|
REFERENCE TITLE: employment omnibus |
|
State of Arizona Senate Fifty-fourth Legislature First Regular Session 2019
|
|
SB 1435 |
|
|
|
Introduced by Senators Quezada: Dalessandro, Mendez, Peshlakai, Rios; Representative Andrade
|
AN ACT
amending title 23, chapter 2, article 1, Arizona Revised Statutes, by adding sections 23-206 and 23‑207; amending section 23‑341, Arizona Revised Statutes; amending title 23, chapter 2, article 6.1, Arizona Revised Statutes, by adding sections 23‑342 and 23‑343; amending section 23‑1501, Arizona Revised Statutes; amending title 41, chapter 4, article 1, Arizona Revised Statutes, by adding section 41‑710.02; amending title 41, chapter 23, Arizona Revised Statutes, by adding article 14; relating to employment.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 23, chapter 2, article 1, Arizona Revised Statutes, is amended by adding sections 23-206 and 23‑207, to read:
23-206. Salary history information; wage disclosure; provision of pay scale to applicants; applicability
A. An employer may not:
1. Rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.
2. Seek salary history information, whether orally or in writing or whether personally or through an agent, about an applicant for employment.
3. Discharge, demote or suspend an employee or discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment because the employee has either:
(a) Inquired about, discussed or disclosed in any manner the wages of the employee or of another employee.
(b) Made a charge, filed a complaint or instituted, or caused to be instituted, an investigation, proceeding, hearing or action based on the disclosure of wage information by the employee.
B. On reasonable request, an employer shall provide the pay scale for a position to an applicant for employment.
C. This section applies to all employers, including state and local government employers and the legislature.
D. This section does not:
1. Prohibit an applicant from voluntarily and without prompting disclosing salary history information to a prospective employer. If an applicant voluntarily and without prompting discloses salary history information to a prospective employer, this section does not prohibit that employer from considering or relying on that voluntarily disclosed salary history information in determining the salary for that applicant.
2. Apply to salary history information that is subject to public disclosure pursuant to federal or state law.
3. Allow prior salary, by itself, to justify any disparity in compensation.
23-207. Prohibition on retaliation for participating in investigation; applicability
A. An employer may not discharge or in any other manner discriminate against any employee because the employee:
1. Has lodged a complaint with or has testified, assisted or participated in any manner with the attorney general, county attorney, industrial commission of Arizona or United States department of labor in an investigation of prohibited acts or practices.
2. Is known by the employer to be about to lodge a complaint regarding prohibited acts or practices or testify, assist or participate in any manner in an investigation of prohibited acts or practices.
B. This section applies to all employers, including state and local government employers and the legislature.
Sec. 2. Section 23-341, Arizona Revised Statutes, is amended to read:
23-341. Equal wage rates; variations; penalties; 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. this section does not prohibit a variation of rates of pay for male and female employees engaged in the same classification of work based upon a difference in on:
1. A seniority, system.
2. A merit system.
3. A system that measures earnings by quantity or quality of production.
4. A bona fide factor other than sex, such as education, training, experience, 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. This factor applies only if the employer demonstrates that the factor is not based on or derived from a sex-based differential in compensation, is job related with respect to the position in question and is consistent with a business necessity. For the purposes of this paragraph, "business necessity" means an overriding legitimate business purpose such that the factor relied on effectively fulfills the business purpose it is supposed to serve. This defense does not apply if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the 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.
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 employees.
E. Any employee receiving less than the wage to which such an employee is entitled under this section may recover in a civil action the balance of such those wages, together with the costs of suit, notwithstanding any agreement to work for a lesser wage.
F. Any action based upon on or arising under this section shall be instituted within six months 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 before receipt by the employer of written notice of claim thereof from the employee.
G. The burden of proof shall be upon is on the person bringing the claim employer to establish that the differentiation in rate of pay is based upon the on a factor of sex described in subsection A of this section and not upon other differences, factor or factors on sex.
Sec. 3. Title 23, chapter 2, article 6.1, Arizona Revised Statutes, is amended by adding sections 23-342 and 23-343, to read:
23-342. Equitable compensation relationships
Each employer shall establish equitable compensation relationships between female-dominated, male-dominated and balanced classes of employees.
23-343. 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 the factors described in section 23‑341, subsection A.
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, 2021. 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.
Sec. 4. Section 23-1501, Arizona Revised Statutes, is amended to read:
23-1501. Severability of employment relationships; protection from retaliatory discharges; exclusivity of statutory remedies in employment
A. The public policy of this state is that:
1. The employment relationship is contractual in nature.
2. The employment relationship is severable at the pleasure of either the employee or the employer unless both the employee and the employer have signed a written contract to the contrary setting forth that the employment relationship shall remain in effect for a specified duration of time or otherwise expressly restricting the right of either party to terminate the employment relationship. Both the employee and the employer must sign this written contract, or this written contract must be set forth in the employment handbook or manual or any similar document distributed to the employee, if that document expresses the intent that it is a contract of employment, or this written contract must be set forth in a writing signed by the party to be charged. Partial performance of employment shall not be deemed sufficient to eliminate the requirements set forth in this paragraph. Nothing in This paragraph shall be construed to does not affect the rights of public employees under the Constitution of Arizona and state and local laws of this state or the rights of employees and employers as defined by a collective bargaining agreement.
3. An employee has a claim against an employer for termination of employment only if one or more of the following circumstances have occurred:
(a) The employer has terminated the employment relationship of an employee in breach of an employment contract, as set forth in paragraph 2 of this subsection, in which case the remedies for the breach are limited to the remedies for a breach of contract.
(b) The employer has terminated the employment relationship of an employee in violation of a statute of this state. If the statute provides a remedy to an employee for a violation of the statute, the remedies provided to an employee for a violation of the statute are the exclusive remedies for the violation of the statute or the public policy set forth in or arising out of the statute, including the following:
(i) The civil rights act prescribed in title 41, chapter 9.
(ii) The occupational safety and health act prescribed in chapter 2, article 10 of this title.
(iii) The statutes governing the hours of employment prescribed in chapter 2 of this title.
(iv) The agricultural employment relations act prescribed in chapter 8, article 5 of this title.
(v) The statutes governing disclosure of information by public employees prescribed in title 38, chapter 3, article 9.
All definitions and restrictions contained in the statute also apply to any civil action based on a violation of the public policy arising out of the statute. If the statute does not provide a remedy to an employee for the violation of the statute, the employee shall have the right to bring a tort claim for wrongful termination in violation of the public policy set forth in the statute.
(c) The employer has terminated the employment relationship of an employee in retaliation for any of the following:
(i) The refusal by the employee to commit an act or omission that would violate the Constitution of Arizona or the statutes of this state.
(ii) The disclosure by the employee in a reasonable manner that the employee has information or a reasonable belief that the employer, or an employee of the employer, has violated, is violating or will violate the Constitution of Arizona or the statutes of this state to either the employer or a representative of the employer who the employee reasonably believes is in a managerial or supervisory position and has the authority to investigate the information provided by the employee and to take action to prevent further violations of the Constitution of Arizona or statutes of this state or an employee of a public body or political subdivision of this state or any agency of a public body or political subdivision.
(iii) The exercise of rights under the workers' compensation statutes prescribed in chapter 6 of this title.
(iv) Service on a jury as protected by section 21‑236.
(v) The exercise of voting rights as protected by section 16‑1012.
(vi) The exercise of free choice with respect to nonmembership in a labor organization as protected by section 23‑1302.
(vii) Service in the national guard or armed forces as protected by sections 26‑167 and 26‑168.
(viii) The exercise of the right to be free from the extortion of fees or gratuities as a condition of employment as protected by section 23‑202.
(ix) The exercise of the right to be free from coercion to purchase goods or supplies from any particular person as a condition of employment as protected by section 23‑203.
(x) The exercise of a victim's right to leave work as provided in sections 8‑420 and 13‑4439.
(xi) The exercise of an employee's rights under section 23-206, subsection A, paragraph 3 or section 23-207.
B. If the statute provides a remedy to an employee for a violation of the statute, the remedies provided to an employee for a violation of the statute are the exclusive remedies for the violation of the statute or the public policy prescribed in or arising out of the statute.
Sec. 5. Title 41, chapter 4, article 1, Arizona Revised Statutes, is amended by adding section 41-710.02, to read:
41-710.02. Classification plans and pay schedules; standard of equal pay for comparable worth
The department shall establish a standard of equal pay for comparable worth with respect to its classification plan and pay schedules. This standard for the classification plan shall be reached by:
1. Eliminating in the classification of positions the use of judgments and factors that contain inherent biases based on sex.
2. Comparing in the classification of positions the factors for determining job worth across occupational groups whenever those groups are dominated by males or females.
Sec. 6. Title 41, chapter 23, Arizona Revised Statutes, is amended by adding article 14, to read:
ARTICLE 14. NONDISCRIMINATION AND EQUAL PAY
41-2681. Nondiscrimination program; annual report
A. Before becoming a contractor or subcontractor with this state, an employer that has at least one hundred full‑time employees in this state and that is seeking to execute a contract with the state of at least thirty days shall submit a nondiscrimination program to the department that includes the following:
1. Policies and procedures that are designed to ensure equal employment opportunities for all applicants and employees.
2. An analysis of employment selection procedures.
3. A workforce analysis.
B. An employer that submits a nondiscrimination program to the department pursuant to subsection A of this section shall submit annual compliance reports to the department.
41-2682. Equal pay certificate required
This state may not execute a contract or agreement in excess of $500,000 with a business unless the business submits an equal pay certificate issued pursuant to section 23-343 or demonstrates to this state that the business is exempt under section 23-343.