Rights for the TSA Workforce Act of 2022

IIB 117TH CONGRESS 2D SESSION H. R. 903 IN THE SENATE OF THE UNITED STATES MAY 16, 2022 Received; read twice and referred to the Committee on Commerce, Science, and Transportation AN ACT To enhance the security operations of the Transportation Security Administration and stability of the transpor- tation security workforce by applying the personnel sys- tem under title 5, United States Code, to employees of the Transportation Security Administration, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 2 HR 903 RFS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Rights for the Trans- 2 portation Security Administration Workforce Act of 3 2022’’ or the ‘‘Rights for the TSA Workforce Act of 4 2022’’. 5 SEC. 2. DEFINITIONS. 6 For purposes of this Act— 7 (1) the term ‘‘adjusted basic pay’’ means— 8 (A) the rate of pay fixed by law or admin- 9 istrative action for the position held by a cov- 10 ered employee before any deductions; and 11 (B) any regular, fixed supplemental pay- 12 ment for non-overtime hours of work creditable 13 as basic pay for retirement purposes, including 14 any applicable locality payment and any special 15 rate supplement; 16 (2) the term ‘‘Administrator’’ means the Ad- 17 ministrator of the Transportation Security Adminis- 18 tration; 19 (3) the term ‘‘appropriate congressional com- 20 mittees’’ means the Committees on Homeland Secu- 21 rity and Oversight and Reform of the House of Rep- 22 resentatives and the Committees on Commerce, 23 Science, and Transportation and Homeland Security 24 and Governmental Affairs of the Senate; 25 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 3 HR 903 RFS (4) the term ‘‘at-risk employee’’ means a 1 Transportation Security Officer, Federal Air Mar- 2 shal, canine handler, or any other employee of the 3 Transportation Security Administration carrying out 4 duties that require substantial contact with the pub- 5 lic during the COVID–19 national emergency; 6 (5) the term ‘‘conversion date’’ means the date 7 as of which subparagraphs (A) through (F) of sec- 8 tion 3(c)(1) take effect; 9 (6) the term ‘‘covered employee’’ means an em- 10 ployee who holds a covered position; 11 (7) the term ‘‘covered position’’ means a posi- 12 tion within the Transportation Security Administra- 13 tion; 14 (8) the term ‘‘COVID–19 national emergency’’ 15 means the national emergency declared by the Presi- 16 dent under the National Emergencies Act (50 17 U.S.C. 1601 et seq.) on March 13, 2020, with re- 18 spect to the coronavirus; 19 (9) the term ‘‘employee’’ has the meaning given 20 such term by section 2105 of title 5, United States 21 Code; 22 (10) the term ‘‘Secretary’’ means the Secretary 23 of Homeland Security; 24 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 4 HR 903 RFS (11) the term ‘‘TSA personnel management 1 system’’ means any personnel management system 2 established or modified under— 3 (A) section 111(d) of the Aviation and 4 Transportation Security Act (49 U.S.C. 44935 5 note); or 6 (B) section 114(n) of title 49, United 7 States Code; 8 (12) the term ‘‘TSA’’ means the Transportation 9 Security Administration; and 10 (13) the term ‘‘2019 Determination’’ means the 11 publication, entitled ‘‘Determination on Transpor- 12 tation Security Officers and Collective Bargaining’’, 13 issued on July 13, 2019, by Administrator David P. 14 Pekoske, as modified, or any superseding subsequent 15 determination. 16 SEC. 3. CONVERSION OF TSA PERSONNEL. 17 (a) RESTRICTIONS ON CERTAIN PERSONNEL AU- 18 THORITIES.— 19 (1) IN GENERAL.—Notwithstanding any other 20 provision of law, and except as provided in para- 21 graph (2), effective as of the date of the enactment 22 of this Act— 23 (A) any TSA personnel management sys- 24 tem in use for covered employees and covered 25 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 5 HR 903 RFS positions on the day before such date of enact- 1 ment, and any TSA personnel management pol- 2 icy, letter, guideline, or directive in effect on 3 such day may not be modified; 4 (B) no TSA personnel management policy, 5 letter, guideline, or directive that was not estab- 6 lished before such date issued pursuant to sec- 7 tion 111(d) of the Aviation and Transportation 8 Security Act (49 U.S.C. 44935 note) or section 9 114(n) of title 49, United States Code, may be 10 established; and 11 (C) any authority to establish or adjust a 12 human resources management system under 13 chapter 97 of title 5, United States Code, shall 14 terminate with respect to covered employees 15 and covered positions. 16 (2) EXCEPTIONS.— 17 (A) PAY.—Notwithstanding paragraph 18 (1)(A), the limitation in that paragraph shall 19 not apply to any TSA personnel management 20 policy, letter, guideline, or directive related to 21 annual adjustments to pay schedules and local- 22 ity-based comparability payments in order to 23 maintain parity with such adjustments author- 24 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 6 HR 903 RFS ized under section 5303, 5304, 5304a, and 1 5318 of title 5, United States Code; and 2 (B) ADDITIONAL POLICY.—Notwith- 3 standing paragraph (1)(B), new TSA personnel 4 management policy may be issued if— 5 (i) such policy is needed to resolve a 6 matter not specifically addressed in policy 7 in effect on the date of enactment of this 8 Act; and 9 (ii) the Secretary provides such policy, 10 with an explanation of its necessity, to the 11 appropriate congressional committees not 12 later than 7 days of issuance. 13 (C) EMERGING THREATS TO TRANSPOR- 14 TATION SECURITY DURING TRANSITION PE- 15 RIOD.—Notwithstanding paragraph (1), any 16 TSA personnel management policy, letter, 17 guideline, or directive related to an emerging 18 threat to transportation security, including na- 19 tional emergencies or disasters and public 20 health threats to transportation security, may 21 be modified or established until the conversion 22 date. The Secretary shall provide to the appro- 23 priate congressional committees any modifica- 24 tion or establishment of such a TSA personnel 25 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 7 HR 903 RFS management policy, letter, guideline, or direc- 1 tive, with an explanation of its necessity, not 2 later than 7 days of such modification or estab- 3 lishment. 4 (b) PERSONNEL AUTHORITIES DURING TRANSITION 5 PERIOD.—Any TSA personnel management system in use 6 for covered employees and covered positions on the day 7 before the date of enactment of this Act and any TSA 8 personnel management policy, letter, guideline, or direc- 9 tive in effect on the day before the date of enactment of 10 this Act shall remain in effect until the conversion date. 11 (c) TRANSITION TO TITLE 5.— 12 (1) IN GENERAL.—Except as provided in para- 13 graph (2), effective as of the date determined by the 14 Secretary, but in no event later than December 31, 15 2022— 16 (A) the TSA personnel management sys- 17 tem shall cease to be in effect; 18 (B) section 114(n) of title 49, United 19 States Code, is repealed; 20 (C) section 111(d) of the Aviation and 21 Transportation Security Act (49 U.S.C. 44935 22 note) is repealed; 23 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 8 HR 903 RFS (D) any TSA personnel management pol- 1 icy, letter, guideline, and directive, including the 2 2019 Determination, shall cease to be effective; 3 (E) any human resources management sys- 4 tem established or adjusted under chapter 97 of 5 title 5, United States Code, with respect to cov- 6 ered employees or covered positions shall cease 7 to be effective; and 8 (F) covered employees and covered posi- 9 tions shall be subject to the provisions of title 10 5, United States Code. 11 (2) CHAPTERS 71 AND 77 OF TITLE 5.—Not 12 later than 90 days after the date of enactment of 13 this Act— 14 (A) chapter 71 and chapter 77 of title 5, 15 United States Code, shall apply to covered em- 16 ployees carrying out screening functions pursu- 17 ant to section 44901 of title 49, United States 18 Code; and 19 (B) any policy, letter, guideline, or direc- 20 tive issued under section 111(d) of the Aviation 21 and Transportation Security Act (49 U.S.C. 22 44935 note) related to matters otherwise cov- 23 ered by such chapter 71 or 77 shall cease to be 24 in effect. 25 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 9 HR 903 RFS (3) ASSISTANCE OF OTHER AGENCIES.—Not 1 later than 180 days after the date of enactment of 2 this Act or December 31, 2022, whichever is ear- 3 lier— 4 (A) the Office of Personnel Management 5 shall establish a position series and classifica- 6 tion standard for the positions of Transpor- 7 tation Security Officer, Federal Air Marshal, 8 Transportation Security Inspector, and other 9 positions requested by the Administrator; and 10 (B) the Department of Agriculture’s Na- 11 tional Finance Center shall make necessary 12 changes to its Financial Management Services 13 and Human Resources Management Services to 14 ensure payroll, leave, and other personnel proc- 15 essing systems for TSA personnel are commen- 16 surate with chapter 53 of title 5, United States 17 Code, and provide functions as needed to imple- 18 ment this Act. 19 (d) SAFEGUARDS ON GRIEVANCES AND APPEALS.— 20 (1) IN GENERAL.—Each covered employee with 21 a grievance or appeal pending within TSA on the 22 date of the enactment of this Act or initiated during 23 the transition period described in subsection (c) shall 24 have the right to have such grievance or appeal re- 25 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 10 HR 903 RFS moved to proceedings pursuant to title 5, United 1 States Code, or continued within the TSA. 2 (2) AUTHORITY.—With respect to any griev- 3 ance or appeal continued within the TSA pursuant 4 to paragraph (1), the Administrator may consider 5 and finally adjudicate such grievance or appeal not- 6 withstanding any other provision of this Act. 7 (3) PRESERVATION OF RIGHTS.—Notwith- 8 standing any other provision of law, any appeal or 9 grievance continued pursuant to this section that is 10 not finally adjudicated pursuant to paragraph (2) 11 shall be preserved and all timelines tolled until the 12 rights afforded by application of chapters 71 and 77 13 of title 5, United States Code, are made available 14 pursuant to section 3(c)(2) of this Act. 15 SEC. 4. TRANSITION RULES. 16 (a) NONREDUCTION IN PAY AND COMPENSATION.— 17 Under pay conversion rules as the Secretary may prescribe 18 to carry out this Act, a covered employee converted from 19 a TSA personnel management system to the provisions of 20 title 5, United States Code, pursuant to section 21 3(c)(1)(F)— 22 (1) shall not be subject to any reduction in ei- 23 ther the rate of adjusted basic pay payable or law 24 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 11 HR 903 RFS enforcement availability pay payable to such covered 1 employee; and 2 (2) shall be credited for years of service in a 3 specific pay band under a TSA personnel manage- 4 ment system as if the employee had served in an 5 equivalent General Schedule position at the same 6 grade, for purposes of determining the appropriate 7 step within a grade at which to establish the employ- 8 ee’s converted rate of pay. 9 (b) RETIREMENT PAY.—Not later than 90 days after 10 the date of enactment of this Act, the Secretary shall sub- 11 mit to the appropriate congressional committees a pro- 12 posal, including proposed legislative changes if needed, for 13 determining a covered employee’s average pay for pur- 14 poses of calculating the employee’s retirement annuity, 15 consistent with title 5, United States Code, for any cov- 16 ered employee who retires within three years of the conver- 17 sion date, in a manner that appropriately accounts for 18 time in service and annual rate of basic pay following the 19 conversion date. 20 (c) LIMITATION ON PREMIUM PAY.—Notwith- 21 standing section 5547 of title 5, United States Code, or 22 any other provision of law, a Federal Air Marshal or crimi- 23 nal investigator hired prior to the date of enactment of 24 this Act may be eligible for premium pay up to the max- 25 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 12 HR 903 RFS imum level allowed by the Administrator prior to the date 1 of enactment of this Act. The Office of Personnel Manage- 2 ment shall recognize such premium pay as fully creditable 3 for the purposes of calculating pay and retirement bene- 4 fits. 5 (d) PRESERVATION OF LAW ENFORCEMENT AVAIL- 6 ABILITY PAY AND OVERTIME PAY RATES FOR FEDERAL 7 AIR MARSHALS.— 8 (1) LEAP.—Section 5545a of title 5, United 9 States Code, is amended by adding at the end the 10 following: 11 ‘‘(l) The provisions of subsections (a)–(h) providing 12 for availability pay shall apply to any Federal Air Marshal 13 who is an employee of the Transportation Security Admin- 14 istration.’’. 15 (2) OVERTIME.—Section 5542 of such title is 16 amended by adding at the end the following: 17 ‘‘(i) Notwithstanding any other provision of law, a 18 Federal Air Marshal who is an employee of the Transpor- 19 tation Security Administration shall receive overtime pay 20 under this section, at such a rate and in such a manner, 21 so that such Federal Air Marshal does not receive less 22 overtime pay than such Federal Air Marshal would receive 23 were that Federal Air Marshal subject to the overtime pay 24 VerDate Sep 11 2014 00:41 May 17, 2022 Jkt 000000 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H903.RFS H903 pbinns on DSKJLVW7X2PROD with $$_JOB 13 HR 903 RFS provisions of section 7 of the Fair Labor Stand [Text truncated for display. 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