[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5873 Introduced in House (IH)]
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.
In this title:
(1) Eligible employee.--The term ``eligible employee''
means any of the following:
(A) An employee who--
(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.
(B) An employee--
(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--
(i) that is--
(I) an employer;
(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
(ii) includes--
(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).
(c) Benefit Amount.--
(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.
(d) Application.--
(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.
(e) Payment of Benefits.--
(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) the amount of--
(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.
(2) Right of action.--
(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--
(i) the employees; or
(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).
(2) Civil action.--
(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.
(c) Limitation.--
(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.
In this title:
(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)''.
(e) Effective Date.--
(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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