Changes in existing statutes proposed by the Fair Pay Act of 2007
Last updated September 1, 2007
The following reflects the changes in existing statutory wording that would take place if this bill were to become law (changes in red):
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(h)(1)(A) Except as provided in subparagraph (B), no employer having employees subject to any provision of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex, race, or national origin by paying wages to employees in such establishment in a job that is dominated by employees of a particular sex, race, or national origin at a rate less than the rate at which the employer pays wages to employees in such establishment in another job that is dominated by employees of the opposite sex or of a different race or national origin, respectively, for work on equivalent jobs.
(B) Nothing in subparagraph (A) shall prohibit the payment of different wage rates to employees where such payment is made pursuant to--
(i) a seniority system;
(ii) a merit system;
(iii) a system that measures earnings by quantity or quality of production; or
(iv) a differential based on a bona fide factor other than sex, race, or national origin, such as education, training, or experience, except that this clause shall apply only if--
(I) the employer demonstrates that--
(aa) such factor--
(AA) is job-related with respect to the position in question; or
(BB) furthers a legitimate business purpose, except that this item shall not apply if 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; and
(bb) such factor was actually applied and used reasonably in light of the asserted justification; and
(II) upon the employer succeeding under subclause (I), the employee fails to demonstrate that the differential produced by the reliance of the employer on such factor is itself the result of discrimination on the basis of sex, race, or national origin by the employer.
(C) The Equal Employment Opportunity Commission shall issue guidelines specifying criteria for determining whether a job is dominated by employees of a particular sex, race, or national origin. Such guidelines shall not include a list of such jobs.
(D) An employer who is paying a wage rate differential in violation of subparagraph (A) shall not, in order to comply with the provisions of such subparagraph, reduce the wage rate of any employee.
(2) No labor organization or its agents representing employees of an employer having employees subject to any provision of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1)(A).
(3) For purposes of administration and enforcement of this subsection, any amounts owing to any employee that have been withheld in violation of paragraph (1)(A) shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this section or section 7.
(4) In this subsection:
(A) The term `labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
(B) The term `equivalent jobs' means jobs that may be dissimilar, but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions.
29 U.S.C. § 215. Prohibited acts; prima facie evidence
(a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be unlawful for any person—
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(6) to discriminate against any individual because such individual has opposed any act or practice made unlawful by section 6(h) or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce section 6(h); or
(7) to discharge or in any other manner discriminate against, coerce, intimidate, threaten, or interfere with any employee or any other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee's wages or the wages of any other employee, or because the employee exercised, enjoyed, aided, or encouraged any other person to exercise or enjoy any right granted or protected by section 6(h).
29 U.S.C. § 216. Penalties
(b) Damages; right of action; attorney’s fees and costs; termination of right of action
Any employer who
violates the provisions of section 206
or section 207
of this title shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their unpaid overtime compensation, as
the case may be, and in an additional equal amount as liquidated damages. Any employer who violates
subsection (d) or (h) of section 6 shall additionally be liable for such
compensatory or punitive damages as may be appropriate, except that the United
States shall not be liable for punitive damages. Any employer who
violates the provisions of section 215 (a)(3) paragraphs (3), (6), and (7) of section 15(a) of this title shall be
liable for such legal or equitable relief as may be appropriate to effectuate
the purposes of section 215 (a)(3) paragraphs (3), (6), and (7) of section 15(a) of this title, including
without limitation employment, reinstatement, promotion, and the payment of
wages lost and an additional equal amount as liquidated damages. An action to
recover the liability prescribed in either of the preceding sentences any of the preceding
sentences of this subsection may be maintained against any employer
(including a public agency) in any Federal or State court of competent
jurisdiction by any one or more employees for and in behalf of himself or
themselves and other employees similarly situated. No employee Except with
respect to class actions brought under subsection (f), no employee shall be a party plaintiff to any such action unless he
gives his consent in writing to become such a party and such consent is filed
in the court in which such action is brought. The court in such action in any action brought to recover the liability prescribed in any
of the preceding sentences of this subsection shall,
in addition to any judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney’s fee to be paid by the defendant, and costs of the action.
The right provided by this subsection to bring an action by or on behalf of any
employee, and the right of any employee to become a party plaintiff to any such
action, shall terminate upon the filing of a complaint by the Secretary of
Labor in an action under section 217
of this title in which
(1) restraint is sought of any further delay in the payment of unpaid minimum wages, or the amount of unpaid overtime compensation, as the case may be, owing to such employee under section 206 or section 207 of this title by an employer liable therefor under the provisions of this subsection or
(2) legal
or equitable relief is sought as a result of alleged violations of section 215 (a)(3) paragraphs (3), (6), and
(7) of section 15(a) of this title.
29 U.S.C. § 216. Penalties
(c) Payment of wages and compensation; waiver of claims; actions by the Secretary; limitation of actions
The Secretary is
authorized to supervise the payment of the unpaid minimum wages or the unpaid
overtime compensation owing to any employee or employees under section 206
or section 207
of this title, or, in the case of a violation of subsection (d) or (h) of section
6, additional compensatory or punitive damages and the agreement of any employee to
accept such payment shall upon payment in full constitute a waiver by such
employee of any right he may have under subsection (b) of this section to such
unpaid minimum wages or unpaid overtime compensation and an additional equal
amount as liquidated damages, or such compensatory or punitive damages, as appropriate. The Secretary may
bring an action in any court of competent jurisdiction to recover the amount of
unpaid minimum wages or overtime compensation and an equal amount as liquidated
damages and,
in the case of a violation of subsection (d) or (h) of section 6, additional
compensatory or punitive damages. The right provided by subsection (b) of this
section to bring an action by or on behalf of any employee to recover the
liability specified in the first sentence the first or second sentence of such
subsection and of any employee to become a party plaintiff to any such action
shall terminate upon the filing of a complaint by the Secretary in an action
under this subsection in which a recovery is sought of unpaid minimum wages or unpaid
overtime compensation under sections 206
and 207
of this title or liquidated or other damages provided by this subsection owing
to such employee by an employer liable under the provisions of subsection (b)
of this section, unless such action is dismissed without prejudice on motion of
the Secretary. Any sums thus recovered by the Secretary of Labor on behalf of
an employee pursuant to this subsection shall be held in a special deposit
account and shall be paid, on order of the Secretary of Labor, directly to the
employee or employees affected. Any such sums not paid to an employee because
of inability to do so within a period of three years shall be covered into the
Treasury of the United States as miscellaneous receipts. In determining when an
action is commenced by the Secretary of Labor under this subsection for the
purposes of the statutes of limitations provided in section 255
(a)
of this title, it shall be considered to be commenced in the case of any
individual claimant on the date when the complaint is filed if he is
specifically named as a party plaintiff in the complaint, or if his name did
not so appear, on the subsequent date on which his name is added as a party
plaintiff in such action.
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(f) In any action brought under this section for violation of section 6(h), the court shall, in addition to any other remedies awarded to the prevailing plaintiff or plaintiffs, allow expert fees as part of the costs. Any such action may be maintained as a class action as provided by the Federal Rules of Civil Procedure.
29 U.S.C. § 211. Collection of data
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(c) Records
(1) Every employer subject to any provision of this chapter or of any order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder. The employer of an employee who performs substitute work described in section 207 (p)(3) of this title may not be required under this subsection to keep a record of the hours of the substitute work.
(2)(A) Every employer subject to section 6(h) shall preserve records that document and support the method, system, calculations, and other bases used by the employer in establishing, adjusting, and determining the wage rates paid to the employees of the employer. Every employer subject to section 6(h) shall preserve such records for such periods of time, and shall make such reports from the records to the Equal Employment Opportunity Commission, as shall be prescribed by the Equal Employment Opportunity Commission by regulation or order as necessary or appropriate for the enforcement of the provisions of section 6(h) or any regulation promulgated pursuant to section 6(h).
(B)(i) Every employer subject to section 6(h) that has 25 or more employees on any date during the first or second year after the effective date of this paragraph, or 15 or more employees on any date during any subsequent year after such second year, shall, in accordance with regulations promulgated by the Equal Employment Opportunity Commission under subparagraph (F), prepare and submit to the Equal Employment Opportunity Commission for the year involved a report signed by the president, treasurer, or corresponding principal officer, of the employer that includes information that discloses the wage rates paid to employees of the employer in each classification, position, or job title, or to employees in other wage groups employed by the employer, including information with respect to the sex, race, and national origin of employees at each wage rate in each classification, position, job title, or other wage group.
(ii) The rules and regulations promulgated by the Equal Employment Opportunity Commission under subparagraph (F), relating to the form of such a report, shall include requirements to protect the confidentiality of employees, including a requirement that the report shall not contain the name of any individual employee.
(C) The Equal Employment Opportunity Commission may publish any information and data that the Equal Employment Opportunity Commission obtains pursuant to the provisions of subparagraph (B). The Equal Employment Opportunity Commission may use the information and data for statistical and research purposes, and compile and publish such studies, analyses, reports, and surveys based on the information and data as the Equal Employment Opportunity Commission may consider appropriate.
(D) In order to carry out the purposes of this Act, the Equal Employment Opportunity Commission shall by regulation make reasonable provision for the inspection and examination by any person of the information and data contained in any report submitted to the Equal Employment Opportunity Commission pursuant to subparagraph (B).
(E) The Equal Employment Opportunity Commission shall by regulation provide for the furnishing of copies of reports submitted to the Equal Employment Opportunity Commission pursuant to subparagraph (B) to any person upon payment of a charge based upon the cost of the service.
(F) The Equal Employment Opportunity Commission shall issue rules and regulations prescribing the form and content of reports required to be submitted under subparagraph (B) and such other reasonable rules and regulations as the Equal Employment Opportunity Commission may find necessary to prevent the circumvention or evasion of such reporting requirements. In exercising the authority of the Equal Employment Opportunity Commission under subparagraph (B), the Equal Employment Opportunity Commission may prescribe by general rule simplified reports for employers for whom the Equal Employment Opportunity Commission finds that because of the size of the employers a detailed report would be unduly burdensome.