Page 1,
between lines 1 and 2, insert:
"Section 1. Title 23, chapter 2, article 1, Arizona
Revised Statutes, is amended by adding section 23-206, to read:
START_STATUTE23-206. Wage
disclosure; protection; prohibitions; civil action
A. An
employer may not:
1. Require
nondisclosure by an employee regarding the employee's wage information as a
condition of employment.
2. Require
an employee to sign a waiver or other document that denies the employee the
right to disclose the employee's wage information.
3. Take
any adverse employment action against an employee for disclosing the employee's
wages or discussing another employee's wages if the discussion was voluntary.
4. Retaliate
against an employee for asserting the employee's rights and remedies under this
section.
B. This
section does not:
1. Create
an obligation for an employer or employee to disclose wage information.
2. Allow
an employee, without the written consent of the employer, to disclose
proprietary information, trade secret information or other information that is
otherwise subject to legal privilege or protected by law.
3. Diminish
any existing rights under the national labor relations act (49 Stat. 449; 29
United States code sections 151 through 169).
4. Allow
an employee to disclose wage information of other employees to a competitor of
the employer.
C. An
employer that provides an employee handbook to its employees shall include in
the employee handbook notice of the employee's rights and remedies under this
section.
D. If
an employer violates subsection A of this section, the employee may file a civil
action against the employer. The court may order reinstatement, recovery of
unpaid wages, restoration of lost service credits, if appropriate, and
expungement of any related adverse records relating to the employee who was the
subject of the violation. END_STATUTE
Sec. 2. Section 23-340, Arizona Revised Statutes,
is amended to read:
START_STATUTE23-340. Definitions
In this
article, unless the context otherwise requires:
1. "Business
necessity" means an overriding legitimate business purpose such that the
factor relied on effectively fulfills the business purpose the factor is
supposed to serve.
1. 2. "Commission"
means the industrial commission of Arizona.
2. 3. "Employee"
means every woman or man in receipt of or entitled to compensation for labor
performed for any employer.
3. 4. "Employer"
means this state and any political subdivision of this state which
that receives state tax monies and every person, firm,
corporation, agent, manager, representative, contractor, subcontractor,
principal or other person having control or direction of any woman or man
employed at any labor, or responsible directly or indirectly for the wages of
another.
4. 5. "Wage" or
"wages" means any compensation for labor measured by time, piece, or otherwise. END_STATUTE
Sec. 3. Section 23-341, Arizona Revised Statutes,
is amended to read:
START_STATUTE23-341. Equal
wage rates; variations; penalties; recordkeeping; enforcement
A. Notwithstanding
the other provisions of this chapter, no an
employer shall not pay any person in his the employer's employ 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. substantially
similar work, when viewed as a composite of skill, effort and responsibility
and performed under similar working conditions, unless the employer can
demonstrate:
1. The
wage rate 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, such as education, training or experience.
This factor applies only if the employer demonstrates that the factor is not
based on or derived from a sex‑based differential in wage rates, is
related to the employment position in question and is consistent with a
business necessity. This factor does not apply if the employee
demonstrates that an alternative business practice exists that would serve the same
business necessity without producing the wage rate differential.
2. Each
factor relied on is applied reasonably.
3. The
factor or factors relied on account for the entire wage rate 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
additional equal amount as liquidated damages.
C. Any
affected employee may register with the commission a complaint 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 take all proceedings necessary to enforce the payment of any
sums found to be due and unpaid to such affected
employees.
E. An
employer shall do all of the following to monitor compliance with the
requirements of this section:
1. Maintain
records of the wages and wage rates, job classifications and other terms and
conditions of employment of the employer's employees.
2. Keep
the records for a period of three years.
3. Allow
the commission access to these records, with appropriate notice and at a
mutually agreeable time.
E. F. 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 wages, including interest, and an equal amount as
liquidated damages, together with the costs of suit and
reasonable attorney fees, notwithstanding any agreement to work for a
lesser wage.
F. G. Any action based upon on or arising under this section
shall be instituted within six months 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 or three years
after the alleged violation in the case of a wilful violation.
G. H. The burden of proof shall be upon is on the person bringing
the claim to establish that the differentiation in rate of pay
wage rate differential is based upon
on the factor of sex and not upon on other differences, factor or factors.
I. An
employer may not discharge or in any manner discriminate or retaliate against
an employee for taking any action to enforce or assist in the enforcement of
this section. An employee who is discharged or discriminated or
retaliated against in the terms and conditions of the employee's employment
because the employee engaged in any action to enforce or assist in the
enforcement of this section may recover in a civil action reinstatement and
reimbursement for lost wages and work benefits caused by the employer,
including interest, as well as other appropriate equitable relief. END_STATUTE
Sec. 4. Title 23, chapter 2, article 6.1, Arizona
Revised Statutes, is amended by adding section 23-342, to read:
START_STATUTE23-342. Equal
pay certification; application; criteria; denial; suspension and revocation;
audit; confidentiality; report; definitions
A. The
commission shall issue an equal pay certificate to a business that has at least
forty full‑time employees in this state or the state where the business's
primary place of business is located and that submits to the commission an
application, a statement signed by the chairperson of the board of directors or
chief executive officer of the business and supporting documentation that
states:
1. That
the business complies with title VII of the civil rights act of 1964 (P.L.
88-352; 78 Stat. 241; 42 United States code sections 2000e through 2000e-17), the equal pay act of 1963 (P.L. 88-38; 77 Stat. 56; 29 United
States code section 206) and this article.
2. That
the average compensation for female employees is not consistently below the
average compensation for male employees within each job category for which an
employee is expected to perform work under a contract, taking into consideration
length of service, requirements of specific jobs, experience, skill, effort,
responsibility, working conditions on the job or other mitigating factors.
3. That
the business does not restrict employees of one sex to certain job
classifications and makes retention and promotion decisions without regard to
sex.
4. That
wage and benefit disparities are corrected if identified to ensure compliance
with the laws pursuant to paragraph 1 of this subsection.
5. How
often wages and benefits are evaluated to ensure compliance with the laws
pursuant to paragraph 1 of this subsection.
6. Whether
the business sets compensation and benefits based on a market pricing approach,
the state prevailing wage or labor organization requirements, a performance pay
system, an internal analysis or an alternative approach. If the
business uses an alternative approach, the business shall provide a description
of the alternative approach used to set compensation and benefits.
B. The
commission may establish an application and application fee by rule for the
issuance of equal pay certificates and for equal pay certificate renewal.
C. An
equal pay certificate issued pursuant to this section is valid for a period of
four years.
D. The
commission shall review each business's application, statement and supporting
documentation submitted within fifteen days after receipt. If the
commission determines that the business is not in compliance with subsection A
of this section, the commission may deny the business the equal pay certificate.
E. The
commission may suspend or revoke an equal pay certificate if the business fails
to make a good faith effort to comply with or has multiple violations of title
VII of the civil rights act of 1964 (P.L. 88‑352; 78 Stat. 241; 42
United States code sections 2000e
through 2000e‑17), the equal pay act of 1963 (P.L. 88-38; 77 Stat. 56; 29 United States
code section 206) and this article. The commission shall provide
notice to the business before suspending or revoking the business's equal pay
certificate and allow the business an opportunity to comply with title VII of
the civil rights act of 1964 (P.L. 88-352; 78 Stat. 241; 42 United States code sections 2000e through 2000e-17), the equal pay act of 1963 (P.L. 88-38; 77 Stat. 56; 29 United States
code section 206) and this article.
F. The
commission may audit a business to verify compliance with this
section. On request, the business shall provide the following
information to the commission with respect to the employees expected to perform
work under the contract in each job category:
1. The
number of male employees.
2. The
number of female employees.
3. The
average annualized salaries paid to male employees and to female employees,
in a manner consistent with the business's compensation system, within each job
category.
4. Information
on performance payments, benefits or other elements of compensation, in a
manner consistent with the business's compensation system.
5. The
average length of service for male and female employees in each job category.
6. Other
information identified by the business or the commission necessary to determine
compliance with the criteria provided in subsection A of this section.
G. All
information that is related to a business's employees and that is submitted to
the commission related to an equal pay certificate is confidential and is not
subject to inspection by the public. The commission's decision to
issue, deny, revoke or suspend an equal pay certificate is not confidential.
H. The
commission shall submit a report to the governor, the chairperson and ranking
minority member of the senate committee on government, or its successor
committee, and the chairperson and ranking minority member of the house of
representatives committee on government, or its successor committee, on or
before January 31 of every odd-numbered year, beginning January 31,
2019. The report shall include the number of equal pay certificates
issued, the number of audits conducted and information regarding the processes
used by businesses to ensure compliance with subsection A of this section.
I. For
the purposes of this section:
1. "Business"
has the same meaning prescribed in section 41-2503.
2. "Contract"
has the same meaning prescribed in section 41-2503.
3. "Job
category" means the major job categories provided in the most recent
employer information report issued by the United States equal employment
opportunity commission, or its successor agency. END_STATUTE
Sec. 5. Title 23, chapter 2, Arizona Revised
Statutes, is amended by adding article 8.2, to read:
ARTICLE 8.2. FLEXIBLE SCHEDULING
START_STATUTE23-385. Definitions
In
this article, unless the context otherwise requires:
1. "Bona
fide business reason" means:
(a) The
identifiable burden of additional costs to an employer, including the cost of
productivity loss, retraining or hiring employees or transferring employees
from one facility to another facility.
(b) A
significant detrimental effect on the employer's ability to meet organizational
needs or customer demand.
(c) A
significant inability of the employer, despite best efforts, to reorganize work
among existing staff.
(d) A
significant detrimental effect on business performance.
(e) Insufficiency
of work during the periods an employee proposes to work.
(f) The
need to balance competing scheduling requests when it is not possible to grant
all scheduling requests without a significant detrimental effect on the
employer's ability to meet organizational needs.
(g) Another
reason prescribed by the commission in rule.
2. "Career‑related
educational or training program" means an educational or training program
offered by a career and technical education school, an institution of higher
education or another entity that provides education, career and technical
education or training that leads to a postsecondary degree.
3. "Caregiver"
means an individual who is a significant provider of:
(a) ongoing
care or education for a child, including an individual who is responsible for
securing ongoing care or education for a child.
(b) Ongoing
care for a family member, including an individual who is responsible for
securing ongoing care for a family member.
4. "Commission"
means the industrial commission of Arizona.
5. "Employee"
means any person who is employed by an employer for more than eighty hours in a
calendar year. Employee does not include an individual who is employed by this
state, a political subdivision of this state or the united states or who is
covered by a valid collective bargaining agreement that expressly governs work
scheduling practices in clear and unambiguous terms.
6. "Employer"
includes any corporation, proprietorship, partnership, joint venture, limited
liability company, trust, association, individual or other entity acting
directly or indirectly in the interest of an employer in relation to an
employee, but does not include this state, a political subdivision of this
state or the United States.
7. "Family
member" means:
(a) A
biological, adopted or foster child, a stepchild or legal ward, a child of a
domestic partner or a child for whom the employee serves as a temporary
guardian.
(b) A
biological, foster or adoptive parent or legal guardian of the employee or the
employee's spouse or domestic partner, a stepparent of the employee or the
employee's spouse or domestic partner or an individual who was a temporary
guardian of the employee when the employee was a minor.
(c) The
spouse or domestic partner of the employee.
(d) A
grandparent or a spouse or domestic partner of a grandparent.
(e) A
biological, foster or adopted sibling or a spouse or domestic partner of a
biological, foster or adopted sibling.
(f) A
grandchild.
(g) Any
other individual who is related by blood or affinity whose close association
with the employee is the equivalent of a family relationship.
8. "Retaliation"
means any threat, discharge, suspension, demotion or reduction of hours by an
employer of an employee or other adverse action that an employer takes against
an employee and includes any sanctions against a recipient of public benefits
or interference with or punishment for participating in an investigation,
proceeding or hearing under this article.
9. "split
shift" means a schedule of daily hours in which the hours worked are not
consecutive. A split shift does not include a schedule in which the total time
out for meals is not more than one hour. END_STATUTE
START_STATUTE23-385.01. Request
for change in the terms and conditions of employment
A. An
employee may request a change in the terms and conditions of employment related
to:
1. The
number of hours the employee is required to work or be on call for work.
2. The
times when the employee is required to work or be on call for work.
3. The
location where the employee is required to work.
4. The
amount of advance notification the employee receives of work schedule
assignments.
5. the
Minimization of fluctuations in the number of hours the employee is scheduled
to work on a daily, weekly or monthly basis.
B. If
an employee requests a change in the terms and conditions of employment as
prescribed by subsection A of this section, the employer shall engage in a
timely, good faith interactive process with the employee, including discussing
potential schedule changes that would meet the employee's needs. If the
employer denies the proposed change in the terms and conditions of employment
requested by the employee, the employer shall consider alternatives to the
proposed change that may meet the employee's needs. If the employer
denies the alternative change, the employer shall state the reason for the denial.
C. If
the employer requires clarification of the information provided by the employee
in the request to change the terms and conditions of employment, the employer
shall explain what additional information is needed and provide the employee
reasonable time to produce the information.
D. If
an employee requests a change in the terms and conditions of employment as
prescribed in subsection A of this section because of a serious health
condition of the employee, the employee's responsibilities as a caregiver for a
family member or the employee's enrollment in a career‑related
educational or training program, or if the employee is a part‑time
employee and the request is related to a second job, the employer shall grant
the request, unless the employer has a bona fide business reason for denying
the request.
E. If
an employee requests a change in the terms and conditions of employment as
prescribed in subsection A of this section for a reason other than the reasons
provided in subsection D of this section, the employer may deny the request for
any lawful reason. If the employer denies the request, the employer shall
provide the employee with the reason for the denial, including whether the
reason is a bona fide business reason. END_STATUTE
START_STATUTE23-385.02. Pay
and schedule notice requirements for retail, food service or cleaning
employees; definition
A. An
employer shall pay an employee as follows:
1. For
at least four hours at the employee's regular rate of pay for each day on which
the employee reports for work under specific instructions but is given less
than four hours of work, except that if the employee's scheduled hours are less
than four hours, the employee shall be paid for the employee's scheduled hours
for that day if given less than the scheduled hours of work.
2. For
at least one hour at the employee's regular rate of pay for each day the
employee is given specific instructions to contact the employer, or wait to be
contacted by the employer, less than twenty‑four hours in advance of the
start of the potential work shift to determine if the employee must report to
work for the shift.
3. For
one additional hour at the employee's regular rate of pay for each day during
which the employee works a split shift.
B. An
employer shall:
1. On
or before a new employee's first day of work, inform the employee in writing of
the employee's work schedule and the minimum number of expected work hours the
employee will be assigned to work per month.
2. Except
as provided in subsection C of this section, if the employee's work schedule
changes from the work schedule of which the employee was informed pursuant to
paragraph 1 of this subsection, provide a new work schedule to the employee at
least fourteen days before the first day of the new work
schedule. If the expected minimum number of work hours an employee
is assigned changes, the employer shall notify the employee of the change of
work hours at least fourteen days before the change goes into
effect. This paragraph does not prohibit an employer from providing
greater advance notice to an employee than is required under this paragraph.
3. Post
the work schedule in a conspicuous place in every establishment where an
employee is employed. Availability of the work schedule by
electronic means accessible by all employees is considered to be in compliance
with this paragraph.
C. An
employer may change the work schedule as needed, including offering additional
hours of work to employees beyond the hours previously scheduled. An
employer shall provide one extra hour of pay at the employee's regular rate for
each shift that is changed with less than twenty‑four hours' notice,
unless the need to schedule the employee is due to the unforeseen
unavailability of the employee previously scheduled to work that shift.
D. The
notifications required under subsection B of this section shall be in writing.
An employer may use additional means of notifying an employee of the employee's
work schedule.
E. This
section does not:
1. Prevent
an employer from allowing an employee to work in place of another employee who
has been scheduled to work a particular shift if the change in schedule is
mutually agreed on by the employees. An employer is not subject to
the requirements of subsection B, paragraph 2 or subsection C of this section
for voluntary shift trades.
2. Apply
during periods when regular operations of the employer are suspended due to
events beyond the employer's control.
F. For
the purposes of this section, "employee" means any
person who is employed in a retail sales occupation, food‑preparation‑and‑service‑related
occupation or building cleaning occupation. END_STATUTE
START_STATUTE23-385.03. Protection
of rights; retaliation prohibition
A. It
is unlawful for an employer or any other person to interfere with, restrain or
deny the exercise of, or the attempt to exercise, any right that is provided
under this article.
B. An
employer may not engage in retaliation or discrimination against an employee
because the employee has exercised, or attempted to exercise, any right that is
provided under this article. END_STATUTE
START_STATUTE23-385.04. Notice
and posting
A. An
Employer shall give notice to an employee at the commencement of employment or
by January 1, 2019, whichever is later, of the following:
1. Employees
are entitled to request a change in the terms and conditions of employment
pursuant to Section 23‑385.01.
2. Retaliation
against employees who request a change in the terms and conditions of
employment pursuant to Section 23‑385.01 is prohibited.
3. Each
employee may file a complaint or bring a civil action if the employer violates
this article or the employee is retaliated against for requesting a change in
the terms and conditions of employment.
B. To
comply with this section, an Employer shall:
1. Supply
each employee with a notice that contains in English, spanish and any language
that is the first language spoken by at least ten percent of the employer's
workforce the information that is required in subsection A of this section.
2. Display
a poster in a conspicuous and accessible place in each establishment where
employees are employed that contains in English, spanish and any language that
is the first language spoken by at least ten percent of the employer's
workforce the information that is required in subsection A of this section.
C. The
commission shall create and make available to employers notices and posters
that contain in English, spanish and any language deemed appropriate by the
commission the information that is required under subsection A of this section
for the employers' use in complying with this section.
END_STATUTE
START_STATUTE23-385.05. Employer
records
An
Employer shall retain records that document compliance with this article for a
period of at least three years and shall allow the commission access to these
records, with appropriate notice and at a mutually agreeable time, to monitor
compliance with the requirements of this Article. END_STATUTE
START_STATUTE23-385.06. Enforcement;
civil penalties
A. The
commission shall:
1. Implement
and enforce this article and adopt rules for these purposes.
2. develop
and implement an outreach and education program to inform employees of their
rights under this article that includes the distribution of notices and other
written materials to employers and labor organizations.
B. An
employee or other person may report to the commission any suspected violation
of this Article. The commission shall keep confidential the name and
other identifying information of the employee or person that reports the
violation, except that the commission may disclose this information as
authorized by the employee or other person as necessary to enforce this section
or for other appropriate purposes.
C. Any
person that is injured by a violation of this article may maintain a civil
action to enforce this article in a court of competent jurisdiction and may be
awarded reasonable attorney fees and costs.
D. Any
employer that violates recordkeeping, posting or other requirements that the
commission establishes under this article is subject to a civil penalty of not
more than one hundred dollars for each separate violation.
E. Any
employer that wilfully violates this article is subject to a civil penalty of
not more than one hundred dollars for each violation and shall pay the employee
an amount set by the commission or a court that is sufficient to compensate the
employee and deter future violations.
F. Any
employer that retaliates against an employee for exercising, or attempting to
exercise, any right provided by this article is subject to a civil penalty of
not more than one thousand one hundred dollars and shall pay the employee an
amount set by the commission or a court that is sufficient to compensate the
employee and deter future violations.
g. A civil action to enforce this article
may be commenced not later than two years after the date the employee knew or
should have known of the violation, or three years after the date the employee
knew or should have known of the violation in the case of a wilful violation. END_STATUTE
Sec. 6. Title 41, chapter 23, article 3, Arizona
Revised Statutes, is amended by adding section 41-2535.01, to read:
START_STATUTE41-2535.01. Equal
pay certificate required; waiver; voiding of contract; hearing
A. Beginning
January 1, 2019, a business that has at least forty full‑time employees
in this state or the state where the business's primary place of business is
located must have an equal pay certificate issued by the industrial commission
of Arizona or an equal pay certificate waiver issued by the procurement officer
to be eligible to contract with any purchasing agency in this state for a
procurement that exceeds an aggregate amount of five hundred thousand dollars.
B. The
procurement officer may issue an equal pay certificate waiver to a business for
a specific contract if the procurement officer determines that application of
this section would cause undue hardship to the purchasing agency.
C. The
procurement officer may void a contract on behalf of this state if the contract
is awarded to a business that does not have an equal pay certificate or an
equal pay certificate waiver or whose equal pay certificate has been suspended
or revoked pursuant to section 23‑342. The procurement officer
shall notify all parties to the contract before taking action to void the
contract.
D. A
business may request a hearing to appeal the procurement officer's action to
void the contract pursuant to chapter 6, article 10 of this title. END_STATUTE
Sec. 7. Short title
This act may
be cited as the "Arizona Equal Pay Act"."
Renumber to
conform
Amend title to conform
Bill
Number: S.B. 1524