[Congressional Record Volume 167, Number 36 (Thursday, February 25, 2021)]
[Senate]
[Pages S902-S905]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      BIENNIAL REPORT OF THE BOARD OF DIRECTORS OF THE OFFICE OF 
                     CONGRESSIONAL WORKPLACE RIGHTS

                                                  U.S. Congress,  


                                     Office of Congressional  

                                             Workplace Rights,

                                 Washington, DC, February 25, 2021
     Hon. Patrick J. Leahy,
     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 and state 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 the Board's Section 
     102(b) Report for the 117th Congress. This report was 
     submitted electronically to President Pro Tempore Grassley 
     and Speaker Pelosi on December 31, 2020, which was the filing 
     date required by statute. We welcome discussion on these 
     issues and urge that Congress act on these important 
     recommendations.
       As required by the CAA, we request that this publication be 
     printed in the Congressional Record and referred to the 
     committees of the U.S. Senate with jurisdiction.
           Sincerely,

                                         Susan Tsui Grundmann,

                                               Executive Director,
                         Office of Congressional Workplace Rights.

       Attachment.

 RECOMMENDATIONS FOR IMPROVEMENTS TO THE CONGRESSIONAL ACCOUNTABILITY 
                                  ACT

Office of Congressional Workplace Rights--Board of Directors' Biennial 
   Report required by 102(b) of the Congressional Accountability Act 
issued at the conclusion of the 116th Congress for consideration by the 
                             117th Congress

     Statement from the Board of Directors
       With its enactment of the Congressional Accountability Act 
     (CAA) in 1995, Congress first applied to the legislative 
     branch the same laws regarding workplace rights and the 
     employment relationship as governed the executive branch and 
     private sector, including those addressing discrimination, 
     workplace safety and health, wages and hours, accessibility, 
     and collective bargaining and labor-management relations. 
     Passage of the CAA in the opening days of the 104th Congress 
     with nearly unanimous approval reflected a Congressional 
     promise to the American public that it would hold itself 
     accountable to the same federal workplace and accessibility 
     standards as apply to private sector employers and executive 
     branch agencies.
       This commitment is not meant to be static. Rather, the CAA 
     provides for an ongoing, vigilant review of federal law to 
     ensure that Congress continues to apply to itself--where 
     appropriate--the labor, employment, health, and safety laws 
     that it enacts. To further this goal, section 102(b) of the 
     CAA tasks the Board of Directors of the Office of 
     Congressional Workplace Rights (OCWR) to review federal 
     legislation and regulations to ensure that workplace 
     protections in the legislative branch are on par with those 
     applicable to 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 (2B) 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.
       In past Reports, the Board has taken a broad approach in 
     presenting its recommendations to amend the CAA. In this 
     Report, we highlight key recommendations that the Board has 
     made in past Section 102(b) Reports that have not yet been 
     implemented, as well as additional recommendations to amend 
     the CAA to increase transparency, discourage protracted 
     administrative proceedings at the taxpayers' expense, and 
     enjoin unlawful conduct.
       While recognizing the enormous importance of many of the 
     other issues faced today by the 117th Congress, the Board is 
     hopeful that issuance of this Section 102(b) Report will 
     result in legislative action necessary to implement these 
     recommendations so that the CAA remains current with the 
     employment needs of the legislative branch. Without action on 
     the Board's recommendations, the worthy goals of the CAA 
     gradually may be eroded.

[[Page S903]]

       The Board welcomes an opportunity to further discuss these 
     recommendations and asks for careful consideration of the 
     requests by the 117th Congress.
           Sincerely,
     Barbara Childs Wallace,
       Chair, Board of Directors.
     Barbara L. Camens.
     Alan V. Friedman.
     Roberta L. Holzwarth.
     Susan S. Robfogel.
     Recommendations for the 117th Congress

     Amend the CAA to Allow the OCWR Board of Directors to 
         Authorize the OCWR General Counsel to Seek Appropriate 
         Temporary Relief after Filing an Unfair Labor Practice 
         (ULP) Charge
       Section 220 of the CAA incorporates certain provisions of 
     the Federal Service Labor-Management Relations Statute 
     (FSLMRS) to the legislative branch. 2 U.S.C. Sec. 1351. In 
     general, the OCWR General Counsel exercises the same 
     authority delegated to the General Counsel of the Federal 
     Labor Relations Authority (FLRA) under 5 U.S.C. 
     Sec. Sec. 7104 and 7118 in the executive branch, that is, the 
     authority to investigate allegations of ULPs and to file and 
     prosecute complaints regarding ULPs.
       The CAA, however, does not currently incorporate the 
     provisions of 5 U.S.C. Sec. 7123(d), pursuant to which 
     parties to ULP proceedings in the executive branch may 
     request the FLRA General Counsel to seek appropriate 
     temporary relief, including issuance of a temporary 
     restraining order. Specifically, section 7123(d) provides:
       The Authority may, upon issuance of a complaint as provided 
     in section 7118 of this title charging that any person has 
     engaged in or is engaging in an unfair labor practice, 
     petition any United States district court within any district 
     in which the unfair labor practice in question is alleged to 
     have occurred or in which such person resides or transacts 
     business for appropriate temporary relief (including a 
     restraining order). Upon the filing of the petition, the 
     court shall cause notice thereof to be served upon the 
     person, and thereupon shall have jurisdiction to grant any 
     temporary relief (including a temporary restraining order) it 
     considers just and proper. A court shall not grant any 
     temporary relief under this section if it would interfere 
     with the ability of the agency to carry out its essential 
     functions or if the Authority fails to establish probable 
     cause that an unfair labor practice is being committed.
       This important statutory provision in the FSLMRS allows the 
     FLRA General Counsel to seek, in appropriate cases when a ULP 
     Complaint is filed, temporary relief in any United States 
     District Court when it would be just and proper to do so and 
     the record establishes probable cause that an ULP is being 
     committed.
       Incorporating the provisions 5 U.S.C. Sec. 7123(d) into the 
     CAA would allow the OCWR Board to authorize the OCWR General 
     Counsel to seek appropriate temporary relief in the same 
     manner and under the same circumstances. In the Board's view, 
     the grant of authority to the OCWR General Counsel to seek 
     appropriate temporary relief under the CAA would, as has 
     proven to be in the executive branch, operate as a strong 
     disincentive for parties in the legislative branch to engage 
     in protracted administrative proceedings at the taxpayers' 
     expense while continuing to engage in ULPs.\1\
     Amend the Confidentiality Provisions of the CAA to Exclude 
         Proceedings under the FSLMRS and the Public Access 
         Provisions of the Americans with Disabilities Act (ADA) 
         (CAA Sections 210 and 220)
       The general confidentiality provisions of the CAA that 
     govern administrative hearings and deliberations are set 
     forth at section 416 of the Act. 2 U.S.C. Sec. 1416. They 
     currently provide in relevant part that ``all proceedings and 
     deliberations of hearing officers and the Board, including 
     any related records, shall be confidential. This subsection 
     shall not apply to proceedings under section 1341 of this 
     title [concerning proceedings under the Occupational Safety 
     and Health Act of 1970 (OSHAct)], but shall apply to the 
     deliberations of hearing officers and the Board under that 
     section.'' Congress excluded proceedings under the OSHAct 
     from these confidentiality provisions because it determined 
     that the public interest in transparency concerning safety 
     and health proceedings on Capitol Hill outweighed any value 
     in keeping them confidential.
       The Board believes that the public interest in transparency 
     outweighs any value in confidentiality for proceedings under 
     the ADA public access provisions and the labor-management 
     provisions of the CAA. 2 U.S.C. Sec. Sec. 1331, 1351. Unlike 
     the individual employment matters covered by Part A of 
     subchapter II of the CAA where there is undoubtedly value in 
     keeping individual personnel disputes confidential, the 
     matters covered by Parts B (ADA public access), C 
     (occupational safety and health), and D (labor-management 
     relations) primarily involve institutional and public 
     concerns with maintaining facilities, policies, and programs 
     that are safe, healthful, accessible, and free from ULPs. The 
     current lack of transparency undermines the public's 
     confidence that those statutory mandates are being fully 
     enforced, encourages protracted litigation at taxpayer 
     expense, and discourages voluntary compliance.
       Accordingly, the Board recommends that section 416 of the 
     CAA be amended to exclude from its confidentiality 
     provisions, proceedings under the FSLMRS and the public 
     access provisions of the ADA. This could be accomplished by 
     amending the second sentence in CAA section 416(b) as 
     follows: ``This subsection shall not apply to proceedings 
     under sections 1331, 1341, and 1351 of this title, but shall 
     apply to deliberations of hearing officers and the Board 
     under these sections.''
     Amend the Voluntary Mediation Provisions of the CAA's 
         Administrative Dispute Resolution (ADR) Procedures to 
         Require Mediation upon Request of the Claimant
       Prior to the CAA Reform Act, the CAA's ADR procedures 
     required, among other things, that an employee file a request 
     for mediation with the OCWR as a jurisdictional prerequisite 
     to filing a complaint with the OCWR or in the U.S. District 
     Court. Further, the CAA provided that the mediation period 
     ``shall be 30 days,'' which could be extended upon the joint 
     request of the parties.
       As a result of the CAA Reform Act amendments, however, 
     mediation is no longer mandatory--rather, mediation takes 
     place only if requested and only if both parties agree. 2 
     U.S.C. Sec. 1403. This change from mandatory to voluntary 
     mediation was enacted amid concerns that the mandatory 
     mediation process could serve to delay the availability of 
     statutory relief for victims of harassment or other conduct 
     prohibited by the CAA. Concerns were also expressed that 
     employees could view the mandatory mediation process as 
     intimidating--especially those who are unrepresented by 
     counsel in mediation but who face an employing office 
     represented by legal counsel. The amendment was also enacted 
     amid consensus that mediation is most successful when 
     claimants feel comfortable and adequately supported in the 
     process.
       The Board continues to view mediation as a valuable option 
     available to settle disputes under the CAA. The OCWR's 
     experience over many years has been that a large percentage 
     of controversies have been 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.
       The Board is concerned, however, that the CAA Reform Act 
     amendments requiring the consent of both parties to mediation 
     effectively gives the employing offices a veto over claimants 
     who wish to attempt to settle their claims with the 
     assistance of an OCWR mediator. None of the concerns 
     expressed at the time the CAA Reform Act was passed warrant 
     such a result. Moreover, none of the policies underlying 
     mediation are furthered when an employee's request for 
     mediation is effectively denied by the employing office. 
     Further, there is no indication that an employing office 
     would be adversely affected if it were required to 
     participate in mediation when it is requested by the 
     claimant. Requiring mediation upon the request of a claimant 
     will maximize the chances of achieving a voluntary settlement 
     that best meets the needs of all parties to the dispute.
       Accordingly, the Board recommends that the CAA be amended 
     to provide that mediation take place if requested by the 
     claimant, or if requested by the employing office and agreed 
     to by the claimant.
     Protect Employees Who Serve on Jury Duty (28 U.S.C. 
         Sec. 1875)
       Section 1875 of title 28 of the U.S. Code provides that no 
     employer shall discharge, threaten to discharge, intimidate, 
     or coerce any permanent employee by reason of such employee's 
     jury service, or the attendance or scheduled attendance in 
     connection with such service, in any court of the United 
     States. This section currently does not cover legislative 
     branch employment. For the reasons set forth in the 1996, 
     1998, 2000, 2006, and 2019 Section 102(b) Reports, the Board 
     recommends that the rights and protections against 
     discrimination on this basis should be applied to covered 
     employees and employing offices within the legislative 
     branch.
     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, 2006, and 2019 
     Section 102(b) Reports, the Board advises that the rights and 
     protections against discrimination on this basis should be 
     applied to covered employees and employing offices within the 
     legislative branch.

[[Page S904]]

  

     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, 2006, and 2019 Section 102(b) 
     Reports, the Board recommends that the rights and protections 
     against discrimination on this basis should be applied to 
     covered employees and 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 their lack of 
     whistleblower protections. The absence of specific statutory 
     protection against reprisal such as that provided under 5 
     U.S.C. Sec. 2302(b)(8) chills the disclosure of vital 
     information in the public interest to guard against 
     legislative branch mismanagement and abuse. 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, the Board recommends that the Office 
     be granted investigatory and prosecutorial authorities 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 
     reprisals in the executive branch.
     Provide Subpoena Authority to Obtain Information Needed for 
         Safety and Health Investigations and Require Records to 
         Be Kept of Workplace Injuries and Illnesses
       The CAA applies the broad protections of section 5 of the 
     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 continues to recommend that legislative branch 
     employing offices be subject to the investigatory subpoena 
     provisions contained in OSHAct section 8(b) and that 
     legislative branch employing offices be required to maintain 
     records of workplace injuries and illnesses under OSHAct 
     section 8(c), 29 U.S.C. Sec. 657(c), in the interests of the 
     safety and health of legislative branch employees.
     Adopt Recordkeeping Requirements under Federal Workplace 
         Rights Laws
       The Board has recommended in several Section 102(b) 
     Reports, 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.
     Approve the Board's Pending ADA Public Access Regulations
       The CAA directs the OCWR Board 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 issue substantive 
     regulations to achieve parity, unless there is good cause 
     shown to deviate from the private sector or executive branch 
     regulations. Pursuant to section 304 of the CAA, 2 U.S.C. 
     1384, the procedure for proposing and approving substantive 
     regulations provides that: (1) the Board of Directors 
     proposes substantive regulations and publishes a general 
     notice of proposed rulemaking in the Congressional Record; 
     (2) there be a comment period of at least 30 days after the 
     date of publication of the general notice of proposed 
     rulemaking; (3) after consideration of comments by the Board 
     of Directors, the Board adopts regulations and transmits 
     notice of such action (together with the regulations and a 
     recommendation regarding the method for congressional 
     approval of the regulations) to the Speaker of the House and 
     President Pro Tempore of the Senate for publication in the 
     Congressional Record; (4) there be committee referral and 
     action on the proposed regulations by resolution in each 
     House, concurrent resolution, or by joint resolution; and (5) 
     there be final publication of the approved regulations in the 
     Congressional Record, with an effective date prescribed in 
     the final publication.
       The Board recommended in its 2019 Section 102(b) Report to 
     the 116th Congress that Congress approve the Board's pending 
     regulations that would implement titles II and III of the ADA 
     in the legislative branch. The Board again recommends in this 
     Report that Congress approve its adopted regulations.
       Public access to Capitol Hill and constituent access to 
     district and state offices have long been congressional 
     hallmarks of our democracy. The Board's ADA regulations, 
     which await Congressional approval, further ensure that 
     continued access. 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 
     OCWR has made significant progress toward 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 Capitol Hill complex 
     for the visiting public.
     Approve the Board's Pending FMLA and USERRA Regulations When 
         They Are Resubmitted to Congress
       The Board also recommended in its Section 102(b) Report to 
     the 116th Congress that Congress approve its pending 
     regulations to implement the Family and Medical Leave Act 
     (FMLA) and the Uniformed Services Employment and Reemployment 
     Rights Act (USERRA). As discussed below, however, further 
     legislative developments, including the enactment of the CAA 
     of 1995 Reform Act of 2018, Pub. L. No. 115-397, and Federal 
     Employee Paid Leave Act (FEPLA) (subtitle A of title LXXVI of 
     division F of the National Defense Authorization Act for 
     Fiscal Year 2020, Public Law 116-92, December 20, 2019), have 
     and will necessitate further amendments of these regulations, 
     which the Board will resubmit to Congress for approval.
     THE BOARD's FMLA REGULATIONS
       On June 22, 2016, the Board adopted and submitted for 
     publication in the Congressional Record additional amendments 
     to its substantive regulations regarding the FMLA. 162 Cong. 
     Rec. H4128-H4168, S4475-S4516 (daily ed. June 22, 2016). The 
     2016 amendments provided needed clarity on certain aspects of 
     the FMLA. First, they added the military leave provisions of 
     the FMLA, enacted under the National Defense Authorization 
     Acts for Fiscal Years 2008 and 2010, Pub. L. 110-181, Div. A, 
     Title V 585(a)(2), (3)(A)-(D) and Pub. L. 111-84, Div. A, 
     Title V 565(a)(1)(B) and (4), which extended the availability 
     of FMLA leave to family members of the regular armed forces 
     for qualifying exigencies arising out of a servicemember's 
     deployment. They also defined those deployments covered under 
     these provisions, extended FMLA military caregiver leave for 
     family members of current servicemembers to include an injury 
     or illness that existed prior to service and was aggravated 
     in the line of duty while on active duty, and extended FMLA 
     military caregiver leave to family members of certain 
     veterans with serious injuries or illnesses. Second, the 
     amendments set forth the revised definition of ``spouse'' 
     under the FMLA in light of the Department of Labor's February 
     25, 2015 Final Rule on the definition of spouse, and the 
     United States Supreme Court's decision in Obergefell, et al., 
     v. Hodges, 135 S. Ct. 2584 (2015), 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.
       Congress has not yet acted on the Board's request for 
     approval of these 2016 amendments. However, on December 20, 
     2019, it enacted the FEPLA, which further amended the FMLA to 
     allow most civilian federal employees, including eligible 
     employees in the legislative branch, to substitute up to 12 
     weeks of paid parental leave for unpaid FMLA leave granted in 
     connection with the birth of an employee's son or daughter or 
     for the placement of a son or daughter with an employee for 
     adoption or foster care. Further modifications of the Board's 
     substantive regulations are therefore necessary in order to 
     bring existing legislative branch FMLA regulations (issued 
     April 19, 1996) in line with these recent statutory changes.
       Accordingly, on November 16, 2020, the OCWR Board issued a 
     Notice of Proposed

[[Page S905]]

     Rulemaking and request for comments from interested parties, 
     which concerns additional proposed amendments to the Board's 
     substantive FMLA regulations to implement FEPLA. The Board 
     also proposed to amend these regulations to update references 
     to the OCWR's current administrative dispute resolution 
     procedures, which were significantly amended by the CAA of 
     1995 Reform Act of 2018. The comment period ended 30 days 
     from the date of publication of the Board's notice in the 
     Congressional Record, i.e., on December 17, 2020. The Board 
     is currently reviewing the comments it received and is 
     preparing its Notice of Adopted Rulemaking for publication in 
     the Congressional Record. The Board's Notice of Adopted 
     Rulemaking will also constitute the resubmission for 
     congressional approval of its 2016 amendments to its 
     substantive FMLA regulations discussed above. Congressional 
     approval of the Board's adopted FMLA regulations when they 
     are resubmitted will be critical to implementing these 
     expanded family and medical leave protections in the 
     legislative branch.
     THE BOARD's USERRA REGULATIONS
       On December 3, 2008, the OCWR Board of Directors adopted 
     USERRA regulations to apply to the legislative branch. These 
     regulations support our nation's veterans by requiring 
     continuous health care insurance and job protections for the 
     men and women of the armed services who have supported our 
     country's freedoms. They signal a commitment to anti-
     discrimination, anti-retaliation, and job protections under 
     USERRA.
       Those regulations, transmitted to Congress over 10 years 
     ago, have not yet been approved. As with the Board's FMLA 
     regulations, however, it has become necessary to make 
     additional amendments to these regulations to update 
     references to the OCWR's current administrative dispute 
     resolution procedures that were significantly amended by the 
     CAA of 1995 Reform Act of 2018.
       Approving the USERRA regulations when they are resubmitted 
     for approval will assist servicemembers in attaining and 
     retaining a job despite the call to duty. 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 2-3 
     percent or less.
       Congress has long focused on issues concerning the health, 
     welfare, accessibility, and employment status of veterans on 
     Capitol Hill. For example, 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 office of the Chief Administrative Officer of the U.S. 
     House of Representatives 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. Further, Public Law No. 
     115-364, signed into law in 2018, makes clear that disabled 
     veterans in the legislative branch are covered under the 
     provisions of the Wounded Warrior Act. As such, they may 
     receive wounded warrior leave during their first year in the 
     workforce for treatment for their service-connected 
     disabilities.
       An extension of these laudable efforts in support of our 
     veterans 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 continued 
     congressional commitment to the laws of the CAA--which passed 
     in 1995 with nearly unanimous bicameral and bipartisan 
     support--but would ensure the effective implementation of the 
     laws' workplace protections and benefits on behalf of the 
     legislative branch workforce.

                                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. On December 21, 2018, as 
     we were in the process of finalizing the Section 102(b) 
     Report for the 116th Congress, the CAA of 1995 Reform Act, S. 
     3749, was signed into law. As discussed in that 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 continue to evaluate the efficacy of the new 
     Reform Act procedures before revisiting the issue of whether 
     the OCWR General Counsel should be granted such investigatory 
     and prosecutorial authority. Accordingly, this recommendation 
     is not discussed further in this Report.

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