Oregon has passed additional legislation representing changes and clarification of the Oregon Equal Pay Act (effective January 1, 2020). The original law presented a number of challenges as companies began reviewing job descriptions to ensure any pay analysis accurately reflected current duties for their staff.

Permissible Factors
The Oregon Equal Pay Act defined eight permissible factors to differentiate compensation between employees who perform work "of a comparable character." The factors include a seniority system, merit system, system that measures earnings by quantity or quality of production, as well as workplace location, travel, education, training, and experience. The original requirements for “systems” were quite complex. The new rules shorten the definition to mean “a consistent and verifiable method in use at the time that a violation is alleged.”

Unionized Employers
The new rules also provide protections for employers with collective bargaining agreements (CBA), if their CBA’s clearly reference one or more of these factors. Members with employees represented by a union should review their CBA’s to determine if the language allows the employer to take advantage of this protection. If the language does not appear sufficient, the employer should consult a legal advisor as to how to proceed. UEA’s Employment and Labor Law Attorneys are available to assist with this review.

Analyzing Pay Equity
The equal pay analysis process was also amended under the new rules to provide additional protections to employers performing such analyses. Initially, these analyses were required to specifically address the protected class of the individual(s) filing a claim of pay inequity. Under the new rules, an employer’s review of practices is only required to be designed to eliminate unlawful wage differentials between all employees, regardless of protected class. Employers are also afforded protection if they make “reasonable and substantial progress toward eliminating unlawful wage differentials for the employer’s employees.”

Additional clarifications are also included:

• Wage increases made by employers in response to a pay equity audit may not be viewed as an admission of liability in a pay equity lawsuit.
  
• Employers may pay employees differently if they are on light duty related to a workers’ compensation claim or otherwise temporarily performing modified work as a result of a medical condition.

All other provisions regarding screening applicants based on current or prior compensation and mandatory posting of employee rights under the Act remain in effect.

Primary considerations for employers
Members may want to consider conducting an equal pay analysis if they have not already done so. While the new provisions are considered a “Fix” to the Pay Equity Law, Senators in the Oregon Legislature have asked BOLI to re-open the rulemaking process and additional changes in the law are expected to be announced in the coming months.

UEA Employment Law attorneys are available to assist with any questions members have related to their obligations.

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