2019 -- S 0509

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRACTICES

     Introduced By: Senators Goldin, Ruggerio, Goodwin, Lawson, and Cano

     Date Introduced: February 27, 2019

     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 that 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, when 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) "Occurrence of discriminatory practice" means 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.

     (i) "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.

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

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

     (k) "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, country of ancestral origin, or any other

characteristics enumerated in § 28-5-5, for comparable 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;

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     (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 that:

     (1) 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; or

     (iv) A bona fide factor, other than those characteristics identified in § 28-6-18(a), such as

education, training, or experience; work-related travel, if the travel is regular and a business

necessity; or reasonable shift differentials, which is not based upon or derived from a differential

in compensation based on characteristics identified in § 28-6-18(a); which is job-related with

respect to the position in question; and which is consistent with business necessity. This factor

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; and

     (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

disclosing the wages of such employee or 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 his or her wages. No

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employer shall prohibit an employee from aiding or encouraging any other employee to exercise

his or her rights under this subsection:

     (1) Nothing in this subsection shall require an employee to disclose his or her wages;

     (2) 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 with the employer, the director of labor and training, or any other person,

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

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

has testified or is planning 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) Except as provided in this section, any provision in any contract entered into after

passage of this chapter establishing a variation in rates of pay based on the characteristics

identified by § 28-6-18(a) shall be null and void.

     (i) 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 fined not

less than one hundred dollars ($100) nor more than five hundred dollars ($500).

     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.

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     (d) 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.

     (e) At the request of any party aggrieved by a violation of § 28-6-18, et seq., 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. The director of labor and

training shall not be required to pay the filing fee or other costs in connection with any action.

The director of labor and training shall have the power to join various claimants against the

employer, in one cause of action. If the director of labor and training prevails in an enforcement

action, the aggrieved party shall be awarded damages and the department of labor and training

shall be awarded penalties in accordance with §§ 28-6-20 and 28-6-21.

     (f) 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, et seq., may file

a complaint with the director of labor and training or may file a civil action in any court of

competent jurisdiction to obtain relief.

     (g) 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

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

     (h) 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.

     (i) All claims filed under this chapter shall be filed within three (3) years after there is an

occurrence of, or the discovery of an occurrence of, a discriminatory practice.

     (j) All claims under this chapter also include each time wages, benefits, or other

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

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

employer for unlawful wage differentials.

     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

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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) An employer who violates §§ 28-6-18(a) through (g) shall be liable for 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; 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. Where the aggrieved

party demonstrates that the employer acted with malice or reckless indifference, punitive

damages may be assessed.

     (b) An employer who violates § 28-6-18.1 shall be liable for any compensatory damages;

special damages not to exceed ten thousand dollars ($10,000); an award of appropriate equitable

relief; reasonable attorneys' fees; and other litigation costs. Where the aggrieved party

demonstrates that the employer acted with malice or reckless indifference, punitive damages may

be assessed. If special damages are available, an aggrieved party may only recover compensatory

damages that exceed the amount of special damages.

     28-6-21. 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) In addition to any other relief to which any aggrieved party may be entitled for such a

violation, an employer who violates §§ 28-6-18 or 28-6-18.1 shall be liable for a civil penalty to

be paid to the department of labor and training. That penalty shall be the greater amount of the

total back wages due or the following:

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

     (2) Three thousand dollars ($3,000) for a second violation; or

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

     (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

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

innocent mistake or willful. 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:

     (1) Completed in good faith, within three (3) years prior to the date that the plaintiff filed

the action, a fair-pay analysis of the employer's pay practices that was reasonable in detail and in

scope, in light of the size of the employer, and was related to the protected class asserted by the

plaintiff in the action.

     (2) 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

     (3) 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.

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

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

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

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

     28-6-18.1. Wage history and wage range.

     (a) No employer shall:

     (1) Rely on the wage history of an applicant when deciding whether to consider the

applicant for employment;

     (2) Require that an applicant's prior wages satisfy minimum or maximum criteria as a

condition of being considered for employment;

     (3) Rely on the wage history of an applicant in determining the wages such applicant is to

be paid by the employer, upon hire; or

     (4) Seek from an applicant or their current or former employer the wage history of an

applicant.

     (b) Provided, however, that after the employer makes an initial offer of employment with

an offer of compensation to an applicant for employment, an employer may:

     (1) Rely on wage history to support a wage higher than the wage offered by the

employer, if wage history is voluntarily provided by the applicant for employment, without

prompting from the employer;

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     (2) Seek to confirm the wage history of the applicant for employment to support a wage

higher than the wage offered by the employer, when relying on wage history as permitted in

subsection (b)(1) of this section; and

     (3) Rely on wage history in these circumstances to the extent that the higher wage does

not create an unlawful pay differential based on the characteristics identified in § 28-6-18(a).

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

position for which the applicant is applying upon the earliest of the following: the applicant's

request; prior to or at the time of inquiring about the applicant's wage expectations; or prior to or

at the time of providing the applicant an offer of compensation. 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.

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

determining the information to be provided pursuant to subsection (c) of this section which may

include definitions.

     (e) An employer may not refuse to interview, hire, promote, or employ an applicant for

employment or employee and may not retaliate against that individual because he or she did not

provide wage history or because he or she requested the wage range for a position in accordance

with this section.

     SECTION 4. This act shall take effect on January 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

***

     This act would comprehensively address wage discrimination by expanding employee

protections and the scope of the remedies available to employees who have experienced wage

discrimination.

     This act would take effect on January 1, 2020.

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