II 

Calendar No. 134 

118TH CONGRESS 

1ST SESSION S. 728 

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 

MARCH 9, 2023 

Mrs. MURRAY (for herself, Mr. SCHUMER, Mr. SANDERS, Ms. CORTEZ MASTO, 

Mr. REED, Mr. LUJA ́N, Mr. MERKLEY, Ms. HIRONO, Mr. PADILLA, Ms. 

CANTWELL, Mr. SCHATZ, Mr. FETTERMAN, Mr. CASEY, Mr. MURPHY, 

Mr. MARKEY, Mr. BROWN, Mr. HICKENLOOPER, Mr. KING, Mr. KAINE, 

Ms. SINEMA, Mr. WELCH, Mr. BOOKER, Mrs. FEINSTEIN, Ms. STABENOW, Ms. WARREN, Mr. MENENDEZ, Mr. CARPER, Mr. WARNER, Ms. 

BALDWIN, Ms. SMITH, Ms. KLOBUCHAR, Mr. BLUMENTHAL, Mrs. GILLIBRAND, Mr. VAN HOLLEN, Mr. WARNOCK, Ms. DUCKWORTH, Mrs. SHAHEEN, Mr. HEINRICH, Mr. DURBIN, Mr. WHITEHOUSE, Mr. COONS, Mr. 

KELLY, Ms. HASSAN, Mr. CARDIN, Ms. ROSEN, Mr. WYDEN, Mr. BENNET, Mr. MANCHIN, Mr. OSSOFF, Mr. TESTER, and Mr. PETERS) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

JULY 18, 2023 

Reported by Mr. SANDERS, without amendment 

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. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Paycheck Fairness 

5 Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Women have entered the workforce in 

9 record numbers over the past 50 years. 

10 (2) Despite the enactment of the Equal Pay Act 

11 of 1963, many women continue to earn significantly 

12 lower pay than men for equal work. These pay dis13 parities exist in both the private and governmental 

14 sectors. Pay disparities are especially severe for 

15 women and girls of color. 

16 (3) In many instances, the pay disparities can 

17 only be due to continued intentional discrimination 

18 or the lingering effects of past discrimination. After 

19 controlling for educational attainment, occupation, 

20 industry, union status, race, ethnicity, and labor 

21 force experience roughly 40 percent of the pay gap 

22 remains unexplained. 

23 (4) The existence of such pay disparities— 


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1 (A) depresses the wages of working fami2 lies who rely on the wages of all members of the 

3 family to make ends meet; 

4 (B) undermines women’s retirement secu5 rity, which is often based on earnings while in 

6 the workforce; 

7 (C) prevents women from realizing their 

8 full economic potential, particularly in terms of 

9 labor force participation and attachment; 

10 (D) has been spread and perpetuated, 

11 through commerce and the channels and instru12 mentalities of commerce, among the workers of 

13 the several States; 

14 (E) burdens commerce and the free flow of 

15 goods in commerce; 

16 (F) constitutes an unfair method of com17 petition in commerce; 

18 (G) tends to cause labor disputes, as evi19 denced by the tens of thousands of charges filed 

20 with the Equal Employment Opportunity Com21 mission against employers between 2010 and 

22 2016; 

23 (H) interferes with the orderly and fair 

24 marketing of goods in commerce; and 


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1 (I) in many instances, may deprive workers 

2 of equal protection on the basis of sex in viola3 tion of the 5th and 14th Amendments to the 

4 Constitution. 

5 (5)(A) Artificial barriers to the elimination of 

6 discrimination in the payment of wages on the basis 

7 of sex continue to exist decades after the enactment 

8 of the Fair Labor Standards Act of 1938 (29 U.S.C. 

9 201 et seq.) and the Civil Rights Act of 1964 (42 

10 U.S.C. 2000a et seq.). 

11 (B) These barriers have resulted, in significant 

12 part, because the Equal Pay Act of 1963 has not 

13 worked as Congress originally intended. Improve14 ments and modifications to the law are necessary to 

15 ensure that the Act provides effective protection to 

16 those subject to pay discrimination on the basis of 

17 their sex. 

18 (C) Elimination of such barriers would have 

19 positive effects, including— 

20 (i) providing a solution to problems in the 

21 economy created by unfair pay disparities; 

22 (ii) substantially reducing the number of 

23 working women earning unfairly low wages, 

24 thereby reducing the dependence on public as25 sistance; 


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1 (iii) promoting stable families by enabling 

2 all family members to earn a fair rate of pay; 

3 (iv) remedying the effects of past discrimi4 nation on the basis of sex and ensuring that in 

5 the future workers are afforded equal protection 

6 on the basis of sex; and 

7 (v) ensuring equal protection pursuant to 

8 Congress’ power to enforce the 5th and 14th 

9 Amendments to the Constitution. 

10 (6) The Department of Labor and the Equal 

11 Employment Opportunity Commission carry out 

12 functions to help ensure that women receive equal 

13 pay for equal work. 

14 (7) The Department of Labor is responsible 

15 for— 

16 (A) collecting and making publicly avail17 able information about women’s pay; 

18 (B) ensuring that companies receiving 

19 Federal contracts comply with anti-discrimina20 tion affirmative action requirements of Execu21 tive Order 11246 (relating to equal employment 

22 opportunity); 

23 (C) disseminating information about wom24 en’s rights in the workplace; 


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1 (D) helping women who have been victims 

2 of pay discrimination obtain a remedy; and 

3 (E) investigating and prosecuting systemic 

4 gender based pay discrimination involving gov5 ernment contractors. 

6 (8) The Equal Employment Opportunity Com7 mission is the primary enforcement agency for 

8 claims made under the Equal Pay Act of 1963, and 

9 issues regulations and guidance on appropriate in10 terpretations of the law. 

11 (9) Vigorous implementation by the Depart12 ment of Labor and the Equal Employment Oppor13 tunity Commission, increased information as a result 

14 of the amendments made by this Act, wage data, 

15 and more effective remedies, will ensure that women 

16 are better able to recognize and enforce their rights. 

17 (10) Certain employers have already made 

18 great strides in eradicating unfair pay disparities in 

19 the workplace and their achievements should be rec20 ognized. 

21 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE22 QUIREMENTS. 

23 (a) BONA FIDE FACTOR DEFENSE AND MODIFICA24 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 


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1 6(d)(1) of the Fair Labor Standards Act of 1938 (29 

2 U.S.C. 206(d)(1)) is amended— 

3 (1) by striking ‘‘No employer having’’ and in4 serting ‘‘(A) No employer having’’; 

5 (2) by striking ‘‘any other factor other than 

6 sex’’ and inserting ‘‘a bona fide factor other than 

7 sex, such as education, training, or experience’’; and 

8 (3) by inserting at the end the following: 

9 ‘‘(B) The bona fide factor defense described in sub10 paragraph (A)(iv) shall apply only if the employer dem11 onstrates that such factor (i) is not based upon or derived 

12 from a sex-based differential in compensation; (ii) is job13 related with respect to the position in question; (iii) is con14 sistent with business necessity; and (iv) accounts for the 

15 entire differential in compensation at issue. Such defense 

16 shall not apply where the employee demonstrates that an 

17 alternative employment practice exists that would serve 

18 the same business purpose without producing such dif19 ferential and that the employer has refused to adopt such 

20 alternative practice. 

21 ‘‘(C) For purposes of subparagraph (A), employees 

22 shall be deemed to work in the same establishment if the 

23 employees work for the same employer at workplaces lo24 cated in the same county or similar political subdivision 

25 of a State. The preceding sentence shall not be construed 


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1 as limiting broader applications of the term ‘establish2 ment’ consistent with rules prescribed or guidance issued 

3 by the Equal Employment Opportunity Commission.’’. 

4 (b) NONRETALIATION PROVISION.—Section 15 of the 

5 Fair Labor Standards Act of 1938 (29 U.S.C. 215) is 

6 amended— 

7 (1) in subsection (a)— 

8 (A) in paragraph (3), by striking ‘‘em9 ployee has filed’’ and all that follows and insert10 ing ‘‘employee— 

11 ‘‘(A) has made a charge or filed any com12 plaint or instituted or caused to be instituted 

13 any investigation, proceeding, hearing, or action 

14 under or related to this Act, including an inves15 tigation conducted by the employer, or has tes16 tified or is planning to testify or has assisted or 

17 participated in any manner in any such inves18 tigation, proceeding, hearing or action, or has 

19 served or is planning to serve on an industry 

20 committee; or 

21 ‘‘(B) has inquired about, discussed, or dis22 closed the wages of the employee or another 

23 employee (such as by inquiring or discussing 

24 with the employer why the wages of the em25 ployee are set at a certain rate or salary);’’; 


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1 (B) in paragraph (5), by striking the pe2 riod at the end and inserting ‘‘; or’’; and 

3 (C) by adding at the end the following: 

4 ‘‘(6) to require an employee to sign a contract 

5 or waiver that would prohibit the employee from dis6 closing information about the employee’s wages.’’; 

7 and 

8 (2) by adding at the end the following: 

9 ‘‘(c) Subsection (a)(3)(B) shall not apply to instances 

10 in which an employee who has access to the wage informa11 tion of other employees as a part of such employee’s essen12 tial job functions discloses the wages of such other employ13 ees to individuals who do not otherwise have access to such 

14 information, unless such disclosure is in response to a 

15 complaint or charge or in furtherance of an investigation, 

16 proceeding, hearing, or action under section 6(d), includ17 ing an investigation conducted by the employer. Nothing 

18 in this subsection shall be construed to limit the rights 

19 of an employee provided under any other provision of 

20 law.’’. 

21 (c) ENHANCED PENALTIES.—Section 16(b) of the 

22 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 

23 amended— 

24 (1) by inserting after the first sentence the fol25 lowing: ‘‘Any employer who violates section 6(d) 


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1 shall additionally be liable for such compensatory 

2 damages, or, where the employee demonstrates that 

3 the employer acted with malice or reckless indiffer4 ence, punitive damages as may be appropriate, ex5 cept that the United States shall not be liable for 

6 punitive damages.’’; 

7 (2) in the sentence beginning ‘‘An action to’’, 

8 by striking ‘‘the preceding sentences’’ and inserting 

9 ‘‘any of the preceding sentences of this subsection’’; 

10 (3) in the sentence beginning ‘‘No employees 

11 shall’’, by striking ‘‘No employees’’ and inserting 

12 ‘‘Except with respect to class actions brought to en13 force section 6(d), no employee’’; 

14 (4) by inserting after the sentence referred to 

15 in paragraph (3), the following: ‘‘Notwithstanding 

16 any other provision of Federal law, any action 

17 brought to enforce section 6(d) may be maintained 

18 as a class action as provided by the Federal Rules 

19 of Civil Procedure.’’; and 

20 (5) in the sentence beginning ‘‘The court in’’— 

21 (A) by striking ‘‘in such action’’ and in22 serting ‘‘in any action brought to recover the li23 ability prescribed in any of the preceding sen24 tences of this subsection’’; and 


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1 (B) by inserting before the period the fol2 lowing: ‘‘, including expert fees’’. 

3 (d) ACTION BY SECRETARY.—Section 16(c) of the 

4 Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 

5 amended— 

6 (1) in the first sentence— 

7 (A) by inserting ‘‘or, in the case of a viola8 tion of section 6(d), additional compensatory or 

9 punitive damages, as described in subsection 

10 (b),’’ before ‘‘and the agreement’’; and 

11 (B) by inserting before the period the fol12 lowing: ‘‘, or such compensatory or punitive 

13 damages, as appropriate’’; 

14 (2) in the second sentence, by inserting before 

15 the period the following: ‘‘and, in the case of a viola16 tion of section 6(d), additional compensatory or pu17 nitive damages, as described in subsection (b)’’; 

18 (3) in the third sentence, by striking ‘‘the first 

19 sentence’’ and inserting ‘‘the first or second sen20 tence’’; and 

21 (4) in the sixth sentence— 

22 (A) by striking ‘‘commenced in the case’’ 

23 and inserting ‘‘commenced— 

24 ‘‘(1) in the case’’; 


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1 (B) by striking the period and inserting ‘‘; 

2 or’’; and 

3 (C) by adding at the end the following: 

4 ‘‘(2) in the case of a class action brought to en5 force section 6(d), on the date on which the indi6 vidual becomes a party plaintiff to the class action.’’. 

7 SEC. 4. TRAINING. 

8 The Equal Employment Opportunity Commission 

9 and the Office of Federal Contract Compliance Programs, 

10 subject to the availability of funds appropriated under sec11 tion 11, shall provide training to Commission employees 

12 and affected individuals and entities on matters involving 

13 discrimination in the payment of wages. 

14 SEC. 5. NEGOTIATION SKILLS TRAINING. 

15 (a) PROGRAM AUTHORIZED.— 

16 (1) IN GENERAL.—The Secretary of Labor, 

17 after consultation with the Secretary of Education, 

18 is authorized to establish and carry out a grant pro19 gram. 

20 (2) GRANTS.—In carrying out the program, the 

21 Secretary of Labor may make grants on a competi22 tive basis to eligible entities to carry out negotiation 

23 skills training programs for the purposes of address24 ing pay disparities, including through outreach to 

25 women and girls. 


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1 (3) ELIGIBLE ENTITIES.—To be eligible to re2 ceive a grant under this subsection, an entity shall 

3 be a public agency, such as a State, a local govern4 ment in a metropolitan statistical area (as defined 

5 by the Office of Management and Budget), a State 

6 educational agency, or a local educational agency, a 

7 private nonprofit organization, or a community8 based organization. 

9 (4) APPLICATION.—To be eligible to receive a 

10 grant under this subsection, an entity shall submit 

11 an application to the Secretary of Labor at such 

12 time, in such manner, and containing such informa13 tion as the Secretary of Labor may require. 

14 (5) USE OF FUNDS.—An entity that receives a 

15 grant under this subsection shall use the funds made 

16 available through the grant to carry out an effective 

17 negotiation skills training program for the purposes 

18 described in paragraph (2). 

19 (b) INCORPORATING TRAINING INTO EXISTING PRO20 GRAMS.—The Secretary of Labor and the Secretary of 

21 Education shall issue regulations or policy guidance that 

22 provides for integrating the negotiation skills training, to 

23 the extent practicable, into programs authorized under— 

24 (1) in the case of the Secretary of Education, 

25 the Elementary and Secondary Education Act of 


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1 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 

2 Career and Technical Education Act of 2006 (20 

3 U.S.C. 2301 et seq.), the Higher Education Act of 

4 1965 (20 U.S.C. 1001 et seq.), and other programs 

5 carried out by the Department of Education that the 

6 Secretary of Education determines to be appro7 priate; and 

8 (2) in the case of the Secretary of Labor, the 

9 Workforce Innovation and Opportunity Act (29 

10 U.S.C. 3101 et seq.), and other programs carried 

11 out by the Department of Labor that the Secretary 

12 of Labor determines to be appropriate. 

13 (c) REPORT.—Not later than 18 months after the 

14 date of enactment of this Act, and annually thereafter, 

15 the Secretary of Labor, in consultation with the Secretary 

16 of Education, shall prepare and submit to Congress a re17 port describing the activities conducted under this section 

18 and evaluating the effectiveness of such activities in 

19 achieving the purposes of this section. 

20 SEC. 6. RESEARCH, EDUCATION, AND OUTREACH. 

21 (a) IN GENERAL.—Not later than 18 months after 

22 the date of enactment of this Act, and periodically there23 after, the Secretary of Labor shall conduct studies and 

24 provide information to employers, labor organizations, and 

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1 nate pay disparities between men and women (including 

2 women who are Asian American, Black or African Amer3 ican, Hispanic American or Latino, Native American or 

4 Alaska Native, Native Hawaiian or Pacific Islander, and 

5 White American), including— 

6 (1) conducting and promoting research to de7 velop the means to correct expeditiously the condi8 tions leading to the pay disparities, with specific at9 tention paid to women and girls from historically 

10 underrepresented and minority groups; 

11 (2) publishing and otherwise making available 

12 to employers, labor organizations, professional asso13 ciations, educational institutions, the media, and the 

14 general public the findings resulting from studies 

15 and other materials, relating to eliminating the pay 

16 disparities; 

17 (3) sponsoring and assisting State, local, and 

18 community informational and educational programs; 

19 (4) providing information to employers, labor 

20 organizations, professional associations, and other 

21 interested persons on the means of eliminating the 

22 pay disparities; and 

23 (5) recognizing and promoting the achievements 

24 of employers, labor organizations, and professional 


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1 associations that have worked to eliminate the pay 

2 disparities. 

3 (b) REPORT ON GENDER PAY GAP IN TEENAGE

4 LABOR FORCE.— 

5 (1) REPORT REQUIRED.—Not later than one 

6 year after the date of the enactment of this Act, the 

7 Secretary of Labor, acting through the Director of 

8 the Women’s Bureau and in coordination with the 

9 Commissioner of Labor Statistics, shall— 

10 (A) submit to Congress a report on the 

11 gender pay gap in the teenage labor force; and 

12 (B) make the report available on a publicly 

13 accessible website of the Department of Labor. 

14 (2) ELEMENTS.—The report under subsection 

15 (a) shall include the following: 

16 (A) An examination of trends and potential 

17 solutions relating to the teenage gender pay 

18 gap. 

19 (B) An examination of how the teenage 

20 gender pay gap potentially translates into 

21 greater wage gaps in the overall labor force. 

22 (C) An examination of overall lifetime 

23 earnings and losses for informal and formal 

24 jobs for women, including women of color. 


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1 (D) An examination of the teenage gender 

2 pay gap, including a comparison of the average 

3 amount earned by males and females, respec4 tively, in informal jobs, such as babysitting and 

5 other freelance jobs, as well as formal jobs, 

6 such as retail, restaurant, and customer service. 

7 (E) A comparison of— 

8 (i) the types of tasks typically per9 formed by women from the teenage years 

10 through adulthood within certain informal 

11 jobs, such as babysitting and other free12 lance jobs, and formal jobs, such as retail, 

13 restaurant, and customer service; and 

14 (ii) the types of tasks performed by 

15 younger males in such positions. 

16 (F) Interviews and surveys with workers 

17 and employers relating to early gender-based 

18 pay discrepancies. 

19 (G) Recommendations for— 

20 (i) addressing pay inequality for 

21 women from the teenage years through 

22 adulthood, including such women of color; 

23 (ii) addressing any disadvantages ex24 perienced by young women with respect to 


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1 work experience and professional develop2 ment; 

3 (iii) the development of standards and 

4 best practices for workers and employees 

5 to ensure better pay for young women and 

6 the prevention of early inequalities in the 

7 workplace; and 

8 (iv) expanding awareness for teenage 

9 girls on pay rates and employment rights 

10 in order to reduce greater inequalities in 

11 the overall labor force. 

12 SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

13 PAY EQUITY IN THE WORKPLACE. 

14 (a) IN GENERAL.—There is established the Secretary 

15 of Labor’s National Award for Pay Equity in the Work16 place, which shall be awarded, on an annual basis, to an 

17 employer to encourage proactive efforts to comply with 

18 section 6(d) of the Fair Labor Standards Act of 1938 (29 

19 U.S.C. 206(d)), as amended by this Act. 

20 (b) CRITERIA FOR QUALIFICATION.—The Secretary 

21 of Labor shall set criteria for receipt of the award, includ22 ing a requirement that an employer has made substantial 

23 effort to eliminate pay disparities between men and 

24 women, and deserves special recognition as a consequence 


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1 of such effort. The Secretary shall establish procedures for 

2 the application and presentation of the award. 

3 (c) BUSINESS.—In this section, the term ‘‘employer’’ 

4 includes— 

5 (1)(A) a corporation, including a nonprofit cor6 poration; 

7 (B) a partnership; 

8 (C) a professional association; 

9 (D) a labor organization; and 

10 (E) a business entity similar to an entity de11 scribed in any of subparagraphs (A) through (D); 

12 (2) an entity carrying out an education referral 

13 program, a training program, such as an apprentice14 ship or management training program, or a similar 

15 program; and 

16 (3) an entity carrying out a joint program, 

17 formed by a combination of any entities described in 

18 paragraph (1) or (2). 

19 SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL 

20 EMPLOYMENT OPPORTUNITY COMMISSION. 

21 Section 709 of the Civil Rights Act of 1964 (42 

22 U.S.C. 2000e–8) is amended by adding at the end the fol23 lowing: 

24 ‘‘(f)(1) Not later than 18 months after the date of 

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1 vide for the collection from employers of compensation 

2 data and other employment-related data (including hiring, 

3 termination, and promotion data) disaggregated by the 

4 sex, race, and ethnic identity of employees. 

5 ‘‘(2) In carrying out paragraph (1), the Commission 

6 shall have as its primary consideration the most effective 

7 and efficient means for enhancing the enforcement of Fed8 eral laws prohibiting pay discrimination. For this purpose, 

9 the Commission shall consider factors including the impo10 sition of burdens on employers, the frequency of required 

11 reports (including the size of employers required to pre12 pare reports), appropriate protections for maintaining 

13 data confidentiality, and the most effective format to re14 port such data. 

15 ‘‘(3)(A) For each 12-month reporting period for an 

16 employer, the compensation data collected under para17 graph (1) shall include, for each range of taxable com18 pensation described in subparagraph (B), disaggregated 

19 by the categories described in subparagraph (E)— 

20 ‘‘(i) the number of employees of the employer 

21 who earn taxable compensation in an amount that 

22 falls within such taxable compensation range; and 

23 ‘‘(ii) the total number of hours worked by such 

24 employees. 


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1 ‘‘(B) Subject to adjustment under subparagraph (C), 

2 the taxable compensation ranges described in this sub3 paragraph are as follows: 

4 ‘‘(i) Not more than $19,239. 

5 ‘‘(ii) Not less than $19,240 and not more than 

6 $24,439. 

7 ‘‘(iii) Not less than $24,440 and not more than 

8 $30,679. 

9 ‘‘(iv) Not less than $30,680 and not more than 

10 $38,999. 

11 ‘‘(v) Not less than $39,000 and not more than 

12 $49,919. 

13 ‘‘(vi) Not less than $49,920 and not more than 

14 $62,919. 

15 ‘‘(vii) Not less than $62,920 and not more than 

16 $80,079. 

17 ‘‘(viii) Not less than $80,080 and not more 

18 than $101,919. 

19 ‘‘(ix) Not less than $101,920 and not more 

20 than $128,959. 

21 ‘‘(x) Not less than $128,960 and not more than 

22 $163,799. 

23 ‘‘(xi) Not less than $163,800 and not more 

24 than $207,999. 

25 ‘‘(xii) Not less than $208,000. 


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1 ‘‘(C) The Commission may adjust the taxable com2 pensation ranges under subparagraph (B)— 

3 ‘‘(i) if the Commission determines that such ad4 justment is necessary to enhance enforcement of 

5 Federal laws prohibiting pay discrimination; or 

6 ‘‘(ii) for inflation, in consultation with the Bu7 reau of Labor Statistics. 

8 ‘‘(D) In collecting data described in subparagraph 

9 (A)(ii), the Commission shall provide that, with respect 

10 to an employee who the employer is not required to com11 pensate for overtime employment under section 7 of the 

12 Fair Labor Standards Act of 1938 (29 U.S.C. 207), an 

13 employer may report— 

14 ‘‘(i) in the case of a full-time employee, that 

15 such employee works 40 hours per week, and in the 

16 case of a part-time employee, that such employee 

17 works 20 hours per week; or 

18 ‘‘(ii) the actual number of hours worked by 

19 such employee. 

20 ‘‘(E) The categories described in this subparagraph 

21 shall be determined by the Commission and shall in22 clude— 

23 ‘‘(i) race; 

24 ‘‘(ii) ethnic identity; 

25 ‘‘(iii) sex; and 


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1 ‘‘(iv) job categories, including the job categories 

2 described in the instructions for the Equal Employ3 ment Opportunity Employer Information Report 

4 EEO–1, as in effect on the date of the enactment 

5 of this subsection. 

6 ‘‘(F) The Commission shall use the compensation 

7 data collected under paragraph (1)— 

8 ‘‘(i) to enhance— 

9 ‘‘(I) the investigation of charges filed 

10 under section 706 or section 6(d) of the Fair 

11 Labor Standards Act of 1938 (29 U.S.C. 

12 206(d)); and 

13 ‘‘(II) the allocation of resources to inves14 tigate such charges; and 

15 ‘‘(ii) for any other purpose that the Commission 

16 determines appropriate. 

17 ‘‘(G) The Commission shall annually make publicly 

18 available aggregate compensation data collected under 

19 paragraph (1) for the categories described in subpara20 graph (E), disaggregated by industry, occupation, and 

21 core based statistical area (as defined by the Office of 

22 Management and Budget). 

23 ‘‘(4) The compensation data under paragraph (1) 

24 shall be collected from each employer that— 


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1 ‘‘(A) is a private employer that has 100 or 

2 more employees, including such an employer that is 

3 a contractor with the Federal Government, or a sub4 contractor at any tier thereof; or 

5 ‘‘(B) the Commission determines appropriate.’’. 

6 SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND 

7 PAY EQUITY DATA COLLECTION. 

8 (a) BUREAU OF LABOR STATISTICS DATA COLLEC9 TION.—The Commissioner of Labor Statistics shall con10 tinue to collect data on women workers in the Current 

11 Employment Statistics survey. 

12 (b) OFFICE OF FEDERAL CONTRACT COMPLIANCE

13 PROGRAMS INITIATIVES.—The Director of the Office of 

14 Federal Contract Compliance Programs shall ensure that 

15 employees of the Office— 

16 (1)(A) shall use the full range of investigatory 

17 tools at the Office’s disposal, including pay grade 

18 methodology; 

19 (B) in considering evidence of possible com20 pensation discrimination— 

21 (i) shall not limit its consideration to a 

22 small number of types of evidence; and 

23 (ii) shall not limit its evaluation of the evi24 dence to a small number of methods of evalu25 ating the evidence; and 


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1 (C) shall not require a multiple regression anal2 ysis or anecdotal evidence for a compensation dis3 crimination case; 

4 (2) for purposes of its investigative, compliance, 

5 and enforcement activities, shall define ‘‘similarly 

6 situated employees’’ in a way that is consistent with 

7 and not more stringent than the definition provided 

8 in item 1 of subsection A of section 10–III of the 

9 Equal Employment Opportunity Commission Com10 pliance Manual (2000), and shall consider only fac11 tors that the Office’s investigation reveals were used 

12 in making compensation decisions; and 

13 (3) shall implement a survey to collect com14 pensation data and other employment-related data 

15 (including hiring, termination, and promotion data) 

16 and designate not less than half of all nonconstruc17 tion contractor establishments each year to prepare 

18 and file such survey, and shall review and utilize the 

19 responses to such survey to identify contractor es20 tablishments for further evaluation and for other en21 forcement purposes as appropriate. 

22 (c) DEPARTMENT OF LABOR DISTRIBUTION OF

23 WAGE DISCRIMINATION INFORMATION.—The Secretary of 

24 Labor shall make readily available (in print, on the De25 partment of Labor website, and through any other forum 


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1 that the Department may use to distribute compensation 

2 discrimination information), accurate information on com3 pensation discrimination, including statistics, explanations 

4 of employee rights, historical analyses of such discrimina5 tion, instructions for employers on compliance, and any 

6 other information that will assist the public in under7 standing and addressing such discrimination. 

8 SEC. 10. PROHIBITIONS RELATING TO PROSPECTIVE EM9 PLOYEES’ SALARY AND BENEFIT HISTORY. 

10 (a) IN GENERAL.—The Fair Labor Standards Act of 

11 1938 (29 U.S.C. 201 et seq.) is amended by inserting 

12 after section 7 the following new section: 

13 ‘‘SEC. 8. REQUIREMENTS AND PROHIBITIONS RELATING TO 

14 WAGE, SALARY, AND BENEFIT HISTORY. 

15 ‘‘(a) IN GENERAL.—It shall be an unlawful practice 

16 for an employer to— 

17 ‘‘(1) rely on the wage history of a prospective 

18 employee in considering the prospective employee for 

19 employment, including requiring that a prospective 

20 employee’s prior wages satisfy minimum or max21 imum criteria as a condition of being considered for 

22 employment; 

23 ‘‘(2) rely on the wage history of a prospective 

24 employee in determining the wages for such prospec25 tive employee, except that an employer may rely on 


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1 wage history if it is voluntarily provided by a pro2 spective employee, after the employer makes an offer 

3 of employment with an offer of compensation to the 

4 prospective employee, to support a wage higher than 

5 the wage offered by the employer; 

6 ‘‘(3) seek from a prospective employee or any 

7 current or former employer the wage history of the 

8 prospective employee, except that an employer may 

9 seek to confirm prior wage information only after an 

10 offer of employment with compensation has been 

11 made to the prospective employee and the prospec12 tive employee responds to the offer by providing 

13 prior wage information to support a wage higher 

14 than that offered by the employer; or 

15 ‘‘(4) discharge or in any other manner retaliate 

16 against any employee or prospective employee be17 cause the employee or prospective employee— 

18 ‘‘(A) opposed any act or practice made un19 lawful by this section; or 

20 ‘‘(B) took an action for which discrimina21 tion is forbidden under section 15(a)(3). 

22 ‘‘(b) DEFINITION.—In this section, the term ‘wage 

23 history’ means the wages paid to the prospective employee 

24 by the prospective employee’s current employer or previous 

25 employer.’’. 


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1 (b) PENALTIES.—Section 16 of such Act (29 U.S.C. 

2 216) is amended by adding at the end the following new 

3 subsection: 

4 ‘‘(f)(1) Any person who violates the provisions of sec5 tion 8 shall— 

6 ‘‘(A) be subject to a civil penalty of $5,000 for 

7 a first offense, increased by an additional $1,000 for 

8 each subsequent offense, not to exceed $10,000; and 

9 ‘‘(B) be liable to each employee or prospective 

10 employee who was the subject of the violation for 

11 special damages not to exceed $10,000 plus attor12 neys’ fees, and shall be subject to such injunctive re13 lief as may be appropriate. 

14 ‘‘(2) An action to recover the liability described in 

15 paragraph (1)(B) may be maintained against any em16 ployer (including a public agency) in any Federal or State 

17 court of competent jurisdiction by any one or more em18 ployees or prospective employees for and on behalf of— 

19 ‘‘(A) the employees or prospective employees; 

20 and 

21 ‘‘(B) other employees or prospective employees 

22 similarly situated.’’. 


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1 SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 

2 (a) AUTHORIZATION OF APPROPRIATIONS.—There 

3 are authorized to be appropriated such sums as may be 

4 necessary to carry out this Act. 

5 (b) PROHIBITION ON EARMARKS.—None of the funds 

6 appropriated pursuant to subsection (a) for purposes of 

7 the grant program in section 5 of this Act may be used 

8 for a congressional earmark as defined in clause 9(e) of 

9 rule XXI of the Rules of the House of Representatives. 

10 SEC. 12. SMALL BUSINESS ASSISTANCE. 

11 (a) EFFECTIVE DATE.—This Act and the amend12 ments made by this Act shall take effect on the date that 

13 is 6 months after the date of enactment of this Act. 

14 (b) TECHNICAL ASSISTANCE MATERIALS.—The Sec15 retary of Labor and the Commissioner of the Equal Em16 ployment Opportunity Commission shall jointly develop 

17 technical assistance material to assist small enterprises in 

18 complying with the requirements of this Act and the 

19 amendments made by this Act. 

20 (c) SMALL BUSINESSES.—A small enterprise shall be 

21 exempt from the provisions of this Act, and the amend22 ments made by this Act, to the same extent that such en23 terprise is exempt from the requirements of the Fair 

24 Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) pur25 suant to clauses (i) and (ii) of section 3(s)(1)(A) of such 

26 Act (29 U.S.C. 203(s)(1)(A)). 


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1 SEC. 13. RULE OF CONSTRUCTION. 

2 Nothing in this Act, or in any amendments made by 

3 this Act, shall affect the obligation of employers and em4 ployees to fully comply with all applicable immigration 

5 laws, including being subject to any penalties, fines, or 

6 other sanctions. 

7 SEC. 14. SEVERABILITY. 

8 If any provision of this Act, an amendment made by 

9 this Act, or the application of that provision or amend10 ment to particular persons or circumstances is held invalid 

11 or found to be unconstitutional, the remainder of this Act, 

12 the amendments made by this Act, or the application of 

13 that provision to other persons or circumstances shall not 

14 be affected. 


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Calendar No. 134 

118TH CONGRESS 

1ST SESSION S. 728 

A BILL 

To amend the Fair Labor Standards Act of 1938 

basis of sex, and for other purposes. discrimination in the payment of wages on the to provide more effective remedies to victims of 

JULY 18, 2023 

Reported without amendment 


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