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New Laws for Oregon Employers to Observe from the 2017 Legislative Session

HB 2005: A New Expanded Focus on Equal Pay

Now signed into law, House Bill 2005 (the “Equal Pay Act”) expands and addresses equal pay discrepancies among women, minorities, and other protected class employees.

The Equal Pay Act makes it an unlawful employment practice to:

  1. discriminate between employees on the basis of a protected class in the payment of wages or other compensation for work of comparable character;

  2. pay wages or other compensation to any employee at a rate greater than that at which the employer pays to employees of a protected class for work of a comparable character;

  3. screen job applicants based on current or past compensations; or

  4. determine compensation for a position based on current or past compensation of a prospective employee.

The Equal Pay Act lists “protected class” to mean race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. The Equal Pay Act further defines “work of a comparable character” to mean work that requires substantially similar knowledge, skill, effort, responsibility, and working conditions in the performance of work, regardless of job description or job title.

The Equal Pay Act does allow employers, however, to pay employees at differing compensation levels where the difference in compensation is based on a bona fide factor, such as: a seniority system, a merit system, quantity or quality of production, workplace locations, education, training, experience, or a combination of those factors.

Employers will also be required to post a notice of the Equal Pay Act’s requirements, and the Bureau of Labor and Industries has been asked to make available to employers a template meeting the requirements of the notice.

While passage of the Equal Pay Act received a majority of legislative votes, it will undoubtedly create some implementation and operational challenges, particularly as employers will no longer be able to ask applicants or current employees about their salary history until after the employer makes an offer of employment to the prospective employee that includes an amount of compensation.

The legislature set out an implementation timeline that employers will need to be aware of and adhere to in order to address compliance concerns. For instance, as of September 2017 (91 days following the day the Legislative Assembly adjourns), employers will no longer be allowed to seek salary history from applicants or current employees. On January 1, 2019, most of the Equal Pay Act’s provisions expanding protections and amending causes of action take effect, including requiring posted notice and making it unlawful to pay different wages, screen job applicants, or determine compensation based on an applicant’s current or past compensation. On January 1, 2024, employees will have a right of action against employers that seek an applicant’s or current employee’s salary history.

HB 3008: Adds Penalties for Employers That Compel, Coerce, or Induce Employees to Complete False Wage and Hourly Documents

Signed into law, House Bill 3008 states that an employer may not compel, coerce, or otherwise induce or attempt to induce an employee to create, file, or sign documents that contain hours of work or compensation received that the employer knows are false. This bill further provides a private cause of action for violations, allowing for an award of actual damages or $1,000 for each violation, including attorneys’ fees and costs. Importantly, the new law defines each pay period in which a violation occurs or continues to occur as a separate violation. HB 3008 becomes effective January 1, 2018.

SB 398: Requires Employers to Provide Notice to Employee of Earned Income Tax Credits

Senate Bill 398, also signed into law, requires employers to provide written notice to each employee of both state and federal earned income tax credits. The notice must (1) be in English and in the language the employer typically uses to communicate with employees; (2) be sent annually with the employee’s W-2 forms; and (3) provide website addresses for the Internal Revenue Service and the Department of Revenue where the employee can find information about state and federal earned income tax credits. SB 398 becomes effective in September 2017 (91 days after the 2017 legislative session adjourns sine die).

Take Away

Employers should immediately take steps to review their employment applications, hiring and payroll processes, and employment policies to ensure compliance with Oregon’s new laws.

Copyright 2020 K & L GatesNational Law Review, Volume VII, Number 191

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About this Author

Roman Hernandez, KL Gates Law Firm, Labor and Employment Attorney
Partner

Román Hernández is a partner in the firm’s Portland office and is a member of the labor, employment and workplace safety practice group. He has particular experience in the defense of employers against claims filed by former, current, and prospective employees for allegations of discrimination, harassment, constructive discharge, wrongful discharge, and for alleged wage and hour violations in both state and federal courts, including class action litigation. He provides general employment and labor advice to employers of all sizes related to employment policies, practices...

503-226-5776
Samuel Hernandez, KL Gates Law Firm, Labor and Employment Attorney, Portland Oregon
Associate

Samuel Hernandez is an associate in the firm’s Portland office and a member of the Labor, Employment and Workplace Safety practice group. He focuses his practice in the defense of employers against claims filed by prospective, current, or former employees for allegation of discrimination, harassment, constructive or wrongful discharge, retaliation, and wage and hour violations in both Oregon state and federal courts, including class action litigation. Mr. Hernandez provides employment advice and training to employers of all sizes. Additionally, Mr. Hernandez maintains a commercial litigation practice and regularly represents clients in state and federal court.

Achievements

  • Super Lawyers “Rising Star” in Employment & Labor, 2017
  • Oregon State Bar Litigation Section: Rising Litigator Award, 2014
  • Hispanic Metropolitan Chamber of Commerce: Leadership Award, 2014
  • Oregon Army National Guard: Bronze Star Medal, 2007
  • Oregon Army National Guard: Combat Infantry Badge, 2007
  • Oregon Army National Guard: Afghanistan Campaign Medal, 2007, 2015

Professional/Civic Activities

  • Oregon Hispanic Bar Association
    • President, March 2017 - present
    • Co-president, October 2015 - February 2017
    • Board Member, September 2010 - November 2015
  • Hispanic Metropolitan Chamber of Commerce
    • Board Member, January 2012 - present
  • Classroom Law Project
    • Board Member, December 2015 - January 2017
  • Beaverton Education Foundation
    • Board Member, March 2012 - February 2014

Speaking Engagements

  • Speaker on I-9 Compliance, “Employer Know Your Rights,” Lewis & Clark Small Business Legal Clinic, 2017
  • Presenter, Barran Liebman’s Annual Employment Law Seminar, 2016
  • Founder/Organizer/Presenter, Annual Latino Employment Law Seminar, 2013, 2015, 2016
503-226-5707