I

103D CONGRESS

1ST SESSION H. R. 2729

To provide for the application of certain employment protection laws to

the Congress, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 23, 1993

Mr. SHAYS (for himself, Mr. SWETT, Mr. DICKEY, Mr. MANN, Mr. BARTLETT

of Maryland, and Mr. MCHALE) introduced the following bill; which was

referred jointly to the Committees on House Administration and Rules

A BILL

To provide for the application of certain employment

protection laws to the Congress, and for other purposes.

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 This Act may be cited as the ‘‘Congressional Ac5 countability Act’’.

6 SEC. 2. APPLICATION OF FEDERAL LAWS.

7 Any provision of Federal law shall, to the extent that

8 it relates to—

9 (1) the terms and conditions of employment (in10 cluding hiring, promotion or demotion, salary and
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1 wages, overtime compensation, benefits, work assign2 ments or reassignments, termination, and family and

3 medical leave) of employees,

4 (2) protection from discrimination in personnel

5 actions, including discrimination based on—

6 (A) race, color, religion, sex (including

7 marital and parental status), or national origin

8 within the meaning of section 717 of the Civil

9 Rights Act of 1964 (42 U.S.C. 20003–16),

10 (B) age within the meaning of section 13

11 of the Age Discrimination in Employment Act

12 of 1967 (29 U.S.C. 633a), or

13 (C) handicap or disability within the mean14 ing of section 501 of the Rehabilitation Act of

15 1973 (29 U.S.C. 791) and sections 102 through

16 104 of the Americans with Disabilities Act of

17 1990 (42 U.S.C. 12112–14),

18 (3) the health and safety of employees, or

19 (4) the availability of information to the public,

20 apply to the House of Representatives and the Sen21 ate (hereinafter in this Act referred to jointly as the

22 ‘‘Congress’’) in accordance with section 4.
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1 SEC. 3. OFFICE OF COMPLIANCE.

2 (a) ESTABLISHMENT.—There is established in the

3 legislative branch for the Congress an Office of Compli4 ance (hereinafter in this Act referred to as the ‘‘Office’’).

5 (b) COMPOSITION.—

6 (1) IN GENERAL.—The Office shall be com7 posed of a Board of Directors and staff. The Board

8 of Directors shall consist of 13 individuals appointed

9 jointly by the Speaker of the House of Representa10 tives, the majority leader of the Senate, and the mi11 nority leaders of the House of Representatives and

12 the Senate. Appointments to the Board of Directors

13 shall be completed not later than 120 days after the

14 date of the enactment of this Act.

15 (2) QUALIFICATIONS.—

16 (A) IN GENERAL.—The members of the

17 Board of Directors who shall have the general

18 authority described in subsection (c)(1) shall

19 be—

20 (i) 7 individuals with training or ex21 pertise in—

22 (I) the application of the laws re23 ferred to in section 2 to employment,

24 and

25 (II) employment in the Congress,

26 and
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1 (ii) 2 Members of the House of Rep2 resentatives, 2 Senators, one employee of

3 the House of Representatives, and one em4 ployee of the Senate.

5 (B) SPECIFIC QUALIFICATIONS.—

6 (i) LOBBYING.—No individual who en7 gages in, or is otherwise employed in, lob8 bying of the Congress shall be considered

9 eligible for appointment to, or service on,

10 the Board of Directors.

11 (ii) OFFICE.—No member appointed

12 under subparagraph (A)(i) may hold the

13 position of Member of the House of Rep14 resentatives, Senator, or employee of the

15 House of Representatives or the Senate

16 (3) POLITICAL AFFILIATION.—Not more than

17 one Member of the House of Representatives who is

18 a member of the Board of Directors and not more

19 than one Senator who is a member of the Board of

20 Directors may be of the same political party.

21 (4) HOLDING OFFICE.—If during a term of of22 fice a member of the Board of Directors no longer

23 holds the position qualifying such member or en24 gages in an activity described in paragraph

25 (2)(B)(i), such position shall be declared vacant and
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1 a successor shall be selected in accordance with

2 paragraph (2).

3 (5) VACANCIES.—A vacancy in the Board of

4 Directors shall be filled in the manner in which the

5 original appointment was made.

6 (c) AUTHORITY.—

7 (1) IN GENERAL.—The 13 members of the

8 Board of Directors appointed under subsection

9 (b)(1) shall have the authority to carry out the func10 tions described in subsections (a), (b), (d), and (e)

11 of section 4.

12 (2) LIMITED AUTHORITY.—The 7 members of

13 the Board of Directors appointed under subsection

14 (b)(2)(A)(i) shall have the additional authority to

15 carry out the functions of the Office under sections

16 5 through 12.

17 (d) TERM OF OFFICE.—

18 (1) IN GENERAL.—Except as provided in para19 graph (2), membership on the Board of Directors

20 shall be for 5 years.

21 (2) FIRST APPOINTMENTS.—Of the members

22 first appointed to the Board of Directors—

23 (A) 3 shall have a term of office of one

24 year,
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1 (B) 3 shall have a term of office of 2

2 years,

3 (C) 3 shall have a term of office of 3

4 years,

5 (D) 3 shall have a term of office of 4

6 years, and

7 (E) 3 shall have a term of office of 5

8 years,

9 as designated at the time of appointment by the per10 sons specified in subsection (b)(1).

11 (e) CHAIRMAN.—The Chairman of the Board of Di12 rectors shall be appointed from the members of the Board

13 of Directors by the members of the Board.

14 (f) BASIC PAY.—Members of the Board of Directors

15 shall serve without pay.

16 (g) STAFF.—The Board of Directors may appoint

17 and fix the compensation of such staff, including hearing

18 officers, as are necessary to carry out the Board of Direc19 tor’s functions.

20 (h) DETAILEES.—The Board of Directors may, with

21 the prior consent of the Government department or agency

22 concerned, use on a reimbursable or nonreimbursable

23 basis the services of any such department or agency, in24 cluding the services of members or personnel of the Gen25 eral Accounting Office Personnel Appeals Board.
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1 (i) CONSULTANTS.—In carrying out the functions of

2 the Office, the Board of Directors may procure the tem3 porary (not to exceed 1 year) or intermittent services of

4 individual consultants, or organizations thereof.

5 SEC. 4. BOARD FUNCTIONS.

6 (a) INITIAL ACTION.—

7 (1) STUDY.—The Board of Directors shall con8 duct a study of the application to Congress of the

9 laws referred to in section 2. The Board of Directors

10 shall complete such study and report the results to

11 Congress not later than 180 days after the date of

12 the enactment of this Act.

13 (2) REGULATIONS.—Not later than 180 days

14 after the date of the completion of the study under

15 subsection (a), the Board of Directors shall, in ac16 cordance with section 553 of title 5, United States

17 Code, issue regulations which specify which of such

18 laws shall apply to Congress. Such regulations—

19 (A) shall take into account the costs asso20 ciated with the application of such laws to the

21 Congress,

22 (B) shall be consistent with the provision

23 of law made applicable to Congress, including

24 remedies, except as otherwise specifically pro25 vided, and
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1 (C) may specify specific dates for the ap2 plication of specific laws and may specify spe3 cific means for the application of such laws.

4 (b) CONTINUING ACTION.—On an ongoing basis the

5 Board of Directors shall study the application to the Con6 gress of laws referred to in section 2 which are enacted

7 after the date of the enactment of this Act and may issue

8 regulations with respect to such laws in accordance with

9 subsection (a)(2).

10 (c) CONGRESSIONAL APPROVAL.—

11 (1) IN GENERAL.—Regulations of the Office

12 shall not go in effect unless approved by the Con13 gress under this subsection.

14 (2) RULEMAKING.—The provisions of this sub15 section are enacted by the Congress—

16 (A) as an exercise of the rulemaking power

17 of the House of Representatives, and as such

18 they are deemed a part of the rules of the

19 House, but applicable only with respect to the

20 procedure to be followed in the House in the

21 case of concurrent resolutions of regulation ap22 proval, and such provisions supersede other

23 rules of the House only to the extent that they

24 are inconsistent with such other rules; and
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1 (B) with full recognition of the constitu2 tional right of the House to change the rules

3 (so far as relating to the procedure of the

4 House) at any time, in the same manner and

5 to the same extent as in the case of any other

6 rule of the House.

7 (3) REFERRAL.—Concurrent resolutions of reg8 ulation approval shall, upon introduction, be imme9 diately referred by the Speaker of the House to the

10 appropriate committee or committees of the House.

11 Any such concurrent resolution received from the

12 Senate shall be held at the Speaker’s table.

13 (4) COMMITTEE CONSIDERATION.—Upon the

14 expiration of 6 days of continuous session after the

15 introduction of the first concurrent resolution of reg16 ulation approval with respect to any regulation, each

17 committee to which such concurrent resolution was

18 referred shall be discharged from further consider19 ation of such concurrent resolution, and such con20 current resolution shall be referred to the appro21 priate calendar, unless such concurrent resolution or

22 an identical resolution was previously reported by

23 each committee to which it was referred.

24 (5) HOUSE CONSIDERATION.—It shall be in

25 order for the Speaker to recognize a Member favor-
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1 ing a concurrent resolution to call up a concurrent

2 resolution of regulation approval after it has been on

3 the appropriate calendar for 5 legislative days. When

4 any such concurrent resolution is called up, the

5 House shall proceed to its immediate consideration

6 and the Speaker shall recognize the Member calling

7 up such concurrent resolution and a Member op8 posed to such concurrent resolution for 1 hour of de9 bate in the House, to be equally divided and con10 trolled by such Members. When such time has ex11 pired, the previous question shall be considered as

12 ordered on the concurrent resolution to adoption

13 without intervening motion. No amendment to any

14 such concurrent resolution shall be in order, nor

15 shall it be in order to move to reconsider the vote

16 by which such resolution is agreed to or disagreed

17 to.

18 (6) SENATE CONCURRENT RESOLUTION.—If the

19 House receives from the Senate a concurrent resolu20 tion of regulation approval with respect to any regu21 lation approval, then the following procedures shall

22 apply:

23 (A) The concurrent resolution of the Sen24 ate with respect to such regulation approval

25 shall not be referred to a committee.
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1 (B) With respect to the concurrent resolu2 tion of the House with respect to such regula3 tion the procedure with respect to that or other

4 concurrent resolutions of the House with re5 spect to such regulation approval shall be the

6 same as if no resolution from the Senate with

7 respect to such regulation had been received.

8 On any vote on final passage a concurrent reso9 lution of the House with respect to such regula10 tion, a resolution from the Senate with respect

11 to such regulation where the text is identical

12 shall be automatically substituted for the reso13 lution of the House.

14 (7) COMPUTATION OF DAYS.—For purposes of

15 this section—

16 (A) continuity of session of Congress is

17 broken only by an adjournment sine die; and

18 (B) the days on which either House is not

19 in session because of an adjournment of more

20 than 3 days to a day certain are excluded in the

21 computation of the 60-day period referred to in

22 paragraph (4).

23 (d) RULES OF THE OFFICE.—The Board of Directors

24 shall adopt rules governing the procedures of the Office,

25 including the procedures of hearing boards, which shall be
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1 submitted for publication in the Congressional Record.

2 The rules may be amended in the same manner. The

3 Board of Directors may consult with the Chairman of the

4 Administrative Conference of the United States on the

5 adoption of rules.

6 (e) INFORMATION PROGRAM.—The Board of Direc7 tors shall carry out such information program as may be

8 appropriate to acquaint Members of the House of Rep9 resentatives, Senators, and congressional employees as to

10 the provisions, including remedies, of the laws made appli11 cable to the Congress under subsection (a) or (b).

12 SEC. 5. PROCEDURE FOR CONSIDERATION OF ALLEGED

13 VIOLATIONS.

14 The procedure for consideration of alleged violations

15 of laws made applicable to Congress under the regulation

16 promulgated under section 4(a) consists of 4 steps as

17 follows:

18 (1) Step I, counseling, as set forth in section 6.

19 (2) Step II, mediation, as set forth in section

20 7.

21 (3) Step III, formal complaint and hearing by

22 a hearing board, as set forth in section 8.

23 (4) Step IV, judicial review of a hearing board

24 decision, as set forth in section 9.
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1 SEC. 6. STEP I: COUNSELING.

2 (a) IN GENERAL.—A congressional employee alleging

3 a violation of a law made applicable to Congress under

4 section 4 may request counseling by the Office. The Office

5 shall provide the employee with all relevant information

6 with respect to the rights of the employee. A request for

7 counseling shall be made not later than 180 days after

8 the alleged violation forming the basis of the request for

9 counseling occurred.

10 (b) PERIOD OF COUNSELING.—The period for coun11 seling shall be 30 days unless the employee and the Office

12 agree to reduce the period. The period shall begin on the

13 date the request for counseling is received.

14 (c) EMPLOYEES OF THE ARCHITECT OF THE CAP15 ITOL AND CAPITOL POLICE.—In the case of an employee

16 of the Architect of the Capitol or an employee who is a

17 member of the Capitol Police, the Director may refer the

18 employee to the Architect of the Capitol or the Capitol

19 Police Board for resolution of the employee’s complaint

20 through the internal grievance procedures of the Architect

21 of the Capitol or the Capitol Police Board for a specific

22 period of time, which shall not count against the time

23 available for counseling or mediation under this Act.

24 SEC. 7. STEP II: MEDIATION.

25 (a) IN GENERAL.—Not later than 15 days after the

26 end of the counseling period under section 6, the employee
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1 who alleged a violation of a law made applicable to Con2 gress under section 4 may file a request for mediation with

3 the Office. Mediation—

4 (1) may include the Office, the employee, the

5 employing office, and individuals who are rec6 ommended to the Director by the Federal Mediation

7 and Conciliation Service, and

8 (2) shall be a process involving meetings with

9 the parties separately or jointly for the purpose of

10 resolving the dispute between the employee and the

11 employing office.

12 (b) MEDIATION PERIOD.—The mediation period shall

13 be 30 days beginning on the date the request for mediation

14 is received and may be extended for an additional 30 days

15 at the discretion of the Office. The Office shall notify the

16 employee and the head of the employing office when the

17 mediation period has ended. For purposes of this section,

18 the term ‘‘head of employing office’’ means the individual

19 who has final authority to appoint, hire, discharge, and

20 set the terms, conditions or privileges of the congressional

21 employment of an employee.

22 SEC. 8. STEP III: FORMAL COMPLAINT AND HEARING.

23 (a) FORMAL COMPLAINT AND REQUEST FOR HEAR24 ING.—Not later than 30 days after receipt by the congres25 sional employee of notice from the Office of the end of
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1 the mediation period under section 7, the congressional

2 employee may file a formal complaint with the Office. No

3 complaint may be filed unless the employee has made a

4 timely request for counseling and has completed the proce5 dures set forth in sections 6 and 7.

6 (b) HEARING BOARD.—A board of 3 independent

7 hearing officers (hereinafter in this Act referred to as a

8 ‘‘hearing board’’), who are not Members of the House of

9 Representatives, Senators, or officers or employees of the

10 House of Representatives or Senate, chosen by the Board

11 of Directors (one of whom shall be designated by the

12 Board of Directors as the presiding hearing officer) shall

13 be assigned to consider each complaint filed under sub14 section (a). The Board of Directors shall appoint hearing

15 officers after considering any candidates who are rec16 ommended to the Director by the Federal Mediation and

17 Conciliation Service, the Administrative Conference of the

18 United States, or organizations composed primarily of in19 dividuals experienced in adjudicating or arbitrating per20 sonnel matters. A hearing board shall act by majority vote.

21 (c) DISMISSAL OF FRIVOLOUS CLAIMS.—Prior to a

22 hearing under subsection (d), a hearing board may dismiss

23 any claim that it finds to be frivolous.

24 (d) HEARING.—A hearing shall be conducted—
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1 (1) in closed session on the record by a hearing

2 board,

3 (2) no later than 30 days after filing of the

4 complaint under subsection (a), except that the Of5 fice may, for good cause, extend up to an additional

6 60 days the time for conducting a hearing, and

7 (3) except as specifically provided in this Act

8 and to the greatest extent practicable, in accordance

9 with the principles and procedures set forth in sec10 tions 554 through 557 of title 5, United States

11 Code.

12 (e) DISCOVERY.—Reasonable prehearing discovery

13 may be permitted at the discretion of the hearing board.

14 (f) SUBPOENA POWER.—

15 (1) IN GENERAL.—A hearing board may au16 thorize subpoenas, which shall be issued by the pre17 siding hearing officer on behalf of the hearing board,

18 for the attendance of witnesses at proceedings of the

19 hearing board and for the production of correspond20 ence, books, papers, documents, and other records.

21 The attendance of witnesses and the production of

22 evidence may be required from any place within the

23 United States.

24 (2) FAILURE TO OBEY A SUBPOENA.—If a per25 son refuses to obey a subpoena issued under para-
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1 graph (1), the hearing board may apply to a United

2 States district court for an order requiring that per3 son to appear before the hearing board to give testi4 mony, produce evidence, or both, relating to the

5 matter under investigation. The application may be

6 made within the judicial district where the hearing

7 is conducted or where that person is found, resides,

8 or transacts business. Any failure to obey the order

9 of the court may be punished by the court as civil

10 contempt.

11 (3) SERVICE OF SUBPOENAS.—The subpoenas

12 of the hearing board shall be served in the manner

13 provided for subpoenas issued by a United States

14 district court under the Federal Rules of Civil Pro15 cedure for the United States district courts.

16 (4) SERVICE OF PROCESS.—All process of any

17 court to which application is made under paragraph

18 (2) may be served in the judicial district in which

19 the person required to be served resides or may be

20 found.

21 (5) IMMUNITY.—The hearing board is an agen22 cy of the United States for the purpose of part V

23 of title 18, United States Code (relating to immunity

24 of witnesses).
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1 (g) DECISION.—As expeditiously as possible, but in

2 no case more than 45 days after the conclusion of the

3 hearing, the hearing board shall make a recommendation

4 to the Board of Directors for a decision in the matter for

5 which the hearing was held. The decision of the Board

6 of Directors shall be transmitted by the Office to the em7 ployee and the employing office. The decision shall state

8 the issues raised by the complaint, describe the evidence

9 in the record, and contain a determination as to whether

10 a violation of a law made applicable to Congress under

11 section 4 has occurred. Any decision of the Board of Di12 rectors shall contain a written statement of the reasons

13 for the Board’s decision.

14 (h) REMEDY ORDER.—If the Board of Directors de15 termines that a violation of a law made applicable to Con16 gress under section 4 has occurred, it shall order such

17 remedies as are authorized under the regulations promul18 gated under section 4. The Board of Directors shall have

19 no authority to award punitive damages. The entry of an

20 order under this subsection shall constitute a final decision

21 for purposes of judicial review under section 9.

22 SEC. 9. JUDICIAL REVIEW.

23 (a) IN GENERAL.—Any congressional employee ag24 grieved by a dismissal under section 8(c), a final decision

25 under section 8(g), or an order under section 8(h), or any
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1 Member of the House of Representatives or Senate ag2 grieved by a final decision under section 8(g) or who would

3 be subject to an order issued under section 8(h), may peti4 tion for review by the United States Court of Appeals for

5 the Federal Circuit.

6 (b) LAW APPLICABLE.—Chapter 158 of title 28,

7 United States Code, shall apply to a review under sub8 section (a) except that—

9 (1) with respect to section 2344 of title 28,

10 United States Code, service of the petition shall be

11 on the House or Senate Legal Counsel, as the case

12 may be, rather than on the Attorney General,

13 (2) the provisions of section 2348 of title 28,

14 United States Code, on the authority of the Attorney

15 General, shall not apply,

16 (3) the petition for review shall be filed not

17 later than 90 days after the entry in the Office of

18 a final decision under section 8(g) or order under

19 section 8(h),

20 (4) the Office shall be an ‘‘agency’’ as that

21 term is used in chapter 158 of title 28, United

22 States Code, and

23 (5) the Office shall be the respondent in any

24 proceeding under subsection (a).
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1 (c) STANDARD OF REVIEW.—To the extent necessary

2 to decision and when presented, the court shall decide all

3 relevant questions of law and interpret constitutional and

4 statutory provisions. The court shall set aside a final deci5 sion under section 8(h) or order under section 8(g) if it

6 is determined that the decision or order was—

7 (1) arbitrary, capricious, an abuse of discretion,

8 or otherwise not consistent with law;

9 (2) not made consistent with required proce10 dures; or

11 (3) unsupported by substantial evidence.

12 In making the foregoing determinations, the court shall

13 review the whole record, or those parts of it cited by a

14 party, and due account shall be taken of the rule of preju15 dicial error. The record on review shall include the record

16 before the hearing board, the decision of the hearing

17 board, and the order of the hearing board.

18 (d) ATTORNEY’S FEES.—If an employee is the pre19 vailing party in a proceeding under this section, attorney’s

20 fees may be allowed by the court in accordance with the

21 standards prescribed under section 706(k) of the Civil

22 Rights Act of 1964 (42 U.S.C. 2000e–5(k)).

23 SEC. 10. RESOLUTION OF COMPLAINT.

24 If, after a formal complaint is filed under section 8,

25 the employee and the head of the employing office resolve
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1 the issues involved, the employee may withdraw the com2 plaint or the parties may enter into a written agreement,

3 subject to the approval of the Director.

4 SEC. 11. PROHIBITION OF INTIMIDATION.

5 Any intimidation of, or reprisal against, any employee

6 by any Member, officer, or employee of the Senate, or by

7 the Architect of the Capitol, or anyone employed by the

8 Architect of the Capitol, as the case may be, because of

9 the exercise of a right under this Act constitutes an unlaw10 ful employment practice, which may be remedied in the

11 same manner under this Act as is a violation of a law

12 made applicable to Congress under section 4.

13 SEC. 12. CONFIDENTIALITY.

14 (a) COUNSELING.—All counseling shall be strictly

15 confidential except that the Office and the employee may

16 agree to notify the head of the employing office of the alle17 gations.

18 (b) MEDIATION.—All mediation shall be strictly con19 fidential.

20 (c) HEARINGS.—Except as provided in subsection

21 (d), the hearings, deliberations, and decisions of the hear22 ing board shall be confidential.

23 (d) RELEASE OF RECORDS FOR JUDICIAL REVIEW.—

24 The records and decisions of hearing boards, and the deci25 sions of the Select Committee on Ethics, may be made
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1 public if required for the purpose of judicial review under

2 section 9.

3 SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS.

4 (a) CIVIL RIGHTS ACT OF 1991.—Section 117 and

5 title III of the Civil Rights Act of 1991 (2 U.S.C. 60l,

6 120l et seq.) are repealed.

7 (b) RULE OF THE HOUSE OF REPRESENTATIVES.—

8 Rule LI of the House of Representatives is repealed.

9 (c) FAIR LABOR STANDARDS AMENDMENTS OF

10 1989.—Section 8 of the Fair Labor Standards Amend11 ments of 1989 is repealed.

12 SEC. 14. POLITICAL AFFILIATION AND PLACE OF RESI13 DENCE.

14 (a) IN GENERAL.—It shall not be a violation of a law

15 made applicable to Congress under section 4 to consider

16 the—

17 (1) party affiliation;

18 (2) domicile, or

19 (3) political compatibility with the employing

20 office,

21 of an employee with respect to employment decisions.

22 (b) DEFINITION.—For purposes of subsection (a),

23 the term ‘‘employee’’ means—

24 (1) an employee on the staff of the House of

25 Representatives or Senate leadership;
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1 (2) an employee on the staff of a committee or

2 subcommittee;

3 (3) an employee on the staff of a Member of

4 the House of Representatives or Senate;

5 (4) an officer or employee of the House of Rep6 resentatives or Senate elected by the House of Rep7 resentatives or Senate or appointed by a Member

8 House of Representatives or Senate, other than

9 those described in paragraphs (1) through (3); or

10 (5) an applicant for a position that is to be oc11 cupied by an individual described in paragraphs (1)

12 through (4).

13 SEC. 15. OTHER REVIEW.

14 No congressional employee may commence a judicial

15 proceeding to redress practices prohibited under section

16 4, except as provided in this Act.

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