Text: H.R.2710 — 101st Congress (1989-1990)All Information (Except Text)

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--H.R.2710--
H.R.2710
One Hundred First Congress of the United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday, the third day of January,
one thousand nine hundred and eighty-nine
An Act
To amend the Fair Labor Standards Act of 1938 to increase the minimum wage, 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; REFERENCE.
 (a) SHORT TITLE- This Act may be cited as the `Fair Labor Standards Amendments
 of 1989'.
 (b) REFERENCE- Whenever in this Act an amendment or repeal is expressed in
 terms of an amendment to, or repeal of, a section or other provision, the
 reference shall be considered to be made to a section or other provision
 of the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).
SEC. 2. MINIMUM WAGE INCREASE.
 Paragraph (1) of section 6(a) (29 U.S.C. 206(a)(1)) is amended to read
 as follows:
 `(1) except as otherwise provided in this section, not less than $3.35 an
 hour during the period ending March 31, 1990, not less than $3.80 an hour
 during the year beginning April 1, 1990, and not less than $4.25 an hour
 after March 31, 1991;'.
SEC. 3. CHANGE IN ENTERPRISE TEST.
 (a) IN GENERAL- Subsection (s) of section 3 (29 U.S.C. 203(s)) is amended
 to read as follows:
 `(s)(1) `Enterprise engaged in commerce or in the production of goods for
 commerce' means an enterprise that--
 `(A)(i) has employees engaged in commerce or in the production of goods for
 commerce, or that has employees handling, selling, or otherwise working on
 goods or materials that have been moved in or produced for commerce by any
 person; and
 `(ii) is an enterprise whose annual gross volume of sales made or business
 done is not less than $500,000 (exclusive of excise taxes at the retail
 level that are separately stated);
 `(B) is engaged in the operation of a hospital, an institution primarily
 engaged in the care of the sick, the aged, or the mentally ill or defective
 who reside on the premises of such institution, a school for mentally or
 physically handicapped or gifted children, a preschool, elementary or
 secondary school, or an institution of higher education (regardless of
 whether or not such hospital, institution, or school is public or private
 or operated for profit or not for profit); or
 `(C) is an activity of a public agency.
 `(2) Any establishment that has as its only regular employees the owner
 thereof or the parent, spouse, child, or other member of the immediate
 family of such owner shall not be considered to be an enterprise engaged
 in commerce or in the production of goods for commerce or a part of such
 an enterprise. The sales of such an establishment shall not be included
 for the purpose of determining the annual gross volume of sales of any
 enterprise for the purpose of this subsection.'.
 (b) Preservation of Coverage-
 (1) IN GENERAL- Any enterprise that on March 31, 1990, was subject to section
 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) and
 that because of the amendment made by subsection (a) is not subject to such
 section shall--
 (A) pay its employees not less than the minimum wage in effect under such
 section on March 31, 1990;
 (B) pay its employees in accordance with section 7 of such Act (29
 U.S.C. 207); and
 (C) remain subject to section 12 of such Act (29 U.S.C. 212).
 (2) VIOLATIONS- A violation of paragraph (1) shall be considered a violation
 of section 6, 7, or 12 of the Fair Labor Standards Act of 1938, as the case
 may be.
 (c) Conforming Amendments-
 (1) SECTION 13(a)- Section 13(a) (29 U.S.C. 213(a)) is amended by striking
 out paragraphs (2) and (4).
 (2) SECTION 13(g)- Section 13(g) is amended--
 (A) by striking out `paragraphs (2) and' and inserting in lieu thereof
 `paragraph'; and
 (B) by striking out `, except that' and all that follows in such subsection
 and inserting in lieu thereof a period.
 (d) TECHNICAL AMENDMENTS- Section 3(r) (29 U.S.C. 203(r)) is amended--
 (1) by inserting `(1)' after `(r)';
 (2) by striking out `: Provided, That, within' and inserting in lieu thereof
 a period and `Within';
 (3) by redesignating clauses (1), (2), and (3) as subparagraphs (A), (B),
 and (C), respectively;
 (4) by striking out `For purposes of this subsection' and inserting in lieu
 thereof the following:
 `(2) For purposes of paragraph (1)';
 (5) by redesignating paragraphs (1), (2), and (3) as subparagraphs (A),
 (B), and (C), respectively; and
 (6) by striking out `public or private or' in subparagraph (A) (as so
 redesignated).
 (e) EFFECTIVE DATE- The amendments made by this section shall become
 effective on April 1, 1990.
SEC. 4. PUERTO RICO, VIRGIN ISLANDS, AND AMERICAN SAMOA.
 (a) SPECIAL INDUSTRY COMMITTEES- Section 5 (29 U.S.C. 205) is amended--
 (1) in the first sentence of subsection (a), by striking out `Puerto Rico or
 the Virgin Islands, or in Puerto Rico and the Virgin Islands,' and inserting
 in lieu thereof `American Samoa';
 (2) in the second sentence of subsection (a)--
 (A) by striking out `such island or islands' and inserting in lieu thereof
 `American Samoa'; and
 (B) by striking out `Puerto Rico and the Virgin Islands' and inserting in
 lieu thereof `American Samoa';
 (3) by striking out subsection (e); and
 (4) in the section heading, by striking out `PUERTO RICO AND THE VIRGIN
 ISLANDS' and inserting in lieu thereof `AMERICAN SAMOA'.
 (b) MINIMUM WAGE- Section 6 (29 U.S.C. 206) is amended--
 (1) in subsection (a)(3)--
 (A) in the first sentence, by striking out all that follows `appoint'
 through the period at the end of the sentence and inserting in lieu thereof
 `pursuant to sections 5 and 8.'; and
 (B) by striking out the second sentence; and
 (2) by striking out subsection (c) and inserting in lieu thereof the
 following new subsection:
 `(c)(1) The rate or rates provided by subsection (a)(1) shall be applicable
 in the case of any employee in Puerto Rico who is employed by--
 `(A) the United States,
 `(B) an establishment that is a hotel, motel or restaurant,
 `(C) any other retail or service establishment that employs such employee
 primarily in connection with the preparation or offering of food or beverages
 for human consumption, either on the premises, or by such services as
 catering, banquet, box lunch, or curb or counter service, to the public,
 to employees, or to members or guests of members of clubs, or
 `(D) any other industry in which the average hourly wage is greater than
 or equal to $4.65 an hour.
 `(2) In the case of any employee in Puerto Rico who is employed in an
 industry in which the average hourly wage is not less than $4.00 but not
 more than $4.64, the minimum wage rate applicable to such employee shall be
 increased on April 1, 1990, and each April 1 thereafter through April 1, 1994,
 by equal amounts (rounded to the nearest 5 cents) so that the highest minimum
 wage rate prescribed in subsection (a)(1) shall apply on April 1, 1994.
 `(3) In the case of an employee in Puerto Rico who is employed in an industry
 in which the average hourly wage is less than $4.00, except as provided in
 paragraph (4), the minimum wage rate applicable to such employee shall be
 increased on April 1, 1990, and each April 1 thereafter through April 1, 1995,
 by equal amounts (rounded to the nearest 5 cents) so that the highest minimum
 wage rate prescribed in subsection (a)(1) shall apply on April 1, 1995.
 `(4) In the case of any employee of the Commonwealth of Puerto Rico, or a
 municipality or other governmental entity of the Commonwealth, in which
 the average hourly wage is less than $4.00 an hour and who was brought
 under the coverage of this section pursuant to an amendment made by the
 Fair Labor Standards Amendments of 1985 (Public Law 99-150), the minimum
 wage rate applicable to such employee shall be increased on April 1, 1990,
 and each April 1 thereafter through April 1, 1996, by equal amounts (rounded
 to the nearest 5 cents) so that the highest minimum wage rate prescribed
 in subsection (a)(1) shall apply on April 1, 1996.'.
 (c) WAGE ORDERS- Section 8 (29 U.S.C. 208) is amended--
 (1) in the first sentence of subsection (a), by striking out `Puerto Rico
 and the Virgin Islands' and inserting in lieu thereof `American Samoa';
 (2) by striking out the second sentence of subsection (a);
 (3) in the third sentence of subsection (a)--
 (A) by striking out `Puerto Rico or the Virgin Islands, or in Puerto Rico
 and the Virgin Islands,' and inserting in lieu thereof `American Samoa'; and
 (B) by inserting before the period at the end of the sentence `, and who
 but for section 6(a)(3) would be subject to the minimum wage requirements
 of section 6(a)(1)';
 (4) in the third sentence of subsection (b)--
 (A) by striking out `Puerto Rico or in the Virgin Islands' and inserting
 in lieu thereof `American Samoa';
 (B) by striking out `Puerto Rico and the Virgin Islands' and inserting in
 lieu thereof `American Samoa'; and
 (C) by striking out `section 6(c)' and inserting in lieu thereof `section
 6(a)(3)'; and
 (5) in the section heading, by striking out `PUERTO RICO AND THE VIRGIN
 ISLANDS' and inserting in lieu thereof `AMERICAN SAMOA'.
 (d) EMPLOYMENT UNDER SPECIAL CERTIFICATES- Section 14(b) (29 U.S.C. 214(b))
 is amended by striking out `(or in' and all that follows through `section
 6(c))' each place it appears in paragraphs (1)(A), (2), and (3).
SEC. 5. TIP CREDIT.
 Effective April 1, 1990, the third sentence of section 3(m) (29 U.S.C. 203(m))
 is amended by striking out `in excess of 40 per centum of the applicable
 minimum wage rate,' and inserting in lieu thereof `in excess of (1) 45 percent
 of the applicable minimum wage rate during the year beginning April 1, 1990,
 and (2) 50 percent of the applicable minimum wage rate after March 31, 1991,'.
SEC. 6. TRAINING WAGE.
 (a) In General-
 (1) AUTHORITY- Any employer may, in lieu of the minimum wage prescribed by
 section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206), pay an
 eligible employee the wage prescribed by paragraph (2)--
 (A) while such employee is employed for the period authorized by subsection
 (g)(1)(B)(i), or
 (B) while such employee is engaged in on-the-job training for the period
 authorized by subsection (g)(1)(B)(ii).
 (2) WAGE RATE- The wage referred to in paragraph (1) shall be a wage--
 (A) of not less than $3.35 an hour during the year beginning April 1,
 1990; and
 (B) beginning April 1, 1991, of not less than $3.35 an hour or 85 percent
 of the wage prescribed by section 6 of such Act, whichever is greater.
 (b) WAGE PERIOD- An employer may pay an eligible employee the wage authorized
 by subsection (a) for a period that--
 (1) begins on or after April 1, 1990;
 (2) does not exceed the maximum period during which an employee may be paid
 such wage as determined under subsection (g)(1)(B); and
 (3) ends before April 1, 1993.
 (c) WAGE CONDITIONS- No eligible employee may be paid the wage authorized
 by subsection (a) by an employer if--
 (1) any other individual has been laid off by such employer from the position
 to be filled by such eligible employee or from any substantially equivalent
 position; or
 (2) such employer has terminated the employment of any regular employee
 or otherwise reduced the number of employees with the intention of filling
 the vacancy so created by hiring an employee to be paid such wage.
 (d) Limitations-
 (1) EMPLOYEE HOURS- During any month in which employees are to be employed
 in an establishment under this section, the proportion of employee hours
 of employment to the total hours of employment of all employees in such
 establishment may not exceed a proportion equal to one-fourth of the total
 hours of employment of all employees in such establishment.
 (2) DISPLACEMENT-
 (A) PROHIBITION- No employer may take any action to displace employees
 (including partial displacements such as reduction in hours, wages,
 or employment benefits) for purposes of hiring individuals at the wage
 authorized in subsection (a).
 (B) DISQUALIFICATION- If the Secretary determines that an employer has taken
 an action in violation of subparagraph (A), the Secretary shall issue an
 order disqualifying such employer from employing any individual at such wage.
 (e) NOTICE- Each employer shall provide to any eligible employee who is
 to be paid the wage authorized by subsection (a) a written notice before
 the employee begins employment stating the requirements of this section and
 the remedies provided by subsection (f) for violations of this section. The
 Secretary shall provide to employers the text of the notice to be provided
 under this subsection.
 (f) ENFORCEMENT- Any employer who violates this section shall be considered
 to have violated section 15(a)(3) of the Fair Labor Standards Act of 1938
 (29 U.S.C. 215(a)(3)). Sections 16 and 17 of such Act (29 U.S.C. 216 and 217)
 shall apply with respect to the violation.
 (g) DEFINITIONS- For purposes of this section:
 (1) Eligible employee-
 (A) IN GENERAL- The term `eligible employee' means with respect to an
 employer an individual who--
 (i) is not a migrant agricultural worker or a seasonal agricultural worker
 (as defined in paragraphs (8) and (10) of section 3 of the Migrant and
 Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802 (8) and
 (10)) without regard to subparagraph (B) of such paragraphs and is not a
 nonimmigrant described in section 101(a)(15)(H)(ii)(a) of the Immigration
 and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a));
 (ii) has not attained the age of 20 years; and
 (iii) is eligible to be paid the wage authorized by subsection (a) as
 determined under subparagraph (B).
 (B) Duration-
 (i) An employee shall initially be eligible to be paid the wage authorized
 by subsection (a) until the employee has been employed a cumulative total
 of 90 days at such wage.
 (ii) An employee who has been employed by an employer at the wage authorized
 by subsection (a) for the period authorized by clause (i) may be employed
 by any other employer for an additional 90 days if the employer meets the
 requirements of subsection (h).
 (iii) The total period, as authorized by clauses (i) and (ii), that an
 employee may be paid the wage authorized by subsection (a) may not exceed
 180 days.
 (iv) For purposes of this subparagraph, the term `employer' means with
 respect to an employee an employer who is required to withhold payroll
 taxes for such employee.
 (C) Proof-
 (i) IN GENERAL- An individual is responsible for providing the requisite
 proof of previous period or periods of employment with other employers. An
 employer's good faith reliance on the proof presented to the employer by
 an individual shall constitute a complete defense to a charge that the
 employer has violated subsection (b)(2) with respect to such individual.
 (ii) REGULATIONS- The Secretary of Labor shall issue regulations defining the
 requisite proof required of an individual. Such regulations shall establish
 minimal requirements for requisite proof and may prescribe that an accurate
 list of the individual's employers and a statement of the dates and duration
 of employment with each employer constitute requisite proof.
 (2) ON-THE-JOB TRAINING- The term `on-the-job training' means training that
 is offered to an individual while employed in productive work that provides
 training, technical and other related skills, and personal skills that are
 essential to the full and adequate performance of such employment.
 (h) EMPLOYER REQUIREMENTS- An employer who wants to employ employees at the
 wage authorized by subsection (a) for the period authorized by subsection
 (g)(1)(B)(ii) shall--
 (1) notify the Secretary annually of the positions at which such employees
 are to be employed at such wage,
 (2) provide on-the-job training to such employees which meets general criteria
 of the Secretary issued by regulation after consultation with the Committee
 on Labor and Human Resources of the Senate and the Committee on Education
 and Labor of the House of Representatives and other interested persons,
 (3) keep on file a copy of the training program which the employer will
 provide such employees,
 (4) provide a copy of the training program to the employees,
 (5) post in a conspicuous place in places of employment a notice of the
 types of jobs for which the employer is providing on-the-job training, and
 (6) send to the Secretary on an annual basis a copy of such notice.
The Secretary shall make available to the public upon request notices provided
to the Secretary by employers in accordance with paragraph (6).
 (i) REPORT- The Secretary of Labor shall report to Congress not later than
 March 1, 1993, on the effectiveness of the wage authorized by subsection
 (a). The report shall include--
 (1) an analysis of the impact of such wage on employment opportunities for
 inexperienced workers;
 (2) any reduction in employment opportunities for experienced workers
 resulting from the employment of employees under such wage;
 (3) the nature and duration of the training provided under such wage; and
 (4) the degree to which employers used the authority to pay such wage.
SEC. 7. MAXIMUM HOUR EXEMPTION FOR EMPLOYEES RECEIVING REMEDIAL EDUCATION.
 Section 7 (29 U.S.C. 207) is amended by adding at the end thereof the
 following new subsection:
 `(q) Any employer may employ any employee for a period or periods of not
 more than 10 hours in the aggregate in any workweek in excess of the maximum
 workweek specified in subsection (a) without paying the compensation for
 overtime employment prescribed in such subsection, if during such period
 or periods the employee is receiving remedial education that is--
 `(1) provided to employees who lack a high school diploma or educational
 attainment at the eighth grade level;
 `(2) designed to provide reading and other basic skills at an eighth grade
 level or below; and
 `(3) does not include job specific training.'.
SEC. 8. APPLICATION OF RIGHTS AND PROTECTIONS OF FAIR LABOR STANDARDS ACT
OF 1938 TO CONGRESSIONAL AND ARCHITECT OF THE CAPITOL EMPLOYEES.
 (a) House Employees-
 (1) IN GENERAL- Not later than 180 days after the date the minimum wage
 rate prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938
 (29 U.S.C. 206(a)(1)) is increased pursuant to the amendment made by section
 2, the rights and protections under the Fair Labor Standards Act of 1938
 (29 U.S.C. 201 et seq.) shall apply with respect to any employee in an
 employment position in the House of Representatives and to any employing
 authority of the House of Representatives.
 (2) ADMINISTRATION- In the administration of this subsection, the remedies
 and procedures under the Fair Employment Practices Resolution shall be
 applied. As used in this paragraph, the term `Fair Employment Practices
 Resolution' means House Resolution 558, One Hundredth Congress, agreed to
 October 4, 1988, as continued in effect by House Resolution 15, One Hundred
 First Congress, agreed to January 3, 1989.
 (b) ARCHITECT OF THE CAPITOL EMPLOYEES- Not later than 180 days after the
 date the minimum wage rate prescribed by section 6(a)(1) of the Fair Labor
 Standards Act of 1938 (29 U.S.C. 206(a)(1)) is increased pursuant to the
 amendment made by section 2, the rights and protections under the Fair Labor
 Standards Act of 1938 (29 U.S.C. 201 et seq.) shall apply with respect to
 individuals employed under the Office of the Architect of the Capitol.
SEC. 9. CIVIL PENALTIES FOR VIOLATIONS.
 Section 16(e) (29 U.S.C. 216(e)) is amended--
 (1) in the first sentence, by inserting after `or any regulation issued under
 that section,' the following: `or any person who repeatedly or willfully
 violates section 6 or 7'; and
 (2) in paragraph (3), by adding after `section 15(a)(4)' the following:
 `or a repeated or willful violation of section 15(a)(2)'.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.