Bill Text: HI HB1909 | 2016 | Regular Session | Amended

Hawaii House Bill 1909 (Prior Session Legislation)

HI State Legislature page for HB1909

Bill Title: Pay Equity; Gender Discrimination

Spectrum: Moderate Partisan Bill (Democrat 10-3)

Status: (Engrossed - Dead) 2016-03-15 - Re-Referred to JDL, WAM. [HB1909 Detail]

Download: Hawaii-2016-HB1909-Amended.html

HOUSE OF REPRESENTATIVES	H.B. NO.	1909
TWENTY-EIGHTH LEGISLATURE, 2016		H.D. 1
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO EQUAL PAY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that pay disparity persists between men and women who do similar work. The Institute for Women's Policy Research reports that if the pace of change continues at the same rate as it has since 1960, women and men will not reach pay parity until 2058.

The legislature further finds that action should be taken to encourage greater gender equality in the workplace. Since first enacting laws against employment discrimination based on sex decades ago, it has been the intent of the legislature to promote gender equality in the workplace. California has taken the initiative to improve equal pay by enacting the Fair Pay Act of 2015. Hawaii should follow suit to effect its intentions to promote gender equality in the work place and close the pay gap between men and women.

Existing Hawaii law generally prohibits an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs when the performance requires equal skill, effort, and responsibility, and the jobs are performed under similar working conditions.

The legislature finds that in 2014, the gender wage gap in Hawaii stood at 14.2 cents on the dollar. A woman working full-time and year-round earned an average of 85.8 cents to every dollar a man earned. This wage gap extends across almost all occupations reporting in Hawaii. The gap is far worse for women of color: African American women in Hawaii make only 73.4 cents for every dollar a white male makes; Latina women make only 61.3 cents for every dollar a white male makes; and Asian American women make only 73.3 cents for every dollar a white male makes.

While Hawaii's gender wage gap is lower than the national average of 79 cents to the dollar, the persistent disparity in earnings still has a significant impact on the economic security and welfare of thousands of working women and their families. Collectively, women working full-time in Hawaii lose approximately $1,673,175,520 each year due to the gender wage gap. The wage gap contributes to the higher statewide poverty rate among women, which stands at 11.7 per cent, compared to approximately seven per cent for men. The poverty rate for female-headed families is extremely high at 26.8 per cent, and 14.7 per cent of Hawaii's children live in poverty.

The legislature also finds that pay secrecy undermines efforts to close the pay gap. A 2010 Institute for Women's Policy Research/Rockefeller Survey of Economic Security reported that 23.1 per cent of private sector workers reported that discussion of wages and salaries was formally prohibited, and an additional 38.1 per cent reported that such discussion was discouraged by managers. Pay secrecy inhibits workers from pursuing claims of pay discrimination because women cannot challenge wage discrimination that they do not know exists. The federal government and many states have taken action to end wage secrecy by prohibiting retaliation against employees who discuss wages. Hawaii can also take this step by banning wage secrecy and banning retaliation against employees who disclose or discuss their wages.

The legislature finds that to eliminate the gender wage gap in Hawaii, the State's equal pay provisions and laws regarding wage disclosures must be improved. The purpose of this Act is to encourage equal pay between men and women by:

(1) Ensuring that employees performing substantially similar work are paid equally;

(2) Changing the requirement of "equal work" to "substantially similar work";

(3) Providing employer affirmative defenses in cases where pay differentials are caused by bona fide seniority systems, bona fide merit systems, and bona fide factors other than sex; provided that these factors do not have a discriminatory effect or purpose;

(4) Eliminating the "same establishment" provision, which prevented employees from being able to compare their salary to that of a coworker who did the same job in a different physical location;

(5) Prohibiting retaliation or discrimination against employees who disclose, discuss, or inquire about their own or co-workers' wages for the purpose of exercising rights under the law;

(6) Prohibiting employers from screening job applicants based on their wage or salary histories;

(7) Prohibiting employers from seeking salary histories from prospective employees, unless the employer offers employment to the prospective employee and obtains written authorization; and

(8) Requiring employer advertisements to include the minimum rate of pay and prohibiting the employer from paying less than the rate advertised.

SECTION 2. Section 378-2.3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§378-2.3[]] Equal pay; sex discrimination. (a) No employer shall discriminate between employees because of sex, by paying wages to employees [~~in an establishment~~] at a rate less than the rate at which the employer pays wages to employees of the opposite sex [~~in the establishment~~] for [~~equal work on jobs the performance of which requires equal~~] substantially similar work in terms of skill, effort, and responsibility, [~~and that are~~] performed under similar working conditions[~~. Payment differentials resulting from:~~], except where the employer demonstrates the wage differential is based upon one of the following factors:

(1) A bona fide seniority system; provided that it is established by a collective bargaining agreement, civil service requirement, or formal employer policy that treats employees who do substantially similar work equally;

(2) A bona fide merit system; provided that it is being operated and applied in a nondiscriminatory manner, and that it measures merit objectively and consistently across positions involving substantially similar work; or

[~~(3)~~ ~~A system that measures earnings by quantity or quality of production;~~

~~(4)~~] (3) A bona fide [~~occupational qualification; or~~] factor other than sex only if:

(A) It does not have a disparate impact based on sex; or

(B) If it does have a disparate impact based on sex, the employer proves that the factor is job-related for the position in question and that there is no alternative business practice that would serve substantially the same business purpose with less sex based disparate impact; and

[~~(5)~~ ~~A differential based on any other permissible factor other than sex do not violate this section.~~]

(b) An employer shall not prohibit an employee from disclosing the employee's wages, discussing and inquiring about the wages of other employees, or aiding or encouraging any other employee to exercise rights under this section.

(c) Any employer shall be prohibited, personally or through an agent, to screen job applicants based on their wage or salary histories, including by:

(1) Requiring that an applicant's prior wages or salary history satisfy minimum or maximum criteria; or

(2) Requesting or requiring as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment, that an applicant disclose prior wages or salary history.

(d) Any employer shall be prohibited from seeking the salary history of any prospective employee from any current or former employer; provided that a prospective employee may provide written authorization to a prospective employer to confirm prior wages or salary history only after an offer of employment has been made to the prospective employee.

(e) Any employer shall, personally or through an agent, publish, list, or post, publicly or within the organization; or publish, list, or post with any employment agency, job-listing service, or website, an advertisement to recruit candidates for hire or independent contractors to fill a position within the organization, including:

(1) The minimum rate of pay, whether paid by the hour, shift, day, week, salary, piece, commission, or other;

(2) Overtime; and

(3) Allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances.

No employer shall pay wages less than what were advertised for the position.

(f) Nothing in this section shall limit any person's right under any other section of this chapter to be free of compensation discrimination in employment.

(g) As used in this section, "sex" shall include gender."

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect on July 1, 2016.

Report Title:

Pay Equity; Gender Discrimination

Description:

Amends the provisions for equal pay and sex discrimination for substantially similar work. Clarifies employer defenses. Prohibits employer actions regarding wage disclosure and applicant wage histories. Requires that employer advertisements include minimum rate of pay. (HB1909 HD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.