Utah state senator, Jake Anderegg (R-Lehi), has introduced a multifaceted bill (S.B. 210)  – the “Employee Performance Act” – requiring equal pay for equal work.  According to the National Conference of State Legislatures, Utah is one of six states without an equal pay law.  If passed, the bill would apply to Utah employers with 15 or more employees.

Prior to introducing the bill, Utah media reported that Senator Anderegg believes fair-market pay benchmarks need to be established using state-collected data and intends to focus on ensuring men and women are paid equally during their first three years of employment. Senator Anderegg also said he would explore how performance evaluations impact pay but did not contemplate Utah actively regulating pay.

As introduced, SB 201 seeks to revise Utah law in three respects.

Employee Evaluations

In an apparent attempt to make the performance review process more uniform, gender-neutral, and transparent to employees, the bill requires:

• Employers to adopt and disclose to employees written performance evaluation criteria used in adjusting employee pay and benefits.

• Different criteria could be used for different types of positions, but the criteria must be applied “uniformly to each employee” holding the “type of position” to which the criteria apply.

• The criteria could not be changed less than six months prior to an employee evaluation where the employer considers whether to change employee pay or benefits.

Gender Wage Study

The bill also would require the Department of Workforce Services (DWS) to conduct a gender wage study to analyze any gender differences in pay, taking into consideration differences in such factors as education level, years of experience, occupation and industry.

For purposes of both the Wage Study and the pay indices described below, the bill amends existing regulations requiring employers to maintain and confidentially provide to DWS relevant pay data.

Occupational Pay Indices

As perhaps a step towards pay scales for private employers, the bill also directs DWS to create and publish indices of current pay ranges by occupation to be published and updated by July 1 each year, beginning in 2018.

While the bill does not specify any other pay factor to distinguish differences in pay, it provides that each index “shall include a separate pay range for at least every five years of experience in the occupation.” Thus for each occupation, the indices would provide the pay range for those with 1 to 5 years of experience, 6 to 10 years of experience, and so on.  DWS would also be required to conduct an advertising campaign to promote the “availability and utility of the indices.”

Unlike recent equal pay laws enacted in California, New York and elsewhere, the bill does not directly provide legal standards for pay. For example California’s Fair Pay Act requires those in “substantially similar” jobs to be paid equally, unless gender-neutral pay factors explain the entire pay difference.

The practical effect of the Employee Performance Act appears to be to provide employees and employers with additional information regarding fair pay. While the bill does not provide a new equal pay cause of action, it purportedly would provide both women and men data and information relevant to a pay discrimination claim under existing pay discrimination provisions of the Utah Antidiscrimination Act. 34A-5-106.