[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2419 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 2419
To prohibit certain uses of automated decision systems by employers,
and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 20, 2023
Mr. Casey (for himself, Mr. Schatz, Mr. Fetterman, and Mr. Sanders)
introduced the following bill; which was read twice and referred to the
Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To prohibit certain uses of automated decision systems by employers,
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 ``No Robot Bosses Act''.
SEC. 2. DEFINITIONS.
For purposes of this Act:
(1) Automated decision system.--
(A) In general.--The term ``automated decision
system'' means a system, software, or process that--
(i) uses computation, in whole or in part,
to determine outcomes, make or aid decisions
(including through evaluations, metrics, or
scoring), inform policy implementation, or
collect data or observations, including such a
system, software, or process derived from
machine learning, statistics, or other data
processing or artificial intelligence
techniques; and
(ii) is not passive computing
infrastructure.
(B) Passive computing infrastructure.--For purposes
of this paragraph, the term ``passive computing
infrastructure'' means any intermediary technology that
does not influence or determine the outcome of a
decision, make or aid in a decision (including through
evaluations, metrics, or scoring), inform policy
implementation, or collect data or observations,
including web hosting, domain registration, networking,
caching, data storage, or cybersecurity.
(2) Automated decision system output.--The term ``automated
decision system output'' means any information, assumption,
prediction, score, recommendation, decision, evaluation,
metric, conclusion, inference, or profile generated by an
automated decision system.
(3) Candidate.--The term ``candidate'', with respect to an
employer, means an individual who applies, or applied, to be
employed by, or otherwise perform work for remuneration for,
the employer.
(4) Covered individual.--The term ``covered individual'',
with respect to an employer, means an individual--
(A) who is employed by, or otherwise performing
work for remuneration for, the employer, including such
an individual who is--
(i) any individual performing work for
remuneration for an employer described in
clauses (i)(I) and (ii) of paragraph (6)(A);
(ii) any individual performing work for
remuneration for an entity described in
paragraph (6)(A)(i)(II);
(iii) any individual performing work for
remuneration for an employing office described
in paragraph (6)(A)(i)(III);
(iv) any individual performing work for
remuneration for an employing office described
in paragraph (6)(A)(i)(IV); or
(v) any individual performing work for
remuneration for an employing agency described
in paragraph (6)(A)(i)(V); or
(B) who is a candidate with respect to the
employer.
(5) Employ.--The term ``employ'' has the meaning given such
term in section 3 of the Fair Labor Standards Act of 1938 (29
U.S.C. 203).
(6) Employer.--
(A) In general.--The term ``employer'' means any
person who is--
(i)(I) a covered employer who is not
described in any other subclause of this
clause;
(II) an entity employing a State employee
described in section 304(a) of the Government
Employee Rights Act of 1991 (42 U.S.C. 2000e-
16c(a));
(III) an employing office, as defined in
section 101 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1301);
(IV) an employing office, as defined in
section 411(c) of title 3, United States Code;
or
(V) an employing agency covered under
subchapter V of chapter 63 of title 5, United
States Code; and
(ii) engaged in commerce (including
government), or an industry or activity
affecting commerce (including government).
(B) Covered employer.--In subparagraph (A), the
term ``covered employer''--
(i) means any person engaged in commerce or
in any industry or activity affecting commerce
who employs, or otherwise engages for the
performance of work for remuneration, 11 or
more covered individuals;
(ii) includes--
(I) any person who acts, directly
or indirectly, in the interest of a
covered employer in relation to any
individual performing work for
remuneration for such covered employer;
(II) any successor in interest of a
covered employer;
(III) any public agency; and
(IV) the Government Accountability
Office and the Library of Congress; and
(iii) does not include any labor
organization (other than when acting as an
employer) or anyone acting in the capacity of
officer or agent of such labor organization.
(C) Public agency.--For purposes of this paragraph,
a public agency shall be considered to be a person
engaged in commerce or in an industry or activity
affecting commerce.
(D) Definitions.--For purposes of this paragraph,
the terms ``commerce'', ``person'', and ``public
agency'' have the meanings given the terms in section 3
of the Fair Labor Standards Act of 1938 (29 U.S.C.
203).
(7) Employment-related decision.--The term ``employment-
related decision'' includes a decision by an employer with
regard to--
(A) hiring a covered individual (including any
decision with regard to recruiting, screening,
interviewing, or selecting a candidate);
(B) firing, retaining, taking a disciplinary action
against, demoting, or reassigning duties of a covered
individual; or
(C) any other term, condition, or privilege of
employment or work of the covered individual, such as
relating to pay, scheduling, health care or long-term
care coverage, benefits, or hours worked or promoting a
covered individual.
(8) Government entity.--The term ``government entity''
means--
(A) a Federal agency (as such term is defined in
section 3371 of title 5, United States Code);
(B) a State or political subdivision thereof;
(C) any agency, authority, or instrumentality of a
State or political subdivision thereof; or
(D) a Tribal government or political subdivision
thereof.
(9) Indian tribe.--The term ``Indian Tribe'' means any
Indian or Alaska Native tribe, band, nation, pueblo, village,
community, component band, or component reservation
individually identified (including parenthetically) in the list
published most recently as of the date of enactment of this Act
pursuant to section 104 of the Federally Recognized Indian
Tribe List Act of 1994 (25 U.S.C. 5131).
(10) Labor organization.--The term ``labor organization''
has the meaning given the term in section 2(5) of the National
Labor Relations Act (29 U.S.C. 152(5)), except that such term
shall also include--
(A) any organization composed of labor
organizations, such as a labor union federation or a
State or municipal labor body; and
(B) any organization which would be included in the
definition for such term under such section 2(5) but
for the fact that the organization represents--
(i) individuals employed by the United
States, any wholly owned Government
corporation, any Federal Reserve Bank, or any
State or political subdivision thereof;
(ii) individuals employed by persons
subject to the Railway Labor Act (45 U.S.C. 151
et seq.); or
(iii) individuals employed as agricultural
laborers.
(11) Predispute arbitration agreement.--The term
``predispute arbitration agreement'' means any agreement to
arbitrate a dispute that has not yet arisen at the time of the
making of the agreement.
(12) Predispute joint-action waiver.--The term ``predispute
joint-action waiver'' means an agreement, whether or not part
of a predispute arbitration agreement, that would prohibit, or
waive the right of, one of the parties to the agreement to
participate in a joint, class, or collective action in a
judicial, arbitral, administrative, or other forum, concerning
a dispute that has not yet arisen at the time of the making of
the agreement.
(13) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(14) State.--The term ``State'' means each of the several
States of the United States, the District of Columbia, or any
territory or possession of the United States.
(15) State attorney general.--The term ``State attorney
general'' means--
(A) with respect to a State, the attorney general
or chief law enforcement officer of the State, or
another official or agency designated by the State to
bring civil actions on behalf of the State or the
residents of the State; and
(B) with respect to a Tribal government, the
attorney general or chief law enforcement officer of
the Tribal government, or another official or agency
designated by the Tribal government to bring civil
actions on behalf of the Tribal government or the
Indian Tribe of the Tribal government.
(16) State privacy regulator.--The term ``State privacy
regulator'' means--
(A) the chief consumer protection officer of a
State; or
(B) a State consumer protection agency with
expertise in data protection, including the California
Privacy Protection Agency.
(17) Tribal government.--The term ``Tribal government''
means the recognized governing body of an Indian Tribe.
SEC. 3. USE OF AN AUTOMATED DECISION SYSTEM BY AN EMPLOYER.
(a) Employment-Related Decisions.--
(1) In general.--An employer--
(A) may not rely exclusively on an automated
decision system in making an employment-related
decision with respect to a covered individual; and
(B) may not use an automated decision system output
in making an employment-related decision with respect
to a covered individual unless--
(i) the automated decision system used to
generate such automated decision system output
has had pre-deployment testing and validation
with respect to--
(I) the efficacy of the system;
(II) the compliance of the system
with applicable employment
discrimination laws, including--
(aa) title VII of the Civil
Rights Act of 1964 (42 U.S.C.
2000e et seq.);
(bb) the Age Discrimination
in Employment Act of 1967 (29
U.S.C. 621 et seq.);
(cc) title I of the
Americans with Disabilities Act
of 1990 (42 U.S.C. 12111 et
seq.);
(dd) title II of the
Genetic Information
Nondiscrimination Act of 2008
(42 U.S.C. 2000ff et seq.);
(ee) section 6(d) of the
Fair Labor Standards Act of
1938 (29 U.S.C. 206(d));
(ff) sections 501 and 505
of the Rehabilitation Act of
1973 (29 U.S.C. 791; 793); and
(gg) the Pregnant Workers
Fairness Act (division II of
the Consolidated Appropriations
Act, 2023 (Public Law 117-
328));
(III) the lack of any potential
discriminatory impact of the system,
including discriminatory impact based
on race, color, religion, sex
(including pregnancy, sexual
orientation, or gender identity),
national origin, age, or disability and
genetic information (including family
medical history); and
(IV) the compliance of the system
with the Artificial Intelligence Risk
Management Framework released by the
National Institute of Standards and
Technology on January 26, 2023, or
successor framework;
(ii) such automated decision system is, not
less than annually, independently tested for
discriminatory impact described in clause
(i)(III) or potential biases and the results of
such test are made publicly available;
(iii) the employer has provided the
disclosure required under paragraph (2) with
respect to such use of an automated decision
system output;
(iv) such use is designed for purposes of
making such an employment-related decision;
(v) the employer independently
corroborates, via meaningful oversight by a
human with appropriate and relevant experience,
such automated decision system output;
(vi) not later than 7 days after making
such an employment-related decision, the
employer provides full, accessible, and
meaningful documentation in plain language to
such covered individual (at no cost to such
covered individual) on the automated decision
system output, including--
(I) a description of the automated
decision system used to generate such
automated decision system output;
(II) a description and explanation,
in plain language, of the input data to
such automated decision system used to
generate such automated decision system
output and a machine-readable copy of
such data;
(III) a description and explanation
of how such automated decision system
output was used in making such
employment-related decision; and
(IV) the reasoning for the use of
such automated decision system output
in such employment-related decision;
and
(vii) the employer enables the covered
individual to, after receiving such
documentation--
(I) dispute (in a manner that is
accessible and equitable and does not
pose an unreasonable burden on the
covered individual) such automated
decision system output to a human with
appropriate and relevant experience;
and
(II) appeal such employment-related
decision to a human with appropriate
and relevant experience who is not the
human for purposes of the corroboration
under clause (v).
(2) Disclosure.--
(A) In general.--An employer that uses or intends
to use an automated decision system output in making an
employment-related decision with respect to a covered
individual shall, in accordance with subparagraph (B),
disclose to such covered individual--
(i) that the employer uses or intends to
use an automated decision system output in
making such an employment-related decision;
(ii) a description and explanation of the
automated decision system used or intended to
be used to generate such automated decision
system output, including--
(I) the types of data collected or
intended to be collected as inputs to
the automated decision system and the
circumstances of such collection;
(II) the characteristics that the
automated decision system measures or
is intended to measure, such as the
knowledge, skills, or abilities of the
covered individual;
(III) how such characteristics
relate or would relate to any function
required for the work or potential work
of the covered individual;
(IV) how the system measures or is
intended to measure such
characteristics; and
(V) how the covered individual can
interpret the automated decision system
output in plain language;
(iii) the identity of the individual or
entity that operates the automated decision
system that provides such an automated decision
system output;
(iv) how the employer uses or intends to
use such an automated decision system output in
making such an employment-related decision; and
(v) how the covered individual may dispute
or appeal an employment-related decision made
with respect to the covered individual using an
automated decision system output.
(B) Timing of notice.--
(i) Initial disclosure.--An employer shall
provide the disclosure required under
subparagraph (A)--
(I) in the case of a covered
individual for whom an employment-
related decision with regard to the
hiring of the covered individual--
(aa) was made before the
date of enactment of this Act,
to the covered individual not
later than 30 days after such
date of enactment; or
(bb) is made on or after
the date of enactment of this
Act, to the covered individual,
except as provided in subclause
(II), prior to making such
employment-related decision;
and
(II) in the case of a candidate who
applies to the employer on or after the
date of enactment of this Act, prior to
accepting an application by the
candidate to be employed by, or
otherwise perform work for remuneration
for, the employer.
(ii) Subsequent disclosures.--Not later
than 30 days after any information provided by
an employer to a covered individual through a
disclosure required under clause (ii) or (iv)
of subparagraph (A) significantly changes or
after any significant new information required
to be provided in such a disclosure becomes
available, the employer shall provide the
covered individual with an updated disclosure.
(3) Training.--An employer that uses or intends to use an
automated decision system output in making an employment-
related decision with respect to a covered individual shall
train any individual or entity that operates the automated
decision system that provides such an automated decision system
output or uses such automated decision system output on the use
of such system, including on--
(A) the input information used by such automated
decision system;
(B) the appeals process for such an automated
decision system output;
(C) potential biases in automated decision systems;
(D) any limitations of the automated decision
system;
(E) any potential adverse effects to covered
individuals due to the automated decision system;
(F) any potential errors or problems related to the
automated decision system; and
(G) examples of inappropriate uses of the automated
decision system.
(b) Management by an Automated Decision System.--An employer that
manages a covered individual through an automated decision system shall
enable the covered individual to opt out of such management and be
managed through a human manager who is able to make employment-related
decisions with respect to the covered individual.
SEC. 4. ESTABLISHMENT OF TECHNOLOGY AND WORKER PROTECTION DIVISION.
(a) In General.--There is established in the Department of Labor
the Technology and Worker Protection Division.
(b) Administrator of the Technology and Worker Protection
Division.--The President shall appoint an Administrator of the
Technology and Worker Protection Division to head the Technology and
Worker Protection Division.
(c) Employees and Advisory Boards of the Division.--
(1) In general.--The Administrator--
(A) may select, appoint, and employ, without regard
to the provisions of sections 3309 through 3318 of
title 5, United States Code, individuals, including
technologists, directly to positions in the competitive
service, as defined in section 2102 of such title, to
carry out the duties of the Administrator under this
Act; and
(B) may fix the compensation of the individuals
described in subparagraph (A) without regard to chapter
51 and subchapter III of chapter 53 of title 5, United
States Code, relating to classification of positions
and General Schedule pay rates, except that the rate of
pay for such individuals may not exceed the rate
payable for level V of the Executive Schedule under
section 5316 of that title.
(2) Advisory boards.--
(A) Establishment.--The Administrator shall
establish the following advisory boards to advise and
consult with in the exercise of the functions of the
Administrator under this Act and to provide information
on emerging practices relating to the treatment of data
by employers:
(i) The User Advisory Board, which shall be
comprised of experts in consumer protection,
privacy, civil rights, disability rights, labor
organizations, and ethics.
(ii) The Research Advisory Board, which
shall be comprised of individuals with academic
and research expertise in privacy,
cybersecurity, computer science, innovation,
design, ethics, economics, civil rights law,
disability law, labor organizations and public
policy and representatives of labor
organizations.
(iii) The Product Advisory Board, which
shall be comprised of technologists, computer
scientists, designers, product managers,
attorneys, representatives of labor
organizations, workplace technology experts,
accessibility experts, and other
representatives of employers and employees.
(iv) The Labor Advisory Board, which shall
be comprised of representatives of labor
organizations and representatives of workers.
(B) Appointments.--The Administrator shall appoint
members to the advisory boards established under
subparagraph (A) without regard to party affiliation.
(C) Meetings.--Each advisory board established
under subparagraph (A) shall meet--
(i) at the call of the Administrator; and
(ii) not less than 2 times annually.
(D) Compensation and travel expenses.--A member of
an advisory board established under subparagraph (A)
who is not an officer or employee of the Federal
Government shall--
(i) be entitled to receive compensation at
a rate fixed by the Administrator while
attending meetings of the advisory board,
including travel time; and
(ii) receive travel expenses, including per
diem in lieu of subsistence, in accordance with
applicable provisions under subchapter I of
chapter 57 of title 5, United States Code.
(E) Exemption from the federal advisory committee
act.--Each advisory board established under
subparagraph (A) shall be exempt from chapter 10 of
title 5, United States Code.
(3) Use of voluntary services.--The Administrator may, as
may from time to time be needed, use any voluntary or
uncompensated services.
(4) Attorneys.--Attorneys appointed under this subsection
may appear for and represent the Administrator in any
litigation.
(d) Offices.--
(1) In general.--The principal office of the Technology and
Worker Protection Division shall be in the District of
Columbia.
(2) Regional, local, and other offices.--The Administrator
may establish regional, local, or other offices, including an
office in the city of San Francisco, California or the San
Francisco Bay area in California.
SEC. 5. REGULATIONS.
(a) In General.--
(1) Authority.--
(A) In general.--Except as provided in paragraph
(2), the Secretary, acting through the Administrator,
may prescribe such regulations as may be necessary to
carry out this Act with respect to covered individuals
described in section 2(4)(A) (other than covered
individuals described in clauses (iii) through (v) of
such section) and other individuals affected by
employers described in subclause (I) or (II) of section
2(6)(A)(i), including individuals who are covered
individuals described in section 2(4)(B) with respect
to such employers.
(B) Consultation.--In prescribing any regulations
authorized under this paragraph, the Secretary, acting
through the Administrator, may consult with--
(i) Federal agencies that have jurisdiction
over Federal privacy laws or expertise in
privacy, including the Federal Trade
Commission;
(ii) Federal agencies that have
jurisdiction over labor and employment issues,
including the Equal Employment Opportunity
Commission, the National Science Foundation,
and the National Labor Relations Board; and
(iii) any other Federal agencies with
relevant expertise, including the United States
Access Board and the Office of Science and
Technology Policy.
(2) Government accountability office; library of
congress.--The Comptroller General of the United States and the
Librarian of Congress shall prescribe any regulations described
in paragraph (1)(A) with respect to covered individuals of the
Government Accountability Office and the Library of Congress,
respectively, and other individuals affected by the Comptroller
General of the United States and the Librarian of Congress,
respectively.
(b) Employees Covered by Congressional Accountability Act of
1995.--
(1) Authority.--Not later than 45 days after the Secretary
prescribes any regulation under subsection (a)(1)(A), the Board
of Directors of the Office of Compliance shall prescribe (in
accordance with section 304 of the Congressional Accountability
Act of 1995 (2 U.S.C. 1384)) such regulations as may be
necessary to carry out this Act with respect to covered
individuals described in section 2(4)(A)(iii) and other
individuals affected by employers described in section
2(6)(A)(i)(III), including individuals who are covered
individuals described in section 2(4)(B) with respect to such
employers.
(2) Agency regulations.--The regulations prescribed under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary under subsection (a)(1)(A) except
insofar as the Board may determine, for good cause shown and
stated together with the regulations prescribed under paragraph
(1), that a modification of such regulations would be more
effective for the implementation of the rights and protections
involved under this section.
(c) Employees Covered by Chapter 5 of Title 3, United States
Code.--
(1) Authority.--Not later than 45 days after the Secretary
prescribes any regulation under subsection (a)(1)(A), the
President (or the designee of the President) shall prescribe
such regulations as may be necessary to carry out this Act with
respect to covered individuals described in section 2(4)(A)(iv)
and other individuals affected by employers described in
section 2(6)(A)(i)(IV), including individuals who are covered
individuals described in section 2(4)(B) with respect to such
employers.
(2) Agency regulations.--The regulations prescribed under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary under subsection (a)(1)(A) except
insofar as the President (or designee) may determine, for good
cause shown and stated together with the regulations prescribed
under paragraph (1), that a modification of such regulations
would be more effective for the implementation of the rights
and protections involved under this section.
(d) Employees Covered by Chapter 63 of Title 5, United States
Code.--
(1) Authority.--Not later than 45 days after the Secretary
prescribes any regulation under subsection (a)(1)(A), the
Director of the Office of Personnel Management shall prescribe
such regulations as may be necessary to carry out this Act with
respect to covered individuals described in section 2(4)(A)(v)
and other individuals affected by employers described in
section 2(6)(A)(i)(V), including individuals who are covered
individuals described in section 2(4)(B) with respect to such
employers.
(2) Agency regulations.--The regulations prescribed under
paragraph (1) shall be the same as substantive regulations
promulgated by the Secretary under subsection (a)(1)(A) except
insofar as the Director may determine, for good cause shown and
stated together with the regulations prescribed under paragraph
(1), that a modification of such regulations would be more
effective for the implementation of the rights and protections
involved under this section.
SEC. 6. WHISTLEBLOWER PROTECTIONS.
No employer shall discriminate or retaliate (including through
intimidation, threats, coercion, or harassment) against any covered
individual of the employer--
(1) for exercising, or attempting to exercise, any right
provided under this Act; or
(2) because the covered individual (or another individual
acting at the request of the covered individual) has--
(A) filed a written or oral complaint to the
employer or a Federal, State, or local government
entity of a violation of section 3;
(B) sought assistance or intervention with respect
to a worker privacy-related concern from the employer,
a Federal, State, or local government, or a worker
representative;
(C) instituted, caused to be instituted, or
otherwise participated in any inquiry or proceeding
under or related to this Act;
(D) given, or is about to give, any information in
connection with any inquiry or proceeding relating to
any right provided under this Act; or
(E) testified, or is about to testify, in any
inquiry or proceeding relating to any right provided
under this Act.
SEC. 7. ENFORCEMENT.
(a) In General.--
(1) Definition.--For purposes of this subsection:
(A) Covered individual.--The term ``covered
individual'' means a covered individual--
(i) described in section 2(4)(A) (other
than covered individuals described in clauses
(iii) through (v) of such section); or
(ii) described in section 2(4)(B) with
respect to an employer.
(B) Employer.--The term ``employer'' means an
employer described in subclause (I) or (II) of section
2(6)(A)(i).
(2) Enforcement by the technology and worker protection
division.--
(A) Investigation.--
(i) In general.--To ensure compliance with
the provisions of this Act, or any regulation
or order issued under this Act, the Secretary,
acting through the Administrator--
(I) may investigate and gather data
regarding the wages, hours, and other
conditions and practices of employment
in any industry subject to this Act,
and may enter and inspect any place or
record (and make such transcriptions
thereof), question any covered
individual, and investigate any facts,
conditions, practices, or matters as
the Secretary may deem necessary or
appropriate to determine whether an
employer has violated any provision of
this Act, or which may aid in the
enforcement of the provisions of this
Act; and
(II) may require, by general or
special orders, an employer, to file
with the Secretary, in such form as the
Secretary may prescribe, annual or
special reports or answers in writing
to specific questions, furnishing to
the Secretary such information or
records as the Secretary may require as
to the organization, business, conduct,
practices, management, and relation to
other corporations, partnerships, and
individuals, of the employer.
(ii) Reports and answers.--An employer
shall file the reports and answers (including
information and records) required under clause
(i)(II) in such manner, including under oath or
otherwise, and within such reasonable time
period as the Secretary may require.
(iii) Joint investigations.--The Secretary,
acting through the Administrator, may conduct
investigations and make requests for
information, as authorized under this Act, on a
joint basis with another Federal agency, a
State attorney general, or a State agency.
(iv) Obligation to keep, preserve, and make
available records.--An employer shall make,
keep, preserve, and make available to the
Secretary records pertaining to compliance with
this Act in accordance with section 11(c) of
the Fair Labor Standards Act of 1938 (29 U.S.C.
211(c)) and in accordance with any regulation
or order issued by the Secretary.
(B) Enforcement.--With respect to employers and
covered individuals, the Secretary, acting through the
Administrator, shall receive, investigate, and attempt
to resolve complaints of violations of section 3 or 6
in the same manner that the Secretary receives,
investigates, and attempts to resolve complaints of
violations of sections 6 and 7 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206 and 207).
(C) Referral for criminal proceedings.--If the
Secretary, in the course of the performance of any act
or duty under this Act, obtains evidence that any
employer has engaged in conduct that may constitute a
violation of Federal criminal law, the Secretary shall
refer the matter to the Attorney General for
prosecution under any applicable law. Nothing in this
paragraph shall affect any other authority of the
Secretary to disclose information.
(D) Litigation.--The Solicitor of Labor may appear
for and represent the Secretary on any litigation
brought under this subsection.
(3) Private right of action.--
(A) In general.--
(i) Covered individual.--Notwithstanding
any action by the Secretary under paragraph
(2)(B), any covered individual adversely
affected by an alleged violation of section 3
or 6, may commence a civil action against any
person that violates such section in any
Federal court of competent jurisdiction.
(ii) Labor organization.--Notwithstanding
any action by the Secretary under paragraph
(2)(B), any labor organization adversely
affected by an alleged violation of 3 or 6 may
commence a civil action against any person that
violates such section in any Federal court of
competent jurisdiction.
(B) Relief.--
(i) In general.--In a civil action brought
under subparagraph (A) in which the covered
individual or labor organization prevails, the
court may award the covered individual or labor
organization--
(I) damages of--
(aa) an amount equal to the
sum of any actual damages
sustained by the covered
individual; or
(bb) not more than treble
damages;
(II) statutory damages described in
clause (iv);
(III) injunctive relief; and
(IV) equitable relief.
(ii) Attorney's fees.--In a civil action
brought under subparagraph (A) in which the
covered individual or labor organization
prevails, the court shall award the covered
individual or labor organization reasonable
attorney's fees and litigation costs.
(iii) Temporary relief for
whistleblowers.--In a civil action brought
under subparagraph (A) regarding a violation of
section 6, the court may award the covered
individual or labor organization temporary
relief while the case is pending, including
reinstatement.
(iv) Statutory damages.--The court may, in
accordance with clause (v), award statutory
damages under clause (i)(II) against a person
in the following amounts:
(I) Using an automated decision
system for prohibited activities.--For
each violation of section 3 by an
employer with respect to a covered
individual, the court may, subject to
clause (vi), award--
(aa) damages of an amount
not less than $5,000 and not
more than $20,000; or
(bb) for any willful or
repeated violation by the
employer, damages of an amount
not less than $10,000 and not
more than $40,000.
(II) Retaliation on
whistleblowers.--For each violation of
section 6, the court may, subject to
clause (vi), award--
(aa) damages of an amount
not less than $5,000 and not
more than $50,000; or
(bb) for any willful or
repeated violation, damages of
an amount not less than $10,000
and not more than $100,000.
(v) Considerations for statutory damages.--
In determining the amount of statutory damages
assessed under clause (iv), the court shall
consider any relevant circumstances presented
by the parties to the action, including--
(I) the nature and seriousness of
the violation;
(II) the number of violations;
(III) the persistence of the
misconduct;
(IV) the length of time over which
the misconduct occurred;
(V) the willfulness of the
misconduct of the employer; and
(VI) the assets, liabilities, and
net worth of the employer.
(vi) Adjustment for inflation.--The dollar
amounts referred to subclauses (I) and (II) of
clause (iv) shall be increased annually, for
fiscal year 2025 and every fiscal year
thereafter, by the percent increase, if any, in
the consumer price index for all urban
consumers for the most recent 12-month period
for which applicable data is available.
(C) Rights of the secretary and a state attorney
general.--Prior to an covered individual or labor
organization bringing a civil action under subparagraph
(A), such covered individual or labor organization
shall, in writing, notify the Secretary and any
relevant State attorney general of the intent to
commence such civil action. Upon receiving such notice,
the Secretary and State attorney general shall each,
not later than 60 days after receiving such notice--
(i) determine whether to intervene in such
action and, upon intervening--
(I) be heard on all matters arising
in such action; and
(II) file petitions for appeal of a
decision in such action; and
(ii) notify such covered individual or
labor organization.
(D) Remedies for state employees.--
(i) Waiver of sovereign immunity.--A
State's receipt or use of Federal financial
assistance for any program or activity of a
State shall constitute a waiver of sovereign
immunity, under the 11th Amendment to the
Constitution of the United States or otherwise,
to a suit brought by a covered individual of
that program or activity, or a labor
organization representing such a covered
individual, under this paragraph for equitable,
legal, or other relief authorized under this
paragraph.
(ii) Official capacity.--An official of a
State may be sued in the official capacity of
the official by any covered individual or such
a labor organization who has complied with the
procedures under this paragraph, for injunctive
relief that is authorized under this paragraph.
In such a suit the court may award to the
prevailing party those costs authorized by
section 722 of the Revised Statutes (42 U.S.C.
1988).
(iii) Applicability.--With respect to a
particular program or activity, clause (i)
applies to conduct that occurs--
(I) after the date of enactment of
this Act; and
(II) on or after the day on which a
State first receives or uses Federal
financial assistance for that program
or activity.
(iv) Definition of program or activity.--In
this subparagraph, the term ``program or
activity'' has the meaning given the term in
section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a).
(E) Remedies for tribal government employees.--
(i) Waiver of sovereign immunity.--A Tribal
government's receipt or use of Federal
financial assistance for any program or
activity of the Tribal government shall
constitute a waiver of sovereign immunity to a
suit brought by a covered individual of that
program or activity, or a labor organization
representing such a covered individual, under
this paragraph for equitable, legal, or other
relief authorized under this paragraph.
(ii) Official capacity.--An official of a
Tribal government may be sued in the official
capacity of the official by any covered
individual or such a labor organization who has
complied with the procedures under this
paragraph for injunctive relief that is
authorized under this paragraph. In such a suit
the court may award to the prevailing party
those costs authorized by section 722 of the
Revised Statutes (42 U.S.C. 1988).
(iii) Applicability.--With respect to a
particular program or activity, clause (i)
applies to conduct that occurs--
(I) after the date of enactment of
this Act; and
(II) on or after the day on which a
Tribal government first receives or
uses Federal financial assistance for
that program or activity.
(iv) Definition of program or activity.--In
this subparagraph, the term ``program or
activity'' has the meaning given the term in
section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a).
(4) Enforcement by the government accountability office and
library of congress.--Notwithstanding any other provision of
this subsection, in the case of the Government Accountability
Office and the Library of Congress, the authority of the
Secretary under this subsection shall be exercised respectively
by the Comptroller General of the United States and the
Librarian of Congress, respectively.
(b) Employees Covered by Congressional Accountability Act of
1995.--The powers, remedies, and procedures provided in the
Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.) to the
Board (as defined in section 101 of that Act (2 U.S.C. 1301)), or any
person, alleging a violation of section 202(a)(1) of that Act (2 U.S.C.
1312(a)(1)) shall be the powers, remedies, and procedures this Act
provides to that Board, or any person, with regard to an allegation of
a violation of section 3 or 6 against a covered individual described in
section 2(4)(A)(iii) or described in section 2(4)(B) with respect to an
employer described in section 2(6)(A)(i)(III).
(c) Employees Covered by Chapter 5 of Title 3, United States
Code.--The powers, remedies, and procedures provided in chapter 5 of
title 3, United States Code, to the President, the Merit Systems
Protection Board, or any person, alleging a violation of section
412(a)(1) of that title, shall be the powers, remedies, and procedures
this Act provides to the President, that Board, or any person,
respectively, with regard to an allegation of a violation of section 3
or 6 against a covered individual described in section 2(4)(A)(iv) or
described in section 2(4)(B) with respect to an employer described in
section 2(6)(A)(i)(IV).
(d) Employees Covered by Chapter 63 of Title 5, United States
Code.--The powers, remedies, and procedures provided in title 5, United
States Code, to an employing agency, provided in chapter 12 of that
title to the Merit Systems Protection Board, or provided in that title
to any person, alleging a violation of chapter 63 of that title, shall
be the powers, remedies, and procedures this Act provides to that
agency, that Board, or any person, respectively, with regard to an
allegation of a violation of section 3 or 6 against a covered
individual described in section 2(4)(A)(v) or described in section
2(4)(B) with respect to an employer described in section 2(6)(A)(i)(V).
(e) Enforcement by States.--
(1) In general.--In any case in which a State attorney
general or a State privacy regulator has reason to believe that
an interest of the residents of a State has been or is
adversely affected by any person who violates any provision of
section 3 or 6, including a regulation or order prescribed
under this Act, the State attorney general or State privacy
regulator, as parens patriae, may bring a civil action on
behalf of the residents of the State in an appropriate State
court or an appropriate district court of the United States
to--
(A) enjoin further violation of such provision by
the person;
(B) compel compliance with such provision;
(C) obtain damages (including statutory damages
described in paragraph (4)), civil penalties,
restitution, or other compensation on behalf of the
residents of the State; or
(D) obtain reasonable attorney's fees and other
litigation costs reasonably incurred.
(2) Rights of agency.--Before initiating a civil action
under paragraph (1), the State attorney general or State
privacy regulator, as the case may be, shall notify the
Secretary in writing of such civil action. Upon receiving such
notice, the Secretary may--
(A) intervene in such action; and
(B) upon intervening--
(i) be heard on all matters arising in such
civil action; and
(ii) file petitions for appeal of a
decision in such action.
(3) Preemptive action by agency.--In any case in which a
civil action is instituted by or on behalf of the Secretary for
violation of this Act or a regulation promulgated under this
Act, a State attorney general or State privacy regulator may
not, during the pendency of such action, institute a civil
action against any defendant named in the complaint in the
action instituted by or on behalf of the Secretary for a
violation that is alleged in such complaint. In a case brought
by the Secretary that affects the interests of a State, the
State attorney general or State privacy regulator may intervene
as of right pursuant to the Federal Rules of Civil Procedure.
(4) Statutory damages.--In a civil action instituted under
paragraph (1), a court may award statutory damages under
paragraph (1)(C) against a person for a violation of any
provision of section 3 or 6--
(A) in an amount not more than $50,000 for each
such violation; or
(B) in the case of such a violation that results in
the discharge of an employee or other serious economic
harm to an employee by such a person who has, within
the preceding 5 years, committed another such violation
resulting in such a discharge or other serious economic
harm, not more than $100,000 for each such violation.
(5) Preservation of state powers.--Except as provided in
paragraph (3), no provision of this subsection shall be
construed as altering, limiting, or affecting the authority of
a State attorney general or State privacy regulator to--
(A) bring an action or other regulatory proceeding
arising solely under the laws in effect in that State;
or
(B) exercise the powers conferred on the State
attorney general or State privacy regulator by the laws
of the State, including the ability to conduct
investigations, administer oaths or affirmations, or
compel the attendance of witnesses or the production of
documentary or other evidence.
(f) Arbitration and Class Action.--Notwithstanding any other
provision of law, no predispute arbitration agreement or predispute
joint-action waiver shall be valid or enforceable with respect to any
alleged violation of section 3 or 6.
SEC. 8. COORDINATION.
In carrying out this Act, the Secretary, acting through the
Administrator, shall coordinate with any appropriate Federal agency or
State regulator to promote consistent regulatory treatment of automated
decision systems.
SEC. 9. RELATION TO OTHER LAWS.
Except as explicitly provided otherwise in this Act, nothing in
this Act shall be construed to preempt, modify, limit, or supersede--
(1) any provision of Federal or State law; or
(2) the authority of the Federal Trade Commission, Equal
Employment Opportunity Commission, National Labor Relations
Board, or any other Federal agency.
SEC. 10. SEVERABILITY.
If any provision of this Act or the application of such provision
to any person or circumstance is held to be unconstitutional, the
remainder of this Act and the application of the provisions of such to
all other persons or circumstances shall not be affected thereby.
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