South Carolina General Assembly
115th Session, 2003-2004

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S. 428

STATUS INFORMATION

General Bill
Sponsors: Senators Glover, Ford and Anderson
Document Path: l:\council\bills\nbd\11297ac03.doc

Introduced in the Senate on February 27, 2003
Currently residing in the Senate Committee on Labor, Commerce and Industry

Summary: Fair Pay Act

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
   2/27/2003  Senate  Introduced and read first time SJ-6
   2/27/2003  Senate  Referred to Committee on Labor, Commerce and Industry 
                        SJ-6

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

2/27/2003

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 12 TO TITLE 41 SO AS TO ENACT THE FAIR PAY ACT OF 2003 WHICH MAKES IT UNLAWFUL FOR AN EMPLOYER WHO EMPLOYS THREE OR MORE PERSONS TO DISCRIMINATE BETWEEN EMPLOYEES ON THE BASIS OF SEX, RACE, OR NATIONAL ORIGIN BY PAYING WAGES AT A DIFFERENT RATE FOR EQUIVALENT JOBS AND TO PROVIDE RELIEF.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Title 41 of the 1976 Code is amended by adding:

"CHAPTER 12

Fair Pay

Section 41-12-10.    This chapter may be cited as the 'Fair Pay Act of 2003'.

Section 41-12-20.    (A)    The General Assembly finds that:

(1)    Despite federal and state laws banning discrimination in employment and pay, in both the private and public sector, wage differentials persist between women and men and between minorities and nonminorities in the same jobs and in jobs that are dissimilar but that require equivalent composites of skill, effort, responsibility, and working conditions;

(2)    The existence of these wage differentials:

(a)    depresses wages and living standards for employees necessary for their health and efficiency;

(b)    reduces family incomes and contributes to the higher poverty rates among female headed and minority households;

(c)    prevents the maximum utilization of the available labor resources;

(d)    tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce; and

(e)    constitutes an unfair method of competition;

(3)    Discrimination in wage setting practices has played a role in depressing wages for women and minorities generally;

(4)    Many individuals work in occupations that are dominated by individuals of their same sex, race, or national origin, and discrimination in hiring, job assignment, and promotion has played a role in establishing and maintaining segregated work forces;

(5)    Eliminating discrimination in compensation based on sex, race, and national origin would have positive effects, including:

(a)    providing a solution to problems in the economy created by discriminatory wage differentials;

(b)    reducing the number of working women and people of color earning low wages, thereby lowering their incidence of poverty during normal working years and in retirement; and

(c)    promoting stable families by raising family incomes.

(B)    It is the purpose of this chapter to correct and as rapidly as practicable to eliminate discriminatory wage practices based on sex, race, or national origin or any combination of these.

Section 41-12-30.    As used in this chapter:

(1)    'Department' means the Department of Labor, Licensing and Regulation.

(2)    'Employ' means to suffer or permit to work.

(3)    'Employee' means a person employed by an employer and includes all of an employer's permanent employees, whether working full time or part time, and any temporary employee employed by an employer for a period of at least three months. 'Employee' does not include an individual employed by his parents, spouse, or child.

(4)    'Employer' means a person who employs three or more persons and includes the State and all political subdivisions of the State.

(5)    'Equivalent jobs' means jobs or occupations that are equal within the meaning of the Equal Pay Act of 1963, 29 U.S.C. 206(d), or jobs or occupations that are dissimilar but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions.

(6)    'Labor organization' means an organization that exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms and conditions of employment, or of other mutual aid or protection in connection with employment.

(7)    'Market rates' means the rates that employers within a prescribed geographic area actually pay, or are reported to pay for specific jobs, as determined by formal or informal surveys, wage studies, or other means.

(8)    'Person' means one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, receivers, and the State and all political subdivisions and agencies of the State.

(9)    'Wages' and 'wage rates' include all compensation in any form that an employer provides to employees in payment for work done or services rendered including, but not limited to, base pay, bonuses, commissions, awards, tips, or various forms of nonmonetary compensation if provided in lieu of or in addition to monetary compensation and that have economic value to an employee.

Section 41-12-40.    (A)    It is an unlawful employment practice in violation of this chapter for an employer to discriminate between employees on the basis of sex, race, or national original or any combination of these by paying wages to employees:

(1)    at a rate less than the rate paid to employees of the opposite sex or of a different race or national origin for work in equivalent jobs; or

(2)    in a job that is dominated by employees of a particular sex, race, or national origin at a rate less than the rate at which the employer pays to employees in another job that is dominated by employees of the opposite sex or of a different race or national origin for work on equivalent jobs.

(B)    Notwithstanding subsection (A), it is not an unlawful employment practice for an employer to pay different wage rates to employees, where these payments are made pursuant to:

(1)    a bona fide seniority or merit system;

(2)    a system that measures earnings by quantity or quality of production; or

(3)    any bona fide factor other than sex, race, or national origin; however, wage differentials based on varying market rates for equivalent jobs or the differing economic benefits to the employer of equivalent jobs may not be considered differentials based on bona fide factors other than sex, race, or national origin.

(C)    An employer who is paying wages in violation of this section must not, in order to comply with the provisions of this section, reduce the wages of any employee.

(D)    No labor organization or its agents representing employees of an employer having employees subject to any provision of this chapter shall cause or attempt to cause the employer to discriminate against an employee in violation of subsection (A).

(E)    The Department of Labor, Licensing and Regulation shall promulgate regulations specifying the criteria for determining whether a job is dominated by employees of a particular sex, race, or national origin. Criteria shall include, but is not limited to:

(1)    whether the job has ever been formally classified as or traditionally considered to be a 'male' or 'female' or 'white' or 'minority' job;

(2)    whether there is a history of discrimination against women or people of color with regard to wages, assignment, or access to jobs or other terms and conditions of employment; and

(3)    the demographic composition of the work force in equivalent jobs (e.g., numbers or percentages of women, men, white persons, and people of color). The regulations must not include a list of jobs.

Section 41-12-50.    It is an unlawful employment practice in violation of this chapter for an employer to:

(1)    take adverse actions or otherwise discriminate against an individual because the individual has opposed an act or practice made unlawful by this chapter, has sought to enforce rights protected under this chapter, or has testified, assisted, or participated in any manner in an investigation, hearing, or other proceeding to enforce this chapter; or

(2)    discharge or in any other manner discriminate against, coerce, intimidate, threaten, or interfere with an employee or any other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee's wages or the wages of any other employee or because the employee exercised, enjoyed, aided, or encouraged any other person to exercise or enjoy any right granted or protected by this chapter.

Section 41-12-60.    (A)    Upon commencement of an individual's employment and at least annually thereafter, every employer subject to this chapter shall provide to each employee a written statement sufficient to inform the employee of his or her job title, wage rate, and how the wage is calculated. This notice must be supplemented whenever an employee is promoted or reassigned to a different position with the employer; however, the employer is not required to issue supplemental notifications for temporary reassignments that are no greater than three months in duration.

(B)    Every employer subject to this chapter shall make and preserve records that document the wages paid to employees and that document and support the method, system, calculations, and other bases used to establish, adjust, and determine the wage rates paid to the employees. Every employer subject to this chapter shall preserve records and shall submit reports as prescribed by regulation or order by the department.

(C)    The regulations promulgated pursuant to this chapter relating to the form of reports required by subsection (B) shall provide for protection of the confidentiality of employees and shall expressly require that reports must not include the names or other identifying information from which readers could discern the identities of employees. The regulations also may identify circumstances that warrant a prohibition on disclosure of reports or information identifying the employer.

(D)    The department may use the information and data it collects pursuant to subsection (B) for statistical and research purposes and may compile and publish studies, analyses, reports, and surveys based on the information and data, as it considers appropriate.

Section 41-12-70.    (A)    In an action in which a court or jury finds that an employer has engaged in acts that violate Section 41-12-40, 41-12-50, or 41-12-60, the court or jury shall award to an affected employee monetary relief, including back pay in an amount equal to the difference between the employee's actual earnings and what the employee would have earned but for the employer's unlawful practices, and an additional amount in compensatory and punitive damages, as appropriate.

(B)    In an action in which a court or jury finds that an employer has engaged in acts that violate Section 41-12-40, 41-12-50, or 41-12-60, the court shall enjoin the employer from continuing to discriminate against affected employees and shall direct the employer to comply with the provisions of this chapter and may order the employer to take additional affirmative steps as are necessary, including reinstatement or reclassification of affected workers, to ensure an end to unlawful discrimination.

(C)    In an action in which an affected employee prevails in a claim against an employer, the court shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the employer.

Section 41-12-80.    (A)    An action to recover the damages or equitable relief prescribed in Section 41-12-70 may be maintained against an employer in a court of competent jurisdiction by one or more employees or their representative for or on behalf of the employees or the employees and other employees similarly situated.

(B)    The department shall receive, investigate, and attempt to resolve complaints of violations of Sections 41-12-40, 41-12-50, and 41-12-60.

(C)    If the department is unable to reach a voluntary resolution of a complaint filed under Section 42-12-70, the department may bring an action in a court of competent jurisdiction to recover the equitable and monetary relief described in Section 41-12-70.

(D)    Any sums recovered by the department pursuant to subsection (B) must be paid directly to each employee affected by the employer's unlawful acts.

Section 41-12-90.    An action may be brought under this chapter no later than two years after the date of the last event constituting the alleged violation for which the action is brought.

Section 41-12-100.    The department shall promulgate regulations necessary to carry out this chapter no later than November 1, 2003."

SECTION    2.    This act takes effect July 1, 2003.

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