Rules & Regulations

Dear Mr. Thompson:

The Office of the Senate Chief Counsel for Employment submits the following comments to the Second Notice of Proposed Procedural Rule Making.

§ 1.03 Filing and Computation of Time

(a) Method of Filing

The ability to file documents with the Office of Compliance (“the OC”) by electronic transmittal is a useful alternative but should be authorized only if the OC implements appropriate security measures to safeguard the confidentiality of electronically submitted documents. Further, the OC should propose rules that specify which documents may be submitted electronically and any requirements for the submission (e.g., requiring portable document format (pdf) to ensure that the documents are not modified after filing). This would eliminate burdening the parties with making a separate request every time they wish to submit a document by electronic means and the uncertainty of whether their request will be approved.

The proposed rule should address how receipt of electronic filings will be confirmed or what happens if there is a technical problem that prohibits the submission of a document by electronic means or the submission is interrupted and not completely received.

2.03 Counseling

The employing office should be provided with the request for counseling when the employee proceeds to mediation. Because the CAA is a waiver of sovereign immunity, the conditions on which Congress waived its immunity must be strictly complied with. One such condition is that the employee must exhaust the administrative process with respect to all of his/ her claims. The employing office has the right to assert a defense if the employee fails to exhaust the administrative process. The employing office cannot know, however, whether the claims the employee addressed in mediation and/or litigation are the same as those raised in counseling unless the employing office receives a copy of the request for counseling at the time the employee requests mediation. Accordingly, the rule should state that the employing office will receive a copy of the written request for counseling when/if the employee proceeds to the mediation stage.