Congressional Accountability Act (CAA) Dispute Resolution Process
The Office of Employee Advocacy can provide complainant-side legal consultation and representation to House employees for all matters covered by the Congressional Accountability Act of 1995 and its 2018 Reform Act (CAA) (e.g., harassment, discrimination or retaliation involving an employee's age, race, religion, sex (gender, sexual orientation, gender identity), color, national origin, disability, or military service; medical leave issues (e.g., injury, surgery, chronic conditions, public health emergencies); labor issues; workplace safety), if an employee wants such representation.
If a matter proceeds to litigation, an employee must begin with the CAA Dispute Resolution Process by filing a claim seeking a remedy for violation of the CAA with the Office of Congressional Workplace Rights (OCWR). All employees must follow established dispute resolution procedures to process their claims under the CAA. Employee Advocacy can help employees comply with OCWR procedures and timelines, assess the employee's claims under the law, provide legal advice, and advocate for the employee's legal position.
Multi-step Process for Dispute Resolution
The dispute resolution steps under the CAA Reform Act, effective on June 19, 2019, include:
- Copy of Claim Sent to Employee's Employing Office
- Notification to Employee & Employing Office about Mediation Process
- Notification to Member of Potential Reimbursement Requirement - for Allegations of CAA Violation Personally by Member
Step 3: Optional Mediation (at any time before a written hearing decision or the filing of civil action)
Step 4: Preliminary Review of Claim
Step 5: Formal Administrative Hearing or Civil Action
Step 7: Automatic Referral to House Committee on Ethics - for Allegations of CAA Violation Personally by Member or Senior Staff
Step 1: File a Claim
The first formal step in the dispute resolution process is to file a claim with the Office of Congressional Workplace Rights (OCWR). A claim must be filed within 180 days of the occurrence of an alleged violation of the Congressional Accountability Act. An employee can consult with an Employee Advocacy attorney to get legal advice and representation before proceeding to this formal OCWR step. Employee Advocacy attorneys will inform the employee of their rights under the law and about other options (e.g., proceeding with filing a claim, working with the Office of Employee Assistance, informal discussion with a supervisor or manager, etc.). Further, Employee Advocacy attorneys will recommend a course of action, including the merits of filing a claim. With the employee's input and ultimate approval, Employee Advocacy will draft and file the claim with OCWR.
Before filing a claim, an employee has the additional option to contact OCWR to seek information about their rights and options from a Confidential Advisor (CA). A CA can advise about the merits of various procedural options, provide information about the law, and assist with drafting a claim. CAs are attorneys, but they cannot represent individual employees in proceedings (while Employee Advocacy attorneys can).
A covered employee may designate an individual to represent them at any time during the dispute resolution process. Thus, even if an employee has not sought advice or representation from Employee Advocacy before filing a claim with OCWR, a House employee may contact Employee Advocacy at any time during the dispute resolution process.
Step 2: Notices
Once a claim has been filed, OCWR will immediately transmit a copy of the claim to the employing office and the designated representative of that office. OCWR will also send information to both the employee and the employing office about the mediation process. Further, if an alleged violation is based on acts of a Member, OCWR will send the Member a Notification of Claim, which will inform the Member of the possibility that reimbursement may be required and the right of the Member to intervene at any point in the process.
Step 3: Mediation (Optional)
Any time after a claim has been filed with OCWR and the employing office receives notice of the claim, up and until the time that a Hearing Officer issues a final written decision, either party may make a request for mediation. Participation in mediation is voluntary, and both parties must agree for mediation to proceed. The mediation period is 30 days, beginning on the first day after the second party agrees to the request. The mediation period may be extended for one additional period of 30 days upon joint request.
If both parties agree to mediation, OCWR will appoint a mediator to work with the parties to resolve the matter ("parties" includes each party's attorney, and thus would include the Employee Advocacy attorney advocate for the House employee). The mediator will be a professional trained in dispute resolution. The mediator will meet with the parties in a confidential setting, either together or in separate locations, to discuss the issues and explore ways to resolve them. Mediated settlements are always voluntary; the mediator has no authority to impose a solution or issue a decision on the merits of a matter.
The advantage of a mediated settlement is that it allows both parties in a dispute to take an active role in reaching a settlement rather than having a judgment imposed upon them by a Hearing Officer or judge.
If mediation fails to resolve a claim, an employee may either proceed with an administrative hearing or file a lawsuit in federal district court. An Employee Advocacy attorney can represent the employee at an administrative hearing but will not be able to do so in federal district court. The employee retains the option of obtaining outside private counsel to proceed in federal court.
Step 4: Preliminary Review of Claim
Within seven (7) days of notifying an employing office about a claim, OCWR will appoint a Preliminary Hearing Officer. Within 30 days of a claim being filed, the Preliminary Hearing Officer must provide all parties with a written report that provides a preliminary review of the alleged claim(s). Additional time, not to exceed 30 days, may be requested to complete the written report. The preliminary review shall assess the following factors:
- Whether the claimant is a covered employee under the CAA;
- Whether the subject of the claim(s) is an employing office under the CAA;
- Whether the claim(s) is timely under the CAA;
- Identification of the factual and legal issues of the claim(s);
- The relief sought;
- Whether the claimant has stated a claim for which, if the allegations contained in the claim are true, relief may be granted under the CAA; and
- The potential for settlement of the claim(s) without a formal hearing.
If the Preliminary Hearing Officer determines that an individual is not covered by the CAA or has not stated a claim for which relief may be granted, the employee may not obtain a formal hearing. The Preliminary Hearing Officer will provide the claimant and the OCWR Executive Director with written notice of the finding and the claimant's right to file a civil action in court. If an employee files a civil action in court before the preliminary review concludes, this terminates the preliminary review and the administrative process.
The OCWR Preliminary Hearing Officer will transmit the preliminary review report to the House Committee on Ethics if the alleged actions involve a Member.
Step 5: Formal Hearing
Administrative Hearing
An employee who chooses to pursue an OCWR administrative hearing must request a hearing within 10 days of the Preliminary Hearing Officer's submission of the preliminary review report. The hearing must commence within 90 days of the request, unless there is an agreement between the parties to extend the commencement period for up to 30 days for good cause.
Thereafter, the Executive Director will appoint an independent Merits Hearing Officer to decide the matter. The employing office has 10 days after a request for an administrative hearing is filed to file an answer with OCWR addressing the allegation(s) against the office.
The Merits Hearing Officer assigned to conduct the hearing may require the parties to exchange information and may issue subpoenas, as needed, to determine the facts of the matters alleged. The exchange of information is typically known as the "discovery process," and Employee Advocacy will engage in this process on behalf of – and in cooperation with – the employee.
Employee Advocacy attorneys will advocate on behalf of the employee during the hearing. A Hearing Officer will issue a written decision no later than 90 days after the hearing concludes.
Civil Action
If an employee chooses to proceed with a civil action, the suit must be filed in federal court within 70 days of the claim being filed with OCWR. An employee may not file a civil action without first filing a claim with OCWR. Yet, an employee is not required to await the outcome of the Preliminary Review before filing a civil action. Once a civil action is filed, the OCWR process terminates and the suit will proceed under the rules that apply to actions in federal court.
By the terms of its establishing House Resolution, Employee Advocacy cannot provide assistance to a House employee with respect to investigations or proceedings under the CAA at any time after the employee files a civil action or appeal in federal court. The employee may retain non-government private counsel for proceedings in federal court.
Employees who work on Capitol Hill who choose to file a civil suit normally must do so with the United States District Court for the District of Columbia. Employees who work outside of the District of Columbia may choose to file suit in the United States District Court where they work. An employee may not file both an administrative claim with the OCWR and a civil action.
Step 6: Appeals
Appeal of Administrative Decision
An employee or employing office that is not satisfied with the final decision of an OCWR Merits Hearing Officer may request to have the Hearing Officer's decision reviewed by the OCWR Board of Directors. Employee Advocacy can represent an employee in the OCWR appeal process. The request for review must be made within 30 days after the Hearing Officer's decision is entered into the records of the OCWR. An Employee Advocacy attorney can prepare and submit the request for appeal on behalf of the employee. After reviewing the arguments from both sides in the dispute, the OCWR Board of Directors will issue a written decision.
If either the employee or employing office is dissatisfied with the Board's decision, they may appeal the decision to the U.S. Court of Appeals for the Federal Circuit.
Appeal of District Court Decision
If the case is brought as a civil action in U.S. District Court, an appeal of the District Court decision would proceed in the circuit court that presides over the federal judicial district where the civil action was processed and under the rules that apply to appeals in federal court.
Step 7: Automatic Referral to Congressional Ethics Committee
Upon final disposition of a claim alleging wrongdoing by a Member (a U.S. House Representative) or House Senior Staff, OCWR will refer the claim to the House Committee on Ethics. OCWR will provide the Committee with access to its records, including preliminary reviews, hearings records, decisions by Hearing Officers or the OCWR Board, and any information relating to any award or settlement paid in response to a claim.
Additional information about the dispute resolution process is available in the OCWR's CAA Reform Act Overview, OCWR's Filing a Claim guidance, the OCWR's Procedural Rules, and the Congressional Accountability Act.