Offshore Oil and Gas Worker Whistleblower Protection Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 2984 To provide whistleblower protections to certain workers in the offshore oil and gas industry. IN THE HOUSE OF REPRESENTATIVES MAY 23, 2019 Mr. DESAULNIER (for himself, Mr. CARBAJAL, Mr. HUFFMAN, and Mr. SCOTT of Virginia) 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Offshore Oil and Gas 4 Worker Whistleblower Protection Act of 2019’’. 5 SEC. 2. WHISTLEBLOWER PROTECTIONS; EMPLOYEE PRO- 6 TECTION FROM OTHER RETALIATION. 7 (a) PROHIBITION AGAINST RETALIATION.— 8 (1) IN GENERAL.—No employer may discharge 9 or otherwise discriminate against a covered employee 10 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2984 IH because the covered employee, whether at the cov- 1 ered employee’s initiative or in the ordinary course 2 of the covered employee’s duties— 3 (A) provided, caused to be provided, or is 4 about to provide or cause to be provided to the 5 employer or to a Federal or State Government 6 official, information relating to any violation of, 7 or any act or omission the covered employee 8 reasonably believes to be a violation of, any pro- 9 vision of the Outer Continental Shelf Lands Act 10 (43 U.S.C. 1301 et seq.), or any order, rule, 11 regulation, standard, or prohibition under that 12 Act, or exercised any rights provided to employ- 13 ees under that Act; 14 (B) testified or is about to testify in a pro- 15 ceeding concerning such violation; 16 (C) assisted or participated or is about to 17 assist or participate in such a proceeding; 18 (D) testified or is about to testify before 19 Congress on any matter covered by such Act; 20 (E) objected to, or refused to participate in 21 any activity, policy, practice, or assigned task 22 that the covered employee reasonably believed 23 to be in violation of any provision of such Act, 24 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2984 IH or any order, rule, regulation, standard, or ban 1 under such Act; 2 (F) reported to the employer or a State or 3 Federal Government official any of the fol- 4 lowing related to the employer’s activities de- 5 scribed in section 3(1): an illness, injury, unsafe 6 condition, or information regarding the ade- 7 quacy of any oil spill response plan required by 8 law; or 9 (G) refused to perform the covered employ- 10 ee’s duties, or exercised stop work authority, re- 11 lated to the employer’s activities described in 12 section 3(1) if the covered employee had a good 13 faith belief that performing such duties could 14 result in injury to or impairment of the health 15 of the covered employee or other employees, or 16 cause an oil spill to the environment. 17 (2) GOOD FAITH BELIEF.—For purposes of 18 paragraph (1)(E), the circumstances causing the 19 covered employee’s good faith belief that performing 20 such duties would pose a health and safety hazard 21 shall be of such a nature that a reasonable person 22 under circumstances confronting the covered em- 23 ployee would conclude there is such a hazard. 24 (b) PROCESS.— 25 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2984 IH (1) IN GENERAL.—A covered employee who be- 1 lieves that he or she has been discharged or other- 2 wise discriminated against (hereafter referred to as 3 the ‘‘complainant’’) by any employer in violation of 4 subsection (a)(1) may, not later than 180 days after 5 the date on which such alleged violation occurs or 6 the date on which the covered employee knows or 7 should reasonably have known that such alleged vio- 8 lation occurred, file (or have any person file on his 9 or her behalf) a complaint with the Secretary of 10 Labor (referred to in this section as the ‘‘Sec- 11 retary’’) alleging such discharge or discrimination 12 and identifying employer or employers responsible 13 for such act. Upon receipt of such a complaint, the 14 Secretary shall notify, in writing, the employer or 15 employers named in the complaint of the filing of 16 the complaint, of the allegations contained in the 17 complaint, of the substance of evidence supporting 18 the complaint, and of the opportunities that will be 19 afforded to such person under paragraph (2). 20 (2) INVESTIGATION.— 21 (A) IN GENERAL.—Not later than 90 days 22 after the date of receipt of a complaint filed 23 under paragraph (1) the Secretary shall initiate 24 an investigation and determine whether there is 25 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2984 IH reasonable cause to believe that the complaint 1 has merit and notify, in writing, the complain- 2 ant and the employer or employers alleged to 3 have committed a violation of subsection (a)(1) 4 of the Secretary’s findings. The Secretary shall, 5 during such investigation afford the complain- 6 ant and the employer or employers named in 7 the complaint an opportunity to submit to the 8 Secretary a written response to the complaint 9 and an opportunity to meet with a representa- 10 tive of the Secretary to present statements from 11 witnesses. The complainant shall be provided 12 with an opportunity to review the information 13 and evidence provided by employer or employers 14 to the Secretary, and to review any response or 15 rebuttal by such the complaint, as part of such 16 investigation. 17 (B) REASONABLE CAUSE FOUND; PRELIMI- 18 NARY ORDER.—If the Secretary concludes that 19 there is reasonable cause to believe that a viola- 20 tion of subsection (a)(1) has occurred, the Sec- 21 retary shall accompany the Secretary’s findings 22 with a preliminary order providing the relief 23 prescribed by paragraph (3)(B). 24 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2984 IH (C) RIGHT OF PARTIES TO APPEAL.—Not 1 later than 30 days after the date of notification 2 of findings under this paragraph, the employer 3 or employers alleged to have committed the vio- 4 lation or the complainant may file objections to 5 the findings or preliminary order, or both, in- 6 cluding the dismissal of the complaint, in whole 7 or in part, and request a hearing on the record 8 before an administrative law judge of the De- 9 partment of Labor. Any such hearing shall be 10 conducted expeditiously. If a hearing is not re- 11 quested in such 30-day period, the preliminary 12 order shall be deemed a final order that is not 13 subject to judicial review. The filing of such ob- 14 jections shall not operate to stay any reinstate- 15 ment remedy contained in the preliminary order 16 issued under subparagraph (B). The Secretary 17 of Labor is authorized to enforce preliminary 18 reinstatement orders in the United States dis- 19 trict court for the district in which the violation 20 was found to occur, or in the United States dis- 21 trict court for the District of Columbia. 22 (D) DISMISSAL OF COMPLAINT.— 23 (i) STANDARD FOR COMPLAINANT.— 24 The Secretary shall dismiss a complaint 25 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2984 IH filed under this subsection and shall not 1 conduct an investigation otherwise required 2 under subparagraph (A) unless the com- 3 plainant makes a prima facie showing that 4 any behavior described in subparagraphs 5 (A) through (G) of subsection (a)(1) was a 6 contributing factor in the adverse action 7 alleged in the complaint. 8 (ii) STANDARD FOR EMPLOYER.—Not- 9 withstanding a finding by the Secretary 10 that the complainant has made the show- 11 ing required under clause (i), no investiga- 12 tion otherwise required under subpara- 13 graph (A) shall be conducted if the em- 14 ployer demonstrates, by clear and con- 15 vincing evidence, that the employer would 16 have taken the same adverse action in the 17 absence of that behavior. 18 (iii) VIOLATION STANDARD.—The 19 Secretary may determine that a violation 20 of subsection (a)(1) has occurred only if 21 the complainant demonstrates that any be- 22 havior described in subparagraphs (A) 23 through (G) of such subsection was a con- 24 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2984 IH tributing factor in the adverse action al- 1 leged in the complaint. 2 (iv) RELIEF STANDARD.—Relief may 3 not be ordered under subparagraph (A) if 4 the employer demonstrates by clear and 5 convincing evidence that the employer 6 would have taken the same adverse action 7 in the absence of that behavior. 8 (3) ORDERS.— 9 (A) IN GENERAL.—Not later than 90 days 10 after the receipt of a request for a hearing 11 under subsection (b)(2)(B), the administrative 12 law judge shall issue findings of fact and order 13 the relief provided under this paragraph or 14 deny the complaint. At any time before issuance 15 of an order, a proceeding under this subsection 16 may be terminated on the basis of a settlement 17 agreement entered into by the Secretary, the 18 complainant, and the person alleged to have 19 committed the violation. Such a settlement may 20 not be agreed by such parties if it contains con- 21 ditions which conflict with rights protected 22 under this Act, are contrary to public policy, or 23 include a restriction on a complainant’s right to 24 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2984 IH future employment with employers other than 1 the specific employers named in the complaint. 2 (B) CONTENT OF ORDER.—If, in response 3 to a complaint filed under paragraph (1), the 4 administrative law judge determines that a vio- 5 lation of subsection (a)(1) has occurred, the ad- 6 ministrative law judge shall order the employer 7 or employers who committed such violation to— 8 (i) take affirmative action to abate the 9 violation; 10 (ii) reinstate the complainant to his or 11 her former position together with com- 12 pensation (including back pay and prejudg- 13 ment interest) and restore the terms, con- 14 ditions, and privileges associated with his 15 or her employment; 16 (iii) expunge of all warnings, rep- 17 rimands, or derogatory references that 18 have been placed in paper or electronic 19 records or databases of any type relating 20 to the actions by the complainant that 21 gave rise to the unfavorable personnel ac- 22 tion, and, at the complainant’s direction, 23 transmit a copy of the decision on the com- 24 plaint to any person whom the complainant 25 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2984 IH reasonably believes may have received such 1 unfavorable information; and 2 (iv) provide compensatory and con- 3 sequential damages, and, as appropriate, 4 exemplary damages to the complainant. 5 (C) ATTORNEY FEES.—If such an order is 6 issued under this paragraph, the Secretary, at 7 the request of the complainant, shall assess 8 against the employer or employers a sum equal 9 to the aggregate amount of all costs and ex- 10 penses (including attorneys’ and expert witness 11 fees) reasonably incurred by the complainant 12 for, or in connection with, the bringing of the 13 complaint upon which the order was issued at 14 the conclusion of any stage of the proceeding. 15 (D) BAD FAITH CLAIM.—If the Secretary 16 finds that a complaint under paragraph (1) is 17 frivolous or has been brought in bad faith, the 18 Secretary may award to the prevailing employer 19 reasonable attorneys’ fees, not exceeding 20 $1,000, to be paid by the complainant. 21 (E) ADMINISTRATIVE APPEAL.—Not later 22 than 30 days after the receipt of findings of 23 fact or an order under subparagraph (B), the 24 employer or employers alleged to have com- 25 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 2984 IH mitted the violation or the complainant may 1 file, with objections, an administrative appeal 2 with the Secretary, who may designate such ap- 3 peal to a review board. In reviewing a decision 4 and order of the administrative law judge, the 5 Secretary shall affirm the decision and order if 6 it is determined that the factual findings set 7 forth therein are supported by substantial evi- 8 dence and the decision and order are made in 9 accordance with applicable law. The Secretary 10 shall issue a final decision and order affirming, 11 or reversing, in whole or in part, the decision 12 under review within 90 days after receipt of the 13 administrative appeal under this subparagraph. 14 If it is determined that a violation of subsection 15 (a)(1) has occurred, the Secretary shall order 16 relief provided under subparagraphs (B) and 17 (C). Such decision shall constitute a final agen- 18 cy action with respect to the matter appealed. 19 (4) ACTION IN COURT.— 20 (A) IN GENERAL.—If the Secretary has 21 not issued a final decision within 330 days after 22 the filing of the complaint, the complainant 23 may bring an action at law or equity for de 24 novo review in the appropriate district court of 25 VerDate Sep 11 2014 03:58 Jun 07, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2984.IH H2984 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 2984 IH the United States, which action shall, at the re- 1 quest of either party to such action, be tried by 2 the court with a jury. The proceedings shall be 3 governed by the same legal burdens of proof 4 specified in paragraph (2)(C). 5 (B) RELIEF.—The court may award all 6 appropriate relief including injunctive relief, 7 compensatory and consequential damages, in- 8 cluding— 9 (i) reinstatement with the same se- 10 niority status that the covered employee 11 would have had, but for the discharge or 12 discrimination; 13 (ii) the amount of back pay sufficient 14 to make the covered employee whole, with 15 [Text truncated for display. Full text available on Congress.gov.]