2018 -- S 2475 SUBSTITUTE A

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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: Senators Goldin, Goodwin, Ruggerio, Lynch Prata, and McCaffrey

     Date Introduced: February 15, 2018

     Referred To: Senate 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, religion, sex, sexual orientation, gender

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

gaps in existing wage discrimination laws.

     SECTION 2. Sections 28-6-17, 28-6-18, 28-6-19, 28-6-20 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) "Age" means anyone who is at least forty (40) years of age.

     (b) "Comparable work" means work requires comparable skill, effort and responsibility,

and is performed under similar working conditions.

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

     (b)(d) "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 who works in the service of an employer under an

express or implied contract of hire, under which an employer has the right to control the details of

work performance.

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

indirectly.

     (d)(f) "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.

     (g) "Fair-pay analysis" means an evaluation process to assess and correct wage disparities

among employees who perform comparable work.

     (h) "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, commission basis, or other

method of calculating the amount, and includes benefits. 

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

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

     (j) "Wage range" means the lower and upper bounds that an employer is willing to pay an

applicant for employment or does pay an employee.

     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 or color, religion, sex, sexual orientation,

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

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

working conditions, 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.

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     (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) That the systems are fair, and are not being used as a pretext for an unlawful wage

differential;

     (2) 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-

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

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

or experience; including, but not limited to, to work-related travel, if the travel is a regular and

necessary condition of the particular job; or reasonable shift differentials. This factor shall apply

only if the employer demonstrates that the factor:

     (A) Is not based on or derived from a differential in compensation based on race or color,

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

ancestral origin;

     (B) Is job-related to the position in question; and

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

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

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

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

adopt such alternative practice.

     (3) Each factor is relied upon reasonably.

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

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

differential.

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

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

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

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

     (f) 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

engages in such activities.

     (1) 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.

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

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

provided by any other provision of law or collective bargaining agreement.

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

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

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

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

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

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

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

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

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

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

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

through 28-6-21.

     (h) 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 that are 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 after the employer makes an offer of employment with an offer of wages to the

applicant. Then, if an applicant for employment provides wage history voluntarily and without

prompting, to support the applicant's request for a wage higher than the wage offered by the

employer, the employer may rely on such wage history in determining the final wage offer.

     (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 seek to confirm an applicant's

wage history only after an offer of employment with compensation has been made to the

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

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

about the applicant's wage expectations or desired wages or prior to providing the applicant an

offer of compensation, whichever comes first. An employer shall provide an employee the wage

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

upon request.

     (1) The department of labor and training may provide guidance to employers for

determining the information to be provided pursuant to subsection (h)(1) of this section, which

may include definitions for "wage range" and "comparable jobs."

     (j) Except as provided in this section, any provision in any contract entered into after

passage of this act establishing a variation in rates of pay based on race or color, religion, sex,

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

shall be null and void.

     (k) 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).

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

each pay period to each employee. The employer shall keep the records on file for at least three

(3) years after the entry of the record.

     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

set forth in 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 set forth in chapter 14

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

performance of their duties or 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

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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, or any organization representing such an

applicant, employee, or former employee, 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 section 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 the 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 (g), an aggrieved party shall be entitled to

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

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

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

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

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

reasonable attorney's fees, expert fees and other litigation costs.

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

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

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

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

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

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

damages exceed the amount of special damages.

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

employer for unlawful wage 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

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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.

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

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

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

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

must be filed 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 the 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.

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

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

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

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

employment, fringe benefits and seniority rights, and reasonable attorney's fees, expert fees and

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

malice or reckless indifference, punitive damages may be appropriate.

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

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

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

attorney's fees; where the aggrieved party demonstrates that the employer acted with malice or

reckless indifference, punitive damages as may be appropriate; If special damages are available,

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

the amount of special damages.

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

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.

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

department of labor and training from investigating the matter and/or referring the matter to the

attorney general.

     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

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

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

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

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

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

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

     (b) Any employer who violates § 28-6-18(h) through (i) or (l), 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:

     (i) Two thousand five hundred dollars ($2500) for a first violation;

     (ii) Three thousand dollars($3000) for a second violation; and

     (iii) Five thousand dollars ($5000) for a third or subsequent violation.

     (c) 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.

     (1) The director or the court may consider lowering any penalty imposed under this

section if the employer demonstrates, by a preponderance of the evidence, that the employer:

     (i) Completed in good faith, within three (3) years before the date that the employee filed

the action, a fair pay analysis of the employer's pay practices that;

     (A) Was reasonable in detail and in scope in light of the size of the employer; and

     (B) Was related to the protected class asserted by the plaintiff in the action.

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     (ii) Eliminated the wage differentials for the plaintiff and has made reasonable and

substantial progress toward eliminating wage differentials for the protected class asserted by the

plaintiff; and

     (iii) Gathered the same wage record data collected at the end of each year by the

department of labor and training from employers with one hundred (100) or more Rhode Island

employees.

     (2) Information that an employer has not completed a fair-pay analysis may not be used

as evidence of a violation of § 28-6-18.

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

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

may bring any legal action necessary to collect the claim, and the 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 labor and training shall have the power to join various

claimants against the employer in one cause of action.

     SECTION 3. This act shall take effect on January 1, 2019.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO LABOR AND LABOR RELATIONS - FAIR EMPLOYMENT PRACTICES

***

     This act would provide protections against employer-imposed wage differentials based

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

or country of ancestral origin of the employee. This act would also provide that where wage

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

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

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

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

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

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

rights.

     This act would take effect on January 1, 2019.

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