2017 -- H 6111

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LC002382

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - UNLAWFUL EMPLOYMENT

PRACTICES

     

     Introduced By: Representatives Perez, McKiernan, Almeida, Williams, and Slater

     Date Introduced: April 13, 2017

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 28-5-7 of the General Laws in Chapter 28-5 entitled "Fair

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Employment Practices" is hereby amended to read as follows:

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     28-5-7. Unlawful employment practices.

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     It shall be an unlawful employment practice:

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     (1) For any employer:

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     (i) To refuse to hire any applicant for employment because of his or her race or color,

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religion, sex, sexual orientation, gender identity or expression, disability, age, or country of

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ancestral origin;

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     (ii) Because of those reasons, to discharge an employee or discriminate against him or her

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with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any

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other matter directly or indirectly related to employment. However, if an insurer or employer

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extends insurance related benefits to persons other than or in addition to the named employee,

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nothing in this subdivision shall require those benefits to be offered to unmarried partners of

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named employees;

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     (iii) In the recruiting of individuals for employment or in hiring them, to utilize any

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employment agency, placement service, training school or center, labor organization, or any other

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employee referring source which the employer knows, or has reasonable cause to know,

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discriminates against individuals because of their race or color, religion, sex, sexual orientation,

 

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gender identity or expression, disability, age, or country of ancestral origin;

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     (iv) To refuse to reasonably accommodate an employee's or prospective employee's

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disability unless the employer can demonstrate that the accommodation would pose a hardship on

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the employer's program, enterprise, or business; or

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     (v) When an employee has presented to the employer an internal complaint alleging

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harassment in the workplace on the basis of race or color, religion, sex, disability, age, sexual

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orientation, gender identity or expression, or country of ancestral origin, to refuse to disclose in a

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timely manner in writing to that employee the disposition of the complaint, including a

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description of any action taken in resolution of the complaint; provided, however, no other

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personnel information shall be disclosed to the complainant.

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     (2) (i) For any employment agency to fail or refuse to properly classify or refer for

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employment or otherwise discriminate against any individual because of his or her race or color,

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religion, sex, sexual orientation, gender identity or expression, disability, age, or country of

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ancestral origin; or

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     (ii) For any employment agency, placement service, training school or center, labor

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organization, or any other employee referring source to comply with an employer's request for the

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referral of job applicants if the request indicates either directly or indirectly that the employer will

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not afford full and equal employment opportunities to individuals regardless of their race or color,

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religion, sex, sexual orientation, gender identity or expression, disability, age, or country of

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ancestral origin;

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     (3) For any labor organization:

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     (i) To deny full and equal membership rights to any applicant for membership because of

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his or her race or color, religion, sex, sexual orientation, gender identity or expression, disability,

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age, or country of ancestral origin;

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     (ii) Because of those reasons, to deny a member full and equal membership rights, expel

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him or her from membership, or otherwise discriminate in any manner against him or her with

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respect to his or her hire, tenure, compensation, terms, conditions or privileges of employment, or

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any other matter directly or indirectly related to membership or employment, whether or not

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authorized or required by the constitution or bylaws of the labor organization or by a collective

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labor agreement or other contract;

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     (iii) To fail or refuse to classify properly or refer for employment, or otherwise to

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discriminate against any member because of his or her race or color, religion, sex, sexual

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orientation, gender identity or expression, disability, age, or country of ancestral origin; or

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     (iv) To refuse to reasonably accommodate a member's or prospective member's disability

 

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unless the labor organization can demonstrate that the accommodation would pose a hardship on

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the labor organization's program, enterprise, or business;

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     (4) Except where based on a bona fide occupational qualification certified by the

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commission or where necessary to comply with any federal mandated affirmative action

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programs, for any employer or employment agency, labor organization, placement service,

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training school or center, or any other employee referring source, prior to employment or

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admission to membership of any individual, to:

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     (i) Elicit or attempt to elicit any information directly or indirectly pertaining to his or her

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race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or

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country of ancestral origin;

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     (ii) Make or keep a record of his or her race or color, religion, sex, sexual orientation,

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gender identity or expression, disability, age, or country of ancestral origin;

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     (iii) Use any form of application for employment, or personnel or membership blank

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containing questions or entries directly or indirectly pertaining to race or color, religion, sex,

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sexual orientation, gender identity or expression, disability, age, or country of ancestral origin;

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     (iv) Print or publish or cause to be printed or published any notice or advertisement

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relating to employment or membership indicating any preference, limitation, specification, or

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discrimination based upon race or color, religion, sex, sexual orientation, gender identity or

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expression, disability, age, or country of ancestral origin; or

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     (v) Establish, announce, or follow a policy of denying or limiting, through a quota system

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or otherwise, employment or membership opportunities of any group because of the race or color,

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religion, sex, sexual orientation, gender identity or expression, disability, age, or country of

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ancestral origin of that group;

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     (5) For any employer or employment agency, labor organization, placement service,

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training school or center, or any other employee referring source to discriminate in any manner

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against any individual because he or she has opposed any practice forbidden by this chapter, or

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because he or she has made a charge, testified, or assisted in any manner in any investigation,

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proceeding, or hearing under this chapter;

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     (6) For any person, whether or not an employer, employment agency, labor organization,

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or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to

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be an unlawful employment practice, or to obstruct or prevent any person from complying with

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the provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly or

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indirectly to commit any act declared by this section to be an unlawful employment practice;

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     (7) For any employer to include on any application for employment, except applications

 

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for law enforcement agency positions or positions related to law enforcement agencies, a question

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inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been

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arrested, charged with or convicted of any crime; provided, that:

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     (i) If a federal or state law or regulation creates a mandatory or presumptive

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disqualification from employment based on a person's conviction of one or more specified

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criminal offenses, an employer may include a question or otherwise inquire whether the applicant

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has ever been convicted of any of those offenses; or

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     (ii) If a standard fidelity bond or an equivalent bond is required for the position for which

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the applicant is seeking employment and his or her conviction of one or more specified criminal

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offenses would disqualify the applicant from obtaining such a bond, an employer may include a

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question or otherwise inquire whether the applicant has ever been convicted of any of those

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offenses; and

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     (iii) Notwithstanding, any employer may ask an applicant for information about his or her

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criminal convictions at the first interview or thereafter, in accordance with all applicable state and

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federal laws.

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     (8) (i) For any person who, on June 7, 1988, is providing either by direct payment or by

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making contributions to a fringe benefit fund or insurance program, benefits in violation with §§

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28-5-6, 28-5-7 and 28-5-38, until the expiration of a period of one year from June 7, 1988 or if

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there is an applicable collective bargaining agreement in effect on June 7, 1988, until the

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termination of that agreement, in order to come into compliance with §§ 28-5-6, 28-5-7 and 28-5-

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38, to reduce the benefits or the compensation provided any employee on June 7, 1988, either

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directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance

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program.

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     (ii) Where the costs of these benefits on June 7, 1988 are apportioned between employers

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and employees, the payments or contributions required to comply with §§ 28-5-6, 28-5-7 and 28-

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5-38 may be made by employers and employees in the same proportion.

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     (iii) Nothing in this section shall prevent the readjustment of benefits or compensation for

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reasons unrelated to compliance with §§ 28-5-6, 28-5-7 and 28-5-38.

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     (9) For any prospective employer to inquire about a prospective employee's wage and

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salary history before an offer of employment with compensation has been negotiated and made to

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the prospective employee unless a prospective employee has voluntarily disclosed such

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information.

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     SECTION 2. Section 28-6-18 of the General Laws in Chapter 28-6 entitled "Wage

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Discrimination Based on Sex" is hereby amended to read as follows:

 

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     28-6-18. Wage differentials based on sex prohibited.

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     (a) No employer shall discriminate in the payment of wages as between the sexes or shall

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pay any female in his or her employ salary or wage rates less than the rates paid to male

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employees for equal work or work on the same operations.

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     (b) Nothing contained in this section shall prohibit a variation in rates of pay based upon

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either difference in:

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     (1) Seniority, experience, training, skill, or ability provided time spent on leave due to a

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pregnancy-related condition or protected family and medical leave shall not reduce seniority;

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     (2) Duties and services performed, either regularly or occasionally;

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     (3) The shift or time of day worked; or

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     (4) Availability for other operations or any other reasonable differentiation except

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difference in sex.; or

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     (5) Experience, training, skill, or ability.

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     (c) Except as provided in this section, any provision in any contract, agreement, or

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understanding entered into after passage of this act establishing a variation in rates of pay as

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between the sexes, shall be null and void.

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     SECTION 3. Chapter 28-6 of the General Laws entitled "Wage Discrimination Based on

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Sex" is hereby amended by adding thereto the following section:

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     28-6-20.1. Defenses.

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     (a) It shall be an affirmative defense in any action against an employer alleging a

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violation of this chapter that the employer, within the previous three (3) years and prior to the

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commencement of the action, has completed a self-evaluation of its pay practices in good faith

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and can demonstrate that reasonable progress has been made to eliminate wage differentials based

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on gender for equal work.

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     (b) An employer shall not use an employee's prior wage and salary history as a defense to

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such action.

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - UNLAWFUL EMPLOYMENT

PRACTICES

***

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     This act would prohibit an employer from inquiring about a prospective employee wage

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and salary history before an offer of employment with compensation has been negotiated. It

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would also prevent an employer from discriminating against an employee based on sex for

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seniority reasons as long as time spent by the employee on leave due to a pregnancy-related

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condition or protected family leave does not reduce that employee's seniority.

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     This act would take effect upon passage.

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