[Federal Register: February 28, 2005 (Volume 70, Number 38)]
[Proposed Rules]
[Page 9544-9546]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe05-14]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 9544]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 724
RIN 3206-AK38
Implementation of Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing
regulations to carry out the notification and training requirements of
the Notification and Federal Employees Antidiscrimination and
Retaliation Act of 2002 (No FEAR Act). This rule will implement the
notice and training provisions of the No FEAR Act.
DATES: Comments must be received on or before April 29, 2005.
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) 606-0967; or by e-mail at
NoFEAR@opm.gov.
FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202)
606-2920; 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,
Congress noted that it is essential that the rights of employees,
former employees and applicants for Federal employment under Federal
antidiscrimination, whistleblower, and retaliation laws be steadfastly
protected. Congress also stated that agencies cannot be run effectively
if those agencies practice or tolerate discrimination. Congress has
found that notification of present and former Federal employees and
applicants for Federal employment of their rights under
antidiscrimination and whistleblower laws, combined with training of
current employees, should increase Federal agency compliance with the
laws. 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
notification and training provisions of Title II of the No FEAR Act,
Pub. L. 107-174. These regulations carry out that authority.
Notification Obligations
Section 202 of the No FEAR Act requires Federal agencies to notify
their employees, former employees, and applicants for employment of
their rights and protections under Federal antidiscrimination,
whistleblower and retaliation laws. These proposed regulations
prescribe the ``time, form, and manner'' of the notice required by the
No FEAR Act, including the requirement to place the notice on each
agency's Internet Web site.
The proposed regulations provide model paragraphs that must, at a
minimum, be included in the notice. Agencies have the discretion to
insert additional provisions as they deem appropriate. Agencies must
provide the first notice within 60 days after final publication of this
rule. Thereafter, such notice must be provided by the end of each
successive fiscal year and remain posted until replaced or revised to
help ensure that employees are kept informed of their rights and
protections against discrimination and/or retaliation. After the
initial notice deadline, new employees will be given notice during each
agency's new employee orientation session(s) or, in the absence of such
a program, within 60 days of the individual's appointment.
The notice requires language that agencies retain the right, where
appropriate, to discipline a Federal employee who has engaged in
discriminatory or retaliatory conduct, up to and including removal. It
also requires language that unfounded disciplinary action or violation
of the procedural rights of a Federal employee accused of
discrimination is not permitted. Another part of the notice advises
readers how to get additional information about their rights and
protections.
Training Obligations
Section 202 of the No FEAR Act also requires that Federal agencies
provide training to all their employees regarding the rights and
remedies under Federal antidiscrimination, whistleblower and
retaliation laws. The regulations propose to require all agencies to
develop written plans describing how they will meet their training
obligations under the Act. Agencies have the discretion to develop the
content and method of their own training programs. Agencies may also
consult the Equal Employment Opportunity Commission and/or the Office
of Special Counsel for information and/or assistance regarding the
agency's training program.
Recognizing the importance of the required training under the No
FEAR Act, OPM encourages all agencies to implement training programs as
soon as possible and requires all agencies to complete initial training
by the end of fiscal year 2005. Thereafter, the training must be
completed on a training cycle of no longer than every two years.
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.
[[Page 9545]]
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 or
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, Discrimination, Prohibited
personnel practices, Civil rights, Claims, Discipline.
U.S. Office of Personnel Management.
Dan G. Blair,
Acting Director.
Accordingly, OPM proposes to amend part 724 to 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. The authority citation for part 724 continues to read as
follows:
Authority: Sec. 204 of Pub. L. 107-174; Presidential Memorandum
dated July 8, 2003, ``Delegation of Authority Under Section 204(a)
of the Notification and Federal Employee Antidiscrimination Act of
2002.''
Subpart A--Reimbursement of Judgment Fund
2. In Sec. 724.102 of subpart A, add new definitions for
Antidiscrimination Laws, Notice, Training, and Whistleblower Protection
Laws in alphabetical order to read as follows:
Sec. 724.102 Definitions:
Antidiscrimination Laws refers to 5 U.S.C. 2302(b)(1), 5 U.S.C.
2302 (b)(9) as applied to conduct described in 5 U.S.C. 2302 (b)(1), 29
U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42
U.S.C. 2000e-16.
* * * * *
Notice means the written information provided by Federal agencies
about the rights and protections available under Federal
Antidiscrimination Laws and Whistleblower Protection Laws.
* * * * *
Training means the process by which Federal agencies instruct their
employees regarding the rights and remedies applicable to such
employees under the Federal Antidiscrimination Laws and Whistleblower
Protection Laws.
Whistleblower Protection Laws refers to 5 U.S.C. 2302(b)(8) or 5
U.S.C. 2302(b)(9) as applied to conduct described in 5 U.S.C.
2302(b)(8).
3. A new subpart B to Part 724 is added to read as follows:
Subpart B--Notification of Rights and Protections and Training
Sec.
724.201 Purpose and Scope.
724.202 Notice Obligations.
724.203 Training Obligations.
Sec. 724.201 Purpose and Scope.
(a) This subpart implements Title II of the Notification and
Federal Employee Antidiscrimination and Retaliation Act of 2002
concerning the obligation of Federal agencies to notify all employees,
former employees, and applicants for Federal employment of the rights
and protections available to them under the Federal Antidiscrimination
Laws and Whistleblower Protection Laws. This subpart also implements
Title II concerning the obligation of agencies to train the agencies'
employees regarding such rights and remedies. The regulations describe
agency obligations and the procedures for written notification and
training.
(b) Pursuant to section 205 of the No FEAR Act, neither that Act
nor this notice creates, expands or reduces any rights otherwise
available to any employee, former employee or applicant under the laws
of the United States, including the provisions of law specified in 5
U.S.C. 2302(d).
Sec. 724.202 Notice Obligations.
(a) Each agency must provide notice to all of its employees, former
employees, and applicants for Federal employment about the rights and
remedies available under the Antidiscrimination Laws and Whistleblower
Protection Laws applicable to them.
(b) The notice under this part must be titled ``No FEAR Act
Notice.''
(c) Each agency must provide the initial notice within sixty (60)
days after [date of final rule]. Thereafter, the notice must be
provided by the end of each successive fiscal year and remain posted
until replaced or revised.
(d) After the initial notice, each agency must provide the notice
to new employees within 60 business days of their appointment.
(e) Each agency must provide the notice in paper (e.g., letter,
poster or brochure) and/or electronic form (e.g., e-mail or internal
agency electronic site). In addition, each agency must post the notice
on their Internet web sites, in compliance with section 508 of the
Rehabilitation Act of 1973, as amended. For agencies with components
that operate Internet Web sites, the notice shall be made available by
hyperlinks from the Internet Web sites of both the component and the
parent agency. For former employees and applicants, an agency may meet
its paper and/or electronic notice obligation by publishing an annual
notice in the Federal Register.
(f) Upon request by employees, former employees and applicants,
each agency must provide the notice in alternative, accessible formats.
(g) Unless an agency is exempt from the cited statutory provisions,
the following is the minimum text to be included in the notice. Each
agency may incorporate additional information within the model
paragraphs, as appropriate.
Model Paragraphs
No Fear Act Notice
On May 15, 2002, Congress enacted the ``Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002,'' which is
now known as the No FEAR Act. One purpose of the Act is to ``require
that Federal agencies be accountable for violations of
antidiscrimination and whistleblower protection laws.'' Pub. L. 107-
174, Summary. In support of this purpose, Congress found that
``agencies cannot be run effectively if those agencies practice or
tolerate discrimination.'' Pub. L. 107-74, Title I, General
Provisions, Section 101(1).
The Act also requires this agency to provide this notice to
Federal employees, former Federal employees and applicants for
Federal employment to inform you of the rights and protections
available to you under Federal antidiscrimination, whistleblower
protection and retaliation laws.
Antidiscrimination Laws
A Federal agency cannot discriminate against an employee or
applicant with respect to the terms, conditions or privileges of
employment on the basis of race, color, religion, sex, national
origin, age, disability, marital status or political affiliation.
Discrimination on these bases is prohibited by one or more of the
following statutes: 5
[[Page 9546]]
U.S.C. 2302(b) (1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a,
29 U.S.C. 791 and 42 U.S.C. 2000e-16.
If you believe that you have been the victim of unlawful
discrimination on the basis of race, color, religion, sex, national
origin or disability, you must contact an Equal Employment
Opportunity (EEO) counselor within 45 calendar days of the alleged
discriminatory action, or, in the case of a personnel action, within
45 calendar days of the effective date of the action, before you can
file a formal complaint of discrimination with your agency. See,
e.g., 29 CFR 1614. If you believe that you have been the victim of
unlawful discrimination on the basis of age, you must either contact
an EEO counselor as noted above or give notice of intent to sue to
the Equal Employment Opportunity Commission (EEOC) within 180 days
of the alleged discriminatory action. If you are alleging
discrimination based on marital status or political affiliation, you
may file a written complaint with the U.S. Office of Special Counsel
(OSC) (see contact information below). In the alternative (or in
some cases, in addition), you may pursue a discrimination complaint
by filing a grievance through your agency's administrative or
negotiated grievance procedures, if such procedures apply and are
available.
Whistleblower Protection Laws
A Federal employee with authority to take, direct others to
take, recommend or approve any personnel action must not use that
authority to take or fail to take, or threaten to take or fail to
take, a personnel action against an employee or applicant because of
disclosure of information by that individual that is reasonably
believed to evidence violations of law, rule or regulation; gross
mismanagement; gross waste of funds; an abuse of authority; or a
substantial and specific danger to public health or safety, unless
disclosure of such information is specifically prohibited by law and
such information is specifically required by Executive order to be
kept secret in the interest of national defense or the conduct of
foreign affairs.
Retaliation against an employee or applicant for making a
protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you
believe that you have been the victim of whistleblower retaliation,
you may file a written complaint (Form OSC-11) with the U.S. Office
of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC
20036-4505 or online through the OSC Web site--http://www.osc.gov.
Retaliation for Engaging in Protected Activity
A Federal agency cannot retaliate against an employee or
applicant because that individual exercises his or her rights under
any of the Federal antidiscrimination or whistleblower protections
laws listed above. If you believe that you are the victim of
retaliation for engaging in protected activity, you must follow, as
appropriate, the procedures described in the Antidiscrimination Laws
and Whistleblower Protection Laws sections or, if applicable, the
administrative or negotiated grievance procedures in order to pursue
any legal remedy.
Disciplinary Actions
Under the existing laws, each agency retains the right, where
appropriate, to discipline a Federal employee who has engaged in
discriminatory or retaliatory conduct, up to and including removal.
If OSC has initiated an investigation under 5 U.S.C. 1214, however,
according to 5 U.S.C. 1214(f), agencies must seek approval from the
Special Counsel to discipline employees for, among other activities,
engaging in prohibited retaliation. Nothing in the No FEAR Act
alters existing laws or permits an agency to take unfounded
disciplinary action against a Federal employee or to violate the
procedural rights of a Federal employee who has been accused of
discrimination.
Additional Information
For further information regarding the No FEAR Act regulations,
refer to 5 CFR 724, as well as the appropriate offices within your
agency (e.g., EEO/civil rights office, human resources office or
legal office). Additional information regarding Federal
antidiscrimination, whistleblower protection and retaliation laws
can be found at the EEOC Web site--http://www.eeoc.gov and the OSC Web
site-- http://www.osc.gov.
Existing Rights Unchanged
Pursuant to section 205 of the No FEAR Act, neither the Act nor
this notice creates, expands or reduces any rights otherwise
available to any employee, former employee or applicant under the
laws of the United States, including the provisions of law specified
in 5 U.S.C. 2302(d).
Sec. 724.203 Training Obligations.
(a) Each agency must develop a written plan to train all of its
employees (including supervisors and managers) about the rights and
remedies available under the Antidiscrimination Laws and Whistleblower
Protection Laws applicable to them.
(b) Each agency shall have the discretion to develop the content
and method of its training plan. Each agency training plan shall
describe:
(1) The content and method of the training,
(2) The training schedule, and
(3) The means of documenting completion of training.
(c) Each agency may contact EEOC and/or OSC for information and/or
assistance regarding the agency's training program. Neither agency,
however, shall have authority under this regulation to review or
approve an agency's training plan.
(d) Each agency is encouraged to implement its training as soon as
possible, but required to complete the initial training under this
subpart for all employees (including supervisors and managers) by the
end of fiscal year 2005. Thereafter, each agency must train all
existing employees on a training cycle of no longer than every 2 years.
(e) After the initial training is completed, each agency must train
new employees as part of its agency orientation program. Any agency
that does not have a new employee orientation program must train new
employees within 60 business days of the new employees' appointment.
[FR Doc. 05-3840 Filed 2-24-05; 11:34 am]
BILLING CODE 6325-39-P