Pay Equity

Prohibits wage discrimination due to sex, race, and national
origin.  Establishes exemptions. Defines terms.  Establishes
employer recordkeeping requirements.  Grants rulemaking authority
to the director of labor and industrial relations.

THE SENATE                              S.B. NO.           820
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 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 national
 7           origin, and discrimination in hiring, job assignment,
 8           and 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 national origin would have positive
12           effects, 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
 4 subject to this chapter shall provide to each employee a written
 5 statement sufficient to inform the employee of the employee's job
 6 title, wage rate, and the method of calculating the wage.  The
 7 notice shall be supplemented whenever an employee is promoted or
 8 reassigned to a different position with the employer; provided
 9 however that the employer is not required to issue supplemental
10 notifications for temporary reassignments that are no greater
11 than three months in duration.
12      (b)  Every employer subject to this chapter shall make and
13 preserve records that document the wages paid to employees and
14 the method, system, calculations, and other bases used to
15 establish, adjust, and determine the wage rates paid to the
16 employer's employees.  Every employer subject to this chapter
17 shall preserve the records and make reports for periods
18 determined by the director.
19      (c)  The rules adopted under this section shall provide for
20 the protection of confidentiality of employees, and shall
21 expressly require that reports shall not include the names or
22 other identifying information from which readers can discern the
23 identities of employees.  The rules may also identify

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

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 1 within the meaning of the federal Equal Pay Act of 1963, 29
 2 U.S.C. 206(d), or jobs or occupations that are dissimilar but
 3 whose requirements are equivalent, when viewed as a composite of
 4 skills, effort, responsibility, and working conditions.
 5      "Market rates" means the rates that employers within a
 6 prescribed geographic area actually pay, or are reported to pay
 7 for specific jobs, as determined by formal or informal surveys,
 8 wage studies, or other means."
 9      SECTION 4.  Section 378-2, Hawaii Revised Statutes, is
10 amended to read as follows:
11      "378-2 Discriminatory practices made unlawful; offenses
12 defined.  It shall be an unlawful discriminatory practice:
13      (1)  Because of race, sex, sexual orientation, age,
14           religion, color, ancestry, disability, marital status,
15           or arrest and court record:
16           (A)  For any employer to refuse to hire or employ or to
17                bar or discharge from employment, or otherwise to
18                discriminate against any individual in
19                compensation or in the terms, conditions, or
20                privileges of employment;
21           (B)  For any employment agency to fail or refuse to
22                refer for employment, or to classify or otherwise
23                to discriminate against, any individual;

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 1           (C)  For any employer or employment agency to print,
 2                circulate, or cause to be printed or circulated
 3                any statement, advertisement, or publication or to
 4                use any form of application for employment or to
 5                make any inquiry in connection with prospective
 6                employment, which expresses, directly or
 7                indirectly, any limitation, specification, or
 8                discrimination;
 9           (D)  For any labor organization to exclude or expel
10                from its membership any individual or to
11                discriminate in any way against any of its
12                members, employer, or employees; or
13           (E)  For any employer or labor organization to refuse
14                to enter into an apprenticeship agreement as
15                defined in section 372-2; provided that no
16                apprentice shall be less than sixteen years of
17                age;
18      (2)  For any employer, labor organization, or employment
19           agency to discharge, expel, or otherwise discriminate
20           against any individual because the individual has
21           opposed any practice forbidden by this part or has
22           filed a complaint, testified, or assisted in any
23           proceeding respecting the discriminatory practices

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 1           prohibited under this part;
 2      (3)  For any person whether an employer, employee, or not,
 3           to aid, abet, incite, compel, or coerce the doing of
 4           any of the discriminatory practices forbidden by this
 5           part, or to attempt to do so;
 6      (4)  For any employer to violate the provisions of section
 7           121-43 relating to nonforfeiture for absence by members
 8           of the national guard;
 9      (5)  For any employer to refuse to hire or employ or to bar
10           or discharge from employment, any individual because of
11           assignment of income for the purpose of satisfying the
12           individual's child support obligations as provided for
13           under section 571-52; [or]
14      (6)  For any employer, labor organization, or employment
15           agency to exclude or otherwise deny equal jobs or
16           benefits to a qualified individual because of the known
17           disability of an individual with whom the qualified
18           individual is known to have a relationship or
19           association[.]; or
20      (7)  For an employer to discriminate between employees, or
21           for a labor organization to cause or attempt to cause
22           an employer to discriminate between employees, on the
23           basis of sex, race, and national origin by:

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

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 1 court finds that a respondent has engaged in or is engaging in
 2 any unlawful discriminatory practice as defined in this part, the
 3 court may enjoin the respondent from engaging in such unlawful
 4 discriminatory practice and order such affirmative action as may
 5 be appropriate, which may include, but is not limited to,
 6 reinstatement, hiring, or upgrading of employees, with or without
 7 backpay, or restoration of membership in any respondent labor
 8 organization, or any other equitable relief the court deems
 9 appropriate.  Backpay liability shall not accrue from a date more
10 than two years prior to the filing of the complaint with the
11 commission.  No employer who is paying wages in violation of
12 section 378-2(7) shall reduce the wage of any employee in order
13 to comply with this chapter."
14      SECTION 6.  Statutory material to be repealed is bracketed.
15 New statutory material is underscored.
16      SECTION 7.  This Act shall take effect upon its approval.
18                           INTRODUCED BY:  _______________________