California Legislature—2015–16 Regular Session

Assembly BillNo. 1890

Introduced by Assembly Member Dodd

February 11, 2016

An act to amend Section 12990 of the Government Code, relating to discrimination.


AB 1890, as introduced, Dodd. Discrimination: equal pay: state contracting.

Existing law subjects an employer who is, or wishes to become, a contractor with the state for public works, or for goods or services, to various nondiscrimination requirements. Existing law authorizes requiring an employer to submit a nondiscrimination program to the Department of Fair Employment and Housing for approval and certification prior to becoming a contractor or subcontractor with the state, as well as requiring the provision of periodic reports of contractor or subcontractor compliance with that program.

This bill would enact the Equal Pay for Equal Work Act of 2016. The bill would require an employer with 100 or more employees in the state and a contract with the state of 30 days or more to submit a description of its nondiscrimination program to the department and to submit periodic reports, no more than annually, on a schedule to be determined by the department, of its compliance with that program. The bill would authorize the department to require approval and certification of the program. The bill would permit the department to require an employer with fewer than 100 employees in state or a contract of less than 30 days to submit a nondiscrimination report. The bill would require the department to define an employee for these purposes. The bill would require the nondiscrimination program to include policies and procedures designed to ensure equal employment opportunities for all applicants and employees, an analysis of employment selection procedures, and a workforce analysis, as specified. The bill would specify that its provisions are not to be construed to negate certain exemptions established by regulation that predate its enactment or to require the department to reevaluate the validity of these exemptions, as specified. The bill would make a statement of legislative findings.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1


This act shall be known, and may be cited, as the
2Equal Pay for Equal Work Act of 2016.


SEC. 2.  

(a) The Legislature finds and declares the following:

4(1) According to data from the United States Census Bureau,
5full-time working women, on average, over the last decade, have
6continued to earn just $0.77 for every dollar a man earns. The wage
7gap is greater for women of color, with African American women
8being paid an average of $0.64 for every dollar paid to white,
9non-Hispanic men in 2013 and Latinas being paid just $0.56 for
10every dollar paid to white, non-Hispanic men.

11(2) This wage disparity amounted to a yearly average wage gap
12of $10,876 in 2013 between full-time working men and full-time
13working women. In total, the disparity represents more than $490
14billion in lost wages for working women every year.

15(3) Disparities in pay for women have numerous negative
16impacts. This pay differential shortchanges women and their
17families by thousands of dollars a year and potentially hundreds
18of thousands of dollars over a lifetime. Nearly 4 in 10 mothers are
19primary breadwinners in their households, and nearly two-thirds
20are significant earners, making pay equity critical to the economic
21security of their families.

22(4) Equal pay for equal work is a fundamental precept in our
23nation and in California. Federal law, including the federal Equal
24Pay Act of 1963 (Public Law 88-38), Title VII of the Civil Rights
25Act of 1964 (Public Law 88-352), and Executive Order 11246 of
26September 24, 1965, entitled Equal Employment Opportunity,
P3    1specifically prohibits arbitrarily compensating men and women
2differently for the same work, as does California’s Equal Pay Act.

3(5) On August 6, 2014, the United States Department of Labor’s
4Office of Federal Contract Compliance Programs issued a notice
5of proposed rulemaking to require covered federal contractors and
6subcontractors with more than 100 employees to submit an annual
7equal pay report on employee compensation. In California, state
8contractors receiving public money are obligated to comply with
9equal pay laws and should provide the state with aggregate wage
10data to advance pay equity.

11(b) It is the intent of the Legislature in enacting this act to
12promote pay equity and nondiscrimination in setting pay and
13making hiring or promotional decisions, and to obtain better data
14on pay equity to more wholly address the problem.


SEC. 3.  

Section 12990 of the Government Code is amended
16to read:



(a) Any employer who is, or wishes to become, a
18contractor with the state for public works or for goods or services
19is subject to the provisions of this part relating to discrimination
20in employment and to the nondiscrimination requirements of this
21section and any rules and regulations that implement it.

22(b) begin deletePrior to becoming a contractor or subcontractor with the
23state, an employerend delete
begin insert(1)end insertbegin insertend insertbegin insert(A)end insertbegin insertend insertbegin insert(i)end insertbegin insertend insertbegin insertAn employer with 100 or more
24employees in the state and a contract with the state of 30 days or
25more shall submit a description of its nondiscrimination program
26to the department and shall submit periodic reports, no more than
27annually, on a schedule to be determined by the department, of its
28compliance with that program. An employer with fewer than 100
29employees in the state or a contract of less than 30 daysend insert
may be
30required to submit a nondiscrimination programbegin delete to the department
31for approval and certification and may be required to submit
32periodic reports of its compliance with that program.end delete
begin insert and, if so
33required, shall comply with the requirements for employers with
34100 or more employees in the state. The department may require
35approval and certification of a nondiscrimination program. The
36department shall define an employee for the purposes of this
37paragraph.end insert

begin insert

38(ii) An employee in the construction industry covered by a valid
39collective bargaining agreement that expressly provides for the
40wages, hours of work, and working conditions of employees,
P4    1premium wage rates for all overtime worked, and regular hourly
2pay of not less than 30 percent of the state minimum wage rate
3shall be excluded from calculation of the employer’s total number
4of employees for purposes of this subparagraph.

end insert
begin insert

5(B) The changes made to this subdivision made by the act adding
6this subparagraph shall not be construed to negate an exemption
7to the requirements of this section in existence on January 1, 2017,
8created by the department through the exercise of its regulatory
9authority, or to otherwise require the department to reinterpret
10the validity of an exemption as a result of these changes.

end insert
begin insert

11(2) A nondiscrimination program shall include policies and
12procedures designed to ensure equal employment opportunities
13for all applicants and employees, an analysis of employment
14selection procedures, and a workforce analysis. The workforce
15analysis shall include the following:

end insert
begin insert

16(A) The total number of workers with a specific job category
17identified by worker race, ethnicity, and sex.

end insert
begin insert

18(B) The total wages required to be reported on Internal Revenue
19Service form W-2 for all workers in a specific job category
20identified by worker race, ethnicity, and sex.

end insert
begin insert

21(C) The total hours worked on an annual basis for all workers
22in a specific job category identified by worker race, ethnicity, and
23sex. Exempt employees shall be presumed to work 40 hours a week
24for purposes of this reporting requirement.

end insert

25(c) Every state contract and subcontract for public works or for
26goods or services shall contain a nondiscrimination clause
27prohibiting discrimination on the bases enumerated in this part by
28contractors or subcontractors. The nondiscrimination clause shall
29contain a provision requiring contractors and subcontractors to
30give written notice of their obligations under that clause to labor
31organizations with which they have a collective bargaining or other
32agreement. These contractual provisions shall be fully and
33effectively enforced. This subdivision does not apply to a credit
34card purchase of goods of two thousand five hundred dollars
35($2,500) or less. The total amount of exemption authorized herein
36shall not exceed seven thousand five hundred dollars ($7,500) per
37year for each company from which a state agency is purchasing
38goods by credit card. It shall be the responsibility of each state
39agency to monitor the use of this exemption and adhere to these
40restrictions on these purchases.

P5    1(d) The department shall periodically develop rules and
2regulations for the application and implementation of this section,
3and submit them to the council for consideration and adoption in
4accordance with the provisions of Chapter 3.5 (commencing with
5Section 11340) of Part 1. Those rules and regulations shall describe
6and include, but not be limited to, all of the following:

7(1) Procedures for the investigation, approval, certification,
8decertification, monitoring, and enforcement of nondiscrimination

10(2) The size of contracts or subcontracts below which any
11particular provision of this section shall not apply.

12(3) The circumstances, if any, under which a contractor or
13subcontractor is not subject to this section.

14(4) Criteria for determining the appropriate plant, region,
15division, or other unit of a contractor’s or subcontractor’s operation
16for which a nondiscrimination program is required.

17(5) Procedures for coordinating the nondiscrimination
18requirements of this section and its implementing rules and
19regulations with the California Plan for Equal Opportunity in
20Apprenticeship, with the provisions and implementing regulations
21of Article 9.5 (commencing with Section 11135) of Chapter 1 of
22Part 1, and with comparable federal laws and regulations
23concerning nondiscrimination, equal employment opportunity,
24and affirmative action by those who contract with the United States.

25(6) The basic principles and standards to guide the department
26in administering and implementing this section.

27(e) Where a contractor or subcontractor is required to prepare
28an affirmative action, equal employment, or nondiscrimination
29program subject to review and approval by a federal compliance
30agency, that program may be filed with the department, instead of
31any nondiscrimination program regularly required by this section
32or its implementing rules and regulations. Such a program shall
33constitute a prima facie demonstration of compliance with this
34section. Where the department or a federal compliance agency has
35required the preparation of an affirmative action, equal
36employment, or nondiscrimination program subject to review and
37approval by the department or a federal compliance agency,
38evidence of such a program shall also constitute prima facie
39compliance with an ordinance or regulation of any city, city and
40county, or county that requires an employer to submit such a
P6    1program to a local awarding agency for its approval prior to
2becoming a contractor or subcontractor with that agency.

3(f) Where the department determines and certifies that the
4provisions of this section or its implementing rules and regulations
5are violated or determines a contractor or subcontractor is engaging
6in practices made unlawful under this part, the department may
7recommend appropriate sanctions to the awarding agency. Any
8such recommendation shall take into account the severity of the
9violation or violations and any other penalties, sanctions, or
10remedies previously imposed.