HB 2 Digest as submitted by Barry Regula, Government Relations Chair, Bossier Chamber

Summary Highlighted changes from current law:

• Proposed law retains present law but extends present law to cover men as well as women.
• Retains present law but extends present law to cover local government employees and private sector employees.
• Changes the definition of “employee” to mean any person who performs work for compensation.
• Proposed law extends the definition of “employer” from an organizational unit of the state to all employers that employ 50 or more persons.
• Removes the specific reference to “within the same agency” and further provides that the work performed that is eligible for equal pay may be the same or equal to the work done by another employee.
• Allows for an exception in differences in pay if the difference is based on a factor other than sex and is consistent with a business necessity.
• Proposed law removes the provision in present law authorizing an exception if no alternative employment practice would serve the same legitimate business purpose without producing such pay difference.
• Disallows discrimination based on sex regardless of whether the discrimination is intentional or unintentional.
• Clarifies that an employer is prohibited from retaliating against an employee for providing information or testimony for a fellow employee to pursue his rights under the law.
• Proposed law provides that an employee’s agreement to work at a rate of compensation that is less than the rate to which such employee is entitled may not be used as a defense by the employer in any action against him brought pursuant to proposed law unless such employee negotiated the lesser compensation for specific accommodations.
• Proposed law changes jurisdiction and venue of suits from the 19th JDC to a district court of competent jurisdiction. Prohibits any employee from filing a civil suit prior to the expiration of 180 days from the filing of the complaint with the commission.
• Requires the employer to be liable for unpaid wages and interest. Further requires the award for unpaid wages not to exceed the payment of such unpaid wages for 36 months. Requires the prevailing party to be awarded reasonable attorney fees.
• Authorizes the court to reinstate employment, grant a promotion, or compensate the employee for lost benefits.
• Proposed law deletes present law and allows monetary relief beyond attorney fees to be awarded for losses incurred between the time of the district court’s final decision and the final determination of an appellate court.
• Proposed law retains present law but further requires the sex of each employee be recorded and retained.
• Requires any records created, preserved, or obtained to be confidential and privileged, and not subject to disclosure under the Public Records Law when in the custody or control of the commission. Authorizes the employer to seek a protective order and an in camera inspection by the court of competent jurisdiction of such records prior to any public disclosure.
Bill Digest:
No employer may discriminate against an employee on the basis of sex by paying wages to an employee at a rate less than that paid within the same agency by the same employer to another employee of a different sex for the same or substantially similar work on jobs in which the employee’s performance requires that require equal skill, effort, education, and responsibility and that are performed under similar conditions or involve the same or equal working conditions including time worked in the position.

Does not prohibit the payment of different wage rates to employees when such payment is made pursuant to any of the following:
(1) A seniority system.
(2) A merit system.
(3) A system that measures earnings by quantity or quality of production.

It shall be unlawful for any employer to discriminate, retaliate, or take any adverse employment action, including but not limited to termination or in any other manner discriminate against any employee for inquiring about, disclosing, comparing, or otherwise discussing the employee’s wages or the wages of any other employee, or aiding or encouraging any other employee to exercise his rights under pursuant to this Chapter.
It shall be unlawful for an employer subject to this Chapter to discriminate, retaliate, or take any adverse employment action, including but not limited to termination against an employee because, in exercising or attempting to exercise the employee’s rights under pursuant to this Chapter, such the employee:
(1) Has filed any complaint or has instituted or caused to be instituted any proceeding to enforce the employee’s rights under pursuant to this Chapter.
(2) Has provided or will provide any information in connection with any inquiry, hearing, or proceeding relating to any right afforded to an employee pursuant to this Chapter, regardless of whether the information is related to the employee’s rights or the rights of another employee.
(3) Has testified or will testify in any inquiry, hearing, or proceeding relating to any right afforded to an employee pursuant to this Chapter.

An employee’s agreement to work at a rate of compensation that is less than the rate to which the employee is entitled may not be used as a defense by the employer in any action against him brought pursuant to this Chapter unless an employee negotiated the lesser compensation for specific accommodations.

The provisions of this Chapter shall be construed to prohibit discrimination in pay regardless of whether the differential in pay is intentional or unintentional.

Any employee who in good faith believes that her his employer is in violation of this Chapter shall submit written notice of the alleged violation to his employer. An employer who receives such written notice from an employee shall have sixty days from receipt of the notice to investigate the matter and remedy any violation of this Chapter discriminatory differential in pay.

If the employer remedies the violation in a manner that complies with the statute and does so within the time provided herein in this Subsection, the employee may not bring any action against or seek unpaid wages from the employer pursuant to this Chapter except as provided in Subsections B and C of this Section regarding the remedied complaint.

If an the employer fails to resolve the dispute to the satisfaction of such the employee within the time provided herein allotted sixty days, the employee may file a complaint with the commission requesting an investigation of the complaint pursuant to this Chapter, Chapter 3-A of this Title, or R.S. 51:2257.

C. If the commission finds evidence of discriminatory, retaliatory or other adverse employment action on the part of the employer in violation of this Chapter but is unable to resolve or mediate the dispute, or fails to render a decision as to regarding the dispute within one hundred eighty days from the filing of the complaint, or issues a finding of no discrimination on the part of the employer, the employee may institute a civil suit.
An employer who is found to have violated the provisions of this Chapter shall be liable to the affected employees for unpaid wages and reasonable attorney fees and costs and interest. The award for unpaid wages shall not exceed the payment of unpaid wages for thirty-six months. The prevailing party shall be awarded reasonable attorney fees. In addition to the damages provided for in this Subsection, the court may award the employee up to the amount of any unpaid wages, reinstatement of employment, promotion, or compensation.

Every employer subject to this Chapter shall create and preserve records reflecting the name, sex, address, and position of each employee, and all wages paid to each employee. These records shall be preserved for a period of not less than three years from the employee’s last date of employment with the employer.

Any records created, preserved, or obtained pursuant to this Chapter shall be confidential and privileged, and shall not be subject to disclosure under the Public Records Law when in the custody or control of the commission.