BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 358 (Jackson)
Version: April 6, 2015
Hearing Date: April 28, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Conditions of employment: gender wage differential
DESCRIPTION
This bill would revise the California Equal Pay Act to prohibit
an employer from paying any of its employees at wage rates less
than rates paid to employees of the opposite sex for
substantially similar work, when viewed as a composite of skill,
effort, and responsibility, and performed under similar working
conditions. This bill would revise the "bona fide factor"
exception in existing law to require the employer to prove: (1)
the factor is not based on or derived from a sex-based
differential in compensation and is consistent with a business
necessity, as specified, such as a difference in education,
training, or experience that is job related with respect to the
position in question; (2) each factor relied upon is applied
reasonably; and (3) the factors relied upon account for the
entire pay differential. This bill would also prohibit
discrimination or retaliation against an employee who inquires
about the wages paid to other employees.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
The California Equal Pay Act (Act) was first established in 1949
and requires that men and women in the same workplace be given
equal pay for equal work. Although the Act requires
gender-neutral pay practices, studies show that women are still
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paid less than their male counterparts, resulting in what is
referred to as the "gender wage gap." The term "gender wage
gap" refers to the difference in earnings between male and
female workers.
Each year, the United States Census Bureau and the United States
Bureau of Labor Statistics provide an estimate of the wage gap
using annual earnings based on the Current Population Survey
Annual Social and Economic Supplement data. Although the gender
wage gap has narrowed since the 1960s, after the passage of the
federal Equal Pay Act of 1963 (EPA), female workers nationwide
earned 78 percent of what male workers were paid as of 2013.
(DeNavas-Walt, Carmen, and Proctor, Income, Poverty, and Health
Insurance Coverage in the United States: 2013 (2014) U.S. Census
Bureau, Current Population Reports (Sept. 2014)
[as of
Apr. 23, 2014) p. 10.) This translates into a wage gap of 22
cents. In 2014, the gender wage gap in California stood at 16
cents on the dollar. (AAUW, The Gender Pay Gap: California
(Sept. 2014) [as of Apr. 23, 2015].)
Recent federal legislation has been attempted to eliminate the
national gender wage gap. The Pay Check Fairness Act (H.R.
377/S. 844, 113th Congress) would have increased penalties for
employers who pay different wages to men and women for "equal
work" and would add programs for training, research, technical
assistance, and pay equity employer recognition awards. Those
bills, among other things, would have provided safeguards to
protect employees from retaliation for making inquiries or
disclosures concerning employee wages. Those bills would also
have established more restrictive standards by requiring an
employer to establish that a factor used by the employer to pay
an employee more than an employee of the opposite sex was job
related, consistent with business necessity, and not derived
from a sex-based differential in compensation, and that the
employer's purpose could not be accomplished by less
discriminatory alternative means.
The Fair Pay Act (H.R. 438/S. 168, 113th Congress) would have
expanded the scope of the EPA to include racial and ethnic
minority protection and narrowed the "factors other than sex"
upon which an employer could rely to justify a wage
differential. Those bills would also have substituted
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"equivalent jobs" for an "equal" work standard. Equivalent jobs
are those whose composite of skill, effort, responsibility, and
working conditions are equivalent in value (or worth to the
employer), even if the jobs are dissimilar. Those prior federal
efforts failed to move out of their respective houses. The Fair
Pay Act has been reintroduced this year as H.R. 1787 (Norton,
114th Congress) and is in its first committee.
This bill seeks to eliminate the gender wage gap by prohibiting
pay differentials between men and women for substantially
similar work, as well as prohibiting retaliation against
employees who discuss their wages.
This bill was heard by the Senate Labor and Industrial Relations
Committee on April 22, 2015, and passed out on a vote of 4-0.
CHANGES TO EXISTING LAW
Existing law , the California Equal Pay Act (Act), prohibits an
employer from paying any 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, 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. (Lab. Code Sec. 1197.5(a).)
Existing law provides that any employer who discriminates in the
payment of wages based on gender 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. (Lab. Code
Sec. 1197.5(b).)
Existing law requires the Division of Labor Standards
Enforcement (DLSE) to administer and enforce the Act. (Lab.
Code Sec. 1197.5(c).)
Existing law requires every employer to maintain records of the
wages and wage rates, job classifications, and other terms and
conditions of employment of the persons employed by the
employer, which must be kept on file for two years. (Lab. Code
Sec. 1197.5(d).)
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Existing law authorizes any employee to file a complaint with
the DLSE that the wages paid are less than the wages to which
the employee is entitled under the Act, and the DLSE is required
to investigate these complaints, as specified. (Lab. Code Sec.
1197.5(e).)
Existing law authorizes the Department of Industrial Relations
(DIR) or the DLSE to 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 for violations of the Act, and are
entitled to recover costs of suit. (Lab. Code Sec. 1197.5(f).)
Existing law provides that 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.
(Lab. Code Sec. 1197.5(g).)
Existing law provides that a civil action to recover wages under
the Act 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. (Lab. Code Sec. 1197.5(h).)
This bill would prohibit an employer from paying any of its
employees at wage rates less than the rates paid to employees of
the opposite sex for substantially similar work, when viewed as
a composite of skill, effort, and responsibility, and performed
under similar working conditions, except where the employer
demonstrates:
the pay differential is based upon one or more of the
following factors:
o a seniority system;
o a merit system;
o a system that measures earnings by quantity or quality
of production; or
o 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, such as
a difference in education, training, or experience that
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is job related with respect to the position in question;
each factor relied upon is applied reasonably; and
the one or more factors relied upon account for the entire
pay differential.
This bill would extend the employer's record retention
requirement from two to three years.
This 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 the Act.
This bill would make it unlawful for an employer to 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.
This bill would extend the existing enforcement mechanisms, as
specified, for wage discrimination under the Act to claims for
retaliation, and would provide a one-year statute of limitations
for retaliation claims.
This bill would authorize any employee who has been discharged,
discriminated or retaliated against, in the terms and conditions
of his or her employment because the employee engaged in any
conduct delineated in the Act to recover in a civil action
reinstatement and reimbursement for lost wages and work
benefits, caused by the acts of the employer, including interest
thereon, as well as appropriate equitable relief.
This bill would require a civil action to recover wages for
retaliation to be commenced no later than one-year after the
cause of action occurs.
This bill would make various related legislative findings and
declarations and make several technical, non-substantive
changes.
COMMENT
1. Stated need for the bill
The author writes:
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Working women in California continue to make less than men for
the same or substantially equal work. The persistent
disparity in earnings across every occupation has a
significant impact on the welfare and economic security of
millions of women and their families in our state and
contributes to the higher poverty rate among women-especially
among women of color and single women living with children.
As a group, working women in California lose over $33 billion
each year due to the wage gap. In 2013, the average woman in
California working full-time, year-round earned a median of 84
cents to every dollar earned by a man. The problem is even
worse for women of color: for example, African American and
Latina women working full-time in California make an average
of just 64 cents and 44 cents, respectively, for every dollar
earned by white men. California has the worst Latina gender
wage gap in the nation.
SB 358 will strengthen the state's existing equal pay law by
eliminating loopholes that prevent effective enforcement and
empower employees to discuss pay without fear of retaliation.
Bet Tzedek Legal Services, in support, writes: "We see on a
daily basis how the pay disparity affects women's everyday
lives. Over 66 percent of our clients are low-income women,
often women of color and single women living with children. In
our employment unit, we regularly represent women who are not
only paid below the minimum wage, but even within that setting
are paid far less than their underpaid male counterparts. In
this low-wage context, any disparity in pay can be the
difference in whether or not they can make rent or buy
groceries. For our clients, this issue is far from symbolic."
2. Burdens of proof
In order for a plaintiff employee to allege a wage gap claim,
the California Equal Pay Act (Act) requires the plaintiff to
prove that the employer is discriminating against the employee
based on gender because the employee is paying an employee of
the opposite sex wage rates that are higher than those paid to
the plaintiff for work performed in the same establishment for
equal work on jobs which require equal skill, effort, or
responsibility and which are performed under similar working
conditions. The burden of proof then shifts to the defendant
employer to disprove wage discrimination by showing that the
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wages were paid 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. This bill would revise those burdens of proof
in several significant ways, discussed further below.
a. Plaintiff employee's burden of proof
This bill would clarify and update the burden of proof on the
plaintiff in several ways. First, the bill would eliminate
the restriction that a plaintiff employee can only make a wage
gap claim based on the wages of workers in the same
establishment. The California Employment Lawyers Association
(CELA) argues that the same establishment requirement in
existing law is outdated and contributes to the difficulty of
female workers to enforce California's equal pay laws. As an
example, CELA states the "'same establishment" provision could
prevent a woman who works at a facility in Oakland, California
from comparing her pay to that of a man who works in the same
position and for the same company, but at a facility a mile
away in Berkeley." This bill would allow that woman to
substantiate a wage gap claim by comparing her wages to those
paid to the men in the other facility. Notably, this bill
would not alter the ability of an employer to provide a bona
fide factor for paying different wages based on the cost of
living if the claim was made comparing the wages in one
facility located in a rural community with a lower cost of
living against another facility located in an expensive city.
Second, this bill would clarify the scope of a wage gap claim
by basing the job comparison on substantially similar work,
when viewed as a composite of skill, effort, and
responsibility. Existing case law has developed in such a way
as to make it unclear whether "equal work" means exactly the
same job or substantially similar job. Given the various ways
in which one person, who is performing primarily the same job
as another person of the opposite sex, could have one or two
additional duties that are secondary to his or her primary
duties, it is arguably appropriate to expand the scope of the
meaning of work. An example of this issue is where a female
secretary's primary duties are to answer telephone calls, make
copies of documents, and transmit correspondence. A male
assistant, however, answers telephone calls and transmits
documents, but he performs light filing tasks. The plaintiff
in this case would not have to prove that the jobs were equal
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in order to be paid the same wages; rather, the plaintiff's
burden would be to show that the man and woman should be paid
the same wages because, when viewed as a composite of skill,
effort, and responsibility, they were performing substantially
similar jobs. In this way, the bill would better accomplish
the intended equality goals of the Act by requiring the
plaintiff to prove the job performed by the plaintiff is
substantially similar to the job performed by another employee
of the opposite sex.
b. Defendant employer's burden of proof
Existing law provides a defendant employer with four reasons
for which the employer may claim a legitimate wage disparity -
seniority, merit, a system which measures earnings by quantity
or quality of production, or a differential based on any bona
fide factor other than sex. This bill would revise the
affirmative defenses that may be used by an employer to
disprove a plaintiff's claim of wage discrimination.
Business & Professional Women of Nevada County, in support,
argue that "[c]learly, current laws have been ineffective in
closing the gender-based pay gap. The [Act] has been in
effect for over 65 years, with the last revision in 1985. Its
protections sorely need to be strengthened and updated, with
an eye to current employment and human resources practices.
Loopholes or outdated provisions that prevent effective
enforcement in today's labor markets must be recognized and
eliminated." Proponents argue that the loopholes in the law
are contained within the "bona fide factor" affirmative
defense, which requires very little evidence of legitimacy.
Further, proponents contend that because the "bona fide factor
loophole" is so broad and ambiguous, most wage gap claims do
not survive summary judgment resulting in continued wage
disparity. Proponents also argue that, because existing law
fails to require the employer to provide legitimate, business
related reasons for wage disparities, employers are not
encouraged to examine their pay practices, before a wage
discrimination claim is even necessary, to make sure they are
paying their workers equal wages.
This bill seeks to close the bona fide factor loopholes by
requiring an employer, who claims the affirmative defense of
bona fide factor, to provide evidence that the bona fide
factor is not based on or derived from a sex-based
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differential in compensation and is consistent with a business
necessity. The bill would provide that differences in
education, training, or experience would be legitimate bona
fide factors, in order to provide the court and parties to the
action guidance on acceptable, non-gender based factors. This
bill would also provide a definition of "business necessity"
that is consistent with case law and the California Code of
Regulations, Title 2, Division 4.1, Subchapter 2, Article 1,
Section 11010.
Notably, Section 11010 provides that the bona fide factor "may
still be impermissible where it is shown that there is an
alternative practice that would accomplish the business
purpose equally well with a lesser discriminatory impact."
Although most case law attributes this proof of an alternative
practice to the plaintiff to rebut the defendant's affirmative
defense, that section does not assign responsibility for
making this claim. This bill would take the alternative
practice provision and affirmatively assign it to the employer
to prove.
The author argues that requiring the employer to show that the
pay practice utilized by the employer does not result in a
discriminatory wage disparity accomplishes two important
purposes. One, it would encourage employers to prospectively
examine their pay practices, prior to a plaintiff having to
make a wage claim, and determine whether the practice is
discriminatory based on gender. An example of a current
problem with employer wage practices is the practice of basing
a starting salary on the employee's prior salary. Proponents
argue that the job market is inherently gender-biased, as
proven by the continued wage gap, currently at 16 percent.
The author argues that employers should have control over the
way they determine wages, and the employers should be choosing
methods that do not have intentional or inherent wage
discrimination.
Second, a defendant employer is in the best position to
determine the facts regarding its pay practices, so the
employer should provide that evidence to the court. On the
other hand, requiring the plaintiff to attempt to invalidate
an unknown pay practice, to which the bona fide factor is then
added, is unrealistic. Accordingly, this bill would place the
burden on the employer to prove that the practice used by the
employer was non-discriminatory, serves the legitimate
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business purpose, and there was no alternative practice that
would serve that purpose without producing a compensation
differential. In order to provide employees better protection
from wage discrimination, this bill provides better
specificity to the employer's burden of proving a lawful
reason for a wage disparity.
3. Retaliation protections
The Act does not currently provide for discrimination or
retaliation protection to an employee who inquires about his or
her wages in order to determine whether he or she is being paid
wages less than those paid to employees of the opposite sex.
This bill would prohibit an employer from discharging,
discriminating, or retaliating against an employee because the
employee engaged in conduct protected under the Act.
CELA argues that "[o]ne obstacle to effective enforcement [of
the Act] is that pay discrimination often is 'hidden from
sight.' The current culture of pay secrecy undermines attempts
to reduce the wage gap. Studies have found that a majority of
employees are either prohibited or actively discouraged from
discussing their pay. Workers are less likely to inquire about
pay if they fear retaliation from their employer for doing so.
This secrecy means that workers are unlikely even to discover
ongoing pay discrimination, much less to be able to fight
against it."
Further, the Legal Aid Society - Employment Law Center,
co-sponsor, states that "[o]ur organization has worked directly
on cases involving state and federal equal pay violations. The
deleterious effects that pay inequities have on our clients and
their families are devastatingly clear. Unfortunately,
identifying such unlawful pay violations can be quite difficult
for our clients, most of whom simply are not privy to
information regarding their employer's pay practices and are
reluctant to seek out this information for fear of retaliation.
. . . By strengthening the enforcement of existing equal pay
legislation and empowering workers to gather information and
self-advocate, SB 358 is an important step forward in closing
the wage gap."
This bill seeks to strengthen the Act by helping employees gain
access to wage rate information to determine whether they are
being paid unequally based on gender. This bill would also
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authorize the employee to file a complaint with the Division of
Labor Standards and Enforcement for enforcement of the Act, as
well as provide for a civil action for enforcement that must be
filed within one year of the retaliation, discharge, or
discriminatory act made against the employee.
4. Author's amendments
In order to address concerns raised by opponents, the author
offers amendments in Committee that would:
simplify the characteristics of the work being compared
between the plaintiff and employee of the opposite sex;
simplify the factors upon which the employer could lawfully
rely when determining wage rates paid to employees;
simplify the definition of business necessity; and
clarify the employer's burden of proof.
The amendments also extend the employer's record retention
requirement from two to three years, and provide for retaliation
claims enforcement, including a one-year statute of limitations
for bringing a civil action.
5. Oppositions' concerns
The California Chamber of Commerce and Civil Justice Association
of California, opposed unless amended, raise concerns regarding
the bill's use of, and definitions for, "work of a comparable
character" and "business necessity." The author is offering
amendments in Committee to remove the provisions for work of a
comparable character in favor of the opposition's preference of
"substantially similar work." The author is also amending the
bill to remove the "safe and efficient operation of the
business" provision from the definition of "business necessity."
The author is also taking several other technical amendments
requested by the opposition.
The opposition also expressed concern about requiring an
employer to prove a negative, that no other alternative practice
could have been used to determine employee wages, which, they
argue, would be extremely difficult and unlikely for the
employer to accomplish. The opposition prefers to delete the
"no alternative practice language" provision in its entirety,
which would maintain the existing burden of proving an
alternative practice that is currently required to be proven by
the plaintiff employee. In response, the author is amending the
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bill to allow the employer to prove that no alternative practice
would serve the same legitimate business purpose without
producing a compensation differential. The author believes that
the responsibility for ensuring non-discriminatory business
practices rests on the employer, and the employee should not
have to prove that the employer could have found another way to
pay wages that would not have resulted in discriminatory
compensation.
The National Federation of Independent Business, also in
opposition, argues that this bill would give employees
full-scale decision making authority and the ability to adjust
elements of employment positions that already have fair state
and federal protections. They argue this bill would increase
frivolous lawsuits against small employers and only serves to
advance financial gain for attorneys without solving any
workplace problems.
Support : 9to5 California, National Association of Working
Women; 9to5, National Association of Working Women; American
Association of University Women - California; Bet Tzedek Legal
Services; Business & Professional Women of Nevada County;
California Federation of Teachers, AFT, AFL-CIO; California
Labor Federation, AFL-CIO; California Nurses Association;
California Rural Legal Assistance Foundation, Inc.; California
Women Lawyers; California Women's Law Center; Centro Legal de la
Raza; Communications Workers of America, ALF-CIO, District 9;
Communications Workers of America, AFL-CIO, CLC Local 9003;
Community Action Fund of Planned Parenthood of Orange and San
Bernardino Counties; Consumer Attorneys of California; County of
Santa Cruz, Board of Supervisors; Glendale City Employees
Association; La Raza Centro Legal; Maintenance Cooperation Trust
Fund; National Council of Jewish Women-CA; National Partnership
for Women & Families; National Women's Law Center; Organization
of SMUD Employees; Planned Parenthood Action Fund of Santa
Barbara, Ventura & San Luis Obispo Counties; Planned Parenthood
Action Fund of the Pacific Southwest; Planned Parenthood
Affiliates of California; Planned Parenthood Northern California
Action Fund; San Bernardino Public Employees Association; San
Diego County Court Employees Association; San Luis Obispo County
Employees Association; Women In Non Traditional Employment
Roles; Women's Foundation of California; Women's Law Project; 82
individuals
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Opposition : California Chamber of Commerce; Civil Justice
Association of California; National Federation of Independent
Business
HISTORY
Source : California Employment Lawyers Association; Equal Rights
Advocates; Legal Aid Society-Employment Law Center
Related Pending Legislation :
AB 1354 (Dodd, 2015) would enact the Equal Pay for Equal Work
Act of 2015 and require an employer with 100 or more employees,
prior to becoming a contractor or subcontractor with the state,
to submit an income equality program to the Department of Fair
Employment and Housing for approval and certification and
require the income equality program to include the collection of
summary data on the compensation paid to employees, including
data sorted by gender and race, and policies designed to ensure
income equality and prevent unlawful discrimination. AB 1354 is
currently in the Assembly Appropriations Committee.
ACR 50 (Gonzalez, 2015) would proclaim April 14, 2015, as Equal
Pay Day in recognition of the need to eliminate the gender gap
in earnings by women and to promote policies to ensure equal pay
for all. ACR 50 is currently on the Senate Floor.
Prior Legislation :
AB 2555 (Oropeza, 2006) would have revised the California Equal
Pay Act to authorize an award of civil penalties to be paid to
the Labor and Workforce Development Agency and would have
required specified employers to provide annual statements to
employees setting forth job title, wage rate, and how the wages
were calculated. AB 2555 would have required the creation of
the Equal Pay Commission to study and report wage disparities
between men and women and between minorities and nonminorities.
Governor Schwarzenegger vetoed this bill because he believed
that, although the historical trend of women earning less than
men for doing the same work must be stopped, the provisions of
the bill would not help achieve this goal. Governor
Schwarzenegger noted that both state and federal law already
provide criminal and civil penalties for an employer that pays
discriminatory wage rates to employees on account of gender,
which were increased significantly in 2003. Since then, there
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had been only 15 gender-based wage discrimination complaints
filed with the Labor Commissioner, which Governor Schwarzenegger
said suggested that increased civil penalties are not the best
way to ensure wage equity; rather the provisions of the bill
would do little more than increase frivolous litigation, a
result that benefits no employer or worker, regardless of
gender.
AB 169 (Oropeza, 2005) would have authorized an award of EPA
violation civil penalties with 75 percent of the penalties going
to the DLSE and 25 percent going to the employee. Governor
Schwarzenegger vetoed this bill because, although he remained
supportive of reasonable efforts to eradicate the historical
trend of women earning less than men for doing the same work, he
did not believe the bill was necessary in order to achieve this
goal. Governor Schwarzenegger then noted that current state and
federal laws forbid paying an individual lower wages on account
of gender and provide stiff civil and criminal penalties against
employers that do so. He argued that the bill's elimination of
judicial discretion to modify the penalty coupled with the
massive increases in fines would do nothing more than increase
frivolous litigation and could lead to the same shakedown
lawsuits that the citizens of California voted to curb when they
passed Proposition 64 in 2004.
AB 2317 (Oropeza, 2004) would have increased liquidated damages
payable by an employer to an employee for violating the
California EPA, from an amount equal to the pay differential to
treble that amount. AB 2317 would have further increased the
liquidated damages to five times the amount of the pay
differential, if it is determined that the employer willfully
violated this provision. Governor Schwarzenegger vetoed the
bill because he did not believe it was necessary in order to
achieve pay equity. He noted that current state and federal
laws forbid and provide civil and criminal penalties for an
employer that pays discriminatory wage rates to employees on
account of gender, and the civil penalty for violation of the
equal pay requirement was doubled in 2003. He also noted that
he recently signed SB 1809 (Dunn, Ch. 221, Stats. 2004), which
classified the violation of equal pay requirements as one of the
more serious labor law violations for which an employee can
bring a private civil action. He wanted to allow these new laws
time to work before considering additional penalties.
Prior Vote : Senate Labor and Industrial Relations Committee
SB 358 (Jackson)
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(Ayes 4, Noes 0)
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