1. Application of Federal Laws.

Recommendation: The Congress should ensure that it is subject to laws relating to terms and conditions of employment including anti-discrimination laws. The following statutes shall be directly applied to the legislative branch and its employees: (1) The Fair Labor Standards Act of 1938, (2) Title VII of the Civil Rights Act of 1964, (3) Sections 102 through 104 of the Americans With Disabilities Act of 1990, (4) Section 15 of the Age Discrimination in Employment Act of 1967, and (5) The Family and Medical Leave Act of 1993. Subject to the study and regulation authorities granted to the proposed Office of Compliance (see recommendation 33), the Congress should also apply remaining statutes to the legislative branch and its employees concerning the terms and conditions of employment, protection from discrimination in employment, and matters affecting the health and safety of employees.

According to this Act, the following laws will be directly applied to congressional employees: the Fair Labor Standards Act, Title VII of the Civil Rights Act, Sections 102-104 of the Americans With Disabilities Act, Section 15 of the Age Discrimination in Employment Act, and the Family and Medical Leave Act of 1993. Currently the coverage of these laws varies widely. A newly-created Office of Compliance will study how to apply these laws, and issue regulations for applying the laws to Congress. These regulations will be considered as a concurrent resolution and will take effect following congressional approval under a fast-track procedure.

The Office of Compliance also will study whether to apply provisions of other Federal laws to congressional employees. These additional recommendations will deal with such issues as the terms and conditions of employment of congressional staff, conditions from discrimination in employment, and employee health and safety issues. The study will set forth such additional protections and enforcement procedures as the Director recommends, and these additional coverages also will be considered under a legislative fast-track process.

The Office of Compliance will conduct a separate study of the application of Federal laws to congressional instrumentalities (including the Library of Congress, GAO, and OTA). If as result of the study the Office determines that one or more laws should apply, it may issue regulations for coverage. The Office may also designate an appropriate enforcement mechanism for these regulations. Support agency personnel could be covered by the same enforcement procedures developed for House, Senate, and Architect of the Capitol employees. Alternatively, the support agencies might be charged with developing their own enforcement mechanisms, subject to standards set by the Congress.

This recommendation assures that congressional employees will be protected immediately by many laws that cover workers elsewhere. It also assures a comprehensive review of other work force protection laws and carefully considered procedures for bringing employees of the House and Senate and the congressional instrumentalities under appropriate coverage.

2. Office of Compliance.

Recommendation: For purposes of compliance with Federal statutes, the Congress should establish a bicameral Office of Compliance.

An Office of Compliance is to be established within the legislative branch. The Office will have a Board of Directors, consisting of eight individuals jointly appointed by the Speaker of the House, the majority leader of the Senate, and the minority leaders of the House and the Senate. The Board will provide overall policy guidance.

The head of the Office, the Director, also will be appointed by the joint leadership. In addition to ensuring compliance with the laws, the Director will have several duties. They include:

1. studying how to apply certain labor laws to Congress, and whether to apply provisions of other Federal laws to congressional employees;

2. conducting a separate study of compliance issues relating to employees of congressional instrumentalities (including the Library of Congress, GAO, OTA, and GPO);

3. adopting procedural rules for the Office, including hearing boards, which are to be published in the Congressional Record ;

4. investigating complaints;

5. educating congressional employers in their new responsibilities and congressional staff about their new rights guarantees;

6. collecting demographic data on employees to gauge compliance.

A single Office of Compliance will assure uniform coverage of employees whether working in the House, Senate, or Architect's Office. A bipartisan and bicameral appointment process for Board Members and the Director seeks to ensure that they are adequately insulated from political pressures in their application of the laws and in the ultimate supervision of the enforcement process. Having the Office investigate complaints will reinforce the separation of powers. Collecting data on the composition of congressional staff is a necessary first step toward documenting a bias-free work environment. No such data are currently compiled.

3. Procedure for Consideration of Alleged Violations.

Recommendation: The present system for consideration of alleged violations of fair employment, civil rights, and discrimination statutes, rules, and regulations should be reformed. Such a reformed system should include the use of independent hearing officers who are not employees of the legislative branch and recourse by an aggrieved party to Federal appellate judicial review.

It is recommended that there be a four-step procedure for the consideration of alleged violations of applicable laws to consist of counseling, mediation, formal complaint and administrative hearing, and judicial review.

Aggrieved employees may within 180 days of an alleged violation request counseling through the Office of Compliance. At the employee's request, counseling is followed by a mediation period, during which the Office, the employee, and the employing office meet separately or jointly for the purpose of resolving the dispute.

Within 30 days of notice of the end of mediation, the congressional employee may file a formal complaint with the Office which shall be heard by a three-member independent Board of hearing officers selected by the Director from among experienced adjudicators and arbitrators recommended by the Federal Mediation and Conciliation Service and similar professional organizations. All hearings are in closed session and on the record with reasonable prehearing discovery permitted at the Board's discretion. The Board may authorize subpoenas for attendance of witnesses and the production of documents, under a specified enforcement procedure.

Within 45 days of the conclusion of hearings, the Board transmits its decision to the employee and employing office, together with a written statement of its reasoning, which also shall be made available to the public. The decision includes appropriate remedies for any violations found but neither House nor Senate Members personally, nor their committee or personal office accounts, may be made liable for payment of compensation. Monetary relief of this nature instead will be satisfied from a separate fund established in each Chamber for that purpose. No punitive damages may be awarded. At the request of the employee or Member, the Board decision may be reviewed by the Director, who within 60 days is to affirm, reverse, or remand the matter for further consideration.

Any aggrieved congressional employee or any House or Senate Member aggrieved by a final decision of the Office may seek judicial review before the United States Court of Appeals for the Federal Circuit, which is to decide all relevant questions of law and interpret constitutional and statutory provisions. The standard of review requires the court to set aside any final decision that it finds to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law, (2) not made consistent with required procedures, or (3) unsupported by substantial evidence. Attorneys fees may be allowed a prevailing congressional employee.

This four-step procedure would be the sole means of redress for aggrieved employees. Reprisals against congressional employees for exercising their rights under these provisions may be the basis of a complaint subject to the foregoing procedures and remedies. Also, complaints may be withdrawn subject to approval by the Director of the Office of Compliance.

Generally, all counseling, mediation, and hearings are ``strictly confidential,'' except for disclosures required for purposes of judicial review or for access to the House Committee on Standards of Official Conduct and the Senate Select Committee on Ethics.

These provisions establish a uniform procedure for fair treatment of employees with complaints. The process is constructed to have expressed intermediate deadlines so that processing grievances does not take excessively long. There is also some flexibility brought into the process, to allow for the exploration of a less formal resolution to the complaint. A satisfactory resolution of a complaint through informal agreement ought to be permitted; it saves the time of compliance office staff and prevents unnecessary drains on limited resources.

Allowing judicial remedies assures that congressional staff and their employers are treated comparably to those in the executive branch and private sector. Also, safeguards against retaliation extend to Congress the same protections that the Congress has long attempted to assure executive branch employees who bring charges of illegality or malfeasance.