H.R. 17 — Paycheck Fairness Act

This section amends the Fair Labor Standards Act of 1938 (FLSA) to enhance enforcement of equal pay requirements (i.e., prohibitions on sex-based wage discrimination under section 6(d)) as follows: (1) Adds definitions to section 3(e)—"(z) 'Sex' includes (1) pregnancy, childbirth, or a related medical condition; (2) sexual orientation or gender identity; and (3) sex characteristics, including intersex traits"; "(aa) 'Sexual orientation' includes homosexuality, heterosexuality, and bisexuality"; "(bb) 'Gender identity' means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual's designated sex at birth." (2) Revises section 6(d)(1) by replacing "the opposite sex" with "another"; replacing "any other factor other than sex" with "a bona fide factor other than sex, such as education, training, or experience"; and adding requirements for the bona fide factor defense to apply only if the employer demonstrates the factor is not based on a sex-based differential in compensation, is job-related and consistent with business necessity, and accounts for the entire differential (with no defense if an alternative practice exists that serves the same purpose without the differential); also deems employees to work at the "same establishment" if at workplaces in the same county or similar political subdivision for the same employer (without limiting broader applications under EEOC rules or guidance). (3) Expands section 15(a)(3) anti-retaliation protections to cover opposing any practice made unlawful by the FLSA, inquiring about/discussing/disclosing wages (including why set at a certain rate), and broader charge/complaint/investigation/testimony activities; prohibits requiring employees to sign contracts/waivers barring wage disclosure; and adds section 15(c) clarifying that wage disclosure protections do not apply to employees with essential job functions providing access to others' wage data when disclosing to unauthorized individuals (unless in response to or furtherance of an equal pay complaint, charge, or investigation). (4) Amends section 16(b) to provide for compensatory damages, or punitive damages if malice/reckless indifference is shown, for equal pay violations or related retaliation (except no punitive damages against the United States); expressly authorizes class actions under Federal Rules of Civil Procedure to enforce section 6(d) (notwithstanding other limits on FLSA class actions); and includes expert fees in court discretion for reasonable attorney's fees/costs. (5) Amends section 16(c) to authorize the Secretary of Labor to obtain compensatory/punitive damages (as under 16(b)) for equal pay violations in administrative actions.

This section directs the Equal Employment Opportunity Commission (EEOC) and the Secretary of Labor, acting through the Office of Federal Contract Compliance Programs (OFCCP), to provide training—subject to the availability of funds appropriated under section 11—to their employees and affected individuals and entities on discrimination in the payment of wages.

This section establishes a program under which the Secretary of Labor awards contracts and grants to train employers on how salary negotiation and other wage-setting practices can introduce bias into compensation, including topics such as (1) self-auditing for structural issues; (2) recruitment for diverse applicant pools; (3) salary negotiations resulting in pay disparities; (4) internal equity; (5) market rates and incentives; (6) employee advancement; (7) work assignments; (8) training, development, and promotion; (9) mid- and senior-level hiring impacts; (10) commissions and bonuses; (11) performance reviews and raises; and (12) pay adjustment processes. It further authorizes the Secretary of Labor, after consultation with the Secretary of Education, to make competitive grants to eligible entities—including public agencies (e.g., states, local governments, educational agencies), private nonprofits, and community-based organizations—for negotiation skills training programs to address pay disparities, including outreach to women and girls. The section also directs the Secretaries of Labor and Education to issue regulations or guidance integrating such training, to the extent practicable, into programs under the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.), Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.), Higher Education Act of 1965 (20 U.S.C. 1001 et seq.), Workforce Innovation and Opportunity Act (29 U.S.C. 3101 et seq.), and other appropriate programs. Finally, it requires the Secretary of Labor, in consultation with the Secretary of Education, to submit to Congress, not later than 18 months after enactment and annually thereafter, a report describing activities under the section and evaluating their effectiveness.

This section requires the Secretary of Labor, not later than 18 months after the date of enactment and periodically thereafter, to conduct studies and provide information to employers, labor organizations, and the public on means to eliminate pay disparities between men and women—including Asian American, Black or African American, Hispanic American or Latino, Native American or Alaska Native, Native Hawaiian or Pacific Islander, and White American women—through (1) research to expeditiously correct such conditions, with specific attention to women and girls from historically underrepresented and minority groups; (2) publishing findings and other materials; (3) sponsoring state, local, and community informational and educational programs; (4) providing information to employers, labor organizations, professional associations, and other interested persons; and (5) recognizing achievements of employers, labor organizations, and professional associations. Additionally, the section directs the Secretary, acting through the Director of the Women’s Bureau, to (1) review and synthesize existing research on the gender wage gap among younger workers not later than 12 months after enactment; and (2) request proposals and commission studies to advance knowledge on such gap not later than 36 months after enactment. The review, synthesis, and commissioned studies must be made available on a publicly accessible Department of Labor website.

This section establishes the National Award for Pay Equity in the Workplace, to be awarded annually by the Secretary of Labor, in consultation with the Equal Employment Opportunity Commission, to employers for proactive efforts to comply with the equal pay requirements of the Fair Labor Standards Act (i.e., 29 U.S.C. 206(d), which prohibits sex-based wage discrimination for equal work). The Secretary must set award criteria—including substantial efforts to eliminate pay disparities between men and women—and establish application and presentation procedures. The term "employer" includes corporations, partnerships, professional associations, labor organizations, training programs, and joint programs.

This section requires the Equal Employment Opportunity Commission (EEOC), not later than 24 months after enactment, to provide for the annual collection of compensation data from private employers with 100 or more employees (including federal contractors and subcontractors), disaggregated by sex, race, national origin, and job categories from the EEO-1 form. (1) The EEOC may also require disaggregated data on hiring, termination, and promotions; (2) data collection must prioritize enhancing enforcement of federal pay discrimination laws (e.g., under the Equal Pay Act of 1963, 29 U.S.C. 206(d)), while considering employer burdens, reporting frequency by employer size, data confidentiality, and format—including compensation ranges with employee counts and hours worked per range (with options for exempt employees to report 40 hours/week for full-time or 20 for part-time, adjustable for inflation or enforcement needs); (3) collected data must support EEOC investigations and resource allocation; and (4) the EEOC must publicly release aggregate data every 18 months, disaggregated by industry, occupation, and core based statistical area.

This section reinstates pay equity data collection and related initiatives by directing (1) the Bureau of Labor Statistics to continue collecting data on women workers in the Current Employment Statistics survey; (2) the Office of Federal Contract Compliance Programs to collect compensation data and other employment-related data (including hiring, termination, and promotion data) by demographics from at least half of nonconstruction federal contractors annually, and to review and use such data for enforcement purposes; and (3) the Secretary of Labor to distribute information on compensation discrimination (including statistics, employee rights, historical analyses, employer compliance instructions, and other relevant materials) in print, on the Department of Labor website, and through other forums.

This section amends the Fair Labor Standards Act (FLSA) to prohibit employers from (1) relying on a prospective employee's wage history—including as a minimum or maximum criteria—in considering the employee for a covered position or determining their wages (except if voluntarily provided by the employee after an offer of employment with compensation, to negotiate a higher wage); (2) seeking wage history from the prospective employee or their current or former employer (except to confirm after an offer if the employee provides it to negotiate higher); or (3) retaliating against employees or prospective employees opposing these practices. The section further establishes civil penalties for violations of $5,000 for a first offense (increasing by $1,000 for each subsequent offense, not to exceed $10,000); liability to affected employees or prospective employees for special damages up to $10,000 plus attorneys' fees; and injunctive relief. These may be enforced in federal or state court through individual or collective actions on behalf of similarly situated employees or prospective employees. As a conforming amendment, the section repeals FLSA section 10 (29 U.S.C. 210), which previously authorized judicial review in the courts of appeals of the Secretary of Labor's orders establishing minimum wage rates based on industry committee recommendations under FLSA section 208 (i.e., for certain industries such as those in Puerto Rico and the Virgin Islands). (Thus, such orders are no longer judicially reviewable under that process.)

This section establishes the National Equal Pay Enforcement Task Force, consisting of representatives from the Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ), Department of Labor (DOL), and Office of Personnel Management (OPM). The task force coordinates agency efforts to improve compliance, public education, and enforcement of equal pay laws; investigates pay inequity challenges; advances recommendations to address them; and creates action plans for implementation.

This section authorizes appropriations of such sums as may be necessary to carry out the Act. It prohibits the use of funds appropriated for the grant program in section 4 for congressional earmarks, as defined in clause 9(e) of rule XXI of the Rules of the House of Representatives.

This section (1) establishes an effective date for this Act and its amendments of six months after the date of enactment; (2) directs the Secretary of Labor and the Equal Employment Opportunity Commission (EEOC) to jointly develop technical assistance materials to assist small enterprises in complying with this Act and its amendments; and (3) exempts small enterprises from this Act and its amendments to the same extent such enterprises are exempt from the Fair Labor Standards Act of 1938 (FLSA) pursuant to clauses (i) and (ii) of 29 U.S.C. 203(s)(1)(A) (i.e., enterprises lacking a sufficient nexus to interstate commerce or with annual gross volume of sales made or business done below $500,000, exclusive of separately stated excise taxes at the retail level).

This section requires each employer to post and maintain, in conspicuous places where employee notices are customarily posted, a notice prepared or approved by the Equal Employment Opportunity Commission (EEOC) and the Secretary of Labor regarding the requirements of this Act (or amendments made by the Act), which may be incorporated into existing required notices. The section further requires employers to post electronic copies of the notice on an internal website accessible to employees and to notify employees on that website of the physical posting location.

This section provides a rule of construction clarifying that nothing in this Act or its amendments affects employers' and employees' obligations to comply with all applicable immigration laws, including any related penalties, fines, or sanctions.

This section establishes a severability clause, providing that the invalidation of any provision of the Act, an amendment made by the Act, or its application to particular persons or circumstances does not affect the remainder of the Act, its amendments, or its application to other persons or circumstances.