2018 -- H 7427 SUBSTITUTE A AS AMENDED

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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

     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, and sex, by strengthening and closing gaps in

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existing wage discrimination laws.

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

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

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follows:

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     28-6-17. Definitions.

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     As used in this chapter:

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

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

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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 in the state of Rhode Island suffered or permitted to

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work by an employer, except for independent contractors, subcontractors, temporary employees,

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seasonal employees and those not considered employees as defined in § 28-12-2.

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

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indirectly, who employs eighteen (18) or more employees and who sets the wage for the

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employee.

 

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

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

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

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of the employer in which all or the greater part of the work is to be performed within the state.

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     (e) "Equal work" means jobs that require equal skill, effort, and responsibility and are

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performed under similar working conditions.

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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, or commission basis, or other

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method of calculating the amount, and includes benefits, but shall not include gratuities as

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defined in § 28-12-5 or overtime pay as defined in § 28-12-4.1. 

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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. "Wage history" does not

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include any objective measure of the applicant's productivity such as revenue, sales, or other

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production reports.

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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, color, or gender for equal work, except where

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the employer meets the standards set forth in subsection (b) of 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;

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     (iv) Education, training or experience to the extent such factors are reasonably related to

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the particular job in question;

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     (v) Geographical location of the job;

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     (vi) A factor other than race, color or gender, including, but not limited to, work-related

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travel, if the travel is a regular and necessary condition of the particular job; or reasonable shift

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differentials.

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

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disclosing the wages of such employee to 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. However, employees who have access to the

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compensation information of other employees or applicants as a part of their essential job

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functions cannot disclose the pay of other employees or applicants to individuals who do not

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otherwise have access to compensation information, unless the disclosure is:

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     (i) In response to a formal complaint or charge;

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     (ii) In furtherance of an investigation, proceeding, hearing, or action, including an

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investigation conducted by the employer; or

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     (iii) Consistent with the employer's legal duty to furnish information.

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      (2) Nothing in this section 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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     (e) No employer shall:

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     (1) Rely on the wage history of an applicant for employment in considering them for

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employment, including, but not limited to, requiring that an applicant's prior wages satisfy

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

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     (2) Rely on the wage history of an applicant for employment in determining the wages

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such applicant is to be paid by the employer upon hire; provided that an employer may rely on

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wage history, if it is voluntarily, and without prompting, provided by an applicant for

 

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employment, after the employer makes an offer of employment with an offer of wages to the

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

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     (3) Seek from an applicant for employment or their current or former employer the wage

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history of the applicant; provided, however, that an employer may inquire about an applicant's

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past performance as well as whether the applicant will have to forfeit deferred compensation or

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unvested equity from their current employer and the value and structure of the deferred

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compensation or unvested equity, request documentation to verify the applicant's representation,

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and consider such information in making the applicant an offer. 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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     (i) This subdivision shall not apply to:

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     (A) Any actions taken by an employer, employment agency, or employee or agent thereof

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pursuant to any federal, state or local law that specifically authorizes the disclosure or verification

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of salary history for employment purposes, or specifically requires knowledge of salary history to

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determine an employee's compensation;

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     (B) Applicants for internal transfer or promotion with their current employer;

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     (C) Any attempt by an employer, employment agency, or employee or agent thereof, to

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verify an applicant's disclosure of non-salary related information or conduct a background check,

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provided that if such verification or background check discloses the applicant's salary history,

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such disclosure shall not be relied upon for purposes of determining the salary, benefits or other

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compensation of such applicant during the hiring process, including the negotiation of a contract;

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or

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     (D) Public employee positions for which salary, benefits or other compensation are

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determined pursuant to procedures established by collective bargaining.

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

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understanding entered into after the effective date of this act establishing a variation in rates of

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pay based on race, color, or gender shall be null and void.

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     (g) 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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     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, aggrieved by a violation of § 28-6-18 may

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file a 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 chapter 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 18(c), an aggrieved party shall be entitled to

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recover any unpaid wages and/or benefits; compensatory damages; as well as an award of

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

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

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     (h) An employer against whom an action is brought alleging a violation of § 28-6-18(a)

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through 18(f) and who, within the previous five (5) years and prior to the commencement of the

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action, has both completed a self-evaluation of its pay practices in good faith and can demonstrate

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that reasonable progress has been made towards eliminating compensation differentials based on

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race, color or gender for equal work in accordance with that evaluation, shall have an affirmative

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defense to liability under § 28-6-18(a) through 18(f). For purposes of this subsection, an

 

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employer's self-evaluation may be of the employer's own design, so long as it is reasonable in

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detail and scope in light of the size of the employer or may be consistent with standard templates

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or forms issued by the department of labor and training.

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     (1) In determining if a self-evaluation is reasonable in detail and scope, the factors the

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court may consider include, but are not limited to, whether the evaluation includes a reasonable

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number of jobs and employees; whether the evaluation takes into account all reasonably relevant

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and available information; and whether the evaluation is reasonably sophisticated in its analysis

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of potentially equal work, employee compensation, and the application of the permissible reasons

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for compensation differentials set forth in § 28-6-18(b).

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     (2) In determining whether an employer has made reasonable progress toward

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eliminating compensation differentials, the factors the court may consider include, but are not

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limited to, how much time has passed, the nature and degree of its progress as compared to the

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scope of the compensation differentials identified, and the size and resources of the employer.

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     (3) Evidence of a self-evaluation or remedial steps undertaken in accordance with this

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subsection shall not be admissible in any proceeding as evidence of violation of § 28-6-18(a)

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through 18(f) that occurred prior to the date of the self-evaluation was completed or that occurred

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either:

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     (i) Within one year thereafter; or

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     (ii) Within two (2) years thereafter if the employer can demonstrate that it has developed

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and begun implementing in good faith a plan to address any wage differentials based on race,

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color or gender for equal work.

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     (2) An employer who has not completed a self-evaluation shall not be subject to any

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negative or adverse inferences as a result of having not completed a self-evaluation.

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

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recover any compensatory damages and reasonable attorneys' fees.

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     (j) The department of labor and training is hereby directed to adopt rules and regulations

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consistent with this chapter, as soon as possible, but no later than January 15, 2019. Any and all

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rules and regulations that are adopted and developed by the department of labor and training

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and/or any other state agency regarding this chapter, shall be subject to the approval of the

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general assembly prior to becoming effective.

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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(f) shall, in addition to any other relief to which

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any department or any aggrieved party may be entitled for such a violation, be liable for a fine of

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not more than two hundred dollars ($200) per violation.

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     (b) 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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     SECTION 3. Section 28-6-20 of the General Laws in Chapter 28-6 entitled "Wage

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Discrimination Based on Sex" is hereby repealed.

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     28-6-20. Civil liability of employer for sex 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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     SECTION 4. 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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     28-6-22. Uniformity.

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     No municipality shall establish, mandate, or otherwise require an employer to comply

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with wage differential standards different from those required under chapter 6 of title 28.

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     SECTION 5. This act shall take effect on July 1, 2020.

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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, sex 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 factors other than race,

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color or sex.

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     This act would take effect on July 1, 2020.

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