Wage Equity Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 1935 To amend the Fair Labor Standards Act of 1938 to enhance provisions related to pay discrimination, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 27, 2019 Ms. STEFANIK (for herself, Mr. HURD of Texas, Mr. CONAWAY, Mr. STIVERS, Ms. GRANGER, Mr. UPTON, Mrs. BROOKS of Indiana, Mr. MARSHALL, Mr. DIAZ-BALART, Mr. GIANFORTE, Mr. HUIZENGA, Mr. KATKO, Mr. COLE, Mrs. RODGERS of Washington, Mr. TURNER, Mr. BUCSHON, Mr. MCHENRY, Mrs. WALORSKI, Mr. HAGEDORN, Mr. WALDEN, Mr. SMUCKER, Mr. THOMPSON of Pennsylvania, Mr. STEIL, Mr. FLORES, Mr. FORTENBERRY, Mr. REED, Mr. WRIGHT, Mr. COOK, Mr. HUDSON, Mr. GONZALEZ of Ohio, Mrs. WAGNER, Mr. BURGESS, Mr. KING of New York, Mr. COLLINS of New York, Mr. STAUBER, Ms. HERRERA BEUTLER, Mr. BALDERSON, Mr. MCKINLEY, Mr. ZELDIN, Mr. BOST, Mr. FERGUSON, Mr. JOYCE of Ohio, Mr. TIMMONS, Mr. DAVID P. ROE of Tennessee, Mr. CHABOT, Mr. LATTA, Mr. BYRNE, Mr. KINZINGER, and Mr. LAHOOD) 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 pay 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 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 2 •HR 1935 IH SECTION 1. SHORT TITLE. 1 This Act may be referred to as the ‘‘Wage Equity 2 Act of 2019’’. 3 SEC. 2. FINDINGS. 4 (1) In 1963, Congress passed on a bipartisan 5 basis the Equal Pay Act of 1963 to prohibit dis- 6 crimination on account of sex in the payment of 7 wages for equal work performed by employees for 8 employers engaged in commerce or in the production 9 of goods for commerce. 10 (2) Following the passage of such Act, in 1964, 11 Congress passed on a bipartisan basis the Civil 12 Rights Act of 1964. Since the passage of both the 13 Equal Pay Act of 1963 and the Civil Rights Act of 14 1964, women have made significant strides, both in 15 the workforce and in their educational pursuits. 16 (3) Currently, there are nearly 75,000,000 17 women in the workforce, the most in American his- 18 tory. Of the 2,800,000 jobs created in 2018, 58 per- 19 cent went to women. This follows a trend that has 20 been rising for some time. Women are graduating 21 from college at a higher rate than their male counter 22 parts, making up over 58 percent of all college de- 23 grees conferred in 2017. Additionally, according to a 24 recent survey of working women, 49 percent of em- 25 ployed women are their family’s primary bread- 26 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 3 •HR 1935 IH winner. Women hold the majority of positions in the 1 five fastest growing fields. 2 (4) Despite these advances there is still concern 3 among the American public that gender-based pay 4 discrimination has not been eliminated. 5 SEC. 3. FLEXIBLE WORK ARRANGEMENT PLAN. 6 Section 6(d) of the Fair Labor Standards Act of 7 1938 (29 U.S.C. 206(d)) is amended— 8 (1) in paragraph (1)— 9 (A) by striking ‘‘or’’ after ‘‘a system which 10 measures earnings by quantity or quality or 11 production’’; 12 (B) inserting ‘‘; or (v) a flexible work ar- 13 rangement plan’’ after ‘‘any other factor other 14 than sex’’; and 15 (C) by inserting ‘‘job-related’’ before ‘‘fac- 16 tor other than sex’’; and 17 (2) by adding at the end the following: 18 ‘‘(5) In this subsection, the term ‘flexible work 19 arrangement plan’ means a plan offered by an em- 20 ployer that an employee may opt into in which the 21 employee agrees to certain scheduling benefits, in- 22 cluding— 23 ‘‘(A) flexible scheduling. 24 ‘‘(B) a telework program; or 25 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 4 •HR 1935 IH ‘‘(C) a compressed work schedule program 1 that allows the employee to work the equivalent 2 of full-time employment over a fewer number of 3 days by increasing the number of daily hours 4 worked.’’. 5 SEC. 4. PAY ANALYSIS. 6 Section 16 of the Fair Labor Standards Act of 1938 7 (29 U.S.C. 216) is amended by adding at the end the fol- 8 lowing: 9 ‘‘(f)(1) If an employer conducts a pay analysis audit 10 and such audit reveals unlawful differentials in pay be- 11 tween equal jobs and such employer takes reasonable steps 12 to address such differentials consistent with federal laws 13 prohibiting pay discrimination, such employer shall not be 14 liable for liquidated damages in an action brought against 15 the employer for a violation of section 6(d) if such audit 16 is conducted— 17 ‘‘(A) in good faith to investigate such dif- 18 ferentials; and 19 ‘‘(B) not earlier than the date that is 3 20 years before the date on which the action is 21 brought and not later than the date that is 1 22 day before the action is brought. 23 ‘‘(2) An audit under this section and remedial 24 action taken in response to the findings of such 25 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 5 •HR 1935 IH audit may not be discoverable or admissible for any 1 purpose in any claim against the employer. 2 ‘‘(3) An employer who has not completed an 3 audit under this subsection shall not be subject to a 4 negative or adverse inference as a result of not hav- 5 ing completed such audit.’’. 6 SEC. 5. WAGE, SALARY, AND BENEFIT HISTORY; DISCUS- 7 SION OF WAGES. 8 (a) IN GENERAL.—The Fair Labor Standards Act of 9 1938 (29 U.S.C. 201 et seq.) is amended by inserting 10 after section 7 the following new section: 11 ‘‘SEC. 8. PROVISIONS RELATING TO WAGE, SALARY, AND 12 BENEFIT HISTORY AND DISCUSSION OF 13 WAGES. 14 ‘‘(a) REQUIREMENTS AND PROHIBITIONS RELATING 15 TO WAGE, SALARY, AND BENEFIT HISTORY.—It shall be 16 an unlawful practice for an employer to— 17 ‘‘(1) rely on the wage history of a prospective 18 employee in considering the prospective employee for 19 employment, including requiring that a prospective 20 employee’s prior wages satisfy minimum or max- 21 imum criteria as a condition of being considered for 22 employment, except that an employer may rely on 23 wage history if it is voluntarily provided by a pro- 24 spective employee; 25 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 6 •HR 1935 IH ‘‘(2) rely on the wage history of a prospective 1 employee in determining the wages for such prospec- 2 tive employee, except that an employer may rely on 3 wage history if it is voluntarily provided by a pro- 4 spective employee; 5 ‘‘(3) require a prospective employee to disclose 6 the wage history of such prospective employee; or 7 ‘‘(4) discharge or in any other manner retaliate 8 against any employee or prospective employee be- 9 cause the employee or prospective employee— 10 ‘‘(A) opposed any act or practice made un- 11 lawful by this section; or 12 ‘‘(B) took an action for which discrimina- 13 tion is forbidden under section 15(a)(3). 14 ‘‘(b) PROHIBITIONS RELATING TO DISCUSSION OF 15 WAGES.—Subject to subsection (c), it shall be an unlawful 16 practice for an employer to— 17 ‘‘(1) prohibit an employee from inquiring about, 18 discussing, or disclosing the wages of the employee 19 or another employee, if such employee has volun- 20 tarily disclosed the wages of such employee; 21 ‘‘(2) prohibit an employee from requesting from 22 the employer an explanation of differentials in com- 23 pensation among employees; or 24 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 7 •HR 1935 IH ‘‘(3) take an adverse employment action against 1 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 ‘‘(c) LIMITATIONS RELATING TO DISCUSSION OF 7 WAGES.—(1) An employer may impose reasonable time, 8 place, and manner limitations on conduct described under 9 subsection (b) if such limitations are written and available 10 to each employee. 11 ‘‘(2) Such limitations may include a prohibition on 12 the discussion by an employee of the wages of another em- 13 ployee if such employee did not voluntarily disclose the 14 wages of such employee. 15 ‘‘(d) SALARY EXPECTATION CONVERSATION.—Noth- 16 ing in this section shall be construed to prevent an em- 17 ployer from— 18 ‘‘(1) inquiring about the salary expectations of 19 a prospective employee; or 20 ‘‘(2) providing information to such employee 21 about the compensation and benefits offered in rela- 22 tion to the position. 23 ‘‘(e) DEFINITION.—In this section, the term ‘wage 24 history’ means the wages paid to the prospective employee 25 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 8 •HR 1935 IH by the prospective employee’s current employer or previous 1 employer.’’. 2 (b) PENALTY.—Section 16 of such Act (29 U.S.C. 3 216) is amended by adding at the end the following new 4 subsection: 5 ‘‘(f) Any person who violates the provisions of section 6 8 shall be liable to each employee for an amount equal 7 to the sum of— 8 ‘‘(1) $2,000 for a first offense, increased by an 9 additional $500 for each subsequent offense, not to 10 exceed $5,000; and 11 ‘‘(2) with respect to an employee of the em- 12 ployer, the amount that the employee would have re- 13 ceived but for such violation and the amount actu- 14 ally received by such employee.’’. 15 SEC. 6. NEGOTIATION SKILLS TRAINING. 16 (a) PROGRAM AUTHORIZED.— 17 (1) IN GENERAL.—The Secretary of Labor, 18 after consultation with the Secretary of Education, 19 is authorized to establish and carry out a grant pro- 20 gram. 21 (2) GRANTS.—In carrying out the program, the 22 Secretary of Labor may make grants on a competi- 23 tive basis to eligible entities to carry out negotiation 24 skills training programs for the purposes of address- 25 VerDate Sep 11 2014 02:16 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 9 •HR 1935 IH ing pay disparities, including through outreach to 1 women and girls. 2 (3) ELIGIBLE ENTITIES.—To be eligible to re- 3 ceive a grant under this subsection, an entity shall 4 be a public agency, such as a State, a local govern- 5 ment in a metropolitan statistical area (as defined 6 by the Office of Management and Budget), a State 7 educational agency, or a local educational agency, a 8 private nonprofit organization, or a community- 9 based organization. 10 (4) APPLICATION.—To be eligible to receive a 11 grant under this subsection, an entity shall submit 12 an application to the Secretary of Labor at such 13 time, in such manner, and containing such informa- 14 tion as the Secretary of Labor may require. 15 (5) USE OF FUNDS.—An entity that receives a 16 grant under this subsection shall use the funds made 17 available through the grant to carry out an effective 18 negotiation skills training program for the purposes 19 described in paragraph (2). 20 (b) INCORPORATING TRAINING INTO EXISTING PRO- 21 GRAMS.—The Secretary of Labor and the Secretary of 22 Education shall issue regulations or policy guidance that 23 provides for integrating the negotiation skills training, to 24 the extent practicable, into programs authorized under— 25 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 10 •HR 1935 IH (1) in the case of the Secretary of Education, 1 the Elementary and Secondary Education Act of 2 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 3 Career and Technical Education Act of 2006 (20 4 U.S.C. 2301 et seq.), the Higher Education Act of 5 1965 (20 U.S.C. 1001 et seq.), and other programs 6 carried out by the Department of Education that the 7 Secretary of Education determines to be appro- 8 priate; and 9 (2) in the case of the Secretary of Labor, the 10 Workforce Innovation and Opportunity Act (29 11 U.S.C. 3101 et seq.), and other programs carried 12 out by the Department of Labor that the Secretary 13 of Labor determines to be appropriate. 14 (c) REPORT.—Not later than 18 months after the 15 date of enactment of this Act, and annually thereafter, 16 the Secretary of Labor, in consultation with the Secretary 17 of Education, shall prepare and submit to Congress a re- 18 port describing the activities conducted under this section 19 and evaluating the effectiveness of such activities in 20 achieving the purposes of this section. 21 SEC. 7. DEPARTMENT OF LABOR STUDY. 22 The Comptroller General shall, not later than 180 23 days after the date of the enactment of this Act, submit 24 to Congress a study on the causes and effects of— 25 VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS 11 •HR 1935 IH (1) pay disparities among men and women; 1 (2) with respect to employees that leave the 2 workforce for parental reasons (commonly referred 3 to as the ‘‘Manager’s Gap’’), the impact on pay and 4 opportunity potential; and 5 (3) the disparities in negotiation skills among 6 men and women upon entering the workforce. 7 Æ VerDate Sep 11 2014 06:32 Apr 11, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H1935.IH H1935 kjohnson on DSK79L0C42 with BILLS