may include, but are not limited to, the following:Ability;
Agility;Coordination;Creativity;Efficiency; Experience; orPrecision.Skill
Slide18OAR 839-008-0010(1)(c): Effort considerations may include, but are not limited to, the following: Amount of physical or mental exertion needed;
Amount of sustained activity; orComplexity of job tasks performed.Effort
Slide19OAR 839-008-0010(1)(d): Responsibility considerations may include, but are not limited to, the following: Accountability, decision-making discretion or impact of an employee's exercise of their job functions on the employer's business;
Amount, level or degree of significance of job tasks;Autonomy or extent to which the employee works without supervision; Extent to which the employee exercises supervisory functions; orExtent to which an employee’s work or actions expose an employer to risk or liability.Responsibility
Slide20Working Conditions OAR 839-008-0010(1)(e): Working
condition considerations include the following: Work environment;Hours, which may include, but are not limited to, the following considerations:Alternative scheduling such as split shifts; Level
of busyness during hours of
work;Limited duration assignments;Number of hours; Overtime hours; orPart-time or full-time work.
Time
of day, which may include, but is not limited to, the consideration of shift differentials related to the day of the week or time of day work shifts are scheduled;
….
Slide21Working Conditions, Part 2 Physical surroundings, which may include, but are not limited to, the following
considerations:Air quality;Distractions;Dust;Exposure to
weather;Isolation;
Lighting;Noise; Physical design or layout of workspace;Temperature;Ventilation; or
Wetness.
Potential
hazards, which may include, but are not limited to, the following
considerations:
Degree
or severity of potential
injury;
Frequency
of
exposure;
Intensity;
Physical hazards;
Risk
of injury;
or
Toxicity
.
Slide22Debrief on Work of Comparable Character Job descriptions should:
Be documentedBe up-to-dateBe accurateBe sufficiently detailed Reflect scope of jobJustify pay discrepanciesIdentify physical demands (in case of ADA or WC questions)Consider compensation bands for job categoriesConsider compensation bands for work of a comparable character (even if across multiple job categories)
Slide23Bona Fide Factors
Slide24ORS 652.220(2): …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 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; orAny combination of the factors described in this subsection, if the combination of factors accounts for the entire compensation differential.
“Bona Fide Factors”
Slide25OAR 839-008-0015(b): A merit system that provides for variations in pay based upon employee performance as measured through job-related criteria, for example, a written performance evaluation plan or policy that measures employee performance using a set
numerical or other established rating scale, such as from “unsatisfactory” to “exceeds expectations,” and takes employees’ ratings into account in determining employee pay rates.“Merit System”
Slide26OAR 839-008-0015(d): Notwithstanding any other applicable federal, state or local laws, workplace location considerations may include, but are not limited to, the following: Cost
of living;Desirability of worksite location; Access to worksite location;Minimum wage zones; orWage and hour zones. “Workplace Location”
Slide27OAR 839-008-0015(f): Education considerations may include, but are not limited to, substantive knowledge acquired through relevant coursework, as well as any completed certificate or degree
program.“Education”
Slide28OAR 839-008-0015(g): Training considerations may include, but are not limited to, on-the-job training acquired in current or past positions as well as training acquired through a formal training program.
“Training”
Slide29OAR 839-008-0015(h): Experience considerations include, but are not limited to, any relevant experience that may be applied to the particular job.
“Experience”
Slide30Debrief on Bona Fide FactorsOAR 839-008-0015: “System” means a devised coherent, consistent, verifiable and reasonable method that was in use at the time of the alleged violation to identify, measure, and apply appropriate variables in an orderly, logical, and effective manner.
Expectation that bona fide factors account for the entire compensation differential.Use the “magic words”Merit = performance reviewFewer narrativesMore scoring?Overall score?
Slide31How, When, WhyEqual Pay Analysis
Slide32“Equal Pay Analysis”ORS 652.235: The court shall grant the motion 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 in scope in light of the size of the employer; andRelated
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 the motion filed under this section, 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, but may not award compensatory or punitive damages.
Slide33StepsMaximize confidentiality and privilege
Decide how much will be done internally v. outsourcedStart with job categories and descriptionsIdentify factors in making compensation decisions Sort by position / work of comparable characterLook for outliers - Larger employers may be expected to perform a statistical analysisApply factors identified in Step 3
Correct issues or revise factors Review every three years
Slide34BOLI Says… “Eliciting protected class information is not a necessary component of conducting an equal-pay analysis
.”“BOLI encourages employers to focus on establishing which employees are performing work of a comparable character and then rectifying any pay discrepancies (not accounted for by bona fide factors in the law) without regard to protected class membership.” https://www.oregon.gov/boli/TA/Pages/FactSheetsFAQs/PayEquity.aspx
Slide35BOLI Also Says…“Some provisions in the new law, like that which restrict court awards of compensatory and punitive damages against employers that perform pay-equity analyses, are outside BOLI’s jurisdiction and are not covered by these
rules. BOLI has no rulemaking authority over these analyses, and the legislature was silent on how they should be conducted. With no clear legislative intent and no jurisdiction to oversee these analyses, this was not an appropriate area for rulemaking by BOLI.”Statement from BOLI to Rulemaking Advisory Group and Interested Parties
Slide36Implementing The FixesConsult with counsel on timing and messaging
Fix compensation packages prospectivelyPay freezes are ok; pay cuts are not ok Two years of back pay?Collective Bargaining Agreement Conflicts -Mandatory subject of bargainingHandle demands carefully
Slide37Andrew SchpakBarran Liebman LLP
(503) 276-2156aschpak@barran.comThank You!