IN THE SENATE OF THE UNITED STATES
January 31, 2011
Mrs. McCaskill (for herself and Mr. Webb) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
To expand whistleblower protections to non-Federal employees whose disclosures involve misuse of Federal funds.
This Act may be cited as
Non-Federal Employee Whistleblower
Protection Act of 2011.
Protecting state and local government and contractor whistleblowers
Section 4705 of title 41, United States Code, is hereby repealed.
Enhanced protection for State and local government and contractor whistleblowers
Chapter 47 of division C of title 41, United States Code, is amended by inserting after section 4704 the following new section:
Whistleblower protection for State and local government and contractor whistleblowers
Prohibition of reprisals
An employee of any non-Federal employer receiving covered funds may not be discharged, demoted, or otherwise discriminated against as a reprisal for initiating or participating in any proceeding related to the misuse of any Federal funds, reasonably opposing the misuse of any Federal funds, or disclosing, including a disclosure made in the ordinary course of an employee's duties, to an inspector general, the Comptroller General of the United States, the Attorney General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct), a court or grand jury, the head of a Federal agency, or their representatives information that the employee reasonably believes is evidence of—
gross mismanagement of an agency contract or grant relating to covered funds;
a gross waste of covered funds;
a substantial and specific danger to public health or safety related to the implementation or use of covered funds;
an abuse of authority related to the implementation or use of covered funds; or
a violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract), subcontract, or grant, awarded or issued relating to covered funds.
Investigation of complaints
A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint regarding the reprisal to the appropriate inspector general. Except as provided under paragraph (3), unless the inspector general determines that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint, the inspector general shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the person's employer, and the head of the appropriate agency.
Time limitations for actions
Except as provided under subparagraph (B), the inspector general shall, not later than 180 days after receiving a complaint under paragraph (1)—
make a determination that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint; or
submit a report under paragraph (1).
Voluntary extension agreed to between inspector general and complainant
If the inspector general is unable to complete an investigation under this section in time to submit a report within the 180-day period specified under subparagraph (A) and the person submitting the complaint agrees to an extension of time, the inspector general shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the inspector general and the person submitting the complaint.
Extension granted by inspector general
If the inspector general is unable to complete an investigation under this section in time to submit a report within the 180-day period specified under subparagraph (A), the inspector general may extend the period for not more than 180 days without agreeing with the person submitting the complaint to such extension, provided that the inspector general provides a written explanation (subject to the authority to exclude information under paragraph (4)(C)) for the decision, which shall be provided to both the person submitting the complaint and the non-Federal employer.
Semi-annual report on extensions
The inspector general shall include in semi-annual reports to Congress a list of those investigations for which the inspector general received an extension.
Discretion not to investigate complaints
The inspector general may decide not to conduct or continue an investigation under this section upon providing to the person submitting the complaint and the non-Federal employer a written explanation (subject to the authority to exclude information under paragraph (4)(C)) for such decision.
Assumption of rights to civil remedy
Upon receipt of an explanation of a decision not to conduct or continue an investigation under subparagraph (A), the person submitting a complaint shall immediately assume the right to a civil remedy under subsection (c)(3) as if the 210-day period specified under such subsection has already passed.
The inspector general shall include in semi-annual reports to Congress a list of those investigations the inspector general decided not to conduct or continue under this paragraph.
Access to investigative file of inspector general
The person alleging a reprisal under this section shall
have access to the investigation file of the appropriate inspector general in
accordance with section 552a of title 5 (commonly referred to as the
Privacy Act). The investigation of the inspector general shall
be deemed closed for purposes of disclosure under such section when an employee
files an appeal to an agency head or a court of competent jurisdiction.
In the event the person alleging the reprisal brings suit under subsection (c)(3), the person alleging the reprisal and the non-Federal employer shall have access to the investigative file of the inspector general in accordance with the Privacy Act.
The inspector general may exclude from disclosure—
information protected from disclosure by a provision of law; and
any additional information the inspector general determines disclosure of which would impede a continuing investigation, provided that such information is disclosed once such disclosure would no longer impede such investigation, unless the inspector general determines that disclosure of law enforcement techniques, procedures, or information could reasonably be expected to risk circumvention of the law or disclose the identity of a confidential source.
Notwithstanding clause (i)(II), the inspector general may not withhold information from the employee which would otherwise be subject to disclosure under section 552 of title 5 (commonly referred to as the Freedom of Information Act) or the Privacy Act.
Privacy of information
An inspector general investigating an alleged reprisal under this section may not respond to any inquiry or disclose any information from or about any person alleging such reprisal, except in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law.
Remedy and enforcement authority
Burden of proof
Disclosure as contributing factor in reprisal
A person alleging a reprisal under this section shall be deemed to have affirmatively established the occurrence of the reprisal if the person demonstrates that a disclosure described in subsection (a) was a contributing factor in the reprisal.
Use of circumstantial evidence
A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence, including—
evidence that the official undertaking the reprisal knew of the disclosure;
evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal; or
evidence that the protected disclosure was well founded in fact or law.
Opportunity for rebuttal
The head of an agency may not find the occurrence of a reprisal with respect to a reprisal that is affirmatively established under subparagraph (A) if the non-Federal employer demonstrates by clear and convincing evidence that the non-Federal employer would have taken the action constituting the reprisal in the absence of the disclosure. An employee may rebut this affirmative defense by direct or circumstantial evidence, including the evidence described in subparagraph (A).
Not later than 30 days after receiving an inspector general report under subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief in whole or in part or shall take 1 or more of the following actions:
Order the employer to take affirmative action to abate the reprisal.
Order the employer to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
Order the employer to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency or a court of competent jurisdiction.
Where appropriate, order the posting of the decision of the inspector general in a manner in which every employee of the employer will have notice of the decision and otherwise require a reasonable compliance program to ensure that no further retaliation is committed by the employer.
In the case of a finding that the reprisal was willful, wanton, or malicious, pay the employee no more then 10 times the amount of all lost wages and other compensatory damages.
If the head of an agency issues an order denying relief in whole or in part under paragraph (1), has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under subsection (b)(2)(B)(i), within 30 days after the expiration of the extension of time, or decides under subsection (b)(3) not to investigate or to discontinue an investigation, and there is no showing that such delay or decision is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the employer to seek compensatory damages and all other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury.
Judicial enforcement of order
Whenever a person fails to comply with an order issued under paragraph (2), the head of the agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorneys' fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the agency.
Any person adversely affected or aggrieved by an order issued under paragraph (2) may obtain review of the order's conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review shall conform to chapter 7 of title 5. Filing such an appeal shall not act to stay the enforcement of the order of a head of an agency or the judgment of a district court.
Exhaustion of administrative remedies
Regardless of any other time limit set forth in this section, after 360 days an employee shall be deemed to have exhausted his or her administrative remedies and may file a civil action or amend a claim under this section to any other pending civil action filed by the employee.
Nonenforceability of certain provisions waiving rights and remedies or requiring arbitration of disputes
Waiver of rights and remedies
Except as provided under paragraph (3), the rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment, including by any predispute arbitration agreement.
Predispute arbitration agreements
Except as provided under paragraph (3), no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising under this section.
Exception for collective bargaining agreements
Notwithstanding paragraphs (1) and (2), an arbitration provision in a collective bargaining agreement shall be enforceable as to disputes arising under the collective bargaining agreement.
Requirement To post notice of rights and remedies
Any employer receiving covered funds shall post notice of the rights and remedies provided under this section.
Rules of construction
No implied authority to retaliate for non-protected disclosures
Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee.
Relationship to State laws
Nothing in this section may be construed to preempt, preclude, or limit the protections provided for public or private employees under State whistleblower laws.
In this section:
Abuse of authority
The term abuse of authority means an arbitrary and capricious exercise of authority by a contracting official or employee that adversely affects the rights of any person, or that results in personal gain or advantage to the official or employee or to preferred other persons.
The term covered funds means any contract, grant, or other payment received by any non-Federal employer if the Federal Government provides any portion of the money or property that is provided, requested, or demanded.
The term employee—
except as provided under subparagraph (B), means an individual performing services on behalf of an employer or a contractor, subcontractor, or agent of an employer; and
does not include any Federal employee or member of the uniformed services (as that term is defined in section 101(a)(5) of title 10).
The term non-Federal employer—
with respect to covered funds—
the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor, grantee, or recipient is an employer; and
any professional membership organization, certification or other professional body, any agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an employer receiving covered funds; or
with respect to covered funds received by a State or local government, the State or local government receiving the funds and any contractor or subcontractor of the State or local government; and
any corporation or person who receives any Federal funds; and
does not mean any department, agency, or other entity of the Federal Government.
State or local government
The term State or local government means—
the government of each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, or any other territory or possession of the United States; or
the government of any political subdivision of a government listed in subparagraph (A).
Section 4705 of title 41, United States Code, as added by subsection (b), shall apply to complaints submitted pursuant to such section on or after the date of the enactment of this Act.
Section 4705 of title 41, United States Code, as in effect on the day before the date of the enactment of this Act shall apply to claims submitted pursuant to such section before such date of enactment.