2018 -- H 7427

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LC004265

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - FAIR EMPLOYMENT PRACTICES

     

     Introduced By: Representatives Donovan, Ruggiero, Ranglin-Vassell, Shekarchi, and
Blazejewski

     Date Introduced: February 02, 2018

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

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     SECTION 1. Legislative findings and intent. It is the intent of the general assembly to

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combat wage discrimination based on race or color, religion, sex, sexual orientation, gender

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identity or expression, disability, age, or country of ancestral origin by strengthening and closing

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gaps in existing wage discrimination laws.

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     SECTION 2. Sections 28-6-17, 28-6-18, 28-6-19, 28-6-20 and 28-6-21 of the General

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Laws in Chapter 28-6 entitled "Wage Discrimination Based on Sex" are hereby amended to read

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as follows:

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     28-6-17. Definitions.

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     As used in this chapter:

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     (a) "Age" means anyone who is at least forty (40) years of age.

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     (a)(b) "Director" means the director of labor and training.

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     (b)(c) "Employee" as used in §§ 28-6-17 -- 28-6-21 means any person employed for hire

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by any employer in any lawful employment, but does not include persons engaged in domestic

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service in the home of the employer, or employees of any social club, fraternal, charitable,

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educational, religious, scientific, or literary association, no part of the net earnings of which

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inures to the benefit of any private individual suffered or permitted to work by an employer,

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except that independent contractors or subcontractors shall not be considered employees.

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     (c)(d) "Employer" includes any person acting in the interest of an employer directly or

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indirectly.

 

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     (d)(e) "Employment" means any employment under contract of hire, expressed or

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implied, written or oral, including all contracts entered into by helpers and assistants of

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employees, whether paid by employer or employee, if employed with the knowledge, actual or

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constructive, of the employer in which all or the greater part of the work is to be performed

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within the state.

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     (f) "Wage" means all amounts at which the labor or service rendered is recompensed,

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whether the amount is fixed or ascertained on a time, task, piece, commission basis, or other

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method of calculating the amount, and includes benefits. 

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     (g) "Wage history" means the wages paid to an applicant for employment by the

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applicant's current employer and/or previous employer or employers.

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

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protected characteristics 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 pay any of its employees at a wage rate

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less than the rate paid to employees of another race or color, religion, sex, sexual orientation,

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gender identity or expression, disability, age, or country of ancestral origin for comparable work,

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when viewed as a composite of skill, effort, and responsibility, and performed under similar

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working conditions, except where the employer meets the standards set forth in subsection (b) of

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this section.

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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;

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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.

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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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     (b) A wage differential is permitted when the employer demonstrates:

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     (1) The differential is based upon one or more of the following factors:

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     (i) A seniority system; provided, however, that time spent on leave due to a pregnancy-

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related condition or parental, family and medical leave, shall not reduce seniority.

 

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      (ii) A merit system;

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      (iii) A system that measures earnings by quantity or quality of production, and the

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employer demonstrates that the system is fair, and is not being used as a pretext for an unlawful

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wage differential;

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     (iv) A bona fide factor other than race or color, religion, sex, sexual orientation, gender

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identity or expression, disability, age, or country of ancestral origin such as education, training, or

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experience. This factor shall apply only if the employer demonstrates that the factor:

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     (A) Is not based on or derived from a differential in compensation based on 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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     (B) Is job-related to the position in question; and

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     (C) Is consistent with a business necessity. For purposes of this subsection, "business

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necessity" means essential to effective job performance. This defense shall not apply if the

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employee demonstrates that an alternative business practice exists that would serve the same

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business purpose without producing the wage differential and that the employer has refused to

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adopt such alternative practice.

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     (2) Each factor is relied upon reasonably.

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     (3) The factor or factors relied upon account for the entire wage differential.

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     (c) An individual's wage history cannot, by itself, justify an otherwise unlawful wage

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differential.

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     (d) An employer who discriminates in violation of this section shall not, in order to

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comply with the provisions of this section, reduce the wage rate of any employee.

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     (e) The agreement of an employee to work for less than the wage to which the employee

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is entitled under this chapter is not a defense to an action under this chapter.

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     (f)(1) No employer shall prohibit an employee from inquiring about, discussing, or

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disclosing the wages of such employee or another employee, or retaliate against an employee who

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engages in such activities. No employer shall require an employee to enter into a waiver or other

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agreement that purports to deny an employee the right to disclose or discuss their wages. An

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employer shall not prohibit an employee from aiding or encouraging any other employee to

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exercise their rights under this subsection.

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     (2) Nothing in this subsection shall require an employee to disclose their wages.

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     (3) Nothing in this section shall be construed to limit the rights of an employee provided

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by any other provision of law or collective bargaining agreement.

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     (g)(1)  No employer shall rely on the wage history of an applicant for employment in

 

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considering them for employment, including, but not limited to, requiring that an applicant's prior

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wages satisfy minimum or maximum criteria as a condition of being considered for employment;

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     (2)  No employer shall rely on the wage history of an applicant for employment in

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determining the wages such applicant is to be paid by the employer upon hire; provided that an

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employer may rely on wage history, if it is voluntarily and without prompting provided by an

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applicant for employment, after the employer makes an offer of employment with an offer of

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wages to the applicant, to support a wage higher than the wage offered by the employer;

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     (3)   No employer shall seek from an applicant for employment or their current or former

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employer the wage history of the applicant; provided, however, that an employer may seek to

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confirm an applicant's wage history only after an offer of employment with compensation has

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been made to the applicant and the applicant has responded to the offer by providing wage history

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to support a wage higher than that offered by the employer.

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     (h)(1) An employer shall provide an applicant for employment the wage range for the

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position for which the applicant is applying upon the applicant's request or prior to inquiring

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about the applicant's wage expectations or desired wages or providing the applicant an offer of

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compensation, whichever comes first. An employer shall provide an employee the wage range for

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the employee's job title and for comparable jobs upon hire and, thereafter, annually and upon

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request.

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     (2) The department of labor and training shall promulgate regulations and guidance to

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employers for determining the information to be provided pursuant to subsection (h)(1) of this

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section, which shall include definitions for "wage range" and "comparable jobs."

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     (i) No employer shall discharge or in any other manner discriminate or retaliate against

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any applicant for employment or employee because the applicant or employee has opposed a

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practice made unlawful by this chapter or because the applicant or employee has made a charge

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or filed any complaint to the employer, the director of labor and training, or any other person,

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under or related to §§ 28-6-17 through 28-6-21, or instituted or caused to be instituted any

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investigation, proceeding, hearing, or action under or related to §§ 28-6-17 through 28-6-21, or

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has testified or is planning to testify, or has assisted, or participated in any manner in any such

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investigation, proceeding, or hearing under §§ 28-6-17 through 28-6-21. No employer shall

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coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on

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account of their having exercised or enjoyed, or on account of their having aided or encouraged

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any other individual in the exercise or enjoyment of, any right granted or protected by §§ 28-6-17

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through 28-6-21.

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     (j) 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 based

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

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country of ancestral origin, shall be null and void.

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     (k) Posting of statutory provisions. Every employer subject to this chapter shall post in a

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conspicuous place or places on its premises a notice to be prepared or approved by the director,

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which shall set forth excerpts of this chapter and any other relevant information which the

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director deems necessary to explain this chapter. Any employer who does not comply with the

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provisions of this section shall be punished by a fine of not less than one hundred dollars ($100)

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nor more than five hundred dollars ($500).

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     (l) Every employer shall keep a true and accurate record of hours worked and wages paid

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each pay period to each employee in a form prescribed by the director. The employer shall keep

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the records on file for at least three (3) years after the entry of the record.

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     28-6-19. Enforcement of provisions.

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     (a) The director of labor and training shall have the power and it shall be his or her duty

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to carry out the provisions of §§ 28-6-17 -- 28-6-21.

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     (b) In carrying out these provisions, the director shall have the same powers and duties as

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found under chapter 14 of title 28 to investigate, inspect, subpoena, and enforce through

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administrative hearings complaints.

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     (c) The director shall be entitled to the same rights and remedies as found under chapter

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14 of title 28 for an employer's effort to obstruct the director and authorized representatives in the

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performance of their duties or for any person's failure to comply with any lawfully issued

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subpoena, or subpoena duces tecum, or on the refusal of any witness to testify to any matter

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regarding which they may be lawfully interrogated.

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     (d) An applicant for employment, employee, or former employee, for and on behalf of

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themselves and other similarly situated individuals, or any organization representing such an

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applicant, employee, or former employee, aggrieved by a violation of § 28-6-18 may file a

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complaint with the director of labor and training.

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     (e) The department of labor and training and the commission for human rights shall

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cooperate in the investigation of charges filed under this section when the allegations are within

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the jurisdiction of both agencies.

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     (f) All claims under this chapter must be filed with the director within three (3) years

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after the discriminatory practice declared unlawful by § 28-6-18. A discriminatory practice occurs

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when a discriminatory compensation decision or other practice is adopted, when an individual

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becomes subject to a discriminatory compensation decision or other practice, or when an

 

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individual is affected by application of a discriminatory compensation decision or other practice,

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including each time wages, benefits, or other compensation is paid, resulting in whole or in part

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from such a decision or other practice.

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     (g) For a violation of § 28-6-18(a) through (e), an aggrieved party shall be entitled to

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recover any unpaid wages and/or benefits; compensatory damages; liquidated damages in an

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amount up to three (3) times the amount of unpaid wages and/or benefits owed, exclusive of

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interest; and where the aggrieved party demonstrates that the employer acted with malice or

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reckless indifference, punitive damages as may be appropriate; as well as an award of appropriate

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equitable relief, including reinstatement of employment, fringe benefits and seniority rights, and

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reasonable attorneys' fees, expert fees and other litigation costs.

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     (h) For a violation of § 28-6-18(f) through (j), an aggrieved party shall be entitled to

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recover any compensatory damages; special damages not to exceed ten thousand dollars

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($10,000) where the aggrieved party demonstrates that the employer acted with malice or reckless

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indifference, punitive damages as may be appropriate; other equitable relief as may be

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appropriate; and the costs of the action and reasonable attorneys' fees. If special damages are

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available, an aggrieved party may only recover compensatory damages to the extent such

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damages exceed the amount of special damages.

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     28-6-20. Civil liability of employer for sex differential -- Actions. Civil liability of

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employer for unlawful wage differential -- Actions.

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     An employer who violates the provisions of § 28-6-18 shall be liable to the employee or

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employees affected in the amount of their unpaid wages, and in an additional equal amount of

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liquidated damages. An action to recover the liability may be maintained in any court of

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competent jurisdiction by any one or more employees for and in behalf of himself or herself or

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themselves and other similarly situated employees. At the request of any employee paid less than

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the wage to which he or she is entitled under §§ 28-6-17 -- 28-6-21, the director of labor and

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training may take an assignment of the wage claim in trust for the assigning employee and may

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bring any legal action necessary to collect the claim, and the liquidated damages provided for

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above. The director of labor and training shall not be required to pay the filing fee or other costs

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in connection with the action. The director of labor and training shall have the power to join

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various claimants against the employer in one cause of action.

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     (a) Any applicant for employment, employee, or former employee, for and on behalf of

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themselves and other similarly situated individuals, or any organization representing such an

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applicant, employee, or former employee, aggrieved by a violation of § 28-6-18 may file a civil

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action in any court of competent jurisdiction to obtain relief. A civil action under this chapter

 

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must be filed within three (3) years after the discriminatory practice declared unlawful by § 28-6-

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18. A discriminatory practice occurs when a discriminatory compensation decision or other

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practice is adopted, when an individual becomes subject to a discriminatory compensation

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decision or other practice, or when an individual is affected by application of a discriminatory

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compensation decision or other practice, including each time wages, benefits, or other

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compensation is paid, resulting in whole or in part from such a decision or other practice.

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     (b) For a violation of § 28-6-18(a) through (e), an aggrieved party shall be entitled to

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recover any unpaid wages and/or benefits; compensatory damages; liquidated damages in an

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amount up to three (3) times the amount of unpaid wages and/or benefits owed exclusive of

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interest; as well as an award of appropriate equitable relief, including reinstatement of

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employment, fringe benefits and seniority rights, and reasonable attorneys' fees, expert fees and

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other litigation costs; and where the aggrieved party demonstrates that the employer acted with

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malice or reckless indifference, punitive damages as may be appropriate.

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     (c) For a violation of § 28-6-18(f) through (j), an aggrieved party shall be entitled to

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recover any compensatory damages; special damages not to exceed ten thousand dollars

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($10,000); other equitable relief as may be appropriate; the costs of the action and reasonable

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attorneys' fees; and where the aggrieved party demonstrates that the employer acted with malice

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or reckless indifference, punitive damages as may be appropriate. If special damages are

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available, an aggrieved party may only recover compensatory damages to the extent such

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damages exceed the amount of special damages.

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     (d) An aggrieved applicant for employment, employee, or former employee may not file

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a civil action under this section if they had also filed a complaint with the director of labor and

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training and the director has issued notice of an administrative hearing pursuant to § 28-6-19.

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     (e) The filing of a civil action under this section shall not preclude the director of labor

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and training from investigating the matter and/or referring the matter to the attorney general.

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     28-6-21. Penalty for violations. Civil Penalty for violations.

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     Any employer who violates any provision of §§ 28-6-17 -- 28-6-21, or who discharges or

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in any other manner discriminates against any employee because the employee has made any

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complaint to his or her employer, the director of labor and training, or any other person, or

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instituted or caused to be instituted any proceeding under or related to §§ 28-6-17 -- 28-6-21, or

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has testified or is about to testify in any proceeding, shall, upon conviction, be punished by a fine

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of not more than two hundred dollars ($200) or by imprisonment for not more than six (6)

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months, or by both fine and imprisonment.

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     (a) Any employer who violates § 28-6-18(a) through (e), in addition to any other relief to

 

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which any department or any aggrieved party may be entitled for such a violation, shall be liable

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for a civil penalty in an amount up to three (3) times the amount of the total wages found to be

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due, exclusive of interest, which shall be payable directly to the aggrieved party. The order may

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further direct that an administrative penalty be paid to the department of labor and training in the

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amount up to one time the amount of the total wages found to be due.

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     (b) Any employer who violates § 28-6-18(f) through (j) or (l), shall, in addition to any

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other relief to which any department or any aggrieved party may be entitled for such a violation,

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be liable for a fine of not more than:

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     (i) Two thousand five hundred dollars ($2,500) for a first violation;

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     (ii) Three thousand dollars ($3,000) for a second violation; and

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     (iii) Five thousand dollars ($5,000) for a third or subsequent violation.

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     (c) In determining the amount of any penalty imposed under this section, the director or

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the court shall consider the size of the employer's business, the good faith of the employer, the

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gravity of the violation, the history of previous violations, and whether or not the violation was an

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innocent mistake or willful.

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     (d) At the request of any party aggrieved by a violation of § 28-6-18, the director of labor

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and training may take an assignment of the claim in trust for the assigning aggrieved party and

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may bring any legal action necessary to collect the claim, and the damages provided for above.

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The director of labor and training shall not be required to pay the filing fee or other costs in

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connection with the action. The director of labor and training shall have the power to join various

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claimants against the employer in one cause of action.

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     SECTION 3. 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 - FAIR EMPLOYMENT PRACTICES

***

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     This act would provide protections against employer imposed wage differentials based

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

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age, or country of ancestral origin of the employee. The act would also provide that where wage

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differentials do exist, employers must justify said differentials based on bona fide factors other

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

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or country of ancestral origin. The act would further provide that an aggrieved party shall be

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entitled to recover any unpaid wages and/or benefits, compensatory damages, and liquidated

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damages in an amount up to three (3) times the amount of unpaid wages and/or benefits owed, an

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award of appropriate equitable relief, including reinstatement of employment, fringe benefits and

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seniority rights.

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     This act would take effect upon passage.

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