Amended in Senate April 6, 2015

Senate Bill No. 358

Introduced by Senator Jackson

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(Coauthor: Assembly Member Gonzalez)

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February 24, 2015

An act to amend begin delete Sections 232, 232.5, and end delete begin insert Section end insert 1197.5 of the Labor Code, relating to private employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 358, as amended, Jackson. Conditions of employment: begin delete wages and working conditions: end delete 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 begin delete discharging end delete begin insert discriminating against end insert an employee for making such a disclosure. begin delete Existing law establishes similar prohibitions in connection with disclosing an employer’s workplace conditions. end delete

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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.

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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 begin delete “equal” work “and” equal skill, effort, and responsibility “with” comparable work “and” comparable skill, effort, and responsibility. end delete begin insert “equal work” with “work of a comparable character” “equal skill, effort, and responsibility” “comparable skill, effort, and responsibility.” end insert 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 begin insert a end insert seniority system, a merit system, a system that measures earnings by quantity or quality of production, begin delete or that work is performed at different geographic locations, on different shifts, or at different times of day. end delete begin insert cost-of-living differences due to geographic location, or a bona fide factor that is not based on or derived from a sex-based differential in compensation and is consistent with a business necessity, as defined. end insert 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. begin insert The bill would prohibit an employer from discharging, or in any manner discriminating or retaliating against, any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of these provisions. The bill would prohibit an employer from prohibiting an employee from disclosing the employee’s own wages, discussing the wages of others, or inquiring about another employee’s wages if the purpose of the disclosure, discussion, or inquiry is to invoke or enforce the rights granted by these provisions. end insert 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 begin delete 2013, end delete begin insert 2014, end insert 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 begin delete 77 end delete begin insert 78 end insert 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 begin delete $36,971,379,159 end delete begin insert $33,650,294,544 end insert 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.

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SEC. 2.  

Section 232 of the Labor Code is amended to read:

232.  

An employer shall not do any of the following:

(a) Bar an employee from disclosing, discussing, or inquiring
about the amount of his or her 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, inquire
about, or discuss the amount of his or her wages, or to inquire
about or discuss the wages of other employees.

(c) Discharge, discipline, or otherwise discriminate against an
employee who discloses, discusses, or inquires about the amount
of his or her 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.  

An employer shall not do any of the following:

(a) Bar an employee from 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, discuss,
or inquire about information about the employer’s working
conditions.

(c) Discharge, discipline, or otherwise discriminate against an
employee who 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.

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begin delete SEC. 4. end delete
begin insert SEC. 2. end insert   

Section 1197.5 of the Labor Code is amended to read:

1197.5.  

(a) An employer shall not pay any employee at wage
rates less than the rates paid to employees of the opposite sex for
begin delete comparable end delete work begin insert of a comparable character end insert on jobs the
performance of which requires comparable skill, effort, and
responsibility, and begin delete which end delete begin insert that end insert are performed under similar working
conditions, except where 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.

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(D) Work is performed at different geographic locations.

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(E) Work is performed on different shifts or at different times
of day.

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(D) Cost-of-living differences due to geographic location.

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(E) A bona fide factor that is not based on or derived from a
sex-based differential in compensation and is consistent with a
business necessity, such as a difference in education, training, or
experience that is job related with respect to the position in
question. For purposes of this subparagraph, “business necessity”
means an overriding legitimate business purpose such that the
factor relied upon is necessary to the safe and efficient operation
of the business, that the factor relied upon effectively fulfills the
business purpose it is supposed to serve, and there is no alternative
practice to the factor relied upon that would accomplish the
business purpose.

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(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
begin delete in end delete an additional equal amount as liquidated damages.

(c) The Division of Labor Standards Enforcement shall
administer and enforce this 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). 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) until the division establishes the validity of the complaint,
unless the division must abridge confidentiality 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.

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(j) An employer shall not discharge, or in any manner
discriminate or retaliate against, any employee by reason of any
action taken by the employee to invoke or assist in any manner the
enforcement of this section. An employer shall not prohibit an
employee from disclosing the employee’s own wages, discussing
the wages of others, or inquiring about another employee’s wages
if the purpose of the disclosure, discussion, or inquiry is to invoke
or enforce the rights granted by this section. Nothing in this section
creates an obligation to disclose wages.

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(k) As used in subdivision (a), “work of a comparable
character” means work, the requirements of which, are
substantially equivalent when viewed as a composite of level of
skills, effort, responsibility, and working conditions.

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begin delete SEC. 5. end delete
begin insert SEC. 3. end insert   

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.