REPORT TITLE:
Pay Equity


DESCRIPTION:
Prohibits wage discrimination due to sex, race, and ancestry.
Establishes exemptions. Defines terms.  Establishes employer
recordkeeping requirements.  Grants rulemaking authority to the
director of labor and industrial relations.  (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO EMPLOYMENT PRACTICES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds the following:
 
 2      (1)  Despite federal and state laws banning discrimination
 
 3           in employment and pay, in both the private and public
 
 4           sector, wage differentials persist between women and
 
 5           men and between minorities and nonminorities in the
 
 6           same jobs and in jobs that are dissimilar but that
 
 7           require equivalent composites of skill, effort,
 
 8           responsibility, and working conditions;
 
 9      (2)  The existence of such wage differentials:
 
10           (A)  Depresses wages and living standards for employees
 
11                necessary for their health and efficiency;
 
12           (B)  Reduces family incomes and contributes to the
 
13                higher poverty rates among female-headed and
 
14                minority households;
 
15           (C)  Prevents the maximum utilization of the available
 
16                labor resources;
 
17           (D)  Tends to cause labor disputes, thereby burdening,
 
18                affecting, and obstructing commerce;
 
19           (E)  Constitutes an unfair method of competition; and
 

 
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 1           (F)  Constitutes a discriminatory practice;
 
 2      (3)  Discrimination in wage-setting practices has played a
 
 3           role in depressing wages for women and minorities
 
 4           generally;
 
 5      (4)  Many individuals work in occupations that are dominated
 
 6           by individuals of their same sex, race, and ancestry,
 
 7           and discrimination in hiring, job assignment, and
 
 8           promotion has played a role in establishing and
 
 9           maintaining segregated work forces; and
 
10      (5)  Eliminating discrimination in compensation based on
 
11           sex, race, and ancestry would have positive effects,
 
12           including:
 
13           (A)  Providing a solution to problems in the economy
 
14                created by discriminatory wage differentials;
 
15           (B)  Reducing the number of working women and people of
 
16                color earning low wages, thereby lowering their
 
17                incidence of poverty during normal working years
 
18                and in retirement; and
 
19           (C)  Promoting stable families by raising family
 
20                incomes.
 
21      SECTION 2.  Chapter 378, Hawaii Revised Statutes, is amended
 
22 by adding two new sections to be appropriately designated and to
 
23 read as follows:
 

 
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 1      "§378-    Wage disclosure; recordkeeping; and reporting
 
 2 requirements.  (a)  Upon commencement of an individual's
 
 3 employment and at least annually thereafter, every employer of
 
 4 twenty-five or more employees shall provide to each employee a
 
 5 written statement sufficient to inform the employee of the
 
 6 employee's job title, wage rate, and the method of calculating
 
 7 the wage.  The notice shall be supplemented whenever an employee
 
 8 is promoted or reassigned to a different position with the
 
 9 employer; provided however that the employer is not required to
 
10 issue supplemental notifications for temporary reassignments that
 
11 are no greater than three months in duration.
 
12      (b)  Every employer of twenty-five or more employees shall
 
13 make and preserve records that document the wages paid to
 
14 employees and the method, system, calculations, and other bases
 
15 used to establish, adjust, and determine the wage rates paid to
 
16 the employer's employees.  Every employer of twenty-five or more
 
17 employees shall preserve the records and make reports of the
 
18 information required by this section to the director for periods
 
19 determined by the director.
 
20      (c)  The rules adopted under this section shall provide for
 
21 the protection of confidentiality of employees, and shall
 
22 expressly require that reports shall not include the names or
 
23 other identifying information from which readers can discern the
 

 
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 1 identities of employees.  The rules may also identify
 
 2 circumstances that warrant a prohibition on disclosing reports or
 
 3 information identifying the employer.
 
 4      (d)  The director may use the information and data collected
 
 5 pursuant to this section for enforcement, statistical, and
 
 6 research purposes, and may compile and publish studies, analyses,
 
 7 reports, and surveys based on the information and data that the
 
 8 director deems appropriate.
 
 9      §378-    Rules.  The director of labor and industrial
 
10 relations shall adopt rules as the director deems necessary for
 
11 the purpose of carrying out section 378-     specifying the
 
12 criteria for determining whether a job is dominated by employees
 
13 of a particular sex, race, or ancestry.  Criteria shall include
 
14 factors such as whether the job has ever been formally classified
 
15 as or traditionally considered to be a "male" or "female" or
 
16 "white" or "minority" job, whether there is a history of
 
17 discrimination against women or minority groups with regard to
 
18 wages, assignment, or access to jobs, or other terms and
 
19 conditions of employment, and the demographic composition of the
 
20 work force in equivalent jobs."
 
21      SECTION 3.  Section 378-1, Hawaii Revised Statutes, is
 
22 amended by adding a new definition to be appropriately inserted
 
23 and to read as follows:
 

 
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 1      ""Equivalent jobs" means jobs or occupations that are the
 
 2 same or similar in skill, effort, or responsibility, or jobs or
 
 3 occupations that are dissimilar but whose requirements are
 
 4 equivalent, when viewed as a composite of skills, effort,
 
 5 responsibility, and working conditions."
 
 6      SECTION 4.  Section 378-2, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "§378-2 Discriminatory practices made unlawful; offenses
 
 9 defined.  It shall be an unlawful discriminatory practice:
 
10      (1)  Because of race, sex, sexual orientation, age,
 
11           religion, color, ancestry, disability, marital status,
 
12           or arrest and court record:
 
13           (A)  For any employer to refuse to hire or employ or to
 
14                bar or discharge from employment, or otherwise to
 
15                discriminate against any individual in
 
16                compensation or in the terms, conditions, or
 
17                privileges of employment;
 
18           (B)  For any employment agency to fail or refuse to
 
19                refer for employment, or to classify or otherwise
 
20                to discriminate against, any individual;
 
21           (C)  For any employer or employment agency to print,
 
22                circulate, or cause to be printed or circulated
 
23                any statement, advertisement, or publication or to
 

 
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 1                use any form of application for employment or to
 
 2                make any inquiry in connection with prospective
 
 3                employment, which expresses, directly or
 
 4                indirectly, any limitation, specification, or
 
 5                discrimination;
 
 6           (D)  For any labor organization to exclude or expel
 
 7                from its membership any individual or to
 
 8                discriminate in any way against any of its
 
 9                members, employer, or employees; or
 
10           (E)  For any employer or labor organization to refuse
 
11                to enter into an apprenticeship agreement as
 
12                defined in section 372-2; provided that no
 
13                apprentice shall be less than sixteen years of
 
14                age;
 
15      (2)  For any employer, labor organization, or employment
 
16           agency to discharge, expel, or otherwise discriminate
 
17           against any individual because the individual has
 
18           opposed any practice forbidden by this part or has
 
19           filed a complaint, testified, or assisted in any
 
20           proceeding respecting the discriminatory practices
 
21           prohibited under this part;
 
22      (3)  For any person whether an employer, employee, or not,
 
23           to aid, abet, incite, compel, or coerce the doing of
 

 
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 1           any of the discriminatory practices forbidden by this
 
 2           part, or to attempt to do so;
 
 3      (4)  For any employer to violate the provisions of section
 
 4           121-43 relating to nonforfeiture for absence by members
 
 5           of the national guard;
 
 6      (5)  For any employer to refuse to hire or employ or to bar
 
 7           or discharge from employment, any individual because of
 
 8           assignment of income for the purpose of satisfying the
 
 9           individual's child support obligations as provided for
 
10           under section 571-52; [or]
 
11      (6)  For any employer, labor organization, or employment
 
12           agency to exclude or otherwise deny equal jobs or
 
13           benefits to a qualified individual because of the known
 
14           disability of an individual with whom the qualified
 
15           individual is known to have a relationship or
 
16           association[.]; or
 
17      (7)  For an employer to discriminate between employees, or
 
18           for a labor organization to cause or attempt to cause
 
19           an employer to discriminate between employees, on the
 
20           basis of sex, race, and ancestry by:
 
21           (A)  Paying wages to employees at a rate less than the
 
22                rate paid to employees of the opposite sex or of a
 
23                different race or ancestry for work in equivalent
 

 
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 1                jobs; or
 
 2           (B)  Paying wages to employees in a job that is
 
 3                dominated by employees of a particular sex, race,
 
 4                or ancestry at a rate less than the rate at which
 
 5                the employer pays to employees in another job that
 
 6                is dominated by employees of the opposite sex or
 
 7                of a different race or ancestry, for work on
 
 8                equivalent jobs;
 
 9           provided that it shall not be an unlawful
 
10           discriminatory practice for an employer to pay
 
11           different wage rates to employees, where the payments
 
12           are made pursuant to a bona fide seniority or merit
 
13           system; a system that measures earnings by quantity or
 
14           quality of production; or any bona fide factor other
 
15           than sex, race, or ancestry."
 
16      SECTION 5.  Section 378-5, Hawaii Revised Statutes, is
 
17 amended by amending subsection (b) to read as follows:
 
18      "(b)  In any civil action brought under this part, if the
 
19 court finds that a respondent has engaged in or is engaging in
 
20 any unlawful discriminatory practice as defined in this part, the
 
21 court may enjoin the respondent from engaging in such unlawful
 
22 discriminatory practice and order such affirmative action as may
 
23 be appropriate, which may include, but is not limited to,
 

 
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 1 reinstatement, hiring, or upgrading of employees, with or without
 
 2 backpay, or restoration of membership in any respondent labor
 
 3 organization, or any other equitable relief the court deems
 
 4 appropriate.  Backpay liability shall not accrue from a date more
 
 5 than two years prior to the filing of the complaint with the
 
 6 commission.  No employer who is paying wages in violation of
 
 7 section 378-2(7) shall reduce the wage of any employee in order
 
 8 to comply with this chapter."
 
 9      SECTION 6.  Statutory material to be repealed is bracketed.
 
10 New statutory material is underscored.
 
11      SECTION 7.  This Act shall take effect upon its approval.