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Hot on the Hill: Proposed Legislation as of March 30, 2023

· 6 minute read

· 6 minute read

Ingrid Chawla

Several pieces of proposed legislation introduced in the last the 118th Congress’ first session could significantly alter the American payroll landscape. Bills in committees in the House of Representatives and Senate aim to: provide labor protections to incarcerated workers, eliminate requirements for certain child laborers, target pay discrimination and transparency, alter the definition of tipped employees, exclude employee trainings from working hours, increase the dependent care deduction, and ensure health care for striking or locked-out workers.

Senate Bills in Committee:

S516. The “Fair Wages for Incarcerated Workers Act of 2023,” introduced on February 16, 2023 and currently under review in the Senate Committee on Health, Education, Labor, and Pensions, would require incarcerated workers to be covered under the provisions of the Fair Labor Standards Act (FLSA). This bill would cover both incarcerated persons working for the public agency operating a correctional facility and for a correctional facility operated by a private entity with a contracted arrangement to a public agency.

S671. The “Future Logging Careers Act,” introduced on March 7, 2023 and currently under review in the Senate Committee on Health, Education, Labor, and Pensions, would exempt minor employees aged 16 and 17 from the child labor protections on hazardous employment if they are employed by a logging operation. Such minor employees would be allowed to convert timber into sellable products, assist in the transportation of those products, and construct, repair, or maintain either the roads or camps used in these activities or the machinery used for these activities. The bill explicitly excludes tree-felling as an activity minors are able to engage in. This bill is very similar to HR1397 in the House.

S728. The “Paycheck Fairness Act,” introduced on March 9, 2023 and currently under review in the Senate Committee on Health, Education, Labor, and Pensions, would require employers to establish that pay disparities in the same positions arise from “bona fide factors” other than “sex, such as education, training, or experience”. The employer would be required to prove these disparities are job-related, consistent with business necessity, and that they account for the entire differential in compensation at issue. The bill also fleshes out the non-retaliation clause of the FLSA to include protections for employees that have “made a charge or filed any complaint,” triggered any “investigation, proceeding, or action” against the employer, or “inquired about, discussed, or disclosed the wages of the employee or another employee.” Employers would be prohibited from relying on a prospective employee’s wage history when considering the hiring decision or compensation offer for a prospective employee, nor could they ask for the prospective employee’s wage history until an offer of employment had been made. The bill also expands punitive penalties for employers who violate these clauses.

SS781. This bill, mirrored by HR1612 in the House Committee on Education and the Workforce, was reintroduced from the 117th Congressional session on March 14, 2023 and is currently under review in the Senate Committee on Health, Education, Labor, and Pensions. The bill would remove the words “customarily and regularly” from the FLSA definition of a tipped employee, replacing it with language that negates the pertinence of the duties of the employee as long as employees can be demonstrated to receive the minimum hourly wage through a combination of tips and hourly wages.

House Bills in Committee:

HR1084. The “Flexibility for Workers Education Act,” introduced on February 17, 2023 and currently under review in the House Committee on Education and the Workforce, would exclude time spent “changing clothes or washing at the beginning or end of each workday,” or time spent engaged in employee training or learning from the calculation of hours worked under the FLSA. These hours would be excluded provided that the education is outside of working hours, is voluntary, and does not impact the employees’ continuation of employment or working conditions.

HR1421. The “Improving Child Care for Working Families Act of 2023,” introduced on March 7, 2023 and currently under review in the House Committee on Ways and Means, would increase the tax-free employer-paid dependent care assistance amount from $5,000 to $10,500.

HR1447. The “Striking and Locked Out Workers Healthcare Protection Act,” introduced on March 8, 2023 and currently under review in the House Committee on Education and the Workforce, would bar employers from ejecting striking or locked-out employees from employer-negotiated group health plans. Employers who violate this provision during a lock-out will face a civil penalty of up to $75,000 for each violation, and up to $150,000 if the ejection of an employee coincides with the discharge of an employee or other serious economic harm. Employers who violate this provision during a strike will face a civil penalty of up to $50,000 for each violation, and up to $100,000 if the ejection of an employee coincides with the discharge of an employee or other serious economic harm.  This bill is mirrored by a corresponding bill in the Senate.

HR1524. The “Fairness, Anti-discrimination and Individual Rights Act of 2023,” or “FAIR Act of 2023,” introduced on March 9, 2023 and currently under review in the House Committees on the Judiciary, Oversight and Accountability, Education and the Workforce, and House Administration, would require all federal actions to be conducted without discrimination or preferential treatment on the basis of race, color, or national origin. This would be a fairly broadly sweeping bill that impacts departments such as the Department of Labor, United States Citizenship and Immigration Services, Department of Homeland Security, and others.

HR1598HR1599, and HR1600, are a trio of bills introduced on March 14, 2023 and are currently under review in the House Committee on Education and the Workforce. These bills aim to reduce pay disparities in the workforce. The “Fair Pay Act” would allow women to demonstrate that some or all of a pay disparity is based on gender segregation in comparable jobs; “Pay Equity for All Act” would bar employers from asking for a potential employee’s salary history; and the “Salary Transparency Act” would require employers to outline the salary range for jobs when seeking to hire new employees.

 

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