Puerto Rico's Equal Pay Act (Act 16-2017)

“What were you earning?” is an illegal question

Start with the question most used in interviews. **Article 4(a) of Act 16-2017** declares it an **illegal practice** for an employer to **ask or inquire of a job applicant (or of their current or former employer) about the applicant's current salary or salary history**.

Note the double reach: it is not only that they cannot ask you. They also cannot **go ask your former employer** behind your back.

The law leaves two openings, and both depend on something that happened first. **One:** if the applicant **voluntarily disclosed** that information, the prospective employer may confirm it, or let the applicant confirm it. **Two:** if **compensation has already been negotiated and a job offer made**, then they may ask, inquire or confirm the salary or history.

In practice: while they are evaluating you, the question is out of bounds; once an offer is on the table, the law allows it. And if you answer on your own (because you want to) you open the door to their confirming it.

This is not negotiating advice, it is a rule of law: if they ask you that before an offer, the one outside the law is the one asking.

They cannot forbid you from discussing your pay with coworkers

**Article 4(b)** makes it illegal for an employer to **require, as a condition of employment or of remaining employed, that an employee or applicant refrain from asking, discussing, requesting or disclosing information about their own salary, or the salary of another employee doing comparable work**.

That pay-confidentiality clause appearing in so many handbooks and contracts runs straight into this article when imposed as a condition of getting in or staying.

There is one concrete exception, and it is about roles: the employer **may forbid disclosure** by those performing **human resources, supervisory or managerial** functions, or any employee **whose work requires or allows access to compensation information**, unless there is **prior written consent** from the employee whose information is sought, or the information **is in a public record**.

And a clarification the law itself makes so nobody stretches it: **nothing in that article requires an employer to disclose one employee's salary to another**. What it protects is your right to ask, discuss and share your own; it does not create a right to be handed the payroll.

Retaliation: double damages, and tax-free

**Article 4(c)** forbids an employer from **dismissing, threatening, discriminating against or retaliating against** an employee (in the terms, conditions, compensation, location, benefits or privileges of employment) for four things: **(i)** disclosing their salary or asking about or discussing others' salaries; **(ii)** objecting to an act or practice this law declares illegal; **(iii)** filing a complaint or claim under this law **in any forum**; or **(iv)** offering or attempting to offer, orally or in writing, testimony, statements or information **as part of an investigation** against the employer for violations of this law.

The remedy is in **Article 5(2)** and it is severe: an employer who retaliates **incurs civil liability in a sum equal to double the amount of the damages** the act caused the employee.

And there is a tax detail almost nobody mentions that is worth real money: the law provides that **compensation received as the double damages under subsection 2 shall be exempt from income tax**.

Note the difference between this law's two remedies, because they are not the same: **subsection 1** is for pay discrimination (what you failed to earn plus an equal penalty); **subsection 2** is for retaliation (double the damages). They can arise from the same case and are counted separately.

The core right: equal pay for comparable work

**Article 3** is the mother rule: **no employer shall discriminate in pay by reason of sex** against employees working in Puerto Rico who **perform comparable work** with equal functions requiring equal skill, effort and responsibility **under similar working conditions**.

“Comparable work” is defined in Article 2, and the definition carries the phrase that wins cases: it is work **substantially similar in functions, effort, skill and responsibility**, performed under similar conditions, and **the job title or description, by itself, shall not be determinative** of whether work is comparable. Renaming the position does not change the comparison.

A pay difference can be lawful, but only on four listed grounds: **(i)** a **bona fide system** rewarding seniority or merit; **(ii)** a compensation system **based on quantity or quality of production, sales or earnings**; **(iii)** **education, training or experience**, to the extent those factors are **reasonably related to the specific job**; or **(iv)** any **other reasonable factor other than the person's sex**.

There is a prohibition worth knowing before they “fix” the problem: when an employer pays in violation of this law, **it may not equalize the affected employee's salary by cutting the pay of the higher-paid employee**. The correction must go up.

And mind who counts as an “employer” here, because the definition is broad: **any natural or legal person**, for profit or not, **and the Government of Puerto Rico, including its three branches, its agencies and public corporations and municipal governments**, plus their agents, administrators, supervisors and representatives. So is “salary”: **every wage, type of pay and all kinds of compensation**, in money, in kind, services, **fringe benefits** or facilities.

What you can collect, and the year that runs with each paycheck

**Article 5(1)** gives you, through a civil action, **the amount you failed to earn up to the full salary that was due you**, **plus an equal amount** as an **additional penalty**, **plus costs, expenses and reasonable attorney's fees**. Plainly: the gap, the gap again, and the fees.

If you also collect under another law for the same thing, the statute orders the adjustment: compensation received under this law (**not counting the penalty**) **is credited against any other compensation** awarded under another law for similar violations or under other employment discrimination statutes.

The deadline is in **Article 9** and is **one (1) year**, but with a starting point to read carefully: it runs **from when the affected employee becomes aware of a violation**.

And the law itself defines when a violation occurs, in three scenarios: **when the discriminatory compensation decision is adopted**; **when the employee becomes subject** to that decision or practice; or **when the employee is affected by its application, including each time wages are paid** that result, wholly or partly, from that decision or practice.

That “each time wages are paid” is the piece that keeps an old decision from being shielded by the passage of time: **each payment carrying the gap is, per the text, a violation**. Even so, do not use it as an excuse to wait: the term is one year and the date of knowledge is arguable. Document when you found out.

The employer's self-audit: it removes the penalty, not the debt

This is the part that most confuses people when the employer brings it up in a meeting. **Article 3** provides that the employer **is released from the additional penalty (but not from paying the amount not earned**) if it shows that **within the year before the claim was filed** it completed or began, **in good faith**, a **self-evaluation** of its compensation practices **and achieved reasonable progress** toward eliminating sex-based pay differences.

Read it slowly: **what falls away is the equal penalty, not the gap**. If you were underpaid, they still owe you the difference even if the company did its self-audit.

The self-audit also comes with an evidentiary shield, and it has borders: no document of the program or its remedial actions **is admissible to prove a violation** as to events occurring **before the self-evaluation was completed**, or **within six (6) months after** completing it, or **within the following year** if the employer shows it **drew up and began executing in good faith a plan** to resolve the differences. Outside those windows, the shield does not apply.

In the other direction, the law also protects the employer who did nothing: **no negative inference shall be applied** against an employer for not having established or completed a self-evaluation. Not doing one does not prove discrimination; doing one does not erase the debt.

So these programs are not each company's invention, the Secretary of Labor **prepares and distributes uniform guidelines**. They exist and are published: the **“Uniform Guidelines for the Self-Study of Pay Equality in the Workplace,”** dated **August 10, 2017**. And the law warns that **complying only with those guidelines does not automatically exempt** an employer from the penalty: the program must have reasonable detail and coverage and **clear short-term goals**, considering the employer's size and resources.

Beyond the statute, the Labor Department created a **Pay Equity Program (PES)**, with **voluntary participation**, offering a **Pay Equity Compliance Certification** to employers adopting such policies. Its regulation, the **“Regulation to Administer the Pay Equity Program,”** was **filed with the Department of State on February 13, 2020**.

Where to take this: the Secretary and the Women's Advocate

**Article 6** places the duty to enforce this law on **the Secretary of Labor and the Women's Advocate**, and authorizes him (or his representative) to **receive complaints, submissions or grievances**, and to **begin on his own initiative** the investigations, inspections and actions needed. **The information collected shall be confidential**, except to procure a legal remedy under this law.

If you knock on the Advocate's door, your case does not stay there: the law **orders her to refer to the Secretary every complaint** she receives on this subject, so he handles it and **obtains a final adjudication**. When the process ends, the Secretary **officially reports his findings** to her, and she may take further action under **Act 20-2001**, including **imposing administrative fines**.

The investigative powers are real: an employer under investigation **must produce and make available records, documents and files**; the Secretary may **hold public hearings, subpoena witnesses under threat of contempt, administer oaths, examine and copy books and records**, and **go to the Court of First Instance** to have his subpoenas or orders enforced, disobeying that judicial order **is contempt**.

And there is something that changes the math for anyone without the means to litigate: **the Secretary may sue**, on his own initiative or at the instance of one or more employees or **job applicants**, **on behalf of and for the benefit** of those in similar circumstances. You may **intervene** in that suit, and he may intervene in yours. The Court of First Instance may, at the Secretary's instance, **issue injunctions**.

Two closing notes, for precision. One: **Article 8** directs that this law be interpreted using the federal **Equal Pay Act of 1963** (29 U.S.C. § 206(d)) and its regulations as a frame of reference for similar terms, **unless this law requires a different interpretation**. Two: the text cited here is the **OGP compilation, April 15, 2024 revision**; the Labor Department publishes alongside it **Act 61-2017**, which per the document's own title requires **a pay equity policy certification to enter the RUL**; that statute was not read for this guide, so it is not explained here.

The Secretary must also file with the Legislature **an annual statistical report on July 15** on complaints filed and adjudicated, and keep a **statistical study of pay inequality updated every three (3) years**.