IIB 

110TH CONGRESS 

2D SESSION H. R. 1338 

IN THE SENATE OF THE UNITED STATES 

AUGUST 1, 2008 

Received; read twice and referred to the Committee on Health, Education, 

Labor, and Pensions 

AN ACT 

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, 


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1 SECTION 1. SHORT TITLE. 

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

3 Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

6 (1) Women have entered the workforce in 

7 record numbers over the past 50 years. 

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

9 in 1963, many women continue to earn significantly 

10 lower pay than men for equal work. These pay dis11 parities exist in both the private and governmental 

12 sectors. In many instances, the pay disparities can 

13 only be due to continued intentional discrimination 

14 or the lingering effects of past discrimination. 

15 (3) The existence of such pay disparities— 

16 (A) depresses the wages of working fami17 lies who rely on the wages of all members of the 

18 family to make ends meet; 

19 (B) undermines women’s retirement secu20 rity, which is often based on earnings while in 

21 the workforce; 

22 (C) prevents the optimum utilization of 

23 available labor resources; 

24 (D) has been spread and perpetuated, 

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1 mentalities of commerce, among the workers of 

2 the several States; 

3 (E) burdens commerce and the free flow of 

4 goods in commerce; 

5 (F) constitutes an unfair method of com6 petition in commerce; 

7 (G) leads to labor disputes burdening and 

8 obstructing commerce and the free flow of 

9 goods in commerce; 

10 (H) interferes with the orderly and fair 

11 marketing of goods in commerce; and 

12 (I) in many instances, may deprive workers 

13 of equal protection on the basis of sex in viola14 tion of the 5th and 14th amendments. 

15 (4)(A) Artificial barriers to the elimination of 

16 discrimination in the payment of wages on the basis 

17 of sex continue to exist decades after the enactment 

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

19 201 et seq.) and the Civil Rights Act of 1964 (42 

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

21 (B) These barriers have resulted, in significant 

22 part, because the Equal Pay Act has not worked as 

23 Congress originally intended. Improvements and 

24 modifications to the law are necessary to ensure that 


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1 the Act provides effective protection to those subject 

2 to pay discrimination on the basis of their sex. 

3 (C) Elimination of such barriers would have 

4 positive effects, including— 

5 (i) providing a solution to problems in the 

6 economy created by unfair pay disparities; 

7 (ii) substantially reducing the number of 

8 working women earning unfairly low wages, 

9 thereby reducing the dependence on public as10 sistance; 

11 (iii) promoting stable families by enabling 

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

13 (iv) remedying the effects of past discrimi14 nation on the basis of sex and ensuring that in 

15 the future workers are afforded equal protection 

16 on the basis of sex; and 

17 (v) ensuring equal protection pursuant to 

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

19 amendments. 

20 (5) The Department of Labor and the Equal 

21 Employment Opportunity Commission have impor22 tant and unique responsibilities to help ensure that 

23 women receive equal pay for equal work. 

24 (6) The Department of Labor is responsible 

25 for— 


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1 (A) collecting and making publicly avail2 able information about women’s pay; 

3 (B) ensuring that companies receiving 

4 Federal contracts comply with anti-discrimina5 tion affirmative action requirements of Execu6 tive Order 11246 (relating to equal employment 

7 opportunity); 

8 (C) disseminating information about wom9 en’s rights in the workplace; 

10 (D) helping women who have been victims 

11 of pay discrimination obtain a remedy; and 

12 (E) being proactive in investigating and 

13 prosecuting equal pay violations, especially sys14 temic violations, and in enforcing all of its man15 dates. 

16 (7) The Equal Employment Opportunity Com17 mission is the primary enforcement agency for 

18 claims made under the Equal Pay Act, and issues 

19 regulations and guidance on appropriate interpreta20 tions of the law. 

21 (8) With a stronger commitment by the Depart22 ment of Labor and the Equal Employment Oppor23 tunity Commission to their responsibilities, increased 

24 information about the provisions added by the Equal 

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1 edies, women will be better able to recognize and en2 force their rights. 

3 (9) Certain employers have already made great 

4 strides in eradicating unfair pay disparities in the 

5 workplace and their achievements should be recog6 nized. 

7 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE8 QUIREMENTS. 

9 (a) BONA-FIDE FACTOR DEFENSE AND MODIFICA10 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 

11 6(d)(1) of the Fair Labor Standards Act of 1938 (29 

12 U.S.C. 206(d)(1)) is amended— 

13 (1) by striking ‘‘No employer having’’ and in14 serting ‘‘(A) No employer having’’; 

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

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

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

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

19 ‘‘(B) The bona fide factor defense described in sub20 paragraph (A)(v) shall apply only if the employer dem21 onstrates that such factor (i) is not based upon or derived 

22 from a sex-based differential in compensation; (ii) is job23 related with respect to the position in question; and (iii) 

24 is consistent with business necessity. Such defense shall 

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1 native employment practice exists that would serve the 

2 same business purpose without producing such differential 

3 and that the employer has refused to adopt such alter4 native practice. 

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

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

7 employees work for the same employer at workplaces lo8 cated in the same county or similar political subdivision 

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

10 as limiting broader applications of the term ‘establish11 ment’ consistent with rules prescribed or guidance issued 

12 by the Equal Opportunity Employment Commission.’’. 

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

14 Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) 

15 is amended— 

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

17 has filed’’ and all that follows and inserting ‘‘em18 ployee— 

19 ‘‘(A) has made a charge or filed any com20 plaint or instituted or caused to be instituted 

21 any investigation, proceeding, hearing, or action 

22 under or related to this Act, including an inves23 tigation conducted by the employer, or has tes24 tified or is planning to testify or has assisted or 

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1 tigation, proceeding, hearing or action or in an 

2 investigation conducted by the employer, or has 

3 served or is planning to serve on an industry 

4 Committee; or 

5 ‘‘(B) has inquired about, discussed or dis6 closed the wages of the employee or another 

7 employee.’’; 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) or an 

17 investigation conducted by the employer. Nothing in this 

18 subsection shall be construed to limit the rights of an em19 ployee provided under any other provision of law.’’. 

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

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

22 amended— 

23 (1) by inserting after the first sentence the fol24 lowing: ‘‘Any employer who violates section 6(d) 

25 shall additionally be liable for such compensatory 


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1 damages, or, where the employee demonstrates that 

2 the employer acted with malice or reckless indiffer3 ence, punitive damages as may be appropriate, ex4 cept that the United States shall not be liable for 

5 punitive damages.’’; 

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

7 by striking ‘‘either of the preceding sentences’’ and 

8 inserting ‘‘any of the preceding sentences of this 

9 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,’’ before ‘‘and the agree10 ment’’; 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’’; 

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 last 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 FOR GIRLS AND 

15 WOMEN. 

16 (a) PROGRAM AUTHORIZED.— 

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

18 after consultation with the Secretary of Education, 

19 is authorized to establish and carry out a grant pro20 gram. 

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

22 Secretary of Labor may make grants on a competi23 tive basis to eligible entities, to carry out negotiation 

24 skills training programs for girls and women. 


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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 that empowers 

18 girls and women. The training provided through the 

19 program shall help girls and women strengthen their 

20 negotiation skills to allow the girls and women to ob21 tain higher salaries and rates of compensation that 

22 are equal to those paid to similarly-situated male 

23 employees. 

24 (b) INCORPORATING TRAINING INTO EXISTING PRO25 GRAMS.—The Secretary of Labor and the Secretary of 


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1 Education shall issue regulations or policy guidance that 

2 provides for integrating the negotiation skills training, to 

3 the extent practicable, into programs authorized under— 

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

5 the Elementary and Secondary Education Act of 

6 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 

7 Vocational and Technical Education Act of 1998 (20 

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

9 1965 (20 U.S.C. 1001 et seq.), and other programs 

10 carried out by the Department of Education that the 

11 Secretary of Education determines to be appro12 priate; and 

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

14 Workforce Investment Act of 1998 (29 U.S.C. 2801 

15 et seq.), and other programs carried out by the De16 partment of Labor that the Secretary of Labor de17 termines to be appropriate. 

18 (c) REPORT.—Not later than 1 year after the date 

19 of enactment of this Act, and annually thereafter, the Sec20 retary of Labor and the Secretary of Education shall pre21 pare and submit to Congress a report describing the ac22 tivities conducted under this section and evaluating the ef23 fectiveness of such activities in achieving the purposes of 

24 this Act. 


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

2 The Secretary of Labor shall conduct studies and 

3 provide information to employers, labor organizations, and 

4 the general public concerning the means available to elimi5 nate pay disparities between men and women, including— 

6 (1) conducting and promoting research to de7 velop the means to correct expeditiously the condi8 tions leading to the pay disparities; 

9 (2) publishing and otherwise making available 

10 to employers, labor organizations, professional asso11 ciations, educational institutions, the media, and the 

12 general public the findings resulting from studies 

13 and other materials, relating to eliminating the pay 

14 disparities; 

15 (3) sponsoring and assisting State and commu16 nity informational and educational programs; 

17 (4) providing information to employers, labor 

18 organizations, professional associations, and other 

19 interested persons on the means of eliminating the 

20 pay disparities; 

21 (5) recognizing and promoting the achievements 

22 of employers, labor organizations, and professional 

23 associations that have worked to eliminate the pay 

24 disparities; and 


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1 (6) convening a national summit to discuss, and 

2 consider approaches for rectifying, the pay dispari3 ties. 

4 SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

5 PAY EQUITY IN THE WORKPLACE. 

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

7 of Labor’s National Award for Pay Equity in the Work8 place, which shall be awarded, as appropriate, to encour9 age proactive efforts to comply with this Act. 

10 (b) CRITERIA FOR QUALIFICATION.—The Secretary 

11 of Labor shall set criteria for receipt of the award, includ12 ing a requirement that an employer has made substantial 

13 effort to eliminate pay disparities between men and 

14 women, and deserves special recognition as a consequence 

15 of such effort. The secretary shall establish procedures for 

16 the application and presentation of the award. 

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

18 includes— 

19 (1)(A) a corporation, including a nonprofit cor20 poration; 

21 (B) a partnership; 

22 (C) a professional association; 

23 (D) a labor organization; and 

24 (E) a business entity similar to an entity de25 scribed in any of subparagraphs (A) through (D); 


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1 (2) an entity carrying out an education referral 

2 program, a training program, such as an apprentice3 ship or management training program, or a similar 

4 program; and 

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

6 formed by a combination of any entities described in 

7 paragraph (1) or (2). 

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

9 EMPLOYMENT OPPORTUNITY COMMISSION. 

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

11 U.S.C. 2000e–8) is amended by adding at the end the fol12 lowing: 

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

14 enactment of this subsection, the Commission shall— 

15 ‘‘(A) complete a survey of the data that is cur16 rently available to the Federal Government relating 

17 to employee pay information for use in the enforce18 ment of Federal laws prohibiting pay discrimination 

19 and, in consultation with other relevant Federal 

20 agencies, identify additional data collections that will 

21 enhance the enforcement of such laws; and 

22 ‘‘(B) based on the results of the survey and 

23 consultations under subparagraph (A), issue regula24 tions to provide for the collection of pay information 


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1 data from employers as described by the sex, race, 

2 and national origin of employees. 

3 ‘‘(2) In implementing paragraph (1), the Commission 

4 shall have as its primary consideration the most effective 

5 and efficient means for enhancing the enforcement of Fed6 eral laws prohibiting pay discrimination. For this purpose, 

7 the Commission shall consider factors including the impo8 sition of burdens on employers, the frequency of required 

9 reports (including which employers should be required to 

10 prepare reports), appropriate protections for maintaining 

11 data confidentiality, and the most effective format for the 

12 data collection reports.’’. 

13 SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND 

14 PAY EQUITY DATA COLLECTION. 

15 (a) BUREAU OF LABOR STATISTICS DATA COLLEC16 TION.—The Commissioner of Labor Statistics shall con17 tinue to collect data on women workers in the Current 

18 Employment Statistics survey. 

19 (b) OFFICE OF FEDERAL CONTRACT COMPLIANCE

20 PROGRAMS INITIATIVES.—The Director of the Office of 

21 Federal Contract Compliance Programs shall ensure that 

22 employees of the Office— 

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

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

25 methodology; 


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1 (B) in considering evidence of possible com2 pensation discrimination— 

3 (i) shall not limit its consideration to a 

4 small number of types of evidence; and 

5 (ii) shall not limit its evaluation of the evi6 dence to a small number of methods of evalu7 ating the evidence; and 

8 (C) shall not require a multiple regression anal9 ysis or anecdotal evidence for a compensation dis10 crimination case; 

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

12 and enforcement activities, shall define ‘‘similarly 

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

14 and not more stringent than the definition provided 

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

16 Equal Employment Opportunity Commission Com17 pliance Manual (2000), and shall consider only fac18 tors that the Office’s investigation reveals were used 

19 in making compensation decisions; and 

20 (3) shall reinstate the Equal Opportunity Sur21 vey, as required by section 60–2.18 of title 41, Code 

22 of Federal Regulations, designating not less than 

23 half of all nonconstruction contractor establishments 

24 each year to prepare and file such survey, and shall 

25 review and utilize the responses to such survey to 


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1 identify contractor establishments for further evalua2 tion and for other enforcement purposes as appro3 priate. 

4 (c) DEPARTMENT OF LABOR DISTRIBUTION OF

5 WAGE DISCRIMINATION INFORMATION.—The Secretary of 

6 Labor shall make readily available (in print, on the De7 partment of Labor website, and through any other forum 

8 that the Department may use to distribute compensation 

9 discrimination information), accurate information on com10 pensation discrimination, including statistics, explanations 

11 of employee rights, historical analyses of such discrimina12 tion, instructions for employers on compliance, and any 

13 other information that will assist the public in under14 standing and addressing such discrimination. 

15 SEC. 10. AUTHORIZATION OF APPROPRIATIONS. 

16 (a) AUTHORIZATION OF APPROPRIATIONS.—There 

17 are authorized to be appropriated $15,000,000 to carry 

18 out this Act. 

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

20 appropriated pursuant to subsection (a) for purposes of 

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

22 for a Congressional earmark as defined in clause 9(d) of 

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


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1 SEC. 11. SMALL BUSINESS ASSISTANCE. 

2 (a) EFFECTIVE DATE.—This Act and the amend3 ments made by this Act shall take effect on the date that 

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

5 (b) TECHNICAL ASSISTANCE MATERIALS.—The Sec6 retary of Labor and the Commissioner of the Equal Em7 ployment Opportunity Commission shall jointly develop 

8 technical assistance material to assist small businesses in 

9 complying with the requirements of this Act and the 

10 amendments made by this Act. 

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

12 exempt from the provisions of this Act to the same extent 

13 that such business is exempt from the requirements of the 

14 Fair Labor Standards Act pursuant to section 

15 3(s)(1)(A)(i) and (ii) of such Act. 

16 SEC. 12. RULE OF CONSTRUCTION. 

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

18 this Act, shall affect the obligation of employers and em19 ployees to fully comply with all applicable immigration 

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

Passed the House of Representatives July 31, 2008. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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