Title 28
Labor and Labor Relations

Chapter 6
Wage Discrimination Based on Sex

§ 28-6-24. Self-evaluation by employer.

(a) Any employer against whom an action is brought alleging a violation of §§ 28-6-18(a) through (e) shall have an affirmative defense to all liability if the employer is able to demonstrate that the employer has conducted a good faith self-evaluation pursuant to the provisions of this subsection of the employer’s pay practices within the previous two (2) years and prior to commencement of the action and can demonstrate that any unlawful wage differentials revealed by its self-evaluation have been eliminated. For purposes of this subsection, an employer’s self-evaluation may be of the employer’s own design or on standard template or form to be issued by the department of labor and training, as long as the scope and detail of the self-evaluation reflects the exercise of due diligence by the employer to identify, prevent, and mitigate violations of this chapter in light of the size of the employer.

(1) In determining whether a self-evaluation reflects the exercise of due diligence by the employer, the factors the court shall consider include, but are not limited to: whether the evaluation includes all relevant jobs and employees within those relevant jobs; whether the employer’s analysis makes a reasonable effort to identify similar jobs and employees using a consistent, fact-based approach; whether the employer has tested explanatory factors for an unbiased and relevant relationship to pay; whether the evaluation takes into account all reasonably relevant and available information; and whether the evaluation is reasonably sophisticated in its analysis of potentially comparable work, employee compensation, and the application of the permissible reasons for wage differentials set forth in § 28-6-18(b). If an employer fails to retain the records necessary to show the manner in which it evaluated and applied these factors, it may give rise to an inference that the employer did not exercise due diligence in conducting its self-evaluation.

(2) In determining whether an employer has eliminated an unlawful wage differential revealed by its self-evaluation, the court shall determine whether the employer has adjusted salaries or wages in order that employees performing comparable work are paid equally and whether any salary or wage adjustments have been completed prior to commencement of the action. An employer shall have ninety (90) days from the date of completion of its self-evaluation to adjust wages beginning from the day in the pay period the self-evaluation was completed.

(b) The affirmative defense to liability set forth in subsection (a) of this section shall be available to employers beginning on January 1, 2023, and ending June 30, 2026. Thereafter, an employer who has conducted a self-evaluation and eliminated any unlawful differentials as provided in subsection (a) of this section shall not be liable for liquidated damages or compensatory damages under § 28-6-20 or civil penalties under § 28-6-21; provided, however, that nothing contained in this subsection (b) shall prevent an employee aggrieved by an unlawful wage differential from filing a civil action in any court of competent jurisdiction to obtain unpaid wages and equitable relief; provided, further, that in lieu of an employer being relieved of liability for liquidated damages and compensatory damages under § 28-6-20 or civil penalties under § 28-6-21, an employer who or that has conducted a self-evaluation and eliminated any unlawful differentials as provided in subsection (a) of this section, and compensated the employee for any unpaid wages, shall have an affirmative defense to all liability.

(c) Evidence that a self-evaluation has been conducted or that remedial steps have been undertaken in accordance with this section is not sufficient evidence, standing alone, to find a violation of §§ 28-6-18(a) through (e) that occurred prior to the date of the completion of the self-evaluation.

(d) An employer who has not completed a self-evaluation shall not be subject to any negative or adverse inference as a result of not having completed a self-evaluation.