PRINTER'S NO. 803
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
821
Session of
2021
INTRODUCED BY BULLOCK, SHUSTERMAN, O'MARA, GALLOWAY, SAPPEY,
KOSIEROWSKI, ISAACSON, HOHENSTEIN, McNEILL, SANCHEZ, KINSEY,
HANBIDGE, ZABEL, HILL-EVANS, GUENST, DALEY, KRAJEWSKI,
PASHINSKI, HARRIS, T. DAVIS, N. NELSON, DEASY, DeLUCA,
GUZMAN, D. WILLIAMS, CIRESI, SCHWEYER, ROZZI, McCLINTON, LEE
AND KINKEAD, MARCH 8, 2021
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, MARCH 8, 2021
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 and for wage rates;
providing for additional violations; and further providing
for collection of unpaid wages and for penalties.
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 definitions 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,
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however, That the term "employe" as used in this act 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) "Comparable work" means work that is substantially
similar, including substantially similar skill levels, effort
and responsibility. The term includes work that is performed
under similar working conditions.
(e.2) "Working conditions" means the physical surroundings
and hazards encountered by employes performing a job, including
toxic chemicals or fumes, extreme temperatures and lack
of ventilation.
(e.3) "Wages" means the earnings of an employe, regardless
of whether determined on time, task, piece, commission or other
method of calculation, including salaries based on an 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.
* * *
Section 2. Section 3 of the act is 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, race or ethnicity by
paying different wages to employes [in such establishment at a
rate less than the rate at which he pays wages to employes of
the opposite sex in such establishment for equal work on jobs,
the performance of which, requires equal skill, effort, and
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responsibility, and which are] for comparable work 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 employer who is paying a wage
rate differential in violation of this subsection shall not in
order to comply with the provisions of this subsection, reduce
the wage rate of any employe.]:
(1) a bona fide seniority system that shall not reduce
seniority for time spent on leave due to a pregnancy-related
condition or protected parental, family or medical leave ;
(2) a bona fide merit system;
(3) a bona fide system which measures earnings by quantity
or quality of production; or
(4) a bona fide factor other than sex, race or ethnicity,
such as education, training or experience, to the extent that
the factor is reasonably related to the job and consistent with
business necessity.
(a.1) An employer who is paying a wage rate differential in
violation of this subsection shall not in order to comply with
the provisions of this subsection, reduce the wage rate of any
employe.
(a.2) A job title or job description alone shall not
determine if two jobs are comparable.
(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.
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(c) For purposes of this section, the term "business
necessity" means an overriding legitimate business purpose such
that the factor relied upon effectively fulfills the business
purpose it is supposed to serve. A factor will not be considered
consistent with business necessity if an employe demonstrates
that an alternative business practice exists that would serve
the same business purpose without producing the wage
differential.
Section 3. The act is amended by adding a section to read:
Section 3.1. Additional Violations.--(a) An employer
may not do any of the following with respect to an applicant's
or employe's prior wages:
(1) Require, as a condition of employment, that an
employe refrain from inquiring about, discussing or disclosing
information about the employe's own wages, including benefits or
other compensation, or about any other employe's wages.
(2) Rely on the wage history of a prospective employe from
any current or former employer of the individual in determining
whether to offer employment to or the amount of wages to offer
to the individual, except that an employer may rely on prior
wage history if it is provided voluntarily and without prompting
by a prospective employe to support a wage higher than the wage
offered by the 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
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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.
(b) An employer may not retaliate against or discharge
an employe for any of the following:
(1) Complaining about, opposing, instituting a
proceeding based on, or attempting or planning to complain about
or oppose or institute a proceeding based on, a violation of
this act.
(2) Testifying or planning to testify against an employer in
an action under this act.
(3) Assisting an investigation or otherwise participating in
an action under this act.
(4) Disclosing, inquiring about or discussing
wages, benefits or other compensation of the employe or
another employe.
(c) An employer may not contract with an employe to avoid
complying with this act.
(d) An employer shall include the expected compensation or
the range of expected compensation:
(1) for any position the employer publicly advertises as a
job opening; and
(2) to a prospective employe applying for employment upon
reasonable request.
Section 4. Sections 5 and 8 of the act are amended to read:
Section 5. [Collection of Unpaid Wages] Relief.--(a) An
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employer who wilfully and knowingly violates the provisions of
section 3 or 3.1 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, punitive
damages if the violation is found to be intentional or committed
with reckless indifference to the employe's or prospective
employe's rights under this act, and any other legal and
equitable relief as may be appropriate, including employment
reinstatement and promotion. 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. 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 and other relief, allow a reasonable attorney's fee and
costs of the action to the plaintiff. At the request of any
employe paid less than the wage to which [he] the employe is
entitled under this act, the Secretary of Labor and Industry may
take an assignment of such wage 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.
(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.] An action under this act shall
be commenced within three years of the date of the alleged
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violation. A violation shall be deemed to have occurred when any
of the following occurs:
(1) A discriminatory compensation decision or other practice
is adopted.
(2) An employe becomes subject to a discriminatory
compensation decision or other practice.
(3) An employe is affected by an application of a
discriminatory compensation decision or practice, including
each time wages, benefits or other compensations are paid,
resulting in whole or in part from a discriminatory decision or
practice.
Section 8. Penalties.--(a) Any employer who wilfully and
knowingly violates any provisions of this act, or who
retaliates, discharges or in any other manner discriminates
against any employe because such employe has made any complaint
to his employer, the secretary or any other person who
instituted or caused to be instituted any proceeding under or
related to this act, or has testified or is about to testify in
any such proceedings, shall, upon conviction thereof in a
summary proceeding, be sentenced to pay a fine of not less than
[fifty dollars ($50) nor more than two hundred dollars ($200)]
two thousand five hundred dollars ($2,500) nor more than five
thousand dollars ($5,000), and, upon default in such fine and
costs, shall undergo imprisonment for not less than thirty days
nor more than sixty days. [Each] Discrimination against each
individual employe and each day such a violation continues shall
constitute a separate offense.
(b) Any employer who fails to keep the records required
under this act or to furnish such records to the secretary upon
request, or who falsifies such records or who hinders, delays or
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otherwise interferes with the secretary or his authorized
representatives in the performance of his duties in the
enforcement of this act, or refuses such official entry into any
establishment which [he] the employe is authorized by this act
to inspect, shall, upon conviction thereof in a summary
proceeding, be sentenced to pay a fine of not less than [fifty
dollars ($50) nor more than two hundred dollars ($200)] two
thousand five hundred dollars ($2,500) nor more than five
thousand dollars ($5,000), and, upon default in such fine and
costs, shall undergo imprisonment for not less than thirty days
nor more than sixty days. Each day such a violation continues
shall constitute a separate offense.
Section 6. This act shall take effect in 60 days.
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