AN ACT CONCERNING EQUAL PAY FOR EQUAL WORK.

This bill makes several changes to the law banning employers from discriminating based solely on gender in the amount of compensation paid to employees. The bill:

1. creates a statutory definition of “equal work,”

2. expands possible employer defenses against gender wage claims,

3. permits rather than requires a court to order awards when an employer is found to violate the law,

4. extends the period to make a claim of discrimination from one to two years following a violation,

5. repeals the $ 200 fine for each wage discrimination violation or for retaliatory action against an employee bringing a gender wage complaint, and

6. expands the whistleblower protections to include those who testify or assist in a gender wage proceeding.

Under current law, the labor commissioner can initiate gender wage claims in civil court. The bill allows an employee or employees to bring civil action if the labor commissioner does not do so.

It also allows a civil action brought by an employee or employees to seek legal and equitable relief as the court deems just and proper. The labor commissioner does not have this option. Also, the bill does not allow the commissioner to seek reasonable attorney's fees and costs, as is allowed under current law. But it does allow an employee to seek attorney's fees and costs.

The bill allows a court to award back pay and compensatory and punitive damages in claims brought by either the commissioner or an employee or group of employees. Current law allows awards for back pay in claims brought by the commissioner.

The bill defines equal work as work performed by two or more employees that requires equal skill, effort, and responsibility and is performed under similar working conditions.

The bill expands the possible employer defenses against gender wage claims. Current law permits practices that recognize length of service or merit rating as a legitimate factor in determining wages. The bill adds other legitimate elements, but also limits the situations when they can be used.

The bill includes the current permitted practices (seniority or merit) and adds:

1. a system that measures earnings by quantity or quality of production and

2. a differential system based upon a bona fide factor other than sex, such as education, training, or experience.

The bill specifies that the bona fide factors are only valid if the employer shows the system is (1) not based on or derived from sex-based differential in compensation and (2) job-related and consistent with business necessity. Furthermore, the defense is not valid if the employee shows that an alternative compensation practice exists that would serve the same business purpose without producing such a pay differential and that the employer has refused to adopt such an alternative.

By law, the labor commissioner may agree to take an employee's complaint of unfair wages or may investigate a possible situation on her own initiative. The law authorizes the commissioner, or her representative, to enter workplaces to inspect payrolls, investigate employee work and operations, question employees, and take action as is reasonably necessary to determine compliance with the law.

By law, the commissioner may take a gender wage claim to civil court in an effort to seek to collect on the claim. Under the bill, the commission may bring the claim to court and, if the commissioner is not bringing a claim, the employee or group of employees may initiate a court action.

Under the bill, an employee can establish a prima facie claim of gender wage discrimination if the employee demonstrates that his or her employer discriminates on the basis of gender in paying wages to employees for equal work. The bill is not specific about what degree of evidence is necessary to establish the prima facie claim. The prima facie claim can be rebutted by the defenses for differential pay allowed under the bill.

Under the bill, the court, if it finds the employer violated the law, may award (1) back pay consisting of the difference in the employee's pay and the top wage paid to other employees who perform equal work, (2) compensatory damages, and (3) punitive damages, if the violation is found to be intentional or committed with reckless indifference to the employee's rights. If the employee or employees are pursuing the claim, the bill gives the court the option of awarding attorney's fees and costs and such other legal and equitable relief as it deems just and proper.

1. award back pay, consisting of the difference in the employee's pay and the top wage paid to other employees who perform equal work, taxable costs and reasonable attorney's fees and

2. fine the employer $ 200 for each violation.

The bill extends, from one to two years, the time to file a complaint following any violation or act that constitutes a continuing violation, such as each time wages or other benefits are paid.

1. a discriminatory compensation decision is practiced or adopted,

2. an individual becomes subject to a discriminatory decision or practice, or

3. an individual is affected by the application of a discriminatory decision or practice.

Under the bill, each time wages or other compensation are paid constitutes a new violation.

Under current law, it is a violation to discriminate against an employee who files a complaint or takes other action regarding gender wage discrimination. The bill expands the whistleblower protection to prohibit an employer from discharging, expelling, or otherwise discriminating against a person for (1) opposing a discriminatory compensation practice, (2) filing a complaint about one, or (3) assisting any proceeding regarding one.

Yea

Nay

(03/03/2009)