While many Rhode Islanders were spending time at their favorite beach this summer, the General Assembly was busy significantly amending three employment laws. First, the legislature overhauled Rhode Island’s equal pay law to expand its protections while providing employers with additional defenses to an equal pay claim. Second, Rhode Island amended its whistleblower law to broaden the scope of activity it protects and to authorize the recovery of treble damages. Finally, the legislature extended, beginning in 2022, temporary caregiver leave for Rhode Island employees. This Insight explains what this legislative activity means for employers and how they can bring their practices into compliance with the amended laws.
EXPANDED EQUAL PAY PROTECTIONS & EMPLOYER RESPONSIBILITIES
On July 6, 2021, Rhode Island amended its Wage Discrimination Based on Sex law (R.I. Gen. Laws § 28-6-17–§ 28-6-21) in seven key respects. Specifically, the amendments, which take effect on January 1, 2023, expand the scope of the equal pay law’s protections to various characteristics in addition to sex; provide for additional scenarios where wage differentials are permissible; prohibit employers from asking about an applicant’s wage history; enact pay transparency requirements; create a “safe harbor” defense for employers that have audited their pay practices and remedied any disparities; prohibit retaliation against employees for exercising their rights under the law; and require employers to post a notice of employees’ rights under the law.
Effective January 1, 2023, Rhode Island’s equal pay law will extend from protecting sex alone to also prohibiting wage differentials based on race, color, religion, sexual orientation, gender, gender identity or expression, disability, age, and country of ancestral origin for “comparable work.” Under the amended statute, “comparable work” means “work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions.” Whether two jobs are comparable turns on “an analysis of the jobs as a whole,” and “[m]inor differences in skill, effort, or responsibility” will not undermine comparability.
While the current version of Rhode Island’s equal pay law contains only four limited exceptions, the new law contains eight exceptions—including a broad, catchall exception modeled largely on “business necessity” defense of Title VII of the Civil Right Act of 1964 (“Title VII”) to disparate impact claims—permitting wage differentials if they are the result of the following:
- “A seniority system; provided, however, that time spent on leave due to a pregnancy related condition or parental, family and medical leave shall not reduce seniority.”
- “A merit system.”
- “A system that measures earnings by quantity or quality of production.”
- “Geographic location when the locations correspond with different costs of living, provided, that no location within the state of Rhode Island will be considered to have a sufficiently different cost of living.”
- “Reasonable shift differential, which is not based upon or derived from a differential in compensation based on [a protected] characteristic.”
- “Education, training, or experience to the extent such factors are job-related and consistent with a business necessity.”
- “Work-related travel, if the travel is regular and a business necessity.”
- “A bona fide factor other than [a protected] characteristic . . . which is not based upon or derived from a differential in compensation based on [a protected] characteristic . . . which is job-related with respect to the position in question; and which is consistent with business necessity.” Like Title VII’s “business necessity” defense, an employer will not be able to rely on this exception “if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential and that the employer has refused to adopt such alternative practice.”
In an effort to prevent past disparities from influencing future compensation decisions, the amended law prohibits employers from asking about an applicant’s salary history and from relying on an applicant’s wage history when considering the individual’s candidacy. But after making an offer of employment, an employer may consider and seek to confirm the applicant’s “wage history” but only for the limited purpose of “support[ing] a wage higher than the wage offered by the employer, if wage history is voluntarily provided by the applicant for employment, without prompting from the employer. . . .”
Joining the growing number of states that have enacted pay transparency laws, Rhode Island amended its equal pay law to require or encourage four disclosures of wage information. First, upon request, employers must provide applicants with the wage range of the position for which they have applied. Second, employers “should” provide an applicant with the wage range for the position under consideration “prior to discussing compensation.” Third, whenever employees are hired or move into a new position, the employer must provide them with the wage range for their position. Finally, if employees request the wage range for their position at any time during their employment, the employer must provide them with that information.
“Safe Harbor” Affirmative Defense
Similar to other states’ equal pay laws, the amended law provides a “safe harbor” affirmative defense for an employer that voluntarily conducts a good-faith audit of its pay practices to identify any violations and remedies any identified issues within 90 days of completing the audit. For this defense to be successful, the employer must have completed the audit within the past two years and before the commencement of the legal action at issue. While an employer may use its own evaluation form to conduct this audit, the Department of Labor and Training (“DLT”) will issue a standard evaluation form employers may use.
Under the amended equal pay law, employers are prohibited from retaliating against employees for discussing their wages, participating in any proceeding under the equal pay law, or opposing unlawful practices under the equal pay law.
Finally, employers must post a notice issued by DLT explaining employees’ rights under the amended law in a conspicuous place on its premises.
EXPANDED WHISTLEBLOWER PROTECTIONS & REMEDIES
On July 13, 2021, the Rhode Island Whistleblowers’ Protection Act, R.I. Gen. Laws § 28-50-1–§ 28-50-9 (“RIWPA”), was amended (by 2021-H 5855 and 2021-S 0550) in four ways. First, the amendments expressly extend whistleblower protections to “applicants” and “prospective employees.” Second, under the amended RIWPA, the definition of “adverse action” includes “report[ing] or threaten[ing] to report an employee’s immigration status to Immigration and Customs Enforcement (ICE) or any other immigration agency or law enforcement agency including local and state police.” Third, while the RIWPA contained a posting requirement before the amendments, employers now must post the required notice in a “prominent location” and “in all languages known to be spoken by employees.” Finally—and most importantly—the amended law amplifies the damages available to aggrieved employees by allowing them to recover treble damages for a violation of the RIWPA.
EXPANDED CAREGIVER BENEFITS
Finally, effective January 1, 2022, employees will be eligible for an additional week of temporary caregiver benefits under Rhode Island’s Temporary Caregiver Insurance law, R.I. Gen. Laws § 28-41-34 –§ 28-41-36, for a total of five weeks in a benefit year. On January 1, 2023, this amount will increase again to six weeks in a benefit year.
WHAT RHODE ISLAND EMPLOYERS SHOULD DO NOW
In light of this flurry of legislative activity, Rhode Island employers should take the following steps to comply with—and mitigate potential risk under—the amended equal pay, whistleblower, and temporary caregiver laws:
Equal Pay Law
- Consider working with legal counsel to conduct a privileged audit of pay practices and to develop strategies for remedying any potential disparities.
- Consider training managers on the pay transparency requirements, wage history restrictions, and retaliation prohibitions to avoid potential claims.
- Post the required notice promptly in a place where employees are likely to see it. For remote workforces, consider posting the notice on the company’s intranet and distributing copies to employees by mail and email.
- Consider training managers on the requirements of the whistleblower law to reduce the risk of costly whistleblower claims.
- Consider working with managers to determine the languages employees speak, and post updated whistleblower notices in those languages. As with the equal pay notice, for remote workforces, consider posting the notice on the company’s intranet and sending physical and electronic copies to employees.
- Consult with counsel on whether to revise the company’s existing whistleblower compliance program—or if the company does not have such a program, work with counsel on implementing one—to reflect changes to the law and to ensure its protections are robust to mitigate the risk of treble damages.
Temporary Caregiver Leave
- Consider informing managers of the expanded leave benefits available to employees.
- Review and revise leave policies to reflect the additional amount of time available to caregivers.
Ashley Krezmien, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Boston office, also contributed to the preparation of this Insight.