Report Title:

Equal Pay

Description:

Prohibits employers from discriminating between employees on the basis of sex by paying wages to an employee at a rate less than the rate at which the employer pays wages to another employee of the opposite sex for the same or substantially similar work.

HOUSE OF REPRESENTATIVES

H.B. NO.

2025

TWENTY-SECOND LEGISLATURE, 2004

 

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 Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

EQUAL PAY

§ -1 Short title. This Act may be cited as the Equal Pay Act of 2004.

§ -2 Definitions. As used in this chapter:

"Department" means the department of labor and industrial relations.

"Director" means the director of labor and industrial relations.

"Employee" means any individual permitted to work by an employer.

"Employer" means an individual, partnership, corporation, association, business, trust, person, or entity for whom four or more employees are gainfully employed in Hawaii and includes the State, any state officer, department, or agency, and any unit of county government.

§ -3 Prohibited acts. (a) No employer may discriminate between employees on the basis of sex by paying wages to an employee at a rate less than the rate at which the employer pays wages to another employee of the opposite sex for the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions, except where the payment is made under:

(1) A seniority system;

(2) A merit system;

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

(4) A differential based upon any other factor other than sex.

An employer who is paying wages in violation of this chapter may not reduce the wages of any other employee to comply with this chapter.

Nothing in this chapter shall be construed to require an employer to pay to any employee at a workplace in a particular county wages that are equal to the wages paid by that employer to employees at a workplace in another county, even though the employees perform jobs that require equal skill, effort, and responsibility and that are performed under similar working conditions.

(b) It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under this chapter. It is unlawful for any employer to discharge or in any other manner discriminate against any individual for inquiring about, disclosing, comparing, or otherwise discussing the employee's wages or the wages of any other employee, or aiding or encouraging any person to exercise rights under this chapter.

(c) It is unlawful for any person to discharge or in any other manner discriminate against any individual because the individual:

(1) Has filed any charge or has instituted or caused to be instituted any proceeding under or related to this chapter;

(2) Has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this chapter; or

(3) Has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this chapter.

§ -4 Enforcement. The director shall administer and enforce this chapter, including adopting necessary rules.

The department may conduct investigations in connection with the administration and enforcement of this chapter and the authorized officers and employees of the department may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter and may enter and inspect such places and such records at reasonable times during regular business hours, question the employees and investigate the facts, conditions, practices, or matters as deemed necessary or appropriate to determine whether any person has violated this chapter or to aid in the enforcement of this chapter.

§ -5 Recordkeeping requirements. An employer subject to this chapter shall make and preserve records that document the name, address, and occupation of each employee, the wages paid to each employee, and any other information the director by rule may deem necessary and appropriate for enforcement of this chapter. An employer subject to this chapter shall preserve those records for a period of not less than three years and shall make reports from the records as prescribed by rule.

§ -6 Witnesses; subpoena. The director may administer oaths, take or cause to be taken the depositions of witnesses, and require by subpoena the attendance and testimony of witnesses and the production of all books, records, and other evidence relative to the matter under investigation. A subpoena issued under this section shall be signed and issued by the director.

In case of failure of any person to comply with any subpoena lawfully issued under this section or on the refusal of any witness to produce evidence or to testify to any matter, it is the duty of any circuit court, upon application of the director, to compel obedience by proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued by such court or a refusal to testify. The director may certify to official acts.

§ -7 Violations; fines and penalties. (a) If an employee is paid less than the wage to which the employee is entitled in violation of section -3, the employee may recover, in a civil action, the entire amount of any underpayment together with interest and the costs and reasonable attorney's fees as may be allowed by the court and as necessary to make the employee whole. At the request of the employee or on a motion of the director, the department may make an assignment of the wage claim in trust for the assigning employee and may bring any legal action necessary to collect the claim, and the employer shall be required to pay the costs incurred in collecting the claim. Every such action shall be brought within three years from the date the employee learned of the underpayment.

(b) The director is authorized to supervise the payment of the unpaid wages owing to any employee or employees under this chapter and may bring any legal action necessary to recover the amount of unpaid wages and penalties, and the employer shall be required to pay the costs. Any sums recovered by the director on behalf of an employee under this section shall be paid to the employee or employees affected.

(c) Any employer who violates this chapter or any rule adopted under this chapter is subject to a civil penalty not to exceed $2,500 for each violation for each employee affected. In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the employer charged and the gravity of the violation shall be considered. The penalty may be recovered in a civil action brought by the director in any circuit court.

§ -8 Refusal to pay wages or final compensation; retaliatory discharge or discrimination. (a) Any employer who has been ordered by the director or the court to pay wages due an employee and who fails to do so within fifteen days after the order is entered is liable to pay a penalty of one per cent per calendar day to the employee for each day of delay in paying the wages to the employee, up to an amount equal to twice the sum of unpaid wages due the employee.

(b) Any employer, or any agent of an employer, who knowingly discharges or in any other manner knowingly discriminates against any employee because that employee has made a complaint to the employee's employer, or to the director, that any employee of the employer has not been paid in accordance with this chapter, or because that employee has instituted or caused to be instituted any proceeding under or related to this chapter or consulted counsel for such purposes, or because that employee has testified or is about to testify in an investigation or proceeding under this chapter, or offers any evidence of any violation of this chapter shall be liable to the employee for such legal and equitable relief as may be appropriate to effectuate the purposes of this section, the value of any lost benefits, backpay, and front pay as appropriate, so long as the employee has made reasonable efforts to mitigate damages, and an additional equal amount as liquidated damages.

§ -9 Notification. Every employer covered by this chapter shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted, a notice, to be prepared or approved by the director, summarizing the requirements of this chapter and information pertaining to the filing of a charge. The director shall furnish copies of summaries and rules to employers upon request without charge.

§ -10 Outreach and education efforts. The department shall conduct ongoing outreach and education efforts concerning this chapter targeted toward employers, labor organizations, and other appropriate organizations. In addition, the department shall conduct studies and provide information biennially to employers, labor organizations, and the general public concerning the means available to eliminate pay disparities between men and women, including:

(1) Conducting and promoting research to develop the means to correct the conditions leading to the pay disparities;

(2) Publishing and otherwise making available to employers, labor organizations, professional associations, educational institutions, the legislature, the media, and the general public the findings resulting from studies and other materials, relating to the pay disparities;

(3) Providing information to employers, labor organizations, and other interested persons on the means of eliminating pay disparities; and

(4) Developing guidelines to enable employers to evaluate job categories based on objective criteria, such as educational requirements, skill requirements, independence, working conditions, and responsibility. These guidelines shall be designed to enable employers to voluntarily compare wages paid for different jobs to determine if the pay scales involved adequately and fairly reflect the educational requirements, skill requirements, independence, working conditions, and responsibility for each such job with the goal of eliminating unfair pay disparities between occupations traditionally dominated by men or women.

§ -11 Annual report. The department shall file with the governor and the legislature, not later than January 1 of each year, a report of its activities regarding administration and enforcement of this chapter for the preceding fiscal year."

SECTION 2. This Act shall take effect upon its approval.

INTRODUCED BY:

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