[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3394 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 3394

  To amend the Energy Reorganization Act of 1974 to modify provisions 
relating to protection of the employees of the Department of Energy and 
                   the Nuclear Regulatory Commission.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 26, 2016

Mr. Wyden (for himself, Mr. Markey, and Mrs. McCaskill) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Energy and Natural Resources

_______________________________________________________________________

                                 A BILL


 
  To amend the Energy Reorganization Act of 1974 to modify provisions 
relating to protection of the employees of the Department of Energy and 
                   the Nuclear Regulatory Commission.

    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 ``Department of Energy Whistleblower 
Accountability Act''.

SEC. 2. DEPARTMENT OF ENERGY AND NUCLEAR REGULATORY COMMISSION EMPLOYEE 
              PROTECTION.

    (a) In General.--Section 211 of the Energy Reorganization Act of 
1974 (42 U.S.C. 5851) is amended--
            (1) in subsection (a)--
                    (A) by striking ``(a)(1) No employer'' and 
                inserting the following:
    ``(a) Discrimination Against Employees.--
            ``(1) In general.--No employer'';
                    (B) in paragraph (1)--
                            (i) in the matter preceding subparagraph 
                        (A), by striking ``his'';
                            (ii) by striking subparagraph (A) and 
                        inserting the following:
                    ``(A) notified the employer or an employee concerns 
                program of--
                            ``(i) an alleged violation of--
                                    ``(I) this Act; or
                                    ``(II) the Atomic Energy Act of 
                                1954 (42 U.S.C. 2011 et seq.); or
                            ``(ii) a violation of any law, rule, or 
                        regulation, an instance of gross mismanagement, 
                        gross waste of funds, or abuse of authority, or 
                        a substantial and specific danger to public 
                        health or safety;'';
                            (iii) in subparagraph (B), by inserting 
                        ``described in subparagraph (A) or otherwise'' 
                        after ``any practice'';
                            (iv) in subparagraph (C), by striking 
                        ``testified before Congress or at any Federal 
                        or State proceeding regarding any provision'' 
                        and inserting the following: ``disclosed to a 
                        Member of Congress or a representative of a 
                        committee of Congress, the Government 
                        Accountability Office, or an Inspector General, 
                        or testified before Congress or at a Federal or 
                        State proceeding regarding--
                            ``(i) an alleged violation or incident 
                        described in subparagraph (A); or
                            ``(ii) any provision'';
                            (v) in subparagraph (D)--
                                    (I) by striking ``a proceeding 
                                under'' and inserting the following: 
                                ``a proceeding--
                            ``(i) under'';
                                    (II) in clause (i) (as so 
                                designated), by striking ``1954, as 
                                amended, or a proceeding for'' and 
                                inserting the following: ``1954 (42 
                                U.S.C. 2011 et seq.);
                            ``(ii) for'';
                                    (III) in clause (ii) (as so 
                                designated), by striking ``, as 
                                amended;'' and inserting ``; or''; and
                                    (IV) by adding at the end the 
                                following:
                            ``(iii) involving an alleged violation or 
                        incident described in subparagraph (A);'';
                            (vi) in subparagraph (E), by striking ``any 
                        such proceeding or;'' and inserting ``any 
                        proceeding described in subparagraph (D); or''; 
                        and
                            (vii) in subparagraph (F), by striking ``, 
                        as amended''; and
                    (C) in paragraph (2)--
                            (i) by redesignating subparagraphs (A) 
                        through (G) as subclauses (I) through (VII), 
                        respectively, and indenting the subclauses 
                        appropriately;
                            (ii) by striking ``(2) For purposes of this 
                        section, the term'' and inserting the 
                        following:
            ``(2) Definitions.--In this section:
                    ``(A) Employer.--
                            ``(i) In general.--The term'';
                            (iii) in subparagraph (A) (as so 
                        redesignated)--
                                    (I) in subclause (IV) of clause (i) 
                                (as so redesignated), by striking ``, 
                                but'' and all that follows through 
                                ``12344''; and
                                    (II) by adding at the end the 
                                following:
                            ``(ii) Exclusion.--The term `employer' does 
                        not include any contractor or subcontractor 
                        covered by Executive Order 12344 (47 Fed. Reg. 
                        4979 (February 3, 1982)).''; and
                            (iv) by adding at the end the following:
                    ``(B) Secretary.--The term `Secretary' means the 
                Secretary of Labor.'';
            (2) in subsection (b)--
                    (A) by striking ``(b)(1) Any employee who believes 
                that he'' and inserting the following:
    ``(b) Complaints; Action by Secretary.--
            ``(1) Complaints.--
                    ``(A) In general.--Any employee who believes that 
                the employee'';
                    (B) in subparagraph (A) of paragraph (1) (as so 
                redesignated)--
                            (i) in the first sentence--
                                    (I) by striking ``180 days'' and 
                                inserting ``1 year''; and
                                    (II) by striking ``of Labor (in 
                                this section referred to as the 
                                `Secretary')''; and
                            (ii) in the second sentence, by striking 
                        ``Upon receipt of such a complaint'' and 
                        inserting the following:
                    ``(B) Notification.--On receipt of a complaint 
                under subparagraph (A)'';
                    (C) in paragraph (2)--
                            (i) by striking ``(2)(A) Upon receipt'' and 
                        inserting the following:
            ``(2) Action by secretary.--
                    ``(A) Investigations; orders; limitation on 
                settlement.--
                            ``(i) Investigations.--
                                    ``(I) In general.--On receipt'';
                            (ii) in subparagraph (A) (as so 
                        redesignated)--
                                    (I) in the second sentence, by 
                                striking ``Within 30 days of the'' and 
                                inserting the following:
                                    ``(II) Completion.--Not later than 
                                30 days after the date of'';
                                    (II) in the third sentence, by 
                                striking ``Within ninety days of the 
                                receipt of such complaint'' and 
                                inserting the following:
                            ``(ii) Orders.--
                                    ``(I) In general.--Not later than 
                                90 days after the date of receipt of a 
                                complaint under paragraph (1)'';
                                    (III) in the fourth sentence, by 
                                striking ``An order'' and inserting the 
                                following:
                                    ``(II) Public notice and 
                                participation.--An order'';
                                    (IV) in the fifth sentence, by 
                                striking ``Upon the conclusion of such 
                                hearing'' and inserting the following:
                                    ``(III) Preliminary orders.--On 
                                conclusion of a hearing under subclause 
                                (II)'';
                                    (V) in the sixth sentence, by 
                                striking ``The Secretary'' and 
                                inserting the following:
                            ``(iii) Limitation on settlement.--The 
                        Secretary''; and
                                    (VI) in clause (i) (as so 
                                designated), by adding at the end the 
                                following:
                                    ``(III) Request for administrative 
                                hearing.--If the Secretary has not 
                                issued any finding relating to an 
                                investigation under this clause by the 
                                date that is 180 days after the date on 
                                which the relevant complaint was filed 
                                under paragraph (1), and if there is no 
                                showing that the delay is due to the 
                                bad faith of the complainant, the 
                                complainant may request a hearing on 
                                the complaint before an administrative 
                                law judge of the Department of 
                                Labor.''; and
                            (iii) in subparagraph (B)--
                                    (I) by striking ``(B) If'' and 
                                inserting the following:
                    ``(B) Secretarial orders.--
                            ``(i) In general.--If'';
                                    (II) in the first sentence--
                                            (aa) by striking ``the 
                                        Secretary shall order the 
                                        person who committed such 
                                        violation to (i) take 
                                        affirmative action to abate the 
                                        violation, and (ii) reinstate'' 
                                        and inserting the following: 
                                        ``the Secretary--
                                    ``(I) shall order the person who 
                                committed the violation--
                                            ``(aa) to take affirmative 
                                        action to abate the violation; 
                                        and
                                            ``(bb) to reinstate''; and
                                            (bb) by striking ``his 
                                        employment, and the Secretary 
                                        may order such person'' and 
                                        inserting the following: 
                                        ``employment; and
                                    ``(II) may order the person'';
                                    (III) in the second sentence, by 
                                striking ``If an order'' and inserting 
                                the following:
                            ``(ii) Costs and expenses.--
                                    ``(I) In general.--Subject to 
                                subclause (II), if an order''; and
                                    (IV) in clause (ii) (as so 
                                designated), by adding at the end the 
                                following:
                                    ``(II) Limitation.--The Secretary 
                                shall assess all administrative and 
                                litigation costs and attorneys fees 
                                incurred under this section only 
                                against the responsible contractor of 
                                the Commission or the Department of 
                                Energy, unless that contractor 
                                demonstrates to the satisfaction of the 
                                Secretary that the Commission or the 
                                Department of Energy, as applicable, 
                                contributed to, or caused, the 
                                violation by the contractor.
                                    ``(III) Exemplary damages; 
                                debarment; suspension.--The Secretary 
                                may assess exemplary damages, and 
                                debar, suspend, delicense, or take any 
                                similar action, against any employer or 
                                responsible employee of an employer 
                                against whom an order is issued under 
                                this subparagraph, as the Secretary 
                                determines to be appropriate to deter 
                                employer retaliation against employees 
                                who report concerns or carry out other 
                                activities protected under this 
                                section.''; and
                    (D) in paragraph (4), by inserting ``(including a 
                demand for a jury trial)'' after ``de novo review'';
            (3) in subsection (e)(2), by striking ``(2) The court'' and 
        inserting the following:
            ``(2) Costs of litigation.--Subject to the limitation 
        described in subsection (b)(2)(B)(ii)(II), a United States 
        district court'';
            (4) in subsection (g)--
                    (A) by striking ``causes a violation'' and 
                inserting the following: ``causes--
            ``(1) a violation''; and
                    (B) by striking ``1954, as amended.'' and inserting 
                the following: ``1954 (42 U.S.C. 2011 et seq.); or
            ``(2) an incident described in subsection (a)(1)(A)(ii).''; 
        and
            (5) in subsection (i)--
                    (A) by striking ``(i) The provisions'' and 
                inserting the following:
    ``(i) Duties and Authority of Department of Energy and 
Commission.--
            ``(1) Posting requirement.--The Secretary of Energy and the 
        Chairperson of the Commission, as applicable, shall ensure that 
        the provisions''; and
                    (B) by adding at the end the following:
            ``(2) Contractor and employee sanctions.--The Secretary of 
        Energy or the Chairperson of the Commission may sanction any 
        officer or employee of the Department of Energy or the 
        Commission, as applicable, who exercises management direction 
        over a contractor who is the subject of a complaint filed under 
        this section in any case in which the Secretary of Energy or 
        the Chairperson determines that--
                    ``(A) the complaint against the contractor is 
                substantiated; and
                    ``(B) the officer or employee of the Department of 
                Energy or the Commission, as applicable, directly or 
                indirectly permitted or sanctioned the violation or 
                incident that was the subject of the complaint.''.
    (b) Conformation of Contracts.--
            (1) In general.--Notwithstanding any other provision of 
        law, not later than 180 days after the date of enactment of 
        this Act, the Secretary of Energy and the Chairperson of the 
        Nuclear Regulatory Commission shall modify all contracts of the 
        Department of Energy and the Nuclear Regulatory Commission, 
        respectively, as the Secretary and the Chairperson determine to 
        be necessary to conform the contracts to the applicable 
        requirements of section 211 of the Energy Reorganization Act of 
        1974 (42 U.S.C. 5851) (as amended by subsection (a)).
            (2) Effect of failure to conform.--A failure by the 
        Secretary of Energy or the Chairperson of the Nuclear 
        Regulatory Commission to modify a contract in accordance with 
        paragraph (1) shall not affect the ability of any employee of 
        the Department of Energy or the Nuclear Regulatory Commission 
        to file a complaint under an applicable provision of section 
        211 of the Energy Reorganization Act of 1974 (42 U.S.C. 5851) 
        (as amended by subsection (a)).
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