[Congressional Record Volume 156, Number 122 (Monday, September 13, 2010)]
[Senate]
[Pages S7040-S7042]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. REID (for himself, Mrs. Boxer, Ms. Cantwell, Mr. Dodd, 
        Mrs. Feinstein, Mrs. Gillibrand, Mr. Harkin, Ms. Klobuchar, Ms. 
        Landrieu, Mrs. McCaskill, Ms. Mikulski, Mrs. Murray, Mrs. 
        Shaheen, and Ms. Stabenow):
  S. 3772. 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; read the 
first time.
  Mr. REID. Mr. President. I ask unanimous consent that the text of the 
bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3772

       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 ``Paycheck Fairness Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Women have entered the workforce in record numbers over 
     the past 50 years.
       (2) Despite the enactment of the Equal Pay Act of 1963, 
     many women continue to earn significantly lower pay than men 
     for equal work. These pay disparities exist in both the 
     private and governmental sectors. In many instances, the pay 
     disparities can only be due to continued intentional 
     discrimination or the lingering effects of past 
     discrimination.
       (3) The existence of such pay disparities--
       (A) depresses the wages of working families who rely on the 
     wages of all members of the family to make ends meet;
       (B) undermines women's retirement security, which is often 
     based on earnings while in the workforce;
       (C) prevents the optimum utilization of available labor 
     resources;
       (D) has been spread and perpetuated, through commerce and 
     the channels and instrumentalities of commerce, among the 
     workers of the several States;
       (E) burdens commerce and the free flow of goods in 
     commerce;
       (F) constitutes an unfair method of competition in 
     commerce;
       (G) leads to labor disputes burdening and obstructing 
     commerce and the free flow of goods in commerce;
       (H) interferes with the orderly and fair marketing of goods 
     in commerce; and
       (I) in many instances, may deprive workers of equal 
     protection on the basis of sex in violation of the 5th and 
     14th amendments.
       (4)(A) Artificial barriers to the elimination of 
     discrimination in the payment of wages on the basis of sex 
     continue to exist decades after the enactment of the Fair 
     Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and the 
     Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.).
       (B) These barriers have resulted, in significant part, 
     because the Equal Pay Act of 1963 has not worked as Congress 
     originally intended. Improvements and modifications to the 
     provisions added by the Act are necessary to ensure that the 
     provisions provide effective protection to those subject to 
     pay discrimination on the basis of their sex.
       (C) Elimination of such barriers would have positive 
     effects, including--
       (i) providing a solution to problems in the economy created 
     by unfair pay disparities;
       (ii) substantially reducing the number of working women 
     earning unfairly low wages, thereby reducing the dependence 
     on public assistance;
       (iii) promoting stable families by enabling all family 
     members to earn a fair rate of pay;
       (iv) remedying the effects of past discrimination on the 
     basis of sex and ensuring that in the future workers are 
     afforded equal protection on the basis of sex; and
       (v) ensuring equal protection pursuant to Congress's power 
     to enforce the 5th and 14th amendments.
       (5) The Department of Labor and the Equal Employment 
     Opportunity Commission have important and unique 
     responsibilities to help ensure that women receive equal pay 
     for equal work.
       (6) The Department of Labor is responsible for--
       (A) collecting and making publicly available information 
     about women's pay;
       (B) ensuring that companies receiving Federal contracts 
     comply with anti-discrimination affirmative action 
     requirements of Executive Order 11246 (relating to equal 
     employment opportunity);
       (C) disseminating information about women's rights in the 
     workplace;
       (D) helping women who have been victims of pay 
     discrimination obtain a remedy; and
       (E) being proactive in investigating and prosecuting equal 
     pay violations, especially systemic violations, and in 
     enforcing all of its mandates.
       (7) The Equal Employment Opportunity Commission is the 
     primary enforcement agency for claims made under the 
     provisions added by the Equal Pay Act of 1963, and issues 
     regulations and guidance on appropriate interpretations of 
     the law.
       (8) With a stronger commitment by the Department of Labor 
     and the Equal Employment Opportunity Commission to their 
     responsibilities, increased information about the provisions 
     added by the Equal Pay Act of 1963, wage data, and more 
     effective remedies, women will be better able to recognize 
     and enforce their rights.
       (9) Certain employers have already made great strides in 
     eradicating unfair pay disparities in the workplace and their 
     achievements should be recognized.

     SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

       (a) Bona Fide Factor Defense and Modification of Same 
     Establishment Requirement.--Section 6(d)(1) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended--
       (1) by striking ``No employer having'' and inserting ``(A) 
     No employer having'';
       (2) by striking ``any other factor other than sex'' and 
     inserting ``a bona fide factor other than sex, such as 
     education, training, or experience''; and
       (3) by inserting at the end the following:
       ``(B) The bona fide factor defense described in 
     subparagraph (A)(iv) shall apply only if the employer 
     demonstrates that such factor (i) is not based upon or 
     derived from a sex-based differential in compensation; (ii) 
     is job-related with respect to the position in question; and 
     (iii) is consistent with business necessity. Such defense 
     shall not apply where the employee demonstrates that an 
     alternative employment practice exists that would serve the 
     same business purpose without producing such differential and 
     that the employer has refused to adopt such alternative 
     practice.
       ``(C) For purposes of subparagraph (A), employees shall be 
     deemed to work in the same establishment if the employees 
     work for the same employer at workplaces located in the same 
     county or similar political subdivision of a State. The 
     preceding sentence shall not be construed as limiting broader 
     applications of the term `establishment' consistent with 
     rules prescribed or guidance issued by the Equal Opportunity 
     Employment Commission.''.
       (b) 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 through ``committee;'' 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;''; and
       (2) by adding at the end the following:
       ``(c) Subsection (a)(3)(B) shall not apply to instances 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 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 section 6(d), including 
     an investigation conducted by the employer. Nothing in this 
     subsection shall be construed to limit the rights of an 
     employee provided under any other provision of law.''.
       (c) Enhanced Penalties.--Section 16(b) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216(b)) is amended--
       (1) by inserting after the first sentence the following: 
     ``Any employer who violates section 6(d) shall additionally 
     be liable for such compensatory damages, or, where the 
     employee demonstrates that the employer acted with malice or 
     reckless indifference, punitive damages as may be 
     appropriate, except that the United States shall not be 
     liable for punitive damages.'';
       (2) in the sentence beginning ``An action to'', by striking 
     ``either of the preceding sentences'' and inserting ``any of 
     the preceding sentences of this subsection'';

[[Page S7041]]

       (3) in the sentence beginning ``No employees shall'', by 
     striking ``No employees'' and inserting ``Except with respect 
     to class actions brought to enforce section 6(d), no 
     employee'';
       (4) by inserting after the sentence referred to in 
     paragraph (3), the following: ``Notwithstanding any other 
     provision of Federal law, any action brought to enforce 
     section 6(d) may be maintained as a class action as provided 
     by the Federal Rules of Civil Procedure.''; and
       (5) in the sentence beginning ``The court in''--
       (A) by striking ``in such action'' and inserting ``in any 
     action brought to recover the liability prescribed in any of 
     the preceding sentences of this subsection''; and
       (B) by inserting before the period the following: ``, 
     including expert fees''.
       (d) Action by Secretary.--Section 16(c) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216(c)) is amended--
       (1) in the first sentence--
       (A) by inserting ``or, in the case of a violation of 
     section 6(d), additional compensatory or punitive damages, as 
     described in subsection (b),'' before ``and the agreement''; 
     and
       (B) by inserting before the period the following: ``, or 
     such compensatory or punitive damages, as appropriate'';
       (2) in the second sentence, by inserting before the period 
     the following: ``and, in the case of a violation of section 
     6(d), additional compensatory or punitive damages, as 
     described in subsection (b)'';
       (3) in the third sentence, by striking ``the first 
     sentence'' and inserting ``the first or second sentence''; 
     and
       (4) in the last sentence--
       (A) by striking ``commenced in the case'' and inserting 
     ``commenced--
       ``(1) in the case'';
       (B) by striking the period and inserting ``; or''; and
       (C) by adding at the end the following:
       ``(2) in the case of a class action brought to enforce 
     section 6(d), on the date on which the individual becomes a 
     party plaintiff to the class action.''.

     SEC. 4. TRAINING.

       The Equal Employment Opportunity Commission and the Office 
     of Federal Contract Compliance Programs, subject to the 
     availability of funds appropriated under section 10, shall 
     provide training to Commission employees and affected 
     individuals and entities on matters involving discrimination 
     in the payment of wages.

     SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND WOMEN.

       (a) Program Authorized.--
       (1) In general.--The Secretary of Labor, after consultation 
     with the Secretary of Education, is authorized to establish 
     and carry out a grant program.
       (2) 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 girls and women.
       (3) 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.
       (4) 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.
       (5) 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 that empowers girls and women. The training 
     provided through the program shall help girls and women 
     strengthen their negotiation skills to allow the girls and 
     women to obtain higher salaries and rates of compensation 
     that are equal to those paid to similarly-situated male 
     employees.
       (b) 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--
       (1) 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
       (2) in the case of the Secretary of Labor, the Workforce 
     Investment Act of 1998 (29 U.S.C. 2801 et seq.), and other 
     programs carried out by the Department of Labor that the 
     Secretary of Labor determines to be appropriate.
       (c) Report.--Not later than 1 year after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     of Labor and 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 Act.

     SEC. 6. RESEARCH, EDUCATION, AND OUTREACH.

       The Secretary of Labor shall conduct studies and provide 
     information to employers, labor organizations, and the 
     general public concerning the means available to eliminate 
     pay disparities between men and women, including--
       (1) conducting and promoting research to develop the means 
     to correct expeditiously the conditions leading to the pay 
     disparities;
       (2) publishing and otherwise making available to employers, 
     labor organizations, professional associations, educational 
     institutions, the media, and the general public the findings 
     resulting from studies and other materials, relating to 
     eliminating the pay disparities;
       (3) sponsoring and assisting State and community 
     informational and educational programs;
       (4) providing information to employers, labor 
     organizations, professional associations, and other 
     interested persons on the means of eliminating the pay 
     disparities;
       (5) recognizing and promoting the achievements of 
     employers, labor organizations, and professional associations 
     that have worked to eliminate the pay disparities; and
       (6) convening a national summit to discuss, and consider 
     approaches for rectifying, the pay disparities.

     SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN 
                   THE WORKPLACE.

       (a) In General.--There is established the Secretary of 
     Labor's National Award for Pay Equity in the Workplace, which 
     shall be awarded, as appropriate, to encourage proactive 
     efforts to comply with section 6(d) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 206(d)).
       (b) Criteria for Qualification.--The Secretary of Labor 
     shall set criteria for receipt of the award, including a 
     requirement that an employer has made substantial effort to 
     eliminate pay disparities between men and women, and deserves 
     special recognition as a consequence of such effort. The 
     Secretary shall establish procedures for the application for 
     and presentation of the award.
       (c) Employer.--In this section, the term ``employer'' 
     includes--
       (1)(A) a corporation, including a nonprofit corporation;
       (B) a partnership;
       (C) a professional association;
       (D) a labor organization; and
       (E) a business entity similar to an entity described in any 
     of subparagraphs (A) through (D);
       (2) an entity carrying out an education referral program, a 
     training program, such as an apprenticeship or management 
     training program, or a similar program; and
       (3) an entity carrying out a joint program, formed by a 
     combination of any entities described in paragraph (1) or 
     (2).

     SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT 
                   OPPORTUNITY COMMISSION.

       Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e-8) is amended by adding at the end the following:
       ``(f)(1) Not later than 18 months after the date of 
     enactment of this subsection, the Commission shall--
       ``(A) complete a survey of the data that is currently 
     available to the Federal Government relating to employee pay 
     information for use in the enforcement of Federal laws 
     prohibiting pay discrimination and, in consultation with 
     other relevant Federal agencies, identify additional data 
     collections that will enhance the enforcement of such laws; 
     and
       ``(B) based on the results of the survey and consultations 
     under subparagraph (A), issue regulations to provide for the 
     collection of pay information data from employers as 
     described by the sex, race, and national origin of employees.
       ``(2) In implementing paragraph (1), the Commission shall 
     have as its primary consideration the most effective and 
     efficient means for enhancing the enforcement of Federal laws 
     prohibiting pay discrimination. For this purpose, the 
     Commission shall consider factors including the imposition of 
     burdens on employers, the frequency of required data 
     collection reports (including which employers should be 
     required to prepare reports), appropriate protections for 
     maintaining data confidentiality, and the most effective 
     format for the data collection reports.''.

     SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY 
                   DATA COLLECTION.

       (a) Bureau of Labor Statistics Data Collection.--The 
     Commissioner of Labor Statistics shall continue to collect 
     data on women workers in the Current Employment Statistics 
     survey.
       (b) Office of Federal Contract Compliance Programs 
     Initiatives.--The Director of the Office of Federal Contract 
     Compliance Programs shall ensure that employees of the 
     Office--
       (1)(A) shall use the full range of investigatory tools at 
     the Office's disposal, including pay grade methodology;
       (B) in considering evidence of possible compensation 
     discrimination--
       (i) shall not limit its consideration to a small number of 
     types of evidence; and
       (ii) shall not limit its evaluation of the evidence to a 
     small number of methods of evaluating the evidence; and
       (C) shall not require a multiple regression analysis or 
     anecdotal evidence for a compensation discrimination case;
       (2) for purposes of its investigative, compliance, and 
     enforcement activities, shall define ``similarly situated 
     employees'' in a way

[[Page S7042]]

     that is consistent with and not more stringent than the 
     definition provided in item 1 of subsection A of section 10-
     III of the Equal Employment Opportunity Commission Compliance 
     Manual (2000), and shall consider only factors that the 
     Office's investigation reveals were used in making 
     compensation decisions; and
       (3) shall reinstate the Equal Opportunity Survey, as 
     required by section 60-2.18 of title 41, Code of Federal 
     Regulations (as in effect on September 7, 2006), designating 
     not less than half of all nonconstruction contractor 
     establishments each year to prepare and file such survey, and 
     shall review and utilize the responses to such survey to 
     identify contractor establishments for further evaluation and 
     for other enforcement purposes as appropriate.
       (c) Department of Labor Distribution of Wage Discrimination 
     Information.--The Secretary of Labor shall make readily 
     available (in print, on the Department of Labor website, and 
     through any other forum that the Department may use to 
     distribute compensation discrimination information), accurate 
     information on compensation discrimination, including 
     statistics, explanations of employee rights, historical 
     analyses of such discrimination, instructions for employers 
     on compliance, and any other information that will assist the 
     public in understanding and addressing such discrimination.

     SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

       (a) Authorization of Appropriations.--There is authorized 
     to be appropriated $15,000,000 to carry out this Act.
       (b) Prohibition on Earmarks.--None of the funds 
     appropriated pursuant to subsection (a) for purposes of the 
     grant program in section 5 of this Act may be used for a 
     congressional earmark as defined in clause 9(e) of rule XXI 
     of the Rules of the House of Representatives.

     SEC. 11. 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 Commissioner of the Equal Employment Opportunity 
     Commission shall jointly develop technical assistance 
     material 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 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. 12. 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.
                                 ______