AN ACT Relating to workplace practices to achieve gender pay equity; amending RCW 49.12.175; adding a new chapter to Title 49 RCW; recodifying RCW 49.12.175; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

The legislature intends to update the existing Washington state equal pay act, not modified since 1943, to address income disparities, employer discrimination, and retaliation practices, and to reflect the equal status of all workers in Washington state.

(1) "Compensation" means discretionary and nondiscretionary wages and benefits provided by an employer to an employee as a result of the employment relationship.

(2) "Department" means the department of labor and industries.

(3) "Director" means the director of the department of labor and industries, or the director's designated representative.

(4) "Employee" means an employee who is employed in the business of the employee's employer whether by way of manual labor or otherwise.

(5) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state, and any municipal corporation or quasi-municipal corporation.

Sec. 3.  RCW 49.12.175 and 1943 c 254 s 1 are each amended to read as follows:

(1) Any employer in this state((, employing both males and females, who shall discriminate in any way in the payment of wages as between sexes or who shall pay any female a less wage, be it time or piece work, or salary, than is being paid to males)) who discriminates in any way in providing compensation based on gender between similarly employed((, or in any employment formerly performed by males, shall be)) employees of the employer is guilty of a misdemeanor. If any ((female)) employee ((shall)) receives less compensation because of ((being discriminated against)) discrimination on account of ((her sex, and)) gender in violation of this section, ((she shall be)) that employee is entitled to ((recover in a civil action the full amount of compensation that she would have received had she not been discriminated against)) the remedies in sections 7 and 8 of this act. In such action, however, the employer shall be credited with any compensation which has been paid to ((her)) the employee upon account. ((A differential in wages between employees based in good faith on a factor or factors other than sex shall not constitute discrimination within the meaning of RCW 49.12.010 through 49.12.180.))

(2) An employer may not, on the basis of gender, limit or deprive an employee of career advancement opportunities that would otherwise be available.

(3) A differential in career advancement based on a bona fide job-related factor or factors that meet the criteria in RCW 49.12.175(3)(a) (i) through (iii) (as recodified by this act) does not constitute discrimination within the meaning of this section. Such bona fide factors include, but are not limited to, the factors specified in RCW 49.12.175(3)(b) (i) through (iv) (as recodified by this act).

(4)(a) If it is determined that an employer committed a pattern of violations of this section as to an employee or committed a violation of this section through application of a formal or informal employer policy or practice, the employee is entitled to the remedies in this section and in section 8 of this act.

(b) Upon complaint by an employee, the director must investigate to determine if there has been compliance with this section and the rules adopted to implement this section. The director, upon complaint, may also initiate an investigation on behalf of one or more employees for a violation of this section and the rules adopted to implement this section. The director may require the testimony of witnesses and production of documents as part of an investigation.

(c) If the director determines that a violation occurred, the director shall attempt to resolve the violation by conference and conciliation.

(d) If no agreement is reached to resolve the violation and the director determines that the employer committed a pattern of violations of this section as to an employee or committed a violation of this section through application of a formal or informal employer policy or practice, the director may issue a citation and notice of assessment and order:

(i) The employer to pay to the employee actual damages, statutory damages equal to the actual damages or five thousand dollars, whichever is greater, and interest of one percent per month on all compensation owed;

(ii) The employer to pay to the department the costs of investigation and enforcement; and

(iii) Any other appropriate relief.

(e) In addition to the citation and notice of assessment, if the director determines that the employer committed a pattern of violations of this section as to an employee or committed a violation of this section through application of a formal or informal employer policy or practice, the director may order payment to the department of a civil penalty. The violation as to each affected employee constitutes a separate violation.

(i) For a first violation, the civil penalty may not exceed five hundred dollars.

(ii) For a repeat violation, the civil penalty may not exceed one thousand dollars or ten percent of the damages, whichever is greater.

(f) Section 7 (3), (4), and (5) of this act applies to this section.

(a) Require nondisclosure by an employee of his or her wages as a condition of employment; or

(b) Require an employee to sign a waiver or other document that prevents the employee from disclosing the amount of the employee's wages.

(2) An employer may not discharge or in any other manner retaliate against an employee for:

(a) Inquiring about, disclosing, comparing, or otherwise discussing the employee's wages or the wages of any other employee;

(b) Asking the employer to provide a reason for the employee's wages or lack of opportunity for advancement; or

(c) Aiding or encouraging an employee to exercise his or her rights under this section.

(3) An employer may prohibit an employee who has access to compensation information of other employees or applicants as part of such employee's essential job functions from disclosing the wages of the other employees or applicants to individuals who do not otherwise have access to such information, unless the disclosure is in response to a complaint or charge, in furtherance of an investigation, or consistent with the employer's legal duty to provide the information and the disclosure is part of the employee's essential job functions. An employee described in this subsection otherwise has the protections of this section, including to disclose the employee's wages without retaliation.

(4) This section does not require an employee to disclose the employee's compensation.

(5) This section does not permit an employee to violate the requirements in chapter 49.17 RCW and rules adopted under that chapter.

(2) If the director determines that a violation occurred, the director shall attempt to resolve the violation by conference and conciliation.

(a) If no agreement is reached to resolve the violation, the director may issue a citation and notice of assessment and order the employer to pay to the complainant actual damages; statutory damages equal to the actual damages or five thousand dollars, whichever is greater; interest of one percent per month on all compensation owed; payment to the department of the costs of investigation and enforcement; and any other appropriate relief.

(b) In addition to the citation and notice of assessment, the director may order payment to the department of a civil penalty. For purposes of a civil penalty for violation of RCW 49.12.175 (as recodified by this act) and section 6 of this act, the violation as to each affected employee constitutes a separate violation.

(i) For a first violation, the civil penalty may not exceed five hundred dollars.

(ii) For a repeat violation, the civil penalty may not exceed one thousand dollars or ten percent of the damages, whichever is greater.

(3) An appeal from the director's determination may be taken in accordance with chapter 34.05 RCW. An employee who prevails is entitled to costs and reasonable attorneys' fees.

(4) The department must deposit civil penalties paid under this section in the supplemental pension fund established under RCW 51.44.033.

(5) Any wages and interest owed must be calculated from four years from the last violation before the complaint.

(2) An employee alleging a violation of section 4 of this act is entitled to relief only if the court determines that the employer committed a pattern of violations as to the employee or committed a violation through application of a formal or informal employer policy or practice.

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