Amended in Senate August 17, 2016

Amended in Senate June 21, 2016

Amended in Assembly May 31, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 1890


Introduced by Assembly Member Dodd

(Coauthors: Assembly Members Bonta and Gonzalez)

(Coauthors: Senatorsbegin delete Blockend deletebegin insert Block, Hall,end insert and Wolk)

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. 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.

This bill would enact the Equal Pay for Equal Work Act of 2016. The bill would require an employer withbegin delete 100 or more employees in the state andend delete a contract with the state that amounts to $50,000 or morebegin insert that either is required by federal regulations to submit an EEO-1 report to the United States Equal Employment Opportunity Commission (EEOC) or has 100 or more employees in the stateend insert to submit a nondiscrimination program to the department and to submit periodic reports of its compliance with that program, no more than annually, on a schedule to be determined by the department. The bill would require the department to make these programs and reports available to the Commission on the Status of Women and Girls. The bill would authorize the department to require approval and certification of the program. The bill would permit the department to requirebegin delete an employer with fewer than 100 employees in state or a contract with the state that amounts to less than $50,000end deletebegin insert other employersend insert to comply with those program and report submission requirements. 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, a description of employment selection procedures, and employee compensation data, as specified. The bill would specify that a contractor or subcontractor may submitbegin delete a certainend deletebegin insert an EEO-1end insert report subject to review by thebegin delete United States Equal Employment Opportunity Commissionend deletebegin insert EEOCend insert with the department in lieu of the nondiscrimination program. 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 $0.79 for every dollar a man earns. The wage
P3    1gap is greater for women of color, with African American women
2being paid an average of $0.60 for every dollar paid to white,
3non-Hispanic men in 2015 and Latinas being paid just $0.55 for
4every dollar paid to white, non-Hispanic men in the same year.

5(2) This wage disparity amounted to a yearly average wage gap
6of $10,762 in 2015 between full-time working men and full-time
7working women. In total, the disparity represents more than $490
8billion in lost wages for working women every year.

9(3) Disparities in pay for women have numerous negative
10impacts. This pay differential shortchanges women and their
11families by thousands of dollars a year and potentially hundreds
12of thousands of dollars over a lifetime. Nearly 4 in 10 mothers are
13primary breadwinners in their households, and nearly two-thirds
14are significant earners, making pay equity critical to the economic
15security of their families.

16(4) Equal pay for equal work is a fundamental precept in our
17nation and in California. Federal law, including the federal Equal
18Pay Act of 1963 (Public Law 88-38), Title VII of the Civil Rights
19Act of 1964 (Public Law 88-352), and Executive Order 11246 of
20September 24, 1965, entitled Equal Employment Opportunity,
21specifically prohibits arbitrarily compensating men and women
22differently for the same work, as does California’s Equal Pay Act.

23(5) On August 6, 2014, the United States Department of Labor’s
24Office of Federal Contract Compliance Programs issued a notice
25of proposed rulemaking to require covered federal contractors and
26subcontractors with more than 100 employees to submit an annual
27equal pay report on employee compensation. In California, state
28contractors receiving public money are obligated to comply with
29equal pay laws and should provide the state with aggregate wage
30data to advance pay equity.

31(b) It is the intent of the Legislature in enacting this act to
32promote pay equity and nondiscrimination in setting pay and
33making hiring or promotional decisions, and to obtain better data
34on pay equity to more wholly address the problem.

35

SEC. 3.  

Section 12990 of the Government Code is amended
36to read:

37

12990.  

(a) An employer that is, or wishes to become, a
38contractor with the state for public works or for goods or services
39is subject to the provisions of this part relating to discrimination
P4    1in employment and to the nondiscrimination requirements of this
2section and any rules and regulations that implement it.

3(b) (1) (A) begin deleteAn employer with end deletebegin insertAny employer with a contract
4with the state that amounts to fifty thousand dollars ($50,000) or
5more that either is required by federal regulations to submit an
6EEO-1 report to the United States Equal Employment Opportunity
7Commission or has end insert
100 or more employees in the state begin delete and a
8contract with the state that amounts to fifty thousand dollars
9($50,000) or moreend delete
shall submit a nondiscrimination program to
10the department and shall submit periodic reports of its compliance
11with the program, no more than annually, on a schedule to be
12determined by the department. The department shall make the
13programs and reports available to the Commission on the Status
14of Women and Girls.begin delete Theend delete

15begin insert(B)end insertbegin insertend insertbegin insertTheend insert department may also require an employerbegin delete with fewer
16than 100 employees in the state or a contract with the state that
17amounts to less than fifty thousand dollars ($50,000)end delete
begin insert that is not
18described in subparagraph (A)end insert
to submit a nondiscrimination
19program and, if the department so requires, the employer shall
20comply with the requirements for employersbegin delete with 100 or more
21employees in the state and a contract with the state that amounts
22to fifty thousand dollars ($50,000) or more. Theend delete
begin insert described in
23subparagraph (A).end insert

24begin insert(C)end insertbegin insertend insertbegin insertTheend insert department may require approval and certification of
25a nondiscrimination program.begin delete Theend delete

26begin insert(D)end insertbegin insertend insertbegin insertTheend insert department shall define an employee for the purposes
27of this paragraph.

begin delete

28(B)

end delete

29begin insert(E)end insert An employee in the construction industry covered by a valid
30collective bargaining agreement that expressly provides for the
31wages, hours of work, and working conditions of employees,
32premium wage rates for all overtime worked, and regular hourly
33pay of not less than 30 percent above the state minimum wage rate
34shall be excluded from calculation of the employer’s total number
35of employees for purposes of this paragraph.

36(2) A nondiscrimination program shall include policies and
37procedures designed to ensure equal employment opportunities
38for all applicants and employees, a description of employment
39selection procedures, and employee compensation data, as follows:

P5    1(A) The total number of workers in a specific job category
2identified by worker race or national origin, and sex.

3(B) The total wages required to be reported on Internal Revenue
4Service form W-2 for all workers in a specific job category
5identified by worker race or national origin, and sex.

6(C) The total hours worked on an annual basis for all workers
7in a specific job category identified by worker race or national
8origin, and sex. For purposes of this subdivision, if an employer
9does not track exempt employees’ hours worked, full-time exempt
10employees shall be presumed to work 40 hours a week and
11part-time exempt employees shall be presumed to work 20 hours
12a week, unless the employer utilizes a different standard number
13of hours a week for exempt employees, in which case the employer
14shall report total hours worked on an annual basis by those
15employees based on that standard number.

16(c) Every state contract and subcontract for public works or for
17goods or services shall contain a nondiscrimination clause
18prohibiting discrimination on the bases enumerated in this part by
19contractors or subcontractors. The nondiscrimination clause shall
20contain a provision requiring contractors and subcontractors to
21give written notice of their obligations under that clause to labor
22organizations with which they have a collective bargaining or other
23agreement. These contractual provisions shall be fully and
24effectively enforced. This subdivision does not apply to a credit
25card purchase of goods of two thousand five hundred dollars
26($2,500) or less. The total amount of exemption authorized herein
27shall not exceed seven thousand five hundred dollars ($7,500) per
28year for each company from which a state agency is purchasing
29goods by credit card. It shall be the responsibility of each state
30agency to monitor the use of this exemption and adhere to these
31restrictions on these purchases.

32(d) The department shall periodically develop rules and
33regulations for the application and implementation of this section,
34and submit them to the council for consideration and adoption in
35accordance with the provisions of Chapter 3.5 (commencing with
36Section 11340) of Part 1. Those rules and regulations shall describe
37and include, but not be limited to, all of the following:

38(1) Procedures for the investigation, approval, certification,
39decertification, monitoring, and enforcement of nondiscrimination
40programs.

P6    1(2) The size of contracts or subcontracts below which any
2particular provision of this section shall not apply.

3(3) The circumstances, if any, under which a contractor or
4subcontractor is not subject to this section.

5(4) Criteria for determining the appropriate plant, region,
6division, or other unit of a contractor’s or subcontractor’s operation
7for which a nondiscrimination program is required.

8(5) Procedures for coordinating the nondiscrimination
9requirements of this section and its implementing rules and
10regulations with the California Plan for Equal Opportunity in
11Apprenticeship, with the provisions and implementing regulations
12of Article 9.5 (commencing with Section 11135) of Chapter 1 of
13Part 1, and with comparable federal laws and regulations
14concerning nondiscrimination, equal employment opportunity,
15and affirmative action by those who contract with the United States.

16(6) The basic principles and standards to guide the department
17in administering and implementing this section.

18(e) Where a contractor or subcontractor is required to prepare
19an affirmative action, equal employment, or nondiscrimination
20program subject to review and approval by a federal compliance
21agency, including an EEO-1 report that is subject to review by the
22United States Equal Employment Opportunity Commission, that
23program may be submitted with the department, instead of any
24nondiscrimination program otherwise required by this section or
25its implementing rules and regulations. Such a program shall
26constitute a prima facie demonstration of compliance with this
27section. Where the department or a federal compliance agency has
28required the preparation of an affirmative action, equal
29employment, or nondiscrimination program subject to review and
30approval by the department or a federal compliance agency,
31evidence of such a program shall also constitute prima facie
32compliance with an ordinance or regulation of any city, city and
33county, or county that requires an employer to submit such a
34program to a local awarding agency for its approval prior to
35becoming a contractor or subcontractor with that agency.

36(f) Where the department determines and certifies that the
37provisions of this section or its implementing rules and regulations
38are violated or determines a contractor or subcontractor is engaging
39in practices made unlawful under this part, the department may
40recommend appropriate sanctions to the awarding agency. Any
P7    1such recommendation shall take into account the severity of the
2violation or violations and any other penalties, sanctions, or
3remedies previously imposed.

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



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