The equal-pay self-evaluation

It is the self-evaluation process Act 16-2017 recognises for employers, and the Uniform Guidelines the Secretary of Labor approved to govern those programmes. The self-evaluation may be designed by the employer or by a third party, and must have reasonable detail and coverage and clear short-term goals, taking into account the employer’s size and economic resources.

It is for the employer — any of those Act 16-2017 defines, including the Government, its public corporations and municipalities — wishing to review its compensation practices. It also serves the employee who wants to understand what their employer is doing when it announces a pay audit, and what the Act demands of the result.

• That the self-evaluation was completed or begun in good faith within the year before the pay claim was filed.Verified against the official source
• That reasonable progress was achieved in eliminating sex-based pay differences.Verified against the official source
• That the programme have reasonable detail and coverage and set clear short-term goals, considering the employer’s size and economic resources.Verified against the official source

• The job classification plan, with minimum requirements and minimum and maximum compensation, and the rubric for the value of each additional competency.
• The job application forms and the interview question manual, to confirm they do not ask for current salary or salary history.
• Internal manuals and regulations, to remove practices not fitting Acts 16 and 61 of 2017 and to include the right to discuss pay without retaliation.

1. 1

   Step 1: Understand what the self-evaluation gives you — and what it does not

   Article 3 of Act 16-2017 is precise: the employer is released from the additional penalty "and not from paying the amount the employee discriminated against in pay by reason of sex failed to earn". That is, the self-evaluation can remove the penalty that doubles the bill, never the back pay. And there is a further limit: the Act warns the employer is not deemed exempt merely by complying with the Secretary’s guidelines.

2. 2

   Step 2: Start with recruitment

   The Guidelines put it first because that is where most failures happen. The employer may not, itself or through an agent or representative, inquire about an applicant’s current salary or salary history: not in the application, not in the interview, not at any other stage, directly or indirectly. It may only ask or confirm after negotiating the salary and making an offer. And if the applicant volunteered the information, the employer may confirm it, but the Guidelines clarify that to count as voluntary the disclosure must be free of coercion, intimidation or any deceptive means.

3. 3

   Step 3: Review the classification plan and put numbers on it

   The Guidelines recommend a classification plan with each post’s minimum requirements and its minimum and maximum compensation, and — this is the useful part — a rubric establishing the added value of competencies employees hold beyond those minimums, with an incremental factor per additional competency, so that pay is derived objectively or mathematically and subjectivity is removed. As criteria for raising pay, the Guidelines mention seniority or merit and education, training or experience reasonably related to the specific job.

4. 4

   Step 4: Post the plan where people will see it

   The Guidelines suggest the classification plan be easily available to all employees without requiring registration: displayed in an area where people regularly gather — the lunchroom, the recreation area, the notice board — or emailed to the whole staff. They make the same recommendation for the distribution of bonuses and additional compensation.

5. 5

   Step 5: Bonuses, with metrics or with review

   If the employer gives additional compensation the law does not require, the Guidelines ask for an entirely objective system measurable with data: quantity of production, sales, earnings or savings; quality of production; attendance at training or studies. And they set the test for hard cases: where the bonus depends on the employer’s will, or is negotiated case by case, one must assess whether a group of workers of a particular sex doing comparable work benefits proportionately more than another.

6. 6

   Step 6: Internal manuals

   Within the self-evaluation, the Guidelines prioritise reviewing internal manuals and regulations to remove practices, requirements or provisions that do not fit Acts 16 and 61 of 2017, and to include the new rights — among them discussing pay and compensation without fear of retaliation. They further suggest the revised manual set out the procedure for an employee to file an equal-pay claim.

7. 7

   Step 7: If the study finds inequality

   The Guidelines settle it in one paragraph: if on concluding the self-evaluation the employer determines it does not pay equally for comparable work, solely by reason of sex, it must take timely affirmative steps to eradicate that inequality. And they repeat Article 3’s limit: it may not do so by affecting any employee’s salary conditions.

8. 8

   Step 8: What happens to the self-study papers

   The Act protects them partially: no document relating to a self-evaluation programme or to remedial actions taken under it shall be admissible to prove a violation of this Act or of any sex-based pay discrimination law, as to events occurring before the evaluation was completed, or within the six months after completion, or within the year after if the employer shows it developed and began executing in good faith a plan to resolve those differences. And it adds what protects the employer that did not do one: no negative inference shall apply for not having established or completed a self-evaluation.

There is nowhere to file the self-evaluation: it is an internal process the employer may design itself or commission from a third party. The Uniform Guidelines are published by the Department of Labor and Human Resources in its labour library. If the Equal Pay Compliance Certification is also of interest, that goes through DTRH’s Pay Equity Programme and has its own guide.

• Believing the self-evaluation erases back pay: it only releases from the additional penalty.
• Thinking compliance with the Secretary’s Guidelines is enough, when the Act expressly says it is not.
• Asking salary history "just for reference" in the application or the interview.
• Building a bonus system with no metrics and no review of whether one sex benefits proportionately more.
• Keeping the classification plan in a file nobody can reach, instead of publishing it.
• Correcting inequality by cutting someone’s pay, which is exactly what the Act forbids.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  www.trabajo.pr.gov

• Act 16-2017, Puerto Rico Equal Pay Act (Article 3)

  dtrh

  www.trabajo.pr.gov