[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 268 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                 S. 268

To protect certain whistleblowers seeking to ensure accountability and 
  oversight of the Nation's COVID-19 pandemic response, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 4, 2021

  Ms. Warren (for herself, Mrs. Feinstein, Mr. Markey, Ms. Smith, Mr. 
   Blumenthal, Mr. Brown, Ms. Hirono, Mr. Wyden, Ms. Klobuchar, Mr. 
Sanders, Mr. Durbin, Ms. Baldwin, Mr. Merkley, Mr. Van Hollen, and Mr. 
  Whitehouse) introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
To protect certain whistleblowers seeking to ensure accountability and 
  oversight of the Nation's COVID-19 pandemic response, 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 ``COVID-19 Whistleblower Protection 
Act''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``abuse of authority'' means an arbitrary and 
        capricious exercise of authority by a contracting officer or 
        employee that adversely affects the rights of any individual, 
        or that results in personal gain or advantage to the officer or 
        employee or to preferred other individuals;
            (2) the term ``CARES Act'' means the CARES Act (Public Law 
        116-136);
            (3) the term ``Coronavirus pandemic-related program, 
        project, or activity''--
                    (A) means a program, project, or activity of the 
                executive branch of the Federal Government authorized 
                under or carried out using amounts made available under 
                an Act to respond to or to provide aid or assistance to 
                address, relief from, or funding to address the 
                outbreak of COVID-19 that is enacted before, on, or 
                after the date of enactment of this Act; and
                    (B) includes any program, project, or activity of 
                the executive branch of the Federal Government 
                authorized under or carried out using amounts made 
                available under--
                            (i) the Paycheck Protection Program and 
                        Health Care Enhancement Act (Public Law 116-
                        139), or an amendment made by that Act;
                            (ii) the CARES Act, or an amendment made by 
                        that Act;
                            (iii) the Families First Coronavirus 
                        Response Act (Public Law 116-127), or an 
                        amendment made by that Act;
                            (iv) the Coronavirus Preparedness and 
                        Response Supplemental Appropriations Act, 2020 
                        (Public Law 116-123), or an amendment made by 
                        that Act; or
                            (v) division M or N of the Consolidated 
                        Appropriations Act, 2021 (Public Law 116-260), 
                        or an amendment made by that division;
            (4) the term ``covered funds'' means any contract, 
        subcontract, grant, subgrant, loan, loan guarantee, or other 
        payment for which--
                    (A) the Federal Government provides any portion of 
                the funds or property that is provided, requested, or 
                demanded; and
                    (B) any portion of the funds are appropriated or 
                otherwise made available under or to carry out a 
                Coronavirus pandemic-related program, project, or 
                activity;
            (5) the term ``employee''--
                    (A) except as provided under subparagraph (B), 
                means an individual performing services on behalf of an 
                employer, including any individual working for an 
                employer under a contract with such employer (including 
                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, United States Code);
            (6) the term ``non-Federal employer''--
                    (A) means any employer--
                            (i) with respect to covered funds--
                                    (I) the contractor, subcontractor, 
                                grantee, subgrantee, or recipient, as 
                                the case may be, if the contractor, 
                                subcontractor, grantee, subgrantee, or 
                                recipient is an employer; and
                                    (II) 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
                    (B) does not mean any department, agency, or other 
                entity of the Federal Government;
            (7) the term ``protected individual'' means--
                    (A) an employee of, former employee of, or 
                individual seeking employment with, any non-Federal 
                employer receiving covered funds; or
                    (B) a Federal personal services contractor 
                receiving covered funds, former such Federal personal 
                services contractor, or applicant for a Federal 
                personal services contract involving such funds;
            (8) the term ``reprisal'' means an action (or, as 
        applicable, inaction) that is discharging, demoting, 
        blacklisting, or acting or failing to take an action in a 
        manner prejudicial against, or otherwise discriminating against 
        in any way (including in the hiring process and including by 
        the threat of any such action or inaction) a protected 
        individual as described in section 3(a)(1) for a reason 
        described in subparagraph (A) or (B) of such section; and
            (9) 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).

SEC. 3. PROTECTING WHISTLEBLOWERS.

    (a) Prohibition of Reprisals.--
            (1) In general.--A protected individual may not be 
        discharged, demoted, blacklisted, prejudiced by any action or 
        lack of action, or otherwise discriminated against in any way 
        (including in the hiring process and including by the threat of 
        any such action or inaction) for--
                    (A) disclosing, being perceived as disclosing, or 
                preparing to disclose (including assisting in 
                disclosing, being perceived as assisting in disclosing, 
                or preparing to assist in disclosing and including a 
                disclosure made in the ordinary course of the duties of 
                the protected individual) to an officer or entity 
                described in paragraph (2) information that the 
                protected individual reasonably believes is evidence of 
                misconduct that violates, obstructs, or undermines any 
                statute, rule, or regulation with respect to any 
                Coronavirus pandemic-related program, project, or 
                activity, including--
                            (i) gross mismanagement of an agency 
                        contract, subcontract, grant, or subgrant 
                        relating to covered funds;
                            (ii) a gross waste of covered funds;
                            (iii) a substantial and specific danger to 
                        public health or safety;
                            (iv) an abuse of authority related to the 
                        distribution, implementation, or use of covered 
                        funds, including conflict of interest or 
                        partiality; and
                            (v) a violation of any statute, rule, or 
                        regulation related to an agency contract, 
                        subcontract (including the competition for or 
                        negotiation of a contract or subcontract), 
                        grant, or subgrant, awarded or issued relating 
                        to covered funds; or
                    (B) refusing to obey an order that the protected 
                individual reasonably believes would require that 
                individual to violate a statute, rule, or regulation 
                with respect to any Coronavirus pandemic-related 
                program, project, or activity.
            (2) Officers and entities.--The officers and entities 
        described in this paragraph are--
                    (A) the Pandemic Response Accountability Committee;
                    (B) an inspector general, including the Special 
                Inspector General for Pandemic Relief;
                    (C) the Congressional Oversight Commission;
                    (D) the Comptroller General of the United States;
                    (E) a Member of Congress;
                    (F) a congressional committee;
                    (G) a State or Federal regulatory or law 
                enforcement agency;
                    (H)(i) an individual with supervisory authority 
                over a protected individual; or
                    (ii) another individual who--
                            (I) has authority to investigate, discover, 
                        or terminate misconduct; and
                            (II) works for the non-Federal employer (in 
                        the case of a protected individual described in 
                        section 2(7)(A)), or the Federal Government (in 
                        the case of a protected individual described in 
                        section 2(7)(B));
                    (I) a court or grand jury;
                    (J) an officer or representative of a labor 
                organization; or
                    (K) the head of a Federal agency or a designee of 
                such a head.
            (3) Application.--
                    (A) In general.--For the purposes of paragraph 
                (1)--
                            (i) a protected individual who initiates or 
                        provides evidence of misconduct by a 
                        contractor, subcontractor, grantee, or 
                        subgrantee in any judicial or administrative 
                        proceeding relating to waste, fraud, or abuse 
                        in connection with a Federal contract or grant 
                        shall be deemed to have made a disclosure 
                        covered by such paragraph; and
                            (ii) any discharge, demotion, 
                        discrimination, or other reprisal described in 
                        paragraph (1) is prohibited even if it is 
                        undertaken at the request of an executive 
                        branch officer or employee, unless the request 
                        takes the form of a non-discretionary directive 
                        and is within the authority of the executive 
                        branch official making the request.
                    (B) Protection of whistleblower identity.--
                            (i) In general.--Except as required by law, 
                        an officer or entity described in paragraph (2) 
                        that receives information under paragraph (1) 
                        and any individual or entity to which the 
                        officer or entity discloses the information may 
                        not disclose the identity or identifying 
                        information of the protected individual 
                        providing the information without explicit 
                        written consent of the protected individual.
                            (ii) Notice.--If disclosure of the identity 
                        or identifying information of a protected 
                        individual providing information under 
                        paragraph (1) is required by law, the recipient 
                        shall provide timely notice of the disclosure 
                        to the protected individual.
    (b) Investigation of Complaints.--
            (1) Complaints.--
                    (A) In general.--A protected individual who 
                believes that the individual has been subjected to a 
                reprisal prohibited under subsection (a) may, within 3 
                years after learning of the alleged reprisal, submit a 
                complaint regarding the reprisal to the Secretary of 
                Labor in accordance with paragraph (2).
                    (B) Response.--Not later than 60 days after the 
                submission of a complaint under subparagraph (A), the 
                applicable non-Federal employer (or the applicable 
                agency head in the case of a Federal personal services 
                contract involving covered funds) shall submit an 
                answer to the complaint to the Secretary of Labor.
            (2) Remedy and enforcement authority.--
                    (A) Rules and procedures.--Except to the extent 
                provided otherwise in this section, any action alleging 
                a reprisal prohibited under subsection (a) shall be 
                governed, to the maximum extent practicable, by the 
                rules and procedures for administrative and judicial 
                enforcement, including for investigations, civil 
                actions, appeals, and relief, set forth under section 
                7623(d) of the Internal Revenue Code of 1986.
                    (B) Burden of proof.--The Secretary of Labor, or 
                the officer presiding in a judicial or administrative 
                proceeding, shall apply the legal burdens of proof 
                specified in section 1221(e) of title 5, United States 
                Code, in determining whether a reprisal prohibited 
                under subsection (a) has occurred in accordance with 
                the rules and procedures under subparagraph (A).
                    (C) Access to investigative file of the secretary 
                of labor.--
                            (i) In general.--A protected individual 
                        alleging a reprisal under this section shall 
                        have access to the investigation file of the 
                        Secretary of Labor in accordance with section 
                        552a of title 5, United States Code (commonly 
                        referred to as the ``Privacy Act''). The 
                        investigation of the Secretary of Labor shall 
                        be deemed closed for purposes of disclosure 
                        under such section when an individual files an 
                        appeal to an agency head or a court of 
                        competent jurisdiction.
                            (ii) Civil action.--In the event a 
                        protected individual alleging a reprisal under 
                        this section brings a civil action under this 
                        subsection, the protected individual and the 
                        non-Federal employer (or the head of the 
                        applicable agency in the case of a Federal 
                        personal services contract involving covered 
                        funds), if applicable, shall have access to the 
                        investigative file of the Secretary of Labor in 
                        accordance with section 552a of title 5, United 
                        States Code.
                            (iii) Exception.--The Secretary of Labor 
                        may exclude from disclosure--
                                    (I) information protected from 
                                disclosure by a provision of law; and
                                    (II) any additional information the 
                                Secretary of Labor determines 
                                disclosure of which would impede a 
                                continuing investigation, if such 
                                information is disclosed once such 
                                disclosure would no longer impede such 
                                investigation, unless the Secretary of 
                                Labor 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.
                            (iv) Privacy of information.--The Secretary 
                        of Labor investigating an alleged reprisal 
                        under this section may not respond to any 
                        inquiry or disclose any information from or 
                        about any protected individual alleging such 
                        reprisal, except in accordance with the 
                        provisions of section 552a of title 5, United 
                        States Code, or as required by any other 
                        applicable Federal law.
    (c) General Provisions.--
            (1) Rights retained by employee.--Nothing in this section 
        shall diminish the rights, privileges, or remedies of any 
        protected individual under any Federal or State law, or under 
        any collective bargaining agreement.
            (2) Liability.--Notwithstanding any other provision of law, 
        a protected individual shall be immune from civil and criminal 
        liability with respect to a disclosure by the individual if the 
        individual would be protected from reprisal under subsection 
        (a) for making the disclosure. The protected individual shall 
        bear the burden of proving that the individual would be 
        protected from reprisal under subsection (a) for making the 
        disclosure.
            (3) Nonenforceability of certain provisions waiving rights 
        and remedies or requiring arbitration of disputes.--
                    (A) Waiver of rights and remedies.--Except as 
                provided under subparagraph (C), the rights and 
                remedies provided for in this section may not be waived 
                by any public or private agreement, policy, form, or 
                condition of employment, including by any predispute 
                arbitration agreement.
                    (B) Predispute arbitration agreements.--Except as 
                provided under subparagraph (C), no predispute 
                arbitration agreement shall be valid or enforceable if 
                it requires arbitration of a dispute arising under this 
                section.
                    (C) Exception for collective bargaining 
                agreements.--Notwithstanding subparagraphs (A) and (B), 
                an arbitration provision in a collective bargaining 
                agreement shall be enforceable as to disputes arising 
                under the collective bargaining agreement.
            (4) Requirement to post notice of rights and remedies.--Any 
        non-Federal employer receiving covered funds (and the head of 
        the applicable agency in the case of a Federal personal 
        services contract involving covered funds) shall post notice of 
        the rights and remedies provided under this section.
    (d) Rules of Construction.--
            (1) No implied authority to retaliate for non-protected 
        disclosures.--Nothing in this section may be construed to--
                    (A) authorize the discharge of, demotion of, or 
                discrimination or other reprisal against a protected 
                individual for a disclosure other than a disclosure 
                protected by subsection (a); or
                    (B) modify or derogate from a right or remedy 
                otherwise available to the protected individual.
            (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.
    (e) Complaint Portal.--The Special Inspector General for Pandemic 
Relief, the Pandemic Relief Accountability Committee, and the 
Congressional Oversight Commission shall each establish a public 
website where any individual who believes that the individual has been 
subjected to a reprisal prohibited under subsection (a) may submit a 
complaint regarding the reprisal. Such complaints shall be transmitted 
to the Secretary of Labor for enforcement in accordance with this 
section.
    (f) Authorization of Appropriations.--There is authorized to be 
appropriated to the Secretary of Labor to carry out this Act 
$20,000,000 for fiscal year 2021, to remain available until expended.
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