[Congressional Record Volume 142, Number 47 (Monday, April 15, 1996)]
[House]
[Pages H3339-H3341]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




APPROVING REGULATIONS TO IMPLEMENT THE CONGRESSIONAL ACCOUNTABILITY ACT 
   OF 1995 WITH RESPECT TO EMPLOYEES OF THE HOUSE OF REPRESENTATIVES

  Mr. THOMAS. Mr. Speaker, I move to suspend the rules and agree to the 
resolution (H. Res. 400) approving regulations to implement the 
Congressional Accountability Act of 1995 with respect to employing 
offices and covered employees of the House of Representatives.
  The Clerk read as follows:

                              H. Res. 400

           Resolved,

     SECTION 1. APPROVAL OF REGULATIONS.

         (a) In General.--The regulations listed in subsection (b) 
     are hereby approved, insofar as such regulations apply to 
     employing offices and covered employees of the House of 
     Representatives.
         (b) Regulations Approved.--The regulations referred to in 
     subsection (a) are the following regulations issued by the 
     Office of Compliance on January 22, 1996, as published in the 
     Congressional Record on January 22, 1996 (Volume 142, daily 
     edition), each beginning on the page indicated:
         (1) Regulation on rights and protections under the Family 
     and Medical Leave Act of 1993, page S200.
         (2) Regulation on rights and protections under the Fair 
     Labor Standards Act of 1938, page S238.
         (3) Regulation on use of lie detector tests by the 
     Capitol Police, page S261.
         (4) Regulation on rights and protections under the 
     Employee Polygraph Protection Act of 1988, page S263.
         (5) Regulation on rights and protections under the Worker 
     Adjustment and Retraining Notification Act, page S271.
  The SPEAKER pro tempore. The gentleman from California [Mr. Thomas] 
and the gentleman from California [Mr. Fazio] each will be recognized 
for 20 minutes.
  The Chair recognizes the gentleman from California [Mr. Thomas].
  Mr. THOMAS. Mr. Speaker, I yield such time as he may consume to the 
gentleman from Pennsylvania [Mr. Goodling], the chairman of the 
Committee on Economic and Educational Opportunities.
  (Mr. GOODLING asked and was given permission to revise and extend his 
remarks.)
  Mr. GOODLING. I thank the gentleman for yielding this time to me.
  Mr. Speaker, I rise in support of the resolution before us with 
regard to congressional coverage.
  While largely ministerial, they represent one more important step in 
bringing ourselves under the workplace laws we have long imposed, often 
too cavalierly in my view, on other employers.
  Let me just say that I still occasionally express some wonderment 
that this day is finally here. The Congressional Accountability Act 
regulations represent the culmination of a several-year process in the 
Opportunities Committee in which the now-majority party repeatedly 
attempted to extend the laws of the workplace to our own employees, 
with proper enforcement mechanisms including access to the courts with 
jury trials.
  Enactment of the Congressional Accountability Act, like the unfunded 
mandate legislation which was also enacted this Congress, has created a 
long-needed institutional brake--a yellow flag--on the passage of laws 
this institution too easily imposed in the past on all other workplaces 
while exempting itself. As importantly, the law finally extended the 
same workplace protections other workers have to our own employees. 
While these laws are not perfect there is no reason why our workers 
should be under different standards. And now that we are forced to 
comply with these laws, we will learn from experience and better 
identify with problems of compliance endured by our constituents. In 
fact, I can guarantee it. Proposals for future workplace requirements 
and reform of existing laws will gather a lot closer attention by every 
member of the Opportunities Committee and the House. And it's about 
time.
  True, the protections of some laws had been applied in the past to 
the House, but the protections were hollow because employees never had 
the same right to court enforcement that their counterparts in the 
private sector and the executive branch enjoyed. And there were no 
signs there would ever be such enforcement! Indeed, as recently as 1991 
when I had CRS do an analysis of the issue, we were still arguing over 
whether court enforcement posed constitutional concerns. Fortunately, 
that analysis, which found there were not significant concerns, growing 
public awareness over the double standard enjoyed by Congress, and, 
most importantly, the outcome of the last election, brought us here 
today. Yes, the issue is now bipartisan, and I am glad it is, but it is 
clear that real--truly effective--congressional coverage was the result 
of the last election. We've come a long way in a year's time.
  Indeed, the only shadow cast over today is that it took so long in 
coming. As I have noted in the past, the irony of Congress in exempting 
itself from the laws it imposed on others is so obvious that one 
wonders how it so long escaped criticism. But I am gratified that those 
of us who long fought for strong congressional coverage enforcement now 
have amply company.
  The first House resolution before us, House Resolution 400, simply 
provides for approval of the regulations issued by the Office of 
Compliance, including those under the Fair Labor Standards Act and the 
Family and Medical Leave Act, as applicable to House employees.
  After we proceed with this resolution, we will take up House 
Resolution 401 which provides for educational assistance by the Office 
of Compliance by employees who are not involved in deciding cases, and 
only to the same extent as such assistance is provided by the 
Department of Labor to the employers it regulates. The resolution also 
provides for a settlement procedure to ensure that taxpayer funds are 
protected from abuse.
  Last, we will take up Senate Concurrent Resolution 51, already passed 
by the Senate, applying the regulations issued by the Office of 
Compliance to certain of the so-called instrumentalities of the House 
and Senate. These are offices administered by both the House and the 
Senate--such as the Congressional Budget Office, the Architect of the 
Capitol, and the Capitol Police--and, therefore, have to be covered 
through a concurrent resolution.
  Mr. Speaker, I support these resolutions.
  Mr. THOMAS. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. THOMAS asked and was given permission to revise and extend his 
remarks.)
  Mr. THOMAS. Mr. Speaker, the Congressional Accountability Act--Public 
Law 104-1--became effective on January 23, 1996. This law created the 
Office of Compliance, an independent office within the legislative 
branch, which is responsible for educating Congressional offices on how 
to comply with the laws made applicable to the Congress, as well as for 
providing a procedure for resolution of employee grievances, and for 
adopting regulations to implement these laws. These regulations must be 
approved by the House.
  The Board of Directors of the Office of Compliance adopted 
regulations which were published in the Congressional Record on January 
22, 1996. In anticipation of these regulations, on December 19, 1995, 
the House agreed to House Resolution 31 and House Concurrent Resolution 
123, which provided for provisional approval of these regulations until 
the Committees of jurisdiction could review them and make a final 
recommendation to the House.

[[Page H3340]]

  On March 12, 1996, the Committee on House Oversight considered these 
regulations, and voted to recommend their approval to the House. The 
regulations were also considered by the Committee on Educational and 
Economic Opportunities, which has jurisdiction over most of the laws 
made applicable to Congress by the act. The two House Resolutions which 
will be considered by the House today are the product of consultation 
by the two committees.
  An issue addressed by the Committee on House Oversight at its March 
12, 1996 meeting was supporting of time off plans. Our research 
indicates that these plans are available to House employers in the same 
way they are available to employers in the private sector. Mr. Speaker, 
I ask unanimous consent to insert at this point in the Record a memo on 
this issue written by the American Law Division of the Congressional 
Research Service.
  In addition House Resolution 400 provides for approval of the 
regulations adopted by the Office of Compliance which are applicable to 
House employing offices and covered employees, as contemplated by 
section 304(c)(4) of the act.
  Mr. Speaker, I submit for the Record a memorandum from the American 
Law Division of the Congressional Research Service.
                                            American Law Division,


                               Congressional Research Service,

                                                   Washington, DC,
     Subject: Time-off Plans Under Fair Labor Standards Act 
         (FLSA).
     Author: Vince Treacy, Legislative Attorney.
       The Fair Labor Standards Act (FLSA) requires that employees 
     be paid one-and-one-half times their regular rate of pay for 
     each hour worked in excess of 40 hours in a workweek. 29 
     U.S.C. Sec. 207(a). Overtime compensation earned in a 
     particular workweek must be paid on the regular pay day for 
     the period in which such workweek ends. 29 C.F.R. 
     Sec. 778.106. The Congressional Accountability Act (CAA) made 
     the overtime provisions of the FLSA applicable to all 
     employing offices in the Legislative Branch. Public Law No. 
     104-1, Sec. 203(a)(3).
       Under a time-off plan, the employer may comply with the 
     FLSA and continue to pay a fixed wage or salary each pay 
     period, even though the employee works overtime in some other 
     week or weeks within the pay period. The employer lays off 
     the employee a sufficient number of hours during some other 
     week or weeks of the pay period, so that the desired wage or 
     salary for the pay period covers the total amount of 
     compensation, including overtime compensation, for each 
     workweek taken separately. The essential principle of the 
     time-off plan is the control of earnings by control of the 
     number of hours an employee is permitted to work.
       A time-off plan cannot be applied ``to a salaried employee 
     who is paid a fixed salary to cover all hours he may work in 
     any particular workweek or pay-period.'' U.S. Dep't of Labor, 
     Employment Standards Administration, The Time Off Plan. In 
     other words, a time-off practice cannot be applied to a 
     nonexempt salaried employee who is paid a fixed salary to 
     cover all hours, however few or many, that he may have worked 
     in a particular workweek. For example, if an employee was 
     hired to work for a salary of $400 per week to cover all 
     hours worked up to 40 in a week, then the employee would earn 
     the same $400 whether he worked 40, 30, 20, or no hours in a 
     week. This employee could not be compensated with time off 
     within another week in the pay period, since the employer 
     would have paid him for that time in any event. Since the 
     employee was already entitled to his salary for the short 
     workweek, the use of the hours under 40 as an offset against 
     overtime liability owed for a separate workweek would result 
     in a denial of the extra overtime compensation the employee 
     was entitled to under the FLSA.
       The Department of Labor expressly disapproved time-off 
     plans for workers with a guaranteed salary in Opinion Letter 
     of May 27, 1964. The employer wanted to guarantee certain 
     employees 40 hours of work or pay each week. Employees would 
     receive a minimum week's pay in any week even though they may 
     have worked fewer hours in the week. The proposed plan ``is 
     not a bona fide time-off plan in that the employee is 
     guaranteed a definite number of hours of work or the 
     equivalent in pay each workweek. The required control of 
     earnings through control of the number of hours an employee 
     is permitted to work in a pay period is lacking.''
       A similar problem would arise if an employee were expressly 
     hired to work 35 hours per week for a fixed salary of $350. 
     That employee could not be compensated with hours-off under 
     40 in a week, since those hours are unpaid under the 
     employment agreement. The time off for such an employee must 
     be subtracted from the 35 hours in the regular workweek. An 
     employee who worked 50 hours in one week could then be 
     compensated by receiving the full $350 salary for 20 hours of 
     work in the second week. In the second week, $200 would 
     represent compensation for the 20 hours actually worked, 
     while $150 would be cash compensation for the 10 hours of 
     overtime in the first week.
       A time-off plan allows an employer to control earnings by 
     controlling the number of hours worked. If the employee works 
     more than 40 hours in a workweek, the employee can be 
     required to take one-and-one-half hours off for each overtime 
     hour within the same pay period. This produces virtually the 
     same total earnings as if the employee had work only 40 hours 
     in each workweek in the pay period.
       Salaries status does not preclude the use of time-off plans 
     for nonexempt employees. Time-off plans are barred only when 
     the employee is guaranteed the salary regardless of the 
     number of hours actually worked. Salaried nonexempt employees 
     are customarily required to work a fixed number of hours for 
     their pay. Absences must be charged to leave banks for 
     vacation, sickness, or personal use. The actual salary is 
     reduced (``docked'') only when leave is denied or exhausted. 
     These salaried employees may be given time off with pay in 
     lieu of cash overtime, since the pay for the compensatory 
     time off represents pay they would not otherwise have 
     received.
       In the state and local public sector, compensatory time off 
     may be carried over to other pay periods, and can be 
     accumulated into banks of up to 240 hours, or 480 for public 
     safety employees. In the private sector, however, the 
     overtime hours cannot be accumulated and the time off cannot 
     be given in another pay period. This policy is based in part 
     on the possibility that the employer may go out of business, 
     or file for liquidation under the Bankruptcy Code, and 
     thereby eliminate employee overtime compensation entirely.
       The Congressional Accountability Act expressly adopted the 
     private sector policy, and prohibited the accumulation of 
     compensatory time. ``Except as provided in regulations under 
     subsection (c)(3), covered employees may not receive 
     compensatory time in lieu of overtime compensation.'' 
     Public Law No. 104-1, Sec. 203(a)(3).
       Time-off plans were approved by the Court in Dunlop v. 
     State of New Jersey: :``The restriction that time off for 
     overtime be granted within the same pay period as earned 
     mirrors the stricture placed upon monetary payments for 
     overtime.'' 522 F.2d 504, 510 (3d Cir. 1975), affirming 364 
     F.Supp. 156 (D.N.J. 1973), vacated on other grounds, 427 U.S. 
     909 (1976). Time-off plans have been approved by the Wage-
     Hour Administrator in Opinion Letters. DOL Opinion Letter No. 
     913 (Dec. 27, 1968), quoted with approval, 522 F.2d at 509-
     510, 364 F.Supp. at 158.
       The use of time-off plans was first suggested to the House 
     in 1990 by Betty Southard Murphy, an attorney who was a 
     former Wage and House Administrator at the Department of 
     Labor.
       Overtime compensation need not be paid as money wages. 
     Under proper and rigid circumstances, employees may receive 
     their overtime compensation as compensatory time off. Such 
     plans are only permitted as an alternative to overtime 
     payments if the time off is taken during the same pay period 
     in which the overtime is earned. Presentation by Betty 
     Southard Murphy Before the Administrative Assistants 
     Association, U.S. House of Representatives, Washington, DC, 
     Oct. 18, 1990 (emphasis in original).
       The time-off plan must meet three requirements. (1) The 
     employees must be either hourly or salaried; employees paid 
     by piecework, commission, or amount of production are 
     excluded. (2) The wage agreement must provide a fixed number 
     working hours per week; employees who work fluctuating hours 
     for a fixed salary do not qualify. (3) The pay period must be 
     either bi-weekly, semi-monthly; or monthly; the plan cannot 
     be applied to employees whose pay period is weekly.
       Furthermore, time-off plans require careful records, 
     because the employer may not at any time owe the employees 
     overtime compensation. Payroll records should clearly 
     indicate that the premium rate of one-and-one-half of the 
     regular rate of pay is paid for all overtime hours worked. 
     The employer must maintain an individual account for each 
     employee, with credit for the appropriate amount of time. 
     ``Overall, time-off plans are rarely used because they are 
     difficult to administer--the employer must anticipate 
     workload requirements in all weeks of the established pay 
     period.'' Betty Murphy, Guide to Wage and Hour Regulation at 
     46 (BNA, 1987).
       Under the Portal-to-Portal Act of 1947, an employer must 
     act ``in good faith in conformity with and in 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. 29 U.S.C. Sec. 259. The 
     Office of Compliance has ruled that the Portal-to-Portal Act 
     applies under the Congressional Accountability Act. 122 Cong. 
     Rec. S222 (daily ed., Jan. 22, 1996).
       The Office of Compliance has stated that ``[t]ime-off plans 
     are authorized under section 7(a) of the FLSA. See, e.g., 
     Wage and Hour Administrator Opinion Letter, issued 1950; Wage 
     and Hour Opinion Letter dated December 27, 1968. Thus, 
     employing offices are authorized to use such plans under 
     section 203 of the CAA.'' It would therefore appear that 
     employing offices may rely on the written opinions of the 
     Wage and Hour Administrator of DOL in adopting time-off 
     plans.
       In the House of Representatives, several provisions should 
     be noted. Title 2 of the U.S. Code provides that ``[n]o 
     person shall be paid from any clerk hire allowance if such 
     person does not perform services for which he receives such 
     compensation in the offices of such Member or Resident 
     Commissioner in

[[Page H3341]]

     Washington, District of Columbia, or in the State or the 
     district in which such Member or Resident Commissioner 
     represents.'' 2 U.S.C. Sec. 92-1.
       The Rules of the House of Representatives provides that a 
     Member or officer of the House ``shall retain no one under 
     his payroll authority who does not perform official duties 
     commensurate with the compensation received in the offices of 
     the employing authority.'' Rule XLIII, clause 8 (1995). The 
     Members' Congressional Handbook provides that ``Members may 
     not [emphasis in original] retain a Clerk Hire employee on 
     their payroll who does not perform official duties 
     commensurate with their compensation,'' and that ``Clerk Hire 
     employees must perform the duties for which they are 
     compensated within the Washington, D.C., or district 
     congressional office(s) of the Member.'' See section II.A, 
     clauses 2, 3, at page 5. Moreover, Title 31 of the U.S. Code 
     provides that ``[a]ppropriations shall be applied only to the 
     objects for which the appropriations were made except as 
     otherwise provided by law.'' 31 U.S.C. Sec. 1301(a).
       An employing office in the House of Representatives may 
     adopt a time-off plan. It is advisable that the plan be in 
     writing. The plan should note that its provisions revoke and 
     supersede all prior customs, practices and usages concerning 
     time and pay. The plan should stipulate that all covered 
     employees, whether salaried or hourly, are employed for a 
     fixed workweek, such as 40 hours per week. The plan should 
     also require that all hours be strictly accounted for, either 
     as hours worked or as hours charged to paid leave, such as 
     annual, sick, personal, holiday, emergency, or administrative 
     leave.

  Mr. Speaker, I reserve the balance of my time.
  Mr. FAZIO of California. Mr. Speaker, I yield myself such time as I 
may consume.
  Mr. Speaker, my friend from California, Chairman Thomas, has 
accurately described the purpose of the resolution. It simply approves 
the regulations issued by the Office of Compliance.
  Reforming employment practices in the House took bi-partisan effort. 
Members from both sides of the aisle were steadfast in the reform 
efforts, and we were able to work through all the obstacles and pass 
the law.
  I want to single out for praise the efforts to Chairman Thomas, 
Representative Shays, Representative Hoyer, and many other Members of 
this Congress, as well as Representative Swett in 103d Congress. They 
deserve recognition for their dedication to this reform.
  House Members of both parties overwhelmingly supported this bill, and 
individual Members should take credit for their part in it. Remember, 
the underlying purpose of this law--imposing the same sandards on the 
House as on the private sector--enjoyed the same strong bi-partisan 
support in this Congress that it enjoyed in the last Congress.
  I think we can be proud, individually and as an institution, that we 
have arrived at this point. Furthermore, as I have surveyed my 
colleagues, I find them universally supportive of the new law, and the 
workplace fairness which it brings to the House. There is a genuine 
desire to comply with the law, and Members seem eager for information 
to help them comply.
  Mr. Speaker, I have no further requests for time, and I yield back 
the balance of my time.
  Mr. THOMAS. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from California [Mr. Thomas] that the House suspend the rules 
and agree to the resolution, House Resolution 400.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the resolution was agreed to.
  A motion to reconsider was laid on the table.

                          ____________________