Workers' Right to Training Act

II 116TH CONGRESS 1ST SESSION S. 2468 To require employers to provide training to employees whose jobs are in danger of being changed or replaced due to technology, and for other purposes. IN THE SENATE OF THE UNITED STATES SEPTEMBER 11, 2019 Mr. BROWN introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To require employers to provide training to employees whose jobs are in danger of being changed or replaced due to technology, 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 ‘‘Workers’ Right to 4 Training Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) AFFECTED EMPLOYEE.—The term ‘‘af- 8 fected employee’’ means an employee who may rea- 9 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 2468 IS sonably be expected to experience a change in em- 1 ployment position or an employment loss as a con- 2 sequence of the use of technology by the employer of 3 the employee. 4 (2) CHANGE IN EMPLOYMENT POSITION.—The 5 term ‘‘change in employment position’’ means a ma- 6 terial change— 7 (A) in pay or benefits, working conditions, 8 or schedule of an employee; or 9 (B) that results in an unreasonable com- 10 mute for the employee. 11 (3) COMMITTEE OF EMPLOYEES.—The term 12 ‘‘committee of employees’’ means a committee of 13 nonsupervisory, nonmanagerial employees of an em- 14 ployer. 15 (4) EMPLOYEE.—The term ‘‘employee’’ means 16 any individual who provides labor or services for re- 17 muneration by an employer, unless the employer 18 demonstrates that all of the following conditions are 19 satisfied: 20 (A) The individual is free from the control 21 and direction of the hiring entity in connection 22 with the performance of the work, both under 23 the contract for the performance of the work 24 and in fact. 25 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 2468 IS (B) The individual performs work that is 1 outside the usual course of the hiring entity’s 2 business. 3 (C) The individual is customarily engaged 4 in an independently established trade, occupa- 5 tion, or business of the same nature as that in- 6 volved in the work performed. 7 (5) EMPLOYER.— 8 (A) IN GENERAL.—The term ‘‘employer’’ 9 means any business enterprise, including the 10 nominal employer and any entity that is a par- 11 ent of, or is integrated with, the business enter- 12 prise, that— 13 (i) is engaged in interstate commerce 14 or in the production of goods or services 15 for interstate commerce; and 16 (ii) employs not less than 25 employ- 17 ees, including part-time employees. 18 (B) MULTIPLE EMPLOYERS.—Two or more 19 business enterprises shall each be considered an 20 employer with respect to an employee, if each 21 such business enterprise codetermines or shares 22 control over the employee’s essential terms and 23 conditions of employment. In determining 24 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 2468 IS whether multiple business enterprises are em- 1 ployers of an employee— 2 (i) it shall be relevant to consider 3 whether each enterprise has— 4 (I) direct control and indirect 5 control over the terms and conditions 6 of the employee; 7 (II) reserved authority to control 8 such terms and conditions; and 9 (III) control over such terms and 10 conditions exercised by a person in 11 fact; and 12 (ii) the existence of indirect control or 13 reserved authority alone by a business en- 14 terprise may be sufficient to establish the 15 employer relationship, given specific facts 16 and circumstances. 17 (C) DEFINITIONS.—For the purposes of 18 this paragraph: 19 (i) INTEGRATED.—The term ‘‘inte- 20 grated’’, when used with respect to a busi- 21 ness enterprise, means a business enter- 22 prise whose relationship with another busi- 23 ness enterprise includes— 24 (I) common ownership; 25 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 2468 IS (II) common directors or officers; 1 (III) de facto exercise of control; 2 (IV) unity of personnel policies 3 emanating from a common source; or 4 (V) dependency of operations. 5 (ii) PARENT.—The term ‘‘parent’’ 6 means a business enterprise that partici- 7 pates directly or indirectly in making deci- 8 sions that affect employees of another 9 business enterprise. 10 (6) EMPLOYMENT LOSS.—The term ‘‘employ- 11 ment loss’’ means— 12 (A) an employment termination, other than 13 a discharge for cause, voluntary departure, or 14 retirement; or 15 (B) a reduction in hours of work of more 16 than 50 percent during each month of any 6- 17 month period. 18 (7) INSTITUTION OF HIGHER EDUCATION.—The 19 term ‘‘institution of higher education’’ has the 20 meaning given the term in section 101 of the Higher 21 Education Act of 1965 (20 U.S.C. 1001). 22 (8) RECOGNIZED POSTSECONDARY CREDEN- 23 TIAL.—The term ‘‘recognized postsecondary creden- 24 tial’’ has the meaning given the term in section 3 of 25 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 2468 IS the Workforce Innovation and Opportunity Act (29 1 U.S.C. 3102). 2 (9) REGISTERED APPRENTICESHIP.—The term 3 ‘‘registered apprenticeship’’ means an apprenticeship 4 registered under the Act of August 16, 1937 (com- 5 monly known as the ‘‘National Apprenticeship Act’’; 6 50 Stat. 664, chapter 663; 29 U.S.C. 50 et seq.). 7 (10) REPRESENTATIVE.—The term ‘‘represent- 8 ative’’ means an exclusive representative of employ- 9 ees within the meaning of section 9(a) or 8(f) of the 10 National Labor Relations Act (29 U.S.C. 159(a), 11 158(f)) or section 2 of the Railway Labor Act (45 12 U.S.C. 152). 13 (11) TECHNOLOGY.— 14 (A) IN GENERAL.—The term ‘‘technology’’ 15 means a computerized process used to create 16 value at a business enterprise, including auto- 17 mation, artificial intelligence, robotics, personal 18 computing, information technology, and e-com- 19 merce. 20 (B) REGULATIONS.—The Secretary of 21 Labor, in consultation with the Secretary of 22 Commerce, shall promulgate regulations further 23 defining the term ‘‘technology’’ for purposes of 24 this Act. 25 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 2468 IS SEC. 3. BARGAINING AND NOTICE REQUIRED BEFORE USE 1 OF EMPLOYMENT-CHANGING OR EMPLOY- 2 MENT-ELIMINATING TECHNOLOGY. 3 (a) BARGAINING WITH EMPLOYEES BEFORE USE OF 4 EMPLOYMENT-CHANGING OR EMPLOYMENT-ELIMINATING 5 TECHNOLOGY.— 6 (1) IN GENERAL.—Not later than 180 days be- 7 fore providing any notices under subsection (b), an 8 employer that intends to use technology that will re- 9 sult in a change in employment position or an em- 10 ployment loss to any employees of the employer shall 11 engage in bargaining with such employees through 12 their chosen representative in order to ensure the 13 technology is procured and implemented in a way 14 that incorporates the skills and roles of the employ- 15 ees of the employer. 16 (2) CHOSEN REPRESENTATIVES.—An employer 17 shall carry out the bargaining required under para- 18 graph (1) with— 19 (A) in the case of affected employees who 20 are represented by a labor organization for pur- 21 poses of collective bargaining, a representative 22 from the labor organization; or 23 (B) in the case of affected employees who 24 are not represented by a labor organization for 25 purposes of collective bargaining, with a com- 26 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 2468 IS mittee of employees who are elected by their 1 peers for purposes of the bargaining. 2 (3) MEDIATION UPON FAILURE TO AGREE.— 3 (A) REQUEST.—If an employer and the 4 chosen representative of employees are unable 5 to obtain an agreement under paragraph (1) by 6 180 days after the commencement of the bar- 7 gaining, the parties shall notify the Federal Me- 8 diation and Conciliation Service of the failure to 9 reach agreement and request mediation. 10 (B) ROLE OF SERVICE.—The Federal Me- 11 diation and Conciliation Service shall, upon re- 12 ceiving a request under subparagraph (A), 13 promptly communicate with the parties and 14 work to bring the parties to agreement through 15 mediation and conciliation. 16 (4) INTERACTION WITH NLRA.—A committee of 17 employees constituted for purposes of this subsection 18 shall not be found to constitute a labor organization, 19 as defined in section 2 of the National Labor Rela- 20 tions Act (29 U.S.C. 152). 21 (b) NOTICE TO EMPLOYEES FOR CHANGE IN EM- 22 PLOYMENT POSITIONS.— 23 (1) IN GENERAL.—An employer that intends to 24 use technology that will result in a change in em- 25 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 2468 IS ployment position for one or more employees of the 1 employer shall, not later than 180 days before any 2 such change in employment position, provide written 3 notice signed by the employer’s authorized rep- 4 resentative— 5 (A) of the technology, including a descrip- 6 tion of the technology, and the impact of the 7 technology on employment positions, including 8 which employment positions will be impacted 9 and whether any new positions will be created; 10 and 11 (B) regarding the required training that 12 the employer will provide under section 4. 13 (2) PROVISION OF NOTICE.—The written notice 14 under paragraph (1) shall be— 15 (A) provided to each chosen representative 16 of the affected employees, as of the date of the 17 notice, and to each affected employee; 18 (B) distributed electronically if the em- 19 ployer customarily communicates with its em- 20 ployees through electronic communications; and 21 (C) posted publicly in conspicuous loca- 22 tions in the workplace, including all places 23 where notices to employees are commonly post- 24 ed by the employer. 25 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 2468 IS (c) NOTICE TO EMPLOYEES SUBJECT TO AN EM- 1 PLOYMENT LOSS.—An employer that intends to use tech- 2 nology that will cause an employment loss for one or more 3 employees of the employer shall, not later than 270 days 4 before any such employment loss, provide and post written 5 notice that includes the information described in sub- 6 section (b)(1), in the same manner as described in sub- 7 section (b)(2). 8 SEC. 4. REQUIRED TRAINING AND BENEFITS. 9 (a) CHANGES IN EMPLOYMENT POSITION.— 10 (1) IN GENERAL.—An employer who is required 11 under section 3(b) to provide notice of technology 12 that will result in a change in employment position 13 and require different skills due to the use of tech- 14 nology for one or more employees shall, beginning 15 not later than 180 days before changing employee 16 positions due to technology, provide on-the-job train- 17 ing described in paragraph (2) to each affected em- 18 ployee who will be impacted by the technology. 19 (2) TYPE OF TRAINING.—The training provided 20 under paragraph (1) shall— 21 (A) be training that prepares the employee 22 to be able to fulfill the new duties of the posi- 23 tion, without regard to the length of time the 24 training will take; and 25 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 2468 IS (B) be supplemented, as necessary, by em- 1 ployer-paid training— 2 (i) through a registered apprentice- 3 ship program; 4 (ii) that leads to a recognized postsec- 5 ondary credential (which may be an indus- 6 try-recognized credential) offered by an in- 7 stitution of higher education; or 8 (iii) that leads to an industry-recog- 9 nized credential offered by a nonprofit or- 10 ganization that is an eligible provider 11 under section 122(d) of the Workforce In- 12 novation and Opportunity Act (29 U.S.C. 13 3152(d)). 14 (b) EMPLOYMENT LOSS.— 15 (1) PRIORITY AND TRAINING.—An employer 16 who is required under section 3(c) to provide notice 17 of technology that will result in employment loss for 18 one or more employees of the employer shall— 19 (A) give hiring priority to affected employ- 20 ees for any new or open positions of the em- 21 ployer for 1 year after the date of the notice; 22 (B) beginning not later than 180 days be- 23 fore the employment loss, provide job training 24 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 2468 IS described in paragraph (2) for not less than 1 1 year to prepare the employee for— 2 (i) another position with the employer 3 that provides wages comparable to the em- 4 ployee’s original position; or 5 (ii) an occupation that provides wages 6 comparable to the employee’s original posi- 7 tion with a different employer; and 8 (C) on the day that the employee experi- 9 ences the employment loss, provide the affected 10 employee with 6 months of severance pay, in a 11 total amount equal to 6 months of the employ- 12 ee’s wages in the employee’s prior position. 13 (2) TYPE OF TRAINING.— 14 (A) IN GENERAL.—The training provided 15 under paragraph (1) (except for training de- 16 scribed in paragraph (1)(B)(ii)) shall be train- 17 ing that is— 18 (i) chosen by the employee; and 19 (ii) provided at the worksite or supple- 20 mented as necessary by employer-paid 21 training— 22 (I) through a registered appren- 23 ticeship program; or 24 VerDate Sep 11 2014 01:52 Sep 12, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2468.IS S2468 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 2468 IS (II) that leads to a recognized 1 postsecondary credential offered by an 2 institution of higher education. 3 (B) OFFSITE TRAINING RULES.—If train- 4 ing required under subparagraph (A) is supple- 5 mented by offsite training, then the employer 6 shall permit the employee to participate in that 7 training during work hours, as long as the em- 8 ployee works a minimum of 15 hours a week. 9 (C) TRAINING [Text truncated for display. 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