Sec. 302. Raise labor standards, improve working conditions, and strengthen workers’ bargaining power

3,854 words·~18 min read·/bill/116/hr/4101/ih/section-302

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

In this section— the term covered award means an award of not less than $500,000 made to an entity under a covered infrastructure program by the head of the relevant Federal agency; and the term covered subaward means a subaward of not less than $500,000 made to an entity under a covered infrastructure program by another entity receiving a covered award. The head of a relevant Federal agency shall require an entity applying for a covered award— to represent, to the best of the entity's knowledge and belief, whether there has been any administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Secretary of Labor, rendered against the entity in the preceding 3 years for violations of— the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.); the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 651 et seq.); the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1801 et seq.); the National Labor Relations Act ( 29 U.S.C. 151 et seq.); subchapter IV of chapter 31 of title 40, United States Code (commonly known as the Davis-Bacon Act ); chapter 67 of title 41, United States Code (commonly known as the Service Contract Act );

Executive Order 11246 ( 42 U.S.C. 2000e note; relating to equal employment opportunity), including any amendment to such Executive order; section 503 of the Rehabilitation Act of 1973 ( 29 U.S.C. 793 ); section 4212 of title 38, United States Code; the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2601 et seq.); title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.); the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12101 et seq.); the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 621 et seq.);

Executive Order 13658 (79 Fed. Reg. 9851; relating to establishing a minimum wage for contractors); subsection

(h)of this section; or equivalent State laws, as defined in guidance issued by the Secretary of Labor; and to require any applicant for a covered subaward from the entity— to represent to the best of the applicant's knowledge and belief, whether there has been any administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Secretary of Labor, rendered against the applicant in the preceding 3 years for violations of any of the labor laws listed in paragraph (1); and to update such information not less than every 6 months for the duration of the covered subaward. The head of a relevant Federal agency shall, prior to awarding a covered award, provide an entity that makes a disclosure under subsection (b)(1) an opportunity to report any steps taken to correct a violation of or improve compliance with the labor laws listed in subsection (b)(1), including any agreements entered into by the entity with an enforcement agency. Not later than 180 days after the date of enactment of this Act, the Secretary of Labor shall establish a website that— is available to the public at no cost; indicates each violation disclosed under subsection

(b)or (e)(1) with respect to an entity applying for, or receiving, a covered award or covered subaward until such violation is corrected and the entity is in compliance with all labor laws listed in subsection (b)(1); and is designed to enable interested parties to easily identify entities applying for, or receiving, covered awards or covered subawards that are in violation of any labor laws listed in subsection (b)(1) and steps taken by such entities to correct the violations or improve compliance with such laws. The Secretary of Labor, in consultation with the Director of the Office of Management and Budget and the heads of the relevant Federal agencies, shall include on the website established under paragraph

(1)the ability for all entities that apply for or receive covered awards or covered subawards to fulfill reporting requirements under this section. The heads of the relevant Federal agencies shall provide the Secretary of Labor with the data necessary to maintain the website established under paragraph (1). The head of a relevant Federal agency shall require each entity receiving a covered award or covered subaward to, not later than once every 6 months, update the information provided under paragraph

(1)or (2), as applicable, of subsection (b). The head of a relevant Federal agency, in consultation with the Labor Compliance Advisor designated by such head under subsection

(f)and in coordination with the heads of the other relevant Federal agencies as applicable, shall determine whether any information provided under paragraph

(1)by an entity receiving a covered award warrants corrective action. Such action— may include— an agreement requiring appropriate remedial measures; compliance assistance; resolving issues to avoid further violations; the decision not to exercise an option on assistance awarded or to terminate the assistance awarded; or in coordination with the heads of the other relevant Federal agencies, the decision to debar or suspend the entity from future participation in any of the covered infrastructure programs; and shall include disclosure on the website established under subsection (d). An entity that receives a covered award, in consultation with head of the relevant Federal agency and the Labor Compliance Advisor designated by such head under subsection (f), shall determine whether any information provided under subsection (b)(2) by a recipient of a covered subaward warrants corrective action, including remedial measures, compliance assistance, and resolving issues to avoid further violations. The Secretary of Labor shall, as appropriate, inform the heads of the relevant Federal agencies of investigations by the Secretary of entities receiving covered awards or covered subawards for purposes of determining the appropriateness of actions described in subparagraphs

(A)and

(B)of paragraph (2). Each head of a relevant Federal agency shall designate a senior official to serve as the Labor Compliance Advisor for the agency. The Labor Compliance Advisor shall— meet quarterly with the Deputy Secretary, Deputy Administrator, or equivalent official of the agency with regard to matters covered under this section; work with officials of the agency to promote greater awareness and understanding of— the labor laws listed in subsection (b)(1), including recordkeeping, reporting, and notice requirements under such laws; and best practices for compliance with such laws; advise the head of the relevant Federal agency whether agreements are in place or are otherwise needed to address appropriate remedial measures, compliance assistance, steps to resolve issues to avoid violations of the labor laws listed in subsection (b)(1), or other related matters concerning entities applying for or receiving covered awards or covered subawards; coordinate assistance for entities that apply for or receive covered awards or covered subawards that are seeking help in addressing and preventing violations of such labor laws; in consultation with the Secretary of Labor or other relevant enforcement agencies, provide assistance to the head of the relevant Federal agency regarding appropriate actions to be taken in response to violations, by entities applying for or receiving covered awards or covered subawards, of the labor laws listed in subsection (b)(1) identified prior to or after receipt of such awards, and to address complaints in a timely manner, by— providing assistance to officials of the agency in reviewing the information provided under subsections

(b)and (e)(1), or other information indicating a violation of such a labor law, in order to assess the serious, repeated, willful, or pervasive nature of such violation and evaluate steps entities applying for or receiving covered awards or covered subawards have taken to correct violations of or improve compliance with such laws; helping officials of the agency determine the appropriate response to address violations of the labor laws listed in subsection (b)(1), or other information indicating such violations, particularly serious, repeated, willful, or pervasive violations, including agreements requiring appropriate remedial measures, decisions not to award assistance or exercise an option on an award of assistance, termination of an award of assistance, or referral of details to be posted on the website established under subsection (d); providing assistance to officials of the agency in receiving and responding to, or making referrals of, complaints alleging violations of the labor laws listed in subsection (b)(1) by entities applying for or receiving covered awards or covered subawards; supporting officials of the agency in the coordination of actions taken pursuant to this section to ensure agency-wide consistency, to the extent practicable; and as appropriate, sending information to agency suspension and debarment officials in accordance with agency procedures; consult with the head of the relevant Federal agency, and the Secretary of Labor as necessary, in the development of regulations, policies, and guidance addressing compliance with the labor laws listed in subsection (b)(1) by entities applying for or receiving covered awards or covered subawards; make recommendations to the head of the relevant Federal agency to strengthen agency management of compliance with such labor laws by entities applying for or receiving covered awards or covered subawards; publicly report, on an annual basis, a summary of actions taken by the head of the relevant Federal agency to promote greater compliance with the labor laws listed in subsection (b)(1), including the head's response to serious, repeated, willful, or pervasive violations of such labor laws; and participate in the interagency meetings regularly convened by the Secretary of Labor under subsection (g)(2). Not later than 1 year after the date of enactment of this Act, the Secretary of Labor shall— develop a process— for the Labor Compliance Advisors designated under subsection

(f)to consult with the Secretary of Labor in carrying out the responsibilities of such Advisors under subsection (f)(2)(E); and by which the head of the relevant Federal agencies and Labor Compliance Advisors may give appropriate consideration to determinations and agreements made by the Secretary of Labor and such heads; regularly convene interagency meetings of Labor Compliance Advisors to share and promote best practices for improving compliance with the labor laws listed in subsection (b)(1); and designate an appropriate contact within the Department of Labor with whom the heads of the relevant Federal agencies may consult with respect to requirements and activities under this section. The head of a relevant Federal agency, in coordination with the Secretary of Labor, shall require each entity that has not less than 50 employees and receives a covered award or covered subaward to develop and maintain a workforce diversity program in accordance with this subsection to ensure equal employment opportunity through the recruitment, selection, and advancement of individuals who are qualified for the applicable position and who are individuals with a barrier to employment (including ex-offenders), racial or ethnic minorities, women, disabled individuals, or veterans. A workforce diversity program required under paragraph

(1)of an entity described in such paragraph shall include programs, policies, practices, and procedures that fulfill the purposes of this subsection. Such programs, policies, practices, and procedures shall— contain a diagnostic component that includes more than 1 quantitative analysis designed to evaluate the composition of the workforce of the entity and compare such composition to the composition of other relevant workforces; include action-oriented programs, such as programs for training and outreach; include internal auditing and reporting systems as a means of— measuring the entity’s progress toward achieving a diverse workforce; and monitoring and examining employment decisions and compensation systems to evaluate the impact of those systems on diverse applicants and employees; be incorporated into the entity’s personnel policies, practices, and procedures; be updated annually for the duration of the project assisted by the covered award or covered subaward; and be readily available for reporting to the Secretary for the purposes of compliance review. An entity described in paragraph

(1)shall provide for the implementation of the workforce diversity program required under such paragraph by— assigning responsibility and accountability to an official of the entity; and providing the assigned official with the authority, resources, and support of and access to top management of the entity to ensure the effective implementation of such program. An entity described in paragraph

(1)shall perform an in-depth analysis of the employment process of the entity to determine— whether impediments to equal employment opportunity exist in such process; and if such impediments exist, the aspects of such process in which such impediments exist. An analysis under subparagraph

(A)shall include an analysis of— whether, across different positions of the entity, there are problems of utilization or distribution of individuals who are qualified for such positions and are individuals with a barrier to employment (including ex-offenders), racial or ethnic minorities, women, disabled individuals, or veterans; personnel activity to determine whether there are selection disparities, which such analysis may include an analysis of the number of applications and interviews, hires, terminations, promotions, and other personnel actions of the entity; compensation systems to determine whether there are disparities in compensation; selection, recruitment, referral, and other personnel procedures to determine whether such procedures result in disparities in the employment or advancement of individuals who are qualified for the applicable position and are individuals with a barrier to employment (including ex-offenders), racial or ethnic minorities, women, disabled individuals, or veterans; and any other issue that may impact the success of the workforce diversity program required of the entity under paragraph (1). An entity described in paragraph

(1)shall develop and execute action-oriented programs designed to— correct any problem areas identified under this subsection; and attain established goals and objectives that— require the entity to follow different procedures than those procedures that may have previously produced inadequate results; and demonstrate the entity has made good faith efforts to remove identified barriers to workforce diversity, expand employment opportunities, and produce measurable results to achieve improved workforce diversity. An entity described in paragraph

(1)shall develop and implement an auditing system that periodically measures the effectiveness of the workforce diversity program developed and maintained by the entity under such paragraph. Such system shall include requirements for the entity to— monitor records of all personnel activity, including referrals, placements, transfers, promotions, terminations, and compensation, at all levels of employment with the entity to ensure the workforce diversity program is carried out in accordance with the purposes of this subsection; require internal reporting on a scheduled basis as to the degree to which equal employment opportunity and organizational objectives are attained; review the results of reports required under this subsection with all levels of management of the entity; and advise top management of the entity of the effectiveness of the program and submit recommendations to improve unsatisfactory performance with respect to the program. In determining whether an entity described in paragraph

(1)has complied with the requirements for the workforce diversity program under this subsection, the head of the relevant Federal agency, in coordination with the Secretary of Labor, shall— review the nature and extent of the entity's good faith in carrying out activities under paragraphs (4), (5), and (6), and the appropriateness of those activities to identify equal employment opportunity problems; and analyze statistical data and other non-statistical information to indicate whether employees and applicants of the entity are being treated without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, or disability status. The head of the relevant Federal agency, in coordination with the Secretary of Labor, may provide technical assistance to an entity described in paragraph

(1)to assist such entity in achieving compliance with the requirements under this subsection, which may include an agreement between the head of the relevant Federal agency and the entity requiring appropriate remedial measures. If an entity described in paragraph

(1)remains in noncompliance with the requirements under this subsection following technical assistance under subparagraph (B), the head of the relevant Federal agency, in coordination with the Secretary of Labor and the heads of the other relevant Federal agencies as applicable, may take corrective action against the entity. Such action may include— the decision not to exercise an option on assistance awarded or to terminate the assistance awarded; or in coordination with the heads of the other relevant Federal agencies, the decision to debar or suspend the entity from future participation in any of the covered infrastructure programs. Except as provided in paragraph (3), each head of a relevant Federal agency shall require entities receiving a covered award or a covered subaward to provide each individual described in paragraph

(2)with a document for each pay period containing information concerning, with respect to such individual for such pay period— hours worked, including overtime hours worked; pay, including any additions made to or deductions made from pay; and job classification. An individual described in this paragraph is any individual performing work on a project for an entity, receiving a covered award or covered subaward, that is required to maintain wage records with respect to such individual under— the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.); subchapter IV of chapter 31 of title 40, United States Code (commonly referred to as the Davis-Bacon Act ); chapter 67 of title 41, United States Code (commonly known as the Service Contract Act ); or any applicable State law. A document provided under paragraph

(1)to an individual who is exempt under section 13 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 213 ) from the overtime compensation requirements under section 7 of such Act ( 29 U.S.C. 207 ) shall not be required to include a record of the hours worked by the individual if the entity receiving the covered award or covered subaward informs the individual of the status of such individual as exempt from such overtime compensation requirements. The requirements under this subsection shall be deemed to be satisfied if the entity receiving the covered award or covered subaward complies with State or local requirements that the Secretary of Labor has determined are substantially similar to the requirements under this subsection. If an entity receiving a covered award or covered subaward treats an individual performing work on a project assisted by such award or subaward as an independent contractor, and not as an employee, of the entity, the entity shall provide the individual a document informing the individual of the status of the individual as an independent contractor. Each head of a relevant Federal agency shall require entities receiving a covered award or a covered subaward to provide each individual described in subsection (i)(2), at the time of hiring, a written notice containing each of the following: The name of the entity, including any name used by the entity in conducting business. The physical address of the entity’s main office or principal place of business, and a mailing address, if different from such physical address. The telephone number of the entity. The date on which the individual will regularly receive a paycheck from the entity. The individual's rate of pay, and the basis of that rate, including (as applicable)— by the hour, shift, day, week, salary, piece, or commission; any allowances claimed as part of the minimum wage, including tips and meal or lodging allowances; and overtime rate of pay, including any exemptions from overtime pay. The individual’s job classification, and the prevailing wage for the corresponding class of laborers and mechanics employed on projects of a similar character in the locality in which the work is to be performed. The head of a relevant Federal agency may assess a civil fine, subject to clause (ii), of $500 against an entity that knowingly violates paragraph

(1)for each individual to whom the entity failed to notify in violation of such paragraph. The head of a relevant Federal agency shall, for each year beginning 1 year after the date of enactment of this Act, adjust the amount under clause

(i)for inflation. The failure to provide a notice in compliance with paragraph

(1)shall be a rebuttable presumption that an entity required to provide such notice knowingly violated such paragraph. Except as provided in paragraph (2), an entity receiving a covered award or covered subaward may use the assistance of such award or subaward for costs incurred in maintaining satisfactory relations between the entity and employees of the entity on a project assisted by the award or subaward, including costs of shop stewards, labor management committees, employee publications, and other related activities. No Federal assistance made available under a covered award or covered subaward may be used for costs incurred in— activities undertaken to persuade employees of any entity to exercise or not to exercise, or concerning the manner of such employees in exercising or not exercising, the right to organize and bargain collectively through representatives of the employees' own choosing; or any other activities that are subject to the requirements under section 203(b) of the Labor-Management Reporting and Disclosure Act of 1959 ( 29 U.S.C. 433(b) ). Examples of costs prohibited under subparagraph

(A)include the costs of— preparing and distributing materials for a purpose described in subparagraph (A); hiring or consulting legal counsel or consultants for such purpose; meetings held for such purpose (including paying the salaries of the attendees at such meetings); and planning or conducting activities for such purpose during work hours by managers, supervisors, or labor organization representatives. Each head of a relevant Federal agency shall require entities receiving a covered award to agree that any decision to arbitrate the claim of an employee or independent contractor performing work for a project assisted by the award that arises under title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.) or any tort related to or arising out of sexual assault or sexual harassment may only be made with the voluntary consent of the employee or independent contractor after the dispute arises. Each head of a relevant Federal agency shall require that an entity covered under subparagraph

(A)incorporate the requirement under such subparagraph into each subaward made for a project assisted by the award at any tier under the award. The requirements under paragraph

(1)shall not apply with respect to an employee or independent contractor who— is covered by a collective bargaining agreement negotiated between the entity receiving an award or subaward and a labor organization representing the employee or independent contractor; or except as provided in subparagraph (B), entered into a valid agreement to arbitrate claims described in such paragraph before the entity received the award or subaward described in such paragraph. The requirements under paragraph

(1)shall apply with respect to an employee or independent contractor of an entity receiving a covered award or covered subaward— if the entity receiving the award or subaward is permitted to change the terms of the agreement described in subparagraph (A)(ii) with the employee or independent contractor; or in the event such agreement is renegotiated or replaced after the entity receives the award or subaward. In this section: The term disabled individual has the meaning given such term in section 121. The term individual with a barrier to employment has the meaning given such term in section 3 of the Workforce Innovation and Opportunity Act ( 29 U.S.C. 3102 ). The term veteran has the meaning given such term in section 121.

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