[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2277 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2277

To protect employees of air carriers who serve as whistleblowers under 
applicable Federal law, or who refuse to violate an applicable law, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              July 8, 1998

 Mr. Grassley introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To protect employees of air carriers who serve as whistleblowers under 
applicable Federal law, or who refuse to violate an applicable law, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. WHISTLEBLOWER PROTECTION.

    (a) Definitions.--In this section:
            (1) Air carrier.--The term ``air carrier'' has the meaning 
        given that term in section 40102 of title 49, United States 
        Code.
            (2) Covered proceeding.--The term ``covered proceeding'' 
        means a proceeding conducted by the Secretary of Transportation 
        or the Administrator of the Federal Aviation Administration to 
        carry out a function of the Department of Transportation.
            (3) Employee.--The term ``employee'' means--
                    (A) an applicant that applies for employment by an 
                air carrier, employee, or former employee of an air 
                carrier; and
                    (B) includes a contractor or subcontractor of the 
                Federal Aviation Administration carrying out a function 
                of the Department of Transportation or of a contractor 
                or subcontractor of an air carrier.
            (4) Related action.--The term ``related action'' means the 
        actions of an employee to--
                    (A) notify an employer or the Secretary of 
                Transportation of an alleged violation of title 49, 
                United States Code;
                    (B) refuse to engage in any practice that the 
                employee reasonably believes constitutes a violation of 
                law (including a rule or regulation);
                    (C) testified before Congress or at any Federal or 
                State proceeding regarding any provision of title 49, 
                United States Code;
                    (D) commences, acts with the intention of 
                commencing, or causes to be commenced a proceeding 
                under title 49, United States Code;
                    (E) testified or is about to testify in any such 
                proceeding; or
                    (F) assisted or participated or is about to 
                participate in any manner in such a proceeding or in 
                any other manner in such a proceeding or in any other 
                action to carry out the purposes of title 49, United 
                States Code.
    (b) Whistleblower Protection.--
            (1) Limitation on liability.--No employee shall be liable 
        by reason of an activity described in subparagraph (A), (B), or 
        (C) of paragraph (2).
            (2) Employees described.--An employee described in this 
        paragraph is an employee who, in a manner consistent with 
        applicable law--
                    (A) commences, acts with the intention of 
                commencing, or causes to be commenced a covered 
                proceeding;
                    (B) testifies or acts with the intention of 
                testifying at a covered proceeding or with respect to a 
                related action;
                    (C) assists with or participates in or acts with 
                the intention of assisting or participating in a 
                covered proceeding; or
                    (D) carries out a related action.
            (3) Refusal to violate law.--No employee shall be liable 
        for refusing to violate or assist in the violation of any law 
        (including any rule or regulation) in the course of employment, 
        if the refusal is based on a reasonable belief that the law 
        would be violated.
            (4) Prohibition on discrimination.--No air carrier, 
        contractor, or subcontractor covered under this section may 
        discriminate against an employee described in paragraph (2).
    (c) Procedures and Penalties.--
            (1) Filing of complaints and procedures.--
                    (A) In general.--An employee alleging 
                discrimination (including discharge, discipline, or 
                reassignment) in violation of subsection (b) or another 
                person at the employee's request, may file a complaint 
                with the Secretary of Labor not later than 180 days 
                after the alleged violation occurs.
                    (B) Procedures.--
                            (i) In general.--The Secretary of Labor may 
                        issue a subpoena for the attendance and 
                        testimony of any person and the production of 
                        documentary or other evidence from any person 
                        if the testimony or production requested is not 
                        unduly burdensome and appears reasonably 
                        calculated to lead to the discovery of 
                        admissible evidence.
                            (ii) Procedures.--Subject to paragraph (4), 
                        in carrying out this subsection, the Secretary 
                        of Labor shall, with respect to a complaint 
                        described in subparagraph (A), use the same 
                        procedures for filing complaints, conducting 
                        investigations, holding hearings, and issuing 
                        orders as are applicable to drivers of 
                        commercial motor vehicles under section 
                        31105(b) of title 49, United States Code.
                    (C) Burden of proof.--
                            (i) In general.--The Secretary of Labor 
                        shall dismiss a complaint filed under 
                        subparagraph (A), and shall not conduct the 
                        investigation or provide relief after 
                        completion of the procedures required under 
                        subparagraph (B), unless the complainant has 
                        made a prima facie showing that any behavior 
                        described in subsection (b) (2) or (3) was a 
                        contributing factor in the discrimination 
                        (including discharge or discipline) alleged in 
                        the complaint.
                            (ii) Demonstration by employer.--
                        Notwithstanding a finding by the Secretary that 
                        the complainant has made a showing required 
                        under clause (i), no investigation required or 
                        relief available under subparagraph (B) shall 
                        be carried out or made available if the 
                        employer demonstrates, by clear and convincing 
                        evidence, that it would have taken the same 
                        unfavorable personnel action for legitimate, 
                        independent reasons in the absence of such 
                        behavior.
                    (D) Penalties.--The penalties contained in section 
                31105(b) of title 49, United States Code, shall apply 
                to persons who violate subsection (b) of this section 
                in the same manner as those penalties apply to persons 
                who violate section 31105(a) of title 49, United States 
                Code.
            (2) Judicial review and venue.--A person adversely affected 
        by an order issued pursuant to paragraph (1)(B) may seek 
        judicial review in the same manner as is prescribed in section 
        31105(c) of title 49, United States Code. The court in issuing 
        any final order under this paragraph may award costs of 
        litigation (including reasonable attorney and expert witness 
        fees) to any party whenever the court determines such award is 
        appropriate.
            (3) Civil actions.--If a person fails to comply with an 
        order issued pursuant to paragraph (1), the Secretary of Labor 
        shall bring a civil action to enforce the order in the district 
        court of the United States for the judicial district in which 
        the violation occurred.
            (4) Alternative procedures.--Upon filing a complaint under 
        this subsection, with the mutual consent of the parties, the 
        Secretary of Labor may provide for mediation or arbitration in 
        a manner consistent with applicable law, in lieu of conducting 
        a hearing and issuing an order under the procedures contained 
        in section 31105(b) of title 49, United States Code.

SEC. 2. WHISTLEBLOWER PROTECTION FOR FAA EMPLOYEES.

    Section 347(b)(1) of the Department of Transportation and Related 
Agencies Appropriations Act, 1996 (49 U.S.C. 106 note; 109 Stat. 460) 
is amended by inserting before the semicolon at the end the following: 
``, including the provisions for investigation, adjudication, and 
enforcement as provided for in chapters 12 and 77 of title 5, United 
States Code''.

SEC. 3. PROTECTION AGAINST OVERBROAD RESTRICTIONS ON DISCLOSURES.

    (a) Prohibition.--
            (1) In general.--No employer may spend funds to implement 
        or enforce the agreements in Standard Forms 312 and 4355 of the 
        Federal Government or any other nondisclosure policy, form, or 
        agreement if such policy, form, or agreement does not contain 
        the following statement: ``These provisions are consistent with 
        and do not supersede, conflict with, or otherwise alter the 
        employee obligations, rights, or liabilities created by 
        Executive Order No. 12958; section 7211 of title 5, United 
        States Code (governing disclosures to Congress); section 1034 
        of title 10, United States Code, (governing disclosures to 
        Congress by members of the military); section 2302(b)(8) of 
        title 5, United States Code (governing disclosures of 
        illegality, waste, fraud, abuse, or public health or safety 
        threats); the Intelligence Identities Protection Act of 1982 
        (50 U.S.C. 421 et seq.) (governing disclosures that could 
        expose confidential Government agents); and the statutes which 
        protect against disclosures which may compromise the national 
        security, including sections 641, 793, 794, 798, and 952 of 
        title 18, United States Code, and section 4(b) of the 
        Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The 
        definitions, requirements, obligations, rights, sanctions, and 
        liabilities created by such Executive order and such provisions 
        are incorporated into this Agreement and are controlling.''.
            (2) Intelligence activities.--Notwithstanding the paragraph 
        (1), a nondisclosure policy, form, or agreement that is to be 
        executed by a person connected with the conduct of an 
        intelligence or intelligence-related activity, other than an 
        employee or officer of the United States Government, may 
        contain provisions appropriate to the particular activity for 
        which such document is to be used. Such form or agreement 
        shall, at a minimum, require that the person will not disclose 
        classified information received in the course of such activity 
        unless specifically authorized to do so by the United States 
        Government.
            (3) Violations of law.--Nondisclosure agreements or forms 
        described in paragraph (1) shall clarify that such agreements 
        do not bar disclosures to Congress or to an authorized official 
        of an executive agency or the Department of Justice that are 
        essential to reporting a substantial violation of law.
    (b) Civil Actions.--An employee, former employee, or applicant for 
employment to which this section applies may, with respect to an action 
for a violation of section 7211 or 7212 of title 49, United States 
Code, that is taken, threatened, or proposed to be taken against such 
employee, former employee, or applicant for employment, bring a civil 
action for a jury trial in the appropriate district court of the United 
States for relief.
    (c) Procedures.--In any action brought under subsection (b)--
            (1) the matter shall be reviewed de novo by the court; and
            (2) the proceeding shall be governed by the legal burdens 
        of proof in sections 1214(b)(4)(B) and 1221(e) of title 5, 
        United States Code.
                                 <all>