2021 Regular Session
To: Labor; Judiciary, Division A
By: Senator(s) Witherspoon
AN ACT TO ESTABLISH THE "MISSISSIPPI PAY EQUITY ACT" TO PROVIDE THAT NO EMPLOYER SHALL PAY AN EMPLOYEE A WAGE AT A RATE LESS THAN THE RATE AT WHICH AN EMPLOYEE OF A DIFFERENT GENDER IS PAID FOR EQUAL WORK; TO PROVIDE THAT AN EMPLOYEE MAY FILE A PETITION IN THE PROPER CIRCUIT COURT; TO PROHIBIT RETALIATORY DISCHARGE; AND FOR RELATED PURPOSES
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Pay Equity Act."
SECTION 2. The following words and phrases shall have the following meanings, unless the context clearly requires otherwise:
(a) "Employer" means any person or entity employing one or more employees.
(b) "Employee" means an individual who renders personal service wholly or partly in this state to an employer who pays or agrees to pay such individual an agreed-upon rate for services rendered in which payments are ordinarily made or to be made in this state.
(c) "Wages" means all forms of remuneration and compensation for services rendered by an employee for an employer whether paid directly by the employer or another person, including the cash value of all compensation paid in any form other than cash.
(d) "Rate," with reference to wages, means the basis of compensation for services by an employee for an employer and includes compensation based on the time spent in the performance of such services, or on a quantity of production or number of tasks or operations completed.
(e) "Unpaid wages" means the difference between the wages actually paid to an employee and the wages required under Section 3(1) of this act.
(f) "Comparable work" means work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions; provided, however, that a job title or job description alone shall not determine work comparability.
(g) "Working conditions" shall include the environmental and other similar circumstances customarily taken into consideration in setting salary or wages, and the physical surroundings and hazards encountered by employees performing a job.
SECTION 3. (1) No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work; provided, however, that variations in salaries or wages shall not be prohibited if based upon:
(a) A system of pay that rewards seniority with the employer in the form of pay increases and/or promotions; provided, however, that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave shall not reduce the seniority level of an employee;
(b) A merit system; provided, however, that such a merit system was well-established prior to the alleging of a violation of this section on the part of an employee or employees; and, provided that such a merit system is equally accessible to employees of all genders; and, provided that such a merit system is not stratified by gender in which certain jobs or occupations offered by the same employer providing more opportunities for meritorious achievements are disproportionately occupied by one (1) gender, provided that the education, training and experience of employees is not the reason for stratification of jobs by gender;
(c) A system which measures earnings by quantity or quality of production, sales or revenue;
(d) The geographic location in which a job is performed;
(e) Education, training or experience to the extent such factors are reasonably related to the particular job in question;
(f) Travel, if the travel is a regular and necessary condition of the particular job.
(2) An employer who is paying a wage differential in violation of this section shall not reduce the wages of any employee solely in order to comply with this section. No employer shall discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment because the employee has filed a complaint in a proceeding under subsection (1) of this section, or has testified, or is about to testify, in any investigation or proceedings pursuant to subsection (1) of this section or in a criminal action pursuant to subsection (1) of this section.
(3) Subsection (1) of this section creates an actionable right in Mississippi for any person who is an employee and who believes that such person's employer has violated the provisions of subsection (1) of this section. Any such employee who is aggrieved under subsection (1) of this section may file a petition in the proper circuit court in Mississippi. If an employer is found to have violated the provisions of subsection (1) of this section, the employee shall be awarded reasonable remedies, which may include attorney's fees, prejudgment interest, back pay, liquidated damages and one hundred percent (100%) of the difference of unpaid wages. If the employer is found to have willfully violated the provisions of subsection (1) of this section, the employee shall be awarded three hundred percent (300%) of reasonable remedies, which may include attorney's fees, prejudgment interest, back pay, liquidated damages and the difference of unpaid wages. Action to recover such liability may be maintained by any one or more employees for and on their own behalf, or on behalf of other employees similarly situated. Any agreement between the employer and any employee to work for less than the wage to which the employee is entitled under subsection (1) of this section shall not be a defense to action. An employee's previous wage or salary history shall not be a defense to action.
Any petition alleging violations under subsection (1) of this section shall be filed in the proper circuit court within three (3) years after the date of the alleged violation. A violation occurs when an employer is found to have made a compensation decision or engaged in a compensation practice resulting in a discriminatory pay differential between genders on the basis of gender alone, including when such a practice is adopted by the employer, when an employee becomes subject to such a decision or practice, or when an employee is affected by the employer's application of such a decision or practice, including each time wages are paid, resulting in whole or in part from such a decision or practice.
SECTION 4. It shall be an unlawful practice for an employer to:
(a) Prohibit, as a condition of employment, employees from openly discussing or disclosing information about their own salary or wages with their colleagues, coworkers or supervisors if they choose to do so, or to prohibit employees from inquiring about, disclosing or discussing any information about any other employee's wages; provided, however, that no employer shall be obligated to disclose an employee's wages to another employee or a third party under this section.
(b) Seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer or to require that a prospective employee's prior wage or salary history meet certain criteria; provided, however, that if a prospective employee has voluntarily disclosed such information, a prospective employer may confirm prior wages or salary or permit a prospective employee to confirm prior wages or salary and a prospective employer may seek or confirm a prospective employee's wage or salary history after an offer of employment with compensation has been negotiated and made to the prospective employee.
(c) Terminate employment of, reduce hours, reduce pay, deny promotion or in any other manner retaliate against any employee because the employee:
(i) Opposed any act or practice made unlawful by this section;
(ii) Made or indicated an intent to make a complaint under this section;
(iii) Testified or is about to testify, assist or participate in any manner in an investigation or proceeding under this section; or
(iv) Disclosed the employee's wages or has inquired about or discussed the wages of any other employee.
(d) Restructure employment arrangements by entering into a contract with an employee for the sole purpose of avoiding compliance with this subsection or by any other means exempt itself from this subsection; provided, however, that an employer may prohibit a human resources employee, a supervisor or any other employee whose job responsibilities require or allow access to other employees' compensation information from disclosing such information without prior written consent from the employee whose information is sought or requested unless the compensation information is a public record.
This section shall be enforced in the same manner as Section 3(3) of this act.
SECTION 5. This act shall take effect and be in force from and after July 1, 2021.