AN ACT CONCERNING PENALTIES FOR VIOLATIONS OF CERTAIN PERSONNEL FILES STATUTES.

AN ACT CONCERNING PENALTIES FOR VIOLATIONS OF CERTAIN PERSONNEL FILES STATUTES.

This bill makes several changes to the law banning employers from discriminating based solely on gender in the amount of compensation paid to employees. The bill:

1. expands possible employer defenses against gender wage claims;

2. permits, rather than requires, a court to order awards when an employer is found to violate the law;

3. extends the period to make a claim of discrimination from one to two years following a violation;

4. expands the whistleblower protections to include those who testify or assist in a gender wage proceeding;

5. permits possible compensatory and punitive damages for violations of the whistleblower protections; and

6. repeals the $ 200 fine for each wage discrimination violation or for retaliatory action against an employee bringing a gender wage complaint.

Under current law, the labor commissioner or an employee or group of employees can initiate gender wage claims in civil court regarding alleged pay discrimination for work performed by two or more employees that requires equal skill, effort, and responsibility and is performed under similar conditions. The bill specifies an employee or employees can bring a civil action on his or her own without gong to the labor commissioner or if the labor commissioner declines to bring the action.

It also allows an employee or employees to ask the court for legal and equitable relief in addition to the other remedies. The labor commissioner does not have this option. Also, the bill eliminates the commissioner's ability to seek reasonable attorney's fees and costs. But it does allow an employee to seek attorney's fees and costs.

The bill allows a court to award back pay and compensatory and punitive damages in claims brought by either the commissioner or an employee or group of employees.

This bill also subjects any employer, officer, agent, or other person who violates the provisions of the Personnel Files Act to a $ 300 civil penalty for each violation. The Labor Department imposes the penalty and can ask the attorney general to initiate civil action to recover any unpaid penalties.

By law, when the attorney general helps recover penalties from violations of Chapter 557 (employment regulation regarding minors, people with disabilities, apprentices, family and medical leave, certain employee rights, and other employment issues); Chapter 558 (various wage laws); and workers' compensation insurance fraud, the money is credited to the Labor Department to use to enforce the laws that generated the penalties. The bill authorizes personnel file penalties to be used to support enforcement of the personnel file law or any of the other laws previously mentioned.

*House Amendment “A” specifies that the Labor Department may use penalties recovered under the bill to enforce provisions of the Personnel Files Act.

*Senate Amendment “A” adds the provisions regarding the gender wage equity law.

The bill expands the possible employer defenses against gender wage claims. Current law permits pay practices that recognize length of service or merit rating as a legitimate factor in determining wages. The bill adds other legitimate elements, but also limits the situations when they can be used.

The bill includes the current permitted practices (seniority or merit) and adds:

1. a system that measures earnings by quantity or quality of production and

2. a differential system based upon a bona fide factor other than sex, such as education, training, or experience.

The bill specifies that the bona fide factors are valid only if the employer shows the system is (1) not based on or derived from a sex-based differential in compensation and (2) job-related and consistent with business necessity. Furthermore, the defense is not valid if the employee shows that an alternative compensation practice exists that would serve the same business purpose without producing such a pay differential and that the employer has refused to adopt such an alternative.

By law, the labor commissioner may agree to take an employee's complaint of unfair wages or may investigate on her own initiative. The law authorizes the commissioner, or her representative, to enter workplaces to inspect payrolls, investigate employee work and operations, question employees, and take action as is reasonably necessary to determine compliance with the law.

By law, the commissioner or an employee may take a gender wage claim to civil court in an effort to seek to collect on the claim. Under the bill, an employee or group of employees may initiate a court action or ask the commission to initiate court action. If the commissioner declines to go to court, the employee or group of employees can then pursue court action.

Under the bill, an employee can demonstrate that his or her employer discriminates on the basis of sex by paying wages to employees at a rate less than the rate the employer pays to employees of the opposite sex for work that requires equal skill, effort, and responsibility and is performed under similar conditions.

Under the bill, the court, if it finds the employer violated the law, may award (1) back pay consisting of the difference in the employee's pay and the top wage paid to other employees who perform equal work; (2) compensatory damages; and (3) punitive damages, if the violation is found to be intentional or committed with reckless indifference to the employee's rights. If the employee or employees are pursuing the claim, the bill allows the court to award attorney's fees and costs and such other legal and equitable relief as it deems just and proper.

1. award back pay, consisting of the difference in the employee's pay and the top wage paid to other employees who perform equal work, taxable costs and reasonable attorney's fees and

2. fine the employer $ 200 for each violation.

The bill extends, from one to two years, the time to file a complaint following any violation or act that constitutes a continuing violation, such as each time wages or other benefits are paid. Complaints can be filed within three years if the violation is intentional or committed with reckless indifference.

1. a discriminatory compensation decision or practice is adopted,

2. an individual becomes subject to a discriminatory decision or practice, or

3. an individual is affected by the application of a discriminatory decision or practice.

Under the bill, each time wages or other compensation are paid constitutes a new violation.

Under current law, it is a violation to discriminate against an employee who files a complaint or takes other action regarding gender wage discrimination. The bill expands the whistleblower protection to prohibit an employer from discharging, expelling, or otherwise discriminating against a person for (1) opposing a discriminatory compensation practice, (2) filing a complaint about one, or (3) assisting any proceeding regarding one.

The bill eliminates the $ 200 fine for whistleblower violations, but expands potential court awards for such violations to include compensatory and punitive damages.

This state law imposes certain requirements on employers who keep employee personnel and medical records. The law requires the employee's written consent, in most cases, before an employer can disclose individually identifiable information other than the employee's dates of employment, job title, and wage or salary.

The employer must also allow an employee access to personnel files and, in the case of medical files, allow access by a physician chosen or approved by the employee. The employers must maintain both types of files for a certain period after a worker stops working for that company and must abide by other statutory requirements.

Yea

Nay

(02/26/2009)

Yea

Nay

(05/08/2009)