[Congressional Record Volume 141, Number 188 (Tuesday, November 28, 1995)]
[Senate]
[Pages S17603-S17664]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

  Mr. THURMOND. Mr. President, pursuant to section 304 of the 
Congressional Accountability Act of 1995 (2 U.S.C. sec. 1384(b)), a 
notice of proposed rulemaking was submitted by the Office of 
Compliance, U.S. Congress. This notice proposes rulemaking on the 
following statutes made applicable by the Congressional Accountability 
Act: the Fair Labor Standards Act, Family Medical Leave Act, Worker 
Adjustment and Retraining Notification Act, and Employee Polygraph 
Protection Act.
  Section 304 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 material was ordered to be printed in 
the Record; as follows:

                        Fair Labor Standards Act


 Proposed Regulations Relating to the Senate and Its Employing Offices

                          OFFICE OF COMPLIANCE

       The Congressional Accountability Act of 1995: Extension of 
     Rights and Protections Under the Fair Labor Standards Act of 
     1938 (Notices of Proposed Rulemaking with respect to Interns 
     and Irregular Work Schedules were issued on October 11. The 
     comment period closed on November 13. Final rules will be 
     issued separately pursuant to Section 304 of the CAA.)

                     Notice of proposed rulemaking

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed rules to implement section 203(c) of 
     the Congressional Accountability Act of 1995 (P.L. 104-1, 
     Stat. 10) (``CAA''). The proposed regulations, which are to 
     be applied to the Senate and employees of the Senate, set 
     forth the recommendations of the Executive Director for the 
     Senate, Office of Compliance, as approved by the Board of 
     Directors, Office of Compliance.
       Dates: Comments are due within 30 days after publication of 
     this Notice in the Congressional Record.
       Addresses: Submit written comments to the Chair of the 
     Board of Directors, Office of Compliance, Room LA 200, 
     Library of Congress, Washington, D.C. 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, D.C., Monday through Friday, between the hours of 
     9:30 a.m. and 4:00 p.m.
       For further information contact: Deputy Executive Director 
     for the Senate, 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) 224-2705.
       Supplementary information:

                             I. Background

                            A. Introduction

       The Congressional Accountability Act of 1995 (``CAA''), PL 
     104-1, was enacted into law on January 23, 1995. In general, 
     the CAA applies the rights and protections of eleven federal 
     labor and employment law statutes to covered employees and 
     employing offices within the legislative branch. Section 
     203(a) of the CAA applies the rights and protections of 
     subsections (a)(1) and (d) of section 6, section 7, and 
     section 12(c) of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 206(a)(1) and (d), 207, 212(c) (``FLSA'') to covered 
     employees and employing offices. Section 203(c) of the CAA (2 
     U.S.C. Section 1313(c)) directs the Board of Directors of the 
     Office of Compliance established under the CAA to issue 
     regulations to implement the section. Section 203(c)(2) (2 
     U.S.C. Section 1313(c)(2)) further states that such 
     regulations, with the exception of certain irregular work 
     schedule regulations to be issued under section 203(a)(3), 
     ``shall be the same as substantive regulations issued by the 
     Secretary of Labor to implement the statutory provisions 
     referred to in subsection (a) 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.''

                B. Advance notice of proposed rulemaking

       On September 28, 1995, the Board of the Office of 
     Compliance issued an Advance Notice of Proposed Rulemaking 
     (``ANPRM'') soliciting comments from interested parties in 
     order to obtain participation and information early in the 
     rulemaking process. 141 Cong. R. S14542 (daily ed., Sept. 28, 
     1995). In addition to inviting comment on specific questions 
     arising under five of the statutes made applicable by the CAA 
     in the ANPRM, the Board and the statutory appointees of the 
     Office sought consultation with the Chair of the 
     Administrative Conference of the United States, the Secretary 
     of Labor and the Director of the Office of Personnel 
     Management with regard to the development of these 
     regulations in accordance with section 304(g) of the CAA. The 
     Office has also consulted with interested parties to further 
     its understanding of the need for and content of appropriate 
     regulations. Based on the information gleaned from these 
     consultations and the comments on the ANPRM, the Board of 
     Directors of the Office of Compliance is publishing these 
     proposed rules, pursuant to Section 203(c)(1) of the CAA (2 
     U.S.C. Section 1313(c)(1)).
     1. Modification of the regulations of the Department of Labor
       In the ANPRM, the Board asked the question, ``Whether and 
     to what extent should the Board modify the Secretary's 
     Regulations?'' The Board received 15 comments on the ANPRM: 
     two from Senators, four from House Members (one from the 
     leadership of the Committee with primary jurisdiction for the 
     CAA and one from three of the sponsors of the CAA), one from 
     the Secretary of the Senate and three from House offices (two 
     from institutional offices and one from a Member's Chief of 
     Staff), four from business coalitions or associations 
     representing an array of private employers, and one from a 
     labor organization.
       Those commenters who expressed views on the ANPRM cited 
     both the statute and the legislative history in taking the 
     position that the CAA presumes that the regulations of the 
     Department of Labor should not be modified. Illustrative 
     comments included the following:
       ``[Section 304 of the CAA] evidences clear legislative 
     intent that the Board apply these rights and protections to 
     Congressional employees in a manner comparable to and 
     consistent with the rights and protections applicable to 
     employees in the private sector under regulations adopted by 
     the Secretary (DOL).  . . . The [CAA] requires that the 
     regulations issued by the Board be the same as those issued 
     by DOL unless the Board determines that modification would 
     more effectively implement the rights and protections of the 
     laws made applicable under the [CAA].''
       ``[I]f a law is right for the private sector, it is right 
     for Congress; . . . Consistent with [this] principle, we 
     would urge the Office not to deviate (except in those few 
     areas where expressly authorized by the CAA) from applying 
     the laws in the same manner in which they are applied to the 
     private sector.

                           *   *   *   *   *

       [W]e have not identified any situations in which 
     modifications [of the DOL regulations] would be 
     appropriate.''
       ``There are no circumstances that justify `good cause' for 
     adopting regulations that deviate from those currently 
     applied to private sector employers.''
       ``[Section 203(c)(2)] confers on the Office of Compliance 
     only very limited authority to deviate from the present DOL 
     regulations. The legislative history to the `good cause' 
     exception likewise makes clear that this authority is to be 
     use by the Office of Compliance sparingly.''

                           *   *   *   *   *

       ``The legislative history of the CAA demands that the 
     Office of Compliance apply to Congress the same regulations 
     as those imposed on the private sector.''
       ``[W]e urge the Board to refrain from modifying regulations 
     promulgated by the Department of Labor and other Executive 
     agencies. Use of established regulations will provide the 
     Board, employees and employing offices with a body of 
     instructive case law and interpretive documents.''
       ``While the Office serves an important implementation and 
     enforcement role, it must not place itself in the position of 
     shielding Congress from substantive requirements imposed on 
     private businesses.''
       Based on the comments and the Board's understanding of the 
     law and the institutions to which it is being made 
     applicable, the Board is issuing the Secretary's regulations 
     with only these limited modifications: Technical changes in 
     the nomenclature and deletion of those sections clearly 
     inapplicable to the legislative branch.
     2. Notice posting and recordkeeping
       The ANPRM also invited comment on whether the recordkeeping 
     and notice posting requirements of the various laws made 
     applicable by the CAA are incorporated as statutory 
     requirements of the CAA. The ANPRM inquired whether, if such 
     requirements were not incorporated, could and should the 
     Board develop its own requirements pursuant to its ``good 
     cause'' authority. The ANPRM also invited comment on 
     proposing guidelines and models for recordkeeping and notice 
     posting.
       Commenters were in agreement that recordkeeping and notice 
     posting are important to the effective implementation of 
     several of the statutes incorporated in the CAA. However, 
     opinions as to whether the Board should require notice 
     posting and recordkeeping were widely divergent. Several 
     commenters expressed the view that the Board lacks the 
     statutory authority to adopt notice posting and recordkeeping 
     requirements 

[[Page S 17604]]
     and that the notice posting and recordkeeping requirements of the FLSA 
     do not apply to Congress. Other commenters expressed the view 
     that the Board has the authority to issue regulations to 
     impose recordkeeping and notice posting requirements and that 
     such regulations should be, in substance, the same as those 
     with which the private sector must comply.
       The Board agrees with those commenters who took the 
     position that, if employing offices are to be treated the 
     same as private sector employers are treated under FLSA, they 
     should have to comply with the statute's notice posting and 
     recordkeeping requirements. Moreover, the Board notes that 
     notice posting and recordkeeping promote the full and 
     effective enforcement of these incorporated rights and 
     protections. In the Board's view, notice posting and 
     recordkeeping may well be in employers' interests both as a 
     sound personnel practice and in order to defend against 
     subsequent litigation.
       But while the CAA incorporates certain specific sections of 
     the FLSA, the CAA explicitly did not incorporate the notice 
     posting and recordkeeping requirements of Section 11, 29 
     U.S.C. Sec. 211 of the FLSA. Because the Board's authority to 
     modify the Secretary's regulations for ``good cause'' does 
     not authorize it to adopt regulatory requirements that are 
     the equivalent of statutory requirements that Congress has 
     omitted from the CAA, the Board has determined that it may 
     not impose such requirements on employing offices. However, 
     as various commenters suggest, the Board will provide 
     guidance to employing offices concerning model recordkeeping 
     practices as part of carrying out its program of education 
     under section 301(h) of the CAA (2 U.S.C. 1381(h)).
       The Board would also note that based upon their collective 
     years of experience representing employers and employees with 
     regard to various labor and employment laws, including the 
     FLSA, the absence of recordkeeping and notice posting 
     requirements may create a void which can only partially be 
     filled by the program of education to be carried out by the 
     Board pursuant to Section 301(h)(1) and the optional notice 
     which will be distributed by the Board pursuant to Section 
     301(h)(2). The Board also would emphasize that employees will 
     in many circumstances be able to establish a prima facie case 
     simply by their own testimony estimating the hours worked by 
     the employees where the employing office has failed to 
     maintain adequate, accurate records. An employing office may 
     find that its ability to respond to an employee's prima facie 
     case is substantially burdened by its failure to keep 
     accurate payroll and time-records. If Congress wishes to 
     experience the same burdens as faced by the private sector 
     and also to address these issues, it should enact 
     recordkeeping requirements comparable to those of the FLSA. 
     (Of course, like the regulations under those statutes, such 
     recordkeeping requirements may leave to the discretion of 
     each employing office the precise form and manner in which 
     records will be kept.) But, in light of the text and 
     structure of the CAA, the Board believes that it is up to 
     Congress to decide whether to do so.

                      II. The proposed regulations

                             A. Background

       Congress committed enforcement of the Fair Labor Standards 
     Act of 1938 to the Department of Labor and its Wage and Hour 
     Division, whose regulations and interpretations of that Act 
     comprise almost one thousand pages of Chapter V, Title 29 of 
     the Code of Federal Regulations. In enacting the CAA, 
     however, Congress expressly refused to commit enforcement to 
     the executive branch of the Federal government nor did 
     Congress bring its employing offices under the FLSA itself. 
     Instead, Congress carefully specified, through sectional 
     references to the FLSA, the substantive rights and 
     protections afforded to legislative employees, and precisely 
     mandated procedures by which those rights and protections 
     would be largely enforced by a new and independent office in 
     the legislative branch, the Office of Compliance. Further, in 
     granting the Board rulemaking authority with respect to the 
     FLSA in Section 203(c)(1) of the CAA, Congress affirmatively 
     commanded the Board to issue substantive regulations, with 
     the important directive that they ``shall be the same as 
     substantive regulations promulgated by the Secretary of Labor 
     * * * except as the Board may determine, for good cause shown 
     * * * that a modification of such regulations would be more 
     effective for the implementation of rights and protections 
     under'' the CAA.
       In the Board's view, and notwithstanding what has been 
     urged by some of the commenters, this unusual statutory 
     framework neither mandates nor allows an uncritical, 
     wholesale incorporation of all the regulations and 
     interpretive statements issued by the Labor Department under 
     the FLSA. Rather, this statutory framework requires the Board 
     to cull from the vast body of FLSA material found in the Code 
     of Regulations only those items that constitute ``substantive 
     regulations'' as the term is understood under settled 
     principles of administrative law. (See Batterton v. Francis, 
     422 U.S. 416, 425, n. 9 (1977)). Moreover, the statutory 
     framework authorizes the Board to delete those substantive 
     regulations that either have no application in the employing 
     offices of the Congress or that are not likely to be invoked. 
     For these reasons, the Board is not proposing their adoption, 
     unless public comments establish a justification to the 
     contrary. Finally, by limiting itself to substantive 
     regulations, the Board is not adopting those portions of 29 
     C.F.R. chapter V that constitute the interpretative bulletins 
     or statements of the Department of Labor and its Wage and 
     Hour Division.

                        B. Proposed regulations

     1. General provisions
       The proposed regulations include an initial Part 501 which 
     contains matters of general applicability including the 
     purpose and scope of the regulations, definitions, coverage, 
     and the administrative authority of the Board and the Office 
     of Compliance. In addition, a section explains the effect of 
     interpretative bulletins and statements of the Department of 
     Labor, and another section provides for the application of 
     the Portal to Portal Act. These latter sections are discussed 
     below.
       It is noted that the definition section incorporates the 
     general provisions of section 101 of the CAA which defines 
     ``employee,'' ``covered employee,'' ``employing office,'' and 
     ``employee of the House of Representatives.'' Section 203 of 
     the CAA, which applies the rights and protections of the 
     FLSA, also contemplates the promulgation of a definitional 
     regulation that excludes ``interns'' from the meaning of 
     ``covered employee.'' The Board in a separate NPRM issued on 
     October 11, 1995, proposed such a regulation, together with a 
     regulation governing irregular work schedules and the receipt 
     of compensatory time in lieu of overtime compensation. The 
     Board is reviewing the public comments received in response 
     to that NPRM and will issue a separate final rule on those 
     issues.
       It should be noted that section 225(f)(1) of the CAA 
     provides that, except where inconsistent with definitions of 
     the CAA itself, the definitions in the laws made applicable 
     by the CAA shall also apply under the CAA. Thus, attention 
     must be paid to those definitions found in the FLSA that are 
     consistent with the CAA even if they are not expressly 
     incorporated in the proposed regulations. In this regard, one 
     commenter expressed concern over whether employing offices 
     would be obligated to pay minimum wages and overtime 
     compensation to individuals who do volunteer work, in light 
     of the fact that under the FLSA ``employee'' may include 
     certain volunteers. See 29 U.S.C. Sec. 203(e)(4)(A), which 
     excludes from the definition of ``employee'' only certain 
     volunteers who perform work for a State, political 
     subdivision, or interstate governmental agency. Similarly, it 
     is noted that, in enacting the CAA, Congress did make 
     separate provision for excluding interns. Thus, the Board has 
     concluded that, to the extent that volunteer activity would 
     bring an individual under the coverage of the FLSA, similarly 
     situated individuals would be treated in the same manner 
     under the CAA.
     2. Provisions derived from regulations of the Department of 
         Labor
       Those regulations of the Department of Labor that are being 
     adopted in substance include:
       Part 531, which governs the manner in which an employee's 
     wages are calculated taking into account the reasonable cost 
     to an employer of furnishing board, lodging, or other 
     facilities. This Part is derived from Section 3(m) of the 
     FLSA, which directs how the ``wage'' paid to an employee is 
     determined. Section 3(m) must be treated as applicable under 
     the CAA by virtue of Section 225(f)(1), which authorizes 
     generally the inclusion of those definitions and exemptions 
     that are consistent with definitions and exemptions of the 
     CAA. However, it is noted that section 3(m) is inconsistent 
     with the CAA insofar as the implementing regulations in Part 
     531, Title 29, C.F.R., provide procedures by which the Wage 
     and Hour Administrator makes determinations in specific cases 
     with respect to the furnishing of board, lodging, or other 
     facilities. Because the Administrator has no role in the 
     enforcement of the CAA by reason of Section 225(f)(3), and 
     because the Board is not at this time is not authorizing the 
     Office of Compliance to make such specific determinations, 
     the Board proposes to delete the provisions setting forth 
     those procedures. Similarly, the reference to ``tipped 
     employees'' and the method by which their wages are 
     determined are deleted because the applicable sections assign 
     responsibility to the Administrator.
       Part 541, which defines and delimits the bona fide 
     executive, administrative, and professional employees who are 
     exempt under Section 13(a) of the FLSA from the minimum 
     wage and maximum hours requirements. The Board has 
     determined that this exemption, commonly known as the 
     ``white collar'' exemption, is applicable to employing 
     offices of Congress by virtue of Section 225(f)(1) of the 
     CAA.
       In the ANPRM, the Board solicited public comment on whether 
     and to what extent it should modify the Labor Department's 
     regulations regarding this exemption. Generally, the 
     commenters did not question the applicability of this 
     exemption to covered employees under the CAA, and several 
     commenters urged the adoption of all of the Department's 
     regulations in Part 541, 29 C.F.R., including the 
     interpretative bulletins, without any modification. Two 
     commenters contended that the Board's regulations should 
     grant a sweeping exemption for nearly all staff employees 
     working in elected members' offices because they exercise 
     independent judgment and discretion in performing their 
     responsibilities.

[[Page S 17605]]

       Other commenters urged the Board to modify the Labor 
     Department regulations to take into account the unique job 
     responsibilities of staff working for an elected member 
     either in a personal office, in a leadership office or on 
     committee. Recognizing that job titles alone cannot be 
     dispositive of who is an exempt employee, these commenters 
     urged the Board to identify with particularity those job 
     duties which, if performed by an employee, would render him 
     or her an exempt executive, administrative, or professional 
     employee.
       The Board is proposing to adopt the Labor Department's 
     substantive regulations contained in Subpart A of Part 541 of 
     29 C.F.R. that set forth the fundamental criteria for 
     satisfying each of the three exemptions. But, for the reasons 
     explained below, the Board is not formally adopting the 
     interpretative bulletins contained in Subpart B of Part 541 
     of 29 C.F.R., which discuss and illustrate through examples 
     the Department's understanding of the exemption criteria.
       With respect to some commenters' request that the Board 
     modify the white collar exemptions, upon reflection, the 
     Board has reluctantly concluded that such a modification 
     would not satisfy the ``good cause'' requirement of Section 
     203(c)(2) of the CAA. The Board recognizes that the 
     Secretary's regulations and interpretations were promulgated 
     in a different era, with different employment paradigms in 
     mind. Thus, the Board appreciates the many difficulties that 
     employing offices will have in interpreting and reconciling 
     these regulations to present day realities. Moreover, the 
     Board is mindful of the significant impact the application of 
     the administrative, executive and professional exemption will 
     have on the structuring, functioning and expense of the 
     Members' and Senators' personal offices and committee 
     offices. However, the Board notes that private sector and 
     state and local government employers face the same 
     difficulties. And the Board has not found any sound, 
     principled basis for modifying the exemption regulation for 
     Congress and its instrumentalities. That resolved, the Board 
     nonetheless wishes to make clear its intent to provide, as 
     time and resources permit, appropriate general guidance to 
     the Congress and its instrumentalities on how to identify and 
     justify which employees are exempt. Such efforts made through 
     the Office's education and information programs, will attempt 
     to assist employing offices in determining which job duties 
     will be considered exempt under the executive, administration 
     or professional criteria.
       Part 547, which defines, pursuant to Section 7(e)(3)(b) the 
     standard that bona fide thrift or savings plans must meet in 
     order not to be included within an employee's regular rate of 
     pay for purposes of calculating overtime obligations under 
     Section 7 of the FLSA. This is included in light of Section 
     203(a)1) of the CAA, which specifically applied the rights 
     and protections of Section 7 of the FLSA.
       Part 570, which sets forth the limitations on the use of 
     child labor. This Part implements Section 12(c) of the FLSA, 
     prohibiting oppressive child labor, as defined by Section 
     3(l) of the same Act. The former section is specifically 
     referenced in Section 203(a)(1) of the CAA, while the latter 
     must be referenced by reason of Section 225(f)(1) of the CAA. 
     The inclusion of this Part in the separate regulations of the 
     Senate is necessitated by the fact that the Senate allows for 
     the appointment of congressional pages below the age of 16, 
     unlike the House of Representatives, which by law sets a 
     minimum age of 16 for such employees. For children under age 
     16, the FLSA regulations impose limitations on hours worked 
     during the school year. Part 570 is also included in the 
     separate regulations applicable to all other covered 
     employees and employing offices. Given the hazardous nature 
     of some of the activities of the support functions, such as 
     maintenance and repair, Part 570 regulations are being 
     proposed in the event that such instrumentalities employ 
     children under 18 years of age. It is noted that the Board 
     has not adopted regulations comparable to those set forth in 
     the Labor Department's Subpart B (29 C.F.R. Sections 570.5-
     .27), authorizing the issuance of certificates of age. In 
     addition, with respect to Section 570.52, governing the 
     hazardous occupation of motor-vehicle driver and outside 
     helper, the Board is not adopting the special exemption for 
     school bus driving because by its terms no employing offices 
     would satisfy the criteria of the regulation.

  C. Secretary of Labor's regulations that the Board proposes not to 
                                 adopt

       In reviewing the remaining parts of the Labor Department's 
     regulations, it is readily apparent that some have no 
     application to the employing offices within the legislative 
     branch. For this reason, the Board is not including them 
     within its substantive regulations. Among the excluded 
     regulations are: Part 510, which pertains to the application 
     of the minimum wage provisions to Puerto Rico; Part 511, 
     establishing a wage order procedure for American Samoa; Part 
     515, authorizing the utilization of State government agencies 
     for investigations and inspections; Part 530, governing the 
     employment of industrial homeworkers in certain industries; 
     Part 549, defining the requirements of a ``bona fide profit-
     sharing plan or trust;'' Part 550, defining the term ``talent 
     fees;'' Part 552, regulating the application of the FLSA to 
     domestic service; Part 575, addressing child labor in certain 
     agricultural employment; Parts 578, 579, and 580, 
     implementing the civil money penalties provisions of the 
     FLSA; and Part 679, dealing with industries in American 
     Samoa. Unless public comments suggest otherwise, the Board 
     intends including in the adopted regulations a provision 
     stating that the Board has issued regulations on all matters 
     for which the CAA requires a regulation. See Section 411 of 
     the CAA.
       Other substantive regulations could have application in the 
     event that an employing office wished to avail itself of 
     certain special wage rates, subminimum wage exemptions or 
     overtime exemptions under the FLSA. These are found in: Parts 
     519-528, which authorize subminimum wages for full-time 
     students, student-learners, apprentices, learners, 
     messengers, workers with disabilities, and student workers; 
     Part 548, which authorizes in the collective bargaining 
     context the establishment of basic wage rates for overtime 
     compensation purposes; and Part 551, which implements an 
     overtime exemption for local delivery drivers and helpers. 
     Unless public comments provide a sufficient justification to 
     the contrary the Board is not proposing the adoption of 
     regulations covering the foregoing subjects.

      III. The Interpretive Bulletins and Other Relevant Guidance

       In addition to the substantive regulations found in 
     Subchapter A, the Department of Labor has issued, under 
     Subchapter B, ``Statements of General Policy or 
     Interpretations Not Directly Related to Regulations.'' 29 
     C.F.R Parts 775-794. Usually called Interpretive Bulletins, 
     these statements make available in one place the official 
     interpretations which guide the Secretary of Labor and the 
     Wage and Hour Administrator in the performance of their 
     duties. As the interpretations of an administering agency, 
     such statements are usually given some deference by the 
     courts. As the Supreme Court has observed: ``the rulings, 
     interpretations and opinions of the Administrator under this 
     Act, while not controlling upon the courts by reason of their 
     authority, do constitute a body of experience and informed 
     judgment to which courts and litigants may properly resort 
     for guidance. The weight of such a judgment in a particular 
     case will depend upon the thoroughness evident in the 
     consideration, the validity of its reasoning its consistency 
     with earlier and later pronouncements, and all those factors 
     which give it power to persuade, if lacking power to 
     control.'' Skidmore v. Swift, 323 U.S. 134, 140 (1944).
       However, unlike ``substantive regulations,'' these 
     interpretations are not issued by the agency pursuant to its 
     statutory authority to implement the statute and, more 
     significantly, do not have the force and effect of law. See 
     Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). The 
     Board's mandate is only to issue substantive regulations that 
     are ``the same as the substantive regulations of the 
     Secretary of Labor to implement the statutory provision [of 
     the FLSA] applied'' by Section 204(a) of the CAA unless 
     modified for good cause (CAA Section 203 (c)(2)). Therefore, 
     the Board, does not propose to adopt the non-substantive 
     interpretations of the DOL and its Wage and Hour Division as 
     substantive regulations under the CAA. Moreover, the Board is 
     not proposing to issue the Department's interpretations as 
     its own interpretations of the FLSA rights and protections 
     made applicable under the CAA at this time. However, as 
     discussed below, employing offices should be advised that, 
     pursuant to the Portal to Portal Act, the Board will give due 
     consideration to the Secretary's interpretations of the FLSA.
       Application of the Portal to Portal Act.--The Portal to 
     Portal Act, 61 Stat. 84 (1947), codified generally at 29 
     U.S.C. Sections 216 and 251, et seq. (``PPA''), contains 
     provisions which affect the rights and liabilities of 
     employees and employers with regard to alleged underpayment 
     of minimum or overtime wages under the FLSA. Section 4 of the 
     PPA excludes from the definition of hours worked both 
     activities preliminary to or postliminary to the worker's 
     principal activities and travel time absent a contract, 
     custom or practice to the contrary. 29 U.S.C. Section 254. 
     Sections 9 and 10 of the PPA provide the employer with a 
     defense against liability or punishment in any action or 
     proceeding brought against it for failure to comply with the 
     minimum wage and overtime provisions of the FLSA, where the 
     employer pleads and proves that the act or omission 
     complained of was in good faith in conformity with and in 
     reliance on any regulation, order, ruling, approval, 
     interpretation, administrative practice or enforcement 
     policy of the Wage and Hour Administrator of the 
     Department of Labor. 29 U.S.C. Sections 258-259. The PPA 
     also contains provisions which restrict and limit employee 
     suits under section 16(b) of the FLSA. For example, 
     section 11 of the PPA provides that in any action brought 
     under section 216 of the FLSA, the court may in its 
     discretion, subject to prescribed conditions, award no 
     liquidated damages or award any amount of such damages not 
     to exceed the amount specified in section 16(b) of the 
     FLSA. 29 U.S.C. Section 260.
       The Board has determined that the above provisions of the 
     PPA are incorporated into section 203 of the CAA, either as 
     an amendment to section 16(b) of the FLSA (which is expressly 
     applied to the legislative branch under section 203(b) of the 
     CAA), or by virtue of section 225(f) of the CAA, which 
     applies the definitions and exemptions of the FLSA to the 
     extent not inconsistent with the CAA. To that end, the Board 
     will give due consideration to the interpretations of the 
     FLSA of 

[[Page S 17606]]
     the Secretary of Labor. Moreover, employing offices may utilize these 
     interpretations in attempting to understand the rights and 
     protections under the FLSA that have been made applicable by 
     the CAA. Unless and until the Secretary's interpretive 
     statements are superseded or interpretative guidance or 
     decisions to the contrary are issued by the Board or the 
     courts, they may be relied upon for purposes of defending 
     against claims brought under the CAA to the same extent as 
     private sector employers may properly rely upon them in 
     actions brought under the FLSA.
       Joint Employer Doctrine.--The Board solicited comments in 
     the ANPRM on whether and to what extent the joint employment 
     doctrine as developed under the FLSA is applicable under the 
     CAA. The comments generally advocated adoption of the 
     doctrine to employing offices of the Congress. However, since 
     the issue of joint employment is addressed through a DOL 
     interpretive bulletin set forth in Part 791, 29 C.F.R., 
     rather than a substantive regulation, the Board is not 
     adopting it as such nor issuing it as its own interpretive 
     statement. See discussion at Section III.
       Equal Pay Act.--With respect to the Equal Pay Act (EPA), 
     which is included in Section 6(d) of the FLSA, 29 U.S.C. 
     Section 206(d), the Secretary of Labor promulgated 
     interpretative regulations that were originally included in 
     29 C.F.R. Part 800. Pursuant to the provisions of 
     Reorganization Plan No. 1 of 1978, as confirmed by the 
     Congress in Public Law 98-532, 98 Stat. 2705 (1984), 
     enforcement and administration of the EPA was transferred 
     from the Secretary of Labor to the Equal Employment 
     Opportunity Commission (EEOC). The EEOC promulgated its own 
     interpretations implementing the EPA at 29 C.F.R. Part 1620. 
     Thereafter, the Secretary deleted its interpretations. 52 FR 
     2517 (Jan. 23, 1987). Thus, there are no substantive 
     regulations implementing the EPA. Under the rationale 
     previously stated regarding the Portal to Portal Act, the 
     Board declines to incorporate the EEOC interpretations as 
     substantive regulations under the CAA but will recognize them 
     as is appropriate.
       Opinion letters.--Commenters asked that the Board consider 
     establishing a process under which the Office or the Board 
     would issue opinion letters and upon which employing offices 
     could rely, similar to the procedure followed by the Wage and 
     Hour Administrator in sometimes providing such opinions at 
     the request of private sector employers. The Board 
     understands employing offices' desire for guidance and 
     clarity regarding their obligations under the CAA.
       To the extent that the Board itself can address issues 
     through regulations or interpretations, it will do so. 
     Moreover, the Office intends to provide appropriate education 
     and technical assistance as part of its education and 
     information responsibilities. But for the reasons stated 
     here, the Board and the Office's ability to do so is limited 
     by legal, resource and policy considerations. As is the case 
     in the private sector context, many issues under these 
     statutes can only be definitively resolved through case-by-
     case adjudication on particular facts. Moreover, except in 
     the context of statutes subject to the Portal to Portal Act, 
     it is doubtful that the Board or the Office has the statutory 
     authority to issue guidance with legal effect (outside of the 
     adjudicatory or rulemaking contexts); we are not aware of any 
     such legal authorization for Executive Branch agencies to do 
     so in the context of applying these same laws to the private 
     sector. Further, the resources of the Board and the Office 
     are limited: the first year appropriation is for $2.5 
     million. These resources are substantially less than those 
     available to analogous Executive Branch agencies that 
     administer fewer laws. Finally, public comment has not 
     provided the Board with the facts necessary for yet making 
     any of these determinations--and a detailed evidentiary 
     record is necessary for such judgment to be made. In short, 
     particularly in light of the various statutory 
     responsibilities of the Office and the Board, it is not 
     possible to give answers with legal effect to each individual 
     request for information and guidance. While the Board will 
     structure education and information programs to assist 
     employees and employing offices, it is forced to respond 
     that, like private employers, employing offices will 
     generally have to rely on their own counsel and human 
     resource advisors in determining their compliance with the 
     Congressional Accountability Act.

                         IV. Method of Approval

       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolution; and (3) the version of the proposed 
     regulations that shall apply to other covered employees and 
     employing offices be approved by the Congress by concurrent 
     resolution.
       Signed at Washington, D.C., on this 21st day of November, 
     1995.

                                                Glen D. Nager,

                                               Chair of the Board,
                                             Office of Compliance.

   Subtitle A--Regulations Relating to the Senate and Its Employing 
                           Offices--S Series

 Chapter III--Regulations Relating to the Rights and Protections Under 
                  the Fair Labor Standards Act of 1938


                     part h501--general provisions

Sec.
S501.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S501.101 Purpose and scope.
S501.102 Definitions.
S501.103 Coverage.
S501.104 Administrative authority.
S501.105 Effect of Interpretations of the Labor Department.
S501.106 Application of the Portal-to-Portal Act of 1947.

     Sec. S501.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the parts of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding parts of 
     the Office of Compliance (CO) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       Part 531: Wage payments under the Fair Labor Standards Act 
     of 1938--Part S531.
       Part 541: Defining and delimiting the terms ``bona fide 
     executive,'' ``administrative,'' and ``professional'' 
     employees--Part S541.
       Part 547: Requirements of a ``Bona fide thrift or savings 
     plan''--Part S547.
       Part 570: Child labor--Part S570.


              subpart a--matters of general applicability

     Sec. S501.101 Purpose and scope.

       (a) Section 203 of the Congressional Accountability Act 
     (CAA) provides that the rights and protections of subsections 
     (a)(1) and (d) of section 6, section 7, and section 12(c) of 
     the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. 
     Sec. Sec. 206(a)(1) and (d), 207, 212(c)) shall apply to 
     covered employees of the legislative branch of the Federal 
     government. Section 301 of the CAA creates the Office of 
     Compliance as an independent office in the legislative branch 
     for enforcing the rights and protections of the FLSA, as 
     applied by the CAA.
       (b) The FLSA as applied by the CAA provides for minimum 
     standards for both wages and overtime entitlements, and 
     delineates administrative procedures by which covered 
     worktime must be compensated. Included also in the FLSA are 
     provisions related to child labor, equal pay, and portal-to-
     portal activities. In addition, the FLSA exempts specified 
     employees or groups of employees from the application of 
     certain of its provisions.
       (c) This chapter contains the substantive regulations with 
     respect to the FLSA that the Board of Directors of the Office 
     of Compliance has adopted pursuant to Sections 203(c) and 304 
     of the CAA, which require that the Board promulgate 
     regulations that are ``the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     Sec. 203 of the CAA] except insofar as the Board may 
     determine, for good cause shown . . . that a modification of 
     such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section.''

     Sec. S501.102 Definitions.

       For purposes of this chapter:
       (a) CAA means the Congressional Accountability Act of 1995 
     (P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
       (b) FLSA or Act means the Fair Labor Standards Act of 1938, 
     as amended (29 U.S.C. Sec. 201 et seq.).
       (c) Covered employee means any employee of the Senate, 
     including an applicant for employment and a former employee.
       (d) Employee of the Senate includes any employee whose pay 
     is disbursed by the Secretary of the Senate, but not any such 
     individual employed by (1) the Capitol Guide Service; (2) the 
     Capitol Police; (3) the Congressional Budget Office; (4) the 
     Office of the Architect of the Capitol; (5) the Office of the 
     Attending Physician; (6) the Office of Compliance; or (7) the 
     Office of Technology Assessment.
       (e) Employing office and employer mean (1) the personal 
     office of a Senator; (2) a committee of the Senate or a joint 
     committee; or (3) any other office headed by a person with 
     the final authority to appoint, hire, discharge, and set the 
     terms, conditions, or privileges of the employment of an 
     employee of the Senate.
       (f) Board means the Board of Directors of the Office of 
     Compliance.
       (g) Office means the Office of Compliance.

     Sec. S501.103 Coverage.

       The coverage of Section 203 of the CAA extends to any 
     covered employee of an employing office without regard to 
     whether the covered employee is engaged in commerce or the 
     production of goods for interstate commerce and without 
     regard to size, number of employees, amount of business 
     transacted, or other measure.

     Sec. S501.104 Administrative authority.

       (a) The Office of Compliance is authorized to administer 
     the provisions of Section 203 of the Act with respect to any 
     covered employee or covered employer.
       (b) The Board is authorized to promulgate substantive 
     regulations in accordance with the provisions of Sections 
     203(c) and 304 of the CAA.

[[Page S 17607]]

       (c) The Board may in its discretion from time to time issue 
     interpretative statements providing guidance to employees and 
     to employing offices on the rights and protections 
     established under the FLSA that are made applicable by 
     Sections 203(a) and 225 of the CAA.

     Sec. S501.105 Effect of Interpretations of the Department of 
       Labor.

       (a) In administering the FLSA, the Wage and Hour Division 
     of the Department of Labor has issued not only substantive 
     regulations but also interpretative bulletins. Substantive 
     regulations represent an exercise of statutorily-delegated 
     lawmaking authority from the legislative branch to an 
     administrative agency. Generally, they are proposed in 
     accordance with the notice-and-comment procedures of the 
     Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. Once 
     promulgated, such regulations are considered to have the 
     force and effect of law, unless set aside upon judicial 
     review as arbitrary, capricious, an abuse of discretion, or 
     otherwise not in accordance with law. See Batterton v. 
     Francis, 432 U.S. 416, 425 n.9 (1977). See also 29 C.F.R. 
     Sec. 790.17(b) (1994). Unlike substantive regulations, 
     interpretative statements, including bulletins and other 
     releases of the Wage and Hour Division, are not issued 
     pursuant to the provisions of the APA and may not have the 
     force and effect of law. Rather, they may only constitute 
     official interpretations of the Department of Labor with 
     respect to the meaning and application of the minimum wage, 
     maximum hour, and overtime pay requirements of the FLSA. See 
     29 C.F.R. Sec. 790.17(c) (citing Final Report of the Attorney 
     General's Committee on Administrative Procedure, Senate 
     Document No.8, 77th Cong., 1st Sess., at p. 27 (1941)). The 
     purpose of such statements is to make available in one place 
     the interpretations of the FLSA which will guide the 
     Secretary of Labor and the Wage and Hour Administrator in the 
     performance of their duties unless and until they are 
     otherwise directed by authoritative decisions of the courts 
     or conclude, upon reexamination of an interpretation, that it 
     is incorrect. The Supreme Court has observed: ``[T]he 
     rulings, interpretations and opinions of the Administrator 
     under this Act, while not controlling upon the courts by 
     reason of their authority, do constitute a body of experience 
     and informed judgment to which courts and litigants may 
     properly resort for guidance. The weight of such a judgment 
     in a particular case will depend upon the thoroughness 
     evident in the consideration, the validity of its reasoning, 
     its consistency with earlier and later pronouncements, and 
     all those factors which give it power to persuade, if lacking 
     power to control.'' Skidmore v. Swift, 323 U.S. 134, 140 
     (1944).
       (b) Section 203(c) of the CAA provides that the substantive 
     regulations implementing Section 203 of the CAA shall be 
     ``the same as substantive regulations promulgated by the 
     Secretary of Labor'' except where the Board finds, for good 
     cause shown, that a modification would more effectively 
     implement the rights and protections established by the FLSA. 
     Thus, the CAA by its terms does not mandate that the Board 
     adopt the interpretative statements of the Department of 
     Labor or its Wage and Hour Division. The Board is thus not 
     adopting such statements as part of its substantive 
     regulations.

     Sec. S501.106 Application of the Portal-to-Portal Act of 
       1947.

       (a) Consistent with Section 225 of the CAA, the Portal to 
     Portal Act (PPA), 29 U.S.C. Sec. Sec. 216 and 251 et seq., is 
     applicable in defining and delimiting the rights and 
     protections of the FLSA that are prescribed by the CAA. 
     Section 10 of the PPA, 29 U.S.C. Sec. 259, provides in 
     pertinent part: [N]o 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, * * * 
     if he pleads and proves that the act or omission complained 
     of was in good faith in conformity with and reliance on any 
     written administrative regulation, order, ruling, approval or 
     interpretation of [the Administrator of the Wage and Hour 
     Division of the Department of Labor] * * * 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) In defending any action or proceeding based on any act 
     or omission arising out of section 203 of the CAA, an 
     employing office may satisfy the standards set forth in 
     subsection (a) by pleading and proving good faith reliance 
     upon:
       (1) Any written administrative regulation, order, decision, 
     ruling, approval or interpretation, or any administrative 
     practice or enforcement policy, of the Board.
       (2) Any written administrative regulation, order, ruling, 
     approval or interpretation, of the Administrator of the Wage 
     and Hour Division of the Department of Labor: Provided, that 
     such regulation, order, ruling approval or interpretation had 
     not been superseded at the time of reliance by any 
     regulation, order, decision, ruling, approval or 
     interpretation, or any administrative practice or enforcement 
     policy, of the Board or the courts.


  PART S531--WAGE PAYMENTS UNDER THE FAIR LABOR STANDARDS ACT OF 1938

                     Subpart A--Preliminary Matters

Sec.
S531.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S531.1 Definitions.
S531.2 Purpose and scope.


Subpart B--Determinations of ``Reasonable Cost''; Effects of Collective 
                         Bargaining Agreements

S531.3 General determinations of ``reasonable cost''.
S531.6 Effects of collective bargaining agreements.


                     Subpart A--Preliminary Matters

     Sec. S531.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       531.1 Definitions.--S531.1.
       531.2 Purpose and scope.--S531.2.
       531.3 General determinations of ``reasonable cost''.--
     S531.3.
       531.6 Effects of collective bargaining agreements.--S531.6.

     Sec. S531.1 Definitions.

       (a) Administrator means the Administrator of the Wage and 
     Hour Division or his authorized representative. The Secretary 
     of Labor has delegated to the Administrator the functions 
     vested in him under section 3(m) of the Act.
       (b) Act means the Fair Labor Standards Act of 1938, as 
     amended.

     Sec. S531.2 Purpose and scope.

       (a) Section 3(m) of the Act defines the term ``wage'' to 
     include the ``reasonable cost', as determined by the 
     Secretary of Labor, to an employer of furnishing any employee 
     with board, lodging, or other facilities, if such board, 
     lodging, or other facilities are customarily furnished by the 
     employer to his employees. In addition, section 3(m) gives 
     the Secretary authority to determine the ``fair value'' of 
     such facilities on the basis of average cost to the employer 
     or to groups of employers similarly situated, on average 
     value to groups of employees, or other appropriate measures 
     of ``fair value'' Whenever so determined and when applicable 
     and pertinent, the ``fair value'' of the facilities involved 
     shall be includable as part of ``wages'' instead of the 
     actual measure of the costs of those facilities. The section 
     provides, however, that the cost of board, lodging, or other 
     facilities shall not be included as part of ``wages'' if 
     excluded therefrom by a bona fide collective bargaining 
     agreement. Section 3(m) also provides a method for 
     determining the wage of a tipped employee.
       (b) This part 531 contains any determinations made as to 
     the ``reasonable cost'' and ``fair value'' of board, lodging, 
     or other facilities having general application.


 Subpart B--Determinations of ``Reasonable Cost'' and ``Fair Value''; 
              Effects of Collective Bargaining Agreements

     Sec. S531.3 General determinations of ``reasonable cost.''

       (a) The term reasonable cost as used in section 3(m) of the 
     Act is hereby determined to be not more than the actual cost 
     to the employer of the board, lodging, or other facilities 
     customarily furnished by him to his employees.
       (b) Reasonable cost does not include a profit to the 
     employer or to any affiliated person.
       (c) The reasonable cost to the employer of furnishing the 
     employee with board, lodging, or other facilities (including 
     housing) is the cost of operation and maintenance including 
     adequate depreciation plus a reasonable allowance (not more 
     than 5\1/2\ percent) for interest on the depreciated amount 
     of capital invested by the employer: Provided, That if the 
     total so computed is more than the fair rental value (or the 
     fair price of the commodities or facilities offered for 
     sale), the fair rental value (or the fair price of the 
     commodities or facilities offered for sale) shall be the 
     reasonable cost. The cost of operation and maintenance, the 
     rate of depreciation, and the depreciated amount of capital 
     invested by the employer shall be those arrived at under good 
     accounting practices. As used in this paragraph, the term 
     good accounting practices does not include accounting 
     practices which have been rejected by the Internal Revenue 
     Service for tax purposes, and the term depreciation includes 
     obsolescence.
       (d)(1) The cost of furnishing ``facilities'' found by the 
     Administrator to be primarily for the benefit or convenience 
     of the employer will not be recognized as reasonable and may 
     not therefore be included in computing wages.
       (2) The following is a list of facilities found by the 
     Administrator to be primarily for the benefit of convenience 
     of the employer. The list is intended to be illustrative 
     rather than exclusive: (i) Tools of the trade and other 
     materials and services incidental to carrying on the 
     employer's business; (ii) the cost of any construction by and 
     for the employer; 

[[Page S 17608]]
     (iii) the cost of uniforms and of their laundering, where the nature of 
     the business requires the employee to wear a uniform.

     Sec. S531.6 Effects of collective bargaining agreements.

       (a) The cost of board, lodging, or other facilities shall 
     not be included as part of the wage paid to any employee to 
     the extent it is excluded therefrom under the terms of a bona 
     fide collective bargaining agreement applicable to the 
     particular employee.
       (b) A collective bargaining agreement shall be deemed to be 
     ``bona fide'' when pursuant to the provisions of section 
     7(b)(1) or 7(b)(2) of the FLSA it is made with the certified 
     representative of the employees under the provisions of the 
     CAA.


 PART S541--DEFINING AND DELIMITING THE TERMS ``BONA FIDE EXECUTIVE,'' 
    ``ADMINISTRATIVE,'' OR ``PROFESSIONAL'' CAPACITY (INCLUDING ANY 
EMPLOYEE EMPLOYED IN THE CAPACITY OF ACADEMIC ADMINISTRATIVE PERSONNEL 
                    OR TEACHER IN SECONDARY SCHOOL)

                     Subpart A--General Regulations

Sec.
S541.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S541.01 Application of the exemptions of section 13(a)(1) of the FLSA.
S541.1 Executive.
S541.2 Administrative.
S541.3 Professional.
S541.5b Equal pay provisions of section 6(d) of the FLSA as applied by 
              the CAA extend to executive, administrative, and 
              professional employees.


                     Subpart A--General Regulations

     Sec. S541.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       541.1 Executive.--S541.1.
       541.2 Administrative.--S541.2.
       541.3 Professional.--S541.3.
       541.5b Equal pay provisions of section 6(d) of the FLSA 
     apply to executive, administrative, and professional 
     employees.--S541.5b.

     Sec. S541.01 Application of the exemptions of section 
       13(a)(1) of the FLSA.

       (a) Section 13(a)(1) of the FLSA, which provides certain 
     exemptions for employees employed in a bona fide executive, 
     administrative, or professional capacity (including any 
     employee employed in the capacity of academic administrative 
     personnel or teacher in a secondary school), applies to 
     covered employees by virtue of Section 225(f)(1) of the CAA.
       (b) The substantive regulations set forth in this part are 
     promulgated under the authority of sections 203(c) and 304 of 
     the CAA, which require that such regulations be the same as 
     the substantive regulations promulgated by the Secretary of 
     Labor except where the Board determines for good cause shown 
     that modifications would be more effective for the 
     implementation of the rights and protections of covered 
     employees.

     Sec. S541.1 Executive.

       The term employee employed in a bona fide executive * * * 
     capacity in section 13(a)(1) of the FLSA as applied by the 
     CAA shall mean any employee:
       (a) Whose primary duty consists of the management of an 
     employing office in which he is employed or of a customarily 
     recognized department of subdivision thereof; and
       (b) Who customarily and regularly directs the work of two 
     or more other employees therein; and
       (c) Who has the authority to hire or fire other employees 
     or whose suggestions and recommendations as to the hiring or 
     firing and as to the advancement and promotion or any other 
     change of status of other employees will be given particular 
     weight; and
       (d) Who customarily and regularly exercises discretionary 
     powers; and
       (e) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours of work 
     in the workweek to activities which are not directly and 
     closely related to the performance of the work described in 
     paragraphs (a) through (d) of this section: Provided, That 
     this paragraph shall not apply in the case of an employee who 
     is in sole charge of an independent establishment or a 
     physically separated branch establishment; and
       (f) Who is compensated for his services on a salary basis 
     at a rate of not less than $155 per week, exclusive of board, 
     lodging or other facilities: Provided, That an employee who 
     is compensated on a salary basis at a rate of not less than 
     $250 per week, exclusive of board, lodging or other 
     facilities, and whose primary duty consists of the management 
     of the employing office in which the employee is employed or 
     of a customarily recognized department or subdivision 
     thereof, and includes the customary and regular direction of 
     the work of two or more other employees therein, shall be 
     deemed to meet all the requirements of this section

     Sec. S541.2 Administrative.

       The term employee employed in a bona fide * * * 
     administrative * * * capacity in section 13(a)(1) of the FLSA 
     as applied by the CAA shall mean any employee:
       (a) Whose primary duty consists of either: (1) The 
     performance of office or nonmanual work directly related to 
     management policies or general operations of his employer or 
     his employer's customers, or (2) The performance of functions 
     in the administration of the Congressional Page School or of 
     a department or subdivision thereof, in work directly related 
     to the academic instruction or training carried on therein; 
     and
       (b) Who customarily and regularly exercises discretion and 
     independent judgment; and
       (c)(1) Who regularly and directly assists the head of an 
     employing office, or an employee employed in a bona fide 
     executive or administrative capacity (as such terms are 
     defined in the regulations of this subpart), or (2) Who 
     performs under only general supervision work along 
     specialized or technical lines requiring special training, 
     experience, or knowledge, or (3) Who executes under only 
     general supervision special assignments and tasks; and
       (d) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours worked in 
     the workweek to activities which are not directly and closely 
     related to the performance of the work described in 
     paragraphs (a) through (c) of this section; and
       (e)(1) Who is compensated for his services on a salary or 
     fee basis at a rate of not less than $155 per week, exclusive 
     of board, lodging or other facilities, or (2) Who, in the 
     case of academic administrative personnel, is compensated for 
     services as required by paragraph (e)(1) of this section, or 
     on a salary basis which is at least equal to the entrance 
     salary for teachers of the Congressional Page School: 
     Provided, That an employee who is compensated on a salary or 
     fee basis at a rate of not less than $250 per week, exclusive 
     of board, lodging or other facilities, and whose primary duty 
     consists of the performance of work described in paragraph 
     (a) of this section, which includes work requiring the 
     exercise of discretion and independent judgment, shall be 
     deemed to meet all the requirements of this section.

     Sec. S541.3 Professional.

       The term employee employed in a bona fide * * * 
     professional capacity in section 13(a)(1) of the FLSA as 
     applied by the CAA shall mean any employee:
       (a) Whose primary duty consists of the performance of: (1) 
     Work requiring knowledge of an advance type in a field of 
     science or learning customarily acquired by a prolonged 
     course of specialized intellectual instruction and study, as 
     distinguished from a general academic education and from an 
     apprenticeship, and from training in the performance of 
     routine mental, manual, or physical processes, or (2) Work 
     that is original and creative in character in a recognized 
     field of artistic endeavor (as opposed to work which can be 
     produced by a person endowed with general manual or 
     intellectual ability and training), and the result of which 
     depends primarily on the invention, imagination, or talent of 
     the employee, or (3) Teaching, tutoring, instructing, or 
     lecturing in the activity of imparting knowledge and who is 
     employed and engaged in this activity as a teacher in the 
     Congressional Page School, or (4) Work that requires 
     theoretical and practical application of highly-specialized 
     knowledge in computer systems analysis, programming, and 
     software engineering, and who is employed and engaged in 
     these activities as a computer systems analyst, computer 
     programmer, software engineer, or other similarly skilled 
     worker in the computer software field; and
       (b) Whose work requires the consistent exercise of 
     discretion and judgment in its performance; and
       (c) Whose work is predominantly intellectual and varied in 
     character (as opposed to routine mental, manual, mechanical, 
     or physical work) and is of such character that the output 
     produced or the result accomplished cannot be standardized in 
     relation to a given period of time; and
       (d) Who does not devote more than 20 percent of his hours 
     worked in the workweek to activities which are not an 
     essential part of and necessarily incident to the work 
     described in paragraphs (a) through (c) of this section; and
       (e) Who is compensated for services on a salary or fee 
     basis at a rate of not less than $170 per week, exclusive of 
     board, lodging or other facilities: Provided, That this 
     paragraph shall not apply in the case of an employee who is 
     the holder of a valid license or certificate permitting the 
     practice of law or medicine or any of their branches and who 
     is actually engaged in the practice thereof, nor in the case 
     of an employee who is the holder of the requisite academic 
     degree for the general practice of medicine and is engaged in 
     an internship or resident program pursuant to the practice of 
     medicine or any of its branches, nor in the case of an 
     employee employed and engaged as a teacher as provided in 
     paragraph (a)(3) of this section: Provided further, That an 
     employee who is compensated on a salary or fee basis at a 
     rate of not less than $250 per week, exclusive of board, 
     lodging or other facilities, and whose primary duty consists 
     of the performance either of work described in paragraph (a) 
     (1), (3), or (4) of this section, which includes work 
     requiring the consistent exercise of discretion and judgment, 
     or of work requiring 

[[Page S 17609]]
     invention, imagination, or talent in a recognized field of artistic 
     endeavor, shall be deemed to meet all of the requirements of 
     this section: Provided further, That the salary or fee 
     requirements of this paragraph shall not apply to an employee 
     engaged in computer-related work within the scope of 
     paragraph (a)(4) of this section and who is compensated on an 
     hourly basis at a rate in excess of 6\1/2\ times the minimum 
     wage provided by section 6 of the FLSA as applied by the CAA.

     Sec. S541.5b Equal pay provisions of section 6(d) of the FLSA 
       as applied by the CAA extend to executive, administrative, 
       and professional employees.

       The FLSA, as amended and as applied by the CAA, includes 
     within the protection of the equal pay provisions those 
     employees exempt from the minimum wage and overtime pay 
     provisions as bona fide executive, administrative, and 
     professional employees (including any employee employed in 
     the capacity of academic administrative personnel or teacher 
     in elementary or secondary schools) under section 13(a)(1) of 
     the FLSA. Thus, for example, where an exempt administrative 
     employee and another employee of the employing office are 
     performing substantially ``equal work,'' the sex 
     discrimination prohibitions of section 6(d) are applicable 
     with respect to any wage differential between those two 
     employees.


   PART S547--REQUIREMENTS OF A ``BONA FIDE THRIFT OR SAVINGS PLAN.''

Sec.
S547.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S547.0 Scope and effect of part.
S547.1 Essential requirements of qualifications.
S547.2 Disqualifying provisions.

     Sec. S547.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance (OC) Regulations under 
     Section 203 of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       547.0 Scope and effect of part.--S547.0.
       547.1 Essential requirements of qualifications.--S547.1.
       547.2 Disqualifying provisions.--S547.2.

     Sec. S547.0 Scope and effect of part.

       (a) The regulations in this part set forth the requirements 
     of a ``bona fide thrift or savings plan'' under section 
     7(e)(3)(b) of the Fair Labor Standards Act of 1938, as 
     amended (FLSA), as applied by the CAA. In determining the 
     total remuneration for employment which section 7(e) of the 
     FLSA requires to be included in the regular rate at which an 
     employee is employed, it is not necessary to include any sums 
     paid to or on behalf of such employee, in recognition of 
     services performed by him during a given period, which are 
     paid pursuant to a bona fide thrift or savings plan meeting 
     the requirements set forth herein. In the formulation of 
     these regulations due regard has been given to the factors 
     and standards set forth in section 7(e)(3)(b) of the Act.
       (b) Where a thrift or savings plan is combined in a single 
     program (whether in one or more documents) with a plan or 
     trust for providing old age, retirement, life, accident or 
     health insurance or similar benefits for employees, 
     contributions made by the employer pursuant to such thrift or 
     savings plan may be excluded from the regular rate if the 
     plan meets the requirements of the regulation in this part 
     and the contributions made for the other purposes may be 
     excluded from the regular rate if they meet the tests set 
     forth in regulations.

     Sec. S547.1 Essential requirements for qualifications.

       (a) A ``bona fide thrift or savings plan'' for the purpose 
     of section 7(e)(3)(b) of the FLSA as applied by the CAA is 
     required to meet all the standards set forth in paragraphs 
     (b) through (f) of this section and must not contain the 
     disqualifying provisions set forth in Sec. S547.2.
       (b) The thrift or savings plan constitutes a definite 
     program or arrangement in writing, adopted by the employer or 
     by contract as a result of collective bargaining and 
     communicated or made available to the employees, which is 
     established and maintained, in good faith, for the purpose of 
     encouraging voluntary thrift or savings by employees by 
     providing an incentive to employees to accumulate regularly 
     and retain cash savings for a reasonable period of time or to 
     save through the regular purchase of public or private 
     securities.
       (c) The plan specifically shall set forth the category or 
     categories of employees participating and the basis of their 
     eligibility. Eligibility may not be based on such factors as 
     hours of work, production, or efficiency of the employees: 
     Provided, however, That hours of work may be used to 
     determine eligibility of part-time or casual employees.
       (d) The amount any employee may save under the plan shall 
     be specified in the plan or determined in accordance with a 
     definite formula specified in the plan, which formula may be 
     based on one or more factors such as the straight-time 
     earnings or total earnings, base rate of pay, or length of 
     service of the employee.
       (e) The employer's total contribution in any year may not 
     exceed 15 percent of the participating employees' total 
     earnings during that year. In addition, the employer's total 
     contribution in any year may not exceed the total amount 
     saved or invested by the participating employees during that 
     year: Provided, however, That a plan permitting a greater 
     contribution may be submitted to the Administrator and 
     approved by him as a ``bona fide thrift or savings plan'' 
     within the meaning of section 7(e)(3)(b) of the Act if: (1) 
     The plan meets all the other standards of this section; (2) 
     The plan contains none of the disqualifying factors 
     enumerated in Sec. S547.2; (3) The employer's contribution is 
     based to a substantial degree upon retention of savings; and 
     (4) The amount of the employer's contribution bears a 
     reasonable relationship to the amount of savings retained and 
     the period of retention.
       (f) The employer's contributions shall be apportioned among 
     the individual employees in accordance with a definite 
     formula or method of calculation specified in the plan, which 
     formula or method of calculation is based on the amount saved 
     or the length of time the individual employee retains his 
     savings or investment in the plan: Provided, That no 
     employee's share determined in accordance with the plan may 
     be diminished because of any other remuneration received by 
     him.

     Sec. S547.2 Disqualifying provisions.

       (a) No employee's participation in the plan shall be on 
     other than a voluntary basis.
       (b) No employee's wages or salary shall be dependent upon 
     or influenced by the existence of such thrift or savings plan 
     or the employer's contributions thereto.
       (c) The amounts any employee may save under the plan, or 
     the amounts paid by the employer under the plan may not be 
     based upon the employee's hours of work, production or 
     efficiency.


                   PART S570--CHILD LABOR REGULATIONS

                           SUBPART A--GENERAL

Sec.
S570.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S570.1 Definitions.
S570.2 Minimum age standards.


 Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child 
                             Labor Reg. 3)

S570.31 Determination.
S570.32 Effect of this subpart.
S570.33 Occupations.
S570.35 Periods and conditions of employment.


                           Subpart A--General

     Sec. S570.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance Regulations under 
     Section 202 of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       570.1 Definitions.--S570.1.
       570.2 Minimum age standards.--S570.2.
       570.31 Determinations.--S570.31.
       570.32 Effect of this subpart.--S570.32.
       570.33 Occupations.--S570.33.
       570.35 Periods and conditions of employment.--S570.35.

     Sec. S570.1 Definitions.

       As used in this part:
       (a) Act means the Fair Labor Standards Act of 1938, as 
     amended (52 Stat. 1060, as amended; 29 U.S.C. 201-219).
       (b) Oppressive child labor means employment of a minor in 
     an occupation for which he does not meet the minimum age 
     standards of the Act, as set forth in Sec. S570.2 of this 
     subpart.
       (c) Oppressive child labor age means an age below the 
     minimum age established under the Act for the occupation in 
     which a minor is employed or in which his employment is 
     contemplated.
       (d) [Reserved]
       (e) [Reserved]
       (f) Secretary or Secretary of Labor means the Secretary of 
     Labor, United States Department of Labor, or his authorized 
     representative.
       (g) Wage and Hour Division means the Wage and Hour 
     Division, Employment Standards Administration, United States 
     Department of Labor.
       (h) Administrator means the Administrator of the Wage and 
     Hour Division or his authorized representative.

     Sec. S570.2 Minimum age standards.

       (a) All occupations except in agriculture. (1) The Act, in 
     section 3(1), sets a general 16-year minimum age which 
     applies to all employment subject to its child labor 
     provisions in any occupation other than in agriculture, with 
     the following exceptions: (i) The Act authorizes the 
     Secretary of Labor to provide by regulation or by order that 
     the employment of employees between the ages of 14 and 16 
     years in occupations other than manufacturing and mining 
     shall not be deemed to constitute oppressive child labor, if 
     and to the extent that the Secretary of Labor determines that 
     such employment is confined to periods which will not 
     interfere with their schooling and to conditions which will 
     not interfere with their health and well-being (see subpart C 
     of this part); and (ii) 

[[Page S 17610]]
     The Act sets an 18-year minimum age with respect to employment in any 
     occupation found and declared by the Secretary of Labor to be 
     particularly hazardous for the employment of minors of such 
     age or detrimental to their health or well-being. (2) The Act 
     exempts from its minimum age requirements the employment by a 
     parent of his own child, or by a person standing in place of 
     a parent of a child in his custody, except in occupations to 
     which the 18-year age minimum applies and in manufacturing 
     and mining occupations.


                          Subpart B [Reserved]

 Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child 
                             Labor Reg. 3)

     Sec. S570.31 Determination.

       The employment of minors between 14 and 16 years of age in 
     the occupations, for the periods, and under the conditions 
     hereafter specified does not interfere with their schooling 
     or with their health and well-being and shall not be deemed 
     to be oppressive child labor.

     Sec. S570.32 Effect of this subpart.

       In all occupations covered by this subpart the employment 
     (including suffering or permitting to work) by an employer of 
     minor employees between 14 and 16 years of age for the 
     periods and under the conditions specified in Sec. S570.35 
     shall not be deemed to be oppressive child labor within the 
     meaning of the Fair Labor Standards Act of 1938.

     Sec. S570.33 Occupations.

       This subpart shall apply to all occupations other than the 
     following:
       (a) Manufacturing, mining, or processing occupations, 
     including occupations requiring the performance of any duties 
     in work rooms or work places where goods are manufactured, 
     mined, or otherwise processed;
       (b) Occupations which involve the operation or tending of 
     hoisting apparatus or of any power-driven machinery other 
     than office machines;
       (c) The operation of motor vehicles or service as helpers 
     on such vehicles;
       (d) Public messenger service;
       (e) Occupations which the Secretary of Labor may, pursuant 
     to section 3(1) of the Fair Labor Standards Act and 
     Reorganization Plan No. 2, issued pursuant to the 
     Reorganization Act of 1945, find and declare to be hazardous 
     for the employment of minors between 16 and 18 years of age 
     or detrimental to their health or well-being;
       (f) Occupations in connection with: (1) Transportation of 
     persons or property by rail, highway, air, water, pipeline, 
     or other means; (2) Warehousing and storage; (3) 
     Communications and public utilities; (4) Construction 
     (including demolition and repair); except such office 
     (including ticket office) work, or sales work, in connection 
     with paragraphs (f)(1), (2), (3), and (4) of this section, as 
     does not involve the performance of any duties on trains, 
     motor vehicles, aircraft, vessels, or other media of 
     transportation or at the actual site of construction 
     operations.

     Sec. S570.35 Periods and conditions of employment.

       (a) Except as provided in paragraph (b) of this section, 
     employment in any of the occupations to which this subpart is 
     applicable shall be confined to the following periods: (1) 
     Outside school hours; (2) Not more than 40 hours in any 1 
     week when school is not in session; (3) Not more than 18 
     hours in any 1 week when school is in session; (4) Not more 
     than 8 hours in any 1 day when school is not in session; (5) 
     Not more than 3 hours in any 1 day when school is in session; 
     and (6) Between 7 a.m. and 7 p.m. in any 1 day, except during 
     the summer (June 1 through Labor Day) when the evening hour 
     will be 9 p.m.

                        Fair Labor Standards Act


 proposed regulations relating to the house of representatives and its 
                           employing offices

                          office of compliance

       The Congressional Accountability Act of 1995: Extension of 
     Rights and Protections Under the Fair Labor Standards Act of 
     1938 (Notices of Proposed Rulemaking with respect to Interns 
     and Irregular Work Schedules were issued on October 11. The 
     comment period closed on November 13. Final rules will be 
     issued separately pursuant to Section 304 of the CAA.)

                     Notice of proposed rulemaking

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed rules to implement section 203(c) of 
     the Congressional Accountability Act of 1995 (P.L. 104-1, 
     Stat. 10) (``CAA''). The proposed regulations, which are to 
     be applied to the House of Representatives and employees of 
     the House of Representatives, set forth the recommendations 
     of the Deputy Executive Director for the House of 
     Representatives, Office of Compliance, as approved by the 
     Board of Directors, Office of Compliance.
       Dates: Comments are due within 30 days after publication of 
     this Notice in the Congressional Record.
       Addresses: Submit written comments to the Chair of the 
     Board of Directors, Office of Compliance, Room LA 200, 
     Library of Congress, Washington, D.C. 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, D.C., Monday through Friday, between the hours of 
     9:30 a.m. and 4:00 p.m.
       For further information contact: Deputy Executive Director 
     for the House of Representatives, 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) 224-2705.
       Supplementary Information:

                             I. Background

                            A. Introduction

       The Congressional Accountability Act of 1995 (``CAA''), PL 
     104-1, was enacted into law on January 23, 1995. In general, 
     the CAA applies the rights and protections of eleven federal 
     labor and employment law statutes to covered employees and 
     employing offices within the legislative branch. Section 
     203(a) of the CAA applies the rights and protections of 
     subsections (a)(1) and (d) of section 6, section 7, and 
     section 12(c) of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 206(a)(1) and (d), 207, 212(c) (``FLSA'') to covered 
     employees and employing offices. Section 203(c) of the CAA (2 
     U.S.C. Section 1313(c)) directs the Board of Directors of the 
     Office of Compliance established under the CAA to issue 
     regulations to implement the section. Section 203(c)(2) (2 
     U.S.C. Section 1313(c)(2)) further states that such 
     regulations, with the exception of certain irregular work 
     schedule regulations to be issued under section 203(a)(3), 
     ``shall be the same as substantive regulations issued by the 
     Secretary of Labor to implement the statutory provisions 
     referred to in subsection (a) 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.''

                B. Advance notice of proposed rulemaking

       On September 28, 1995, the Board of the Office of 
     Compliance issued an Advance Notice of Proposed Rulemaking 
     (``ANPRM'') soliciting comments from interested parties in 
     order to obtain participation and information early in the 
     rulemaking process. 141 Cong. R. S14542 (daily ed., Sept. 28, 
     1995). In addition to inviting comment on specific questions 
     arising under five of the statutes made applicable by the CAA 
     in the ANPRM, the Board and the statutory appointees of the 
     Office sought consultation with the Chair of the 
     Administrative Conference of the United States, the Secretary 
     of Labor and the Director of the Office of Personnel 
     Management with regard to the development of these 
     regulations in accordance with section 304(g) of the CAA. The 
     Office has also consulted with interested parties to further 
     its understanding of the need for and content of appropriate 
     regulations. Based on the information gleaned from these 
     consultations and the comments on the ANPRM, the Board of 
     Directors of the Office of Compliance is publishing these 
     proposed rules, pursuant to Section 203(c)(1) of the CAA (2 
     U.S.C. Section 1313(c)(1)).
     1. Modification of the regulations of the Department of Labor
       In the ANPRM, the Board asked the question, ``Whether and 
     to what extent should the Board modify the Secretary's 
     Regulations?'' The Board received 15 comments on the ANPRM: 
     two from Senators, four from House Members (one from the 
     leadership of the Committee with primary jurisdiction for the 
     CAA and one from three of the sponsors of the CAA), one from 
     the Secretary of the Senate and three from House offices (two 
     from institutional offices and one from a Member's Chief of 
     Staff), four from business coalitions or associations 
     representing an array of private employers, and one from a 
     labor organization.
       Those commenters who expressed views on the ANPRM cited 
     both the statute and the legislative history in taking the 
     position that the CAA presumes that the regulations of the 
     Department of Labor should not be modified. Illustrative 
     comments included the following:
       ``[Section 304 of the CAA] evidences clear legislative 
     intent that the Board apply these rights and protections to 
     Congressional employees in a manner comparable to and 
     consistent with the rights and protections applicable to 
     employees in the private sector under regulations adopted by 
     the Secretary (DOL). . . . The [CAA] requires that the 
     regulations issued by the Board be the same as those issued 
     by DOL unless the Board determines that modification would 
     more effectively implement the rights and protections of the 
     laws made applicable under the [CAA].''
       ``[I]f a law is right for the private sector, it is right 
     for Congress; . . . Consistent with [this] principle, we 
     would urge the Office not to deviate (except in those few 
     areas where expressly authorized by the CAA) from applying 
     the laws in the same manner in which they are applied to the 
     private sector.

                           *   *   *   *   *

       [W]e have not identified any situations in which 
     modifications [of the DOL regulations] would be 
     appropriate.''
       ``There are no circumstances that justify `good cause' for 
     adopting regulations that deviate from those currently 
     applied to private sector employers.''
       ``[Section 203(c)(2)] confers on the Office of Compliance 
     only very limited authority to 

[[Page S 17611]]
     deviate from the present DOL regulations. The legislative history to 
     the `good cause' exception likewise makes clear that this 
     authority is to be used by the Office of Compliance 
     sparingly.''

                           *   *   *   *   *

        ``The legislative history of the CAA demands that the 
     Office of Compliance apply to Congress the same regulations 
     as those imposed on the private sector.''
       ``[W]e urge the Board to refrain from modifying regulations 
     promulgated by the Department of Labor and other Executive 
     agencies. Use of established regulations will provide the 
     Board, employees and employing offices with a body of 
     instructive case law and interpretive documents.''
        ``While the Office serves an important implementation and 
     enforcement role, it must not place itself in the position of 
     shielding Congress from substantive requirements imposed on 
     private businesses.''
       Based on the comments and the Board's understanding of the 
     law and the institutions to which it is being made 
     applicable, the Board is issuing the Secretary's regulations 
     with only these limited modifications: Technical changes in 
     the nomenclature and deletion of those sections clearly 
     inapplicable to the legislative branch.
     2. Notice posting and recordkeeping
       The ANPRM also invited comment on whether the recordkeeping 
     and notice posting requirements of the various laws made 
     applicable by the CAA are incorporated as statutory 
     requirements of the CAA. The ANPRM inquired whether, if such 
     requirements were not incorporated, could and should the 
     Board develop its own requirements pursuant to its ``good 
     cause'' authority. The ANPRM also invited comment on 
     proposing guidelines and models for recordkeeping and notice 
     posting.
       Commenters were in agreement that recordkeeping and notice 
     posting are important to the effective implementation of 
     several of the statutes incorporated in the CAA. However, 
     opinions as to whether the Board should require notice 
     posting and recordkeeping were widely divergent. Several 
     commenters expressed the view that the Board lacks the 
     statutory authority to adopt notice posting and recordkeeping 
     requirements and that the notice posting and recordkeeping 
     requirements of the FLSA do not apply to Congress. Other 
     commenters expressed the view that the Board has the 
     authority to issue regulations to impose recordkeeping and 
     notice posting requirements and that such regulations should 
     be, in substance, the same as those with which the private 
     sector must comply.
       The Board agrees with those commenters who took the 
     position that, if employing offices are to be treated the 
     same as private sector employers are treated under FLSA, they 
     should have to comply with the statute's notice posting and 
     recordkeeping requirements. Moreover, the Board notes that 
     notice posting and recordkeeping promote the full and 
     effective enforcement of these incorporated rights and 
     protections. In the Board's view, notice posting and 
     recordkeeping may well be in employers' interests both as a 
     sound personnel practice and in order to defend against 
     subsequent litigation.
       But while the CAA incorporates certain specific sections of 
     the FLSA, the CAA explicitly did not incorporate the notice 
     posting and recordkeeping requirements of Section 11, 29 
     U.S.C. Sec. 211 of the FLSA. Because the Board's authority to 
     modify the Secretary's regulations for ``good cause'' does 
     not authorize it to adopt regulatory requirements that are 
     the equivalent of statutory requirements that Congress has 
     omitted from the CAA, the Board has determined that it may 
     not impose such requirements on employing offices. However, 
     as various commenters suggest, the Board will provide 
     guidance to employing offices concerning model recordkeeping 
     practices as part of carrying out its program of education 
     under section 301(h) of the CAA (2 U.S.C. 1381(h)).
       The Board would also note that based upon their collective 
     years of experience representing employers and employees 
     with regard to various labor and employment laws, 
     including the FLSA, the absence of recordkeeping and 
     notice posting requirements may create a void which can 
     only partially be filled by the program of education to be 
     carried out by the Board pursuant to Section 301(h)(1) and 
     the optional notice which will be distributed by the Board 
     pursuant to Section 301(h)(2). The Board also would 
     emphasize that employees will in many circumstances be 
     able to establish a prima facie case simply by their own 
     testimony estimating the hours worked by the employees 
     where the employing office has failed to maintain 
     adequate, accurate records. An employing office may find 
     that its ability to respond to an employee's prima facie 
     case is substantially burdened by its failure to keep 
     accurate payroll and time-records. If Congress wishes to 
     experience the same burdens as faced by the private sector 
     and also to address these issues, it should enact 
     recordkeeping requirements comparable to those of the 
     FLSA. (Of course, like the regulations under those 
     statutes, such recordkeeping requirements may leave to the 
     discretion of each employing office the precise form and 
     manner in which records will be kept.) But, in light of 
     the text and structure of the CAA, the Board believes that 
     it is up to Congress to decide whether to do so.

                      II. The proposed regulations

                             A. Background

       Congress committed enforcement of the Fair Labor Standards 
     Act of 1938 to the Department of Labor and its Wage and Hour 
     Division, whose regulations and interpretations of that Act 
     comprise almost one thousand pages of Chapter V, Title 29 of 
     the Code of Federal Regulations. In enacting the CAA, 
     however, Congress expressly refused to commit enforcement to 
     the executive branch of the Federal government nor did 
     Congress bring its employing offices under the FLSA itself. 
     Instead, Congress carefully specified, through sectional 
     references to the FLSA, the substantive rights and 
     protections afforded to legislative employees, and precisely 
     mandated procedures by which those rights and protections 
     would be largely enforced by a new and independent office in 
     the legislative branch, the Office of Compliance. Further, in 
     granting the Board rulemaking authority with respect to the 
     FLSA in Section 203(c)(1) of the CAA, Congress affirmatively 
     commanded the Board to issue substantive regulations, with 
     the important directive that they ``shall be the same as 
     substantive regulations promulgated by the Secretary of Labor 
     * * * except as the Board may determine, for good cause shown 
     * * * that a modification of such regulations would be more 
     effective for the implementation of rights and protections 
     under'' the CAA.
       In the Board's view, and notwithstanding what has been 
     urged by some of the commenters, this unusual statutory 
     framework neither mandates nor allows an uncritical, 
     wholesale incorporation of all the regulations and 
     interpretive statements issued by the Labor Department under 
     the FLSA. Rather, this statutory framework requires the Board 
     to cull from the vast body of FLSA material found in the Code 
     of Regulations only those items that constitute ``substantive 
     regulations'' as the term is understood under settled 
     principles of administrative law. (See Batterton v. Francis, 
     422 U.S. 416, 425, n. 9 (1977)). Moreover, the statutory 
     framework authorizes the Board to delete those substantive 
     regulations that either have no application in the employing 
     offices of the Congress or that are not likely to be invoked. 
     For these reasons, the Board is not proposing their adoption, 
     unless public comments establish a justification to the 
     contrary. Finally, by limiting itself to substantive 
     regulations, the Board is not adopting those portions of 29 
     C.F.R. chapter V that constitute the interpretative bulletins 
     or statements of the Department of Labor and its Wage and 
     Hour Division.

                        B. Proposed regulations

     1. General provisions
       The proposed regulations include an initial Part 501 which 
     contains matters of general applicability including the 
     purpose and scope of the regulations, definitions, coverage, 
     and the administrative authority of the Board and the Office 
     of Compliance. In addition, a section explains the effect of 
     interpretative bulletins and statements of the Department of 
     Labor, and another section provides for the application of 
     the Portal to Portal Act. These latter sections are discussed 
     below.
       It is noted that the definition section incorporates the 
     general provisions of section 101 of the CAA which defines 
     ``employee,'' ``covered employee,'' ``employing office,'' and 
     ``employee of the House of Representatives.'' Section 203 of 
     the CAA, which applies the rights and protections of the 
     FLSA, also contemplates the promulgation of a definitional 
     regulation that excludes ``interns'' from the meaning of 
     ``covered employee.'' The Board in a separate NPRM issued on 
     October 11, 1995, proposed such a regulation, together with a 
     regulation governing irregular work schedules and the receipt 
     of compensatory time in lieu of overtime compensation. The 
     Board is reviewing the public comments received in response 
     to that NPRM and will issue a separate final rule on those 
     issues.
       It should be noted that section 225(f)(1) of the CAA 
     provides that, except where inconsistent with definitions of 
     the CAA itself, the definitions in the laws made applicable 
     by the CAA shall also apply under the CAA. Thus, attention 
     must be paid to those definitions found in the FLSA that 
     are consistent with the CAA even if they are not expressly 
     incorporated in the proposed regulations. In this regard, 
     one commenter expressed concern over whether employing 
     offices would be obligated to pay minimum wages and 
     overtime compensation to individuals who do volunteer 
     work, in light of the fact that under the FLSA 
     ``employee'' may include certain volunteers. See 29 U.S.C. 
     Sec. 203(e)(4)(A), which excludes from the definition of 
     ``employee'' only certain volunteers who perform work for 
     a State, political subdivision, or interstate governmental 
     agency. Similarly, it is noted that, in enacting the CAA, 
     Congress did make separate provision for excluding 
     interns. Thus, the Board has concluded that, to the extent 
     that volunteer activity would bring an individual under 
     the coverage of the FLSA, similarly situated individuals 
     would be treated in the same manner under the CAA.
     2. Provisions derived from regulations of the Department of 
         Labor:
       Those regulations of the Department of Labor that are being 
     adopted in substance include:
       Part 531, which governs the manner in which an employee's 
     wages are calculated taking into account the reasonable cost 
     to 

[[Page S 17612]]
     an employer of furnishing board, lodging, or other facilities. This 
     Part is derived from Section 3(m) of the FLSA, which directs 
     how the ``wage'' paid to an employee is determined. Section 
     3(m) must be treated as applicable under the CAA by virtue of 
     Section 225(f)(1), which authorizes generally the inclusion 
     of those definitions and exemptions that are consistent with 
     definitions and exemptions of the CAA. However, it is noted 
     that section 3(m) is inconsistent with the CAA insofar as the 
     implementing regulations in Part 531, Title 29, C.F.R., 
     provide procedures by which the Wage and Hour Administrator 
     makes determinations in specific cases with respect to the 
     furnishing of board, lodging, or other facilities. Because 
     the Administrator has no role in the enforcement of the CAA 
     by reason of Section 225(f)(3), and because the Board is not 
     at this time authorizing the Office of Compliance to make 
     such specific determinations, the Board proposes to delete 
     the provisions setting forth those procedures. Similarly, the 
     reference to ``tipped employees'' and the method by which 
     their wages are determined are deleted because the applicable 
     sections assign responsibility to the Administrator.
       Part 541, which defines and delimits the bona fide 
     executive, administrative, and professional employees who are 
     exempt under Section 13(a) of the FLSA from the minimum wage 
     and maximum hours requirements. The Board has determined that 
     this exemption, commonly known as the ``white collar'' 
     exemption, is applicable to employing offices of Congress by 
     virtue of Section 225(f)(1) of the CAA.
       In the ANPRM, the Board solicited public comment on whether 
     and to what extent it should modify the Labor Department's 
     regulations regarding this exemption. Generally, the 
     commenters did not question the applicability of this 
     exemption to covered employees under the CAA, and several 
     commenters urged the adoption of all of the Department's 
     regulations in Part 541, 29 C.F.R., including the 
     interpretative bulletins, without any modification. Two 
     commenters contended that the Board's regulations should 
     grant a sweeping exemption for nearly all staff employees 
     working in elected members' offices because they exercise 
     independent judgment and discretion in performing their 
     responsibilities.
       Other commenters urged the Board to modify the Labor 
     Department regulations to take into account the unique job 
     responsibilities of staff working for an elected member 
     either in a personal office, in a leadership office or on 
     committee. Recognizing that job titles alone cannot be 
     dispositive of who is an exempt employee, these commenters 
     urged the Board to identify with particularity those job 
     duties which, if performed by an employee, would render him 
     or her an exempt executive, administrative, or professional 
     employee.
       The Board is proposing to adopt the Labor Department's 
     substantive regulations contained in Subpart A of Part 541 of 
     29 C.F.R. that set forth the fundamental criteria for 
     satisfying each of the three exemptions. But, for the reasons 
     explained below, the Board is not formally adopting the 
     interpretative bulletins contained in Subpart B of Part 541 
     of 29 C.F.R., which discuss and illustrate through examples 
     the Department's understanding of the exemption criteria.
       With respect to some commenters' request that the Board 
     modify the white collar exemptions, upon reflection, the 
     Board has reluctantly concluded that such a modification 
     would not satisfy the ``good cause'' requirement of Section 
     203(c)(2) of the CAA. The Board recognizes that the 
     Secretary's regulations and interpretations were promulgated 
     in a different era, with different employment paradigms in 
     mind. Thus, the Board appreciates the many difficulties that 
     employing offices will have in interpreting and reconciling 
     these regulations to present day realities. Moreover, the 
     Board is mindful of the significant impact the application of 
     the administrative, executive and professional exemption will 
     have on the structuring, functioning and expense of the 
     Members' and Senators' personal offices and committee 
     offices. However, the Board notes that private sector and 
     state and local government employers face the same 
     difficulties. And the Board has not found any sound, 
     principled basis for modifying the exemption regulation 
     for Congress and its instrumentalities. That resolved, the 
     Board nonetheless wishes to make clear its intent to 
     provide, as time and resources permit, appropriate general 
     guidance to the Congress and its instrumentalities on how 
     to identify and justify which employees are exempt. Such 
     efforts made through the Office's education and 
     information programs, will attempt to assist employing 
     offices in determining which job duties will be considered 
     exempt under the executive, administration or professional 
     criteria.
       Part 547, which defines, pursuant to Section 7(e)(3)(b) the 
     standard that bona fide thrift or savings plans must meet in 
     order not to be included within an employee's regular rate of 
     pay for purposes of calculating overtime obligations under 
     Section 7 of the FLSA. This is included in light of Section 
     203(a)(1) of the CAA, which specifically applied the rights 
     and protections of Section 7 of the FLSA.
       Part 570, which sets forth the limitations on the use of 
     child labor. This Part implements Section 12(c) of the FLSA, 
     prohibiting oppressive child labor, as defined by Section 
     3(l) of the same Act. The former section is specifically 
     referenced in Section 203(a)(1) of the CAA, while the latter 
     must be referenced by reason of Section 225(f)(1) of the CAA. 
     The inclusion of this Part in the separate regulations of the 
     Senate is necessitated by the fact that the Senate allows for 
     the appointment of congressional pages below the age of 16, 
     unlike the House of Representatives, which by law sets a 
     minimum age of 16 for such employees. For children under age 
     16, the FLSA regulations impose limitations on hours worked 
     during the school year. Part 570 is also included in the 
     separate regulations applicable to all other covered 
     employees and employing offices. Given the hazardous nature 
     of some of the activities of the support functions, such as 
     maintenance and repair, Part 570 regulations are being 
     proposed in the event that such instrumentalities employ 
     children under 18 years of age. It is noted that the Board 
     has not adopted regulations comparable to those set forth in 
     the Labor Department's Subpart B (29 C.F.R. Sections 570.5-
     .27), authorizing the issuance of certificates of age. In 
     addition, with respect to Section 570.52, governing the 
     hazardous occupation of motor-vehicle driver and outside 
     helper, the Board is not adopting the special exemption for 
     school bus driving because by its terms no employing offices 
     would satisfy the criteria of the regulation.

  C. Secretary of Labor's Regulations That the Board Proposes Not to 
                                 Adopt

       In reviewing the remaining parts of the Labor Department's 
     regulations, it is readily apparent that some have no 
     application to the employing offices within the legislative 
     branch. For this reason, the Board is not including them 
     within its substantive regulations. Among the excluded 
     regulations are: Part 510, which pertains to the application 
     of the minimum wage provisions to Puerto Rico; Part 511, 
     establishing a wage order procedure for American Samoa; Part 
     515, authorizing the utilization of State government agencies 
     for investigations and inspections; Part 530, governing the 
     employment of industrial homeworkers in certain industries; 
     Part 549, defining the requirements of a ``bona fide profit-
     sharing plan or trust;'' Part 550, defining the term ``talent 
     fees;'' Part 552, regulating the application of the FLSA to 
     domestic service; Part 575, addressing child labor in certain 
     agricultural employment; Parts 578, 579, and 580, 
     implementing the civil money penalties provisions of the 
     FLSA; and Part 679, dealing with industries in American 
     Samoa. Unless public comments suggest otherwise, the Board 
     intends including in the adopted regulations a provision 
     stating that the Board has issued regulations on all matters 
     for which the CAA requires a regulation. See Section 411 of 
     the CAA.
       Other substantive regulations could have application in the 
     event that an employing office wished to avail itself of 
     certain special wage rates, subminimum wage exemptions or 
     overtime exemptions under the FLSA. These are found in: Parts 
     519-528, which authorize subminimum wages for full-time 
     students, student-learners, apprentices, learners, 
     messengers, workers with disabilities, and student workers; 
     Part 548, which authorizes in the collective bargaining 
     context the establishment of basic wage rates for overtime 
     compensation purposes; and Part 551, which implements an 
     overtime exemption for local delivery drivers and helpers. 
     Unless public comments provide a sufficient justification to 
     the contrary the Board is not proposing the adoption of 
     regulations covering the foregoing subjects.

      III. The interpretive bulletins and other relevant guidance

       In addition to the substantive regulations found in 
     Subchapter A, the Department of Labor has issued, under 
     Subchapter B, ``Statements of General Policy or 
     Interpretations Not Directly Related to Regulations.'' 29 
     C.F.R Parts 775-794. Usually called Interpretive Bulletins, 
     these statements make available in one place the official 
     interpretations which guide the Secretary of Labor and the 
     Wage and Hour Administrator in the performance of their 
     duties. As the interpretations of an administering agency, 
     such statements are usually given some deference by the 
     courts. As the Supreme Court has observed:
       ``the rulings, interpretations and opinions of the 
     Administrator under this Act, while not controlling upon the 
     courts by reason of their authority, do constitute a body of 
     experience and informed judgment to which courts and 
     litigants may properly resort for guidance. The weight of 
     such a judgment in a particular case will depend upon the 
     thoroughness evident in the consideration, the validity of 
     its reasoning its consistency with earlier and later 
     pronouncements, and all those factors which give it power to 
     persuade, if lacking power to control.''
       Skidmore v. Swift, 323 U.S. 134, 140 (1944).
       However, unlike ``substantive regulations,'' these 
     interpretations are not issued by the agency pursuant to its 
     statutory authority to implement the statute and, more 
     significantly, do not have the force and effect of law. See 
     Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). The 
     Board's mandate is only to issue substantive regulations that 
     are ``the same as the substantive regulations of the 
     Secretary of Labor to implement the statutory provision [of 
     the FLSA] applied'' by Section 204(a) of the CAA unless 
     modified for good cause (CAA Section 203 (c)(2)). Therefore, 
     the Board, does not propose to adopt the non-substantive 
     interpretations of the DOL and its Wage and Hour Division as 
     substantive regulations under the CAA. 

[[Page S 17613]]
      Moreover, the Board is not proposing to issue the Department's 
     interpretations as its own interpretations of the FLSA rights 
     and protections made applicable under the CAA at this time. 
     However, as discussed below, employing offices should be 
     advised that, pursuant to the Portal to Portal Act, the Board 
     will give due consideration the Secretary's interpretations 
     of the FLSA.
       Application of the Portal to Portal Act.--The Portal to 
     Portal Act, 61 Stat. 84 (1947), codified generally at 29 
     U.S.C. Sections 216 and 251, et seq. (``PPA''), contains 
     provisions which affect the rights and liabilities of 
     employees and employers with regard to alleged underpayment 
     of minimum or overtime wages under the FLSA. Section 4 of the 
     PPA excludes from the definition of hours worked both 
     activities preliminary to or postliminary to the worker's 
     principal activities and travel time absent a contract, 
     custom or practice to the contrary. 29 U.S.C. Section 254. 
     Sections 9 and 10 of the PPA provide the employer with a 
     defense against liability or punishment in any action or 
     proceeding brought against it for failure to comply with the 
     minimum wage and overtime provisions of the FLSA, where the 
     employer pleads and proves that the act or omission 
     complained of was in good faith in conformity with and in 
     reliance on any regulation, order, ruling, approval, 
     interpretation, administrative practice or enforcement policy 
     of the Wage and Hour Administrator of the Department of 
     Labor. 29 U.S.C. Sections 258-259. The PPA also contains 
     provisions which restrict and limit employee suits under 
     section 16(b) of the FLSA. For example, section 11 of the PPA 
     provides that in any action brought under section 216 of the 
     FLSA, the court may in its discretion, subject to prescribed 
     conditions, award no liquidated damages or award any amount 
     of such damages not to exceed the amount specified in section 
     16(b) of the FLSA. 29 U.S.C. Section 260.
       The Board has determined that the above provisions of the 
     PPA are incorporated into section 203 of the CAA, either as 
     an amendment to section 16(b) of the FLSA (which is expressly 
     applied to the legislative branch under section 203(b) of the 
     CAA), or by virtue of section 225(f) of the CAA, which 
     applies the definitions and exemptions of the FLSA to the 
     extent not inconsistent with the CAA. To that end, the Board 
     will give due consideration to the interpretations of the 
     FLSA of the Secretary of Labor. Moreover, employing offices 
     may utilize these interpretations in attempting to understand 
     the rights and protections under the FLSA that have been made 
     applicable by the CAA. Unless and until the Secretary's 
     interpretive statements are superseded or interpretative 
     guidance or decisions to the contrary are issued by the Board 
     or the courts, they may be relied upon for purposes of 
     defending against claims brought under the CAA to the same 
     extent as private sector employers may properly rely upon 
     them in actions brought under the FLSA.
       Joint Employer Doctrine.--The Board solicited comments in 
     the ANPRM on whether and to what extent the joint employment 
     doctrine as developed under the FLSA is applicable under the 
     CAA. The comments generally advocated adoption of the 
     doctrine to employing offices of the Congress. However, since 
     the issue of joint employment is addressed through a DOL 
     interpretive bulletin set forth in Part 791, 29 C.F.R., 
     rather than a substantive regulation, the Board is not 
     adopting it as such nor issuing it as its own interpretive 
     statement. See discussion at Section III.
       Equal Pay Act.--With respect to the Equal Pay Act (EPA), 
     which is included in Section 6(d) of the FLSA, 29 U.S.C. 
     Section 206(d), the Secretary of Labor promulgated 
     interpretative regulations that were originally included in 
     29 C.F.R. Part 800. Pursuant to the provisions of 
     Reorganization Plan No. 1 of 1978, as confirmed by the 
     Congress in Public Law 98-532, 98 Stat. 2705 (1984), 
     enforcement and administration of the EPA was transferred 
     from the Secretary of Labor to the Equal Employment 
     Opportunity Commission (EEOC). The EEOC promulgated its 
     own interpretations implementing the EPA at 29 C.F.R. Part 
     1620. Thereafter, the Secretary deleted its 
     interpretations. 52 FR 2517 (Jan. 23, 1987). Thus, there 
     are no substantive regulations implementing the EPA. Under 
     the rationale previously stated regarding the Portal to 
     Portal Act, the Board declines to incorporate the EEOC 
     interpretations as substantive regulations under the CAA 
     but will recognize them as is appropriate.
       Opinion Letters.--Commenters asked that the Board consider 
     establishing a process under which the Office or the Board 
     would issue opinion letters and upon which employing offices 
     could rely, similar to the procedure followed by the Wage and 
     Hour Administrator in sometimes providing such opinions at 
     the request of private sector employers. The Board 
     understands employing offices' desire for guidance and 
     clarity regarding their obligations under the CAA.
       To the extent that the Board itself can address issues 
     through regulations or interpretations, it will do so. 
     Moreover, the Office intends to provide appropriate education 
     and technical assistance as part of its education and 
     information responsibilities. But for the reasons stated 
     here, the Board and the Office's ability to do so is limited 
     by legal, resource and policy considerations. As is the case 
     in the private sector context, many issues under these 
     statutes can only be definitively resolved through case-by-
     case adjudication on particular facts. Moreover, except in 
     the context of statutes subject to the Portal to Portal Act, 
     it is doubtful that the Board or the Office has the statutory 
     authority to issue guidance with legal effect (outside of the 
     adjudicatory or rulemaking contexts); we are not aware of any 
     such legal authorization for Executive Branch agencies to do 
     so in the context of applying these same laws to the private 
     sector. Further, the resources of the Board and the Office 
     are limited: the first year appropriation is for $2.5 
     million. These resources are substantially less than those 
     available to analogous Executive Branch agencies that 
     administer fewer laws. Finally, public comment has not 
     provided the Board with the facts necessary for yet making 
     any of these determinations--and a detailed evidentiary 
     record is necessary for such judgment to be made. In short, 
     particularly in light of the various statutory 
     responsibilities of the Office and the Board, it is not 
     possible to give answers with legal effect to each individual 
     request for information and guidance. While the Board will 
     structure education and information programs to assist 
     employees and employing offices, it is forced to respond 
     that, like private employers, employing offices will 
     generally have to rely on their own counsel and human 
     resource advisors in determining their compliance with the 
     Congressional Accountability Act.

                         IV. Method of approval

       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolution; and (3) the version of the proposed 
     regulations that shall apply to other covered employees and 
     employing offices be approved by the Congress by concurrent 
     resolution.
       Signed at Washington, D.C., on this 21st day of November, 
     1995.

                                                Glen D. Nager,

                                               Chair of the Board,
                                             Office of Compliance.

 Subtitle B--Regulations Relating to the House of Representatives and 
                    Its Employing Offices--H Series

 Chapter III--Regulations Relating to the Rights and Protections Under 
                  the Fair Labor Standards Act of 1938


                     PART H501--GENERAL PROVISIONS

Sec.
H501.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
H501.101 Purpose and scope.
H501.102 Definitions.
H501.103 Coverage.
H501.104 Administrative authority.
H501.105 Effect of Interpretations of the Labor Department.
H501.106 Application of the Portal-to-Portal Act of 1947.

     Sec. H501.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the parts of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding parts of 
     the Office of Compliance (CO) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       Part 531: Wage payments under the Fair Labor Standards Act 
     of 1938--Part H531.
       Part 541: Defining and delimiting the terms ``bona fide 
     executive,'' ``administrative,'' and ``professional'' 
     employees--Part H541.
       Part 547 Requirements of a ``Bona fide thrift or savings 
     plan''--Part H547.


              Subpart A--Matters of General Applicability

     Sec. H501.101 Purpose and scope.

       (a) Section 203 of the Congressional Accountability Act 
     (CAA) provides that the rights and protections of subsections 
     (a)(1) and (d) of section 6, section 7, and section 12(c) of 
     the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. 
     Sec. Sec. 206(a)(1) & (d), 207, 212(c)) shall apply to 
     covered employees of the legislative branch of the Federal 
     government. Section 301 of the CAA creates the Office of 
     Compliance as an independent office in the legislative branch 
     for enforcing the rights and protections of the FLSA, as 
     applied by the CAA.
       (b) The FLSA as applied by the CAA provides for minimum 
     standards for both wages and overtime entitlements, and 
     delineates administrative procedures by which covered 
     worktime must be compensated. Included also in the FLSA are 
     provisions related to child labor, equal pay, and portal-to-
     portal activities. In addition, the FLSA exempts specified 
     employees or groups of employees from the application of 
     certain of its provisions.
       (c) This chapter contains the substantive regulations with 
     respect to the FLSA that the Board of Directors of the Office 
     of Compliance has adopted pursuant to Sections 203(c) and 304 
     of the CAA, which require that the Board promulgate 
     regulations that are ``the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     Sec. 203 of the CAA] except insofar as the Board may 
     determine, for good 

[[Page S 17614]]
     cause shown . . . that a modification of such regulations would be more 
     effective for the implementation of the rights and 
     protections under this section.''

     Sec. H501.102 Definitions.

       For purposes of this chapter:
       (a) CAA means the Congressional Accountability Act of 1995 
     (P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
       (b) FLSA or Act means the Fair Labor Standards Act of 1938, 
     as amended (29 U.S.C. Sec. 201 et seq.).
       (c) Covered employee means any employee of the House of 
     Representatives, including an applicant for employment and a 
     former employee.
       (d) Employee of the House of Representatives includes any 
     individual occupying a position the pay for which is 
     disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by (1) 
     the Capitol Guide Service; (2) the Capitol Police; (3) the 
     Congressional Budget Office; (4) the Office of the Architect 
     of the Capitol; (5) the Office of the Attending Physician; 
     (6) the Office of Compliance; or (7) the Office of Technology 
     Assessment.
       (e) Employing office and employer mean (1) the personal 
     office of a Member of the House of Representatives; (2) a 
     committee of the House of Representatives or a joint 
     committee; or (3) any other office headed by a person with 
     the final authority to appoint, hire, discharge, and set the 
     terms, conditions, or privileges of the employment of an 
     employee of the House of Representatives.
       (f) Board means the Board of Directors of the Office of 
     Compliance.
       (g) Office means the Office of Compliance.

     Sec. H501.103 Coverage.

       The coverage of Section 203 of the CAA extends to any 
     covered employee of an employing office without regard to 
     whether the covered employee is engaged in commerce or the 
     production of goods for interstate commerce and without 
     regard to size, number of employees, amount of business 
     transacted, or other measure.

     Sec. H501.104 Administrative authority.

       (a) The Office of Compliance is authorized to administer 
     the provisions of Section 203 of the Act with respect to any 
     covered employee or covered employer.
       (b) The Board is authorized to promulgate substantive 
     regulations in accordance with the provisions of Sections 
     203(c) and 304 of the CAA.
       (c) The Board may in its discretion from time to time issue 
     interpretative statements providing guidance to employees and 
     to employing offices on the rights and protections 
     established under the FLSA that are made applicable by 
     Sections 203(a) and 225 of the CAA.

     Sec. H501.105 Effect of Interpretations of the Department of 
       Labor.

       (a) In administering the FLSA, the Wage and Hour Division 
     of the Department of Labor has issued not only substantive 
     regulations but also interpretative bulletins. Substantive 
     regulations represent an exercise of statutorily-delegated 
     lawmaking authority from the legislative branch to an 
     administrative agency. Generally, they are proposed in 
     accordance with the notice-and-comment procedures of the 
     Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. Once 
     promulgated, such regulations are considered to have the 
     force and effect of law, unless set aside upon judicial 
     review as arbitrary, capricious, an abuse of discretion, or 
     otherwise not in accordance with law. See Batterton v. 
     Francis, 432 U.S. 416, 425 n.9 (1977). See also 29 C.F.R. 
     Sec. 790.17(b) (1994). Unlike substantive regulations, 
     interpretative statements, including bulletins and other 
     releases of the Wage and Hour Division, are not issued 
     pursuant to the provisions of the APA and may not have the 
     force and effect of law. Rather, they may only constitute 
     official interpretations of the Department of Labor with 
     respect to the meaning and application of the minimum wage, 
     maximum hour, and overtime pay requirements of the FLSA. See 
     29 C.F.R. Sec. 790.17(c) (citing Final Report of the Attorney 
     General's Committee on Administrative Procedure, Senate 
     Document No. 8, 77th Cong., 1st Sess., at p. 27 (1941)). The 
     purpose of such statements is to make available in one place 
     the interpretations of the FLSA which will guide the 
     Secretary of Labor and the Wage and Hour Administrator in the 
     performance of their duties unless and until they are 
     otherwise directed by authoritative decisions of the courts 
     or conclude, upon reexamination of an interpretation, that it 
     is incorrect. The Supreme Court has observed: ``[T]he 
     rulings, interpretations and opinions of the Administrator 
     under this Act, while not controlling upon the courts by 
     reason of their authority, do constitute a body of experience 
     and informed judgment to which courts and litigants may 
     properly resort for guidance. The weight of such a judgment 
     in a particular case will depend upon the thoroughness 
     evident in the consideration, the validity of its reasoning, 
     its consistency with earlier and later pronouncements, and 
     all those factors which give it power to persuade, if lacking 
     power to control.'' Skidmore v. Swift, 323 U.S. 134, 140 
     (1944).
       (b) Section 203(c) of the CAA provides that the substantive 
     regulations implementing Section 203 of the CAA shall be 
     ``the same as substantive regulations promulgated by the 
     Secretary of Labor'' except where the Board finds, for good 
     cause shown, that a modification would more effectively 
     implement the rights and protections established by the FLSA. 
     Thus, the CAA by its terms does not mandate that the Board 
     adopt the interpretative statements of the Department of 
     Labor or its Wage and Hour Division. The Board is thus not 
     adopting such statements as part of its substantive 
     regulations.

     Sec. H501.106 Application of the Portal-to-Portal Act of 
       1947.

       (a) Consistent with Section 225 of the CAA, the Portal to 
     Portal Act (PPA), 29 U.S.C. Sec. Sec. 216 and 251 et seq., is 
     applicable in defining and delimiting the rights and 
     protections of the FLSA that are prescribed by the CAA. 
     Section 10 of the PPA, 29 U.S.C. Sec. 259, provides in 
     pertinent part:
       [N]o 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, . . . if he pleads 
     and proves that the act or omission complained of was in good 
     faith in conformity with and reliance on any written 
     administrative regulation, order, ruling, approval or 
     interpretation of [the Administrator of the Wage and Hour 
     Division of the Department of Labor] . . . 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) In defending any action or proceeding based on any act 
     or omission arising out of section 203 of the CAA, an 
     employing office may satisfy the standards set forth in 
     subsection (a) by pleading and proving good faith reliance 
     upon:
       (1) Any written administrative regulation, order, decision, 
     ruling, approval or interpretation, or any administrative 
     practice or enforcement policy, of the Board.
       (2) Any written administrative regulation, order, ruling, 
     approval or interpretation, of the Administrator of the Wage 
     and Hour Division of the Department of Labor: Provided, that 
     such regulation, order, ruling, approval or interpretation 
     had not been superseded at the time of reliance by any 
     regulation, order, decision, ruling, approval or 
     interpretation, or any administrative practice or enforcement 
     policy, of the Board or the courts.


  PART H531--WAGE PAYMENTS UNDER THE FAIR LABOR STANDARDS ACT OF 1938

                     Subpart A--Preliminary Matters

Sec.
H531.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
H531.1 Definitions.
H531.2 Purpose and scope.


Subpart B--Determinations of ``Reasonable Cost;'' Effects of Collective 
                         Bargaining Agreements

H531.3 General determinations of `reasonable cost'.
H531.6 Effects of collective bargaining agreements.


                    Subpart A--Preliminary Matters.

     Sec. H531.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       531.1 Definitions--H531.1.
       531.2 Purpose and scope--H531.2.
       531.3 General determinations of ``reasonable cost''--
     H531.3.
       531.6 Effects of collective bargaining agreements--H531.6.

     Sec. H531.1 Definitions.

       (a) Administrator means the Administrator of the Wage and 
     Hour Division or his authorized representative. The Secretary 
     of Labor has delegated to the Administrator the functions 
     vested in him under section 3(m) of the Act.
       (b) Act means the Fair Labor Standards Act of 1938, as 
     amended.

     Sec. H531.2 Purpose and scope.

       (a) Section 3(m) of the Act defines the term `wage' to 
     include the `reasonable cost', as determined by the Secretary 
     of Labor, to an employer of furnishing any employee with 
     board, lodging, or other facilities, if such board, lodging, 
     or other facilities are customarily furnished by the employer 
     to his employees. In addition, section 3(m) gives the 
     Secretary authority to determine the `fair value.' of such 
     facilities on the basis of average cost to the employer or to 
     groups of employers similarly situated, on average value to 
     groups of employees, or other appropriate measures of `fair 
     value.' Whenever so determined and when applicable and 
     pertinent, the `fair value' of the facilities involved shall 
     be includable as part of `wages' instead of the actual 
     measure of the costs of 

[[Page S 17615]]
     those facilities. The section provides, however, that the cost of 
     board, lodging, or other facilities shall not be included as 
     part of `wages' if excluded therefrom by a bona fide 
     collective bargaining agreement. Section 3(m) also provides a 
     method for determining the wage of a tipped employee.
       (b) This part 531 contains any determinations made as to 
     the `reasonable cost' and `fair value' of board, lodging, or 
     other facilities having general application.


 Subpart B--Determinations of ``Reasonable Cost'' and ``Fair Value''; 
              Effects of Collective Bargaining Agreements

     Sec. H531.3 General determinations of `reasonable cost.'

       (a) The term reasonable cost as used in section 3(m) of the 
     Act is hereby determined to be not more than the actual cost 
     to the employer of the board, lodging, or other facilities 
     customarily furnished by him to his employees.
       (b) Reasonable cost does not include a profit to the 
     employer or to any affiliated person.
       (c) The reasonable cost to the employer of furnishing the 
     employee with board, lodging, or other facilities (including 
     housing) is the cost of operation and maintenance including 
     adequate depreciation plus a reasonable allowance (not more 
     than 5\1/2\ percent) for interest on the depreciated amount 
     of capital invested by the employer: Provided, That if the 
     total so computed is more than the fair rental value (or the 
     fair price of the commodities or facilities offered for 
     sale), the fair rental value (or the fair price of the 
     commodities or facilities offered for sale) shall be the 
     reasonable cost. The cost of operation and maintenance, the 
     rate of depreciation, and the depreciated amount of capital 
     invested by the employer shall be those arrived at under good 
     accounting practices. As used in this paragraph, the term 
     good accounting practices does not include accounting 
     practices which have been rejected by the Internal Revenue 
     Service for tax purposes, and the term depreciation includes 
     obsolescence.
       (d)(1) The cost of furnishing `facilities' found by the 
     Administrator to be primarily for the benefit or convenience 
     of the employer will not be recognized as reasonable and may 
     not therefore be included in computing wages.
       (2) The following is a list of facilities found by the 
     Administrator to be primarily for the benefit of convenience 
     of the employer. The list is intended to be illustrative 
     rather than exclusive: (i) Tools of the trade and other 
     materials and services incidental to carrying on the 
     employer's business; (ii) the cost of any construction by and 
     for the employer; (iii) the cost of uniforms and of their 
     laundering, where the nature of the business requires the 
     employee to wear a uniform.

     Sec. H531.6 Effects of collective bargaining agreements.

       (a) The cost of board, lodging, or other facilities shall 
     not be included as part of the wage paid to any employee to 
     the extent it is excluded therefrom under the terms of a bona 
     fide collective bargaining agreement applicable to the 
     particular employee.
       (b) A collective bargaining agreement shall be deemed to be 
     `bona fide' when pursuant to the provisions of section 
     7(b)(1) or 7(b)(2) of the FLSA it is made with the certified 
     representative of the employees under the provisions of the 
     CAA.


 PART H541--DEFINING AND DELIMITING THE TERMS ``BONA FIDE EXECUTIVE,'' 
    ``ADMINISTRATIVE,'' OR ``PROFESSIONAL'' CAPACITY (INCLUDING ANY 
EMPLOYEE EMPLOYED IN THE CAPACITY OF ACADEMIC ADMINISTRATIVE PERSONNEL 
                    OR TEACHER IN SECONDARY SCHOOL).

                    subpart a--general regulations.


 H541.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
H541.01 Application of the exemptions of section 13(a)(1) of the FLSA.
H541.1 Executive.
H541.2 Administrative.
H541.3 Professional.
H541.5b Equal pay provisions of section 6(d) of the FLSA as applied by 
              the CAA extend to executive, administrative, and 
              professional employees.


                    subpart a--general regulations.

     Sec. H541.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations
       541.1 Executive--H541.1.
       541.2 Administrative--H541.2.
       541.3 Professional--H541.3.
       541.5b Equal pay provisions of section 6(d) of the FLSA 
           apply to executive, administrative, and professional 
           employees--H541.5b.

     Sec. H541.01 Application of the exemptions of section 13 
       (a)(1) of the FLSA.

       (a) Section 13(a)(1) of the FLSA, which provides certain 
     exemptions for employees employed in a bona fide executive, 
     administrative, or professional capacity (including any 
     employee employed in the capacity of academic administrative 
     personnel or teacher in a secondary school), applies to 
     covered employees by virtue of Section 225(f)(1) of the CAA.
       (b) The substantive regulations set forth in this part are 
     promulgated under the authority of sections 203(c)and 304 of 
     the CAA, which require that such regulations be the same as 
     the substantive regulations promulgated by the Secretary of 
     Labor except where the Board determines for good cause shown 
     that modifications would be more effective for the 
     implementation of the rights and protections of covered 
     employees.

     Sec. H541.1 Executive.

       The term employee employed in a bona fide executive * * * 
     capacity in section 13(a) (1) of the FLSA as applied by the 
     CAA shall mean any employee: (a) Whose primary duty consists 
     of the management of an employing office in which he is 
     employed or of a customarily recognized department of 
     subdivision thereof; and
       (b) Who customarily and regularly directs the work of two 
     or more other employees therein; and
       (c) Who has the authority to hire or fire other employees 
     or whose suggestions and recommendations as to the hiring or 
     firing and as to the advancement and promotion or any other 
     change of status of other employees will be given particular 
     weight; and
       (d) Who customarily and regularly exercises discretionary 
     powers; and
       (e) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours of work 
     in the workweek to activities which are not directly and 
     closely related to the performance of the work described in 
     paragraphs (a) through (d) of this section: Provided, That 
     this paragraph shall not apply in the case of an employee who 
     is in sole charge of an independent establishment or a 
     physically separated branch establishment; and
       (f) Who is compensated for his services on a salary basis 
     at a rate of not less than $155 per week, exclusive of board, 
     lodging or other facilities: Provided, That an employee who 
     is compensated on a salary basis at a rate of not less than 
     $250 per week, exclusive of board, lodging or other 
     facilities, and whose primary duty consists of the management 
     of the employing office in which the employee is employed or 
     of a customarily recognized department or subdivision 
     thereof, and includes the customary and regular direction of 
     the work of two or more other employees therein, shall be 
     deemed to meet all the requirements of this section

     Sec. H541.2 Administrative.

       The term employee employed in a bona fide * * * 
     administrative * * * capacity in section 13(a)(1) of the FLSA 
     as applied by the CAA shall mean any employee:
       (a) Whose primary duty consists of either: (1) The 
     performance of office or nonmanual work directly related to 
     management policies or general operations of his employer or 
     his employer's customers, or (2) The performance of functions 
     in the administration of the Congressional Page School or of 
     a department or subdivision thereof, in work directly related 
     to the academic instruction or training carried on therein; 
     and
       (b) Who customarily and regularly exercises discretion and 
     independent judgment; and
       (c)(1) Who regularly and directly assists the head of an 
     employing office, or an employee employed in a bona fide 
     executive or administrative capacity (as such terms are 
     defined in the regulations of this subpart), or (2) Who 
     performs under only general supervision work along 
     specialized or technical lines requiring special training, 
     experience, or knowledge, or (3) Who executes under only 
     general supervision special assignments and tasks; and
       (d) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours worked in 
     the workweek to activities which are not directly and closely 
     related to the performance of the work described in 
     paragraphs (a) through (c) of this section; and
       (e)(1) Who is compensated for his services on a salary or 
     fee basis at a rate of not less than $155 per week, exclusive 
     of board, lodging or other facilities, or (2) Who, in the 
     case of academic administrative personnel, is compensated for 
     services as required by paragraph (e)(1) of this section, or 
     on a salary basis which is at least equal to the entrance 
     salary for teachers of the Congressional Page School: 
     Provided, That an employee who is compensated on a salary or 
     fee basis at a rate of not less than $250 per week, exclusive 
     of board, lodging or other facilities, and whose primary duty 
     consists of the performance of work described in paragraph 
     (a) of this section, which includes work requiring the 
     exercise of discretion and independent judgment, shall be 
     deemed to meet all the requirements of this section.

     Sec. H541.3 Professional.

       The term employee employed in a bona fide * * * 
     professional capacity in section 13(a)(1) of the FLSA as 
     applied by the CAA shall mean any employee:
       (a) Whose primary duty consists of the performance of: (1) 
     Work requiring knowledge of 

[[Page S 17616]]
     an advance type in a field of science or learning customarily acquired 
     by a prolonged course of specialized intellectual instruction 
     and study, as distinguished from a general academic education 
     and from an apprenticeship, and from training in the 
     performance of routine mental, manual, or physical processes, 
     or (2) Work that is original and creative in character in a 
     recognized field of artistic endeavor (as opposed to work 
     which can be produced by a person endowed with general manual 
     or intellectual ability and training), and the result of 
     which depends primarily on the invention, imagination, or 
     talent of the employee, or (3) Teaching, tutoring, 
     instructing, or lecturing in the activity of imparting 
     knowledge and who is employed and engaged in this activity as 
     a teacher in the Congressional Page School , or (4) Work that 
     requires theoretical and practical application of highly-
     specialized knowledge in computer systems analysis, 
     programming, and software engineering, and who is employed 
     and engaged in these activities as a computer systems 
     analyst, computer programmer, software engineer, or other 
     similarly skilled worker in the computer software field; and
       (b) Whose work requires the consistent exercise of 
     discretion and judgment in its performance; and
       (c) Whose work is predominantly intellectual and varied in 
     character (as opposed to routine mental, manual, mechanical, 
     or physical work) and is of such character that the output 
     produced or the result accomplished cannot be standardized in 
     relation to a given period of time; and
       (d) Who does not devote more than 20 percent of his hours 
     worked in the workweek to activities which are not an 
     essential part of and necessarily incident to the work 
     described in paragraphs (a) through (c) of this section; and
       (e) Who is compensated for services on a salary or fee 
     basis at a rate of not less than $170 per week, exclusive of 
     board, lodging or other facilities: Provided, That this 
     paragraph shall not apply in the case of an employee who is 
     the holder of a valid license or certificate permitting the 
     practice of law or medicine or any of their branches and who 
     is actually engaged in the practice thereof, nor in the case 
     of an employee who is the holder of the requisite academic 
     degree for the general practice of medicine and is engaged in 
     an internship or resident program pursuant to the practice of 
     medicine or any of its branches, nor in the case of an 
     employee employed and engaged as a teacher as provided in 
     paragraph (a)(3) of this section: Provided further, That an 
     employee who is compensated on a salary or fee basis at a 
     rate of not less than $250 per week, exclusive of board, 
     lodging or other facilities, and whose primary duty consists 
     of the performance either of work described in paragraph (a) 
     (1), (3), or (4) of this section, which includes work 
     requiring the consistent exercise of discretion and judgment, 
     or of work requiring invention, imagination, or talent in a 
     recognized field of artistic endeavor, shall be deemed to 
     meet all of the requirements of this section: Provided 
     further, That the salary or fee requirements of this 
     paragraph shall not apply to an employee engaged in computer- 
     related work within the scope of paragraph (a)(4) of this 
     section and who is compensated on an hourly basis at a rate 
     in excess of 6 1/2 times the minimum wage provided by section 
     6 of the FLSA as applied by the CAA.

     Sec. H541.5b Equal pay provisions of section 6(d) of the FLSA 
       as applied by the CAA extend to executive, administrative, 
       and professional employees.

       The FLSA, as amended and as applied by the CAA, includes 
     within the protection of the equal pay provisions those 
     employees exempt from the minimum wage and overtime pay 
     provisions as bona fide executive, administrative, and 
     professional employees (including any employee employed in 
     the capacity of academic administrative personnel or teacher 
     in elementary or secondary schools) under section 13(a)(1) of 
     the FLSA. Thus, for example, where an exempt administrative 
     employee and another employee of the employing office are 
     performing substantially ``equal work,'' the sex 
     discrimination prohibitions of section 6(d) are applicable 
     with respect to any wage differential between those two 
     employees.


   PART H547--REQUIREMENTS OF A ``BONA FIDE THRIFT OR SAVINGS PLAN.''

Sec.
H547.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
H547.0 Scope and effect of part.
H547.1 Essential requirements of qualifications.
H547.2 Disqualifying provisions.

     Sec. H547.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance (OC) Regulations under 
     Section 203 of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       547.0 Scope and effect of part--H547.0.
       547.1 Essential requirements of qualifications--H547.1.
       547.2 Disqualifying provisions--H547.2.

     Sec. H547.0 Scope and effect of part.

       (a) The regulations in this part set forth the requirements 
     of a ``bona fide thrift or savings plan'' under section 
     7(e)(3)(b) of the Fair Labor Standards Act of 1938, as 
     amended (FLSA), as applied by the CAA. In determining the 
     total remuneration for employment which section 7(e) of the 
     FLSA requires to be included in the regular rate at which an 
     employee is employed, it is not necessary to include any sums 
     paid to or on behalf of such employee, in recognition of 
     services performed by him during a given period, which are 
     paid pursuant to a bona fide thrift or savings plan meeting 
     the requirements set forth herein. In the formulation of 
     these regulations due regard has been given to the factors 
     and standards set forth in section 7(e)(3)(b) of the Act.
       (b) Where a thrift or savings plan is combined in a single 
     program (whether in one or more documents) with a plan or 
     trust for providing old age, retirement, life, accident or 
     health insurance or similar benefits for employees, 
     contributions made by the employer pursuant to such thrift or 
     savings plan may be excluded from the regular rate if the 
     plan meets the requirements of the regulation in this part 
     and the contributions made for the other purposes may be 
     excluded from the regular rate if they meet the tests set 
     forth in regulations.

     Sec. H547.1 Essential requirements for qualifications.

       (a) A ``bona fide thrift or savings plan'' for the purpose 
     of section 7(e)(3)(b) of the FLSA as applied by the CAA is 
     required to meet all the standards set forth in paragraphs 
     (b) through (f) of this section and must not contain the 
     disqualifying provisions set forth in Sec. H547.2.
       (b) The thrift or savings plan constitutes a definite 
     program or arrangement in writing, adopted by the employer or 
     by contract as a result of collective bargaining and 
     communicated or made available to the employees, which is 
     established and maintained, in good faith, for the purpose of 
     encouraging voluntary thrift or savings by employees by 
     providing an incentive to employees to accumulate regularly 
     and retain cash savings for a reasonable period of time or to 
     save through the regular purchase of public or private 
     securities.
       (c) The plan specifically shall set forth the category or 
     categories of employees participating and the basis of their 
     eligibility. Eligibility may not be based on such factors as 
     hours of work, production, or efficiency of the employees: 
     Provided, however, That hours of work may be used to 
     determine eligibility of part-time or casual employees.
       (d) The amount any employee may save under the plan shall 
     be specified in the plan or determined in accordance with a 
     definite formula specified in the plan, which formula may be 
     based on one or more factors such as the straight-time 
     earnings or total earnings, base rate of pay, or length of 
     service of the employee.
       (e) The employer's total contribution in any year may not 
     exceed 15 percent of the participating employees' total 
     earnings during that year. In addition, the employer's total 
     contribution in any year may not exceed the total amount 
     saved or invested by the participating employees during that 
     year: Provided, however, That a plan permitting a greater 
     contribution may be submitted to the Administrator and 
     approved by him as a `bona fide thrift or savings plan' 
     within the meaning of section 7(e)(3)(b) of the Act if: (1) 
     The plan meets all the other standards of this section; (2) 
     The plan contains none of the disqualifying factors 
     enumerated in Sec. H547.2; (3) The employer's contribution is 
     based to a substantial degree upon retention of savings; and 
     (4) The amount of the employer's contribution bears a 
     reasonable relationship to the amount of savings retained and 
     the period of retention.
       (f) The employer's contributions shall be apportioned among 
     the individual employees in accordance with a definite 
     formula or method of calculation specified in the plan, which 
     formula or method of calculation is based on the amount saved 
     or the length of time the individual employee retains his 
     savings or investment in the plan: Provided, That no 
     employee's share determined in accordance with the plan may 
     be diminished because of any other remuneration received by 
     him.

     Sec. H547.2 Disqualifying provisions.

       (a) No employee's participation in the plan shall be on 
     other than a voluntary basis.
       (b) No employee's wages or salary shall be dependent upon 
     or influenced by the existence of such thrift or savings plan 
     or the employer's contributions thereto.
       (c) The amounts any employee may save under the plan, or 
     the amounts paid by the employer under the plan may not be 
     based upon the employee's hours of work, production or 
     efficiency.


proposed regulations relating to the employing offices other than those 
             of the senate and the house of representatives

                          office of compliance

       The Congressional Accountability Act of 1995: Extension of 
     Rights and Protections Under the Fair Labor Standards Act of 
     1938 (Notices of Proposed Rulemaking with respect to Interns 
     and Irregular Work Schedules were issued on October 11. The 
     comment period closed on November 13. Final rules will be 
     issued separately pursuant to Section 304 of the CAA.)

                     Notice of proposed rulemaking

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed 

[[Page S 17617]]
     rules to implement section 203(c) of the Congressional Accountability 
     Act of 1995 (P.L. 104-1, Stat. 10) (``CAA''). The proposed 
     regulations, which are to be applied to the House of 
     Representatives and employees of the employing offices, and 
     their employees, of the Congress other than the Senate and 
     the House of Representatives, set forth the recommendations 
     of the Executive Director for Office of Compliance, as 
     approved by the Board of Directors, Office of Compliance.
       Dates: Comments are due within 30 days after publication of 
     this Notice in the Congressional Record.
       Addresses: Submit written comments to the Chair of the 
     Board of Directors, Office of Compliance, Room LA 200, 
     Library of Congress, Washington, D.C. 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, D.C., Monday through Friday, between the hours of 
     9:30 a.m. and 4:00 p.m.
       For further information contact: The 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) 224-
     2705.
       Supplementary information:

                             I. Background

                            A. Introduction

       The Congressional Accountability Act of 1995 (``CAA''), PL 
     104-1, was enacted into law on January 23, 1995. In general, 
     the CAA applies the rights and protections of eleven federal 
     labor and employment law statutes to covered employees and 
     employing offices within the legislative branch. Section 
     203(a) of the CAA applies the rights and protections of 
     subsections (a)(1) and (d) of section 6, section 7, and 
     section 12(c) of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 206 (a)(1) and (d), 207, 212(c) (``FLSA'') to covered 
     employees and employing offices. Section 203(c) of the CAA (2 
     U.S.C. Section 1313(c)) directs the Board of Directors of the 
     Office of Compliance established under the CAA to issue 
     regulations to implement the section. Section 203(c)(2) (2 
     U.S.C. Section 1313(c)(2)) further states that such 
     regulations, with the exception of certain irregular work 
     schedule regulations to be issued under section 203(a)(3), 
     ``shall be the same as substantive regulations issued by the 
     Secretary of Labor to implement the statutory provisions 
     referred to in subsection (a) 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.''

                B. Advance notice of proposed rulemaking

       On September 28, 1995, the Board of the Office of 
     Compliance issued an Advance Notice of Proposed Rulemaking 
     (``ANPRM'') soliciting comments from interested parties in 
     order to obtain participation and information early in the 
     rulemaking process. 141 Cong. R. S14542 (daily ed., Sept. 28, 
     1995). In addition to inviting comment on specific questions 
     arising under five of the statutes made applicable by the CAA 
     in the ANPRM, the Board and the statutory appointees of the 
     Office sought consultation with the Chair of the 
     Administrative Conference of the United States, the Secretary 
     of Labor and the Director of the Office of Personnel 
     Management with regard to the development of these 
     regulations in accordance with section 304(g) of the CAA. The 
     Office has also consulted with interested parties to further 
     its understanding of the need for and content of appropriate 
     regulations. Based on the information gleaned from these 
     consultations and the comments on the ANPRM, the Board of 
     Directors of the Office of Compliance is publishing these 
     proposed rules, pursuant to Section 203(c)(1) of the CAA (2 
     U.S.C. Section 1313(c)(1)).
     1. Modification of the regulations of the Department of Labor
       In the ANPRM, the Board asked the question, ``Whether and 
     to what extent should the Board modify the Secretary's 
     Regulations?'' The Board received 15 comments on the ANPRM: 
     two from Senators, four from House Members (one from the 
     leadership of the Committee with primary jurisdiction for the 
     CAA and one from three of the sponsors of the CAA), one from 
     the Secretary of the Senate and three from House offices (two 
     from institutional offices and one from a Member's Chief of 
     Staff), four from business coalitions or associations 
     representing an array of private employers, and one from a 
     labor organization.
       Those commenters who expressed views on the ANPRM cited 
     both the statute and the legislative history in taking the 
     position that the CAA presumes that the regulations of the 
     Department of Labor should not be modified. Illustrative 
     comments included the following:
       ``[Section 304 of the CAA] evidences clear legislative 
     intent that the Board apply these rights and protections to 
     Congressional employees in a manner comparable to and 
     consistent with the rights and protections applicable to 
     employees in the private sector under regulations adopted by 
     the Secretary (DOL). . . . The [CAA] requires that the 
     regulations issued by the Board be the same as those issued 
     by DOL unless the Board determines that modification would 
     more effectively implement the rights and protections of the 
     laws made applicable under the [CAA].''
       ``[I]f a law is right for the private sector, it is right 
     for Congress; . . . . Consistent with [this] principle, we 
     would urge the Office not to deviate (except in those few 
     areas where expressly authorized by the CAA) from applying 
     the laws in the same manner in which they are applied to the 
     private sector.

                           *   *   *   *   *

       [W]e have not identified any situations in which 
     modifications [of the DOL regulations] would be 
     appropriate.''
       ``There are no circumstances that justify `good cause' for 
     adopting regulations that deviate from those currently 
     applied to private sector employers.''
       ``[Section 203(c)(2)] confers on the Office of Compliance 
     only very limited authority to deviate from the present DOL 
     regulations. The legislative history to the `good cause' 
     exception likewise makes clear that this authority is to be 
     used by the Office of Compliance sparingly.''

                           *   *   *   *   *

        ``The legislative history of the CAA demands that the 
     Office of Compliance apply to Congress the same regulations 
     as those imposed on the private sector.''
        ``[W]e urge the Board to refrain from modifying 
     regulations promulgated by the Department of Labor and other 
     Executive agencies. Use of established regulations will 
     provide the Board, employees and employing offices with a 
     body of instructive case law and interpretive documents.''
        ``While the Office serves an important implementation and 
     enforcement role, it must not place itself in the position of 
     shielding Congress from substantive requirements imposed on 
     private businesses.''
       Based on the comments and the Board's understanding of the 
     law and the institutions to which it is being made 
     applicable, the Board is issuing the Secretary's regulations 
     with only these limited modifications: Technical changes in 
     the nomenclature and deletion of those sections clearly 
     inapplicable to the legislative branch.
      2. Notice Posting and Recordkeeping
        The ANPRM also invited comment on whether the 
     recordkeeping and notice posting requirements of the various 
     laws made applicable by the CAA are incorporated as statutory 
     requirements of the CAA. The ANPRM inquired whether, if such 
     requirements were not incorporated, could and should the 
     Board develop its own requirements pursuant to its ``good 
     cause'' authority. The ANPRM also invited comment on 
     proposing guidelines and models for recordkeeping and notice 
     posting.
        Commenters were in agreement that recordkeeping and notice 
     posting are important to the effective implementation of 
     several of the statutes incorporated in the CAA. However, 
     opinions as to whether the Board should require notice 
     posting and recordkeeping were widely divergent. Several 
     commenters expressed the view that the Board lacks the 
     statutory authority to adopt notice posting and recordkeeping 
     requirements and that the notice posting and recordkeeping 
     requirements of the FLSA do not apply to Congress. Other 
     commenters expressed the view that the Board has the 
     authority to issue regulations to impose recordkeeping and 
     notice posting requirements and that such regulations should 
     be, in substance, the same as those with which the private 
     sector must comply.
        The Board agrees with those commenters who took the 
     position that, if employing offices are to be treated the 
     same as private sector employers are treated under FLSA, they 
     should have to comply with the statute's notice posting and 
     recordkeeping requirements. Moreover, the Board notes that 
     notice posting and recordkeeping promote the full and 
     effective enforcement of these incorporated rights and 
     protections. In the Board's view, notice posting and 
     recordkeeping may well be in employers' interests both as a 
     sound personnel practice and in order to defend against 
     subsequent litigation.
        But while the CAA incorporates certain specific sections 
     of the FLSA, the CAA explicitly did not incorporate the 
     notice posting and recordkeeping requirements of Section 11, 
     29 U.S.C. Sec. 211 of the FLSA. Because the Board's authority 
     to modify the Secretary's regulations for ``good cause'' does 
     not authorize it to adopt regulatory requirements that are 
     the equivalent of statutory requirements that Congress has 
     omitted from the CAA, the Board has determined that it may 
     not impose such requirements on employing offices. However, 
     as various commenters suggest, the Board will provide 
     guidance to employing offices concerning model recordkeeping 
     practices as part of carrying out its program of education 
     under section 301(h)of the CAA (2 U.S.C. 1381(h)).
       The Board would also note that based upon their collective 
     years of experience representing employers and employees 
     with regard to various labor and employment laws, 
     including the FLSA, the absence of recordkeeping and 
     notice posting requirements may create a void which can 
     only partially be filled by the program of education to be 
     carried out by the Board pursuant to Section 

[[Page S 17618]]
     301(h)(1) and the optional notice which will be distributed by the 
     Board pursuant to Section 301(h)(2). The Board also would 
     emphasize that employees will in many circumstances be 
     able to establish a prima facie case simply by their own 
     testimony estimating the hours worked by the employees 
     where the employing office has failed to maintain 
     adequate, accurate records. An employing office may find 
     that its ability to respond to an employee's prima facie 
     case is substantially burdened by its failure to keep 
     accurate payroll and time-records. If Congress wishes to 
     experience the same burdens as faced by the private sector 
     and also to address these issues, it should enact 
     recordkeeping requirements comparable to those of the 
     FLSA. (Of course, like the regulations under those 
     statutes, such recordkeeping requirements may leave to the 
     discretion of each employing office the precise form and 
     manner in which records will be kept.) But, in light of 
     the text and structure of the CAA, the Board believes that 
     it is up to Congress to decide whether to do so.

                      II. The proposed regulations

                              A. Background

        Congress committed enforcement of the Fair Labor Standards 
     Act of 1938 to the Department of Labor and its Wage and Hour 
     Division, whose regulations and interpretations of that Act 
     comprise almost one thousand pages of Chapter V, Title 29 of 
     the Code of Federal Regulations. In enacting the CAA, 
     however, Congress expressly refused to commit enforcement to 
     the executive branch of the Federal government nor did 
     Congress bring its employing offices under the FLSA itself. 
     Instead, Congress carefully specified, through sectional 
     references to the FLSA, the substantive rights and 
     protections afforded to legislative employees, and precisely 
     mandated procedures by which those rights and protections 
     would be largely enforced by a new and independent office in 
     the legislative branch, the Office of Compliance. Further, in 
     granting the Board rulemaking authority with respect to the 
     FLSA in Section 203(c)(1) of the CAA, Congress affirmatively 
     commanded the Board to issue substantive regulations, with 
     the important directive that they ``shall be the same as 
     substantive regulations promulgated by the Secretary of Labor 
     * * * except as the Board may determine, for good cause shown 
     * * * that a modification of such regulations would be more 
     effective for the implementation of rights and protections 
     under'' the CAA.
        In the Board's view, and notwithstanding what has been 
     urged by some of the commenters, this unusual statutory 
     framework neither mandates nor allows an uncritical, 
     wholesale incorporation of all the regulations and 
     interpretive statements issued by the Labor Department under 
     the FLSA. Rather, this statutory framework requires the Board 
     to cull from the vast body of FLSA material found in the Code 
     of Regulations only those items that constitute ``substantive 
     regulations'' as the term is understood under settled 
     principles of administrative law. (See Batterton v. Francis, 
     422 U.S. 416, 425, n. 9 (1977)). Moreover, the statutory 
     framework authorizes the Board to delete those substantive 
     regulations that either have no application in the employing 
     offices of the Congress or that are not likely to be invoked. 
     For these reasons, the Board is not proposing their adoption, 
     unless public comments establish a justification to the 
     contrary. Finally, by limiting itself to substantive 
     regulations, the Board is not adopting those portions of 29 
     C.F.R. chapter V that constitute the interpretative bulletins 
     or statements of the Department of Labor and its Wage and 
     Hour Division.

                        B. Proposed regulations

      1. General provisions
        The proposed regulations include an initial Part 501 which 
     contains matters of general applicability including the 
     purpose and scope of the regulations, definitions, coverage, 
     and the administrative authority of the Board and the Office 
     of Compliance. In addition, a section explains the effect of 
     interpretative bulletins and statements of the Department of 
     Labor, and another section provides for the application of 
     the Portal to Portal Act. These latter sections are discussed 
     below.
        It is noted that the definition section incorporates the 
     general provisions of section 101 of the CAA which defines 
     ``employee,'' ``covered employee,'' ``employing office,'' and 
     ``employee of the House of Representatives.'' Section 203 of 
     the CAA, which applies the rights and protections of the 
     FLSA, also contemplates the promulgation of a definitional 
     regulation that excludes ``interns'' from the meaning of 
     ``covered employee.'' The Board, in a separate NPRM issued on 
     October 11, 1995, proposed such a regulation, together with a 
     regulation governing irregular work schedules and the receipt 
     of compensatory time in lieu of overtime compensation. The 
     Board is reviewing the public comments received in response 
     to that NPRM and will issue a separate final rule on those 
     issues.
        It should be noted that section 225(f)(1) of the CAA 
     provides that, except where inconsistent with definitions of 
     the CAA itself, the definitions in the laws made applicable 
     by the CAA shall also apply under the CAA. Thus, attention 
     must be paid to those definitions found in the FLSA that 
     are consistent with the CAA even if they are not expressly 
     incorporated in the proposed regulations. In this regard, 
     one commenter expressed concern over whether employing 
     offices would be obligated to pay minimum wages and 
     overtime compensation to individuals who do volunteer 
     work, in light of the fact that under the FLSA 
     ``employee'' may include certain volunteers. See 29 U.S.C. 
     Sec. 203(e)(4)(A), which excludes from the definition of 
     ``employee'' only certain volunteers who perform work for 
     a State, political subdivision, or interstate governmental 
     agency. Similarly, it is noted that, in enacting the CAA, 
     Congress did make separate provision for excluding 
     interns. Thus, the Board has concluded that, to the extent 
     that volunteer activity would bring an individual under 
     the coverage of the FLSA, similarly situated individuals 
     would be treated in the same manner under the CAA.
     2. Provisions derived from regulations of the Department of 
         Labor
       Those regulations of the Department of Labor that are being 
     adopted in substance include:
       Part 531, which governs the manner in which an employee's 
     wages are calculated taking into account the reasonable cost 
     to an employer of furnishing board, lodging, or other 
     facilities. This Part is derived from Section 3(m) of the 
     FLSA, which directs how the ``wage'' paid to an employee is 
     determined. Section 3(m) must be treated as applicable under 
     the CAA by virtue of Section 225(f)(1), which authorizes 
     generally the inclusion of those definitions and exemptions 
     that are consistent with definitions and exemptions of the 
     CAA. However, it is noted that section 3(m) is inconsistent 
     with the CAA insofar as the implementing regulations in Part 
     531, Title 29, C.F.R., provide procedures by which the Wage 
     and Hour Administrator makes determinations in specific cases 
     with respect to the furnishing of board, lodging, or other 
     facilities. Because the Administrator has no role in the 
     enforcement of the CAA by reason of Section 225(f)(3), and 
     because the Board is not at this time is not authorizing the 
     Office of Compliance to make such specific determinations, 
     the Board proposes to delete the provisions setting forth 
     those procedures. Similarly, the reference to ``tipped 
     employees'' and the method by which their wages are 
     determined are deleted because the applicable sections assign 
     responsibility to the Administrator.
       Part 541, which defines and delimits the bona fide 
     executive, administrative, and professional employees who are 
     exempt under Section 13(a) of the FLSA from the minimum wage 
     and maximum hours requirements. The Board has determined that 
     this exemption, commonly known as the ``white collar'' 
     exemption, is applicable to employing offices of Congress by 
     virtue of Section 225(f)(1) of the CAA.
       In the ANPRM, the Board solicited public comment on whether 
     and to what extent it should modify the Labor Department's 
     regulations regarding this exemption. Generally, the 
     commenters did not question the applicability of this 
     exemption to covered employees under the CAA, and several 
     commenters urged the adoption of all of the Department's 
     regulations in Part 541, 29 C.F.R., including the 
     interpretative bulletins, without any modification. Two 
     commenters contended that the Board's regulations should 
     grant a sweeping exemption for nearly all staff employees 
     working in elected members' offices because they exercise 
     independent judgment and discretion in performing their 
     responsibilities.
       Other commenters urged the Board to modify the Labor 
     Department regulations to take into account the unique job 
     responsibilities of staff working for an elected member 
     either in a personal office, in a leadership office or on 
     committee. Recognizing that job titles alone cannot be 
     dispositive of who is an exempt employee, these commenters 
     urged the Board to identify with particularity those job 
     duties which, if performed by an employee, would render him 
     or her an exempt executive, administrative, or professional 
     employee.
       The Board is proposing to adopt the Labor Department's 
     substantive regulations contained in Subpart A of Part 541 of 
     29 C.F.R. that set forth the fundamental criteria for 
     satisfying each of the three exemptions. But, for the reasons 
     explained below, the Board is not formally adopting the 
     interpretative bulletins contained in Subpart B of Part 541 
     of 29 C.F.R., which discuss and illustrate through examples 
     the Department's understanding of the exemption criteria.
       With respect to some commenters' request that the Board 
     modify the white collar exemptions, upon reflection, the 
     Board has reluctantly concluded that such a modification 
     would not satisfy the ``good cause'' requirement of Section 
     203(c)(2) of the CAA. The Board recognizes that the 
     Secretary's regulations and interpretations were promulgated 
     in a different era, with different employment paradigms in 
     mind. Thus, the Board appreciates the many difficulties that 
     employing offices will have in interpreting and reconciling 
     these regulations to present day realities. Moreover, the 
     Board is mindful of the significant impact the application of 
     the administrative, executive and professional exemption will 
     have on the structuring, functioning and expense of the 
     Members' and Senators' personal offices and committee 
     offices. However, the Board notes that private sector and 
     state and local government employers face the same 
     difficulties. And the Board has not found any sound, 
     principled basis for modifying the exemption 

[[Page S 17619]]
     regulation for Congress and its instrumentalities. That resolved, the 
     Board nonetheless wishes to make clear its intent to 
     provide, as time and resources permit, appropriate general 
     guidance to the Congress and its instrumentalities on how 
     to identify and justify which employees are exempt. Such 
     efforts made through the Office's education and 
     information programs, will attempt to assist employing 
     offices in determining which job duties will be considered 
     exempt under the executive, administration or professional 
     criteria.
       Part 547, which defines, pursuant to Section 7(e)(3)(b) the 
     standard that bona fide thrift or savings plans must meet in 
     order not to be included within an employee's regular rate of 
     pay for purposes of calculating overtime obligations under 
     Section 7 of the FLSA. This is included in light of Section 
     203(a)1) of the CAA, which specifically applied the rights 
     and protections of Section 7 of the FLSA.
       Part 570, which sets forth the limitations on the use of 
     child labor. This Part implements Section 12(c) of the FLSA, 
     prohibiting oppressive child labor, as defined by Section 
     3(l) of the same Act. The former section is specifically 
     referenced in Section 203(a)(1) of the CAA, while the latter 
     must be referenced by reason of Section 225(f)(1) of the CAA. 
     The inclusion of this Part in the separate regulations of the 
     Senate is necessitated by the fact that the Senate allows for 
     the appointment of congressional pages below the age of 16, 
     unlike the House of Representatives, which by law sets a 
     minimum age of 16 for such employees. For children under age 
     16, the FLSA regulations impose limitations on hours worked 
     during the school year. Part 570 is also included in the 
     separate regulations applicable to all other covered 
     employees and employing offices. Given the hazardous nature 
     of some of the activities of the support functions, such as 
     maintenance and repair, Part 570 regulations are being 
     proposed in the event that such instrumentalities employ 
     children under 18 years of age. It is noted that the Board 
     has not adopted regulations comparable to those set forth in 
     the Labor Department's Subpart B (29 C.F.R. Sections 570.5-
     .27), authorizing the issuance of certificates of age. In 
     addition, with respect to Section 570.52, governing the 
     hazardous occupation of motor-vehicle driver and outside 
     helper, the Board is not adopting the special exemption for 
     school bus driving because by its terms no employing offices 
     would satisfy the criteria of the regulation.

  C. Secretary of Labor's regulations that the Board proposes not to 
                                 adopt

       In reviewing the remaining parts of the Labor Department's 
     regulations, it is readily apparent that some have no 
     application to the employing offices within the legislative 
     branch. For this reason, the Board is not including them 
     within its substantive regulations. Among the excluded 
     regulations are: Part 510, which pertains to the application 
     of the minimum wage provisions to Puerto Rico; Part 511, 
     establishing a wage order procedure for American Samoa; Part 
     515, authorizing the utilization of State government agencies 
     for investigations and inspections; Part 530, governing the 
     employment of industrial homeworkers in certain industries; 
     Part 549, defining the requirements of a ``bona fide profit-
     sharing plan or trust;'' Part 550, defining the term ``talent 
     fees;'' Part 552, regulating the application of the FLSA to 
     domestic service; Part 575, addressing child labor in certain 
     agricultural employment; Parts 578, 579, and 580, 
     implementing the civil money penalties provisions of the 
     FLSA; and Part 679, dealing with industries in American 
     Samoa. Unless public comments suggest otherwise, the Board 
     intends including in the adopted regulations a provision 
     stating that the Board has issued regulations on all matters 
     for which the CAA requires a regulation. See Section 411 of 
     the CAA.
       Other substantive regulations could have application in the 
     event that an employing office wished to avail itself of 
     certain special wage rates, subminimum wage exemptions or 
     overtime exemptions under the FLSA. These are found in: Parts 
     519-528, which authorize subminimum wages for full-time 
     students, student-learners, apprentices, learners, 
     messengers, workers with disabilities, and student workers; 
     Part 548, which authorizes in the collective bargaining 
     context the establishment of basic wage rates for overtime 
     compensation purposes; and Part 551, which implements an 
     overtime exemption for local delivery drivers and helpers. 
     Unless public comments provide a sufficient justification to 
     the contrary the Board is not proposing the adoption of 
     regulations covering the foregoing subjects.

      III. The Interpretive Bulletins and other relevant guidance

       In addition to the substantive regulations found in 
     Subchapter A, the Department of Labor has issued, under 
     Subchapter B, ``Statements of General Policy or 
     Interpretations Not Directly Related to Regulations.'' 29 
     C.F.R Parts 775-794. Usually called Interpretive Bulletins, 
     these statements make available in one place the official 
     interpretations which guide the Secretary of Labor and the 
     Wage and Hour Administrator in the performance of their 
     duties. As the interpretations of an administering agency, 
     such statements are usually given some deference by the 
     courts. As the Supreme Court has observed:
        ``the rulings, interpretations and opinions of the 
     Administrator under this Act, while not controlling upon the 
     courts by reason of their authority, do constitute a body of 
     experience and informed judgment to which courts and 
     litigants may properly resort for guidance. The weight of 
     such a judgment in a particular case will depend upon the 
     thoroughness evident in the consideration, the validity of 
     its reasoning its consistency with earlier and later 
     pronouncements, and all those factors which give it power to 
     persuade, if lacking power to control.'' Skidmore v. Swift, 
     323 U.S. 134, 140 (1944).
       However, unlike ``substantive regulations,'' these 
     interpretations are not issued by the agency pursuant to its 
     statutory authority to implement the statute and, more 
     significantly, do not have the force and effect of law. See 
     Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). The 
     Board's mandate is only to issue substantive regulations that 
     are ``the same as the substantive regulations of the 
     Secretary of Labor to implement the statutory provision [of 
     the FLSA] applied'' by Section 204(a) of the CAA unless 
     modified for good cause (CAA Section 203 (c)(2)). Therefore, 
     the Board, does not propose to adopt the non-substantive 
     interpretations of the DOL and its Wage and Hour Division as 
     substantive regulations under the CAA. Moreover, the Board is 
     not proposing to issue the Department's interpretations as 
     its own interpretations of the FLSA rights and protections 
     made applicable under the CAA at this time. However, as 
     discussed below, employing offices should be advised that, 
     pursuant to the Portal to Portal Act, the Board will give due 
     consideration the Secretary's interpretations of the FLSA.
       Application of the Portal to Portal Act.--The Portal to 
     Portal Act, 61 Stat. 84 (1947), codified generally at 29 
     U.S.C. Sections 216 and 251, et seq. (``PPA''), contains 
     provisions which affect the rights and liabilities of 
     employees and employers with regard to alleged underpayment 
     of minimum or overtime wages under the FLSA. Section 4 of the 
     PPA excludes from the definition of hours worked both 
     activities preliminary to or postliminary to the worker's 
     principal activities and travel time absent a contract, 
     custom or practice to the contrary. 29 U.S.C. Section 254. 
     Sections 9 and 10 of the PPA provide the employer with a 
     defense against liability or punishment in any action or 
     proceeding brought against it for failure to comply with the 
     minimum wage and overtime provisions of the FLSA, where the 
     employer pleads and proves that the act or omission 
     complained of was in good faith in conformity with and in 
     reliance on any regulation, order, ruling, approval, 
     interpretation, administrative practice or enforcement policy 
     of the Wage and Hour Administrator of the Department of 
     Labor. 29 U.S.C. Sections 258-259. The PPA also contains 
     provisions which restrict and limit employee suits under 
     section 16(b) of the FLSA. For example, section 11 of the PPA 
     provides that in any action brought under section 216 of the 
     FLSA, the court may in its discretion, subject to prescribed 
     conditions, award no liquidated damages or award any amount 
     of such damages not to exceed the amount specified in section 
     16(b) of the FLSA. 29 U.S.C. Section 260.
       The Board has determined that the above provisions of the 
     PPA are incorporated into section 203 of the CAA, either as 
     an amendment to section 16(b) of the FLSA (which is expressly 
     applied to the legislative branch under section 203(b) of the 
     CAA), or by virtue of section 225(f) of the CAA, which 
     applies the definitions and exemptions of the FLSA to the 
     extent not inconsistent with the CAA. To that end, the Board 
     will give due consideration to the interpretations of the 
     FLSA of the Secretary of Labor. Moreover, employing offices 
     may utilize these interpretations in attempting to understand 
     the rights and protections under the FLSA that have been made 
     applicable by the CAA. Unless and until the Secretary's 
     interpretive statements are superseded or interpretative 
     guidance or decisions to the contrary are issued by the Board 
     or the courts, they may be relied upon for purposes of 
     defending against claims brought under the CAA to the same 
     extent as private sector employers may properly rely upon 
     them in actions brought under the FLSA.
       Joint employer doctrine.--The Board solicited comments in 
     the ANPRM on whether and to what extent the joint employment 
     doctrine as developed under the FLSA is applicable under the 
     CAA. The comments generally advocated adoption of the 
     doctrine to employing offices of the Congress. However, since 
     the issue of joint employment is addressed through a DOL 
     interpretive bulletin set forth in Part 791, 29 C.F.R., 
     rather than a substantive regulation, the Board is not 
     adopting it as such nor issuing it as its own interpretive 
     statement. See discussion at Section III.
       Equal Pay Act.--With respect to the Equal Pay Act (EPA), 
     which is included in Section 6(d) of the FLSA, 29 U.S.C. 
     Section 206(d), the Secretary of Labor promulgated 
     interpretative regulations that were originally included in 
     29 C.F.R. Part 800. Pursuant to the provisions of 
     Reorganization Plan No. 1 of 1978, as confirmed by the 
     Congress in Public Law 98-532, 98 Stat. 2705 (1984), 
     enforcement and administration of the EPA was transferred 
     from the Secretary of Labor to the Equal Employment 
     Opportunity Commission (EEOC). The EEOC promulgated its 
     own interpretations implementing the EPA at 29 C.F.R. Part 
     1620. Thereafter, the Secretary deleted its 
     interpretations. 52 FR 2517 (Jan. 

[[Page S 17620]]
     23, 1987). Thus, there are no substantive regulations implementing the 
     EPA. Under the rationale previously stated regarding the 
     Portal to Portal Act, the Board declines to incorporate 
     the EEOC interpretations as substantive regulations under 
     the CAA but will recognize them as is appropriate.
       Opinion Letters.--Commenters asked that the Board consider 
     establishing a process under which the Office or the Board 
     would issue opinion letters and upon which employing offices 
     could rely, similar to the procedure followed by the Wage and 
     Hour Administrator in sometimes providing such opinions at 
     the request of private sector employers. The Board 
     understands employing offices' desire for guidance and 
     clarity regarding their obligations under the CAA.
       To the extent that the Board itself can address issues 
     through regulations or interpretations, it will do so. 
     Moreover, the Office intends to provide appropriate education 
     and technical assistance as part of its education and 
     information responsibilities. But for the reasons stated 
     here, the Board and the Office's ability to do so is limited 
     by legal, resource and policy considerations. As is the case 
     in the private sector context, many issues under these 
     statutes can only be definitively resolved through case-by-
     case adjudication on particular facts. Moreover, except in 
     the context of statutes subject to the Portal to Portal Act, 
     it is doubtful that the Board or the Office has the statutory 
     authority to issue guidance with legal effect (outside of the 
     adjudicatory or rulemaking contexts); we are not aware of any 
     such legal authorization for Executive Branch agencies to do 
     so in the context of applying these same laws to the private 
     sector. Further, the resources of the Board and the Office 
     are limited: the first year appropriation is for $2.5 
     million. These resources are substantially less than those 
     available to analogous Executive Branch agencies that 
     administer fewer laws. Finally, public comment has not 
     provided the Board with the facts necessary for yet making 
     any of these determinations--and a detailed evidentiary 
     record is necessary for such judgment to be made. In short, 
     particularly in light of the various statutory 
     responsibilities of the Office and the Board, it is not 
     possible to give answers with legal effect to each individual 
     request for information and guidance. While the Board will 
     structure education and information programs to assist 
     employees and employing offices, it is forced to respond 
     that, like private employers, employing offices will 
     generally have to rely on their own counsel and human 
     resource advisors in determining their compliance with the 
     Congressional Accountability Act.

                         IV. Method of approval

       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolution; and (3) the version of the proposed 
     regulations that shall apply to other covered employees and 
     employing offices be approved by the Congress by concurrent 
     resolution.
       Signed at Washington, D.C., on this 21st day of November, 
     1995.
                                                    Glen D. Nager,
                         Chair of the Board, Office of Compliance.

 Subtitle C--Regulations Relating to the Employing Offices other than 
     Those of the Senate and the House of Representatives--C Series

 Chapter III--Regulations Relating to the Rights and Protections Under 
                  the Fair Labor Standards Act of 1938


                     part c501--general provisions

Sec.
C501.00  Coresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
C501.001  Purpose and scope.
C501.002  Definitions.
C501.003  Coverage.
C501.004  Administrative authority.
C501.005  Effect of Interpretations of the Labor Department.
C501.006  Application of the Portal-to-Portal Act of 1947.

     Sec. C501.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the parts of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding parts of 
     the Office of Compliance (CO) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       Part 531  Wage payments under the Fair Labor Standards Act 
     of 1938--Part C531.
       Part 541  Defining and delimiting the terms ``bona fide 
     executive,'' ``administrative,'' and ``professional'' 
     employees--Part C541.
       Part 547  Requirements of a ``Bona fide thrift or savings 
     plan''--Part C547.
       Part 570  Child labor--Part C570.


              subpart a--matters of general applicability

     Sec. C501.101 Purpose and scope.

       (a) Section 203 of the Congressional Accountability Act 
     (CAA) provides that the rights and protections of subsections 
     (a)(1) and (d) of section 6, section 7, and section 12(c) of 
     the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. 
     Sec. Sec. 206(a)(1) & (d), 207.212(c)) shall apply to covered 
     employees of the legislative branch of the Federal 
     government. Section 301 of the CAA creates the Office of 
     Compliance as an independent office in the legislative branch 
     for enforcing the rights and protections of the FLSE, as 
     applied by the CAA.
       (b) The FLSA as applied by the CAA provides for minimum 
     standards for both wages and overtime entitlements, and 
     delineates administrative procedures by which covered 
     worktime must be compensated. Included also in the FLSA are 
     provisions related to child labor, equal pay, and portal-to-
     portal activities. In addition, the FLSA exempts specified 
     employees or groups of employees from the application of 
     certain of its provisions.
       (c) This chapter contains the substantive regulations with 
     respect to the FLSA that the Board of Directors of the Office 
     of Compliance has adopted pursuant to Sections 203(c) and 304 
     of the CAA, which requires that the Board promulgate 
     regulations that are ``the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     Sec. 203 of the CAA] except insofar as the Board may 
     determine, for good cause shown . . . that a modification of 
     such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section.''

     Sec. C501.102 Definitions.

       For purposes of this chapter.
       (c) CAA means the Congressional Accountability Act of 1995 
     (P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
       (b) FLSA or Act means the Fair Labor Standards Act of 1938, 
     as amended (29 U.S.C. Sec. 201 et seq.).
       (c) Covered employee means any employee, including an 
     applicant for employment and a former employee, of the (1) 
     the Capitol Guide Service; (2) the Capitol Police; (3) the 
     Congressional Budget Office; (4) the Office of the Architect 
     of the Capitol; (5) the Office of the Attending Physician; 
     (6) the Office of Compliance; or (7) the Office of Technology 
     Assessment.
       (d) (1) Employee of the Office of the Architect of the 
     Capitol includes any employee of the Architect of the 
     Capitol, the Botanic Garden, or the Senate Restaurants;(2) 
     Employee of the Capitol Police includes any member or officer 
     of the Capitol Police.
       (e) Employing office and employer mean (1) the Capitol 
     Guide Service; (2) the Capitol Police; (3) the Congressional 
     Budget Office; (4) the Office of the Architect of the 
     Capitol; (5) the Office of the Attending Physician; (6) the 
     Office of Compliance; or (7) the Office of Technology 
     Assessment.
       (f) Board means the Board of Directors of the Office of 
     Compliance.
       (g) Office means the Office of Compliance.

     Sec. C501.103 Coverage.

       The coverage of Section 203 of the CAA extends to any 
     covered employee of an employing office without regard to 
     whether the covered employee is engaged in commerce or the 
     production of goods for interstate commerce and without 
     regard to size, number of employees, amount of business 
     transacted, or other measure.

     Sec. C501.104 Administrative authority.

       (a) The Office of Compliance is authorized to administer 
     the provisions of Section 203 of the Act with respect to any 
     covered employee or covered employer.
       (b) The Board is authorized to promulgate substantive 
     regulations in accordance with the provisions of Sections 
     203(c) and 304 of the CAA.
       (c) The Board may in its discretion from time to time issue 
     interpretative statements providing guidance to employees and 
     to employing offices on the rights and protections 
     established under the FLSA that are made applicable by 
     Sections 203(a) and 225 of the CAA.

     Sec. C501.105 Effect of interpretations of the Department of 
       Labor.

       (a) In administering the FLSA, the Wage and Hour Division 
     of the Department of Labor has issued not only substantive 
     regulations but also interpretative bulletins. Substantive 
     regulations represent an exercise of statutorily-delegated 
     lawmaking authority from the legislative branch to an 
     administrative agency. Generally, they are proposed in 
     accordance with the notice-and-comment procedures of the 
     Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. Once 
     promulgated, such regulations are considered to have the 
     force and effect of law, unless set aside upon judicial 
     review as arbitrary, capricious, an abuse of discretion, or 
     otherwise not in accordance with law. See Batterton v. 
     Francis, 432 U.S. 416, 425 n.9 (1977). See also 29 C.F.R. 
     Sec. 790.17(b) (1994). Unlike substantive regulations, 
     interpretative statements, including bulletins and other 
     releases of the Wage and Hour Division, are not issued 
     pursuant to the provisions of the APA and may not have the 
     force and effect of law. Rather, they may only constitute 
     official interpretations of the Department of Labor with 
     respect to the meaning and application of the minimum wage, 
     maximum hour, and overtime pay requirements of the 

[[Page S 17621]]
     FLSA. See 29 C.F.R. Sec. 790.17(c) (citing Final Report of the Attorney 
     General's Committee on Administrative Procedure, Senate 
     Document No.8, 77th Cong., 1st Sess., at p. 27 (1941)). The 
     purpose of such statements is to make available in one place 
     the interpretations of the FLSA which will guide the 
     Secretary of Labor and the Wage and Hour Administrator in the 
     performance of their duties unless and until they are 
     otherwise directed by authoritative decisions of the courts 
     or conclude, upon reexamination of an interpretation, that it 
     is incorrect. The Supreme Court has observed: ``[T]he 
     rulings, interpretations and opinions of the Administrator 
     under this Act, while not controlling upon the courts by 
     reason of their authority, do constitute a body of experience 
     and informed judgment to which courts and litigants may 
     properly resort for guidance. The weight of such a judgment 
     in a particular case will depend upon the thoroughness 
     evident in the consideration, the validity of its reasoning, 
     its consistency with earlier and later pronouncements, and 
     all those factors which give it power to persuade, if lacking 
     power to control.'' Skidmore v. Swift, 323 U.S. 134, 140 
     (1944).
       (b) Section 203(c) of the CAA provides that the substantive 
     regulations implementing Section 203 of the CAA shall be 
     ``the same as substantive regulations promulgated by the 
     Secretary of Labor'' except where the Board finds, for good 
     cause shown, that a modification would more effectively 
     implement the rights and protections established by the FLSA. 
     Thus, the CAA by its terms does not mandate that the Board 
     adopt the interpretative statements of the Department of 
     Labor or its Wage and Hour Division. The Board is thus not 
     adopting such statements as part of its substantive 
     regulations.

     Sec. C501.106 Application of the Portal-to-Portal Act of 
       1947.

       (a) Consistent with Section 225 of the CAA, the Portal to 
     Portal Act (PPA), 29 U.S.C. Sec. Sec. 216 and 251 et seq., is 
     applicable in defining and delimiting the rights and 
     protections of the FLSA that are prescribed by the CAA. 
     Section 10 of the PPA, 29 U.S.C. Sec. 259, provides in 
     pertinent part:
       [N]o 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, . . . if he pleads 
     and proves that the act or omission complained of was in good 
     faith in conformity with and reliance on any written 
     administrative regulation, order, ruling, approval or 
     interpretation of [the Administrator of the Wage and Hour 
     Division of the Department of Labor] . . . 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) In defending any action or proceeding based on any act 
     or omission arising out of section 203 of the CAA, an 
     employing office may satisfy the standards set forth in 
     subsection (a) by pleading and proving good faith reliance 
     upon:
       (1) Any written administrative regulation, order, decision, 
     ruling, approval or interpretation, or any administrative 
     practice or enforcement policy, of the Board.
       (2) Any written administrative regulation, order, ruling, 
     approval or interpretation, of the Administrator of the Wage 
     and Hour Division of the Department of Labor: Provided, that 
     such regulation, order, ruling approval or interpretation had 
     not been superseded at the time of reliance by any 
     regulation, order, decision, ruling, approval or 
     interpretation, or any administrative practice or enforcement 
     policy, of the Board or the courts.


  part h531--wage payments under the fair labor standards act of 1938

                     subpart a--preliminary matters

Sec.
C531.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
C531.1  Definitions.
C531.2  Purpose and scope.


  subpart b--determinations of ``reasonable cost and ``fair value''; 
              effects of collective bargaining agreements

       C531.3  General determinations of 'reasonable cost'.
       C531.6  Effects of collective bargaining agreements.


                    subpart a--preliminary matters.

     Sec. C531.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       531.1  Definitions--C531.1.
       531.2  Purpose and scope--C531.2.
       531.3  General determinations of ``reasonable cost''--
     C531.3.
       531.6  Effects of collective bargaining agreements--C531.6.

     Sec. C531.1 Definitions.

       (a) Administrator means the Administrator of the Wage and 
     Hour Division or his authorized representative. The Secretary 
     of Labor has delegated to the Administrator the functions 
     vested in him under section 3(m) of the Act.
       (b) Act means the Fair Labor Standards Act of 1938, as 
     amended.

     Sec. C531.2 Purpose and scope.

       (a) Section 3(m) of the Act defines the term 'wage' to 
     include the 'reasonable cost', as determined by the Secretary 
     of Labor, to an employer of furnishing any employee with 
     board, lodging, or other facilities, if such board, lodging, 
     or other facilities are customarily furnished by the employer 
     to his employees. In addition, section 3(m) gives the 
     Secretary authority to determine the 'fair value.' of such 
     facilities on the basis of average cost to the employer or to 
     groups of employers similarly situated, on average value to 
     groups of employees, or other appropriate measures of 'fair 
     value.' Whenever so determined and when applicable and 
     pertinent, the 'fair value' of the facilities involved shall 
     be includable as part of 'wages' instead of the actual 
     measure of the costs of those facilities. The section 
     provides, however, that the cost of board, lodging, or other 
     facilities shall not be included as part of 'wages' if 
     excluded therefrom by a bona fide collective bargaining 
     agreement. Section 3(m) also provides a method for 
     determining the wage of a tipped employee.
       (b) This part 531 contains any determinations made as to 
     the 'reasonable cost' and 'fair value' of board, lodging, or 
     other facilities having general application.


 subpart b--determinations of ``reasonable cost'' and ``fair value''; 
              effects of collective bargaining agreements

     Sec. C531.3 General determinations of 'reasonable cost.'

       (a) The term reasonable cost as used in section 3(m) of the 
     Act is hereby determined to be not more than the actual cost 
     to the employer of the board, lodging, or other facilities 
     customarily furnished by him to his employees.
       (b) Reasonable cost does not include a profit to the 
     employer or to any affiliated person.
       (c) The reasonable cost to the employer of furnishing the 
     employee with board, lodging, or other facilities (including 
     housing) is the cost of operation and maintenance including 
     adequate depreciation plus a reasonable allowance (not more 
     than 5 1/2 percent) for interest on the depreciated amount of 
     capital invested by the employer: Provided, That if the total 
     so computed is more than the fair rental value (or the fair 
     price of the commodities or facilities offered for sale), the 
     fair rental value (or the fair price of the commodities or 
     facilities offered for sale) shall be the reasonable cost. 
     The cost of operation and maintenance, the rate of 
     depreciation, and the depreciated amount of capital invested 
     by the employer shall be those arrived at under good 
     accounting practices. As used in this paragraph, the term 
     good accounting practices does not include accounting 
     practices which have been rejected by the Internal Revenue 
     Service for tax purposes, and the term depreciation includes 
     obsolescence.
       (d)(1) The cost of furnishing 'facilities' found by the 
     Administrator to be primarily for the benefit or convenience 
     of the employer will not be recognized as reasonable and may 
     not therefore be included in computing wages.
       (2) The following is a list of facilities found by the 
     Administrator to be primarily for the benefit of convenience 
     of the employer. The list is intended to be illustrative 
     rather than exclusive: (i) Tools of the trade and other 
     materials and services incidental to carrying on the 
     employer's business; (ii) the cost of any construction by and 
     for the employer; (iii) the cost of uniforms and of their 
     laundering, where the nature of the business requires the 
     employee to wear a uniform.

     Sec. C531.6 Effects of collective bargaining agreements.

       (a) The cost of board, lodging, or other facilities shall 
     not be included as part of the wage paid to any employee to 
     the extent it is excluded therefrom under the terms of a bona 
     fide collective bargaining agreement applicable to the 
     particular employee.
       (b) A collective bargaining agreement shall be deemed to be 
     `bona fide' when pursuant to the provisions of section 
     7(b)(1) or 7(b)(2) of the FLSA it is made with the certified 
     representative of the employees under the provisions of the 
     CAA.

[[Page S 17622]]



 part c541--defining and delimiting the terms ``bona fide executive,'' 
    ``administrative,'' or ``professional'' capacity (including any 
employee employed in the capacity of academic administrative personnel 
                    or teacher in secondary school)

                     subpart a--general regulations

       Sec.
       C541.00  Corresponding section table of the FLSA 
           regulations of the Labor Department and the CAA 
           regulations of the Office of Compliance.
       C541.01  Application of the exemptions of section 13(a)(1) 
           of the FLSA.
       C541.1  Executive.
       C541.2  Administrative.
       C541.3  Professional.
       C541.5b  Equal pay provisions of section 6(d) of the FLSA 
           as applied by the CAA extend to executive, 
           administrative, and professional employees.


                     subpart a--general regulations

     Sec. C541.00  Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under Section 203 
     of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       541.1  Executive--C541.1.
       541.2  Administrative--C541.2.
       541.3  Professional--C541.3.
       541.5b  Equal pay provisions of section 6(d) of the FLSA 
     apply to executive, administrative, and professional 
     employees--C541.5b.

     Sec. C541.01  Application of the exemptions of section 13 
       (a)(1) of the FLSA.

       (a) Section 13(a)(1) of the FLSA, which provides certain 
     exemptions for employees employed in a bona fide executive, 
     administrative, or professional capacity (including any 
     employee employed in the capacity of academic administrative 
     personnel or teacher in a secondary school), applies to 
     covered employees by virtue of Section 225(f)(1) of the CAA.
       (b) The substantive regulations set forth in this part are 
     promulgated under the authority of sections 203(c)and 304 of 
     the CAA, which require that such regulations be the same as 
     the substantive regulations promulgated by the Secretary of 
     Labor except where the Board determines for good cause shown 
     that modifications would be more effective for the 
     implementation of the rights and protections of covered 
     employees.

     Sec. C541.1 Executive.

       The term employee employed in a bona fide executive * * * 
     capacity in section 13(a) (1) of the FLSA as applied by the 
     CAA shall mean any employee:
       (a) Whose primary duty consists of the management of an 
     employing office in which he is employed or of a customarily 
     recognized department of subdivision thereof; and
       (b) Who customarily and regularly directs the work of two 
     or more other employees therein; and
       (c) Who has the authority to hire or fire other employees 
     or whose suggestions and recommendations as to the hiring or 
     firing and as to the advancement and promotion or any other 
     change of status of other employees will be given particular 
     weight; and
       (d) Who customarily and regularly exercises discretionary 
     powers; and
       (e) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours of work 
     in the workweek to activities which are not directly and 
     closely related to the performance of the work described in 
     paragraphs (a) through (d) of this section: Provided, That 
     this paragraph shall not apply in the case of an employee who 
     is in sole charge of an independent establishment or a 
     physically separated branch establishment; and
       (f) Who is compensated for his services on a salary basis 
     at a rate of not less than $155 per week, exclusive of board, 
     lodging or other facilities: Provided, That an employee who 
     is compensated on a salary basis at a rate of not less than 
     $250 per week, exclusive of board, lodging or other 
     facilities, and whose primary duty consists of the management 
     of the employing office in which the employee is employed or 
     of a customarily recognized department or subdivision 
     thereof, and includes the customary and regular direction of 
     the work of two or more other employees therein, shall be 
     deemed to meet all the requirements of this section.

     Sec. C541.2 Administrative.

       The term employee employed in a bona fide * * * 
     administrative ** * capacity in section 13(a)(1) of the FLSA 
     as applied by the CAA shall mean any employee:
       (a) Whose primary duty consists of either:
       (1) The performance of office or nonmanual work directly 
     related to management policies or general operations of his 
     employer or his employer's customers, or
       (2) The performance of functions in the administration of 
     the Congressional Page School or of a department or 
     subdivision thereof, in work directly related to the academic 
     instruction or training carried on therein; and
       (b) Who customarily and regularly exercises discretion and 
     independent judgment; and
       (c)(1) Who regularly and directly assists the head of an 
     employing office, or anemployee employed in a bona fide 
     executive or administrative capacity (as such terms are 
     defined in the regulations of this subpart), or
       (2) Who performs under only general supervision work along 
     specialized or technical lines requiring special training, 
     experience, or knowledge, or
       (3) Who executes under only general supervision special 
     assignments and tasks; and
       (d) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours worked in 
     the workweek to activities which are not directly and closely 
     related to the performance of the work described in 
     paragraphs (a) through (c) of this section; and
       (e)(1) Who is compensated for his services on a salary or 
     fee basis at a rate of not less than $155 per week, exclusive 
     of board, lodging or other facilities, or
       (2) Who, in the case of academic administrative personnel, 
     is compensated for services as required by paragraph (e)(1) 
     of this section, or on a salary basis which is at least equal 
     to the entrance salary for teachers of the Congressional Page 
     School: Provided, That an employee who is compensated on a 
     salary or fee basis at a rate of not less than $250 per week, 
     exclusive of board, lodging or other facilities, and whose 
     primary duty consists of the performance of work described in 
     paragraph (a) of this section, which includes work requiring 
     the exercise of discretion and independent judgment, shall be 
     deemed to meet all the requirements of this section.

     Sec. C541.3 Professional.

       The term employee employed in a bona fide * * * 
     professional capacity in section 13(a)(1) of the FLSA as 
     applied by the CAA shall mean any employee:
       (a) Whose primary duty consists of the performance of:
       (1) Work requiring knowledge of an advance type in a field 
     of science or learning customarily acquired by a prolonged 
     course of specialized intellectual instruction and study, as 
     distinguished from a general academic education and from an 
     apprenticeship, and from training in the performance of 
     routine mental, manual, or physical processes, or
       (2) Work that is original and creative in character in a 
     recognized field of artistic endeavor (as opposed to work 
     which can be produced by a person endowed with general manual 
     or intellectual ability and training), and the result of 
     which depends primarily on the invention, imagination, or 
     talent of the employee, or
       (3) Teaching, tutoring, instructing, or lecturing in the 
     activity of imparting knowledge and who is employed and 
     engaged in this activity as a teacher in the Congressional 
     Page School , or
       (4) Work that requires theoretical and practical 
     application of highly-specialized knowledge in computer 
     systems analysis, programming, and software engineering, and 
     who is employed and engaged in these activities as a computer 
     systems analyst, computer programmer, software engineer, or 
     other similarly skilled worker in the computer software 
     field; and
       (b) Whose work requires the consistent exercise of 
     discretion and judgment in its performance; and
       (c) Whose work is predominantly intellectual and varied in 
     character (as opposed to routine mental, manual, mechanical, 
     or physical work) and is of such character that the output 
     produced or the result accomplished cannot be standardized in 
     relation to a given period of time; and
       (d) Who does not devote more than 20 percent of his hours 
     worked in the workweek to activities which are not an 
     essential part of and necessarily incident to the work 
     described in paragraphs (a) through (c) of this section; and
       (e) Who is compensated for services on a salary or fee 
     basis at a rate of not less than $170 per week, exclusive of 
     board, lodging or other facilities: Provided, That this 
     paragraph shall not apply in the case of an employee who is 
     the holder of a valid license or certificate permitting the 
     practice of law or medicine or any of their branches and who 
     is actually engaged in the practice thereof, nor in the case 
     of an employee who is the holder of the requisite academic 
     degree for the general practice of medicine and is engaged in 
     an internship or resident program pursuant to the practice of 
     medicine or any of its branches, nor in the case of an 
     employee employed and engaged as a teacher as provided in 
     paragraph (a)(3) of this section: Provided further, That an 
     employee who is compensated on a salary or fee basis at a 
     rate of not less than $250 per week, exclusive of board, 
     lodging or other facilities, and whose primary duty consists 
     of the performance either of work described in paragraph (a) 
     (1), (3), or (4) of this section, which includes work 
     requiring the consistent exercise of discretion and judgment, 
     or of work requiring invention, imagination, or talent in a 
     recognized field of artistic endeavor, shall be deemed to 
     meet all of the requirements of this section: Provided 
     further, That the salary or fee requirements of this 
     paragraph shall not apply to an employee engaged in computer-
     related work within the scope of paragraph (a)(4) of this 
     section and who is compensated on an hourly basis at a rate 
     in excess of 6 1/2 times the minimum wage provided by section 
     6 of the FLSA as applied by the CAA.

[[Page S 17623]]


     Sec. C541.5b Equal pay provisions of section 6(d) of the FLSA 
       as applied by the CAA extend to executive, administrative, 
       and professional employees.

       The FLSA, as amended and as applied by the CAA, includes 
     within the protection of the equal pay provisions those 
     employees exempt from the minimum wage and overtime pay 
     provisions as bona fide executive, administrative, and 
     professional employees (including any employee employed in 
     the capacity of academic administrative personnel or teacher 
     in elementary or secondary schools) under section 13(a)(1) of 
     the FLSA. Thus, for example, where an exempt administrative 
     employee and another employee of the employing office are 
     performing substantially ``equal work,'' the sex 
     discrimination prohibitions of section 6(d) are applicable 
     with respect to any wage differential between those two 
     employees.


   PART C547--REQUIREMENTS OF A ``BONA FIDE THRIFT OR SAVINGS PLAN''

Sec.
C547.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
C547.0  Scope and effect of part.
C547.1  Essential requirements of qualifications.
C547.2  Disqualifying provisions.

     Sec. C547.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance (OC) Regulations under 
     Section 203 of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       547.0  Scope and effect of part--C547.0
       547.1  Essential requirements of qualifications--C547.1
       547.2  Disqualifying provisions--C547.2.

     Sec. C547.0 Scope and effect of part.

       (a) The regulations in this part set forth the requirements 
     of a ``bona fide thrift or savings plan'' under section 
     7(e)(3)(b) of the Fair Labor Standards Act of 1938, as 
     amended (FLSA), as applied by the CAA. In determining the 
     total remuneration for employment which section 7(e) of the 
     FLSA requires to be included in the regular rate at which an 
     employee is employed, it is not necessary to include any sums 
     paid to or on behalf of such employee, in recognition of 
     services performed by him during a given period, which are 
     paid pursuant to a bona fide thrift or savings plan meeting 
     the requirements set forth herein. In the formulation of 
     these regulations due regard has been given to the factors 
     and standards set forth in section 7(e)(3)(b) of the Act.
       (b) Where a thrift or savings plan is combined in a single 
     program (whether in one or more documents) with a plan or 
     trust for providing old age, retirement, life, accident or 
     health insurance or similar benefits for employees, 
     contributions made by the employer pursuant to such thrift or 
     savings plan may be excluded from the regular rate if the 
     plan meets the requirements of the regulation in this part 
     and the contributions made for the other purposes may be 
     excluded from the regular rate if they meet the tests set 
     forth in regulations.

     Sec. C547.1 Essential requirements for qualifications.

       (a) A ``bona fide thrift or savings plan'' for the purpose 
     of section 7(e)(3)(b) of the FLSA as applied by the CAA is 
     required to meet all the standards set forth in paragraphs 
     (b) through (f) of this section and must not contain the 
     disqualifying provisions set forth in Sec.  547.2.
       (b) The thrift or savings plan constitutes a definite 
     program or arrangement in writing, adopted by the employer or 
     by contract as a result of collective bargaining and 
     communicated or made available to the employees, which is 
     established and maintained, in good faith, for the purpose of 
     encouraging voluntary thrift or savings by employees by 
     providing an incentive to employees to accumulate regularly 
     and retain cash savings for a reasonable period of time or to 
     save through the regular purchase of public or private 
     securities.
       (c) The plan specifically shall set forth the category or 
     categories of employees participating and the basis of their 
     eligibility. Eligibility may not be based on such factors as 
     hours of work, production, or efficiency of the employees: 
     Provided, however, That hours of work may be used to 
     determine eligibility of part-time or casual employees.
       (d) The amount any employee may save under the plan shall 
     be specified in the plan or determined in accordance with a 
     definite formula specified in the plan, which formula may be 
     based on one or more factors such as the straight-time 
     earnings or total earnings, base rate of pay, or length of 
     service of the employee.
       (e) The employer's total contribution in any year may not 
     exceed 15 percent of the participating employees' total 
     earnings during that year. In addition, the employer's total 
     contribution in any year may not exceed the total amount 
     saved or invested by the participating employees during that 
     year: Provided, however, That a plan permitting a greater 
     contribution may be submitted to the Administrator and 
     approved by him as a ``bona fide thrift or savings plan'' 
     within the meaning of section 7(e)(3)(b) of the Act if:
       (1) The plan meets all the other standards of this section;
       (2) The plan contains none of the disqualifying factors 
     enumerated in Sec. C547.2;
       (3) The employer's contribution is based to a substantial 
     degree upon retention of savings; and
       (4) The amount of the employer's contribution bears a 
     reasonable relationship to the amount of savings retained and 
     the period of retention.
       (f) The employer's contributions shall be apportioned among 
     the individual employees in accordance with a definite 
     formula or method of calculation specified in the plan, which 
     formula or method of calculation is based on the amount saved 
     or the length of time the individual employee retains his 
     savings or investment in the plan: Provided, That no 
     employee's share determined in accordance with the plan may 
     be diminished because of any other remuneration received by 
     him.

     Sec. C547.2 Disqualifying provisions.

       (a) No employee's participation in the plan shall be on 
     other than a voluntary basis.
       (b) No employee's wages or salary shall be dependent upon 
     or influenced by the existence of such thrift or savings plan 
     or the employer's contributions thereto.
       (c) The amounts any employee may save under the plan, or 
     the amounts paid by the employer under the plan may not be 
     based upon the employee's hours of work, production or 
     efficiency.


                   PART C570--CHILD LABOR REGULATIONS

                           SUBPART A--GENERAL

Sec.
C570.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
C570.1  Definitions.
C570.2  Minimum age standards.


 Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child 
                             Labor Reg. 3)

C570.31  Determination.
C570.32  Effect of this subpart.
C570.33  Occupations.
C570.35  Periods and conditions of employment.


  Subpart E--Occupations Particularly Hazardous for the Employment of 
Minors Between 16 and 18 Years of Age or Detrimental to Their Health or 
                               Well-Being

C570.50  General.
C570.51  Occupations in or about plants or establishments manufacturing 
              or storing explosives or articles containing explosive 
              components (Order 1).
C570.52  Occupations of motor-vehicle driver and outside helper (Order 
              2).
C570.55  Occupations involved in the operation of power-driven 
              woodworking machines (Order 5).
C570.58  Occupations involved in the operation of power-driven hoisting 
              apparatus (Order 7).
C570.59  Occupations involved in the operations of power-driven metal 
              forming, punching, and shearing machines (Order 8).
C570.62  Occupations involved in the operation of bakery machines 
              (Order 11).
C570.63  Occupations involved in the operation of paper-products 
              machines (Order 12).
C570.65  Occupations involved in the operations of circular saws, band 
              saws, and guillotine shears (Order 14).
C570.66  Occupations involved in wrecking and demolition operations 
              (Order 15).
C570.67  Occupations in roofing operations (Order 16).
C570.68  Occupations in excavation operations (Order 17).


                           Subpart A--General

     Sec. C570.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance Regulations under 
     Section 202 of the CAA:
       Secretary of Labor Regulations--OC Regulations.
       570.1  Definitions--C570.1.
       570.2  Minimum age standards--C570.2.
       570.31  Determinations--C570.31.
       570.32  Effect of this subpart--C570.32.
       570.33  Occupations--C570.33.
       570.35  Periods and conditions of employment--C570.35.
       570.50  General--C570.50.
       570.51  Occupations in or about plants or establishments 
     manufacturing or storing explosives or articles containing 
     explosive components (Order 1)--C570.51.
       570.52  Occupations of motor-vehicle driver and outside 
     helper (Order 2)--C570.52.
       570.55  Occupations involved in the operation of power-
     driven woodworking machines (Order 5)--C570.55.
       570.58  Occupations involved in the operation of power-
     driven hoisting apparatus (Order 7)--C570.58.
       570.59  Occupations involved in the operations of power-
     driven metal forming, 

[[Page S 17624]]
     punching, and shearing machines (Order 8)--C570.59
       570.62  Occupations involved in the operation of bakery 
     machines (Order 11)--C570.62
       570.63  Occupations involved in the operation of paper-
     products machines (Order 12)--C570.63.
       570.65  Occupations involved in the operations of circular 
     saws, band saws, and guillotine shears (Order 14)--C570.65.
       570.66  Occupations involved in wrecking and demolition 
     operations (Order 15)--C570.66.
       570.67  Occupations in roofing operations (Order 16)--
     C570.67.
       570.68  Occupations in excavation operations (Order 17)--
     C570.68.

     Sec. C570.1 Definitions.

       As used in this part:
       (a) Act means the Fair Labor Standards Act of 1938, as 
     amended (52 Stat. 1060, as amended; 29 U.S.C. 201-219).
       (b) Oppressive child labor means employment of a minor in 
     an occupation for which he does not meet the minimum age 
     standards of the Act, as set forth in Sec. 570.2 of this 
     subpart.
       (c) Oppressive child labor age means an age below the 
     minimum age established under the Act for the occupation in 
     which a minor is employed or in which his employment is 
     contemplated.
       (d) [Reserved]
       (e) [Reserved]
       (f) Secretary or Secretary of Labor means the Secretary of 
     Labor, United States Department of Labor, or his authorized 
     representative.
       (g) Wage and Hour Division means the Wage and Hour 
     Division, Employment Standards Administration, United States 
     Department of Labor.
       (h) Administrator means the Administrator of the Wage and 
     Hour Division or his authorized representative.

     Sec. C570.2 Minimum age standards.

       (a) All occupations except in agriculture. (1) The Act, in 
     section 3(1), sets a general 16-year minimum age which 
     applies to all employment subject to its child labor 
     provisions in any occupation other than in agriculture, with 
     the following exceptions:
       (i) The Act authorizes the Secretary of Labor to provide by 
     regulation or by order that the employment of employees 
     between the ages of 14 and 16 years in occupations other than 
     manufacturing and mining shall not be deemed to constitute 
     oppressive child labor, if and to the extent that the 
     Secretary of Labor determines that such employment is 
     confined to periods which will not interfere with their 
     schooling and to conditions which will not interfere with 
     their health and well-being (see subpart C of this part); and
       (ii) The Act sets an 18-year minimum age with respect to 
     employment in any occupation found and declared by the 
     Secretary of Labor to be particularly hazardous for the 
     employment of minors of such age or detrimental to their 
     health or well-being.
       (2) The Act exempts from its minimum age requirements the 
     employment by a parent of his own child, or by a person 
     standing in place of a parent of a child in his custody, 
     except in occupations to which the 18-year age minimum 
     applies and in manufacturing and mining occupations.


                          Subpart B [Reserved]

 Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child 
                             Labor Reg. 3)

     Sec. C570.31 Determination.

       The employment of minors between 14 and 16 years of age in 
     the occupations, for the periods, and under the conditions 
     hereafter specified does not interfere with their schooling 
     or with their health and well-being and shall not be deemed 
     to be oppressive child in labor.

     Sec. C570.32 Effect of this subpart.

       In all occupations covered by this subpart the employment 
     (including suffering or permitting to work) by an employer of 
     minor employees between 14 and 16 years of age for the 
     periods and under the conditions specified in Sec. 570.35 
     shall not be deemed to be oppressive child labor within the 
     meaning of the Fair Labor Standards Act of 1938.

     Sec. C570.33 Occupations.

       This subpart shall apply to all occupations other than the 
     following:
       (a) Manufacturing, mining, or processing occupations, 
     including occupations requiring the performance of any duties 
     in work rooms or work places where goods are manufactured, 
     mined, or otherwise processed;
        (b) Occupations which involve the operation or tending of 
     hoisting apparatus or of any power-driven machinery other 
     than office machines;
       (c) The operation of motor vehicles or service as helpers 
     on such vehicles;
       (d) Public messenger service;
       (e) Occupations which the Secretary of Labor may, pursuant 
     to section 3(1) of the Fair Labor Standards Act and 
     Reorganization Plan No. 2, issued pursuant to the 
     Reorganization Act of 1945, find and declare to be hazardous 
     for the employment of minors between 16 and 18 years of age 
     or detrimental to their health or well-being;
       (f) Occupations in connection with:
       (1) Transportation of persons or property by rail, highway, 
     air, water, pipeline, or other means;
       (2) Warehousing and storage;
       (3) Communications and public utilities;
       (4) Construction (including demolition and repair); except 
     such office (including ticket office) work, or sales work, in 
     connection with paragraphs (f)(1), (2), (3), and (4) of this 
     section, as does not involve the performance of any duties on 
     trains, motor vehicles, aircraft, vessels, or other media of 
     transportation or at the actual site of construction 
     operations.

     Sec. C570.35 Periods and conditions of employment.

       (a) Except as provided in paragraph (b) of this section, 
     employment in any of the occupations to which this subpart is 
     applicable shall be confined to the following periods:
       (1) Outside school hours;
       (2) Not more than 40 hours in any 1 week when school is not 
     in session;
       (3) Not more than 18 hours in any 1 week when school is in 
     session;
       (4) Not more than 8 hours in any 1 day when school is not 
     in session;
       (5) Not more than 3 hours in any 1 day when school is in 
     session;
       (6) Between 7 a.m. and 7 p.m. in any 1 day, except during 
     the summer (June 1 through Labor Day) when the evening hour 
     will be 9 p.m.


                          Subpart D [Reserved]

  Subpart E--Occupations Particularly Hazardous for the Employment of 
Minors Between 16 and 18 Years of Age or Detrimental to Their Health or 
                               Well-Being

     Sec. C570.50 General.

       (a) Higher standards. Nothing in this subpart shall 
     authorize non-compliance with any Federal law or regulation 
     establishing a higher standard. If more than one standard 
     within this subpart applies to a single activity the higher 
     standard shall be applicable.
       (b) Apprentices. Some sections in this subpart contain an 
     exemption for the employment of apprentices. Such an 
     exemption shall apply only when: (1) The apprentice is 
     employed in a craft recognized as an apprenticeable trade; 
     (2) the work of the apprentice in the occupations declared 
     particularly hazardous is incidental to his training; (3) 
     such work is intermittent and for short periods of time and 
     is under the direct and close supervision of a journeyman as 
     a necessary part of such apprentice training; and (4) the 
     apprentice is registered by the Executive Director of the 
     Office of Compliance as employed in accordance with the 
     standards established by the Bureau of Apprenticeship and 
     Training of the United States Department of Labor.
       (c) Student-learners. Some sections in this subpart contain 
     an exemption for the employment of student-learners. Such an 
     exemption shall apply when:
       (1) The student-learner is enrolled in a course of study 
     and training in a cooperative vocational training program 
     under a recognized State or local educational authority or in 
     a course of study in a substantially similar program 
     conducted by a private school and;
       (2) Such student-learner is employed under a written 
     agreement which provides:
       (i) That the work of the student-learner in the occupations 
     declared particularly hazardous shall be incidental to his 
     training;
       (ii) That such work shall be intermittent and for short 
     periods of time, and under the direct and close supervision 
     of a qualified and experienced person;
       (iii) That safety instructions shall be given by the school 
     and correlated by the employer with on-the-job training; and
       (iv) That a schedule of organized and progressive work 
     processes to be performed on the job shall have been 
     prepared. Each such written agreement shall contain the name 
     of student-learner, and shall be signed by the employer and 
     the school coordinator or principal. Copies of each agreement 
     shall be kept on file by both the school and the employer. 
     This exemption for the employment of student-learners may be 
     revoked in any individual situation where it is found that 
     reasonable precautions have not been observed for the safety 
     of minors employed thereunder. A high school graduate may be 
     employed in an occupation in which he has completed training 
     as provided in this paragraph as a student-learner, even 
     though he is not yet 18 years of age.

     Sec. C570.51 Occupations in or about plants or establishments 
       manufacturing or storing explosives or articles containing 
       explosive components (Order 1).

       (a) Finding and declaration of fact. The following 
     occupations in or about plants or establishments 
     manufacturing or storing explosives or articles containing 
     explosive components are particularly hazardous for minors 
     between 16 and 18 years of age or detrimental to their health 
     or well-being:
       (1) All occupations in or about any plant or establishment 
     (other than retail establishments or plants or establishments 
     of the type described in paragraph (a)(2) of this section) 
     manufacturing or storing explosives or articles containing 
     explosive components except where the occupation is performed 
     in a ``nonexplosives area'' as defined in paragraph (b)(3) of 
     this section.
       (2) The following occupations in or about any plant or 
     establishment manufacturing or storing small-arms ammunition 
     not exceeding .60 caliber in size, shotgun shells, or 
     blasting caps when manufactured or stored in conjunction with 
     the manufacture of small-arms ammunition:
       (i) All occupations involved in the manufacturing, mixing, 
     transporting, or handling of explosive compounds in the 
     manufacture of small-arms ammunition and all other 
     occupations requiring the performance of any 

[[Page S 17625]]
     duties in the explosives area in which explosive compounds are 
     manufactured or mixed.
       (ii) All occupations involved in the manufacturing, 
     transporting, or handling of primers and all other 
     occupations requiring the performance of any duties in the 
     same building in which primers are manufactured.
       (iii) All occupations involved in the priming of cartridges 
     and all other occupations requiring the performance of any 
     duties in the same workroom in which rim-fire cartridges are 
     primed.
       (iv) All occupations involved in the plate loading of 
     cartridges and in the operation of automatic loading 
     machines.
       (v) All occupations involved in the loading, inspecting, 
     packing, shipping and storage of blasting caps.
       (b) Definitions. For the purpose of this section:
       (1) The term plant or establishment manufacturing or 
     storing explosives or articles containing explosive component 
     means the land with all the buildings and other structures 
     thereon used in connection with the manufacturing or 
     processing or storing of explosives or articles containing 
     explosive components.
       (2) The terms explosives and articles containing explosive 
     components mean and include ammunition, black powder, 
     blasting caps, fireworks, high explosives, primers, smokeless 
     powder, and all goods classified and defined as explosives by 
     the Interstate Commerce Commission in regulations for the 
     transportation of explosives and other dangerous substances 
     by common carriers (49 CFR parts 71 to 78) issued pursuant to 
     the Act of June 25, 1948 (62 Stat. 739; 18 U.S.C. 835).
       (3) An area meeting all of the criteria in paragraphs 
     (b)(3) (i) through (iv) of this section shall be deemed a 
     ``nonexplosives area'':
       (i) None of the work performed in the area involves the 
     handling or use of explosives;
       (ii) The area is separated from the explosives area by a 
     distance not less than that prescribed in the American Table 
     of Distances for the protection of inhabited buildings;
       (iii) The area is separated from the explosives area by a 
     fence or is otherwise located so that it constitutes a 
     definite designated area; and
       (iv) Satisfactory controls have been established to prevent 
     employees under 18 years of age within the area from entering 
     any area in or about the plant which does not meet criteria 
     of paragraphs (b)(3) (i) through (iii) of this section.

     Sec. C570.52 Occupations of motor-vehicle driver and outside 
       helper (Order 2).

       (a) Findings and declaration of fact. Except as provided in 
     paragraph (b) of this section, the occupations of motor-
     vehicle driver and outside helper on any public road, 
     highway, in or about any mine (including open pit mine or 
     quarry), place where logging or sawmill operations are in 
     progress, or in any excavation of the type identified in 
     Sec. C570.68(a) are particularly hazardous for the employment 
     of minors between 16 and 18 years of age.
       (b) Exemption--Incidental and occasional driving. The 
     findings and declaration in paragraph (a) of this section 
     shall not apply to the operation of automobiles or trucks not 
     exceeding 6,000 pounds gross vehicle weight if such driving 
     is restricted to daylight hours; provided, such operation is 
     only occasional and incidental to the minor's employment; 
     that the minor holds a State license valid for the type of 
     driving involved in the job performed and has completed a 
     State approved driver education course; and provided further, 
     that the vehicle is equipped with a seat belt or similar 
     restraining device for the driver and for each helper, and 
     the employer has instructed each minor that such belts or 
     other devices must be used. This paragraph shall not be 
     applicable to any occupation of motor-vehicle driver which 
     involves the towing of vehicles.
       (c) Definitions. For the purpose of this section:
       (1) The term motor vehicle shall mean any automobile, 
     truck, truck-tractor, trailer, semitrailer, motorcycle, or 
     similar vehicle propelled or drawn by mechanical power and 
     designed for use as a means of transportation but shall not 
     include any vehicle operated exclusively on rails.
       (2) The term driver shall mean any individual who, in the 
     course of employment, drives a motor vehicle at any time.
       (3) The term outside helper shall mean any individual, 
     other than a driver, whose work includes riding on a motor 
     vehicle outside the cab for the purpose of assisting in 
     transporting or delivering goods.
       (4) The term gross vehicle weight includes the truck 
     chassis with lubricants, water and a full tank or tanks of 
     fuel, plus the weight of the cab or driver's compartment, 
     body and special chassis and body equipment, and payload.

     Sec. C570.55 Occupations involved in the operation of power-
       driven woodworking machines (Order 5).

       (a) Finding and declaration of fact. The following 
     occupations involved in the operation of power-driven wood-
     working machines are particularly hazardous for minors 
     between 16 and 18 years of age:
       (1) The occupation of operating power-driven woodworking 
     machines, including supervising or controlling the operation 
     of such machines, feeding material into such machines, and 
     helping the operator to feed material into such machines but 
     not including the placing of material on a moving chain or in 
     a hopper or slide for automatic feeding.
       (2) The occupations of setting up, adjusting, repairing, 
     oiling, or cleaning power-driven woodworking machines.
       (3) The occupations of off-bearing from circular saws and 
     from guillotine-action veneer clippers.
       (b) Definitions. As used in this section:
       (1) The term power-driven woodworking machines shall mean 
     all fixed or portable machines or tools driven by power and 
     used or designed for cutting, shaping, forming, surfacing, 
     nailing, stapling, wire stitching, fastening, or otherwise 
     assembling, pressing, or printing wood or veneer.
       (2) The term off-bearing shall mean the removal of material 
     or refuse directly from a saw table or from the point of 
     operation. Operations not considered as off-bearing within 
     the intent of this section include: (i) The removal of 
     material or refuse from a circular saw or guillotine-action 
     veneer clipper where the material or refuse has been conveyed 
     away from the saw table or point of operation by a gravity 
     chute or by some mechanical means such as a moving belt or 
     expulsion roller, and (ii) the following operations when they 
     do not involve the removal of material or refuse directly 
     from a saw table or from the point of operation: The 
     carrying, moving, or transporting of materials from one 
     machine to another or from one part of a plant to another; 
     the piling, stacking, or arranging of materials for feeding 
     into a machine by another person; and the sorting, tying, 
     bundling, or loading of materials.
       (c) Exemptions. This section shall not apply to the 
     employment of apprentices or student-learners under the 
     conditions prescribed in Sec. 570.50 (b) and (c).

     Sec. C570.58 Occupations involved in the operation of power-
       driven hoisting apparatus (Order 7).

       (a) Finding and declaration of fact. The following 
     occupations involved in the operation of power-driven 
     hoisting apparatus are particularly hazardous for minors 
     between 16 and 18 years of age:
       (1) Work of operating an elevator, crane, derrick, hoist, 
     or high-lift truck, except operating an unattended automatic 
     operation passenger elevator or an electric or air-operated 
     hoist not exceeding one ton capacity.
       (2) Work which involves riding on a manlift or on a freight 
     elevator, except a freight elevator operated by an assigned 
     operator.
       (3) Work of assisting in the operation of a crane, derrick, 
     or hoist performed by crane hookers, crane chasers, hookers-
     on, riggers, rigger helpers, and like occupations.
       (b) Definitions. As used in this section:
       (1) The term elevator shall mean any power-driven hoisting 
     or lowering mechanism equipped with a car or platform which 
     moves in guides in a substantially vertical direction. The 
     term shall include both passenger and freight elevators 
     (including portable elevators or tiering machines), but shall 
     not include dumbwaiters.
       (2) The term crane shall mean a power-driven machine for 
     lifting and lowering a load and moving it horizontally, in 
     which the hoisting mechanism is an integral part of the 
     machine. The term shall include all types of cranes, such as 
     cantilever gantry, crawler, gantry, hammerhead, ingot-
     pouring, jib, locomotive, motor-truck, overhead traveling, 
     pillar jib, pintle, portal, semi-gantry, semi-portal, storage 
     bridge, tower, walking jib, and wall cranes.
       (3) The term derrick shall mean a power-driven apparatus 
     consisting of a mast or equivalent members held at the top by 
     guys or braces, with or without a boom, for use with an 
     hoisting mechanism or operating ropes. The term shall include 
     all types of derricks, such as A-frame, breast, Chicago boom, 
     gin-pole, guy and stiff-leg derrick.
       (4) The term hoist shall mean a power-driven apparatus for 
     raising or lowering a load by the application of a pulling 
     force that does not include a car or platform running in 
     guides. The term shall include all types of hoists, such as 
     base mounted electric, clevis suspension, hook suspension, 
     monorail, overhead electric, simple drum and trolley 
     suspension hoists.
       (5) The term high-lift truck shall mean a power-driven 
     industrial type of truck used for lateral transportation that 
     is equipped with a power-operated lifting device usually in 
     the form of a fork or platform capable of tiering loaded 
     pallets or skids one above the other. Instead of a fork or 
     platform, the lifting device may consist of a ram, scoop, 
     shovel, crane, revolving fork, or other attachments for 
     handling specific loads. The term shall mean and include 
     highlift trucks known under such names as fork lifts, fork 
     trucks, fork-lift trucks, tiering trucks, or stacking trucks, 
     but shall not mean low-lift trucks or low-lift platform 
     trucks that are designed for the transportation of but not 
     the tiering of material.
       (6) The term manlift shall mean a device intended for the 
     conveyance of persons which consists of platforms or brackets 
     mounted on, or attached to, an endless belt, cable, chain or 
     similar method of suspension; such belt, cable or chain 
     operating in a substantially vertical direction and being 
     supported by and driven through pulleys, sheaves or sprockets 
     at the top and bottom.
       (c) Exception. (1) This section shall not prohibit the 
     operation of an automatic elevator and an automatic signal 
     operation elevator provided that the exposed portion of 

[[Page S 17626]]
     the car interior (exclusive of vents and other necessary small 
     openings), the car door, and the hoistway doors are 
     constructed of solid surfaces without any opening through 
     which a part of the body may extend; all hoistway openings at 
     floor level have doors which are interlocked with the car 
     door so as to prevent the car from starting until all such 
     doors are closed and locked; the elevator (other than 
     hydraulic elevators) is equipped with a device which will 
     stop and hold the car in case of overspeed or if the cable 
     slackens or breaks; and the elevator is equipped with upper 
     and lower travel limit devices which will normally bring the 
     car to rest at either terminal and a final limit switch which 
     will prevent the movement in either direction and will open 
     in case of excessive over travel by the car.
       (2) For the purpose of this exception the term automatic 
     elevator shall mean a passenger elevator, a freight elevator, 
     or a combination passenger-freight elevator, the operation of 
     which is controlled by pushbuttons in such a manner that the 
     starting, going to the landing selected, leveling and 
     holding, and the opening and closing of the car and hoistway 
     doors are entirely automatic.
       (3) For the purpose of this exception, the term automatic 
     signal operation elevator shall mean an elevator which is 
     started in response to the operation of a switch (such as a 
     lever or pushbutton) in the car which when operated by the 
     operator actuates a starting device that automatically closes 
     the car and hoistway doors--from this point on, the movement 
     of the car to the landing selected, leveling and holding when 
     it gets there, and the opening of the car and hoistway doors 
     are entirely automatic.

     Sec. C570.59 Occupations involved in the operations of power-
       driven metal forming, punching, and shearing machines 
       (Order 8).

       (a) Finding and declaration of fact. The following 
     occupations are particularly hazardous for the employment of 
     minors between 16 and 18 years of age:
       (1) The occupations of operator of or helper on the 
     following power-driven metal forming, punching, and shearing 
     machines:
       (i) All rolling machines, such as beading, straightening, 
     corrugating, flanging, or bending rolls; and hot or cold 
     rolling mills.
       (ii) All pressing or punching machines, such as punch 
     presses except those provided with full automatic feed and 
     ejection and with a fixed barrier guard to prevent the hands 
     or fingers of the operator from entering the area between the 
     dies; power presses; and plate punches.
       (iii) All bending machines, such as apron brakes and press 
     brakes.
       (iv) All hammering machines, such as drop hammers and power 
     hammers.
       (v) All shearing machines, such as guillotine or squaring 
     shears; alligator shears; and rotary shears.
       (2) The occupations of setting up, adjusting, repairing, 
     oiling, or cleaning these machines including those with 
     automatic feed and ejection.
       (b) Definitions. (1) The term operator shall mean a person 
     who operates a machine covered by this section by performing 
     such functions as starting or stopping the machine, placing 
     materials into or removing them from the machine, or any 
     other functions directly involved in operation of the 
     machine.
       (2) The term helper shall mean a person who assists in the 
     operation of a machine covered by this section by helping 
     place materials into or remove them from the machine.
       (3) The term forming, punching, and shearing machines shall 
     mean power-driven metal-working machines, other than machine 
     tools, which change the shape of or cut metal by means of 
     tools, such as dies, rolls, or knives which are mounted on 
     rams, plungers, or other moving parts. Types of forming, 
     punching, and shearing machines enumerated in this section 
     are the machines to which the designation is by custom 
     applied.
       (c) Exemptions. This section shall not apply to the 
     employment of apprentices or student-learners under the 
     conditions prescribed in Sec. 570.50 (b) and (c).

     Sec. C570.62 Occupations involved in the operation of bakery 
       machines (Order 11).

       (a) Finding and declaration of fact. The following 
     occupations involved in the operation of power-driven bakery 
     machines are particularly hazardous for the employment of 
     minors between 16 and 18 years of age:
       (1) The occupations of operating, assisting to operate, or 
     setting up, adjusting, repairing, oiling, or cleaning any 
     horizontal or vertical dough mixer; batter mixer; bread 
     dividing, rounding, or molding machine; dough brake; dough 
     sheeter; combination bread slicing and wrapping machine; or 
     cake cutting band saw.
       (2) The occupation of setting up or adjusting a cooky or 
     cracker machine.

     Sec. C570.63 Occupations involved in the operation of paper-
       products machines (Order 12).

       (a) Findings and declaration of fact. The following 
     occupations are particularly hazardous for the employment of 
     minors between 16 and 18 years of age:
       (1) The occupations of operation or assisting to operate 
     any of the following power-driven paper products machines:
       (i) Arm-type wire stitcher or stapler, circular or band 
     saw, corner cutter or mitering machine, corrugating and 
     single-or-double-facing machine, envelope die-cutting press, 
     guillotine paper cutter or shear, horizontal bar scorer, 
     laminating or combining machine, sheeting machine, scrap-
     paper baler, or vertical slotter.
       (ii) Platen die-cutting press, platen printing press, or 
     punch press which involves hand feeding of the machine.
       (2) The occupations of setting up, adjusting, repairing, 
     oiling, or cleaning these machines including those which do 
     not involve hand feeding.
       (b) Definitions. (1) The term operating or assisting to 
     operate shall mean all work which involves starting or 
     stopping a machine covered by this section, placing or 
     removing materials into or from the machine, or any other 
     work directly involved in operating the machine. The term 
     does not include the stacking of materials by an employee in 
     an area nearby or adjacent to the machine where such employee 
     does not place the materials into the machine.
       (2) The term paper products machine shall mean all power-
     driven machines used in:
       (i) The remanufacture or conversion of paper or pulp into a 
     finished product, including the preparation of such materials 
     for re-cycling; or
       (ii) The preparation of such materials for disposal. The 
     term applies to such machines whether they are used in 
     establishments that manufacture converted paper or pulp 
     products, or in any other type of manufacturing or 
     nonmanufacturing establishment.
       (c) Exemptions. This section shall not apply to the 
     employment of apprentices or student-learners under the 
     conditions prescribed in Sec. 570.50 (b) and (c).

     Sec. C570.65 Occupations involved in the operations of 
       circular saws, band saws, and guillotine shears (Order 14).

       (a) Findings and declaration of fact. The following 
     occupations are particularly hazardous for the employment of 
     minors between 16 and 18 years of age:
       (1) The occupations of operator of or helper on the 
     following power-driven fixed or portable machines except 
     machines equipped with full automatic feed and ejection:
       (i) Circular saws.
       (ii) Band saws.
       (iii) Guillotine shears.
       (2) The occupations of setting-up, adjusting, repairing, 
     oiling, or cleaning circular saws, band saws, and guillotine 
     shears.
       (b) Definitions. (1) The term operator shall mean a person 
     who operates a machine covered by this section by performing 
     such functions as starting or stopping the machine, placing 
     materials into or removing them from the machine, or any 
     other functions directly involved in operation of the 
     machine.
       (2) The term helper shall mean a person who assists in the 
     operation of a machine covered by this section by helping 
     place materials into or remove them from the machine.
       (3) The term machines equipped with full automatic feed and 
     ejection shall mean machines covered by this Order which are 
     equipped with devices for full automatic feeding and ejection 
     and with a fixed barrier guard to prevent completely the 
     operator or helper from placing any part of his body in the 
     point-of-operation area.
       (4) The term circular saw shall mean a machine equipped 
     with a thin steel disc having a continuous series of notches 
     or teeth on the periphery, mounted on shafting, and used for 
     sawing materials.
       (5) The term band saw shall mean a machine equipped with an 
     endless steel band having a continuous series of notches or 
     teeth, running over wheels or pulleys, and used for sawing 
     materials.
       (6) The term guillotine shear shall mean a machine equipped 
     with a movable blade operated vertically and used to shear 
     materials. The term shall not include other types of shearing 
     machines, using a different form of shearing action, such as 
     alligator shears or circular shears.
       (c) Exemptions. This section shall not apply to the 
     employment of apprentices or student-learners under the 
     conditions prescribed in Sec. 570.50 (b) and (c).

     Sec. C570.66 Occupations involved in wrecking and demolition 
       operations (Order 15).

       (a) Finding and declaration of fact. All occupations in 
     wrecking and demolition operations are particularly hazardous 
     for the employment of minors between 16 and 18 years of age 
     and detrimental to their health and well-being.
       (b) Definition. The term wrecking and demolition operations 
     shall mean all work, including clean-up and salvage work, 
     performed at the site of the total or partial razing, 
     demolishing, or dismantling of a building, bridge, steeple, 
     tower, chimney, other structure.

     Sec. C570.67 Occupations in roofing operations (Order 16).

       (a) Finding and declaration of fact. All occupations in 
     roofing operations are particularly hazardous for the 
     employment of minors between 16 and 18 years of age or 
     detrimental to their health.
       (b) Definition of roofing operations. The term roofing 
     operations shall mean all work performed in connection with 
     the application of weatherproofing materials and substances 
     (such as tar or pitch, asphalt prepared paper, tile, slate, 
     metal, translucent materials, and shingles of asbestos, 
     asphalt or wood) to roofs of buildings or other structures. 
     The term shall also include all work performed in connection 
     with: (1) The installation of roofs, including related metal 
     work such as flashing and (2) alterations, additions, 
     maintenance, and repair, including 

[[Page S 17627]]
     painting and coating, of existing roofs. The term shall not include 
     gutter and downspout work; the construction of the sheathing 
     or base of roofs; or the installation of television antennas, 
     air conditioners, exhaust and ventilating equipment, or 
     similar appliances attached to roofs.
       (c) Exemptions. This section shall not apply to the 
     employment of apprentices or student-learners under the 
     conditions prescribed in Sec. 570.50 (b) and (c).

     Sec. C570.68 Occupations in excavation operations (Order 17).

       (a) Finding and declaration of fact. The following 
     occupations in excavation operations are particularly 
     hazardous for the employment of persons between 16 and 18 
     years of age: (1) Excavating, working in, or backfilling 
     (refilling) trenches, except (i) manually excavating or 
     manually backfilling trenches that do not exceed four feet in 
     depth at any point, or (ii) working in trenches that do not 
     exceed four feet in depth at any point.
       (2) Excavating for buildings or other structures or working 
     in such excavations, except: (i) Manually excavating to a 
     depth not exceeding four feet below any ground surface 
     adjoining the excavation, or (ii) working in an excavation 
     not exceeding such depth, or (iii) working in an excavation 
     where the side walls are shored or sloped to the angle of 
     repose.
       (3) Working within tunnels prior to the completion of all 
     driving and shoring operations.
       (4) Working within shafts prior to the completion of all 
     sinking and shoring operations.
       (b) Exemptions. This section shall not apply to the 
     employment of apprentices or student-learners under the 
     conditions prescribed in Sec. C570.50 (b) and (c).


                          OFFICE OF COMPLIANCE

       The Congressional Accountability Act of 1995: Extension of 
     Rights and Protections Under the Family and Medical Leave Act 
     of 1993

                     Notice of proposed rulemaking

       Summary: This notice contains proposed regulations to 
     extend rights and protections under the Family and Medical 
     Leave Act of 1993 (``FMLA'') to employees of the House of 
     Representatives, the Senate, and certain Congressional 
     instrumentalities listed below. These proposed regulations 
     implement sections 202 (a) and (b) of the Congressional 
     Accountability Act of 1995 (``CAA''), Public Law 104-1, 2 
     U.S.C. Sec. Sec. 1312(a)-(b).
       The CAA extends the rights and protections of eleven labor 
     and employment laws to covered employees within the 
     legislative branch. Section 202 governs the extension of the 
     rights and protections of the FMLA to covered employees and 
     employing offices of the House of Representatives, the 
     Senate, and seven Congressional instrumentalities listed in 
     paragraph (3) below. The purposes of the FMLA include 
     entitling employees to take reasonable leave for medical 
     reasons, for the birth or adoption of a child, and for the 
     care of a child, spouse, or parent who has a serious health 
     condition.
       This notice proposes that substantially similar regulations 
     be adopted for the Senate, the House of Representatives, and 
     the seven Congressional instrumentalities; and their 
     employees. Accordingly:
       (1) Senate. It is proposed that regulations as described in 
     this notice be included in the body of regulations that shall 
     apply to the Senate and employees of the Senate, and this 
     proposal regarding the Senate and its employees is 
     recommended by the Office of Compliance's Deputy Executive 
     Director for the Senate.
       (2) House of Representatives. It is further proposed that 
     regulations as described in this notice be included in the 
     body of regulations that shall apply to the House of 
     Representatives and employees of the House of 
     Representatives, and this proposal regarding the House of 
     Representatives and its employees is recommended by the 
     Office of Compliance's Deputy Executive Director for the 
     House of Representatives.
       (3) Certain Congressional instrumentalities. It is further 
     proposed that regulations as described in this notice be 
     included in the body of regulations that shall apply to the 
     Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment, and their employees; and this proposal regarding 
     these seven Congressional instrumentalities is recommended by 
     the Office of Compliance's Executive Director.
       Dates: Comments are due on or before the date 30 days after 
     the date of publication of this 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, John Adams Building, 110 Second 
     Street, S.E., Washington, D.C. 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, Library of Congress, 
     James Madison Building, Washington, D.C., 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, at (202) 
     224-2507.
       Supplementary information:

                             A. Background.

       Statutory background. The Congressional Accountability Act 
     of 1995 (``CAA''), 2 U.S.C. Sec. Sec. 1301 et seq., was 
     enacted into law on January 23, 1995. The CAA extends the 
     application of eleven federal labor and employment laws to 
     covered employees and employing offices within the 
     legislative branch.
       Sections 202 (a) and (b) of the CAA apply rights and 
     protections of the Family and Medical Leave Act of 1993 
     (``FMLA'') to covered employees and employing offices. The 
     FMLA 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 regulations of the Secretary of 
     Labor (``Secretary'') implementing the FMLA 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 the rights under other 
     employment laws including the Americans With Disabilities 
     Act, workers compensation, and Title VII of the Civil Rights 
     Act of 1964.
       Section 202(d) of the CAA directs the Board of Directors of 
     the Office of Compliance established under the CAA to issue 
     regulations to implement the rights and protections under 
     section 202. Section 202(d)(2) further states that the 
     regulations ``shall be the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     section 202] 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.''
       Offices to which the proposed regulations apply. As noted 
     above in the Summary, the regulations proposed in this notice 
     are to be adopted in three separate bodies of regulations: 
     (1) one applying to the Senate and its employees, (2) one 
     applying to the House of Representatives and its employees, 
     and (3) one applying to the seven Congressional 
     instrumentalities listed above in the Summary, and their 
     employees.1 It is proposed that there will be only 
     minor, non-substantive variations among the three versions 
     of these regulations. These proposed variations are set 
     forth in the proposed regulatory language included in this 
     NPRM.
     \1\ This notice does not apply to the General Accounting 
     Office (``GAO''), the Government Printing Office (``GPO''), 
     or the Library of Congress (the ``Library''). Section 201 of 
     the FMLA already applies to GAO, GPO, and the Library (5 
     U.S.C. Sec. Sec. 6381 et seq.); section 230 of the CAA 
     requires a study of the application of the FMLA to these 
     three agencies; and section 202(c) of the CAA amends the FMLA 
     provisions applicable to the GAO and the Library, effective 
     one year after the study is transmitted to Congress.
---------------------------------------------------------------------------

 B. The Advance Notice of Proposed Rulemaking, and Response to Comments

       On September 28, 1995, the Board of Directors of the Office 
     of Compliance issued an Advance Notice of Proposed Rulemaking 
     (``ANPRM'') soliciting comments from interested parties in 
     order to obtain information and participation early in the 
     rulemaking process. 141 Cong. Rec. S 14542 (daily ed., Sept. 
     28, 1995). In addition to inviting comment on specific 
     questions arising under five of the statutes made applicable 
     by the CAA, the Board and the Executive Director, and the 
     Deputy Executive Directors of the Office of Compliance have 
     consulted with the Chair of the Administrative Conference of 
     the United States, the Secretary of Labor, and the Director 
     of the Office of Personnel Management with regard to the 
     development of these regulations in accordance with Section 
     304(g) of the CAA. Based on the information gleaned from 
     these comments on the ANPRM and this consultation, the Board 
     is publishing these proposed rules pursuant to section 202(d) 
     of the CAA, 2 U.S.C. Sec. 1312(d).
       In response to the ANPRM, the Board received comments from 
     a variety of sources expressing a wide range of views. The 
     following discussion describes issues raised by the ANPRM and 
     by comments in response to the ANPRM, and explains how the 
     Board has taken these comments into account in developing 
     proposed regulations. The Board invites further comments on 
     the regulations proposed in this notice.
       The first two issues--on whether the Board should modify 
     the Secretary of Labor's regulations, and on notice posting 
     and recordkeeping--are generic issues that arise under 
     several statutes made applicable by the CAA. The comments on 
     these issues and the Board's conclusions are fully discussed 
     in the Notice of Proposed Rulemaking (NPRM) regarding the 
     application of the Fair Labor Standards Act (FLSA). The NPRM 
     regarding the FLSA is being published today, in this issue of 
     the Congressional Record. Therefore, the comments and 
     analysis regarding these two issues are only briefly 
     summarized in this notice, and the reader is directed to the 

[[Page S 17628]]
     NPRM regarding the FLSA for a fuller discussion.
     1. Whether and to what extent the board should modify the 
         labor department's regulations
       The first question posed in the ANPRM was the general 
     question of whether and to what extent the Board should 
     modify the Department of Labor's regulations with respect to 
     all of the statutes made applicable by the CAA.
       Those commenters who expressed views on this issue cited 
     both the statute and the legislative history for the position 
     that the CAA presumes that the regulations of the Department 
     of Labor should generally not be modified. As noted above, 
     the comments received in response to this question are 
     summarized and discussed in the NPRM regarding the 
     application of the FLSA, which is being published today in 
     the Congressional Record.
       Based on the comments and the Board's understanding of the 
     law and the institutions to which it is being made 
     applicable, the Board has decided to issue the FMLA 
     regulations with only limited and necessary modifications to 
     the Secretary's regulations. In making the FMLA applicable, 
     the CAA changed the key definition of ``eligible employee,'' 
     and the Board therefore proposes to make a corresponding 
     modification to the definition of ``eligible employee'' in 
     the Secretary's regulations. Certain conforming amendments 
     and technical changes in the nomenclature of the Secretary's 
     regulations have also been proposed, and those sections that 
     are clearly inapplicable have specifically not been proposed 
     for adoption by the Board. These proposed modifications to 
     the Secretary's regulations are discussed below.
     2. Notice posting and recordkeeping
       The ANPRM also invited 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. The ANPRM inquired whether, if such 
     requirements were not incorporated, could and should the 
     Board develop its own requirements pursuant to its ``good 
     cause'' authority. The ANPRM also invited comment on 
     proposing guidelines and models for recordkeeping and notice 
     posting. As noted above, the comments received in response to 
     these questions are summarized and discussed in the NPRM 
     regarding the application of the FLSA.
       The Board agrees with those commenters who took the 
     position that, if employing offices are to be treated the 
     same as private sector employers are treated under the FMLA, 
     they should have to comply with the statute's notice posting 
     and recordkeeping requirements. Moreover, the Board notes 
     that notice posting and recordkeeping promote the full and 
     effective enforcement of incorporated rights and protections. 
     In the Board's view, notice posting and recordkeeping may 
     well be in employers' interests both as a sound personnel 
     practice and in order to defend against subsequent 
     litigation.
       But, while the CAA incorporates certain specific sections 
     of the FMLA, the CAA explicitly did not incorporate the 
     notice posting and recordkeeping requirements of Sections 109 
     and 106(b), of the FMLA. For the reasons discussed with 
     respect to the FLSA, as the CAA has not incorporated the 
     notice posting and recordkeeping requirements of the FMLA, 
     the Board will not do so. Accordingly, the Board proposes 
     not to adopt sections 825.300 and 825.500 of the 
     Secretary's FMLA regulations.
       For similar reasons, the Board is proposing not to adopt a 
     provision of section 825.110(c) of the Secretary's 
     regulations. Section 825.110(c) addresses the question of how 
     to determine whether the 1,250-hour leave-eligibility 
     requirement has been satisfied. This section states that the 
     principles established under the Fair Labor Standards Act 
     (FLSA) will be used, and states further that, if an employer 
     does not maintain an accurate record of hours worked, the 
     employer has the burden of showing that the employee has not 
     worked the requisite number of hours. Section 825.110(c) 
     further provides that, in the event the employer is unable to 
     meet this burden, the employee is deemed to have met the 
     test. Section 101(2)(C) of the FMLA states that, for purposes 
     of determining whether an employee worked the requisite 1,250 
     hours, the legal standards established under the FLSA shall 
     apply. Although section 101(2)(C) of the FMLA incorporates 
     the recordkeeping requirements of the FLSA, the Board has 
     concluded that section 101(2)(C) does not make the FLSA 
     recordkeeping requirements applicable under the CAA. This is 
     because, by excluding the FLSA recordkeeping requirements 
     from the FLSA provisions of the CAA, Congress indicated its 
     intent that those recordkeeping requirements should not apply 
     with respect to any CAA requirement. Accordingly, the Board 
     has concluded that the legal authority supporting the 
     Secretary's regulatory provision regarding burdens was not 
     incorporated into the FMLA provisions of the CAA, and this 
     regulatory provision is not included in the Board's proposed 
     regulations.
       The Board notes, however, that, as a practical matter, 
     implementation of the FMLA, as made applicable by the CAA, 
     requires an adequate system of keeping records. Such records 
     will be needed, for example, for the employing office to know 
     when employees have satisfied the 12-months and 1,250-hours 
     of service for eligibility, and to keep track of how much 
     FMLA leave each employee has taken during a leave year. As 
     various commenters suggest, the Board will provide guidance 
     to employing offices concerning model recordkeeping practices 
     as part of carrying out its program of education under 
     section 301(h)of the CAA (2 U.S.C. 1381(h)).
       The Board would also note, as it did in the NPRM involving 
     the application of the rights and protections of the FLSA, 
     that the absence of recordkeeping and notice posting 
     requirements may create a void which can only partially be 
     filled by the program of education to be carried out by the 
     Board. The Board also would emphasize that employees will in 
     many circumstances be able to establish a prima facie case 
     simply by their own testimony where the employing office has 
     failed to maintain adequate, accurate records and an 
     employing office may find that its ability to respond to an 
     employee's prima facie case is substantially burdened by its 
     failure to keep accurate records. If Congress wishes to 
     experience the same burdens as faced by the private sector 
     and also to address these issues, it should enact 
     recordkeeping requirements comparable to those of the FMLA. 
     (Of course, like the regulations under the FMLA, such 
     recordkeeping requirements may leave to the discretion of 
     each employing office the precise form and manner in which 
     records will be kept.) But, in light of the text and 
     structure of the CAA, the Board believes that it is up to 
     Congress to decide whether to do so.
       Finally, section 825.304(c) of the Secretary's regulations 
     refers to the posting of notices without mandating such 
     posting. Section 825.304 implements section 102(e) of the 
     FMLA which requires that an employee give the employer at 
     least 30 days'' advance notice of any foreseeable FMLA leave. 
     The regulation provides that, if such notice is not provided, 
     the employer may delay the taking of FMLA leave until at 
     least 30 days after the date of actual notice from the 
     employee. However, in order for the onset of leave to be 
     delayed for lack of required notice, paragraph (c) requires 
     that it must be clear that the employee had actual notice of 
     the FMLA notice requirements. Finally, the paragraph offers 
     that ``This condition would be satisfied by the employer's 
     proper posting of the required notice at the worksite where 
     the employee is employed.'' Because this regulation 
     implements section 102(e) of the FMLA, the Board believes 
     that it must be adopted, absent good cause to modify it. Only 
     a minor modification is needed. Under section 301(h) of the 
     CAA, the Office must distribute information to employing 
     offices in a form suitable for posting, but there is no 
     requirement that the information actually be posted. 
     Accordingly, the Board proposes to refer not to the 
     ``required notice'', but to the ``information distributed by 
     the Office suitable for posting''.
     3. May an employee aggregate months and hours worked at more 
         than one employing office to satisfy the 12-months and 
         1,250-hours of work conditions for eligibility?
       Both the FMLA and the CAA include definitions of ``eligible 
     employee'' which require that, to be eligible for FMLA leave, 
     an employee must first have been employed for 12 months and 
     for at least 1,250 hours during the previous 12-month period. 
     However, the wording of the two definitions is significantly 
     different.
       The FMLA definition of ``eligible employee'' requires 
     employment for at least 12 months ``by the employer with 
     respect to whom leave is requested'' and for at least 1,250 
     hours of service during the previous 12 months with ``such 
     employer''. In contrast, under section 202(a)(2)(B) of the 
     CAA, an ``eligible employee'' is defined as a covered 
     employee who has been employed in ``any employing office for 
     12 months and for at least 1,250 hours of employment during 
     the previous 12 months''. It is clear that the FMLA 
     definition requires that the 12 months and 1,250 hours must 
     have been worked for the same employer from which the 
     employee requests leave. However, the CAA is ambiguous as to 
     whether an employee who worked for more than one employing 
     office can aggregate the months and hours of employment from 
     more than one employing offices to satisfy the 12-month and 
     1,250-hour requirements.
       Accordingly, the ANPRM asked: Whether and, if so, how the 
     12 months and 1,250 hours of work should be calculated for 
     employees who worked for more than one employing office.
       Commenters expressed opposing views on this question:
       One commenter argued that each employing office, in 
     practice and under the CAA, is a separate, independent 
     employer. Therefore, ``employing offices'' under the CAA 
     should be treated the same as ``employers'' under the FMLA. 
     Under this view, except in unusual circumstances, an employee 
     must have worked for 12 months, and for 1,250 hours within 
     the previous 12 months, for the particular employing office 
     from which leave is requested.
       Another commenter argued that employing offices under the 
     CAA should be treated the same as part of a single 
     institutional ``employer'' under the FMLA. The Board should 
     treat employing offices as part of a single employer. In this 
     view, employing offices would be analogous to the separate 
     ``establishments'' or ``divisions'' of a single corporate 
     employer.
       A third view, with respect to the 1,250-hour requirement, 
     was presented by another commenter. For employees who are 
     employed by more than one employing office, the Board 

[[Page S 17629]]
     should make clear that hours of employment in each employing office 
     will be considered when determining whether or not the 1,250 
     hour threshold has been met.
       The Board believes that the language of the CAA is 
     ambiguous. According to the dictionary, among several 
     possible meanings, the term ``any'' may mean ``one (no matter 
     which one) of more than two'', or it may mean ``every''. 
     Webster's New Universal Unabridged Dictionary (deluxe 2d ed., 
     1983). If the first meaning were applied, the 12 months and 
     1,250 hours would have to be accrued in one single employing 
     office; if the second meaning were applied, the months and 
     hours could be aggregated from every employment office where 
     the employee worked.
       The Board has concluded that the better understanding of 
     the CAA language is the latter one. The FMLA definition is 
     explicit that the 12 months must have been served with ``the 
     employer with respect to whom leave is requested'', and the 
     1,250 hours of service must also have been with ``such 
     employer''. However, in the CAA, Congress substituted the 
     phrase ``any employing office'' in place of the FMLA's 
     precise reference to the particular employer from whom leave 
     is requested. It therefore appears that eligibility should be 
     determined on the basis of months and hours worked for 
     employing offices other than just the one from which the 
     leave is requested.2
      2 This interpretation is consistent with the section-by-
     section analysis placed in the Congressional Record by 
     Senator Grassley on behalf of himself and Senator Lieberman. 
     Congressional Record, page S 623, col. 3 (Jan. 9, 1995).
---------------------------------------------------------------------------
       Based on the Board's understanding of the meaning of the 
     CAA, the Board proposes to modify the regulations as 
     promulgated by the Secretary--(1) to incorporate the 
     definition of ``eligible employee'' as set forth in section 
     202 of the CAA, and (2) to include language clarifying that, 
     where an employee works for two or more employing offices, 
     the months and hours worked will be aggregated for purposes 
     of determining eligibility. (See Sec. Sec. 825.110, 825.800 
     of the proposed regulations.)
     4. Should the Board's regulations retain the House of 
         Representatives rule under which employees are eligible 
         for FMLA leave immediately upon employment?
       Title V of the FMLA has applied certain rights and 
     protections to the House and Senate since August 1993. 
     Section 502, which applies to the House of Representatives, 
     and rules adopted in the House to implement section 502, 
     provide that House employees become eligible for FMLA leave 
     immediately, without any minimum months or hours of 
     employment.
       In response to the ANPRM, some commenters questioned 
     whether the Board should retain this approach for the House. 
     Certain commenters argued that making FMLA leave immediately 
     applicable in the House is based on the maximum two-year 
     employment period in the House, which comes to a discrete end 
     in the House at the conclusion of each Congress. Immediate 
     eligibility allegedly diminishes many of the anticipated 
     problems and issues regarding the administration of the leave 
     year, treatment of joint employer status, and inconsistency 
     of application. Accordingly, they urged the Board to retain 
     current immediate eligibility for the House. Other commenters 
     urged the opposite--i.e., that the Board should retain the 
     private-sector eligibility requirements of 12 months and 
     1,250 hours.
       The Board recognizes that the two-year employment cycle of 
     the House of Representatives creates terms and conditions of 
     employment which differ from the private sector. The Board 
     also recognizes that at least some within the House of 
     Representatives believe that immediate FMLA eligibility is an 
     important element of an appropriate FMLA program for the 
     House. However, for the Board's regulations to make House 
     employees immediately eligible for FMLA leave would go beyond 
     the express terms of the CAA.
       Of course, neither the FMLA, as applied by the CAA, nor the 
     regulations being proposed by the Board, would forbid the 
     House from establishing a more generous leave program under 
     its own authority. See Sec. 403 of the FMLA (applied by 
     Sec. 225(f)(1) of the CAA); Sec. 825.700 of the proposed 
     regulations. These provisions state that employing offices 
     are not intended to be discouraged from adopting or retaining 
     leave policies more generous than any policies that comply 
     with FMLA requirements. Therefore, individual employing 
     offices remain free to grant leave to employees immediately 
     upon employment, and nothing in the FMLA, as applied by the 
     CAA, should affect any ability of the House to mandate 
     immediate leave-eligibility for all House employing offices 
     under its own authority. This should enable the House to 
     retain much of the value of its current FMLA program, if the 
     House determines that it wishes to retain immediate 
     eligibility for leave.
       The Board recognizes that, if the House decides to grant 
     leave to employees who do not satisfy the CAA definition of 
     an ``eligible employee,'' attention must be paid to the 
     question of how such leave would be treated under both FMLA 
     and FLSA, as made applicable by the CAA. For example, an 
     employing office may wish to ``dock'' an employee's pay for 
     leave taken for partial-day absences. However, 
     Sec. 825.206(c) of the Board's proposed regulations provide: 
     ``Hourly or other deductions which are not in accordance with 
     [applicable requirements under FLSA regulations] may not be 
     taken, for example, where the employee has not worked long 
     enough to be eligible for FMLA leave without potentially 
     affecting the employee's eligibility for exemption [from FLSA 
     requirements].'' Furthermore, in preamble language to the 
     Secretary's FMLA regulations, the Secretary stated: ``Leave 
     granted under circumstances that do not meet FMLA's coverage, 
     eligibility, or specified reasons for FMLA-qualifying leave 
     may not be counted against FMLA's 12-week entitlement.'' 60 
     Fed. Reg. 2230, col. 1 (Jan. 6, 1995).
       In light of all of these factors, the Board does not 
     believe that good cause exists for the Board's regulations to 
     make House employees immediately eligible for FMLA leave.
     5. Should the Board designate a uniform leave year?
       As noted above, title V of the FMLA made certain rights and 
     protections under the FMLA available to employees of the 
     House and Senate. On August 5, 1993, the House Committee on 
     House Administration adopted regulations and forms to 
     implement the FMLA in the House. Among other things, these 
     rules designated the period from January 3 of one year 
     through January 2 of the following year as the FMLA ``leave 
     year'' for all employers of the House. (The term ``leave 
     year'' is used here to refer to the 12-month period within 
     which the 12 weeks of leave may be taken.) This regulation 
     has been retained by the Committee on House Oversight. 
     However, section 502 of the FMLA, upon which the House 
     regulations were based, is repealed by the CAA effective 
     January 23, 1996.
        With this as background, the ANPRM posed the following 
     question: whether there is ``good cause'' to believe that 
     designating a uniform FMLA leave year would be ``more 
     effective'' for implementation of the rights and protections 
     of the CAA than the regulations promulgated by the Secretary. 
     The Secretary's regulations provide considerable freedom to 
     employers to designate the 12-month period appropriate to 
     their office.
        Several commenters supported the use of a uniform leave 
     year, and urged the Board to retain a uniform year in its 
     rules, at least for the House. Other commenters disagreed.
       Favoring the uniform leave year:
       Certain commenters argued that the January 3 through 
     January 2 period is based on the maximum two year employment 
     period in the House, which comes to a discrete end at the 
     conclusion of each Congress. Because this two-year employment 
     cycle is unique to the House, the Board's regulations should 
     ``retain'' the current, uniform manner in which FMLA is 
     applied to the House, as a more effective way to implement 
     the FMLA than the various options for defining leave years 
     available under the Secretary's regulations. Furthermore, the 
     uniform leave year is much easier to implement and 
     understand, so that employees are less likely to lose their 
     rights.
       Another commenter pointed out that joint employment is very 
     common in Congress, and argued that applying different leave 
     years will cause administration to be problematic.
       Opposing a uniform leave year:
       Other commenters were doubtful of the need for the Board to 
     establish a uniform leave year for the House, and saw no 
     reason why employing offices should be denied flexibility.
       Another commenter clearly took a position opposed to 
     establishing a uniform leave year for the Senate. Each 
     employing office should be allowed to choose any method 
     allowed by the Secretary's regulations, and there is no 
     ``good cause'' to restrict employers' choice.
       The Board recognizes that the use of a uniform leave year 
     may have advantages. However, there is also value in allowing 
     employing offices the flexibility to apply a leave year that 
     is appropriate to the office's circumstances.
       Much of the advantage of a uniform leave year, as described 
     by the commenters, involves making the FMLA program easier 
     for the employing offices and for the House payroll and 
     administrative offices to administer. However, nothing in the 
     FMLA, as applied by the CAA, or in the regulations being 
     proposed by the Board thereunder, would forbid the House from 
     retaining these benefits by retaining its uniform leave year 
     under the House's own authority. Under the FMLA and the 
     Secretary's regulations, each employer is free to select a 
     leave year. The Board is unaware of anything in the FMLA or 
     the Secretary's regulations that would forbid House employing 
     offices from establishing a uniform leave year for 
     themselves, either by voluntary agreement among employing 
     offices, or by establishing a uniform year under the House's 
     authority of self-regulation. (Senate employing offices 
     would, of course, also be free to consider a uniform leave 
     year for some or all Senate employing offices, if they so 
     desire.)
        The Board also recognizes that use of a uniform leave year 
     may provide some benefits and protections for eligible 
     employees. When employees transfer from one employing office 
     to another, or when they work simultaneously for more than 
     one employing office, the application of different leave 
     years by different employing offices could cause confusion 
     and, in some circumstances, could limit flexibility by 
     forcing an employee to fit leave within the constraints of 
     differently defined years. This concern is discussed below, 
     under the topic of whether the 

[[Page S 17630]]
     use of different leave years would affect FMLA leave rights. As noted, 
     when an employee works jointly for two or more employing 
     offices that apply inconsistent leave years, the employing 
     offices will have to apply a single leave year for the 
     employee.
        For these reasons, the Board does not believe that there 
     is good cause to mandate a uniform leave year.
      6. Should the definitions of ``joint employer'', 
         ``integrated employer'', or ``successor employer'' be 
         retained or modified?
        In the ANPRM, the Board explained that, under certain 
     circumstances under the Secretary's FMLA regulations, two or 
     more employers of the same employee may be treated as a 
     single employer. The concepts under which this may be done 
     are set forth within the provisions applicable to ``joint 
     employers'', ``integrated employers'', and ``successor 
     employers.''
        Accordingly, the ANPRM asked for comment regarding: 
     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.
        Commenters offered several varying proposals on how these 
     definitions should be modified.
       One commenter suggested that, where an employee works 
     concurrently for more than one employing office, the 
     employing offices might jointly decide which of the employing 
     offices will be designated the ``primary'' employer for 
     purposes of FMLA compliance.
       Another commenter suggested that ``joint employment'' will 
     occur in the House where an employee is under the actual 
     direction and control of a Member, even if another employing 
     authority, such as a committee, performs a ministerial 
     function with respect to payroll administration.
       A commenter stated that no two employing offices in the 
     Senate are ever ``under common control''. A ``joint 
     employer'' relationship was said to exist in the Senate in 
     only three situations: (a) an employee supplied by a 
     temporary or leasing agency or supplied by another agency on 
     detail, (b) working in two Senators' joint home office, or 
     (c) working on common issues or other matters for more 
     than one employing office. Where there is no ``primary'' 
     employer, all must designate a single leave year for all 
     of their joint employees. The commenter also stated that 
     the concepts of integrated employer and successors in 
     interest are not applicable to the Senate.
       Another commenter suggested that, in the case of joint 
     employment, reinstatement rights should apply with respect to 
     both joint employers.
       Finally, a commenter suggested that the Board should adopt 
     the Department of Labor's regulations and allow each 
     employing office to interpret them.
        Integrated employer. The Secretary's regulations use the 
     term ``integrated employers'' to refer to employers that are 
     so closely connected that they are deemed a single entity. 
     Under these regulations, whether employers are an 
     ``integrated employer'' is determined by review of the entire 
     relationship, and the factors to be considered ``include': 
     (i) common management, (ii) interrelation between operations, 
     (iii) centralized control of labor relations, and (iv) common 
     ownership/financial control.
       If two employing offices were to be considered an 
     ``integrated employer'' under the FMLA as applied by the CAA, 
     employee eligibility and employer coverage would not be 
     affected because employing offices are covered regardless of 
     size, and employees'' months and hours worked for any 
     employing offices are aggregated for determining eligibility. 
     However, being deemed an ``integrated employer'' may have 
     implications for the determining employing offices'' 
     compliance obligations, so the concept of ``integrated 
     employer'' should not be discarded as irrelevant.
        The first three criteria listed in the Secretary's 
     regulation--i.e., common management, interrelated operations, 
     and centralized control of labor relations--appear to be 
     clearly relevant and appropriate to determining whether two 
     or more offices should be considered a single employing 
     office. One commenter argued that the fourth criterion--
     common ownership/financial control--is foreign to the Senate. 
     The Board agrees that ``common ownership'' is inapplicable to 
     employing offices and their employees, and proposes not to 
     adopt it. ``Financial control'' would probably not be 
     applicable to employing offices in ordinary circumstances, 
     but, in light of the fact that this criterion might prove to 
     be useful in dealing with some unanticipated circumstance, 
     the Board sees no need to omit this criterion.
        For these reasons, the Board does not believe that there 
     is good cause to omit the regulation on ``integrated 
     employer,'' and the Board proposes only to delete the 
     reference to ``common ownership'' from the regulation.
       Successor in interest. Like the ``integrated employer'' 
     provision, the ``successor in interest'' concept has no 
     implications for whether employees are eligible or employing 
     offices are covered. However, some situations may arise where 
     the concept of successorship will be relevant. For example, 
     if committee jurisdictions are restructured, it may be 
     necessary to determine which, if any, of the surviving 
     committees is the ``successor in interest'' to the former 
     committee. Thus, determining the successor may be important 
     in determining whether a remaining committee must grant leave 
     for an eligible employee who provided adequate notice to the 
     former committee, or must continue leave begun while an 
     employee was employed by the former committee.
       The concept of ``successor in interest'' is developed in 
     section 825.107 of the Secretary's regulations. The 
     regulations state that a determination of whether a 
     ``successor in interest'' exists is determined by the 
     ``entire circumstances * * * viewed in their totality''. The 
     regulation also states: ``The factors to be considered 
     include: (1) Substantial continuity of the same business 
     operations; (2) Use of the same plant; (3) Continuity of the 
     work force; (4) Similarity of jobs and working conditions; 
     (5) Similarity of supervisory personnel; (6) Similarity of 
     machinery, equipment, and production methods; (7) Similarity 
     of products or services; and (8) The ability of the 
     predecessor to provide relief.''
        The Board is concerned that several of the factors listed 
     in 29 C.F.R. Sec. 825.107 are largely inapplicable. Except 
     for a few shops, employing offices do not have ``business 
     operations''. Few employing offices have a ``plant'', 
     ``machinery, equipment, and production methods'' or 
     ``products or services''. Accordingly, the Board proposes not 
     to adopt Sec. 825.107 of the Secretary's regulations. 
     Although the Board would wish to provide guidance on how the 
     concept of ``successor employer'' would be applied under the 
     CAA, it is impossible at this point to foresee how 
     successorship will arise in the unique context of employing 
     offices covered under the CAA. Accordingly, the 
     determinations as to successorship may be addressed in future 
     rulemaking or in case-by-case adjudication. In the latter 
     situation, litigants may raise the question of successorship, 
     and the Board would expect that common-law or other 
     recognized principles of successorship might be considered or 
     applied by the hearing officer, the Board, or a court.
        Joint employers. The ``joint employer'' definition also 
     would not affect employee eligibility, because hours of work 
     are aggregated for eligibility purposes. However, the concept 
     of joint employment is important for determining which 
     employing office or employing offices have responsibility for 
     FMLA compliance. The Board proposes that the regulatory 
     section on joint employment can be adopted with relatively 
     little revision. Examples of joint employment described in 
     comments could be appropriately evaluated with reference to 
     the criteria set forth in the regulation. For example, where 
     an employee on a committee payroll is under the actual 
     direction and control of a Member of the House of 
     Representatives or a Senator, it may be relevant to consider 
     whether the committee is acting ``in the interest of'' the 
     Member's or Senator's personal office in relation to the 
     employee, or whether the committee and the personal office 
     are under ``common control'' with respect to the employee's 
     employment. (See Sec. Sec. 825.106(a)(2)-(3) of these 
     proposed regulations.) The Board therefore proposes to add to 
     the regulation a reference to examples of joint employment 
     proposed in comments.
       Finally, the Board acknowledges the view expressed by some 
     commenters, that there may not be a primary employer in every 
     instance of joint employment, and that joint employers 
     should, by agreement, designate which single employing office 
     will be responsible for compliance with FMLA obligations with 
     respect to the joint employee. However, any such agreement 
     cannot relieve the other joint employing offices of any 
     FMLA responsibilities that are not fulfilled.
     7. Whether the use of different leave years by different 
         employing offices would affect the FMLA leave rights of 
         ``eligible employees'' who are employed by more than one 
         employing office?
       Finally, the Board in the ANPRM recognized that a uniform 
     leave year might not be required under Board regulations, and 
     therefore asked for comment whether the lack of uniformity 
     could jeopardize employees' leave rights. The Board suggested 
     that this question be considered in light of the definition 
     of ``joint employer'', ``integrated employer'', and 
     ``successor employer''.
       A commenter distinguished the situation of joint employment 
     from the situation of independent employment. In the case of 
     joint employment, if there is no primary employer, all of the 
     employers must jointly designate a leave year for the joint 
     employees. If an employee works at separate times for 
     separate, independent employers, the employers may designate 
     different leave years without depriving the employee of any 
     FMLA rights. If an employee moves from joint employment to 
     become employed by only one of the employers, or moves from 
     being employed by one employer to being employed by that and 
     another employer jointly, and if the applicable leave year 
     therefore changes, the procedure under Sec. 825.200(d)(1) 
     would apply. (Under this section, when an employer chooses to 
     shift from one leave year to another, the employee is 
     authorized to take advantage of whichever leave year is more 
     beneficial.)
       A commenter suggested that the regulations should authorize 
     joint House employing offices to designate which one will be 
     the ``primary'' employer responsible for fulfilling FMLA 
     responsibilities.
       Furthermore, as noted above, commenters argued that a 
     uniform leave year is easier to understand, so that employees 
     are less likely 

[[Page S 17631]]
     to lose their FMLA rights through inadvertence or otherwise, and that, 
     if employing offices adopt different leave years, 
     administration of the FMLA requirements would be problematic.
       The Board recognizes that the use of inconsistent leave 
     years may make implementation of FMLA provisions of the CAA 
     more complicated, and might have some impact on employees who 
     transfer from one employing office to another or who work 
     independently for more than one employing office. However, 
     where an employee is employed jointly by employing offices 
     that ordinarily use different leave years, commenters 
     suggested that the joint employers either (1) designate one 
     employer whose leave year will apply, or (2) jointly 
     designate an applicable leave year. Another commenter 
     suggested that, where an employee transfers between being 
     jointly employed and being employed by only one of the 
     employing offices, the procedures under Sec. 825.200(d)(1) 
     could apply. These approaches would not appear to raise 
     difficulties, provided the employee's FMLA entitlement is not 
     compromised.
       In light of these considerations, the Board does not 
     believe that there is good cause to modify the Secretary's 
     regulations with respect to the possibility that different 
     employing offices will apply different leave years.

                        C. Other drafting issues

       Finally, in developing the regulations proposed in this 
     notice, in addition to the policy issues discussed above, the 
     Board considered the following drafting issues:
       1. Worksite eligibility. Section 101(2)(B)(ii) of the FMLA 
     denies eligibility to any employee at a worksite where the 
     employer employs less than 50 employees if the total number 
     of employees employed within a 75-mile radius is less than 
     50. This criterion is a ``size limitation'' that, under 
     section 225(f)(2) of the CAA, does not apply under the CAA. 
     Accordingly, a number of regulatory provisions relating to 
     this worksite eligibility criterion are not included in the 
     regulations proposed by the Board. These omitted provisions 
     include some or all of 29 C.F.R. Sec. Sec. 825.105, 
     825.106(d), 825.110(a)(3), 825.110(f), 825.111, 825.206(c), 
     825.220(b)(1).
       2. State and local law. The Department of Labor's 
     regulations contain numerous provisions that address or touch 
     upon the relationship between the FMLA and State or local law 
     addressing leave or related matters. Since State and local 
     law do not govern the employment relationship of covered 
     employees and employing offices, these references to State 
     and local law are omitted from the regulations being proposed 
     by the Board. These omitted provisions include some or all of 
     29 C.F.R. Sec. Sec. 825.200(d)(2), 825.201, 825.202(c), 
     825.204(b), 825.206(c), 825.701, and other sections.
       3. Consideration of periods before the CAA effective date. 
     The CAA takes effect on January 23, 1996. Under the 
     Secretary's regulations implementing FMLA, employment with a 
     covered employer before the effective date of the FMLA 
     (August 5, 1993) is to be counted in determining whether an 
     employee is ``eligible'' for FMLA leave. 29 C.F.R. 
     Sec. 825.102. Similarly, the Secretary's regulations provide 
     that leave starting on and after the FMLA effective date is 
     considered FMLA leave which can be counted against an 
     employee's 12-week entitlement. Such leave is qualifying 
     under the FMLA even if the event occasioning the need for 
     leave (e.g., the birth of a child) occurred before the 
     effective date. 29 C.F.R. Sec. 825.103. See also 29 C.F.R. 
     Sec. 825.200(b)(4).
       The proposed regulations adopt the Secretary's general 
     approach regarding the effective date; however, the 
     applicable effective dates for application of the rights and 
     protections of the FMLA in the Congress are somewhat more 
     complicated. The CAA, and its application of the rights and 
     protections of the FMLA, takes effect on January 23, 1996. 
     Section 202(e)(1) of the CAA. However, certain rights and 
     protections of the FMLA applied to employees of the House of 
     Representatives, the Senate, and certain employees of 
     congressional instrumentalities under Title V of the FMLA, 
     effective August 5, 1993. The proposed regulations harmonize 
     these preexisting applications of FMLA rights and protections 
     with application of those rights and protections under the 
     CAA.
       The proposed regulations state that an employing office 
     must consider periods of employment before January 23, 1996 
     when determining if its employees are eligible for leave. 
     Similarly, a covered employee is entitled to FMLA leave if 
     the reason for the leave is qualifying under the FMLA as made 
     applicable by the CAA, even if the event occasioning the 
     leave (such as the birth of a child) occurred before January 
     23, 1996. However, leave taken before January 23, 1996, if it 
     was FMLA-qualifying leave taken from an employing office 
     subject to Title V of the FMLA, may be counted against the 
     employee's leave entitlement after January 23, 1996. See 
     Sec. Sec. 825.102(b), 825.103, 825.200(b)(4).
       The Board is cognizant of the principle that agencies may 
     not promulgate regulations which have a retroactive effect 
     unless expressly authorized by the enabling statute. Landgraf 
     v. USI Film Products, 114 S.Ct. 1483, 1496 (1994). However, 
     the Board concludes that consideration of periods of 
     employment and events prior to the effective date of the CAA 
     under the sections of the proposed regulations cited above 
     does not constitute a retroactive application of the CAA. 
     Unlike retroactive regulations, which ``impair rights a party 
     possessed when he acted, increase a party's liability for 
     past conduct, or impose new duties with respect to 
     transactions already completed,'' 114 S.Ct. 1505, these 
     regulations simply ``alter the future legal effect of past 
     transactions--so-called secondary retroactivity,'' which does 
     not violate the presumption against retroactivity. 114 S.Ct. 
     at 1526 n.3 (Scalia, J. concurring). The regulations do not 
     penalize an employing office for a refusal to grant an FMLA 
     leave prior to the effective date of the CAA. They only state 
     that employment and events occurring prior to the effective 
     date of the CAA may be considered in determining the 
     employer's obligation to honor a leave request on or after 
     the effective date.
       4. Minimally paid leave in the Senate. A commenter 
     explained that the Senate currently provides minimally paid 
     leave rather than unpaid leave under title V of the FMLA. The 
     Secretary's regulations authorize providing greater benefits 
     or pay than is required under the FMLA, and providing greater 
     benefits and pay does not prevent the leave from being 
     considered FMLA-qualifying leave. See section 825.700. 
     Accordingly, the Board does not believe that the situation of 
     minimally paid leave by the Senate needs to be addressed in 
     the proposed regulations.
       5. Local educational agencies and private elementary and 
     secondary schools. Section 108 of the FMLA provides special 
     rules for local educational agencies and for private 
     elementary and secondary schools. Section 108 was not 
     expressly referenced in section 202 of the CAA. However, the 
     Board believes that section 108 establishes exemptions from 
     certain requirements of those FMLA sections that are 
     referenced in section 202. The provisions of section 108 
     therefore apply pursuant to section 225(f)(1) of the CAA. 
     Accordingly, regulations implementing section 108 are 
     included in the regulations being proposed by the Board.
       6. Notices other than by posting of notices. As discussed 
     above, the Board is not proposing regulations on the posting 
     of notices because the statutory authority in the FMLA 
     requiring notice posting was not incorporated into the CAA. 
     However, the Board is proposing to adopt several regulations, 
     based on the Secretary's regulations, that require both 
     employing office and employees to provide notices to each 
     other. The Board is proposing to adopt these notification 
     requirements because they are based on regulations that the 
     Secretary promulgated to implement section 101 through 105 of 
     the FMLA, which are incorporated into the CAA.
       For example, section 103(a) of the FMLA authorizes the 
     employer to require that a request for leave be supported by 
     a medical certification. This requirement is implemented by 
     section 825.305 of the Secretary's regulations, which 
     provides for the employer to give notice of any such 
     requirement. Another example is FMLA section 104(a)(4), which 
     authorizes an employer to have a uniformly applied ``practice 
     or policy'' that requires employees to provide certification 
     of fitness for duty upon returning from leave. The 
     Secretary's regulations at section 825.310(e) require that, 
     as part of a notice given to each employee who advises the 
     employer of need for FMLA leave, the employer must advise the 
     employee if a fitness-for-duty certification will be 
     required. Furthermore, this section requires that, if the 
     employer has an employee handbook, the employer must include 
     in the handbook an explanation of the employer's general 
     policy regarding any requirement for fitness-for-duty 
     certification.
       Section 825.301 of the Secretary's regulations requires the 
     employer to provide a number of these notices in two 
     consolidated formats. Under paragraph (b), the employer must 
     provide a notice to each employee who informs the employer of 
     need to take FMLA leave. This notice must inform the employee 
     of whether the employee designates the leave as qualifying 
     for FMLA leave, whether the employer requires certification 
     of a health care provider, and numerous other matters. 
     Paragraph (a) requires the employer to provide information on 
     FMLA rights and responsibilities, together with a statement 
     of the employer's policies regarding FMLA, as part of the 
     employee handbook, if any. If there is no such handbook, the 
     employer must include this information with the notice 
     provided to employees who give notice that they need FMLA 
     leave.
       A Senate commenter suggested that paragraph (b) should not 
     be adopted by the Board because there is no requirement in 
     the FMLA, as incorporated in the CAA, for the employer to 
     provide such notice. However, the Board believes that these 
     notification requirements implement the general rights and 
     protections of sections 101 through 105, which are 
     incorporated in the CAA. The Board is not aware of good cause 
     why these requirements should be excluded from the 
     regulations under the CAA.
       7. Medical and other benefits. In Sec. 825.209(a), in the 
     definition of group health plans, the proposed regulations 
     include an added reference to the Federal Employee Health 
     Benefits Program, which applies to many covered employees. 
     The Secretary's regulations identified certain laws governing 
     benefits that may impose requirements above and beyond those 
     of FMLA. However, other benefit requirements apply to covered 
     employees and employing offices under federal statute and 
     under rules and practices of the House, Senate, and 
     Congressional instrumentalities. The Board sees no need to 
     conform the FMLA regulations to the various laws and rules 
     that govern employee benefits. Instead, the Board proposes to 
     add to the regulations 

[[Page S 17632]]
     an explicit recognition that there may be other applicable laws. E.g., 
     proposed Sec. Sec. 825.209(f), 825.309(b). However, covered 
     employees and employing offices must understand that these 
     regulations do not set forth all applicable requirements 
     regarding benefits for covered employees on leave. Other 
     sources must be consulted to determine applicable laws and 
     rules other than those applied by the CAA. The Board is not 
     aware of any way in which laws or rules applicable to covered 
     employees may interfere with the power of employing offices 
     to fully comply with the requirements of the FMLA.
       Furthermore, a commenter suggested that certain regulatory 
     provisions regarding payment and reimbursement of insurance 
     premiums should refer to the Senate as well as, or instead 
     of, to the employing office. The Board understands that such 
     financial transactions are not undertaken by Senate employing 
     offices directly. This reality is briefly acknowledged in an 
     introductory explanatory provision, at Sec. 825.100(b). 
     However, the CAA makes the employing office responsible for 
     assuring that all requirements of the FMLA, as applied by the 
     CAA, are complied with. For this reason, the disbursing or 
     other administrative office of the Senate may be viewed as 
     functioning as an agent for the employing office, and the 
     Board does not believe that the regulatory requirements need 
     to be modified to refer to the Senate directly.
       Regarding another of the Secretary's regulations, the 
     commenter suggested that a reference to ``the insurer'' 
     should be deleted and replaced with a reference to the 
     Senate. The Board recognizes that, in some situations, the 
     Senate may serve as the intermediary between the employee and 
     the insurer. In such circumstances, the employee would make 
     arrangements with the insurer by means of making arrangements 
     with the Senate. Accordingly, the Board does not believe that 
     this suggested change is necessary.
       The proposed regulations also omit, as inapplicable, a 
     section on multi-employer health plans (Sec. 825.211) and a 
     reference to the Employee Retirement Income Security Act of 
     1974 (ERISA) (in Sec. 825.215(d)).
       8. Charging leave taken from a prior employing office 
     against the employee's FMLA entitlement. A commenter urged 
     that the Board's regulations should make it clear that, even 
     when an employee transfers from one employing office to 
     another, the employee does not become entitled to more than 
     12 weeks of leave in the applicable 12-month period.
       To clarify this point, the Board proposes to amend the 
     regulation that allows an employer to count an employee's 
     FMLA leave against the employee's remaining 12-week FMLA 
     entitlement. The existing Labor Department regulations 
     implicitly assume that an employer may designate leave as 
     FMLA leave and then count it against the employee's remaining 
     entitlement. However, the regulations do not address the 
     situation where FMLA leave taken from one employing office is 
     counted by a subsequent employing office against the 
     employee's total FMLA leave entitlement. This situation is 
     not addressed in the Department of Labor regulations, 
     because, in the private sector, no leave taken from a prior 
     employer is of any relevance to a subsequent employer. The 
     employee loses FMLA eligibility for at least 12 months after 
     changing jobs, so leave taken from the former employer will 
     be over 12 months old by the time the employee is eligible 
     for any leave from the new employer.
       Under the CAA, however, the employee remains eligible 
     notwithstanding the transfer to a new employing office. 
     Therefore, if the new employing office were not able to count 
     any FMLA leave taken in the preceding months against the 
     employee's entitlement, a covered employee could gain 
     multiple FMLA leave periods, in excess of the entitlement 
     under the FMLA, simply by repeatedly transferring from one 
     employing office to another. Accordingly, the Board believes 
     that good cause exists to clarify section 825.208 so that 
     leave designated as FMLA leave by one employing office may be 
     counted against the leave entitlement by other employing 
     offices.
       9. Definition of ``employer''. The definition of 
     ``employer'' under the FMLA is different and far more varied 
     than the definition of ``employer'' that applies under 
     section 202 of the CAA. Therefore, several provisions in 29 
     C.F.R. part 825 that define who is an ``employer'' have been 
     omitted. These include Sec. 825.104(a)-(b) (persons engaged 
     in or affecting commerce), Sec. 825.104.(c)(1) and (d) 
     (regarding corporations and persons acting for employers), 
     Sec. 825.108 (regarding ``public agencies''), Sec. 825.109 
     (regarding Federal agencies). References to ``public 
     agencies'', e.g., in section Sec. 825.209(a), and first part 
     of Sec. 825.207(i) (which addresses compensatory time off for 
     State and local employees), were also omitted.
       10. Business/financial terms. Part 825 of the Secretary's 
     regulations contain a number of references to business-
     related concepts--e.g., ``profit sharing'', ``business'', 
     ``firm'', ``plant'', ``company,'' ``stock option'', ``profit 
     sharing'', etc. These terms were omitted and, if the context 
     so required, were sometimes replaced with appropriate 
     corresponding terms such as ``employing office''.
       11. Persons other than covered employees and employing 
     offices. Section 202(a) of the CAA extends rights and 
     protections only to covered employees. Therefore, certain 
     provisions of the Secretary's regulations that would extend 
     beyond these categories, have been omitted. For example, 
     provisions that protect employees of contractors 
     (Sec. 825.216(b)) and employees of temporary agencies and 
     leasing agencies (Sec. 825.106) have been omitted because 
     such employees cannot be ``covered employees'' as that term 
     is defined in the CAA.
       Furthermore, section 105 of the FMLA, which prohibits 
     interference with FMLA rights and interference with FMLA 
     proceedings and inquiries, extends rights to persons who are 
     not employees and extends prohibitions to persons who are not 
     employers. The Secretary's regulations, at Sec. 825.220, do 
     likewise. To be consistent with the CAA, however, the 
     proposed regulations have been modified to extend rights and 
     protections only to covered employees, and to extend 
     prohibitions only to employing offices.
       12. Pre-existing collective bargaining agreements. Two 
     provisions of the Secretary's regulations refer to collective 
     bargaining agreements existing before the effective date of 
     the FMLA. Sections 825.102(b), 825.700(c). Because collective 
     bargaining agreements do not now exist within employing 
     offices that are subject to these proposed regulations, these 
     provisions have been omitted.
       13. Determinations as to who is a health care provider. 
     Section 101(6) of the FMLA defines ``health care provider'' 
     as including, in addition to certain authorized doctors, 
     ``Any other person determined by the Secretary to be capable 
     of providing health care services.'' This same requirement is 
     incorporated into the Secretary's regulations as section 
     825.118(a). The Board does not believe that this provision 
     for determinations by the Secretary should be adopted under 
     the CAA, because this provision would authorize enforcement 
     by the executive branch, which is not authorized under 
     section 225(f)(3) of the CAA. The Board therefore proposes to 
     modify this regulation to authorize the Office of Compliance 
     to certify health care professionals. However, the regulation 
     would require the Office to follow any decisions by the 
     Secretary granted to persons other than covered employees, 
     absent good cause for the Office to conclude otherwise.
       14. Enforcement procedures. Subpart D of the Secretary's 
     regulations describes the enforcement mechanisms available 
     under the FMLA. This has been replaced with a brief summary 
     and cross-reference to the claims procedures available under 
     the CAA.
       15. Effect on other applicable law. Section 825.702 
     provides the Secretary's views about the interaction between 
     FMLA and other applicable law. Because the nature of these 
     laws' application, if any, under the CAA is not the same as 
     their application discussed by the Secretary, certain 
     language has been omitted from the section.
       16. Definitions. In section 825.800, consistent with the 
     changes discussed above, several definitions were omitted as 
     inapplicable--e.g., Administrator, COBRA, Commerce, Person, 
     Public Agency, State. Two were added--CAA and covered 
     employee. And several were modified, including: eligible 
     employee, employee, and employer.

           D. Topics and organization of proposed regulations

       The regulations being proposed in this notice are organized 
     into subparts and sections that correspond to the subparts 
     and sections promulgated by the Secretary at 29 C.F.R. Part 
     825. These regulations are divided into eight subparts:
       Subpart A describes what the FMLA is and sets forth to whom 
     it applies under the CAA.
       Subpart B states what leave an employee is entitled to take 
     under the FMLA as made applicable by the CAA.
       Subpart C sets forth notice requirements, and states what 
     information an employing office may require of an employee.
       Subpart D refers to applicable enforcement mechanisms.
       Subpart E is reserved.
       Subpart F establishes special rules that apply to employees 
     of schools.
       Subpart G sets forth how other laws, employing office 
     practices, and collective bargaining agreements affect 
     employee rights under FMLA as made applicable by the CAA.
       Subpart H sets forth applicable definitions.
       Appendices included in the proposed regulations also 
     provide certain forms and prototype notices.

                         E. Method of approval

       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolution; and (3) the version of the proposed 
     regulations that shall apply to other covered employees and 
     employing offices be approved by the Congress by concurrent 
     resolution.
       Signed at Washington, D.C. on this 21st day of November, 
     1995.

                                                Glen D. Nager,

                                               Chair of the Board,
                                             Office of Compliance.

     Sec. 825.1 Purpose and scope

       (a) Section 202 of the Congressional Accountability Act 
     (CAA), 2 U.S.C. Sec. 1312, applies the rights and protections 
     of sections 101 through 105 of the Family and Medical Leave 
     Act of 1993 (FMLA), 29 U.S.C. 2611-2615, to certain employees 
     of the legislative branch.
       (b) This part 825 contains substantive regulations that the 
     Board of Directors of the Office of Compliance has adopted 
     pursuant to 

[[Page S 17633]]
     section 202 of the CAA. Section 202 provides that these substantive 
     regulations should generally be the same as the substantive 
     regulations promulgated by the Secretary of Labor to 
     implement sections 101 through 105 of the FMLA. (The CAA 
     allows these regulations to differ from the regulations 
     promulgated by the Secretary only insofar as the Board may 
     determine, for good cause shown, that a modification of such 
     regulations would be more effective for the implementation of 
     the rights and protections under section 202 of the CAA.) The 
     regulations promulgated by the Secretary to implement the 
     FMLA are found at 29 C.F.R. Part 825.
       (c) Under the CAA, the Board issues three separate bodies 
     of regulations to implement the FMLA as made applicable by 
     the CAA--one applying to the Senate and its employees, one 
     applying to the House of Representatives and its employees, 
     and one applying to other covered employees and employing 
     offices. This part 825 applies to [ 1 the Senate and 
     employees of the Senate/the House of Representatives and 
     employees of the House of Representatives/the following 
     employing offices and their employees: (1) the Capitol Guide 
     Service, (2) the Capitol Police, (3) the Congressional Budget 
     Office, (4) the Office of the Architect of the Capitol, (5) 
     the Office of the Attending Physician, (6) the Office of 
     Compliance, and (7) the Office of Technology Assessment].
     \1\ This bracketed language contains three versions of 
     regulatory language separated by slashes: the version for the 
     Senate and its employees, the version for the House of 
     Representatives and its employees, and the version for 
     Congressional instrumentalities and their employees, 
     respectively.
---------------------------------------------------------------------------


 Subpart A--What is the Family and Medical Leave Act, and to Whom Does 
          it Apply under the Congressional Accountability Act?

     Sec. 825.100 What is the Family and Medical Leave Act?

       (a) The Family and Medical Leave Act of 1993 (FMLA), as 
     made applicable by the Congressional Accountability Act 
     (CAA), allows ``eligible'' employees of an employing office 
     to take job-protected, unpaid leave, or to substitute 
     appropriate paid leave if the employee has earned or accrued 
     it, for up to a total of 12 workweeks in any 12 months 
     because of the birth of a child and to care for the newborn 
     child, because of the placement of a child with the employee 
     for adoption or foster care, because the employee is needed 
     to care for a family member (child, spouse, or parent) with a 
     serious health condition, or because the employee's own 
     serious health condition makes the employee unable to perform 
     the functions of his or her job (see Sec. 825.306(b)(4)). In 
     certain cases, this leave may be taken on an intermittent 
     basis rather than all at once, or the employee may work a 
     part-time schedule.
       (b) An employee on FMLA leave is also entitled to have 
     health benefits maintained while on leave as if the employee 
     had continued to work instead of taking the leave. If an 
     employee was paying all or part of the premium payments prior 
     to leave, the employee would continue to pay his or her share 
     during the leave period. The employing office or a disbursing 
     or other financial office of the House of Representatives or 
     the Senate may recover its share only if the employee does 
     not return to work for a reason other than the serious health 
     condition of the employee or the employee's immediate family 
     member, or another reason beyond the employee's control.
       (c) An employee generally has a right to return to the same 
     position or an equivalent position with equivalent pay, 
     benefits and working conditions at the conclusion of the 
     leave. The taking of FMLA leave cannot result in the loss of 
     any benefit that accrued prior to the start of the leave.
       (d) The employing office has a right to 30 days advance 
     notice from the employee where practicable. In addition, the 
     employing office may require an employee to submit 
     certification from a health care provider to substantiate 
     that the leave is due to the serious health condition of the 
     employee or the employee's immediate family member. Failure 
     to comply with these requirements may result in a delay in 
     the start of FMLA leave. Pursuant to a uniformly applied 
     policy, the employing office may also require that an 
     employee present a certification of fitness to return to work 
     when the absence was caused by the employee's serious health 
     condition (see Sec. 825.311(c)). The employing office may 
     delay restoring the employee to employment without such 
     certificate relating to the health condition which caused the 
     employee's absence.

     Sec. 825.101 What is the purpose of the FMLA?

       (a) FMLA is intended to allow employees to balance their 
     work and family life by taking reasonable unpaid leave for 
     medical reasons, for the birth or adoption of a child, and 
     for the care of a child, spouse, or parent who has a serious 
     health condition. The FMLA is intended to balance the demands 
     of the workplace with the needs of families, to promote the 
     stability and economic security of families, and to promote 
     national interests in preserving family integrity. It was 
     intended that the FMLA accomplish these purposes in a manner 
     that accommodates the legitimate interests of employers, and 
     in a manner consistent with the Equal Protection Clause of 
     the Fourteenth Amendment in minimizing the potential for 
     employment discrimination on the basis of sex, while 
     promoting equal employment opportunity for men and women.
       (b) The enactment of FMLA was predicated on two fundamental 
     concerns--the needs of the American workforce, and the 
     development of high-performance organizations. Increasingly, 
     America's children and elderly are dependent upon family 
     members who must spend long hours at work. When a family 
     emergency arises, requiring workers to attend to seriously-
     ill children or parents, or to newly-born or adopted infants, 
     or even to their own serious illness, workers need 
     reassurance that they will not be asked to choose between 
     continuing their employment, and meeting their personal and 
     family obligations or tending to vital needs at home.
       (c) The FMLA is both intended and expected to benefit 
     employers as well as their employees. A direct correlation 
     exists between stability in the family and productivity in 
     the workplace. FMLA will encourage the development of high-
     performance organizations. When workers can count on durable 
     links to their workplace they are able to make their own full 
     commitments to their jobs. The record of hearings on family 
     and medical leave indicate the powerful productive advantages 
     of stable workplace relationships, and the comparatively 
     small costs of guaranteeing that those relationships will not 
     be dissolved while workers attend to pressing family health 
     obligations or their own serious illness.

     Sec. 825.102 When are the FMLA and the CAA effective for the 
       Senate and its employees?

       (a) The rights and protection of sections 101 through 105 
     of the FMLA have applied to certain Senate employees and 
     certain employing offices of the Senate since August 5, 1993 
     (see section 501 of FMLA). The provisions of the CAA that 
     apply the rights and protections of the FMLA will become 
     effective on January 23, 1996.

     Sec. 825.102 When are the FMLA and the CAA effective for the 
       House of Representatives and its employees?

       (a) The rights and protection of sections 101 through 105 
     of the FMLA have applied to any employee in an employment 
     position and any employment authority of the House of 
     Representatives since August 5, 1993 (see section 502 of 
     FMLA). The provisions of the CAA that apply the rights and 
     protections of the FMLA will become effective for the House 
     of Representatives and its employees on January 23, 1996.

     Sec. 825.102 When are the FMLA and the CAA effective for the 
       employing offices covered by these regulations and their 
       employees?

       (a) The rights and protections of sections 101 through 105 
     of the FMLA already apply to certain employing offices 
     covered by these regulations and certain employees of these 
     employing offices (see, e.g., Title V of the FMLA, sections 
     501 and 502). The provisions of the CAA that apply the rights 
     and protections of the FMLA to the employing offices covered 
     by these regulations and their employees will become 
     effective on January 23, 1996.]
       (b) The period prior to the effective date of the 
     application of FMLA rights and protections under the CAA must 
     be considered in determining employee eligibility.

     Sec. 825.103 How does the FMLA, as made applicable by the 
       CAA, affect leave in progress on, or taken before, the 
       effective date of the CAA?

       (a) An eligible employee's right to take FMLA leave began 
     on the date that the rights and protections of the FMLA first 
     went into effect for the employing office and employee (see 
     Sec. 825.102(a)). Any leave taken prior to the date on which 
     the rights and protections of the FMLA first became effective 
     for the employing office from which the leave was taken may 
     not be counted for purposes of the FMLA as made applicable by 
     the CAA. If leave qualifying as FMLA leave was underway prior 
     to the effective date of the FMLA for the employing office 
     from which the leave was taken and continued after the FMLA's 
     effective date for that office, only that portion of leave 
     taken on or after the FMLA's effective date may be counted 
     against the employee's leave entitlement under the FMLA, as 
     made applicable by the CAA.
       (b) If an employing office-approved leave is underway when 
     the application of the FMLA by the CAA takes effect, no 
     further notice would be required of the employee unless the 
     employee requests an extension of the leave. For leave which 
     commenced on the effective date or shortly thereafter, such 
     notice must have been given which was practicable, 
     considering the foreseeability of the need for leave and the 
     effective date.
       (c) Starting on January 23, 1996, an employee is entitled 
     to FMLA leave under these regulations if the reason for the 
     leave is qualifying under the FMLA, as made applicable by the 
     CAA, even if the event occasioning the need for leave (e.g., 
     the birth of a child) occurred before such date (so long as 
     any other requirements are satisfied).

     Sec. 825.104 What employing offices are covered by these 
       regulations?

       (a) As used in the CAA, the term ``employing office'' 
     means--
       (1) the personal office of a Member of the House of 
     Representatives or of a Senator;
       (2) a committee of the House of Representatives or the 
     Senate or a joint committee;
       (3) any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or

[[Page S 17634]]

       (4) the Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Attending 
     Physician, the Office of Compliance, and the Office of 
     Technology Assessment.
       (b) The employing offices covered by the regulations in 
     this part are:
       [(1) the personal office of any Senator,
       (2) any committee of the Senate, and
       (3) any joint committee that employs any employee of the 
     Senate.
       (1) the personal office of any Member of the House of 
     Representatives,
       (2) any committee of the House of Representatives, and
       (3) any joint committee that employs any employee of the 
     House of Representatives.
       the offices listed in paragraph (a)(4) of this section.]
       (c) Separate entities will be deemed to be parts of a 
     single employer for purposes of the FMLA, as made applicable 
     by the CAA, if they meet the ``integrated employer'' test. A 
     determination of whether or not separate entities are an 
     integrated employer is not determined by the application of 
     any single criterion, but rather the entire relationship is 
     to be reviewed in its totality. Factors considered in 
     determining whether two or more entities are an integrated 
     employer include: (i) Common management; (ii) Interrelation 
     between operations; (iii) Centralized control of labor 
     relations; and (iv) Degree of common financial control.

     Sec. 825.105 [Reserved.]

     Sec. 825.106 How is ``joint employment'' treated under the 
       FMLA as made applicable by the CAA?

       (a) Where two or more employing offices exercise some 
     control over the work or working conditions of the employee, 
     the employing offices may be joint employers under FMLA, as 
     made applicable by the CAA. Where the employee performs work 
     which simultaneously benefits two or more employing offices, 
     or works for two or more employing offices at different times 
     during the workweek, a joint employment relationship 
     generally will be considered to exist in situations such as:
       (1) Where there is an arrangement between employing offices 
     to share an employee's services or to interchange employees;
       (2) Where one employing office acts directly or indirectly 
     in the interest of the other employing office in relation to 
     the employee; or
       (3) Where the employing offices are not completely 
     disassociated with respect to the employee's employment and 
     may be deemed to share control of the employee, directly or 
     indirectly, because one employing office controls, is 
     controlled by, or is under common control with the other 
     employing office.
       (b) A determination of whether or not a joint employment 
     relationship exists is not determined by the application of 
     any single criterion, but rather the entire relationship is 
     to be viewed in its totality. For example, joint employment 
     will ordinarily be found to exist when:
       (1) an employee, who is employed by an employing office 
     other than the personal office of a Member of the House of 
     Representatives or of a Senator, is under the actual 
     direction and control of the Member of the House of 
     Representatives or Senator;
       (2) two or more employing offices employ an individual to 
     work on common issues or other matters for both or all of 
     them; or
       (3) an employing office supplies an employee on detail to 
     another employing office.
       (c)(1) In joint employment relationships, only the 
     employing office that is the primary employer, if any, is 
     responsible for giving required notices to its employees, 
     providing FMLA leave, and maintenance of health benefits. 
     Factors considered in determining which employing office is 
     the ``primary'' employer include authority/responsibility to 
     hire and fire, assign/place the employee, make payroll, and 
     provide employment benefits.
       (2) When an employee is jointly employed by more than one 
     employing office, the employing offices may fulfill their 
     responsibilities under the FMLA, as made applicable by the 
     CAA, by arranging for these responsibilities to be performed 
     by any one employing office or by a centralized payroll 
     office. However, any such arrangement does not reduce any 
     responsibilities of any of the employing offices if any of 
     their responsibilities under the FMLA as made applicable by 
     the CAA is not fulfilled.
       (d) [Reserved.]
       (e) Job restoration is the primary responsibility of the 
     employing office that is the primary employer. The employing 
     office that is the secondary employer is, however, 
     responsible for accepting the employee returning from FMLA 
     leave. An employing office that is the secondary employer is 
     also responsible for compliance with the prohibited acts 
     provisions with respect to its employees. The prohibited acts 
     include prohibitions against interfering with an employee's 
     attempt to exercise rights under the FMLA as made applicable 
     by the CAA, or discharging or discriminating against an 
     employee for opposing a practice which is unlawful under 
     FMLA. An employing office that is the secondary employer will 
     be responsible for compliance with all of the provisions of 
     the FMLA, as made applicable by the CAA, with respect to its 
     regular, permanent workforce.

     Sec. 825.107 [Reserved.]

     Sec. 825.108 [Reserved.]

     Sec. 825.109 [Reserved.]

     Sec. 825.110 Which employees are ``eligible'' to take FMLA 
       leave under these regulations?

       (a) An employee [of the Senate / of the House of 
     Representatives / described in Sec. 825.1(c)] is an 
     ``eligible employee'' under these regulations if the employee 
     has been employed in any employing office for 12 months and 
     for at least 1,250 hours of employment during the previous 12 
     months.
       (b) The 12 months an employee must have been employed by 
     any employing office need not be consecutive months. If an 
     employee worked for two or more employing offices 
     sequentially, the time worked will be aggregated to determine 
     whether it equals 12 months. If an employee is maintained on 
     the payroll for any part of a week, including any periods of 
     paid or unpaid leave (sick, vacation) during which other 
     benefits or compensation are provided by the employer (e.g., 
     workers' compensation, group health plan benefits, etc.), the 
     week counts as a week of employment. For purposes of 
     determining whether intermittent/occasional/casual employment 
     qualifies as ``at least 12 months,'' 52 weeks is deemed to be 
     equal to 12 months.
       (c) If an employee was employed by two or more employing 
     offices, either sequentially or concurrently, the hours of 
     service will be aggregated to determine whether the minimum 
     of 1,250 hours has been reached. Whether an employee has 
     worked the minimum 1,250 hours of service is determined 
     according to the principles established under the Fair Labor 
     Standards Act (FLSA) for determining compensable hours of 
     work (see 29 C.F.R. Part 785). The determining factor is the 
     number of hours an employee has worked for one or more 
     employing offices. The determination is not limited by 
     methods of record-keeping, or by compensation agreements that 
     do not accurately reflect all of the hours an employee has 
     worked for or been in service to the employing office. Any 
     accurate accounting of actual hours worked may be used. For 
     this purpose, full-time teachers (see Sec. 825.800 for 
     definition) of an elementary or secondary school system, or 
     institution of higher education, or other educational 
     establishment or institution are deemed to meet the 1,250 
     hour test. An employing office must be able to clearly 
     demonstrate that such an employee did not work 1,250 hours 
     during the previous 12 months in order to claim that the 
     employee is not ``eligible'' for FMLA leave.
       (d) The determinations of whether an employee has worked 
     for any employing office for at least 1,250 hours in the past 
     12 months and has been employed by any employing office for a 
     total of at least 12 months must be made as of the date leave 
     commences. If an employee notifies the employing office of 
     need for FMLA leave before the employee meets these 
     eligibility criteria, the employing office must either 
     confirm the employee's eligibility based upon a projection 
     that the employee will be eligible on the date leave would 
     commence or must advise the employee when the eligibility 
     requirement is met. If the employing office confirms 
     eligibility at the time the notice for leave is received, the 
     employing office may not subsequently challenge the 
     employee's eligibility. In the latter case, if the employing 
     office does not advise the employee whether the employee is 
     eligible as soon as practicable (i.e., two business days 
     absent extenuating circumstances) after the date employee 
     eligibility is determined, the employee will have satisfied 
     the notice requirements and the notice of leave is considered 
     current and outstanding until the employing office does 
     advise. If the employing office fails to advise the employee 
     whether the employee is eligible prior to the date the 
     requested leave is to commence, the employee will be deemed 
     eligible. The employing office may not, then, deny the leave. 
     Where the employee does not give notice of the need for leave 
     more than two business days prior to commencing leave, the 
     employee will be deemed to be eligible if the employing 
     office fails to advise the employee that the employee is not 
     eligible within two business days of receiving the employee's 
     notice.
       (e) The period prior to the effective date of the 
     application of FMLA rights and protections under the CAA must 
     be considered in determining employee's eligibility.
       (f) [Reserved.]

     Sec. 825.111 [Reserved.]

     Sec. 825.112 Under what kinds of circumstances are employing 
       offices required to grant family or medical leave?

       (a) Employing offices are required to grant leave to 
     eligible employees:
       (1) For birth of a son or daughter, and to care for the 
     newborn child;
       (2) For placement with the employee of a son or daughter 
     for adoption or foster care;
       (3) To care for the employee's spouse, son, daughter, or 
     parent with a serious health condition; and
       (4) Because of a serious health condition that makes the 
     employee unable to perform the functions of the employee's 
     job.
       (b) The right to take leave under FMLA as made applicable 
     by the CAA applies equally to male and female employees. A 
     father, as well as a mother, can take family leave for the 
     birth, placement for adoption or foster care of a child.
       (c) Circumstances may require that FMLA leave begin before 
     the actual date of birth of a child. An expectant mother may 
     take FMLA leave pursuant to paragraph (a)(4) of this section 
     before the birth of the child for prenatal care or if her 
     condition makes her unable to work.
       (d) Employing offices are required to grant FMLA leave 
     pursuant to paragraph (a)(2) of 

[[Page S 17635]]
     this section before the actual placement or adoption of a child if an 
     absence from work is required for the placement for adoption 
     or foster care to proceed. For example, the employee may be 
     required to attend counseling sessions, appear in court, 
     consult with his or her attorney or the doctor(s) 
     representing the birth parent, or submit to a physical 
     examination. The source of an adopted child (e.g., whether 
     from a licensed placement agency or otherwise) is not a 
     factor in determining eligibility for leave for this purpose.
       (e) Foster care is 24-hour care for children in 
     substitution for, and away from, their parents or guardian. 
     Such placement is made by or with the agreement of the State 
     as a result of a voluntary agreement between the parent or 
     guardian that the child be removed from the home, or pursuant 
     to a judicial determination of the necessity for foster care, 
     and involves agreement between the State and foster family 
     that the foster family will take care of the child. Although 
     foster care may be with relatives of the child, State action 
     is involved in the removal of the child from parental 
     custody.
       (f) In situations where the employer/employee relationship 
     has been interrupted, such as an employee who has been on 
     layoff, the employee must be recalled or otherwise be re-
     employed before being eligible for FMLA leave. Under such 
     circumstances, an eligible employee is immediately entitled 
     to further FMLA leave for a qualifying reason.
       (g) FMLA leave is available for treatment for substance 
     abuse provided the conditions of Sec. 825.114 are met. 
     However, treatment for substance abuse does not prevent an 
     employing office from taking employment action against an 
     employee. The employing office may not take action against 
     the employee because the employee has exercised his or her 
     right to take FMLA leave for treatment. However, if the 
     employing office has an established policy, applied in a non-
     discriminatory manner that has been communicated to all 
     employees, that provides under certain circumstances an 
     employee may be terminated for substance abuse, pursuant to 
     that policy the employee may be terminated whether or not the 
     employee is presently taking FMLA leave. An employee may also 
     take FMLA leave to care for an immediate family member who is 
     receiving treatment for substance abuse. The employing office 
     may not take action against an employee who is providing care 
     for an immediate family member receiving treatment for 
     substance abuse.

     Sec. 825.113 What do ``spouse,'' ``parent,'' and ``son or 
       daughter'' mean for purposes of an employee qualifying to 
       take FMLA leave?

       (a) Spouse means a husband or wife as defined or recognized 
     under State law for purposes of marriage in the State where 
     the employee resides, including common law marriage in States 
     where it is recognized.
       (b) Parent means a biological parent or an individual who 
     stands or stood in loco parentis to an employee when the 
     employee was a son or daughter as defined in (c) below. This 
     term does not include parents ``in law''.
       (c) Son or daughter means a biological, adopted, or foster 
     child, a stepchild, a legal ward, or a child of a person 
     standing in loco parentis, who is either under age 18, or age 
     18 or older and ``incapable of self-care because of a mental 
     or physical disability.''
       (1) ``Incapable of self-care'' means that the individual 
     requires active assistance or supervision to provide daily 
     self-care in three or more of the ``activities of daily 
     living'' (ADLs) or ``instrumental activities of daily 
     living'' (IADLs). Activities of daily living include adaptive 
     activities such as caring appropriately for one's grooming 
     and hygiene, bathing, dressing and eating. Instrumental 
     activities of daily living include cooking, cleaning, 
     shopping, taking public transportation, paying bills, 
     maintaining a residence, using telephones and directories, 
     using a post office, etc.
       (2) ``Physical or mental disability'' means a physical or 
     mental impairment that substantially limits one or more of 
     the major life activities of an individual. Regulations at 29 
     C.F.R. Sec. 1630.2(h), (i), and (j), issued by the Equal 
     Employment Opportunity Commission under the Americans with 
     Disabilities Act (ADA), 42 U.S.C. 12101 et seq. define these 
     terms.
       (3) Persons who are ``in loco parentis'' include those with 
     day-to-day responsibilities to care for and financially 
     support a child or, in the case of an employee, who had such 
     responsibility for the employee when the employee was a 
     child. A biological or legal relationship is not necessary.
       (d) For purposes of confirmation of family relationship, 
     the employing office may require the employee giving notice 
     of the need for leave to provide reasonable documentation or 
     statement of family relationship. This documentation may take 
     the form of a simple statement from the employee, or a 
     child's birth certificate, a court document, etc. The 
     employing office is entitled to examine documentation such as 
     a birth certificate, etc., but the employee is entitled to 
     the return of the official document submitted for this 
     purpose.

     Sec. 825.114 What is a ``serious health condition'' entitling 
       an employee to FMLA leave?

       (a) For purposes of FMLA, ``serious health condition'' 
     entitling an employee to FMLA leave means an illness, injury, 
     impairment, or physical or mental condition that involves:
       (1) Inpatient care (i.e., an overnight stay) in a hospital, 
     hospice, or residential medical care facility, including any 
     period of incapacity (for purposes of this section, defined 
     to mean inability to work, attend school or perform other 
     regular daily activities due to the serious health condition, 
     treatment therefor, or recovery therefrom), or any subsequent 
     treatment in connection with such inpatient care; or
       (2) Continuing treatment by a health care provider. A 
     serious health condition involving continuing treatment by a 
     health care provider includes any one or more of the 
     following:
       (i) A period of incapacity (i.e., inability to work, attend 
     school or perform other regular daily activities due to the 
     serious health condition, treatment therefor, or recovery 
     therefrom) of more than three consecutive calendar days, and 
     any subsequent treatment or period of incapacity relating to 
     the same condition, that also involves:
       (A) Treatment two or more times by a health care provider, 
     by a nurse or physician's assistant under direct supervision 
     of a health care provider, or by a provider of health care 
     services (e.g., physical therapist) under orders of, or on 
     referral by, a health care provider; or
       (B) Treatment by a health care provider on at least one 
     occasion which results in a regimen of continuing treatment 
     under the supervision of the health care provider.
       (ii) Any period of incapacity due to pregnancy, or for 
     prenatal care.
       (iii) Any period of incapacity or treatment for such 
     incapacity due to a chronic serious health condition. A 
     chronic serious health condition is one which:
       (A) Requires periodic visits for treatment by a health care 
     provider, or by a nurse or physician's assistant under direct 
     supervision of a health care provider;
       (B) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       (C) May cause episodic rather than a continuing period of 
     incapacity (e.g., asthma, diabetes, epilepsy, etc.).
       (iv) A period of incapacity which is permanent or long-term 
     due to a condition for which treatment may not be effective. 
     The employee or family member must be under the 
     continuing supervision of, but need not be receiving 
     active treatment by, a health care provider. Examples 
     include Alzheimer's, a severe stroke, or the terminal 
     stages of a disease.
       (v) Any period of absence to receive multiple treatments 
     (including any period of recovery therefrom) by a health care 
     provider or by a provider of health care services under 
     orders of, or on referral by, a health care provider, either 
     for restorative surgery after an accident or other injury, or 
     for a condition that would likely result in a period of 
     incapacity of more than three consecutive calendar days in 
     the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
       (b) Treatment for purposes of paragraph (a) of this section 
     includes (but is not limited to) examinations to determine if 
     a serious health condition exists and evaluations of the 
     condition. Treatment does not include routine physical 
     examinations, eye examinations, or dental examinations. Under 
     paragraph (a)(2)(i)(B), a regimen of continuing treatment 
     includes, for example, a course of prescription medication 
     (e.g., an antibiotic) or therapy requiring special equipment 
     to resolve or alleviate the health condition (e.g., oxygen). 
     A regimen of continuing treatment that includes the taking of 
     over-the-counter medications such as aspirin, antihistamines, 
     or salves; or bed-rest, drinking fluids, exercise, and other 
     similar activities that can be initiated without a visit to a 
     health care provider, is not, by itself, sufficient to 
     constitute a regimen of continuing treatment for purposes of 
     FMLA leave.
       (c) Conditions for which cosmetic treatments are 
     administered (such as most treatments for acne or plastic 
     surgery) are not ``serious health conditions'' unless 
     inpatient hospital care is required or unless complications 
     develop. Ordinarily, unless complications arise, the common 
     cold, the flu, ear aches, upset stomach, minor ulcers, 
     headaches other than migraine, routine dental or orthodontia 
     problems, periodontal disease, etc., are examples of 
     conditions that do not meet the definition of a serious 
     health condition and do not qualify for FMLA leave. 
     Restorative dental or plastic surgery after an injury or 
     removal of cancerous growths are serious health conditions 
     provided all the other conditions of this regulation are met. 
     Mental illness resulting from stress or allergies may be 
     serious health conditions, but only if all the conditions of 
     this section are met.
       (d) Substance abuse may be a serious health condition if 
     the conditions of this section are met. However, FMLA leave 
     may only be taken for treatment for substance abuse by a 
     health care provider or by a provider of health care services 
     on referral by a health care provider. On the other hand, 
     absence because of the employee's use of the substance, 
     rather than for treatment, does not qualify for FMLA leave.
       (e) Absences attributable to incapacity under paragraphs 
     (a)(2) (ii) or (iii) qualify for FMLA leave even though the 
     employee or the immediate family member does not receive 
     treatment from a health care provider during the absence, and 
     even if the absence does not last more than three days. For 
     example, an employee with asthma may be unable to report for 
     work due to the onset of an asthma attack or because the 
     employee's 

[[Page S 17636]]
     health care provider has advised the employee to stay home when the 
     pollen count exceeds a certain level. An employee who is 
     pregnant may be unable to report to work because of severe 
     morning sickness.

     Sec. 825.115 What does it mean that ``the employee is unable 
       to perform the functions of the position of the employee''?

       An employee is ``unable to perform the functions of the 
     position'' where the health care provider finds that the 
     employee is unable to work at all or is unable to perform any 
     one of the essential functions of the employee's position 
     within the meaning of the Americans with Disabilities Act 
     (ADA), 42 U.S.C. 12101 et seq., and the regulations at 29 
     C.F.R. Sec. 1630.2(n)). An employee who must be absent from 
     work to receive medical treatment for a serious health 
     condition is considered to be unable to perform the essential 
     functions of the position during the absence for treatment. 
     An employing office has the option, in requiring 
     certification from a health care provider, to provide a 
     statement of the essential functions of the employee's 
     position for the health care provider to review. For purposes 
     of FMLA, the essential functions of the employee's position 
     are to be determined with reference to the position the 
     employee held at the time notice is given or leave commenced, 
     whichever is earlier.

     Sec. 825.116 What does it mean that an employee is ``needed 
       to care for'' a family member?

       (a) The medical certification provision that an employee is 
     ``needed to care for'' a family member encompasses both 
     physical and psychological care. It includes situations 
     where, for example, because of a serious health condition, 
     the family member is unable to care for his or her own basic 
     medical, hygienic, or nutritional needs or safety, or is 
     unable to transport himself or herself to the doctor, etc. 
     The term also includes providing psychological comfort and 
     reassurance which would be beneficial to a child, spouse or 
     parent with a serious health condition who is receiving 
     inpatient or home care.
       (b) The term also includes situations where the employee 
     may be needed to fill in for others who are caring for the 
     family member, or to make arrangements for changes in care, 
     such as transfer to a nursing home.
       (c) An employee's intermittent leave or a reduced leave 
     schedule necessary to care for a family member includes not 
     only a situation where the family member's condition itself 
     is intermittent, but also where the employee is only needed 
     intermittently--such as where other care is normally 
     available, or care responsibilities are shared with another 
     member of the family or a third party.

     Sec. 825.117 For an employee seeking intermittent FMLA leave 
       or leave on a reduced leave schedule, what is meant by 
       ``the medical necessity for'' such leave?

       For intermittent leave or leave on a reduced leave 
     schedule, there must be a medical need for leave (as 
     distinguished from voluntary treatments and procedures) and 
     it must be that such medical need can be best accommodated 
     through an intermittent or reduced leave schedule. The 
     treatment regimen and other information described in the 
     certification of a serious health condition (see 
     Sec. 825.306) meets the requirement for certification of the 
     medical necessity of intermittent leave or leave on a reduced 
     leave schedule. Employees needing intermittent FMLA leave or 
     leave on a reduced leave schedule must attempt to schedule 
     their leave so as not to disrupt the employing office's 
     operations. In addition, an employing office may assign an 
     employee to an alternative position with equivalent pay 
     and benefits that better accommodates the employee's 
     intermittent or reduced leave schedule.

     Sec. 825.118 What is a ``health care provider''?

       (a)(1) The term ``health care provider'' means:
       (i) A doctor of medicine or osteopathy who is authorized to 
     practice medicine or surgery (as appropriate) by the State in 
     which the doctor practices; or
       (ii) Any other person determined by the Office of 
     Compliance to be capable of providing health care services.
       (2) In making a determination referred to in subparagraph 
     (1)(ii), and absent good cause shown to do otherwise, the 
     Office of Compliance will follow any determination made by 
     the Secretary of Labor (under section 101(6)(B) of the FMLA) 
     that a person is capable of providing health care services, 
     provided the Secretary's determination was not made at the 
     request of a person who was then a covered employee.
       (b) Others ``capable of providing health care services'' 
     include only:
       (1) Podiatrists, dentists, clinical psychologists, 
     optometrists, and chiropractors (limited to treatment 
     consisting of manual manipulation of the spine to correct a 
     subluxation as demonstrated by X-ray to exist) authorized to 
     practice in the State and performing within the scope of 
     their practice as defined under State law;
       (2) Nurse practitioners, nurse-midwives and clinical social 
     workers who are authorized to practice under State law and 
     who are performing within the scope of their practice as 
     defined under State law;
       (3) Christian Science practitioners listed with the First 
     Church of Christ, Scientist in Boston, Massachusetts. Where 
     an employee or family member is receiving treatment from a 
     Christian Science practitioner, an employee may not object to 
     any requirement from an employing office that the employee or 
     family member submit to examination (though not treatment) to 
     obtain a second or third certification from a health care 
     provider other than a Christian Science practitioner except 
     as otherwise provided under applicable State or local law or 
     collective bargaining agreement.
       (4) Any health care provider from whom an employing office 
     or the employing office's group health plan's benefits 
     manager will accept certification of the existence of a 
     serious health condition to substantiate a claim for 
     benefits; and
       (5) A health care provider listed above who practices in a 
     country other than the United States, who is authorized to 
     practice in accordance with the law of that country, and who 
     is performing within the scope of his or her practice as 
     defined under such law.
       (c) The phrase ``authorized to practice in the State'' as 
     used in this section means that the provider must be 
     authorized to diagnose and treat physical or mental health 
     conditions without supervision by a doctor or other health 
     care provider.


subpart b--what leave is an employee entitled to take under the family 
    and medical leave act, as made applicable by the congressional 
                          accountability act?

     Sec. 825.200 How much leave may an employee take?

       (a) An eligible employee's FMLA leave entitlement is 
     limited to a total of 12 workweeks of leave during any 12-
     month period for any one, or more, of the following reasons:
       (1) The birth of the employee's son or daughter, and to 
     care for the newborn child;
       (2) The placement with the employee of a son or daughter 
     for adoption or foster care, and to care for the newly placed 
     child;
       (3) To care for the employee's spouse, son, daughter, or 
     parent with a serious health condition; and,
       (4) Because of a serious health condition that makes the 
     employee unable to perform one or more of the essential 
     functions of his or her job.
       (b) An employing office is permitted to choose any one of 
     the following methods for determining the ``12-month period'' 
     in which the 12 weeks of leave entitlement occurs:
       (1) The calendar year;
       (2) Any fixed 12-month ``leave year,'' such as a fiscal 
     year, a year required by State law, or a year starting on an 
     employee's ``anniversary'' date;
       (3) The 12-month period measured forward from the date any 
     employee's first FMLA leave begins; or,
       (c) Under methods in paragraphs (b)(1) and (b)(2) of this 
     section an employee would be entitled to up to 12 weeks of 
     FMLA leave at any time in the fixed 12-month period selected. 
     An employee could, therefore, take 12 weeks of leave at the 
     end of the year and 12 weeks at the beginning of the 
     following year. Under the method in paragraph (b)(3) of this 
     section, an employee would be entitled to 12 weeks of leave 
     during the year beginning on the first date FMLA leave is 
     taken; the next 12-month period would begin the first time 
     FMLA leave is taken after completion of any previous 12-month 
     period. Under the method in paragraph (b)(4) of this section, 
     the ``rolling'' 12-month period, each time an employee takes 
     FMLA leave the remaining leave entitlement would be any 
     balance of the 12 weeks which has not been used during the 
     immediately preceding 12 months. For example, if an employee 
     has taken eight weeks of leave during the past 12 months, an 
     additional four weeks of leave could be taken. If an employee 
     used four weeks beginning February 1, 1997, four weeks 
     beginning June 1, 1997, and four weeks beginning December 1, 
     1997, the employee would not be entitled to any additional 
     leave until February 1, 1998. However, beginning on February 
     1, 1998, the employee would be entitled to four weeks of 
     leave, on June 1 the employee would be entitled to an 
     additional four weeks, etc.
       (d)(1) Employing offices will be allowed to choose any one 
     of the alternatives in paragraph (b) of this section provided 
     the alternative chosen is applied consistently and uniformly 
     to all employees. An employing office wishing to change to 
     another alternative is required to give at least 60 days 
     notice to all employees, and the transition must take place 
     in such a way that the employees retain the full benefit of 
     12 weeks of leave under whichever method affords the greatest 
     benefit to the employee. Under no circumstances may a new 
     method be implemented in order to avoid the CAA's FMLA 
     leave requirements.
       (2) [Reserved.]
       (e) If an employing office fails to select one of the 
     options in paragraph (b) of this section for measuring the 
     12-month period, the option that provides the most beneficial 
     outcome for the employee will be used. The employing office 
     may subsequently select an option only by providing the 60-
     day notice to all employees of the option the employing 
     office intends to implement. During the running of the 60-day 
     period any other employee who needs FMLA leave may use the 
     option providing the most beneficial outcome to that 
     employee. At the conclusion of the 60-day period the 
     employing office may implement the selected option.
       (f) For purposes of determining the amount of leave used by 
     an employee, the fact that a holiday may occur within the 
     week taken as FMLA leave has no effect; the week is counted 
     as a week of FMLA leave. However, if for some reason the 
     employing office's activity has temporarily ceased and 
     employees generally are not expected to report for work for 
     one or more weeks (e.g., a school closing 

[[Page S 17637]]
     two weeks for the Christmas/New Year holiday or the summer vacation or 
     an employing office closing the office for repairs), the days 
     the employing office's activities have ceased do not count 
     against the employee's FMLA leave entitlement. Methods for 
     determining an employee's 12-week leave entitlement are also 
     described in Sec. 825.205.

     Sec. 825.201 If leave is taken for the birth of a child, or 
       for placement of a child for adoption or foster care, when 
       must the leave be concluded?

       An employee's entitlement to leave for a birth or placement 
     for adoption or foster care expires at the end of the 12-
     month period beginning on the date of the birth or placement, 
     unless the employing office permits leave to be taken for a 
     longer period. Any such FMLA leave must be concluded within 
     this one-year period.

     Sec. 825.202 How much leave may a husband and wife take if 
       they are employed by the same employing office?

       (a) A husband and wife who are eligible for FMLA leave and 
     are employed by the same employing office may be limited to a 
     combined total of 12 weeks of leave during any 12-month 
     period if the leave is taken:
       (1) for birth of the employee's son or daughter or to care 
     for the child after birth;
       (2) for placement of a son or daughter with the employee 
     for adoption or foster care, or to care for the child after 
     placement; or
       (3) to care for the employee's parent with a serious health 
     condition.
       (b) This limitation on the total weeks of leave applies to 
     leave taken for the reasons specified in paragraph (a) of 
     this section as long as a husband and wife are employed by 
     the ``same employing office.'' It would apply, for example, 
     even though the spouses are employed at two different 
     worksites of an employing office. On the other hand, if one 
     spouse is ineligible for FMLA leave, the other spouse would 
     be entitled to a full 12 weeks of FMLA leave.
       (c) Where the husband and wife both use a portion of the 
     total 12-week FMLA leave entitlement for one of the purposes 
     in paragraph (a) of this section, the husband and wife would 
     each be entitled to the difference between the amount he or 
     she has taken individually and 12 weeks for FMLA leave for a 
     purpose other than those contained in paragraph (a) of this 
     section. For example, if each spouse took 6 weeks of leave to 
     care for a healthy, newborn child, each could use an 
     additional 6 weeks due to his or her own serious health 
     condition or to care for a child with a serious health 
     condition.

     Sec. 825.203 Does FMLA leave have to be taken all at once, or 
       can it be taken in parts?

       (a) FMLA leave may be taken ``intermittently or on a 
     reduced leave schedule'' under certain circumstances. 
     Intermittent leave is FMLA leave taken in separate blocks of 
     time due to a single qualifying reason. A reduced leave 
     schedule is a leave schedule that reduces an employee's usual 
     number of working hours per workweek, or hours per workday. A 
     reduced leave schedule is a change in the employee's schedule 
     for a period of time, normally from full-time to part-time.
       (b) When leave is taken after the birth or placement of a 
     child for adoption or foster care, an employee may take leave 
     intermittently or on a reduced leave schedule only if the 
     employing office agrees. Such a schedule reduction might 
     occur, for example, where an employee, with the employing 
     office's agreement, works part-time after the birth of a 
     child, or takes leave in several segments. The employing 
     office's agreement is not required, however, for leave during 
     which the mother has a serious health condition in connection 
     with the birth of her child or if the newborn child has a 
     serious health condition.
       (c) Leave may be taken intermittently or on a reduced leave 
     schedule when medically necessary for planned and/or 
     unanticipated medical treatment of a related serious health 
     condition by or under the supervision of a health care 
     provider, or for recovery from treatment or recovery from a 
     serious health condition. It may also be taken to provide 
     care or psychological comfort to an immediate family member 
     with a serious health condition.
       (1) Intermittent leave may be taken for a serious health 
     condition which requires treatment by a health care provider 
     periodically, rather than for one continuous period of time, 
     and may include leave of periods from an hour or more to 
     several weeks. Examples of intermittent leave would include 
     leave taken on an occasional basis for medical appointments, 
     or leave taken several days at a time spread over a period of 
     six months, such as for chemotherapy. A pregnant employee may 
     take leave intermittently for prenatal examinations or for 
     her own condition, such as for periods of severe morning 
     sickness. An example of an employee taking leave on a reduced 
     leave schedule is an employee who is recovering from a 
     serious health condition and is not strong enough to work a 
     full-time schedule.
       (2) Intermittent or reduced schedule leave may be taken for 
     absences where the employee or family member is incapacitated 
     or unable to perform the essential functions of the position 
     because of a chronic serious health condition even if he or 
     she does not receive treatment by a health care provider.
       (d) There is no limit on the size of an increment of leave 
     when an employee takes intermittent leave or leave on a 
     reduced leave schedule. However, an employing office may 
     limit leave increments to the shortest period of time that 
     the employing office's payroll system uses to account for 
     absences or use of leave, provided it is one hour or less. 
     For example, an employee might take two hours off for a 
     medical appointment, or might work a reduced day of four 
     hours over a period of several weeks while recuperating from 
     an illness. An employee may not be required to take more FMLA 
     leave than necessary to address the circumstance that 
     precipitated the need for the leave, except as provided in 
     Sec. Sec. 825.601 and 825.602.

     Sec. 825.204 May an employing office transfer an employee to 
       an ``alternative position'' in order to accommodate 
       intermittent leave or a reduced leave schedule?

       (a) If an employee needs intermittent leave or leave on a 
     reduced leave schedule that is foreseeable based on planned 
     medical treatment for the employee or a family member, 
     including during a period of recovery from a serious health 
     condition, or if the employing office agrees to permit 
     intermittent or reduced schedule leave for the birth of a 
     child or for placement of a child for adoption or foster 
     care, the employing office may require the employee to 
     transfer temporarily, during the period the intermittent or 
     reduced leave schedule is required, to an available 
     alternative position for which the employee is qualified and 
     which better accommodates recurring periods of leave than 
     does the employee's regular position. See Sec. 825.601 for 
     special rules applicable to instructional employees of 
     schools.
       (b) Transfer to an alternative position may require 
     compliance with any applicable collective bargaining 
     agreement, and federal law (such as the Americans with 
     Disabilities Act). Transfer to an alternative position may 
     include altering an existing job to better accommodate the 
     employee's need for intermittent or reduced leave.
       (c) The alternative position must have equivalent pay and 
     benefits. An alternative position for these purposes does not 
     have to have equivalent duties. The employing office may 
     increase the pay and benefits of an existing alternative 
     position, so as to make them equivalent to the pay and 
     benefits of the employee's regular job. The employing office 
     may also transfer the employee to a part-time job with the 
     same hourly rate of pay and benefits, provided the employee 
     is not required to take more leave than is medically 
     necessary. For example, an employee desiring to take leave in 
     increments of four hours per day could be transferred to a 
     half-time job, or could remain in the employee's same job on 
     a part-time schedule, paying the same hourly rate as the 
     employee's previous job and enjoying the same benefits. The 
     employing office may not eliminate benefits which otherwise 
     would not be provided to part-time employees; however, an 
     employing office may proportionately reduce benefits such as 
     vacation leave where an employing office's normal practice is 
     to base such benefits on the number of hours worked.
       (d) An employing office may not transfer the employee to an 
     alternative position in order to discourage the employee from 
     taking leave or otherwise work a hardship on the employee. 
     For example, a white collar employee may not be assigned to 
     perform laborer's work; an employee working the day shift may 
     not be reassigned to the graveyard shift; an employee working 
     in the headquarters facility may not be reassigned to a 
     branch a significant distance away from the employee's normal 
     job location. Any such attempt on the part of the employing 
     office to make such a transfer will be held to be contrary to 
     the prohibited-acts provisions of the FMLA, as made 
     applicable by the CAA.
       (e) When an employee who is taking leave intermittently or 
     on a reduced leave schedule and has been transferred to an 
     alternative position no longer needs to continue on leave and 
     is able to return to full-time work, the employee must be 
     placed in the same or equivalent job as the job he/she left 
     when the leave commenced. An employee may not be required to 
     take more leave than necessary to address the circumstance 
     that precipitated the need for leave.

     Sec. 825.205 How does one determine the amount of leave used 
       where an employee takes leave intermittently or on a 
       reduced leave schedule?

       (a) If an employee takes leave on an intermittent or 
     reduced leave schedule, only the amount of leave actually 
     taken may be counted toward the 12 weeks of leave to which an 
     employee is entitled. For example, if an employee who 
     normally works five days a week takes off one day, the 
     employee would use 1/5 of a week of FMLA leave. Similarly, if 
     a full-time employee who normally works 8-hour days works 4-
     hour days under a reduced leave schedule, the employee would 
     use 1/2 week of FMLA leave each week.
       (b) Where an employee normally works a part-time schedule 
     or variable hours, the amount of leave to which an employee 
     is entitled is determined on a pro rata or proportional basis 
     by comparing the new schedule with the employee's normal 
     schedule. For example, if an employee who normally works 30 
     hours per week works only 20 hours a week under a reduced 
     leave schedule, the employee's ten hours of leave would 
     constitute one-third of a week of FMLA leave for each week 
     the employee works the reduced leave schedule.
       (c) If an employing office has made a permanent or long-
     term change in the employee's schedule (for reasons other 
     than FMLA, and prior to the notice of need for FMLA 

[[Page S 17638]]
     leave), the hours worked under the new schedule are to be used for 
     making this calculation.
       (d) If an employee's schedule varies from week to week, a 
     weekly average of the hours worked over the 12 weeks prior to 
     the beginning of the leave period would be used for 
     calculating the employee's normal workweek.

     Sec. 825.206 May an employing office deduct hourly amounts 
       from an employee's salary, when providing unpaid leave 
       under FMLA, as made applicable by the CAA, without 
       affecting the employee's qualification for exemption as an 
       executive, administrative, or professional employee, or 
       when utilizing the fluctuating workweek method for payment 
       of overtime, under the Fair Labor Standards Act?

       (a) Leave taken under FMLA as made applicable by the CAA 
     may be unpaid. If an employee is otherwise exempt from 
     minimum wage and overtime requirements of the Fair Labor 
     Standards Act (FLSA) as a salaried executive, administrative, 
     or professional employee under regulations issued by the 
     Board at [CAA regulations based on 29 CFR Part 541], 
     providing unpaid FMLA-qualifying leave to such an employee 
     will not cause the employee to lose the FLSA exemption. This 
     means that under regulations currently in effect, where an 
     employee meets the specified duties test, is paid on a salary 
     basis, and is paid a salary of at least the amount specified 
     in the regulations, the employing office may make deductions 
     from the employee's salary for any hours taken as 
     intermittent or reduced FMLA leave within a workweek, without 
     affecting the exempt status of the employee. The fact that an 
     employing office provides FMLA leave, whether paid or unpaid, 
     will not be relevant to the determination whether an employee 
     is exempt within the meaning of [CAA regulations based on 29 
     CFR Part 541].
       (b) For an employee paid in accordance with the fluctuating 
     workweek method of payment for overtime (see 29 CFR 778.114), 
     the employing office, during the period in which intermittent 
     or reduced schedule FMLA leave is scheduled to be taken, may 
     compensate an employee on an hourly basis and pay only for 
     the hours the employee works, including time and one-half the 
     employee's regular rate for overtime hours. The change to 
     payment on an hourly basis would include the entire period 
     during which the employee is taking intermittent leave, 
     including weeks in which no leave is taken. The hourly rate 
     shall be determined by dividing the employee's weekly salary 
     by the employee's normal or average schedule of hours 
     worked during weeks in which FMLA leave is not being 
     taken. If an employing office chooses to follow this 
     exception from the fluctuating workweek method of payment, 
     the employing office must do so uniformly, with respect to 
     all employees paid on a fluctuating workweek basis for 
     whom FMLA leave is taken on an intermittent or reduced 
     leave schedule basis. If an employing office does not 
     elect to convert the employee's compensation to hourly 
     pay, no deduction may be taken for FMLA leave absences. 
     Once the need for intermittent or reduced scheduled leave 
     is over, the employee may be restored to payment on a 
     fluctuating work week basis.
       (c) This special exception to the salary basis'' 
     requirements of the FLSA exemption or fluctuating workweek 
     payment requirements applies only to employees of covered 
     employing offices who are eligible for FMLA leave, and to 
     leave which qualifies as (one of the four types of) FMLA 
     leave. Hourly or other deductions which are not in accordance 
     with [CAA regulations based on 29 CFR Part 541] or 29 CFR 
     Sec. 778.114 may not be taken, for example, where the 
     employee has not worked long enough to be eligible for FMLA 
     leave without potentially affecting the employee's 
     eligibility for exemption. Nor may deductions which are not 
     permitted by [CAA regulations based on 29 CFR Part 541] or 29 
     CFR Sec. 778.114 be taken from such an employee's salary for 
     any leave which does not qualify as FMLA leave, for example, 
     deductions from an employee's pay for leave required under an 
     employing office's policy or practice for a reason which does 
     not qualify as FMLA leave, e.g., leave to care for a 
     grandparent or for a medical condition which does not qualify 
     as a serious health condition; or for leave which is more 
     generous than provided by FMLA as made applicable by the CAA, 
     such as leave in excess of 12 weeks in a year. The employing 
     office may comply with the employing office's own policy/
     practice under these circumstances and maintain the 
     employee's eligibility for exemption or for the fluctuating 
     workweek method of pay by not taking hourly deductions from 
     the employee's pay, in accordance with FLSA requirements, or 
     may take such deductions, treating the employee as an 
     ``hourly'' employee and pay overtime premium pay for hours 
     worked over 40 in a workweek.

     Sec. 825.207  Is FMLA leave paid or unpaid?

       (a) Generally, FMLA leave is unpaid. However, under the 
     circumstances described in this section, FMLA, as made 
     applicable by the CAA, permits an eligible employee to choose 
     to substitute paid leave for FMLA leave. If an employee does 
     not choose to substitute accrued paid leave, the employing 
     office may require the employee to substitute accrued paid 
     leave for FMLA leave.
       (b) Where an employee has earned or accrued paid vacation, 
     personal or family leave, that paid leave may be substituted 
     for all or part of any (otherwise) unpaid FMLA leave relating 
     to birth, placement of a child for adoption or foster care, 
     or care for a spouse, child or parent who has a serious 
     health condition. The term ``family leave'' as used in FMLA 
     refers to paid leave provided by the employing office 
     covering the particular circumstances for which the employee 
     seeks leave for either the birth of a child and to care for 
     such child, placement of a child for adoption or foster care, 
     or care for a spouse, child or parent with a serious health 
     condition. For example, if the employing office's leave plan 
     allows use of family leave to care for a child but not for a 
     parent, the employing office is not required to allow accrued 
     family leave to be substituted for FMLA leave used to care 
     for a parent.
       (c) Substitution of paid accrued vacation, personal, or 
     medical/sick leave may be made for any (otherwise) unpaid 
     FMLA leave needed to care for a family member or the 
     employee's own serious health condition. Substitution of paid 
     sick/medical leave may be elected to the extent the 
     circumstances meet the employing office's usual requirements 
     for the use of sick/medical leave. An employing office is not 
     required to allow substitution of paid sick or medical leave 
     for unpaid FMLA leave ``in any situation'' where the 
     employing office's uniform policy would not normally allow 
     such paid leave. An employee, therefore, has a right to 
     substitute paid medical/sick leave to care for a seriously 
     ill family member only if the employing office's leave plan 
     allows paid leave to be used for that purpose. Similarly, an 
     employee does not have a right to substitute paid medical/
     sick leave for a serious health condition which is not 
     covered by the employing office's leave plan.
       (d)(1) Disability leave for the birth of a child would be 
     considered FMLA leave for a serious health condition and 
     counted in the 12 weeks of leave permitted under FMLA as made 
     applicable by the CAA. Because the leave pursuant to a 
     temporary disability benefit plan is not unpaid, the 
     provision for substitution of paid leave is inapplicable. 
     However, the employing office may designate the leave as FMLA 
     leave and count the leave as running concurrently for 
     purposes of both the benefit plan and the FMLA leave 
     entitlement. If the requirements to qualify for payments 
     pursuant to the employing office's temporary disability plan 
     are more stringent than those of FMLA as made applicable by 
     the CAA, the employee must meet the more stringent 
     requirements of the plan, or may choose not to meet the 
     requirements of the plan and instead receive no payments from 
     the plan and use unpaid FMLA leave or substitute available 
     accrued paid leave.
       (2) The FMLA as made applicable by the CAA provides that a 
     serious health condition may result from injury to the 
     employee ``on or off'' the job. If the employing office 
     designates the leave as FMLA leave in accordance with 
     Sec. 825.208, the employee's FMLA 12-week leave entitlement 
     may run concurrently with a workers' compensation absence 
     when the injury is one that meets the criteria for a serious 
     health condition. As the workers' compensation absence is not 
     unpaid leave, the provision for substitution of the 
     employee's accrued paid leave is not applicable. However, if 
     the health care provider treating the employee for the 
     workers' compensation injury certifies the employee is able 
     to return to a ``light duty job'' but is unable to return to 
     the same or equivalent job, the employee may decline the 
     employing office's offer of a ``light duty job''. As a result 
     the employee may lose workers' compensation payments, but is 
     entitled to remain on unpaid FMLA leave until the 12-week 
     entitlement is exhausted. As of the date workers' 
     compensation benefits cease, the substitution provision 
     becomes applicable and either the employee may elect or the 
     employing office may require the use of accrued paid leave. 
     See also Sec. Sec. 825.210(f), 825.216(d), 825.220(d), 
     825.307(a)(1) and 825.702 (d)(1) and (2) regarding the 
     relationship between workers' compensation absences and FMLA 
     leave.
       (e) Paid vacation or personal leave, including leave earned 
     or accrued under plans allowing ``paid time off,'' may be 
     substituted, at either the employee's or the employing 
     office's option, for any qualified FMLA leave. No limitations 
     may be placed by the employing office on substitution of paid 
     vacation or personal leave for these purposes.
       (f) If neither the employee nor the employing office elects 
     to substitute paid leave for unpaid FMLA leave under the 
     above conditions and circumstances, the employee will remain 
     entitled to all the paid leave which is earned or accrued 
     under the terms of the employing office's plan.
       (g) If an employee uses paid leave under circumstances 
     which do not qualify as FMLA leave, the leave will not count 
     against the 12 weeks of FMLA leave to which the employee is 
     entitled. For example, paid sick leave used for a medical 
     condition which is not a serious health condition does not 
     count against the 12 weeks of FMLA leave entitlement.
       (h) When an employee or employing office elects to 
     substitute paid leave (of any type) for unpaid FMLA leave 
     under circumstances permitted by these regulations, and the 
     employing office's procedural requirements for taking that 
     kind of leave are less stringent than the requirements of 
     FMLA as made applicable by the CAA (e.g., notice or 
     certification requirements), only the less stringent 
     requirements may be imposed. An employee who complies with an 
     employing office's less 

[[Page S 17639]]
     stringent leave plan requirements in such cases may not have leave for 
     an FMLA purpose delayed or denied on the grounds that the 
     employee has not complied with stricter requirements of FMLA 
     as made applicable by the CAA. However, where accrued paid 
     vacation or personal leave is substituted for unpaid FMLA 
     leave for a serious health condition, an employee may be 
     required to comply with any less stringent medical 
     certification requirements of the employing office's sick 
     leave program. See Sec. Sec. 825.302(g), 825.305(e) and 
     825.306(c).
       (i) Compensatory time off, if any is authorized under 
     applicable law, is not a form of accrued paid leave that an 
     employing office may require the employee to substitute for 
     unpaid FMLA leave. The employee may request to use his/her 
     balance of compensatory time for an FMLA reason. If the 
     employing office permits the accrual to be used in compliance 
     with regulations, if any [CAA regulations on compensatory 
     time off, if any], the absence which is paid from the 
     employee's accrued compensatory time ``account'' may not be 
     counted against the employee's FMLA leave entitlement.

     Sec. 825.208 Under what circumstances may an employing office 
       designate leave, paid or unpaid, as FMLA leave and, as a 
       result, enable leave to be counted against the employee's 
       total FMLA leave entitlement?

       (a) In all circumstances, it is the employing office's 
     responsibility to designate leave, paid or unpaid, as FMLA-
     qualifying, and to give notice of the designation to the 
     employee as provided in this section. In the case of 
     intermittent leave or leave on a reduced schedule, only one 
     such notice is required unless the circumstances regarding 
     the leave have changed. The employing office's designation 
     decision must be based only on information received from the 
     employee or the employee's spokesperson (e.g., if the 
     employee is incapacitated, the employee's spouse, adult 
     child, parent, doctor, etc., may provide notice to the 
     employing office of the need to take FMLA leave). In any 
     circumstance where the employing office does not have 
     sufficient information about the reason for an employee's use 
     of paid leave, the employing office should inquire further of 
     the employee or the spokesperson to ascertain whether the 
     paid leave is potentially FMLA-qualifying.
       (1) An employee giving notice of the need for unpaid FMLA 
     leave must explain the reasons for the needed leave so as to 
     allow the employing office to determine that the leave 
     qualifies under the FMLA, as made applicable by the CAA. If 
     the employee fails to explain the reasons, leave may be 
     denied. In many cases, in explaining the reasons for a 
     request to use paid leave, especially when the need for the 
     leave was unexpected or unforeseen, an employee will provide 
     sufficient information for the employing office to designate 
     the paid leave as FMLA leave. An employee using accrued paid 
     leave, especially vacation or personal leave, may in some 
     cases not spontaneously explain the reasons or their plans 
     for using their accrued leave.
       (2) As noted in Sec. 825.302(c), an employee giving notice 
     of the need for unpaid FMLA leave does not need to expressly 
     assert rights under the FMLA as made applicable by the CAA or 
     even mention the FMLA to meet his or her obligation to 
     provide notice, though the employee would need to state a 
     qualifying reason for the needed leave. An employee 
     requesting or notifying the employing office of an intent to 
     use accrued paid leave, even if for a purpose covered by 
     FMLA, would not need to assert such right either. However, if 
     an employee requesting to use paid leave for an FMLA-
     qualifying purpose does not explain the reason for the 
     leave--consistent with the employing office's established 
     policy or practice--and the employing office denies the 
     employee's request, the employee will need to provide 
     sufficient information to establish an FMLA-qualifying reason 
     for the needed leave so that the employing office is aware of 
     the employee's entitlement (i.e., that the leave may not be 
     denied) and, then, may designate that the paid leave be 
     appropriately counted against (substituted for) the 
     employee's 12-week entitlement. Similarly, an employee using 
     accrued paid vacation leave who seeks an extension of unpaid 
     leave for an FMLA-qualifying purpose will need to state the 
     reason. If this is due to an event which occurred during the 
     period of paid leave, the employing office may count the 
     leave used after the FMLA-qualifying event against the 
     employee's 12-week entitlement.
       (b)(1) Once the employing office has acquired knowledge 
     that the leave is being taken for an FMLA required reason, 
     the employing office must promptly (within two business days 
     absent extenuating circumstances) notify the employee that 
     the paid leave is designated and will be counted as FMLA 
     leave. If there is a dispute between an employing office and 
     an employee as to whether paid leave qualifies as FMLA leave, 
     it should be resolved through discussions between the 
     employee and the employing office. Such discussions and the 
     decision must be documented.
       (2) The employing office's notice to the employee that the 
     leave has been designated as FMLA leave may be orally or in 
     writing. If the notice is oral, it shall be confirmed in 
     writing, no later than the following payday (unless the 
     payday is less than one week after the oral notice, in which 
     case the notice must be no later than the subsequent payday). 
     The written notice may be in any form, including a notation 
     on the employee's pay stub.
       (c) If the employing office requires paid leave to be 
     substituted for unpaid leave, or that paid leave taken under 
     an existing leave plan be counted as FMLA leave, this 
     decision must be made by the employing office within two 
     business days of the time the employee gives notice of the 
     need for leave, or, where the employing office does not 
     initially have sufficient information to make a 
     determination, when the employing office determines that the 
     leave qualifies as FMLA leave if this happens later. The 
     employing office's designation must be made before the leave 
     starts, unless the employing office does not have sufficient 
     information as to the employee's reason for taking the leave 
     until after the leave commenced. If the employing office has 
     the requisite knowledge to make a determination that the paid 
     leave is for an FMLA reason at the time the employee either 
     gives notice of the need for leave or commences leave and 
     fails to designate the leave as FMLA leave (and so notify the 
     employee in accordance with paragraph (b)), the employing 
     office may not designate leave as FMLA leave retroactively, 
     and may designate only prospectively as of the date of 
     notification to the employee of the designation. In such 
     circumstances, the employee is subject to the full 
     protections of the FMLA, as made applicable by the CAA, but 
     none of the absence preceding the notice to the employee of 
     the designation may be counted against the employee's 12-week 
     FMLA leave entitlement.
       (d) If the employing office learns that leave is for an 
     FMLA purpose after leave has begun, such as when an employee 
     gives notice of the need for an extension of the paid leave 
     with unpaid FMLA leave, the entire or some portion of the 
     paid leave period may be retroactively counted as FMLA leave, 
     to the extent that the leave period qualified as FMLA leave. 
     For example, an employee is granted two weeks paid vacation 
     leave for a skiing trip. In mid-week of the second week, the 
     employee contacts the employing office for an extension of 
     leave as unpaid leave and advises that at the beginning of 
     the second week of paid vacation leave the employee suffered 
     a severe accident requiring hospitalization. The employing 
     office may notify the employee that both the extension and 
     the second week of paid vacation leave (from the date of the 
     injury) is designated as FMLA leave. On the other hand, when 
     the employee takes sick leave that turns into a serious 
     health condition (e.g., bronchitis that turns into bronchial 
     pneumonia) and the employee gives notice of the need for an 
     extension of leave, the entire period of the serious health 
     condition may be counted as FMLA leave.
       (e) Employing offices may not designate leave as FMLA leave 
     after the employee has returned to work with two exceptions:
       (1) If the employee was absent for an FMLA reason and the 
     employing office did not learn the reason for the absence 
     until the employee's return (e.g., where the employee was 
     absent for only a brief period), the employing office may, 
     upon the employee's return to work, promptly (within two 
     business days of the employee's return to work) designate the 
     leave retroactively with appropriate notice to the employee. 
     If leave is taken for an FMLA reason but the employing office 
     was not aware of the reason, and the employee desires that 
     the leave be counted as FMLA leave, the employee must notify 
     the employing office within two business days of returning to 
     work of the reason for the leave. In the absence of such 
     timely notification by the employee, the employee may not 
     subsequently assert FMLA protections for the absence.
       (2) If the employing office knows the reason for the leave 
     but has not been able to confirm that the leave qualifies 
     under FMLA, or where the employing office has requested 
     medical certification which has not yet been received or the 
     parties are in the process of obtaining a second or third 
     medical opinion, the employing office should make a 
     preliminary designation, and so notify the employee, at the 
     time leave begins, or as soon as the reason for the leave 
     becomes known. Upon receipt of the requisite information from 
     the employee or of the medical certification which confirms 
     the leave is for an FMLA reason, the preliminary designation 
     becomes final. If the medical certifications fail to confirm 
     that the reason for the absence was an FMLA reason, the 
     employing office must withdraw the designation (with written 
     notice to the employee).
       (f) If, before beginning employment with an employing 
     office, an employee had been employed by another employing 
     office, the subsequent employing office may count against the 
     employee's FMLA leave entitlement FMLA leave taken from the 
     prior employing office, except that, if the FMLA leave began 
     after the effective date of these regulations (or if the FMLA 
     leave was subject to other applicable requirement under which 
     the employing office was to have designated the leave as FMLA 
     leave), the prior employing office must have properly 
     designated the leave as FMLA under these regulations or other 
     applicable requirement.

     Sec. 825.209 Is an employee entitled to benefits while using 
       FMLA leave?

       (a) During any FMLA leave, the employing office must 
     maintain the employee's coverage under the Federal Employees 
     Health Benefits Program or any group health plan (as defined 
     in the Internal Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) 
     on the same conditions as coverage would have been provided 

[[Page S 17640]]
     if the employee had been continuously employed during the entire leave 
     period. All employing offices are subject to the requirements 
     of the FMLA, as made applicable by the CAA, to maintain 
     health coverage. The definition of ``group health plan'' is 
     set forth in Sec. 825.800. For purposes of FMLA, the term 
     ``group health plan'' shall not include an insurance program 
     providing health coverage under which employees purchase 
     individual policies from insurers provided that:
       (1) no contributions are made by the employing office;
       (2) participation in the program is completely voluntary 
     for employees;
       (3) the sole functions of the employing office with respect 
     to the program are, without endorsing the program, to permit 
     the insurer to publicize the program to employees, to collect 
     premiums through payroll deductions and to remit them to the 
     insurer;
       (4) the employing office receives no consideration in the 
     form of cash or otherwise in connection with the program, 
     other than reasonable compensation, excluding any profit, for 
     administrative services actually rendered in connection with 
     payroll deduction; and
       (5) the premium charged with respect to such coverage does 
     not increase in the event the employment relationship 
     terminates.
       (b) The same group health plan benefits provided to an 
     employee prior to taking FMLA leave must be maintained during 
     the FMLA leave. For example, if family member coverage is 
     provided to an employee, family member coverage must be 
     maintained during the FMLA leave. Similarly, benefit coverage 
     during FMLA leave for medical care, surgical care, hospital 
     care, dental care, eye care, mental health counseling, 
     substance abuse treatment, etc., must be maintained during 
     leave if provided in an employing office's group health plan, 
     including a supplement to a group health plan, whether or not 
     provided through a flexible spending account or other 
     component of a cafeteria plan.
       (c) If an employing office provides a new health plan or 
     benefits or changes health benefits or plans while an 
     employee is on FMLA leave, the employee is entitled to the 
     new or changed plan/benefits to the same extent as if the 
     employee were not on leave. For example, if an employing 
     office changes a group health plan so that dental care 
     becomes covered under the plan, an employee on FMLA leave 
     must be given the same opportunity as other employees to 
     receive (or obtain) the dental care coverage. Any other plan 
     changes (e.g., in coverage, premiums, deductibles, etc.) 
     which apply to all employees of the workforce would also 
     apply to an employee on FMLA leave.
       (d) Notice of any opportunity to change plans or benefits 
     must also be given to an employee on FMLA leave. If the group 
     health plan permits an employee to change from single to 
     family coverage upon the birth of a child or otherwise add 
     new family members, such a change in benefits must be made 
     available while an employee is on FMLA leave. If the employee 
     requests the changed coverage it must be provided by the 
     employing office.
       (e) An employee may choose not to retain group health plan 
     coverage during FMLA leave. However, when an employee returns 
     from leave, the employee is entitled to be reinstated on the 
     same terms as prior to taking the leave, including family or 
     dependent coverages, without any qualifying period, physical 
     examination, exclusion of pre-existing conditions, etc. See 
     Sec. 825.212(c).
       (f) Except as required by the Consolidated Omnibus Budget 
     Reconciliation Act of 1986 (COBRA), or by other applicable 
     law, and for ``key'' employees (as discussed below), an 
     employing office's obligation to maintain health benefits 
     during leave (and to restore the employee to the same or 
     equivalent employment) under FMLA ceases if and when the 
     employment relationship would have terminated if the employee 
     had not taken FMLA leave (e.g., if the employee's position is 
     eliminated as part of a nondiscriminatory reduction in force 
     and the employee would not have been transferred to another 
     position); an employee informs the employing office of his or 
     her intent not to return from leave (including before 
     starting the leave if the employing office is so informed 
     before the leave starts); or the employee fails to return 
     from leave or continues on leave after exhausting his or 
     her FMLA leave entitlement in the 12-month period.
       (g) If a ``key employee'' (see Sec. 825.218) does not 
     return from leave when notified by the employing office that 
     substantial or grievous economic injury will result from his 
     or her reinstatement, the employee's entitlement to group 
     health plan benefits continues unless and until the employee 
     advises the employing office that the employee does not 
     desire restoration to employment at the end of the leave 
     period, or FMLA leave entitlement is exhausted, or 
     reinstatement is actually denied.
       (h) An employee's entitlement to benefits other than group 
     health benefits during a period of FMLA leave (e.g., holiday 
     pay) is to be determined by the employing office's 
     established policy for providing such benefits when the 
     employee is on other forms of leave (paid or unpaid, as 
     appropriate).

     Sec. 825.210 How may employees on FMLA leave pay their share 
       of group health benefit premiums?

       (a) Group health plan benefits must be maintained on the 
     same basis as coverage would have been provided if the 
     employee had been continuously employed during the FMLA leave 
     period. Therefore, any share of group health plan premiums 
     which had been paid by the employee prior to FMLA leave must 
     continue to be paid by the employee during the FMLA leave 
     period. If premiums are raised or lowered, the employee would 
     be required to pay the new premium rates. Maintenance of 
     health insurance policies which are not a part of the 
     employing office's group health plan, as described in 
     Sec. 825.209(a)(1), are the sole responsibility of the 
     employee. The employee and the insurer should make necessary 
     arrangements for payment of premiums during periods of unpaid 
     FMLA leave.
       (b) If the FMLA leave is substituted paid leave, the 
     employee's share of premiums must be paid by the method 
     normally used during any paid leave, presumably as a payroll 
     deduction.
       (c) If FMLA leave is unpaid, the employing office has a 
     number of options for obtaining payment from the employee. 
     The employing office may require that payment be made to the 
     employing office or to the insurance carrier, but no 
     additional charge may be added to the employee's premium 
     payment for administrative expenses. The employing office may 
     require employees to pay their share of premium payments in 
     any of the following ways:
       (1) Payment would be due at the same time as it would be 
     made if by payroll deduction;
       (2) Payment would be due on the same schedule as payments 
     are made under COBRA;
       (3) Payment would be prepaid pursuant to a cafeteria plan 
     at the employee's option;
       (4) The employing office's existing rules for payment by 
     employees on ``leave without pay'' would be followed, 
     provided that such rules do not require prepayment (i.e., 
     prior to the commencement of the leave) of the premiums that 
     will become due during a period of unpaid FMLA leave or 
     payment of higher premiums than if the employee had continued 
     to work instead of taking leave; or,
       (5) Another system voluntarily agreed to between the 
     employing office and the employee, which may include 
     prepayment of premiums (e.g., through increased payroll 
     deductions when the need for the FMLA leave is foreseeable).
       (d) The employing office must provide the employee with 
     advance written notice of the terms and conditions under 
     which these payments must be made. (See Sec. 825.301.)
       (e) An employing office may not require more of an employee 
     using FMLA leave than the employing office requires of other 
     employees on ``leave without pay''.
       (f) An employee who is receiving payments as a result of a 
     workers' compensation injury must make arrangements with the 
     employing office for payment of group health plan benefits 
     when simultaneously taking unpaid FMLA leave. See paragraph 
     (c) of this section and Sec. 825.207(d)(2).

     Sec. 825.211 [Reserved.]

     Sec. 825.212 What are the consequences of an employee's 
       failure to make timely health plan premium payments?

       (a)(1) In the absence of an established employing office 
     policy providing a longer grace period, an employing office's 
     obligations to maintain health insurance coverage cease under 
     FMLA if an employee's premium payment is more than 30 days 
     late. In order to drop the coverage for an employee whose 
     premium payment is late, the employing office must provide 
     written notice to the employee that the payment has not been 
     received. Such notice must be mailed to the employee at least 
     15 days before coverage is to cease, advising that coverage 
     will be dropped on a specified date at least 15 days after 
     the date of the letter unless the payment has been received 
     by that date. If the employing office has established 
     policies regarding other forms of unpaid leave that provide 
     for the employing office to cease coverage retroactively to 
     the date the unpaid premium payment was due, the employing 
     office may drop the employee from coverage retroactively in 
     accordance with that policy, provided the 15-day notice was 
     given. In the absence of such a policy, coverage for the 
     employee may be terminated at the end of the 30-day grace 
     period, where the required 15-day notice has been provided.
       (2) An employing office has no obligation regarding the 
     maintenance of a health insurance policy which is not a 
     ``group health plan.'' See Sec. 825.209(a).
       (3) All other obligations of an employing office under FMLA 
     would continue; for example, the employing office continues 
     to have an obligation to reinstate an employee upon return 
     from leave.
       (b) The employing office may recover the employee's share 
     of any premium payments missed by the employee for any FMLA 
     leave period during which the employing office maintains 
     health coverage by paying the employee's share after the 
     premium payment is missed.
       (c) If coverage lapses because an employee has not made 
     required premium payments, upon the employee's return from 
     FMLA leave the employing office must still restore the 
     employee to coverage/benefits equivalent to those the 
     employee would have had if leave had not been taken and the 
     premium payment(s) had not been missed, including family or 
     dependent coverage. See Sec. 825.215(d)(1)-(5). In such case, 
     an employee may not be required to meet any qualification 
     requirements imposed by the plan, including any new 
     preexisting condition waiting period, to wait for an open 
     season, or to 

[[Page S 17641]]
     pass a medical examination to obtain reinstatement of coverage.

     Sec. 825.213 May an employing office recover costs it 
       incurred for maintaining ``group health plan'' or other 
       non-health benefits coverage during FMLA leave?

       (a) In addition to the circumstances discussed in 
     Sec. 825.212(b), an employing office may recover its share of 
     health plan premiums during a period of unpaid FMLA leave 
     from an employee if the employee fails to return to work 
     after the employee's FMLA leave entitlement has been 
     exhausted or expires, unless the reason the employee does not 
     return is due to:
       (1) The continuation, recurrence, or onset of a serious 
     health condition of the employee or the employee's family 
     member which would otherwise entitle the employee to leave 
     under FMLA; or
       (2) Other circumstances beyond the employee's control. 
     Examples of ``other circumstances beyond the employee's 
     control'' are necessarily broad. They include such situations 
     as where a parent chooses to stay home with a newborn child 
     who has a serious health condition; an employee's spouse is 
     unexpectedly transferred to a job location more than 75 miles 
     from the employee's worksite; a relative or individual other 
     than an immediate family member has a serious health 
     condition and the employee is needed to provide care; the 
     employee is laid off while on leave; or, the employee is a 
     key employee'' who decides not to return to work upon being 
     notified of the employing office's intention to deny 
     restoration because of substantial and grievous economic 
     injury to the employing office's operations and is not 
     reinstated by the employing office. Other circumstances 
     beyond the employee's control would not include a situation 
     where an employee desires to remain with a parent in a 
     distant city even though the parent no longer requires the 
     employee's care, or a parent chooses not to return to work to 
     stay home with a well, newborn child.
       (3) When an employee fails to return to work because of the 
     continuation, recurrence, or onset of a serious health 
     condition, thereby precluding the employing office from 
     recovering its (share of) health benefit premium payments 
     made on the employee's behalf during a period of unpaid FMLA 
     leave, the employing office may require medical certification 
     of the employee's or the family member's serious health 
     condition. Such certification is not required unless 
     requested by the employing office. The employee is required 
     to provide medical certification in a timely manner which, 
     for purposes of this section, is within 30 days from the date 
     of the employing office's request. For purposes of medical 
     certification, the employee may use the optional form 
     developed for this purpose (see Sec. 825.306(a) and Appendix 
     B of this part). If the employing office requests medical 
     certification and the employee does not provide such 
     certification in a timely manner (within 30 days), or the 
     reason for not returning to work does not meet the test of 
     other circumstances beyond the employee's control, the 
     employing office may recover 100% of the health benefit 
     premiums it paid during the period of unpaid FMLA leave.
       (b) Under some circumstances an employing office may elect 
     to maintain other benefits, e.g., life insurance, disability 
     insurance, etc., by paying the employee's (share of) premiums 
     during periods of unpaid FMLA leave. For example, to ensure 
     the employing office can meet its responsibilities to provide 
     equivalent benefits to the employee upon return from unpaid 
     FMLA leave, it may be necessary that premiums be paid 
     continuously to avoid a lapse of coverage. If the employing 
     office elects to maintain such benefits during the leave, at 
     the conclusion of leave, the employing office is entitled to 
     recover only the costs incurred for paying the employee's 
     share of any premiums whether or not the employee returns to 
     work.
       (c) An employee who returns to work for at least 30 
     calendar days is considered to have ``returned'' to work. An 
     employee who transfers directly from taking FMLA leave to 
     retirement, or who retires during the first 30 days after the 
     employee returns to work, is deemed to have returned to work.
       (d) When an employee elects or an employing office requires 
     paid leave to be substituted for FMLA leave, the employing 
     office may not recover its (share of) health insurance or 
     other non-health benefit premiums for any period of FMLA 
     leave covered by paid leave. Because paid leave provided 
     under a plan covering temporary disabilities (including 
     workers' compensation) is not unpaid, recovery of health 
     insurance premiums does not apply to such paid leave.
       (e) The amount that self-insured employing offices may 
     recover is limited to only the employing office's share of 
     allowable ``premiums'' as would be calculated under COBRA, 
     excluding the 2 percent fee for administrative costs.
       (f) When an employee fails to return to work, any health 
     and non-health benefit premiums which this section of the 
     regulations permits an employing office to recover are a debt 
     owed by the non-returning employee to the employing office. 
     The existence of this debt caused by the employee's failure 
     to return to work does not alter the employing office's 
     responsibilities for health benefit coverage and, under a 
     self-insurance plan, payment of claims incurred during the 
     period of FMLA leave. To the extent recovery is allowed, the 
     employing office may recover the costs through deduction from 
     any sums due to the employee (e.g., unpaid wages, vacation 
     pay, etc.), provided such deductions do not otherwise violate 
     applicable wage payment or other laws. Alternatively, the 
     employing office may initiate legal action against the 
     employee to recover such costs.

     Sec. 825.214 What are an employee's rights on returning to 
       work from FMLA leave?

       (a) On return from FMLA leave, an employee is entitled to 
     be returned to the same position the employee held when leave 
     commenced, or to an equivalent position with equivalent 
     benefits, pay, and other terms and conditions of employment. 
     An employee is entitled to such reinstatement even if the 
     employee has been replaced or his or her position has been 
     restructured to accommodate the employee's absence. See also 
     Sec. 825.106(e) for the obligations of employing offices that 
     are joint employing offices.
       (b) If the employee is unable to perform an essential 
     function of the position because of a physical or mental 
     condition, including the continuation of a serious health 
     condition, the employee has no right to restoration to 
     another position under the FMLA. However, the employing 
     office's obligations may be governed by the Americans with 
     Disabilities Act (ADA). See Sec. 825.702.

     Sec. 825.215 What is an equivalent position?

       (a) An equivalent position is one that is virtually 
     identical to the employee's former position in terms of pay, 
     benefits and working conditions, including privileges, 
     perquisites and status. It must involve the same or 
     substantially similar duties and responsibilities, which must 
     entail substantially equivalent skill, effort, 
     responsibility, and authority.
       (b) If an employee is no longer qualified for the position 
     because of the employee's inability to attend a necessary 
     course, renew a license, fly a minimum number of hours, etc., 
     as a result of the leave, the employee shall be given a 
     reasonable opportunity to fulfill those conditions upon 
     return to work.
       (c) Equivalent Pay.--(1) An employee is entitled to any 
     unconditional pay increases which may have occurred during 
     the FMLA leave period, such as cost of living increases. Pay 
     increases conditioned upon seniority, length of service, or 
     work performed would not have to be granted unless it is the 
     employing office's policy or practice to do so with respect 
     to other employees on ``leave without pay.'' In such case, 
     any pay increase would be granted based on the employee's 
     seniority, length of service, work performed, etc., excluding 
     the period of unpaid FMLA leave. An employee is entitled to 
     be restored to a position with the same or equivalent pay 
     premiums, such as a shift differential. If an employee 
     departed from a position averaging ten hours of overtime (and 
     corresponding overtime pay) each week, an employee is 
     ordinarily entitled to such a position on return from FMLA 
     leave.
       (2) Many employing offices pay bonuses in different forms 
     to employees for job-related performance such as for perfect 
     attendance, safety (absence of injuries or accidents on the 
     job) and exceeding production goals. Bonuses for perfect 
     attendance and safety do not require performance by the 
     employee but rather contemplate the absence of occurrences. 
     To the extent an employee who takes FMLA leave had met all 
     the requirements for either or both of these bonuses before 
     FMLA leave began, the employee is entitled to continue this 
     entitlement upon return from FMLA leave, that is, the 
     employee may not be disqualified for the bonus(es) for the 
     taking of FMLA leave. See Sec. 825.220 (b) and (c). A monthly 
     production bonus, on the other hand, does require performance 
     by the employee. If the employee is on FMLA leave during any 
     part of the period for which the bonus is computed, the 
     employee is entitled to the same consideration for the bonus 
     as other employees on paid or unpaid leave (as appropriate). 
     See paragraph (d)(2) of this section.
       (d) Equivalent Benefits.--``Benefits'' include all benefits 
     provided or made available to employees by an employing 
     office, including group life insurance, health insurance, 
     disability insurance, sick leave, annual leave, educational 
     benefits, and pensions, regardless of whether such benefits 
     are provided by a practice or written policy of an employing 
     office through an employee benefit plan.
       (1) At the end of an employee's FMLA leave, benefits must 
     be resumed in the same manner and at the same levels as 
     provided when the leave began, and subject to any changes in 
     benefit levels that may have taken place during the period of 
     FMLA leave affecting the entire workforce, unless otherwise 
     elected by the employee. Upon return from FMLA leave, an 
     employee cannot be required to requalify for any benefits the 
     employee enjoyed before FMLA leave began (including family or 
     dependent coverages). For example, if an employee was covered 
     by a life insurance policy before taking leave but is not 
     covered or coverage lapses during the period of unpaid FMLA 
     leave, the employee cannot be required to meet any 
     qualifications, such as taking a physical examination, in 
     order to requalify for life insurance upon return from leave. 
     Accordingly, some employing offices may find it necessary to 
     modify life insurance and other benefits programs in order to 
     restore employees to equivalent benefits upon return from 
     FMLA leave, make arrangements for continued payment of costs 
     to maintain such benefits during unpaid FMLA leave, or pay 
     these costs subject to recovery from the employee on return 
     from leave. See Sec. 825.213(b). 

[[Page S 17642]]

       (2) An employee may, but is not entitled to, accrue any 
     additional benefits or seniority during unpaid FMLA leave. 
     Benefits accrued at the time leave began, however, (e.g., 
     paid vacation, sick or personal leave to the extent not 
     substituted for FMLA leave) must be available to an employee 
     upon return from leave.
       (3) If, while on unpaid FMLA leave, an employee desires to 
     continue life insurance, disability insurance, or other types 
     of benefits for which he or she typically pays, the employing 
     office is required to follow established policies or 
     practices for continuing such benefits for other instances of 
     leave without pay. If the employing office has no established 
     policy, the employee and the employing office are encouraged 
     to agree upon arrangements before FMLA leave begins.
       (4) With respect to pension and other retirement plans, any 
     period of unpaid FMLA leave shall not be treated as or 
     counted toward a break in service for purposes of vesting and 
     eligibility to participate. Also, if the plan requires an 
     employee to be employed on a specific date in order to be 
     credited with a year of service for vesting, contributions or 
     participation purposes, an employee on unpaid FMLA leave on 
     that date shall be deemed to have been employed on that date. 
     However, unpaid FMLA leave periods need not be treated as 
     credited service for purposes of benefit accrual, vesting and 
     eligibility to participate.
       (5) Employees on unpaid FMLA leave are to be treated as if 
     they continued to work for purposes of changes to benefit 
     plans. They are entitled to changes in benefits plans, except 
     those which may be dependent upon seniority or accrual during 
     the leave period, immediately upon return from leave or to 
     the same extent they would have qualified if no leave had 
     been taken. For example if the benefit plan is predicated on 
     a pre-established number of hours worked each year and the 
     employee does not have sufficient hours as a result of taking 
     unpaid FMLA leave, the benefit is lost. (In this regard, 
     Sec. 825.209 addresses health benefits.)
       (e) Equivalent Terms and Conditions of Employment.--An 
     equivalent position must have substantially similar duties, 
     conditions, responsibilities, privileges and status as the 
     employee's original position.
       (1) The employee must be reinstated to the same or a 
     geographically proximate worksite (i.e., one that does not 
     involve a significant increase in commuting time or distance) 
     from where the employee had previously been employed. If the 
     employee's original worksite has been closed, the employee is 
     entitled to the same rights as if the employee had not been 
     on leave when the worksite closed. For example, if an 
     employing office transfers all employees from a closed 
     worksite to a new worksite in a different city, the employee 
     on leave is also entitled to transfer under the same 
     conditions as if he or she had continued to be employed.
       (2) The employee is ordinarily entitled to return to the 
     same shift or the same or an equivalent work schedule.
       (3) The employee must have the same or an equivalent 
     opportunity for bonuses and other similar discretionary and 
     non-discretionary payments.
       (4) FMLA does not prohibit an employing office from 
     accommodating an employee's request to be restored to a 
     different shift, schedule, or position which better suits the 
     employee's personal needs on return from leave, or to offer a 
     promotion to a better position. However, an employee cannot 
     be induced by the employing office to accept a different 
     position against the employee's wishes.
       (f) The requirement that an employee be restored to the 
     same or equivalent job with the same or equivalent pay, 
     benefits, and terms and conditions of employment does not 
     extend to de minimis or intangible, unmeasurable aspects of 
     the job. However, restoration to a job slated for lay-off 
     when the employee's original position is not would not meet 
     the requirements of an equivalent position.

     Sec. 825.216 Are there any limitations on an employing 
       office's obligation to reinstate an employee?

       (a) An employee has no greater right to reinstatement or to 
     other benefits and conditions of employment than if the 
     employee had been continuously employed during the FMLA leave 
     period. An employing office must be able to show that an 
     employee would not otherwise have been employed at the time 
     reinstatement is requested in order to deny restoration to 
     employment. For example;
       (1) If an employee is laid off during the course of taking 
     FMLA leave and employment is terminated, the employing 
     office's responsibility to continue FMLA leave, maintain 
     group health plan benefits and restore the employee cease at 
     the time the employee is laid off, provided the employing 
     office has no continuing obligations under a collective 
     bargaining agreement or otherwise. An employing office would 
     have the burden of proving that an employee would have been 
     laid off during the FMLA leave period and, therefore, would 
     not be entitled to restoration.
       (2) If a shift has been eliminated, or overtime has been 
     decreased, an employee would not be entitled to return to 
     work that shift or the original overtime hours upon 
     restoration. However, if a position on, for example, a night 
     shift has been filled by another employee, the employee is 
     entitled to return to the same shift on which employed before 
     taking FMLA leave.
       (b) If an employee was hired for a specific term or only to 
     perform work on a discrete project, the employing office has 
     no obligation to restore the employee if the employment term 
     or project is over and the employing office would not 
     otherwise have continued to employ the employee.
       (c) In addition to the circumstances explained above, an 
     employing office may deny job restoration to salaried 
     eligible employees (``key employees,'' as defined in 
     paragraph (c) of Sec. 825.217) if such denial is necessary to 
     prevent substantial and grievous economic injury to the 
     operations of the employing office; or may delay restoration 
     to an employee who fails to provide a fitness for duty 
     certificate to return to work under the conditions described 
     in Sec. 825.310.
       (d) If the employee has been on a workers' compensation 
     absence during which FMLA leave has been taken concurrently, 
     and after 12 weeks of FMLA leave the employee is unable to 
     return to work, the employee no longer has the protections of 
     FMLA and must look to the workers' compensation statute or 
     ADA for any relief or protections.

     Sec. 825.217 What is a ``key employee''?

       (a) A ``key employee'' is a salaried FMLA-eligible employee 
     who is among the highest paid 10 percent of all the employees 
     employed by the employing office within 75 miles of the 
     employee's worksite.
       (b) The term ``salaried'' means ``paid on a salary basis,'' 
     as defined in [CAA regulation based on 29 CFR 541.118]. This 
     is the regulation defining employees who may qualify as 
     exempt from the minimum wage and overtime requirements of the 
     FLSA as executive, administrative, and professional 
     employees.
       (c) A ``key employee'' must be ``among the highest paid 10 
     percent'' of all the employees--both salaried and non-
     salaried, eligible and ineligible--who are employed by the 
     employing office within 75 miles of the worksite.
       (1) In determining which employees are among the highest 
     paid 10 percent, year-to-date earnings are divided by weeks 
     worked by the employee (including weeks in which paid leave 
     was taken). Earnings include wages, premium pay, incentive 
     pay, and non-discretionary and discretionary bonuses. 
     Earnings do not include incentives whose value is determined 
     at some future date, e.g., benefits or perquisites.
       (2) The determination of whether a salaried employee is 
     among the highest paid 10 percent shall be made at the time 
     the employee gives notice of the need for leave. No more than 
     10 percent of the employing office's employees within 75 
     miles of the worksite may be ``key employees.''

     Sec. 825.218 What does ``substantial and grievous economic 
       injury'' mean?

       (a) In order to deny restoration to a key employee, an 
     employing office must determine that the restoration of the 
     employee to employment will cause ``substantial and grievous 
     economic injury'' to the operations of the employing office, 
     not whether the absence of the employee will cause such 
     substantial and grievous injury.
       (b) An employing office may take into account its ability 
     to replace on a temporary basis (or temporarily do without) 
     the employee on FMLA leave. If permanent replacement is 
     unavoidable, the cost of then reinstating the employee can be 
     considered in evaluating whether substantial and grievous 
     economic injury will occur from restoration; in other words, 
     the effect on the operations of the employing office of 
     reinstating the employee in an equivalent position.
       (c) A precise test cannot be set for the level of hardship 
     or injury to the employing office which must be sustained. If 
     the reinstatement of a ``key employee'' threatens the 
     economic viability of the employing office, that would 
     constitute ``substantial and grievous economic injury.'' A 
     lesser injury which causes substantial, long-term economic 
     injury would also be sufficient. Minor inconveniences and 
     costs that the employing office would experience in the 
     normal course would certainly not constitute ``substantial 
     and grievous economic injury.''
       (d) FMLA's ``substantial and grievous economic injury'' 
     standard is different from and more stringent than the 
     ``undue hardship'' test under the ADA (see, also 
     Sec. 825.702).

     Sec. 825.219 What are the rights of a key employee?

       (a) An employing office who believes that reinstatement may 
     be denied to a key employee, must give written notice to the 
     employee at the time the employee gives notice of the need 
     for FMLA leave (or when FMLA leave commences, if earlier) 
     that he or she qualifies as a key employee. At the same 
     time, the employing office must also fully inform the 
     employee of the potential consequences with respect to 
     reinstatement and maintenance of health benefits if the 
     employing office should determine that substantial and 
     grievous economic injury to the employing office's 
     operations will result if the employee is reinstated from 
     FMLA leave. If such notice cannot be given immediately 
     because of the need to determine whether the employee is a 
     key employee, it shall be given as soon as practicable 
     after being notified of a need for leave (or the 
     commencement of leave, if earlier). It is expected that in 
     most circumstances there will be no desire that an 
     employee be denied restoration after FMLA leave and, 
     therefore, there would be no need to provide such notice. 
     However, an employing office who fails to provide such 
     timely notice will lose its right to deny restoration even 
     if substantial 

[[Page S 17643]]
     and grievous economic injury will result from reinstatement.
       (b) As soon as an employing office makes a good faith 
     determination, based on the facts available, that substantial 
     and grievous economic injury to its operations will result if 
     a key employee who has given notice of the need for FMLA 
     leave or is using FMLA leave is reinstated, the employing 
     office shall notify the employee in writing of its 
     determination, that it cannot deny FMLA leave, and that it 
     intends to deny restoration to employment on completion of 
     the FMLA leave. It is anticipated that an employing office 
     will ordinarily be able to give such notice prior to the 
     employee starting leave. The employing office must serve this 
     notice either in person or by certified mail. This notice 
     must explain the basis for the employing office's finding 
     that substantial and grievous economic injury will result, 
     and, if leave has commenced, must provide the employee a 
     reasonable time in which to return to work, taking into 
     account the circumstances, such as the length of the leave 
     and the urgency of the need for the employee to return.
       (c) If an employee on leave does not return to work in 
     response to the employing office's notification of intent to 
     deny restoration, the employee continues to be entitled to 
     maintenance of health benefits and the employing office may 
     not recover its cost of health benefit premiums. A key 
     employee's rights under FMLA continue unless and until the 
     employee either gives notice that he or she no longer wishes 
     to return to work, or the employing office actually denies 
     reinstatement at the conclusion of the leave period.
       (d) After notice to an employee has been given that 
     substantial and grievous economic injury will result if the 
     employee is reinstated to employment, an employee is still 
     entitled to request reinstatement at the end of the leave 
     period even if the employee did not return to work in 
     response to the employing office's notice. The employing 
     office must then again determine whether there will be 
     substantial and grievous economic injury from reinstatement, 
     based on the facts at that time. If it is determined that 
     substantial and grievous economic injury will result, the 
     employing office shall notify the employee in writing (in 
     person or by certified mail) of the denial of restoration.

     Sec. 825.220 How are employees protected who request leave or 
       otherwise assert FMLA rights?

       (a) The FMLA, as made applicable by the CAA, prohibits 
     interference with an employee's rights under the law, and 
     with legal proceedings or inquiries relating to an employee's 
     rights. More specifically, the law contains the following 
     employee protections:
       (1) An employing office is prohibited from interfering 
     with, restraining, or denying the exercise of (or attempts to 
     exercise) any rights provided by the FMLA as made applicable 
     by the CAA.
       (2) An employing office is prohibited from discharging or 
     in any other way discriminating against any covered employee 
     (whether or not an eligible employee) for opposing or 
     complaining about any unlawful practice under the FMLA as 
     made applicable by the CAA.
       (3) All employing offices are prohibited from discharging 
     or in any other way discriminating against any covered 
     employee (whether or not an eligible employee) because that 
     covered employee has--
       (i) Filed any charge, or has instituted (or caused to be 
     instituted) any proceeding under or related to the FMLA, as 
     made applicable by the CAA;
       (ii) Given, or is about to give, any information in 
     connection with an inquiry or proceeding relating to a right 
     under the FMLA, as made applicable by the CAA;
       (iii) Testified, or is about to testify, in any inquiry or 
     proceeding relating to a right under the FMLA, as made 
     applicable by the CAA.
       (b) Any violations of the FMLA, as made applicable by the 
     CAA, or of these regulations constitute interfering with, 
     restraining, or denying the exercise of rights provided by 
     the FMLA as made applicable by the CAA. ``Interfering with'' 
     the exercise of an employee's rights would include, for 
     example, not only refusing to authorize FMLA leave, but 
     discouraging an employee from using such leave. It would also 
     include manipulation by an employing office to avoid 
     responsibilities under FMLA, for example:
       (1) [Reserved];
       (2) changing the essential functions of the job in order to 
     preclude the taking of leave;
       (3) reducing hours available to work in order to avoid 
     employee eligibility.
       (c) An employing office is prohibited from discriminating 
     against employees or prospective employees who have used FMLA 
     leave. For example, if an employee on leave without pay would 
     otherwise be entitled to full benefits (other than health 
     benefits), the same benefits would be required to be provided 
     to an employee on unpaid FMLA leave. By the same token, 
     employing offices cannot use the taking of FMLA leave as a 
     negative factor in employment actions, such as hiring, 
     promotions or disciplinary actions; nor can FMLA leave be 
     counted under ``no fault'' attendance policies.
       (d) Employees cannot waive, nor may employing offices 
     induce employees to waive, their rights under FMLA. For 
     example, employees (or their collective bargaining 
     representatives) cannot ``trade off'' the right to take FMLA 
     leave against some other benefit offered by the employing 
     office. This does not prevent an employee's voluntary and 
     uncoerced acceptance (not as a condition of employment) of a 
     ``light duty'' assignment while recovering from a serious 
     health condition (see Sec. 825.702(d)). In such a 
     circumstance the employee's right to restoration to the same 
     or an equivalent position is available until 12 weeks have 
     passed within the 12-month period, including all FMLA leave 
     taken and the period of ``light duty.''
       (e) Covered employees, and not merely eligible employees, 
     are protected from retaliation for opposing (e.g., filing a 
     complaint about) any practice which is unlawful under the 
     FMLA, as made applicable by the CAA. They are similarly 
     protected if they oppose any practice which they reasonably 
     believe to be a violation of the FMLA, as made applicable by 
     the CAA or regulations.


Subpart C--How do Employees Learn of Their Rights and Obligations under 
  the FMLA, as Made Applicable by the CAA, and What Can an Employing 
                     Office Require of an Employee?

     Sec. 825.300 [Reserved.]

     Sec. 825.301 What notices to employees are required of 
       employing offices under the FMLA as made applicable by the 
       CAA?

       (a)(1) If an employing office has any eligible employees 
     and has any written guidance to employees concerning employee 
     benefits or leave rights, such as in an employee handbook, 
     information concerning both entitlements and employee 
     obligations under the FMLA, as made applicable by the CAA, 
     must be included in the handbook or other document. For 
     example, if an employing office provides an employee handbook 
     to all employees that describes the employing office's 
     policies regarding leave, wages, attendance, and similar 
     matters, the handbook must incorporate information on FMLA 
     rights and responsibilities and the employing office's 
     policies regarding the FMLA, as made applicable by the CAA. 
     Informational publications describing the provisions of the 
     FMLA as made applicable by the CAA are available from the 
     Office of Compliance and may be incorporated in such 
     employing office handbooks or written policies.
       (2) If such an employing office does not have written 
     policies, manuals, or handbooks describing employee benefits 
     and leave provisions, the employing office shall provide 
     written guidance to an employee concerning all the employee's 
     rights and obligations under the FMLA as made applicable by 
     the CAA. This notice shall be provided to employees each time 
     notice is given pursuant to paragraph (b), and in accordance 
     with the provisions of that paragraph. Employing offices may 
     duplicate and provide the employee a copy of the FMLA Fact 
     Sheet available from the Office of Compliance to provide such 
     guidance.
       (b)(1) The employing office shall also provide the employee 
     with written notice detailing the specific expectations and 
     obligations of the employee and explaining any consequences 
     of a failure to meet these obligations. The written notice 
     must be provided to the employee in a language in which the 
     employee is literate (see Sec. 825.300(c)). Such specific 
     notice must include, as appropriate:
       (i) that the leave will be counted against the employee's 
     annual FMLA leave entitlement (see Sec. 825.208);
       (ii) any requirements for the employee to furnish medical 
     certification of a serious health condition and the 
     consequences of failing to do so (see Sec. 825.305);
       (iii) the employee's right to substitute paid leave and 
     whether the employing office will require the substitution of 
     paid leave, and the conditions related to any substitution;
       (iv) any requirement for the employee to make any premium 
     payments to maintain health benefits and the arrangements for 
     making such payments (see Sec. 825.210), and the possible 
     consequences of failure to make such payments on a timely 
     basis (i.e., the circumstances under which coverage may 
     lapse);
       (v) any requirement for the employee to present a fitness-
     for-duty certificate to be restored to employment (see 
     Sec. 825.310);
       (vi) the employee's status as a ``key employee'' and the 
     potential consequence that restoration may be denied 
     following FMLA leave, explaining the conditions required for 
     such denial (see Sec. 825.218);
       (vii) the employee's right to restoration to the same or an 
     equivalent job upon return from leave (see Sec. Sec. 825.214 
     and 825.604); and,
       (viii) the employee's potential liability for payment of 
     health insurance premiums paid by the employing office during 
     the employee's unpaid FMLA leave if the employee fails to 
     return to work after taking FMLA leave (see Sec. 825.213).
       (2) The specific notice may include other information--
     e.g., whether the employing office will require periodic 
     reports of the employee's status and intent to return to 
     work, but is not required to do so. A prototype notice is 
     contained in Appendix D of this part [reserved], or may be 
     obtained from the Office of Compliance, which employing 
     offices may adapt for their use to meet these specific notice 
     requirements.
       (c) Except as provided in this subparagraph, the written 
     notice required by paragraph (b) (and by subparagraph (a)(2) 
     where applicable) must be provided to the employee no less 
     often than the first time in each six-month period that an 
     employee gives notice of the need for FMLA leave (if FMLA 
     leave is taken during the six-month period). The notice shall 
     be given within a reasonable time after notice of the need 
     for leave is given by the employee--within one or two 

[[Page S 17644]]
     business days if feasible. If leave has already begun, the notice 
     should be mailed to the employee's address of record.
       (1) If the specific information provided by the notice 
     changes with respect to a subsequent period of FMLA leave 
     during the six-month period, the employing office shall, 
     within one or two business days of receipt of the employee's 
     notice of need for leave, provide written notice referencing 
     the prior notice and setting forth any of the information in 
     subparagraph (b) which has changed. For example, if the 
     initial leave period were paid leave and the subsequent leave 
     period would be unpaid leave, the employing office may need 
     to give notice of the arrangements for making premium 
     payments.
       (2)(i) Except as provided in subparagraph (ii), if the 
     employing office is requiring medical certification or a 
     ``fitness-for-duty'' report, written notice of the 
     requirement shall be given with respect to each employee 
     notice of a need for leave.
       (ii) Subsequent written notification shall not be required 
     if the initial notice in the six-month period and the 
     employing office handbook or other written documents (if any) 
     describing the employing office's leave policies, clearly 
     provided that certification or a ``fitness-for-duty'' report 
     would be required (e.g., by stating that certification would 
     be required in all cases, by stating that certification would 
     be required in all cases in which leave of more than a 
     specified number of days is taken, or by stating that a 
     ``fitness-for-duty'' report would be required in all cases 
     for back injuries for employees in a certain occupation). 
     Where subsequent written notice is not required, at least 
     oral notice shall be provided. (See Sec. 825.305(a).)
       (d) Employing offices are also expected to responsively 
     answer questions from employees concerning their rights and 
     responsibilities under the FMLA as made applicable under the 
     CAA.
       (e) Employing offices furnishing FMLA-required notices to 
     sensory impaired individuals must also comply with all 
     applicable requirements under law.
       (f) If an employing office fails to provide notice in 
     accordance with the provisions of this section, the employing 
     office may not take action against an employee for failure to 
     comply with any provision required to be set forth in the 
     notice.

     Sec. 825.302 What notice does an employee have to give an 
       employing office when the need for FMLA leave is 
       foreseeable?

       (a) An employee must provide the employing office at least 
     30 days advance notice before FMLA leave is to begin if the 
     need for the leave is foreseeable based on an expected birth, 
     placement for adoption or foster care, or planned medical 
     treatment for a serious health condition of the employee or 
     of a family member. If 30 days notice is not practicable, 
     such as because of a lack of knowledge of approximately when 
     leave will be required to begin, a change in circumstances, 
     or a medical emergency, notice must be given as soon as 
     practicable. For example, an employee's health condition may 
     require leave to commence earlier than anticipated before the 
     birth of a child. Similarly, little opportunity for notice 
     may be given before placement for adoption. Whether the leave 
     is to be continuous or is to be taken intermittently or on a 
     reduced schedule basis, notice need only be given one time, 
     but the employee shall advise the employing office as soon as 
     practicable if dates of scheduled leave change or are 
     extended, or were initially unknown.
       (b) ``As soon as practicable'' means as soon as both 
     possible and practical, taking into account all of the facts 
     and circumstances in the individual case. For foreseeable 
     leave where it is not possible to give as much as 30 days 
     notice, ``as soon as practicable'' ordinarily would mean at 
     least verbal notification to the employing office within one 
     or two business days of when the need for leave becomes known 
     to the employee.
       (c) An employee shall provide at least verbal notice 
     sufficient to make the employing office aware that the 
     employee needs FMLA-qualifying leave, and the anticipated 
     timing and duration of the leave. The employee need not 
     expressly assert rights under the FMLA as made applicable by 
     the CAA, or even mention the FMLA, but may only state that 
     leave is needed for an expected birth or adoption, for 
     example. The employing office should inquire further of the 
     employee if it is necessary to have more information about 
     whether FMLA leave is being sought by the employee, and 
     obtain the necessary details of the leave to be taken. In the 
     case of medical conditions, the employing office may find it 
     necessary to inquire further to determine if the leave is 
     because of a serious health condition and may request medical 
     certification to support the need for such leave (see 
     Sec. 825.305).
       (d) An employing office may also require an employee to 
     comply with the employing office's usual and customary notice 
     and procedural requirements for requesting leave. For 
     example, an employing office may require that written notice 
     set forth the reasons for the requested leave, the 
     anticipated duration of the leave, and the anticipated start 
     of the leave. However, failure to follow such internal 
     employing office procedures will not permit an employing 
     office to disallow or delay an employee's taking FMLA leave 
     if the employee gives timely verbal or other notice.
       (e) When planning medical treatment, the employee must 
     consult with the employing office and make a reasonable 
     effort to schedule the leave so as not to disrupt unduly the 
     employing office's operations, subject to the approval of the 
     health care provider. Employees are ordinarily expected to 
     consult with their employing offices prior to the scheduling 
     of treatment in order to work out a treatment schedule which 
     best suits the needs of both the employing office and the 
     employee. If an employee who provides notice of the need to 
     take FMLA leave on an intermittent basis for planned medical 
     treatment neglects to consult with the employing office to 
     make a reasonable attempt to arrange the schedule of 
     treatments so as not to unduly disrupt the employing office's 
     operations, the employing office may initiate discussions 
     with the employee and require the employee to attempt to make 
     such arrangements, subject to the approval of the health care 
     provider.
       (f) In the case of intermittent leave or leave on a reduced 
     leave schedule which is medically necessary, an employee 
     shall advise the employing office, upon request, of the 
     reasons why the intermittent/reduced leave schedule is 
     necessary and of the schedule for treatment, if applicable. 
     The employee and employing office shall attempt to work out a 
     schedule which meets the employee's needs without unduly 
     disrupting the employing office's operations, subject to the 
     approval of the health care provider.
       (g) An employing office may waive employees' FMLA notice 
     requirements. In addition, an employing office may not 
     require compliance with stricter FMLA notice requirements 
     where the provisions of a collective bargaining agreement or 
     applicable leave plan allow less advance notice to the 
     employing office. For example, if an employee (or employing 
     office) elects to substitute paid vacation leave for unpaid 
     FMLA leave (see Sec. 825.207), and the employing office's 
     paid vacation leave plan imposes no prior notification 
     requirements for taking such vacation leave, no advance 
     notice may be required for the FMLA leave taken in these 
     circumstances. On the other hand, FMLA notice requirements 
     would apply to a period of unpaid FMLA leave, unless the 
     employing office imposes lesser notice requirements on 
     employees taking leave without pay.

     Sec. 825.303 What are the requirements for an employee to 
       furnish notice to an employing office where the need for 
       FMLA leave is not foreseeable?

       (a) When the approximate timing of the need for leave is 
     not foreseeable, an employee should give notice to the 
     employing office of the need for FMLA leave as soon as 
     practicable under the facts and circumstances of the 
     particular case. It is expected that an employee will give 
     notice to the employing office within no more than one or two 
     working days of learning of the need for leave, except in 
     extraordinary circumstances where such notice is not 
     feasible. In the case of a medical emergency requiring leave 
     because of an employee's own serious health condition or to 
     care for a family member with a serious health condition, 
     written advance notice pursuant to an employing office's 
     internal rules and procedures may not be required when FMLA 
     leave is involved.
       (b) The employee should provide notice to the employing 
     office either in person or by telephone, telegraph, facsimile 
     (``fax'') machine or other electronic means. Notice may be 
     given by the employee's spokesperson (e.g., spouse, adult 
     family member or other responsible party) if the employee is 
     unable to do so personally. The employee need not expressly 
     assert rights under the FMLA, as made applicable by the CAA, 
     or even mention the FMLA, but may only state that leave is 
     needed. The employing office will be expected to obtain any 
     additional required information through informal means. The 
     employee or spokesperson will be expected to provide more 
     information when it can readily be accomplished as a 
     practical matter, taking into consideration the exigencies of 
     the situation.

     Sec. 825.304 What recourse do employing offices have if 
       employees fail to provide the required notice?

       (a) An employing office may waive employees' FMLA notice 
     obligations or the employing office's own internal rules on 
     leave notice requirements.
       (b) If an employee fails to give 30 days notice for 
     foreseeable leave with no reasonable excuse for the delay, 
     the employing office may delay the taking of FMLA leave until 
     at least 30 days after the date the employee provides notice 
     to the employing office of the need for FMLA leave.
       (c) In all cases, in order for the onset of an employee's 
     FMLA leave to be delayed due to lack of required notice, it 
     must be clear that the employee had actual notice of the FMLA 
     notice requirements. This condition would be satisfied by the 
     employing office's proper posting, at the worksite where the 
     employee is employed, of the information regarding the FMLA 
     provided (pursuant to section 301(h)(2) of the CAA) by the 
     Office of Compliance to the employing office in a manner 
     suitable for posting. Furthermore, the need for leave and the 
     approximate date leave would be taken must have been clearly 
     foreseeable to the employee 30 days in advance of the leave. 
     For example, knowledge that an employee would receive a 
     telephone call about the availability of a child for adoption 
     at some unknown point in the future would not be sufficient.

[[Page S 17645]]


     Sec. 825.305 When must an employee provide medical 
       certification to support FMLA leave?

       (a) An employing office may require that an employee's 
     leave to care for the employee's seriously-ill spouse, son, 
     daughter, or parent, or due to the employee's own serious 
     health condition that makes the employee unable to perform 
     one or more of the essential functions of the employee's 
     position, be supported by a certification issued by the 
     health care provider of the employee or the employee's ill 
     family member. An employing office must give notice of a 
     requirement for medical certification each time a 
     certification is required; such notice must be written notice 
     whenever required by Sec. 825.301. An employing office's oral 
     request to an employee to furnish any subsequent medical 
     certification is sufficient.
       (b) When the leave is foreseeable and at least 30 days 
     notice has been provided, the employee should provide the 
     medical certification before the leave begins. When this is 
     not possible, the employee must provide the requested 
     certification to the employing office within the time frame 
     requested by the employing office (which must allow at least 
     15 calendar days after the employing office's request), 
     unless it is not practicable under the particular 
     circumstances to do so despite the employee's diligent, good 
     faith efforts.
       (c) In most cases, the employing office should request that 
     an employee furnish certification from a health care provider 
     at the time the employee gives notice of the need for leave 
     or within two business days thereafter, or, in the case of 
     unforeseen leave, within two business days after the leave 
     commences. The employing office may request certification at 
     some later date if the employing office later has reason to 
     question the appropriateness of the leave or its duration.
       (d) At the time the employing office requests 
     certification, the employing office must also advise an 
     employee of the anticipated consequences of an employee's 
     failure to provide adequate certification. The employing 
     office shall advise an employee whenever the employing office 
     finds a certification incomplete, and provide the employee a 
     reasonable opportunity to cure any such deficiency.
       (e) If the employing office's sick or medical leave plan 
     imposes medical certification requirements that are less 
     stringent than the certification requirements of these 
     regulations, and the employee or employing office elects to 
     substitute paid sick, vacation, personal or family leave for 
     unpaid FMLA leave where authorized (see Sec. 825.207), only 
     the employing office's less stringent sick leave 
     certification requirements may be imposed.

     Sec. 825.306 How much information may be required in medical 
       certifications of a serious health condition?

       (a) The Office of Compliance has made available an optional 
     form (``Certification of Physician or Practitioner'') for 
     employees' (or their family members) use in obtaining medical 
     certification, including second and third opinions, from 
     health care providers that meets FMLA's certification 
     requirements. (See Appendix B to these regulations.) This 
     optional form reflects certification requirements so as to 
     permit the health care provider to furnish appropriate 
     medical information within his or her knowledge.
       (b) The Certification of Physician or Practitioner form is 
     modeled closely on Form WH-380, as revised, which was 
     developed by the Department of Labor (see 29 C.F.R. Part 825, 
     Appendix B). The employing office may use the Office of 
     Compliance's form, or Form WH-380, as revised, or another 
     form containing the same basic information; however, no 
     additional information may be required. In all instances the 
     information on the form must relate only to the serious 
     health condition for which the current need for leave exists. 
     The form identifies the health care provider and type of 
     medical practice (including pertinent specialization, if 
     any), makes maximum use of checklist entries for ease in 
     completing the form, and contains required entries for:
       (1) A certification as to which part of the definition of 
     serious health condition'' (see Sec. 825.114), if any, 
     applies to the patient's condition, and the medical facts 
     which support the certification, including a brief statement 
     as to how the medical facts meet the criteria of the 
     definition.
       (2)(i) The approximate date the serious health condition 
     commenced, and its probable duration, including the probable 
     duration of the patient's present incapacity (defined to mean 
     inability to work, attend school or perform other regular 
     daily activities due to the serious health condition, 
     treatment therefor, or recovery therefrom) if different.
       (ii) Whether it will be necessary for the employee to take 
     leave intermittently or to work on a reduced leave schedule 
     basis (i.e., part-time) as a result of the serious health 
     condition (see Sec. 825.117 and Sec. 825.203), and if so, the 
     probable duration of such schedule.
       (iii) If the condition is pregnancy or a chronic condition 
     within the meaning of Sec. 825.114(a)(2)(iii), whether the 
     patient is presently incapacitated and the likely duration 
     and frequency of episodes of incapacity.
       (3)(i)(A) If additional treatments will be required for the 
     condition, an estimate of the probable number of such 
     treatments.
       (B) If the patient's incapacity will be intermittent, or 
     will require a reduced leave schedule, an estimate of the 
     probable number and interval between such treatments, actual 
     or estimated dates of treatment if known, and period required 
     for recovery if any.
       (ii) If any of the treatments referred to in subparagraph 
     (i) will be provided by another provider of health services 
     (e.g., physical therapist), the nature of the treatments.
       (iii) If a regimen of continuing treatment by the patient 
     is required under the supervision of the health care 
     provider, a general description of the regimen (see 
     Sec. 825.114(b)).
       (4) If medical leave is required for the employee's absence 
     from work because of the employee's own condition (including 
     absences due to pregnancy or a chronic condition), whether 
     the employee:
       (i) is unable to perform work of any kind;
       (ii) is unable to perform any one or more of the essential 
     functions of the employee's position, including a statement 
     of the essential functions the employee is unable to perform 
     (see Sec. 825.115), based on either information provided on a 
     statement from the employing office of the essential 
     functions of the position or, if not provided, discussion 
     with the employee about the employee's job functions; or
       (iii) must be absent from work for treatment.
       (5)(i) If leave is required to care for a family member of 
     the employee with a serious health condition, whether the 
     patient requires assistance for basic medical or personal 
     needs or safety, or for transportation; or if not, whether 
     the employee's presence to provide psychological comfort 
     would be beneficial to the patient or assist in the patient's 
     recovery. The employee is required to indicate on the form 
     the care he or she will provide and an estimate of the 
     time period.
       (ii) If the employee's family member will need care only 
     intermittently or on a reduced leave schedule basis (i.e., 
     part-time), the probable duration of the need.
       (c) If the employing office's sick or medical leave plan 
     requires less information to be furnished in medical 
     certifications than the certification requirements of these 
     regulations, and the employee or employing office elects to 
     substitute paid sick, vacation, personal or family leave for 
     unpaid FMLA leave where authorized (see Sec. 825.207), only 
     the employing office's lesser sick leave certification 
     requirements may be imposed.

     Sec. 825.307 What may an employing office do if it questions 
       the adequacy of a medical certification?

       (a) If an employee submits a complete certification signed 
     by the health care provider, the employing office may not 
     request additional information from the employee's health 
     care provider. However, a health care provider representing 
     the employing office may contact the employee's health care 
     provider, with the employee's permission, for purposes of 
     clarification and authenticity of the medical certification.
       (1) If an employee is on FMLA leave running concurrently 
     with a workers'' compensation absence, and the provisions of 
     the workers'' compensation statute permit the employing 
     office or the employing office's representative to have 
     direct contact with the employee's workers'' compensation 
     health care provider, the employing office may follow the 
     workers'' compensation provisions.
       (2) An employing office that has reason to doubt the 
     validity of a medical certification may require the employee 
     to obtain a second opinion at the employing office's expense. 
     Pending receipt of the second (or third) medical opinion, the 
     employee is provisionally entitled to the benefits of the 
     FMLA as made applicable by the CAA, including maintenance of 
     group health benefits. If the certifications do not 
     ultimately establish the employee's entitlement to FMLA 
     leave, the leave shall not be designated as FMLA leave and 
     may be treated as paid or unpaid leave under the employing 
     office's established leave policies. The employing office is 
     permitted to designate the health care provider to furnish 
     the second opinion, but the selected health care provider may 
     not be employed on a regular basis by the employing office. 
     See also paragraphs (e) and (f) of this section.
       (b) The employing office may not regularly contract with or 
     otherwise regularly utilize the services of the health care 
     provider furnishing the second opinion unless the employing 
     office is located in an area where access to health care is 
     extremely limited (e.g., a rural area where no more than one 
     or two doctors practice in the relevant specialty in the 
     vicinity).
       (c) If the opinions of the employee's and the employing 
     office's designated health care providers differ, the 
     employing office may require the employee to obtain 
     certification from a third health care provider, again at the 
     employing office's expense. This third opinion shall be final 
     and binding. The third health care provider must be 
     designated or approved jointly by the employing office and 
     the employee. The employing office and the employee must each 
     act in good faith to attempt to reach agreement on whom to 
     select for the third opinion provider. If the employing 
     office does not attempt in good faith to reach agreement, the 
     employing office will be bound by the first certification. If 
     the employee does not attempt in good faith to reach 
     agreement, the employee will be bound by the second 
     certification. For example, an employee who refuses to agree 
     to see a doctor in the specialty in question may be failing 
     to act in good faith. On the other hand, an employing office 
     that refuses to agree to any doctor on a list of specialists 
     in the appropriate field provided by the employee and 

[[Page S 17646]]
     whom the employee has not previously consulted may be failing to act in 
     good faith.
       (d) The employing office is required to provide the 
     employee with a copy of the second and third medical 
     opinions, where applicable, upon request by the employee. 
     Requested copies are to be provided within two business days 
     unless extenuating circumstances prevent such action.
       (e) If the employing office requires the employee to obtain 
     either a second or third opinion the employing office must 
     reimburse an employee or family member for any reasonable out 
     of pocket'' travel expenses incurred to obtain the second and 
     third medical opinions. The employing office may not require 
     the employee or family member to travel outside normal 
     commuting distance for purposes of obtaining the second or 
     third medical opinions except in very unusual circumstances.
       (f) In circumstances when the employee or a family member 
     is visiting in another country, or a family member resides in 
     another country, and a serious health condition develops, the 
     employing office shall accept a medical certification as well 
     as second and third opinions from a health care provider who 
     practices in that country.

     Sec. 825.308 Under what circumstances may an employing office 
       request subsequent recertifications of medical conditions?

       (a) For pregnancy, chronic, or permanent/long-term 
     conditions under continuing supervision of a health care 
     provider (as defined in Sec. 825.114(a) (2)(ii), (iii) or 
     (iv)), an employing office may request recertification no 
     more often than every 30 days and only in connection with an 
     absence by the employee, unless:
       (1) Circumstances described by the previous certification 
     have changed significantly (e.g., the duration or frequency 
     of absences, the severity of the condition, complications); 
     or
       (2) The employing office receives information that casts 
     doubt upon the employee's stated reason for the absence.
       (b)(1) If the minimum duration of the period of incapacity 
     specified on a certification furnished by the health care 
     provider is more than 30 days, the employing office may not 
     request recertification until that minimum duration has 
     passed unless one of the conditions set forth in paragraph 
     (c)(1), (2) or (3) of this section is met.
       (2) For FMLA leave taken intermittently or on a reduced 
     leave schedule basis, the employing office may not request 
     recertification in less than the minimum period specified on 
     the certification as necessary for such leave (including 
     treatment) unless one of the conditions set forth in 
     paragraph (c)(1), (2) or (3) of this section is met.
       (c) For circumstances not covered by paragraphs (a) or (b) 
     of this section, an employing office may request 
     recertification at any reasonable interval, but not more 
     often than every 30 days, unless:
       (1) The employee requests an extension of leave;
       (2) Circumstances described by the previous certification 
     have changed significantly (e.g., the duration of the 
     illness, the nature of the illness, complications); or
       (3) The employing office receives information that casts 
     doubt upon the continuing validity of the certification.
       (d) The employee must provide the requested recertification 
     to the employing office within the time frame requested by 
     the employing office (which must allow at least 15 calendar 
     days after the employing office's request), unless it is not 
     practicable under the particular circumstances to do so 
     despite the employee's diligent, good faith efforts.
       (e) Any recertification requested by the employing office 
     shall be at the employee's expense unless the employing 
     office provides otherwise. No second or third opinion on 
     recertification may be required.

     Sec. 825.309 What notice may an employing office require 
       regarding an employee's intent to return to work?

       (a) An employing office may require an employee on FMLA 
     leave to report periodically on the employee's status and 
     intent to return to work. The employing office's policy 
     regarding such reports may not be discriminatory and must 
     take into account all of the relevant facts and circumstances 
     related to the individual employee's leave situation.
       (b) If an employee gives unequivocal notice of intent not 
     to return to work, the employing office's obligations under 
     FMLA, as made applicable by the CAA, to maintain health 
     benefits (subject to applicable requirements of law) and to 
     restore the employee cease. However, these obligations 
     continue if an employee indicates he or she may be unable to 
     return to work but expresses a continuing desire to do so.
       (c) It may be necessary for an employee to take more leave 
     than originally anticipated. Conversely, an employee may 
     discover after beginning leave that the circumstances have 
     changed and the amount of leave originally anticipated is no 
     longer necessary. An employee may not be required to take 
     more FMLA leave than necessary to resolve the circumstance 
     that precipitated the need for leave. In both of these 
     situations, the employing office may require that the 
     employee provide the employing office reasonable notice 
     (i.e., within two business days) of the changed circumstances 
     where foreseeable. The employing office may also obtain 
     information on such changed circumstances through requested 
     status reports.

     Sec. 825.310 Under what circumstances may an employing office 
       require that an employee submit a medical certification 
       that the employee is able (or unable) to return to work 
       (i.e., a ``fitness-for-duty'' report)?

       (a) As a condition of restoring an employee whose FMLA 
     leave was occasioned by the employee's own serious health 
     condition that made the employee unable to perform the 
     employee's job, an employing office may have a uniformly-
     applied policy or practice that requires all similarly-
     situated employees (i.e., same occupation, same serious 
     health condition) who take leave for such conditions to 
     obtain and present certification from the employee's health 
     care provider that the employee is able to resume work.
       (b) If the terms of a collective bargaining agreement 
     govern an employee's return to work, those provisions shall 
     be applied. Similarly, requirements under the Americans with 
     Disabilities Act (ADA), as made applicable by the CAA, that 
     any return-to-work physical be job-related and consistent 
     with business necessity apply. For example, an attorney could 
     not be required to submit to a medical examination or inquiry 
     just because her leg had been amputated. The essential 
     functions of an attorney's job do not require use of both 
     legs; therefore such an inquiry would not be job related. An 
     employing office may require a warehouse laborer, whose back 
     impairment affects the ability to lift, to be examined by an 
     orthopedist, but may not require this employee to submit to 
     an HIV test where the test is not related to either the 
     essential functions of his/her job or to his/her impairment.
       (c) An employing office may seek fitness-for-duty 
     certification only with regard to the particular health 
     condition that caused the employee's need for FMLA leave. The 
     certification itself need only be a simple statement of an 
     employee's ability to return to work. A health care provider 
     employed by the employing office may contact the employee's 
     health care provider with the employee's permission, for 
     purposes of clarification of the employee's fitness to return 
     to work. No additional information may be acquired, and 
     clarification may be requested only for the serious health 
     condition for which FMLA leave was taken. The employing 
     office may not delay the employee's return to work while 
     contact with the health care provider is being made.
       (d) The cost of the certification shall be borne by the 
     employee and the employee is not entitled to be paid for the 
     time or travel costs spent in acquiring the certification.
       (e) The notice that employing offices are required to give 
     to each employee giving notice of the need for FMLA leave 
     regarding their FMLA rights and obligations as made 
     applicable by the CAA (see Sec. 825.301) shall advise the 
     employee if the employing office will require fitness-for-
     duty certification to return to work. If the employing office 
     has a handbook explaining employment policies and benefits, 
     the handbook should explain the employing office's general 
     policy regarding any requirement for fitness-for-duty 
     certification to return to work. Specific notice shall also 
     be given to any employee from whom fitness-for-duty 
     certification will be required either at the time notice of 
     the need for leave is given or immediately after leave 
     commences and the employing office is advised of the medical 
     circumstances requiring the leave, unless the employee's 
     condition changes from one that did not previously require 
     certification pursuant to the employing office's practice or 
     policy. No second or third fitness-for-duty certification may 
     be required.
       (f) An employing office may delay restoration to employment 
     until an employee submits a required fitness-for-duty 
     certification unless the employing office has failed to 
     provide the notices required in paragraph (e) of this 
     section.
       (g) An employing office is not entitled to certification of 
     fitness to return to duty when the employee takes 
     intermittent leave as described in Sec. 825.203.
       (h) When an employee is unable to return to work after FMLA 
     leave because of the continuation, recurrence, or onset of 
     the employee's or family member's serious health condition, 
     thereby preventing the employing office from recovering its 
     share of health benefit premium payments made on the 
     employee's behalf during a period of unpaid FMLA leave, the 
     employing office may require medical certification of the 
     employee's or the family member's serious health condition. 
     (See Sec. 825.213(a)(3).) The cost of the certification shall 
     be borne by the employee and the employee is not entitled to 
     be paid for the time or travel costs spent in acquiring the 
     certification.

     Sec. 825.311 What happens if an employee fails to satisfy the 
       medical certification and/or recertification requirements?

       (a) In the case of foreseeable leave, an employing office 
     may delay the taking of FMLA leave to an employee who fails 
     to provide timely certification after being requested by the 
     employing office to furnish such certification (i.e., within 
     15 calendar days, if practicable), until the required 
     certification is provided.
       (b) When the need for leave is not foreseeable, or in the 
     case of recertification, an employee must provide 
     certification (or recertification) within the time frame 
     requested by the employing office (which must 

[[Page S 17647]]
     allow at least 15 days after the employing office's request) or as soon 
     as reasonably possible under the particular facts and 
     circumstances. In the case of a medical emergency, it may not 
     be practicable for an employee to provide the required 
     certification within 15 calendar days. If an employee fails 
     to provide a medical certification within a reasonable time 
     under the pertinent circumstances, the employing office may 
     delay the employee's continuation of FMLA leave. If the 
     employee never produces the certification, the leave is not 
     FMLA leave.
       (c) When requested by the employing office pursuant to a 
     uniformly applied policy for similarly-situated employees, 
     the employee must provide medical certification at the time 
     the employee seeks reinstatement at the end of FMLA leave 
     taken for the employee's serious health condition, that the 
     employee is fit for duty and able to return to work (see 
     Sec. 825.310(a)) if the employing office has provided the 
     required notice (see Sec. 825.301(c); the employing office 
     may delay restoration until the certification is provided. In 
     this situation, unless the employee provides either a 
     fitness-for-duty certification or a new medical certification 
     for a serious health condition at the time FMLA leave is 
     concluded, the employee may be terminated. See also 
     Sec. 825.213(a)(3).

     Sec. 825.312 Under what circumstances may an employing office 
       refuse to provide FMLA leave or reinstatement to eligible 
       employees?

       (a) If an employee fails to give timely advance notice when 
     the need for FMLA leave is foreseeable, the employing office 
     may delay the taking of FMLA leave until 30 days after the 
     date the employee provides notice to the employing office of 
     the need for FMLA leave. (See Sec. 825.302.)
       (b) If an employee fails to provide in a timely manner a 
     requested medical certification to substantiate the need for 
     FMLA leave due to a serious health condition, an employing 
     office may delay continuation of FMLA leave until an employee 
     submits the certificate. (See Sec. Sec. 825.305 and 825.311.) 
     If the employee never produces the certification, the leave 
     is not FMLA leave.
       (c) If an employee fails to provide a requested fitness-
     for-duty certification to return to work, an employing office 
     may delay restoration until the employee submits the 
     certificate. (See Sec. Sec. 825.310 and 825.311.)
       (d) An employee has no greater right to reinstatement or to 
     other benefits and conditions of employment than if the 
     employee had been continuously employed during the FMLA leave 
     period. Thus, an employee's rights to continued leave, 
     maintenance of health benefits, and restoration cease under 
     FMLA, as made applicable by the CAA, if and when the 
     employment relationship terminates (e.g., layoff), unless 
     that relationship continues, for example, by the employee 
     remaining on paid FMLA leave. If the employee is recalled or 
     otherwise re-employed, an eligible employee is immediately 
     entitled to further FMLA leave for an FMLA-qualifying reason. 
     An employing office must be able to show, when an employee 
     requests restoration, that the employee would not otherwise 
     have been employed if leave had not been taken in order to 
     deny restoration to employment. (See Sec. 825.216.)
       (e) An employing office may require an employee on FMLA 
     leave to report periodically on the employee's status and 
     intention to return to work. (See Sec. 825.309.) If an 
     employee unequivocally advises the employing office either 
     before or during the taking of leave that the employee does 
     not intend to return to work, and the employment relationship 
     is terminated, the employee's entitlement to continued leave, 
     maintenance of health benefits, and restoration ceases unless 
     the employment relationship continues, for example, by the 
     employee remaining on paid leave. An employee may not be 
     required to take more leave than necessary to address the 
     circumstances for which leave was taken. If the employee is 
     able to return to work earlier than anticipated, the employee 
     shall provide the employing office two business days notice 
     where feasible; the employing office is required to restore 
     the employee once such notice is given, or where such prior 
     notice was not feasible.
       (f) An employing office may deny restoration to employment, 
     but not the taking of FMLA leave and the maintenance of 
     health benefits, to an eligible employee only under the terms 
     of the key employee'' exemption. Denial of reinstatement must 
     be necessary to prevent substantial and grievous economic 
     injury'' to the employing office's operations. The employing 
     office must notify the employee of the employee's status as a 
     key employee'' and of the employing office's intent to deny 
     reinstatement on that basis when the employing office makes 
     these determinations. If leave has started, the employee must 
     be given a reasonable opportunity to return to work after 
     being so notified. (See Sec. 825.219.)
       (g) An employee who fraudulently obtains FMLA leave from an 
     employing office is not protected by job restoration or 
     maintenance of health benefits provisions of the FMLA as made 
     applicable by the CAA.
       (h) If the employing office has a uniformly-applied policy 
     governing outside or supplemental employment, such a policy 
     may continue to apply to an employee while on FMLA leave. An 
     employing office which does not have such a policy may not 
     deny benefits to which an employee is entitled under FMLA as 
     made applicable by the CAA on this basis unless the FMLA 
     leave was fraudulently obtained as in paragraph (g) of this 
     section.


      Subpart D--What Enforcement Mechanisms Does the CAA Provide?

     Sec. 825.400 What can employees do who believe that their 
       rights under the FMLA as made applicable by the CAA have 
       been violated?

       (a) To commence a proceeding, a covered employee alleging a 
     violation of the rights and protections of the FMLA made 
     applicable by the CAA must request counseling by the Office 
     of Compliance not later than 180 days after the date of the 
     alleged violation. If a covered employee misses this 
     deadline, the covered employee will be unable to obtain a 
     remedy under the CAA.
       (b) The following procedures are available under title IV 
     of the CAA for covered employees who believe that their 
     rights under FMLA as made applicable by the CAA have been 
     violated:
       (1) counseling;
       (2) mediation; and
       (3) election of either--
       (A) a formal complaint, filed with the Office of 
     Compliance, and a hearing before a hearing officer, subject 
     to review by the Board of Directors of the Office of 
     Compliance, and judicial review in the United States Court of 
     Appeals for the Federal Circuit; or
       (B) a civil action in a district court of the United 
     States.
       (c) Regulations of the Office of Compliance describing and 
     governing these procedures are found at [proposed rules can 
     be found at 141 Cong. Rec. S17012 (November 14, 1995)].

     Sec. 825.401 [Reserved.]

     Sec. 825.402 [Reserved.]

     Sec. 825.403 [Reserved.]

     Sec. 825.404 [Reserved.]


                         Subpart E--[Reserved.]

      Subpart F--What Special Rules Apply to Employees of Schools?

     Sec. 825.600 To whom do the special rules apply?

       (a) Certain special rules apply to employees of ``local 
     educational agencies,'' including public school boards and 
     elementary schools under their jurisdiction, and private 
     elementary and secondary schools. The special rules do not 
     apply to other kinds of educational institutions, such as 
     colleges and universities, trade schools, and preschools.
       (b) Educational institutions are covered by FMLA as made 
     applicable by the CAA (and these special rules). The usual 
     requirements for employees to be ``eligible'' do apply, 
     however.
       (c) The special rules affect the taking of intermittent 
     leave or leave on a reduced leave schedule, or leave near the 
     end of an academic term (semester), by instructional 
     employees. ``Instructional employees'' are those whose 
     principal function is to teach and instruct students in a 
     class, a small group, or an individual setting. This term 
     includes not only teachers, but also athletic coaches, 
     driving instructors, and special education assistants such as 
     signers for the hearing impaired. It does not include, and 
     the special rules do not apply to, teacher assistants or 
     aides who do not have as their principal job actual teaching 
     or instructing, nor does it include auxiliary personnel such 
     as counselors, psychologists, or curriculum specialists. It 
     also does not include cafeteria workers, maintenance workers, 
     or bus drivers.
       (d) Special rules which apply to restoration to an 
     equivalent position apply to all employees of local 
     educational agencies.

     Sec. 825.601 What limitations apply to the taking of 
       intermittent leave or leave on a reduced leave schedule?

       (a) Leave taken for a period that ends with the school year 
     and begins the next semester is leave taken consecutively 
     rather than intermittently. The period during the summer 
     vacation when the employee would not have been required to 
     report for duty is not counted against the employee's FMLA 
     leave entitlement. An instructional employee who is on FMLA 
     leave at the end of the school year must be provided with any 
     benefits over the summer vacation that employees would 
     normally receive if they had been working at the end of the 
     school year.
       (1) If an eligible instructional employee needs 
     intermittent leave or leave on a reduced leave schedule to 
     care for a family member, or for the employee's own serious 
     health condition, which is foreseeable based on planned 
     medical treatment, and the employee would be on leave for 
     more than 20 percent of the total number of working days over 
     the period the leave would extend, the employing office may 
     require the employee to choose either to:
       (i) Take leave for a period or periods of a particular 
     duration, not greater than the duration of the planned 
     treatment; or
       (ii) Transfer temporarily to an available alternative 
     position for which the employee is qualified, which has 
     equivalent pay and benefits and which better accommodates 
     recurring periods of leave than does the employee's regular 
     position.
       (2) These rules apply only to a leave involving more than 
     20 percent of the working days during the period over which 
     the leave extends. For example, if an instructional employee 
     who normally works five days each week needs to take two days 
     of FMLA leave 

[[Page S 17648]]
     per week over a period of several weeks, the special rules would apply. 
     Employees taking leave which constitutes 20 percent or less 
     of the working days during the leave period would not be 
     subject to transfer to an alternative position. ``Periods of 
     a particular duration'' means a block, or blocks, of time 
     beginning no earlier than the first day for which leave is 
     needed and ending no later than the last day on which leave 
     is needed, and may include one uninterrupted period of leave.
       (b) If an instructional employee does not give required 
     notice of foreseeable FMLA leave (see Sec. 825.302) to be 
     taken intermittently or on a reduced leave schedule, the 
     employing office may require the employee to take leave of a 
     particular duration, or to transfer temporarily to an 
     alternative position. Alternatively, the employing office may 
     require the employee to delay the taking of leave until the 
     notice provision is met. See Sec. 825.207(h).

     Sec. 825.602 What limitations apply to the taking of leave 
       near the end of an academic term?

       (a) There are also different rules for instructional 
     employees who begin leave more than five weeks before the end 
     of a term, less than five weeks before the end of a term, and 
     less than three weeks before the end of a term. Regular rules 
     apply except in circumstances when:
       (1) An instructional employee begins leave more than five 
     weeks before the end of a term. The employing office may 
     require the employee to continue taking leave until the 
     end of the term if--
       (i) The leave will last at least three weeks, and
       (ii) The employee would return to work during the three-
     week period before the end of the term.
       (2) The employee begins leave for a purpose other than the 
     employee's own serious health condition during the five-week 
     period before the end of a term. The employing office may 
     require the employee to continue taking leave until the end 
     of the term if--
       (i) The leave will last more than two weeks, and
       (ii) The employee would return to work during the two-week 
     period before the end of the term.
       (3) The employee begins leave for a purpose other than the 
     employee's own serious health condition during the three-week 
     period before the end of a term, and the leave will last more 
     than five working days. The employing office may require the 
     employee to continue taking leave until the end of the term.
       (b) For purposes of these provisions, ``academic term'' 
     means the school semester, which typically ends near the end 
     of the calendar year and the end of spring each school year. 
     In no case may a school have more than two academic terms or 
     semesters each year for purposes of FMLA as made applicable 
     by the CAA. An example of leave falling within these 
     provisions would be where an employee plans two weeks of 
     leave to care for a family member which will begin three 
     weeks before the end of the term. In that situation, the 
     employing office could require the employee to stay out on 
     leave until the end of the term.

     Sec. 825.603 Is all leave taken during ``periods of a 
       particular duration'' counted against the FMLA leave 
       entitlement?

       (a) If an employee chooses to take leave for ``periods of a 
     particular duration'' in the case of intermittent or reduced 
     schedule leave, the entire period of leave taken will count 
     as FMLA leave.
       (b) In the case of an employee who is required to take 
     leave until the end of an academic term, only the period of 
     leave until the employee is ready and able to return to work 
     shall be charged against the employee's FMLA leave 
     entitlement. The employing office has the option not to 
     require the employee to stay on leave until the end of the 
     school term. Therefore, any additional leave required by the 
     employing office to the end of the school term is not counted 
     as FMLA leave; however, the employing office shall be 
     required to maintain the employee's group health insurance 
     and restore the employee to the same or equivalent job 
     including other benefits at the conclusion of the leave.

     Sec. 825.604 What special rules apply to restoration to ``an 
       equivalent position?''

       The determination of how an employee is to be restored to 
     ``an equivalent position'' upon return from FMLA leave will 
     be made on the basis of ``established school board policies 
     and practices, private school policies and practices, and 
     collective bargaining agreements.'' The ``established 
     policies'' and collective bargaining agreements used as a 
     basis for restoration must be in writing, must be made known 
     to the employee prior to the taking of FMLA leave, and must 
     clearly explain the employee's restoration rights upon return 
     from leave. Any established policy which is used as the basis 
     for restoration of an employee to ``an equivalent position'' 
     must provide substantially the same protections as provided 
     in the FMLA, as made applicable by the CAA, for reinstated 
     employees. See Sec. 825.215. In other words, the policy or 
     collective bargaining agreement must provide for restoration 
     to an ``equivalent position'' with equivalent employment 
     benefits, pay, and other terms and conditions of employment. 
     For example, an employee may not be restored to a position 
     requiring additional licensure or certification.


     Subpart G--How Do Other Laws, Employing Office Practices, and 
Collective Bargaining Agreements Affect Employee Rights Under the FMLA 
                     as Made Applicable by the CAA?

     Sec. 825.700 What if an employing office provides more 
       generous benefits than required by FMLA as Made Applicable 
       by the CAA?

       (a) An employing office must observe any employment benefit 
     program or plan that provides greater family or medical leave 
     rights to employees than the rights established by the FMLA. 
     Conversely, the rights established by the FMLA, as made 
     applicable by the CAA, may not be diminished by any 
     employment benefit program or plan. For example, a provision 
     of a CBA which provides for reinstatement to a position that 
     is not equivalent because of seniority (e.g., provides lesser 
     pay) is superseded by FMLA. If an employing office provides 
     greater unpaid family leave rights than are afforded by FMLA, 
     the employing office is not required to extend additional 
     rights afforded by FMLA, such as maintenance of health 
     benefits (other than as may be otherwise required by law), to 
     the additional leave period not covered by FMLA. If an 
     employee takes paid or unpaid leave and the employing office 
     does not designate the leave as FMLA leave, the leave taken 
     does not count against an employee's FMLA entitlement.
       (b) Nothing in this FMLA, as made applicable by the CAA, 
     prevents an employing office from amending existing leave and 
     employee benefit programs, provided they comply with FMLA as 
     made applicable by the CAA. However, nothing in the FMLA, as 
     made applicable by the CAA, is intended to discourage 
     employing offices from adopting or retaining more generous 
     leave policies.
       (c) [Reserved.]

     Sec. 825.701 [Reserved.]

     Sec. 825.702 How does FMLA affect anti-discrimination laws as 
       applied by section 201 of the CAA?

       (a) Nothing in FMLA modifies or affects any applicable law 
     prohibiting discrimination on the basis of race, religion, 
     color, national origin, sex, age, or disability (e.g., Title 
     VII of the Civil Rights Act of 1964, as amended by the 
     Pregnancy Discrimination Act), as made applicable by the CAA. 
     FMLA's legislative history explains that FMLA is ``not 
     intended to modify or affect the Rehabilitation Act of 1973, 
     as amended, the regulations concerning employment which have 
     been promulgated pursuant to that statute, or the Americans 
     with Disabilities Act of 1990, or the regulations issued 
     under that act. Thus, the leave provisions of the [FMLA] are 
     wholly distinct from the reasonable accommodation obligations 
     of employing offices covered under the [ADA] * * * or the 
     Federal government itself. The purpose of the FMLA is to make 
     leave available to eligible employees and employing 
     offices within its coverage, and not to limit already 
     existing rights and protection.'' S. Rep. No. 3, 103d 
     Cong., 1st Sess. 38 (1993). An employing office must 
     therefore provide leave under whichever statutory 
     provision provides the greater rights to employees.
       (b) If an employee is a qualified individual with a 
     disability within the meaning of the Americans with 
     Disabilities Act (ADA), the employing office must make 
     reasonable accommodations, etc., barring undue hardship, in 
     accordance with the ADA. At the same time, the employing 
     office must afford an employee his or her FMLA rights. ADA's 
     ``disability'' and FMLA's ``serious health condition'' are 
     different concepts, and must be analyzed separately. FMLA 
     entitles eligible employees to 12 weeks of leave in any 12-
     month period, whereas the ADA allows an indeterminate amount 
     of leave, barring undue hardship, as a reasonable 
     accommodation. FMLA requires employing offices to maintain 
     employees'' group health plan coverage during FMLA leave on 
     the same conditions as coverage would have been provided if 
     the employee had been continuously employed during the leave 
     period, whereas ADA does not require maintenance of health 
     insurance unless other employees receive health insurance 
     during leave under the same circumstances.
       (c)(1) A reasonable accommodation under the ADA might be 
     accomplished by providing an individual with a disability 
     with a part-time job with no health benefits, assuming the 
     employing office did not ordinarily provide health insurance 
     for part-time employees. However, FMLA would permit an 
     employee to work a reduced leave schedule until the 
     equivalent of 12 workweeks of leave were used, with group 
     health benefits maintained during this period. FMLA permits 
     an employing office to temporarily transfer an employee who 
     is taking leave intermittently or on a reduced leave schedule 
     to an alternative position, whereas the ADA allows an 
     accommodation of reassignment to an equivalent, vacant 
     position only if the employee cannot perform the essential 
     functions of the employee's present position and an 
     accommodation is not possible in the employee's present 
     position, or an accommodation in the employee's present 
     position would cause an undue hardship. The examples in the 
     following paragraphs of this section demonstrate how the two 
     laws would interact with respect to a qualified individual 
     with a disability.
       (2) A qualified individual with a disability who is also an 
     ``eligible employee'' entitled to FMLA leave requests 10 
     weeks of medical leave as a reasonable accommodation, which 

[[Page S 17649]]
     the employing office grants because it is not an undue hardship. The 
     employing office advises the employee that the 10 weeks of 
     leave is also being designated as FMLA leave and will count 
     towards the employee's FMLA leave entitlement. This 
     designation does not prevent the parties from also treating 
     the leave as a reasonable accommodation and reinstating the 
     employee into the same job, as required by the ADA, rather 
     than an equivalent position under FMLA, if that is the 
     greater right available to the employee. At the same time, 
     the employee would be entitled under FMLA to have the 
     employing office maintain group health plan coverage during 
     the leave, as that requirement provides the greater right to 
     the employee.
       (3) If the same employee needed to work part-time (a 
     reduced leave schedule) after returning to his or her same 
     job, the employee would still be entitled under FMLA to have 
     group health plan coverage maintained for the remainder of 
     the two-week equivalent of FMLA leave entitlement, 
     notwithstanding an employing office policy that part-time 
     employees do not receive health insurance. This employee 
     would be entitled under the ADA to reasonable accommodations 
     to enable the employee to perform the essential functions of 
     the part-time position. In addition, because the employee is 
     working a part-time schedule as a reasonable accommodation, 
     the employee would be shielded from FMLA's provision for 
     temporary assignment to a different alternative position. 
     Once the employee has exhausted his or her remaining FMLA 
     leave entitlement while working the reduced (part-time) 
     schedule, if the employee is a qualified individual with a 
     disability, and if the employee is unable to return to the 
     same full-time position at that time, the employee might 
     continue to work part-time as a reasonable accommodation, 
     barring undue hardship; the employee would then be entitled 
     to only those employment benefits ordinarily provided by the 
     employing office to part-time employees.
       (4) At the end of the FMLA leave entitlement, an employing 
     office is required under FMLA to reinstate the employee in 
     the same or an equivalent position, with equivalent pay and 
     benefits, to that which the employee held when leave 
     commenced. The employing office's FMLA obligations would be 
     satisfied if the employing office offered the employee an 
     equivalent full-time position. If the employee were unable to 
     perform the essential functions of that equivalent position 
     even with reasonable accommodation, because of a disability, 
     the ADA may require the employing office to make a reasonable 
     accommodation at that time by allowing the employee to work 
     part-time or by reassigning the employee to a vacant 
     position, barring undue hardship.
       (d)(1) If FMLA entitles an employee to leave, an employing 
     office may not, in lieu of FMLA leave entitlement, require an 
     employee to take a job with a reasonable accommodation. 
     However, ADA may require that an employing office offer an 
     employee the opportunity to take such a position. An 
     employing office may not change the essential functions of 
     the job in order to deny FMLA leave. See Sec. 825.220(b).
       (2) An employee may be on a workers' compensation absence 
     due to an on-the-job injury or illness which also qualifies 
     as a serious health condition under FMLA. The workers' 
     compensation absence and FMLA leave may run concurrently 
     (subject to proper notice and designation by the employing 
     office). At some point the health care provider providing 
     medical care pursuant to the workers' compensation injury may 
     certify the employee is able to return to work in a ``light 
     duty'' position. If the employing office offers such a 
     position, the employee is permitted but not required to 
     accept the position (see Sec. 825.220(d)). As a result, the 
     employee may no longer qualify for payments from the workers' 
     compensation benefit plan, but the employee is entitled to 
     continue on unpaid FMLA leave either until the employee is 
     able to return to the same or equivalent job the employee 
     left or until the 12-week FMLA leave entitlement is 
     exhausted. See Sec. 825.207(d)(2). If the employee returning 
     from the workers' compensation injury is a qualified 
     individual with a disability, he or she will have rights 
     under the ADA.
       (e) If an employing office requires certifications of an 
     employee's fitness for duty to return to work, as permitted 
     by FMLA under a uniform policy, it must comply with the ADA 
     requirement that a fitness for duty physical be job-related 
     and consistent with business necessity.
       (f) Under Title VII of the Civil Rights Act of 1964, as 
     amended by the Pregnancy Discrimination Act, and as made 
     applicable by the CAA, an employing office should provide the 
     same benefits for women who are pregnant as the employing 
     office provides to other employees with short-term 
     disabilities. Because Title VII does not require employees to 
     be employed for a certain period of time to be protected, an 
     employee employed for less than 12 months by the employing 
     office (and, therefore, not an ``eligible'' employee under 
     FMLA) may not be denied maternity leave if the employing 
     office normally provides short-term disability benefits to 
     employees with the same tenure who are experiencing other 
     short-term disabilities.
       (g) For further information on Federal anti-discrimination 
     laws applied by section 201 of the CAA, including Title VII 
     and the ADA, individuals are encouraged to contact the Office 
     of Compliance.


                         Subpart H--Definitions

     Sec. 825.800 Definitions.

        For purposes of this part:
        ADA means the Americans With Disabilities Act (42 U.S.C. 
     12101 et seq.).
        CAA means the Congressional Accountability Act of 1995, 
     Pub. Law 104-1, 101 Stat. 3, 2 U.S.C. Sec. 1301.
        Continuing treatment means: A serious health condition 
     involving continuing treatment by a health care provider 
     includes any one or more of the following:
        (1) A period of incapacity (i.e., inability to work, 
     attend school or perform other regular daily activities due 
     to the serious health condition, treatment therefor, or 
     recovery therefrom) of more than three consecutive calendar 
     days, and any subsequent treatment or period of incapacity 
     relating to the same condition, that also involves:
        (i) Treatment two or more times by a health care provider, 
     by a nurse or physician's assistant under direct supervision 
     of a health care provider, or by a provider of health care 
     services (e.g., physical therapist) under orders of, or on 
     referral by, a health care provider; or
        (ii) Treatment by a health care provider on at least one 
     occasion which results in a regimen of continuing treatment 
     under the supervision of the health care provider.
        (2) Any period of incapacity due to pregnancy, or for 
     prenatal care.
        (3) Any period of incapacity or treatment for such 
     incapacity due to a chronic serious health condition. A 
     chronic serious health condition is one which:
        (i) Requires periodic visits for treatment by a health 
     care provider, or by a nurse or physician's assistant under 
     direct supervision of a health care provider;
        (ii) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
        (iii) May cause episodic rather than a continuing period 
     of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
        (4) A period of incapacity which is permanent or long-term 
     due to a condition for which treatment may not be effective. 
     The employee or family member must be under the continuing 
     supervision of, but need not be receiving active treatment 
     by, a health care provider. Examples include Alzheimer's, a 
     severe stroke, or the terminal stages of a disease.
        (5) Any period of absence to receive multiple treatments 
     (including any period of recovery therefrom) by a health care 
     provider or by a provider of health care services under 
     orders of, or on referral by, a health care provider, either 
     for restorative surgery after an accident or other injury, or 
     for a condition that would likely result in a period of 
     incapacity of more than three consecutive calendar days in 
     the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
        Covered employee means any employee of--(1) the House of 
     Representatives; (2) the Senate; (3) the Capitol Guide 
     Service; (4) the Capitol Police; (5) the Congressional Budget 
     Office; (6) the Office of the Architect of the Capitol; (7) 
     the Office of the Attending Physician; (8) the Office of 
     Compliance; or (9) the Office of Technology Assessment.
        Employee of the Office of the Architect of the Capitol.--
     The term ``employee of the Office of the Architect of the 
     Capitol includes any employee of the Office of the Architect 
     of the Capitol, the Botanic Garden, or the Senate 
     Restaurants.
       Employee of the Capitol Police.--The term ``employee of the 
     Capitol Police'' includes any member or officer of the 
     Capitol Police.
        Employee of the House of Representatives--The term 
     ``employee of the House of Representatives'' includes an 
     individual occupying a position the pay for which is 
     disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by any 
     entity listed in subparagraphs (3) through (9) under 
     ``covered employee'' above.
       Employee of the Senate.--The term ``employee of the 
     Senate'' includes any employee whose pay is disbursed by the 
     Secretary of the Senate, but not any such individual employed 
     by any entity listed in subparagraphs (3) through (9) under 
     ``covered employee'' above.
       Eligible employee means a covered employee who has been 
     employed in any employing office for 12 months and for at 
     least 1,250 hours of employment during the previous 12 
     months.
       Employee means an employee as defined under the CAA and 
     includes an applicant for employment and a former employee.
       Employee employed in an instructional capacity. See 
     Teacher.
        Employing Office means: (1) the personal office of a 
     Member of the House of Representatives or of a Senator; (2) a 
     committee of the House of Representatives or the Senate or a 
     joint committee; (3) any other office headed by a person with 
     the final authority to appoint, hire, discharge, and set the 
     terms, conditions, or privileges of the employment of an 
     employee of the House of Representatives or the Senate; or 
     (4) the Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment.

[[Page S 17650]]

        Employment benefits means all benefits provided or made 
     available to employees by an employing office, including 
     group life insurance, health insurance, disability insurance, 
     sick leave, annual leave, educational benefits, and pensions, 
     regardless of whether such benefits are provided by a 
     practice or written policy of an employing office or through 
     an employee benefit plan. The term does not include non-
     employment related obligations paid by employees through 
     voluntary deductions such as supplemental insurance coverage. 
     (See Sec. 825.209(a)).
        FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et 
     seq.).
        FMLA means the Family and Medical Leave Act of 1993, 
     Public Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 
     2601 et seq.).
        Group health plan means the Federal Employees Health 
     Benefits Program and any other plan of, or contributed to by, 
     an employing office (including a self-insured plan) to 
     provide health care (directly or otherwise) to the employing 
     office's employees, former employees, or the families of such 
     employees or former employees. For purposes of FMLA as made 
     applicable by the CAA the term ``group health plan'' shall 
     not include an insurance program providing health coverage 
     under which employees purchase individual policies from 
     insurers provided that: (1) no contributions are made by the 
     employing office; (2) participation in the program is 
     completely voluntary for employees; (3) the sole functions of 
     the employing office with respect to the program are, without 
     endorsing the program, to permit the insurer to publicize the 
     program to employees, to collect premiums through payroll 
     deductions and to remit them to the insurer; (4) the 
     employing office receives no consideration in the form of 
     cash or otherwise in connection with the program, other than 
     reasonable compensation, excluding any profit, for 
     administrative services actually rendered in connection with 
     payroll deduction; and, (5) the premium charged with respect 
     to such coverage does not increase in the event the 
     employment relationship terminates.
       Health care provider means: (1) A doctor of medicine or 
     osteopathy who is authorized to practice medicine or surgery 
     by the State in which the doctor practices; or (2) 
     Podiatrists, dentists, clinical psychologists, optometrists, 
     and chiropractors (limited to treatment consisting of manual 
     manipulation of the spine to correct a subluxation as 
     demonstrated by X-ray to exist) authorized to practice in the 
     State and performing within the scope of their practice as 
     defined under State law; and (3) Nurse practitioners, nurse-
     midwives and clinical social workers who are authorized to 
     practice under State law and who are performing within the 
     scope of their practice as defined under State law; and (4) 
     Christian Science practitioners listed with the First Church 
     of Christ, Scientist in Boston, Massachusetts. (5) Any health 
     care provider from whom an employing office or a group health 
     plan's benefits manager will accept certification of the 
     existence of a serious health condition to substantiate a 
     claim for benefits. (6) A health care provider as defined 
     above who practices in a country other than the United 
     States, who is licensed to practice in accordance with the 
     laws and regulations of that country.
       ``Incapable of self-care'' means that the individual 
     requires active assistance or supervision to provide daily 
     self-care in several of the ``activities of daily living'' 
     (ADLs) or ``instrumental activities of daily living'' 
     (IADLs). Activities of daily living include adaptive 
     activities such as caring appropriately for one's grooming 
     and hygiene, bathing, dressing and eating. Instrumental 
     activities of daily living include cooking, cleaning, 
     shopping, taking public transportation, paying bills, 
     maintaining a residence, using telephones and directories, 
     using a post office, etc.
        Instructional employee: See Teacher.
        Intermittent leave means leave taken in separate periods 
     of time due to a single illness or injury, rather than for 
     one continuous period of time, and may include leave of 
     periods from an hour or more to several weeks. Examples of 
     intermittent leave would include leave taken on an occasional 
     basis for medical appointments, or leave taken several days 
     at a time spread over a period of six months, such as for 
     chemotherapy.
        Mental disability: See Physical or mental disability.
        Office of Compliance means the independent office 
     established in the legislative branch under section 301 of 
     the Congressional Accountability Act of 1995.
        Parent means the biological parent of an employee or an 
     individual who stands or stood in loco parentis to an 
     employee when the employee was a child.
        Physical or mental disability means a physical or mental 
     impairment that substantially limits one or more of the major 
     life activities of an individual. Regulations at 29 C.F.R. 
     Part 1630.2(h), (i), and (j), issued by the Equal Employment 
     Opportunity Commission under the Americans with Disabilities 
     Act (ADA), 42 U.S.C. 12101 et seq., define these terms.
        Reduced leave schedule means a leave schedule that reduces 
     the usual number of hours per workweek, or hours per workday, 
     of an employee.
        Secretary means the Secretary of Labor or authorized 
     representative.
        Serious health condition entitling an employee to FMLA 
     leave means: (1) an illness, injury, impairment, or physical 
     or mental condition that involves: (i) Inpatient care (i.e., 
     an overnight stay) in a hospital, hospice, or residential 
     medical care facility, including any period of incapacity 
     (for purposes of this section, defined to mean inability to 
     work, attend school or perform other regular daily activities 
     due to the serious health condition, treatment therefor, or 
     recovery therefrom), or any subsequent treatment in 
     connection with such inpatient care; or (ii) Continuing 
     treatment by a health care provider. A serious health 
     condition involving continuing treatment by a health care 
     provider includes:
        (A) A period of incapacity (i.e., inability to work, 
     attend school or perform other regular daily activities due 
     to the serious health condition, treatment therefor, or 
     recovery therefrom) of more than three consecutive calendar 
     days, including any subsequent treatment or period of 
     incapacity relating to the same condition, that also 
     involves: (1) Treatment two or more times by a health care 
     provider, by a nurse or physician's assistant under direct 
     supervision of a health care provider, or by a provider of 
     health care services (e.g., physical therapist) under 
     orders of, or on referral by, a health care provider; or 
     (2) Treatment by a health care provider on at least one 
     occasion which results in a regimen of continuing 
     treatment under the supervision of the health care 
     provider.
       (B) Any period of incapacity due to pregnancy, or for 
     prenatal care.
       (C) Any period of incapacity or treatment for such 
     incapacity due to a chronic serious health condition. A 
     chronic serious health condition is one which: (1) Requires 
     periodic visits for treatment by a health care provider, or 
     by a nurse or physician's assistant under direct supervision 
     of a health care provider; (2) Continues over an extended 
     period of time (including recurring episodes of a single 
     underlying condition); and (3) May cause episodic rather than 
     a continuing period of incapacity (e.g., asthma, diabetes, 
     epilepsy, etc.).
       (D) A period of incapacity which is permanent or long-term 
     due to a condition for which treatment may not be effective. 
     The employee or family member must be under the continuing 
     supervision of, but need not be receiving active treatment 
     by, a health care provider. Examples include Alzheimer's, a 
     severe stroke, or the terminal stages of a disease.
       (E) Any period of absence to receive multiple treatments 
     (including any period of recovery therefrom) by a health care 
     provider or by a provider of health care services under 
     orders of, or on referral by, a health care provider, either 
     for restorative surgery after an accident or other injury, or 
     for a condition that would likely result in a period of 
     incapacity of more than three consecutive calendar days in 
     the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
       (2) Treatment for purposes of paragraph (1) of this 
     definition includes (but is not limited to) examinations to 
     determine if a serious health condition exists and 
     evaluations of the condition. Treatment does not include 
     routine physical examinations, eye examinations, or dental 
     examinations. Under paragraph (1)(ii)(A)(2) of this 
     definition, a regimen of continuing treatment includes, for 
     example, a course of prescription medication (e.g., an 
     antibiotic) or therapy requiring special equipment to resolve 
     or alleviate the health condition (e.g., oxygen). A regimen 
     of continuing treatment that includes the taking of over-the-
     counter medications such as aspirin, antihistamines, or 
     salves; or bed-rest, drinking fluids, exercise, and other 
     similar activities that can be initiated without a visit to a 
     health care provider, is not, by itself, sufficient to 
     constitute a regimen of continuing treatment for purposes of 
     FMLA leave.
       (3) Conditions for which cosmetic treatments are 
     administered (such as most treatments for acne or plastic 
     surgery) are not ``serious health conditions'' unless 
     inpatient hospital care is required or unless complications 
     develop. Ordinarily, unless complications arise, the common 
     cold, the flu, ear aches, upset stomach, minor ulcers, 
     headaches other than migraine, routine dental or orthodontia 
     problems, periodontal disease, etc., are examples of 
     conditions that do not meet the definition of a serious 
     health condition and do not qualify for FMLA leave. 
     Restorative dental or plastic surgery after an injury or 
     removal of cancerous growths are serious health conditions 
     provided all the other conditions of this regulation are met. 
     Mental illness resulting from stress or allergies may be 
     serious health conditions, but only if all the conditions of 
     this section are met.
       (4) Substance abuse may be a serious health condition if 
     the conditions of this section are met. However, FMLA leave 
     may only be taken for treatment for substance abuse by a 
     health care provider or by a provider of health care services 
     on referral by a health care provider. On the other hand, 
     absence because of the employee's use of the substance, 
     rather than for treatment, does not qualify for FMLA leave.
       (5) Absences attributable to incapacity under paragraphs 
     (1)(ii) (B) or (C) of this definition qualify for FMLA leave 
     even though the employee or the immediate family member does 
     not receive treatment from a health care provider during the 
     absence, and even if the absence does not last more than 
     three days. For example, an employee with asthma may be 
     unable to report for work due to the onset of an asthma 
     attack or because the 

[[Page S 17651]]
     employee's health care provider has advised the employee to stay home 
     when the pollen count exceeds a certain level. An employee 
     who is pregnant may be unable to report to work because of 
     severe morning sickness.
       Son or daughter means a biological, adopted, or foster 
     child, a stepchild, a legal ward, or a child of a person 
     standing in loco parentis, who is under 18 years of age or 18 
     years of age or older and incapable of self-care because of a 
     mental or physical disability.
       Spouse means a husband or wife as defined or recognized 
     under State law for purposes of marriage in the State where 
     the employee resides, including common law marriage in States 
     where it is recognized.
       State means any State of the United States or the District 
     of Columbia or any Territory or possession of the United 
     States.
       Teacher (or employee employed in an instructional capacity, 
     or instructional employee) means an employee employed 
     principally in an instructional capacity by an educational 
     agency or school whose principal function is to teach and 
     instruct students in a class, a small group, or an individual 
     setting, and includes athletic coaches, driving instructors, 
     and special education assistants such as signers for the 
     hearing impaired. The term does not include teacher 
     assistants or aides who do not have as their principal 
     function actual teaching or instructing, nor auxiliary 
     personnel such as counselors, psychologists, curriculum 
     specialists, cafeteria workers, maintenance workers, bus 
     drivers, or other primarily noninstructional employees.

                  Appendix A to Part 825--[Reserved.]

   Appendix B to Part 825--Certification of Physician or Practitioner


Certification of Health Care Provider (Family and Medical Leave Act of 
  1993 as Made Applicable by the Congressional Accountability Act of 
                                 1995)

       1. Employee's Name:
       2. Patient's Name (if different from employee):
       3. The attached sheet describes what is meant by a 
     ``serious health condition'' under the Family and Medical 
     Leave Act as made applicable by the Congressional 
     Accountability Act. Does the patient's condition 1 
     qualify under any of the categories described? If so, please 
     check the applicable category.
     \1\ Here and elsewhere on this form, the information sought 
     relates only to the condition for which the employee is 
     taking FMLA leave.
---------------------------------------------------------------------------
       (1)____ (2) ____ (3) ____ (4) ____ (5) ____ (6) ____, or 
     None of the above ____
       4. Describe the medical facts which support your 
     certification, including a brief statement as to how the 
     medical facts meet the criteria of one of these categories:
       5.a. State the approximate date the condition commenced, 
     and the probable duration of the condition (and also the 
     probable duration of the patient's present incapacity 2 
     if different):
     \2\ ``Incapacity,'' for purposes of FMLA as made applicable 
     by the CAA, is defined to mean inability to work, attend 
     school or perform other regular daily activities due to the 
     serious health condition, treatment therefore, or recovery 
     therefrom.
---------------------------------------------------------------------------
       b. Will it be necessary for the employee to take work only 
     intermittently or to work on a less than full schedule as a 
     result of the condition (including for treatment described in 
     Item 6 below)? ________
       c. If the condition is a chronic condition (condition #4) 
     or pregnancy, state whether the patient is presently 
     incapacitated 2 and the likely duration and frequency of 
     episodes of incapacity: 2
       6.a. If additional treatments will be required for the 
     condition, provide an estimate of the probable number of such 
     treatments:
       If the patient will be absent from work or other daily 
     activities because of treatment on an intermittent or part-
     time basis, also provide an estimate of the probable number 
     and interval between such treatments, actual or estimated 
     dates of treatment if known, and period required for recovery 
     if any:
       b. If any of these treatments will be provided by another 
     provider of health services (e.g., physical therapist), 
     please state the nature of the treatments:
       c. If a regimen of continuing treatment by the patient is 
     required under your supervision, provide a general 
     description of such regimen (e.g., prescription drugs, 
     physical therapy requiring special equipment):
       7.a. If medical leave is required for the employee's 
     absence from work because of the employee's own condition 
     (including absences due to pregnancy or a chronic condition), 
     is the employee unable to perform work of any kind? ________
       b. If able to perform some work, is the employee unable to 
     perform any one or more of the essential functions of the 
     employee's job (the employee or the employer should supply 
     you with information about the essential job functions)? 
     ________ If yes, please list the essential functions the 
     employee is unable to perform:
       c. If neither a. nor b. applies, is it necessary for the 
     employee to be absent from work for treatment? __________
       8.a. If leave is required to care for a family member of 
     the employee with a serious health condition, does the 
     patient require assistance for basic medical or personal 
     needs or safety, or for transportation? __________
       b. If no, would the employee's presence to provide 
     psychological comfort be beneficial to the patient or assist 
     in the patient's recovery? __________
       c. If the patient will need care only intermittently or on 
     a part-time basis, please indicate the probable duration of 
     this need:________________

          (Signature of Health Care Provider)________________

                   (Type of Practice)________________

                       (Address)________________

                           (Telephone number)

       To be completed by the employee needing family leave to 
     care for a family member:
       State the care you will provide and an estimate of the 
     period during which care will be provided, including a 
     schedule if leave is to be taken intermittently or if it will 
     be necessary for you to work less than a full 
     schedule:________________

                  (Employee signature)________________

                                 (Date)

       A ``Serious Health Condition'' means an illness, injury, 
     impairment, or physical or mental condition that involves one 
     of the following:
       1. Hospital care.--Inpatient care (i.e., an overnight stay) 
     in a hospital, hospice, or residential medical care facility, 
     including any period of incapacity \2\ or subsequent 
     treatment in connection with or consequent to such inpatient 
     care.
       2. Absence plus treatment.--(a) A period of incapacity \2\ 
     of more than three consecutive calendar days (including any 
     subsequent treatment or period of incapacity \2\ relating to 
     the same condition), that also involves: (1) Treatment \3\ 
     two or more times by a health care provider, by a nurse or 
     physician's assistant under direct supervision of a health 
     care provider, or by a provider of health care services 
     (e.g., physical therapist) under orders of, or on referral 
     by, a health care provider; or (2) Treatment by a health care 
     provider on at least one occasion which results in a regimen 
     of continuing treatment \4\ under the supervision of the 
     health care provider.
     \3\ Treatment includes examinations to determine if a serious 
     health condition exists and evaluations of the condition. 
     Treatment does not include routine physical examinations, eye 
     examinations, or dental examinations.
     \4\ A regimen of continuing treatment includes, for example, 
     a course of prescription medication (e.g., an antibiotic) or 
     therapy requiring special equipment to resolve or alleviate 
     the health condition. A regimen of treatment does not include 
     the taking of over-the-counter medications such as aspirin, 
     antihistamines, or salves; or bed-rest, drinking fluids, 
     exercise, and other similar activities that can be initiated 
     without a visit to a health care provider.
---------------------------------------------------------------------------
       3. Pregnancy.--Any period of incapacity due to pregnancy, 
     or for prenatal care.
       4. Chronic conditions requiring treatments.--A chronic 
     condition which: (1) Requires periodic visits for treatment 
     by a health care provider, or by a nurse or physician's 
     assistant under direct supervision of a health care provider; 
     (2) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and (3) 
     May cause episodic rather than a continuing period of 
     incapacity \2\ (e.g., asthma, diabetes, epilepsy, etc.)
       5. Permanent/long-term conditions requiring supervision.--A 
     period of incapacity \2\ which is permanent or long-term due 
     to a condition for which treatment may not be effective. The 
     employee or family member must be under the continuing 
     supervision of, but need not be receiving active treatment 
     by, a health care provider. Examples include Alzheimer's, a 
     severe stroke, or the terminal stages of a disease.
       6. Multiple treatments (non-chronic conditions).--Any 
     period of absence to receive multiple treatments (including 
     any period of recovery therefrom) by a health care provider 
     or by a provider of health care services under orders of, or 
     on referral by, a health care provider, either for 
     restorative surgery after an accident or other injury, or for 
     a condition that would likely result in a period of 
     incapacity \2\ of more than three consecutive calendar days 
     in the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).

                   Appendix C to Part 825--[Reserved]

Appendix D to Part 825--Prototype Notice: Employing Office Response to 
             Employee Request for Family and Medical Leave


  Employing Office Response to Employee Request for Family or Medical 
                                 Leave

   (Optional use form--see Sec. 825.301(c) of the regulations of the 
                         Office of Compliance)

   (Family and Medical Leave Act of 1993, as made applicable by the 
               Congressional Accountability Act of 1995)

     (Date)
     To: ________________

                           (Employee's name)

     From: ________________

         (Name of appropriate employing office representative)

     Subject: Request for family/medical leave
       On __________ (date), you notified us of your need to take 
     family/medical leave due to:
       {time}  the birth of your child, or the placement of a 
     child with you for adoption or foster care; or
       {time}  a serious health condition that makes you unable to 
     perform the essential functions of your job; or
       {time}  a serious health condition affecting your {time}  
     spouse, {time}  child, {time}  parent, for which you are 
     needed to provide care.
       You notified us that you need this leave beginning on 
     __________ (date) and that you 

[[Page S 17652]]
     expect leave to continue until on or about __________ (date).
       Except as explained below, you have a right under the FMLA, 
     as made applicable by the CAA, for up to 12 weeks of unpaid 
     leave in a 12-month period for the reasons listed above. 
     Also, your health benefits must be maintained during any 
     period of unpaid leave under the same conditions as if you 
     continued to work, and you must be reinstated to the same or 
     an equivalent job with the same pay, benefits, and terms and 
     conditions of employment on your return from leave. If you do 
     not return to work following FMLA leave for a reason other 
     than: (1) the continuation, recurrence, or onset of a serious 
     health condition which would entitle you to FMLA leave; or 
     (2) other circumstances beyond your control, you may be 
     required to reimburse us for our share of health insurance 
     premiums paid on your behalf during your FMLA leave.
       This is to inform you that: (check appropriate boxes; 
     explain where indicated)
       1. You are {time}  eligible {time}  not eligible for leave 
     under the FMLA as made applicable by the CAA.
       2. The requested leave {time}  will {time}  will not be 
     counted against your annual FMLA leave entitlement.
       3. You {time}  will {time}  will not be required to furnish 
     medical certification of a serious health condition. If 
     required, you must furnish certification by __________ 
     (insert date) (must be at least 15 days after you are 
     notified of this requirement) or we may delay the 
     commencement of your leave until the certification is 
     submitted.
       4. You may elect to substitute accrued paid leave for 
     unpaid FMLA leave. We {time}  will {time}  will not require 
     that you substitute accrued paid leave for unpaid FMLA leave. 
     If paid leave will be used the following conditions will 
     apply: (Explain)
       5(a). If you normally pay a portion of the premiums for 
     your health insurance, these payments will continue during 
     the period of FMLA leave. Arrangements for payment have been 
     discussed with you and it is agreed that you will make 
     premium payments as follows: (Set forth dates, e.g., the 10th 
     of each month, or pay periods, etc. that specifically cover 
     the agreement with the employee.)
       (b). You have a minimum 30-day (or, indicate longer period, 
     if applicable) grace period in which to make premium 
     payments. If payment is not made timely, your group health 
     insurance may be cancelled, provided we notify you in writing 
     at least 15 days before the date that your health coverage 
     will lapse, or, at our option, we may pay your share of the 
     premiums during FMLA leave, and recover these payments from 
     you upon your return to work. We {time}  will {time}  will 
     not pay your share of health insurance premiums while you are 
     on leave.
       (c). We {time}  will {time}  will not do the same with 
     other benefits (e.g., life insurance, disability insurance, 
     etc.) while you are on FMLA leave. If we do pay your premiums 
     for other benefits, when you return from leave you {time}  
     will {time}  will not be expected to reimburse us for the 
     payments made on your behalf.
       6. You {time}  will {time}  will not be required to present 
     a fitness-for-duty certificate prior to being restored to 
     employment. If such certification is required but not 
     received, your return to work may be delayed until the 
     certification is provided.
       7(a). You {time}  are {time}  are not a ``key employee'' as 
     described in Sec. 825.218 of the Office of Compliance's FMLA 
     regulations. If you are a ``key employee,'' restoration to 
     employment may be denied following FMLA leave on the grounds 
     that such restoration will cause substantial and grievous 
     economic injury to us.
       (b). We {time}  have {time}  have not determined that 
     restoring you to employment at the conclusion of FMLA leave 
     will cause substantial and grievous economic harm to us. 
     (Explain (a) and/or (b) below. See Sec. 825.219 of the Office 
     of Compliance's FMLA regulations.)
       8. While on leave, you {time}  will {time}  will not be 
     required to furnish us with periodic reports every ______ 
     (indicate interval of periodic reports, as appropriate for 
     the particular leave situation) of your status and intent to 
     return to work (see Sec. 825.309 of the Office of 
     Compliance's FMLA regulations). If the circumstances of your 
     leave change and you are able to return to work earlier than 
     the date indicated on the reverse side of this form, you 
     {time}  will {time}  will not be required to notify us at 
     least two work days prior to the date you intend to report 
     for work.
       9. You {time}  will {time}  will not be required to furnish 
     recertification relating to a serious health condition. 
     (Explain below, if necessary, including the interval between 
     certifications as prescribed in Sec. 825.308 of the Office of 
     Compliance's FMLA regulations.)

                  Appendix E to Part 825--[Reserved.]

                          Office of Compliance


 The congressional accountability act of 1995: extension of rights and 
protections under the worker adjustment and retraining notification act 
                                of 1988

                     Notice of proposed rulemaking

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed regulations to implement section 205 
     of the Congressional Accountability Act of 1995 (``CAA''), 
     P.L. 104-1, 2 U.S.C. Sec. 1315, to employees of the House of 
     Representatives, the Senate, and certain Congressional 
     instrumentalities listed below.
       The CAA applies the rights and protections of eleven labor 
     and employment statutes to covered employees within the 
     legislative branch. Section 205 provides that no employing 
     office (meeting the size thresholds for coverage as an 
     employer) shall be closed or a mass layoff ordered within the 
     meaning of section 3 of the Worker Adjustment and Retraining 
     Notification Act, 29 U.S.C Sec. 2102 (``WARN''), until the 
     end of a 60-day period after the employing office serves 
     written notice of such prospective closing or layoff to 
     representatives of covered employees or, if there are no 
     representatives, to covered employees. 2 U.S.C. Sec. 1315(a). 
     The provisions of section 205 are effective January 23, 1996, 
     one year after the enactment date of the CAA, for all 
     employing offices except the General Accounting Office and 
     the Library of Congress. Accordingly, this notice does not 
     include rules applicable to the General Accounting Office of 
     the Library of Congress.
       This notice proposes that substantially similar regulations 
     be adopted for the Senate, the House of Representatives, and 
     the seven Congressional instrumentalities; and their 
     employees. Accordingly:
        (1) Senate.--It is proposed that regulations as described 
     in this notice be included in the body of regulations that 
     shall apply to the Senate and employees of the Senate, and 
     this proposal regarding the Senate and its employees is 
     recommended by the Office of Compliance's Deputy Executive 
     Director for the Senate.
       (2) House of Representatives.--It is further proposed that 
     regulations as described in this notice be included in the 
     body of regulations that shall apply to the House of 
     Representatives and employees of the House of 
     Representatives, and this proposal regarding the House of 
     Representatives and its employees is recommended by the 
     Office of Compliance's Deputy Executive Director for the 
     House of Representatives.
       (3) Certain Congressional instrumentalities.--It is further 
     proposed that regulations as described in this notice be 
     included in the body of regulations that shall apply to the 
     Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment, and their employees; and this proposal regarding 
     these seven Congressional instrumentalities is recommended by 
     the Office of Compliance's Executive Director.
       Dates: Comments are due within 30 days after the date of 
     publication of this notice in the Congressional Record.
       Addresses: Submit written comments to the Chair of the 
     Board of Directors, Office of Compliance, Room LA 200, 
     Library of Congress, 110 Second Street, S.E., Washington, 
     D.C. 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 Building, 101 Independence Avenue, S.E., Washington, 
     D.C., 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, at (202) 
     224-2705.
       Supplementary information:
       Background and summary: The Congressional Accountability 
     Act of 1995 (``CAA''), P.L. 104-1, was enacted into law on 
     January 23, 1995. 2 U.S.C. Sec. Sec. 1301 et seq. In general, 
     the CAA applies the rights and protections of eleven federal 
     labor and employment statutes to covered employees and 
     employing offices within the legislative branch. Section 205 
     of the CAA provides that no employing office shall be closed 
     or a mass layoff ordered within the meaning of section 3 of 
     the Worker Adjustment Retraining and Notification Act of 
     1988, 29 U.S.C. Sec. 2102 (``WARN'') until the end of a 60-
     day period after the employing office serves written notice 
     of such prospective closing or layoff to representatives of 
     covered employees or, if there are no representatives, to 
     covered employees. 2 U.S.C. Sec. 1315(a). Section 225(f) of 
     the CAA provides that ``[e]xcept where inconsistent with 
     definitions and exemptions provided in this Act, the 
     definitions and exemptions of [WARN] shall apply under this 
     Act.'' 2 U.S.C. Sec. 1361(f). Sections 304(a) and 205(c) of 
     the CAA directs the Board of Directors of the Office of 
     Compliance established under the CAA to issue regulations 
     implementing the section. 2 U.S.C. Sec. Sec. 1384(a), 
     1315(c). Section 205(c) further states that such regulations 
     ``shall be the same as substantive regulations issued by the 
     Secretary of Labor to implement the statutory provisions 
     referred to in subsections (a) and (b) 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.'' 2 U.S.C. Sec. 1315(c).
       The Board has published in the Congressional Record for 
     comment an Advance Notice of Proposed Rulemaking. See 141 
     Cong. Rec. S14542 (daily ed., Sept. 28, 1995). After 
     consideration of the public comments relating to rulemaking 
     under section 205 of the 

[[Page S 17653]]
     CAA, the Board is publishing this proposed regulation.
       With the exception of technical and nomenclature changes, 
     the Board does not propose substantial departure from 
     otherwise applicable Secretary's regulations. See Secretary 
     of Labor's regulations at 20 C.F.R. Part 639; Final rule 
     published at 54 Federal Register 16042 (April 20, 1989).
       In developing these proposed regulations, a number of 
     issues have been identified and explored. The Board proposes 
     to resolve these issues as described below, and it 
     particularly invites comments on the following issues:
        1. Employer coverage.--WARN contains size thresholds for 
     coverage as an employer and specifies which workers are 
     counted in making coverage determinations. Section 225(f)(2) 
     of the CAA makes clear that the provisions of WARN 
     determining coverage based on size shall apply in determining 
     coverage of employing offices under the CAA. 2 U.S.C. 
     Sec. 1361(f)(2). Thus, the Secretary's regulations 
     implementing WARN's coverage requirements (20 C.F.R. 
     Sec. 639.3(a)) are included in these regulations.
       2. Notification of State dislocated worker assistance 
     programs and coordination with job placement and retraining 
     programs.--In contrast to section 3 of WARN, section 205 of 
     the CAA does not require an employing office to give notice 
     of the office closing or layoff to the ``State dislocated 
     worker unit'' or to the ``chief elected official of the unit 
     of local government'' within which such closing or layoff is 
     to occur. See 29 U.S.C. Sec. 2102(a)(2). Therefore, the 
     proposed regulations do not require notice to be given to 
     State and local entities and do not include the Secretary's 
     regulations regarding such notice.
       3. Exemption for strikes and lockouts.-- The proposed 
     regulations do not include the Secretary's regulations 
     regarding WARN's exemption for strikes and lockouts (20 
     C.F.R. Sec. 639.5). Strikes are prohibited in federal 
     employment. 18 U.S.C. Sec. 1918. Similarly, the Federal Labor 
     Relations Act, which applies to covered employees and 
     employing offices under section 220 of the CAA, prohibits 
     picketing that interferes with agency operations, as well as 
     slowdowns, stoppages and strikes under any circumstances. 5 
     U.S.C. Sec. 7116(b)(7). Therefore, these regulations are 
     inapplicable to legislative branch employees.
       4. ``Faltering company'' exemption.--Section 3(b) of WARN 
     sets forth three conditions under which the notification 
     period may be reduced to less than 60 days. Under the 
     ``faltering company'' exemption, an employer must be in the 
     process of seeking capital or business during the time that 
     the 60-day notice would have been required. This section is 
     inapplicable to employment within the legislative branch and 
     the Secretary's regulation implementing this section (20 
     C.F.R. Sec. 639.9(a)) is not included in the proposed 
     regulations. The ``unforeseen business circumstances'' and 
     ``natural disaster'' exceptions in sections 3(b)(2)(A) and 
     (B) of WARN, appear to be applicable and thus the Secretary's 
     regulations (29 C.F.R. Sec. 639.9(b) and (c)) have been 
     included in the proposed regulations, with appropriate 
     modifications.
       5. Extension of short-term layoff.--The Secretary's 
     regulations address the Notice requirement where an employer 
     extends short-term layoffs (6 months or less) beyond 6 months 
     due to business circumstances (including unforeseeable 
     changes in price or cost) not reasonably foreseeable at the 
     time the initial layoff is required. 20 C.F.R. Sec. 639.4(b). 
     There may be circumstances where an employing office may be 
     required to extend short-term layoffs due to unforeseen 
     events (such as unforeseen budget or funding reductions or 
     eliminations). Therefore, the Board includes this provision 
     (with appropriate modification as part of its proposed 
     regulations.
       6. Sale of business.--The Board includes the Secretary's 
     regulations regarding Notice in the case of a sale of all or 
     parts of a business (20 C.F.R. Sec. 639.4(c)).
       Recommended Method of Approval: The Board recommends that 
     (1) the version of the proposed regulations that shall apply 
     to the Senate and employees of the Senate be approved by the 
     Senate by resolution; (2) the version of the proposed 
     regulations that apply to the House of Representatives and 
     employees of the House of Representatives be approved by the 
     House of Representatives by resolution; and (3) the version 
     of the proposed regulations that shall apply to other covered 
     employees and employing offices be approved by the Congress 
     by concurrent resolution.
       Signed at Washington, D.C., on this 20th day of November, 
     1995.
                                                    Glen D. Nager,
                         Chair of the Board, Office of Compliance.

    Application of Rights and Protections of the Worker Adjustment 
                Retraining and Notification Act of 1988

Section
639.1 Purpose and scope.
639.2 What does WARN require?
639.3 Definitions.
639.4 Who must give notice?
639.5 When must notice be given?
639.6 Who must receive notice?
639.7 What must the notice contain?
639.8 How is the notice served?
639.9 When may notice be given less than 60 days in advance?
639.10 When may notice be extended?

     Sec. 639.1 Purpose and scope.

       (a) Purpose of WARN as applied by the CAA.--Section 205 of 
     the Congressional Accountability Act, P.L. 104-1 (``CAA''), 
     provides protection to covered employees and their families 
     by requiring employing offices to provide notification 60 
     calendar days in advance of office closings and mass layoffs 
     within the meaning of section 3 of the Worker Adjustment and 
     Retraining Notification Act of 1988, 29 U.S.C. Sec. 2102. 
     Advance notice provides workers and their families some 
     transition time to adjust to the prospective loss of 
     employment, to seek and obtain alternative jobs and, if 
     necessary, to enter skill training or retraining that will 
     allow these workers to successfully compete in the job 
     market. As used in these regulations, WARN shall refer to the 
     provisions of WARN applied to covered employing offices by 
     section 205 of the CAA.
       (b) Scope of these regulations.--These regulations 
     establish basic definitions and rules for giving notice, 
     implementing the provisions of WARN. The objective of these 
     regulations is to establish clear principles and broad 
     guidelines which can be applied in specific circumstances. 
     However, it is recognized that rulemaking cannot address the 
     multitude of employing office-specific situations in which 
     advance notice will be given.
       (c) Notice encouraged where not required.--An employing 
     office that is not required to comply with the notice 
     requirements of section 205 of the CAA is encouraged, to the 
     extent possible, to provide notice to its employees about a 
     proposal to close an office or permanently reduce its 
     workforce.
       (d) Notice in ambiguous situations.--It is civically 
     desirable and it would appear to be good business practice 
     for an employing office to provide advance notice to its 
     workers or unions when terminating a significant number of 
     employees. In practical terms, there are some questions and 
     ambiguities of interpretation inherent in the application of 
     WARN that cannot be addressed in these regulations. It is 
     therefore prudent for employing offices to weigh the 
     desirability of advance notice against the possibility of 
     expensive and time-consuming litigation to resolve disputes 
     where notice has not been given. The Office encourages 
     employing offices to give notice in all circumstances.
       (e) WARN not to supersede other laws and contracts.--The 
     provisions of WARN do not supersede any otherwise applicable 
     laws or collective bargaining agreements that provide for 
     additional notice or additional rights and remedies. If such 
     law or agreement provides for a longer notice period, WARN 
     notice shall run concurrently with that additional notice 
     period. Collective bargaining agreements may be used to 
     clarify or amplify the terms and conditions of WARN, but may 
     not reduce WARN rights.

     Sec. 639.2 What does WARN require?

       WARN requires employing offices that are planning an office 
     closing or a mass layoff to give affected employees at least 
     60 days' notice of such an employment action. While the 60-
     day period is the minimum for advance notice, this provision 
     is not intended to discourage employing offices from 
     voluntarily providing longer periods of advance notice. Not 
     all office closings and layoffs are subject to WARN, and 
     certain employment thresholds must be reached before WARN 
     applies. WARN sets out specific exemptions, and provides for 
     a reduction in the notification period in particular 
     circumstances. Remedies authorized under section 205 of the 
     CAA may be assessed against employing offices that violate 
     WARN requirements.

     Sec. 639.3 Definitions.

       (a) Employing office.--(1) The term ``employing office'' 
     means any business enterprise that employs--
       (i) 100 or more employees, excluding part-time employees; 
     or
       (ii) employs 100 or more employees, including part-time 
     employees, who in the aggregate work at least 4,000 hours per 
     week, exclusive of overtime.

     Workers on temporary layoff or on leave who have a reasonable 
     expectation of recall are counted as employees. An employee 
     has a ``reasonable expectation of recall'' when he/she 
     understands, through notification or through common practice, 
     that his/her employment with the employer has been 
     temporarily interrupted and that he/she will be recalled to 
     the same or to a similar job.
       (2) Workers, other than part-time workers, who are exempt 
     from notice under section 4 of WARN, are nonetheless counted 
     as employees for purposes of determining coverage as an 
     employer.
       (3) An employing office may have one or more sites of 
     employment under common ownership or control.
       (b) Office closing.--The term ``office closing'' means the 
     permanent or temporary shutdown of a ``single site of 
     employment'', or one or more ``facilities or operating 
     units'' within a single site of employment, if the shutdown 
     results in an ``employment loss'' during any 30-day period at 
     the single site of employment for 50 or more employees, 
     excluding any part-time employees. An employment action that 
     results in the effective cessation of the work performed by a 
     unit, even if a few employees remain, is a shutdown. A 
     ``temporary shutdown'' triggers the notice requirement only 
     if there are a sufficient number of terminations, layoffs 
     exceeding 6 months, or reductions in hours of work as 
     specified under the definition of ``employment loss.''
       (c) Mass layoff.--(1) The term ``mass layoff'' means a 
     reduction in force which first, is not the result of an 
     office closing, and second, results in an employment loss at 
     the 

[[Page S 17654]]
     single site of employment during any 30-day period for:
       (i) At least 33 percent of the active employees, excluding 
     part-time employees, and
       (ii) At least 50 employees, excluding part-time employees.

     Where 500 or more employees (excluding part-time employees) 
     are affected, the 33% requirement does not apply, and notice 
     is required if the other criteria are met. Office closings 
     involve employment loss which results from the shutdown of 
     one or more distinct units within a single site or the entire 
     site. A mass layoff involves employment loss, regardless of 
     whether one or more units are shut down at the site.
       (2) Workers, other than part-time workers, who are exempt 
     from notice under section 4 of WARN are nonetheless counted 
     as employees for purposes of determining coverage as an 
     office closing or mass layoff. For example, if an employer 
     closes a temporary project on which 10 permanent and 40 
     temporary workers are employed, a covered office closing has 
     occurred although only 10 workers are entitled to notice.
       (d) Representative.--The term ``representative'' means an 
     exclusive representative of employees within the meaning of 5 
     U.S.C. Sec. Sec. 7101 et seq., as applied to covered 
     employees and employing offices by section 220 of the CAA, 2 
     U.S.C. Sec. 1351.
       (e) Affected employees.--The term ``affected employees'' 
     means employees who may reasonably be expected to experience 
     an employment loss as a consequence of a proposed plant 
     closing or mass layoff by their employer. This includes 
     individually identifiable employees who will likely lose 
     their jobs because of bumping rights or other factors, to the 
     extent that such individual workers reasonably can be 
     identified at the time notice is required to be given. The 
     term ``affected employees'' includes managerial and 
     supervisory employees. Consultant or contract employees who 
     have a separate employment relationship with another 
     employing office or employer and are paid by that other 
     employing office or employer, or who are self-employed, are 
     not ``affected employees'' of the business to which they are 
     assigned. In addition, for purposes of determining whether 
     coverage thresholds are met, either incumbent workers in jobs 
     being eliminated or, if known 60 days in advance, the actual 
     employees who suffer an employment loss may be counted.
       (f) Employment loss.--(1) The term ``employment loss'' 
     means (i) an employment termination, other than a discharge 
     for cause, voluntary departure, or retirement, (ii) a layoff 
     exceeding 6 months, or (iii) a reduction in hours of work of 
     individual employees of more than 50% during each month of 
     any 6-month period.
       (2) Where a termination or a layoff (see paragraphs 
     (f)(1)(i) and (ii) of this section) is involved, an 
     employment loss does not occur when an employee is reassigned 
     or transferred to employing office-sponsored programs, such 
     as retraining or job search activities, as long as the 
     reassignment does not constitute a constructive discharge or 
     other involuntary termination.
       (3) An employee is not considered to have experienced an 
     employment loss if the closing or layoff is the result of the 
     relocation or consolidation of part or all of the employing 
     office's operations and, prior to the closing or layoff--
       (i) The employing office offers to transfer the employee to 
     a different site of employment within a reasonable commuting 
     distance with no more than a 6-month break in employment, or
       (ii) The employing office offers to transfer the employee 
     to any other site of employment regardless of distance with 
     no more than a 6-month break in employment, and the employee 
     accepts within 30 days of the offer or of the closing or 
     layoff, whichever is later.
       (4) A ``relocation or consolidation'' of part or all of an 
     employing office's operations, for purposes of paragraph 
     Sec. 639.3(f)(3), means that some definable operations are 
     transferred to a different site of employment and that 
     transfer results in an office closing or mass layoff.
       (g) Part-time employee.--The term ``part-time'' employee 
     means an employee who is employed for an average of fewer 
     than 20 hours per week or who has been employed for fewer 
     than 6 of the 12 months preceding the date on which notice is 
     required, including workers who work full-time. This term may 
     include workers who would traditionally be understood as 
     ``seasonal'' employees. The period to be used for calculating 
     whether a worker has worked ``an average of fewer than 20 
     hours per week'' is the shorter of the actual time the worker 
     has been employed or the most recent 90 days.
       (h) Single site of employment.--(1) A single site of 
     employment can refer to either a single location or a group 
     of contiguous locations. Separate facilities across the 
     street from one another may be considered a single site of 
     employment.
       (2) There may be several single sites of employment within 
     a single building, such as an office building, if separate 
     employing offices conduct activities within such a building. 
     For example, an office building housing 50 different 
     employing offices will contain 50 single sites of employment. 
     The offices of each employing office will be its single site 
     of employment.
       (3) Separate buildings or areas which are not directly 
     connected or in immediate proximity may be considered a 
     single site of employment if they are in reasonable 
     geographic proximity, used for the same purpose, and share 
     the same staff and equipment.
       (4) Non-contiguous sites in the same geographic area which 
     do not share the same staff or operational purpose should not 
     be considered a single site.
       (5) Contiguous buildings operated by the same employing 
     office which have separate management and have separate 
     workforces are considered separate single sites of 
     employment.
       (6) For workers whose primary duties require travel from 
     point to point, who are outstationed, or whose primary duties 
     involve work outside any of the employing office's regular 
     employment sites (e.g., railroad workers, bus drivers, 
     salespersons), the single site of employment to which they 
     are assigned as their home base, from which their work is 
     assigned, or to which they report will be the single site in 
     which they are covered for WARN purposes.
       (7) Foreign sites of employment are not covered under WARN. 
     U.S. workers at such sites are counted to determine whether 
     an employing office is covered as an employer under 
     Sec. 639.3(a).
       (8) The term ``single site of employment'' may also apply 
     to truly unusual organizational situations where the above 
     criteria do not reasonably apply. The application of this 
     definition with the intent to evade the purpose of WARN to 
     provide notice is not acceptable.
       (i) Facility or operating unit.--The term ``facility'' 
     refers to a building or buildings. The term ``operating 
     unit'' refers to an organizationally or operationally 
     distinct product, operation, or specific work function within 
     or across facilities at the single site.

     Sec. 639.4 Who must give notice?

       Section 205(a)(1) of the CAA states that ``[n]o employing 
     office shall be closed or a mass layoff ordered within the 
     meaning of section 3 of [WARN] until the end of a 60-day 
     period after the employer serves written notice of such 
     prospective closing or layoff * * *.'' Therefore, an 
     employing office that is anticipating carrying out an office 
     closing or mass layoff is required to give notice to affected 
     employees or their representative(s). (See definitions in 
     Sec. 639.3 of this part.).
       (a) It is the responsibility of the employing office to 
     decide the most appropriate person within the employing 
     office's organization to prepare and deliver the notice to 
     affected employees or their representative(s). In most 
     instances, this may be the local site office manager, the 
     local personnel director or a labor relations officer.
       (b) An employing office that has previously announced and 
     carried out a short-term layoff (6 months or less) which is 
     being extended beyond 6 months due to business circumstances 
     not reasonably foreseeable at the time of the initial layoff 
     is required to give notice when it becomes reasonably 
     foreseeable that the extension is required. A layoff 
     extending beyond 6 months from the date the layoff commenced 
     for any other reason shall be treated as an employment loss 
     from the date of its commencement.
       (c) In the case of the sale of part or all of a business, 
     section 2(b)(1) of WARN, as applied by the CAA, defines who 
     the ``employer'' is. The seller is responsible for providing 
     notice of any plant closing or mass layoff which takes place 
     up to and including the effective date (time) of the sale, 
     and the buyer is responsible for providing notice of any 
     office closing or mass layoff that takes place thereafter. 
     Affected employees are always entitled to notice; at all 
     times the employer is responsible for providing notice.
       (1) If the seller is made aware of any definite plans on 
     the part of the buyer to carry out an office closing or mass 
     layoff within 60 days of purchase, the seller may give notice 
     to affected employees as an agent of the buyer, if so 
     empowered. If the seller does not give notice, the buyer is, 
     nevertheless, responsible to give notice. If the seller gives 
     notice as the buyer's agent, the responsibility for notice 
     still remains with the buyer.
       (2) It may be prudent for the buyer and seller to determine 
     the impacts of the sale on workers, and to arrange between 
     them for advance notice to be given to affected employees or 
     their representative(s), if a mass layoff or office closing 
     is planned.

     Sec. 639.5 When must notice be given?

        (a) General rule.--(1) With certain exceptions discussed 
     in paragraphs (b), (c) and (d) of this section and in 
     Sec. 639.9 of this part, notice must be given at least 60 
     calendar days prior to any planned office closing or mass 
     layoff, as defined in these regulations. When all employees 
     are not terminated on the same date, the date of the first 
     individual termination within the statutory 30-day or 90-day 
     period triggers the 60-day notice requirement. A worker's 
     last day of employment is considered the date of that 
     worker's layoff. The first and each subsequent group of 
     terminees are entitled to a full 60 days' notice. In order 
     for an employer to decide whether issuing notice is required, 
     the employer should--
        (i) Look ahead 30 days and behind 30 days to determine 
     whether employment actions both taken and planned will, in 
     the aggregate for any 30-day period, reach the minimum 
     numbers for an office closing or a mass layoff and thus 
     trigger the notice requirement; and
        (ii) Look ahead 90 days and behind 90 days to determine 
     whether employment actions 

[[Page S 17655]]
     both taken and planned each of which separately is not of sufficient 
     size to trigger WARN coverage will, in the aggregate for any 
     90-day period, reach the minimum numbers for an office 
     closings or a mass layoff and thus trigger the notice 
     requirement. An employing office is not, however, required 
     under section 3(d) to give notice if the employing office 
     demonstrates that the separate employment losses are the 
     result of separate and distinct actions and causes, and are 
     not an attempt to evade the requirements of WARN.
        (2) The point in time at which the number of employees is 
     to be measured for the purpose of determining coverage is the 
     date the first notice is required to be given. If this 
     ``snapshot'' of the number of employees employed on that date 
     is clearly unrepresentative of the ordinary or average 
     employment level, then a more representative number can be 
     used to determine coverage. Examples of unrepresentative 
     employment levels include cases when the level is near the 
     peak or trough of an employment cycle or when large upward or 
     downward shifts in the number of employees occur around the 
     time notice is to be given. A more representative number may 
     be an average number of employees over a recent period of 
     time or the number of employees on an alternative date which 
     is more representative of normal employment levels. 
     Alternative methods cannot be used to evade the purpose of 
     WARN, and should only be used in unusual circumstances.
        (b) Transfers.--(1) Notice is not required in certain 
     cases involving transfers, as described under the definition 
     of ``employment loss'' at Sec. 639.3(f) of this part.
        (2) An offer of reassignment to a different site of 
     employment should not be deemed to be a ``transfer'' if the 
     new job constitutes a constructive discharge.
        (3) The meaning of the term ``reasonable commuting 
     distance'' will vary with local conditions. In determining 
     what is a ``reasonable commuting distance,'' consideration 
     should be given to the following factors: geographic 
     accessibility of the place of work, the quality of the roads, 
     customarily available transportation, and the usual travel 
     time.
        (4) In cases where the transfer is beyond reasonable 
     commuting distance, the employing office may become liable 
     for failure to give notice if an offer to transfer is not 
     accepted within 30 days of the offer or of the closing or 
     layoff (whichever is later). Depending upon when the offer of 
     transfer was made by the employing office, the normal 60-day 
     notice period may have expired and the office closing or mass 
     layoff may have occurred. An employing office is, therefore, 
     well advised to provide 60-day advance notice as part of the 
     transfer offer.
        (c) Temporary employment.--(1) No notice is required if 
     the closing is of a temporary facility, or if the closing or 
     layoff is the result of the completion of a particular 
     project or undertaking, and the affected employees were hired 
     with the understanding that their employment was limited to 
     the duration of the facility or the project or undertaking.
        (2) Employees must clearly understand at the time of hire 
     that their employment is temporary. When such understandings 
     exist will be determined by reference to employment 
     contracts, collective bargaining agreements, or employment 
     practices of an industry or a locality, but the burden of 
     proof will lie with the employing office to show that the 
     temporary nature of the project or facility was clearly 
     communicated should questions arise regarding the temporary 
     employment understandings.

     Sec. 639.6 Who must receive notice?

        Section 3(a) of WARN provides for notice to each 
     representative of the affected employees as of the time 
     notice is required to be given or, if there is no such 
     representative at that time, to each affected employee.
        (a) Representative(s) of affected employees.--Written 
     notice is to be served upon the chief elected officer of the 
     exclusive representative(s) or bargaining agent(s) of 
     affected employees at the time of the notice. If this person 
     is not the same as the officer of the local union(s) 
     representing affected employees, it is recommended that a 
     copy also be given to the local union official(s).
        (b) Affected employees.--Notice is required to be given to 
     employees who may reasonably be expected to experience an 
     employment loss. This includes employees who will likely lose 
     their jobs because of bumping rights or other factors, to the 
     extent that such workers can be identified at the time notice 
     is required to be given. If, at the time notice is required 
     to be given, the employing office cannot identify the 
     employee who may reasonably be expected to experience an 
     employment loss due to the elimination of a particular 
     position, the employing office must provide notice to the 
     incumbent in that position. While part-time employees are not 
     counted in determining whether office closing or mass layoff 
     thresholds are reached, such workers are due notice.

     Sec. 639.7 What must the notice contain?

       (a) Notice must be specific.--(1) All notice must be 
     specific.
       (2) Where voluntary notice has been given more than 60 days 
     in advance, but does not contain all of the required elements 
     set out in this section, the employer must ensure that all of 
     the information required by this section is provided in 
     writing to the parties listed in Sec. 639.6 at least 60 days 
     in advance of a covered employment action.
       (3) Notice may be given conditional upon the occurrence or 
     nonoccurrence of an event, such as the renewal of a major 
     contract, only when the event is definite and the 
     consequences of its occurrence or nonoccurrence will 
     necessarily, in the normal course of business, lead to a 
     covered office closing or mass layoff less than 60 days after 
     the event. The notice must contain each of the elements set 
     out in this section.
       (4) The information provided in the notice shall be based 
     on the best information available to the employing office at 
     the time the notice is served. It is not the intent of the 
     regulations that errors in the information provided in a 
     notice that occur because events subsequently change or that 
     are minor, inadvertent errors are to be the basis for finding 
     a violation of WARN.
       (b) As used in this section, the term ``date'' refers to a 
     specific date or to a 14-day period during which a separation 
     or separations are expected to occur. If separations are 
     planned according to a schedule, the schedule should indicate 
     the specific dates on which or the beginning date of each 14-
     day period during which any separations are expected to 
     occur. Where a 14-day period is used, notice must be given at 
     least 60 days in advance of the first day of the period.
       (c) Notice to each representative of affected employees is 
     to contain:
       (1) The name and address of the employment site where the 
     office closing or mass layoff will occur, and the name and 
     telephone number of a company official to contact for further 
     information;
       (2) A statement as to whether the planned action is 
     expected to be permanent or temporary and, if the entire 
     office is to be closed, a statement to that effect;
       (3) The expected date of the first separation and the 
     anticipated schedule for making separations;
       (4) The job titles of positions to be affected and the 
     names of the workers currently holding affected jobs.
       The notice may include additional information useful to the 
     employees such as information on available dislocated worker 
     assistance, and, if the planned action is expected to be 
     temporary, the estimated duration, if known.
       (d) Notice to each affected employee who does not have a 
     representative is to be written in language understandable to 
     the employees and is to contain:
       (1) A statement as to whether the planned action is 
     expected to be permanent or temporary and, if the entire 
     office is to be closed, a statement to that effect;
       (2) The expected date when the office closing or mass 
     layoff will commence and the expected date when the 
     individual employee will be separated;
       (3) An indication whether or not bumping rights exist;
       (4) The name and telephone number of a company official to 
     contact for further information.
       The notice may include additional information useful to the 
     employees such as information on available dislocated worker 
     assistance, and, if the planned action is expected to be 
     temporary, the estimated duration, if known.

     Sec. 639.8 How is the notice served?

       Any reasonable method of delivery to the parties listed 
     under Sec. 639.6 of this part which is designed to ensure 
     receipt of notice of at least 60 days before separation is 
     acceptable (e.g., first class mail, personal delivery with 
     optional signed receipt). In the case of notification 
     directly to affected employees, insertion of notice into pay 
     envelopes is another viable option. A ticketed notice, i.e., 
     preprinted notice regularly included in each employee's pay 
     check or pay envelope, does not meet the requirements of 
     WARN.

     Sec. 639.9 When may notice be given less than 60 days in 
       advance?

       Section 3(b) of WARN, applied by section 205 of the CAA, 
     sets forth two conditions under which the notification period 
     may be reduced to less than 60 days. The employing office 
     bears the burden of proof that conditions for the exception 
     have been met. If one of the exceptions is applicable, the 
     employing office must give as much notice as is practicable 
     to the union and non-represented employees and this may, in 
     some circumstances, be notice after the fact. The employing 
     office must, at the time notice actually is given, provide a 
     brief statement of the reason for reducing the notice period, 
     in addition to the other elements set out in Sec. 639.7.
       (a) The ``unforeseeable business circumstances'' exception 
     under section 3(b)(2)(A) of WARN, as applied under the CAA, 
     applies to office closings and mass layoffs caused by 
     circumstances that were not reasonably foreseeable at the 
     time that 60-day notice would have been required.
       (1) An important indicator of a circumstance that is not 
     reasonably foreseeable is that the circumstance is caused by 
     some sudden, dramatic, and unexpected action or condition 
     outside the employing office's control.
       (2) The test for determining when circumstances are not 
     reasonably foreseeable focuses on an employing office's 
     business judgment. The employing office must exercise such 
     reasonable business judgment as would a similarly situated 
     employing office in predicting the demands of its operations. 
     The employing office is not required, however, to accurately 
     predict general economic conditions that also may affect its 
     operations.
       (b) The ``natural disaster'' exception in section 
     3(b)(2)(B) of WARN applies to office 

[[Page S 17656]]
     closings and mass layoffs due to any form of a natural disaster.
       (1) Floods, earthquakes, droughts, storms, tidal waves or 
     tsunamis and similar effects of nature are natural disasters 
     under this provision.
       (2) To qualify for this exception, an employing office must 
     be able to demonstrate that its office closing or mass layoff 
     is a direct result of a natural disaster.
       (3) While a disaster may preclude full or any advance 
     notice, such notice as is practicable, containing as much of 
     the information required in Sec. 639.7 as is available in the 
     circumstances of the disaster still must be given, whether in 
     advance or after the fact of an employment loss caused by a 
     natural disaster.
       (4) Where an office closing or mass layoff occurs as an 
     indirect result of a natural disaster, the exception does not 
     apply but the ``unforeseeable business circumstance'' 
     exception described in paragraph (a) of this section may be 
     applicable.

     Sec. 639.10 When may notice be extended?

       Additional notice is required when the date or schedule of 
     dates of a planned office closing or mass layoff is extended 
     beyond the date or the ending date of any 14-day period 
     announced in the original notice as follows:
       (a) If the postponement is for less than 60 days, the 
     additional notice should be given as soon as possible to the 
     parties identified in Sec. 639.6 and should include reference 
     to the earlier notice, the date (or 14-day period) to which 
     the planned action is postponed, and the reasons for the 
     postponement. The notice should be given in a manner which 
     will provide the information to all affected employees.
       (b) If the postponement is for 60 days or more, the 
     additional notice should be treated as new notice subject to 
     the provisions of Sec. Sec. 639.5, 639.6, and 639.7 of this 
     part. Rolling notice, in the sense of routine periodic 
     notice, given whether or not an office closing or mass layoff 
     is impending, and with the intent to evade the purpose of the 
     Act rather than give specific notice as required by WARN, is 
     not acceptable.


                          office of compliance

       The Congressional Accountability Act of 1995: Extension of 
     Rights and Protections Under the Employee Polygraph 
     Protection Act of 1988

                     Notice of proposed rulemaking

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed regulations to implement Sections 204 
     (a) and (b) of the Congressional Accountability Act of 1995 
     (``CAA'') to employees of the House of Representatives, the 
     Senate, and certain Congressional instrumentalities listed 
     below.
       The CAA applies the rights and protections of eleven labor 
     and employment and statutes to covered employees within the 
     legislative branch. Section 204(a) provides that no employing 
     may require any covered employee (including a covered 
     employee who does not work in that employing office) to take 
     a lie detector test where such test would be prohibited if 
     required by an employer under paragraphs (1), (2) or (3) of 
     section 3 of the Employee Polygraph Protection Act of 1988 
     (``EPPA''), 29 U.S.C. Sec. 2002 (1), (2) or (3). 2 U.S.C. 
     Sec. 1314(a). Section 204(a) of the CAA also applies the 
     waiver provision of section 6(d) of the EPPA (29 U.S.C. 
     Sec. 2005(d)) to covered employees. Id. The provisions of 
     section 204 are effective January 23, 1996, one year after 
     the enactment date of the CAA, for all employing offices 
     except the General Accounting Office and the Library of 
     Congress. 2 U.S.C. Sec. 1314(d). Accordingly, this notice 
     does not include rules applicable to the General Accounting 
     Office or the Library of Congress.
       The purpose of these regulations is to implement section 
     204 of the CAA, which provides protection for most covered 
     employees from lie detector testing, either pre-employment or 
     during the course of employment, with certain limited 
     exceptions. This notice proposes that substantially similar 
     regulations be adopted for the Senate, the House of 
     Representatives, and the seven Congressional 
     instrumentalities; and their employees. Accordingly:
       (1) Senate. It is proposed that regulations as described in 
     this notice be included in the body of regulations that shall 
     apply to the Senate and employees of the Senate, and this 
     proposal regarding the Senate and its employees is 
     recommended by the Office of Compliance's Deputy Executive 
     Director for the Senate.
       (2) House of Representatives. It is further proposed that 
     regulations as described in this notice be included in the 
     body of regulations that shall apply to the House of 
     Representatives and employees of the House of 
     Representatives, and this proposal regarding the House of 
     Representatives and its employees is recommended by the 
     Office of Compliance's Deputy Executive Director for the 
     House of Representatives.
       (3) Certain Congressional instrumentalities. It is further 
     proposed that regulations as described in this notice be 
     included in the body of regulations that shall apply to the 
     Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment, and their employees; and this proposal regarding 
     these seven Congressional instrumentalities is recommended by 
     the Office of Compliance's Executive Director.
       Dates: Comments are due within 30 days after the date of 
     publication of this notice in the Congressional Record.
       Addresses: Submit written comments to the Chair of the 
     Board of Directors, Office of Compliance, Room LA 200, 
     Library of Congress, 110 Second Street, S.E., Washington, 
     D.C. 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 Building, 101 Independence Avenue, S.E., Washington, 
     D.C., 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, Services Department, Office of 
     the Sergeant at Arms and Doorkeeper of the Senate, at (202) 
     244-2705.
       Supplementary information:

                         Background and summary

       The Congressional Accountability Act of 1995 (``CAA''), 
     P.L. 104-1, 109 Stat. 3, was enacted on January 23, 1995. 2 
     U.S.C. Sec. Sec. 1301-1438. In general, the CAA applies the 
     rights and protections of eleven federal labor and employment 
     and public access statutes to covered employees and employing 
     offices within the legislative branch. Section 204(a) of the 
     CAA provides that no employing office may require any covered 
     employee (including a covered employee who does not work in 
     that employing office) to take a lie detector test where such 
     test would be prohibited if required by an employer under 
     paragraphs (1), (2) or (3) of section 3 of the Employee 
     Polygraph Protection Act of 1988, 29 U.S.C. Sec. 2002 (1), 
     (2) or (3) (``EPPA''). 2 U.S.C. Sec. 1314(a). Section 204(a) 
     of the EPPA also applies the waiver provisions of section 
     6(d) of the EPPA (29 U.S.C. Sec. 2005(d)) to covered 
     employees. Id. Section 225(f) of the CAA provides that, 
     ``[e]xcept where inconsistent with definitions and exemptions 
     provided in this Act, the definitions and exemptions of the 
     [EPPA] shall apply under this Act.'' 2 U.S.C. 
     Sec. 1361(f)(1). Section 204(c) of the CAA requires the Board 
     of Directors of the Office of Compliance established under 
     the CAA to issue regulations implementing the section. 2 
     U.S.C. Sec. 1314(c). Section 204(c) further states that such 
     regulations ``shall be the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsections (a) and (b) 
     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.'' Id.
       The regulations in this Part are divided into three 
     subparts. Subpart A contains the provisions generally 
     applicable to covered employing offices, including the 
     requirements relating to the prohibitions on lie detector 
     use. Subpart B sets forth rules regarding the statutory 
     exemptions from application of the rights and protections of 
     the EPPA. Subpart C sets forth the restrictions on lie 
     detector usage under such exemptions. Subpart D sets forth 
     the rules on recordkeeping and the disclosure of polygraph 
     test information.
       In preparing the proposed regulations, the Board has 
     considered the comments submitted in response to the Board's 
     general Advance Notice of Proposed Rulemaking published at 
     141 Cong. Rec. S14542 (daily ed. Sept. 28, 1995), regarding 
     regulations that the Board should issue in this area. In 
     developing these proposed Regulations, a number of issues 
     have been identified and explored. The Board proposes to 
     resolve these issues as described below, and it particularly 
     invites comments on the following issues:
       (1) Notice posting and recordkeeping requirements. The CAA 
     incorporates only the prohibitions on the use of lie detector 
     tests contained in paragraphs (1), (2) and (3) of section 3 
     of the EPPA (prohibiting use of lie detectors subject to 
     limited exceptions), the waiver provisions of section 6(d) of 
     the EPPA, the civil action remedies provision of section 
     6(c)(1) of the EPPA, and the exemptions and definitions of 
     the EPPA (to the extent appropriate and not inconsistent with 
     exemptions and definitions in the CAA). See sections 204(a), 
     (b) and 225(f) of the CAA, 2 U.S.C. Sec. Sec. 1314(a), (b) 
     and 1361(f)(1). As a result, the provisions of sections 4 
     (directing the Secretary to prepare a notice of the 
     provisions of the EPPA and requiring employers to post such 
     notices), and 5 (authorizing the Secretary to issue 
     regulations, make investigations and require recordkeeping) 
     of the EPPA, 29 U.S.C. Sec. Sec. 2003, 2004, are not 
     incorporated into the CAA.
       On September 28, 1995, the Board issued an Advance Notice 
     of Proposed Rulemaking (``ANPR'') for publication in the 
     Congressional Record which invited comments regarding whether 
     and to what extent the Board should impose notice posting and 
     recordkeeping requirements on employing offices. After 
     considering the comments received, the Board has concluded 
     that the CAA does not incorporate the notice and 
     recordkeeping requirements of the EPPA and that, as a 
     consequence, such requirements 

[[Page S 17657]]
     may not be imposed at this time under the ``good cause'' provision 
     under section 204(c). See Notice of Proposed Rulemaking on 
     the Fair Labor Standards Act submitted concurrently with this 
     notice.
       The EPPA does contain specific recordkeeping requirements 
     which are included in sections of the EPPA applied by the 
     CAA. Section 8 of the EPPA, 29 U.S.C. Sec. 2007, which sets 
     forth the restrictions on the use of exemptions under the 
     EPPA, requires any employer conducting a polygraph test under 
     the ongoing investigations exemption (which is incorporated 
     into the CAA under section 225(f)(1)) to provide a signed a 
     statement to the examinee setting forth the factual basis for 
     testing the particular employees, a copy of which is retained 
     by the employer for at least 3 years. 29 U.S.C. 
     Sec. 2006(d)(4)(C). The portions of the Secretary's 
     regulations requiring such recordkeeping (29 C.F.R. 
     Sec. Sec. 801.12, 801.26, and 801.30) have been included in 
     the proposed regulations (Sections 1.12, 1.26, and 1.30), but 
     only to the extent that such regulatory provisions are 
     derived from section 8 of the EPPA.
       (2) Administrative enforcement. The CAA does not 
     incorporate Section 6(a) and (b) of the EPPA (providing for 
     civil penalties in an administrative enforcement scheme and 
     an administrative civil penalty remedy), 29 U.S.C. Sec. 2005. 
     A civil action in federal court or an administrative claim 
     before the Board (following counseling and mediation) is the 
     exclusive means by which covered employees may enforce their 
     EPPA rights and protections. See sections 401-416 of the CAA, 
     2 U.S.C. Sec. Sec. 1401-1416. Therefore, the proposed 
     regulations, consistent with the terms of Section 204 of the 
     CAA, exclude any reference to the Secretary's authority to 
     make investigations and initiate enforcement actions. 
     Consistent with section 204(c)(1) of the CAA, 2 U.S.C. 
     Sec. 1314(c)(1), the proposed regulations state that the 
     Board has authority to issue regulations under this section.
       (3) Exemptions. Section 225(f) of the CAA, 2 U.S.C. 
     Sec. 1361(f), provides that ``[e]xcept where inconsistent 
     with definitions and exemptions provided in this Act, the 
     definitions and exemptions in the laws made applicable by 
     this Act shall apply under this Act.''
       (a) Exemption for security services and drug security, drug 
     theft, or drug diversion investigations. Section 7(e) of the 
     EPPA, 29 U.S.C. Sec. 2006(e), provides an exemption 
     authorizing the use of polygraph tests, but no other types of 
     lie detector tests, by certain armored car, security alarm, 
     and security guard employers. Section 7(e) is limited by its 
     terms to private employers and the Board is not aware of any 
     employing office whose functions would meet the requirements 
     of the section 7(e) exemption. Therefore, the Board has not 
     included the Secretary's regulations implementing section 
     7(e) (29 C.F.R. Sec. 801.14) as part of its proposed 
     regulations.
       Section 7(f) of the EPPA allows certain employers 
     authorized to manufacture, distribute, or dispense controlled 
     substances to use polygraph tests, but no other types of lie 
     detector tests, under certain circumstances. There may be 
     entities within the legislative branch, such as the Office of 
     the Attending Physician, that might have employees whose 
     duties meet the drug security, drug theft or drug diversion 
     investigations exemption. Therefore, the Board's proposed 
     regulation (at section 1.13, infra) includes a modified 
     version of the Secretary's regulations under the drug 
     security, drug theft or drug diversion investigations 
     exemption (29 C.F.R. Sec. 801.13) as part of its proposed 
     regulations.
       (b) Exemption for national defense and security. Section 
     7(b) of the EPPA, 29 U.S.C. Sec. 2006(b), provides, among 
     other things, that nothing in the EPPA shall be construed to 
     prohibit the administration of any lie detector test by the 
     Federal Government, in the performance of any intelligence or 
     counterintelligence functions, to certain employees whose 
     duties involve access to information classified at the level 
     of top secret or designated as being within a special access 
     program under 4.2(a) of Executive Order 12356 (or a successor 
     Executive Order). There may be some employing offices within 
     the legislative branch, such as intelligence committees, that 
     have employees whose duties meet the exemption under section 
     7(b) of the EPPA. Therefore, the Board proposes a modified 
     version of the Secretary's regulations implementing such 
     exemption (29 C.F.R. Sec. 801.11) in its proposed 
     regulations.
       (c) FBI contractor exemption. Section 7(c) of the EPPA, 29 
     U.S.C. Sec. 2006(c), exempts Federal Bureau of Investigation 
     contractors from the requirements of the EPPA under certain 
     circumstances. This provision has no apparent applicability 
     to employing offices. Therefore, the Board does not include 
     the Secretary's regulations implementing this provision (29 
     C.F.R. Sec. 801.11(e)) as part of its proposed regulations.
       (d) Limited exemption for ongoing investigations. Section 
     7(d) of the EPPA, 29 U.S.C. Sec. 2006(d), provides a limited 
     exemption permitting polygraph tests, but no other types of 
     lie detector tests, in the context of employer investigations 
     involving economic loss or injury to the employer's business, 
     such as theft, embezzlement, misappropriation, or an act of 
     unlawful industrial espionage or sabotage. The Board believes 
     that there may be situations where an employing office may be 
     able to meet the exemption under section 7(d). Accordingly, 
     the Board includes the Secretary's regulations implementing 
     this exemption (29 C.F.R. Sec. 801.12) as part of its 
     proposed regulations.
       (e) Exemption for employees of the Capitol Police. By 
     Notice of Proposed Rulemaking published September 28, 1995 in 
     the Congressional Record, the Board recommended regulations 
     authorizing the Capitol Police to use lie detector tests in 
     certain circumstances. After both appropriate consideration 
     of comments received and further deliberation about the 
     matter, the Board has determined to incorporate such 
     regulations into these proposed regulations. However, this 
     proposed rule adds new section 1.4(e) to make clear it 
     that the regulation excluding the Capitol Police from 
     section 204 of the CAA with respect to its own employees 
     is not a total exemption of the Capitol Police from the 
     prohibitions on the employment-related use of lie detector 
     tests by the Capitol Police. Specifically, section 1.4(e) 
     provides that the Capitol Police may not require covered 
     employees other than Capitol Police employees to take a 
     lie detector test except in circumstances where the 
     Capitol Police administers a lie detector test during the 
     course of an ``ongoing investigation'' by the Capitol 
     Police. This additional language makes clear the Board's 
     intent to prohibit employing offices other than the 
     Capitol Police from administering lie detector tests on 
     their covered employees indirectly through the Capitol 
     Police.
       (4) Restrictions on use of exemptions. Section 204(a) 
     provides that no employing office may require a covered 
     employee to take a lie detector test where an employer would 
     be prohibited from requiring such a test under paragraphs 
     (1), (2) or (3) of section 3 of the EPPA, 29 U.S.C. 
     Sec. 2002(1), (2) or (3). Section 3 of the EPPA provides 
     that, except as provided in sections 7 and 8 of the EPPA (29 
     U.S.C. Sec. Sec. 2006 and 2007), it shall be unlawful for an 
     employer to require a lie detector test under paragraphs (1), 
     (2) or (3). Thus, the restrictions on the use of exemptions 
     under 29 U.S.C. Sec. 2007 are incorporated into section 204 
     and the Secretary's regulations implementing this section (29 
     C.F.R. Subpart C) are included in the Board's proposed 
     regulations.
       (5) Confidentiality provisions and notice to examinees. 
     Section 204 of the CAA incorporates the restrictions on 
     disclosure set forth in section 9 of the EPPA, 29 U.S.C. 
     Sec. 2008, since such restrictions are the conditions on 
     which polygraphs are allowed under the exemptions of section 
     7 of the EPPA. Accordingly, the Board includes in its 
     proposed regulations (with appropriate modifications) the 
     Secretary of Labor's regulations regarding restrictions on 
     disclosure of polygraph information (29 C.F.R. Sec. 801.35). 
     See section 225(f)(1) of the CAA (except where inconsistent 
     with definitions and exemptions provided in the CAA, the 
     definitions and exemptions under the laws made applicable by 
     the CAA apply under the CAA). For the same reasons, the Board 
     includes in its proposed regulations the requirement of the 
     Secretary's regulations that employing offices authorized to 
     conduct polygraph tests under the exemptions established in 
     these regulations to give written notice to the examinee of 
     the confidentiality and other requirements.
       (6) Technical and nomenclature changes. The proposed 
     regulations make technical and nomenclature changes, where 
     appropriate, to conform to the provisions of the CAA. See, 
     e.g., 29 C.F.R. Sec. Sec. 801.1 (Purpose and scope), 801.2 
     (Definitions), 801.3 (Coverage).
     Recommended method of approval
       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolution; and (3) the version of the proposed 
     regulations that shall apply to other covered employees and 
     employing offices be approved by the Congress by concurrent 
     resolution.
       Signed at Washington, D.C., on this 20th day of November, 
     1995

                                                Glen D. Nager,

                                                Chair of the Board
                                             Office of Compliance.

                            Comparison Table

       This table lists sections of the Secretary of Labor's 
     Regulations under the EPPA with the corresponding section (if 
     any) of the Office of Compliance's proposed Regulations under 
     Section 204 of the CAA.

                                                                        
                                               Office of Compliance     
 Secretary of Labor Regulations Code of   Regulations Section [Modified 
       Federal Regulation Section                As Appropriate]        
                                                                        
           Subpart A--General                                           
                                                                        
801.1 Purpose and scope................  1.1.                           
801.2 Definitions......................  1.2.                           
801.3 Coverage.........................  1.3.                           
801.4 Prohibitions on lie detector use.  1.4.                           
801.5 Effect on other laws and           1.5.                           
 agreements.                                                            
801.6 Notice of protection.............  1.6.                           
801.7 Authority of the Secretary.......  1.7.                           
801.8 Employment relationship..........  1.8.                           
                                                                        
         Subpart B--Exemptions                                          
                                                                        
801.10 Exclusion for public sector       1.10 [Exclusion for Capitol    
 employees.                               Police; public sector employee
                                          exclusion not adopted].       

[[Page S 17658]]
                                                                        
801.11 Exemption for national defense    1.11.                          
 and security.                                                          
801.12 Exemption for employers           1.12.                          
 conducting investigations of economic                                  
 loss or injury.                                                        
801.13 Exemption for employers           1.13.                          
 authorized to manufacture, distribute,                                 
 or dispense controlled substances.                                     
801.14 Exemption for employers           Not Adopted.                   
 providing security services.                                           
                                                                        
  Subpart C--Restrictions on Polygraph                                  
         Usage Under Exemptions                                         
                                                                        
801.20 Adverse employment action under   1.20.                          
 on-going investigation exemption.                                      
801.21 Adverse employment action under   1.21 [controlled substance     
 security service and controlled          exemption only].              
 substance exemptions.                                                  
801.22 Rights of examinee--general.....  1.22.                          
801.23 Rights of examinee--pretest       1.23.                          
 phase.                                                                 
801.24 Rights of examinee--actual test   1.24.                          
 phase.                                                                 
801.25 Rights of examinee--post-test     1.25.                          
 phase.                                                                 
801.26 Qualifications of and             1.26.                          
 requirements for examiners.                                            
                                                                        
Subpart D--Recordkeeping and Disclosure                                 
              Requirements                                              
                                                                        
801.30 Records to be preserved for 3     1.30.                          
 years.                                                                 
801.35 Disclosure of test information..  1.35.                          
                                                                        
         Subpart E--Enforcement                                         
                                                                        
801.40-801.75..........................  Not Adopted.                   
Appendix A to Part 801--Notice to        Appendix A--Notice to Examinee.
 Examinee.                                                              
                                                                        




    APPLICATION OF RIGHTS AND PROTECTIONS OF THE EMPLOYEE POLYGRAPH 
                         PROTECTION ACT OF 1988

                           SUBPART A--GENERAL

Section
1.1 Purpose and scope.
1.2 Definitions.
1.3 Coverage.
1.4 Prohibitions on lie detector use.
1.5 Effect on other laws or agreements.
1.6 Notice of protection.
1.7 Authority of the Board.
1.8 Employment relationship.


                         SUBPART B--EXEMPTIONS

1.10 Exclusion for employees of the Capitol Police. [Reserved]
1.11 Exemption for national defense and security.
1.12 Exemption for employing offices conducting investigations of 
              economic loss or injury.
1.13 Exemption for employing offices authorized to manufacture, 
              distribute, or dispense controlled substances.


      SUBPART C--RESTRICTIONS ON POLYGRAPH USAGE UNDER EXEMPTIONS

1.20 Adverse employment action under ongoing investigation exemption.
1.21 Adverse employment action under controlled substance exemption.
1.22 Rights of examinee--general.
1.23 Rights of examinee--pretest phase.
1.24 Rights of examinee--actual testing phase.
1.25 Rights of examinee--post-test phase.
1.26 Qualifications of and requirements for examiners.


          SUBPART D--RECORDKEEPING AND DISCLOSURE REQUIREMENTS

1.30 Records to be preserved for 3 years.
1.35 Disclosure of test information.
Appendix A--Notice to Examinee
Authority: Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1314(c)


                           Subpart A--General

     Sec. 1.1 Purpose and scope
       Enacted into law on January 23, 1995, the Congressional 
     Accountability Act (``CAA'') directly applies the rights and 
     protections of eleven federal labor and employment law 
     statutes to covered employees and employing offices within 
     the legislative branch. Section 204(a) of the CAA, 2 U.S.C. 
     Sec. 1314(a) provides that no employing office may require 
     any covered employee (including a covered employee who does 
     not work in that employing office) to take a lie detector 
     test where such test would be prohibited if required by an 
     employer under paragraphs (1), (2) or (3) of section 3 of the 
     Employee Polygraph Protection Act of 1988 (EPPA) 29 U.S.C. 
     Sec. 2002(1), (2) or (3). The purpose of this part is to set 
     forth the regulations to carry out the provisions of Section 
     204 of the CAA.
       Subpart A contains the provisions generally applicable to 
     covered employers, including the requirements relating to the 
     prohibitions on lie detector use. Subpart B sets forth rules 
     regarding the statutory exemptions from application of 
     section 204 of the CAA. Subpart C sets forth the restrictions 
     on polygraph usage under such exemptions. Subpart D sets 
     forth the rules on recordkeeping and the disclosure of 
     polygraph test information.
     Sec. 1.2 Definitions
       For purposes of this part:
       (a) Act or CAA means the Congressional Accountability Act 
     of 1995 (P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-
     1438).
       (b) EPPA means the Employee Polygraph Protection Act of 
     1988 (Pub. L. 100-347, 102 Stat. 646, 29 U.S.C. 
     Sec. Sec. 2001-2009) as applied to covered employees and 
     employing offices by Section 204 of the CAA.
       (c) The term covered employee means any employee of (1) the 
     House of Representatives; (2) the Senate; (3) the Capitol 
     Guide Service; (4) the Congressional Budget Office; (5) the 
     Office of the Architect of the Capitol; (6) the Office of the 
     Attending Physician; (7) the Office of Compliance; or (8) the 
     Office of Technology Assessment.
       (d) The term employee includes an applicant for employment 
     and a former employee.
       (e) The term employee of the Office of the Architect of the 
     Capitol includes any employee of the Office of the Architect 
     of the Capitol, the Botanic Gardens, or the Senate 
     Restaurants.
       (f) The term employee of the Capitol Police includes any 
     member or officer of the Capitol Police.
       (g) The term employee of the House of Representatives 
     includes an individual occupying a position the pay for which 
     is disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by any 
     entity listed in subparagraphs (3) through (8) of paragraph 
     (c) above.
       (h) The term employee of the Senate includes any employee 
     whose pay is disbursed by the Secretary of the Senate, but 
     not any such individual employed by any entity listed in 
     subparagraphs (3) through (8) of paragraph (c) above.
       (i) The term employing office means (1) the personal office 
     of a Member of the House of Representatives or of a Senator; 
     (2) a committee of the House of Representatives or the Senate 
     or a joint committee; (3) any other office headed by a person 
     with the final authority to appoint, hire, discharge, and set 
     the terms, conditions, or privileges of the employment of an 
     employee of the House of Representatives or the Senate; or 
     (4) the Capitol Guide Board, the Congressional Budget Office, 
     the Office of the Architect of the Capitol, the Office of the 
     Attending Physician, the Office of Compliance, and the Office 
     of Technology Assessment. The term employing office includes 
     any person acting directly or indirectly in the interest of 
     an employing office in relation to an employee or prospective 
     employee. A polygraph examiner either employed for or whose 
     services are retained for the sole purpose of administering 
     polygraph tests ordinarily would not be deemed an employing 
     office with respect to the examinees. Any reference to 
     ``employer'' in these regulations includes employing offices.
       (j)(1) The term lie detector means a polygraph, 
     deceptograph, voice stress analyzer, psychological stress 
     evaluator, or any other similar device (whether mechanical or 
     electrical) that is used, or the results of which are used, 
     for the purpose of rendering a diagnostic opinion regarding 
     the honesty or dishonesty of an individual. Voice stress 
     analyzers, or psychological stress evaluators, include any 
     systems that utilize voice stress analysis, whether or not an 
     opinion on honesty or dishonesty is specifically rendered.
       (2) The term lie detector does not include medical tests 
     used to determine the presence or absence of controlled 
     substances or alcohol in bodily fluids. Also not included in 
     the definition of lie detector are written or oral tests 
     commonly referred to as ``honesty'' or ``paper and pencil'' 
     tests, machine-scored or otherwise; and graphology tests 
     commonly referred to as handwriting tests.
       (k) The term polygraph means an instrument that--
       (1) Records continuously, visually, permanently, and 
     simultaneously changes in cardiovascular, respiratory, and 
     electrodermal patterns as minimum instrumentation standards; 
     and
       (2) Is used, or the results of which are used, for the 
     purpose of rendering a diagnostic opinion regarding the 
     honesty or dishonesty of an individual.
       (l) Board means the Board of Directors of the Office of 
     Compliance.
       (m) Office means the Office of Compliance.
     Sec. 1.3 Coverage
       The coverage of Section 204 of the Act extends to any 
     ``covered employee'' or ``covered employing office'' without 
     regard to the number of employees or the employing office's 
     effect on interstate commerce.
     Sec. 1.4 Prohibitions on lie detector use
       (a) Section 204 of the CAA provides that, subject to the 
     exemptions of the EPPA incorporated into the CAA under 
     section 225(f) of the CAA, as set forth in Sec. 1.10 through 
     1.12 of this Part, employing offices are prohibited from: (1) 
     Requiring, requesting, suggesting or causing, directly or 
     indirectly, any covered employee or prospective employee to 
     take or submit to a lie detector test; (2) Using, accepting, 
     or inquiring about the results of a lie detector test of any 
     covered employee or prospective employee; and (3) 
     Discharging, disciplining, discriminating 

[[Page S 17659]]
     against, denying employment or promotion, or threatening any covered 
     employee or prospective employee to take such action for 
     refusal or failure to take or submit to such test, or on the 
     basis of the results of a test. The above prohibitions apply 
     irrespective of whether the covered employee referred to in 
     paragraphs (1), (2) or (3), above, works in that employing 
     office.
        (b) An employing office that reports a theft or other 
     incident involving economic loss to police or other law 
     enforcement authorities is not engaged in conduct subject to 
     the prohibitions under paragraph (a) of this section if, 
     during the normal course of a subsequent investigation, such 
     authorities deem it necessary to administer a polygraph test 
     to a covered employee(s) suspected of involvement in the 
     reported incident. Employing offices that cooperate with 
     police authorities during the course of their investigations 
     into criminal misconduct are likewise not deemed engaged in 
     prohibitive conduct provided that such cooperation is passive 
     in nature. For example, it is not uncommon for police 
     authorities to request employees suspected of theft or 
     criminal activity to submit to a polygraph test during the 
     employee's tour of duty since, as a general rule, suspect 
     employees are often difficult to locate away from their place 
     of employment. Allowing a test on the employing office's 
     premises, releasing a covered employee during working hours 
     to take a test at police headquarters, and other similar 
     types of cooperation at the request of the police authorities 
     would not be construed as ``requiring, requesting, 
     suggesting, or causing, directly or indirectly, any covered 
     employee * * * to take or submit to a lie detector test.'' 
     Cooperation of this type must be distinguished from actual 
     participation in the testing of employees suspected of 
     wrongdoing, either through the administration of a test by 
     the employing office at the request or direction of police 
     authorities, or through reimbursement by the employing office 
     of tests administered by police authorities to employees. In 
     some communities, it may be a practice of police authorities 
     to request testing by employing offices of employees 
     before a police investigation is initiated on a reported 
     incident. In other communities, police examiners are 
     available to covered employing offices, on a cost 
     reimbursement basis, to conduct tests on employees 
     suspected by an employing office of wrongdoing. All such 
     conduct on the part of employing offices is deemed within 
     the prohibitions of section 204 of the CAA.
       (c) The receipt by an employing office of information from 
     a polygraph test administered by police authorities pursuant 
     to an investigation is prohibited by section 3(2) of the 
     EPPA. (See paragraph (a)(2) of this section.)
       (d) The simulated use of a polygraph instrument so as to 
     lead an individual to believe that an actual test is being or 
     may be performed (e.g., to elicit confessions or admissions 
     of guilt) constitutes conduct prohibited by paragraph (a) of 
     this section. Such use includes the connection of a covered 
     employee or prospective employee to the instrument without 
     any intention of a diagnostic purpose, the placement of the 
     instrument in a room used for interrogation unconnected to 
     the covered employee or prospective employee, or the mere 
     suggestion that the instrument may be used during the course 
     of the interview.
       (e) The Capitol Police may not require a covered employee 
     not employed by the Capitol Police to take a lie detector 
     test (on its own initiative or at the request of another 
     employing office) except where the Capitol Police administers 
     such lie detector test as part of an ``ongoing 
     investigation'' by the Capitol Police. For the purpose of 
     this subsection, the definition of ``ongoing investigation'' 
     contained section 1.12(b) shall apply.
     Sec. 1.5 Effect on other laws or agreements
       (a) Section 204 of the CAA does not preempt any otherwise 
     applicable provision of federal law or any rule or regulation 
     of the House or Senate or any negotiated collective 
     bargaining agreement that prohibits lie detector tests or is 
     more restrictive with respect to the use of lie detector 
     tests.
       (b)(1) This provision applies to all aspects of the use of 
     lie detector tests, including procedural safeguards, the use 
     of test results, the rights and remedies provided examinees, 
     and the rights, remedies, and responsibilities of examiners 
     and employing offices. (2) For example, a collective 
     bargaining agreement that provides greater protection to an 
     examinee would apply in addition to the protection provided 
     in section 204 of the CAA.
     Sec. 1.6 Notice of protection
       Pursuant to section 301(h) of the CAA, the Office shall 
     prepare, in a manner suitable for posting, a notice 
     explaining the provisions of section 204 of the CAA. Copies 
     of such notice may be obtained from the Office of Compliance.
     Sec. 1.7 Authority of the Board
       Pursuant to sections 204 and 304 of the CAA, the Board is 
     authorized to issue regulations to implement the rights and 
     protections of the EPPA.
     Sec. 1.8 Employment relationship
       Subject to the exemptions incorporated into the CAA by 
     section 225(f), section 204 applies the prohibitions on the 
     use of lie detectors by employing offices with respect to 
     covered employees irrespective of whether a covered employee 
     works in that employing office. Sections 101 (3), (4) and 204 
     of the CAA also apply EPPA prohibitions against 
     discrimination to applicants for employment and former 
     employees of a covered employing office. For example, an 
     employee may quit rather than take a lie detector test. The 
     employing office cannot discriminate or threaten to 
     discriminate in any manner against that person (such as by 
     providing bad references in the future) because of that 
     person's refusal to be tested. Similarly, an employing office 
     cannot discriminate or threaten to discriminate in any manner 
     against that person because that person files a complaint, 
     institutes a proceeding, testifies in a proceeding, or 
     exercises any right under section 204 of the CAA. (See 
     section 207 of the CAA.)


                         Subpart B--Exemptions

     Sec. 1.10 Exclusion for employees of the Capitol Police
       [Reserved]
     Sec. 1.11 Exemption for national defense and security
       (a) The exemptions allowing for the administration of lie 
     detector tests in the following paragraphs (b) through (e) of 
     this section apply only to the Federal Government; they do 
     not allow covered employing offices to administer such tests. 
     For the purposes of this section, the term ``Federal 
     Government'' means any agency or entity within the Federal 
     Government authorized to administer polygraph examinations 
     which is otherwise exempt from coverage under section 7(a) of 
     the EPPA, 29 U.S.C. Sec. 2006(a).
       (b) Section 7(b)(2)(B) of the EPPA, incorporated into the 
     CAA under section 225(f) of the CAA, provides that nothing in 
     the EPPA shall be construed to prohibit the administration of 
     any lie detector test by the Federal Government, in the 
     performance of any intelligence or counterintelligence 
     function, to any covered employee whose duties involve access 
     to information that has been classified at the level of top 
     secret or designated as being within a special access program 
     under section 4.2 (a) of Executive Order 12356 (or a 
     successor Executive Order).
       (c) Counterintelligence for purposes of the above 
     paragraphs means information gathered and activities 
     conducted to protect against espionage and other clandestine 
     intelligence activities, sabotage, terrorist activities, or 
     assassinations conducted for or on behalf of foreign 
     governments, or foreign or domestic organizations or persons.
       (d) Lie detector tests of persons described in the above 
     paragraphs will be administered in accordance with applicable 
     Department of Defense directives and regulations, or other 
     regulations and directives governing the use of such tests by 
     the United States Government, as applicable.
     Sec. 1.12 Exemption for employing offices conducting 
         investigations of economic loss or injury
       (a) Section 7(d) of the EPPA, incorporated into the CAA 
     under section 225(f) of the CAA, provides a limited exemption 
     from the general prohibition on lie detector use for 
     employers conducting ongoing investigations of economic loss 
     or injury to the employer's business. An employing office may 
     request an employee, subject to the conditions set forth in 
     sections 8 and 10 of the EPPA and Secs. 1.20, 1.22, 1.23, 
     1.24, 1.25, 1.26 and 1.35 of this part, to submit to a 
     polygraph test, but no other type of lie detector test, only 
     if--
       (1) The test is administered in connection with an ongoing 
     investigation involving economic loss or injury to the 
     employing office's business, such as theft, embezzlement, 
     misappropriation or an act of unlawful industrial espionage 
     or sabotage;
       (2) The employee had access to the property that is the 
     subject of the investigation;
       (3) The employing office has a reasonable suspicion that 
     the employee was involved in the incident or activity under 
     investigation;
       (4) The employing office provides the examinee with a 
     statement, in a language understood by the examinee, prior to 
     the test which fully explains with particularity the specific 
     incident or activity being investigated and the basis for 
     testing particular employees and which contains, at a 
     minimum:
       (i) An identification with particularity of the specific 
     economic loss or injury to the business of the employing 
     office;
       (ii) A description of the employee's access to the property 
     that is the subject of the investigation;
       (iii) A description in detail of the basis of the employing 
     office's reasonable suspicion that the employee was involved 
     in the incident or activity under investigation; and
       (iv) Signature of a person (other than a polygraph 
     examiner) authorized to legally bind the employing office; 
     and
       (5) The employing office retains a copy of the statement 
     and proof of service described in paragraph (a)(4) of this 
     section for at least 3 years.
       (b) For the exemption to apply, the condition of an 
     ``ongoing investigation'' must be met. As used in section 
     7(d) of the EPPA, the ongoing investigation must be of a 
     specific incident or activity. Thus, for example, an 
     employing office may not request that an employee or 
     employees submit to a polygraph test in an effort to 
     determine whether or not any thefts have occurred. Such 
     random testing by an employing office is precluded by the 
     EPPA. Further, because the exemption is limited to a specific 
     incident or activity, an employing office is precluded from 
     using the exemption in situations where the so-called 
     ``ongoing investigation'' is continuous. For example, the 
     fact that 

[[Page S 17660]]
     items in inventory are frequently missing from a warehouse would not be 
     a sufficient basis, standing alone, for administering a 
     polygraph test. Even if the employing office can establish 
     that unusually high amounts of inventory are missing from the 
     warehouse in a given month, this, in and of itself, would not 
     be a sufficient basis to meet the specific incident 
     requirement. On the other hand, polygraph testing in response 
     to inventory shortages would be permitted where additional 
     evidence is obtained through subsequent investigation of 
     specific items missing through intentional wrongdoing, and a 
     reasonable suspicion that the employee to be polygraphed was 
     involved in the incident under investigation. Administering a 
     polygraph test in circumstances where the missing inventory 
     is merely unspecified, statistical shortages, without 
     identification of a specific incident or activity that 
     produced the inventory shortages and a ``reasonable suspicion 
     that the employee was involved,'' would amount to little more 
     than a fishing expedition and is prohibited by the EPPA as 
     applied to covered employees and employing offices by the 
     CAA.
       (c)(1)(i) The terms economic loss or injury to the 
     employer's business include both direct and indirect economic 
     loss or injury.
       (ii) Direct loss or injury includes losses or injuries 
     resulting from theft, embezzlement, misappropriation, 
     industrial espionage or sabotage. These examples, cited in 
     the EPPA, are intended to be illustrative and not exhaustive. 
     Another specific incident which would constitute direct 
     economic loss or injury is the misappropriation of 
     confidential or trade secret information.
       (iii) Indirect loss or injury includes the use of an 
     employer's business to commit a crime, such as check-kiting 
     or money laundering. In such cases, the ongoing investigation 
     must be limited to criminal activity that has already 
     occurred, and to use of the employing office's business 
     operations (and not simply the use of the premises) for such 
     activity. For example, the use of an employing office's 
     vehicles, warehouses, computers or equipment to smuggle or 
     facilitate the importing of illegal substances constitutes an 
     indirect loss or injury to the employing office's business 
     operations. Conversely, the mere fact that an illegal act 
     occurs on the employing office's premises (such as a drug 
     transaction that takes place in the employer's parking lot or 
     rest room) does not constitute an indirect economic loss or 
     injury to the employing office.
       (iv) Indirect loss or injury also includes theft or injury 
     to property of another for which the employing office 
     exercises fiduciary, managerial or security responsibility, 
     or where the office has custody of the property (but not 
     property of other offices to which the employees have access 
     by virtue of the business relationship). For example, if a 
     maintenance employee of the manager of an apartment 
     building steals jewelry from a tenant's apartment, the 
     theft results in an indirect economic loss or injury to 
     the employer because of the manager's management 
     responsibility with respect to the tenant's apartment. A 
     messenger on a delivery of confidential business reports 
     for a client firm who steals the reports causes an 
     indirect economic loss or injury to the messenger service 
     because the messenger service is custodian of the client 
     firm's reports, and therefore is responsible for their 
     security. Similarly, the theft of property protected by a 
     security service employer is considered an economic loss 
     or injury to that employer.
       (v) A theft or injury to a client firm does not constitute 
     an indirect loss or injury to an employer unless that 
     employer has custody of, or management, or security 
     responsibility for, the property of the client that was lost 
     or stolen or injured. For example, a cleaning contractor has 
     no responsibility for the money at a client bank. If money is 
     stolen from the bank by one of the cleaning contractor's 
     employees, the cleaning contractor does not suffer an 
     indirect loss or injury.
       (vi) Indirect loss or injury does not include loss or 
     injury which is merely threatened or potential, e.g., a 
     threatened or potential loss of an advantageous business 
     relationship.
       (2) Economic losses or injuries which are the result of 
     unintentional or lawful conduct would not serve as a basis 
     for the administration of a polygraph test. Thus, apparently 
     unintentional losses or injuries stemming from truck, car, 
     workplace, or other similar type accidents or routine 
     inventory or cash register shortages would not meet the 
     economic loss or injury requirement. Any economic loss 
     incident to lawful union or employee activity also would not 
     satisfy this requirement.
       (3) It is the business of the employer which must suffer 
     the economic loss or injury. Thus, a theft committed by one 
     employee against another employee of the same employer would 
     not satisfy the requirement.
       (d) While nothing in the EPPA as applied by the CAA 
     prohibits the use of medical tests to determine the presence 
     of controlled substances or alcohol in bodily fluids, the 
     section 7(d) exemption of the EPPA does not permit the use of 
     a polygraph test to learn whether an employee has used drugs 
     or alcohol, even where such possible use may have contributed 
     to an economic loss to the employer (e.g., an accident 
     involving a company vehicle).
       (e) Section 7(d)(2) of the EPPA provides that, as a 
     condition for the use of the exemption, the employee must 
     have had access to the property that is the subject of the 
     investigation.
        (1) The word access, as used in section 7(d)(2), refers to 
     the opportunity which an employee had to cause, or to aid or 
     abet in causing, the specific economic loss or injury under 
     investigation. The term ``access'', thus, includes more than 
     direct or physical contact during the course of employment. 
     For example, as a general matter, all employees working in or 
     with authority to enter a warehouse storage area have 
     ``access'' to unsecured property in the warehouse. All 
     employees with the combination to a safe have ``access'' to 
     the property in a locked safe. Employees also have ``access'' 
     who have the ability to divert possession or otherwise affect 
     the disposition of the property that is the subject of 
     investigation. For example, a bookkeeper in a jewelry store 
     with access to inventory records may aid or abet a clerk who 
     steals an expensive watch by removing the watch from the 
     employer's inventory records. In such a situation, it is 
     clear that the bookkeeper effectively has ``access'' to the 
     property that is the subject of the investigation.
       (2) As used in section 7(d)(2), property refers to 
     specifically identifiable property, but also includes such 
     things of value as security codes and computer data, and 
     proprietary, financial or technical information, such as 
     trade secrets, which by its availability to competitors or 
     others would cause economic harm to the employer.
       (f)(1) As used in section 7(d)(3), the term reasonable 
     suspicion refers to an observable, articulable basis in fact 
     which indicates that a particular employee was involved in, 
     or responsible for, an economic loss. Access in the sense of 
     possible or potential opportunity, standing alone, does not 
     constitute a basis for ``reasonable suspicion.'' Information 
     from a co-worker, or an employee's behavior, demeanor, or 
     conduct may be factors in the basis for reasonable suspicion. 
     Likewise, inconsistencies between facts, claims, or 
     statements that surface during an investigation can serve as 
     a sufficient basis for reasonable suspicion. While access or 
     opportunity, standing alone, does not constitute a basis for 
     reasonable suspicion, the totality of circumstances 
     surrounding the access or opportunity (such as its 
     unauthorized or unusual nature or the fact that access was 
     limited to a single individual) may constitute a factor in 
     determining whether there is a reasonable suspicion.
       (2) For example, in an investigation of a theft of an 
     expensive piece of jewelry, an employee authorized to open 
     the establishment's safe no earlier than 9 a.m., in order to 
     place the jewelry in a window display case, is observed 
     opening the safe at 7:30 a.m. In such a situation, the 
     opening of the safe by the employee one and one-half hours 
     prior to the specified time may serve as the basis for 
     reasonable suspicion. On the other hand, in the example 
     given, if the employer asked the employee to bring the piece 
     of jewelry to his or her office at 7:30 a.m., and the 
     employee then opened the safe and reported the jewelry 
     missing, such access, standing alone, would not constitute a 
     basis for reasonable suspicion that the employee was involved 
     in the incident unless access to the safe was limited solely 
     to the employee. If no one other than the employee possessed 
     the combination to the safe, and all other possible 
     explanations for the loss are ruled out, such as a break-in, 
     the employer may formulate a basis for reasonable suspicion 
     based on sole access by one employee.
       (3) The employer has the burden of establishing that the 
     specific individual or individuals to be tested are 
     ``reasonably suspected'' of involvement in the specific 
     economic loss or injury for the requirement in section 
     7(d)(3) of the EPPA to be met.
       (g)(1) As discussed in paragraph (a)(4) of this section, 
     section 7(d)(4) of the EPPA sets forth what information, at a 
     minimum, must be provided to an employee if the employer 
     wishes to claim the exemption.
       (2) The statement required under paragraph (a)(4) of this 
     section must be received by the employee at least 48 hours, 
     excluding weekend days and holidays, prior to the time of the 
     examination. The statement must set forth the time and date 
     of receipt by the employee and be verified by the employee's 
     signature. This will provide the employee with adequate pre-
     test notice of the specific incident or activity being 
     investigated and afford the employee sufficient time prior to 
     the test to obtain and consult with legal counsel or an 
     employee representative.
       (3) The statement to be provided to the employee must set 
     forth with particularity the specific incident or activity 
     being investigated and the basis for testing particular 
     employees. Section 7(d)(4)(A) of the EPPA requires 
     specificity beyond the mere assertion of general statements 
     regarding economic loss, employee access, and reasonable 
     suspicion. For example, an employer's assertion that an 
     expensive watch was stolen, and that the employee had access 
     to the watch and is therefore a suspect, would not meet the 
     ``with particularity'' criterion. If the basis for an 
     employer's requesting an employee (or employees) to take a 
     polygraph test is not articulated with particularity, and 
     reduced to writing, then the standard is not met. The 
     identity of a co-worker or other individual providing 
     information used to establish reasonable suspicion need not 
     be revealed in the statement.
       (4) It is further required that the statement provided to 
     the examinee be signed by the employer, or an employee or 
     other representative of the employer with authority to 
     legally bind the employer. The person 

[[Page S 17661]]
     signing the statement must not be a polygraph examiner unless the 
     examiner is acting solely in the capacity of an employer with 
     respect to his or her own employees and does not conduct the 
     examination. The standard would not be met, and the exemption 
     would not apply if the person signing the statement is not 
     authorized to legally bind the employer.
       (h) Polygraph tests administered pursuant to this exemption 
     are subject to the limitations set forth in sections 8 and 10 
     of the EPPA, as discussed in Secs. 1.20, 1.22, 1.23, 1.24, 
     1.25, 1.26, and 1.35 of this part. As provided in these 
     sections, the exemption will apply only if certain 
     requirements are met. Failure to satisfy any of the specified 
     requirements nullifies the statutory authority for polygraph 
     test administration and may subject the employing office to 
     remedial actions, as provided for in section 6(c) of the 
     EPPA.
     Sec. 1.13 Exemption of employers authorized to manufacture, 
         distribute, or dispense controlled substances
       (a) Section 7(f) of the EPPA, incorporated into the CAA by 
     section 225(f) of the CAA, provides an exemption from the 
     EPPA's general prohibition regarding the use of polygraph 
     tests for employers authorized to manufacture, distribute, or 
     dispense a controlled substance listed in schedule I, II, 
     III, or IV of section 202 of the Controlled Substances Act 
     (21 U.S.C. Sec. 812). This exemption permits the 
     administration of polygraph tests, subject to the conditions 
     set forth in sections 8 and 10 of the EPPA and Sec. 1.21, 
     1.22, 1.23, 1.24, 1.25, 1.26, and 1.35 of this part, to:
       (1) A prospective employee who would have direct access to 
     the manufacture, storage, distribution, or sale of any such 
     controlled substance; or
       (2) A current employee if the following conditions are met:
       (i) The test is administered in connection with an ongoing 
     investigation of criminal or other misconduct involving, or 
     potentially involving, loss or injury to the manufacture, 
     distribution, or dispensing of any such controlled substance 
     by such employer; and
       (ii) The employee had access to the person or property that 
     is the subject of the investigation.
       (b)(1) The terms manufacture, distribute, distribution, 
     dispense, storage, and sale, for the purposes of this 
     exemption, are construed within the meaning of the Controlled 
     Substances Act (21 U.S.C. Sec. 812 et seq.), as administered 
     by the Drug Enforcement Administration (DEA), U.S. Department 
     of Justice.
       (2) The exemption in section 7(f) of the EPPA applies only 
     to employers who are authorized by DEA to manufacture, 
     distribute, or dispense a controlled substance. Section 202 
     of the Controlled Substances Act (21 U.S.C. Sec. 812) 
     requires every person who manufactures, distributes, or 
     dispenses any controlled substance to register with the 
     Attorney General (i.e., with DEA). Common or contract 
     carriers and warehouses whose possession of the controlled 
     substance is in the usual course of their business or 
     employment are not required to register. Truck drivers and 
     warehouse employees of the persons or entities registered 
     with DEA and authorized to manufacture, distribute, or 
     dispense controlled substances, are within the scope of the 
     exemption where they have direct access or access to the 
     controlled substances, as discussed below.
       (c) In order for a polygraph examination to be performed, 
     section 7(f) of the Act requires that a prospective employee 
     have ``direct access'' to the controlled substance(s) 
     manufactured, dispensed, or distributed by the employer. 
     Where a current employee is to be tested as a part of an 
     ongoing investigation, section 7(f) requires that the 
     employee have ``access'' to the person or property that is 
     the subject of the investigation.
       (1) A prospective employee would have ``direct access'' if 
     the position being applied for has responsibilities which 
     include contact with or which affect the disposition of a 
     controlled substance, including participation in the process 
     of obtaining, dispensing, or otherwise distributing a 
     controlled substance. This includes contact or direct 
     involvement in the manufacture, storage, testing, 
     distribution, sale or dispensing of a controlled substance 
     and may include, for example, packaging, repackaging, 
     ordering, licensing, shipping, receiving, taking inventory, 
     providing security, prescribing, and handling of a controlled 
     substance. A prospective employee would have ``direct 
     access'' if the described job duties would give such person 
     access to the products in question, whether such employee 
     would be in physical proximity to controlled substances or 
     engaged in activity which would permit the employee to divert 
     such substances to his or her possession.
       (2) A current employee would have ``access'' within the 
     meaning of section 7(f) if the employee had access to the 
     specific person or property which is the subject of the on-
     going investigation, as discussed in Sec. 1.12(e) of this 
     part. Thus, to test a current employee, the employee need not 
     have had ``direct'' access to the controlled substance, but 
     may have had only infrequent, random, or opportunistic 
     access. Such access would be sufficient to test the employee 
     if the employee could have caused, or could have aided or 
     abetted in causing, the loss of the specific property which 
     is the subject of the investigation. For example, a 
     maintenance worker in a drug warehouse, whose job duties 
     include the cleaning of areas where the controlled substances 
     which are the subject of the investigation were present, but 
     whose job duties do not include the handling of controlled 
     substances, would be deemed to have ``access'', but 
     normally not ``direct access'', to the controlled 
     substances. On the other hand, a drug warehouse truck 
     loader, whose job duties include the handling of outgoing 
     shipment orders which contain controlled substances, would 
     have ``direct access'' to such controlled substances. A 
     pharmacy department in a supermarket is another common 
     situation which is useful in illustrating the distinction 
     between ``direct access'' and ``access.'' Store personnel 
     receiving pharmaceutical orders, i.e., the pharmacist, 
     pharmacy intern, and other such employees working in the 
     pharmacy department, would ordinarily have ``direct 
     access'' to controlled substances. Other store personnel 
     whose job duties and responsibilities do not include the 
     handling of controlled substances but who had occasion to 
     enter the pharmacy department where the controlled 
     substances which are the subject of the investigation were 
     stored, such as maintenance personnel or pharmacy 
     cashiers, would have ``access.'' Certain other store 
     personnel whose job duties do not permit or require 
     entrance into the pharmacy department for any reason, such 
     as produce or meat clerks, checkout cashiers, or baggers, 
     would not ordinarily have ``access.'' However, any current 
     employee, regardless of described job duties, may be 
     polygraphed if the employer's investigation of criminal or 
     other misconduct discloses that such employee in fact took 
     action to obtain ``access'' to the person or property that 
     is the subject of the investigation--e.g., by actually 
     entering the drug storage area in violation of company 
     rules. In the case of ``direct access'', the prospective 
     employee's access to controlled substances would be as a 
     part of the manufacturing, dispensing or distribution 
     process, while a current employee's ``access'' to the 
     controlled substances which are the subject of the 
     investigation need only be opportunistic.
       (d) The term prospective employee, for the purposes of this 
     section, includes a current employee who presently holds a 
     position which does not entail direct access to controlled 
     substances, and therefore is outside the scope of the 
     exemption's provisions for preemployment polygraph testing, 
     provided the employee has applied for and is being considered 
     for transfer or promotion to another position which entails 
     such direct access. For example, an office secretary may 
     apply for promotion to a position in the vault or cage areas 
     of a drug warehouse, where controlled substances are kept. In 
     such a situation, the current employee would be deemed a 
     ``prospective employee'' for the purposes of this exemption, 
     and thus could be subject to preemployment polygraph 
     screening, prior to such a change in position. However, any 
     adverse action which is based in part on a polygraph test 
     against a current employee who is considered a ``prospective 
     employee'' for purposes of this section may be taken only 
     with respect to the prospective position and may not affect 
     the employee's employment in the current position.
       (e) Section 7(f) of the EPPA makes no specific reference to 
     a requirement that employers provide current employees with a 
     written statement prior to polygraph testing. Thus, employers 
     to whom this exemption is available are not required to 
     furnish a written statement such as that specified in section 
     7(d) of the EPPA and Sec. 1.12(a)(4) of this part.
       (f) For the section 7(f) exemption to apply, the polygraph 
     testing of current employees must be administered in 
     connection with an ongoing investigation of criminal or other 
     misconduct involving, or potentially involving, loss or 
     injury to the manufacture, distribution, or dispensing of any 
     such controlled substance by such employer.
       (1) Current employees may only be administered polygraph 
     tests in connection with an ongoing investigation of criminal 
     or other misconduct, relating to a specific incident or 
     activity, or potential incident or activity. Thus, an 
     employer is precluded from using the exemption in connection 
     with continuing investigations or on a random basis to 
     determine if thefts are occurring. However, unlike the 
     exemption in section 7(d) of the EPPA for employers 
     conducting ongoing investigations of economic loss or injury, 
     the section 7(f) exemption includes ongoing investigations of 
     misconduct involving potential drug losses. Nor does the 
     latter exemption include the requirement for ``reasonable 
     suspicion'' contained in the section 7(d) exemption. Thus, a 
     drug store employer is permitted to polygraph all current 
     employees who have access to a controlled substance stolen 
     from the inventory, or where there is evidence that such a 
     theft is planned. Polygraph testing based on an inventory 
     shortage of the drug during a particular accounting period 
     would not be permitted unless there is extrinsic evidence of 
     misconduct.
       (2) In addition, the test must be administered in 
     connection with loss or injury, or potential loss or injury, 
     to the manufacture, distribution, or dispensing of a 
     controlled substance.
       (i) Retail drugstores and wholesale drug warehouses 
     typically carry inventory of so-called health and beauty 
     aids, cosmetics, over-the-counter drugs, and a variety of 
     other similar products, in addition to their product lines of 
     controlled drugs. The noncontrolled products usually 
     constitute the majority of such firms' sales volumes. An 
     economic loss or injury related to such 

[[Page S 17662]]
     noncontrolled substances would not constitute a basis of applicability 
     of the section 7(f) exemption. For example, an investigation 
     into the theft of a gross of cosmetic products could not be a 
     basis for polygraph testing under section 7(f), but the theft 
     of a container of valium could be.
       (ii) Polygraph testing, with respect to an ongoing 
     investigation concerning products other than controlled 
     substances might be initiated under section 7(d) of the EPPA 
     and Sec. 1.12 of this part. However, the exemption in section 
     7(f) of the EPPA and this section is limited solely to losses 
     or injury associated with controlled substances.
       (g) Polygraph tests administered pursuant to this exemption 
     are subject to the limitations set forth in sections 8 and 10 
     of the EPPA, as discussed in Secs. 1.21, 1.22, 1.23, 1.24, 
     1.25, 1.26, and 1.35 of this part. As provided in these 
     sections, the exemption will apply only if certain 
     requirements are met. Failure to satisfy any of the specified 
     requirements nullifies the statutory authority for polygraph 
     test administration and may subject the employer to the 
     remedial actions authorized in section 204 of the CAA. The 
     administration of such tests is also subject to collective 
     bargaining agreements, which may either prohibit lie detector 
     tests, or contain more restrictive provisions with respect to 
     polygraph testing.


      Subpart C--Restrictions on Polygraph Usage Under Exemptions

     Sec. 1.20 Adverse employment action under ongoing 
         investigation exemption
       (a) Section 8(a) (1) of the EPPA provides that the limited 
     exemption in section 7(d) of the EPPA and Sec. 1.12 of this 
     part for ongoing investigations shall not apply if an 
     employer discharges, disciplines, denies employment or 
     promotion or otherwise discriminates in any manner against a 
     current employee based upon the analysis of a polygraph test 
     chart or the refusal to take a polygraph test, without 
     additional supporting evidence.
       (b) ``Additional supporting evidence'', for purposes of 
     section 8(a) of the EPPA, includes, but is not limited to, 
     the following:
       (1)(i) Evidence indicating that the employee had access to 
     the missing or damaged property that is the subject of an 
     ongoing investigation; and
       (ii) Evidence leading to the employer's reasonable 
     suspicion that the employee was involved in the incident or 
     activity under investigation; or
       (2) Admissions or statements made by an employee before, 
     during or following a polygraph examination.
       (c) Analysis of a polygraph test chart or refusal to take a 
     polygraph test may not serve as a basis for adverse 
     employment action, even with additional supporting evidence, 
     unless the employer observes all the requirements of sections 
     7(d) and 8(b) of the EPPA, as described in Secs. 1.12, 1.22, 
     1.23, 1.24 and 1.25 of this part.
     Sec. 1.21 Adverse employment action under controlled 
         substance exemption
       (a) Section 8(a)(2) of the EPPA provides that the 
     controlled substance exemption in section 7(f) of the EPPA 
     and section 1.13 of this part shall not apply if an employing 
     office discharges, disciplines, denies employment or 
     promotion, or otherwise discriminates in any manner against a 
     current employee or prospective employee based solely on the 
     analysis of a polygraph test chart or the refusal to take a 
     polygraph test.
       (b) Analysis of a polygraph test chart or refusal to take a 
     polygraph test may serve as one basis for adverse employment 
     actions of the type described in paragraph (a) of this 
     section, provided that the adverse action was also based on 
     another bona fide reason, with supporting evidence therefor. 
     For example, traditional factors such as prior employment 
     experience, education, job performance, etc. may be used as a 
     basis for employment decisions. Employment decisions based on 
     admissions or statements made by an employee or prospective 
     employee before, during or following a polygraph examination 
     may, likewise, serve as a basis for such decisions.
       (c) Analysis of a polygraph test chart or the refusal to 
     take a polygraph test may not serve as a basis for adverse 
     employment action, even with another legitimate basis for 
     such action, unless the employing office observes all the 
     requirements of section 7(f) of the EPPA, as appropriate, and 
     section 8(b) of the EPPA, as described in sections 1.13, 
     1.22, 1.23, 1.24 and 1.25 of this part.
     Sec. 1.22 Rights of examinee--general
       (a) Pursuant to section 8(b) of the EPPA, the limited 
     exemption in section 7(d) of the EPPA for ongoing 
     investigations (described in Sec. 1.12 of this part) shall 
     not apply unless all of the requirements set forth in this 
     section and Secs. 1.23 through 1.25 of this part are met.
       (b) During all phases of the polygraph testing the person 
     being examined has the following rights:
       (1) The examinee may terminate the test at any time.
       (2) The examinee may not be asked any questions in a 
     degrading or unnecessarily intrusive manner.
       (3) The examinee may not be asked any questions dealing 
     with:
       (i) Religious beliefs or affiliations;
       (ii) Beliefs or opinions regarding racial matters;
       (iii) Political beliefs or affiliations;
       (iv) Sexual preferences or behavior; or
       (v) Beliefs, affiliations, opinions, or lawful activities 
     concerning unions or labor organizations.
       (4) The examinee may not be subjected to a test when there 
     is sufficient written evidence by a physician that the 
     examinee is suffering from any medical or psychological 
     condition or undergoing any treatment that might cause 
     abnormal responses during the actual testing phase. 
     ``Sufficient written evidence'' shall constitute, at a 
     minimum, a statement by a physician specifically describing 
     the examinee's medical or psychological condition or 
     treatment and the basis for the physician's opinion that the 
     condition or treatment might result in such abnormal 
     responses.
       (5) An employee or prospective employee who exercises the 
     right to terminate the test, or who for medical reasons with 
     sufficient supporting evidence is not administered the test, 
     shall be subject to adverse employment action only on the 
     same basis as one who refuses to take a polygraph test, as 
     described in Secs. 1.20 and 1.21 of this part.
       (c) Any polygraph examination shall consist of one or more 
     pretest phases, actual testing phases, and post-test phases, 
     which must be conducted in accordance with the rights of 
     examinees described in Secs. 1.23 through 1.25 of this part.
     Sec. 1.23 Rights of examinee--pretest phase
       (a) The pretest phase consists of the questioning and other 
     preparation of the prospective examinee before the actual use 
     of the polygraph instrument. During the initial pretest 
     phase, the examinee must be:
       (1) Provided with written notice, in a language understood 
     by the examinee, as to when and where the examination will 
     take place and that the examinee has the right to consult 
     with counsel or an employee representative before each phase 
     of the test. Such notice shall be received by the examinee at 
     least forty-eight hours, excluding weekend days and holidays, 
     before the time of the examination, except that a prospective 
     employee may, at the employee's option, give written consent 
     to administration of a test anytime within 48 hours but no 
     earlier than 24 hours after receipt of the written notice. 
     The written notice or proof of service must set forth the 
     time and date of receipt by the employee or prospective 
     employee and be verified by his or her signature. The purpose 
     of this requirement is to provide a sufficient opportunity 
     prior to the examination for the examinee to consult with 
     counsel or an employee representative. Provision shall also 
     be made for a convenient place on the premises where the 
     examination will take place at which the examinee may consult 
     privately with an attorney or an employee representative 
     before each phase of the test. The attorney or representative 
     may be excluded from the room where the examination is 
     administered during the actual testing phase.
       (2) Informed orally and in writing of the nature and 
     characteristics of the polygraph instrument and examination, 
     including an explanation of the physical operation of the 
     polygraph instrument and the procedure used during the 
     examination.
       (3) Provided with a written notice prior to the testing 
     phase, in a language understood by the examinee, which shall 
     be read to and signed by the examinee. Use of Appendix A to 
     this part, if properly completed, will constitute compliance 
     with the contents of the notice requirement of this 
     paragraph. If a format other than in Appendix A is used, it 
     must contain at least the following information:
       (i) Whether or not the polygraph examination area contains 
     a two-way mirror, a camera, or other device through which the 
     examinee may be observed;
       (ii) Whether or not any other device, such as those used in 
     conversation or recording will be used during the 
     examination;
       (iii) That both the examinee and the employing office have 
     the right, with the other's knowledge, to make a recording of 
     the entire examination;
       (iv) That the examinee has the right to terminate the test 
     at any time;
       (v) That the examinee has the right, and will be given the 
     opportunity, to review all questions to be asked during the 
     test;
       (vi) That the examinee may not be asked questions in a 
     manner which degrades, or needlessly intrudes;
       (vii) That the examinee may not be asked any questions 
     concerning religious beliefs or opinions; beliefs regarding 
     racial matters; political beliefs or affiliations; matters 
     relating to sexual behavior; beliefs, affiliations, opinions, 
     or lawful activities regarding unions or labor organizations;
       (viii) That the test may not be conducted if there is 
     sufficient written evidence by a physician that the examinee 
     is suffering from a medical or psychological condition or 
     undergoing treatment that might cause abnormal responses 
     during the examination;
       (ix) That the test is not and cannot be required as a 
     condition of employment;
       (x) That the employing office may not discharge, dismiss, 
     discipline, deny employment or promotion, or otherwise 
     discriminate against the examinee based on the analysis of a 
     polygraph test, or based on the examinee's refusal to take 
     such a test, without additional evidence which would support 
     such action;
       (xi)(A) In connection with an ongoing investigation, that 
     the additional evidence required for the employing office to 
     take adverse action against the examinee, including 
     termination, may be evidence that the examinee had access to 
     the property that is the subject of the investigation, 
     together with 

[[Page S 17663]]
     evidence supporting the employer's reasonable suspicion that the 
     examinee was involved in the incident or activity under 
     investigation;
       (B) That any statement made by the examinee before or 
     during the test may serve as additional supporting evidence 
     for an adverse employment action, as described in paragraph 
     (a)(3)(x) of this section, and that any admission of criminal 
     conduct by the examinee may be transmitted to an appropriate 
     government law enforcement agency;
       (xii) That information acquired from a polygraph test may 
     be disclosed by the examiner or by the employing office only:
       (A) To the examinee or any other person specifically 
     designated in writing by the examinee to receive such 
     information;
       (B) To the employing office that requested the test;
       (C) To a court, governmental agency, arbitrator, or 
     mediator pursuant to a court order;
       (D) By the employing office, to an appropriate governmental 
     agency without a court order where, and only insofar as, the 
     information disclosed is an admission of criminal conduct;
       (xiii) That if any of the examinee's rights or protections 
     under the law are violated, the examinee has the right to 
     take action against the employing office under sections 401-
     404 of the CAA. Employing offices that violate this law are 
     liable to the affected examinee, who may recover such legal 
     or equitable relief as may be appropriate, including, but not 
     limited to, employment, reinstatement, and promotion, payment 
     of lost wages and benefits, and reasonable costs, including 
     attorney's fees;
       (xiv) That the examinee has the right to obtain and consult 
     with legal counsel or other representative before each phase 
     of the test, although the legal counsel or representative may 
     be excluded from the room where the test is administered 
     during the actual testing phase.
       (xv) That the employee's rights under the EPPA may not be 
     waived, either voluntarily or involuntarily, by contract or 
     otherwise, except as part of a written settlement to a 
     pending action or complaint under the EPPA, agreed to and 
     signed by the parties.
       (b) During the initial or any subsequent pretest phases, 
     the examinee must be given the opportunity, prior to the 
     actual testing phase, to review all questions in writing that 
     the examiner will ask during each testing phase. Such 
     questions may be presented at any point in time prior to the 
     testing phase.
     Sec. 1.24 Rights of examinee--actual testing phase
       (a) The actual testing phase refers to that time during 
     which the examiner administers the examination by using a 
     polygraph instrument with respect to the examinee and then 
     analyzes the charts derived from the test. Throughout the 
     actual testing phase, the examiner shall not ask any question 
     that was not presented in writing for review prior to the 
     testing phase. An examiner may, however, recess the testing 
     phase and return to the pre-test phase to review additional 
     relevant questions with the examinee. In the case of an 
     ongoing investigation, the examiner shall ensure that all 
     relevant questions (as distinguished from technical baseline 
     questions) pertain to the investigation.
       (b) No testing period subject to the provisions of the Act 
     shall be less than ninety minutes in length. Such ``test 
     period'' begins at the time that the examiner begins 
     informing the examinee of the nature and characteristics of 
     the examination and the instruments involved, as prescribed 
     in section 8(b)(2)(B) of the EPPA and Sec. 1.23(a)(2) of this 
     part, and ends when the examiner completes the review of the 
     test results with the examinee as provided in Sec. 1.25 of 
     this part. The ninety-minute minimum duration shall not apply 
     if the examinee voluntarily acts to terminate the test before 
     the completion thereof, in which event the examiner may not 
     render an opinion regarding the employee's truthfulness.
     Sec. 1.25 Rights of examinee--post-test phase
       (a) The post-test phase refers to any questioning or other 
     communication with the examinee following the use of the 
     polygraph instrument, including review of the results of the 
     test with the examinee. Before any adverse employment action, 
     the employing office must:
       (1) Further interview the examinee on the basis of the test 
     results; and
       (2) Give to the examinee a written copy of any opinions or 
     conclusions rendered in response to the test, as well as the 
     questions asked during the test, with the corresponding 
     charted responses. The term ``corresponding charted 
     responses'' refers to copies of the entire examination charts 
     recording the employee's physiological responses, and not 
     just the examiner's written report which describes the 
     examinee's responses to the questions as ``charted'' by the 
     instrument.
     Sec. 1.26 Qualifications of and requirements for examiners
       (a) Section 8 (b) and (c ) of the EPPA provides that the 
     limited exemption in section 7(d) of the EPPA for ongoing 
     investigations shall not apply unless the person conducting 
     the polygraph examination meets specified qualifications and 
     requirements.
       (b) An examiner must meet the following qualifications:
       (1) Have a valid current license, if required by the State 
     in which the test is to be conducted; and
       (2) Carry a minimum bond of $50,000 provided by a surety 
     incorporated under the laws of the United States or of any 
     State, which may under those laws guarantee the fidelity of 
     persons holding positions of trust, or carry an equivalent 
     amount of professional liability coverage.
       (c) An examiner must also, with respect to examinees 
     identified by the employing office pursuant to Sec. 1.30(c) 
     of this part:
       (1) Observe all rights of examinees, as set out in Secs. 
     1.22, 1.23, 1.24, and 1.25 of this part;
       (2) Administer no more than five polygraph examinations in 
     any one calendar day on which a test or tests subject to the 
     provisions of EPPA are administered, not counting those 
     instances where an examinee voluntarily terminates an 
     examination prior to the actual testing phase;
       (3) Administer no polygraph examination subject to the 
     provisions of the EPPA which is less than ninety minutes in 
     duration, as described in Sec. 1.24(b) of this part; and
       (4) Render any opinion or conclusion regarding truthfulness 
     or deception in writing. Such opinion or conclusion must be 
     based solely on the polygraph test results. The 
     written report shall not contain any information other 
     than admissions, information, case facts, and 
     interpretation of the charts relevant to the stated 
     purpose of the polygraph test and shall not include any 
     recommendation concerning the employment of the examinee.
       (5) Maintain all opinions, reports, charts, written 
     questions, lists, and other records relating to the test, 
     including, statements signed by examinees advising them of 
     rights under the CAA (as described in section 1.23(a)(3) of 
     this part) and any electronic recordings of examinations, for 
     at least three years from the date of the administration of 
     the test. (See section 1.30 of this part for recordkeeping 
     requirements.)


          Subpart D--Recordkeeping and Disclosure Requirements

     Sec. 1.30 Records to be preserved for 3 years
       (a) The following records shall be kept for a minimum 
     period of three years from the date the polygraph examination 
     is conducted (or from the date the examination is requested 
     if no examination is conducted):
       (1) Each employing office that requests an employee to 
     submit to a polygraph examination in connection with an 
     ongoing investigation involving economic loss or injury shall 
     retain a copy of the statement that sets forth the specific 
     incident or activity under investigation and the basis for 
     testing that particular covered employee, as required by 
     section 7(d)(4) of the EPPA and described in 1.12(a)(4) of 
     this part.
       (2) Each examiner retained to administer examinations 
     pursuant to any of the exemptions under section 7(d), (e) or 
     (f) of the EPPA (described in sections 1.12, 1.13, and 1.14 
     of this part) shall maintain all opinions, reports, charts, 
     written questions, lists, and other records relating to 
     polygraph tests of such persons.
     Sec. 1.35 Disclosure of test information
       This section prohibits the unauthorized disclosure of any 
     information obtained during a polygraph test by any person, 
     other than the examinee, directly or indirectly, except as 
     follows:
       (a) A polygraph examiner or an employing office (other than 
     an employing office exempt under section 7 (a), (b), or (c) 
     of the EPPA (described in Secs. 1.10 and 1.11 of this part)) 
     may disclose information acquired from a polygraph test only 
     to:
       (1) The examinee or an individual specifically designated 
     in writing by the examinee to receive such information;
       (2) The employing office that requested the polygraph test 
     pursuant to the provisions of the EPPA (including management 
     personnel of the employing office where the disclosure is 
     relevant to the carrying out of their job responsibilities);
       (3) Any court, governmental agency, arbitrator, or mediator 
     pursuant to an order from a court of competent jurisdiction 
     requiring the production of such information;
       (b) An employing office may disclose information from the 
     polygraph test at any time to an appropriate governmental 
     agency without the need of a court order where, and only 
     insofar as, the information disclosed is an admission of 
     criminal conduct.
       (c) A polygraph examiner may disclose test charts, without 
     identifying information (but not other examination materials 
     and records), to another examiner(s) for examination and 
     analysis, provided that such disclosure is for the sole 
     purpose of consultation and review of the initial examiner's 
     opinion concerning the indications of truthfulness or 
     deception. Such action would not constitute disclosure under 
     this part provided that the other examiner has no direct or 
     indirect interest in the matter.


               APPENDIX A TO PART 801--NOTICE TO EXAMINEE

       Section 204 of the Congressional Accountability Act, which 
     extends the rights and protections of section 8(b) of the 
     Employee Polygraph Protection Act, and the regulations of the 
     Board of Directors of the Office of Compliance (Sections 
     1.22, 1.23, 1.24, and 1.25), require that you be given the 
     following information before taking a polygraph examination:
       1. (a) The polygraph examination area [does] [does not] 
     contain a two-way mirror, a camera, or other device through 
     which you may be observed.
       (b) Another device, such as those used in conversation or 
     recording, [will] [will not] be used during the examination. 

[[Page S 17664]]

       (c) Both you and the employing office have the right, with 
     the other's knowledge, to record electronically the entire 
     examination.
       2. (a) You have the right to terminate the test at any 
     time.
       (b) You have the right, and will be given the opportunity, 
     to review all questions to be asked during the test.
       (c) You may not be asked questions in a manner which 
     degrades, or needlessly intrudes.
       (d) You may not be asked any questions concerning: 
     Religious beliefs or opinions; beliefs regarding racial 
     matters; political beliefs or affiliations; matters relating 
     to sexual preference or behavior; beliefs, affiliations, 
     opinions, or lawful activities regarding unions or labor 
     organizations.
       (e) The test may not be conducted if there is sufficient 
     written evidence by a physician that you are suffering from a 
     medical or psychological condition or undergoing treatment 
     that might cause abnormal responses during the examination.
       (f) You have the right to consult with legal counsel or 
     other representative before each phase of the test, although 
     the legal counsel or other representative may be excluded 
     from the room where the test is administered during the 
     actual testing phase.
       3. (a) The test is not and cannot be required as a 
     condition of employment.
       (b) The employer may not discharge, dismiss, discipline, 
     deny employment or promotion, or otherwise discriminate 
     against you based on the analysis of a polygraph test, or 
     based on your refusal to take such a test without additional 
     evidence which would support such action.
       (c)(1) In connection with an ongoing investigation, the 
     additional evidence required for an employing office to take 
     adverse action against you, including termination, may be (A) 
     evidence that you had access to the property that is the 
     subject of the investigation, together with (B) the evidence 
     supporting the employing office's reasonable suspicion that 
     you were involved in the incident or activity under 
     investigation.
       (2) Any statement made by you before or during the test may 
     serve as additional supporting evidence for an adverse 
     employment action, as described in 3(b) above, and any 
     admission of criminal conduct by you may be transmitted to an 
     appropriate government law enforcement agency.
       4. (a) Information acquired from a polygraph test may be 
     disclosed by the examiner or by the employing office only:
       (1) To you or any other person specifically designated in 
     writing by you to receive such information;
       (2) To the employing office that requested the test;
       (3) To a court, governmental agency, arbitrator, or 
     mediator that obtains a court order;
       (b) Information acquired from a polygraph test may be 
     disclosed by the employing office to an appropriate 
     governmental agency without a court order where, and only 
     insofar as, the information disclosed is an admission of 
     criminal conduct.
       5. If any of your rights or protections under the law are 
     violated, you have the right to take action against the 
     employing office by filing a request for counseling with the 
     Office of Compliance under section 402 of the Congressional 
     Accountability Act. Employing offices that violate this law 
     are liable to the affected examinee, who may recover such 
     legal or equitable relief as may be appropriate, including, 
     but not limited to, employment, reinstatement, and promotion, 
     payment of lost wages and benefits, and reasonable costs, 
     including attorney's fees.
       6. Your rights under the EPPA may not be waived, either 
     voluntarily or involuntarily, by contract or otherwise, 
     except as part of a written settlement to a pending action or 
     complaint under the EPPA, and agreed to and signed by the 
     parties.
       I acknowledge that I have received a copy of the above 
     notice, and that it has been read to me. ____________________
     (Date) ____________________
     (Signature)

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