Amended in Senate June 21, 2016

Amended in Assembly May 31, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1890

Introduced by Assembly Member Dodd

( begin delete Coauthor: end delete begin insert Coauthors: end insert Assembly begin delete Member end delete begin insert Members Bonta and end insert Gonzalez)

begin insert

(Coauthors: Senators Block and Wolk)

end insert

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. begin insert Existing law authorizes a contractor or subcontractor to file an affirmative action, equal employment, or nondiscrimination program subject to review and approval by a federal compliance agency with the department in lieu of that nondiscrimination program. end insert

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 begin delete of 30 days end delete begin insert that amounts to $50,000 end insert or more to submit a begin delete description of its end delete nondiscrimination program to the department and to submit periodic begin delete reports, end delete begin insert reports of its compliance with that program, end insert no more than annually, on a schedule to be determined by the begin delete department, of its compliance with that program. end delete begin insert department. The bill would require the department to make these programs and reports available to the Commission on the Status of Women and Girls. end insert 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 begin delete of end delete begin insert with the state that amounts to end insert less than begin delete 30 days end delete begin insert $50,000 end insert to begin delete submit a nondiscrimination report. end delete begin insert comply with those program and report submission requirements. end insert 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, begin delete an analysis end delete begin insert a description end insert of employment selection procedures, and begin delete a workforce analysis, end delete begin insert employee compensation data, end insert as specified. begin insert The bill would specify that a contractor or subcontractor may submit a certain report subject to review by the United States Equal Employment Opportunity Commission with the department in lieu of the nondiscrimination program. end insert 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:

SECTION 1.  

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

SEC. 2.  

(a) The Legislature finds and declares the following:

(1) According to data from the United States Census Bureau,
full-time working women, on average, over the last decade, have
continued to earn just begin delete $0.77 end delete begin insert $0.79 end insert for every dollar a man earns.
The wage gap is greater for women of color, with African
American women being paid an average of begin delete $0.64 end delete begin insert $0.60 end insert for every
dollar paid to white, non-Hispanic men in begin delete 2013 end delete begin insert 2015 end insert and Latinas
being paid just begin delete $0.56 end delete begin insert $0.55 end insert for every dollar paid to white,
non-Hispanic begin delete men. end delete begin insert men in the same year. end insert

(2) This wage disparity amounted to a yearly average wage gap
of begin delete $10,876 end delete begin insert $10,762 end insert in begin delete 2013 end delete begin insert 2015 end insert between full-time working men
and full-time working women. In total, the disparity represents
more than $490 billion in lost wages for working women every
year.

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

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

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

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

SEC. 3.  

Section 12990 of the Government Code is amended
to read:

12990.  

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

(b) (1) (A)  begin delete (i) end delete begin delete   end delete An employer with 100 or more employees in
the state and a contract with the state begin delete of 30 days or more end delete begin insert that
amounts to fifty thousand dollars ($50,000) or more end insert shall submit
a begin delete description of its end delete nondiscrimination program to the department
and shall submit periodic begin delete reports, end delete begin insert reports of its compliance with
the program, end insert no more than annually, on a schedule to be
determined by the begin delete department, of its compliance with that program.
An end delete begin insert department. The department shall make the programs and
reports available to the Commission on the Status of Women and
Girls. The department may also require an end insert employer with fewer
than 100 employees in the state or a contract begin delete of less than 30 days
may be required end delete begin insert with the state that amounts to less than fifty
thousand dollars ($50,000) end insert to submit a nondiscrimination program
and, if begin delete so required, end delete begin insert the department so requires, the employer end insert shall
comply with the requirements for employers with 100 or more
employees in the begin delete state. end delete begin insert state and a contract with the state that
amounts to fifty thousand dollars ($50,000) or more. end insert The
department may require approval and certification of a
nondiscrimination program. The department shall define an
employee for the purposes of this paragraph.

begin delete

(ii)

end delete

begin insert (B) end insert  An employee in the construction industry covered by a valid
collective bargaining agreement that expressly provides for the
wages, hours of work, and working conditions of employees,
premium wage rates for all overtime worked, and regular hourly
pay of not less than 30 percent begin delete of end delete begin insert above end insert the state minimum wage
rate shall be excluded from calculation of the employer’s total
number of employees for purposes of this begin delete subparagraph. end delete

begin insert paragraph. end insert

begin delete

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

end delete

(2) A nondiscrimination program shall include policies and
procedures designed to ensure equal employment opportunities
for all applicants and employees, begin delete an analysis end delete begin insert a description end insert of
employment selection procedures, and begin delete a workforce analysis. The
workforce analysis shall include the following: end delete begin insert employee
compensation data, as follows: end insert

(A) The total number of workers begin delete with end delete begin insert in end insert a specific job category
identified by worker begin delete race, ethnicity, end delete begin insert race or national origin, end insert and
sex.

(B) The total wages required to be reported on Internal Revenue
Service form W-2 for all workers in a specific job category
identified by worker begin delete race, ethnicity, end delete begin insert race or national origin, end insert and
sex.

(C) The total hours worked on an annual basis for all workers
in a specific job category identified by worker begin delete race, ethnicity, end delete begin insert race
or national origin, end insert and sex. begin delete Exempt employees shall be presumed
to work 40 hours a week for purposes of this reporting requirement. end delete

begin insert For purposes of this subdivision, if an employer does not track
exempt employees’ hours worked, full-time exempt employees shall
be presumed to work 40 hours a week and part-time exempt
employees shall be presumed to work 20 hours a week, unless the
employer utilizes a different standard number of hours a week for
exempt employees, in which case the employer shall report total
hours worked on an annual basis by those employees based on
that standard number. end insert

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

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

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

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

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

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

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

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

(e) Where a contractor or subcontractor is required to prepare
an affirmative action, equal employment, or nondiscrimination
program subject to review and approval by a federal compliance
agency, begin insert including an EEO-1 report that is subject to review by the
United States Equal Employment Opportunity Commission, end insert that
program may be begin delete filed end delete begin insert submitted end insert with the department, instead of
any nondiscrimination program begin delete regularly end delete begin insert otherwise end insert required by
this section or its implementing rules and regulations. Such a
program shall constitute a prima facie demonstration of compliance
with this section. Where the department or a federal compliance
agency has required the preparation of an affirmative action, equal
employment, or nondiscrimination program subject to review and
approval by the department or a federal compliance agency,
evidence of such a program shall also constitute prima facie
compliance with an ordinance or regulation of any city, city and
county, or county that requires an employer to submit such a
program to a local awarding agency for its approval prior to
becoming a contractor or subcontractor with that agency.

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

begin insert

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

end insert