II 

118TH CONGRESS 

1ST SESSION S. 122 

To establish the Payroll Audit Independent Determination program in the 

Department of Labor. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 26, 2023 

Mr. BRAUN introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To establish the Payroll Audit Independent Determination 

program in the Department of Labor. 

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 ‘‘Ensuring Workers Get 

5 PAID Act of 2023’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) In 2018, the Department of Labor launched 

9 the nationwide Payroll Audit Independent DeterVerDate Sep 11 2014 00:38 Feb 04, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S122.IS S122

kjohnson on DSK79L0C42PROD with BILLS
2 

•S 122 IS

1 mination pilot program (referred to in this section as 

2 ‘‘PAID pilot program’’). 

3 (2) The Secretary of Labor, acting through the 

4 Administrator of the Wage and Hour Division, es5 tablished the PAID pilot program to complement en6 forcement and compliance assistance tools under7 taken by the Wage and Hour Division of the De8 partment of Labor. 

9 (3) The Secretary has a longstanding practice 

10 of providing self-audit and office audit programs, as 

11 noted by Secretary Marty Walsh in a response for 

12 the record following a hearing before the Committee 

13 on Education and Labor of the House of Represent14 atives on June 9, 2021. 

15 (4) The Wage and Hour Division, through the 

16 PAID pilot program, worked with employers on a 

17 voluntary basis to remedy unintentional violations of 

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

19 201 et seq.), which is the Federal statute estab20 lishing minimum wage, overtime pay, recordkeeping, 

21 and youth-employment requirements affecting em22 ployees in the private sector and in Federal, State, 

23 and local governments. 

24 (5) The PAID pilot program yielded positive re25 sults for employers and employees. Between April 1, 


kjohnson on DSK79L0C42PROD with BILLS
3 

•S 122 IS

1 2018, and September 15, 2019, the Wage and Hour 

2 Division concluded 74 PAID pilot program cases, 

3 representing less than one percent of all compliance 

4 actions under the Fair Labor Standards Act of 

5 1938, with a total of $4,131,238 in back wages paid 

6 to 7,429 employees through such PAID pilot pro7 gram cases. 

8 (6) Self-audits through the PAID pilot program 

9 by employers returned more back wages to employ10 ees in less time than compliance actions overall. In 

11 fact, during the period described in paragraph (5)— 

12 (A) the average back wages paid per case 

13 for PAID pilot program cases ($55,828) were 

14 more than 4 times the average back wages paid 

15 per compliance action ($11,355); 

16 (B) the average back wages paid per en17 forcement hour for PAID pilot program cases 

18 ($2,864) was more than 10 times greater than 

19 the average back wages paid per enforcement 

20 hour for compliance actions ($279); 

21 (C) on average, nearly 10 times more em22 ployees received back wages in each PAID pilot 

23 program case than in investigations conducted 

24 using traditional methods; 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 122 IS

1 (D) self-audits through the PAID pilot 

2 program averaged 19 hours per case as com3 pared to 41 hours per case for the Secretary 

4 conducted using traditional methods; and 

5 (E) self-audits through the PAID pilot 

6 program reached employers that the Wage and 

7 Hour Division would not typically prioritize for 

8 enforcement, including government establish9 ments and industry sectors with higher wage 

10 occupations. 

11 SEC. 3. DEFINITIONS. 

12 In this Act: 

13 (1) AFFECTED EMPLOYEE.—The term ‘‘af14 fected employee’’ means an employee affected by a 

15 violation of a minimum wage or overtime hours re16 quirement of the Fair Labor Standards Act of 1938 

17 (29 U.S.C. 201 et seq.), excluding any employee 

18 subject to prevailing wage requirements under the 

19 H–1B, H–2B, or H–2A visa programs, subchapter 

20 IV of chapter 31 of title 40, United States Code 

21 (commonly referred to as the ‘‘Davis-Bacon Act’’), 

22 or chapter 67 of title 41, United States Code (com23 monly known as the ‘‘Service Contract Act’’). 


kjohnson on DSK79L0C42PROD with BILLS
5 

•S 122 IS

1 (2) ADMINISTRATOR.—The term ‘‘Adminis2 trator’’ means the Administrator of the Wage and 

3 Hour Division of the Department of Labor. 

4 (3) EMPLOYEE.—The term ‘‘employee’’— 

5 (A) has the meaning given such term in 

6 section 3 of the Fair Labor Standards Act of 

7 1938 (29 U.S.C. 203); and 

8 (B) with respect to an employer, includes 

9 a former employee of such employer. 

10 (4) EMPLOYER.—The term ‘‘employer’’ has the 

11 meaning given such term in section 3 of such Act. 

12 (5) GOOD FAITH.—The term ‘‘good faith’’ 

13 means, with respect to an employer applying for par14 ticipation in the Payroll Audit Independent Deter15 mination program established under section 4, that 

16 such employer is not, at the time such employer sub17 mits an application for such program— 

18 (A) under investigation by the Secretary 

19 for an alleged violation of a minimum wage or 

20 overtime hours requirement of the Fair Labor 

21 Standards Act of 1938 (29 U.S.C. 201 et seq.); 

22 or 

23 (B) subject to a lawsuit related to an al24 leged violation of such a requirement. 


kjohnson on DSK79L0C42PROD with BILLS
6 

•S 122 IS

1 (6) SECRETARY.—The term ‘‘Secretary’’ means 

2 the Secretary of Labor. 

3 (7) SELF-AUDIT.—The term ‘‘self-audit’’ means 

4 an audit conducted by an employer to resolve inac5 curacies by the employer in the computation of 

6 wages and overtime compensation required under 

7 the Fair Labor Standards Act of 1938 within the 

8 statute of limitations described in section 6(a) of the 

9 Portal-to-Portal Act of 1947 (29 U.S.C. 255(a)). 

10 SEC. 4. PAYROLL AUDIT INDEPENDENT DETERMINATION 

11 PROGRAM. 

12 (a) PROGRAM ESTABLISHMENT.—The Administrator 

13 shall establish a Payroll Audit Independent Determination 

14 program (referred to in this section as the ‘‘program’’) 

15 to foster collaboration with employers that inadvertently 

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

17 201 et seq.) to voluntarily remedy, within the statute of 

18 limitations described in section 6(a) of the Portal-to-Por19 tal Act of 1947 (29 U.S.C. 255(a)), unpaid minimum 

20 wages or overtime compensation owed to any affected em21 ployee under the Fair Labor Standards Act of 1938. 

22 (b) APPLICATION REQUIREMENTS.— 

23 (1) RESOURCES FOR COMPLIANCE ASSIST24 ANCE.—Not later than 30 days after the date of en25 actment of this Act, the Administrator shall make 


kjohnson on DSK79L0C42PROD with BILLS
7 

•S 122 IS

1 available to employers resources for assistance in 

2 complying with the Fair Labor Standards Act of 

3 1938, including content regarding wage and hour re4 quirements, which shall be offered online, through 

5 printed materials, and through other outreach activi6 ties. 

7 (2) APPLICATION.—An employer seeking to 

8 participate in the program shall submit an applica9 tion to the Administrator that includes— 

10 (A) materials related to and the results of 

11 a self-audit, including— 

12 (i) an identification of any practice of 

13 such employer identified in a self-audit 

14 that may violate a minimum wage or over15 time compensation requirement of the Fair 

16 Labor Standards Act of 1938; and 

17 (ii) a list of each employee who may 

18 be an affected employee with respect to 

19 such violation, including— 

20 (I) the period of time such em21 ployee would have been affected by 

22 such violation; 

23 (II) payroll records related to 

24 such employee for such period with inVerDate Sep 11 2014 00:38 Feb 04, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S122.IS S122

kjohnson on DSK79L0C42PROD with BILLS
8 

•S 122 IS

1 formation on the hours of work per2 formed by such employee; 

3 (III) calculations of unpaid min4 imum wages or overtime compensation 

5 owed to such employee under the Fair 

6 Labor Standards Act of 1938 with a 

7 description of the methodology of such 

8 calculation and supporting evidence; 

9 and 

10 (IV) contact information for such 

11 employee; 

12 (B) an explanation of the scope of poten13 tial violations of a minimum wage or overtime 

14 compensation requirement of such Act for inclu15 sion in a release of claims under subsection (d); 

16 (C) an assurance that any practice of such 

17 employer that violates a minimum wage or over18 time compensation requirement of the Fair 

19 Labor Standards Act of 1938 that is identified 

20 in the self-audit has been corrected to comply 

21 with such Act; 

22 (D) an assurance that such employer has, 

23 prior to submitting such application, reviewed 

24 the compliance assistance resources made availVerDate Sep 11 2014 00:38 Feb 04, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S122.IS S122

kjohnson on DSK79L0C42PROD with BILLS
9 

•S 122 IS

1 able under paragraph (1) and all program in2 formation, terms, and requirements; 

3 (E) an assurance that, on the date of sub4 mission of such application, such employer— 

5 (i) is not involved in any litigation re6 garding any practice of such employer that 

7 is identified in the self-audit; and 

8 (ii) has not received any communica9 tions from an employee or a representative 

10 of an employee seeking to litigate or settle 

11 claims related to any such practice; and 

12 (F) an assurance that no employee listed 

13 in subparagraph (A)(ii) is subject to a pre14 vailing wage requirement under the H–1B, H– 

15 2B, or H–2A visa programs, subchapter IV of 

16 chapter 31 of title 40, United States Code 

17 (commonly referred to as the ‘‘Davis-Bacon 

18 Act’’), or chapter 67 of title 41, United States 

19 Code (commonly known as the ‘‘Service Con20 tract Act’’). 

21 (c) APPLICATION REVIEW AND APPROVAL.— 

22 (1) REVIEW AND AMENDMENT.—The Adminis23 trator shall review each application submitted by an 

24 employer under subsection (b)(2). As part of such 

25 review, the Administrator shall— 


kjohnson on DSK79L0C42PROD with BILLS
10 

•S 122 IS

1 (A) as necessary, consult with such em2 ployer regarding— 

3 (i) the self-audit and supporting mate4 rials submitted in the application; and 

5 (ii) the process for approval of such 

6 application and settlement of unpaid min7 imum wages or overtime compensation 

8 owed to any affected employee under the 

9 Fair Labor Standards Act of 1938 (29 

10 U.S.C. 201 et seq.); 

11 (B) inform such employer in a timely man12 ner and prior to a determination on the ap13 proval of the application if additional informa14 tion is needed to assess the unpaid minimum 

15 wages or overtime compensation owed to any 

16 affected employee for the violations of such Act 

17 identified in the application through the self18 audit; and 

19 (C) provide such employer an opportunity 

20 to amend such application to revise the scope of 

21 the practices of such employer that violate a 

22 minimum wage or overtime compensation re23 quirement of the Fair Labor Standards Act of 

24 1938 that are identified in the application 

25 through self-audit, to update the list of affected 


kjohnson on DSK79L0C42PROD with BILLS
11 

•S 122 IS

1 employees with respect to the practices at issue 

2 in the self-audit, and to update the calculations 

3 of unpaid minimum wages or overtime com4 pensation owed to any affected employee as a 

5 result of such violations. 

6 (2) APPROVAL.— 

7 (A) IN GENERAL.—If the conditions under 

8 subparagraph (B) are satisfied with respect to 

9 an application submitted under subsection 

10 (b)(2), the Administrator shall— 

11 (i) approve the application— 

12 (I) in the case the application 

13 has not been amended under para14 graph (1)(C), not later than 30 days 

15 after such submission; or 

16 (II) in the case the application 

17 has been amended under paragraph 

18 (1)(C), not later than 30 days after 

19 the date of submission of such amend20 ed application; and 

21 (ii) supervise the settlement under 

22 subsection (d), including the payment of 

23 any unpaid minimum wages or overtime 

24 compensation under the Fair Labor StandVerDate Sep 11 2014 00:38 Feb 04, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S122.IS S122

kjohnson on DSK79L0C42PROD with BILLS
12 

•S 122 IS

1 ards Act of 1938 (29 U.S.C. 201 et seq.) 

2 required through such settlement. 

3 (B) CONDITIONS FOR APPROVAL.—An ap4 plication submitted under subsection (b)(2) 

5 shall be approved under subparagraph (A) if— 

6 (i) within the scope of the violations 

7 identified by the employer through the ap8 plication or an amendment to the applica9 tion under paragraph (1)(C), the Adminis10 trator verifies that the self-audit and cal11 culation of unpaid minimum wages or over12 time compensation owed to any affected 

13 employee under the Fair Labor Standards 

14 Act of 1938 submitted in such application 

15 or amendment are accurate; and 

16 (ii) the employer submitting the appli17 cation— 

18 (I) is determined to be acting in 

19 good faith regarding violations of the 

20 Fair Labor Standards Act of 1938 

21 identified in such application or 

22 amendment; 

23 (II) has not been found by the 

24 Administrator or any court of law to 

25 have violated a minimum wage or 


kjohnson on DSK79L0C42PROD with BILLS
13 

•S 122 IS

1 overtime compensation requirement of 

2 such Act during the 5 years imme3 diately preceding submission of such 

4 application; and 

5 (III) has not been approved for 

6 participation in the program prior to 

7 the submission of such application, 

8 unless— 

9 (aa) such participation was 

10 for a distinct violation of the 

11 Fair Labor Standards Act of 

12 1938 than the practice identified 

13 in the self-audit under subsection 

14 (b)(2); and 

15 (bb) such employer has sub16 mitted the necessary materials 

17 for the Administrator to verify 

18 that such employer is not engag19 ing in the practice addressed by 

20 the previous participation of the 

21 employer in the program. 

22 (d) SETTLEMENT.— 

23 (1) IN GENERAL.—For each employer that sub24 mits an application under subsection (b)(2) that is 


kjohnson on DSK79L0C42PROD with BILLS
14 

•S 122 IS

1 approved under subsection (c)(2), the Administrator 

2 shall— 

3 (A) provide to the employer a description 

4 of the scope of the potential release of claims 

5 for violations of minimum wage or overtime 

6 compensation requirements of the Fair Labor 

7 Standards Act of 1938 (29 U.S.C. 201 et seq.) 

8 and a summary of any unpaid minimum wages 

9 or overtime compensation owed to each affected 

10 employee under such Act for such violations; 

11 and 

12 (B) issue a release form to each affected 

13 employee of such employer that describes the 

14 settlement terms, which shall include a written 

15 explanation of— 

16 (i) the waiver under paragraph 

17 (2)(B); and 

18 (ii) the right of the affected employee 

19 receiving the offer for settlement to decline 

20 the offer for settlement and preserve any 

21 private right of action of the employee to 

22 recover any unpaid minimum wages or 

23 overtime compensation owed to the em24 ployee under the Fair Labor Standards 

25 Act of 1938 as a result of such violations. 


kjohnson on DSK79L0C42PROD with BILLS
15 

•S 122 IS

1 (2) ACCEPTANCE OF SETTLEMENT.— 

2 (A) IN GENERAL.—An affected employee 

3 offered a settlement through a release form 

4 under paragraph (1)(B) may accept or decline 

5 the offer. 

6 (B) WAIVER OF PRIVATE RIGHT OF AC7 TION.—The acceptance by an affected employee 

8 of an offer of settlement under subparagraph 

9 (A) shall, upon payment in full of any amounts 

10 owed to the employee under the settlement, con11 stitute a waiver by such employee of any right 

12 such employee may have under section 16 of 

13 the Fair Labor Standards Act of 1938 (29 

14 U.S.C. 216) to a private right of action to re15 cover unpaid minimum wages or overtime com16 pensation, including any liquidated damages, 

17 for the violations addressed by the settlement. 

18 (3) PAYMENT OF SETTLEMENT.—For each af19 fected employee that accepts a settlement through a 

20 release form under paragraph (1)(B), the employer 

21 shall— 

22 (A) pay such employee the full amount of 

23 unpaid minimum wages or overtime compensa24 tion owed to such employee under the Fair 

25 Labor Standards Act of 1938 (29 U.S.C. 201 


kjohnson on DSK79L0C42PROD with BILLS
16 

•S 122 IS

1 et seq.) for the violations addressed in the set2 tlement; and 

3 (B) submit proof of payment of such full 

4 amount to the Administrator. 

5 (e) ADDITIONAL REQUIREMENTS.— 

6 (1) DENIALS.—In the case of an application 

7 submitted by an employer under subsection (b)(2) 

8 and not approved under subsection (c)(2), the Ad9 ministrator may not— 

10 (A) use information submitted in the appli11 cation in an investigation against the employer; 

12 (B) use the fact such employer applied to 

13 the program as a basis for any future investiga14 tion, except in a case in which the Adminis15 trator has reason to believe that the health and 

16 safety of an employee is at risk due to an al17 leged violation related to a requirement en18 forced by the Secretary involving child labor, 

19 agricultural worker protections, or housing or 

20 transportation requirements under the H–2A or 

21 H–2B visa programs; or 

22 (C) communicate to any affected employee 

23 of such employer in response to receipt of such 

24 application to notify such employee of the pri25 vate right of action of such employee to resolve 


kjohnson on DSK79L0C42PROD with BILLS
17 

•S 122 IS

1 potential violations of the Fair Labor Standards 

2 Act of 1938 (29 U.S.C. 201 et seq.), particu3 larly with respect to the wage practices at issue 

4 in the self-audit. 

5 (2) EXPANSION OF SCOPE.—The Administrator 

6 may not expand the scope of the violations to be in7 vestigated or settled through an employer’s partici8 pation in the program beyond the violations identi9 fied by the employer in the application submitted by 

10 the employer under subsection (b)(2) or the amend11 ed application submitted by the employer under sub12 section (c)(1)(C). 

13 (3) NO PAYMENTS REQUIRED.—The Adminis14 trator may not require any form of payment by an 

15 employer to apply, qualify, or participate in the pro16 gram. 

17 (4) EXEMPTION FROM DISCOVERY.—Any infor18 mation submitted in an application to the program 

19 under subsection (b)(2), or an amendment to such 

20 application under subsection (c)(1)(C), may not be 

21 subject to discovery in a Federal or State court pro22 ceeding without the consent of the employer that 

23 submitted the application. 

24 (f) RETALIATION.—Section 15(a)(3) of the Fair 

25 Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) is 


kjohnson on DSK79L0C42PROD with BILLS
18 

•S 122 IS

1 amended by inserting before the semicolon the following: 

2 ‘‘, or has accepted or declined to accept an offer for settle3 ment under section 4(d) of the Ensuring Workers Get 

4 PAID Act of 2023’’. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS