Private Sector Whistleblower Protection Streamlining Act of 2012 - Sets forth whistleblower protections for private sector, state, and municipal employees who are retaliated or discriminated against by an employer for disclosing threats to public safety or violations of federal law. Authorizes a whistleblower who has been discharged or discriminated against by an employer to seek appropriate relief either by: (1) filing a complaint with the Secretary of Labor; or (2) bringing an action at law or equity in the appropriate U.S. district court.
Prohibits restrictions on whistleblowing and relief provided under this Act.
Establishes the Whistleblower Protection Office in the Department of Labor.
Makes conforming whistleblower amendments to the Occupational Safety and Health Act, the Federal Mine Safety and Health Act of 1977, the federal criminal code with respect to the Sarbanes-Oxley Act of 2002, and the Energy Reorganization Act of 1974.
Establishes in the Department of Labor an Administrative Review Board with jurisdiction and authority to decide appeals from administrative decisions and issue final agency decisions on behalf of the Secretary. Declares that this Board supersedes the one established by the Secretary pursuant to an administrative order.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6409 Introduced in House (IH)]
112th CONGRESS
2d Session
H. R. 6409
To streamline the administration of whistleblower protections for
private sector employees.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 13, 2012
Ms. Woolsey (for herself, Mr. George Miller of California, and Mr.
Kildee) introduced the following bill; which was referred to the
Committee on Education and the Workforce, and in addition to the
Committees on the Judiciary and Energy and Commerce, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To streamline the administration of whistleblower protections for
private sector employees.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Private Sector
Whistleblower Protection Streamlining Act of 2012''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--PRIVATE SECTOR EMPLOYMENT WHISTLEBLOWER PROTECTIONS
Sec. 101. Definitions.
Sec. 102. Protection against retaliation or discrimination.
Sec. 103. Enforcement.
Sec. 104. Restrictions on whistleblowing prohibited; confidentiality of
whistleblower.
Sec. 105. Nonpreemption.
Sec. 106. Effective date and rules.
TITLE II--WHISTLEBLOWER PROTECTION OFFICE
Sec. 201. Establishment.
Sec. 202. Other private sector whistleblower protections.
Sec. 203. Duties, powers, and functions.
TITLE III--CONFORMING AMENDMENTS
Sec. 301. Occupational Safety and Health Act of 1970.
Sec. 302. Federal Mine Safety and Health Act.
Sec. 303. Amendment to title 18 provisions related to the Sarbanes-
Oxley Act of 2002.
Sec. 304. Energy Reorganization Act of 1974.
TITLE IV--ADMINISTRATIVE REVIEW BOARD
Sec. 401. Administrative Review Board.
TITLE I--PRIVATE SECTOR EMPLOYMENT WHISTLEBLOWER PROTECTIONS
SEC. 101. DEFINITIONS.
As used in this title, the following definitions apply:
(1) Applicable law.--
(A) In general.--Subject to subparagraph (B), the
term ``applicable law'' means any Federal law, rule,
regulation, or Executive order, or a law, rule or
regulation of a State or political subdivision of a
State implementing any Federal law, rule or regulation,
relating to--
(i) health and health care;
(ii) environmental protection and resource
management;
(iii) food and drug safety (including
relating to the production, manufacturing, and
product safety of pharmaceuticals, medical
devices, and agricultural products);
(iv) transportation (including maritime);
(v) working conditions and benefits
(including social insurance such as workers
compensation and unemployment insurance);
(vi) building and construction-related
requirements, including safety requirements,
structural and engineering standards, and
building codes;
(vii) energy production, transportation,
storage, security, safety, and use (including
operations on the outer Continental Shelf (as
defined in section 2 of the Outer Continental
Shelf Lands Act (43 U.S.C. 1331)));
(viii) homeland security;
(ix) financial services (including banking,
insurance, accounting, commodities, and
securities);
(x) consumer protection (including consumer
product safety);
(xi) education;
(xii) antitrust, copyright, or patent;
(xiii) transactions involving the Federal
Government or use of Federal funds for grants,
contracts, cooperative agreements, or program
payments (including laws pertaining to fraud,
waste, or abuse);
(xiv) the assessment, collection, or any
other action regarding royalties, customs
duties, tariffs, taxes, or any other sources of
revenue due the Federal Government or its
entities; or
(xv) communications and telecommunications.
(B) Exceptions and exclusions.--Notwithstanding
subparagraph (A), the following Federal laws, rules,
and regulations shall not be considered applicable laws
for purposes of this Act:
(i) Civil rights laws administered by the
Equal Employment Opportunity Commission that
provide anti-retaliation protections for
employees exercising their rights under such
laws.
(ii) Whistleblower Protection Act (5 U.S.C.
1201 note) and laws administered by the Merit
Systems Protection Board.
(iii) Federal laws, rules, or regulations
that provide employees with the following
minimum anti-retaliation protections:
(I) At least 180 days to file a
complaint.
(II) A right to investigation and
adjudication by an independent hearing
officer, and an appeal to either an
administrative or judicial body.
(III) A right to a decision within
365 days of filing a complaint.
(IV) A right to remove to Federal
or State court any complaint that has
not received a decision after 210 days
from the filing of such complaint.
(V) A right to appropriate relief,
including injunctive relief,
compensatory and exemplary damages,
attorneys and experts fees, and costs.
(2) Employee.--The term ``employee'' means--
(A) any person receiving compensation from or whose
employment is subject to the control of an employer,
being considered for employment by the employer, or
previously employed by an employer, including any
person working as an associate;
(B) a person employed on a temporary or part-time
basis;
(C) a person employed by a contractor or
subcontractor of an employer; or
(D) a member of a professional membership
organization or other professional body (including
professional with institutional privileges or
appointments to an organization).
(3) Employer.--The term ``employer'' means one or more
individuals, partnerships, associations, corporations, legal
representatives, mutual companies, joint-stock companies,
trusts, unincorporated organizations, nongovernmental
organizations, trustees, professional membership organizations
(including a certification, disciplinary, or other professional
body), including the agents of the employer or a person acting
directly or indirectly in the interests of the employer,
engaged in for profit or nonprofit business affecting commerce,
including any subsidiaries, affiliates, and foreign operations
of any business that are subject to applicable law, any entity
of a State government or political subdivision of a State, or
any nongovernmental organization, and any contractor or
subcontractor of another employer.
(4) Manager.--The term ``manager'' means any person who has
direct, implied, apparent authority over the work performance
of an employee, or other supervisory relationship, directly or
indirectly through subordinates, or a person who has the
direct, implied, or apparent authority to recommend or to take
corrective action regarding the activities or policies of the
employer or to remedy a violation of an applicable law.
(5) Media.--The term ``media'' includes a member of the
print, radio, television, or internet media.
(6) Protected information.--The term ``protected
information'' means any information that an employee reasonably
believes evidences--
(A) a violation or the intent to commit a violation
by the employer of an applicable law;
(B) a hazard or potential danger to the health or
safety of any employee or to the public, including any
injury or illness; or
(C) fraud on the part of the employer in connection
with the implementation of or compliance with an
applicable law or a standard of practice established by
a professional standards setting body.
(7) Public body.--The term ``public body'' means Congress,
any State legislature or popularly elected local government
body, any Federal, State or local regulatory, administrative,
or public agency, authority, or instrumentality or combination
thereof, any Federal, State, or local law enforcement agency,
prosecutorial office, or police or peace officer, any Federal,
State or local court or other adjudicative body, or any
division, board, bureau, office, committee, or commission of
any such public bodies, or any organization or credentialing
body that establishes or enforces standards of professional
conduct.
(8) Reasonable cause to believe.--The term ``reasonable
cause to believe'', when used with respect to a temporary
reinstatement of a complaint, means that a claim in the
complaint appears to have merit.
(9) Reasonably believes.--The term ``reasonably believes'',
when used with respect to information that may be protected
information, means that a disinterested observer with a similar
level of education, skill, and experience and with knowledge of
the essential facts known to or readily ascertained by an
employee could conclude that such information is protected
information.
(10) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(11) Unfavorable personnel action.--The term ``unfavorable
personnel action'' means any action or inaction, whether taken,
recommended, or threatened, directly or indirectly unfavorable
to an employee, or the parent, sibling, spouse, or child of an
employee, by any employer, including the current employer of
the employee, including termination, performance appraisal or
action, discipline, reduction in pay or benefits, transfer,
reassignment, demotion, withholding of training or other
advancement opportunities, removal of resources, the denial,
suspension, or revocation of a security clearance,
investigation, peer review, law enforcement referral, or
prosecution, filing criminal or civil charges, change in
seniority rights, denial of advancement, denial of contract,
revocation of security credentials, blacklisting, listing on a
practitioner databank, violence or other physical action, any
other discrimination or other action that negatively affects
the terms or conditions, or privileges of employment of such
employee, or any other conduct that would dissuade a reasonable
person from engaging in activities protected by this title.
SEC. 102. PROTECTION AGAINST RETALIATION OR DISCRIMINATION.
(a) In General.--No employer shall take any unfavorable personnel
action against an employee if such action is due, in whole or in part,
to any lawful act done, perceived to have been done, or intended to be
done by the employee to--
(1) communicate or disclose, without restriction as to
place, form, motive, context, forum, or prior disclosure,
including disclosure in the ordinary course of the employee's
duties, to an employer or manager, public body, or the media,
or to the public, any protected information, where disclosure
is not specifically prohibited by law or because such
information is classified, in which case the information may be
disclosed to an official eligible by law to receive such
information and designated by the employer, or to a relevant
regulatory authority, law enforcement agency, or Inspector
General;
(2) take action to initiate, testify, cooperate, or
otherwise assist or participate in an investigation or
proceeding by a public body, or any proceeding authorized by
applicable law, or take action indicating that the employee is
about to testify, cooperate, or otherwise assist such an
investigation or proceeding;
(3) object to or refuse to participate in any activity,
policy, practice, or assigned task which the employee
reasonably believes is or would be in violation of an
applicable law or endangers the safety or health of the
employee or others;
(4) inform or discuss with co-workers of the employee,
experts or corroborating witnesses, a representative of the
employee, a safety and health or similar workplace committee,
or a family member of the employee, any protected information,
where disclosure is not prohibited by law or because it is
classified; or
(5) otherwise avail the employee of the rights set forth in
this title or other applicable law, or assist another employee
in asserting the rights available under this title.
(b) Broad Construction.--It is the sense of Congress that the
provisions of this section and section 101 should be construed broadly
to maximize this Act's remedial objectives.
SEC. 103. ENFORCEMENT.
(a) Complaint.--
(1) In general.--Subject to paragraph (2), an employee who
believes that he or she has been subjected to an unfavorable
personnel action by his or her employer in violation of section
102(a) may seek the relief described in this section by filing
a complaint with the Secretary as described in subsection (b)
not later than 180 days after the later of--
(A) the date on which such violation occurs, or in
the case of a violation that is a repeated violation,
the last date on which such violation occurs; or
(B) the date on which the employee knows or should
reasonably have known that such violation occurred, or
in the case of a violation that is a repeated
violation, the last date on which the employee knows or
should reasonably have known that such violation
occurred.
(2) Deadline exceptions.--Notwithstanding paragraph (1), a
complaint filed after the filing deadlines set forth in such
paragraph shall not deny the Secretary, administrative law
judge, or review board, as applicable, jurisdiction of such
complaint. The filing deadlines set forth in paragraph (1) may
be tolled by mutual agreement between the employee seeking to
file a complaint under this section and that employee's
employer.
(b) Department of Labor Complaint Procedure.--The Secretary shall
establish appropriate procedures to ensure complaints under this
section are processed efficiently, which shall provide for the
following:
(1) Notification of public body.--Upon determining that the
allegations made in a complaint under this section are credible
and prior to notifying an employer of the complaint, the
Secretary shall--
(A) notify the appropriate public body having
jurisdiction over the violations of applicable law
raised in the complaint; and
(B) if appropriate, coordinate with the appropriate
public body having jurisdiction regarding an
enforcement inspection.
(2) Election of procedure; exclusion.--
(A) Information to complainant.--Upon receipt of a
complaint under this section, the Secretary shall
inform the complainant (or any legal counsel retained
by complainant) of any authority that the Secretary has
that may be applicable to the complainant's situation.
(B) Efficiency of proceedings.--The Secretary
shall establish procedures to prevent duplicative
investigations actions brought under this title and any
provision of law listed in section 202. Such procedures
shall not limit a complainant's ability to bring a
complaint under authorities covering conduct not
protected under this title, nor a complainant's right
to proceed under any authority providing greater
coverage, due process protections, statute of
limitations, or remedies.
(C) Amendments to complaints.--The Secretary shall
establish rules and procedures to allow complainants to
amend their complaints, which shall extend the period
of time for the Secretary to issue a decision as
necessary.
(3) Decision to investigate or dismiss complaint.--The
Secretary shall, based on the criteria set forth in paragraph
(d)(1), either--
(A) make a decision to investigate the complaint
under paragraph (5); or
(B) make a final decision to dismiss the complaint
and inform the complainant of his or her right to
request a hearing under subparagraph (7) and the
process for filing such a request.
(4) Temporary relief during investigation.--The Secretary
shall, upon request of a complainant, determine, for the
purposes of issuing a temporary reinstatement order described
in this paragraph, whether there is reasonable cause to believe
that the complainant's complaint makes a prima facie showing
that any conduct described in paragraphs (1) through (5) of
section 102(a) was a contributing factor in the unfavorable
personnel action alleged in the complaint. If the Secretary
determines that there is reasonable cause to believe that the
complaint makes a prima facie showing, the Secretary shall
issue a temporary reinstatement order for the complainant while
the Secretary is conducting an investigation pursuant to
paragraph (5). If a hearing is not requested as provided for in
paragraph (7), such order shall be deemed a final order that is
not subject to judicial review during the pendency of the
complainant's administrative or judicial investigation,
hearing, or appeal. Upon a determination by the Secretary that
the respondent is not liable for retaliation under this title,
such reinstatement shall end.
(5) Investigation.--The Secretary shall investigate any
complaint not dismissed under paragraph (3). Before dismissing
such a complaint based on the inadequacy of the complaint, the
Secretary shall make a good faith effort to interview the
complainant to determine whether he or she has a claim. The
Secretary shall afford the employer (in this subsection
referred to as the ``respondent'') named in the complaint an
opportunity to submit to the Secretary a written response to
the complaint and to meet with a representative of the
Secretary to present statements from witnesses and other
evidence. The complainant shall be provided an opportunity to
meet with a representative of the Secretary and rebut any
statements or evidence provided to the Secretary by the
respondent named in the complaint. In conducting such
investigation, the Secretary may issue subpoenas requiring the
deposition of or the attendance and testimony of witnesses and
the production of any evidence, including any books, papers, or
documents, relating to the matter under investigation. The
Secretary shall complete the investigation and issue a decision
in accordance with the criteria set forth in subsection (d)(2)
not later than 90 days after the date of receipt of a
complaint. The Secretary shall notify, in writing, the
complainant and the respondent named in the complaint of the
Secretary's findings.
(6) Preliminary order following investigation.--If the
Secretary finds that a violation of section 102(a) has
occurred, the Secretary shall issue a preliminary order
providing the relief prescribed by paragraph (10). If a hearing
is not timely requested as provided for in paragraph (7), such
preliminary order shall be deemed a final order of the
Secretary that is not subject to judicial review.
(7) Hearing.--
(A) Request for hearing.--The complainant or
respondent may request a hearing on the record before
an administrative law judge--
(i) if the complainant or the respondent
objects to a temporary reinstatement order or
preliminary order for relief and files such
objections and request for a hearing not later
than 30 days after receiving notification of
such preliminary order;
(ii) if the complainant requests a hearing
not later than 30 days after receiving notice
of the Secretary's dismissal of his or her
complaint; or
(iii) if the Secretary has not issued a
decision under paragraph (5) within 90 days of
the receipt of the complaint.
The filing of objections under clause (i) shall not
operate to stay any reinstatement remedy contained in a
temporary reinstatement order issued pursuant to
paragraph (4) or a preliminary order issued pursuant to
paragraph (6).
(B) Procedures.--Such hearing request shall be
granted, and shall be conducted expeditiously and in
accordance with the section 554 of title 5, United
States Code. In conducting such proceeding, the
Secretary may issue subpoenas requiring the deposition
of or the attendance and testimony of witnesses and the
production of any evidence, including any books,
papers, or documents, relating to the matter under
consideration. A decision issued in accordance with the
criteria set forth in subsection (d)(2), shall be
issued not later than 90 days after the date on which a
hearing was requested under this paragraph. The parties
and the Secretary shall promptly be notified of the
decision. If the administrative law judge finds that a
violation of section 102(a) has occurred, the judge
shall issue a preliminary order providing the relief
prescribed by paragraph (10). If review under paragraph
(8) is not timely requested, such preliminary order
shall be deemed a final order of the Secretary that is
not subject to judicial review.
(8) Further administrative review.--Not later than 30 days
after the date of notification of a decision by an
administrative law judge under paragraph (7), the complainant
or the respondent alleged to have committed a violation of
section 102(a) may file objections to specified portions
thereof and request a further review by an administrative
review board designated by the Secretary under title IV (in
this section referred to as the ``review board''). The review
board's review shall be limited to determining whether the
decision of the administrative law judge was based upon
substantial evidence and in accordance with all applicable law.
The decision of the administrative law judge shall be stayed
pending the completion of further review, except for any order
of reinstatement which shall be stayed only upon motion. If
review is granted, the review board shall issue a final
decision and order affirming or reversing, in whole or in part,
the decision under review by not later than 90 days after
receipt of the administrative appeal. If it is determined that
a violation of section 102 has occurred, the review board shall
issue a final decision and order providing relief authorized
under paragraph (10). Such decision and order shall constitute
final agency action with respect to the matter appealed. If
judicial review under paragraph (12) is not timely requested,
such preliminary order shall be deemed a final order of the
Secretary that is not subject to judicial review.
(9) Settlement.--At any time before issuance of a final
order, a proceeding under this subsection may be terminated on
the basis of a settlement agreement approved by the Secretary,
administrative law judge, or review board conducting a hearing,
the complainant, and the employer alleged to have committed the
violation. The Secretary, administrative law judge, or review
board conducting a hearing may not accept any settlement that
contains conditions that are contrary to the public policy of
this title, including any restrictions on activity protected by
this Act, and the right to seek future employment with an
employer other than a specific employer named in the underlying
complaint without discrimination.
(10) Remedy.--If, in response to a complaint filed under
subsection (a)(1), the Secretary, administrative law judge, or
the review board determines that a violation of section 102(a)
has occurred, the Secretary, administrative law judge, or
review board shall order the respondent who committed such
violation to--
(A) take affirmative action to abate the violation;
(B) reinstate the complainant to his or her former
position and with the same seniority status together
with the compensation (including back pay and interest)
and restore the terms, rights, conditions, and
privileges associated with his or her employment, and
provide preference to the complainant to transfer to
any available position that provides equivalent or
better compensation, terms, conditions, and privileges
of employment for which the complainant is qualified;
(C) provide all appropriate relief, including
injunctive relief, compensatory, and exemplary damages;
(D) expunge all warnings, reprimands, or derogatory
references that have been placed in paper or electronic
records or databases of any type relating to the
actions by the complainant that gave rise to the
unfavorable personnel action, and, at the complainant's
direction, send a copy of the decision on the complaint
to any person whom the complainant reasonably believes
may have received such unfavorable information; and
(E) post appropriate public notice of the
violation.
If such an order is issued under this paragraph, the Secretary,
administrative law judge, or the review board, at the request
of the complainant, shall assess against the respondent against
whom the order is issued a sum equal to the aggregate amount of
all costs and expenses (including attorneys' and expert witness
fees) reasonably incurred, as determined by the Secretary,
administrative law judge, or the review board, by the
complainant for, or in connection with, the bringing the
complaint upon which the order was issued.
(11) Enforcement of order.--Whenever any respondent has
failed to comply with a final order issued under this
subsection, including a final order for temporary relief, the
Secretary or the complainant on whose behalf 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 to enforce such order. If both the Secretary and the
person on whose behalf the order was issued file such an action
for enforcement, the action of the Secretary shall take
precedence. In actions brought under this paragraph, the
district courts shall have jurisdiction to grant all
appropriate relief including, injunctive relief, compensatory
damages, and reasonable attorneys and expert witness fees. In
addition to enforcing the order, the court shall assess a
penalty of not greater than $10,000 a month against any person
who fails to comply with a final order issued under this
subsection, which shall be awarded to the party seeking
enforcement.
(12) Judicial review.--
(A) Appeal to court of appeals.--Any complainant or
respondent adversely affected or aggrieved by a final
order issued under this subsection for which review is
available, may obtain review of the order in the United
States Court of Appeals for the circuit in which the
violation, with respect to which the order was issued,
allegedly occurred or the circuit in which the
complainant resided on the date of such violation. The
petition for review shall be filed not later than 60
days after the date the final order of the Secretary,
administrative law judge, or the review board was
received. Review shall conform to chapter 7 of title 5,
United States Code. The commencement of proceedings
under this subparagraph shall not, unless ordered by
the court, operate as a stay of the order.
(B) Limitation on collateral attack.--An order of
the Secretary with respect to which review could have
been obtained under subparagraph (A) shall not be
subject to judicial review in any criminal or other
civil proceeding.
(13) Inaction by the secretary, administrative law judge,
or the review board.--If, after a hearing is requested pursuant
to paragraph (7) or a review is requested under paragraph (8),
the administrative law judge or the review board, respectively,
has not issued a final decision within 90 days after such
hearing or review is requested, the complainant may bring an
action at law or equity for de novo review in the appropriate
district court of the United States, as described in subsection
(c), which shall have jurisdiction over such an action without
regard to the amount in controversy, and which action shall, at
the request of either party to such action, be tried by the
court with a jury.
(c) District Court Procedure.--
(1) Dismissal.--The court shall not dismiss under
subsection (b)(6) or (e) of rule 12 of the Federal Rules of
Civil Procedure a complaint filed under this section unless
there are no conceivable grounds upon which a complainant may
prevail.
(2) Temporary relief.--The court shall, upon request of the
complainant, determine whether there is reasonable cause to
believe that the complainant makes the prima facie showing
described in subsection (b)(4), and if the court so determines,
issue an order providing for temporary reinstatement of the
complainant.
(3) Decision.--The complainant in a case brought under
subsection (b)(11) shall be entitled to a trial by jury. The
jury or the court shall determine whether a violation of
section 102(a) has occurred based upon the criteria set forth
in paragraph (d)(2).
(4) Relief.--The Court shall have jurisdiction to grant all
appropriate relief to a prevailing complainant available by law
or equity, including, injunctive relief, compensatory and
consequential damages, exemplary damages, reasonable attorneys
and expert witness fees, and court costs, and notification to
the appropriate public body having jurisdiction over the
violations of applicable law raised by the complainant.
(d) Criteria for Dismissal and for Decision.--
(1) Dismissal.--The Secretary shall dismiss a complaint
filed under this section unless that complainant alleges facts
in the complaint, supplemented as appropriate through
interviews, affidavits, or other relevant evidence, which could
conceivably support a prima facie claim that conduct described
in paragraphs (1) through (5) of section 102(a) was a
contributing factor in the unfavorable personnel action alleged
in the complaint. The Secretary shall not dismiss a complaint
without interviewing a complainant and providing him or her the
opportunity to provide additional evidence in support of his or
her prima facie claim. An administrative law judge or the
review board may refer to the Secretary for further
investigation any appeal from the Secretary's dismissal in
which the administrative law judge or review board determines
the complainant alleges facts that could conceivably support
such a prima facie claim.
(2) Decision.--The Secretary, administrative law judge,
administrative review board, or a court may determine that a
violation of section 102(a) has occurred only if the
complainant demonstrates that any conduct described in
paragraphs (1) through (5) of section 102(a) was a contributing
factor in the unfavorable personnel action alleged in the
complaint. Relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that the
respondent would have taken the same unfavorable personnel
action in the absence of the conduct described in paragraphs
(1) through (5) of section 102(a).
SEC. 104. RESTRICTIONS ON WHISTLEBLOWING PROHIBITED; CONFIDENTIALITY OF
WHISTLEBLOWER.
(a) Restrictions on Reporting Prohibited; Invalid Contract
Clauses.--No employer shall by contract, policy, or procedure prohibit
or restrict any person from engaging in any action for which a
protection against discrimination or retaliation is provided under
section 102. Any clause or provision of any contract for employment or
contract with an independent contractor for the provision of services
which purports to limit or restrain an individual from engaging in any
of the actions described in paragraphs (1) through (5) of section
102(a) as a condition of employment or a condition of the contract,
whether in force before, on, or after the date of enactment of this
title, shall be invalid and void as violative of public policy as
established by this title.
(b) Restrictions on Relief Provided Under This Act Prohibited;
Invalid Arbitration Clauses.--Any clause of any agreement between an
employer and an employee that requires arbitration of a claim arising
under this title, whether in force before, on, or after the date of
enactment of this Act, shall not be enforceable. An employee may not
submit to binding arbitration of a claim arising under this title
unless the employee's agreement is made after the employee becomes
aware of an unfavorable personnel action and such agreement is made in
direct contemplation of that specific unfavorable personnel action. No
agreement, settlement, or decision reached in arbitration shall be
enforced that violates the public policies established under this Act,
including any restriction or activity protected by this Act.
(c) Confidentiality.--The identity or identifying information of an
employee (in this subsection referred to as the ``complainant'') who
complains or discloses information as described in section 102(a) to a
public body shall remain confidential and shall not be disclosed by any
person except--
(1) upon the knowing written consent of the complainant;
(2) in the case in which there is imminent danger to health
or public safety or an imminent violation of criminal law; or
(3) as otherwise required by law.
An employee of a public body shall provide reasonable advance notice to
the affected employee if disclosure of that person's identity or
identifying information is to occur. An employee of a public body who
is grossly negligent in disclosing the identity of a complainant in
violation of this subsection may be considered to be acting outside
such employee's official duties.
SEC. 105. NONPREEMPTION.
(a) Effect on Other Laws.--Nothing in this title shall be construed
to preempt any law, rule, or regulation of a State or political
subdivision of a State and nothing in this title shall be construed or
interpreted to impair or diminish in any way the authority of any State
to enact and enforce any law which provides equivalent or greater
protections for employees engaging in conduct protected under this
title.
(b) Rights Retained by Whistleblowers.--Except as provided in
section 103(b)(2)(A), nothing in this title shall be construed to
diminish the rights, privileges, or remedies of any employee under any
Federal or State law, or under any collective bargaining agreement.
SEC. 106. EFFECTIVE DATE AND RULES.
This title shall take effect on the date of enactment of this Act,
and the procedures described in section 103 shall apply to complaints
and actions filed under this title after such date of enactment. The
Secretary shall establish interim final rules to implement this title
within 120 days of such date of enactment. The time periods for
processing complaints shall start once such interim rules are in
effect.
TITLE II--WHISTLEBLOWER PROTECTION OFFICE
SEC. 201. ESTABLISHMENT.
(a) Establishment and Purpose.--
(1) In general.--There is established in the Department of
Labor the Whistleblower Protection Office (in this title
referred to as ``the Office'') to administer the duties of the
Secretary under title I, the provisions of law listed in
section 202 of this Act, section 11(c) of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 660(c)), and the other
provisions of law assigned to the Office by the Secretary,
except that duties involving hearings and subsequent review and
legal representation shall not be assigned to the Office, but
may be assigned to other offices and agencies within the
Department of Labor.
(2) Construction.--Nothing in this title shall in any way
remove or transfer the authorities currently under the
jurisdiction of the Mine Safety and Health Administration and
the Federal Mine Safety and Health Review Commission.
(b) Administrator.--The Whistleblower Protection Office shall be
under the direction of an Administrator of Whistleblower Protection,
referred to in this title as ``the Administrator'', who shall be
appointed by the President with the advice and consent of the Senate.
The Administrator's compensation shall be set at level IV of the
Executive Schedule.
(c) Appointment of Personnel.--
(1) Appointment and compensation.--The Administrator may,
subject to the civil service laws, appoint such employees as
the Administrator considers necessary to carry out the
functions and duties of the Office, and shall fix their
compensation in accordance with the provisions of chapter 51
and subchapter III of chapter 53 of title 5, United States
Code.
(d) Transfer of Personnel; Budget.--
(1) Budgets and personnel.--All unexpended balances of
appropriations, personnel, property, records, obligations, and
commitments which are used primarily with respect to any
functions transferred under the provisions of paragraph (1) to
the Administrator shall be transferred to the Office, as
appropriate. The transfer of personnel pursuant to this
paragraph shall be without reduction in classification or
compensation for 1 year after such transfer, except that the
Administrator shall have full authority to assign personnel
during such 1-year period in order to efficiently carry out
functions transferred to the Administrator under this title.
(2) Continuation.--All orders, decisions, determinations,
rules, and regulations, (A) which have been issued, made,
granted, or allowed to become effective in the exercise of
functions which are transferred under this subsection; and (B)
which are in effect at the time this section takes effect,
shall continue in effect according to their terms until
modified, terminated, superseded, set aside, revoked, or
repealed by the Secretary, the Administrator, or other
authorized officials, by any court of competent jurisdiction,
or by operation of law. The provisions of this subsection shall
not affect any proceedings pending at the time this title takes
effect. The provisions of this section shall not affect suits
commenced prior to the date this section takes effect and in
all such suits proceedings shall be had, appeals taken, and
judgments rendered, in the same manner and effect as if this
section had not been enacted.
(e) Coordination.--The Office shall, where appropriate, take all
the steps necessary, including entering into memorandum of
understanding, to coordinate investigation and adjudication of
retaliation claims under this Act with the Occupational Safety and
Health Administration and other appropriate public bodies having
jurisdiction over the enforcement of the underlying violations of
applicable law.
(f) Principal Office.--The principal location of the Office shall
be in the District of Columbia, but the Administrator or a duly
authorized representative may exercise any or all of the
Administrator's powers in any place.
SEC. 202. OTHER PRIVATE SECTOR WHISTLEBLOWER PROTECTIONS.
(a) Provisions To Be Enforced in Accordance With This Act.--
Notwithstanding any procedures set forth in the following provisions of
law, such provisions shall, after the effective date of this Act, be
administered in accordance with this Act by the Office established by
this title:
(1) Sections 20109, 30171, 31105, 42121, and 60129 of title
49, United States Code.
(2) Section 211 of the Asbestos Hazard Emergency Response
Act of 1986 (15 U.S.C. 2651).
(3) Section 7 of the International Safe Container Act (46
U.S.C. 1506).
(4) Section 1450 of the Safe Drinking Water Act of 1974 (42
U.S.C. 300j-9i).
(5) Section 507 of the Federal Water Pollution Control Act,
Amendments of 1972 (33 U.S.C. 1367).
(6) Section 40 of the Consumer Product Safety Act (15
U.S.C. 2087).
(7) Section 23(a)(1) through (3) of the Toxic Substances
Control Act (15 U.S.C. 2622).
(8) Section 7001 of the Solid Waste Disposal Act of 1976
(42 U.S.C. 6971).
(9) Section 322 of the Clean Air Act, amendments of 1977
(42 U.S.C. 7622).
(10) Section 10 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9610).
(11) Section 211 of the Energy Reorganization Act of 1978
(42 U.S.C. 5851).
(12) Section 806 of the Sarbanes-Oxley Act of 2002 (18
U.S.C. 1514A).
(13) Section 1413 of the Implementing Recommendations of
the 9/11 Commission Act of 2007 (6 U.S.C. 1142).
(14) Section 18C of the Fair Labor Standards Act of 1938
(29 U.S.C. 218C).
(15) Section 21F of the Securities Exchange Act of 1934 (15
U.S.C. 78u-6).
(16) Section 23 of the Commodity Exchange Act (7 U.S.C.
26).
(17) The Seaman's Protection Act (46 U.S.C. 2114).
(18) Section 1012 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 399d).
(b) Clarification.--Any protections, rights, privileges, or
remedies available to a covered employee under the provisions of law
described in subsection (a), which are additional to and not
inconsistent with those set forth in section 102, shall not be limited
by subsection (a). To the extent that any such provisions are
inconsistent with section 102, such provisions shall, at the request of
a complainant, be given effect over any inconsistent provision in
section 102.
SEC. 203. DUTIES, POWERS, AND FUNCTIONS.
(a) Subpoenas, Evidence, and Testimony.--In carrying out its duties
under title I of this Act or under any of the provisions of law
referred to by section 202, the Administrator may issue subpoenas
requiring the deposition of or the attendance and testimony of
witnesses and the production of any evidence, including any books,
papers, or documents, relating to any matter under investigation by the
Commission, or required in connection with a hearing.
(b) Monitoring of Complaints Removed to Federal District Court.--
The Administrator shall review the decision in each action removed to a
district court of the United States under section 103(b)(11) to
determine whether an employer violated an applicable law, and upon
determining that an applicable law was so violated, notify the
appropriate public body having jurisdiction over the violation of the
applicable law regarding such violation.
(c) Rules.--The Secretary is authorized to prescribe such rules as
are necessary for the orderly transaction of the proceedings of the
Office and for the implementation of the programs of the Office.
(d) Effective Date.--The Administrator shall begin to carry out the
duties and exercise the powers set forth in this title on the date that
is 1 year after the date of enactment of this Act, or such earlier date
as the Secretary may determine that the Office is sufficiently
established, staffed, and funded.
(e) Annual Reports.--
(1) Administrator.--The Administrator shall annually--
(A) transmit a report to Congress detailing the
activities of the Office during the previous year,
including information relating to the number and nature
of complaints filed, the number of merit and non-merit
cases, the number of such complaints disposed of
without investigation, the number of complaints that
have not received an adjudication within the time
period required under this Act and the duration of the
delay for such complaints, investigations conducted,
orders issued, and statistics related to settlements;
and
(B) make available the full text of all settlements
approved by the Office, following the elimination from
such text of all personal identifying information about
the complainant, the employer, and any other party.
(2) Approved settlements.--No settlement approved by the
Office may prohibit the disclosure described in paragraph
(1)(B).
(f) Study on Transition to Whistleblower Protection Office.--
(1) One year after enactment.--Not later than 6 months
after the date of enactment of this Act, the Comptroller
General shall initiate a review of the Secretary's progress in
establishing the Whistleblower Protection Office as required
under section 201, and not later than 1 year after such date of
enactment, provide a report to the Congress on the
effectiveness of the transition, including--
(A) whether existing funds, staff, information
systems, and authorities have been properly transferred
to the Office and make recommendations as necessary;
and
(B) the status of cases currently before the
Office, the progress made by the Office in eliminating
the current backlog of whistleblower cases, and the
plans of the Office for ensuring that the backlog is
eliminated.
(2) Two years after enactment.--Not later than 2 years
after such date of enactment, the Comptroller General shall
report to Congress on--
(A) whether the Office's operational procedures
have been established, whether necessary regulations
have been promulgated, whether there are adequate
internal controls, whether program outcomes are being
effectively measured, whether previous recommendations
regarding this program have been effectively
implemented, whether investigative and supervisory
staff have received necessary training and equipment,
whether the Office is fulfilling its mission to fairly,
efficiently, and effectively investigate whistleblower
complaints, assure timely enforcement, and to fully
implement the statutory authorities assigned to the
Office; and
(B) the information described in paragraph (1)(B).
TITLE III--CONFORMING AMENDMENTS
SEC. 301. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970.
(a) Employee Actions.--Section 11(c)(1) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 660(c)(1)) is amended--
(1) by striking ``discharge'' and all that follows through
``because such'' and inserting the following: ``discharge or
cause to be discharged, or in any manner discriminate against
or cause to be discriminated against, any employee because--
``(A) such'';
(2) by striking ``this Act or has'' and inserting the
following: ``this Act;
``(B) such employee has'';
(3) by striking ``in any such proceeding or because of the
exercise'' and inserting the following: ``before Congress or in
any Federal or State proceeding related to safety or health;
``(C) such employee has refused to violate any provision of
this Act; or
``(D) of the exercise''; and
(4) by inserting before the period at the end the
following: ``, including the reporting of any injury, illness,
or unsafe condition to the employer, agent of the employer,
safety and health committee involved, or employee safety and
health representative involved''.
(b) Prohibition of Retaliation.--Section 11(c) of such Act (29
U.S.C. 660(c)) is amended by striking paragraph (2) and inserting the
following:
``(2) Prohibition of retaliation.--(A) No person shall
discharge, or cause to be discharged, or in any manner
discriminate against, or cause to be discriminated against, an
employee for refusing to perform the employee's duties if the
employee has a reasonable apprehension that performing such
duties would result in serious injury to, or serious impairment
of the health of, the employee or other employees.
``(B) For purposes of subparagraph (A), the circumstances
causing the employee's good-faith belief that performing such
duties would pose a safety or health hazard shall be of such a
nature that a reasonable person, under the circumstances
confronting the employee, would conclude that there is such a
hazard. In order to qualify for protection under this
paragraph, the employee, when practicable, shall have
communicated or attempted to communicate the safety or health
concern to the employer and have not received from the employer
a response reasonably calculated to allay such concern.''.
(c) Procedure.--Section 11(c) of such Act (29 U.S.C. 660(c)) is
amended by striking paragraph (3) and inserting the following:
``(3) Complaint.--Any employee who believes that the
employee has been discharged, disciplined, or otherwise
discriminated against by any person in violation of paragraph
(1) or (2) may seek relief for such violation by filing a
complaint with the Secretary under paragraph (5).
``(4) Statute of limitations.--
``(A) In general.--An employee may take the action
permitted by paragraph (3)(A) not later than 180 days
after the later of--
``(i) the date on which an alleged
violation of paragraph (1) or (2) occurs; or
``(ii) the date on which the employee knows
or should reasonably have known that such
alleged violation occurred.
``(B) Repeat violation.--Except in cases when the
employee has been discharged, a violation of paragraph
(1) or (2) shall be considered to have occurred on the
last date an alleged repeat violation occurred.
``(5) Investigation.--
``(A) In general.--An employee may, within the time
period required under paragraph (4)(B), file a
complaint with the Secretary alleging a violation of
paragraph (1) or (2). If the complaint alleges a prima
facie case, the Secretary shall conduct an
investigation of the allegations in the complaint,
which--
``(i) shall include--
``(I) interviewing the complainant;
``(II) providing the respondent an
opportunity to--
``(aa) submit to the
Secretary a written response to
the complaint; and
``(bb) meet with the
Secretary to present statements
from witnesses or provide
evidence; and
``(III) providing the complainant
an opportunity to--
``(aa) receive any
statements or evidence provided
to the Secretary;
``(bb) meet with the
Secretary; and
``(cc) rebut any statements
or evidence; and
``(ii) may include issuing subpoenas for
the purposes of such investigation.
``(B) Decision.--Not later than 90 days after the
filing of the complaint, the Secretary shall--
``(i) determine whether reasonable cause
exists to believe that a violation of paragraph
(1) or (2) has occurred; and
``(ii) issue a decision granting or denying
relief.
``(6) Preliminary order following investigation.--If, after
completion of an investigation under paragraph (5)(A), the
Secretary finds reasonable cause to believe that a violation of
paragraph (1) or (2) has occurred, the Secretary shall issue a
preliminary order providing relief authorized under paragraph
(14) at the same time the Secretary issues a decision under
paragraph (5)(B). If a de novo hearing is not requested within
the time period required under paragraph (7)(A)(i), such
preliminary order shall be deemed a final order of the
Secretary and is not subject to judicial review.
``(7) Hearing.--
``(A) Request for hearing.--
``(i) In general.--A de novo hearing on the
record before an administrative law judge may
be requested--
``(I) by the complainant or
respondent within 30 days after
receiving notification of a decision
granting or denying relief issued under
paragraph (5)(B) or paragraph (6)
respectively;
``(II) by the complainant within 30
days after the date the complaint is
dismissed without investigation by the
Secretary under paragraph (5)(A); or
``(III) by the complainant within
120 days after the date of filing the
complaint, if the Secretary has not
issued a decision under paragraph
(5)(B).
``(ii) Reinstatement order.--The request
for a hearing shall not operate to stay any
preliminary reinstatement order issued under
paragraph (6).
``(B) Procedures.--
``(i) In general.--A hearing requested
under this paragraph shall be conducted
expeditiously and in accordance with rules
established by the Secretary for hearings
conducted by administrative law judges.
``(ii) Subpoenas; production of evidence.--
In conducting any such hearing, the
administrative law judge may issue subpoenas.
The respondent or complainant may request the
issuance of subpoenas that require the
deposition of, or the attendance and testimony
of, witnesses and the production of any
evidence (including any books, papers,
documents, or recordings) relating to the
matter under consideration.
``(iii) Decision.--The administrative law
judge shall issue a decision not later than 90
days after the date on which a hearing was
requested under this paragraph and promptly
notify, in writing, the parties and the
Secretary of such decision, including the
findings of fact and conclusions of law. If the
administrative law judge finds that a violation
of paragraph (1) or (2) has occurred, the judge
shall issue an order for relief under paragraph
(14). If review under paragraph (8) is not
timely requested, such order shall be deemed a
final order of the Secretary that is not
subject to judicial review.
``(8) Administrative appeal.--
``(A) In general.--Not later than 30 days after the
date of notification of a decision and order issued by
an administrative law judge under paragraph (7), the
complainant or respondent may file, with objections, an
administrative appeal with an administrative review
body designated by the Secretary under title IV of the
Private Sector Whistleblower Protection Streamlining
Act of 2012 (in this subsection referred to as the
`review board').
``(B) Standard of review.--In reviewing the
decision and order of the administrative law judge, the
review board shall affirm the decision and order if it
is determined that the factual findings set forth
therein are supported by substantial evidence and the
decision and order are made in accordance with
applicable law.
``(C) Decisions.--If the review board grants an
administrative appeal, the review board shall issue a
final decision and order affirming or reversing, in
whole or in part, the decision under review by not
later than 90 days after receipt of the administrative
appeal. If it is determined that a violation of
paragraph (1) or (2) has occurred, the review board
shall issue a final decision and order providing relief
authorized under paragraph (14). Such decision and
order shall constitute final agency action with respect
to the matter appealed.
``(9) Settlement in the administrative process.--
``(A) In general.--At any time before issuance of a
final order, an investigation or proceeding under this
subsection may be terminated on the basis of a
settlement agreement entered into by the parties.
``(B) Public policy considerations.--Neither the
Secretary, an administrative law judge, nor the review
board conducting a hearing under this subsection shall
accept a settlement that contains conditions
conflicting with the rights protected under this Act or
that are contrary to public policy, including a
restriction on a complainant's right to future
employment with employers other than the specific
employers named in a complaint.
``(10) Inaction by the review board or administrative law
judge.--
``(A) In general.--The complainant may bring a de
novo action described in subparagraph (B) if--
``(i) an administrative law judge has not
issued a decision and order within the 90-day
time period required under paragraph
(7)(B)(iii); or
``(ii) the review board has not issued a
decision and order within the 90-day time
period required under paragraph (8)(C).
``(B) De novo action.--Such de novo action may be
brought at law or equity in the United States district
court for the district where a violation of paragraph
(1) or (2) allegedly occurred or where the complainant
resided on the date of such alleged violation. The
court shall have jurisdiction over such action without
regard to the amount in controversy and to order
appropriate relief under paragraph (14). Such action
shall, at the request of either party to such action,
be tried by the court with a jury.
``(11) Judicial review.--
``(A) Timely appeal to the court of appeals.--Any
party adversely affected or aggrieved by a final
decision and order issued under this subsection may
obtain review of such decision and order in the United
States Court of Appeals for the circuit where the
violation, with respect to which such final decision
and order was issued, allegedly occurred or where the
complainant resided on the date of such alleged
violation. To obtain such review, a party shall file a
petition for review not later than 60 days after the
final decision and order was issued. Such review shall
conform to chapter 7 of title 5, United States Code.
The commencement of proceedings under this subparagraph
shall not, unless ordered by the court, operate as a
stay of the final decision and order.
``(B) Limitation on collateral attack.--An order
and decision with respect to which review may be
obtained under subparagraph (A) shall not be subject to
judicial review in any criminal or other civil
proceeding.
``(12) Enforcement of order.--If a respondent fails to
comply with an order issued under this subsection, the
Secretary or the complainant on whose behalf the order was
issued may file a civil action for enforcement in the United
States district court for the district in which the violation
was found to occur to enforce such order. If both the Secretary
and the complainant file such action, the action of the
Secretary shall take precedence. The district court shall have
jurisdiction to grant all appropriate relief described in
paragraph (14).
``(13) Burdens of proof.--
``(A) Criteria for determination.--In making a
determination or adjudicating a complaint pursuant to
this subsection, the Secretary, administrative law
judge, review board, or a court may determine that a
violation of paragraph (1) or (2) has occurred only if
the complainant demonstrates that any conduct described
in paragraph (1) or (2) with respect to the complainant
was a contributing factor in the adverse action alleged
in the complaint.
``(B) Prohibition.--Notwithstanding subparagraph
(A), a decision or order that is favorable to the
complainant shall not be issued in any administrative
or judicial action pursuant to this subsection if the
respondent demonstrates by clear and convincing
evidence that the respondent would have taken the same
adverse action in the absence of such conduct.
``(14) Relief.--
``(A) Order for relief.--If the Secretary,
administrative law judge, review board, or a court
determines that a violation of paragraph (1) or (2) has
occurred, the Secretary or court, respectively, shall
have jurisdiction to order all appropriate relief,
including injunctive relief and compensatory and
exemplary damages, including--
``(i) affirmative action to abate the
violation;
``(ii) reinstatement without loss of
position or seniority, and restoration of the
terms, rights, conditions, and privileges
associated with the complainant's employment,
including opportunities for promotions to
positions with equivalent or better
compensation for which the complainant is
qualified;
``(iii) compensatory and consequential
damages sufficient to make the complainant
whole, (including back pay, prejudgment
interest, and other damages);
``(iv) expungement of all warnings,
reprimands, or derogatory references that have
been placed in paper or electronic records or
databases of any type relating to the actions
by the complainant that gave rise to the
unfavorable personnel action, and, at the
complainant's direction, transmission of a copy
of the decision on the complaint to any person
whom the complainant reasonably believes may
have received such unfavorable information; and
``(v) notwithstanding section 9, civil
penalties not to exceed $100,000, which may be
assessed by the Secretary as part of a
preliminary order or by the administrative law
judge following a request by the Secretary.
``(B) Attorneys' fees and costs.--If the Secretary
or an administrative law judge, review board, or court
grants an order for relief under subparagraph (A), the
Secretary, administrative law judge, review board, or
court, respectively, shall assess, at the request of
the employee against the employer--
``(i) reasonable attorneys' fees; and
``(ii) costs (including expert witness
fees) reasonably incurred, as determined by the
Secretary, administrative law judge, review
board, or court, respectively, in connection
with bringing the complaint upon which the
order was issued.
``(15) Procedural rights.--The rights and remedies
provided for in this subsection may not be waived by any
agreement, policy, form, or condition of employment, including
by any pre-dispute arbitration agreement or collective
bargaining agreement.
``(16) Savings.--Nothing in this subsection shall be
construed to diminish the rights, privileges, or remedies of
any employee who exercises rights under any Federal or State
law or common law, or under any collective bargaining
agreement.
``(17) Election of venue.--
``(A) In general.--An employee of an employer who
is located in a State that has a State plan approved
under section 18 may file a complaint alleging a
violation of paragraph (1) or (2) by such employer
with--
``(i) the Secretary under paragraph (5); or
``(ii) a State plan administrator in such
State.
``(B) Referrals.--If--
``(i) the Secretary receives a complaint
pursuant to subparagraph (A)(i), the Secretary
shall not refer such complaint to a State plan
administrator for resolution; or
``(ii) a State plan administrator receives
a complaint pursuant to subparagraph (A)(ii),
the State plan administrator shall not refer
such complaint to the Secretary for
resolution.''.
(d) Relation to Enforcement.--Section 17(j) of such Act (29 U.S.C.
666) is amended by inserting before the period the following: ``,
including the history of violations under section 11(c)''.
(e) Effective Date.--
(1) General rule.--Except as provided in paragraph (1), the
amendments made by this section shall take effect not later
than 90 days after the date of the enactment of this Act.
(2) Exception for states and political subdivisions.--
Notwithstanding paragraph (1), a State that has a State plan
approved under section 18 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 667) shall amend its State plan to
conform with the requirements of the amendments made by this
section not later than 12 months after the date of enactment of
this Act, except that if the State's legislature is not in
session during the 12-month period beginning on the date of the
enactment of this Act, the Secretary of Labor may extend the
period for the State to make such amendments to its State plan
by not more than 12 months. Such amendments to the State plan
shall take effect not later than 90 days after the adoption of
such amendments by such State.
SEC. 302. FEDERAL MINE SAFETY AND HEALTH ACT.
Section 105(c) of the Federal Mine Safety and Health Act of 1977
(30 U.S.C. 815(c)) is amended to read as follows:
``(c) Protection From Retaliation.--
``(1) Retaliation prohibited.--
``(A) Retaliation for complaint or testimony.--No
person shall discharge or in any manner discriminate
against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner or other
employee of an operator, representative of miners, or
applicant for employment (including the spouse,
sibling, child, or parent of such miner or employee, if
such individual is employed or is applying for
employment at a mine under the control of the
operator), because--
``(i) such miner or other employee,
representative, or applicant for employment--
``(I) has filed or made a
complaint, is about to file or make a
complaint (or is perceived to have
filed or be about to file such a
complaint), including a complaint
notifying the operator or the
operator's agent, or the representative
of the miners at the coal or other mine
of an alleged danger or safety or
health violation in a coal or other
mine;
``(II) instituted or caused to be
instituted, or is about to institute or
cause to be instituted (or is perceived
to have instituted or be about to
institute such a complaint), any
proceeding under or related to this Act
or has testified or is about to testify
in any such proceeding or because of
the exercise by such miner or other
employee, representative, or applicant
for employment on behalf of him or
herself or others of any right afforded
by this Act, or has reported any injury
or illness to an operator, or agent;
``(III) has testified or is about
to testify before Congress or any
Federal or State proceeding related to
safety or health in a coal or other
mine; or
``(IV) refused to violate any
provision of this Act, including any
mandatory health and safety standard or
regulation; or
``(ii) such miner is the subject of medical
evaluations and potential transfer under a
standard published pursuant to section 101.
``(B) Retaliation for refusal to perform duties.--
``(i) In general.--No person shall
discharge or in any manner discriminate against
a miner or other employee of an operator for
refusing to perform the miner's or other
employee's duties if the miner or other
employee has a good-faith and reasonable belief
that performing such duties would pose a safety
or health hazard to the miner or other employee
or to any other miner or employee.
``(ii) Standard.--For purposes of clause
(i), the circumstances causing the miner's or
other employee's good-faith belief that
performing such duties would pose a safety or
health hazard shall be of such a nature that a
reasonable person, under the circumstances
confronting the miner or other employee, would
conclude that there is such a hazard. In order
to qualify for protection under this paragraph,
the miner or other employee, when practicable,
shall have communicated or attempted to
communicate the safety or health concern to the
operator and have not received from the
operator a response reasonably calculated to
allay such concern.
``(2) Complaint.--Any miner or other employee or
representative of miners or applicant for employment who
believes that he or she has been discharged, disciplined, or
otherwise discriminated against by any person in violation of
paragraph (1) may file a complaint with the Secretary alleging
such discrimination not later than 180 days after the later
of--
``(A) the last date on which an alleged violation
of paragraph (1) occurs; or
``(B) the date on which the miner or other employee
or representative knows or should reasonably have known
that such alleged violation occurred, or in the case of
a violation that is a repeated violation, the last date
on which the whistleblower knows or should reasonably
have known that such violation occurred.
``(3) Investigation and hearing.--
``(A) Commencement of investigation and initial
determination.--Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the
respondent, and shall commence an investigation within
15 days of the Secretary's receipt of the complaint,
and, as soon as practicable after commencing such
investigation, make the determination required under
subparagraph (B) regarding the reinstatement of the
miner or other employee.
``(B) Reinstatement.--If the Secretary finds that
such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of
the Secretary, shall order the immediate reinstatement
of the miner or other employee until there has been a
final Commission order disposing of the underlying
complaint of the miner or other employee. If either the
Secretary or the miner or other employee pursues the
underlying complaint, such reinstatement shall remain
in effect until the Commission has disposed of such
complaint on the merits, regardless of whether the
Secretary pursues such complaint by filing a complaint
under subparagraph (D) or the miner or other employee
pursues such complaint by filing an action under
paragraph (4). If neither the Secretary nor the miner
or other employee pursues the underlying complaint
within the periods specified in paragraph (4), such
reinstatement shall remain in effect until such time as
the Commission may, upon motion of the operator and
after providing notice and an opportunity to be heard
to the parties, vacate such complaint for failure to
prosecute.
``(C) Investigation.--Such investigation shall
include interviewing the complainant and--
``(i) providing the respondent an
opportunity to submit to the Secretary a
written response to the complaint and to
present statements from witnesses or provide
evidence; and
``(ii) providing the complainant an
opportunity to receive any statements or
evidence provided to the Secretary and to
provide additional information or evidence, or
rebut any statements or evidence.
``(D) Action by the secretary.--If, upon such
investigation, the Secretary determines that the
provisions of this subsection have been violated, the
Secretary shall immediately file a complaint with the
Commission, with service upon the alleged violator and
the miner or other employee, applicant for employment,
and representative of miners alleging such
discrimination or interference and propose an order
granting appropriate relief.
``(E) Action of the commission.--The Commission
shall afford an opportunity for a hearing on the record
(in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a)(3) of
such section) and thereafter shall issue an order,
based upon findings of fact, affirming, modifying, or
vacating the Secretary's proposed order, or directing
other appropriate relief. Such order shall become final
30 days after its issuance. The complaining miner or
other employee, representative, or applicant for
employment may present additional evidence on his or
her own behalf during any hearing held pursuant to this
paragraph.
``(F) Relief.--The Commission shall have authority
in such proceedings to require a person committing a
violation of this subsection to take such affirmative
action to abate the violation and prescribe a remedy as
the Commission considers appropriate, including--
``(i) the rehiring or reinstatement of the
miner or other employee with back pay and
interest and without loss of position or
seniority, and restoration of the terms,
rights, conditions, and privileges associated
with the complainant's employment;
``(ii) any other compensatory and
consequential damages sufficient to make the
complainant whole, and exemplary damages where
appropriate; and
``(iii) expungement of all warnings,
reprimands, or derogatory references that have
been placed in paper or electronic records or
databases of any type relating to the actions
by the complainant that gave rise to the
unfavorable personnel action, and, at the
complainant's direction, transmission of a copy
of the decision on the complaint to any person
whom the complainant reasonably believes may
have received such unfavorable information.
``(4) Notice to and action of complainant.--
``(A) Notice to complainant.--Not later than 90
days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in writing,
the miner or other employee, applicant for employment,
or representative of miners of his determination
whether a violation has occurred.
``(B) Action of complainant.--If the Secretary,
upon investigation, determines that the provisions of
this subsection have not been violated, the complainant
shall have the right, within 30 days after receiving
notice of the Secretary's determination, to file an
action in his or her own behalf before the Commission,
charging discrimination or interference in violation of
paragraph (1).
``(C) Hearing and decision.--The Commission shall
afford an opportunity for a hearing on the record (in
accordance with section 554 of title 5, United States
Code, but without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based
upon findings of fact, dismissing or sustaining the
complainant's charges and, if the charges are
sustained, granting such relief as it deems appropriate
as described in paragraph (3)(D). Such order shall
become final 30 days after its issuance.
``(5) Burden of proof.--In adjudicating a complaint
pursuant to this subsection, the Commission may determine that
a violation of paragraph (1) has occurred only if the
complainant demonstrates that any conduct described in
paragraph (1) with respect to the complainant was a
contributing factor in the adverse action alleged in the
complaint. A decision or order that is favorable to the
complainant shall not be issued pursuant to this subsection if
the respondent demonstrates by clear and convincing evidence
that the respondent would have taken the same adverse action in
the absence of such conduct.
``(6) Attorneys' fees.--Whenever an order is issued
sustaining the complainant's charges under this subsection, a
sum equal to the aggregate amount of all costs and expenses,
including attorney's fees, as determined by the Commission to
have been reasonably incurred by the complainant for, or in
connection with, the institution and prosecution of such
proceedings shall be assessed against the person committing
such violation. The Commission shall determine whether such
costs and expenses were reasonably incurred by the complainant
without reference to whether the Secretary also participated in
the proceeding.
``(7) Expedited proceedings; judicial review.--Proceedings
under this subsection shall be expedited by the Secretary and
the Commission. Any order issued by the Commission under this
subsection shall be subject to judicial review in accordance
with section 106. Violations by any person of paragraph (1)
shall be subject to the provisions of sections 108 and
110(a)(4).
``(8) Procedural rights.--The rights and remedies provided
for in this subsection may not be waived by any agreement,
policy, form, or condition of employment, including by any pre-
dispute arbitration agreement or collective bargaining
agreement.
``(9) Savings.--Nothing in this subsection shall be
construed to diminish the rights, privileges, or remedies of
any employee who exercises rights under any Federal or State
law or common law, or under any collective bargaining
agreement.''.
SEC. 303. AMENDMENT TO TITLE 18 PROVISIONS RELATED TO THE SARBANES-
OXLEY ACT OF 2002.
Section 1514A(a) of title 18, United States Code, is amended by
inserting ``, whether employed inside or outside the United States,''
after ``any other manner discriminate against an employee''.
SEC. 304. ENERGY REORGANIZATION ACT OF 1974.
Section 211(a)(2) of the Energy Reorganization Act of 1974 (42
U.S.C. 5851(a)(2)) is amended by redesignating subparagraphs (F) and
(G) as subparagraphs (G) and (H), respectively, and inserting after
subparagraph (E) the following:
``(F) a Federal agency to the extent such agency is
a licensee or applicant for a license under
subparagraph (A) or (B);''.
TITLE IV--ADMINISTRATIVE REVIEW BOARD
SEC. 401. ADMINISTRATIVE REVIEW BOARD.
(a) Establishment.--Not later than 90 days after the date of
enactment of this Act, there is established an Administrative Review
Board (in this section referred to as the ``Board'') within the
Department of Labor which shall be composed of 5 members appointed by
the Secretary, not more than 3 of whom may be adherents of the same
political party. No member of the Board may hold another office or
position in the Government of the United States, except as otherwise
provided by law or at the direction of the Secretary.
(b) Appointment.--The members of the Board shall be individuals
who, by ability, background, training, or experience are especially
qualified to carry out the functions of the Board. The Secretary shall
appoint these members in consultation with the Chairs and Ranking
Members of the House Committee on Education and the Workforce and the
Senate Committee on Health, Education, Labor, and Pensions.
(c) Quorum; Panels.--For the purposes of carrying out its functions
under this Act and any other area in which the Secretary delegates his
or her authority, 3 members of the Board shall constitute a quorum and
official actions can be taken only on the affirmative vote of 2
members. The Board may delegate its authority to panels comprised of
three members of the Board. Any party aggrieved by a decision of a
panel of the Board may, within 10 days after the date of entry of the
decision, petition the full Board for review of the panel's decision.
Upon an affirmative vote of the majority of the Board, the petition for
hearing by the full Board shall be granted.
(d) Terms of Office; Filling Vacancies; Removal.--
(1) Terms.--Each member shall be appointed to a single 5-
year term, which shall be staggered so that no more than one
vacancy is scheduled per year. The initial 5 members shall be
appointed to terms of the following lengths: 1 year, 2 years, 3
years, 4 years, and 5 years.
(2) Vacancies.--A member appointed to fill a vacancy
occurring before the end of a term of office for the member's
predecessor serves for the remainder of that term. Any
appointment is subject to the terms of subsection (b). A member
appointed initially to a 5-year term, may not be reappointed to
another 5-year term, but members appointed to fill a vacancy
may be appointed to their own full 5-year term. Upon expiration
of his or her term, the member may continue to serve until a
successor is appointed and has qualified, except that such
member may not continue to serve for more than one year after
the date on which his or her term expired.
(3) Removal.--A member may be removed by the Secretary only
for inefficiency, neglect of duty, or malfeasance in office.
(e) Chair and Vice Chair.--The Secretary of Labor shall from time
to time appoint one of the members of the Board as Chair of the Board.
The Chair is the chief executive and administrative officer of the
Board, and shall have the authority to exercise all administrative
functions necessary to operate the Board. The Secretary of Labor shall
from time to time designate one of the members of the Board as Vice
Chair of the Board, with such duties and responsibilities as the
Secretary shall prescribe. During the absence or disability of the
Chair, or when the office of Chair is vacant, the Vice Chair shall
perform the functions vested in the Chair. During the absence or
disability of both the Chair and Vice Chair, the Secretary shall
designate one of the remaining Board members to perform the functions
vested in the Chair and Vice Chair.
(f) Jurisdiction and Authority.--
(1) In general.--The Board shall have jurisdiction and
authority to decide appeals from administrative decisions and
issue final agency decisions on behalf of the Secretary of
Labor with respect to all matters delegated or prescribed by
order of the Secretary of Labor or pursuant to any other law,
rule, or regulation.
(2) Supersedure.--The Board shall supersede in function and
authority the Administrative Review Board established by the
Secretary of Labor pursuant to the Secretary's order 1-2000 (67
Fed. Reg. 64272) effective 90 days after the date of the
enactment of this Act.
(g) Pay.--The members of the Board shall receive compensation not
to exceed level III of the Executive Schedule.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Education and the Workforce, and in addition to the Committees on the Judiciary, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Education and the Workforce, and in addition to the Committees on the Judiciary, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Education and the Workforce, and in addition to the Committees on the Judiciary, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Energy and Power.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
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