BILL NUMBER: SB 358	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Jackson

                        FEBRUARY 24, 2015

   An act to amend Sections 232, 232.5, and 1197.5 of the Labor Code,
relating to private employment.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 358, as introduced, Jackson. Conditions of employment: wages
and working conditions: gender wage differential.
   Existing law regulates the payment of compensation to employees by
employers and prohibits an employer from conditioning employment on
requiring an employee to refrain from disclosing the amount of his or
her wages, signing a waiver of the right to disclose the amount of
those wages, or discharging an employee for making such a disclosure.
Existing law establishes similar prohibitions in connection with
disclosing an employer's workplace conditions.
   This bill would extend the prohibitions described above to
discussions and inquiries regarding the wages of an employee, the
wages of other employees, and workplace conditions. The bill would
require an employer to post these provisions in a conspicuous
location frequented by employees during the hours of the workday.
   Existing law generally prohibits an employer from paying an
employee at wage rates less than the rates paid to employees of the
opposite sex in the same establishment for equal work on jobs the
performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions. Existing law establishes exceptions to that prohibition
where the payment is made pursuant to a seniority system, a merit
system, a system which measures earnings by quantity or quality of
production, or a differential based on any bona fide factor other
than sex. Existing law makes it a misdemeanor for an employer or
other person acting either individually or as an officer, agent, or
employee of another person to pay or cause to be paid to any employee
a wage less than the rate paid to an employee of the opposite sex as
required by these provisions, or who reduces the wages of any
employee in order to comply with these provisions.
   This bill would revise that prohibition to eliminate the
requirement that the pay differential be within the same
establishment, and would replace the terms "equal" work "and" equal
skill, effort, and responsibility "with" comparable work "and"
comparable skill, effort, and responsibility. The bill would revise
and recast the exceptions to require the employer to affirmatively
demonstrate that a pay differential is based upon one or more
specified factors, including seniority system, a merit system, a
system that measures earnings by quantity or quality of production,
or that work is performed at different geographic locations, on
different shifts, or at different times of day. The bill would also
require the employer to demonstrate that each factor relied upon is
applied reasonably, and that the one or more factors relied upon
account for the entire differential. By changing the definition of a
crime, this bill would impose a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares the following:
   (a) In 2013, the gender wage gap in California stood at 16 cents
on the dollar. A woman working full-time year-round earned an average
of 84 cents to every dollar a man earned. This wage gap extends
across almost all occupations reporting in California. This gap is
far worse for women of color; Latina women in California make only 44
cents for every dollar a white male makes, the biggest gap for
Latina women in the nation.
   (b) While the state's overall wage gap is slightly lower than the
national average of 77 cents to the dollar, the persistent disparity
in earnings still has a significant impact on the economic security
and welfare of millions of working women and their families.
Collectively, women working full-time in California lose
approximately $36,971,379,159 each year due to the gender wage gap.
The wage gap contributes to the higher statewide poverty rate among
women, which stands at 18 percent, compared to approximately 15
percent for men, and the poverty rate is even higher for women of
color and single women living with children.
   (c) California has prohibited gender-based pay discrimination
since 1949. Section 1197.5 of the Labor Code was enacted to redress
the segregation of women into historically undervalued occupations,
but it has evolved over the last four decades so that it is now
virtually identical to the federal Equal Pay Act of 1963 (29 U.S.C.
Sec. 206(d)). However, the state provisions are rarely utilized
because many loopholes make it nearly impossible to establish a
successful claim.
   (d) Pay secrecy also contributes to the gender pay gap, because
women cannot challenge pay discrimination that they do not know
exists. Although California law prohibits employers from banning pay
disclosures and retaliating against employees for engaging in this
activity, in practice many employees are unaware of these protections
and others are afraid to exercise these rights due to potential
retaliation.
   (e) To eliminate the gender wage gap in California, the state's
equal pay provisions and laws regarding pay disclosures must be
improved.
  SEC. 2.  Section 232 of the Labor Code is amended to read:
   232.   No   An  employer  may
  shall not  do any of the following:
   (a)  Require, as a condition of employment, that 
 Bar  an employee  refrain  from 
disclosing   disclosing, discussing, or inquiring about
 the amount of his or her  wages.   wages,
or from inquiring about or discussing the wages of other employees.

   (b) Require an employee to sign a waiver or other document that
purports to deny the employee the right to  disclose
  disclose, inquire about, or discuss  the amount
of his or her  wages.   wages, or to inquire
about or   discuss the wages of other employees. 
   (c) Discharge,  formally  discipline, or
otherwise discriminate against an employee who  discloses
  discloses, discusses, or inquires about  the
amount of his or her  wages.   wages, or who
discusses or inquires about   the wages of other employees.
 
   (d) An employer shall post a copy of this section and keep it
posted in a conspicuous location frequented by employees during the
hours of the workday. 
  SEC. 3.  Section 232.5 of the Labor Code is amended to read:
   232.5.   No   An  employer  may
  shall not  do any of the following:
   (a)  Require, as a condition of employment, that 
 Bar  an employee  refrain  from 
disclosing information about   disclosing, discussing,
or inquiring about  the employer's working conditions.
   (b) Require an employee to sign a waiver or other document that
purports to deny the employee the right to  disclose
  disclose, discuss, or inquire about  information
about the employer's working conditions.
   (c) Discharge,  formally  discipline, or
otherwise discriminate against an employee who  discloses
  discloses, discusses, or   inquires about
 information about the employer's working conditions.
   (d) This section is not intended to permit an employee to disclose
proprietary information, trade secret information, or information
that is otherwise subject to a legal privilege without the consent of
his or her employer. 
   (e)  An employer shall post a copy of this section and keep it
posted in a conspicuous location frequented by employees during the
hours of the workday. 
  SEC. 4.  Section 1197.5 of the Labor Code is amended to read:
   1197.5.  (a)  No   An  employer shall
 not  pay any  individual in the employer's employ
  employee  at wage rates less than the rates paid
to employees of the opposite sex  in the same establishment
 for  equal   comparable  work on
jobs the performance of which requires  equal  
comparable  skill, effort, and responsibility, and which are
performed under similar working conditions, except where  the
payment is made pursuant to a seniority system, a merit system, a
system which measures earnings by quantity or quality of production,
or a differential based on any bona fide factor other than sex.
  the employer demonstrates:  
   (1) The pay differential is based upon one or more of the
following factors:  
   (A) A seniority system.  
   (B) A merit system.  
   (C) A system that measures earnings by quantity or quality of
production.  
   (D) Work is performed at different geographic locations. 

   (E) Work is performed on different shifts or at different times of
day.  
   (2) Each factor relied upon is applied reasonably.  
   (3) The one or more factors relied upon account for the entire
differential. 
   (b) Any employer who violates subdivision (a) is liable to the
employee affected in the amount of the wages, and interest thereon,
of which the employee is deprived by reason of the violation, and in
an additional equal amount as liquidated damages.
   (c) The  provisions of   Division of Labor
Standards Enforcement shall administer and enforce  this
 section shall be administered and enforced by the Division
of Labor Standards Enforcement.   section.  If the
division finds that an employer has violated this section, it may
supervise the payment of wages and interest found to be due and
unpaid to employees under subdivision (a). Acceptance of payment in
full made by an employer and approved by the division shall
constitute a waiver on the part of the employee of the employee's
cause of action under subdivision (g).
   (d) Every employer shall maintain records of the wages and wage
rates, job classifications, and other terms and conditions of
employment of the persons employed by the employer. All of the
records shall be kept on file for a period of two years.
   (e) Any employee may file a complaint with the division that the
wages paid are less than the wages to which the employee is entitled
under subdivision (a).  These complaints   The
complaint  shall be investigated as provided in subdivision (b)
of Section 98.7. The  division shall keep confidential the 
name of any employee who submits to the division a complaint
regarding an alleged violation of subdivision (a)  shall be
kept confidential by the division  until  the division
establishes the  validity of the  complaint is
established by the division, or   complaint, 
unless the  division must abridge  confidentiality 
must be abridged by the division in order  to investigate
the complaint. The name of the complaining employee shall remain
confidential if the complaint is withdrawn before the confidentiality
is abridged by the division. The division shall take all proceedings
necessary to enforce the payment of any sums found to be due and
unpaid to these employees.
   (f) The department or division may commence and prosecute, unless
otherwise requested by the employee or affected group of employees, a
civil action on behalf of the employee and on behalf of a similarly
affected group of employees to recover unpaid wages and liquidated
damages under subdivision (a), and in addition shall be entitled to
recover costs of suit. The consent of any employee to the bringing of
any action shall constitute a waiver on the part of the employee of
the employee's cause of action under subdivision (g) unless the
action is dismissed without prejudice by the department or the
division, except that the employee may intervene in the suit or may
initiate independent action if the suit has not been determined
within 180 days from the date of the filing of the complaint.
   (g) Any employee receiving less than the wage to which the
employee is entitled under this section may recover in a civil action
the balance of the wages, including interest thereon, and an equal
amount as liquidated damages, together with the costs of the suit and
reasonable attorney's fees, notwithstanding any agreement to work
for a lesser wage.
   (h) A civil action to recover wages under subdivision (a) may be
commenced no later than two years after the cause of action occurs,
except that a cause of action arising out of a willful violation may
be commenced no later than three years after the cause of action
occurs.
   (i) If an employee recovers amounts due the employee under
subdivision (b), and also files a complaint or brings an action under
subdivision (d) of Section 206 of Title 29 of the United States Code
which results in an additional recovery under federal law for the
same violation, the employee shall return to the employer the amounts
recovered under subdivision (b), or the amounts recovered under
federal law, whichever is less.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.