Paycheck Fairness Act - Amends the portion of the Fair Labor Standards Act of 1938 (FLSA) known as the Equal Pay Act to revise remedies for, enforcement of, and exceptions to prohibitions against sex discrimination in the payment of wages.
Revises the exception to the prohibition for a wage rate differential based on any other factor other than sex. Limits such factors to bona fide factors, such as education, training, or experience.
States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based upon or derived from a sex-based differential in compensation, (2) is job-related with respect to the position in question, and (3) is consistent with business necessity. Makes such defense inapplicable where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential, and (2) the employer has refused to adopt such alternative practice.
Revises the prohibition against employer retaliation for employee complaints. Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee in response to a complaint or charge, or in furtherance of a sex discrimination investigation, proceeding, hearing, or action, or an investigation conducted by the employer.
Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or (except for the federal government) punitive damages.
States that any action brought to enforce the prohibition against sex discrimination may be maintained as a class action in which individuals may be joined as party plaintiffs without their written consent.
Authorizes the Secretary of Labor (Secretary) to seek additional compensatory or punitive damages in a sex discrimination action.
Requires the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs to train EEOC employees and affected individuals and entities on matters involving wage discrimination.
Authorizes the Secretary to make grants to eligible entities for negotiation skills training programs for girls and women. Directs the Secretary and the Secretary of Education to issue regulations or policy guidance to integrate such training into certain programs under their Departments.
Directs the Secretary to conduct studies and provide information to employers, labor organizations, and the general public regarding the means available to eliminate pay disparities between men and women.
Establishes the Secretary of Labor's National Award for Pay Equity in the Workplace for an employer who has made a substantial effort to eliminate pay disparities between men and women.
Amends the Civil Rights Act of 1964 to require the EEOC to collect from employers pay information data regarding the sex, race, and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination.
Directs: (1) the Commissioner of Labor Statistics to continue to collect data on women workers in the Current Employment Statistics survey, (2) the Office of Federal Contract Compliance Programs to use specified types of methods in investigating compensation discrimination and in enforcing pay equity, and (3) the Secretary to make accurate information on compensation discrimination readily available to the public.
Directs the Secretary and the Commissioner [sic] of the EEOC jointly to develop technical assistance material to assist small businesses to comply with the requirements of this Act.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 797 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 797
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
April 12, 2011
Ms. Mikulski (for herself, Mr. Akaka, Mrs. Boxer, Ms. Cantwell, Mr.
Cardin, Mr. Casey, Mr. Coons, Mr. Durbin, Mr. Franken, Mrs. Gillibrand,
Mr. Harkin, Mr. Kerry, Ms. Klobuchar, Mr. Lautenberg, Mr. Leahy, Mr.
Levin, Mrs. McCaskill, Mrs. Murray, Mr. Reed, Mr. Reid, Mrs. Shaheen,
Ms. Stabenow, Mr. Whitehouse, Mr. Wyden, Mr. Merkley, and Mrs. Hagan)
introduced the following bill; which was read twice and referred to the
Committee 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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Paycheck Fairness Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Women have entered the workforce in record numbers over
the past 50 years.
(2) Despite the enactment of the Equal Pay Act of 1963,
many women continue to earn significantly lower pay than men
for equal work. These pay disparities exist in both the private
and governmental sectors. In many instances, the pay
disparities can only be due to continued intentional
discrimination or the lingering effects of past discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who
rely on the wages of all members of the family to make
ends meet;
(B) undermines women's retirement security, which
is often based on earnings while in the workforce;
(C) prevents the optimum utilization of available
labor resources;
(D) has been spread and perpetuated, through
commerce and the channels and instrumentalities of
commerce, among the workers of the several States;
(E) burdens commerce and the free flow of goods in
commerce;
(F) constitutes an unfair method of competition in
commerce;
(G) leads to labor disputes burdening and
obstructing commerce and the free flow of goods in
commerce;
(H) interferes with the orderly and fair marketing
of goods in commerce; and
(I) in many instances, may deprive workers of equal
protection on the basis of sex in violation of the 5th
and 14th Amendments.
(4)(A) Artificial barriers to the elimination of
discrimination in the payment of wages on the basis of sex
continue to exist decades after the enactment of the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil
Rights Act of 1964 (42 U.S.C. 2000a et seq.).
(B) These barriers have resulted, in significant part,
because the Equal Pay Act of 1963 has not worked as Congress
originally intended. Improvements and modifications to the
provisions added by the Act are necessary to ensure that the
provisions provide effective protection to those subject to pay
discrimination on the basis of their sex.
(C) Elimination of such barriers would have positive
effects, including--
(i) providing a solution to problems in the economy
created by unfair pay disparities;
(ii) substantially reducing the number of working
women earning unfairly low wages, thereby reducing the
dependence on public assistance;
(iii) promoting stable families by enabling all
family members to earn a fair rate of pay;
(iv) remedying the effects of past discrimination
on the basis of sex and ensuring that in the future
workers are afforded equal protection on the basis of
sex; and
(v) ensuring equal protection pursuant to
Congress's power to enforce the 5th and 14th
Amendments.
(5) The Department of Labor and the Equal Employment
Opportunity Commission have important and unique
responsibilities to help ensure that women receive equal pay
for equal work.
(6) The Department of Labor is responsible for--
(A) collecting and making publicly available
information about women's pay;
(B) ensuring that companies receiving Federal
contracts comply with anti-discrimination affirmative
action requirements of Executive Order 11246 (relating
to equal employment opportunity);
(C) disseminating information about women's rights
in the workplace;
(D) helping women who have been victims of pay
discrimination obtain a remedy; and
(E) being proactive in investigating and
prosecuting equal pay violations, especially systemic
violations, and in enforcing all of its mandates.
(7) The Equal Employment Opportunity Commission is the
primary enforcement agency for claims made under the provisions
added by the Equal Pay Act of 1963, and issues regulations and
guidance on appropriate interpretations of the law.
(8) With a stronger commitment by the Department of Labor
and the Equal Employment Opportunity Commission to their
responsibilities, increased information about the provisions
added by the Equal Pay Act of 1963, wage data, and more
effective remedies, women will be better able to recognize and
enforce their rights.
(9) Certain employers have already made great strides in
eradicating unfair pay disparities in the workplace and their
achievements should be recognized.
SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.
(a) Bona Fide Factor Defense and Modification of Same Establishment
Requirement.--Section 6(d)(1) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d)(1)) is amended--
(1) by striking ``No employer having'' and inserting ``(A)
No employer having'';
(2) by striking ``any other factor other than sex'' and
inserting ``a bona fide factor other than sex, such as
education, training, or experience''; and
(3) by inserting at the end the following:
``(B) The bona fide factor defense described in subparagraph
(A)(iv) shall apply only if the employer demonstrates that such factor
(i) is not based upon or derived from a sex-based differential in
compensation; (ii) is job-related with respect to the position in
question; and (iii) is consistent with business necessity. Such defense
shall not apply where the employee demonstrates that an alternative
employment practice exists that would serve the same business purpose
without producing such differential and that the employer has refused
to adopt such alternative practice.
``(C) For purposes of subparagraph (A), employees shall be deemed
to work in the same establishment if the employees work for the same
employer at workplaces located in the same county or similar political
subdivision of a State. The preceding sentence shall not be construed
as limiting broader applications of the term `establishment' consistent
with rules prescribed or guidance issued by the Equal Opportunity
Employment Commission.''.
(b) Nonretaliation Provision.--Section 15 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 215) is amended--
(1) in subsection (a)(3), by striking ``employee has
filed'' and all that follows through ``committee;'' and
inserting ``employee--
``(A) has made a charge or filed any complaint or
instituted or caused to be instituted any
investigation, proceeding, hearing, or action under or
related to this Act, including an investigation
conducted by the employer, or has testified or is
planning to testify or has assisted or participated in
any manner in any such investigation, proceeding,
hearing, or action, or has served or is planning to
serve on an industry committee; or
``(B) has inquired about, discussed, or disclosed
the wages of the employee or another employee;''; and
(2) by adding at the end the following:
``(c) Subsection (a)(3)(B) shall not apply to instances in which an
employee who has access to the wage information of other employees as a
part of such employee's essential job functions discloses the wages of
such other employees to an individual who does not otherwise have
access to such information, unless such disclosure is in response to a
charge or complaint or in furtherance of an investigation, proceeding,
hearing, or action under section 6(d), including an investigation
conducted by the employer. Nothing in this subsection shall be
construed to limit the rights of an employee provided under any other
provision of law.''.
(c) Enhanced Penalties.--Section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following:
``Any employer who violates section 6(d) shall additionally be
liable for such compensatory damages, or, where the employee
demonstrates that the employer acted with malice or reckless
indifference, punitive damages as may be appropriate, except
that the United States shall not be liable for punitive
damages.'';
(2) in the sentence beginning ``An action to'', by striking
``either of the preceding sentences'' and inserting ``any of
the preceding sentences of this subsection'';
(3) in the sentence beginning ``No employees shall'', by
striking ``No employees'' and inserting ``Except with respect
to class actions brought to enforce section 6(d), no
employee'';
(4) by inserting after the sentence referred to in
paragraph (3), the following: ``Notwithstanding any other
provision of Federal law, any action brought to enforce section
6(d) may be maintained as a class action as provided by the
Federal Rules of Civil Procedure.''; and
(5) in the sentence beginning ``The court in''--
(A) by striking ``in such action'' and inserting
``in any action brought to recover the liability
prescribed in any of the preceding sentences of this
subsection''; and
(B) by inserting before the period the following:
``, including expert fees''.
(d) Action by Secretary.--Section 16(c) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation
of section 6(d), additional compensatory or punitive
damages, as described in subsection (b),'' before ``and
the agreement''; and
(B) by inserting before the period the following:
``, or such compensatory or punitive damages, as
appropriate'';
(2) in the second sentence, by inserting before the period
the following: ``and, in the case of a violation of section
6(d), additional compensatory or punitive damages, as described
in subsection (b)'';
(3) in the third sentence, by striking ``the first
sentence'' and inserting ``the first or second sentence''; and
(4) in the last sentence--
(A) by striking ``commenced in the case'' and
inserting ``commenced--
``(1) in the case'';
(B) by striking the period and inserting ``; or'';
and
(C) by adding at the end the following:
``(2) in the case of a class action brought to enforce
section 6(d), on the date on which the individual becomes a
party plaintiff to the class action.''.
SEC. 4. TRAINING.
The Equal Employment Opportunity Commission and the Office of
Federal Contract Compliance Programs, subject to the availability of
funds appropriated under section 10, shall provide training to
Commission employees and affected individuals and entities on matters
involving discrimination in the payment of wages.
SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND WOMEN.
(a) Program Authorized.--
(1) In general.--The Secretary of Labor, after consultation
with the Secretary of Education, is authorized to establish and
carry out a grant program.
(2) Grants.--In carrying out the program, the Secretary of
Labor may make grants on a competitive basis to eligible
entities, to carry out negotiation skills training programs for
girls and women.
(3) Eligible entities.--To be eligible to receive a grant
under this subsection, an entity shall be a public agency, such
as a State, a local government in a metropolitan statistical
area (as defined by the Office of Management and Budget), a
State educational agency, or a local educational agency, a
private nonprofit organization, or a community-based
organization.
(4) Application.--To be eligible to receive a grant under
this subsection, an entity shall submit an application to the
Secretary of Labor at such time, in such manner, and containing
such information as the Secretary of Labor may require.
(5) Use of funds.--An entity that receives a grant under
this subsection shall use the funds made available through the
grant to carry out an effective negotiation skills training
program that empowers girls and women. The training provided
through the program shall help girls and women strengthen their
negotiation skills to allow the girls and women to obtain
higher salaries and rates of compensation that are equal to
those paid to similarly situated male employees.
(b) Incorporating Training Into Existing Programs.--The Secretary
of Labor and the Secretary of Education shall issue regulations or
policy guidance that provides for integrating the negotiation skills
training, to the extent practicable, into programs authorized under--
(1) in the case of the Secretary of Education, the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301
et seq.), the Carl D. Perkins Career and Technical Education
Act of 2006 (20 U.S.C. 2301 et seq.), the Higher Education Act
of 1965 (20 U.S.C. 1001 et seq.), and other programs carried
out by the Department of Education that the Secretary of
Education determines to be appropriate; and
(2) in the case of the Secretary of Labor, the Workforce
Investment Act of 1998 (29 U.S.C. 2801 et seq.), and other
programs carried out by the Department of Labor that the
Secretary of Labor determines to be appropriate.
(c) Report.--Not later than 1 year after the date of enactment of
this Act, and annually thereafter, the Secretary of Labor and the
Secretary of Education shall prepare and submit to Congress a report
describing the activities conducted under this section and evaluating
the effectiveness of such activities in achieving the purposes of this
Act.
SEC. 6. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide
information to employers, labor organizations, and the general public
concerning the means available to eliminate pay disparities between men
and women, including--
(1) conducting and promoting research to develop the means
to correct expeditiously the conditions leading to the pay
disparities;
(2) publishing and otherwise making available to employers,
labor organizations, professional associations, educational
institutions, the media, and the general public the findings
resulting from studies and other materials, relating to
eliminating the pay disparities;
(3) sponsoring and assisting State and community
informational and educational programs;
(4) providing information to employers, labor
organizations, professional associations, and other interested
persons on the means of eliminating the pay disparities;
(5) recognizing and promoting the achievements of
employers, labor organizations, and professional associations
that have worked to eliminate the pay disparities; and
(6) convening a national summit to discuss, and consider
approaches for rectifying, the pay disparities.
SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE
WORKPLACE.
(a) In General.--There is established the Secretary of Labor's
National Award for Pay Equity in the Workplace, which shall be awarded,
as appropriate, to encourage proactive efforts to comply with section
6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)).
(b) Criteria for Qualification.--The Secretary of Labor shall set
criteria for receipt of the award, including a requirement that an
employer has made substantial effort to eliminate pay disparities
between men and women, and deserves special recognition as a
consequence of such effort. The Secretary shall establish procedures
for the application for and presentation of the award.
(c) Employer.--In this section, the term ``employer'' includes--
(1)(A) a corporation, including a nonprofit corporation;
(B) a partnership;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any
of subparagraphs (A) through (D);
(2) an entity carrying out an education referral program, a
training program, such as an apprenticeship or management
training program, or a similar program; and
(3) an entity carrying out a joint program, formed by a
combination of any entities described in paragraph (1) or (2).
SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION.
Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is
amended by adding at the end the following:
``(f)(1) Not later than 18 months after the date of enactment of
this subsection, the Commission shall--
``(A) complete a survey of the data that is currently
available to the Federal Government relating to employee pay
information for use in the enforcement of Federal laws
prohibiting pay discrimination and, in consultation with other
relevant Federal agencies, identify additional data collections
that will enhance the enforcement of such laws; and
``(B) based on the results of the survey and consultations
under subparagraph (A), issue regulations to provide for the
collection of pay information data from employers as described
by the sex, race, and national origin of employees.
``(2) In implementing paragraph (1), the Commission shall have as
its primary consideration the most effective and efficient means for
enhancing the enforcement of Federal laws prohibiting pay
discrimination. For this purpose, the Commission shall consider factors
including the imposition of burdens on employers, the frequency of
required data collection reports (including which employers should be
required to prepare reports), appropriate protections for maintaining
data confidentiality, and the most effective format for the data
collection reports.''.
SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA
COLLECTION.
(a) Bureau of Labor Statistics Data Collection.--The Commissioner
of Labor Statistics shall continue to collect data on women workers in
the Current Employment Statistics survey.
(b) Office of Federal Contract Compliance Programs Initiatives.--
The Director of the Office of Federal Contract Compliance Programs
shall ensure that employees of the Office--
(1)(A) shall use the full range of investigatory tools at
the Office's disposal, including pay grade methodology;
(B) in considering evidence of possible compensation
discrimination--
(i) shall not limit its consideration to a small
number of types of evidence; and
(ii) shall not limit its evaluation of the evidence
to a small number of methods of evaluating the
evidence; and
(C) shall not require a multiple regression analysis or
anecdotal evidence for a compensation discrimination case;
(2) for purposes of its investigative, compliance, and
enforcement activities, shall define ``similarly situated
employees'' in a way that is consistent with and not more
stringent than the definition provided in item 1 of subsection
A of section 10-III of the Equal Employment Opportunity
Commission Compliance Manual (2000), and shall consider only
factors that the Office's investigation reveals were used in
making compensation decisions; and
(3) shall reinstate the Equal Opportunity Survey, as
required by section 60-2.18 of title 41, Code of Federal
Regulations (as in effect on September 7, 2006), designating
not less than half of all nonconstruction contractor
establishments each year to prepare and file such survey, and
shall review and utilize the responses to such survey to
identify contractor establishments for further evaluation and
for other enforcement purposes as appropriate.
(c) Department of Labor Distribution of Wage Discrimination
Information.--The Secretary of Labor shall make readily available (in
print, on the Department of Labor website, and through any other forum
that the Department may use to distribute compensation discrimination
information), accurate information on compensation discrimination,
including statistics, explanations of employee rights, historical
analyses of such discrimination, instructions for employers on
compliance, and any other information that will assist the public in
understanding and addressing such discrimination.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations.--There is authorized to be
appropriated $15,000,000 to carry out this Act.
(b) Prohibition on Earmarks.--None of the funds appropriated
pursuant to subsection (a) for purposes of the grant program in section
5 of this Act may be used for a congressional earmark as defined in
clause 9(e) of rule XXI of the Rules of the House of Representatives.
SEC. 11. SMALL BUSINESS ASSISTANCE.
(a) Effective Date.--This Act and the amendments made by this Act
shall take effect on the date that is 6 months after the date of
enactment of this Act.
(b) Technical Assistance Materials.--The Secretary of Labor and the
Commissioner of the Equal Employment Opportunity Commission shall
jointly develop technical assistance material to assist small
businesses in complying with the requirements of this Act and the
amendments made by this Act.
(c) Small Businesses.--A small business shall be exempt from the
provisions of this Act to the same extent that such business is exempt
from the requirements of the Fair Labor Standards Act of 1938 pursuant
to clauses (i) and (ii) of section 3(s)(1)(A) of such Act (29 U.S.C.
203(s)(1)(A)).
SEC. 12. RULE OF CONSTRUCTION.
Nothing in this Act, or in any amendment made by this Act, shall
affect the obligation of employers and employees to fully comply with
all applicable immigration laws, including any penalties, fines, or
other sanctions.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S2396)
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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