§ 22-2-2-4 — Rates; discrimination

(a) No employer having employees subject to
any provisions of this section shall discriminate, within any
establishment in which employees are employed, between employees
on the basis of sex by paying to employees in such establishment a rate
less than the rate at which the employer pays wages to employees of the
opposite sex in such establishment for equal work on jobs the
performance of which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions, except
where such payment is made pursuant to:
(1) a seniority system;
(2) a merit system;
(3) a system which measures earnings by quantity or quality of
production; or
(4) a differential based on any other factor other than sex.
(b) An employer who is paying a wage rate differential in violation
of subsection (a) shall not, in order to comply with subsection (a),
reduce the wage rate of any employee, and no labor organization, or its
agents, representing employees of an employer having employees
subject to subsection (a) shall cause or attempt to cause such an
employer to discriminate against an employee in violation of
subsection (a).
(c) Except as provided in subsection (d), every employer employing
at least two (2) employees during a work week shall, in any work week
in which the employer is subject to this chapter, pay each of the
employees in any work week beginning on or after June 30, 2007,
wages of not less than the minimum wage payable under the federal
Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.).
(d) An employer subject to subsection (c) is permitted to apply a tip
credit in determining the amount of cash wage paid to tipped
employees. In determining the wage an employer is required to pay a
tipped employee, the amount paid the employee by the employee's
employer must be an amount equal to:
(1) the cash wage paid the employee, which for purposes of the
determination may be not less than the cash wage required to be
paid to employees covered under the federal Fair Labor Standards
Act of 1938, as amended (29 U.S.C. 203(m)(1)) on August 20,
1996, which amount is two dollars and thirteen cents ($2.13) an
hour; and
(2) an additional amount on account of the tips received by the
employee, which amount is equal to the difference between the
wage specified in subdivision (1) and the wage in effect under
subsection (c).
An employer is responsible for supporting the amount of tip credit
taken through reported tips by the employees.
(e) This section does not apply if an employee:
(1) provides companionship services to the aged and infirm (as
defined in 29 CFR 552.6); and
(2) is employed by an employer or agency other than the family
or household using the companionship services, as provided in 29
CFR 552.109 (a).
(f) Except as otherwise provided in this section, no employer shall
employ any employee for a work week longer than forty (40) hours
unless the employee receives compensation for employment in excess
of forty (40) hours at a rate not less than one and one-half (1.5) times
the regular rate at which the employee is employed.
(g) For purposes of this section the following apply:
(1) "Overtime compensation" means the compensation required
by subsection (f).
(2) "Compensatory time" and "compensatory time off" mean
hours during which an employee is not working, which are not
counted as hours worked during the applicable work week or
other work period for purposes of overtime compensation, and for
which the employee is compensated at the employee's regular
rate.
(3) "Regular rate" means the rate at which an employee is
employed is considered to include all remuneration for
employment paid to, or on behalf of, the employee, but is not
considered to include the following:
(A) Sums paid as gifts, payments in the nature of gifts made at
Christmas time or on other special occasions, as a reward for
service, the amounts of which are not measured by or
dependent on hours worked, production, or efficiency.
(B) Payments made for occasional periods when no work is
performed due to vacation, holiday, illness, failure of the
employer to provide sufficient work, or other similar cause,
reasonable payments for traveling expenses, or other expenses,
incurred by an employee in the furtherance of the employer's
interests and properly reimbursable by the employer, and other
similar payments to an employee which are not made as
compensation for the employee's hours of employment.
(C) Sums paid in recognition of services performed during a
given period if:
(i) both the fact that payment is to be made and the amount of
the payment are determined at the sole discretion of the
employer at or near the end of the period and not pursuant to
any prior contract, agreement, or promise causing the
employee to expect the payments regularly;
(ii) the payments are made pursuant to a bona fide profit
sharing plan or trust or bona fide thrift or savings plan,
meeting the requirements of the administrator set forth in
appropriately issued regulations, having due regard among
other relevant factors, to the extent to which the amounts paid
to the employee are determined without regard to hours of
work, production, or efficiency; or
(iii) the payments are talent fees paid to performers, including
announcers, on radio and television programs.
(D) Contributions irrevocably made by an employer to a trustee
or third person pursuant to a bona fide plan for providing old
age, retirement, life, accident, or health insurance or similar
benefits for employees.
(E) Extra compensation provided by a premium rate paid for
certain hours worked by the employee in any day or work week
because those hours are hours worked in excess of eight (8) in
a day or in excess of the maximum work week applicable to the
employee under subsection (f) or in excess of the employee's
normal working hours or regular working hours, as the case
may be.
(F) Extra compensation provided by a premium rate paid for
work by the employee on Saturdays, Sundays, holidays, or
regular days of rest, or on the sixth or seventh day of the work
week, where the premium rate is not less than one and one-half
(1.5) times the rate established in good faith for like work
performed in nonovertime hours on other days.
(G) Extra compensation provided by a premium rate paid to the
employee, in pursuance of an applicable employment contract
or collective bargaining agreement, for work outside of the
hours established in good faith by the contract or agreement as
the basic, normal, or regular workday (not exceeding eight (8)
hours) or work week (not exceeding the maximum work week
applicable to the employee under subsection (f)) where the
premium rate is not less than one and one-half (1.5) times the
rate established in good faith by the contract or agreement for
like work performed during the workday or work week.
(h) No employer shall be considered to have violated subsection (f)
by employing any employee for a work week in excess of that specified
in subsection (f) without paying the compensation for overtime
employment prescribed therein if the employee is so employed:
(1) in pursuance of an agreement, made as a result of collective
bargaining by representatives of employees certified as bona fide
by the National Labor Relations Board, which provides that no
employee shall be employed more than one thousand forty (1,040)
hours during any period of twenty-six (26) consecutive weeks; or
(2) in pursuance of an agreement, made as a result of collective
bargaining by representatives of employees certified as bona fide
by the National Labor Relations Board, which provides that
during a specified period of fifty-two (52) consecutive weeks the
employee shall be employed not more than two thousand two
hundred forty (2,240) hours and shall be guaranteed not less than
one thousand eight hundred forty (1,840) hours (or not less than
forty-six (46) weeks at the normal number of hours worked per
week, but not less than thirty (30) hours per week) and not more
than two thousand eighty (2,080) hours of employment for which
the employee shall receive compensation for all hours guaranteed
or worked at rates not less than those applicable under the
agreement to the work performed and for all hours in excess of
the guaranty which are also in excess of the maximum work week
applicable to the employee under subsection (f) or two thousand
eighty (2,080) in that period at rates not less than one and
one-half (1.5) times the regular rate at which the employee is
employed.
(i) No employer shall be considered to have violated subsection (f)
by employing any employee for a work week in excess of the maximum
work week applicable to the employee under subsection (f) if the
employee is employed pursuant to a bona fide individual contract, or
pursuant to an agreement made as a result of collective bargaining by
representatives of employees, if the duties of the employee necessitate
irregular hours of work, and the contract or agreement includes the
following:
(1) Specifies a regular rate of pay of not less than the minimum
hourly rate provided in subsections (c) and (d) (whichever is
applicable) and compensation at not less than one and one-half
(1.5) times that rate for all hours worked in excess of the
maximum work week.
(2) Provides a weekly guaranty of pay for not more than sixty (60)
hours based on the rates so specified.
(j) No employer shall be considered to have violated subsection (f)
by employing any employee for a work week in excess of the maximum
work week applicable to the employee under that subsection if,
pursuant to an agreement or understanding arrived at between the
employer and the employee before performance of the work, the
amount paid to the employee for the number of hours worked by the
employee in the work week in excess of the maximum work week
applicable to the employee under that subsection:
(1) in the case of an employee employed at piece rates, is
computed at piece rates not less than one and one-half (1.5) times
the bona fide piece rates applicable to the same work when
performed during nonovertime hours;
(2) in the case of an employee performing two (2) or more kinds
of work for which different hourly or piece rates have been
established, is computed at rates not less than one and one-half
(1.5) times those bona fide rates applicable to the same work
when performed during nonovertime hours; or
(3) is computed at a rate not less than one and one-half (1.5) times
the rate established by the agreement or understanding as the
basic rate to be used in computing overtime compensation
thereunder, provided that the rate so established shall be
substantially equivalent to the average hourly earnings of the
employee, exclusive of overtime premiums, in the particular work
over a representative period of time;
and if the employee's average hourly earnings for the work week
exclusive of payments described in this section are not less than the
minimum hourly rate required by applicable law, and extra overtime
compensation is properly computed and paid on other forms of
additional pay required to be included in computing the regular rate.
(k) Extra compensation paid as described in this section shall be
creditable toward overtime compensation payable pursuant to this
section.
(l) No employer shall be considered to have violated subsection (f)
by employing any employee of a retail or service establishment for a
work week in excess of the applicable work week specified therein, if:
(1) the regular rate of pay of the employee is in excess of one and
one-half (1.5) times the minimum hourly rate applicable to the
employee under section 2 of this chapter; and
(2) more than half of the employee's compensation for a
representative period (not less than one (1) month) represents
commissions on goods or services.
In determining the proportion of compensation representing
commissions, all earnings resulting from the application of a bona fide
commission rate shall be considered commissions on goods or services
without regard to whether the computed commissions exceed the draw
or guarantee.
(m) No employer engaged in the operation of a hospital or an
establishment which is an institution primarily engaged in the care of
the sick, the aged, or individuals with a mental illness or defect who
reside on the premises shall be considered to have violated subsection
(f) if, pursuant to an agreement or understanding arrived at between the
employer and the employee before performance of the work, a work
period of fourteen (14) consecutive days is accepted in lieu of the work
week of seven (7) consecutive days for purposes of overtime
computation and if, for the employee's employment in excess of eight
(8) hours in any workday and in excess of eighty (80) hours in that
fourteen (14) day period, the employee receives compensation at a rate
not less than one and one-half (1.5) times the regular rate at which the
employee is employed.
(n) No employer shall employ any employee in domestic service in
one (1) or more households for a work week longer than forty (40)
hours unless the employee receives compensation for that employment
in accordance with subsection (f).
(o) In the case of an employee of an employer engaged in the
business of operating a street, a suburban or interurban electric railway,
or a local trolley or motorbus carrier (regardless of whether or not the
railway or carrier is public or private or operated for profit or not for
profit), in determining the hours of employment of such an employee
to which the rate prescribed by subsection (f) applies, there shall be
excluded the hours the employee was employed in charter activities by
the employer if both of the following apply:
(1) The employee's employment in the charter activities was
pursuant to an agreement or understanding with the employer
arrived at before engaging in that employment.
(2) If employment in the charter activities is not part of the
employee's regular employment.
(p) Any employer may employ any employee for a period or periods
of not more than ten (10) hours in the aggregate in any work week in
excess of the maximum work week specified in subsection (f) without
paying the compensation for overtime employment prescribed in
subsection (f), if during that period or periods the employee is
receiving remedial education that:
(1) is provided to employees who lack a high school diploma or
educational attainment at the eighth grade level;
(2) is designed to provide reading and other basic skills at an
eighth grade level or below; and
(3) does not include job specific training.
(q) Subsection (f) does not apply to an employee of a motion picture
theater.
(r) Subsection (f) does not apply to an employee of a seasonal
amusement or recreational establishment, an organized camp, or a
religious or nonprofit educational conference center that is exempt
under the federal Fair Labor Standards Act of 1938, as amended (29
U.S.C. 213).
(s) Subsection (f) does not apply to an employee of an air carrier
subject to Title II of the federal Railway Labor Act (45 U.S.C. 181 et
seq.) to the extent that the hours worked by the employee during a work
week in excess of forty (40) hours are not required by the air carrier but
are arranged through a voluntary agreement between employees to
trade or reassign their scheduled work hours.
Formerly: Acts 1965, c.134, s.4; Acts 1967, c.153, s.2. As
amended by Acts 1977, P.L.259, SEC.2; P.L.19-1986, SEC.38;
P.L.133-1990, SEC.2; P.L.39-1998, SEC.1; P.L.1-1999, SEC.53;
P.L.234-1999, SEC.6; P.L.99-2007, SEC.182; P.L.165-2007, SEC.1;
P.L.38-2019, SEC.1; P.L.147-2020, SEC.14.