1. Short title
This Act may be referred to as the “Wage Equity Act of 2019”.
Wage Equity Act of 2019
A BILL
To amend the Fair Labor Standards Act of 1938 to enhance provisions related to pay discrimination, and for other purposes.
2. Findings
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.
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.
Currently, there are nearly 75,000,000 women in the workforce, the most in American history. Of the 2,800,000 jobs created in 2018, 58 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 over 58 percent of all college degrees conferred in 2017. Additionally, according to a recent survey of working women, 49 percent of employed women are their family’s primary breadwinner. Women hold the majority of positions in the five fastest growing fields.
Despite these advances there is still concern among the American public that gender-based pay discrimination has not been eliminated.
3. Flexible work arrangement plan
Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)) is amended—
in paragraph (1)—
by striking “or” after “a system which measures earnings by quantity or quality or production”;
inserting “; or (v) a flexible work arrangement plan” after “any other factor other than sex”; and
by inserting “job-related” before “factor other than sex”; and
by adding at the end the following:
“(5) In this subsection, the term “flexible work arrangement plan” means a plan offered by an employer that an employee may opt into in which the employee agrees to certain scheduling benefits, including—
“(A) flexible scheduling.
“(B) a telework program; or
“(C) a compressed work schedule program that allows the employee to work the equivalent of full-time employment over a fewer number of days by increasing the number of daily hours worked.”
4. Pay 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) If an employer conducts a pay analysis audit and such audit reveals unlawful differentials in pay between equal jobs and such employer takes reasonable steps to address such differentials consistent with federal laws prohibiting pay discrimination, such employer shall not be liable for liquidated damages in an action brought against the employer for a violation of section 6(d) if such audit is conducted—
“(A) in good faith to investigate such differentials; and
“(B) not earlier than the date that is 3 years before the date on which the action is brought and not later than the date that is 1 day before the action is brought.
“(2) An audit under this section and remedial action taken in response to the findings of such audit may not be discoverable or admissible for any purpose in any claim against the employer.
“(3) An employer who has not completed an audit under this subsection shall not be subject to a negative or adverse inference as a result of not having completed such audit.”
5. Wage, salary, and benefit history; discussion of wages
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:
“8. Provisions relating to wage, salary, and benefit history and discussion of wages
“(a) Requirements and prohibitions relating to wage, salary, and benefit history—It shall be an unlawful practice for an employer to—
“(1) rely on the wage history of a prospective employee in considering the prospective employee for employment, including requiring that a prospective employee’s prior wages satisfy minimum or maximum criteria as a condition of being considered for employment, except that an employer may rely on wage history if it is voluntarily provided by a prospective employee;
“(2) rely on the wage history of a prospective employee in determining the wages for such prospective employee, except that an employer may rely on wage history if it is voluntarily provided by a prospective employee;
“(3) require a prospective employee to disclose the wage history of such prospective employee; or
“(4) discharge or in any other manner retaliate against any employee or prospective employee because the employee or prospective employee—
“(A) opposed any act or practice made unlawful by this section; or
“(B) took an action for which discrimination is forbidden under section 15(a)(3).
“(b) Prohibitions relating to discussion of wages—Subject to subsection (c), it shall be an unlawful practice for an employer to—
“(1) prohibit an employee from inquiring about, discussing, or disclosing the wages of the employee or another employee, if such employee has voluntarily disclosed the wages of such employee;
“(2) prohibit an employee from requesting from the employer an explanation of differentials in compensation among employees; or
“(3) 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.
“(c) Limitations relating to discussion of wages
“(1) An employer may impose reasonable time, place, and manner limitations on conduct described under subsection (b) if such limitations are written and available to each employee.
“(2) Such limitations may include a prohibition on the discussion by an employee of the wages of another employee if such employee did not voluntarily disclose the wages of such employee.
“(d) Salary expectation conversation—Nothing in this section shall be construed to prevent an employer from—
“(1) inquiring about the salary expectations of a prospective employee; or
“(2) providing information to such employee about the compensation and benefits offered in relation to the position.
“(e) Definition—In this section, the term wage history means the wages paid to the prospective employee by the prospective employee’s current employer or previous employer.”
Penalty— Section 16 of such Act (29 U.S.C. 216) is amended by adding at the end the following new subsection:
“(f) Any person who violates the provisions of section 8 shall be liable to each employee for an amount equal to the sum of—
“(1) $2,000 for a first offense, increased by an additional $500 for each subsequent offense, not to exceed $5,000; and
“(2) with respect to an employee of the employer, the amount that the employee would have received but for such violation and the amount actually received by such employee.”
6. Negotiation skills training
Program authorized—
In general— The Secretary of Labor, after consultation with the Secretary of Education, is authorized to establish and carry out a grant program.
Grants— In carrying out the program, the Secretary of Labor may make grants on a competitive basis to eligible entities to carry out negotiation skills training programs for the purposes of addressing pay disparities, including through outreach to women and girls.
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.
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.
Use of funds— An entity that receives a grant under this subsection shall use the funds made available through the grant to carry out an effective negotiation skills training program for the purposes described in paragraph (2).
Incorporating training into existing programs— The Secretary of Labor and the Secretary of Education shall issue regulations or policy guidance that provides for integrating the negotiation skills training, to the extent practicable, into programs authorized under—
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
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.
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.
7. Department of Labor 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—
pay disparities among men and women;
with respect to employees that leave the workforce for parental reasons (commonly referred to as the “Manager’s Gap”), the impact on pay and opportunity potential; and
the disparities in negotiation skills among men and women upon entering the workforce.