HR 5873
110th CONGRESS
2d Session
H. R. 5873
To provide for a paid family and medical leave insurance program,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
April 22, 2008
Mr. STARK (for himself, Mr. GEORGE MILLER of California, Ms. WOOLSEY, and
Mrs. MALONEY of New York) introduced the following bill; which was referred
to the Committee on Education and Labor, and in addition to the Committees
on Oversight and Government Reform and Ways and Means, 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 committee concerned
A BILL
To provide for a paid family and medical leave insurance program,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Family Leave Insurance Act of 2008'.
SEC. 2. CONGRESSIONAL FINDINGS.
Congress finds the following:
(1) Since its passage, the Family and Medical Leave Act of 1993 (referred
to in this section as the `FMLA') has assisted millions of employees in
balancing the demands of their jobs with their family responsibilities.
However, many eligible employees are not able to utilize the benefits of
the FMLA because FMLA leave is unpaid. According to a 2000 survey on the
FMLA by the Department of Labor, among those employees who need FMLA leave
and don't take it, 78 percent don't take it because they can't afford it.
(2) An analysis of national data from the 2000 FMLA survey by the Center
for Women and Work at Rutgers University suggests that employees suffer
severe financial hardship in order to be responsible family members and
provide minor children and aging parents with the care they need. For example,
among employees who needed to care for a seriously ill child--
(A) 42 percent took time off even though they received no pay while doing
so;
(B) 46 percent received full or partial pay during at least part of the
time off (including receiving pay for reasons such as use of vacation
time); and
(C) 12 percent could not take time off to care for the child due to lack
of pay.
(3) Americans who provide direct care for their family members prevent the
worsening of illnesses and promote strong recovery. For example, the length
of a child's stay in the hospital decreases by 31 percent when parents are
able to be present.
(4) Forty-three percent of private sector employees do not have access to
paid sick leave, as reported in the Bureau of Labor Statistics National
Compensation Survey in March 2006. Of those employees who do have paid sick
leave, many are not able to use their own sick leave to receive payment
while caring for family members who are ill.
(5) Family and medical leave benefits strengthen and support the business
sector through health care savings and increased employee retention and
productivity.
(6) Demographic changes over the past few decades have altered the face
and needs of the workforce. It is now common for both parents to be in the
workforce and for men and women to also serve as the primary caregivers
for elderly spouses or parents.
(7) According to the Bureau of the Census and the Bureau of Labor Statistics,
56 percent of women with children under age 1 are in the labor force, while
71 percent of all women with dependent children under age 18 are in the
labor force.
(8) Nearly 2/3 of Americans under the age of 60 expect to be responsible
for the care of an elderly relative in the next 10 years.
SEC. 3. GENERAL DEFINITIONS.
(a) In General- The definitions provided by section 101 of the Family and
Medical Leave Act of 1993 (29 U.S.C. 2611), other than the definitions of
the terms `eligible employee' and `employer', shall apply for purposes of
this Act.
(b) Additional Definitions- In this Act, the following additional definitions
shall apply:
(1) BOARD OF TRUSTEES- The term `Board of Trustees' means the Board of Trustees
of the Insurance Fund.
(2) COVERED AGENCY- The term `covered agency', when used with respect to
a State, means the State agency referred to in paragraph (1) of section
102(b), or the Commissioner of the Social Security Administration if the
Commissioner is carrying out the State Family and Medical Insurance Program
in the State under paragraph (2) of such section.
(3) DOMESTIC PARTNER- The term `domestic partner' means--
(A) the person recognized as the domestic partner of the employee under
any domestic partner registry or civil union laws of the State or political
subdivision of a State where the employee resides; or
(B) a same-sex spouse as determined under the applicable law of the State
or political subdivision of a State where the employee resides; or
(C) in the case of an unmarried employee who lives in a State where a
person cannot marry a person of the same sex under the laws of the State,
a single, unmarried adult person of the same sex as the employee who is
in a committed, intimate relationship with the employee, is not a domestic
partner to any other person, and who is designated to the employer by
such employee as that employee's domestic partner.
(4) INSURANCE FUND- The term `Insurance Fund' means the Family and Medical
Leave Insurance Fund established under section 301.
(5) MANAGING TRUSTEE- The term `Managing Trustee' means the Managing Trustee
of the Board of Trustees of the Insurance Fund.
TITLE I--FAMILY AND MEDICAL LEAVE INSURANCE PROGRAM
SEC. 101. PROGRAM DEFINITIONS.
(1) ELIGIBLE EMPLOYEE- The term `eligible employee' means any of the following:
(i) earned wages with a covered employer for a minimum of 6 months prior
to filing an application for leave benefits under this title; and
(ii) has been employed by the employer with respect to whom paid leave
is requested for at least 625 hours of service during the previous 6
months.
(i) of a small employer that has elected to participate in the Program
under this title in accordance with such regulations as the Secretary
shall prescribe; and
(ii) who meets the requirements of subparagraph (A), but is not an employee
of the Federal Government.
(C) A self-employed individual who has--
(i) elected to participate in the Program under this title in accordance
with such regulations as the Secretary shall prescribe;
(ii) self-employment income while a covered employer for 6 of the last
12 months prior to filing an application for leave benefits under this
title; and
(iii) paid premiums under section 1401(c) of the Internal Revenue Code
of 1986 with respect to such self-employment income.
(2) EMPLOYER-RELATED DEFINITIONS-
(A) COVERED EMPLOYER- The term `covered employer' means a person--
(II) a small employer that has elected to participate in the Program
under this title in accordance with such regulations as the Secretary
shall prescribe; or
(III) a self-employed individual who has elected to so participate;
and
(ii) that is not a voluntary plan employer.
(B) EMPLOYER- The term `employer' shall have the meaning given that term
in section 101(4) of the Family and Medical Leave Act of 1993 (29 U.S.C.
2611(4)), except that such term shall include any person who employs 2
or more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year;
(C) SMALL EMPLOYER- The term `small employer'--
(i) means any person engaged in commerce or in any industry or activity
affecting commerce who employs not less than 2 and not more than 19
employees for each working day during each of 20 or more calendar workweeks
in the current or preceding calendar year; and
(I) any person who acts, directly or indirectly, in the interest of
an employer described in clause (i) to any of the employees of such
employer;
(II) any successor in interest of an employer described in clause
(i); and
(III) any public agency, as defined in section 3(x) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(x)) that is an employer described
in clause (i) but is not an entity of the Federal Government.
(D) VOLUNTARY PLAN EMPLOYER- The term `voluntary plan employer' means
an employer for which the Secretary has approved a voluntary plan under
section 104 for the period involved.
(3) LEAVE BENEFIT- The term `leave benefit' means a family and medical leave
insurance benefit described in section 103.
(4) PROGRAM- The term `Program' means the Family and Medical Leave Insurance
Program established under section 102.
(5) VOLUNTARY PAID BENEFIT- The term `voluntary paid benefit' means a family
and medical leave insurance benefit provided under a voluntary plan approved
under section 104 for the period involved.
SEC. 102. ESTABLISHMENT OF PROGRAM.
(a) Federal Program- The Secretary of Labor shall establish a Family and Medical
Insurance Program.
(b) State Programs- In carrying out the Federal Program, the Secretary may--
(1) enter into a contract with a State under which--
(A) the State agrees to establish, and provide the benefits described
under this title in that State through a Family and Medical Insurance
Program, including expansion of a pre-existing State program; and
(B) the Secretary agrees to instruct the Managing Trustee of the Family
and Medical Leave Insurance Fund, established under section 301, to provide
funds for such benefits from the Fund; or
(2) at the request of the Governor of a State, enter into an interagency
agreement with the Commissioner of the Social Security Administration to
establish, and provide the benefits described under this title, through
a State Family and Medical Insurance Program directly in a State from funds
provided to the Commissioner by the managing trustee of the Fund;
(c) State Application- To be eligible to receive a contract under subsection
(b)(1), a State shall submit an application to the Secretary at such time,
in such manner, and containing such information as the Secretary may require.
At a minimum, the application shall include information identifying the State
agency to carry out the State Family and Medical Insurance Program.
SEC. 103. PROGRAM BENEFITS.
(a) Entitlement- Subject to subsections (b), (d), and (e), an eligible employee
of a covered employer shall be entitled to a family and medical leave insurance
benefit for a total of 12 workweeks of leave during any 12-month period for
1 or more of the following reasons:
(1) Because of the birth of a son or daughter of the employee and in order
to care for such son or daughter.
(2) Because of the placement of a son or daughter with the employee for
adoption or foster care.
(3) In order to care for a child, parent, spouse, domestic partner, grandchild,
grandparent, or sibling of the employee and who has a serious health condition.
(4) Because of a serious health condition that makes the employee unable
to perform the functions of the position of such employee.
(5) Because of any qualifying exigency (as the Secretary of Labor shall,
by regulation, determine) arising out of the fact that the spouse, or a
son, daughter, or parent of the employee is on active duty (or has been
notified of an impending call or order to active duty) in the Armed Forces
of the United States in support of a contingency operation.
(6) In order to care for a child, parent, spouse, domestic partner, grandchild,
grandparent, sibling, or next of kin of the employee who is a covered servicemember
as such term is defined in section 101(16) of the Family and Medical Leave
Act of 1993 (29 U.S.C. 2611(16)).
(b) Waiting Period- During each 12-month period described in subsection (a),
each eligible employee shall be subject to a waiting period of 5 workdays
of leave described in subsection (a) (but not more than 7 calendar days),
during which a leave benefit shall not be paid to the employee. The waiting
period shall not reduce the 12 workweeks of leave benefits available under
subsection (a).
(1) IN GENERAL- Subject to paragraph (2), an eligible employee's leave benefit
for any workday on which the employee takes leave as described in subsection
(a) shall be calculated as--
(A) in the case of an employee with an annual income of not more than
$20,000, an amount equal to 100 percent of that employee's daily earnings;
(B) in the case of an employee with an annual income of more than $20,000
and not more than $30,000, an amount equal to the greater of--
(i) 75 percent of that employee's daily earnings; or
(ii) 100 percent of the daily earnings of an employee with an annual
income of $20,000;
(C) in the case of an employee with an annual income of more than $30,000
and not more than $60,000, an amount equal to the greater of--
(i) 55 percent of that employee's daily earnings; or
(ii) 75 percent of the daily earnings of an employee with an annual
income of $30,000;
(D) in the case of an employee with an annual income of more than $60,000
and not more than $97,000, an amount equal to the greater of--
(i) 40 percent of that employee's daily earnings; or
(ii) 55 percent of the daily earnings of an employee with an annual
income of $60,000; and
(E) in the case of an employee with an annual income of more than $97,000,
an amount equal to 40 percent of the daily earnings of an employee with
an annual income of $97,000.
(2) INDEXING OF ANNUAL INCOME CATEGORIES-
(A) IN GENERAL- The Secretary shall index the annual income amounts specified
in paragraph (1) for each calendar year, using the national average wage
index, as determined under section 209(k) of the Social Security Act (42
U.S.C. 409(k)).
(B) PUBLICATION- Not later than the November 1 preceding each calendar
year, the Secretary shall publish in the Federal Register the indexed
amount determined under subparagraph (A) for that calendar year.
(1) IN GENERAL- To be eligible to receive a family and medical insurance
benefit under this title in a State, an eligible employee shall submit an
application to the covered agency for the State at such time, in such manner,
and containing the information specified in paragraph (3) and such additional
information as the agency may require.
(2) IRREVOCABILITY FOR SELF-EMPLOYED INDIVIDUALS- An election by a self-employed
individual to participate in the Program shall be irrevocable.
(3) CERTIFICATION REQUIREMENTS- The covered agency shall require each of
the following, as part of the application for benefits under this section
in connection with any leave:
(A) A certification, submitted in a timely manner, issued by the health
care provider of the eligible employee or of the child, spouse, parent,
domestic partner, grandchild, grandparent or sibling of the employee,
as appropriate, and similar to the certification described section 103(b)
of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613(b)) in connection
with such leave.
(B) In any case in which the covered agency has reason to doubt the validity
of the certification provided under subparagraph (A), the Secretary may
require, at the expense of the covered agency, that the eligible employee
obtain the opinion of a second health care provider designated or approved
by the agency concerning any information certified under subparagraph
(A).
(C) In any case in which the second opinion described in subparagraph
(B) differs from the opinion in the original certification provided under
subparagraph (A), the covered agency may require, at the expense of the
agency, that the employee obtain the opinion of a third health care provider
designated or approved jointly by the agency and the employee concerning
the information certified under subparagraph (A). The opinion of the third
health care provider concerning such information shall be considered to
be final and shall be binding on the agency and the employee.
(1) PAYMENT FROM INSURANCE FUND- Payments of benefits required to be made
under this section shall be made only from the Insurance Fund established
under section 301.
(2) CERTIFICATION AND PAYMENT- On the final decision of a covered agency
or on the final judgment of any court of competent jurisdiction pursuant
to paragraph (3) that any person is entitled to any payment under this section--
(A) the covered agency shall certify to the Managing Trustee of the Board
of Trustees of the Insurance Fund the name and address of the person entitled
to receive such payment, the amount of such payment, and the time at which
such payment shall be made;
(B) the Managing Trustee shall pay the certified amount from the Insurance
Fund to the covered agency; and
(C) the covered agency shall make the payment to the person.
(3) REVIEW- Any eligible employee dissatisfied with any initial determination
under this section shall be entitled to reconsideration of the determination,
and a hearing on the determination, by the Secretary to the same extent
as is provided in section 205(b) of the Social Security Act (42 U.S.C.22
405(b)) and to judicial review of the final decision after such hearing
as is provided in section 205(g) of the Social Security Act (42 U.S.C. 405(g)).
(4) WITHHOLDING OF CERTIFICATION- In any case in which a review of the covered
agency's decision is or may be sought under paragraph (3), the covered agency
may withhold certification of payment pending such review.
(5) OTHER COMPENSATION- Except as provided in section 105, no employee shall
be eligible to receive paid leave benefits under this title for any period
during which--
(A) the employee is receiving worker's compensation or compensation through
unemployment insurance in connection with the event for which the employee
is taking the leave; or
(B) the employee is receiving paid leave benefits from an employer under
a voluntary employer plan approved under section 104.
(f) Regulations- The Secretary shall issue regulations to carry out this subsection,
including the determination of benefits for leave taken intermittently or
on a reduced leave schedule, or for leave taken by a part-time, seasonal,
or intermittent employee.
SEC. 104. VOLUNTARY EMPLOYER PLAN.
(a) In General- Any employer may submit an application to the Secretary for
approval of a voluntary plan. The Secretary may require the employer to resubmit
the plan for approval on a annual basis. During a period for which the Secretary
has approved a plan, the applicant shall provide a voluntary paid benefit
under the plan rather than participating in the Program.
(b) Approval- The Secretary shall approve the voluntary plan of the applicant
if the Secretary finds each of the following with respect to the applicant:
(1) The rights afforded to the employees covered under the plan are equal
to or greater than the rights afforded through the Program.
(2) The plan has been made available to all of the employees of the applicant
employed in the United States or to all employees at any 1 distinct, separate
establishment maintained by the applicant in the United States.
(3) A majority of the employees of the employer employed in the United States
or a majority of the employees employed at any one distinct, separate establishment
maintained by the employer in the United States have consented to the plan.
(4) The plan provides for insurance to be issued by an admitted disability
insurer approved by the Secretary or equivalent insurance (which may be
self-insurance).
(5) The applicant has consented to the plan and has agreed to make the premium
contributions required, if any, and transmit the proceeds to the disability
insurer, if any.
(6) The plan provides for the inclusion of future employees.
(7)(A) The plan will be in effect for a period of not less than 1 year and,
thereafter, continuously unless the Secretary finds that the applicant has
given notice of intent to terminate the plan, as described in subparagraph
(B), and that the fee described in subparagraph (C) has been paid.
(B) The notice shall be filed in writing with the Secretary and shall be
effective--
(i) on the anniversary of the effective date of the plan next following
the date of the filing of the notice; or
(ii) if such anniversary would occur less than 30 days after the date
of the filing of the notice, on the next anniversary of that effective
date.
(C) The applicant shall pay a fee to the Secretary in such amount as the
Secretary determines to be adequate to provide leave benefits under this
title to all eligible employees of the applicant for a period of at least
4 months, plus an amount to pay administrative costs related to processing
and paying such benefits.
(D) Amounts received by the Secretary under this paragraph shall be deposited
in the Insurance Fund.
(8) The amount of deductions from the wages of an employee that is in effect
for the plan shall not be increased on any date other than on the date of
an anniversary of the effective date of the plan.
(c) Orders and Withdrawal of Approval- If the Secretary finds that a voluntary
plan employer is not paying voluntary paid benefits required under the voluntary
plan to the employees under the plan, the Secretary may order the employer
to make the payments. If the Secretary finds that a voluntary plan employer
is not complying with the provisions of the plan, including by not paying
voluntary paid benefits required under the plan, the Secretary may revoke
the Secretary's approval for the plan, and require the employer to participate
in the Program.
SEC. 105. ADDITIONAL BENEFITS.
(a) Additional Employer Benefits-
(1) COVERED EMPLOYERS- Nothing in this title shall be construed to discourage
a covered employer from providing an additional benefit in conjunction with
leave described in section 103(a) to an eligible employee, in addition to
the leave benefit provided to that employee. The additional employer benefit
shall not reduce the amount of the leave benefit that an eligible employee
receives under this title.
(2) VOLUNTARY PLAN EMPLOYERS- Nothing in this title shall be construed to
discourage a voluntary plan employer from providing an additional benefit
in conjunction with leave described in section 103(a) to an employee, in
addition to the voluntary paid benefit provided to that employee. The additional
employer benefit shall not reduce the amount of the voluntary paid benefit
that an employee receives under a voluntary plan described in section 104.
(b) Collective Bargaining-
(1) MORE PROTECTIVE- Nothing in this title shall be construed to diminish
the obligation of a covered employer or voluntary plan employer to comply
with any collective bargaining agreement or any employment benefit program
or plan that provides greater paid leave rights to employees than the rights
established under this title (including rights established under a plan
described in section 104).
(2) LESS PROTECTIVE- The rights established for employees under this title
(including rights established under a plan described in section 104) shall
not be diminished by any collective bargaining agreement or any employment
benefit program or plan.
SEC. 106. PROHIBITED ACTS BY EMPLOYER.
(a) Interference With Rights- It shall be unlawful for any covered employer
to interfere with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under this title.
(b) Discrimination- It shall be unlawful for any covered employer to discharge
or in any other manner discriminate against any individual for opposing any
practice made unlawful by this title.
(c) Interference With Proceedings or Inquiries- It shall be unlawful for any
person to discharge or in any other manner discriminate against any individual
because such individual--
(1) has filed any charge, or has instituted or caused to be instituted any
proceeding, under or related to this title;
(2) has given, or is about to give, any information in connection with any
inquiry or proceeding relating to any right provided under this title; or
(3) has testified, or is about to testify, in any inquiry or proceeding
relating to any right provided under this title.
SEC. 107. ENFORCEMENT.
(a) Civil Action by Employees-
(1) LIABILITY- Any covered employer who violates section 106 shall be liable
to any eligible employee affected--
(A) for damages equal to--
(I) any wages, salary, employment benefits, or other compensation
denied or lost to such employee by reason of the violation; or
(II) in a case in which wages, salary, employment benefits, or other
compensation have not been denied or lost to the employee, any actual
monetary losses sustained by the employee as a direct result of the
violation, such as the cost of providing care, up to a sum equal to
8 weeks of wages or salary for the employee;
(ii) the interest on the amount described in clause (i) calculated at
the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of
the amount described in clause (i) and the interest described in clause
(ii), except that if a covered employer who has violated section 106
proves to the satisfaction of the court that the act or omission which
violated section 106 was in good faith and that the employer had reasonable
grounds for believing that the act or omission was not a violation of
section 106, such court may, in the discretion of the court, reduce
the amount of the liability to the amount and interest determined under
clauses (i) and (ii), respectively; and
(B) for such equitable relief as may be appropriate, including employment,
reinstatement, and promotion.
(A) IN GENERAL- Except as provided in subparagraph (B), an action to recover
the damages or equitable relief prescribed in paragraph (1) may be maintained
against any covered employer (including a public agency) in any Federal
or State court of competent jurisdiction by any 1 or more employees for
and on behalf of--
(ii) the employees and other employees similarly situated.
(B) LIMITATION- The right provided by subparagraph (A) to bring an action
by or on behalf of any employee shall terminate--
(i) on the filing of a complaint by the Secretary in an action under
subsection (b)(3) in which restraint is sought of any further delay
in the payment of the amount described in paragraph (1)(A) to such employee
by an employer responsible under paragraph (1) for the payment; or
(ii) on the filing of a complaint by the Secretary in an action under
paragraph (1) or (2) of subsection (b) in which a recovery is sought
of the damages described in paragraph (1)(A) owing to an eligible employee
by an employer liable under paragraph (1),
unless the action described in clause (i) or (ii) is dismissed without
prejudice on motion of the Secretary.
(3) FEES AND COSTS- The court in an action brought under this subsection
shall, in addition to any judgment awarded to the plaintiff, allow a reasonable
attorneys' fee, reasonable expert witness fees, and other costs of the action
to be paid by the defendant.
(b) Actions by the Secretary-
(1) ADMINISTRATIVE ACTION- The Secretary shall receive, investigate, and
attempt to resolve complaints of violations of section 106 in the same manner
that the Secretary receives, investigates, and attempts to resolve complaints
of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938
(29 U.S.C. 206 and 207).
(A) RIGHT OF ACTION- The Secretary may bring an action in any court of
competent jurisdiction to recover the damages described in subsection
(a)(1)(A).
(B) SUMS RECOVERED- Any sums recovered by the Secretary pursuant to this
paragraph shall be held in a special deposit account and shall be paid,
on order of the Secretary, directly to each employee affected. Any such
sums not paid to an employee because of inability to do so within a period
of 3 years shall be deposited into the Treasury of the United States as
miscellaneous receipts.
(3) ACTION FOR INJUNCTION BY THE SECRETARY- The district courts of the United
States shall have jurisdiction, for cause shown, in an action brought by
the Secretary--
(A) to restrain violations of section 106, including the restraint of
any withholding of payment of wages, salary, employment benefits, or other
compensation, plus interest, found by the court to be due to eligible
employees; or
(B) to award such other equitable relief as may be appropriate, including
employment, reinstatement, and promotion.
(4) SOLICITOR OF LABOR- The Solicitor of Labor may appear for and represent
the Secretary on any litigation brought under this subsection.
(1) Except as provided in paragraph (2), an action may be brought under
subsections (a) or (b) not later than 2 years after the date of the last
event constituting the alleged violation for which the action is brought.
(2) WILLFUL VIOLATION- In the case of such action brought for a willful
violation of section 106, such action may be brought within 3 years of the
date of the last event constituting the alleged violation for which such
action is brought.
(3) COMMENCEMENT- In determining when an action is commenced by the Secretary
for the purposes of this subsection, it shall be considered to be commenced
on the date when the complaint is filed.
(d) Investigative Authority-
(1) IN GENERAL- To ensure compliance with the provisions of this title,
or any regulation or order issued under this title, the Secretary shall
have, subject to paragraph (3), the investigative authority provided under
section 11(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)).
(2) OBLIGATION TO KEEP AND PRESERVE RECORDS- Any covered employer shall
make, keep, and preserve records pertaining to compliance with this title
in accordance with section 11(c) of the Fair Labor Standards Act of 1938
(29 U.S.C. 211(c)) and in accordance with regulations issued by the Secretary.
The Secretary shall have access to the records for purposes of conducting
audits.
(3) REQUIRED SUBMISSIONS GENERALLY LIMITED TO AN ANNUAL BASIS- The Secretary
shall not under the authority of this subsection require any covered employer
or any plan, fund, or program to submit to the Secretary any books or records
more than once during any 12-month period, unless the Secretary has reasonable
cause to believe there may exist a violation of this title or any regulation
or order issued pursuant to this title, or is investigating a charge pursuant
to subsection (b).
(4) SUBPOENA POWER- For the purposes of any investigation provided for in
this section, the Secretary shall have the subpoena authority provided for
under section 9 of the Fair Labor Standards Act of 1938 (29 U.S.C. 209).
SEC. 108. PENALTIES.
(a) Penalties for Submission of False Certifications- If the Secretary finds
that any individual submits a false certification of the health condition
of any person in order to obtain leave benefits under this title with the
intent to defraud, the Secretary shall assess a penalty against the individual
in an amount up to 100 percent of the benefits paid as a result of the false
certification. Penalties collected under this subsection shall be deposited
in the Insurance Fund, notwithstanding the provisions of title 31, United
States Code and used to reimburse the covered employers involved for the amount
of the leave benefits.
(b) Criminal Penalties for False Statements and Solicitations- Whoever--
(1) makes or causes to be made any false statement in support of an application
for leave benefits under this title;
(2) knowingly presents or causes to be presented any false written or oral
material statement in support of any claim for leave benefits under this
title;
(3) knowingly solicits, receives, offers, pays, or accepts any rebate, refund,
commission, preference, patronage, dividend, discount, or other consideration,
whether in the form of money or otherwise, as compensation or inducement
for soliciting a claimant to apply for leave benefits under this title,
except to the extent authorized by a law of the United States; or
(4) knowingly assists, abets, solicits, or conspires with any person to
engage in an act that is prohibited under paragraph (1), (2), or (3),
shall be guilty of a felony and upon conviction shall be fined under title
18, United States Code, or imprisoned for not more than 5 years, or both.
SEC. 109. EDUCATION PROGRAMS.
(a) Authority- The Secretary shall develop and maintain a program of education
concerning the rights and leave benefits under this title.
(b) Notice to Employers- The Secretary shall provide to each covered employer
a notice informing employees of the rights and leave benefits available under
this title. The notice shall be given by every covered employer to each employee
hired, and to each employee taking leave as described in section 103(a).
SEC. 110. REGULATIONS.
The Secretary shall issue regulations to carry out this title.
SEC. 111. EFFECTIVE DATE.
This title shall take effect on January 1, 2009, and shall apply to periods
of leave that commence on or after January 1, 2010.
TITLE II--CIVIL SERVICE FAMILY AND MEDICAL LEAVE INSURANCE PROGRAM
SEC. 201. PROGRAM DEFINITIONS.
(1) AGENCY- The term `agency' means an agency covered under subchapter V
of chapter 63 of title 5, United States Code.
(2) AGENCY EMPLOYEE- The term `agency employee' means an employee who--
(A) meets the requirements of paragraph (1) of section 6381 of title 5,
United States Code; and
(B) has earned wages with an agency for 12 of the last 18 months, prior
to filing an application for leave benefits under this title.
SEC. 202. ESTABLISHMENT OF PROGRAM.
(a) In General- The Director of the Office of Personnel Management shall establish
a Civil Service Family and Medical Leave Insurance Program, and shall issue
regulations providing for the implementation of the program. In issuing the
regulations, the Director shall require that the Director shall provide, or
that the agencies shall provide, family and medical leave insurance benefits
described in section 103 to agency employees. The regulations issued under
this subsection shall include provisions that are the same as regulations
issued by the Secretary to implement the statutory provisions of sections
103, 105, 109, and 110, except insofar as the Director may determine, for
good cause shown and stated together with the regulations, that a modification
of the regulations would be more effective for the implementation of the rights
and protections under those sections. The regulations shall provide for appropriate
remedies and procedures for violations of this title.
(b) Payment- At the direction of the Director or the head of an agency, as
specified in the regulations, the Managing Trustee shall pay funds from the
Insurance Fund for the leave benefits.
TITLE III--FAMILY AND MEDICAL LEAVE INSURANCE FUND
SEC. 301. ESTABLISHMENT.
(a) In General- There is created in the Treasury of the United States a trust
fund to be known as the Family and Medical Leave Insurance Fund. The Insurance
Fund shall consist of such amounts as may be deposited in, or appropriated
to, such fund as provided in this section.
(b) Appropriations to Insurance Fund-
(1) AMOUNTS APPROPRIATED- There is appropriated to the Insurance Fund for
fiscal year 2009 and each fiscal year thereafter, out of any moneys in the
Treasury not otherwise appropriated, amounts equivalent to 100 percent of--
(A) the family and medical leave premiums imposed by sections 3101(c)
and 3111(c) of the Internal Revenue Code of 1986 with respect to wages
(as defined in section 3121 of such Code) reported to the Secretary of
the Treasury or the Secretary's delegate under subtitle F of such Code
after December 31, 2008, as determined by the Secretary of the Treasury
by applying the applicable rates of premium payment under such sections
to such wages, which wages shall be certified by the Commissioner of Social
Security on the basis of the records of wages established and maintained
by the Commissioner of Social Security in accordance with such reports;
and
(B) the family and medical leave premiums imposed by section 1401(c) of
such Code with respect to self-employment income (as defined in section
1402 of such Code) reported to the Secretary of the Treasury or the Secretary's
delegate on tax returns under subtitle F of such Code after December 31,
2008, as determined by the Secretary of the Treasury by applying the applicable
rate of premium payment under such section 1401(c) to such self-employment
income, which self-employment income shall be certified by the Commissioner
of Social Security on the basis of the records of self-employment income
established and maintained by the Commissioner of Social Security in accordance
with such returns.
(2) TRANSFERS- Such appropriated amounts shall be transferred from time
to time from the general fund of the Treasury to the Insurance Fund. Such
amounts shall be determined on the basis of estimates by the Secretary of
the Treasury of the premiums, specified in paragraph (1), paid to or deposited
into the Treasury, and proper adjustments shall be made in amounts subsequently
transferred to the extent prior estimates were in excess of or were less
than such premiums.
(3) INVESTMENTS- All amounts transferred to the Insurance Fund under paragraph
(2) shall be invested by the Managing Trustee referred to in section 302(c)
in the same manner and to the same extent as the other assets of the Insurance
Fund.
SEC. 302. BOARD OF TRUSTEES.
(a) Establishment and Membership- With respect to the Insurance Fund, there
is established a body to be known as the Board of Trustees of the Insurance
Fund which shall be composed of the Secretary of the Treasury, the Secretary
of Labor, the Commissioner of Social Security, and the Secretary of Health
and Human Services, all ex officio, and of two members of the public (both
of whom may not be from the same political party), who shall be nominated
by the President, by and with the advice and consent of the Senate.
(b) Terms and Vacancies- Members of the Board of Trustees shall serve for
a period of 4 years. A member of the Board of Trustees nominated and confirmed
as a member of the public to fill a vacancy occurring during a term shall
be nominated and confirmed only for the remainder of such term. An individual
nominated and confirmed as a member of the public may serve in such position
after the expiration of such member's term until the earlier of the date on
which the member's successor takes office or the date on which a report of
the Board is first issued under paragraph (2) after the expiration of the
member's term.
(c) Managing Trustee and Secretary- The Secretary of the Treasury shall be
the Managing Trustee of the Board of Trustees. The Secretary of Labor shall
serve as the Secretary of the Board of Trustees.
(d) Basic Duties of the Board of Trustees- The Board of Trustees shall meet
not less frequently than once each calendar year. It shall be the duty of
the Board of Trustees to--
(1) hold the Insurance Fund;
(2) report to Congress not later than April 1 of each year--
(A) on the operation and status of the Insurance Fund during the fiscal
year preceding the fiscal year in which the report is made; and
(B) on the expected operation and status of the Insurance Fund during
the fiscal year in which the report is made and the next 2 fiscal years;
(3) report immediately to Congress whenever the Board is of the opinion
that the amount in the Insurance Fund is unduly small; and
(4) review the general policies followed in managing the Insurance Fund,
and recommend changes in such policies, including necessary changes in the
provisions of law that govern the way in which the Insurance Fund is to
be managed.
(e) Requirements Relating to Annual Report- The report provided for in subsection
(d)(2) shall include a statement of the assets of, and the disbursements made
from, the Insurance Fund during the fiscal year preceding the fiscal year
in which the report is made, an estimate of the expected income to, and disbursements
to be made from, the Insurance Fund during the fiscal year in which the report
is made and each of the next two fiscal years, and a statement of the actuarial
status of the Insurance Fund. Such report shall also include an actuarial
opinion by an appropriate employee of the Department of Labor certifying that
the techniques and methodologies used for the report are generally accepted
within the actuarial profession and that the assumptions and cost estimates
used for the report are reasonable.
(f) Liability- A person serving as a member of the Board of Trustees shall
not be considered to be a fiduciary and shall not be personally liable for
actions taken in such capacity with respect to the Insurance Fund.
SEC. 303. INVESTMENT OF THE FAMILY AND MEDICAL LEAVE INSURANCE FUND.
(a) Obligations- It shall be the duty of the Managing Trustee to invest such
portion of the Insurance Fund as is not, in the trustee's judgment, required
to meet current withdrawals. Such investments may be made only in interest-bearing
obligations of the United States or in obligations guaranteed as to both principal
and interest by the United States.
(b) Acquisition- The obligations referred to in subsection (a) may be acquired--
(1) on original issue at the issue price; or
(2) by purchase of outstanding obligations at the market price.
(c) Obligations Issued for Purchase by Fund- The purposes for which obligations
of the United States may be issued under chapter 31 of title 31, United States
Code, are extended to authorize the issuance at par of public debt obligations
for purchase by the Insurance Fund. Such obligations issued for purchase by
the Insurance Fund shall have dates of maturity fixed with due regard for
the needs of the Insurance Fund. Such obligations shall bear interest at a
rate equal to--
(1) except as provided in paragraph (2), the average market yield (computed
by the Managing Trustee on the basis of market quotations as of the end
of the calendar month preceding the date of such issue) on all marketable
interest-bearing obligations of the United States forming a part of the
public debt that are not due or callable until after the expiration of four
years from the end of such calendar month; or
(2) in a case in which such average market yield is not a multiple of 0.1
percent, the multiple of 0.1 percent nearest such market yield.
(d) Other Obligations- The Managing Trustee may purchase interest-bearing
obligations of the United States that are not described in subsection (c)
or obligations guaranteed as to both principal and interest by the United
States, on original issue or at the market price, only in cases in which the
trustee determines that the purchase of obligations described in this paragraph
is in the public interest.
(e) Disposition and Redemption of Obligations- Any obligations acquired by
the Insurance Fund (except public debt obligations issued exclusively to the
Insurance Fund) may be sold by the Managing Trustee at the market price, and
such public debt obligations may be redeemed at par plus accrued interest.
(f) Crediting of Interest and Proceeds- The interest on, and the proceeds
from the sale or redemption of, any obligations held in the Insurance Fund
shall be credited to and form a part of the Insurance Fund.
SEC. 304. PAYMENTS FROM FAMILY AND MEDICAL LEAVE INSURANCE FUND.
The Managing Trustee shall pay from time to time from the Insurance Fund such
amounts as the Secretary of Labor certifies are necessary to make the payments
provided for by section 103, and payments with respect to administrative expenses
under section 305.
SEC. 305. ADMINISTRATIVE EXPENSES.
(a) Availability of Insurance Fund- Under regulations that shall be prescribed
by the Secretary of Labor, funds shall be made available from the Insurance
Fund in connection with the administration of this Act and the administration
of related provisions of the Internal Revenue Code of 1986 in the same manner
and extent as funds are made available from the trust funds referred to in
section 201(g) of the Social Security Act (42 U.S.C. 401(g)) in connection
with the administration of the relevant provisions referred to in such section.
(b) Authorization of Appropriations- There are authorized to be made available
for expenditure such amounts as Congress may determine to be appropriate to
pay the costs of the part of the administration of this Act (including start-up
costs, technical assistance, and costs for small employers electing to participate
in the Family and Medical Leave Insurance Program) for which the Secretary
of Labor is responsible.
(c) Gifts and Bequests- The Managing Trustee may accept on behalf of the United
States money gifts and bequests made unconditionally to the Insurance Fund
for the benefit of the Insurance Fund or any activity financed through the
Insurance Fund and such gifts and bequests shall be deposited into the Insurance
Fund.
(d) Processing of Tax Data- Section 232 of the Social Security Act (42 U.S.C.
432) shall apply with respect to this Act, in the same manner and to the same
extent as such section applies with respect to title II of the Social Security
Act (42 U.S.C. 401 et seq.).
SEC. 306. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.
(a) Employee Premiums- Section 3101 of the Internal Revenue Code of 1986 (relating
to tax on employees) is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (c) the following new subsection:
`(c) Family and Medical Leave Premiums-
`(1) IN GENERAL- In addition to the taxes imposed by subsections (a) and
(b), there is imposed on the income of every individual a family and medical
leave premium equal to the applicable percentage of the wages (as defined
in section 3121(a)) received by the individual with respect to employment
(as defined in section 3121(b)).
`(2) APPLICABLE PERCENTAGE- For purposes of paragraph (1), the applicable
percentage is--
`(A) 0.1 percent with respect to periods of employment by a small employer
(as defined in section 3(b) of the Family Leave Insurance Act of 2008)
electing to participate in the Family and Medical Leave Insurance Program
(established under section 102 of such Act); and
`(B) 0.2 percent with respect to all other periods of employment.
`(3) EXCEPTION FOR CERTAIN EMPLOYMENT- Paragraph (1) shall not apply with
respect to a period of employment--
`(A) by an employer during which the Secretary of Labor determines the
employer has in effect a plan which is equivalent to or better than the
Family and Medical Leave Insurance Program (established under section
102 of the Family Leave Insurance Act of 2008); or
`(B) by a small employer (as so defined) who has not elected to participate
in such Program.
For purposes of the preceding sentence, the Secretary of Labor shall prescribe
such regulations as may be appropriate or necessary, including regulations
requiring documentation of employer programs.'.
(b) Employer Premiums- Section 3111 of the Internal Revenue Code of 1986 (relating
to tax on employers) is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (c) the following new subsection:
`(c) Family and Medical Leave Premiums-
`(1) IN GENERAL- In addition to the excise taxes imposed by subsections
(a) and (b), there is imposed on every employer a family and medical leave
premium, with respect to having individuals in such employer's employ, equal
to the applicable percentage of the wages (as defined in section 3121(a))
paid by such employer with respect to employment (as defined in section
3121(b)).
`(2) APPLICABLE PERCENTAGE- For purposes of paragraph (1), the applicable
percentage is--
`(A) 0.1 percent with respect to small employers (as defined in section
3(b) of the Family Leave Insurance Act of 2008) electing to participate
in the Family and Medical Leave Insurance Program (established under section
102 of such Act); and
`(B) 0.2 percent with respect to all other employers.
`(3) EXCEPTION FOR CERTAIN EMPLOYERS- Paragraph (1) shall not apply for
any period with respect to an employer to whom paragraph (1) of section
3101(c) does not apply by reason of paragraph (3) thereof.'.
(c) Self-Employed Premiums- Section 1401 of the Internal Revenue Code of 1986
is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following new subsection:
`(c) Family and Medical Leave Premiums-
`(1) IN GENERAL- In addition to the taxes imposed by subsections (a) and
(b), there is imposed for each taxable year, on the self-employment income
of every individual, a family and medical leave premium equal to 0.4 percent
of the amount of the self-employment income for such taxable year.
`(2) EXCEPTION FOR CERTAIN EMPLOYERS- Paragraph (1) shall not apply for
any period with respect to an employer who has not elected to participate
in the Family and Medical Leave Insurance Program (established under section
102 of the Family Leave Insurance Act of 2008).'.
(d) Conforming Amendments to Social Security Act- Section 201 of the Social
Security Act (42 U.S.C. 401) is amended--
(1) by striking `sections 3101(b) and 3111(b)' both places it appears in
subsection (a)(3) and inserting `sections 3101(b), 3101(c), 3111(b), and
3111(c)', and
(2) by striking `section 1401(b)' both places it appears in subsection (a)(4)
and inserting `sections 1401(b) and 1401(c)'.
(1) EMPLOYMENT PREMIUMS- The amendments made by subsections (a), (b), and
(d)(1) shall apply to wages paid after December 31, 2008.
(2) SELF-EMPLOYMENT PREMIUMS- The amendments made by subsections (c) and
(d)(2) shall apply to taxable years beginning after December 31, 2008.
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