A Bill: 116 Congress 2 S
A Bill: 116 Congress 2 S
A Bill: 116 Congress 2 S
116TH CONGRESS
2D SESSION
H. R. 8977
To require employers to provide training to employees whose jobs are in
danger of being changed or replaced due to technology, and for other
purposes.
A BILL
To require employers to provide training to employees whose
jobs are in danger of being changed or replaced due
to technology, and for other purposes.
7 In this Act:
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1 (1) AFFECTED EMPLOYEE.—The term ‘‘af-
2 fected employee’’ means an employee who may rea-
3 sonably be expected to experience a change in em-
4 ployment position or an employment loss as a con-
5 sequence of the use of technology by the employer of
6 the employee.
7 (2) CHANGE IN EMPLOYMENT POSITION.—The
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1 the contract for the performance of the work
2 and in fact.
3 (B) The individual performs work that is
4 outside the usual course of the hiring entity’s
5 business.
6 (C) The individual is customarily engaged
7 in an independently established trade, occupa-
8 tion, or business of the same nature as that in-
9 volved in the work performed.
10 (5) EMPLOYER.—
11 (A) IN GENERAL.—The term ‘‘employer’’
12 means any business enterprise, including the
13 nominal employer and any entity that is a par-
14 ent of, or is integrated with, the business enter-
15 prise, that—
16 (i) is engaged in interstate commerce
17 or in the production of goods or services
18 for interstate commerce; and
19 (ii) employs not less than 25 employ-
20 ees, including part-time employees.
21 (B) MULTIPLE EMPLOYERS.—Two or more
22 business enterprises shall each be considered an
23 employer with respect to an employee, if each
24 such business enterprise codetermines or shares
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1 conditions of employment. In determining
2 whether multiple business enterprises are em-
3 ployers of an employee—
4 (i) it shall be relevant to consider
5 whether each enterprise has—
6 (I) direct control and indirect
7 control over the terms and conditions
8 of the employee;
9 (II) reserved authority to control
10 such terms and conditions; and
11 (III) control over such terms and
12 conditions exercised by a person in
13 fact; and
14 (ii) the existence of indirect control or
15 reserved authority alone by a business en-
16 terprise may be sufficient to establish the
17 employer relationship, given specific facts
18 and circumstances.
19 (C) DEFINITIONS.—For the purposes of
20 this paragraph:
21 (i) INTEGRATED.—The term ‘‘inte-
22 grated’’, when used with respect to a busi-
23 ness enterprise, means a business enter-
24 prise whose relationship with another busi-
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1 (I) common ownership;
2 (II) common directors or officers;
3 (III) de facto exercise of control;
4 (IV) unity of personnel policies
5 emanating from a common source; or
6 (V) dependency of operations.
7 (ii) PARENT.—The term ‘‘parent’’
8 means a business enterprise that partici-
9 pates directly or indirectly in making deci-
10 sions that affect employees of another
11 business enterprise.
12 (6) EMPLOYMENT LOSS.—The term ‘‘employ-
13 ment loss’’ means—
14 (A) an employment termination, other than
15 a discharge for cause, voluntary departure, or
16 retirement; or
17 (B) a reduction in hours of work of more
18 than 50 percent during each month of any 6-
19 month period.
20 (7) INSTITUTION OF HIGHER EDUCATION.—The
POSTSECONDARY
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1 tial’’ has the meaning given the term in section 3 of
2 the Workforce Innovation and Opportunity Act (29
3 U.S.C. 3102).
4 (9) REGISTERED APPRENTICESHIP.—The term
5 ‘‘registered apprenticeship’’ means an apprenticeship
6 registered under the Act of August 16, 1937 (com-
7 monly known as the ‘‘National Apprenticeship Act’’;
8 50 Stat. 664, chapter 663; 29 U.S.C. 50 et seq.).
9 (10) REPRESENTATIVE.—The term ‘‘represent-
10 ative’’ means an exclusive representative of employ-
11 ees within the meaning of section 9(a) or 8(f) of the
12 National Labor Relations Act (29 U.S.C. 159(a),
13 158(f)) or section 2 of the Railway Labor Act (45
14 U.S.C. 152).
15 (11) TECHNOLOGY.—
16 (A) IN GENERAL.—The term ‘‘technology’’
17 means a computerized process used to create
18 value at a business enterprise, including auto-
19 mation, artificial intelligence, robotics, personal
20 computing, information technology, and e-com-
21 merce.
22 (B) REGULATIONS.—The Secretary of
23 Labor, in consultation with the Secretary of
24 Commerce, shall promulgate regulations further
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1 defining the term ‘‘technology’’ for purposes of
2 this Act.
3 SEC. 3. BARGAINING AND NOTICE REQUIRED BEFORE USE
4 OF EMPLOYMENT-CHANGING OR EMPLOY-
5 MENT-ELIMINATING TECHNOLOGY.
7 EMPLOYMENT-CHANGING OR EMPLOYMENT-ELIMINATING
8 TECHNOLOGY.—
9 (1) IN GENERAL.—Not later than 180 days be-
10 fore providing any notices under subsection (b), an
11 employer that intends to use technology that will re-
12 sult in a change in employment position or an em-
13 ployment loss to any employees of the employer shall
14 engage in bargaining with such employees through
15 their chosen representative in order to ensure the
16 technology is procured and implemented in a way
17 that incorporates the skills and roles of the employ-
18 ees of the employer.
19 (2) CHOSEN REPRESENTATIVES.—An employer
20 shall carry out the bargaining required under para-
21 graph (1) with—
22 (A) in the case of affected employees who
23 are represented by a labor organization for pur-
24 poses of collective bargaining, a representative
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1 (B) in the case of affected employees who
2 are not represented by a labor organization for
3 purposes of collective bargaining, with a com-
4 mittee of employees who are elected by their
5 peers for purposes of the bargaining.
6 (3) MEDIATION UPON FAILURE TO AGREE.—
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1 (b) NOTICE TO EMPLOYEES FOR CHANGE IN EM-
2 PLOYMENT POSITIONS.—
3 (1) IN GENERAL.—An employer that intends to
4 use technology that will result in a change in em-
5 ployment position for one or more employees of the
6 employer shall, not later than 180 days before any
7 such change in employment position, provide written
8 notice signed by the employer’s authorized rep-
9 resentative—
10 (A) of the technology, including a descrip-
11 tion of the technology, and the impact of the
12 technology on employment positions, including
13 which employment positions will be impacted
14 and whether any new positions will be created;
15 and
16 (B) regarding the required training that
17 the employer will provide under section 4.
18 (2) PROVISION OF NOTICE.—The written notice
19 under paragraph (1) shall be—
20 (A) provided to each chosen representative
21 of the affected employees, as of the date of the
22 notice, and to each affected employee;
23 (B) distributed electronically if the em-
24 ployer customarily communicates with its em-
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1 (C) posted publicly in conspicuous loca-
2 tions in the workplace, including all places
3 where notices to employees are commonly post-
4 ed by the employer.
5 (c) NOTICE TO EMPLOYEES SUBJECT TO AN EM-
6 PLOYMENT LOSS.—An employer that intends to use tech-
7 nology that will cause an employment loss for one or more
8 employees of the employer shall, not later than 270 days
9 before any such employment loss, provide and post written
10 notice that includes the information described in sub-
11 section (b)(1), in the same manner as described in sub-
12 section (b)(2).
13 SEC. 4. REQUIRED TRAINING AND BENEFITS.
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1 (A) be training that prepares the employee
2 to be able to fulfill the new duties of the posi-
3 tion, without regard to the length of time the
4 training will take; and
5 (B) be supplemented, as necessary, by em-
6 ployer-paid training—
7 (i) through a registered apprentice-
8 ship program;
9 (ii) that leads to a recognized postsec-
10 ondary credential (which may be an indus-
11 try-recognized credential) offered by an in-
12 stitution of higher education; or
13 (iii) that leads to an industry-recog-
14 nized credential offered by a nonprofit or-
15 ganization that is an eligible provider
16 under section 122(d) of the Workforce In-
17 novation and Opportunity Act (29 U.S.C.
18 3152(d)).
19 (b) EMPLOYMENT LOSS.—
20 (1) PRIORITY AND TRAINING.—An employer
21 who is required under section 3(c) to provide notice
22 of technology that will result in employment loss for
23 one or more employees of the employer shall—
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1 (A) give hiring priority to affected employ-
2 ees for any new or open positions of the em-
3 ployer for 1 year after the date of the notice;
4 (B) beginning not later than 180 days be-
5 fore the employment loss, provide job training
6 described in paragraph (2) for not less than 1
7 year to prepare the employee for—
8 (i) another position with the employer
9 that provides wages comparable to the em-
10 ployee’s original position; or
11 (ii) an occupation that provides wages
12 comparable to the employee’s original posi-
13 tion with a different employer; and
14 (C) on the day that the employee experi-
15 ences the employment loss, provide the affected
16 employee with 6 months of severance pay, in a
17 total amount equal to 6 months of the employ-
18 ee’s wages in the employee’s prior position.
19 (2) TYPE OF TRAINING.—
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1 (ii) provided at the worksite or supple-
2 mented as necessary by employer-paid
3 training—
4 (I) through a registered appren-
5 ticeship program; or
6 (II) that leads to a recognized
7 postsecondary credential offered by an
8 institution of higher education.
9 (B) OFFSITE TRAINING RULES.—If train-
10 ing required under subparagraph (A) is supple-
11 mented by offsite training, then the employer
12 shall permit the employee to participate in that
13 training during work hours, as long as the em-
14 ployee works a minimum of 15 hours a week.
15 (C) TRAINING FOR A NEW OCCUPATION.—
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1 (1) IN GENERAL.—If an employee subject to a
2 change in employment position or employment loss
3 would need, in addition to job training for a new po-
4 sition, additional basic skills (such as a high school
5 diploma or its equivalent) to meet the requirements
6 for the new employment position, the employer of
7 the employee shall provide the employee with 180
8 days of training to assist the employee in gaining
9 the minimum basic skills necessary.
10 (2) INTERACTION WITH OTHER TRAINING.—
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1 ployee with any compensation under this section shall sub-
2 mit documentation to the Social Security Administration
3 to ensure that any compensation distributed to employees
4 under this Act is allocated to the appropriate calendar
5 year.
6 SEC. 5. PROTECTIONS FOR EMPLOYEES.
20 QUIREMENTS.
23 ING REQUIREMENTS.—
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1 an employer, or the chosen representative of
2 such affected employee, may bring a civil action
3 in accordance with this subsection.
4 (B) REMEDIES.—A court shall award an
5 affected employee who prevails in a civil action
6 brought under subparagraph (A)—
7 (i) subject to subparagraphs (C) and
8 (D)—
9 (I) any back pay or unpaid wages
10 due to the employee because of the
11 violation, at a rate of compensation
12 not less than the higher of—
13 (aa) the average regular rate
14 received by such employee during
15 the last year of the employee’s
16 employment before the violation;
17 or
18 (bb) the final regular rate
19 received by such employee before
20 the violation;
21 (II) the cost of any benefits lost
22 under an employee benefit plan de-
23 scribed in section 3(3) of the Em-
24 ployee Retirement Income Security
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1 to the violation, including the cost of
2 medical expenses incurred during an
3 employment loss that would have been
4 covered under an employee benefit
5 plan if the violation had not occurred;
6 and
7 (III) any amounts due the em-
8 ployee under section 4(b)(1)(C);
9 (ii) any such amounts as appropriate
10 to remedy any violation of this Act, includ-
11 ing any punitive and consequential eco-
12 nomic damages, that the court determines
13 appropriate; and
14 (iii) any equitable relief, including in-
15 junctive relief, the court determines nec-
16 essary to remedy the violation of this Act,
17 which, for a violation of section 5, may in-
18 clude employment, reinstatement, pro-
19 motion, or any other appropriate relief.
20 (C) PERIOD.—The amount of damages
21 under subparagraph (B)(i) shall be calculated
22 for the period of the violation, up to a max-
23 imum of 60 days, but in no event for more than
24 one-half the number of days the employee was
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1 (D) REDUCTIONS IN LIABILITY.—The
2 amount of damages—
3 (i) under subparagraph (B)(i)(I) shall
4 be reduced by—
5 (I) any wages paid by the em-
6 ployer to the employee for the period
7 of the violation;
8 (II) any voluntary and uncondi-
9 tional payment by the employer to the
10 employee that is not required by any
11 legal obligation; and
12 (III) any payment by the em-
13 ployer to a third party or trustee
14 (such as premiums for health benefits
15 or payments to a defined contribution
16 pension plan) on behalf of and attrib-
17 utable to the employee for the period
18 of the violation; and
19 (ii) under subparagraph (B)(i)(II)
20 may be reduced by crediting the employee
21 with service for all purposes under a de-
22 fined benefit pensions plan for the period
23 of the violation.
24 (2) VENUE.—An employee or a representative
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1 graph (1) on behalf of the employee, other similarly
2 situated employees, or both, in—
3 (A) the judicial district in which the em-
4 ployer has its principal office; or
5 (B) a judicial district in which—
6 (i)(I) the violation is alleged to have
7 occurred;
8 (II) the employment records relevant
9 to such practice are maintained and ad-
10 ministered; or
11 (III) the aggrieved individual would
12 have worked but for the alleged unlawful
13 employment practice; and
14 (ii) the employer is found.
15 (3) ATTORNEY’S FEES.—The court shall award
16 an attorney’s fee (including expert fees) that the
17 court determines reasonable as part of the costs to
18 a prevailing party in a civil action under paragraph
19 (1).
20 (4) LIMITATION ON PRIVATE ACTION WHILE AC-
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1 against any person with respect to whom the Sec-
2 retary has instituted the proceeding.
3 (b) ENFORCEMENT ACTIONS.—
4 (1) ACTIONS BY THE SECRETARY.—
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1 benefits, or other compensation, plus interest,
2 found by the court to be due to employees
3 under this Act.
4 (2) STATE ENFORCEMENT.—In any case in
5 which the attorney general of a State has reason to
6 believe that an interest of employees of that State
7 has been or is threatened or adversely affected by a
8 violation of this Act, the attorney general of the
9 State may, as parens patriae, bring a civil action on
10 behalf of the employees of the State in an appro-
11 priate State court or district court of the United
12 States to obtain any relief described in paragraph
13 (1)(A) on behalf of residents in the State. Any sums
14 recovered by the State shall be administered by the
15 attorney general of the State in the same manner as
16 described in paragraph (1)(B).
17 (c) CIVIL FINES.—
18 (1) IN GENERAL.—Any employer who violates
19 the provisions of section 3, 4, or 5 shall be subject
20 to a civil fine, assessed by the Secretary of Labor,
21 of not more than $5,000 for each employee and for
22 each day of such violation.
23 (2) RULE OF CONSTRUCTION.—Nothing in
24 paragraph (1) shall be construed to preclude an em-
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1 such paragraph from bringing a civil action against
2 the employer under subsection (a).
3 (3) GOOD FAITH.—If an employer that has vio-
4 lated this Act proves to the satisfaction of the court
5 that the act or omission that violated this Act was
6 in good faith and that the employer had reasonable
7 grounds for believing that the act or omission was
8 not a violation of this Act, the court may, in its dis-
9 cretion, reduce the civil fine under this subsection.
10 SEC. 7. RULES REGARDING RIGHTS AND REMEDIES.
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1 seq.) or the Railway Labor Act (45 U.S.C. 151 et
2 seq.).
3 (b) INTERACTION WITH OTHER RIGHTS AND REM-
4 EDIES.—The rights and remedies provided to employees
5 by this Act are in addition to, and not in lieu of, any other
6 contractual or statutory rights and remedies of the em-
7 ployees, and are not intended to alter or affect such rights
8 and remedies, except that the period of notification re-
9 quired by this Act shall run concurrently with any period
10 of notification required by contract or by any other stat-
11 ute.
12 (c) EFFECT ON OTHER LAWS.—The giving of notice
13 pursuant to this Act, if done in good faith compliance with
14 this Act, shall not constitute a violation of the National
15 Labor Relations Act (29 U.S.C. 151 et seq.) or the Rail-
16 way Labor Act (45 U.S.C. 151 et seq.).
17 SEC. 8. LIMITED REGULATORY AUTHORITY.
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1 subsection (b) or (c) of section 3 to employees and
2 to representatives of employees;
3 (2) how an employer may comply with the re-
4 quirement to publicly post such notice under sub-
5 sections (b) and (c) of section 3; and
6 (3) what constitutes good faith under section
7 6(c)(3) for employers.
8 (b) METHODS OF NOTICE TO AFFECTED EMPLOY-
9 EES.—The mailing of notice to an employee’s last known
10 address or inclusion of notice in the employee’s paycheck
11 will be considered acceptable methods for fulfillment of the
12 employer’s obligation to give notice to each affected em-
13 ployee under subsections (b)(2)(A) and (c) of section 3.
14 SEC. 9. EXEMPTION OF CERTAIN PAYMENTS RELATED TO
20 MENT LOSS.
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1 ‘‘(1) Any severance pay provided pursuant to
2 section 4(b)(1)(C) of the Workers’ Right to Training
3 Act.
4 ‘‘(2) Any amount received as a voucher for
5 training services pursuant to section 4(b)(2)(C) of
6 such Act.
7 ‘‘(3) Any back pay awarded by court pursuant
8 to section 6(a)(1)(B)(i)(I) of such Act.
9 ‘‘(b) DEFINITIONS.—The terms ‘employee’, ‘em-
10 ployer’, and ‘employment loss’ have the same meaning
11 given such terms under section 2 of the Workers’ Right
12 to Training Act.’’.
13 (b) CONFORMING AMENDMENT.—The table of sec-
14 tions for part III of subchapter B of chapter 1 of the In-
15 ternal Revenue Code of 1986 is amended by inserting
16 after the item related to section 103 the following new
17 item:
‘‘Sec. 103A. Certain payments related to employment loss.’’.
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