Although not as momentous as the 2015 session, the 2017 session also included several far-reaching changes to Oregon’s employment law statutes. Perhaps the most significant is House Bill 2005, the new “Pay Equity” statute.
HB 2005 prohibits employers from offering different pay based on certain protected classes: race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Most such discrimination is, of course, already illegal.
However, this statute goes further than simply banning discrimination. It also bans an employer from asking job applicants for information on current or past compensation. It creates a private right of action for employees and applicants if it is violated.
Employers have two important defenses under this statute. First, an employer may differentiate in compensation level based on certain “bona fide factors” such as a seniority or merit system, productivity, experience, etc. As the statute is written, the key point seems to be that the different compensation levels need to be based on a “system.” In other words, to best protect against a discrimination claim, there should be some written explanation of those factors rather than simply an ad hoc decision to pay one employee more than another based on their perceived merit or productivity.
Second, if an employer completes an “equal pay analysis” of its pay practices, in good faith, and eliminates the pay differential at issue, then the court may award only back pay and attorney fees, but not other compensatory or punitive damages.
The provision banning employers from seeking salary history is already in effect, but most provisions of the other provisions of this law do not go into effect until January 1, 2019, or later.