Safety and Health Whistleblower Protection Act - Amends the Occupational Safety and Health Act of 1970 to prohibit employer reprisals against employees based on certain employee conduct concerning safe and healthy working conditions. Sets forth procedures for filing, investigating, issuing temporary and final orders providing relief, conducting hearings, obtaining judicial review of final orders, and enforcing final orders with regard to an employee's complaint of such a reprisal.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 652 Introduced in Senate (IS)]
106th CONGRESS
1st Session
S. 652
To amend the Occupational Safety and Health Act of 1970 to protect
employees against reprisals from employers based on certain employee
conduct concerning safe and healthy working conditions.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 17, 1999
Mr. Wellston (for himself and Mr. Kennedy) introduced the following
bill; which was read twice and referred to the Committee on Health,
Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Occupational Safety and Health Act of 1970 to protect
employees against reprisals from employers based on certain employee
conduct concerning safe and healthy working conditions.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Safety and Health Whistleblower
Protection Act''.
SEC. 2. EMPLOYEE ACTIONS.
Section 11(c)(1) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 660(c)(1)) is amended by inserting before the period the
following: ``including reporting any injury, illness or unsafe
condition''.
SEC. 3. PROHIBITION OF DISCRIMINATION.
Section 11(c) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 660(c)) is amended by striking paragraph (2) and inserting the
following:
``(2) No person shall discharge or in any manner discriminate
against an employee for refusing to perform the employee's duties when
the employee has a reasonable apprehension that performing such duties
would result in serious injury or serious impairment of health to the
employee or other employees. The circumstances causing the employee's
apprehension of serious injury must be of such a nature that a
reasonable person would conclude that there is a danger of serious
injury or serious impairment of health. This paragraph shall only apply
to an employee to the extent that the employee, if possible,
communicated to the employer the danger perceived.''.
SEC. 4. PROCEDURE.
Section 11(c) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 660(c)) is amended by striking paragraph (3) and inserting the
following:
``(3) Any employee who believes that he or she has been discharged,
disciplined, or otherwise discriminated against in violation of
paragraph (1) or (2) may, within 180 days after the date on which such
alleged violation occurs, file (or have filed by any person on the
employee's behalf) a complaint with the Secretary alleging such
discharge, discipline, or discrimination. Upon receipt of such a
complaint, the Secretary shall notify the person named in the complaint
of the filing of the complaint.
``(4)(A) Within 90 days of the receipt of a complaint filed under
paragraph (3), the Secretary shall conduct an investigation and
determine whether there is reasonable cause to believe that the
complaint has merit and shall notify the complainant and the person
alleged to have committed the violation of paragraph (1) or (2) of the
Secretary's findings. Where the Secretary has determined that there is
reasonable cause to believe that a violation has occurred, the
Secretary's findings shall be accompanied by a preliminary order
providing the relief prescribed by subparagraph (E).
``(B)(i) After a preliminary order is issued under subparagraph
(A), the person alleged to have committed the violation involved or the
complainant may, within 30 days, file objections to the findings or
preliminary order, or both, and request a hearing on the record, except
that the filing of such objections shall not operate to stay any
reinstatement remedy contained in the preliminary order; and
``(ii) If a hearing described in clause (i) is not requested in a
timely manner as provided for under such clause, the preliminary order
involved shall be deemed a final order and not be subject to judicial
review.
``(C) If the Secretary has not issued findings under subparagraph
(A) within the 90-day period described in such subparagraph, and the
employee or representative of the employee files a request for a
hearing with the Secretary, the Secretary shall afford an opportunity
for a hearing on the record.
``(D) If requested under subparagraph (C), a hearing shall be
conducted by an administrative law judge and a recommended decision and
order issued expeditiously. The legal burdens of proof that prevail
under section 1221 of title 5, United States Code, shall govern
adjudication of violations under this subsection. The Secretary shall
issue a final order within 120 days of the issuance of the recommended
decision. In the interim, such proceedings may be terminated at any
time on the basis of a settlement agreement entered into by the
Secretary, the complainant, and the person alleged to have committed
the violation.
``(E) If, in response to a complaint filed under paragraph (3), the
Secretary determines that a violation of paragraph (1) or (2) has
occurred, the Secretary shall order as appropriate--
``(i) the person who committed such violation to correct
the violation;
``(ii) the person to reinstate the complainant to the
complainant's former position together with the compensation
(including back pay), terms, conditions, and privileges of the
position;
``(iii) compensatory damages; and
``(iv) exemplary damages.
Upon issuance of such an order, the Secretary may assess against the
person against whom the order is issued a sum equal to the aggregate
amount of all costs and expenses (including attorney's fees and expert
witness fees) reasonably incurred, as determined by the Secretary, by
the complainant for, or in connection with, the bringing of the
complaint upon which the order was issued, including costs and expenses
incurred upon review before a court of appeals.
``(F) In conducting an investigation or adjudication under this
paragraph, the provisions of section 8(b) shall apply.
``(5)(A) Any person adversely affected or aggrieved by a final
order issued under paragraph (4)(D) may obtain review of the order
before the United States court of appeals for the circuit in which the
violation, with respect to which the order was issued, occurred, or the
circuit in which such person resided on the date of such violation. The
petition for review must be filed within 60 days from the date on which
the Secretary's order was issued. Such review shall be in accordance
with the provisions of chapter 7 of title 5, United States Code. An
order of the Secretary subject to review under this subsection is not
subject to judicial review in a criminal or other civil proceeding. The
commencement of proceedings under this subsection shall not, unless
ordered by the court, operate as a stay of the order of the Secretary.
``(B) When a person has failed to comply with a final order or an
order of reinstatement issued under paragraph (4), the Secretary or the
person on behalf of whom the order was issued may file a civil action
in the United States district court for the district in which the
violation was found to occur in order to enforce such order. In actions
brought under this subparagraph, the district court shall have
jurisdiction to grant additional appropriate relief in light of the
noncompliance.''.
SEC. 5. RELATION TO ENFORCEMENT.
Section 17(j) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 666(j)) is amended by inserting before the period the following:
``, including the history of violation under section 11(c)''.
SEC. 6. EFFECTIVE DATE.
The amendments made by this Act shall take effect 90 days after the
date of enactment of this Act.
<all>
Introduced in Senate
Read twice and referred to the Committee on HELP.
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