Short title

This Act may be cited as the

Job Protection for Survivors Act

Definitions

As used in this Act, the following definitions apply: (1)

Discriminate

The term discriminate, used with respect to the terms, conditions, or privileges of employment, includes failing to implement a request from an individual, in response to actual or threatened domestic violence, dating violence, sexual assault, or stalking, for a reasonable safety procedure or a job-related modification to enhance the security of that individual or safeguard the workplace (such as installation of a lock, change of a telephone number or seating assignment, provision of a transfer, provision of leave, modification of a schedule, or adjustment of a work requirement), unless the employer can demonstrate that granting the request would impose an undue hardship on the operation of the employer, or would significantly disrupt other employee’s performance of their core job functions. (2)

Domestic violence

The terms domestic violence, dating violence, sexual assault, and stalking have the meanings given such terms in section 40002 of the Violence Against Women Act of 1994 (42 U.S.C. 13925). (3)

Employee

(A)

In general

The term employee means any person employed by an employer. In the case of an individual employed by a public agency, such term means an individual employed as described in section 3(e)(2) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)(2)). (B)

Basis

The term includes a person employed as described in subparagraph (A) on a full- or part-time basis, for a fixed time period, on a temporary basis, pursuant to a detail, or as a participant in a work assignment as a condition of receipt of Federal or State income-based public assistance. (4)

Employer

The term employer— (A)means any person engaged in commerce or in any industry or activity affecting commerce who employs 15 or more individuals; (B)includes any person acting directly or indirectly in the interest of an employer in relation to an employee; and (C)includes a public agency that employs individuals as described in section 3(e)(2) of the Fair Labor Standards Act of 1938, but 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. (5)

Employment benefits

The term employment benefits means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an employee benefit plan, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002(3)). (6)

Family or household member

The term family or household member, used with respect to a person, means an individual who is a spouse, former spouse, parent, son or daughter, or person residing or formerly residing in the same dwelling unit as the person. (7)

Parent; son or daughter

The terms parent and son or daughter have the meanings given the terms in section 101 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611). (8)

Reduced leave schedule

The term reduced leave schedule means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee. (9)

Secretary

The term Secretary means the Secretary of Labor. (10)

Undue hardship

(A)

In general

The term undue hardship means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B). (B)

Factors to be considered

In determining whether a reasonable accommodation would impose an undue hardship on the operation of an employer or public agency, factors to be considered include— (i)the nature and cost of the request of an employee for an accommodation; (ii)the overall financial resources of the facility involved, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation on the operation of the facility; (iii)the overall financial resources of the employer or public agency, the overall size of the business of an employer or public agency with respect to the number of employees of the employer or public agency, and the number, type, and location of the facilities of an employer or public agency; and (iv)the type of operation of the employer or public agency, including the composition, structure, and functions of the workforce of the employer or public agency, the geographic separateness of the facility from the employer or public agency, and the administrative or fiscal relationship of the facility to the employer or public agency. (11)

Victim of domestic violence, dating violence, sexual assault, or stalking

The term victim of domestic violence, dating violence, sexual assault, or stalking includes a person who has been a victim of domestic violence, dating violence, sexual assault, or stalking and a person whose family or household member has been a victim of domestic violence, dating violence, sexual assault, or stalking. (12)

Victim services organization

The term victim services organization means a nonprofit, nongovernmental organization that provides assistance to victims of domestic violence, dating violence, sexual assault, or stalking, or to advocates for such victims, including a rape crisis center, an organization carrying out a domestic violence program, an organization operating a shelter or providing counseling services, or a legal services organization or other organization providing assistance through the legal process.

Employment protection for victims of domestic violence, dating violence, sexual assault, or stalking

An employer shall not fail to hire, refuse to hire, discharge, or harass any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual (including retaliation in any form or manner) because— (1)the individual involved is or the employer or public agency involved perceives that individual to be a victim of domestic violence, dating violence, sexual assault, or stalking; (2)that individual attended, participated in, prepared for, or requested leave to attend, participate in, or prepare for, a criminal or civil court proceeding relating to an incident of domestic violence, dating violence, sexual assault, or stalking of which the individual, or the family or household member of the individual, was a victim; (3)that individual, in response to actual or threatened domestic violence, dating violence, sexual assault, or stalking, requested that the employer or public agency implement a reasonable safety procedure or a job-related modification to enhance the security of that individual or safeguard the workplace involved; or (4)the workplace is disrupted or threatened by the action of a person whom that individual states has committed or threatened to commit domestic violence, dating violence, sexual assault, or stalking against that individual, or that individual’s family or household member.

Entitlement to leave for addressing domestic violence, dating violence, sexual assault, or stalking

(a)

Entitlement to leave

(1)

In general

An employee who is a victim of domestic violence, dating violence, sexual assault, or stalking shall be entitled to a total of 15 days of unpaid leave during any 12-month period for any of the following: (A)To obtain services from a victim services organization related to an incident of domestic violence. (B)To obtain psychological or other counseling for the employee or the employee’s family or household member related to experiences of domestic violence, dating violence, sexual assault, or stalking. (C)To participate in safety planning or take other actions to increase the safety of the employee or the employee’s family or household member from future domestic violence, dating violence, sexual assault, or stalking or ensure economic security, including temporarily or permanently relocating. (D)To seek medical attention for injuries caused by domestic violence or sexual assault. (2)

Leave for court proceedings

An employee who is a victim of domestic violence, dating violence, sexual assault, or stalking shall be entitled to such leave as is necessary to enable the employee to attend or participate in any civil or criminal legal proceeding resulting from an incident of domestic violence, dating violence, sexual assault, or stalking against that employee, including, seeking to obtain a temporary restraining order, restraining order, or other injunctive relief, or to help ensure the health, safety, or welfare of the victim or his or her child. (b)

Schedule

Leave described in subsection (a) may be taken intermittently or on a reduced leave schedule. The taking of leave intermittently or on a reduced leave schedule shall not result in a reduction of the total amount of leave to which the employee is entitled under subsection (a). (c)

Calculation of 12-motnh period

An employer is permitted to choose any 1 of the following methods for determining the 12-month period in which the 15 days of leave entitlement occurs: (1)The calendar year. (2)Any fixed 12-month “leave year” such as a fiscal year, a year required by State law, or a year starting on the date that is 1 year after the date on which an employee begins employment with that employer. (3)The 12-month period measured forward from the first date on which an employee’s takes leave under subsection (a). (d)

Relationship to paid leave

An employee who is entitled to take paid or unpaid leave (including family, medical, sick, annual, personal, or similar leave) from employment, pursuant to Federal, State, or local law, a collective bargaining agreement, or an employment benefits program or plan, may elect to substitute any period of such leave for an equivalent period of leave provided under subsection (a). (e)

Notice to employer and certification

(1)

Notice to employer and duties of employee

In any case in which the necessity for leave under subsection (a) is foreseeable based on a scheduled appointment or planned activity, the employee shall— (A)make a reasonable effort to schedule the appointment or activity so as not to disrupt unduly the operations of the employer; and (B)provide the employer with not less than 15 days notice before the date the leave is to begin, of the employee’s intention to take leave under such subsection, except that if such 15 days’ notice is not practicable, the employee shall provide the employer with such advanced notice as is practicable. (2)

Certification

(A)

In general

The employer may require the employee to provide certification to the employer, within a reasonable period after the employer requests the certification, that— (i)the employee or the employee’s family or household member is a victim of domestic violence, dating violence, sexual assault, or stalking; and (ii)the leave is for 1 of the purposes enumerated in subsection (a). (B)

Contents

An employee may satisfy the certification requirement of subparagraph (A) by providing to the employer— (i)a sworn statement of the employee; (ii)documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional, from whom the employee or the employee’s family or household member has sought assistance in addressing domestic violence, dating violence, sexual assault, or stalking and the effects of domestic violence, dating violence, sexual assault, or stalking; or (iii)a police or court record. (3)

Confidentiality

All information provided to the employer pursuant to paragraphs (1) or (2), including a statement of the employee or any other documentation, record, or corroborating evidence, and the fact that the employee has requested or obtained leave pursuant to subsection (a), shall be retained in the strictest confidence by the employer, except to the extent that disclosure is— (A)requested or consented to by the employee in writing; or (B)otherwise required by applicable Federal or State law. (f)

Employment and benefits

(1)

Restoration to position

Except as provided in paragraph (3), any employee who takes leave under this section for the intended purpose of the leave shall be entitled, on return from such leave— (A)to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B)to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. (2)

Loss of benefits

The taking of leave under this section shall not result in the loss of any employment benefits accrued prior to the date on which the leave commenced. (3)

Limitations

Nothing in this subsection shall be construed to entitle any restored employee to— (A)the accrual of any seniority or employment benefits during any period of leave; or (B)any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave. (4)

Construction

Nothing in this subsection shall be construed to prohibit an employer from requiring an employee on leave under this title to report periodically to the employer on the status and intention of the employee to return to work.

Prohibited acts

(a)

Interference with rights

(1)

Exercise of rights

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under section 4. (2)

Employer discrimination

It shall be unlawful for any employer to discharge or harass any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment of the individual (including retaliation in any form or manner) because the individual— (A)exercised any right provided under section 4 ; or (B)opposed any practice made unlawful by this Act. (b)

Interference with proceedings or inquiries

It shall be unlawful for any person to discharge or in any other manner discriminate (as described in subsection (a)(2)) against any individual because such individual— (1)has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this Act; (2)has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this Act; or (3)has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this Act.

Enforcement

(a)

Civil action by affected individuals

(1)

Liability

Any employer who violates section 3 or 5 of this Act shall be liable to any individual affected— (A)for damages equal to— (i)the amount of— (I)any wages, salary, employment benefits, or other compensation denied or lost to such individual by reason of the violation; or (II)in a case in which wages, salary, employment benefits, or other compensation has not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct result of the violation; (ii)the interest on the amount described in clause (i) calculated at the prevailing rate; and (iii)an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that, in the case of an alleged violation of section 5, if an employer that has violated section 5 proves to the satisfaction of the court that the act or omission that violated section 5 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 5, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and (B)for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. (2)

Right of action

An action to recover the damages or equitable relief prescribed in paragraph (1) may be maintained against any employer in any Federal or State court of competent jurisdiction by any 1 or more affected individuals for and on behalf of— (A)the individuals; or (B)the individuals and other individuals 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 affected individual shall terminate— (A)on the filing of a complaint by the Secretary in an action under subsection (d) in which restraint is sought of any further delay in the payment of the amount described in paragraph (1)(A) to such individual by an employer responsible under paragraph (1) for the payment; or (B)on the filing of a complaint by the Secretary in an action under subsection (b) in which a recovery is sought of the damages described in paragraph (1)(A) owing to an affected individual by an employer liable under paragraph (1),

unless the action described in subparagraph (A) or (B) is dismissed without prejudice on motion of the Secretary.

(b)

Action by the Secretary of Labor

(1)

Administrative action

The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 3 or 5 in the same manner as 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). (2)

Civil action

The Secretary may bring an action in any court of competent jurisdiction to recover the damages described in subsection (a)(1)(A). (3)

Sums recovered

Any sums recovered by the Secretary pursuant to paragraph (2) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each individual affected. Any such sums not paid to such an individual because of inability to do so within a period of 3 years shall be deposited into the Treasury of the United States as miscellaneous receipts. (c)

Limitation

(1)

In general

Except as provided in paragraph (2), an action may be brought under this subsection 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 5, such action may be brought within 3 years after 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 under this subsection for the purposes of this paragraph, it shall be considered to be commenced on the date when the complaint is filed. (d)

Action for injunction by Secretary

The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary— (1)to restrain violations of section 3 or 5, including the restraint of any withholding of payment of wages, salary, employment benefits, or other compensation, plus interest, found by the court to be due to affected individuals; or (2)to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion. (e)

Solicitor of Labor

The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under this subsection. (f)

Certain public agency employers

(1)

Agencies

Notwithstanding any other provision of this section, in the case of a public agency that employs individuals as described in subparagraph (A) or (B) of section 3(e)(2) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)(2)), paragraph (2) shall apply. (2)

Authority

In the case described in paragraph (1), the powers, remedies, and procedures provided in the case of a violation of chapter 63 of title 5, United States Code, in that title to an employing agency, in chapter 12 of that title to the Merit Systems Protection Board, or in that title to any person alleging a violation of chapter 63 of that title, shall be the powers, remedies, and procedures this subsection provides in the case of a violation of section 3 or 5 to that agency, that Board, or any person alleging a violation of section 3 or 5, respectively, against an employee who is such an individual.

Secretary of Labor Regulations

Not later than 120 days after the date of the enactment of this Act, the Secretary of Labor shall prescribe such regulations as are necessary to carry out this Act.

Relationship to State laws

This Act supersedes any provision of a statute, regulation, or rule of a State or political subdivision of a State which provides similar protections and entitlements as provided by this Act, except to the extent that such statute, regulation, or rule provides— (1)greater protection to an individual than that provided by section 3; or (2)an entitlement to leave that exceeds that provided under section 5.