II
Calendar No. 134
118THCONGRESS
1
STSESSION 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
MARCH9, 2023
Mrs. M
URRAY(for herself, Mr. SCHUMER, Mr. SANDERS, Ms. CORTEZMASTO,
Mr. R
EED, Mr. LUJA´N, Mr. MERKLEY, Ms. HIRONO, Mr. PADILLA, Ms.
C
ANTWELL, Mr. SCHATZ, Mr. FETTERMAN, Mr. CASEY, Mr. MURPHY,
Mr. M
ARKEY, Mr. BROWN, Mr. HICKENLOOPER, Mr. KING, Mr. KAINE,
Ms. S
INEMA, Mr. WELCH, Mr. BOOKER, Mrs. FEINSTEIN, Ms. STABE-
NOW, Ms. WARREN, Mr. MENENDEZ, Mr. CARPER, Mr. WARNER, Ms.
B
ALDWIN, Ms. SMITH, Ms. KLOBUCHAR, Mr. BLUMENTHAL, Mrs. GILLI-
BRAND, Mr. VANHOLLEN, Mr. WARNOCK, Ms. DUCKWORTH, Mrs. SHA-
HEEN, Mr. HEINRICH, Mr. DURBIN, Mr. WHITEHOUSE, Mr. COONS, Mr.
K
ELLY, 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
J
ULY18, 2023
Reported by Mr. S
ANDERS, 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.
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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
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(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
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(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
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(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
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(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) B
ONAFIDEFACTORDEFENSE ANDMODIFICA-23
TION OFSAMEESTABLISHMENTREQUIREMENT.—Section 24
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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
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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) N
ONRETALIATIONPROVISION.—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
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(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) E
NHANCEDPENALTIES.—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
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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
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(B) by inserting before the period the fol-1
lowing: ‘‘, including expert fees’’. 2
(d) A
CTION BYSECRETARY.—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
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(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
discrimination in the payment of wages. 13
SEC. 5. NEGOTIATION SKILLS TRAINING. 14
(a) P
ROGRAMAUTHORIZED.— 15
(1) I
N GENERAL.—The Secretary of Labor, 16
after consultation with the Secretary of Education, 17
is authorized to establish and carry out a grant pro-18
gram. 19
(2) G
RANTS.—In carrying out the program, the 20
Secretary of Labor may make grants on a competi-21
tive basis to eligible entities to carry out negotiation 22
skills training programs for the purposes of address-23
ing pay disparities, including through outreach to 24
women and girls. 25
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(3) ELIGIBLE ENTITIES.—To be eligible to re-1
ceive a grant under this subsection, an entity shall 2
be a public agency, such as a State, a local govern-3
ment in a metropolitan statistical area (as defined 4
by the Office of Management and Budget), a State 5
educational agency, or a local educational agency, a 6
private nonprofit organization, or a community- 7
based organization. 8
(4) A
PPLICATION.—To be eligible to receive a 9
grant under this subsection, an entity shall submit 10
an application to the Secretary of Labor at such 11
time, in such manner, and containing such informa-12
tion as the Secretary of Labor may require. 13
(5) U
SE OF FUNDS.—An entity that receives a 14
grant under this subsection shall use the funds made 15
available through the grant to carry out an effective 16
negotiation skills training program for the purposes 17
described in paragraph (2). 18
(b) I
NCORPORATINGTRAININGINTOEXISTINGPRO-19
GRAMS.—The Secretary of Labor and the Secretary of 20
Education shall issue regulations or policy guidance that 21
provides for integrating the negotiation skills training, to 22
the extent practicable, into programs authorized under— 23
(1) in the case of the Secretary of Education, 24
the Elementary and Secondary Education Act of 25
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1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 1
Career and Technical Education Act of 2006 (20 2
U.S.C. 2301 et seq.), the Higher Education Act of 3
1965 (20 U.S.C. 1001 et seq.), and other programs 4
carried out by the Department of Education that the 5
Secretary of Education determines to be appro-6
priate; and 7
(2) in the case of the Secretary of Labor, the 8
Workforce Innovation and Opportunity Act (29 9
U.S.C. 3101 et seq.), and other programs carried 10
out by the Department of Labor that the Secretary 11
of Labor determines to be appropriate. 12
(c) R
EPORT.—Not later than 18 months after the 13
date of enactment of this Act, and annually thereafter, 14
the Secretary of Labor, in consultation with the Secretary 15
of Education, shall prepare and submit to Congress a re-16
port describing the activities conducted under this section 17
and evaluating the effectiveness of such activities in 18
achieving the purposes of this section. 19
SEC. 6. RESEARCH, EDUCATION, AND OUTREACH. 20
(a) I
NGENERAL.—Not later than 18 months after 21
the date of enactment of this Act, and periodically there-22
after, the Secretary of Labor shall conduct studies and 23
provide information to employers, labor organizations, and 24
the general public concerning the means available to elimi-25
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nate pay disparities between men and women (including 1
women who are Asian American, Black or African Amer-2
ican, Hispanic American or Latino, Native American or 3
Alaska Native, Native Hawaiian or Pacific Islander, and 4
White American), including— 5
(1) conducting and promoting research to de-6
velop the means to correct expeditiously the condi-7
tions leading to the pay disparities, with specific at-8
tention paid to women and girls from historically 9
underrepresented and minority groups; 10
(2) publishing and otherwise making available 11
to employers, labor organizations, professional asso-12
ciations, educational institutions, the media, and the 13
general public the findings resulting from studies 14
and other materials, relating to eliminating the pay 15
disparities; 16
(3) sponsoring and assisting State, local, and 17
community informational and educational programs; 18
(4) providing information to employers, labor 19
organizations, professional associations, and other 20
interested persons on the means of eliminating the 21
pay disparities; and 22
(5) recognizing and promoting the achievements 23
of employers, labor organizations, and professional 24
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associations that have worked to eliminate the pay 1
disparities. 2
(b) R
EPORT ONGENDERPAYGAP INTEENAGE 3
L
ABORFORCE.— 4
(1) R
EPORT REQUIRED .—Not later than one 5
year after the date of the enactment of this Act, the 6
Secretary of Labor, acting through the Director of 7
the Women’s Bureau and in coordination with the 8
Commissioner of Labor Statistics, shall— 9
(A) submit to Congress a report on the 10
gender pay gap in the teenage labor force; and 11
(B) make the report available on a publicly 12
accessible website of the Department of Labor. 13
(2) E
LEMENTS.—The report under subsection 14
(a) shall include the following: 15
(A) An examination of trends and potential 16
solutions relating to the teenage gender pay 17
gap. 18
(B) An examination of how the teenage 19
gender pay gap potentially translates into 20
greater wage gaps in the overall labor force. 21
(C) An examination of overall lifetime 22
earnings and losses for informal and formal 23
jobs for women, including women of color. 24
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(D) An examination of the teenage gender 1
pay gap, including a comparison of the average 2
amount earned by males and females, respec-3
tively, in informal jobs, such as babysitting and 4
other freelance jobs, as well as formal jobs, 5
such as retail, restaurant, and customer service. 6
(E) A comparison of— 7
(i) the types of tasks typically per-8
formed by women from the teenage years 9
through adulthood within certain informal 10
jobs, such as babysitting and other free-11
lance jobs, and formal jobs, such as retail, 12
restaurant, and customer service; and 13
(ii) the types of tasks performed by 14
younger males in such positions. 15
(F) Interviews and surveys with workers 16
and employers relating to early gender-based 17
pay discrepancies. 18
(G) Recommendations for— 19
(i) addressing pay inequality for 20
women from the teenage years through 21
adulthood, including such women of color; 22
(ii) addressing any disadvantages ex-23
perienced by young women with respect to 24
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work experience and professional develop-1
ment; 2
(iii) the development of standards and 3
best practices for workers and employees 4
to ensure better pay for young women and 5
the prevention of early inequalities in the 6
workplace; and 7
(iv) expanding awareness for teenage 8
girls on pay rates and employment rights 9
in order to reduce greater inequalities in 10
the overall labor force. 11
SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR 12
PAY EQUITY IN THE WORKPLACE. 13
(a) I
NGENERAL.—There is established the Secretary 14
of Labor’s National Award for Pay Equity in the Work-15
place, which shall be awarded, on an annual basis, to an 16
employer to encourage proactive efforts to comply with 17
section 6(d) of the Fair Labor Standards Act of 1938 (29 18
U.S.C. 206(d)), as amended by this Act. 19
(b) C
RITERIA FORQUALIFICATION.—The Secretary 20
of Labor shall set criteria for receipt of the award, includ-21
ing a requirement that an employer has made substantial 22
effort to eliminate pay disparities between men and 23
women, and deserves special recognition as a consequence 24
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of such effort. The Secretary shall establish procedures for 1
the application and presentation of the award. 2
(c) B
USINESS.—In this section, the term ‘‘employer’’ 3
includes— 4
(1)(A) a corporation, including a nonprofit cor-5
poration; 6
(B) a partnership; 7
(C) a professional association; 8
(D) a labor organization; and 9
(E) a business entity similar to an entity de-10
scribed in any of subparagraphs (A) through (D); 11
(2) an entity carrying out an education referral 12
program, a training program, such as an apprentice-13
ship or management training program, or a similar 14
program; and 15
(3) an entity carrying out a joint program, 16
formed by a combination of any entities described in 17
paragraph (1) or (2). 18
SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL 19
EMPLOYMENT OPPORTUNITY COMMISSION. 20
Section 709 of the Civil Rights Act of 1964 (42 21
U.S.C. 2000e–8) is amended by adding at the end the fol-22
lowing: 23
‘‘(f)(1) Not later than 18 months after the date of 24
enactment of this subsection, the Commission shall pro-25
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vide for the collection from employers of compensation 1
data and other employment-related data (including hiring, 2
termination, and promotion data) disaggregated by the 3
sex, race, and ethnic identity of employees. 4
‘‘(2) In carrying out paragraph (1), the Commission 5
shall have as its primary consideration the most effective 6
and efficient means for enhancing the enforcement of Fed-7
eral laws prohibiting pay discrimination. For this purpose, 8
the Commission shall consider factors including the impo-9
sition of burdens on employers, the frequency of required 10
reports (including the size of employers required to pre-11
pare reports), appropriate protections for maintaining 12
data confidentiality, and the most effective format to re-13
port such data. 14
‘‘(3)(A) For each 12-month reporting period for an 15
employer, the compensation data collected under para-16
graph (1) shall include, for each range of taxable com-17
pensation described in subparagraph (B), disaggregated 18
by the categories described in subparagraph (E)— 19
‘‘(i) the number of employees of the employer 20
who earn taxable compensation in an amount that 21
falls within such taxable compensation range; and 22
‘‘(ii) the total number of hours worked by such 23
employees. 24
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‘‘(B) Subject to adjustment under subparagraph (C), 1
the taxable compensation ranges described in this sub-2
paragraph are as follows: 3
‘‘(i) Not more than $19,239. 4
‘‘(ii) Not less than $19,240 and not more than 5
$24,439. 6
‘‘(iii) Not less than $24,440 and not more than 7
$30,679. 8
‘‘(iv) Not less than $30,680 and not more than 9
$38,999. 10
‘‘(v) Not less than $39,000 and not more than 11
$49,919. 12
‘‘(vi) Not less than $49,920 and not more than 13
$62,919. 14
‘‘(vii) Not less than $62,920 and not more than 15
$80,079. 16
‘‘(viii) Not less than $80,080 and not more 17
than $101,919. 18
‘‘(ix) Not less than $101,920 and not more 19
than $128,959. 20
‘‘(x) Not less than $128,960 and not more than 21
$163,799. 22
‘‘(xi) Not less than $163,800 and not more 23
than $207,999. 24
‘‘(xii) Not less than $208,000. 25
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•S 728 RS
‘‘(C) The Commission may adjust the taxable com-1
pensation ranges under subparagraph (B)— 2
‘‘(i) if the Commission determines that such ad-3
justment is necessary to enhance enforcement of 4
Federal laws prohibiting pay discrimination; or 5
‘‘(ii) for inflation, in consultation with the Bu-6
reau of Labor Statistics. 7
‘‘(D) In collecting data described in subparagraph 8
(A)(ii), the Commission shall provide that, with respect 9
to an employee who the employer is not required to com-10
pensate for overtime employment under section 7 of the 11
Fair Labor Standards Act of 1938 (29 U.S.C. 207), an 12
employer may report— 13
‘‘(i) in the case of a full-time employee, that 14
such employee works 40 hours per week, and in the 15
case of a part-time employee, that such employee 16
works 20 hours per week; or 17
‘‘(ii) the actual number of hours worked by 18
such employee. 19
‘‘(E) The categories described in this subparagraph 20
shall be determined by the Commission and shall in-21
clude— 22
‘‘(i) race; 23
‘‘(ii) ethnic identity; 24
‘‘(iii) sex; and 25
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‘‘(iv) job categories, including the job categories 1
described in the instructions for the Equal Employ-2
ment Opportunity Employer Information Report 3
EEO–1, as in effect on the date of the enactment 4
of this subsection. 5
‘‘(F) The Commission shall use the compensation 6
data collected under paragraph (1)— 7
‘‘(i) to enhance— 8
‘‘(I) the investigation of charges filed 9
under section 706 or section 6(d) of the Fair 10
Labor Standards Act of 1938 (29 U.S.C. 11
206(d)); and 12
‘‘(II) the allocation of resources to inves-13
tigate such charges; and 14
‘‘(ii) for any other purpose that the Commission 15
determines appropriate. 16
‘‘(G) The Commission shall annually make publicly 17
available aggregate compensation data collected under 18
paragraph (1) for the categories described in subpara-19
graph (E), disaggregated by industry, occupation, and 20
core based statistical area (as defined by the Office of 21
Management and Budget). 22
‘‘(4) The compensation data under paragraph (1) 23
shall be collected from each employer that— 24
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•S 728 RS
‘‘(A) is a private employer that has 100 or 1
more employees, including such an employer that is 2
a contractor with the Federal Government, or a sub-3
contractor at any tier thereof; or 4
‘‘(B) the Commission determines appropriate.’’. 5
SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND 6
PAY EQUITY DATA COLLECTION. 7
(a) B
UREAU OFLABORSTATISTICSDATACOLLEC-8
TION.—The Commissioner of Labor Statistics shall con-9
tinue to collect data on women workers in the Current 10
Employment Statistics survey. 11
(b) O
FFICE OFFEDERALCONTRACTCOMPLIANCE 12
P
ROGRAMSINITIATIVES.—The Director of the Office of 13
Federal Contract Compliance Programs shall ensure that 14
employees of the Office— 15
(1)(A) shall use the full range of investigatory 16
tools at the Office’s disposal, including pay grade 17
methodology; 18
(B) in considering evidence of possible com-19
pensation discrimination— 20
(i) shall not limit its consideration to a 21
small number of types of evidence; and 22
(ii) shall not limit its evaluation of the evi-23
dence to a small number of methods of evalu-24
ating the evidence; and 25
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•S 728 RS
(C) shall not require a multiple regression anal-1
ysis or anecdotal evidence for a compensation dis-2
crimination case; 3
(2) for purposes of its investigative, compliance, 4
and enforcement activities, shall define ‘‘similarly 5
situated employees’’ in a way that is consistent with 6
and not more stringent than the definition provided 7
in item 1 of subsection A of section 10–III of the 8
Equal Employment Opportunity Commission Com-9
pliance Manual (2000), and shall consider only fac-10
tors that the Office’s investigation reveals were used 11
in making compensation decisions; and 12
(3) shall implement a survey to collect com-13
pensation data and other employment-related data 14
(including hiring, termination, and promotion data) 15
and designate not less than half of all nonconstruc-16
tion contractor establishments each year to prepare 17
and file such survey, and shall review and utilize the 18
responses to such survey to identify contractor es-19
tablishments for further evaluation and for other en-20
forcement purposes as appropriate. 21
(c) D
EPARTMENT OF LABORDISTRIBUTION OF 22
W
AGEDISCRIMINATIONINFORMATION.—The Secretary of 23
Labor shall make readily available (in print, on the De-24
partment of Labor website, and through any other forum 25
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•S 728 RS
that the Department may use to distribute compensation 1
discrimination information), accurate information on com-2
pensation discrimination, including statistics, explanations 3
of employee rights, historical analyses of such discrimina-4
tion, instructions for employers on compliance, and any 5
other information that will assist the public in under-6
standing and addressing such discrimination. 7
SEC. 10. PROHIBITIONS RELATING TO PROSPECTIVE EM-8
PLOYEES’ SALARY AND BENEFIT HISTORY. 9
(a) I
NGENERAL.—The Fair Labor Standards Act of 10
1938 (29 U.S.C. 201 et seq.) is amended by inserting 11
after section 7 the following new section: 12
‘‘SEC. 8. REQUIREMENTS AND PROHIBITIONS RELATING TO 13
WAGE, SALARY, AND BENEFIT HISTORY. 14
‘‘(a) I
NGENERAL.—It shall be an unlawful practice 15
for an employer to— 16
‘‘(1) rely on the wage history of a prospective 17
employee in considering the prospective employee for 18
employment, including requiring that a prospective 19
employee’s prior wages satisfy minimum or max-20
imum criteria as a condition of being considered for 21
employment; 22
‘‘(2) rely on the wage history of a prospective 23
employee in determining the wages for such prospec-24
tive employee, except that an employer may rely on 25
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•S 728 RS
wage history if it is voluntarily provided by a pro-1
spective employee, after the employer makes an offer 2
of employment with an offer of compensation to the 3
prospective employee, to support a wage higher than 4
the wage offered by the employer; 5
‘‘(3) seek from a prospective employee or any 6
current or former employer the wage history of the 7
prospective employee, except that an employer may 8
seek to confirm prior wage information only after an 9
offer of employment with compensation has been 10
made to the prospective employee and the prospec-11
tive employee responds to the offer by providing 12
prior wage information to support a wage higher 13
than that offered by the employer; or 14
‘‘(4) discharge or in any other manner retaliate 15
against any employee or prospective employee be-16
cause the employee or prospective employee— 17
‘‘(A) opposed any act or practice made un-18
lawful by this section; or 19
‘‘(B) took an action for which discrimina-20
tion is forbidden under section 15(a)(3). 21
‘‘(b) D
EFINITION.—In this section, the term ‘wage 22
history’ means the wages paid to the prospective employee 23
by the prospective employee’s current employer or previous 24
employer.’’. 25
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(b) PENALTIES.—Section 16 of such Act (29 U.S.C. 1
216) is amended by adding at the end the following new 2
subsection: 3
‘‘(f)(1) Any person who violates the provisions of sec-4
tion 8 shall— 5
‘‘(A) be subject to a civil penalty of $5,000 for 6
a first offense, increased by an additional $1,000 for 7
each subsequent offense, not to exceed $10,000; and 8
‘‘(B) be liable to each employee or prospective 9
employee who was the subject of the violation for 10
special damages not to exceed $10,000 plus attor-11
neys’ fees, and shall be subject to such injunctive re-12
lief as may be appropriate. 13
‘‘(2) An action to recover the liability described in 14
paragraph (1)(B) may be maintained against any em-15
ployer (including a public agency) in any Federal or State 16
court of competent jurisdiction by any one or more em-17
ployees or prospective employees for and on behalf of— 18
‘‘(A) the employees or prospective employees; 19
and 20
‘‘(B) other employees or prospective employees 21
similarly situated.’’. 22
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SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 1
(a) A
UTHORIZATION OF APPROPRIATIONS.—There 2
are authorized to be appropriated such sums as may be 3
necessary to carry out this Act. 4
(b) P
ROHIBITION ONEARMARKS.—None of the funds 5
appropriated pursuant to subsection (a) for purposes of 6
the grant program in section 5 of this Act may be used 7
for a congressional earmark as defined in clause 9(e) of 8
rule XXI of the Rules of the House of Representatives. 9
SEC. 12. SMALL BUSINESS ASSISTANCE. 10
(a) E
FFECTIVEDATE.—This Act and the amend-11
ments made by this Act shall take effect on the date that 12
is 6 months after the date of enactment of this Act. 13
(b) T
ECHNICALASSISTANCEMATERIALS.—The Sec-14
retary of Labor and the Commissioner of the Equal Em-15
ployment Opportunity Commission shall jointly develop 16
technical assistance material to assist small enterprises in 17
complying with the requirements of this Act and the 18
amendments made by this Act. 19
(c) S
MALLBUSINESSES.—A small enterprise shall be 20
exempt from the provisions of this Act, and the amend-21
ments made by this Act, to the same extent that such en-22
terprise is exempt from the requirements of the Fair 23
Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) pur-24
suant to clauses (i) and (ii) of section 3(s)(1)(A) of such 25
Act (29 U.S.C. 203(s)(1)(A)). 26
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SEC. 13. RULE OF CONSTRUCTION. 1
Nothing in this Act, or in any amendments made by 2
this Act, shall affect the obligation of employers and em-3
ployees to fully comply with all applicable immigration 4
laws, including being subject to any penalties, fines, or 5
other sanctions. 6
SEC. 14. SEVERABILITY. 7
If any provision of this Act, an amendment made by 8
this Act, or the application of that provision or amend-9
ment to particular persons or circumstances is held invalid 10
or found to be unconstitutional, the remainder of this Act, 11
the amendments made by this Act, or the application of 12
that provision to other persons or circumstances shall not 13
be affected. 14
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134
118
TH
CONGRESS
1
ST
S
ESSION
S. 728 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.
J
ULY
18, 2023
Reported without amendment
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