[Congressional Record Volume 170, Number 187 (Tuesday, December 17, 2024)]
[Senate]
[Pages S7089-S7093]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BIENNIAL REPORT FROM THE OFFICE OF CONGRESSIONAL WORKPLACE RIGHTS
The PRESIDING OFFICER. The majority leader.
Mr. SCHUMER. Mr. President, I ask unanimous consent to have printed
in the record the biennial report from the Office of Congressional
Workplace Rights.
There being no objection, the material was ordered to be printed in
the Record, as follows:
BIENNIAL REPORT OF THE BOARD OF DIRECTORS OF THE OFFICE OF
CONGRESSIONAL WORKPLACE RIGHTS
U.S. Congress, Office of Congressional Workplace Rights,
Washington, DC, December 17, 2024.
Hon. Patty Murray,
President pro tempore, U.S. Senate,
Washington, DC.
Re Biennial Report from the Office of Congressional Workplace
Rights
Dear Madam 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 the applicability of Federal
workplace rights, safety and health, and public access laws
and regulations to the legislative branch. 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 119th Congress. The Board welcomes
discussion on these issues and urges 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 Committee on Rules and
Administration as the committee of the U.S. Senate with
jurisdiction.
Sincerely,
Martin J. Crane,
Executive Director,
Office of Congressional Workplace Rights.
Attachment.
BIENNIAL REPORT OF THE BOARD OF DIRECTORS OF THE OFFICE OF
CONGRESSIONAL WORKPLACE RIGHTS
RECOMMENDATIONS FOR IMPROVEMENTS TO THE CONGRESSIONAL ACCOUNTABILITY
ACT
Required by Section 102(b) of the Congressional Accountability Act
Issued at the Conclusion of the 118th Congress for Consideration by the
119th Congress
EXECUTIVE SUMMARY
The Office of Congressional Workplace Rights (OCWR) Board
of Directors submits this report to Congress pursuant to
section 102(b) of the Congressional Accountability Act (CAA).
In accordance with the CAA, the Board is to provide each
Congress with recommendations regarding the applicability to
the legislative branch of federal workplace rights, safety
and health, and public access laws and regulations. The
Board's fulfillment of this requirement provides Congress
with information and recommendations necessary to ensure
parity between the rights and protections applied to the
legislative branch and those applied to the executive branch
and the private sector.
Currently executive branch and private employees have
protections and rights that legislative branch employees do
not have. In this report, the Board addresses and recommends
changes to the CAA's substantive protections and obligations
and to the necessary implementing procedures and regulations.
Adoption of these recommendations would ensure that Congress
meets the goal that it set for itself: to apply to the
legislative branch those workplace rights and obligations
that it has applied to the executive branch and the private
sector. The following is a summary of the Board's
recommendations:
Create Parity with the Executive Branch and the Private
Sector
Require legislative branch offices to maintain records of
workplace injuries and illnesses.
Provide comparable parental bereavement leave for
legislative branch employees.
Provide comparable nursing protections for legislative
branch employees.
Provide comparable religious compensatory time for all
legislative branch employees.
Provide comparable whistleblower protections to legislative
branch employees.
[[Page S7090]]
Provide comparable protections from retaliation for non-
employees under the CAA's Americans with Disabilities Act
(ADA) public access provisions.
Provide comparable protections for legislative branch
employees who serve on jury duty, declare bankruptcy, or have
their wages garnished.
Require legislative branch offices to maintain records
required under other federal workplace rights laws.
Improve Implementation of Existing Rights to Ensure Parity
Empower the OCWR General Counsel to seek a court order to
temporarily enjoin unfair labor practices.
Allow disclosure of proceedings involving disability-
related public access and labor-management issues.
Approve pending OCWR regulations in the legislative branch,
including:
Fair Labor Standards Act regulations related to overtime
pay.
Family and Medical Leave Act regulations related to paid
parental leave and leave benefits for servicemembers and
their families.
Federal Service Labor-Management Relations Statute
regulations related to collective bargaining in the
legislative branch.
Uniformed Services Employment and Reemployment Rights Act
regulations related to workplace protections for
servicemembers.
Americans with Disabilities Act regulations related to
public access to facilities.
Fair Chance to Compete for Jobs Act regulations related to
protections for job applicants in the legislative branch.
More information about the Board's recommendations can be
found on OCWR's website at www.ocwr.gov.
STATEMENT FROM THE BOARD OF DIRECTORS
In 2025, the Office of Congressional Workplace Rights
(OCWR) celebrates the 30th anniversary of the passage of the
Congressional Accountability Act (CAA), which was enacted by
Congress in 1995 with nearly unanimous approval. This
milestone anniversary marks the establishment of OCWR and
reflects the steadfast commitment of Congress to the American
public that it will apply to itself labor, employment,
accessibility, and health and safety laws on par with those
that apply to the executive branch and the private sector.
This commitment is an ongoing one. To ensure that it
continues to be fulfilled, section 102 of the CAA, 2 U.S.C.
Sec. 1302, requires the Board of Directors of OCWR to issue a
report to each Congress that describes: (1) to what degree
such provisions of federal law are applicable or inapplicable
to the legislative branch; and (2) whether any inapplicable
provisions should be made applicable.
The Board believes that now is the time to celebrate the
many accomplishments that Congress has made in the area of
workplace rights and to acknowledge the many recommendations
in previous Section 102(b) Reports that Congress has adopted.
However, much work remains. We highlight in this Section
102(b) Report additional recommendations for amendments to
the CAA to apply to the congressional workplace employee
protections applicable to the executive branch or the private
sector, as well as key recommendations that the Board has
made in past Section 102(b) Reports that have not yet been
implemented.
On the eve of this historic milestone, we are pleased to
submit to Congress these 2024 biennial recommendations for
amendments to the CAA. We welcome the opportunity to further
discuss these recommendations and ask for careful
consideration of them by the 119th Congress.
Sincerely,
Barbara Childs Wallace,
Chair, Board of Directors.
Barbara L. Camens,
Alan V. Friedman,
Roberta L. Holzwarth,
Susan S. Robfogel,
Members.
RECOMMENDATIONS FOR THE 119th CONGRESS
I. Create Parity with the Executive Branch and the Private
Sector
A. Require Legislative Branch Offices to Maintain Records of
Workplace Injuries and Illnesses to Ensure Workplace
Safety
The Board has long recommended amending the CAA to apply
the critical recordkeeping requirements of the Occupational
Safety and Health Act (OSH Act) to the congressional
workplace. Under the CAA, Congress and its instrumentalities
are exempt from critical OSH Act requirements that apply to
the private sector, including section 8(c) of the OSH Act
which requires employers to make, keep and preserve, and
provide, upon request, records necessary and appropriate for
the enforcement of the OSH Act (29 U.S.C. Sec. 657(c)).
In enacting the OSH Act, Congress recognized that ``[f]ull
and accurate information is a fundamental precondition for
meaningful administration of an occupational safety and
health program.'' \1\ Congress observed that a recordkeeping
requirement should be included in that legislation because
``the Federal government and most of the states have
inadequate information on the incidence, nature, or causes of
occupational injuries, illnesses, and deaths.'' \2\
Without access to such information, OCWR is unable to
effectively enforce several critical safety and health
standards within the legislative branch. For example,
substantive occupational safety and health standards
concerning asbestos in the workplace, providing employees
with safety information regarding hazardous chemicals in
their workspaces, and emergency response procedures in the
event of the release of hazardous chemicals all rely on
accurate recordkeeping to ensure that employees are not
exposed to hazardous materials or conditions. But because the
CAA does not contain section 8(c)'s recordkeeping
requirements, employing offices may contend that they are not
required to maintain or submit such records to OCWR for
review.
Moreover, without the benefit of section 8(c) authority,
OCWR is also hampered in its ability to access records needed
to develop information regarding the causes and prevention of
occupational injuries and illnesses. As the Department of
Labor recognized, ``Analysis of the data is a widely
recognized method for discovering workplace safety and health
problems and tracking progress in solving these problems.''
\3\
Recordkeeping improves safety. When conducting inspections
of employers in the private sector, inspectors routinely
request to view records of workplace injuries and illnesses
at the outset of the inspection. This helps inspectors
improve the focus of their inspection. For instance, if the
records contain multiple instances of a particular type of
injury, this may indicate to the inspector to investigate
specific equipment and work processes that may have given
rise to those injuries. Relatedly, if the records show that
multiple employees have experienced similar work-related
illnesses, this may indicate to the inspector a possible
exposure to a hazardous substance in the workplace. In short,
these records help inspectors determine which hazards may
exist in the workplace and whether different controls or
personal protective equipment (PPE) might reduce injuries and
illnesses.
Because Congress is exempt from these recordkeeping
requirements, OCWR occupational safety and health (OSH)
inspectors--who are statutorily charged with annually
inspecting the congressional campus to ensure workplace
safety--are dependent on voluntary reporting by employees and
employing offices to determine the types of injuries or
illnesses that congressional workplaces are experiencing.
From OCWR's experience, voluntary reporting is often
insufficient to produce a comprehensive record of incidents.
The consequences of a lack of recordkeeping requirements
were demonstrated during OCWR's investigation of occupational
safety and health concerns arising out of the events of
January 6, 2021. As an essential part of OCWR's OSH
investigation of the events that day, the OCWR Office of the
General Counsel requested that the USCP identify the types
and causes of injuries sustained by United States Capitol
Police (USCP) officers. However, because the USCP was not
required to maintain a list of employees injured under the
provisions of the OSH Act, as applied by the CAA, the
information provided by the USCP was so lacking in detail,
particularly as to the specific causes of the described
injuries, that it was impossible for the General Counsel to
determine precisely how each of these employees were
injured.\4\ As a result, OCWR's ability to prescribe
appropriate remedies to keep the congressional workplace safe
was severely hampered.
Accordingly, the Board again strongly recommends--as it has
for years--that legislative branch employing offices be
required to maintain records of workplace injuries and
illnesses under OSH Act section 8(c). As demonstrated from
experience, workplace injury and illness recordkeeping is
essential to ensuring safety and health in the congressional
workplace.
B. Provide Comparable Parental Bereavement Leave for
Legislative Branch Employees
The National Defense Authorization Act for Fiscal Year 2022
amended the provisions of the Family and Medical Leave Act
(FMLA) to establish a new paid leave category for most
federal civilian employees, which was codified in title 5
FMLA (5 U.S.C. Sec. 6329d). Under section 6329d, executive
branch employees are entitled to 2 workweeks of paid parental
bereavement leave in connection with the death of an
employee's child.
However, because legislative branch employees are not
governed by the provisions of title 5 FMLA, but are instead
covered by title 29 FMLA, as applied by the CAA, they are not
covered by this important workplace benefit.
The Board recommends that the CAA be amended to provide
paid parental bereavement leave for legislative branch
employees. Such an amendment would help balance work and
family responsibilities by allowing employees to take
reasonable paid leave in the catastrophic circumstance of the
death of a child and would ensure parity between the
legislative and executive branches.
C. Provide Comparable Nursing Protections for Legislative
Branch Employees
In December 2022, Congress passed into law the Consolidated
Appropriations Act, 2023 (H.R. 2617), which included the
language of the Providing Urgent Maternal Protections for
Nursing Mothers Act (or ``PUMP for Nursing Mothers Act'').
The PUMP Act amended the Fair Labor Standards Act (FLSA) to
expand protections for nursing employees. These employees are
now entitled to reasonable break time and a private space to
pump at work for up to 1 year after their child's birth.
[[Page S7091]]
Under the CAA, only certain sections of the FLSA apply to
the legislative branch--specifically, sections 206, 207, and
212. Prior to the adoption of the PUMP Act, protections for
nursing employees were included in section 207(r) of the
FLSA. The PUMP Act struck section 207(r) and created a new
section--section 218d--to contain the expanded protections.
In striking section 207(r) from the FLSA and failing to amend
the CAA to apply section 218d to the legislative branch,
Congress removed the existing protections for legislative
branch employees and failed to provide them the new
protections.
Since 2022, Congress has introduced several technical
amendment bills to apply the PUMP Act protections to the
legislative branch.\5\ The Board believes that the
protections of the PUMP Act should apply to legislative
branch employees and urges Congress to amend the CAA so that
section 218d of the FLSA applies to the legislative branch.
Such an amendment would ensure that the rights and
protections of nursing employees in the legislative branch
are equivalent to those of nursing employees in the executive
branch and the private sector.
D. Provide Comparable Religious Compensatory Time for all
Legislative Branch Employees
In 1978, to further the free exercise of religious beliefs
by federal employees, Congress amended title 5 of the U.S.
Code to establish a system of religious compensatory time off
(5 U.S.C. Sec. 5550a). Section 5550a requires executive
agencies, military departments, judicial branch agencies, the
Library of Congress, the Botanic Garden, the Office of the
Architect of the Capitol, and the government of the District
of Columbia to allow employees whose personal religious
beliefs require them to abstain from work at certain times of
the workday or workweek to work alternate work hours so that
the employees can meet their religious obligations.
Although some legislative branch employees are covered by
section 5550a, a substantial number--including those who work
in offices in the House and Senate, the Congressional Budget
Office (CBO), the Government Publishing Office (GPO), and
OCWR--are not. As a result, a substantial number of
legislative branch employees are not currently entitled to
section 5550a's benefits and protections, despite the intent
of Congress that section 5550a benefit all federal
employees.\6\
The Board recommends that Congress amend the CAA to include
section 5550a, thereby providing parity to all legislative
branch employees regarding their ability to work alternate
work hours so that they can meet their religious obligations.
Such an amendment would enable legislative branch employees,
especially those of minority faiths, to exercise their
religious beliefs without being forced to lose a portion of
their pay or use annual or other leave. And it would help
ensure that all legislative branch employees ``are treated
equally, regardless of their religion, and to make sure that
no [legislative branch] employee is discriminatorily or
unnecessarily penalized because of their devotion to their
faith.'' \7\
E. Provide Comparable Whistleblower Protections to
Legislative Branch Employees
Federal law provides broad employment protections to
executive branch employees who disclose information that the
whistleblower reasonably believes evidences (1) a violation
of any law, rule, or regulation; (2) gross mismanagement; (3)
gross waste of funds; (4) abuse of authority; or (5) a
substantial and specific danger to public health and
safety.\8\ However, there are no analogous protections for
legislative branch employees, even for those who would raise
an issue with a committee of jurisdiction or other
appropriate legislative branch official. This lack of
statutory protection leaves legislative branch employees, who
would otherwise provide critical information, at risk for
retaliation. The absence of whistleblower protections also
risks depriving Congress of information it needs to oversee
the entirety of the legislative branch in the public
interest.
Statutory protections for legislative branch employees who
disclose evidence of wrongdoing must be carefully drafted in
light of the special constitutional role of Congress as the
nation's forum for robust policy debate. To be effective,
such protections must respect important legislative branch
prerogatives, accommodate the need for confidentiality during
congressional deliberations, and, more generally, protect the
necessary confidentiality of sensitive information handled in
many contexts across the legislative branch. Effective
whistleblower protections must account for the wide range of
workplace environments and job functions, from librarians to
landscapers to law enforcement officers to committee staff,
and accommodate the concerns unique to each position.
To achieve these important ends, the Board recommends that
Congress amend the CAA to protect and provide parity to
legislative branch employees who make whistleblower
disclosures to officials or entities specifically designated
to receive such disclosures, such as an instrumentality's
Inspector General or an appropriate committee of
jurisdiction. This approach would parallel laws in the
executive branch designed to protect whistleblowers who work
in special environments, who must also follow specific
procedures to make protected disclosures to designated
individuals or entities through designated channels.\9\
To facilitate compliance with the recommended whistleblower
protections, the Board further recommends that OCWR be
granted investigatory and prosecutorial authority over
whistleblower reprisal complaints, by incorporating into the
CAA authority analogous to that granted to the Office of
Special Counsel for executive branch claims.
F. Provide Comparable Protections from Retaliation for Non-
Employees under the CAA's ADA Public Access Provisions
The Americans with Disabilities Act of 1990 (ADA) is unique
among the laws applied by the CAA as it affords protections
to members of the public as well as to employees. The rights
and protections for the public are found in section 210 of
the CAA (2 U.S.C. Sec. 1331), which incorporates titles II
and III of the ADA. Section 210 requires that legislative
branch employing offices make their public services,
programs, and activities--as well as the facilities where
these services, programs, and activities are provided--
accessible to individuals with disabilities.
Section 208 of the CAA, 2 U.S.C. Sec. 1317, prohibits
employing offices from intimidating, retaliating against, or
discriminating against employees who exercise their rights
under the CAA. However, section 208 does not authorize ADA
retaliation claims by members of the public who are not
covered employees.
Section 503 of the ADA (42 U.S.C. Sec. 12203) prohibits
retaliation, interference, coercion, or intimidation against
``any individual'' relating to exercising their rights under
the ADA's public access provisions. Although section 503
covers both the public and private sectors, that section is
not incorporated by the CAA, and thus does not apply to the
legislative branch. Therefore, non-employee members of the
public are unable to bring ADA retaliation claims under the
CAA.
This parity gap is contrary to the purpose of the CAA and
deters members of the public with disabilities from asserting
their rights under the ADA in the legislative branch.
Accordingly, the Board recommends that the CAA be amended to
incorporate the ADA's section 503 anti-retaliation
provisions.
G. Provide Comparable Protections for Legislative Branch
Employees Who Serve on Jury Duty
Jury duty is a fundamental civic responsibility. 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 employees. For the reasons set forth in several
previous Section 102(b) Reports, the Board continues to
recommend that the rights and protections against
discrimination on this basis should be applied to covered
employees and employing offices within the legislative
branch.
H. Provide Comparable Protections for Legislative Branch
Employees and Applicants who are or have been in
Bankruptcy
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 several previous Section 102(b)
Reports, the Board continues to recommend that the rights and
protections against discrimination on this basis should be
applied to covered employees and employing offices within the
legislative branch.
I. Provide Comparable Protections for Legislative Branch
Employees who are or have been Subject to Garnishment
Section 1674(a) of title 15 of the U.S. Code prohibits
terminating an employee because their wages have been
garnished. This section is currently limited to private
employers. For the reasons set forth in several previous
Section 102(b) Reports, the Board continues to recommend that
the rights and protections against discrimination on this
basis should be applied to covered employees and employing
offices within the legislative branch.
J. Require Legislative Branch Offices to Maintain Records
Required under other Federal Workplace Rights Laws
The Board has also recommended in previous 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. Records can
greatly assist in the speedy resolution of claims. Moreover,
both employers and employees benefit from the retention of
documented personnel actions. Employers can use records as
critical evidence to demonstrate that no violation has
occurred, while employees can use records as critical
evidence to assert their rights.
II. Improve Implementation of Existing Rights to Ensure
Parity
A. Empower the OCWR General Counsel to Seek a Court Order to
Temporarily Enjoin Unfair Labor Practices
Section 220 of the CAA (2 U.S.C. Sec. 1351) applies certain
provisions of the Federal Service Labor-Management Relations
Statute (FSLMRS) to the legislative branch. In general, the
OCWR General Counsel exercises
[[Page S7092]]
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, including
the authority to investigate allegations of workplace unfair
labor practices (ULPs) and to file and prosecute complaints
regarding ULPs.
The CAA, however, does not incorporate the provisions of 5
U.S.C. Sec. 7123(d), which allows parties to ULP proceedings
in the executive branch to request the FLRA General Counsel
to seek appropriate temporary relief, including the issuance
of a temporary restraining order. This important statutory
provision in the FSLMRS allows the FLRA General Counsel to
seek, in appropriate cases when a ULP complaint is issued,
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 a ULP is being committed.
Granting the OCWR General Counsel the authority to seek
appropriate temporary injunctive relief would protect parties
from irreparable harm during ULP litigation.\10\
B. Allow Disclosure of Proceedings Involving Disability-
Related Public Access and Labor-Management Issues
The CAA generally requires confidentiality in proceedings
before OCWR to protect the privacy of individuals. However,
Congress excluded proceedings under the OSH Act from these
confidentiality provisions because it determined that the
public interest in transparency concerning safety and health
on Capitol Hill outweighed any value in keeping them
confidential.
As with OSH Act proceedings, proceedings involving ADA
public access and labor-management issues primarily involve
public and institutional concerns, as well as concerns on the
part of key stakeholders to labor-management relationships,
with maintaining facilities, policies, and programs that are
safe, healthful, accessible, and free from ULPs. The current
lack of transparency in these matters is unnecessary to
protect individual privacy and undermines the confidence of
the public and of central stakeholders that those statutory
mandates are being fully enforced.
Accordingly, section 416 of the CAA (2 U.S.C. Sec. 1416)
should be amended to eliminate these unnecessary
confidentiality restrictions and provide transparency to the
public and to key stakeholders.
C. Approve Pending OCWR Regulations
Congress has not approved several substantive OCWR Board
regulations necessary to fully implement workplace
protections made applicable to legislative branch employees
by the CAA.
As discussed below, the regulations that have been approved
for the House but are awaiting congressional approval for the
Senate and other employing offices in the legislative branch
are the Board's (1) updated regulations concerning overtime
pay; (2) updated regulations concerning paid parental leave
and leave benefits for servicemembers and their families; and
(3) regulations concerning collective bargaining.
The regulations awaiting congressional approval for all
employing offices in the legislative branch are the Board's
(1) regulations concerning employment and reemployment
protections for servicemembers and their families; (2)
amended regulations concerning the access rights of members
of the public with disabilities; and (3) proposed regulations
concerning protections for job applicants in the legislative
branch.
The Board urges Congress to approve these regulations.
Fair Labor Standards Act (FLSA) Regulations
The CAA's FLSA provisions provide for minimum wage and
overtime compensation for certain legislative branch
employees.\11\ If nonexempt, these employees are entitled to
overtime compensation when working over 40 hours in a
workweek.
The FLSA's overtime exemptions are not defined in the FLSA
itself but by regulations issued by the Secretary of
Labor.\12\ Through the CAA, Congress requires that OCWR's
FLSA regulations substantially mirror regulations issued by
the Secretary of Labor. Congress last approved OCWR
regulations implementing the FLSA in 1996. Since that time,
as the Secretary of Labor has updated its overtime
regulations, OCWR has updated its regulations to reflect the
Secretary's changes. The last such update was in September
2022, when OCWR revised its FLSA regulations to reflect the
Secretary's substantial increase in the minimum salary test
used to determine who may be exempt from overtime
protections.\13\
In December 2022, the House of Representatives, by
resolution, approved the Board's amended FLSA regulations,
thereby applying them to House employees and offices.\14\ The
Senate must take similar action to apply those regulations to
Senate offices and employees. Full approval by both houses is
necessary to make these regulations applicable to legislative
branch employees of instrumentalities, including the Library
of Congress (LOC) and the USCP.
Until the 2022 OCWR regulations are fully approved by
Congress, many covered employees in the legislative branch
may be denied the overtime pay to which they would be
entitled for comparable work performed in the executive
branch or private sector. Approval of the regulations will
ensure that Congress and the legislative branch at large are
able to attract and retain a talented, motivated, and high-
performing workforce.
Family and Medical Leave Act (FMLA) Regulations
The CAA's FMLA provisions provide rights and protections
for legislative branch employees needing leave for specified
family and medical reasons.\15\ In December 2021, the Board
adopted FMLA regulations to implement recent amendments to
the FMLA and transmitted the regulations to Congress.\16\
These OCWR FMLA regulations would implement FMLA amendments
that (1) provide up to 12 weeks of paid parental leave for
the birth, adoption, or placement in foster care of a child
\17\ and (2) enhance leave benefits for servicemembers and
their families. These regulations would further revise the
definition of ``spouse'' to include same-sex spouses to
remain consistent with Supreme Court precedent and the
Department of Labor's definition in its February 25, 2015
Final Rule.\18\
In December 2022, the House of Representatives, by
resolution, approved the Board's amended FMLA regulations,
thereby applying them to House employees and offices.\19\ As
with the Board's modified FLSA regulations, the Senate must
take similar action in order to apply the modified FMLA
regulations to Senate offices and employees. Full approval by
both houses is needed to make these regulations applicable to
legislative branch employees of instrumentalities.
Federal Service Labor-Management Relations Statute (FSLMRS)
Regulations
Through the CAA, Congress made applicable to the
legislative branch specific sections of the FSLMRS, which
governs unionization and collective bargaining in the
executive branch. In 1996, the Board adopted final
regulations implementing those sections of the FSLMRS in the
legislative branch. That same year, Congress approved these
regulations for certain employees and employing offices
covered by the CAA, such as the Office of the Architect of
the Capitol (AOC) and the USCP.
However, at that time, Congress did not approve
complementary regulations adopted by the OCWR Board necessary
to implement those sections of the FSLMRS for most offices
listed in section 220(e)(2) of the CAA (2 U.S.C. Sec. 1351),
i.e., most offices within the House of Representatives or the
Senate, the Congressional Budget Office (CBO), and OCWR.
In May 2022, the House of Representatives approved the
complementary regulations through a resolution, thereby
extending the labor-management rights and obligations of the
FSLMRS to House employees and offices.\20\ Full approval by
both houses would apply the regulations to employees and
offices in both the House and Senate and to the additional
legislative branch offices listed in section 220(e)(2), and
ensure that the protections afforded by the FSLMRS apply to
the entire legislative branch, similar to how they apply in
the executive branch. Accordingly, the Board urges Congress
to adopt resolutions approving these regulations.
Uniformed Services Employment and Reemployment Rights Act
(USERRA) Regulations
The CAA's USERRA provisions protect servicemembers and
veterans from discrimination on the basis of their service
and allow them to regain their civilian jobs upon return from
service. The Board's USERRA regulations, first transmitted to
Congress over 15 years ago, have not yet been approved. In
April 2023, the Board made minor amendments to its USERRA
regulations and transmitted the amended regulations to
Congress for approval.
Congressional approval of the USERRA regulations would
signal a continued commitment to the welfare of
servicemembers in the legislative branch--where they remain a
significantly underrepresented percentage of the workforce--
by granting them the same workplace protections and
entitlements as servicemembers in the executive branch and
the private sector.
Americans with Disabilities Act (ADA) Public Access
Regulations
The CAA's ADA public access provisions protect the right of
members of the public with disabilities, including
constituents and employees, to accessible facilities,
programs, services, activities, and accommodations in the
legislative branch. In March 2023, the Board made additional
modifications to the pending ADA regulations that it adopted
in 2016 and transmitted the amended regulations to Congress
for approval. In accordance with the CAA, the 2023 amended
ADA regulations incorporate by reference the most recent
comparable regulations issued by the Department of Justice
and the Department of Transportation. If approved by
Congress, these regulations would provide much-needed
guidance both to those charged with the legal duty to provide
accessible services and accommodations, as well as to the
members of the public who have the right to such
accessibility.
Fair Chance to Compete for Jobs Act (FCA) Regulations
The CAA's FCA provisions protect job applicants in the
legislative branch by prohibiting employing offices from
inquiring into an applicant's criminal history record
information prior to a conditional offer of employment. The
FCA, as applied by the CAA, provides that employees who
inquire into an applicant's criminal history record
information in a manner that violates the FCA may
[[Page S7093]]
be subject to discipline including suspensions from
employment and fines.
In June 2024, the Board issued a notice of proposed
rulemaking for its regulations implementing the FCA in the
legislative branch. In early December 2024, the Board
submitted final regulations to Congress for approval. If
approved, these regulations would provide necessary
protections for job applicants in the legislative branch
alleging a violation of the FCA.
Endnotes
1. Senate Report No. 91-1282 (October 6, 1970) respecting
the recordkeeping and records provisions of now Section 8(c)
of the OSH Act.
2. Id. See also Report No. 91-1291 of the House Committee
on Education and Labor, 91st Congress, 2d Session, p.30, to
accompany H.R. 16785 (OSH Act) (``Adequate information is the
precondition for responsible administration of practically
all sections of this bill.'').
3. See ``Detailed Frequently Asked Questions for OSHA's
Injury and Illness Recordkeeping Rule for Federal Agencies,''
https://www.osha.gov/enforcement/fap/
recordkeeping-faqs.
4. Office of the General Counsel, Office of Congressional
Workplace Rights, Special Report: Occupational Safety and
Health Concerns Arising out of the Events of January 6, 2021,
https://www.ocwr.gov/publications/
reports/other-reports/special-report-
occupational-safety-and-health-concerns-
arising-out-of-the-events-of-january-6-2021-july-2-2021/
(citing U.S. Senate, Committee on Homeland Security and
Governmental Affairs and Committee on Rules and
Administration, Examining the U.S. Capitol Attack: A Review
of the Security, Planning, and Response Failures on January
6, Staff Report at 1 (June 8, 2021), https://
www.rules.senate.gov/imo/media/doc/
Jan%206%20HSGAC%20Rules%20Report.pdf. According to the
General Counsel's Special Report, of the approximately 1,200
officers defending the Capitol on January 6, fewer than 300
were equipped with much in the way of PPE.
5. See PUMP Technical Correction Act, S. 2219, 118th Cong.
(2023); PUMP Technical Correction Act, H.R. 3585, 118th Cong.
(2023); Legislative Branch Appropriations Act, 2025, S. 4768,
118th Cong. (2024) (containing the language of the PUMP
technical correction acts).
6. See Comptroller General Decision B-193636 (January 9,
1979) (finding although legislative history indicated
Congress intended benefit to apply to all federal employees,
section 5550a covers only employees of the agencies specified
in section 5550a).
7. 124 Cong. Rec. 15435 (1978).
8. See, e.g., the Whistleblower Protection Act of 1989, 5
U.S.C. Sec. 2302(b)(8), as amended by the Whistleblower
Protection Enhancement Act of 2012, Pub. L. 112-199.
9. See, e.g., the Intelligence Community Whistleblower
Protection Act of 1998, 5 U.S.C. App. Sec. 8H, 50 U.S.C.
Sec. 3033, 50 U.S.C. Sec. 3517; and the FBI Whistleblower
Protection Enhancement Act of 2016, 5 U.S.C. Sec. 2303(a).
10. See, e.g., United States Capitol Police v. Office of
Compliance, 916 F.3d 1023 (Fed. Cir. 2019) (affirming the
Board's determination that the USCP had committed a ULP when
it refused to participate in an arbitration concerning an
officer's termination, where two Federal Circuit Court of
Appeal decisions had already flatly rejected the statutory
interpretation arguments made by USCP that termination
decisions were not subject to arbitration).
11. See at 2 U.S.C. Sec. 1313.
12. See 29 U.S.C. Sec. 213; 29 C.F.R. part 541.
13. The 1996 FLSA regulations exempt from overtime any
employee whose salary (exclusive of board and lodging) is
``not less than $155 per week'' or ``not less than $250 per
week'' if their primary duty involves management of the
employing office and includes the customary and regular
direction of two or more employees. The 2022 OCWR FLSA
regulations pending congressional approval increase the
salary test to not less than $684 per week (exclusive of
board, lodging, or other facilities). See generally, 168
Cong. Rec. H8203, S5148 (Sep. 28, 2022).
14. See H. Res. 1516 (117th Cong. 2022).
15. See 2 U.S.C. Sec. 1312.
16. See 167 Cong. Rec. H7224, S8966 (Dec. 7, 2021).
17. See Federal Employee Paid Leave Act (subtitle A of
title LXXVI of division F of the National Defense
Authorization Act for Fiscal Year 2020, Public Law 116-92,
Dec. 20, 2019).
18. See 162 Cong. Rec. H4128, S4475 (June 22, 2016).
19. See H. Res. 1516 (117th Cong. 2022).
20. See H. Res. 1096 (117th Cong. 2022).
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