COVID–19 Whistleblower Protection Act

I 116TH CONGRESS 2D SESSION H. R. 7227 To protect certain whistleblowers seeking to ensure accountability and over- sight of the Nation’s COVID–19 pandemic response, and for other pur- poses. IN THE HOUSE OF REPRESENTATIVES JUNE 15, 2020 Ms. SPEIER (for herself, Mr. RASKIN, Mr. COHEN, Mrs. HAYES, Ms. NORTON, Ms. TLAIB, and Miss RICE of New York) introduced the following bill; which was referred to the Committee on Education and Labor A BILL To protect certain whistleblowers seeking to ensure account- ability and oversight of the Nation’s COVID–19 pan- demic response, and for other purposes. 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 ‘‘COVID–19 Whistle- 4 blower Protection Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 (1) the term ‘‘abuse of authority’’ means an ar- 8 bitrary and capricious exercise of authority by a con- 9 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 7227 IH tracting officer or employee that adversely affects 1 the rights of any individual, or that results in per- 2 sonal gain or advantage to the officer or employee 3 or to preferred other individuals; 4 (2) the term ‘‘CARES Act’’ means the CARES 5 Act (Public Law 116–136); 6 (3) the term ‘‘Coronavirus pandemic-related 7 program, project, or activity’’— 8 (A) means a program, project, or activity 9 of the executive branch of the Federal Govern- 10 ment authorized under or carried out using 11 amounts made available under an Act to re- 12 spond to or to provide aid or assistance to ad- 13 dress, relief from, or funding to address the 14 outbreak of COVID–19 that is enacted before, 15 on, or after the date of enactment of this Act; 16 and 17 (B) includes any program, project, or ac- 18 tivity of the executive branch of the Federal 19 Government authorized under or carried out 20 using amounts made available under— 21 (i) the Paycheck Protection Program 22 and Health Care Enhancement Act (Public 23 Law 116–139), or an amendment made by 24 that Act; 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 7227 IH (ii) the CARES Act, or an amend- 1 ment made by that Act; 2 (iii) the Families First Coronavirus 3 Response Act (Public Law 116–127), or an 4 amendment made by that Act; or 5 (iv) the Coronavirus Preparedness and 6 Response Supplemental Appropriations 7 Act, 2020 (Public Law 116–123), or an 8 amendment made by that Act; 9 (4) the term ‘‘covered funds’’ means any con- 10 tract, subcontract, grant, subgrant, loan, loan guar- 11 antee, or other payment for which— 12 (A) the Federal Government provides any 13 portion of the funds or property that is pro- 14 vided, requested, or demanded; and 15 (B) any portion of the funds are appro- 16 priated or otherwise made available under or to 17 carry out a Coronavirus pandemic-related pro- 18 gram, project, or activity; 19 (5) the term ‘‘employee’’— 20 (A) except as provided under subparagraph 21 (B), means an individual performing services on 22 behalf of an employer, including any individual 23 working for an employer under a contract with 24 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 7227 IH such employer (including a contractor, subcon- 1 tractor, or agent of an employer); and 2 (B) does not include any Federal employee 3 or member of the uniformed services (as that 4 term is defined in section 101(a)(5) of title 10, 5 United States Code); 6 (6) the term ‘‘non-Federal employer’’— 7 (A) means any employer— 8 (i) with respect to covered funds— 9 (I) the contractor, subcontractor, 10 grantee, subgrantee, or recipient, as 11 the case may be, if the contractor, 12 subcontractor, grantee, subgrantee, or 13 recipient is an employer; and 14 (II) any professional membership 15 organization, certification or other 16 professional body, any agent or li- 17 censee of the Federal Government, or 18 any person acting directly or indi- 19 rectly in the interest of an employer 20 receiving covered funds; or 21 (ii) with respect to covered funds re- 22 ceived by a State or local government, the 23 State or local government receiving the 24 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 7227 IH funds and any contractor or subcontractor 1 of the State or local government; and 2 (B) does not mean any department, agen- 3 cy, or other entity of the Federal Government; 4 (7) the term ‘‘protected individual’’ means— 5 (A) an employee of, former employee of, or 6 individual seeking employment with, any non- 7 Federal employer receiving covered funds; or 8 (B) a Federal personal services contractor 9 receiving covered funds, former such Federal 10 personal services contractor, or applicant for a 11 Federal personal services contract involving 12 such funds; 13 (8) the term ‘‘reprisal’’ means an action (or, as 14 applicable, inaction) that is discharging, demoting, 15 blacklisting, or acting or failing to take an action in 16 a manner prejudicial against, or otherwise discrimi- 17 nating against in any way (including in the hiring 18 process and including by the threat of any such ac- 19 tion or inaction) a protected individual as described 20 in section 3(a)(1) for a reason described in subpara- 21 graph (A) or (B) of such section; and 22 (9) the term ‘‘State or local government’’ 23 means— 24 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 7227 IH (A) the government of each of the several 1 States, the District of Columbia, the Common- 2 wealth of Puerto Rico, Guam, American Samoa, 3 the Virgin Islands, the Commonwealth of the 4 Northern Mariana Islands, or any other terri- 5 tory or possession of the United States; or 6 (B) the government of any political sub- 7 division of a government listed in subparagraph 8 (A). 9 SEC. 3. PROTECTING WHISTLEBLOWERS. 10 (a) PROHIBITION OF REPRISALS.— 11 (1) IN GENERAL.—A protected individual may 12 not be discharged, demoted, blacklisted, prejudiced 13 by any action or lack of action, or otherwise dis- 14 criminated against in any way (including in the hir- 15 ing process and including by the threat of any such 16 action or inaction) for— 17 (A) disclosing, being perceived as dis- 18 closing, or preparing to disclose (including as- 19 sisting in disclosing, being perceived as assist- 20 ing in disclosing, or preparing to assist in dis- 21 closing and including a disclosure made in the 22 ordinary course of the duties of the protected 23 individual) to an officer or entity described in 24 paragraph (2) information that the protected 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 7227 IH individual reasonably believes is evidence of 1 misconduct that violates, obstructs, or under- 2 mines any statute, rule, or regulation with re- 3 spect to any Coronavirus pandemic-related pro- 4 gram, project, or activity, including— 5 (i) gross mismanagement of an agency 6 contract, subcontract, grant, or subgrant 7 relating to covered funds; 8 (ii) a gross waste of covered funds; 9 (iii) a substantial and specific danger 10 to public health or safety; 11 (iv) an abuse of authority related to 12 the distribution, implementation, or use of 13 covered funds, including conflict of interest 14 or partiality; and 15 (v) a violation of any statute, rule, or 16 regulation related to an agency contract, 17 subcontract (including the competition for 18 or negotiation of a contract or sub- 19 contract), grant, or subgrant, awarded or 20 issued relating to covered funds; or 21 (B) refusing to obey an order that the pro- 22 tected individual reasonably believes would re- 23 quire that individual to violate a statute, rule, 24 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 7227 IH or regulation with respect to any Coronavirus 1 pandemic-related program, project, or activity. 2 (2) OFFICERS AND ENTITIES.—The officers and 3 entities described in this paragraph are— 4 (A) the Pandemic Response Accountability 5 Committee; 6 (B) an inspector general, including the 7 Special Inspector General for Pandemic Relief; 8 (C) the Congressional Oversight Commis- 9 sion; 10 (D) the Comptroller General of the United 11 States; 12 (E) a Member of Congress; 13 (F) a congressional committee; 14 (G) a State or Federal regulatory or law 15 enforcement agency; 16 (H)(i) an individual with supervisory au- 17 thority over a protected individual; or 18 (ii) another individual who— 19 (I) has authority to investigate, dis- 20 cover, or terminate misconduct; and 21 (II) works for the non-Federal em- 22 ployer (in the case of a protected individual 23 described in section 2(7)(A)), or the Fed- 24 eral Government (in the case of a pro- 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 7227 IH tected individual described in section 1 2(7)(B)); 2 (I) a court or grand jury; 3 (J) an officer or representative of a labor 4 organization; or 5 (K) the head of a Federal agency or a des- 6 ignee of such a head. 7 (3) APPLICATION.— 8 (A) IN GENERAL.—For the purposes of 9 paragraph (1)— 10 (i) a protected individual who initiates 11 or provides evidence of misconduct by a 12 contractor, subcontractor, grantee, or sub- 13 grantee in any judicial or administrative 14 proceeding relating to waste, fraud, or 15 abuse in connection with a Federal con- 16 tract or grant shall be deemed to have 17 made a disclosure covered by such para- 18 graph; and 19 (ii) any discharge, demotion, discrimi- 20 nation, or other reprisal described in para- 21 graph (1) is prohibited even if it is under- 22 taken at the request of an executive branch 23 officer or employee, unless the request 24 takes the form of a non-discretionary di- 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 7227 IH rective and is within the authority of the 1 executive branch official making the re- 2 quest. 3 (B) PROTECTION OF WHISTLEBLOWER 4 IDENTITY.— 5 (i) IN GENERAL.—Except as required 6 by law, an officer or entity described in 7 paragraph (2) that receives information 8 under paragraph (1) and any individual or 9 entity to which the officer or entity dis- 10 closes the information may not disclose the 11 identity or identifying information of the 12 protected individual providing the informa- 13 tion without explicit written consent of the 14 protected individual. 15 (ii) NOTICE.—If disclosure of the 16 identity or identifying information of a 17 protected individual providing information 18 under paragraph (1) is required by law, 19 the recipient shall provide timely notice of 20 the disclosure to the protected individual. 21 (b) INVESTIGATION OF COMPLAINTS.— 22 (1) COMPLAINTS.— 23 (A) IN GENERAL.—A protected individual 24 who believes that the individual has been sub- 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 7227 IH jected to a reprisal prohibited under subsection 1 (a) may, within 3 years after learning of the al- 2 leged reprisal, submit a complaint regarding the 3 reprisal to the Secretary of Labor in accordance 4 with paragraph (2). 5 (B) RESPONSE.—Not later than 60 days 6 after the submission of a complaint under sub- 7 paragraph (A), the applicable non-Federal em- 8 ployer (or the applicable agency head in the 9 case of a Federal personal services contract in- 10 volving covered funds) shall submit an answer 11 to the complaint to the Secretary of Labor. 12 (2) REMEDY AND ENFORCEMENT AUTHOR- 13 ITY.— 14 (A) RULES AND PROCEDURES.—Except to 15 the extent provided otherwise in this section, 16 any action alleging a reprisal prohibited under 17 subsection (a) shall be governed, to the max- 18 imum extent practicable, by the rules and pro- 19 cedures for administrative and judicial enforce- 20 ment, including for investigations, civil actions, 21 appeals, and relief, set forth under section 22 7623(d) of the Internal Revenue Code of 1986. 23 (B) BURDEN OF PROOF.—The Secretary 24 of Labor, or the officer presiding in a judicial 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 7227 IH or administrative proceeding, shall apply the 1 legal burdens of proof specified in section 2 1221(e) of title 5, United States Code, in deter- 3 mining whether a reprisal prohibited under sub- 4 section (a) has occurred in accordance with the 5 rules and procedures under subparagraph (A). 6 (C) ACCESS TO INVESTIGATIVE FILE OF 7 THE SECRETARY OF LABOR.— 8 (i) IN GENERAL.—A protected indi- 9 vidual alleging a reprisal under this section 10 shall have access to the investigation file of 11 the Secretary of Labor in accordance with 12 section 552a of title 5, United States Code 13 (commonly referred to as the ‘‘Privacy 14 Act’’). The investigation of the Secretary 15 of Labor shall be deemed closed for pur- 16 poses of disclosure under such section 17 when an individual files an appeal to an 18 agency head or a court of competent juris- 19 diction. 20 (ii) CIVIL ACTION.—In the event a 21 protected individual alleging a reprisal 22 under this section brings a civil action 23 under this subsection, the protected indi- 24 vidual and the non-Federal employer (or 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H7227.IH H7227 kjohnson on DSK79L0C42PROD with BILLS 13 •HR 7227 IH the head of the applicable agency in the 1 case of a Federal personal services con- 2 tract involving covered funds), if applica- 3 ble, shall have access to the investigative 4 file of the Secretary of Labor in accord- 5 ance with the section 552a of title 5, 6 United States Code. 7 (iii) EXCEPTION.—The Secretary of 8 Labor may exclude from disclosure— 9 (I) information protected from 10 disclosure by a provision of law; and 11 [Text truncated for display. 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