II 116TH CONGRESS 2D SESSION S. 3358 To extend protections to part-time workers in the areas of family and medical leave and pension plans, and to ensure equitable treatment in the workplace. IN THE SENATE OF THE UNITED STATES FEBRUARY 27, 2020 Mr. SCHUMER (for Ms. WARREN (for herself, Mr. BOOKER, Mr. MARKEY, and Ms. HARRIS)) introduced the following bill; which was read twice and re- ferred to the Committee on Health, Education, Labor, and Pensions A BILL To extend protections to part-time workers in the areas of family and medical leave and pension plans, and to ensure equitable treatment in the workplace. 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 ‘‘Part-Time Worker Bill 4 of Rights Act of 2020’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents is as follows: 7 Sec. 1. Short title. Sec. 2. Table of contents. VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3358 IS TITLE I—EXPANDING ACCESS TO BENEFITS FOR PART-TIME WORKERS Sec. 101. Elimination of hours of service requirement for FMLA leave. Sec. 102. Improving coverage for long-term part-time workers. TITLE II—ENSURING FAIR TREATMENT FOR PART-TIME WORKERS Sec. 201. Definitions. Sec. 202. Elimination of discrimination on the basis of hours worked. Sec. 203. Offer of work to existing employees. Sec. 204. Prohibited acts. Sec. 205. Remedies and enforcement. Sec. 206. Regulations. TITLE I—EXPANDING ACCESS TO 1 BENEFITS FOR PART-TIME 2 WORKERS 3 SEC. 101. ELIMINATION OF HOURS OF SERVICE REQUIRE- 4 MENT FOR FMLA LEAVE. 5 (a) AMENDMENT.—Section 101(2)(A) of the Family 6 and Medical Leave Act of 1993 (29 U.S.C. 2611(2)(A)) 7 is amended to read as follows: 8 ‘‘(A) IN GENERAL.—The term ‘eligible em- 9 ployee’ means an employee who has been em- 10 ployed for at least 12 months by the employer 11 with respect to whom leave is requested under 12 section 102.’’. 13 (b) CONFORMING AMENDMENTS.— 14 (1) Section 101(2) of such Act (29 U.S.C. 15 2611(2)) is amended by striking subparagraphs (C) 16 and (D). 17 (2) Section 102(a) of such Act (29 U.S.C. 18 2612(a)) is amended by striking paragraph (5). 19 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3358 IS (c) EFFECTIVE DATE.—The amendments made by 1 subsections (a) and (b) shall take effect beginning on the 2 date that is 1 year after the date of enactment of this 3 Act. 4 SEC. 102. IMPROVING COVERAGE FOR LONG-TERM PART- 5 TIME WORKERS. 6 (a) IN GENERAL.—Section 202 of the Employee Re- 7 tirement Income Security Act of 1974 (29 U.S.C. 1052) 8 is amended by adding at the end the following new sub- 9 section: 10 ‘‘(c) SPECIAL RULE FOR CERTAIN PART-TIME EM- 11 PLOYEES.— 12 ‘‘(1) IN GENERAL.—A pension plan that in- 13 cludes either a qualified cash or deferred arrange- 14 ment (as defined in section 401(k) of the Internal 15 Revenue Code of 1986) or a salary reduction agree- 16 ment (as described in section 403(b) of such Code) 17 shall not require, as a condition of participation in 18 the arrangement or agreement, that an employee 19 complete a period of service with the employer (or 20 employers) maintaining the plan extending beyond 21 the close of the earlier of— 22 ‘‘(A) the period permitted under subsection 23 (a)(1) (determined without regard to subpara- 24 graph (B)(i) thereof) and section 410(a)(1) of 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3358 IS such Code (determined without regard to sub- 1 paragraph (B)(i) thereof); or 2 ‘‘(B) the first 24-month period— 3 ‘‘(i) consisting of 2 consecutive 12- 4 month periods during each of which the 5 employee has at least 500 hours of service; 6 and 7 ‘‘(ii) by the close of which the em- 8 ployee has attained the age of 21. 9 ‘‘(2) EXCEPTION.—Paragraph (1)(B) shall not 10 apply to employees who are included in a unit of em- 11 ployees covered by an agreement which the Secretary 12 finds to be a collective bargaining agreement be- 13 tween employee representatives and 1 or more em- 14 ployers, if there is evidence that retirement benefits 15 were the subject of good faith bargaining between 16 such employee representatives and such employer or 17 employers. 18 ‘‘(3) COORDINATION WITH OTHER RULES.—In 19 the case of employees who are not highly com- 20 pensated employees (within the meaning of section 21 414(q) of the Internal Revenue Code of 1986) and 22 who are eligible to participate in the arrangement or 23 agreement solely by reason of paragraph (1)(B): 24 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3358 IS ‘‘(A) EXCLUSIONS.—An employer may 1 elect to exclude such employees from the deter- 2 mination of whether the plan that includes the 3 arrangement or agreement satisfies the require- 4 ments of subsections (a)(4), (k)(3), (k)(12), 5 (k)(13), (m)(2), (m)(11), and (m)(12) of sec- 6 tion 401 of such Code, section 410(b) of such 7 Code, and section 416 of such Code. If the em- 8 ployer so excludes such employees with respect 9 to the requirements of any such provision, such 10 employees shall be excluded with respect to the 11 requirements of all such provisions. This sub- 12 paragraph shall cease to apply to any employee 13 as of the first plan year beginning after the 14 plan year in which the employee completes 1 15 year of service (without regard to paragraph 16 (1)(B) of this subsection). 17 ‘‘(B) TIME OF PARTICIPATION.—The rules 18 of subsection (a)(4) and section 410(a)(4) of 19 the Internal Revenue Code of 1986 shall apply 20 to such employees. 21 ‘‘(4) 12-MONTH PERIOD.—For purposes of this 22 subsection, 12-month periods shall be determined in 23 the same manner as under the last sentence of sub- 24 section (a)(3)(A), except that 12-month periods be- 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3358 IS ginning before January 1, 2019, shall not be taken 1 into account.’’. 2 (b) VESTING.—Section 203(b) of the Employee Re- 3 tirement Income Security Act of 1974 (29 U.S.C. 4 1053(b)) is amended by redesignating paragraph (4) as 5 paragraph (5) and by inserting after paragraph (3) the 6 following new paragraph: 7 ‘‘(4) PART-TIME EMPLOYEES.—For purposes of de- 8 termining whether an employee who is eligible to partici- 9 pate in a qualified cash or deferred arrangement or a sal- 10 ary reduction agreement under a plan solely by reason of 11 section 202(c)(1)(B) has a nonforfeitable right to em- 12 ployer contributions— 13 ‘‘(A) except as provided in subparagraph (B), 14 each 12-month period for which the employee has at 15 least 500 hours of service shall be treated as a year 16 of service; and 17 ‘‘(B) 12-month periods occurring before the 24- 18 month period described in section 202(c)(1)(B) shall 19 not be treated as years of service. 20 For purposes of this paragraph, 12-month periods shall 21 be determined in the same manner as under the last sen- 22 tence of section 202(a)(3)(A), except that 12-month peri- 23 ods beginning before January 1, 2019, shall not be taken 24 into account.’’. 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3358 IS (c) PENALTY.—Section 502 of the Employee Retire- 1 ment Income Security Act of 1974 (29 U.S.C. 1132) is 2 amended by adding at the end the following new sub- 3 section: 4 ‘‘(n) REQUIREMENTS RELATING TO PART-TIME EM- 5 PLOYEES.—In the case of a plan that fails to permit par- 6 ticipation as required by section 202(c), the Secretary may 7 assess a civil penalty against the plan sponsor in an 8 amount equal to $10,000 per year per employee to whom 9 such failure relates. The Secretary may, in the Secretary’s 10 sole discretion, waive or reduce the penalty under this sub- 11 section if the Secretary determines that the plan sponsor 12 acted reasonably and in good faith.’’. 13 TITLE II—ENSURING FAIR 14 TREATMENT FOR PART-TIME 15 WORKERS 16 SEC. 201. DEFINITIONS. 17 In this title: 18 (1) EMPLOY.—The term ‘‘employ’’ has the 19 meaning given the term in section 3(g) of the Fair 20 Labor Standards Act of 1938 (29 U.S.C. 203(g)). 21 (2) EMPLOYEE.—The term ‘‘employee’’ means 22 an individual who is— 23 (A) an employee, as defined in section 3(e) 24 of the Fair Labor Standards Act of 1938 (29 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3358 IS U.S.C. 203(e)), who is not covered under any of 1 subparagraphs (B) through (G), except that a 2 reference in such section to an employer shall 3 be considered to be a reference to a person in 4 commerce described in paragraph (3)(A); 5 (B) a State employee described in section 6 304(a) of the Government Employee Rights Act 7 of 1991 (42 U.S.C. 2000e–16c(a)); 8 (C) a covered employee, as defined in sec- 9 tion 101 of the Congressional Accountability 10 Act of 1995 (2 U.S.C. 1301), except that such 11 term shall not include an applicant for employ- 12 ment; 13 (D) a covered employee, as defined in sec- 14 tion 411(c) of title 3, United States Code; 15 (E) a Federal officer or employee covered 16 under subchapter V of chapter 63 of title 5, 17 United States Code; or 18 (F) an employee of the Government Ac- 19 countability Office. 20 (3) EMPLOYER.—The term ‘‘employer’’— 21 (A)(i) means any person in commerce 22 that— 23 (I) except as provided in subclause 24 (II)— 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3358 IS (aa) employs more than 500 em- 1 ployees described in paragraph (2)(A), 2 which shall be calculated by including 3 all employees described in paragraph 4 (2)(A) performing work for compensa- 5 tion on a full-time, part-time, or tem- 6 porary basis, except that if the num- 7 ber of such employees who perform 8 work for such a person for compensa- 9 tion fluctuates, the number may be 10 determined for a calendar year based 11 upon the average number of such em- 12 ployees who performed work for the 13 person for compensation during the 14 preceding calendar year; or 15 (bb) is part of an integrated en- 16 terprise, chain of businesses, group of 17 franchises associated with a 18 franchisor, or network of franchises 19 that, in the aggregate, employs more 20 than 500 employees, calculated in ac- 21 cordance with item (aa); and 22 (II) for purposes of section 202, em- 23 ploys, directly or in the aggregate as de- 24 scribed in subclause (I)(bb), more than 15 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3358 IS employees, calculated in accordance with 1 subclause (I)(aa); 2 (ii) includes— 3 (I) any person who acts, directly or 4 indirectly, in the interest of such an em- 5 ployer to any of the employees (described 6 in clause (i)) of such employer; and 7 (II) any successor in interest of such 8 an employer; and 9 (iii) includes an agency described in sub- 10 paragraph (A)(iii) of section 101(4) of the 11 Family and Medical Leave Act of 1993 (29 12 U.S.C. 2611(4)), to which subparagraph (B) of 13 such section shall apply; 14 (B) is an entity employing a State em- 15 ployee described in section 304(a) of the Gov- 16 ernment Employee Rights Act of 1991 (42 17 U.S.C. 2000e–16c(a)); 18 (C) is an employing office, as defined in 19 section 101 of the Congressional Accountability 20 Act of 1995 (2 U.S.C. 1301); 21 (D) is an employing office, as defined in 22 section 411(c) of title 3, United States Code; 23 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3358 IS (E) is an employing agency covered under 1 subchapter V of chapter 63 of title 5, United 2 States Code; or 3 (F) is the Comptroller General of the 4 United States. 5 (4) PERSON.—The term ‘‘person’’, except as 6 used with the term ‘‘person in commerce’’, has the 7 meaning given the term in section 3(a) of the Fair 8 Labor Standards Act of 1938 (29 U.S.C. 203(a)). 9 (5) PERSON IN COMMERCE.— 10 (A) IN GENERAL.—The term ‘‘person in 11 commerce’’ means any person who is engaged 12 in commerce, in any industry or activity affect- 13 ing commerce, or in the production of goods for 14 commerce. 15 (B) COMMERCE.—In subparagraph (A), 16 the term ‘‘commerce’’ includes government. 17 SEC. 202. ELIMINATION OF DISCRIMINATION ON THE BASIS 18 OF HOURS WORKED. 19 (a) RULE.— 20 (1) IN GENERAL.—An employer shall not dis- 21 criminate against an employee on the basis that 22 such employee is scheduled to work fewer hours per 23 week, or is employed for a shorter expected duration, 24 than another employee of the employer if the jobs of 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3358.IS S3358 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3358 IS such employees require substantially equal skill, ef- 1 fort, responsibility, and duties and such jobs are per- 2 formed under similar working conditions. 3 (2) EXAMPLES.—Discrimination described in 4 paragraph (1) shall include differential treatment 5 with respect to— 6 (A) rate of compensation; 7 (B) notice of, and input into, work hours; 8 (C) eligibility to accrue, on a pro rata 9 basis, employer-provided paid and unpaid time 10 off and other benefits; 11 (D) promotion opportunities; or 12 (E) other terms, conditions, or privileges of 13 employment. 14 (b) DISTINCTIONS PERMITTED.—This section shall 15 not be construed to prohibit differences in rate of com- 16 pensation, or other conditions, terms, or privileges of em- 17 ployment, of employees of an employer for reasons other 18 than the number of hours the employees are scheduled to 19 work per week, or the expected duration of employment 20 of the employees, including for reasons such as— 21 (1) the date on which the employees are hired; 22 (2) a merit system; or 23 (3) a system that measures earnings by quan- 24 tity per hour or quality of production. 25 VerDate Sep 11 2014 00:30 Feb 29, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 [Text truncated for display. 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