Kathryn (Katie) Grzenczyk Mantoan is Of Counsel in Orrick's Employment Law & Litigation group, working across the San Francisco and Portland offices. She focuses 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 Pay Equity 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 pay equity 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.
Oregon employers looking to evaluate their pay equity picture in 2020 should be aware of a handful of updates to the state’s equal pay law that went into effect on January 1.
Oregon overhauled its law in 2017, expanding its coverage beyond sex-based pay differentials and modifying the standard for comparators whose pay must be equal absent a legitimate business justification. SB123 makes a handful of small but potentially significant changes:
- Existing law provided that pay differentials can be justified based on a seniority system, merit system, or system that measures earnings by quantity or quality of production. The amendment adds a statutory definition of “system”: “a consistent and verifiable method in use at the time that a violation is alleged.” Correspondingly, the more onerous definition of “system” that had appeared in OAR 839-008-0015 was repealed.
- Existing law included a limited statutory safe harbor provision (ORS 652.235), which authorizes a motion to disallow compensatory and punitive damages in suits under the state’s equal pay law if an employer has completed a good faith “equal-pay analysis” within three years pre-suit. That provision was revised to require that a qualifying equal-pay analysis include “a review of practices designed to eliminate unlawful wage differentials.” The revision also requires an employer attempting to avail itself of the safe harbor to show that it has “made reasonable and substantial progress toward eliminating unlawful wage differentials for the employer’s employees.” The revision eliminates reference to the specific protected class asserted by a particular plaintiff and instead addresses unlawful wage differentials more generally.
- The new law provides that evidence that an employer increased an employee’s pay as a result of conducting an equal-pay analysis may not be considered as an admission of liability in an equal pay case under state law.
- The law authorizes pay differences where an employee performs modified work due to a compensable injury or medical condition, alleviating concerns employers might have had about pay disparities in such circumstances.
- Finally, the amendment expressly addresses unionized workforces, providing that pay differences can be justified if one or more of the enumerated statutory defenses is contained in a collective bargaining agreement. This amendment may represent an effort to address concerns previously expressed by Oregon employers who employ both non-unionized employees and members of unions that bargain for pay rates along with other conditions of work. But it is unclear what impact it will have given that the amended law continues to require that the pay differences be tied to one of the previously enumerated defenses.
We will continue to monitor developments and amendments in Oregon and report on them here.
This year has seen states enact a litany of laws aimed at addressing pay equity issues, chief among them salary history bans. We previously reported on these issues here, here, and here. Mid-way through 2019, more and more states continue moving full speed ahead with legislation to bar employers from asking about candidates’ prior salary during the hiring process. Since our last report on this topic, the latest newcomers in this area are Washington and New Jersey. These states (like others) have expressly justified these bans based on legislative findings that “[t]he long-held business practice of inquiring about salary history has contributed to persistent earning inequalities” (see H.B. 1696, § 3(a), 66th Leg., Reg. Sess. (Wash. 2019) (enacted)), while courts evaluating such provisions have found that “more is needed” to establish the presumed connection. See Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, 319 F. Supp. 3d 773, 797-98 (E.D. Pa. 2018). Regardless, though, these laws are now on the books and employers should be mindful of their requirements going forward. READ MORE
As readers of this blog know, pay equity laws and regulations are expanding rapidly in the U.S. at both the federal and local level, as well as internationally. And while regulatory compliance is critical and remains an area to watch (and we’ll keep covering it for you here), employers can take a short breath of relief after a recent victory in one of the key proving grounds for equal pay claims—class and collective action litigation.
On March 29, 2019, in Ahad v. Board of Trustees of Southern Illinois University, the U.S. District Court for the Central District of Illinois decertified an equal pay collective action brought by a group of female physicians. Although the plaintiff alleged that she and other female physicians were paid less than male comparators for equal or similar work under the same compensation plan, Judge Sue E. Myerscough concluded that the opt-in members of the collective action had widely varying practices, duties, and compensation structures that would require many individualized inquiries, making the case inappropriate for treatment as a collective action.
The world of professional sports has long grappled with criticism of the stark pay differences between male and female athletes – think Billie Jean King’s “equal pay for equal play” push. A recent case brought by twenty-eight players on the United States Women’s National Soccer team (WNT) against the U.S. Soccer Federation (USSF) launched the issue back to the forefront of the pay equity arena earlier this month. READ MORE
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). READ MORE
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