The Commonwealth of Puerto Rico has joined the nationwide effort to eliminate pay disparity in the workplace based on gender. Despite the prohibition against wage discrimination based on sex set forth in Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, federal laws which apply in Puerto Rico, there was still apparently a significant gap in pay between men and women performing comparable work in Puerto Rico. In an effort to rectify this situation, Governor Ricardo Rosselló signed the Puerto Rico Equal Pay Act (the “Act”) on March 8, 2017. The Act becomes effective immediately.
For employees in jobs that require substantially similar skill, effort and responsibility performed under similar working conditions, the Act prohibits wage discrimination on the basis of sex and requires employers to pay employees of different genders the same compensation or salary unless the difference in pay is based on (1) a bona fide seniority or merit based system; (2) a compensation system based on the quantity or quality of production, sales or profits; (3) differences in education, training or experience that is reasonably related to the specific work at issue; or (4) any other reasonable factor other than sex.
In addition to requiring equal pay for equal work, the Act also has a number of very employee protective provisions:
• An employer is prohibited from asking an applicant, or the applicant’s current or former employer, for the applicant’s current salary or salary history. However, if the applicant voluntarily disclosed his or her current salary or salary history, the employer may confirm the current salary or salary history with the applicant or the current or previous employer. In addition, if the compensation or salary was negotiated with the applicant and the salary is set forth in an offer of employment, the employer may thereafter confirm the applicant’s salary history;
• An employer may not, as a condition of employment, prohibit an employee or applicant from asking for, discussing, requesting or disclosing information about the employee or applicant’s compensation or salary or the compensation or salary of other employees in comparable positions. An employer may prohibit managers, supervisors, human resources employees or any other employee with access to employee wage or compensation information as part of their employment from disclosing such information without the prior written consent of the employee whose compensation information is being requested, unless that information is part of the public record; and
• An employer may not dismiss, threaten, discriminate against or otherwise subject to retaliation an employee for (1) disclosing, discussing or asking about the employee’s salary or the salary of another employee; (2) objecting to any act or practice made illegal by the Act; (3) submitting a complaint or claim under the Act in any forum; or (4) participating in any investigation concerning a violation of the Act.
An aggrieved employee may either bring a private civil action for damages or file an administrative complaint with the Puerto Rico Department of Labor and Human Resources.
Employers operating in Puerto Rico are encouraged to review their employment policies and practices to confirm compliance with the Act. Specifically, employers should review their hiring practices and application materials to ensure that prospective employees are not asked questions regarding their current salary or salary history.