On May 24, 2023, Oregon Gov. Tina Kotek signed into law Senate Bill 592, which amends ORS 654.067 and ORS 654.086 to significantly increase civil penalties and expand workplace investigations for violations of Oregon’s workplace health and safety laws. Because SB 592 takes effect immediately upon passage, it is crucial for employers and business owners to understand their obligations under the law and the potential impact these changes may have on their operations.

Stricter penalties

SB 592 requires the Oregon Occupational Safety and Health Division (Oregon OSHA) to align its minimum fines for workplace safety violations with the standards set by the federal Occupational Safety and Health Administration (OSHA). Under the previous iteration of the law, the minimum adjusted fine for a serious violation under Oregon OSHA was $100, which some critics argued was not effective to deter noncompliance. Under the amended law, civil penalties for violations of Oregon OSHA’s regulations may increase by more than 1000 percent depending on the circumstances surrounding the violation.

Specifically, SB 592 establishes a tiered penalty structure based on the nature and severity of the violations. For violations that are determined to not be serious in nature, the civil penalty may be any amount that does not exceed $15,625 per violation. Meanwhile, for serious violations where there is a substantial probability of death or serious physical harm, the bill mandates penalties ranging from $1,116 to $15,625 per violation. In cases where a serious violation causes or contributes to the death of an employee, the penalty amount increases to $20,000 to $50,000 per violation.

In addition, the bill imposes stricter penalties for repeat offenders of Oregon’s workplace health and safety laws. Under SB 592, any employer that willfully or repeatedly violates these laws may be assessed a civil penalty ranging from $11,162 to $156,259 for each violation. If an employer’s willful or repeated violation causes or contributes to the death of an employee, the minimum civil penalty amount (per violation) increases to $50,000, with a maximum penalty of $250,000. Any employer that receives a citation for failure to correct a violation may also be assessed a civil penalty, not to exceed $15,625, for each day during which the violation continues. In determining whether a violation is repeated, the director must consider the employer’s history of violating the requirements of a state occupational safety or health statute or the lawful rules, standards, or orders adopted under the statute.

Civil penalties for repeated, willful, and/or serious violations resulting in a work-related fatality may not receive a reduced penalty adjustment based on employer size, unless the penalty adjustment is conditioned upon the employer agreeing to comply with additional abatement measures as determined by the Department of Consumer and Business Services (DCBS).

Expansion of inspection authority

Another significant amendment contained in SB 592 relates to the inspection authority of the DCBS director. The bill empowers the director to conduct comprehensive inspections of any place of employment based on the establishment’s violation history regarding state occupational safety and health laws. This provision aims to target establishments with a pattern of noncompliance to prevent similar violations from occurring in the future.

Under SB 592, whenever an accident investigation reveals that a violation has caused or contributed to a work-related fatality at a place of employment, the director is required to conduct a comprehensive inspection of the premises within one year following the date on which the closing conference associated with the work-related fatality was held.

Similarly, whenever three or more willful or repeated violations occur at a place of employment within a one-year period, the director must conduct a comprehensive inspection of the premises within one year following the date on which the closing conference associated with the most recent willful or repeated violation was held.

Transparency and reporting

Finally, SB 592 introduces new reporting requirements for the DCBS. Under the amended law, the director must submit an annual report to the interim committees of the Legislative Assembly related to business and labor summarizing: (a) the total number and total amount of penalties assessed by the department; (b) the total number of appeals of citations, violations and penalty assessments filed with the department; and (c) the total number of inspections completed by the department, along with the scope of the inspections and the circumstances that led to the inspections.

Conclusion

The passage of SB 592 signifies a notable shift in Oregon’s commitment to promoting workplace safety by expanding comprehensive inspections and imposing stricter civil penalties for violations. Moving forward, employers should continue to ensure strict compliance with applicable health and safety laws and stay informed of state and federal guidelines.

Marley Masser is an attorney with Barran Liebman LLP. She represents employers in a variety of workplace matters. Contact her at 503-276-2130 or mmasser@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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As shown by legislation recently enacted in California and Washington, pay transparency is proving to be a focal point for employer compliance efforts in 2022 and beyond.

Varied in scope and approach across jurisdictions, pay transparency laws strive to reduce or eliminate secrecy surrounding employees’ compensation to promote pay equity for employees belonging to historically marginalized groups. Currently, nine states have some form of pay transparency laws. While Oregon does not presently have a pay transparency law, Oregon employers with operations, employees, or job listings posted in California and Washington should take note of these forthcoming pay transparency requirements.

Accordingly, here is a discussion of key takeaways from new pay transparency laws in California and Washington as well as strategic considerations for employers as they prepare for compliance in the year ahead.

California’s pay transparency law

On Sept. 27, California Gov. Gavin Newsom signed Senate Bill 1162, thereby expanding current employer pay transparency requirements starting on Jan. 1, 2023. Under this law, California employers will have to:

• disclose pay scales in job postings. Employers with 15 or more employees must provide the salary or hourly wage rate that the employer “reasonably expects” to pay for the position in all job postings. This includes direct recruitment by the employer or indirect recruitment through a third party.
• disclose pay scales for current employees. Upon request, employers of any size must provide current employees with the pay scale for the employee’s current position.
• report compensation and equity data to the state. Private employers with 100 employees or more must report to the state the mean and median pay of their employees and pay equity data according to protected characteristics like race and gender. Based on existing guidance, employers are subject to these requirements if they have at least one employee in California. Employers should include remote employees in the pay data reports if the employees reside in California or are assigned to a California establishment (regardless of whether they reside in California).
• retain employment records: Employers must retain all records of job titles and wage history for employees throughout their employment and for at least three years after that employee’s separation from employment. Failure to comply with the records retention requirement creates a rebuttable presumption in favor of any employee bringing a pay transparency claim under the law.

Aggrieved individuals may file a complaint with the California Department of Industrial Relations (CDIR) or file a lawsuit if they believe a violation has occurred. Remedies may include injunctive relief or any relief a “court deems appropriate.” Additionally, the CDIR may assess civil penalties ranging from $100 to $10,000 per violation. However, the law provides a safe harbor for first-time violations when the employer can demonstrate that all job postings for open positions have been updated to include the required pay scale.

Washington’s pay transparency law

In March 2022, Washington Gov. Jay Inslee approved an amendment to expand pay transparency requirements under Washington’s Equal Pay and Opportunities Act, also beginning Jan. 1, 2023. Washington’s Department of Labor and Industries has since released a draft administrative policy with updated guidance on the modified pay transparency requirements. As clarified by this guidance, Washington employers will have to:

• disclose pay scales in job postings. Employers with 15 or more employees must disclose the position’s wage scale or salary range, and a general description of all benefits and other compensation to be offered, in every job posting. This includes employers without a physical presence in Washington, so long as the employer has one or more Washington-based employees. If there are multiple levels of compensation for a position, the pay scale for each level should be provided.
• disclose pay scales for current employees. For prospective or current employees offered a new position, an internal transfer to a new position, or a promotion, the employer must provide the wage scale or salary range for the new position upon request.

Aggrieved individuals may file a complaint with the Washington Department of Labor & Industries or file a lawsuit if they believe a violation of the law has occurred. Available remedies may include actual damages, double statutory damages (or $5,000, whichever is greater), interest of 1 percent per month, and payment of costs and attorneys’ fees. The WDLI may also assess civil penalties ranging from $500 for a first violation to $1,000 or 10 percent of damages for a repeat violation.

Pay transparency compliance strategies

California and Washington are just two of many states joining the national trend toward pay transparency, and for employers with operations or employees in multiple states, preparing sound compliance strategies is key. Accordingly, covered employers should:

• review employee compensation structures and ensure each position has wage scales or salary ranges in place;
• when including a compensation range in job postings, use a low and high number on each end of the scale (for example “$50,000 to $70,000” instead of “$50,000 and up”);
• conduct an internal pay equity study to evaluate current rates and identify areas for improvement;
• document and retain records of all compensation decisions;
• stay up to date with state guidelines; and
• when in doubt, seek guidance from qualified legal counsel.

Marley Masser is an attorney with Barran Liebman LLP. She can answer questions about pay equity and other employment matters. Contact her at 503-276-2130 or mmasser@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post OP-ED: How employers in Oregon can prepare for pay transparency compliance appeared first on Daily Journal of Commerce.