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REFERENCE TITLE: wage rates; prohibitions |
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State of Arizona Senate Fifty-second Legislature Second Regular Session 2016
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SB 1369 |
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Introduced by Senators McGuire, Hobbs, Miranda, Sherwood: Contreras, Farley, Pancrazi, Quezada
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AN ACT
Amending section 23‑341, Arizona Revised Statutes; relating to employment practices.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 23-341, Arizona Revised Statutes, is amended to read:
23-341. Equal wage rates; variations; penalties; enforcement; records; confidentiality
A. Notwithstanding the other provisions of this chapter, no an employer shall may not pay any person in his employ employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for the same quantity and quality of the same classification of work, provided, that nothing herein shall prohibit a variation of rates of pay for male and female employees engaged in the same classification of work based upon a difference in seniority, length of service, ability, skill, difference in duties or services performed, whether regularly or occasionally, difference in the shift or time of day worked, hours of work, or restrictions or prohibitions on lifting or moving objects in excess of specified weight, or other reasonable differentiation, factor or factors other than sex, when exercised in good faith. for substantially similar work when viewed as a composite of skill, effort and responsibility and performed under similar working conditions, unless the employer demonstrates the following:
1. The wage differential is based on 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) A bona fide factor other than sex, including education, training or experience. This subdivision applies only if the employer demonstrates that the bona fide factor is not based on or derived from a sex‑based differential in compensation, is related to the position in question and is consistent with a business necessity. This subdivision does not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing a wage differential. For the purposes of this subdivision, "business necessity" means an overriding legitimate business purpose on which a bona fide factor is relied and that is effectively fulfilled by that bona fide factor.
2. The employer reasonably relied on a factor or factors prescribed in paragraph 1 of this subsection.
3. The factor or factors on which the employer relied account for the entire wage differential.
B. Any employer who violates subsection A of this section is liable to the employee affected in the amount of the wages of which such the employee is deprived by reason of such the violation, including interest, and an equal amount as liquidated damages.
C. Any affected employee may register with the commission file a complaint with the commission that the wages paid to such the employee are less than the wages to which such the employee is entitled under this section.
D. The commission shall administer and enforce this section and take all proceedings necessary to enforce the payment of any sums monies found to be due and unpaid to such affected employees. Acceptance of payment in full made by an employer and approved by the commission constitutes a waiver of the affected employee's right to a cause of action under subsection E of this section.
E. Any employee receiving less than the wage to which such the employee is entitled under this section may recover in a civil action the balance of such the wages, together with the costs of suit including interest, and an equal amount as liquidated damages, reasonable attorney fees and costs, notwithstanding any agreement to work for a lesser wage.
F. Any complaint or civil action based upon on or arising under this section shall be instituted within six months commenced not later than two years after the date of the alleged violation, but in no event shall any employer be liable for any pay due under this section for more than thirty days prior to receipt by the employer of written notice of claim thereof from the employee except that a cause of action arising out of a wilful violation shall be commenced not later than three years after the alleged violation.
G. The burden of proof shall be upon is on the person bringing the claim to establish that the differentiation in rate of pay is based upon on the factor of sex and not upon other differences, on another factor or factors.
H. If an employee recovers amounts due to the employee under subsection B of this section and also files a complaint or brings an action under 29 United States Code section 206(d) that results in additional recovery for the same violation, the employee shall return to the employer the amounts recovered under subsection B of this section or the amounts recovered under federal law, whichever is less.
I. The commission, with the consent of an employee or affected group of employees, may initiate a civil action on behalf of the employee or affected group of employees to recover unpaid wages and liquidated damages under subsection A of this section, and the commission may recover court costs. The consent of any employee pursuant to this subsection constitutes a waiver of the employee's right to a cause of action under subsection E of this section, unless the civil action brought pursuant to this subsection is dismissed without prejudice. An employee may intervene in a civil action brought pursuant to this subsection or initiate an independent action if the civil action has not been determined within one hundred eighty days after the date the complaint is filed.
J. An employer may not discharge or discriminate or retaliate against an employee who takes action to invoke or assist in the enforcement of this section.
K. An employer shall maintain records of wages and wage rates, job classifications and other terms and conditions of employment of the employer's employees for a period of three years.
L. The commission shall keep confidential the name of any employee who files a complaint with the commission for a violation of this section until the commission validates the complaint, unless disclosure is necessary to investigate the complaint. If the employee withdraws the complaint before the employee's name is disclosed, the commission shall keep confidential the employee's name.