Sec. 4. Payroll Audit Independent Determination program
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The Administrator shall establish a Payroll Audit Independent Determination program (referred to in this section as the program ) to foster collaboration with employers that inadvertently violate the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ) to voluntarily remedy, within the statute of limitations described in section 6(a) of the Portal-to-Portal Act of 1947 ( 29 U.S.C. 255(a) ), unpaid minimum wages or overtime compensation owed to any affected employee under the Fair Labor Standards Act of 1938.
Not later than 30 days after the date of enactment of this Act, the Administrator shall make available to employers resources for assistance in complying with the Fair Labor Standards Act of 1938, including content regarding wage and hour requirements, which shall be offered online, through printed materials, and through other outreach activities. An employer seeking to participate in the program shall submit an application to the Administrator that includes— materials related to and the results of a self-audit, including— an identification of any practice of such employer identified in a self-audit that may violate a minimum wage or overtime compensation requirement of the Fair Labor Standards Act of 1938; and a list of each employee who may be an affected employee with respect to such violation, including— the period of time such employee would have been affected by such violation; payroll records related to such employee for such period with information on the hours of work performed by such employee; calculations of unpaid minimum wages or overtime compensation owed to such employee under the Fair Labor Standards Act of 1938 with a description of the methodology of such calculation and supporting evidence; and contact information for such employee; an explanation of the scope of potential violations of a minimum wage or overtime compensation requirement of such Act for inclusion in a release of claims under subsection (d); an assurance that any practice of such employer that violates a minimum wage or overtime compensation requirement of the Fair Labor Standards Act of 1938 that is identified in the self-audit has been corrected to comply with such Act; an assurance that such employer has, prior to submitting such application, reviewed the compliance assistance resources made available under paragraph
(1)and all program information, terms, and requirements; an assurance that, on the date of submission of such application, such employer— is not involved in any litigation regarding any practice of such employer that is identified in the self-audit; and has not received any communications from an employee or a representative of an employee seeking to litigate or settle claims related to any such practice; and an assurance that no employee listed in subparagraph (A)(ii) is subject to a prevailing wage requirement under the H–1B, H–2B, or H–2A visa programs, subchapter IV of chapter 31 of title 40, United States Code (commonly referred to as the Davis-Bacon Act ), or chapter 67 of title 41, United States Code (commonly known as the Service Contract Act ). The Administrator shall review each application submitted by an employer under subsection (b)(2). As part of such review, the Administrator shall— as necessary, consult with such employer regarding— the self-audit and supporting materials submitted in the application; and the process for approval of such application and settlement of unpaid minimum wages or overtime compensation owed to any affected employee under the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ); inform such employer in a timely manner and prior to a determination on the approval of the application if additional information is needed to assess the unpaid minimum wages or overtime compensation owed to any affected employee for the violations of such Act identified in the application through the self-audit; and provide such employer an opportunity to amend such application to revise the scope of the practices of such employer that violate a minimum wage or overtime compensation requirement of the Fair Labor Standards Act of 1938 that are identified in the application through self-audit, to update the list of affected employees with respect to the practices at issue in the self-audit, and to update the calculations of unpaid minimum wages or overtime compensation owed to any affected employee as a result of such violations. If the conditions under subparagraph
(B)are satisfied with respect to an application submitted under subsection (b)(2), the Administrator shall— approve the application— in the case the application has not been amended under paragraph (1)(C), not later than 30 days after such submission; or in the case the application has been amended under paragraph (1)(C), not later than 30 days after the date of submission of such amended application; and supervise the settlement under subsection (d), including the payment of any unpaid minimum wages or overtime compensation under the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ) required through such settlement. An application submitted under subsection (b)(2) shall be approved under subparagraph
(A)if— within the scope of the violations identified by the employer through the application or an amendment to the application under paragraph (1)(C), the Administrator verifies that the self-audit and calculation of unpaid minimum wages or overtime compensation owed to any affected employee under the Fair Labor Standards Act of 1938 submitted in such application or amendment are accurate; and the employer submitting the application— is determined to be acting in good faith regarding violations of the Fair Labor Standards Act of 1938 identified in such application or amendment; has not been found by the Administrator or any court of law to have violated a minimum wage or overtime compensation requirement of such Act during the 5 years immediately preceding submission of such application; and has not been approved for participation in the program prior to the submission of such application, unless— such participation was for a distinct violation of the Fair Labor Standards Act of 1938 than the practice identified in the self-audit under subsection (b)(2); and such employer has submitted the necessary materials for the Administrator to verify that such employer is not engaging in the practice addressed by the previous participation of the employer in the program. For each employer that submits an application under subsection (b)(2) that is approved under subsection (c)(2), the Administrator shall— provide to the employer a description of the scope of the potential release of claims for violations of minimum wage or overtime compensation requirements of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ) and a summary of any unpaid minimum wages or overtime compensation owed to each affected employee under such Act for such violations; and issue a release form to each affected employee of such employer that describes the settlement terms, which shall include a written explanation of— the waiver under paragraph (2)(B); and the right of the affected employee receiving the offer for settlement to decline the offer for settlement and preserve any private right of action of the employee to recover any unpaid minimum wages or overtime compensation owed to the employee under the Fair Labor Standards Act of 1938 as a result of such violations. An affected employee offered a settlement through a release form under paragraph (1)(B) may accept or decline the offer. The acceptance by an affected employee of an offer of settlement under subparagraph
(A)shall, upon payment in full of any amounts owed to the employee under the settlement, constitute a waiver by such employee of any right such employee may have under section 16 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216 ) to a private right of action to recover unpaid minimum wages or overtime compensation, including any liquidated damages, for the violations addressed by the settlement. For each affected employee that accepts a settlement through a release form under paragraph (1)(B), the employer shall— pay such employee the full amount of unpaid minimum wages or overtime compensation owed to such employee under the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ) for the violations addressed in the settlement; and submit proof of payment of such full amount to the Administrator. In the case of an application submitted by an employer under subsection (b)(2) and not approved under subsection (c)(2), the Administrator may not— use information submitted in the application in an investigation against the employer; use the fact such employer applied to the program as a basis for any future investigation, except in a case in which the Administrator has reason to believe that the health and safety of an employee is at risk due to an alleged violation related to a requirement enforced by the Secretary involving child labor, agricultural worker protections, or housing or transportation requirements under the H–2A or H–2B visa programs; or communicate to any affected employee of such employer in response to receipt of such application to notify such employee of the private right of action of such employee to resolve potential violations of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ), particularly with respect to the wage practices at issue in the self-audit. The Administrator may not expand the scope of the violations to be investigated or settled through an employer’s participation in the program beyond the violations identified by the employer in the application submitted by the employer under subsection (b)(2) or the amended application submitted by the employer under subsection (c)(1)(C). The Administrator may not require any form of payment by an employer to apply, qualify, or participate in the program. Any information submitted in an application to the program under subsection (b)(2), or an amendment to such application under subsection (c)(1)(C), may not be subject to discovery in a Federal or State court proceeding without the consent of the employer that submitted the application. Section 15(a)(3) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a)(3) ) is amended by inserting before the semicolon the following: , or has accepted or declined to accept an offer for settlement under section 4(d) of the . Ensuring Workers Get PAID Act of 2023
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