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Rhode Island House Bill H5929

Rhode Island 2023 Regular Session

Rhode Island House Bill H5929 Compare Versions

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5-2023 -- H 5929 SUBSTITUTE A
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99 S TATE OF RHODE IS LAND
1010 IN GENERAL ASSEMBLY
1111 JANUARY SESSION, A.D. 2023
1212 ____________
1313
1414 A N A C T
1515 RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRAC TICES
1616 Introduced By: Representatives Tanzi, Boylan, Cruz, Speakman, Donovan, Vella-
1717 Wilkinson, Felix, Hull, Spears, and Potter
1818 Date Introduced: March 01, 2023
1919 Referred To: House Labor
2020
2121
2222 It is enacted by the General Assembly as follows:
2323 SECTION 1. Sections 28-5-6 and 28-5-7 of the General Laws in Chapter 28-5 entitled 1
2424 "Fair Employment Practices" are hereby amended to read as follows: 2
2525 28-5-6. Definitions. 3
2626 When used in this chapter: 4
2727 (1) “Age” means anyone who is at least forty (40) years of age. 5
2828 (2) “Because of sex” or “on the basis of sex” includes, but is not limited to, because of or 6
2929 on the basis of pregnancy, childbirth, or related medical conditions, and women affected by 7
3030 pregnancy, childbirth, or related medical conditions shall be treated the same for all employment 8
3131 related purposes, including receipt of benefits under fringe benefit programs, as other persons not 9
3232 so affected but similar in their ability or inability to work, and nothing in this chapter shall be 10
3333 interpreted to permit otherwise. 11
3434 (3) “Commission” means the Rhode Island commission against discrimination created by 12
3535 this chapter. 13
3636 (4) "Confidential" means to remain secret and not to be disclosed to another person or 14
3737 entity. 15
3838 (4)(5) “Conviction” means, for the purposes of this chapter only, any verdict or finding of 16
3939 guilt after a criminal trial or any plea of guilty or nolo contendere to a criminal charge. 17
4040 (5)(6) “Disability” means a disability as defined in § 42-87-1. 18
4141 (6)(7) “Discriminate” includes segregate or separate. 19
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4343
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4545 (7)(8) “Employee” does not include any individual employed by his or her parents, spouse, 1
4646 or child, or in the domestic service of any person. 2
4747 (8)(9)(i) “Employer” includes the state and all political subdivisions of the state and any 3
4848 person in this state employing four (4) or more individuals, and any person acting in the interest of 4
4949 an employer directly or indirectly. 5
5050 (ii) Nothing in this subdivision shall be construed to apply to a religious corporation, 6
5151 association, educational institution, or society with respect to the employment of individuals of its 7
5252 religion to perform work connected with the carrying on of its activities. 8
5353 (9)(10) “Employment agency” includes any person undertaking, with or without 9
5454 compensation, to procure opportunities to work, or to procure, recruit, refer, or place employees. 10
5555 (10)(11) “Firefighter” means an employee the duties of whose position include work 11
5656 connected with the control and extinguishment of fires or the maintenance and use of firefighting 12
5757 apparatus and equipment, including an employee engaged in this activity who is transferred or 13
5858 promoted to a supervisory or administrative position. 14
5959 (11)(12) “Gender identity or expression” includes a person’s actual or perceived gender, 15
6060 as well as a person’s gender identity, gender-related self image, gender-related appearance, or 16
6161 gender-related expression; whether or not that gender identity, gender-related self image, gender-17
6262 related appearance, or gender-related expression is different from that traditionally associated with 18
6363 the person’s sex at birth. 19
6464 (12)(13) “Labor organization” includes any organization that exists for the purpose, in 20
6565 whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms 21
6666 or conditions of employment, or of other mutual aid or protection in relation to employment. 22
6767 (13)(14) “Law enforcement officer” means an employee the duties of whose position 23
6868 include investigation, apprehension, or detention of individuals suspected or convicted of offenses 24
6969 against the criminal laws of the state, including an employee engaged in such activity who is 25
7070 transferred or promoted to a supervisory or administrative position. For the purpose of this 26
7171 subdivision, “detention” includes the duties of employees assigned to guard individua ls 27
7272 incarcerated in any penal institution. 28
7373 (15) "Non-disparagement agreement" means an agreement which restricts an individual 29
7474 from taking any action to include, but not be limited to, speaking or publicizing information that 30
75-negatively impacts the other party to the agreement to include the reputation, products, services, 31
75+negatively impacts the other party to the agreement, to include the reputation, products, services, 31
7676 employees and management of the protected party. 32
7777 (14)(16) “Person” includes one or more individuals, partnerships, associations, 33
7878 organizations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers. 34
7979
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8282 (15)(17) “Religion” includes all aspects of religious observance and practice, as well as 1
8383 belief, unless an employer, union, or employment agency demonstrates that it is unable to 2
8484 reasonably accommodate to an employee’s or prospective employee’s or union member’s religious 3
8585 observance or practice without undue hardship on the conduct of its business. 4
8686 (16)(18) “Sexual orientation” means having or being perceived as having an orientation for 5
8787 heterosexuality, bisexuality, or homosexuality. 6
8888 (17)(19) The terms, as used regarding persons with disabilities: 7
8989 (i) “Auxiliary aids and services” and “reasonable accommodation” shall have the same 8
9090 meaning as those items are defined in § 42-87-1.1; and 9
9191 (ii) “Hardship” means an “undue hardship” as defined in § 42-87-1.1. 10
9292 28-5-7. Unlawful employment practices. 11
9393 It shall be an unlawful employment practice: 12
9494 (1) For any employer: 13
9595 (i) To refuse to hire any applicant for employment because of his or her race or color, 14
9696 religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 15
9797 ancestral origin; 16
9898 (ii) Because of those reasons, to discharge an employee or discriminate against him or her 17
9999 with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any 18
100100 other matter directly or indirectly related to employment. However, if an insurer or employer 19
101101 extends insurance-related benefits to persons other than or in addition to the named employee, 20
102102 nothing in this subdivision shall require those benefits to be offered to unmarried partners of named 21
103103 employees; 22
104104 (iii) In the recruiting of individuals for employment or in hiring them, to utilize any 23
105105 employment agency, placement service, training school or center, labor organization, or any other 24
106106 employee referring source that the employer knows, or has reasonable cause to know, discriminates 25
107107 against individuals because of their race or color, religion, sex, sexual orientation, gender identity 26
108108 or expression, disability, age, or country of ancestral origin; 27
109109 (iv) To refuse to reasonably accommodate an employee’s or prospective employee’s 28
110110 disability unless the employer can demonstrate that the accommodation would pose a hardship on 29
111111 the employer’s program, enterprise, or business; or 30
112112 (v) When an employee has presented to the employer an internal complaint alleging 31
113113 harassment in the workplace on the basis of race or color, religion, sex, disability, age, sexual 32
114114 orientation, gender identity or expression, or country of ancestral origin, to refuse to disclose in a 33
115115 timely manner in writing to that employee the disposition of the complaint, including a description 34
116116
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119119 of any action taken in resolution of the complaint; provided, however, no other personnel 1
120120 information shall be disclosed to the complainant; or 2
121121 (vi) To require an employee as a condition of employment, to execute a nondisclosure 3
122-agreement that requires alleged violations of civil rights remain confidential, or a non-4
123-disparagement agreement concerning alleged violations of civil rights or alleged unlawful conduct, 5
124-or any agreement with a clause that requires alleged violations of civil rights remain confidential. 6
125-Any contract provision in violation of this subsection shall be void as a violation of public policy. 7
126-(2)(i) For any employment agency to fail or refuse to properly classify or refer for 8
127-employment or otherwise discriminate against any individual because of his or her race or color, 9
128-religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 10
129-ancestral origin; or 11
130-(ii) For any employment agency, placement service, training school or center, labor 12
131-organization, or any other employee referring source to comply with an employer’s request for the 13
132-referral of job applicants if the request indicates, either directly or indirectly, that the employer will 14
133-not afford full and equal employment opportunities to individuals regardless of their race or color, 15
134-religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 16
135-ancestral origin; 17
136-(3) For any labor organization: 18
137-(i) To deny full and equal membership rights to any applicant for membership because of 19
138-his or her race or color, religion, sex, sexual orientation, gender identity or expression, disability, 20
139-age, or country of ancestral origin; 21
140-(ii) Because of those reasons, to deny a member full and equal membership rights, expel 22
141-him or her from membership, or otherwise discriminate in any manner against him or her with 23
142-respect to his or her hire, tenure, compensation, terms, conditions or privileges of employment, or 24
143-any other matter directly or indirectly related to membership or employment, whether or not 25
144-authorized or required by the constitution or bylaws of the labor organization or by a collective 26
145-labor agreement or other contract; 27
146-(iii) To fail or refuse to classify properly or refer for employment, or otherwise to 28
147-discriminate against any member because of his or her race or color, religion, sex, sexual 29
148-orientation, gender identity or expression, disability, age, or country of ancestral origin; or 30
149-(iv) To refuse to reasonably accommodate a member’s or prospective member’s disability 31
150-unless the labor organization can demonstrate that the accommodation would pose a hardship on 32
151-the labor organization’s program, enterprise, or business; 33
152-(4) Except where based on a bona fide occupational qualification certified by the 34
122+agreement or an agreement with a clause, that requires alleged violations of civil rights remain 4
123+confidential, or a non-disparagement agreement concerning alleged violations of civil rights. Any 5
124+contract provision in violation of this subsection shall be void as a violation of public policy. 6
125+(2)(i) For any employment agency to fail or refuse to properly classify or refer for 7
126+employment or otherwise discriminate against any individual because of his or her race or color, 8
127+religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 9
128+ancestral origin; or 10
129+(ii) For any employment agency, placement service, training school or center, labor 11
130+organization, or any other employee referring source to comply with an employer’s request for the 12
131+referral of job applicants if the request indicates, either directly or indirectly, that the employer will 13
132+not afford full and equal employment opportunities to individuals regardless of their race or color, 14
133+religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 15
134+ancestral origin; 16
135+(3) For any labor organization: 17
136+(i) To deny full and equal membership rights to any applicant for membership because of 18
137+his or her race or color, religion, sex, sexual orientation, gender identity or expression, disability, 19
138+age, or country of ancestral origin; 20
139+(ii) Because of those reasons, to deny a member full and equal membership rights, expel 21
140+him or her from membership, or otherwise discriminate in any manner against him or her with 22
141+respect to his or her hire, tenure, compensation, terms, conditions or privileges of employment, or 23
142+any other matter directly or indirectly related to membership or employment, whether or not 24
143+authorized or required by the constitution or bylaws of the labor organization or by a collective 25
144+labor agreement or other contract; 26
145+(iii) To fail or refuse to classify properly or refer for employment, or otherwise to 27
146+discriminate against any member because of his or her race or color, religion, sex, sexual 28
147+orientation, gender identity or expression, disability, age, or country of ancestral origin; or 29
148+(iv) To refuse to reasonably accommodate a member’s or prospective member’s disability 30
149+unless the labor organization can demonstrate that the accommodation would pose a hardship on 31
150+the labor organization’s program, enterprise, or business; 32
151+(4) Except where based on a bona fide occupational qualification certified by the 33
152+commission or where necessary to comply with any federal mandated affirmative action programs, 34
153153
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156-commission or where necessary to comply with any federal mandated affirmative action programs, 1
157-for any employer or employment agency, labor organization, placement service, training school or 2
158-center, or any other employee referring source, prior to employment or admission to membership 3
159-of any individual, to: 4
160-(i) Elicit, or attempt to elicit, any information directly or indirectly pertaining to his or her 5
161-race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or 6
162-country of ancestral origin; 7
163-(ii) Make or keep a record of his or her race or color, religion, sex, sexual orientation, 8
164-gender identity or expression, disability, age, or country of ancestral origin; 9
165-(iii) Use any form of application for employment, or personnel or membership blank 10
166-containing questions or entries directly or indirectly pertaining to race or color, religion, sex, sexual 11
167-orientation, gender identity or expression, disability, age, or country of ancestral origin; 12
168-(iv) Print or publish, or cause to be printed or published, any notice or advertisement 13
169-relating to employment or membership indicating any preference, limitation, specification, or 14
170-discrimination based upon race or color, religion, sex, sexual orientation, gender identity or 15
171-expression, disability, age, or country of ancestral origin; or 16
172-(v) Establish, announce, or follow a policy of denying or limiting, through a quota system 17
173-or otherwise, employment or membership opportunities of any group because of the race or color, 18
174-religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 19
175-ancestral origin of that group; 20
176-(5) For any employer or employment agency, labor organization, placement service, 21
177-training school or center, or any other employee referring source to discriminate in any manner 22
178-against any individual because he or she has opposed any practice forbidden by this chapter, or 23
179-because he or she has made a charge, testified, or assisted in any manner in any investigation, 24
180-proceeding, or hearing under this chapter; 25
181-(6) For any person, whether or not an employer, employment agency, labor organization, 26
182-or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to 27
183-be an unlawful employment practice, or to obstruct or prevent any person from complying with the 28
184-provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly or 29
185-indirectly to commit any act declared by this section to be an unlawful employment practice; 30
186-(7) For any employer to include on any application for employment, except applications 31
187-for law enforcement agency positions or positions related to law enforcement agencies, a question 32
188-inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been 33
189-arrested, charged with or convicted of any crime; provided, that: 34
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156+for any employer or employment agency, labor organization, placement service, training school or 1
157+center, or any other employee referring source, prior to employment or admission to membership 2
158+of any individual, to: 3
159+(i) Elicit, or attempt to elicit, any information directly or indirectly pertaining to his or her 4
160+race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or 5
161+country of ancestral origin; 6
162+(ii) Make or keep a record of his or her race or color, religion, sex, sexual orientation, 7
163+gender identity or expression, disability, age, or country of ancestral origin; 8
164+(iii) Use any form of application for employment, or personnel or membership blank 9
165+containing questions or entries directly or indirectly pertaining to race or color, religion, sex, sexual 10
166+orientation, gender identity or expression, disability, age, or country of ancestral origin; 11
167+(iv) Print or publish, or cause to be printed or published, any notice or advertisement 12
168+relating to employment or membership indicating any preference, limitation, specification, or 13
169+discrimination based upon race or color, religion, sex, sexual orientation, gender identity or 14
170+expression, disability, age, or country of ancestral origin; or 15
171+(v) Establish, announce, or follow a policy of denying or limiting, through a quota system 16
172+or otherwise, employment or membership opportunities of any group because of the race or color, 17
173+religion, sex, sexual orientation, gender identity or expression, disability, age, or country of 18
174+ancestral origin of that group; 19
175+(5) For any employer or employment agency, labor organization, placement service, 20
176+training school or center, or any other employee referring source to discriminate in any manner 21
177+against any individual because he or she has opposed any practice forbidden by this chapter, or 22
178+because he or she has made a charge, testified, or assisted in any manner in any investigation, 23
179+proceeding, or hearing under this chapter; 24
180+(6) For any person, whether or not an employer, employment agency, labor organization, 25
181+or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to 26
182+be an unlawful employment practice, or to obstruct or prevent any person from complying with the 27
183+provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly or 28
184+indirectly to commit any act declared by this section to be an unlawful employment practice; 29
185+(7) For any employer to include on any application for employment, except applications 30
186+for law enforcement agency positions or positions related to law enforcement agencies, a question 31
187+inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been 32
188+arrested, charged with or convicted of any crime; provided, that: 33
189+(i) If a federal or state law or regulation creates a mandatory or presumptive disqualification 34
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193-(i) If a federal or state law or regulation creates a mandatory or presumptive disqualification 1
194-from employment based on a person’s conviction of one or more specified criminal offenses, an 2
195-employer may include a question or otherwise inquire whether the applicant has ever been 3
196-convicted of any of those offenses; or 4
197-(ii) If a standard fidelity bond or an equivalent bond is required for the position for which 5
198-the applicant is seeking employment and his or her conviction of one or more specified criminal 6
199-offenses would disqualify the applicant from obtaining such a bond, an employer may include a 7
200-question or otherwise inquire whether the applicant has ever been convicted of any of those 8
201-offenses; and 9
202-(iii) Notwithstanding, any employer may ask an applicant for information about his or her 10
203-criminal convictions at the first interview or thereafter, in accordance with all applicable state and 11
204-federal laws; 12
205-(8)(i) For any person who or that, on June 7, 1988, is providing either by direct payment 13
206-or by making contributions to a fringe benefit fund or insurance program, benefits in violation with 14
207-§§ 28-5-6, 28-5-7 and 28-5-38, until the expiration of a period of one year from June 7, 1988, or if 15
208-there is an applicable collective bargaining agreement in effect on June 7, 1988, until the 16
209-termination of that agreement, in order to come into compliance with §§ 28-5-6, 28-5-7 and 28-5-17
210-38, to reduce the benefits or the compensation provided any employee on June 7, 1988, either 18
211-directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance 19
212-program. 20
213-(ii) Where the costs of these benefits on June 7, 1988, are apportioned between employers 21
214-and employees, the payments or contributions required to comply with §§ 28-5-6, 28-5-7 and 28-22
215-5-38 may be made by employers and employees in the same proportion. 23
216-(iii) Nothing in this section shall prevent the readjustment of benefits or compensation for 24
217-reasons unrelated to compliance with §§ 28-5-6, 28-5-7 and 28-5-38. 25
218-SECTION 2. This act shall take effect upon passage. 26
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193+from employment based on a person’s conviction of one or more specified criminal offenses, an 1
194+employer may include a question or otherwise inquire whether the applicant has ever been 2
195+convicted of any of those offenses; or 3
196+(ii) If a standard fidelity bond or an equivalent bond is required for the position for which 4
197+the applicant is seeking employment and his or her conviction of one or more specified criminal 5
198+offenses would disqualify the applicant from obtaining such a bond, an employer may include a 6
199+question or otherwise inquire whether the applicant has ever been convicted of any of those 7
200+offenses; and 8
201+(iii) Notwithstanding, any employer may ask an applicant for information about his or her 9
202+criminal convictions at the first interview or thereafter, in accordance with all applicable state and 10
203+federal laws; 11
204+(8)(i) For any person who or that, on June 7, 1988, is providing either by direct payment 12
205+or by making contributions to a fringe benefit fund or insurance program, benefits in violation with 13
206+§§ 28-5-6, 28-5-7 and 28-5-38, until the expiration of a period of one year from June 7, 1988, or if 14
207+there is an applicable collective bargaining agreement in effect on June 7, 1988, until the 15
208+termination of that agreement, in order to come into compliance with §§ 28-5-6, 28-5-7 and 28-5-16
209+38, to reduce the benefits or the compensation provided any employee on June 7, 1988, either 17
210+directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance 18
211+program. 19
212+(ii) Where the costs of these benefits on June 7, 1988, are apportioned between employers 20
213+and employees, the payments or contributions required to comply with §§ 28-5-6, 28-5-7 and 28-21
214+5-38 may be made by employers and employees in the same proportion. 22
215+(iii) Nothing in this section shall prevent the readjustment of benefits or compensation for 23
216+reasons unrelated to compliance with §§ 28-5-6, 28-5-7 and 28-5-38. 24
217+SECTION 2. This act shall take effect upon passage. 25
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225224 EXPLANATION
226225 BY THE LEGISLATIVE COUNCIL
227226 OF
228227 A N A C T
229228 RELATING TO LABOR AND LABOR RELATIONS -- FAIR EMPLOYMENT PRAC TICES
230229 ***
231-This act would prohibit an employer from requiring an employee to execute a 1
232-nondisclosure agreement or non-disparagement agreement, regarding alleged violations of civil 2
233-rights or criminal conduct, as a condition of employment. It would also add the definition of 3
234-"confidential" to the fair employment practices statute. 4
235-This act would take effect upon passage. 5
230+This act would forbid an employer to require an employee to execute a nondisclosure 1
231+agreement or non-disparagement agreement, regarding alleged violations of civil rights or criminal 2
232+conduct, as a condition of employment. 3
233+This act would take effect upon passage. 4
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