I 
110TH CONGRESS 
2D SESSION 
H. R. 5873 
To provide for a paid family and medical leave insurance program, and 
for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 22, 2008 
Mr. STARK (for himself, Mr. GEORGE MILLER of California, Ms. WOOLSEY, 
and Mrs. MALONEY of New York) 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 jurisdic-
tion 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 Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Family Leave Insur-
ance Act of 2008’’. 
SEC. 2. CONGRESSIONAL FINDINGS. 
Congress finds the following: 
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(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 bal-
ancing the demands of their jobs with their family 
responsibilities. However, many eligible employees 
are not able to utilize the benefits of the FMLA be-
cause 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 vaca-
tion time); and 
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(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 em-
ployees do not have access to paid sick leave, as re-
ported in the Bureau of Labor Statistics National 
Compensation Survey in March 2006. Of those em-
ployees 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 strength-
en and support the business sector through health 
care savings and increased employee retention and 
productivity. 
(6) Demographic changes over the past few dec-
ades have altered the face and needs of the work-
force. 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 par-
ents. 
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(7) 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 chil-
dren under age 18 are in the labor force. 
(8) 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 sec-
tion 101 of the Family and Medical Leave Act of 1993 
(29 U.S.C. 2611), other than the definitions of the terms 
‘‘eligible employee’’ and ‘‘employer’’, shall apply for pur-
poses of this Act. 
(b) ADDITIONAL DEFINITIONS.—In this Act, the fol-
lowing additional definitions shall apply: 
(1) BOARD OF TRUSTEES.—The term ‘‘Board 
of Trustees’’ means the Board of Trustees of the In-
surance 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 sec-
tion 102(b), or the Commissioner of the Social Secu-
rity Administration if the Commissioner is carrying 
out the State Family and Medical Insurance Pro-
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gram in the State under paragraph (2) of such sec-
tion. 
(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 em-
ployee resides; or 
(B) a same-sex spouse as determined 
under the applicable law of the State or polit-
ical 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 em-
ployee, 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. 
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(4) INSURANCE FUND.—The term ‘‘Insurance 
Fund’’ means the Family and Medical Leave Insur-
ance Fund established under section 301. 
(5) MANAGING
TRUSTEE.—The term ‘‘Man-
aging Trustee’’ means the Managing Trustee of the 
Board of Trustees of the Insurance Fund. 
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 em-
ployer for a minimum of 6 months prior to 
filing an application for leave benefits 
under this title; and 
(ii) has been employed by the em-
ployer 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 elect-
ed to participate in the Program under 
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this title in accordance with such regula-
tions 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 Pro-
gram under this title in accordance with 
such regulations as the Secretary shall pre-
scribe; 
(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 
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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 em-
ployer. 
(B) EMPLOYER.—The term ‘‘employer’’ 
shall have the meaning given that term in sec-
tion 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 dur-
ing 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 com-
merce or in any industry or activity affect-
ing 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 pre-
ceding calendar year; and 
(ii) includes— 
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(I) any person who acts, directly 
or indirectly, in the interest of an em-
ployer 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 de-
fined 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 em-
ployer 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) PROGRAM.—The term ‘‘Program’’ means 
the Family and Medical Leave Insurance Program 
established under section 102. 
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(5) 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 in-
volved. 
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, the Secretary may— 
(1) enter into a contract with a State under 
which— 
(A) the State agrees to establish, and pro-
vide the benefits described under this title in 
that State through a Family and Medical Insur-
ance Program, including expansion of a pre-ex-
isting State program; and 
(B) the Secretary agrees to instruct the 
Managing Trustee of the Family and Medical 
Leave Insurance Fund, established under sec-
tion 301, to provide funds for such benefits 
from the Fund; or 
(2) at the request of the Governor of a State, 
enter into an interagency agreement with the Com-
missioner of the Social Security Administration to 
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establish, and provide the benefits described under 
this title, through a State Family and Medical In-
surance Program directly in a State from funds pro-
vided to the Commissioner by the managing trustee 
of the 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 man-
ner, and containing such information as the Secretary may 
require. At a minimum, the application shall include infor-
mation identifying the State agency to carry out the State 
Family and Medical Insurance Program. 
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. 
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(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 condi-
tion. 
(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 pe-
riod 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 
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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 sub-
section (a) shall be calculated as— 
(A) in the case of an employee with an an-
nual 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 an-
nual 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 an-
nual income of more than $30,000 and not 
more than $60,000, an amount equal to the 
greater of— 
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(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 an-
nual 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 an-
nual 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
CAT-
EGORIES.— 
(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 
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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 subpara-
graph (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 ap-
plication to the covered agency for the State at such 
time, in such manner, and containing the informa-
tion specified in paragraph (3) and such additional 
information as the agency may require. 
(2) IRREVOCABILITY FOR SELF-EMPLOYED IN-
DIVIDUALS.—An election by a self-employed indi-
vidual to participate in the Program shall be irrev-
ocable. 
(3) CERTIFICATION REQUIREMENTS.—The cov-
ered 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 
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the eligible employee or of the child, spouse, 
parent, domestic partner, grandchild, grand-
parent or sibling of the employee, as appro-
priate, 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 agen-
cy has reason to doubt the validity of the cer-
tification provided under subparagraph (A), the 
Secretary may require, at the expense of the 
covered agency, that the eligible employee ob-
tain the opinion of a second health care pro-
vider designated or approved by the agency con-
cerning any information certified under sub-
paragraph (A). 
(C) In any case in which the second opin-
ion 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 con-
cerning the information certified under sub-
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paragraph (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.—Pay-
ments 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 pur-
suant 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 pay-
ment to the person. 
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(3) REVIEW.—Any eligible employee dissatisfied 
with any initial determination under this section 
shall be entitled to reconsideration of the determina-
tion, and a hearing on the determination, by the 
Secretary to the same extent as is provided in sec-
tion 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 deci-
sion is or may be sought under paragraph (3), the 
covered agency may withhold certification of pay-
ment pending such review. 
(5) OTHER
COMPENSATION.—Except as pro-
vided 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 unem-
ployment 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. 
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(f) REGULATIONS.—The Secretary shall issue regula-
tions to carry out this subsection, including the determina-
tion of benefits for leave taken intermittently or on a re-
duced 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 ap-
plication 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 rath-
er than participating in the Program. 
(b) APPROVAL.—The Secretary shall approve the vol-
untary plan of the applicant if the Secretary finds each 
of the following with respect to the applicant: 
(1) The rights afforded to the employees cov-
ered 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. 
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(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 es-
tablishment 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 re-
quired, if any, and transmit the proceeds to the dis-
ability 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 de-
scribed in subparagraph (B), and that the fee de-
scribed in subparagraph (C) has been paid. 
(B) The notice shall be filed in writing with the 
Secretary and shall be effective— 
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(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 Sec-
retary 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 vol-
untary plan to the employees under the plan, the Secretary 
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may order the employer to make the payments. If the Sec-
retary finds that a voluntary plan employer is not com-
plying 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 Pro-
gram. 
SEC. 105. ADDITIONAL BENEFITS. 
(a) ADDITIONAL EMPLOYER BENEFITS.— 
(1) COVERED
EMPLOYERS.—Nothing in this 
title shall be construed to discourage a covered em-
ployer from providing an additional benefit in con-
junction 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 ben-
efit that an eligible employee receives under this 
title. 
(2) VOLUNTARY
PLAN
EMPLOYERS.—Nothing 
in this title shall be construed to discourage a vol-
untary 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 addi-
tional employer benefit shall not reduce the amount 
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of the voluntary paid benefit that an employee re-
ceives 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 com-
ply 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 es-
tablished 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 un-
lawful 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 dis-
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criminate against any individual for opposing any practice 
made unlawful by this title. 
(c) INTERFERENCE WITH PROCEEDINGS OR INQUIR-
IES.—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 re-
lated to this title; 
(2) has given, or is about to give, any informa-
tion in connection with any inquiry or proceeding re-
lating 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 vio-
lates section 106 shall be liable to any eligible em-
ployee affected— 
(A) for damages equal to— 
(i) the amount of— 
(I) any wages, salary, employ-
ment benefits, or other compensation 
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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 mone-
tary 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 sal-
ary for the employee; 
(ii) the interest on the amount de-
scribed in clause (i) calculated at the pre-
vailing rate; and 
(iii) an additional amount as liq-
uidated damages equal to the sum of the 
amount described in clause (i) and the in-
terest described in clause (ii), except that 
if a covered employer who has violated sec-
tion 106 proves to the satisfaction of the 
court that the act or omission which vio-
lated 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 
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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 ap-
propriate, 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 para-
graph (1) may be maintained against any cov-
ered employer (including a public agency) in 
any Federal or State court of competent juris-
diction by any 1 or more employees for and on 
behalf of— 
(i) the employees; or 
(ii) the employees and other employ-
ees 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 
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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 em-
ployee by an employer liable under para-
graph (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 rea-
sonable 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 
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attempts to resolve complaints of violations of sec-
tions 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 recov-
ered by the Secretary pursuant to this para-
graph shall be held in a special deposit account 
and shall be paid, on order of the Secretary, di-
rectly 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 depos-
ited into the Treasury of the United States as 
miscellaneous receipts. 
(3) ACTION
FOR
INJUNCTION
BY
THE
SEC-
RETARY.—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, 
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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, re-
instatement, 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 ac-
tion 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 ac-
tion 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 viola-
tion for which such action is brought. 
(3) COMMENCEMENT.—In determining when an 
action is commenced by the Secretary for the pur-
poses of this subsection, it shall be considered to be 
commenced on the date when the complaint is filed. 
(d) INVESTIGATIVE AUTHORITY.— 
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(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, sub-
ject 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 LIM-
ITED 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 inves-
tigating a charge pursuant to subsection (b). 
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(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 CERTIFI-
CATIONS.—If the Secretary finds that any individual sub-
mits 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 per-
cent of the benefits paid as a result of the false certifi-
cation. Penalties collected under this subsection shall be 
deposited in the Insurance Fund, notwithstanding the pro-
visions of title 31, United States Code and used to reim-
burse 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 state-
ment in support of an application for leave benefits 
under this title; 
(2) knowingly presents or causes to be pre-
sented any false written or oral material statement 
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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 consider-
ation, 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 con-
spires 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 em-
ployees of the rights and leave benefits available under this 
title. The notice shall be given by every covered employer 
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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, 2009, and 
shall apply to periods of leave that commence on or after 
January 1, 2010. 
TITLE II—CIVIL SERVICE FAM-
ILY AND MEDICAL LEAVE IN-
SURANCE 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 ap-
plication for leave benefits under this title. 
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SEC. 202. ESTABLISHMENT OF PROGRAM. 
(a) IN GENERAL.—The Director of the Office of Per-
sonnel Management shall establish a Civil Service Family 
and Medical Leave Insurance Program, and shall issue 
regulations providing for the implementation of the pro-
gram. 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 de-
scribed in section 103 to agency employees. The regula-
tions 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 regula-
tions shall provide for appropriate remedies and proce-
dures 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. 
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TITLE 
III—FAMILY 
AND 
MED-
ICAL 
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 Fam-
ily 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 sec-
tion. 
(b) APPROPRIATIONS TO INSURANCE FUND.— 
(1) AMOUNTS APPROPRIATED.—There is appro-
priated to the Insurance Fund for fiscal year 2009 
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, 2008, as determined 
by the Secretary of the Treasury by applying 
the applicable rates of premium payment under 
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such sections to such wages, which wages shall 
be certified by the Commissioner of Social Se-
curity on the basis of the records of wages es-
tablished and maintained by the Commissioner 
of Social Security in accordance with such re-
ports; and 
(B) 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, 2008, 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 
on the basis of the records of self-employment 
income established and maintained by the Com-
missioner of Social Security in accordance with 
such returns. 
(2) TRANSFERS.—Such appropriated amounts 
shall be transferred from time to time from the gen-
eral fund of the Treasury to the Insurance Fund. 
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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 de-
posited 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 in-
vested by the Managing Trustee referred to in sec-
tion 302(c) in the same manner and to the same ex-
tent as the other assets of the Insurance Fund. 
SEC. 302. BOARD OF TRUSTEES. 
(a) ESTABLISHMENT AND MEMBERSHIP.—With re-
spect 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 
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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 re-
mainder of such term. An individual nominated and con-
firmed as a member of the public may serve in such posi-
tion 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 In-
surance Fund during the fiscal year preceding 
the fiscal year in which the report is made; and 
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(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 man-
aging 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 RE-
PORT.—The report provided for in subsection (d)(2) shall 
include a statement of the assets of, and the disburse-
ments 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 De-
partment of Labor certifying that the techniques and 
methodologies used for the report are generally accepted 
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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 Man-
aging 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 
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Fund. Such obligations issued for purchase by the Insur-
ance Fund shall have dates of maturity fixed with due re-
gard for the needs of the Insurance Fund. Such obliga-
tions shall bear interest at a rate equal to— 
(1) except as provided in paragraph (2), the av-
erage 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 obliga-
tions 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 obliga-
tions 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 pur-
chase of obligations described in this paragraph is in the 
public interest. 
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(e) DISPOSITION
AND REDEMPTION
OF OBLIGA-
TIONS.—Any obligations acquired by the Insurance Fund 
(except public debt obligations issued exclusively to the In-
surance 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 pro-
vided 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 Inter-
nal Revenue Code of 1986 in the same manner and extent 
as funds are made available from the trust funds referred 
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to in section 201(g) of the Social Security Act (42 U.S.C. 
401(g)) in connection with the administration of the rel-
evant 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 Sec-
retary 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 fi-
nanced 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 re-
spect 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.). 
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SEC. 306. AMENDMENTS TO THE INTERNAL REVENUE CODE 
OF 1986. 
(a) EMPLOYEE PREMIUMS.—Section 3101 of the In-
ternal Revenue Code of 1986 (relating to tax on employ-
ees) is amended— 
(1) by redesignating subsection (c) as sub-
section (d); and 
(2) by inserting after subsection (c) the fol-
lowing new subsection: 
‘‘(c) FAMILY AND MEDICAL LEAVE PREMIUMS.— 
‘‘(1) IN GENERAL.—In addition to the taxes im-
posed by subsections (a) and (b), there is imposed 
on the income of every individual a family and med-
ical leave premium equal to the applicable percent-
age of the wages (as defined in section 3121(a)) re-
ceived 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 2008) electing to participate in the Family 
and Medical Leave Insurance Program (estab-
lished under section 102 of such Act); and 
VerDate Aug 31 2005 
22:06 Apr 24, 2008
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