[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2773 Introduced in Senate (IS)]

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114th CONGRESS
  2d Session
                                S. 2773

To amend the Fair Labor Standards Act of 1938 to provide more effective 
 remedies to victims of discrimination in the payment of wages on the 
                 basis of sex, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 11, 2016

 Ms. Ayotte (for herself, Mrs. Capito, Mr. Portman, Mr. Burr, and Mr. 
    Heller) introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
To amend the Fair Labor Standards Act of 1938 to provide more effective 
 remedies to victims of discrimination in the payment of wages on the 
                 basis of sex, 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 ``Gender Advancement in Pay Act'' or 
the ``GAP Act''.

SEC. 2. ENHANCED PROHIBITION ON WAGE DISCRIMINATION.

    Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
206(d)) is amended--
            (1) in paragraph (1)--
                    (A) in clause (iii), by striking ``or'' at the end;
                    (B) by redesignating clause (iv) as clause (vi);
                    (C) by inserting before clause (vi), as 
                redesignated by subparagraph (B) of this paragraph, the 
                following: ``(iv) a differential based on expertise; 
                (v) a shift differential; or''; and
                    (D) in clause (vi), as redesignated by subparagraph 
                (B) of this paragraph, by striking ``any other factor 
                other than sex'' and inserting ``a business-related 
                factor other than sex, including but not limited to 
                education, training, or experience'';
            (2) by redesignating paragraph (4) as paragraph (5); and
            (3) by inserting after paragraph (3) the following:
    ``(4) If a charge is filed by or on behalf of an employee for a 
violation of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e 
et seq.), and an action is brought by or on behalf of the employee for 
a violation of this subsection, with respect to the same practice, or 
if an action is brought before the Equal Employment Opportunity 
Commission by or on behalf of the employee for a violation of this 
subsection, the statute of limitations for the action involved under 
section 6 of the Portal-to-Portal Act of 1947 (29 U.S.C. 255) shall be 
tolled until the earlier of--
            ``(A) the date on which the Equal Employment Opportunity 
        Commission or the Attorney General brings an action or provides 
        notification to the employee with respect to the charge under 
        section 706(f)(1) of the Civil Rights Act of 1964 (42 U.S.C. 
        2000e-5(f)(1)); or
            ``(B) the date that is 270 days after the date on which 
        such charge is filed.''.

SEC. 3. NONRETALIATION PROVISION.

    Section 15 of the Fair Labor Standards Act of 1938 (29 U.S.C. 215) 
is amended--
            (1) in subsection (a)(3), by striking ``employee has 
        filed'' and all that follows and inserting ``employee--
                    ``(A) has made a charge or filed any complaint or 
                instituted or caused to be instituted any 
                investigation, proceeding, hearing, or action under or 
                related to this Act, including an investigation 
                conducted by the employer, or has testified or is 
                planning to testify or has assisted or participated in 
                any manner in any such investigation, proceeding, 
                hearing, or action, or has served or is planning to 
                serve on an industry committee; or
                    ``(B) has inquired about, discussed, or disclosed 
                the wages of the employee or another employee, or has 
                declined to discuss or disclose the wages of the 
                employee;''; and
            (2) by adding at the end the following:
    ``(c)(1) Subsection (a)(3)(B) shall not apply to an instance in 
which an employee who has access to the wage information of other 
employees as a part of such employee's essential job functions 
discloses the wages of any of such other employees to an individual who 
does not otherwise have access to such information, unless such 
disclosure is in response to a charge or complaint or in furtherance of 
an investigation, proceeding, hearing, or action under or related to 
section 6(d), including an investigation conducted by the employer.
    ``(2) Any employer who requires an employee to sign a contract or 
waiver that would prohibit the employee from disclosing information 
about the employee's wages shall be considered to have committed an 
unlawful act under subsection (a)(3)(B).
    ``(3) Nothing in this subsection shall be construed to limit the 
rights of an employee provided under any other provision of law.''.

SEC. 4. CIVIL PENALTY.

    Section 16(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
216(e)) is amended--
            (1) in paragraph (2)--
                    (A) by striking ``(2)'' and inserting ``(2)(A)''; 
                and
                    (B) by adding at the end the following:
    ``(B)(i) Any person who willfully violates section 6(d) shall be 
subject to--
            ``(I) a civil penalty in an amount described in clause (ii) 
        for each employee affected (less the amount of any penalty the 
        person has paid under State law for the wage differential 
        involved); and
            ``(II) any penalty that may apply under subparagraph (A).
    ``(ii) The amount referred to in clause (i)(I) shall be--
            ``(I) for an employer with not more than 100 employees, the 
        lesser of the amount of the liquidated damages available under 
        subsection (b) or (c), or $2,500;
            ``(II) for an employer with not less than 101 and not more 
        than 200 employees, the lesser of the amount of the liquidated 
        damages available under subsection (b) or (c), or $5,000;
            ``(III) for an employer with not less than 201 and not more 
        than 500 employees, the lesser of the amount of the liquidated 
        damages available under subsection (b) or (c), or $10,000; and
            ``(IV) for an employer with not less than 501 employees, 
        the lesser of the amount of the liquidated damages available 
        under subsection (b) or (c), or $15,000.'';
            (2) in paragraph (3), in the first sentence, by striking 
        ``this subsection'' and inserting ``this subsection (other than 
        paragraph (2)(B)); and
            (3) in paragraph (5)--
                    (A) in the first sentence, by striking ``violations 
                of section 12'' and inserting ``violations of section 
                6(d) or section 12''; and
                    (B) by inserting after the first sentence the 
                following: ``Civil penalties collected for violations 
                of section 6(d) shall be deposited in the account 
                created under section 5(d) of the GAP Act.''.

SEC. 5. STUDY ON HIGH-WAGE, HIGH-DEMAND OCCUPATIONS AND EQUIVALENT PAY.

    (a) Joint Study.--Using funds from the account created under 
subsection (d), the Secretary of Labor, together with the Secretary of 
Education, shall conduct a multistate study, through a grant to a 
nonprofit research institution, that includes strategies to increase 
the participation of women in--
            (1) high-wage, high-demand occupations; and
            (2) industries in which women are underrepresented.
    (b) Comptroller General Study.--Using funds from the account 
created under subsection (d), the Comptroller General of the United 
States shall conduct a multistate study to develop strategies described 
in subsection (a).
    (c) Reports.--Not later than 2 years after the date of enactment of 
this Act--
            (1) the Secretary of Labor and the Secretary of Education 
        shall submit to Congress a report containing--
                    (A) a statement of the findings and conclusions of 
                the study under subsection (a); and
                    (B) any recommendations the Secretary of Labor and 
                the Secretary of Education consider appropriate based 
                on their conclusions;
            (2) the Comptroller General shall submit to Congress a 
        report containing--
                    (A) a statement of the findings and conclusions of 
                the study under subsection (b); and
                    (B) any recommendations the Comptroller General 
                considers appropriate based on its conclusions; and
            (3) the Secretary of Labor, the Secretary of Education, and 
        the Comptroller General shall make available to the public the 
        reports described in this subsection.
    (d) Accounts.--
            (1) In general.--The Secretary of Labor shall create an 
        account to manage the funds required to conduct the studies 
        under subsections (a) and (b) and to complete the reports under 
        subsection (c). The account shall contain the civil penalties 
        collected under section 16(e)(2) of the Fair Labor Standards 
        Act of 1938 (29 U.S.C. 216(e)(2)).
            (2) Withdrawal of funds.--The Secretary of Labor is 
        authorized to withdraw funds from the account created under 
        subsection (d) to carry out the joint study under subsection 
        (a).
            (3) Transfer of funds.--At the request of the Comptroller 
        General, the Secretary of Labor shall transfer to the 
        Comptroller General the funds required to carry out the study 
        under subsection (b).

SEC. 6. SMALL BUSINESS ASSISTANCE.

    (a) Effective Date.--This Act and the amendments made by this Act 
shall take effect on the date that is 6 months after the date of 
enactment of this Act.
    (b) Technical Assistance Materials.--The Secretary of Labor and the 
Equal Employment Opportunity Commission shall jointly develop technical 
assistance materials to assist small businesses in complying with the 
requirements of this Act and the amendments made by this Act.
    (c) Small Businesses.--A small business shall be exempt from the 
provisions of this Act, and the amendments made by this Act, to the 
same extent that such business is exempt from the requirements of the 
Fair Labor Standards Act of 1938 pursuant to clauses (i) and (ii) of 
section 3(s)(1)(A) of such Act (29 U.S.C. 203(s)(1)(A)).

SEC. 7. RULE OF CONSTRUCTION.

    Nothing in this Act, or in any amendment made by this Act, shall 
affect the obligation of employers and employees to fully comply with 
all applicable immigration laws, including any penalties, fines, or 
other sanctions.
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