[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1580 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 1580
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 SENATE OF THE UNITED STATES
August 5, 2009
Mr. Reid (for Mr. Kennedy (for himself, Mrs. Murray, Mr. Dodd, Mr.
Harkin, Mr. Bingaman, Mr. Sanders, Mr. Brown, Mr. Casey, Mr. Merkley,
Mr. Franken, Mr. Leahy, Mr. Akaka, Mrs. Boxer, Mr. Feingold, Mr.
Durbin, Mr. Schumer, Ms. Stabenow, Mr. Lautenberg, Mr. Menendez, and
Mr. Whitehouse)) 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 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, 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 through the
period at the end 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 WHISTLE BLOWERS
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 respondent who committed such violation to
correct the violation;
``(II) such respondent 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 respondent 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 respondent 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 respondent 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. PROHIBITION ON DISCOURAGING EMPLOYEE REPORTS OF INJURY OR
ILLNESS.
Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by adding at the
end the following new sentence: ``Such regulations shall prohibit the
adoption or implementation of policies or practices by the employer
that discourage the reporting of work-related injuries or illnesses by
any employee or in any manner discriminate or provide for adverse
action against any employee for reporting a work-related injury or
illness.''.
SEC. 303. NO LOSS OF EMPLOYEE PAY FOR INSPECTIONS.
Section 8(e) (29 U.S.C. 657) is amended by inserting after the
first sentence the following: ``Time spent by an employee participating
in or aiding any such inspection shall be deemed to be hours worked and
no employee shall suffer any loss of wages, benefits, or other terms
and conditions of employment for having participated in or aided any
such inspection.''.
SEC. 304. 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:
``(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. 305. 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. 306. 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 or the representative of 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 or the representative of a 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. 307. 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. 308. ABATEMENT OF SERIOUS HAZARDS DURING EMPLOYER CONTESTS TO A
CITATION.
(a) Citations and Enforcement.--Section 10(b) (29 U.S.C. 659(b)) is
amended--
(1) by inserting after ``which period'' the following:
``for other than serious violations''; and
(2) by adding at the end the following: ``In lieu of
providing the notification required by this subsection, where a
notice of contest to a citation is pending before the
Commission, the Secretary may by appropriate motion in that
proceeding assert that the employer has failed to abate the
violation within the time period fixed in the citation.''.
(b) Employer Contest.--Section 10(c) (29 U.S.C. 659) is amended by
inserting after the first sentence the following: ``The pendency of a
contest before the Commission shall not bar the Secretary from
inspecting a place of employment or from issuing a citation under
section 9.''.
SEC. 309. 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. 310. CIVIL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) is amended--
(1) in subsection (a)--
(A) by striking ``$70,000'' and inserting
``$120,000'';
(B) by striking ``$5,000'' and inserting
``$8,000''; 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, except that for an employer with 25
or fewer employees such penalty shall not be less than
$25,000 for such violation.'';
(2) in subsection (b)--
(A) by striking ``$7,000'' and inserting
``$12,000''; 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, except that for an employer with 25
or fewer employees such penalty shall not be less than
$10,000 for such violation.'';
(3) in subsection (c)--
(A) by striking ``$7,000'' and inserting
``$12,000''; 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, except that for an employer with 25
or fewer employees such penalty shall not be less than
$10,000 for such violation.'';
(4) in subsection (d)--
(A) by striking ``$7,000'' and inserting
``$12,000''; 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, except that for an employer with 25
or fewer employees such penalty shall not be less than
$10,000 for such violation.'';
(5) by redesignating subsections (e) through (l) as
subsections (f) through (m), respectively; and
(6) in subsection (j) (as redesignated in paragraph (5)),
by striking ``$7,000'' and inserting ``$12,000;''.
(b) Inflation Adjustment.--Section 17 (29 U.S.C. 666) (as amended
by subsection (a)) is further amended by inserting after subsection (d)
the following:
``(e) 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.''.
SEC. 311. OSHA CRIMINAL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) (as amended by section
310) is further amended--
(1) by amending subsection (f) to read as follows:
``(f)(1) Any employer who willfully violates any standard, rule, or
order promulgated pursuant to section 6 of this Act, or of any
regulations prescribed pursuant to this Act, and that violation caused
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 10 years, or both; except that if the
conviction is for a violation committed after a first conviction of
such person under this subsection or subsection (i), punishment shall
be by a fine in accordance with section 3571 of title 18, United States
Code, or by imprisonment for not more than 20 years, or by both.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any responsible corporate officer.'';
(2) in subsection (g), 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 (h), 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 5
years,'';
(4) by redesignating subsections (j) through (m) as
subsections (k) through (n), respectively; and
(5) by inserting after subsection (i) the following:
``(j)(1) 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.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any responsible corporate officer.''.
(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.''.
TITLE IV--EFFECTIVE DATE
SEC. 401. EFFECTIVE DATE.
(a) General Rule.--Except as provided for in subsection (b), this
Act and the amendments made by this Act shall take effect 90 days after
the date of enactment of this Act.
(b) Exceptions for States and Political Subdivisions.--The
following are exceptions to the effective date described in subsection
(a):
(1) A State that has a State plan approved under section 18
(29 U.S.C. 667) shall amend its State plan to conform with the
requirements of this Act and the amendments made by this Act
not later than 12 months after the date of enactment of this
Act. Such amendments to the State plan shall take effect not
later than 90 days after the adoption of such amendments by
such State.
(2) This Act and the amendments made by this Act shall take
effect not later than 36 months after the date of the enactment
of this Act in a State, or a political subdivision of a State,
that does not have a State plan approved under section 18 (29
U.S.C. 667).
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