Federal

Paycheck Fairness Act

Source: Congress.gov · 6,555 words in original text

What This Bill Does

This bill changes federal laws about equal pay for work. It makes it easier for workers to challenge pay differences based on sex and adds stronger penalties for employers who violate equal pay rules. The bill also requires employers to share wage information and prohibits them from asking job applicants about their past salaries. ##

Who It Affects

- Workers who believe they face wage discrimination based on sex, including discrimination based on pregnancy, sexual orientation, gender identity, or sex characteristics - Employers of any size (though small businesses get some exemptions) - The Equal Employment Opportunity Commission (the federal agency that investigates discrimination claims) - The Department of Labor and its Office of Federal Contract Compliance Programs - Federal contractors and subcontractors - Job applicants and current employees ##

Key Provisions

- Employers cannot rely on a job applicant's past salary when deciding what to pay them, with limited exceptions (Sec. 9) - Employers must allow workers to discuss and share their wages without fear of retaliation (Sec. 2(c)) - Employers can only defend unequal pay if the difference is based on job-related factors like education or experience that are truly necessary for business, and no better alternative exists (Sec. 2(b)) - Workers in the same county who work for the same employer are considered to work in the same location for pay comparison purposes (Sec. 2(b)) - Employers with 100 or more employees must provide the federal government detailed wage data broken down by sex, race, and national origin (Sec. 7) - Violating the wage history rules can result in civil penalties up to $10,000 per person plus attorney fees (Sec. 9) - Workers can now file class action lawsuits (group lawsuits) for equal pay violations (Sec. 2(d)) ##

What Changes

If passed, employers would face new legal requirements: they cannot ask about or use past salaries in hiring decisions; they must provide detailed wage reports to the government; workers gain stronger legal protections against retaliation for discussing pay; penalties for wage discrimination increase; and workers get access to more ways to challenge unequal pay through the courts. ##

Important Definitions

The bill defines "sex" to explicitly include pregnancy, childbirth, related medical conditions, sexual orientation, gender identity, and sex characteristics including intersex traits (Sec. 2(a)). "Sexual orientation" means homosexuality, heterosexuality, and bisexuality (Sec. 2(a)). "Gender identity" means a person's gender-related identity, appearance, or mannerisms regardless of what sex was listed at birth (Sec. 2(a)). "Wage history" means wages paid to someone by their current or previous employer (Sec. 9). ##

Effective Date

Six months after the bill becomes law (Sec. 12(a)).

I 118TH CONGRESS 1ST SESSION H. R. 17 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 HOUSE OF REPRESENTATIVES MARCH 10, 2023 Ms. DELAURO (for herself, Mr. JEFFRIES, Mr. AGUILAR, Ms. CLARK of Mas- sachusetts, Ms. PELOSI, Mr. HOYER, Mr. CLYBURN, Mr. SCOTT of Vir- ginia, Ms. SPANBERGER, Ms. ADAMS, Ms. SALINAS, Ms. CRAIG, Ms. KUSTER, Ms. ESHOO, Ms. PRESSLEY, Ms. LEE of California, Ms. BALINT, Ms. MCCOLLUM, Mrs. WATSON COLEMAN, Ms. PETTERSEN, Ms. PINGREE, Ms. HOULAHAN, Ms. BUSH, Mrs. DINGELL, Ms. WASSERMAN SCHULTZ, Ms. ROSS, Ms. DEGETTE, Ms. TITUS, Ms. MATSUI, Ms. NOR- TON, Ms. SLOTKIN, Ms. WILSON of Florida, Ms. MENG, Mrs. NAPOLI- TANO, Ms. MOORE of Wisconsin, Ms. STEVENS, Ms. SCHOLTEN, Ms. OMAR, Mrs. HAYES, Ms. SCHAKOWSKY, Ms. CROCKETT, Ms. WEXTON, Ms. TOKUDA, Mrs. BEATTY, Ms. CHU, Ms. BROWNLEY, Ms. CASTOR of Florida, Ms. MANNING, Ms. PORTER, Ms. SCHRIER, Ms. UNDERWOOD, Ms. SA´NCHEZ, Ms. BLUNT ROCHESTER, Mrs. FLETCHER, Ms. LOIS FRANKEL of Florida, Mrs. TRAHAN, Mrs. MCBATH, Ms. DEAN of Penn- sylvania, Ms. KAPTUR, Ms. PEREZ, Ms. STRICKLAND, Ms. SCANLON, Ms. WATERS, Ms. STANSBURY, Ms. SHERRILL, Ms. BARRAGA´N, Ms. WIL- LIAMS of Georgia, Ms. BUDZINSKI, Mrs. TORRES of California, Ms. VELA´ZQUEZ, Ms. JAYAPAL, Ms. TLAIB, Ms. KELLY of Illinois, Ms. JA- COBS, Ms. DAVIDS of Kansas, Mrs. CHERFILUS-MCCORMICK, Ms. JACK- SON LEE, Ms. BROWN, Ms. PLASKETT, Ms. LEE of Pennsylvania, Ms. WILD, Mrs. LEE of Nevada, Ms. DELBENE, Ms. BONAMICI, Ms. KAMLAGER-DOVE, Ms. GARCIA of Texas, Ms. LEGER FERNANDEZ, Ms. SEWELL, Ms. HOYLE of Oregon, Mrs. FOUSHEE, Ms. ESCOBAR, Ms. CARAVEO, Ms. CLARKE of New York, Ms. LOFGREN, Mr. SCHIFF, Mr. SMITH of Washington, Mr. ESPAILLAT, Mr. GREEN of Texas, Mr. BERA, Mr. CARSON, Mr. KIM of New Jersey, Mr. THOMPSON of Mississippi, Mr. FOSTER, Mr. PASCRELL, Mr. SCHNEIDER, Mr. SHERMAN, Mr. BOYLE of Pennsylvania, Mr. HIGGINS of New York, Mr. RUPPERSBERGER, Mr. DELUZIO, Mr. ALLRED, Mr. KILDEE, Mr. DAVIS of Illinois, Mr. SOTO, Mr. CICILLINE, Mr. DAVID SCOTT of Georgia, Mr. TRONE, Mr. PHIL- LIPS, Mr. KILMER, Mr. DAVIS of North Carolina, Mr. PAYNE, Mr. NOR- CROSS, Mr. BEYER, Mr. EVANS, Mr. BLUMENAUER, Mr. CLEAVER, Mr. VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 17 IH SORENSEN, Mr. SWALWELL, Mr. MRVAN, Mr. PALLONE, Mr. CONNOLLY, Mr. IVEY, Mr. CASAR, Mr. STANTON, Mr. SABLAN, Mr. MEEKS, Mr. JOHNSON of Georgia, Mr. CUELLAR, Mr. AUCHINCLOSS, Mr. BOWMAN, Mr. MCGOVERN, Mr. RASKIN, Mr. GOLDEN of Maine, Mr. HUFFMAN, Mr. MOSKOWITZ, Mr. CROW, Mr. NADLER, Mr. GARCI´A of Illinois, Mr. COSTA, Mr. HIMES, Mr. GOMEZ, Mr. PANETTA, Mr. CASTRO of Texas, Mr. COURTNEY, Mr. NEGUSE, Mr. LARSON of Connecticut, Mr. GARAMENDI, Mr. SARBANES, Mr. JACKSON of Illinois, Mr. MORELLE, Mr. GOTTHEIMER, Mr. HARDER of California, Mr. VARGAS, Mrs. SYKES, Mr. MULLIN, Mr. MFUME, Mr. DOGGETT, Mr. VEASEY, Mr. DESAULNIER, Mr. POCAN, Mr. TAKANO, Mr. CARTWRIGHT, Mr. FROST, Mr. LEVIN, Mr. QUIGLEY, Mr. THOMPSON of California, Mr. MCGARVEY, Mr. RYAN, Mr. TONKO, Mr. KRISHNAMOORTHI, Mr. GRIJALVA, Mr. RUIZ, Mr. NEAL, Mr. LARSEN of Washington, Mr. TORRES of New York, Mr. KHANNA, Mr. MENENDEZ, Mr. ROBERT GARCIA of California, Mr. GALLEGO, Mr. CARBAJAL, Mr. BISHOP of Georgia, Mr. PETERS, Mr. CASTEN, Mr. MOULTON, Mr. LYNCH, Mr. COHEN, Mr. HORSFORD, Mr. LIEU, Mr. CA´RDENAS, Mr. CARTER of Louisiana, Mr. VICENTE GON- ZALEZ of Texas, Mr. NICKEL, Mr. KEATING, Mr. THANEDAR, Mr. FITZPATRICK, Mrs. MCCLELLAN, and Mr. CORREA) introduced the fol- lowing bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committee on Oversight and Account- ability, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdic- tion of the committee concerned 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Paycheck Fairness 4 Act’’. 5 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 17 IH SEC. 2. ENHANCED ENFORCEMENT OF EQUAL PAY RE- 1 QUIREMENTS. 2 (a) DEFINITIONS.—Section 3 of the Fair Labor 3 Standards Act of 1938 (29 U.S.C. 203) is amended by 4 adding at the end the following: 5 ‘‘(z) ‘Sex’ includes— 6 ‘‘(1) pregnancy, childbirth, or a related medical 7 condition; 8 ‘‘(2) sexual orientation or gender identity; and 9 ‘‘(3) sex characteristics, including intersex 10 traits. 11 ‘‘(aa) ‘Sexual orientation’ includes homosexuality, 12 heterosexuality, and bisexuality. 13 ‘‘(bb) ‘Gender identity’ means the gender-related 14 identity, appearance, mannerisms, or other gender-related 15 characteristics of an individual, regardless of the individ- 16 ual’s designated sex at birth.’’. 17 (b) BONA FIDE FACTOR DEFENSE AND MODIFICA- 18 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 19 6(d)(1) of the Fair Labor Standards Act of 1938 (29 20 U.S.C. 206(d)(1)) is amended— 21 (1) by striking ‘‘No employer having’’ and in- 22 serting ‘‘(A) No employer having’’; 23 (2) by striking ‘‘the opposite’’ and inserting 24 ‘‘another’’; 25 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 17 IH (3) by striking ‘‘any other factor other than 1 sex’’ and inserting ‘‘a bona fide factor other than 2 sex, such as education, training, or experience’’; and 3 (4) by inserting at the end the following: 4 ‘‘(B) The bona fide factor defense described in sub- 5 paragraph (A)(iv) shall apply only if the employer dem- 6 onstrates that such factor (i) is not based upon or derived 7 from a sex-based differential in compensation; (ii) is job- 8 related with respect to the position in question; (iii) is con- 9 sistent with business necessity; and (iv) accounts for the 10 entire differential in compensation at issue. Such defense 11 shall not apply where the employee demonstrates that an 12 alternative employment practice exists that would serve 13 the same business purpose without producing such dif- 14 ferential and that the employer has refused to adopt such 15 alternative practice. 16 ‘‘(C) For purposes of subparagraph (A), employees 17 shall be deemed to work in the same establishment if the 18 employees work for the same employer at workplaces lo- 19 cated in the same county or similar political subdivision 20 of a State. The preceding sentence shall not be construed 21 as limiting broader applications of the term ‘establish- 22 ment’ consistent with rules prescribed or guidance issued 23 by the Equal Employment Opportunity Commission.’’. 24 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 17 IH (c) NONRETALIATION PROVISION.—Section 15 of the 1 Fair Labor Standards Act of 1938 (29 U.S.C. 215) is 2 amended— 3 (1) in subsection (a)— 4 (A) in paragraph (3), by striking ‘‘em- 5 ployee has filed’’ and all that follows and insert- 6 ing ‘‘employee— 7 ‘‘(A) has made a charge or filed any com- 8 plaint or instituted or caused to be instituted 9 any investigation, proceeding, hearing, or action 10 under or related to this Act, including an inves- 11 tigation conducted by the employer, or has tes- 12 tified or is planning to testify or has assisted or 13 participated in any manner in any such inves- 14 tigation, proceeding, hearing or action, or has 15 served or is planning to serve on an industry 16 committee; 17 ‘‘(B) has opposed any practice made un- 18 lawful by this Act; or 19 ‘‘(C) has inquired about, discussed, or dis- 20 closed the wages of the employee or another 21 employee (such as by inquiring or discussing 22 with the employer why the wages of the em- 23 ployee are set at a certain rate or salary);’’; 24 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 17 IH (B) in paragraph (5), by striking ‘‘and’’ at 1 the end; 2 (C) in paragraph (6), by striking the pe- 3 riod at the end and inserting ‘‘; or’’; and 4 (D) by adding at the end the following: 5 ‘‘(7) to require an employee to sign a contract 6 or waiver that would prohibit the employee from dis- 7 closing information about the employee’s wages.’’; 8 and 9 (2) by adding at the end the following: 10 ‘‘(c) Subsection (a)(3)(C) shall not apply to instances 11 in which an employee who has access to the wage informa- 12 tion of other employees as a part of such employee’s essen- 13 tial job functions discloses the wages of such other employ- 14 ees to individuals who do not otherwise have access to such 15 information, unless such disclosure is in response to a 16 complaint or charge or in furtherance of an investigation, 17 proceeding, hearing, or action under section 6(d), includ- 18 ing an investigation conducted by the employer. Nothing 19 in this subsection shall be construed to limit the rights 20 of an employee provided under any other provision of 21 law.’’. 22 (d) ENHANCED PENALTIES.—Section 16(b) of the 23 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 24 amended— 25 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 17 IH (1) by inserting after the first sentence the fol- 1 lowing: ‘‘Any employer who violates section 6(d), or 2 who violates the provisions of section 15(a)(3) in re- 3 lation to section 6(d), shall additionally be liable for 4 such compensatory damages, or, where the employee 5 demonstrates that the employer acted with malice or 6 reckless indifference, punitive damages as may be 7 appropriate, except that the United States shall not 8 be liable for punitive damages.’’; 9 (2) in the sentence beginning ‘‘An action to’’, 10 by striking ‘‘the preceding sentences’’ and inserting 11 ‘‘any of the preceding sentences of this subsection’’; 12 (3) in the sentence beginning ‘‘No employees 13 shall’’, by striking ‘‘No employees’’ and inserting 14 ‘‘Except with respect to class actions brought to en- 15 force section 6(d), no employee’’; 16 (4) by inserting after the sentence referred to 17 in paragraph (3), the following: ‘‘Notwithstanding 18 any other provision of Federal law, any action 19 brought to enforce section 6(d) may be maintained 20 as a class action as provided by the Federal Rules 21 of Civil Procedure.’’; and 22 (5) in the sentence beginning ‘‘The court in’’— 23 (A) by striking ‘‘in such action’’ and in- 24 serting ‘‘in any action brought to recover the li- 25 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 17 IH ability prescribed in any of the preceding sen- 1 tences of this subsection’’; and 2 (B) by inserting before the period the fol- 3 lowing: ‘‘, including expert fees’’. 4 (e) ACTION BY THE SECRETARY.—Section 16(c) of 5 the Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) 6 is amended— 7 (1) in the first sentence— 8 (A) by inserting ‘‘or, in the case of a viola- 9 tion of section 6(d), additional compensatory or 10 punitive damages, as described in subsection 11 (b),’’ before ‘‘and the agreement’’; and 12 (B) by inserting before the period the fol- 13 lowing: ‘‘, or such compensatory or punitive 14 damages, as appropriate’’; 15 (2) in the second sentence, by inserting before 16 the period the following: ‘‘and, in the case of a viola- 17 tion of section 6(d), additional compensatory or pu- 18 nitive damages, as described in subsection (b)’’; and 19 (3) in the third sentence, by striking ‘‘the first 20 sentence’’ and inserting ‘‘the first or second sen- 21 tence’’. 22 (f) ENFORCEMENT AUTHORITY.— 23 (1) IN GENERAL.—The Equal Opportunity Em- 24 ployment Commission shall carry out the functions 25 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 17 IH and authorities described in section 1 of Reorganiza- 1 tion Plan No. 1 of 1978 (92 Stat. 3781; 5 U.S.C. 2 App.) to enforce and administer the provisions of 3 section 6(d) of the Fair Labor Standards Act of 4 1938 (29 U.S.C. 206(d)), except that the Secretary 5 of Labor, through the Office of Federal Contract 6 Compliance Programs, may also enforce this provi- 7 sion with respect to Federal contractors, Federal 8 subcontractors, and federally assisted construction 9 contractors, within the jurisdiction of the Office of 10 Federal Contract Compliance Programs under Exec- 11 utive Order No. 11246 (42 U.S.C. 2000e note; relat- 12 ing to equal employment opportunity) or a successor 13 Executive order. 14 (2) COORDINATION.—The Equal Opportunity 15 Employment Commission shall issue such regula- 16 tions as may be necessary to explain and implement 17 the standards of such section 6(d). The Secretary of 18 Labor may issue regulations to govern procedures 19 for enforcement of section 6(d) by the Office of Fed- 20 eral Contract Compliance Programs. The Secretary 21 of Labor and the Equal Employment Opportunity 22 Commission shall establish other coordinating mech- 23 anisms as may be necessary. 24 VerDate Sep 11 2014 00:16 Mar 11, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H17.IH H17 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 17 IH SEC. 3. TRAINING. 1 The Equal Employment Opportunity Commission 2 and the Secretary of Labor, acting through the Office of 3 Federal Contract Compliance Programs, subject to the 4 availability of funds appropriated under section 11, shall 5 provide training to employees of the Commission and the 6 Office of Federal Contract Compliance Programs and to 7 affected individuals and entities on matters involving dis- 8 crimination in the payment of wages. 9 SEC. 4. NEGOTIATION SKILLS TRAINING. 10 (a) NEGOTIATION BIAS TRAINING.— 11 (1) IN GENERAL.—The Secretary of Labor shall 12 establish a program to award contracts and grants 13 for the purpose of training employers about the role 14 that salary negotiation and other inconsistent wage 15 setting practices can have on allowing bias to enter 16 compensation. 17 (2) TRAINING TOPICS.—Each training program 18 established using funds under section [Text truncated for display. Full text available on Congress.gov.]

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