By: Maite Medero, Esq. (firstname.lastname@example.org)
Many have declared 2018 the year of women, and Puerto Rico is not out of that loop. Since last year, efforts have been made to close the still existing salary gap between men and women although both perform comparable work, under similar conditions, with the same functions and requiring the same skills, effort and responsibilities.
Toward that end, on March 8, 2017, the Equal Pay Act of Puerto Rico was enacted prohibiting employers to discriminate between employees based on sex for salary compensation. Employees or candidates for employment may recover any amount withheld by employers in violation to this law plus the double of the total amount owed as additional penalty imposed by the law, expenses and attorney’s fees.
The Act came into effect immediately after its approval but employers’ responsibility for violations will apply for the first time this month. A “forbearance” period of one (1) year was granted and included in the Act for employers to “complete or commence” a bona fide self-evaluation process to identify and correct discriminatory compensation practices.
As required by the legislators in the enactment of the law, the Department of Labor enacted guidelines to be used as reference for that self-evaluation process but their sole compliance will not be sufficient. The self-evaluation program must include reasonable detail and specific short-term goals to close the existing salary gaps considering company’s size and economic resources.
If your company did not “commence or complete” the self-evaluation process within the last year, and you have not received any employee or employment candidate claim, you might still be on time to commence one and avoid the additional penalty (not the payment of salaries withheld in violation of the law), so long as the program is commenced within the year prior to the employee’s or candidate for employment’s claim.
At the end, practices of differentiated salary between men and women will be sustained solely when they are due to:
- A seniority system;
- A merit system;
- A system which measures earning by quantity or quality of production;
- Education, trainings, or experience when they are reasonably related to the job;
- Any other reasonable factor other than sex.
This is the first year when Puerto Rico’s employers, public or private, must be ready to demonstrate that they took, or are currently taking, affirmative steps to promote a workplace free of compensatory discrimination on the basis of sex. Now the question is, are you in compliance?