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Title II — Ensuring Fair Treatment for Part-time Workers

S. 3358 · 116th Congress · Feb 27, 2020 · Lineage

II Ensuring Fair Treatment for Part-time Workers

Sec. 201 Definitions

In this title:
(1)
Employ— The term employ has the meaning given the term in section 3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)).
(2)
Employee— The term employee means an individual who is—
(A)
an employee, as defined in section 3(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)), who is not covered under any of subparagraphs (B) through (G), except that a reference in such section to an employer shall be considered to be a reference to a person in commerce described in paragraph (3)(A);
(B)
a State employee described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a));
(C)
a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301), except that such term shall not include an applicant for employment;
(D)
a covered employee, as defined in section 411(c) of title 3, United States Code;
(E)
a Federal officer or employee covered under subchapter V of chapter 63 of title 5, United States Code; or
(F)
an employee of the Government Accountability Office.
(3)
Employer— The term employer—
(A)
(i)
means any person in commerce that—
(I)
except as provided in subclause (II)—
(aa)
employs more than 500 employees described in paragraph (2)(A), which shall be calculated by including all employees described in paragraph (2)(A) performing work for compensation on a full-time, part-time, or temporary basis, except that if the number of such employees who perform work for such a person for compensation fluctuates, the number may be determined for a calendar year based upon the average number of such employees who performed work for the person for compensation during the preceding calendar year; or
(bb)
is part of an integrated enterprise, chain of businesses, group of franchises associated with a franchisor, or network of franchises that, in the aggregate, employs more than 500 employees, calculated in accordance with item (aa); and
(II)
for purposes of section 202, employs, directly or in the aggregate as described in subclause (I)(bb), more than 15 employees, calculated in accordance with subclause (I)(aa);
(ii)
includes—
(I)
any person who acts, directly or indirectly, in the interest of such an employer to any of the employees (described in clause (i)) of such employer; and
(II)
any successor in interest of such an employer; and
(iii)
includes an agency described in subparagraph (A)(iii) of section 101(4) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611(4)), to which subparagraph (B) of such section shall apply;
(B)
is 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));
(C)
is an employing office, as defined in section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301);
(D)
is an employing office, as defined in section 411(c) of title 3, United States Code;
(E)
is an employing agency covered under subchapter V of chapter 63 of title 5, United States Code; or
(F)
is the Comptroller General of the United States.
(4)
Person— The term person, except as used with the term “person in commerce”, has the meaning given the term in section 3(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(a)).
(5)
Person in commerce—
(A)
In general— The term person in commerce means any person who is engaged in commerce, in any industry or activity affecting commerce, or in the production of goods for commerce.
(B)
Commerce— In subparagraph (A), the term commerce includes government.

Sec. 202 Elimination of discrimination on the basis of hours worked

(a)
Rule—
(1)
In general— An employer shall not discriminate against an employee on the basis that such employee is scheduled to work fewer hours per week, or is employed for a shorter expected duration, than another employee of the employer if the jobs of such employees require substantially equal skill, effort, responsibility, and duties and such jobs are performed under similar working conditions.
(2)
Examples— Discrimination described in paragraph (1) shall include differential treatment with respect to—
(A)
rate of compensation;
(B)
notice of, and input into, work hours;
(C)
eligibility to accrue, on a pro rata basis, employer-provided paid and unpaid time off and other benefits;
(D)
promotion opportunities; or
(E)
other terms, conditions, or privileges of employment.
(b)
Distinctions permitted— This section shall not be construed to prohibit differences in rate of compensation, or other conditions, terms, or privileges of employment, of employees of an employer for reasons other than the number of hours the employees are scheduled to work per week, or the expected duration of employment of the employees, including for reasons such as—
(1)
the date on which the employees are hired;
(2)
a merit system; or
(3)
a system that measures earnings by quantity per hour or quality of production.

Sec. 203 Offer of work to existing employees

(a)
Written statements required—
(1)
In general— Upon hiring an employee, an employer shall—
(A)
obtain a written statement of the employee’s desired number of weekly work hours and the days and times the employee is available to work;
(B)
notify the employee that this written statement may be modified in writing at any time during employment; and
(C)
specify the process to modify the written statement.
(b)
Offer of desired weekly work hours to existing employees—
(1)
In general— Except as provided in paragraph (2), an employer shall schedule an employee of the employer to work the number of weekly hours identified by the employee as desired weekly hours in a written statement under subsection (a) prior to hiring any new employee from an external applicant pool, including hiring through the use of a temporary services or staffing agency, or contracting with a contractor or subcontractor, to work such hours.
(2)
Exceptions— An employer may hire an individual as a new employee, or engage a contractor or subcontractor, to perform work for the employer if—
(A)
the employer needs to fill hours for which no employees of the employer who have provided written statements under subsection (a) are available based on such written statements;
(B)
all employees of the employer who have provided written statements under subsection (a) lack, and cannot obtain with reasonable training, the qualifications necessary to perform the work; or
(C)
scheduling any such employee to perform the work would require providing such employee overtime compensation at a rate not less than one and one half times the regular rate at which the employee is employed, in accordance with section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) or any State law.
(c)
Compensation required—
(1)
In general— Except as provided in paragraph (2), an employee (referred to in this subsection as an “existing employee”) who is not scheduled for the desired number of total weekly work hours identified by the employee in a written statement under subsection (a) shall be compensated for each hour worked by a newly hired employee, contractor, or subcontractor hired after the existing employee so identified such number of hours, during an hour that such existing employee identified in a written statement under such subsection as an hour for which the employee is available to work.
(2)
Exception— An employer shall not be required to compensate an existing employee under paragraph (1) for any hour of work for which—
(A)
the employee lacks, or cannot obtain with reasonable training, the qualifications necessary to perform the work;
(B)
scheduling such employee to perform the work would require providing the employee overtime compensation as described in subsection (b)(2)(C);
(C)
the employer made a reasonable attempt to contact the employee to work such hour and was unable to reach the employee; or
(D)
the employee was otherwise no longer available.
(d)
Definition— For purposes of this section, the terms written, with respect to a statement, and writing mean a printed or printable communication in physical or electronic form.

Sec. 204 Prohibited acts

(a)
Interference with rights— It shall be unlawful for any employer to interfere with, restrain, or deny the exercise or the attempt to exercise, any rights set forth under this title.
(b)
Retaliation prohibited— It shall be unlawful for any employer to discharge, threaten to discharge, demote, suspend, reduce work hours of, or otherwise discriminate (including taking any other adverse employment action) against any person because of an employee of the employer exercising the rights of the employee under this title or opposing any practice made unlawful by this title.
(c)
Interference with Proceedings or Inquiries— It shall be unlawful for any person to discharge or in any other manner discriminate against an individual because such individual—
(1)
has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this title;
(2)
has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this title; or
(3)
has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this title.

Sec. 205 Remedies and enforcement

(a)
Investigative authority—
(1)
In general— To ensure compliance with this title, including any regulation or order issued under this title, the Secretary shall have, subject to paragraph (3), the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)).
(2)
Obligation to keep and preserve records—
(A)
In general— Each employer shall maintain for a period of not less than 3 years, or for the duration of any claim (including the duration of a related civil action or investigation) pending pursuant to this title, whichever is longer, all records necessary to demonstrate compliance with this title, including compliance with the requirements of regulations issued by the Secretary under section 206. Such records shall include documentation of offers of hours of work to employees and responses to such offers.
(B)
Copies— Each employer shall, upon a reasonable request of an employee of the employer, provide the employee with a copy of the records described in subparagraph (A) relating to the employee.
(3)
Required submissions generally limited to an annual basis— The Secretary shall not require, under the authority of this subsection, any employer to submit to the Secretary any books or records more than once during any 12-month period, unless the Secretary has reasonable cause to believe there may exist a violation of this title, including any regulation or order issued pursuant to this title, or is investigating a charge pursuant to subsection (c).
(4)
Subpoena powers— For the purposes of any investigation provided for in this subsection, the Secretary shall have the subpoena authority provided for under section 9 of the Fair Labor Standards Act of 1938 (29 U.S.C. 209).
(b)
Civil action by employees—
(1)
Liability—
(A)
In general— Any employer who violates section 202, 203, or 204 (each such provision referred to in this section as a “covered provision”) shall be liable to any person affected for—
(i)
damages equal to the amount of—
(I)
any wages, salary, employment benefits (as defined in section 101 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611)), or other compensation denied, lost, or owed to such employee by reason of the violation; or
(II)
in a case in which wages, salary, employment benefits (as so defined), or other compensation have not been denied, lost, or owed to the employee, any actual monetary losses sustained by the employee as a direct result of the violation;
(ii)
interest on the amount described in clause (i) calculated at the prevailing rate;
(iii)
except as provided in subparagraph (B), an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii); and
(iv)
such equitable relief as may be appropriate, including employment, reinstatement, and promotion.
(B)
Exception for liquidated damages— If an employer who has violated a covered provision proves to the satisfaction of the court that the act or omission which violated the covered provision was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of a covered provision, such court may, in the discretion of the court, reduce the amount of liability under subparagraph (A) to the amount, interest, and equitable relief determined under clauses (i), (ii), and (iv), respectively.
(2)
Right of Action— An action to recover the damages, interest, or equitable relief set forth in paragraph (1) may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and on behalf of—
(A)
such employees; or
(B)
such employees and any other employees similarly situated.
(3)
Fees and Costs— The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.
(4)
Limitations— The right provided by paragraph (2) to bring an action by or on behalf of any employee shall terminate on the filing of a complaint by the Secretary in an action under subsection (c)(4) in which a recovery is sought of the damages, interest, or equitable relief described in paragraph (1)(A) owing to an employee by an employer liable under paragraph (1) unless the action is dismissed without prejudice on motion of the Secretary.
(c)
Actions by the Secretary—
(1)
Administrative Action— The Secretary shall receive, investigate, and attempt to resolve complaints of violations of this title 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), and may issue an order making determinations, and assessing a civil penalty described in paragraph (3) (in accordance with paragraph (3)), with respect to such an alleged violation.
(2)
Administrative Review— An affected person who takes exception to an order issued under paragraph (1) may request review of and a decision regarding such an order by an administrative law judge. In reviewing the order, the administrative law judge may hold an administrative hearing concerning the order, in accordance with the requirements of sections 554, 556, and 557 of title 5, United States Code. Such hearing shall be conducted expeditiously.
(3)
Civil penalty—
(A)
In general— An employer who willfully and repeatedly violates—
(i)
section 204(a) shall be subject to a civil penalty in an amount to be determined by the Secretary, but not to exceed $100 per violation (subject to subparagraph (B)); or
(ii)
subsection (b) or (c) of section 204 shall be subject to a civil penalty in an amount to be determined by the Secretary, but not to exceed $1,100 per violation (subject to subparagraph (B)).
(B)
Inflation— The Secretary shall, for each year beginning with calendar year 2021, increase the maximum amounts for the penalties described in clauses (i) and (ii) of subparagraph (A) by a percentage equal to the percentage increase in the Consumer Price Index for All Urban Consumers, published by the Department of Labor, between December 2019 and the December prior to the year for which the increase takes effect.
(4)
Civil action—
(A)
In general— The Secretary may bring an action in any court of competent jurisdiction on behalf of aggrieved employees to—
(i)
restrain violations of this title;
(ii)
obtain such equitable relief as may be appropriate, including employment, reinstatement, and promotion; and
(iii)
in the case of a violation of a covered provision, recover the damages, interest, and equitable relief described in clauses (i) through (iv) of subsection (b)(1)(A).
(B)
Recovery on behalf of employees— Any sums recovered by the Secretary under subparagraph (A) on behalf of an employee shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to the employee affected. Any such sums not paid to an employee because of inability to do so within a period of three years shall be deposited in the Treasury and credited to miscellaneous receipts.
(d)
Limitation—
(1)
In general— Except as provided in paragraph (2), an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.
(2)
Willful Violation— In the case of such action brought for a willful violation of section 204, such action may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought.
(3)
Commencement— In determining when an action is commenced by the Secretary or by an employee under this section for the purposes of this subsection, it shall be considered to be commenced on the date when the complaint is filed.
(e)
Other Administrative Officers—
(1)
Employees covered by Congressional Accountability Act of 1995— The powers 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 and procedures this title provides to that Board, or any person, alleging a violation of this title against an employee described in section 201(2)(C).
(2)
Employees covered by chapter 5 of title 3, United States Code— The powers 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 and procedures this title provides to the President, that Board, or any person, respectively, alleging a violation of this title against an employee described in section 201(2)(D).
(3)
Employees covered by chapter 63 of title 5, United States Code— The powers 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 and procedures this title provides to that agency, that Board, or any person, respectively, alleging a violation of this title against an employee described in section 201(2)(E).
(4)
Comptroller General— In the case of employees of the Government Accountability Office, the authority of the Secretary under this title shall be exercised by the Comptroller General of the United States.

Sec. 206 Regulations

(a)
Secretary of Labor— Except as provided in subsections (b) through (e), not later than 180 days after the date of enactment of this title, the Secretary shall issue such regulations as may be necessary to implement this title.
(b)
Board—
(1)
In general— Not later than 180 days after the date of enactment of this Act, the Board of Directors of the Office of Congressional Workplace Rights shall issue such regulations as may be necessary to implement this title with respect to employees described in section 201(2)(C). The procedures applicable to regulations of the Board issued for the implementation of the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.), prescribed in section 304 of that Act (2 U.S.C. 1384), shall be the procedures applicable to regulations issued under this subsection.
(2)
Consideration— In prescribing the regulations, the Board shall take into consideration the enforcement and remedies provisions concerning the Office and applicable to rights and protections under the Family and Medical Leave Act of 1993 (29 U.S.C. 2611 et seq.), under the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.).
(3)
Modifications— The regulations issued under paragraph (1) to implement this title shall be the same as substantive regulations issued by the Secretary to implement this title, except to the extent that the Board may determine, for good cause shown and stated together with the regulations issued by the Board, that a modification of such substantive regulations would be more effective for the implementation of the rights and protections under this title.
(c)
President—
(1)
In general— Not later than 180 days after the date of enactment of this Act, the President shall issue such regulations as may be necessary to implement this title with respect to employees described in section 201(2)(D).
(2)
Consideration— In prescribing the regulations, the President shall take into consideration the enforcement and remedies provisions concerning the President and the Merit Systems Protection Board, and applicable to rights and protections under the Family and Medical Leave Act of 1993, under chapter 5 of title 3, United States Code.
(3)
Modifications— The regulations issued under paragraph (1) to implement this title shall be the same as substantive regulations issued by the Secretary to implement this title, except to the extent that the President may determine, for good cause shown and stated together with the regulations issued by the President, that a modification of such substantive regulations would be more effective for the implementation of the rights and protections under this title.
(d)
Office of Personnel Management—
(1)
In general— Not later than 180 days after the date of enactment of this Act, the Office of Personnel Management shall issue such regulations as may be necessary to implement this title with respect to employees described in section 201(2)(E).
(2)
Consideration— In prescribing the regulations, the Office shall take into consideration the enforcement and remedies provisions concerning an employing agency and the Merit Systems Protection Board under subchapter V of chapter 63 of title 5, United States Code.
(3)
Modifications— The regulations issued under paragraph (1) to implement this title shall be the same as substantive regulations issued by the Secretary to implement this title, except to the extent that the Office may determine, for good cause shown and stated together with the regulations issued by the Office, that a modification of such substantive regulations would be more effective for the implementation of the rights and protections under this title.
(e)
Comptroller General—
(1)
In general— Not later than 180 days after the date of enactment of this Act, the Comptroller General of the United States shall issue such regulations as may be necessary to implement this title with respect to employees of the Government Accountability Office.
(2)
Consideration— In prescribing the regulations, the Comptroller General shall take into consideration the enforcement and remedies provisions concerning the Comptroller General under title I of the Family and Medical Leave Act of 1993.
(3)
Modifications— The regulations issued under paragraph (1) to implement this title shall be the same as substantive regulations issued by the Secretary to implement this title, except to the extent that the Comptroller General may determine, for good cause shown and stated together with the regulations issued by the Comptroller General, that a modification of such substantive regulations would be more effective for the implementation of the rights and protections under this title.