UO Faculty Union calls out JH for Equal Pay Act failures

From today’s union email to the bargaining unit members, here, and below with some emphasis added. Our Administration’s strategy is to apply the same argument used by Paula Barran, the lawyer they hired to fight Jennifer Freyd’s case. Explanation of that and the “bodily fluids” controversy in the posts here.

Now that I think of it, Halloween will make it a year since her lawyer threatened me with a DCMA takedown notice, here:

“The Article includes a screenshot of Ms. Barran’s profile on the Barran Liebman LLP website. Barran Liebman LLP has copyrighted the material on its site and does not grant UO Matters the right to use its copyrighted material. If Barran Liebman LLP’s copyrighted material has not been removed from the UO Matters site within five (5) days, my clients will file a DMCA Takedown Notice.”

That didn’t happen. On to the substance from UAUO:

The Oregon Equal Pay Act Isn’t Working at UO

In 2017, the Oregon Legislature passed the Oregon Equal Pay Act (OEPA). The basic intent of the law is that employees who perform comparable work for an employer should earn the same wage. The Legislature recognized that not all employees are equal and allowed that employees who perform comparable work could be paid different wages for eight “bona fide” reasons: seniority system, a merit system, a system that measures earning by quantity or quality of production (such as piece-rate), workplace location, travel (if regular and necessary for the employee), education, training, and/or experience.

Many faculty were excited about the law and the opportunity it may provide to address some of the historical inequities within departments. Anyone familiar with the history of salaries at UO recognizes that before United Academics came along – and to a lesser extent after – the system of salaries was fairly ad hoc. Not only were starting salaries individually negotiated between prospective faculty and their future department head, but merit raises were irregular, retention raises were awarded under an opaque system, and the compensation for special service duties like department head was not uniform across campus or over time. All of this led to some glaring inequities between faculty within units.

The administration was not, however, enthusiastic about the new law. While there is little doubt that the individual administrators all support the basic premise of equal pay for equal work, the law was clearly not written with academia in mind. There’s no allowance for pay differentials based on opportunity hires or to recognize exceptional service. The ability to pay retention raises under the law is deeply questionable.

Over the course of the last few years, it has become obvious that the administration has implemented a two-pronged approach to incorporating the OEPA into our compensation systems. The first prong is to delay and deny claims existing faculty make under the OEPA. The second prong is to use the OEPA to flatten and hold down the salaries of new hires.

According to the data the administration gave us in response to an information request, at least seven faculty members have filed claims under the OEPA with the administration. Of those seven, so far only one has had a successful outcome; the other six are still waiting for their investigations to conclude.

For instance, one faculty member filed a claim with the administration in November 2018. The administration determined in June of 2019 that they had one or more comparators at the university. The administration is still working on determining if any salary adjustment is required under the law. Another faculty member filed a complaint in May 2019 and heard a short time later that they had one comparator at the university. They are still waiting for the administration to determine whether the differences in salary between them and their comparator are justified according to any of the eight bona fide reasons.

More insidious than the delays, however, are the outright denials. When seeking to determine if two employees do comparable work, the administration is supposed to use a limited number of factors to determine whether two jobs are comparable. From the Oregon Bureau of Labor Industries website:

“Work of comparable character is work that requires substantially similar knowledge, skill, effort, responsibility, and working conditions in the performance of work, regardless of job description or job title.”

These are broad categories for comparison. Depending how one interprets “substantially similar,” it could be argued that all TTF or Career faculty do substantially similar work. Or faculty within a college or division. In our conversations with the administration, we have generally taken the approach that analysis as to whether faculty do comparable work is best examined at the department level, allowing for the possibility that there may be subfields within a department that make work incomparable, and there may be cases where faculty in different departments do substantially similar work.

The administration, however, has taken a different approach. We have learned that the administration believes that faculty work has to be “interchangeable” to be comparable. So, in one case, a faculty member filed a complaint under the OEPA claiming that they had a substantially similar job to two of their colleagues in their unit. They all had similar educational backgrounds and credentials, they all taught five classes a year, they all taught the same students within the unit, had the same research expectations for reviews, and all did 20% of their work as service. The administration, however, determined that the faculty member had no comparators. Their reasoning was that because the faculty member who filed the claim studied and taught in Russian and English, while their colleague researched and taught in English and another language, their work was not comparable. The administration also determined that since all three faculty members had different service assignments, they were not doing work of a comparable character.

The administration has asserted that any difference in teaching or service assignments or research agendas is indicative that work is not of comparable character. If that is how the administration proceeds with interpreting the law, then almost every tenure-track faculty member is an island unto themselves, as an exact match between two people will be very rare indeed.

While these seem very tenuous reasons to claim that the work faculty are doing is not substantially similar, they are not surprising. Every signal the administration has given about OEPA leads to the conclusion that they will interpret the law to allow them to find as few comparators as possible and make only minimal adjustments to salary after long periods of time.

Conversely, the administration seemingly has no problem invoking the OEPA when negotiating starting salaries with new faculty. We have received reports that faculty recruited to UO with hints of generous starting salaries and startup packages have later been told that the OEPA requires the administration to give all new faculty in the unit the same salary when actual offers are made. The administration also uses the OEPA to set salaries for Career faculty, asking OAs to fill out a form to justify disparities in salaries within a unit. Here, the guidance does not suggest that it is acceptable to differentiate work by different teaching or service assignments.

The administration has stressed to us that they are still figuring out how to best implement this law, but it has been three years now and it seems clear they are using the law only to justify inequities that already exist, while at the same time holding down wages for new hires.

If you were thinking of making a claim under the Oregon Equal Pay Act, please reach out to us for assistance. We have been working with faculty to help them assert their rights under the law. We also intend to make a fair implementation of the Oregon Equal Pay Act as part of our bargaining agenda. The law was intended to address inequities in salary, and the administration needs to understand that this is a priority for the faculty as well.

Bookmark the permalink.

25 Responses to UO Faculty Union calls out JH for Equal Pay Act failures

  1. Dog says:

    I rather have a lot to say on this, but I am a dog, and your readers will dismiss dog comments, so to be brief.

    this was an issue that Banavar was very concerned about and his opinion on how to handle it was not well received. Basically, I am not surprised that the UO admins have chosen to ignore this.

    In another more complicated context, its really quite unclear what equal pay means in an academic setting of teaching, research, service and idea generation.

    I personally think it’s likely bad applying the concept to academia but, dogs usually have minority opinions. (Just ask all the kewl kats)

    • Anonymous says:

      I will also add that in my department, starting salaries for new assistant professors hired during the same year have always been identical for the last 20 years. Differences accrue over time due to our highly flawed merit review system and the perception of “goodness” it engenders.

    • prof from another AAU school says:

      “In another more complicated context, its really quite unclear what equal pay means in an academic setting of teaching, research, service and idea generation.”

      I agree with you dog, and the UA memo is a very odd document for a research university, where differential accomplishment in research, mostly reflected in retention raises [ and opportunity hires],drives the big salary differentials ; that and higher adminstrators returning to the faculty ranks. Of course between field differences are also big: business vs history profs.

      Its been about 5 mos since the Freyd lawsuit appeal was heard by the court, and hopefully we should know soon [ although it can take one yr] if her trial can proceed, I suspect she will fail in this appeal. I wonder what UOM will write about that?

      • Dog says:

        what makes sense to me, is equal pay (inflation adjusted) for starting assistant professors in some department. Whether that equal salary is maintained through the future or even should be maintained is unclear.

        What makes NO sense is to try and retro fit equal pay to the variety of historical conditions that have produce, in some cases, relatively large salary differentials in the ranks.

        • uomatters says:

          Really? Suppose you have 2 equally excellent profs in your department. One works the network and gets an an outside offer and then a large retention raise from UO. The other has, say, family commitments and does not look outside – or other schools know of these commitments, or predict them from average gender differences, and don’ make offers. Do you think the second prof (more likely to be a women) should continue to be paid less than the first by UO?

          • prof from another AAU school says:

            Believe me UOM my guts are with your position. I know it very well, having lived it in my own career…In the sense of not using retention offers and having suffered accordingly. Sorry but the reality is that an outside offer[ or credible threat of one] will always be the way to higher pay, either at the school looking to hire you or your current school. Many univ admins would argue that an outside job offer is a credible signal of accomplishment, perhaps the most credible of all.
            [ or becoming provost/dean/etc and then returning to the faculty ranks does the trick too.].
            I wonder how many UO faculty even accept that differential research accomplishment OUGHT to lead to higher[=differential] pay? something pretty universal at research universities.

          • thedude says:

            Tough question. I guess I don’t think networking comes at zero cost to their professional time and personal life, then why should professor 2 get something that professor 1 worked harder to get. If it was free to get outside offers, why don’t we all get them.

          • Townie says:

            How do you think it works in the private sector (aka the real world)?

            • uomatters says:

              I’ve worked a lot of jobs in RL. In the oil fields I had a boss – Ken Rollins – who pulled a 44 on me for mouthing off. But I never had a boss who lied to my face until I got hired at UO and started dealing with university presidents. So that’s how I think it works for women and minorities, but worse.

  2. thedude says:

    How much did we pay the consultants to decide that our 1.5 percent equity pool end up a 1.25 percent ATB raise?

    Is the union just trying to keep themselves relevant given that parking is no longer an issue? And the union has done apparently nothing to shield of from admins changing whims of teaching remotely, but then remotely but synchronous (live zoom) ? Wasted prep and recorded lectures….

    • uomatters says:

      The UO Administration paid the Berkeley Consulting Group $120K to do something called a “regression analysis” of faculty pay equity by gender and race. I’m no economist, but I googled it and “regression” is a kind of statistical analysis devised a century or two ago by Sir Francis Galton, a noted British racist.
      .
      I tried to get Missy Matella, the lawyer who bargains against the union, to show me these “regressions”, but she was worried that I would criticize them, as faculty will do, and GC Kevin Reed wanted to charge me $400 for my public records request.
      .
      In any case it turns out that “regression” is so easy that even I can run them on a laptop, which I did. Same result: no statistically significant pay discrimination. While one could quibble about using t-ratios (a statistical test invented by a worker at a Dublin distillery to infer the quality of entire runs of Guinness from the small numbers of test samples the owners were willing to let him taste) to draw conclusions about an analysis that was done on the entire population in question, rather than just a sample, the confused consultant just looked scared and babbled at me when I brought this up, then presumably added in another billable hour. In the end, regression and science won the day and almost all the equity money went to ATB raises, per the CBA. Someone did email me that she got a $7 equity raise though.
      .
      As for parking, the Union has solved that problem by pushing back on the Admin’s initial proposal to require all but the most obese, sick, and old faculty to teach in person. And a pretty solid rumor from down at the faculty club is that the administration will continue to let all faculty opt out of the PLC parking nightmare, and potential death, by teaching online for Winter and Spring as well should they choose.
      .
      That said, I’m sorry you fell for that Johnson Hall ruse about recording your lectures. But the union has kept the Administration from claiming they own your recordings – at least for your fall classes.

    • Facts says:

      The directive to teach remote classes synchronously came from the Academic Council, a Senate committee, not the administration, last Spring.

  3. Anas clypeata says:

    I wonder if OAs, who don’t have tenure or union protections, would feel secure in bringing up equal pay issues. I know someone a few years ago (before the 2017 law was in place) who brought up the vastly unequal (2x) difference between their pay and the pay of multiple OAs with essentially identical (or lesser) responsibilities. The person’s managers told them “too bad”, and HR told them that pay decisions were entirely up to departments. My acquaintance was shortly thereafter that their OA contract would not be renewed at the end of the year, after a decade of good job performance reviews. That person has bad-mouthed the UO and anti-recommended it as a workplace to countless competent, qualified friends who could have made the UO a better place. I’ve never understood how the UO administration can operate as they do in such a small community. Excellence!

    • uomatters says:

      I’ believe I’ve also seen examples of this sort of pay discrimination, even though OA pay is now determined by HR, not individual units.

      • factcheck.org says:

        Units still determine OA pay, just within a defined range that is smaller than the gigantic OA bands that make no sense.

  4. Dog says:

    This is completed: Retention offers which then lead to UO internal raise which then upsets internal equity I think is difficult to fairly deal with. And the concept of 2 equally ranked excellent professors is pretty hard to prove by metric.

    What I do think in this case is there ought to some legislations/policy on the allowable
    dynamic range per rank in a dept. I know in my own dept at the
    excellent professor level – the highest paid professor(s) make about 2x the lowest paid professor (s) and I think that large of differential should be corrected- most likely by raising the salary floor.

  5. Observer says:

    “Princeton U. agrees to pay nearly $1.2 million to female professors after feds find men earned more”

    https://www.nj.com/education/2020/10/princeton-u-agrees-to-pay-nearly-12-million-to-female-professors-after-feds-find-men-earned-more.html

    I don’t know from regressions, and I don’t know if they’ve been performed within individual departments (where some inequities seem pretty glaring to me). But the UO administration’s claim that you can’t compare the job duties of faculty in the same department is the most disingenuous, cynical, transparent move I can imagine. How could we even give people tenure or promotion, if they can’t be measured by a standard that applies to all faculty in the department?

    • Dog says:

      While I agree with most of what is said in the case of gender based systematics, for the UO in particular some history is needed and
      history is responsible, partly or mostly, for current salary disparities in various departments.

      1. Faculty hired in the 1980s (not many left) were hired at a very low salary – in 1985 I was offered a Job here at a salary about 35% less than my existing salary at my other institution. I declined this particular UO job offer. Anyone that reads this blog and was hired IN this period can probably say the same thing.

      2. Measure 5 happened in 1990 – making competitive salaries even harder for the UO to manage.

      3. 1993-1995 was a state budget biennium freeze on faculty salaries (we have had about 5 more of those freezes in this time)

      4. Until the CAS mandated % raises for promotion came in, promotion salaries were laughable. When I got promoted to fall,
      my promotion salary raise was 2.3% …

      5. Similarly, in the 1990s and early 2000’s PTR raises were aslo
      relatively small (basically 2k),

      6. This is relatively long way of saying that any existing faculty hired before 2004 is historically disadvantaged by mostly external circumstances, relative to faculty hired after that. Of course, none of that group of faculty is on Tier 1, so in some integrated sense,
      things even out.

      7. Since 2014 the union raises have been relatively small (as discussed before on this blog) being less than west coast inflation rate.

      So, I think the observed differential salary gaps in departments were produced largely over the period 2004-2014.

      As for standards – Universities operate largely via a threshold standard apply for promotion and tenure. Differential standards, largely based on perceived research performance, I think have driven most salary disparity at rank.

      One final thing about equal excellence. Over the 15 period say 2005-2020, there have been full prof faculty in my department that have produced 12-15 PHDs and those that have produce 0-2 PHDs. I don’t think that = equality.

    • uomatters says:

      Thanks for sharing this. It’s notable that Princeton never made the claim that President Schill’s lawyers made – that every professor’s job was so unique that faculty were incomparable, even professors in the same department and with the same rank and career recognition etc. According to the news story, Princeton simply objected to the fact that the USDOL had lumped faculty from totally different departments together. (Or in the parlance of regression, omitted department dummy variables.)
      .
      “Princeton officials still say the federal review of the women’s pay was flawed because it didn’t take adequately take into account several factors, including a professor’s department.

      “In other words, a professor of English cannot perform the duties of a professor in the Physics department, and vice versa,” said Ben Chang, Princeton University’s spokesman.

      However, school officials agreed to settle the dispute, which began nearly a decade ago with a Labor Department compliance review of the university’s pay structure.”

  6. Consider merit sometimes says:

    Outside offers demonstrate demand for the sought after faculty, something that is obviously correlated with the quality of their work. This is too often completely overlooked by those who sanctimoniously proclaim that they never “went looking” or never “used outside offers” to improve their situation. In many cases those outside offers were not even available.

    UOmatters is correct to point out that there are some factors that can lower a person’s likelihood of getting an offer, such as common knowledge of family commitments that prevent them from moving, but to suggest that those are the only factors just sounds like sour grapes from less sought after faculty.

    • no correlation says:

      From someone very familiar with the ‘outside offer’ situation, it is just not true that they ‘correlate’ with quality. An outside offer generally requires a threshold of quality, one that is surpassed by many more than the offerees. I have seen deliberate strategic outside offer deals made by folks with their buddies at other institutions with the sole purpose of bettering their current positions. I have seen true offer overtures turned down by sincere folks because of loyalty/family/too busy to deal with it/don’t want to play the game. Not saying that a genuine threat should be ignored by the institution, but at the same time we need other mechanisms to reward and raise the salaries of those who don’t play the game.

      • Dog says:

        I mostly agree with this – my experience without side offers is similar

        a) the “buddy” situation is quite real (and possibly a game played more in the sciences)

        b)Faculty that are driven by self-promotion can market their visibility and be perceived as worth poaching. To a small extent this is correlated with quality

        c) I have received outside offers based on neither having a buddy and hopefully not much self-promotion. In those cases, I have always weighed the offer against real life. The salary difference offered (up to 2x) did not make much of a significance nor did I inform the establishment of such offers in order to seek retention. While I will not fault others for doing this, I just don’t want to.

      • anon says:

        ” Not saying that a genuine threat should be ignored by the institution, but at the same time we need other mechanisms to reward and raise the salaries of those who don’t play the game.”

        Of course.

        so NOW tell us what you think does correlate with quality?

        I really doubt that the institution trying to hire away your faculty would agree with this , or Dog’s position…as a general rule.

      • Consider merit sometimes says:

        You acknowledge that a threshold of quality is needed to garner outside offers. The fact that there are other faculty that are equal in quality is irrelevant to the question of whether those offers are motivated by quality. It seems you’d only believe this if the recruiting organization poached ALL quality faculty simultaneously? That is silly.

        Are there deals between friends that are not motivated by quality? This is surely happening in all organizations of any kind, but it does not really challenge the thesis that outside offers are typically given to faculty who would raise the quality and reputation of the hiring institution. This isn’t really that complicated. The conspiracy theory flavor of the story that outside offers are ALL driven by back room deals once again sounds like sour grapes.

        • Dog says:

          In the sciences, outside offers are frequently generated on the basis of an individual’s grant activity profile and the subsequent overhead money they bring into the institution. Since funding in sciences is highly variable per field, those quality scientists in low funded fields are often not able to receive outside offers. So, many times it is the profile being “poached” before the individual.

Leave a Reply

Your email address will not be published.