[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 241 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 241

  To expand whistleblower protections to non-Federal employees whose 
              disclosures involve misuse of Federal funds.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 31, 2011

  Mrs. McCaskill (for herself and Mr. Webb) introduced the following 
 bill; which was read twice and referred to the Committee on Homeland 
                   Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
  To expand whistleblower protections to non-Federal employees whose 
              disclosures involve misuse of Federal funds.

    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 ``Non-Federal Employee Whistleblower 
Protection Act of 2011''.

SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR 
              WHISTLEBLOWERS.

    (a) Repeal.--Section 4705 of title 41, United States Code, is 
hereby repealed.
    (b) Enhanced Protection for State and Local Government and 
Contractor Whistleblowers.--Chapter 47 of division C of title 41, 
United States Code, is amended by inserting after section 4704 the 
following new section:
``Sec. 4705. Whistleblower protection for State and local government 
              and contractor whistleblowers
    ``(a) Prohibition of Reprisals.--An employee of any non-Federal 
employer receiving covered funds may not be discharged, demoted, or 
otherwise discriminated against as a reprisal for initiating or 
participating in any proceeding related to the misuse of any Federal 
funds, reasonably opposing the misuse of any Federal funds, or 
disclosing, including a disclosure made in the ordinary course of an 
employee's duties, to an inspector general, the Comptroller General of 
the United States, the Attorney General, a member of Congress, a State 
or Federal regulatory or law enforcement agency, a person with 
supervisory authority over the employee (or such other person working 
for the employer who has the authority to investigate, discover, or 
terminate misconduct), a court or grand jury, the head of a Federal 
agency, or their representatives information that the employee 
reasonably believes is evidence of--
            ``(1) gross mismanagement of an agency contract or grant 
        relating to covered funds;
            ``(2) a gross waste of covered funds;
            ``(3) a substantial and specific danger to public health or 
        safety related to the implementation or use of covered funds;
            ``(4) an abuse of authority related to the implementation 
        or use of covered funds; or
            ``(5) a violation of law, rule, or regulation related to an 
        agency contract (including the competition for or negotiation 
        of a contract), subcontract, or grant, awarded or issued 
        relating to covered funds.
    ``(b) Investigation of Complaints.--
            ``(1) In general.--A person who believes that the person 
        has been subjected to a reprisal prohibited by subsection (a) 
        may submit a complaint regarding the reprisal to the 
        appropriate inspector general. Except as provided under 
        paragraph (3), unless the inspector general determines that the 
        complaint is frivolous, does not relate to covered funds, or 
        another Federal or State judicial or administrative proceeding 
        has previously been invoked to resolve such complaint, the 
        inspector general shall investigate the complaint and, upon 
        completion of such investigation, submit a report of the 
        findings of the investigation to the person, the person's 
        employer, and the head of the appropriate agency.
            ``(2) Time limitations for actions.--
                    ``(A) In general.--Except as provided under 
                subparagraph (B), the inspector general shall, not 
                later than 180 days after receiving a complaint under 
                paragraph (1)--
                            ``(i) make a determination that the 
                        complaint is frivolous, does not relate to 
                        covered funds, or another Federal or State 
                        judicial or administrative proceeding has 
                        previously been invoked to resolve such 
                        complaint; or
                            ``(ii) submit a report under paragraph (1).
                    ``(B) Extensions.--
                            ``(i) Voluntary extension agreed to between 
                        inspector general and complainant.--If the 
                        inspector general is unable to complete an 
                        investigation under this section in time to 
                        submit a report within the 180-day period 
                        specified under subparagraph (A) and the person 
                        submitting the complaint agrees to an extension 
                        of time, the inspector general shall submit a 
                        report under paragraph (1) within such 
                        additional period of time as shall be agreed 
                        upon between the inspector general and the 
                        person submitting the complaint.
                            ``(ii) Extension granted by inspector 
                        general.--If the inspector general is unable to 
                        complete an investigation under this section in 
                        time to submit a report within the 180-day 
                        period specified under subparagraph (A), the 
                        inspector general may extend the period for not 
                        more than 180 days without agreeing with the 
                        person submitting the complaint to such 
                        extension, provided that the inspector general 
                        provides a written explanation (subject to the 
                        authority to exclude information under 
                        paragraph (4)(C)) for the decision, which shall 
                        be provided to both the person submitting the 
                        complaint and the non-Federal employer.
                            ``(iii) Semi-annual report on extensions.--
                        The inspector general shall include in semi-
                        annual reports to Congress a list of those 
                        investigations for which the inspector general 
                        received an extension.
            ``(3) Discretion not to investigate complaints.--
                    ``(A) In general.--The inspector general may decide 
                not to conduct or continue an investigation under this 
                section upon providing to the person submitting the 
                complaint and the non-Federal employer a written 
                explanation (subject to the authority to exclude 
                information under paragraph (4)(C)) for such decision.
                    ``(B) Assumption of rights to civil remedy.--Upon 
                receipt of an explanation of a decision not to conduct 
                or continue an investigation under subparagraph (A), 
                the person submitting a complaint shall immediately 
                assume the right to a civil remedy under subsection 
                (c)(3) as if the 210-day period specified under such 
                subsection has already passed.
                    ``(C) Semi-annual report.--The inspector general 
                shall include in semi-annual reports to Congress a list 
                of those investigations the inspector general decided 
                not to conduct or continue under this paragraph.
            ``(4) Access to investigative file of inspector general.--
                    ``(A) In general.--The person alleging a reprisal 
                under this section shall have access to the 
                investigation file of the appropriate inspector general 
                in accordance with section 552a of title 5 (commonly 
                referred to as the `Privacy Act'). The investigation of 
                the inspector general shall be deemed closed for 
                purposes of disclosure under such section when an 
                employee files an appeal to an agency head or a court 
                of competent jurisdiction.
                    ``(B) Civil action.--In the event the person 
                alleging the reprisal brings suit under subsection 
                (c)(3), the person alleging the reprisal and the non-
                Federal employer shall have access to the investigative 
                file of the inspector general in accordance with the 
                Privacy Act.
                    ``(C) Exception.--
                            ``(i) In general.--The inspector general 
                        may exclude from disclosure--
                                    ``(I) information protected from 
                                disclosure by a provision of law; and
                                    ``(II) any additional information 
                                the inspector general determines 
                                disclosure of which would impede a 
                                continuing investigation, provided that 
                                such information is disclosed once such 
                                disclosure would no longer impede such 
                                investigation, unless the inspector 
                                general determines that disclosure of 
                                law enforcement techniques, procedures, 
                                or information could reasonably be 
                                expected to risk circumvention of the 
                                law or disclose the identity of a 
                                confidential source.
                            ``(ii) Limitation.--Notwithstanding clause 
                        (i)(II), the inspector general may not withhold 
                        information from the employee which would 
                        otherwise be subject to disclosure under 
                        section 552 of title 5 (commonly referred to as 
                        the Freedom of Information Act) or the Privacy 
                        Act.
            ``(5) Privacy of information.--An inspector general 
        investigating an alleged reprisal under this section may not 
        respond to any inquiry or disclose any information from or 
        about any person alleging such reprisal, except in accordance 
        with the provisions of section 552a of title 5 or as required 
        by any other applicable Federal law.
    ``(c) Remedy and Enforcement Authority.--
            ``(1) Burden of proof.--
                    ``(A) Disclosure as contributing factor in 
                reprisal.--
                            ``(i) In general.--A person alleging a 
                        reprisal under this section shall be deemed to 
                        have affirmatively established the occurrence 
                        of the reprisal if the person demonstrates that 
                        a disclosure described in subsection (a) was a 
                        contributing factor in the reprisal.
                            ``(ii) Use of circumstantial evidence.--A 
                        disclosure may be demonstrated as a 
                        contributing factor in a reprisal for purposes 
                        of this paragraph by circumstantial evidence, 
                        including--
                                    ``(I) evidence that the official 
                                undertaking the reprisal knew of the 
                                disclosure;
                                    ``(II) evidence that the reprisal 
                                occurred within a period of time after 
                                the disclosure such that a reasonable 
                                person could conclude that the 
                                disclosure was a contributing factor in 
                                the reprisal; or
                                    ``(III) evidence that the protected 
                                disclosure was well founded in fact or 
                                law.
                    ``(B) Opportunity for rebuttal.--The head of an 
                agency may not find the occurrence of a reprisal with 
                respect to a reprisal that is affirmatively established 
                under subparagraph (A) if the non-Federal employer 
                demonstrates by clear and convincing evidence that the 
                non-Federal employer would have taken the action 
                constituting the reprisal in the absence of the 
                disclosure. An employee may rebut this affirmative 
                defense by direct or circumstantial evidence, including 
                the evidence described in subparagraph (A).
            ``(2) Agency action.--Not later than 30 days after 
        receiving an inspector general report under subsection (b), the 
        head of the agency concerned shall determine whether there is 
        sufficient basis to conclude that the non-Federal employer has 
        subjected the complainant to a reprisal prohibited by 
        subsection (a) and shall either issue an order denying relief 
        in whole or in part or shall take 1 or more of the following 
        actions:
                    ``(A) Order the employer to take affirmative action 
                to abate the reprisal.
                    ``(B) Order the employer to reinstate the person to 
                the position that the person held before the reprisal, 
                together with the compensation (including back pay), 
                compensatory damages, employment benefits, and other 
                terms and conditions of employment that would apply to 
                the person in that position if the reprisal had not 
                been taken.
                    ``(C) Order the employer to pay the complainant an 
                amount equal to the aggregate amount of all costs and 
                expenses (including attorneys' fees and expert 
                witnesses' fees) that were reasonably incurred by the 
                complainant for, or in connection with, bringing the 
                complaint regarding the reprisal, as determined by the 
                head of the agency or a court of competent 
                jurisdiction.
                    ``(D) Where appropriate, order the posting of the 
                decision of the inspector general in a manner in which 
                every employee of the employer will have notice of the 
                decision and otherwise require a reasonable compliance 
                program to ensure that no further retaliation is 
                committed by the employer.
                    ``(E) In the case of a finding that the reprisal 
                was willful, wanton, or malicious, pay the employee no 
                more then 10 times the amount of all lost wages and 
                other compensatory damages.
            ``(3) Civil action.--If the head of an agency issues an 
        order denying relief in whole or in part under paragraph (1), 
        has not issued an order within 210 days after the submission of 
        a complaint under subsection (b), or in the case of an 
        extension of time under subsection (b)(2)(B)(i), within 30 days 
        after the expiration of the extension of time, or decides under 
        subsection (b)(3) not to investigate or to discontinue an 
        investigation, and there is no showing that such delay or 
        decision is due to the bad faith of the complainant, the 
        complainant shall be deemed to have exhausted all 
        administrative remedies with respect to the complaint, and the 
        complainant may bring a de novo action at law or equity against 
        the employer to seek compensatory damages and all other relief 
        available under this section in the appropriate district court 
        of the United States, which shall have jurisdiction over such 
        an action without regard to the amount in controversy. Such an 
        action shall, at the request of either party to the action, be 
        tried by the court with a jury.
            ``(4) Judicial enforcement of order.--Whenever a person 
        fails to comply with an order issued under paragraph (2), the 
        head of the agency shall file an action for enforcement of such 
        order in the United States district court for a district in 
        which the reprisal was found to have occurred. In any action 
        brought under this paragraph, the court may grant appropriate 
        relief, including injunctive relief, compensatory and exemplary 
        damages, and attorneys' fees and costs. The person upon whose 
        behalf an order was issued may also file such an action or join 
        in an action filed by the head of the agency.
            ``(5) Judicial review.--Any person adversely affected or 
        aggrieved by an order issued under paragraph (2) may obtain 
        review of the order's conformance with this subsection, and any 
        regulations issued to carry out this section, in the United 
        States court of appeals for a circuit in which the reprisal is 
        alleged in the order to have occurred. No petition seeking such 
        review may be filed more than 60 days after issuance of the 
        order by the head of the agency. Review shall conform to 
        chapter 7 of title 5. Filing such an appeal shall not act to 
        stay the enforcement of the order of a head of an agency or the 
        judgment of a district court.
            ``(6) Exhaustion of administrative remedies.--Regardless of 
        any other time limit set forth in this section, after 360 days 
        an employee shall be deemed to have exhausted his or her 
        administrative remedies and may file a civil action or amend a 
        claim under this section to any other pending civil action 
        filed by the employee.
    ``(d) Nonenforceability of Certain Provisions Waiving Rights and 
Remedies or Requiring Arbitration of Disputes.--
            ``(1) Waiver of rights and remedies.--Except as provided 
        under paragraph (3), the rights and remedies provided for in 
        this section may not be waived by any agreement, policy, form, 
        or condition of employment, including by any predispute 
        arbitration agreement.
            ``(2) Predispute arbitration agreements.--Except as 
        provided under paragraph (3), no predispute arbitration 
        agreement shall be valid or enforceable if it requires 
        arbitration of a dispute arising under this section.
            ``(3) Exception for collective bargaining agreements.--
        Notwithstanding paragraphs (1) and (2), an arbitration 
        provision in a collective bargaining agreement shall be 
        enforceable as to disputes arising under the collective 
        bargaining agreement.
    ``(e) Requirement To Post Notice of Rights and Remedies.--Any 
employer receiving covered funds shall post notice of the rights and 
remedies provided under this section.
    ``(f) Rules of Construction.--
            ``(1) No implied authority to retaliate for non-protected 
        disclosures.--Nothing in this section may be construed to 
        authorize the discharge of, demotion of, or discrimination 
        against an employee for a disclosure other than a disclosure 
        protected by subsection (a) or to modify or derogate from a 
        right or remedy otherwise available to the employee.
            ``(2) Relationship to state laws.--Nothing in this section 
        may be construed to preempt, preclude, or limit the protections 
        provided for public or private employees under State 
        whistleblower laws.
    ``(g) Definitions.--In this section:
            ``(1) Abuse of authority.--The term `abuse of authority' 
        means an arbitrary and capricious exercise of authority by a 
        contracting official or employee that adversely affects the 
        rights of any person, or that results in personal gain or 
        advantage to the official or employee or to preferred other 
        persons.
            ``(2) Covered funds.--The term `covered funds' means any 
        contract, grant, or other payment received by any non-Federal 
        employer if the Federal Government provides any portion of the 
        money or property that is provided, requested, or demanded.
            ``(3) Employee.--The term `employee'--
                    ``(A) except as provided under subparagraph (B), 
                means an individual performing services on behalf of an 
                employer or a contractor, subcontractor, or agent of an 
                employer; and
                    ``(B) does not include any Federal employee or 
                member of the uniformed services (as that term is 
                defined in section 101(a)(5) of title 10).
            ``(4) Non-federal employer.--The term `non-Federal 
        employer'--
                    ``(A) means--
                            ``(i) any employer--
                                    ``(I) with respect to covered 
                                funds--
                                            ``(aa) the contractor, 
                                        subcontractor, grantee, or 
                                        recipient, as the case may be, 
                                        if the contractor, grantee, or 
                                        recipient is an employer; and
                                            ``(bb) any professional 
                                        membership organization, 
                                        certification or other 
                                        professional body, any agent or 
                                        licensee of the Federal 
                                        government, or any person 
                                        acting directly or indirectly 
                                        in the interest of an employer 
                                        receiving covered funds; or
                                    ``(II) with respect to covered 
                                funds received by a State or local 
                                government, the State or local 
                                government receiving the funds and any 
                                contractor or subcontractor of the 
                                State or local government; and
                            ``(ii) any corporation or person who 
                        receives any Federal funds; and
                    ``(B) does not mean any department, agency, or 
                other entity of the Federal Government.
            ``(5) State or local government.--The term `State or local 
        government' means--
                    ``(A) the government of each of the several States, 
                the District of Columbia, the Commonwealth of Puerto 
                Rico, Guam, American Samoa, the Virgin Islands, the 
                Commonwealth of the Northern Mariana Islands, or any 
                other territory or possession of the United States; or
                    ``(B) the government of any political subdivision 
                of a government listed in subparagraph (A).''.
    (c) Applicability.--
            (1) Pending claims.--Section 4705 of title 41, United 
        States Code, as added by subsection (b), shall apply to 
        complaints submitted pursuant to such section on or after the 
        date of the enactment of this Act.
            (2) New claims.--Section 4705 of title 41, United States 
        Code, as in effect on the day before the date of the enactment 
        of this Act shall apply to claims submitted pursuant to such 
        section before such date of enactment.
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