Implementation of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, 9544-9546 [05-3840]

Agencies

• Office of Personnel Management
• Personnel Management Office

[Federal Register Volume 70, Number 38 (Monday, February 28, 2005)]
[Proposed Rules]
[Pages 9544-9546]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-3840]


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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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Federal Register / Vol. 70, No. 38 / Monday, February 28, 2005 / 
Proposed Rules

[[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--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--www.eeoc.gov and the OSC Web 
site-- 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]
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