Agenda Item 9A
February 3, 2015
Action
MEMORANDUM
January 30,2015
TO:
FROM:
County Council
Robert H. Drummer, Senior Legislative Attorney
~
rf'\
SUBJECT:
Action:
Bill 51-14, Discriminatory Employment
Disclosure - Prohibited
~~~:ices
Retaliation for Wage
I
Health and Human Services Committee recommendation (3-0):
enact the Bill as introduced.
Bill 51-14, Discriminatory Employment Practices - Retaliation for Wage Disclosure ­
Prohibited, sponsored by then Vice President Leventhal and Councilmembers Navarro, EIrich,
Riemer, Berliner, and Hucker, was introduced on October 28,2014. The Council held a public
hearing on December 2, 2014 and a Health and Human Services Committee worksession was held
on January 15.
Background
Women continue to earn less pay than men for similar work in the workplace. Although,
equal pay for equal work is mandated by Federal, State, and County law, an employee's ability to
assert a right to equal pay may be impeded by lack of information. In certain circumstances, an
employee may suffer retaliation by an employer for discussing the employee's salary or the salary
of another employee.
Bill 51-14 would prohibit an employer from retaliating against an employee for disclosing
the wages of the employee or another employee.
It
would also establish certain exceptions to the
prohibition against retaliation for wage disclosures. For example, an employer would still be
permitted to discipline a human resources employee who has access to the wages of other
employees as part of his or her position for disclosing this information if
it
was
not done for an
appropriate business purpose. Bill 51-14 would add this prohibition to the County employment
discrimination laws. The County Office of Human Rights would enforce this provision as it does
other employment discrimination laws.
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Public Hearing
Both speakers at the public hearing, James Stowe, Director ofthe County Office ofHuman
Rights, speaking on behalf ofthe Executive (©15) and Mike Mage, speaking for the Montgomery
County Chapter ofthe ACLU of Maryland
16) supported the Bill as an important step to ending
pay discrimination in Montgomery County.
January 15 HHS Worksession
James Stowe, Director of the County Office of Human Rights, and David Dise, Director of
the Department of General Services, represented the Executive Branch. The Committee reviewed
the Bill. James Stowe said that the Executive supported the Bill. The Committee recommended
(3-0) to enact the Bill as introduced.
Issues
1. Are there similar laws in other jurisdictions?
Although the Civil Rights Act of 1964, as amended, and the Equal Pay Act, both prohibit
wage discrimination on the basis of race, color, sex, national origin, and religion, these Federal
laws do not expressly prohibit retaliation against an employee who discloses wage information.
Recognizing this gap in Federal law, President Obama issued Executive Order 13665 on April 8,
2014, prohibiting a Federal contractor from retaliating against an employee who has "inquired
about, discussed, or disclosed the compensation ofthe employee or applicant or another employee
or applicant." President Obama directed the Department of Labor (DOL) to issue regulations
implementing this Executive Order.
On September 14,2014, DOL issued proposed regulations implementing this Executive
Order. DOL explained the purpose of this regulation as follows:
While research has found that many factors contribute to the wage gap, such as
occupational preferences, pay discrimination remains a significant problem,
especially for the working poor and the middle class. Among the possible
contributing factors is the prevalence of workplace prohibitions against discussing
compensation.
Strictures against revealing compensation can conceal
compensation disparities among employees, making it impossible for an employee
to know he or she is being underpaid compared to his or her peers. Ifcompensation
remains hidden, employees who are being paid less because of their gender or race
will remain unaware of the problem. In the absence of this knowledge, these
employees will be unable to exercise their rights by filing a discrimination
complaint pursuant to the Executive Order. (DOL Fact Sheet at ©17-19)
Vermont enacted a wage disclosure law in 2005 (©20-23) and New Jersey did the same in
2013 (©24-25).
2
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2. What is the fiscal and economic impact of Bill 51-14?
The OMB Fiscal and Economic Impact Statement concludes that the law can be enforced
by the Office of Human Rights with existing staff. Although the Finance Department was unable
to estimate the economic impact of the Bill, an additional tool to eliminate pay discrimination in
the County would
be
a positive development for the local economy, if successfuL
3. Should Bill 51-14 be enacted?
The substance of Bill 51-14 is similar to the prohibition against retaliation for wage
disclosure contained
in
Bil129-14. However, Bill 51-14 adds this prohibition to the County's anti­
discrimination laws and would therefore apply to any employer who employs one or more persons
in
the County. Bill 29-14 would limit the prohibition to an employer who obtains a service contract
with the County. If Bill 51-14 is enacted, it would cover all County service contractors.
1
Equal pay for equal work is universally accepted today as good policy. Bill 51-14 would
help eliminate unlawful wage discrimination by preventing an employer from enforcing a wage
secrecy rule in the workplace. If an employee has access
to
the wages paid to other employees, it
will be much more difficult for an employer to practice unlawful wage discrimination. While Bill
51-14 is unlikely to eliminate unlawful wage discrimination in the County, it is likely to help.
Committee recommendation (3-0): enact Bill 51-14 as introduced.
This packet contains:
Bill 51-14
Legislative Request Report
Fiscal and Economic Impact Statement
Testimony of James Stowe
Testimony of Mike Mage
DOL Fact Sheet
Summary of Vermont Workplace Laws
Summary ofNew Jersey Law
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Bill
29-14 would also add reporting requirements for County service contractors.
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Bill No.
51-14
Conceming: Discriminatory Employment
Practices - Retaliation for Wage
Disclosure - Prohibited
Revised: January 15, 2015 Draft No.
L
Introduced:
October 28. 2014
Expires:
April 28, 2016
Enacted: ___________________
Executive: ______________
Effective: ______________
Sunset Date:
--'N~o~n:.::::e:...__
_______
ChI _ _, Laws of Mont Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Vice President Leventhal and Councilmernbers Navarro, EIrich, Riemer, Berliner, and Hucker
AN
ACT to:
(1)
(2)
(3)
prohibit an employer from retaliating against an employee for certain disclosures of
wages ofthe employee or another employee;
establishing certain exceptions
to
the prohibition against retaliation for wage
disclosures; and
generally amending the law concerning discriminatory employment practices.
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Section 27-19
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets))
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original hill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL No. 51-14
1
Sec.
1.
Section 27-19 is amended as follows:
27-19. Discriminatory employment practices.
2
3
4
5
6
(a)
A person must not because of the race, color, religious creed, ancestry,
national origin, age, sex, marital status, sexual orientation, gender
identity, family responsibilities, or genetic status of any individual or
disability of a qualified individual, or because of any reason that would
not have been asserted but for the race, color, religious creed, ancestry,
national origin, age, sex, marital status, disability, sexual orientation,
gender identity, family responsibilities, or genetic status:
(1) For an employer:
(A) fail or refuse to hire, fail to accept the servIces of,
discharge any individual, or otherwise discriminate against
any individual with respect to compensation, terms,
conditions, or privileges of employment; or
(B) limit, segregate, or classifY employees in any way that
would deprive or tend to affect adversely any individual's
employment opportunities or status as an employee;
(2) For an employment agency: fail or refuse to refer for
employment, assign job classifications to, classify or refer for
employment, or otherwise discriminate against, any individual;
(3)
For a labor organization:
(A) exclude or expel from its membership, or otherwise
discriminate against any individual;
(B) limit, segregate, or classifY its membership or classifY, or
fail or refuse to refer for employment, any individual in
any way that would deprive or tend to deprive any
individual of equal employment opportunities, or affect
-2­
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25
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BILL
No. 51-14
28
adversely the individual's employment opportunities or
status as an employee or as an applicant for employment;
or
(C)
cause or attempt to cause an employer to discriminate
against an individual in violation ofthis section; or
29
30
31
32
33
34
(4)
For an employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training programs:
discriminate against any individual in admission to,
employment
ill,
35
36
37
38
39
40
41
42
43
44
45
46
or
any
program
established
to
provide
apprenticeship or other training.
(b)
The term "discriminate" in subsection (a) includes excluding, or
otherwise denying, equal job opportunity or benefits to, a qualified
individual because of the known disability of an individual with whom
the qualified individual is known to have a relationship or association.
(c)
A person must not:
(1)
retaliate against any person for:
(A)
lawfully opposing any discriminatory practice prohibited
under this division; or
(B)
filing a complaint, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing
under this division;
47
48
49
50
(2)
assist in, compel, or coerce any discriminatory practice prohibited
under this division;
51
52
(3)
obstruct or prevent enforcement or compliance with this division;
or
53
54
(4)
attempt directly or indirectly to commit any discriminatory
practice prohibited under this division.
-3­
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BILL
No. 51-14
55
56
57
58
(d)
(1)
Except as provided in paragraph 2, a person must not print,
publish, or cause to be printed or published, any notice or
advertisement
indicating
any
preference,
limitation,
or
specification based on race, color, religious creed, ancestry,
national origin, age, sex, marital status, disability, sexual
orientation, gender identity, family responsibilities, or genetic
status relating to:
(A)
59
60
61
62
63
64
65
employment by an employer;
membership in or any classification or referral for
employment by a labor organization; or
(B)
(C)
any classification or referral for employment by an
employment agency_
66
67
68
(2)
'This subsection does not prohibit a notice or advertisement from
indicating a preference, limitation, or specification that is a bona
fide occupational qualification for employment reasonably
necessary to the normal operation of the particular business or
enterprise.
69
70
71
72
73
(e)
Notwithstanding any other provision of this division, it
unlawful employment practice:
(1)
IS
not an
74
75
76
77
for an employer to hire and employ employees, for an
employment agency to classify or refer for employment any
individual, for a labor organization to classify its membership or
to classify or refer for employment any individual, or for an
employer,
labor organization or joint labor-management
78
79
committee controlling apprenticeship or other training or
retraining programs, to admit or employ any individual in any
program, on the basis of race, color, religious creed, age, sex,
-4 - .
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BILL No. 51-14
82
83
marital status, national ongm, ancestry, disability, sexual
orientation, gender identity, family responsibilities, or genetic.
status based on a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise;
(2)
for a religious corporation, association, or society to hire and
employ employees of a particular religion; or
(3)
for an employer to deny employment on the basis of religious
creed if the observance, practice, or belief cannot be reasonably
accommodated by an employer without causing undue hardship
on the conduct ofthe employer's business.
(f)
Notwithstanding any other provision of this division, it is not unlawful
for any employer to observe the terms of a bona fide seniority system or
any bona fide employee benefit plan, such as a retirement, pension, or
insurance plan, that is not a subterfuge to evade the provisions and
purposes of this division, except that an employee benefit plan must not
excuse an employer's failure to hire any qualified person.
(g)
84
85
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90
91
92
93
94
95
96
97
98
99
100
ill
[Reserved] Except as provided in paragraph
m
an
employer
must not discharge or in
any
other manner discriminate or
retaliate against an employee because the employee:
101
102
103
fA}
has inquired about, discussed, or disclosed the wages of
the employee or another employee; or
104
105
106
all
ill
asserts any right under this subsection.
The prohibition against retaliation for wage disclosure under
paragraph
ill
does not
mm.lY
to an employee who has access to
wage information of other employees or applicants as part of
the employee's essential job functions and discloses the wages
-5­
107
108
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BILL No. 51-14
109
110
111
112
113
114
of other employees or applicants to individuals who do not
otherwise have access to the information, unless the disclosure
is in response to:
CA)
(ID
~
formal complaint or charge;
in furtherance of an investigation, proceeding, hearing, or
action, including an investigation conducted
Qy
the
contractor; or
115
116
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118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
(Q
is consistent with the contractor's legal duty to furnish
information.
(h)
Notwithstanding any other provision of this division, a physician or
other licensed medical professional may use genetic information about,
and consider the genetic status of, an employee to evaluate whether a
disease, medical condition, or disability that is currently manifest is
preventing the employee from performing the essential functions of the
position if:
(1)
the genetic information is provided to the employee in writing as
soon as the information is available;
(2)
the genetic information is not disclosed to any other person
(including the employer) without the employee's voluntary,
written consent;
(3)
the genetic information
IS
maintained as a medical record
separate from the employee's employment records; and
(4)
no other law prohibits:
(A)
the medical professional from collecting or using the
genetic information, or
(B)
the employer from considering the disease or disability, or
the employee's genetic status.
-6­
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BILL
No.
51-14
136
137
138
139
(i)
This division does not prohibit genetic monitoring of biological effects
of toxic substances in the workplace if:
(1)
the employee has provided prior voluntary, infonned consent in
writing to participate in the monitoring;
(2)
the employee receives the results of the monitoring, including
both aggregate infonnation and any information regarding the
specific employee, as soon as results are available;
(3)
the monitoring complies with all other laws, such as regulations
protecting human subjects in research; and
(4)
the employer (other than a licensed medical professional involved
in the genetic m()nitoring) receives results of the monitoring only
in aggregate terms that do not disclose the identity of any specific
employee.
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
G)
An
employer must not require an employee to obtain or reveal any
genetic infonnation that the employer is prohibited from considering
under this division.
(k)
An
employer may reqUire an employee to adhere to reasonable
workplace appearance, grooming, and dress standards that are
nondiscriminatory and not precluded by any provision of state or federal
law. However, an employer must allow an employee to appear, groom,
and dress consistent with the employer's gender identity.
Approved:
156
157
158
George Leventhal, President, County Council
Date
-7­
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LEGISLATIVE REQUEST REPORT
Bill 51-14
Discriminatory Employment Practices
-
Retaliation/or Wage Disclosure
-
Prohibited
DESCRIPTION:
Bill 51-14 would prohibit an employer from retaliating against an
employee for certain disclosures of wages of the employee or another
employee.
It
would also establish certain exceptions to the
prohibition against retaliation for wage disclosures.
Women continue to earn less pay than men for similar work.
Although, equal pay for equal work is mandated by Federal, State,
and County law, an employee's ability to assert a right to equal pay
may be impeded by lack of infonnation. In certain circumstances, an
employee may suffer retaliation by an employer for discussing the
employee's salary or the salary of another employee.
The goal of this Bill is to promote equal pay for equal work.
County Attorney, Human Rights Office
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney
To
be
researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Compensatory damages and equitable relief.
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ROCKVILLE} MARYI..A.t'lD
MEMORANDUM
January 5, 2015
TO:
George Leventhal, President, County Council
Jennifer
A.
Hughes, Director,
.c:~gement
and Budget
Joseph F. Beach. Director, Dep<U., Finance
FEIS for Bi1I51-14, Discriminatory Emp]oymentPractices - Retaliation for
Wage Disclosure - Prohibited
FROM:
SUBJECT:
Please find attached the fiscal and economic impact statements for the above­
referenced legislation.
JAH:fz
cc: Bonnie Kirkland., Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy Nunni, Special Assistant to the County Executive
Patrick Lacefield, Director. Public lnformation Office
Joseph F. Beach, Director, Department of Finance
James Stowe, Director, Office of Human Rights
David Platt, Department of Finance
Phil Weeda, Office of Management and Budget
Helen Vallone, Office of Management and Budget
Alex Espinosa, Office of Management and Budget
Naeem Mia, Office of Management and Budget
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Fiscal Impact Statement
Council Bill 51-14. Discriminatory Employment Practices-Retaliation for Wage Disclosure­
Prohibited
1. Legislative Summary.
a
prohibits
an
employer from retaliating against an employee
for
disclosing the
wages
of
that employee
or
any other employee;
b. establishes exceptions to this general prohibition of retaliation against an
employee for disclosure of employee wages; and
c.
generally amends the law concerning discriminatory employment practices.
2.
An estimate of changes in County revenues and expenditures regardless of whether the
revenues or expenditures are assumed in
the
recommended
or
approved budget. Includes
source of information, assumptions, and methodologies used.
In most instances
where similar
legislation
is
in place in cities, c·ounties and
states,
significant data does not exist to estimate what the experience may be
in
Montgomery
County. MallY of these laws have not had many complaints filed. The state of
New
Jersey
enacted their "Wage Disclosure" statue in 2013 and since that time has received 1-2
comp laints. Similarly in the state
of
Vermont which enacted its first wage disclosure
statue in 2005 and strengthened it in 2013 have had minimal complaint activity_
The research suggests that Montgomery County may see
a
minimal number of complaints
filed once the law has been established.
If
this
proves true, then the number of cases
could
be
processed by existing
staff
and would present no major expenditures or adverse
impact on current services and staff.
3.
Revenue
and
expenditure estimates covering at least the next
6 fiscal years.
Expenditures over the next
6
fiscal years are estimated to
be
flat and consistent v..ith
current
budget
projections.
There may
he some
minimum cost required for educational
and outreach materials which would be limited
to
the first year
of
the
bilI,
and could
be
absorbed within current funding levels.
4.
An actuariaL analysis through the entire amortization period for each bill that would affect
retiree pension or group insurance costs.
Not applicable
5.
An estimate
of
expenditures related
to
County's information technology
(IT)
systems~
including Enterprise Resource Planning
(ERP)
systems.
Not applicable
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6. Later actions that may affect future revenue and expenditures if the bill authorizes future
spending.
Not applicable
7. An estimate ofU1e staff time needed to implement the bill.
Based on the current data available from other agencies throughout the region, the Office
of Human Rights (HRC)
will
utilize existing staff resources to absorb the additional
workload at least in the short term. Further knowledge is necessary upon implementation
of the law
in
order to evaluate if additional staff time is needed.
8. An explanation of how the addition of new
staff
responsibilities would affect other duties.
See answer to number 2.
9. All estimate of costs when an additional appropriation is needed.
Not applicable
, 10. A description of
any
variable that could affect revenue and cost estimates.
Varial')1es that could aftectcost estimates include the cost and scope of community
education and outreach alld possible increase in staff which cannot be estimated at this
time. The number ofenforcement actions in any given year is also subject to ""ide
variability.
11. Ranges of revenue or expenditures that
are
uncertain or difficult to project.
Although the bill allows for damages and other equitable relief consistent with the
prescribed remedies provided in the code, actual relief or revenue cannot be estimated at
this time. Furthermore, not all enforcement activity
results in complaints.
In
addition
the
cost of any needed educational outreach cannot be estimated with
any
accuracy at this
time.
HRe cannot estimate with. certainty the number of enforcement actions performed and
actual cases filed in a given year.
12. If a bill is likely to have no fiscal impact, why that is the case.
See answer to number 2.
13. Other fiscal
impact~
or comments.
Not applicable
@)
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14. The following contributed to and concurred
with
this analysis:
Jim Stowe. Director, Office of Human Rights
Helen
P. Vallone.
Senior
Management and Budget
Specialist, Office of
Management
al1d
Budget
.. Hughes; Directo
ffice
of
Management
and Budget
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Economic Impact Statement
Bill 51-14,
Discriminatory Emp)oyment Practices - Retaliation for Wage Disclosure
-
Prohibited
Background:
This legislation would prohibit an employer from retaliating against an employee for
certain disclosures of wages ofthe employee or another emp.loyee. Bill 51-14 would
establish certain exceptions to the prohibition against retaliation for wage disclosure.
The exception under Bill
:51-14
is that the prohibition against retaliation does oot apply to
an employee \vhohas access to wage information of other employees or applicants as part
of the employee's essential job functions. The exception also applies to an employee
who discloses the wages ofother employees or applicants
to
individuals who do not
otherwise have access to the information unless the disclosure is in response to: 1) a
formal complaint or charge; 2) as part .ofan ongoing investigation, proceeding, hearing.
or action, including an investigation conducted by the contractor, or 3) is consistent
'with
the contractor's legal duty to
furnish
information.
1. Tbe sou.rces of imonnation, assumptions, and methodologies used.
The sources of information are the Montgomery C-Ounty Office of Human Rights;
Institute for Women's Policy Research (IWPR); and Office ofFederal Contract
Compliance Programs (OFCCP),
u.s
Department of Labor.
According to an IWPRlRockefellt.'I' survey conducted in
2011,
about one-half of all
workers surveyed (51 percent ofwomen and 47 percent of men) "report that the
discussion of wage and salary information is either discouraged or prohibited and/or
could lead
to
punishment." According
to
survey respondents, private sector
employers are more likely to
''try
to control access to this information: 62 percent of
women and
60
percent of men working for private employers report
that
wage and
salary information is secret.
~~
According
to
the lWPR report dated January
2014,
"while th.ere may be no direct link between pay secrecy and pay
inequality,
pay
secrecy appears
to
contribute to
the gender gap in earnings."
On September
15,2014,
OFCCP announced a Notice of Proposed
Rulemaking
(NPRM) to prohibit
pay
secrecy policies and actions by covered Federal contractors
and subcontractors. The NPRM seeks to implement Executive Order (EO) 13665
'~by
proposing to prohibit Federal contractors from discharging or discriminating in any
other way against employees or applicants who inquire about, discuss, or disclose
their O\vn compensation of
the
compensation of another employee or applicant." This
proposed rule «seeks to level the playing field by increasing transparency and giving
these workers a much needed tool to fight pay discrimination." According to the
OFCCP Fact Sheet, research has found that many factors contribute to the wage gap
between men and w0I!1en and among those possible factors is the prevalence of
workplace prohibitions against discussing compensation.
Page 1 of2
@
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Economic Impact Statement
BiIl5l·14, Discriminatory Employment Practiees - Retaliation for Wage Disclbsure
- Prohibited
\Vhile EO 13665 addresses prohibition exhibited by Federal contractors, Bill 51-14
extends this prohibition to all employers
in
Montgomery County.
2. A
description of any variable that could affect tbe economic impact estimates.
The variable that could affect the economic impact is the prohibition could create a
level playing field among employees in
the
private sector and thereby
reducing
pay
discrimination. Such a reduction in pay discrimination could result
in
higher earnings
amount
~'}'eCific
employees. However, without specific data'on the difference
in
pay
among workers,
it
is difficult to quantify the economic benefit.
3. The Bill's positive or negative effect,
if
any on employment, spending, saving,
investment, incomes, and property values
in
the County.·
By prohibiting retaliation against an employee for certain disclosures of wages, Bill
51~
14 could have a positive economic impact employees' wages by reducing the
wage gap.
4.
If
a Bill is likely to have no economic impact, why
is
that the ease?
Bill 51-14 could have an economic impact but
~ithout
specific
data,
it is uncertain
the value of such an impact on employees' wages.
5.
The fonowing contributed
to
or
concurred
with this
analysis:
David
Platt
and Rob
Hagedoom, Finance; James Stowe, Director, Office oflJuman
Rights;
and Helen P.
Vallone,OMB.
·ch, Director
ment of Finance
Page2of2
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OFFICE OF HUMAN RIGHTS
Isiah Leggett
COIlI1(V
Executive
James
L.
Stowe
Director
TESTIMONY ON BEHALF OF THE COUNTY EXECUTIVE ISIAH LEGGETT
ON BILL 51-14, DISCRIMINATORY EMPLOYMENT PRACTICES­
RETALIATION FOR WAGE DISCLOSURE-PROIDBITED
December
2, 2014
Good afternoon. My name is Jim Stowe, Director of the Montgomery County
Office of Human Rights, and I am here on behalf of County Executive Isiah Leggett to
urge the Council's favorable consideration of Bill 51-14 which would prohibit, with
.certain exceptions, employers from retaliating against employees for certain disclosures
of wages of the employee or other employees.
Montgomery County is home to a diverse, vibrant, majority-minority popUlation.
The County's employer and employee base reflects this diversity. The County has always
been a leader among local governments in promulgating responsible and inclusive laws
as it relates to the protections provided in our Civil Rights Code. The County has
aggressively enforced such laws, including those laws that prohibit discriminatory
employment practices with respect to compensation. Laws that pertain to Minimum
Wage, the Living and Prevailing Wage, Minority, Female and Disabled-owned Business
Programs all focus on making available fair and equal access to the economic vitality of
our county and pay equity for workers. The provisions of Bill 51-14 are modeled after the
provisions ofBill29-14, Contracts and Procurement Wage Requirements- Reporting,
introduced on behalf of County Executive Leggett in May of this year. That Bill requires
County contractors to report certain wage infonnation and similarly prohibits contractors
from retaliating against employees for certain disclosures ofwages of the employee or
other employees.
Under current law, the Office ofHurnan Rights has enforcement authority to
investigate complaints of alleged discriminatory employment practices which may be a
violation of Chapter 27, Human Rights and Civil Liberties. This bill would add to the
current law the additional responsibility to the Office of Human Rights to investigate
complaints and carry out other enforcement measures codified by this legislation.
County Executive Leggett believes that women and minority employees who work in
Montgomery County deserve to make the same pay as their colleagues, and passing this
Bill would continue the County's efforts toward pay equity. Thank you for the
opportunity to testify in support of Bill 51-14.
21 Maryland Avenue, Suite 330 • Rockville, Maryland 20850 • 240-777-8450 • 240-777-8480
TTY·
240-777-8460 FAX
w\vw.montgomerycountymd.gov
montgomerycountymd.gov/311
240-773-3556 ITY
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AMERICAN CIVIL LIBERTIES UNION
Montgomery County Chapter, ACLU
of
MD.
Mike Mage and Darian Unger, Co-Chairs.
DECEMBER 2, 2014
WE SUPPORT MONTGOMERY COUNTY BILL 51-14 DISCRIMINATORY
EMPLOYMENT PRACTICES -
RETALIA
TION FOR WAGE DISCLOSURE
- PROHIBITED.
Testimony of Mike Mage, Co-Chair, Montgomery County Chapter, ACLU of Maryland
301-402-5537W, 301-229-0470H, 240-899-3312C,
!!lagem62@hotjllai1.com
Good Afternoon. Thank you for holding this important hearing on bill 51-14.
In
2009, the Supreme Court of the United States recognized in
Crawfordv. Metro. Gov'tofNashville
&
Davidson County,
that "fear of retaliation is the leading reason why people stay silent instead of
voicing their concerns about bias and discrimination".
Workers often don't know about pay discrimination because employers have rules that punish
employees for sharing wage information with their colleagues. Allowing workers to discuss their
salaries without fear for their jobs, will help them learn if they are being treated equally.
Unfortunately, pay discrimination is still a fact of life. For example, women still earn, on average,
only 77 cents for every dollar earned by a man. It's even more dismal for women of color- in 2012,
African American women only earned about 64 cents and Latinas only 54 cents for each dollar earned
by white men.
Moreover, nearly half of all workers are either· forbidden or strongly discouraged from discussing
their pay with colleagues. Pay secrecy means that there is no way for many women to even know
they recieve less than their male co-workers. This injustice is especially troubling in today's difficult
economy, where 40% of women are acting as primary breadwinners, and 65% are breadwinners or
co-breadwinners. Pay equity is crucial, not only to families' economic security, but also to the
nation's economic recovery.
There is some progress. President Obama has issued an executive order that protects the 26 million
workers employed by federal contractors, when they
try
to find out if they are being paid fairly.
Bil151-14 takes an important step toward ending pay discrimination in Montgomery County, by
forbidding retaliation against workers who ask about their employers' wage practices or disclose their
own wages. It continues Montgomery County's long tradition ofprotecting civil rights and civil
liberties. We urge it's prompt passage.
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U.S. DEPARTMENT OF lABOR
FACT SHEET
Notice of Proposed Rulemaking
Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions
Background
On September 15, 2014, the U.S. Department of Labor's Office of Federal Contract Compliance
Programs (OFCCP) announced a Notice of Proposed Rulemaking (NPRM) to prohibit pay
secrecy policies and actions by covered Federal contractors and subcontractors.
This NPRM seeks to implement Executive Order (EO) 13665, signed by President Obama on
April 8, 2014, by proposing to prohibit Federal contractors from discharging or discriminating in
any other way against employees or applicants who inquire about, discuss, or disclose their own
compensation or the compensation of another employee or applicant. Enabling the more than 28
million employees of Federal contractors and subcontractors to discuss their compensation
without fear of adverse action can contribute to reducing pay discrimination and ensuring that
qualified and productive employees receive fair compensation. This proposed rule, like the
Paycheck Fairness Act, seeks to level the playing field by increasing transparency and giving
these workers a much needed tool to fight pay discrimination.
The rule will be published in the Sept. 17 issue of the
Federal Register
and open for public
comment for a period of90 days, thereafter. To read and learn more about the proposed rule,
please visit www.doLgov/ofccp/PayTransparencyNPRM.
Need for the Proposed Rule
Despite the existence of laws protecting workers from gender-based compensation
discrimination for more than five decades, a pay gap between men and women persists today.
Consider that:
.
• A comparison of average annual wage
data
reveals that women make 77 cents for every
dollar that men make.
1
Recent data on average weekly wages from the Bureau of Labor
Statistics (BLS) show a similar gap, with women making 82 cents for every dollar that
men make.
2
The gap in wages is even greater for some women of color.
Bureau of the Census, Income, Poverty and Health Insurance Coverage in the United States, Current
Population Reports 2011 (Sept. 2012), available at http://www.census.gov/prodl2012pubs/p60-243.pdf. Calculation
of the pay gap using average weekly wages has the advantage of accounting for differences in hours worked, which
is not captured in calculations using annual wage data. However, calculations using weekly wage data do not
account for forms ofcompensation other
than
those paid as weekly wages, unlike annual wage calculations. While
neither method is perfect, analyses that account for factors like occupation and qualifications further support the
existence of a significant gender-based pay disparity.
Bureau of Labor Statistics,
u.s.
Department of Labor, Current Population Survey, Labor Force Statistics from
Current Population Survey, Median Weekly Earnings of Full-Time Wage and Salary Workers by Selected
Characteristics, available at http://www.bls.gov/cps/cpsaat37.htm; Updated quarterly CPS earnings figures by
2
1
U.S.
@
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• BLS data show that African American women earn 68 cents and Latina women earn 59
cents for every dollar earned by a non-Hispanic white man.
3
Census data show similar
disparities, with African American women making 64 cents, Latina women making 56
cents, and Asian women making 86 cents per dollar earned by a non-Hispanic white
man.
4
While research has found that many factors contribute to the wage gap, such as occupational
preferences, pay discrimination remains a significant problem, especially for the working poor
and the middle class. Among the possible contributing factors is the prevalence of workplace
prohibitions against discussing compensation. Strictures against revealing compensation can
conceal compensation disparities among employees, making it impossible for an employee to
know he or she is being underpaid compared to his or her peers. If compensation remains
hidden, employees who are being paid less because of their gender or race will remain unaware
of the problem.
In
the absence of this knowledge, these employees will be unable to exercise
their rights by filing a discrimination complaint pursuant to the Executive Order.
Highlights of the Proposed Rule
The NPRM proposes the following changes to the existing regulations:
• Amends the Equal Opportunity Clause of Executive Order 11246 that requires certain
information be included in Federal contracts and subcontracts. The amendment mandates
inclusion of the requirement that Federal contractors and subcontractors refrain from
discharging, or otherwise discriminating against, employees or applicants who inquire
about, discuss, or disclose their compensation or the compensation of other employees or
applicants.
An
exception exists where the employee or applicant makes the disclosure
based on information obtained in the course of performing his or her essential job
functions.
• Requires that Federal contractors incorporate the nondiscrimination provision into their
existing employee manuals or handbooks, and disseminate the nondiscrimination
provision to employees and to job applicants.
demographics by quarter for sex through the end of2013, available at
http://www.bls.gov/news.release/wkyeng.tOI.htm.
3
Bureau of Labor Statistics, U.S. Department of Labor, Current Population Survey, Labor Force Statistics from
Current Population Survey, available at http://www.bls.gov/cps/earnings.htm#demographics.
42012 Person Income Table PINC-lO. Wage and Salary Workers-People i5 Years Old
and
Over, by Total Wage
and Salary Income in 2012, Work Experience in 2012, Race, Hispanic Origin, and Sex, available at
https:llwww.census.gov/hhes/www/cpstables/032013/perinclpinclOOOO.htm (comparison ofmedian wage for
workers working 50 or more weeks).
2
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• Defines key words or terms such as compensation, compensation information, and
essential job functions as used in the Executive Order.
• Provides employers with two defenses to an allegation of discrimination: one based on
enforcing rules against disruptive behavior; and the other based on the essential functions
ofthe person's job.
For more information, please go to www.dol.gov/ofccp.
3
19
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REXlBLE
WORKING
ARRANGEMENIS
As
of January 2014,
Vermont employees have the
right to
request flexible working
arrangements
and employers
must
discuss and consider these
requests.
The new law applies to all Vermont employees and
gives them the
right to request
a flexible working
arrangement for any reason and requires employers
to discuss and consider such requests at least twice
per calendar year.
The law does not dictate which requests must be
granted, but instead
provides a framework for
a meaningful workplace dialogue.
Importantly,
the law also protects employees who seek such
arrangements from retaliation or discrimination.
The law defines "flexible working arrangement"
as
"Intermediate or long-term changes In the
employee'S regular working arrangements,
including changes in the number of days or hours
WOrked, changes In the time the employee arrives
at or departs from work, work from home, or
Job­
sharing."
This new law doesn't apply to other forms of leave that
may already be required by Vermont or federal law,
such as parental or family leave, accommodations for
disabilities, or workers' compensation injuries. The law
does not diminish rights set forth in labor contracts.
It also doesn't apply to routine shift scheduling or
vacation requests.
Employees may make the request verbally or in writing.
The request should be as specifiC as possible, and
employees should be prepared to discuss how the
arrangement would still allow the employer to meet
business needs.
The employer must then discuss the request in good
faith. The discussion can take place in person or over
the telephone. During the discussion, either party may
propose alternatives to the arrangement requested.
The employer has the duty to consider in good
faith
whether the requested arrangement could
be granted In a manner that Is not Inconsistent
with
Its
business operations or
Its
legal or
contractual obligations.
The law identifies several
factors the employer may consider: (1) the burden of
additional costs;
(2)
the effect on aggregate employee
morale;
(3)
the effect on ability to meet consumer
demand;
(4)
an inability to reorganize work among
existing staff;
(5)
an inability to recruit additional
staff;
(6)
a detrimental impact on business quality
or performance;
(7)
an insufficiency of work during
periods the employee proposes to work; and
(8)
planned structural changes to the business.
The law
requires employers to notify employees
of their decision.
If the request was submitted in
writing, the employer must state any complete or
partial denial of the request In writing.
The law does not change existing legal rights of
employers and employees to create, terminate, or
modify flexible working arrangements. Instead it
provides the framework for meaningful dialogue
about whether such arrangements would work for
both parties.
~.VERMONT
Workplace Laws - Workers
10/14
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EQUAL
PAY
Vermont employees
have
the
rlllht
to
equal pay
for
equal
work.
In 2002 Vermont adopted the Equal Pay Act, and
strengthened its provisions in 2013. The law applies to
any employer, employment agency, labor organization,
or any person hiring Vermont employees.
The law says It Is Illegal
to
pay wages
to
employees
of
one sex at a rate less than the rate paid to
employees
of
the other sex for equal work that
requires equal, but not Identical, skill, effort, and
responsibility, and Is performed under similar
working conditions.
Employees
,gm
be paid different wages when the
difference is a result of: (1) a seniority system; (2)
a merit system;
(3)
a system in which earnings are
based on quantity or quality of production; or
(4)
a
bona fide factor other than sex, provided: (a) it does not
perpetuate a sex-based differential in compensation;
(b) it Is job related with respect to the position in
question; and (c) is based upon a legitimate business
consideration.
WAlE
DISCLOSURE
disclose their own wages and inquire about and
discuss others' wages without fear of discipline,
discharge, or retallaUon.
Employers cannot require employees to sign
a wage non-cllsclosure agreement or otherwise
prevent them from disclosing their own wages,
Vermont employees have
the
rillht
to
disclose and
inquiring about others' wages, or discussing wages in
discuss
their
walles
and inquire
about
and
discuss general.
the walles of others.
Unless otherwise required by law, Human Resources
In 2005 Vermont adopted a Wage Disclosure Law and
managers may be prohibited from disclosing the wages
strengthened it in 2013. The law says employees can of other employees.
If You Suspect
Pay
Discrimination
Talk to Your Employer. Check your employee handbook
for procedures for filing a grievance or resolving a
problem. Put your complaint in writing.
What To
Do
DecIde Whether to File a Charge. The Vermont
Attorney General has the authority to investigate
complaints of wage discrimination and to seek civil
. Find Out How Others Have Been Treated at Your
Workplace. Share information with co-workers on ways penalties and damages from employers who violate the
to improve pay, benefits, promotion opportunities, work equal pay law. The Human Rights Commission has the
schedules and other working conditions.
same authority for state government employees. See
Resources section for more information.
Write Down What Happened. Were you offered a
lower starting salary, or did you discover that you are
being paid less than a co-worker? Were you disciplined
or discharged because you disclosed your wage to a co­
worker?
~.vERMONT
VERMONT COMMISSION ON WOMEH
Workplace Laws - Workers
10/14
@)
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FAIR TREA1MENT
FOR PREGNANr
WORKERS
Pregnant employees
have
'ederal
and
state
protectIons.
of her Job.
Both laws provide that if a woman is
temporarily unable to perform her job due to a medical
condition related
to
pregnancy or childbirth, the
employer must make accommodations for her If
It
has done so with other temporarily disabled
employe...
For example, the employer may have to
provide light duty, alternative assignments, disability
leave, or unpaid leave to pregnant employees if it does
so for other temporarily disabled employees.
Under the FMLA and PFLA,
covered employers
must provide 12 weeks of unpaid leave and
Protections for pregnant workers may arise under
Job protection
for certain workers for pregnancy,
several federal laws, including the Pregnancy
the birth or adoption of a child, and some medical
Discrimination Act (PDA), the Family and Medical Leave appointments.
Act (FMLA), and in some instances, the Americans with
Disabilities Act (ADA). Protections may also arise under Finally, although pregnancy itself is not a covered
"disability" within the meaning of the ADA or FEPA,
state Jaws, including Vermont's Parental and Family
certain pregnancy.,elated conditions, such as
Leave Act (PFLA) and Vermont's Fair Employment
gestational diabetes or preeclampsia, may be
Practices Act (FEPA).
so serious that they are considered protected
Both the PDA and FEPA
forbid employers from
disabilities.
In such cases, employees cannot
acting upon mere assumptions about what
face discrimination for having such disabilities,
types
of
Jobs a pregnant woman Is capable of
and employers may have to provide a reasonable
performing. In addition, they cannot refuse to
accommodation (such as leave or modifications
hire a pregnant woman and cannot fire a pregnant
that enable an employee to perform her Job) for the
woman who is able
to
perform the major functions
disabilities, absent undue hardship for the business .
Vermont
employees now
have
stronger protections
agaInst employer
dISciplIne, dIscharge,
or
retaliatIon
when exercisIng
these
'air
employment
and leave
rlgIrts.
Employees may not face retaliation for exercising, or
attempting to exercise, their rights (such as disclosing
Vermont
employees have
the
right to request tIme
their wages or asking for statutory leave) opposing
unlawful employment practices, lodging complaints of
and
space to eKPress breast
milk
at work.
unlawful practices, or cooperating in investigations of
Both Vermont state labor law and the federal Fair Labor
such complaints. In addition, employees may not face
Standards Act (FLSA) provide protections for working
retaliation merely because the employer believes they
mothers and their nursing children,
including time,
are about to engage in any of these legally-protected
either paid or unpaid, throughout the day for the
activities.
employee to express breast milk, and a private
space that Is not a bathroom In which to do
50.
An employer may be exempted from provisions of this
law If providing the time or space would substantially
disrupt the employer's operations.
~.YERMONT
Workplace Laws - Workers
10/14
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FAMILYI
MEDICAL
LEAVE
Many
Vermont employees are entitled to take
up
to 12 weeks ofJob-protected
unpaId
leave
to
care
for a new
child
(parental leave) or wilen a serIous
health
condItion affects
them
or a
famIly
member
average at least 30 hours' work per week. To be eligible,
these employees must have worked continuously at least
one year at an average of 30 hours per week.
The federal FMLA's provisions apply to government
employers and
to
businesses with
50
or more workers
within a
75
mile radius.
Employees may take leave intermittently in some cases.
They are entitled to maintain existing level of benefits, but
may be required to contribute
to
those costs. They are not
entitled to earn vacation time while on leave. Employees
may choose to use up
to
six weeks of sick leave, vacation
time or any other accrued paid time during the leave. Use
of paid leave does not extend overall leave entitlement.
With few exceptions, employees returning from leave must
be offered their former position or a comparable Job with
equal pay, benefits, seniority, etc.
Employees should provide advance written notice of their
request for leave when possible and should indicate how
long they think the leave will last. Employers may seek
certification regarding medical leave from a health care
provider.
(family/medical leave).
These protections are provided
by
Vermont's Parental and
Family Leave Act (PFLA) and, for those working for larger
employers, the federal Family and Medical Leave
Act
(FMLA).
The PFLA's parental leave provisions apply to employers
with
10
or more employees who average at least
30
hours' work per week; its family/medical leave provisions
apply to employers with
15
or more employees who
SHORr
IERM FAMILY LEAVE
Vermont employe.. covered
by
the
PFLA's
famIly and
medical
leave provisIons are
entitled
to
take short
term
family
leave of up to 4 hours of
unpaid leave
in
any
SO-day
period
(but
not more titan 24 hours
In
any
12-month perIod).
This leave is:
(1)
for participation in preschool or school
activities related to the academic advancement of your
Child;
(2)
to accompany a family member to: (a) routine
medical/dental appointments, or (b) other appointments
for professional services related to their care and well­
being. In most cases, employees should give at least
7
days' advance written notice.
Leave Fact Sheets:
From the Vermont Department of Labor
http://labor.vermontgov/wordpress/wp-contenf/
uploadsjWH-.14-Parental-Family..teave-Poster.pdf
From the U.s. Department of Labor
http://www.dol.gov/whd/regs/
compliance/whdfs28.pdf
Vermont Commission on Women
800-881-1561/
Provides publications
on
topics like
nursing
mothers, family leave, employment rights, and provides
Information and referrals
to
Vermonters.
Vermont Department
of
Labor,
Wage and Hour DMsion
802-828-0267 /
Provides information
on
wage
and employment related Issues and attempts
to
settle employer/employee wage disputes
to the satisfaction of all parties.
United States Department of Labor's
Women',
Bureau
617-565-1988 /
Empowers all working women
to
achieve economiC security.
10!14®
Resources
Learn More or Get Help
Vermont AHorney General's Civil RightLUnit
888-745-9195/
Enforces state laws prohibiting
discrImination
in
employment.
Equal Employment Oaortunlb Commission
800-669-4000/
Enforces federal laws
prohibiting employment discrimination.
Vermont Human Rights Commission
800-416-2010/
Enforces civil rights laws
relating to housing, public accommodations
and state government employment
~.VERMONT
Workplace Laws - Workers
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New Jersey Passes a Law Banning "Salary Secrecy"
Executive Summary
New Jersey has passed a law banning retaliation against employees who discuss their jobs and
compensation with their colleagues
if
the purpose of the discussion is to assist in investigating potential
discriminatory treatment conceming "pay, compensation, bonuses, other compensation, or benefits."
The new legislation (P.L2013, c.1S4) prohibiting "salary secrecy" is designed to combat the obstacles
to uncovering wage discrimination created by discouraging employees from discussing their wages and
benefits with others. The new pay equity protection is effective immediately
Prohibitions
It is illegal for any New Jersey employer to take retaliatory action against an employee simply because
that employee disclosed to or requested of another employee or former employee information regarding
his or her job titles, occupational categories, rates of compensation, benefits, gender, race, ethnicity,
national origin or military status. However, the disclosure or request must be made for the purpose of
assisting in investigating potential discrimination in the employer's payment of wages, bonuses or other
employee benefits.
Federal Law Must Also Be Considered
While the new law does not protect employees from adverse employment action unless the inquiry or
disclosure is related to gathering information about discrimination, employers nonetheless should be
cautious. In addition to the difficulty of being certain of an employee's motives for making the inquiry or
disclosure, the initiation of discussions concerning wages and other terms of employment often is
protected activity under the National Labor Relations Act. In fact, the National Labor Relations Board
Page 10f2
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considers any policy or practice that prevents or discourages employees from discussing the terms and
conditions of their employment to be a violation of law.
Practical Impact
The new law, which is now an official part of New Jersey's Law Against Discrimination, in many ways
mirrors
federal legislation.
As a matter of employee relations, publicity around the law may result in an
increase in employee awareness and discussions both inside and outside the workplace. Employers
therefore should take this opportunity
to
educate their managers and supervisors regarding the new
state legislation and remind them of their obligations and rights under
federal law.
As always please contact your Human Resource Business Partner
if
you have questions.
F'roduced in cooporation with Jackson Lewis LLP. This content provides practical information concerning the subject matter
covered and is
provided
with
tile
understanding that ADP
is
not rendering legal advice.
Page 20f2
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Agenda Item 9A
February 3, 2015
Action
MEMORANDUM
January 30,2015
TO:
FROM:
County Council
Robert H. Drummer, Senior Legislative Attorney
~
rf'\
SUBJECT:
Action:
Bill 51-14, Discriminatory Employment
Disclosure - Prohibited
~~~:ices
Retaliation for Wage
I
Health and Human Services Committee recommendation (3-0):
enact the Bill as introduced.
Bill 51-14, Discriminatory Employment Practices - Retaliation for Wage Disclosure ­
Prohibited, sponsored by then Vice President Leventhal and Councilmembers Navarro, EIrich,
Riemer, Berliner, and Hucker, was introduced on October 28,2014. The Council held a public
hearing on December 2, 2014 and a Health and Human Services Committee worksession was held
on January 15.
Background
Women continue to earn less pay than men for similar work in the workplace. Although,
equal pay for equal work is mandated by Federal, State, and County law, an employee's ability to
assert a right to equal pay may be impeded by lack of information. In certain circumstances, an
employee may suffer retaliation by an employer for discussing the employee's salary or the salary
of another employee.
Bill 51-14 would prohibit an employer from retaliating against an employee for disclosing
the wages of the employee or another employee.
It
would also establish certain exceptions to the
prohibition against retaliation for wage disclosures. For example, an employer would still be
permitted to discipline a human resources employee who has access to the wages of other
employees as part of his or her position for disclosing this information if
it
was
not done for an
appropriate business purpose. Bill 51-14 would add this prohibition to the County employment
discrimination laws. The County Office of Human Rights would enforce this provision as it does
other employment discrimination laws.
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Public Hearing
Both speakers at the public hearing, James Stowe, Director ofthe County Office ofHuman
Rights, speaking on behalf ofthe Executive (©15) and Mike Mage, speaking for the Montgomery
County Chapter ofthe ACLU of Maryland
16) supported the Bill as an important step to ending
pay discrimination in Montgomery County.
January 15 HHS Worksession
James Stowe, Director of the County Office of Human Rights, and David Dise, Director of
the Department of General Services, represented the Executive Branch. The Committee reviewed
the Bill. James Stowe said that the Executive supported the Bill. The Committee recommended
(3-0) to enact the Bill as introduced.
Issues
1. Are there similar laws in other jurisdictions?
Although the Civil Rights Act of 1964, as amended, and the Equal Pay Act, both prohibit
wage discrimination on the basis of race, color, sex, national origin, and religion, these Federal
laws do not expressly prohibit retaliation against an employee who discloses wage information.
Recognizing this gap in Federal law, President Obama issued Executive Order 13665 on April 8,
2014, prohibiting a Federal contractor from retaliating against an employee who has "inquired
about, discussed, or disclosed the compensation ofthe employee or applicant or another employee
or applicant." President Obama directed the Department of Labor (DOL) to issue regulations
implementing this Executive Order.
On September 14,2014, DOL issued proposed regulations implementing this Executive
Order. DOL explained the purpose of this regulation as follows:
While research has found that many factors contribute to the wage gap, such as
occupational preferences, pay discrimination remains a significant problem,
especially for the working poor and the middle class. Among the possible
contributing factors is the prevalence of workplace prohibitions against discussing
compensation.
Strictures against revealing compensation can conceal
compensation disparities among employees, making it impossible for an employee
to know he or she is being underpaid compared to his or her peers. Ifcompensation
remains hidden, employees who are being paid less because of their gender or race
will remain unaware of the problem. In the absence of this knowledge, these
employees will be unable to exercise their rights by filing a discrimination
complaint pursuant to the Executive Order. (DOL Fact Sheet at ©17-19)
Vermont enacted a wage disclosure law in 2005 (©20-23) and New Jersey did the same in
2013 (©24-25).
2
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2. What is the fiscal and economic impact of Bill 51-14?
The OMB Fiscal and Economic Impact Statement concludes that the law can be enforced
by the Office of Human Rights with existing staff. Although the Finance Department was unable
to estimate the economic impact of the Bill, an additional tool to eliminate pay discrimination in
the County would
be
a positive development for the local economy, if successfuL
3. Should Bill 51-14 be enacted?
The substance of Bill 51-14 is similar to the prohibition against retaliation for wage
disclosure contained
in
Bil129-14. However, Bill 51-14 adds this prohibition to the County's anti­
discrimination laws and would therefore apply to any employer who employs one or more persons
in
the County. Bill 29-14 would limit the prohibition to an employer who obtains a service contract
with the County. If Bill 51-14 is enacted, it would cover all County service contractors.
1
Equal pay for equal work is universally accepted today as good policy. Bill 51-14 would
help eliminate unlawful wage discrimination by preventing an employer from enforcing a wage
secrecy rule in the workplace. If an employee has access
to
the wages paid to other employees, it
will be much more difficult for an employer to practice unlawful wage discrimination. While Bill
51-14 is unlikely to eliminate unlawful wage discrimination in the County, it is likely to help.
Committee recommendation (3-0): enact Bill 51-14 as introduced.
This packet contains:
Bill 51-14
Legislative Request Report
Fiscal and Economic Impact Statement
Testimony of James Stowe
Testimony of Mike Mage
DOL Fact Sheet
Summary of Vermont Workplace Laws
Summary ofNew Jersey Law
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Bill
29-14 would also add reporting requirements for County service contractors.
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Bill No.
51-14
Conceming: Discriminatory Employment
Practices - Retaliation for Wage
Disclosure - Prohibited
Revised: January 15, 2015 Draft No.
L
Introduced:
October 28. 2014
Expires:
April 28, 2016
Enacted: ___________________
Executive: ______________
Effective: ______________
Sunset Date:
--'N~o~n:.::::e:...__
_______
ChI _ _, Laws of Mont Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Vice President Leventhal and Councilmernbers Navarro, EIrich, Riemer, Berliner, and Hucker
AN
ACT to:
(1)
(2)
(3)
prohibit an employer from retaliating against an employee for certain disclosures of
wages ofthe employee or another employee;
establishing certain exceptions
to
the prohibition against retaliation for wage
disclosures; and
generally amending the law concerning discriminatory employment practices.
By amending
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Section 27-19
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets))
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original hill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL No. 51-14
1
Sec.
1.
Section 27-19 is amended as follows:
27-19. Discriminatory employment practices.
2
3
4
5
6
(a)
A person must not because of the race, color, religious creed, ancestry,
national origin, age, sex, marital status, sexual orientation, gender
identity, family responsibilities, or genetic status of any individual or
disability of a qualified individual, or because of any reason that would
not have been asserted but for the race, color, religious creed, ancestry,
national origin, age, sex, marital status, disability, sexual orientation,
gender identity, family responsibilities, or genetic status:
(1) For an employer:
(A) fail or refuse to hire, fail to accept the servIces of,
discharge any individual, or otherwise discriminate against
any individual with respect to compensation, terms,
conditions, or privileges of employment; or
(B) limit, segregate, or classifY employees in any way that
would deprive or tend to affect adversely any individual's
employment opportunities or status as an employee;
(2) For an employment agency: fail or refuse to refer for
employment, assign job classifications to, classify or refer for
employment, or otherwise discriminate against, any individual;
(3)
For a labor organization:
(A) exclude or expel from its membership, or otherwise
discriminate against any individual;
(B) limit, segregate, or classifY its membership or classifY, or
fail or refuse to refer for employment, any individual in
any way that would deprive or tend to deprive any
individual of equal employment opportunities, or affect
-2­
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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BILL
No. 51-14
28
adversely the individual's employment opportunities or
status as an employee or as an applicant for employment;
or
(C)
cause or attempt to cause an employer to discriminate
against an individual in violation ofthis section; or
29
30
31
32
33
34
(4)
For an employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training programs:
discriminate against any individual in admission to,
employment
ill,
35
36
37
38
39
40
41
42
43
44
45
46
or
any
program
established
to
provide
apprenticeship or other training.
(b)
The term "discriminate" in subsection (a) includes excluding, or
otherwise denying, equal job opportunity or benefits to, a qualified
individual because of the known disability of an individual with whom
the qualified individual is known to have a relationship or association.
(c)
A person must not:
(1)
retaliate against any person for:
(A)
lawfully opposing any discriminatory practice prohibited
under this division; or
(B)
filing a complaint, testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing
under this division;
47
48
49
50
(2)
assist in, compel, or coerce any discriminatory practice prohibited
under this division;
51
52
(3)
obstruct or prevent enforcement or compliance with this division;
or
53
54
(4)
attempt directly or indirectly to commit any discriminatory
practice prohibited under this division.
-3­
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BILL
No. 51-14
55
56
57
58
(d)
(1)
Except as provided in paragraph 2, a person must not print,
publish, or cause to be printed or published, any notice or
advertisement
indicating
any
preference,
limitation,
or
specification based on race, color, religious creed, ancestry,
national origin, age, sex, marital status, disability, sexual
orientation, gender identity, family responsibilities, or genetic
status relating to:
(A)
59
60
61
62
63
64
65
employment by an employer;
membership in or any classification or referral for
employment by a labor organization; or
(B)
(C)
any classification or referral for employment by an
employment agency_
66
67
68
(2)
'This subsection does not prohibit a notice or advertisement from
indicating a preference, limitation, or specification that is a bona
fide occupational qualification for employment reasonably
necessary to the normal operation of the particular business or
enterprise.
69
70
71
72
73
(e)
Notwithstanding any other provision of this division, it
unlawful employment practice:
(1)
IS
not an
74
75
76
77
for an employer to hire and employ employees, for an
employment agency to classify or refer for employment any
individual, for a labor organization to classify its membership or
to classify or refer for employment any individual, or for an
employer,
labor organization or joint labor-management
78
79
committee controlling apprenticeship or other training or
retraining programs, to admit or employ any individual in any
program, on the basis of race, color, religious creed, age, sex,
-4 - .
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80
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BILL No. 51-14
82
83
marital status, national ongm, ancestry, disability, sexual
orientation, gender identity, family responsibilities, or genetic.
status based on a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise;
(2)
for a religious corporation, association, or society to hire and
employ employees of a particular religion; or
(3)
for an employer to deny employment on the basis of religious
creed if the observance, practice, or belief cannot be reasonably
accommodated by an employer without causing undue hardship
on the conduct ofthe employer's business.
(f)
Notwithstanding any other provision of this division, it is not unlawful
for any employer to observe the terms of a bona fide seniority system or
any bona fide employee benefit plan, such as a retirement, pension, or
insurance plan, that is not a subterfuge to evade the provisions and
purposes of this division, except that an employee benefit plan must not
excuse an employer's failure to hire any qualified person.
(g)
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
ill
[Reserved] Except as provided in paragraph
m
an
employer
must not discharge or in
any
other manner discriminate or
retaliate against an employee because the employee:
101
102
103
fA}
has inquired about, discussed, or disclosed the wages of
the employee or another employee; or
104
105
106
all
ill
asserts any right under this subsection.
The prohibition against retaliation for wage disclosure under
paragraph
ill
does not
mm.lY
to an employee who has access to
wage information of other employees or applicants as part of
the employee's essential job functions and discloses the wages
-5­
107
108
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BILL No. 51-14
109
110
111
112
113
114
of other employees or applicants to individuals who do not
otherwise have access to the information, unless the disclosure
is in response to:
CA)
(ID
~
formal complaint or charge;
in furtherance of an investigation, proceeding, hearing, or
action, including an investigation conducted
Qy
the
contractor; or
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
(Q
is consistent with the contractor's legal duty to furnish
information.
(h)
Notwithstanding any other provision of this division, a physician or
other licensed medical professional may use genetic information about,
and consider the genetic status of, an employee to evaluate whether a
disease, medical condition, or disability that is currently manifest is
preventing the employee from performing the essential functions of the
position if:
(1)
the genetic information is provided to the employee in writing as
soon as the information is available;
(2)
the genetic information is not disclosed to any other person
(including the employer) without the employee's voluntary,
written consent;
(3)
the genetic information
IS
maintained as a medical record
separate from the employee's employment records; and
(4)
no other law prohibits:
(A)
the medical professional from collecting or using the
genetic information, or
(B)
the employer from considering the disease or disability, or
the employee's genetic status.
-6­
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BILL
No.
51-14
136
137
138
139
(i)
This division does not prohibit genetic monitoring of biological effects
of toxic substances in the workplace if:
(1)
the employee has provided prior voluntary, infonned consent in
writing to participate in the monitoring;
(2)
the employee receives the results of the monitoring, including
both aggregate infonnation and any information regarding the
specific employee, as soon as results are available;
(3)
the monitoring complies with all other laws, such as regulations
protecting human subjects in research; and
(4)
the employer (other than a licensed medical professional involved
in the genetic m()nitoring) receives results of the monitoring only
in aggregate terms that do not disclose the identity of any specific
employee.
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
G)
An
employer must not require an employee to obtain or reveal any
genetic infonnation that the employer is prohibited from considering
under this division.
(k)
An
employer may reqUire an employee to adhere to reasonable
workplace appearance, grooming, and dress standards that are
nondiscriminatory and not precluded by any provision of state or federal
law. However, an employer must allow an employee to appear, groom,
and dress consistent with the employer's gender identity.
Approved:
156
157
158
George Leventhal, President, County Council
Date
-7­
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LEGISLATIVE REQUEST REPORT
Bill 51-14
Discriminatory Employment Practices
-
Retaliation/or Wage Disclosure
-
Prohibited
DESCRIPTION:
Bill 51-14 would prohibit an employer from retaliating against an
employee for certain disclosures of wages of the employee or another
employee.
It
would also establish certain exceptions to the
prohibition against retaliation for wage disclosures.
Women continue to earn less pay than men for similar work.
Although, equal pay for equal work is mandated by Federal, State,
and County law, an employee's ability to assert a right to equal pay
may be impeded by lack of infonnation. In certain circumstances, an
employee may suffer retaliation by an employer for discussing the
employee's salary or the salary of another employee.
The goal of this Bill is to promote equal pay for equal work.
County Attorney, Human Rights Office
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney
To
be
researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Compensatory damages and equitable relief.
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ROCKVILLE} MARYI..A.t'lD
MEMORANDUM
January 5, 2015
TO:
George Leventhal, President, County Council
Jennifer
A.
Hughes, Director,
.c:~gement
and Budget
Joseph F. Beach. Director, Dep<U., Finance
FEIS for Bi1I51-14, Discriminatory Emp]oymentPractices - Retaliation for
Wage Disclosure - Prohibited
FROM:
SUBJECT:
Please find attached the fiscal and economic impact statements for the above­
referenced legislation.
JAH:fz
cc: Bonnie Kirkland., Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy Nunni, Special Assistant to the County Executive
Patrick Lacefield, Director. Public lnformation Office
Joseph F. Beach, Director, Department of Finance
James Stowe, Director, Office of Human Rights
David Platt, Department of Finance
Phil Weeda, Office of Management and Budget
Helen Vallone, Office of Management and Budget
Alex Espinosa, Office of Management and Budget
Naeem Mia, Office of Management and Budget
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Fiscal Impact Statement
Council Bill 51-14. Discriminatory Employment Practices-Retaliation for Wage Disclosure­
Prohibited
1. Legislative Summary.
a
prohibits
an
employer from retaliating against an employee
for
disclosing the
wages
of
that employee
or
any other employee;
b. establishes exceptions to this general prohibition of retaliation against an
employee for disclosure of employee wages; and
c.
generally amends the law concerning discriminatory employment practices.
2.
An estimate of changes in County revenues and expenditures regardless of whether the
revenues or expenditures are assumed in
the
recommended
or
approved budget. Includes
source of information, assumptions, and methodologies used.
In most instances
where similar
legislation
is
in place in cities, c·ounties and
states,
significant data does not exist to estimate what the experience may be
in
Montgomery
County. MallY of these laws have not had many complaints filed. The state of
New
Jersey
enacted their "Wage Disclosure" statue in 2013 and since that time has received 1-2
comp laints. Similarly in the state
of
Vermont which enacted its first wage disclosure
statue in 2005 and strengthened it in 2013 have had minimal complaint activity_
The research suggests that Montgomery County may see
a
minimal number of complaints
filed once the law has been established.
If
this
proves true, then the number of cases
could
be
processed by existing
staff
and would present no major expenditures or adverse
impact on current services and staff.
3.
Revenue
and
expenditure estimates covering at least the next
6 fiscal years.
Expenditures over the next
6
fiscal years are estimated to
be
flat and consistent v..ith
current
budget
projections.
There may
he some
minimum cost required for educational
and outreach materials which would be limited
to
the first year
of
the
bilI,
and could
be
absorbed within current funding levels.
4.
An actuariaL analysis through the entire amortization period for each bill that would affect
retiree pension or group insurance costs.
Not applicable
5.
An estimate
of
expenditures related
to
County's information technology
(IT)
systems~
including Enterprise Resource Planning
(ERP)
systems.
Not applicable
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6. Later actions that may affect future revenue and expenditures if the bill authorizes future
spending.
Not applicable
7. An estimate ofU1e staff time needed to implement the bill.
Based on the current data available from other agencies throughout the region, the Office
of Human Rights (HRC)
will
utilize existing staff resources to absorb the additional
workload at least in the short term. Further knowledge is necessary upon implementation
of the law
in
order to evaluate if additional staff time is needed.
8. An explanation of how the addition of new
staff
responsibilities would affect other duties.
See answer to number 2.
9. All estimate of costs when an additional appropriation is needed.
Not applicable
, 10. A description of
any
variable that could affect revenue and cost estimates.
Varial')1es that could aftectcost estimates include the cost and scope of community
education and outreach alld possible increase in staff which cannot be estimated at this
time. The number ofenforcement actions in any given year is also subject to ""ide
variability.
11. Ranges of revenue or expenditures that
are
uncertain or difficult to project.
Although the bill allows for damages and other equitable relief consistent with the
prescribed remedies provided in the code, actual relief or revenue cannot be estimated at
this time. Furthermore, not all enforcement activity
results in complaints.
In
addition
the
cost of any needed educational outreach cannot be estimated with
any
accuracy at this
time.
HRe cannot estimate with. certainty the number of enforcement actions performed and
actual cases filed in a given year.
12. If a bill is likely to have no fiscal impact, why that is the case.
See answer to number 2.
13. Other fiscal
impact~
or comments.
Not applicable
@)
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14. The following contributed to and concurred
with
this analysis:
Jim Stowe. Director, Office of Human Rights
Helen
P. Vallone.
Senior
Management and Budget
Specialist, Office of
Management
al1d
Budget
.. Hughes; Directo
ffice
of
Management
and Budget
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Economic Impact Statement
Bill 51-14,
Discriminatory Emp)oyment Practices - Retaliation for Wage Disclosure
-
Prohibited
Background:
This legislation would prohibit an employer from retaliating against an employee for
certain disclosures of wages ofthe employee or another emp.loyee. Bill 51-14 would
establish certain exceptions to the prohibition against retaliation for wage disclosure.
The exception under Bill
:51-14
is that the prohibition against retaliation does oot apply to
an employee \vhohas access to wage information of other employees or applicants as part
of the employee's essential job functions. The exception also applies to an employee
who discloses the wages ofother employees or applicants
to
individuals who do not
otherwise have access to the information unless the disclosure is in response to: 1) a
formal complaint or charge; 2) as part .ofan ongoing investigation, proceeding, hearing.
or action, including an investigation conducted by the contractor, or 3) is consistent
'with
the contractor's legal duty to
furnish
information.
1. Tbe sou.rces of imonnation, assumptions, and methodologies used.
The sources of information are the Montgomery C-Ounty Office of Human Rights;
Institute for Women's Policy Research (IWPR); and Office ofFederal Contract
Compliance Programs (OFCCP),
u.s
Department of Labor.
According to an IWPRlRockefellt.'I' survey conducted in
2011,
about one-half of all
workers surveyed (51 percent ofwomen and 47 percent of men) "report that the
discussion of wage and salary information is either discouraged or prohibited and/or
could lead
to
punishment." According
to
survey respondents, private sector
employers are more likely to
''try
to control access to this information: 62 percent of
women and
60
percent of men working for private employers report
that
wage and
salary information is secret.
~~
According
to
the lWPR report dated January
2014,
"while th.ere may be no direct link between pay secrecy and pay
inequality,
pay
secrecy appears
to
contribute to
the gender gap in earnings."
On September
15,2014,
OFCCP announced a Notice of Proposed
Rulemaking
(NPRM) to prohibit
pay
secrecy policies and actions by covered Federal contractors
and subcontractors. The NPRM seeks to implement Executive Order (EO) 13665
'~by
proposing to prohibit Federal contractors from discharging or discriminating in any
other way against employees or applicants who inquire about, discuss, or disclose
their O\vn compensation of
the
compensation of another employee or applicant." This
proposed rule «seeks to level the playing field by increasing transparency and giving
these workers a much needed tool to fight pay discrimination." According to the
OFCCP Fact Sheet, research has found that many factors contribute to the wage gap
between men and w0I!1en and among those possible factors is the prevalence of
workplace prohibitions against discussing compensation.
Page 1 of2
@
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Economic Impact Statement
BiIl5l·14, Discriminatory Employment Practiees - Retaliation for Wage Disclbsure
- Prohibited
\Vhile EO 13665 addresses prohibition exhibited by Federal contractors, Bill 51-14
extends this prohibition to all employers
in
Montgomery County.
2. A
description of any variable that could affect tbe economic impact estimates.
The variable that could affect the economic impact is the prohibition could create a
level playing field among employees in
the
private sector and thereby
reducing
pay
discrimination. Such a reduction in pay discrimination could result
in
higher earnings
amount
~'}'eCific
employees. However, without specific data'on the difference
in
pay
among workers,
it
is difficult to quantify the economic benefit.
3. The Bill's positive or negative effect,
if
any on employment, spending, saving,
investment, incomes, and property values
in
the County.·
By prohibiting retaliation against an employee for certain disclosures of wages, Bill
51~
14 could have a positive economic impact employees' wages by reducing the
wage gap.
4.
If
a Bill is likely to have no economic impact, why
is
that the ease?
Bill 51-14 could have an economic impact but
~ithout
specific
data,
it is uncertain
the value of such an impact on employees' wages.
5.
The fonowing contributed
to
or
concurred
with this
analysis:
David
Platt
and Rob
Hagedoom, Finance; James Stowe, Director, Office oflJuman
Rights;
and Helen P.
Vallone,OMB.
·ch, Director
ment of Finance
Page2of2
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OFFICE OF HUMAN RIGHTS
Isiah Leggett
COIlI1(V
Executive
James
L.
Stowe
Director
TESTIMONY ON BEHALF OF THE COUNTY EXECUTIVE ISIAH LEGGETT
ON BILL 51-14, DISCRIMINATORY EMPLOYMENT PRACTICES­
RETALIATION FOR WAGE DISCLOSURE-PROIDBITED
December
2, 2014
Good afternoon. My name is Jim Stowe, Director of the Montgomery County
Office of Human Rights, and I am here on behalf of County Executive Isiah Leggett to
urge the Council's favorable consideration of Bill 51-14 which would prohibit, with
.certain exceptions, employers from retaliating against employees for certain disclosures
of wages of the employee or other employees.
Montgomery County is home to a diverse, vibrant, majority-minority popUlation.
The County's employer and employee base reflects this diversity. The County has always
been a leader among local governments in promulgating responsible and inclusive laws
as it relates to the protections provided in our Civil Rights Code. The County has
aggressively enforced such laws, including those laws that prohibit discriminatory
employment practices with respect to compensation. Laws that pertain to Minimum
Wage, the Living and Prevailing Wage, Minority, Female and Disabled-owned Business
Programs all focus on making available fair and equal access to the economic vitality of
our county and pay equity for workers. The provisions of Bill 51-14 are modeled after the
provisions ofBill29-14, Contracts and Procurement Wage Requirements- Reporting,
introduced on behalf of County Executive Leggett in May of this year. That Bill requires
County contractors to report certain wage infonnation and similarly prohibits contractors
from retaliating against employees for certain disclosures ofwages of the employee or
other employees.
Under current law, the Office ofHurnan Rights has enforcement authority to
investigate complaints of alleged discriminatory employment practices which may be a
violation of Chapter 27, Human Rights and Civil Liberties. This bill would add to the
current law the additional responsibility to the Office of Human Rights to investigate
complaints and carry out other enforcement measures codified by this legislation.
County Executive Leggett believes that women and minority employees who work in
Montgomery County deserve to make the same pay as their colleagues, and passing this
Bill would continue the County's efforts toward pay equity. Thank you for the
opportunity to testify in support of Bill 51-14.
21 Maryland Avenue, Suite 330 • Rockville, Maryland 20850 • 240-777-8450 • 240-777-8480
TTY·
240-777-8460 FAX
w\vw.montgomerycountymd.gov
montgomerycountymd.gov/311
240-773-3556 ITY
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AMERICAN CIVIL LIBERTIES UNION
Montgomery County Chapter, ACLU
of
MD.
Mike Mage and Darian Unger, Co-Chairs.
DECEMBER 2, 2014
WE SUPPORT MONTGOMERY COUNTY BILL 51-14 DISCRIMINATORY
EMPLOYMENT PRACTICES -
RETALIA
TION FOR WAGE DISCLOSURE
- PROHIBITED.
Testimony of Mike Mage, Co-Chair, Montgomery County Chapter, ACLU of Maryland
301-402-5537W, 301-229-0470H, 240-899-3312C,
!!lagem62@hotjllai1.com
Good Afternoon. Thank you for holding this important hearing on bill 51-14.
In
2009, the Supreme Court of the United States recognized in
Crawfordv. Metro. Gov'tofNashville
&
Davidson County,
that "fear of retaliation is the leading reason why people stay silent instead of
voicing their concerns about bias and discrimination".
Workers often don't know about pay discrimination because employers have rules that punish
employees for sharing wage information with their colleagues. Allowing workers to discuss their
salaries without fear for their jobs, will help them learn if they are being treated equally.
Unfortunately, pay discrimination is still a fact of life. For example, women still earn, on average,
only 77 cents for every dollar earned by a man. It's even more dismal for women of color- in 2012,
African American women only earned about 64 cents and Latinas only 54 cents for each dollar earned
by white men.
Moreover, nearly half of all workers are either· forbidden or strongly discouraged from discussing
their pay with colleagues. Pay secrecy means that there is no way for many women to even know
they recieve less than their male co-workers. This injustice is especially troubling in today's difficult
economy, where 40% of women are acting as primary breadwinners, and 65% are breadwinners or
co-breadwinners. Pay equity is crucial, not only to families' economic security, but also to the
nation's economic recovery.
There is some progress. President Obama has issued an executive order that protects the 26 million
workers employed by federal contractors, when they
try
to find out if they are being paid fairly.
Bil151-14 takes an important step toward ending pay discrimination in Montgomery County, by
forbidding retaliation against workers who ask about their employers' wage practices or disclose their
own wages. It continues Montgomery County's long tradition ofprotecting civil rights and civil
liberties. We urge it's prompt passage.
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U.S. DEPARTMENT OF lABOR
FACT SHEET
Notice of Proposed Rulemaking
Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions
Background
On September 15, 2014, the U.S. Department of Labor's Office of Federal Contract Compliance
Programs (OFCCP) announced a Notice of Proposed Rulemaking (NPRM) to prohibit pay
secrecy policies and actions by covered Federal contractors and subcontractors.
This NPRM seeks to implement Executive Order (EO) 13665, signed by President Obama on
April 8, 2014, by proposing to prohibit Federal contractors from discharging or discriminating in
any other way against employees or applicants who inquire about, discuss, or disclose their own
compensation or the compensation of another employee or applicant. Enabling the more than 28
million employees of Federal contractors and subcontractors to discuss their compensation
without fear of adverse action can contribute to reducing pay discrimination and ensuring that
qualified and productive employees receive fair compensation. This proposed rule, like the
Paycheck Fairness Act, seeks to level the playing field by increasing transparency and giving
these workers a much needed tool to fight pay discrimination.
The rule will be published in the Sept. 17 issue of the
Federal Register
and open for public
comment for a period of90 days, thereafter. To read and learn more about the proposed rule,
please visit www.doLgov/ofccp/PayTransparencyNPRM.
Need for the Proposed Rule
Despite the existence of laws protecting workers from gender-based compensation
discrimination for more than five decades, a pay gap between men and women persists today.
Consider that:
.
• A comparison of average annual wage
data
reveals that women make 77 cents for every
dollar that men make.
1
Recent data on average weekly wages from the Bureau of Labor
Statistics (BLS) show a similar gap, with women making 82 cents for every dollar that
men make.
2
The gap in wages is even greater for some women of color.
Bureau of the Census, Income, Poverty and Health Insurance Coverage in the United States, Current
Population Reports 2011 (Sept. 2012), available at http://www.census.gov/prodl2012pubs/p60-243.pdf. Calculation
of the pay gap using average weekly wages has the advantage of accounting for differences in hours worked, which
is not captured in calculations using annual wage data. However, calculations using weekly wage data do not
account for forms ofcompensation other
than
those paid as weekly wages, unlike annual wage calculations. While
neither method is perfect, analyses that account for factors like occupation and qualifications further support the
existence of a significant gender-based pay disparity.
Bureau of Labor Statistics,
u.s.
Department of Labor, Current Population Survey, Labor Force Statistics from
Current Population Survey, Median Weekly Earnings of Full-Time Wage and Salary Workers by Selected
Characteristics, available at http://www.bls.gov/cps/cpsaat37.htm; Updated quarterly CPS earnings figures by
2
1
U.S.
@
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• BLS data show that African American women earn 68 cents and Latina women earn 59
cents for every dollar earned by a non-Hispanic white man.
3
Census data show similar
disparities, with African American women making 64 cents, Latina women making 56
cents, and Asian women making 86 cents per dollar earned by a non-Hispanic white
man.
4
While research has found that many factors contribute to the wage gap, such as occupational
preferences, pay discrimination remains a significant problem, especially for the working poor
and the middle class. Among the possible contributing factors is the prevalence of workplace
prohibitions against discussing compensation. Strictures against revealing compensation can
conceal compensation disparities among employees, making it impossible for an employee to
know he or she is being underpaid compared to his or her peers. If compensation remains
hidden, employees who are being paid less because of their gender or race will remain unaware
of the problem.
In
the absence of this knowledge, these employees will be unable to exercise
their rights by filing a discrimination complaint pursuant to the Executive Order.
Highlights of the Proposed Rule
The NPRM proposes the following changes to the existing regulations:
• Amends the Equal Opportunity Clause of Executive Order 11246 that requires certain
information be included in Federal contracts and subcontracts. The amendment mandates
inclusion of the requirement that Federal contractors and subcontractors refrain from
discharging, or otherwise discriminating against, employees or applicants who inquire
about, discuss, or disclose their compensation or the compensation of other employees or
applicants.
An
exception exists where the employee or applicant makes the disclosure
based on information obtained in the course of performing his or her essential job
functions.
• Requires that Federal contractors incorporate the nondiscrimination provision into their
existing employee manuals or handbooks, and disseminate the nondiscrimination
provision to employees and to job applicants.
demographics by quarter for sex through the end of2013, available at
http://www.bls.gov/news.release/wkyeng.tOI.htm.
3
Bureau of Labor Statistics, U.S. Department of Labor, Current Population Survey, Labor Force Statistics from
Current Population Survey, available at http://www.bls.gov/cps/earnings.htm#demographics.
42012 Person Income Table PINC-lO. Wage and Salary Workers-People i5 Years Old
and
Over, by Total Wage
and Salary Income in 2012, Work Experience in 2012, Race, Hispanic Origin, and Sex, available at
https:llwww.census.gov/hhes/www/cpstables/032013/perinclpinclOOOO.htm (comparison ofmedian wage for
workers working 50 or more weeks).
2
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• Defines key words or terms such as compensation, compensation information, and
essential job functions as used in the Executive Order.
• Provides employers with two defenses to an allegation of discrimination: one based on
enforcing rules against disruptive behavior; and the other based on the essential functions
ofthe person's job.
For more information, please go to www.dol.gov/ofccp.
3
19
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REXlBLE
WORKING
ARRANGEMENIS
As
of January 2014,
Vermont employees have the
right to
request flexible working
arrangements
and employers
must
discuss and consider these
requests.
The new law applies to all Vermont employees and
gives them the
right to request
a flexible working
arrangement for any reason and requires employers
to discuss and consider such requests at least twice
per calendar year.
The law does not dictate which requests must be
granted, but instead
provides a framework for
a meaningful workplace dialogue.
Importantly,
the law also protects employees who seek such
arrangements from retaliation or discrimination.
The law defines "flexible working arrangement"
as
"Intermediate or long-term changes In the
employee'S regular working arrangements,
including changes in the number of days or hours
WOrked, changes In the time the employee arrives
at or departs from work, work from home, or
Job­
sharing."
This new law doesn't apply to other forms of leave that
may already be required by Vermont or federal law,
such as parental or family leave, accommodations for
disabilities, or workers' compensation injuries. The law
does not diminish rights set forth in labor contracts.
It also doesn't apply to routine shift scheduling or
vacation requests.
Employees may make the request verbally or in writing.
The request should be as specifiC as possible, and
employees should be prepared to discuss how the
arrangement would still allow the employer to meet
business needs.
The employer must then discuss the request in good
faith. The discussion can take place in person or over
the telephone. During the discussion, either party may
propose alternatives to the arrangement requested.
The employer has the duty to consider in good
faith
whether the requested arrangement could
be granted In a manner that Is not Inconsistent
with
Its
business operations or
Its
legal or
contractual obligations.
The law identifies several
factors the employer may consider: (1) the burden of
additional costs;
(2)
the effect on aggregate employee
morale;
(3)
the effect on ability to meet consumer
demand;
(4)
an inability to reorganize work among
existing staff;
(5)
an inability to recruit additional
staff;
(6)
a detrimental impact on business quality
or performance;
(7)
an insufficiency of work during
periods the employee proposes to work; and
(8)
planned structural changes to the business.
The law
requires employers to notify employees
of their decision.
If the request was submitted in
writing, the employer must state any complete or
partial denial of the request In writing.
The law does not change existing legal rights of
employers and employees to create, terminate, or
modify flexible working arrangements. Instead it
provides the framework for meaningful dialogue
about whether such arrangements would work for
both parties.
~.VERMONT
Workplace Laws - Workers
10/14
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EQUAL
PAY
Vermont employees
have
the
rlllht
to
equal pay
for
equal
work.
In 2002 Vermont adopted the Equal Pay Act, and
strengthened its provisions in 2013. The law applies to
any employer, employment agency, labor organization,
or any person hiring Vermont employees.
The law says It Is Illegal
to
pay wages
to
employees
of
one sex at a rate less than the rate paid to
employees
of
the other sex for equal work that
requires equal, but not Identical, skill, effort, and
responsibility, and Is performed under similar
working conditions.
Employees
,gm
be paid different wages when the
difference is a result of: (1) a seniority system; (2)
a merit system;
(3)
a system in which earnings are
based on quantity or quality of production; or
(4)
a
bona fide factor other than sex, provided: (a) it does not
perpetuate a sex-based differential in compensation;
(b) it Is job related with respect to the position in
question; and (c) is based upon a legitimate business
consideration.
WAlE
DISCLOSURE
disclose their own wages and inquire about and
discuss others' wages without fear of discipline,
discharge, or retallaUon.
Employers cannot require employees to sign
a wage non-cllsclosure agreement or otherwise
prevent them from disclosing their own wages,
Vermont employees have
the
rillht
to
disclose and
inquiring about others' wages, or discussing wages in
discuss
their
walles
and inquire
about
and
discuss general.
the walles of others.
Unless otherwise required by law, Human Resources
In 2005 Vermont adopted a Wage Disclosure Law and
managers may be prohibited from disclosing the wages
strengthened it in 2013. The law says employees can of other employees.
If You Suspect
Pay
Discrimination
Talk to Your Employer. Check your employee handbook
for procedures for filing a grievance or resolving a
problem. Put your complaint in writing.
What To
Do
DecIde Whether to File a Charge. The Vermont
Attorney General has the authority to investigate
complaints of wage discrimination and to seek civil
. Find Out How Others Have Been Treated at Your
Workplace. Share information with co-workers on ways penalties and damages from employers who violate the
to improve pay, benefits, promotion opportunities, work equal pay law. The Human Rights Commission has the
schedules and other working conditions.
same authority for state government employees. See
Resources section for more information.
Write Down What Happened. Were you offered a
lower starting salary, or did you discover that you are
being paid less than a co-worker? Were you disciplined
or discharged because you disclosed your wage to a co­
worker?
~.vERMONT
VERMONT COMMISSION ON WOMEH
Workplace Laws - Workers
10/14
@)
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FAIR TREA1MENT
FOR PREGNANr
WORKERS
Pregnant employees
have
'ederal
and
state
protectIons.
of her Job.
Both laws provide that if a woman is
temporarily unable to perform her job due to a medical
condition related
to
pregnancy or childbirth, the
employer must make accommodations for her If
It
has done so with other temporarily disabled
employe...
For example, the employer may have to
provide light duty, alternative assignments, disability
leave, or unpaid leave to pregnant employees if it does
so for other temporarily disabled employees.
Under the FMLA and PFLA,
covered employers
must provide 12 weeks of unpaid leave and
Protections for pregnant workers may arise under
Job protection
for certain workers for pregnancy,
several federal laws, including the Pregnancy
the birth or adoption of a child, and some medical
Discrimination Act (PDA), the Family and Medical Leave appointments.
Act (FMLA), and in some instances, the Americans with
Disabilities Act (ADA). Protections may also arise under Finally, although pregnancy itself is not a covered
"disability" within the meaning of the ADA or FEPA,
state Jaws, including Vermont's Parental and Family
certain pregnancy.,elated conditions, such as
Leave Act (PFLA) and Vermont's Fair Employment
gestational diabetes or preeclampsia, may be
Practices Act (FEPA).
so serious that they are considered protected
Both the PDA and FEPA
forbid employers from
disabilities.
In such cases, employees cannot
acting upon mere assumptions about what
face discrimination for having such disabilities,
types
of
Jobs a pregnant woman Is capable of
and employers may have to provide a reasonable
performing. In addition, they cannot refuse to
accommodation (such as leave or modifications
hire a pregnant woman and cannot fire a pregnant
that enable an employee to perform her Job) for the
woman who is able
to
perform the major functions
disabilities, absent undue hardship for the business .
Vermont
employees now
have
stronger protections
agaInst employer
dISciplIne, dIscharge,
or
retaliatIon
when exercisIng
these
'air
employment
and leave
rlgIrts.
Employees may not face retaliation for exercising, or
attempting to exercise, their rights (such as disclosing
Vermont
employees have
the
right to request tIme
their wages or asking for statutory leave) opposing
unlawful employment practices, lodging complaints of
and
space to eKPress breast
milk
at work.
unlawful practices, or cooperating in investigations of
Both Vermont state labor law and the federal Fair Labor
such complaints. In addition, employees may not face
Standards Act (FLSA) provide protections for working
retaliation merely because the employer believes they
mothers and their nursing children,
including time,
are about to engage in any of these legally-protected
either paid or unpaid, throughout the day for the
activities.
employee to express breast milk, and a private
space that Is not a bathroom In which to do
50.
An employer may be exempted from provisions of this
law If providing the time or space would substantially
disrupt the employer's operations.
~.YERMONT
Workplace Laws - Workers
10/14
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FAMILYI
MEDICAL
LEAVE
Many
Vermont employees are entitled to take
up
to 12 weeks ofJob-protected
unpaId
leave
to
care
for a new
child
(parental leave) or wilen a serIous
health
condItion affects
them
or a
famIly
member
average at least 30 hours' work per week. To be eligible,
these employees must have worked continuously at least
one year at an average of 30 hours per week.
The federal FMLA's provisions apply to government
employers and
to
businesses with
50
or more workers
within a
75
mile radius.
Employees may take leave intermittently in some cases.
They are entitled to maintain existing level of benefits, but
may be required to contribute
to
those costs. They are not
entitled to earn vacation time while on leave. Employees
may choose to use up
to
six weeks of sick leave, vacation
time or any other accrued paid time during the leave. Use
of paid leave does not extend overall leave entitlement.
With few exceptions, employees returning from leave must
be offered their former position or a comparable Job with
equal pay, benefits, seniority, etc.
Employees should provide advance written notice of their
request for leave when possible and should indicate how
long they think the leave will last. Employers may seek
certification regarding medical leave from a health care
provider.
(family/medical leave).
These protections are provided
by
Vermont's Parental and
Family Leave Act (PFLA) and, for those working for larger
employers, the federal Family and Medical Leave
Act
(FMLA).
The PFLA's parental leave provisions apply to employers
with
10
or more employees who average at least
30
hours' work per week; its family/medical leave provisions
apply to employers with
15
or more employees who
SHORr
IERM FAMILY LEAVE
Vermont employe.. covered
by
the
PFLA's
famIly and
medical
leave provisIons are
entitled
to
take short
term
family
leave of up to 4 hours of
unpaid leave
in
any
SO-day
period
(but
not more titan 24 hours
In
any
12-month perIod).
This leave is:
(1)
for participation in preschool or school
activities related to the academic advancement of your
Child;
(2)
to accompany a family member to: (a) routine
medical/dental appointments, or (b) other appointments
for professional services related to their care and well­
being. In most cases, employees should give at least
7
days' advance written notice.
Leave Fact Sheets:
From the Vermont Department of Labor
http://labor.vermontgov/wordpress/wp-contenf/
uploadsjWH-.14-Parental-Family..teave-Poster.pdf
From the U.s. Department of Labor
http://www.dol.gov/whd/regs/
compliance/whdfs28.pdf
Vermont Commission on Women
800-881-1561/
Provides publications
on
topics like
nursing
mothers, family leave, employment rights, and provides
Information and referrals
to
Vermonters.
Vermont Department
of
Labor,
Wage and Hour DMsion
802-828-0267 /
Provides information
on
wage
and employment related Issues and attempts
to
settle employer/employee wage disputes
to the satisfaction of all parties.
United States Department of Labor's
Women',
Bureau
617-565-1988 /
Empowers all working women
to
achieve economiC security.
10!14®
Resources
Learn More or Get Help
Vermont AHorney General's Civil RightLUnit
888-745-9195/
Enforces state laws prohibiting
discrImination
in
employment.
Equal Employment Oaortunlb Commission
800-669-4000/
Enforces federal laws
prohibiting employment discrimination.
Vermont Human Rights Commission
800-416-2010/
Enforces civil rights laws
relating to housing, public accommodations
and state government employment
~.VERMONT
Workplace Laws - Workers
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New Jersey Passes a Law Banning "Salary Secrecy"
Executive Summary
New Jersey has passed a law banning retaliation against employees who discuss their jobs and
compensation with their colleagues
if
the purpose of the discussion is to assist in investigating potential
discriminatory treatment conceming "pay, compensation, bonuses, other compensation, or benefits."
The new legislation (P.L2013, c.1S4) prohibiting "salary secrecy" is designed to combat the obstacles
to uncovering wage discrimination created by discouraging employees from discussing their wages and
benefits with others. The new pay equity protection is effective immediately
Prohibitions
It is illegal for any New Jersey employer to take retaliatory action against an employee simply because
that employee disclosed to or requested of another employee or former employee information regarding
his or her job titles, occupational categories, rates of compensation, benefits, gender, race, ethnicity,
national origin or military status. However, the disclosure or request must be made for the purpose of
assisting in investigating potential discrimination in the employer's payment of wages, bonuses or other
employee benefits.
Federal Law Must Also Be Considered
While the new law does not protect employees from adverse employment action unless the inquiry or
disclosure is related to gathering information about discrimination, employers nonetheless should be
cautious. In addition to the difficulty of being certain of an employee's motives for making the inquiry or
disclosure, the initiation of discussions concerning wages and other terms of employment often is
protected activity under the National Labor Relations Act. In fact, the National Labor Relations Board
Page 10f2
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considers any policy or practice that prevents or discourages employees from discussing the terms and
conditions of their employment to be a violation of law.
Practical Impact
The new law, which is now an official part of New Jersey's Law Against Discrimination, in many ways
mirrors
federal legislation.
As a matter of employee relations, publicity around the law may result in an
increase in employee awareness and discussions both inside and outside the workplace. Employers
therefore should take this opportunity
to
educate their managers and supervisors regarding the new
state legislation and remind them of their obligations and rights under
federal law.
As always please contact your Human Resource Business Partner
if
you have questions.
F'roduced in cooporation with Jackson Lewis LLP. This content provides practical information concerning the subject matter
covered and is
provided
with
tile
understanding that ADP
is
not rendering legal advice.
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