[Congressional Record Volume 161, Number 10 (Wednesday, January 21, 2015)]
[Senate]
[Pages S356-S357]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 83. Mrs. MURRAY submitted an amendment intended to be proposed to
amendment SA 2 proposed by Ms. Murkowski (for herself, Mr. Hoeven, Mr.
Barrasso, Mr. Risch, Mr. Lee, Mr. Flake, Mr. Daines, Mr. Manchin, Mr.
Cassidy, Mr. Gardner, Mr. Portman, Mr. Alexander, and Mrs. Capito) to
the bill S. 1, to approve the Keystone XL Pipeline; which was ordered
to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. __. ENHANCED PROTECTIONS FROM RETALIATION.
(a) Applicability to Workers in the Oil and Gas Industry.--
Section 11 of the Occupational Safety and Health Act of 1970
(29 U.S.C. 660) is amended by adding at the end the
following:
``(d) Provisions Applicable to Workers in the Oil and Gas
Industry.--
``(1) In general.--No person shall discharge or cause to be
discharged, or in any manner discriminate against or cause to
be discriminated against, any employee because--
``(A) such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to
this Act;
``(B) such employee has testified or is about to testify
before Congress or in any Federal or State proceeding related
to safety or health;
``(C) such employee has refused to violate any provision of
this Act; or
``(D) of the exercise by such employee on behalf of himself
or others of any right afforded by this Act, including the
reporting of any injury, illness, or unsafe condition to the
employer, agent of the employer, safety and health committee
involved, or employee safety and health representative
involved.
``(2) Prohibition of retaliation.--
``(A) In general.--No person shall discharge, or cause to
be discharged, or in any manner discriminate against, or
cause to be discriminated against, an employee for refusing
to perform the employee's duties if the employee has a
reasonable apprehension that performing such duties would
result in serious injury to, or serious impairment of the
health of, the employee or other employees.
``(B) Good-faith belief.--For purposes of subparagraph (A),
the circumstances causing the employee's good-faith belief
that performing such duties would pose a safety or health
hazard shall be of such a nature that a reasonable person,
under the circumstances confronting the employee, would
conclude that there is such a hazard. In order to qualify for
protection under this paragraph, the employee, when
practicable, shall have communicated or attempted to
communicate the safety or health concern to the employer and
have not received from the employer a response reasonably
calculated to allay such concern.
``(3) Complaint.--Any employee who believes that the
employee has been discharged, disciplined, or otherwise
discriminated against by any person in violation of paragraph
(1) or (2) may seek relief for such violation by filing a
complaint with the Secretary under paragraph (5).
``(4) Statute of limitations.--
``(A) In general.--An employee may take the action
permitted by paragraph (3) not later than 180 days after the
later of--
``(i) the date on which an alleged violation of paragraph
(1) or (2) occurs; or
``(ii) the date on which the employee knows or should
reasonably have known that such alleged violation occurred.
``(B) Repeat violation.--Except in cases when the employee
has been discharged, a violation of paragraph (1) or (2)
shall be considered to have occurred on the last date an
alleged repeat violation occurred.
``(5) Investigation.--
``(A) In general.--An employee may, within the time period
required under paragraph (4), file a complaint with the
Secretary alleging a violation of paragraph (1) or (2). If
the complaint alleges a prima facie case, the Secretary shall
conduct an investigation of the allegations in the complaint,
which--
``(i) shall include--
``(I) interviewing the complainant;
``(II) providing the respondent an opportunity to--
``(aa) submit to the Secretary a written response to the
complaint; and
``(bb) meet with the Secretary to present statements from
witnesses or provide evidence; and
``(III) providing the complainant an opportunity to--
``(aa) receive any statements or evidence provided to the
Secretary;
``(bb) meet with the Secretary; and
``(cc) rebut any statements or evidence; and
``(ii) may include issuing subpoenas for the purposes of
such investigation.
``(B) Decision.--Not later than 90 days after the filing of
the complaint, the Secretary shall--
``(i) determine whether reasonable cause exists to believe
that a violation of paragraph (1) or (2) has occurred; and
``(ii) issue a decision granting or denying relief.
``(6) Preliminary order following investigation.--If, after
completion of an investigation under paragraph (5)(A), the
Secretary finds reasonable cause to believe that a violation
of paragraph (1) or (2) has occurred, the Secretary shall
issue a preliminary order providing relief authorized under
paragraph (14) at the same time the Secretary issues a
decision under paragraph (5)(B). If a de novo hearing is not
requested within the time period required under paragraph
(7)(A)(i), such preliminary order shall be deemed a final
order of the Secretary and is not subject to judicial review.
``(7) Hearing.--
``(A) Request for hearing.--
``(i) In general.--A de novo hearing on the record before
an administrative law judge may be requested--
``(I) by the complainant or respondent within 30 days after
receiving notification of a decision granting or denying
relief issued under paragraph (5)(B) or paragraph (6),
respectively;
``(II) by the complainant within 30 days after the date the
complaint is dismissed without investigation by the Secretary
under paragraph (5)(A); or
``(III) by the complainant within 120 days after the date
of filing the complaint, if the Secretary has not issued a
decision under paragraph (5)(B).
``(ii) Reinstatement order.--The request for a hearing
shall not operate to stay any preliminary reinstatement order
issued under paragraph (6).
``(B) Procedures.--
``(i) In general.--A hearing requested under this paragraph
shall be conducted expeditiously and in accordance with rules
established by the Secretary for hearings conducted by
administrative law judges.
``(ii) Subpoenas; production of evidence.--In conducting
any such hearing, the administrative law judge may issue
subpoenas. The respondent or complainant may request the
issuance of subpoenas that require the deposition of, or the
attendance and testimony of, witnesses and the production of
any evidence (including any books, papers, documents, or
recordings) relating to the matter under consideration.
``(iii) Decision.--The administrative law judge shall issue
a decision not later than 90 days after the date on which a
hearing was requested under this paragraph and promptly
notify, in writing, the parties and the Secretary of such
decision, including the findings of fact and conclusions of
law. If the administrative law judge finds that a violation
of paragraph (1) or (2) has occurred, the judge shall issue
an order for relief under paragraph (14). If review under
paragraph (8) is not timely requested, such order shall be
deemed a final order of the Secretary that is not subject to
judicial review.
``(8) Administrative appeal.--
``(A) In general.--Not later than 30 days after the date of
notification of a decision and order issued by an
administrative law judge under paragraph (7), the complainant
or respondent may file, with objections, an administrative
appeal with an administrative review body designated by the
Secretary (referred to in this paragraph as the `review
board').
``(B) Standard of review.--In reviewing the decision and
order of the administrative law judge, the review board 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.
``(C) Decisions.--If the review board grants an
administrative appeal, the review board shall issue a final
decision and order affirming or reversing, in whole or in
part, the decision under review by not later than 90 days
after receipt of the administrative appeal. If it is
determined that a violation of paragraph (1) or (2) has
occurred, the review board shall issue a final decision and
order providing relief authorized under paragraph (14). Such
decision and order shall constitute final agency action with
respect to the matter appealed.
``(9) Settlement in the administrative process.--
``(A) In general.--At any time before issuance of a final
order, an investigation or proceeding under this subsection
may be terminated on the basis of a settlement agreement
entered into by the parties.
``(B) Public policy considerations.--Neither the Secretary,
an administrative law judge, nor the review board conducting
a hearing under this subsection shall accept a settlement
that contains conditions conflicting with the rights
protected under this
[[Page S357]]
Act or that are contrary to public policy, including a
restriction on a complainant's right to future employment
with employers other than the specific employers named in a
complaint.
``(10) Inaction by the review board or administrative law
judge.--
``(A) In general.--The complainant may bring a de novo
action described in subparagraph (B) if--
``(i) an administrative law judge has not issued a decision
and order within the 90-day time period required under
paragraph (7)(B)(iii); or
``(ii) the review board has not issued a decision and order
within the 90-day time period required under paragraph
(8)(C).
``(B) De novo action.--Such de novo action may be brought
at law or equity in the United States district court for the
district where a violation of paragraph (1) or (2) allegedly
occurred or where the complainant resided on the date of such
alleged violation. The court shall have jurisdiction over
such action without regard to the amount in controversy and
to order appropriate relief under paragraph (14). Such action
shall, at the request of either party to such action, be
tried by the court with a jury.
``(11) Judicial review.--
``(A) Timely appeal to the court of appeals.--Any party
adversely affected or aggrieved by a final decision and order
issued under this subsection may obtain review of such
decision and order in the United States Court of Appeals for
the circuit where the violation, with respect to which such
final decision and order was issued, allegedly occurred or
where the complainant resided on the date of such alleged
violation. To obtain such review, a party shall file a
petition for review not later than 60 days after the final
decision and order was issued. Such review shall conform to
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 final decision and
order.
``(B) Limitation on collateral attack.--An order and
decision with respect to which review may be obtained under
subparagraph (A) shall not be subject to judicial review in
any criminal or other civil proceeding.
``(12) Enforcement of order.--If a respondent fails to
comply with an order issued under this subsection, the
Secretary or the complainant on whose behalf the order was
issued may file a civil action for enforcement in the United
States district court for the district in which the violation
was found to occur to enforce such order. If both the
Secretary and the complainant file such action, the action of
the Secretary shall take precedence. The district court shall
have jurisdiction to grant all appropriate relief described
in paragraph (14).
``(13) Burdens of proof.--
``(A) Criteria for determination.--In making a
determination or adjudicating a complaint pursuant to this
subsection, the Secretary, administrative law judge, review
board, or court may determine that a violation of paragraph
(1) or (2) has occurred only if the complainant demonstrates
that any conduct described in paragraph (1) or (2) with
respect to the complainant was a contributing factor in the
adverse action alleged in the complaint.
``(B) Prohibition.--Notwithstanding subparagraph (A), a
decision or order that is favorable to the complainant shall
not be issued in any administrative or judicial action
pursuant to this subsection if the respondent demonstrates by
clear and convincing evidence that the respondent would have
taken the same adverse action in the absence of such conduct.
``(14) Relief.--
``(A) Order for relief.--If the Secretary, administrative
law judge, review board, or a court determines that a
violation of paragraph (1) or (2) has occurred, the Secretary
or court, respectively, shall have jurisdiction to order all
appropriate relief, including injunctive relief and
compensatory and exemplary damages, including--
``(i) affirmative action to abate the violation;
``(ii) reinstatement without loss of position or seniority,
and restoration of the terms, rights, conditions, and
privileges associated with the complainant's employment,
including opportunities for promotions to positions with
equivalent or better compensation for which the complainant
is qualified;
``(iii) compensatory and consequential damages sufficient
to make the complainant whole, (including back pay,
prejudgment interest, and other damages); and
``(iv) expungement of all warnings, reprimands, or
derogatory references that have been placed in paper or
electronic records or databases of any type relating to the
actions by the complainant that gave rise to the unfavorable
personnel action, and, at the complainant's direction,
transmission of a copy of the decision on the complaint to
any person whom the complainant reasonably believes may have
received such unfavorable information.
``(B) Attorneys' fees and costs.--If the Secretary or an
administrative law judge, review board, or court grants an
order for relief under subparagraph (A), the Secretary,
administrative law judge, review board, or court,
respectively, shall assess, at the request of the employee
against the employer--
``(i) reasonable attorneys' fees; and
``(ii) costs (including expert witness fees) reasonably
incurred, as determined by the Secretary, administrative law
judge, review board, or court, respectively, in connection
with bringing the complaint upon which the order was issued.
``(15) Procedural rights.--The rights and remedies
provided for in this subsection may not be waived by any
agreement, policy, form, or condition of employment,
including by any pre-dispute arbitration agreement or
collective bargaining agreement.
``(16) Savings.--Nothing in this subsection shall be
construed to diminish the rights, privileges, or remedies of
any employee who exercises rights under any Federal or State
law or common law, or under any collective bargaining
agreement.
``(17) Election of venue.--
``(A) In general.--An employee of an employer who is
located in a State that has a State plan approved under
section 18 may file a complaint alleging a violation of
paragraph (1) or (2) by such employer with--
``(i) the Secretary under paragraph (5); or
``(ii) a State plan administrator in such State.
``(B) Referrals.--If--
``(i) the Secretary receives a complaint pursuant to
subparagraph (A)(i), the Secretary shall not refer such
complaint to a State plan administrator for resolution; or
``(ii) a State plan administrator receives a complaint
pursuant to subparagraph (A)(ii), the State plan
administrator shall not refer such complaint to the Secretary
for resolution.
``(18) Definition.--For purposes of this subsection, the
term `employee' means an individual employed by--
``(A) an operator of an oil well, as described in the 2012
North American Industry Classification System code 213111;
``(B) a petrochemical manufacturing plant assigned the 2012
North American Industry Classification System code 213112,
324, or 32511; or
``(C) an entity assigned the 2012 North American Industry
Classification System code 23712 or 486.''.
(b) Relation to Enforcement.--Section 17(j) of such Act (29
U.S.C. 666(j)) is amended by inserting before the period the
following: ``, including the history of violations under
section 11(d)''.
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