Providing for Consideration of H.R. Paycheck Fairness Act, and Providing for Consideration of H.Res. Opposing Ban on Transgender Members of Armed Forces
Floor Speech
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Mr. BURGESS. Madam Speaker, I yield myself such time as I may consume and thank the gentlewoman from California (Mrs. Torres) for yielding me the customary 30 minutes.
Madam Speaker, today we are considering H.R. 7, the Paycheck Fairness Act. This legislation seeks to prevent wage discrimination on the basis of sex, but this is already prohibited under current law.
The Paycheck Fairness Act is a false promise made by the majority that would not provide the outcomes that we all seek as Americans. This legislation will empower trial lawyers and offers no new protections against pay discrimination.
According to the Equal Pay Act of 1963, Federal law currently prohibits all discrimination in pay or other employment practices based upon sex or any other nonjob-performance-related issue.
In 1964, Congress enacted comprehensive antidiscrimination civil rights protection based on race, color, national origin, religion, and sex under title 7 of the Civil Rights Act.
Together, these laws protect against sex discrimination and provide a range of remedies for victims. As a result, sex-based wage disparity is in direct violation of not one, but two current Federal laws.
It is important to acknowledge that there are bad actors. A small number of managers may practice pay discrimination, but their actions are illegal, and this opens their businesses to lawsuits and to heavy fines.
I could not agree more that such discrimination has no place in those businesses or in society in general. However, those who perpetuate these illegal acts are the exception and not the rule.
Congress must not ignore the positive trends our Nation has seen in the last 26 months:
Since 2017, the Trump administration has made significant strides in reining in Federal overreach, improving opportunities and results for Americans in the past 2 years;
The Tax Cut and Jobs Act has given all Americans greater opportunity, regardless of sex, leading to an improved economy;
Unemployment is at its lowest level in nearly half a century;
Median wages across all demographic groups are rising faster now than at any time in recent history.
According to a recent Wall Street Journal article, the United States economy added jobs for 100 consecutive months. The current labor market is not only benefiting the low-skilled services, but also high-skilled workers and those with advanced degrees.
In both low-skill and high-skill sectors, there remains a short supply of willing or qualified workers, driving up wages for both. Across the spectrum, all workers are benefiting from the current economy.
Our former colleague Jack Kemp used to describe a situation where ``a rising tide lifts all boats.'' We may very well be in that ``rising tide'' period.
But despite the good news, the majority has crafted legislation that would place a greater burden on employers and reduce the privacy of employees and increase Federal spending.
H.R. 7 does little to protect the wages of American workers. In fact, it makes it harder for employers to defend legitimate differentials in pay.
Currently, employers may pay different wages due to factors other than sex, such as education, training, or experience.
Let's say that again. Under current law, you must pay equal wages for equal work. That means all other things being equal, a woman cannot be paid differently than a man.
When an employee brings different qualifications to the job, such as an advanced degree or more years of experience, the factors used to evaluate employee pay are no longer equal. This preserves the flexibility for employers to make the best decision for their business, including hiring the most qualified employees, regardless of their gender.
H.R. 7 would now require that non-sex reasons for any wage disparity would have what is termed a ``business necessity.'' Now, ``business necessity,'' this is a term that goes undefined in the legislation. Proving a gender-based business necessity that accounts for the entire differential in pay is sometimes a nearly impossible standard to defend.
Employers would no longer be able to hire or pay employees based on qualifications, unless that qualification is being one sex or the other, a standard that is defined in very few jobs. In addition, employers would not be able to consider market or economic factors of their particular business sector that might account for a wage disparity.
This change to what is called a ``bona fide factor defense'' does not take into account the reality of the labor market. Employees are often willing to accept lower pay for greater control over their work location, their schedule, or how they aggregate their leave. Studies have shown this is particularly true for women, but it is also true for men.
With the threat of a lawsuit hanging over the heads of employers, they are less likely to allow for flexibility in the workplace. Instead of allowing employees to negotiate their own pay and their work arrangements, employers will be incentivized to transform jobs that were once negotiable and flexible into jobs where one size must fit all.
H.R. 7 also limits an employer's ability to pay its employees based on performance. If a woman were to earn a performance-based bonus or salary that her male coworker did not receive, that man could file a suit against the employer on the basis that the bonus is not a business necessity, due to the vagueness of the term in H.R. 7.
With this threat in mind, employers may be less likely to use performance-based pay and bonuses, despite studies showing such pay models actually increase employee pay. As approximately 40 percent of employers now use performance-based compensation, this bill and the vague definitions in this bill could potentially lead to a stagnation or a decrease in wages.
Under current law, employers are prohibited from pay discrimination whether it is intentional or not. If such pay discrimination is intentional, employees can sue the employer in a class action suit for up to $300,000 in compensatory and punitive damages.
The Paycheck Fairness Act would remove the threshold to this liability and would require that workers be included in class action lawsuits. It would require that they be included in class action lawsuits unless they opt out, but many people may not be aware of that requirement that they must opt out. Otherwise, they are automatically included.
In addition, there are no limits on the fees charged by trial lawyers. There were amendments offered at the Rules Committee hearing to do just that, but they were not accepted as part of this rule.
One of those amendments, in fact, limited the compensation for litigation attorneys to $2,000 per hour. That was the cap placed on attorneys' fees, $2,000 an hour. That is a phenomenal sum of money. It was rejected by the Rules Committee. Apparently, they felt that their litigation attorneys were worth more than $2,000 an hour or are required to earn more than $2,000 an hour in order to put food on the table for their families. It just doesn't make sense. There should be reasonable limitations on those fees.
While legitimate claims do exist, and I hope that all employees who have experienced discrimination seek a legal remedy, the changes in H.R. 7 would significantly increase the size and the profitability of lawsuits, making unnecessary lawsuits even more likely for trial lawyers looking for new cash flows.
The Paycheck Fairness Act would also have a substantial impact on the rights of both employers and employees. The bill would prohibit employers from requesting information regarding an employee's pay history, which is likely an unconstitutional limit on the employer's freedom of speech.
Furthermore, the bill reduces the right to privacy for employers and employees as it removes any recourse should an employee make public the wages of other employees, even without the consent of those employees or their employer.
H.R. 7 also requires employers to provide disaggregated employee information to the Department of Labor without delineating mechanisms to keep that information safe.
We saw just that last week with the Federal Emergency Management Agency data breach. The government is not always the best steward of a citizen's private information, and we should limit the data received by agencies until those capabilities are improved and verified.
Let me be clear: Wage discrimination certainly has no place and is illegal in the United States of America. But I believe this bill places undue and unnecessary restrictions on otherwise lawful business practices and is based upon unsubstantiated findings. Therefore, I cannot support H.R. 7.
The path that Congress must take is not to increase opportunities for trial lawyers but to continue focusing on strong economic policy that expands opportunities for all Americans.
Last year, 2.8 million jobs were added to the United States' economy. Fifty-eight percent of those jobs were taken by women. Nearly 75 million women are participating in the workforce today, more than at any time in our Nation's history. A robust and resilient economy will provide the jobs and wage gains Americans expect and deserve.
Madam Speaker, I urge opposition to the rule, and I reserve the balance of my time.
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Mr. BURGESS. Madam Speaker, I yield myself 2 minutes.
In almost every election cycle in which I have participated since 2002, people on the Democratic side of the aisle have talked about wanting to rebuild the middle class. I will submit to you, over the last 26 months, this administration, this President, has rebuilt the middle class.
Let me just quote to you from an article in The Wall Street Journal from March 1 of this year, a very recent article. ``All sorts of people who have previously had trouble landing a job are now finding work. Racial minorities, those with less education, and people working in the lowest-paying jobs are getting bigger pay raises and, in many cases, experiencing the lowest unemployment rate ever recorded for their groups.''
Continuing to quote here: ``They are joining manufacturing workers, women in their prime working years, Americans with disabilities, and those with criminal records, among others, in finding improved job prospects after years of disappointment.''
It is incongruous to me that we would want to roll-back those gains that this administration has made in the last 26 months.
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Mr. BURGESS. Madam Speaker, I yield myself 1 minute.
Madam Speaker, I would just like to remind the Speaker and colleagues in the House that when the President came and delivered his State of the Union message, he was significantly proud of the fact that right now more women are working in the workforce than any time in our country's history.
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Mr. BURGESS. Madam Speaker, may I inquire as to how much time remains on my side?
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Mr. BURGESS. Madam Speaker, I yield myself 3 minutes.
Madam Speaker, I appreciate Congresswoman Maloney, the previous speaker's, comments. She and I served on the Joint Economic Committee together back in 2010. The country just lost a very wise economist, Alan Krueger. I remember Alan Krueger coming in and testifying to our Joint Economic Committee; he testified about--of course, at the time in 2010, the description was that we were in a low-pressure labor market. He contrasted that with the high-pressure labor market of the 1960s. I don't recall if there were specific suggestions how to move from that low-pressure labor market back to a high-pressure labor market, but I don't think there can be any misunderstanding that we are back in a high-pressure labor market. That is a good thing.
I quoted a few minutes ago from an article in The Wall Street Journal. Let me just read a little deeper from that article:
One face of the red-hot job market is Cassandra Eaton, 23, a high school graduate who was making $8.25 an hour at a daycare center near Biloxi, Mississippi, just a few months ago. Now she earns $19.80--that is almost $20 an hour--as an apprentice at a shipyard in nearby Pascagoula.
The article continues:
``It's amazing that I am getting paid almost $20 an hour to learn how to weld, says Ms. Eaton, the single mother of a young daughter. When she finishes the 2-year apprenticeship, her wage will rise to more than $27 per hour.''
Madam Speaker, such is the strength of a high-pressure labor market, and I include this article from The Wall Street Journal in the Record. [From the Wall Street Journal, Mar. 1, 2019] Inside the Hottest Job Market in Half a Century A look at who's getting ahead, who could be left behind and how long the boom can last (By Erie Morath and Lauren Weber)
The job market doesn't get much better than this. The U.S. economy has added jobs for 100 consecutive months. Unemployment recently touched its lowest level in 49 years. Workers are so scarce that, in many parts of the country, low-skill jobs are being handed out to pretty much anyone willing to take them--and high-skilled workers are in even shorter supply.
All sorts of people who have previously had trouble landing a job are now finding work. Racial minorities, those with less education and people working in the lowest-paying jobs are getting bigger pay raises and, in many cases, experiencing the lowest unemployment rate ever recorded for their groups. They are joining manufacturing workers, women in their prime working years, Americans with disabilities and those with criminal records, among others, in finding improved job prospects after years of disappointment.
There are still fault lines. Jobs are still scarce for people living in rural areas of the country. Regions that rely on industries like coal mining or textiles are still struggling. And the tight labor market of the moment may be masking some fundamental shifts in the way we work that will hurt the job prospects of many people later on, especially those who lack advanced degrees and skills.
But for now, at least, many U.S. workers are catching up after years of slow growth and underwhelming wage gains.
One face of the red-hot job market is Cassandra Eaton, 23, a high-school graduate who was making $8.25 an hour at a daycare center near Biloxi, Miss., just a few months ago. Now she earns $19.80 an hour as an apprentice at a Huntington Ingalls Industries Inc. shipyard in nearby Pascagoula, where she is learning to weld warships.
The unemployment rate in Mississippi, where Huntington employs 11,500 people, has been below 5 percent since September 2017. Prior to that month, the rate had never been below 5 percent on records dating back to the mid-1970s. In other parts of the country, the rate is even lower. In Iowa and New Hampshire, the December jobless rate was 2.4 percent, tied for the lowest in the country. That's helped shift power toward job seekers and caused employers to expand their job searches and become more willing to train applicants that don't meet all qualifications.
``It's amazing that I'm getting paid almost $20 an hour to learn how to weld,'' says Ms. Eaton, the single mother of a young daughter. When she finishes the two-year apprenticeship, her wage will rise to more than $27 per hour.
It's no surprise to economists that many people who were previously left behind are now able to catch up. It's something policymakers have been working toward for years. Obama administration economists debated how to sustain an unemployment below 5 percent. Now Trump administration officials are considering how to pull those not looking for jobs back into the labor force.
``If you can hold unemployment at a low level for a long time there are substantial benefits,'' Janet Yellen, the former chairwoman of the Federal Reserve, said in an interview. ``Real wage growth will be faster in a tight labor market. So disadvantaged workers gain on the employment and the wage side, and to my mind, that's clearly a good thing.''
This was one of Ms. Yellen's hopes when she was running the Fed from 2014 to 2018; keep interest rates low and let the economy run strong enough to keep driving hiring. In the process, the theory went, disadvantaged workers could be drawn from the fringes of the economy. With luck, inflation wouldn't take off in the process. Her successor, Jerome Powell, has generally followed the strategy, moving cautiously on rates.
``This is a good time to be patient,'' Mr. Powell told members of Congress Tuesday.
The plan seems to be paying big dividends now, but will it yield long-term results for American workers?
Two risks loom. The first is that the low-skill workers who benefit most from a high-pressure job market are often hit hardest when the job market turns south. Consider what happened to high-school dropouts a little more than a decade ago. Their unemployment rate dropped below 6% in 2006 near the end of a historic housing boom, then shot up to more than 15% when the economy crumbled. Many construction, manufacturing and retail jobs disappeared.
The unemployment rate for high-school dropouts fell to 5 percent last year. In the past year, median weekly wages for the group rose more than 6 percent, outpacing all other groups. But if the economy turns toward recession, such improvement could again reverse quickly. ``The periods of high unemployment are really terrible,'' Ms. Yellen said.
The second risk is that this opportune moment in a long business cycle might be masking long-running trends that still disadvantage many workers. A long line of academic research shows that automation and competition from overseas threaten the work of manufacturing workers and others in mid- skill jobs, such as clerical work, that can be replaced by machines or low-cost workers elsewhere.
The number of receptionists in America, at 1.015 million in 2017, was 86,000 less than a decade earlier, according to the Labor Department. Their annual wage, at $29,640, was down 5 percent when adjusted for inflation.
Tougher trade deals being pushed by the Trump Administration might help to claw some manufacturing jobs back, but economists note that automation has many of the same effects on jobs in manufacturing and the service section as globalization, replacing tasks that tend to be repeated over and over again.
Andrew McAfee, co-director of the MIT Initiative on the Digital Economy, said the next recession could be the moment when businesses deploy artificial intelligence, machine learning and other emerging technologies in new ways that further threaten mid-skill work.
``Recessions are a prime opportunity for companies to reexamine what they're doing, trim headcount and search for ways to automate,'' he said. ``The pressure to do that is less when a long, long expansion is going on.''
With these forces in play, many economists predict a barbell job market will take hold, playing to the favor of low- and high-skill workers and still disadvantaging many in the middle.
The U.S. is adding jobs in low-skilled services sectors. Four of the six occupations the Labor Department expects to add the most jobs through 2026 require, at most, a high- school diploma. Personal-care aide, a job that pays about $11 an hour to help the elderly and disabled, is projected to add 778,000 jobs in the decade ended in 2026, the most of 819 occupations tracked. The department expects the economy to add more than half a million food-prep workers and more than a quarter million janitors.
Those low-skill workers are reaping pay gains in part because there aren't a lot of people eager to fill low-skill jobs anymore. Only about 6 percent of U.S. workers don't hold a high school diploma, down from above 40 percent in the 1960s, according research by MIT economist David Autor.
James O. Wilson dropped out of high school in the 10th grade and started selling drugs, which eventually led to a lengthy incarceration. When Mr. Wilson, 59, was released in 2013 he sought out training at Goodwill, where he learned to drive a forklift. Those skills led him to a part-time job at a FedEx Corp. facility at an Indianapolis airport. He was promoted to a full-time job in 2017 and is now earning more than $16 an hour. He has a house with his wife and enjoys taking care of his cars, including a prized Cadillac.
``I wanted to show FedEx you can take a person, and he can change,'' he said. ``I want FedEx to say, `Do you have any more people like him?` ''
Skilled workers in high-tech and managerial positions are also benefiting from the high-pressure labor market, particularly in thriving cities. Of 166 sectors that employ at least 100,000 Americans, software publishing pays the highest average wages, $59.81 an hour in the fourth quarter of 2018. Wages in the field grew 5.5 percent from a year earlier, well outpacing 3.3 percent overall growth in hourly pay. The average full-time employee in the sector already earns more than $100,000 a year.
Other technical industries, scientific research and computer systems design, were also among the five best paying fields. Some of the hottest labor markets in the U.S.-- including Austin, Texas; San Jose, Calif.; and Seattle--have more than twice the concentration of technical jobs as the country on average.
A Wall Street Journal analysis of Moody's Analytics data found Austin to be the hottest labor market in the country among large metros. It ranked second in job growth, third for share of adults working and had the sixth-lowest unemployment rate last year, among 53 regions with a population of more than a million. San Jose, the second-hottest labor market, had the lowest average unemployment rate last year and the second-best wage growth.
While a strong economy is conveying benefits to a broad swath of Americans, those in rural areas aren't experiencing the same lift from the rising tide.
In metro areas with fewer than 100,000 people and in rural America, the average unemployment last year was half a percentage point higher compared to metro areas with more than a million people, according to an analysis by job search site Indeed.com.
``Finding work can be challenging for rural job-seekers because rural workers and employers both have fewer options,'' said Indeed economist Jed Kolko. ``Many rural areas have slow-growing or shrinking populations.''
Bradley Cox lives in Vevay, Ind., a rural community of fewer than 2,000 people. The 23-year-old graduated with a bachelor's degree in business administration and liberal arts from Indiana University East in December, but said he had found opportunities limited in his region.
After years working in hourly positions at a casino, he took a job last summer as a cashier at a CVS Health Corp. drug store, making about $12 an hour. He hoped to work at a bank, or perhaps in a traveling sales role, making use of his business degree. ``But to be honest, for me to do that, I would have to move to one of the cities or commute to one of the cities, at least,'' he says. ``I don't have the opportunity around where I live.''
Other workers are employed--but need to string together two or more jobs to make ends meet.
Michelle Blandy, 48, had a full-time digital marketing job in Phoenix but hasn't been able to find steady work since moving to Harrisburg, Pa., to be closer to her family. Instead she's pieced together some freelance projects, occasionally drives for Lyft and sells refurbished jewelry boxes on Etsy. ``I have applied for full-time jobs, I just didn't have any luck,'' she said. ``Harrisburg is tiny compared to Phoenix. There's not as many tech companies or big companies here that are hiring.''
The good news is this long run of low unemployment could last for a while. Economic theory holds that when unemployment is very low, it stirs inflation, which causes the Federal Reserve to raise short-term interest rates and short-circuit growth and hiring. That kind of cycle ended the 1960s period of low unemployment, but inflation in this period remains below the Fed's target of 2 percent.
That has allowed the Fed to keep rates low. By January 1970, when the unemployment rate was 3.9 percent, the Fed had raised its target short-term interest rate to more than 8 percent to fight inflation. By contrast, when the jobless rate fell below 4 percent last year, the Fed kept its target rate below 2.5 percent thanks to low inflation.
``It may turn out that lower unemployment proves to be more sustainable than it was in the 1960s,'' says Ms. Yellen. ``I think we don't know yet.''
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Mr. BURGESS. Again, I would point out that since the inauguration of Donald Trump, our labor market has, in fact, experienced a resurgence that a rising tide is indeed lifting all boats. It is incumbent upon us not to damage the economy that has brought the benefit to so many people--so many of those forgotten Americans--who were denied that benefit before, those very Americans to whom President Trump committed at the time of his inauguration in January 2017.
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Mr. BURGESS. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, if the previous question is defeated, I will offer an amendment to the resolution.
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Mr. BURGESS. Madam Speaker, I yield 5 minutes to the gentlewoman from Arizona (Mrs. Lesko) to explain the amendment.
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Mr. BURGESS. Madam Speaker, I yield an additional 3 minutes to the gentlewoman from Arizona.
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Mr. BURGESS. Madam Speaker, I yield myself the balance of my time.
Madam Speaker, while this resolution attempts to increase protections against wage discrimination based on sex, it does not significantly improve what already exists in current law.
I agree with my Democratic friends that there should be no tolerance for wage discrimination based on sex or for any other factor protected under the Equal Pay or Civil Rights Act, but this bill is not the way to do so.
So, Madam Speaker, as we conclude, I urge a ``no'' on the previous question, ``no'' on the underlying measure, and I yield back the balance of my time.
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Mr. BURGESS. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
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Mr. BURGESS. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
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