11 The Unemployment Compensation Employment Service And Related Federal Programs Titles III, IX, and XII of the Social Security Act (42 U.S.C. 501 et seq., 1101 et seq., and 1321 et seq.), the Federal Unemployment Tax Act (chapter 23 of the Internal Revenue Code of 1986, 26 U.S.C. 3301 et seq.), and the Wagner-Peyser Act comprise the Federal statutory foundation for the Federal-state unemployment compensation and employment service systems. There are no criminal provisions in these statutes. Such criminal provisions as do apply to these Federal-State programs are contained in the State unemployment compensation and employment service laws. Chapter 85 of title 5 of the United States Code (5 U.S.C. 8501 et seq.) contains the only permanent Federal unemployment compensation programs, which cover Federal civilian employees in all branches of the Federal Government and former members of the uniformed services including the Commissioned Corps of the National Oceanic and Atmospheric Administration. The criminal provisions for these programs are in 18 U.S.C. 1919, which contains no reference to which officials or employees of the Federal Government are authorized to conduct these investigations. Chapter 2 of title II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.) contains the Trade Adjustment Assistance Program for workers adversely affected with respect to their employment in United States industry by foreign imports of articles like or directly competitive with articles produced by such workers' firm or appropriate subdivision thereof. Criminal provisions are contained in section 244 of the Act (19 U.S.C. 2316), which contains no reference to which officials or employees of the Federal Government are authorized to conduct these investigations. The Disaster Unemployment Assistance Program, administered by DOL under delegation of authority from the Federal Emergency Management Agency, is authorized under section 410 of The Robert T. Stafford Disaster Relief and Emergency Assistance Act. Criminal provisions are contained in section 314 of the Act (42 U.S.C. 5157, which contains no reference to which officials or employees of the Federal Government are authorized to conduct these investigations. The only other existing unemployment compensation-type program is the Redwood Employees Protection Program, which is now in the process of phasing out. The program was created under title II of Public 95-250 (March 27, 1978), which contains no criminal provisions. The Immigration and Nationality Act ( 8 U.S.c. 1101 et seq). Pursuant to 8 U.S.C. 1101(a) (15) (H) (ii) (a) and (ii) 1182(a)(14), 12 Employment and Training Administration certifies to the Attorney General regarding the employment of certain immigrant and nonimmigrant aliens in the United States. The Attorney General at 8 U.S.C. 1103, is "charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens" with exceptions not relevant to the Senator's question. Accordingly, the Immigration and Nationality Act does not specify that DOL officers or employees are to undertake criminal investigations under that Act. Criminal law enforcement in these programs, primarily relating to fraud, is undertaken by the Department of Justice, primarily under 18 U.S.C. 1001 and 1546. EMPLOYMENT STANDARDS ADMINISTRATION There are a number of statutes which are the responsibility of the Employment Standards Administration. The following is a brief discussion of the criminal provisions of the more significant statutes. Wage and Hour Statutes. The principal statutes administered by the Wage and Hour Division which contain criminal penalties are: the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 216(a), making it a crime to willfully violate the provisions of the Act; the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. 1851, making it a crime to willfully and knowingly violate the Act or regulations thereunder; the Consumer Credit Protection Act (CCPA), 15 U.S.C. 1674, making it a crime to willfully discharge an employee because his or her earnings have been subjected to garnishment for any one indebtedness; the Contract Work Hours and Safety Standards Act (CWHSSA), 40 U.S.C. 332, making it a crime to intentionally violate any provisions of the Act; and the Copeland Act, 18 U.S.C. 874, making it a crime to induce any person on a Federal or Federally assisted construction contract to give up any part of the compensation to which he is entitled, and 40 U.S.C. 276c, specifically applying 18 U.S.C. 1001 to wage statements furnished to the government on Federal and Federally assisted construction contracts. Investigations undertaken by Wage-Hour in connection with the enforcement of these various labor standards disclose these violations. FLSA Section 11(a) of the FLSA commits to the Secretary of Labor or his/her designated representatives authority to investigate wages, hours and other conditions of employment in industries subject to the Act. The Secretary is directed to utilize the bureaus and divisions of the Department for all investigations and inspections. Section 4 (a) of the FLSA creates the Wage and Hour Division, under the direction of the Administrator. Reorganization Plan No. 6 of 1950 (64 Stat. 1263) transfers to the Secretary all functions of other officers of the Department, including the 13 Wage-Hour Administrator, and all functions of all agencies of the Department, including the Wage and Hour Division. The Secretary has, by administrative delegations, delegated enforcement authority under the FLSA to the Assistant Secretary for Employment Standards (current delegation reflected in Secretary's Order 1-89, Jan. 13, 1989); the latter official has in turn delegated authority for FLSA enforcement to the Administrator of the Wage and Hour Division (Employment Standards Order No. 89-02, March 17, 1989). While the FLSA grants broad enforcement authority to the Secretary, neither the statute nor the delegation orders specifically designate officials responsible for criminal investigations under the Act. MSPA Section 512(a) of MSPA directs the Secretary to conduct investigations to determine compliance with the Act. By administrative delegation, this authority has been delegated to the Assistant Secretary for Employment Standards (Secretary's order 1-89, Jan. 13, 1989), and redelegated to the Administrator of the Wage and Hour Division (Employment Standards Order No. 8902, Mar. 17, 1989). While the MSPA grants broad investigative authority to the Secretary, neither the statute nor the delegation orders specifically designate officials responsible for criminal investigations under the Act. CCPA Section 306 of CCPA directs the Secretary, acting through the Wage and Hour Division, to enforce the provisions of the Act. Delegations of this authority have been made from the Secretary to the Assistant Secretary for Employment Standards, and then to the Administrator of the Wage and Hour Division. Neither the statute nor the delegation orders specifically designate officials responsible for criminal investigations under the Act. Contract Work Hours and Safety Standards Act and the Copeland Act -Reorganization Plan No. 14 of 1950 (64 stat. 1267) assigns to the various contracting agencies and to the Secretary of Labor responsibility for investigations with respect to compliance with these statutes. In addition, the Secretary of Labor has authority to issue rules, standards, and procedures which are binding upon the contracting agencies. Delegations of the Secretary's authority, as described above for FLSA and MSPA, have been made by the Secretary. While the Secretary is given investigative authority, neither the statute nor the delegation orders specifically designate officials responsible for criminal 14 Office Of Workers' Compensation Statutes ESA's Office of Workers' Compensation Programs (OWCP) administers four statutes. These statutes are: (1) the Federal Employees' Compensation Act (FECA), 5 U.S.C. §8101 et seq.; (2) the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.; (3) the War Hazards Compensation Act, 42 U.S.C. §1701 et seq; and (4) the Black Lung Benefits Act, 30 U.S.C. 901-945 (1982). The FECA itself does not contain any criminal provisions; rather applicable criminal provisions are set forth at 18 U.S.C. §§ 292, 1920, 1921 and 1926. None of these sections specify which agency or official should conduct investigations. The Secretary's investigative authority is set out in section 8126. It states the Secretary may, on any matter within her jurisdiction: (1) issue subpoenas for and compel the attendance of witnesses within a radius of 100 miles; (2) administer oaths; (3) examine witnesses; and (4) require the production of books, papers, documents and other evidence. The War Hazards Compensation Act has two criminal provisions at 42 U.S.C. §§ 1713 and 1714. These sections are silent as to which agency or office has investigative authority. The LHWCA contains several criminal provisions: §§ 15(a), 28(e), 31 (a) (10, 31(c), and 38 (a) and (b). With the exception of § 31(a), the LHWCA provisions are silent as to which agency or officer has authority to conduct investigations. Subparagraph (2) of § 31(a) provides that the United States Attorney shall make every reasonable effort to investigate complaints filed under subparagraph (1). Section 39 of the Longshore Act authorizes the Secretary to administer the statute which includes the authority to receive and process claims for benefits. The statute, with certain specific exceptions, does not specifically grant the Secretary "investigative and enforcement" authority. The Black Lung Benefits Act, 30 U.S.C. 901-945 (1982), does not specify the DOL officers or employees authorized to undertake criminal investigations under the Act. Although several provisions of the Black Lung Act (including incorporated provisions of the Social Security and Longshore Acts) provide for criminal penalties (30 U.S.C. 933 (d) (2), 941; 33 U.S.C. 915, 928 (e); 42 U.S.C. 406, 408), neither those nor any other provisions of the Act identify specific DOL officers or employees authorized to undertake criminal investigations. The laws Office of Federal Contract Compliance Programs administered by the Office of Federal Contract Compliance Programs (OFCCP) within ESA do not directly contemplate criminal investigations. The only mention of criminal enforcement is in Section 209 (a) (4) of Executive Order 11246, which provides that the Secretary may "[r]ecommend to the Department of Justice that criminal proceedings be brought for the furnishing of false 15 information to any contracting agency or to the Secretary of Labor as the case may be." We do not understand this provision to authorize or envision criminal investigations; rather it simply empowers the Secretary to refer to DOJ instances of suspected criminal falsification of records that might be discovered during regular nondiscrimination and affirmative action investigations. OFFICE OF LABOR MANAGEMENT STANDARDS The Office of LaborManagement Standards has enforcement responsibilities regarding four statutes: 1) the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 401 et seq.; 2) Section 1209 (b) of the Postal Reorganization Act, 39 U.S.C. § 1209 (b); 3) the standards of conduct provisions of the Civil Service Reform Act of 1978 at 5 U.S.C. § 7120; and 4) the standards of conduct provisions of the Foreign Service Act of 1980 at 22 U.S.c. § 4117. Among those enforcement provisions, only the LMRDA contains criminal sanctions. The LMRDA contains twelve sections containing criminal provisions. None of those criminal provisions specifies which Department of Labor officers or employees should undertake those criminal investigations. With respect to both the criminal and civil provisions of the LMRDA, section 601 of the LMRDA, 29 U.S.C. § 521, states only that the "Secretary" has the power to conduct the investigations. Section 601 states in pertinent part: The Secretary shall have power when he In conjunction with LMRDA criminal investigations, U.S. Attorneys sometimes request the Office of Labor-Management Standard's involvement in the investigation of violations of other related criminal statutes such as the Hobbs Act, the Racketeer Influenced |