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.