Continuation of Employment Benefits for Senate Restaurant Employees
Continuation of Employment Benefits for Senate
Restaurant Employees
Updated July 22, 2008
Jacob R. Straus
Analyst on the Congress
Government and Finance Division
Continuation of Employment Benefits for Senate
Restaurant Employees
Summary
The Senate Committee on Rules and Administration is reportedly considering
contracting the Senate restaurant system to a private vendor. On July 17, 2008,
President George W. Bush signed a bill that continues employment benefits for
current Senate restaurant employees should the restaurants be contracted to a private
vendor. P.L. 110-279, introduced as S. 2967, “provide[s] for certain Federal
employee benefits to be continued for certain employees of the Senate Restaurants
after operations of the Senate Restaurants are contracted to be performed by a private
business concern, and for other purposes.” P.L. 110-279 provides for the
continuation of Senate restaurant employees’ salary, health benefits, accrued sick and
annual leave, transit benefits, and retirement accounts. In addition, P.L. 110-279
provides severance pay to covered employees and an early retirement option for
employees who meet criteria set out in the legislation. These issues are similar to
those faced by the House of Representatives when its restaurant system was
contracted to a private vendor in 1986.
Contents
Restaurant Operations..........................................1
Provisions of P.L. 110-279......................................3
Definitions ...............................................3
Continuous Service........................................4
Benefit and Pay Continuation................................4
Election of Coverage.......................................4
Voluntary Separation Incentive Plan...........................4
Early Retirement..........................................5
Analysis .....................................................5
Collective Bargaining......................................5
Continuation of Employment Benefits for
Senate Restaurant Employees
Restaurant Operations
Since August 1, 1961, Senate restaurant operations have been under the
jurisdiction of the Architect of the Capitol. Pursuant to P.L. 87-822, management of
the Senate restaurants was transferred from the Committee on Rules and
Administration to the Architect. At that time, the Architect was given authority to
“prescribe for the operation and the employment of necessary assistance for the
conduct of said restaurants by such business methods as may produce the best results
consistent with economical and modern management, subject to the approval of the1
Senate Committee on Rules and Administration as to matters of general policy.”
Pursuant to 2 U.S.C. § 2042, by the adoption of a resolution the Committee on
Rules and Administration can remove the restaurants from the Architect’s
jurisdiction.
That the management of the Senate Restaurants by the Architect of the Capitol
shall cease and the restaurants revert from the jurisdiction of the Architect of the
Capitol to the jurisdiction of the Senate Committee on Rules and Administration
upon adoption by that committee of a resolution ordering such transfer of2
jurisdiction at any time hereafter.
Under the Architect’s management of the Senate restaurants, restaurant workers
have been employees of the Architect of the Capitol since 1961 and are afforded all
benefits associated with federal government employment. Should the Committee on
Rules and Administration decide to contract Senate restaurant operations to a private
contractor, restaurant employees could lose their federal government benefits. On
May 1, 2008, Senator Dianne Feinstein and cosponsors introduced S. 2967 “to
provide for certain Federal employee benefits to be continued for certain employees
of the Senate Restaurants after operations of the Senate Restaurants are contracted3
to be performed by a private business concern.” In recent media reports a spokesman
for Senator Feinstein indicated that the Committee on Rules and Administration is
moving toward privatizing the Senate restaurants and that the Senate will use the
same vendor, Restaurant Associates,4 that currently operates the restaurants in the
1 2 U.S.C. § 2042.
2 Ibid.
3 S. 2967 (110th Congress), introduced May 1, 2008.
4 Elizabeth Brotherton, “Senate Cafeterias Set to Be Privatized,” Roll Call, Mar. 6, 2008
(continued...)
House of Representatives5 and is under contract to operate the dining facilities in the
Capitol Visitor Center. On June 3, 2008, S. 2967 passed the Senate, without
amendment, by unanimous consent.6 On July 10, 2008, S. 2967 passed the House
by voice vote.7 On July 17, 2008, S. 2967 was signed by President George W. Bush
as P.L. 110-279.8
The process used in the House of Representatives to contract restaurant
operations to a private vendor and how the House continued benefits for employees
during the transition might be illustrative of issues that may pertain to Senate
restaurant employees. Before the House restaurants were operated by a private
vendor, all employees of the House restaurants were paid through the restaurant’s
revolving fund, which was administered by the Architect of the Capitol,9 and were
covered by the federal retirement program.10 When Service America Corporation
assumed day-to-day management of the House Restaurant System in 1986, the
restaurants’ employees were no longer considered legislative branch employees.
However, the 1986 contract guaranteed employment for certain restaurant employees
and continued the employees’ benefits. As explained in a General Accounting Office
report, Service America Corporation was required to
provide the right to work for 2 years to the House food service employees of the
Architect who were displaced as a result of conversion to contractor operations.
It was also required by law to (1) pay the federal payroll retirement and savings
benefits of those employees it hired who elected to retain their CSRS [Civil
4 (...continued)
[http://www.rollcall.com/issues/1_1/latest_news/22442-1.html?type=pf], accessed May 20,
5 U.S. Congress, House of Representatives, Chief Administrative Officer, “House Cafeteria
to Undergo Major Menu, Operational Changes in December,” press release, Nov. 13, 2007
[http://cao.house.gov/press/cao-20071113.shtml], accessed Feb. 4, 2008. Food service in the
Ford Cafeteria is scheduled to transition from the current vendor, the Skenteris family, to
Restaurant Associates in September 2008.
6 Sen. Barbara Boxer, “Providing for Certain Federal Employee Benefits,” remarks in the
Senate, Congressional Record, daily edition, vol. 154 (June 3, 2008), pp. S4986-S4988.
7 Rep. Robert Brady, “Providing for Continued Benefits for Certain Senate Restaurant
Employees,” remarks in the House, Congressional Record, daily edition, vol. 154 (July 10,
8 P.L. 110-279, 122 Stat. 2604, July 17, 2008.
9 Telephone conversation between the author and Charles Howell, chief counsel, Committee
on House Administration, Feb. 6, 2008.
10 U.S. General Accounting Office, House Restaurant System: Response to Questions on
Service America Corporation’s Operations of House Food Services, GAO/AIMD-94-32,
Apr. 1994, p. 4. The General Accounting Office is now the Government Accountability
Office. Restaurant employees were eligible for either the Civil Service Retirement System
(CSRS) or the Federal Employees Retirement System (FERS), depending on their federal
service start date. For further discussion on the development of both federal retirement
systems and eligible employees, see CRS Report 98-810EPW, Federal Employees’
Retirement System: Benefits and Financing, by Patrick Purcell.
Service Retirement System] or the FERS [Federal Employees Retirement
System] coverage and (2) process those benefits in accordance with federal
retirement program regulations promulgated by the Office of Personnel
Management (OPM) and the federal TSP [Thrift Savings Plan] regulations issued
by the Federal Retirement Thrift Investment Board.11
In 1991, the Committee on House Administration resumed control of the
restaurants on a temporary basis. As a result of the House Administration
Committee’s operation of the restaurant system, restaurant employees, for the first
time, became House employees.12 In 1994, the Committee on House Administration
again sought a private contractor to operate the House restaurants and contracted with
Thompson Hospitality and Marriott to operate the restaurants.13 At that time,
employees were transferred back to the private sector.
If the Senate contracts the operation of its restaurants, at least some of the
restaurants’ personnel would likely become employees of the vendor. Following the14
House model, to continue some of the benefits that restaurant employees now have
as federal government employees, the Senate passed S. 2967 by unanimous consent15
without amendment.
Provisions of P.L. 110-279
In the event that the operation of the Senate restaurants is contracted to a private
vendor, Senator Feinstein, along with Senator Robert Bennett and Senator Harry
Reid, introduced S. 2967 “to provide for certain Federal employee benefits to be
continued for certain employees of the Senate Restaurants after operations of the
Senate Restaurants are contracted to be performed by a private business concern.”16
As enacted, P.L. 110-279 defines covered employees, provides benefit and pay
continuation for current employees, creates a voluntary separation incentive plan, and
provides for early retirement for qualified employees. The following is a summary
of each of these provisions.
Definitions. P.L. 110-279 provides definitions of employees who are covered
by its provisions.
11 Ibid.
12 U.S. Congress, Committee on House Administration, Report on the Activities of the
Committee on House Administration of the House of Representatives During the Onendnd
Hundred Second Congress, 102 Cong., 2 sess., H.Rept. 102-1083 (Washington: GPO,
13 Ibid, p. 67.
14 P.L. 99-591, 100 Stat. 3341-348-349, Oct. 30, 1986. The House offered its employees the
option of retaining their federal retirement benefits. If an employee elected to retain federal
benefits, the contractor was treated as a federal employer and made appropriate payments
to the federal retirement system on the employee’s behalf.
15 Sen. Barbara Boxer, “Providing for Certain Federal Employee Benefits,” remarks in the
Senate, Congressional Record, daily edition, vol. 154 (June 3, 2008), pp. S4986-S4988.
16 S. 2967 (110th Congress), introduced May 1, 2008.
Covered Employees. As defined by Section 1(a)(2)(A), employees who
would be eligible for benefits upon transfer to a private contractor are current Senate
restaurant employees of the Architect of the Capitol as of the date of enactment.
These include the following:
!permanent employees (full or part time);
!temporary employees (full or part time); and
!employees included under 2 U.S.C. § 2048 (Director of Food
Services, Assistant Director of Food Services, Manager of Special
Functions, and the Administrative Officer).
Continuous Service. As defined by Section 1(c)(2)(A), an employee who
chooses to continue his or her federal government benefits would be credited with
continuous service for time employed by the food service contractor or a successor
contractor. The employee would continue to accrue the benefits he or she enjoyed as
an employee of the Architect of the Capitol for the length of employment with the
food service contractor or successor contractor.
Benefit and Pay Continuation. As defined by Section 1(c), six benefits
currently provided to Senate restaurant employees would continue for those
employees who elected to continue federal government benefits. The eligible benefits
are as follow:
!retirement (including eligibility for the Civil Service Retirement
System (CSRS) or Federal Employees Retirement System (FERS)
and for the Thrift Savings Plan (TSP)),
!life insurance,
! pay,
!health insurance,
!leave accrued (annual and sick), and
!transit subsidies.
Election of Coverage. Pursuant to Section 1(b), employees would be
required to elect to continue to receive federal government benefits after they are
transferred to a private contractor. To elect coverage, the employee must submit a
request to the Office of Human Resources of the Architect of the Capitol not later
than the day before the private contractor assumes management of the Senate
restaurants. Without election of coverage, the employee would forgo federal
government benefits.
Voluntary Separation Incentive Plan. Pursuant to Section 1(e), the
Architect of the Capitol would be required to submit a plan, under 2 U.S.C. § 60q,17
within 30 days of enactment to provide a voluntary separation program for eligible
employees who are not of retirement age, and wish not to be transferred to a private
17 2 U.S.C. § 60q governs the creation of voluntary separation programs and specifies who
is authorized to offer payments, the amount and administration of payments, the requirement
of a plan for making payments, who are eligible employees, and repayment of funds
disbursed for individuals who return to federal government employment in the future.
contractor. This benefit would also be available to any employee who becomes
eligible and accepts the offer during the 90-day period following the transfer of
restaurant operations to a private vendor.
Early Retirement. Pursuant to Section 1(f), employees of the Senate
restaurants who voluntarily retire on or after the date of enactment and prior to the
date of transfer to a private contractor would be eligible for early retirement if they
meet the following criteria:
!had completed 25 years of service as defined by 5 U.S.C. § 8331(12)
or 5 U.S.C. § 8401(26), or
!had completed 20 years of service and were at least 50 years old, and
!had not been terminated for cause.
Analysis
Proponents of P.L. 110-279 see advantages in the continuation of employee
benefits to current restaurant employees following the contracting of restaurant
functions to a private vendor. Contracting with the firm that currently operates the
restaurants in the House, and is contracted to operate the food services venues in the
Capitol Visitor Center, could provide certain efficiencies, according to supporters.
Opponents of P.L. 110-279 may have objected because they oppose
privatization efforts in general and believe that the Senate should continue to operate
the restaurants. They may have also argued that P.L. 110-279 does not provide strong
enough protections for current employees. Additionally, opponents could have argued
that existing programs continue benefits for workers in both the public and private
sector. For example, the Federal Employees Health Benefits Program (FEHB)
continues health coverage for federal government employees18 and the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA) continues health coverage
for private sector employees.19 In each case, potential opponents did not publicly20
articulate their positions.
Collective Bargaining. The House privatization experience in 1986 suggests
that the unionization of restaurant employees following their transfer could be an
important issue.
18 5 U.S.C. §§ 8901-8914. See also 5 C.F.R. §§ 890.101-890.1308; 5 C.F.R. §§ 891.101-
891.50; and U.S. Office of Personnel Management, “Federal Employees Health Benefits
Program: The FEHB Program” [http://www.opm.gov/insure/health/about/fehb.asp],
accessed May 20, 2008.
19 P.L. 99-272, 100 Stat. 82, Apr. 7, 1986. For more information on COBRA and other
federal programs available to unemployed workers, see CRS Report RL30626, Health
Insurance Continuation Coverage Under COBRA, by Heidi G. Yacker; and CRS Report
RL34251, Federal Programs Available to Unemployed Workers, by Julie M. Whittaker and
Blake Alan Naughton.
20 Emily Yehle, “Feinstein Warns Cafeteria Prices Could Rise,” Roll Call, May 12, 2008,
[http://www.rollcall.com/issues/53_135/news/23557-1.html], accessed May 20, 2008.
Prior to 1995, legislative branch employees did not have the right to unionize.
Both the National Labor Relations Act of 1935 and the Civil Service Reform Act of
The National Labor Relations Act and the Civil Service Reform Act apparently
prevented unionization in the House of Representatives prior to the contracting of
services to private vendors.
The National Labor Relations Act of 1935, as amended,21 exempted the federal
government or any government corporation, as employers, from employee collective
bargaining and unionization requirements.
(2) The term “employer” includes any person acting as an agent of an employer,
directly or indirectly, but shall not include the United States or any wholly owned
Government corporation, or any Federal Reserve Bank, or any State or political
subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C.
151 et seq.], as amended from time to time, or any labor organization (other than
when acting as an employer), or anyone acting in the capacity of officer or agent
of such labor organization.22
The Civil Service Reform Act of 197823 established the right of executive
branch employees to unionize. The Civil Service Reform Act also specifically grants
collective bargaining and unionization rights to the Library of Congress and the
Government Printing Office, while not including specific language regarding
employees of the House of Representatives or the Senate.
(3) “agency” means an Executive agency (including a non-appropriated fund
instrumentality described in section 2105(c) of this title and the Veterans’
Canteen Service, Department of Veterans Affairs), the Library of Congress, the
Government Printing Office, and the Smithsonian Institution, but does not
include — (A) the General Accounting Office; (B) the Federal Bureau of
Investigation; (C) the Central Intelligence Agency; (D) the National Security
Agency; (E) the Tennessee Valley Authority; (F) the Federal Labor Relations
Authority; (G) the Federal Service Impasses Panel; or (H) the United States24
Secret Service and the United States Secret Service Uniformed Division.
In June 1984, two years before the House restaurants were privatized, restaurant
employees began seeking the right to unionize and bargain collectively.25 At the time,
the Architect of the Capitol, George White, maintained that he did not have the
authority to “recognize or bargain with a union” because the House was exempt from
the National Labor Relations Act. White argued that his position was supported by
21 29 U.S.C. §§ 151-169 (49 Stat. 449, July 5, 1935; and 61 Stat. 136, June 23, 1947).
22 29 U.S.C. §152(2), as amended.
23 P.L. 95-454, 92 Stat. 1111, Oct. 13, 1978.
24 5 U.S.C. § 7103(3).
25 “Treatment Afforded Employees in the House of Representatives’ Cafeteria Is Intolerable,
Unfair, and Unusual,”Congressional Record, vol. 132, part 9 (May 22, 1986), p. 11934.
the National Labor Relations Act, which exempted the United States as an
employer. 26
The Congressional Accountability Act of 1995,27 as enacted, applied 11 laws to
the legislative branch, from which it had previously been exempt:
!Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.),
!Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.),
!Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.),
!Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621
et seq.),
!Family and Medical Leave Act of 1993 (29 U.S.C. § 2611 et seq.),
!Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et
seq.),
!Title 5, Chapter 71 of the United States Code (federal service
labor-management relations),
!Employee Polygraph Protection Act of 1988 (29 U.S.C. § 2001 et
seq.),
!Worker Adjustment and Retraining Notification Act (29 U.S.C. §
!Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.), and
!Title 38, Chapter 43 of the United States Code (veterans’
employment and re-employment).28
The Congressional Accountability Act extended the application of Chapter 71
of Title 5, United States Code, to legislative branch employees.29 As a result,
employees of the Architect of the Capitol, including Senate restaurant workers, were
allowed to organize.30
The application of the National Labor Relations Act to employees of the House
Restaurant System, however, occurred after their transfer to the private sector. Should
restaurant workers again be made House or legislative branch employees, they would
26 Democratic Study Group, Fact Sheet: Caucus Vote on Cafeteria Union Dispute, 99th
Cong., 2nd sess., June 9, 1986, p. 1.
27 P.L. 104-1, 109 Stat. 3, Jan. 23, 1995.
28 2 U.S.C. § 1302.
29 Section 220(e)(2) of the Congressional Accountability Act provides exemptions for
numerous offices in Congress, including but not limited to: employees of the personal office
of any Member; committees of the Senate or House of Representatives; the office of the
Vice President (as president of the Senate); the office of the President pro tempore of the
Senate; the offices of the majority and minority leaders of the Senate; the offices of the
majority and minority whips of the Senate; the conferences of the majority and the minority
of the Senate; the offices of the secretaries for the majority and minority of the Senate; the
majority and minority policy committees of the Senate; and many of the offices under the
secretary of the Senate, including the parliamentarian, clerks, printing services, and Senate
chief counsel for employment.
30 Telephone conversation between the author and Teresa James, director of dispute
resolution, Office of Compliance, Feb. 8, 2008.
presumably be allowed to unionize pursuant to the Congressional Accountability Act
unless they were made an exempt group as found in section 220(e)(2) of the act.
Currently, Senate restaurant workers are employees of the Architect of the
Capitol. They are presumably authorized to unionize under the Congressional
Accountability Act. They are not, however, currently represented by a union.31 Were
Senate restaurant employees to be transferred to the private sector, they presumably
would have the right to unionize under the National Labor Relations Act.
31 Telephone conversation between the author and Sean Bailey, congressional liaison,
Architect of the Capitol, Feb. 8, 2008.