[Congressional Record Volume 156, Number 114 (Friday, July 30, 2010)]
[House]
[Pages H6486-H6492]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OFFSHORE OIL AND GAS WORKER WHISTLEBLOWER PROTECTION ACT OF 2010
Mr. GEORGE MILLER of California. Mr. Speaker, pursuant to House
Resolution 1574, I call up the bill (H.R. 5851) to provide
whistleblower protections to certain workers in the offshore oil and
gas industry, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5851
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Offshore Oil and Gas Worker
Whistleblower Protection Act of 2010''.
SEC. 2. WHISTLEBLOWER PROTECTIONS; EMPLOYEE PROTECTION FROM
OTHER RETALIATION.
(a) Prohibition Against Retaliation.--
(1) In general.--No employer may discharge or otherwise
discriminate against a covered employee because the covered
employee, whether at the covered employee's initiative or in
the ordinary course of the covered employee's duties--
(A) provided, caused to be provided, or is about to provide
or cause to be provided to the employer or to a Federal or
State Government official, information relating to any
violation of, or any act or omission the covered employee
reasonably believes to be a violation of, any provision of
the Outer Continental Shelf Lands Act (43 U.S.C. 1301 et
seq.), or any order, rule, regulation, standard, or
prohibition under that Act, or exercised any rights provided
to employees under that Act;
(B) testified or is about to testify in a proceeding
concerning such violation;
(C) assisted or participated or is about to assist or
participate in such a proceeding;
(D) testified or is about to testify before Congress on any
matter covered by such Act;
(E) objected to, or refused to participate in any activity,
policy, practice, or assigned task that the covered employee
reasonably believed to be in violation of any provision of
such Act, or any order, rule, regulation, standard, or ban
under such Act;
(F) reported to the employer or a State or Federal
Government official any of the following related to the
employer's activities described in section 3(1): an illness,
injury, unsafe condition, or information regarding the
adequacy of any oil spill response plan required by law; or
(G) refused to perform the covered employee's duties, or
exercised top work authority, related to the employer's
activities described in section 3(1) if the covered employee
had a good faith belief that performing such duties could
result in injury to or impairment of the health of the
covered employee or other employees, or cause an oil spill to
the environment.
(2) Good faith belief.--For purposes of paragraph (1)(E),
the circumstances causing the covered employee's good faith
belief that performing such duties would pose a health and
safety hazard shall be of such a nature that a reasonable
person under circumstances confronting the covered employee
would conclude there is such a hazard.
(b) Process.--
(1) In general.--A covered employee who believes that he or
she has been discharged or otherwise discriminated against
(hereafter referred to as the ``complainant'') by any
employer in violation of subsection (a)(1) may, not later
than 180 days after the date on which such alleged violation
occurs or the date on which the covered employee knows or
should reasonably have known that such alleged violation
occurred, file (or have any person file on his or her behalf)
a complaint with the Secretary of Labor (referred to in this
section as the ``Secretary'') alleging such discharge or
discrimination and identifying employer or employers
responsible for such act. Upon receipt of such a complaint,
the Secretary shall notify, in writing, the employer or
employers named in the complaint of the filing of the
complaint, of the allegations contained in the complaint, of
the substance of evidence supporting the complaint, and of
the opportunities that will be afforded to such person under
paragraph (2).
(2) Investigation.--
(A) In general.--Not later than 90 days after the date of
receipt of a complaint filed under paragraph (1) the
Secretary shall initiate an investigation and determine
whether there is reasonable cause to believe that the
complaint has merit and notify, in writing, the complainant
and the employer or employers alleged to have committed a
violation of subsection (a)(1) of the Secretary's findings.
The Secretary shall, during such investigation afford the
complainant and the employer or employers named in the
complaint an opportunity to submit to the Secretary a written
response to the complaint and an opportunity to meet with a
representative of the Secretary to present statements from
witnesses. The complainant shall be provided with an
opportunity to review the information and evidence provided
by employer or employers to the Secretary, and to review any
response or rebuttal by such the complaint, as part of such
investigation.
(B) Reasonable cause found; preliminary order.--If the
Secretary concludes that there is reasonable cause to believe
that a violation of subsection (a)(1) has occurred, the
Secretary shall accompany the Secretary's findings with a
preliminary order providing the relief prescribed by
paragraph (3)(B). Not later than 30 days after the date of
notification of findings under this paragraph, the employer
or employers alleged to have committed the violation or the
complainant may file objections to the findings or
preliminary order, or both, and request a hearing on the
record before an administrative law judge of the Department
of Labor. The filing of such objections shall not operate to
stay any reinstatement remedy contained in the preliminary
order. Any such hearing shall be conducted expeditiously. If
a hearing is not requested in such 30-day period, the
preliminary order shall be deemed a final order that is not
subject to judicial review. The Secretary of Labor is
authorized to enforce preliminary reinstatement orders in the
United States district court for the district in which the
violation was found to occur, or in the United States
district court for the District of Columbia.
(C) Dismissal of complaint.--
(i) Standard for complainant.--The Secretary shall dismiss
a complaint filed under this subsection and shall not conduct
an investigation otherwise required under subparagraph (A)
unless the complainant makes a prima facie showing that any
behavior described in subparagraphs (A) through (F) of
subsection (a)(1) was a contributing factor in the adverse
action alleged in the complaint.
(ii) Standard for employer.--Notwithstanding a finding by
the Secretary that the complainant has made the showing
required under clause (i), no investigation otherwise
required under subparagraph (A) shall be conducted if the
employer demonstrates, by clear and convincing evidence, that
the employer would have taken the same adverse action in the
absence of that behavior.
(iii) Violation standard.--The Secretary may determine that
a violation of subsection (a)(1) has occurred only if the
complainant demonstrates that any behavior described in
subparagraphs (A) through (F) of such subsection was a
contributing factor in the adverse action alleged in the
complaint.
(iv) Relief standard.--Relief may not be ordered under
subparagraph (A) if the employer demonstrates by clear and
convincing evidence that the employer would have taken the
same adverse action in the absence of that behavior.
(3) Orders.--
(A) In general.--Not later than 90 days after the receipt
of a request for a hearing under subsection (b)(2)(B), the
administrative law judge shall issue findings of fact and
order the relief provided under this paragraph or deny the
complaint. At any time before issuance of an order, a
proceeding under this subsection may be terminated on the
basis of a settlement agreement entered into by the
Secretary, the complainant, and the person alleged to have
committed the violation. Such a settlement may not be agreed
by such parties if it contains conditions which conflict with
rights protected under this Act, are contrary to public
policy, or include a restriction on a complainant's right to
future employment with employers other than the specific
employers named in the complaint.
(B) Content of order.--If, in response to a complaint filed
under paragraph (1), the administrative law judge determines
that a violation of subsection (a)(1) has occurred, the
administrative law judge shall order the employer or
employers who committed such violation--
(i) to take affirmative action to abate the violation;
(ii) to reinstate the complainant to his or her former
position together with compensation (including back pay and
prejudgment interest) and restore the terms, conditions, and
privileges associated with his or her employment; and
(iii) to provide compensatory and consequential damages,
and, as appropriate, exemplary damages to the complainant.
(C) Attorney fees.--If such an order is issued under this
paragraph, the Secretary, at the request of the complainant,
shall assess against the employer or employers a sum equal to
the aggregate amount of all costs and expenses (including
attorneys' and expert witness fees) reasonably incurred by
the complainant for, or in connection with, the bringing of
the complaint upon which the order was issued at the
conclusion of any stage of the proceeding.
(D) Bad faith claim.--If the Secretary finds that a
complaint under paragraph (1) is frivolous or has been
brought in bad faith, the Secretary may award to the
prevailing employer reasonable attorneys' fees, not exceeding
$1,000, to be paid by the complainant.
(E) Administrative appeal.--Not later than 30 days after
the receipt of findings of fact or an order under
subparagraph (B), the employer or employers alleged to have
committed the violation or the complainant may file, with
objections, an administrative appeal with the Secretary, who
may designate such appeal to a review board. In reviewing a
decision and order of the administrative law judge, the
Secretary shall affirm the decision and order if it is
determined that the factual findings set forth therein are
supported by substantial evidence and the decision and order
are made in accordance with applicable law. The Secretary
shall issue a final decision and order affirming, or
reversing, in whole or in part, the decision under
[[Page H6487]]
review within 90 days after receipt of the administrative
appeal under this subparagraph. If it is determined that a
violation of subsection (a)(1) has occurred, the Secretary
shall order relief provided under subparagraphs (B) and (C).
Such decision shall constitute a final agency action with
respect to the matter appealed.
(4) Action in court.--
(A) In general.--If the Secretary has not issued a final
decision within 300 days after the filing of the complaint,
the complainant may bring an action at law or equity for de
novo review in the appropriate district court of the United
States, which action shall, at the request of either party to
such action, be tried by the court with a jury. The
proceedings shall be governed by the same legal burdens of
proof specified in paragraph (2)(C).
(B) Relief.--The court may award all appropriate relief
including injunctive relief, compensatory and consequential
damages, including--
(i) reinstatement with the same seniority status that the
covered employee would have had, but for the discharge or
discrimination;
(ii) the amount of back pay sufficient to make the covered
employee whole, with prejudgment interest;
(iii) exemplary damages, as appropriate; and
(iv) litigation costs, including reasonable attorney fees
and expert witness fees.
(5) Review.--
(A) In general.--Any person aggrieved by a final order
issued under paragraph (3) or a judgment or order under
paragraph (4) may obtain review of the order in the
appropriate United States Court of Appeals. The petition for
review must be filed not later than 60 days after the date of
the issuance of the final order of the Secretary. Review
shall be accordance with chapter 7 of title 5, United States
Code. The commencement of proceedings under this subparagraph
shall not, unless ordered by the court, operate as a stay of
the order.
(B) No other judicial review.--An order of the Secretary
with respect to which review could have been obtained under
subparagraph (A) shall not be subject to judicial review in
any other proceeding.
(6) Failure to comply with order.--Whenever any employer
has failed to comply with an order issued under paragraph
(3), the Secretary may obtain in a civil action in the United
States district court for the district in which the violation
was found to occur, or in the United States district court
for the District of Columbia, all appropriate relief
including, but not limited to, injunctive relief and
compensatory damages.
(7) Civil action to require compliance.--
(A) In general.--Whenever an employer has failed to comply
with an order issued under paragraph (3), the complainant on
whose behalf the order was issued may obtain in a civil
action in an appropriate United States district court against
the employer to whom the order was issued, all appropriate
relief.
(B) Award.--The court, in issuing any final order under
this paragraph, may award costs of litigation (including
reasonable attorneys' and expert witness fees) to any party
whenever the court determines such award is appropriate.
(c) Construction.--
(1) Effect on other laws.--Nothing in this section preempts
or diminishes any other safeguards against discrimination,
demotion, discharge, suspension, threats, harassment,
reprimand, retaliation, or any other manner of discrimination
provided by Federal or State law.
(2) Rights of employees.--Nothing in this section shall be
construed to diminish the rights, privileges, or remedies of
any employee under any Federal or State law or under any
collective bargaining agreement. The rights and remedies in
this section may not be waived by any agreement, policy,
form, or condition of employment.
(d) Enforcement of Nondiscretionary Duties.--Any
nondiscretionary duty imposed by this section shall be
enforceable in a mandamus proceeding brought under section
1361 of title 28, United States Code.
(e) Posting of Notice and Training.--All employers shall
post a notice which has been approved as to form and content
by the Secretary of Labor in a conspicuous location in the
place of employment where covered employees frequent which
explains employee rights and remedies under this section.
Each employer shall provide training to covered employees of
their rights under this section within 30 days of employment,
and at not less than once every 12 months thereafter, and
provide covered employees with a card which contains a toll
free telephone number at the Department of Labor which
covered employees can call to get information or file a
complaint under this section.
(f) Designation by the Secretary.--The Secretary of Labor
shall, within 30 days of the date of enactment of this Act,
designate by order the appropriate agency officials to
receive, investigate, and adjudicate complaints of violations
of subsection (a)(1).
SEC. 3. DEFINITIONS.
As used in this Act the following definitions apply:
(1) The term ``covered employee''--
(A) means an individual performing services on behalf of an
employer that is engaged in activities on or in waters above
the Outer Continental Shelf related to--
(i) supporting, or carrying out exploration, development,
production, processing, or transportation of oil or gas; or
(ii) oil spill cleanup, emergency response, environmental
surveillance, protection, or restoration, or other oil spill
activities related to occupational safety and health; and
(B) includes an applicant for such employment.
(2) The term ``employer'' means one or more individuals,
partnerships, associations, corporations, trusts,
unincorporated organizations, nongovernmental organizations,
or trustees, and includes any agent, contractor,
subcontractor, grantee or consultant of such employer.
(3) The term ``Outer Continental Shelf'' has the meaning
that the term ``outer Continental Shelf'' has in the Outer
Continental Shelf Lands Act (43 U.S.C. 1331 et seq.).
The SPEAKER pro tempore. Pursuant to House Resolution 1574, the
amendment printed in part C of House Report 111-582 is adopted, and the
bill, as amended, is considered read.
The gentleman from California (Mr. George Miller) and the gentleman
from Minnesota (Mr. Kline) each will control 30 minutes.
The Chair recognizes the gentleman from California.
General Leave
Mr. GEORGE MILLER of California. Mr. Speaker, I ask unanimous consent
that Members have 5 legislative days in which to revise and extend
their remarks and submit extraneous material for the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. GEORGE MILLER of California. Mr. Speaker, the legislation before
the House today closes a loophole in current law regarding the rights
of workers to blow the whistle over unsafe conditions on offshore oil
rigs.
As the Obama administration told Congress, individuals working on the
Outer Continental Shelf, like on the Deepwater Horizon, shockingly have
zero whistleblower protections. This is unconscionable. There is no
good policy reason for treating onshore and offshore workers
differently. This is because the whistleblower may be the only thing
that's standing between a safe workplace and a catastrophe.
H.R. 5851, the Offshore Oil and Gas Worker Whistleblower Protection
Act, will fix this glaring omission. Whether it is refineries,
underground coal mines, or oil drilling rigs, our enforcement agencies
cannot be at all workplaces at all times. That's why it's up to workers
to be the eyes and the ears when these agencies can't.
While the precise cause of the British Petroleum Deepwater Horizon
tragedy is still under investigation, two things are clear from the
media reports and from the congressional hearings. First, workers on
the rig had safety concerns prior to the tragedy. And second, workers
believed that they would lose their job if they raised these safety
concerns with management.
Not long before the Deepwater Horizon explosion, rig worker Jason
Anderson told his wife that working conditions on the rig were not
safe. He talked to her about getting his will and getting his affairs
in order. But he wouldn't talk about his safety concerns when he was on
the rig. He once told his wife he couldn't talk about the safety
concerns because ``the walls are too thin.'' Jason did not survive the
explosion. He perished, along with 10 others. He left behind a wife and
two young children.
No worker should ever have to choose between his or her life and
their livelihood, but that's a decision these workers face. As
Deepwater Horizon worker Daniel Barron said, safety is only convenient
for employers when they needed it. There was a lot of rhetoric that
everybody had the right to call a timeout for safety, but when push
comes to shove, if you called that timeout, Daniel Barron said, you're
going to get fired.
Mr. Speaker, this bill is narrowly tailored and will protect offshore
workers who call for a timeout for safety. It simply extends the
whistleblower protections to workers engaged in oil and gas
exploration, drilling, production, and oil spill cleanup on the Outer
Continental Shelf. It mirrors other recently enacted whistleblower laws
contained in the Consumer Product Safety Improvement Act and the
Federal Railroad Safety Act.
Specifically, H.R. 5851 will prohibit discrimination against
employees who report violations of the Outer Continental Shelf Lands
Act. It protects workers who report injuries or unsafe conditions to an
employer or the government, and protects workers who
[[Page H6488]]
refuse to perform on the assigned task when there is a reasonable
belief of injury or spill. The bill will also require employers to post
notice and provide training that explains these rights.
Finally, like other modern whistleblowing statutes, the bill provides
for a fair process for resolving whistleblower complaints at the
Department of Labor or through the courts if necessary. The Education
and Labor Committee recently approved strong mine safety and OSHA
reform bills that include nearly identical whistleblower protections.
I want to thank my colleague, Congressman Markey, and his staff for
their work on this legislation, and Mr. Conyers and the Judiciary
Committee for their constructive advice and suggestions.
I again want to thank Mr. Markey. He offered very similar
whistleblower language in the Energy and Commerce Committee, and they
reported that language out as part of a larger oil spill response bill
48-0.
{time} 1230
I urge my colleagues to support the closing of this dangerous
loophole and provide the protections for these workers. Workers in the
oil and gas industry deserve a voice on safety issues regardless of
whether or not they work onshore or offshore.
Committee on the Judiciary,
House of Representatives,
Washington, DC, July 29, 2010.
Hon. George Miller,
Chairman, Committee on Education and Labor, U.S. House of
Representatives, Washington, DC.
Dear Chairman Miller: This is to advise you that, as a
result of your having consulted with us on provisions in H.R.
5851, the Offshore Oil and Gas Worker Whistleblower
Protection Act of 2010, that fall within the rule X
jurisdiction of the Committee on the Judiciary, we are able
to agree to waive seeking a formal referral of the bill, in
order that it may proceed without delay to the House floor
for consideration.
The Judiciary Committee takes this action with our mutual
understanding that by foregoing consideration of H.R. 5851 at
this time, we do not waive any jurisdiction over subject
matter contained in this or similar legislation, and that our
Committee will be appropriately consulted and involved as the
bill or similar legislation moves forward, so that we may
address any remaining issues in our jurisdiction. Our
Committee also reserves the right to seek appointment of an
appropriate number of conferees to any House-Senate
conference involving this or similar legislation, and
requests your support for any such request.
I would appreciate your including this letter in the
Congressional Record during consideration of the bill on the
House floor. Thank you for your attention to this request,
and for the cooperative relationship between our two
committees.
Sincerely,
John Conyers, Jr.
Chairman.
____
Committee on Education & Labor,
U.S. House of Representatives,
Washington, DC, July 29, 2010.
Hon. John Conyers,
Chairman, Committee on the Judiciary, U.S. House of
Representatives, Washington, DC.
Dear Chairman Conyers: I am writing in response to your
letter of July 29, 2010, concerning the Committee on the
Judiciary's jurisdictional interest in H.R. 5851, the
Offshore Oil and Gas Worker Whistleblower Protection Act of
2010.
Acknowledging your jurisdictional interest in matters being
considered in H.R. 5851, we have consulted with your
Committee on several provisions and appreciate the
contributions you have made in crafting the legislation.
Thank you for your willingness to allow the bill to proceed
to the floor expeditiously by waiving any referral.
We will continue to appropriately consult and involve your
Committee as the bill moves forward and will support your
request to have Judiciary conferees appointed during any
House-Senate conference. I will submit a copy of your July
29, 2010, letter and this response to the Congressional
Record during floor consideration.
Thank you for your cooperation in this matter.
Sincerely,
George Miller,
Chairman.
I reserve the balance of my time.
Mr. KLINE of Minnesota. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, whistleblower protections are a longstanding part of our
Federal safety and health laws. Simply put, they protect workers'
ability to speak freely about dangers in the workplace. They allow
working men and women to protect themselves and their coworkers. The
ultimate goals of our worker safety laws should be that no worker ever
needs to blow the whistle. We need a culture of safety in our
workplaces, a system in which employers have the information and
resources they need to comply with the law and avoid unnecessary risks
to workers' health and safety.
But in those rare instances where employers are not following the law
and workers' safety is at risk, we offer protections to those
individuals who speak up. These protections are widely available to
workers and enforced by the Whistleblower Protection Program at the
Occupational Safety and Health Administration.
However, we recently became aware that a gap may exist in those
protections. Safety on offshore oil rigs is overseen by the Coast Guard
and the Bureau of Ocean Energy Management, unlike most workplaces where
safety is overseen by OSHA. As a result, it is not clear whether these
workers are covered by the OSH Act's whistleblower protections or any
of the 17 other statutes enforced by OSHA's Whistleblower Protection
Program. Some might argue oil rig workers are covered by the Maritime
Transportation and Security Act, while others point to a 1983 agreement
in which OSHA retained whistleblower authority for these workers.
In the few days since this legislation was introduced, we have found
confusion and conflicting information. This confusion was illustrated
in recent news accounts detailing the experiences of workers on the
Deepwater Horizon who were concerned about safety practices on the rig
but were afraid to voice those concerns. If workers themselves believe
they can be fired or otherwise retaliated against for identifying
safety concerns, we must create or restate those protections. It is as
simple as that. Yet the bill before us is not so simple.
H.R. 5851 creates a brand-new whistleblower framework for any
individual directly or indirectly involved with a company that drills
on the Outer Continental Shelf. We all agree on the need to clarify
protections for workers on the rigs, but what about other workers,
those who are already covered by other law?
H.R. 5851 adds a new layer of legal processes, deadlines, and
remedies for workers who are already covered. It creates legal
confusion, particularly for those workers who would now be covered by
parallel and possibly conflicting statutes.
I'm also troubled by the differences between these new whistleblower
protections and those existing under current law. This bill seems to
prioritize resolution by the Federal courts, adding costs and delaying
results for workers who simply want to remain on the job.
These are the types of questions normally addressed through hearings
and committee votes. Members weigh the opinions of Federal regulatory
officials, legal experts, industry personnel, and workers themselves.
We evaluate which agency would be best suited to enforce protections
and remedies under the law, and we prevent duplication and confusion by
clearly defining which workers are covered.
Unfortunately, we did not use that process for H.R. 5851. It was
never given a committee hearing. It was never given a committee vote.
Last month, the committee held a hearing to examine broad
jurisdictional questions about which Federal agency is ultimately
responsible for worker safety on offshore oil rigs. We heard from the
Coast Guard, the National Institute for Occupational Safety and Health,
OSHA, and the Bureau of Ocean Energy Management. Those agencies told us
they did not know which Federal whistleblower laws, if any, applied to
workers on oil rigs on the Outer Continental Shelf. There was
confusion.
Since that time, the committee has heard no further testimony,
received no further information, and considered no legislation. Yet, on
Monday of this week, the majority introduced H.R. 5851 and promptly
announced Members of the full House would be asked to cast a vote on
whether these are the best protections for workers on oil rigs. And, as
has become all too common, we are here under a closed rule with no
amendments being considered.
Mr. Speaker, this is a serious issue and it deserves a serious
process, one it has not been given.
I reserve the balance of my time.
Mr. GEORGE MILLER of California. I yield 4 minutes to the gentlewoman
from California (Ms. Woolsey), the subcommittee chair on the Education
and Labor Committee.
[[Page H6489]]
Ms. WOOLSEY. Mr. Speaker, I rise in strong support of H.R. 5851, the
Offshore Oil and Gas Worker Whistleblower Protection Act of 2010.
Chairman Miller, I want to thank you and commend you for the
commitment to the health and safety of American workers. And Ranking
Member Kline, thank you very much for outlining exactly the confusion
that we are faced with regarding employee safety, particularly on our
oil rigs.
Now, following the Gulf of Mexico disaster, it is clearer than ever
that providing strong protections to offshore oil and gas workers would
be a positive step in encouraging workers to speak out about work
safety and health issues at the worksite. Obviously, inspectors cannot
be at all workplaces at all times, and so the system relies on
willingness of employees to come forward, because these employees,
these workers, know their worksite better than anyone else. Yet too
many workers fear doing so because they fear repercussions. They don't
fear imagined repercussions; they fear real ones.
We heard this from the families of the 29 miners who were killed at
the Upper Big Branch Mine in West Virginia and from the families of
those miners who died at the Crandall Canyon, Darby, Sago, and Aracoma
mines. We've heard this in the wake of other workplace disasters as
well.
And now we have discovered that before the BP disaster in the gulf
which took the lives of 11 workers, workers did not come forward about
safety hazards because they were afraid they would lose their jobs.
Sadly, their fears were well-founded. Those brave souls who blow the
whistle often do lose their jobs and suffer other indignities such as
harassment, intimidation, and blacklisting. In this situation of the BP
disaster, they lost their lives.
In May of 2007, my Subcommittee on Workforce Protections held a
hearing on the adequacy of whistleblower protections. The now famous
whistleblower Jeffrey Wigand, who ``blew the whistle'' on Big Tobacco,
testified at that hearing. He was not protected by any antiretaliation
law when he lost his job. He was not protected when he was threatened,
harassed, and intimidated for his actions.
Like Mr. Wigand, offshore gas and oil workers have no whistleblower
protections. This is absolutely unacceptable, and we know it.
In crafting H.R. 5851, we ensure workers are actually encouraged to
come forward to report unsafe conditions by providing a meaningful
process to adjudicate complaints that also comports with due process,
and by providing sufficient remedies to whistleblowers, including
temporary reinstatement, backpay, and other damages.
H.R. 5851's provisions are similar to the whistleblower provisions in
the Protecting America's Workers Act, which brings the Occupational
Safety and Health Act into the 21st century. H.R. 5851 also emulates
other modern whistleblower statutes, such as the Consumer Product
Safety Improvement Act.
I'm proud to be an original cosponsor of the Offshore Oil and Gas
Worker Whistleblower Protection Act, and I urge my colleagues to vote
to protect all vulnerable workers.
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore. Members are reminded to not traffic the well
when other Members are under recognition.
Mr. KLINE of Minnesota. Mr. Speaker, I am pleased to yield such time
as he may consume to the ranking member on the Health Subcommittee, the
gentleman from Georgia, Dr. Price.
Mr. PRICE of Georgia. Mr. Speaker, I thank my friend, Colonel Kline,
for the wonderful leadership that he has provided on our committee and
the focus that he's given to this issue.
Mr. Speaker, never let a crisis go to waste. It's the defining
principle of how this administration and how this Congress govern.
{time} 1240
We're facing a devastating crisis right now, an oil spill which has
ravaged the Gulf of Mexico both economically and environmentally. Out
of this crisis there have been reports raising the issue of worker
safety on oil rigs. Now, such reports raise very serious questions,
which should be dealt with in a very serious manner, matters that
require probing and oversight by Congress so that workers are
adequately protected and free to report safety concerns.
However, what we've gotten from this majority is an unserious
response, a political response more interested in taking advantage of
the latest crisis. Remember, never let a crisis go to waste.
The bill before us today was introduced just this week. There's been
no hearing on it, no committee consideration, no input from members of
the committee, certainly on our side. Another rush to the floor, don't
read the bill, don't read the bill, don't worry about it. Remember,
never let a crisis go to waste.
And so what's the result? Confusion. With little time to review, we
don't know what if any existing Federal whistleblower laws already
apply to workers on offshore oil rigs and other employees in these
companies. We don't know which agency is best equipped to enforce these
new whistleblower protections. These are things that would normally,
Mr. Speaker, in the course of activity come out during a committee
hearing, during a normal open committee process. But no committee
hearing, no committee hearing here. Remember, never let a crisis go to
waste.
With this Congress, all the serious policy issues are secondary to
the politics. Instead, what we get is a bill that establishes a whole
new bureaucracy, a whole new whistleblower framework for a specific
class of workers. It's an expansive set of protections that applies to
health and safety and environmental and any other standards under the
OCS Land Act; and yet it's untested, without an explicit description of
which agency would even enforce the program.
Digging into the language a little deeper, it appears to favor
resolution of complaints in Federal court, adding costs and inviting
litigation. Remember, never let a crisis go to waste.
The Department of Labor only had 300 days to issue a final decision
on a complaint or it gets kicked to the U.S. district court. Perhaps
this wouldn't be a problem but there's an incentive to stretch out
cases. Why, Mr. Speaker? Because bad-faith claims are not deterred.
Employers can only recoup $1,000 total in attorneys' fees, which for
some law firms--I know this won't come as any surprise to the Speaker--
for some law firms less than a day's work; and even if the Department
of Labor decides on a complaint before that deadline and defines it to
be nonmeritorious, the case could still move on to court, creating a
Federal right to sue. Remember, never let a crisis go to waste.
Now, later, Mr. Speaker, Republicans are going to offer a motion to
recommit which is a better solution. Our positive solution gets to the
heart of the issue, ensuring that workers are adequately protected and
free to report safety concerns. It's not simply taking advantage of the
latest crisis or rewarding plaintiff's trial lawyers for their support
of the Democrat Party.
So, Mr. Speaker, I urge my colleagues to support the positive
appropriate solution, the Republican motion to recommit, and defeat the
partisan bill now before us.
Mr. GEORGE MILLER of California. I yield 6 minutes to the gentleman
from Massachusetts (Mr. Markey), a coauthor of this legislation and the
author of the whistleblower protection provisions of the Energy and
Commerce bill.
Mr. MARKEY of Massachusetts. I thank the gentleman, and I thank
George Miller for his decades of work in ensuring that whistleblower
protections are built into the laws of our country in order to ensure
that workers are not living in terror, that they stand up for safety.
During the last 3 months, Congress has conducted a vigorous
investigation into the causes and response of the BP Deepwater Horizon
disaster. What we've found was that BP was woefully unprepared for this
kind of a spill. From the beginning, BP has been making it up as they
go along. BP said the rig could not sink. It did. They said they could
handle an Exxon Valdez size spill every day. They couldn't.
Early on in the disaster, BP was talking about using a junk shot
where they shoot golf balls into the well. Well, when we heard that
they were
[[Page H6490]]
bringing in the best minds and that they were working on this problem,
we thought they meant MIT, not the PGA.
BP also talked in the first 3 weeks about deploying nylons and hair
to soak up the oil. The American people expected a response on the par
with the Apollo Project, not ``Project Runway.''
And from the start, BP has been more interested in protecting its own
liability than preserving the livability of the Gulf of Mexico. BP
started by saying this spill was 1,000 barrels a day. It wasn't. They
knew it. They said it was 5,000 barrels per day; they knew that it was
not. And by now, we know it was much, much larger, upwards of 60,000
barrels a day.
Our investigation uncovered that no major oil company would have been
able to respond to this type of spill any better than BP. In fact, the
Gulf of Mexico oil spill response plans from Exxon Mobil, Chevron,
ConocoPhillips and Shell were 90 percent identical to BP's. They were
such dead ringers for each other that they listed the phone number for
the same long-deceased expert as the person to call. The response plans
also included plans to evacuate walruses from the Gulf of Mexico, even
though walruses haven't called the Gulf of Mexico home for 3 million
years. It seems that the only spill response technology that the oil
industry had invested in is a Xerox machine. No oil company took this
responsibility seriously.
The legislation that we will vote on today will ensure that there
will be accountability, stronger regulations, and a requirement that
before oil companies drill ultra-deep that they have the technology
necessary to make it ultra-safe and can respond to a spill ultra-fast.
We need whistleblowers to make sure that we never again see what has
happened in the Gulf of Mexico, and that is the important piece of
legislation that we are debating right now: whistleblower protection.
In this legislation, we are putting into place state-of-the-art
protections for oil and gas workers who are retaliated against because
they report safety concerns or they report a failure on the part of
their employer to have a good blowout response plan.
We know from our investigation both into this disaster and another BP
rig operating in the gulf, the Atlantis rig, that BP has cut corners on
safety, even if it meant risking workers' lives and environmental
calamity. For example, an employee working on the BP Atlantis rig
warned in 2009 that BP was failing to meet its requirement to maintain
accurate engineering drawings aboard the rig which would enable an
effective response to an accident. The whistleblower was fired after
making his disclosure. BP continues to deny this problem on the
Atlantis rig exists, even though former Federal district court judge
Stanley Sporkin who was hired by BP to serve as an independent
ombudsman has confirmed that the whistleblower's allegations are true.
And on the BP Deepwater Horizon, workers were also fearful of the
extent of the problems aboard the Deepwater Horizon. Jason Anderson
told his wife that he couldn't discuss his concerns because, quote, the
walls are too thin. Mr. Anderson died in the April explosion.
This bill will ensure that all workers who report safety or blowout
response plan concerns who are then fired, demoted or otherwise
retaliated against by their employers will be protected. These workers
will be entitled to due process at the Department of Labor; and if the
Department of Labor fails to act, they will be entitled to a jury
trial. They will also be entitled to receive appropriate damages to
ensure that they are made whole.
{time} 1250
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GEORGE MILLER of California. I yield the gentleman 2 additional
minutes.
Mr. MARKEY of Massachusetts. I thank the gentleman.
In the wake of the Deepwater Horizon catastrophe, we have heard that
the workers aboard the rig had safety concerns. But in the end, they
were powerless to stop the cascading string of bad decisions by BP that
led to the disaster. They clearly feared for the loss of their jobs and
of their livelihoods.
Our legislation will protect these brave Paul Reveres in the oil
industry who sound alarms in the future. I thank Chairman Miller for
his historic work on this legislation. I thank all of the Members who
are focusing on this issue, so that people who stand up to protect the
safety of workers do not have to lose their jobs.
Mr. GEORGE MILLER of California. Will the gentleman yield?
Mr. MARKEY of Massachusetts. I yield to the gentleman from
California.
Mr. GEORGE MILLER of California. I know how hard you worked to try to
get the accurate figures of what the blowout meant in terms of volume
of oil going into the gulf.
I just wonder, if we had had whistleblower protections and one of the
employees at BP who knew what the real volume was as opposed to what
the executives were telling the American people and the rest of the
world, we might have had information sooner which would have allowed us
to respond in a different fashion than we did when we had bad
information because of the concealment of the accuracy of which we
found when you finally got the cameras turned on.
Mr. MARKEY of Massachusetts. The gentleman put his finger right on
it. There would be a completely different response if the spill were
not 1,000 barrels or 5,000 barrels per day but, rather, 30,000 to
60,000 barrels per day. It delayed the response. Much more harm has
been done to the people in the Gulf of Mexico. There was a greater
delay in bringing in all of the skimmers, all of the new technologies
to be able to deal with this spill. If a whistleblower knew that it was
not 1,000, knew that it was not 5,000, they should not have to fear
that they would lose their job if they wanted to protect the oceans of
America and the workers in the Gulf of Mexico rather than being afraid
that they would lose their own job and their own family's livelihood.
That is why this legislation is so important.
Mr. GEORGE MILLER of California. I thank the gentleman.
Mr. KLINE of Minnesota. Mr. Speaker, I reserve the balance of my
time.
Mr. GEORGE MILLER of California. I yield 3 minutes to the gentleman
from New York (Mr. Engel).
Mr. ENGEL. I thank the chairman for yielding to me, and I rise in
strong support of H.R. 5851.
A couple of speakers before me, the gentleman from Georgia on the
other side of the aisle kept repeating the mantra of ``never let a
crisis go to waste,'' and he was deriding this side because apparently
he thinks that we should always forget a crisis and we should not take
into account what we've learned because of the crisis.
You know, it is because of this crisis that we really need to
redouble our efforts to protect people who live all around the Gulf of
Mexico, to protect the workers, to protect the public from companies
that really couldn't care less about them; and this Whistleblower
Protection Act is going to do exactly that.
Now I'm on the Energy and Commerce Committee. I sat through every
hearing that we had with oil officials and with the BP officials. And
I'll tell you the truth; it was insulting the way Mr. Hayward came and
wouldn't tell us anything because he was obviously told by his lawyers
not to tell us, and the arrogance dripping from his mouth where he just
seemed to not care at all about the havoc that BP had put forward in
the gulf and even with the people who were killed.
=========================== NOTE ===========================
July 30, 2010 on Page H6490 the following appeared: Mr. Heyward
came and wouldn't tell us . . . Heyward. We asked him serious
questions
The online version should be corrected to read: Mr. Hayward came
and wouldn't tell us . . . Hayward. We asked him serious questions
========================= END NOTE =========================
So today we are passing this Whistleblower Protection Act which will
protect, as the gentleman from Massachusetts (Mr. Markey) said, people
who come forward and say, ``Hey, you know what? What's going on isn't
right, and it needs to stop, and I don't want my job to be in jeopardy
because I'm telling the truth.''
We're also going to vote on the CLEAR Act as well. And I want to
remind my colleagues that we desperately also need comprehensive clean
energy and climate legislation after this. The BP explosion in the gulf
has been disastrous. It has led to 11 deaths, devastated the gulf
economy, and just polluted the environment.
We heard testimony in the Energy and Commerce Committee from Tony
Hayward. We asked him serious questions, and he refused to answer our
questions. BP has not been truthful at
[[Page H6491]]
all about what has been happening in the gulf from the very beginning.
They've used and abused the system, and we cannot allow that. We have
to work to ensure that oil companies like BP are not permitted to treat
the environment as their own private playground, or put at risk the
livelihoods of thousands upon thousands of hardworking Americans.
I want to be perfectly clear here--this is BP's spill and BP should
pay for it. There should be no taxpayer money spent on cleanup. But BP
had the gall to announce this week that they're looking to cut their
losses at the expense of the American people by claiming tax benefits
for costs associated with this oil spill. That is shameful, and that's
wrong, and it ought to be stopped.
That is why today I am introducing the Denial of Tax Benefits to
Offending Oil Polluters Act of 2010. This legislation would prohibit
oil polluters from receiving tax benefits for costs associated with an
oil spill.
I look forward to passing this legislation today, H.R. 5851, and
debating my bill in the future to be sure that we hold bad actors like
BP accountable for their irresponsible decisions and their devastating
actions.
I thank the chairman for his strong leadership in this regard.
Mr. GEORGE MILLER of California. I thank the gentleman.
Mr. KLINE of Minnesota. I continue to reserve.
Mr. GEORGE MILLER of California. Mr. Speaker, I yield 3 minutes to
the gentlewoman from Texas (Ms. Jackson Lee).
Ms. JACKSON LEE of Texas. I thank the distinguished chairman and I
thank you for your constant forward thinking on the workers of America.
Coming from the gulf region, I don't know if any of you have ever
seen an oil rig, particularly one as large as Deepwater Horizon. It is
the home of the workers. It is their home away from home. They eat
there, they sleep there, they work very hard there, and they recreate
there. They're there 24 hours a day. Some may be a cook. Someone may be
a sophisticated engineer. Some may be a seaman and that is their
profession. But they're working there; and, therefore, they are looking
to ensure that their home away from home is safe.
As I've listened to administration officials who are now all about
the gulf, I can tell you that the workers who love their industry and
love their jobs are excited about the call for transparency and
protection and increased safety for this industry. They're excited
about what is going on as it relates to those who would engage in
telling the truth. If you look at the facts in some of the hearings
that we've been in, you will know that there have been a lot of
conversations with subordinates trying to talk to supervisors.
Something was awry, but no one listened. We may have even heard that
some companies left the rig early on because they were disturbed. Or as
my colleague mentioned, the young man by the name of Jason who even
told his wife, ``Prepare my will.'' And so it is important today that
we stand up for the workers.
This is a concise, articulate, whistleblower language and
legislation, prohibiting an employer from discharging or otherwise
discriminating against anyone who talks to State or Federal officials
or anyone else; telling the truth, saving lives. As well, it protects
them if they prepare or testify in front of any governmental entity
talking about unsafe conditions. Imagine how many lives that could save
in any other industry as well.
The bill establishes a process for an employee to appeal, giving them
the justice of the Constitution that does not deny you benefits without
due process. Is that a problem? They live there. This is their home. It
makes an aggrieved employee eligible for reinstatement and back pay.
Some of these jobs are the only jobs these men or women can secure to
protect and provide for their family. We live in the gulf. We're
shrimpers and fishermen and oystermen; and yes, we work in this
industry. It requires employers to post a notice that explains employee
rights and remedies under the act.
I look forward to working with the chairman as we look at other ways
of helping these employees who are under stress, providing mental
health services and counseling after this terrible devastation. It may
have to continue even after BP finishes their work. But this is the
right direction to go. This speaks well of this Congress who will stand
alongside of workers and make a difference in their lives and the lives
of their families.
I ask you to vote for this legislation.
Today, I rise in support of H.R. 5851--the Offshore Oil and Gas
Worker Whistleblower Protection Act. We are all well aware of the
disaster that occurred when the Deepwater Horizon rig exploded, but it
might have been prevented if we had listened to voices expressing
concern. The men and woman who bravely come out and expose the
injustices and violations that take place at their place of work are
the eyes and ears for the American public. These people should be able
to speak out freely with no fear of unfair repercussion.
In the aftermath of the disaster, it became clear that workers on the
Deepwater Horizon rig harbored safety concerns prior to the explosion,
but chose not to vocalize them over fear of retribution. Take, for
example, Jason Anderson, who told both his wife and father that working
conditions were not safe on the Deepwater Horizon. According to his
wife Shelley's testimony before the Senate's Commerce, Science and
Transportation committee, Jason was reluctant to talk about these
concerns while on the rig and told her: ``I can't talk about it now.
The walls are too thin.'' Another worker, Dewey Revette, reportedly had
concerns with BPs plans to begin shutting down the well on the day it
exploded. He continued to work despite his reluctance and lost his life
hours later.
Workers on oil rigs, like the Deepwater Horizon, risk losing their
jobs if they report dangerous workplace conditions. The workers
performing clean-up activities on the Outer Continental Shelf similarly
have no protections against employer retaliation for raising health and
safety concerns. It is essential that workers be protected when they
raise concerns about unsafe working conditions, and they must have the
right to stop working if they fear they could be injured or killed. All
workers, especially those in dangerous jobs, are in the best position
to discover safety hazards. You can't have inspectors at all facilities
at all times--these workers are enforcement agencies' eyes and ears
when it comes to safety compliance.
Currently, there is no Federal law that protects offshore workers for
blowing the whistle on workplace health and safety problems. This bill
extends whistleblower protections to workers regarding Outer
Continental Shelf oil and gas exploration, drilling, production, or
cleanup, whose employers are engaged in those activities.
Federal whistleblowers have attempted to expose government actions
that violate the law or harm the environment for decades. Their
disclosures have helped the Federal Government improve environmental
protection, nuclear safety, and national security, and their claims
have helped safeguard the welfare of American citizens. Whistleblowers
have gained credibility in recent years thanks in great part to
organizations like the National Whistleblower Center (NWC), the Liberty
Coalition, and the Government Accountability Project. The NWC is a non-
profit, tax exempt educational and advocacy organization dedicated to
helping whistleblowers make their case to lawmakers and other
government leaders--a modern day safe haven for those who are willing
to put their careers on the line to improve their government.
The bill is modeled after other modern whistleblower statutes and
would prohibit an employer from discharging or otherwise discriminating
against an employee who reports to the employer, or a Federal or State
Government official that he or she reasonably believes the employer is
violating the Outer Continental Shelf Lands Act (OCSLA). The
legislation would also protect covered employees who prepare and/or
testify about the alleged violation, report injuries or unsafe
conditions related to the offshore work, refuse to work based on a good
faith belief that the offshore work could cause injury or impairment or
a spill, or refuse to perform in a manner that they believe violates
the OCSLA.
Mr. Speaker, it is essential to protect workers with the courage to
speak out when they see life-threatening safety-hazards or shortcuts.
If we do not, we risk dire consequences. Whistleblowers are often
forced to choose between remaining silent about a dangerous or illegal
situation and risking their careers by telling the truth. We must
reverse this unacceptable and unsustainable choice by passing this
legislation.
{time} 1300
Mr. KLINE of Minnesota. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, the best way to keep our workers and our workplaces safe
is through compliance. We write workplace safety laws for a reason, and
we
[[Page H6492]]
expect employers to follow those laws. This is true for factories and
family-run businesses, and it is true for offshore oil rigs.
We never want to see a workplace where laws are not followed and
worker safety and health is put at risk. But if that happens, workers
must be able to report those risks without fear of being discriminated
against or losing their job. This is where whistleblower protections
come.
The Occupational Safety and Health Administration enforces 18
separate Federal whistleblower statutes for workers who report
violations of worker safety, airline, commercial motor carrier,
consumer product, environmental, health care reform, nuclear energy,
pipeline, public transportation agency, railroad and securities laws.
Yet somehow, in this maze of whistleblower protections, it seems that
workers on offshore oil rigs may not be fully protected. When we asked
the agencies responsible for overseeing rigs on the Outer Continental
Shelf, they told us they did not know which statute might apply. This
is unacceptable.
I fully support the effort to ensure workers on offshore oil rigs
have access to whistleblower protections. But I have concerns and
questions about how H.R. 5851 approaches this goal, and I have serious
objections to the manner in which this legislation was brought floor.
There has been no hearing, no markup, no committee report. There has,
quite simply, been no legislative process, and it's no way to treat the
oil rig workers we are supposed to be protecting.
I yield back the balance of my time.
Mr. GEORGE MILLER of California. Mr. Speaker and Members of the
House, I hope that all of our colleagues on both sides of the aisle
will support this Whistleblower Protection Act.
I hope that they understand that many, many thousands, millions of
American workers work in work sites where every day they pose an
inherent danger to those workers. The question of whether or not those
workers will be safe or not very often is decided by the employer, who
decides how they will structure the work site, what the work rules will
be, and how the work and the process will proceed.
But very often those employers sometimes shortchange safety. They
choose to pick production over the safety of their workers. They choose
to pick cost cutting over safety of their workers.
They choose to pick hurrying up the job over the safety of their
workers. They choose to pick getting certain parts of the job done and
get them off-site over the safety of their workers.
In today's economy, and in every economy, for many of these workers,
it's a terrible choice to think about if I raise my hand on behalf of
safety, will I lose my job? If I raise a question about the process
that we are about to engage in here and how dangerous it is, will I
lose my job?
I represent a district where people work in these industries, in the
chemical industry and the refining industry. You know what? We lose
workers in those jobs all too often, and all too often we find out the
mistakes that were made and we wonder. And even those workers, who are
covered by whistleblower protection, know the trade-off.
Because, don't forget, all whistleblower protection does is give you
a right to try to proceed to get your job back. Many times that's
delayed and workers go months and months without pay because they had
the courage to invoke their rights.
This Whistleblower Protection Act is consistent with the other
Federal protections for workers throughout this country, but these
workers today on the Outer Continental Shelf have no protection at all
with respect to their personal safety, and we are simply filling that
gap and making sure that they will have that right.
Now, many companies--and I have talked to the CEOs of some of these
companies--say, you know, we give you the right at any time to pull the
switch, to shut down the job, to stop it, if you think it's unsafe. One
company gives out a card. You get a card and you put the card down.
It's sort of like in the World Cup--you get a time-out.
Do you know what the supervisors tell the employees that card is? A
get-fired card. Play that card, get fired. So the company says play
this card any time you want, but the supervisors make it clear what the
pressure is.
That's why we need this whistleblower protection for the workers on
the Outer Continental Shelf. I have to believe, given the concerns that
are documented in the hearings of this Congress, that had these workers
had that kind of protection, there would have been a far greater chance
that they would have said, wait a minute, because they had concerns
about the procedure as they started to withdraw from this drill site.
They had concerns about the condition of the rig. They had concerns
about the overriding of safety alarms. Yet we saw the explosion and the
tragedy and the loss of life of these workers.
Let's do something in their memory that will protect their colleagues
on the Outer Continental Shelf. Let's pass this bill with large
bipartisan support.
In the name of these workers, these workers who fell into a gap in
the protection laws of this Nation, let's fill that gap. Let's provide
them the protection, and let's make their death not be in vain with
respect to their coworkers.
I ask for support of this legislation.
I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Jackson of Illinois). All time for
debate has expired.
Pursuant to House Resolution 1574, the previous question is ordered
on the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. Pursuant to clause 1(c) of rule XIX, further
consideration of H.R. 5851 is postponed.
____________________