Chief Sponsor: Mark A. Wheatley

Senate Sponsor: ____________


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;
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:
27          None

28     Other Special Clauses:
29          None
30     Utah Code Sections Affected:
31     AMENDS:
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
34     ENACTS:
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) (a) "Compensation" means an amount or benefit an individual receives for
44     providing labor or service.
45          (b) "Compensation" includes an amount or benefit that:
46          (i) is fixed; or
47          (ii) calculated on a time, task, piece, commission, or other basis.
48          [(2)] (3) "Division" means the Labor Commission's Division of Antidiscrimination and
49     Labor.
50          [(3)] (4) "Employer" means a person employing 15 or more employees within the state
51     for each working day in each of 20 calendar weeks or more in the current or preceding calendar
52     year.
53          [(4)] (5) "Employment selection process" means the process by which an employer
54     selects an individual to be an employee for the employer.
55          [(5)] (6) "Initial selection process" means the receipt of information in a record from an
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.
58          [(6)] (7) "Record" means information that is:

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
71     conference.
72          (3) (a) If the division determines that a violation has occurred in violation of:
73          (i) Part 2, Requirements Related to Information, the division may order that the
74     employer:
75          [(i)] (A) cease and desist the action;
76          [(ii)] (B) pay a fine to the division of up to $500 for a violation, regardless of the
77     number of applicants affected by the violation; or
78          [(iii)] (C) comply with a combination of Subsections (3)(a)(i)(A) and [(ii).] (B); or
79          (ii) Part 4, Prohibition on Inquiry into Compensation History, the division shall:
80          (A) for the first offense, issue a warning;
81          (B) for the second offense, order that the employer pay a penalty of $500; and
82          (C) for the third or subsequent offense, order that the employer pay a penalty of $1,500.
83          (b) The division shall:
84          (i) retain 50% of a penalty payment described in Subsection (3)(a)(ii); and
85          (ii) pay 50% of a penalty payment described in Subsection (3)(a)(ii) to the aggrieved
86     individual.
87          [(b)] (c) Money [received] the division retains under this section shall be deposited as a
88     dedicated credit to the division to pay for the costs of administering this chapter.
89          (4) The commission may make rules in accordance with Title 63G, Chapter 3, Utah

90     Administrative Rulemaking Act, regarding:
91          (a) [the process to file a written complaint with the division; and] procedures under this
92     chapter;
93          (b) the terms defined in Section 34-46-102[.]; and
94          (c) the amount of a penalty imposed under Subsection (3)(a)(ii).
95          (5) Either party may file with the Division of Adjudication created in Section
96     34A-1-202 a written request for review of an order issued under Subsection (3), in accordance
97     with:
98          (a) Section 63G-4-301; and
99          (b) Title 34A, Chapter 1, Part 3, Adjudicative Proceedings.
100          (6) (a) The commission may employ counsel, appoint a representative, request the
101     attorney general, or request the county attorney for the county in which the final order is filed
102     and docketed, to represent the commission on an appeal or to enforce a judgment related to an
103     order under this section.
104          (b) If employed by or representing the commission outside the administrative process,
105     the counsel the commission employs, the attorney general, or the county representing the
106     commission shall be awarded:
107          (i) reasonable attorney fees; and
108          (ii) costs for:
109          (A) appeals when the commission prevails; and
110          (B) judgment enforcement proceedings.
111          Section 3. Section 34-46-401 is enacted to read:
Part 4. Prohibition on Inquiry into Compensation History

113          34-46-401. Prohibited Inquiry.
114          (1) An employer may not seek information regarding an applicant's current or previous
115     compensation from:
116          (a) the applicant;
117          (b) a person who currently or previously employed the applicant; or
118          (c) an employee of a person who currently or previously employed the applicant.
119          (2) This section does not apply to compensation information available to the public
120     under federal or state law.

121          (3) Nothing in this section prohibits an applicant from voluntarily disclosing the
122     applicant's current or previous compensation to a prospective employer.