[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5851 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 5851

To provide whistleblower protections to certain workers in the offshore 
                         oil and gas industry.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 26, 2010

    Mr. George Miller of California (for himself and Mr. Markey of 
Massachusetts) introduced the following bill; which was referred to the 
                    Committee on Education and Labor

_______________________________________________________________________

                                 A BILL


 
To provide whistleblower protections to certain workers in the offshore 
                         oil and gas industry.

    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 ``Offshore Oil and Gas Worker 
Whistleblower Protection Act of 2010''.

SEC. 2. WHISTLEBLOWER PROTECTIONS; EMPLOYEE PROTECTION FROM OTHER 
              RETALIATION.

    (a) Prohibition Against Retaliation.--
            (1) In general.--No employer may discharge or otherwise 
        discriminate against a covered employee because the covered 
        employee, whether at the covered employee's initiative or in 
        the ordinary course of the covered employee's duties--
                    (A) provided, caused to be provided, or is about to 
                provide or cause to be provided to the employer or to a 
                Federal or State Government official, information 
                relating to any violation of, or any act or omission 
                the covered employee reasonably believes to be a 
                violation of any provision of the Outer Continental 
                Shelf Lands Act (43 U.S.C. 1301 et seq.), or any order, 
                rule, regulation, standard, or prohibition under that 
                Act, or exercised any rights provided to employees 
                under that Act;
                    (B) testified or is about to testify in a 
                proceeding concerning such violation;
                    (C) assisted or participated or is about to assist 
                or participate in such a proceeding;
                    (D) testified or is about to testify before 
                Congress on any matter covered by such Act;
                    (E) reported an illness, injury, or unsafe 
                condition related to the employer's activities to the 
                employer or a State or Federal Government official;
                    (F) refused to perform the covered employee's 
                duties, or exercised stop work authority, related to 
                the employer's activities described in section 3(1) if 
                the covered employee had a good faith belief that 
                performing such duties could result in injury to or 
                impairment of the health of the covered employee or 
                other employees, or cause an oil spill to the 
                environment; or
                    (H) objected to, or refused to participate in any 
                activity, policy, practice, or assigned task that the 
                covered employee reasonably believed to be in violation 
                of any provision of such Act, or any order, rule, 
                regulation, standard, or ban under such Act.
            (2) Good faith belief.--For purposes of paragraph (1)(E), 
        the circumstances causing the covered employee's good faith 
        belief that performing such duties would pose a health and 
        safety hazard shall be of such a nature that a reasonable 
        person under circumstances confronting the covered employee 
        would conclude there is such a hazard.
    (b) Process.--
            (1) In general.--A covered employee who believes that he or 
        she has been discharged or otherwise discriminated against 
        (hereafter referred to as the ``complainant'') by any employer 
        in violation of subsection (a)(1) may, not later than 180 days 
        after the date on which such alleged violation occurs or the 
        date on which the covered employee knows or should reasonably 
        have known that such alleged violation occurred, file (or have 
        any person file on his or her behalf) a complaint with the 
        Secretary of Labor (referred to in this section as the 
        ``Secretary'') alleging such discharge or discrimination and 
        identifying employer or employers responsible for such act. 
        Upon receipt of such a complaint, the Secretary shall notify, 
        in writing, the employer or employers named in the complaint of 
        the filing of the complaint, of the allegations contained in 
        the complaint, of the substance of evidence supporting the 
        complaint, and of the opportunities that will be afforded to 
        such person under paragraph (2).
            (2) Investigation.--
                    (A) In general.--Not later than 90 days after the 
                date of receipt of a complaint filed under paragraph 
                (1) the Secretary shall initiate an investigation and 
                determine whether there is reasonable cause to believe 
                that the complaint has merit and notify, in writing, 
                the complainant and the employer or employers alleged 
                to have committed a violation of subsection (a)(1) of 
                the Secretary's findings. The Secretary shall, during 
                such investigation afford the complainant and the 
                employer or employers named in the complaint an 
                opportunity to submit to the Secretary a written 
                response to the complaint and an opportunity to meet 
                with a representative of the Secretary to present 
                statements from witnesses. The complainant shall be 
                provided with an opportunity to review the information 
                and evidence provided by employer or employers to the 
                Secretary, and to review any response or rebuttal by 
                such the complaint, as part of such investigation.
                    (B) Reasonable cause found; preliminary order.--If 
                the Secretary concludes that there is reasonable cause 
                to believe that a violation of subsection (a)(1) has 
                occurred, the Secretary shall accompany the Secretary's 
                findings with a preliminary order providing the relief 
                prescribed by paragraph (3)(B). Not later than 30 days 
                after the date of notification of findings under this 
                paragraph, the employer or employers alleged to have 
                committed the violation or the complainant may file 
                objections to the findings or preliminary order, or 
                both, and request a hearing on the record before an 
                administrative law judge of the Department of Labor. 
                The filing of such objections shall not operate to stay 
                any reinstatement remedy contained in the preliminary 
                order. Any such hearing shall be conducted 
                expeditiously. If a hearing is not requested in such 
                30-day period, the preliminary order shall be deemed a 
                final order that is not subject to judicial review. The 
                Secretary of Labor is authorized to enforce preliminary 
                reinstatement orders in the United States district 
                court for the district in which the violation was found 
                to occur, or in the United States district court for 
                the District of Columbia.
                    (C) Dismissal of complaint.--
                            (i) Standard for complainant.--The 
                        Secretary shall dismiss a complaint filed under 
                        this subsection and shall not conduct an 
                        investigation otherwise required under 
                        subparagraph (A) unless the complainant makes a 
                        prima facie showing that any behavior described 
                        in subparagraphs (A) through (F) of subsection 
                        (a)(1) was a contributing factor in the adverse 
                        action alleged in the complaint.
                            (ii) Standard for employer.--
                        Notwithstanding a finding by the Secretary that 
                        the complainant has made the showing required 
                        under clause (i), no investigation otherwise 
                        required under subparagraph (A) shall be 
                        conducted if the employer demonstrates, by 
                        clear and convincing evidence, that the 
                        employer would have taken the same adverse 
                        action in the absence of that behavior.
                            (iii) Violation standard.--The Secretary 
                        may determine that a violation of subsection 
                        (a)(1) has occurred only if the complainant 
                        demonstrates that any behavior described in 
                        subparagraphs (A) through (F) of such 
                        subsection was a contributing factor in the 
                        adverse action alleged in the complaint.
                            (iv) Relief standard.--Relief may not be 
                        ordered under subparagraph (A) if the employer 
                        demonstrates by clear and convincing evidence 
                        that the employer would have taken the same 
                        adverse action in the absence of that behavior.
            (3) Orders.--
                    (A) In general.--Not later than 90 days after the 
                receipt of a request for a hearing under subsection 
                (b)(2)(B), the administrative law judge shall issue 
                findings of fact and order the relief provided under 
                this paragraph or deny the complaint. At any time 
                before issuance of an order, a proceeding under this 
                subsection may be terminated on the basis of a 
                settlement agreement entered into by the Secretary, the 
                complainant, and the person alleged to have committed 
                the violation. Such a settlement may not be agreed by 
                such parties if it contains conditions which conflict 
                with rights protected under this Act, are contrary to 
                public policy, or include a restriction on a 
                complainant's right to future employment with employers 
                other than the specific employers named in the 
                complaint.
                    (B) Content of order.--If, in response to a 
                complaint filed under paragraph (1), the administrative 
                law judge determines that a violation of subsection 
                (a)(1) has occurred, the administrative law judge shall 
                order the employer or employers who committed such 
                violation--
                            (i) to take affirmative action to abate the 
                        violation;
                            (ii) to reinstate the complainant to his or 
                        her former position together with compensation 
                        (including back pay and prejudgment interest) 
                        and restore the terms, conditions, and 
                        privileges associated with his or her 
                        employment; and
                            (iii) to provide compensatory and 
                        consequential damages, and, as appropriate, 
                        exemplary damages to the complainant.
                    (C) Attorney fees.--If such an order is issued 
                under this paragraph, the Secretary, at the request of 
                the complainant, shall assess against the employer or 
                employers a sum equal to the aggregate amount of all 
                costs and expenses (including attorneys' and expert 
                witness fees) reasonably incurred by the complainant 
                for, or in connection with, the bringing of the 
                complaint upon which the order was issued at the 
                conclusion of any stage of the proceeding.
                    (D) Bad faith claim.--If the Secretary finds that a 
                complaint under paragraph (1) is frivolous or has been 
                brought in bad faith, the Secretary may award to the 
                prevailing employer reasonable attorneys' fees, not 
                exceeding $1,000, to be paid by the complainant.
                    (E) Administrative appeal.--Not later than 30 days 
                after the receipt of findings of fact or an order under 
                subparagraph (B), the employer or employers alleged to 
                have committed the violation or the complainant may 
                file, with objections, an administrative appeal with 
                the Secretary, who may designate such appeal to a 
                review board. In reviewing a decision and order of the 
                administrative law judge, the Secretary 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. The Secretary 
                shall issue a final decision and order affirming, or 
                reversing, in whole or in part, the decision under 
                review within 90 days after receipt of the 
                administrative appeal under this subparagraph. If it is 
                determined that a violation of subsection (a)(1) has 
                occurred, the Secretary shall order relief provided 
                under subparagraphs (B) and (C). Such decision shall 
                constitute a final agency action with respect to the 
                matter appealed.
            (4) Action in court.--
                    (A) In general.--If the Secretary has not issued a 
                final decision within 300 days after the filing of the 
                complaint, the complainant may bring an action at law 
                or equity for de novo review in the appropriate 
                district court of the United States with jurisdiction, 
                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. The 
                proceedings shall be governed by the same legal burdens 
                of proof specified in paragraph (2)(C).
                    (B) Relief.--The court shall have jurisdiction to 
                grant all appropriate relief including injunctive 
                relief, compensatory and consequential damages, 
                including--
                            (i) reinstatement with the same seniority 
                        status that the covered employee would have 
                        had, but for the discharge or discrimination;
                            (ii) the amount of back pay sufficient to 
                        make the covered employee whole, with 
                        prejudgment interest;
                            (iii) exemplary damages, as appropriate; 
                        and
                            (iv) reasonable attorney fees, including 
                        litigation costs, and expert witness fees.
            (5) Review.--
                    (A) In general.--Any person adversely affected or 
                aggrieved by a final order issued under paragraph (3) 
                or a judgment or order under paragraph (4) 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 must be filed not later than 60 days after the 
                date of the issuance of the final order of the 
                Secretary. 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) No other judicial review.--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.
            (6) Failure to comply with order.--Whenever any employer 
        has failed to comply with an order issued under paragraph (3), 
        the Secretary may file a civil action in the United States 
        district court for the district in which the violation was 
        found to occur, or in the United States district court for the 
        District of Columbia, to enforce such order. In actions brought 
        under this paragraph, the district courts shall have 
        jurisdiction to grant all appropriate relief including, but not 
        limited to, injunctive relief and compensatory damages.
            (7) Civil action to require compliance.--
                    (A) In general.--A person on whose behalf an order 
                was issued under paragraph (3) may commence a civil 
                action against the employer to whom such order was 
                issued to require compliance with such order. The 
                appropriate United States district court shall have 
                jurisdiction, without regard to the amount in 
                controversy or the citizenship of the parties, to 
                enforce such order. In cases where the Secretary and 
                the complainant file civil action to require 
                compliance, the action of the Secretary shall take 
                precedence.
                    (B) Award.--The court, in issuing any final order 
                under this paragraph, may award costs of litigation 
                (including reasonable attorneys' and expert witness 
                fees) to any party whenever the court determines such 
                award is appropriate.
    (c) Construction.--
            (1) Effect on other laws.--Nothing in this section preempts 
        or diminishes any other safeguards against discrimination, 
        demotion, discharge, suspension, threats, harassment, 
        reprimand, retaliation, or any other manner of discrimination 
        provided by Federal or State law.
            (2) Rights of employees.--Nothing in this section 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. The rights and remedies in 
        this section may not be waived by any agreement, policy, form, 
        or condition of employment.
    (d) Enforcement of Nondiscretionary Duties.--Any nondiscretionary 
duty imposed by this section shall be enforceable in a mandamus 
proceeding brought under section 1361 of title 28, United States Code.
    (e) Posting of Notice and Training.--All employers shall post a 
notice which has been approved as to form and content by the Secretary 
of Labor in a conspicuous location in the place of employment where 
covered employees frequent which explains employee rights and remedies 
under this section. Each employer shall provide training to covered 
employees of their rights under this section within 30 days of 
employment, and at not less than once every 12 months thereafter, and 
provide covered employees with a card which contains a toll free 
telephone number at the Department of Labor which covered employees can 
call to get information or file a complaint under this section.
    (f) Designation by the Secretary.--The Secretary of Labor shall, 
within 30 days of the date of enactment of this Act, designate by order 
the appropriate agency officials to receive, investigate, and 
adjudicate complaints of violations of subsection (a)(1).

SEC. 3. DEFINITIONS.

    As used in this Act the following definitions apply:
            (1) The term ``covered employee''--
                    (A) means an individual performing services on 
                behalf of an employer that is engaged in activities on 
                or in waters above the Outer Continental Shelf related 
                to--
                            (i) supporting, or carrying out 
                        exploration, development, production, 
                        processing, or transportation of oil or gas; or
                            (ii) oil spill cleanup, emergency response, 
                        environmental surveillance, protection, or 
                        restoration, or other oil spill activities 
                        related to occupational safety and health; and
                    (B) includes an applicant for such employment.
            (2) The term ``employer'' means one or more individuals, 
        partnerships, associations, corporations, trusts, 
        unincorporated organizations, nongovernmental organizations, or 
        trustees, and includes any agent, contractor, subcontractor, 
        grantee or consultant of such employer.
            (3) The term ``Outer Continental Shelf'' has the meaning 
        that the term ``outer Continental Shelf'' has in the Outer 
        Continental Shelf Lands Act (43 U.S.C. 1331 et seq.).
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