Paycheck Fairness Act

II 116TH CONGRESS 1ST SESSION S. 270 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 JANUARY 30, 2019 Mrs. MURRAY (for herself, Ms. BALDWIN, Mr. BENNET, Mr. BLUMENTHAL, Mr. BOOKER, Mr. BROWN, Ms. CANTWELL, Mr. CARDIN, Mr. CARPER, Mr. CASEY, Mr. COONS, Ms. CORTEZ MASTO, Ms. DUCKWORTH, Mr. DURBIN, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Ms. HARRIS, Ms. HASSAN, Mr. HEINRICH, Ms. HIRONO, Mr. JONES, Mr. KAINE, Ms. KLOBUCHAR, Mr. LEAHY, Mr. MANCHIN, Mr. MARKEY, Mr. MENENDEZ, Mr. MERKLEY, Mr. MURPHY, Mr. PETERS, Mr. REED, Ms. ROSEN, Mr. SANDERS, Mr. SCHATZ, Mr. SCHUMER, Mrs. SHAHEEN, Ms. SINEMA, Ms. SMITH, Ms. STABENOW, Mr. TESTER, Mr. UDALL, Mr. VAN HOLLEN, Mr. WARNER, Ms. WARREN, Mr. WHITEHOUSE, and Mr. WYDEN) intro- duced the following bill; which was read twice and referred to the Com- mittee 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 270 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Paycheck Fairness 2 Act’’. 3 SEC. 2. FINDINGS. 4 Congress finds the following: 5 (1) Women have entered the workforce in 6 record numbers over the past 50 years. 7 (2) Despite the enactment of the Equal Pay Act 8 of 1963, many women continue to earn significantly 9 lower pay than men for equal work. These pay dis- 10 parities exist in both the private and governmental 11 sectors. In many instances, the pay disparities can 12 only be due to continued intentional discrimination 13 or the lingering effects of past discrimination. 14 (3) The existence of such pay disparities— 15 (A) depresses the wages of working fami- 16 lies who rely on the wages of all members of the 17 family to make ends meet; 18 (B) undermines women’s retirement secu- 19 rity, which is often based on earnings while in 20 the workforce; 21 (C) prevents the optimum utilization of 22 available labor resources; 23 (D) has been spread and perpetuated, 24 through commerce and the channels and instru- 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 270 IS mentalities of commerce, among the workers of 1 the several States; 2 (E) burdens commerce and the free flow of 3 goods in commerce; 4 (F) constitutes an unfair method of com- 5 petition in commerce; 6 (G) leads to labor disputes burdening and 7 obstructing commerce and the free flow of 8 goods in commerce; 9 (H) interferes with the orderly and fair 10 marketing of goods in commerce; and 11 (I) in many instances, may deprive workers 12 of equal protection on the basis of sex in viola- 13 tion of the 5th and 14th Amendments. 14 (4)(A) Artificial barriers to the elimination of 15 discrimination in the payment of wages on the basis 16 of sex continue to exist decades after the enactment 17 of the Fair Labor Standards Act of 1938 (29 U.S.C. 18 201 et seq.) and the Civil Rights Act of 1964 (42 19 U.S.C. 2000a et seq.). 20 (B) These barriers have resulted, in significant 21 part, because the Equal Pay Act of 1963 has not 22 worked as Congress originally intended. Improve- 23 ments and modifications to the law are necessary to 24 ensure that the Act provides effective protection to 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 270 IS those subject to pay discrimination on the basis of 1 their sex. 2 (C) Elimination of such barriers would have 3 positive effects, including— 4 (i) providing a solution to problems in the 5 economy created by unfair pay disparities; 6 (ii) substantially reducing the number of 7 working women earning unfairly low wages, 8 thereby reducing the dependence on public as- 9 sistance; 10 (iii) promoting stable families by enabling 11 all family members to earn a fair rate of pay; 12 (iv) remedying the effects of past discrimi- 13 nation on the basis of sex and ensuring that in 14 the future workers are afforded equal protection 15 on the basis of sex; and 16 (v) ensuring equal protection pursuant to 17 Congress’ power to enforce the 5th and 14th 18 Amendments. 19 (5) The Department of Labor and the Equal 20 Employment Opportunity Commission have impor- 21 tant and unique responsibilities to help ensure that 22 women receive equal pay for equal work. 23 (6) The Department of Labor is responsible 24 for— 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 270 IS (A) collecting and making publicly avail- 1 able information about women’s pay; 2 (B) ensuring that companies receiving 3 Federal contracts comply with anti-discrimina- 4 tion affirmative action requirements of Execu- 5 tive Order 11246 (relating to equal employment 6 opportunity); 7 (C) disseminating information about wom- 8 en’s rights in the workplace; 9 (D) helping women who have been victims 10 of pay discrimination obtain a remedy; and 11 (E) being proactive in investigating and 12 prosecuting equal pay violations, especially sys- 13 temic violations, and in enforcing all of its man- 14 dates. 15 (7) The Equal Employment Opportunity Com- 16 mission is the primary enforcement agency for 17 claims made under the Equal Pay Act of 1963, and 18 issues regulations and guidance on appropriate in- 19 terpretations of the law. 20 (8) With a stronger commitment by the Depart- 21 ment of Labor and the Equal Employment Oppor- 22 tunity Commission to their responsibilities, increased 23 information as a result of the amendments made by 24 this Act to the Equal Pay Act of 1963, wage data, 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 270 IS and more effective remedies, women will be better 1 able to recognize and enforce their rights. 2 (9) Certain employers have already made great 3 strides in eradicating unfair pay disparities in the 4 workplace and their achievements should be recog- 5 nized. 6 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE- 7 QUIREMENTS. 8 (a) BONA FIDE FACTOR DEFENSE AND MODIFICA- 9 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 10 6(d)(1) of the Fair Labor Standards Act of 1938 (29 11 U.S.C. 206(d)(1)) is amended— 12 (1) by striking ‘‘No employer having’’ and in- 13 serting ‘‘(A) No employer having’’; 14 (2) by striking ‘‘any other factor other than 15 sex’’ and inserting ‘‘a bona fide factor other than 16 sex, such as education, training, or experience’’; and 17 (3) by inserting at the end the following: 18 ‘‘(B) The bona fide factor defense described in sub- 19 paragraph (A)(iv) shall apply only if the employer dem- 20 onstrates that such factor (i) is not based upon or derived 21 from a sex-based differential in compensation; (ii) is job- 22 related with respect to the position in question; (iii) is con- 23 sistent with business necessity; and (iv) accounts for the 24 entire differential in compensation at issue. Such defense 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 270 IS shall not apply where the employee demonstrates that an 1 alternative employment practice exists that would serve 2 the same business purpose without producing such dif- 3 ferential and that the employer has refused to adopt such 4 alternative 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 lo- 8 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 ‘establish- 11 ment’ consistent with rules prescribed or guidance issued 12 by the Equal Employment Opportunity Commission.’’. 13 (b) NONRETALIATION PROVISION.—Section 15 of the 14 Fair Labor Standards Act of 1938 (29 U.S.C. 215) is 15 amended— 16 (1) in subsection (a)— 17 (A) in paragraph (3), by striking ‘‘em- 18 ployee has filed’’ and all that follows and insert- 19 ing ‘‘employee— 20 ‘‘(A) has made a charge or filed any com- 21 plaint or instituted or caused to be instituted 22 any investigation, proceeding, hearing, or action 23 under or related to this Act, including an inves- 24 tigation conducted by the employer, or has tes- 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 270 IS tified or is planning to testify or has assisted or 1 participated in any manner in any such inves- 2 tigation, proceeding, hearing or action, or has 3 served or is planning to serve on an industry 4 committee; or 5 ‘‘(B) has inquired about, discussed, or dis- 6 closed the wages of the employee or another 7 employee;’’; 8 (B) in paragraph (5), by striking the pe- 9 riod at the end and inserting ‘‘; or’’; and 10 (C) by adding at the end the following: 11 ‘‘(6) to require an employee to sign a contract 12 or waiver that would prohibit the employee from dis- 13 closing information about the employee’s wages.’’; 14 and 15 (2) by adding at the end the following: 16 ‘‘(c) Subsection (a)(3)(B) shall not apply to instances 17 in which an employee who has access to the wage informa- 18 tion of other employees as a part of such employee’s essen- 19 tial job functions discloses the wages of such other employ- 20 ees to individuals who do not otherwise have access to such 21 information, unless such disclosure is in response to a 22 complaint or charge or in furtherance of an investigation, 23 proceeding, hearing, or action under section 6(d), includ- 24 ing an investigation conducted by the employer. Nothing 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 270 IS in this subsection shall be construed to limit the rights 1 of an employee provided under any other provision of 2 law.’’. 3 (c) ENHANCED PENALTIES.—Section 16(b) of the 4 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 5 amended— 6 (1) by inserting after the first sentence the fol- 7 lowing: ‘‘Any employer who violates section 6(d) 8 shall additionally be liable for such compensatory 9 damages, or, where the employee demonstrates that 10 the employer acted with malice or reckless indiffer- 11 ence, punitive damages as may be appropriate, ex- 12 cept that the United States shall not be liable for 13 punitive damages.’’; 14 (2) in the sentence beginning ‘‘An action to’’, 15 by striking ‘‘either of the preceding sentences’’ and 16 inserting ‘‘any of the preceding sentences of this 17 subsection’’; 18 (3) in the sentence beginning ‘‘No employees 19 shall’’, by striking ‘‘No employees’’ and inserting 20 ‘‘Except with respect to class actions brought to en- 21 force section 6(d), no employee’’; 22 (4) by inserting after the sentence referred to 23 in paragraph (3), the following: ‘‘Notwithstanding 24 any other provision of Federal law, any action 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 270 IS brought to enforce section 6(d) may be maintained 1 as a class action as provided by the Federal Rules 2 of Civil Procedure.’’; and 3 (5) in the sentence beginning ‘‘The court in’’— 4 (A) by striking ‘‘in such action’’ and in- 5 serting ‘‘in any action brought to recover the li- 6 ability prescribed in any of the preceding sen- 7 tences of this subsection’’; and 8 (B) by inserting before the period the fol- 9 lowing: ‘‘, including expert fees’’. 10 (d) ACTION BY SECRETARY.—Section 16(c) of the 11 Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 12 amended— 13 (1) in the first sentence— 14 (A) by inserting ‘‘or, in the case of a viola- 15 tion of section 6(d), additional compensatory or 16 punitive damages, as described in subsection 17 (b),’’ before ‘‘and the agreement’’; and 18 (B) by inserting before the period the fol- 19 lowing: ‘‘, or such compensatory or punitive 20 damages, as appropriate’’; 21 (2) in the second sentence, by inserting before 22 the period the following: ‘‘and, in the case of a viola- 23 tion of section 6(d), additional compensatory or pu- 24 nitive damages, as described in subsection (b)’’; 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 270 IS (3) in the third sentence, by striking ‘‘the first 1 sentence’’ and inserting ‘‘the first or second sen- 2 tence’’; and 3 (4) in the sixth sentence— 4 (A) by striking ‘‘commenced in the case’’ 5 and inserting ‘‘commenced— 6 ‘‘(1) in the case’’; 7 (B) by striking the period and inserting ‘‘; 8 or’’; and 9 (C) by adding at the end the following: 10 ‘‘(2) in the case of a class action brought to en- 11 force section 6(d), on the date on which the indi- 12 vidual becomes a party plaintiff to the class action.’’. 13 SEC. 4. TRAINING. 14 The Equal Employment Opportunity Commission 15 and the Office of Federal Contract Compliance Programs, 16 subject to the availability of funds appropriated under sec- 17 tion 11, shall provide training to Commission employees 18 and affected individuals and entities on matters involving 19 discrimination in the payment of wages. 20 SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND 21 WOMEN. 22 (a) PROGRAM AUTHORIZED.— 23 (1) IN GENERAL.—The Secretary of Labor, 24 after consultation with the Secretary of Education, 25 VerDate Sep 11 2014 00:00 Feb 06, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S270.IS S270 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 270 IS is authorized to establish and carry out a grant pro- 1 gram. 2 (2) GRANTS.—In carrying out the program, the 3 Secretary of Labor may make grants on a competi- 4 tive basis to eligible entities, to carry out negotiation 5 skills training programs for girls and women. 6 (3) ELIGIBLE ENTITIES.—To be eligible to re- 7 ceive a grant under this subsection, an entity shall 8 be a [Text truncated for display. Full text available on Congress.gov.]