[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2491 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 2491
To amend the Fair Labor Standards Act of 1938 to enhance provisions
related to wage discrimination, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 13, 2021
Ms. Stefanik (for herself, Ms. Foxx, Mrs. Miller-Meeks, Mr. McKinley,
Mr. Latta, Mr. Bucshon, Mr. Diaz-Balart, Mr. Bost, Mr. Bacon, Mr.
Thompson of Pennsylvania, Mrs. Walorski, Mr. Garbarino, Mr. Stauber,
Mr. Zeldin, Mrs. Rodgers of Washington, Mr. Austin Scott of Georgia,
Mr. Burgess, Mr. Newhouse, Mr. Mann, Mr. Wittman, Mr. Kinzinger, Mr.
Owens, Ms. Malliotakis, Mr. Cole, Mr. Graves of Louisiana, Mr. Womack,
Ms. Granger, Ms. Herrera Beutler, Mr. Gonzalez of Ohio, Mr. Moore of
Utah, Mr. Meuser, Mr. Joyce of Ohio, Mr. Cawthorn, Mr. Fortenberry, Mr.
Guthrie, Mrs. Spartz, Mr. Allen, Mr. Curtis, Mr. Rodney Davis of
Illinois, and Mr. Amodei) introduced the following bill; which was
referred to the Committee on Education and Labor
_______________________________________________________________________
A BILL
To amend the Fair Labor Standards Act of 1938 to enhance provisions
related to wage discrimination, 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 referred to as the ``Wage Equity Act of 2021''.
SEC. 2. FINDINGS.
(1) In 1963, Congress passed on a bipartisan basis the
Equal Pay Act of 1963 to prohibit discrimination on account of
sex in the payment of wages for equal work performed by
employees for employers engaged in commerce or in the
production of goods for commerce.
(2) Following the passage of such Act, in 1964, Congress
passed on a bipartisan basis the Civil Rights Act of 1964.
Since the passage of both the Equal Pay Act of 1963 and the
Civil Rights Act of 1964, women have made significant strides,
both in the workforce and in their educational pursuits.
(3) Prior to the COVID-19 pandemic, there were over
77,000,000 women in the workforce, the most in American
history. Of the 2,000,000 jobs created in 2019, 53 percent went
to women. This follows a trend that has been rising for some
time. Women are graduating from college at a higher rate than
their male counter parts, making up 61 percent of all college
degrees conferred in 2018. Additionally, according to a recent
survey of working women, more than half are their family's
primary breadwinner.
(4) The COVID-19 pandemic has had a significant impact on
working women, resulting in over 2 million women leaving the
workforce since February 2020.
(5) Despite these advances there is still concern among the
American public that gender-based wage discrimination has not
been eliminated.
SEC. 3. CLARIFYING SEX-BASED DISCRIMINATION PROHIBITION.
Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(d)(1)) is amended by inserting ``bona fide business-related'' after
``any other''.
SEC. 4. JOB AND WAGE ANALYSIS.
Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216)
is amended by adding at the end the following:
``(f)(1) An employer shall not be liable in an action brought
against the employer for a violation of section 6(d) if--
``(A) during the period beginning on the date that is 3 years
before the date on which the action is brought and ending on the date
that is 1 day before the date on which the action is brought, such
employer completes a job and wage analysis audit to determine whether
there are differentials in wage rates among such employees that may
violate section 6(d);
``(B) such employer takes reasonable steps to remedy any such
differentials;
``(C) such job and wage analysis audit is conducted and such
reasonable steps are taken in good faith to investigate whether any
such differentials exist; and
``(D) such audit is reasonable in detail and scope with respect to
the size of the employer.
``(2) A job and wage analysis audit under this section and remedial
action taken in response to the findings of such audit--
``(A) may only be admissible by the employer for the
purposes of showing--
``(i) such audit was conducted; and
``(ii) such reasonable steps were taken; and
``(B) shall not be discoverable or admissible for any other
purpose in any claim against the employer.
``(3) An employer who has not completed a job and wage analysis
audit under this subsection shall not be subject to a negative or
adverse inference as a result of not having completed such audit.
``(4) An employer who has completed a job and wage analysis audit
that does not meet the requirements of subparagraph (D) of paragraph
(1) but otherwise meets the requirements of such paragraph shall not be
liable for liquidated damages under section 16(b).
``(5) In this section--
``(A) the term `job and wage analysis audit' means an audit
conducted by the employer for the purpose of identifying wage
disparities among employees on the basis of sex; and
``(B) the term `reasonable steps', with respect to
differentials in wages among employees that may violate section
6(d), means steps that are reasonable to address such
differentials taking into account--
``(i) the amount of time that has passed since the
date on which the audit was initiated;
``(ii) the nature and degree of progress resulting
from such reasonable steps toward compliance with
section 6(d) compared to the number of employees with
respect to whom a violation may exist and the amount of
the wage rate differentials among such employees; and
``(iii) the size and resources of the employer.''.
SEC. 5. WAGE HISTORY; DISCUSSION OF WAGES.
(a) In General.--The Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.) is amended by inserting after section 7 the following new
section:
``SEC. 8. PROVISIONS RELATING TO WAGE HISTORY AND DISCUSSION OF WAGE.
``(a) Requirements and Prohibitions Relating to Wage History.--It
shall be an unlawful practice for a person after the date of enactment
of the Wage Equity Act of 2021--
``(1) to rely on the wage history of a prospective
employee--
``(A) in considering the prospective employee for
employment, including by requiring that the wage
history of a prospective employee satisfies minimum or
maximum criteria as a condition of being considered for
employment; or
``(B) in determining the rate of wage for such
prospective employee; or
``(2) to seek, or to require a prospective employee to
disclose, the wage history of such prospective employee.
``(b) Voluntary Disclosure Exceptions.--
``(1) In general.--Subsection (a)(1) shall not apply with
respect to a prospective employee who voluntarily discloses the
wage history of such prospective employee.
``(2) Wage history verification.--Notwithstanding
subsection (a)(2), a person may take actions necessary to
verify the wage history of a prospective employee if such wage
history is voluntarily disclosed to the person by such
prospective employee.
``(c) Prior Inquiries.--Subsection (a) shall not apply with respect
to the wage history of an employee acquired by an employer before the
date of enactment of the Wage Equity Act of 2021, including a current
employee's wage history with another employer that was requested and
used to set an employee's starting wage before such date and which is
embedded in an employee's pay and pay increases after such date.
``(d) Prohibitions Relating to Discussion of Wages.--Subject to
subsection (c), it shall be an unlawful practice for an employer--
``(1) to prohibit an employee from inquiring about,
discussing, or disclosing the wage of--
``(A) the employee; or
``(B) any other employee of the employer if such
employee has voluntarily disclosed the wage of such
employee;
``(2) to prohibit an employee from requesting from the
employer an explanation of differentials in compensation among
employees; or
``(3) to take an adverse employment action against an
employee for--
``(A) conduct described under paragraphs (1) or
(2); or
``(B) encouraging employees to engage in conduct
described in such paragraphs.
``(e) Limitations Relating to Discussion of Wages.--
``(1) Time and place limitations.--An employer may impose
reasonable time, place, and manner limitations on conduct
described under subsection (c) if such limitations are written
and available to each employee.
``(2) Involuntary disclosure.--An employer may prohibit an
employee from discussing the wages of any other employee if
such other employee did not voluntarily disclose such wages to
the employee discussing such wages.
``(f) Pay Expectation Conversation.--Nothing in this section shall
be construed to prevent a person from--
``(1) inquiring about the pay expectations of a prospective
employee; or
``(2) providing information to such employee about the
compensation and benefits offered in relation to the
position.''.
(b) Definitions.--Section 2 of the Fair Labor Standards Act of 1938
(29 U.S.C. 202) is amended by adding at the end the following:
``(z) the term `prospective employee' means an individual who took
an affirmative step to seek employment with a person and who is not
currently employed by such person, a parent, subsidiary, predecessor,
or related company of such person, or an employer connected by a
purchase agreement with such person; and
``(aa) the term `wage history' means the wages paid to the
prospective employee by the prospective employee's current employer or
any previous employer of such employee.''.
(c) Retaliation.--Section 15(a)(3) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 215(a)(3)) is amended--
(1) by inserting ``or prospective employee'' after ``any
employee''; and
(2) by inserting ``or prospective employee'' after ``such
employee''.
(d) Penalty.--
(1) In general.--Section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b)) is amended by inserting ``Any
person who violates the provisions of section 8 with respect to
an employee or prospective employee shall be liable to such
employee in an amount equal to the difference between the
amount that the employee or prospective employee would have
received but for such violation and the amount received by such
employee or prospective employee, and an additional equal
amount as liquidated damages.'' after ``tips unlawfully kept by
the employer, and in an additional equal amount as liquidated
damages.''.
(2) Civil monetary penalty.--Section 16(e)(2) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 216(e)(2)) is amended by
striking ``6 and 7'' and inserting ``6, 7, and 8''.
SEC. 6. NEGOTIATION SKILLS EDUCATION.
(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 under paragraph
(1), the Secretary of Labor may make grants on a competitive
basis to eligible entities to carry out negotiation skills
education programs for the purposes of addressing wage
disparities, including through outreach to women and girls.
(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 education
program for the purposes described in paragraph (2).
(b) Incorporating Education 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
education, 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
Innovation and Opportunity Act (29 U.S.C. 3101 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 18 months after the date of enactment
of this Act, and annually thereafter, the Secretary of Labor, in
consultation with 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 section.
SEC. 7. GAO STUDY.
The Comptroller General shall, not later than 180 days after the
date of the enactment of this Act, submit to Congress a study on the
causes and effects of--
(1) wage disparities among men and women;
(2) with respect to employees that leave the workforce for
parental reasons (commonly referred to as the ``Manager's
Gap''), the impact on wages and opportunity potential; and
(3) the disparities in negotiation skills among men and
women upon entering the workforce.
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