Sec. 6. Administration and enforcement of requirements
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An affected employee aggrieved of a violation of section 3, 4, or 5 by an employer, or the chosen representative of such affected employee, may bring a civil action in accordance with this subsection. A court shall award an affected employee who prevails in a civil action brought under subparagraph (A)— subject to subparagraphs
(C)and (D)— any back pay or unpaid wages due to the employee because of the violation, at a rate of compensation not less than the higher of— the average regular rate received by such employee during the last year of the employee's employment before the violation; or the final regular rate received by such employee before the violation; the cost of any benefits lost under an employee benefit plan described in section 3(3) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1002(3) ) due to the violation, including the cost of medical expenses incurred during an employment loss that would have been covered under an employee benefit plan if the violation had not occurred; and any amounts due the employee under section 4(b)(1)(C); any such amounts as appropriate to remedy any violation of this Act, including any punitive and consequential economic damages, that the court determines appropriate; and any equitable relief, including injunctive relief, the court determines necessary to remedy the violation of this Act, which, for a violation of section 5, may include employment, reinstatement, promotion, or any other appropriate relief. The amount of damages under subparagraph (B)(i) shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed by the employer. The amount of damages— under subparagraph (B)(i)(I) shall be reduced by— any wages paid by the employer to the employee for the period of the violation; any voluntary and unconditional payment by the employer to the employee that is not required by any legal obligation; and any payment by the employer to a third party or trustee (such as premiums for health benefits or payments to a defined contribution pension plan) on behalf of and attributable to the employee for the period of the violation; and under subparagraph (B)(i)(II) may be reduced by crediting the employee with service for all purposes under a defined benefit pensions plan for the period of the violation. An employee or a representative of an employee may bring a civil action under paragraph
(1)on behalf of the employee, other similarly situated employees, or both, in— the judicial district in which the employer has its principal office; or a judicial district in which— the violation is alleged to have occurred; the employment records relevant to such practice are maintained and administered; or the aggrieved individual would have worked but for the alleged unlawful employment practice; and the employer is found. The court shall award an attorney's fee (including expert fees) that the court determines reasonable as part of the costs to a prevailing party in a civil action under paragraph (1). If the Secretary or the attorney general of a State has instituted an enforcement action under subsection (b), an individual employee may not bring an action under this subsection during the pendency of the proceeding against any person with respect to whom the Secretary has instituted the proceeding. The Secretary may bring an action in any court of competent jurisdiction to recover on behalf of an employee remedies described in subsection (a)(1). Any sums recovered by the Secretary on behalf of an employee under subsection (a)(1) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each employee affected. Any such sums not paid to an employee because of inability to do so within a period of 3 years shall be credited as an offsetting collection to the appropriations account of the Secretary for expenses for the administration of this Act and shall remain available to the Secretary until expended. The district courts of the United States shall have jurisdiction, for cause shown, over an action brought by the Secretary to restrain the withholding of payment of back pay, benefits, or other compensation, plus interest, found by the court to be due to employees under this Act. In any case in which the attorney general of a State has reason to believe that an interest of employees of that State has been or is threatened or adversely affected by a violation of this Act, the attorney general of the State may, as parens patriae, bring a civil action on behalf of the employees of the State in an appropriate State court or district court of the United States to obtain any relief described in paragraph (1)(A) on behalf of residents in the State. Any sums recovered by the State shall be administered by the attorney general of the State in the same manner as described in paragraph (1)(B). Any employer who violates the provisions of section 3, 4, or 5 shall be subject to a civil fine, assessed by the Secretary of Labor, of not more than $5,000 for each employee and for each day of such violation. Nothing in paragraph
(1)shall be construed to preclude an employee of an employer assessed a civil fine under such paragraph from bringing a civil action against the employer under subsection (a). If an employer that has violated this Act proves to the satisfaction of the court that the act or omission that violated this Act was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this Act, the court may, in its discretion, reduce the civil fine under this subsection.
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Sec. 6
Administration and enforcement of requirements
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