II 116th CONGRESS 1st Session S. 2468 IN THE SENATE OF THE UNITED STATES September 11, 2019 Mr. Brown introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To require employers to provide training to employees whose jobs are in danger of being changed or replaced due to technology, and for other purposes.

1. Short title This Act may be cited as the Workers' Right to Training Act . 2. Definitions In this Act: (1) Affected employee The term affected employee means an employee who may reasonably be expected to experience a change in employment position or an employment loss as a consequence of the use of technology by the employer of the employee. (2) Change in employment position The term change in employment position means a material change— (A) in pay or benefits, working conditions, or schedule of an employee; or (B) that results in an unreasonable commute for the employee. (3) Committee of employees The term committee of employees means a committee of nonsupervisory, nonmanagerial employees of an employer. (4) Employee The term employee means any individual who provides labor or services for remuneration by an employer, unless the employer demonstrates that all of the following conditions are satisfied: (A) The individual is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. (B) The individual performs work that is outside the usual course of the hiring entity’s business. (C) The individual is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. (5) Employer (A) In general The term employer means any business enterprise, including the nominal employer and any entity that is a parent of, or is integrated with, the business enterprise, that— (i) is engaged in interstate commerce or in the production of goods or services for interstate commerce; and (ii) employs not less than 25 employees, including part-time employees. (B) Multiple employers Two or more business enterprises shall each be considered an employer with respect to an employee, if each such business enterprise codetermines or shares control over the employee’s essential terms and conditions of employment. In determining whether multiple business enterprises are employers of an employee— (i) it shall be relevant to consider whether each enterprise has— (I) direct control and indirect control over the terms and conditions of the employee; (II) reserved authority to control such terms and conditions; and (III) control over such terms and conditions exercised by a person in fact; and (ii) the existence of indirect control or reserved authority alone by a business enterprise may be sufficient to establish the employer relationship, given specific facts and circumstances. (C) Definitions For the purposes of this paragraph: (i) Integrated The term integrated , when used with respect to a business enterprise, means a business enterprise whose relationship with another business enterprise includes— (I) common ownership; (II) common directors or officers; (III) de facto exercise of control; (IV) unity of personnel policies emanating from a common source; or (V) dependency of operations. (ii) Parent The term parent means a business enterprise that participates directly or indirectly in making decisions that affect employees of another business enterprise. (6) Employment loss The term employment loss means— (A) an employment termination, other than a discharge for cause, voluntary departure, or retirement; or (B) a reduction in hours of work of more than 50 percent during each month of any 6-month period. (7) Institution of higher education The term institution of higher education has the meaning given the term in section 101 of the Higher Education Act of 1965 ( 20 U.S.C. 1001 ). (8) Recognized postsecondary credential The term recognized postsecondary credential has the meaning given the term in section 3 of the Workforce Innovation and Opportunity Act ( 29 U.S.C. 3102 ). (9) Registered apprenticeship The term registered apprenticeship means an apprenticeship registered under the Act of August 16, 1937 (commonly known as the National Apprenticeship Act ; 50 Stat. 664, chapter 663; 29 U.S.C. 50 et seq.). (10) Representative The term representative means an exclusive representative of employees within the meaning of section 9(a) or 8(f) of the National Labor Relations Act ( 29 U.S.C. 159(a) , 158(f)) or section 2 of the Railway Labor Act ( 45 U.S.C. 152 ). (11) Technology (A) In general The term technology means a computerized process used to create value at a business enterprise, including automation, artificial intelligence, robotics, personal computing, information technology, and e-commerce. (B) Regulations The Secretary of Labor, in consultation with the Secretary of Commerce, shall promulgate regulations further defining the term technology for purposes of this Act. 3. Bargaining and notice required before use of employment-changing or employment-eliminating technology (a) Bargaining with employees before use of employment-Changing or employment-Eliminating technology (1) In general Not later than 180 days before providing any notices under subsection (b), an employer that intends to use technology that will result in a change in employment position or an employment loss to any employees of the employer shall engage in bargaining with such employees through their chosen representative in order to ensure the technology is procured and implemented in a way that incorporates the skills and roles of the employees of the employer. (2) Chosen representatives An employer shall carry out the bargaining required under paragraph (1) with— (A) in the case of affected employees who are represented by a labor organization for purposes of collective bargaining, a representative from the labor organization; or (B) in the case of affected employees who are not represented by a labor organization for purposes of collective bargaining, with a committee of employees who are elected by their peers for purposes of the bargaining. (3) Mediation upon failure to agree (A) Request If an employer and the chosen representative of employees are unable to obtain an agreement under paragraph (1) by 180 days after the commencement of the bargaining, the parties shall notify the Federal Mediation and Conciliation Service of the failure to reach agreement and request mediation. (B) Role of service The Federal Mediation and Conciliation Service shall, upon receiving a request under subparagraph (A), promptly communicate with the parties and work to bring the parties to agreement through mediation and conciliation. (4) Interaction with NLRA A committee of employees constituted for purposes of this subsection shall not be found to constitute a labor organization, as defined in section 2 of the National Labor Relations Act ( 29 U.S.C. 152 ). (b) Notice to employees for change in employment positions (1) In general An employer that intends to use technology that will result in a change in employment position for one or more employees of the employer shall, not later than 180 days before any such change in employment position, provide written notice signed by the employer’s authorized representative— (A) of the technology, including a description of the technology, and the impact of the technology on employment positions, including which employment positions will be impacted and whether any new positions will be created; and (B) regarding the required training that the employer will provide under section 4. (2) Provision of notice The written notice under paragraph (1) shall be— (A) provided to each chosen representative of the affected employees, as of the date of the notice, and to each affected employee; (B) distributed electronically if the employer customarily communicates with its employees through electronic communications; and (C) posted publicly in conspicuous locations in the workplace, including all places where notices to employees are commonly posted by the employer. (c) Notice to employees subject to an employment loss An employer that intends to use technology that will cause an employment loss for one or more employees of the employer shall, not later than 270 days before any such employment loss, provide and post written notice that includes the information described in subsection (b)(1), in the same manner as described in subsection (b)(2). 4. Required training and benefits (a) Changes in employment position (1) In general An employer who is required under section 3(b) to provide notice of technology that will result in a change in employment position and require different skills due to the use of technology for one or more employees shall, beginning not later than 180 days before changing employee positions due to technology, provide on-the-job training described in paragraph (2) to each affected employee who will be impacted by the technology. (2) Type of training The training provided under paragraph (1) shall— (A) be training that prepares the employee to be able to fulfill the new duties of the position, without regard to the length of time the training will take; and (B) be supplemented, as necessary, by employer-paid training— (i) through a registered apprenticeship program; (ii) that leads to a recognized postsecondary credential (which may be an industry-recognized credential) offered by an institution of higher education; or (iii) that leads to an industry-recognized credential offered by a nonprofit organization that is an eligible provider under section 122(d) of the Workforce Innovation and Opportunity Act ( 29 U.S.C. 3152(d) ). (b) Employment loss (1) Priority and training An employer who is required under section 3(c) to provide notice of technology that will result in employment loss for one or more employees of the employer shall— (A) give hiring priority to affected employees for any new or open positions of the employer for 1 year after the date of the notice; (B) beginning not later than 180 days before the employment loss, provide job training described in paragraph (2) for not less than 1 year to prepare the employee for— (i) another position with the employer that provides wages comparable to the employee’s original position; or (ii) an occupation that provides wages comparable to the employee’s original position with a different employer; and (C) on the day that the employee experiences the employment loss, provide the affected employee with 6 months of severance pay, in a total amount equal to 6 months of the employee's wages in the employee's prior position. (2) Type of training (A) In general The training provided under paragraph (1) (except for training described in paragraph (1)(B)(ii)) shall be training that is— (i) chosen by the employee; and (ii) provided at the worksite or supplemented as necessary by employer-paid training— (I) through a registered apprenticeship program; or (II) that leads to a recognized postsecondary credential offered by an institution of higher education. (B) Offsite training rules If training required under subparagraph (A) is supplemented by offsite training, then the employer shall permit the employee to participate in that training during work hours, as long as the employee works a minimum of 15 hours a week. (C) Training for a new occupation In the case of an employer who chooses to provide training under paragraph (1)(B)(ii) to an affected employee, the employer shall provide the employee with a voucher of $8,000 that the employee may use at any eligible provider of training services under section 122 of the Workforce Innovation and Opportunity Act ( 29 U.S.C. 3152 ). (c) Basic skills training (1) In general If an employee subject to a change in employment position or employment loss would need, in addition to job training for a new position, additional basic skills (such as a high school diploma or its equivalent) to meet the requirements for the new employment position, the employer of the employee shall provide the employee with 180 days of training to assist the employee in gaining the minimum basic skills necessary. (2) Interaction with other training Basic skills training provided to an employee under this subsection, and the 180-day period for its provision, shall be in addition to any other training to which the employee has a right under this Act. (3) Location of training The basic skills training provided under paragraph (1) may be provided through an on-site or off-site basic skills program. (d) No reduction in pay An employer shall provide any training required under subsection (a), (b), or (c) during the affected employee's work hours and shall not reduce an employee's pay or benefits while the employee is receiving training. (e) Social Security Administration documentation An employer that provides an affected employee with any compensation under this section shall submit documentation to the Social Security Administration to ensure that any compensation distributed to employees under this Act is allocated to the appropriate calendar year. 5. Protections for employees No employer shall discharge or in any manner discriminate against any employee of the employer with respect to the employee's compensation, terms, conditions, or other privileges of employment because— (1) the employee has received training or severance pay under this Act; or (2) the employee (or an individual acting at the request of the employee) has— (A) requested new employment for the employee with the employer under this Act; or (B) otherwise asserted or sought to enforce the employee's rights under this Act. 6. Administration and enforcement of requirements (a) Civil actions against employers (1) Violations of notice, pay, and training requirements (A) In general An affected employee aggrieved of a violation of section 3, 4, or 5 by an employer, or the chosen representative of such affected employee, may bring a civil action in accordance with this subsection. (B) Remedies A court shall award an affected employee who prevails in a civil action brought under subparagraph (A)— (i) subject to subparagraphs (C) and (D)— (I) any back pay or unpaid wages due to the employee because of the violation, at a rate of compensation not less than the higher of— (aa) the average regular rate received by such employee during the last year of the employee's employment before the violation; or (bb) the final regular rate received by such employee before the violation; (II) the cost of any benefits lost under an employee benefit plan described in section 3(3) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1002(3) ) due to the violation, including the cost of medical expenses incurred during an employment loss that would have been covered under an employee benefit plan if the violation had not occurred; and (III) any amounts due the employee under section 4(b)(1)(C); (ii) any such amounts as appropriate to remedy any violation of this Act, including any punitive and consequential economic damages, that the court determines appropriate; and (iii) any equitable relief, including injunctive relief, the court determines necessary to remedy the violation of this Act, which, for a violation of section 5, may include employment, reinstatement, promotion, or any other appropriate relief. (C) Period The amount of damages under subparagraph (B)(i) shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed by the employer. (D) Reductions in liability The amount of damages— (i) under subparagraph (B)(i)(I) shall be reduced by— (I) any wages paid by the employer to the employee for the period of the violation; (II) any voluntary and unconditional payment by the employer to the employee that is not required by any legal obligation; and (III) any payment by the employer to a third party or trustee (such as premiums for health benefits or payments to a defined contribution pension plan) on behalf of and attributable to the employee for the period of the violation; and (ii) under subparagraph (B)(i)(II) may be reduced by crediting the employee with service for all purposes under a defined benefit pensions plan for the period of the violation. (2) Venue An employee or a representative of an employee may bring a civil action under paragraph (1) on behalf of the employee, other similarly situated employees, or both, in— (A) the judicial district in which the employer has its principal office; or (B) a judicial district in which— (i) (I) the violation is alleged to have occurred; (II) the employment records relevant to such practice are maintained and administered; or (III) the aggrieved individual would have worked but for the alleged unlawful employment practice; and (ii) the employer is found. (3) Attorney's fees The court shall award an attorney's fee (including expert fees) that the court determines reasonable as part of the costs to a prevailing party in a civil action under paragraph (1). (4) Limitation on private action while action of Secretary is pending If the Secretary or the attorney general of a State has instituted an enforcement action under subsection (b), an individual employee may not bring an action under this subsection during the pendency of the proceeding against any person with respect to whom the Secretary has instituted the proceeding. (b) Enforcement actions (1) Actions by the Secretary (A) Civil actions The Secretary may bring an action in any court of competent jurisdiction to recover on behalf of an employee remedies described in subsection (a)(1). (B) Sums recovered Any sums recovered by the Secretary on behalf of an employee under subsection (a)(1) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each employee affected. Any such sums not paid to an employee because of inability to do so within a period of 3 years shall be credited as an offsetting collection to the appropriations account of the Secretary for expenses for the administration of this Act and shall remain available to the Secretary until expended. (C) Action to compel relief by Secretary The district courts of the United States shall have jurisdiction, for cause shown, over an action brought by the Secretary to restrain the withholding of payment of back pay, benefits, or other compensation, plus interest, found by the court to be due to employees under this Act. (2) State enforcement In any case in which the attorney general of a State has reason to believe that an interest of employees of that State has been or is threatened or adversely affected by a violation of this Act, the attorney general of the State may, as parens patriae, bring a civil action on behalf of the employees of the State in an appropriate State court or district court of the United States to obtain any relief described in paragraph (1)(A) on behalf of residents in the State. Any sums recovered by the State shall be administered by the attorney general of the State in the same manner as described in paragraph (1)(B). (c) Civil fines (1) In general Any employer who violates the provisions of section 3, 4, or 5 shall be subject to a civil fine, assessed by the Secretary of Labor, of not more than $5,000 for each employee and for each day of such violation. (2) Rule of construction Nothing in paragraph (1) shall be construed to preclude an employee of an employer assessed a civil fine under such paragraph from bringing a civil action against the employer under subsection (a). (3) Good faith If an employer that has violated this Act proves to the satisfaction of the court that the act or omission that violated this Act was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this Act, the court may, in its discretion, reduce the civil fine under this subsection. 7. Rules regarding rights and remedies (a) Rights and remedies not subject to waiver (1) In general The rights and remedies provided under this Act (including the right to maintain a civil action) may not be waived, deferred, or lost pursuant to any agreement or settlement other than an agreement or settlement described in paragraph (2). (2) Agreement or settlement An agreement or settlement referred to in paragraph (1) is an agreement or settlement negotiated by the Secretary, an attorney general of any State, a private attorney on behalf of affected employees, or a designated representative of affected employees under the National Labor Relations Act ( 29 U.S.C. 151 et seq.) or the Railway Labor Act ( 45 U.S.C. 151 et seq.). (b) Interaction with other rights and remedies The rights and remedies provided to employees by this Act are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of the employees, and are not intended to alter or affect such rights and remedies, except that the period of notification required by this Act shall run concurrently with any period of notification required by contract or by any other statute. (c) Effect on other laws The giving of notice pursuant to this Act, if done in good faith compliance with this Act, shall not constitute a violation of the National Labor Relations Act ( 29 U.S.C. 151 et seq.) or the Railway Labor Act ( 45 U.S.C. 151 et seq.). 8. Limited regulatory authority (a) In general Except as provided in section 2(11)(B), the Secretary of Labor shall not have authority to promulgate regulations to carry out this Act. The Secretary of Labor may provide guidance that describes— (1) the methods by which employers may provide for appropriate service of notice of bargaining period under section 3(a) and notice of change in employment position or loss of employment under subsection (b) or (c) of section 3 to employees and to representatives of employees; (2) how an employer may comply with the requirement to publicly post such notice under subsections (b) and (c) of section 3; and (3) what constitutes good faith under section 6(c)(3) for employers. (b) Methods of notice to affected employees The mailing of notice to an employee's last known address or inclusion of notice in the employee's paycheck will be considered acceptable methods for fulfillment of the employer's obligation to give notice to each affected employee under subsections (b)(2)(A) and (c) of section 3. 9. Exemption of certain payments related to employment loss from gross income (a) In general Part III of subchapter B of chapter 1 of the Internal Revenue Code of 1986 is amended by inserting after section 103 the following new section: 103A. Certain payments related to employment loss (a) In general In the case of an employee who has experienced an employment loss, gross income shall not include any of the following amounts related to such employment loss: (1) Any severance pay provided pursuant to section 4(b)(1)(C) of the Workers' Right to Training Act . (2) Any amount received as a voucher for training services pursuant to section 4(b)(2)(C) of such Act. (3) Any back pay awarded by court pursuant to section 6(a)(1)(B)(i)(I) of such Act. (b) Definitions The terms employee , employer , and employment loss have the same meaning given such terms under section 2 of the Workers' Right to Training Act . . (b) Conforming amendment The table of sections for part III of subchapter B of chapter 1 of the Internal Revenue Code of 1986 is amended by inserting after the item related to section 103 the following new item: Sec. 103A. Certain payments related to employment loss. . (c) Effective date The amendments made by this section shall apply to taxable years beginning after December 31, 2019.