< Back to H.R. 6409 (112th Congress, 2011–2013)

Text of the Private Sector Whistleblower Protection Streamlining Act of 2012

This bill was introduced on September 13, 2012, in a previous session of Congress, but was not enacted. The text of the bill below is as of Sep 13, 2012 (Introduced).

Source: GPO

I

112th CONGRESS

2d Session

H. R. 6409

IN THE HOUSE OF REPRESENTATIVES

September 13, 2012

(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.

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.

I

Private Sector Employment Whistleblower Protections

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.

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.

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).

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.
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.

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.

II

Whistleblower Protection Office

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.

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.

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).

III

Conforming Amendments

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.

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.

.

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.

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);

.

IV

Administrative Review Board

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.