Equal pay: Act 16-2017

It is Act No. 16 of 8 March 2017, the "Puerto Rico Equal Pay Act": the statute banning pay discrimination by sex in comparable work, declaring certain recruitment and pay-silence practices illegal, and setting the remedies and the term to claim.

It protects every employee who works for an employer and receives compensation, and also job applicants as regards the illegal recruitment practices. The definition of employer is very broad: any natural or juridical person, for profit or not, the Government of Puerto Rico including its three branches, its agencies and public corporations, and municipal governments, plus their agents, officers, administrators, foremen, supervisors or representatives.

• That the work be comparable: the Act defines it as having equal function and requiring equal skill, effort and responsibility under similar working conditions.Verified against the official source
• That the pay difference be by reason of sex and not one of the four exceptions the Act lists.Verified against the official source
• Claiming within one year from when you learned of the violation, under Article 9.Verified against the official source

• Whatever documents your pay and that of the comparable work, if you have it: pay stubs, offer letters, job descriptions or the employer’s classification plan.
• A record of the illegal practice, if there was one: the application form asking for salary history, the policy forbidding pay discussions, or the retaliatory communication.

1. 1

   Step 1: What exactly is banned

   Article 3 says no employer shall discriminate in pay by reason of sex against employees working in Puerto Rico who perform comparable work, unless the difference is due to a bona fide seniority or merit system; a compensation system based on quantity or quality of production, sales or earnings; education, training or experience reasonably related to the specific job; or any other reasonable factor other than the person’s sex. Those four exceptions are the ground on which cases are fought.

2. 2

   Step 2: They cannot fix it by cutting the other person’s pay

   The Act says it expressly: when the employer pays a salary in violation of this Act, it may not equalise the affected employee’s salary by reducing the pay of the employee earning more. The correction goes up, not down.

3. 3

   Step 3: They cannot ask what you used to earn

   It is an illegal practice for an employer to ask or inquire of a job applicant — or of their current or former employer — about their current salary or salary history. The Act itself provides two openings: if the applicant volunteered the information, the employer may confirm it or let the applicant confirm it; and if compensation has already been negotiated and an offer made, then it may ask or confirm. Note the order: the offer first, the question after.

4. 4

   Step 4: You may talk about your pay

   It is an illegal practice for an employer to require, as a condition of employment or of continued employment, that an employee or applicant refrain from asking, discussing, requesting or disclosing information about their own pay or that of another employee doing comparable work. The Act leaves one narrow exception: the employer may forbid disclosure by those in human resources, supervisory or managerial roles, or any employee whose job gives them access to others’ compensation, without the prior written consent of the employee whose information is sought, unless it is in a public record. And it clarifies the rest: nothing in that article obliges the employer to disclose one employee’s salary to another.

5. 5

   Step 5: Retaliation has its own penalty

   It is illegal for the employer to dismiss, threaten, discriminate or retaliate against an employee as to terms, conditions, compensation, location, benefits or privileges of employment because the employee disclosed their pay or asked about or discussed others’; objected to a practice this Act declares illegal; filed a complaint or claim under this Act in any forum; or gave or attempted to give testimony or information in an investigation against the employer. And Article 5 puts a price on it: civil liability for a sum equal to double the damages caused.

6. 6

   Step 6: What can be recovered

   An employee discriminated against in pay by reason of sex is entitled to recover, by civil action, the amount not received up to the full salary that was due, plus an equal amount as an additional penalty, along with costs, expenses and reasonable attorney’s fees. If there was also retaliation, that is the double-damages item. And there is a tax detail the Act itself fixes: the compensation received as double damages is exempt from income tax.

7. 7

   Step 7: One year, and the clock restarts with each payment

   The prescriptive term is one year from when the affected employee learns of the violation. What gives that article its force is the definition it carries: the violation occurs when the discriminatory compensation decision is adopted, when the employee becomes subject to it, or when they are affected by its application, "including each time wages are paid that result wholly or partly from the application of the discriminatory decision or practice".

8. 8

   Step 8: Whom to go to

   The Act imposes the duty of enforcing it on the Secretary of Labor and the Women’s Advocate. The Secretary may receive complaints and start investigations on their own motion, and the information gathered is confidential except to pursue a legal remedy. The Advocate must refer to the Secretary the complaints she receives about this Act. The Secretary may also sue on behalf of one or more employees, and the employee may intervene in that suit.

9. 9

   Step 9: What helps the employer, and how far

   Worth knowing because it explains answers one sometimes gets. The employer is released from the additional penalty — not from paying what you failed to earn — if it shows that within the year before the claim it completed or began in good faith a self-evaluation of its compensation practices and achieved reasonable progress in eliminating sex-based differences. The documents of that self-evaluation are inadmissible to prove violations in certain periods, and no negative inference applies against an employer that did not do one. That has its own guide here.

Before the Secretary of the Department of Labor and Human Resources, who receives complaints for violations of this Act; or before the Office of the Women’s Advocate, which must refer those complaints to the Secretary. The civil action is filed in court.

• Believing you need the same job title: the Act speaks of comparable work, not identical names.
• Answering salary history on an application without knowing that asking it is an illegal practice.
• Accepting a policy forbidding pay discussions among colleagues.
• Letting the year lapse believing the clock ran from the first paycheque, when the Act counts a violation with each payment.
• Thinking the remedy is only the shortfall: the Act adds an equal amount as a penalty, plus costs and fees.
• Forgetting that the double-damages item for retaliation is exempt from income tax.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  www.trabajo.pr.gov

• Department of Labor and Human Resources — labour library

  dtrh

  www.trabajo.pr.gov