BILL NUMBER: SB 358	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 6, 2015

INTRODUCED BY   Senator Jackson
    (   Coauthor:   Assembly Member  
Gonzalez   ) 

                        FEBRUARY 24, 2015

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



	LEGISLATIVE COUNSEL'S DIGEST


   SB 358, as amended, 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   discriminating
against  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.   "equal
work" with "work of a comparable character" "equal skill, effort, and
responsibility" "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  a 
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.   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.  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.  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.  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,   2014,  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   78  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  
$33,650,294,544  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.  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. 
   SEC. 4.   SEC. 2.   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
 comparable  work  of a comparable character
 on jobs the performance of which requires comparable skill,
effort, and responsibility, and  which   that
 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. 
   (D) Work is performed at different geographic locations. 

   (E) Work is performed on different shifts or at different times of
day.  
   (D) Cost-of-living differences due to geographic location. 

   (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. 
   (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 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. 
   (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.  
   (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. 
   SEC. 5.   SEC. 3.   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.