(Senate - April 12, 2011)

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[Pages S2389-S2398]
From the Congressional Record Online through the Government Publishing Office []


      By Mr. HARKIN (for himself, Mr. Leahy, Mr. Kerry, Mr. Akaka, Mrs. 
        Boxer, Mrs Murray, Mr. Lautenberg, and Mr. Merkley):
  S. 788. A bill to amend the Fair Labor Standards Act of 1938 to 
prohibit discrimination in the payment of wages on account of sex, 
race, or national origin, and for other purposes; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. HARKIN. Mr. President, today Americans observe Equal Pay Day--the 
date that marks the extra days that women must work into 2011 in order 
to equal what men earned in 2010. On this day, I am proud to introduce 
the Fair Pay Act of 2011, a bill I have introduced every Congress since 
  In 1963, Congress enacted the Equal Pay Act to end unfair 
discrimination against women in the workforce. While we have made 
progress toward this important goal, nearly half a century later, too 
many women still do not get paid what men do for the same or nearly the 
same work. On average, a woman makes only 77 cents for every dollar 
that a man makes. That translates into an average of $400,000 over her 
lifetime that a woman loses because of unequal pay practices. The 
circumstances are even worse for Latinas and women of color.
  This is wrong, it is unjust, and it threatens the economic security 
of our families. The fact is millions of Americans are dependent on a 
woman's pay-check just to get by, to put food on the table, pay for 
child care, and deal with rising health care bills. Two-thirds of 
mothers bring home at least a quarter of their family's earnings. In 
many families, a woman is the sole breadwinner.
  The evidence shows that discrimination accounts for much of the pay 
gap, and our laws have not done enough to prevent this discrimination 
from occurring. That is why passage of the Lilly Ledbetter Fair Pay Act 
was a critical first step, and why it is important to pass the Paycheck 
Fairness Act, introduced today by Senator Mikulski and Representative 
DeLauro, of which I am a proud original cosponsor. There are too many 
loopholes and barriers to effective enforcement of our existing laws. 
We need to strengthen penalties and give women the tools they need to 
confront discrimination.
  At the same time, we must recognize that the problem of unequal pay 
goes beyond insidious discrimination. As a nation, we unjustly devalue 
jobs traditionally performed by women, even when they require 
comparable skills to jobs traditionally performed by men.
  Today, millions of female-dominated jobs--for example, social 
workers, teachers, child care workers and nurses--are equivalent in 
skills, effort, responsibility and working conditions to similar jobs 
dominated by men. But, the female-dominated jobs pay significantly 
less. This is inexplicable. Why is a housekeeper worth less than a 
janitor? Why is a parking meter reader worth less than an electrical 
meter reader? Why is a social worker worth less than a probation 
  To address this more subtle, deep-rooted discrimination, today I am 
joining with Representative Eleanor Holmes Norton to introduce the Fair 
Pay Act, which will ensure that employers provide equal pay for jobs 
that are equivalent in skill, effort, responsibility and working 
  This important legislation would also require employers to publicly 
disclose their job categories and their pay scales, without requiring 
specific information on individual employees. If we give women 
information about what their male colleagues are earning, they can 
negotiate a better deal for themselves in the workplace.
  Right now, women who believe they are the victim of pay 
discrimination must file a lawsuit and endure a drawn-out legal 
discovery process to find out whether they make less than the man 
working beside them. With pay statistics readily available, this 
expensive process could be avoided.
  The number of lawsuits would surely go down if employees could see up 
front whether they are being treated fairly. In fact, I once asked 
Lilly Ledbetter: if the Fair Pay Act had been law, would it have 
averted her wage discrimination case? She said that with the 
information about pay scales that the bill provides, she would have 
known that she was a victim of discrimination and could have tried to 
address the problem sooner, rather than suffering a lifelong drop in 
her earnings and a trip all the way to the Supreme Court to try to make 
things right.
  On this Equal Pay Day, let us make sure that what happened to Lilly 
never happens again by recommitting to eliminate discrimination in the 
workplace and make equal pay for equal work a reality. America's 
working women and the families that rely on them deserve fairness on 
the job. Hopefully, soon, we can achieve true equality in the workplace 
so there is no need to commemorate equal pay day any more.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

[[Page S2390]]

                                 S. 788

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       (a) Short Title.--This Act may be cited as the ``Fair Pay 
     Act of 2011''.
       (b) Reference.--Except as provided in section 8, whenever 
     in this Act an amendment or repeal is expressed in terms of 
     an amendment to, or repeal of, a section or other provision, 
     the reference shall be considered to be made to a section or 
     other provision of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 201 et seq.).

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Wage rate differentials exist between equivalent jobs 
     segregated by sex, race, and national origin in Government 
     employment and in industries engaged in commerce or in the 
     production of goods for commerce.
       (2) The existence of such wage rate differentials--
       (A) depresses wages and living standards for employees 
     necessary for their health and efficiency;
       (B) prevents the maximum utilization of the available labor 
       (C) tends to cause labor disputes, thereby burdening, 
     affecting, and obstructing commerce;
       (D) burdens commerce and the free flow of goods in 
     commerce; and
       (E) constitutes an unfair method of competition.
       (3) Discrimination in hiring and promotion has played a 
     role in maintaining a segregated work force.
       (4) Many women and people of color work in occupations 
     dominated by individuals of their same sex, race, and 
     national origin.
       (5)(A) In 2009, a woman in the United States working in a 
     full-time, year-round job earned 77 cents for every dollar 
     earned by a man working in a full-time, year-round job.
       (B) A 2007 study found that - even when accounting for key 
     factors generally known to influence earnings such as race, 
     educational attainment, and experience - nearly half (49.3 
     percent) of the pay gap can be explained by differences in 
     the industries and occupations that men and women work in, 
     and 41 percent of the pay gap cannot be accounted for but may 
     be partially explained by discrimination in the workplace.
       (6) Section 6(d) of the Fair Labor Standards Act of 1938 
     prohibits discrimination in compensation for ``equal work'' 
     on the basis of sex.
       (7) Artificial barriers to the elimination of 
     discrimination in compensation based upon sex, race, and 
     national origin continue to exist more than 4 decades after 
     the passage of section 6(d) of the Fair Labor Standards Act 
     of 1938, the Equal Pay Act of 1963, and the Civil Rights Act 
     of 1964 (42 U.S.C. 2000a et seq.). Elimination of such 
     barriers would have positive effects, including--
       (A) providing a solution to problems in the economy created 
     by discrimination through wage rate differentials;
       (B) substantially reducing the number of working women and 
     people of color earning low wages, thereby reducing the 
     dependence on public assistance; and
       (C) promoting stable families by enabling working family 
     members to earn a fair rate of pay.


       (a) Amendment.--Section 6 (29 U.S.C. 206) is amended by 
     adding at the end the following:
       ``(h)(1)(A) Except as provided in subparagraph (B), no 
     employer having employees subject to any provision of this 
     section shall discriminate, within any establishment in which 
     such employees are employed, between employees on the basis 
     of sex, race, or national origin by paying wages to employees 
     in such establishment in a job that is dominated by employees 
     of a particular sex, race, or national origin at a rate less 
     than the rate at which the employer pays wages to employees 
     in such establishment in another job that is dominated by 
     employees of the opposite sex or of a different race or 
     national origin, respectively, for work on equivalent jobs.
       ``(B) Nothing in subparagraph (A) shall prohibit the 
     payment of different wage rates to employees where such 
     payment is made pursuant to--
       ``(i) a seniority system;
       ``(ii) a merit system;
       ``(iii) a system that measures earnings by quantity or 
     quality of production; or
       ``(iv) a differential based on a bona fide factor other 
     than sex, race, or national origin, such as education, 
     training, or experience, except that this clause shall apply 
     only if--
       ``(I) the employer demonstrates that--
       ``(aa) such factor--

       ``(AA) is job-related with respect to the position in 
     question; or
       ``(BB) furthers a legitimate business purpose, except that 
     this item shall not apply if the employee demonstrates that 
     an alternative employment practice exists that would serve 
     the same business purpose without producing such differential 
     and that the employer has refused to adopt such alternative 
     practice; and

       ``(bb) such factor was actually applied and used reasonably 
     in light of the asserted justification; and
       ``(II) upon the employer succeeding under subclause (I), 
     the employee fails to demonstrate that the differential 
     produced by the reliance of the employer on such factor is 
     itself the result of discrimination on the basis of sex, 
     race, or national origin by the employer.
       ``(C) The Equal Employment Opportunity Commission shall 
     issue guidelines specifying criteria for determining whether 
     a job is dominated by employees of a particular sex, race, or 
     national origin for purposes of subparagraph (B)(iv). Such 
     guidelines shall not include a list of such jobs.
       ``(D) An employer who is paying a wage rate differential in 
     violation of subparagraph (A) shall not, in order to comply 
     with the provisions of such subparagraph, reduce the wage 
     rate of any employee.
       ``(2) No labor organization or its agents representing 
     employees of an employer having employees subject to any 
     provision of this section shall cause or attempt to cause 
     such an employer to discriminate against an employee in 
     violation of paragraph (1)(A).
       ``(3) For purposes of administration and enforcement of 
     this subsection, any amounts owing to any employee that have 
     been withheld in violation of paragraph (1)(A) shall be 
     deemed to be unpaid minimum wages or unpaid overtime 
     compensation under this section or section 7.
       ``(4) In this subsection:
       ``(A) The term `labor organization' means any organization 
     of any kind, or any agency or employee representation 
     committee or plan, in which employees participate and that 
     exists for the purpose, in whole or in part, of dealing with 
     employers concerning grievances, labor disputes, wages, rates 
     of pay, hours of employment, or conditions of work.
       ``(B) The term `equivalent jobs' means jobs that may be 
     dissimilar, but whose requirements are equivalent, when 
     viewed as a composite of skills, effort, responsibility, and 
     working conditions.''.
       (b) Conforming Amendment.--Section 13(a) (29 U.S.C. 213(a)) 
     is amended in the matter before paragraph (1) by striking 
     ``section 6(d)'' and inserting ``sections 6 (d) and (h)''.


       Section 15(a) (29 U.S.C. 215(a)) is amended--
       (1) by striking the period at the end of paragraph (5) and 
     inserting a semicolon; and
       (2) by adding after paragraph (5) the following:
       ``(6) to discriminate against any individual because such 
     individual has opposed any act or practice made unlawful by 
     section 6(h) or because such individual made a charge, 
     testified, assisted, or participated in any manner in an 
     investigation, proceeding, or hearing to enforce section 
     6(h); or
       ``(7) to discharge or in any other manner discriminate 
     against, coerce, intimidate, threaten, or interfere with any 
     employee or any other person because the employee inquired 
     about, disclosed, compared, or otherwise discussed the 
     employee's wages or the wages of any other employee, or 
     because the employee exercised, enjoyed, aided, or encouraged 
     any other person to exercise or enjoy any right granted or 
     protected by section 6(h).''.

     SEC. 5. REMEDIES.

       (a) Enhanced Penalties.--Section 16(b) (29 U.S.C. 216(b)) 
     is amended--
       (1) by inserting after the first sentence the following: 
     ``Any employer who violates subsection (d) or (h) of section 
     6 shall additionally be liable for such compensatory or 
     punitive damages as may be appropriate, except that the 
     United States shall not be liable for punitive damages.'';
       (2) in the sentence beginning ``An action to'', by striking 
     ``either of the preceding sentences'' and inserting ``any of 
     the preceding sentences of this subsection'';
       (3) in the sentence beginning ``No employees'', by striking 
     ``No employees'' and inserting ``Except with respect to class 
     actions brought under subsection (f), no employee'';
       (4) in the sentence beginning ``The court in'', by striking 
     ``in such action'' and inserting ``in any action brought to 
     recover the liability prescribed in any of the preceding 
     sentences of this subsection''; and
       (5) by striking ``section 15(a)(3)'' each place it occurs 
     and inserting ``paragraphs (3), (6), and (7) of section 
       (b) Action by Secretary.--Section 16(c) (29 U.S.C. 216(c)) 
     is amended--
       (1) in the first sentence--
       (A) by inserting ``or, in the case of a violation of 
     subsection (d) or (h) of section 6, additional compensatory 
     or punitive damages,'' before ``and the agreement''; and
       (B) by inserting before the period the following: ``, or 
     such compensatory or punitive damages, as appropriate'';
       (2) in the second sentence, by inserting before the period 
     the following: ``and, in the case of a violation of 
     subsection (d) or (h) of section 6, additional compensatory 
     or punitive damages''; and
       (3) in the third sentence, by striking ``the first 
     sentence'' and inserting ``the first or second sentence''.
       (c) Fees.--Section 16 (29 U.S.C. 216) is amended by adding 
     at the end the following:
       ``(f) In any action brought under this section for a 
     violation of section 6(h), the court shall, in addition to 
     any other remedies awarded to the prevailing plaintiff or 
     plaintiffs, allow expert fees as part of the costs. Any such 
     action may be maintained as a class action as provided by the 
     Federal Rules of Civil Procedure.''.

     SEC. 6. RECORDS.

       (a) Records.--Section 11(c) (29 U.S.C. 211(c)) is amended--
       (1) by inserting ``(1)'' after ``(c)''; and
       (2) by adding at the end the following:
       ``(2) Every employer subject to section 6(h) shall preserve 
     records that document and

[[Page S2391]]

     support the method, system, calculations, and other bases 
     used by the employer in establishing, adjusting, and 
     determining the wage rates paid to the employees of the 
     employer. Every employer subject to section 6(h) shall 
     preserve such records for such periods of time, and shall 
     make such reports from the records to the Equal Employment 
     Opportunity Commission, as shall be prescribed by the Equal 
     Employment Opportunity Commission by regulation or order as 
     necessary or appropriate for the enforcement of the 
     provisions of section 6(h) or any regulation promulgated 
     pursuant to section 6(h).''.
       (b) Small Business Exemptions.--Section 11(c) (as amended 
     by subsection (a)) is further amended by adding at the end 
     the following:
       ``(3) Every employer subject to section 6(h) that has 25 or 
     more employees on any date during the first or second year 
     after the effective date of this paragraph, or 15 or more 
     employees on any date during any subsequent year after such 
     second year, shall, in accordance with regulations 
     promulgated by the Equal Employment Opportunity Commission 
     under paragraph (8), prepare and submit to the Equal 
     Employment Opportunity Commission for the year involved a 
     report signed by the president, treasurer, or corresponding 
     principal officer, of the employer that includes information 
     that discloses the wage rates paid to employees of the 
     employer in each classification, position, or job title, or 
     to employees in other wage groups employed by the employer, 
     including information with respect to the sex, race, and 
     national origin of employees at each wage rate in each 
     classification, position, job title, or other wage group.''.
       (c) Protection of Confidentiality.--Section 11(c) (as 
     amended by subsections (a) and (b)) is further amended by 
     adding at the end the following:
       ``(4) The rules and regulations promulgated by the Equal 
     Employment Opportunity Commission under paragraph (8), 
     relating to the form of such a report, shall include 
     requirements to protect the confidentiality of employees, 
     including a requirement that the report shall not contain the 
     name of any individual employee.''.
       (d) Use; Inspections; Examination; Regulations.--Section 
     11(c) (as amended by subsections (a) through (c)) is further 
     amended by adding at the end the following:
       ``(5) The Equal Employment Opportunity Commission may 
     publish any information and data that the Equal Employment 
     Opportunity Commission obtains pursuant to the provisions of 
     paragraph (3). The Equal Employment Opportunity Commission 
     may use the information and data for statistical and research 
     purposes, and compile and publish such studies, analyses, 
     reports, and surveys based on the information and data as the 
     Equal Employment Opportunity Commission may consider 
       ``(6) In order to carry out the purposes of this Act, the 
     Equal Employment Opportunity Commission shall by regulation 
     make reasonable provision for the inspection and examination 
     by any person of the information and data contained in any 
     report submitted to the Equal Employment Opportunity 
     Commission pursuant to paragraph (3).
       ``(7) The Equal Employment Opportunity Commission shall by 
     regulation provide for the furnishing of copies of reports 
     submitted to the Equal Employment Opportunity Commission 
     pursuant to paragraph (3) to any person upon payment of a 
     charge based upon the cost of the service.
       ``(8) The Equal Employment Opportunity Commission shall 
     issue rules and regulations prescribing the form and content 
     of reports required to be submitted under paragraph (3) and 
     such other reasonable rules and regulations as the Equal 
     Employment Opportunity Commission may find necessary to 
     prevent the circumvention or evasion of such reporting 
     requirements. In exercising the authority of the Equal 
     Employment Opportunity Commission under paragraph (3), the 
     Equal Employment Opportunity Commission may prescribe by 
     general rule simplified reports for employers for whom the 
     Equal Employment Opportunity Commission finds that because of 
     the size of the employers a detailed report would be unduly 

                   PROGRAM; REPORT TO CONGRESS.

       Section 4(d) (29 U.S.C. 204(d)) is amended by adding at the 
     end the following:
       ``(4) The Equal Employment Opportunity Commission shall 
     conduct studies and provide information and technical 
     assistance to employers, labor organizations, and the general 
     public concerning effective means available to implement the 
     provisions of section 6(h) prohibiting wage rate 
     discrimination between employees performing work in 
     equivalent jobs on the basis of sex, race, or national 
     origin. Such studies, information, and technical assistance 
     shall be based on and include reference to the objectives of 
     such section to eliminate such discrimination. In order to 
     achieve the objectives of such section, the Equal Employment 
     Opportunity Commission shall carry on a continuing program of 
     research, education, and technical assistance including--
       ``(A) conducting and promoting research with the intent of 
     developing means to expeditiously correct the wage rate 
     differentials described in section 6(h);
       ``(B) publishing and otherwise making available to 
     employers, labor organizations, professional associations, 
     educational institutions, the various media of communication, 
     and the general public the findings of studies and other 
     materials for promoting compliance with section 6(h);
       ``(C) sponsoring and assisting State and community 
     informational and educational programs; and
       ``(D) providing technical assistance to employers, labor 
     organizations, professional associations and other interested 
     persons on means of achieving and maintaining compliance with 
     the provisions of section 6(h).
       ``(5) The report submitted biennially by the Secretary to 
     Congress under paragraph (1) shall include a separate 
     evaluation and appraisal regarding the implementation of 
     section 6(h).''.


       (a) Congressional Employees.--
       (1) Application.--Section 203(a)(1) of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1313(a)(1)) is amended--
       (A) by striking ``subsections (a)(1) and (d) of section 6'' 
     and inserting ``subsections (a)(1), (d), and (h) of section 
     6''; and
       (B) by striking ``206 (a)(1) and (d)'' and inserting ``206 
     (a)(1), (d), and (h)''.
       (2) Remedies.--Section 203(b) of such Act (2 U.S.C. 
     1313(b)) is amended by inserting before the period the 
     following: ``or, in an appropriate case, under section 16(f) 
     of such Act (29 U.S.C. 216(f))''.
       (b) Executive Branch Employees.--
       (1) Application.--Section 413(a)(1) of title 3, United 
     States Code, as added by section 2(a) of the Presidential and 
     Executive Office Accountability Act (Public Law 104-331; 110 
     Stat. 4053), is amended by striking ``subsections (a)(1) and 
     (d) of section 6'' and inserting ``subsections (a)(1), (d), 
     and (h) of section 6''.
       (2) Remedies.--Section 413(b) of such title is amended by 
     inserting before the period the following: ``or, in an 
     appropriate case, under section 16(f) of such Act''.


       The amendments made by this Act shall take effect 1 year 
     after the date of enactment of this Act.
      By Mr. AKAKA:
  S. 790. A bill to provide for mandatory training for Federal 
Government supervisors and the assessment of management competencies; 
to the Committee on Homeland Security and Governmental Affairs.
  Mr. AKAKA. Mr. President, I rise today to reintroduce the Federal 
Supervisor Training Act.
  Properly trained supervisors are critical to the federal government's 
ability to efficiently and effectively provide essential services to 
the American people. First-level supervisors have close contact and 
frequent interaction with our Federal employees and thus have the most 
significant impact on employee performance.
  Investing in first-level supervision could yield enormous positive 
returns. Research has shown that supervisory skills strongly predict 
agency performance and that improving the quality of first-level 
supervision is one of the most effective ways to improve an agency's 
performance. According to a 2010 Merit Systems Protection Board report 
entitled ``A Call to Action: Improving First-Level Supervision of 
Federal Employees,'' the fastest and most direct way to strengthen 
Federal workforce performance is to improve the supervision employees 
  For managers and supervisors in the Federal Government, few things 
are more important than training. Supervisor training programs improve 
communication, promote stronger manager-employee relationships, reduce 
conflict, and cultivate efficiency.
  Conversely, poor supervision can damage agency performance and 
employee morale, which undermines agency performance and wastes money. 
The National Academy of Public Administration reported that while it is 
difficult to quantify the precise cost of supervisory deficiencies, 
even a small deficiency could result in a loss of billions of dollars, 
and that without solid programs for developing first level supervisors, 
agencies pay an enormous price. Simply stated, investing in supervisory 
training in the Federal Government now will save us money later.
  The need for effective supervisor training is becoming even more 
pressing given the large number of Federal employees who are expected 
to retire in the next few years. The Office of Personnel Management 
estimates that by the year 2014, approximately 53 percent of permanent 
full-time Federal employees will be eligible to retire, and the 
majority of those eligible will retire. Because supervisors tend to be 
older and have more years of service than non-supervisors, supervisors 
are likely to retire at faster rates than non-supervisors. In light of 
the expected retirement wave, training a new

[[Page S2392]]

generation of federal supervisors is a matter of national urgency.
  The Federal Supervisor Training Act will require that new supervisors 
receive training on specified topics, including whistleblower and anti-
discrimination rights, during their initial 12 months on the job, 
unless the Office of Personnel Management grants an extension to their 
employing agency. Supervisors will be required to update their training 
once every three years. Current supervisors will have three years to 
obtain their initial training. This bill will also require agencies to 
implement a program whereby experienced supervisors mentor new 
  In addition, the Federal Supervisor Training Act will require the 
Office of Personnel Management to issue guidance to agencies on 
competencies supervisors are expected to meet in order to effectively 
supervise employees. Based on this guidance, or any additional 
competencies established by employing agencies, each agency will be 
required to assess the performance of its supervisors.
  This bill builds upon supervisor training requirements under the 
Federal Workforce Flexibility Act of 2004, which directs agencies to 
establish training programs that develop supervisors, and to establish 
programs to provide additional training to supervisors in three areas--
dealing with poor performers, mentoring employees and improving their 
performance, and conducting performance appraisals.
  I am delighted that this bill has received support from the 
Government Managers Coalition, which represents members of the Senior 
Executives Association, the Federal Managers Association, the 
Professional Managers Association, the Federal Aviation Administration 
Managers Association, and the National Council of Social Security 
Management Associations. Additionally, it is supported by some of the 
largest federal sector labor organizations, including the American 
Federation of Government Employees, the National Treasury Employees 
Union, the National Federation of Federal Employees, and the 
International Federation of Professional and Technical Engineers. 
Finally, this bill is supported by the Partnership for Public Service, 
a non-profit, non-partisan organization which works to find ways to 
improve the government's ability to provide services to citizens. I 
believe the broad support from management associations, labor 
organizations, and outside good government groups demonstrates the need 
for this bill.
  I urge my colleagues to support this important legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 790

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Federal Supervisor Training 
     Act of 2011''.


       (a) In General.--Section 4121 of title 5, United States 
     Code, is amended--
       (1) by inserting before ``In consultation with'' the 
       ``(a) In this section, the term `supervisor' means--
       ``(1) a supervisor as defined under section 7103(a)(10);
       ``(2) a management official as defined under section 
     7103(a)(11); and
       ``(3) any other employee as the Director of the Office of 
     Personnel Management may by regulation prescribe.'';
       (2) by striking ``In consultation with'' and inserting 
     ``(b) Under operating competencies prescribed by, and in 
     consultation with,''; and
       (3) by striking paragraph (2) (of the matter redesignated 
     as subsection (b) as a result of the amendment under 
     paragraph (2) of this subsection) and inserting the 
       ``(2)(A) a program to provide training to supervisors on 
     actions, options, and strategies a supervisor may use in--
       ``(i) developing and discussing relevant goals and 
     objectives together with the employee, communicating and 
     discussing progress relative to performance goals and 
     objectives and conducting performance appraisals;
       ``(ii) mentoring and motivating employees and improving 
     employee performance and productivity;
       ``(iii) fostering a work environment characterized by 
     fairness, respect, equal opportunity, and attention paid to 
     the merit of the work of employees;
       ``(iv) effectively managing employees with unacceptable 
       ``(v) addressing reports of a hostile work environment, 
     reprisal, or harassment of, or by, another supervisor or 
       ``(vi) meeting supervisor competencies established by the 
     Office of Personnel Management or the employing agency of the 
     supervisor; and
       ``(vii) otherwise carrying out the duties or 
     responsibilities of a supervisor;
       ``(B) a program to provide training to supervisors on the 
     prohibited personnel practices under section 2302 
     (particularly with respect to such practices described under 
     subsection (b) (1) and (8) of that section), employee 
     collective bargaining and union participation rights, and the 
     procedures and processes used to enforce employee rights; and
       ``(C) a program under which experienced supervisors mentor 
     new supervisors by--
       ``(i) transferring knowledge and advice in areas such as 
     communication, critical thinking, responsibility, 
     flexibility, motivating employees, teamwork, leadership, and 
     professional development; and
       ``(ii) pointing out strengths and areas for development.
       ``(c) Training in programs established under subsection 
     (b)(2) (A) and (B) shall be--
       ``(1) interactive training which may include computer-based 
     training; and
       ``(2) to the extent practicable as determined by the head 
     of the agency, training that is instructor-based.
       ``(d)(1)(A) Not later than 1 year after the date on which 
     an individual is appointed to the position of supervisor, 
     that individual shall be required to have completed each 
     program established under subsection (b)(2).
       ``(B) The Director of the Office of Personnel Management 
     may establish and administer procedures under which the head 
     of an agency may extend the 1-year period described under 
     subparagraph (A) with respect to an individual.
       ``(2) After completion of a program under subsection (b)(2) 
     (A) and (B), each supervisor shall be required to complete a 
     program under subsection (b)(2) (A) and (B) at least once 
     every 3 years.
       ``(3) Each program established under subsection (b)(2) 
     shall include provisions under which credit shall be given 
     for periods of similar training previously completed.
       ``(4) Each agency shall measure the effectiveness of 
     training programs established under subsection (b)(2).
       ``(e) Notwithstanding section 4118(c), the Director of the 
     Office of Personnel Management shall prescribe regulations to 
     carry out this section, including the monitoring of agency 
     compliance with this section. Regulations prescribed under 
     this subsection shall include measures by which to assess the 
     effectiveness of agency supervisor training programs.''.
       (b) Report on Extensions for Training Requirements.--
       (1) Appropriate congressional committees.--In this 
     subsection, the term ``appropriate congressional committees'' 
       (A) the Committee on Homeland Security and Governmental 
     Affairs of the Senate; and
       (B) the Committee on Oversight and Government Reform of the 
     House of Representatives.
       (2) Report.--Not later than 2 years after the date of 
     enactment of this Act and annually thereafter, the Director 
     of the Office of Personnel Management shall submit a report 
     with respect to the preceding fiscal year to the appropriate 
     congressional committees on--
       (A) the number of extensions granted under section 
     4121(d)(1)(B) of title 5, United States Code, as added by 
     subsection (a) of this section; and
       (B) the number of individuals completing the requirements 
     of section 4121(d)(1)(A) of title 5, United States Code, as 
     added by subsection (a) of this section.
       (c) Regulations.--Not later than 1 year after the date of 
     enactment of this Act, the Director of the Office of 
     Personnel Management shall prescribe regulations under 
     section 4121(e) of title 5, United States Code, as added by 
     subsection (a) of this section.
       (d) Effective Date and Application.--
       (1) In general.--The amendments made by this section shall 
     take effect 1 year after the date of enactment of this Act 
     and apply to--
       (A) each individual appointed to the position of a 
     supervisor, as defined under section 4121(a) of title 5, 
     United States Code (as added by subsection (a) of this 
     section), on or after that effective date; and
       (B) each individual who is employed in the position of a 
     supervisor on that effective date as provided under paragraph 
       (2) Supervisors on effective date.--Each individual who is 
     employed in the position of a supervisor on the effective 
     date of this section and is not subject to an extension under 
     section 4121(d)(1)(B) of title 5, United States Code (as 
     added by subsection (a) of this section) shall be required 
       (A) complete each program established under section 
     4121(b)(2) of title 5, United States Code (as added by 
     subsection (a) of this section), not later than 3 years after 
     the effective date of this section; and
       (B) complete programs every 3 years thereafter in 
     accordance with section 4121(d) (2) and (3) of that title (as 
     added by subsection (a) of this section).


       (a) In General.--Chapter 43 of title 5, United States Code, 
     is amended--

[[Page S2393]]

       (1) by redesignating section 4305 as section 4306; and
       (2) inserting after section 4304 the following:

     ``Sec. 4305. Management competencies

       ``(a) In this section, the term `supervisor' means--
       ``(1) a supervisor as defined under section 7103(a)(10);
       ``(2) a management official as defined under section 
     7103(a)(11); and
       ``(3) any other employee as the Director of the Office of 
     Personnel Management may by regulation prescribe.
       ``(b) The Director of the Office of Personnel Management 
     shall issue guidance to agencies on competencies supervisors 
     are expected to meet in order to effectively manage, and be 
     accountable for managing, the performance of employees.
       ``(c) Based on guidance issued under subsection (b) and on 
     any additional competencies developed by an agency, each 
     agency shall assess the performance of the supervisors and 
     the overall capacity of the supervisors in that agency.
       ``(d) Every year, or on any basis requested by the Director 
     of the Office of Personnel Management, each agency shall 
     submit a report to the Office of Personnel Management on the 
     progress of the agency in implementing this section, 
     including measures used to assess program effectiveness.''.
       (b) Technical and Conforming Amendments.--
       (1) Table of sections.--The table of sections for chapter 
     43 of title 5, United States Code, is amended by striking the 
     item relating to section 4305 and inserting the following:

``4305. Management competencies.
``4306. Regulations.''.

       (2) Reference.--Section 4304(b)(3) of title 5, United 
     States Code, is amended by striking ``section 4305'' and 
     inserting ``section 4306''.
      By Mr. UDALL of New Mexico (for himself, Mr. Bingaman, Mr. 
        Bennet, Mr. Crapo, Mr. Udall of Colorado, and Mr. Risch):
  S. 791. A bill to amend the Radiation Exposure Compensation Act to 
improve compensation for workers involved in uranium mining, and for 
other purposes; to the Committee on the Judiciary.
  Mr. UDALL of New Mexico. Mr. President, I rise today to introduce the 
Radiation Exposure Compensation Act Amendments of 2011. The Radiation 
Exposure Compensation Act, known as RECA, was first passed in 1990 
after years of work and litigation. The act was later improved in 2000 
through amendments made by Congress, and today I am joined by my 
colleagues, Senators Bingaman, Bennet, Crapo, Mark Udall, and Risch, to 
once again improve the act through introduction of this legislation.
  This bill honors the individuals who unwittingly gave their health 
and even their lives to national efforts to develop uranium and a Cold 
War nuclear arsenal during the mid-20th century. Some Americans were 
sickened through exposure to aboveground atomic weapons tests, and 
others were exposed to heavy doses of radiation from working in the 
uranium mining industry. All the while, the government was slow to 
implement Federal protections. As a result, a generation of Americans 
who worked in the mines and lived near testing sites became sick with 
serious diseases like lung cancer and kidney disease.
  Much of the United States' uranium development and weapons testing 
occurred in New Mexico and the West. Mines and mills drew workers into 
rural communities. These workers, and much of the country, were unaware 
of the dangers of radiation exposure. As mining and milling continued 
and our national understanding of the dangers of radiation exposure 
developed, the Federal Government continued to fail to ensure that 
uranium workers and their families were safe from the hazards of 
exposure to radioactive materials. As a result, numerous illnesses and 
cancers began to emerge in the men and women who worked in the uranium 
mining industry and lived downwind of weapons testing sites.
  In my home State of New Mexico, the Pueblo of Laguna was home to the 
nation's largest open pit uranium mine. Additionally, many large and 
small mines and mill sites were opened within the Navajo Nation. In 
fact, much of the State's northwestern area is spackled with hundreds 
of abandoned uranium mines. Workers from across the State came to these 
mines and mills, especially from the economically struggling 
communities of rural New Mexico.
  In the late '70s, my father, Stewart Udall, took up the fight for 
these workers. In 1979, my father filed 32 claims against the 
Department of Energy on behalf of widows of deceased Navajo uranium 
miners. In many ways, this marked the beginning of the fight for 
compensation for all uranium workers. I remember working those years 
with my whole family to collect information and push for recognition. 
It was a family effort to fight injustice, and for me, it continues to 
be a family priority. Ten years later, the original RECA legislation 
was passed in the United States Congress, giving a level of restitution 
to sick miners and millers, as well as individuals downwind of nuclear 
tests. The RECA legislation was later expanded upon through an 
amendment adopted in 2000.

  The legislation we introduce today takes the next step to address the 
remaining shortfalls of the Radiation Exposure Compensation Act.
  Specifically, the bill would include post-1971 uranium workers as 
qualified claimants. While the Federal Government ceased purchase of 
domestic uranium in 1971, implementation of Federal work safety 
standards was slow and regulation of mines was poor. As a result, 
thousands of miners and millers were never made aware of the dangers of 
the yellow cake they handled on a regular basis. In recently conducted 
surveys, the majority of uranium workers from this time period report 
that they did not have showers or washbasins in the mines where they 
worked. They often took contaminated clothing home for laundering, 
unaware of the hazards and with no other option for cleaning. Many also 
report that ventilation to prevent unnecessary exposure was not 
provided in their work areas.
  Today, these workers continue to suffer and die from illnesses 
related to radiation exposure. But because their employment dates began 
after 1971, the cut-off included in the original RECA legislation, they 
have no opportunity for compensation. Our bill changes that. If the 
measure passes, individuals working between 1971 and 1990 will qualify 
to claim compensation for exposure-related diseases.
  The bill we're introducing today would also expand the geographic 
areas that qualify for downwind compensation to include New Mexico, 
Idaho, Montana, Colorado, and Guam. And for the first time, the bill 
recognizes downwind exposure from the original atomic weapons test 
site--the Trinity Site in New Mexico.
  Those exposed as a result of aboveground weapons tests would receive 
increased compensation as a result of passage of the bill being 
introduced today. This would make their compensation consistent with 
their counterparts who worked in mines and mills.
  Comprehensive epidemiological research on the impacts of uranium 
development on communities and families of uranium workers is long 
overdue. Our legislation would authorize funding for the National 
Institute of Environmental Health Sciences to award grants to 
universities and non-profits to carry out such research.
  Many who have suffered as a result of cold war uranium and weapons 
development do not have the documentation to prove their exposure. 
Often, mines and mills did not keep proper documentation of their 
workers, and many communities impacted do not have a tradition of 
keeping birth and marriage certification. The RECA Amendments of 2011 
would broaden the use of affidavits to substantiate employment history 
and residence in an affected downwind area.
  Employees would also be able to combine their time worked in multiple 
positions to meet the work-time requirements for compensation in the 
original RECA legislation if today's legislation is adopted.
  Finally, this legislation would allow miners to be compensated for 
kidney disease. And it would allow core drillers to join miners, 
millers, and ore transporters on the current list of uranium workers 
who qualify for compensation under the Act.
  For more than two decades now, the United States has tried to 
compensate in some way for the sickness and loss of life that came as a 
result of cold war era uranium and weapons development. Much has been 
accomplished, but today we are taking the next step to close

[[Page S2394]]

this sad chapter in history and to improve the reach of compassionate 
compensation to those Americans who have suffered, but have not 
qualified under RECA in its current form.
  Thousands continue to suffer from deadly illnesses as a result of 
radiation exposure, but many do not qualify for compensation because 
they began employment after 1971, or because they worked for a short 
time in several different mines and mills. Others qualify for a level 
of compensation, but still struggle to pay the expensive medical bills 
associated with their illnesses.
  I look forward to working with my colleagues to recognize these 
individuals and expand RECA to include all who are justified in 
receiving radiation exposure compensation, and I urge the Judiciary 
Committee, the committee of jurisdiction, to expedite hearing on this 
important piece of legislation.
      By Mr. PRYOR:
  S. 792. A bill to authorize the waiver of certain debts relating to 
assistance provided to individuals and households since 2005; to the 
Committee on Homeland Security and Governmental Affairs.
  Mr. PRYOR. Mr. President, I want to talk just for a few minutes about 
an incident that is unfolding in Arkansas, and that I am sure is 
unfolding in other States as well.
  Less than 2 weeks ago, a 73-year-old woman and her husband received a 
letter from FEMA, where FEMA demanded that this couple pay back $27,000 
in FEMA assistance they had received 3 years earlier, and that they do 
so within 30 days or face penalties, interest, et cetera. Well, this 
was devastating news for her. These are Social Security recipients. 
They lost everything in a flood.
  But let me back up and tell the full story, and then tell the rest of 
the story. Three years ago, Arkansas had some floods on the White 
River, and the folks in the Mountain View area, some of them, 
experienced very severe flooding. FEMA actually came to this couple's 
house, walked around, and told them on the spot they were eligible to 
receive FEMA assistance for the flooding. The maximum you can receive 
is $30,000. So they filled out the paperwork.
  In fact, FEMA helped them do some of that, like I said, on the spot, 
while FEMA was visiting their home and looking at their property. FEMA 
assured her they would qualify for this assistance. So they filled out 
the paperwork and they went through the process.
  Apparently, at some point, there was even an appeal or some sort of 
clarification. So it went through the proper channels at FEMA. 
Remember, FEMA was there, they took pictures, and the whole deal. They 
verified the damage. So this couple received $27,000 in FEMA 
  They put every dime back into their home. This is a couple who 
basically lost almost all their worldly possessions in this flood. I 
talked to her a week or so ago, and she told me they were able to save 
a few items of glassware and a few keepsakes from the family, but 
basically everything was either washed away in the water or so caked 
with mud it was ruined during the flood. The $27,000 helped repair 
their home and make it habitable, but it didn't restore their home 
anywhere close to the condition it was before the flood. This was their 
dream home--their retirement home. They live right there on the White 
River. It is a beautiful part of the State.
  So they got this letter a couple of weeks ago. Now, bear in mind this 
flood happened 3 years ago--the flood happened 3 years ago--and they 
are now required, under the rules and regs and the law that FEMA works 
with, to pay all this money back. As I said before, this is a terrible 
  As it turns out, what happened is these folks, although they were 
assured by FEMA they were eligible, they were actually never qualified 
to receive this money. They didn't know that. They had FEMA in their 
living room telling them they were qualified and they should receive 
the money; that they met all the tests and standards and that is what 
this program was for, to help people like them. However, there was one 
technicality, and that was that the county in which they lived had not 
passed an ordinance to go into the FEMA flood insurance program. Here, 
again, FEMA should have known this.
  FEMA apparently went to some of the county meetings where it was 
discussed and voted down. But, nonetheless, FEMA assured these people 
they would be covered under this program.
  The irony of all this is that the couple, when they bought their home 
on the White River, one of the preconditions or requirements they set 
for themselves was they would purchase flood insurance. They had it for 
a number of years. They paid premiums for a number of years. They never 
experienced a flood, but they paid premiums for a number of years.
  Finally, the insurance company that offered the flood insurance got 
out of the business, and so they even went to the extent of going 
through Lloyds of London to get flood insurance. They paid a lot of 
money for a premium, but they, nonetheless, carried that as long as it 
was offered. Finally, it wasn't offered any longer, and the only thing 
left was the FEMA National Flood Insurance Program. But because the 
county had not done what they were supposed to do, this couple, 
therefore, was not eligible to receive the FEMA flood money--again, no 
fault of their own. They had done everything anybody could do. They had 
paid their premiums out of their pockets as long as they could, as long 
as they could find insurance, and as that was canceled over the years, 
the county hadn't come through. But, apparently, FEMA was actually 
there at the county meetings and knew, or should have known, this 
couple wasn't eligible. Yet they gave her this money, and now they want 
it all back with penalties and interest, et cetera.
  So I have filed the Disaster Assistance Recoupment Fairness Act, and 
we actually have it in two forms. We have it as a stand-alone measure, 
and we also have it as an amendment to the bill that is pending on the 
floor right now.
  The important point of this story is that all of the mistakes that 
were made were on FEMA's side of the equation. The couple in Arkansas 
made no mistakes. They followed the rules, went through the process, 
went through the hearings. There is no allegation of fraud or that the 
couple in any way misled anyone. They gave them the documents and did 
everything they were supposed to do. It was textbook. They did 
everything they were supposed to do, but FEMA is now coming back and 
asking for recoupment.
  So our bill will not give a blanket exception, but what it will do is 
give the FEMA Administrator the authority, under circumstances he deems 
fit, to waive the debt that is owed to the United States in cases where 
funds were distributed by a FEMA error, as in this case. Also, it gives 
them the discretion that they do not have under current Federal law.

  I met with Director Fugate on this a week or two ago, and actually we 
had a very constructive meeting. I think probably on a personal level 
he understands this. He feels bad about this. But he believes his hands 
are tied under the statute. I am not 100 percent sure they are but he 
says they are. He tried to be very helpful, very accommodating. I think 
he does want to work with all the parties involved to try to clean this 
up. But he says he does not have the authority.
  That is where this bill comes in. We wish to give the FEMA Director 
the authority to have some discretion on some of these hardship type 
cases, especially where the person who received the benefit did it 
purely by a FEMA error. Again, in their case, they put every dime of 
their recovery back into their home to have it livable. Otherwise they 
probably would have had to abandon their home or sell the property or 
whatever the case may have been.
  That is what we are asking of the Senate, if they would consider this 
at the proper time. I ask my colleagues to take a look at it. My guess 
is, since we have 35 households in our State that are receiving these 
types of letters from FEMA, these demand letters where they are giving 
a notice of debt to folks who have received money, my guess is if we 
have 35 in our State there are hundreds and maybe thousands around the 
country in a similar situation.
  Again, our bill is just for FEMA's mistakes. This is probably an 

[[Page S2395]]

of the cleanup from the previous FEMA administration. I think Director 
Fugate had nothing to do with this. It took them 3 years because there 
was a lawsuit in the meantime.
  What this is doing is creating a hardship for folks who had been 
playing by the rules. It gives FEMA the flexibility to do some of the 
cleanup in a way that doesn't harm ordinary citizens here in the United 
States. I ask my colleagues to take a look at it. I would be pleased to 
answer any questions. If anyone has those, they can always contact me 
in my office. What I wish to do is not call it up at this point or 
anything like that but maybe be in the queue and be available at 
sometime in the future.
      By Mr. LEAHY (for himself and Mr. Whitehouse):
  S. 794. A bill to amend the Internal Revenue Code of 1986 to disallow 
any deduction for punitive damages, and for other purposes; to the 
Committee on Finance.
  Mr. LEAHY. Mr. President, today I am introducing legislation that 
will stop businesses from deducting costs that result from their 
misconduct as a cost of doing business under our tax laws. Under 
current law, a corporation or individual business owner may deduct the 
cost of a punitive damage award paid to a victim as an ``ordinary'' 
business expense. This is wrong. It undermines one of the primary 
deterrent functions of our civil justice system, and American taxpayers 
should not subsidize this misconduct.
  Punitive damage awards serve in part to correct dangerous or unfair 
practices. These awards are reserved for the most extreme and harmful 
misconduct. Our legal history contains prominent examples of corporate 
misconduct that resulted in the deaths of Americans, and by virtue of 
our civil justice system was not only punished, but led to broad 
changes to improve the safety and security of American consumers. The 
justice system has and will continue to encourage the positive changes 
that cannot be brought about by regulation alone. But our current tax 
laws work against the well-established role of the justice system as a 
backstop to health and safety regulation.
  One year ago, the Deepwater Horizon drilling rig exploded, killing 11 
Americans and leading to the worst oil spill in American history. Just 
over a year ago, an explosion in the Upper Big Branch Mine in West 
Virginia claimed the lives of 29 miners. In both of these cases, I 
expect that all Americans, and particularly the family members of the 
victims, would be shocked to learn that any punitive damages that may 
result from these events will amount to a tax break for the 
corporations responsible.
  I was disgusted to learn that Transocean, the owner of the Deepwater 
Horizon, recently announced that it was giving ``safety bonuses'' to 
its executives. Maybe that company believes that the American people 
have forgotten about this tragedy. I have met with the families of the 
11 men killed, and I will never forget them. The tax treatment that the 
responsible companies will receive if we do not act will just add 
insult to injury.
  Let us also not forget Exxon's misconduct in 1989. I have chaired 
several hearings on Exxon's misconduct, which led to an ecological and 
human disaster that affects Alaskans even today. A jury awarded $5 
billion in punitive damages against Exxon for its actions, which 
devastated an entire region, the livelihoods of its people, and 
destroyed a way of life. For more than a decade Exxon fought this 
measure of accountability all the way to the United States Supreme 
Court. A divided Supreme Court invented a novel rule and held that in 
maritime cases, punitive damage awards could not exceed twice the 
amount of compensatory damages. I support Senator Whitehouse's wise 
legislation to overturn that Supreme Court decision, but some in 
Congress do not want corporate accountability. If we cannot muster the 
votes to make corporations that engage in such extreme misconduct 
accountable, we need to at least stop subsidizing it through our tax 
  Like so many Americans, I am weary of the preferential treatment that 
large corporations obtain at virtually every turn. It is disheartening 
to hear reports about enormously profitable corporations paying lower 
income tax rates than middle class American workers by exploiting 
loopholes or sheltering profits in foreign countries. It is 
unconscionable that big oil companies continue to be subsidized by 
taxpayers to the tune of billions of dollars each year, especially when 
Americans are facing increasingly high gasoline prices. I share the 
frustration of so many Americans who are making great sacrifices, yet 
who are not seeing their sacrifices shared by the most powerful in our 
society. As we approach the national tax filing deadline, I expect most 
Americans would agree that this punitive damages tax deduction is not 
only bad tax policy, but offensive to our basic notions of justice and 
fair play.
  In his fiscal year 2012 budget recommendations, President Obama and 
his administration requested an end to this deduction in the tax code. 
The Congressional Budget Office has estimated that doing so will result 
in increased revenues of $315 million over 10 years. As we collectively 
work to reduce the Federal deficit, it is important to recognize that 
increasing revenues will play an important part in this effort; 
particularly when those revenues are lost to a policy that is without 
any defensible justification.
  I hope all Senators will join me to protect American taxpayers. This 
legislation should be part of our bipartisan fight to reduce the 
national debt. When corporate wrongdoers can write off a significant 
portion of the financial impact of punitive damages, the incentives in 
our justice system that promote responsible business practices lose 
their force. These difficult financial times require us to close 
irresponsible tax loopholes. We can start with this one, which treats 
corporate misconduct as a cost of doing business.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 794

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Protecting American 
     Taxpayers from Misconduct Act''.


       (a) Disallowance of Deduction.--
       (1) In general.--Section 162(g) of the Internal Revenue 
     Code of 1986 is amended--
       (A) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively,
       (B) by striking ``If'' and inserting:
       ``(1) Treble damages.--If'', and
       (C) by adding at the end the following new paragraph:
       ``(2) Punitive damages.--No deduction shall be allowed 
     under this chapter for any amount paid or incurred for 
     punitive damages in connection with any judgment in, or 
     settlement of, any action. This paragraph shall not apply to 
     punitive damages described in section 104(c).''.
       (2) Conforming amendment.--The heading for section 162(g) 
     of such Code is amended by inserting ``Or Punitive Damages'' 
     after ``Laws''.
       (b) Inclusion in Income of Punitive Damages Paid by Insurer 
     or Otherwise.--
       (1) In general.--Part II of subchapter B of chapter 1 of 
     the Internal Revenue Code of 1986 is amended by adding at the 
     end the following new section:


       ``Gross income shall include any amount paid to or on 
     behalf of a taxpayer as insurance or otherwise by reason of 
     the taxpayer's liability (or agreement) to pay punitive 
       (2) Reporting requirements.--Section 6041 of such Code is 
     amended by adding at the end the following new subsection:
       ``(h) Section To Apply to Punitive Damages Compensation.--
     This section shall apply to payments by a person to or on 
     behalf of another person as insurance or otherwise by reason 
     of the other person's liability (or agreement) to pay 
     punitive damages.''.
       (3) Conforming amendment.--The table of sections for part 
     II of subchapter B of chapter 1 of such Code is amended by 
     adding at the end the following new item:

``Sec. 91. Punitive damages compensated by insurance or otherwise.''.

       (c) Effective Date.--The amendments made by this section 
     shall apply to damages paid or incurred on or after the date 
     of the enactment of this Act.
      By Mr. ROCKEFELLER (for himself, Mr. Kerry, Mr. Harkin, Mr. 
        Begich, and Mr. Johnson of South Dakota):
  S. 796. A bill to amend the Internal Revenue Code to extend qualified 
school construction bonds and qualified zone academy bonds, to treat 
qualified zone academy bonds as specified tax

[[Page S2396]]

credit bonds, and to modify the private business contribution 
requirement for qualified zone academy bonds; to the Committee on 
  Mr. ROCKEFELLER. Mr. President, today, along with my colleagues 
Senator Kerry of Massachusetts, Senator Harkin of Iowa, Senator Begich 
of Alaska, and Senator Johnson of South Dakota, I am introducing 
legislation to extend and improve two important programs that create 
good jobs and help our nation's schools. In order for America to out-
innovate, out-educate, and out-build the rest of the world, we must 
begin with our schools, and this legislation will make it easier to 
create spaces where 21st century learning can occur. The Qualified 
School Construction Bond, QSCB, and Qualified Zone Academy Bond, QZAB, 
programs have helped schools begin to address their construction and 
renovation needs, as well as creating construction jobs in their 
communities. Because of the tax credit associated with these bonds, the 
schools essentially do not have to pay interest which makes it much 
easier for them to fund their significant construction and renovation 
  The Qualified School Construction Bond program was created in 2009, 
and bond proceeds can be used for construction, rehabilitation, or 
repair of a public school or for land for a facility. The total amount 
of bonds allowed was $11 billion in 2009 and $11 billion in 2010. This 
national allocation is distributed by formula to the states and larger 
school districts. West Virginia, for example, was able to issue its 
full allocation of $72.3 million in bonds in 2010. Construction workers 
in West Virginia are building schools for their children. West Virginia 
is rightfully paying for the construction, but this bond program means 
their dollars go further. My legislation extends this important program 
through 2015 with the same $11 billion per year total national 
allocation of bonds.
  The Qualified Zone Academy Bond, QZAB, program was created in 1997. 
While it also helps schools issue bonds by providing favorable tax 
status, participating schools must be located in an empowerment zone or 
enterprise community or expect that at least 35 percent of the students 
will be eligible for free or reduced-cost lunches. Bonds cannot be used 
for new construction, but can be used for the rehabilitation or repair 
of schools, equipment, course development, and teacher training. The 
national limitation for bonds issued under this program was $1.4 
billion for 2009 and 2010 and my legislation extends that annual limit 
through 2015. This program has historically required a 10 percent match 
from private entities, and this requirement has proven a significant 
barrier to its use in some communities. My legislation provides an 
option to waive this match in some cases. It also allows the bond 
issuer to receive the tax credit as a payment. The Hiring Incentives to 
Restore Employment--HIRE--Act which became law last spring made this 
change for both bond programs and it resulted in greater use of the 
bonds. The huge Middle Class Tax Relief Act of 2010 which we passed in 
December repealed this change for QZABs, and my legislation makes the 
credit once again refundable. We know this helps schools utilize this 
program, and we need to give our schools every incentive to invest in 
  It is important that we continue both of these important programs. 
The school infrastructure needs of our country are immense. A recent 
report estimated the total school infrastructure needs across the 50 
States was over $250 billion. We won't meet that need in a year, or in 
2 years, but we need to commit ourselves to keep at it. I urge my 
colleagues to support this bill.
      By Ms. MIKULSKI (for herself, Mr. Akaka, Mrs. Boxer, Ms. 
        Cantwell, Mr. Cardin, Mr. Casey, Mr. Coons, Mr. Durbin, Mr. 
        Franken, Mrs. Gillibrand, Mr. Harkin, Mr. Kerry, Ms. Klobuchar, 
        Mr. Lautenberg, Mr. Leahy, Mr. Levin, Mrs. McCaskill, Mrs. 
        Murray, Mr. Reed, Mr. Reid, Mrs. Shaheen, Ms. Stabenow, Mr. 
        Whitehouse, Mr. Wyden, Mr. Merkley, and Mrs. Hagan):
  S. 797. A bill to amend the Fair Labor Standards Act of 1938 to 
provide more effective remedies to victims of discrimination in the 
payment of wages on the basis of sex, and for other purposes; to the 
Committee on Health, Education, Labor, and Pensions.
  Ms. MIKULSKI. Mr. President, I rise today to reintroduce the Paycheck 
Fairness Act, an important piece of legislation that is even more 
poignant today, Equal Pay Day, which is the day in 2011 where women 
earn as much as men did in 2010. It is also unfortunately marked by 
families doing more with less, and making tough decisions to make ends 
meet. I thank the 24 of my colleagues that have joined me as original 
cosponsors of this important legislation today.
  As a U.S. Senator, I am fighting for jobs today and jobs tomorrow. I 
am on the side of a fair economy and I am on the side of good-guy 
businesses. We need an economy that works for everyone, and works for 
the American family. But that means equal pay for equal work, and that 
individuals are judged solely by their individual skills, competence, 
unique talents and nothing else. The Paycheck Fairness Act gives us the 
much needed tools to make this happen.
  Women make this country run--we are business leaders, entrepreneurs, 
politicians, mothers and more. We also bring home a growing share of 
the family pocketbook, as evidenced by a recent White House report, 
``Women In America''. But we earn just 77 cents for every dollar our 
male counterpart makes, and women of color get even less. Inexplicably, 
these disparities exist across all levels of education and occupation. 
In my home State of Maryland, the average woman has to receive a 
bachelor's degree before she earns as much as the average male high 
school graduate. This is unacceptable.
  The Paycheck Fairness Act picks up where we left off with the Lilly 
Ledbetter Fair Pay Act last Congress. Enactment of this legislation 
will mean real progress in the fight to eliminate the gender wage gap 
and help families. It has the teeth that are needed to keep 
discrimination from happening in the first place, and makes the 
consequences tougher. The Act ensures that employers who try to justify 
paying a man more than a woman for the same job must show the disparity 
is not sex-based; but job related and necessary. It prohibits employers 
from retaliating against employees who discuss or disclose salary 
information with their coworkers. The bill would also make it easier 
for women to file class-action lawsuits against employers they accuse 
of sex-based pay discrimination. And it strengthens the available 
remedies to include punitive and compensatory damages, thus bringing 
equal pay law into line with all other civil rights law. The bottom 
line is that this bill ensures that women are treated fairly in the 
workplace, something that is a matter of basic equality and civil 
  So this Equal Pay Day, let's recommit to closing the wage gap. It is 
my hope that one day, there is no need for an Equal Pay Day--that every 
year, women earn the same as men. Until then, we link up, press on, and 
push for passage of this important legislation, so that for all victims 
of pay discrimination, there is a new day ahead.
  Mr. LEAHY. Mr. President, today, the Nation commemorates Equal Pay 
Day, an annual occasion that celebrates the gains that women have made 
in the workplace over the last century, but which also reminds us all 
that pay discrimination still exists in the United States. In today's 
economy, a troubling constant remains: women continue to earn less than 
men. According to the United States Bureau of Labor Statistics, on 
average, women working full-time still make only 78 cents for every 
dollar working men receive. For minority women, this statistic becomes 
even more sobering.
  The U.S. Department of Labor also reports an increasing number of 
families where women are the head of the household, and 
correspondingly, the primary source of income. Despite the signs of 
economic recovery, many women and families continue to struggle to make 
ends meet. This issue is not one that just impacts one individual; it 
creates additional economic hardship for entire families. Vermont is a 
leader in the Nation on fair pay practices, and 8 years ago, the State 
acted to pass an equal pay act, which prohibits compensating women and

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men differently for equal work that requires equal skill, effort, and 
responsibility under similar working conditions. Now in Vermont, 
employers cannot require wage nondisclosure agreements, and employees 
are protected from retaliation for disclosing their own wage. Still, 
there is room for improvement. The Bureau of Labor Statistics reports 
that Vermont women working full-time earn wages amounting to 81.9 
percent of what men earn. We must work harder to ensure that women are 
paid equal wages for equal work, across the country.
  The 1963 Equal Pay Act was enacted to protect employees against 
discrimination with respect to compensation because of an individual's 
race, color, religion, sex or national origin. While we have made 
progress, our work is not done. Hardworking women--and the American 
people--earned a long fought victory in early 2009, when President 
Obama signed into law the Lilly Ledbetter Fair Pay Act to reverse the 
U.S. Supreme Court's devastating decision in Ledbetter v. Goodyear 
Tire, a decision that rolled back years of progress to eliminate 
workplace discrimination. But the efforts to achieve parity for women 
in the workplace continues.
  Two bills introduced today will help the United States reach that 
goal. These bills include provisions similar to those enacted in 
Vermont. The Paycheck Fairness Act, which was introduced by Senator 
Mikulski and which I am proud to cosponsor, creates stronger incentives 
for employers to follow the law; strengthens penalties for equal pay 
violations; and prohibits retaliation against workers for disclosing 
their own wage information. This bill passed the House of 
Representatives with bipartisan support over a year ago, and deserves 
action in the Senate. The Fair Pay Act, which was introduced by Senator 
Harkin and which I am also proud to cosponsor, requires employers to 
pay equally for jobs of comparable skill, efforts and working 
conditions, and to disclose pay scales and rates for all job categories 
at a given company. To effectively close the wage gap we must address 
the systemic problems that are resulting in pay disparities. I believe 
both these bills are essential steps to closing the wage gap.
  Equal pay for equal work is neither a Democratic nor Republican 
issue; it is an American value. It is neither a private sector nor a 
public sector issue; it is a fundamental issue of fairness. Sadly, wage 
discrimination affects women of every generation and every 
socioeconomic background. It is not limited to one career path or level 
of education. The Senate should pass the Paycheck Fairness Act and the 
Fair Pay Act, and work toward other solutions to ensure our daughters 
and granddaughters, and all future generations of Americans, are not 
subject to the same discrimination that has plagued women for decades.
      By Mr. CARPER (for himself, Ms. Collins, Mr. Lieberman, and Mr. 
        Brown of Massachusetts):
  S. 801. A bill to amend chapter 113 of title 40, United States Code, 
to require executive agency participation in real-time transparency of 
investment projects, to require performance and governance reviews of 
all cost overruns on Federal information technology investment 
projects, and for other purposes; to the Committee on Homeland Security 
and Governmental Affairs.
  Ms. COLLINS. Mr. President. I rise to join Senators Carper, 
Lieberman, and Brown in introducing a bill that would bring more 
management and oversight of major information technology, IT, 
investments across the federal government.
  In fiscal year 2011 alone, the federal government plans to spend 
nearly $80 billion on IT investments, about half of which is for major 
IT investments. According to the Government Accountability Office, 
nearly 40 percent of those major IT investments, totaling nearly $20 
billion, are at risk for significant cost overruns, schedule delays, 
and performance problems.
  Rampant cost and performance problems in IT investments occur across 
the government. Most recently, we have seen a total breakdown in the 
National Archives and Records Administration's, NARA, Electronic 
Records Archive initiative.
  Since 2001, NARA has tried to develop a system to preserve and 
provide access to a massive volume of electronic records. Originally 
slated for a 2012 rollout at a cost of $317 million, NARA has had to 
repeatedly revise the plan and cost estimate and finally decided to 
produce a scaled-down system this year. Last month GAO estimated the 
project would cost between $762 million and $1 billion--three times 
more than originally planned.
  We see time and time again with these big IT contracts that 
requirements are not clear up front, leading to chaos down the road 
that wastes hundreds of millions of dollars.
  Such was the case with the 2010 Decennial Census handheld devices. 
After spending eight years developing a completely new approach to 
census-taking, the Census Bureau scrapped plans for using handheld 
computers and reverted instead back to paper and pencil.
  Problems managing the contractor, major flaws in the Bureau's cost-
estimates, and kicking the can down the road added about $3 billion to 
the census price tag. Three billion!
  The problems keep coming. DHS has tried twice--since 2004--to 
integrate its many-siloed financial management systems. The Department 
spent approximately $52 million on one failed attempt before abandoning 
the project nearly two years later. DHS tried again only to encounter 
severe schedule delays. The Department is now planning to roll out the 
project incrementally, which is of course how they should have started 
years ago, and is what is recommended under the OMB guidance for 
managing large IT projects.
  Large IT project failures have cost U.S. taxpayers literally billions 
of dollars in wasted expenditures. While never acceptable, especially 
now given our current fiscal crisis, we just cannot afford to accept 
this type of incompetence and mismanagement one more day. Perhaps even 
more troubling is the fact that, when federal IT projects fail, they 
can undermine the government's ability to defend the nation, enforce 
its laws, or deliver critical services to citizens.
  Again and again, we have seen IT project failures grounded in poor 
planning, ill-defined and shifting requirements, undisclosed 
difficulties, poor risk management, and lax monitoring of performance.
  For the last several years, Senator Carper and I have pushed the 
Office of Management and Budget to improve the management and oversight 
of these IT investments. To help address the concerns we have raised, 
OMB has instituted several new initiatives over the last year and a 
  For example, in June 2009, OMB announced the creation of the ``IT 
Dashboard,'' which is a website that displays cost and schedule 
information about major IT investments, as well as the agency Chief 
Information Officer's, CIO, evaluation of the status of each project. 
OMB has also instituted comprehensive face-to-face reviews of these 
investments, known as ``TechStat'' sessions.
  As a result, OMB has reported reducing the life-cycle costs of 15 
investments by approximately $3 billion by narrowing the scope of some 
projects and even shutting down others and cutting the losses. Added 
transparency from the IT Dashboard, as well as comprehensive reviews 
via TechStat sessions, should improve agency management and 
Congressional oversight of the projects.
  The bill Senator Carper and I introduce today would require agencies 
to use the Dashboard in a standardized way. It would also expand inputs 
to include cost, schedule, and performance data, using a metric called 
Earned Value Management, EVM. EVM prevents the kind of ``hide the 
ball'' game that agencies often play to cover up performance 
shortfalls, cost overruns, or schedule slips.
  The bill institutes triggers so that, if an investment deviates more 
than 20 percent from its original cost, schedule, and performance 
targets, CIOs would be required to conduct the type of comprehensive 
TechStat sessions currently taking place at OMB on a more limited 
scale. These sessions would generate information for Congress as well 
as the public, by requiring agencies to post the results of the 
TechStat sessions on the IT Dashboard. These reports would have to 
describe in detail how the failures occurred, naming names, and 
describing how exactly the shortcomings are going to be fixed.

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  If an investment deviates more than 40 percent, the TechStat session 
would get bumped up to the OMB level, to be run by the Federal Chief 
Information Officer. In addition to information about how to improve 
the performance of the project, OMB would be required to provide to 
Congress a recommendation of whether the project should be pared back 
or cancelled if it cannot be overhauled.
  On top of this aggressive oversight ramp-up, the bill would require 
agencies to identify and heighten the planning and management for a 
handful of top priority, most expensive projects. For these ``core'' 
investments, agencies would submit additional data on performance, key 
milestones, and lifecycle costs.
  Because of their scope and importance to agency missions, these core 
projects would have lower thresholds for oversight triggers and would 
get bumped up to OMB TechStat review with a deviation of 20 percent. 
The ``get-well'' plan would then be sent to Congress and published on 
the Dashboard for maximum accountability. This early intervention at 
the highest level would ensure that these critical projects are either 
saved or scrapped long before they can threaten to waste billions of 
dollars or endanger agency missions.
  If an agency fails to comply with the requirements in the bill for 
any given project, that would be the end of taxpayer support for the 
project until it is brought into compliance.
  If this bill had been law during the past decade, early warning signs 
would have alerted Congress and possibly saved some of the billions 
wasted on so many IT projects currently crowding various high-risk 
  I urge every Senator to support this much-needed and bipartisan bill.