[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2004 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 2004

   To amend the Occupational Safety and Health Act of 1970 to expand 
coverage under the Act, to increase protections for whistleblowers, to 
   increase penalties for certain violators, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 28, 2005

 Mr. Owens (for himself, Mr. George Miller of California, Mr. Andrews, 
Mr. Lynch, Ms. DeLauro, and Mr. Michaud) introduced the following bill; 
   which was referred to the Committee on Education and the Workforce

_______________________________________________________________________

                                 A BILL


 
   To amend the Occupational Safety and Health Act of 1970 to expand 
coverage under the Act, to increase protections for whistleblowers, to 
   increase penalties for certain violators, 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. SHORT TITLE.

    This Act may be cited as the ``Protecting America's Workers Act''.

SEC. 2. REFERENCES.

    Except as otherwise expressly provided, wherever in this Act an 
amendment or repeal is expressed in terms of an amendment to, or repeal 
of, a section or other provision of law, the reference shall be 
considered to be made to a section or other provision of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.).

                TITLE I--COVERAGE AND APPLICATION OF ACT

SEC. 101. COVERAGE OF PUBLIC EMPLOYEES.

    (a) In General.--Section 3(5) (29 U.S.C. 652(5)) is amended by 
striking ``but does not include'' and all that follows and inserting 
``including the United States, a State, or a political subdivision of a 
State.''.
    (b) Construction.--Nothing in this Act shall be construed to affect 
the application of section 18 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 667).

SEC. 102. APPLICATION OF ACT.

    Section 4(b) (29 U.S.C. 653(b)(1)) is amended--
            (1) by redesignating paragraphs (2), (3), and (4) as 
        paragraphs (5), (6), and (7), respectively; and
            (2) by striking paragraph (1) and inserting the following:
            ``(1) If a Federal agency has promulgated and is enforcing 
        a standard or regulation affecting occupational safety or 
        health of some or all of the employees within that agency's 
        regulatory jurisdiction, and the Secretary determines that such 
        a standard or regulation as promulgated and the manner in which 
        the standard or regulation is being enforced provides 
        protection to those employees that is at least as effective as 
        the protection provided to those employees by this Act and the 
        Secretary's enforcement of this Act, the Secretary may publish 
        a certification notice in the Federal Register. The notice 
        shall set forth that determination and the reasons for the 
        determination and certify that the Secretary has ceded 
        jurisdiction to that Federal agency with respect to the 
        specified standard or regulation affecting occupational safety 
        or health. In determining whether to cede jurisdiction to a 
        Federal agency, the Secretary shall seek to avoid duplication 
        of, and conflicts between, health and safety requirements. Such 
        certification shall remain in effect unless and until rescinded 
        by the Secretary.
            ``(2) The Secretary shall, by regulation, establish 
        procedures by which any person who may be adversely affected by 
        a decision of the Secretary certifying that the Secretary has 
        ceded jurisdiction to another Federal agency pursuant to 
        paragraph (1) may petition the Secretary to rescind a 
        certification notice under paragraph (1). Upon receipt of such 
        a petition, the Secretary shall investigate the matter involved 
        and shall, within 90 days after receipt of the petition, 
        publish a decision with respect to the petition in the Federal 
        Register.
            ``(3) Any person who may be adversely affected by--
                    ``(A) a decision of the Secretary certifying that 
                the Secretary has ceded jurisdiction to another Federal 
                agency pursuant to paragraph (1); or
                    ``(B) a decision of the Secretary denying a 
                petition to rescind such a certification notice under 
                paragraph (1),
        may, not later than 60 days after such decision is published in 
        the Federal Register, file a petition challenging such decision 
        with the United States court of appeals for the circuit in 
        which such person resides or such person has a principal place 
        of business, for judicial review of such decision. A copy of 
        the petition shall be forthwith transmitted by the clerk of the 
        court to the Secretary. The Secretary's decision shall be set 
        aside if found to be arbitrary, capricious, an abuse of 
        discretion, or otherwise not in accordance with law.
            ``(4) Nothing in this Act shall apply to working conditions 
        covered by the Federal Mine Safety and Health Act of 1977 (30 
        U.S.C. 801 et seq.).''.

          TITLE II--INCREASING PROTECTIONS FOR WHISTLEBLOWERS

SEC. 201. EMPLOYEE ACTIONS.

    Section 11(c)(1) (29 U.S.C. 660(c)(1)) is amended by inserting 
before the period at the end the following: ``, including reporting 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''.

SEC. 202. PROHIBITION OF DISCRIMINATION.

    Section 11(c) (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 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. The circumstances causing the employee's 
        apprehension of serious injury or serious impairment of health 
        shall be of such a nature that a reasonable person, under the 
        circumstances confronting the employee, would conclude that 
        there is a bona fide danger of a serious injury, or serious 
        impairment of health, resulting from the circumstances. In 
        order to qualify for protection under this paragraph, the 
        employee, when practicable, shall have sought from the 
        employee's employer, and have been unable to obtain, a 
        correction of the circumstances causing the refusal to perform 
        the employee's duties.''.

SEC. 203. PROCEDURE.

    Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph 
(3) and inserting the following:
            ``(3) 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, within 180 
        days after such alleged violation occurs, file (or have filed 
        by any person on the employee's behalf) a complaint with the 
        Secretary alleging that such discharge or discrimination 
        violates paragraph (1) or (2). Upon receipt of such a 
        complaint, the Secretary shall notify the person named in the 
        complaint (referred to in this subsection as the `respondent') 
        of the filing of the complaint.
            ``(4)(A)(i) Not later than 60 days after 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. 
        During the investigation, the Secretary shall notify the 
        respondent of the charges made in the complaint, and shall 
        provide such person with an opportunity to meet with the 
        inspector conducting the investigation, to submit a response to 
        such charges, and to present witnesses to rebut such charges. 
        The Secretary shall also consider the result of any grievance 
        proceeding provided for in a collective bargaining agreement, 
        that may have been held with respect to such charges. Upon 
        completion of the investigation, the Secretary shall issue 
        findings and notify the complainant and the respondent of the 
        Secretary's findings. If the Secretary has concluded 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 (B).
                    ``(ii)(I) Not later than 30 days after the 
                Secretary has issued findings under clause (i), either 
                the respondent or the complainant may file objections 
                to the findings or preliminary order, 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.
                    ``(II) If a hearing described in subclause (I) is 
                not requested in the 30-day period described in such 
                subclause with respect to a preliminary order, the 
                order shall be deemed to be a final order and not 
                subject to judicial review.
                    ``(iii) If the Secretary does not issue findings 
                under clause (i) with respect to a complaint within 90 
                days after the receipt of the complaint, the 
                complainant may request a hearing on the record on the 
                complaint.
                    ``(iv) The Secretary shall expeditiously conduct a 
                hearing requested under clause (ii) or (iii). Upon the 
                conclusion of such hearing, the Secretary shall issue a 
                final order within 120 days. Until the issuance of a 
                final order, such hearing may be terminated at any time 
                on the basis of a settlement agreement entered into by 
                the Secretary, the complainant, and the respondent.
            ``(B)(i) If, in response to a complaint filed under 
        paragraph (3), the Secretary determines that a violation of 
        paragraph (1) or (2) has occurred, in issuing an order under 
        subparagraph (A)(iv), the Secretary shall require--
                    ``(I) the person who committed such violation to 
                correct the violation;
                    ``(II) such person to reinstate the complainant to 
                the complainant's former position together with the 
                compensation (including backpay), terms, conditions, 
                and privileges of the complainant's employment; and
                    ``(III) such person to pay compensatory damages.
            ``(ii) On issuing an order requiring a remedy described in 
        clause (i), the Secretary, at the request of the complainant, 
        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) reasonably incurred, as determined 
        by the Secretary, by the complainant for, or in connection with 
        a complaint upon which the order was issued.
            ``(5)(A) Any person adversely affected or aggrieved by an 
        order issued after a hearing conducted under paragraph (4)(A) 
        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 such person resided on the date of such violation. The 
        petition for review shall be filed within 60 days after the 
        issuance of the Secretary's order. Such review shall be 
        conducted in accordance with the provisions of chapter 7 of 
        title 5, United States Code. The court shall conduct the review 
        and issue a decision expeditiously.
            ``(B) If a person fails to comply with an order issued 
        under paragraph (4)(A), the Secretary shall 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 all appropriate relief, 
        including injunctive relief, reinstatement, and compensatory 
        damages.
            ``(6) The legal burdens of proof set forth in section 
        1221(e) of title 5, United States Code, shall govern 
        adjudication of violations under this subsection.''.

SEC. 204. RELATION TO ENFORCEMENT.

    Section 17(j) (29 U.S.C. 666(j)) is amended by inserting before the 
period the following: ``, including the history of violations, under 
section 11(c)''.

             TITLE III--INCREASING PENALTIES FOR VIOLATORS

SEC. 301. POSTING OF EMPLOYEE RIGHTS.

    Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the 
end the following new sentence: ``Such regulations shall include 
provisions requiring employers to post for employees information on the 
protections afforded under section 11(c).''.

SEC. 302. INVESTIGATIONS OF FATALITIES AND SERIOUS INCIDENTS.

    Section 8 (29 U.S.C. 657) is amended by adding at the end the 
following new subsection:
    ``(i)(1) The Secretary shall investigate any incident resulting in 
death or serious incident, that occurs in a place of employment covered 
by this Act.
    ``(2) If an incident resulting in death or serious incident occurs 
in a place of employment covered by this Act, the employer shall notify 
the Secretary of the incident involved and shall take appropriate 
measures to prevent the destruction or alteration of any evidence that 
would assist in investigating the incident. The appropriate measures 
required by this paragraph do not prevent an employer from taking 
action on a worksite to prevent injury to employees or substantial 
damage to property. If an employer takes such action, the employer 
shall notify the Secretary of the action in a timely fashion.
    ``(3) In this subsection the followng definitions apply:
            ``(A) Incident resulting in death.--The term `incident 
        resulting in death' means an incident that results in the death 
        of an employee.
            ``(B) Serious incident.--The term `serious incident' means 
        an incident that results in the hospitalization of 2 or more 
        employees.''.

SEC. 303. PROHIBITION ON UNCLASSIFIED CITATIONS.

    Section 9 (29 U.S.C. 658) is amended by adding at the end the 
following:
    ``(d) The Secretary may not designate a citation issued under this 
section as an unclassified citation.''.

SEC. 304. VICTIMS' RIGHTS.

    The Act is amended by inserting after section 9 (29 U.S.C. 658) the 
following:

``SEC. 9A. VICTIM'S RIGHTS.

    ``(a) Definition.--In this section, the term `victim' means--
            ``(1) an employee who has sustained a work-related injury 
        or illness that is the subject of an inspection or 
        investigation conducted under section 8, or
            ``(2) a family member of an employee, if--
                    ``(A) the employee is killed as a result of a work-
                related injury or illness that is the subject of an 
                inspection or investigation conducted under section 8; 
                or
                    ``(B) the employee sustains a work-related injury 
                or illness that is the subject of an inspection or 
                investigation conducted under section 8, and the 
                employee cannot reasonably exercise the employee's 
                rights under this section.
    ``(b) Rights.--On request, a victim shall be afforded the right, 
with respect to a work-related injury or illness (including a death 
resulting from a work-related injury or illness) involving an employee, 
to--
            ``(1) meet with the Secretary, or an authorized 
        representative of the Secretary, regarding the inspection or 
        investigation conducted under section 8 concerning the 
        employee's injury or illness before the Secretary's decision to 
        issue a citation or take no action; and
            ``(2)(A) receive, at no cost, a copy of any citation or 
        report, issued as a result of such inspection or investigation, 
        on the later of the date the citation or report is issued and 
        the date of the request;
            ``(B) be informed of any notice of contest filed under 
        section 10; and
            ``(C) be provided an explanation of the rights of employee 
        and employee representatives to participate in proceedings 
        conducted under section 10.
    ``(c) Modification of Citation.--Before entering into an agreement 
to withdraw or modify a citation issued as a result of an inspection or 
investigation of an incident resulting in death or serious incident 
under section 8, the Secretary, on request, shall provide an 
opportunity to the victim to appear and make a statement before the 
parties conducting settlement negotiations.
    ``(d) Notification and Review.--The Secretary shall establish 
procedures--
            ``(1) to inform victims of their rights under this section; 
        and
            ``(2) for the informal review of any claim of a denial of 
        such a right.''.

SEC. 305. RIGHT TO CONTEST CITATIONS AND PENALTIES.

    The first sentence of section 10(c) (29 U.S.C. 659(c)) is amended--
            (1) by inserting after ``the issuance of a citation'' the 
        following: ``(including a modification of a citation issued)''; 
        and
            (2) by inserting after ``files a notice with the Secretary 
        alleging'' the following: ``that the citation fails properly to 
        designate the violation as serious, willful, or repeated, that 
        the proposed penalty is not adequate, or''.

SEC. 306. OBJECTIONS TO MODIFICATION OF CITATIONS.

    Section 10 (29 U.S.C. 659) is amended by adding at the end the 
following new subsection:
    ``(d)(1) If the Secretary intends to withdraw or to modify a 
citation issued under section 9(a) as a result of any agreement with 
the cited employer, the Secretary shall provide (in accordance with 
rules of procedure prescribed by the Commission) prompt notice to 
affected employees or representatives of affected employees, and that 
notice shall include the terms of the proposed agreement.
    ``(2) Not later than 15 working days after the receipt of a notice 
provided in accordance with paragraph (1), any employee or 
representative of employees, regardless of whether such employee or 
representative has previously elected to participate in the proceedings 
involved, shall have the right to file a notice with the Secretary 
alleging that the proposed agreement fails to effectuate the purposes 
of this Act and stating the respects in which the agreement fails to 
effectuate the purposes.
    ``(3) Upon receipt of a notice filed under paragraph (2), the 
Secretary shall consider the statements presented in the notice, and if 
the Secretary determines to proceed with the proposed agreement, the 
Secretary shall respond with particularity to the statements presented 
in the notice.
    ``(4) Not later than 15 working days following the Secretary's 
response provided pursuant to paragraph (3), the employee or 
representative of employees shall, on making a request to the 
Commission, be entitled to a hearing before the Commission as to 
whether adoption of the proposed agreement would effectuate the 
purposes of this Act, including a determination as to whether the 
proposed agreement would adequately abate the alleged violations 
alleged in the citation.
    ``(5) If the Commission determines that the proposed agreement 
fails to effectuate the purposes of this Act, the proposed agreement 
shall not be entered as an order of the Commission and the citation 
shall not be withdrawn or modified in accordance with the proposed 
agreement.''.

SEC. 307. CIVIL PENALTIES.

    Section 17 (29 U.S.C. 666) is amended--
            (1) in subsection (a)--
                    (A) by striking ``$70,000'' and inserting 
                ``$100,000'';
                    (B) by striking ``$5,000'' and inserting 
                ``$7,000''; and
                    (C) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $250,000 for such violation, but not less than $50,000 
                for such violation.'';
            (2) in subsection (b)--
                    (A) by striking ``$7,000'' and inserting 
                ``$10,000''; and
                    (B) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $50,000 for such violation, but not less than $20,000 
                for such violation.'';
            (3) in subsection (c)--
                    (A) by striking ``$7,000'' and inserting 
                ``$10,000''; and
                    (B) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $50,000 for such violation, but not less than $20,000 
                for such violation.'';
            (4) in subsection (d)--
                    (A) by striking ``$7,000'' and inserting 
                ``$10,000''; and
                    (B) by adding at the end the following: ``If such a 
                violation causes the death of an employee, such civil 
                penalty amounts shall be increased to not more than 
                $50,000 for such violation, but not less than $20,000 
                for such violation.''; and
            (5) in subsection (i), by striking ``$7,000'' and inserting 
        ``$10,000''.

SEC. 308. OSHA CRIMINAL PENALTIES.

    (a) In General.--Section 17 (29 U.S.C. 666) (as amended by section 
307) is further amended--
            (1) in subsection (e)--
                    (A) by striking ``fine of not more than $10,000'' 
                and inserting ``fine in accordance with section 3571 of 
                title 18, United States Code,'';
                    (B) by striking ``six months'' and inserting ``10 
                years'';
                    (C) by inserting ``under this subsection or 
                subsection (i)'' after ``first conviction of such 
                person'';
                    (D) by striking ``fine of not more than $20,000'' 
                and inserting ``fine in accordance with section 3571 of 
                title 18, United States Code,''; and
                    (E) by striking ``one year'' and inserting ``20 
                years'';
            (2) in subsection (f), by striking ``fine of not more than 
        $1,000 or by imprisonment for not more than six months,'' and 
        inserting ``fine in accordance with section 3571 of title 18, 
        United States Code, or by imprisonment for not more than 2 
        years,'';
            (3) in subsection (g), by striking ``fine of not more than 
        $10,000, or by imprisonment for not more than six months,'' and 
        inserting ``fine in accordance with section 3571 of title 18, 
        United States Code, or by imprisonment for not more than 1 
        year,'';
            (4) by redesignating subsections (i) through (l) as 
        subsections (j) through (m), respectively; and
            (5) by inserting after subsection (h) the following:
    ``(i) Any employer who willfully violates any standard, rule, or 
order promulgated pursuant to section 6, or any regulation prescribed 
pursuant to this Act, and that violation causes serious bodily injury 
to any employee but does not cause death to any employee, shall, upon 
conviction, be punished by a fine in accordance with section 3571 of 
title 18, United States Code, or by imprisonment for not more than 5 
years, or by both, except that if the conviction is for a violation 
committed after a first conviction of such person under this subsection 
or subsection (e), punishment shall be by a fine in accordance with 
section 3571 of title 18, United States Code, or by imprisonment for 
not more than 10 years, or by both.''.
    (b) Definition.--Section 3 (29 U.S.C. 652) is amended by adding at 
the end the following:
            ``(15) The term `serious bodily injury' means bodily injury 
        that involves--
                    ``(A) a substantial risk of death;
                    ``(B) protracted unconsciousness;
                    ``(C) protracted and obvious physical 
                disfigurement; or
                    ``(D) protracted loss or impairment, of the 
                function of a bodily member, organ, or mental 
                faculty.''.
    (c) Jurisdiction for Prosecution Under State and Local Criminal 
Laws.--Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is 
further amended by adding at the end the following:
    ``(o) Nothing in this Act shall preclude a State or local law 
enforcement agency from conducting criminal prosecutions in accordance 
with the laws of such State or locality.''.
    (d) Inflation Adjustment.--Section 17 (29 U.S.C. 666) (as amended 
by subsection (c)) is further amended by adding at the end the 
following:
    ``(p) Amounts provided under this section for civil penalties shall 
be adjusted by the Secretary at least once during each 4-year period to 
account for the percentage increase or decrease in the Consumer Price 
Index for all urban consumers during such period.''.

 TITLE IV--REQUIRING EMPLOYERS TO PROVIDE PERSONAL PROTECTIVE EQUIPMENT

SEC. 401. REQUIREMENT.

    Section 6(b) (29 U.S.C. 655(b)), as amended by section 102(b), is 
further amended by adding at the end the following:
    ``(10)(A) In this paragraph, the term `personal protective 
equipment' means personal protective equipment as such term is defined 
for purposes of section 1910.132(a) of title 29, Code of Federal 
Regulations (or any corresponding similar regulation or ruling).
    ``(B)(i) Not later than 30 days after the date of enactment of the 
Protecting America's Workers Act, the Secretary shall amend section 
1910.132(a) of title 29, Code of Federal Regulations, to provide that 
protective equipment shall be provided at no cost to the employee.
    ``(ii) In promulgating any standard under this section that 
requires protective equipment, the Secretary shall specify that the 
protective equipment shall be provided at no cost to the employee.''.
                                 <all>