[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 10118 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 10118
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 13, 2024
Ms. Schakowsky (for herself and Mrs. Trahan) introduced the following
bill; which was referred to the Committee on Education and the
Workforce, 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 2024''.
SEC. 2. PROTECTION OF WHISTLEBLOWERS.
(a) Protection From Retaliation.--A covered entity may not,
directly or indirectly, discharge, demote, suspend, threaten, harass,
or in any other manner discriminate or take an adverse personnel action
against an individual (or a group of individuals) because the
individual (or group of individuals) does any of the following:
(1) Makes (or the covered entity suspects the individual or
group of individuals has made or will make) a covered
disclosure to--
(A) a qualified entity;
(B) a person with supervisory authority over the
individual (or group of individuals); or
(C) another individual working for the covered
entity who the individual (or group of individuals)
reasonably believes has the authority to investigate,
discover, or terminate the alleged violation in the
covered disclosure or to take any other action to
address such violation.
(2) Initiates, testifies, assists, or participates (or the
covered entity expects will initiate, testify, assist, or
participate) in an investigation conducted by a qualified
entity or a judicial or administrative proceeding brought by a
qualified entity relating to a covered violation.
(3) Objects to, or refuses to participate in, any activity,
policy, practice, or assigned task that the individual (or
group of individuals) reasonably believes is an alleged covered
violation.
(b) Enforcement.--
(1) Cause of action.--A whistleblower who alleges discharge
or other discrimination by a covered entity in violation of
subsection (a)--
(A) may bring an action governed by the procedures
and burdens of proof in section 4712 of title 41,
United States Code; or
(B) may bring an action in the appropriate district
court of the United States--
(i) for the relief described in subsection
(c);
(ii) governed by the burdens of proof in
section 1221(e) of title 5, United States Code;
and
(iii) in which the whistleblower shall be
entitled to a trial by jury.
(2) Statute of limitations.--
(A) In general.--An action under paragraph (1) 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
paragraph (1) may not be brought more than 10 years
after the date on which the violation of subsection (a)
occurred.
(3) Waiver of rights and remedies.--The rights and remedies
provided in this section may not be waived by any policy,
written document, or other condition relating to employment,
including by a predispute arbitration agreement.
(4) Predispute arbitration agreements.--Notwithstanding any
other provision of law, a predispute arbitration agreement may
not be enforced with respect to an action under paragraph (1).
(5) Restrictive covenant agreements.--Notwithstanding any
other provision of law, 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 may not be enforced.
(c) Relief.--Relief for any whistleblower who prevails in an action
brought under subsection (b)(1) shall include--
(1) reinstatement with the same seniority status that the
whistleblower would have had but for the discharge or
discrimination;
(2) 3 times the amount of back pay owed to the
whistleblower, with interest; and
(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 by commission.--
(A) Unfair or deceptive acts or practices.--A
violation of paragraph (1) or (2) shall be treated as a
violation of a regulation under section 18(a)(1)(B) of
the Federal Trade Commission Act (15 U.S.C.
57a(a)(1)(B)) regarding unfair or deceptive acts or
practices.
(B) Powers of commission.--The Commission shall
enforce paragraphs (1) and (2) 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, and 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.--
(1) Requirement.--The Commission, any employee of the
Commission, and any other entity to which the Commission
communicates may not disclose any information provided to the
Commission, including information provided by a whistleblower,
that could reasonably be expected to reveal the identity of a
whistleblower.
(2) Exception.--Notwithstanding paragraph (1), if release
of the information described in paragraph (1) is required by
law, the whistleblower shall receive timely advance notice
before such release.
(3) Rules of construction.--This paragraph may not be
construed to prohibit--
(A) any disclosure described in section 21(d) of
the Federal Trade Commission Act (15 U.S.C. 57b-2(d));
(B) a disclosure to any officer or employee of a
Federal or State law enforcement agency or a foreign
law enforcement agency under section 6(f) or 21(b)(6)
of the Federal Trade Commission Act (15 U.S.C. 46(f),
57b-2(b)(6)); or
(C) a disclosure to which the whistleblower
consents.
(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 relating to
collective bargaining or under any collective bargaining
agreement.
(2) Other whistleblower protections.--
(A) Nothing in this section may be construed to
preempt or supersede any other Federal or State law
relating to whistleblower protections.
(B) Notwithstanding any other provision of law, a
whistleblower shall be immune from civil and criminal
liability for making a covered disclosure if the
whistleblower would be protected from reprisal under
section (a). The whistleblower shall bear the burden
required under subsection (b) of proving that the
whistleblower would be protected from reprisal under
subsection (a) for making the disclosure. This section
does not provide a defense against activities unrelated
to conduct protected under subsection (a).
(3) Authority of commission.--Nothing in this section may
be construed to limit the authority of the Commission under any
other provision of law.
SEC. 3. INCENTIVES FOR WHISTLEBLOWERS.
(a) Awards.--
(1) In general.--If a whistleblower (or group of
whistleblowers) voluntarily provides to the Commission original
information regarding an alleged covered violation and such
original information leads to the successful resolution of a
covered action, the Commission, subject to subsection (b),
shall pay an award to the whistleblower (or group of
whistleblowers) in an aggregate amount of--
(A) not less than 10 percent, in total, of
collected monetary sanctions imposed as a result of the
relevant covered action; and
(B) not more than 30 percent, in total, of
collected monetary sanctions imposed as a result of the
relevant covered action.
(2) Payment of awards.--Any amount paid under paragraph (1)
shall be paid from the Fund.
(b) Determination and Denial of Awards.--
(1) Determination of awards.--
(A) Discretion.--The determination of the amount of
an award to be made pursuant to subsection (a) shall be
within the discretion of the Commission (subject to the
requirements described in subsection (a)).
(B) Criteria.--In determining an award to be made
pursuant to subsection (a), the Commission--
(i) 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 may establish; and
(ii) shall not take into consideration the
balance of the Fund.
(2) Denial of awards.--Notwithstanding subsection (a), the
Commission shall deny an award to any whistleblower to whom an
award otherwise would be made pursuant to subsection (a) if the
whistleblower--
(A) is convicted of a criminal violation related to
the relevant covered action;
(B) acts without direction from a covered entity
(or an agent of a covered entity) to deliberately cause
or substantially contribute to the alleged covered
violation underlying the relevant covered action;
(C) fails to provide the relevant original
information to the Commission in the form the
Commission requires; and
(D) was, at the time the whistleblower acquired the
relevant original information, a member, officer, or
employee of the Commission or a law enforcement agency
and acquired the information while acting in the normal
course of the employment duties of the whistleblower.
(c) Representation.--
(1) Permitted representation.--A whistleblower may be
represented by counsel.
(2) Required representation.--
(A) Anonymous claims.--Any whistleblower who
anonymously makes a claim for an award under subsection
(a) shall be represented by counsel if the
whistleblower anonymously submits the original
information upon which the claim is based.
(B) Disclosure of identity.--Before the payment of
an award described in subparagraph (A), the
whistleblower shall disclose the identity of the
whistleblower and provide such other information as the
Commission may require, directly or through counsel for
the whistleblower.
(d) No Contract Necessary.--A contract with the Commission is not
necessary for a whistleblower to receive an award pursuant to
subsection (a).
(e) Provision of False Information.--A whistleblower who knowingly
and intentionally makes any false, fictitious, or fraudulent statement
or representation, or who knowingly and intentionally makes or uses any
false writing or document containing any false, fictitious, or
fraudulent statement or entry, may not receive an award pursuant to
subsection (a).
(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 the 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) Federal Trade Commission Consumer Protection Fund.--
(1) Establishment.--There is established in the Treasury of
the United States a Fund to be known as the ``Federal Trade
Commission Consumer Protection Fund''.
(2) Use of fund.--The Fund shall be available to the
Commission, without further appropriation or fiscal year
limitation, in order to pay for awards made to whistleblowers
pursuant to subsection (a).
(3) Deposits and credits.--
(A) In general.--There shall be deposited into or
credited to the Fund an amount equal to any monetary
sanctions collected by the Commission in any covered
action, unless the balance of the Fund at the time the
monetary sanction is collected exceeds $500,000,000.
(B) Additional amounts.--If the amounts deposited
into or credited to the Fund under subparagraph (A) are
not sufficient to pay an award made pursuant to
subsection (a), there shall be deposited into or
credited to the Fund an amount equal to the unsatisfied
portion of the award from any monetary sanctions
collected by the Commission in the covered action on
which the award is based.
(4) Investments.--
(A) Amounts in fund.--The Commission may request
the Secretary of the Treasury to invest the portion of
the Fund that is not required to meet the current needs
of the Fund (as determined by the Commission).
(B) Eligible investments.--Investments shall be
made by the Secretary of the Treasury in obligations of
the United States or obligations that are guaranteed as
to principal and interest by the United States, with
maturities suitable to the needs of the Fund (as
determined by the Commission).
(C) Interest and proceeds credited.--The interest
on, and the proceeds from, the sale or redemption of
any obligations held in the Fund shall be credited to,
and form a part of, the Fund.
(5) Reports to congress.--Not later than October 30 of each
year, the Commission shall submit to the Committee on Energy
and Commerce of the House of Representatives and the Committee
on Commerce, Science, and Transportation of the Senate a report
on--
(A) the whistleblower award program established
under this section, including a description of the
number of awards made pursuant to subsection (a) and
the types of cases in which such awards were made
during the preceding fiscal year;
(B) the balance of the Fund at the beginning of the
preceding fiscal year;
(C) the amounts deposited into or credited to the
Fund during the preceding fiscal year;
(D) the amount of earnings on investments of
amounts in the Fund during the preceding fiscal year;
(E) the amount paid from the Fund to pay for awards
made to whistleblowers pursuant to subsection (a)
during the preceding fiscal year;
(F) the balance of the Fund at the end of the
preceding fiscal year; and
(G) a complete set of audited financial statements,
including a balance sheet, income statement, and cash
flow analysis.
(h) 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--
(A) may receive an award pursuant to subsection (a)
regardless of whether the alleged covered violation
underlying the covered action occurred before the date
of the enactment of this Act; and
(B) may receive an award pursuant to subsection (a)
before the Commission promulgates any regulation
pursuant to this Act.
SEC. 4. RULEMAKING.
The Commission may promulgate, under section 553 of title 5, United
States Code, any regulations the Commission determines necessary to
carry out 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 or proceeding, including any
related administrative or judicial action, brought by the
Commission, or by the Attorney General on behalf of the
Commission, in relation to a covered violation and that 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 an alleged covered
violation, including such a communication or transmission of
such a violation that is part of the normal employment duties
of the individual.
(4) Covered entity.--The term ``covered entity'' means an
entity or individual that is subject to the jurisdiction of the
Commission.
(5) Covered violation.--The term ``covered violation''
means--
(A) a violation of any law, rule, or regulation
enforced by the Commission; or
(B) a violation of any order of the Commission
after such order has become final and while such order
is in effect.
(6) Fund.--The term ``Fund'' means the Federal Trade
Commission Consumer Protection Fund established pursuant to
section 3(g).
(7) Monetary sanctions.--The term ``monetary sanctions'',
with respect to a covered action--
(A) means monies, including penalties,
disgorgement, or interest, ordered or agreed to be paid
as a result of such action; and
(B) does not include restitution (as determined by
the Commission) for losses of, or relief necessary to
redress injury to, consumers, other persons,
partnerships, and corporations.
(8) Original information.--The term ``original
information'' means information that--
(A) is derived from the independent knowledge or
analysis of a whistleblower;
(B) is not known to the Commission from any other
source, unless the whistleblower 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 whistleblower is a
source of the information.
(9) Qualified entity.--The term ``qualified entity''
means--
(A) the Commission;
(B) an agency (as defined in section 551 of title
5, United States Code) or a law enforcement agency; or
(C) any Member of Congress or committee of
Congress.
(10) Related administrative or judicial action.--The terms
``related administrative action'' and ``related judicial
action'' include any action brought by any appropriate Federal
authority, a State Attorney General in connection with any
criminal investigation, or any appropriate State regulatory
authority that is based upon the original information provided
by a whistleblower that leads to the successful enforcement of
the action by the Commission or the Attorney General on behalf
of the Commission.
(11) 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 the covered entity and who engages in any of the
conduct described in paragraph (1), (2), or (3) of
section 2(a), including as part of the employment
duties of such individual or group; or
(B) any person that assists any such individual or
group with such conduct.
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