Paycheck Fairness Act

II Calendar No. 134 118TH CONGRESS 1ST SESSION S. 728 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 MARCH 9, 2023 Mrs. MURRAY (for herself, Mr. SCHUMER, Mr. SANDERS, Ms. CORTEZ MASTO, Mr. REED, Mr. LUJA´N, Mr. MERKLEY, Ms. HIRONO, Mr. PADILLA, Ms. CANTWELL, Mr. SCHATZ, Mr. FETTERMAN, Mr. CASEY, Mr. MURPHY, Mr. MARKEY, Mr. BROWN, Mr. HICKENLOOPER, Mr. KING, Mr. KAINE, Ms. SINEMA, Mr. WELCH, Mr. BOOKER, Mrs. FEINSTEIN, Ms. STABE- NOW, Ms. WARREN, Mr. MENENDEZ, Mr. CARPER, Mr. WARNER, Ms. BALDWIN, Ms. SMITH, Ms. KLOBUCHAR, Mr. BLUMENTHAL, Mrs. GILLI- BRAND, Mr. VAN HOLLEN, Mr. WARNOCK, Ms. DUCKWORTH, Mrs. SHA- HEEN, Mr. HEINRICH, Mr. DURBIN, Mr. WHITEHOUSE, Mr. COONS, Mr. KELLY, Ms. HASSAN, Mr. CARDIN, Ms. ROSEN, Mr. WYDEN, Mr. BEN- NET, Mr. MANCHIN, Mr. OSSOFF, Mr. TESTER, and Mr. PETERS) intro- duced the following bill; which was read twice and referred to the Com- mittee on Health, Education, Labor, and Pensions JULY 18, 2023 Reported by Mr. SANDERS, without amendment 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. VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 728 RS Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Paycheck Fairness 4 Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 (1) Women have entered the workforce in 8 record numbers over the past 50 years. 9 (2) Despite the enactment of the Equal Pay Act 10 of 1963, many women continue to earn significantly 11 lower pay than men for equal work. These pay dis- 12 parities exist in both the private and governmental 13 sectors. Pay disparities are especially severe for 14 women and girls of color. 15 (3) In many instances, the pay disparities can 16 only be due to continued intentional discrimination 17 or the lingering effects of past discrimination. After 18 controlling for educational attainment, occupation, 19 industry, union status, race, ethnicity, and labor 20 force experience roughly 40 percent of the pay gap 21 remains unexplained. 22 (4) The existence of such pay disparities— 23 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 728 RS (A) depresses the wages of working fami- 1 lies who rely on the wages of all members of the 2 family to make ends meet; 3 (B) undermines women’s retirement secu- 4 rity, which is often based on earnings while in 5 the workforce; 6 (C) prevents women from realizing their 7 full economic potential, particularly in terms of 8 labor force participation and attachment; 9 (D) has been spread and perpetuated, 10 through commerce and the channels and instru- 11 mentalities of commerce, among the workers of 12 the several States; 13 (E) burdens commerce and the free flow of 14 goods in commerce; 15 (F) constitutes an unfair method of com- 16 petition in commerce; 17 (G) tends to cause labor disputes, as evi- 18 denced by the tens of thousands of charges filed 19 with the Equal Employment Opportunity Com- 20 mission against employers between 2010 and 21 2016; 22 (H) interferes with the orderly and fair 23 marketing of goods in commerce; and 24 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 728 RS (I) in many instances, may deprive workers 1 of equal protection on the basis of sex in viola- 2 tion of the 5th and 14th Amendments to the 3 Constitution. 4 (5)(A) Artificial barriers to the elimination of 5 discrimination in the payment of wages on the basis 6 of sex continue to exist decades after the enactment 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 8 201 et seq.) and the Civil Rights Act of 1964 (42 9 U.S.C. 2000a et seq.). 10 (B) These barriers have resulted, in significant 11 part, because the Equal Pay Act of 1963 has not 12 worked as Congress originally intended. Improve- 13 ments and modifications to the law are necessary to 14 ensure that the Act provides effective protection to 15 those subject to pay discrimination on the basis of 16 their sex. 17 (C) Elimination of such barriers would have 18 positive effects, including— 19 (i) providing a solution to problems in the 20 economy created by unfair pay disparities; 21 (ii) substantially reducing the number of 22 working women earning unfairly low wages, 23 thereby reducing the dependence on public as- 24 sistance; 25 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 728 RS (iii) promoting stable families by enabling 1 all family members to earn a fair rate of pay; 2 (iv) remedying the effects of past discrimi- 3 nation on the basis of sex and ensuring that in 4 the future workers are afforded equal protection 5 on the basis of sex; and 6 (v) ensuring equal protection pursuant to 7 Congress’ power to enforce the 5th and 14th 8 Amendments to the Constitution. 9 (6) The Department of Labor and the Equal 10 Employment Opportunity Commission carry out 11 functions to help ensure that women receive equal 12 pay for equal work. 13 (7) The Department of Labor is responsible 14 for— 15 (A) collecting and making publicly avail- 16 able information about women’s pay; 17 (B) ensuring that companies receiving 18 Federal contracts comply with anti-discrimina- 19 tion affirmative action requirements of Execu- 20 tive Order 11246 (relating to equal employment 21 opportunity); 22 (C) disseminating information about wom- 23 en’s rights in the workplace; 24 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 728 RS (D) helping women who have been victims 1 of pay discrimination obtain a remedy; and 2 (E) investigating and prosecuting systemic 3 gender based pay discrimination involving gov- 4 ernment contractors. 5 (8) The Equal Employment Opportunity Com- 6 mission is the primary enforcement agency for 7 claims made under the Equal Pay Act of 1963, and 8 issues regulations and guidance on appropriate in- 9 terpretations of the law. 10 (9) Vigorous implementation by the Depart- 11 ment of Labor and the Equal Employment Oppor- 12 tunity Commission, increased information as a result 13 of the amendments made by this Act, wage data, 14 and more effective remedies, will ensure that women 15 are better able to recognize and enforce their rights. 16 (10) Certain employers have already made 17 great strides in eradicating unfair pay disparities in 18 the workplace and their achievements should be rec- 19 ognized. 20 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE- 21 QUIREMENTS. 22 (a) BONA FIDE FACTOR DEFENSE AND MODIFICA- 23 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 24 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 728 RS 6(d)(1) of the Fair Labor Standards Act of 1938 (29 1 U.S.C. 206(d)(1)) is amended— 2 (1) by striking ‘‘No employer having’’ and in- 3 serting ‘‘(A) No employer having’’; 4 (2) by striking ‘‘any other factor other than 5 sex’’ and inserting ‘‘a bona fide factor other than 6 sex, such as education, training, or experience’’; and 7 (3) by inserting at the end the following: 8 ‘‘(B) The bona fide factor defense described in sub- 9 paragraph (A)(iv) shall apply only if the employer dem- 10 onstrates that such factor (i) is not based upon or derived 11 from a sex-based differential in compensation; (ii) is job- 12 related with respect to the position in question; (iii) is con- 13 sistent with business necessity; and (iv) accounts for the 14 entire differential in compensation at issue. Such defense 15 shall not apply where the employee demonstrates that an 16 alternative employment practice exists that would serve 17 the same business purpose without producing such dif- 18 ferential and that the employer has refused to adopt such 19 alternative practice. 20 ‘‘(C) For purposes of subparagraph (A), employees 21 shall be deemed to work in the same establishment if the 22 employees work for the same employer at workplaces lo- 23 cated in the same county or similar political subdivision 24 of a State. The preceding sentence shall not be construed 25 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 728 RS as limiting broader applications of the term ‘establish- 1 ment’ consistent with rules prescribed or guidance issued 2 by the Equal Employment Opportunity Commission.’’. 3 (b) NONRETALIATION PROVISION.—Section 15 of the 4 Fair Labor Standards Act of 1938 (29 U.S.C. 215) is 5 amended— 6 (1) in subsection (a)— 7 (A) in paragraph (3), by striking ‘‘em- 8 ployee has filed’’ and all that follows and insert- 9 ing ‘‘employee— 10 ‘‘(A) has made a charge or filed any com- 11 plaint or instituted or caused to be instituted 12 any investigation, proceeding, hearing, or action 13 under or related to this Act, including an inves- 14 tigation conducted by the employer, or has tes- 15 tified or is planning to testify or has assisted or 16 participated in any manner in any such inves- 17 tigation, proceeding, hearing or action, or has 18 served or is planning to serve on an industry 19 committee; or 20 ‘‘(B) has inquired about, discussed, or dis- 21 closed the wages of the employee or another 22 employee (such as by inquiring or discussing 23 with the employer why the wages of the em- 24 ployee are set at a certain rate or salary);’’; 25 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 728 RS (B) in paragraph (5), by striking the pe- 1 riod at the end and inserting ‘‘; or’’; and 2 (C) by adding at the end the following: 3 ‘‘(6) to require an employee to sign a contract 4 or waiver that would prohibit the employee from dis- 5 closing information about the employee’s wages.’’; 6 and 7 (2) by adding at the end the following: 8 ‘‘(c) Subsection (a)(3)(B) shall not apply to instances 9 in which an employee who has access to the wage informa- 10 tion of other employees as a part of such employee’s essen- 11 tial job functions discloses the wages of such other employ- 12 ees to individuals who do not otherwise have access to such 13 information, unless such disclosure is in response to a 14 complaint or charge or in furtherance of an investigation, 15 proceeding, hearing, or action under section 6(d), includ- 16 ing an investigation conducted by the employer. Nothing 17 in this subsection shall be construed to limit the rights 18 of an employee provided under any other provision of 19 law.’’. 20 (c) ENHANCED PENALTIES.—Section 16(b) of the 21 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 22 amended— 23 (1) by inserting after the first sentence the fol- 24 lowing: ‘‘Any employer who violates section 6(d) 25 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 728 RS shall additionally be liable for such compensatory 1 damages, or, where the employee demonstrates that 2 the employer acted with malice or reckless indiffer- 3 ence, punitive damages as may be appropriate, ex- 4 cept that the United States shall not be liable for 5 punitive damages.’’; 6 (2) in the sentence beginning ‘‘An action to’’, 7 by striking ‘‘the preceding sentences’’ and inserting 8 ‘‘any of the preceding sentences of this subsection’’; 9 (3) in the sentence beginning ‘‘No employees 10 shall’’, by striking ‘‘No employees’’ and inserting 11 ‘‘Except with respect to class actions brought to en- 12 force section 6(d), no employee’’; 13 (4) by inserting after the sentence referred to 14 in paragraph (3), the following: ‘‘Notwithstanding 15 any other provision of Federal law, any action 16 brought to enforce section 6(d) may be maintained 17 as a class action as provided by the Federal Rules 18 of Civil Procedure.’’; and 19 (5) in the sentence beginning ‘‘The court in’’— 20 (A) by striking ‘‘in such action’’ and in- 21 serting ‘‘in any action brought to recover the li- 22 ability prescribed in any of the preceding sen- 23 tences of this subsection’’; and 24 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 728 RS (B) by inserting before the period the fol- 1 lowing: ‘‘, including expert fees’’. 2 (d) ACTION BY SECRETARY.—Section 16(c) of the 3 Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 4 amended— 5 (1) in the first sentence— 6 (A) by inserting ‘‘or, in the case of a viola- 7 tion of section 6(d), additional compensatory or 8 punitive damages, as described in subsection 9 (b),’’ before ‘‘and the agreement’’; and 10 (B) by inserting before the period the fol- 11 lowing: ‘‘, or such compensatory or punitive 12 damages, as appropriate’’; 13 (2) in the second sentence, by inserting before 14 the period the following: ‘‘and, in the case of a viola- 15 tion of section 6(d), additional compensatory or pu- 16 nitive damages, as described in subsection (b)’’; 17 (3) in the third sentence, by striking ‘‘the first 18 sentence’’ and inserting ‘‘the first or second sen- 19 tence’’; and 20 (4) in the sixth sentence— 21 (A) by striking ‘‘commenced in the case’’ 22 and inserting ‘‘commenced— 23 ‘‘(1) in the case’’; 24 VerDate Sep 11 2014 02:30 Jul 19, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S728.RS S728 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 728 RS (B) by striking the period and inserting ‘‘; 1 or’’; and 2 (C) by adding at the end the following: 3 ‘‘(2) in the case of a class action brought to en- 4 force section 6(d), on the date on which the indi- 5 vidual becomes a party plaintiff to the class action.’’. 6 SEC. 4. TRAINING. 7 The Equal Employment Opportunity Commission 8 and the Office of Federal Contract Compliance Programs, 9 subject to the availability of funds appropriated under sec- 10 tion 11, shall provide training to Commission employees 11 and affected individuals and entities on matters involving 12 discrimin [Text truncated for display. Full text available on Congress.gov.]