COVID–19 Whistleblower Protection Act
This bill establishes whistleblower protections for government contractors and private sector workers who may witness waste, fraud, or abuse or be victims of misconduct with respect to a COVID-19 (i.e., coronavirus disease 2019) pandemic-related program, project, or activity. Specifically, employers may not discharge, demote, or otherwise discriminate against such protected individuals who disclose information concerning fraud, misuse, or other misconduct related to COVID-19 program funds. A protected individual may submit to the Department of Labor a complaint alleging a violation of these protections and Labor may adjudicate such complaints and award relief in accordance with the Internal Revenue Service whistleblower procedures.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3963 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 3963
To protect certain whistleblowers seeking to ensure accountability and
oversight of the Nation's COVID-19 pandemic response, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 15, 2020
Ms. Harris (for herself, Ms. Warren, Mr. Markey, Ms. Hirono, Mr. Wyden,
Ms. Baldwin, Ms. Klobuchar, Mr. Sanders, Mr. Blumenthal, Mr. Durbin,
and Ms. Smith) introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To protect certain whistleblowers seeking to ensure accountability and
oversight of the Nation's COVID-19 pandemic response, and for other
purposes.
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 ``COVID-19 Whistleblower Protection
Act''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``abuse of authority'' means an arbitrary and
capricious exercise of authority by a contracting officer or
employee that adversely affects the rights of any individual,
or that results in personal gain or advantage to the officer or
employee or to preferred other individuals;
(2) the term ``CARES Act'' means the CARES Act (Public Law
116-136);
(3) the term ``Coronavirus pandemic-related program,
project, or activity''--
(A) means a program, project, or activity of the
executive branch of the Federal Government authorized
under or carried out using amounts made available under
an Act to respond to or to provide aid or assistance to
address, relief from, or funding to address the
outbreak of COVID-19 that is enacted before, on, or
after the date of enactment of this Act; and
(B) includes any program, project, or activity of
the executive branch of the Federal Government
authorized under or carried out using amounts made
available under--
(i) the Paycheck Protection Program and
Health Care Enhancement Act (Public Law 116-
139), or an amendment made by that Act;
(ii) the CARES Act, or an amendment made by
that Act;
(iii) the Families First Coronavirus
Response Act (Public Law 116-127), or an
amendment made by that Act; or
(iv) the Coronavirus Preparedness and
Response Supplemental Appropriations Act, 2020
(Public Law 116-123), or an amendment made by
that Act;
(4) the term ``covered funds'' means any contract,
subcontract, grant, subgrant, loan, loan guarantee, or other
payment for which--
(A) the Federal Government provides any portion of
the funds or property that is provided, requested, or
demanded; and
(B) any portion of the funds are appropriated or
otherwise made available under or to carry out a
Coronavirus pandemic-related program, project, or
activity;
(5) the term ``employee''--
(A) except as provided under subparagraph (B),
means an individual performing services on behalf of an
employer, including any individual working for an
employer under a contract with such employer (including
a contractor, subcontractor, or agent of an employer);
and
(B) does not include any Federal employee or member
of the uniformed services (as that term is defined in
section 101(a)(5) of title 10, United States Code);
(6) the term ``non-Federal employer''--
(A) means any employer--
(i) with respect to covered funds--
(I) the contractor, subcontractor,
grantee, subgrantee, or recipient, as
the case may be, if the contractor,
subcontractor, grantee, subgrantee, or
recipient is an employer; and
(II) any professional membership
organization, certification or other
professional body, any agent or
licensee of the Federal Government, or
any person acting directly or
indirectly in the interest of an
employer receiving covered funds; or
(ii) with respect to covered funds received
by a State or local government, the State or
local government receiving the funds and any
contractor or subcontractor of the State or
local government; and
(B) does not mean any department, agency, or other
entity of the Federal Government;
(7) the term ``protected individual'' means--
(A) an employee of, former employee of, or
individual seeking employment with, any non-Federal
employer receiving covered funds; or
(B) a Federal personal services contractor
receiving covered funds, former such Federal personal
services contractor, or applicant for a Federal
personal services contract involving such funds;
(8) the term ``reprisal'' means an action (or, as
applicable, inaction) that is discharging, demoting,
blacklisting, or acting or failing to take an action in a
manner prejudicial against, or otherwise discriminating against
in any way (including in the hiring process and including by
the threat of any such action or inaction) a protected
individual as described in section 3(a)(1) for a reason
described in subparagraph (A) or (B) of such section; and
(9) the term ``State or local government'' means--
(A) the government of each of the several States,
the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the Virgin Islands, the
Commonwealth of the Northern Mariana Islands, or any
other territory or possession of the United States; or
(B) the government of any political subdivision of
a government listed in subparagraph (A).
SEC. 3. PROTECTING WHISTLEBLOWERS.
(a) Prohibition of Reprisals.--
(1) In general.--A protected individual may not be
discharged, demoted, blacklisted, prejudiced by any action or
lack of action, or otherwise discriminated against in any way
(including in the hiring process and including by the threat of
any such action or inaction) for--
(A) disclosing, being perceived as disclosing, or
preparing to disclose (including assisting in
disclosing, being perceived as assisting in disclosing,
or preparing to assist in disclosing and including a
disclosure made in the ordinary course of the duties of
the protected individual) to an officer or entity
described in paragraph (2) information that the
protected individual reasonably believes is evidence of
misconduct that violates, obstructs, or undermines any
statute, rule, or regulation with respect to any
Coronavirus pandemic-related program, project, or
activity, including--
(i) gross mismanagement of an agency
contract, subcontract, grant, or subgrant
relating to covered funds;
(ii) a gross waste of covered funds;
(iii) a substantial and specific danger to
public health or safety;
(iv) an abuse of authority related to the
distribution, implementation, or use of covered
funds, including conflict of interest or
partiality; and
(v) a violation of any statute, rule, or
regulation related to an agency contract,
subcontract (including the competition for or
negotiation of a contract or subcontract),
grant, or subgrant, awarded or issued relating
to covered funds; or
(B) refusing to obey an order that the protected
individual reasonably believes would require that
individual to violate a statute, rule, or regulation
with respect to any Coronavirus pandemic-related
program, project, or activity.
(2) Officers and entities.--The officers and entities
described in this paragraph are--
(A) the Pandemic Response Accountability Committee;
(B) an inspector general, including the Special
Inspector General for Pandemic Relief;
(C) the Congressional Oversight Commission;
(D) the Comptroller General of the United States;
(E) a Member of Congress;
(F) a congressional committee;
(G) a State or Federal regulatory or law
enforcement agency;
(H)(i) an individual with supervisory authority
over a protected individual; or
(ii) another individual who--
(I) has authority to investigate, discover,
or terminate misconduct; and
(II) works for the non-Federal employer (in
the case of a protected individual described in
section 2(7)(A)), or the Federal Government (in
the case of a protected individual described in
section 2(7)(B));
(I) a court or grand jury;
(J) an officer or representative of a labor
organization; or
(K) the head of a Federal agency or a designee of
such a head.
(3) Application.--
(A) In general.--For the purposes of paragraph
(1)--
(i) a protected individual who initiates or
provides evidence of misconduct by a
contractor, subcontractor, grantee, or
subgrantee in any judicial or administrative
proceeding relating to waste, fraud, or abuse
in connection with a Federal contract or grant
shall be deemed to have made a disclosure
covered by such paragraph; and
(ii) any discharge, demotion,
discrimination, or other reprisal described in
paragraph (1) is prohibited even if it is
undertaken at the request of an executive
branch officer or employee, unless the request
takes the form of a non-discretionary directive
and is within the authority of the executive
branch official making the request.
(B) Protection of whistleblower identity.--
(i) In general.--Except as required by law,
an officer or entity described in paragraph (2)
that receives information under paragraph (1)
and any individual or entity to which the
officer or entity discloses the information may
not disclose the identity or identifying
information of the protected individual
providing the information without explicit
written consent of the protected individual.
(ii) Notice.--If disclosure of the identity
or identifying information of a protected
individual providing information under
paragraph (1) is required by law, the recipient
shall provide timely notice of the disclosure
to the protected individual.
(b) Investigation of Complaints.--
(1) Complaints.--
(A) In general.--A protected individual who
believes that the individual has been subjected to a
reprisal prohibited under subsection (a) may, within 3
years after learning of the alleged reprisal, submit a
complaint regarding the reprisal to the Secretary of
Labor in accordance with paragraph (2).
(B) Response.--Not later than 60 days after the
submission of a complaint under subparagraph (A), the
applicable non-Federal employer (or the applicable
agency head in the case of a Federal personal services
contract involving covered funds) shall submit an
answer to the complaint to the Secretary of Labor.
(2) Remedy and enforcement authority.--
(A) Rules and procedures.--Except to the extent
provided otherwise in this section, any action alleging
a reprisal prohibited under subsection (a) shall be
governed, to the maximum extent practicable, by the
rules and procedures for administrative and judicial
enforcement, including for investigations, civil
actions, appeals, and relief, set forth under section
7623(d) of the Internal Revenue Code of 1986.
(B) Burden of proof.--The Secretary of Labor, or
the officer presiding in a judicial or administrative
proceeding, shall apply the legal burdens of proof
specified in section 1221(e) of title 5, United States
Code, in determining whether a reprisal prohibited
under subsection (a) has occurred in accordance with
the rules and procedures under subparagraph (A).
(C) Access to investigative file of the secretary
of labor.--
(i) In general.--A protected individual
alleging a reprisal under this section shall
have access to the investigation file of the
Secretary of Labor in accordance with section
552a of title 5, United States Code (commonly
referred to as the ``Privacy Act''). The
investigation of the Secretary of Labor shall
be deemed closed for purposes of disclosure
under such section when an individual files an
appeal to an agency head or a court of
competent jurisdiction.
(ii) Civil action.--In the event a
protected individual alleging a reprisal under
this section brings a civil action under this
subsection, the protected individual and the
non-Federal employer (or the head of the
applicable agency in the case of a Federal
personal services contract involving covered
funds), if applicable, shall have access to the
investigative file of the Secretary of Labor in
accordance with section 552a of title 5, United
States Code.
(iii) Exception.--The Secretary of Labor
may exclude from disclosure--
(I) information protected from
disclosure by a provision of law; and
(II) any additional information the
Secretary of Labor determines
disclosure of which would impede a
continuing investigation, if such
information is disclosed once such
disclosure would no longer impede such
investigation, unless the Secretary of
Labor determines that disclosure of law
enforcement techniques, procedures, or
information could reasonably be
expected to risk circumvention of the
law or disclose the identity of a
confidential source.
(iv) Privacy of information.--The Secretary
of Labor investigating an alleged reprisal
under this section may not respond to any
inquiry or disclose any information from or
about any protected individual alleging such
reprisal, except in accordance with the
provisions of section 552a of title 5, United
States Code, or as required by any other
applicable Federal law.
(c) General Provisions.--
(1) Rights retained by employee.--Nothing in this section
shall diminish the rights, privileges, or remedies of any
protected individual under any Federal or State law, or under
any collective bargaining agreement.
(2) Liability.--Notwithstanding any other provision of law,
a protected individual shall be immune from civil and criminal
liability with respect to a disclosure by the individual if the
individual would be protected from reprisal under subsection
(a) for making the disclosure. The protected individual shall
bear the burden of proving that the individual would be
protected from reprisal under subsection (a) for making the
disclosure.
(3) Nonenforceability of certain provisions waiving rights
and remedies or requiring arbitration of disputes.--
(A) Waiver of rights and remedies.--Except as
provided under subparagraph (C), the rights and
remedies provided for in this section may not be waived
by any public or private agreement, policy, form, or
condition of employment, including by any predispute
arbitration agreement.
(B) Predispute arbitration agreements.--Except as
provided under subparagraph (C), no predispute
arbitration agreement shall be valid or enforceable if
it requires arbitration of a dispute arising under this
section.
(C) Exception for collective bargaining
agreements.--Notwithstanding subparagraphs (A) and (B),
an arbitration provision in a collective bargaining
agreement shall be enforceable as to disputes arising
under the collective bargaining agreement.
(4) Requirement to post notice of rights and remedies.--Any
non-Federal employer receiving covered funds (and the head of
the applicable agency in the case of a Federal personal
services contract involving covered funds) shall post notice of
the rights and remedies provided under this section.
(d) Rules of Construction.--
(1) No implied authority to retaliate for non-protected
disclosures.--Nothing in this section may be construed to--
(A) authorize the discharge of, demotion of, or
discrimination or other reprisal against a protected
individual for a disclosure other than a disclosure
protected by subsection (a); or
(B) modify or derogate from a right or remedy
otherwise available to the protected individual.
(2) Relationship to state laws.--Nothing in this section
may be construed to preempt, preclude, or limit the protections
provided for public or private employees under State
whistleblower laws.
(e) Complaint Portal.--The Special Inspector General for Pandemic
Relief, the Pandemic Relief Accountability Committee, and the
Congressional Oversight Commission shall each establish a public
website where any individual who believes that the individual has been
subjected to a reprisal prohibited under subsection (a) may submit a
complaint regarding the reprisal. Such complaints shall be transmitted
to the Secretary of Labor for enforcement in accordance with this
section.
(f) Funding.--There is appropriated to the Secretary of Labor for
the fiscal year ending September 30, 2020, out of any money in the
Treasury not otherwise appropriated, $20,000,000 to carry out this Act,
to remain available until expended.
<all>
Introduced in Senate
Read twice and referred to the Committee on Homeland Security and Governmental Affairs.
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