Bill Summary – FastDemocracy

PRIOR PRINTER'S NO. 85                            PRINTER'S NO.   2819
                     THE GENERAL ASSEMBLY OF PENNSYLVANIA
                         HOUSE BILL
                         No. 98
                                                Session of
                                                  2023
     INTRODUCED BY BULLOCK, ABNEY, SHUSTERMAN, O'MARA, BURGOS,
        SAPPEY, MADDEN, HILL-EVANS, CIRESI, GIRAL, SANCHEZ, RABB,
        SCHLOSSBERG, DELLOSO, PROBST, HANBIDGE, GALLOWAY, HOWARD,
        D. WILLIAMS, FIEDLER, KRAJEWSKI, PARKER, DEASY, STURLA,
        FREEMAN, KINKEAD, OTTEN, N. NELSON, FRANKEL, DALEY, GREEN AND
        BOYD, MARCH 7, 2023
     AS REPORTED FROM COMMITTEE ON LABOR AND INDUSTRY, HOUSE OF
        REPRESENTATIVES, AS AMENDED, MARCH 27, 2024
                                    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 POWERS OF SECRETARY, FOR collection of unpaid wages, FOR <--
    RECORDS AND REPORTING and for penalties; AND ESTABLISHING THE <--
    EQUAL PAY ENFORCEMENT FUND.
    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,
 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 labor 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,
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 the performance of which, requires equal skill, effort, and
 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;, WHICH MUST BE COMMUNICATED IN <--
 WRITING TO ALL EMPLOYES SUBJECT TO THE MERIT SYSTEM, INCLUDE
 PREDETERMINED, OBJECTIVE EVALUATION CRITERIA AND INCLUDE REGULAR
 EVALUATION INTERVALS;
    (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 section shall not, in order to comply with the
 provisions of this section, reduce the wage rate of an 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
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 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)   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
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 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.
    (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
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 reasonable request.
    Section 4.     Sections 5 4, 5, 6 and 8 of the act are amended   <--
 to read:
    SECTION 4.     POWERS OF SECRETARY.--(A)   THE SECRETARY SHALL   <--
 HAVE THE POWER, AND IT SHALL BE [HIS] THE DUTY OF THE SECRETARY,
 TO CARRY OUT AND ADMINISTER THE PROVISIONS OF THIS ACT.
    (B)     FOR THIS PURPOSE, THE SECRETARY OR [HIS] AN AUTHORIZED
 REPRESENTATIVE OF THE SECRETARY SHALL HAVE THE POWER TO ENTER
 THE ESTABLISHMENT OF ANY EMPLOYER TO INSPECT AND COPY PAYROLLS
 AND OTHER EMPLOYMENT RECORDS, TO COMPARE CHARACTER OF WORK AND
 OPERATIONS ON WHICH PERSONS EMPLOYED BY [HIM] THE EMPLOYER ARE
 ENGAGED, TO QUESTION SUCH PERSONS AND TO OBTAIN SUCH OTHER
 INFORMATION AS IS REASONABLY NECESSARY TO THE ADMINISTRATION AND
 ENFORCEMENT OF THIS ACT.
    (C)     THE SECRETARY SHALL HAVE THE POWER TO ISSUE SUCH RULES
 AND REGULATIONS CONSISTENT WITH THE PURPOSE AND PROVISIONS OF
 THIS ACT AS [HE] THE SECRETARY DEEMS NECESSARY TO MAKE EFFECTIVE
 THE PROVISIONS OF THIS ACT.
    (D)     THE SECRETARY SHALL HAVE THE POWER TO SUBPOENA
 WITNESSES, ADMINISTER OATHS, EXAMINE WITNESSES AND TAKE
 TESTIMONY OR COMPEL THE PRODUCTION OF DOCUMENTS. THE SECRETARY
 MAY PETITION THE COMMONWEALTH COURT TO ENFORCE ANY ORDER OR
 SUBPOENA ISSUED UNDER THIS ACT.
    (E)     THE SECRETARY SHALL HAVE THE POWER TO IMPOSE
 ADMINISTRATIVE FINES UNDER SECTION 8.
    Section 5.     [Collection of Unpaid Wages] Relief.--(a)   An
 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] the employe's unpaid
 wages and in addition, an equal amount as liquidated damages,
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 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] THE EMPLOYE OR EMPLOYES <--
 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
 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.
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    (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 6.   RECORDS AND REPORTING.--EVERY EMPLOYER SUBJECT TO <--
 THIS ACT SHALL MAKE, KEEP AND MAINTAIN SUCH RECORDS OF THE WAGES
 AND WAGE RATES, JOB CLASSIFICATIONS AND OTHER TERMS AND
 CONDITIONS OF EMPLOYMENT OF THE PERSONS EMPLOYED BY [HIM] THE
 EMPLOYER, AND SHALL PRESERVE SUCH RECORDS FOR SUCH PERIOD AND
 SHALL MAKE SUCH REPORTS THEREFROM, AS THE SECRETARY SHALL
 PRESCRIBE.
    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] an 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.
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    (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
 otherwise interferes with the secretary or [his] the secretary's
 authorized representatives in the performance of [his] the
 secretary's duties in the enforcement of this act, or refuses
 such official entry into any establishment which [he] the
 employe SECRETARY 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.
    (C)   THE SECRETARY MAY IMPOSE AN ADMINISTRATIVE PENALTY OF      <--
 NOT LESS THAN TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) NOR
 MORE THAN FIVE THOUSAND DOLLARS ($5,000) FOR EACH VIOLATION OF
 THIS ACT. THIS SUBSECTION SHALL BE SUBJECT TO 2 PA.C.S. CHS. 5
 SUBCH. A (RELATING TO PRACTICE AND PROCEDURE OF COMMONWEALTH
 AGENCIES) AND 7 SUBCH. A (RELATING TO JUDICIAL REVIEW OF
 COMMONWEALTH AGENCY ACTION).
    (D)   THE SECRETARY MAY ORDER AN EMPLOYER TO TAKE A CORRECTIVE
 ACTION WHICH THE SECRETARY DEEMS NECESSARY TO ADDRESS A
 VIOLATION OF THIS ACT.
    SECTION 5.   THE ACT IS AMENDED BY ADDING A SECTION TO READ:
    SECTION 8.1.   EQUAL PAY ENFORCEMENT FUND.--THE EQUAL PAY
 ENFORCEMENT FUND IS ESTABLISHED AS A SEPARATE FUND IN THE STATE
 TREASURY. THE FOLLOWING SHALL APPLY:
    (1)   ALL FINES IMPOSED AND COLLECTED UNDER SECTION 8 SHALL BE
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 DEPOSITED INTO THE EQUAL PAY ENFORCEMENT FUND.
    (2)   THE MONEY IN THE EQUAL PAY ENFORCEMENT FUND IS
 APPROPRIATED ON A CONTINUING BASIS TO THE DEPARTMENT TO BE USED
 FOR ENFORCEMENT OF THIS ACT.
    Section 5 6.   This act shall take effect in 60 days ONE YEAR. <--
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Statutes/Laws affected: 
Printer's No. 0085: P.L.1913, No.694
Printer's No. 2819: P.L.1913, No.694