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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 797 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 797

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 12, 2011

  Ms. Mikulski (for herself, Mr. Akaka, Mrs. Boxer, Ms. Cantwell, Mr. 
Cardin, Mr. Casey, Mr. Coons, Mr. Durbin, Mr. Franken, Mrs. Gillibrand, 
 Mr. Harkin, Mr. Kerry, Ms. Klobuchar, Mr. Lautenberg, Mr. Leahy, Mr. 
 Levin, Mrs. McCaskill, Mrs. Murray, Mr. Reed, Mr. Reid, Mrs. Shaheen, 
 Ms. Stabenow, Mr. Whitehouse, Mr. Wyden, Mr. Merkley, and Mrs. Hagan) 
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.

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

SECTION 1. SHORT TITLE.

    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 disparities 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 families who 
                rely on the wages of all members of the family to make 
                ends meet;
                    (B) undermines women's retirement security, 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 instrumentalities 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 competition 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 violation 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. Improvements and modifications to the 
        provisions added by the Act are necessary to ensure that the 
        provisions provide effective protection to 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 assistance;
                    (iii) promoting stable families by enabling all 
                family members to earn a fair rate of pay;
                    (iv) remedying the effects of past discrimination 
                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's power to enforce the 5th and 14th 
                Amendments.
            (5) The Department of Labor and the Equal Employment 
        Opportunity Commission have important and unique 
        responsibilities to help ensure that women receive equal pay 
        for equal work.
            (6) The Department of Labor is responsible for--
                    (A) collecting and making publicly available 
                information about women's pay;
                    (B) ensuring that companies receiving Federal 
                contracts comply with anti-discrimination affirmative 
                action requirements of Executive Order 11246 (relating 
                to equal employment opportunity);
                    (C) disseminating information about women'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 systemic 
                violations, and in enforcing all of its mandates.
            (7) The Equal Employment Opportunity Commission is the 
        primary enforcement agency for claims made under the provisions 
        added by the Equal Pay Act of 1963, and issues regulations and 
        guidance on appropriate interpretations of the law.
            (8) With a stronger commitment by the Department of Labor 
        and the Equal Employment Opportunity Commission to their 
        responsibilities, increased information about the provisions 
        added by the Equal Pay Act of 1963, wage data, 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 recognized.

SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

    (a) Bona Fide Factor Defense and Modification 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 inserting ``(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 subparagraph 
(A)(iv) shall apply only if the employer demonstrates 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; and (iii) is consistent with business necessity. Such defense 
shall not apply where the employee demonstrates that an alternative 
employment practice exists that would serve the same business purpose 
without producing such differential 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 located 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 `establishment' 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 amended--
            (1) in subsection (a)(3), by striking ``employee has 
        filed'' and all that follows through ``committee;'' and 
        inserting ``employee--
                    ``(A) has made a charge or filed any complaint or 
                instituted or caused to be instituted any 
                investigation, proceeding, hearing, or action under or 
                related to this Act, including an investigation 
                conducted by the employer, or has testified or is 
                planning to testify or has assisted or participated in 
                any manner in any such investigation, proceeding, 
                hearing, or action, or has served or is planning to 
                serve on an industry committee; or
                    ``(B) has inquired about, discussed, or disclosed 
                the wages of the employee or another employee;''; 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 information of other employees as a 
part of such employee's essential job functions discloses the wages of 
such other employees to an individual who does not otherwise have 
access to such information, unless such disclosure is in response to a 
charge or complaint or in furtherance of an investigation, proceeding, 
hearing, or action under section 6(d), including an investigation 
conducted by the employer. Nothing 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 following: 
        ``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 
        indifference, punitive damages as may be appropriate, except 
        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 enforce 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 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 inserting 
                ``in any action brought to recover the liability 
                prescribed in any of the preceding sentences of this 
                subsection''; and
                    (B) by inserting before the period the following: 
                ``, 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 violation 
                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 following: 
                ``, 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 violation of section 
        6(d), additional compensatory or punitive damages, as described 
        in subsection (b)'';
            (3) in the third sentence, by striking ``the first 
        sentence'' and inserting ``the first or second sentence''; 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 enforce 
        section 6(d), on the date on which the individual 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 section 10, 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, is authorized to establish and 
        carry out a grant program.
            (2) Grants.--In carrying out the program, the Secretary of 
        Labor may make grants on a competitive basis to eligible 
        entities, to carry out negotiation skills training programs for 
        girls and women.
            (3) Eligible entities.--To be eligible to receive a grant 
        under this subsection, an entity shall be a public agency, such 
        as a State, a local government 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 information 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 
        negotiation skills to allow the girls and women to obtain 
        higher salaries and rates of compensation that are equal to 
        those paid to similarly situated male employees.
    (b) Incorporating Training Into Existing Programs.--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.), 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 appropriate; and
            (2) in the case of the Secretary of Labor, the Workforce 
        Investment Act of 1998 (29 U.S.C. 2801 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 Secretary of Labor and the 
Secretary of Education shall prepare and submit to Congress a report 
describing the activities conducted under this section and evaluating 
the effectiveness 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 eliminate pay disparities between men 
and women, including--
            (1) conducting and promoting research to develop the means 
        to correct expeditiously the conditions leading to the pay 
        disparities;
            (2) publishing and otherwise making available to employers, 
        labor organizations, professional associations, 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 community 
        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;
            (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 disparities.

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 Workplace, which shall be awarded, 
as appropriate, to encourage proactive efforts to comply with section 
6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)).
    (b) Criteria for Qualification.--The Secretary of Labor shall set 
criteria for receipt of the award, including 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 for and presentation of the award.
    (c) Employer.--In this section, the term ``employer'' includes--
            (1)(A) a corporation, including a nonprofit corporation;
            (B) a partnership;
            (C) a professional association;
            (D) a labor organization; and
            (E) a business entity similar to an entity described in any 
        of subparagraphs (A) through (D);
            (2) an entity carrying out an education referral program, a 
        training program, such as an apprenticeship 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 following:
    ``(f)(1) Not later than 18 months after the date of enactment of 
this subsection, the Commission shall--
            ``(A) complete a survey of the data that is currently 
        available to the Federal Government relating to employee pay 
        information for use in the enforcement of Federal laws 
        prohibiting pay discrimination and, in consultation with other 
        relevant Federal agencies, identify additional data collections 
        that will enhance the enforcement of such laws; and
            ``(B) based on the results of the survey and consultations 
        under subparagraph (A), issue regulations to provide for the 
        collection of pay information data from employers as described 
        by the sex, race, and national origin of employees.
    ``(2) In implementing paragraph (1), the Commission shall have as 
its primary consideration the most effective and efficient means for 
enhancing the enforcement of Federal laws prohibiting pay 
discrimination. For this purpose, the Commission shall consider factors 
including the imposition of burdens on employers, the frequency of 
required data collection reports (including which employers should be 
required to prepare reports), appropriate protections for maintaining 
data confidentiality, and the most effective format for the data 
collection reports.''.

SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA 
              COLLECTION.

    (a) Bureau of Labor Statistics Data Collection.--The Commissioner 
of Labor Statistics shall continue 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 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 compensation 
        discrimination--
                    (i) shall not limit its consideration to a small 
                number of types of evidence; and
                    (ii) shall not limit its evaluation of the evidence 
                to a small number of methods of evaluating the 
                evidence; and
            (C) shall not require a multiple regression analysis or 
        anecdotal evidence for a compensation discrimination 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 Compliance Manual (2000), and shall consider only 
        factors that the Office's investigation reveals were used in 
        making compensation decisions; and
            (3) shall reinstate the Equal Opportunity Survey, as 
        required by section 60-2.18 of title 41, Code of Federal 
        Regulations (as in effect on September 7, 2006), designating 
        not less than half of all nonconstruction contractor 
        establishments each year to prepare and file such survey, and 
        shall review and utilize the responses to such survey to 
        identify contractor establishments for further evaluation and 
        for other enforcement purposes as appropriate.
    (c) Department of Labor Distribution of Wage Discrimination 
Information.--The Secretary of Labor shall make readily available (in 
print, on the Department of Labor website, and through any other forum 
that the Department may use to distribute compensation discrimination 
information), accurate information on compensation discrimination, 
including statistics, explanations of employee rights, historical 
analyses of such discrimination, instructions for employers on 
compliance, and any other information that will assist the public in 
understanding and addressing such discrimination.

SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

    (a) Authorization of Appropriations.--There is authorized to be 
appropriated $15,000,000 to carry out this Act.
    (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. 11. SMALL BUSINESS ASSISTANCE.

    (a) Effective Date.--This Act and the amendments 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 Secretary of Labor and the 
Commissioner of the Equal Employment Opportunity Commission shall 
jointly develop technical assistance material to assist small 
businesses in 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 to the same extent that such business 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. 12. RULE OF CONSTRUCTION.

    Nothing in this Act, or in any amendment made by this Act, shall 
affect the obligation of employers and employees to fully comply with 
all applicable immigration laws, including any penalties, fines, or 
other sanctions.
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