There’s nothing wrong with the main idea behind the Oregon Equal Pay Act of 2017, which is driven by the concept that men and women should get roughly equal pay if they’re doing work of “comparable character.”
That just makes sense in terms of fairness, but we’re not there yet, considering recent studies indicating that Oregon women still earn 79 cents for every dollar a man earns. The act, passed by the 2017 Legislature and scheduled to go into effect at the start of the year, seeks to close that gap.
But there’s a problem: The state hasn’t done nearly all the hard work required to prepare for this major piece of legislation, which has far-ranging impacts for both employees and employers. A weekend story in The Oregonian suggests that the state’s Bureau of Labor and Industries, and its lame-duck head, Brad Avakian, have been sluggish in rolling out the rules necessary to implement the law (they weren’t published until two days before Thanksgiving) and haven’t done nearly what they should have to educate employers.
“The execution of this bill did not go the way I hoped it would,” Sen. Kathleen Taylor, D-Portland, told agency members at a recent hearing of the Senate Workforce Committee, which she chairs. “This has left a lot of people rather frustrated. Unfortunately, I didn’t hear any justifiable reason why it didn’t happen earlier.”
The Oregon Equal Pay Act of 2017 expands previous state law to prohibit wage discrimination for gender and adds a number of other protected classes, including race, color, religion, sexual orientation, marital status or age. The new law applies to all forms of compensation, including benefits. An exception in the law allows employers to pay employees different amounts for comparable work if the wage disparity is a “bona fide factor” that is related to the job — a seniority system, for example, or experience or education. The act prohibits employers from screening job applicants based on current or past compensation and also bars them from obtaining the salary history of applicants.
Under the terms of the law, amounts owed to employees due to unlawful pay disparities are considered unpaid wages. Penalties for violations include liability for unpaid wages, compensatory damages, punitive damages, attorneys’ fees and the like. But employees may be able to avoid having to pay compensatory and punitive damages if they complete an equal-pay analysis within three years before an employee files a complaint with BOLI or in court.
So you can see how employers in particular might be interested in learning more about how the law will affect them — and why they’re frustrated that BOLI took so long to lay out the rules implementing the law. And there’s still confusion about some of those rules — for example, BOLI has not provided guidance on what an equal-pay analysis must include to allow a business to claim that safe harbor against compensatory and punitive damages.
The incoming head of the bureau, Val Hoyle, said that, as a result of the delayed rollout, the agency will focus for the first six months of the year on outreach and education, with an emphasis on smaller businesses, which might not even be aware of the act and may have a challenging time complying with its provisions.
That’s the proper position for Hoyle to take, and that could give businesses a bit of a breather in dealing with equal-pay complaints that are filed with BOLI. And Hoyle is right to put the agency’s focus on small businesses, which don’t have the resources that larger businesses enjoy to sort through the complexities of legislation such as the Equal Pay Act.
Legislators and other state officials love to talk about the importance of small businesses to Oregon’s economy. Which is why it’s odd that the needs of small businesses so often get buried in the state’s haste to pass and implement major changes in policy.