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H.R. 903: Rights for the Transportation Security Administration Workforce Act of 2021


The text of the bill below is as of May 12, 2022 (Passed the House).


I

117th CONGRESS

2d Session

H. R. 903

IN THE HOUSE OF REPRESENTATIVES

AN ACT

To enhance the security operations of the Transportation Security Administration and stability of the transportation security workforce by applying the personnel system under title 5, United States Code, to employees of the Transportation Security Administration, and for other purposes.


1.

Short title

This Act may be cited as the Rights for the Transportation Security Administration Workforce Act of 2022 or the Rights for the TSA Workforce Act of 2022.

2.

Definitions

For purposes of this Act—

(1)

the term adjusted basic pay means—

(A)

the rate of pay fixed by law or administrative action for the position held by a covered employee before any deductions; and

(B)

any regular, fixed supplemental payment for non-overtime hours of work creditable as basic pay for retirement purposes, including any applicable locality payment and any special rate supplement;

(2)

the term Administrator means the Administrator of the Transportation Security Administration;

(3)

the term appropriate congressional committees means the Committees on Homeland Security and Oversight and Reform of the House of Representatives and the Committees on Commerce, Science, and Transportation and Homeland Security and Governmental Affairs of the Senate;

(4)

the term at-risk employee means a Transportation Security Officer, Federal Air Marshal, canine handler, or any other employee of the Transportation Security Administration carrying out duties that require substantial contact with the public during the COVID–19 national emergency;

(5)

the term conversion date means the date as of which subparagraphs (A) through (F) of section 3(c)(1) take effect;

(6)

the term covered employee means an employee who holds a covered position;

(7)

the term covered position means a position within the Transportation Security Administration;

(8)

the term COVID–19 national emergency means the national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) on March 13, 2020, with respect to the coronavirus;

(9)

the term employee has the meaning given such term by section 2105 of title 5, United States Code;

(10)

the term Secretary means the Secretary of Homeland Security;

(11)

the term TSA personnel management system means any personnel management system established or modified under—

(A)

section 111(d) of the Aviation and Transportation Security Act (49 U.S.C. 44935 note); or

(B)

section 114(n) of title 49, United States Code;

(12)

the term TSA means the Transportation Security Administration; and

(13)

the term 2019 Determination means the publication, entitled Determination on Transportation Security Officers and Collective Bargaining, issued on July 13, 2019, by Administrator David P. Pekoske, as modified, or any superseding subsequent determination.

3.

Conversion of TSA personnel

(a)

Restrictions on certain personnel authorities

(1)

In general

Notwithstanding any other provision of law, and except as provided in paragraph (2), effective as of the date of the enactment of this Act—

(A)

any TSA personnel management system in use for covered employees and covered positions on the day before such date of enactment, and any TSA personnel management policy, letter, guideline, or directive in effect on such day may not be modified;

(B)

no TSA personnel management policy, letter, guideline, or directive that was not established before such date issued pursuant to section 111(d) of the Aviation and Transportation Security Act (49 U.S.C. 44935 note) or section 114(n) of title 49, United States Code, may be established; and

(C)

any authority to establish or adjust a human resources management system under chapter 97 of title 5, United States Code, shall terminate with respect to covered employees and covered positions.

(2)

Exceptions

(A)

Pay

Notwithstanding paragraph (1)(A), the limitation in that paragraph shall not apply to any TSA personnel management policy, letter, guideline, or directive related to annual adjustments to pay schedules and locality-based comparability payments in order to maintain parity with such adjustments authorized under section 5303, 5304, 5304a, and 5318 of title 5, United States Code; and

(B)

Additional policy

Notwithstanding paragraph (1)(B), new TSA personnel management policy may be issued if—

(i)

such policy is needed to resolve a matter not specifically addressed in policy in effect on the date of enactment of this Act; and

(ii)

the Secretary provides such policy, with an explanation of its necessity, to the appropriate congressional committees not later than 7 days of issuance.

(C)

Emerging threats to transportation security during transition period

Notwithstanding paragraph (1), any TSA personnel management policy, letter, guideline, or directive related to an emerging threat to transportation security, including national emergencies or disasters and public health threats to transportation security, may be modified or established until the conversion date. The Secretary shall provide to the appropriate congressional committees any modification or establishment of such a TSA personnel management policy, letter, guideline, or directive, with an explanation of its necessity, not later than 7 days of such modification or establishment.

(b)

Personnel authorities during transition period

Any TSA personnel management system in use for covered employees and covered positions on the day before the date of enactment of this Act and any TSA personnel management policy, letter, guideline, or directive in effect on the day before the date of enactment of this Act shall remain in effect until the conversion date.

(c)

Transition to title 5

(1)

In general

Except as provided in paragraph (2), effective as of the date determined by the Secretary, but in no event later than December 31, 2022—

(A)

the TSA personnel management system shall cease to be in effect;

(B)

section 114(n) of title 49, United States Code, is repealed;

(C)

section 111(d) of the Aviation and Transportation Security Act (49 U.S.C. 44935 note) is repealed;

(D)

any TSA personnel management policy, letter, guideline, and directive, including the 2019 Determination, shall cease to be effective;

(E)

any human resources management system established or adjusted under chapter 97 of title 5, United States Code, with respect to covered employees or covered positions shall cease to be effective; and

(F)

covered employees and covered positions shall be subject to the provisions of title 5, United States Code.

(2)

Chapters 71 and 77 of title 5

Not later than 90 days after the date of enactment of this Act—

(A)

chapter 71 and chapter 77 of title 5, United States Code, shall apply to covered employees carrying out screening functions pursuant to section 44901 of title 49, United States Code; and

(B)

any policy, letter, guideline, or directive issued under section 111(d) of the Aviation and Transportation Security Act (49 U.S.C. 44935 note) related to matters otherwise covered by such chapter 71 or 77 shall cease to be in effect.

(3)

Assistance of other agencies

Not later than 180 days after the date of enactment of this Act or December 31, 2022, whichever is earlier—

(A)

the Office of Personnel Management shall establish a position series and classification standard for the positions of Transportation Security Officer, Federal Air Marshal, Transportation Security Inspector, and other positions requested by the Administrator; and

(B)

the Department of Agriculture’s National Finance Center shall make necessary changes to its Financial Management Services and Human Resources Management Services to ensure payroll, leave, and other personnel processing systems for TSA personnel are commensurate with chapter 53 of title 5, United States Code, and provide functions as needed to implement this Act.

(d)

Safeguards on grievances and appeals

(1)

In general

Each covered employee with a grievance or appeal pending within TSA on the date of the enactment of this Act or initiated during the transition period described in subsection (c) shall have the right to have such grievance or appeal removed to proceedings pursuant to title 5, United States Code, or continued within the TSA.

(2)

Authority

With respect to any grievance or appeal continued within the TSA pursuant to paragraph (1), the Administrator may consider and finally adjudicate such grievance or appeal notwithstanding any other provision of this Act.

(3)

Preservation of rights

Notwithstanding any other provision of law, any appeal or grievance continued pursuant to this section that is not finally adjudicated pursuant to paragraph (2) shall be preserved and all timelines tolled until the rights afforded by application of chapters 71 and 77 of title 5, United States Code, are made available pursuant to section 3(c)(2) of this Act.

4.

Transition rules

(a)

Nonreduction in pay and compensation

Under pay conversion rules as the Secretary may prescribe to carry out this Act, a covered employee converted from a TSA personnel management system to the provisions of title 5, United States Code, pursuant to section 3(c)(1)(F)—

(1)

shall not be subject to any reduction in either the rate of adjusted basic pay payable or law enforcement availability pay payable to such covered employee; and

(2)

shall be credited for years of service in a specific pay band under a TSA personnel management system as if the employee had served in an equivalent General Schedule position at the same grade, for purposes of determining the appropriate step within a grade at which to establish the employee’s converted rate of pay.

(b)

Retirement pay

Not later than 90 days after the date of enactment of this Act, the Secretary shall submit to the appropriate congressional committees a proposal, including proposed legislative changes if needed, for determining a covered employee’s average pay for purposes of calculating the employee’s retirement annuity, consistent with title 5, United States Code, for any covered employee who retires within three years of the conversion date, in a manner that appropriately accounts for time in service and annual rate of basic pay following the conversion date.

(c)

Limitation on premium pay

Notwithstanding section 5547 of title 5, United States Code, or any other provision of law, a Federal Air Marshal or criminal investigator hired prior to the date of enactment of this Act may be eligible for premium pay up to the maximum level allowed by the Administrator prior to the date of enactment of this Act. The Office of Personnel Management shall recognize such premium pay as fully creditable for the purposes of calculating pay and retirement benefits.

(d)

Preservation of law enforcement availability pay and overtime pay rates for Federal air marshals

(1)

LEAP

Section 5545a of title 5, United States Code, is amended by adding at the end the following:

(l)

The provisions of subsections (a)–(h) providing for availability pay shall apply to any Federal Air Marshal who is an employee of the Transportation Security Administration.

.

(2)

Overtime

Section 5542 of such title is amended by adding at the end the following:

(i)

Notwithstanding any other provision of law, a Federal Air Marshal who is an employee of the Transportation Security Administration shall receive overtime pay under this section, at such a rate and in such a manner, so that such Federal Air Marshal does not receive less overtime pay than such Federal Air Marshal would receive were that Federal Air Marshal subject to the overtime pay provisions of section 7 of the Fair Labor Standards Act of 1938.

.

(3)

Effective date

The amendments made by paragraphs (1) and (2) shall begin to apply on the conversion date (as that term is defined in section 2 of the Rights for the TSA Workforce Act of 2022).

(e)

Collective bargaining unit

Notwithstanding section 7112 of title 5, United States Code, following the application of chapter 71 pursuant to section 3(c)(2) of this Act, full- and part-time non-supervisory Transportation Security Administration personnel carrying out screening functions under section 44901 of title 49, United States Code, shall remain eligible to form a collective bargaining unit.

(f)

Preservation of other rights

The Secretary shall take any actions necessary to ensure that the following rights are preserved and available for each covered employee as of the conversion date and any covered employee appointed after the conversion date, and continue to remain available to covered employees after the conversion date:

(1)

Any annual leave, sick leave, or other paid leave accrued, accumulated, or otherwise available to a covered employee immediately before the conversion date shall remain available to the employee until used, subject to any limitation on accumulated leave under chapter 63 of title 5, United States Code.

(2)

Part-time personnel carrying out screening functions under section 44901 of title 49, United States Code, pay Federal Employees Health Benefits premiums on the same basis as full-time TSA employees.

(3)

Covered employees are provided appropriate leave during national emergencies to assist the covered employees and ensure TSA meets mission requirements, notwithstanding section 6329a of title 5, United States Code.

(4)

Eligible covered employees carrying out screening functions under section 44901 of title 49, United States Code, receive a split-shift differential for regularly scheduled split-shift work as well as regularly scheduled overtime and irregular and occasional split-shift work.

(5)

Eligible covered employees receive group retention incentives, as appropriate, notwithstanding sections 5754(c), (e), and (f) of title 5, United States Code.

5.

Consultation requirement

(a)

Exclusive representative

(1)

In general

(A)

Beginning on the date chapter 71 of title 5, United States Code, begins to apply to covered employees pursuant to section 3(c)(2), the labor organization certified by the Federal Labor Relations Authority on June 29, 2011, or any successor labor organization, shall be treated as the exclusive representative of full- and part-time non-supervisory TSA personnel carrying out screening functions under section 44901 of title 49, United States Code, and shall be the exclusive representative for such personnel under chapter 71 of title 5, United States Code, with full rights under such chapter.

(B)

Nothing in this subsection shall be construed to prevent covered employees from selecting an exclusive representative other than the labor organization described under paragraph (1) for purposes of collective bargaining under such chapter 71.

(2)

National level

Notwithstanding any provision of such chapter 71, collective bargaining for any unit of covered employees shall occur at the national level, but may be supplemented by local level bargaining and local level agreements in furtherance of elements of a national agreement or on local unit employee issues not otherwise covered by a national agreement. Such local-level bargaining and local-level agreements shall occur only by mutual consent of the exclusive representative of full and part-time non-supervisory TSA personnel carrying out screening functions under section 44901 of title 49, United States Code, and a TSA Federal Security Director or their designee.

(3)

Current agreement

Any collective bargaining agreement covering such personnel in effect on the date of enactment of this Act shall remain in effect until a collective bargaining agreement is entered into under such chapter 71, unless the Administrator and exclusive representative mutually agree to revisions to such agreement.

(b)

Consultation process

Not later than seven days after the date of the enactment of this Act, the Secretary shall consult with the exclusive representative for the personnel described in subsection (a) under chapter 71 of title 5, United States Code, on the formulation of plans and deadlines to carry out the conversion of full- and part-time non-supervisory TSA personnel carrying out screening functions under section 44901 of title 49, United States Code, under this Act. Prior to the date such chapter 71 begins to apply pursuant to section 3(c)(2), the Secretary shall provide (in writing) to such exclusive representative the plans for how the Secretary intends to carry out the conversion of such personnel under this Act, including with respect to such matters as—

(1)

the anticipated conversion date; and

(2)

measures to ensure compliance with sections 3 and 4.

(c)

Required agency response

If any views or recommendations are presented under subsection (b) by the exclusive representative, the Secretary shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented and provide the exclusive representative a written statement of the reasons for the final actions to be taken.

6.

No right to strike

Nothing in this Act may be considered—

(1)

to repeal or otherwise affect—

(A)

section 1918 of title 18, United States Code (relating to disloyalty and asserting the right to strike against the Government); or

(B)

section 7311 of title 5, United States Code (relating to loyalty and striking); or

(2)

to otherwise authorize any activity which is not permitted under either provision of law cited in paragraph (1).

7.

Proposal on hiring and contracting background check requirements

Not later than one year after the date of enactment of this Act, the Secretary shall submit a plan to the appropriate congressional committees on a proposal to harmonize and update, for the purposes of hiring and for authorizing or entering into any contract for service, the restrictions in section 70105(c) of title 46, United States Code, (relating to the issuance of transportation security cards) and section 44936 of title 49, United States Code, (relating to security screener employment investigations and restrictions).

8.

Comptroller General reviews

(a)

Review of recruitment

Not later than one year after the date of the enactment of this Act, the Comptroller General shall submit to Congress a report on the efforts of the TSA regarding recruitment, including recruitment efforts relating to veterans and the dependents of veterans and members of the Armed Forces and the dependents of such members. Such report shall also include recommendations regarding how the TSA may improve such recruitment efforts.

(b)

Review of implementation

Not later than 60 days after the conversion date, the Comptroller General shall commence a review of the implementation of this Act. The Comptroller General shall submit to Congress a report on its review no later than one year after such conversion date.

(c)

Review of promotion policies and leadership diversity

Not later than one year after the date of the enactment of this Act, the Comptroller General shall submit to Congress a report on the efforts of the TSA to ensure that recruitment, hiring, promotion, and advancement opportunities are equitable and provide for demographics among senior leadership that are reflective of the United States’ workforce demographics writ large. Such report shall, to the extent possible, include an overview and analysis of the current demographics of TSA leadership and, as appropriate, recommendations to improve hiring and promotion procedures and diversity in leadership roles that may include recommendations for how TSA can better promote from within and retain and advance its workers.

(d)

Review of harassment and assault policies and protections

Not later than one year after the date of the enactment of this Act, the Comptroller General shall submit to Congress a report on the efforts of the TSA to ensure the safety of its staff with regards to harassment and assault in the workplace, such as incidents of sexual harassment and violence and harassment and violence motivated by an individual’s perceived race, ethnicity, religion, gender identity or sexuality, and including incidents where the alleged perpetrator or perpetrators are members of the general public. Such report shall include an overview and analysis of the current TSA policies and response procedures, a detailed description of if, when, and how these policies fail to adequately protect TSA personnel, and, as appropriate, recommendations for steps the TSA can take to better protect its employees from harassment and violence in their workplace. In conducting its review, the Comptroller General shall provide opportunities for TSA employees of all levels and positions, and unions and associations representing such employees, to submit comments, including in an anonymous form, and take those comments into account in its final recommendations.

9.

Sense of Congress

It is the sense of Congress that—

(1)

the TSA’s personnel system provides insufficient benefits and workplace protections to the workforce that secures the nation’s transportation systems and that the TSA’s workforce should be provided protections and benefits under title 5, United States Code; and

(2)

the provision of these title 5 protections and benefits should not result in a reduction of pay or benefits to current TSA employees.

10.

Assistance for Federal Air Marshal Service

The Administrator may communicate with organizations representing a significant number of Federal Air Marshals, to the extent provided by law, to address concerns regarding Federal Air Marshals related to the following:

(1)

Mental health.

(2)

Suicide rates.

(3)

Morale and recruitment.

(4)

Equipment and training.

(5)

Work schedules and shifts, including mandated periods of rest.

(6)

Any other personnel issues the Administrator determines appropriate.

11.

Prevention and protection against certain illness

The Administrator, in coordination with the Director of the Centers for Disease Control and Prevention and the Director of the National Institute of Allergy and Infectious Diseases, shall ensure that covered employees are provided proper guidance regarding prevention and protections against the COVID–19 National Emergency, including appropriate resources.

12.

Hazardous duty payments

Subject to the availability of appropriations, and not later than 90 days after receiving such appropriations, the Administrator shall provide a one-time bonus payment of $3,000 to each at-risk employee.

13.

Authorization of appropriations

There is authorized to be appropriated such sums as may be necessary, to remain available until expended, to carry out this Act.

14.

Study on feasibility of commuting benefits

Not later than 270 days after the enactment of this Act, the Administrator shall submit to the appropriate congressional committees a feasibility study on allowing covered employees carrying out screening functions under section 44901 of title 49, United States Code, to treat as hours of employment time spent by such employees regularly traveling between airport parking lots and bus and transit stops and screening checkpoints before and after the regular work day. In conducting such study, the Administrator shall consider—

(1)

the amount of time needed to travel to and from airport parking lots and bus and transit stops at representative airports of various sizes;

(2)

the feasibility of using mobile phones and location data to allow employees to report their arrival to and departure from airport parking lots and bus and transit stops; and

(3)

the estimated costs of providing such benefits.

15.

Briefing on assaults and threats on TSA employees

Not later than 90 days after the date of the enactment of this Act, the Administrator shall brief the appropriate congressional committees regarding the following:

(1)

Reports to the Administrator of instances of physical or verbal assault or threat made by a member of the general public against a covered employee engaged in carrying out screening functions under section 44901 of title 49, United States Code, since January 1, 2019.

(2)

Procedures for reporting such assaults and threats, including information on how the Administrator communicates the availability of such procedures.

(3)

Any steps taken by TSA to prevent and respond to such assaults and threats.

(4)

Any related civil actions and criminal referrals made annually since January 1, 2019.

(5)

Any additional authorities needed by the Administrator to better prevent or respond to such assaults and threats.

16.

Annual reports on TSA workforce

Not later than one year after the date of the enactment of this Act and annually thereafter, the Administrator shall submit to the appropriate congressional committees a report that contains the following:

(1)

An analysis of the Office of Personnel Management’s Federal Employee Viewpoint Survey (FEVS) to determine job satisfaction rates of covered employees.

(2)

Information relating to retention rates of covered employees at each airport, including transfers, in addition to aggregate retention rates of covered employees across the TSA workforce.

(3)

Information relating to actions taken by the TSA intended to improve workforce morale and retention.

Passed the House of Representatives May 12, 2022.

Cheryl L. Johnson,

Clerk.