[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6093 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 6093
To provide incentives for and protect whistleblowers under the
authority of the Federal Trade Commission, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 30, 2021
Ms. Schakowsky (for herself and Mrs. Trahan) introduced the following
bill; which was referred to the Committee on Education and Labor, and
in addition to the Committee on Energy and Commerce, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To provide incentives for and protect whistleblowers under the
authority of the Federal Trade Commission, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``FTC Whistleblower Act of 2021''.
SEC. 2. PROTECTION OF WHISTLEBLOWERS.
(a) Protection From Retaliation.--A covered entity may not,
directly or indirectly, discharge, demote, suspend, threaten, harass,
blacklist, or in any other manner discriminate or take an adverse
personnel action against an individual, or any person perceived as
assisting the individual, who does any of the following:
(1) Makes (or the covered entity suspects the individual
has made or will make) a covered disclosure to--
(A) a qualified entity;
(B) a person with supervisory authority over the
individual; or
(C) another individual who the individual
reasonably believes has the authority to investigate,
discover, or terminate the violation in the covered
disclosure or to take any other action to address the
violation in the covered disclosure.
(2) Initiates, testifies, assists, or participates (or the
covered entity expects will initiate, testify, assist, or
participate) in an investigation or judicial or administrative
proceeding by a qualified entity.
(3) Objects to, or refuses to participate in, any activity,
policy, practice, or assigned task that the individual (or
other such person) reasonably believes is a potential or
suspected violation of any law, rule, or regulation enforced by
the Commission.
(b) Enforcement.--
(1) Cause of action.--An individual who alleges a violation
of subsection (a) may bring an action under this subsection in
the appropriate district court of the United States for the
relief provided in subsection (c).
(2) Statute of limitations.--
(A) In general.--An action under this subsection
may not be brought--
(i) more than 6 years after the date on
which the violation of subsection (a) occurred;
or
(ii) more than 3 years after the date on
which facts material to the right of action are
known or reasonably should have been known by
the whistleblower alleging a violation of
subsection (a).
(B) Required action within 10 years.--
Notwithstanding subparagraph (A), an action under this
subsection may not in any circumstance be brought more
than 10 years after the date on which the violation
occurs.
(3) Waiver of rights and remedies.--The rights and remedies
provided for in this section may not be waived by any policy
form or condition of employment, including by a predispute
arbitration agreement.
(4) Predispute arbitration agreements.--A predispute
arbitration agreement is not valid or enforceable if the
agreement requires arbitration of a dispute arising under this
section.
(5) Restrictive covenant agreements.--An agreement in which
a whistleblower is restrained by the covered entity that was
the subject of a covered disclosure from exercising a lawful
profession, trade, or business of any kind is not valid and not
enforceable.
(c) Relief.--Relief for an individual prevailing in an action
brought under subsection (a) includes the following:
(1) Reinstatement with the same seniority status that the
individual would have had, but for the discharge or
discrimination.
(2) Three times the amount of back pay otherwise owed to
the individual, with interest.
(3) Consequential and compensatory damages, and
compensation for litigation costs, expert witness fees, and
reasonable attorneys' fees.
(d) Communications.--
(1) Prohibition on impeding covered disclosure.--A covered
entity may not take any action that impedes or prevents an
individual from communicating directly with a qualified entity
about a covered disclosure, including enforcing, or threatening
to enforce, a confidentiality or non-disparagement agreement.
(2) Communication with qualified entities.--A covered
entity may not require the consent of the counsel of the
covered entity for a qualified entity to communicate directly
with an individual or the attorney of an individual (if the
individual is represented by an attorney) regarding a possible
covered disclosure.
(3) Enforcement.--A violation of paragraph (1) or (2) shall
be treated as a violation of a rule defining an unfair or
deceptive act or practice prescribed under section 18(a)(1)(B)
of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
The Commission shall enforce this subsection in the same
manner, by the same means, and with the same jurisdiction,
powers, and duties as though all applicable terms and
provisions of the Federal Trade Commission Act (15 U.S.C. 41 et
seq.) were incorporated into and made a part of this
subsection. Any person who violates paragraph (1) or (2) shall
be subject to the penalties and entitled to the privileges and
immunities provided in the Federal Trade Commission Act.
(e) Confidentiality.--Information that could reasonably be expected
to reveal the identity of a whistleblower, except as provided in
section 21(d) of the Federal Trade Commission Act (15 U.S.C. 57b-
2(d))--
(1) shall be considered confidential;
(2) may not be disclosed; and
(3) is exempt from disclosure under section 552(b)(3) of
title 5, United States Code.
(f) Rules of Construction.--
(1) Collective bargaining.--Nothing in this section may be
construed to diminish the rights, privileges, or remedies of
any whistleblower under any Federal or State law, or under any
collective bargaining agreement.
(2) Other whistleblower protections.--Nothing in this
section may be construed to preempt or supersede any other
Federal or State law relating to whistleblower protections.
SEC. 3. INCENTIVES FOR WHISTLEBLOWERS.
(a) Awards.--If a whistleblower voluntarily provides to the
Commission original information that the whistleblower reasonably
believes relates to a potential or suspected violation of any law,
rule, or regulation enforced by the Commission and the original
information that the whistleblower provided to the Commission leads to
the successful resolution of a covered action, the Commission, subject
to subsection (b), may pay an award to a whistleblower in an aggregate
amount of--
(1) not less than 10 percent, in total, of collected
monetary sanctions; and
(2) not more than 30 percent, in total, of collected
monetary sanctions.
(b) Determination of Awards; Denial of Awards.--
(1) Determination of awards.--
(A) Discretion.--The determination of whether, to
whom, or in what amount to make an award shall be in
the discretion of the Commission subject to the
provisions in subsection (a).
(B) Criteria.--In determining an award made under
subsection (a), the Commission shall take into
consideration--
(i) the significance of the original
information provided by the whistleblower to
the successful resolution of the covered
action;
(ii) the degree of assistance provided by
the whistleblower and any legal representative
of the whistleblower in the covered action; and
(iii) such additional factors as the
Commission considers relevant.
(2) Denial of awards.--The Commission may deny an award
under subsection (a)--
(A) to any whistleblower who is convicted of a
criminal violation related to the covered action for
which the whistleblower otherwise could receive an
award under this section;
(B) to any whistleblower who, acting without
direction from a covered entity, or agent thereof,
deliberately causes or substantially contributes to the
alleged violation in the covered action; or
(C) to any whistleblower who fails to provide the
original information to the Commission in such form as
the Commission may require by regulation.
(c) Representation.--A whistleblower may be represented by counsel.
(d) No Contract Necessary.--A contract with the Commission is not
necessary for a whistleblower to receive an award under subsection (a).
(e) Provision of False Information.--A whistleblower who knowingly
and intentionally makes any false, fictitious, or fraudulent statement
or representation, or who makes or uses any false writing or document
knowing the same to contain any false, fictitious, or fraudulent
statement or entry, shall not be entitled to an award under this
section.
(f) Appeals.--
(1) In general.--Any determination made under this section,
including whether, to whom, or in what amount to make an award,
shall be in the discretion of the Commission.
(2) Appeals.--Any determination made by the Commission
under this section may be appealed by a whistleblower to the
appropriate court of appeals of the United States not later
than 30 days after the date on which a determination is issued
by the Commission.
(3) Review.--The court shall review the determination made
by the Commission in accordance with section 706 of title 5,
United States Code.
(g) Rules of Construction.--
(1) Original information.--Original information submitted
to the Commission by a whistleblower in accordance with the
requirements of this section shall not lose the status as
original information solely because the whistleblower submitted
the information before the effective date of any regulation
issued under this Act if the information was submitted after
the date of the enactment of this Act.
(2) Awards.--A whistleblower may receive an award under
this section regardless of whether the violation in the covered
action occurred before the date of the enactment of this Act,
and may receive an award before the Commission promulgates any
regulation under this Act.
SEC. 4. RULEMAKING.
The Commission may issue such rules and regulations, including
regulations under section 553 of title 5, United States Code, as may be
necessary or appropriate to implement the provisions of this Act.
SEC. 5. DEFINITIONS.
In this Act:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Covered action.--The term ``covered action'' means any
administrative or judicial action, including any related
administrative or judicial action, brought by the Commission or
the Attorney General under section 3 that in the aggregate
results in monetary sanctions exceeding $1,000,000.
(3) Covered disclosure.--The term ``covered disclosure''
means a formal or informal communication or transmission that
an individual reasonably believes relates to a potential or
suspected violation of any law, rule, or regulation enforced by
the Commission.
(4) Covered entity.--The term ``covered entity'' means an
entity or individual subject to the jurisdiction of the
Commission.
(5) Monetary sanctions.--The term ``monetary sanctions''--
(A) means monies, including penalties,
disgorgement, or interest, ordered or agreed to be
paid; and
(B) does not include any relief necessary to
redress injury to consumers, as determined by the
Commission.
(6) Original information.--The term ``original
information'' means information that--
(A) is derived from the independent knowledge or
analysis of an individual;
(B) is not known to the Commission from any other
source, unless the individual is the original source of
the information; and
(C) is not exclusively derived from an allegation
made in a judicial or an administrative action,
governmental report, hearing, audit, or investigation,
or from the news media, unless the individual is a
source of the information.
(7) Qualified entity.--The term ``qualified entity''
means--
(A) the Commission; or
(B) a Federal entity, including any Member or
committee of Congress.
(8) Successful resolution.--The term ``successful
resolution'', with respect to a covered action, includes any
settlement or adjudication of the covered action.
(9) Whistleblower.--The term ``whistleblower'' means--
(A) an individual (or group of individuals) who is
a current or former full-time, part-time, or temporary
employee, contractor, subcontractor (at any tier),
grantee, subgrantee, or agent of a covered entity or
employee of a contractor or subcontractor (at any tier)
of that covered entity that engages in any of the
conduct described under paragraph (1), (2), or (3) of
section 2(a); or
(B) any person that assists or is perceived as
assisting any such individual (or group of
individuals).
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