Sec. 201. Amendment to VAWA
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/bill/113/hr/1229/ih/section-201A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The Violence Against Women Act is amended by adding at the end the following new subtitle: As used in this subtitle, the following definitions apply: The terms employ and State have the meanings given the terms in section 3 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203 ). The term employee means any person employed by an employer. In the case of an individual employed by a public agency, such term means an individual employed as described in section 3(e)(2) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e)(2) ). The term includes a person employed as described in subparagraph
(A)on a full- or part-time basis, for a fixed time period, on a temporary basis, pursuant to a detail, or as a participant in a work assignment as a condition of receipt of Federal or State income-based public assistance. The term employer — means any person engaged in commerce or in any industry or activity affecting commerce who employs fifteen or more individuals; and includes any person acting directly or indirectly in the interest of an employer in relation to an employee, and includes a public agency that employs individuals as described in section 3(e)(2) of the Fair Labor Standards Act of 1938, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization. The term employment benefits means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer or through an employee benefit plan , as defined in section 3(3) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1002(3) ). The term family or household member , used with respect to a person, means a nonabusive individual who is a spouse, former spouse, parent, son or daughter, or person residing or formerly residing in the same dwelling unit as the person. The terms parent and son or daughter have the meanings given the terms in section 101 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611). The term person has the meaning given the term in section 3 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203 ). The term public agency has the meaning given the term in section 3 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203 ). The term public assistance includes cash, food stamps, medical assistance, housing assistance, and other benefits provided on the basis of income by a public agency. The term reduced leave schedule means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee. The term Secretary means the Secretary of Labor. The term victim of domestic violence, dating violence, sexual assault, or stalking includes a person who has been a victim of domestic violence, dating violence, sexual assault, or stalking and a person whose family or household member has been a victim of domestic violence, dating violence, sexual assault, or stalking. The term victim services organization means a nonprofit, nongovernmental organization that provides assistance to victims of domestic violence, dating violence, sexual assault, or stalking, or to advocates for such victims, including a rape crisis center, an organization carrying out a domestic violence program, an organization operating a shelter or providing counseling services, or an organization providing assistance through the legal process. An employee who is a victim of domestic violence, dating violence, sexual assault, or stalking may take leave from work to address domestic violence, dating violence, sexual assault, or stalking, by— seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic violence, dating violence, sexual assault, or stalking to the employee or the employee’s family or household member; obtaining services from a victim services organization for the employee or the employee’s family or household member; obtaining psychological or other counseling for the employee or the employee’s family or household member; participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or the employee’s family or household member from future domestic violence, dating violence, sexual assault, or stalking or ensure economic security; or seeking legal assistance or remedies to ensure the health and safety of the employee or the employee’s family or household member, including preparing for or participating in any civil or criminal legal proceeding related to or derived from domestic violence, dating violence, sexual assault, or stalking. An employee may take not more than 30 days of leave, as described in paragraph (1), in any 12-month period. Leave described in paragraph
(1)may be taken intermittently or on a reduced leave schedule. The employee shall provide the employer with reasonable notice of the employee’s intention to take the leave, unless providing such notice is not practicable. The employer may require the employee to provide certification to the employer, within a reasonable period after the employer requests the certification, that— the employee or the employee’s family or household member is a victim of domestic violence, dating violence, sexual assault, or stalking; and the leave is for one of the purposes enumerated in subsection (a)(1). An employee may satisfy the certification requirement of paragraph
(1)by providing to the employer— a sworn statement of the employee; documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional, from whom the employee or the employee’s family or household member has sought assistance in addressing domestic violence, dating violence, sexual assault, or stalking and the effects of domestic violence, dating violence, sexual assault, or stalking; a police or court record; or other corroborating evidence. All information provided to the employer pursuant to subsection
(b)or (c), including a statement of the employee or any other documentation, record, or corroborating evidence, and the fact that the employee has requested or obtained leave pursuant to this section, shall be retained in the strictest confidence by the employer, except to the extent that disclosure is— requested or consented to by the employee in writing; or otherwise required by applicable Federal or State law. Except as provided in paragraph (2), any employee who takes leave under this section for the intended purpose of the leave shall be entitled, on return from such leave— to be restored by the employer to the position of employment held by the employee when the leave commenced; or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. The taking of leave under this section shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced. Nothing in this subsection shall be construed to entitle any restored employee to— the accrual of any seniority or employment benefits during any period of leave; or any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave. Nothing in this paragraph shall be construed to prohibit an employer from requiring an employee on leave under this section to report periodically to the employer on the status and intention of the employee to return to work. An employer may deny restoration under paragraph
(1)to any employee described in subparagraph
(B)if— such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice. An employee referred to in subparagraph
(A)is a salaried employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed. Except as provided in subparagraph (B), during any period that an employee takes leave under this section, the employer shall maintain coverage under any group health plan (as defined in section 5000(b)(1) of the Internal Revenue Code of 1986) for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave. The employer may recover the premium that the employer paid for maintaining coverage for the employee under such group health plan during any period of leave under this section if— the employee fails to return from leave under this section after the period of leave to which the employee is entitled has expired; and the employee fails to return to work for a reason other than— the continuation of, recurrence of, or onset of an episode of domestic violence, dating violence, sexual assault, or stalking, that entitles the employee to leave pursuant to this section; or other circumstances beyond the control of the employee. An employer may require an employee who claims that the employee is unable to return to work because of a reason described in subclause
(I)or
(II)of subparagraph (B)(ii) to provide, within a reasonable period after making the claim, certification to the employer that the employee is unable to return to work because of that reason. An employee may satisfy the certification requirement of clause
(i)by providing to the employer— a sworn statement of the employee; documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional, from whom the employee or the employee's family or household member has sought assistance in addressing domestic violence, dating violence, sexual assault, or stalking and the effects of domestic violence, dating violence, sexual assault, or stalking; a police or court record; or other corroborating evidence. All information provided to the employer pursuant to subparagraph (C), including a statement of the employee or any other documentation, record, or corroborating evidence, and the fact that the employee is not returning to work because of a reason described in subclause
(I)or
(II)of subparagraph (B)(ii), shall be retained in the strictest confidence by the employer, except to the extent that disclosure is— requested or consented to by the employee; or otherwise required by applicable Federal or State law. It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this section. It shall be unlawful for any employer to discharge or harass any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment of the individual (including retaliation in any form or manner) because the individual— exercised any right provided under this section; or opposed any practice made unlawful by this section. It shall be unlawful for any public agency to deny, reduce, or terminate the benefits of, otherwise sanction, or harass any individual, or otherwise discriminate against any individual (including retaliation in any form or manner) with respect to the amount, terms, or conditions of public assistance of the individual because the individual— exercised any right provided under this section; or opposed any practice made unlawful by this section. It shall be unlawful for any person to discharge or in any other manner discriminate (as described in subparagraph
(B)or
(C)of paragraph (1)) against any individual because such individual— has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this section; has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this section; or has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this section. Any employer that violates subsection
(f)shall be liable to any individual affected— for damages equal to— the amount of— any wages, salary, employment benefits, or other compensation denied or lost to such individual by reason of the violation; or in a case in which wages, salary, employment benefits, or other compensation has not been denied or lost to the individual, any actual monetary losses sustained by the individual as a direct result of the violation; the interest on the amount described in subclause
(I)calculated at the prevailing rate; and an additional amount as liquidated damages equal to the sum of the amount described in subclause
(I)and the interest described in subclause (II), except that if an employer that has violated subsection
(f)proves to the satisfaction of the court that the act or omission that violated subsection
(f)was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of subsection (f), such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under subclauses
(I)and (II), respectively; and for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. An action to recover the damages or equitable relief prescribed in subparagraph
(A)may be maintained against any employer in any Federal or State court of competent jurisdiction by any one or more affected individuals for and on behalf of— the individuals; or the individuals and other individuals similarly situated. The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. The right provided by subparagraph
(B)to bring an action by or on behalf of any affected individual shall terminate— on the filing of a complaint by the Secretary in an action under paragraph
(4)in which restraint is sought of any further delay in the payment of the amount described in subparagraph (A)(i) to such individual by an employer responsible under subparagraph
(A)for the payment; or on the filing of a complaint by the Secretary in an action under paragraph
(2)in which a recovery is sought of the damages described in subparagraph (A)(i) owing to an affected individual by an employer liable under subparagraph (A), unless the action described in clause
(i)or
(ii)is dismissed without prejudice on motion of the Secretary. The Secretary shall receive, investigate, and attempt to resolve complaints of violations of subsection
(f)in the same manner as the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207). The Secretary may bring an action in any court of competent jurisdiction to recover the damages described in paragraph (1)(A)(i). Any sums recovered by the Secretary pursuant to subparagraph
(B)shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each individual affected. Any such sums not paid to such an individual because of inability to do so within a period of 3 years shall be deposited into the Treasury of the United States as miscellaneous receipts. Except as provided in subparagraph (B), an action may be brought under this subsection not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought. In the case of such action brought for a willful violation of subsection (f), such action may be brought within 3 years after the date of the last event constituting the alleged violation for which such action is brought. In determining when an action is commenced by the Secretary under this subsection for the purposes of this paragraph, it shall be considered to be commenced on the date when the complaint is filed. The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary— to restrain violations of subsection (f), including the restraint of any withholding of payment of wages, salary, employment benefits, or other compensation, plus interest, found by the court to be due to affected individuals; or to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion. The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under this subsection. Nothing in this section shall be construed to limit the liability of an employer or public agency to an individual, for harm suffered relating to the individual’s experience of domestic violence, dating violence, sexual assault, or stalking, pursuant to any other Federal or State law, including a law providing for a legal remedy. Notwithstanding any other provision of this subsection, in the case of the Library of Congress, the authority of the Secretary under this subsection shall be exercised by the Librarian of Congress. Notwithstanding any other provision of this subsection, in the case of a public agency that employs individuals as described in subparagraph
(A)or
(B)of section 3(e)(2) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)(2)) (other than an entity of the legislative branch of the Federal Government), subparagraph
(B)shall apply. In the case described in subparagraph (A), the powers, remedies, and procedures provided in the case of a violation of chapter 63 of title 5, United States Code, in that title to an employing agency, in chapter 12 of that title to the Merit Systems Protection Board, or in that title to any person alleging a violation of chapter 63 of that title, shall be the powers, remedies, and procedures this subsection provides in the case of a violation of subsection
(f)to that agency, that Board, or any person alleging a violation of subsection (f), respectively, against an employee who is such an individual. Consistent with regulations prescribed under section 106(d), the President shall ensure that any public agency that violates subsection (f)(1)(C), or subsection (f)(2) by discriminating as described in subsection (f)(1)(C), shall provide to any individual who receives a less favorable amount, term, or condition of public assistance as a result of the violation— the amount of any public assistance denied or lost to such individual by reason of the violation; and the interest on the amount described in clause (i); and such equitable relief as may be appropriate. An employee who is entitled to take paid or unpaid leave (including family, medical, sick, annual, personal, or similar leave) from employment, pursuant to State or local law, a collective bargaining agreement, or an employment benefits program or plan, may elect to substitute any period of such leave for an equivalent period of leave provided under section 41702. A State may use funds provided to the State under part A of title IV of the Social Security Act ( 42 U.S.C. 601 et seq. ) to provide nonrecurrent short-term emergency benefits to an individual for any period of leave the individual takes pursuant to section 41702. In calculating the eligibility of an individual for such emergency benefits, the State shall count only the cash available or accessible to the individual. An individual seeking emergency benefits under subsection
(a)from a State shall submit an application to the State. The State shall provide benefits to an eligible applicant under paragraph
(1)on an expedited basis, and not later than 7 days after the applicant submits an application under paragraph (1). Nothing in this title shall be construed to supersede any provision of any Federal, State, or local law, collective bargaining agreement, or employment benefits program or plan that provides— greater leave benefits for victims of domestic violence, dating violence, sexual assault, or stalking than the rights established under this title; or leave benefits for a larger population of victims of domestic violence, dating violence, sexual assault, or stalking (as defined in such law, agreement, program, or plan) than the victims of domestic violence, dating violence, sexual assault, or stalking covered under this title. The rights established for victims of domestic violence, dating violence, sexual assault, or stalking under this title shall not be diminished by any State or local law, collective bargaining agreement, or employment benefits program or plan. Except as provided in subsections (b), (c), and (d), the Secretary shall issue regulations to carry out this title. The regulations described in paragraph
(1)shall include regulations requiring every employer to post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily placed, a notice, to be prepared or approved by the Secretary, summarizing the provisions of this title and providing information on procedures for filing complaints. The Secretary shall develop such a notice and provide copies to employers upon request without charge. The Librarian of Congress shall prescribe the regulations described in subsection
(a)with respect to employees of the Library of Congress. The regulations prescribed under this subsection shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary under subsection (a). The Office of Personnel Management shall prescribe the regulations described in subsection
(a)with respect to individuals described in subparagraph
(A)or
(B)of section 3(e)(2) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e)(2) ) (other than an individual employed by an entity of the legislative branch of the Federal Government). The regulations prescribed under this subsection shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary under subsection (a). The President shall prescribe the regulations described in subsection
(a)with respect to applicants for and recipients of public assistance, in the case of violations of section 41702(f)(1)(C), or section 41702(f)(2) due to discrimination described in section 41702(f)(1)(C). The regulations prescribed under this subsection shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary under subsection (a). .
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