[Congressional Record (Bound Edition), Volume 145 (1999), Part 2]
[House]
[Pages 1557-1581]
[From the U.S. Government Publishing Office, www.gpo.gov]




   A REPORT REQUIRED BY THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995

                                                    U.S. Congress,


                                         Office of Compliance,

                                  Washington, DC, January 6, 1999.
     Hon. Dennis Hastert,
     Speaker of the House of Representatives, Washington, DC.
       Dear Mr. Speaker: Section 102(b) of the Congressional 
     Accountability Act of 1995 (CAA) mandates a review and report 
     on the applicability to the legislative branch of federal law 
     relating to terms and conditions of employment and access to 
     public services and accommodations.
       Pursuant to section 102(b)(2) of the CAA, which provides 
     that the presiding officers of the House of Representatives 
     and the Senate shall cause each such report to be printed in 
     the Congressional Record and each report shall be referred to 
     the committees of the House of Representatives and the Senate 
     with jurisdiction, the Board of Directors of the Office of 
     Compliance is pleased to transit the enclosed report.
           Sincerely yours,
                                                    Glen D. Nager,
                                  Chair of the Board of Directors.
       Enclosures.

 Office of Compliance--Section 102(b) Report--Review and Report on the 
  Applicability to the Legislative Branch of Federal Laws Relating to 
 Terms and Conditions of Employment and Access to Public Services and 
                         Public Accommodations

Prepared by the Board of Directors of the Office of Compliance Pursuant 
 to Section 102(b) of the Congressional Accountability Act of 1995, 2 
                 U.S.C. Sec. 1302(b), December 31, 1998


                 glossary of acronyms and defined terms

       The following acronyms and defined terms are used in this 
     Report and Appendices:
     1996 Section 102(b) Report--the first biennial report 
         mandated by Sec. 102(b) of the Congressional 
         Accountability Act of 1995, which was issued by the Board 
         of Directors of the Office of Compliance in December of 
         1996.
     1998 Section 102(b) Report--this, the second biennial report 
         mandated under Sec. 102(b) of the Congressional 
         Accountability Act of 1995, which is issued by the Board 
         of Directors of the Office of Compliance on December 31, 
         1998.
     ADA--Americans with Disabilities Act of 1990, 42 U.S.C. 
         Sec. 12101 et seq.
     ADEA--Age Discrimination in Employment Act of 1967, 29 U.S.C. 
         Sec. 621 et seq.
     ADR--Alternative Dispute Resolution.
     AG--Attorney General.
     Board--Board of Directors of the Office of Compliance.
     CAA--Congressional Accountability Act of 1995, 2 U.S.C. 
         Sec. 1301 et seq.
     CAA laws--the eleven laws, applicable in the federal and 
         private sectors, that are made applicable to the 
         legislative branch by the CAA and are listed in section 
         102(a) of that Act.
     CG--Comptroller General.
     Chapter 71--Chapter 71 of title 5, United States Code.
     DoL--Department of Labor.
     EEO--Equal Employment Opportunity.
     EEOC--Equal Employment Opportunity Commission.
     EPA--Equal Pay Act provisions of the Fair Labor Standards 
         Act, 29 U.S.C. Sec. 206(d).
     EPPA--Employee Polygraph Protection Act of 1988, 29 U.S.C. 
         Sec. 2001 et seq.
     FLRA--Federal Labor Relations Authority.
     FLSA--Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201 et 
         seq.
     FMLA--Family and Medical Leave Act of 1993, 29 U.S.C. 
         Sec. 2611 et seq.
     GAO--General Accounting Office.
     GAOPA--General Accounting Office Personnel Act of 1980, 31 
         U.S.C. Sec. 731 et seq.
     GC--General Counsel. Depending on the context, ``GC'' may 
         refer to the General Counsel of the Office of Compliance 
         or to the General Counsel of the GAO Personnel Appeals 
         Board.
     GPO--Government Printing Office.
     Library--Library of Congress.
     MSPB--Merit Systems Protection Board.

[[Page 1558]]

     NLRA--National Labor Relations Act.
     NLRB--National Labor Relations Board.
     OC--Office of Compliance.
     Office--Office of Compliance.
     OPM--Office of Personnel Management.
     OSH--Occupational Safety and Health.
     OSHAct--Occupational Safety and Health Act of 1970, 29 U.S.C. 
         Sec. 651 et seq.
     PAB--Personnel Appeals Board of the General Accounting 
         Office.
     PPA--Portal-to-Portal Act of 1947, 29 U.S.C. Sec. 251 et seq.
     RIF--Reduction in Force.
     Section 230 Study--the study mandated by section 230 of the 
         Congressional Accountability Act of 1995, which was 
         issued by the Board of Directors of the Office of 
         Compliance in December of 1996.
     Title VII--Title VII of the Civil Rights Act of 1964, 42 
         U.S.C. Sec. 2000e et seq.
     ULP--Unfair Labor Practice.
     USERRA--Section 2 of the Uniformed Services Employment and 
         Reemployment Rights Act of 1994, 38 U.S.C. chapter 43.
     VEOA--Veterans Employment Opportunities Act of 1998, Pub. Law 
         No. 105-339.
     WARN Act--Worker Adjustment and Retraining Notification Act, 
         29 U.S.C. Sec. 2101 et seq.


                           executive summary

       In this Report, issued under section 102(b) of the 
     Congressional Accountability Act of 1995 (``CAA''), the Board 
     of Directors of the Office of Compliance reviews new statutes 
     or statutory amendments enacted after the Board's 1996 Report 
     was prepared, and recommends that certain other inapplicable 
     laws should be made applicable to the legislative branch. In 
     the second part of this Report, the Board reviews 
     inapplicable provisions of the private-sector laws generally 
     made applicable by the CAA (the ``CAA laws''),1 
     and reports on whether and to what degree these provisions 
     should be made applicable to the legislative branch. Finally, 
     the Board reviews and makes recommendations on whether to 
     make the CAA or another body of laws applicable to the 
     General Accounting Office (``GAO''), the Government Printing 
     Office (``GPO''), and the Library of Congress (``Library'').
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     \1\ This report uses the term ``CAA laws'' to refer to the 
     eleven laws, applicable in the federal and private sectors, 
     made applicable to the legislative branch by the CAA and 
     listed in section 102(a) of that Act.
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     Part I
       After reviewing all federal laws and amendments relating to 
     terms and conditions of employment or access to public 
     accommodations and services passed since October, 1996, the 
     Board concludes that no new provisions of law should be made 
     applicable to the legislative branch. Two laws relating to 
     terms and conditions of employment were amended, but 
     substantial provisions of each law have already been made 
     applicable to the legislative branch. However, the provisions 
     of private-sector law which the Board identified in 1996 in 
     its first Section 102(b) Report as having little or no 
     application in the legislative branch have not yet been made 
     applicable, and the Board's experience in the administration 
     and enforcement of the Act in the two years since that first 
     report was submitted to Congress has raised several new 
     issues.
       Based on the work of the 1996 Section 102(b) Report, the 
     Board makes the following two sets of recommendations.
       (1) The Board resubmits the recommendations made in the 
     1996 Section 102(b) Report that the following provisions of 
     laws be applied to employing offices within the legislative 
     branch: Prohibition Against Discrimination on the Basis of 
     Bankruptcy (11 U.S.C. Sec. 525); Prohibition Against 
     Discharge from Employment by Reason of Garnishment (15 U.S.C. 
     Sec. 1674(a)); Prohibition Against Discrimination on the 
     Basis of Jury Duty (28 U.S.C. Sec. 1875); Titles II and III 
     of the Civil Rights Act of 1964 (42 U.S.C. Sec. Sec. 2000(a) 
     to 2000a-6, 2000b to 2000b-3) (prohibiting discrimination on 
     the basis of race, color, religion, or national origin 
     regarding the goods, services, facilities, privileges, 
     advantages, and accommodations of any place of public 
     accommodation as defined in the Act).
       (2) After further study of the whistleblower provisions of 
     the environmental laws (15 U.S.C. Sec. 2622; 33 U.S.C. 
     Sec. 1367; 42 U.S.C. Sec. Sec. 300j-9(i), 5851, 6971, 7622, 
     9610) on which the Board had previously deferred decision, 
     the Board now concludes that the better construction of these 
     provisions is that they cover the legislative branch. 
     However, because arguments could be made to the contrary, the 
     Board recommends that language should be added to make clear 
     that all entities within the legislative branch are covered 
     by these provisions.
       Based on its experience in the administration and 
     enforcement of the Act and employee inquiry since the 1996 
     Report was issued, the Board makes the following two 
     recommendations:
       (1) Employee ``whistleblower'' protections, comparable to 
     those generally available to employees covered by 5 U.S.C. 
     Sec. 2302(b)(8), should be made applicable to the legislative 
     branch 2 to further the institutional and public 
     policy interest in preventing reprisal or intimidation for 
     the disclosure of information which evidences fraud, waste, 
     or abuse or a violation of applicable statute or regulation.
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     \2\ Such protections are already generally available to 
     employees at GAO and GPO.
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       (2) The Board has found that Congress has created a number 
     of special-purpose study commissions in which some or all 
     members are appointed by the Congress. These commissions are 
     not listed as employing offices under the CAA and, in some 
     cases, such commissions may not be covered by other, 
     comparable protections. The Board therefore believes that the 
     coverage of such special-purpose study commissions should be 
     clarified.
     Part II
       Having reviewed all the inapplicable provisions of the 
     private-sector CAA laws,3 the Board focuses its 
     recommendations on enforcement,4 the area in which 
     Congress made the most significant departures from the 
     private-sector provisions of the CAA laws.
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     \3\ The table of the private-sector provisions of the CAA 
     laws not made applicable by the CAA, set forth in Appendix I 
     to this Report, details these exceptions.
     \4\ The private-sector enforcement authority tables, set 
     forth in Appendix II to this Report, summarize the 
     enforcement authorities afforded to the implementing 
     executive-branch agencies under the private-sector laws made 
     applicable by the CAA in those areas in which the CAA does 
     not already grant enforcement authority to the Office.
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       The Board makes the following specific recommendations of 
     changes to the CAA:
       (1) grant the Office the authority to investigate and 
     prosecute violations of section 207 of the CAA, which 
     prohibits intimidation or reprisal for opposing any practice 
     made unlawful by the Act or for participation in any 
     proceeding under the Act;
       (2) clarify that section 215(b) of the CAA, which makes 
     applicable the remedies set forth in section 13(a) of the 
     Occupational Safety and Health Act of 1970 (``OSHAct''), 
     gives the General Counsel the authority to seek a restraining 
     order in district court in the case of imminent danger to 
     health or safety; and
       (3) make the record-keeping and notice-posting requirements 
     of the private-sector laws applicable under the CAA.
       The Board also makes the following general recommendations:
       (4) extend the benefits of the model alternative dispute 
     resolution system created by the CAA to the private and 
     federal sectors to provide them with the same efficient and 
     effective method of resolving disputes that the legislative 
     branch now enjoys; and
       (5) grant the Office the other enforcement authorities 
     exercised by the agencies which implement those CAA laws for 
     the private sector in order to ensure that the legislative 
     branch experiences the same burdens as the private sector.
       The Board further suggests that, to realize fully the goals 
     of the CAA--to assure that ``congressional employees will 
     have the civil rights and social legislation that has ensured 
     fair treatment of workers in the private sector'' and to 
     ``ensure that Members of Congress will know firsthand the 
     burdens that the private sector lives with'' 5--
     all inapplicable provisions of the CAA laws should, over 
     time, be made applicable.
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     \5\ 141 Cong. Rec. S441 (daily ed. Jan. 9, 1995) (statement 
     of Senator Grassley).
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     Part III
       The Board identifies three principal options for coverage 
     of the three instrumentalities:
       (1) CAA Option--Coverage under the CAA, including the 
     authority of the Office of Compliance as it administers and 
     enforces the CAA (as the CAA would be modified by enactment 
     of the recommendations made in Part II of this Report.)
       (2) Federal-Sector Option--Coverage under the statutory and 
     regulatory regime that applies generally in the executive 
     branch of the federal sector, including the authority of 
     executive-branch agencies as they administer and enforce the 
     laws in the federal sector.
       (3) Private-Sector Option--Coverage under the statutory and 
     regulatory regimes that apply generally in the private 
     sector, including the authority of the executive-branch 
     agencies as they administer and enforce the laws in the 
     private sector.6
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     \6\ The coverage described in each of the three options would 
     supersede only provisions of law which provide substantive 
     rights analogous to those provided under the CAA or which 
     establish analogous administrative, judicial, or rulemaking 
     processes to implement, remedy, or enforce such rights. 
     Substantive rights under federal-sector or other laws having 
     no analogue in the CAA, and processes used to implement, 
     remedy, or enforce such rights, would not be affected by the 
     coverage described in the three options.

     The Board compared these options with the current regimes at 
     GAO, GPO, and the Library, identifying the significant 
     effects of applying each option.7
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     \7\ The comparisons, which are presented in detail in tables 
     set forth in Appendix III to this Report, cover the CAA, the 
     laws made applicable by the CAA, analogous laws that apply in 
     the federal sector and the private sector, and mechanisms for 
     applying and enforcing them.
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       The Board concludes that coverage under the private-sector 
     regime is not the best of the options it considered. Members 
     Adler and Seitz recommend that the three instrumentalities be 
     covered under the CAA, with certain modifications, and 
     Chairman Nager and Member Hunter recommend that the three 
     instrumentalities be made fully subject to the laws and 
     regulations generally applicable in the executive branch of 
     the federal sector.

[[Page 1559]]

       The analysis and conclusions in this report are being made 
     solely for the purposes set forth in section 102(b) of the 
     Congressional Accountability Act of 1995. Nothing in this 
     report is intended or should be construed as a definitive 
     interpretation of any factual or legal question by the Office 
     of Compliance or its Board of Directors.
       The Board of Directors of the Office of Compliance 
     gratefully acknowledges the contributions of Lawrence B. 
     Novey and Eugenie N. Barton for their work on this report.

                         Section 102(b) Report


                              introduction

       Congress enacted the Congressional Accountability Act of 
     1995 (``CAA'') so that there would no longer be ``one set of 
     protections for people in the private sector whose employees 
     are protected by the employment, safety and civil rights 
     laws, but no protection, or very little protection, for 
     employees on Capitol Hill,'' 8 and to ``ensure 
     that Members of Congress will know firsthand the burdens that 
     the private sector lives with.'' 9 Thus, the CAA 
     provides employees of the Congress and certain congressional 
     instrumentalities with the protections of specified 
     provisions of eleven federal employment, labor, and public 
     access laws. (This Report refers to those laws as the ``CAA 
     laws'').10 Further, the Act generally applies the 
     same substantive provisions and judicial remedies of the CAA 
     laws as govern employment and public access in the private 
     sector to ensure that Congress would live under the same laws 
     as the rest of the nation's citizens.
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     \8\ 141 Cong. Rec. S622 (daily ed. Jan. 9, 1995) (statement 
     of Senator Grassley).
     \9\ Id. at S441.
     \10\ The nine private-sector laws made applicable by the CAA 
     are: the Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 
     et seq.) (``FLSA''), Title VII of the Civil Rights Act of 
     1964 (42 U.S.C. Sec. 2000e et seq.) (``Title VII''), the 
     Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 
     et seq.) (``ADA''), the Age Discrimination in Employment Act 
     of 1967 (29 U.S.C. Sec. 621 et seq.) (``ADEA''), the Family 
     and Medical Leave Act of 1993 (29 U.S.C. Sec. 2611 et seq.) 
     (``FMLA''), the Occupational Safety and Health Act of 1970 
     (29 U.S.C. Sec. 651 et seq.) (``OSHAct''), the Employee 
     Polygraph Protection Act of 1988 (29 U.S.C. Sec. 2001 et 
     seq.) (``EPPA''), the Worker Adjustment and Retraining 
     Notification Act (29 U.S.C. Sec. 2101 et seq.) (``WARN 
     Act''), and section 2 of the Uniformed Services Employment 
     and Reemployment Rights Act of 1994 (``USERRA''). The two 
     federal-sector laws made applicable by the CAA are: Chapter 
     71 of title 5, United States Code (relating to federal 
     service labor-management relations) (``Chapter 71''), and the 
     Rehabilitation Act of 1973 (29 U.S.C. Sec. 701 et seq.).
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       However, the Act departed from the private-sector model in 
     a number of significant respects. New institutional, 
     adjudicatory, and rulemaking models were created. Concerns 
     about subjecting itself to regulation, enforcement or 
     administrative adjudication by executive-branch agencies led 
     Congress to establish an independent administrative agency in 
     the legislative branch, the Office of Compliance (the ``OC'' 
     or the ``Office''), to administer and enforce the Act. The 
     Office's administrative and enforcement authorities differ 
     significantly from those in place at the executive-branch 
     agencies which administer and enforce the eleven CAA laws for 
     the private sector and/or the federal-sector. Most notably, 
     the Act did not grant the OC independent investigation and 
     prosecutorial authority comparable to that of analogous 
     executive-branch agencies. Instead, the Act created new, 
     confidential administrative dispute resolution procedures, 
     including compulsory mediation, as a prerequisite to access 
     to the courts. Finally, the Act granted the OC limited 
     substantive rulemaking authority. Substantive regulations 
     under the CAA are adopted by the Board of Directors (the 
     ``Board''). The House and Senate retained the right to 
     approve those regulations, but the CAA provides that, in the 
     absence of Board action and congressional approval, the 
     applicable private-sector regulations or federal-sector 
     regulations apply, with one exception involving labor-
     management relations.11
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     \11\ With respect to the offices listed in Sec. 220(e)(2) of 
     the CAA, the application of rights under Chapter 71 shall 
     become effective only after regulations regarding those 
     offices are adopted by the Board and approved by the House 
     and Senate. See Sec. Sec. 220(f)(2), 411, of the CAA.
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       In terms of substantive law, the Act did not include some 
     potentially applicable laws and made applicable only certain 
     provisions of the CAA laws. Moreover, the Act applied the 
     Federal Labor-Management Relations Act, 5 U.S.C. chapter 71 
     (``Chapter 71''), rather than the private-sector model, and 
     gave the Board authority to create further exclusions from 
     labor-management coverage if the Board found such exclusions 
     necessary because of conflict of interest or Congress's 
     constitutional responsibilities.12
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     \12\ See Sec. 220(e) of the CAA.
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       Finally, the CAA was not made applicable throughout the 
     legislative branch. The CAA only partially covered the three 
     largest instrumentalities of the Congress, the General 
     Accounting Office (``GAO''), the Government Printing Office 
     (``GPO''), and the Library of Congress (the ``Library''), 
     which were already covered in large part by a variety of 
     different provisions of federal-sector laws, administered by 
     the three instrumentalities themselves and/or executive-
     branch agencies.
       Congress left certain areas to be addressed later, after 
     further study and recommendation, as provided for by sections 
     102(b) and 230 of the Act. To promote the continuing 
     accountability of Congress, section 102(b) of the CAA 
     required the Board to review biennially all provisions of 
     federal law and regulations relating to the terms and 
     conditions of employment and access to public services and 
     accommodations; to report on whether or to what degree the 
     provisions reviewed are applicable or inapplicable to the 
     legislative branch; and to recommend whether those provisions 
     should be made applicable to the legislative branch. 
     Additionally, section 230 of the CAA mandated a study of the 
     status of the application of the eleven CAA laws to GAO, GPO, 
     and the Library, to ``evaluate whether the rights, 
     protections, and procedures, including administrative and 
     judicial relief, applicable to [these instrumentalities] . . 
     . are comprehensive and effective . . . includ[ing] 
     recommendations for any improvements in regulations or 
     legislation.'' 13 These reports were to review 
     aspects of legislative-branch coverage which required further 
     study and recommendation to the Congress once the OC and its 
     Board had gained experience in the administration of the Act 
     and Congress had gained experience in living under the Act.
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     \13\ 2 U.S.C. Sec. 1371(c). Originally, the Administrative 
     Conference of the United States was charged with carrying out 
     the study and making recommendations for improvements in the 
     laws and regulations governing the instrumentalities, but 
     when the Conference lost its funding, the responsibility for 
     the study was transferred to the Board.
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       1996 Section 102(b) Report. In December of 1996, the Board 
     completed its first biennial report mandated under section 
     102(b) of the CAA (the ``1996 Section 102(b) Report''), which 
     reviewed and analyzed the universe of federal law relating to 
     labor, employment and public access, made the Board's initial 
     recommendations, and set priorities for future 
     reports.14 To conduct its analysis, the Board 
     organized the provisions of federal law in tabular form 
     according to the kinds of entities to which they applied, and 
     systematically analyzed whether and to what extent they were 
     already applicable to the legislative branch or whether the 
     legislative branch was already covered by other comparable 
     legislation. This generated four tables: the first listed and 
     reviewed those provisions of law generally applicable in the 
     private sector and/or in state and local government that also 
     are already applicable to entities in the legislative branch, 
     a category which included nine of the laws made applicable by 
     the CAA. The second table contained and reviewed those 
     provisions of law that apply only in the federal sector, a 
     category which included the two exclusively federal-sector 
     laws applied to the legislative branch by the CAA. The third 
     table listed and reviewed five private-sector and/or state- 
     and local-government provisions of law that do not apply in 
     the legislative branch, but govern areas in which Congress 
     has already applied to itself other, comparable provisions of 
     law. The last table listed and reviewed thirteen other 
     private-sector laws which do not apply or have only very 
     limited application in the legislative branch.
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     \14\ Section 102(b) Report: Review and Report of the 
     Applicability to the Legislative Branch of Federal Law 
     Relating to Terms and Conditions of Employment and Access to 
     Public Services and Accommodations (Dec. 31, 1996).
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       The Board then turned to its task of recommending which 
     statutes should be applied to the legislative branch. In 
     light of the large body of statutes that the Board had 
     identified and reviewed, the Board determined that it could 
     not make recommendations concerning every possible change in 
     legislative-branch coverage, for ``that would be the work of 
     many years and many hands.'' 15 The Board further 
     recognized that biennial nature of report, as well as the 
     history and structure of the CAA, argued ``for accomplishing 
     such statutory change on an incremental basis.'' 
     16
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     \15\ Id. at 3.
     \16\ Id.
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       In setting its priorities for making recommendations from 
     among the categories of statutes that the Board had 
     identified for analysis and review, the Board sought to 
     mirror the priorities of the CAA. Because legislative history 
     suggested that highest priority of the CAA was the 
     application of private-sector protections to congressional 
     employees where those employees had little or no protection, 
     the Board focused its recommendations in its first report on 
     applying the private-sector laws not currently applicable to 
     the legislative branch. The Board determined that, because of 
     the CAA's focus on coverage of the Congress under private-
     sector laws, the Board's next priority should be to review 
     the inapplicable provisions of the private-sector laws 
     generally made applicable by the CAA.
       The laws detailed in the other two tables were given a 
     lower priority. Because determining whether and to what 
     degree federal-sector provisions of law should be made 
     applicable to the legislative branch ``involve[s], in part, 
     weighing the merits of the protections afforded by the CAA 
     against those provided under other statutory schemes, the 
     Board determined that, in . . . its first year of 
     administering the CAA, [the Board determined that] it would 
     be premature for the

[[Page 1560]]

     Board to make such comparative judgments.'' 17 
     Additionally, among the patchwork of federal-sector laws, 
     which had come to cover some of the instrumentalities of the 
     Congress, were laws the effectiveness and efficiency of which 
     were then (and remain) under review by the Executive Branch. 
     Similarly, the Board deferred consideration of laws that were 
     not applicable, but where the Congress had applied a 
     comparable provision, because the Board concluded that ``as 
     the Board gains rulemaking and adjudicatory experience in the 
     application of the CAA to the legislative branch, the Board 
     will be better situated to formulate recommendations about 
     appropriate changes in those different statutory schemes.'' 
     18 In sum, the Board determined to follow the 
     apparent priorities of the CAA itself, turning first to the 
     application of currently inapplicable private-sector laws, 
     and next in this, its second Section 102(b) Report, reviewing 
     the omissions in coverage of the laws made applicable by the 
     CAA and making recommendations for change.
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     \17\ Id. at 4.
     \18\ Id.
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       Section 230 Study. At the same time as it completed its 
     first report under section 102(b), the Board in its study 
     mandated under section 230 of the CAA (the ``Section 230 
     Study'') 19 analyzed the application of labor, 
     employment and public access laws to GAO, GPO, and the 
     Library, evaluating the statutory and regulatory regimes in 
     place at these instrumentalities to determine whether they 
     were ``comprehensive and effective.'' 20 To do so, 
     the Board had to establish a point of comparison, and 
     determined that the CAA itself was the benchmark intended by 
     Congress. Further, the Board gave content to the terms 
     ``comprehensive and effective,'' defining those terms 
     according to the Board's statutory charge to examine the 
     adequacy of ``rights, protections, and procedures, including 
     administrative and judicial relief.'' 21 Four 
     categories were examined--substantive law; administrative 
     processes and relief; judicial processes and relief; and 
     substantive regulations--to determine whether the regimes at 
     the instrumentalities were ``comprehensive and effective'' 
     according to: (1) the nature of the substantive rights and 
     protections afforded to employees, both as guaranteed by 
     statute and as applied by rules and regulations; (2) the 
     adequacy of administrative processes, including: (a) adequate 
     enforcement mechanisms for monitoring compliance and 
     detecting and correcting violations, and (b) a fair and 
     independent mechanism for informally resolving or, if 
     necessary, investigating, adjudicating, and appealing 
     disputes; (3) the availability and adequacy of judicial 
     processes and relief; and (4) the adequacy of any process for 
     issuing substantive regulations specific to an 
     instrumentality, including proposal and adoption by an 
     independent regulatory authority under appropriate statutory 
     criteria.22
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     \19\ Section 230 Study: Study of Laws, Regulations, and 
     Procedures at the General Accounting Office, the Government 
     Printing Office and the Library of Congress (Dec. 1996) at 
     iii.
     \20\ 2 U.S.C. Sec. 1371(c).
     \21\ Id. 
     \22\ Section 230 Study at ii.
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       The Board concluded that ``overall, the rights, 
     protections, procedures and [judicial and administrative] 
     relief afforded to employees'' were ``comprehensive and 
     effective when compared to those afforded to other 
     legislative-branch employees under the CAA,'' but pointed out 
     several gaps and a number of significant differences in 
     coverage.23 However, the Board explained that it 
     was ``premature'' to make recommendations at that ``early 
     stage of its administration of the Act,''24 as to 
     whether changes were necessary in the coverage applicable in 
     these instrumentalities. The Board further stated that its 
     ongoing reporting requirement under section 102(b) argued for 
     accomplishing such statutory change on an incremental basis 
     as the Board gained experience in the administration of the 
     CAA. The conclusions in the Section 230 Study thus properly 
     would serve at the appropriate time as ``the foundation for 
     recommendations for change'' in a subsequent report under 
     section 102(b) of the CAA.25
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     \23\ Id.
     \24\ Id.
     \25\ Id.
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       The time is now ripe for the Board to make recommendations 
     for change in the coverage of the three instrumentalities 
     which are appropriately included as part of this Report. The 
     Board has had over three years' experience in the 
     administration of the rights, protections and procedures made 
     applicable to the legislative branch by the CAA. This 
     experience in administering and enforcing the CAA and 
     assessing its strengths and weaknesses in making 
     recommendations respecting changes in the CAA to make the Act 
     comprehensive and effective with respect to those parts of 
     the legislative branch already covered under the CAA has 
     augmented the structural foundation set down in the Section 
     230 Study. Thus, the Board has both the substantive and 
     experiential bricks and mortar to model the options for 
     changes in the regimes covering the three largest 
     instrumentalities. Moreover, procedural rulemaking to extend 
     the Procedural Rules of the Office of Compliance to cover 
     proceedings commenced by GAO and Library employees alleging 
     violations of sections 204-207 of the CAA raised questions as 
     to the current status of substantive and procedural coverage 
     of the instrumentalities under the Act, demonstrating an 
     immediate need for Congress to clarify the relationship 
     between the CAA and the instrumentalities.
       Accordingly, this Report has three parts. In the first, the 
     Board fulfills its general responsibility under section 
     102(b), by presenting a review of laws enacted after the 1996 
     Section 102(b) Report and recommendations as to which laws 
     should be made applicable to the legislative branch. The 
     second part analyzes which private-sector provisions of the 
     CAA laws do not apply to the legislative branch and which 
     should be made applicable. The third part reviews current 
     coverage of GAO, GPO, and the Library of Congress under the 
     laws made applicable by the CAA and presents the Board's 
     recommendations for change.


  I. REVIEW OF LAWS ENACTED AFTER THE 1996 SECTION 102(b) REPORT, and 
REPORT RECOMMENDING THAT CERTAIN OTHER INAPPLICABLE LAWS SHOULD BE MADE 
                               APPLICABLE

     A. Background
       Section 102(b) of the CAA directs the Board of Directors of 
     the Office of Compliance to--review 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. And, on the basis of this 
     review--beginning on December 31, 1996, and every 2 years 
     thereafter, the Board shall report on (A) whether or to what 
     degree the provisions described in paragraph (1) are 
     applicable or inapplicable to the legislative branch, and (B) 
     with respect to provisions inapplicable to the legislative 
     branch, whether such provisions should be made applicable to 
     the legislative branch.
       In preparing this part of the 1998 Section 102(b) Report, 
     all federal laws and amendments passed since October 1996 
     were reviewed to identify any new laws and changes in 
     existing laws relating to terms and conditions of employment 
     or access to public accommodations and services. The results 
     of that review are reported here.26 Further, in 
     this part of the current Section 102(b) Report, the Board 
     addresses the question of coverage of the legislative branch 
     under the environmental whistleblower provisions which the 
     Board deferred in the previous, 1996 Report. The Board also 
     notes that the provisions of private-sector law which the 
     Board identified in that Section 102(b) Report as having 
     little or no application in the legislative branch have not 
     yet been made applicable, and the Board therefore also 
     resubmits its recommendations regarding those provisions 
     here. Based on experience in the administration and 
     enforcement of the Act in the two years since that first 
     report was submitted to Congress, the Board addresses two 
     other areas--whistleblower protection and coverage of special 
     study commissions--which, due to employee inquiry, the Board 
     believes merit attention now.
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     \26\ As in the 1996 Section 102(b) Report, excluded from 
     consideration were those laws that, although employment-
     related, (1) are specific to narrow or specialized industries 
     or types of employment not found in the legislative branch 
     (e.g., employment in maritime or mining industries, or the 
     armed forces, or employment in a project funded by federal 
     grants or contracts); or (2) establish government programs of 
     research, data-collection, advocacy, or training, but do not 
     establish correlative rights and responsibilities for 
     employees and employers (e.g., statutes authorizing the 
     Women's Bureau or the Bureau of Labor Statistics); or (3) 
     authorize, but do not require, that employers provide 
     benefits to employees, (e.g. so-called ``cafeteria plans'' 
     authorized by 26 U.S.C. Sec. 125).
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     B. Review and Report on Laws Passed Since October 1996
       With two exceptions, the Congress did not pass a new law or 
     significantly amend an existing law relating to terms and 
     conditions of employment or access to public accommodations 
     since the 1996 Section 102(b) Report. The first exception is 
     the Postal Employees Safety Enhancement Act, Pub. L. No. 105-
     241, which amends the OSHAct to apply it to the United States 
     Postal Service. The second exception is the Veterans 
     Employment Opportunities Act of 1997 (``VEOA''), Pub. L. No. 
     105-339, which provides for expanded veterans' preference 
     eligibility and retention in the executive branch and for 
     those legislative-branch employees who are in the competitive 
     service.
       Both the OSHAct and the VEOA already apply to a substantial 
     extent to the legislative branch. The OSHAct was made 
     generally applicable to the legislative branch by section 215 
     of the CAA, and, in Parts II and III of this 1998 Section 
     102(b) Report, the Board has reviewed the extent to which 
     specific provisions of the OSHAct apply within the 
     legislative branch, and has made recommendations.

[[Page 1561]]

       As to the VEOA, selected provisions of the Act apply to 
     employees meeting the definition of ``covered employee'' 
     under the CAA, excluding those employees whose appointment is 
     made by a Member or Committee of Congress, and the VEOA 
     assigns responsibility to the Board to implement veterans' 
     preference requirements as to these employees. It is 
     premature for the Board now, two months after enactment of 
     the VEOA, to express any views about the extent to which 
     veterans' preference rights do, or should, apply in the 
     legislative branch, but the Board may decide to do so in a 
     subsequent biennial report under section 102(b).
     C. Report and Recommendations Respecting Laws Addressed in 
         the 1996 Section 102(b) Report
       1. Resubmission of Earlier Recommendations
       The Board of Directors resubmits the following 
     recommendations made in the 1996 Section 102(b) Report:
       (a) Prohibition against discrimination on the basis of 
     bankruptcy (11 U.S.C. Sec. 525). Section 525(a) provides that 
     ``a governmental unit'' may not deny employment to, terminate 
     the employment of, or discriminate with respect to employment 
     against, a person that is or has been a debtor under the 
     bankruptcy statutes. This provision currently does not apply 
     to the legislative branch. For the reasons stated in the 1996 
     Section 102(b) Report, the Board reports that the rights and 
     protections against discrimination on this basis should be 
     applied to employing offices within the legislative branch.
       (b) Prohibition against discharge from employment by reason 
     of garnishment (15 U.S.C. Sec. 1674(a)). Section 1674(a) 
     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 reason set forth in the 1996 Section 102(b) Report, 
     the Board has determined that the rights and protections 
     against discrimination on this basis should be applied to 
     employing offices within the legislative branch.
       (c) Prohibition against discrimination on the basis of jury 
     duty (28 U.S.C. Sec. 1875). Section 1875 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 reason set forth in the 1996 
     Section 102(b) Report, the Board has determined that the 
     rights and protections against discrimination on this basis 
     should be applied to employing offices within the legislative 
     branch.
       (d) Titles II and III of the Civil Rights Act of 1964 (42 
     U.S.C. Sec. Sec. 2000a to 2000a-6, 2000b to 2000b-3). These 
     titles prohibit discrimination or segregation on the basis of 
     race, color, religion, or national origin regarding the 
     goods, services, facilities, privileges, advantages, and 
     accommodations of ``any place of public accommodation'' as 
     defined in the Act. Although the CAA incorporated the 
     protections of titles II and III of the ADA, which prohibit 
     discrimination on the basis of disability with respect to 
     access to public services and accommodations, it does not 
     extend protection against discrimination based upon race, 
     color, religion, or national origin with respect to access to 
     public services and accommodations. For the reasons set forth 
     in the 1996 Section 102(b) Report, the Board has determined 
     that the rights and protections afforded by titles II and III 
     of the Civil Rights Act of 1964 against discrimination with 
     respect to places of public accommodation should be applied 
     to employing offices within the legislative branch.
       2. Employee Protection Provisions of Environmental Statutes
       (a) Report. The Board adds a recommendation respecting 
     coverage under the employee protection provisions of the 
     environmental protection statutes. The employee protection 
     provisions in the environmental protection statutes (15 
     U.S.C. Sec. 2622; 33 U.S.C. Sec. 1367; 42 U.S.C. 
     Sec. Sec. 300j-9(i), 5851, 6971, 7622, 9610) generally 
     protect an employee from discrimination in employment because 
     the employee commences proceedings under the applicable 
     statutes, testifies in any such proceeding, or assists or 
     participates in any way in such a proceeding or in any other 
     action to carry out the purposes of the statutes. In the 1996 
     Report the Board reviewed and analyzed these provisions but 
     ``reserve[d] judgement on whether or not these provisions 
     should be made applicable to the legislative branch at this 
     time'' because, among other things, it was ``unclear to what 
     extent, if any, these provisions apply to entities in the 
     legislative branch.'' 27
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     \27\ 1996 Section 102(b) Report at 6.
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       Upon further review, applying the principles stated in the 
     1996 Report,28 the Board has now concluded that 
     there is sound reason to construe these provisions as 
     applicable to the legislative branch. However, because it is 
     possible to construe certain of these provisions as 
     inapplicable, the Board recommends that Congress should adopt 
     legislation clarifying that the employee protection 
     provisions in the environmental protection statutes apply to 
     all entities within the legislative branch.
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     \28\ The Board stated in the 1996 Section 102(b) Report: 
     ``The Board has generally followed the principle that 
     coverage must be clearly and unambiguously stated.'' Section 
     102(b) Report at 2. Furthermore, as to private-sector 
     provisions, the Board stated: ``Because a major goal of the 
     CAA was to achieve parity with the private sector, the Board 
     has determined that, if our review reveals no impediment to 
     applying the provision in question to the legislative branch, 
     it should be made applicable.'' Id. at 4-5.
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       (b) Recommendation: Legislation should be adopted 
     clarifying that the employee protection provisions in the 
     environmental protection statutes apply to all entities 
     within the legislative branch.
     D. Report and Recommendations in Areas Identified by 
         Experience
       1. Employee ``Whistleblower'' Protection
       (a) Report. Civil service law 29 provides broad 
     protection to ``whistleblowers'' in the executive branch and 
     at GAO and GPO, but these provisions do not apply otherwise 
     in the legislative branch. Employees subject to these 
     provisions are generally protected against retaliation for 
     having disclosed any information the employee reasonably 
     believes evidences a violation of law or regulation, gross 
     mismanagement or abuse of authority, or substantial danger to 
     public health or safety. (In the private sector, 
     whistleblowers are also often protected by provisions of 
     specific federal laws.30) The Office has received 
     a number of inquiries from congressional employees concerned 
     about protection against possible retaliation by an employing 
     office for the disclosure of what the employee perceives to 
     be such information. 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.
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     \29\ See, e.g., 5 U.S.C. Sec. 2302(b)(8).
     \30\ See, e.g., 15 U.S.C. Sec. 2622; 33 U.S.C. Sec. 1367; 42 
     U.S.C. Sec. Sec. 300j-9(i), 5851, 6971, 7622, 9610 (the 
     employee protection provisions of various environmental 
     statutes), discussed on page 13 above. Other whistleblower 
     protection may be provided through state statute or state 
     common law, which are outside the scope of this Report.
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       (b) Recommendation: Congress should provide whistleblower 
     protection to legislative-branch employees comparable to that 
     provided to executive-branch employees under 5 U.S.C. 
     Sec. 2302(b)(8).
       2. Coverage of Special-Purpose Study Commissions
       (a) Report. The Office has been asked questions respecting 
     the coverage of certain special-purpose study commissions 
     that include members appointed by Congress or by officers of 
     Congressional instrumentalities. Such commissions are not 
     expressly listed in section 101(9) of the CAA in the 
     definition of ``employing offices'' covered under the CAA, 
     and in some cases it is unclear whether commission employees 
     are covered under rights and protections comparable to those 
     granted by the CAA. The Board believes that the coverage of 
     such special-purpose study commissions should be clarified.
       (b) Recommendation: Congress should specifically designate 
     the coverage under employment, labor, and public access laws 
     that it intends, both when it creates special-purpose study 
     commissions that include members appointed by Congress or by 
     legislative-branch officials, and for such commissions 
     already in existence.


 II. REVIEW OF INAPPLICABLE PRIVATE-SECTOR PROVISIONS OF CAA LAWS AND 
      REPORT ON WHETHER THOSE PROVISIONS SHOULD BE MADE APPLICABLE

     A. Background
       In its first Section 102(b) Report,31 the Board 
     determined that it should, in future section 102(b) reports, 
     proceed incrementally to review and report on currently 
     inapplicable provisions of law, and recommend whether these 
     provisions should be made applicable, as experience was 
     gained in the administration and enforcement of the Act. The 
     next report to Congress would be an ``in depth study of the 
     specific exceptions created by Congress'' 32 from 
     the nine private-sector laws made applicable by the CAA 
     33 because the application of these private-sector 
     laws was the highest priority in enacting the 
     CAA.34
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     \31\ See 1996 section 102(b) report.
     \32\ Id. at 4.
     \33\ The private-sector laws made applicable by the CAA are 
     listed in note 10, at page 5, above.
     \34\ See 1996 section 102(b) report at 3.
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       Part II of this second Section 102(b) Report considers 
     these specific exceptions,35 focusing on 
     enforcement, the area in which Congress made the most 
     significant departures from the private-sector provisions of 
     the CAA laws. In this part of the Report, the Board reviews 
     the remedial schemes provided under the CAA with respect to 
     the nine private-sector laws made applicable, evaluates their 
     efficacy in light of three years of experience in the 
     administration and enforcement of the Act, and compares these 
     CAA remedial schemes with those authorities provided for the 
     vindication of the CAA

[[Page 1562]]

     laws in the private sector.36 Based on this review 
     and analysis and the Board's statutory charge to recommend 
     whether inapplicable provisions of law ``should be made 
     applicable to the legislative branch,'' 37 the 
     Board makes a number of recommendations respecting the 
     application of these currently inapplicable enforcement 
     provisions.
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     \35\ The table of significant provisions of the private-
     sector CAA laws not yet made applicable by the CAA, set forth 
     in Appendix I to this Report, details these exceptions.
     \36\ The private-sector enforcement authority tables, set 
     forth in Appendix II to this Report, summarize the 
     enforcement authorities afforded to the implementing 
     executive-branch agencies under the private-sector laws made 
     applicable by the CAA in those areas in which the CAA does 
     not already grant enforcement authority to the Office.
     \37\ Section 102(b)(2)(B) of the CAA.
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       The statute provides no direct guidance to the Board in 
     recommending whether a provision ``should be made 
     applicable.'' 38 The Board has therefore made 
     these recommendations in light of its experience and 
     expertise with respect to both the application of these laws 
     to the private sector 39 and the administration 
     and enforcement of the Act, as well as its understanding of 
     the general purposes and goals of the Act. In particular, the 
     Board intends that these recommendations should further a 
     central goal of the CAA to create parity with the private 
     sector so that employers and employees in the legislative 
     branch would experience the same benefits and burdens as the 
     rest of the nation's citizens.
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     \38\ Section 102(b) directs the Board to: ``review 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.'' On 
     the basis of this review, section 102(b) requires the Board 
     biennially to: ``report on (A) whether or to what degree the 
     provisions described in paragraph (1) are applicable or 
     inapplicable to the legislative branch, and (B) with respect 
     to provisions inapplicable to the legislative branch, whether 
     such provisions should be made applicable to the legislative 
     branch.''
     \39\ Section 301(d)(1) of the CAA requires that ``[m]embers 
     of the Board shall have training or experience in the 
     application of the rights, protections, and remedies under 
     one or more of the laws made applicable by [the CAA].''
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     B. Recommendations
       The Board makes the following three specific 
     recommendations of changes to the CAA respecting the 
     application of these currently inapplicable enforcement 
     provisions: 40
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     \40\ The Board also notes that several problems have been 
     encountered in the enforcement of settlements requiring on-
     going or prospective action by a party. The Board does not, 
     at this time, recommend legislative change because the 
     Executive Director, as part of her plenary authority to 
     approve settlements, can require a self- enforcing provision 
     in certain cases and will now do so, as appropriate.
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       1. Grant the Office the authority to investigate and 
           prosecute violations of Sec. 207 of the CAA, which 
           prohibits intimidation and reprisal
       The Board recommends that the Office should be granted 
     enforcement authority with respect to section 207 of the CAA 
     because of the strong institutional interest in protecting 
     employees against intimidation or reprisal for the exercise 
     of the rights provided by the CAA or for participation in the 
     CAA's processes. Investigation and prosecution by the Office 
     would more effectively vindicate those rights, dispel the 
     chilling effect that intimidation and reprisal create, and 
     protect the integrity of the Act and its processes.
       As the tables indicate, enforcement authority with respect 
     to intimidation or reprisal is provided to the agencies that 
     administer and enforce the CAA laws in the private 
     sector.41 In contrast, under the CAA, the rights 
     and protections provided by section 207 are vindicated only 
     if the employee, after counseling and mediation, pursues his 
     or her claim before a hearing officer or in district court. 
     Experience in the administration and enforcement of the CAA 
     argues that the Office should be granted comparable authority 
     to that exercised by the executive-branch agencies that 
     implement the CAA laws in the private sector. Covered 
     employees who have sought information from the Office 
     respecting their substantive rights under the Act and the 
     processes available for vindicating these rights have 
     expressed concern about their exposure in coming forward to 
     bring a claim, as well as a reluctance and an inability to 
     shoulder the entire litigation burden without the support of 
     agency investigation or prosecution. Moreover, employees who 
     have already brought their original dispute to the counseling 
     and mediation processes of the Office and then perceive a 
     reprisal for that action may be more reluctant to use once 
     again the very processes that led to the claimed reprisal.
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     \41\ The only exception is the WARN Act, which has no 
     enforcement authorities.
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       Whatever the reasons a particular employee does not bring a 
     claim of intimidation or reprisal, such unresolved claims 
     threaten to undermine the efficacy of the CAA. Particularly 
     detrimental is the chilling effect on other employees who may 
     wish to bring a claim or who are potential witnesses in other 
     actions under the CAA. Without effective enforcement against 
     intimidation and reprisal, the promise of the CAA that 
     ``congressional employees will have the civil rights and 
     social legislation that ensure fair treatment of workers in 
     the private sector'' 42 is rendered illusory.
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     \42\ 141 Cong. Rec. S441 (daily ed. Jan. 9, 1995) (statement 
     of Senator Grassley).
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       Therefore, in order to preserve confidence in the Act and 
     to avoid chilling legislative branch-employees from 
     exercising their rights or supporting others who do, the 
     Board has concluded that the Congress should grant the Office 
     the authority to investigate and prosecute allegations of 
     intimidation or reprisal as they would be investigated and 
     prosecuted in the private sector by the implementing agency. 
     Enforcement authority can be exercised in harmony with the 
     alternative dispute resolution process and the private right 
     of action provided by the CAA, and will further the purposes 
     of section 207 of the Act.
       2. Clarify that Sec. 215(b) of the CAA, which makes 
           applicable the remedies set forth in Sec. 13(a) of the 
           OSHAct, gives the General Counsel the authority to seek 
           a restraining order in district court in case of 
           imminent danger to health or safety
       With respect to the substantive provisions for which the 
     Office already has enforcement authority,43 the 
     Board's experience to date has illuminated a need to revisit 
     only one area, section 215(b) of the CAA which provides the 
     remedy for a violation of the substantive provisions of the 
     OSHAct made applicable by the CAA.44 Under section 
     215(b) the remedy for a violation of the CAA shall be a 
     corrective order, ``including such order as would be 
     appropriate if issued under section 13(a)'' of the OSHAct. 
     Among other things, the OSHAct authorizes the Secretary of 
     Labor to seek a temporary restraining order in district court 
     in the case of imminent danger. The General Counsel of the 
     Office of Compliance, who enforces the OSHAct provisions as 
     made applicable by the CAA, takes the position that section 
     213(b), by its terms, gives him the same standing to petition 
     the district court for a temporary restraining order in a 
     case of imminent danger as the Labor Department has under the 
     OSHAct. However, it has been suggested that the language of 
     section 213(b) does not clearly provide that authority.
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     \43\ The CAA provides enforcement authority with respect to 
     two private-sector laws, the OSHAct and the provisions of the 
     ADA relating to public services and accommodations. The CAA 
     adopts much of the enforcement scheme provided under the 
     OSHAct; it creates an enforcement scheme with respect to the 
     ADA which is analogous to that provided under the private-
     sector provisions but is sui generis.
     \44\ Section 215(b) of the CAA reads as follows: ``Remedy.--
     The remedy for a violation of subsection (a) shall be an 
     order to correct the violation, including such order as would 
     be appropriate if issued under section 13(a) of the 
     Occupational Safety and Health Act of 1970 (29 U.S.C. 
     Sec. 662(a)).''
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       Although it has not yet proven necessary to resolve a case 
     of imminent danger by means of court order because compliance 
     with the provisions of section 5 of the OSHAct has been 
     achieved through other means,45 the express 
     authority to seek preliminary injunctive relief is essential 
     to the Office's ability promptly to eliminate all potential 
     workplace hazards. If it should become necessary to prosecute 
     a case of imminent danger by means of district court order, 
     action must be swift and sure. Therefore, the Board 
     recommends that the CAA be amended to clarify that the 
     General Counsel has the standing to seek a temporary 
     restraining order in federal district court and that the 
     court has jurisdiction to issue the order.
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     \45\ See generally General Counsel of the Office of 
     Compliance, Report on Safety & Health Inspections Conducted 
     Under the Congressional Accountability Act (Nov. 1998).
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       3. Make applicable the record-keeping and notice-posting 
           requirements of the private-sector CAA laws
       Experience in the administration of the Act leads the Board 
     to recommend that all currently inapplicable record-keeping 
     and notice-posting provisions be made applicable under the 
     CAA. The Board recommends that the Office be granted the 
     authority to require that records be kept and notices posted 
     in the same manner as required by the agencies that enforce 
     the provisions of law made applicable by the CAA in the 
     private sector.
       As the tables illustrate,46 most of the laws 
     made generally applicable by the CAA authorize the enforcing 
     agency to require the keeping of pertinent records and the 
     posting of notices in the work place. Experience has 
     demonstrated that where employing offices have voluntarily 
     kept records, these records have greatly assisted in the 
     speedy resolution of disputed matters. Especially where the 
     law has not been violated, employing offices can more readily 
     demonstrate compliance if adequate records have been made and 
     preserved. Moreover, based upon its experience and expertise, 
     the Board has concluded that effective record keeping is not 
     only beneficial to the employer, but in many cases is 
     necessary to the effective vindication of the rights of 
     employees.
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     \46\ See generally the tables of enforcement authorities set 
     forth in Appendix II to this Report.
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       Additionally, living with the same record-keeping and 
     notice-posting requirements as apply in the private sector 
     will give Congress the practical knowledge of the costs and 
     benefits of these requirements. Congress will be

[[Page 1563]]

     able to determine experientially whether the benefits of each 
     record-keeping and notice-posting requirement outweigh the 
     burdens. Application of the record-keeping and notice-posting 
     requirements will thus achieve one of the primary goals of 
     the CAA, that the legislative branch live under the same laws 
     as the rest of the nation's citizens.
       In addition to these specific recommendations, the Board 
     makes the following two general recommendations which derive 
     from the comparison between the CAA's remedial schemes and 
     those authorities provided for the administration and 
     enforcement of the CAA laws in the private sector:
       4. Extend the benefits of the model alternative dispute 
           resolution system created by the CAA to the private and 
           the federal sectors
       The CAA largely replaces the enforcement schemes used to 
     administer and enforce the CAA laws in the private sector 
     with a model alternative dispute resolution system that 
     mandates counseling and mediation prior to pursuing a claim 
     before a hearing officer or in district court. Experience 
     with this system has shown that most disputes under the CAA 
     are resolved by means of counseling and mediation. There are 
     substantial advantages in resolving disputes in their 
     earliest stages, before litigation. Positions have not 
     hardened; liability, if any, is generally at a minimum; and 
     the maintenance of amicable workplace relations is most 
     likely. Therefore, the Board recommends that Congress extend 
     the alternative dispute resolution system created by the CAA 
     to the private and federal sectors so that these sectors will 
     have parity with the Congress in the use of this effective 
     and efficient method of resolving disputes. The Board 
     believes that the use of this alternative dispute resolution 
     system can be harmonized with the administrative and 
     enforcement regimes in place in both the federal and private 
     sectors.
       5. Grant the Office the other enforcement authorities 
           exercised by the agencies that implement the CAA laws 
           for the private sector
       To further the goal of parity, the Board also recommends 
     that Congress grant the Office the remaining enforcement 
     authorities that executive-branch agencies utilize to 
     administer and enforce the provisions of law made applicable 
     by the CAA in the private sector. As the tables show, the 
     implementing agencies have investigatory and prosecutorial 
     authorities with respect to all of the private-sector CAA 
     laws, except the WARN Act.47 Based on the 
     experience and expertise of Members of the Board, granting 
     the Office the same enforcement authorities as the agencies 
     that administer and enforce these substantive provisions in 
     the private sector would make the CAA more comprehensive and 
     effective. The Office can harmonize the exercise of 
     investigatory and prosecutorial authorities with the use of 
     the model alternative dispute resolution system that the CAA 
     creates. By taking these steps to live under full agency 
     enforcement authority, the Congress will strengthen the bond 
     that the CAA created between the legislator and the 
     legislated: ``This has always been deemed one of the 
     strongest bonds by which human policy can connect the rulers 
     and the people together. It creates between them that 
     communion of interests . . . without which every government 
     degenerates into tyranny.'' 48
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     \47\ The particular authorities afforded to the implementing 
     executive-branch agencies under the private-sector laws made 
     applicable by the CAA are summarized in the private-sector 
     enforcement authority tables set forth in Appendix II to this 
     Report.
     \48\ The Federalist No. 57, at 42 (James Madison) (Franklin 
     Library ed., 1984).
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     C. Conclusion
       The biennial reporting requirement of section 102(b) 
     provides the opportunity for Congress to review the 
     comprehensiveness and effectiveness of the CAA in light of 
     the Board's recommendations and make the legislative changes 
     it deems necessary. The CAA was enacted in the spirit of 
     ``the framers of our constitution'' to take ``care to provide 
     that the laws shall bind equally on all, especially those who 
     make them.'' 49 Acknowledging that reaching that 
     goal was to be a continuing process, section 102(b) mandated 
     the periodic process of re-examination of which this Report 
     and its recommendations are a part.
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     \49\ Thomas Jefferson, A Manual of Parliamentary Practice: 
     for the Use of the Senate of the United States, in 
     Jefferson's Parliamentary Writings 359 (Wilbur S. Howell ed., 
     1988) (2d ed. 1812).
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       The CAA took a giant step toward achieving parity and 
     providing comprehensive and effective coverage of the 
     legislative branch by applying certain substantive provisions 
     of law and by providing new administrative and judicial 
     remedies. However, the Board's review of all the currently 
     inapplicable provisions of the CAA laws, as set forth in the 
     accompanying table,50 has demonstrated that 
     significant gaps remain in the laws made applicable, 
     particularly with respect to the manner in which these laws 
     are enforced under the CAA as compared with the private 
     sector. Based on its expertise in the application of the CAA 
     laws, its three years of experience in the administration and 
     enforcement of the Act, and its understanding that the 
     general purposes and goals of the Act were to achieve parity 
     in the application of laws and to provide the legislative 
     branch with comprehensive and effective protections, the 
     Board recommends that Congress now take the steps of 
     implementing the legislative changes discussed above. The 
     Board further advises the Congress that to realize fully the 
     goals of the CAA--to assure that ``congressional employees 
     will have the civil rights and social legislation that ensure 
     fair treatment of workers in the private sector'' and ``to 
     ensure that members of Congress will know firsthand the 
     burdens that the private sector lives with'' 51--
     all inapplicable provisions of the CAA laws should, over 
     time, be made applicable.
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     \50\ See table of the significant provisions of the CAA laws 
     not yet made applicable by the CAA, set forth as Appendix I 
     to this Report.
     \51\ 141 Cong. Rec. S441 (daily ed. Jan. 9, 1995) (statement 
     of Senator Grassley).
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III. LEGISLATIVE OPTIONS AND RECOMMENDATIONS ON THE APPLICATION OF LAWS 
                TO GAO, GPO, AND THE LIBRARY OF CONGRESS

     A. Background
       Congress sought ``to bring order to the chaos of the way 
     the relevant laws apply to congressional instrumentalities'' 
     52 when, in enacting the CAA, it applied the CAA 
     to the smaller instrumentalities, but not to GAO, GPO, and 
     the Library. Instead, the CAA clarified and extended existing 
     coverage of the three largest instrumentalities in certain 
     respects 53 and, in section 230, required the 
     Board to conduct a study evaluating whether the ``rights, 
     protections, and procedures, including administrative and 
     judicial relief'' now in place at these instrumentalities 
     were ``comprehensive and effective'' and to make 
     ``recommendations for any improvements in regulations or 
     legislation.'' 54
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     \52\ 141 Cong. Rec. S445 (daily ed. Jan. 9, 1995) (statement 
     of Senator Grassley).
     \53\ The CAA--(i) affirmed that GAO and GPO are covered under 
     Title VII and the ADEA and extended coverage under those laws 
     to additional employees at GPO; (ii) established new 
     procedures for enforcing existing ADA rights at GAO, GPO, and 
     the Library; (iii) removed GAO and the Library from coverage 
     under FMLA provisions generally applicable in the federal 
     sector and placed those instrumentalities under FMLA 
     provisions generally applicable in the private sector; and 
     (iv) affirmed that GPO is covered under the FLSA and extended 
     coverage under that law to additional employees at GPO. See 
     Sec. Sec. 201(c), 202(c), 203(d), 210(g) of the CAA.
     \54\ Originally, the Administrative Conference of the United 
     States was charged with conducting the study and making 
     recommendations for improvements in the laws and regulations 
     governing the three instrumentalities, but when Congress 
     ceased funding the Conference, Congress also transferred its 
     responsibility for the Study to the Board.
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       The legislative history explains why Congress covered some 
     instrumentalities under the CAA but not others. Applying the 
     CAA to the smaller instrumentalities and their employees 
     would--extend to these employees, for the first time, the 
     right to bargain collectively, and it will provide a means of 
     enforcing compliance with these laws [made applicable by the 
     CAA] that is independent from the management of these 
     instrumentalities. . . . [B]y strengthening the enforcement 
     mechanisms, the [CAA] attempts to transform the patchwork of 
     hortatory promises of coverage into a truly enforceable 
     application of these laws.55
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     \55\ 141 Cong. Rec. S445 (daily ed. Jan. 9, 1995) (statement 
     of Senator Grassley).
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       By contrast, GAO, GPO, and the Library--already have 
     coverage and enforcement systems that are identical or 
     closely analogous to the executive-branch agencies.
       Notably, employees in each of these agencies already have 
     the right to seek relief in the Federal courts for violations 
     of the Civil Rights Act of 1964, the Age Discrimination in 
     Employment Act, and the Fair Labor Standards Act, and they 
     are covered under the same provisions of the Family and 
     Medical Leave Act as executive-branch employees.
       Employees in each of these instrumentalities also already 
     are assured of the right to bargain collectively, with a 
     credible enforcement mechanism to protect that right. For 
     these three instrumentalities, [the CAA] clarifies existing 
     coverage in certain respects, and expands coverage under the 
     Americans with Disabilities Act.56
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     \56\ Id.
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       Furthermore, legislative history explained that extending 
     the CAA to cover the smaller instrumentalities would have the 
     advantage of ``using the apparatus that will already be 
     necessary to apply these [CAA] laws to the 20,000 employees 
     of the House and Senate [to also apply these laws] to the 
     remaining approximately 3,000 employees of the Architect [of 
     the Capitol]'' and other smaller 
     instrumentalities.57 On the other hand, the CAA 
     would ``reduce the adjudicatory burden on the new office by 
     excluding from its jurisdiction the approximately 15,000 
     employees of GAO, GPO and the Library of Congress.'' 
     58
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     \57\ Id.
     \58\ Id.
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       On December 30, 1996, the Board transmitted its study 
     mandated by section 230 of the CAA to Congress. This Section 
     230 Study explained that, to fulfill the statutory mandate to 
     assess whether the ``rights, protections, and procedures, 
     including administrative and judicial relief,'' 59 
     at GAO, GPO, and the Library were ``comprehensive and 
     effective,'' the Board first had to establish a point of 
     comparison, and the Board decided

[[Page 1564]]

     that the CAA itself was the appropriate benchmark. To give 
     further content to the term ``comprehensive and effective,'' 
     the Board identified four ``key aspects of the current 
     statutory and regulatory regimes,'' 60 which the 
     Board reviewed in evaluating the comprehensiveness and 
     effectiveness of the rights, protections, and procedures at 
     the three instrumentalities:
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     \59\ Sec. 230(c) of the CAA.
     \60\ Section 230 Study at ii.
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       (1) the nature of the substantive rights and protections 
     afforded to employees, both as guaranteed by statute and as 
     applied by rules and regulations;
       (2) the adequacy of administrative processes, including: 
     (a) adequate enforcement mechanisms for monitoring compliance 
     and detecting and correcting violations, and (b) a fair and 
     independent mechanism for informally resolving or, if 
     necessary, investigating, adjudicating, and appealing 
     disputes;
       (3) the availability and adequacy of judicial processes and 
     relief; and
       (4) the adequacy of any process for issuing substantive 
     regulations specific to an instrumentality, including 
     proposal and adoption by an independent regulatory authority 
     under appropriate statutory criteria.61
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     \61\ Id.
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       After reviewing and analyzing the statutory and regulatory 
     regimes in place at the three instrumentalities, the Board 
     concluded that--overall, the rights, protections, procedures 
     and relief afforded to employees at the GAO, the GPO and the 
     Library under the twelve laws listed in section 230(b) are, 
     in general, comprehensive and effective when compared to 
     those afforded other legislative branch employees covered 
     under the CAA.62
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     \62\ Id.
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       However, the Board also found--The rights, protections, 
     procedures and relief applicable to the three 
     instrumentalities are different in some respects from those 
     afforded under the CAA, in part because employment at the 
     instrumentalities is governed either directly under civil 
     service statutes and regulations or under laws and 
     regulations modeled on civil service law.63
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     \63\ Id.
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       These civil-service provisions, which apply generally in 
     the federal sector, apply at the three instrumentalities 
     subject to numerous exceptions. In some instances where 
     federal-sector provisions do not apply, these 
     instrumentalities are covered under the CAA, and, in a few 
     instances, under the statutory provisions that apply 
     generally in the private sector. The result is what the Board 
     called a ``patchwork of coverages and exemptions.'' 
     64
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     \64\ Id. at iv.
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       However, the Board decided that it would be ``premature'' 
     at that ``early stage of its administration of the Act'' 
     65 to make recommendations as to whether changes 
     were necessary in the statutory and regulatory regimes 
     applicable in these instrumentalities.66 The 
     ongoing nature of its reporting requirement under section 
     102(b) argued for making recommendations for statutory change 
     on an incremental basis as the Board gained experience in the 
     administration of the CAA, and the conclusions in the Section 
     230 Study would serve at the appropriate time as ``the 
     foundation for recommendations for change'' in a subsequent 
     report under section 102(b) of the CAA.67
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     \65\ Id.
     \66\ The Board's institutional role, functions, and resources 
     were also very different from those of the Administrative 
     Conference, to which Congress originally assigned the task of 
     preparing the study under section 230. See footnote 53 at 
     page 23, above. The Conference in performing the study and 
     making recommendations would have been acting in accordance 
     with its institutional mandate to study administrative 
     agencies and make recommendations for improvements in their 
     procedures.
     \67\ Section 230 Study at iii.
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       Pursuant to the CAA, several of its provisions became 
     effective with respect to GAO and the Library on December 30, 
     1997, which was one year after the Section 230 Study was 
     transmitted to Congress.68 On October 1, 1997, in 
     anticipation of the December 30 effective date, the Office of 
     Compliance published a notice proposing to extend its 
     Procedural Rules to cover claims alleging that GAO or the 
     Library violated applicable CAA requirements.69 
     Comments in response to this notice, and to a supplemental 
     notice published on January 28, 1998,70 raised 
     questions as to whether the CAA authorizes GAO and Library 
     employees to use the procedures established by the Act to 
     seek remedies for alleged violations of sections 204-207 of 
     the Act. (These sections apply the EPPA, WARN Act, and USERRA 
     and prohibit retaliation for asserting CAA rights.) The 
     Office decided to terminate the rulemaking and, instead, ``to 
     recommend that the Office's Board of Directors prepare and 
     submit to Congress legislative proposals to resolve questions 
     raised by the comments.'' 71
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     \68\ See Sec. Sec. 204(d)(2), 205(d)(2), 206(d)(2), 215(g)(2) 
     of the CAA.
     \69\ 143 Cong. Rec. S10291 (daily ed. Oct. 1, 1997) (Notice 
     of Proposed Rulemaking).
     \70\ 144 Cong. Rec. S86 (daily ed. Jan. 28, 1998) 
     (Supplementary Notice of Proposed Rulemaking).
     \71\ 144 Cong. Rec. S4818, S4819 (daily ed. May 13, 1998) 
     (Notice of Decision to Terminate Rulemaking).
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       The Board has decided that this Section 102(b) Report, 
     focusing on omissions in coverage of the legislative branch 
     under the laws made generally applicable by the CAA, provides 
     the appropriate time and place to make recommendations 
     regarding coverage of GAO, GPO, and the Library under those 
     laws. As anticipated in the Section 230 Study, enough 
     experience has now been gained in implementing the CAA to 
     enable the Board to make recommendations for improvements in 
     legislation applicable to these instrumentalities. Moreover, 
     resolution of uncertainty as to whether employees alleging 
     violations of sections 204-207 may use CAA procedures is an 
     additional reason to include in this Report recommendations 
     about coverage of the three instrumentalities.
     B. Principal Options for Coverage of the Three 
         Instrumentalities
       On the basis of the findings and analysis in the Section 
     230 Study, the Board has identified three principal options 
     for coverage of these instrumentalities:
       (1) CAA Option--Coverage under the CAA, including the 
     authority of the Office of Compliance as it administers and 
     enforces the CAA. (The Board here takes as its model the CAA 
     as it would be modified by enactment of the recommendations 
     made in Part II of this Report.)
       (2) Federal-Sector Option--Coverage under the statutory and 
     regulatory regime that applies generally in the federal 
     sector, including the authority of executive-branch agencies 
     as they administer and enforce the laws in the federal 
     sector.
       (3) Private-Sector Option--Coverage under the statutory and 
     regulatory regimes that apply generally in the private 
     sector, including the authority of the executive-branch 
     agencies as they administer and enforce the laws in the 
     private sector.72
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     \72\ To be sure, other, hybrid models could be developed, 
     based on normative judgments respecting particular provisions 
     of law. Or, it would be possible to leave the ``patchwork'' 
     of coverages and exemptions currently in place at the three 
     instrumentalities and fill serious gaps in coverage on a 
     piecemeal basis. However, presentation of such models would 
     cloud the central question of which is the most appropriate 
     model for the instrumentalities.
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       These options are compared with the current regimes at GAO, 
     GPO, and the Library, identifying the significant effects of 
     applying each option.
       The comparisons are presented in tables set forth in 
     Appendix III to this Report and are summarized and discussed 
     in narrative form below. Insofar as federal-sector employers, 
     private-sector employers, or the three instrumentalities are 
     covered by laws affording substantive rights that have no 
     analogue in the CAA, this Report does not discuss or chart 
     these rights.73 In defining the coverage described 
     in the three options, the Board decided that, so as not to 
     create duplicative rights and remedies, the application of 
     the CAA or of analogous federal-sector or private-sector 
     provisions should supersede existing provisions affording 
     substantially similar substantive rights or establishing 
     administrative, judicial, or rulemaking processes to 
     implement, remedy, or enforce such rights. However, 
     substantive rights under federal-sector or other laws having 
     no analogue in the CAA, and processes used to implement, 
     remedy, or enforce such rights, would not be affected by the 
     coverage described in the three options.
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     \73\ In evaluating these options, the Board is not 
     considering the veterans' preference statutory provisions 
     that apply generally in the federal sector and that, under 
     the Veterans Employment Opportunity Act of 1998 (``VEOA''), 
     were recently made applicable to certain employing offices of 
     the legislative branch. Veterans' preference requirements, 
     which were not made applicable by the CAA as enacted in 1995 
     or listed for study under section 230, were not analyzed in 
     the Board's study under that section. Enacted on October 31, 
     1998, the VEOA assigned responsibility to the Board to 
     implement veterans' preference requirements as to certain 
     employing offices. It is premature for the Board now to 
     express any views about the extent to which veterans' 
     preference rights do, or should, apply to GAO, GPO, and the 
     Library, but the Board may decide to do so in a subsequent 
     biennial report under section 102(b).
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       In comparing each option for coverage with the regime in 
     place at each instrumentality, the Board has analyzed the 
     differences under the four general categories used in the 
     Section 230 Study: Substantive Rights, Administrative 
     Remedial and Enforcement Processes, Judicial Processes and 
     Relief, and Substantive Rulemaking Process. The narrative 
     comparisons highlight the main differences in each area. The 
     appended tables make a more detailed comparison of 
     differences between each option and the existing regimes at 
     the instrumentalities in each of the above-defined areas.
       The examination of the consequences of applying the three 
     options demonstrates that each has advantages and 
     disadvantages with regard to ``comprehensiveness'' and 
     ``effectiveness,'' particularly in the area of administrative 
     processes and enforcement. A particular administrative/
     enforcement scheme arguably may be more ``comprehensive'' 
     than another because it includes more avenues for the redress 
     of grievances, but the very multiplicity of avenues arguably 
     may make that scheme less ``effective'' than a more 
     streamlined system. Because all three options largely provide 
     the same substantive rights, determining whether to advocate 
     the option of applying the CAA, the federal-sector model, or 
     the private-sector model depends largely on weighing the 
     costs and benefits of administrative systems for resolving

[[Page 1565]]

     disputes either primarily through a single-agency alternative 
     dispute resolution system, an internal-agency investigation 
     and multi-agency adjudicatory system, or a multi-agency 
     investigation and enforcement system.
       The Board found that the question of which option to 
     recommend is by no means simple. Sensible arguments support 
     the application of each model. GAO, GPO, and the Library can 
     be analogized to either the other employing offices in the 
     legislative branch, of which these instrumentalities are by 
     statute a part, the executive branch, to which GAO, GPO, and 
     the Library have many functional similarities, or the private 
     sector, which the legislative history of the CAA portrays as 
     the intended workplace model for the legislative branch.
       Arguably, the legislative-branch model of the CAA, 
     administered and enforced by the Office of Compliance, is the 
     most appropriate to the instrumentalities, in that Congress 
     has already placed not only the employing offices of the 
     House and Senate, but also the instrumentalities of the 
     Office of the Architect of the Capitol, the Capitol Police, 
     the Congressional Budget Office, and the Office of Compliance 
     under the CAA. Furthermore, as the legislative history of the 
     CAA makes clear, the authors of the Act expected the Board to 
     use the CAA as the benchmark in evaluating the 
     comprehensiveness and effectiveness of the regimes in place 
     at GAO, GPO, and the Library. Moreover, GAO, GPO, and the 
     Library are considered instrumentalities of the Congress for 
     many purposes, and some offices of these instrumentalities 
     work directly with Members and staff of Congress in the 
     legislative process, which legislative functions some Members 
     of Congress perceived as creating tension with executive- 
     branch agency coverage.
       On the other hand, federal-sector laws and regulations, 
     administered and enforced in part by executive-branch 
     agencies, are already in place at the three instrumentalities 
     in many respects. In addition, the special circumstances 
     attendant to Congressional offices that warranted 
     administration and enforcement under the CAA by a separate 
     legislative-branch office, and that justified certain 
     limitations on rights and procedures under the CAA as 
     compared to those generally available in the federal sector, 
     are attenuated when applied to GAO, GPO, and the Library. 
     Moreover, as noted in Part II above, the Board has advised 
     that the Congress over time should make all currently 
     inapplicable provisions of the federal- and private-sector 
     CAA laws applicable to itself; thus the instrumentalities 
     should not become subject to those exemptions from coverage 
     attendant upon application of the CAA model.
       Finally, the private-sector model arguably best serves the 
     goal of the CAA of achieving parity with the private sector 
     whenever possible. By so doing, those in the legislative 
     branch would live under the same legal regime as the private 
     citizen.
     C. Comparison of the Options for Change
       1. CAA Option: Bring the three instrumentalities fully 
           under the CAA, including the authority of the Office of 
           Compliance as it administers and enforces the Act
       (a) Substantive rights. Covering GAO, GPO, and the Library 
     under the CAA would grant substantive rights that are 
     generally the same as those now applicable at these 
     instrumentalities. However, changes include: (i) GPO would 
     become covered under the rights of the WARN Act and EPPA, 
     which do not now apply at that instrumentality. (ii) Coverage 
     under the CAA would afford a greater scope of appropriate 
     bargaining units and collective bargaining than is now 
     established at GAO under regulations issued by the 
     Comptroller General under the GAO Personnel Act. (iii) 
     Coverage under section 220(e)(2)(H) of the CAA would add a 
     process by which the Board, with the approval of the House 
     and Senate, can remove an office from coverage under labor-
     management provisions if exclusion is required because of 
     conflict of interest or Congress's constitutional 
     responsibilities; no such process applies now at the three 
     instrumentalities. (iv) The CAA, applying private-sector FMLA 
     rights, authorizes the employing office to recoup health 
     insurance costs from a covered employee who does not return 
     to work, to decline to restore ``key'' employees who take 
     FMLA leave, and to elect whether an employee must use 
     available paid annual or sick leave before taking leave 
     without pay; GAO and the Library have already been granted 
     these authorities, but coverage under the CAA would extend 
     these authorities to GPO. (v) CAA provisions that apply FLSA 
     rights would eliminate most use of compensatory time off, 
     ``credit hours,'' and compressed work schedules that may now 
     be used at the three instrumentalities in lieu of FLSA 
     overtime pay.
       (b) Administrative and enforcement processes. In the 
     Section 230 Study, the Board found that the three 
     instrumentalities are subject to--a patchwork of coverages 
     and exemptions . . . . The procedural regimes at the 
     instrumentalities differ from one another, are different from 
     the CAA and are different from that in the executive branch. 
     . . . [T]he multiplicity of regulatory schemes means that, in 
     some cases, employees have more procedural options available, 
     and in some cases, fewer. Additional procedural steps may 
     afford opportunities to employees in some cases, but may also 
     be more time-consuming and inefficient.74
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     \74\ Section 230 Study at iv.
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       In a number of respects, coverage under the CAA would grant 
     employees for the first time an avenue to have their claims 
     resolved by an administrative entity outside of the employing 
     instrumentality. Under present law, while employees of all 
     the instrumentalities may seek a remedy for unlawful 
     discrimination in federal district court, there are 
     limitations on the administrative remedies available outside 
     of their employing agency. At the Library, an employee 
     alleging discrimination may pursue a complaint through 
     internal Library procedures, but if the Librarian denies the 
     complaint, the employee has no right of appeal to an outside 
     administrative agency. Likewise, a GPO employee cannot appeal 
     administratively from the Public Printer's decision on a 
     complaint of discrimination on the basis of disability. The 
     GAO Personnel Appeals Board (``PAB''), which hears GAO 
     employee appeals, is administratively part of GAO, and its 
     Members are appointed by the Comptroller General.
       In the area of occupational safety and health, the CAA 
     requires the General Counsel of the Office of Compliance to 
     conduct inspections periodically and in response to charges 
     and authorizes the prosecution of violations. Although these 
     CAA provisions already cover GAO and the Library, they do not 
     now cover GPO, where no outside agency has authority to 
     inspect or prosecute occupational safety and health 
     violations.
       The application of the CAA would end the patchwork of 
     administrative coverages and exemptions and extend an 
     administrative mechanism for resolving complaints that is 
     administered by an office independent of the employing 
     instrumentalities. The counseling and mediation system of the 
     Office provides a fair, swift, and independent mechanism for 
     informally resolving disputes. The complaint and appeals 
     process (along with the option of pursuing a civil action) 
     provides an impartial method of adjudicating and appealing 
     those disputes that cannot be resolved informally.
       On the other hand, except in the areas of safety and 
     health, labor-management, and public access, the 
     investigatory and enforcement authorities now applicable at 
     the three instrumentalities are more extensive than those 
     under the CAA, especially without the authorities that the 
     Board recommends should be added to the CAA in Part II of 
     this Report. For example, internal procedures at the three 
     instrumentalities provide for investigation of every 
     discrimination complaint by the equal employment office of 
     the employing agency and the results of those investigations 
     are made available to the employee. Under the CAA, there is 
     no agency investigation, and an employer is not required to 
     disclose the results of any internal investigation to the 
     employee. Applying the CAA to the three instrumentalities 
     would not preclude continuing to make their internal 
     administrative and investigative procedures available for 
     employees who choose to use them, but employees might have to 
     choose whether to forgo using the internal procedures and 
     investigations in order to meet the time limits for 
     administrative or judicial claims resolution under the CAA.
       Furthermore, the PAB General Counsel for GAO and the 
     Special Counsel for GPO provide for prosecution of 
     discrimination and other violations under certain 
     circumstances. The CAA does not now provide for prosecution 
     of discrimination or most other kinds of violations.
       The Board also observes that the three instrumentalities 
     are now covered under federal-sector provisions of Title VII 
     and the ADEA that require equal employment opportunity 
     programs and affirmative employment plans, and that GAO's 
     programs and plans are reviewed by the PAB and GPO's programs 
     and plans are reviewed by the Equal Employment Opportunity 
     Commission (``EEOC''). The CAA contains no comparable 
     provisions.
       (c) Judicial processes and relief. Coverage under the CAA 
     would grant a private right of action that is not now 
     available to GPO employees to remedy FMLA and USERRA 
     violations and would clarify that GAO and Library employees 
     may use CAA judicial procedures to remedy EPPA, WARN Act, and 
     USERRA violations. The CAA would also grant the right to a 
     jury trial in all situations where it would be available in 
     the private sector, whereas a jury trial may not be available 
     now at the three instrumentalities in actions under the ADEA, 
     FMLA, or FLSA.
       On the other hand, while the right to judicial appeal to 
     the Federal Circuit is largely the same under the CAA as it 
     is under the provisions of labor-management law currently 
     applicable at the three instrumentalities, the CAA does not 
     allow the charging party to take appeals from unfair labor 
     practice decisions and does not provide for appeal of 
     arbitral awards involving adverse actions or performance-
     based actions.
       (d) Substantive Rulemaking Process. GAO and the Library are 
     already subject to substantive regulations promulgated by the 
     Board under CAA provisions applying rights under the EPPA, 
     WARN Act, and OSHAct, and the full application of CAA 
     coverage

[[Page 1566]]

     would also subject these two instrumentalities to the Board's 
     regulations implementing FLSA, FMLA, Chapter 71, and ADA 
     public access rights, and would subject GPO to all 
     substantive regulations under the CAA. Substantive 
     regulations are issued under section 304 of the CAA, which 
     authorizes the Board to issue regulations subject to approval 
     by the House and Senate. These regulations under the CAA must 
     generally be the same as those adopted by executive-branch 
     agencies under the laws made applicable by the CAA for the 
     private sector (or, under Chapter 71, for the federal 
     sector), or, if regulations are not adopted by the Office and 
     approved by the House and Senate, those executive-branch 
     agency regulations themselves are applied under the CAA in 
     most instances.75 The regulatory requirements made 
     applicable by the CAA are therefore established by regulatory 
     agencies independent of the employers being regulated.
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     \75\ To date, regulations have been adopted and submitted to 
     the House and Senate but not approved in the following areas: 
     OSHAct, public access under the ADA, application of labor-
     management rights to offices listed in Sec. 220(e) of the 
     CAA, and coverage of GAO and the Library under substantive 
     regulations with respect to EPPA, WARN Act, and OSHAct. 
     Regulations adopted by executive-branch agencies therefore 
     apply in all of these areas except Sec. 220(e), because 
     Sec. 411 of the CAA excepts from the default provision 
     regulations regarding the offices listed under 
     Sec. 220(e)(2). If the CAA covered the three 
     instrumentalities, Sec. 220(e) could affect them only if the 
     Board adopted regulations, approved by the House and Senate, 
     to exclude ``such other offices that perform comparable 
     functions,'' within the meaning of Sec. 220(e)(2)(H).
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       Currently, for the subject areas where the three 
     instrumentalities are not now subject to CAA regulations, the 
     substantive rights of employees at the three 
     instrumentalities are defined in most respects by government-
     wide regulations adopted by executive-branch agencies. 
     However, in a few areas, the heads of these instrumentalities 
     are granted the authority to define and delimit rights for 
     their employees by regulation. For example, the GAO Personnel 
     Act authorizes the Comptroller General to establish a labor-
     management program ``consistent'' with Chapter 71, and GAO's 
     order under this authority includes limits on appropriate 
     bargaining units and on the scope of bargaining that are more 
     restrictive than those in Chapter 71, as made applicable by 
     the CAA. The Comptroller General and the Librarian of 
     Congress have authority to promulgate substantive regulations 
     under the FMLA. The Public Printer is not bound to apply the 
     Labor Department's occupational safety and health standards, 
     provided he provides conditions ``consistent with'' those 
     standards. By contrast, if the CAA applied, these 
     instrumentalities would become subject to regulatory 
     requirements established by regulatory agencies independent 
     of the instrumentalities.
       2. Federal-Sector Option: Bring the three instrumentalities 
           fully under federal-sector provisions of law, including 
           the authority of executive-branch agencies as they 
           administer and enforce those provisions
       (a) Substantive rights. The substantive rights now 
     available at the three instrumentalities are mostly the same 
     as those that would become available under federal-sector 
     coverage. However, some changes would occur. For instance, 
     (i) Under the federal-sector regime, GAO and the Library 
     would no longer be covered under CAA provisions making 
     applicable the rights under the EPPA or WARN Act. (ii) GAO 
     and the Library would have coverage under the federal-sector 
     provisions of the FMLA, which do not allow the employer to 
     recoup health insurance costs from an employee who does not 
     return to work; or to limit the application of FMLA 
     restoration rights to ``key'' employees; or to elect whether 
     an employee must use available paid annual or sick leave 
     before taking leave without pay. (iii) Coverage under Chapter 
     71 would afford a greater scope of appropriate bargaining 
     units and collective bargaining than is now provided at GAO 
     under regulations issued by the Comptroller General under the 
     GAO Personnel Act.
       (b) Administrative and enforcement processes. The 
     administrative processes now in place at GAO, GPO, and the 
     Library are similar to, and, in many instances, the same as, 
     those in effect generally for the federal sector. Of the 
     three, GPO has the most federal-sector coverage, being 
     already subject, in most areas, to the authority of the EEOC, 
     Merit Systems Protection Board (``MSPB''), and Special 
     Counsel, which investigate, bring enforcement actions, and 
     hear appeals arising out of executive-branch agencies, and 
     the Office of Personnel Management (``OPM''), which 
     promulgates government-wide regulations under the FLSA and 
     FMLA and investigates and resolves FLSA complaints. Choosing 
     the federal-sector option at GPO would extend this existing 
     situation across the board. Furthermore, whereas GPO 
     employees' ADA complaints are now investigated and resolved 
     by GPO management without any right of appeal to, or 
     investigation and prosecution by, any outside agency or 
     office, federal-sector coverage would bring such complaints 
     under the authority of executive-branch agencies. Also, 
     regarding occupational safety and health at GPO, whereas no 
     outside agency can now conduct inspections, consider employee 
     complaints, require compliance, or resolve disputes regarding 
     occupational safety and health, application of federal-sector 
     coverage would cause these functions to be performed by the 
     Department of Labor. In addition, while GPO, GAO, and the 
     Library are currently required to have internal mechanisms 
     for investigating and resolving public-access complaints 
     under the ADA, applying the federal-sector regime would 
     extend the Attorney General's authority under Executive Order 
     12250 to review the three instrumentalities' regulations, to 
     coordinate implementation, and to bring enforcement actions.
       GAO is not now subject to executive-branch agencies' 
     authority in most respects, but was originally considered 
     part of the executive branch and remained subject to the 
     authority of the executive-branch agencies until the 1980 
     enactment of the GAO Personnel Act, which consolidated the 
     appellate, enforcement, and oversight functions that in the 
     executive branch are performed by the EEOC, the MSPB, and the 
     Special Counsel into the function of the GAO PAB and its 
     General Counsel.76 Applying federal-sector 
     coverage would, with respect to the CAA laws, restore the 
     PAB's responsibilities to the EEOC, MSPB, and Special 
     Counsel, which, unlike the PAB, are fully separate and 
     independent from regulated employing agencies. GAO is already 
     subject to OPM's government-wide regulations and claims-
     resolution authority under the FLSA.
---------------------------------------------------------------------------
     \76\ Legislative history explains that the GAO Personnel Act 
     was enacted to enable GAO to audit the executive-branch 
     personnel programs and agencies established under the Civil 
     Service Reform Act of 1978 without being subject to those 
     same programs and agencies. S. Rep. No. 96-540, 96th Cong. 
     (Dec. 20, 1979) (Governmental Affairs Committee), reprinted 
     in 1980 U.S. Code Cong. and Admin. News 50-53.
---------------------------------------------------------------------------
       The Library's internal claims processes are largely modeled 
     on those required and applied by executive-branch employing 
     agencies, but the Library has been exempted from the 
     authority of executive-branch agencies in most respects, with 
     the principal exception being FLRA authority over labor-
     management relations.77 Application of federal-
     sector coverage would, with respect to the CAA laws, extend 
     the authority of the EEOC, MSPB, the Special Counsel, and OPM 
     to include the Library and its employees.
---------------------------------------------------------------------------
     \77\ In an another area that is significant, though not 
     analogous to any of the laws made applicable by the CAA, the 
     Library is also subject to OPM's authority over job 
     classifications.
---------------------------------------------------------------------------
       (c) Judicial processes and relief. In most instances, 
     employees at the three instrumentalities are already covered 
     by the same judicial processes as federal-sector employees. 
     However, whereas PAB decisions may be reviewed only by appeal 
     to the Federal Circuit, federal-sector procedures would allow 
     suit and trial de novo after exhausting all administrative 
     remedies, even after decision on appeal to the EEOC or the 
     MSPB. On the other hand, GAO and Library employees would no 
     longer have a private right of action under FMLA, and, unlike 
     the CAA, which now provides for judicial review of OSHAct 
     decisions regarding GAO and the Library, final occupational 
     safety and health decisions under the federal-sector scheme 
     are made by the President.
       (d) Substantive rulemaking process. In a number of areas, 
     the three instrumentalities are already subject to the same 
     government-wide regulations as are in place in the federal 
     sector. GAO and GPO are subject to OPM's regulations under 
     the FLSA, GPO is subject to OPM's regulations under the FMLA, 
     and GPO and the Library are subject to FLRA's regulations 
     under Chapter 71. However, in a number of instances the three 
     instrumentalities are currently able to issue their own 
     regulations without reference to the regulations in the 
     federal sector, as described at page 33 above in the 
     discussion of the substantive rulemaking process under the 
     CAA option. Coverage by the federal-sector regime would 
     subject the three instrumentalities to uniform government-
     wide regulations in all areas.
       3. Private-Sector Option: Bring the three instrumentalities 
           fully under private-sector provisions of law, including 
           the authority of executive-branch agencies as they 
           administer and enforce those provisions
       (a) Substantive rights. The substantive rights and 
     responsibilities under the current regimes at the three 
     instrumentalities are generally similar to what would be 
     provided under private-sector provisions of law, with the 
     notable exception of the area of labor-management relations 
     where application of private-sector substantive law would 
     grant to employees at the three instrumentalities certain 
     rights, such as the right to strike, unavailable to other 
     federal government employees. There are also a number of 
     other differences between private-sector provisions and the 
     substantive provisions of law currently applicable at the 
     three instrumentalities. For example, the application of 
     private-sector provisions of the FLSA would eliminate most 
     use of compensatory time in lieu of overtime pay. Also, 
     private-sector FMLA provisions would apply at GPO, which 
     allow the employer to recoup health insurance costs from an 
     employee who does not return to work; to limit the 
     application of

[[Page 1567]]

     FMLA restoration rights to ``key'' employees; and to elect 
     whether an employee must use available paid annual or sick 
     leave before taking leave without pay. Finally, GPO, which is 
     not now covered by WARN Act or EPPA rights, would become 
     subject to those laws.
       (b) Administrative processes. If provisions of private-
     sector law were applied, the greatest impact would be in the 
     area of administrative processes. Under private-sector 
     schemes generally, with the exception of occupational safety 
     and health and labor-management relations, the agency's 
     responsibility is limited to investigation and prosecution, 
     without administrative adjudication and appeal.
       The consequences of application of private-sector 
     administrative schemes would be different at each 
     instrumentality. The most significant change would be at the 
     Library, where outside agencies now have little role in 
     either investigation and prosecution or in administrative 
     adjudication and appeals. If private-sector coverage applied, 
     an agency outside of the Library would have authority to 
     investigate and prosecute discrimination, FLSA, FMLA, and 
     other laws. At GAO and GPO, the present adjudicatory and 
     prosecutory schemes would be replaced by a new prosecutorial 
     regime handled by agencies ordinarily responsible for 
     private-sector enforcement. For example, FLSA and FMLA 
     enforcement would be handled by the Labor Department in its 
     investigatory and prosecutorial role, rather than OPM and the 
     PAB at GAO and OPM and MSPB at GPO. However, under the 
     currently applicable provisions of law and regulation that 
     govern the federal sector with respect to the FLSA, OPM has 
     authority to direct GPO and GAO to comply, whereas under the 
     provisions of law and regulation that govern the private 
     sector, the Labor Department would have to bring suit to 
     enforce compliance. In the area of discrimination at GPO, 
     rather than appeal rights to EEOC and MSPB, there would be 
     investigation and prosecution by the EEOC, while at GAO, the 
     PAB's role would be replaced by EEOC investigation and 
     prosecution. In the area of occupational safety and health, 
     the enforcement responsibilities for GAO and the Library 
     would be transferred from the OC to the Labor Department, and 
     the Labor Department would also assume these responsibilities 
     for GPO, where currently no outside agency exercises these 
     responsibilities.
       (c) Judicial processes and relief. In the area of judicial 
     processes and relief, if private-sector laws were applied, a 
     private right of action would be added under a number of 
     provisions where it does not currently exist. For example, 
     GPO employees would gain a private right of action under FMLA 
     and USERRA. GAO and Library employees would gain an 
     unambiguous private right of action under WARN, USERRA, and 
     EPPA. Moreover, punitive damages are part of the private-
     sector remedial scheme, whereas they are currently 
     unavailable at the three instrumentalities.
       (d) Adoption of substantive regulations. Application to the 
     three instrumentalities of the substantive rulemaking process 
     governing the private sector would resolve concerns 
     respecting independent rulemaking authority under the regimes 
     currently in place at these instrumentalities. The agencies 
     issuing regulations that govern the private sector have no 
     employment relationship with the community they regulate, 
     unlike the three instrumentalities themselves when they 
     promulgate substantive rules. Moreover, a switch to private-
     sector coverage in the areas of OSHAct, WARN Act, and EPPA 
     would remove GAO and the Library, which are currently subject 
     to CAA substantive rules in those areas, from the section 304 
     process of adoption and issuance of substantive regulations.
       The three instrumentalities are currently covered by a 
     number of civil service and other protections which have no 
     analogue in the CAA and which the Board does not undertake to 
     review here. The Board determined that such substantive 
     rights under federal-sector or other laws having no analogue 
     in the CAA, and processes used to implement, remedy, or 
     enforce such rights, should not be affected by the coverage 
     under any of the options. However, to avoid creating 
     duplicative rights and remedies, the application of the CAA 
     or of analogous federal-sector or private-sector provisions 
     should supersede existing provisions affording substantially 
     similar substantive rights or establishing administrative, 
     judicial, or rulemaking processes to implement, remedy, or 
     enforce such rights.
     D. Recommendations
       1. The current ``patchwork of coverages and exemptions'' 
           78 at GAO, GPO, and the Library should be 
           replaced by coverage under either the CAA or the 
           federal-sector regime
       In its Section 230 Study, the Board described the current 
     systems in place at the instrumentalities, and stated: 
     ``Congressional decisions made over many years in different 
     statutes subject the three instrumentalities to the 
     authorities of certain executive-branch agencies with respect 
     to certain laws, but exempt them from executive-branch 
     authority with respect to others. . . . The result is a 
     patchwork of coverages and exemptions from the procedures 
     afforded under civil service law and the authority of 
     executive-branch agencies, and from the procedures afforded 
     under the CAA and the authority of the Office of 
     Compliance.'' 79
---------------------------------------------------------------------------
     \78\ Section 230 Study at iv.
     \79\ Id.
---------------------------------------------------------------------------
       In preparing this 1998 Report, the Board considered whether 
     to recommend that serious gaps in coverage at the three 
     instrumentalities be filled without fundamentally changing 
     the regimes already in place at each instrumentality. 
     However, the Board unanimously rejected that piecemeal 
     approach. The ``patchwork'' nature of existing coverages and 
     exemptions yields complexity and areas of legal uncertainty 
     in coverage at the three instrumentalities. Furthermore, in 
     several areas, the three instrumentalities are not now 
     subject to the authority of any outside regulatory or 
     personnel agency to promulgate regulations, resolve claims, 
     or exercise enforcement authorities.
       Accordingly, the Board unanimously concluded that this 
     current system is less comprehensive and effective than, and 
     should be replaced by, coverage under one of the options 
     described in the previous section. The Board also agreed 
     unanimously that coverage under the private-sector regime is 
     not the best of the three options it considered. However, the 
     Board did not reach a consensus as to whether the CAA or the 
     laws and regulations applicable in the federal sector should 
     be made applicable to GAO, GPO, and the Library. Instead, for 
     the reasons stated below, Members Adler and Seitz concluded 
     that the three instrumentalities should be covered under the 
     CAA, with certain modifications, and Chairman Nager and 
     Member Hunter concluded that the three instrumentalities 
     should be made fully subject to the laws and regulations 
     generally applicable in the federal sector.
       2. Members Adler and Seitz have concluded that GAO, GPO, 
           and the Library should be covered under the CAA, 
           including the authority of the Office of Compliance, 
           and that the CAA, as applied to these 
           instrumentalities, should be modified--(a) to add 
           Office of Compliance enforcement authorities as 
           recommended in Part II of this Report and (b) to 
           preserve certain rights now applicable at the three 
           instrumentalities.
       Members Adler and Seitz concluded that the three 
     instrumentalities should be brought under the CAA primarily 
     for two reasons. As noted above, the Board in the Section 230 
     Study decided that its statutory mandate was to evaluate the 
     ``comprehensiveness and effectiveness'' of the existing 
     statutory and regulatory regimes at the three 
     instrumentalities by comparing them to the regime under the 
     CAA. The application of the CAA to the three 
     instrumentalities would assure that this standard of 
     ``comprehensiveness and effectiveness'' is achieved 
     throughout the legislative branch.
       Second, all laws made applicable by the CAA are 
     administered by a single Office. The advantages of this 
     unified structure are that employees can turn to a single 
     place for assistance; efficient and uniform procedures under 
     a model administrative dispute resolution system have been 
     established for various types of complaints; and a single 
     body of substantive regulations and decisions, which is as 
     internally consistent as possible within the constraints of 
     applicable law, is being developed. Extending the 
     jurisdiction of the Office to include GAO, GPO, and the 
     Library for all of the laws made applicable by the CAA will 
     foster such efficient and consistent administration of the 
     laws at the three instrumentalities, and will put the 
     expertise and resources of the Office of Compliance to full 
     use throughout the legislative branch.
       The conclusions of Members Adler and Seitz are premised and 
     dependent upon the CAA's being applied to the three 
     instrumentalities with certain modifications. First, the Act 
     should be amended to enlarge the Office of Compliance's 
     enforcement authorities as recommended above in Part II of 
     this Report. The Board there described its determination that 
     certain additional provisions of CAA laws should be made 
     applicable to all employing offices of the legislative branch 
     that are now covered under the CAA, and, for the reasons 
     discussed above, such additional provisions should be made 
     applicable to GAO, GPO, and the Library as well.
       Second, the rights extended by the CAA in the House and 
     Senate and the smaller instrumentalities are subject to 
     certain limitations that do not apply under the regimes now 
     at GAO, GPO, and the Library. These limitations appear to 
     have been included in the CAA to preserve the independence of 
     the House and Senate, to protect against publicity attendant 
     to complaints or litigation that Congress believed might 
     unduly affect the legislative and electoral processes, and to 
     avoid labor activities that Congress was concerned might, in 
     certain situations, engender conflict of interest or 
     interfere with fulfillment by Congress of its constitutional 
     responsibilities. However sound these reasons may have been 
     with respect to Congressional offices for which the CAA was 
     principally designed, these reasons have less force as to 
     GAO, GPO, and the Library in view of their respective roles 
     in the legislative process.

[[Page 1568]]

       Members Adler and Seitz therefore believe that limitations 
     such as those imposed by sections 220(c)(2)(H) and 416 of the 
     CAA should not apply at GAO, GPO, and the Library. Section 
     220(c)(2)(H) of the CAA establishes a process by which the 
     Board, with the approval of the House and Senate, may remove 
     an office from coverage under some or all provisions of 
     labor-management law if ``required because of--(i) a conflict 
     of interest or appearance of a conflict of interest; or (ii) 
     Congress' constitutional responsibilities.'' 80 No 
     such process applies under labor-management law now 
     applicable at GAO, GPO, and the Library, and none should be 
     made applicable to them under the CAA. Section 416 of the CAA 
     makes the counseling, mediation, and administrative hearing 
     processes of the CAA ``confidential.'' The CAA, in being made 
     applicable to these three instrumentalities, should not 
     impose confidentiality requirements except to the same extent 
     that confidentiality is imposed in proceedings by the 
     executive-branch agencies implementing the CAA laws and to 
     the extent necessary to facilitate effective counseling and 
     mediation under Sec. Sec. 402 and 403 of the 
     CAA.81
---------------------------------------------------------------------------
     \80\ Section 220(e)(1)(B) of the CAA.
     \81\ Cf. 5 U.S.C. Sec. 574 (duties of confidentiality in 
     mediation or other proceedings under the Administrative 
     Dispute Resolution Act).
---------------------------------------------------------------------------
       3. Chairman Nager and Member Hunter have concluded that the 
           federal-sector model should apply, including the 
           authority of executive-branch personnel-management and 
           regulatory agencies to implement and enforce the laws.
       Chairman Nager and Member Hunter have concluded that GAO, 
     GPO, and the Library should be brought under the statutory 
     and regulatory regime that applies generally in the federal 
     sector, including the authority of executive-branch agencies 
     as they administer and enforce laws in the federal sector, 
     for several reasons. Insofar as the present statutory scheme 
     is not ``comprehensive and effective'' because it does not 
     provide employees access to an outside regulatory entity to 
     promulgate regulations and resolve claims, this problem could 
     be solved by extending the authority of the executive-branch 
     agencies over the three instrumentalities.
       GAO, GPO, and the Library are already subject to many of 
     the same personnel statutes that apply generally in the 
     federal sector and, in some instances, to the authority of 
     executive-branch agencies as well. Making the federal-sector 
     regime fully applicable would be less disruptive to the three 
     instrumentalities than replacing the coverage already in 
     effect with either the CAA or private-sector coverage.
       Furthermore, employment at these three instrumentalities is 
     more akin to the large civilian departments and agencies of 
     the executive branch, for which federal-sector laws and 
     regulations were designed, than the employing offices of the 
     House and Senate, for which the CAA was primarily designed. 
     For example, substantive provisions of federal-sector 
     statutes and regulations in such areas as overtime pay, 
     family and medical leave, and advance notification of layoffs 
     are designed to dove-tail with merit-based retention systems, 
     position-classification systems, leave policies, and other 
     personnel practices that are found generally in both the 
     executive branch and the three large instrumentalities, but 
     that are not common in either House and Senate offices or the 
     private sector. Also, while federal-sector law in some 
     respects limits the right to sue, it also affords 
     administrative procedures and remedies that exceed what are 
     available under the CAA or in the private sector. Such 
     procedures have traditionally been seen as appropriate to 
     avoid politicized employment and to provide for 
     accountability in large, apolitical bureaucracies. In 
     congressional staff, where political appointment is generally 
     seen as proper and where accountability is achieved through 
     the electoral process, these federal-sector procedures and 
     remedies have been considered inappropriate. However, the 
     three instrumentalities have traditionally been seen as 
     having many of the attributes of the large, apolitical 
     bureaucracy, and employment practices have largely followed 
     the federal-sector model.
       Placing GAO, GPO, and the Library under federal-sector 
     coverage would also have the salutary effect of giving 
     Congress the experience of living under the laws that it 
     enacts for the executive branch. According to the authors of 
     the CAA, a principal goal of that Act was to make Congress 
     live under the laws that it enacts for the private sector, so 
     that Congress can better understand the consequences of those 
     laws. Congress might likewise better understand the 
     consequences of the laws that it enacts for the executive 
     branch if the large instrumentalities of Congress were fully 
     subject to those laws.

  Appendix I--Inapplicable Private-Sector Provisions of the Laws Made 
                         Applicable by the CAA

       This table describes significant statutory provisions that 
     are contained in the laws made applicable by the CAA (the 
     ``CAA laws'') and that apply in the private sector, but that 
     do not apply fully to the legislative branch. ``Apply'' means 
     that a provision is referenced and incorporated by the CAA, 
     or a substantially similar provision is set forth in the CAA, 
     or the provision applies to the legislative branch by its own 
     terms without regard to the CAA. Whether provisions apply to 
     GAO, GPO, and the Library of Congress is not discussed in 
     this table, but is analyzed in the tables contained in 
     Appendix III of this Report.

 TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (``TITLE VII'') AND 42 U.S.C.
                         Sec. Sec.  1981, 1981a
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
1. Employment discrimination against individuals    Secs. 703(a)(1); 42
 employed by other employers. Sec.  703(a)(1) of     U.S.C. Sec. Sec.
 Title VII forbids employment discrimination by      2000e-2(a)(1).
 covered employers against ``any individual.''
 Courts have held that this prohibition extends
 beyond the immediate employer-employee
 relationship under certain circumstances,
 including where a defendant who does not employ
 an individual controls that individual's access
 to employment with another employer and denies
 access based on unlawful criteria.1 Under the
 CAA, an employing office may only be charged with
 discrimination by a ``covered employee,'' defined
 as an employee of the nine legislative-branch
 employers listed in Sec.  101(3) of the CAA.
2. Publication of discriminatory notices or         Sec. 704(b); 42
 advertisements. Publication of discriminatory       U.S.C. Sec.  2000e-
 notices or advertisements is prohibited under       3(b).
 Sec.  704(b) of Title VII. Under the CAA, a
 notice or advertisement might be evidence of
 discriminatory animus, but Sec.  704(b) of Title
 VII, which makes unlawful the mere publication of
 a discriminatory notice or advertisement, is not
 referenced by the CAA.
3. Coverage of unions. Discrimination by private-   Secs. 703(c), 704,
 sector unions is forbidden by Sec. Sec.  703(c)     706; 42 U.S.C. Sec.
 and 704 of Title VII and is subject to              Sec.  2000e-2(c),
 enforcement under Sec.  706. The CAA does not       2000e-3, 2000e-5.
 make these provisions applicable against unions
 discriminating against legislative branch
 employees, because Sec.  201 of the CAA forbids
 discrimination only in ``personnel actions'' and
 Sec. Sec.  401-408 of the CAA allow complaints
 only against employing offices. (Unlawful
 discrimination by a union may be an unfair labor
 practice under Sec.  220 of the CAA, but the
 procedures and remedies under that section are
 very different from those under Title VII and
 under the CAA for violations of Title VII rights
 and protections.) A similar situation exists in
 the executive branch, where Sec.  717 of Title
 VII does not cover discrimination by unions
 against executive branch employees, but courts
 and the EEOC are divided as to whether the
 private-sector provisions of Title VII and 42
 U.S.C. Sec.  1981 apply by their own terms to
 such discrimination. See generally II Lindemann &
 Grossman, Employment Discrimination Law 1320,
 1575 (3d ed. 1996). Similarly, differing views
 might be expressed with respect to whether these
 private-sector provisions apply by their own
 terms to forbid discrimination by unions against
 legislative-branch employees.
4. Consideration of political party, domicile, or   Sec. 703; 42 U.S.C.
 political compatibility. Under the CAA, Sec.  502   Sec.  2000e-2.
 provides that consideration of political party,
 domicile, or political compatibility by Members,
 committees, or leadership offices shall not be a
 violation of Sec.  201, which is the section that
 makes applicable the rights and protections of
 Title VII. Under Title VII, there is no specific
 immunity for consideration of political party,
 domicile, or political compatibility.
 
B. ENFORCEMENT
 
Agency Enforcement Authorities:
    5. Agency responsibility to investigate         Sec. 706(b); 42
     charges filed by an employee or Commission      U.S.C. Sec.  2000e-
     Member. Title VII requires the EEOC to          5(b).
     investigate charges filed by either an
     employee or a Member of the Commission. The
     CAA neither references these provisions nor
     sets forth similar provisions authorizing
     agency investigation.
    6. Agency responsibility to ``endeavor to       Sec. 706(b); 42
     eliminate'' the violation by informal           U.S.C. Sec.  2000e-
     conciliation. Title VII requires that, upon     5(b).
     the filing of a charge, if the EEOC
     determines that ``there is reasonable cause
     to believe that the charge is true,'' the
     agency must ``endeavor to eliminate any such
     alleged unlawful employment practice'' by
     informal conference, conciliation, and
     persuasion. The CAA does not reference these
     provisions; it requires the mediation of
     allegations of discrimination and requires
     approval of settlements by the Executive
     Director, but does not require any person
     involved in the mediation or in approving the
     settlement to ``endeavor to eliminate'' the
     alleged discrimination.
    7. Agency authority to bring judicial           Sec. 706(f)(1); 42
     enforcement actions. Title VII authorizes the   U.S.C. Sec.  2000e-
     EEOC to bring a civil action. The CAA neither   5(f)(1).
     references these provisions nor sets forth
     similar provisions authorizing an agency to
     bring enforcement proceedings.
    8. Agency authority to intervene in private     Sec. 706(f)(1); 42
     civil action of general public importance.      U.S.C. Sec.  2000e-
     Under Title VII, the EEOC may intervene in a    5(f)(1).
     private action of general public importance.
     The CAA neither references these provisions
     nor sets forth similar provisions authorizing
     an agency to intervene in private actions.
    9. Agency authority to apply to court for       Sec. 706(i); 42
     enforcement of judicial orders. Title VII       U.S.C. Sec.  2000e-
     authorizes the EEOC to commence judicial        5(i).
     proceedings to compel compliance with
     judicial orders. The CAA does not reference
     these provisions. Sec.  407(a)(2) of the CAA
     enables the Office of Compliance to petition
     the Court of Appeals to enforce final orders
     of a hearing officer or the Board, but the
     CAA sets forth no provision enabling an
     agency to seek the enforcement of judicial
     orders.

[[Page 1569]]

 
    10. Grant of subpoena power and other powers    Secs. 709(a), 710;
     for investigations and hearings. Title VII      42 U.S.C. Sec. Sec.
     grants the EEOC powers to gain access to         2000e-8(a), 2000e-
     evidence, including subpoena powers, in         9.
     support of its investigations and hearings.
     The CAA neither references these provisions
     nor sets forth similar provisions granting an
     agency investigatory powers. (Sec.  405(f) of
     the CAA grants subpoena powers to hearing
     officers, and Sec.  408 authorizes civil
     actions in which courts may issue subpoenas,
     but these CAA provisions do not subpoena
     powers for use in agency investigation.)
    11. Recordkeeping and reporting requirements.   Sec. 709(c); 42
     Title VII requires employers in the private     U.S.C. Sec.  2000e-
     sector to make and preserve such records and    8(c).
     make such reports therefrom as the EEOC shall
     prescribe by regulation or order, after
     public hearing, as reasonable, necessary, or
     appropriate for enforcement. The CAA does not
     reference these provisions, and the Board, in
     issuing substantive regulations with respect
     to several other laws, found that
     recordkeeping and reporting requirements
     under those laws were not made applicable by
     the CAA.
Administrative and Judicial Procedures and
 Remedies:
    12. Suing individuals as agent; possibility of  Sec. 701(b); 42
     individual liability. Because the definition    U.S.C. Sec.
     of ``employer'' in Title VII includes ``any     2000e(b).
     agent,'' a plaintiff may choose to sue the
     employer by naming an appropriate individual
     in the capacity of agent. Furthermore, while
     many recent cases hold that individuals may
     not be held individually liable in
     discrimination cases, some cases hold to the
     contrary and the issue remains unresolved.
     See generally II Lindemann & Grossman,
     Employment Discrimination Law 1314-16 (3d ed.
     1996). Under the CAA, individuals may be
     neither sued nor held individually liable,
     because only an employing office may be named
     as respondent or defendant under Sec. Sec.
     401-408 and all awards and settlements must
     generally be paid out of an account of the
     Office of Compliance under Sec.  415(a).
    13. Enforceability of subpoenas for             Sec. 706(f)(1); 42
     information or documents within the             U.S.C. Sec.  2000e-
     jurisdiction of the House or Senate. Title      5(f)(1).
     VII authorizes civil actions in which courts
     exercise their ordinary subpoena authority.
     The CAA also authorizes civil actions, as
     well as administrative adjudications, but
     such authorization is subject to Sec.  413 of
     the CAA, by which the House and Senate
     decline to waive ``any power of either the
     Senate or the House of Representatives under
     the Constitution,'' including under the
     ``Journal of Proceedings Clause,'' and under
     the rules of either House relating to records
     and information.
    14. Appointment of counsel and waiver of fees.  Sec. 706(f)(1); 42
     Sec.  706(f)(1) of Title VII authorizes the     U.S.C. Sec.  2000e-
     court to appoint an attorney for the            5(f)(1).
     complainant in a private action and to waive
     costs. The CAA does not reference Sec.
     706(f)(1). In judicial proceedings under the
     CAA, the courts may exercise their general
     powers to authorize proceedings in forma
     pauperis and waive fees and costs and appoint
     counsel if a party is unable to pay. See 28
     U.S.C. Sec.  1915. In administrative
     proceedings under the CAA, there are no fees
     and costs to waive, but there is also no
     power to appoint counsel.
    15. Agency authority to apply for TRO or        Sec. 706(f)(2); 42
     preliminary relief. Sec.  706(f)(2) of Title    U.S.C. Sec.  2000e-
     VII authorizes the EEOC to bring an action      5(f)(2).
     for a temporary restraining order (``TRO'')
     or preliminary relief pending resolution of a
     charge. The CAA neither references Sec.
     706(f)(2) nor sets forth similar provisions
     authorizing TROs or preliminary relief, and
     the CAA does not allow a covered employee to
     commence an administrative complaint or civil
     action until after having completed periods
     of counseling and mediation and an additional
     period of at least 30 days
    16. Private right to sue immediately, without   42 U.S.C. Sec.
     having exhausted administrative remedies. An    1981.
     employee alleging race or color
     discrimination who prefers not to pursue a
     remedy through the EEOC may choose to sue
     immediately under 42 U.S.C. Sec.  1981. The
     CAA allows a covered employee to file an
     administrative complaint or commence a civil
     action only after having completed periods of
     counseling and mediation and an additional
     period of at least 30 days..
Defense:
    17. Defense for good faith reliance on agency   Sec. 713(b); 42
     interpretations. Sec.  713(b) of Title VII      U.S.C. Sec.  2000e-
     provides a defense for an employer who relies   12(b).
     in good faith on an interpretation by the
     EEOC. The CAA does not specifically reference
     Sec.  713(b), but the Board decided that a
     similar defense in the Portal-to-Portal Act
     (``PPA'') was incorporated into Sec.  203 of
     the CAA and applies where an employing office
     relies on an interpretation of the Wage and
     Hour Division.
Punitive Damages:
    18. Punitive damages. 42 U.S.C. Sec.            42 U.S.C. Sec. Sec.
     1981a(b)(1) authorizes punitive damages in      1981, 1981a(b)(1).
     cases under Title VII where malice or
     reckless indifference is demonstrated, and
     under 42 U.S.C. Sec.  1981 punitive damages
     may be warranted in cases of race or color
     discrimination. However, Sec.  1981a(b)(1) is
     not referenced by the CAA at all, and Sec.
     1981 is referenced by Sec.  201(b)(1)(B) of
     the CAA with respect to the awarding of
     ``compensatory damages'' only; furthermore,
     Sec.  225(c) of the CAA expressly precludes
     the awarding of punitive damages.
 
C. OTHER AGENCY AUTHORITIES
 
19. Notice-posting requirements. Title VII          Sec. 711; 42 U.S.C.
 requires employers, employment agencies, and        Sec.  2000e-10.
 unions to post notices prepared or approved by
 the EEOC, and establishes fines for violation.
 The CAA does not reference these provisions, and
 the Board, in issuing substantive regulations
 with respect to several other laws, found that
 notice-posting requirements under those laws were
 not incorporated by the CAA.
20. Authority to issue interpretations and          Sec. 713(b); 42
 opinions. Sec.  713(b) of Title VII establishes a   U.S.C. Sec.  2000e-
 defense for good-faith reliance on ``any written    12(b).
 interpretation and opinion'' of the EEOC, and the
 EEOC has established a process by which ``[a]ny
 interested person desiring a written title VII
 interpretation or opinion from the Commission may
 make such a request.'' 29 C.F.R. Sec.  1601.91 et
 seq. The CAA does not reference Sec.  713(b)
 specifically. Furthermore, as noted on page 4,
 row 17, above, the Board decided that the defense
 for good-faith reliance stated in the PPA, which
 is similar to the defense in Sec.  713(b), was
 incorporated into Sec.  203 of the CAA; but the
 Board also then stated that ``it seems unwise, if
 not legally improper, for the Board to set forth
 its views on interpretive ambiguities in the
 regulations outside of the adjudicatory context
 of individual cases,'' and ``the Board would in
 the exercise of its considered judgment decline
 to provide authoritative opinions to employing
 offices as part of its ``education'' and
 ``information'' programs.'' 142 Cong. Rec. S221,
 S222-S223 (daily ed. Jan. 22, 1996).
------------------------------------------------------------------------
 1 See, e.g., Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C.
  Cir. 1973) (``nowhere are there words of limitation that restrict
  references in the Act to `any individual' as comprehending only an
  employee of the employer,'' nor could the court perceive ``any good
  reason to confine the meaning of `any individual' to include only
  former employees and applicants for employment, in addition to present
  employees''); Moland v. Bil-Mar Foods, 994 F.Supp. 1061, 1075 (N.D.
  Iowa 1998) (interlocutory appeal certified) (trucking company's
  employee assigned to scale house on processing-plant premises could
  maintain sex discrimination complaint against processing company);
  King v. Chrysler Corp., 812 F.Supp. 151, 153 (E.D. Mo. 1993) (cashier
  employed by cafeteria on automobile manufacturer's premises need not
  be employee of manufacturer to sue manufacturer under Title VII);
  Pelech v. Klaff-Joss, L.P., 815 F.Supp. 260, 263 (N.D. Ill. 1993)
  (cleaning company and its chairman held potentially liable under Title
  VII for causing a high-rise building to fire a security guard).


         AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 (``ADEA'')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
1. Employment discrimination against individuals    Sec. 4(a)(1); 29
 employed by other employers. Sec. 4(a)(1) of the    U.S.C. Sec.
 ADEA forbids employment discrimination by covered   623(a)(1).
 employers against ``any individual.'' As
 discussed at page 1, row 1, above, courts have
 held that a Title VII provision forbidding
 discrimination against ``any individual'' extends
 beyond the immediate employer-employee
 relationship under certain circumstances,
 including where a defendant who does not employ
 an individual controls that individual's access
 to employment with another employer and denies
 access based on unlawful criteria. Under the CAA,
 an employing office may only be charged with
 discrimination by a ``covered employee,'' defined
 as an employee of the nine legislative-branch
 employers listed in Sec. 101(3).
2. Reduction of wages to achieve compliance. Sec.   Sec. 4(a)(3); 29
 4(a)(3) of the ADEA forbids employers in the        U.S.C. Sec.
 private sector to reduce the wage rate of any       623(a)(3).
 employee in order to comply with the ADEA. Sec.
 4(a)(3) is not referenced by the CAA, and Sec. 15
 of the ADEA, which is referenced by Sec.
 201(a)(2) of the CAA, contains a subsection (f)
 that specifically precludes the application of
 any provision outside of Sec. 15.
3. Publication of discriminatory notices or         Sec. 4(e); 29 U.S.C.
 advertisements. Publication of discriminatory       Sec. 623(e).
 notices or advertisements is prohibited by Sec.
 4(e) of the ADEA. Under the CAA, a notice or
 advertisement might be evidence of discriminatory
 animus, but Sec. 4(e) of the ADEA, which makes
 unlawful the mere publication of a discriminatory
 notice or advertisement, is not referenced by the
 CAA, and Sec. 15 of the ADEA, which is referenced
 by Sec. 201(a)(2) of the CAA, contains a
 subsection (f) that specifically precludes the
 application of any provision outside of Sec. 15.
4. Coverage of unions. Sec. 4(c)-(e) of the ADEA    Secs. 4(c)-(e), 7;
 forbids discrimination by unions in the private     29 U.S.C. Sec. Sec.
 sector, and these provisions may be enforced        623(c)-(e), 626.
 against private-sector unions under Sec. 7 of the
 ADEA. The CAA does not make these provisions
 applicable to unions discriminating against
 legislative branch employees, because Sec. 201 of
 the CAA only forbids discrimination in
 ``personnel actions'' and Sec. Sec. 401-408 allow
 complaints only against employing offices.
 (Unlawful discrimination by a union may be an
 unfair labor practice under Sec. 220 of the CAA,
 but the procedures and remedies under that
 section are very different from those under the
 ADEA and under the CAA for violations of ADEA
 rights and protections.) As noted at page 1, row
 3, above, a similar situation exists in the
 executive branch, where Sec. 717 of Title VII
 does not cover discrimination by unions against
 executive branch employees, but courts and the
 EEOC are divided as to whether the private-sector
 provisions of Title VII and 42 U.S.C. Sec. 1981
 apply by their own terms to such discrimination.
 Similarly, differing views might be expressed
 with respect to whether the private-sector
 provisions of the ADEA apply by their own terms
 to forbid discrimination by unions against
 legislative-branch employees.
5. Mandatory retirement for state and local police  Sec. 4(j); 29 U.S.C.
 forces. Sec. 4(j) of the ADEA allows age-based      Sec. 623(j).
 hiring and firing of state and local law
 enforcement officers. The CAA does not reference
 Sec. 4(j) of the ADEA, and Sec. 15 of the ADEA,
 which is referenced by Sec. 201(a)(2) of the CAA,
 contains a subsection (f) that specifically
 precludes the application of any provision
 outside of Sec. 15. Furthermore, the CAA does not
 contain any provisions similar to Sec. 4(f) of
 the ADEA providing an exception for the Capitol
 Police. However, the Capitol Police Retirement
 Act (``CPRA'), 5 U.S.C. Sec. 8425, imposes age-
 based mandatory retirement for Capitol Police
 Officer. The CAA does not state expressly whether
 it repeals the CPRA, but the Federal Circuit held
 that the application of ADEA rights and
 protections by the Government Employee Rights
 Act, a predecessor to the CAA that applied
 certain rights and protections to the Senate, did
 not implicitly repeal the CPRA. Riggin v. Office
 of Senate Fair Employment Practices, 61 F.3d 1563
 (Fed. Cir. 1995).
6. State and local police officers entitlement to   Sec. 4(j); 29 U.S.C.
 job-performance testing to continue employment      Sec. 623(j).
 after retirement age. Under Sec. 4(j) of the
 ADEA, after a study and rulemaking by the Labor
 Secretary are completed, state and local law
 enforcement officers who exceed mandatory
 retirement age will become entitled to an annual
 opportunity to demonstrate job fitness to
 continue employment. The CAA does not reference
 Sec. 4(j) of the ADEA, and Sec. 15 of the ADEA,
 which is referenced by Sec. 201(a)(2) of the CAA,
 contains a subsection (f) that specifically
 precludes the application of any provision
 outside of Sec. 15. (Whether the Capitol Police
 remain subject to mandatory retirement at all is
 discussed in row 5 above.).

[[Page 1570]]

 
7. Age-based mandatory retirement of executives     Sec. 12(c); 29
 and high policy-makers. Sec. 12(c) of the ADEA      U.S.C. Sec. 631(c).
 allows aged-based mandatory retirement for bona
 fide executives and high policy-makers in the
 private sector. The CAA does not reference Sec.
 12(c) of the ADEA, and Sec. 15 of the ADEA, which
 is referenced by Sec. 201(a)(2) of the CAA,
 contains a subsection (f) that specifically
 precludes the application of any provision
 outside of Sec. 15.
8. Consideration of political party, domicile, or   Sec. 4; 29 U.S.C.
 political compatibility. Under the CAA, Sec. 502    Sec. 623.
 provides that consideration of political party,
 domicile, or political compatibility by Members,
 committees, or leadership offices shall not be a
 violation of Sec. 201, which is the section that
 makes applicable the rights and protections of
 the ADEA. Under the ADEA, there is no specific
 immunity for consideration of political party,
 domicile, or political compatibility.
 
B. ENFORCEMENT....................................
 
Agency Enforcement Authorities:
    9. Grant of subpoena power and other powers     Sec. 7(a); 29 U.S.C.
     for investigations and hearings. The ADEA       Sec. 626(a),
     grants the EEOC subpoena and other              referencing Sec. 9
     investigatory powers for use in                 of FLSA, 29 U.S.C.
     investigations and hearings. The CAA neither    Sec. 209.
     references these provisions nor sets forth
     similar provisions granting an agency
     investigatory powers. (Sec. 405(f) of the CAA
     grants subpoena powers to hearing officers,
     and Sec. 408 authorizes civil actions in
     which courts may issue subpoenas, but these
     CAA provisions do not grant subpoena powers
     for use in agency investigation).
    10. Authority to receive and investigate        Sec. 7(a), (d); 29
     charges and complaints and to conduct           U.S.C. Sec. 626(a),
     investigations on agency's initiative. Under    (d), and
     authority of Sec. 7 of the ADEA, the EEOC       referencing Sec.
     investigates employee charges of ADEA           11(a) of FLSA, 29
     violations and initiates investigations on      U.S.C. Sec. 211(a).
     its own initiative. The CAA neither
     references these provisions nor sets forth
     similar provisions authorizing agency
     investigations.
    11. Recordkeeping and reporting requirements.   Secs. 7(a); 29
     The ADEA empowers the EEOC to require the       U.S.C. Sec. 626(a),
     keeping of necessary and appropriate records    referencing Sec.
     in accordance with the powers in Sec. 11 of     11(c) of FLSA, 29
     the FLSA. That section requires employers in    U.S.C. Sec. 211(c).
     the private sector to make and preserve such
     records and make such reports therefrom as
     the agency shall prescribe by regulation or
     order as necessary or appropriate for
     enforcement. EEOC regulations specify the
     ``payroll'' records that employers must
     maintain and preserve for at least 3 years
     and the ``personnel or employment'' records
     that employers must maintain and preserve for
     at least 1 year. 29 C.F.R. Sec. 1627.3. EEOC
     regulations further require that each
     employer ``shall make such extension,
     recomputation or transcriptions of his
     records and shall submit such reports
     concerning actions taken and limitations and
     classifications of individuals set forth in
     records'' as the EEOC or its representative
     may request in writing. 29 C.F.R. Sec.
     1627.7. The CAA does not reference these
     provisions, and the Board, in issuing
     substantive regulations with respect to
     several other laws, found that recordkeeping
     and reporting requirements under those laws
     were not made applicable by the CAA.
    12. Agency authority to bring judicial          Sec. 7(b); 29 U.S.C.
     enforcement actions. The ADEA authorizes the    Sec. 626(a),
     EEOC to bring an action in district court       referencing Sec.
     seeking damages, including liquidated           Sec. 16(c), 17 of
     damages, and injunctive relief. The CAA         FLSA, 29 U.S.C.
     neither references these provisions nor sets    Sec. Sec. 216(c),
     forth similar provisions authorizing an         217.
     agency to bring enforcement proceedings.
    13. Agency responsibility to ``seek to          Sec. 7(b), (d); 29
     eliminate'' the violation. The ADEA requires    U.S.C. Sec. 626(b),
     that, upon receiving a charge, the EEOC must    (d).
     ``seek to eliminate any alleged unlawful
     practice'' by informal conference,
     conciliation, and persuasion, and, before
     instituting a judicial action, the agency
     must use such conciliation to ``attempt to
     eliminate the discriminatory practice or
     practices and to effect voluntary
     compliance.'' The CAA does not reference
     these provisions; it requires the mediation
     of allegations of discrimination and requires
     approval of settlements by the Executive
     Director, but does not require any person
     involved in the mediation or in approving the
     settlement to determine ``reasonable cause''
     or to ``endeavor to eliminate'' the alleged
     discrimination.
Administrative and Judicial Procedures and
 Remedies:
    14. Enforceability of subpoenas for             Sec. 7(b)-(c); 29
     information or documents within the             U.S.C. Sec. 626(c),
     jurisdiction of the House or Senate. The ADEA   referencing Sec.
     authorizes civil actions in which courts        16(b)-(c) of FLSA,
     exercise their ordinary subpoena authority.     29 U.S.C. Sec.
     The CAA also authorizes civil actions, as       216(b)-(c).
     well as administrative adjudications, but
     such authorization is subject to Sec. 413 of
     the CAA, by which the House and Senate
     decline to waive certain powers relating to
     records and information, as discussed in
     connection with Title VII at page 3, row 13,
     above.
    15. Suing individuals as agent; possibility of  Sec. 11(b) 29 U.S.C.
     individual liability. Because the definition    Sec. 630(b).
     of ``employer'' in the ADEA includes any
     agent, a plaintiff may choose to sue the
     employer by naming an individual in the
     capacity of agent. Furthermore, as noted with
     respect to Title VII at page 3, row 12,
     above, while many recent cases hold that
     individuals may not be held individually
     liable in discrimination cases, some courts
     hold to the contrary and the issue remains
     unresolved. Under the CAA, however,
     individuals may be neither sued nor held
     individually liable, because only an
     employing office may be named as respondent
     or defendant under Sec. Sec. 401-408 and all
     awards and settlements must generally be paid
     out of an account of the Office of Compliance
     under Sec. 415(a).
Defense:
    16. Defense for good faith reliance on agency   Sec. 7(e); 29 U.S.C.
     interpretations. Sec. 7(e) of the ADEA          Sec. 626(e),
     provides that Sec. 10 of the Portal-to-Portal   referencing Sec. 10
     Act (``PPA'') shall apply to actions under      of PPA, 29 U.S.C.
     the ADEA, and Sec. 10 of the PPA establishes    Sec. 259.
     a defense for an employer who relies in good
     faith on an interpretation by the EEOC.
     However, the CAA does not reference Sec. 7(e)
     of the ADEA, and Sec. 15 of the ADEA, which
     is referenced by Sec. 201(a)(2) of the CAA,
     contains a subsection (f) that specifically
     precludes the application of provisions
     outside of Sec. 15. The ADEA thus differs
     from Title VII, as discussed at page 4, row
     17, above, because the Title VII provisions
     referenced by the CAA contain no provision
     like ADEA Sec. 15(f) precluding the
     application of other statutory provisions.
Damages:
    17. Liquidated damages for retaliation. Sec.    Secs. 4(d), 7(b); 29
     4(d) of the ADEA forbids discrimination         U.S.C. Sec. Sec.
     against employees for exercising ADEA rights,   623(d), 626(b),
     and Sec. 7(b) of the ADEA provides that         including reference
     liquidated damages, in an amount equal to the   to Sec. 16(b) of
     amount otherwise owing because of a             FLSA, 29 U.S.C.
     violation, shall be payable in cases of         Sec. 216(b).
     willful violations. Under the CAA, Sec.
     201(a)(2)(B) incorporates ``such liquidated
     damages as would be appropriate if awarded
     under Sec. 7(b) of [the ADEA],'' but only for
     ``a violation of subsection (a)(2).'' Sec.
     201(a)(2) does not reference Sec. 4(d) of the
     ADEA, but rather, Sec. 201(a)(2) prohibits
     discrimination within the meaning of Sec. 15
     of the ADEA, 29 U.S.C. Sec. 633a, and Sec. 15
     does not prohibit retaliation either
     expressly or by implication. See Tomasello v.
     Rubin, 920 F. Supp. 4 (D.D.C. 1996); Koslow
     v. Hundt, 919 F. Supp. 18 (D.D.C. 1995).
     Retaliation is prohibited by Sec. 207(a) of
     the CAA, but the remedy under Sec. 207(b) is
     ``such legal or equitable remedy as may be
     appropriate,'' with no express authority to
     award liquidated damages.
 
C. OTHER AGENCY AUTHORITIES
18. Authority to issue written interpretations and  Sec. 7(e); 29 U.S.C.
 opinions. Sec. 7(e) of the ADEA, referencing Sec.   Sec. 626(e),
 10 of the PPA, establishes a defense for good-      referencing Sec. 10
 faith reliance on ``any written administrative      of PPA, 29 U.S.C.
 regulation, order, ruling, approval, or             Sec. 259.
 interpretation'' of the EEOC, and the EEOC has
 established a process by which a request for an
 opinion letter may be submitted to the
 Commission. See 29 C.F.R. Sec. Sec. 1626.17-
 1626.18. However, as noted at page 9, row 16,
 above, the CAA does not reference Sec. 7(e).
 Furthermore, as discussed in connection with
 Title VII at page 5, row 20, above, the Board has
 decided that the PPA defense was incorporated
 into Sec. 203 of the CAA, but that the Board
 would not provide authoritative interpretations
 and opinions outside of adjudicating individual
 cases.
19. Notice-posting requirements. The ADEA requires  Sec. 8; 29 U.S.C.
 employers, employment agencies, and unions to       Sec. 627.
 post notices prepared or approved by the EEOC.
 The CAA does not reference these provisions, and
 the Board, in issuing substantive regulations as
 to several other laws, found that notice-posting
 requirements under those laws were not
 incorporated by the CAA.
20. Substantive rulemaking authority. Under Sec. 9  Sec. 9; 29 U.S.C.
 of the ADEA, the EEOC promulgates substantive as    Sec. 628.
 well as procedural regulations applicable to the
 private sector. Sec. 9 is not referenced by the
 CAA, and Sec. 201 of the CAA, unlike most other
 CAA sections, does not require that the Board
 adopt implementing regulations. Sec. 304 of the
 CAA, which establishes the process by which the
 Board adopts substantive regulations, specifies
 that such regulations ``shall include regulations
 the Board is required to issue under title II [of
 the CAA],'' but does not state explicitly whether
 the Board has authority to promulgate
 regulations, at its discretion, that the Board is
 not required to issue. Furthermore, Sec.
 201(a)(2) of the CAA references Sec. 15 of the
 ADEA, which, in subsection (b), requires the EEOC
 to issue regulations, orders, and instructions
 applicable to the executive branch and requires
 each federal agency covered by Sec. 15 to comply
 with them. The CAA does not state expressly
 whether the reference to Sec. 15 makes subsection
 (b) of that section applicable, and,
 specifically, whether employing offices must
 comply with regulations, orders, and instructions
 promulgated by the EEOC under Sec. 15(b), or
 whether the Board can exercise the authority of
 the EEOC under Sec. 15(b) to issue regulations,
 orders, and instructions binding on employing
 offices.
21. Authority to grant ``reasonable exemptions''    Sec. 9; 29 U.S.C.
 in the ``public interest.'' With respect to the     Sec. 628.
 private sector, Sec. 9 of the ADEA authorizes the
 EEOC to establish ``reasonable exemptions'' from
 the ADEA ``as it may find necessary and proper in
 the public interest.'' Sec. 9 is not referenced
 by the CAA, and Sec. 15 of the ADEA, which is
 referenced by Sec. 201(a)(2) of the CAA, contains
 a subsection (f) that specifically precludes the
 application of any provision outside of Sec. 15.
 However, Sec. 15(b) of the ADEA authorizes the
 EEOC to establish ``[r]easonable exemptions'' for
 the executive branch upon determining that age is
 a BFOQ. The CAA does not state expressly whether
 the reference to Sec. 15 makes subsection (b) of
 that section applicable, and, specifically,
 whether any BFOQs granted by the EEOC under Sec.
 15(b) would apply to employing offices, or
 whether the Board can exercise the authority of
 the EEOC under Sec. 15(b) to issue BFOQs
 applicable to employing offices.
------------------------------------------------------------------------


            AMERICANS WITH DISABILITIES ACT OF 1990 (``ADA'')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                           TITLE I--EMPLOYMENT
 
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
1. Employment discrimination against an individual  Sec. 102(a); 42
 employed by another employer. Sec.  102(a) of the   U.S.C. Sec.
 ADA forbids employment discrimination by covered    12112(a).
 employers against ``a qualified individual with a
 disability.'' As discussed at page 1, row 1,
 above, courts have held that a Title VII
 provision forbidding discrimination against ``any
 individual'' extends, under certain
 circumstances, beyond the immediate employer-
 employee relationship, including where a
 defendant who does not employ an individual
 controls that individual's access to employment
 with another employer and denies access based on
 unlawful criteria. Under the CAA, an employing
 office may only be charged with discrimination by
 a ``covered employee,'' defined as an employee of
 the nine legislative-branch employers listed in
 Sec.  101(3).

[[Page 1571]]

 
2. Coverage of unions. Sec.  102 of the ADA         Secs. 102, 107(a);
 forbids discrimination by unions in the private     42 U.S.C. Sec. Sec.
 sector, and these provisions may be enforced         12112, 12117(a).
 against private-sector unions under Sec.  107(a)
 of the ADA. The CAA does not make these
 provisions applicable to unions discriminating
 against legislative branch employees, because
 Sec.  201 of the CAA only forbids discrimination
 in ``personnel actions'' and Sec. Sec.  401-408
 allow complaints only against employing offices.
 (Unlawful discrimination by a union may be an
 unfair labor practice under Sec.  220 of the CAA,
 but the procedures and remedies under that
 section are very different from those under the
 ADA and under the CAA for violations of ADA
 rights and protections.) As noted at page 1, row
 3, above, a similar situation exists in the
 executive branch, where Sec.  717 of Title VII
 does not cover discrimination by unions against
 executive branch employees, but courts and the
 EEOC are divided as to whether the private-sector
 provisions of Title VII and 42 U.S.C. Sec.  1981
 apply by their own terms to such discrimination.
 Similarly differing views might be expressed with
 respect to whether the ADA applies by its own
 terms to forbid discrimination by unions against
 legislative-branch employees.
3. Consideration of political party, domicile, or   Secs. 102-103; 42
 political compatibility. Under the CAA, Sec.  502   U.S.C. Sec.  12112-
 provides that consideration of political party,     12113.
 domicile, or political compatibility by Members,
 committees, or leadership offices shall not be a
 violation of Sec.  201, which is the section that
 makes applicable the rights and protections of
 title I of the ADA. Under the ADA, there is no
 specific immunity for consideration of political
 party, domicile, or political compatibility.
 
B. ENFORCEMENT
 
Agency Enforcement Authorities:
    4. Agency responsibility to investigate         Sec. 107(a); 42
     charges filed by an employee or Commission      U.S.C. Sec.
     Member. The ADA requires the EEOC to            12117(a),
     investigate charges brought by an employee or   referencing Sec.
     by a Member of the Commission. The CAA          706(b) of Title
     neither references these provisions nor sets    VII, 42 U.S.C. Sec.
     forth similar provisions authorizing agency      2000e-5(b).
     investigation.
    5. Agency responsibility to determine           . . . referencing
     ``reasonable cause'' and to ``endeavor to       Sec.  706(b) of
     eliminate'' the violation by informal           Title VII, 42
     conciliation. The ADA requires that, upon the   U.S.C. Sec.  2000e-
     filing of a charge, the EEOC must determine     5(b).
     whether ``there is reasonable cause to
     believe that the charge is true'' and
     ``endeavor to eliminate any such alleged
     unlawful employment practice'' by informal
     conference, conciliation, and persuasion. The
     CAA does not reference these provisions; it
     requires the mediation of allegations of
     discrimination and requires approval of
     settlements by the Executive Director, but
     does not require any person involved in the
     mediation or in approving the settlement to
     determine ``reasonable cause'' or to
     ``endeavor to eliminate'' the alleged
     discrimination.
    6. Agency authority to bring judicial           . . . referencing
     enforcement actions. The ADA authorizes the     Sec.  706(f)(1) of
     EEOC to bring a civil action. The CAA neither   Title VII, 42
     references these provisions nor sets forth      U.S.C. Sec.  2000e-
     similar provisions authorizing an agency to     5(f)(1).
     bring enforcement proceedings.
    7. Agency authority to intervene in private     . . . referencing
     civil action of general public importance.      Sec.  706(f)(1) of
     Under the ADA, the EEOC may intervene in a      Title VII, 42
     private action of general public importance.    U.S.C. Sec.  2000e-
     The CAA neither references these provisions     5(f)(1).
     nor sets forth similar provisions authorizing
     an agency to intervene in private actions.
    8. Agency authority to apply to court for       . . . referencing
     enforcement of judicial orders. The ADA         Sec.  706(i) of
     authorizes the EEOC to commence judicial        Title VII, 42
     proceedings to compel compliance with           U.S.C. Sec.  2000e-
     judicial orders. The CAA does not reference     5(i).
     these provisions. Sec.  407(a)(2) of the CAA
     enables the Office of Compliance to petition
     the Court of Appeals to enforce final orders
     of a hearing officer or the Board, but the
     CAA sets forth no provision enabling an
     agency to seek the enforcement of judicial
     orders.
    9. Grant of subpoena power and other general    . . . referencing
     powers for investigations and hearings. The     Sec. Sec.  709(a),
     ADA grants the EEOC access to evidence,         710 of Title VII,
     including subpoena powers, in support of its    42 U.S.C. Sec. Sec.
     investigations and hearings. The CAA neither     2000e-8(a), 2000e-
     references these provisions nor sets forth      9.
     similar provisions granting an agency
     investigatory powers. (Sec.  405(f) of the
     CAA grants subpoena powers to hearing
     officers, and Sec.  408 authorizes civil
     actions in which courts may issue subpoenas,
     but these CAA provisions do not grant
     subpoena powers for use in agency
     investigation.)
    10. Recordkeeping and reporting requirements.   . . . referencing
     The ADA incorporates Title VII provisions       Sec.  709(c) of
     requiring private-sector employers to make      Title VII, 42
     and preserve such records and make such         U.S.C. Sec.  2000e-
     reports therefrom as the EEOC shall             8(c).
     prescribed by regulation or order, after
     public hearing, as reasonable, necessary, or
     appropriate for enforcement. EEOC regulations
     require that all personnel or employment
     records generally be preserved for 1 year and
     reserve the agency's right to impose special
     reporting requirements on individual
     employers or groups of employers. 29 C.F.R.
     Sec.  1602.11. The CAA does not reference
     these provisions, and the Board, in issuing
     substantive regulations with respect to
     several other laws, found that recordkeeping
     and reporting requirements under those laws
     were not incorporated by the CAA.
Administrative and Judicial Procedures and
 Remedies:
    11. Suing individuals as agent; possibility of  Sec. 101(5)(A); 42
     individual liability. Because the definition    U.S.C. Sec.
     of ``employer'' under the ADA includes any      12111(5)(A).
     agent, a plaintiff may choose to sue the
     employer by naming an individual in the
     capacity of agent. Furthermore, as noted with
     respect to Title VII at page 3, row 12,
     above, while many recent cases hold that
     individuals may not be held individually
     liable in discrimination cases, some courts
     hold to the contrary and the issue remains
     unresolved. Under the CAA, individuals may be
     neither sued nor held individually liable,
     because only an employing office may be named
     as respondent or defendant under Sec. Sec.
     401-408 and all awards and settlements must
     generally be paid out of an account of the
     Office of Compliance under Sec.  415(a).
    12. Enforceability of subpoenas for             Sec. 107(a); 42
     information or documents within the             U.S.C. Sec.
     jurisdiction of the House or Senate. The ADA    12117(a),
     authorizes civil actions in which courts        referencing Sec.
     exercise their ordinary subpoena authority.     706(f)(1) of Title
     The CAA also authorizes civil actions, as       VII, 42 U.S.C. Sec.
     well as administrative adjudications, but        2000e-5(f)(1).
     such authorization is subject to Sec.  413 of
     the CAA, by which the House and Senate
     decline to waive certain powers relating to
     records and information, as discussed in
     connection with Title VII at page 3, row 13,
     above.
    13. Appointment of counsel and waiver of fees.  . . . referencing
     The ADA authorizes the court to appoint an      Sec.  706(f)(1) of
     attorney for the complainant in a private       Title VII, 42
     action and to waive costs. The CAA does not     U.S.C. Sec.  2000e-
     reference these provisions. In judicial         5(f)(1).
     proceedings under the CAA, the courts may
     exercise their general powers to authorize
     proceedings in forma pauperis and waive fees
     and costs and appoint counsel if a party is
     unable to pay. See 28 U.S.C. Sec.  1915. In
     administrative proceedings under the CAA,
     there are no fees and costs to waive, but
     there is also no power to appoint counsel.
    14. Agency authority to apply for TRO or        . . . referencing
     preliminary relief. Sec.  107(a) of the ADA,    Sec. 706(f)(2) of
     which references Sec.  706(f)(1) of Title       Title VII, 42
     VII, authorizes the EEOC to bring an action     U.S.C. Sec.  2000e-
     for a TRO or preliminary relief pending         5(f)(2).
     resolution of a charge. The CAA neither
     references Sec.  107(a) of the ADA nor sets
     forth similar provisions authorizing TROs or
     preliminary relief, and the CAA does not
     allow a covered employee to commence an
     administrative complaint or civil action
     until after having completed periods of
     counseling and mediation and an additional
     period of at least 30 days.
Punitive Damages:
    15. Punitive damages. Punitive damages are      42 U.S.C. Sec.
     available in cases of malice or reckless        1981a(b)(1).
     indifference brought under title I of the
     ADA. The CAA does not reference this
     provision, and Sec.  225(c) of the CAA
     expressly precludes the awarding of punitive
     damages.
 
OTHER AGENCY AUTHORITIES
 
16. Notice-posting requirements. The ADA requires   Sec. 105; 42 U.S.C.
 employers, employment agencies, and unions and      Sec.  12115.
 joint labor-management committees to post notices
 prepared or approved by the EEOC. The CAA does
 not reference these provisions, and the Board, in
 issuing substantive regulations with respect to
 several other laws, found that notice-posting
 requirements under those laws were not
 incorporated by the CAA.
17. Substantive rulemaking authority. Under Sec.    Sec. 106; 42 U.S.C.
 106 of the ADA, the EEOC promulgates both           Sec.  12116.
 procedural and substantive regulations. Sec.  106
 is not referenced by the CAA, and Sec.  201,
 unlike most other sections of title II of the
 CAA, contains no requirement that the Board adopt
 implementing regulations. Sec.  304 of the CAA,
 which establishes the process by which the Board
 adopts substantive regulations, specifies that
 such regulations ``shall include regulations the
 Board is required to issue under title II,'' but
 does not state explicitly whether other
 regulations, which the Board is not required to
 issue, may be issued at the Board's discretion.
 
                        TITLE II--PUBLIC SERVICES
 
ENFORCEMENT
 
Agency Enforcement Authorities:
    18. Agencies must investigate any alleged       Sec. 203; 42 U.S.C.
     violation, even if not charged by a qualified   Sec.  12133,
     person with a disability. Title II of the ADA   referencing Sec.
     affords the remedies, procedures, and rights    505 of
     set forth in Sec.  505 of the Rehabilitation    Rehabilitation Act
     Act of 1973 to ``any person alleging            of 1973, 29 U.S.C.
     discrimination.'' The regulations of the        Sec.  794a.
     Attorney General (``AG'') implementing title
     II require that, if any ``individual who
     believes that he or she or a specific class
     of individuals'' has been subject to
     discrimination files a complaint, then the
     appropriate federal agency must investigate
     the complaint. 28 C.F.R. Sec. Sec.
     35.170(a), 35.172(a). Under the CAA, Sec.
     210(d)(1), (f) provides express authority for
     the General Counsel to investigate only when
     ``[a] qualified person with a disability, . .
     . who alleges a violation[,] . . . file[s] a
     charge'' and in ``periodic inspections'' that
     are ``[o]n a regular basis, and at least once
     each Congress.''
    19. Agencies must issue ``Letter of Findings''  Sec. 203; 42 U.S.C.
     and endeavor to ``secure compliance by          Sec.  12133,
     voluntary means.'' Title II of the ADA          referencing Sec.
     affords the remedies, procedures, and rights    602 of title VI of
     of Sec.  505 of the Rehabilitation Act, and     the CRA, 42 U.S.C.
     Sec.  505 incorporates the remedies,            Sec.  2000d-1.
     procedures and rights of titles VI and VII of
     the Civil Rights Act of 1964 (``CRA''). Sec.
     602 in title VI of the CRA provides that
     enforcement action may be taken only if the
     federal agency concerned ``has determined
     that compliance cannot be secured by
     voluntary means.'' The AG's regulations
     implementing title II of the ADA require that
     the Federal agency investigating a complaint
     must issue a Letter of Findings, 28 C.F.R.
     Sec.  35.172, and, if noncompliance is found,
     the agency must initiate negotiations ``to
     secure voluntary compliance'' and any
     compliance agreement must specify the action
     that will be taken ``to come into
     compliance'' and must ``[p]rovide assurance
     that discrimination will not recur,'' 28
     C.F.R. Sec.  35.173. The CAA does not
     reference these provisions. Under the CAA,
     Sec.  210(d)(2) authorizes the General
     Counsel to request mediation between the
     charging individual and the responsible
     entity, and the CAA requires approval of any
     settlement by the Executive Director.
     However, the General Counsel is specifically
     forbidden to participate in the mediation,
     and the CAA does not require any person
     involved in the mediation or in approving the
     settlement to make findings as to compliance
     or noncompliance or to endeavor ``to secure
     voluntary compliance.''
    20. Attorney General's authority to bring       Sec. 203; 42 U.S.C.
     enforcement proceeding without a charge by a    Sec.  12133.
     qualified person with a disability. Under
     title II of the ADA and under regulations of
     the AG, if a federal agency receives a
     complaint from any individual who believes
     there has been discrimination and is unable
     to secure voluntary compliance, the agency
     may refer the matter to the AG for
     enforcement. 28 C.F.R. Sec.  35.174; see U.S.
     v. Denver, 927 F. Supp. 1396, 1399-1400 (D.
     Col. 1996). Under the CAA, Sec.  210(d)(3)
     authorizes the General Counsel to file an
     administrative complaint only after ``[a]
     qualified person with a disability, . . . who
     alleges a violation[,] . . . file[s] a
     charge.''

[[Page 1572]]

 
    21. Attorney General's authority to bring       Sec. 203; 42 U.S.C.
     enforcement action in federal district court.   Sec.  12133.
     The AG enforces against a violation of ADA
     title II by filing an action in federal
     district court. Under the CAA, Sec.
     210(d)(3) authorizes the General Counsel to
     enforce by filing an administrative
     complaint, but not by commencing an action in
     court.
Judicial Procedures and Remedies:
    22. Private right of action. Under title II of  Sec. 203; 42 U.S.C.
     the ADA, both employees and non-employees of    Sec.  12133.
     a public entity may sue a public entity for
     discrimination on the basis of disability.
     Under the CAA, non-covered-employees have no
     right to sue or bring administrative
     proceedings under Sec.  210 or any other
     section of the CAA. (As discussed at page 16,
     row 23, below, covered employees may sue or
     bring administrative complaints under Sec.
     201 and Sec. Sec.  401-408 of the CAA.)
    23. Private right to sue immediately, without   Sec. 203; 42 U.S.C.
     having exhausted administrative remedies.       Sec.  12133.
     Both employees and non-employees of a non-
     federal public entity may sue under title II
     of the ADA immediately, regardless of whether
     administrative remedies have been exhausted.1
     Under the CAA, covered employees may not file
     an administrative complaint or commence a
     civil action until after having completed
     periods of counseling and mediation and an
     additional period of at least 30 days. (As
     discussed at page 15, row 22, above, non-
     covered-employees have no private right of
     action.)
Damages:
    24. Monetary damages. Sec.  203 of the ADA      Sec. 203; 42 U.S.C.
     incorporates the remedies of titles VI and      Sec.  12133,
     VII of the CRA, as noted in page 15, row 19,    referencing title
     above. Title VII does not provide for damages   VI and Sec. Sec.
     other than back pay under Sec.  706(g)(1) in    706(f)-(k), 716 of
     connection with hiring or reinstatement, but,   the CRA, 42 U.S.C.
     under title VI, courts have inferred a          Sec. Sec.  2000d et
     private right to recover damages for an         seq., 2000e-5(f)-
     intentional violation. Franklin v. Gwinnett     (k), 2000e-16.
     County Public Schools, 503 U.S. 60, 70, 112
     S. Ct. 1028, 1035 (1992). Under the CAA, Sec.
      210(c) incorporates the remedies under Sec.
     203 of the ADA. However, a court has held
     that the Federal Government is immune, under
     sovereign immunity principles, against the
     implied right to recover damages under title
     VI as incorporated by Sec.  505 of the
     Rehabilitation Act. Dorsey v. U.S. Dep't of
     Labor, 41 F.3d 1551 (D.C. Cir. 1994).
 
    TITLE III--PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE
                                ENTITIES
ENFORCEMENT
 
Agency Enforcement Authorities:
    25. Attorney General may investigate whenever   Sec.
     there is reason to believe there may be a       308(b)(1)(A)(i); 42
     violation, even if not charged by a qualified   U.S.C. Sec.
     person with a disability. Title III of the      12188(b)(1)(A)(i).
     ADA requires the AG to investigate alleged
     violations and to undertake periodic
     compliance reviews. The AG's regulations
     implementing title III specify that ``[a]ny
     individual who believes that he or she or a
     specific class of persons'' has been subject
     to discrimination may request an
     investigation, and that, whenever the AG
     ``has reason to believe'' there may be a
     violation, the AG may initiate a compliance
     review. 28 C.F.R. Sec.  36.502. The CAA does
     not reference these provisions, and Sec.
     210(d)(1), (f) of the CAA provides express
     authority for the General Counsel to
     investigate only when ``[a] qualified person
     with a disability, . . . who alleges a
     violation[,] . . . file[s] a charge'' and in
     ``periodic inspections'' that are ``[o]n a
     regular basis, and at least once each
     Congress.''.
    26. Attorney General's authority to bring       Sec. 308(b)(1)(B);
     enforcement action without a charge by a        42 U.S.C. Sec.
     qualified person with a disability. Under       12188(b)(1)(B).
     title III of the ADA, if the AG has
     reasonable cause to believe that there is
     discrimination that constitutes a pattern or
     practice of discrimination or that raises an
     issue of general public importance, the AG
     may commence a civil action. These provisions
     are not referenced by the CAA. Sec.
     210(d)(3) of the CAA authorizes the General
     Counsel to file an administrative complaint
     only in response to a charge filed by a
     qualified person with a disability who
     alleges a violation.
    27. Attorney General's authority to bring       Sec. 308(b)(1)(B);
     enforcement action in federal district court.   42 U.S.C. Sec.
     The AG brings enforcement actions, as noted     12188(b)(1)(B).
     at page 17, row 26, above, by filing an
     action in federal district court. These
     provisions are not referenced by the CAA.
     Sec.  210(d)(3) of the CAA authorizes the
     General Counsel may bring an enforcement
     action by filing an administrative complaint,
     but not by commencing an action in court.
Judicial Procedures and Remedies:
    28. Private right of action. A private right    Sec. 308(a); 42
     of action is available for violations of        U.S.C. Sec.
     title III of the ADA. The CAA neither           12188(a).
     references these provisions nor sets forth
     similar provisions establishing a private
     right to commence either an administrative or
     judicial proceedings.
Damages and Penalties:
    29. Monetary damages. Sec.  308(b)(2)(B) of     Sec. 308(b)(2)(B);
     the ADA provides that, when the AG brings a     42 U.S.C. Sec.
     civil action, he or she may ask the court to    12188(b)(2)(B).
     award monetary damages to the person
     aggrieved. The CAA does not reference Sec.
     308(b)(2)(B), but, rather, Sec.  210(c) of
     the CAA references the remedies under Sec.
     Sec.  203 and 308(a) of the ADA. Sec.  203 of
     the ADA references the remedies of titles VI
     and VII of the CRA, as noted in row 19 above,
     and Sec.  308(a) of the ADA references the
     remedies of title II of the CRA, 42 U.S.C.
     Sec. Sec.  2000a-3(a). Neither title II nor
     title VII of the CRA provides for damages,
     other than back pay under Sec.  706(g)(1) of
     title VII in connection with hiring or
     reinstatement. Courts have inferred a private
     right to recover damages under title VI of
     the CRA, but, as discussed at page 16, row
     24, above, the Federal Government may be
     immune. Furthermore, the remedies of title VI
     of the CRA are referenced by Sec.  203 of
     title II of the ADA, not by Sec.  308(a) of
     title III of the ADA, and might therefore not
     be available for a violation of title III
     rights and protections as made applicable by
     Sec.  210 of the CAA.
    30. Civil penalties. In a civil action brought  Sec. 308(b)(2)(C);
     by the Attorney General under title III of      42 U.S.C. Sec.
     the ADA, the court may assess a civil           12188(b)(2)(C).
     penalty. The CAA does not reference this
     provision and Sec.  225(c) of the CAA
     specifically disallows the assessment of
     civil penalties.
 
                    TITLE V--MISCELLANEOUS PROVISIONS
 
SUBSTANTIVE RIGHTS AND PROTECTIONS
 
31. Retaliation against employees of other          Sec. 503; 42 U.S.C.
 employers. Sec.  503 of the ADA protects ``any      Sec.  12203.
 individual'' against retaliation for asserting,
 exercising, or enjoying rights under the ADA.
 Employers' obligations under this section are not
 expressly limited to their own employees, and, in
 the context of the retaliation provision in the
 OSHAct, the Labor Department has construed the
 term ``any employee'' to forbid employers to
 retaliate against employees of other employers,
 as discussed at page 32, row 1, below. Sec.  503
 is not referenced by the CAA, and Sec.  207 of
 the CAA, which sets forth provisions prohibiting
 retaliation, applies by its terms to covered
 employees only.
32. Retaliation against non-employees exercising    Sec. 503; 42 U.S.C.
 rights with respect to public entities or public    Sec.  12203.
 accommodations. Sec.  503 of the ADA protects any
 individual against retaliation for asserting,
 exercising, or enjoying rights under the ADA.
 Such individuals may include non-employees who
 exercise or enjoy rights with respect to public
 entities under title II of the ADA or public
 accommodations under title III of the ADA. Sec.
 503 is not referenced by the CAA, and Sec.  207
 of the CAA, which sets forth provisions
 establishing retaliation protection, applies by
 its terms to covered employees only.
------------------------------------------------------------------------
1 See Tyler v. Manhattan, 857 F. Supp. 800, 812 (D. Kan. 1994); Ethridge
  v. Alabama, 847 F. Supp. 903, 907 (M.D. Ala. 1993); Noland v.
  Wheatley, 835 F. Supp. 476, 482 (N.D. Ind. 1993); Petersen v.
  University of Wisconsin, 818 F. Supp. 1276, 1279 (W.D. Wis. 1993);
  Bledsoe v. Palm Beach County Soil and Water Conserv. Dist., 133 F.3d
  816, 824 (11th Cir. 1998) (dictum).


             FAMILY AND MEDICAL LEAVE ACT OF 1993 (``FMLA'')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
1. Duties owed by ``secondary'' employers to        Secs.
 employees hired and paid by temp agencies and       101(4)(A)(ii)(I),
 another ``primary'' employers. The FMLA defines     105(a)(1)-(2), (b);
 ``employer'' to include any person ``who acts,      29 U.S.C. Sec. Sec.
 directly or indirectly, in the interest of an        2611(4)(A)(ii)(I),
 employer'; makes it unlawful for any employer to    2615(a)(1)-(2),
 interfere with the exercise of FMLA rights; and     (b).
 forbids employers and other persons from
 retaliating against ``any individual.'' The Labor
 Secretary, citing this statutory authority,
 promulgated regulations on ``joint employment''
 that prohibit ``secondary employers'' from
 interfering with the exercise of FMLA rights by
 employees hired and paid by a ``primary''
 employer, e.g., by a temporary help or leasing
 agency. 29 C.F.R. Sec.  825.106(f); 60 Fed. Reg.
 2180, 2183 (Jan. 8, 1995). Under the CAA,
 individuals who are not employees of the nine
 legislative-branch employers in Sec.  101(3) are
 outside the definition of ``covered employee''
 and are not covered by family and medical leave
 protection under Sec.  202(a) or by retaliation
 protection under Sec.  207(a), regardless of
 whether an employing office would be considered
 the ``secondary employer'' within the meaning of
 the Labor Secretary's regulations. The Board, in
 promulgating its implementing regulations, stated
 specifically that employees of temporary and
 leasing agencies are not covered by the CAA. 142
 Cong. Rec. S196, S198 (daily ed. Jan. 22, 1996).
 
B. ENFORCEMENT
 
Agency Enforcement Authorities:
    2. Agency's general authority to investigate    Sec. 106(a),
     to ensure compliance, and responsibility to     107(b)(1); 29
     investigate complaints of violations. Sec.      U.S.C. Sec. Sec.
     106(a) of the FMLA authorizes the Labor         2616(a),
     Secretary generally to make investigations to   2617(b)(1).
     ensure compliance, and Sec.  107(b)(1)
     specifically requires the Labor Secretary to
     receive, investigate, and attempt to resolve
     complaints of violations. The CAA neither
     references these provisions nor sets forth
     similar provisions authorizing an agency to
     conduct investigations.
    3. Grant of subpoena and other investigatory    Sec. 106(a), (d); 29
     powers. The FMLA grants the Labor Secretary     U.S.C. Sec.
     subpoena and other investigatory powers for     2616(a), (d).
     any investigations. The CAA neither
     references these provisions nor sets forth
     similar provisions granting an agency
     investigatory powers. (Sec.  405(f) of the
     CAA grants subpoena powers to hearing
     officers, and Sec.  408 authorizes civil
     actions in which courts may issue subpoenas,
     but these CAA provisions do not grant
     subpoena powers for use in agency
     investigation.).
    4. Recordkeeping and reporting requirements.    Sec. 106(b)-(c); 29
     The FMLA requires private-sector employers to   U.S.C. Sec.
     make and preserve records pertaining to         2616(b)-(c),
     compliance in accordance with Sec.  11(c) of    referencing Sec.
     the FLSA and in accordance with regulations     11(c) of the FLSA,
     issued by the Labor Secretary. Sec.  11(c) of   29 U.S.C. Sec.
     the FLSA requires every employer to make and    211(c).
     preserve such records and to make such
     reports therefrom as the Wage and Hour
     administrator shall prescribe by regulation
     or order. The Secretary's FMLA regulations
     specify the records regarding payroll,
     benefits, and FMLA leave and disputes that
     employers must maintain and preserve for 3
     years, and indicate that employers must
     submit records specifically requested by a
     Departmental official and must prepare
     extensions or transcriptions of information
     in the records upon request. 29 C.F.R. Sec.
     825.500(a)-(b). The CAA does not reference
     these statutory provisions, and the Board, in
     adopting implementing regulations under Sec.
     202 of the CAA, found that the CAA explicitly
     did not make these requirements applicable.

[[Page 1573]]

 
    5. Agency authority to bring judicial           Sec. 107(b)(2), (d);
     enforcement actions. The FMLA authorizes the    29 U.S.C. Sec.
     Labor Secretary to bring a civil action to      2617(b)(2), (d).
     recover damages, and grants the district
     courts jurisdiction, upon application of the
     Labor Secretary, to restrain violations and
     to award other equitable relief. The CAA
     neither references these provisions nor sets
     forth similar provisions authorizing an
     agency to bring enforcement proceedings.
Judicial Procedures and Remedies:
    6. Individual liability. Because the            Secs.
     definition of ``employer'' under the FMLA       101(4)(A)(ii)(I),
     includes any person who ``acts, directly or     107; 29 U.S.C. Sec.
     indirectly, in the interest of an employer,''   Sec.  2611(4)(A)(ii
     the weight of authority is that individuals     )(I), 2617.
     may be held individually liable in an action
     under Sec.  107 of the FMLA.1 Under the CAA,
     individuals may not be held individually
     liable, because only an employing office may
     be named as respondent or defendant under
     Sec. Sec.  401-408 and all awards and
     settlements must generally be paid out of an
     account of the Office of Compliance under
     Sec.  415(a).
    7. Enforceability of subpoenas for information  Sec. 107(a)(2); 29
     or documents within the jurisdiction of the     U.S.C. Sec.
     House or Senate. The FMLA authorizes civil      2617(a)(2).
     actions in which courts exercise their
     ordinary subpoena authority. The CAA also
     authorizes civil actions, as well as
     administrative adjudications, but such
     authorization is subject to Sec.  413 of the
     CAA, by which the House and Senate decline to
     waive certain powers relating to records and
     information, as discussed in connection with
     Title VII at page 3, row 13, above.
    8. Private right to sue immediately, without    Sec. 107(a); 29
     having exhausted administrative remedies. An    U.S.C. Sec.
     employee who alleges an FMLA violation may      2617(a).
     choose to sue immediately, without exhausting
     any administrative remedies. The CAA allows a
     covered employee to file an administrative
     complaint or commence a civil action only
     after having completed periods of counseling
     and mediation and an additional period of at
     least 30 days.
    9. Two- or 3-year statute of limitations. A     Sec. 107(c); 29
     civil action may be brought under the FMLA      U.S.C. Sec.
     within two years after the violation            2617(c).
     ordinarily, or, in the case of a willful
     violation, within three years. Proceedings
     under the CAA must be commenced within 180
     days after the alleged violation.
C. OTHER AGENCY AUTHORITIES
    10. Notice-posting requirements. The FMLA       Sec. 109; 29 U.S.C.
     requires employers to post notices prepared     Sec.  2619.
     or approved by the Labor Secretary, and
     establishes civil penalties for a violation.
     The CAA does not reference these provisions,
     and, in adopting implementing regulations,
     the Board found that the CAA explicitly did
     not incorporate these requirements.
------------------------------------------------------------------------
\1\ See Beyer v. Elkay Manufacturing Co., 1997 WL 587487 (N.D. Ill.
  Sept. 19, 1997) (No. 97-C-50067) (holding that the term ``employer''
  in the FMLA should be construed the same as ``employer'' in the FLSA,
  which allows individual liability); Knussman v. Maryland, 935 F.Supp.
  659, 664 (D. Md. 1996); Johnson v. A.P. Products, Ltd., 934 F.Supp.
  625 (S.D.N.Y. 1996); Freeman v. Foley, 911 F.Supp. 326, 330-32 (N.D.
  Ill. 1995); 29 C.F.R. Sec.  825.104(d) (Labor Department regulations).
  Contra Frizzell v. Southwest Motor Freight, Inc., 906 F.Supp. 441, 449
  (E.D. Tenn. 1995) (holding that the term ``employer'' in FMLA should
  be construed the same as ``employer'' in Title VII, which does not
  allow individual liability).


               FAIR LABOR STANDARDS ACT OF 1938 (``FLSA'')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
Prohibition against compensatory time off. Under    Sec. 7(a); 29 U.S.C.
 the FLSA, employers generally may neither require   Sec.  207(a).
 nor allow employees to receive compensatory time
 off in lieu of overtime pay. Sec.  203 of the CAA
 makes this prohibition generally applicable, but
 provisions of the CAA and other laws establish
 exceptions:
    1. Coverage of Capitol Police officers. Sec.
     203(c)(4) of the CAA, as amended, allows
     Capitol Police officers to elect time off in
     lieu of overtime pay.
    2. Coverage of employees whose work schedules
     directly depend on the House and Senate
     schedules. Sec.  203(c)(3) of the CAA
     requires the Board to issue regulations
     concerning overtime compensation for covered
     employees whose work schedule depends
     directly on the schedule of the House and
     Senate, and Sec.  203(a)(3) provides that,
     under those regulations, employees may
     receive compensatory time off in lieu of
     overtime pay.
    3. Coverage of salaried employees of the
     Architect of the Capitol. 5 U.S.C. Sec.
     5543(b) provides that the Architect of the
     Capitol may grant salaried employees
     compensatory time off for overtime work. The
     CAA does not state expressly whether it
     repeals this authority.
Interns are not covered. Sec.  203(a)(2) of the
 CAA excludes ``interns,'' as defined in
 regulations issued by the Board, from the
 coverage of all rights and protections of the
 FLSA:
    4. Minimum wage. Interns are excluded from      Sec. 6(a); 29 U.S.C.
     coverage under the entitlement to the minimum   Sec.  206(a).
     wage.
    5. Entitlement to overtime pay. Interns are     Sec. 7(a); 29 U.S.C.
     excluded from coverage under the entitlement    Sec.  207(a).
     receive overtime pay.
    6. Equal Pay Act provisions. Interns are        Sec. 6(d); 29 U.S.C.
     excluded from coverage under Equal Pay          Sec.  206(d).
     provisions, prohibiting sex discrimination in
     the payment of wages.
    7. Child labor protections. Interns are         Sec. 12(c); 29
     excluded from coverage under child labor        U.S.C. Sec.
     protections.                                    212(c).
    8. Coverage of unions under Equal Pay           Secs. 6(d)(2),
     provisions. The Equal Pay provisions at Sec.    16(b); 29 U.S.C.
     6(d)(2) of the FLSA forbid unions in the        Sec. Sec.  206(d),
     private-sector to cause or attempt to cause     216(b).
     an employer to discriminate on the basis of
     sex in the payment of wages, and these
     provisions may be enforced against private-
     sector unions under Sec.  16(b) of the FLSA.
     Under the CAA, Sec.  203(a)(1) makes the
     rights and protections of Sec.  6(d) of the
     FLSA applicable to covered employees, but no
     mechanism is expressly provided for enforcing
     these rights and protections against unions,
     because Sec. Sec.  401-408 of the CAA allow
     complaints only against employing offices.
     (Unlawful discrimination by a union may be an
     unfair labor practice under Sec.  220 of the
     CAA, but the procedures and remedies under
     that section are very different from those
     under the FLSA and under the CAA for
     violations of Equal Pay rights and
     protections.) As noted at page 1, row 3,
     above, a similar situation exists in the
     executive branch, where Sec.  717 of Title
     VII does not cover discrimination by unions
     against executive branch employees, but
     courts and the EEOC are divided as to whether
     the private-sector provisions of Title VII
     and 42 U.S.C. Sec.  1981 apply by their own
     terms to such discrimination. Similarly,
     differing views might be expressed with
     respect to whether Sec. Sec.  6(d)(2) and
     16(b) of the FLSA apply by their own terms to
     prohibit discrimination by unions against
     legislative-branch employees.
    9. Prohibition of retaliation by ``persons,''   Sec. 15(a)(3); 29
     including unions, not acting as employers.      U.S.C. Sec.
     Sec.  15(a)(3) of the FLSA forbids              215(a)(3).
     retaliation by any ``person'' against an
     employee for exercising rights under the
     FLSA, and Sec.  3(a) defines ``person''
     broadly to include any ``individual'' and any
     ``organized group of persons.'' This
     definition is broad enough to include a labor
     union, its officers, and members. See Bowe v.
     Judson C. Burns, Inc., 137 F.2d 37 (3d Cir.
     1943). The CAA does not reference Sec.
     15(a)(3) of the FLSA, and Sec.  207 of the
     CAA forbids retaliation only by employing
     offices.
 
B. ENFORCEMENT
 
Agency Enforcement Authorities:
    10. Grant of subpoena and other powers for use  Sec. 9; 29 U.S.C.
     in investigations and hearings. Sec.  9 of      Sec.  209.
     the FLSA grants the Labor Secretary subpoena
     and other investigatory powers for use in
     investigations and hearings. The CAA neither
     references these provisions nor sets forth
     similar provisions granting an agency
     investigatory powers. (Sec.  405(f) of the
     CAA grants subpoena powers to hearing
     officers, and Sec.  408 authorizes civil
     actions in which courts may issue subpoenas,
     but these CAA provisions do not grant
     subpoena powers for use in agency
     investigation.)
    11. Agency authority to investigate complaints  Sec. 11(a); 29
     of violations and to conduct agency initiated   U.S.C. Sec.
     investigations. Under authority of Sec.         211(a).
     11(a) of the FLSA, the Wage and Hour Division
     investigates complaints of violations and
     also conducts agency-initiated
     investigations. The CAA neither references
     these provisions nor sets forth similar
     provisions authorizing agency investigation.
    12. Recordkeeping and reporting requirements.   Sec. 11(c); 29
     The FLSA requires employers in the private      U.S.C. Sec.
     sector to make and preserve such records and    211(c).
     to make such records therefrom as the Wage
     and Hour Administrator shall prescribe by
     regulation or order as necessary or
     appropriate for enforcement. Labor Department
     regulations specify the ``payroll'' and other
     records that must be preserved for at least 3
     years and the ``employment and earnings''
     records that must be preserved for at least 2
     years, and require each employer to make
     ``such extension, recomputation, or
     transcription'' of required records, and to
     submit such reports concerning matters set
     forth in the records, as the Administrator
     may request in writing. 29 C.F.R. Sec. Sec.
     516.5-516.8. As to the Equal Pay provisions,
     EEOC regulations require employers to keep
     records in accordance with The CAA does not
     reference these provisions, and, in adopting
     implementing regulations, the Board found
     that the CAA explicitly did not made these
     requirements applicable.
    13. Agency authority to bring judicial          Secs. 16(c), 17; 29
     enforcement actions. The FLSA authorizes the    U.S.C. Sec. Sec.
     Labor Secretary to bring an action in           216(c), 217.
     district court to recover unpaid minimum
     wages or overtime compensation, and an equal
     amount of liquidated damages, and civil
     penalties, as well as injunctive relief. The
     CAA neither references these provisions nor
     sets forth similar provisions authorizing an
     agency to bring enforcement proceedings.
Judicial Procedures and Remedies:
    14. Individual liability. Because the           Secs. 3(d), 16(b);
     definition of ``employer'' under the FLSA       29 U.S.C. Sec. Sec.
     includes any person who ``acts, directly or      203(d), 216(b).
     indirectly, in the interest of an employer,''
     individuals may be held individually liable
     in an action under Sec. 16(b) of the FLSA.
     Under the CAA, individuals may not be held
     individually liable, because only an
     employing office may be named as respondent
     or defendant under Sec. Sec.  401-408 and all
     awards and settlements must generally be paid
     out of an account of the Office of Compliance
     under Sec.  415(a).
    15. Private right to sue immediately, without   Sec. 16(b); 29
     having exhausted administrative remedies. An    U.S.C. Sec.
     employee who alleges an FLSA violation may      216(b).
     sue immediately, without exhausting any
     administrative remedies. The CAA allows a
     covered employee to file an administrative
     complaint or commence a civil action only
     after having completed periods of counseling
     and mediation and an additional period of at
     least 30 days.
    16. Enforceability of subpoenas for             Sec. 16; 29 U.S.C.
     information or documents within the             Sec.  216.
     jurisdiction of the House or Senate. The FLSA
     authorizes civil actions in which courts
     exercise their ordinary subpoena authority.
     The CAA also authorizes civil actions, as
     well as administrative adjudications, but
     such authorization is subject to Sec.  413 of
     the CAA, by which the House and Senate
     decline to waive certain powers relating to
     records and information, as discussed in
     connection with Title VII at page 3, row 13,
     above.
    17. Injunctive relief. Sec.  17 of the FLSA     Sec. 17; 29 U.S.C.
     grants jurisdiction to the district courts,     Sec.  217.
     upon the complaint of the Labor Secretary, to
     restrain violations. The CAA neither
     references these provisions nor sets forth
     similar provisions authorizing an agency to
     seek injunctive relief or granting a court or
     other tribunal jurisdiction to grant it.
    18. Two- or 3-year statute of limitations. A    Secs. 6-7 of the
     civil action under the FLSA may be brought      Portal-to-Portal
     within two years after the violation            Act (``PPA''); 29
     ordinarily, or, in the case of a willful        U.S.C. Sec. Sec.
     violation, within three years. Proceedings      255-256.
     under the CAA must be commenced within 180
     days after the alleged violation.

[[Page 1574]]

 
    19. Remedy for a child labor violation. Sec.    Secs. 16(a), (e),
     Sec.  16(a), (e), and 17 of the FLSA provide    17; 29 U.S.C. Sec.
     for enforcement of child labor requirements     Sec.  216(a), (e),
     through agency enforcement actions for civil    217.
     penalties or injunction and by criminal
     prosecution. The CAA does not reference Sec.
     Sec.  16(a), (e), or 17 of the FLSA. Sec.
     203(b) of the CAA references only the
     remedies of Sec.  16(b) of the FLSA, and Sec.
      16(b) makes employers liable for: (1)
     damages if the employer violated minimum-wage
     or overtime requirements of the FLSA, and (2)
     legal or equitable relief if the employer
     violated the anti-retaliation requirements of
     the FLSA. The CAA thus does not expressly
     reference any FLSA provision establishing
     remedies for child labor violations.
Liquidated Damages; Civil and Criminal Penalties:
    20. Criminal penalties. The FLSA makes fines    Sec. 16(a); 29
     and imprisonment available for willful          U.S.C. Sec.
     violations. The CAA neither references these    216(a).
     provisions nor sets forth similar provisions
     imposing criminal penalties.
    21. Liquidated damages for retaliation. Sec.    Sec. 16(b); 29
     15(a)(3) of the FLSA prohibits discrimination   U.S.C. Sec.
     against an employee for exercising FLSA         216(b).
     rights, and Sec.  16(b) provides that an
     employer who violates Sec.  15(a)(3) is
     liable for legal or equitable relief and ``an
     additional equal amount as liquidated
     damages.'' Under the CAA, Sec.  203(b)
     incorporates the remedies of Sec. 16(b) of
     the FLSA and explicitly includes ``liquidated
     damages,'' but only ``for a violation of
     subsection (a),'' and Sec.  203(a) does not
     reference Sec.  15(a)(3) of the FLSA or
     otherwise prohibit retaliation. Retaliation
     is prohibited by Sec.  207(a) of the CAA, but
     the remedy under Sec.  207(b) is ``such legal
     or equitable remedy as may be appropriate,''
     with no express authority to award liquidated
     damages.
    22. Civil penalties. The FLSA authorizes the    Sec. 16(e); 29
     Labor Secretary or the court to assess civil    U.S.C. Sec. 216(e).
     penalties for child labor violations or for
     repeated or willful violations of the minimum
     wage or overtime requirements. The CAA does
     not reference these provisions, and Sec.
     225(c) of the CAA expressly precludes the
     awarding of civil penalties under the CAA.
 
C. OTHER AGENCY AUTHORITIES
 
23. Agency issuance of interpretative bulletins.    Secs. 9, 11, 16-17;
 The Wage and Hour Administrator has issued a        29 U.S.C. Sec.
 number of interpretative bulletins and advisory     209, 211, 216-217.
 opinions, and Sec.  10 of the PPA, 29 U.S.C. Sec.
  259, in establishing a defense for good-faith
 reliance, refers to the ``written administrative
 regulation, order, ruling, approval, or
 interpretation'' of the Administrator. Under the
 CAA, in adopting regulations implementing Sec.
 203, the Board stated that the Wage and Hour
 Division's legal basis and practical ability to
 issue interpretive bulletins and advisory
 opinions arises from its investigatory and
 enforcement authorities, and that, absent such
 authorities, ``it seems unwise, if not legally
 improper, for the Board to set forth its views on
 interpretive ambiguities in the regulations
 outside of the adjudicatory context of individual
 cases,'' and, further, that the Board ``would in
 the exercise of its considered judgment decline
 to provide authoritative opinions'' as part of
 its education and information programs. 142 Cong.
 Rec. S221, S222-S223 (daily ed. Jan. 22, 1996).
24. Requirements to post notices. Although the      Sec. 11; 29 U.S.C.
 FLSA does not expressly require the posting of      Sec.  211.
 notices, the Labor Secretary promulgated
 regulations requiring employers to post notices
 informing employees of their rights. 29 C.F.R.
 Sec.  516.4. In so doing, the Secretary relied on
 authority under Sec.  11, which deals generally
 with the collection of information. 29 C.F.R.
 part 516 (statement of statutory authority). In
 adopting implementing regulations, the Board
 found that the CAA explicitly did not incorporate
 these notice-posting requirements.
------------------------------------------------------------------------
1 See, e.g., U.S. Dep't of Labor v. Cole Enterprises, 62 F.3d 775, 778
  (6th Cir. 1995); Reich v. Circle C. Investments, Inc., 998 F.2d 324,
  329 (5th Cir. 1993); Brock v. Hamad, 867 F.2d 804, 809 n.6 (4th Cir.
  1989); Riordan v. Kempiners, 831 F.2d 690, 694-95 (7th Cir. 1987);
  Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983).


          EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988 (``EPPA'')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
1. Coverage of Capitol Police. The EPPA applies to  Secs. 2(1)-(2), 3(1)-
 any employer in commerce, with no exception for     (3), 7;  29 U.S.C.
 private-sector police forces. Under the CAA, Sec.   Sec. Sec.  2001(1)-
  204(a)(3) authorizes the Capitol Police to use     (2), 2002(1)-(3),
 lie detectors in accordance with regulations        2006.
 issued by the Board under Sec.  204(c), and the
 Board's regulations exempt the Capitol Police
 from EPPA requirements with respect to Capitol
 Police employees.
 
B. ENFORCEMENT
 
Agency Enforcement Authorities:
    2. Authority to make investigations and         Sec. 5(a)(3); 29
     inspections. The EPPA authorizes the Labor      U.S.C. Sec.
     Secretary to make investigations and            2004(a)(3).
     inspections. The CAA neither references these
     provisions nor sets forth similar provisions
     authorizing investigations or inspections by
     an agency.
    3. Recordkeeping requirements. The EPPA         Sec. 5(a)(3); 29
     authorizes the Labor Secretary to require the   U.S.C. Sec.
     keeping of records necessary or appropriate     2004(a)(3).
     for the administration of the Act. Labor
     Department regulations specify the records
     regarding any polygraph use that employers
     and examiners must maintain and preserve for
     3 years. 29 C.F.R. Sec.  801.30. The CAA does
     not reference these provisions, and, in
     adopting implementing regulations, the Board
     found that the CAA explicitly did not make
     these requirements applicable.
    4. Grant of subpoena and other powers for       Sec. 5(b); 29 U.S.C.
     investigations and hearings. The EPPA grants    Sec.  2004(b).
     the Labor Secretary subpoena and other
     investigatory powers for use in
     investigations and hearings. The CAA neither
     references these provisions nor sets forth
     similar provisions granting an agency
     investigatory powers. (Sec.  405(f) of the
     CAA grants subpoena powers to hearing
     officers, and Sec.  408 authorizes civil
     actions in which courts may issue subpoenas,
     but these CAA authorities do not grant
     subpoena powers for use in agency
     investigation.).
    5. Agency authority to bring judicial           Sec. 6(a)-(b);  29
     enforcement actions. The EPPA authorizes the    U.S.C. Sec.
     Labor Secretary to bring an action in           2005(a)-(b).
     district court to restrain violations or for
     other legal or equitable relief. The CAA
     neither references these provisions nor sets
     forth similar provisions authorizing an
     agency to bring enforcement proceedings.
Judicial Procedures and Remedies:
    6. Individual liability. The definition of      Secs. 2(2), 6; 29
     ``employer'' under the EPPA includes any        U.S.C. Sec. Sec.
     person who ``acts, directly or indirectly, in   2001(2), 2005.
     the interest of an employer.'' This
     definition is substantially the same as that
     in the FLSA and the FMLA. As discussed in
     connection with these laws at page 20, row 6,
     and page 24, row 14, above, individuals may
     be held individually liable under the FLSA,
     and, by the weight of authority, under the
     FMLA. Under the CAA, individuals may not be
     held individually liable, because only an
     employing office may be named as respondent
     or defendant under Sec. Sec.  401-408 of the
     CAA and all awards and settlements must
     generally be paid out of an account of the
     Office of Compliance under Sec.  415(a).
    7. Enforceability of subpoenas for information  Sec. 6(c)(2); 29
     or documents within the jurisdiction of the     U.S.C. Sec.
     House or Senate. The EPPA authorizes civil      2005(c)(2).
     actions in which courts exercise their
     ordinary subpoena authority. The CAA also
     authorizes civil actions, as well as
     administrative adjudications, but such
     authorization is subject to Sec.  413 of the
     CAA, by which the House and Senate decline to
     waive certain powers relating to records and
     information, as discussed in connection with
     Title VII at page 3, row 13, above.
    8. Private right to sue immediately, without    Sec. 6(c)(2); 29
     having exhausted administrative remedies. An    U.S.C. Sec.
     employee who alleges an EPPA violation may      2005(c)(2).
     sue immediately, without having exhausted any
     administrative remedies. The CAA allows a
     covered employee to file an administrative
     complaint or commence a civil action only
     after having completed periods of counseling
     and mediation and an additional period of at
     least 30 days.
    9. Three-year statute of limitations. A civil   Sec. 6(c)(2); 29
     action under the EPPA may be brought within     U.S.C. Sec.
     three years after the alleged violation.        2005(c)(2).
     Proceedings under the CAA must be commenced
     within 180 days after the alleged violation.
Civil Penalties:
    10. Civil penalties. The EPPA authorizes the    Sec. 6(a); 29 U.S.C.
     assessment by the Labor Secretary of civil      Sec.  2005(a).
     penalties for violations. The CAA does not
     reference these provisions, and Sec.  225(c)
     of the CAA expressly precludes the awarding
     of civil penalties under the CAA.
 
C. OTHER AGENCY AUTHORITIES
 
11. Requirement to post notices. The EPPA requires  Sec. 4; 29 U.S.C.
 employers to post notices prepared and              Sec.  2003.
 distributed by the Labor Secretary. The CAA does
 not reference these provisions, and, in adopting
 implementing regulations, the Board found that
 the CAA explicitly did not incorporate these
 requirements.
------------------------------------------------------------------------


    WORKER ADJUSTMENT AND RETRAINING NOTIFICAITON ACT (``WARN Act'')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
1. Notification of state and local governments.     Secs. 3(a), 5(a)(3);
 The WARN Act requires the employer to notify not    29 U.S.C. Sec. Sec.
 only affected employees, but also the state          2102(a),
 dislocated worker unit and the chief elected        2104(a)(3).
 official of local government. Although Sec.
 205(a)(1) of the CAA references Sec.  3 of the
 WARN Act for the purpose of incorporating the
 ``meaning'' of office closure and mass layoff,
 that section of the CAA sets forth provisions
 requiring notification of employees, but not of
 state and local governments.
B. ENFORCEMENT
 
Judicial Procedures and Remedies:
    2. Representative of employees may bring civil  Sec. 5(a)(5); 29
     action. The WARN Act allows a representative    U.S.C. Sec.
     of employees to sue to enforce liability. The   2104(a)(5).
     CAA does not reference these provisions, and
     Sec. Sec.  401-408 of the CAA provide only
     for the commencement or proceedings by
     covered employees.
    3. Unit of local government may bring civil     Sec. 5(a)(5); 29
     action. The WARN Act allows a unit of local     U.S.C. Sec.
     government to sue to enforce liability. The     2104(a)(5).
     CAA does not reference these provisions, and
     Sec. Sec.  401-408 of the CAA provide only
     for the commencement or proceedings by
     covered employees.
    4. Private right to sue immediately, without    Sec. 5(a)(5); 29
     having exhausted administrative remedies. An    U.S.C. Sec.
     employee, union, or local government that       2104(a)(5).
     alleges a WARN Act violation may sue
     immediately, without exhausting any
     administrative remedies. The CAA allows a
     covered employee to file an administrative
     complaint or commence a civil action only
     after having completed periods of counseling
     and mediation and an additional period of at
     least 30 days.

[[Page 1575]]

 
    5. Limitations period borrowed from state law.  Sec. 5(a)(5); 29
     The WARN Act does not provide a limitations     U.S.C. Sec.
     period for the civil actions authorized by      2104(a)(5).
     Sec.  5, and the Supreme Court has held that
     limitations periods borrowed from state law
     should be applied to WARN Act claims. North
     Star Steel Co. v. Thomas, 515 U.S. 29, 115
     S.Ct. 1927 (1995). Courts have generally
     applied state limitations periods to WARN Act
     claims ranging between one and six years. See
     id.; 29 U.S.C.A. Sec.  2104 notes of
     decisions (Note 17--Limitations) (1997 suppl.
     pamphlet). Under the CAA, proceedings must be
     commenced within 180 days after the alleged
     violation.
------------------------------------------------------------------------


    UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994
                               (``USERRA')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
ENFORCEMENT
 
Agency Enforcement Authorities:
    1. Agency authority to bring judicial           38 U.S.C. Sec.
     enforcement action. Under USERRA, if a          4323(a)(1).
     private-sector employee files a complaint
     with the Labor Secretary, and if the Labor
     Secretary refers the complaint to the
     Attorney General, the Attorney General may
     commence an action in court on behalf of the
     employee. However, while the USERRA
     provisions establishing substantive rights
     and protections generally extend, by their
     own terms, to the legislative branch, the
     Attorney General's authority under USERRA
     does not. Furthermore, the CAA neither
     references the Attorney General's authority
     under the USERRA nor sets forth similar
     provisions authorizing an agency to bring
     enforcement proceedings.
    2. Grant of subpoena and other investigatory    38 U.S.C. Sec.
     powers. Under USERRA, the Labor Secretary may   4326(b)-(d).
     receive and investigate complaints from
     private-sector employees, and may issue
     enforceable subpoenas in carrying out such an
     investigation. However, while the USERRA
     provisions authorizing the Secretary to
     receive and investigate complaints extend, by
     their own terms, to the legislative branch,
     the Secretary's power to issue subpoenas does
     not. Furthermore, the CAA neither references
     the Secretary's authority and powers under
     USERRA nor sets forth provisions granting an
     agency investigatory authority and powers.
     (Sec.  405(f) of the CAA grants subpoena
     powers to hearing officers, and Sec.  408
     authorizes civil actions in which courts may
     issue subpoenas, but these CAA authorities do
     not grant subpoena powers for use in agency
     investigation.).
Judicial Procedures and Remedies:
    3. Individual liability. Because 38 U.S.C.      38 U.S.C. Sec. Sec.
     Sec.  4303(4)(A)(1) defines an ``employer''     4303(4)(A)(1),
     in the private sector to include a ``person .   4323.
     . . to whom the employer has delegated the
     performance of employment-related
     responsibilities,'' two courts have held that
     individuals may be held individually liable
     in an action under 38 U.S.C. Sec.  4323.
     Jones v. Wolf Camera, Inc., Civ. A. No. 3:96-
     CV-2578-D, 1997 WL 22678, at *2 (N.D. Tex.,
     Jan. 10, 1997); Novak v. Mackintosh, 919
     F.Supp. 870, 878 (D.S.D. 1996). However, the
     USERRA provisions that authorize civil
     actions and damages do not, by their own
     terms, extend to the legislative branch.
     Under the CAA, while Sec.  206(b) authorizes
     damages, individuals may not be held
     individually liable, because only an
     employing office may be named as respondent
     or defendant under Sec. Sec.  401-408 of the
     CAA and all awards and settlements must
     generally be paid out of an account of the
     Office of Compliance under Sec.  415(a) of
     the CAA.
    4. Private right to sue immediately, without    38 U.S.C. Sec.
     having exhausted administrative remedies. A     4323(a)(2), (b).
     private-sector employee alleging a USERRA
     violation may sue immediately, without
     exhausting any administrative remedies.
     However, USERRA does not, by its own terms,
     entitle legislative branch employees to
     either file an administrative complaint or
     commence a civil action. Under the CAA, a
     covered employee may file an administrative
     complaint or commence a civil action, but
     only after having completed periods of
     counseling and mediation and an additional
     period of at least 30 days.
    5. Enforceability of subpoenas for information  38 U.S.C. Sec.
     or documents within the jurisdiction of the     4323(a)(2), (b).
     House or Senate. USERRA authorizes civil
     actions against private-sector employees in
     which courts exercise their ordinary subpoena
     authority. As noted in row 4 above, USERRA
     does not, by its own terms, entitle
     legislative branch employees to either file
     an administrative complaint or commence a
     civil action. The CAA does authorize civil
     actions, as well as administrative
     adjudications, but such authorization is
     subject to Sec.  413 of the CAA, by which the
     House and Senate decline to waive certain
     powers relating to records and information,
     as discussed in connection with Title VII at
     page 3, row 13, above.
    6. Four-year statute of limitation. USERRA      38 U.S.C. Sec.
     states that no state statute of limitations     4323(c)(6).
     shall apply, but otherwise provides no
     statute of limitations. Under 28 U.S.C. Sec.
     1658, statutes like USERRA enacted after
     December 1, 1990, have a 4-year statute of
     limitations unless otherwise provided by law.
     As noted in row 4 above, USERRA does not
     entitle legislative branch employees to
     either file an administrative complaint or
     commence a civil action. Under the CAA,
     proceedings must be commenced within 180 days
     after the alleged violation.
Damages:
    7. Liquidated damages. Under USERRA, 38 U.S.C.  38 U.S.C. Sec.
     Sec.  4323(c)(1)(A)(iii) grants the district    4323(c)(1)(A)(iii).
     courts jurisdiction to require a private-
     sector employer to pay not only compensatory
     damages, but also an equal amount of
     liquidated damages. This provision does not,
     by its own terms, extend to the legislative
     branch. Under the CAA, Sec.  206(b) provides
     that the remedy for a violation of Sec.
     206(a) of the CAA shall include such remedy
     as would be appropriate if awarded under 38
     U.S.C. Sec.  4323(c)(1). However, the CAA
     does not state specifically whether the
     liquidated damages authorized by subparagraph
     (A)(iii) of Sec.  4323(c)(1) are included
     among the remedies incorporated by Sec.
     206(a). By contrast, in the two other
     instances where a law made generally
     applicable by the CAA provides for liquidated
     damages, the CAA states specifically that the
     liquidated damages are incorporated. See Sec.
      201(b)(2)(B) of the CAA (authorizing the
     award of ``such liquidated damages as would
     be appropriate if awarded under section 7(b)
     of [the ADEA]'); Sec.  203(b) of the CAA
     (authorizing the award of ``such remedy,
     including liquidated damages, as would be
     appropriate if awarded under section 16(b) of
     the [FLSA]'').
------------------------------------------------------------------------


         OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (``OSHAct'')
------------------------------------------------------------------------
 
------------------------------------------------------------------------
A. SUBSTANTIVE RIGHTS AND PROTECTIONS
 
1. Employers may not retaliate against employees    Sec. 11(c); 29
 of other employers. Sec.  11(c) of the OSHAct       U.S.C. Sec.
 forbids retaliation against ``any employee'' for    660(c).
 exercising rights under the OSHAct, and Labor
 Department regulations state that ``because
 section 11(c) speaks in terms of any employee, it
 is also clear that the employee need not be an
 employee of the discriminator.'' 29 C.F.R. Sec.
 1977.5(b). Under the CAA, an employing office may
 be charged with retaliation under Sec.  207 only
 by a ``covered employee,'' defined as an employee
 of the nine legislative-branch employers listed
 in Sec.  101(3).
2. Unions and other ``persons'' not acting as       Secs. 3(4), 11(c);
 employers may not retaliate. Sec.  11(c) of the     29 U.S.C. Sec. Sec.
 OSHAct forbids retaliation against an employee by    652(4), 660(c).
 any ``person,'' and Sec.  3(4) defines ``person''
 broadly to include ``one or more individuals'' or
 ``any organized group of persons.'' Regulations
 of the Labor Secretary explain: ``A person may be
 chargeable with discriminatory action against an
 employee of another person. Sec.  11(c) would
 extend to such entities as organizations
 representing employees for collective bargaining
 purposes, employment agencies, or any other
 person in a position to discriminate against an
 employee.'' 29 C.F.R. Sec.  1977.5(b). Under the
 CAA, Sec.  207 forbids retaliation only by an
 employing office.
 
B. ENFORCEMENT
 
Agency Enforcement Authorities:
    3. Authority to conduct ad hoc inspections      Sec. 8(a); 29 U.S.C.
     without a formal request by an employing        Sec.  657(a).
     office or covered employee. Sec.  8(a) of the
     OSHAct authorizes the Labor Secretary to
     conduct inspections in the private sector at
     any reasonable times. Under the CAA, Sec.
     215(c)(1), (e)(1) references Sec.  8(a) of
     the OSHAct, but only for the purpose of
     authorizing the General Counsel to exercise
     the Secretary's authority in making
     inspections. However, Sec.  215(c)(1), (e)
     only provides express authority to inspect
     ``[u]pon written request of any employing
     office or covered employee'' or in ``periodic
     inspections'' that are ``[o]n a regular
     basis, and at least once each Congress.''.
    4. Grant of investigatory powers. The OSHAct    Sec. 8(b); 29 U.S.C.
     empowers the Labor Secretary, in conducting     Sec.  657(b).
     an inspection or investigation, to compel the
     production of evidence under oath. The CAA
     neither references Sec.  8(b) nor sets forth
     similar provisions granting compulsory
     process in the context of inspections and
     investigations. (Sec.  405(f) of the CAA
     grants subpoena powers to hearing officers,
     but these CAA authorities do not grant
     subpoena powers for use in agency inspection
     or investigation.).
    5. Authority to require recordkeeping and       Secs. 8(c), 24(e);
     reporting of general work-related injuries      29 U.S.C. Sec. Sec.
     and illnesses. The OSHAct requires employers     657(c), 673(e).
     to make and preserve such records as the
     Labor Secretary, in consultation with the HHS
     Secretary, may prescribe by regulation as
     necessary or appropriate for enforcement, and
     to file such reports as the Secretary may
     prescribe by regulation. Employers must also
     maintain records and make periodic reports on
     work-related deaths, injuries, and illnesses,
     and maintain records of employee exposure to
     toxic materials. The CAA does not reference
     these provisions, and the Board, in adopting
     implementing regulations, determined that
     these requirements were not made applicable
     by the CAA. 143 Cong. Rec. S64 (Jan. 7,
     1997). However, the Board did incorporate
     into its regulations several employee-
     notification requirements with respect to
     particular hazards that are contained in
     specific Labor Department standards.
    6. Agency enforcement of the prohibition        Sec. 11(c)(2); 29
     against retaliation. Under the OSHAct, an       U.S.C. Sec.
     employee who has suffered retaliation may       660(c)(2).
     file a complaint with the Labor Secretary,
     who shall conduct an investigation and, if
     there was a violation, shall sue in district
     court. The CAA does not reference these
     provisions and no provision of the CAA sets
     forth similar provisions authorizing an
     agency to investigate a complaint of
     retaliation or to bring an enforcement
     proceeding.

[[Page 1576]]

 
Administrative and Judicial Procedures and
 Remedies:
    7. Individual liability for retaliation.        Sec. 11(c); 29
     Because Sec.  11(c) of the OSHAct forbids       U.S.C. Sec.
     retaliation by ``any person,'' an employee's    660(c).
     officer responsible for retaliation may be
     sued and, in appropriate circumstances, be
     held liable. See Donovan v. Diplomat Envelope
     Corp., 587 F. Supp. 1417, 1425 (E.D.N.Y.
     1984) (``We cannot rule out the possibility
     that damages might under some circumstances
     be appropriately imposed upon an employer's
     officer responsible for a discriminatory
     discharge.'') The CAA does not reference Sec.
      11(c) of the OSHAct, and individuals may be
     neither sued nor held liable under the CAA
     because Sec.  207 forbids retaliation only by
     an employing office, only an employing office
     may be named as respondent or defendant under
     Sec. Sec.  401-408, and all awards and
     settlements must generally be paid out of an
     account of the Office of Compliance under
     Sec.  415(a).
    8. Employer's burden to contest a citation      Sec. 10(a); 29
     within 15 days. The OSHAct provides that the    U.S.C. Sec.
     employer has the burden of contesting a         659(a).
     citation within 15 days, or else the citation
     becomes final and unreviewable. The CAA does
     not reference these provisions, and Sec.
     215(c)(3) of the CAA places the burden of
     initiating proceedings on the General Counsel.
    9. Employees' right to challenge the abatement  Sec. 10(c); 29
     period. The OSHAct gives employees or their     U.S.C. Sec.
     representatives the right to challenge, in an   659(c).
     adjudicatory hearing, the period of time
     fixed in a citation for the abatement of a
     violation. The CAA neither references these
     provisions nor sets forth similar provisions
     establishing a process by which employees or
     their representatives may challenge the
     abatement period.
    10. Employees' right to participate as parties  Sec. 10(c); 29
     in hearings on citations. The OSHAct gives      U.S.C. Sec.
     affected employees or their representatives     659(c).
     the right to participate as parties in
     hearings on a citation. The CAA neither
     references these provisions nor sets forth
     similar provisions allowing employees or
     their representatives to participate as
     parties.
    11. Employees' right to take appeal from        Sec. 11(a); 29
     administrative orders on citations. The         U.S.C. Sec.
     OSHAct gives ``any person adversely affected    660(a).
     or aggrieved'' by an order on a citation the
     right to appeal to the U.S. Courts of
     Appeals. The CAA does not reference these
     provisions, and Sec.  215 (c)(3), (5) sets
     forth authority for the employing office and
     the General Counsel to bring or participate
     in administrative or judicial appeals on a
     citation only.
    12. Enforceability of subpoenas for             Sec. 12(h)-(i); 29
     information or documents within the             U.S.C. Sec.  661(h)-
     jurisdiction of the House or Senate. The        (i).
     OSHAct grants subpoena power to the
     Occupational Safety and Health Review
     Commission, which holds adjudicatory hearings
     under the OSHAct. The CAA also authorizes
     administrative adjudications, but such
     authorization is subject to Sec.  413 of the
     CAA, by which the House and Senate decline to
     waive certain powers relating to records and
     information, as discussed in connection with
     Title VII at page 3, row 13, above.
    13. Court jurisdiction, upon petition of the    Sec. 13(a) 29 U.S.C.
     agency, to restrain imminent danger. Sec.       Sec.  662.
     13(a) of the OSHAct grants jurisdiction to
     the district courts, upon petition of the
     Labor Secretary, to restrain an imminent
     danger. Under the CAA, Sec.  215(b)
     references Sec.  13(a) of the OSHAct to the
     extent of providing that ``the remedy for a
     violation'' shall be ``an order to correct
     the violation, including such order as would
     be appropriate if issued under section
     13(a).'' However, the only process set forth
     in the CAA for the granting of remedies is
     the citation procedure under Sec. Sec.
     215(c)(2)-(3) and 405, culminating when the
     hearing officer issues a written decision
     that shall ``order such remedies as are
     appropriate pursuant to title II [of the
     CAA].'' Thus, the CAA does not expressly
     grant jurisdiction to courts to issue
     restraining orders authorized under Sec.
     215(b) and does not expressly authorize the
     General Counsel to petition for such
     restraining orders. However, Sec.  4.12 of
     the Procedural Rules of the Office of
     Compliance states that, if the General
     Counsel's designee concludes that an imminent
     danger exists, ``he or she shall inform the
     affected employees and the employing offices
     . . . that he or she is recommending the
     filing of a petition to restrain such
     conditions or practices . . . in accordance
     with section 13(a) of the OSHAct, as applied
     by section 215(b) of the CAA.
    14. Employees' right to sue for mandamus        Sec. 13(d); 29
     compelling the Labor Secretary to seek a        U.S.C. Sec.  662(d)
     restraining order against an imminent danger.
     The OSHAct gives employees at risk or their
     representatives the right to sue for a writ
     of mandamus to compel the Secretary to seek a
     restraining order and for further appropriate
     relief. The CAA neither references these
     provisions nor sets forth similar provisions
     authorizing employees or their
     representatives to seek to compel an agency
     to act.
Civil and Criminal Penalties:
    15. Civil penalties for violation. Civil        Sec. 17(a)-(d), (i)-
     penalties may be assessed for violations of     (l); 29 U.S.C. Sec.
     the OSHAct, graded in terms of seriousness       666(a)-(d), (i)-
     and willfulness of the violation. The CAA       (l).
     does not reference these provisions, and Sec.
      225(c) of the CAA specifically precludes the
     awarding of civil penalties.
    16. Criminal penalties for willful violation    Sec. 17(e); 29
     causing death. Under the OSHAct, fines and      U.S.C. Sec.
     imprisonment may be imposed for a willful       666(e).
     violation causing death. The CAA neither
     references these provisions nor sets forth
     similar provisions imposing criminal
     penalties.
    17. Criminal penalties for giving unauthorized  Sec. 17(f); 29
     advance notice of inspection. Under the         U.S.C. Sec.
     OSHAct, fines and imprisonment may be imposed   666(f).
     for giving unauthorized advance notice of an
     inspection. The CAA does not reference these
     provisions or otherwise provide for criminal
     penalties. Sec.  4.06 of the Procedural Rules
     of the Office of Compliance forbids giving
     advance notice of inspections except as
     authorized by the General Counsel in
     specified circumstances, but applicable
     penalties are not specified.
    18. Criminal penalties for knowingly making     Sec. 17(g); 29
     false statements. Under the OSHAct, fines and   U.S.C. Sec.
     imprisonment may be imposed for knowingly       666(g).
     making false statements in any application,
     record, or report under the OSHAct. The CAA
     neither references these provisions nor sets
     forth similar provisions imposing criminal
     penalties.
 
C. OTHER AGENCY AUTHORITIES
 
19. Requirement that citations be posted. Sec.      Sec. 9(b); 29 U.S.C.
 9(b) of the OSHAct requires that each citation be   Sec.  658(b).
 posted at or near the place of violation, as
 prescribed by ``regulations issued by the
 Secretary.'' The Secretary may enforce this
 requirement under Sec. Sec.  9 and 17 of the
 OSHAct, which include authority to issue
 citations and to assess or seek civil and
 criminal penalties for a violation of any
 ``regulations prescribed pursuant to'' the
 OSHAct. Under the CAA, Sec.  215(c)(2) references
 Sec.  9 of the OSHAct, but only to the extent of
 granting the General Counsel the authorities of
 the Secretary ``to issue'' a citation or notice,
 and the CAA does not expressly state whether the
 employing office has a duty to post the citation.
 Sec.  4.13 of the Procedural Rules of the Office
 of Compliance directs employing offices to post
 citations, but the Procedural Rules are issued
 under Sec.  303 of the CAA, which authorizes the
 adoption of rules governing ``the procedures of
 the Office [of Compliance].'' Furthermore, as to
 whether a requirement to post citations is
 enforceable under the CAA, the only enforcement
 mechanism stated in Sec.  215 is set forth in
 subsection (c)(2), which authorizes the General
 Counsel to issue citations ``to any employing
 office responsible for correcting a violation of
 subsection (a)''; but subsection (a) does not
 expressly reference either Sec.  9(b) of the
 OSHAct or the Office's Procedural Rules.
------------------------------------------------------------------------

Appendix II--Enforcement Regimes of Certain Laws Made Applicable by the 
                                  CAA

       The tables in this Appendix show the elements of private-
     sector enforcement regimes for nine of the laws made 
     applicable by the CAA: Title VII, ADEA, EPA, ADA title I, 
     FMLA, FLSA, EPPA, WARN Act, and USERRA. (Because ADA title I 
     incorporates powers and procedures from Title VII, these two 
     laws are combined in a single table.) These nine are the laws 
     for which the CAA does not grant investigatory or prosecutory 
     authority to the Office of Compliance. ADA titles II-II, the 
     OSHAct, and Chapter 71, for which the CAA does grant such 
     enforcement authority to the Office of Compliance, are not 
     included in these tables.
       In each of the tables, agency enforcement authority is 
     described in the following six categories:
       1. Initiation of agency investigation, whether by receipt 
     of a charge by an affected individual or by agency 
     initiative.
       2. Investigatory powers of the agency, including authority 
     to conduct on-site investigations and power to issue and 
     enforce subpoenas.
       3. Authority to seek compliance by informal conference, 
     conciliation, and persuasion.
       4. Prosecutory authority, including power of an agency to 
     commence civil actions, the remedies available, and the 
     authority to seek fines or civil penalties.
       5. Authority of the agency to issue advisory opinions.
       6. Recordkeeping and reporting requirements.


        TITLE VII and AMERICANS WITH DISABILITIES ACT (title I)

       The ADA (title I) incorporates by reference the enforcement 
     powers, remedies, and procedures of Title VII,1 
     and is therefore summarized here in the same chart as Title 
     VII.
---------------------------------------------------------------------------
     \1\ Footnotes at end of article.
---------------------------------------------------------------------------
       1. Initiation of investigation. Individual charges. When an 
     individual claimant files a charge, Title VII and the ADA 
     require the EEOC to serve notice of the charge on the 
     respondent and to investigate.2 Commissioner 
     charges. Title VII and the ADA also require the EEOC to serve 
     notice and to investigate any charge filed by a Member of the 
     EEOC.3 Commissioner charges are ordinarily based 
     on leads developed by EEOC field offices.
       2. Investigatory powers.
       On-site investigation. In connection with the investigation 
     of an individual charge or a Commissioner charge, Title VII 
     and the ADA authorize the EEOC and its representatives to 
     ``have access to, for purposes of examination, and the right 
     to copy any evidence.'' 4 According to the EEOC 
     Compliance Manual, this authority includes interviewing 
     witnesses.5
       Subpoenas. Issuance. Title VII and the ADA grant the EEOC 
     the power to issue subpoenas, relying on authorities under 
     the NLRA,6 and EEOC regulations specify that 
     subpoenas may be issued by any Commission member or any 
     District Directors and certain other agency Directors and 
     ``any representatives designated by the Commission.'' 
     7 Petitions for revocation or modification. Under 
     EEOC regulations, Title VII and ADA subpoenas may be 
     challenged by petition to the Director who issued the 
     subpoena, who shall either grant the petition in its entirety 
     or submit a proposed determination to the Commission for 
     final determination.8 Enforcement. Title VII and 
     the ADA also empower the EEOC to seek district court 
     enforcement of such subpoenas under authorities of the 
     NLRA,9 and EEOC regulations specify that the 
     General Counsel or his or her designee may institute such 
     proceedings.10
       3. ``Reasonable cause'' determination; Conciliation. Title 
     VII and the ADA provide that, if the EEOC determines after 
     investigation that there is ``reasonable cause to believe 
     that the charge is true,'' then the

[[Page 1577]]

     EEOC must ``endeavor to eliminate any such alleged unlawful 
     employment practice'' by informal ``conference, conciliation, 
     and persuasion''; otherwise, the EEOC must dismiss the charge 
     and send notice to the parties, including a right-to-sue 
     letter to the person aggrieved.11
       4. Prosecutory authority.
       Civil enforcement actions. Generally. The EEOC has the 
     authority to prosecute alleged private-sector Title VII and 
     ADA violations in district court, after the Commission has 
     found ``reasonable cause'' and has been unable to resolve the 
     case through ``conference, conciliation, and persuasion.'' 
     12 The EEOC General Counsel brings such civil 
     actions on behalf of the EEOC. Remedies. The agency may 
     request Title VII remedies (injunction, with or without back 
     pay);13 compensatory or punitive damages may be 
     granted only in an ``action brought by a complaining party.'' 
     14 Title VII and the ADA also authorize the EEOC 
     to ask the district courts for temporary or preliminary 
     relief.15
       Relation with private right of action. If the EEOC sues, 
     Title VII specifically authorizes the person aggrieved to 
     intervene.16 If the EEOC dismisses the charge, or 
     fails to either enter into a conciliation agreement including 
     the person aggrieved or commence a civil action within 180 
     days after the charge is filed, the EEOC must issue a right-
     to-sue letter to the person aggrieved, who may then sue; and 
     the EEOC may then intervene if the case is of ``general 
     public importance.'' 17
       Fine for notice-posting violation. Title VII (though not 
     the ADA) imposes a fine of not more than $100 for a willful 
     violation of notice-posting requirements.18 The 
     EEOC Compliance Manual states that the EEOC district or area 
     office can levy such a fine, and, if a respondent is 
     unwilling to pay, ``The Regional Attorney should be 
     notified.'' 19
       5. Advisory opinions. Title VII. Title VII establishes a 
     defense for good-faith reliance on ``any written 
     interpretation or opinion of the Commission.'' 20 
     EEOC regulations specify that the following may be relied 
     upon as such: (i) an ``opinion letter'' of the Legal Counsel 
     or the General Counsel approved by the Commission, (ii) a 
     Federal Register publication designated as an 
     ``interpretation or opinion,'' or (iii) an ``interpretation 
     or opinion'' included in a Commission determination of no 
     reasonable cause. 21 ADA. Unlike the other 
     discrimination laws, the ADA does not establish a defense for 
     good-faith reliance on advisory opinions, and EEOC 
     regulations do not provide for their issuance. Nevertheless, 
     the EEOC appended ``interpretive guidance'' to its 
     substantive regulations, stating that ``the Commission will 
     be guided by it when resolving charges of employment 
     discrimination.'' 22
       6. Recordkeeping/reporting. Title VII and the ADA require 
     employers to make and preserve records, and to make reports, 
     as the EEOC shall prescribe ``by regulation or order, after 
     public hearing.'' 23 Recordkeeping. EEOC 
     regulations require employers to preserve for one year 
     ``[a]ny personnel or employment record,'' 24 and 
     also reserve the right to impose specific recordkeeping 
     requirements on individual employers or group of 
     employers.25 The EEOC's Title VII ``Uniform 
     Guidelines on Employee Selection Procedures'' require that 
     records be maintained by users of such 
     procedures.26 Reporting. EEOC regulations require 
     employers having 100 or more employees to file an annual 
     Title VII ``Employer Information Report EEO-1,'' 
     27 and also reserve the right to impose special or 
     supplementary reporting requirements on individual employers 
     or groups of employers under either Title VII or the 
     ADA.28 Enforcement. The EEOC may ask district 
     courts to order compliance with Title VII and the ADA 
     recordkeeping and reporting requirements.29


              AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967

       The ADEA is a procedural hybrid, modeling some of its 
     procedures on Title VII, and incorporating other procedures 
     from the FLSA. The ADEA was originally implemented and 
     enforced by the Labor Department; the Secretary's functions 
     were transferred to the EEOC by the Reorganization Plan in 
     1978, 30 and ADEA procedures were conformed in 
     some respects to those of Title VII by the Civil Rights Act 
     of 1991.
       1. Initiation of investigation. Individual charges. Upon 
     receiving any ADEA complaint, the EEOC must notify the 
     respondent. 31 Unlike Title VII and the ADA, the 
     ADEA does not specifically require the EEOC to investigate 
     complaints, but the EEOC applies a uniform policy for all 
     discrimination laws, conducting an investigation appropriate 
     to each particular charge. 32 Directed 
     investigations. Unlike Commissioner charges under Title VII 
     or the ADA, directed investigations under the ADEA may be 
     commenced without action by an EEOC Member or notice to the 
     respondent.
       2. Investigatory powers. The ADEA grants the EEOC broad 
     investigatory power by reference to the FLSA. 33 
     With respect to subpoenas, the FLSA relies, in turn, on 
     authorities of the FTC Act. 34
       On-site investigation. The EEOC and its representatives are 
     authorized to investigate and gather data, enter and inspect 
     an employer's premises and records, and question employees to 
     ``determine whether any person has violated'' the ADEA or 
     which may ``aid in . . . enforcement.'' 35
       Subpoenas. Issuance. The ADEA, relying on authorities of 
     the FTC Act, grants to the EEOC the power to issue subpoenas. 
     36 EEOC regulations, citing the agency's power to 
     delegate under the ADEA, delegate subpoena power to agency 
     Directors and the General Counsel or their designees. 
     37 Unlike under Title VII and the ADA, there is no 
     procedure for asking the EEOC to reconsider or review a 
     subpoena under the ADEA. 38 Enforcement. The ADEA 
     authorizes the EEOC to invoke the aid of Federal courts to 
     enforce subpoenas under authorities of the FTC Act, 
     39 and the EEOC Compliance Manual specifies that 
     the Office of General Counsel and the Regional Attorneys may 
     institute such proceedings. 40
       3. ``Reasonable cause'' determination; Conciliation. The 
     ADEA provides that, upon receiving a charge, the EEOC must 
     ``seek to eliminate any alleged unlawful practice'' by 
     informal ``conference, conciliation, and persuasion.'' 
     41 The ADEA, unlike Title VII and the ADA, does 
     not require the Commission to make a ``reasonable cause'' 
     determination as a prerequisite to conciliation, but EEOC 
     regulations state that informal conciliation will be 
     undertaken when the Commission has a ``reasonable basis to 
     conclude'' that a violation has occurred or will occur. 
     42
       4. Prosecutory authority.
       Civil actions. Generally. The EEOC has authority to 
     prosecute alleged ADEA violations in district court if the 
     EEOC is unable to ``effect voluntary compliance'' through 
     informal conciliation. 43 The EEOC General Counsel 
     brings such civil actions on behalf of the EEOC. Remedies. 
     The agency may request amounts owing under the ADEA, 
     including liquidated damages in case of willful violations, 
     and an order restraining violations, including an order to 
     pay compensation due. 44
       Relation with private right of action. An individual may 
     bring a civil action 60 days after a charge is filed 
     45 and must sue within 90 days after receiving 
     notice from the EEOC that the charge has been dismissed or 
     proceedings otherwise terminated. 46 Thus, in 
     contrast to Title VII and the ADA, the ADEA does not require 
     that the EEOC issue a right to sue letter before an 
     individual may sue. 47 As is the case under the 
     FLSA, the EEOC's commencement of a suit on the individual's 
     behalf terminates the individual's unexercised right to sue, 
     48 but most cases hold that an EEOC suit filed 
     after an individual has commenced a suit does not terminate 
     the individual's suit. 49
       5. Advisory opinions. The ADEA establishes a defense for 
     good-faith reliance on ``any written administrative 
     regulation, order, ruling, approval, or interpretation'' of 
     the EEOC. 50 EEOC regulations specify that the 
     following may be relied upon as such: (i) an ``opinion 
     letter'' of the Legal Counsel or the General Counsel approved 
     by the Commission, or (ii) a Federal Register publication 
     designated as an ``interpretation or opinion'; 51 
     and the EEOC has codified a body of its ADEA interpretations 
     in the Code of Federal Regulations. 52
       6. Recordkeeping/reporting. The ADEA empowers the EEOC to 
     require the keeping of necessary and appropriate records in 
     accordance with the powers in section 11 of the FLSA. 
     Recordkeeping. EEOC regulations specify the ``payroll'' 
     records that employers must maintain and preserve for at 
     least 3 years and ``personnel or employment'' records that 
     employers must maintain and preserve for at least 1 year. 
     53 Reporting. Although the ADEA does not 
     specifically require employees to submit reports, it 
     references FLSA provisions requiring every employer ``to make 
     such reports'' from required records as the Administrator 
     shall prescribe. 54 EEOC regulations require each 
     employer to make ``such extension, recomputation, or 
     transcription'' of records and to submit ``such reports 
     concerning actions taken and limitations and classifications 
     of individuals set forth in records'' as the EEOC or its 
     representative may request in writing. 55


                             equal pay act

       The enforcement regime for the Equal Pay Act (``EPA'') is a 
     hybrid between the FLSA model and the Title VII model. The 
     EPA legislation in 1963 added a new section 6(d) to the FLSA 
     establishing substantive rights and 
     responsibilities,56 and relied on the existing 
     FLSA provisions establishing enforcement powers, remedies, 
     and procedures. The EPA was, at first, implemented and 
     enforced by the Labor Department with the rest of the FLSA; 
     the Secretary's EPA functions were transferred to the EEOC by 
     the Reorganization Plan in 1978,57 and the EEOC 
     has conformed its EPA enforcement processes with those for 
     Title VII in some respects.
       1. Initiation of investigation. Individual complaints. 
     Unlike the other discrimination laws, the FLSA, as amended by 
     the EPA, does not require the EEOC to notify the respondent 
     or to investigate complaints. However, the EEOC applies a 
     uniform policy for all discrimination laws, conducting an 
     investigation appropriate to each particular 
     charge.58 Directed investigations. Unlike 
     Commissioner charges under Title VII and the ADA, directed 
     investigations under the ADEA may be commenced without action 
     by an EEOC Member or notice to the respondent.
       2. Investigatory powers. The FLSA, of which the EPA is a 
     part, grants the EEOC broad investigatory 
     authority.59 With respect to subpoenas, the FLSA 
     relies, in turn, on authorities of the FTC Act.60

[[Page 1578]]

       On-site investigation. The FLSA, as amended by the EPA, 
     authorizes the EEOC and its representatives to investigate 
     and gather data, enter and inspect an employer's premises and 
     records, and question employees to ``determine whether any 
     person has violated'' the EPA or which may ``aid in . . . 
     enforcement'' of the EPA. 61
       Subpoenas. Under the FLSA, as amended by the EPA, the EEOC 
     can issue and enforce subpoenas, relying on the authorities 
     of the FTC Act.62 Issuance. The power under the 
     FLSA to issue subpoenas may not be delegated,63 
     and EEOC regulations provide that subpoenas may be issued by 
     any Member of the Commission.64 Enforcement. The 
     FLSA, as amended by the EPA, authorizes the EEOC to invoke 
     the aid of Federal courts to enforce subpoenas,65 
     and the EEOC Compliance Manual specifies that the Office of 
     General Counsel and the Regional Attorneys may institute such 
     proceedings.66
       3. ``Reasonable Cause'' Determination; Conciliation. The 
     FLSA, as amended by the EPA, does not require the EEOC to 
     issue a written determination on each case or to undertake 
     conciliation efforts. However, it is EEOC's uniform policy to 
     issue ``reasonable cause'' letters for all laws, once a case 
     has been found to meet the reasonable cause 
     standard,67 and EEOC office directors are granted 
     discretion to invite a respondent to engage in conciliation 
     negotiations when a ``reasonable cause'' letter is 
     issued.68
       4. Prosecutory authority.
       Civil proceedings. Generally. The EEOC has the authority to 
     prosecute alleged EPA violations in district 
     court.69 Unlike other discrimination laws, the 
     FLSA, as amended by the EPA, authorizes the EEOC to sue 
     without first having undertaken conciliation efforts. The 
     EEOC General Counsel brings such civil actions on behalf of 
     the EEOC. Remedies. The agency may request back wages, plus 
     an equal amount in liquidated damages on behalf of aggrieved 
     persons, and may also seek an injunction in federal district 
     court restraining violations, including an order to pay 
     compensation due, plus interest.70
       Relation with private right of action. Unlike the other 
     discrimination laws, the FLSA, as amended by the EPA, does 
     not require an individual to first file a charge with the 
     EEOC and await conciliation efforts before bringing a civil 
     action.71 If the EEOC first commences suit on the 
     individual's behalf, the individual's right to bring suit 
     terminates.72
       5. Advisory opinions. The Portal-to-Portal Act (``PPA'') 
     establishes a defense for good-faith reliance on the 
     ``written administrative regulation, order, ruling, approval, 
     or interpretation'' of the Administrator.73 The 
     EEOC has published procedures for requesting opinion letters 
     under the EPA, and has specified that the following may be 
     relied upon as such: (i) an ``opinion letter'' of the Legal 
     Counsel or the General Counsel approved by the Commission, or 
     (ii) a Federal Register publication designated as an 
     ``interpretation or opinion.'' 74
       6. Recordkeeping/reporting. Under the FLSA, as amended by 
     the EPA, every employer must make and preserve such records, 
     and ``make such reports therefrom,'' as the EEOC shall 
     prescribe ``by regulation or order.'' 75 
     Recordkeeping. The EEOC regulations adopt by reference the 
     Labor Department's FLSA regulations specifying the 
     ``payroll'' and other records that employers must maintain 
     and preserve for at least 3 years and the ``employment and 
     earnings'' records that employers must maintain and preserve 
     for at least 2 years.76 In addition, EEOC 
     regulations require employers to preserve for 2 years any 
     records made in the ordinary course of business that describe 
     or explain any differential in wages paid to members of the 
     opposite sex in the same establishment.77 
     Reporting. The Labor Department's regulations, which are 
     adopted by reference by EEOC's regulations, also require each 
     employer to make ``such extension, recomputation, or 
     transcription'' of required records, and to submit ``such 
     reports,'' as may be ``require[d] in writing.'' 78


                  family and medical leave act of 1993

       The FMLA incorporates much of the investigative authority 
     set forth in the FLSA 79 and establishes 
     prosecutorial powers modeled on those in the 
     FLSA.80 Furthermore, the FMLA specifically 
     requires the Secretary to ``receive, investigate, and attempt 
     to resolve'' complaints of violations ``in the same manner 
     that the Secretary receives, investigates, and attempts to 
     resolve complaints of [FLSA] violations.'' 81
       1. Initiation of investigation. Individual complaints. The 
     FMLA requires that complaints be received and investigated in 
     the same manner as FLSA complaints, even though the FLSA 
     itself does not require the receipt and investigation of 
     individual complaints. In practice, as the Wage and Hour 
     Division receives and accepts complaints, which it analyzes 
     and investigates on a worst-first priority 
     basis,82 the Division is required to do the same 
     for FMLA complaints. Directed investigations. The FMLA 
     references the investigatory power as the FLSA,83 
     under which authority the Division conducts directed 
     investigations.84
       2. Investigatory powers.
       On-site investigation. The FMLA references the 
     investigatory power of the FLSA,85 which affords 
     authority to the Administrator and his representatives to 
     investigate and gather data, enter and inspect an employer's 
     premises and records, and question employees to ``determine 
     whether any person has violated'' the FLSA or which may ``aid 
     in . . . enforcement'' of the FLSA.86
       Subpoenas. The FMLA incorporates the subpoena power set 
     forth in the FLSA, under which the Secretary and the 
     Administrator can issue and enforce subpoenas, relying on the 
     authorities of the FTC Act.87 Issuance. The power 
     of the Secretary and the Administrator to issue subpoenas 
     under the FLSA may not be delegated.88 
     Enforcement. The FLSA authorizes the Secretary and the 
     Administrator to invoke the aid of Federal courts to enforce 
     subpoenas,89 and that such civil litigation on 
     behalf of the Department is handled by the Solicitor of Labor 
     and the Regional Solicitors.
       3. Conciliation. The FMLA requires the Secretary to 
     ``attempt to resolve'' FMLA complaints in the same way as 
     FLSA complaints, even though the FLSA does not require 
     conciliation. In practice, however, where the FLSA violation 
     appears to be minor and to involve only a single individual, 
     the investigator will ask the employee for permission to use 
     his or her name and will then telephone the employer to ask 
     for a response to the charge, and, if there appears to be a 
     violation, will close the matter upon the payment of back 
     wages.90
       4. Prosecutory authority.
       Civil proceedings. Generally. The Secretary has the 
     authority to prosecute alleged FMLA violations in district 
     court.91 The FMLA specifies that the Solicitor of 
     Labor may represent the Secretary in any such 
     litigation.92 Remedies. The agency may seek: (i) 
     damages, including liquidated damages, owing to an employee, 
     and (ii) an order restraining violations, including an order 
     to pay compensation due, or other equitable 
     relief.93
       Relation with private right of action. Unlike the 
     discrimination laws, but like the FLSA, the FMLA does not 
     require an individual to first file a charge with the agency 
     and await conciliation efforts before bringing a civil 
     action.94 However, if the Labor Department first 
     commences suit on the individual's behalf, the individual's 
     right to bring suit terminates.95
       Administrative assessment of civil penalties. Civil 
     penalties for violation of notice-posting requirements 
     96 may be assessed, according to the Secretary's 
     regulations, by any Labor Department representative, subject 
     to appeal to the Wage and Hour Regional Administrator, and 
     subject to judicial collection proceeding commenced by the 
     Solicitor of Labor.97
       5. Advisory opinions. Although the FMLA establishes a 
     defense against liquidated damages for good-faith violations 
     where the employer had reasonable cause to believe the 
     conduct was not a violation,98 the Act does not 
     refer specifically to reliance on interpretations or opinions 
     of the Secretary or the Administrator, and the Secretary's 
     regulations contain neither FMLA interpretations or opinions 
     designated as such nor procedures for requesting 
     interpretations or opinions.
       6. Recordkeeping/reporting. Recordkeeping. The FMLA 
     requires employers to make, keep, and preserve records in 
     accordance with regulations of the Secretary,99 
     and those regulations specify the records regarding payroll, 
     benefits, and FMLA leave and disputes that employers must 
     maintain and preserve for 3 years.100 Reporting. 
     The FMLA references the recordkeeping authorities under the 
     FLSA, which include the requirement that employers shall make 
     ``reports therefrom [from required records]'' as the 
     Administrator shall ``prescribe by regulation or 
     order.''101 The FMLA further provides that the 
     Secretary may not require an employer to submit to the 
     Secretary any books or records more than once in 12 months, 
     unless the Secretary has reasonable cause to believe there 
     may be a violation or is investigating an employee 
     charge.102 The Secretary's FMLA regulations 
     indicate that employers must submit records ``specifically 
     requested by a Departmental official'' and must prepare 
     ``extensions or transcriptions'' of information in the 
     records ``upon request.'' 103


                    FAIR LABOR STANDARDS ACT OF 1938

       1. Initiation of investigation. Individual complaints. 
     Unlike Title VII, the FLSA does not specifically require the 
     investigation of individual complaints, but the Wage and Hour 
     Division receives and accepts complaints, which it analyzes 
     and investigates on a worst-first priority 
     basis.104 Directed investigations. The FLSA has no 
     counterpart to the Commissioner charges under Title VII. 
     Instead, the Division can conduct directed investigations 
     without formal approval by the head of the agency, developing 
     leads from a variety of sources.105 The Division 
     also conducts periodic compliance surveys, reviewing wages 
     paid to a statistical sampling of employees at a random 
     sample of employers, and may initiate a directed 
     investigation when a violation is evident.106
       2. Investigatory powers.
       On-site investigation. The FLSA authorizes the 
     Administrator and his representatives to investigate and 
     gather data, enter and inspect an employer's premises and 
     records, and question employees to ``determine whether any 
     person has violated'' the

[[Page 1579]]

     FLSA or which may ``aid in . . . enforcement'' of the 
     FLSA.107
       Subpoenas. Under the FLSA, the Secretary and the 
     Administrator can issue and enforce subpoenas, relying on the 
     authorities of the FTC Act.108 Issuance. The power 
     of the Secretary and the Administrator to issue subpoenas 
     under the FLSA may not be delegated.109 
     Enforcement. The FLSA authorizes the Secretary and the 
     Administrator to invoke the aid of Federal courts to enforce 
     subpoenas,110 and such civil litigation on behalf 
     of the Department is handled by the Solicitor of Labor and 
     the Regional Solicitors.
       3. Conciliation. Unlike Title VII, the FLSA does not 
     require ``reasonable cause'' determinations or conciliation. 
     In practice, where the violation appears to be minor and to 
     involve only a single individual, the investigator will ask 
     the employee for permission to use of his or her name and 
     will then telephone the employer to ask for a response to the 
     charge, and, if there appears to be a violation, will close 
     the matter upon the payment of back wages.111
       4. Prosecutory authority.
       Civil proceedings. Generally. The Secretary has the 
     authority to prosecute alleged FLSA violations in district 
     court.112 The Solicitor of Labor and Regional 
     Solicitors are responsible for bringing litigation on behalf 
     of the Administrator. Remedies. The agency may seek: (i) 
     unpaid minimum wages or overtime compensation and liquidated 
     damages owing to an employee, (ii) civil penalties, and (iii) 
     an order restraining violations, including an order to pay 
     compensation due.113
       Relation with private right of action. Unlike the 
     discrimination laws, the FLSA does not require an individual 
     to first file a charge with the agency and await conciliation 
     efforts before bringing a civil action.114 
     However, if the Labor Department first commences suit on the 
     individual's behalf, the individual's right to bring suit 
     terminates.115
       Administrative assessment of civil penalties; criminal 
     proceedings. Civil penalties for repeated or willful 
     violations or for child labor violations are assessed 
     initially by the Secretary, and, if the respondent takes 
     exception, are decided through adjudication before an ALJ, 
     subject to appeal to the Labor Secretary and judicial review 
     in federal district court.116 The FLSA also 
     imposes fines and imprisonment for willful 
     violations.117
       5. Advisory opinions. The Portal-to-Portal Act establishes 
     a defense for good-faith reliance on the ``written 
     administrative regulation, order, ruling, approval, or 
     interpretation'' of the Administrator.118 The 
     Administrator has issued interpretative bulletins and 
     advisory opinions ``to indicate the construction of the law 
     which will guide the Administrator in the performance of his 
     administrative duties.'' 119
       6. Recordkeeping/reporting. The FLSA requires every 
     employer to make and preserve such records, and ``to make 
     such reports therefrom,'' as the Wage and Hour Administrator 
     shall prescribe ``by regulation or order.'' 120 
     Recordkeeping. Labor Department regulations specify the 
     ``payroll'' and other records that employers must maintain 
     and preserve for at least 3 years and the ``employment and 
     earnings'' records that employers must maintain and preserve 
     for at least 2 years.121 Reporting. These 
     regulations also require each employer to make ``such 
     extension, recomputation, or transcription'' of required 
     records, and to submit ``such reports,'' as the Administrator 
     may ``request in writing.'' 122


               EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988

       The enforcement regime under the EPPA is similar to that 
     under the FLSA in some respects, and in other respects is sui 
     generis.
       1. Initiation of investigation. Individual complaints. Like 
     the FLSA and unlike Title VII, the EPPA does not specifically 
     require the investigation of individual complaints. However, 
     the Labor Secretary's regulations provide that the Wage and 
     Hour Division will receive reports of violations from any 
     person.123 Directed investigations. Like the FLSA 
     and unlike Title VII, the EPPA authorizes the Labor 
     Department to conduct directed investigations without formal 
     approval by the head of the agency.124
       2. Investigatory powers.
       On-site investigation. The EPPA authorizes the Secretary to 
     make ``necessary or appropriate'' investigations and 
     inspections.125
       Subpoenas. Under the EPPA, as under the FLSA, the Secretary 
     can issue and enforce subpoenas, relying on the authorities 
     of the FTC Act.126 The EPPA authorizes the 
     Secretary to invoke the aid of Federal courts to enforce 
     subpoenas,127 and civil litigation on behalf of 
     the Department is handled by the Solicitor of 
     Labor.128
       3. Conciliation. Like the FLSA and unlike Title VII, the 
     EPPA does not require ``reasonable cause'' determinations or 
     conciliation.
       4. Prosecutory authority.
       Civil proceedings. Generally. The EPPA authorizes the Labor 
     Secretary to prosecute in alleged EPPA violations in district 
     court.129 The Solicitor of Labor may represent the 
     Secretary in such litigation.130 Remedies. The 
     agency may seek temporary or permanent restraining orders and 
     injunctions to require compliance, including incidental 
     relief such as reinstatement and back pay and 
     benefits.131
       Relation with private right of action. Unlike the 
     discrimination laws, and like the FLSA, the EPPA does not 
     require an individual to first file a charge with the agency 
     and await conciliation efforts before bringing a civil 
     action.132 However, unlike both the discrimination 
     laws and the FLSA, the EPPA does not state that the 
     individual's right to bring suit to terminates upon the 
     filing of an enforcement action by the 
     Secretary.133
       Administrative assessment of civil penalties. Civil 
     penalties for violations are assessed initially by the 
     Secretary. Applying the procedures of the Migrant and 
     Seasonal Agricultural Worker Protection Act, the EPPA 
     provides that, if the respondent takes exception, the 
     validity of the assessment is decided through adjudication 
     before an ALJ, who renders an initial decision subject to 
     modification by the Labor Secretary, and subject to judicial 
     review in federal district court.134
       5. Advisory opinions. Unlike both Title VII and the FLSA, 
     the EPPA establishes no defense for good-faith reliance on 
     agency advisory opinions, and the Labor Secretary's EPPA 
     regulations contain neither EPPA interpretations or opinions 
     designated as such nor procedures for requesting 
     interpretations or opinions. However, the regulations contain 
     provisions that the Secretary characterized as 
     ``interpretations regarding the effect of . . . the Act on 
     other laws and collective bargaining 
     agreements.''135
       6. Recordkeeping/reporting. Recordkeeping. The EPPA 
     requires the keeping of records ``necessary or appropriate 
     for the administration'' of the EPPA.136 Labor 
     Department regulations specify the records regarding any 
     polygraph use that employers and examiners must maintain and 
     preserved for 3 years.137 Reporting. The EPPA and 
     Labor Department regulations do not impose any reporting 
     requirements.


           WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT

       The WARN Act establishes no agency investigative or 
     enforcement authority, and is enforced solely through the 
     private right of action.
       1. Initiation of investigation. None.
       2. Investigatory powers. None.
       3. Conciliation. The WARN Act makes no provision for 
     conciliation.
       4. Prosecutory authority. None.
       5. Advisory opinions. The WARN Act makes no provision for 
     advisory opinions.
       6. Recordkeeping/reporting. None.


   UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994

       1. Initiation of investigation. Individual complaints. When 
     an employee files a complaint with the Secretary of Labor, 
     the Secretary is required to investigate.138 
     Directed investigations. The USERRA does not authorize 
     investigations without an employee complaint.
       2. Investigatory powers.
       On-site investigation. In connection with the investigation 
     of any complaint, USERRA authorizes the Secretary's ``duly 
     authorized representatives'' to interview witnesses and to 
     examine and copy any relevant documents.139
       Subpoenas. Issuance. The Secretary can issue subpoenas 
     under the USERRA.140 Enforcement. The USERRA 
     authorizes the Attorney General, upon the request of the 
     Secretary, to invoke the aid of Federal courts to enforce 
     subpoenas.141
       3. Finding that violation occurred; conciliation. If the 
     Secretary determines that the action alleged in a complaint 
     occurred, the USERRA requires the Secretary to ``attempt to 
     resolve the complaint by making reasonable efforts to 
     ensure'' compliance.142 If the Secretary is unable 
     to resolve the complaint in this manner, the Secretary shall 
     so notify the complaining employee.143
       4. Prosecutory authority.
       Civil proceedings. Generally. A complaining employee who 
     receives notification that the Secretary could not resolve 
     the complaint may ask the Secretary to refer the matter to 
     the Attorney General, who, if reasonably satisfied that the 
     complaint is meritorious, may prosecute the alleged USERRA 
     violation in district court on behalf of the 
     employee.144 Remedies. The Attorney General may 
     seek the same remedies as a private individual under USERRA: 
     injunctions and orders requiring compliance, compensation for 
     lost wages and benefits, and, for willful violations, 
     liquidated damages.145
       Relation with private right of action. Unlike the 
     discrimination laws, the USERRA does not require an employee 
     to first file an administrative complaint and await 
     conciliation efforts before bringing a civil 
     action.146 If the employee does choose to file an 
     administrative complaint, the employee may sue upon 
     notification that the Secretary could not resolve the 
     complaint informally, and may sue as well if the employee 
     asks the Attorney General to take the case but the Attorney 
     General declines.147 If the employee asks the 
     Attorney General to pursue the case and the Attorney General 
     does so, the individual may not also pursue a private action.
       5. Advisory opinions. The USERRA establishes no defense for 
     good-faith reliance on agency advisory opinions, and the 
     Labor Secretary has not promulgated in the Federal Register 
     any interpretations or opinions designated as such nor 
     procedures for requesting interpretations or opinions.
       6. Recordkeeping/reporting. The USERRA imposes no 
     recordkeeping or reporting requirements.

[[Page 1580]]




                                ENDNOTES

     Notes regarding table 1--title VII & ADA (title I)
     \1\ Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying 
     the powers, remedies, and procedures of Sec. Sec. 705-707, 
     709, and 710 of Title VII, 42 U.S.C. Sec. Sec. 2000e-4, 
     2000e-5, 2000e-6, 2000e-8, and 2000e-9).
     \2\ Sec. 706(b) of Title VII, 42 U.S.C. Sec. 2000e-5(b).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \3\ Sec. 706(b) of Title VII, 42 U.S.C. Sec. 2000e-5(b).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \4\ Sec. 709(a) of Title VII, 42 U.S.C. Sec. 2000e-8(a).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \5\ 1 EEOC Compliance Manual, Vol. 1--Investigative 
     Procedures Sec. 25.1 (BNA) 25:0001 (6/87).
     \6\ Sec. 710 of Title VII, 42 U.S.C. Sec. 2000e-9 (applying 
     authorities under Sec. 11 of the NLRA, including paragraph 
     (1) thereof, 29 U.S.C. Sec. 161(1)).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \7\ 29 C.F.R. Sec. 1601.16(a).
     \8\ 29 C.F.R. Sec. 1601.16(b).
     \9\ Sec. 710 of Title VII, 42 U.S.C. Sec. 2000e-9 (applying 
     Sec. 11 of the NLRA, including paragraph (2) thereof, 29 
     U.S.C. Sec. 161(2)).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \10\ 29 C.F.R. Sec. 1601.16(d).
     \11\ Sec. 706(b) of Title VII, 42 U.S.C. Sec. 2000e-5(b).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \12\ Sec. 706(f)(1) of Title VII, 42 U.S.C. Sec. 2000e-
     5(f)(1).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \13\ Sec. 706(g)(1) of Title VII, 42 U.S.C. Sec. 2000e-
     5(g)(1).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \14\ 42 U.S.C. Sec. 1981a(a)(1)-(2).
     \15\ Sec. 706(f)(2) of Title VII, 42 U.S.C. Sec. 2000e-
     5(f)(2).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \16\ Sec. 706(f)(1) of Title VII, 42 U.S.C. Sec. 2000e-
     5(f)(1).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     \17\ Sec. 706(f)(1) of Title VII, 42 U.S.C. Sec. 2000e-
     5(f)(1).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     18 Sec. 711(b) of Title VII, 42 U.S.C. Sec. 2000e-
     10(b).
     19 2 EEOC Compliance Manual, Vol. 2--Interpretive 
     Manual Sec. 25.1 (BNA) 632:0019 (1/87).
     20 Sec. 713(b) of Title VII, 42 U.S.C. Sec. 2000e-
     12(b).
     21 29 C.F.R. Sec. 1601.93 et seq.
     22 29 C.F.R. part 1630 Appendix.
     23 Sec. 709(c) of Title VII, 42 U.S.C. Sec. 2000e-
     8(c).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     24 29 C.F.R. Sec. 1602.14.
     25 29 C.F.R. Sec. 1602.12.
     26 29 C.F.R. Sec. 1607.4, 1607.15.
     27 29 C.F.R. Sec. 1602.7.
     28 29 C.F.R. Sec. 1602.11.
     29 Sec. 709(c) of Title VII, 42 U.S.C. Sec. 2000e-
     8(c).
     Sec. 107(a) of the ADA, 42 U.S.C. Sec. 12117(a) (applying the 
     powers, remedies, and procedures of Title VII).
     Notes regarding table 2--ADEA
     30 Reorganization Plan No. 1 of 1978, Sec. 2, set 
     out in 5 U.S.C. Appendix 1.
     31 Sec. 706(b) of Title VII, 42 U.S.C. Sec. 2000e-
     5(b).
     32 EEOC, Priority Charge Handling Procedures (June 
     20, 1995), reprinted in 3 EEOC Compliance Manual (BNA) 
     N.3069, N.3070 (10/95).
     33 Sec. 7(a) of the ADEA, 29 U.S.C. Sec. 626(a) 
     (granting the power to make investigations, in accordance 
     with the powers and procedures provided in Sec. Sec. 9 and 11 
     of the FLSA, 29 U.S.C. Sec. Sec. 209, 211).
     34 Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 
     (referencing Sec. Sec. 9-10 of the Federal Trade Commission 
     Act, 15 U.S.C. Sec. Sec. 49-50.)
     35 Sec. 11(a) of the FLSA, 29 U.S.C. Sec. 211(a) 
     (referenced by Sec. 7(a) of the ADEA, 29 U.S.C. Sec. 626(a)).
     36 Sec. 7(a) of the ADEA, 29 U.S.C. Sec. 626(a) 
     (applying powers of Sec. 9 of the FLSA, 29 U.S.C. Sec. 209, 
     which applies powers of Sec. 9 of the FTC Act, 15 U.S.C. 
     Sec. 49).
     37 29 C.F.R. Sec. 1626.16(b) (citing general 
     authority to delegate under Sec. 6(a) of the ADEA, 29 U.S.C. 
     Sec. 625(a)).
     38 29 C.F.R. Sec. 1626.16(c).
     39 Sec. 7(a) of the ADEA, 29 U.S.C. Sec. 626(a) 
     (applying powers of Sec. 9 of the FLSA, 29 U.S.C. Sec. 209, 
     which applies powers of Sec. Sec. 9-10 of the FTC Act, 15 
     U.S.C. Sec. Sec. 49-50).
     40 1 EEOC Compliance Manual, Vol. 1--Investigative 
     Procedures Sec. 24.13 (BNA) 24:0009 (2/88).
     41 Sec. 7(b) of the ADEA, 29 U.S.C. Sec. 626(b).
     42 29 C.F.R. Sec. 1626.15(b).
     43 Sec. 7(b) of the ADEA, 29 U.S.C. Sec. 626(b).
     44 Id.
     45 Sec. 7(d) of the ADEA, 29 U.S.C. Sec. 626(d).
     46 Sec. 7(e) of the ADEA, 29 U.S.C. Sec. 626(e).
     47 See Crossman v. Crosson, 905 F.Supp. 90, 93 n.1 
     (E.D.N.Y. 1995), aff'd on other grounds, 101 F.3d 684 (2nd 
     Cir. 1996).
     48 Sec. 7(c)(1) of the ADEA, 29 U.S.C. 
     Sec. 626(c)(1).
     49 See I Lindemann & Grossman, Employment 
     Discrimination Law 574 (3d ed. 1996).
     50 Sec. 7(e) of the ADEA, 29 U.S.C. Sec. 626(e), 
     referencing Sec. 10 of the Portal to Portal Act, 29 U.S.C. 
     Sec. 259.
     51 29 C.F.R. Sec. 1626.18.
     52 29 C.F.R. Sec. 1625.1 et seq.
     53 29 C.F.R. Sec. 1627.3(a)-(b).
     54 Sec. 11(c) of the FLSA, 29 U.S.C. Sec. 211(c).
     55 29 C.F.R. Sec. 1627.7.
     Notes regarding table 3--Equal Pay Act
     56 Sec. 6(d) of the FLSA, 29 U.S.C. Sec. 206(d), 
     as added by Pub. L. 88-38, Sec. 3, 77 Stat. 56 (June 10, 
     1963).
     57 Reorganization Plan No. 1 of 1978, Sec. 2, set 
     out in 5 U.S.C. Appendix 1.
     58 EEOC, Priority Charge Handling Procedures (June 
     20, 1995), reprinted in 3 EEOC Compliance Manual (BNA) 
     N.3069, N.3070.
     59 Sec. Sec. 9 and 11 of the FLSA, 29 U.S.C. 
     Sec. Sec. 209, 211.
     60 Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 
     (referencing Sec. Sec. 9-10 of the FTC Act, 15 U.S.C. 
     Sec. Sec. 49-50.)
     61 Sec. 11(a) of the FLSA, 29 U.S.C. Sec. 211(a).
     62 Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 
     (referencing Sec. Sec. 9-10 of the Federal Trade Commission 
     (``FTC'') Act, 15 U.S.C. Sec. Sec. 49-50.)
     63 See Cudahy Packing Co. of Louisiana, Ltd., v. 
     Holland, 315 U.S. 357 (1942).
     64 29 C.F.R. Sec. 1620.31.
     65 Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 
     (applying the powers of Sec. Sec. 9-10 of the FTC Act, 15 
     U.S.C. Sec. Sec. 49-50.)
     66 1 EEOC Compliance Manual, Vol. 1--Investigative 
     Procedures Sec. 24.13 (BNA) 24:0009 (2/88).
     67 1 EEOC Compliance Manual, Vol. 1--Investigative 
     Procedures Sec. 40.1 (BNA) 40:0001 (2/88).
     68 1 EEOC Compliance Manual, Vol. 1--Investigative 
     Procedures Sec. 60.3(c) (BNA) 60:0001-60:0002 (2/88).
     69 Sec. 16(c), (e)(2), 17 of the FLSA, 29 U.S.C. 
     Sec. Sec. 216(c), (e)(2), 217.
     70 Id.
     71 Sec. 16(b) of the FLSA, 29 U.S.C. Sec. 216(b).
     72 Id.
     73 Sec. 10 of the Portal-to-Portal Act, 29 U.S.C. 
     Sec. 259.
     74 29 C.F.R. Sec. 1621.4.
     75 Sec. 11(c) of the FLSA, 29 U.S.C. Sec. 211(c).
     \76\ 29 C.F.R. Sec. 1620.32 (adopting by reference the Labor 
     Department's regulations at 29 C.F.R. part 516).
     \77\ 29 C.F.R. Sec. 1620.32 (b)-(c).
     \78\ 29 C.F.R. Sec. 516.8.
     Notes regarding table 4--FMLA
     \79\ Sec. 106(a)-(b), (d) of the FMLA, 29 U.S.C. 
     Sec. 2616(a)-(b), (d) (referencing the investigatory 
     authority of Sec. 11(a), the recordkeeping requirements of 
     Sec. 11(c), and the subpoena authority of Sec. 9 of the FLSA, 
     29 U.S.C. Sec. Sec. 209, 211(a), (c)).
     \80\ Sec. 107 of the FMLA, 29 U.S.C. Sec. 2617.
     \81\ Sec. 107(b)(1) of the FMLA, 29 U.S.C. Sec. 2617(b)(1).
     \82\ See Schneider & Stine, Wage & Hour Law: Compliance and 
     Practice (Clark, Boardman, Callaghan, 1995), Sec. 19:02.
     \83\ Sec. 106(a) of the FMLA, 29 U.S.C. Sec. 2616(a) 
     (referencing investigatory authority of Sec. 11(a), of the 
     FLSA, 29 U.S.C. Sec. 211(a)).
     \84\ See Schneider & Stine, Wage & Hour Law: Compliance and 
     Practice (Clark, Boardman, Callaghan, 1995), Sec. 19:02.
     \85\ Sec. 106(a) of the FMLA, 29 U.S.C. Sec. 2616(a).
     \86\ See Sec. 11(a) of the FLSA, 29 U.S.C. Sec. 211(a).
     \87\ See Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 (referencing 
     Sec. Sec. 9-10 of the Federal Trade Commission (``FTC'') Act, 
     15 U.S.C. Sec. Sec. 49-50.)
     \88\ See Cudahy Packing Co. of Louisiana, Ltd., v. Holland, 
     315 U.S. 357 (1942).
     \89\ See Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 (applying the 
     powers of Sec. Sec. 9-10 of the FTC Act, 15 U.S.C. 
     Sec. Sec. 49-50.)
     \90\ See State and Federal Wage and Hour Compliance Guide, 
     supra, para. 10.02[2][b], at 10-6.
     \91\ Sec. 107(b)(2)-(3), (d) of the FMLA, 29 U.S.C. 
     Sec. 2617(b)(2)-(3), (d).
     \92\ Sec. 107(e) of the FMLA, 29 U.S.C. Sec. 2617(e).
     \93\ Sec. 107(b)(2)-(3), (d) of the FMLA, 29 U.S.C. 
     Sec. 2617(b)(2)-(3), (d).
     \94\ Sec. 107(a) of the FMLA, 29 U.S.C. Sec. 2617(a).
     \95\ Sec. 107(a)(4) of the FMLA, 29 U.S.C. Sec. 2617(a)(4).
     \96\ Sec. 109(b) of the FMLA, 29 U.S.C. Sec. 2619(b).
     \97\ 29 C.F.R. Sec. Sec. 825.402-825.404.
     \98\ Sec. 107(a)(1)(A)(iii) of the FMLA, 29 U.S.C. 
     Sec. 2617(a)(1)(A)(iii).
     \99\ Sec. 106(b) of the FMLA, 29 U.S.C. Sec. 2616(b).
     \100\ 29 C.F.R. Sec. 825.500.
     \101\ Sec. 106(b) of the FMLA, 29 U.S.C. Sec. 2616(b) 
     (referencing Sec. 11(c) of the FLSA, 29 U.S.C. Sec. 211(c)).
     \102\ See Sec. 106(c) of the FMLA, 29 U.S.C. Sec. 2616(c).
     \103\ 29 C.F.R. Sec. 825.500(a)-(b).
     Notes regarding table 5--FLSA
     \104\ See Schneider & Stine, Wage & Hour Law: Compliance and 
     Practice (Clark, Boardman, Callaghan, 1995), Sec. 19:02.
     \105\ See id.
     \106\ See State and Federal Wage and Hour Compliance Guide 
     (Warren, Gorham & Lamont, 1996), para. 10.02[1][d], page 10-
     5.
     \107\ Sec. 11(a) of the FLSA, 29 U.S.C. Sec. 211(a).
     \108\ Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 (referencing 
     Sec. Sec. 9-10 of the Federal Trade Commission (``FTC'') Act, 
     15 U.S.C. Sec. Sec. 49-50.)
     \109\ See Cudahy Packing Co. of Louisiana, Ltd., v. Holland, 
     315 U.S. 357 (1942).
     \110\ Sec. 9 of the FLSA, 29 U.S.C. Sec. 209 (applying the 
     powers of Sec. Sec. 9-10 of the FTC Act, 15 U.S.C. 
     Sec. Sec. 49-50.)
     \111\ See State and Federal Wage and Hour Compliance Guide, 
     supra, para. 10.02[2][b], at 10-6.
     \112\ Sec. Sec. 16(c), (e)(2), 17 of the FLSA, 29 U.S.C. 
     Sec. Sec. 216(c), (e)(2), 217.
     \113\ Id.
     \114\ Sec. 16(b) of the FLSA, 29 U.S.C. Sec. 216(b).
     \115\ Id.
     \116\ Sec. 16(e) of the FLSA, 29 U.S.C. Sec. 216(e); 29 
     C.F.R. Sec. 580.13; 5 U.S.C. Sec. Sec. 701-706.
     \117\ Sec. 16(a) of the FLSA, 29 U.S.C. Sec. 216(a).
     \118\ Sec. 10 of the PPA, 29 U.S.C. Sec. 259.
     \119\ 29 C.F.R. Sec. 775.1.
     \120\ Sec. 11(c) of the FLSA, 29 U.S.C. Sec. 211(c).
     \121\ 29 C.F.R. Sec. Sec. 516.5--516.7.
     \122\ 29 C.F.R. Sec. 516.8.
     Notes regarding table 6--EPPA
     \123\ 29 C.F.R. Sec. 801.7(d).
     \124\ Sec. 5(a)(3) of the EPPA, 29 U.S.C. Sec. 2004(a)(3).
     \125\ Id.
     \126\ Sec. 5(b) of the EPPA, 29 U.S.C. Sec. 2004(b) (applying 
     the powers of Sec. Sec. 9-10 of the FTC Act, 15 U.S.C. 
     Sec. Sec. 49-50.).
     \127\ Id.
     \128\ Sec. 6(b) of the EPPA, 29 U.S.C. Sec. 2005(b).
     \129\ Id.
     \130\ Id.
     \131\ Id.
     \132\ Sec. 6(c) of the EPPA, 29 U.S.C. Sec. 2005(c).
     \133\ Id.
     134 Sec. 6(a) of the EPPA, 29 U.S.C. Sec. 2005(a) 
     (referencing penalty collection procedures of the Migrant and 
     Seasonal Agricultural Worker Protection Act, 29 U.S.C. 
     Sec. 1853(b)-(e)); 5 U.S.C. Sec. Sec. 701-706.
     135 29 C.F.R. Sec. 801.1(b).
     136 Sec. 5(a)(3) of the EPPA, 29 U.S.C. 
     Sec. 2004(a)(3).
     137 29 C.F.R. Sec. 801.30.
     Notes regarding table 8--USERRA
     138 38 U.S.C. Sec. 4322(a)-(d).
     139 38 U.S.C. Sec. 4326(a).
     140 38 U.S.C. Sec. 4326(b).
     141 38 U.S.C. Sec. 4326(b)-(c).
     142 38 U.S.C. Sec. 4322(d).
     143 38 U.S.C. Sec. 4322(e).
     144 38 U.S.C. Sec. 4323(a)(1).
     145 38 U.S.C. Sec. 4323(c)(1).
     146 38 U.S.C. Sec. 4323(a)(2)(A).
     147 38 U.S.C. Sec. 4323(a)(2)(B)-(C).

Appendix III--Comparison of Options: Placing GAO, GPO, and the Library 
Under CAA Coverage, Federal-Sector Coverage, or Private-Sector Coverage

       The tables in this Appendix detail the principal 
     differences among the three options for coverage of GAO, GPO, 
     and the Library analyzed in Part III of this Report:
       (1) CAA Option--Coverage under the CAA, including the 
     authority of the Office of Compliance as it administers and 
     enforces the CAA. (The Board takes as its model the CAA as it 
     would be modified by enactment of the recommendations made in 
     Part II of this Report.)
       (2) Federal-Sector Option--Coverage under the statutory and 
     regulatory regime that applies generally in the federal 
     sector, including the authority of executive-branch agencies 
     as they administer and enforce those laws in the federal 
     sector.

[[Page 1581]]

       (3) Private-Sector Option--Coverage under the statutory and 
     regulatory regimes that apply generally in the private 
     sector, including the authority of the executive-branch 
     agencies as they administer and enforce those laws in the 
     private sector.
       To make these comparisons, the tables use four side-by-side 
     columns. The first column shows the current regime at each 
     instrumentality, described in four categories: (a) 
     substantive rights, (b) administrative processes, (c) 
     judicial procedures, and (d) substantive rulemaking 
     processes, if any. The other three columns compare the 
     current regime with the CAA option, the federal-sector 
     option, and the private-sector option.
       Items in the charts are marked with the following codes:
       ``='' indicates rights and procedures now applicable at the 
     instrumentality that would remain substantially the same if 
     alternative provisions were applied.
       ``+'' indicates rights and procedures not now applicable at 
     the instrumentality that would apply if alternative 
     provisions were applied.
       ``-'' indicates rights and procedures now applicable at the 
     instrumentality that would no longer apply if alternative 
     provisions were applied.
       ``'' indicates other changes in rights and procedures that 
     would result if alternative provisions were applied.
       ``{  '' indicates the amendments to the CAA proposed in the 
     Board's three specific recommendations set forth in Part II 
     of this Report, which are--
       (1) Grant the Office the authority to investigate and 
     prosecute violations of section 207 of the CAA, which 
     prohibits intimidation and reprisal. (2) Clarify that section 
     215(b) of the CAA, which makes applicable the remedies set 
     forth in section 13(a) of the OSHAct, gives the General 
     Counsel the authority to seek a restraining order in district 
     court in case of imminent danger to health or safety. (3) 
     Make applicable the record-keeping and notice-posting 
     requirements of the private-sector CAA laws.\1\
---------------------------------------------------------------------------
     \1\ In Part II of the Report, in addition to these three 
     specific recommendations, the Board also made two general 
     recommendations, see Sections B.4 and B.5 of Part II, which 
     are not described in the tables in this Appendix. Also not 
     described in the tables are: the modifications that Members 
     Adler and Seitz believe should be made to the CAA, as applied 
     to GAO GPO, and the Library, in order to preserve certain 
     rights now applicable at those instrumentalities, see Section 
     D.2 of Part III of this Report; and the recommendations made 
     in Part I of the Report, see Sections C.1, C.2.(b), D.1.(b), 
     and D.2.(b) of Part I of the Report.
---------------------------------------------------------------------------
       The comparisons in these tables address the substantive 
     rights afforded by the CAA or by the provisions of CAA laws 
     \2\ and other analogous provisions that apply to federal-
     sector employers, private-sector employers, or the three 
     instrumentalities. Furthermore, in defining coverage under 
     each option, the Board decided that the application of the 
     CAA or of analogous federal-sector or private-sector 
     provisions should supersede existing provisions affording 
     substantially similar substantive rights or establishing 
     processes and procedures to implement, remedy, or enforce 
     such rights. Applicable provisions affording substantive 
     rights having no analogue in the CAA, and processes to 
     implement, remedy, or enforce such rights, would not be 
     affected by the coverage described in the three options.
---------------------------------------------------------------------------
     \2\ The term ``CAA laws'' refers to the eleven laws, 
     applicable in the federal and private sectors, made 
     applicable to the legislative branch by the CAA. The nine 
     private-sector CAA laws are: the Fair Labor Standards Act of 
     1938 (29 U.S.C. Sec. 201 et seq.) (``FLSA''), Title VII of 
     the Civil Rights Act of 1964 (42 U.S.C. Sec. 2000e et seq.) 
     (``Title VII''), the Americans with Disabilities Act of 1990 
     (42 U.S.C. Sec. 12101 et seq.) (``ADA''), the Age 
     Discrimination in Employment Act of 1967 (29 U.S.C. Sec. 621 
     et seq.) (``ADEA''), the Family and Medical Leave Act of 1993 
     (29 U.S.C. Sec. 2611 et seq.) (``FMLA''), the Occupational 
     Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq.) 
     (``OSHAct''), the Employee Polygraph Protection Act of 1988 
     (29 U.S.C. Sec. 2001 et seq.) (``EPPA''), the Worker 
     Adjustment and Retraining Notification Act (29 U.S.C. 
     Sec. 2101 et seq.) (``WARN Act''), and section 2 of the 
     Uniformed Services Employment and Reemployment Rights Act of 
     1994 (``USERRA''). The two federal-sector CAA laws are: 
     Chapter 71 of title 5, United States Code (relating to 
     federal service labor-management relations) (``Chapter 71''), 
     and the Rehabilitation Act of 1973 (29 U.S.C. Sec. 701 et 
     seq.).

                   APPENDIX III, TABLE 1.--GENERAL ACCOUNTING OFFICE: TITLE VII, ADEA, AND EPA
----------------------------------------------------------------------------------------------------------------
                                                            --Compared to Federal-      --Compared to Private-
       Current Regime         --Compared to CAA Coverage        Sector Coverage             Sector Coverage
----------------------------------------------------------------------------------------------------------------
                                               SUBSTANTIVE RIGHTS
 
Federal-sector provisions    =Substantive rights under    =Substantive rights under   =Substantive rights under
 of Title VII (Sec.  717)     the CAA are generally the    federal-sector provisions   private-sector provisions
 and the ADEA (Sec.  15),     same as those at GAO.        are generally the same as   are generally the same as
 as well as the EPA, apply                                 those at GAO.               those at GAO.
 to GAO.
 
                                            ADMINISTRATIVE PROCESSES
 
GAO management investigates  +Use of model ADR process    =The processes at GAO are   +The EEOC investigates and
 and decides complaints       under CAA is prerequisite    modeled generally on        prosecutes in the private
 initially.                   to proceeding with           those in the federal        sector. GAO now does this
GAO employees may appeal to   complaint.                   sector.                     through the PAB; see
 the PAB, where the PAB      +Administrative processes    +EEOC, MSPB, and Special     earlier reference to the
 General Counsel may          are more streamlined under   Counsel hear appeals and    institutional structure
 investigate and prosecute    the CAA.                     prosecute violations in     of the PAB within GAO.
 the action on behalf of     +The OC would adjudicate      the federal sector. GAO    -The EEOC may be unable to
 employees.                   claims and appeals. GAO      now does this through the   provide timely
GAO must maintain claims-     now does this through the    PAB; see earlier            investigation of all
 resolution and affirmative-  PAB; see earlier reference   reference to the            individual charges.
 employment programs, which   to the institutional         institutional structure    -Private-sector provisions
 the PAB evaluates.           structure of the PAB         of the PAB within GAO.      do not provide for
PAB is administratively       within GAO (in ``current    +GAO would be required to    administrative
 part of GAO. Its Members     regime'' column).            follow EEOC regulations     adjudication and appeal.
 are appointed by the        -The CAA does not provide     governing agencies'        Employers in the private
 Comptroller General          for investigation and        internal claims-            sector are not required
 (``CG''); and its General    prosecution, which GAO and   resolution procedures and   to have claims-resolution
 Counsel is selected by,      the PAB now conduct, {but    affirmative-employment      or affirmative-employment
 and serves at the pleasure   should do so as to           programs.                   programs.
 of, the PAB Chair, but is    retaliation