Tomorrow is Equal Pay Day – Help us Close the Gender Wage Gap!
BossFeed Briefing for April 3, 2017. The Washington State House introduced a budget proposal last Monday which included start-up funding for paid family leave. In Washington, DC, a Senate committee voted on Thursday to advance the nomination of Alexander Acosta to be the next Secretary of Labor. And tomorrow marks the anniversary of the assassination of Rev. Dr. Martin Luther King, Jr.
Not a real person
Three things to know this week:
The two richest people in the world both live in Washington State. After some recent financial transactions, Jeff Bezos of Amazon moved up to number two with $75.6 billion, passing Warren Buffett but about $10 billion short of Bill Gates.
Ads are running in several key states highlighting the notorious “Frozen Trucker” opinion issued by Supreme Court nominee Neil Gorsuch. In that case, which has no relationship to the Disney movie, Gorsuch held that a trucking company had the right to fire a driver who left an unsafe trailer in order to find warmth and avoid hypothermia after several hours in subzero temperatures.
Portable benefits continue to make progress. A work session was held last Monday in the Washington State legislature on a bill which would establish a statewide system of portable benefits for contracted workers. A bill which would establish portable benefits is expected to be introduced in the U.S. Senate as well.
Two things to ask:
Would more income mean less poverty? That’s one of the hypotheses researchers hope to explore in an upcoming pilot project to provide a Universal Basic Income in a few communities in Ontario, Canada. Somehow it’s not considered a rhetorical question.
Did anyone ask if she was crossing her fingers? During her election campaign, Baltimore Mayor Catherine Pugh promised that she would sign a $15 minimum wage into law. When she then vetoed the $15 bill which came before her, she explained that she hadn’t sworn on the Bible when making the promise.
And one thing that’s worth a closer look:
While “Luddite” has come to mean “technophobe,” the first Luddites were in fact skilled machine operators, and their real life history of organizing, protest, and smashing-stuff-up is quite a bit more complex than you might think. It turns out that the their namesake Ned Ludd was not a real person; that tensions between work, skill, technology, and automation go back at least a few hundred years; and that history may be a better tool to understand the future of work than science fiction or venture capital.
Read this far?
Consider yourself briefed, boss.
TX-Sen, TX-16: Confirming media reports from a few days ago, Democratic Rep. Beto O’Rourke announced on Friday that he would challenge GOP Sen. Ted Cruz in next year’s Senate race. O’Rourke’s move gives Democrats a plausible candidate who could conceivably put this race in play, but he faces exceptionally long odds in a solidly red and ginormously expensive state that hasn’t elected a Democrat statewide since 1994—the longest such streak anywhere in the nation.
For O’Rourke to have any sort of chance, a whole lot of things that are out of his control would have to go his way. In particular, he’d need 2018 to turn into a massive anti-Trump wave that fires up Democrats in droves and keeps dismayed Republicans on the couch. But as David Beard points out in a thoughtful essay making the case for O’Rourke, the last time Republicans went into a midterm with a president as unpopular as Trump occupying the White House—that would be 2006—Democrats picked up Senate seats in states like Missouri and Montana, and even made Tennessee competitive.
Everyone knows how nasty a competitor Cruz is, though, and he’s more than capable of raising all the money he needs to. But Beard makes another good point: Cruz doesn’t have any experience winning a contested general election. While it feels like his unctuous, loathsome presence has haunted us forever, Cruz only has two races under his belt: last year’s failed presidential bid and his original run for Senate in 2012. That year, while he impressively knocked off the GOP establishment’s preferred candidate, he waltzed through November. He has zero experience actually appealing to a broader audience. Does he have it in him to moderate his image even a little bit?
There are also a lot of difficult things O’Rourke has to do that he does have control over. In particular, he’ll need a lot of money—$20 million to $30 million, at least. But does he have it in him to run a disciplined campaign filled with lots and lots of call time to donors? That’s far from clear. A compelling new profile of O’Rourke from the Texas Tribune‘s Abby Livingston highlights a number of the congressman’s quirky approaches to this race.
In particular, O’Rourke hasn’t hired any consultants or pollsters and says he has no desire to do so, citing repeated failures to win in Texas by people who have relied on such professionals. He also says that “I’m only going to do this if we can win,” yet at the same time, when asked how he can beat Cruz, he admits, “Tactically, strategically, I don’t know.” Those are rather contradictory thoughts.
Other details don’t help matters, either. From O’Rourke’s own telling, it appears that he didn’t even inform his wife before he publicly began mooting a Senate bid, and she’s not the only person in the dark: Few people in Texas politics know O’Rourke. As Livingston memorably puts it, O’Rourke’s hometown of El Paso is “so remote it is in a separate time zone from the rest of the state. It is a shorter drive from his district to San Diego than to Beaumont,” near the border with Louisiana.
Painfully, even many of those Democrats who have heard of him don’t know how to pronounce his name properly, calling him “Bee-to” (it’s closer to “Betto”). And even the DSCC didn’t mention O’Rourke in their Friday newsletter, even though it was published after his formal kickoff.
There’s also the matter of Rep. Joaquin Castro, a fellow Democrat who, like O’Rourke, was also elected to the House in 2012. Castro has also been considering a run for Senate, and as word of O’Rourke’s pending announcement circulated, Castro reiterated that he’s still thinking about the race. A competitive statewide Democratic primary in Texas would certainly be interesting, but it would make the already daunting quest for rivers of cash even more intimidating.
Still, whatever O’Rourke’s chances may be, Democrats are fortunate to have someone in place who could take advantage of a total Republican implosion, should such a scenario unfold. And who knows? If Democrats can run the table and somehow defend all of their incumbents while picking up GOP-held seats in Nevada and Arizona, O’Rourke would give them that desperately needed shot at a third pickup to take back the Senate. It’s a triple bank-shot, but every once in a rare while, you actually sink one of those.
O’Rourke’s decision also opens up his safely blue seat in the 16th Congressional District. We’ll take a look at the potential field there in the next Digest.
• NV-Sen: Rep. Dina Titus is so far the only big-name Democrat to openly consider challenging Republican Sen. Dean Heller in 2018, and according to the Las Vegas Sun, Titus said she will decide in the next few months. Although both state Senate Majority Leader Aaron Ford and wealthy businessman Stephen Cloobeck have been mentioned as possible Democratic candidates, Titus thought it was unlikely that either of them would run for Senate or governor next year. Clark County District Attorney Steve Wolfson recently refused to rule out a Senate campaign, but few other Democrats have been willing to go on the record about running.
• AL-Gov: We can add two more names to the list of Republicans who could reach a decision soon about whether to run for governor of this dark-red state in 2018. Former Auburn University football coach Tommy Tuberville says he has been on a “listening tour” around the state as he considers running and that he could reach a decision in the “next couple of weeks.” Huntsville Mayor Tommy Battle had reportedly been mulling a run, and he confirmed that interest by telling AL.com that he foresaw arriving at a decision by the end of April.
No Republicans have formally announced a campaign to succeed term-limited GOP Gov. Robert Bentley, who himself might still face impeachment over a scandal, but several other Republicans are thinking about it. That includes Public Service Commission President Twinkle Cavanaugh, state Auditor Jim Zeigler, state Senate President Pro Tem Del Marsh, and Jefferson County Commissioner David Carrington. Additionally, twice-disgraced former state Supreme Court Chief Justice Roy Moore and Rep. Bradley Byrne haven’t ruled it out.
• CA-Gov: A new YouGov poll from UC Berkeley finds Lt. Gov. Gavin Newsom, a Democrat, leading the pack in next year’s top-two gubernatorial primary with 28 percent of the vote, while Republican businessman John Cox is in second with 18 percent. Former Los Angeles Mayor Antonio Villaraigosa and state Treasurer John Chiang, also both Democrats, take 11 and 8 percent respectively. A third of voters are still undecided, and there’s a lot of game left to be played (and money to be spent playing it). In particular, there’s still a decent chance that the general election could once again wind up being a Democrat-vs.-Democrat affair, just as 2016’s open-seat race to succeed Sen. Barbara Boxer was.
• GA-Gov: Republican Secretary of State Brian Kemp became the first major candidate for either party to formally announce a run for governor in 2018 to succeed term-limited GOP Gov. Nathan Deal. Kemp has been in office since 2010 and has been on the front lines of trying to suppress votes as Georgia’s chief elections administrator. Kemp recently settled a voting rights lawsuit in February that alleged he wrongfully blocked the voter registrations of over 40,000 predominantly African-American voters.
Kemp almost certainly won’t have Team Red’s primary to himself. Lt. Gov. Casey Cagle is reportedly a likely candidate, while state Sen. Josh McKoon and former Rep. Lynn Westmoreland have previously said they’re considering too. There are also several other legislators and Republican officials who are reportedly interested in a bid.
• IL-Gov, IL-13: State Sen. Andy Manar, who had been weighing a run for governor, announced on Friday that he would not join the race. While Manar was busy thinking about whether or not to challenge Republican Gov. Bruce Rauner, though, the Democratic field quickly grew very crowded and now includes several notable names, a couple of whom are exceedingly wealthy. Manar did still have an advantage in that he represents a district in downstate Illinois, whereas almost all of the other credible contenders hail from Chicago, but evidently he decided that a gubernatorial bid wasn’t worth it.
But could he still seek a different sort of promotion? In early March, Manar didn’t rule out a bid against GOP Rep. Rodney Davis in the 13th Congressional District, and he’d be a very strong recruit for Team Blue. It’s not clear whether this option is still on the table, though. While Manar explicitly closed the door on the gubernatorial race, the statement he issued didn’t touch on a possible congressional run, so here’s hoping.
• NM-Gov: On Friday, Democratic Rep. Michelle Lujan Grisham announced the endorsement of former longtime Democratic Sen. Jeff Bingaman, who served from 1983 to 2013. Lujan Grisham jumped into the race early to replace term-limited Republican Gov. Susana Martinez, and she continues to consolidate high-profile support ahead of 2018’s primary. However, fellow Democratic state Sen. Joseph Cervantes is also in the race, while state Attorney General Hector Balderas, Santa Fe Mayor Javier Gonzales, former Univision executive Jeff Apodaca, and businessman Alan Webber are all considering running for Team Blue.
• GA-06: Yep, it turns out that Republicans really are afraid that Jon Ossoff could win the April 18 special election primary without a runoff. On Thursday, a couple of articles surfaced (one from Politico, the other from CNN) citing GOP fears that Ossoff might deliver a first-round knockout, but the skeptical side of us wondered if Republicans were just trying to juke the expectations game in the hopes of deflating progressive enthusiasm in the event Ossoff isn’t able to clear 50 percent (which is still the most likely outcome).
But we were giving them too much credit, because on Friday, Republicans proved how nervous they are by actually spending money on new ads designed to forestall what has become their ultimate nightmare scenario. Both of the spots are pretty weird, though, each in their own way.
The Congressional Leadership Fund, which has spent over $2 million attacking Ossoff, has decided that he’s no longer an unready frat house Han Solo but rather the would-be leader of a revolutionary movement ready to burn the country to the ground. Indeed, their ad features footage of anarchist dipshits trashing Washington, DC ahead of the inauguration while scary music plays and an anxious narrator declares, “Jon Ossoff is one of them. Ossoff will vote with Nancy Pelosi for more spending, bigger government, and a weaker military.” But will the highly educated, Republican-leaning but anti-Trump voters in this district that Ossoff is relying on to put him over the top really cotton to this sort of hysterical message?
Meanwhile, the NRCC is in an even deeper fix. Because they’ve been leery of taking sides in the primary, they’re reduced to begging people to come out and literally “vote Republican for Congress”—any Republican! doesn’t matter!—to keep Ossoff under 50. Not that their ad mentions Ossoff, but they do claim Democrats “are trying to stop our Republican majority that’s getting things done.” Hoo boy is that a tough sell. What’s more, the spot features footage of Trump gesticulating madly. As we’ve noted ad nauseam, this is not a very Trumpy district at all, but is the NRCC desperate to motivate the GOP’s pro-Trump base? That’s a terrible sign in and of itself.
There’s no word on the size of the NRCC’s buy, but according to CNN, the committee is also sending five field staffers into the district, to join six already there from the RNC (a number that’s set to go up to 15). CLF is also running its own field program, reportedly with 90 staffers. That’s a lot of bodies—and money—to throw at this problem. Someone’s getting panicked.
• FL-18: Republican Rep. Brian Mast won his first term in 2016 against a well-funded Democratic opponent by a rather comfortable 54-43 spread, while Donald Trump prevailed in the 18th District by a similar 53-44 margin. However, that doesn’t seem to be stopping Democrats from trying to target this seat in 2018, which is located north of West Palm Beach and was represented by Democratic Rep. Patrick Murphy until he unsuccessfully ran for Senate in 2016. The latest name to arise via Roll Call’s Simone Pathé as a possible challenger to Mast is attorney Jonathan Chane, who lost the Democratic primary for the open seat in 2016. However, it’s unclear if Chane himself is interested in another campaign.
• KS-04: Either Republican Ron Estes is very unworried about the April 11special election for Kansas’ 4th Congressional District, or he’s dangerously lazy. The candidates, who were both chosen at party conventions in early February, both just filed reports with the FEC detailing their fundraising through March 22, and Estes, the current state treasurer, had raised only $283,000 by that date. That wasn’t much more than his Democratic opponent, attorney James Thompson, took in during the same timeframe: $252,000. Both Estes and Thompson have also spent similar amounts, leaving them with around $110,000 apiece for the stretch run.
In all likelihood, though, Estes has little to fear despite his soft haul, given how red this district is (it voted 60-33 for Trump). However, he still felt it necessary to run a TV ad attacking Thompson (albeit not by name) in which he literally stands in a swamp wearing waders—bedecked with a “Ron Estes” bumper sticker!—and stiffly complains that “liberal activists are trying to steal this election by supporting the Bernie Sanders-backed lawyer because they know he will vote the way Pelosi tells him to” as snakes slither on-screen. Subtle.
Thompson also has an ad out, but it’s a positive biographical spot in which he discusses his impoverished upbringing and his service in the Army. He also speaks about fighting for veterans, working families, and “our personal freedoms” as he’s shown shooting a rifle. The only jab at Estes appears in text on-screen, about his refusal to appear at a debate. But while Thompson may be the target of Estes’ barbs, Estes is probably just playing it safe. If Republicans were really worried, they’d mobilize the cavalry—like they are in Georgia.
• Maps: Decision Desk HQ has put together a mesmerizing national map of the 2016 presidential election results by precinct for all 50 states plus D.C. They also mapped the 2008 and 2012 results by precinct, allowing them to illustrate the swing from 2012 to 2016. Their precinct-level details reveal what many election observers likely already know: Hillary Clinton did especially well in major cities and rural areas with large black, Latino, and Native American populations, while Donald Trump dominated in regions that are heavily white and rural.
The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, and Stephen Wolf, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, and James Lambert.
To advertise in the Morning Digest, please contact firstname.lastname@example.org.
EDITOR’S NOTE: The following is the text of the Equal Pay Act of 1963 (Pub. L. 88-38) (EPA), as amended, as it appears in volume 29 of the United States Code, at section 206(d). The EPA, which is part of the Fair Labor Standards Act of 1938, as amended (FLSA), and which is administered and enforced by the EEOC, prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions. Cross references to the EPA as enacted appear in italics following the section heading. Additional provisions of the Equal Pay Act of 1963, as amended, are included as they appear in volume 29 of the United States Code.
SEC. 206. [Section 6]
(d) Prohibition of sex discrimination
(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
(2) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection.
(3) For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this chapter.
(4) As used in this subsection, the term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
ADDITIONAL PROVISIONS OF EQUAL PAY ACT OF 1963
To prohibit discrimination on account of sex in the payment of wages by employers engaged in commerce or in the production of goods for commerce.
DECLARATION OF PURPOSE
Not Reprinted in U.S. Code [Section 2]
(a) The Congress hereby finds that the existence in industries engaged in commerce or in the production of goods for commerce of wage differentials based on sex-
(1) depresses wages and living standards for employees necessary for their health and efficiency;
(2) prevents the maximum utilization of the available labor
(3) tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;
(4) burdens commerce and the free flow of goods in commerce; and
(5) constitutes an unfair method of competition.
(b) It is hereby declared to be the policy of this Act, through exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct the conditions above referred to in such industries.
[Section 3 of the Equal Pay Act of 1963 amends section 6 of the Fair Labor Standards Act by adding a new subsection (d). The amendment is incorporated in the revised text of the Fair Labor Standards Act.]
Not Reprinted in U.S. Code [Section 4]
The amendments made by this Act shall take effect upon the expiration of one year from the date of its enactment: Provided, That in the case of employees covered by a bona fide collective bargaining agreement in effect at least thirty days prior to the date of enactment of this Act entered into by a labor organization (as defined in section 6(d)(4) of the Fair Labor Standards Act of 1938, as amended) [subsection (d)(4) of this section], the amendments made by this Act shall take effect upon the termination of such collective bargaining agreement or upon the expiration of two years from the date of enactment of this Act, whichever shall first occur.
Approved June 10, 1963, 12 m.
[In the following excerpts from the Fair Labor Standards Act of 1938, as amended, authority given to the Secretary of Labor is exercised by the Equal Employment Opportunity Commission for purposes of enforcing the Equal Pay Act of 1963.]
ATTENDANCE OF WITNESSES
SEC. 209 [Section 9]
For the purpose of any hearing or investigation provided for in this chapter, the provisions of sections 49 and 50 of title 15 [Federal Trade Commission Act of September 16, 1914, as amended (U.S.C., 1934 edition)] (relating to the attendance of witnesses and the production of books, papers, and documents), are made applicable to the jurisdiction, powers, and duties of the Administrator, the Secretary of Labor, and the industry committees.
COLLECTION OF DATA
SEC. 211 [Section 11]
(a) Investigations and inspections
The Administrator or his designated representatives may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter. Except as provided in section 212 [section 12] of this title and in subsection (b) of this section, the Administrator shall utilize the bureaus and divisions of the Department of Labor for all the investigations and inspections necessary under this section. Except as provided in section 212 [section 12] of this title, the Administrator shall bring all actions under section 217 [section 17] of this title to restrain violations of this chapter.
(b) State and local agencies and employees
With the consent and cooperation of State agencies charged with the administration of State labor laws, the Administrator and the Secretary of Labor may, for the purpose of carrying out their respective functions and duties under this chapter, utilize the services of State and local agencies and their employees and, notwithstanding any other provision of law, may reimburse such State and local agencies and their employees for services rendered for such purposes.
Every employer subject to any provision of this chapter or of any order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder. The employer of an employee who performs substitute work described in section 207(p)(3) [section 7(p)(3)] of this title may not be required under this subsection to keep a record of the hours of the substitute work.
(d) Homework regulations
The Administrator is authorized to make such regulations and orders regulating, restricting, or prohibiting industrial homework as are necessary or appropriate to prevent the circumvention or evasion of and to safeguard the minimum wage rate prescribed in this chapter, and all existing regulations or orders of the Administrator relating to industrial homework are continued in full force and effect.
SEC. 213 [Section 13]
(a) Minimum wage and maximum hour requirements
The provisions of sections 206 [section 6] (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 [section 7] of this title shall not apply with respect to-
(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of Title 5 [the Administrative Procedure Act], except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities); or
[Note: Section 13(a)(2) (relating to employees employed by a retail or service establishment) was repealed by Pub. L. 101-157, section 3(c)(1), November 17, 1989.]
(3) any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 1/3 per centum of its average receipts for the other six months of such year, except that the exemption from sections 206 and 207 [sections 6 and 7] of this title provided by this paragraph does not apply with respect to any employee of a private entity engaged in providing services or facilities (other than, in the case of the exemption from section 206 [section 6] of this title, a private entity engaged in providing services and facilities directly related to skiing) in a national park or a national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture; or
[Note: Section 13(a)(4) (relating to employees employed by an establishment which qualified as an exempt retail establishment) was repealed by Pub. L. 101-157, Section 3(c)(1), November 17, 1989.]
(5) any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee; or
(6) any employee employed in agriculture (A) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor, (B) if such employee is the parent, spouse, child, or other member of his employer’s immediate family, (C) if such employee (i) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year, (D) if such employee (other than an employee described in clause (C) of this subsection) (i) is sixteen years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over age sixteen are paid on the same farm, or (E) if such employee is principally engaged in the range production of livestock; or
(7) any employee to the extent that such employee is exempted by regulations, order, or certificate of the Secretary issued under section 214 [section 14] of this title; or
(8) any employee employed in connection with the publication of any weekly, semiweekly, or daily newspaper with a circulation of less than four thousand the major part of which circulation is within the county where published or counties contiguous thereto; or
[Note: Section 13(a)(9) (relating to motion picture theater employees) was repealed by section 23 of the Fair Labor Standards Amendments of 1974. The 1974 amendments created an exemption for such employees from the overtime provisions only in section 13(b)27.]
(10) any switchboard operator employed by an independently owned public telephone company which has not more than seven hundred and fifty stations; or
[Note: Section 13(a)(11) (relating to telegraph agency employees) was repealed by section 10 of the Fair Labor Standards Amendments of 1974. The 1974 amendments created an exemption from the overtime provisions only in section 13(b)(23), which was repealed effective May 1, 1976.]
(12) any employee employed as a seaman on a vessel other than an American vessel; or
[Note: Section 13(a)(13) (relating to small logging crews) was repealed by section 23 of the Fair Labor Standards Amendments of 1974. The 1974 amendments created an exemption for such employees from the overtime provisions only in section 13(b)(28).]
[Note: Section 13(a)(14) (relating to employees employed in growing and harvesting of shade grown tobacco) was repealed by section 9 of the Fair Labor Standards Amendments of 1974. The 1974 amendments created an exemption for certain tobacco producing employees from the overtime provisions only in section 13(b)(22). The section 13(b)(22) exemption was repealed, effective January 1, 1978, by section 5 of the Fair Labor Standards Amendments of 1977.]
(15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary); or
(16) a criminal investigator who is paid availability pay under section 5545a of Title 5 [Law Enforcement Availability Pay Act of 1994]; or
(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is—
(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
(B) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
(D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and
who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour.
(g) Certain employment in retail or service establishments, agriculture
The exemption from section 206 [section 6] of this title provided by paragraph (6) of subsection (a) of this section shall not apply with respect to any employee employed by an establishment (1) which controls, is controlled by, or is under common control with, another establishment the activities of which are not related for a common business purpose to, but materially support the activities of the establishment employing such employee; and (2) whose annual gross volume of sales made or business done, when combined with the annual gross volume of sales made or business done by each establishment which controls, is controlled by, or is under common control with, the establishment employing such employee, exceeds $10,000,000 (exclusive of excise taxes at the retail level which are separately stated).
SEC. 215 [Section 15]
(a) After the expiration of one hundred and twenty days from June 25, 1938 [the date of enactment of this Act], it shall be unlawful for any person-
(1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 206 [section 6] or section 207 [section 7] of this title, or in violation of any regulation or order of the Secretary issued under section 214 [section 14] of this title, except that no provision of this chapter shall impose any liability upon any common carrier for the transportation in commerce in the regular course of its business of any goods not produced by such common carrier, and no provision of this chapter shall excuse any common carrier from its obligation to accept any goods for transportation; and except that any such transportation, offer, shipment, delivery, or sale of such goods by a purchaser who acquired them in good faith in reliance on written assurance from the producer that the goods were produced in compliance with the requirements of this chapter, and who acquired such goods for value without notice of any such violation, shall not be deemed unlawful;
(2) to violate any of the provisions of section 206 [section 6] or section 207 [section 7] of this title, or any of the provisions of any regulation or order of the Secretary issued under section 214 [section 14] of this title;
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;
(4) to violate any of the provisions of section 212 [section 12] of this title;
(5) to violate any of the provisions of section 211(c) [section 11(c)] of this title, or any regulation or order made or continued in effect under the provisions of section 211(d) [section 11(d)] of this title, or to make any statement, report, or record filed or kept pursuant to the provisions of such section or of any regulation or order thereunder, knowing such statement, report, or record to be false in a material respect.
(b) For the purposes of subsection (a)(1) of this section proof that any employee was employed in any place of employment where goods shipped or sold in commerce were produced, within ninety days prior to the removal of the goods from such place of employment, shall be prima facie evidence that such employee was engaged in the production of such goods.
SEC. 216 [Section 16]
(a) Fines and imprisonment
Any person who willfully violates any of the provisions of section 215 [section 15] of this title shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.
(b) Damages; right of action; attorney’s fees and costs; termination of right of action
Any employer who violates the provisions of section 206 [section 6] or section 207 [section 7] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates the provisions of section 215(a)(3) [section 15(a)(3)] of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) [section 15(a)(3)] of this title, including without limitation employment, reinstatement,promotion, and the payment of wages lost and an additional equal amount as liquidated damages. An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action. The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 [section 17] of this title in which (1) restraint is sought of any further delay in the payment of unpaid minimum wages, or the amount of unpaid overtime compensation, as the case may be, owing to such employee under section 206 [section 6] or section 207 [section 7] of this title by an employer liable therefor[sic] under the provisions of this subsection or (2) legal or equitable relief is sought as a result of alleged violations of section 215(a)(3) [section 15(a)(3)] of this title.
(c) Payment of wages and compensation; waiver of claims; actions by the Secretary; limitation of actions
The Secretary is authorized to supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee or employees under section 206 [section 6] or section 207 [section 7] of this title, and the agreement of any employee to accept such payment shall upon payment in full constitute a waiver by such employee of any right he may have under subsection (b) of this section to such unpaid minimum wages or unpaid overtime compensation and an additional equal amount as liquidated damages. The Secretary may bring an action in any court of competent jurisdiction to recover the amount of the unpaid minimum wages or overtime compensation and an equal amount as liquidated damages. The right provided by subsection (b) of this section to bring an action by or on behalf of any employee to recover the liability specified in the first sentence of such subsection and of any employee to become a party plaintiff to any such action shall terminate upon the filing of a complaint by the Secretary in an action under this subsection in which a recovery is sought of unpaid minimum wages or unpaid overtime compensation under sections 206 and 207 [sections 6 and 7] of this title or liquidated or other damages provided by this subsection owing to such employee by an employer liable under the provisions of subsection (b) of this section, unless such action is dismissed without prejudice on motion of the Secretary. Any sums thus recovered by the Secretary of Labor on behalf of an employee pursuant to this subsection shall be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employee or employees affected. Any such sums not paid to an employee because of inability to do so within a period of three years shall be covered into the Treasury of the United States as miscellaneous receipts. In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations provided in section 255(a) of this title [section 6(a) of the Portal-to-Portal Act of 1947], it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action.
(d) Savings provisions
In any action or proceeding commenced prior to, on, or after August 8, 1956 [the date of enactment of this subsection], no employer shall be subject to any liability or punishment under this chapter or the Portal-to-Portal Act of 1947 [29 U.S.C. 251 et seq.] on account of his failure to comply with any provision or provisions of this chapter or such Act (1) with respect to work heretofore or hereafter performed in a workplace to which the exemption in section 213(f) [section 13(f)] of this title is applicable, (2) with respect to work performed in Guam, the Canal Zone or Wake Island before the effective date of this amendment of subsection (d), or (3) with respect to work performed in a possession named in section 206(a)(3) [section 6(a)(3)] of this title at any time prior to the establishment by the Secretary, as provided therein, of a minimum wage rate applicable to such work.
(e)(1)(A) Any person who violates the provisions of sections 212 or 213(c) [sections 12 or 13(c)] of this title, relating to child labor, or any regulation issued pursuant to such sections, shall be subject to a civil penalty of not to exceed—
(i) $11,000 for each employee who was the subject of such a violation; or
(ii) $50,000 with regard to each such violation that causes the death or serious injury of any employee under the age of 18 years, which penalty may be doubled where the violation is a repeated or willful violation.
(B) For purposes of subparagraph (A), the term “serious injury” means—
(i) permanent loss or substantial impairment of one of the senses (sight, hearing, taste, smell, tactile sensation);
(ii) permanent loss or substantial impairment of the function of a bodily member, organ, or mental faculty, including the loss of all or part of an arm, leg, foot, hand or other body part; or
(iii) permanent paralysis or substantial impairment that causes loss of movement or mobility of an arm, leg, foot, hand or other body part.
(2) Any person who repeatedly or willfully violates section 206 or 207 [section 6 or 7], relating to wages, shall be subject to a civil penalty not to exceed $1,100 for each such violation.
(3) In determining the amount of any penalty under this subsection, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered. The amount of any penalty under this subsection, when finally determined, may be-
(A) deducted from any sums owing by the United States to the person charged;
(B) recovered in a civil action brought by the Secretary in any court of competent jurisdiction, in which litigation the Secretary shall be represented by the Solicitor of Labor; or
(C) ordered by the court, in an action brought for a violation of section 215(a)(4) [section 15(a)(4)] of this title or a repeated or willful violation of section 215(a)(2) [section 15(a)(2)] of this title, to be paid to the Secretary.
(4) Any administrative determination by the Secretary of the amount of any penalty under this subsection shall be final, unless within 15 days after receipt of notice thereof by certified mail the person charged with the violation takes exception to the determination that the violations for which the penalty is imposed occurred, in which event final determination of the penalty shall be made in an administrative proceeding after opportunity for hearing in accordance with section 554 of Title 5 [Administrative Procedure Act], and regulations to be promulgated by the Secretary.
(5) Except for civil penalties collected for violations of section 212 [section 12] of this title, sums collected as penalties pursuant to this section shall be applied toward reimbursement of the costs of determining the violations and assessing and collecting such penalties, in accordance with the provision of section 9a of Title 29 [An Act to authorize the Department of Labor to make special statistical studies upon payment of the cost thereof and for other purposes]. Civil penalties collected for violations of section 212 [section 12] of this title shall be deposited in the general fund of the Treasury.
SEC. 217 [Section 17]
The districts courts, together with the United States District Court for the District of the Canal Zone, the District Court of the Virgin Islands, and the District Court of Guam shall have jurisdiction, for cause shown, to restrain violations of section 215 [section 15] of this title, including in the case of violations of section 215(a)(2) of this title the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter (except sums which employees are barred from recovering, at the time of the commencement of the action to restrain the violations, by virtue of the provisions of section 255 of this title [section 6 of the Portal-to-Portal Act of 1947].
RELATION TO OTHER LAWS
SEC. 218 [Section 18]
(a) No provision of this chapter or of any order thereunder shall
excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter, and no provision of this chapter relating to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this chapter. No provision of this chapter shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this chapter, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this chapter.
SEPARABILITY OF PROVISIONS
SEC. 219 [Section 19]
If any provision of this chapter or the application of such provision to any person or circumstance is held invalid, the remainder of this chapter and the application of such provision to other persons or circumstances shall not be affected thereby.
Approved June 25, 1938.
[In the following excerpts from the Portal-to-Portal Act of 1947, the authority given to the Secretary of Labor is exercised by the Equal Employment Opportunity Commission for purposes of enforcing the Equal Pay Act of 1963.]
PART IV – MISCELLANEOUS
STATUTE OF LIMITATIONS
SEC. 255 [Section 6]
Any action commenced on or after May 14, 1947 [the date of the enactment of this Act], to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, [29 U.S.C. 201 et seq.], the Walsh-Healey Act [41 U.S.C. 35 et seq.], or the Bacon-Davis Act [40 U.S.C. 276a et seq.]-
(a) if the cause of action accrues on or after May 14, 1947 [the date of the enactment of this Act]-may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued,except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued;
DETERMINATION OF COMMENCEMENT OF FUTURE ACTIONS
SEC. 256 [Section 7]
In determining when an action is commenced for the purposes of section 255 [section 6] of this title, an action commenced on or after May 14, 1947 [the date of the enactment of this Act] under the Fair Labor Standards Act of 1938, as amended, [29 U.S.C. 201 et seq.], the Walsh-Healey Act [41 U.S.C. 35 et seq.], or the Bacon-Davis Act [40 U.S.C. 276a et seq.], shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action instituted under the Fair Labor Standards Act of 1938, as amended, or the Bacon-Davis Act, it shall be considered to be commenced in the case of any individual claimant—
(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or
(b) if such written consent was not so filed or if his name did not so appear—on the subsequent date on which such written consent is filed in the court in which the action was commenced.
RELIANCE IN FUTURE ON ADMINISTRATIVE RULINGS, ETC.
SEC. 259 [Section 10]
(a) In any action or proceeding based on any act or omission on or after May 14, 1947 [the date of the enactment of this Act], no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, [29 U.S.C. 201 et seq.], the Walsh-Healey Act [41 U.S.C. 35 et seq.], or the Bacon-Davis Act [40 U.S.C. 276a et seq.], if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.
(b) The agency referred to in subsection (a) shall be-
(1) in the case of the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.]- the Administrator of the Wage and Hour Division of the Department of Labor;
SEC. 260 [Section 11]
In any action commenced prior to or on or after May 14, 1947 [the date of the enactment of this Act] to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.],the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 [section 16] of this title.
SEC. 262 [Section 13]
(a) When the terms “employer”, “employee”, and “wage” are used in this chapter in relation to the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], they shall have the same meaning as when used in such Act of 1938.
Not Reprinted in U.S. Code [Section 14]
If any provision of this Act or the application of such provision to any person or circumstance is held invalid, the remainder of this Act and the application of such provision to other persons or circumstances shall not be affected thereby.
Not Reprinted in U.S. Code [Section 15]
This Act may be cited as the ‘Portal-to-Portal Act of 1947.’
Approved May 14, 1947.