[Congressional Record Volume 141, Number 153 (Thursday, September 28, 1995)]
[Senate]
[Pages S14542-S14544]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 ADVANCE NOTICE OF PROPOSED RULEMAKING

  Mr. THURMOND. Mr. President, pursuant to Section 304(b) of the 
Congressional Accountability Act of 1995 (2 U.S.C. sec. 1384(b)), a 
advance notice of proposed rulemaking was submitted by the Office of 
Compliance, United States Congress. The advance notice seeks comment on 
a number of regulatory issues arising under the Congressional 
Accountability Act.
  Section 304(b) requires this notice to be printed in the 
Congressional Record, therefore I ask unanimous consent that the notice 
be printed in the Record.
  There being no objection, the notice was ordered to be printed in the 
Record, as follows:

                          Office of Compliance

(The Congressional Accountability Act of 1995: Extension of Rights and 
Protections Under the Family and Medical Leave Act of 1993, Fair Labor 
   Standards Act of 1938, Employee Polygraph Protection Act of 1988, 
    Worker Adjustment and Retraining Notification Act and Uniformed 
            Services Employment and Reemployment Rights Act)


                 ADVANCE NOTICE OF PROPOSED RULEMAKING

                                Summary

       The Board of Directors of the Office of Compliance 
     (``Board'') invites comments from employing offices [use 
     appropriate definition for separate House and Senate 
     publication], covered employees and other interested persons 
     on matters arising in the issuance of regulations under 
     sections 202(d)(2), 203(c)(2), 204(c)(2), 205(c)(2) and 
     206(c)(2) of the Congressional Accountability Act of 1995 (PL 
     104-1) (``CAA'' or ``Act'').
       The Act authorizes the Board to issue regulations to 
     implement sections 202, 203, 204, 205 and 206 of the Act. The 
     Board issues this Advance Notice of Proposed Rulemaking to 
     solicit comments from interested individuals and groups in 
     order to encourage and obtain participation and information 
     as early as possible in the development of regulations. In 
     this regard, the Board invites and encourages commentors to 
     identify areas or specific issues they believe should be 
     addressed in regulations and to submit supporting background 
     information and rationale as to what the regulatory guidance 
     should be. In addition to receiving written comments, the 
     Office will consult with interested parties in order to 
     further its understanding of the need for and content of 
     appropriate regulatory guidance.
       The Board is today, in a separate notice, also publishing 
     proposed rules under section 204(a)(3) of the Congressional 
     Accountability Act relating to the Capitol Police's use of 
     lie detector tests under the Employee Polygraph Protection 
     Act of 1988.
       In addition to the foregoing, by this Notice, the Board 
     seeks comments as to certain specific matters before 
     promulgating proposed rules under section 202 through 206 of 
     the Act.
       Dates.--Interested parties may submit comments within 30 
     days after the date of publication of this Advance Notice in 
     the Congressional Record.
       Addresses.--Submit written comments (an original and 10 
     copies) to the Chair of the Board of Directors, Office of 
     Compliance, Room LA 200, Library of Congress, Washington, DC 
     20540-1999. Those wishing to receive notification of receipt 
     of comments are requested to include a self-addressed, 
     stamped post card. Comments may also be transmitted by 
     facsimile (``Fax'') machine to (202) 252-3115. This is not a 
     toll-free call. Copies of comments submitted by the public 
     will be available for review at the Law Library Reading Room, 
     Room LM-201, Law Library of Congress, James Madison Memorial 
     Building, Washington, DC., Monday through Friday, between the 
     hours of 9:30 a.m. and 4:00 p.m.
       For further information contact.--Executive Director, 
     Office of Compliance at (202) 252-3100. This notice is also 
     available in the following formats: large print, braille, 
     audio tape, and electronic file on computer disk. Requests 
     for this notice in an alternative format should be made to 
     Mr. Russell Jackson, Director, Service Department, Office of 
     the Sergeant at Arms and Doorkeeper of the Senate, 202-244-
     2705.

                               Background

       The Congressional Accountability Act of 1995 applies the 
     rights and protections of eleven federal labor and employment 
     law statutes to covered Congressional employees and employing 
     offices. The Board of Directors of the Office of Compliance 
     established under the CAA invites comments before 
     promulgating proposed rules under sections 202, 203, 204, 205 
     and 206 of that Act. The above-referenced sections of the CAA 
     respectively apply the rights and protections of the Family 
     and Medical Leave Act of 1993, 29 U.S.C. 2611 et seq. 
     (``FMLA''); the Fair Labor Standards Act of 1938, 29 U.S.C. 
     201 et seq. (``FLSA''); the Employee Polygraph Protection Act 
     of 1988, 29 U.S.C. 2001 et seq. (``EPPA''); the Worker 
     Adjustment and Retraining Notification Act, 29 U.S.C. 2101 et 
     seq. (``WARN''); and the Uniformed Services Employment and 
     Reemployment Rights Act, 38 U.S.C. Chpt. 43. Each of those 
     sections authorizes the Board to issue regulations to 
     implement the section and further states that such 
     regulations ``shall be the same as the substantive 
     regulations promulgated by the Secretary of Labor to 
     implement * * * [the applicable statute] * * * except insofar 
     as the Board 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.''
       Section 304 of the CAA prescribes the procedure applicable 
     to the issuance of regulations by the Board for the 
     implementation of this Act. It furthers requires the Board to 
     recommend in the general notice of proposed rulemaking and in 
     the regulations whether the regulations should be approved by 
     resolution of the Senate, by resolution of the House of 
     Representatives, by concurrent resolution, or by joint 
     resolution.
       Section 411 of the CAA provides with respect to the 
     aforementioned sections that, ``if the Board has not issued a 
     regulation on a matter for which this Act requires a 
     regulation to be issued, the hearing officer, Board or court, 
     as the case may be, shall apply to the extent necessary and 
     appropriate, the most relevant substantive executive agency 
     regulation promulgated to implement the statutory provision 
     at issue in the proceeding.''
       The CAA requires that the Office of Compliance be open for 
     business on January 23, 1996. The statutes made applicable 
     under the aforementioned sections of the CAA become effective 
     for covered employees and employing offices on that date.
       These inter-related provisions of the CAA give the Board 
     various rulemaking options under section 202 through 206 of 
     the CAA. So that it may make a more fully informed decision 
     regarding the issuance of regulations (for each or all of the 
     relevant sections of the CAA), in addition to inviting and 
     encouraging comments on all relevant matters, the Board 
     requests comments on the following:
     1. General Issues Under the CAA
       a. Whether and to What Extent the Board Should Modify the 
           Regulations Promulgated by the Secretary of Labor
       The CAA directs the Board to issue regulations that ``shall 
     be the same as substantive regulations promulgated by the 
     Secretary of labor (``Secretary'') to implement * * * [the 
     applicable statutes] * * * except insofar as the Board 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'' (emphasis added). This 
     provision provides important guidance concerning how 
     employing offices, covered employees and other interested 
     persons should structure their comments in response to this 
     ANPR and related processes in order to be of maximum 
     assistance to the Board. Accordingly, 

[[Page S 14543]]
     the Board requests commentors who propose modifications to the 
     substantive regulations promulgated by the Secretary to 
     identify the ``good cause'' justification of such proposed 
     modification by stating how much modification would be ``more 
     effective'' for the implementation of the rights and 
     protections applied under the CAA. In addition, the Board 
     requests commentors to suggest technical changes in 
     nomenclature or other matters that may be deemed appropriate 
     in any regulation that might be issued.
       Section 304(a)(2) of the Act also requires the Board to 
     issue three separate bodies of regulations which shall apply, 
     respectively, to the Senate and its employees, the House and 
     its employees and all other covered employees and employing 
     offices. Certain employment practices and categories of 
     employees may be unique to one or more of these bodies.
       The Board invites comment regarding under what 
     circumstances, if any, such differences would warrant a 
     substantive difference in the applicable regulations.
       The Board further invites comment on whether and to what 
     extent it should modify the regulations promulgated by the 
     Secretary of Labor.
       b. Notice Posting and Recordkeeping Requirements
       The CAA does not expressly make reference to the notice 
     posting and recordkeeping requirements of the various 
     statutes applied to covered employees and employing offices. 
     For example, the notice posting and recordkeeping 
     requirements of section 106(b) and 109 of the FMLA and the 
     Secretary's regulations thereunder (29 U.S.C. sections 
     2616(b) and 2619; 29 C.F.R. sections 825.300 and 825.500) are 
     not expressly referenced in section 202 of the CAA, which 
     applies the rights and protections of the FMLA to covered 
     employees and employing offices. Similarly, the FLSA 
     recordkeeping requirements, 29 U.S.C. section 211(c), and the 
     Secretary's implementing regulations at 29 C.F.R. sections 
     516.0-516.34, are not expressly referenced in section 203 of 
     the CAA, which applies the right and protections of the FLSA 
     to covered employees and employing offices.
       It could be argued that notice posting and recordkeeping 
     requirements are an integral part of the rights and 
     protections of the applied statutes and thus are implicitly 
     included within the requirements of the CAA or that ``good 
     cause'' exists to modify the existing substantive regulations 
     by including some provision for notice-posting and 
     recordkeeping. Notice postings inform covered employees of 
     their rights and protections under the statutes and remind 
     employing offices of their responsibilities. Recordkeeping 
     enables an enforcement authority to determine the extent to 
     which an employing office has complied with applicable law 
     and, even in the absence of such authority, recordkeeping is 
     helpful to an employing office that may be faced with a 
     complaint from one if its employees.
       Alternatively, it could be argued that the lack of specific 
     reference in the CAA to the notice posting and recordkeeping 
     requirements of the applied laws evidences congressional 
     intent not to impose notice posting and recordkeeping 
     requirements on employing offices as part of the CAA. 
     Moreover, there is a concern that strictly-imposed notice 
     posting and recordkeeping requirements might impose a 
     significant and unforeseen costs on employing offices in 
     creating and maintaining records that it does not ordinarily 
     maintain. In addition, there may be constitutional or other 
     institutional prerogatives that notice posting and 
     recordkeeping requirements could be said to intrude upon.
       The Board invites comment on whether the notice posting and 
     recordkeeping requirements of the various laws made 
     applicable by the CAA are incorporated as statutory 
     requirements of the CAA and, if so, whether and to what 
     extent the Secretary's regulations implementing those 
     requirements should be adopted.
       The Board further invites comment on whether, assuming 
     notice posting and recordkeeping requirements are not 
     incorporated as statutory requirements of the CAA, the Board 
     (a) can and should develop its own notice posting and/or 
     recordkeeping requirements pursuant to its ``good cause'' 
     authority or (b) should propose guidelines regarding the 
     types and forms of records employing officials may wish to 
     keep in order to record the wages and working hours of 
     non-exempt employees. Commentors are encouraged to suggest 
     formats and contents which would be made available to 
     employing offices for their consideration.
     2. Specific Issues Under Individual Sections
       In addition to the preceding issues that arise under all 
     five sections of the CAA, the Board also requests comments on 
     the following matters arising under individual sections of 
     the Act.
       a. Issues Under Section 203 (Fair Labor Standards Act)
       The Fair Labor Standards Act sets forth requirements for 
     minimum wage and overtime pay (except for exempt employees), 
     equal pay for equal work, and a prohibition on oppressive 
     child labor. With respect to overtime pay, employers must pay 
     all non-exempt employees overtime pay of one and one-half 
     times their hourly rate for each hour worked in excess of 40 
     hours per workweek. The regulations of the Secretary set 
     forth specific criteria as to whether employees performing 
     particular job responsibilities are bona fide executive, 
     administrative or professional personnel.
       (i) Employees Employed in a Bona Fide Executive, 
     Administrative or Professional Capacity.
       Section 13(a) of the FLSA provides an exemption from its 
     minimum wage and overtime provisions for any employee 
     employed in a bona fide executive, administrative or 
     professional capacity as those terms are defined in 
     regulations of the Secretary. 29 CFR Part 541 contains those 
     regulations.
       In addition to the regulations, the Department of Labor has 
     issued interprestations and opinions which have elaborated 
     upon the statutory definitions. The Board recognizes that 
     these regulations, interpretations, and opinions may create 
     uncertainties regarding the scope or application of the 
     exemptions, particularly as they may be applied to the 
     Congress, and it is often difficult to know in advance of 
     litigation whether a particular employee is exempt under 
     these regulations. As a result, employing offices may incur 
     substantial and unanticipated overtime costs absent a major 
     change in employing offices' manner of operation.
       The Board invites comments on whether and to what extent 
     the Board should modify the regulations promulgated by the 
     Secretary regarding exempt executive, administrative and 
     professional employees. Commentors are reminded that any 
     suggested modification of the Secretary's regulations should 
     be supported with an explanation as to how such modification 
     would meet the ``good cause'' standard of the CAA. See 
     Section 1.a, supra.
       (ii) Whether The Board Should Adopt the Interprestive 
     Bulletins as Regulations.
       Various provisions of the FLSA give the Secretary specific 
     regulatory authority; e.g. section 13(a)(1) provides an 
     exemption for executive, administrative and professional 
     employess ``as such terms are defined and delimited from the 
     time to time by regulations of the Secretary . . .'' 
     Regulations pursuant to such specific authorities are 
     codified in 29 CFR Parts 510 to 697.
       With respect to many of the other provisions of the FLSA 
     for which the Secretary does not have specific regulatory 
     authority, ``Statements of General Policy or Interpretation 
     Not Directly related to Regulations'' codified in 29 CFR Part 
     775 to 794 have been issued. Typically, these parts 
     (generally called Interpretative Bulletins) contain language 
     such as the following in section 778.1: ``This Part 778 
     constitutes the official interpretation of the Department of 
     Labor with respect to the meaning and application of the 
     maximum hours and overtime pay requirement contained in 
     section 7 of the Act. It is the purpose of this bulletin to 
     make available in one place the interpretation of these 
     provisions which will guide the Secretary and the 
     Administrator in the performance of their duties under the 
     Act until they are otherwise directed by authoritive 
     decisions of the courts. . .''
       The Board invites comment on the following questions:
       (1) Are the Department of Labor's Interpretive Bulletins 
     ``substantive regulations'' with the meaning of section 
     203(c)(2)?
       (2) If the Interpretive Bulletins are substantive 
     regulations, whether and to what extent the Board should 
     modify them?
       (3) If the Interpretive Bulletins are not substantive 
     regulations, whether and to what extent the Board should 
     adopt them as the Board's regulations or as official 
     interpretations?
       (4) If the Interpretive Bulletins are not substantive 
     regulations, may an employing office nevertheless defend its 
     actions if it has relied upon such an Interpretive Bulletin 
     in light of the provisions of the Portal-to-Portal Act, 29 
     U.S.C. Sec. 251 et seq.?
       (iii) Joint Employer Status.
       In the context of the FLSA, the term ``employer'' has not 
     been construed as limited to a single employer; it may 
     include two or more nominally separate employers of the same 
     employee. Such ``joint employment'' could arise by analogy 
     under the CAA where a covered employee performs work which 
     simultaneously benefits two or more covered employing offices 
     such as a member's personal office and a committee staff or 
     works for two or more covered employing offices at different 
     times during the workweek.
       A determination of whether employment is to be considered 
     joint employment or separate and distinct employment for FLSA 
     purposes depends on all of the facts in a particular case. 
     The Department of Labor's Interpretive Bulletin lists the 
     following factors in determining joint employment status: 
     whether there is an arrangement between the employers to 
     share the employee's services; whether the employee's 
     services are provided to both employers at the same time; 
     whether one employer is acting directly or indirectly in the 
     interest of the other employer in relation to the employee; 
     and whether both employers are commonly controlled. 29 C.F.R. 
     Ch. V, Pt. 791.
       Where an individual works for nominally separate employers 
     that are actually ``joint employers'', all of the employee's 
     hours of work are considered as one employment. In that 
     event, all joint employers are liable, both separately and 
     jointly, for compliance with the applicable provisions of the 
     FLSA, including overtime pay.
       The Board invites comment on whether and to what extent 
     this doctrine is applicable under the CAA.
       The Board further invites comment on whether it should 
     adopt regulations governing joint employment for covered 
     employees and employing offices, and if so, what the content 
     of those regulations should be.

[[Page S 14544]]

       b. Issues Under Section 202 (Family and Medical Leave Act)
       The Family and Medical Leave Act generally requires 
     employers to permit covered employees to take up to 12 weeks 
     of unpaid, job protected leave during a 12-month period for 
     the birth of a child and to care for the newborn; placement 
     of a child for adoption or foster care; care of a spouse; 
     child, or parent with a serious health condition; or an 
     employee's own serious health condition. The FMLA and the 
     Secretary's regulations thereunder contain provisions 
     concerning the maintenance of health benefits during leave, 
     job restoration after leave, notice and medical 
     certifications of the need for FMLA leave, and the 
     relationship of FMLA leave to other employment laws including 
     the Americans With Disabilities Act, Workers Compensation, 
     and Title VII of the Civil Rights Act of 1964.
       (i) Previous Application of the FMLA to Certain Employees.
       The Board notes that Title V of the FMLA made specified 
     rights and protections under the FMLA available to certain 
     employees of the House of Representatives and of the Senate. 
     On August 5, 1993, the House Committee on House 
     Administration of the 103th Congress adopted regulations and 
     forms to implement the FMLA in the House of Representatives.
       Title V and such House regulations provided different FMLA 
     rights and protections to employees of the House of 
     Representatives and of the Senate than are provided under the 
     CAA. For example, under Title V, ``any employee in an 
     employment position'' of the House of Representatives and any 
     employee of the Senate who has been employed for at least 
     twelve months on other than a temporary or intermittent basis 
     was eligible for FMLA leave. Thus, Title V provided FMLA 
     leave to House employees immediately upon employment and to 
     Senate employees who had worked at least twelve months on 
     other than a temporary or intermittent basis.
       Conversely, Section 202(a)(2)(B) of the CAA defines an 
     ``eligible employee'' for the purpose of FMLA leave as any 
     employee who has been employed in any employing office for 12 
     months and for at least 1,250 hours of employment during the 
     12 months immediately preceding the commencement of leave. 
     Consequently, the CAA establishes different leave eligibility 
     requirements than Title V of the FMLA established. The Board 
     further notes that Section 504(b) of the CAA repeals Title V 
     of the FMLA effective January 23, 1996.
       Section 2612 of the FMLA as applied to the House of 
     Representatives and to the Senate under the CAA entitles 
     ``eligible employees'' to take up to 12 weeks of FMLA leave 
     in a 12-month period. Section 825.200(b) of the regulations 
     promulgated by the Secretary provides that the employer may 
     elect to use the calendar year, a fixed twelve month leave or 
     fiscal year, or a 12-month period prior to or after the 
     commencement of leave to calculate the 12-month period within 
     which eligible employees are entitled to take up to 12 weeks 
     leave. The Board notes that the August 5, 1993 regulations of 
     the House Committee on House Administration designated for 
     all employing offices of the House of Representatives the 
     period from January 3 of one year through January 2 of the 
     following year as the FMLA leave year within which eligible 
     employees are entitled to take up to 12 weeks of leave. The 
     Board further notes that, pursuant to sections 504(b) and 506 
     of the CAA, Title V of the FMLA upon which such regulation 
     was based is repealed effective January 23, 1996.
       The Board invites comment on the following questions:
       (1) Whether and, if so, how, the twelve month and 1,250 
     hours of work FMLA leave eligibility requirements should be 
     calculated for employees employed by more than one employing 
     office? See infra (ii) on ``Employment by More Than One 
     Office''.
       (2) Whether there is ``good cause'' to believe that a 
     regulation designating a uniform FMLA leave year within which 
     ``eligible employees'' are entitled to take FMLA leave would 
     be ``more effective'' for the implementation of the rights 
     and protections of the CAA than the regulations promulgated 
     by the Secretary which would permit employers to designate 
     the 12-month period appropriate to their office?
       (3) Whether, assuming that there is not ``good cause'' to 
     designate a uniform FMLA leave year for all employing 
     offices, the existence of non-uniform leave years by 
     employing offices would affect the FMLA leave rights of 
     ``eligible employees'' who are employed by more than one 
     employing office? See infra (ii) on ``Employment by More Than 
     One Office''.
       The Board further seeks information on whether and to what 
     extent policies and practices of the House of 
     Representatives, the Senate, the Instrumentalities or any 
     covered employing office exist that provide different FMLA 
     rights and protections than would be provided under the CAA 
     if the regulations promulgated by the Secretary were made 
     applicable to such employees.
       (ii) Employment by More Than One Office
       In the context of the FMLA, the term ``covered employer'' 
     has not been construed as limited to a single employer; it 
     may include two or more employers of the same employee. 
     Sections 825.106, 825.104(c)(2) and 825.107 of the 
     regulations promulgated by the Secretary set forth factors to 
     be considered in making a determination of whether a ``joint 
     employment'', ``integrated employer'', or ``successor in 
     interest'', respectively, relationship exists for the 
     purposes of FMLA leave eligibility, job restoration and 
     maintenance of health benefits responsibilities of employers.
       The Board invites comment on whether and, if so, how the 
     definitions of ``joint employer'', ``integrated employer'' or 
     ``successor employer'' set forth in the regulations 
     promulgated by the Secretary should be applied and/or 
     modified to implement FMLA rights and protections under the 
     CAA with respect to covered employees employed simultaneously 
     or seriatim by more than one employing office during any 
     relevant 12-month period.
       Signed at Washington, D.C., on this 27th day of September, 
     1995.

                                                Glen D. Nager,

                                               Chair of the Board,
     Office of Compliance.

                          ____________________