I 

116TH CONGRESS 

1ST SESSION H. R. 2190 

To improve accountability of senior officials and other supervisory employees 

of the Department of Labor. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 9, 2019 

Mr. SMUCKER (for himself and Mr. ROONEY of Florida) introduced the following bill; which was referred to the Committee on Education and 

Labor, and in addition to the Committee on Oversight and Reform, for 

a period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To improve accountability of senior officials and other 

supervisory employees of the Department of Labor. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Department of Labor Accountability Act of 2019’’. 


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1 SEC. 2. SENIOR EXECUTIVES: REMOVAL, DEMOTION, OR 

2 SUSPENSION BASED ON PERFORMANCE OR 

3 MISCONDUCT. 

4 (a) AUTHORITY.—The Secretary may, as provided in 

5 this section, reprimand or suspend, involuntarily reassign, 

6 demote, or remove a covered employee from a senior exec7 utive position at the Department if the Secretary deter8 mines that the misconduct or performance of the covered 

9 employee warrants such action. If the Secretary so re10 moves such an individual, the Secretary may remove the 

11 individual from the civil service (as defined in section 2101 

12 of title 5, United States Code). 

13 (b) RIGHTS AND PROCEDURES.— 

14 (1) RIGHTS.—A covered employee who is the 

15 subject of an action under subsection (a) is entitled 

16 to— 

17 (A) advance notice of the action and a file 

18 containing all evidence in support of the pro19 posed action; 

20 (B) be represented by an attorney or other 

21 representative of the covered employee’s choice; 

22 and 

23 (C) grieve the action in accordance with an 

24 internal grievance process that the Secretary, in 

25 consultation with the Whistleblower Protection 


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1 Ombudsman, shall establish for purposes of this 

2 subsection. 

3 (2) TIMING.— 

4 (A) The aggregate period for notice, re5 sponse, and decision on an action under sub6 section (a) may not exceed 15 business days. 

7 (B) The period for the response of a cov8 ered employee to a notice under paragraph 

9 (1)(A) of an action under subsection (a) shall 

10 be 7 business days. 

11 (C) A decision under this paragraph on an 

12 action under subsection (a) shall be issued not 

13 later than 15 business days after notice of the 

14 action is provided to the covered individual 

15 under paragraph (1)(A). The decision shall be 

16 in writing, and shall include the specific reasons 

17 therefor. 

18 (D) The Secretary shall ensure that the 

19 grievance process established under paragraph 

20 (1)(C) takes fewer than 21 days. 

21 (3) FINALITY.—A decision under this sub22 section (a) that is not grieved, and a grievance deci23 sion under paragraph (2)(D), shall be final and con24 clusive. 


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1 (4) JUDICIAL REVIEW.—A covered employee ad2 versely affected by a decision under subsection (a) 

3 that is not grieved, or by a grievance decision under 

4 paragraph (2)(D), may obtain judicial review of such 

5 decision. 

6 (5) ACTION OF THE COURT.—In any case in 

7 which judicial review is sought under paragraph (4), 

8 the court shall review the record and may set aside 

9 any Department action found to be— 

10 (A) arbitrary, capricious, an abuse of dis11 cretion, or otherwise not in accordance with a 

12 provision of law; 

13 (B) obtained without procedures required 

14 by a provision of law having been followed; or 

15 (C) unsupported by substantial evidence. 

16 (c) RELATION TO OTHER PROVISIONS OF LAW.— 

17 Section 3592(b)(1) of title 5, United States Code, and the 

18 procedures under section 7543(b) of such title do not 

19 apply to an action under subsection (a). 

20 SEC. 3. EMPLOYEES: REMOVAL, DEMOTION, OR SUSPEN21 SION BASED ON PERFORMANCE OR MIS22 CONDUCT. 

23 (a) AUTHORITY.—The Secretary may remove, de24 mote, or suspend a covered individual who is an employee 

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1 formance or misconduct of the covered individual warrants 

2 such removal, demotion, or suspension. If the Secretary 

3 so removes, demotes, or suspends such a covered indi4 vidual, the Secretary may— 

5 (1) remove the covered individual from the civil 

6 service (as defined in section 2101 of title 5, United 

7 States Code); 

8 (2) demote the covered individual by means of 

9 a reduction in grade for which the covered individual 

10 is qualified, that the Secretary determines is appro11 priate, and that reduces the annual rate of pay of 

12 the covered individual; or 

13 (3) suspend the covered individual. 

14 (b) PAY OF CERTAIN DEMOTED INDIVIDUALS.— 

15 (1) Notwithstanding any other provision of law, 

16 any covered individual subject to a demotion under 

17 subsection (a) shall, beginning on the date of such 

18 demotion, receive the annual rate of pay applicable 

19 to such grade. 

20 (2)(A) A covered individual so demoted may not 

21 be placed on administrative leave during the period 

22 during which an appeal (if any) under this section 

23 is ongoing, and may only receive pay if the covered 

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1 crued unused annual, sick, family medical, military, 

2 or court leave. 

3 (B) If a covered individual so demoted does not 

4 report for duty or receive approval to use accrued 

5 unused leave, such covered individual shall not re6 ceive pay or other benefits pursuant to subsection 

7 (d)(5). 

8 (c) PROCEDURES.— 

9 (1) IN GENERAL.—(A) The aggregate period 

10 for notice, response, and final decision in a removal, 

11 demotion, or suspension under this section may not 

12 exceed 15 business days. 

13 (B) The period for the response of a covered in14 dividual to a notice of a proposed removal, demotion, 

15 or suspension under this section shall be 7 business 

16 days. 

17 (C) Chapter 43 and paragraph (3) of subsection 

18 (b) of section 7513 of title 5, United States Code, 

19 shall apply with respect to a removal, demotion, or 

20 suspension under this section. 

21 (D) The procedures in this subsection shall su22 persede any collective bargaining agreement to the 

23 extent that such agreement is inconsistent with such 

24 procedures. 


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1 (2) DEADLINE FOR FINAL DECISION.—The Sec2 retary shall issue a final decision with respect to a 

3 removal, demotion, or suspension under this section 

4 not later than 15 business days after the Secretary 

5 provides notice, including a file containing all the 

6 evidence in support of the proposed action, to the 

7 covered individual of the removal, demotion, or sus8 pension. The decision shall be in writing and shall 

9 include the specific reasons therefor. 

10 (3) APPEAL TO MERIT SYSTEMS PROTECTION

11 BOARD.— 

12 (A) Subject to subparagraph (B) and sub13 section (d), any removal or demotion under this 

14 section, and any suspension of more than 14 

15 days under this section, may be appealed to the 

16 Merit Systems Protection Board, which shall 

17 refer such appeal to an administrative judge 

18 pursuant to section 7701(b)(1) of title 5. 

19 (B) An appeal under subparagraph (A) of 

20 a removal, demotion, or suspension may only be 

21 made if such appeal is made not later than 10 

22 business days after the date of such removal, 

23 demotion, or suspension. 

24 (d) EXPEDITED REVIEW.— 


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1 (1) Upon receipt of an appeal under subsection 

2 (c)(3)(A), the administrative judge shall expedite 

3 any such appeal under section 7701(b)(1) of title 5, 

4 United States Code, and, in any such case, shall 

5 issue a final and complete decision not later than 

6 180 days after the date of the appeal. 

7 (2)(A) Notwithstanding section 7701(c)(1)(B) 

8 of title 5, United States Code, the administrative 

9 judge shall uphold the decision of the Secretary to 

10 remove, demote, or suspend an employee under sub11 section (a) if the decision is supported by substantial 

12 evidence. 

13 (B) Notwithstanding title 5, United States 

14 Code, or any other provision of law, if the decision 

15 of the Secretary is supported by substantial evi16 dence, the administrative judge shall not mitigate 

17 the penalty prescribed by the Secretary. 

18 (3)(A) The decision of the administrative judge 

19 under paragraph (1) may be appealed to the Merit 

20 Systems Protection Board. 

21 (B) Notwithstanding section 7701(c)(1)(B) of 

22 title 5, United States Code, the Merit Systems Pro23 tection Board shall uphold the decision of the Sec24 retary to remove, demote, or suspend an employee 


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1 under subsection (a) if the decision is supported by 

2 substantial evidence. 

3 (C) Notwithstanding title 5, United States 

4 Code, or any other provision of law, if the decision 

5 of the Secretary is supported by substantial evi6 dence, the Merit Systems Protection Board shall not 

7 mitigate the penalty prescribed by the Secretary. 

8 (4) In any case in which the administrative 

9 judge cannot issue a decision in accordance with the 

10 180-day requirement under paragraph (1), the Merit 

11 Systems Protection Board shall, not later than 14 

12 business days after the expiration of the 180-day pe13 riod, submit to Congress a report that explains the 

14 reasons why a decision was not issued in accordance 

15 with such requirement. 

16 (5) A decision of the Merit Systems Protection 

17 Board under paragraph (3) may be appealed to the 

18 United States Court of Appeals for the Federal Cir19 cuit pursuant to section 7703 of title 5, United 

20 States Code, or to any court of appeals of competent 

21 jurisdiction pursuant to subsection (b)(1)(B) of such 

22 section. 

23 (6) The Merit Systems Protection Board may 

24 not stay any removal or demotion under this section, 

25 except as provided in section 1214(b) of title 5. 


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1 (7) During the period beginning on the date on 

2 which a covered individual appeals a removal from 

3 the civil service under subsection (c) and ending on 

4 the date that the United States Court of Appeals for 

5 the Federal Circuit issues a final decision on such 

6 appeal, such covered individual may not receive any 

7 pay, awards, bonuses, incentives, allowances, dif8 ferentials, student loan repayments, special pay9 ments, or benefits related to the employment of the 

10 individual by the Department. 

11 (8) To the maximum extent practicable, the 

12 Secretary shall provide to the Merit Systems Protec13 tion Board such information and assistance as may 

14 be necessary to ensure an appeal under this sub15 section is expedited. 

16 (9) If an employee prevails on appeal under this 

17 section, the employee shall be entitled to backpay (as 

18 provided in section 5596 of title 5, United States 

19 Code). 

20 (10) If an employee who is subject to a collec21 tive bargaining agreement chooses to grieve an ac22 tion taken under this section through a grievance 

23 procedure provided under the collective bargaining 

24 agreement, the timelines and procedures set forth in 

25 subsection (c) and this subsection shall apply. 


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1 (e) WHISTLEBLOWER PROTECTION.— 

2 (1) In the case of a covered individual seeking 

3 corrective action (or on behalf of whom corrective 

4 action is sought) from the Office of Special Counsel 

5 based on an alleged prohibited personnel practice de6 scribed in section 2302(b) of title 5, United States 

7 Code, the Secretary may not remove, demote, or sus8 pend such covered individual under subsection (a) 

9 without the approval of the Special Counsel under 

10 section 1214(f) of title 5. 

11 (2) In the case of a covered individual who has 

12 made a whistleblower disclosure to the Whistleblower 

13 Protection Ombudsman, the Secretary may not re14 move, demote, or suspend such covered individual 

15 under subsection (a) until— 

16 (A) in the case in which the Assistant Sec17 retary determines to refer the whistleblower dis18 closure under subsection (e) to an office or 

19 other investigative entity, a final decision with 

20 respect to the whistleblower disclosure has been 

21 made by such office or other investigative enti22 ty; or 

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1 blower disclosure under such section, the Assist2 ant Secretary makes such determination. 

3 (f) TERMINATION OF INVESTIGATIONS BY OFFICE OF

4 SPECIAL COUNSEL.— 

5 (1) Notwithstanding any other provision of law, 

6 the Special Counsel (established by section 1211 of 

7 title 5, United States Code) may terminate an inves8 tigation of a prohibited personnel practice alleged by 

9 an employee or former employee of the Department 

10 after the Special Counsel provides to the employee 

11 or former employee a written statement of the rea12 sons for the termination of the investigation. 

13 (2) Such statement may not be admissible as 

14 evidence in any judicial or administrative proceeding 

15 without the consent of such employee or former em16 ployee. 

17 (g) VACANCIES.—In the case of a covered individual 

18 who is removed or demoted under subsection (a), to the 

19 maximum extent feasible, the Secretary shall fill the va20 cancy arising as a result of such removal or demotion. 

21 SEC. 4. REDUCTION OF BENEFITS OF EMPLOYEES CON22 VICTED OF CERTAIN CRIMES. 

23 (a) REDUCTION OF ANNUITY FOR REMOVED EM24 PLOYEE.— 


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1 (1) IN GENERAL.—The Secretary shall order 

2 that the covered service of an employee of the De3 partment removed from a position for performance 

4 or misconduct under section 2 or any other provision 

5 of law shall not be taken into account for purposes 

6 of calculating an annuity with respect to such indi7 vidual under chapter 83 or chapter 84 of title 5, 

8 United States Code, if— 

9 (A) the Secretary determines that the indi10 vidual is convicted of a felony (and the convic11 tion is final) that influenced the individual’s 

12 performance while employed in the position; 

13 (B) before such order is made, the indi14 vidual is afforded— 

15 (i) notice of the proposed order; and 

16 (ii) an opportunity to respond to the 

17 proposed order by not later than ten busi18 ness days following receipt of such notice; 

19 and 

20 (C) the Secretary issues the order— 

21 (i) in the case of a proposed order to 

22 which an individual responds under sub23 paragraph (B)(ii), not later than five busi24 ness days after receiving the response of 

25 the individual; or 


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1 (ii) in the case of a proposed order to 

2 which an individual does not respond, not 

3 later than 15 business days after the Sec4 retary provides notice to the individual 

5 under subparagraph (B)(i). 

6 (2) APPEAL.—Any individual with respect to 

7 whom an annuity is reduced under this subsection 

8 may appeal the reduction to the Director of the Of9 fice of Personnel Management pursuant to such reg10 ulations as the Director may prescribe for purposes 

11 of this subsection. 

12 (b) REDUCTION OF ANNUITY FOR RETIRED EM13 PLOYEE.— 

14 (1) IN GENERAL.—The Secretary may order 

15 that the covered service of an individual who the 

16 Secretary proposes to remove for performance or 

17 misconduct under section 2 or any other provision of 

18 law but who leaves employment at the Department 

19 prior to the issuance of a final decision with respect 

20 to such action shall not be taken into account for 

21 purposes of calculating an annuity with respect to 

22 such individual under chapter 83 or chapter 84 of 

23 title 5, United States Code, if— 

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1 tion is final) that influenced the individual’s 

2 performance while employed in the position; 

3 (B) before such order is made, the indi4 vidual is afforded— 

5 (i) notice of the proposed order; and 

6 (ii) an opportunity to respond to the 

7 proposed order by not later than ten busi8 ness days following receipt of such notice; 

9 and 

10 (C) the Secretary issues the order— 

11 (i) in the case of a proposed order to 

12 which an individual responds under sub13 paragraph (B)(ii), not later than five busi14 ness days after receiving the response of 

15 the individual; or 

16 (ii) in the case of a proposed order to 

17 which an individual does not respond, not 

18 later than 15 business days after the Sec19 retary provides notice to the individual 

20 under subparagraph (B)(i). 

21 (2) APPEAL.—Upon the issuance of an order by 

22 the Secretary under paragraph (1), the individual 

23 shall have an opportunity to appeal the order to the 

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1 fore the date that is seven business days after the 

2 date of such issuance. 

3 (3) FINAL DECISION.—The Director of the Of4 fice of Personnel Management shall make a final de5 cision with respect to an appeal under paragraph (2) 

6 within 30 business days of receiving the appeal. 

7 (c) ADMINISTRATIVE REQUIREMENTS.—Not later 

8 than 37 business days after the Secretary issues a final 

9 order under subsection (a) or (b) with respect to an indi10 vidual, the Director of the Office of Personnel Manage11 ment shall recalculate the annuity of the individual. 

12 (d) LUMP-SUM ANNUITY CREDIT.—Any individual 

13 with respect to whom an annuity is reduced under sub14 section (a) or (b) shall be entitled to be paid so much of 

15 such individual’s lump-sum credit as is attributable to the 

16 period of covered service. 

17 (e) SPOUSE OR CHILDREN EXCEPTION.— 

18 (1) The Secretary, in consultation with the Di19 rector of the Office of Personnel Management, shall 

20 prescribe regulations that may provide for the pay21 ment to the spouse or children of any individual re22 ferred to in subsection (a) or (b) of any amounts 

23 which (but for this subsection) would otherwise have 

24 been nonpayable by reason of such subsections. 


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1 (2) Regulations prescribed under paragraph (1) 

2 shall be consistent with the requirements of sections 

3 8332(o)(5) and 8411(l)(5) of title 5, United States 

4 Code, as the case may be. 

5 SEC. 5. RECOUPMENT OF BONUSES OR AWARDS PAID TO 

6 EMPLOYEES OF DEPARTMENT. 

7 (a) IN GENERAL.—Notwithstanding any other provi8 sion of law, the Secretary may issue an order directing 

9 an employee of the Department to repay the amount, or 

10 a portion of the amount, of any award or bonus paid to 

11 the employee under title 5, United States Code, including 

12 under chapter 45 or 53 of such title, if— 

13 (1) the Secretary determines that the individual 

14 engaged in misconduct or poor performance prior to 

15 payment of the award or bonus, and that such 

16 award or bonus would not have been paid, in whole 

17 or in part, had the misconduct or poor performance 

18 been known prior to payment; 

19 (2) before such repayment, the employee is af20 forded— 

21 (A) notice of the proposed order; and 

22 (B) an opportunity to respond to the pro23 posed order by not later than 10 business days 

24 after the receipt of such notice; and 

25 (3) the Secretary issues the order— 


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1 (A) in the case of a proposed order to 

2 which an individual responds under paragraph 

3 (2)(B), not later than five business days after 

4 receiving the response of the individual; or 

5 (B) in the case of a proposed order to 

6 which an individual does not respond, not later 

7 than 15 business days after the Secretary pro8 vides notice to the individual under paragraph 

9 (2)(A). 

10 (b) APPEAL OF ORDER OF SECRETARY.— 

11 (1) Upon the issuance of an order by the Sec12 retary under subsection (a) with respect to an indi13 vidual, the individual shall have an opportunity to 

14 appeal the order to the Director of the Office of Per15 sonnel Management before the date that is seven 

16 business days after the date of such issuance. 

17 (2) The Director shall make a final decision 

18 with respect to an appeal under paragraph (1) with19 in 30 business days after receiving such appeal. 

20 (c) EFFECTIVE DATE.—Chapter 45 or 53 of title 5, 

21 United States Code, shall apply with respect to an award 

22 or bonus paid by the Secretary to any employee of the 

23 Department on or after the date of the enactment of this 

24 Act. 


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1 (d) CONSTRUCTION.—Nothing in this Act or the 

2 amendments made by this Act may be construed to modify 

3 the certification issued by the Office of Personnel Manage4 ment and the Office of Management and Budget regarding 

5 the performance appraisal system of the Senior Executive 

6 Service of the Department. 

7 SEC. 6. RECOUPMENT OF RELOCATION EXPENSES PAID ON 

8 BEHALF OF EMPLOYEES OF DEPARTMENT. 

9 (a) IN GENERAL.—Notwithstanding any other provi10 sion of law, the Secretary may issue an order directing 

11 an employee of the Department to repay the amount, or 

12 a portion of the amount, paid to or on behalf of the em13 ployee under title 5, United States Code, for relocation 

14 expenses, including any expenses under section 5724 or 

15 5724a of such title, or if— 

16 (1) the Secretary determines that relocation ex17 penses were paid following an act of fraud or mal18 feasance that influenced the authorization of the re19 location expenses; 

20 (2) before such repayment, the employee is af21 forded— 

22 (A) notice of the proposed order; and 

23 (B) an opportunity to respond to the pro24 posed order not later than ten business days 

25 following the receipt of such notice; and 


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1 (3) the Secretary issues the order— 

2 (A) in the case of a proposed order to 

3 which an individual responds under paragraph 

4 (2)(B), not later than five business days after 

5 receiving the response of the individual; or 

6 (B) in the case of a proposed order to 

7 which an individual does not respond, not later 

8 than 15 business days after the Secretary pro9 vides notice to the individual under paragraph 

10 (2)(A). 

11 (b) APPEAL OF ORDER OF SECRETARY.— 

12 (1) Upon the issuance of an order by the Sec13 retary under subsection (a) with respect to an indi14 vidual, the individual shall have an opportunity to 

15 appeal the order to the Director of the Office of Per16 sonnel Management before the date that is seven 

17 business days after the date of such issuance. 

18 (2) The Director shall make a final decision 

19 with respect to an appeal under paragraph (1) with20 in 30 days after receiving such appeal. 

21 (c) EFFECTIVE DATE.—Chapter 45 or 53 of title 5, 

22 United States Code, shall apply with respect to an amount 

23 paid by the Secretary to or on behalf of an employee of 

24 the Department for relocation expenses on or after the 

25 date of the enactment of this Act. 


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1 SEC. 7. MAJOR ADVERSE ACTIONS INVOLVING PROFES2 SIONAL CONDUCT OR COMPETENCE. 

3 (a) ESTABLISHMENT OF DISCIPLINARY APPEALS

4 BOARD.— 

5 (1) APPOINTMENT.—The Secretary shall ap6 point 3 employees of the Department who are senior 

7 executives or career senior executives to serve on a 

8 Disciplinary Appeals Board (hereafter referred to as 

9 the ‘‘Board’’) which shall have the exclusive author10 ity to review any disciplinary action taken against a 

11 covered employee of the Department which arises 

12 out of or includes a question of professional mis13 conduct or competence. 

14 (2) POLITICAL MAKEUP OF THE BOARD.—At 

15 least one member of the Board shall be of a dif16 ferent political party than the other two members. 

17 (b) INITIAL PROCEDURES.— 

18 (1) RIGHTS OF COVERED EMPLOYEES.— 

19 (A) STATEMENT OF CHARGES AND EVI20 DENCE.—In any case in which charges are 

21 brought against a covered employee which 

22 arises out of, or includes, a question of profes23 sional conduct or competence which could result 

24 in a major adverse action, the covered employee 

25 is entitled, within the aggregate time period 

26 specified in paragraph (4), to the following: 


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1 (i) Advance written notice from the 

2 deciding official specifically stating the 

3 basis for each charge, the adverse actions 

4 that could be taken if the charges are sus5 tained, a statement of any specific law, 

6 regulation, policy, procedure, practice, or 

7 other specific instruction that has been vio8 lated with respect to each charge, and a 

9 file containing all the evidence in support 

10 of each charge, except that the require11 ment for notification in advance may be 

12 waived if there is reasonable cause to be13 lieve that the employee has committed a 

14 crime for which the employee may be im15 prisoned. 

16 (ii) The opportunity, within the time 

17 period provided for in paragraph (4), to 

18 present an answer orally and in writing to 

19 the deciding official, who shall be an offi20 cial higher in rank than the charging offi21 cial, and to submit affidavits and other 

22 documentary evidence in support of the an23 swer. The period for the response of a cov24 ered employee shall be seven business days. 


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1 (B) RIGHT TO REPRESENTATION.—In any 

2 case described in paragraph (1), the employee is 

3 entitled to be represented by an attorney or 

4 other representative of the employee’s choice at 

5 all stages of the case. 

6 (2) FINAL DECISION BY DECIDING OFFICER.— 

7 After considering the employee’s answer, if any, and 

8 within the time period provided for in paragraph 

9 (5)(B), the deciding official shall render a decision 

10 on the charges. The decision shall be in writing and 

11 shall include the deciding official provides notice on 

12 the charges for purposes of paragraph (1)(A)(i). 

13 (3) APPEALS TO THE BOARD.—The Secretary shall 

14 require that any appeal to a Board from a decision to im15 pose a major adverse action shall be received within seven 

16 business days after the date of service of the written deci17 sion on the covered employee. 

18 (4) TIMING.—The aggregate period for the resolution 

19 of charges against an employee under this subsection may 

20 not exceed 15 business days. 

21 (5) SUPERCESSION OF ANY COLLECTIVE BAR22 GAINING AGREEMENT.—The procedures in this subsection 

23 shall supersede any collective bargaining agreement to the 

24 extent that such agreement is inconsistent with such pro25 cedures. 


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1 (c) PROCEDURES OF APPEALS BEFORE THE

2 BOARD.— 

3 (1) INITIAL DETERMINATION.—When the 

4 Board convenes to consider an appeal in a case 

5 under this section, the Board, before proceeding to 

6 consider the merits of the appeal, shall determine 

7 whether the case is properly before it. 

8 (2) DECISIONS BY THE BOARD.—Upon hearing 

9 such an appeal, the Board shall, with respect to each 

10 charge appealed to the Board, sustain the charge, 

11 dismiss the charge, or sustain the charge in part and 

12 dismiss the charge in part. If the deciding official is 

13 sustained (in whole or in part) with respect to any 

14 such charge, the Board shall— 

15 (A) approve the action as imposed; 

16 (B) approve the action with modification, 

17 reduction, or exception; or 

18 (C) reverse the action. 

19 (3) RIGHT TO ORAL HEARING.—A Board shall 

20 afford an employee appealing an adverse action 

21 under this section an opportunity for an oral hear22 ing. If such a hearing is held, the Board shall pro23 vide the employee with a transcript of the hearing. 

24 (4) REPRESENTATION OF MANAGEMENT.—The 

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1 ment to represent management in any case before a 

2 Board. 

3 (5) DEADLINE FOR DECISION.—The Board 

4 shall render a decision in any case within 45 days 

5 of completion of the hearing, if there is a hearing, 

6 and in any event no later than 120 days after the 

7 appeal commenced. 

8 (d) ACTIONS BY THE SECRETARY.— 

9 (1) IF THE SECRETARY AGREES WITH THE DE10 CISION OF THE BOARD.—After resolving any ques11 tion as to whether a matter involves professional 

12 conduct or competence, the Secretary shall cause to 

13 be executed the decision of the Board in a timely 

14 manner and in any event in not more than 90 days 

15 after the decision of the Board is received by the 

16 Secretary. Pursuant to the Board’s decision, the 

17 Secretary may order reinstatement, award back pay, 

18 and provide such other remedies as the Board found 

19 appropriate relating directly to the proposed action, 

20 including expungement of records relating to the ac21 tion. 

22 (2) IF THE SECRETARY DISAGREES WITH A DE23 CISION BY THE BOARD.— 

24 (A) CONTRARY TO EVIDENCE OR UNLAW25 FUL.—If the Secretary finds a decision of the 


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1 Board to be clearly contrary to the evidence or 

2 unlawful, the Secretary may— 

3 (i) reverse the decision of the Board; 

4 or 

5 (ii) vacate the decision of the Board 

6 and remand the matter to the Board for 

7 further consideration. 

8 (B) NOT JUSTIFIED BY THE NATURE OF

9 THE CHARGES.—If the Secretary finds the deci10 sion of the Board (while not clearly contrary to 

11 the evidence or unlawful) to be not justified by 

12 the nature of the charges, the Secretary may 

13 mitigate the adverse action imposed. 

14 (3) SECRETARY’S ACTION FINAL.—The Sec15 retary’s execution of a Board’s decision shall be the 

16 final administrative action in the case. 

17 (e) JUDICIAL REVIEW.— 

18 (1) IN GENERAL.—A covered employee ad19 versely affected by a final order or decision of a 

20 Board (as reviewed by the Secretary) may obtain ju21 dicial review of the order or decision. 

22 (2) ACTIONS BY THE COURT.—In any case in 

23 which judicial review is sought under this subsection, 

24 the court shall review the record and hold unlawful 


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1 and set aside any agency action, finding, or conclu2 sion found to be— 

3 (A) arbitrary, capricious, an abuse of dis4 cretion, or otherwise not in accordance with 

5 law; 

6 (B) obtained without procedures required 

7 by law, rule, or regulation having been followed; 

8 or 

9 (C) unsupported by substantial evidence. 

10 SEC. 8. PROCEDURES FOR OTHER ADVERSE ACTIONS NOT 

11 RELATING TO MISCONDUCT OR COM12 PETENCE. 

13 (a) PROCEDURES PRESCRIBED BY THE SEC14 RETARY.— 

15 (1) AUTHORITY.—The Secretary shall prescribe 

16 by regulation grievance procedures for the consider17 ation of grievances of a covered employee arising 

18 from adverse personnel actions in which each action 

19 taken either— 

20 (A) is not a major adverse action; or 

21 (B) does not arise out of a question of pro22 fessional misconduct or competence. 

23 (2) REQUIREMENTS.—Grievance procedures 

24 prescribed under subsection (a) shall include the fol25 lowing: 


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1 (A) A right to formal review by an impar2 tial examiner within the Department, who, in 

3 the case of an adverse action arising from a 

4 question of professional conduct or competence, 

5 shall be selected from the Disciplinary Appeals 

6 Board established under section 7. 

7 (B) A right to a prompt report of the find8 ings and recommendations by the impartial ex9 aminer. 

10 (C) A right to a prompt review of the ex11 aminer’s findings and recommendations by an 

12 official of a higher level than the official who 

13 decided upon the action. That official may ac14 cept, modify, or reject the examiner’s rec15 ommendations. 

16 (b) OPTION OF EMPLOYEE COVERED BY COLLEC17 TIVE BARGAINING AGREEMENT.—In the case of an em18 ployee who is a member of a collective bargaining unit 

19 under chapter 71 of title 5, the employee may seek review 

20 of an adverse action described in subsection (a) either 

21 under the grievance procedures provided through regula22 tions prescribed under subsection (a) or through grievance 

23 procedures determined through collective bargaining, but 

24 not under both. The employee shall elect which grievance 

25 procedure to follow. Any such election may not be revoked. 


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1 (c) RIGHTS OF EMPLOYEES.—A covered employee fil2 ing a grievance under this section shall be entitled to the 

3 following: 

4 (1) In any case in which charges are brought 

5 against covered employee which could result in a 

6 major adverse action and which do not involve pro7 fessional conduct or competence, the employee is en8 titled to notice and an opportunity to answer with 

9 respect to those charges. 

10 (2) In any other case in which charges are 

11 brought against a covered employee the employee is 

12 entitled, within the aggregate time period specified 

13 in paragraph (3)(A), to— 

14 (A) written notice stating the specific rea15 son for the proposed action; and 

16 (B) time to answer orally and in writing 

17 and to furnish affidavits and other documentary 

18 evidence in support of the answer. 

19 (3)(A) The aggregate period for the resolution 

20 of charges against an employee under paragraph (1) 

21 or (2) may not exceed 15 business days. 

22 (B) The period for the response of an employee 

23 under paragraph (1) or (2)(B) to written notice of 

24 charges under paragraph (1) or (2)(A), as applica25 ble, shall be seven business days. 


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1 (C) The deciding official shall render a decision 

2 on charges under paragraph (1) or (2) not later 

3 than 15 business days after notice is provided on the 

4 charges for purposes of paragraph (1) or (2)(A), as 

5 applicable. 

6 (d) RIGHT TO REPRESENTATION.—In any review of 

7 an adverse action under the grievance procedures pre8 scribed under subsection (a), the employee is entitled to 

9 be represented by an attorney or other representative of 

10 the employee’s choice at all stages of the case. 

11 SEC. 9. IMPROVEMENT OF TRAINING FOR SUPERVISORS. 

12 The Secretary shall provide to each employee of the 

13 Department who is employed as a supervisor periodic 

14 training on the following: 

15 (1) The rights of whistleblowers and how to ad16 dress a report by an employee of a hostile work envi17 ronment, reprisal, or harassment. 

18 (2) How to effectively motivate, manage, and 

19 reward the employees who report to the supervisor. 

20 (3) How to effectively manage employees who 

21 are performing at an unacceptable level and access 

22 assistance from the human resources office of the 

23 Department and the Office of the General Counsel 

24 of the Department with respect to those employees. 


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1 SEC. 10. ASSESSMENT AND REPORT ON EFFECT ON SENIOR 

2 EXECUTIVES AT THE DEPARTMENT OF 

3 LABOR. 

4 (a) IN GENERAL.—Not later than two years after the 

5 date of the enactment of this Act, the Secretary shall— 

6 (1) measure and assess the effect of the enact7 ment of this Act on the morale, engagement, hiring, 

8 promotion, retention, discipline, and productivity of 

9 individuals in senior executive positions at the De10 partment; and 

11 (2) submit to Congress a report on the findings 

12 of the Secretary with respect to the measurement 

13 and assessment carried out under paragraph (1). 

14 (b) ELEMENTS.—The assessment required by sub15 section (a)(1) shall include the following: 

16 (1) With respect to engagement, trends in mo17 rale of individuals in senior executive positions and 

18 individuals aspiring to senior executive positions. 

19 (2) With respect to promotions— 

20 (A) whether the Department is experi21 encing an increase or decrease in the number of 

22 employees participating in leadership develop23 ment and candidate development programs with 

24 the intention of becoming candidates for senior 

25 executive positions; and 


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1 (B) trends in applications to senior execu2 tive positions within the Department. 

3 (3) With respect to retention— 

4 (A) trends in retirement rates of individ5 uals in senior executive positions at the Depart6 ment; 

7 (B) trends in quit rates of individuals in 

8 senior executive positions at the Department; 

9 (C) rates of transfer of— 

10 (i) individuals from other Federal 

11 agencies into senior executive positions at 

12 the Department; and 

13 (ii) individuals from senior executive 

14 positions at the Department to other Fed15 eral agencies; and 

16 (D) trends in total loss rates by job func17 tion. 

18 (4) With respect to disciplinary processes— 

19 (A) regarding individuals in senior execu20 tive positions at the Department who are the 

21 subject of disciplinary action— 

22 (i) the length of the disciplinary proc23 ess in days for such individuals both before 

24 the date of the enactment of this Act and 


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1 under the provisions of this Act described 

2 in subsection (a)(1); and 

3 (ii) the extent to which appeals by 

4 such individuals are upheld under such 

5 provisions as compared to before the date 

6 of the enactment of this Act; 

7 (B) the components or offices of the De8 partment which experience the greatest number 

9 of proposed adverse actions against individuals 

10 in senior executive positions and components 

11 and offices which experience the least relative to 

12 the size of the components or offices’ total 

13 number of senior executive positions; 

14 (C) the tenure of individuals in senior ex15 ecutive positions who are the subject of discipli16 nary action; 

17 (D) whether the individuals in senior exec18 utive positions who are the subject of discipli19 nary action have previously been disciplined; 

20 and 

21 (E) the number of instances of disciplinary 

22 action taken by the Secretary against individ23 uals in senior executive positions at the Depart24 ment as compared to governmentwide discipline 

25 against individuals in Senior Executive Service 


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1 positions (as defined in section 3132(a) of title 

2 5, United States Code) as a percentage of the 

3 total number of individuals in senior executive 

4 positions at the Department and Senior Execu5 tive Service positions (as so defined). 

6 (5) With respect to hiring— 

7 (A) the degree to which the skills of newly 

8 hired individuals in senior executive positions at 

9 the Department are appropriate with respect to 

10 the needs of the Department; 

11 (B) the types of senior executive positions 

12 at the Department most commonly filled under 

13 the authorities in the provisions described in 

14 subsection (a)(1); 

15 (C) the number of senior executive posi16 tions at the Department filled by hires outside 

17 of the Department compared to hires from 

18 within the Department; 

19 (D) the length of time to fill a senior exec20 utive position at the Department and for a new 

21 hire to begin working in a new senior executive 

22 position; 

23 (E) the mission-critical deficiencies filled 

24 by newly hired individuals in senior executive 

25 positions and the connection between missionVerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190

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1 critical deficiencies filled under the provisions 

2 described in subsection (a) and annual perform3 ance of the Department; 

4 (F) the satisfaction of applicants for senior 

5 executive positions at the Department with the 

6 hiring process, including the clarity of job an7 nouncements, reasons for withdrawal of applica8 tions, communication regarding status of appli9 cations, and timeliness of hiring decision; and 

10 (G) the satisfaction of newly hired individ11 uals in senior executive positions at the Depart12 ment with the hiring process and the process of 

13 joining and becoming oriented with the Depart14 ment. 

15 SEC. 11. MEASUREMENT OF DEPARTMENT OF LABOR DIS16 CIPLINARY PROCESS OUTCOMES AND EFFEC17 TIVENESS. 

18 (a) MEASURING AND COLLECTING.— 

19 (1) IN GENERAL.—The Secretary shall measure 

20 and collect information on the outcomes of discipli21 nary actions carried out by the Department during 

22 the three-year period ending on the date of the en23 actment of this Act and the effectiveness of such ac24 tions. 


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1 (2) ELEMENTS.—In measuring and collecting 

2 pursuant to paragraph (1), the Secretary shall meas3 ure and collect information regarding the following: 

4 (A) The average time from the initiation of 

5 an adverse action against an employee at the 

6 Department to the final resolution of that ac7 tion. 

8 (B) The number of distinct steps and lev9 els of review within the Department involved in 

10 the disciplinary process and the average length 

11 of time required to complete these steps. 

12 (C) The rate of use of alternate discipli13 nary procedures compared to traditional dis14 ciplinary procedures and the frequency with 

15 which employees who are subject to alternative 

16 disciplinary procedures commit additional of17 fenses. 

18 (D) The number of appeals from adverse 

19 actions filed against employees of the Depart20 ment, the number of appeals upheld, and the 

21 reasons for which the appeals were upheld. 

22 (E) The use of paid administrative leave 

23 during the disciplinary process and the length 

24 of such leave. 

25 (b) REPORT.— 


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1 (1) IN GENERAL.—Not later than December 31, 

2 2020, the Secretary shall submit to Congress a re3 port on the disciplinary procedures and actions of 

4 the Department. 

5 (2) CONTENTS.—The report submitted under 

6 paragraph (1) shall include the following: 

7 (A) The information collected under sub8 section (a). 

9 (B) The findings of the Secretary with re10 spect to the measurement and collection carried 

11 out under subsection (a). 

12 (C) An analysis of the disciplinary proce13 dures and actions of the Department. 

14 (D) Suggestions for improving the discipli15 nary procedures and actions of the Department. 

16 (E) Such other matters as the Secretary 

17 considers appropriate. 

18 SEC. 12. DEFINITIONS. 

19 In this Act the following definitions apply: 

20 (1) COVERED EMPLOYEE.—The term ‘‘covered 

21 employee’’ means— 

22 (A) a career appointee (as that term is de23 fined in section 3132(a)(4) of title 5, United 

24 States Code); 


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1 (B) any individual who occupies an admin2 istrative or executive position; or 

3 (C) an individual occupying a senior execu4 tive position. 

5 (2) COVERED INDIVIDUAL.—The term ‘‘covered 

6 individual’’, for purposes of section 3, means an in7 dividual occupying a position at the Department, but 

8 does not include— 

9 (A) an individual occupying a senior execu10 tive position; 

11 (B) an individual who has not completed a 

12 probationary or trial period; or 

13 (C) a political appointee. 

14 (3) COVERED SERVICE.—The term ‘‘covered 

15 service’’ means, with respect to an individual subject 

16 to a removal for performance or misconduct, the pe17 riod of service beginning on the date that the Sec18 retary determines under such applicable provision 

19 that the individual engaged in activity that gave rise 

20 to such action and ending on the date that the indi21 vidual is removed from or leaves a position of em22 ployment at the Department prior to the issuance of 

23 a final decision with respect to such action. 

24 (4) DEPARTMENT.—The term ‘‘Department’’ 

25 means the Department of Labor. 


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1 (5) GRADE.—The term ‘‘grade’’ has the mean2 ing given such term in section 7511(a) of title 5. 

3 (6) LUMP-SUM CREDIT.—The term ‘‘lump-sum 

4 credit’’ has the meaning given such term in section 

5 8331(8) or section 8401(19) of title 5, United States 

6 Code, as the case may be. 

7 (7) MISCONDUCT.—The term ‘‘misconduct’’ in8 cludes neglect of duty, malfeasance, or failure to ac9 cept a directed reassignment or to accompany a po10 sition in a transfer of function. 

11 (8) POLITICAL APPOINTEE.—The term ‘‘polit12 ical appointee’’ means an individual who is— 

13 (A) employed in a position described under 

14 sections 5312 through 5316 of title 5, United 

15 States Code (relating to the Executive Sched16 ule); 

17 (B) a limited term appointee, limited emer18 gency appointee, or noncareer appointee in the 

19 Senior Executive Service, as defined under 

20 paragraphs (5), (6), and (7), respectively, of 

21 section 3132(a) of title 5, United States Code; 

22 or 

23 (C) employed in a position of a confidential 

24 or policy-determining character under schedule 


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1 C of subpart C of part 213 of title 5, Code of 

2 Federal Regulations, or successor regulation. 

3 (9) SECRETARY.—The term ‘‘Secretary’’ means 

4 the Secretary of Labor. 

5 (10) SENIOR EXECUTIVE POSITION.—The term 

6 ‘‘senior executive position’’ means— 

7 (A) with respect to a career appointee (as 

8 that term is defined in section 3132(a) of title 

9 5, United States Code), a Senior Executive 

10 Service position (as such term is defined in 

11 such section); and 

12 (B) with respect to a covered employee or 

13 covered individual, has the meaning given such 

14 term in section 3132(a) of title 5, United States 

15 Code. 

16 (11) SUPERVISOR.—The term ‘‘supervisor’’ has 

17 the meaning given such term in section 7103(a) of 

18 title 5, United States Code. 

19 (12) SERVICE.—The term ‘‘service’’ has the 

20 meaning given such term in section 8331(12) or sec21 tion 8401(26) of title 5, United States Code, as the 

22 case may be. 

23 (13) SUSPEND.—The term ‘‘suspend’’ means 

24 the placing of an employee, for disciplinary reasons, 


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1 in a temporary status without duties and pay for a 

2 period in excess of 14 days. 

3 (14) WHISTLEBLOWER.—The term ‘‘whistle4 blower’’ means one who makes a whistleblower dis5 closure. 

6 (15) WHISTLEBLOWER DISCLOSURE.—The 

7 term ‘‘whistleblower disclosure’’ means any disclo8 sure of information by an employee of the Depart9 ment or individual applying to become an employee 

10 of the Department which the employee or individual 

11 reasonably believes evidences— 

12 (A) a violation of a law, rule, or regulation; 

13 or 

14 (B) gross mismanagement, a gross waste 

15 of funds, an abuse of authority, or a substantial 

16 and specific danger to public health or safety. 

Æ 


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