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AB-435 Wage discrimination.(2007-2008)

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Enrolled  September 10, 2007
Passed  IN  Senate  September 04, 2007
Passed  IN  Assembly  September 05, 2007
Amended  IN  Senate  June 28, 2007
Amended  IN  Assembly  April 23, 2007

CALIFORNIA LEGISLATURE— 2007–2008 REGULAR SESSION

Assembly Bill
No. 435

Introduced  by  Assembly Member Brownley
 (Coauthor(s): Assembly Member Berg, Jones)
 (Coauthor(s): Senator Kuehl, Migden)

February 16, 2007

An act to amend Section 1197.5 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 435, Brownley. Wage discrimination.
Existing law prohibits any employer from discriminating in the amount of wages paid for equal work, based upon the sex of the employee. These provisions are enforced by the Division of Labor Standards Enforcement by investigating complaints filed by employees and filing and prosecuting civil actions on their behalf.
Existing law requires employers to maintain the wage and job classification records of its employees for 2 years.
This bill would require employers to maintain these records for 5 years.
Existing law provides a 2-year statute of limitations for an employee to bring a civil action against an employer to recover wages. This limitation is increased to 3 years in the case of willful violation by the employer.
This bill would extend the statute of limitations to 4 years for a civil action by an employee to recover wages and to 5 years for actions in which there is willful misconduct of the employer.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1197.5 of the Labor Code is amended to read:

1197.5.
 (a) No employer shall pay any individual in the employer’s employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal 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 pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex.
(b) Any employer who violates subdivision (a) is liable to the employee affected in the amount of the wages, and interest thereon, of which the employee is deprived by reason of the violation, and in an additional equal amount as liquidated damages.
(c) The provisions of this section are administered and enforced by the Division of Labor Standards Enforcement. If the division finds that an employer has violated this section, it may supervise the payment of wages and interest found to be due and unpaid to employees under subdivision (a). Acceptance of payment in full made by an employer and approved by the division shall constitute a waiver on the part of the employee of the employee’s cause of action under subdivision (g).
(d) Every employer shall maintain records of the wages and wage rates, job classifications, and other terms and conditions of employment of the persons employed by the employer. All of the records shall be kept on file for a period of five years.
(e) Any employee may file a complaint with the division that the wages paid are less than the wages to which the employee is entitled under subdivision (a). These complaints shall be investigated as provided in subdivision (b) of Section 98.7. The name of any employee who submits to the division a complaint regarding an alleged violation of subdivision (a) shall be kept confidential by the division until validity of the complaint is established by the division, or unless the confidentiality must be abridged by the division in order to investigate the complaint. The name of the complaining employee shall remain confidential if the complaint is withdrawn before the confidentiality is abridged by the division. The division shall take all proceedings necessary to enforce the payment of any sums found to be due and unpaid to these employees.
(f) The department or division may commence and prosecute, unless otherwise requested by the employee or affected group of employees, a civil action on behalf of the employee and on behalf of a similarly affected group of employees to recover unpaid wages and liquidated damages under subdivision (a), and in addition shall be entitled to recover costs of suit. The consent of any employee to the bringing of any action shall constitute a waiver on the part of the employee of the employee’s cause of action under subdivision (g) unless the action is dismissed without prejudice by the department or the division, except that the employee may intervene in the suit or may initiate independent action if the suit has not been determined within 180 days from the date of the filing of the complaint by the department or division.
(g) Any employee receiving less than the wage to which the employee is entitled under this section may recover in a civil action the balance of the wages, including interest thereon, and an equal amount as liquidated damages, together with the costs of the suit and reasonable attorney’s fees, notwithstanding any agreement to work for a lesser wage.
(h) A civil action to recover wages under subdivision (a) may be commenced no later than four years after the cause of action occurs, except that a cause of action arising out of a willful violation may be commenced no later than five years after the cause of action occurs.
(i) If an employee recovers amounts due the employee under subdivision (b), and also files a complaint or brings an action under subdivision (d) of Section 206 of Title 29 of the United States Code which results in an additional recovery under federal law for the same violation, the employee shall return to the employer the amounts recovered under subdivision (b), or the amounts recovered under federal law, whichever is less.