[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9403 Introduced in House (IH)]
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117th CONGRESS
2d Session
H. R. 9403
To provide whistleblower protections to certain workers in the offshore
oil and gas industry.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 2, 2022
Mr. DeSaulnier introduced the following bill; which was referred to the
Committee on Education and Labor
_______________________________________________________________________
A BILL
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''.
SEC. 2. WHISTLEBLOWER PROTECTIONS; EMPLOYEE PROTECTION FROM OTHER
RETALIATION.
(a) Prohibition Against Retaliation.--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--
(1) 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;
(2) testified or is about to testify in a proceeding
concerning such violation;
(3) assisted or participated or is about to assist or
participate in such a proceeding;
(4) testified or is about to testify before Congress on any
matter covered by such Act;
(5) 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;
(6) reported to the employer or a State or Federal
Government official an illness, injury, unsafe condition, or
information regarding the adequacy of any oil spill response
plan required by law related to the employer's activities
described in section 3(1); or
(7) 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 reasonable 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.
(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).
(C) Right of parties to appeal.--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, including the dismissal of the complaint, in
whole or in part, and request a hearing on the record
before an administrative law judge of the Department of
Labor. 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
filing of such objections shall not operate to stay any
reinstatement remedy contained in the preliminary order
issued under subparagraph (B). 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.
(D) 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 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 to--
(i) take affirmative action to abate the
violation;
(ii) reinstate the complainant to his or
her former position together with compensation
(including double back pay and prejudgment
interest) and restore the terms, conditions,
and privileges associated with his or her
employment;
(iii) expunge 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, transmit a copy of the decision on
the complaint to any person whom the
complainant reasonably believes may have
received such unfavorable information; and
(iv) 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) 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.
(4) Action in court.--
(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 (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 double back pay
sufficient to make the covered employee whole,
with prejudgment interest;
(iii) 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;
(iv) exemplary damages, as appropriate; and
(v) 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 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 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 (including an
arbitration 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.).
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