I 112th CONGRESS 1st Session H. R. 3108 IN THE HOUSE OF REPRESENTATIVES October 5, 2011 Ms. Norton introduced the following bill; which was referred to the Committee on House Administration, and in addition to the Committees on the Judiciary and Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Congressional Accountability Act of 1995 to provide enhanced enforcement authority for occupational safety and health protections applicable to the legislative branch, to provide whistleblower protections and other antidiscrimation protections for employees of the legislative branch, and for other purposes.
1.
Short title
This Act may be cited as the Congress Leads by Example Act of 2011.
2.
Enhanced enforcement of protections of occupational safety and health act applicable to legislative branch
(a)
Subpoena Authority for Office of Compliance
Section 215(c)(1) of the Congressional Accountability Act of 1995 (2 U.S.C. 1341(c)(1)) is amended— (1)by striking subsections (a), and inserting subsections (a), (b),; and (2)by striking 657(a), and inserting 657(a), (b),. (b)
Recordkeeping Requirements for Employing Offices
Section 215(c) of such Act (2 U.S.C. 1341(c)) is amended— (1)by redesignating paragraphs (3) through (6) as paragraphs (4) through (7); (2)in paragraph (6), as so redesignated, by striking paragraph (3) or (4) and inserting paragraph (4) or (5); and (3)by inserting after paragraph (2) the following new paragraph: (3)
Recordkeeping requirements
Each employing office shall be subject to the requirements of subsection (c) of section 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657(c)) that are applicable to employers under such section, and the General Counsel shall exercise the authorities granted to the Secretary of Labor under such subsection. . (c)
Prohibiting Retaliation
(1)
In general
Section 215 of such Act (2 U.S.C. 1341) is amended— (A)by redesignating subsections (d), (e), (f), and (g) as subsections (e), (f), (g), and (h); and (B)by inserting after subsection (c) the following new subsection: (d)
Prohibiting retaliation
(1)
In general
An employing office may not discharge or in any manner discriminate against any covered employee because such employee has requested the General Counsel to take any action authorized under this section, or has instituted or caused to be instituted, or has testified or is about to testify in, any proceeding that arises from the application of this section to the employing office, or because of the exercise by such employee on behalf of himself or others of any right provided under this section. (2)
Enforcement
(A)
Charge filed with general counsel
Any covered employee who believes that he has been discharged or otherwise discriminated against by an employing office in violation of paragraph (1) may file a charge against the employing office with the General Counsel not later than 180 days after the occurrence of the alleged violation. The General Counsel shall investigate the charge. (B)
Mediation
If, upon investigation under subparagraph (A), the General Counsel believes that a violation of paragraph (1) may have occurred and that mediation may be helpful in resolving the dispute, the General Counsel may request mediation under subsections (b) through (d) of section 1403 between the covered employee and the employing office. (C)
Complaint; hearing; Board review
If mediation under subparagraph (B) has not succeeded in resolving the dispute (or if the General Counsel does not request mediation under such subparagraph) and the General Counsel believes that a violation of paragraph (1) may have occurred, the General Counsel may file with the Office a complaint against the employing office. The complaint shall be submitted to a hearing officer for decision pursuant to subsections (b) through (h) of section 1405 and any person who has filed a charge under subparagraph (A) may intervene as of right, with the full rights of a party. The decision of the hearing officer shall be subject to review by the Board pursuant to section 1406. (D)
Judicial review
An individual who is aggrieved by a final decision of the Board under subparagraph (C) may file a petition for review in the United States Court of Appeals for the Federal Circuit, pursuant to section 1407. . (2)
Conforming amendments
Section 215 of such Act (2 U.S.C. 1341) is amended— (A)in subsection (g), as redesignated by paragraph (1)(A), by striking subsection (e)(1) and inserting subsection (f)(1) and by striking subsection (e)(2) and inserting subsection (f)(2); and (B)in subsection (h)(1), as redesignated by paragraph (1)(A), by striking (e)(3) and inserting (f)(3). (d)
Effective Date
(1)
In general
Subject to paragraph (2), the amendments made by this section shall take effect upon the adoption of regulations promulgated by the Board of Directors of the Office of Compliance to implement the amendments in accordance with section 304 of the Congressional Accountability Act of 1995 (2 U.S.C. 1384). (2)
Interim applicability
During the period that begins on the date of the enactment of this Act and ends on the effective date of the regulations referred to in paragraph (1), the amendments made by this section shall be implemented by the Board of Directors of the Office of Compliance, the General Counsel of the Office of Compliance, or a hearing officer or court under the Congressional Accountability Act of 1995 (as the case may be) by applying (to the extent necessary and appropriate) the most relevant substantive executive agency regulations promulgated to implement the provisions of law that are made applicable to employing offices and covered employees (as such terms are defined in the Congressional Accountability Act of 1995) by such amendments.
3.
Application to legislative branch employees of whistleblower protection rules and restrictions on discharge by reason of garnishment and discriminatory treatment by reason of bankruptcy
(a)
In General
Part A of title II of the Congressional Accountability Act of 1995 (2 U.S.C. 1311 et seq.) is amended— (1)in the heading, by striking fair labor standards, and all that follows and inserting and other protections and benefits; (2)by redesignating section 207 as section 209; and (3)by inserting after section 206 the following new sections:
207.
Rights and protections under whistleblower protection rules
(a)
Rights and Protections Described
(1)
In general
No employing office may take or fail to take, or threaten to take or fail to take, a personnel action (within the meaning of chapter 23 of title 5, United States Code) with respect to any covered employee or applicant for employment because of— (A)any disclosure of information by a covered employee or applicant which the employee or applicant reasonably believes evidences— (i)a violation of any law, rule, or regulation, or (ii)gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order or the rules of the House of Representatives or Senate to be kept secret in the interest of national defense or the conduct of foreign affairs; or(B)any disclosure to the General Counsel, or to the Inspector General of an executive agency or office of the legislative branch or another employee designated by the head of the agency or office to receive such disclosures, of information which the employee or applicant reasonably believes evidences— (i)a violation of any law, rule, or regulation, or (ii)gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. (2)
Definitions
For purposes of this section and for purposes of applying the procedures established under title IV for the consideration of alleged violations of this section— (A)the term covered employee includes an employee of the Government Accountability Office or Library of Congress; and (B)the term employing office includes the Government Accountability Office and the Library of Congress. (b)
Remedy
The remedy for a violation of subsection (a) shall be such remedy as would be appropriate if awarded under chapter 12 of title 5, United States Code, with respect to a prohibited personnel practice described in section 2302(b)(8) of such title. (c)
Regulations To Implement Section
(1)
In general
The Board shall, pursuant to section 304, issue regulations to implement this section. (2)
Agency regulations
The regulations issued under paragraph (1) shall be the same as the substantive regulations promulgated by the Merit Systems Protection Board to implement chapters 12 and 23 of title 5, United States Code, except to the extent that the Board of Directors of the Office of Compliance may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this section.
208.
Restriction on discharge from employment by reason of garnishment or discriminatory treatment by reason of bankruptcy
(a)
Garnishment
(1)
Rights and protections described
No employing office may discharge any covered employee by reason of the fact that the employee’s earnings have been subjected to garnishment for any one indebtedness. (2)
Remedy
The remedy for a violation of paragraph (1) shall be such remedy as would be appropriate if awarded under section 304(b) of the Consumer Credit Protection Act (15 U.S.C. 1674(b)). (b)
Bankruptcy
(1)
Rights and protections described
No employing office may deny employment to, terminate the employment of, or discriminate with respect to employment against, a covered employee who is or has been a debtor under title 11, United States Code, or a bankrupt or a debtor under the Bankruptcy Act, or another covered employee with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor— (A)is or has been a debtor under such title or a debtor or bankrupt under such Act; (B)has been insolvent before the commencement of a case under such title or during the case but before the grant or denial of a discharge; or (C)has not paid a debt that is dischargeable in a case under such title or that was discharged under such Act. (2)
Remedy
The remedy for a violation of paragraph (1) would be such remedy as would be appropriate if awarded with respect to a violation of section 525(a) or (b) of title 11, United States Code. (c)
Definitions
For purposes of this section and for purposes of applying the procedures established under title IV for the consideration of alleged violations of this section— (1)the term covered employee includes an employee of the Government Accountability Office or the Library of Congress; and (2)the term employing office includes the Government Accountability Office and the Library of Congress. (d)
Regulations To Implement Section
(1)
In general
The Board shall, pursuant to section 304, issue regulations to implement this section. (2)
Agency regulations
The regulations issued under paragraph (1) shall be the same as the substantive regulations promulgated to implement section 304 of the Consumer Credit Protection Act (15 U.S.C. 1674) and the substantive regulations promulgated to implement section 525 of title 11, United States Code, except to the extent that the Board of Directors of the Office of Compliance may determine, for good cause shown and stated together with the regulation, that a modification of any such regulation would be more effective for the implementation of the rights and protections under this section.
. (b)
Conforming Amendment to Bankruptcy Code
Section 525 of title 11, United States Code, is amended by adding at the end the following new subsection: (d)(1)In the case of an alleged violation of subsection (a) or (b) by a governmental unit which is a legislative branch employing office with respect to an employee of such office who is a legislative branch covered employee, the procedures for consideration of the alleged violation shall consist of the procedures applicable under title IV of the Congressional Accountability Act of 1995. (2)In this subsection— (A)the term legislative branch employing office means an employing office described in section 101(9) of the Congressional Accountability Act of 1995, and includes the Government Accountability Office and the Library of Congress; and (B)the term legislative branch covered employee means a covered employee described in section 101(3) of the Congressional Accountability Act of 1995, and includes an employee of the Government Accountability Office or the Library of Congress. . (c)
Other Conforming Amendment
Section 102(a) of the Congressional Accountability Act of 1995 (2 U.S.C. 1302(a)) is amended by adding at the end the following new paragraphs: (12)Section 2302(b)(8) of title 5, United States Code. (13)Section 304 of the Consumer Credit Protection Act (15 U.S.C. 1674). (14)Section 525 of title 11, United States Code. . (d)
Clerical Amendment
The table of contents for part A of title II of the Congressional Accountability Act of 1995 is amended— (1)in the item relating to part A, by striking Fair Labor Standards, and all that follows and inserting and Other Protections and Benefits; (2)by redesignating the item relating to section 207 as relating to section 209; and (3)by inserting after the item relating to section 206 the following: Sec. 207. Rights and protections under whistleblower protection rules. Sec. 208. Restriction on discharge from employment by reason of garnishment or discriminatory treatment by reason of bankruptcy. .
4.
Requiring retention of records necessary to administer anti-discrimination laws applicable to covered employees
(a)
Title VII of the Civil Rights Act; Age Discrimination in Employment Act; Americans with Disabilities Act
Section 201 of the Congressional Accountability Act of 1995 (2 U.S.C. 1311) is amended— (1)by redesignating subsections (c) and (d) as subsections (d) and (e); and (2)by inserting after subsection (b) the following new subsection: (c)
Retention of Records
(1)
Requiring employing offices to retain records necessary to administer rights and protections
To the extent that the following provisions of law require the keeping of records necessary or appropriate for the administration of this section, such provisions of law shall apply to employing offices: (A)Section 709(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–8(c)). (B)Section 7(a) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(a)). (C)Section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)). (2)
Effective date
This subsection shall apply with respect to records generated on or after the expiration of the 60-day period that begins on the date of the enactment of this subsection. . (b)
Family and Medical Leave Act of 1993
(1)
In general
Section 202(a)(1) of such Act (2 U.S.C. 1312(a)(1)) is amended by striking sections 101 through 105 and inserting sections 101 through 105 and section 106(b). (2)
Effective date
(A)
In general
Subject to subparagraph (B), the amendment made by paragraph (1) shall take effect upon the adoption of regulations promulgated by the Board of Directors of the Office of Compliance to implement the amendment. (B)
Interim applicability
During the period that begins on the date of the enactment of this Act and ends on the effective date of the regulations referred to in subparagraph (A), the amendment made by paragraph (1) shall be implemented by the Board of Directors of the Office of Compliance or a hearing officer or court under the Congressional Accountability Act of 1995 (as the case may be) by applying (to the extent necessary and appropriate) the most relevant substantive executive agency regulations promulgated to implement the provision of law that is made applicable to employing offices and covered employees (as such terms are defined in the Congressional Accountability Act of 1995) by such amendment. (c)
Fair Labor Standards Act of 1938
(1)
In general
Section 203(a)(1) of such Act (2 U.S.C. 1313(a)(1)) is amended— (A)by striking and section 12(c) and inserting section 11(c), and section 12(c); and (B)by striking 212(c) and inserting 211(c), 212(c). (2)
Effective date
(A)
In general
Subject to subparagraph (B), the amendment made by paragraph (1) shall take effect upon the adoption of regulations promulgated by the Board of Directors of the Office of Compliance to implement the amendment. (B)
Interim applicability
During the period that begins on the date of the enactment of this Act and ends on the effective date of the regulations referred to in subparagraph (A), the amendment made by paragraph (1) shall be implemented by the Board of Directors of the Office of Compliance or a hearing officer or court under the Congressional Accountability Act of 1995 (as the case may be) by applying (to the extent necessary and appropriate) the most relevant substantive executive agency regulations promulgated to implement the provision of law that is made applicable to employing offices and covered employees (as such terms are defined in the Congressional Accountability Act of 1995) by such amendment.
5.
Requiring employing offices to post notice of rights of covered employees and provide training regarding rights and remedies
(a)
In General
Title V of the Congressional Accountability Act of 1995 (2 U.S.C. 1431 et seq.) is amended by inserting after section 506 the following new section:
507.
Requiring employing offices to post notice of rights of covered employees and provide training regarding rights and remedies
(a)
Notices of Rights
Each employing office shall post and keep posted (in conspicuous places upon its premises where notices to covered employees are customarily posted) notices provided by the Board that describe the rights and protections applicable to covered employees of the office under this Act or any other Federal law made applicable to covered employees pursuant to this Act. (b)
Training
Each employing office shall provide to the covered employees of such office training regarding the rights and protections and remedies applicable to such employees under this Act or any other Federal law relating to the terms and conditions of employment. (c)
Effective date
This section shall take effect 60 days after the date of the enactment of this section.
. (b)
Clerical Amendment
The table of contents of such Act is amended by amending the item relating to section 507 to read as follows: Sec. 507. Requiring employing offices to post notice of rights of covered employees and provide training regarding rights and remedies. .
6.
Coverage of legislative branch employees under rules protecting jurors’ employment
(a)
In General
Section 1875(a) of title 28, United States Code, is amended— (1)by striking (a) and inserting (a)(1); and (2)by adding at the end the following: (2)In this section— (A)the term employer includes an employing office under section 101(9) of the Congressional Accountability Act of 1995, the Government Accountability Office, the Government Printing Office, and the Library of Congress; and (B)the term permanent employee includes any covered employee under section 101(3) of the Congressional Accountability Act of 1995 and any employee of the Government Accountability Office, the Government Printing Office, and the Library of Congress, without regard to whether the employee’s term of service or appointment is permanent. . (b)
Effective Date
The amendments made by subsection (a) apply with respect to individuals summoned for juror service or serving on juries on or after the date of the enactment of this Act.