II 

114TH CONGRESS 

1ST SESSION S. 862 

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 25, 2015 

Ms. MIKULSKI (for herself, Ms. BALDWIN, Mr. BLUMENTHAL, Mrs. GILLIBRAND, Mr. REED, Mrs. SHAHEEN, Ms. STABENOW, Mr. UDALL, Mr. 

REID, Mrs. MURRAY, Ms. HIRONO, Mr. CASEY, Mr. NELSON, Ms. WARREN, and Mr. BROWN) 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 ‘‘Paycheck Fairness 

5 Act’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) Women have entered the workforce in 

4 record numbers over the past 50 years. 

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

6 of 1963, many women continue to earn significantly 

7 lower pay than men for equal work. These pay dis8 parities exist in both the private and governmental 

9 sectors. In many instances, the pay disparities can 

10 only be due to continued intentional discrimination 

11 or the lingering effects of past discrimination. 

12 (3) The existence of such pay disparities— 

13 (A) depresses the wages of working fami14 lies who rely on the wages of all members of the 

15 family to make ends meet; 

16 (B) undermines women’s retirement secu17 rity, which is often based on earnings while in 

18 the workforce; 

19 (C) prevents the optimum utilization of 

20 available labor resources; 

21 (D) has been spread and perpetuated, 

22 through commerce and the channels and instru23 mentalities of commerce, among the workers of 

24 the several States; 

25 (E) burdens commerce and the free flow of 

26 goods in commerce; 


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1 (F) constitutes an unfair method of com2 petition in commerce; 

3 (G) leads to labor disputes burdening and 

4 obstructing commerce and the free flow of 

5 goods in commerce; 

6 (H) interferes with the orderly and fair 

7 marketing of goods in commerce; and 

8 (I) in many instances, may deprive workers 

9 of equal protection on the basis of sex in viola10 tion of the 5th and 14th Amendments. 

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

12 discrimination in the payment of wages on the basis 

13 of sex continue to exist decades after the enactment 

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

15 201 et seq.) and the Civil Rights Act of 1964 (42 

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

17 (B) These barriers have resulted, in significant 

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

19 Congress originally intended. Improvements and 

20 modifications to the law are necessary to ensure that 

21 the Act provides effective protection to those subject 

22 to pay discrimination on the basis of sex. 

23 (C) Elimination of such barriers would have 

24 positive effects, including— 


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1 (i) providing a solution to problems in the 

2 economy created by unfair pay disparities; 

3 (ii) substantially reducing the number of 

4 working women earning unfairly low wages, 

5 thereby reducing the dependence on public as6 sistance; 

7 (iii) promoting stable families by enabling 

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

9 (iv) remedying the effects of past discrimi10 nation on the basis of sex and ensuring that in 

11 the future workers are afforded equal protection 

12 on the basis of sex; and 

13 (v) ensuring equal protection pursuant to 

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

15 Amendments. 

16 (5) The Department of Labor and the Equal 

17 Employment Opportunity Commission have impor18 tant and unique responsibilities to help ensure that 

19 women receive equal pay for equal work. 

20 (6) The Department of Labor is responsible 

21 for— 

22 (A) collecting and making publicly avail23 able information about women’s pay; 

24 (B) ensuring that companies receiving 

25 Federal contracts comply with anti-discriminaVerDate Sep 11 2014 00:03 Apr 03, 2015 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S862.IS S862

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1 tion affirmative action requirements of Execu2 tive Order 11246 (relating to equal employment 

3 opportunity); 

4 (C) disseminating information about wom5 en’s rights in the workplace; 

6 (D) helping women who have been victims 

7 of pay discrimination obtain a remedy; and 

8 (E) being proactive in investigating and 

9 prosecuting equal pay violations, especially sys10 temic violations, and in enforcing all of its man11 dates. 

12 (7) The Equal Employment Opportunity Com13 mission is the primary enforcement agency for 

14 claims made under the Equal Pay Act, and issues 

15 regulations and guidance on appropriate interpreta16 tions of the law. 

17 (8) With a stronger commitment by the Depart18 ment of Labor and the Equal Employment Oppor19 tunity Commission to their responsibilities, increased 

20 information as a result of the amendments made by 

21 this Act to the Equal Pay Act of 1963, wage data, 

22 and more effective remedies, women will be better 

23 able to recognize and enforce their rights. 

24 (9) Certain employers have already made great 

25 strides in eradicating unfair pay disparities in the 


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1 workplace and their achievements should be recog2 nized. 

3 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE4 QUIREMENTS. 

5 (a) BONA FIDE FACTOR DEFENSE AND MODIFICA6 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 

7 6(d)(1) of the Fair Labor Standards Act of 1938 (29 

8 U.S.C. 206(d)(1)) is amended— 

9 (1) by striking ‘‘No employer having’’ and in10 serting ‘‘(A) No employer having’’; 

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

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

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

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

15 ‘‘(B) The bona fide factor defense described in sub16 paragraph (A)(iv) shall apply only if the employer dem17 onstrates that such factor (i) is not based upon or derived 

18 from a sex-based differential in compensation; (ii) is job19 related with respect to the position in question; (iii) is con20 sistent with business necessity; and (iv) accounts for the 

21 differential in compensation at issue. Such defense shall 

22 not apply where the employee demonstrates that an alter23 native employment practice exists that would serve the 

24 same business purpose without producing such differential 


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1 and that the employer has refused to adopt such alter2 native practice. 

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

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

5 employees work for the same employer at workplaces lo6 cated in the same county or a similar political subdivision 

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

8 as limiting broader applications of the term ‘establish9 ment’ consistent with rules prescribed or guidance issued 

10 by the Equal Opportunity Employment Commission.’’. 

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

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

13 amended— 

14 (1) in subsection (a)— 

15 (A) in paragraph (3), by striking ‘‘em16 ployee has filed’’ and all that follows and insert17 ing ‘‘employee— 

18 ‘‘(A) has made a charge or filed any com19 plaint or instituted or caused to be instituted 

20 any investigation, proceeding, hearing, or action 

21 under or related to this Act, including an inves22 tigation conducted by the employer, or has tes23 tified or is planning to testify or has assisted or 

24 participated in any manner in any such inves25 tigation, proceeding, hearing, or action, or has 


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1 served or is planning to serve on an industry 

2 committee; or 

3 ‘‘(B) has inquired about, discussed, or dis4 closed the wages of the employee or another 

5 employee;’’; 

6 (B) in paragraph (5), by striking the pe7 riod at the end and inserting ‘‘; or’’; and 

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

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

10 or a waiver that would prohibit such employee from 

11 disclosing information about the employee’s wages.’’; 

12 and 

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

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

15 in which an employee who has access to the wage informa16 tion of other employees as a part of such employee’s essen17 tial job functions discloses the wages of such other employ18 ees to individuals who do not otherwise have access to such 

19 information, unless such disclosure is in response to a 

20 complaint or charge or in furtherance of an investigation, 

21 proceeding, hearing, or action under section 6(d), includ22 ing an investigation conducted by the employer. Nothing 

23 in this subsection shall be construed to limit the rights 

24 of an employee provided under any other provision of 

25 law.’’. 


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

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

3 amended— 

4 (1) by inserting after the first sentence the fol5 lowing: ‘‘Any employer who violates section 6(d) 

6 shall additionally be liable for such compensatory 

7 damages, or, where the employee demonstrates that 

8 the employer acted with malice or reckless indiffer9 ence, punitive damages as may be appropriate, ex10 cept that the United States shall not be liable for 

11 punitive damages.’’; 

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

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

14 inserting ‘‘any of the preceding sentences of this 

15 subsection’’; 

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

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

18 ‘‘Except with respect to class actions brought to en19 force section 6(d), no employee’’; 

20 (4) by inserting after the sentence referred to 

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

22 any other provision of Federal law, any action 

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

24 as a class action as provided by the Federal Rules 

25 of Civil Procedure.’’; and 


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

2 (A) by striking ‘‘in such action’’ and in3 serting ‘‘in any action brought to recover the li4 ability prescribed in any of the preceding sen5 tences of this subsection’’; and 

6 (B) by inserting before the period the fol7 lowing: ‘‘, including expert fees’’. 

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

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

10 amended— 

11 (1) in the first sentence— 

12 (A) by inserting ‘‘or, in the case of a viola13 tion of section 6(d), additional compensatory or 

14 punitive damages, as described in subsection 

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

16 (B) by inserting before the period the fol17 lowing: ‘‘, or such compensatory or punitive 

18 damages, as appropriate’’; 

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

20 the period the following: ‘‘and, in the case of a viola21 tion of section 6(d), additional compensatory or pu22 nitive damages, as described in subsection (b)’’; 

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

24 sentence’’ and inserting ‘‘the first or second sen25 tence’’; and 


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1 (4) in the last sentence— 

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

3 and inserting ‘‘commenced— 

4 ‘‘(1) in the case’’; 

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

6 or’’; and 

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

8 ‘‘(2) in the case of a class action brought to en9 force section 6(d), on the date on which the indi10 vidual becomes a party plaintiff to the class action.’’. 

11 SEC. 4. TRAINING. 

12 The Equal Employment Opportunity Commission 

13 and the Office of Federal Contract Compliance Programs, 

14 subject to the availability of funds appropriated under sec15 tion 10, shall provide training to Commission employees 

16 and affected individuals and entities on matters involving 

17 discrimination in the payment of wages. 

18 SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND 

19 WOMEN. 

20 (a) PROGRAM AUTHORIZED.— 

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

22 after consultation with the Secretary of Education, 

23 is authorized to establish and carry out a grant pro24 gram. 


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

2 Secretary of Labor may make grants on a competi3 tive basis to eligible entities, to carry out negotiation 

4 skills training programs for girls and women. 

5 (3) ELIGIBLE ENTITIES.—To be eligible to re6 ceive a grant under this subsection, an entity shall 

7 be a public agency, such as a State, a local govern8 ment in a metropolitan statistical area (as defined 

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

10 educational agency, or a local educational agency, a 

11 private nonprofit organization, or a community12 based organization. 

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

14 grant under this subsection, an entity shall submit 

15 an application to the Secretary of Labor at such 

16 time, in such manner, and containing such informa17 tion as the Secretary of Labor may require. 

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

19 grant under this subsection shall use the funds made 

20 available through the grant to carry out an effective 

21 negotiation skills training program that empowers 

22 girls and women. The training provided through the 

23 program shall help girls and women strengthen their 

24 negotiation skills to allow the girls and women to ob25 tain higher salaries and rates of compensation that 


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1 are equal to those paid to similarly situated male 

2 employees. 

3 (b) INCORPORATING TRAINING INTO EXISTING PRO4 GRAMS.—The Secretary of Labor and the Secretary of 

5 Education shall issue regulations or policy guidance that 

6 provides for integrating the negotiation skills training, to 

7 the extent practicable, into programs authorized under— 

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

9 the Elementary and Secondary Education Act of 

10 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 

11 Career and Technical Education Act of 2006 (20 

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

13 1965 (20 U.S.C. 1001 et seq.), and other programs 

14 carried out by the Department of Education that the 

15 Secretary of Education determines to be appro16 priate; and 

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

18 Workforce Innovation and Opportunity Act (29 

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

20 out by the Department of Labor that the Secretary 

21 of Labor determines to be appropriate. 

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

23 of enactment of this Act, and annually thereafter, the Sec24 retary of Labor and the Secretary of Education shall pre25 pare and submit to Congress a report describing the acVerDate Sep 11 2014 00:03 Apr 03, 2015 Jkt 049200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S862.IS S862

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1 tivities conducted under this section and evaluating the ef2 fectiveness of such activities in achieving the purposes of 

3 this Act. 

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

5 The Secretary of Labor shall conduct studies and 

6 provide information to employers, labor organizations, and 

7 the general public concerning the means available to elimi8 nate pay disparities between men and women, including— 

9 (1) conducting and promoting research to de10 velop the means to correct expeditiously the condi11 tions leading to the pay disparities; 

12 (2) publishing and otherwise making available 

13 to employers, labor organizations, professional asso14 ciations, educational institutions, the media, and the 

15 general public the findings resulting from studies, 

16 and other materials, relating to eliminating the pay 

17 disparities; 

18 (3) sponsoring and assisting State and commu19 nity informational and educational programs; 

20 (4) providing information to employers, labor 

21 organizations, professional associations, and other 

22 interested persons on the means of eliminating the 

23 pay disparities; 

24 (5) recognizing and promoting the achievements 

25 of employers, labor organizations, and professional 


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1 associations that have worked to eliminate the pay 

2 disparities; and 

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

4 consider approaches for rectifying, the pay dispari5 ties. 

6 SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

7 PAY EQUITY IN THE WORKPLACE. 

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

9 of Labor’s National Award for Pay Equity in the Work10 place, which shall be awarded, as appropriate, to encour11 age proactive efforts to comply with section 6(d) of the 

12 Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)). 

13 (b) CRITERIA FOR QUALIFICATION.—The Secretary 

14 of Labor shall set criteria for receipt of the award, includ15 ing a requirement that an employer has made a substan16 tial effort to eliminate pay disparities between men and 

17 women, and deserves special recognition as a consequence 

18 of such effort. The Secretary shall establish procedures for 

19 the application and presentation of the award. 

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

21 includes— 

22 (1)(A) a corporation, including a nonprofit cor23 poration; 

24 (B) a partnership; 

25 (C) a professional association; 


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1 (D) a labor organization; and 

2 (E) a business entity similar to an entity de3 scribed in any of subparagraphs (A) through (D); 

4 (2) an entity carrying out an education referral 

5 program, a training program, such as an apprentice6 ship or management training program, or a similar 

7 program; and 

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

9 formed by a combination of any entities described in 

10 paragraph (1) or (2). 

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

12 EMPLOYMENT OPPORTUNITY COMMISSION. 

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

14 U.S.C. 2000e–8) is amended by adding at the end the fol15 lowing: 

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

17 enactment of this subsection, the Commission shall issue 

18 regulations to provide for the collection from employers 

19 of compensation data and other employment-related data, 

20 as analyzed by the sex, race, and national origin of em21 ployees. 

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

23 shall have as its primary consideration the most effective 

24 and efficient means for enhancing the enforcement of Fed25 eral laws prohibiting pay discrimination. For this purpose, 


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1 the Commission shall consider factors including the impo2 sition of burdens on employers, the frequency of required 

3 reports (including which employers should be required to 

4 prepare reports), appropriate protections for maintaining 

5 data confidentiality, and the most effective format, for the 

6 reports resulting from data collection described in para7 graph (1).’’. 

8 SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND 

9 PAY EQUITY DATA COLLECTION. 

10 (a) BUREAU OF LABOR STATISTICS DATA COLLEC11 TION.—The Commissioner of Labor Statistics shall con12 tinue to collect data on women workers in the Current 

13 Employment Statistics survey. 

14 (b) OFFICE OF FEDERAL CONTRACT COMPLIANCE

15 PROGRAMS INITIATIVES.—The Director of the Office of 

16 Federal Contract Compliance Programs shall ensure that 

17 employees of the Office— 

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

19 tools at its disposal, including pay grade method20 ology; 

21 (B) in considering evidence of possible com22 pensation discrimination— 

23 (i) shall not limit its consideration to a 

24 small number of types of evidence; and 


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1 (ii) shall not limit its evaluation of the evi2 dence to a small number of methods of evalu3 ating the evidence; and 

4 (C) shall not require a multiple regression anal5 ysis or anecdotal evidence for a compensation dis6 crimination case; 

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

8 and enforcement activities, shall define ‘‘similarly 

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

10 and not more stringent than the definition provided 

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

12 Equal Employment Opportunity Commission Com13 pliance Manual (2000), and shall consider only fac14 tors that the Office’s investigation reveals were used 

15 in making compensation decisions; and 

16 (3) shall implement a survey to collect informa17 tion on compensation and other employment-related 

18 data and designate not less than half of all non19 construction contractor establishments each year to 

20 prepare and file such survey, and shall review and 

21 utilize the responses to such survey to identify con22 tractor establishments for further evaluation and for 

23 other enforcement purposes as appropriate. 

24 (c) DEPARTMENT OF LABOR DISTRIBUTION OF

25 WAGE DISCRIMINATION INFORMATION.—The Secretary of 


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1 Labor shall make readily available (in print, on the De2 partment of Labor website, and through any other forum 

3 that the Department may use to distribute compensation 

4 discrimination information), accurate information on com5 pensation discrimination, including statistics, explanations 

6 of employee rights, historical analyses of such discrimina7 tion, instructions for employers on compliance, and any 

8 other information that will assist the public in under9 standing and addressing such discrimination. 

10 SEC. 10. AUTHORIZATION OF APPROPRIATIONS. 

11 (a) AUTHORIZATION OF APPROPRIATIONS.—There 

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

13 out this Act. 

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

15 appropriated pursuant to subsection (a) for purposes of 

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

17 for a congressional earmark as defined in clause 9 of rule 

18 XXI of the Rules of the House of Representatives. 

19 SEC. 11. 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 Commissioner of the Equal Em25 ployment Opportunity Commission shall jointly develop 


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1 technical assistance material to assist small businesses in 

2 complying with the requirements of this Act and the 

3 amendments made by this Act. 

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

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

6 that such business is exempt from the requirements of the 

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

8 pursuant to clauses (i) and (ii) of section 3(s)(1)(A) of 

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

10 SEC. 12. RULE OF CONSTRUCTION. 

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

12 this Act, shall affect the obligation of employers and em13 ployees to fully comply with all applicable immigration 

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

Æ 


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