Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1696586690639.pdf (United States)
II 115TH CONGRESS 1ST SESSION S. 819 To amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes.
IN THE SENATE OF THE UNITED STATES APRIL 4, 2017 Mrs. MURRAY (for herself, Mr. SCHUMER, Mr. DURBIN, Mr. MENENDEZ, Mr. COONS, Mr. BROWN, Mr. UDALL, Mr. CASEY, Ms. BALDWIN, Mr. VAN HOLLEN, Mrs. SHAHEEN, Mrs. GILLIBRAND, Ms. KLOBUCHAR, Mr. MAR- KEY, Ms. HIRONO, Mrs. FEINSTEIN, Mr. MANCHIN, Mr. HEINRICH, Mr. BLUMENTHAL, Mr. LEAHY, Mr. BOOKER, Mr. REED, Mr. SANDERS, Ms. WARREN, Ms. STABENOW, Mr. CARPER, Mr. WHITEHOUSE, Mrs. MCCAS- KILL, Ms. CANTWELL, Mr. FRANKEN, Mr. WARNER, Ms. HARRIS, Mr. MURPHY, Mr. NELSON, Mr. WYDEN, Mr. KAINE, Ms. HASSAN, Mr. MERKLEY, Mr. TESTER, Ms. DUCKWORTH, and Mr. BENNET) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes.
1 2 Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assembled SECTION 1.

SHORT TITLE.

2 This Act may be cited as the ‘‘Paycheck Fairness Act’’.

SEC.

2.

FINDINGS.

Congress finds the following: (1) Women have entered the workforce in record numbers over the past 50 years.
(2) Despite the enactment of the Equal Pay Act of 1963, many women continue to earn significantly lower pay than men for equal work.

These pay dis- parities exist in both the private and governmental sectors.

In many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination.
(3) The existence of such pay disparities— (A) depresses the wages of working fami- lies who rely on the wages of all members of the family to make ends meet; (B) undermines women’s retirement secu- rity, which is often based on earnings while in the workforce; (C) prevents the optimum utilization of available labor resources; (D) has been spread and perpetuated, through commerce and the channels and instru- •S 819 IS mentalities of commerce, among the workers of the several States; (E) burdens commerce and the free flow of goods in commerce; (F) constitutes an unfair method of com- petition in commerce; (G) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce; (H) interferes with the orderly and fair marketing of goods in commerce; and (I) in many instances, may deprive workers of equal protection on the basis of sex in viola- tion of the 5th and 14th Amendments.
(4)(A) Artificial barriers to the elimination of discrimination in the payment of wages on the basis of sex continue to exist decades after the enactment of the Fair Labor Standards Act of 1938 (29 U.S.C.

201 et seq.)

and the Civil Rights Act of 1964 (42 U.S.C.

2000a et seq.).

(B) These barriers have resulted, in significant part, because the Equal Pay Act of 1963 has not worked as Congress originally intended.
Improve- ments and modifications to the law are necessary to ensure that the Act provides effective protection to •S 819 IS those subject to pay discrimination on the basis of their sex.
(C) Elimination of such barriers would have positive effects, including— (i) providing a solution to problems in the economy created by unfair pay disparities; (ii) substantially reducing the number of working women earning unfairly low wages, thereby reducing the dependence on public as- sistance; (iii) promoting stable families by enabling all family members to earn a fair rate of pay; (iv) remedying the effects of past discrimi- nation on the basis of sex and ensuring that in the future workers are afforded equal protection on the basis of sex; and (v) ensuring equal protection pursuant to Congress’ power to enforce the 5th and 14th Amendments.
(5) The Department of Labor and the Equal Employment Opportunity Commission have impor- tant and unique responsibilities to help ensure that women receive equal pay for equal work.
(6) The Department of Labor is responsible for— •S 819 IS (A) collecting and making publicly avail- able information about women’s pay; (B) ensuring that companies receiving Federal contracts comply with anti-discrimina- tion affirmative action requirements of Execu- tive Order 11246 (relating to equal employment opportunity); (C) disseminating information about wom- en’s rights in the workplace; (D) helping women who have been victims of pay discrimination obtain a remedy; and (E) being proactive in investigating and prosecuting equal pay violations, especially sys- temic violations, and in enforcing all of its man- dates.
(7) The Equal Employment Opportunity Com- mission is the primary enforcement agency for claims made under the Equal Pay Act of 1963, and issues regulations and guidance on appropriate in- terpretations of the law.
(8) With a stronger commitment by the Depart- ment of Labor and the Equal Employment Oppor- tunity Commission to their responsibilities, increased information as a result of the amendments made by this Act to the Equal Pay Act of 1963, wage data, •S 819 IS and more effective remedies, women will be better able to recognize and enforce their rights.
(9) Certain employers have already made great strides in eradicating unfair pay disparities in the workplace and their achievements should be recog- nized.

SEC.

3.

ENHANCED ENFORCEMENT OF EQUAL PAY RE- QUIREMENTS.

(a) BONA FIDE FACTOR DEFENSE AND MODIFICA- TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(d)(1)) is amended— (1) by striking ‘‘No employer having’’ and in- serting ‘‘(A) No employer having’’; (2) by striking ‘‘any other factor other than sex’’ and inserting ‘‘a bona fide factor other than sex, such as education, training, or experience’’; and (3) by inserting at the end the following: ‘‘(B) The bona fide factor defense described in sub- paragraph (A)(iv) shall apply only if the employer dem- onstrates that such factor (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job- related with respect to the position in question; (iii) is con- sistent with business necessity; and (iv) accounts for the entire differential in compensation at issue.
Such defense •S 819 IS shall not apply where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such dif- ferential and that the employer has refused to adopt such alternative practice.
‘‘(C) For purposes of subparagraph (A), employees shall be deemed to work in the same establishment if the employees work for the same employer at workplaces lo- cated in the same county or similar political subdivision of a State.

The preceding sentence shall not be construed as limiting broader applications of the term ‘establish- ment’ consistent with rules prescribed or guidance issued by the Equal Opportunity Employment Commission.’’.
(b) NONRETALIATION PROVISION.—Section 15 of the Fair Labor Standards Act of 1938 (29 U.S.C.
215) is 16 amended— (1) in subsection (a)— (A) in paragraph (3), by striking ‘‘em- ployee has filed’’ and all that follows and insert- ing ‘‘employee— ‘‘(A) has made a charge or filed any com- plaint or instituted or caused to be instituted any investigation, proceeding, hearing, or action under or related to this Act, including an inves- tigation conducted by the employer, or has tes- •S 819 IS tified or is planning to testify or has assisted or participated in any manner in any such inves- tigation, proceeding, hearing or action, or has served or is planning to serve on an industry committee; or ‘‘(B) has inquired about, discussed, or dis- closed the wages of the employee or another employee;’’; (B) in paragraph (5), by striking the pe- riod at the end and inserting ‘‘; or’’; and (C) by adding at the end the following: ‘‘(6) to require an employee to sign a contract or waiver that would prohibit the employee from dis- closing information about the employee’s wages.’’; and (2) by adding at the end the following: ‘‘(c) Subsection (a)(3)(B) shall not apply to instances in which an employee who has access to the wage informa- tion of other employees as a part of such employee’s essen- tial job functions discloses the wages of such other employ- ees to individuals who do not otherwise have access to such
 information, unless such disclosure is in response to a complaint or charge or in furtherance of an investigation, proceeding, hearing, or action under section 6(d), includ- ing an investigation conducted by the employer.
Nothing •S 819 IS in this subsection shall be construed to limit the rights of an employee provided under any other provision of law.’’.

(c) ENHANCED PENALTIES.—Section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C.
216(b)) is amended— (1) by inserting after the first sentence the fol- lowing: ‘‘Any employer who violates section 6(d) shall additionally be liable for such compensatory damages, or, where the employee demonstrates that the employer acted with malice or reckless indiffer- ence, punitive damages as may be appropriate, ex- cept that the United States shall not be liable for punitive damages.’’; (2) in the sentence beginning ‘‘An action to’’, by striking ‘‘either of the preceding sentences’’ and inserting ‘‘any of the preceding sentences of this subsection’’; (3) in the sentence beginning ‘‘No employees shall’’, by striking ‘‘No employees’’ and inserting ‘‘Except with respect to class actions brought to en- force section 6(d), no employee’’; (4) by inserting after the sentence referred to in paragraph (3), the following: ‘‘Notwithstanding any other provision of Federal law, any action •S 819 IS 10 brought to enforce section 6(d) may be maintained as a class action as provided by the Federal Rules of Civil Procedure.’’; and (5) in the sentence beginning ‘‘The court in’’— (A) by striking ‘‘in such action’’ and in- serting ‘‘in any action brought to recover the li- ability prescribed in any of the preceding sen- tences of this subsection’’; and (B) by inserting before the period
 the fol- lowing: ‘‘, including expert fees’’.
(d) ACTION BY SECRETARY.—Section 16(c) of the Fair Labor Standards Act of 1938 (29 U.S.C.
216(c)) is amended— (1) in the first sentence— (A) by inserting ‘‘or, in the case of a viola- tion of section 6(d), additional compensatory or punitive damages, as described in subsection (b),’’ before ‘‘and the agreement’’; and (B) by inserting before the period the fol- lowing: ‘‘, or such compensatory or punitive damages, as appropriate’’; (2) in the second sentence, by inserting before the period the following: ‘‘and, in the case of a viola- tion of section 6(d), additional compensatory or pu- nitive damages, as described in subsection (b)’’; •S 819 IS 11 (3) in the third sentence, by striking ‘‘the first sentence’’ and inserting ‘‘the first or second sen- tence’’; and (4) in the last sentence— (A) by striking ‘‘commenced in the case’’ and inserting ‘‘commenced— ‘‘(1) in the case’’; (B) by striking the period and inserting ‘‘; or’’; and (C) by adding at the end the following: ‘‘(2) in the case of a class action brought to en- force section 6(d), on the date on which the indi- vidual becomes a party plaintiff to the class action.’’.
SEC.

4.

TRAINING.

The Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs, subject to the availability of funds appropriated under sec- tion 11, shall provide training to Commission employees and affected individuals and entities on matters involving discrimination in the payment of wages.

SEC.

5.

NEGOTIATION SKILLS TRAINING FOR GIRLS AND WOMEN.


(a) PROGRAM AUTHORIZED.— (1) IN GENERAL.—The Secretary of Labor, after consultation with the Secretary of Education, •S 819 IS 12 is authorized to establish and carry out a grant pro- gram.
(2) GRANTS.—In carrying out the program, the Secretary of Labor may make grants on a competi- tive basis to eligible entities, to carry out negotiation skills training programs for girls and women.
(3) ELIGIBLE ENTITIES.—To be eligible to re- ceive a grant under this subsection, an entity shall be a public agency, such as a State, a local govern- ment in a metropolitan statistical area (as defined by the Office of Management and Budget), a State educational agency, or a local educational agency, a private nonprofit organization, or a community- based organization.
(4) APPLICATION.—To be eligible to receive a grant under this subsection, an entity shall submit an application to the Secretary of Labor at such time, in such manner, and containing such informa- tion as the Secretary of Labor may require.

(5) USE OF FUNDS.—An entity that receives a grant under this subsection shall use the funds made available through the grant to carry out an effective negotiation skills training program that empowers girls and women.
The training provided through the program shall help girls and women strengthen their •S 819 IS 13 negotiation skills to allow the girls and women to ob- tain higher salaries and rates of compensation that are equal to those paid to similarly situated male employees.
(b) INCORPORATING TRAINING INTO EXISTING PRO- GRAMS.—The Secretary of Labor and the Secretary of Education shall issue regulations or policy guidance that provides for integrating the negotiation skills training, to the extent practicable, into programs authorized under— (1) in the case of the Secretary of Education, the Elementary and Secondary Education Act of 1965 (20 U.S.C.

6301 et seq.

), the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C.

2301 et seq.
2301 et seq.

), the Higher Education Act of 1965 (20 U.S.C.

1001 et seq.

), and other programs carried out by the Department of Education that the Secretary of Education determines to be appro- priate; and (2) in the case of the Secretary of Labor, the Workforce Innovation and Opportunity Act (29 U.S.C.

3101 et seq.

), and other programs carried out by the Department of Labor that the Secretary of Labor determines to be appropriate.
(c) REPORT.—Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Sec- •S 819 IS retary of Labor and the Secretary of Education shall pre- pare and submit to Congress a report describing the ac- tivities conducted under this section and evaluating the ef- fectiveness of such activities in achieving the purposes of this Act.
SEC.

6.

RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide information to employers, labor organizations, and the general public concerning the means available to elimi- nate pay disparities between men and women, including— (1) conducting and promoting research to de- velop the means to correct expeditiously the condi- tions leading to the pay disparities; (2) publishing and otherwise making available to employers, labor organizations, professional asso- ciations, educational institutions, the media, and the general public the findings resulting from studies and other materials, relating to eliminating the pay disparities; (3) sponsoring and assisting State and commu- nity informational and educational programs; (4) providing information to employers, labor organizations, professional associations, and other interested persons on the means of eliminating the pay disparities; •S 819 IS 15 (5) recognizing and promoting the achievements of employers, labor organizations, and professional associations that have worked to eliminate the pay disparities; and (6) convening a national summit to discuss, and consider approaches for rectifying, the pay dispari- ties.
SEC.

7.

ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE WORKPLACE.

(a) IN GENERAL.—There is established the Secretary of Labor’s National Award for Pay Equity in the Work- place, which shall be awarded, as appropriate, to encour- age proactive efforts to comply with section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C.

206(d)).
206(d)).

(b) CRITERIA FOR QUALIFICATION.—The Secretary of Labor shall set criteria for receipt of the award, includ- ing a requirement that an employer has made substantial effort to eliminate pay disparities between men and women, and deserves special recognition as a consequence of such effort.

The Secretary shall establish procedures for the application and presentation of the award.
(c) BUSINESS.—In this section, the term ‘‘employer’’ includes— 24 25 (1)(A) a corporation, including a nonprofit cor- poration; •S 819 IS 16 (B) a partnership; (C) a professional association; (D) a labor organization; and (E) a business entity similar to an entity de- scribed in any of subparagraphs (A) through (D); (2) an entity carrying out an education referral program, a training program, such as an apprentice- ship or management training program, or a similar program; and (3) an entity carrying out a joint program, formed by a combination of any entities described in paragraph (1) or (2).
SEC.

8.

COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

Section 709 of the Civil Rights Act of 1964 (42 U.S.C.
2000e–8) is amended by adding at the end the fol- lowing: ‘‘(f)(1) Not later than 18 months after the date of enactment of this subsection, the Commission shall issue regulations to provide for the collection from employers of compensation data and other employment-related data (including hiring, termination, and promotion data) disaggregated by the sex, race, and national origin of em- 24 ployees.
•S 819 IS 17 ‘‘(2) In carrying out paragraph (1), the Commission shall have as its primary consideration the most effective and efficient means for enhancing the enforcement of Fed- eral laws prohibiting pay discrimination.
For this purpose, the Commission shall consider factors including the impo- sition of burdens on employers, the frequency of required reports (including which employers should be required to prepare reports), appropriate protections for maintaining data confidentiality, and the most effective format for re- 10 ports containing such data.’’.

11 SEC.

9.

REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA COLLECTION.
(a) BUREAU OF LABOR STATISTICS DATA COLLEC- TION.—The Commissioner of Labor Statistics shall con- tinue to collect data on women workers in the Current Employment Statistics survey.
(b) OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS INITIATIVES.—The Director of the Office of Federal Contract Compliance Programs shall ensure that 20 employees of the Office— (1)(A) shall use the full range of investigatory tools at the Office’s disposal, including pay grade methodology; (B) in considering evidence of possible com- pensation discrimination— •S 819 IS 18 (i) shall not limit its consideration to a small number of types of evidence; and (ii) shall not limit its evaluation of the evi- dence to a small number of methods of evalu- ating the evidence; and (C) shall not require a multiple regression anal- ysis or anecdotal evidence for a compensation dis- crimination case; (2) for purposes of its investigative, compliance, and enforcement activities, shall define ‘‘similarly situated employees’’ in a way that is consistent with and not more stringent than the definition provided in item 1 of subsection A of section 10–III of the Equal Employment Opportunity Commission Com- pliance Manual (2000), and shall consider only fac- tors that the Office’s investigation reveals were used in making compensation decisions; and (3) shall implement a survey to collect com- pensation data and other employment-related data (including hiring, termination, and promotion data) and designate not less than half of all nonconstruc-
 tion contractor establishments each year to prepare and file such survey, and shall review and utilize the responses to such survey to identify contractor es- •S 819 IS 19 tablishments for further evaluation and for other en- forcement purposes as appropriate.
(c) DEPARTMENT OF LABOR DISTRIBUTION OF WAGE DISCRIMINATION INFORMATION.—The Secretary of Labor shall make readily available (in print, on the De- partment of Labor website, and through any other forum that the Department may use to distribute compensation discrimination information), accurate information on com- pensation discrimination, including statistics, explanations of employee rights, historical analyses of such discrimina- tion, instructions for employers on compliance, and any other information that will assist the public in under- standing and addressing such discrimination.
SEC.

10.

PROHIBITIONS RELATING TO PROSPECTIVE EM- PLOYEES’ SALARY AND BENEFIT HISTORY.

(a) IN GENERAL.—The Fair Labor Standards Act of 1938 (29 U.S.C.

201 et seq.)

is amended by inserting after section 7 the following new section: ‘‘SEC.

8.

REQUIREMENTS AND PROHIBITIONS RELATING TO WAGE, SALARY, AND BENEFIT HISTORY.
‘‘(a) IN GENERAL.—It shall be an unlawful practice 22 for an employer to— 23 24 25 ‘‘(1) rely on the wage history of a prospective employee in considering the prospective employee for employment, including requiring that a prospective •S 819 IS 20 employee’s prior wages satisfy minimum or max- imum criteria as a condition of being considered for employment; ‘‘(2) rely on the wage history of a prospective employee in determining the wages for such prospec- tive employee, except that an employer may rely on wage history if it is voluntarily provided by a pro- spective employee, after the employer makes an offer of employment with an offer of compensation to the prospective employee, to support a wage higher than the wage offered by the employer; ‘‘(3) seek from a prospective employee or any current or former employer the wage history of the prospective employee, except that an employer may seek to confirm prior wage information only after an offer of employment with compensation has been made to the prospective employee and the prospec- tive employee responds to the offer by providing prior wage information to support a wage higher than that offered by the employer; or ‘‘(4) discharge or in any other manner retaliate against any employee or prospective employee be- cause the employee or prospective employee— ‘‘(A) opposed any act or
 practice made un- lawful by this section; or •S 819 IS 21 ‘‘(B) took an action for which discrimina- tion is forbidden under section 15(3).
‘‘(b) DEFINITIONS.—In this section: ‘‘(1) WAGES; COMPENSATION.—The term ‘wages’ or ‘compensation’ has the meaning given the term ‘wages’ in section 6(d).

‘‘(2) WAGE HISTORY.—The term ‘wage history’ means the wages paid to the prospective employee by the prospective employee’s current employer or pre- vious employer.’’.

(b) PENALTIES.—Section 16 of such Act (29 U.S.C.
216) is amended by adding at the end the following new subsection: 14 ‘‘(f)(1) Any person who violates the provisions of sec- 15 tion 8 shall— ‘‘(A) be subject to a civil penalty of $5,000 for a first offense, increased by an additional $1,000 for each subsequent offense, not to exceed $10,000; and ‘‘(B) be liable to each employee or prospective employee who was the subject of the violation for special damages not to exceed $10,000 plus attor- neys’ fees, and shall be subject to such injunctive re- lief as may be appropriate.
‘‘(2) An action to recover the liability described in paragraph (1)(B) may be maintained against any em- •S 819 IS 22 ployer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more em- ployees or prospective employees for and on behalf of— ‘‘(A) the employees or prospective employees; and ‘‘(B) other employees or prospective employees similarly situated.’’.
SEC.

11.

AUTHORIZATION OF APPROPRIATIONS.

(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated $15,000,000 to carry 11 out this Act.

12 (b) PROHIBITION ON EARMARKS.—None of the funds appropriated pursuant to subsection (a) for purposes of the grant program in section 5 of this Act may be used for a congressional earmark as defined in clause 9(e) of rule XXI of the Rules of the House of Representatives.

SEC.

12.
SEC.

12.

SMALL BUSINESS ASSISTANCE.

(a) EFFECTIVE DATE.—This Act and the amend- ments made by this Act shall take effect on the date that is 6 months after the date of enactment of this Act.
(b) TECHNICAL ASSISTANCE MATERIALS.—The Sec- retary of Labor and the Commissioner of the Equal Em- ployment Opportunity Commission shall jointly develop technical assistance material to assist small businesses in •S 819 IS complying with the requirements of this Act and the amendments made by this Act.
(c) SMALL BUSINESSES.—A small business shall be exempt from the provisions of this Act, and the amend- ments made by this Act, to the same extent that such busi- ness is exempt from the requirements of the Fair Labor Standards Act of 1938 pursuant to clauses (i) and (ii) of section 3(s)(1)(A) of such Act (29 U.S.C.

203(s)(1)(A)).

SEC.

13.

RULE OF CONSTRUCTION.


Nothing in this Act, or in any amendments made by this Act, shall affect the obligation of employers and em- ployees to fully comply with all applicable immigration laws, including any penalties, fines, or other sanctions •S 819 IS