H. R. 503
To provide whistleblower protections to certain workers in the offshore
oil and gas industry.
IN THE HOUSE OF REPRESENTATIVES
January 26, 2011
Mr. GEORGE MILLER of California (for himself and Mr. MARKEY) introduced the
following bill; which was referred to the Committee on Education and the Workforce
To provide whistleblower protections to certain workers in the offshore
oil and gas industry.
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 2011'.
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
(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
(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 stop
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.
(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).
(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
(G) 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 (G) of such
subsection was a contributing factor in the adverse action alleged in
(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
(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
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.
(A) IN GENERAL- If the Secretary has not issued a final decision within
330 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
(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
(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 in 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
(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
(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
(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
(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.).