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HB 296: "An Act relating to the State Commission for Human Rights authority and procedures; relating to and prohibiting wage discrimination based on the sex of an employee; and providing for an effective date."

00                             HOUSE BILL NO. 296                                                                          
01 "An Act relating to the State Commission for Human Rights authority and procedures;                                     
02 relating to and prohibiting wage discrimination based on the sex of an employee; and                                    
03 providing for an effective date."                                                                                       
04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
05    * Section 1. AS 18.80.100 is amended to read:                                                                      
06            Sec. 18.80.100. Complaint; withdrawal. (a) Except as provided in (c) of                                
07       this section, a [A] person who is aggrieved by a discriminatory practice prohibited by                        
08       this chapter may sign and file with the commission a written, verified complaint                                  
09       stating the name and address of the person alleged to have engaged in the                                         
10       discriminatory practice, and the particulars of the discrimination. A complainant may                             
11       withdraw the complaint at any time before the service of an accusation under                                      
12       AS 18.80.120. A withdrawal must be signed by the complainant and be in writing. A                                 
13       withdrawal does not limit the discretion of the executive director provided in (b) of                             
14       this section.                                                                                                     
01            (b)  Except as provided in (c) of this section, the [THE] executive director                             
02       may file a complaint in the manner provided in (a) of this section when a                                         
03       discriminatory practice comes to the attention of the executive director.                                         
04    * Sec. 2. AS 18.80.100 is amended by adding a new subsection to read:                                              
05            (c)  The executive director or the director's designee may not file a complaint                              
06       under this section alleging wage discrimination prohibited by AS 23.10.700.                                       
07    * Sec. 3. AS 18.80.145(a) is amended to read:                                                                      
08            (a)  When an action alleging a violation of this chapter is brought under                                
09       AS 22.10.020(i), the plaintiff shall serve a copy of the complaint on the commission.                             
10       Upon timely application, the commission may intervene as a party to the action as a                               
11       matter of right. If the commission certifies in writing to the court that it is presently                         
12       investigating or actively dealing with the act, practice, or policy of the defendant                              
13       giving rise to the cause of action, the court shall, at the request of the commission,                            
14       defer proceedings for a period of not more than 45 days or an [SUCH] extended                                 
15       period as the court may allow; except that the court may enter an order or injunction if                          
16       necessary to prevent irreparable injury to the plaintiff.                                                         
17    * Sec. 4. AS 22.10.020(i) is amended to read:                                                                      
18            (i)  The superior court is the court of original jurisdiction over all causes of                             
19       action arising under the provisions of AS 18.80 or AS 23.10.700 - 23.10.790. A                                
20       person who is injured or aggrieved by an act, practice, or policy that [WHICH] is                             
21       prohibited under AS 18.80 or AS 23.10.700 - 23.10.790 may apply to the superior                               
22       court for relief. The person aggrieved or injured may maintain an action on behalf of                             
23       that person or on behalf of a class consisting of all persons who are aggrieved or                                
24       injured by the act, practice, or policy giving rise to the action. In an action brought                           
25       under this subsection, the court may grant relief as to any act, practice, or policy of the                       
26       defendant that [WHICH] is prohibited by AS 18.80 or AS 23.10.700 - 23.10.790,                             
27       regardless of whether each act, practice, or policy, with respect to which relief is                              
28       granted, directly affects the plaintiff, so long as a class or members of a class of which                        
29       the plaintiff is a member are or may be aggrieved or injured by the act, practice, or                             
30       policy. The court may enjoin any act, practice, or policy that [WHICH] is illegal                             
31       under AS 18.80 or AS 23.10.700 - 23.10.790 and may order any other relief, including                          
01       the payment of money, that is appropriate.                                                                        
02    * Sec. 5. AS 23.10 is amended by adding new sections to read:                                                      
03               Article 9. Equal Pay Regardless of Sex of Employee.                                                     
04            Sec. 23.10.700. Equal pay regardless of an employee's sex. (a) An employer                                 
05       may not pay an employee of one sex wages that are less than the wages the employer                                
06       pays an employee who is of the opposite sex for work that is substantially similar                                
07       when viewed as a composite of skill, effort, and responsibility, and performed under                              
08       similar working conditions, unless the employer demonstrates that the wage                                        
09       differential is primarily based on the employer's reliance on a                                                   
10                 (1)  relevant disparity in the employees' education, training, or                                       
11       experience;                                                                                                       
12                 (2)  seniority system;                                                                                  
13                 (3)  merit system;                                                                                      
14                 (4)  system that measures earnings by quantity;                                                         
15                 (5)  system that measures earnings by quality of production; or                                         
16                 (6)  system that incorporates a geographic wage differential.                                           
17            (b)  An employer may not unreasonably rely on a disparity or system under                                    
18       (a)(1) - (6) of this section.                                                                                     
19            Sec. 23.10.710. Remedies. (a) An employer is liable to each employee for                                   
20       unpaid wages withheld in violation of AS 23.10.700 in the amount of the difference                                
21       between the wages the employee was paid and the wages the employee of the opposite                                
22       sex was paid and, unless waived under (d) of this section, liquidated damages equal to                            
23       treble the amount of unpaid wages.                                                                                
24            (b)  An employee may bring an action in the superior court under                                             
25       AS 22.10.020(i) to recover wages and damages under (a) of this section, or an                                     
26       employee may individually consent in writing to representation by the commissioner.                               
27       The employee or the commissioner shall file the consent in the court in which the                                 
28       action is brought. At the written request of an employee who alleges a violation of                               
29       AS 23.10.700, the commissioner may take an assignment in trust for the employee of                                
30       the full amount to which the employee is entitled under that section and may bring a                              
31       legal action to collect damages under (a) of this section.                                                        
01            (c)  The commissioner may supervise the payment of damages owed to an                                        
02       employee under this section. Payment in full under an agreement by an employee to                                 
03       settle a claim under this section for unpaid wages or liquidated damages constitutes a                            
04       waiver of any right as to a claim the employee may have under (a) of this section to                              
05       unpaid wages or liquidated damages.                                                                               
06            (d)  In a settlement for unpaid wages under this section that is not supervised                              
07       by the department or the court, an employee is entitled to liquidated damages under (a)                           
08       of this section unless the employee and the employer enter into a written settlement                              
09       agreement in which the employee expressly waives the right to receive liquidated                                  
10       damages. A private written settlement agreement under this subsection is not valid                                
11       unless submitted to the commissioner for review. The commissioner shall review the                                
12       agreement and approve it if it is fair to the parties. The commissioner shall approve or                          
13       deny an agreement within 30 days after receipt. A waiver of liquidated damages may                                
14       not be a condition of employment.                                                                                 
15            Sec. 23.10.715. Double recovery of damages not permitted. An employee                                      
16       who recovers unpaid wages from an employer as the result of a complaint or                                        
17       agreement under AS 23.10.700 and recovers unpaid wages from the employer under                                    
18       29 U.S.C. 206(d) as a result of the same conduct by the employer shall return to the                              
19       employer the unpaid wages recovered under AS 23.10.710 or the unpaid wages                                        
20       recovered under federal law, whichever is less.                                                                   
21            Sec. 23.10.720. Disclosure of wages; discussion of wages. An employer may                                
22       not prohibit an employee from disclosing the employee's wages, discussing the wages                               
23       of others, inquiring about another employee's wages, or helping or encouraging                                    
24       another employee to exercise a right under this section. Nothing in this subsection                               
25       creates an obligation for a person to disclose information about their own wages or the                           
26       wages of another.                                                                                                 
27            Sec. 23.10.725. Employer shall maintain records. An employer shall make a                                  
28       record of the wage rates and of wages paid to each employee from the date of the                                  
29       employee's hire and maintain that record for at least three years after the employee's                            
30       last day of employment.                                                                                           
31            Sec. 23.10.730. Posting summary required. An employer subject to                                           
01       AS 23.10.700 - 23.10.790 shall keep a summary or abstract of AS 23.10.700 -                                       
02       23.10.790, approved by the commissioner, posted in a conspicuous location at the                                  
03       place where an employee is employed. Upon request by an employer, the                                             
04       commissioner shall provide a copy of the summary without charge.                                                  
05            Sec. 23.10.735. Retaliation prohibited. An employer may not discharge,                                     
06       discipline, threaten, discriminate against, or penalize an employee for exercising a                              
07       right under AS 23.10.700 - 23.10.790 or participating in or benefitting from a                                    
08       complaint, claim, trial, agreement, or investigation resulting from an alleged violation                          
09       of AS 23.10.700 - 23.10.790.                                                                                      
10            Sec. 23.10.740. Damages for retaliation. An employee who has been                                          
11       discharged, disciplined, threatened, discriminated against, or penalized in violation of                          
12       AS 23.10.735 may file a civil claim against the employer for damages, including                                   
13       reinstatement and lost wages.                                                                                     
14            Sec. 23.10.745. Accepting lesser wages not a bar to action. An employee's                                  
15       agreement to work for wages less than the wages required by AS 23.10.700 does not                                 
16       bar an action under AS 23.10.700 - 23.10.790.                                                                     
17            Sec. 23.10.750. Statute of limitations. An action under AS 23.10.700 -                                     
18       23.10.790 may be filed not later than three years after the injury to the aggrieved                               
19       employee last occurs.                                                                                             
20            Sec. 23.10.755. Regulations. The commissioner shall adopt regulations under                                
21       AS 44.62 (Administrative Procedure Act) to implement and interpret AS 23.10.700 -                                 
22       23.10.790.                                                                                                        
23            Sec. 23.10.790. Definitions. In this section,                                                              
24                 (1)  "employee" means a person in the service of an employer;                                           
25                 (2)  "employer" means the state, the University of Alaska, the Alaska                                   
26       Railroad Corporation, a political subdivision of the state, and a person who employs                              
27       one or more other persons.                                                                                        
28    * Sec. 6. AS 18.80.220(a)(5) is repealed.                                                                          
29    * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to                          
30 read:                                                                                                                   
31       APPLICABILITY. AS 18.80.100, as amended by sec. 1 of this Act, AS 18.80.100(c),                                   
01 enacted by sec. 2 of this Act, AS 22.10.020(i), as amended by sec. 4 of this Act, AS 23.10.700                          
02 - 23.10.790, enacted by sec. 5 of this Act, and the repeal of AS 18.20.220(a)(5) in sec. 6 of                           
03 this Act apply to wages for services performed on or after the effective date of this Act.                              
04    * Sec. 8. This Act takes effect July 1, 2016.