[Congressional Record Volume 165, Number 34 (Monday, February 25, 2019)]
[Senate]
[Pages S1439-S1443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




BIENNIAL REPORT OF BOARD OF DIRECTORS OF CONGRESSIONAL WORKPLACE RIGHTS

         U.S. Congress, Office of Congressional Workplace Rights,
                                Washington, DC, February 25, 2019.
     Hon. Charles Grassley,
     President Pro Tempore, U.S. Senate,
     Washington, DC.
       Dear Mr. President: Section 102(b) of the Congressional 
     Accountability Act of 1995 (CAA) requires the Board of 
     Directors of the Office of Congressional Workplace Rights 
     (OCWR) to biennially submit a report containing 
     recommendations regarding Federal workplace rights, safety 
     and health, and public access laws and regulations that 
     should be made applicable to Congress and its agencies. The 
     purpose of this report is to ensure that the rights afforded 
     by the CAA to legislative branch employees and visitors to 
     Capitol Hill and district offices remain equivalent to those 
     in the private sector and the executive branch of the Federal 
     government. As such, these recommendations support the intent 
     of Congress to keep pace with advances in workplace rights 
     and public access laws.
       Accompanying this letter is a copy of our section 102(b) 
     report--titled ``Recommendations for Improvements to the 
     Congressional Accountability Act''--for consideration by the 
     116th Congress. We welcome discussion on these issues and 
     urge that Congress act on these important recommendations.
       Your office is receiving this initial copy prior to it 
     being uploaded to our public website. On March 4, 2019, this 
     report will be disseminated to the larger Congressional 
     community and available on www.ocwr.gov. As required by the 
     Congressional Accountability Act, 2 U.S.C. Sec. 1302(b), I 
     request that this publication be printed in the Congressional 
     Record, and referred to the committees of the House of 
     Representatives and Senate with jurisdiction.
           Sincerely,
                                             Susan Tsui Grundmann,
                                               Executive Director.

[[Page S1440]]

  


 116th Congress--Recommendations for Improvements to the Congressional 
                           Accountability Act

Office of Congressional Workplace Rights--Board of Directors' Biennial 
Report required by Sec. 102(b) of the Congressional Accountability Act 
    issued at the conclusion of the 115th Congress (2017-2018) for 
                  consideration by the 116th Congress

     Statement From the Board of Directors
       The Congressional Accountability Act of 1995 (CAA) embodies 
     a promise by Congress to the American public that it will 
     hold itself accountable to the same federal workplace and 
     accessibility laws that it applies to private sector 
     employers and executive branch agencies. This landmark 
     legislation was also crafted to provide for ongoing review of 
     the workplace and accessibility laws that apply to Congress. 
     Section 102(b) of the CAA thus tasks the Board of Directors 
     of the Office of Congressional Workplace Rights (OCWR)--
     formerly the Office of Compliance--to review legislation and 
     regulations to ensure that workplace protections in the 
     legislative branch are on par with private sector and 
     executive branch agencies. Accordingly, every Congress, the 
     Board reports on: whether or to what degree [provisions of 
     Federal law (including regulations) relating to (A) the terms 
     and conditions of employment (including hiring, promotion, 
     demotion, termination, salary, wages, overtime compensation, 
     benefits, work assignments or reassignments, grievance and 
     disciplinary procedures, protection from discrimination in 
     personnel actions, occupational health and safety, and family 
     and medical and other leave) of employees; and (B) access to 
     public services and accommodations] . . . are applicable or 
     inapplicable to the legislative branch, and . . . with 
     respect to provisions inapplicable to the legislative branch, 
     whether such provisions should be made applicable to the 
     legislative branch. This section of the CAA also requires 
     that the presiding officers of the House of Representatives 
     and the Senate cause our report to be printed in the 
     Congressional Record and refer the report to committees of 
     the House and Senate with jurisdiction.
       On December 21, 2018, as we were in the process of 
     finalizing our Section 102(b) Report for the 115th Congress, 
     the Congressional Accountability Act of 1995 Reform Act, S. 
     3749, was signed into law. Not since the passage of the CAA 
     in 1995 has there been a more significant moment in the 
     evolution of legislative branch workplace rights. The new law 
     focuses on protecting victims, strengthening transparency, 
     holding violators accountable for their personal conduct, and 
     improving the adjudication process. Some of the changes in 
     the CAA Reform Act are effective immediately, such as the 
     name change of our Office, but most will be effective 180 
     days from enactment, i.e., on June 19, 2019. The CAA Reform 
     Act incorporates several of the recommendations that the OCWR 
     has made to Congress in past Section 102(b) Reports and in 
     other contexts, such as in testimony before the Committee on 
     House Administration (CHA) as part of that committee's 
     comprehensive review in 2018 of the protections that the CAA 
     offers legislative branch employees against harassment and 
     discrimination in the congressional workplace. These changes 
     include the following:
     Mandatory Anti-Discrimination, Anti-Harassment, and Anti-
         Retaliation Training
       The Board has consistently recommended in its past biennial 
     Section 102(b) Reports and in testimony before Congress that 
     anti-discrimination, anti-harassment, and anti-reprisal 
     training should be mandatory for all Members, officers, 
     employees and staff of Congress and the other employing 
     offices in the legislative branch. Last year, the House and 
     the Senate adopted resolutions (S. Res 330 and H. Res. 630) 
     that require all of its Members, Officers and employees, as 
     well as interns, detailees, and fellows, to complete an anti-
     harassment and anti-discrimination training program. We are 
     pleased that the CAA Reform Act includes these broader 
     mandates for the congressional workforce at large. Under the 
     new law, employing offices (other than the House of 
     Representatives and the Senate) are also required to develop 
     and implement a program to train and educate covered 
     employees on the rights and protections provided under the 
     CAA, including the procedures available under CAA title IV, 
     which describes the OCWR administrative and judicial dispute 
     resolution procedures. 509(a), 2 U.S.C. Sec. 1438(a). 
     Employing offices must submit a report on the implementation 
     of their CAA-required training and education programs to the 
     CHA and the Committee on Rules and Administration of the 
     Senate no later than 45 days after the beginning of each 
     Congress, beginning with the 117th Congress. For the 116th 
     Congress, this report is due no later than 180 days after the 
     enactment of the CAA Reform Act, which is June 19, 2019. 
     509(b)(1), (b)(2), 2 U.S.C. Sec. 1438(b)(1), (b)(2)
       The OCWR stands ready to assist employing offices in 
     developing their anti-discrimination, anti-harassment, and 
     anti-reprisal programs by providing training opportunities 
     and materials that are easily understood, practical rather 
     than legalistic, proven effective, and which emphasize the 
     change of culture on Capitol Hill. Through these programs, we 
     can achieve the goal of a legislative branch that is free 
     from discrimination, harassment and reprisal.
     Adopt All Notice-Posting Requirements that Exist Under the 
         Federal Anti-Discrimination, Anti-Harassment, and Other 
         Workplace Rights Laws Covered Under the CAA
       The Board has long been concerned that employees who 
     experience harassment or discrimination in the legislative 
     branch may be deterred from taking action simply due to a 
     lack of awareness of their rights under the CAA. The Board 
     has therefore consistently recommended in its Section 102(b) 
     reports that Congress adopt all notice-posting requirements 
     that exist under the Federal antidiscrimination, anti-
     harassment, and other workplace rights laws covered under the 
     CAA. Through permanent postings, current and new employees 
     remain informed about their rights regardless of their 
     location, employee turnover, or other changes in the 
     workplace. The notices also serve as a reminder to employers 
     about their workplace responsibilities and the legal 
     ramifications of violating the law. They are also a visible 
     commitment by Congress to the workplace protections embodied 
     in the CAA. The CAA Reform Act now requires that employing 
     offices post and keep posted in conspicuous places on their 
     premises the notices provided by the OCWR, which must contain 
     information about employees' rights and the OCWR's 
     Administrative Dispute Resolution (ADR) process, along with 
     OCWR contact information. 2 U.S.C. Sec. 1362.
     Name Change
       As the Board advised Congress in 2014, changing the name of 
     the office to ``Office of Congressional Workplace Rights'' 
     would better reflect our mission, raise our public profile in 
     connection with our mandate to educate the legislative 
     branch, and make it easier for employees to identify us when 
     they need assistance. Effective December 21, 2018, the Reform 
     Act renamed the ``Office of Compliance'' as the ``Office of 
     Congressional Workplace Rights.'' This name change notifies 
     legislative branch employees that the Office is tasked with 
     protecting their workplace rights through its programs of 
     dispute resolution, education, and enforcement. As the Office 
     embraces its new name, it remains committed to the mission of 
     advancing workplace rights, safety and health, and 
     accessibility for workers and visitors on Capitol Hill, as 
     envisioned in the CAA and the CAA Reform Act.
     Extending Coverage to Interns, Fellows, and Detailees
       The Board also has consistently recommended in its Section 
     102(b) Reports that Congress extend the coverage and 
     protections of the anti-discrimination, anti-harassment, and 
     anti-reprisal provisions of the CAA to all staff, including 
     interns, fellows, and detailees working in any employing 
     office in the legislative branch, regardless of how or 
     whether they are paid. The CAA Reform Act amends section 201 
     of the CAA--which applies title VII of the Civil Rights Act 
     of 1964 (outlawing discrimination based on race, color, 
     religion, sex, or national origin), the Age Discrimination in 
     Employment Act, the Rehabilitation Act, and title I of the 
     Americans with Disabilities Act (ADA)--to apply the 
     protections and remedies of those laws to current and former 
     ``unpaid staff.'' ``Unpaid staff'' is defined in the Reform 
     Act as ``any staff member of an employing office who carries 
     out official duties of the employing office but who is not 
     paid by the employing office for carrying out such duties . . 
     . including an intern, an individual detailed to an employing 
     office, and an individual participating in a fellowship 
     program[.]'' These laws apply to unpaid staff ``in the same 
     manner and to the same extent as such subsections apply with 
     respect to a covered employee[.]'' 201(d), 2 U.S.C. 
     Sec. 1311(d). The Reform Act thus ensures that unpaid 
     interns, fellows, and detailees are covered by the CAA.
     Extending Coverage to Library of Congress Employees
       Prior to 2018, only certain provisions of the CAA applied 
     to employees of the Library of Congress (LOC), and the Board 
     expressed its support for proposals to amend the CAA to 
     include the LOC within the definition of ``employing 
     office,'' thereby extending CAA protections to LOC employees 
     for most purposes. The 2018 omnibus spending bill amended the 
     CAA to bring the LOC and its employees within the OCWR's 
     (then OOC's) jurisdiction. That bill amended the definition 
     of ``covered employee'' under the CAA to include employees of 
     the LOC, and it added the LOC as an ``employing office'' for 
     all purposes except the CAA's labor-management relations 
     provisions. Among other changes, the bill gave to LOC 
     employees a choice on how to pursue complaints of employment 
     discrimination--allowing them to pursue a complaint either 
     with the LOC's Office of Equal Employment Opportunity and 
     Diversity Programs or with the OCWR. The Reform Act 
     incorporates these statutory changes and further clarifies 
     the rights of LOC employees in this regard as well as others. 
     Its provisions are effective retroactive to March 23, 2018. 2 
     U.S.C. Sec. 1401(d)(5).
     Changes to the Dispute Resolution Procedures Under the CAA
       In testimony before the CHA as part of that committee's 
     comprehensive review of the CAA and the protections that law 
     offers legislative branch employees against harassment and 
     discrimination in the congressional workplace, OCWR Executive 
     Director Susan Tsui Grundmann conveyed the Board of 
     Directors' considered recommendations for changes to the ADR 
     procedures set forth in the Act, discussed below.

[[Page S1441]]

  

     Pre-Reform Act Procedures Under the CAA
       As stated above, the effective date for the new ADR 
     procedures under the Reform Act is June 19, 2019. Currently, 
     prior to filing a complaint with the OCWR pursuant to section 
     405 of the Act or in the U.S. District Court, the CAA 
     requires that an employee satisfy two jurisdictional 
     prerequisites: mandatory counseling and mandatory mediation. 
     If a claim is not resolved during the counseling phase and 
     the employee wishes to pursue the matter, the CAA currently 
     requires the employee to file a request for mediation with 
     the OCWR. When a case proceeds to mediation, the employing 
     office is notified about the claim and the parties attempt to 
     settle the matter with the assistance of a trained neutral 
     mediator appointed by the OCWR.
       If the parties fail to resolve their dispute in mediation, 
     a covered employee may elect to proceed directly to the third 
     step in the process, either by filing an administrative 
     complaint with the OCWR, in which case the complaint would be 
     decided by an OCWR Hearing Officer in a confidential setting, 
     or by filing a lawsuit in a U.S. District Court, in which 
     case the proceedings would be a matter of public record. By 
     statute, this election--which is the employee's alone--must 
     occur not later than 90 days, but not sooner than 30 days, 
     after the end of the period of mediation. This statutory 
     timing requirement creates a 30-day period--sometimes 
     referred to as a ``cooling off period''--before the employee 
     can proceed. A party dissatisfied with the decision of the 
     Hearing Officer may file a petition for review with the OCWR 
     Board of Directors, and any decision of the Board may be 
     appealed to the U.S. Court of Appeals for the Federal 
     Circuit. If, instead of filing a request for an 
     administrative hearing, the employee files a civil suit in 
     Federal district court, an appeal of that decision would 
     proceed under the rules of the appropriate U.S. Court of 
     Appeals. As is discussed below, the Board has advocated in 
     the legislative process for several procedural changes now 
     provided for in the Reform Act, which potentially shorten the 
     case handling process without compromising its effectiveness 
     in resolving disputes under the CAA.
     Counseling and Mediation Changes
       In testimony before the CHA, Executive Director Grundmann 
     explained that counselors often provide covered employees 
     with their first opportunity to discuss their workplace 
     concerns and to learn about their statutory protections under 
     the CAA. She conveyed the Board's view that, although 
     counseling need not remain mandatory under the CAA, the CAA 
     should not be amended in such a manner as to eliminate the 
     availability of an opportunity for employees to voluntarily 
     seek confidential assistance from our office. Under the new 
     procedures set forth in the CAA Reform Act, counseling will 
     no longer be mandatory. Rather, the CAA Reform Act provides 
     for the optional services of a confidential advisor--an 
     attorney who can, among other things, provide information to 
     covered employees, on a privileged and confidential basis, 
     about their rights under the CAA. 2 U.S.C. Sec. 1402(a)(3).
       As with counseling, the Executive Director also conveyed to 
     the CHA the Board's view supporting the elimination of 
     mediation as a mandatory jurisdictional prerequisite to 
     asserting claims under the CAA. The Board nonetheless 
     recommended that mediation be maintained as a valuable option 
     available to those parties who mutually seek to settle their 
     dispute. The OCWR's experience over many years has been that 
     a large percentage of controversies were successfully 
     resolved without formal adversarial proceedings, due in large 
     part to its mediation processes. Mediation can save the 
     parties from burdensome litigation, which can be expensive, 
     time consuming, and a drain on resources and workplace 
     productivity. Mediation also gives the parties an opportunity 
     to explore resolving the dispute themselves without having a 
     result imposed upon them. Furthermore, OCWR mediators are 
     highly skilled professionals who have the sensitivity, 
     expertise, and flexibility to customize the mediation process 
     to meet the concerns of the parties. In short, the 
     effectiveness of mediation as a tool to resolve workplace 
     disputes cannot be understated. Under the CAA Reform Act, 
     mediation still remains available, but it is optional. It is 
     no longer a jurisdictional prerequisite to asserting claims 
     under the CAA, and it will take place only if requested and 
     only if both parties agree.
     ``Cooling Off'' Period
       As stated above, the CAA presently requires an employee to 
     wait 30 days after mediation ends to pursue a formal 
     administrative complaint or a lawsuit in a U.S. District 
     Court. In her testimony before the CHA, Executive Director 
     Grundmann conveyed the Board's recommendation that this 
     period be eliminated from the statute. The Reform Act 
     amendments do so.
       As the changes set forth in the Reform Act take effect, the 
     Board will carefully monitor their effectiveness and advise 
     Congress of its findings in this regard. In this Report, we 
     also highlight key recommendations that the Board has made in 
     past Section 102(b) Reports that have not yet been 
     implemented. (see note 1.) We continue to believe that the 
     adoption of these recommendations, discussed below, will best 
     promote a model workplace in the legislative branch. The 
     Board welcomes an opportunity to further discuss these 
     recommendations and asks for careful consideration of the 
     requests by the 116th Congress.
           Sincerely,
     Barbara Childs Wallace,
       Chair, Board of Directors.
     Barbara L. Camens.
     Alan V. Friedman.
     Roberta L. Holzwarth.
     Susan S. Robfogel.
     Recommendations for the 116th Congress
     Apply the Wounded Warrior Federal Leave Act of 2015 to the 
         Legislative Branch (Public Law 114-75)
       The Wounded Warrior Federal Leave Act, enacted in 2015, 
     affords wounded warriors the flexibility to receive medical 
     care as they transition to serving the nation in a new 
     capacity. Specifically, new federal employees who are also 
     disabled veterans with a 30% or more disability may receive 
     104 hours of ``wounded warrior leave'' during their first 
     year in the federal workforce so that they may seek medical 
     treatment for their service-connected disabilities without 
     being forced to take unpaid leave or forego their medical 
     appointments. The Act was passed as a way to show gratitude 
     and deep appreciation for the hardship and sacrifices of 
     veterans and, in particular wounded warriors, in service to 
     the United States. Although some employing offices in the 
     legislative branch offer Wounded Warrior Federal Leave, the 
     Board reiterates the recommendation made in its 2016 Section 
     102(b) Report to extend the benefits of that Act to the 
     legislative branch with enforcement and implementation under 
     the provisions of the CAA.
     Approve the Board's Pending Regulations
       The CAA directs the OCWR to promulgate regulations 
     implementing the CAA to keep Congress current and accountable 
     to the workplace laws that apply to private and public 
     employers. The Board is required to amend its regulations to 
     achieve parity, unless there is good cause shown to deviate 
     from the private sector or executive branch regulations. The 
     Board recommended in its 2016 section 102(b) Report to the 
     115th Congress that it approve its pending regulations that 
     would implement the Family and Medical Leave Act (FMLA), ADA 
     titles II and III, and the Uniformed Services Employment and 
     Reemployment Act (USERRA) in the legislative branch. The 
     Board-adopted regulations ensure that same-sex spouses are 
     recognized under the FMLA, in accordance with Supreme Court 
     rulings, and further extend important protections for 
     military caregivers and service members. The Board's adopted 
     ADA regulations will avoid costly construction and 
     contracting errors that result when there is uncertainty or 
     ambiguity regarding what standards apply, and will improve 
     access to Capitol Hill for visitors and employees with 
     disabilities. The Board of Directors also transmitted to 
     Congress its adopted USERRA regulations on December 3, 2008 
     and identified ``good cause'' to modify the executive branch 
     regulations to implement more effectively the rights and 
     protections for veterans as applied to the Senate, the House 
     of Representatives, and the other employing offices. These 
     rules are necessary to fulfill the commitments set forth in 
     USERRA to our nation's veterans in the legislative branch.
     Analysis of Pending FMLA Regulations:
       On June 22, 2016, the Board of Directors adopted and 
     transmitted to Congress for approval its regulations 
     necessary for implementing the FMLA in the legislative 
     branch. In accordance with the CAA, those regulations are the 
     same as the substantive regulations adopted by the Secretary 
     of Labor, 2 U.S.C. Sec. 1312(d)(2), except where good cause 
     was shown that a modification would be more effective in 
     implementing FMLA rights under the CAA. We seek congressional 
     approval of these important FMLA regulations. The FMLA 
     regulations provide needed clarity on important aspects of 
     the law, including essential requirements for certifying 
     leave and documentation, defining ``spouse'' to include same-
     sex spouses as required by the Supreme Court precedent, and 
     adding military caregiver leave. Adoption of these 
     regulations will reduce uncertainty for both employing 
     offices and employees and provide greater predictability in 
     the congressional workplace. First, these FMLA regulations 
     add the military leave provisions of the FMLA, enacted under 
     the National Defense Authorization Acts (NDAA) for Fiscal 
     Years 2008 and 2010 (see note 2), that extend the 
     availability of FMLA leave to family members of the Regular 
     Armed Forces for qualifying exigencies arising out of a 
     service member's deployment. They also define those 
     deployments covered under these provisions, extend FMLA 
     military caregiver leave for family members of current 
     service members to include an injury or illness that existed 
     prior to service and was aggravated in the line of duty on 
     active duty, and extend FMLA military caregiver leave to 
     family members of certain veterans with serious injuries or 
     illnesses. As noted, the FMLA amendments providing additional 
     rights and protections for service members and their families 
     were enacted into law by the NDAA for Fiscal Years 2008 and 
     2010. The congressional committee reports that accompany the 
     NDAA for Fiscal Years 2008 and 2010 and the amended FMLA 
     provisions do not ``describe the manner in which the 
     provision of the bill [relating to terms and conditions of 
     employment]... apply to the legislative branch'' or ``include 
     a statement of the reasons the provision does not apply [to 
     the legislative branch]'' (in the case of a provision

[[Page S1442]]

     not applicable to the legislative branch), as required by 
     section 102(b)(3) of the CAA. (see note 3)
       Consequently, when the FMLA was amended to add these 
     additional rights and protections, it was not clear whether 
     Congress intended that these additional rights and 
     protections apply in the legislative branch. To the extent 
     that there may be an ambiguity regarding the applicability to 
     the legislative branch of the 2008 and 2010 FMLA amendments, 
     the Board makes clear through these regulations that the 
     rights and protections for military servicemembers apply in 
     the legislative branch, and that protections under the CAA 
     are in line with existing public and private sector 
     protections under the FMLA. The Board-adopted FMLA 
     regulations implement leave protections of significant 
     importance to legislative branch employees and employing 
     offices. Accordingly, the Board recommends that Congress 
     approve the Board's adopted FMLA regulations. Second, these 
     regulations set forth the revised definition of ``spouse'' 
     under the FMLA in light of the DOL's February 25, 2015 Final 
     Rule on the definition of spouse, and the United States 
     Supreme Court's decision in Obergefell v. Hodges (see note 
     4), which requires a state to license a marriage between two 
     people of the same sex and to recognize a marriage between 
     two people of the same sex when their marriage was lawfully 
     licensed and performed out-of-state.
     Analysis of Pending ADA Regulations:
       Public access to Capitol Hill and constituent access to 
     district and state offices has been a hallmark of many 
     congresses. The Board recommends that Congress approve its 
     adopted regulations implementing titles II and III of the ADA 
     to Capitol Hill and the district offices. First, the Board's 
     ADA regulations clarify which title II and title III 
     regulations apply to the legislative branch. This knowledge 
     will undoubtedly save taxpayers money by ensuring pre-
     construction review of construction projects for ADA 
     compliance--rather than providing for only post-construction 
     inspections and costly redos when the access is not adequate. 
     Second, under the regulations adopted by the Board, all 
     leased spaces must meet some basic accessibility requirements 
     that apply to all federal facilities that are leased or 
     constructed. In this way, Congress will remain a model for 
     ADA compliance and public access. Under the authority of the 
     landmark CAA, the OOC has made significant progress towards 
     making Capitol Hill more accessible for persons with 
     disabilities. Our efforts to improve access to the buildings 
     and facilities on the campus are consistent with the priority 
     guidance in the Board's ADA regulations, which it adopted in 
     February 2016. Congressional approval of those regulations 
     would reaffirm its commitment to provide barrier-free access 
     to the visiting public to the Capitol Hill complex.
     Analysis of Pending USERRA Regulations:
       On December 3, 2008, the Board of Directors adopted USERRA 
     regulations to apply to the legislative branch. Those 
     regulations, transmitted to Congress over 10 years ago, 
     should be immediately approved. They support our nation's 
     veterans by requiring continuous health care insurance and 
     job protections for the men and women of the service who have 
     supported our country's freedoms. The 114th Congress was 
     particularly focused on issues concerning veterans' health, 
     welfare, access, and employment status. Approving the USERRA 
     regulations will assist service members in attaining and 
     retaining a job despite the call to duty. The regulations 
     commit to anti-discrimination, anti-retaliation, and job 
     protection under USERRA. Approving USERRA regulations would 
     signal congressional encouragement to veterans to seek work 
     in the legislative branch where veteran employment levels 
     have historically been well below the percentage in the 
     executive branch, or even in the private sector, which is not 
     under a mandate to provide a preference in hiring to 
     veterans. Indeed, many reports have put the level of veteran 
     employees on congressional staffs at two to three percent or 
     less. The Veterans Congressional Fellowship Caucus, started 
     in 2014, has supported efforts to bridge the gap between 
     military service and legislative work. In addition, the 
     Wounded Warrior Fellowship Program exists in the House Chief 
     Administrative Officer (CAO) where Members can hire veteran 
     fellows for 2-year terms. In the Senate, the Armed Forces 
     Internship Program exists to provide on-the-job training for 
     returning veterans with disabilities. An extension of these 
     laudable efforts should include the long-delayed passage of 
     the Board's adopted USERRA regulations which implement 
     protections for initial hiring and protect against 
     discrimination based on military service. Congress can lead 
     by example by applying the USERRA law encompassed in the CAA.
       Approving the three sets of Board-adopted regulations 
     outlined above would not only signify a commitment to the 
     laws of the CAA--which passed in 1995 with nearly unanimous, 
     bi-cameral, and bipartisan support--but would further help 
     legislative branch managers effectively implement the laws' 
     protections and benefits on behalf of the workforce.
     Protect Employees and Applicants Who Are or Have Been in 
         Bankruptcy (11 U.S.C. Sec. 525)
       Section 525(a) of title 11 of the U.S. Code provides that 
     ``a governmental unit'' may not deny employment to, terminate 
     the employment of, or discriminate with respect to employment 
     against, a person because that person is or has been a debtor 
     under the bankruptcy statutes. This provision currently does 
     not apply to the legislative branch. Reiterating the 
     recommendations made in the 1996, 1998, 2000 and 2006 Section 
     102(b) reports, the Board advises that the rights and 
     protections against discrimination on this basis should be 
     applied to employing offices within the legislative branch.
     Prohibit Discharge of Employees Who Are or Have Been Subject 
         to Garnishment (15 U.S.C. Sec. 1674(A))
       Section 1674(a) of title 15 of the U.S. Code prohibits 
     discharge of any employee because his or her earnings ``have 
     been subject to garnishment for any one indebtedness.'' This 
     section is limited to private employers, so it currently has 
     no application to the legislative branch. For the reasons set 
     forth in the 1996, 1998, 2000 and 2006 Section 102(b) 
     Reports, the Board recommends that the rights and protections 
     against discrimination on this basis should be applied to 
     employing offices within the legislative branch.
     Provide Whistleblower Protections to the Legislative Branch
       Civil service law provides broad protection to 
     whistleblowers in the executive branch to safeguard workers 
     against reprisal for reporting violations of laws, rules, or 
     regulations, gross mismanagement, gross waste of funds, abuse 
     of authority, or a substantial and specific danger to public 
     health or safety. In the private sector, whistleblowers also 
     are often protected by provisions of specific federal laws. 
     However, these provisions do not apply to the legislative 
     branch. The OCWR has received a number of inquiries from 
     congressional employees concerned about the lack of 
     whistleblower protections. The absence of specific statutory 
     protection such as that provided under 5 U.S.C. 
     Sec. 2302(b)(8) chills the disclosure of such information. 
     Granting whistleblower protection could significantly improve 
     the rights and protections afforded to legislative branch 
     employees in an area fundamental to the institutional 
     integrity of the legislative branch by uncovering waste and 
     fraud and safeguarding the budget.
       The Board has recommended in its previous Section 102(b) 
     reports and continues to recommend that Congress provide 
     whistleblower reprisal protections to legislative branch 
     employees comparable to that provided to executive branch 
     employees under 5 U.S.C. Sec. 2302(b)(8), and 5 U.S.C. 
     Sec. 1221. Additionally, as discussed below, the Board 
     recommends that the Office also be granted investigatory and 
     prosecutorial authority over whistleblower reprisal 
     complaints, by incorporating into the CAA the authority 
     granted to the Office of Special Counsel, which investigates 
     and prosecutes claims of whistleblower reprisal in the 
     executive branch.
     Provide Subpoena Authority to Obtain Information Needed for 
         Safety & Health Investigations and Require Records To Be 
         Kept of Workplace Injuries and Illnesses
       The CAA applies the broad protections of section 5 of the 
     Occupational Safety and Health Act (OSHAct) to the 
     congressional workplace. The OCWR enforces the OSHAct in the 
     legislative branch much in the same way the Secretary of 
     Labor enforces the OSHAct in the private sector. Under the 
     CAA, the OCWR is required to conduct safety and health 
     inspections of covered employing offices at least once each 
     Congress and in response to any request, and to provide 
     employing offices with technical assistance to comply with 
     the OSHAct's requirements. But Congress and its agencies are 
     still exempt from critical OSHAct requirements imposed upon 
     American businesses. Under the CAA, employing offices in the 
     legislative branch are not subject to investigative subpoenas 
     to aid in inspections as are private sector employers under 
     the OSHAct. Similarly, Congress exempted itself from the 
     OSHAct's recordkeeping requirements pertaining to workplace 
     injuries and illnesses that apply to the private sector. The 
     Board recommends that legislative branch employing offices be 
     subject to the investigatory subpoena provisions contained in 
     OSHAct Sec. 8(b) and that legislative branch employing 
     offices be required to keep records of workplace injuries and 
     illnesses under OSHAct Sec. 8(c), 29 U.S.C. Sec. 657(c).
     Adopt Recordkeeping Requirements Under Federal Workplace 
         Rights Laws
       The Board, in several Section 102(b) reports, has 
     recommended and continues to recommend that Congress adopt 
     all recordkeeping requirements under Federal workplace rights 
     laws, including title VII. Although some employing offices in 
     the legislative branch keep personnel records, there are no 
     legal requirements under the CAA to do so.

                                Endnotes

     1. The Board has long advocated for legislation granting the 
     OCWR General Counsel the authority to investigate and 
     prosecute complaints of discrimination, harassment and 
     reprisal in order to assist victims and to improve the 
     adjudicatory process under the CAA. As discussed in this 
     Report, the Reform Act establishes new procedures that are 
     also clearly intended to further these policy goals. Under 
     these circumstances, the Board believes that the best course 
     of action is to evaluate the efficacy of the new Reform Act 
     procedures once they have been implemented before revisiting 
     the issue of whether the OCRW General Counsel should be 
     granted such investigatory and prosecutorial authority. 
     Accordingly, this recommendation is not discussed further 
     below.
     2. Pub. L. 110-181, Div. A, Title V Sec. 585(a)(2), (3)(A)-
     (D) and Pub. L. 111-84, Div. A, Title V Sec. 565(a)(1)(B) and 
     (4).

[[Page S1443]]

     3. U.S.C. Sec. 1302(3); House Committee on Armed Services, H. 
     Rpt. 110-146 (May 11, 2007), H. Rpt. 111-166 (June 18, 2009)
     4. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

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