Department of Labor Accountability Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 2190 To improve accountability of senior officials and other supervisory employees of the Department of Labor. IN THE HOUSE OF REPRESENTATIVES APRIL 9, 2019 Mr. SMUCKER (for himself and Mr. ROONEY of Florida) introduced the fol- lowing bill; which was referred to the Committee on Education and Labor, and in addition to the Committee on Oversight and Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the com- mittee concerned A BILL To improve accountability of senior officials and other supervisory employees of the Department of Labor. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Department of Labor Accountability Act of 2019’’. 5 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 2 •HR 2190 IH SEC. 2. SENIOR EXECUTIVES: REMOVAL, DEMOTION, OR 1 SUSPENSION BASED ON PERFORMANCE OR 2 MISCONDUCT. 3 (a) AUTHORITY.—The Secretary may, as provided in 4 this section, reprimand or suspend, involuntarily reassign, 5 demote, or remove a covered employee from a senior exec- 6 utive position at the Department if the Secretary deter- 7 mines that the misconduct or performance of the covered 8 employee warrants such action. If the Secretary so re- 9 moves such an individual, the Secretary may remove the 10 individual from the civil service (as defined in section 2101 11 of title 5, United States Code). 12 (b) RIGHTS AND PROCEDURES.— 13 (1) RIGHTS.—A covered employee who is the 14 subject of an action under subsection (a) is entitled 15 to— 16 (A) advance notice of the action and a file 17 containing all evidence in support of the pro- 18 posed action; 19 (B) be represented by an attorney or other 20 representative of the covered employee’s choice; 21 and 22 (C) grieve the action in accordance with an 23 internal grievance process that the Secretary, in 24 consultation with the Whistleblower Protection 25 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 3 •HR 2190 IH Ombudsman, shall establish for purposes of this 1 subsection. 2 (2) TIMING.— 3 (A) The aggregate period for notice, re- 4 sponse, and decision on an action under sub- 5 section (a) may not exceed 15 business days. 6 (B) The period for the response of a cov- 7 ered employee to a notice under paragraph 8 (1)(A) of an action under subsection (a) shall 9 be 7 business days. 10 (C) A decision under this paragraph on an 11 action under subsection (a) shall be issued not 12 later than 15 business days after notice of the 13 action is provided to the covered individual 14 under paragraph (1)(A). The decision shall be 15 in writing, and shall include the specific reasons 16 therefor. 17 (D) The Secretary shall ensure that the 18 grievance process established under paragraph 19 (1)(C) takes fewer than 21 days. 20 (3) FINALITY.—A decision under this sub- 21 section (a) that is not grieved, and a grievance deci- 22 sion under paragraph (2)(D), shall be final and con- 23 clusive. 24 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 4 •HR 2190 IH (4) JUDICIAL REVIEW.—A covered employee ad- 1 versely affected by a decision under subsection (a) 2 that is not grieved, or by a grievance decision under 3 paragraph (2)(D), may obtain judicial review of such 4 decision. 5 (5) ACTION OF THE COURT.—In any case in 6 which judicial review is sought under paragraph (4), 7 the court shall review the record and may set aside 8 any Department action found to be— 9 (A) arbitrary, capricious, an abuse of dis- 10 cretion, or otherwise not in accordance with a 11 provision of law; 12 (B) obtained without procedures required 13 by a provision of law having been followed; or 14 (C) unsupported by substantial evidence. 15 (c) RELATION TO OTHER PROVISIONS OF LAW.— 16 Section 3592(b)(1) of title 5, United States Code, and the 17 procedures under section 7543(b) of such title do not 18 apply to an action under subsection (a). 19 SEC. 3. EMPLOYEES: REMOVAL, DEMOTION, OR SUSPEN- 20 SION BASED ON PERFORMANCE OR MIS- 21 CONDUCT. 22 (a) AUTHORITY.—The Secretary may remove, de- 23 mote, or suspend a covered individual who is an employee 24 of the Department if the Secretary determines the per- 25 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 5 •HR 2190 IH formance or misconduct of the covered individual warrants 1 such removal, demotion, or suspension. If the Secretary 2 so removes, demotes, or suspends such a covered indi- 3 vidual, the Secretary may— 4 (1) remove the covered individual from the civil 5 service (as defined in section 2101 of title 5, United 6 States Code); 7 (2) demote the covered individual by means of 8 a reduction in grade for which the covered individual 9 is qualified, that the Secretary determines is appro- 10 priate, and that reduces the annual rate of pay of 11 the covered individual; or 12 (3) suspend the covered individual. 13 (b) PAY OF CERTAIN DEMOTED INDIVIDUALS.— 14 (1) Notwithstanding any other provision of law, 15 any covered individual subject to a demotion under 16 subsection (a) shall, beginning on the date of such 17 demotion, receive the annual rate of pay applicable 18 to such grade. 19 (2)(A) A covered individual so demoted may not 20 be placed on administrative leave during the period 21 during which an appeal (if any) under this section 22 is ongoing, and may only receive pay if the covered 23 individual reports for duty or is approved to use ac- 24 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 6 •HR 2190 IH crued unused annual, sick, family medical, military, 1 or court leave. 2 (B) If a covered individual so demoted does not 3 report for duty or receive approval to use accrued 4 unused leave, such covered individual shall not re- 5 ceive pay or other benefits pursuant to subsection 6 (d)(5). 7 (c) PROCEDURES.— 8 (1) IN GENERAL.—(A) The aggregate period 9 for notice, response, and final decision in a removal, 10 demotion, or suspension under this section may not 11 exceed 15 business days. 12 (B) The period for the response of a covered in- 13 dividual to a notice of a proposed removal, demotion, 14 or suspension under this section shall be 7 business 15 days. 16 (C) Chapter 43 and paragraph (3) of subsection 17 (b) of section 7513 of title 5, United States Code, 18 shall apply with respect to a removal, demotion, or 19 suspension under this section. 20 (D) The procedures in this subsection shall su- 21 persede any collective bargaining agreement to the 22 extent that such agreement is inconsistent with such 23 procedures. 24 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 7 •HR 2190 IH (2) DEADLINE FOR FINAL DECISION.—The Sec- 1 retary shall issue a final decision with respect to a 2 removal, demotion, or suspension under this section 3 not later than 15 business days after the Secretary 4 provides notice, including a file containing all the 5 evidence in support of the proposed action, to the 6 covered individual of the removal, demotion, or sus- 7 pension. The decision shall be in writing and shall 8 include the specific reasons therefor. 9 (3) APPEAL TO MERIT SYSTEMS PROTECTION 10 BOARD.— 11 (A) Subject to subparagraph (B) and sub- 12 section (d), any removal or demotion under this 13 section, and any suspension of more than 14 14 days under this section, may be appealed to the 15 Merit Systems Protection Board, which shall 16 refer such appeal to an administrative judge 17 pursuant to section 7701(b)(1) of title 5. 18 (B) An appeal under subparagraph (A) of 19 a removal, demotion, or suspension may only be 20 made if such appeal is made not later than 10 21 business days after the date of such removal, 22 demotion, or suspension. 23 (d) EXPEDITED REVIEW.— 24 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 8 •HR 2190 IH (1) Upon receipt of an appeal under subsection 1 (c)(3)(A), the administrative judge shall expedite 2 any such appeal under section 7701(b)(1) of title 5, 3 United States Code, and, in any such case, shall 4 issue a final and complete decision not later than 5 180 days after the date of the appeal. 6 (2)(A) Notwithstanding section 7701(c)(1)(B) 7 of title 5, United States Code, the administrative 8 judge shall uphold the decision of the Secretary to 9 remove, demote, or suspend an employee under sub- 10 section (a) if the decision is supported by substantial 11 evidence. 12 (B) Notwithstanding title 5, United States 13 Code, or any other provision of law, if the decision 14 of the Secretary is supported by substantial evi- 15 dence, the administrative judge shall not mitigate 16 the penalty prescribed by the Secretary. 17 (3)(A) The decision of the administrative judge 18 under paragraph (1) may be appealed to the Merit 19 Systems Protection Board. 20 (B) Notwithstanding section 7701(c)(1)(B) of 21 title 5, United States Code, the Merit Systems Pro- 22 tection Board shall uphold the decision of the Sec- 23 retary to remove, demote, or suspend an employee 24 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 9 •HR 2190 IH under subsection (a) if the decision is supported by 1 substantial evidence. 2 (C) Notwithstanding title 5, United States 3 Code, or any other provision of law, if the decision 4 of the Secretary is supported by substantial evi- 5 dence, the Merit Systems Protection Board shall not 6 mitigate the penalty prescribed by the Secretary. 7 (4) In any case in which the administrative 8 judge cannot issue a decision in accordance with the 9 180-day requirement under paragraph (1), the Merit 10 Systems Protection Board shall, not later than 14 11 business days after the expiration of the 180-day pe- 12 riod, submit to Congress a report that explains the 13 reasons why a decision was not issued in accordance 14 with such requirement. 15 (5) A decision of the Merit Systems Protection 16 Board under paragraph (3) may be appealed to the 17 United States Court of Appeals for the Federal Cir- 18 cuit pursuant to section 7703 of title 5, United 19 States Code, or to any court of appeals of competent 20 jurisdiction pursuant to subsection (b)(1)(B) of such 21 section. 22 (6) The Merit Systems Protection Board may 23 not stay any removal or demotion under this section, 24 except as provided in section 1214(b) of title 5. 25 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 10 •HR 2190 IH (7) During the period beginning on the date on 1 which a covered individual appeals a removal from 2 the civil service under subsection (c) and ending on 3 the date that the United States Court of Appeals for 4 the Federal Circuit issues a final decision on such 5 appeal, such covered individual may not receive any 6 pay, awards, bonuses, incentives, allowances, dif- 7 ferentials, student loan repayments, special pay- 8 ments, or benefits related to the employment of the 9 individual by the Department. 10 (8) To the maximum extent practicable, the 11 Secretary shall provide to the Merit Systems Protec- 12 tion Board such information and assistance as may 13 be necessary to ensure an appeal under this sub- 14 section is expedited. 15 (9) If an employee prevails on appeal under this 16 section, the employee shall be entitled to backpay (as 17 provided in section 5596 of title 5, United States 18 Code). 19 (10) If an employee who is subject to a collec- 20 tive bargaining agreement chooses to grieve an ac- 21 tion taken under this section through a grievance 22 procedure provided under the collective bargaining 23 agreement, the timelines and procedures set forth in 24 subsection (c) and this subsection shall apply. 25 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 11 •HR 2190 IH (e) WHISTLEBLOWER PROTECTION.— 1 (1) In the case of a covered individual seeking 2 corrective action (or on behalf of whom corrective 3 action is sought) from the Office of Special Counsel 4 based on an alleged prohibited personnel practice de- 5 scribed in section 2302(b) of title 5, United States 6 Code, the Secretary may not remove, demote, or sus- 7 pend such covered individual under subsection (a) 8 without the approval of the Special Counsel under 9 section 1214(f) of title 5. 10 (2) In the case of a covered individual who has 11 made a whistleblower disclosure to the Whistleblower 12 Protection Ombudsman, the Secretary may not re- 13 move, demote, or suspend such covered individual 14 under subsection (a) until— 15 (A) in the case in which the Assistant Sec- 16 retary determines to refer the whistleblower dis- 17 closure under subsection (e) to an office or 18 other investigative entity, a final decision with 19 respect to the whistleblower disclosure has been 20 made by such office or other investigative enti- 21 ty; or 22 (B) in the case in which the Assistant Sec- 23 retary determines not to the refer the whistle- 24 VerDate Sep 11 2014 23:21 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2190.IH H2190 kjohnson on DSK79L0C42 with BILLS 12 •HR 2190 IH blower disclosure under such section, the Assist- 1 ant Secretary makes such determination. 2 (f) TERMINATION OF INVESTIGATIONS BY OFFICE OF 3 SPECIAL COUNSEL.— 4 (1) Notwithstanding any other provision of law, 5 the Special Counsel (established by section 1211 of 6 title 5, United States Code) may terminate an inves- 7 tigation of a prohibited personnel practice alleged by 8 an employee or former employee of the Department 9 after the Special Counsel provides to the employee 10 or former employee a written statement of the rea- 11 sons for the termination of the investigation. 12 (2) Such statement may not be admissible as 13 evidence in any judicial or administrative proceeding 14 without the consent of such employee or former em [Text truncated for display. 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