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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1723 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1723

 To provide for a paid family and medical leave insurance program, and 
                          for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             March 25, 2009

 Mr. Stark (for himself, Mr. George Miller of California, Ms. Woolsey, 
and Mrs. Maloney) introduced the following bill; which was referred to 
the Committee on Education and Labor, and in addition to the Committees 
on Oversight and Government Reform and Ways and Means, for a period to 
      be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL

 
 To provide for a paid family and medical leave insurance program, and 
                          for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Family Leave Insurance Act of 
2009''.

SEC. 2. CONGRESSIONAL FINDINGS.

    Congress finds the following:
            (1) Since its passage, the Family and Medical Leave Act of 
        1993 (referred to in this section as the ``FMLA'') has assisted 
        millions of employees in balancing the demands of their jobs 
        with their family responsibilities. However, many eligible 
        employees are not able to utilize the benefits of the FMLA 
        because FMLA leave is unpaid. According to a 2000 survey on the 
        FMLA by the Department of Labor, among those employees who need 
        FMLA leave and don't take it, 78 percent don't take it because 
        they can't afford it.
            (2) An analysis of national data from the 2000 FMLA survey 
        by the Center for Women and Work at Rutgers University suggests 
        that employees suffer severe financial hardship in order to be 
        responsible family members and provide minor children and aging 
        parents with the care they need. For example, among employees 
        who needed to care for a seriously ill child--
                    (A) 42 percent took time off even though they 
                received no pay while doing so;
                    (B) 46 percent received full or partial pay during 
                at least part of the time off (including receiving pay 
                for reasons such as use of vacation time); and
                    (C) 12 percent could not take time off to care for 
                the child due to lack of pay.
            (3) Americans who provide direct care for their family 
        members prevent the worsening of illnesses and promote strong 
        recovery. For example, the length of a child's stay in the 
        hospital decreases by 31 percent when parents are able to be 
        present.
            (4) Forty-three percent of private sector employees do not 
        have access to paid sick leave, as reported in the Bureau of 
        Labor Statistics National Compensation Survey in March 2006. Of 
        those employees who do have paid sick leave, many are not able 
        to use their own sick leave to receive payment while caring for 
        family members who are ill.
            (5) Family and medical leave benefits strengthen and 
        support the business sector through health care savings and 
        increased employee retention and productivity.
            (6) A 2008 Harvard Law study on foreclosure trends found 
        that 49 percent of all respondents' foreclosures were caused, 
        at least in part, by a medical crisis--including loss of work 
        due to illness or injury, unmanageable medical bills, or caring 
        for an ill family member. The State of California, where 
        workers have access to paid family medical leave benefits, had 
        a lower rate of foreclosure caused by caring for a sick 
        household member.
            (7) Demographic changes over the past few decades have 
        altered the face and needs of the workforce. It is now common 
        for both parents to be in the workforce and for men and women 
        to also serve as the primary caregivers for elderly spouses or 
        parents.
            (8) According to the Bureau of the Census and the Bureau of 
        Labor Statistics, 56 percent of women with children under age 1 
        are in the labor force, while 71 percent of all women with 
        dependent children under age 18 are in the labor force.
            (9) Nearly \2/3\ of Americans under the age of 60 expect to 
        be responsible for the care of an elderly relative in the next 
        10 years.

SEC. 3. GENERAL DEFINITIONS.

    (a) In General.--The definitions provided by section 101 of the 
Family and Medical Leave Act of 1993 (29 U.S.C. 2611), other than the 
definitions of the terms ``son or daughter'', shall apply for purposes 
of this Act.
    (b) Additional Definitions.--In this Act, the following additional 
definitions shall apply:
            (1) Board of trustees.--The term ``Board of Trustees'' 
        means the Board of Trustees of the Insurance Fund.
            (2) Covered agency.--The term ``covered agency'', when used 
        with respect to a State, means the State agency referred to in 
        paragraph (1) of section 102(b), or the Commissioner of Social 
        Security if the Commissioner is carrying out the State Family 
        and Medical Insurance Program in the State under paragraph (2) 
        of such section.
            (3) Domestic partner.--The term ``domestic partner'' 
        means--
                    (A) the person recognized as the domestic partner 
                of the employee under any domestic partner registry or 
                civil union laws of the State or political subdivision 
                of a State where the employee resides;
                    (B) a same-sex spouse as determined under the 
                applicable law of the State or political subdivision of 
                a State where the employee resides; or
                    (C) in the case of an unmarried employee who lives 
                in a State where a person cannot marry a person of the 
                same sex under the laws of the State, a single, 
                unmarried adult person of the same sex as the employee 
                who is in a committed, intimate relationship with the 
                employee, is not a domestic partner to any other 
                person, and who is designated to the employer by such 
                employee as that employee's domestic partner.
            (4) Insurance fund.--The term ``Insurance Fund'' means the 
        Family and Medical Leave Insurance Fund established under 
        section 301.
            (5) Managing trustee.--The term ``Managing Trustee'' means 
        the Managing Trustee of the Board of Trustees of the Insurance 
        Fund.
            (6) Son or daughter.--The term ``son or daughter'' means a 
        biological, adopted, or foster child, a stepchild, a legal 
        ward, a child of a person's domestic partner, or a child of a 
        person standing in loco parentis, who is--
                    (A) under 18 years of age; or
                    (B) 18 years of age or older and incapable of self-
                care because of a mental or physical disability.

          TITLE I--FAMILY AND MEDICAL LEAVE INSURANCE PROGRAM

SEC. 101. PROGRAM DEFINITIONS.

    In this title:
            (1) Eligible employee.--The term ``eligible employee'' 
        means any of the following:
                    (A) An employee who--
                            (i) earned wages with a covered employer 
                        for a minimum of 6 months prior to filing an 
                        application for leave benefits under this 
                        title; and
                            (ii) has been employed by the employer with 
                        respect to whom paid leave is requested for at 
                        least 625 hours of service during the previous 
                        6 months.
                    (B) An employee--
                            (i) of a small employer that has elected to 
                        participate in the Program under this title in 
                        accordance with such regulations as the 
                        Secretary shall prescribe; and
                            (ii) who meets the requirements of 
                        subparagraph (A), but is not an employee of the 
                        Federal Government.
                    (C) A self-employed individual who has--
                            (i) elected to participate in the Program 
                        under this title in accordance with such 
                        regulations as the Secretary shall prescribe;
                            (ii) self-employment income while a covered 
                        employer for 6 of the last 12 months prior to 
                        filing an application for leave benefits under 
                        this title; and
                            (iii) paid premiums under section 1401(c) 
                        of the Internal Revenue Code of 1986 with 
                        respect to such self-employment income.
            (2) Employer-related definitions.--
                    (A) Covered employer.--The term ``covered 
                employer'' means a person--
                            (i) that is--
                                    (I) an employer;
                                    (II) a small employer that has 
                                elected to participate in the Program 
                                under this title in accordance with 
                                such regulations as the Secretary shall 
                                prescribe; or
                                    (III) a self-employed individual 
                                who has elected to so participate; and
                            (ii) that is not a voluntary plan employer.
                    (B) Employer.--The term ``employer'' shall have the 
                meaning given that term in section 101(4) of the Family 
                and Medical Leave Act of 1993 (29 U.S.C. 2611(4)), 
                except that such term shall include any person who 
                employs 2 or more employees for each working day during 
                each of 20 or more calendar workweeks in the current or 
                preceding calendar year.
                    (C) Small employer.--The term ``small employer''--
                            (i) means any person engaged in commerce or 
                        in any industry or activity affecting commerce 
                        who employs not less than 2 and not more than 
                        19 employees for each working day during each 
                        of 20 or more calendar workweeks in the current 
                        or preceding calendar year; and
                            (ii) includes--
                                    (I) any person who acts, directly 
                                or indirectly, in the interest of an 
                                employer described in clause (i) to any 
                                of the employees of such employer;
                                    (II) any successor in interest of 
                                an employer described in clause (i); 
                                and
                                    (III) any public agency, as defined 
                                in section 3(x) of the Fair Labor 
                                Standards Act of 1938 (29 U.S.C. 
                                203(x)) that is an employer described 
                                in clause (i) but is not an entity of 
                                the Federal Government.
                    (D) Voluntary plan employer.--The term ``voluntary 
                plan employer'' means an employer for which the 
                Secretary has approved a voluntary plan under section 
                104 for the period involved.
            (3) Leave benefit.--The term ``leave benefit'' means a 
        family and medical leave insurance benefit described in section 
        103.
            (4) Voluntary paid benefit.--The term ``voluntary paid 
        benefit'' means a family and medical leave insurance benefit 
        provided under a voluntary plan approved under section 104 for 
        the period involved.

SEC. 102. ESTABLISHMENT OF PROGRAM.

    (a) Federal Program.--The Secretary of Labor shall establish a 
Family and Medical Insurance Program.
    (b) State Programs.--In carrying out the Federal Program 
established under subsection (a), the Secretary may--
            (1) enter into a contract with a State under which--
                    (A) the State agrees to establish, or expand a 
                State program in effect at the date of the enactment of 
                this Act to include, a State Family and Medical 
                Insurance Program that provides the benefits described 
                in this title; and
                    (B) the Secretary agrees to instruct the Managing 
                Trustee of the Family and Medical Leave Insurance Fund, 
                established under section 301, to provide the State 
                funds for such benefits from the Insurance Fund; or
            (2) at the request of the Governor of a State, enter into 
        an interagency agreement with the Commissioner of Social 
        Security under which--
                    (A) the Commissioner of Social Security agrees to 
                establish a State Family and Medical Insurance Program 
                in such State to provide the benefits described in this 
                title in such State; and
                    (B) the Secretary agrees to instruct the Managing 
                Trustee of the Insurance Fund to provide the 
                Commissioner of Social Security funds for such benefits 
                from the Insurance Fund.
    (c) State Application.--To be eligible to receive a contract under 
subsection (b)(1), a State shall submit an application to the Secretary 
at such time, in such manner, and containing such information as the 
Secretary may require. At a minimum, the application shall include 
information identifying the State agency to carry out the State Family 
and Medical Insurance Program under subsection (b)(1).

SEC. 103. PROGRAM BENEFITS.

    (a) Entitlement.--Subject to subsections (b), (d), and (e), an 
eligible employee of a covered employer shall be entitled to a family 
and medical leave insurance benefit for a total of 12 workweeks of 
leave during any 12-month period for 1 or more of the following 
reasons:
            (1) Because of the birth of a son or daughter of the 
        employee and in order to care for such son or daughter.
            (2) Because of the placement of a son or daughter with the 
        employee for adoption or foster care.
            (3) In order to care for a child, parent, spouse, domestic 
        partner, grandchild, grandparent, or sibling of the employee 
        and who has a serious health condition.
            (4) Because of a serious health condition that makes the 
        employee unable to perform the functions of the position of 
        such employee.
            (5) Because of any qualifying exigency (as the Secretary of 
        Labor shall, by regulation, determine) arising out of the fact 
        that the spouse, or a son, daughter, or parent of the employee 
        is on active duty (or has been notified of an impending call or 
        order to active duty) in the Armed Forces of the United States 
        in support of a contingency operation.
            (6) In order to care for a child, parent, spouse, domestic 
        partner, grandchild, grandparent, sibling, or next of kin of 
        the employee who is a covered servicemember as such term is 
        defined in section 101(16) of the Family and Medical Leave Act 
        of 1993 (29 U.S.C. 2611(16)).
    (b) Waiting Period.--During each 12-month period described in 
subsection (a), each eligible employee shall be subject to a waiting 
period of 5 workdays of leave described in subsection (a) (but not more 
than 7 calendar days), during which a leave benefit shall not be paid 
to the employee. The waiting period shall not reduce the 12 workweeks 
of leave benefits available under subsection (a).
    (c) Benefit Amount.--
            (1) In general.--Subject to paragraph (2), an eligible 
        employee's leave benefit for any workday on which the employee 
        takes leave as described in subsection (a) shall be calculated 
        as--
                    (A) in the case of an employee with an annual 
                income of not more than $20,000, an amount equal to 100 
                percent of that employee's daily earnings;
                    (B) in the case of an employee with an annual 
                income of more than $20,000 and not more than $30,000, 
                an amount equal to the greater of--
                            (i) 75 percent of that employee's daily 
                        earnings; or
                            (ii) 100 percent of the daily earnings of 
                        an employee with an annual income of $20,000;
                    (C) in the case of an employee with an annual 
                income of more than $30,000 and not more than $60,000, 
                an amount equal to the greater of--
                            (i) 55 percent of that employee's daily 
                        earnings; or
                            (ii) 75 percent of the daily earnings of an 
                        employee with an annual income of $30,000;
                    (D) in the case of an employee with an annual 
                income of more than $60,000 and not more than $97,000, 
                an amount equal to the greater of--
                            (i) 40 percent of that employee's daily 
                        earnings; or
                            (ii) 55 percent of the daily earnings of an 
                        employee with an annual income of $60,000; and
                    (E) in the case of an employee with an annual 
                income of more than $97,000, an amount equal to 40 
                percent of the daily earnings of an employee with an 
                annual income of $97,000.
            (2) Indexing of annual income categories.--
                    (A) In general.--The Secretary shall index the 
                annual income amounts specified in paragraph (1) for 
                each calendar year, using the national average wage 
                index, as determined under section 209(k) of the Social 
                Security Act (42 U.S.C. 409(k)).
                    (B) Publication.--Not later than the November 1 
                preceding each calendar year, the Secretary shall 
                publish in the Federal Register the indexed amount 
                determined under subparagraph (A) for that calendar 
                year.
    (d) Application.--
            (1) In general.--To be eligible to receive a family and 
        medical insurance benefit under this title in a State, an 
        eligible employee shall submit an application to the covered 
        agency for the State at such time, in such manner, and 
        containing the information specified in paragraph (3) and such 
        additional information as the agency may require.
            (2) Irrevocability for self-employed individuals.--An 
        election by a self-employed individual to participate in the 
        Program shall be irrevocable.
            (3) Certification requirements.--The covered agency shall 
        require each of the following, as part of the application for 
        benefits under this section in connection with any leave:
                    (A) A certification, submitted in a timely manner, 
                issued by the health care provider of the eligible 
                employee or of the child, spouse, parent, domestic 
                partner, grandchild, grandparent or sibling of the 
                employee, as appropriate, and similar to the 
                certification described section 103(b) of the Family 
                and Medical Leave Act of 1993 (29 U.S.C. 2613(b)) in 
                connection with such leave.
                    (B) In any case in which the covered agency has 
                reason to doubt the validity of the certification 
                provided under subparagraph (A), the Secretary may 
                require, at the expense of the covered agency, that the 
                eligible employee obtain the opinion of a second health 
                care provider designated or approved by the agency 
                concerning any information certified under subparagraph 
                (A).
                    (C) In any case in which the second opinion 
                described in subparagraph (B) differs from the opinion 
                in the original certification provided under 
                subparagraph (A), the covered agency may require, at 
                the expense of the agency, that the employee obtain the 
                opinion of a third health care provider designated or 
                approved jointly by the agency and the employee 
                concerning the information certified under subparagraph 
                (A). The opinion of the third health care provider 
                concerning such information shall be considered to be 
                final and shall be binding on the agency and the 
                employee.
    (e) Payment of Benefits.--
            (1) Payment from insurance fund.--Payments of benefits 
        required to be made under this section shall be made only from 
        the Insurance Fund established under section 301.
            (2) Certification and payment.--On the final decision of a 
        covered agency or on the final judgment of any court of 
        competent jurisdiction pursuant to paragraph (3) that any 
        person is entitled to any payment under this section--
                    (A) the covered agency shall certify to the 
                Managing Trustee of the Board of Trustees of the 
                Insurance Fund the name and address of the person 
                entitled to receive such payment, the amount of such 
                payment, and the time at which such payment shall be 
                made;
                    (B) the Managing Trustee shall pay the certified 
                amount from the Insurance Fund to the covered agency; 
                and
                    (C) the covered agency shall make the payment to 
                the person.
            (3) Review.--Any eligible employee dissatisfied with any 
        initial determination under this section shall be entitled to 
        reconsideration of the determination, and a hearing on the 
        determination, by the Secretary to the same extent as is 
        provided in section 205(b) of the Social Security Act (42 
        U.S.C.22 405(b)) and to judicial review of the final decision 
        after such hearing as is provided in section 205(g) of the 
        Social Security Act (42 U.S.C. 405(g)).
            (4) Withholding of certification.--In any case in which a 
        review of the covered agency's decision is or may be sought 
        under paragraph (3), the covered agency may withhold 
        certification of payment pending such review.
            (5) Other compensation.--Except as provided in section 105, 
        no employee shall be eligible to receive paid leave benefits 
        under this title for any period during which--
                    (A) the employee is receiving worker's compensation 
                or compensation through unemployment insurance in 
                connection with the event for which the employee is 
                taking the leave; or
                    (B) the employee is receiving paid leave benefits 
                from an employer under a voluntary employer plan 
                approved under section 104.
    (f) Regulations.--The Secretary shall issue regulations to carry 
out this section, including the determination of benefits for leave 
taken intermittently or on a reduced leave schedule, or for leave taken 
by a part-time, seasonal, or intermittent employee.

SEC. 104. VOLUNTARY EMPLOYER PLAN.

    (a) In General.--Any employer may submit an application to the 
Secretary for approval of a voluntary plan. The Secretary may require 
the employer to resubmit the plan for approval on a annual basis. 
During a period for which the Secretary has approved a plan, the 
applicant shall provide a voluntary paid benefit under the plan rather 
than participating in the Program.
    (b) Approval.--The Secretary shall approve the voluntary plan of 
the applicant if the Secretary finds each of the following with respect 
to the applicant:
            (1) The rights afforded to the employees covered under the 
        plan are equal to or greater than the rights afforded through 
        the Program.
            (2) The plan has been made available to all of the 
        employees of the applicant employed in the United States or to 
        all employees at any 1 distinct, separate establishment 
        maintained by the applicant in the United States.
            (3) A majority of the employees of the employer employed in 
        the United States or a majority of the employees employed at 
        any one distinct, separate establishment maintained by the 
        employer in the United States have consented to the plan.
            (4) The plan provides for insurance to be issued by an 
        admitted disability insurer approved by the Secretary or 
        equivalent insurance (which may be self-insurance).
            (5) The applicant has consented to the plan and has agreed 
        to make the premium contributions required, if any, and 
        transmit the proceeds to the disability insurer, if any.
            (6) The plan provides for the inclusion of future 
        employees.
            (7)(A) The plan will be in effect for a period of not less 
        than 1 year and, thereafter, continuously unless the Secretary 
        finds that the applicant has given notice of intent to 
        terminate the plan, as described in subparagraph (B), and that 
        the fee described in subparagraph (C) has been paid.
            (B) The notice shall be filed in writing with the Secretary 
        and shall be effective--
                    (i) on the anniversary of the effective date of the 
                plan next following the date of the filing of the 
                notice; or
                    (ii) if such anniversary would occur less than 30 
                days after the date of the filing of the notice, on the 
                next anniversary of that effective date.
            (C) The applicant shall pay a fee to the Secretary in such 
        amount as the Secretary determines to be adequate to provide 
        leave benefits under this title to all eligible employees of 
        the applicant for a period of at least 4 months, plus an amount 
        to pay administrative costs related to processing and paying 
        such benefits.
            (D) Amounts received by the Secretary under this paragraph 
        shall be deposited in the Insurance Fund.
            (8) The amount of deductions from the wages of an employee 
        that is in effect for the plan shall not be increased on any 
        date other than on the date of an anniversary of the effective 
        date of the plan.
    (c) Orders and Withdrawal of Approval.--If the Secretary finds that 
a voluntary plan employer is not paying voluntary paid benefits 
required under the voluntary plan to the employees under the plan, the 
Secretary may order the employer to make the payments. If the Secretary 
finds that a voluntary plan employer is not complying with the 
provisions of the plan, including by not paying voluntary paid benefits 
required under the plan, the Secretary may revoke the Secretary's 
approval for the plan, and require the employer to participate in the 
Program.

SEC. 105. ADDITIONAL BENEFITS.

    (a) Additional Employer Benefits.--
            (1) Covered employers.--Nothing in this title shall be 
        construed to discourage a covered employer from providing an 
        additional benefit in conjunction with leave described in 
        section 103(a) to an eligible employee, in addition to the 
        leave benefit provided to that employee. The additional 
        employer benefit shall not reduce the amount of the leave 
        benefit that an eligible employee receives under this title.
            (2) Voluntary plan employers.--Nothing in this title shall 
        be construed to discourage a voluntary plan employer from 
        providing an additional benefit in conjunction with leave 
        described in section 103(a) to an employee, in addition to the 
        voluntary paid benefit provided to that employee. The 
        additional employer benefit shall not reduce the amount of the 
        voluntary paid benefit that an employee receives under a 
        voluntary plan described in section 104.
    (b) Collective Bargaining.--
            (1) More protective.--Nothing in this title shall be 
        construed to diminish the obligation of a covered employer or 
        voluntary plan employer to comply with any collective 
        bargaining agreement or any employment benefit program or plan 
        that provides greater paid leave rights to employees than the 
        rights established under this title (including rights 
        established under a plan described in section 104).
            (2) Less protective.--The rights established for employees 
        under this title (including rights established under a plan 
        described in section 104) shall not be diminished by any 
        collective bargaining agreement or any employment benefit 
        program or plan.

SEC. 106. PROHIBITED ACTS BY EMPLOYER.

    (a) Interference With Rights.--It shall be unlawful for any covered 
employer to interfere with, restrain, or deny the exercise of or the 
attempt to exercise, any right provided under this title.
    (b) Discrimination.--It shall be unlawful for any covered employer 
to discharge or in any other manner discriminate against any individual 
for opposing any practice made unlawful by this title.
    (c) Interference With Proceedings or Inquiries.--It shall be 
unlawful for any person to discharge or in any other manner 
discriminate against any individual because such individual--
            (1) has filed any charge, or has instituted or caused to be 
        instituted any proceeding, under or related to this title;
            (2) has given, or is about to give, any information in 
        connection with any inquiry or proceeding relating to any right 
        provided under this title; or
            (3) has testified, or is about to testify, in any inquiry 
        or proceeding relating to any right provided under this title.

SEC. 107. ENFORCEMENT.

    (a) Civil Action by Employees.--
            (1) Liability.--Any covered employer who violates section 
        106 shall be liable to any eligible employee affected--
                    (A) for damages equal to--
                            (i) the amount of--
                                    (I) any wages, salary, employment 
                                benefits, or other compensation denied 
                                or lost to such employee by reason of 
                                the violation; or
                                    (II) in a case in which wages, 
                                salary, employment benefits, or other 
                                compensation have not been denied or 
                                lost to the employee, any actual 
                                monetary losses sustained by the 
                                employee as a direct result of the 
                                violation, such as the cost of 
                                providing care, up to a sum equal to 8 
                                weeks of wages or salary for the 
                                employee;
                            (ii) the interest on the amount described 
                        in clause (i) calculated at the prevailing 
                        rate; and
                            (iii) an additional amount as liquidated 
                        damages equal to the sum of the amount 
                        described in clause (i) and the interest 
                        described in clause (ii), except that if a 
                        covered employer who has violated section 106 
                        proves to the satisfaction of the court that 
                        the act or omission which violated section 106 
                        was in good faith and that the employer had 
                        reasonable grounds for believing that the act 
                        or omission was not a violation of section 106, 
                        such court may, in the discretion of the court, 
                        reduce the amount of the liability to the 
                        amount and interest determined under clauses 
                        (i) and (ii), respectively; and
                    (B) for such equitable relief as may be 
                appropriate, including employment, reinstatement, and 
                promotion.
            (2) Right of action.--
                    (A) In general.--Except as provided in subparagraph 
                (B), an action to recover the damages or equitable 
                relief prescribed in paragraph (1) may be maintained 
                against any covered employer (including a public 
                agency) in any Federal or State court of competent 
                jurisdiction by any 1 or more employees for and on 
                behalf of--
                            (i) the employees; or
                            (ii) the employees and other employees 
                        similarly situated.
                    (B) Limitation.--The right provided by subparagraph 
                (A) to bring an action by or on behalf of any employee 
                shall terminate--
                            (i) on the filing of a complaint by the 
                        Secretary in an action under subsection (b)(3) 
                        in which restraint is sought of any further 
                        delay in the payment of the amount described in 
                        paragraph (1)(A) to such employee by an 
                        employer responsible under paragraph (1) for 
                        the payment; or
                            (ii) on the filing of a complaint by the 
                        Secretary in an action under paragraph (1) or 
                        (2) of subsection (b) in which a recovery is 
                        sought of the damages described in paragraph 
                        (1)(A) owing to an eligible employee by an 
                        employer liable under paragraph (1),
                unless the action described in clause (i) or (ii) is 
                dismissed without prejudice on motion of the Secretary.
            (3) Fees and costs.--The court in an action brought under 
        this subsection shall, in addition to any judgment awarded to 
        the plaintiff, allow a reasonable attorneys' fee, reasonable 
        expert witness fees, and other costs of the action to be paid 
        by the defendant.
    (b) Actions by the Secretary.--
            (1) Administrative action.--The Secretary shall receive, 
        investigate, and attempt to resolve complaints of violations of 
        section 106 in the same manner that the Secretary receives, 
        investigates, and attempts to resolve complaints of violations 
        of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 
        U.S.C. 206 and 207).
            (2) Civil action.--
                    (A) Right of action.--The Secretary may bring an 
                action in any court of competent jurisdiction to 
                recover the damages described in subsection (a)(1)(A).
                    (B) Sums recovered.--Any sums recovered by the 
                Secretary pursuant to this paragraph shall be held in a 
                special deposit account and shall be paid, on order of 
                the Secretary, directly to each employee affected. Any 
                such sums not paid to an employee because of inability 
                to do so within a period of 3 years shall be deposited 
                into the Treasury of the United States as miscellaneous 
                receipts.
            (3) Action for injunction by the secretary.--The district 
        courts of the United States shall have jurisdiction, for cause 
        shown, in an action brought by the Secretary--
                    (A) to restrain violations of section 106, 
                including the restraint of any withholding of payment 
                of wages, salary, employment benefits, or other 
                compensation, plus interest, found by the court to be 
                due to eligible employees; or
                    (B) to award such other equitable relief as may be 
                appropriate, including employment, reinstatement, and 
                promotion.
            (4) Solicitor of labor.--The Solicitor of Labor may appear 
        for and represent the Secretary on any litigation brought under 
        this subsection.
    (c) Limitation.--
            (1) Except as provided in paragraph (2), an action may be 
        brought under subsections (a) or (b) not later than 2 years 
        after the date of the last event constituting the alleged 
        violation for which the action is brought.
            (2) Willful violation.--In the case of such action brought 
        for a willful violation of section 106, such action may be 
        brought within 3 years of the date of the last event 
        constituting the alleged violation for which such action is 
        brought.
            (3) Commencement.--In determining when an action is 
        commenced by the Secretary for the purposes of this subsection, 
        it shall be considered to be commenced on the date when the 
        complaint is filed.
    (d) Investigative Authority.--
            (1) In general.--To ensure compliance with the provisions 
        of this title, or any regulation or order issued under this 
        title, the Secretary shall have, subject to paragraph (3), the 
        investigative authority provided under section 11(a) of the 
        Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)).
            (2) Obligation to keep and preserve records.--Any covered 
        employer shall make, keep, and preserve records pertaining to 
        compliance with this title in accordance with section 11(c) of 
        the Fair Labor Standards Act of 1938 (29 U.S.C. 211(c)) and in 
        accordance with regulations issued by the Secretary. The 
        Secretary shall have access to the records for purposes of 
        conducting audits.
            (3) Required submissions generally limited to an annual 
        basis.--The Secretary shall not under the authority of this 
        subsection require any covered employer or any plan, fund, or 
        program to submit to the Secretary any books or records more 
        than once during any 12-month period, unless the Secretary has 
        reasonable cause to believe there may exist a violation of this 
        title or any regulation or order issued pursuant to this title, 
        or is investigating a charge pursuant to subsection (b).
            (4) Subpoena power.--For the purposes of any investigation 
        provided for in this section, the Secretary shall have the 
        subpoena authority provided for under section 9 of the Fair 
        Labor Standards Act of 1938 (29 U.S.C. 209).

SEC. 108. PENALTIES.

    (a) Penalties for Submission of False Certifications.--If the 
Secretary finds that any individual submits a false certification of 
the health condition of any person in order to obtain leave benefits 
under this title with the intent to defraud, the Secretary shall assess 
a penalty against the individual in an amount up to 100 percent of the 
benefits paid as a result of the false certification. Penalties 
collected under this subsection shall be deposited in the Insurance 
Fund, notwithstanding the provisions of title 31, United States Code 
and used to reimburse the covered employers involved for the amount of 
the leave benefits.
    (b) Criminal Penalties for False Statements and Solicitations.--
Whoever--
            (1) makes or causes to be made any false statement in 
        support of an application for leave benefits under this title;
            (2) knowingly presents or causes to be presented any false 
        written or oral material statement in support of any claim for 
        leave benefits under this title;
            (3) knowingly solicits, receives, offers, pays, or accepts 
        any rebate, refund, commission, preference, patronage, 
        dividend, discount, or other consideration, whether in the form 
        of money or otherwise, as compensation or inducement for 
        soliciting a claimant to apply for leave benefits under this 
        title, except to the extent authorized by a law of the United 
        States; or
            (4) knowingly assists, abets, solicits, or conspires with 
        any person to engage in an act that is prohibited under 
        paragraph (1), (2), or (3),
shall be guilty of a felony and upon conviction shall be fined under 
title 18, United States Code, or imprisoned for not more than 5 years, 
or both.

SEC. 109. EDUCATION PROGRAMS.

    (a) Authority.--The Secretary shall develop and maintain a program 
of education concerning the rights and leave benefits under this title.
    (b) Notice to Employers.--The Secretary shall provide to each 
covered employer a notice informing employees of the rights and leave 
benefits available under this title. The notice shall be given by every 
covered employer to each employee hired, and to each employee taking 
leave as described in section 103(a).

SEC. 110. REGULATIONS.

    The Secretary shall issue regulations to carry out this title.

SEC. 111. EFFECTIVE DATE.

    This title shall take effect on January 1, 2011, and apply to 
periods of leave that commence on or after January 1, 2012.

   TITLE II--CIVIL SERVICE FAMILY AND MEDICAL LEAVE INSURANCE PROGRAM

SEC. 201. PROGRAM DEFINITIONS.

    In this title:
            (1) Agency.--The term ``agency'' means an agency covered 
        under subchapter V of chapter 63 of title 5, United States 
        Code.
            (2) Agency employee.--The term ``agency employee'' means an 
        employee who--
                    (A) meets the requirements of paragraph (1) of 
                section 6381 of title 5, United States Code; and
                    (B) has earned wages with an agency for 12 of the 
                last 18 months, prior to filing an application for 

                leave benefits under this title.

SEC. 202. ESTABLISHMENT OF PROGRAM.

    (a) In General.--The Director of the Office of Personnel Management 
shall establish a Civil Service Family and Medical Leave Insurance 
Program, and shall issue regulations providing for the implementation 
of the program. In issuing the regulations, the Director shall require 
that the Director shall provide, or that the agencies shall provide, 
family and medical leave insurance benefits described in section 103 to 
agency employees. The regulations issued under this subsection shall 
include provisions that are the same as regulations issued by the 
Secretary to implement the statutory provisions of sections 103, 105, 
109, and 110, except insofar as the Director may determine, for good 
cause shown and stated together with the regulations, that a 
modification of the regulations would be more effective for the 
implementation of the rights and protections under those sections. The 
regulations shall provide for appropriate remedies and procedures for 
violations of this title.
    (b) Payment.--At the direction of the Director or the head of an 
agency, as specified in the regulations, the Managing Trustee shall pay 
funds from the Insurance Fund for the leave benefits.

           TITLE III--FAMILY AND MEDICAL LEAVE INSURANCE FUND

SEC. 301. ESTABLISHMENT.

    (a) In General.--There is created in the Treasury of the United 
States a trust fund to be known as the Family and Medical Leave 
Insurance Fund. The Insurance Fund shall consist of such amounts as may 
be deposited in, or appropriated to, such fund as provided in this 
section.
    (b) Appropriations to Insurance Fund.--
            (1) Amounts appropriated.--There is appropriated to the 
        Insurance Fund for fiscal year 2011 and each fiscal year 
        thereafter, out of any moneys in the Treasury not otherwise 
        appropriated, amounts equivalent to 100 percent of--
                    (A) the family and medical leave premiums imposed 
                by sections 3101(c) and 3111(c) of the Internal Revenue 
                Code of 1986 with respect to wages (as defined in 
                section 3121 of such Code) reported to the Secretary of 
                the Treasury or the Secretary's delegate under subtitle 
                F of such Code after December 31, 2009, as determined 
                by the Secretary of the Treasury by applying the 
                applicable rates of premium payment under such sections 
                to such wages, which wages shall be certified by the 
                Commissioner of Social Security;
                    (B) on the basis of the records of wages 
                established and maintained by the Commissioner of the 
                Social Security Administration in accordance with such 
                reports;
                    (C) the family and medical leave premiums imposed 
                by section 1401(c) of such Code with respect to self-
                employment income (as defined in section 1402 of such 
                Code) reported to the Secretary of the Treasury or the 
                Secretary's delegate on tax returns under subtitle F of 
                such Code after December 31, 2009, as determined by the 
                Secretary of the Treasury by applying the applicable 
                rate of premium payment under such section 1401(c) to 
                such self-employment income, which self-employment 
                income shall be certified by the Commissioner of Social 
                Security; and
                    (D) on the basis of the records of self-employment 
                income established and maintained by the Commissioner 
                of Social Security in accordance with such returns.
            (2) Transfers.--Such appropriated amounts shall be 
        transferred from time to time from the general fund of the 
        Treasury to the Insurance Fund. Such amounts shall be 
        determined on the basis of estimates by the Secretary of the 
        Treasury of the premiums, specified in paragraph (1), paid to 
        or deposited into the Treasury, and proper adjustments shall be 
        made in amounts subsequently transferred to the extent prior 
        estimates were in excess of or were less than such premiums.
            (3) Investments.--All amounts transferred to the Insurance 
        Fund under paragraph (2) shall be invested by the Managing 
        Trustee referred to in section 302(c) in the same manner and to 
        the same extent as the other assets of the Insurance Fund.

SEC. 302. BOARD OF TRUSTEES.

    (a) Establishment and Membership.--With respect to the Insurance 
Fund, there is established a body to be known as the Board of Trustees 
of the Insurance Fund which shall be composed of the Secretary of the 
Treasury, the Secretary of Labor, the Commissioner of Social Security, 
and the Secretary of Health and Human Services, all ex officio, and of 
two members of the public (both of whom may not be from the same 
political party), who shall be nominated by the President, by and with 
the advice and consent of the Senate.
    (b) Terms and Vacancies.--Members of the Board of Trustees shall 
serve for a period of 4 years. A member of the Board of Trustees 
nominated and confirmed as a member of the public to fill a vacancy 
occurring during a term shall be nominated and confirmed only for the 
remainder of such term. An individual nominated and confirmed as a 
member of the public may serve in such position after the expiration of 
such member's term until the earlier of the date on which the member's 
successor takes office or the date on which a report of the Board is 
first issued under paragraph (2) after the expiration of the member's 
term.
    (c) Managing Trustee and Secretary.--The Secretary of the Treasury 
shall be the Managing Trustee of the Board of Trustees. The Secretary 
of Labor shall serve as the Secretary of the Board of Trustees.
    (d) Basic Duties of the Board of Trustees.--The Board of Trustees 
shall meet not less frequently than once each calendar year. It shall 
be the duty of the Board of Trustees to--
            (1) hold the Insurance Fund;
            (2) report to Congress not later than April 1 of each 
        year--
                    (A) on the operation and status of the Insurance 
                Fund during the fiscal year preceding the fiscal year 
                in which the report is made; and
                    (B) on the expected operation and status of the 
                Insurance Fund during the fiscal year in which the 
                report is made and the next 2 fiscal years;
            (3) report immediately to Congress whenever the Board is of 
        the opinion that the amount in the Insurance Fund is unduly 
        small; and
            (4) review the general policies followed in managing the 
        Insurance Fund, and recommend changes in such policies, 
        including necessary changes in the provisions of law that 
        govern the way in which the Insurance Fund is to be managed.
    (e) Requirements Relating to Annual Report.--The report provided 
for in subsection (d)(2) shall include a statement of the assets of, 
and the disbursements made from, the Insurance Fund during the fiscal 
year preceding the fiscal year in which the report is made, an estimate 
of the expected income to, and disbursements to be made from, the 
Insurance Fund during the fiscal year in which the report is made and 
each of the next two fiscal years, and a statement of the actuarial 
status of the Insurance Fund. Such report shall also include an 
actuarial opinion by an appropriate employee of the Department of Labor 
certifying that the techniques and methodologies used for the report 
are generally accepted within the actuarial profession and that the 
assumptions and cost estimates used for the report are reasonable.
    (f) Liability.--A person serving as a member of the Board of 
Trustees shall not be considered to be a fiduciary and shall not be 
personally liable for actions taken in such capacity with respect to 
the Insurance Fund.

SEC. 303. INVESTMENT OF THE FAMILY AND MEDICAL LEAVE INSURANCE FUND.

    (a) Obligations.--It shall be the duty of the Managing Trustee to 
invest such portion of the Insurance Fund as is not, in the trustee's 
judgment, required to meet current withdrawals. Such investments may be 
made only in interest-bearing obligations of the United States or in 
obligations guaranteed as to both principal and interest by the United 
States.
    (b) Acquisition.--The obligations referred to in subsection (a) may 
be acquired--
            (1) on original issue at the issue price; or
            (2) by purchase of outstanding obligations at the market 
        price.
    (c) Obligations Issued for Purchase by Fund.--The purposes for 
which obligations of the United States may be issued under chapter 31 
of title 31, United States Code, are extended to authorize the issuance 
at par of public debt obligations for purchase by the Insurance Fund. 
Such obligations issued for purchase by the Insurance Fund shall have 
dates of maturity fixed with due regard for the needs of the Insurance 
Fund. Such obligations shall bear interest at a rate equal to--
            (1) except as provided in paragraph (2), the average market 
        yield (computed by the Managing Trustee on the basis of market 
        quotations as of the end of the calendar month preceding the 
        date of such issue) on all marketable interest-bearing 
        obligations of the United States forming a part of the public 
        debt that are not due or callable until after the expiration of 
        four years from the end of such calendar month; or
            (2) in a case in which such average market yield is not a 
        multiple of 0.1 percent, the multiple of 0.1 percent nearest 
        such market yield.
    (d) Other Obligations.--The Managing Trustee may purchase interest-
bearing obligations of the United States that are not described in 
subsection (c) or obligations guaranteed as to both principal and 
interest by the United States, on original issue or at the market 
price, only in cases in which the trustee determines that the purchase 
of obligations described in this paragraph is in the public interest.
    (e) Disposition and Redemption of Obligations.--Any obligations 
acquired by the Insurance Fund (except public debt obligations issued 
exclusively to the Insurance Fund) may be sold by the Managing Trustee 
at the market price, and such public debt obligations may be redeemed 
at par plus accrued interest.
    (f) Crediting of Interest and Proceeds.--The interest on, and the 
proceeds from the sale or redemption of, any obligations held in the 
Insurance Fund shall be credited to and form a part of the Insurance 
Fund.

SEC. 304. PAYMENTS FROM FAMILY AND MEDICAL LEAVE INSURANCE FUND.

    The Managing Trustee shall pay from time to time from the Insurance 
Fund such amounts as the Secretary of Labor certifies are necessary to 
make the payments provided for by section 103, and payments with 
respect to administrative expenses under section 305.

SEC. 305. ADMINISTRATIVE EXPENSES.

    (a) Availability of Insurance Fund.--Under regulations that shall 
be prescribed by the Secretary of Labor, funds shall be made available 
from the Insurance Fund in connection with the administration of this 
Act and the administration of related provisions of the Internal 
Revenue Code of 1986 in the same manner and extent as funds are made 
available from the trust funds referred to in section 201(g) of the 
Social Security Act (42 U.S.C. 401(g)) in connection with the 
administration of the relevant provisions referred to in such section.
    (b) Authorization of Appropriations.--There are authorized to be 
made available for expenditure such amounts as Congress may determine 
to be appropriate to pay the costs of the part of the administration of 
this Act (including start-up costs, technical assistance, and costs for 
small employers electing to participate in the Family and Medical Leave 
Insurance Program) for which the Secretary of Labor is responsible.
    (c) Gifts and Bequests.--The Managing Trustee may accept on behalf 
of the United States money gifts and bequests made unconditionally to 
the Insurance Fund for the benefit of the Insurance Fund or any 
activity financed through the Insurance Fund and such gifts and 
bequests shall be deposited into the Insurance Fund.
    (d) Processing of Tax Data.--Section 232 of the Social Security Act 
(42 U.S.C. 432) shall apply with respect to this Act, in the same 
manner and to the same extent as such section applies with respect to 
title II of the Social Security Act (42 U.S.C. 401 et seq.).

SEC. 306. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.

    (a) Employee Premiums.--Section 3101 of the Internal Revenue Code 
of 1986 (relating to tax on employees) is amended--
            (1) by redesignating subsection (c) as subsection (d); and
            (2) by inserting after subsection (c) the following new 
        subsection:
    ``(c) Family and Medical Leave Premiums.--
            ``(1) In general.--In addition to the taxes imposed by 
        subsections (a) and (b), there is imposed on the income of 
        every individual a family and medical leave premium equal to 
        the applicable percentage of the wages (as defined in section 
        3121(a)) received by the individual with respect to employment 
        (as defined in section 3121(b)).
            ``(2) Applicable percentage.--For purposes of paragraph 
        (1), the applicable percentage is--
                    ``(A) 0.1 percent with respect to periods of 
                employment by a small employer (as defined in section 
                3(b) of the Family Leave Insurance Act of 2009) 
                electing to participate in the Family and Medical Leave 
                Insurance Program (established under section 102 of 
                such Act); and
                    ``(B) 0.2 percent with respect to all other periods 
                of employment.
            ``(3) Exception for certain employment.--Paragraph (1) 
        shall not apply with respect to a period of employment--
                    ``(A) by an employer during which the Secretary of 
                Labor determines the employer has in effect a plan 
                which is equivalent to or better than the Family and 
                Medical Leave Insurance Program (established under 
                section 102 of the Family Leave Insurance Act of 2009); 
                or
                    ``(B) by a small employer (as so defined) who has 
                not elected to participate in such Program.
        For purposes of the preceding sentence, the Secretary of Labor 
        shall prescribe such regulations as may be appropriate or 
        necessary, including regulations requiring documentation of 
        employer programs.''.
    (b) Employer Premiums.--Section 3111 of the Internal Revenue Code 
of 1986 (relating to tax on employers) is amended--
            (1) by redesignating subsection (c) as subsection (d); and
            (2) by inserting after subsection (c) the following new 
        subsection:
    ``(c) Family and Medical Leave Premiums.--
            ``(1) In general.--In addition to the excise taxes imposed 
        by subsections (a) and (b), there is imposed on every employer 
        a family and medical leave premium, with respect to having 
        individuals in such employer's employ, equal to the applicable 
        percentage of the wages (as defined in section 3121(a)) paid by 
        such employer with respect to employment (as defined in section 
        3121(b)).
            ``(2) Applicable percentage.--For purposes of paragraph 
        (1), the applicable percentage is--
                    ``(A) 0.1 percent with respect to small employers 
                (as defined in section 3(b) of the Family Leave 
                Insurance Act of 2009) electing to participate in the 
                Family and Medical Leave Insurance Program (established 
                under section 102 of such Act); and
                    ``(B) 0.2 percent with respect to all other 
                employers.
            ``(3) Exception for certain employers.--Paragraph (1) shall 
        not apply for any period with respect to an employer to whom 
        paragraph (1) of section 3101(c) does not apply by reason of 
        paragraph (3) thereof.''.
    (c) Self-Employed Premiums.--Section 1401 of the Internal Revenue 
Code of 1986 is amended--
            (1) by redesignating subsection (c) as subsection (d); and
            (2) by inserting after subsection (b) the following new 
        subsection:
    ``(c) Family and Medical Leave Premiums.--
            ``(1) In general.--In addition to the taxes imposed by 
        subsections (a) and (b), there is imposed for each taxable 
        year, on the self-employment income of every individual, a 
        family and medical leave premium equal to 0.4 percent of the 
        amount of the self-employment income for such taxable year.
            ``(2) Exception for certain employers.--Paragraph (1) shall 
        not apply for any period with respect to an employer who has 
        not elected to participate in the Family and Medical Leave 
        Insurance Program (established under section 102 of the Family 
        Leave Insurance Act of 2009).''.
    (d) Conforming Amendments to Social Security Act.--Section 201 of 
the Social Security Act (42 U.S.C. 401) is amended--
            (1) by striking ``sections 3101(b) and 3111(b)'' both 
        places it appears in subsection (a)(3) and inserting ``sections 
        3101(b), 3101(c), 3111(b), and 3111(c)'', and
            (2) by striking ``section 1401(b)'' both places it appears 
        in subsection (a)(4) and inserting ``sections 1401(b) and 
        1401(c)''.
    (e) Effective Date.--
            (1) Employment premiums.--The amendments made by 
        subsections (a), (b), and (d)(1) shall apply to wages paid 
        after December 31, 2010.
            (2) Self-employment premiums.--The amendments made by 
        subsections (c) and (d)(2) shall apply to taxable years 
        beginning after December 31, 2010.
                                 <all>
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