Sec. 5. Wage history; discussion of wages
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The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended by inserting after section 7 the following new section: It shall be an unlawful practice for a person after the date of enactment of the Wage Equity Act of 2021— to rely on the wage history of a prospective employee— in considering the prospective employee for employment, including by requiring that the wage history of a prospective employee satisfies minimum or maximum criteria as a condition of being considered for employment; or in determining the rate of wage for such prospective employee; or to seek, or to require a prospective employee to disclose, the wage history of such prospective employee.
Subsection (a)(1) shall not apply with respect to a prospective employee who voluntarily discloses the wage history of such prospective employee. Notwithstanding subsection (a)(2), a person may take actions necessary to verify the wage history of a prospective employee if such wage history is voluntarily disclosed to the person by such prospective employee. Subsection
(a)shall not apply with respect to the wage history of an employee acquired by an employer before the date of enactment of the Wage Equity Act of 2021, including a current employee’s wage history with another employer that was requested and used to set an employee’s starting wage before such date and which is embedded in an employee’s pay and pay increases after such date. Subject to subsection (c), it shall be an unlawful practice for an employer— to prohibit an employee from inquiring about, discussing, or disclosing the wage of— the employee; or any other employee of the employer if such employee has voluntarily disclosed the wage of such employee; to prohibit an employee from requesting from the employer an explanation of differentials in compensation among employees; or to take an adverse employment action against an employee for— conduct described under paragraphs
(1)or (2); or encouraging employees to engage in conduct described in such paragraphs. An employer may impose reasonable time, place, and manner limitations on conduct described under subsection
(c)if such limitations are written and available to each employee. An employer may prohibit an employee from discussing the wages of any other employee if such other employee did not voluntarily disclose such wages to the employee discussing such wages. Nothing in this section shall be construed to prevent a person from— inquiring about the pay expectations of a prospective employee; or providing information to such employee about the compensation and benefits offered in relation to the position. . Section 2 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 202 ) is amended by adding at the end the following: the term prospective employee means an individual who took an affirmative step to seek employment with a person and who is not currently employed by such person, a parent, subsidiary, predecessor, or related company of such person, or an employer connected by a purchase agreement with such person; and the term wage history means the wages paid to the prospective employee by the prospective employee’s current employer or any previous employer of such employee. . Section 15(a)(3) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a)(3) ) is amended— by inserting or prospective employee after any employee ; and by inserting or prospective employee after such employee . Section 16(b) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(b) ) is amended by inserting Any person who violates the provisions of section 8 with respect to an employee or prospective employee shall be liable to such employee in an amount equal to the difference between the amount that the employee or prospective employee would have received but for such violation and the amount received by such employee or prospective employee, and an additional equal amount as liquidated damages. after tips unlawfully kept by the employer, and in an additional equal amount as liquidated damages. . Section 16(e)(2) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(e)(2) ) is amended by striking 6 and 7 and inserting 6, 7, and 8 .
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