[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2190 Introduced in House (IH)]
<DOC>
116th CONGRESS
1st Session
H. R. 2190
To improve accountability of senior officials and other supervisory
employees of the Department of Labor.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 9, 2019
Mr. Smucker (for himself and Mr. Rooney of Florida) introduced the
following bill; which was referred to the Committee on Education and
Labor, and in addition to the Committee on Oversight and Reform, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To improve accountability of senior officials and other supervisory
employees of the Department of Labor.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) Short Title.--This Act may be cited as the ``Department of
Labor Accountability Act of 2019''.
SEC. 2. SENIOR EXECUTIVES: REMOVAL, DEMOTION, OR SUSPENSION BASED ON
PERFORMANCE OR MISCONDUCT.
(a) Authority.--The Secretary may, as provided in this section,
reprimand or suspend, involuntarily reassign, demote, or remove a
covered employee from a senior executive position at the Department if
the Secretary determines that the misconduct or performance of the
covered employee warrants such action. If the Secretary so removes such
an individual, the Secretary may remove the individual from the civil
service (as defined in section 2101 of title 5, United States Code).
(b) Rights and Procedures.--
(1) Rights.--A covered employee who is the subject of an
action under subsection (a) is entitled to--
(A) advance notice of the action and a file
containing all evidence in support of the proposed
action;
(B) be represented by an attorney or other
representative of the covered employee's choice; and
(C) grieve the action in accordance with an
internal grievance process that the Secretary, in
consultation with the Whistleblower Protection
Ombudsman, shall establish for purposes of this
subsection.
(2) Timing.--
(A) The aggregate period for notice, response, and
decision on an action under subsection (a) may not
exceed 15 business days.
(B) The period for the response of a covered
employee to a notice under paragraph (1)(A) of an
action under subsection (a) shall be 7 business days.
(C) A decision under this paragraph on an action
under subsection (a) shall be issued not later than 15
business days after notice of the action is provided to
the covered individual under paragraph (1)(A). The
decision shall be in writing, and shall include the
specific reasons therefor.
(D) The Secretary shall ensure that the grievance
process established under paragraph (1)(C) takes fewer
than 21 days.
(3) Finality.--A decision under this subsection (a) that is
not grieved, and a grievance decision under paragraph (2)(D),
shall be final and conclusive.
(4) Judicial review.--A covered employee adversely affected
by a decision under subsection (a) that is not grieved, or by a
grievance decision under paragraph (2)(D), may obtain judicial
review of such decision.
(5) Action of the court.--In any case in which judicial
review is sought under paragraph (4), the court shall review
the record and may set aside any Department action found to
be--
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with a provision of law;
(B) obtained without procedures required by a
provision of law having been followed; or
(C) unsupported by substantial evidence.
(c) Relation to Other Provisions of Law.--Section 3592(b)(1) of
title 5, United States Code, and the procedures under section 7543(b)
of such title do not apply to an action under subsection (a).
SEC. 3. EMPLOYEES: REMOVAL, DEMOTION, OR SUSPENSION BASED ON
PERFORMANCE OR MISCONDUCT.
(a) Authority.--The Secretary may remove, demote, or suspend a
covered individual who is an employee of the Department if the
Secretary determines the performance or misconduct of the covered
individual warrants such removal, demotion, or suspension. If the
Secretary so removes, demotes, or suspends such a covered individual,
the Secretary may--
(1) remove the covered individual from the civil service
(as defined in section 2101 of title 5, United States Code);
(2) demote the covered individual by means of a reduction
in grade for which the covered individual is qualified, that
the Secretary determines is appropriate, and that reduces the
annual rate of pay of the covered individual; or
(3) suspend the covered individual.
(b) Pay of Certain Demoted Individuals.--
(1) Notwithstanding any other provision of law, any covered
individual subject to a demotion under subsection (a) shall,
beginning on the date of such demotion, receive the annual rate
of pay applicable to such grade.
(2)(A) A covered individual so demoted may not be placed on
administrative leave during the period during which an appeal
(if any) under this section is ongoing, and may only receive
pay if the covered individual reports for duty or is approved
to use accrued unused annual, sick, family medical, military,
or court leave.
(B) If a covered individual so demoted does not report for
duty or receive approval to use accrued unused leave, such
covered individual shall not receive pay or other benefits
pursuant to subsection (d)(5).
(c) Procedures.--
(1) In general.--(A) The aggregate period for notice,
response, and final decision in a removal, demotion, or
suspension under this section may not exceed 15 business days.
(B) The period for the response of a covered individual to
a notice of a proposed removal, demotion, or suspension under
this section shall be 7 business days.
(C) Chapter 43 and paragraph (3) of subsection (b) of
section 7513 of title 5, United States Code, shall apply with
respect to a removal, demotion, or suspension under this
section.
(D) The procedures in this subsection shall supersede any
collective bargaining agreement to the extent that such
agreement is inconsistent with such procedures.
(2) Deadline for final decision.--The Secretary shall issue
a final decision with respect to a removal, demotion, or
suspension under this section not later than 15 business days
after the Secretary provides notice, including a file
containing all the evidence in support of the proposed action,
to the covered individual of the removal, demotion, or
suspension. The decision shall be in writing and shall include
the specific reasons therefor.
(3) Appeal to merit systems protection board.--
(A) Subject to subparagraph (B) and subsection (d),
any removal or demotion under this section, and any
suspension of more than 14 days under this section, may
be appealed to the Merit Systems Protection Board,
which shall refer such appeal to an administrative
judge pursuant to section 7701(b)(1) of title 5.
(B) An appeal under subparagraph (A) of a removal,
demotion, or suspension may only be made if such appeal
is made not later than 10 business days after the date
of such removal, demotion, or suspension.
(d) Expedited Review.--
(1) Upon receipt of an appeal under subsection (c)(3)(A),
the administrative judge shall expedite any such appeal under
section 7701(b)(1) of title 5, United States Code, and, in any
such case, shall issue a final and complete decision not later
than 180 days after the date of the appeal.
(2)(A) Notwithstanding section 7701(c)(1)(B) of title 5,
United States Code, the administrative judge shall uphold the
decision of the Secretary to remove, demote, or suspend an
employee under subsection (a) if the decision is supported by
substantial evidence.
(B) Notwithstanding title 5, United States Code, or any
other provision of law, if the decision of the Secretary is
supported by substantial evidence, the administrative judge
shall not mitigate the penalty prescribed by the Secretary.
(3)(A) The decision of the administrative judge under
paragraph (1) may be appealed to the Merit Systems Protection
Board.
(B) Notwithstanding section 7701(c)(1)(B) of title 5,
United States Code, the Merit Systems Protection Board shall
uphold the decision of the Secretary to remove, demote, or
suspend an employee under subsection (a) if the decision is
supported by substantial evidence.
(C) Notwithstanding title 5, United States Code, or any
other provision of law, if the decision of the Secretary is
supported by substantial evidence, the Merit Systems Protection
Board shall not mitigate the penalty prescribed by the
Secretary.
(4) In any case in which the administrative judge cannot
issue a decision in accordance with the 180-day requirement
under paragraph (1), the Merit Systems Protection Board shall,
not later than 14 business days after the expiration of the
180-day period, submit to Congress a report that explains the
reasons why a decision was not issued in accordance with such
requirement.
(5) A decision of the Merit Systems Protection Board under
paragraph (3) may be appealed to the United States Court of
Appeals for the Federal Circuit pursuant to section 7703 of
title 5, United States Code, or to any court of appeals of
competent jurisdiction pursuant to subsection (b)(1)(B) of such
section.
(6) The Merit Systems Protection Board may not stay any
removal or demotion under this section, except as provided in
section 1214(b) of title 5.
(7) During the period beginning on the date on which a
covered individual appeals a removal from the civil service
under subsection (c) and ending on the date that the United
States Court of Appeals for the Federal Circuit issues a final
decision on such appeal, such covered individual may not
receive any pay, awards, bonuses, incentives, allowances,
differentials, student loan repayments, special payments, or
benefits related to the employment of the individual by the
Department.
(8) To the maximum extent practicable, the Secretary shall
provide to the Merit Systems Protection Board such information
and assistance as may be necessary to ensure an appeal under
this subsection is expedited.
(9) If an employee prevails on appeal under this section,
the employee shall be entitled to backpay (as provided in
section 5596 of title 5, United States Code).
(10) If an employee who is subject to a collective
bargaining agreement chooses to grieve an action taken under
this section through a grievance procedure provided under the
collective bargaining agreement, the timelines and procedures
set forth in subsection (c) and this subsection shall apply.
(e) Whistleblower Protection.--
(1) In the case of a covered individual seeking corrective
action (or on behalf of whom corrective action is sought) from
the Office of Special Counsel based on an alleged prohibited
personnel practice described in section 2302(b) of title 5,
United States Code, the Secretary may not remove, demote, or
suspend such covered individual under subsection (a) without
the approval of the Special Counsel under section 1214(f) of
title 5.
(2) In the case of a covered individual who has made a
whistleblower disclosure to the Whistleblower Protection
Ombudsman, the Secretary may not remove, demote, or suspend
such covered individual under subsection (a) until--
(A) in the case in which the Assistant Secretary
determines to refer the whistleblower disclosure under
subsection (e) to an office or other investigative
entity, a final decision with respect to the
whistleblower disclosure has been made by such office
or other investigative entity; or
(B) in the case in which the Assistant Secretary
determines not to the refer the whistleblower
disclosure under such section, the Assistant Secretary
makes such determination.
(f) Termination of Investigations by Office of Special Counsel.--
(1) Notwithstanding any other provision of law, the Special
Counsel (established by section 1211 of title 5, United States
Code) may terminate an investigation of a prohibited personnel
practice alleged by an employee or former employee of the
Department after the Special Counsel provides to the employee
or former employee a written statement of the reasons for the
termination of the investigation.
(2) Such statement may not be admissible as evidence in any
judicial or administrative proceeding without the consent of
such employee or former employee.
(g) Vacancies.--In the case of a covered individual who is removed
or demoted under subsection (a), to the maximum extent feasible, the
Secretary shall fill the vacancy arising as a result of such removal or
demotion.
SEC. 4. REDUCTION OF BENEFITS OF EMPLOYEES CONVICTED OF CERTAIN CRIMES.
(a) Reduction of Annuity for Removed Employee.--
(1) In general.--The Secretary shall order that the covered
service of an employee of the Department removed from a
position for performance or misconduct under section 2 or any
other provision of law shall not be taken into account for
purposes of calculating an annuity with respect to such
individual under chapter 83 or chapter 84 of title 5, United
States Code, if--
(A) the Secretary determines that the individual is
convicted of a felony (and the conviction is final)
that influenced the individual's performance while
employed in the position;
(B) before such order is made, the individual is
afforded--
(i) notice of the proposed order; and
(ii) an opportunity to respond to the
proposed order by not later than ten business
days following receipt of such notice; and
(C) the Secretary issues the order--
(i) in the case of a proposed order to
which an individual responds under subparagraph
(B)(ii), not later than five business days
after receiving the response of the individual;
or
(ii) in the case of a proposed order to
which an individual does not respond, not later
than 15 business days after the Secretary
provides notice to the individual under
subparagraph (B)(i).
(2) Appeal.--Any individual with respect to whom an annuity
is reduced under this subsection may appeal the reduction to
the Director of the Office of Personnel Management pursuant to
such regulations as the Director may prescribe for purposes of
this subsection.
(b) Reduction of Annuity for Retired Employee.--
(1) In general.--The Secretary may order that the covered
service of an individual who the Secretary proposes to remove
for performance or misconduct under section 2 or any other
provision of law but who leaves employment at the Department
prior to the issuance of a final decision with respect to such
action shall not be taken into account for purposes of
calculating an annuity with respect to such individual under
chapter 83 or chapter 84 of title 5, United States Code, if--
(A) the Secretary determines that individual is
convicted of a felony (and the conviction is final)
that influenced the individual's performance while
employed in the position;
(B) before such order is made, the individual is
afforded--
(i) notice of the proposed order; and
(ii) an opportunity to respond to the
proposed order by not later than ten business
days following receipt of such notice; and
(C) the Secretary issues the order--
(i) in the case of a proposed order to
which an individual responds under subparagraph
(B)(ii), not later than five business days
after receiving the response of the individual;
or
(ii) in the case of a proposed order to
which an individual does not respond, not later
than 15 business days after the Secretary
provides notice to the individual under
subparagraph (B)(i).
(2) Appeal.--Upon the issuance of an order by the Secretary
under paragraph (1), the individual shall have an opportunity
to appeal the order to the Director of the Office of Personnel
Management before the date that is seven business days after
the date of such issuance.
(3) Final decision.--The Director of the Office of
Personnel Management shall make a final decision with respect
to an appeal under paragraph (2) within 30 business days of
receiving the appeal.
(c) Administrative Requirements.--Not later than 37 business days
after the Secretary issues a final order under subsection (a) or (b)
with respect to an individual, the Director of the Office of Personnel
Management shall recalculate the annuity of the individual.
(d) Lump-Sum Annuity Credit.--Any individual with respect to whom
an annuity is reduced under subsection (a) or (b) shall be entitled to
be paid so much of such individual's lump-sum credit as is attributable
to the period of covered service.
(e) Spouse or Children Exception.--
(1) The Secretary, in consultation with the Director of the
Office of Personnel Management, shall prescribe regulations
that may provide for the payment to the spouse or children of
any individual referred to in subsection (a) or (b) of any
amounts which (but for this subsection) would otherwise have
been nonpayable by reason of such subsections.
(2) Regulations prescribed under paragraph (1) shall be
consistent with the requirements of sections 8332(o)(5) and
8411(l)(5) of title 5, United States Code, as the case may be.
SEC. 5. RECOUPMENT OF BONUSES OR AWARDS PAID TO EMPLOYEES OF
DEPARTMENT.
(a) In General.--Notwithstanding any other provision of law, the
Secretary may issue an order directing an employee of the Department to
repay the amount, or a portion of the amount, of any award or bonus
paid to the employee under title 5, United States Code, including under
chapter 45 or 53 of such title, if--
(1) the Secretary determines that the individual engaged in
misconduct or poor performance prior to payment of the award or
bonus, and that such award or bonus would not have been paid,
in whole or in part, had the misconduct or poor performance
been known prior to payment;
(2) before such repayment, the employee is afforded--
(A) notice of the proposed order; and
(B) an opportunity to respond to the proposed order
by not later than 10 business days after the receipt of
such notice; and
(3) the Secretary issues the order--
(A) in the case of a proposed order to which an
individual responds under paragraph (2)(B), not later
than five business days after receiving the response of
the individual; or
(B) in the case of a proposed order to which an
individual does not respond, not later than 15 business
days after the Secretary provides notice to the
individual under paragraph (2)(A).
(b) Appeal of Order of Secretary.--
(1) Upon the issuance of an order by the Secretary under
subsection (a) with respect to an individual, the individual
shall have an opportunity to appeal the order to the Director
of the Office of Personnel Management before the date that is
seven business days after the date of such issuance.
(2) The Director shall make a final decision with respect
to an appeal under paragraph (1) within 30 business days after
receiving such appeal.
(c) Effective Date.--Chapter 45 or 53 of title 5, United States
Code, shall apply with respect to an award or bonus paid by the
Secretary to any employee of the Department on or after the date of the
enactment of this Act.
(d) Construction.--Nothing in this Act or the amendments made by
this Act may be construed to modify the certification issued by the
Office of Personnel Management and the Office of Management and Budget
regarding the performance appraisal system of the Senior Executive
Service of the Department.
SEC. 6. RECOUPMENT OF RELOCATION EXPENSES PAID ON BEHALF OF EMPLOYEES
OF DEPARTMENT.
(a) In General.--Notwithstanding any other provision of law, the
Secretary may issue an order directing an employee of the Department to
repay the amount, or a portion of the amount, paid to or on behalf of
the employee under title 5, United States Code, for relocation
expenses, including any expenses under section 5724 or 5724a of such
title, or if--
(1) the Secretary determines that relocation expenses were
paid following an act of fraud or malfeasance that influenced
the authorization of the relocation expenses;
(2) before such repayment, the employee is afforded--
(A) notice of the proposed order; and
(B) an opportunity to respond to the proposed order
not later than ten business days following the receipt
of such notice; and
(3) the Secretary issues the order--
(A) in the case of a proposed order to which an
individual responds under paragraph (2)(B), not later
than five business days after receiving the response of
the individual; or
(B) in the case of a proposed order to which an
individual does not respond, not later than 15 business
days after the Secretary provides notice to the
individual under paragraph (2)(A).
(b) Appeal of Order of Secretary.--
(1) Upon the issuance of an order by the Secretary under
subsection (a) with respect to an individual, the individual
shall have an opportunity to appeal the order to the Director
of the Office of Personnel Management before the date that is
seven business days after the date of such issuance.
(2) The Director shall make a final decision with respect
to an appeal under paragraph (1) within 30 days after receiving
such appeal.
(c) Effective Date.--Chapter 45 or 53 of title 5, United States
Code, shall apply with respect to an amount paid by the Secretary to or
on behalf of an employee of the Department for relocation expenses on
or after the date of the enactment of this Act.
SEC. 7. MAJOR ADVERSE ACTIONS INVOLVING PROFESSIONAL CONDUCT OR
COMPETENCE.
(a) Establishment of Disciplinary Appeals Board.--
(1) Appointment.--The Secretary shall appoint 3 employees
of the Department who are senior executives or career senior
executives to serve on a Disciplinary Appeals Board (hereafter
referred to as the ``Board'') which shall have the exclusive
authority to review any disciplinary action taken against a
covered employee of the Department which arises out of or
includes a question of professional misconduct or competence.
(2) Political makeup of the board.--At least one member of
the Board shall be of a different political party than the
other two members.
(b) Initial Procedures.--
(1) Rights of covered employees.--
(A) Statement of charges and evidence.--In any case
in which charges are brought against a covered employee
which arises out of, or includes, a question of
professional conduct or competence which could result
in a major adverse action, the covered employee is
entitled, within the aggregate time period specified in
paragraph (4), to the following:
(i) Advance written notice from the
deciding official specifically stating the
basis for each charge, the adverse actions that
could be taken if the charges are sustained, a
statement of any specific law, regulation,
policy, procedure, practice, or other specific
instruction that has been violated with respect
to each charge, and a file containing all the
evidence in support of each charge, except that
the requirement for notification in advance may
be waived if there is reasonable cause to
believe that the employee has committed a crime
for which the employee may be imprisoned.
(ii) The opportunity, within the time
period provided for in paragraph (4), to
present an answer orally and in writing to the
deciding official, who shall be an official
higher in rank than the charging official, and
to submit affidavits and other documentary
evidence in support of the answer. The period
for the response of a covered employee shall be
seven business days.
(B) Right to representation.--In any case described
in paragraph (1), the employee is entitled to be
represented by an attorney or other representative of
the employee's choice at all stages of the case.
(2) Final decision by deciding officer.--After considering
the employee's answer, if any, and within the time period
provided for in paragraph (5)(B), the deciding official shall
render a decision on the charges. The decision shall be in
writing and shall include the deciding official provides notice
on the charges for purposes of paragraph (1)(A)(i).
(3) Appeals to the Board.--The Secretary shall require that any
appeal to a Board from a decision to impose a major adverse action
shall be received within seven business days after the date of service
of the written decision on the covered employee.
(4) Timing.--The aggregate period for the resolution of charges
against an employee under this subsection may not exceed 15 business
days.
(5) Supercession of Any Collective Bargaining Agreement.--The
procedures in this subsection shall supersede any collective bargaining
agreement to the extent that such agreement is inconsistent with such
procedures.
(c) Procedures of Appeals Before the Board.--
(1) Initial determination.--When the Board convenes to
consider an appeal in a case under this section, the Board,
before proceeding to consider the merits of the appeal, shall
determine whether the case is properly before it.
(2) Decisions by the board.--Upon hearing such an appeal,
the Board shall, with respect to each charge appealed to the
Board, sustain the charge, dismiss the charge, or sustain the
charge in part and dismiss the charge in part. If the deciding
official is sustained (in whole or in part) with respect to any
such charge, the Board shall--
(A) approve the action as imposed;
(B) approve the action with modification,
reduction, or exception; or
(C) reverse the action.
(3) Right to oral hearing.--A Board shall afford an
employee appealing an adverse action under this section an
opportunity for an oral hearing. If such a hearing is held, the
Board shall provide the employee with a transcript of the
hearing.
(4) Representation of management.--The Secretary may
designate an employee of the Department to represent management
in any case before a Board.
(5) Deadline for decision.--The Board shall render a
decision in any case within 45 days of completion of the
hearing, if there is a hearing, and in any event no later than
120 days after the appeal commenced.
(d) Actions by the Secretary.--
(1) If the secretary agrees with the decision of the
board.--After resolving any question as to whether a matter
involves professional conduct or competence, the Secretary
shall cause to be executed the decision of the Board in a
timely manner and in any event in not more than 90 days after
the decision of the Board is received by the Secretary.
Pursuant to the Board's decision, the Secretary may order
reinstatement, award back pay, and provide such other remedies
as the Board found appropriate relating directly to the
proposed action, including expungement of records relating to
the action.
(2) If the secretary disagrees with a decision by the
board.--
(A) Contrary to evidence or unlawful.--If the
Secretary finds a decision of the Board to be clearly
contrary to the evidence or unlawful, the Secretary
may--
(i) reverse the decision of the Board; or
(ii) vacate the decision of the Board and
remand the matter to the Board for further
consideration.
(B) Not justified by the nature of the charges.--If
the Secretary finds the decision of the Board (while
not clearly contrary to the evidence or unlawful) to be
not justified by the nature of the charges, the
Secretary may mitigate the adverse action imposed.
(3) Secretary's action final.--The Secretary's execution of
a Board's decision shall be the final administrative action in
the case.
(e) Judicial Review.--
(1) In general.--A covered employee adversely affected by a
final order or decision of a Board (as reviewed by the
Secretary) may obtain judicial review of the order or decision.
(2) Actions by the court.--In any case in which judicial
review is sought under this subsection, the court shall review
the record and hold unlawful and set aside any agency action,
finding, or conclusion found to be--
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(B) obtained without procedures required by law,
rule, or regulation having been followed; or
(C) unsupported by substantial evidence.
SEC. 8. PROCEDURES FOR OTHER ADVERSE ACTIONS NOT RELATING TO MISCONDUCT
OR COMPETENCE.
(a) Procedures Prescribed by the Secretary.--
(1) Authority.--The Secretary shall prescribe by regulation
grievance procedures for the consideration of grievances of a
covered employee arising from adverse personnel actions in
which each action taken either--
(A) is not a major adverse action; or
(B) does not arise out of a question of
professional misconduct or competence.
(2) Requirements.--Grievance procedures prescribed under
subsection (a) shall include the following:
(A) A right to formal review by an impartial
examiner within the Department, who, in the case of an
adverse action arising from a question of professional
conduct or competence, shall be selected from the
Disciplinary Appeals Board established under section 7.
(B) A right to a prompt report of the findings and
recommendations by the impartial examiner.
(C) A right to a prompt review of the examiner's
findings and recommendations by an official of a higher
level than the official who decided upon the action.
That official may accept, modify, or reject the
examiner's recommendations.
(b) Option of Employee Covered by Collective Bargaining
Agreement.--In the case of an employee who is a member of a collective
bargaining unit under chapter 71 of title 5, the employee may seek
review of an adverse action described in subsection (a) either under
the grievance procedures provided through regulations prescribed under
subsection (a) or through grievance procedures determined through
collective bargaining, but not under both. The employee shall elect
which grievance procedure to follow. Any such election may not be
revoked.
(c) Rights of Employees.--A covered employee filing a grievance
under this section shall be entitled to the following:
(1) In any case in which charges are brought against
covered employee which could result in a major adverse action
and which do not involve professional conduct or competence,
the employee is entitled to notice and an opportunity to answer
with respect to those charges.
(2) In any other case in which charges are brought against
a covered employee the employee is entitled, within the
aggregate time period specified in paragraph (3)(A), to--
(A) written notice stating the specific reason for
the proposed action; and
(B) time to answer orally and in writing and to
furnish affidavits and other documentary evidence in
support of the answer.
(3)(A) The aggregate period for the resolution of charges
against an employee under paragraph (1) or (2) may not exceed
15 business days.
(B) The period for the response of an employee under
paragraph (1) or (2)(B) to written notice of charges under
paragraph (1) or (2)(A), as applicable, shall be seven business
days.
(C) The deciding official shall render a decision on
charges under paragraph (1) or (2) not later than 15 business
days after notice is provided on the charges for purposes of
paragraph (1) or (2)(A), as applicable.
(d) Right to Representation.--In any review of an adverse action
under the grievance procedures prescribed under subsection (a), the
employee is entitled to be represented by an attorney or other
representative of the employee's choice at all stages of the case.
SEC. 9. IMPROVEMENT OF TRAINING FOR SUPERVISORS.
The Secretary shall provide to each employee of the Department who
is employed as a supervisor periodic training on the following:
(1) The rights of whistleblowers and how to address a
report by an employee of a hostile work environment, reprisal,
or harassment.
(2) How to effectively motivate, manage, and reward the
employees who report to the supervisor.
(3) How to effectively manage employees who are performing
at an unacceptable level and access assistance from the human
resources office of the Department and the Office of the
General Counsel of the Department with respect to those
employees.
SEC. 10. ASSESSMENT AND REPORT ON EFFECT ON SENIOR EXECUTIVES AT THE
DEPARTMENT OF LABOR.
(a) In General.--Not later than two years after the date of the
enactment of this Act, the Secretary shall--
(1) measure and assess the effect of the enactment of this
Act on the morale, engagement, hiring, promotion, retention,
discipline, and productivity of individuals in senior executive
positions at the Department; and
(2) submit to Congress a report on the findings of the
Secretary with respect to the measurement and assessment
carried out under paragraph (1).
(b) Elements.--The assessment required by subsection (a)(1) shall
include the following:
(1) With respect to engagement, trends in morale of
individuals in senior executive positions and individuals
aspiring to senior executive positions.
(2) With respect to promotions--
(A) whether the Department is experiencing an
increase or decrease in the number of employees
participating in leadership development and candidate
development programs with the intention of becoming
candidates for senior executive positions; and
(B) trends in applications to senior executive
positions within the Department.
(3) With respect to retention--
(A) trends in retirement rates of individuals in
senior executive positions at the Department;
(B) trends in quit rates of individuals in senior
executive positions at the Department;
(C) rates of transfer of--
(i) individuals from other Federal agencies
into senior executive positions at the
Department; and
(ii) individuals from senior executive
positions at the Department to other Federal
agencies; and
(D) trends in total loss rates by job function.
(4) With respect to disciplinary processes--
(A) regarding individuals in senior executive
positions at the Department who are the subject of
disciplinary action--
(i) the length of the disciplinary process
in days for such individuals both before the
date of the enactment of this Act and under the
provisions of this Act described in subsection
(a)(1); and
(ii) the extent to which appeals by such
individuals are upheld under such provisions as
compared to before the date of the enactment of
this Act;
(B) the components or offices of the Department
which experience the greatest number of proposed
adverse actions against individuals in senior executive
positions and components and offices which experience
the least relative to the size of the components or
offices' total number of senior executive positions;
(C) the tenure of individuals in senior executive
positions who are the subject of disciplinary action;
(D) whether the individuals in senior executive
positions who are the subject of disciplinary action
have previously been disciplined; and
(E) the number of instances of disciplinary action
taken by the Secretary against individuals in senior
executive positions at the Department as compared to
governmentwide discipline against individuals in Senior
Executive Service positions (as defined in section
3132(a) of title 5, United States Code) as a percentage
of the total number of individuals in senior executive
positions at the Department and Senior Executive
Service positions (as so defined).
(5) With respect to hiring--
(A) the degree to which the skills of newly hired
individuals in senior executive positions at the
Department are appropriate with respect to the needs of
the Department;
(B) the types of senior executive positions at the
Department most commonly filled under the authorities
in the provisions described in subsection (a)(1);
(C) the number of senior executive positions at the
Department filled by hires outside of the Department
compared to hires from within the Department;
(D) the length of time to fill a senior executive
position at the Department and for a new hire to begin
working in a new senior executive position;
(E) the mission-critical deficiencies filled by
newly hired individuals in senior executive positions
and the connection between mission-critical
deficiencies filled under the provisions described in
subsection (a) and annual performance of the
Department;
(F) the satisfaction of applicants for senior
executive positions at the Department with the hiring
process, including the clarity of job announcements,
reasons for withdrawal of applications, communication
regarding status of applications, and timeliness of
hiring decision; and
(G) the satisfaction of newly hired individuals in
senior executive positions at the Department with the
hiring process and the process of joining and becoming
oriented with the Department.
SEC. 11. MEASUREMENT OF DEPARTMENT OF LABOR DISCIPLINARY PROCESS
OUTCOMES AND EFFECTIVENESS.
(a) Measuring and Collecting.--
(1) In general.--The Secretary shall measure and collect
information on the outcomes of disciplinary actions carried out
by the Department during the three-year period ending on the
date of the enactment of this Act and the effectiveness of such
actions.
(2) Elements.--In measuring and collecting pursuant to
paragraph (1), the Secretary shall measure and collect
information regarding the following:
(A) The average time from the initiation of an
adverse action against an employee at the Department to
the final resolution of that action.
(B) The number of distinct steps and levels of
review within the Department involved in the
disciplinary process and the average length of time
required to complete these steps.
(C) The rate of use of alternate disciplinary
procedures compared to traditional disciplinary
procedures and the frequency with which employees who
are subject to alternative disciplinary procedures
commit additional offenses.
(D) The number of appeals from adverse actions
filed against employees of the Department, the number
of appeals upheld, and the reasons for which the
appeals were upheld.
(E) The use of paid administrative leave during the
disciplinary process and the length of such leave.
(b) Report.--
(1) In general.--Not later than December 31, 2020, the
Secretary shall submit to Congress a report on the disciplinary
procedures and actions of the Department.
(2) Contents.--The report submitted under paragraph (1)
shall include the following:
(A) The information collected under subsection (a).
(B) The findings of the Secretary with respect to
the measurement and collection carried out under
subsection (a).
(C) An analysis of the disciplinary procedures and
actions of the Department.
(D) Suggestions for improving the disciplinary
procedures and actions of the Department.
(E) Such other matters as the Secretary considers
appropriate.
SEC. 12. DEFINITIONS.
In this Act the following definitions apply:
(1) Covered employee.--The term ``covered employee''
means--
(A) a career appointee (as that term is defined in
section 3132(a)(4) of title 5, United States Code);
(B) any individual who occupies an administrative
or executive position; or
(C) an individual occupying a senior executive
position.
(2) Covered individual.--The term ``covered individual'',
for purposes of section 3, means an individual occupying a
position at the Department, but does not include--
(A) an individual occupying a senior executive
position;
(B) an individual who has not completed a
probationary or trial period; or
(C) a political appointee.
(3) Covered service.--The term ``covered service'' means,
with respect to an individual subject to a removal for
performance or misconduct, the period of service beginning on
the date that the Secretary determines under such applicable
provision that the individual engaged in activity that gave
rise to such action and ending on the date that the individual
is removed from or leaves a position of employment at the
Department prior to the issuance of a final decision with
respect to such action.
(4) Department.--The term ``Department'' means the
Department of Labor.
(5) Grade.--The term ``grade'' has the meaning given such
term in section 7511(a) of title 5.
(6) Lump-sum credit.--The term ``lump-sum credit'' has the
meaning given such term in section 8331(8) or section 8401(19)
of title 5, United States Code, as the case may be.
(7) Misconduct.--The term ``misconduct'' includes neglect
of duty, malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer of
function.
(8) Political appointee.--The term ``political appointee''
means an individual who is--
(A) employed in a position described under sections
5312 through 5316 of title 5, United States Code
(relating to the Executive Schedule);
(B) a limited term appointee, limited emergency
appointee, or noncareer appointee in the Senior
Executive Service, as defined under paragraphs (5),
(6), and (7), respectively, of section 3132(a) of title
5, United States Code; or
(C) employed in a position of a confidential or
policy-determining character under schedule C of
subpart C of part 213 of title 5, Code of Federal
Regulations, or successor regulation.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(10) Senior executive position.--The term ``senior
executive position'' means--
(A) with respect to a career appointee (as that
term is defined in section 3132(a) of title 5, United
States Code), a Senior Executive Service position (as
such term is defined in such section); and
(B) with respect to a covered employee or covered
individual, has the meaning given such term in section
3132(a) of title 5, United States Code.
(11) Supervisor.--The term ``supervisor'' has the meaning
given such term in section 7103(a) of title 5, United States
Code.
(12) Service.--The term ``service'' has the meaning given
such term in section 8331(12) or section 8401(26) of title 5,
United States Code, as the case may be.
(13) Suspend.--The term ``suspend'' means the placing of an
employee, for disciplinary reasons, in a temporary status
without duties and pay for a period in excess of 14 days.
(14) Whistleblower.--The term ``whistleblower'' means one
who makes a whistleblower disclosure.
(15) Whistleblower disclosure.--The term ``whistleblower
disclosure'' means any disclosure of information by an employee
of the Department or individual applying to become an employee
of the Department which the employee or individual reasonably
believes evidences--
(A) a violation of a law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific
danger to public health or safety.
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