Congressional Record, Volume 157 Issue 53 (Tuesday, April 12, 2011)

[Congressional Record Volume 157, Number 53 (Tuesday, April 12, 2011)]
[Senate]
[Pages S2389-S2398]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. HARKIN (for himself, Mr. Leahy, Mr. Kerry, Mr. Akaka, Mrs.
Boxer, Mrs Murray, Mr. Lautenberg, and Mr. Merkley):
S. 788. A bill to amend the Fair Labor Standards Act of 1938 to
prohibit discrimination in the payment of wages on account of sex,
race, or national origin, and for other purposes; to the Committee on
Health, Education, Labor, and Pensions.
Mr. HARKIN. Mr. President, today Americans observe Equal Pay Day--the
date that marks the extra days that women must work into 2011 in order
to equal what men earned in 2010. On this day, I am proud to introduce
the Fair Pay Act of 2011, a bill I have introduced every Congress since
1996.
In 1963, Congress enacted the Equal Pay Act to end unfair
discrimination against women in the workforce. While we have made
progress toward this important goal, nearly half a century later, too
many women still do not get paid what men do for the same or nearly the
same work. On average, a woman makes only 77 cents for every dollar
that a man makes. That translates into an average of $400,000 over her
lifetime that a woman loses because of unequal pay practices. The
circumstances are even worse for Latinas and women of color.
This is wrong, it is unjust, and it threatens the economic security
of our families. The fact is millions of Americans are dependent on a
woman's pay-check just to get by, to put food on the table, pay for
child care, and deal with rising health care bills. Two-thirds of
mothers bring home at least a quarter of their family's earnings. In
many families, a woman is the sole breadwinner.
The evidence shows that discrimination accounts for much of the pay
gap, and our laws have not done enough to prevent this discrimination
from occurring. That is why passage of the Lilly Ledbetter Fair Pay Act
was a critical first step, and why it is important to pass the Paycheck
Fairness Act, introduced today by Senator Mikulski and Representative
DeLauro, of which I am a proud original cosponsor. There are too many
loopholes and barriers to effective enforcement of our existing laws.
We need to strengthen penalties and give women the tools they need to
confront discrimination.
At the same time, we must recognize that the problem of unequal pay
goes beyond insidious discrimination. As a nation, we unjustly devalue
jobs traditionally performed by women, even when they require
comparable skills to jobs traditionally performed by men.
Today, millions of female-dominated jobs--for example, social
workers, teachers, child care workers and nurses--are equivalent in
skills, effort, responsibility and working conditions to similar jobs
dominated by men. But, the female-dominated jobs pay significantly
less. This is inexplicable. Why is a housekeeper worth less than a
janitor? Why is a parking meter reader worth less than an electrical
meter reader? Why is a social worker worth less than a probation
officer?
To address this more subtle, deep-rooted discrimination, today I am
joining with Representative Eleanor Holmes Norton to introduce the Fair
Pay Act, which will ensure that employers provide equal pay for jobs
that are equivalent in skill, effort, responsibility and working
conditions.
This important legislation would also require employers to publicly
disclose their job categories and their pay scales, without requiring
specific information on individual employees. If we give women
information about what their male colleagues are earning, they can
negotiate a better deal for themselves in the workplace.
Right now, women who believe they are the victim of pay
discrimination must file a lawsuit and endure a drawn-out legal
discovery process to find out whether they make less than the man
working beside them. With pay statistics readily available, this
expensive process could be avoided.
The number of lawsuits would surely go down if employees could see up
front whether they are being treated fairly. In fact, I once asked
Lilly Ledbetter: if the Fair Pay Act had been law, would it have
averted her wage discrimination case? She said that with the
information about pay scales that the bill provides, she would have
known that she was a victim of discrimination and could have tried to
address the problem sooner, rather than suffering a lifelong drop in
her earnings and a trip all the way to the Supreme Court to try to make
things right.
On this Equal Pay Day, let us make sure that what happened to Lilly
never happens again by recommitting to eliminate discrimination in the
workplace and make equal pay for equal work a reality. America's
working women and the families that rely on them deserve fairness on
the job. Hopefully, soon, we can achieve true equality in the workplace
so there is no need to commemorate equal pay day any more.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

[[Page S2390]]

S. 788

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

(a) Short Title.--This Act may be cited as the ``Fair Pay
Act of 2011''.
(b) Reference.--Except as provided in section 8, whenever
in this Act an amendment or repeal is expressed in terms of
an amendment to, or repeal of, a section or other provision,
the reference shall be considered to be made to a section or
other provision of the Fair Labor Standards Act of 1938 (29
U.S.C. 201 et seq.).

SEC. 2. FINDINGS.

Congress finds the following:
(1) Wage rate differentials exist between equivalent jobs
segregated by sex, race, and national origin in Government
employment and in industries engaged in commerce or in the
production of goods for commerce.
(2) The existence of such wage rate differentials--
(A) depresses wages and living standards for employees
necessary for their health and efficiency;
(B) prevents the maximum utilization of the available labor
resources;
(C) tends to cause labor disputes, thereby burdening,
affecting, and obstructing commerce;
(D) burdens commerce and the free flow of goods in
commerce; and
(E) constitutes an unfair method of competition.
(3) Discrimination in hiring and promotion has played a
role in maintaining a segregated work force.
(4) Many women and people of color work in occupations
dominated by individuals of their same sex, race, and
national origin.
(5)(A) In 2009, a woman in the United States working in a
full-time, year-round job earned 77 cents for every dollar
earned by a man working in a full-time, year-round job.
(B) A 2007 study found that - even when accounting for key
factors generally known to influence earnings such as race,
educational attainment, and experience - nearly half (49.3
percent) of the pay gap can be explained by differences in
the industries and occupations that men and women work in,
and 41 percent of the pay gap cannot be accounted for but may
be partially explained by discrimination in the workplace.
(6) Section 6(d) of the Fair Labor Standards Act of 1938
prohibits discrimination in compensation for ``equal work''
on the basis of sex.
(7) Artificial barriers to the elimination of
discrimination in compensation based upon sex, race, and
national origin continue to exist more than 4 decades after
the passage of section 6(d) of the Fair Labor Standards Act
of 1938, the Equal Pay Act of 1963, and the Civil Rights Act
of 1964 (42 U.S.C. 2000a et seq.). Elimination of such
barriers would have positive effects, including--
(A) providing a solution to problems in the economy created
by discrimination through wage rate differentials;
(B) substantially reducing the number of working women and
people of color earning low wages, thereby reducing the
dependence on public assistance; and
(C) promoting stable families by enabling working family
members to earn a fair rate of pay.

SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

(a) Amendment.--Section 6 (29 U.S.C. 206) is amended by
adding at the end the following:
``(h)(1)(A) Except as provided in subparagraph (B), no
employer having employees subject to any provision of this
section shall discriminate, within any establishment in which
such employees are employed, between employees on the basis
of sex, race, or national origin by paying wages to employees
in such establishment in a job that is dominated by employees
of a particular sex, race, or national origin at a rate less
than the rate at which the employer pays wages to employees
in such establishment in another job that is dominated by
employees of the opposite sex or of a different race or
national origin, respectively, for work on equivalent jobs.
``(B) Nothing in subparagraph (A) shall prohibit the
payment of different wage rates to employees where such
payment is made pursuant to--
``(i) a seniority system;
``(ii) a merit system;
``(iii) a system that measures earnings by quantity or
quality of production; or
``(iv) a differential based on a bona fide factor other
than sex, race, or national origin, such as education,
training, or experience, except that this clause shall apply
only if--
``(I) the employer demonstrates that--
``(aa) such factor--

``(AA) is job-related with respect to the position in
question; or
``(BB) furthers a legitimate business purpose, except that
this item shall not apply if the employee demonstrates that
an alternative employment practice exists that would serve
the same business purpose without producing such differential
and that the employer has refused to adopt such alternative
practice; and

``(bb) such factor was actually applied and used reasonably
in light of the asserted justification; and
``(II) upon the employer succeeding under subclause (I),
the employee fails to demonstrate that the differential
produced by the reliance of the employer on such factor is
itself the result of discrimination on the basis of sex,
race, or national origin by the employer.
``(C) The Equal Employment Opportunity Commission shall
issue guidelines specifying criteria for determining whether
a job is dominated by employees of a particular sex, race, or
national origin for purposes of subparagraph (B)(iv). Such
guidelines shall not include a list of such jobs.
``(D) An employer who is paying a wage rate differential in
violation of subparagraph (A) shall not, in order to comply
with the provisions of such subparagraph, reduce the wage
rate of any employee.
``(2) No labor organization or its agents representing
employees of an employer having employees subject to any
provision of this section shall cause or attempt to cause
such an employer to discriminate against an employee in
violation of paragraph (1)(A).
``(3) For purposes of administration and enforcement of
this subsection, any amounts owing to any employee that have
been withheld in violation of paragraph (1)(A) shall be
deemed to be unpaid minimum wages or unpaid overtime
compensation under this section or section 7.
``(4) In this subsection:
``(A) The term `labor organization' means any organization
of any kind, or any agency or employee representation
committee or plan, in which employees participate and that
exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work.
``(B) The term `equivalent jobs' means jobs that may be
dissimilar, but whose requirements are equivalent, when
viewed as a composite of skills, effort, responsibility, and
working conditions.''.
(b) Conforming Amendment.--Section 13(a) (29 U.S.C. 213(a))
is amended in the matter before paragraph (1) by striking
``section 6(d)'' and inserting ``sections 6 (d) and (h)''.

SEC. 4. PROHIBITED ACTS.

Section 15(a) (29 U.S.C. 215(a)) is amended--
(1) by striking the period at the end of paragraph (5) and
inserting a semicolon; and
(2) by adding after paragraph (5) the following:
``(6) to discriminate against any individual because such
individual has opposed any act or practice made unlawful by
section 6(h) or because such individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing to enforce section
6(h); or
``(7) to discharge or in any other manner discriminate
against, coerce, intimidate, threaten, or interfere with any
employee or any other person because the employee inquired
about, disclosed, compared, or otherwise discussed the
employee's wages or the wages of any other employee, or
because the employee exercised, enjoyed, aided, or encouraged
any other person to exercise or enjoy any right granted or
protected by section 6(h).''.

SEC. 5. REMEDIES.

(a) Enhanced Penalties.--Section 16(b) (29 U.S.C. 216(b))
is amended--
(1) by inserting after the first sentence the following:
``Any employer who violates subsection (d) or (h) of section
6 shall additionally be liable for such compensatory or
punitive damages as may be appropriate, except that the
United States shall not be liable for punitive damages.'';
(2) in the sentence beginning ``An action to'', by striking
``either of the preceding sentences'' and inserting ``any of
the preceding sentences of this subsection'';
(3) in the sentence beginning ``No employees'', by striking
``No employees'' and inserting ``Except with respect to class
actions brought under subsection (f), no employee'';
(4) in the sentence beginning ``The court in'', by striking
``in such action'' and inserting ``in any action brought to
recover the liability prescribed in any of the preceding
sentences of this subsection''; and
(5) by striking ``section 15(a)(3)'' each place it occurs
and inserting ``paragraphs (3), (6), and (7) of section
15(a)''.
(b) Action by Secretary.--Section 16(c) (29 U.S.C. 216(c))
is amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation of
subsection (d) or (h) of section 6, additional compensatory
or punitive damages,'' before ``and the agreement''; and
(B) by inserting before the period the following: ``, or
such compensatory or punitive damages, as appropriate'';
(2) in the second sentence, by inserting before the period
the following: ``and, in the case of a violation of
subsection (d) or (h) of section 6, additional compensatory
or punitive damages''; and
(3) in the third sentence, by striking ``the first
sentence'' and inserting ``the first or second sentence''.
(c) Fees.--Section 16 (29 U.S.C. 216) is amended by adding
at the end the following:
``(f) In any action brought under this section for a
violation of section 6(h), the court shall, in addition to
any other remedies awarded to the prevailing plaintiff or
plaintiffs, allow expert fees as part of the costs. Any such
action may be maintained as a class action as provided by the
Federal Rules of Civil Procedure.''.

SEC. 6. RECORDS.

(a) Records.--Section 11(c) (29 U.S.C. 211(c)) is amended--
(1) by inserting ``(1)'' after ``(c)''; and
(2) by adding at the end the following:
``(2) Every employer subject to section 6(h) shall preserve
records that document and

[[Page S2391]]

support the method, system, calculations, and other bases
used by the employer in establishing, adjusting, and
determining the wage rates paid to the employees of the
employer. Every employer subject to section 6(h) shall
preserve such records for such periods of time, and shall
make such reports from the records to the Equal Employment
Opportunity Commission, as shall be prescribed by the Equal
Employment Opportunity Commission by regulation or order as
necessary or appropriate for the enforcement of the
provisions of section 6(h) or any regulation promulgated
pursuant to section 6(h).''.
(b) Small Business Exemptions.--Section 11(c) (as amended
by subsection (a)) is further amended by adding at the end
the following:
``(3) Every employer subject to section 6(h) that has 25 or
more employees on any date during the first or second year
after the effective date of this paragraph, or 15 or more
employees on any date during any subsequent year after such
second year, shall, in accordance with regulations
promulgated by the Equal Employment Opportunity Commission
under paragraph (8), prepare and submit to the Equal
Employment Opportunity Commission for the year involved a
report signed by the president, treasurer, or corresponding
principal officer, of the employer that includes information
that discloses the wage rates paid to employees of the
employer in each classification, position, or job title, or
to employees in other wage groups employed by the employer,
including information with respect to the sex, race, and
national origin of employees at each wage rate in each
classification, position, job title, or other wage group.''.
(c) Protection of Confidentiality.--Section 11(c) (as
amended by subsections (a) and (b)) is further amended by
adding at the end the following:
``(4) The rules and regulations promulgated by the Equal
Employment Opportunity Commission under paragraph (8),
relating to the form of such a report, shall include
requirements to protect the confidentiality of employees,
including a requirement that the report shall not contain the
name of any individual employee.''.
(d) Use; Inspections; Examination; Regulations.--Section
11(c) (as amended by subsections (a) through (c)) is further
amended by adding at the end the following:
``(5) The Equal Employment Opportunity Commission may
publish any information and data that the Equal Employment
Opportunity Commission obtains pursuant to the provisions of
paragraph (3). The Equal Employment Opportunity Commission
may use the information and data for statistical and research
purposes, and compile and publish such studies, analyses,
reports, and surveys based on the information and data as the
Equal Employment Opportunity Commission may consider
appropriate.
``(6) In order to carry out the purposes of this Act, the
Equal Employment Opportunity Commission shall by regulation
make reasonable provision for the inspection and examination
by any person of the information and data contained in any
report submitted to the Equal Employment Opportunity
Commission pursuant to paragraph (3).
``(7) The Equal Employment Opportunity Commission shall by
regulation provide for the furnishing of copies of reports
submitted to the Equal Employment Opportunity Commission
pursuant to paragraph (3) to any person upon payment of a
charge based upon the cost of the service.
``(8) The Equal Employment Opportunity Commission shall
issue rules and regulations prescribing the form and content
of reports required to be submitted under paragraph (3) and
such other reasonable rules and regulations as the Equal
Employment Opportunity Commission may find necessary to
prevent the circumvention or evasion of such reporting
requirements. In exercising the authority of the Equal
Employment Opportunity Commission under paragraph (3), the
Equal Employment Opportunity Commission may prescribe by
general rule simplified reports for employers for whom the
Equal Employment Opportunity Commission finds that because of
the size of the employers a detailed report would be unduly
burdensome.''.

SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE
PROGRAM; REPORT TO CONGRESS.

Section 4(d) (29 U.S.C. 204(d)) is amended by adding at the
end the following:
``(4) The Equal Employment Opportunity Commission shall
conduct studies and provide information and technical
assistance to employers, labor organizations, and the general
public concerning effective means available to implement the
provisions of section 6(h) prohibiting wage rate
discrimination between employees performing work in
equivalent jobs on the basis of sex, race, or national
origin. Such studies, information, and technical assistance
shall be based on and include reference to the objectives of
such section to eliminate such discrimination. In order to
achieve the objectives of such section, the Equal Employment
Opportunity Commission shall carry on a continuing program of
research, education, and technical assistance including--
``(A) conducting and promoting research with the intent of
developing means to expeditiously correct the wage rate
differentials described in section 6(h);
``(B) publishing and otherwise making available to
employers, labor organizations, professional associations,
educational institutions, the various media of communication,
and the general public the findings of studies and other
materials for promoting compliance with section 6(h);
``(C) sponsoring and assisting State and community
informational and educational programs; and
``(D) providing technical assistance to employers, labor
organizations, professional associations and other interested
persons on means of achieving and maintaining compliance with
the provisions of section 6(h).
``(5) The report submitted biennially by the Secretary to
Congress under paragraph (1) shall include a separate
evaluation and appraisal regarding the implementation of
section 6(h).''.

SEC. 8. CONFORMING AMENDMENTS.

(a) Congressional Employees.--
(1) Application.--Section 203(a)(1) of the Congressional
Accountability Act of 1995 (2 U.S.C. 1313(a)(1)) is amended--
(A) by striking ``subsections (a)(1) and (d) of section 6''
and inserting ``subsections (a)(1), (d), and (h) of section
6''; and
(B) by striking ``206 (a)(1) and (d)'' and inserting ``206
(a)(1), (d), and (h)''.
(2) Remedies.--Section 203(b) of such Act (2 U.S.C.
1313(b)) is amended by inserting before the period the
following: ``or, in an appropriate case, under section 16(f)
of such Act (29 U.S.C. 216(f))''.
(b) Executive Branch Employees.--
(1) Application.--Section 413(a)(1) of title 3, United
States Code, as added by section 2(a) of the Presidential and
Executive Office Accountability Act (Public Law 104-331; 110
Stat. 4053), is amended by striking ``subsections (a)(1) and
(d) of section 6'' and inserting ``subsections (a)(1), (d),
and (h) of section 6''.
(2) Remedies.--Section 413(b) of such title is amended by
inserting before the period the following: ``or, in an
appropriate case, under section 16(f) of such Act''.

SEC. 9. EFFECTIVE DATE.

The amendments made by this Act shall take effect 1 year
after the date of enactment of this Act.
______

By Mr. AKAKA:
S. 790. A bill to provide for mandatory training for Federal
Government supervisors and the assessment of management competencies;
to the Committee on Homeland Security and Governmental Affairs.
Mr. AKAKA. Mr. President, I rise today to reintroduce the Federal
Supervisor Training Act.
Properly trained supervisors are critical to the federal government's
ability to efficiently and effectively provide essential services to
the American people. First-level supervisors have close contact and
frequent interaction with our Federal employees and thus have the most
significant impact on employee performance.
Investing in first-level supervision could yield enormous positive
returns. Research has shown that supervisory skills strongly predict
agency performance and that improving the quality of first-level
supervision is one of the most effective ways to improve an agency's
performance. According to a 2010 Merit Systems Protection Board report
entitled ``A Call to Action: Improving First-Level Supervision of
Federal Employees,'' the fastest and most direct way to strengthen
Federal workforce performance is to improve the supervision employees
receive.
For managers and supervisors in the Federal Government, few things
are more important than training. Supervisor training programs improve
communication, promote stronger manager-employee relationships, reduce
conflict, and cultivate efficiency.
Conversely, poor supervision can damage agency performance and
employee morale, which undermines agency performance and wastes money.
The National Academy of Public Administration reported that while it is
difficult to quantify the precise cost of supervisory deficiencies,
even a small deficiency could result in a loss of billions of dollars,
and that without solid programs for developing first level supervisors,
agencies pay an enormous price. Simply stated, investing in supervisory
training in the Federal Government now will save us money later.
The need for effective supervisor training is becoming even more
pressing given the large number of Federal employees who are expected
to retire in the next few years. The Office of Personnel Management
estimates that by the year 2014, approximately 53 percent of permanent
full-time Federal employees will be eligible to retire, and the
majority of those eligible will retire. Because supervisors tend to be
older and have more years of service than non-supervisors, supervisors
are likely to retire at faster rates than non-supervisors. In light of
the expected retirement wave, training a new

[[Page S2392]]

generation of federal supervisors is a matter of national urgency.
The Federal Supervisor Training Act will require that new supervisors
receive training on specified topics, including whistleblower and anti-
discrimination rights, during their initial 12 months on the job,
unless the Office of Personnel Management grants an extension to their
employing agency. Supervisors will be required to update their training
once every three years. Current supervisors will have three years to
obtain their initial training. This bill will also require agencies to
implement a program whereby experienced supervisors mentor new
supervisors.
In addition, the Federal Supervisor Training Act will require the
Office of Personnel Management to issue guidance to agencies on
competencies supervisors are expected to meet in order to effectively
supervise employees. Based on this guidance, or any additional
competencies established by employing agencies, each agency will be
required to assess the performance of its supervisors.
This bill builds upon supervisor training requirements under the
Federal Workforce Flexibility Act of 2004, which directs agencies to
establish training programs that develop supervisors, and to establish
programs to provide additional training to supervisors in three areas--
dealing with poor performers, mentoring employees and improving their
performance, and conducting performance appraisals.
I am delighted that this bill has received support from the
Government Managers Coalition, which represents members of the Senior
Executives Association, the Federal Managers Association, the
Professional Managers Association, the Federal Aviation Administration
Managers Association, and the National Council of Social Security
Management Associations. Additionally, it is supported by some of the
largest federal sector labor organizations, including the American
Federation of Government Employees, the National Treasury Employees
Union, the National Federation of Federal Employees, and the
International Federation of Professional and Technical Engineers.
Finally, this bill is supported by the Partnership for Public Service,
a non-profit, non-partisan organization which works to find ways to
improve the government's ability to provide services to citizens. I
believe the broad support from management associations, labor
organizations, and outside good government groups demonstrates the need
for this bill.
I urge my colleagues to support this important legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 790

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Federal Supervisor Training
Act of 2011''.

SEC. 2. MANDATORY TRAINING PROGRAMS FOR SUPERVISORS.

(a) In General.--Section 4121 of title 5, United States
Code, is amended--
(1) by inserting before ``In consultation with'' the
following:
``(a) In this section, the term `supervisor' means--
``(1) a supervisor as defined under section 7103(a)(10);
``(2) a management official as defined under section
7103(a)(11); and
``(3) any other employee as the Director of the Office of
Personnel Management may by regulation prescribe.'';
(2) by striking ``In consultation with'' and inserting
``(b) Under operating competencies prescribed by, and in
consultation with,''; and
(3) by striking paragraph (2) (of the matter redesignated
as subsection (b) as a result of the amendment under
paragraph (2) of this subsection) and inserting the
following:
``(2)(A) a program to provide training to supervisors on
actions, options, and strategies a supervisor may use in--
``(i) developing and discussing relevant goals and
objectives together with the employee, communicating and
discussing progress relative to performance goals and
objectives and conducting performance appraisals;
``(ii) mentoring and motivating employees and improving
employee performance and productivity;
``(iii) fostering a work environment characterized by
fairness, respect, equal opportunity, and attention paid to
the merit of the work of employees;
``(iv) effectively managing employees with unacceptable
performance;
``(v) addressing reports of a hostile work environment,
reprisal, or harassment of, or by, another supervisor or
employee;
``(vi) meeting supervisor competencies established by the
Office of Personnel Management or the employing agency of the
supervisor; and
``(vii) otherwise carrying out the duties or
responsibilities of a supervisor;
``(B) a program to provide training to supervisors on the
prohibited personnel practices under section 2302
(particularly with respect to such practices described under
subsection (b) (1) and (8) of that section), employee
collective bargaining and union participation rights, and the
procedures and processes used to enforce employee rights; and
``(C) a program under which experienced supervisors mentor
new supervisors by--
``(i) transferring knowledge and advice in areas such as
communication, critical thinking, responsibility,
flexibility, motivating employees, teamwork, leadership, and
professional development; and
``(ii) pointing out strengths and areas for development.
``(c) Training in programs established under subsection
(b)(2) (A) and (B) shall be--
``(1) interactive training which may include computer-based
training; and
``(2) to the extent practicable as determined by the head
of the agency, training that is instructor-based.
``(d)(1)(A) Not later than 1 year after the date on which
an individual is appointed to the position of supervisor,
that individual shall be required to have completed each
program established under subsection (b)(2).
``(B) The Director of the Office of Personnel Management
may establish and administer procedures under which the head
of an agency may extend the 1-year period described under
subparagraph (A) with respect to an individual.
``(2) After completion of a program under subsection (b)(2)
(A) and (B), each supervisor shall be required to complete a
program under subsection (b)(2) (A) and (B) at least once
every 3 years.
``(3) Each program established under subsection (b)(2)
shall include provisions under which credit shall be given
for periods of similar training previously completed.
``(4) Each agency shall measure the effectiveness of
training programs established under subsection (b)(2).
``(e) Notwithstanding section 4118(c), the Director of the
Office of Personnel Management shall prescribe regulations to
carry out this section, including the monitoring of agency
compliance with this section. Regulations prescribed under
this subsection shall include measures by which to assess the
effectiveness of agency supervisor training programs.''.
(b) Report on Extensions for Training Requirements.--
(1) Appropriate congressional committees.--In this
subsection, the term ``appropriate congressional committees''
means--
(A) the Committee on Homeland Security and Governmental
Affairs of the Senate; and
(B) the Committee on Oversight and Government Reform of the
House of Representatives.
(2) Report.--Not later than 2 years after the date of
enactment of this Act and annually thereafter, the Director
of the Office of Personnel Management shall submit a report
with respect to the preceding fiscal year to the appropriate
congressional committees on--
(A) the number of extensions granted under section
4121(d)(1)(B) of title 5, United States Code, as added by
subsection (a) of this section; and
(B) the number of individuals completing the requirements
of section 4121(d)(1)(A) of title 5, United States Code, as
added by subsection (a) of this section.
(c) Regulations.--Not later than 1 year after the date of
enactment of this Act, the Director of the Office of
Personnel Management shall prescribe regulations under
section 4121(e) of title 5, United States Code, as added by
subsection (a) of this section.
(d) Effective Date and Application.--
(1) In general.--The amendments made by this section shall
take effect 1 year after the date of enactment of this Act
and apply to--
(A) each individual appointed to the position of a
supervisor, as defined under section 4121(a) of title 5,
United States Code (as added by subsection (a) of this
section), on or after that effective date; and
(B) each individual who is employed in the position of a
supervisor on that effective date as provided under paragraph
(2).
(2) Supervisors on effective date.--Each individual who is
employed in the position of a supervisor on the effective
date of this section and is not subject to an extension under
section 4121(d)(1)(B) of title 5, United States Code (as
added by subsection (a) of this section) shall be required
to--
(A) complete each program established under section
4121(b)(2) of title 5, United States Code (as added by
subsection (a) of this section), not later than 3 years after
the effective date of this section; and
(B) complete programs every 3 years thereafter in
accordance with section 4121(d) (2) and (3) of that title (as
added by subsection (a) of this section).

SEC. 3. MANAGEMENT COMPETENCIES.

(a) In General.--Chapter 43 of title 5, United States Code,
is amended--

[[Page S2393]]

(1) by redesignating section 4305 as section 4306; and
(2) inserting after section 4304 the following:

``Sec. 4305. Management competencies

``(a) In this section, the term `supervisor' means--
``(1) a supervisor as defined under section 7103(a)(10);
``(2) a management official as defined under section
7103(a)(11); and
``(3) any other employee as the Director of the Office of
Personnel Management may by regulation prescribe.
``(b) The Director of the Office of Personnel Management
shall issue guidance to agencies on competencies supervisors
are expected to meet in order to effectively manage, and be
accountable for managing, the performance of employees.
``(c) Based on guidance issued under subsection (b) and on
any additional competencies developed by an agency, each
agency shall assess the performance of the supervisors and
the overall capacity of the supervisors in that agency.
``(d) Every year, or on any basis requested by the Director
of the Office of Personnel Management, each agency shall
submit a report to the Office of Personnel Management on the
progress of the agency in implementing this section,
including measures used to assess program effectiveness.''.
(b) Technical and Conforming Amendments.--
(1) Table of sections.--The table of sections for chapter
43 of title 5, United States Code, is amended by striking the
item relating to section 4305 and inserting the following:

``4305. Management competencies.
``4306. Regulations.''.

(2) Reference.--Section 4304(b)(3) of title 5, United
States Code, is amended by striking ``section 4305'' and
inserting ``section 4306''.
______

By Mr. UDALL of New Mexico (for himself, Mr. Bingaman, Mr.
Bennet, Mr. Crapo, Mr. Udall of Colorado, and Mr. Risch):
S. 791. A bill to amend the Radiation Exposure Compensation Act to
improve compensation for workers involved in uranium mining, and for
other purposes; to the Committee on the Judiciary.
Mr. UDALL of New Mexico. Mr. President, I rise today to introduce the
Radiation Exposure Compensation Act Amendments of 2011. The Radiation
Exposure Compensation Act, known as RECA, was first passed in 1990
after years of work and litigation. The act was later improved in 2000
through amendments made by Congress, and today I am joined by my
colleagues, Senators Bingaman, Bennet, Crapo, Mark Udall, and Risch, to
once again improve the act through introduction of this legislation.
This bill honors the individuals who unwittingly gave their health
and even their lives to national efforts to develop uranium and a Cold
War nuclear arsenal during the mid-20th century. Some Americans were
sickened through exposure to aboveground atomic weapons tests, and
others were exposed to heavy doses of radiation from working in the
uranium mining industry. All the while, the government was slow to
implement Federal protections. As a result, a generation of Americans
who worked in the mines and lived near testing sites became sick with
serious diseases like lung cancer and kidney disease.
Much of the United States' uranium development and weapons testing
occurred in New Mexico and the West. Mines and mills drew workers into
rural communities. These workers, and much of the country, were unaware
of the dangers of radiation exposure. As mining and milling continued
and our national understanding of the dangers of radiation exposure
developed, the Federal Government continued to fail to ensure that
uranium workers and their families were safe from the hazards of
exposure to radioactive materials. As a result, numerous illnesses and
cancers began to emerge in the men and women who worked in the uranium
mining industry and lived downwind of weapons testing sites.
In my home State of New Mexico, the Pueblo of Laguna was home to the
nation's largest open pit uranium mine. Additionally, many large and
small mines and mill sites were opened within the Navajo Nation. In
fact, much of the State's northwestern area is spackled with hundreds
of abandoned uranium mines. Workers from across the State came to these
mines and mills, especially from the economically struggling
communities of rural New Mexico.
In the late '70s, my father, Stewart Udall, took up the fight for
these workers. In 1979, my father filed 32 claims against the
Department of Energy on behalf of widows of deceased Navajo uranium
miners. In many ways, this marked the beginning of the fight for
compensation for all uranium workers. I remember working those years
with my whole family to collect information and push for recognition.
It was a family effort to fight injustice, and for me, it continues to
be a family priority. Ten years later, the original RECA legislation
was passed in the United States Congress, giving a level of restitution
to sick miners and millers, as well as individuals downwind of nuclear
tests. The RECA legislation was later expanded upon through an
amendment adopted in 2000.

The legislation we introduce today takes the next step to address the
remaining shortfalls of the Radiation Exposure Compensation Act.
Specifically, the bill would include post-1971 uranium workers as
qualified claimants. While the Federal Government ceased purchase of
domestic uranium in 1971, implementation of Federal work safety
standards was slow and regulation of mines was poor. As a result,
thousands of miners and millers were never made aware of the dangers of
the yellow cake they handled on a regular basis. In recently conducted
surveys, the majority of uranium workers from this time period report
that they did not have showers or washbasins in the mines where they
worked. They often took contaminated clothing home for laundering,
unaware of the hazards and with no other option for cleaning. Many also
report that ventilation to prevent unnecessary exposure was not
provided in their work areas.
Today, these workers continue to suffer and die from illnesses
related to radiation exposure. But because their employment dates began
after 1971, the cut-off included in the original RECA legislation, they
have no opportunity for compensation. Our bill changes that. If the
measure passes, individuals working between 1971 and 1990 will qualify
to claim compensation for exposure-related diseases.
The bill we're introducing today would also expand the geographic
areas that qualify for downwind compensation to include New Mexico,
Idaho, Montana, Colorado, and Guam. And for the first time, the bill
recognizes downwind exposure from the original atomic weapons test
site--the Trinity Site in New Mexico.
Those exposed as a result of aboveground weapons tests would receive
increased compensation as a result of passage of the bill being
introduced today. This would make their compensation consistent with
their counterparts who worked in mines and mills.
Comprehensive epidemiological research on the impacts of uranium
development on communities and families of uranium workers is long
overdue. Our legislation would authorize funding for the National
Institute of Environmental Health Sciences to award grants to
universities and non-profits to carry out such research.
Many who have suffered as a result of cold war uranium and weapons
development do not have the documentation to prove their exposure.
Often, mines and mills did not keep proper documentation of their
workers, and many communities impacted do not have a tradition of
keeping birth and marriage certification. The RECA Amendments of 2011
would broaden the use of affidavits to substantiate employment history
and residence in an affected downwind area.
Employees would also be able to combine their time worked in multiple
positions to meet the work-time requirements for compensation in the
original RECA legislation if today's legislation is adopted.
Finally, this legislation would allow miners to be compensated for
kidney disease. And it would allow core drillers to join miners,
millers, and ore transporters on the current list of uranium workers
who qualify for compensation under the Act.
For more than two decades now, the United States has tried to
compensate in some way for the sickness and loss of life that came as a
result of cold war era uranium and weapons development. Much has been
accomplished, but today we are taking the next step to close

[[Page S2394]]

this sad chapter in history and to improve the reach of compassionate
compensation to those Americans who have suffered, but have not
qualified under RECA in its current form.
Thousands continue to suffer from deadly illnesses as a result of
radiation exposure, but many do not qualify for compensation because
they began employment after 1971, or because they worked for a short
time in several different mines and mills. Others qualify for a level
of compensation, but still struggle to pay the expensive medical bills
associated with their illnesses.
I look forward to working with my colleagues to recognize these
individuals and expand RECA to include all who are justified in
receiving radiation exposure compensation, and I urge the Judiciary
Committee, the committee of jurisdiction, to expedite hearing on this
important piece of legislation.
______

By Mr. PRYOR:
S. 792. A bill to authorize the waiver of certain debts relating to
assistance provided to individuals and households since 2005; to the
Committee on Homeland Security and Governmental Affairs.
Mr. PRYOR. Mr. President, I want to talk just for a few minutes about
an incident that is unfolding in Arkansas, and that I am sure is
unfolding in other States as well.
Less than 2 weeks ago, a 73-year-old woman and her husband received a
letter from FEMA, where FEMA demanded that this couple pay back $27,000
in FEMA assistance they had received 3 years earlier, and that they do
so within 30 days or face penalties, interest, et cetera. Well, this
was devastating news for her. These are Social Security recipients.
They lost everything in a flood.
But let me back up and tell the full story, and then tell the rest of
the story. Three years ago, Arkansas had some floods on the White
River, and the folks in the Mountain View area, some of them,
experienced very severe flooding. FEMA actually came to this couple's
house, walked around, and told them on the spot they were eligible to
receive FEMA assistance for the flooding. The maximum you can receive
is $30,000. So they filled out the paperwork.
In fact, FEMA helped them do some of that, like I said, on the spot,
while FEMA was visiting their home and looking at their property. FEMA
assured her they would qualify for this assistance. So they filled out
the paperwork and they went through the process.
Apparently, at some point, there was even an appeal or some sort of
clarification. So it went through the proper channels at FEMA.
Remember, FEMA was there, they took pictures, and the whole deal. They
verified the damage. So this couple received $27,000 in FEMA
assistance.
They put every dime back into their home. This is a couple who
basically lost almost all their worldly possessions in this flood. I
talked to her a week or so ago, and she told me they were able to save
a few items of glassware and a few keepsakes from the family, but
basically everything was either washed away in the water or so caked
with mud it was ruined during the flood. The $27,000 helped repair
their home and make it habitable, but it didn't restore their home
anywhere close to the condition it was before the flood. This was their
dream home--their retirement home. They live right there on the White
River. It is a beautiful part of the State.
So they got this letter a couple of weeks ago. Now, bear in mind this
flood happened 3 years ago--the flood happened 3 years ago--and they
are now required, under the rules and regs and the law that FEMA works
with, to pay all this money back. As I said before, this is a terrible
hardship.
As it turns out, what happened is these folks, although they were
assured by FEMA they were eligible, they were actually never qualified
to receive this money. They didn't know that. They had FEMA in their
living room telling them they were qualified and they should receive
the money; that they met all the tests and standards and that is what
this program was for, to help people like them. However, there was one
technicality, and that was that the county in which they lived had not
passed an ordinance to go into the FEMA flood insurance program. Here,
again, FEMA should have known this.
FEMA apparently went to some of the county meetings where it was
discussed and voted down. But, nonetheless, FEMA assured these people
they would be covered under this program.
The irony of all this is that the couple, when they bought their home
on the White River, one of the preconditions or requirements they set
for themselves was they would purchase flood insurance. They had it for
a number of years. They paid premiums for a number of years. They never
experienced a flood, but they paid premiums for a number of years.
Finally, the insurance company that offered the flood insurance got
out of the business, and so they even went to the extent of going
through Lloyds of London to get flood insurance. They paid a lot of
money for a premium, but they, nonetheless, carried that as long as it
was offered. Finally, it wasn't offered any longer, and the only thing
left was the FEMA National Flood Insurance Program. But because the
county had not done what they were supposed to do, this couple,
therefore, was not eligible to receive the FEMA flood money--again, no
fault of their own. They had done everything anybody could do. They had
paid their premiums out of their pockets as long as they could, as long
as they could find insurance, and as that was canceled over the years,
the county hadn't come through. But, apparently, FEMA was actually
there at the county meetings and knew, or should have known, this
couple wasn't eligible. Yet they gave her this money, and now they want
it all back with penalties and interest, et cetera.
So I have filed the Disaster Assistance Recoupment Fairness Act, and
we actually have it in two forms. We have it as a stand-alone measure,
and we also have it as an amendment to the bill that is pending on the
floor right now.
The important point of this story is that all of the mistakes that
were made were on FEMA's side of the equation. The couple in Arkansas
made no mistakes. They followed the rules, went through the process,
went through the hearings. There is no allegation of fraud or that the
couple in any way misled anyone. They gave them the documents and did
everything they were supposed to do. It was textbook. They did
everything they were supposed to do, but FEMA is now coming back and
asking for recoupment.
So our bill will not give a blanket exception, but what it will do is
give the FEMA Administrator the authority, under circumstances he deems
fit, to waive the debt that is owed to the United States in cases where
funds were distributed by a FEMA error, as in this case. Also, it gives
them the discretion that they do not have under current Federal law.

I met with Director Fugate on this a week or two ago, and actually we
had a very constructive meeting. I think probably on a personal level
he understands this. He feels bad about this. But he believes his hands
are tied under the statute. I am not 100 percent sure they are but he
says they are. He tried to be very helpful, very accommodating. I think
he does want to work with all the parties involved to try to clean this
up. But he says he does not have the authority.
That is where this bill comes in. We wish to give the FEMA Director
the authority to have some discretion on some of these hardship type
cases, especially where the person who received the benefit did it
purely by a FEMA error. Again, in their case, they put every dime of
their recovery back into their home to have it livable. Otherwise they
probably would have had to abandon their home or sell the property or
whatever the case may have been.
That is what we are asking of the Senate, if they would consider this
at the proper time. I ask my colleagues to take a look at it. My guess
is, since we have 35 households in our State that are receiving these
types of letters from FEMA, these demand letters where they are giving
a notice of debt to folks who have received money, my guess is if we
have 35 in our State there are hundreds and maybe thousands around the
country in a similar situation.
Again, our bill is just for FEMA's mistakes. This is probably an
example

[[Page S2395]]

of the cleanup from the previous FEMA administration. I think Director
Fugate had nothing to do with this. It took them 3 years because there
was a lawsuit in the meantime.
What this is doing is creating a hardship for folks who had been
playing by the rules. It gives FEMA the flexibility to do some of the
cleanup in a way that doesn't harm ordinary citizens here in the United
States. I ask my colleagues to take a look at it. I would be pleased to
answer any questions. If anyone has those, they can always contact me
in my office. What I wish to do is not call it up at this point or
anything like that but maybe be in the queue and be available at
sometime in the future.
______

By Mr. LEAHY (for himself and Mr. Whitehouse):
S. 794. A bill to amend the Internal Revenue Code of 1986 to disallow
any deduction for punitive damages, and for other purposes; to the
Committee on Finance.
Mr. LEAHY. Mr. President, today I am introducing legislation that
will stop businesses from deducting costs that result from their
misconduct as a cost of doing business under our tax laws. Under
current law, a corporation or individual business owner may deduct the
cost of a punitive damage award paid to a victim as an ``ordinary''
business expense. This is wrong. It undermines one of the primary
deterrent functions of our civil justice system, and American taxpayers
should not subsidize this misconduct.
Punitive damage awards serve in part to correct dangerous or unfair
practices. These awards are reserved for the most extreme and harmful
misconduct. Our legal history contains prominent examples of corporate
misconduct that resulted in the deaths of Americans, and by virtue of
our civil justice system was not only punished, but led to broad
changes to improve the safety and security of American consumers. The
justice system has and will continue to encourage the positive changes
that cannot be brought about by regulation alone. But our current tax
laws work against the well-established role of the justice system as a
backstop to health and safety regulation.
One year ago, the Deepwater Horizon drilling rig exploded, killing 11
Americans and leading to the worst oil spill in American history. Just
over a year ago, an explosion in the Upper Big Branch Mine in West
Virginia claimed the lives of 29 miners. In both of these cases, I
expect that all Americans, and particularly the family members of the
victims, would be shocked to learn that any punitive damages that may
result from these events will amount to a tax break for the
corporations responsible.
I was disgusted to learn that Transocean, the owner of the Deepwater
Horizon, recently announced that it was giving ``safety bonuses'' to
its executives. Maybe that company believes that the American people
have forgotten about this tragedy. I have met with the families of the
11 men killed, and I will never forget them. The tax treatment that the
responsible companies will receive if we do not act will just add
insult to injury.
Let us also not forget Exxon's misconduct in 1989. I have chaired
several hearings on Exxon's misconduct, which led to an ecological and
human disaster that affects Alaskans even today. A jury awarded $5
billion in punitive damages against Exxon for its actions, which
devastated an entire region, the livelihoods of its people, and
destroyed a way of life. For more than a decade Exxon fought this
measure of accountability all the way to the United States Supreme
Court. A divided Supreme Court invented a novel rule and held that in
maritime cases, punitive damage awards could not exceed twice the
amount of compensatory damages. I support Senator Whitehouse's wise
legislation to overturn that Supreme Court decision, but some in
Congress do not want corporate accountability. If we cannot muster the
votes to make corporations that engage in such extreme misconduct
accountable, we need to at least stop subsidizing it through our tax
laws.
Like so many Americans, I am weary of the preferential treatment that
large corporations obtain at virtually every turn. It is disheartening
to hear reports about enormously profitable corporations paying lower
income tax rates than middle class American workers by exploiting
loopholes or sheltering profits in foreign countries. It is
unconscionable that big oil companies continue to be subsidized by
taxpayers to the tune of billions of dollars each year, especially when
Americans are facing increasingly high gasoline prices. I share the
frustration of so many Americans who are making great sacrifices, yet
who are not seeing their sacrifices shared by the most powerful in our
society. As we approach the national tax filing deadline, I expect most
Americans would agree that this punitive damages tax deduction is not
only bad tax policy, but offensive to our basic notions of justice and
fair play.
In his fiscal year 2012 budget recommendations, President Obama and
his administration requested an end to this deduction in the tax code.
The Congressional Budget Office has estimated that doing so will result
in increased revenues of $315 million over 10 years. As we collectively
work to reduce the Federal deficit, it is important to recognize that
increasing revenues will play an important part in this effort;
particularly when those revenues are lost to a policy that is without
any defensible justification.
I hope all Senators will join me to protect American taxpayers. This
legislation should be part of our bipartisan fight to reduce the
national debt. When corporate wrongdoers can write off a significant
portion of the financial impact of punitive damages, the incentives in
our justice system that promote responsible business practices lose
their force. These difficult financial times require us to close
irresponsible tax loopholes. We can start with this one, which treats
corporate misconduct as a cost of doing business.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:

S. 794

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Protecting American
Taxpayers from Misconduct Act''.

SEC. 2. DISALLOWANCE OF DEDUCTION FOR PUNITIVE DAMAGES.

(a) Disallowance of Deduction.--
(1) In general.--Section 162(g) of the Internal Revenue
Code of 1986 is amended--
(A) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively,
(B) by striking ``If'' and inserting:
``(1) Treble damages.--If'', and
(C) by adding at the end the following new paragraph:
``(2) Punitive damages.--No deduction shall be allowed
under this chapter for any amount paid or incurred for
punitive damages in connection with any judgment in, or
settlement of, any action. This paragraph shall not apply to
punitive damages described in section 104(c).''.
(2) Conforming amendment.--The heading for section 162(g)
of such Code is amended by inserting ``Or Punitive Damages''
after ``Laws''.
(b) Inclusion in Income of Punitive Damages Paid by Insurer
or Otherwise.--
(1) In general.--Part II of subchapter B of chapter 1 of
the Internal Revenue Code of 1986 is amended by adding at the
end the following new section:

``SEC. 91. PUNITIVE DAMAGES COMPENSATED BY INSURANCE OR
OTHERWISE.

``Gross income shall include any amount paid to or on
behalf of a taxpayer as insurance or otherwise by reason of
the taxpayer's liability (or agreement) to pay punitive
damages.''.
(2) Reporting requirements.--Section 6041 of such Code is
amended by adding at the end the following new subsection:
``(h) Section To Apply to Punitive Damages Compensation.--
This section shall apply to payments by a person to or on
behalf of another person as insurance or otherwise by reason
of the other person's liability (or agreement) to pay
punitive damages.''.
(3) Conforming amendment.--The table of sections for part
II of subchapter B of chapter 1 of such Code is amended by
adding at the end the following new item:

``Sec. 91. Punitive damages compensated by insurance or otherwise.''.

(c) Effective Date.--The amendments made by this section
shall apply to damages paid or incurred on or after the date
of the enactment of this Act.
______

By Mr. ROCKEFELLER (for himself, Mr. Kerry, Mr. Harkin, Mr.
Begich, and Mr. Johnson of South Dakota):
S. 796. A bill to amend the Internal Revenue Code to extend qualified
school construction bonds and qualified zone academy bonds, to treat
qualified zone academy bonds as specified tax

[[Page S2396]]

credit bonds, and to modify the private business contribution
requirement for qualified zone academy bonds; to the Committee on
Finance.
Mr. ROCKEFELLER. Mr. President, today, along with my colleagues
Senator Kerry of Massachusetts, Senator Harkin of Iowa, Senator Begich
of Alaska, and Senator Johnson of South Dakota, I am introducing
legislation to extend and improve two important programs that create
good jobs and help our nation's schools. In order for America to out-
innovate, out-educate, and out-build the rest of the world, we must
begin with our schools, and this legislation will make it easier to
create spaces where 21st century learning can occur. The Qualified
School Construction Bond, QSCB, and Qualified Zone Academy Bond, QZAB,
programs have helped schools begin to address their construction and
renovation needs, as well as creating construction jobs in their
communities. Because of the tax credit associated with these bonds, the
schools essentially do not have to pay interest which makes it much
easier for them to fund their significant construction and renovation
needs.
The Qualified School Construction Bond program was created in 2009,
and bond proceeds can be used for construction, rehabilitation, or
repair of a public school or for land for a facility. The total amount
of bonds allowed was $11 billion in 2009 and $11 billion in 2010. This
national allocation is distributed by formula to the states and larger
school districts. West Virginia, for example, was able to issue its
full allocation of $72.3 million in bonds in 2010. Construction workers
in West Virginia are building schools for their children. West Virginia
is rightfully paying for the construction, but this bond program means
their dollars go further. My legislation extends this important program
through 2015 with the same $11 billion per year total national
allocation of bonds.
The Qualified Zone Academy Bond, QZAB, program was created in 1997.
While it also helps schools issue bonds by providing favorable tax
status, participating schools must be located in an empowerment zone or
enterprise community or expect that at least 35 percent of the students
will be eligible for free or reduced-cost lunches. Bonds cannot be used
for new construction, but can be used for the rehabilitation or repair
of schools, equipment, course development, and teacher training. The
national limitation for bonds issued under this program was $1.4
billion for 2009 and 2010 and my legislation extends that annual limit
through 2015. This program has historically required a 10 percent match
from private entities, and this requirement has proven a significant
barrier to its use in some communities. My legislation provides an
option to waive this match in some cases. It also allows the bond
issuer to receive the tax credit as a payment. The Hiring Incentives to
Restore Employment--HIRE--Act which became law last spring made this
change for both bond programs and it resulted in greater use of the
bonds. The huge Middle Class Tax Relief Act of 2010 which we passed in
December repealed this change for QZABs, and my legislation makes the
credit once again refundable. We know this helps schools utilize this
program, and we need to give our schools every incentive to invest in
education.
It is important that we continue both of these important programs.
The school infrastructure needs of our country are immense. A recent
report estimated the total school infrastructure needs across the 50
States was over $250 billion. We won't meet that need in a year, or in
2 years, but we need to commit ourselves to keep at it. I urge my
colleagues to support this bill.
______

By Ms. MIKULSKI (for herself, Mr. Akaka, Mrs. Boxer, Ms.
Cantwell, Mr. Cardin, Mr. Casey, Mr. Coons, Mr. Durbin, Mr.
Franken, Mrs. Gillibrand, Mr. Harkin, Mr. Kerry, Ms. Klobuchar,
Mr. Lautenberg, Mr. Leahy, Mr. Levin, Mrs. McCaskill, Mrs.
Murray, Mr. Reed, Mr. Reid, Mrs. Shaheen, Ms. Stabenow, Mr.
Whitehouse, Mr. Wyden, Mr. Merkley, and Mrs. Hagan):
S. 797. A bill to amend the Fair Labor Standards Act of 1938 to
provide more effective remedies to victims of discrimination in the
payment of wages on the basis of sex, and for other purposes; to the
Committee on Health, Education, Labor, and Pensions.
Ms. MIKULSKI. Mr. President, I rise today to reintroduce the Paycheck
Fairness Act, an important piece of legislation that is even more
poignant today, Equal Pay Day, which is the day in 2011 where women
earn as much as men did in 2010. It is also unfortunately marked by
families doing more with less, and making tough decisions to make ends
meet. I thank the 24 of my colleagues that have joined me as original
cosponsors of this important legislation today.
As a U.S. Senator, I am fighting for jobs today and jobs tomorrow. I
am on the side of a fair economy and I am on the side of good-guy
businesses. We need an economy that works for everyone, and works for
the American family. But that means equal pay for equal work, and that
individuals are judged solely by their individual skills, competence,
unique talents and nothing else. The Paycheck Fairness Act gives us the
much needed tools to make this happen.
Women make this country run--we are business leaders, entrepreneurs,
politicians, mothers and more. We also bring home a growing share of
the family pocketbook, as evidenced by a recent White House report,
``Women In America''. But we earn just 77 cents for every dollar our
male counterpart makes, and women of color get even less. Inexplicably,
these disparities exist across all levels of education and occupation.
In my home State of Maryland, the average woman has to receive a
bachelor's degree before she earns as much as the average male high
school graduate. This is unacceptable.
The Paycheck Fairness Act picks up where we left off with the Lilly
Ledbetter Fair Pay Act last Congress. Enactment of this legislation
will mean real progress in the fight to eliminate the gender wage gap
and help families. It has the teeth that are needed to keep
discrimination from happening in the first place, and makes the
consequences tougher. The Act ensures that employers who try to justify
paying a man more than a woman for the same job must show the disparity
is not sex-based; but job related and necessary. It prohibits employers
from retaliating against employees who discuss or disclose salary
information with their coworkers. The bill would also make it easier
for women to file class-action lawsuits against employers they accuse
of sex-based pay discrimination. And it strengthens the available
remedies to include punitive and compensatory damages, thus bringing
equal pay law into line with all other civil rights law. The bottom
line is that this bill ensures that women are treated fairly in the
workplace, something that is a matter of basic equality and civil
rights.
So this Equal Pay Day, let's recommit to closing the wage gap. It is
my hope that one day, there is no need for an Equal Pay Day--that every
year, women earn the same as men. Until then, we link up, press on, and
push for passage of this important legislation, so that for all victims
of pay discrimination, there is a new day ahead.
Mr. LEAHY. Mr. President, today, the Nation commemorates Equal Pay
Day, an annual occasion that celebrates the gains that women have made
in the workplace over the last century, but which also reminds us all
that pay discrimination still exists in the United States. In today's
economy, a troubling constant remains: women continue to earn less than
men. According to the United States Bureau of Labor Statistics, on
average, women working full-time still make only 78 cents for every
dollar working men receive. For minority women, this statistic becomes
even more sobering.
The U.S. Department of Labor also reports an increasing number of
families where women are the head of the household, and
correspondingly, the primary source of income. Despite the signs of
economic recovery, many women and families continue to struggle to make
ends meet. This issue is not one that just impacts one individual; it
creates additional economic hardship for entire families. Vermont is a
leader in the Nation on fair pay practices, and 8 years ago, the State
acted to pass an equal pay act, which prohibits compensating women and

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men differently for equal work that requires equal skill, effort, and
responsibility under similar working conditions. Now in Vermont,
employers cannot require wage nondisclosure agreements, and employees
are protected from retaliation for disclosing their own wage. Still,
there is room for improvement. The Bureau of Labor Statistics reports
that Vermont women working full-time earn wages amounting to 81.9
percent of what men earn. We must work harder to ensure that women are
paid equal wages for equal work, across the country.
The 1963 Equal Pay Act was enacted to protect employees against
discrimination with respect to compensation because of an individual's
race, color, religion, sex or national origin. While we have made
progress, our work is not done. Hardworking women--and the American
people--earned a long fought victory in early 2009, when President
Obama signed into law the Lilly Ledbetter Fair Pay Act to reverse the
U.S. Supreme Court's devastating decision in Ledbetter v. Goodyear
Tire, a decision that rolled back years of progress to eliminate
workplace discrimination. But the efforts to achieve parity for women
in the workplace continues.
Two bills introduced today will help the United States reach that
goal. These bills include provisions similar to those enacted in
Vermont. The Paycheck Fairness Act, which was introduced by Senator
Mikulski and which I am proud to cosponsor, creates stronger incentives
for employers to follow the law; strengthens penalties for equal pay
violations; and prohibits retaliation against workers for disclosing
their own wage information. This bill passed the House of
Representatives with bipartisan support over a year ago, and deserves
action in the Senate. The Fair Pay Act, which was introduced by Senator
Harkin and which I am also proud to cosponsor, requires employers to
pay equally for jobs of comparable skill, efforts and working
conditions, and to disclose pay scales and rates for all job categories
at a given company. To effectively close the wage gap we must address
the systemic problems that are resulting in pay disparities. I believe
both these bills are essential steps to closing the wage gap.
Equal pay for equal work is neither a Democratic nor Republican
issue; it is an American value. It is neither a private sector nor a
public sector issue; it is a fundamental issue of fairness. Sadly, wage
discrimination affects women of every generation and every
socioeconomic background. It is not limited to one career path or level
of education. The Senate should pass the Paycheck Fairness Act and the
Fair Pay Act, and work toward other solutions to ensure our daughters
and granddaughters, and all future generations of Americans, are not
subject to the same discrimination that has plagued women for decades.
______

By Mr. CARPER (for himself, Ms. Collins, Mr. Lieberman, and Mr.
Brown of Massachusetts):
S. 801. A bill to amend chapter 113 of title 40, United States Code,
to require executive agency participation in real-time transparency of
investment projects, to require performance and governance reviews of
all cost overruns on Federal information technology investment
projects, and for other purposes; to the Committee on Homeland Security
and Governmental Affairs.
Ms. COLLINS. Mr. President. I rise to join Senators Carper,
Lieberman, and Brown in introducing a bill that would bring more
management and oversight of major information technology, IT,
investments across the federal government.
In fiscal year 2011 alone, the federal government plans to spend
nearly $80 billion on IT investments, about half of which is for major
IT investments. According to the Government Accountability Office,
nearly 40 percent of those major IT investments, totaling nearly $20
billion, are at risk for significant cost overruns, schedule delays,
and performance problems.
Rampant cost and performance problems in IT investments occur across
the government. Most recently, we have seen a total breakdown in the
National Archives and Records Administration's, NARA, Electronic
Records Archive initiative.
Since 2001, NARA has tried to develop a system to preserve and
provide access to a massive volume of electronic records. Originally
slated for a 2012 rollout at a cost of $317 million, NARA has had to
repeatedly revise the plan and cost estimate and finally decided to
produce a scaled-down system this year. Last month GAO estimated the
project would cost between $762 million and $1 billion--three times
more than originally planned.
We see time and time again with these big IT contracts that
requirements are not clear up front, leading to chaos down the road
that wastes hundreds of millions of dollars.
Such was the case with the 2010 Decennial Census handheld devices.
After spending eight years developing a completely new approach to
census-taking, the Census Bureau scrapped plans for using handheld
computers and reverted instead back to paper and pencil.
Problems managing the contractor, major flaws in the Bureau's cost-
estimates, and kicking the can down the road added about $3 billion to
the census price tag. Three billion!
The problems keep coming. DHS has tried twice--since 2004--to
integrate its many-siloed financial management systems. The Department
spent approximately $52 million on one failed attempt before abandoning
the project nearly two years later. DHS tried again only to encounter
severe schedule delays. The Department is now planning to roll out the
project incrementally, which is of course how they should have started
years ago, and is what is recommended under the OMB guidance for
managing large IT projects.
Large IT project failures have cost U.S. taxpayers literally billions
of dollars in wasted expenditures. While never acceptable, especially
now given our current fiscal crisis, we just cannot afford to accept
this type of incompetence and mismanagement one more day. Perhaps even
more troubling is the fact that, when federal IT projects fail, they
can undermine the government's ability to defend the nation, enforce
its laws, or deliver critical services to citizens.
Again and again, we have seen IT project failures grounded in poor
planning, ill-defined and shifting requirements, undisclosed
difficulties, poor risk management, and lax monitoring of performance.
For the last several years, Senator Carper and I have pushed the
Office of Management and Budget to improve the management and oversight
of these IT investments. To help address the concerns we have raised,
OMB has instituted several new initiatives over the last year and a
half.
For example, in June 2009, OMB announced the creation of the ``IT
Dashboard,'' which is a website that displays cost and schedule
information about major IT investments, as well as the agency Chief
Information Officer's, CIO, evaluation of the status of each project.
OMB has also instituted comprehensive face-to-face reviews of these
investments, known as ``TechStat'' sessions.
As a result, OMB has reported reducing the life-cycle costs of 15
investments by approximately $3 billion by narrowing the scope of some
projects and even shutting down others and cutting the losses. Added
transparency from the IT Dashboard, as well as comprehensive reviews
via TechStat sessions, should improve agency management and
Congressional oversight of the projects.
The bill Senator Carper and I introduce today would require agencies
to use the Dashboard in a standardized way. It would also expand inputs
to include cost, schedule, and performance data, using a metric called
Earned Value Management, EVM. EVM prevents the kind of ``hide the
ball'' game that agencies often play to cover up performance
shortfalls, cost overruns, or schedule slips.
The bill institutes triggers so that, if an investment deviates more
than 20 percent from its original cost, schedule, and performance
targets, CIOs would be required to conduct the type of comprehensive
TechStat sessions currently taking place at OMB on a more limited
scale. These sessions would generate information for Congress as well
as the public, by requiring agencies to post the results of the
TechStat sessions on the IT Dashboard. These reports would have to
describe in detail how the failures occurred, naming names, and
describing how exactly the shortcomings are going to be fixed.

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If an investment deviates more than 40 percent, the TechStat session
would get bumped up to the OMB level, to be run by the Federal Chief
Information Officer. In addition to information about how to improve
the performance of the project, OMB would be required to provide to
Congress a recommendation of whether the project should be pared back
or cancelled if it cannot be overhauled.
On top of this aggressive oversight ramp-up, the bill would require
agencies to identify and heighten the planning and management for a
handful of top priority, most expensive projects. For these ``core''
investments, agencies would submit additional data on performance, key
milestones, and lifecycle costs.
Because of their scope and importance to agency missions, these core
projects would have lower thresholds for oversight triggers and would
get bumped up to OMB TechStat review with a deviation of 20 percent.
The ``get-well'' plan would then be sent to Congress and published on
the Dashboard for maximum accountability. This early intervention at
the highest level would ensure that these critical projects are either
saved or scrapped long before they can threaten to waste billions of
dollars or endanger agency missions.
If an agency fails to comply with the requirements in the bill for
any given project, that would be the end of taxpayer support for the
project until it is brought into compliance.
If this bill had been law during the past decade, early warning signs
would have alerted Congress and possibly saved some of the billions
wasted on so many IT projects currently crowding various high-risk
lists.
I urge every Senator to support this much-needed and bipartisan bill.

____________________