H. R. 5851
IN THE HOUSE OF REPRESENTATIVES
July 26, 2010
Mr. George Miller of California (for himself and Mr. Markey of Massachusetts) introduced the following bill; which was referred to the Committee on Education and Labor
To provide whistleblower protections to certain workers in the offshore oil and gas industry.
This Act may be cited as the
Offshore Oil and Gas Worker
Whistleblower Protection Act of 2010.
Whistleblower protections; employee protection from other retaliation
Prohibition Against Retaliation
No employer may discharge or otherwise discriminate against a covered employee because the covered employee, whether at the covered employee’s initiative or in the ordinary course of the covered employee’s duties—
provided, caused to be provided, or is about to provide or cause to be provided to the employer or to a Federal or State Government official, information relating to any violation of, or any act or omission the covered employee reasonably believes to be a violation of any provision of the Outer Continental Shelf Lands Act (43 U.S.C. 1301 et seq.), or any order, rule, regulation, standard, or prohibition under that Act, or exercised any rights provided to employees under that Act;
testified or is about to testify in a proceeding concerning such violation;
assisted or participated or is about to assist or participate in such a proceeding;
testified or is about to testify before Congress on any matter covered by such Act;
reported an illness, injury, or unsafe condition related to the employer’s activities to the employer or a State or Federal Government official;
refused to perform the covered employee’s duties, or exercised stop work authority, related to the employer’s activities described in section 3(1) if the covered employee had a good faith belief that performing such duties could result in injury to or impairment of the health of the covered employee or other employees, or cause an oil spill to the environment; or
objected to, or refused to participate in any activity, policy, practice, or assigned task that the covered employee reasonably believed to be in violation of any provision of such Act, or any order, rule, regulation, standard, or ban under such Act.
Good faith belief
For purposes of paragraph (1)(E), the circumstances causing the covered employee’s good faith belief that performing such duties would pose a health and safety hazard shall be of such a nature that a reasonable person under circumstances confronting the covered employee would conclude there is such a hazard.
A covered employee who believes that he or she has been discharged or otherwise discriminated against (hereafter referred to as the complainant) by any employer in violation of subsection (a)(1) may, not later than 180 days after the date on which such alleged violation occurs or the date on which the covered employee knows or should reasonably have known that such alleged violation occurred, file (or have any person file on his or her behalf) a complaint with the Secretary of Labor (referred to in this section as the Secretary) alleging such discharge or discrimination and identifying employer or employers responsible for such act. Upon receipt of such a complaint, the Secretary shall notify, in writing, the employer or employers named in the complaint of the filing of the complaint, of the allegations contained in the complaint, of the substance of evidence supporting the complaint, and of the opportunities that will be afforded to such person under paragraph (2).
Not later than 90 days after the date of receipt of a complaint filed under paragraph (1) the Secretary shall initiate an investigation and determine whether there is reasonable cause to believe that the complaint has merit and notify, in writing, the complainant and the employer or employers alleged to have committed a violation of subsection (a)(1) of the Secretary’s findings. The Secretary shall, during such investigation afford the complainant and the employer or employers named in the complaint an opportunity to submit to the Secretary a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses. The complainant shall be provided with an opportunity to review the information and evidence provided by employer or employers to the Secretary, and to review any response or rebuttal by such the complaint, as part of such investigation.
Reasonable cause found; preliminary order
If the Secretary concludes that there is reasonable cause to believe that a violation of subsection (a)(1) has occurred, the Secretary shall accompany the Secretary’s findings with a preliminary order providing the relief prescribed by paragraph (3)(B). Not later than 30 days after the date of notification of findings under this paragraph, the employer or employers alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing on the record before an administrative law judge of the Department of Labor. The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order. Any such hearing shall be conducted expeditiously. If a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not subject to judicial review. The Secretary of Labor is authorized to enforce preliminary reinstatement orders in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia.
Dismissal of complaint
Standard for complainant
The Secretary shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise required under subparagraph (A) unless the complainant makes a prima facie showing that any behavior described in subparagraphs (A) through (F) of subsection (a)(1) was a contributing factor in the adverse action alleged in the complaint.
Standard for employer
Notwithstanding a finding by the Secretary that the complainant has made the showing required under clause (i), no investigation otherwise required under subparagraph (A) shall be conducted if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same adverse action in the absence of that behavior.
The Secretary may determine that a violation of subsection (a)(1) has occurred only if the complainant demonstrates that any behavior described in subparagraphs (A) through (F) of such subsection was a contributing factor in the adverse action alleged in the complaint.
Relief may not be ordered under subparagraph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same adverse action in the absence of that behavior.
Not later than 90 days after the receipt of a request for a hearing under subsection (b)(2)(B), the administrative law judge shall issue findings of fact and order the relief provided under this paragraph or deny the complaint. At any time before issuance of an order, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary, the complainant, and the person alleged to have committed the violation. Such a settlement may not be agreed by such parties if it contains conditions which conflict with rights protected under this Act, are contrary to public policy, or include a restriction on a complainant’s right to future employment with employers other than the specific employers named in the complaint.
Content of order
If, in response to a complaint filed under paragraph (1), the administrative law judge determines that a violation of subsection (a)(1) has occurred, the administrative law judge shall order the employer or employers who committed such violation—
to take affirmative action to abate the violation;
to reinstate the complainant to his or her former position together with compensation (including back pay and prejudgment interest) and restore the terms, conditions, and privileges associated with his or her employment; and
to provide compensatory and consequential damages, and, as appropriate, exemplary damages to the complainant.
If such an order is issued under this paragraph, the Secretary, at the request of the complainant, shall assess against the employer or employers a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued at the conclusion of any stage of the proceeding.
Bad faith claim
If the Secretary finds that a complaint under paragraph (1) is frivolous or has been brought in bad faith, the Secretary may award to the prevailing employer reasonable attorneys’ fees, not exceeding $1,000, to be paid by the complainant.
Not later than 30 days after the receipt of findings of fact or an order under subparagraph (B), the employer or employers alleged to have committed the violation or the complainant may file, with objections, an administrative appeal with the Secretary, who may designate such appeal to a review board. In reviewing a decision and order of the administrative law judge, the Secretary 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. The Secretary shall issue a final decision and order affirming, or reversing, in whole or in part, the decision under review within 90 days after receipt of the administrative appeal under this subparagraph. If it is determined that a violation of subsection (a)(1) has occurred, the Secretary shall order relief provided under subparagraphs (B) and (C). Such decision shall constitute a final agency action with respect to the matter appealed.
Action in court
If the Secretary has not issued a final decision within 300 days after the filing of the complaint, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States with jurisdiction, 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. The proceedings shall be governed by the same legal burdens of proof specified in paragraph (2)(C).
The court shall have jurisdiction to grant all appropriate relief including injunctive relief, compensatory and consequential damages, including—
reinstatement with the same seniority status that the covered employee would have had, but for the discharge or discrimination;
the amount of back pay sufficient to make the covered employee whole, with prejudgment interest;
exemplary damages, as appropriate; and
reasonable attorney fees, including litigation costs, and expert witness fees.
Any person adversely affected or aggrieved by a final order issued under paragraph (3) or a judgment or order under paragraph (4) 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 must be filed not later than 60 days after the date of the issuance of the final order of the Secretary. 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.
No other judicial review
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.
Failure to comply with order
Whenever any employer has failed to comply with an order issued under paragraph (3), the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia, to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages.
Civil action to require compliance
A person on whose behalf an order was issued under paragraph (3) may commence a civil action against the employer to whom such order was issued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. In cases where the Secretary and the complainant file civil action to require compliance, the action of the Secretary shall take precedence.
The court, in issuing any final order under this paragraph, may award costs of litigation (including reasonable attorneys’ and expert witness fees) to any party whenever the court determines such award is appropriate.
Effect on other laws
Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law.
Rights of employees
Nothing in this section 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. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.
Enforcement of Nondiscretionary Duties
Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28, United States Code.
Posting of Notice and Training
All employers shall post a notice which has been approved as to form and content by the Secretary of Labor in a conspicuous location in the place of employment where covered employees frequent which explains employee rights and remedies under this section. Each employer shall provide training to covered employees of their rights under this section within 30 days of employment, and at not less than once every 12 months thereafter, and provide covered employees with a card which contains a toll free telephone number at the Department of Labor which covered employees can call to get information or file a complaint under this section.
Designation by the Secretary
The Secretary of Labor shall, within 30 days of the date of enactment of this Act, designate by order the appropriate agency officials to receive, investigate, and adjudicate complaints of violations of subsection (a)(1).
As used in this Act the following definitions apply:
The term covered employee—
means an individual performing services on behalf of an employer that is engaged in activities on or in waters above the Outer Continental Shelf related to—
supporting, or carrying out exploration, development, production, processing, or transportation of oil or gas; or
oil spill cleanup, emergency response, environmental surveillance, protection, or restoration, or other oil spill activities related to occupational safety and health; and
includes an applicant for such employment.
The term employer means one or more individuals, partnerships, associations, corporations, trusts, unincorporated organizations, nongovernmental organizations, or trustees, and includes any agent, contractor, subcontractor, grantee or consultant of such employer.
The term Outer Continental Shelf has the meaning that the term outer Continental Shelf has in the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.).