[Pages S1439-S1443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BIENNIAL REPORT OF BOARD OF DIRECTORS OF CONGRESSIONAL WORKPLACE RIGHTS
U.S. Congress, Office of Congressional Workplace Rights,
Washington, DC, February 25, 2019.
Hon. Charles Grassley,
President Pro Tempore, U.S. Senate,
Washington, DC.
Dear Mr. President: Section 102(b) of the Congressional
Accountability Act of 1995 (CAA) requires the Board of
Directors of the Office of Congressional Workplace Rights
(OCWR) to biennially submit a report containing
recommendations regarding Federal workplace rights, safety
and health, and public access laws and regulations that
should be made applicable to Congress and its agencies. The
purpose of this report is to ensure that the rights afforded
by the CAA to legislative branch employees and visitors to
Capitol Hill and district offices remain equivalent to those
in the private sector and the executive branch of the Federal
government. As such, these recommendations support the intent
of Congress to keep pace with advances in workplace rights
and public access laws.
Accompanying this letter is a copy of our section 102(b)
report--titled ``Recommendations for Improvements to the
Congressional Accountability Act''--for consideration by the
116th Congress. We welcome discussion on these issues and
urge that Congress act on these important recommendations.
Your office is receiving this initial copy prior to it
being uploaded to our public website. On March 4, 2019, this
report will be disseminated to the larger Congressional
community and available on www.ocwr.gov. As required by the
Congressional Accountability Act, 2 U.S.C. Sec. 1302(b), I
request that this publication be printed in the Congressional
Record, and referred to the committees of the House of
Representatives and Senate with jurisdiction.
Sincerely,
Susan Tsui Grundmann,
Executive Director.
[[Page S1440]]
116th Congress--Recommendations for Improvements to the Congressional
Accountability Act
Office of Congressional Workplace Rights--Board of Directors' Biennial
Report required by Sec. 102(b) of the Congressional Accountability Act
issued at the conclusion of the 115th Congress (2017-2018) for
consideration by the 116th Congress
Statement From the Board of Directors
The Congressional Accountability Act of 1995 (CAA) embodies
a promise by Congress to the American public that it will
hold itself accountable to the same federal workplace and
accessibility laws that it applies to private sector
employers and executive branch agencies. This landmark
legislation was also crafted to provide for ongoing review of
the workplace and accessibility laws that apply to Congress.
Section 102(b) of the CAA thus tasks the Board of Directors
of the Office of Congressional Workplace Rights (OCWR)--
formerly the Office of Compliance--to review legislation and
regulations to ensure that workplace protections in the
legislative branch are on par with private sector and
executive branch agencies. Accordingly, every Congress, the
Board reports on: whether or to what degree [provisions of
Federal law (including regulations) relating to (A) the terms
and conditions of employment (including hiring, promotion,
demotion, termination, salary, wages, overtime compensation,
benefits, work assignments or reassignments, grievance and
disciplinary procedures, protection from discrimination in
personnel actions, occupational health and safety, and family
and medical and other leave) of employees; and (B) access to
public services and accommodations] . . . are applicable or
inapplicable to the legislative branch, and . . . with
respect to provisions inapplicable to the legislative branch,
whether such provisions should be made applicable to the
legislative branch. This section of the CAA also requires
that the presiding officers of the House of Representatives
and the Senate cause our report to be printed in the
Congressional Record and refer the report to committees of
the House and Senate with jurisdiction.
On December 21, 2018, as we were in the process of
finalizing our Section 102(b) Report for the 115th Congress,
the Congressional Accountability Act of 1995 Reform Act, S.
3749, was signed into law. Not since the passage of the CAA
in 1995 has there been a more significant moment in the
evolution of legislative branch workplace rights. The new law
focuses on protecting victims, strengthening transparency,
holding violators accountable for their personal conduct, and
improving the adjudication process. Some of the changes in
the CAA Reform Act are effective immediately, such as the
name change of our Office, but most will be effective 180
days from enactment, i.e., on June 19, 2019. The CAA Reform
Act incorporates several of the recommendations that the OCWR
has made to Congress in past Section 102(b) Reports and in
other contexts, such as in testimony before the Committee on
House Administration (CHA) as part of that committee's
comprehensive review in 2018 of the protections that the CAA
offers legislative branch employees against harassment and
discrimination in the congressional workplace. These changes
include the following:
Mandatory Anti-Discrimination, Anti-Harassment, and Anti-
Retaliation Training
The Board has consistently recommended in its past biennial
Section 102(b) Reports and in testimony before Congress that
anti-discrimination, anti-harassment, and anti-reprisal
training should be mandatory for all Members, officers,
employees and staff of Congress and the other employing
offices in the legislative branch. Last year, the House and
the Senate adopted resolutions (S. Res 330 and H. Res. 630)
that require all of its Members, Officers and employees, as
well as interns, detailees, and fellows, to complete an anti-
harassment and anti-discrimination training program. We are
pleased that the CAA Reform Act includes these broader
mandates for the congressional workforce at large. Under the
new law, employing offices (other than the House of
Representatives and the Senate) are also required to develop
and implement a program to train and educate covered
employees on the rights and protections provided under the
CAA, including the procedures available under CAA title IV,
which describes the OCWR administrative and judicial dispute
resolution procedures. 509(a), 2 U.S.C. Sec. 1438(a).
Employing offices must submit a report on the implementation
of their CAA-required training and education programs to the
CHA and the Committee on Rules and Administration of the
Senate no later than 45 days after the beginning of each
Congress, beginning with the 117th Congress. For the 116th
Congress, this report is due no later than 180 days after the
enactment of the CAA Reform Act, which is June 19, 2019.
509(b)(1), (b)(2), 2 U.S.C. Sec. 1438(b)(1), (b)(2)
The OCWR stands ready to assist employing offices in
developing their anti-discrimination, anti-harassment, and
anti-reprisal programs by providing training opportunities
and materials that are easily understood, practical rather
than legalistic, proven effective, and which emphasize the
change of culture on Capitol Hill. Through these programs, we
can achieve the goal of a legislative branch that is free
from discrimination, harassment and reprisal.
Adopt All Notice-Posting Requirements that Exist Under the
Federal Anti-Discrimination, Anti-Harassment, and Other
Workplace Rights Laws Covered Under the CAA
The Board has long been concerned that employees who
experience harassment or discrimination in the legislative
branch may be deterred from taking action simply due to a
lack of awareness of their rights under the CAA. The Board
has therefore consistently recommended in its Section 102(b)
reports that Congress adopt all notice-posting requirements
that exist under the Federal antidiscrimination, anti-
harassment, and other workplace rights laws covered under the
CAA. Through permanent postings, current and new employees
remain informed about their rights regardless of their
location, employee turnover, or other changes in the
workplace. The notices also serve as a reminder to employers
about their workplace responsibilities and the legal
ramifications of violating the law. They are also a visible
commitment by Congress to the workplace protections embodied
in the CAA. The CAA Reform Act now requires that employing
offices post and keep posted in conspicuous places on their
premises the notices provided by the OCWR, which must contain
information about employees' rights and the OCWR's
Administrative Dispute Resolution (ADR) process, along with
OCWR contact information. 2 U.S.C. Sec. 1362.
Name Change
As the Board advised Congress in 2014, changing the name of
the office to ``Office of Congressional Workplace Rights''
would better reflect our mission, raise our public profile in
connection with our mandate to educate the legislative
branch, and make it easier for employees to identify us when
they need assistance. Effective December 21, 2018, the Reform
Act renamed the ``Office of Compliance'' as the ``Office of
Congressional Workplace Rights.'' This name change notifies
legislative branch employees that the Office is tasked with
protecting their workplace rights through its programs of
dispute resolution, education, and enforcement. As the Office
embraces its new name, it remains committed to the mission of
advancing workplace rights, safety and health, and
accessibility for workers and visitors on Capitol Hill, as
envisioned in the CAA and the CAA Reform Act.
Extending Coverage to Interns, Fellows, and Detailees
The Board also has consistently recommended in its Section
102(b) Reports that Congress extend the coverage and
protections of the anti-discrimination, anti-harassment, and
anti-reprisal provisions of the CAA to all staff, including
interns, fellows, and detailees working in any employing
office in the legislative branch, regardless of how or
whether they are paid. The CAA Reform Act amends section 201
of the CAA--which applies title VII of the Civil Rights Act
of 1964 (outlawing discrimination based on race, color,
religion, sex, or national origin), the Age Discrimination in
Employment Act, the Rehabilitation Act, and title I of the
Americans with Disabilities Act (ADA)--to apply the
protections and remedies of those laws to current and former
``unpaid staff.'' ``Unpaid staff'' is defined in the Reform
Act as ``any staff member of an employing office who carries
out official duties of the employing office but who is not
paid by the employing office for carrying out such duties . .
. including an intern, an individual detailed to an employing
office, and an individual participating in a fellowship
program[.]'' These laws apply to unpaid staff ``in the same
manner and to the same extent as such subsections apply with
respect to a covered employee[.]'' 201(d), 2 U.S.C.
Sec. 1311(d). The Reform Act thus ensures that unpaid
interns, fellows, and detailees are covered by the CAA.
Extending Coverage to Library of Congress Employees
Prior to 2018, only certain provisions of the CAA applied
to employees of the Library of Congress (LOC), and the Board
expressed its support for proposals to amend the CAA to
include the LOC within the definition of ``employing
office,'' thereby extending CAA protections to LOC employees
for most purposes. The 2018 omnibus spending bill amended the
CAA to bring the LOC and its employees within the OCWR's
(then OOC's) jurisdiction. That bill amended the definition
of ``covered employee'' under the CAA to include employees of
the LOC, and it added the LOC as an ``employing office'' for
all purposes except the CAA's labor-management relations
provisions. Among other changes, the bill gave to LOC
employees a choice on how to pursue complaints of employment
discrimination--allowing them to pursue a complaint either
with the LOC's Office of Equal Employment Opportunity and
Diversity Programs or with the OCWR. The Reform Act
incorporates these statutory changes and further clarifies
the rights of LOC employees in this regard as well as others.
Its provisions are effective retroactive to March 23, 2018. 2
U.S.C. Sec. 1401(d)(5).
Changes to the Dispute Resolution Procedures Under the CAA
In testimony before the CHA as part of that committee's
comprehensive review of the CAA and the protections that law
offers legislative branch employees against harassment and
discrimination in the congressional workplace, OCWR Executive
Director Susan Tsui Grundmann conveyed the Board of
Directors' considered recommendations for changes to the ADR
procedures set forth in the Act, discussed below.
[[Page S1441]]
Pre-Reform Act Procedures Under the CAA
As stated above, the effective date for the new ADR
procedures under the Reform Act is June 19, 2019. Currently,
prior to filing a complaint with the OCWR pursuant to section
405 of the Act or in the U.S. District Court, the CAA
requires that an employee satisfy two jurisdictional
prerequisites: mandatory counseling and mandatory mediation.
If a claim is not resolved during the counseling phase and
the employee wishes to pursue the matter, the CAA currently
requires the employee to file a request for mediation with
the OCWR. When a case proceeds to mediation, the employing
office is notified about the claim and the parties attempt to
settle the matter with the assistance of a trained neutral
mediator appointed by the OCWR.
If the parties fail to resolve their dispute in mediation,
a covered employee may elect to proceed directly to the third
step in the process, either by filing an administrative
complaint with the OCWR, in which case the complaint would be
decided by an OCWR Hearing Officer in a confidential setting,
or by filing a lawsuit in a U.S. District Court, in which
case the proceedings would be a matter of public record. By
statute, this election--which is the employee's alone--must
occur not later than 90 days, but not sooner than 30 days,
after the end of the period of mediation. This statutory
timing requirement creates a 30-day period--sometimes
referred to as a ``cooling off period''--before the employee
can proceed. A party dissatisfied with the decision of the
Hearing Officer may file a petition for review with the OCWR
Board of Directors, and any decision of the Board may be
appealed to the U.S. Court of Appeals for the Federal
Circuit. If, instead of filing a request for an
administrative hearing, the employee files a civil suit in
Federal district court, an appeal of that decision would
proceed under the rules of the appropriate U.S. Court of
Appeals. As is discussed below, the Board has advocated in
the legislative process for several procedural changes now
provided for in the Reform Act, which potentially shorten the
case handling process without compromising its effectiveness
in resolving disputes under the CAA.
Counseling and Mediation Changes
In testimony before the CHA, Executive Director Grundmann
explained that counselors often provide covered employees
with their first opportunity to discuss their workplace
concerns and to learn about their statutory protections under
the CAA. She conveyed the Board's view that, although
counseling need not remain mandatory under the CAA, the CAA
should not be amended in such a manner as to eliminate the
availability of an opportunity for employees to voluntarily
seek confidential assistance from our office. Under the new
procedures set forth in the CAA Reform Act, counseling will
no longer be mandatory. Rather, the CAA Reform Act provides
for the optional services of a confidential advisor--an
attorney who can, among other things, provide information to
covered employees, on a privileged and confidential basis,
about their rights under the CAA. 2 U.S.C. Sec. 1402(a)(3).
As with counseling, the Executive Director also conveyed to
the CHA the Board's view supporting the elimination of
mediation as a mandatory jurisdictional prerequisite to
asserting claims under the CAA. The Board nonetheless
recommended that mediation be maintained as a valuable option
available to those parties who mutually seek to settle their
dispute. The OCWR's experience over many years has been that
a large percentage of controversies were successfully
resolved without formal adversarial proceedings, due in large
part to its mediation processes. Mediation can save the
parties from burdensome litigation, which can be expensive,
time consuming, and a drain on resources and workplace
productivity. Mediation also gives the parties an opportunity
to explore resolving the dispute themselves without having a
result imposed upon them. Furthermore, OCWR mediators are
highly skilled professionals who have the sensitivity,
expertise, and flexibility to customize the mediation process
to meet the concerns of the parties. In short, the
effectiveness of mediation as a tool to resolve workplace
disputes cannot be understated. Under the CAA Reform Act,
mediation still remains available, but it is optional. It is
no longer a jurisdictional prerequisite to asserting claims
under the CAA, and it will take place only if requested and
only if both parties agree.
``Cooling Off'' Period
As stated above, the CAA presently requires an employee to
wait 30 days after mediation ends to pursue a formal
administrative complaint or a lawsuit in a U.S. District
Court. In her testimony before the CHA, Executive Director
Grundmann conveyed the Board's recommendation that this
period be eliminated from the statute. The Reform Act
amendments do so.
As the changes set forth in the Reform Act take effect, the
Board will carefully monitor their effectiveness and advise
Congress of its findings in this regard. In this Report, we
also highlight key recommendations that the Board has made in
past Section 102(b) Reports that have not yet been
implemented. (see note 1.) We continue to believe that the
adoption of these recommendations, discussed below, will best
promote a model workplace in the legislative branch. The
Board welcomes an opportunity to further discuss these
recommendations and asks for careful consideration of the
requests by the 116th Congress.
Sincerely,
Barbara Childs Wallace,
Chair, Board of Directors.
Barbara L. Camens.
Alan V. Friedman.
Roberta L. Holzwarth.
Susan S. Robfogel.
Recommendations for the 116th Congress
Apply the Wounded Warrior Federal Leave Act of 2015 to the
Legislative Branch (Public Law 114-75)
The Wounded Warrior Federal Leave Act, enacted in 2015,
affords wounded warriors the flexibility to receive medical
care as they transition to serving the nation in a new
capacity. Specifically, new federal employees who are also
disabled veterans with a 30% or more disability may receive
104 hours of ``wounded warrior leave'' during their first
year in the federal workforce so that they may seek medical
treatment for their service-connected disabilities without
being forced to take unpaid leave or forego their medical
appointments. The Act was passed as a way to show gratitude
and deep appreciation for the hardship and sacrifices of
veterans and, in particular wounded warriors, in service to
the United States. Although some employing offices in the
legislative branch offer Wounded Warrior Federal Leave, the
Board reiterates the recommendation made in its 2016 Section
102(b) Report to extend the benefits of that Act to the
legislative branch with enforcement and implementation under
the provisions of the CAA.
Approve the Board's Pending Regulations
The CAA directs the OCWR to promulgate regulations
implementing the CAA to keep Congress current and accountable
to the workplace laws that apply to private and public
employers. The Board is required to amend its regulations to
achieve parity, unless there is good cause shown to deviate
from the private sector or executive branch regulations. The
Board recommended in its 2016 section 102(b) Report to the
115th Congress that it approve its pending regulations that
would implement the Family and Medical Leave Act (FMLA), ADA
titles II and III, and the Uniformed Services Employment and
Reemployment Act (USERRA) in the legislative branch. The
Board-adopted regulations ensure that same-sex spouses are
recognized under the FMLA, in accordance with Supreme Court
rulings, and further extend important protections for
military caregivers and service members. The Board's adopted
ADA regulations will avoid costly construction and
contracting errors that result when there is uncertainty or
ambiguity regarding what standards apply, and will improve
access to Capitol Hill for visitors and employees with
disabilities. The Board of Directors also transmitted to
Congress its adopted USERRA regulations on December 3, 2008
and identified ``good cause'' to modify the executive branch
regulations to implement more effectively the rights and
protections for veterans as applied to the Senate, the House
of Representatives, and the other employing offices. These
rules are necessary to fulfill the commitments set forth in
USERRA to our nation's veterans in the legislative branch.
Analysis of Pending FMLA Regulations:
On June 22, 2016, the Board of Directors adopted and
transmitted to Congress for approval its regulations
necessary for implementing the FMLA in the legislative
branch. In accordance with the CAA, those regulations are the
same as the substantive regulations adopted by the Secretary
of Labor, 2 U.S.C. Sec. 1312(d)(2), except where good cause
was shown that a modification would be more effective in
implementing FMLA rights under the CAA. We seek congressional
approval of these important FMLA regulations. The FMLA
regulations provide needed clarity on important aspects of
the law, including essential requirements for certifying
leave and documentation, defining ``spouse'' to include same-
sex spouses as required by the Supreme Court precedent, and
adding military caregiver leave. Adoption of these
regulations will reduce uncertainty for both employing
offices and employees and provide greater predictability in
the congressional workplace. First, these FMLA regulations
add the military leave provisions of the FMLA, enacted under
the National Defense Authorization Acts (NDAA) for Fiscal
Years 2008 and 2010 (see note 2), that extend the
availability of FMLA leave to family members of the Regular
Armed Forces for qualifying exigencies arising out of a
service member's deployment. They also define those
deployments covered under these provisions, extend FMLA
military caregiver leave for family members of current
service members to include an injury or illness that existed
prior to service and was aggravated in the line of duty on
active duty, and extend FMLA military caregiver leave to
family members of certain veterans with serious injuries or
illnesses. As noted, the FMLA amendments providing additional
rights and protections for service members and their families
were enacted into law by the NDAA for Fiscal Years 2008 and
2010. The congressional committee reports that accompany the
NDAA for Fiscal Years 2008 and 2010 and the amended FMLA
provisions do not ``describe the manner in which the
provision of the bill [relating to terms and conditions of
employment]... apply to the legislative branch'' or ``include
a statement of the reasons the provision does not apply [to
the legislative branch]'' (in the case of a provision
[[Page S1442]]
not applicable to the legislative branch), as required by
section 102(b)(3) of the CAA. (see note 3)
Consequently, when the FMLA was amended to add these
additional rights and protections, it was not clear whether
Congress intended that these additional rights and
protections apply in the legislative branch. To the extent
that there may be an ambiguity regarding the applicability to
the legislative branch of the 2008 and 2010 FMLA amendments,
the Board makes clear through these regulations that the
rights and protections for military servicemembers apply in
the legislative branch, and that protections under the CAA
are in line with existing public and private sector
protections under the FMLA. The Board-adopted FMLA
regulations implement leave protections of significant
importance to legislative branch employees and employing
offices. Accordingly, the Board recommends that Congress
approve the Board's adopted FMLA regulations. Second, these
regulations set forth the revised definition of ``spouse''
under the FMLA in light of the DOL's February 25, 2015 Final
Rule on the definition of spouse, and the United States
Supreme Court's decision in Obergefell v. Hodges (see note
4), which requires a state to license a marriage between two
people of the same sex and to recognize a marriage between
two people of the same sex when their marriage was lawfully
licensed and performed out-of-state.
Analysis of Pending ADA Regulations:
Public access to Capitol Hill and constituent access to
district and state offices has been a hallmark of many
congresses. The Board recommends that Congress approve its
adopted regulations implementing titles II and III of the ADA
to Capitol Hill and the district offices. First, the Board's
ADA regulations clarify which title II and title III
regulations apply to the legislative branch. This knowledge
will undoubtedly save taxpayers money by ensuring pre-
construction review of construction projects for ADA
compliance--rather than providing for only post-construction
inspections and costly redos when the access is not adequate.
Second, under the regulations adopted by the Board, all
leased spaces must meet some basic accessibility requirements
that apply to all federal facilities that are leased or
constructed. In this way, Congress will remain a model for
ADA compliance and public access. Under the authority of the
landmark CAA, the OOC has made significant progress towards
making Capitol Hill more accessible for persons with
disabilities. Our efforts to improve access to the buildings
and facilities on the campus are consistent with the priority
guidance in the Board's ADA regulations, which it adopted in
February 2016. Congressional approval of those regulations
would reaffirm its commitment to provide barrier-free access
to the visiting public to the Capitol Hill complex.
Analysis of Pending USERRA Regulations:
On December 3, 2008, the Board of Directors adopted USERRA
regulations to apply to the legislative branch. Those
regulations, transmitted to Congress over 10 years ago,
should be immediately approved. They support our nation's
veterans by requiring continuous health care insurance and
job protections for the men and women of the service who have
supported our country's freedoms. The 114th Congress was
particularly focused on issues concerning veterans' health,
welfare, access, and employment status. Approving the USERRA
regulations will assist service members in attaining and
retaining a job despite the call to duty. The regulations
commit to anti-discrimination, anti-retaliation, and job
protection under USERRA. Approving USERRA regulations would
signal congressional encouragement to veterans to seek work
in the legislative branch where veteran employment levels
have historically been well below the percentage in the
executive branch, or even in the private sector, which is not
under a mandate to provide a preference in hiring to
veterans. Indeed, many reports have put the level of veteran
employees on congressional staffs at two to three percent or
less. The Veterans Congressional Fellowship Caucus, started
in 2014, has supported efforts to bridge the gap between
military service and legislative work. In addition, the
Wounded Warrior Fellowship Program exists in the House Chief
Administrative Officer (CAO) where Members can hire veteran
fellows for 2-year terms. In the Senate, the Armed Forces
Internship Program exists to provide on-the-job training for
returning veterans with disabilities. An extension of these
laudable efforts should include the long-delayed passage of
the Board's adopted USERRA regulations which implement
protections for initial hiring and protect against
discrimination based on military service. Congress can lead
by example by applying the USERRA law encompassed in the CAA.
Approving the three sets of Board-adopted regulations
outlined above would not only signify a commitment to the
laws of the CAA--which passed in 1995 with nearly unanimous,
bi-cameral, and bipartisan support--but would further help
legislative branch managers effectively implement the laws'
protections and benefits on behalf of the workforce.
Protect Employees and Applicants Who Are or Have Been in
Bankruptcy (11 U.S.C. Sec. 525)
Section 525(a) of title 11 of the U.S. Code provides that
``a governmental unit'' may not deny employment to, terminate
the employment of, or discriminate with respect to employment
against, a person because that person is or has been a debtor
under the bankruptcy statutes. This provision currently does
not apply to the legislative branch. Reiterating the
recommendations made in the 1996, 1998, 2000 and 2006 Section
102(b) reports, the Board advises that the rights and
protections against discrimination on this basis should be
applied to employing offices within the legislative branch.
Prohibit Discharge of Employees Who Are or Have Been Subject
to Garnishment (15 U.S.C. Sec. 1674(A))
Section 1674(a) of title 15 of the U.S. Code prohibits
discharge of any employee because his or her earnings ``have
been subject to garnishment for any one indebtedness.'' This
section is limited to private employers, so it currently has
no application to the legislative branch. For the reasons set
forth in the 1996, 1998, 2000 and 2006 Section 102(b)
Reports, the Board recommends that the rights and protections
against discrimination on this basis should be applied to
employing offices within the legislative branch.
Provide Whistleblower Protections to the Legislative Branch
Civil service law provides broad protection to
whistleblowers in the executive branch to safeguard workers
against reprisal for reporting violations of laws, rules, or
regulations, gross mismanagement, gross waste of funds, abuse
of authority, or a substantial and specific danger to public
health or safety. In the private sector, whistleblowers also
are often protected by provisions of specific federal laws.
However, these provisions do not apply to the legislative
branch. The OCWR has received a number of inquiries from
congressional employees concerned about the lack of
whistleblower protections. 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 by uncovering waste and
fraud and safeguarding the budget.
The Board has recommended in its previous Section 102(b)
reports and continues to recommend that Congress provide
whistleblower reprisal protections to legislative branch
employees comparable to that provided to executive branch
employees under 5 U.S.C. Sec. 2302(b)(8), and 5 U.S.C.
Sec. 1221. Additionally, as discussed below, the Board
recommends that the Office also be granted investigatory and
prosecutorial authority over whistleblower reprisal
complaints, by incorporating into the CAA the authority
granted to the Office of Special Counsel, which investigates
and prosecutes claims of whistleblower reprisal in the
executive branch.
Provide Subpoena Authority to Obtain Information Needed for
Safety & Health Investigations and Require Records To Be
Kept of Workplace Injuries and Illnesses
The CAA applies the broad protections of section 5 of the
Occupational Safety and Health Act (OSHAct) to the
congressional workplace. The OCWR enforces the OSHAct in the
legislative branch much in the same way the Secretary of
Labor enforces the OSHAct in the private sector. Under the
CAA, the OCWR is required to conduct safety and health
inspections of covered employing offices at least once each
Congress and in response to any request, and to provide
employing offices with technical assistance to comply with
the OSHAct's requirements. But Congress and its agencies are
still exempt from critical OSHAct requirements imposed upon
American businesses. Under the CAA, employing offices in the
legislative branch are not subject to investigative subpoenas
to aid in inspections as are private sector employers under
the OSHAct. Similarly, Congress exempted itself from the
OSHAct's recordkeeping requirements pertaining to workplace
injuries and illnesses that apply to the private sector. The
Board recommends that legislative branch employing offices be
subject to the investigatory subpoena provisions contained in
OSHAct Sec. 8(b) and that legislative branch employing
offices be required to keep records of workplace injuries and
illnesses under OSHAct Sec. 8(c), 29 U.S.C. Sec. 657(c).
Adopt Recordkeeping Requirements Under Federal Workplace
Rights Laws
The Board, in several Section 102(b) reports, has
recommended and continues to recommend that Congress adopt
all recordkeeping requirements under Federal workplace rights
laws, including title VII. Although some employing offices in
the legislative branch keep personnel records, there are no
legal requirements under the CAA to do so.
Endnotes
1. The Board has long advocated for legislation granting the
OCWR General Counsel the authority to investigate and
prosecute complaints of discrimination, harassment and
reprisal in order to assist victims and to improve the
adjudicatory process under the CAA. As discussed in this
Report, the Reform Act establishes new procedures that are
also clearly intended to further these policy goals. Under
these circumstances, the Board believes that the best course
of action is to evaluate the efficacy of the new Reform Act
procedures once they have been implemented before revisiting
the issue of whether the OCRW General Counsel should be
granted such investigatory and prosecutorial authority.
Accordingly, this recommendation is not discussed further
below.
2. Pub. L. 110-181, Div. A, Title V Sec. 585(a)(2), (3)(A)-
(D) and Pub. L. 111-84, Div. A, Title V Sec. 565(a)(1)(B) and
(4).
[[Page S1443]]
3. U.S.C. Sec. 1302(3); House Committee on Armed Services, H.
Rpt. 110-146 (May 11, 2007), H. Rpt. 111-166 (June 18, 2009)
4. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
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