Existing law establishes the Department of Industrial Relations in the Labor and Workforce Development Agency to foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment. Existing law establishes within the department the Division of Labor Standards Enforcement, which is vested with the general duty of enforcing various labor laws. Existing law creates the Labor Enforcement and Compliance Fund, moneys in which, upon appropriation by the Legislature, are available to support the Division of Labor Standards Enforcement, including, among other things, enforcement of laws prohibiting wage differentials.

This bill would require, on or before September 30, 2019, and on or before September 30 each year thereafter, a private employer that has 100 or more employees and who is required to file an annual Employer Information Report under federal law, to submit a pay data report to the Department of Industrial Relations Fair Employment and Housing that contains specified wage information. This bill would require the department to make the reports available to the Department of Fair Employment and Housing upon request. This The bill would impose specified civil penalties on any employer who does not comply with the reporting requirement, and would require any penalties collected to be deposited into the Labor Enforcement and Compliance Fund, to be allocated upon appropriation by the Legislature to the Division of Labor Standards Enforcement to enforce wage differential laws. This The bill would authorize the Labor Commissioner to issue a citation to an employer for a violation of these provisions. This the Department of Fair Employment and Housing, if the department does not receive the required report from an employer, to seek an order requiring the employer to comply, as specified. The bill would require the department to maintain the pay data reports for a minimum of 10 years and make it unlawful for any officer or employee of the department or the Department of Fair Employment and Housing to make public in any manner whatever any individually identifiable information obtained from this report, as specified.

The California Public Records Act requires a public agency to make public records available for inspection, unless an exemption from disclosure applies.

This bill would provide that any information disclosed to the department pursuant to this bill be considered confidential information and not subject to disclosure pursuant to the California Public Records Act, except as specified.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law establishes the Department of Industrial Relations in the Labor and Workforce Development Agency to foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment. Existing law establishes within the department the Division of Labor Standards Enforcement, which is vested with the general duty of enforcing various labor laws. Existing law creates the Labor Enforcement and Compliance Fund, moneys in which, upon appropriation by the Legislature, are available to support the Division of Labor Standards Enforcement, including, among other things, enforcement of laws prohibiting wage differentials.

This bill would require, on or before September 30, 2019, and on or before September 30 each year thereafter, a private employer that has 100 or more employees to submit a pay data report to the Department of Industrial Relations, Relations that contains specified information. This bill would require the department to make the reports available to the Department of Fair Employment and Housing upon request. This bill would impose a civil penalty of $500 specified civil penalties on any employer who does not comply with the reporting requirement, and would require any penalties collected to be deposited into the Labor Enforcement and Compliance Fund, to be allocated upon appropriation by the Legislature to the Division of Labor Standards Enforcement to enforce wage differential laws. This bill would authorize the Labor Commissioner to issue a citation to an employer for a violation of these provisions. This bill would require the department to maintain the pay data reports for a minimum of 10 years and make it unlawful for any officer or employee of the department or the Department of Fair Employment and Housing to make public in any manner whatever any individually identifiable information obtained from this report, as specified.

The California Public Records Act requires a public agency to make public records available for inspection, unless an exemption from disclosure applies.

This bill would provide that any information disclosed to the department pursuant to this bill be considered confidential information and not subject to disclosure pursuant to the California Public Records Act, except as specified.

Existing law establishes the Department of Industrial Relations in the Labor and Workforce Development Agency to foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment. Existing law establishes within the department the Division of Labor Standards Enforcement, which is vested with the general duty of enforcing various labor laws. Existing law creates the Labor Enforcement and Compliance Fund, moneys in which, upon appropriation by the Legislature, are available to support the Division of Labor Standards Enforcement, including, among other things, enforcement of laws prohibiting wage differentials.

This bill would require, on or before September 30, 2019, and on or before September 30 each year thereafter, an a private employer that is incorporated under the laws of this state that has 100 or more employees to submit a pay data report to the Department of Industrial Relation, Relations, that contains specified information. This bill would require the department to make the reports available to the Secretary of State, the Department of Fair Employment and Housing, and the Commission on the Status of Women and Girls Housing upon request. This bill would impose a civil penalty of $500 on any employer who does not comply with the reporting requirement, and would require any penalties collected to be deposited into the Labor Enforcement and Compliance Fund, to be allocated upon appropriation by the Legislature to the Division of Labor Standards Enforcement to enforce wage differential laws. This bill would make it unlawful for any officer or employee of the department or the Department of Fair Employment and Housing to make public in any manner whatever any individually identifiable information obtained from this report, as specified.

Existing law establishes the Department of Industrial Relations in the Labor and Workforce Development Agency to foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment. Existing law establishes within the department the Division of Labor Standards Enforcement, which is vested with the general duty of enforcing various labor laws. Existing law creates the Labor Enforcement and Compliance Fund, moneys in which, upon appropriation by the Legislature, are available to support the Division of Labor Standards Enforcement, including, among other things, enforcement of laws prohibiting wage differentials.

This bill would require, on or before September 30, 2019, and on or before September 30 each year thereafter, an employer that is incorporated under the laws of this state that has 100 or more employees to submit a pay data report to the Department of Industrial Relation, that contains specified information. This bill would require the department to make the reports available to the Secretary of State, the Department of Fair Employment and Housing, and the Commission on the Status of Women and Girls upon request. This bill would impose a civil penalty of $500 on any employer who does not comply with the reporting requirement, and would require any penalties collected to be deposited into the Labor Enforcement and Compliance Fund, to be allocated upon appropriation by the Legislature to the Division of Labor Standards Enforcement to enforce wage differential laws.

Date of Hearing: August 15, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1284

Author:(Jackson) – As Amended Ver:August 8, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires certain employers to submit a report each year to the Department of Fair Employment and Housing (DFEH) with pay data for specified job categories broken down by race, ethnicity, and sex. Specifically, this bill:

1. Requires, on or before September 30, 2019, and on or before September 30 each year thereafter, a private employer with at least 100 employees that is required to submit a federal Equal Employment Opportunity Commission (EEOC) Employer Information Report to submit a pay data report to DFEH. This report must include the number of employees, by demographic characteristic, in specified job categories and the number of employees by demographic characteristic in each of the pay bands used by the Occupational Employment Statistics (OES) survey.
2. Requires employers with multiple establishments to submit a report for each establishment and a consolidated report and allows an employer to make clarifying remarks regarding any of the information provided.
3. Authorizes DFEH to seek an order requiring the employer to comply with these reporting requirements and to recover the costs associated with seeking that order.
4. Prohibits any DFEH employee or officer from making public any identifiable information obtained prior to the institution of an investigation or enforcement proceeding under California’s Equal Pay Act or the anti-discrimination provision of the Fair Employment and Housing Act.
5. Permits the DFEH to develop and publicize aggregate reports based on the data obtained provided the aggregate reports are calculated to prevent the association of any data with an individual person or business.

FISCAL EFFECT:

Significant one-time General Fund costs, likely in excess of $500,000, for DFEH to develop capabilities to receive and store collected data from thousands of employers, and ongoing costs in excess of $150,000 GF to maintain the database.

COMMENTS:

1. Background. The EEOC, for decades, has required employer submission of workforce demographic information to help it administer and enforce anti-discrimination laws in employment. In 2016, the Obama Administration announced its intent to revise the reporting rule to also require the submission of employee pay data by race and gender beginning in 2018. In August 2017, the federal Office of Management and Budget halted implementation of the proposed rule and initiated an extensive review process of all proposed revisions. As a result, the EEOC can only collect demographic information and lacks access to any pay data based on protected characteristics.
2. Purpose. According to the author, SB 1284 will ensure DFEH can more efficiently identify patterns of wage disparities and will allow for targeted enforcement of equal pay laws, when appropriate. The author also hopes that this bill will lead to more employers analyzing their own pay practices.
3. Recent amendments. The author recently amended SB 1284 to:
   1. Make DFEH the administrating agency instead of DIR. The prior version of SB 1284 put DIR in charge of collecting the data and enforcing the bill’s provisions. Under the current version of the bill, DFEH oversees the data collection and enforces the bill’s requirements.
   2. Change enforcement provisions. Under prior versions of this bill, an employer who does not comply with the bill’s provisions was subject to a $500 civil penalty for the first violation and a $5,000 civil penalty for each subsequent violations. Under the current version, DFEH may seek an order requiring an employer to comply with the bill’s requirements and may recover costs associated with seeking that order.
4. The OES database. SB 1284’s data reporting requirement relies heavily on the Bureau of Labor Statistics’ OES database. The OES program produces employment and wage estimates annually for over 800 occupations at the state and national level. The survey is the only comprehensive source of regularly collected wage rate information across occupations, and each year’s dataset uses data collected at different points in time. For example, the May 2017 OES release reflects data collected in November 14, May 2015, November 2015, May 2016, November 2016, and May 2017.
5. What is the value of this data? Since the OES survey does not gather demographic information, SB 1284 may provide important information about the clustering of employees with different demographic characteristics at different points in a payscale in a given occupation. For example, it could be that this data shows a clustering of women employees just below the median wage of a mid-level management position and men just above the median, or it could show a large number of men in certain occupations that typically pay more.
6. Recent legislation. AB 1209 (Gonzalez Fletcher), of the 2017-18 Legislative Session, would have required employers with 500 or more employees in California to provide the Secretary of State with specific information regarding gender wage differentials for exempt employees and board members every two years as part of their corporate filings. AB 1209 was vetoed by Governor Brown.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: June 26, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 1284

Author:(Jackson) – As Amended Ver:May 25, 2018

SENATE VOTE: 24-13

SUBJECT: Employers: annual report: pay data

KEY ISSUE: should private employers with 100 or more employees be required to submit to the department of industrial reLations employee pay data, broken down by race, ethnicity, and sex for each job category?

SYNOPSIS

Despite important gains that women have made in the workplace, wage inequality persists, with some studies suggesting that the "gender gap" costs women in California nearly $79 billion in wages each year. To help employers and the state better understand the scope of the problem, this bill would usefully require private employers with 100 or more employees to submit a pay data report to the Department of Industrial Relations (DIR), with compensation for each job category broken down by race, ethnicity, and sex. DIR could make these reports available to the Department of Fair Employment and Housing (DFEH) upon request. The purpose of this measure, according to the author and sponsors, is to obtain information that will allow DIR and DFEH "to more efficiently identify patterns of wage disparities and allow for targeted enforcement of equal pay laws, when appropriate." The author and sponsors believe that this will not only provide state agencies with an understanding of larger patterns, but that it will also encourage businesses to examine their practices and, if necessary, make changes voluntarily. The bill also includes provisions designed to protect the privacy of both individual employees and employers by limiting the disclosure of information in the pay data reports and exempting the reports from the Public Records Act. Contrary to the claims of the opposition, it does not appear that the purpose of the bill is to subject employers to "public shaming" or to create a false impression that wage disparity alone is evidence of unlawful wage discrimination. The bill does not in any way change existing law as to an employer's liability for wage discrimination or grant any additional rights to aggrieved employees. Rather, the bill is merely an attempt to gather data that will provide both state agencies and employers with a better understanding of the scope of the problem, presumably upon the quite sensible assumption that understanding the scope of a problem is typically an important first step in resolving, or at least mitigating, a problem. This bill is supported by several labor unions and women's organizations. It is opposed by a long list of business and employer organizations.

SUMMARY: Requires private employers with 100 or more employees to submit an annual pay data report, with job categories broken down by race, ethnicity, and sex, to the Department of Industrial Relations (DIR). Specifically, this bill:

1. Requires on or before September 30, 2019, and each year thereafter, a private employer with 100 or more employees to submit a pay data report to the DIR and specifies that the DIR shall make the reports available to the Department of Fair Employment and Housing (DFEH) upon request. Requires DIR to maintain pay data reports for not less than 10 years. Requires pay data reports to include the following information:
   1. The number of employees by race, ethnicity, and sex in each of several specified job categories, from executive level officials and managers to laborers and service workers.
   2. The number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics and the Occupation Employment Statistics Survey. Requires the employer to use a specified Internal Revenue Service form for this purpose.
2. Specifies that for all part-time and partial-year employment, the employer shall include the total number of hours worked by each employee counted in each pay band over the last 12 months. Requires employers with multiple establishments to submit a report for each establishment and a consolidated report that includes all employees.
3. Permits an employer who is required to file a specified report with the United States Equal Employment Opportunity Commission or other federal agency to use that report to satisfy the requirements of this, so long as the federal report requires substantially the same information as is required by this bill.
4. Subjects an employer who does not comply with the requirements of this bill to a civil penalty of $500 for the initial violation and $5000 for a subsequent violation. If the Labor Commissioner determines that a violation has occurred, the Commissioner may issue a citation as specified, with penalties deposited as specified.
5. Makes it unlawful for DIR or DFEH to make public, in any manner whatever, any individually identifiable information obtained pursuant to this bill prior to the institution of a proceeding under specified provisions of the Labor and Government Code. However, DIR and DFEH may develop and publicize aggregate reports based on data obtained pursuant to this bill, provided that the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person.
6. Declares that information disclosed to DIR pursuant to this bill is confidential and not subject to disclosure under the Public Records Act. As required by the state constitution, justifies this limitation on the public's right of access to public records by citing the privacy interests of individuals who are subjects of the pay data.

EXISTING LAW:

1. Prohibits an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. (Labor Code Section 1197.5 (a).)
2. Prohibits an employer from paying employees a wage rate less than the rate paid to employees of a different race or ethnicity for substantially similar work. (Labor Code Section 1197.5 (b).)
3. Provides that an employer is not liable for wage discrimination based on sex if the employer demonstrates that the payment is made pursuant to:
   1. A seniority system;
   2. A merit system;
   3. A system which measures earnings by quantity or quality of production;
   4. A bona fide factor other than sex, such as education, training, or experience. (Labor Code Section 1197.5.)
4. Specifies that an employer who violates the above provisions is liable to the affected employee in the amount of the wages, and interest thereon, and an additional equal amount as liquidated damages, administered and enforced by the Division of Labor Standards Enforcement (DLSE), which may supervise the payment of wages owed. (Labor Code Section 1197.5 (c) and (d).)
5. Authorizes an employee to file a complaint with the DLSE for wages owed, and authorizes the DIR or the DLSE to commence and prosecute a civil action on behalf of the employee and on behalf of a similarly affected group of employees to recover unpaid wages, liquidated damages, and costs of the suit. (Labor Code Section1197.5 (g).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Although the wage gap between men and women has narrowed over time, it is still quite significant. According to most studies, women still only make about 84 cents for every dollar that a man makes. When one combines gender disparities with racial and ethnic disparities, the wage gaps are even greater: African-American women make 63 cents and Latinas just 43 cents for every dollar made by a non-Hispanic white male. At least one study claims that this disparity costs women in California nearly $79 billion in wages each year. (National Partnership for Women & Families, "Fact Sheet: California Women and the Wage Gap," April 2017.) To be sure, because race and gender correlate with other variables, such as levels of education and work experience, these differences are not entirely explained by intentional racial and gender discrimination. Nonetheless, whether caused by deliberate discrimination or a matrix of historical, cultural, and institutional factors, the inequities are impossible to deny. Whatever the causes of wage inequities might be, it would seem that a necessary first step in addressing the inequity must start with an understanding of the scope of the problem. This measure will facilitate that necessary first step.

Specifically, SB 1284 will require employers with 100 or more employees to submit pay data for several job categories broken down by race, gender, and ethnicity, to DIR by September 30, 2019, and annually thereafter. The DIR would make the data reports available upon request to the (DFEH, the primary state agency charged with enforcing laws against unlawful discrimination in the workplace. According to the author, SB 1284 "will allow DIR and DFEH to more efficiently identify patterns of wage disparities and allow for targeted enforcement of equal pay laws, when appropriate." The author believes that this measure will also "encourage employers to analyze their own pay practices to ensure they are fair and lawful and allow for self-correction."

Federal and State Equal Pay Laws and Data Collection: When first enacted in 1949, California's Equal Pay Act required employers to pay men and women equal wages if they performed "equal work" in the same establishment. Although the law is gender-neutral on its face, it was intended to correct a long and well-documented history of wage discrimination against women. In 2015, the author of the present bill successfully carried SB 358 (Chap. 546, Stat. 2015), which significantly strengthened the Equal Pay Act by enhancing an employee's ability to discover wage disparities and seek appropriate remedies. One important change made by SB 358 addressed the then-existing law's admirable but simplistic demand of "equal pay for equal work." The problem with this formulation was that in the modern workplace the work performed by two employees may never be completely "equal." Thus, an employer confronting a gender discrimination challenge under the Equal Pay Act could have argued that the jobs performed by persons of the opposite sex were not "equal" because of some minor variation, even if that variation could not reasonably justify different pay. SB 358 addressed that problem by prohibiting employers from paying men and women different wages for "substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar work conditions." In short, a female employee must receive equal pay for performing a job that is "substantially similar" to one performed by a male counterpart, even though the jobs may not be identical.

While California's Equal Pay Act, as strengthened by SB 358, provides a mechanism for an individual employee to obtain an equitable wage, the author and sponsor believe that there is still a need to identify broader, collective patterns of wage discrimination. Largely in recognition of a need to detect and address these larger patterns, in 2015 the Obama Administration revised the federal Employer Information Report (EEO-1) to include pay data on gender, race, and ethnicity. Federal law had long required that EEO-1 reports be submitted to the federal Equal Employment Opportunity Committee (EEOC). The EEOC, after taking public comments, holding public hearings, and conducting a pilot project decided to adopt the Obama proposals and revised the EEO-1 form so as to provide more meaningful data on wage disparities according to race, gender, and ethnicity. The forms were scheduled to come into use by 2018. It may come as no surprise, however, that in 2017 the Trump administration reversed the Obama order and the corresponding EEOC action. According to the author and sponsors, the present bill is modeled after the Obama order and will ensure that such data is collected in California, notwithstanding the federal reversal.

What the Bill Does and Does Not Do: In light of the arguments raised by opponents, it is important to stress what the bill does and does not do. While this bill provides for the collection of pay data and makes it available to state agencies charged with enforcing state laws, it does not in any way alter the standard of what constitutes wage discrimination, nor would it make an employer liable for wage discrimination based on the data reports submitted to the DIR. (Although an employer could be cited for failing to provide the reports.) Opponents argue that disparity in wages along lines of race, ethnicity, or gender is not evidence of unlawful discrimination, because there are many objective factors that could explain wage gaps that have nothing to do with intentional discrimination on the part of the employer. This is certainly true, but nothing in this bill presumes otherwise. Under existing law an employer cannot be held liable merely because wage data shows racial or gender disparity within the same job category, and this bill would do nothing to change that. The Equal Pay Act expressly recognizes that there are many factors that justify a wage difference, such as a seniority system, a merit system, or some other "bona fide factor" such as level of education, training, or experience. This bill does not change the standard for finding unlawful wage discrimination and does not assume that wage disparities alone are evidence of unlawful discrimination. Opponents seem to assume, however, that when people see wage disparities they will jump to the conclusion that it must be the result of unlawful discrimination. Some people may indeed draw such faulty conclusions, but it will not be the fault of this bill. This bill seeks to obtain necessary data in order to ascertain larger patterns and make more meaningful assessments about the scope of the problem. Opposition arguments notwithstanding, nothing in the bill even implies that wage disparity alone is evidence of unlawful discrimination on the part of any particular employer.

Moreover, as the sponsors of the legislation have pointed out, the data may reveal the extent to which wage disparities are not the result of intentional discrimination on the part of the employer so much as they are the result of structural problems such as "occupational segregation," or the way in which implicit bias and cultural and historical factors have channeled women and persons of color into lower paid job categories. This is why breaking down compensation data for each job category on the basis of race, ethnicity, or gender, as the reports required by this bill would do, is so important. For example, persons within the same job category may be paid an equal amount of money regardless of race or gender. However, this seeming equality may obscure the discriminatory effects of occupational segregation if women and persons of color are disproportionately represented in the lower-wage job categories. As the author and sponsor have repeatedly written and testified, the purpose of gathering data is not to engage in the "public shaming" of businesses, as the opposition insists, but, to the contrary, to get a better sense of the complex factors that contribute to inequality.

Privacy of Data and Alleged "Public Shaming" of Businesses: Opponents of this bill also claim that this bill could threaten the financial privacy of employees by exposing their wages to public view. However, the bill includes a number of express provisions to protect the privacy of both individuals and businesses. As noted above, this bill requires private employers to submit pay data reports to DIR which, in turn, may make the reports available to DFEH upon request. To respect the privacy of individual employees and businesses, the data reports would be exempted from disclosure under the Public Records Act. In addition, the bill expressly prohibits both DIR and DFEH from making public, "in any manner whatever," any "individually identifiable information." DIR and DFEH may develop and publicize aggregate reports based on the data, but only if the aggregate reports are "reasonably calculated to prevent the association of any data with any individual business or person." Thus, it seems unlikely, contrary to the claims of the opposition, that the bill would expose an employee's private financial information to public view or subject an identifiable business to "public shaming" when the bill expressly requires that any aggregate report be "reasonably calculated" to prevent association of the data with any "individual business."

It is true, as the opposition emphasizes, that the requirement that DIR and DFEH maintain the confidentiality of individually identifiable information only applies "prior to the institution of any proceeding under [Labor Code] Section 1197.5 or Section 12940 of the Government Code involving such information." The sections of existing law referenced in this provision of the bill allow an employee to bring an action alleging discrimination by first filing a complaint with the Division of Labor Enforcement Standards (DLSE), in the case of Labor Code Section 1197.5, or with the DFEH, in the case of Government Code Section 12940. These sections also allow enforcement agencies to bring an action on behalf of an aggrieved employee. Once such complaints are made and a proceeding has been instituted – whether by filing a complaint with an agency or, eventually, either the agency or employee filing an action in court – the complaints and the facts underlying them necessarily become public. While the pay data reports may not be sufficient to establish liability, it is certainly possible that specific pay data reports could be relevant in a DFEH investigation or enforcement action. The language in this provision of the bill reflects this possibility, and it is drawn directly from a federal statute that prohibits EEOC from disclosing information from EEO-1 reports "prior to the institution of any proceeding" by the EEOC.

However, in fairness to the opposition, the existing language does not appear to limit the use of the pay data reports at all once a proceeding has been instituted. That is, since the prohibition on making the reports public only applies "prior to" a proceeding, once a proceeding is initiated the current language would appear to permit DIR and DFEH to disclose the reports in any manner whatsoever and to whomever they choose. Therefore, if the bill passes out of this Committee, the author may wish to consider whether it should be amended to clarify that information in the submitted reports should only be made public to the extent necessary to carry out an enforcement proceeding.

Arguments in Support: This bill is co-sponsored by the California Employment Lawyers Association, Equal Rights Advocates, and the American Association of University Women. The sponsors argue that despite significant progress made in California in recent years, "the gender pay gap persists, resulting in an estimated $78.6 billion in lost wages for women each year in California." The sponsors contend that one "obstacle to effective enforcement is that pay discrimination is often 'hidden from sight' and can be a result of unconscious biases or historical inequities," noting in particular that "unconscious cultural biases" are especially problematic in the science and technology industries.

The author, sponsors, and several supporters note the effort of the Obama administration to better detect and address pay discrimination by revising the EEO-1 to include pay data by gender, race, and ethnicity. The sponsors note that the proposed revisions of EEO-1 reports were adopted by the EEOC and approved by the Office of Management and Budget "after a rigorous and transparent process that spanned years and included a pilot study, a public hearing and two public comment periods" during which the EEOC "heard from employer and employee advocates, researchers, academics, and members of the public, and ultimately determined that the final rule's burden to employers was manageable and the overall benefit substantial." Yet, despite the reasoned and considered judgment that went into developing the Obama revisions, "the Trump Administration put a halt the implementation of this new rule, dealing a significant blow to the fight for equal pay."

The author and sponsors believe that "SB 1284 will ensure that, despite setbacks at the federal level, this important pay data will continue to be complied and aggregated in California." The sponsors add that this information "will not be publicly available at the individual level, which should assuage fears of employers that this information will create additional liability for them." In sum, the sponsors believe that this bill will "allow for the designated state agency to more efficiently identify patterns of wage disparities and/or occupational segregation and allow for targeted enforcement of discrimination and equal pay laws, when appropriate," while at the same time encouraging "employers to analyze their own pay and other employment practices to ensure they are fair and lawful and allow for self-correction. Simply compiling the data will prompt some businesses to make necessary changes."

Arguments in Opposition: The California Chamber of Commerce, writing on behalf of several business, trade, and employer organizations, opposes this bill because "it will create a false impression of wage discrimination or unequal pay where none exists and, therefore, subject employers to unfair public criticism, enforcement actions, and significant litigation costs to defend against likely meritless claims." Opponents raise a number of specific objections to this bill, but most of these seem to be variations on the theme that while pay data may reveal disparities in pay along the lines of race, ethnicity, and gender, a disparity alone is not evidence of discrimination because of the variety of non-discriminatory factors that might explain wage disparity. In other words, opponents fear that publicizing the results of the pay data without adequate context will create a false impression that disparities in pay must be the result of discrimination. In addition to this general concern, opponents make several specific objections to the bill.

First, opponents note that this bill is substantially similar to last year's AB 1209, which was vetoed by Governor Brown because its "ambiguous wording" could be, in the Governor's words, "exploited to encourage more litigation than pay equity." Governor Brown's veto message also noted that the existing Pay Equity Task Force had been assigned to the task of evaluating the Equal Pay Act and that it was premature to introduce legislation before the Task Force issued its final report. Opponents contend that these same arguments apply to SB 1284.

Second, opponents claim that this bill will expose employers to "public shaming for wage disparities that are not unlawful." Opponents note that there are several factors that may explain wage disparities between employees who perform substantially similar work, such as different career experience, seniority and length of service, objective merit-based systems of compensation, shift differentials, or geographical differences that impact the cost of living and job market. Closely related to this point, opponents point out that the author's own SB 358 (Chap. 546, Stats. 2015), which amended California's Equal Pay Act, prohibited an employer from paying any of its employees at wage rates less than those paid to employees of the opposite sex for "substantially similar work." Yet, this bill compares differences within the same "job category," even though two jobs with the same title may not be substantially similar in terms of required skill, degree of difficulty, or level of responsibility. In other words, similar titles or job categories are not always a reliable indicator of similar work that is deserving of the same pay.

Finally, opponents raise a number of additional concerns. For example, while the bill attempts to protect employee privacy by exempting pay data reports from the Public Records Act and prohibits DIR and DFEH from making any personally identifiable information public, this restriction only applies "prior to the institution of any proceeding" brought under the California Equal Pay Act. In addition, opponents contend that even the aggregate data publicized by DFEH could unwittingly reveal an individual's pay if there were only one person in a job category for that employer. [The merits of these objections are discussed above.]

Several organizations representing construction employers, who employ union labor, oppose AB 1284 for a different reason. Specifically, the construction employers contend that they are bound by collective bargaining agreements to hire employees from a local union hiring hall and pay them an already established pay rate for a particular type of work in a particular location. The construction employer, therefore, has no say as to the race or gender of the employees assigned or the rate of pay that they will receive. For this reason, the construction employers believe that any construction employer subject to a collective bargaining agreement should be exempted from the bill.

REGISTERED SUPPORT / OPPOSITION:

Support

American Association of University Women (co-sponsor)

California Employment Lawyers Association (co-sponsor)

Equal Rights Advocates (co-sponsor)

ACLU

AFSCME

California Labor Federation

California Latinas for Reproductive Justice

California Voices for Progress

California Women's Law Center

Coalition of Labor Union Women-California Capital Chapter

Consumer Attorneys of California

Legal Aid at Work

National Council of Jewish Women, California

SEIU California

Tradeswomen, Inc.

Women's Foundation of California

Women Lawyers of Sacramento

YWCA San Francisco & Marin

Opposition

Agricultural Council of California

Air Conditioning Sheet Metal Association

Associated General Contractors

Brea Chamber of Commerce

California Ambulance Association

California Association for Health Services at Home

California Bankers Association

California Business Properties Association

California Chamber of Commerce

California Chapters of the National Electrical Contractors Association

California Employment Law Council

California Farm Bureau Federation

California Hotel and Lodging Association

California Land Title Association

California Landscape Contractors Association

California League of Food Producers

California Legislative Conference of Plumbing, Heating, and Piping Industry

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

California Sheet Metal and Air Conditioning Contractors, National Association

California Taxpayers Association

California Trucking Association

Cerritos Regional Chambers of Commerce

Citizens against Lawsuit Abuse

Construction Employers’ Association

Culver City Chamber of Commerce

Family Business Association of California

Fresno Chamber of Commerce

Gateway Chamber Alliance

Greater Bakersfield Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Greater Irvine Chamber of Commerce

Long Beach Area Chamber of Commerce

Murrieta Chamber of Commerce

National Association of Mutual Insurance Companies

National Federation of Independent Business

Northern California Allied Trades

Official Police Garages of Los Angeles

Orange County Business Council

Palm Desert Area Chamber of Commerce

Personal Insurance Federation of California

Rancho Cordova Chamber of Commerce

Redondo Beach Chamber of Commerce

Retail Industry Leaders Association

San Gabriel Valley Economic Partnership

Santa Ana Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Simi Valley Chamber of Commerce

South Bay Association of Chambers of Commerce

Southern California Contractors Association

Southwest California Legislative Council

Torrance Chamber of Commerce

United Contractors

Valley Industry and Commerce Association

Wall and Ceiling Alliance

Western Growers Association

Western Wall & Ceiling Contractors Association

Wildomar Chamber of Commerce

Wine Institute

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334

Date of Hearing: June 20, 2018

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Tony Thurmond, Chair

SBPCA Bill Id:SB 1284

Author:(Jackson) – As Amended Ver:May 25, 2018

SENATE VOTE: 24-13

SUBJECT: Employers: annual report: pay data

SUMMARY: Requires private employers with 100 or more employees to submit a report annually to the Department of Industrial Relations (DIR) with pay data for specified job categories broken down by race, ethnicity, and sex. Specifically, this bill:

1. Requires, on or before September 30, 2019, and on or before September 30 each year thereafter, a private employer with 100 or more employees to submit a pay data report to the DIR that, upon request, shall make the report available to the Department of Fair Employment and Housing (DFEH).
2. Requires that the pay data report be broken down by specified job categories and include the number of employees by race, ethnicity and sex with annual earnings separated in pay bands used by the United States Bureau of Labor Statistics.
3. Provides that, for purposes of establishing these numbers, an employer shall use an employee’s total earnings as shown on his or her W-2 for a 12-month period looking back from any pay period between July 1 and September 30 of each calendar year.
4. Requires that the hours worked by part-time and partial-year employees be included in these calculations.
5. Requires employers with multiple establishments to submit a report for each establishment and a consolidated report.
6. Permits an employer to make clarifying remarks regarding any of the information provided.
7. Provides, that in the event the federal Employer Information Report (EEO-1) is revised to include the same or substantially similar pay data, the employer may submit the EEO-1 report and be in compliance.
8. Imposes specified civil penalties on an employer who fails to comply with the reporting requirement and requires that any penalties collected be deposited into the Labor Enforcement and Compliance Fund.
9. Authorizes the Labor Commissioner (LC) to issue a citation for violation of these provisions.
10. Requires the DIR to maintain the pay data reports for a minimum of ten years.
11. Prohibits any officer or employee of the DIR or the DFEH from making public any identifiable information obtained prior to the institution of a proceeding under California’s Equal Pay Act or the anti-discrimination provision of the Fair Employment and Housing Act.
12. Exempts from coverage under the California Public Records Act and considers confidential, any information disclosed to the DIR under these provisions.
13. Permits the DFEH to develop and publicize aggregate reports based on the data obtained provided the aggregate reports are calculated to prevent the association of any data with an individual person or business.
14. Declares that public access to the pay data is limited so as to protect the privacy of individuals who are the subject of sensitive information as reported by employers.

EXISTING STATE LAW:

1. Establishes the DIR within the Labor and Workforce Development Agency to foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment.
2. Establishes the DFEH to, among other things, receive and investigate complaints of illegal employment discrimination.
3. Provides that it is an unlawful employment practice, for an employer, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discharge, or discriminate against the person in compensation or in terms, conditions, or privileges of employment.

EXISTING FEDERAL LAW:

1. Establishes the Equal Employment Opportunity Commission (EEOC) to enforce the anti-discrimination in employment provision, known as Title VII, of the Civil Rights Act of 1964.
2. Requires every employer with 100 or more employees that is covered by Title VII, to file annually with the EEOC, demographic information about its employees in the Standard Form 100, as revised (known as the EEO-1 Report).

FISCAL EFFECT: According to the Senate Appropriations Committee, the DIR would incur annual costs of up to $2 million to implement and enforce the provisions of the bill (special fund).

COMMENTS: Note: This bill is double referred to Assembly Judiciary Committee, upon passage from this Committee.

The EEOC, for decades, has required employer submission of workforce demographic information to it in order to assist the Commission achieve its purpose of administering and enforcing anti-discrimination laws in employment. In 2016, the Obama Administration announced its intent to revise the reporting rule to also require the submission of employee pay data by race and gender beginning in 2018. In August 2017, the federal Office of Management and Budget halted implementation of the proposed rule and initiated an extensive review process of all proposed revisions. As a result, the EEOC can only collect demographic information and lacks access to any pay data based on protected characteristics.

According the author, “SB 1284 will ensure that, despite setbacks at the federal level, this important pay data will continue to be compiled and aggregated in California.” The author further argues that collecting this pay data “will allow DIR and DFEH to more efficiently identify patterns of wage disparities and allow for targeted enforcement of equal pay laws, when appropriate. In addition, it will encourage employers to analyze their own pay practices to ensure they are fair and lawful and allow for self-correction.”

The California Employment Lawyers Association, Equal Rights Advocates, and the American Association of University Women, sponsors of the bill, argue that efforts to eradicate wage inequality must focus on pay transparency. They state, “One obstacle to effective enforcement is that pay discrimination often is ‘hidden from sight’ and can be a result of unconscious biases or historical inequities. For example, recent studies reveal significant systemic biases against women due to unconscious cultural biases, particularly in the science and technology industries.”

The California Labor Federation, in support, argues that recent amendments address data privacy and confidentiality concerns. They state, “Additional language protects worker privacy and limits the ability of state officials to disclose data related to individual companies. However, by clearly allowing for the publication of aggregate data, information collected will prove invaluable to both debate over the issue and eventual solutions.”

In opposition, a number of employer organizations, including the California Chamber of Commerce (CalChamber), argues that the bill’s pay data reporting requirement still presents confidentiality, accuracy, and fairness concerns. CalChamber states, “While SB 1284 was previously amended to exempt employer data from the California Public Records Act…, the bill still allows for public disclosure once ‘any proceeding’ is initiated ‘under Section 1197.5 of this code [the Fair Pay Act] or Section 12940 of the Government Code [Fair Employment and Housing Act] involving such information.’ That means the confidentiality of the pay data is conditional and not an absolute bar from public disclosure. The filing of one, potentially frivolous, lawsuit could lead to the exposure of company pay practices. The potential disclosure of the pay data could lead to the public shaming of employers because, while aggregate data might disclose wage disparities, wage disparities do not automatically equate to wage discrimination or a violation of law.”

CalChamber continues, “As Labor Code Section 1197.5 recognizes, there are numerous, lawful, bona fide factors as to why wage disparities may exist between employees performing substantially similar work, such as: (1) different educational or training backgrounds amongst employees; (2) different career experience; (3) varying levels of seniority or longevity with the employer; (4) objective, merit-based system of the employer; (5) a compensation system that measures earning(s) by quantity or quality of production; (6) geographical differences that impact the cost of living and job market; and, (7) shift differentials…Thus, publicly shaming companies for wage disparities that are not unlawful is simply unfair, will discourage growth in California and expose employers to costs associated with defending against potentially meritless litigation.”

Prior Legislation

AB 168 (Eggman) Chapter 688, Statutes of 2017 prohibited an employer from seeking or relying on the salary history information of an applicant as a factor in determining whether to offer an applicant employment or what salary to offer an applicant. The bill also required an employer, upon reasonable request, to provide the pay scale for a position to an applicant.

AB 1209 (Gonzalez-Fletcher) 2017 would have required employers with 500 or more employees in California to provide the Secretary of State with specific information regarding gender wage differentials for exempt employees and board members every two years as part of their corporate filings. AB 1209 was vetoed by Governor Brown.

SB 1063 (Hall) Chapter 866, Statutes of 2016 expanded the pay discrimination provision in California’s Equal Pay Act to cover race and ethnicity.

AB 1676 (Campos) Chapter 856, Statutes of 2016 required that prior salary shall not, by itself, justify any disparity in compensation.

SB 358 (Jackson) Chapter 546, Statutes of 2015 addressed significant loopholes in the Equal Pay Act by requiring employers to justify any gender pay differential with a legitimate non-sex-based factor and prohibiting retaliation against employees for disclosing or discussing their wages with co-workers.

REGISTERED SUPPORT / OPPOSITION:

Support

AAUW (cosponsor)

ACLU

AFSCME

California Employment Lawyers Association (cosponsor)

California Labor Federation

California Women's Law Center

Coalition of Labor Union Women – California Capital Chapter

Consumer Attorneys of California

Equal Rights Advocates (cosponsor)

Legal Aid at Work

National Council of Jewish Women, California

SEIU California

The Women’s Foundation of California

Tradeswomen, Inc.

Voices for Progress

Women Lawyers of Sacramento

YWCA – San Francisco and Marin

Opposition

Agricultural Council of California

Air Conditioning Sheet Metal Association

Associated General Contractors

Brea Chamber of Commerce

CA Chapters of the National Electrical Contractors Association

CA Legislative Conference of the Plumbing, Heating and Piping Industry

CA Sheet Metal and Air Conditioning Contractors, National Association

California Ambulance Association

California Association for Health Services at Home

California Bankers Association

California Chamber of Commerce

California Employment Law Council

California Farm Bureau Federation

California Hotel and Lodging Association

California Land Title Association

California Landscape Contractors Association

California League of Food Producers

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

California Tax Payers Association

California Trucking Association

Cerritos Regional Chamber of Commerce

Citizens Against Lawsuit Abuse

Construction Employers’ Association

Culver City Chamber of Commerce

Family Business Association of California

Fresno Chamber of Commerce

Gateway Chamber Alliance

Greater Bakersfield Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Greater Irvine Chamber of Commerce

Long Beach Area Chamber of Commerce

Murrieta Chamber of Commerce

National Association of Mutual Insurance Companies

National Federation of Independent Business

Northern California Allied Trades

Official Police Garages of Los Angeles

Orange County Business Council

Palm Desert Area Chamber of Commerce

Personal Insurance Federation of California

Rancho Cordova Chamber of Commerce

Redondo Beach Chamber of Commerce

Retail Industry Leaders Association

San Gabriel Valley Economic Partnership

Santa Ana Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Simi Valley Chamber of Commerce

South Bay Association of Chambers of Commerce

Southern California Contractors Association

Southwest California Legislative Council

Torrance Chamber of Commerce

United Contractors

Valley Industry and Commerce Association

Wall and Ceiling Alliance

Western Growers Association

Western Wall & Ceiling Contractors Association

Wildomar Chamber of Commerce

Wine Institute

Analysis Prepared by: Megan Lane / L. & E. /

 THIRD READING  

Bill No: SB 1284

Author:

: 5/25/18

Vote:

SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/11/18

AYES: Pan, Jackson, Mitchell, Wieckowski

NOES: Stone

SENATE JUDICIARY COMMITTEE: 5-2, 4/17/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT:

SOURCE: AAUW

California Employment Lawyers Association

Equal Rights Advocates

DIGEST:

This bill requires that employers with 100 or employees provide the Department of Industrial Relations and the Department of Fair Employment and Housing with employee pay data, as specified.

ANALYSIS:

Existing law:

1. Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
2. Prohibits explicitly an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
3. Requires every employer, employment agency, and labor organization subject to this subchapter shall: (a) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (b) preserve such records for such periods, and (c) make such reports therefrom as the Equal Employment Opportunity Commission (EEOC) shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this title. (Federal Civil Rights Act of 1964, §709(c), Title VII)
4. Requires that, on or before March 31 of each year, every employer that is subject to Title VII of the Civil Rights Act of 1964, as amended, and that has 100 or more employees, shall file with EEOC or its delegate executed copies of Standard Form 100, as revised (otherwise known as "Employer Information Report EEO-1"), in conformity with the directions set forth in the form and accompanying instructions. (29 CFR §1602.7)

This bill:

1. Requires that, on or before September 30, 2019, and on or before September 30 each year thereafter, an employer that is incorporated under the laws of this state that has 100 or more employees shall submit a pay data report to the Department of Industrial Relations (DIR).
2. Requires that DIR makes the reports available to, the Department of Fair Employment and Housing (DFEH).
3. Requires the pay data report includes the number of employees, categorized by race, ethnicity, and sex in each of the following job categories:
   1. Executive or senior level officials and managers
   2. First or mid-level officials and managers
   3. Professionals
   4. Technicians
   5. Sales workers
   6. Administrative support workers
   7. Craft workers
   8. Operatives
   9. Laborers and helpers
   10. Service workers
4. Requires than an employer identify employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupation Employment Statistics survey. For purposes of establishing these numbers, an employer shall use each employee’s total earnings as shown on the Internal Revenue Service Form W-2 for a 12-month period looking back from any pay period between July 1 and September 30 of each calendar year.
5. Requires that, for part-time and partial-year employment, the employer must include the total number of hours worked by each employee counted in each pay band over the last 12 months.
6. Requires that, for employers with multiple establishments, the employer must submit a report for each establishment and a consolidated report that includes all employees.
7. Requires that the pay data report includes a section for employers to provide clarifying remarks regarding any of the information provided. Clarifying remarks are not required.
8. Provides that, if an employer is required to file an Employer Information Report, otherwise known as the EEO-1 Report, with EEOC or other federal agency, the employer may satisfy compliance with the requirements above by submitting the Employer Information Report. This bill requires that the Employer Information Report must include the same or substantially similar pay data required under this section.
9. Requires that, if an employer fails to comply, he or she is subject to a civil penalty of $500 for the initial penalty and $5,000 for subsequent violations. This bill also requires that any civil penalties collected must be deposited into the Labor Enforcement and Compliance Fund, and upon appropriation by the Legislature, shall be allocated to the Division of Labor Standards Enforcement to enforce pay equity requirements.
10. Permits the Labor Commissioner to enforce the above provision through issuing a citation.
11. Provides that it is unlawful for any officer or employee of the DIR or the DFEH to make public in any manner whatever any individually identifiable information obtained pursuant to their authority under this bill prior to the institution of any proceeding. This bill also exempts pay data reports from the California Public Records Request Act.
12. Permits DIR or DFEH to make aggregated data reports available, provided that the reports are not calculated to allow for the release of individually identifiable data.
13. Requires that the DIR holds onto all pay data reports for at least 10 years.
14. Makes findings and declarations on limiting public access to the pay data reports.

Comments

The Equal Employment Opportunity Commission and Form EEO-1

EEOC is a federal commission, which was created when President Johnson signed the Civil Rights Act of 1964. Since its creation, the EEOC has fought discrimination in all forms throughout America’s workplaces, including discrimination on the basis of race, color, religion, national origin, age, disability, and of either sex. The EEOC was an early pioneer in the fight for gender equality – as early as 1968, the EEOC was arguing in court that state laws which prevented women from certain occupations were illegal and preempted under federal law.

Starting in 1966, the EEOC required employers with 100 or more employees to submit EEO-1 forms, which showed the representation of men and women of different ethnic groups in nine different occupational classifications. According to the EEOC, the EEO-1 data was invaluable in enforcing anti-discrimination laws and conducting public hearings throughout the country to bring attention to the issue of discrimination in the workplace. The EEO-1 continues to be required by the EEOC, and continues to be used to enforce anti-discrimination laws throughout the country.

This bill makes the EEO-1 (or a form with the same or substantially similar pay data current required by the EEO-1) available to DIR and DFEH to enforce anti-discrimination laws.

Related/Prior Legislation

SB 358 (Jackson, Chapter 546, Statutes of 2015) prohibited an employer from paying any of his or her employees at wage rates less than those paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, DIR would incur annual costs of up to $2 million to implement and enforce the provisions of the bill (special fund).

SUPPORT: (Verified 5/25/18)

AAUW (co-source)

California Employment Lawyers Association (co-source)

Equal Rights Advocates (co-source)

ACLU

AFSCME

California Labor Federation

Coalition of Labor Union Women – California Capital Chapter

Consumer Attorneys of California

National Council of Jewish Women, California

SEIU California

The Women’s Foundation of California

Tradeswomen, Inc.

Voices for Progress

Women Lawyers of Sacramento

YWCA – San Francisco and Marin

OPPOSITION: (Verified 5/25/18)

Agricultural Council of California

Associated General Contractors

Brea Chamber of Commerce

California Ambulance Association

California Association for Health Services at Home

California Chamber of Commerce

California Employment Law Council

California Hotel and Lodging Association

California Landscape Contractors Association

California League of Food Producers

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

Citizens Against Lawsuit Abuse

Construction Employers’ Association

Culver City Chamber of Commerce

Fresno Chamber of Commerce

Greater Bakersfield Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Murrieta Chamber of Commerce

National Federation of Independent Business

Official Police Garages of Los Angeles

Orange County Business Council

Palm Desert Area Chamber of Commerce

Rancho Cordova Chamber of Commerce

San Gabriel Valley Economic Partnership

Santa Maria Valley Chamber of Commerce

Simi Valley Chamber of Commerce

Torrance Chamber of Commerce

Valley Industry and Commerce Association

Western Growers Association

Wildomar Chamber of Commerce

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California (CAOC) support SB 1284, arguing:

Wage disparities persist, resulting in an estimated $39 billion in lost wages for women each year in California. Pay discrimination is not just a women’s issue, but also harms families and the state’s economy. Nationwide, women overall make 80 cents to every dollar a man earns. Women working full‐time make a median 84 cents to every dollar earned by men, and for women of color, the gap is far worse. In 2016, Asian‐American women earned 72.5 cents, African‐American women 63 cents, Native American women 52.1 cents, and Latinas just 43 cents for every dollar earned by white, non‐Hispanic men.

SB 1284 will allow these state agencies to identify patterns of wage disparities and allow for targeted enforcement of equal pay laws, when appropriate. For these reasons, CAOC supports SB 1284.

ARGUMENTS IN OPPOSITION: The California Chamber of Commerce opposes SB 1284, arguing:

SB 1284 seeks to collect pay data according to job title, not according to whether the jobs are “substantially similar” for purposes of comparison… The term “substantially similar” was adopted in Labor Code Section 1197.5 to capture the intent of equal pay – meaning that employees who, with minor deviations, perform the same work according to a composite of skill, responsibility and effort, should be paid the same wage rate, unless a bona fide factor for the disparity exists.… Comparatively, two in-house attorneys may have the same job title, but may not actually have substantially similar job duties for purposes of comparison…

Aggregate data as proposed in SB 1284 fails to take these valid, non-discriminatory reasons into consideration and will create a false impression of wage discrimination where none exists. For example, there could be a disparity in the mean of salaries between two exempt employees because one employee has only worked for the employer for 6 months, whereas the other employee has been with the employer for 10 years....

SB 1284 requires employers to provide pay data regarding an employee’s total earnings as shown on the Internal Revenue Service Form W-2. However, a W-2 form does not take into account an employee’s own decisions and actions that can also create wage disparity that has nothing to do with discriminatory intent by the employer.

Finally, a wage disparity can also be created by an employee’s personal choices as to pre-tax payroll deductions. One employee may max out all pre-tax deductions for a 401(k), dependent child reimbursement, medical expense reimbursement, college savings, etc., while another employee may not request any such deductions be made to his or her paycheck. None of these employee choices and actions will be captured or reflected in SB 1284 to justify a potential wage disparity. Again, this omission on the report will create the false impression of wage discrimination, where none exists.

Prepared by:

5/29/18 9:00:17

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1284 (Jackson) - Employers: annual report: pay data

Bill Summary:

SB 1284 would require large employers incorporated in California to report pay and job title information broken down by gender, race, and ethnicity, to the Department of Industrial Relations (DIR) on an annual basis.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 25, 2018

Fiscal Impact:

DIR would incur annual costs of up to $2 million to implement and enforce the provisions of the bill (special fund).

Author Amendments:

• Specify that pay data reports will cover calendar year.
• Adds a $5,000 penalty for subsequent violations after the initial one.
• Allows the Labor Commissioner to assess penalties through Labor Code 1197.1, rather than through a civil action.
• Allows DIR to get rid of reports after ten years.
• Add findings language required for exemption from public record acts requests.

-- END --

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1284 (Jackson) - Employers: annual report: pay data

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1284 would require large employers incorporated in California to report pay and job title information broken down by gender, race, and ethnicity, to the Department of Industrial Relations (DIR) on an annual basis.

Fiscal Impact:

DIR estimates that it would incur annual costs ranging from $900,000 to $2 million to implement and enforce the provisions of the bill (special fund, see Staff Comments).

Background:

Studies consistently show that women continue to earn less than their male counterparts. In 1963, women who worked full-time year-round made 59 cents on average for every dollar earned by a man according to the American Association of University Women (AAUW). Today, women working full time in the United States typically are paid just 80 percent of what men are paid, a gap of 20 cents.

The persistent gender pay gap has resulted in significant state efforts to curb wage discrimination. In 1949, California enacted the California Equal Pay Act, which targeted wage discrimination against women by prohibiting an employer from paying an employee a wage rate that is less than the rate of an employee of the opposite sex who does comparable work. SB 358 (Jackson, 2015) proposed a number of procedural and substantive changes to the California Equal Pay Act in order to make it easier for a victim of wage discrimination to identify an unlawful wage disparity and seek an appropriate remedy. Most notably, it changed the terminology so that an employee can more reasonably prove that he or she received lower wages for "substantially similar" work; clarifies the employer's burden to demonstrate that a wage disparity is based on some legitimate factor other than sex; and prohibits employers from interfering with employees' ability to discuss and share information about their wages. Additionally, in 2016 AB 1676 (Campos) was enacted which specifies that prior salary cannot, by itself, justify any disparity in compensation under the bona fide factor exception in the existing Equal Pay Act law. Also in 2016, SB 1063 (Hall) was enacted to expand the prohibitions laid down in the California Equal Pay Act regarding gender, to include discrimination based on race or ethnicity.

Proposed Law:

This bill would, among others, do the following things:

• Require that, by September 30, 2019, and September 30 each year thereafter, a private employer that has 100 or more employees to submit a pay data report to DIR.
• Require that DIR make the reports available to the Department of Fair Employment and Housing (DFEH) upon request.
• Require the pay data report includes (1) the number of employees, categorized by race, ethnicity, and sex in specified job categories, and (2) the number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupation Employment Statistics survey, as specified.
• Require that, for part-time and partial-year employment, the employer must include the total number of hours worked by each employee, as specified.
• Require that, for employers with multiple establishments, the employer must submit a report for each establishment, as well as a consolidated report that includes all employees.
• Require that the pay data report includes a section for employers to provide clarifying remarks regarding any of the information provided.
• Provide that, if an employer is required to file an Employer Information Report (EEO-1 Report) with the United States Equal Employment Opportunity Commission or other federal agency, the employer may use it to satisfy compliance with the requirements of this bill. This bill would require that the Employer Information Report must include the same pay data.
• Require that employers failing to comply are subject to a civil penalty of five hundred dollars ($500). This bill also would require that any civil penalties collected must be deposited into the Labor Enforcement and Compliance Fund, and upon appropriation by the Legislature, would be allocated to the DLSE to enforce pay equity requirements.
• Specify that it would be unlawful for staff at DFEH to make obtained “individually identifiable information” (as defined) public in any manner.
• Provide that any information disclosed to DIR shall be considered confidential information and not subject to disclosure pursuant to the California Public Records Act.

Related Legislation:

• AB 168 (Eggman, Ch. 688, Stats. 2017) prohibited an employer from seeking or relying on the salary history information of an applicant as a factor in determining whether to offer an applicant employment or what salary to offer an applicant. The bill also required an employer, upon reasonable request, to provide the pay scale for a position to an applicant.
• AB 1209 (Gonzalez-Fletcher, 2017) would have required employers with 500 or more employees in California to provide the Secretary of State with specific information regarding gender wage differentials for exempt employees and board members every two years as part of their corporate filings. The bill was vetoed by the Governor.
• SB 358 (Jackson, Chapter 546, Statutes of 2015) prohibits an employer from paying any of his or her employees at wage rates less than those paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility.

Staff Comments:

This bill would add both technological and enforcement workload-related duties to DIR. Regarding the former, the bill does not specify a retention period; consequently, DIR anticipates having to electronically store the reports indefinitely. The resulting costs to maintain this data on a server or at physical storage site over a long period of time could be substantial. DIR would also need to develop maintain an online portal to facilitate the data collection for the estimated 150,000 impacted employers.

Additionally under the bill, DIR would have to monitor compliance, resulting in increased enforcement costs. As noted above, the bill would provide for a $500 civil penalty. However, it does not specify an enforcement mechanism through which DIR could collect the penalty, such as through the issuance of citations to employers. Instead, DIR anticipates needing to bring civil suits to collect the potential large number of violations, requiring additional legal staff. The number of violations cannot be determined in advance, leading to the department’s range estimate.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 1284 (Author:Jackson)

Version: February 16, 2018

Hearing Date: April 17, 2018

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Employers: annual report: pay data

DESCRIPTION

This bill would require large employers incorporated in California to report pay and job title information broken down by gender, race, and ethnicity, to the Department of Industrial Relations on an annual basis.

BACKGROUND

First enacted in 1949, California’s Equal Pay Act originally required that employers give equal pay to men and women for equal work on jobs at the same establishment. (AB 160, Grunsky et al; Ch. 804, Stats. 1949). In recent years, the Act has evolved substantially. Senate Bill 358 (Jackson, Ch. 546, Stats. 2015) removed the requirement that the jobs be at the same establishment, placed the burden on the employer to provide a bona fide, non-discriminatory basis for wage differentials, and strengthened the anti-retaliation provisions of the Act. Senate Bill 1063 (Hall, Ch. 866, Stats. 2016) expanded the scope of the Act to cover race and ethnicity in addition to gender.

Nevertheless, the pay gap persists. According to the United States Census Bureau and the United States Bureau of Labor Statistics, the nationwide wage gap between men and women has shrunk since the 1960s when the federal Equal Pay Act was enacted. Yet, by 2012, female workers still earned just 78 cents for every dollar paid to a man. Three years later, the gap had only improved by two cents. According to the Institute for Women’s Policy Research, unless further action is taken, the gender wage gap will not close entirely until 2058.

As troubling as the gender pay gap is, disparities in earnings based on race and ethnicity are even larger. According to the Pew Research Center, in 2015, while the average white male earned $21 per hour, his black and Latino counterparts received just $15 and $14, respectively.^[1] These differences in pay cannot be fully explained by differences in education levels, either. The Pew Research Center’s data shows that college-educated black and Latino men receive only about 80 percent of the pay that college-educated white men do. (Ibid.)

The intersection of gender, race and ethnicity produce the greatest inequities of all: Black and Latina women earn 65 and 58 cents respectively, for every dollar a white male earns. (Ibid.) All of these differences in pay compound over time and are reproduced in retirement, since pensions and retirement savings contributions frequently depend on earnings.

In an effort to monitor the pay gap and further spur its closure, in 2016 the Obama Administration announced a plan to require large companies to report pay data by race and gender as part of their annual filings with the Equal Employment Opportunity Commission (EEOC). (81 FR 5113 et seq.) Under the proposal, the EEOC was to begin collecting this data in 2018. In August 2017, however, the Trump Administration shut down further implementation of the project.^[2]

This bill, modeled closely on the Obama Administration’s proposal, would require large employers in California to report pay and job title information broken down by gender, race, and ethnicity, to the Department of Industrial Relations on an annual basis. In the process, the bill would cause these employers to undertake self-audits of their pay structures. The resulting aggregate data would enable the state to monitor overall progress, or the lack thereof, toward achieving pay equity.

This bill passed out of the Senate Committee on Labor and Industrial Relations on a vote of 4-1.

CHANGES TO EXISTING LAW

Existing law prohibits, under the California Equal Pay Act, an employer from paying an employee wage rates less than the rates paid to employees of the opposite sex for substantially similar work requiring the same skills, effort, and responsibility when performed under similar working conditions. (Lab. Code Sec. 1197.5(a).)

Existing law prohibits employers from paying employees a wage rate less than the rate paid to employees of a different race or ethnicity for substantially similar work requiring the same skills, effort, and responsibility when performed under similar working conditions. (Lab. Code Sec. 1197.5(b).)

Existing law sets forth exceptions to these prohibitions when a wage differential is based on one or more of the following: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) a bona fide factor other than sex, such as education, training, or experience. (Lab. Code Secs. 1197.5(a)(1)(A-D) and 1197.5(b)(1)(A-D).)

Existing law specifies that prior salary by itself may not justify any disparity in compensation. (Lab. Code Secs. 1197.5(a)(3) and 1197.5(b)(3).)

Existing law makes it a misdemeanor punishable by fine or imprisonment for any employer or person acting individually as an officer, agent, or employee of another person who willfully: (a) pays or causes to be paid to any employee a wage less than the rate paid to an employee of another sex, race, or ethnicity; or (b) reduces the wages of any employee to comply with the California Equal Pay Act. (Lab. Code Sec. 1199.5.)

Existing law states that any employer who violates the California Equal Pay Act is liable for the amount of the wages and interest that the employee is deprived of, in addition to liquidated damages. (Lab. Code Sec. 1197.5(c).)

Existing law provides that the Division of Labor Standards Enforcement (DLSE) shall administer and enforce the California Equal Pay Act, and may supervise the payment of wages and interest found to be due by an employer in violation of the Act. (Lab. Code Sec. 1197.5(d).)

Existing law requires every private sector employer to maintain records of the wages and wage rates, job classifications, and other terms and conditions of employment of the persons employed, to be kept on file for three years. (Lab. Code Sec. 1197.5(e).)

Existing law authorizes any employee to file a complaint with the DLSE that their wages are less than those owed to the employee under the California Equal Pay Act, and the DLSE is required to investigate these complaints, as specified. (Lab. Code Sec. 1197.5(f).)

Existing law authorizes the Department of Industrial Relations or the DLSE to 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 for violations of the California Equal Pay Act, and to recover costs of suit. (Lab. Code Sec. 1197.5(g).)

Existing law sets the statute of limitation to file a civil action for a violation of the Equal Pay Act at two years after the cause of action accrues generally, and three years after the cause of action accrues if the violation was willful. (Lab. Code Sec. 1197.5(i).)

Existing law makes it an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California, for an employer, because of the employee’s race or gender, to discriminate against an employee in compensation or in terms, conditions, or privileges of employment. (Gov. Code Sec. 12940(a).)

Existing law requires an employment discrimination complaint to be filed with the Department of Fair Employment and Housing within one year of the act of discrimination, with specified exceptions. (Gov. Code 12960(d).)

This bill would define “employee” for purpose of the proposed statute, to mean “an individual on an employer’s payroll, including a part-time individual, for whom the employer is required to withhold federal social security taxes from that individual’s wages.”

This bill would require employers incorporated in California with 100 or more employees, as defined, to submit a pay data report, including the number of employees in specified job types and the number of employees in specified pay bands, broken down by race, ethnicity, and sex to the Department of Industrial Relations (DIR) annually beginning on or before September 20, 2019.

This bill would specify that employers shall identify an employee’s total earnings as shown on the Internal Revenue Service Form W-2 for a 12 month period looking back from any pay period between July 1 and September 30 of each reporting year.

This bill would direct employers, when reporting part-time and partial-year employment, to include the total number of hours worked by each employee counted in each pay band over the last 12 months.

This bill would provide that employers with multiple establishments, defined as an “economic unit producing goods or services,” must submit a report for each establishment and a consolidated report that includes all employees.

This bill would give employers discretion to submit clarifying remarks as part of their report and to submit the U.S. Equal Economic Opportunity Commission’s Employer Information Report, or EEO-1, to satisfy the annual reporting requirements of this bill.

This bill would subject employers to a civil penalty of $500 for failure to comply with the reporting requirements of this section, and direct any funds collected as a result to the Labor Enforcement and Compliance Fund, for use, upon appropriation, to enforce the provisions of the Pay Equity Act.

COMMENT

1. Stated need for the bill

According to the author:

For more than 50 years, large companies have submitted demographic information annually to the federal agency responsible for enforcing workplace anti-discrimination laws, the Equal Employment Opportunity Commission. This data has helped identify patterns of employment segregation and discrimination. Recognizing that the pay discrimination is difficult to detect and address, the Obama Administration announced a proposed revision to the Employer Information Report (EEO-1) to include the reporting of pay data by race and gender beginning in 2018. The EEO-1 pay data collection rule was adopted by the Commission and approved by Office of Management and Budget after a rigorous and transparent process that spanned years and included a pilot study, a public hearing and two public comment periods. The agency heard from employer and employee advocates, researchers, academics, and members of the public, and ultimately determined that the final rule’s burden to employers was manageable and the overall benefit substantial.

However, in August 2017, the Trump Administration put a halt to the implementation of this new rule, dealing a significant blow to the fight for equal pay.

SB 1284 will ensure that, despite setbacks at the federal level, this important pay data will continue to be compiled and aggregated in California. Modelled after the Obama Administration order, payroll data will be broken down by gender, race, ethnicity, and job category.

SB 1284 will allow these state agencies to more efficiently identify patterns of wage disparities and allow for targeted enforcement of equal pay laws, when appropriate. In addition, it will encourage employers to analyze their own pay practices to ensure they are fair and lawful and allow for self-correction.

The sponsors of the bill, Equal Rights Advocates, the California Employment Lawyers Association, and the American Association of University Women, write:

One obstacle to effective enforcement is that pay discrimination often is “hidden from sight” and can be a result of unconscious biases or historical inequities. For example, recent studies reveal significant systemic biases against women due to unconscious cultural biases, particularly in the science and technology industries. […]

SB 1284 will allow for the designated state agencies to more efficiently identify patterns of wage disparities and allow for targeted enforcement of equal pay laws, when appropriate. Very importantly, it will encourage employers to analyze their own pay practices to ensure they are fair and lawful and allow for self-correction. Simply compiling the data will prompt some businesses to make necessary changes.

In further support, the California Women’s Law Center writes:

Despite recent progress, the gender pay gap persists, resulting in an estimated $78.6 billion in lost wages for women each year in California. […] SB 1284 will ensure that, despite setbacks at the federal level, this important pay data will continue to be compiled and aggregated in California.

2. Concerns expressed about the bill

In opposition to the bill, the California Chamber of Commerce and a series of affiliated organizations write:

[SB 1284] will create a false impression of wage discrimination or unequal pay where none exists and, therefore, subject employers to unfair public criticism, enforcement measures, and significant litigation costs to defend against meritless claims. It also creates a privacy concern for employees and the disclosure of their wages.

3. The Obama administration’s proposed program

In announcing its fair pay data reporting program, the Obama administration summarized it as follows:

Today, the EEOC is proposing revisions to its longstanding EEO-1 form to require all employers with 100 or more employees […] who currently submit the EEO-1 to submit additional summary data on wages paid to their employees, including by gender, race, and ethnicity. As currently proposed, this information would be reported across 10 job categories and by 12 pay bands, and will not require the reporting of specific salaries of each individual employee. […]

This new policy lays important groundwork for progress toward achieving equal pay, as it will encourage and facilitate greater voluntary compliance by employers with existing federal pay laws – such as by evaluating how they are currently paying their employees. It will also assist the EEOC […] in better focusing investigations on employers that are unlawfully shortchanging workers based on their gender, race, or ethnicity.^[3]

The specific details of the Obama administration’s proposed program are laid out in depth at 81 Federal Register 5113 et seq.

4. Comparison of this bill to AB 1209 (Gonzalez-Fletcher, 2017)

In some respects, this bill is similar to AB 1209, a bill authored by Assemblymember Lorena Gonzalez-Fletcher in 2017. Although the California Senate passed AB 1209 on a 23-13-4 vote and the Assembly concurred with the final form of the bill by a vote of 47-23-9, Governor Brown ultimately vetoed it. He cited two principal reasons for the veto. First, he wrote that “ambiguous” language in the bill “could be exploited to encourage more litigation than pay equity.” Second, he said: “[w]hile transparency is often the first step to addressing an identified problem, it is unclear that the bill… will provide data that will meaningfully contribute to efforts to close the gender wage gap.”

Like this bill, AB 1209 proposed to require large California employers to report pay data broken down by gender in order to identify possible discrimination. Opponents of this bill assert that it shares many qualities with AB 1209, qualities they argue are faults.

While there is an overall similarity of purpose, this bill departs from AB 1209 both in its overall design and in several key details. First, AB 1209 proposed an entirely new set of reporting requirements. This bill is closely modeled on the Obama administration’s program and builds upon annual EEOC reporting requirements with which large employers are already obliged to comply. Second, AB 1209 would have collected a different data set. Under AB 1209, employers would have had to determine and report the difference between mean and median wages for male and female employees in every job classification or title. This bill only requires employers to submit information about earnings by pay band and by general job category. Third, AB 1209 would have directed the Secretary of State to publish the resulting data, unfiltered, online, for all the world to see. This bill does not currently specify what will be done with the data, but in accordance with the stated intent to follow the model set out by the Obama administration, the author proposes to amend the bill so that only aggregate data would be made available to the public. Finally, whereas AB 1209 would only have collected information about pay disparity by gender, this bill also includes data collection on pay differentials by race and ethnicity.

5. Employers covered by the bill

The current version of the bill states that: “an employer that is incorporated under the laws of this state that has 100 or more employees shall submit a pay data report to the department.” There are many California employers with 100 or more employees,^[4] but there may be far fewer large companies that are incorporated in California. As a general matter, large companies tend to incorporate in other states, primarily Delaware, because Delaware’s corporate laws are seen as business friendly in comparison to other jurisdictions.^[5]

If only very few employers report the data sought under this bill, the resulting information may not be as informative as a broader sample would be. With this in mind, the author proposes to amend the bill in Committee to broaden the reporting requirement to cover all private employers with 100 or more employees, not just those incorporated in California. Such coverage would be consistent with the program that the Obama administration had proposed and would also align with size of employer that is already obligated, by federal law, to file annual EEO-1 forms with demographic information.

6. Data specificity, privacy and litigation considerations

For purposes of understanding what is causing pay gaps and designing remedial policy, the more specific the data collected, the more informative it will be. On the other hand, asking companies to provide very detailed data presents privacy risks and facilitates litigation. The author asserts that the bill is intended to model the Obama administration’s approach to balancing these concerns. The Obama administration’s program would have collected employee data on an aggregate level. Each year, employers would have reported their employees’ annual earnings by pay band, using W-2s to identify which pay band the employee fits within. (81 F.R. 5116-7.)

As drafted, however, this bill’s language could be read to require employers to report specific earnings by individual. Subdivision (c) of the bill states that employers shall “identify each employee’s total earnings as shown” on the W-2, rather than directing employers to report by pay band, using the W-2. In order to avoid such an interpretation the author proposes to revise the bill’s language to hew more closely to the Obama administration’s program. That should eliminate the concern, expressed by some opponents of the bill, that it would obligate employers to report specific earnings information for specific individuals.

In a similar vein, the Obama administration’s program was built upon existing Equal Employment Opportunity Commission (EEOC) data reporting requirements. The EEOC is subject to quite strict confidentiality with regard to the data reported: EEOC staff who disclose the data are subject to fines and even prosecution for a misdemeanor. By contrast, the current version of SB 1284 does not mention any restrictions on the use or sharing of the data reported. The author proposes to amend the bill to better match the Obama administration’s model and to better protect company data against public disclosure. Specifically, the author proposes amendments that would prohibit Department of Industrial Relations (DIR) and Department of Fair Employment and Housing (DFEH) personnel from disclosing the data, and would clarify that the data is exempt from the California Public Records Act. Going forward, the author may wish to identify an appropriate sanction for DIR and DFEH employees in the event that they do disclose the data.

7. Utility of the resulting data

The Equal Pay Act permits employers to pay employees different amounts for substantially similar work provided that the difference can be justified “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.” (Lab. Code Sec. 1179.5(a).)

The data collected under this bill will only show the existence of pay gaps. It will not identify the degree to which any such gaps can be explained by some of the legally permissible bona fide factors for disparate pay. So while the data resulting from this bill would provide important information about differences between how much people are paid, it would not indicate how much of that pay gap is the result of Equal Pay Act violations. This appears to be what the opponents of the bill are referring to when they remark that SB 1284 “will create a false impression of wage discrimination where none exists.”

Even so, at least two arguments can be made for why the pay equity gap data this bill proposes to collect would still be informative and helpful. First, the data would have an important role to play as an ongoing measure of broader barriers to workplace equity. After all, the factors that make wage differentials legally acceptable under the Equal Pay Act, such as seniority, education, training, or experience, for instance, are themselves influenced by underlying discrimination. That white men often have more seniority and education than their co-workers is not, obviously, because of any inherent ability to endure longer in the workplace or to collect more degrees; those gaps, too, are a function of discrimination. Thus, while a measure of the pay gap that does not account for the “bona fide factors” would not precisely measure compliance with the Equal Pay Act, it would serve as a standing barometer of whether or not we are progressing toward greater equality of opportunity in the larger sense.

Second, even if the cumulative data produced by this bill would have certain explanatory limitations, the process that each individual company would have to go through to produce the data might have a tremendous impact on pay equity. As the example in the next Comment illustrates, the process of conducting a pay equity self-audit, even if it is merely for the purpose of complying with this bill, can produce transformative results. Many companies may be unaware that their pay structures contain disparities that cannot be explained by any of the permissible factors enumerated in the Pay Equity Act. Upon discovery of such inequities, these companies may be inspired, whether by fear of litigation under the Pay Equity Act or simply out of a sense of fairness, to correct those problems. On balance, in fact, it is plausible that the self-auditing required by this bill might ultimately play a bigger role in closing the wage gap than the publication and monitoring of the overall data.

8. The correctional power of self-audits

In order to compile and report the required data under the terms of this bill, the covered employers will have to conduct a self-audit. They will need to gather and organize information about how much they are paying various workers and break it down by gender, race, and ethnicity. While the bill does not require employers to do anything if they discover, upon completion of the self-audit, that they are paying people differently based on their gender, race, or ethnicity, many employers may elect to look further into the situation, either from a sense of fairness or out of a concern to make sure that they are, in fact, compliant with the Pay Equity Act.

As evidence that conducting this sort of self-audit can lead to change and greater compliance, the author points to what took place at the company Salesforce in 2015. There, female managers convinced the male CEO, Marc Benioff, to order a Pay Equity Act compliance self-audit. Benioff was initially dismissive, expressing confidence that the company paid its employees equitably, so that the self-audit was unnecessary. To his surprise, however, the self-audit revealed that, at the time, Salesforce was in fact underpaying its female employees,^[6] even taking into account factors like seniority and location. Based on the self-audit, Benioff committed Salesforce to make up the difference. Forbes reported that the process affected 6% of the company’s 17,000 salaries and cost Salesforce around $3 million. ^[7] A few years later, after Salesforce had acquired some other companies’ workers and their corresponding pay structures, the company conducted another self-audit and found that it had to make further adjustments. (Ibid.)

Under this bill, all large California employers would regularly undergo a similar self-auditing process every year.

9. Uses for the data

Apart from indicating that the Department of Industrial Relations is to make the data collected under this bill available to the Secretary of State, the Department of Fair Employment and Housing, and the Commission on the Status of Women and Girls, this bill does not indicate what more will be done with that data. Presumably, the Department of Industrial Relations and the Department of Fair Employment and Housing would use the data to identify outlier industries and companies where follow up may be merited to ensure compliance with the Equal Pay Act.

Could the recipients of the data publish reports based on it? If so, to what level of specificity? Would the data be available to the public pursuant to a Public Records Act request? As it appears in print now, the bill does not say.

The Obama administration’s proposed program included a strict prohibition on disclosure of any data that could have been traced to any one individual or company, thus assuaging privacy and litigation concerns. At the same time, the Obama administration’s program called for publication of aggregate reports based on the data collected. In keeping with the author’s overall intent to model this bill after the Obama administration’s program, the author proposes to amend the bill to include provisions permitting publication of aggregate data, while prohibiting the disclosure of any data that could result in the identification of individual employees or employers.

10. Ensuring sufficient incentive for compliance

The bill in print proposes that employers who fail to comply with their duty to report pay data would be subject to a $500 civil penalty. In comparison to the size of the budgets of the companies subject to this reporting requirement, $500 is quite a small sum. Some employers might even choose to pay the penalty rather than go through the process of compiling the data for submission, thus defeating the data collection purpose behind the bill.

As the bill progresses, therefore, the author may wish to consider additional mechanisms for encouraging compliance. A simple approach might be just to increase the fine. Alternatively, failure to submit the required data could be made to trigger an Equal Pay Act audit by the Department of Industrial Relations. Still another possibility would be to craft an evidentiary presumption to the effect that failure to report the data switches the burden of proof in any enforcement action. An employer who did not submit the data would have the burden of showing that it is not in violation of the Equal Pay Act. Something akin to such a burden shift exists in the context of wage and hour law: where the employer fails to provide an employee with the required pay stubs showing the hours worked, the Labor Commissioner will presume that the employee’s statements about the hours worked are correct and it is up to the employer to prove otherwise. (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721.)

11. Proposed Amendments

In order to address the issues set forth in the analysis, above, and to honor commitments made to the Senate Committee on Labor and Industrial Relations, the author has offered to incorporate amendments into the bill that would:

• make it so that all employers with 100 or more employees are covered, regardless of their state of incorporation;
• clarify that employers need not provide specific pay data for each employee, but are to use each individual’s W-2 information as the basis on which to determine and report what pay band the individual falls within;
• narrow the number of entities to whom the pay data would be accessible; and
• ensure that the pay data submitted by employers would not be available publicly, except in aggregate form.

The specific amendments are as follows:

Amendment 1

On page 2, in line 7, strike out “an” and insert:

a private

Amendment 2

On page 2, in lines 7 and 8, strike out “that is incorporated under the laws of this state”

Amendment 3

On page 2, in line 10, strike out “the Secretary of State,”

Amendment 4

On page 2, in lines 11 and 12, strike out “Housing, and the Commission on the Status of Women and Girls” and insert:

Housing

Amendment 5

On page 2, strike out lines 26 through 32, inclusive, and insert:

(2) The number of employees by race, ethnicity, and sex, whose annual earnings falls within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupation Employment Statistics survey. For purposes of establishing these numbers, an employer shall use each employee’s total earnings as shown on the Internal Revenue Service Form W-2 for a 12-month period looking back from any pay period between July 1 and September 30 of each reporting year. Employers shall tabulate and report the number of employees whose W-2 earnings for the prior 12 months fell within each pay band.

Amendment 6

On page 3, strike out lines 1 and 2

Amendment 7

On page 3, in line 3, strike out “(d)” and insert:

(c)

Amendment 8

On page 3, in line 6, strike out “(e)” and insert:

(d)

Amendment 9

On page 3, in line 9, strike out “(f)” and insert:

(e)

Amendment 10

On page 3, in line 10, after “provided.” insert:

An employer is not required to provide clarifying remarks.

Amendment 11

On page 3, in line 11, strike out “(g)” and insert:

(f)

Amendment 12

On page 3, in line 15, after “same” insert:

or substantially similar

Amendment 13

On page 3, in line 17, strike out “(h)” and insert:

(g)

Amendment 14

On page 3, in line 24, strike out “(i)” and insert:

(h)

Amendment 15

On page 3, after line 31, insert:

(i) It shall be unlawful for any officer or employee of the department or the Department of Fair Employment and Housing to make public in any manner whatever any individually identifiable information obtained pursuant to their authority under this section prior to the institution of any proceeding under Section 1197.5 or Section 12940 of the Government Code involving such information. For the purposes of this subdivision, “individually identifiable information” includes data that is associated with a specific person or business.

(j) Any information disclosed to the department pursuant to this section shall be considered confidential information and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).

(k) Subdivision (i) notwithstanding, the department or the Department of Fair Employment and Housing may develop and publicize aggregate reports based on the data obtained pursuant to their authority under this section provided that the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person.

Support: American Civil Liberties Union of California Center for Advocacy and Policy; Coalition of Labor Union Women, California Capital Chapter; California Women’s Law Center; Consumer Attorneys of California; National Council of Jewish Women, California; Service Employees International Union California; Tradeswomen, Inc.; Voices for Progress; the Women’s Foundation of California

Opposition: Agricultural Council of California; Associated General Contractors; Brea Chamber of Commerce; California Ambulance Association; California Association for Health Services at Home; California Chamber of Commerce; California Employment Law Council; California Hotel and Lodging Association; California Landscape Contractors Association; California League of Food Producers; California Manufacturers and Technology Association; California Restaurant Association; California Retailers Association; Citizens Against Lawsuit Abuse; Construction Employers’ Association; Culver City Chamber of Commerce; Fresno Chamber of Commerce; Greater Bakersfield Chamber of Commerce; Greater Coachella Valley Chamber of Commerce; Greater Conejo Valley Chamber of Commerce; Murrieta Chamber of Commerce; National Federation of Independent Business; Official Police Garages of Los Angeles; Orange County Business Council; Palm Desert Area Chamber of Commerce; Rancho Cordova Chamber of Commerce; San Gabriel Valley Economic Partnership; Santa Maria Valley Chamber of Commerce; Simi Valley Chamber of Commerce; Torrance Chamber of Commerce; Valley Industry and Commerce Association; Western Growers Association; Wildomar Chamber of Commerce

HISTORY

Source: American Association of University Women; California Employment Lawyers Association; Equal Rights Advocates

Related Pending Legislation: AB 2282 (Eggman, 2018) would clarify that, while prior salary information cannot justify disparities in compensation, an employer may make a compensation decision based on an applicant’s current salary as long as any wage differential resulting from that compensation decision is justified by: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) a bona fide factor other than sex, such as education, training, or experience. AB 2282 is currently pending consideration before the Assembly Committee on Labor and Employment.

Prior Legislation:

AB 46 (Cooper, Ch. 776, Stats. 2017) clarified that the California Equal Pay Act applies to public as well as private sector employers.

AB 168 (Eggman, Ch. 688, Stats. 2017) prohibited an employer from seeking or relying on the salary history information of an applicant as a factor in determining whether to offer an applicant employment or what salary to offer an applicant. The bill also required an employer, upon reasonable request, to provide the pay scale for a position to an applicant.

AB 1209 (Gonzalez-Fletcher, 2017) would have required employers with 500 or more employees in California to provide the Secretary of State with specific information regarding gender wage differentials for exempt employees and board members every two years as part of their corporate filings. AB 1209 was vetoed by Governor Brown.

SB 1063 (Hall, Ch. 866, Stats. 2016) expanded the prohibitions in the California

Equal Pay Act regarding gender to include discrimination based on race or ethnicity.

AB 1676 (Campos, Ch. 856, Stats. 2016) required that prior salary shall not, by itself, justify any disparity in compensation.

SB 358 (Jackson, Ch. 546, Stats. 2015) addressed significant loopholes in the Equal Pay Act that had prevented meaningful enforcement by, among other things, requiring employers to justify any gender pay differential with a legitimate non-sex-based factor and prohibiting retaliation against employees for disclosing or discussing their wages with co-workers.

AB 160 (Grunsky et al; Ch. 804, Stats. 1949) enacted California’s original Equal Pay Act.

Prior Vote: Senate Labor and Industrial Relations Committee (Ayes 4, Noes 1)

**************

1. Patten, Racial, Gender Wage Gaps Persist in U.S. Despite Some Progress (July 1, 2016) Pew Research Center <http://www.pewresearch.org/fact-tank/2016/07/01/racial-gender-wage-gaps-persist-in-u-s-despite-some-progress/> (as of Apr. 9, 2018). ↑

2. Rao, Memorandum to Acting Equal Employment Opportunity Commission Chair Regarding EEO-1 Form; Review and Stay (Aug. 29, 2017) Executive Office of the President, Office of Management and Budget <https://www.reginfo.gov/public/jsp/Utilities/Review_and_Stay_Memo_for_EEOC.pdf> (as of Apr. 9, 2018). ↑

3. Fact Sheet: New Steps to Advance Equal Pay on the Seventh Anniversary of the Lilly Ledbetter Fair Pay Act (Jan. 29, 2016) The White House Office of the Press Secretary <https://obamawhitehouse.archives.gov/the-press-office/2016/01/29/fact-sheet-new-steps-advance-equal-pay-seventh-anniversary-lilly> (as of Apr. 9, 2018). ↑

4. See California Establishments by Size (Second Quarter 2017) California Employment Development Department <http://www.labormarketinfo.edd.ca.gov/file/indsize/Chart_SOB2017_2.pdf> (as of Apr. 9, 2018). ↑

5. Branding the Small Wonder: Delaware’s Dominance and the Market for Corporate Law, 42 U. Rich. L. Rev. 1129 ↑

6. Lam, One Tech Company Just Erased Its Gender Pay Gap (Nov. 10, 2015) The Atlantic <https://www.theatlantic.com/business/archive/2015/11/salesforce-equal-pay-gender-gap/415050/> (as of Apr. 3, 2018). ↑

7. Zillman, Salesforce CEO Marc Benioff: We're Erasing Our Gender Pay Gap—Again (Jan. 20, 2017) Forbes <http://fortune.com/2017/01/20/salesforce-marc-benioff-gender-pay-gap-davos/> (as of Apr. 3, 2018). ↑

SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS

Senator Richard Pan, Chair

2017 - 2018 Regular

Bill No: SB 1284 Hearing Date: April 11, 2018

Subject: Employers: annual report: pay data

KEY ISSUE

Should the Legislature require that employers with 100 or employees provide the Department of Industrial Relations, the Department of Fair Employment and Housing, the Secretary of State, and the Commission on the Status of Women and Girls with EEO-1 pay data, as specified?

ANALYSIS

Existing law:

1. Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
2. Explicitly prohibits an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
3. Requires every employer, employment agency, and labor organization subject to this subchapter shall: (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom as the Commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this title.
   (Federal Civil Rights Act of 1964, §709(c), Title VII)
4. Requires that, on or before March 31 of each year, every employer that is subject to Title VII of the Civil Rights Act of 1964, as amended, and that has 100 or more employees, shall file with the Commission or its delegate executed copies of Standard Form 100, as revised (otherwise known as "Employer Information Report EEO-1"), in conformity with the directions set forth in the form and accompanying instructions. (29 CFR §1602.7)

This bill:

1. Requires that, on or before September 30, 2019, and on or before September 30 each year thereafter, an employer that is incorporated under the laws of this state that has 100 or more employees shall submit a pay data report to the Department of Industrial Relations (DIR).
2. Requires that DIR makes the reports available to the Secretary of State, the Department of Fair Employment and Housing (DFEH), and the Commission on the Status of Women and Girls upon request.
3. Requires that the pay data report includes the number of employees, categorized by race, ethnicity, and sex that are within the pay bands used by the United States Bureau of Labor Statistics in the Occupation Employment Statistics survey.
4. Requires the pay data report includes the number of employees, categorized by race, ethnicity, and sex in each of the following job categories:
5. Executive or senior level officials and managers
6. First or mid level officials and managers
7. Professionals
8. Technicians
9. Sales workers
10. Administrative support workers
11. Craft workers
12. Operatives
13. Laborers and helpers
14. Service workers
15. Requires than an employer identify each employee’s total earnings as shown on the Internal Revenue Service Form W-2 for a 12-month period looking back from any pay period between July 1 and September 30 of each reporting year.
16. Requires that, for part-time and partial-year employment, the employer must include the total number of hours worked by each employee counted in each pay band over the last 12 months.
17. Requires that, for employers with multiple establishments, the employer must submit a report for each establishment and a consolidated report that includes all employees.
18. Requires that the pay data report includes a section for employers to provide clarifying remarks regarding any of the information provided.
19. Provides that, if an employer is required to file an Employer Information Report, otherwise known as the EEO-1 Report, with the United States Equal Employment Opportunity Commission or other federal agency, the employer may satisfy compliance with the requirements above by submitting the Employer Information Report. This bill requires that the Employer Information Report must include the same pay data required under this section.
20. Requires that, if an employer fails to comply, he or she is subject to a civil penalty of five hundred dollars ($500). This bill also requires that any civil penalties collected must be deposited into the Labor Enforcement and Compliance Fund, and upon appropriation by the Legislature, shall be allocated to the Division of Labor Standards Enforcement to enforce pay equity requirements.

COMMENTS

1. The Equal Employment Opportunity Commission (EEOC) and Form EEO-1:

The Equal Employment Opportunity Commission (EEOC) is a federal commission, which was created when President Johnson signed the Civil Rights Act of 1964. Since its creation, the EEOC has fought discrimination in all forms throughout America’s workplaces, including discrimination on the basis of race, color, religion, national origin, age, disability, and of either sex. The EEOC was an early pioneer in the fight for gender equality – as early as 1968, the EEOC was arguing in court that state laws which prevented women from certain occupations were illegal and preempted under federal law.

Starting in 1966, the EEOC required employers with 100 or more employees to submit EEO-1 forms, which showed the representation of men and women of different ethnic groups in nine different occupational classifications. According to the EEOC, the EEO-1 data was invaluable in enforcing anti-discrimination laws and conducting public hearings throughout the country to bring attention to the issue of discrimination in the workplace. The EEO-1 continues to be required by the EEOC, and continues to be used to enforce anti-discrimination laws throughout the country.

SB 1284 would make the EEO-1 (or a form with the same pay data current required by the EEO-1) available to DIR and DFEH to enforce anti-discrimination laws. SB 1284 also makes EEO-1 data available to the Secretary of State and the California Commission on Women and Girls.

2. Staff Comments:

EEO-1 Forms and Employers Incorporated in California

As currently drafted, SB 1284 is limited to firms that are incorporated in the State of California. Far more firms file EEO-1 forms and fall under California’s anti-discrimination laws than just firms incorporated in California. In order to fulfill the goals of this bill, the author may wish to consider:

1. On page 2, lines 7 and 8, striking “an employer that is incorporated under the laws of this state” and inserting “a private employer”.
2. On page 2, line 8, insert “in the State of California” between “employees” and “shall”.

EEO-1 Data Fields and SB 1284

As noted above, SB 1284 permits employers to satisfy compliance with submitting pay data to DIR by submitting their EEO-1 form to DIR, but only if the EEO-1 form contains the same pay data. While an EEO-1 weakened by a federal administration not committed to enforcing anti-discrimination laws would almost certainly be unacceptable to DIR, it is possible that a future federal administration may tweak the EEO-1 form for clarity or other reasons that could bring it outside of a strict reading of SB 1284 but still within the goals of the legislation.

Therefore, the author may wish to include the phrase “or substantially similar” on page 3, line 14, between “same” and “pay” in order to give DIR the ability to address marginal discrepancies between SB 1284 and future EEO-1 forms through regulations.

EEO-1, Confidentiality, and Anti-Discrimination Law Enforcement

As noted above, the anti-discrimination data from the EEO-1 form is profoundly useful in the enforcement of federal anti-discrimination laws, as well as in tracking employment trends in various industries. It is likely that this data will similar assist DIR and DFEH in their enforcement of anti-discrimination laws, including pay equity provisions created by SB 358 (Jackson), Chapter 546, Statutes of 2015. However, the EEOC is bound by federal law to treat EEO-1 data confidentially. SB 1284 is currently silent on that.

Additionally, SB 1284 makes EEO-1 data available to both the Secretary of State and the Commission on the Status of Women and Girls, yet neither entity is responsible for the direct enforcement of California’s anti-discrimination laws. Noting that the EEO-1 was designed as a data tool for enforcement, it is unclear how extending disaggregated data to the Secretary of State or the Commission on the Status of Women and Girls will assist ongoing enforcement efforts.

Therefore, the author may wish to consider the following amendments:

1. On page 2, strike lines 10-12 and insert:

“make the reports available to the Department of Fair Employment and Housing upon request. The department shall adopt regulations governing the access to the information described in this section by the Secretary of State, the Commission on the Status of Women and Girls, and researchers employed by a governmental agency. These regulations shall set forth the specific uses for which this information may be obtained and include provisions guaranteeing the confidentiality of individually identifiable information. Individually identifiable information obtained under this subdivision shall not be disclosed to the public. No individually identifiable information obtained by the Secretary of State, the Commission on the Status of Women and Girls, and researchers employed by a governmental agency pursuant to this subparagraph may be disclosed to any other person or entity, public or private, for a use other than that research project for which the information was obtained. Within a reasonable period of time after the research for which the information was obtained has been completed, the data collected shall be modified in a manner so that the subjects cannot be identified, directly or through identifiers linked to the subjects.

1. On page 3, between lines 23 and 24, insert the following:
2. Any information disclosed to the department pursuant to this section shall be considered confidential information and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).
3. It shall be unlawful for to make public in any manner whatever any information obtained by under this section prior to the institution of any proceeding involving such information. Anyone who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year. This subdivision shall in no way prevent the department from making available aggregated data to the public.

3. Proponent Arguments:

The California Consumer Attorneys of California support SB 1284, arguing:

“Wage disparities persist, resulting in an estimated $39 billion in lost wages for women each year in California. Pay discrimination is not just a women’s issue, but also harms families and the state’s economy. Nationwide, women overall make 80 cents to every dollar a man earns. Women working full‐time make a median 84 cents to every dollar earned by men, and for women of color, the gap is far worse. In 2016, Asian‐American women earned 72.5 cents, African‐American women 63 cents, Native American women 52.1 cents, and Latinas just 43 cents for every dollar earned by white, non‐Hispanic men.

SB 1284 will allow these state agencies to identify patterns of wage disparities and allow for targeted enforcement of equal pay laws, when appropriate. For these reasons, CAOC supports SB 1284.”

4. Opponent Arguments:

The California Chamber of Commerce opposes SB 1284, arguing:

“SB 1284 seeks to collect pay data according to job title, not according to whether the jobs are “substantially similar” for purposes of comparison… The term “substantially similar” was adopted in Labor Code Section 1197.5 to capture the intent of equal pay – meaning that employees who, with minor deviations, perform the same work according to a composite of skill, responsibility and effort, should be paid the same wage rate, unless a bona fide factor for the disparity exists.… Comparatively, two in-house attorneys may have the same job title, but may not actually have substantially similar job duties for purposes of comparison…

Aggregate data as proposed in SB 1284 fails to take these valid, non-discriminatory reasons into consideration and will create a false impression of wage discrimination where none exists. For example, there could be a disparity in the mean of salaries between two exempt employees because one employee has only worked for the employer for 6 months, whereas the other employee has been with the employer for 10 years....

SB 1284 requires employers to provide pay data regarding an employee’s total earnings as shown on the Internal Revenue Service Form W-2. However, a W-2 form does not take into account an employee’s own decisions and actions that can also create wage disparity that has nothing to do with discriminatory intent by the employer.

Finally, a wage disparity can also be created by an employee’s personal choices as to pre-tax payroll deductions. One employee may max out all pre-tax deductions for a 401(k), dependent child reimbursement, medical expense reimbursement, college savings, etc., while another employee may not request any such deductions be made to his or her paycheck. None of these employee choices and actions will be captured or reflected in SB 1284 to justify a potential wage disparity. Again, this omission on the report will create the false impression of wage discrimination, where none exists.”

5. Double Referral:

This bill has been double referred and, if approved by this committee, it will be sent to the Senate Judiciary Committee for hearing.

6. Prior Legislation:

SB 358 (Jackson), Chapter 546, Statutes of 2015, prohibits an employer from paying any of his or her employees at wage rates less than those paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility.

SUPPORT

The American Civil Liberties Union of California Center for Advocacy and Policy

Consumer Attorneys of California

Service Employees International Union

OPPOSITION

Agricultural Council of California

Associated General Contractors

Brea Chamber of Commerce

California Ambulance Association

California Association for Health Services at Home

California Chamber of Commerce

California Employment Law Council

California Hotel and Lodging Association

California Landscape Contractors Association

California League of Food Producers

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

Citizens Against Lawsuit Abuse

Construction Employers’ Association

Culver City Chamber of Commerce

Fresno Chamber of Commerce

Greater Bakersfield Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Murrieta Chamber of Commerce

National Federation of Independent Business

Official Police Garages of Los Angeles

Orange County Business Council

Palm Desert Area Chamber of Commerce

Rancho Cordova Chamber of Commerce

San Gabriel Valley Economic Partnership

Santa Maria Valley Chamber of Commerce

Simi Valley Chamber of Commerce

Torrance Chamber of Commerce

Valley Industry and Commerce Association

Western Growers Association

Wildomar Chamber of Commerce

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