II 

114TH CONGRESS 

1ST SESSION S. 2070 

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 

SEPTEMBER 22, 2015 

Ms. AYOTTE 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 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 ‘‘Gender Advancement 

5 in Pay Act’’ or the ‘‘GAP Act’’. 


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1 SEC. 2. ENHANCED PROHIBITION ON WAGE DISCRIMINA2 TION. 

3 Section 6(d) of the Fair Labor Standards Act of 

4 1938 (29 U.S.C. 206(d)) is amended— 

5 (1) in paragraph (1)— 

6 (A) in clause (iii), by striking ‘‘or’’ at the 

7 end; 

8 (B) by redesignating clause (iv) as clause 

9 (vi); 

10 (C) by inserting before clause (vi), as re11 designated by subparagraph (B) of this para12 graph, the following: ‘‘(iv) a differential based 

13 on expertise; (v) a shift differential; or’’; and 

14 (D) in clause (vi), as redesignated by sub15 paragraph (B) of this paragraph, by striking 

16 ‘‘any other factor other than sex’’ and inserting 

17 ‘‘a business-related factor other than sex, in18 cluding but not limited to education, training, 

19 or experience’’; 

20 (2) by redesignating paragraph (4) as para21 graph (5); and 

22 (3) by inserting after paragraph (3) the fol23 lowing: 

24 ‘‘(4) If a charge is filed by or on behalf of an em25 ployee for a violation of title VII of the Civil Rights Act 

26 of 1964 (42 U.S.C. 2000e et seq.), and an action is 


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1 brought by or on behalf of the employee for a violation 

2 of this subsection, with respect to the same practice, or 

3 if an action is brought before the Equal Employment Op4 portunity Commission by or on behalf of the employee for 

5 a violation of this subsection, the statute of limitations for 

6 the action involved under section 6 of the Portal-to-Portal 

7 Act of 1947 (29 U.S.C. 255) shall be tolled until the ear8 lier of— 

9 ‘‘(A) the date on which the Equal Employment 

10 Opportunity Commission or the Attorney General 

11 brings an action or provides notification to the em12 ployee with respect to the charge under section 

13 706(f)(1) of the Civil Rights Act of 1964 (42 U.S.C. 

14 2000e–5(f)(1)); or 

15 ‘‘(B) the date that is 270 days after the date 

16 on which such charge is filed.’’. 

17 SEC. 3. NONRETALIATION PROVISION. 

18 Section 15 of the Fair Labor Standards Act of 1938 

19 (29 U.S.C. 215) is amended— 

20 (1) in subsection (a)(3), by striking ‘‘employee 

21 has filed’’ and all that follows and inserting ‘‘em22 ployee— 

23 ‘‘(A) has made a charge or filed any com24 plaint or instituted or caused to be instituted 

25 any investigation, proceeding, hearing, or action 


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1 under or related to this Act, including an inves2 tigation conducted by the employer, or has tes3 tified or is planning to testify or has assisted or 

4 participated in any manner in any such inves5 tigation, proceeding, hearing, or action, or has 

6 served or is planning to serve on an industry 

7 committee; or 

8 ‘‘(B) has inquired about, discussed, or dis9 closed the wages of the employee or another 

10 employee, or has declined to discuss or disclose 

11 the wages of the employee;’’; and 

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

13 ‘‘(c)(1) Subsection (a)(3)(B) shall not apply to an in14 stance in which an employee who has access to the wage 

15 information of other employees as a part of such employ16 ee’s essential job functions discloses the wages of any of 

17 such other employees to an individual who does not other18 wise have access to such information, unless such disclo19 sure is in response to a charge or complaint or in further20 ance of an investigation, proceeding, hearing, or action 

21 under or related to section 6(d), including an investigation 

22 conducted by the employer. 

23 ‘‘(2) Subsection (a)(3)(B) shall not apply to an in24 stance in which an employee engages in an inquiry, discusVerDate Sep 11 2014 00:45 Sep 26, 2015 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2070.IS S2070

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1 sion, or disclosure that is prohibited by the terms and con2 ditions of a provision, applicable to the employee, of— 

3 ‘‘(A) a confidential settlement; 

4 ‘‘(B) a severance agreement; 

5 ‘‘(C) a noncompete, nondisclosure, or non6 disparagement clause of an agreement; or 

7 ‘‘(D) any post-employment agreement similar to 

8 an agreement described in subparagraph (A) or (B), 

9 or a clause described in subparagraph (C). 

10 ‘‘(3) Any employer who requires an employee to sign 

11 a contract or waiver (other than a provision described in 

12 paragraph (2)) that would prohibit the employee from dis13 closing information about the employee’s wages shall be 

14 considered to have committed an unlawful act under sub15 section (a)(3)(B). 

16 ‘‘(4) Nothing in this subsection shall be construed to 

17 limit the rights of an employee provided under any other 

18 provision of law.’’. 

19 SEC. 4. CIVIL PENALTY. 

20 Section 16(e) of the Fair Labor Standards Act of 

21 1938 (29 U.S.C. 216(e)) is amended— 

22 (1) in paragraph (2)— 

23 (A) by striking ‘‘(2)’’ and inserting 

24 ‘‘(2)(A)’’; and 

25 (B) by adding at the end the following: 


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1 ‘‘(B)(i) Any person who willfully violates section 6(d) 

2 shall be subject to— 

3 ‘‘(I) a civil penalty in an amount described in 

4 clause (ii) for each employee affected (less the 

5 amount of any penalty the person has paid under 

6 State law for the wage differential involved); and 

7 ‘‘(II) any penalty that may apply under sub8 paragraph (A). 

9 ‘‘(ii) The amount referred to in clause (i)(I) shall 

10 be— 

11 ‘‘(I) for an employer with not more than 100 

12 employees, the lesser of the amount of the liquidated 

13 damages available under subsection (b) or (c), or 

14 $2,500; 

15 ‘‘(II) for an employer with not less than 101 

16 and not more than 200 employees, the lesser of the 

17 amount of the liquidated damages available under 

18 subsection (b) or (c), or $5,000; 

19 ‘‘(III) for an employer with not less than 201 

20 and not more than 500 employees, the lesser of the 

21 amount of the liquidated damages available under 

22 subsection (b) or (c), or $10,000; and 

23 ‘‘(IV) for an employer with not less than 501 

24 employees, the lesser of the amount of the liquidated 


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1 damages available under subsection (b) or (c), or 

2 $15,000.’’; 

3 (2) in paragraph (3), in the first sentence, by 

4 striking ‘‘this subsection’’ and inserting ‘‘this sub5 section (other than paragraph (2)(B)); and 

6 (3) in paragraph (5)— 

7 (A) in the first sentence, by striking ‘‘vio8 lations of section 12’’ and inserting ‘‘violations 

9 of section 6(d) or section 12’’; and 

10 (B) by inserting after the first sentence 

11 the following: ‘‘Civil penalties collected for viola12 tions of section 6(d) shall be deposited in the 

13 account created under section 5(d) of the GAP 

14 Act.’’. 

15 SEC. 5. STUDY ON HIGH-WAGE, HIGH-DEMAND OCCUPA16 TIONS AND EQUIVALENT PAY. 

17 (a) JOINT STUDY.—Using funds from the account 

18 created under subsection (d), the Secretary of Labor, to19 gether with the Secretary of Education, shall conduct a 

20 multistate study, through a grant to a nonprofit research 

21 institution, that includes strategies to increase the partici22 pation of women in— 

23 (1) high-wage, high-demand occupations; and 

24 (2) industries in which women are underrep25 resented. 


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1 (b) COMPTROLLER GENERAL STUDY.—Using funds 

2 from the account created under subsection (d), the Comp3 troller General of the United States shall conduct a 

4 multistate study to develop strategies described in sub5 section (a). 

6 (c) REPORTS.—Not later than 2 years after the date 

7 of enactment of this Act— 

8 (1) the Secretary of Labor and the Secretary of 

9 Education shall submit to Congress a report con10 taining— 

11 (A) a statement of the findings and conclu12 sions of the study under subsection (a); and 

13 (B) any recommendations the Secretary of 

14 Labor and the Secretary of Education consider 

15 appropriate based on their conclusions; 

16 (2) the Comptroller General shall submit to 

17 Congress a report containing— 

18 (A) a statement of the findings and conclu19 sions of the study under subsection (b); and 

20 (B) any recommendations the Comptroller 

21 General considers appropriate based on its con22 clusions; and 

23 (3) the Secretary of Labor, the Secretary of 

24 Education, and the Comptroller General shall make 


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1 available to the public the reports described in this 

2 subsection. 

3 (d) ACCOUNTS.— 

4 (1) IN GENERAL.—The Secretary of Labor shall 

5 create an account to manage the funds required to 

6 conduct the studies under subsections (a) and (b) 

7 and to complete the reports under subsection (c). 

8 The account shall contain the civil penalties collected 

9 under section 16(e)(2) of the Fair Labor Standards 

10 Act of 1938 (29 U.S.C. 216(e)(2)). 

11 (2) WITHDRAWAL OF FUNDS.—The Secretary 

12 of Labor is authorized to withdraw funds from the 

13 account created under subsection (d) to carry out 

14 the joint study under subsection (a). 

15 (3) TRANSFER OF FUNDS.—At the request of 

16 the Comptroller General, the Secretary of Labor 

17 shall transfer to the Comptroller General the funds 

18 required to carry out the study under subsection (b). 

19 SEC. 6. SMALL BUSINESS ASSISTANCE. 

20 (a) EFFECTIVE DATE.—This Act and the amend21 ments made by this Act shall take effect on the date that 

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

23 (b) TECHNICAL ASSISTANCE MATERIALS.—The Sec24 retary of Labor and the Equal Employment Opportunity 

25 Commission shall jointly develop technical assistance maVerDate Sep 11 2014 00:45 Sep 26, 2015 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2070.IS S2070

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1 terials to assist small businesses in complying with the re2 quirements of this Act and the amendments made by this 

3 Act. 

4 (c) SMALL BUSINESSES.—A small business shall be 

5 exempt from the provisions of this Act, and the amend6 ments made by this Act, to the same extent that such busi7 ness is exempt from the requirements of the Fair Labor 

8 Standards Act of 1938 pursuant to clauses (i) and (ii) 

9 of section 3(s)(1)(A) of such Act (29 U.S.C. 

10 203(s)(1)(A)). 

11 SEC. 7. RULE OF CONSTRUCTION. 

12 Nothing in this Act, or in any amendment made by 

13 this Act, shall affect the obligation of employers and em14 ployees to fully comply with all applicable immigration 

15 laws, including any penalties, fines, or other sanctions. 

Æ 


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