[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 652 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                 S. 652

  To amend the Occupational Safety and Health Act of 1970 to protect 
 employees against reprisals from employers based on certain employee 
        conduct concerning safe and healthy working conditions.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 17, 1999

  Mr. Wellston (for himself and Mr. Kennedy) introduced the following 
  bill; which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To amend the Occupational Safety and Health Act of 1970 to protect 
 employees against reprisals from employers based on certain employee 
        conduct concerning safe and healthy working conditions.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Safety and Health Whistleblower 
Protection Act''.

SEC. 2. EMPLOYEE ACTIONS.

    Section 11(c)(1) of the Occupational Safety and Health Act of 1970 
(29 U.S.C. 660(c)(1)) is amended by inserting before the period the 
following: ``including reporting any injury, illness or unsafe 
condition''.

SEC. 3. PROHIBITION OF DISCRIMINATION.

    Section 11(c) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 660(c)) is amended by striking paragraph (2) and inserting the 
following:
    ``(2) No person shall discharge or in any manner discriminate 
against an employee for refusing to perform the employee's duties when 
the employee has a reasonable apprehension that performing such duties 
would result in serious injury or serious impairment of health to the 
employee or other employees. The circumstances causing the employee's 
apprehension of serious injury must be of such a nature that a 
reasonable person would conclude that there is a danger of serious 
injury or serious impairment of health. This paragraph shall only apply 
to an employee to the extent that the employee, if possible, 
communicated to the employer the danger perceived.''.

SEC. 4. PROCEDURE.

    Section 11(c) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 660(c)) is amended by striking paragraph (3) and inserting the 
following:
    ``(3) Any employee who believes that he or she has been discharged, 
disciplined, or otherwise discriminated against in violation of 
paragraph (1) or (2) may, within 180 days after the date on which such 
alleged violation occurs, file (or have filed by any person on the 
employee's behalf) a complaint with the Secretary alleging such 
discharge, discipline, or discrimination. Upon receipt of such a 
complaint, the Secretary shall notify the person named in the complaint 
of the filing of the complaint.
    ``(4)(A) Within 90 days of the receipt of a complaint filed under 
paragraph (3), the Secretary shall conduct an investigation and 
determine whether there is reasonable cause to believe that the 
complaint has merit and shall notify the complainant and the person 
alleged to have committed the violation of paragraph (1) or (2) of the 
Secretary's findings. Where the Secretary has determined that there is 
reasonable cause to believe that a violation has occurred, the 
Secretary's findings shall be accompanied by a preliminary order 
providing the relief prescribed by subparagraph (E).
    ``(B)(i) After a preliminary order is issued under subparagraph 
(A), the person alleged to have committed the violation involved or the 
complainant may, within 30 days, file objections to the findings or 
preliminary order, or both, and request a hearing on the record, except 
that the filing of such objections shall not operate to stay any 
reinstatement remedy contained in the preliminary order; and
    ``(ii) If a hearing described in clause (i) is not requested in a 
timely manner as provided for under such clause, the preliminary order 
involved shall be deemed a final order and not be subject to judicial 
review.
    ``(C) If the Secretary has not issued findings under subparagraph 
(A) within the 90-day period described in such subparagraph, and the 
employee or representative of the employee files a request for a 
hearing with the Secretary, the Secretary shall afford an opportunity 
for a hearing on the record.
    ``(D) If requested under subparagraph (C), a hearing shall be 
conducted by an administrative law judge and a recommended decision and 
order issued expeditiously. The legal burdens of proof that prevail 
under section 1221 of title 5, United States Code, shall govern 
adjudication of violations under this subsection. The Secretary shall 
issue a final order within 120 days of the issuance of the recommended 
decision. In the interim, such proceedings may be terminated at any 
time on the basis of a settlement agreement entered into by the 
Secretary, the complainant, and the person alleged to have committed 
the violation.
    ``(E) If, in response to a complaint filed under paragraph (3), the 
Secretary determines that a violation of paragraph (1) or (2) has 
occurred, the Secretary shall order as appropriate--
            ``(i) the person who committed such violation to correct 
        the violation;
            ``(ii) the person to reinstate the complainant to the 
        complainant's former position together with the compensation 
        (including back pay), terms, conditions, and privileges of the 
        position;
            ``(iii) compensatory damages; and
            ``(iv) exemplary damages.
Upon issuance of such an order, the Secretary may assess against the 
person against whom the order is issued a sum equal to the aggregate 
amount of all costs and expenses (including attorney's fees and expert 
witness fees) reasonably incurred, as determined by the Secretary, by 
the complainant for, or in connection with, the bringing of the 
complaint upon which the order was issued, including costs and expenses 
incurred upon review before a court of appeals.
    ``(F) In conducting an investigation or adjudication under this 
paragraph, the provisions of section 8(b) shall apply.
    ``(5)(A) Any person adversely affected or aggrieved by a final 
order issued under paragraph (4)(D) may obtain review of the order 
before the United States court of appeals for the circuit in which the 
violation, with respect to which the order was issued, occurred, or the 
circuit in which such person resided on the date of such violation. The 
petition for review must be filed within 60 days from the date on which 
the Secretary's order was issued. Such review shall be in accordance 
with the provisions of chapter 7 of title 5, United States Code. An 
order of the Secretary subject to review under this subsection is not 
subject to judicial review in a criminal or other civil proceeding. The 
commencement of proceedings under this subsection shall not, unless 
ordered by the court, operate as a stay of the order of the Secretary.
    ``(B) When a person has failed to comply with a final order or an 
order of reinstatement issued under paragraph (4), the Secretary or the 
person on behalf of whom 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 in order to enforce such order. In actions 
brought under this subparagraph, the district court shall have 
jurisdiction to grant additional appropriate relief in light of the 
noncompliance.''.

SEC. 5. RELATION TO ENFORCEMENT.

    Section 17(j) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 666(j)) is amended by inserting before the period the following: 
``, including the history of violation under section 11(c)''.

SEC. 6. EFFECTIVE DATE.

    The amendments made by this Act shall take effect 90 days after the 
date of enactment of this Act.
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