OFFICE
OF COMPLIANCE
2002 SECTION 102(b) REPORT
This is the fourth biennial report submitted
to Congress by the Board of Directors of the Office of Compliance
of the U.S. Congress pursuant to the requirements of section 102(b)
of the Congressional Accountability Act (2 U.S.C. 1302(b)). Section
102(b) of the Act states in relevant part:
Beginning on December
31, 1996, and every 2 years thereafter, the Board shall report
on (A) whether or to what degree [provisions of Federal law (including
regulations) relating to (A) the terms and conditions of employment
(including hiring, promotion, demotion, termination, salary, wages,
overtime compensation, benefits, work assignments or reassignments,
grievance and disciplinary procedures, protection from discrimination
in personnel actions, occupational health and safety, and family
and medical and other leave) of employees; and access to public
services and accommodations] ... are applicable or inapplicable
to the legislative branch, and (B) with respect to provisions
inapplicable to the legislative branch, whether such provisions
should be made applicable to the legislative branch. The presiding
officers of the House of Representatives and the Senate shall
cause each such report to be printed in the Congressional Record
and each such report shall be referred to the committees of the
House of Representatives and the Senate with jurisdiction.
*Bracketed portion from section 102(b)(1).
December 2002
December 2, 2002
Dear Member of Congress:
The years of the 107th Congress have been extraordinary
for our nation and the Capitol Hill community. Last September 11th,
Congressional employees in every occupation joined millions of other
Americans to watch in horror as first the World Trade Center and
then the Pentagon were ruthlessly attacked by terrorists. As workers
on the Hill stood transfixed by the events taking place live on
television, they themselves were soon caught in the drama and hastily
evacuated when it became clear the Capitol itself could be the next
target.
But before these horrific acts could be absorbed,
the safety and security of the Capitol Hill community were again
shaken, this time by a smaller but no less deadly attacker: anthrax.
Again, employees were forced from their offices, and the specter
of biological terrorism threatened to upend the business of Congress
for many weeks.
These unprecedented terrorist acts focused the
attention of American workers on their workplace safety and security
as never before. The 30,000 employees on Capitol Hill – in
the House of Representatives, the Senate, the Architect of the Capitol’s
office, the Capitol Police, and the Library of Congress –
have hardly been immune from sharing these concerns and fears.
With these unprecedented events as a backdrop,
the wisdom of Congress enacting the Congressional Accountability
Act (CAA) of 1995 has never seemed more clear. The application of
eleven worker protection, civil rights, and workplace safety laws
to Congress has ensured that there is a strong framework to build
upon in order to meet today’s new employment, security and
safety challenges.
As required by law, and no less by the recent
events, the Office of Compliance continues its mission to administer
and enforce the CAA for the benefit of all Congressional employees.
This report is an integral part of our mission. In accordance with
the mandates of Section 102 (b) of the CAA, we again offer recommendations
on how the CAA should be expanded in order to better ensure the
safety, protection, and working conditions of the many hard working
employees of Congress.
Compared to the magnitude of the safety threats
faced in the past year, some of the recommendations made in this
report may seem unimportant. Like links in a chain, however, issues
both large and small all hang together to achieve the common goal
of protecting Congressional employee rights, lives, and good health.
It is in the spirit of that goal that we submit these recommendations,
and we look forward to your review and comments.
Very Respectfully,
Susan Robfogel,
Chair
Congress
can make no law which will not have its full operation on
themselves and their friends, as well as the great mass of
society...If it be asked, what is to restrain Congress from
making legal discrimination in favor of themselves and a particular
class of society? I answer: the genius of the whole system;
the nature of just and Constitutional laws; and above all,
the vigilant and manly spirit which nourishes freedom, and
in return is nourished by it. If this spirit shall ever be
so far debased as to tolerate a law not obligatory on the
legislature as well as on the people, the people will be prepared
to tolerate anything but liberty.
James Madison
in The Federalist, No. 57, as referenced in the August
1994 committee report to accompany H.R. 4822, the Congressional
Accountability Act
|
Introduction
During the more than half-century prior to the
enactment of the Congressional Accountability Act of 1995(CAA),
Congress enacted major regulatory schemes covering many aspects
of workplace health and safety, civil rights, and the employment
relationship, while at the same time consistently excluding itself
and other instrumentalities of the Legislative Branch from these
laws. The nearly unanimous approval of the CAA in the opening days
of the 104th Congress reflected a renewed national consensus that
Congress must again live under the laws it enacts for the rest of
society and return to the constitutional principles declared so
eloquently by James Madison.
A fundamental aspect of the CAA is that it is
not meant to be static. The Act intended that there be an ongoing,
vigilant review of federal law to ensure that Congress continues
to apply to itself – where appropriate – the labor,
employment, health, and safety laws it passes. The Office of Compliance
was tasked with the responsibility to review federal law each Congress
and to make recommendations on how the CAA should be expanded. Unfortunately,
despite this well-intended process of review, no further action
has been taken by Congress since the passage of the CAA in 1995
to ensure that it is not still “making legal discrimination
in favor of themselves[.]” (James Madison, The Federalist,
No. 57)
Since its creation by the CAA, the Board of the
Office of Compliance has duly submitted biennial Reports to Congress
in 1996, 1998, and 2000 (as well as an Interim Report in 2001 regarding
section 508 of the Rehabilitation Act of 1973), detailing the limited
and prudent amendments that should be made to the CAA. With the
exception of a request by Committee on House Administration Chairman
Robert Ney for clarification of the recommendations made in the
2000 Report and the Interim Report of 2001, no progress has been
made on these recommendations. Neither the House nor the Senate
has held any hearings, and no legislative action has been taken
on any of the recommendations.
Now that Congress has had substantial time to
reflect on the contents of these reports, it is critical that it
continue the example set in 1995 with the enactment of the original
provisions of the CAA. Without action on these recommendations,
the noble goal of the Congressional Accountability Act may gradually
be eroded.
The overwhelming bipartisan support for the CAA’s
passage in 1995 is a testament to the importance of – and
support for – the principles the CAA embodies, both in Congress
and in the electorate as a whole. While recognizing the enormous
importance of many of the other issues faced today by Congress,
the Board is hopeful that issuance of this 2002 Report will result
in hearings and legislative action to finally implement these recommendations,
almost all of which have been outstanding since at least 1998.
Recommendations
In this series of renewed recommendations, we
first urge that Congress take appropriate steps to apply to itself
a number of employment, civil rights, and health and safety laws
which still do not apply to Congress or to Legislative Branch instrumentalities.
Application of these employment protective provisions to Congress
and its instrumentalities will help ensure that the basic principle
of the Act remains fully operable. These laws include (see Appendix
A):
- Equal accessibility for the disabled
to electronic information (section 508 of the Rehabilitation Act
of 1973);
- Protections against discrimination in any
place of public accommodation (Titles II and III of the Civil
Rights Act of 1964);
- A prohibition against discrimination for
those on jury duty;
- Banning employment discrimination based on
an employee’s bankruptcy;
- Forbidding the firing of an employee because
his or her wages are garnished for a debt; and
- Safeguards provided by the Whistle Blower
Protection Act for “whistle blowers.”
“[I]f a law
is right for the private sector, it is right for Congress. Congress
will write better laws when it has to live by the same laws
it imposes on the private sector and the executive branch...”
Rep. Christopher Shays during debate on HR 1, Congressional
Record, H-1379, 1995 |
Second, the Board repeats three specific recommended
changes to the CAA, initially requested in 1998, to improve inadequate
enforcement provisions of the law. Each of these recommendations
arises from the experience of the Office in attempting to effectively
enforce the various statutory schemes applied by the CAA. These
recommendations are (see Appendix B):
- Granting the General Counsel authority
to investigate and prosecute violations of the anti-retaliation
requirements of section 207 of the CAA;
- Granting the General Counsel explicit authorization
to seek a restraining order in district court in the case of imminent
danger under the OSH Act; and
- Adopting all record-keeping and notice-posting
requirements included in the various laws enforced under the CAA.
“...[E]xempting
Congress from various laws began because we thought we would
not have the enforcement power that we should have if executive
branches had administrative powers over us, so we would not
be a co-equal branch of government.”
Rep. Steny Hoyer, floor debate of HR 1, 1995 |
In addition, the Board suggests that the Office
be granted general parity with Executive Branch enforcement agencies
with regard to existing Executive Branch enforcement authority of
the statutes applied to the Legislative Branch through the CAA.
If an enforcement authority is considered by Congress to be appropriate
for the private or Federal sector, it should be appropriate for
Congress and the Legislative Branch as well.
The final – but by no means least important
– series of recommendations we submit here concerns the significant
separation of powers issues raised by regulatory laws which the
Executive Branch still applies to Congress. A fundamental rationale
for the CAA was to safeguard the Constitutional principle of separation
of powers, precluding the Executive Branch from exercising administrative
enforcement and jurisdiction over the Legislative Branch. Indeed,
it was separation of powers concerns which in the past led many
in Congress to support Congressional exemption
from regulatory statutes enforced by the Executive Branch of Government.
The 1993 Report of the Joint Committee
on the Organization of Congress concluded:
The ... constitutional concern ... [regarding]
separation of powers arises since administrative enforcement of
Federal EEO and labor laws is generally vested in executive agencies.
Allowing an executive agency to enforce these laws against Members
of Congress might, in some situations, violate the [Supreme] Court’s
separation of powers standards by ‘disrupt[ing] the proper
balance between the coordinate branches by prevent[ing] Congress
from accomplishing its constitutionally assigned functions.’
Although the CAA helped address many of the separation
of powers conflicts, the resolution of this thorny issue remains
incomplete. Still to be addressed are many statutes, already applied
to the Legislative Branch, which contain so-called “whistle
blower” protections designed to protect from retaliation those
who help in the statutes’ enforcement. These statutes are
distinct from the Whistle Blower Protection Act, mentioned above,
which does not currently apply to Congress. The Executive Branch
still exercises administrative and enforcement authority over Congress
and the Legislative Branch regarding these statutes. We urge that
Congress act to move enforcement authority from the Department of
Labor to the Office of Compliance to eliminate the separation of
powers conflict they currently represent. The statutes in question
include (see Appendix C):
- Toxic Substances Control Act;
- Clean Water Act;
- Safe Drinking Water Act;
- Energy Reorganization Act;
- Solid Waste Disposal/Resource Conservation
Recovery Act;
- Air Pollution Prevention and Control; and
- Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA).
“To respect
our constitutional system of checks and balances, we need to
sustain the separation of powers....The Office of Compliance...is
the only entity empowered to enforce employment and information
laws in Congress.” Senator
Joseph Lieberman, before the Senate Committee on Rules and Administration,
1994 |
Conclusion
The Board of Directors of the Office of Compliance
strongly urges the leadership of both houses of Congress to undertake
active review and consideration of the recommendations included
in this report. As the Congressional Accountability Act of 1995
approaches the end of its first decade, it is time for a comprehensive
analysis and update of the law to ensure that it continues to reflect
the bipartisan institutional commitment by the lawmakers of this
nation to democratic accountability.
“...With
passage of this Act...we said that we in Congress are no better
than the businessmen and women in our states....We no longer
sit in Washington and tell them how to run their business.”
Senator Charles Grassley, “Practicing What We Preach:
A Legislative History of Congressional Accountability” |
The Board also encourages the leadership to reinvigorate
Congress’s compliance with section 102(b)(3) of the CAA. Section
102(b)(3) requires that every House and Senate committee report
accompanying a bill or joint resolution that impacts terms and conditions
of employment or access to public services or accommodations must
“describe the manner in which the provisions of the bill or
joint resolution apply to the legislative branch” or “in
the case of a provision not applicable to the legislative branch,
include a statement of the reasons the provision does not apply.”
In the past several years, this requirement has not always been
followed.
This Board, its executive appointees, and the
staff of the Office are prepared to work with the leadership, our
oversight committees, other interested Members, and instrumentalities
in Congress and the Legislative Branch to make these recommendations
part of the Congressional Accountability Act during the next Congress.
Respectfully submitted,
_____________________
Susan S. Robfogel, Chair
_____________________
Barbara Camens
_____________________
Alan Friedman
_____________________
Roberta Holzwarth
_____________________
Barbara Childs Wallace
December 2002
Appendix A:
Employment, civil rights, and health and
safety laws which still do not apply to Congress or other Legislative
Branch instrumentalities
These statutes below, with the exception of
Section 508 of the Rehabilitation Act, were all first identified
by the Board in 1996 as not included among the eleven enumerated
laws which were applied to Congress through the Congressional Accountability
Act of 1995. The absence of section 508 of the Rehabilitation Act
was first identified in our 2001 Interim Report to Congress. We
here repeat the recommendations – made in our Reports of 1996,
1998, and 2000, as well as those of the Interim 2001 Report –
that these statutes should also be applied to Congress and the Legislative
Branch through the Act. After the Board submitted its 2000 Report
and 2001 Interim Report, Chairman Ney of the Committee on House
Administration propounded several questions regarding these recommendations,
all of which the Board answered in writing.
I. The 1998 amendments to section
508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d)
In November 2001, the Board submitted an Interim
Section 102(b) Report to Congress regarding the 1998 amendments
to the Rehabilitation Act of 1973 in which the Board urged Congress
to make those amendments applicable to itself and the Legislative
Branch. The purpose of the 1998 amendments is to:
require each Federal
agency to procure, maintain, and use electronic and information
technology that allows individuals with disabilities the same
access to technology as individuals without disabilities.
[Senate Report on S. 1579, March 1998]
As of this time, some four years later, software
and other equipment which is “508 compliant” is readily
available.
The Board reiterates our recommendation of last
Fall that Congress and the Legislative Branch, including the General
Accounting Office, Government Printing Office, and Library of Congress
be required to comply with the mandates of section 508.
II. Titles II and III of the Civil Rights
Act of 1964 (42 U.S.C. §§ 2000a to 2000a-6, 2000b to 2000b-3)
These titles prohibit discrimination or segregation
on the basis of race, color, religion, or national origin regarding
the goods, services, facilities, privileges, advantages, and accommodations
of “any place of public accommodation” as defined in
the Act. Although the CAA incorporated the protections of titles
II and III of the ADA, which prohibit discrimination on the basis
of disability with respect to access to public services and accommodations,
it does not extend protection against discrimination based upon
race, color, religion, or national origin with respect to access
to public services and accommodations. For the reasons set forth
in the 1996, 1998 and 2000 Section 102(b) Reports, the Board has
determined that the rights and protections afforded by titles II
and III of the Civil Rights Act of 1964 against discrimination with
respect to places of public accommodation should be applied to employing
offices within the Legislative Branch.
III. Prohibition against discrimination
on the basis of jury duty (28 U.S.C. § 1875)
Section 1875 provides that no employer shall
discharge, threaten to discharge, intimidate, or coerce any permanent
employee by reason of such employee's jury service, or the attendance
or scheduled attendance in connection with such service, in any
court of the United States. This section currently does not cover
Legislative Branch employment. For the reason set forth in the 1996,
1998, and 2000 Section 102(b) Reports, the Board has determined
that the rights and protections against discrimination on this basis
should be applied to employing offices within the Legislative Branch.
IV. Prohibition against discrimination
on the basis of bankruptcy (11 U.S.C. § 525)
Section 525(a) provides that “a governmental
unit” may not deny employment to, terminate the employment
of, or discriminate with respect to employment against, a person
who is or has been a debtor under the bankruptcy statutes. This
provision currently does not apply to the Legislative Branch. For
the reasons stated in the 1996, 1998 and 2000 Section 102(b) Reports,
the Board recommends that the rights and protections against discrimination
on this basis should be applied to employing offices within the
Legislative Branch.
V. Prohibition
against discharge from employment by reason of garnishment (15 U.S.C.
§ 1674(a))
Section 1674(a) prohibits discharge of any employee
because his or her earnings “have been subject to garnishment
for any one indebtedness.” This section is limited to private
employers, so it currently has no application to the Legislative
Branch. For the reason set forth in the 1996, 1998 and 2000 Section
102(b) Reports, the Board has determined that the rights and protections
against discrimination on this basis should be applied to employing
offices within the Legislative Branch.
VI. Whistle Blower Protection Act
In addition to the “whistle blower”
protection provisions of the various environmental statutes which
are referenced in Appendix C of this report, there is also a “Whistle
Blower Protection Act” for Executive Branch employees which
duplicates coverage of employees under the various environmental
laws, but goes far beyond the parameters of those laws to cover
many other forms of “whistle blowing.”
(A) Current coverage of the law
The Whistle Blower Protection Act (WPA) currently
applies to “an Executive Agency and the Government Printing
Office, but does not include ... (ii) ... as determined by the President,
any Executive agency or unit thereof the principal function of which
is the conduct of foreign intelligence or counterintelligence activities;
or (iii) the General Accounting Office.” Section 2302(a)(2)(C).
The protections of the Act are set forth in section 2302(b). Subsection
(b)(1) prohibits any discrimination against employees in violation
of Title VII, ADEA, FLSA (sex discrimination), or section 501 of
the Rehabilitation Act. “Covered positions” for the
purposes of the WPA include those in the competitive service, career
SES, and excepted service which are not policy level. See subsection
(A)(2)(B). All regulatory aspects of section 2302 apply to those
“covered positions” only.
A threshold issue regarding application of section
2302 to the Legislative Branch (including the General Accounting
Office) is whether there are employees in this branch in positions
comparable to the positions covered by section 2302. In this regard,
we should mention that 5 CFR 1.2 states, inter alia, that the competitive
service includes “all positions in the legislative ... branch
... which are specifically made subject to the civil service laws
by statute.” However, with the possible exception of those
employees covered by the Architect of the Capitol Human Resources
Act (40 U.S.C. 166b-7),1 we are aware of no employees
in the Legislative Branch who are in the “competitive service”
or “career SES” personnel systems, or in systems analogous
to those of the competitive service or career SES.
However, most if not all Legislative Branch
employees have terms and conditions of employment which are analogous
to those covered positions in the “excepted service below
the policy level.” “Excepted service” is defined
as “those civil service positions which are not in the competitive
service or the senior executive service.” The term also includes
the “unclassified civil service” and “unclassified
service... ,” (5 U.S.C. 2103) and related concepts as referenced
in 5 CFR 1.4(c).2
(B) Recommended coverage under the CAA
Subsection (b)(2) of the WPA provides anyone
with personnel authority may not “solicit or consider any
recommendation or statement, oral or written, with respect to any
individual who requests or is under consideration for any personnel
action unless such recommendation or statement is based on the personal
knowledge or records of the person furnishing it and consists of
- (A) an evaluation of the work performance, ability, aptitude,
or general qualifications of such individual; or (B) an evaluation
of the character, loyalty, or suitability of such individual...”
This section discourages arm’s length “political”
recommendations in the filling of covered positions. (See also 5
U.S.C. 3303, which prohibits recommendations for appointments in
the competitive service from a Senator or Representative “except
as to the character or residence of the applicant.”) The Board
believes that the section (b)(2) rule should be made applicable
to all Legislative Branch employing offices other than the two houses
of Congress and their penumbral entities listed in section 220(e)(2)(A)
- (E) of the CAA.
Subsections (b)(3) through (10) prohibit any
personnel decision maker from taking any action to:
(3) coerce the political
activity of any person (including the providing of any political
contribution or service), or take any action against any employee
or applicant for employment as a reprisal for the refusal of any
person to engage in such political activity;
(4) deceive or wilfully obstruct any person
with respect to such person’s right to compete for employment;
(5) influence any person to withdraw from competition for any
position for the purpose of improving or injuring the prospects
of any other person for employment;
(6) grant any preference or advantage not
authorized by law, rule, or regulation to any employee or applicant
for employment (including defining the scope or manner of competition
or the requirements for any position) for the purpose of improving
or injuring the prospects of any particular person for employment;
(7) appoint, employ, promote, advance, or advocate for the appointment,
promotion, advancement, in or to a civilian position any individual
who is a relative (as defined in section 3110(a)(3) of this title)
of such employee if such position is in the agency in which the
employee is serving as a public official (as defined in section
3110(a)(2) of this title) or over which such employee exercises
jurisdiction or control as such an official;
(8) take or fail to take, or threaten to take or fail to take,
a personnel action with respect to any employee or applicant for
employment because of -
(A) any disclosure of information by an employee or applicant
for employment because of-
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health
or safety,
if such disclosure is not specifically prohibited by law and if
such information is not specifically required by Executive Order
to be kept secret in the interest of national defense or the conduct
of foreign affairs; or
(B) any disclosure to the Special Counsel, or to the Inspector
General of an agency or another employee designated by the head
of the agency to receive such disclosures of information which
the employee or applicant reasonably believes evidences -
(i) [same text as (i) above.]
(ii) [same text as (ii) above.];
(9) take or fail to take, or threaten to take or fail to take,
any personnel action against any employee or applicant for employment
because of -
(A) the exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation;
(B) testifying for or otherwise lawfully assisting any individual
in the exercise of any right referred to in subparagraph (A);
(C) cooperating with or disclosing information to the Inspector
General of an agency, or the Special Counsel, in accordance with
applicable provisions of law; or
(D) for refusing to obey an order that would require the individual
to violate a
law;
(10) discriminate for or against any employee or applicant for
employment on the basis of conduct which does not adversely affect
the performance of the employee or applicant or the performance
of others; except that nothing in this paragraph shall prohibit
an agency from taking into account in determining suitability
or fitness any conviction of the employee or applicant of any
crime under the laws of any State or the District of Columbia,
or of the United States;
The Office of Personnel Management (OPM) has
concluded that subsection (b)(10) prohibits discrimination based
upon sexual orientation. “Sexual orientation,” as defined
by OPM, means “homosexuality, bisexuality, or heterosexuality.”
[Addressing Sexual Orientation Discrimination
in Federal Civilian Employment: A Guide to Employee’s Rights.]
The Board strongly urges that the substance of each of these provisions
be applied to all employing offices other than those listed in section
220(e)(2)(A) - (E) of the CAA.3
Subsection (b)(11) provides that a personnel
decision maker may not “(A) knowingly take, recommend, or
approve any personnel action if the taking of such action would
violate a veterans’ preference requirement; or (B) knowingly
fail to take, recommend, or approve any personnel action if the
failure to take such action would violate a veteran’s preference
requirement... ” Of course, the CAA already covers the Veterans
Employment Opportunity Act (VEOA). However, subsection (e) of section
2302 sets out the various statutory provisions which constitute
“veteran’s preference requirements.” They include
numerous provisions of Title 5 of the U.S. Code concerning the “competitive
service,” as well as sections from Titles 10, 16, 22, and
39 (as well as Title 38 - VEOA). These non-VEOA sections cover specific
personnel contexts within the Executive Branch, and are not relevant
to Legislative Branch employment. Therefore, the Board does not
recommend that subsection (b)(11) be included within the CAA.4
Subsection (b)(12) provides that a personnel
decision maker may not “take or fail to take any other personnel
action if the taking of or failure to take such action violates
any law, rule, or regulation implementing, or directly concerning,
the merit system principles in section 2301 of this title.”
The merit system principles set out at 5 U.S.C. 2301 are each expressions
of high purpose which should guide every Federal employer, regardless
of the branch of government involved. However, the Merit Systems
Protection Board (MSPB) has determined that these principles are
not self-executing, and do not provide an independent source of
Board jurisdiction. See D’Leo v.
Dep’t of Navy, 53 MSPR 44 (1992). Neither does section
2301 provide a predicate for a section 1983 civil rights claim or
private right of action. See Wright v.
Park 5 F3d 586 (1st Cir. 1993); Phillips
v. GSA 917 F2d 1297 (Fed. Cir. 1990); and Schrachta
v. Curtis 752 F2d 1257 (7th Cir. 1985). Therefore, the Board
does not recommend that subsection (b)(12) be included within the
CAA.
Subsection (c) of section 2302 states:
The head of each
agency shall be responsible for the prevention of prohibited personnel
practices, for the compliance with and enforcement of applicable
civil service laws, rules, and regulations, and other aspects
of personnel management, and for ensuring (in consultation
with the Office of Special Counsel) that agency employees are
informed of the rights and remedies available to them under
this chapter and chapter 12 of this title. Any individual to
whom the head of an agency delegates authority for personnel management,
or for any aspect thereof, shall be similarly responsible within
the limits of the delegation. [emphasis added]
The Board urges that the underlined portions
of this provision be incorporated within the CAA, since the “prohibited
practices” set out at section 2302(b)(2) should also be applied.
(See above)
The final subsection (d) of section 2302 requires
that section 2302 not be interpreted to “extinguish or lessen
any effort to achieve equal employment opportunity through affirmative
action or any right or remedy available to any employee or applicant
for employment in the civil service under...” the same list
of CAA covered statutes referenced in subsection (b)(1). The concept
of “affirmative action” has a much more questionable
role in equal employment opportunity today. With that observation,
the Board also notes that the “excepted service” is
within the “civil service,” and that the philosophy
guiding the CAA is that the Legislative Branch should be brought
under the same requirements (be they controversial, anachronistic,
or not) under which the Executive Branch or the private sector labors.
Therefore, the Board recommends that this section be included under
the CAA.
(C) Recommended enforcement mechanism
Currently, the process for remedying prohibited
practices rests within the authority of the Office of Special Counsel
and of the MSPB. Pursuant to 5 U.S.C. 1214, the Office of Special
Counsel must review every assertion by a covered employee that a
prohibited practice has occurred. The Special Counsel may then petition
the MSPB on behalf of the complaining employee. However, even if
the Office of Special Counsel decides not to go forward with an
alleged prohibited practice claim, the employee can take the matter
before the MSPB within a certain period after being informed that
the Office of Special Counsel will not proceed with the matter.
The procedure for processing prohibited practice
claims is set out at 5 U.S.C. 1214. That procedure can be adapted
for the CAA enforcement environment by replacing all references
to the “Office of Special Counsel” with references to
the “General Counsel of the Office of Compliance.” References
to the “Merit System Protection Board” should be replaced
by references to the “administrative dispute resolution procedures
in sections 402, 403(d), 405, 406, and 407 of the CAA.” The
references to a “member of the Merit Systems Protection Board”
at section 1214(b)(1)(A)(i) should be changed to “Member of
the Board of Directors. Any references to “the President,”
“the Office of Personnel Management,” “Office
of Management and Budget,” or any officials thereof should
be excised. References to the “Attorney General” should
be amended to reference “Senate Select Committee on Ethics,
House Committee on Standards of Official Conduct, or other appropriate
oversight committee or body.”
Pursuant to 5 U.S.C. 1221, employees who have
unsuccessfully exhausted their administrative remedies before the
Office of Special Counsel are accorded an “individual right
of action” or “IRA” to bring their claim directly
to the MSPB. This right should also be extended to Legislative Branch
employees under the CAA. The Board recommends that the most appropriate
procedure would be to authorize employees whose complaints have
not been processed favorably by the General Counsel to initiate
the Office’s dispute resolution process themselves at the
mediation stage (section 403 of the Act).
The Board recommends that Congress provide whistle
blower protection to Legislative Branch employees comparable to
that provided to Executive Branch employees under 5 U.S.C. §
2302(b)(8), and 5 U.S.C. 1221.
__________
Appendix B:
Regulatory enforcement provisions for laws
which are already applicable to Congress under the Act
I. Additional enforcement mechanisms
The Board recommends three specific changes
to the CAA respecting the application of these currently inapplicable
enforcement provisions:
(A) Authority to investigate and prosecute
violations of § 207 of the CAA, which prohibits intimidation
and reprisal
The Board recommends that the Office should
be granted enforcement authority with respect to section 207 of
the CAA because of the strong institutional interest in protecting
employees against intimidation or reprisal for the exercise of the
rights provided by the CAA or for participation in the CAA’s
processes. Investigation and prosecution by the Office would more
effectively vindicate those rights, dispel the chilling effect that
intimidation and reprisal create, and protect the integrity of the
Act and its processes.
Enforcement authority with respect to intimidation
or reprisal is provided to the agencies that administer and enforce
the CAA laws in the private sector.1 In contrast, under
the CAA, the rights and protections provided by section 207 are
vindicated only if the employee, after counseling and mediation,
pursues his or her claim before a hearing officer or in district
court. Experience in the administration and enforcement of the CAA
argues that the Office should be granted comparable authority to
that exercised by the Executive Branch agencies that implement the
CAA laws in the private sector. Covered employees who have sought
information from the Office respecting their substantive rights
under the Act and the processes available for vindicating these
rights have expressed concern about their exposure in coming forward
to bring a claim, as well as a reluctance and an inability to shoulder
the entire litigation burden without the support of agency investigation
or prosecution. Moreover, employees who have already brought their
original dispute to the counseling and mediation processes of the
Office and then perceive a reprisal for that action may be more
reluctant to use once again the very processes that led to the claimed
reprisal.
Whatever the reasons a particular employee does
not bring a claim of intimidation or reprisal, such unresolved claims
threaten to undermine the efficacy of the CAA. Particularly detrimental
is the chilling effect on other employees who may wish to bring
a claim or who are potential witnesses in other actions under the
CAA. Without effective enforcement against intimidation and reprisal,
the promise of the CAA that “Congressional employees will
have the civil rights and social legislation that ensure fair treatment
of workers in the private sector”2 is rendered
illusory.
Therefore, in order to preserve confidence in
the Act and to avoid discouraging Legislative Branch employees from
exercising their rights or supporting others who do, the Board has
concluded that the Congress should grant the Office the authority
to investigate and prosecute allegations of intimidation or reprisal
as they would be investigated and prosecuted in the private sector
by the implementing agency. Enforcement authority can be exercised
in harmony with the alternative dispute resolution process and the
private right of action provided by the CAA, and will further the
purposes of section 207 of the Act.
(B) § 215(b) of the CAA, which makes
applicable the remedies set forth in § 13(a) of the OSH Act,
gives the General Counsel the authority to seek a restraining order
in district court in case of imminent danger to health or safety
With respect to the substantive provisions for
which the Office already has enforcement authority,3
the Board’s experience to date has illuminated a need to revisit
only one area, section 215(b) of the CAA which provides the remedy
for a violation of the substantive provisions of the OSH Act made
applicable by the CAA.4 Under section 215(b) the remedy
for a violation of the CAA shall be a corrective order, “including
such order as would be appropriate if issued under section 13(a)”
of the OSH Act. Among other things, the OSH Act authorizes the Secretary
of Labor to seek a temporary restraining order in district court
in the case of imminent danger. The General Counsel of the Office
of Compliance, who enforces the OSH Act provisions as made applicable
by the CAA, takes the position that section 213(b), by its terms,
gives him the same standing to petition the district court for a
temporary restraining order in a case of imminent danger as the
Labor Department has under the OSH Act. However, it has been suggested
that the language of section 213(b) does not clearly provide that
authority.
Although it has not yet proven necessary to
resolve a case of imminent danger by means of court order because
compliance with the provisions of section 5 of the OSH Act has been
achieved through other means,5 the express authority
to seek preliminary injunctive relief is essential to the Office’s
ability promptly to eliminate all potential workplace hazards. If
it should become necessary to prosecute a case of imminent danger
by means of district court order, action must be swift and sure.
Therefore, the Board recommends that the CAA be amended to clarify
that the General Counsel has the standing to seek a temporary restraining
order in federal district court and that the court has jurisdiction
to issue the order.
(C) Record-keeping and notice-posting requirements
of the private sector CAA laws
Experience in the administration of the Act
leads the Board to recommend that all currently inapplicable record-keeping
and notice-posting provisions be made applicable under the CAA.
The Board recommends that the Office be granted the authority to
require that records be kept and notices posted in the same manner
as required by the agencies that enforce the provisions of law made
applicable by the CAA in the private sector.
Most of the laws made generally applicable by
the CAA authorize the enforcing agency to require the keeping of
pertinent records and the posting of notices in the workplace. Experience
has demonstrated that where employing offices have voluntarily kept
records, these records have greatly assisted in the speedy resolution
of disputed matters. Especially where the law has not been violated,
employing offices can more readily demonstrate compliance if adequate
records have been made and preserved. Moreover, based upon its experience
and expertise, the Board has concluded that effective record keeping
is not only beneficial to the employer, but in many cases is necessary
to the effective vindication of the rights of employees.
Posting notices that the employing office and
its employees are covered by the rights and responsibilities of
the CAA is a critically important educational tool and reminder
both to employers and employees that they are subject to the rights
and remedies of the CAA. Where posting is required or authorized
as a remedial sanction (an authority the Office already has under
the OSH Act and Federal Service Labor Management Relations Statute
[FSLMRS]), the Office should have all such authority, as well. Such
posting is required under the applicable statutes, and the Board
discerns no reason why the same requirements should not apply to
the Legislative Branch.
Additionally, living with the same record-keeping
and notice-posting requirements as apply in the private sector will
give Congress the practical knowledge of the costs and benefits
of these requirements. Congress will be able to determine experientially
whether the benefits of each record-keeping and notice-posting requirement
outweigh the burdens. Application of the record-keeping and notice-posting
requirements will thus achieve one of the primary goals of the CAA,
that the Legislative Branch live under the same laws as the rest
of the nation’s citizens.
(D) Other enforcement authorities exercised
by the agencies that implement the CAA laws for the private sector
To further the goal of parity, the Board also
recommends that Congress grant the Office the remaining enforcement
authorities that Executive Branch agencies utilize to administer
and enforce the provisions of law made applicable by the CAA in
the private sector. Implementing agencies in the Executive Branch
have investigatory and prosecutorial authorities with respect to
all of the private sector CAA laws, except the WARN Act. Based on
the experience and expertise of the Office, granting these same
enforcement authorities would make the CAA more comprehensive and
effective. The Office can harmonize the exercise of investigatory
and prosecutorial authorities with the use of the model alternative
dispute resolution system that the CAA creates. By taking these
steps to live under full agency enforcement authority, the Congress
will strengthen the bond that the CAA created between the legislator
and the legislated.
__________
Appendix C:
Employee Protection Provisions of Environmental
Statutes
Over the years, Congress has separately included
provisions within many of the environmental protection laws which
protect employees and others from retaliation because of actions
taken by the employees or others in support of the goals of these
laws. Because these protective provisions are all enforced through
the same administrative procedures in the Department of Labor, we
are treating them together.
I. Employee protection provisions that
should be applied to Congress
(A) Introduction
This recommendation concerns the employee protection
provisions of a number of statutory schemes: the Toxic Substances
Control Act, Clean Water Act, Safe Drinking Water Act, Energy Reorganization
Act, Solid Waste Disposal Act/Resources Conservation Recovery Act,
Clean Air Act, and Comprehensive Environmental Response, Compensation
and Liability Act. In the Board’s 1996 Section 102(b) Report,
we stated:
It is unclear to what extent, if any, these
provisions apply to entities in the Legislative Branch. Furthermore,
even if applicable or partly applicable, it is unclear whether
and to what extent the Legislative Branch has the type of employees
and employing offices that would be subject to these provisions.
Consequently, the Board reserves judgement on whether or not these
provisions should be made applicable to the Legislative Branch
at this time.
Further, in the 1998 Report we concluded that,
while it remained unclear whether some or all of the environmental
statutes apply to the Legislative Branch, “[t]he Board recommends
that Congress should adopt legislation clarifying that the employee
protection provisions in the environmental protection statutes apply
to all entities within the Legislative Branch.”
In preparation for this Report, the Board has
again refined our review of the various environmental regulatory
statutes. We have attempted to answer two questions regarding each
statutory scheme:
- Does the underlying regulatory statute
already generally apply to the Legislative Branch?
- Does the specific employee protective provision
already apply to the Legislative Branch?
The answers to these questions provide an appropriate
framework for our recommendation regarding each employee protective
provision. If the underlying statutory scheme clearly does not already
apply to any entity in the Legislative Branch, we will not recommend
that the employee protective provision of that statute be applied
to the Legislative Branch, since there exists no applicable regulation
for which an employee needs protection from retaliation.1
Only the Toxic Substances Control Act (with one section excepted)
has been withdrawn from our 1998 recommendations because of our
conclusion that the overall statute does not apply to the Legislative
Branch.
On the other hand, if the underlying regulatory
statute does apply to the Legislative Branch, then we address the
application of the employee protections to the Legislative Branch.
The result of this refinement is a more detailed statute-by-statute
recommendation. The employee protection provisions of each of the
seven environmental protection statutes discussed below are currently
enforced by the U.S. Department of Labor in one unified administrative
procedure. We will discuss that procedure after our description
of the seven statutes.
(B) Seven specific statutes for which the
Board recommends that enforcement authority be transferred from
the U.S. Department of Labor to the Office of Compliance
(1) 15 U.S.C. 2622 - Toxic Substances
Control Act
Section 2622 of the Toxic Substances Control
Act requires at subsection (a):
No employer may discharge any employee or
otherwise discriminate against any employee with respect to the
employee’s compensation, terms, conditions, or privileges
of employment because the employee (or any person acting pursuant
to the request of the employee) has - (1) commenced, caused to
be commenced, or is about to commence or cause to be commenced
a proceeding under this chapter; (2) testified or is about to
testify in any such proceeding; or (3) assisted or participated
or is about to assist or participate in any manner in such a proceeding
or in any other action to carry out the purposes of this chapter.
The term “employer” is not defined
in the “definition” provision at section 2602 of Title
15. Neither is there in this subchapter regarding control of toxic
substances any provision setting out the responsibilities of Federal
departments, agencies, and instrumentalities, or any form of waiver
of sovereign immunity by the Federal Government. Consequently, the
Labor Department’s Administrative Review Board determined
in Berkman v. U.S. Coast Guard Academy,
ARB Case No. 98-056 (2000) that the United States did not waive
its sovereign immunity regarding section 2622. The Board is of the
opinion that the employee rights under this provision do not currently
apply to the Federal Government. Consequently, we do not recommend
that the employee protective standards of the Toxic Substances Control
Act be applied to the Legislative Branch.2
However, the Toxic Substances Control Act also
includes at 15 U.S.C. 2688 a Federal facilities compliance requirement
regarding lead-based paint hazards. Section 2688 states in relevant
part, as follows:
Each department, agency, and instrumentality
of executive, legislative, and judicial branches of the Federal
Government ... shall be subject to, and comply with all Federal,
State, interstate, and local requirements, both substantive and
procedural ... respecting lead-based paint, lead-based paint activities,
and lead-based paint hazards in the same manner, and to the same
extent as any nongovernmental entity ... The United States hereby
expressly waives any immunity otherwise applicable to the United
States with respect to any such substantive or procedural requirement.
The Board concludes that the clear applicability
of section 2688 to the Legislative Branch suggests that section
2622 rights also be accorded to all covered employees under the
CAA, including those employed by the General Accounting Office,
Government Printing Office, and Library of Congress. The Board so
recommends.
(2) 33 U.S.C. 1367 - Clean Water Act
Chapter 26 of Title 33 concerns “water
pollution prevention and control.” Section 1323(a) of Chapter
26 specifically states that “[e]ach department, agency, or
instrumentality of the executive, legislative, and judicial branches
of the Federal Government ... shall be subject to, and comply with,
all Federal, State, interstate, and local requirements, administrative
authority , and process and sanctions respecting the control and
abatement of water pollution in the same manner, and to the same
extent as any nongovernmental entity ... This subsection shall apply
notwithstanding any immunity of such agencies, officers, agents,
and employees under any law or rule of law....” Pursuant to
section 1323(a), the Legislative Branch is clearly subject to water
pollution regulation.
Pursuant to section 1367(a) of Title 33:
No person shall fire, or in any other way
discriminate against, or cause to be fired or discriminated against,
any employee or any authorized representative of employees by
reason of the fact that such employee or representative has filed,
instituted, or caused to be filed or instituted any proceeding
under this chapter, or has testified or is about to testify in
any proceeding resulting from the administration or enforcement
of the provision of this chapter.
Because the general water pollution statutory
regulations apply to the entire Legislative Branch, and because
DOL has applied section 1367 employee protections to the Federal
government, we recommend that the employee protective provision
at section 1367(a) of Title 33 be applied to all covered employees
under the CAA, including those employees of the General Accounting
Office, Government Printing Office, and Library of Congress.
(3) 42 U.S.C. 300j-9(i) - Safe Drinking
Water Act
Section 300j-9(i) is a portion of subchapter
XII of Chapter 6A (“Public Health Service”) of Title
42, and concerns “Safety of Public Water Systems.” The
term “person,” as used in the subchapter, includes any
“... Federal agency (and includes officers, employees, and
agents of any ... Federal agency).” 42 U.S.C. 300f(12). “Federal
agency” is defined as “any department, agency, or instrumentality
of the United States.” 42 U.S.C. 300f(11). Subchapter XII
includes a number of regulatory provisions prohibiting any “person”
from contaminating a public water supply. For instance, section
300g-6 prohibits the use of lead pipes, solder, and flux; section
300i-1 prohibits tampering with a public water system. Moreover,
section 300j-6(a) ensures that:
Each department, agency, and instrumentality
of the executive, legislative, and judicial branches of the Federal
government -
- owning or operating any facility in a wellhead
protection area;
- engaged in any activity at such facility
resulting, or which may result, in the contamination of water
supplies in any such area;
- owning or operating any public water system;
or
- engaged in any activity resulting, or which
may result in, underground injection which endangers drinking
water ... Shall be subject to and comply with, all Federal, State,
interstate, and local requirements, both substantive and procedural
... in the same manner and to the same extent as any person is
subject to such requirements .... The United States hereby expressly
waives any immunity otherwise applicable to the United States
with respect to any such substantive or procedural requirement
....
Legislative Branch agencies and entities are
generally subject to compliance with public water system regulation.
The employee protection provision at subsection
300j-9(i) provides that:
(1) No employer may discharge any employee
or otherwise discriminate against any employee with respect to
his compensation, terms, conditions, or privileges of employment
because the employee (or any person acting pursuant to a request
of the employee) has - (A) commenced, caused to be commenced,
or is about to commence or cause to be commenced a proceeding
under this subchapter or proceeding for the administration or
enforcement of drinking water regulations or underground injection
control programs of a State, (B) testified or is about to testify
in any such proceeding, or (C) assisted or participated or is
about to assist or participate in any manner in such a proceeding
or in any other action to carry out the purposes of this subchapter.
The Department of Labor currently applies this
employee protection provision to the Federal Government. We recommend
that employee protective provisions of section 300j-9(i) be applied
to all covered employees under the CAA, including employees of the
General Accounting Office, Government Printing Office, and Library
of Congress.
(4) 42 U.S.C. 5851 - Energy Reorganization
Act
Although section 5851 establishes employee protections
regarding activities regulated by the Atomic Energy Act of 1954
(42 U.S.C. 2011 et seq), this provision is not codified in that
Act, but in another chapter of Title 42 regarding “Energy
Sources Development.” Within the Atomic Energy Act itself,
the term “‘agency of the United States’ means
the Executive Branch of the United States, or any Government agency,
or the Legislative Branch of the United States, or any agency, committee,
commission, office, or other establishment in the Legislative Branch
....” 42 U.S.C. 2014(a).
At first blush, it seems improbable that any nuclear energy or material
regulation would have any applicability in the Legislative Branch.
However, particularly as regards restricted information and Legislative
Branch utilization of experts and information from the Executive
Branch, there is Legislative Branch involvement in nuclear regulatory
issues. For instance, section 2259(d) of the Atomic Energy Act states:
The committees of the Senate and the House
of Representatives which, under the rules of the Senate and the
House, have jurisdiction over the development, utilization, or
application of nuclear energy, are authorized to use the services,
information, facilities, and personnel of any Government agency
which has activities or responsibilities in the field of nuclear
energy which are within the jurisdiction of such committees: Provided,
however, that any utilization of personnel by such committees
shall be on a reimbursable basis ....
Section 2277 mandates fines to be levied upon
an “employee of an agency of the United States ... [who] knowingly
communicates ...” restricted data. These and perhaps other
aspects of the Atomic Energy Act’s regulatory scheme can directly
involve employing offices and employees in the Legislative Branch.
Therefore, the Legislative Branch is covered by the Atomic Energy
Act.
The employee protection provision at subsection
(a) of section 5851 states:
(1) No employer may
discharge any employee or otherwise discriminate against any employee
with respect to his compensation, terms, conditions, or privileges
of employment because the employee (or any person acting pursuant
to a request of the employee) -
(A) notified his employer of an alleged violation of this chapter
or the Atomic Energy Act...;
(B) refused to engage in any practice made unlawful by this chapter
or the Atomic Energy Act ...;
(C) testified before Congress or at any Federal or State proceeding
regarding a proceeding (or proposed proceeding) of this chapter
or the Atomic Energy Act ..;
(D) ... commenced a proceeding under this chapter or the ... Act
...;
(E) testified ...;
(F) assisted or participated ... in any other manner ....
(2) For purposes of this section, the term
‘employer’ includes-
(A) a licensee of the Commission or of an agreement State ...;
(B) an applicant for a license from the Commission or such agreement
State;
(C) a contractor or subcontractor of such a licensee or applicant,
and;
(D) a contractor or subcontractor of the Department of Energy
....
Because the Legislative Branch is regulated to
some extent through the underlying Atomic Energy Act, we recommend
that the employee protections of section 5851(a) of Title 42 also
be applied to all covered employees under the CAA, including the
employees of the General Accounting Office, Government Printing
Office, and Library of Congress.
(5) 42 U.S.C. 6971 - Solid Waste Disposal
Act/Resource Conservation Recovery Act
The “chapter” in which section 6971
is placed, is Chapter 82 of Title 42, and concerns “Solid
Waste Disposal.” In subsection 6903(4) of the “definitions”
section, the term “Federal agency” means “any
department, agency, or other instrumentality of the Federal Government,
any independent agency or establishment of the Federal Government
including any Government corporation, and the Government Printing
Office.”
Section 6964 of Chapter 82 makes further reference
to coverage of the Federal Government. Even though the title of
the section is “Application of solid waste disposal guidelines
to Executive agencies,” the text of subsection (a), “Compliance,”
states at paragraph (2): “Each Executive agency or
any unit of the Legislative Branch of the Federal Government
which conducts any activity - (A) which generates solid waste, and
(B) which, if conducted by a person other than such agency, would
require a permit or license from such agency in order to dispose
of such solid waste, shall ensure compliance with such guidelines
and the purposes of this chapter in conducting such activity.”3
(Emphasis added.) Therefore, it is reasonable to assume that the
regulatory coverage of this statute extends beyond GPO to all Legislative
Branch agencies.
This subsection (a)(4) further stipulates that
“[t]he President or the Committee on House Oversight [presently
the Committee on House Administration] of the House of Representatives
and the Committee on Rules and Administration of the Senate with
regard to any unit of the Legislative Branch of the Federal Government
shall prescribe regulations to carry out this subsection.”4
Section 6961(a) of Chapter 82 states:
Each department, agency, and instrumentality
of the executive, legislative, and judicial branches of the Federal
Government (1) having jurisdiction over any solid waste management
facility or disposal site, or (2) engaged in any activity resulting,
or which may result, in the disposal or management of solid waste
or hazardous waste shall be subject to, and comply with, all Federal,
State, interstate, and local requirements, both substantive and
procedural (including any requirements for permits or reporting
or any provisions for injunctive relief and such sanctions as
may be imposed by a court to enforce such relief), respecting
control and abatement of solid waste or hazardous waste disposal
and management in the same manner, and to the same extent, as
any person is subject to such requirements .... The Federal ...
substantive and procedural requirements referred to in this subsection
include, but are not limited to, all administrative orders and
all civil and administrative penalties and fines, regardless of
whether such penalties or fines are punitive or coercive in nature
.... The United States hereby expressly waives any immunity otherwise
applicable to the United States with respect to any such substantive
or procedural requirement (including, but not limited to, any
injunctive relief, administrative order or civil or administrative
penalty or fine referred to in the preceding sentence, or reasonable
service charge).
This provision, in its current form, represents
the Congress’s response to a 1992 decision of the Supreme
Court in U.S. Dep’t. of Energy v.
Ohio, 503 U.S. 607, 112 S Ct 1627 (1992). There, the Court
narrowly interpreted the previous language waiving sovereign immunity
in section 6961(a). In PL 102-386, the Federal Facility Compliance
Act, the Congress strengthened the waiver language in the section.
In H.R. Rep. No. 11, 102d Cong., 2d Sess. 2 (1992), the House reported:
In the Committee’s view the language
of the existing law was sufficiently clear to waive federal sovereign
immunity for all provisions of solid and hazardous waste laws,
including the imposition of criminal fines, civil or administrative
penalties and all other sanctions. Thus, this legislation reaffirms
existing law, and applies to all actions of the federal government,
past and present, which are subject to solid or hazardous waste
laws.
See, Charter Int’l
Oil Co. v. U.S. 925 F Supp 104 (D.R.I. 1996).
At least since the 1992 amendment to section
6961, there can be little question that the Legislative Branch is
comprehensively subject to the regulatory and enforcement scheme
regarding disposal of solid waste.
Subsection (a) of section 6971 regarding employee
protection states:
No person shall fire, or in any other way
discriminate against, or cause to be fired or discriminated against,
any employee or any authorized representative of employees by
reason of the fact that such employee or representative has filed,
instituted, or caused to be filed or instituted any proceeding
under this chapter or under any applicable implementation plan,
or has testified or is about to testify in any proceeding resulting
from the administration or enforcement of the provisions of this
chapter or of any applicable implementation plan.
We are of the opinion that all such entities
in the Legislative Branch are already liable under the whistle blower
provision in section 6971(a), and that Executive Branch enforcement
procedures currently apply to the Legislative Branch of government.
Therefore, we recommend that the employee protective
provisions in section 6971(a) be placed within the CAA, and applied
to all covered employees, including employees of the General Accounting
Office, Government Printing Office, and Library of Congress.
(6) 42 U.S.C. 7622 - Air Pollution
Section 7622 is a portion of Chapter 85 of Title
42, entitled “Air Pollution Prevention and Control.”
The waiver of sovereign immunity in Chapter
85 is found at section 7418(a):
Each department, agency, and instrumentality
of the executive, legislative, and judicial branches of the Federal
Government (1) having jurisdiction over any property or facility
or (2) engaged in any activity resulting, or which may result,
in the discharge of air pollutants, and each officer, agent, or
employee thereof, shall be subject to, and comply with, all Federal
... requirements, administrative authority, and process and sanctions
respecting the control and abatement of air pollution in the same
manner, and to the same extent as any nongovernmental entity.
The preceding sentence shall apply (A) to any requirement whether
substantive or procedural..., (C) to the exercise of any Federal,
State, or local administrative authority, and (D) to any process
and sanction, whether enforced in Federal, State, or local courts,
or in any other manner. This subsection shall apply notwithstanding
any immunity of such agencies, officers, agents, or employees
under any rule of law....
The broad and imperative tone of this waiver
provision stems, at least in part, from actions Congress took in
1977 to reverse the effect of the Supreme Court’s decision
in Hancock v. Train, 426 U.S. 167,
96 S. Ct. 2006 (1976). There the Court determined, with regard to
State enforcement of air quality requirements, that while the earlier
version of section 7418(A) required Federal entities to meet all
required “standards,” there was no immunity waiver sufficient
to permit such entities to be subjected to State enforcement procedures.
PL 95-96, section 116(a) added the language to subsection (a) of
section 7418 enumerating the legal and administrative areas to which
the compliance requirements apply and directing that agencies, officers,
agents, and employees not be immune from regulatory control. That
amended language also includes all Federal substantive and procedural
requirements.
Section 7622(a) states:
No employer may discharge any employee or
otherwise discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of employment because
the employee (or any person acting pursuant to a request of the
employee) - (1) commenced, caused to be commenced, or is about
to commence or cause to be commenced a proceeding under this chapter
or a proceeding for the administration or enforcement of any requirement
imposed under this chapter or under any applicable implementation
plan, (2) testified or is about to testify in any such proceeding,
or (3) assisted or participated, or is about to assist or participate
in any manner in such a proceeding or in any other action to carry
out the purposes of this chapter.
Since the Legislative Branch is subjected to
the regulatory requirements of section 7418, the Department of Labor
enforces the section 7622 whistle blower protections in the Legislative
Branch.
Because the underlying regulatory statute clearly
applies to the Legislative Branch, we recommend that the employee
protective provisions of section 7622(a) be applied to all covered
employees under the CAA, including the employees of the General
Accounting Office, Government Printing Office, and Library of Congress.
(7) 42 U.S.C. 9610: CERCLA – Current
Enforcement Authority
Section 9610 of Title 42 is part of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), which generally addresses the process and responsibility
for cleanup of hazardous material releases. The bulk of CERCLA is
codified as Chapter 103 of Title 42. Section 9610(a) states:
No person shall fire or in any other way
discriminate against, or cause to be fired or discriminated against,
any employee or any authorized representative of employees by
reason of the fact that such employee or representative has provided
information to a State or to the Federal Government, filed, instituted,
or caused to be filed or instituted any proceeding under this
chapter, or has testified or is about to testify in any proceeding
resulting from the administration or enforcement of the provisions
of this chapter.
Section 9620 covers the subject of applicability
of Chapter 103 to Federal facilities. Subsection (a)(1) states:
Each department, agency, and instrumentality
of the United States (including the executive, legislative, and
judicial branches of government) shall be subject to, and comply
with, this chapter in the same manner and to the same extent,
both procedurally and substantively, as any nongovernmental entity,
including liability under section 9607 of this title. Nothing
in this section shall be construed to affect the liability of
any person or entity under sections 9606 and 9607 of this title.
The breadth and application of this broad waiver
was discussed by the D.C. Circuit in East
Bay Municipality Utility District v. U.S. Dep’t. of Commerce
142 F3d 479 (D.C. Cir. 1998).5 There, the Circuit Court
concluded that “CERCLA abrogates state and local government
immunity in terms virtually identical to the waiver of federal immunity,
see 42 U.S.C. § 9601(20)(D) ...” 142 F3d, at 484. The
Court reached a conclusion that the CERCLA waiver is broad, clearly
encompassing the Federal Government’s three branches, based
in part upon the fact that:
[A]lthough the precise meaning of §
9260(a)(1)’s waiver language was not directly before the
[Supreme] Court in [Pennsylvania v.] Union Gas Co., 491 U.S. 1,
109 S. Ct. 2273 ... [1989], it characterized § 9601(20)(D),
the almost identically worded provision subjecting states to liability,
as “unequivoca[l]” and “unqualified,”
491 U.S. at 10, 109 S Ct at 2279, indicating that the statute’s
most authoritative reader may not be inclined to view the waiver
as hedged by unwritten exceptions.
Id. Therefore,
the Board recommends that the employee protection provision at section
9610(a) be applied to all covered employees under the CAA, including
those of the General Accounting Office, Government Printing Office,
and Library of Congress.
(C) These environmental “whistle
blower” rights are currently all enforced through the same
administrative tribunal in the Department of Labor
The administrative enforcement process for each
of these employee protection provisions utilizes the same tribunal
within the Department of Labor: the Administrative Review Board
(ARB). Recently, in Florida v. United States,
133 F.Supp.2d 1280 (N.D.Fla. 2001), the District Court described
the DOL procedure as follows:
Congress has included
“whistle blower” provisions in the six environmental
statutes at issue in this case: the Clean Air Act, the Water Pollution
Control Act, the Toxic Substances Control Act, the Safe Drinking
Water Act, the Solid Waste Disposal Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”)....
Each of the whistle blower provisions ... authorizes an employee
who believes he has been fired or discriminated against in violation
of these provisions to file a complaint with the Secretary of
Labor. Each statute requires the Secretary to investigate any
such complaint, including by affording the parties an opportunity,
upon request, to present evidence at a public hearing. If the
Secretary finds a violation, the Secretary may order appropriate
relief, including reinstatement of a wrongfully fired employee,
with compensation. Any such decision of the Secretary is subject
to judicial review and, if upheld, may be enforced through an
action brought by the Secretary in the appropriate District Court.
[133 F. Supp.2d, at 1282-3, footnotes omitted.]
The Energy Reorganization Act provision (42 U.S.C.
5851) is also governed by the same procedure. The regulations implementing
this process are set out at 29 C.F. R. 24.1 et seq. These regulations
provide that an ALJ issue a recommended decision in each matter,
which becomes final unless a party files a request for review with
the Administrative Review Board. The ARB issues the final administrative
decision of the Secretary. Therefore, all current enforcement of
these employee protection provisions lies within the Executive Branch.
To eliminate the separation of powers conflict
inherent in this enforcement procedure, and as noted in our Report,
the Board of Directors makes the following recommendations:
(D) Recommendation for transfer of enforcement
authority
- Because the Toxic Substances Control
Act itself does not apply to the Legislative Branch, the Board
does not recommend that the employee protection provision of 15
U.S.C. 2622 be made applicable to the Legislative Branch, except
that section 2622 whistle blower coverage should be applied to
all covered employees, including those of the General Accounting
Office, Library of Congress, and all employees of the Government
Printing Office, solely with regard to the lead-based paint requirements
set out at section 2688 of Title 15.
- The remaining statutes, those involving Solid
Waste (42 U.S.C. 6971) Clean Water (33 U.S.C. 1367), Safe Drinking
Water (42 U.S.C. 300j-9(i)), Atomic Energy (42 U.S.C. 5851), Air
Pollution (42 U.S.C. 7622), and CERCLA (42 U.S.C. 9610), are already
applied to the Legislative Branch through the Labor Department.
We recommend that these provisions be brought under the CAA enforcement
scheme, and that their application to the General Accounting Office,
Government Printing Office, and Library of Congress be reflected
in the CAA, as well.
- We recommend that complaints under these
provisions be processed pursuant to the procedure outlined in
section 401 of the Act (2 U.S.C. 1401).
__________
- END -
Office of Compliance:
Room LA-200, John Adams Building
110 Second Street S.E.
Washington, D.C. 20540-1999
www.compliance.gov
202-724-9250 Telephone
202-724-9260 24-hour Recorded Information Line
202-426-1912 TDD
202-426-1913 FAX
2002 Section 102(b) Report Prepared
By:
William W. Thompson II
Executive Director
Alma R. Candelaria
Deputy Executive Director for the House
of Representative
Paul Coran
Deputy Executive Director for the Senate
Teresa James
Director of Counseling
Jonathan J. Orr
Communications and Legislative Affairs
All Office of Compliance Material
is Available in Alternative Formats Upon Request
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