House Bill 1141

AN ACT TO AMEND SECTION 71-17-3, MISSISSIPPI CODE OF 1972, TO DEFINE "WAGE HISTORY"; TO AMEND SECTION 71-17-5, MISSISSIPPI CODE OF 1972, TO PROVIDE HOW A PERSON'S WAGE HISTORY MAY AND MAY NOT BE USED WHILE THAT PERSON IS AN APPLICANT FOR EMPLOYMENT; TO PROVIDE PENALTIES FOR THOSE EMPLOYERS WHO VIOLATE THE PROVISIONS RELATED TO WAGE HISTORY; TO AMEND SECTION 71-17-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CERTAIN PRECEDENTS SHALL NOT BE CONSIDERED MANDATORY AUTHORITY FOR CLAIMS THAT ARE BROUGHT AS A RESULT OF VIOLATIONS OF THE PROVISIONS RELATED TO WAGE HISTORY; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 71-17-3, Mississippi Code of 1972, is amended as follows:

71-17-3. For the purposes of this chapter, the following words and phrases shall have the meanings as defined in this section unless the context clearly indicates otherwise:

(a) "Employee" means any individual who is employed to work forty (40) or more hours a week and who is employed by an employer, including individuals employed by the state or any of its political subdivisions or instrumentalities of subdivisions.

(b) "Employer" means any person who employs five (5) or more employees.

(c) "Wage" means and includes all compensation paid by an employer or his or her agent for the performance of service by an employee, including the cash value of all compensation paid in any medium 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 time spent in the performance of such services, on the number of operations accomplished, or on the quality produced or handled.

(e) "Unpaid wages" means the difference between the wages actually paid to an employee and the wages required to be paid to an employee as provided in this chapter.

(f) "Skill" means and shall be measured by factors such as experience, ability, education and training that are required to perform a job.

(g) "Effort" means the amount of physical or mental exertion needed to perform a job.

(h) "Responsibility" means the degree of accountability required to perform the job.

(i) "Working Conditions" means and includes the following two (2) factors:

(i) The physical surroundings of a job including, but not limited to, temperature, fumes and ventilation; and

(ii) The hazards of the job.

(j) "Wage history" means the wages paid to an applicant for employment by the applicant's current employer and/or previous employer or employers.

SECTION 2. Section 71-17-5, Mississippi Code of 1972, is amended as follows:

71-17-5. (1) No employer may pay an employee a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job, the performance of which requires equal skill, education, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to differential based on:

(a) A seniority system;

(b) A merit system;

(d) Any other factor other than sex. "Any other factor other than sex" shall include, but not be limited to, the following factors:

* * *

( * * *iii) The extent to which there was competition with other employers for the employee's services as compared to employees of the opposite sex in the same establishment; and

( * * *~~iii~~ii) The extent to which the employee attempted to negotiate for higher wages as compared to employees of the opposite sex in the same establishment.

(2) (a) Except as otherwise provided in this subsection, no employer shall:

(i) Rely on the wage history of an applicant for employment in considering the applicant for employment.

(ii) Rely on the wage history of an applicant for employment in determining the wages such applicant is to be paid by the employer upon hire; or

(iii) Seek the wage history of an applicant.

(b) After an employer makes an initial offer of employment with an offer of compensation to an applicant for employment, an employer may:

(i) Rely on wage history to support a wage higher than the wage offered by the employer, if wage history is voluntarily provided by the applicant for employment without prompting from the employer; and

(ii) Seek to confirm the wage history of the applicant for employment to support a wage higher than the wage offered by the employer when relying on wage history as permitted above.

(c) An employer may rely on wage history as permitted in this subsection to the extent that the higher wage does not create an unlawful pay differential based on sex as provided in federal law and this chapter.

( * * *23) (a) The provisions of this chapter may be enforced by private action in a civil suit in the circuit court in the county in Mississippi where the cause of action occurred pursuant to the Mississippi Rules of Civil Procedure.

(b) If an employer is found to have violated the provisions of subsection (1) or (2) of this section, the employee shall be awarded reasonable attorney's fees, prejudgment interest, back pay and costs of the action.

(c) If an employer is found to have violated the provisions of subsection (2) of this section, the employee shall be awarded statutory damages not to exceed Ten Thousand Dollars ($10,000.00) and shall be subject to such injunctive relief as may be appropriate.

( * * *34) An employer who is paying a wage differential in violation of this chapter shall not, in order to comply with this chapter, reduce the wage rate of any employee.

( * * *45) No employer may discharge, discriminate or in any way retaliate against any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this chapter, including an employee or applicant's refusal to provided wage history.

SECTION 3. Section 71-17-7, Mississippi Code of 1972, is amended as follows:

71-17-7. (1) A civil action brought under this chapter may be commenced no later than two (2) years from the day the employee knew or should have known his or her employer was in violation of this chapter.

(2) If an employee brings a claim under the Equal Pay Act of 1963, a separate action may not be maintained under this chapter. If an employee brings a claim under this chapter, then later initiates a claim under the Equal Pay Act of 1963, the action brought under this chapter shall be dismissed with prejudice. An employee who seeks relief under this chapter must first waive any right to relief under the Equal Pay Act of 1963.

(3) (a) For any action under this chapter, published precedents of the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit and federal district courts embracing the circuit court in which any action under this chapter is pending, deciding cases under the Equal Pay Act of 1963, after which this chapter is patterned, shall be considered mandatory authority and shall be followed by the circuit court in which the action is pending, until there is a contrary ruling interpreting this chapter by the Mississippi Supreme Court or the Mississippi Court of Appeals.

(b) If any section, paragraph, sentence, clause, phrase or any part of this chapter passed is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts thereof shall be in no manner affected thereby but shall remain in full force and effect.

SECTION 4. This act shall take effect and be in force from and after July 1, 2024.