PRINTER'S NO. 1487
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1243
Session of
2017
INTRODUCED BY SIMS, DAVIS, J. HARRIS, DEAN, SCHWEYER, DONATUCCI,
FRANKEL, CALTAGIRONE, McCARTER, W. KELLER, THOMAS, KINSEY,
D. MILLER, BULLOCK, DRISCOLL, V. BROWN, McNEILL, D. COSTA,
SOLOMON, O'BRIEN, READSHAW, BOYLE, SCHLOSSBERG, HILL-EVANS,
DeLUCA, GOODMAN AND DEASY, APRIL 19, 2017
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, APRIL 19, 2017
AN ACT
Amending the act of December 17, 1959 (P.L.1913, No.694),
entitled "An act prohibiting discrimination in rate of pay
because of sex; conferring powers and imposing duties on the
Department of Labor and Industry; and prescribing penalties,"
further providing for definitions, for wage rates and for
collection of unpaid wages.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 2(a) of the act of December 17, 1959
(P.L.1913, No.694), known as the Equal Pay Law, is amended and
the section is amended by adding subsections to read:
Section 2. Definitions.--(a) The term "employe," as used in
this act, shall mean any person employed for hire in any
[lawful] business, industry, trade or profession, or in any
other [lawful] enterprise in which individuals are gainfully
employed; including individuals employed by the Commonwealth or
any of its political subdivisions, including public bodies[:
Provided, however, That the term "employe" as used in this act
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shall not apply to any person or persons who is or are subject
to section 6 of the Federal Fair Labor Standards Act (Act of
June 25, 1938, as amended)].
* * *
(e.1) The term "wages" includes all earnings of an employe,
regardless of whether determined on time, task, piece,
commission or other method of calculation, including salaries
based on annual or other basis. The term "wages" also includes
fringe benefits, wage supplements or other compensation, whether
payable by the employer from funds of the employer or from
amounts withheld from the employe's pay by the employer.
(e.2) The term "comparable work" shall mean work that is
substantially similar in that it requires substantially similar
skill, effort and responsibility and is performed under similar
working conditions. A job title or job description alone shall
not determine comparability.
(e.3) The term "working conditions" shall include the
circumstances customarily taken into consideration in setting
salary or wages, including, but not limited to, reasonable shift
differentials, physical surroundings and hazards encountered by
employes performing a job.
* * *
Section 2. Sections 3 and 5 of the act are amended to read:
Section 3. Wage Rates.--(a) No employer having employes
subject to any provisions of this section shall discriminate[,
within any establishment in which such employes are employed,]
between employes on the basis of sex by paying wages to employes
[in such establishment] at a rate less than the rate at which
[he] the employer pays wages to employes of the opposite sex [in
such establishment] for [equal] comparable work [on jobs, the
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performance of which, requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions], except where [such payment is made pursuant to (1)
a seniority system; (2) a merit system; (3) a system which
measures earnings by quantity or quality of production; or (4) a
differential based on any other factor other than sex: Provided,
That any] the employer demonstrates:
(1) The wage differential is based upon one or more of the
following factors:
(i) A bona fide seniority system. Time spent on leave due to
a pregnancy-related condition and protected parental, family and
medical leave shall not reduce seniority.
( ii) A bona fide merit system.
(iii) A bona fide system which measures earnings by quantity
or quality of production or sales.
(iv) A bona fide factor other than sex, including education,
training or experience.
(2) Each factor relied upon is applied reasonably.
(3) The one or more factors relied upon account for the
entire wage differential.
(4) The job title or job description alone does not
determine if two jobs are comparable.
(a.1) Any employer who is paying a wage rate differential in
violation of [this] subsection (a) shall not, in order to comply
with the provisions of [this] subsection (a), reduce the wage
rate of any employe.
(a.2) The bona fide factor defense described under
subsection (a)(1)(iv):
(1) Shall apply only if the employer demonstrates that the
bona fide factor:
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(i) is not based upon or derived from a sex-based
differential in compensation;
(ii) is job-related with respect to the position in
question; and
(iii) is consistent with business necessity. For purposes of
this subparagraph, "business necessity" means an overriding
legitimate business purpose such that the factor relied upon
effectively fulfills the business purpose it is supposed to
serve.
(2) Shall not apply if the employe demonstrates that an
alternative business practice exists that would serve the same
business purpose without producing the wage differential.
(b) No labor organization, or its agents, representing
employes of an employer having employes subject to any
provisions of this section, shall cause or attempt to cause such
an employer to discriminate against an employe in violation of
subsection (a) of this section.
(c) It shall be an unlawful practice for an employer to:
(1) Require as a condition of employment that an employe
refrain from inquiring about, discussing or disclosing
information about the amount of the employe's wages or any other
employe's wages, including by requiring an employe to sign a
waiver or other document that purports to deny the employe the
right to inquire about, discuss, share or disclose the amount of
the employe's or another employe's wages.
(2) Rely on the wage history of a prospective employe from
any current or former employer of the individual in determining
the wages for the individual, except that an employer may rely
on prior wage history when it is provided by a prospective
employe to support a wage higher than the wage offered by the
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employer.
(3) Request or require as a condition of being interviewed,
or as a condition of continuing to be considered for an offer of
employment or as a condition of employment, that a prospective
employe disclose wages from a current or former employer.
(4) Seek from a current or former employer the previous
wages of a prospective employe, except that an employer may seek
to confirm prior wage information after an offer of employment
with compensation has been made to the prospective employe and
the prospective employe responds to the offer by providing prior
wage information to support a wage higher than offered by the
employer. Under these circumstances, the employer may only seek
to confirm prior wages after obtaining written authorization by
the prospective employe to do so.
(5) Contract with an employe to avoid complying with this
act.
(6) Discharge or in any other manner retaliate against any
employe or prospective employe because the employe or
prospective employe:
(i) opposed any act or practice made unlawful by this act;
(ii) made a report, verbally or in writing, alleging a
violation of this act;
(iii) made or is about to make a complaint or instituted or
caused to be instituted or is about to institute or cause to be
instituted any proceeding under or related to this act,
including an investigation conducted by the employer; or
(iv) testified, assisted or participated or is about to
testify, assist or participate in any manner in an investigation
or proceeding related to any act or practice made unlawful under
this act.
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(d) Taking adverse action against a person within ninety
days of the person's exercise of rights protected under this act
shall raise a rebuttable presumption of having done so in
retaliation for the exercise of those rights.
Section 5. Collection of Unpaid Wages.--(a) An employer who
[wilfully and knowingly] violates the provisions of section 3 of
this act shall be liable to the employe or employes affected in
the amount of [their unpaid wages and in addition, an equal
amount as liquidated damages.] the sum of the following:
(1) the difference between the amount of wages paid and the
maximum wage paid any other employe for equal work;
(2) compensatory damages;
(3) reasonable attorney fees and costs;
(4) punitive damages, if the violation is found to be
intentional or committed with reckless indifference to the
employe's rights under this act; and
(5) any other legal and equitable relief as may be
appropriate, including, but not limited to, employment
reinstatement and promotion.
(a.1) Action to recover such wages [and], damages and legal
or equitable relief may be maintained in any court of competent
jurisdiction by any one or more employes for and in behalf of
himself or themselves and other employes similarly situated.
(a.2) Any agreement between the employer and an employe to
work for less than the wage to which such employe is entitled
under this act shall be no defense to such action. [The court in
such action shall, in addition to any wages and damages, allow a
reasonable attorney's fee and costs of the action to the
plaintiff.] An employe's previous wage or salary history shall
not be a defense to an action.
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(a.3) At the request of any employe paid less than the wage
to which he is entitled under this act and due any damages as a
result of a violation, the [Secretary of Labor and Industry]
secretary may take an assignment of such wage and damages claim
for collection and shall bring any legal action necessary to
collect such claim. The secretary shall not be required to pay
the filing fee or other costs in connection with such action.
The secretary shall have power to join various claimants against
the employer in one cause of action.
(a.4) The Attorney General may also bring an action to
collect unpaid wages on behalf of one or more employes, as well
as damages, equitable relief and attorney fees and costs. The
costs and attorney fees shall be paid to the Commonwealth. The
Attorney General shall not be required to pay any filing fee or
other cost in connection with the action.
(b) Any action pursuant to the provisions of this act must
be brought within two years from the date upon which the
violation complained of occurs[.] unless the violation is a
wilful violation, in which case the action must be brought
within three years from the date of the violation. For the
purposes of this section, a violation occurs when:
(1) a discriminatory wage decision or practice is adopted;
(2) an individual is subject to a discriminatory wage
decision or practice; or
(3) an individual is affected by application of a
discriminatory wage decision or practice, including each time
wages paid result, in whole or in part, from a discriminatory
wage decision or practice.
Section 3. This act shall take effect in 30 days.
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