Amended in Assembly May 31, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 1890


Introduced by Assembly Member Dodd

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(Coauthor: Assembly Member Gonzalez)

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February 11, 2016


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

LEGISLATIVE COUNSEL’S DIGEST

AB 1890, as amended, 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

SECTION 1.  

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

3

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
P3    1September 24, 1965, entitled Equal Employment Opportunity,
2specifically prohibits arbitrarily compensating men and women
3differently for the same work, as does California’s Equal Pay Act.

4(5) On August 6, 2014, the United States Department of Labor’s
5Office of Federal Contract Compliance Programs issued a notice
6of proposed rulemaking to require covered federal contractors and
7subcontractors with more than 100 employees to submit an annual
8equal pay report on employee compensation. In California, state
9contractors receiving public money are obligated to comply with
10equal pay laws and should provide the state with aggregate wage
11data to advance pay equity.

12(b) It is the intent of the Legislature in enacting this act to
13promote pay equity and nondiscrimination in setting pay and
14making hiring or promotional decisions, and to obtain better data
15on pay equity to more wholly address the problem.

16

SEC. 3.  

Section 12990 of the Government Code is amended
17to read:

18

12990.  

(a) begin deleteAny end deletebegin insertAnend insert employerbegin delete whoend deletebegin insert thatend insert is, or wishes to become,
19a contractor with the state for public works or for goods or services
20is subject to the provisions of this part relating to discrimination
21in employment and to the nondiscrimination requirements of this
22section and any rules and regulations that implement it.

23(b) (1) (A) (i) An employer with 100 or more employees in
24the state and a contract with the state of 30 days or more shall
25submit a description of its nondiscrimination program to the
26department 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 days may be
30required to submit a nondiscrimination program and, if so required,
31shall comply with the requirements for employers with 100 or
32more employees in the state. The department may require approval
33and certification of a nondiscrimination program. The department
34shall define an employee for the purposes of this paragraph.

35(ii) An employee in the construction industry covered by a valid
36collective bargaining agreement that expressly provides for the
37wages, hours of work, and working conditions of employees,
38premium wage rates for all overtime worked, and regular hourly
39pay of not less than 30 percent of the state minimum wage rate
P4    1shall be excluded from calculation of the employer’s total number
2of employees for purposes of this subparagraph.

3(B) The changes made to this subdivision made by the act adding
4this subparagraph shall not be construed to negate an exemption
5to the requirements of this section in existence on January 1, 2017,
6created by the department through the exercise of its regulatory
7authority, or to otherwise require the department to reinterpret the
8validity of an exemption as a result of these changes.

9(2) A nondiscrimination program shall include policies and
10procedures designed to ensure equal employment opportunities
11for all applicants and employees, an analysis of employment
12selection procedures, and a workforce analysis. The workforce
13analysis shall include the following:

14(A) The total number of workers with a specific job category
15identified by worker race, ethnicity, and sex.

16(B) The total wages required to be reported on Internal Revenue
17Service form W-2 for all workers in a specific job category
18identified by worker race, ethnicity, and sex.

19(C) The total hours worked on an annual basis for all workers
20in a specific job category identified by worker race, ethnicity, and
21sex. Exempt employees shall be presumed to work 40 hours a week
22for purposes of this reporting requirement.

23(c) Every state contract and subcontract for public works or for
24goods or services shall contain a nondiscrimination clause
25prohibiting discrimination on the bases enumerated in this part by
26contractors or subcontractors. The nondiscrimination clause shall
27contain a provision requiring contractors and subcontractors to
28give written notice of their obligations under that clause to labor
29organizations with which they have a collective bargaining or other
30agreement. These contractual provisions shall be fully and
31effectively enforced. This subdivision does not apply to a credit
32card purchase of goods of two thousand five hundred dollars
33($2,500) or less. The total amount of exemption authorized herein
34shall not exceed seven thousand five hundred dollars ($7,500) per
35year for each company from which a state agency is purchasing
36goods by credit card. It shall be the responsibility of each state
37agency to monitor the use of this exemption and adhere to these
38restrictions on these purchases.

39(d) The department shall periodically develop rules and
40regulations for the application and implementation of this section,
P5    1and submit them to the council for consideration and adoption in
2accordance with the provisions of Chapter 3.5 (commencing with
3Section 11340) of Part 1. Those rules and regulations shall describe
4and include, but not be limited to, all of the following:

5(1) Procedures for the investigation, approval, certification,
6decertification, monitoring, and enforcement of nondiscrimination
7programs.

8(2) The size of contracts or subcontracts below which any
9particular provision of this section shall not apply.

10(3) The circumstances, if any, under which a contractor or
11subcontractor is not subject to this section.

12(4) Criteria for determining the appropriate plant, region,
13division, or other unit of a contractor’s or subcontractor’s operation
14for which a nondiscrimination program is required.

15(5) Procedures for coordinating the nondiscrimination
16requirements of this section and its implementing rules and
17regulations with the California Plan for Equal Opportunity in
18Apprenticeship, with the provisions and implementing regulations
19of Article 9.5 (commencing with Section 11135) of Chapter 1 of
20Part 1, and with comparable federal laws and regulations
21concerning nondiscrimination, equal employment opportunity,
22and affirmative action by those who contract with the United States.

23(6) The basic principles and standards to guide the department
24in administering and implementing this section.

25(e) Where a contractor or subcontractor is required to prepare
26an affirmative action, equal employment, or nondiscrimination
27program subject to review and approval by a federal compliance
28agency, that program may be filed with the department, instead of
29any nondiscrimination program regularly required by this section
30or its implementing rules and regulations. Such a program shall
31constitute a prima facie demonstration of compliance with this
32section. Where the department or a federal compliance agency has
33required the preparation of an affirmative action, equal
34employment, or nondiscrimination program subject to review and
35approval by the department or a federal compliance agency,
36evidence of such a program shall also constitute prima facie
37compliance with an ordinance or regulation of any city, city and
38county, or county that requires an employer to submit such a
39program to a local awarding agency for its approval prior to
40becoming a contractor or subcontractor with that agency.

P6    1(f) Where the department determines and certifies that the
2provisions of this section or its implementing rules and regulations
3are violated or determines a contractor or subcontractor is engaging
4in practices made unlawful under this part, the department may
5recommend appropriate sanctions to the awarding agency. Any
6such recommendation shall take into account the severity of the
7violation or violations and any other penalties, sanctions, or
8remedies previously imposed.



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