Wage Equity Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 2491 To amend the Fair Labor Standards Act of 1938 to enhance provisions related to wage discrimination, and for other purposes. IN THE HOUSE OF REPRESENTATIVES APRIL 13, 2021 Ms. STEFANIK (for herself, Ms. FOXX, Mrs. MILLER-MEEKS, Mr. MCKINLEY, Mr. LATTA, Mr. BUCSHON, Mr. DIAZ-BALART, Mr. BOST, Mr. BACON, Mr. THOMPSON of Pennsylvania, Mrs. WALORSKI, Mr. GARBARINO, Mr. STAUBER, Mr. ZELDIN, Mrs. RODGERS of Washington, Mr. AUSTIN SCOTT of Georgia, Mr. BURGESS, Mr. NEWHOUSE, Mr. MANN, Mr. WITTMAN, Mr. KINZINGER, Mr. OWENS, Ms. MALLIOTAKIS, Mr. COLE, Mr. GRAVES of Louisiana, Mr. WOMACK, Ms. GRANGER, Ms. HERRERA BEUTLER, Mr. GONZALEZ of Ohio, Mr. MOORE of Utah, Mr. MEUSER, Mr. JOYCE of Ohio, Mr. CAWTHORN, Mr. FORTENBERRY, Mr. GUTHRIE, Mrs. SPARTZ, Mr. ALLEN, Mr. CURTIS, Mr. RODNEY DAVIS of Illinois, and Mr. AMODEI) introduced the following bill; which was referred to the Committee on Education and Labor A BILL To amend the Fair Labor Standards Act of 1938 to enhance provisions related to wage discrimination, 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 referred to as the ‘‘Wage Equity 4 Act of 2021’’. 5 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 2491 IH SEC. 2. FINDINGS. 1 (1) In 1963, Congress passed on a bipartisan 2 basis the Equal Pay Act of 1963 to prohibit dis- 3 crimination on account of sex in the payment of 4 wages for equal work performed by employees for 5 employers engaged in commerce or in the production 6 of goods for commerce. 7 (2) Following the passage of such Act, in 1964, 8 Congress passed on a bipartisan basis the Civil 9 Rights Act of 1964. Since the passage of both the 10 Equal Pay Act of 1963 and the Civil Rights Act of 11 1964, women have made significant strides, both in 12 the workforce and in their educational pursuits. 13 (3) Prior to the COVID–19 pandemic, there 14 were over 77,000,000 women in the workforce, the 15 most in American history. Of the 2,000,000 jobs 16 created in 2019, 53 percent went to women. This 17 follows a trend that has been rising for some time. 18 Women are graduating from college at a higher rate 19 than their male counter parts, making up 61 percent 20 of all college degrees conferred in 2018. Additionally, 21 according to a recent survey of working women, 22 more than half are their family’s primary bread- 23 winner. 24 (4) The COVID–19 pandemic has had a signifi- 25 cant impact on working women, resulting in over 2 26 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 2491 IH million women leaving the workforce since February 1 2020. 2 (5) Despite these advances there is still concern 3 among the American public that gender-based wage 4 discrimination has not been eliminated. 5 SEC. 3. CLARIFYING SEX-BASED DISCRIMINATION PROHIBI- 6 TION. 7 Section 6(d)(1) of the Fair Labor Standards Act of 8 1938 (29 U.S.C. 206(d)(1)) is amended by inserting 9 ‘‘bona fide business-related’’ after ‘‘any other’’. 10 SEC. 4. JOB AND WAGE ANALYSIS. 11 Section 16 of the Fair Labor Standards Act of 1938 12 (29 U.S.C. 216) is amended by adding at the end the fol- 13 lowing: 14 ‘‘(f)(1) An employer shall not be liable in an action 15 brought against the employer for a violation of section 16 6(d) if— 17 ‘‘(A) during the period beginning on the date that 18 is 3 years before the date on which the action is brought 19 and ending on the date that is 1 day before the date on 20 which the action is brought, such employer completes a 21 job and wage analysis audit to determine whether there 22 are differentials in wage rates among such employees that 23 may violate section 6(d); 24 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 2491 IH ‘‘(B) such employer takes reasonable steps to remedy 1 any such differentials; 2 ‘‘(C) such job and wage analysis audit is conducted 3 and such reasonable steps are taken in good faith to inves- 4 tigate whether any such differentials exist; and 5 ‘‘(D) such audit is reasonable in detail and scope with 6 respect to the size of the employer. 7 ‘‘(2) A job and wage analysis audit under this section 8 and remedial action taken in response to the findings of 9 such audit— 10 ‘‘(A) may only be admissible by the employer 11 for the purposes of showing— 12 ‘‘(i) such audit was conducted; and 13 ‘‘(ii) such reasonable steps were taken; and 14 ‘‘(B) shall not be discoverable or admissible for 15 any other purpose in any claim against the em- 16 ployer. 17 ‘‘(3) An employer who has not completed a job and 18 wage analysis audit under this subsection shall not be sub- 19 ject to a negative or adverse inference as a result of not 20 having completed such audit. 21 ‘‘(4) An employer who has completed a job and wage 22 analysis audit that does not meet the requirements of sub- 23 paragraph (D) of paragraph (1) but otherwise meets the 24 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 2491 IH requirements of such paragraph shall not be liable for liq- 1 uidated damages under section 16(b). 2 ‘‘(5) In this section— 3 ‘‘(A) the term ‘job and wage analysis audit’ 4 means an audit conducted by the employer for the 5 purpose of identifying wage disparities among em- 6 ployees on the basis of sex; and 7 ‘‘(B) the term ‘reasonable steps’, with respect 8 to differentials in wages among employees that may 9 violate section 6(d), means steps that are reasonable 10 to address such differentials taking into account— 11 ‘‘(i) the amount of time that has passed 12 since the date on which the audit was initiated; 13 ‘‘(ii) the nature and degree of progress re- 14 sulting from such reasonable steps toward com- 15 pliance with section 6(d) compared to the num- 16 ber of employees with respect to whom a viola- 17 tion may exist and the amount of the wage rate 18 differentials among such employees; and 19 ‘‘(iii) the size and resources of the em- 20 ployer.’’. 21 SEC. 5. WAGE HISTORY; DISCUSSION OF WAGES. 22 (a) IN GENERAL.—The Fair Labor Standards Act of 23 1938 (29 U.S.C. 201 et seq.) is amended by inserting 24 after section 7 the following new section: 25 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 2491 IH ‘‘SEC. 8. PROVISIONS RELATING TO WAGE HISTORY AND 1 DISCUSSION OF WAGE. 2 ‘‘(a) REQUIREMENTS AND PROHIBITIONS RELATING 3 TO WAGE HISTORY.—It shall be an unlawful practice for 4 a person after the date of enactment of the Wage Equity 5 Act of 2021— 6 ‘‘(1) to rely on the wage history of a prospective 7 employee— 8 ‘‘(A) in considering the prospective em- 9 ployee for employment, including by requiring 10 that the wage history of a prospective employee 11 satisfies minimum or maximum criteria as a 12 condition of being considered for employment; 13 or 14 ‘‘(B) in determining the rate of wage for 15 such prospective employee; or 16 ‘‘(2) to seek, or to require a prospective em- 17 ployee to disclose, the wage history of such prospec- 18 tive employee. 19 ‘‘(b) VOLUNTARY DISCLOSURE EXCEPTIONS.— 20 ‘‘(1) IN GENERAL.—Subsection (a)(1) shall not 21 apply with respect to a prospective employee who 22 voluntarily discloses the wage history of such pro- 23 spective employee. 24 ‘‘(2) WAGE HISTORY VERIFICATION.—Notwith- 25 standing subsection (a)(2), a person may take ac- 26 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 2491 IH tions necessary to verify the wage history of a pro- 1 spective employee if such wage history is voluntarily 2 disclosed to the person by such prospective em- 3 ployee. 4 ‘‘(c) PRIOR INQUIRIES.—Subsection (a) shall not 5 apply with respect to the wage history of an employee ac- 6 quired by an employer before the date of enactment of 7 the Wage Equity Act of 2021, including a current employ- 8 ee’s wage history with another employer that was re- 9 quested and used to set an employee’s starting wage be- 10 fore such date and which is embedded in an employee’s 11 pay and pay increases after such date. 12 ‘‘(d) PROHIBITIONS RELATING TO DISCUSSION OF 13 WAGES.—Subject to subsection (c), it shall be an unlawful 14 practice for an employer— 15 ‘‘(1) to prohibit an employee from inquiring 16 about, discussing, or disclosing the wage of— 17 ‘‘(A) the employee; or 18 ‘‘(B) any other employee of the employer if 19 such employee has voluntarily disclosed the 20 wage of such employee; 21 ‘‘(2) to prohibit an employee from requesting 22 from the employer an explanation of differentials in 23 compensation among employees; or 24 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 2491 IH ‘‘(3) to take an adverse employment action 1 against an employee for— 2 ‘‘(A) conduct described under paragraphs 3 (1) or (2); or 4 ‘‘(B) encouraging employees to engage in 5 conduct described in such paragraphs. 6 ‘‘(e) LIMITATIONS RELATING TO DISCUSSION OF 7 WAGES.— 8 ‘‘(1) TIME AND PLACE LIMITATIONS.—An em- 9 ployer may impose reasonable time, place, and man- 10 ner limitations on conduct described under sub- 11 section (c) if such limitations are written and avail- 12 able to each employee. 13 ‘‘(2) INVOLUNTARY DISCLOSURE.—An employer 14 may prohibit an employee from discussing the wages 15 of any other employee if such other employee did not 16 voluntarily disclose such wages to the employee dis- 17 cussing such wages. 18 ‘‘(f) PAY EXPECTATION CONVERSATION.—Nothing 19 in this section shall be construed to prevent a person 20 from— 21 ‘‘(1) inquiring about the pay expectations of a 22 prospective employee; or 23 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 2491 IH ‘‘(2) providing information to such employee 1 about the compensation and benefits offered in rela- 2 tion to the position.’’. 3 (b) DEFINITIONS.—Section 2 of the Fair Labor 4 Standards Act of 1938 (29 U.S.C. 202) is amended by 5 adding at the end the following: 6 ‘‘(z) the term ‘prospective employee’ means an indi- 7 vidual who took an affirmative step to seek employment 8 with a person and who is not currently employed by such 9 person, a parent, subsidiary, predecessor, or related com- 10 pany of such person, or an employer connected by a pur- 11 chase agreement with such person; and 12 ‘‘(aa) the term ‘wage history’ means the wages paid 13 to the prospective employee by the prospective employee’s 14 current employer or any previous employer of such em- 15 ployee.’’. 16 (c) RETALIATION.—Section 15(a)(3) of the Fair 17 Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) is 18 amended— 19 (1) by inserting ‘‘or prospective employee’’ after 20 ‘‘any employee’’; and 21 (2) by inserting ‘‘or prospective employee’’ after 22 ‘‘such employee’’. 23 (d) PENALTY.— 24 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 2491 IH (1) IN GENERAL.—Section 16(b) of the Fair 1 Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 2 amended by inserting ‘‘Any person who violates the 3 provisions of section 8 with respect to an employee 4 or prospective employee shall be liable to such em- 5 ployee in an amount equal to the difference between 6 the amount that the employee or prospective em- 7 ployee would have received but for such violation 8 and the amount received by such employee or pro- 9 spective employee, and an additional equal amount 10 as liquidated damages.’’ after ‘‘tips unlawfully kept 11 by the employer, and in an additional equal amount 12 as liquidated damages.’’. 13 (2) CIVIL MONETARY PENALTY.—Section 14 16(e)(2) of the Fair Labor Standards Act of 1938 15 (29 U.S.C. 216(e)(2)) is amended by striking ‘‘6 16 and 7’’ and inserting ‘‘6, 7, and 8’’. 17 SEC. 6. NEGOTIATION SKILLS EDUCATION. 18 (a) PROGRAM AUTHORIZED.— 19 (1) IN GENERAL.—The Secretary of Labor, 20 after consultation with the Secretary of Education, 21 is authorized to establish and carry out a grant pro- 22 gram. 23 (2) GRANTS.—In carrying out the program 24 under paragraph (1), the Secretary of Labor may 25 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 2491 IH make grants on a competitive basis to eligible enti- 1 ties to carry out negotiation skills education pro- 2 grams for the purposes of addressing wage dispari- 3 ties, including through outreach to women and girls. 4 (3) ELIGIBLE ENTITIES.—To be eligible to re- 5 ceive a grant under this subsection, an entity shall 6 be a public agency, such as a State, a local govern- 7 ment in a metropolitan statistical area (as defined 8 by the Office of Management and Budget), a State 9 educational agency, or a local educational agency, a 10 private nonprofit organization, or a community- 11 based organization. 12 (4) APPLICATION.—To be eligible to receive a 13 grant under this subsection, an entity shall submit 14 an application to the Secretary of Labor at such 15 time, in such manner, and containing such informa- 16 tion as the Secretary of Labor may require. 17 (5) USE OF FUNDS.—An entity that receives a 18 grant under this subsection shall use the funds made 19 available through the grant to carry out an effective 20 negotiation skills education program for the pur- 21 poses described in paragraph (2). 22 (b) INCORPORATING EDUCATION INTO EXISTING 23 PROGRAMS.—The Secretary of Labor and the Secretary 24 of Education shall issue regulations or policy guidance 25 VerDate Sep 11 2014 22:47 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2491.IH H2491 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 2491 IH that provides for integrating the negotiation skills edu- 1 cation, to the extent practicable, into programs authorized 2 under— 3 (1) in the case of the Secretary of Education, 4 the Elementary and Secondary Education Act of 5 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 6 Career and Technical Education Act of 2006 (20 7 U.S.C. 2301 et seq.), the Higher [Text truncated for display. Full text available on Congress.gov.]