Senator Jacob L. Anderegg proposes the following substitute bill:




Chief Sponsor: Jacob L. Anderegg

House Sponsor: ____________


8     General Description:
9          This bill modifies provisions related to employee pay in the state.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     requires certain employers in the state to adopt and disclose to each employee
14     uniform criteria that the employer uses to determine whether to change an
15     employee's compensation or benefits based on the employee's performance;
16          ▸     instructs the Department of Workforce Services to conduct a study on whether there
17     is a difference in pay between men and women in the state;
18          ▸     provides that the Department of Workforce Services shall create and maintain pay
19     indices for certain occupations that state the current pay range in the state for each
20     occupation; and
21          ▸     makes technical changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None

26     Utah Code Sections Affected:
27     AMENDS:
28          35A-1-104.5, as last amended by Laws of Utah 2015, Chapter 283
29          35A-4-312, as last amended by Laws of Utah 2016, Chapter 296
30          63I-2-235, as last amended by Laws of Utah 2016, Chapter 278
31     ENACTS:
32          34-52-101, Utah Code Annotated 1953
33          34-52-102, Utah Code Annotated 1953
34          34-52-201, Utah Code Annotated 1953
35          35A-5-501, Utah Code Annotated 1953

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 34-52-101 is enacted to read:

Part 1. General Provisions

41          34-52-101. Title.
42          This chapter is known as the "Employee Performance Act."
43          Section 2. Section 34-52-102 is enacted to read:
44          34-52-102. Definitions.
45          As used in this chapter:
46          (1) "Employee" means an employee who works an average of at least 30 hours per
47     week in a calendar year.
48          (2) "Employer" means a person that employs 15 or more individuals in the state for
49     each working day in each of 20 weeks or more in the current or preceding calendar year.
50          Section 3. Section 34-52-201 is enacted to read:
Part 2. Employee Evaluations

52          34-52-201. Written criteria required.
53          (1) Each employer shall adopt and disclose to each employee written criteria that the
54     employer uses to determine whether to change an employee's compensation or benefits based
55     on the employee's performance.
56          (2) An employer may adopt different criteria for each type of position, but shall apply

57     the criteria uniformly to each employee that holds the type of position to which the criteria
58     apply.
59          (3) An employer may not change the criteria described in the section that apply to an
60     employee less than six months before the day on which the employer considers whether to
61     change the employee's compensation or benefits based on the employee's performance.
62          Section 4. Section 35A-1-104.5 is amended to read:
63          35A-1-104.5. Other department duties -- Strategic plan for health system reform
64     -- Reporting suspected misuse of a social security number -- Wage study.
65          (1) The department shall work with the Department of Health, the Insurance
66     Department, the Governor's Office of Economic Development, and the Legislature to develop
67     the health system reform in accordance with Title 63N, Chapter 11, Health System Reform
68     Act.
69          (2) In the process of determining an individual's eligibility for a public benefit or
70     service under this title or under federal law, if the department determines that a valid Social
71     Security number is being used by an unauthorized individual, the department shall:
72          (a) inform the individual who the department determines to be the likely actual owner
73     of the social security number or, if the likely actual owner is a minor, the minor's parent or
74     guardian, of the suspected misuse; and
75          (b) subject to federal law, provide information of the suspected misuse to an
76     appropriate law enforcement agency responsible for investigating identity fraud.
77          (3) If the department learns or determines that providing information under Subsection
78     (2)(b) is prohibited by federal law, the department shall notify the Legislative Management
79     Committee.
80          (4) (a) The department shall conduct a study that analyzes any difference in pay
81     between men and women in the state.
82          (b) The study described in Subsection (4)(a) shall:
83          (i) use the most recent wage data for workers in the state available to the department;
84     and
85          (ii) to the extent possible, control for other variables, including education, years of
86     experience, occupation, and industry.
87          (c) The department shall present the study described in this Subsection (4) to the

88     Economic Development and Workforce Services Interim Committee and the Women in
89     Economy Commission no later than November 30, 2018.
90          (d) The Driver License Division shall, in accordance with federal law, coordinate with
91     the department to provide the department information necessary to complete the study
92     described in this Subsection (4).
93          Section 5. Section 35A-4-312 is amended to read:
94          35A-4-312. Records.
95          (1) (a) An employing unit shall keep true and accurate work records containing
96     information the department may prescribe by rule.
97          (b) A record shall be open to inspection and subject to being copied by the division or
98     its authorized representatives at a reasonable time and as often as necessary.
99          (c) An employing unit shall make a record available in the state for three years after the
100     calendar year in which the services are rendered.
101          (2) The division may require from an employing unit a sworn or unsworn report with
102     respect to a person employed by the employing unit that the division considers necessary for
103     the effective administration of this chapter.
104          (3) Except as provided in this section or in Sections 35A-4-103 and 35A-4-106,
105     information obtained under this chapter or obtained from an individual may not be published or
106     open to public inspection in a manner revealing the employing unit's or individual's identity.
107          (4) (a) The information obtained by the division under this section may not be used in
108     court or admitted into evidence in an action or proceeding, except:
109          (i) in an action or proceeding arising out of this chapter;
110          (ii) if the Labor Commission enters into a written agreement with the division under
111     Subsection (6)(b), in an action or proceeding by the Labor Commission to enforce:
112          (A) Title 34, Chapter 23, Employment of Minors;
113          (B) Title 34, Chapter 28, Payment of Wages;
114          (C) Title 34, Chapter 40, Utah Minimum Wage Act; or
115          (D) Title 34A, Utah Labor Code;
116          (iii) under the terms of a court order obtained under Subsection 63G-2-202(7) and
117     Section 63G-2-207; or
118          (iv) under the terms of a written agreement between the Office of State Debt Collection

119     and the division as provided in Subsection (5).
120          (b) The information obtained by the division under this section shall be disclosed to:
121          (i) a party to an unemployment insurance hearing before an administrative law judge of
122     the department or a review by the Workforce Appeals Board to the extent necessary for the
123     proper presentation of the party's case; or
124          (ii) an employer, upon request in writing for information concerning a claim for a
125     benefit with respect to a former employee of the employer.
126          (5) The information obtained by the division under this section may be disclosed to:
127          (a) an employee of the department in the performance of the employee's duties in
128     administering this chapter or other programs of the department;
129          (b) an employee of the Labor Commission for the purpose of carrying out the programs
130     administered by the Labor Commission;
131          (c) an employee of the Department of Commerce for the purpose of carrying out the
132     programs administered by the Department of Commerce;
133          (d) an employee of the governor's office or another state governmental agency
134     administratively responsible for statewide economic development, to the extent necessary for
135     economic development policy analysis and formulation;
136          (e) an employee of another governmental agency that is specifically identified and
137     authorized by federal or state law to receive the information for the purposes stated in the law
138     authorizing the employee of the agency to receive the information;
139          (f) an employee of a governmental agency or workers' compensation insurer to the
140     extent the information will aid in:
141          (i) the detection or avoidance of duplicate, inconsistent, or fraudulent claims against:
142          (A) a workers' compensation program; or
143          (B) public assistance funds; or
144          (ii) the recovery of overpayments of workers' compensation or public assistance funds;
145          (g) an employee of a law enforcement agency to the extent the disclosure is necessary
146     to avoid a significant risk to public safety or in aid of a felony criminal investigation;
147          (h) an employee of the State Tax Commission or the Internal Revenue Service for the
148     purposes of:
149          (i) audit verification or simplification;

150          (ii) state or federal tax compliance;
151          (iii) verification of a code or classification of the:
152          (A) 1987 Standard Industrial Classification Manual of the federal Executive Office of
153     the President, Office of Management and Budget; or
154          (B) 2002 North American Industry Classification System of the federal Executive
155     Office of the President, Office of Management and Budget; and
156          (iv) statistics;
157          (i) an employee or contractor of the department or an educational institution, or other
158     governmental entity engaged in workforce investment and development activities under the
159     Workforce Innovation and Opportunity Act, 29 U.S.C. Sec. 3101 et seq., for the purpose of:
160          (i) coordinating services with the department;
161          (ii) evaluating the effectiveness of those activities; and
162          (iii) measuring performance;
163          (j) an employee of the Governor's Office of Economic Development, for the purpose of
164     periodically publishing in the Directory of Business and Industry, the name, address, telephone
165     number, number of employees by range, code or classification of an employer, and type of
166     ownership of Utah employers;
167          (k) the public for any purpose following a written waiver by all interested parties of
168     their rights to nondisclosure;
169          (l) an individual whose wage data is submitted to the department by an employer, if no
170     information other than the individual's wage data and the identity of the employer who
171     submitted the information is provided to the individual;
172          (m) an employee of the Insurance Department for the purpose of administering Title
173     31A, Chapter 40, Professional Employer Organization Licensing Act;
174          (n) an employee of the Office of State Debt Collection for the purpose of collecting
175     state accounts receivable as provided in Section 63A-3-502;
176          (o) a creditor, under a court order, to collect on a judgment as provided in Section
177     35A-4-314; [or]
178          (p) an employee of the Wage and Hour Division of the United States Department of
179     Labor for the purpose of carrying out the programs administered by the Wage and Hour
180     Division as permitted under 20 C.F.R. 603.5(e), if the information is subject to the payment of

181     costs described in 20 C.F.R. 603.8(d) and:
182          (i) is limited to:
183          (A) the name and identifying information of an employer found by the department to
184     have misclassified one or more workers under Subsection 35A-4-204(3);
185          (B) the total number of misclassified workers for that employer; and
186          (C) the aggregate amount of misclassified wages for that employer;
187          (ii) an employer is given the opportunity to cure a misclassification of one or more
188     workers, in a manner established by division rule in accordance with Title 63G, Chapter 3,
189     Utah Administrative Rulemaking Act, before the information is disclosed as described in this
190     Subsection (5)(p); and
191          (iii) an annual report regarding the benefit to the state from disclosure of information
192     under this Subsection (5)(p) is provided to the department for inclusion in the department's
193     annual report described in Section 35A-1-109[.]; or
194          (q) an employee of the Driver License Division for purposes of obtaining data
195     necessary to complete the study described in Subsection 35A-1-104.5(4).
196          (6) Disclosure of private information under Subsection (4)(a)(ii) or Subsection (5),
197     with the exception of Subsections (5)(a), (g), and (o), may be made if:
198          (a) the division determines that the disclosure will not have a negative effect on:
199          (i) the willingness of employers to report wage and employment information; or
200          (ii) the willingness of individuals to file claims for unemployment benefits; and
201          (b) the agency enters into a written agreement with the division in accordance with
202     rules made by the department.
203          (7) (a) The employees of a division of the department other than the Workforce
204     Research and Analysis Division and the Unemployment Insurance Division or an agency
205     receiving private information from the division under this chapter are subject to the same
206     requirements of privacy and confidentiality and to the same penalties for misuse or improper
207     disclosure of the information as employees of the division.
208          (b) Use of private information obtained from the department by a person or for a
209     purpose other than one authorized in Subsection (4) or (5) violates Subsection 76-8-1301(4).
210          Section 6. Section 35A-5-501 is enacted to read:
Part 5. Occupational Pay Data

212          35A-5-501. Creation and maintenance of pay indices.
213          (1) (a) For each occupation in the Bureau of Labor Statistic's Standard Occupational
214     Classification System, the department shall create and maintain an index of the current pay
215     range for individuals employed in the occupation in the state.
216          (b) For each index described in Subsection (1)(a), the department shall include the
217     percentile distribution of wages in the occupation.
218          (2) The department shall:
219          (a) update each index described in Subsection (1) no later than July 1 each year; and
220          (b) make each index described in Subsection (1) available to the public on the
221     department's website.
222          (3) The department shall prepare and conduct an advertising campaign to promote the
223     availability and utility of the indices described in Subsection (1).
224          Section 7. Section 63I-2-235 is amended to read:
225          63I-2-235. Repeal dates -- Title 35A.
226          (1) Subsection 35A-1-104.5(4) is repealed December 1, 2018.
227          (2) Subsection 35A-4-312(5)(q) is repealed December 1, 2018.
228          [(1)] (3) Subsection 35A-8-604(6) is repealed October 1, 2020.
229          [(2) Title 35A, Chapter 8, Part 11, Methamphetamine Housing Reconstruction and
230     Rehabilitation Account Act, is repealed July 1, 2015.]
231          [(3) Section 35A-12-402 is repealed December 31, 2015.]