8 LONG TITLE
9 General Description:
10 This bill amends the Employment Selection Procedures Act to prohibit an employer
11 from inquiring into an applicant's compensation history.
12 Highlighted Provisions:
13 This bill:
14 ▸ defines terms;
15 ▸ prohibits an employer from seeking information regarding an applicant's
16 employment history from certain persons;
17 ▸ gives the Labor Commission's Division of Antidiscrimination and Labor
18 enforcement power;
19 ▸ permits an aggrieved individual to file a request for agency action;
20 ▸ permits either party to appeal an order made under the Employment Selection
21 Procedures Act;
22 ▸ provides for the Labor Commission to obtain representation on any appeal or to
23 enforce any judgment of an order made under the Employment Selection Procedures
24 Act; and
25 ▸ makes technical and conforming changes.
26 Money Appropriated in this Bill:
28 Other Special Clauses:
30 Utah Code Sections Affected:
32 34-46-102, as last amended by Laws of Utah 2010, Chapter 218
33 34-46-301, as enacted by Laws of Utah 2009, Chapter 174
35 34-46-401, Utah Code Annotated 1953
37 Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 34-46-102 is amended to read:
39 34-46-102. Definitions.
40 As used in this chapter:
41 (1) "Applicant" means an individual that provides information to an employer for the
42 purpose of obtaining employment.
43 (2) "Compensation" means the amounts or benefits due an employee for labor or
44 services, whether the amount is:
45 (a) fixed;
46 (b) ascertained on a time, task, piece, or commission basis; or
47 (c) based on some other method of calculating the amount.
51 for each working day in each of 20 calendar weeks or more in the current or preceding calendar
54 selects an individual to be an employee for the employer.
56 applicant that the employer uses to determine whether the applicant will be considered for a
57 second review for the position for which the applicant is applying.
59 (a) inscribed on a tangible medium; or
60 (b) (i) received or stored in an electronic or other medium; and
61 (ii) retrievable in perceivable form.
62 Section 2. Section 34-46-301 is amended to read:
63 34-46-301. Investigations -- Complaints -- Sanctions -- Rulemaking.
64 (1) The division may investigate an alleged violation of this chapter.
65 (2) (a) An individual claiming to be aggrieved by an action of an employer in violation
66 of this chapter may file with the division a request for agency action.
67 (b) On receipt of a request for agency action under Subsection (2)(a), the division:
68 (i) shall conduct an adjudicative proceeding pursuant to Title 63G, Chapter 4,
69 Administrative Procedures Act; and
70 (ii) may attempt to reach a settlement between the parties through a settlement
72 (3) (a) If the division determines that a violation has occurred:
73 (i) in violation of Part 2, Requirements Related to Information, the division may order
74 that the employer:
77 number of applicants affected by the violation; or
79 and (B); or
80 (ii) in violation of Part 4, Prohibition on Inquiry into Compensation History, the
81 division shall:
82 (A) for the first offense, issue a warning;
83 (B) for the second offense, order that the employer pay a penalty of $500; and
84 (C) for the third or subsequent offense, order that the employer pay a penalty of $1,500.
85 (b) The division shall:
86 (i) retain 50% of a penalty payment described in Subsection (3)(a)(ii); and
87 (ii) pay 50% of a penalty payment described in Subsection (3)(a)(ii) to the aggrieved
90 dedicated credit to the division to pay for the costs of administering this chapter.
91 (4) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
92 Administrative Rulemaking Act, regarding:
94 (a) procedures under this chapter;
95 (b) the terms defined in Section 34-46-102[
96 (c) the amount of a penalty imposed under Subsection (3)(a)(ii).
97 (5) Either party may file with the Division of Adjudication created in Section
98 34A-1-202 a written request for review of an order issued under Subsection (3), in accordance
100 (a) Section 63G-4-301; and
101 (b) Title 34A, Chapter 1, Part 3, Adjudicative Proceedings.
102 (6) (a) The commission may employ counsel, appoint a representative, or request the
103 attorney general or the county attorney for the county in which the final order is filed and
104 docketed to:
105 (i) represent the commission on any appeal; or
106 (ii) enforce any judgment related to an order under this section.
107 (b) If employed by or representing the commission outside the administrative process,
108 the counsel the commission employs, the attorney general, or the county representing the
109 commission, shall be awarded:
110 (i) reasonable attorney fees; and
111 (ii) costs for:
112 (A) appeals when the commission prevails; and
113 (B) judgment enforcement proceedings.
114 Section 3. Section 34-46-401 is enacted to read:
116 34-46-401. Prohibited inquiry.
117 (1) An employer may not seek information regarding an applicant's compensation
118 history from the applicant, the applicant's current or former employer, or an employee of the
119 applicant's current or former employer.
120 (2) This section does not apply to any compensation history available to the public
121 under federal or state law.
122 (3) Nothing in this section prohibits an applicant from voluntarily disclosing the
123 applicant's compensation history to a prospective employer.