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Lately, being an Oregon employer feels like being a California one. Our part-time Oregon Legislature is passing bills that affect employers at a breakneck speed. One, the Equal Pay Act of 2017, is touted as the most expansive law of its kind in the country. Historically, California is known as the most tightly regulated state. With a full-time Legislature, California produced about 800 new laws this year. California also has a civilian labor force 11 times the size of Oregon鈥檚, according to 2017 numbers from the United States Bureau of Labor Statistics. So how are we keeping pace with our neighbor to the south when it comes to regulating employers?

Salary inquiries

With laws passed in 2017, it is illegal in both Oregon and California for employers to ask a job applicant about salary history. Unlike California鈥檚 salary history ban, Oregon鈥檚 law does not allow an employer to confirm salary history before an offer of employment, even if the applicant voluntarily discloses the information. In California, if the applicant volunteers his or her salary history without prompting, the employer can confirm and consider that history in setting future pay. In Oregon, employers must wait to make an offer of employment that includes compensation before confirming prior compensation. Both state laws prohibit an employer from using an applicant鈥檚 salary history, once known, to justify a pay disparity.

Pay equity

The California Fair Pay Act, which took effect in 2016, and the Oregon Equal Pay Act are similar in many respects. Both laws require equal pay for jobs requiring equal skill, effort and responsibility, performed under similar working conditions. In both statutes, 鈥減ay鈥� means not only base salaries, but other forms of compensation, including bonuses and commissions. Defensible reasons for differentials in pay include a seniority or merit system, as well as the employee鈥檚 work location, education, training or experience. However, most importantly, it is the employer鈥檚 burden to prove how any pay disparities are justified.

The Oregon Equal Pay Act, which goes into full effect on Jan. 1, 2019, has earned its moniker as the 鈥渂roadest鈥� for a reason. The law has a very expansive definition of 鈥減rotected class.鈥� The Oregon law prohibits pay discrimination based not only on gender, race, national origin or color, but also religion, sexual orientation, marital status, veteran status, disability or age. The California law includes classes based only on gender, race and ethnicity. The Oregon law does allow a limited safe harbor provision if the employer has completed a pay equity analysis for the relevant protected class that was reasonable in detail and in scope in light of the size of the employer, and that eliminated the wage differentials for the plaintiff.

Ban the Box

California law has now outpaced Oregon law in regard to Ban the Box. California鈥檚 2017 law makes it unlawful for an employer to include questions about an applicant鈥檚 criminal history on any employment application or inquire about the conviction history before extending conditional offer of employment. Employers in Portland might recognize this prohibition as one similar to the city鈥檚 Ban the Box rule, which also prohibits inquiries about conviction history prior to a job offer. But California鈥檚 law goes further, forbidding an employer to consider specific categories of criminal history in conducting background checks. Employers often use third parties to conduct background checks, but still need to ensure they are not receiving prohibited criminal history from those third parties.

Vacation leave

Oregon employers are not required to pay out an employee鈥檚 accrued and unused vacation pay at termination, as long as a clear employment policy establishes that expectation. However, California law continues to prohibit the use of 鈥渦se it, or lose it鈥� vacation or paid time off policies. To control unchecked vacation time accrual, employers often set caps on how many vacation or paid-time-off hours an employee may accrue. Caps are relatively unregulated in Oregon, but in California accrual ceilings must be 鈥渞easonable鈥� compared to the rate at which the employee accrues vacation or paid time off.

Harassment training

California law requires employers with 50 or more employees to provide supervisor training to prevent sexual harassment biennially (every two years). This regulation has been on the books since 2005, but a 2017 bill, SB 396, adds new required topics to that training. Effective Jan. 1, 2018, training curriculum must include practical examples to address harassment based on gender identity, gender expression, and sexual orientation. Oregon has not made harassment training mandatory, but it is a best practice to provide harassment training periodically.

Oregon鈥檚 high quality of life and comparatively low cost of doing business attracts California companies to relocate or open facilities here. Oregon employers look to California鈥檚 enormous economy and population for growth potential and qualified employees. These dynamics result in many Oregon and California companies spanning the legal divide and needing to comply with both states鈥� laws. Companies that already have employees in both states, as well as companies that are contemplating expansion along the West Coast, should mind the subtle differences between the state laws. Many of these laws apply to companies with only one employee in the state, so all employers with employees in both states should understand which laws apply.

Charlotte Hodde is an attorney with Barran Liebman LLP. She advises clients on a range of employment law issues and counsels higher education institutions on Title IX and FERPA issues.聽Contact her at 503-276-2102 or [email protected].