[Congressional Record (Bound Edition), Volume 147 (2001), Part 1]
[Senate]
[Pages 685-688]
[From the U.S. Government Publishing Office, www.gpo.gov]



                OFFICE OF COMPLIANCE REPORT TO CONGRESS

  Mr. THURMOND. Mr. President, pursuant to Section 102(b) of the 
Congressional Accountability Act of 1995 (2 U.S.C. sec. 1302(b)), the 
Board of Directors of the Office of Compliance have submitted a report 
to Congress. This document, dated December 31, 2000 is titled a 
``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.''
  Section 102(b) requires this report to be printed in the 
Congressional Record, and referred to committees with jurisdiction. 
Therefore, I ask unanimous consent that the report be printed in the 
Record and that the report be appropriately referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 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, 2000)

       Section 102(a) of the Congressional Accountability Act 
     (CAA) lists the eleven laws that, ``shall apply, as 
     prescribed by this Act, to the legislative branch of the 
     Federal Government.'' 1 Section 102(b) directs the 
     Board of Directors (Board) of the Office of Compliance 
     (Office) 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, ``[b]eginning 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.''


                             I. Background

       In December of 1996, the Board completed its first biennial 
     report mandated under section 102(b) of the CAA (1996 Section 
     102(b) Report or 1996 Report).2 In that Report the 
     Board reviewed and analyzed the universe of federal law 
     relating to labor, employment and public access, made initial 
     recommendations, and set priorities for future reports. To 
     conduct its analysis, the Board organized the provisions of 
     federal law according to the kinds of entities to which they 
     applied, and systematically analyzed whether and to what 
     extent they were already applied to the legislative branch or 
     whether the legislative branch was already covered by other 
     comparable legislation. This analysis generated four 
     comprehensive tables of laws which were categorized as: (1) 
     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; 
     (2) 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; (3) 
     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 and; (4) private-sector 
     laws which do not apply or have only very limited application 
     in the legislative branch.

[[Page 686]]

       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. 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 the 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 also determined in its 1996 Section 102(b) Report 
     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 nine private-
     sector laws generally made applicable by the CAA. In December 
     1998 the Board set forth the results of that review in its 
     second biennial report under Section 102(b) of the CAA (1998 
     Section 102(b) Report or 1998 Report).3
       The 1998 Section 102(b) Report was divided into three 
     parts. In Part I the Board reviewed laws enacted after the 
     1996 Section 102(b) Report, resubmitted the recommendations 
     made in its 1996 Report, and made additional recommendations 
     as to laws which should be made applicable to the legislative 
     branch. In Part II the Board analyzed which provisions of the 
     private-sector CAA laws do not apply to the legislative 
     branch and recommended which should be made applicable. In 
     Part III of the 1998 Report, although not required by section 
     102(b) of the CAA, the Board reviewed coverage of the General 
     Accounting Office (GAO), the Government Printing Office (GPO) 
     and the Library of Congress (the Library) under the laws made 
     applicable by the CAA and made recommendations to Congress 
     with respect to changing that coverage. The Board noted that 
     the study mandated by Section 230 of the CAA which was 
     submitted to Congress in 1996 4 did not include 
     recommendations to Congress with respect to coverage of these 
     three instrumentalities.5 The Board concluded that 
     the 1998 Section 102(b) Report, which focused on omissions in 
     coverage of the legislative branch under the laws generally 
     made applicable by the CAA, provided the opportunity for the 
     Board to make recommendations to Congress regarding coverage 
     of GAO, GPO and the Library under those laws.6 As 
     discussed in Section IV.C below, the Board Members identified 
     three principal options for Congress to consider but were 
     divided in their recommendation as to which option was 
     preferable.
       In the preparation of this 2000 Section 102(b) Report, the 
     third biennial report issued under section 102(b) of the CAA, 
     the Board has reviewed new statutes or statutory amendments 
     enacted after the Board's 1998 Section 102(b) Report was 
     prepared. The Board has also reviewed the Section 102(b) 
     reports issued in 1996 and 1998 and the analysis and 
     recommendations contained therein.


    II. Review of Laws Enacted after the 1998 Section 102(b) Report

       After reviewing all federal laws and amendments relating to 
     terms and conditions of employment or access to public 
     accommodations and services passed since October 1998, the 
     Board concludes that there are no new provisions of law which 
     should be made applicable to the legislative branch. As in 
     the two previous Section 102(b) reports, the Board excluded 
     from consideration 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 fire protection activities, or the armed 
     forces); (2) established 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 health care research); 
     (3) authorize, but do not require, that employers provide 
     benefits to employees, (e.g., so-called ``cafeteria plans''); 
     or (4) are not applicable to public sector employment (e.g., 
     an amendment clarifying the treatment of stock options under 
     the FLSA).


                    III. 1996 Section 102(b) Report

       In preparation for the first Section 102(b) Report, as 
     noted earlier, the Board reviewed the entire United States 
     Code to identify laws and associated regulations of general 
     application that relate to terms and conditions of employment 
     or access to public services and accommodations. Noting the 
     underlying priorities of the Act itself, the Board chose to 
     focus its 1996 Report on the identified provisions of law 
     generally applicable in the private sector for which there 
     was no similar coverage in the legislative branch. The Board 
     has reviewed the 1996 Section 102(b) Report and the 
     recommendations contained therein, as well as the additional 
     discussion of those recommendations found in the 1998 Section 
     102(b) Report.
       The Board of Directors again submits the following 
     recommendations which were made in the 1996 Section 102(b) 
     Report and resubmitted in the 1998 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. The provision currently does 
     not apply to the legislative branch. For the reasons 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 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 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 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 
     such 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 the legislative branch.


                     IV. 1998 Section 102(b) Report

     A. Part I of the 1998 Report (new laws enacted and certain 
         other inapplicable laws)
       In the first part of the 1998 Section 102(b) Report, the 
     Board noted the enactment of two new employment laws and 
     concluded that no further action was needed because 
     substantial provisions of each had been made applicable to 
     the legislative branch. Next, as noted above, the Board 
     discussed and resubmitted the recommendations made in the 
     1996 Section 102(b) Report. In addition, the Board made three 
     new recommendations, one based upon further review and 
     analysis of statutes discussed in the 1996 Section 102(b) 
     Report and two others based upon experience gained by the 
     Board in the administration and enforcement of the CAA.
       The Board of Directors resubmits the three new 
     recommendations made in Part I of the 1998 Section 102(b) 
     Report:
       (1) Employee protection provisions of 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).--These provisions generally protect an employee from 
     discrimination in employment because the employee commences 
     proceedings under 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. For the reasons stated in the 1998 Section 
     102(b) Report, the Board believes that these provisions are 
     applicable to the legislative branch. However, because it is 
     possible to construe certain of these provisions as 
     inapplicable, the Board has concluded that legislation should 
     be adopted clarifying that the employee protection provisions 
     in the environmental protection statutes apply to all 
     entities within the legislative branch.
       (2) Employee ``whistleblower'' protection.--Civil service 
     law 7 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. The Office has continued to receive a number of 
     inquiries from legislative branch employees concerned about 
     protection against possible retaliation by an employing 
     office for

[[Page 687]]

     the disclosure of what the employee perceives to be such 
     information. For the reasons set forth in the 1998 Section 
     102(b) Report, the Board has determined that whistleblower 
     protection comparable to that provided to executive branch 
     employees under 5 U.S.C. Sec. 2302(b)(8) should be provided 
     to legislative branch employees.
       (3) Coverage of special-purpose study commissions.--Certain 
     special-purpose study commissions that include members 
     appointed by Congress or by officers of Congressional 
     instrumentalities are not expressly listed in section 101(9) 
     of the CAA in the definition of ``employing offices'' covered 
     under the CAA. For the reasons set forth in the 1998 Section 
     102(b) Report, the Board recommends that Congress 
     specifically state whether the CAA applies to special-purpose 
     study commissions, both when it creates such commissions and 
     for those already in existence.
     B. Part II of the 1998 Report (inapplicable private-sector 
         provisions of CAA laws)
       In the second part of the 1998 Section 102(b) Report, the 
     Board considered the specific exceptions created by Congress 
     from the nine private-sector laws made applicable by the CAA 
     8 and made a number of recommendations respecting 
     the application of currently inapplicable provisions, 
     ``focusing on enforcement, the area in which Congress made 
     the most significant departures from the private-sector 
     provisions of the CAA laws'.9 The Board noted that 
     it intended that those 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 benefits and burdens as the rest 
     of the nation's citizens''.10
       The Board of Directors has reviewed the 1998 Report and 
     resubmits each of the following recommendations made in Part 
     III of the 1998 Section 102(b) Report:
       (1) Authority to investigate and prosecute violations of 
     Sec. 207 of the Act, which prohibits intimidation and 
     reprisal.--Enforcement authority with respect to intimidation 
     or reprisal is provided to the agencies that administer and 
     enforce the CAA laws 11 in the private sector. For 
     the reasons set forth in the 1998 Report, the Board has 
     concluded that the Congress should grant the Office the same 
     authority to investigate and prosecute allegations of 
     intimidation or reprisal as each implementing Executive 
     Branch agency has in the private sector.
       (2) Authority to seek a restraining order in district court 
     in case of imminent danger to health or safety.--Section 
     215(b) of the CAA provides the remedy for a violation of the 
     substantive provisions of the OSHAct made applicable by the 
     CAA. 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, who enforces the OSHAct provisions as made 
     applicable by the CAA, has concluded that Section 215(b) of 
     the CAA gives him the same standing to petition the district 
     court for a temporary restraining order. However, it has been 
     suggested that the language of section 215(b) does not 
     clearly provide that authority. For the reasons set forth in 
     the 1998 Section 102(b) Report, 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.
       (3) Record-keeping and notice-posting requirements.--For 
     the reasons set forth in the 1998 Section 102(b) Report, the 
     Board has concluded that the Office should 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.
       (4) Other enforcement authorities.--For the reasons set 
     forth in the 1998 Section 102(b) Report, the Board generally 
     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.
     C. Part III of the 1998 Report (options for coverage of the 
         three instrumentalities)
       In the third part of the 1998 Report, the Board, building 
     upon its extensive Section 230 Study, exhaustively re-
     examined the current coverage of GAO, GPO and the Library 
     under the CAA laws, and identified and discussed three 
     principal options for coverage of these instrumentalities:
       (A) CAA Option.--Coverage under the CAA, including the 
     authority of the Office of Compliance as it administers and 
     enforces the CAA. (The Board here took as its model the CAA 
     as it would be modified by enactment of the recommendations 
     made in Part II of its 1998 Report.)
       (B) 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.
       (C) 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.
       The Board noted that other hybrid models could be developed 
     or, it could ``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.'' 12
       The Board compared the three options against the current 
     regimes at GAO, GPO and the Library, as well as against each 
     other, and identified the significant effects of applying 
     each option. The Board unanimously concluded that coverage 
     under the private sector model was not the best of the 
     options. However, the Board was divided as to which of the 
     remaining options should be adopted. Two Board Members 
     recommended that the three instrumentalities be covered under 
     the CAA, with certain modifications, and two other Board 
     Members recommended that the three instrumentalities be made 
     fully subject to the laws and regulations generally 
     applicable in the executive branch of the federal sector. 
     13
       A review of the analysis, discussion and recommendations 
     contained in the Section 230 Study and Part III of the 1998 
     Section 102(b) Report demonstrates the complexity of the 
     issues relating to coverage of GAO, GPO and the Library under 
     the CAA laws. The current regime is an exceedingly 
     complicated one, with differences evident both between and 
     among instrumentalities and between and among the eleven CAA 
     laws. Any proposals for changes in existing coverage must not 
     only take into account the existing statutory regime, but 
     also the practical effects of any recommended changes, as 
     well as the mandates of the CAA, including Section 230. 
     Indeed, the degree of the difficulties and challenges 
     encountered in determining how the coverage of the 
     instrumentalities might be modified is evidenced by the fact 
     that after three years of study and experience, the Members 
     of the Board in 1998 were unable to arrive at a consensus on 
     the manner in which the CAA laws should be applied and 
     enforced at GAO, GPO and the Library.
       While the current Board Members are mindful of the 
     institutional benefits of providing Congress with a clear 
     recommendation as to coverage of the instrumentalities, the 
     Board is of the view that further study and consideration of 
     the questions presented is warranted in light of the 
     complexity of the issues and the substantial impact that a 
     modification would have on the instrumentalities and their 
     employees.
       The Board believes that Congress, and the instrumentalities 
     and their employees, would derive greater benefit from a 
     recommendation based upon further study, consideration and 
     experience on the part of Board Members. Therefore, the Board 
     has determined not to make any recommendations with respect 
     to coverage of GAO, GPO and the Library under the CAA laws at 
     this time.


                                ENDNOTES

       1 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.). This 
     report uses the term ``CAA laws'' to refer to these eleven 
     laws.
       2 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).
       3 Section 102(b) Report: 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 (Dec. 31, 1998).
       4 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.'' 
     Originally, the Administrative Conference of the United 
     States was charged with carrying out the study and making 
     recommendations, but when the Conference lost its funding, 
     the responsibility for the study was transferred to the 
     Board.
       5 Section 230 Study: Study of Laws, Regulations, 
     and Procedures at The General Accounting Office, The 
     Government Printing Office and The Library of Congress 
     (December 1996) (Section 230 Study).

[[Page 688]]

       6 The Board also found that resolution of 
     existing uncertainty as to whether GAO, GPO and Library 
     employees alleging violations of sections 204-207 of the CAA 
     may use CAA procedures was an additional reason to include 
     recommendations about coverage.
       7 See, e.g., 5 U.S.C. Sec. 2302(b)(8).
       8 The private-sector laws made applicable by the 
     CAA are listed in note 1, at page 1, above.
       9 1998 Section 102(b) Report at 16.
       10 Id. At 17.
       11 The only exception is the WARN Act which has 
     no such authorities.
       12 1998 Section 102(b) Report at 27.
       13 In December 1998, at the time the 1998 
     Section 102(b) Report issued, there were four Board members; 
     the fifth Board member's term had expired and a new appointee 
     had not yet been named. Since the issuance of the 1998 Report 
     the terms of the four Board members who participated in that 
     Report have expired. At present, the five-Member Board of 
     Directors is again at its full complement; three Members were 
     appointed in October 1999 and two Members were appointed in 
     May 2000.

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