[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2468 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 2468

To require employers to provide training to employees whose jobs are in 
 danger of being changed or replaced due to technology, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 11, 2019

   Mr. Brown introduced the following bill; which was read twice and 
                  referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
To require employers to provide training to employees whose jobs are in 
 danger of being changed or replaced due to technology, 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 ``Workers' Right to Training Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Affected employee.--The term ``affected employee'' 
        means an employee who may reasonably be expected to experience 
        a change in employment position or an employment loss as a 
        consequence of the use of technology by the employer of the 
        employee.
            (2) Change in employment position.--The term ``change in 
        employment position'' means a material change--
                    (A) in pay or benefits, working conditions, or 
                schedule of an employee; or
                    (B) that results in an unreasonable commute for the 
                employee.
            (3) Committee of employees.--The term ``committee of 
        employees'' means a committee of nonsupervisory, nonmanagerial 
        employees of an employer.
            (4) Employee.--The term ``employee'' means any individual 
        who provides labor or services for remuneration by an employer, 
        unless the employer demonstrates that all of the following 
        conditions are satisfied:
                    (A) The individual is free from the control and 
                direction of the hiring entity in connection with the 
                performance of the work, both under the contract for 
                the performance of the work and in fact.
                    (B) The individual performs work that is outside 
                the usual course of the hiring entity's business.
                    (C) The individual is customarily engaged in an 
                independently established trade, occupation, or 
                business of the same nature as that involved in the 
                work performed.
            (5) Employer.--
                    (A) In general.--The term ``employer'' means any 
                business enterprise, including the nominal employer and 
                any entity that is a parent of, or is integrated with, 
                the business enterprise, that--
                            (i) is engaged in interstate commerce or in 
                        the production of goods or services for 
                        interstate commerce; and
                            (ii) employs not less than 25 employees, 
                        including part-time employees.
                    (B) Multiple employers.--Two or more business 
                enterprises shall each be considered an employer with 
                respect to an employee, if each such business 
                enterprise codetermines or shares control over the 
                employee's essential terms and conditions of 
                employment. In determining whether multiple business 
                enterprises are employers of an employee--
                            (i) it shall be relevant to consider 
                        whether each enterprise has--
                                    (I) direct control and indirect 
                                control over the terms and conditions 
                                of the employee;
                                    (II) reserved authority to control 
                                such terms and conditions; and
                                    (III) control over such terms and 
                                conditions exercised by a person in 
                                fact; and
                            (ii) the existence of indirect control or 
                        reserved authority alone by a business 
                        enterprise may be sufficient to establish the 
                        employer relationship, given specific facts and 
                        circumstances.
                    (C) Definitions.--For the purposes of this 
                paragraph:
                            (i) Integrated.--The term ``integrated'', 
                        when used with respect to a business 
                        enterprise, means a business enterprise whose 
                        relationship with another business enterprise 
                        includes--
                                    (I) common ownership;
                                    (II) common directors or officers;
                                    (III) de facto exercise of control;
                                    (IV) unity of personnel policies 
                                emanating from a common source; or
                                    (V) dependency of operations.
                            (ii) Parent.--The term ``parent'' means a 
                        business enterprise that participates directly 
                        or indirectly in making decisions that affect 
                        employees of another business enterprise.
            (6) Employment loss.--The term ``employment loss'' means--
                    (A) an employment termination, other than a 
                discharge for cause, voluntary departure, or 
                retirement; or
                    (B) a reduction in hours of work of more than 50 
                percent during each month of any 6-month period.
            (7) Institution of higher education.--The term 
        ``institution of higher education'' has the meaning given the 
        term in section 101 of the Higher Education Act of 1965 (20 
        U.S.C. 1001).
            (8) Recognized postsecondary credential.--The term 
        ``recognized postsecondary credential'' has the meaning given 
        the term in section 3 of the Workforce Innovation and 
        Opportunity Act (29 U.S.C. 3102).
            (9) Registered apprenticeship.--The term ``registered 
        apprenticeship'' means an apprenticeship registered under the 
        Act of August 16, 1937 (commonly known as the ``National 
        Apprenticeship Act''; 50 Stat. 664, chapter 663; 29 U.S.C. 50 
        et seq.).
            (10) Representative.--The term ``representative'' means an 
        exclusive representative of employees within the meaning of 
        section 9(a) or 8(f) of the National Labor Relations Act (29 
        U.S.C. 159(a), 158(f)) or section 2 of the Railway Labor Act 
        (45 U.S.C. 152).
            (11) Technology.--
                    (A) In general.--The term ``technology'' means a 
                computerized process used to create value at a business 
                enterprise, including automation, artificial 
                intelligence, robotics, personal computing, information 
                technology, and e-commerce.
                    (B) Regulations.--The Secretary of Labor, in 
                consultation with the Secretary of Commerce, shall 
                promulgate regulations further defining the term 
                ``technology'' for purposes of this Act.

SEC. 3. BARGAINING AND NOTICE REQUIRED BEFORE USE OF EMPLOYMENT-
              CHANGING OR EMPLOYMENT-ELIMINATING TECHNOLOGY.

    (a) Bargaining With Employees Before Use of Employment-Changing or 
Employment-Eliminating Technology.--
            (1) In general.--Not later than 180 days before providing 
        any notices under subsection (b), an employer that intends to 
        use technology that will result in a change in employment 
        position or an employment loss to any employees of the employer 
        shall engage in bargaining with such employees through their 
        chosen representative in order to ensure the technology is 
        procured and implemented in a way that incorporates the skills 
        and roles of the employees of the employer.
            (2) Chosen representatives.--An employer shall carry out 
        the bargaining required under paragraph (1) with--
                    (A) in the case of affected employees who are 
                represented by a labor organization for purposes of 
                collective bargaining, a representative from the labor 
                organization; or
                    (B) in the case of affected employees who are not 
                represented by a labor organization for purposes of 
                collective bargaining, with a committee of employees 
                who are elected by their peers for purposes of the 
                bargaining.
            (3) Mediation upon failure to agree.--
                    (A) Request.--If an employer and the chosen 
                representative of employees are unable to obtain an 
                agreement under paragraph (1) by 180 days after the 
                commencement of the bargaining, the parties shall 
                notify the Federal Mediation and Conciliation Service 
                of the failure to reach agreement and request 
                mediation.
                    (B) Role of service.--The Federal Mediation and 
                Conciliation Service shall, upon receiving a request 
                under subparagraph (A), promptly communicate with the 
                parties and work to bring the parties to agreement 
                through mediation and conciliation.
            (4) Interaction with nlra.--A committee of employees 
        constituted for purposes of this subsection shall not be found 
        to constitute a labor organization, as defined in section 2 of 
        the National Labor Relations Act (29 U.S.C. 152).
    (b) Notice to Employees for Change in Employment Positions.--
            (1) In general.--An employer that intends to use technology 
        that will result in a change in employment position for one or 
        more employees of the employer shall, not later than 180 days 
        before any such change in employment position, provide written 
        notice signed by the employer's authorized representative--
                    (A) of the technology, including a description of 
                the technology, and the impact of the technology on 
                employment positions, including which employment 
                positions will be impacted and whether any new 
                positions will be created; and
                    (B) regarding the required training that the 
                employer will provide under section 4.
            (2) Provision of notice.--The written notice under 
        paragraph (1) shall be--
                    (A) provided to each chosen representative of the 
                affected employees, as of the date of the notice, and 
                to each affected employee;
                    (B) distributed electronically if the employer 
                customarily communicates with its employees through 
                electronic communications; and
                    (C) posted publicly in conspicuous locations in the 
                workplace, including all places where notices to 
                employees are commonly posted by the employer.
    (c) Notice to Employees Subject to an Employment Loss.--An employer 
that intends to use technology that will cause an employment loss for 
one or more employees of the employer shall, not later than 270 days 
before any such employment loss, provide and post written notice that 
includes the information described in subsection (b)(1), in the same 
manner as described in subsection (b)(2).

SEC. 4. REQUIRED TRAINING AND BENEFITS.

    (a) Changes in Employment Position.--
            (1) In general.--An employer who is required under section 
        3(b) to provide notice of technology that will result in a 
        change in employment position and require different skills due 
        to the use of technology for one or more employees shall, 
        beginning not later than 180 days before changing employee 
        positions due to technology, provide on-the-job training 
        described in paragraph (2) to each affected employee who will 
        be impacted by the technology.
            (2) Type of training.--The training provided under 
        paragraph (1) shall--
                    (A) be training that prepares the employee to be 
                able to fulfill the new duties of the position, without 
                regard to the length of time the training will take; 
                and
                    (B) be supplemented, as necessary, by employer-paid 
                training--
                            (i) through a registered apprenticeship 
                        program;
                            (ii) that leads to a recognized 
                        postsecondary credential (which may be an 
                        industry-recognized credential) offered by an 
                        institution of higher education; or
                            (iii) that leads to an industry-recognized 
                        credential offered by a nonprofit organization 
                        that is an eligible provider under section 
                        122(d) of the Workforce Innovation and 
                        Opportunity Act (29 U.S.C. 3152(d)).
    (b) Employment Loss.--
            (1) Priority and training.--An employer who is required 
        under section 3(c) to provide notice of technology that will 
        result in employment loss for one or more employees of the 
        employer shall--
                    (A) give hiring priority to affected employees for 
                any new or open positions of the employer for 1 year 
                after the date of the notice;
                    (B) beginning not later than 180 days before the 
                employment loss, provide job training described in 
                paragraph (2) for not less than 1 year to prepare the 
                employee for--
                            (i) another position with the employer that 
                        provides wages comparable to the employee's 
                        original position; or
                            (ii) an occupation that provides wages 
                        comparable to the employee's original position 
                        with a different employer; and
                    (C) on the day that the employee experiences the 
                employment loss, provide the affected employee with 6 
                months of severance pay, in a total amount equal to 6 
                months of the employee's wages in the employee's prior 
                position.
            (2) Type of training.--
                    (A) In general.--The training provided under 
                paragraph (1) (except for training described in 
                paragraph (1)(B)(ii)) shall be training that is--
                            (i) chosen by the employee; and
                            (ii) provided at the worksite or 
                        supplemented as necessary by employer-paid 
                        training--
                                    (I) through a registered 
                                apprenticeship program; or
                                    (II) that leads to a recognized 
                                postsecondary credential offered by an 
                                institution of higher education.
                    (B) Offsite training rules.--If training required 
                under subparagraph (A) is supplemented by offsite 
                training, then the employer shall permit the employee 
                to participate in that training during work hours, as 
                long as the employee works a minimum of 15 hours a 
                week.
                    (C) Training for a new occupation.--In the case of 
                an employer who chooses to provide training under 
                paragraph (1)(B)(ii) to an affected employee, the 
                employer shall provide the employee with a voucher of 
                $8,000 that the employee may use at any eligible 
                provider of training services under section 122 of the 
                Workforce Innovation and Opportunity Act (29 U.S.C. 
                3152).
    (c) Basic Skills Training.--
            (1) In general.--If an employee subject to a change in 
        employment position or employment loss would need, in addition 
        to job training for a new position, additional basic skills 
        (such as a high school diploma or its equivalent) to meet the 
        requirements for the new employment position, the employer of 
        the employee shall provide the employee with 180 days of 
        training to assist the employee in gaining the minimum basic 
        skills necessary.
            (2) Interaction with other training.--Basic skills training 
        provided to an employee under this subsection, and the 180-day 
        period for its provision, shall be in addition to any other 
        training to which the employee has a right under this Act.
            (3) Location of training.--The basic skills training 
        provided under paragraph (1) may be provided through an on-site 
        or off-site basic skills program.
    (d) No Reduction in Pay.--An employer shall provide any training 
required under subsection (a), (b), or (c) during the affected 
employee's work hours and shall not reduce an employee's pay or 
benefits while the employee is receiving training.
    (e) Social Security Administration Documentation.--An employer that 
provides an affected employee with any compensation under this section 
shall submit documentation to the Social Security Administration to 
ensure that any compensation distributed to employees under this Act is 
allocated to the appropriate calendar year.

SEC. 5. PROTECTIONS FOR EMPLOYEES.

    No employer shall discharge or in any manner discriminate against 
any employee of the employer with respect to the employee's 
compensation, terms, conditions, or other privileges of employment 
because--
            (1) the employee has received training or severance pay 
        under this Act; or
            (2) the employee (or an individual acting at the request of 
        the employee) has--
                    (A) requested new employment for the employee with 
                the employer under this Act; or
                    (B) otherwise asserted or sought to enforce the 
                employee's rights under this Act.

SEC. 6. ADMINISTRATION AND ENFORCEMENT OF REQUIREMENTS.

    (a) Civil Actions Against Employers.--
            (1) Violations of notice, pay, and training requirements.--
                    (A) In general.--An affected employee aggrieved of 
                a violation of section 3, 4, or 5 by an employer, or 
                the chosen representative of such affected employee, 
                may bring a civil action in accordance with this 
                subsection.
                    (B) Remedies.--A court shall award an affected 
                employee who prevails in a civil action brought under 
                subparagraph (A)--
                            (i) subject to subparagraphs (C) and (D)--
                                    (I) any back pay or unpaid wages 
                                due to the employee because of the 
                                violation, at a rate of compensation 
                                not less than the higher of--
                                            (aa) the average regular 
                                        rate received by such employee 
                                        during the last year of the 
                                        employee's employment before 
                                        the violation; or
                                            (bb) the final regular rate 
                                        received by such employee 
                                        before the violation;
                                    (II) the cost of any benefits lost 
                                under an employee benefit plan 
                                described in section 3(3) of the 
                                Employee Retirement Income Security Act 
                                of 1974 (29 U.S.C. 1002(3)) due to the 
                                violation, including the cost of 
                                medical expenses incurred during an 
                                employment loss that would have been 
                                covered under an employee benefit plan 
                                if the violation had not occurred; and
                                    (III) any amounts due the employee 
                                under section 4(b)(1)(C);
                            (ii) any such amounts as appropriate to 
                        remedy any violation of this Act, including any 
                        punitive and consequential economic damages, 
                        that the court determines appropriate; and
                            (iii) any equitable relief, including 
                        injunctive relief, the court determines 
                        necessary to remedy the violation of this Act, 
                        which, for a violation of section 5, may 
                        include employment, reinstatement, promotion, 
                        or any other appropriate relief.
                    (C) Period.--The amount of damages under 
                subparagraph (B)(i) shall be calculated for the period 
                of the violation, up to a maximum of 60 days, but in no 
                event for more than one-half the number of days the 
                employee was employed by the employer.
                    (D) Reductions in liability.--The amount of 
                damages--
                            (i) under subparagraph (B)(i)(I) shall be 
                        reduced by--
                                    (I) any wages paid by the employer 
                                to the employee for the period of the 
                                violation;
                                    (II) any voluntary and 
                                unconditional payment by the employer 
                                to the employee that is not required by 
                                any legal obligation; and
                                    (III) any payment by the employer 
                                to a third party or trustee (such as 
                                premiums for health benefits or 
                                payments to a defined contribution 
                                pension plan) on behalf of and 
                                attributable to the employee for the 
                                period of the violation; and
                            (ii) under subparagraph (B)(i)(II) may be 
                        reduced by crediting the employee with service 
                        for all purposes under a defined benefit 
                        pensions plan for the period of the violation.
            (2) Venue.--An employee or a representative of an employee 
        may bring a civil action under paragraph (1) on behalf of the 
        employee, other similarly situated employees, or both, in--
                    (A) the judicial district in which the employer has 
                its principal office; or
                    (B) a judicial district in which--
                            (i)(I) the violation is alleged to have 
                        occurred;
                            (II) the employment records relevant to 
                        such practice are maintained and administered; 
                        or
                            (III) the aggrieved individual would have 
                        worked but for the alleged unlawful employment 
                        practice; and
                            (ii) the employer is found.
            (3) Attorney's fees.--The court shall award an attorney's 
        fee (including expert fees) that the court determines 
        reasonable as part of the costs to a prevailing party in a 
        civil action under paragraph (1).
            (4) Limitation on private action while action of secretary 
        is pending.--If the Secretary or the attorney general of a 
        State has instituted an enforcement action under subsection 
        (b), an individual employee may not bring an action under this 
        subsection during the pendency of the proceeding against any 
        person with respect to whom the Secretary has instituted the 
        proceeding.
    (b) Enforcement Actions.--
            (1) Actions by the secretary.--
                    (A) Civil actions.--The Secretary may bring an 
                action in any court of competent jurisdiction to 
                recover on behalf of an employee remedies described in 
                subsection (a)(1).
                    (B) Sums recovered.--Any sums recovered by the 
                Secretary on behalf of an employee under subsection 
                (a)(1) shall be held in a special deposit account and 
                shall be paid, on order of the Secretary, directly to 
                each employee affected. Any such sums not paid to an 
                employee because of inability to do so within a period 
                of 3 years shall be credited as an offsetting 
                collection to the appropriations account of the 
                Secretary for expenses for the administration of this 
                Act and shall remain available to the Secretary until 
                expended.
                    (C) Action to compel relief by secretary.--The 
                district courts of the United States shall have 
                jurisdiction, for cause shown, over an action brought 
                by the Secretary to restrain the withholding of payment 
                of back pay, benefits, or other compensation, plus 
                interest, found by the court to be due to employees 
                under this Act.
            (2) State enforcement.--In any case in which the attorney 
        general of a State has reason to believe that an interest of 
        employees of that State has been or is threatened or adversely 
        affected by a violation of this Act, the attorney general of 
        the State may, as parens patriae, bring a civil action on 
        behalf of the employees of the State in an appropriate State 
        court or district court of the United States to obtain any 
        relief described in paragraph (1)(A) on behalf of residents in 
        the State. Any sums recovered by the State shall be 
        administered by the attorney general of the State in the same 
        manner as described in paragraph (1)(B).
    (c) Civil Fines.--
            (1) In general.--Any employer who violates the provisions 
        of section 3, 4, or 5 shall be subject to a civil fine, 
        assessed by the Secretary of Labor, of not more than $5,000 for 
        each employee and for each day of such violation.
            (2) Rule of construction.--Nothing in paragraph (1) shall 
        be construed to preclude an employee of an employer assessed a 
        civil fine under such paragraph from bringing a civil action 
        against the employer under subsection (a).
            (3) Good faith.--If an employer that has violated this Act 
        proves to the satisfaction of the court that the act or 
        omission that violated this Act was in good faith and that the 
        employer had reasonable grounds for believing that the act or 
        omission was not a violation of this Act, the court may, in its 
        discretion, reduce the civil fine under this subsection.

SEC. 7. RULES REGARDING RIGHTS AND REMEDIES.

    (a) Rights and Remedies Not Subject to Waiver.--
            (1) In general.--The rights and remedies provided under 
        this Act (including the right to maintain a civil action) may 
        not be waived, deferred, or lost pursuant to any agreement or 
        settlement other than an agreement or settlement described in 
        paragraph (2).
            (2) Agreement or settlement.--An agreement or settlement 
        referred to in paragraph (1) is an agreement or settlement 
        negotiated by the Secretary, an attorney general of any State, 
        a private attorney on behalf of affected employees, or a 
        designated representative of affected employees under the 
        National Labor Relations Act (29 U.S.C. 151 et seq.) or the 
        Railway Labor Act (45 U.S.C. 151 et seq.).
    (b) Interaction With Other Rights and Remedies.--The rights and 
remedies provided to employees by this Act are in addition to, and not 
in lieu of, any other contractual or statutory rights and remedies of 
the employees, and are not intended to alter or affect such rights and 
remedies, except that the period of notification required by this Act 
shall run concurrently with any period of notification required by 
contract or by any other statute.
    (c) Effect on Other Laws.--The giving of notice pursuant to this 
Act, if done in good faith compliance with this Act, shall not 
constitute a violation of the National Labor Relations Act (29 U.S.C. 
151 et seq.) or the Railway Labor Act (45 U.S.C. 151 et seq.).

SEC. 8. LIMITED REGULATORY AUTHORITY.

    (a) In General.--Except as provided in section 2(11)(B), the 
Secretary of Labor shall not have authority to promulgate regulations 
to carry out this Act. The Secretary of Labor may provide guidance that 
describes--
            (1) the methods by which employers may provide for 
        appropriate service of notice of bargaining period under 
        section 3(a) and notice of change in employment position or 
        loss of employment under subsection (b) or (c) of section 3 to 
        employees and to representatives of employees;
            (2) how an employer may comply with the requirement to 
        publicly post such notice under subsections (b) and (c) of 
        section 3; and
            (3) what constitutes good faith under section 6(c)(3) for 
        employers.
    (b) Methods of Notice to Affected Employees.--The mailing of notice 
to an employee's last known address or inclusion of notice in the 
employee's paycheck will be considered acceptable methods for 
fulfillment of the employer's obligation to give notice to each 
affected employee under subsections (b)(2)(A) and (c) of section 3.

SEC. 9. EXEMPTION OF CERTAIN PAYMENTS RELATED TO EMPLOYMENT LOSS FROM 
              GROSS INCOME.

    (a) In General.--Part III of subchapter B of chapter 1 of the 
Internal Revenue Code of 1986 is amended by inserting after section 103 
the following new section:

``SEC. 103A. CERTAIN PAYMENTS RELATED TO EMPLOYMENT LOSS.

    ``(a) In General.--In the case of an employee who has experienced 
an employment loss, gross income shall not include any of the following 
amounts related to such employment loss:
            ``(1) Any severance pay provided pursuant to section 
        4(b)(1)(C) of the Workers' Right to Training Act.
            ``(2) Any amount received as a voucher for training 
        services pursuant to section 4(b)(2)(C) of such Act.
            ``(3) Any back pay awarded by court pursuant to section 
        6(a)(1)(B)(i)(I) of such Act.
    ``(b) Definitions.--The terms `employee', `employer', and 
`employment loss' have the same meaning given such terms under section 
2 of the Workers' Right to Training Act.''.
    (b) Conforming Amendment.--The table of sections for part III of 
subchapter B of chapter 1 of the Internal Revenue Code of 1986 is 
amended by inserting after the item related to section 103 the 
following new item:

``Sec. 103A. Certain payments related to employment loss.''.
    (c) Effective Date.--The amendments made by this section shall 
apply to taxable years beginning after December 31, 2019.
                                 <all>