Enforcement

(a) In general (1) Definition For purposes of this subsection: (A) Covered individual The term covered individual means a covered individual— (i) described in section 2(7)(A) (other than covered individuals described in clauses (iii) through (v) of such section); or (ii) described in section 2(7)(B) with respect to an employer. (B) Employer The term employer means an employer described in subclause (I) or (II) of section 2(9)(A)(i). (2) Enforcement by the Worker Protection and Technology Division (A) Investigation (i) In general To ensure compliance with the provisions of this Act, or any regulation or order issued under this Act, the Secretary, acting through the Administrator— (I) shall have the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)), with respect to employers, covered individuals, and third parties and service providers with respect to employers; and (II) may require, by general or special orders, an employer or third party or service provider with respect to the employer, to file with the Secretary, in such form as the Secretary may prescribe, annual or special reports or answers in writing to specific questions, furnishing to the Secretary such information or records as the Secretary may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals, of the employer. (ii) Reports and answers An employer or third party or service provider with respect to the employer shall file the reports and answers (including information and records) required under clause (i)(II) in such manner, including under oath or otherwise, and within such reasonable time period as the Secretary may require. (iii) Joint investigations The Secretary, acting through the Administrator, may conduct investigations and make requests for information, as authorized under this Act, on a joint basis with another Federal agency, a State attorney general, or a State agency. (iv) Obligation to keep, preserve, and make available records An employer or third party or service provider with respect to the employer shall make, keep, preserve, and make available to the Secretary records pertaining to compliance with this Act in accordance with section 11(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(c)) and in accordance with any regulation or order issued by the Secretary. (B) Enforcement With respect to employers, covered individuals, and third parties and service providers with respect to employers, the Secretary, acting through the Administrator, shall receive, investigate, and attempt to resolve complaints of violations of section 3, 4, 5, or 8 in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207). (C) Priority For purposes of subparagraphs (A) and (B), the Secretary shall prioritize industries with high rates of employee data collection and at high risk of workplace-surveillance-related health impacts. (D) Referral for criminal proceedings If the Secretary, in the course of the performance of any act or duty under this Act, obtains evidence that any employer has engaged in conduct that may constitute a violation of Federal criminal law, the Secretary shall refer the matter to the Attorney General for prosecution under any applicable law. Nothing in this paragraph shall affect any other authority of the Secretary to disclose information. (E) Litigation The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under this subsection. (3) Private right of action (A) In general (i) Covered individual Notwithstanding any action by the Secretary under paragraph (2)(B), any covered individual adversely affected by an alleged violation of section 3, 4, 5, or 8, may commence a civil action against any person that violates such section in any Federal court of competent jurisdiction. (ii) Labor organization Notwithstanding any action by the Secretary under paragraph (2)(B), any labor organization adversely affected by an alleged violation of 5 or 8 may commence a civil action against any person that violates such section in any Federal court of competent jurisdiction. (B) Relief (i) In general In a civil action brought under subparagraph (A) in which the covered individual or labor organization prevails, the court shall award the covered individual or labor organization— (I) damages of not less than an amount equal to twice the sum of any actual damages sustained by the covered individual; (II) statutory damages described in clause (iv); (III) injunctive relief; and (IV) equitable relief. (ii) Attorney's fees In a civil action brought under subparagraph (A) in which the covered individual or labor organization prevails, the court shall award the covered individual or labor organization reasonable attorney's fees and litigation costs. (iii) Temporary relief for whistleblowers In a civil action brought under subparagraph (A) regarding a violation of section 8, the court may award the covered individual or labor organization temporary relief while the case is pending, including reinstatement. (iv) Statutory damages The court may, in accordance with clause (v), award statutory damages under clause (i)(II) against a person in the following amounts: (I) Failure to comply with disclosure requirements For a violation of section 4 and section 8(b), the court may award— (aa) for the first such violation, damages of an amount not more than $500 for each covered individual impacted; and (bb) for any subsequent violation, damages for each covered individual impacted in an amount of not more than $500 more than the amount of the damages awarded per covered individual for the violation immediately preceding such subsequent violation. (II) Violation of employee data minimization requirements or employee data accessibility requirements For each violation of section 3 or 5, the court may award— (aa) damages of an amount not less than $5,000 and not more than $20,000; or (bb) for any willful or repeated violation, damages of an amount not less than $10,000 and not more than $40,000. (III) Retaliation on whistleblowers For each violation of section 8(a), the court may award— (aa) damages of an amount not less than $5,000 and not more than $50,000; or (bb) for any willful or repeated violation, damages of an amount not less than $10,000 and not more than $100,000. (v) Considerations for statutory damages In determining the amount of statutory damages assessed under clause (iv), the court shall consider any relevant circumstances presented by the parties to the action, including— (I) the nature and seriousness of the violation; (II) the number of violations; (III) the persistence of the misconduct; (IV) the length of time over which the misconduct occurred; (V) the willfulness of the misconduct of person; and (VI) the assets, liabilities, and net worth of the person. (C) Remedies for state employees (i) Waiver of sovereign immunity A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution of the United States or otherwise, to a suit brought by a covered individual of that program or activity, or a labor organization representing such a covered individual, under this paragraph for equitable, legal, or other relief authorized under this paragraph. (ii) Official capacity An official of a State may be sued in the official capacity of the official by any covered individual or such a labor organization who has complied with the procedures under this paragraph, for injunctive relief that is authorized under this paragraph. In such a suit the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes (42 U.S.C. 1988). (iii) Applicability With respect to a particular program or activity, clause (i) applies to conduct that occurs— (I) after the date of enactment of this Act; and (II) on or after the day on which a State first receives or uses Federal financial assistance for that program or activity. (iv) Definition of program or activity In this subparagraph, the term program or activity has the meaning given the term in section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–4a). (D) Remedies for Tribal government employees (i) Waiver of sovereign immunity A Tribal government's receipt or use of Federal financial assistance for any program or activity of the Tribal government shall constitute a waiver of sovereign immunity to a suit brought by a covered individual of that program or activity, or a labor organization representing such a covered individual, under this paragraph for equitable, legal, or other relief authorized under this paragraph. (ii) Official capacity An official of a Tribal government may be sued in the official capacity of the official by any covered individual or such a labor organization who has complied with the procedures under this paragraph for injunctive relief that is authorized under this paragraph. In such a suit the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes (42 U.S.C. 1988). (iii) Applicability With respect to a particular program or activity, clause (i) applies to conduct that occurs— (I) after the date of enactment of this Act; and (II) on or after the day on which a Tribal government first receives or uses Federal financial assistance for that program or activity. (iv) Definition of program or activity In this subparagraph, the term program or activity has the meaning given the term in section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–4a). (4) Enforcement by the government accountability office and library of congress Notwithstanding any other provision of this subsection, in the case of the Government Accountability Office and the Library of Congress, the authority of the Secretary under this subsection shall be exercised respectively by the Comptroller General of the United States and the Librarian of Congress, respectively. (b) Employees covered by congressional accountability act of 1995 The powers, remedies, and procedures provided in the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.) to the Board (as defined in section 101 of that Act (2 U.S.C. 1301)), or any person, alleging a violation of section 202(a)(1) of that Act (2 U.S.C. 1312(a)(1)) shall be the powers, remedies, and procedures this Act provides to that Board, or any person, with regard to an allegation of a violation of section 3, 4, 5, or 8 against a covered individual described in section 2(7)(A)(iii) or described in section 2(7)(B) with respect to an employer described in section 2(9)(A)(i)(III). (c) Employees covered by chapter 5 of title 3, united states code The powers, remedies, and procedures provided in chapter 5 of title 3, United States Code, to the President, the Merit Systems Protection Board, or any person, alleging a violation of section 412(a)(1) of that title, shall be the powers, remedies, and procedures this Act provides to the President, that Board, or any person, respectively, with regard to an allegation of a violation of section 3, 4, 5, or 8 against a covered individual described in section 2(7)(A)(iv) or described in section 2(7)(B) with respect to an employer described in section 2(9)(A)(i)(IV). (d) Employees covered by chapter 63 of title 5, united states code The powers, remedies, and procedures provided in title 5, United States Code, to an employing agency, provided in chapter 12 of that title to the Merit Systems Protection Board, or provided in that title to any person, alleging a violation of chapter 63 of that title, shall be the powers, remedies, and procedures this Act provides to that agency, that Board, or any person, respectively, with regard to an allegation of a violation of section 3, 4, 5, or 8 against a covered individual described in section 2(7)(A)(v) or described in section 2(7)(B) with respect to an employer described in section 2(9)(A)(i)(V). (e) Enforcement by States (1) In general In any case in which a State attorney general or a State privacy regulator has reason to believe that an interest of the residents of a State has been or is adversely affected by any person who violates any provision of section 3, 4, 5, or 8, including a regulation or order prescribed under this Act, the State attorney general or State privacy regulator, as parens patriae, may bring a civil action on behalf of the residents of the State in an appropriate State court or an appropriate district court of the United States to— (A) enjoin further violation of such provision by the person; (B) compel compliance with such provision; (C) obtain damages, civil penalties, restitution, or other compensation on behalf of the residents of the State; or (D) obtain reasonable attorney's fees and other litigation costs reasonably incurred. (2) Rights of agency Before initiating a civil action under paragraph (1), the State attorney general or State privacy regulator, as the case may be, shall notify the Secretary in writing of such civil action. Upon receiving such notice, the Secretary may— (A) intervene in such action; and (B) upon intervening— (i) be heard on all matters arising in such civil action; and (ii) file petitions for appeal of a decision in such action. (3) Preemptive action by agency In any case in which a civil action is instituted by or on behalf of the Secretary for violation of this Act or a regulation promulgated under this Act, a State attorney general or State privacy regulator may not, during the pendency of such action, institute a civil action against any defendant named in the complaint in the action instituted by or on behalf of the Secretary for a violation that is alleged in such complaint. In a case brought by the Secretary that affects the interests of a State, the State attorney general or State privacy regulator may intervene as of right pursuant to the Federal Rules of Civil Procedure. (4) Preservation of State powers Except as provided in paragraph (3), no provision of this subsection shall be construed as altering, limiting, or affecting the authority of a State attorney general or State privacy regulator to— (A) bring an action or other regulatory proceeding arising solely under the laws in effect in that State; or (B) exercise the powers conferred on the State attorney general or State privacy regulator by the laws of the State, including the ability to conduct investigations, administer oaths or affirmations, or compel the attendance of witnesses or the production of documentary or other evidence. (f) Liability of an employer for a violation by a service provider that collect employee data A violation of section 3 by a service provider that collects employee data shall be considered a violation of such section by the employer if the employer knew or should have known about such violation. (g) Arbitration and class action Notwithstanding any other provision of law, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to any alleged violation of section 3, 4, 5, or 8.