S. 1115 — Paycheck Fairness Act

This section states congressional findings on the persistence of gender pay disparities—despite the Equal Pay Act of 1963—with women, especially women of color, earning significantly lower pay than men for equal work and roughly 40% of the gap remaining unexplained after controlling for education, occupation, industry, union status, race, ethnicity, and experience. It further finds that such disparities depress family wages, undermine retirement security, burden commerce, and necessitate improvements to enforcement by the Department of Labor and Equal Employment Opportunity Commission while recognizing employers that have reduced pay gaps.

This section enhances enforcement of the Fair Labor Standards Act's (FLSA) equal pay requirements (i.e., prohibition on wage discrimination based on sex for equal work on jobs requiring equal skill, effort, and responsibility performed under similar working conditions) as follows: (1) revises the "factor other than sex" defense in FLSA Section 6(d)(1) to require a "bona fide factor other than sex, such as education, training, or experience," which applies only if job-related, consistent with business necessity, not derived from a sex-based differential, and accounting for the entire pay gap—and does not apply if an alternative practice exists that serves the same business purpose without the differential; (2) deems FLSA employees to work at the "same establishment" if at workplaces for the same employer in the same county or similar political subdivision (without limiting broader Equal Employment Opportunity Commission interpretations); (3) expands FLSA anti-retaliation protections to cover employee inquiries about, discussions of, or disclosures of wages (including to the employer), and prohibits requiring employees to sign wage nondisclosure contracts or waivers (with an exception for employees whose essential job functions involve others' wage data, unless disclosed in response to a complaint or investigation); (4) authorizes compensatory damages, or punitive damages upon a showing of malice or reckless indifference, for equal pay violations in private actions under FLSA Section 16(b) (with no punitive liability for the United States), expressly permits class actions under the Federal Rules of Civil Procedure for such violations, and includes expert fees among recoverable costs; and (5) incorporates compensatory and punitive damages into Department of Labor enforcement actions under FLSA Section 16(c) for equal pay violations, with adjusted statutes of limitations for class action participants.

This section directs the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), subject to the availability of appropriations under section 11, to provide training to Commission employees and affected individuals and entities on matters involving discrimination in the payment of wages.

This section authorizes the Secretary of Labor, after consultation with the Secretary of Education, to establish a competitive grant program for eligible entities—public agencies (e.g., states, local governments in metropolitan statistical areas, state and local educational agencies), private nonprofits, or community-based organizations—to conduct negotiation skills training programs addressing pay disparities, including through outreach to women and girls. It directs the Secretaries of Labor and Education to issue regulations or policy guidance integrating such training, to the extent practicable, into programs under the Elementary and Secondary Education Act of 1965, Carl D. Perkins Career and Technical Education Act of 2006, Higher Education Act of 1965, Workforce Innovation and Opportunity Act, and other appropriate Department of Labor and Education programs. It requires the Secretary of Labor, in consultation with the Secretary of Education, to submit to Congress a report describing and evaluating the program's activities not later than 18 months after enactment and annually thereafter.

This section directs the Secretary of Labor, not later than 18 months after 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 women who are Asian American, Black or African American, Hispanic American or Latino, Native American or Alaska Native, Native Hawaiian or Pacific Islander, and White American). Such activities include (1) conducting research to expeditiously correct conditions leading to pay disparities, with specific attention to women and girls from historically underrepresented and minority groups; (2) publishing and disseminating findings and related materials; (3) sponsoring and assisting state, local, and community informational and educational programs; (4) providing information on eliminating pay disparities; and (5) recognizing achievements of employers, labor organizations, and professional associations in eliminating such disparities. This section further requires the Secretary, acting through the Director of the Women’s Bureau and in coordination with the Commissioner of Labor Statistics, to submit to Congress and publish on a public website, not later than one year after enactment, a report on the gender pay gap in the teenage labor force. The report must (A) examine trends, potential solutions, links to broader wage gaps, and lifetime earnings losses for women (including women of color) in informal and formal jobs; (B) compare average earnings and task types between teenage males and females in such jobs (e.g., babysitting, freelance, retail, restaurant, customer service); (C) include interviews and surveys on early gender-based pay discrepancies; and (D) provide recommendations for addressing pay inequality, work experience disadvantages, standards and best practices, and awareness of pay rates and employment rights for teenage girls.

This section establishes the Secretary of Labor’s National Award for Pay Equity in the Workplace, to be awarded annually to an employer that demonstrates proactive efforts to comply with the equal pay provisions of the Fair Labor Standards Act (i.e., prohibiting wage discrimination on the basis of sex for equal work on jobs requiring equal skill, effort, and responsibility). The Secretary of Labor must establish award criteria—requiring substantial efforts to eliminate pay disparities between men and women deserving special recognition—and procedures for applications and presentations; the term “employer” includes corporations (including nonprofits), partnerships, professional associations, labor organizations, similar entities, education or training programs (e.g., apprenticeships), and joint programs.

This section directs the Equal Employment Opportunity Commission (EEOC), not later than 18 months after enactment, to require private employers with 100 or more employees (including federal contractors and subcontractors) to submit compensation data and other employment-related data (i.e., hiring, termination, and promotion data) disaggregated by sex, race, ethnic identity, and job categories (e.g., those in the EEO-1 form). For each 12-month reporting period, the compensation data must include, for each of 12 specified taxable compensation ranges (e.g., not more than $19,239; not less than $208,000; subject to adjustment for inflation or enforcement needs) and disaggregated by the required categories, (1) the number of employees whose compensation falls within the range and (2) the total hours worked by such employees (with employers of non-overtime-eligible workers permitted to report standard hours of 40 per week for full-time employees or 20 per week for part-time employees, or actual hours). The EEOC must use the data primarily to enhance enforcement of federal pay discrimination laws—including investigations of charges under Title VII of the Civil Rights Act and the Equal Pay Act of 1938 (29 U.S.C. 206(d))—and must annually publish aggregate data disaggregated by industry, occupation, and core based statistical area.

This section requires the Bureau of Labor Statistics to continue collecting data on women workers in the Current Employment Statistics survey; directs the Office of Federal Contract Compliance Programs to ensure its employees (1) use the full range of investigatory tools (including pay grade methodology), consider all relevant evidence without limiting types or methods or requiring multiple regression analysis or anecdotal evidence, (2) define similarly situated employees consistent with the Equal Employment Opportunity Commission Compliance Manual (2000) using only factors revealed in compensation decisions, and (3) implement an annual survey of compensation, hiring, termination, and promotion data from not less than half of nonconstruction contractor establishments for enforcement purposes; and requires the Secretary of Labor to distribute information on compensation discrimination (including statistics, employee rights, historical analyses, and employer compliance instructions) via print, the department website, and other forums.

This section amends the Fair Labor Standards Act of 1938 (FLSA) to insert new section 8 prohibiting employers, with respect to FLSA-covered positions (i.e., employees engaged in commerce or the production of goods for commerce, or employed by enterprises so engaged), from (1) relying on a prospective employee's wage history (i.e., wages paid by current or previous employers) in considering the prospective employee for employment, including as a minimum or maximum criteria; (2) relying on such wage history to determine the prospective employee's wages, except if voluntarily provided by the prospective employee after an employment offer with compensation to support a higher wage; (3) seeking wage history from the prospective employee or current or former employers, except to confirm prior wages after an offer when the prospective employee provides it to support a higher wage; or (4) retaliating against employees or prospective employees opposing these practices or for related discrimination. The section further amends FLSA section 16 (29 U.S.C. 216) to add penalties for violations of new section 8, including civil penalties of $5,000 for a first offense (increased by $1,000 for each subsequent offense, not to exceed $10,000) and liability to each affected employee or prospective employee for special damages up to $10,000 plus attorneys' fees, with collective actions permitted in federal or state court. As a conforming amendment, the section repeals FLSA section 10 (29 U.S.C. 210), which authorized judicial review in U.S. courts of appeals of the Secretary of Labor's orders under section 208 (i.e., minimum wage determinations for Puerto Rico and certain U.S. territories based on industry committee recommendations). (Thus, such orders are no longer judicially reviewable under that provision.)

This section authorizes appropriations of such sums as may be necessary to carry out the Act and prohibits the use of funds appropriated for the grant program under section 5 for congressional earmarks, as defined in clause 9(e) of rule XXI of the Rules of the House of Representatives.

This section (1) sets an effective date for the Act and its amendments of six months after enactment, (2) directs the Secretary of Labor and the Equal Employment Opportunity Commission (EEOC) Commissioner to jointly develop technical assistance materials to assist small enterprises in complying with the Act, and (3) exempts small enterprises from the Act and its amendments to the same extent such enterprises are exempt from the Fair Labor Standards Act of 1938 (FLSA) under 29 U.S.C. 203(s)(1)(A)(i) and (ii). (The FLSA exemptions generally apply to enterprises with an annual gross volume of sales or business done of less than $500,000.)

This section provides that nothing in this Act or its amendments affects employer and employee obligations to comply with applicable immigration laws, including any related penalties, fines, or sanctions.

This section provides that if any provision of the Act or its amendments, or its application to particular persons or circumstances, is held invalid or unconstitutional, the remainder of the Act, its amendments, or their application to other persons or circumstances is not affected.