Implementation of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002-Reporting & Best Practices

AGENCY:

Office of Personnel Management.

ACTION:

Proposed rule.

SUMMARY:

The Office of Personnel Management (OPM) is proposing regulations to carry out the reporting and best practices requirements of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act). The No FEAR Act requires Federal agencies to report annually on certain topics related to Federal antidiscrimination and whistleblower protection laws. The No FEAR Act also requires a comprehensive study to determine the Executive Branch's best practices concerning disciplinary actions against employees for conduct that is inconsistent with these laws. This proposed rule will implement the reporting and best practices provisions of the No FEAR Act.

DATES:

Comments must be received on or before March 27, 2006.

ADDRESSES:

Send or deliver written comments to Ana A. Mazzi, Deputy Associate Director for Workforce Relations and Accountability Policy, Office of Personnel Management, Room 7H28, 1900 E Street NW., Washington, DC, 20415; by FAX at (202) 606-2613; or by e-mail at NoFEAR@opm.gov.

FOR FURTHER INFORMATION CONTACT:

Gary D. Wahlert by telephone at (202) 606-2930; by FAX at (202) 606-2613; or by e-mail at NoFEAR@opm.gov.

SUPPLEMENTARY INFORMATION:

The United States and its citizens are best served when the Federal workplace is free of discrimination and retaliation. In order to maintain a productive workplace that is fully engaged with the many important missions before the Government, it is essential that the rights of employees, former employees and applicants for Federal employment under antidiscrimination and whistleblower protection laws be protected and that agencies that violate these rights be held accountable. Congress has found that agencies cannot be run effectively if those agencies practice or tolerate discrimination. Furthermore, Congress has found that requiring Federal agencies to provide annual reports on discrimination, whistleblower, and retaliation cases should enable Congress to improve its oversight of compliance by agencies with laws covering these types of cases. Finally, Congress has required that the President or his designee conduct a study of discipline taken against Federal employees for conduct that is inconsistent with Federal antidiscrimination and whistleblower protection laws. The results of this study are then to be used to develop advisory guidelines that Federal agencies may follow to take such disciplinary actions. Congress entrusted the President with the authority to promulgate rules to carry out this title, and the President in turn delegated to OPM the authority to issue proposed regulations to implement the annual reporting and best practices provisions of Title II of the Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Public Law 107-174. These proposed regulations carry out that authority.

Reporting Obligations

Section 203 of the No FEAR Act requires Federal agencies to create annual reports on a number of items concerning Federal antidiscrimination and whistleblower protection laws as defined in section 201 of 5 CFR part 724. The reports are to be submitted to Congress, the Equal Employment Opportunity Commission, the Attorney General, and OPM. These regulations describe the required content and time line for the reports. Agencies are required to include in their first reports a one-time submission of five years of historical data, to the extent the data is available.

The regulations call on agencies to report on numbers and types of disciplinary actions they have taken against their employees for conduct that is inconsistent with these laws. For purposes of these regulations, we propose to define “discipline” to include a range of actions that might be taken from reprimands through adverse actions such as removals and reductions in grade. This range reflects the types of actions that adjudicators and neutrals (mediators or others) have considered to be elements of an employee's past disciplinary record for purposes of determining the appropriateness of a penalty in an appeal of a subsequent disciplinary action. In addition, OPM is considering expanding the range of disciplinary actions reported to include unwritten actions such as oral admonishments. Consequently, OPM requests that respondents include in their comments any views as to whether unwritten actions, such as oral admonishments should be reported under the No FEAR Act.

The regulations also require that agencies discuss in detail their policies for taking appropriate disciplinary action(s) against their employees for conduct that is inconsistent with Federal antidiscrimination and whistleblower protection laws. This information, in turn, will assist OPM in conducting a comprehensive study of the best practices in the Executive Branch for taking appropriate disciplinary actions for conduct that is inconsistent with these laws.

Agencies are also required by the regulations to report the amounts reimbursed to the Judgment Fund for payments made in connection with litigation in Federal court about alleged violations of Federal antidiscrimination and whistleblower protection laws. To the extent such payments are made as part of a settlement agreement, those payments alone, and absent any other information, should not be construed as an admission of wrong-doing by any party to the proceedings.

The regulations require reporting the dollar amounts involved, including a category for attorneys' fees where such fees are separately designated. Agencies are also required to discuss any adjustments to their agencies' budgets needed to meet their obligations to reimburse the Fund.

Finally, the regulations note that the reports are due 180 days after the end of each fiscal year. The first reports under the No FEAR Act were due on March 30, 2005, based on the express terms of the statute and without regard to the status of the regulations. Thereafter, under the terms of the statute, these reports are due annually on March 30th. We recognize that many agencies already have submitted their reports based on their interpretations of the Act. In those cases, within 60 calendar days after the regulations become final, agencies will need to compare their reports with the regulations, supplement their earlier reports as necessary, and submit the supplemental information to the agencies receiving the annual reports, including OPM. Any such supplemental information would be due within 60 calendar days after the regulations become final. Agencies submitting supplemental reports must cover the data elements described in section 302(a)(1-8)(9 is excluded) of the regulations. Agencies submitting their reports after these regulations become final and any future reports must cover all data elements described in section 302(a). In all cases, agencies' first reports (and/or supplements) would cover information as of September 30, 2004. In addition, agencies that submitted reports before these regulations became final must submit copies of the entire reports to OPM within 60 calendar days after the regulations become final.

Best Practices

Section 204 of the No FEAR Act requires that the President or his designee issue rules to require a comprehensive study of the Executive Branch to determine the best practices concerning appropriate disciplinary actions agencies take against their employees for conduct that is inconsistent with Federal antidiscrimination and whistleblower protection laws. The Act also requires the President or his designee to develop advisory guidelines based on this study that agencies can follow in taking appropriate disciplinary actions in such circumstances.

The regulations establish that the comprehensive study will be conducted by OPM. OPM welcomes comments on what and how performance should be measured to determine the effectiveness of agency disciplinary actions subject to the No FEAR Act. The regulations also provide that, as part of the study, OPM will review what agencies submit in their first reports under section 302 of the regulation. These regulations call for agencies to describe in detail their policies for taking disciplinary actions against employees for conduct that is inconsistent with the above laws.

Finally, the regulations state that OPM will issue advisory guidelines to agencies on best practices they may follow in taking such disciplinary actions. Congress requires that agencies state specifically and in detail the extent to which they will follow the guidelines. The regulations require that these statements be in writing and state the extent to which the agency expects to implement the guidelines and the reasons for the stated degree of implementation. These statements must be submitted to Congress, the Attorney General, the Equal Employment Opportunity Commission, and OPM within 30 working days from the date OPM issues the advisory guidelines.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulations pertain only to Federal employees and agencies.

E.O. 12866—Regulatory Review

This proposed rule has been reviewed by the Office of Management and Budget under Executive Order 12866.

E.O. 13132

This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

E.O. 12988—Civil Justice Reform

This regulation meets the applicable standard set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This action pertains to agency management, personnel and organization and does not substantially affect the rights of obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 5 CFR Part 724

• Administrative practice and procedure
• Civil rights
• Claims

Accordingly, OPM proposes to amend part 724, title 5, Code of Federal Regulations, as follows:

PART 724—IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002

1. In § 724.102 of subpart A, add a new definition for discipline in alphabetical order to read as follows:

Subpart C—Annual Report

Subpart D—Best Practices