Kathryn (Katie) Grzenczyk Mantoan is Of Counsel in Orrick's Employment Law & Litigation group, working across the San Francisco and Portland offices. She focuses her practice on high-stakes employment litigation, compliance counseling, and litigation avoidance measures. Her practice has a particular emphasis on complex class actions and developing areas of the law including pay equity, and she co-chairs Orrick's Equal Pay Task Force.
Katie received California Lawyer’s Attorney of the Year Award in 2016 and has been named a Northern California Super Lawyers Rising Star every year since 2013. She regularly writes and publishes on equal pay developments, and has presented on the topic to three separate state bar associations.
Katie started her career at Orrick in 2004 and returned in 2015. From 2011 to 2014, she was an associate at a litigation boutique in San Francisco where she handled employment and constitutional law matters.
As we reported last month, the Oregon Bureau of Labor and Industries (BOLI) issued proposed regulations interpreting the provisions of the new Oregon Equal Pay Act of 2017, which will become effective January 1, 2019.
On November 19, 2018, after receiving a number of comments on proposed rules BOLI filed final rules with the Secretary of State. Stakeholders that provided input on the potential impact of the rules as originally proposed ranged from large law firms and industry groups to small business owners and farmers, as well as multiple higher education institutions (including Oregon State University, Portland State University, the University of Oregon, and the Oregon Community College Association).
Some of the noteworthy changes between the proposed and final rules are that the final rules:
- Added the language “regardless of job description or job title” in the definition of “work of comparable character,” thus emphasizing that job title or written job description alone cannot establish that any two employees are (or aren’t) “substantially similar.” OAR 839-008-0000(17).
- Clarified in OAR 839-008-0005(2) what it means to “screen job applications based on current or past compensation.” In particular, the final rules narrow the scope of this language to make clear that the prohibition of “screen[ing]” in ORS 652.220(1)(c) bars only the consideration of current or past compensation to determine “a job applicant’s eligibility or suitability for employment.” By contrast, the draft rules had proposed that prohibited “screen[ing]” would include any use “to group, sort, or select [employees] at any stage of the hiring process,” or to assess “[a] current employee’s eligibility for an internal transfer, move or hire to a new position with the same employer.” This narrowing makes clear that the limits of the new prohibition on using prior pay to “screen.”
- Added “creativity” and “precision” as examples of the type of “skill” considerations to be evaluated in determining whether any two employees do, in fact, perform “work of a comparable character.” OAR 839-008-0010(1)(b).
- Eliminated language in proposed rule OAR 839-008-0010(2) that would have stated that “[m]inor differences in knowledge, skill, effort, responsibility, and working conditions will not prevent jobs from being comparable.” This change is consistent with comments submitted by a host of employers—including NFIB Oregon (a non-profit advocacy group for small businesses), the Oregon Farm Bureau, and Oregon Business & Industry—who expressed concern that the “minor differences” language could create confusion and be read to conflict with the statutory standard of “substantially similar.”
- Revised OAR 839-008-0010(2) to make clear that “[e]valuations of work of comparable character need only consider comparisons of Oregon employees.”
- Eliminated the proposed “Equal-Pay Analyses Surveys” rule.
A number of concerns expressed by commentators went unaddressed in the final rules, however. Several commenters requested, but BOLI has not yet provided, a “pay calculation” tool akin to that provided by the Massachusetts Attorney General’s Office. In addition, commentators noted that the new law includes as “protected classes” several groups on which employers may not routinely collect demographic information (e.g., sexual orientation or marital status), which make it impossible for employers to proactively monitor pay differentials across these groups which the law purports to prohibit. And a number of others asked the rules to clarify the law regarding pay differentials that may exist between employees in collective bargaining units and those outside those units, yet the final rules do not speak to the issue.
By and large, though, Oregon employers should be heartened by these changes. They eliminate some of the more problematic provisions of the rules as originally proposed and underscore the fact-specific analysis of work performed needed to determine whether employees in fact perform “work of comparable character” within the meaning of the new law.
Orrick will continue to monitor additional developments in interpreting and applying the new law as it takes effect, and to advise employers in Oregon on compliance strategies in light of the new law.
The Oregon Bureau of Labor and Industries (BOLI) has issued proposed regulations interpreting the provisions of the new Oregon Equal Pay Act of 2017, which will become effective January 1, 2019. Although the prohibition against “seek[ing]” salary history from applicants already is in effect, many of the law’s most significant provisions go into effect on January 1. READ MORE
On August 28, 2018, a judge in Los Angeles County Superior Court issued one of the first decisions – if not the first decision – on a motion to certify a putative class action under the state’s revised Equal Pay Act, Cal. Labor Code § 1197.5 (“EPA”). See Bridewell-Sledge, et al. v. Blue Cross of California, No. BC477451 (Los Angeles Sup. Ct. Aug. 28, 2018) (Court’s Ruling and Order re: Pls.’ Mot. for Class Certification). Specifically, the court denied the plaintiffs’ motion to certify classes of all female and all African American non-exempt employees of Anthem Blue Cross California and related entities. The complaint alleged both violations of the EPA, as well as discrimination in promotions and pay in violation of the Fair Employment and Housing Act (Cal. Gov. Code §12900 et. seq.).
Big Law is no stranger to providing advice on pay equity or defending pay equity lawsuits. But until recently, headlines generally featured lawsuits challenging the compensation practices of their clients, not the law firms that represented them.
In the last two years, however, Big Law has itself moved into the spotlight with a wave of pay equity suits brought by aggrieved female partners and, in some cases, female associates. To date, the number of these suits against Big Law—either pending or concluded with multi-million-dollar settlements—has reached double digits and shows no signs of slowing down. We think the details are worth a second look—particularly in light of the complicated dynamics at play in how law firm partner compensation is set. READ MORE
In a highly anticipated move, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its new compensation directive on August 24, 2018. Directive (DIR) 2018-05, Analysis of Contractor Compensation Practices During a Compliance Evaluation, replaces the Obama-era compensation guidance DIR 2013-03, Procedures for Reviewing Contractor Compensation Systems and Practices (referred to as Directive 307). OFCCP also included a list of 22 Frequently Asked Questions (FAQs) with DIR 2018-05. READ MORE
This summer, California pay data reporting bill SB 1284 appeared to be progressing quickly through the legislature, until it was tabled by the Assembly Appropriations Committee on August 16, 2018. The bill, which we reported on earlier this year, would have required employers with 100 or more employees to annually report pay data from employees’ W-2 forms for specified job types and pay bands, broken down by sex, race, and ethnicity. The bill passed the Senate, and was working its way through the Assembly, where it was amended earlier this month. READ MORE
This month, the California Senate held a hearing regarding SB 1284, which would require California employers with at least 100 employees to annually report certain demographic pay data to the Department of Industrial Relations (DIR). Notably, this bill was sponsored by Senator Hannah-Beth Jackson, who also sponsored California’s Fair Pay Act (FPA) (on which we previously reported here, here, here, and here). It was also introduced just a few short months after the Office of Management and Budget’s memo mandating a review and immediate stay of similar reporting requirements at the federal level for the Equal Employment Opportunity Commission (EEOC)’s revised EEO-1 form. The California Senate Judiciary Committee has explained that SB 1284 is “modeled closely” on the revised EEO-1 form. As a result, it suffers from similar flaws. READ MORE
Last year, we covered a Ninth Circuit panel decision which concluded that an employer may rely on prior salary information as an affirmative defense to claims under the federal Equal Pay Act (“EPA”) if “it show[s] that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as other practices.’” An en banc Ninth Circuit has now reversed the panel’s prior opinion. READ MORE