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:

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

combat wage discrimination based on race or color, and sex, by strengthening and closing gaps in

existing wage discrimination laws.

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

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

follows:

     28-6-17. Definitions.

     As used in this chapter:

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

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

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

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

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

inures to the benefit of any private individual in the state of Rhode Island suffered or permitted to

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

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

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

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

employee.

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

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

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

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

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

performed under similar working conditions.

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

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

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

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

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

applicant's current employer and/or previous employer or employers. "Wage history" does not

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

production reports.

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

protected characteristics prohibited.

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

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

employees for equal work or work on the same operations pay any of its employees at a wage rate

less than the rate paid to employees of another race, color, or gender for equal work, except where

the employer meets the standards set forth in subsection (b) of this section.

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

either difference in:

     (1) Seniority, experience, training, skill, or ability;

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

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

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

difference in sex.

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

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

between the sexes, shall be null and void.

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

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

     (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.

     (ii) A merit system;

     (iii) A system that measures earnings by quantity or quality of production;

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

the particular job in question;

     (v) Geographical location of the job;

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

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

differentials.

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

differential.

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

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

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

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

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

exercise their rights under this subsection. However, employees who have access to the

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

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

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

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

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

investigation conducted by the employer; or

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

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

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

by any other provision of law or collective bargaining agreement.

     (e) No employer shall:

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

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

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

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

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

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

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

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

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

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

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

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

and consider such information in making the applicant an offer. An employer may seek to

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

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

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

     (i) This subdivision shall not apply to:

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

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

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

determine an employee's compensation;

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

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

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

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

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

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

or

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

determined pursuant to procedures established by collective bargaining.

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

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

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

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

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

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

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

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

nor more than five hundred dollars ($500).

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     28-6-19. Enforcement of provisions.

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

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

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

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

administrative hearings, complaints.

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

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

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

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

regarding which they may be lawfully interrogated.

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

themselves and other similarly situated individuals, aggrieved by a violation of § 28-6-18 may

file a complaint with the director of labor and training.

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

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

the jurisdiction of both agencies.

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

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

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

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

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

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

from such a decision or other practice.

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

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

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

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

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

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

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

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

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

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

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

or forms issued by the department of labor and training.

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

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

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

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

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

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

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

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

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

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

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

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

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

either:

     (i) Within one year thereafter; or

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

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

color or gender for equal work.

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

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

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

recover any compensatory damages and reasonable attorneys' fees.

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

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

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

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

general assembly prior to becoming effective.

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

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

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

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

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

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

months, or by both fine and imprisonment.

     (a) Any employer who violates § 28-6-18(f) shall, in addition to any other relief to which

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

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

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

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

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

innocent mistake or willful.

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

Discrimination Based on Sex" is hereby repealed.

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

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

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

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

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

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

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

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

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

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

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

various claimants against the employer in one cause of action.

     SECTION 4. Chapter 28-6 of the General Laws entitled "Wage Discrimination Based on

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

     28-6-22. Uniformity.

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

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

     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

upon the race or color, sex of the employee. The act would also provide that where wage

differentials do exist, employers must justify said differentials based on factors other than race,

color or sex.

     This act would take effect on July 1, 2020.

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