S. 3865 — BE HEARD in the Workplace Act

This section requires each employer with 15 or more employees to adopt, maintain, and periodically review a comprehensive nondiscrimination policy—covering prohibited discrimination including harassment—beginning not later than one year after enactment. The policy must (1) define prohibited discrimination and behaviors, (2) identify multiple reporting contacts and methods, (3) describe investigation and response procedures, (4) prohibit retaliation, (5) detail confidentiality protections and violation consequences, and (6) include any additional components required by the Equal Employment Opportunity Commission (EEOC); it must be disseminated to employees at hiring and annually (and upon updates), posted prominently including on the employer's website, and provided in plain English and accessible formats for individuals with disabilities or non-English primary languages. Noncompliance is subject to fines of up to $1,000 per separate offense, or not less than $5,000 for repeated or willful violations; the EEOC may promulgate implementing regulations.

This section directs the Commission to promulgate regulations (1) requiring appropriate employers, as determined by the Commission, to provide (A) in-person or other interactive training for each employee on discriminatory behaviors, including harassment, in employment, and (B) training specifically designed for supervisors on preventing and responding to discrimination (including harassment) in employment, including retaliation; and (2) identifying specific elements of such training. The requirements must be based on research on effective training, and the Commission must specify remedies for noncompliance by regulation.

This section directs the Commission to make publicly available, not later than one year after the date of enactment, resource materials on comprehensive nondiscrimination policies and trainings for employers with fewer than 15 employees. The materials include (1) model policies on prohibited discrimination, including harassment, that are easily distributed, written in plain English and accessible formats, define prohibited behaviors with examples, describe investigation and response procedures, prohibit retaliation, and outline consequences; and (2) model trainings that are online, accessible, explain prohibited discrimination and retaliation, promote preventive behaviors and best practices (including industry-specific ones), and address diverse workplace needs. The Commission must design the materials to facilitate customization by individual employers for their specific workplaces.

This section authorizes the Equal Employment Opportunity Commission (EEOC) to (1) reasonably adjust fees charged for education, technical assistance, or training offered through its Technical Assistance Training Institute (established under section 705(j)(1) of the Civil Rights Act of 1964); (2) use materials developed for such programs in any EEOC education and outreach activities; and (3) use the EEOC Education, Technical Assistance, and Training Revolving Fund (established under section 705(k) of the Civil Rights Act) to pay full salaries of employees developing and administering such programs in connection with this Act. (As background, the EEOC provides these services to promote voluntary compliance with equal employment opportunity laws, including Title VII of the Civil Rights Act of 1964.)

This section directs the Commission to establish and periodically convene a harassment prevention task force to study prohibited harassment in employment. The task force must include diverse members such as employee advocates, researchers on organizational culture, employee- and employer-side legal practitioners, diversity experts, harassment survivors, and labor leaders; and perform duties that include identifying prevention strategies, recommending proposals, and providing industry-specific guidance on effective strategies. Not less than once every 5 years, the Commission must publish a report on its website—based on the task force's work—that reviews harassment prevalence (including results from the national survey under §111), recommends federal, state, and local initiatives and legislation, and assesses the effectiveness of anti-harassment policies, investigations, training, and other interventions.

This section directs the Commission to develop and make publicly available, not later than one year after the date of enactment, resource materials for employers to assess the employment climate, including the occurrence of prohibited harassment in employment, to evaluate the effectiveness of their preventive and remedial measures. The materials must include a model survey—designed to assess employees' experiences with prohibited harassment, be fair, unbiased, and scientifically valid to the greatest extent practicable, ensure confidential responses without revealing personally identifiable information, and be inclusive of individuals protected under section 301—which employers may use voluntarily at their own expense; the survey may address harassment prevalence, familiarity with anti-harassment policies, overall employment climate, and related topics. Employers may not require employee participation, and the Commission must periodically review and revise the materials and survey.

This section establishes an Office of Education and Outreach within the Equal Employment Opportunity Commission (EEOC) to (1) conduct outreach and education on prohibited employment discrimination, including harassment, under federal civil rights laws and available resources and remedies; and (2) conduct a multi-year public awareness campaign on the EEOC's purpose, resources to prevent discrimination, complaint filing process, and investigation procedures. Information disseminated under the campaign must be in plain English and accessible for individuals with disabilities and those who primarily speak a language other than English.

This section authorizes appropriations of such sums as may be necessary to the Commission for carrying out its duties and activities, including those authorized under this subtitle.

This section directs the Bureau of the Census, Equal Employment Opportunity Commission (EEOC), and Bureau of Labor Statistics to jointly develop a national prevalence survey on prohibited harassment in employment, to be administered by the Census Bureau not later than one year after enactment and every three years thereafter. The survey must collect information on individuals' beliefs, attitudes, and understanding of such harassment, as well as its prevalence as experienced or observed by individuals, supervisors, and employers, covering bases including sex (with separate disaggregation for sexual orientation, gender identity, pregnancy, childbirth or related medical conditions, sex stereotypes, and sexual-in-nature harassment), race, color, religion, national origin, age, disability, genetic information, and uniformed services status, including interactions among characteristics. Not later than six months after each survey, the agencies must submit a report to the Senate Committee on Health, Education, Labor, and Pensions and the House Committee on Education and the Workforce analyzing prevalence by industry and salary level (across all wage bands) and economic impacts, and make the report publicly available on their websites. The section authorizes appropriations for the Census Bureau as necessary for survey administration and report preparation.

This section directs the Merit Systems Protection Board (MSPB) to submit to the Senate Committee on Health, Education, Labor, and Pensions and the House Committee on Education and the Workforce, not later than one year after enactment and every three years thereafter, a report on prohibited harassment in federal employment that includes (1) the prevalence of associated behaviors among federal employees, disaggregated by wage band; (2) the impact on the federal government in terms of monetary costs, attrition, and morale; (3) the particular impact on federal employees with disabilities; (4) in coordination with the Equal Employment Opportunity Commission's (EEOC) Office of Federal Operations, a description of differences in federal agency policies, strategies, reporting mechanisms, training programs, and other practices for preventing and addressing such harassment; (5) a description of which such practices have prevented, addressed, or reduced harassment; and (6) in coordination with the EEOC's Office of Federal Operations, joint recommendations to federal agencies on preventing and addressing harassment. It authorizes appropriations to MSPB as necessary to carry out this section.

This section directs the United States Commission on Civil Rights to submit a report within one year of enactment to the Senate Committee on Health, Education, Labor, and Pensions and the House Committee on Education and the Workforce examining enforcement trends, barriers, best practices, and recommendations (including on individual liability) for nondiscrimination laws prohibiting harassment, along with changes in harassment experiences since those laws' enactment. The section further requires the Director of the National Institutes of Health (NIH) to enter into an agreement within 60 days of enactment with the National Academies of Sciences, Engineering, and Medicine for a study on preventing and addressing prohibited harassment in employment—including its causes, impacts, training efficacy, risk factors, and institutional change methods—with a report due within one year containing recommendations for Congress, agencies, employers, and researchers, to be made publicly available. Finally, the section requires the NIH Director, in consultation with the Commission and Secretary of Labor and within six months of that report, to fund research (via grants, contracts, or other agreements) addressing gaps identified therein on harassment causes, psychological effects, special populations, mental health risks, sociocultural factors, and prevention measures; and authorizes such sums as necessary for NIH to carry out this research.

This section revises the treatment of tipped employees under the Fair Labor Standards Act of 1938 (FLSA) (i.e., those who customarily and regularly receive more than $30 per month in tips), effective on the first day of the third month after enactment. It (1) increases the required minimum cash wage that employers must pay tipped employees to $3.60 per hour (from $2.13) for the first year, then by $1.50 annually (or the amount necessary to reach the wage under FLSA section 6(a)(1)) until it equals that wage, after which it follows section 6(a)(1); (2) clarifies that tipped employees retain all tips received (with employers required to inform employees of this right); and (3) directs the Secretary of Labor to publish notices in the Federal Register and on the Department of Labor website of each phased wage increase at least 60 days prior. The section further repeals the separate cash wage for tipped employees (i.e., eliminating the tip credit under which employers previously offset the cash wage against tips to meet the full minimum wage) effective one day after the phased wage reaches the full minimum wage under section 6(a)(1), with a conforming repeal of the notice requirement.

This section defines, for purposes of this subtitle, (1) "Director" as the Director of the Women's Bureau of the Department of Labor; and (2) "eligible entity" as a nonprofit organization—including a community-based organization, nonprofit legal aid organization, or labor organization—that provides services and support to workers, including by assisting workers in filing charges of employment discrimination, or an institution of higher education as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).

This section establishes a competitive grant program administered by the Director, in consultation with the Commission, under which eligible entities receive funding to carry out programs preventing and addressing employment discrimination, including harassment. Grant funds may be used for specified activities—such as educating workers on their rights and employers on their obligations, assisting workers with discrimination complaints, establishing workplace and community networks, and monitoring employer compliance—but may not be used for purposes prohibited by the Director through notice-and-comment rulemaking; grants are available for expenditure for up to three years. Eligible entities must submit applications containing a detailed program plan, information on discrimination prevalence and targeted industries or areas, outreach and training descriptions, and performance measurement methods; multiple entities may apply jointly with a designated lead. The Director selects recipients on a competitive basis, giving priority to those serving high-risk industries or geographic areas and demonstrating relevant prior experience, and requires grantees to follow Director guidelines for performance reporting, monitoring, and evaluation.

This section establishes definitions for terms used in this subtitle, including (1) covered client as an eligible client facing legal issues related to harassment or other employment discrimination; (2) eligible client as defined in the Legal Services Corporation Act (42 U.S.C. 2996a) and Legal Services Corporation regulations (i.e., any person financially unable to afford legal assistance); (3) eligible entity as a nonprofit organization or an individual licensed to practice law; and (4) Secretary as the Secretary of Labor.

This section authorizes the Secretary of Labor to award grants to eligible entities for civil legal services related to employment discrimination for covered clients, including advice, representation, assistance with federal, state, local, or private complaint processes, and outreach activities, without regard to clients' citizenship or work authorization status. Eligible entities must apply with descriptions of proposed services, intended clients, capacity (e.g., prior success in employment discrimination cases or serving unrepresented clients), and how services address client needs; the Secretary, in consultation with the Legal Services Corporation, awards grants based on criteria such as entities' understanding of client needs, capacity, knowledge of employment discrimination laws, resource access, service continuity, and other relevant factors, while ensuring equitable distribution to urban and rural poverty areas. Grants are for 1 to 5 years and renewable for up to 2 additional years upon demonstration of effective fund use and potential for scaling, replication, or continuity; not later than 2 years after enactment, the Secretary must report to the Senate Committee on Health, Education, Labor, and Pensions and the House Committee on Education and the Workforce on program implementation, services provided, clients served, and unmet needs for affordable employment discrimination counsel.

This section states the purpose of the subtitle as providing allotments to support a system of advocacy—referred to in the subtitle as a “system”—in each state to protect the legal and human rights of workers in accordance with applicable federal, state, and local employment discrimination laws.

This section establishes definitions for terms used in the subtitle, including "(1) record" to encompass employer or establishment reports on discrimination investigations, statistical data on employment decisions by protected worker characteristics (e.g., race, sex, religion), records required under section 11(c) of the Fair Labor Standards Act (FLSA; 29 U.S.C. 211(c)), and similar records; "(2) Secretary," meaning the Secretary of Labor; and "(3) State," encompassing the 50 states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands.

This section establishes a formula for allotting funds appropriated under section 436 to states for protection and advocacy systems compliant with section 434, including (1) minimum allotments of $200,000 per state and $100,000 per territory (American Samoa, Guam, U.S. Virgin Islands, Northern Mariana Islands) if appropriations total $20 million or more ($150,000 per state and $50,000 per territory if less); (2) proportionate reductions if allotments exceed appropriations; (3) proportionate allocation of any excess funds to increase minimum allotments; and (4) reallotment of unused funds to other states to the extent they can use them (after 30 days' Federal Register notice). If appropriations exceed $24.5 million, the section further reserves up to 2% for technical assistance to compliant systems and requires a grant to an American Indian consortium (in the territory minimum amount under total appropriations of $20 million or more). The section directs payments to compliant state systems (or as specified otherwise), with unobligated funds remaining available for the next fiscal year. (As background, state protection and advocacy systems investigate abuse and neglect of, and advocate for the rights of, individuals with developmental disabilities and similar populations.)

This section requires states to establish a system, administered by a designated private nonprofit lead entity independent of the state and employer interests, to protect and advocate for rights of workers eligible for relief from employment discrimination laws as a condition of receiving allotments under this subtitle. The lead entity may not be redesignated absent good cause, advance notice to the entity and its clients, public comment opportunities in plain English and accessible formats, and appeal rights to the Secretary, with state payment of client notice costs. The system must (1) pursue legal, administrative, or other remedies and provide information and referrals; (2) investigate reported or probable incidents of discrimination, including systemic cases, with authority to access facilities, records, and data; (3) annually develop and submit data-driven goals and priorities to the Secretary; (4) seek annual public comment, including from the EEOC and state antidiscrimination agencies, on goals and activities; (5) maintain a client grievance procedure; (6) access eligible individuals at service locations; (7) access client records within three business days upon authorization; (8) hire and retain qualified staff without state-imposed restrictions on federally funded functions; (9) educate policymakers; and (10) supplement, not supplant, nonfederal funds. This section also directs the Secretary to allot funds to American Indian consortiums acting as systems under this subtitle, requiring coordination with other area systems.

This section establishes administrative requirements for the worker legal assistance systems. Specifically, it (1) requires each system to organize as a private nonprofit entity with a multimember governing board broadly representing those served—where a majority of members are attorneys representing workers, worker advocates, or workers who experienced employment discrimination; limits State chief executive appointments to no more than one-third of members; mandates term limits and filling vacancies within 60 days; (2) authorizes systems to sue States or their agencies on behalf of covered individuals, with any judgment amounts usable only to further the subtitle's purposes (not for legal contractor payments or personal bonuses); (3) directs the Secretary to provide advance public notice and solicit comments on federal onsite reviews, with reports distributed to the State governor and others that include the comments; and (4) requires systems to submit annual reports to the Secretary beginning in the fiscal year after enactment, detailing activities, accomplishments, expenditures, goals and barriers, and public input processes—without disclosing personally identifiable information on assistance recipients.