Congressional Whistleblower Protection Act of 2020

II 116TH CONGRESS 2D SESSION S. 4476 To provide protections for employees of, former employees of, and applicants for employment with Federal agencies, contractors, and grantees whose right to petition or furnish information to Congress is interfered with or denied. IN THE SENATE OF THE UNITED STATES AUGUST 6, 2020 Mrs. FEINSTEIN (for herself, Mr. PETERS, Mr. LEAHY, Mr. WYDEN, Mr. DURBIN, Mr. CARPER, Mr. CARDIN, Ms. KLOBUCHAR, Mr. WHITEHOUSE, Mr. WARNER, Mr. BLUMENTHAL, Ms. BALDWIN, Ms. HIRONO, Mr. MAR- KEY, Mr. VAN HOLLEN, and Ms. CORTEZ MASTO) introduced the fol- lowing bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To provide protections for employees of, former employees of, and applicants for employment with Federal agencies, contractors, and grantees whose right to petition or fur- nish information to Congress is interfered with or denied. 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 ‘‘Congressional Whistle- 4 blower Protection Act of 2020’’. 5 VerDate Sep 11 2014 04:05 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4476.IS S4476 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4476 IS SEC. 2. PROTECTIONS FOR COVERED INDIVIDUALS. 1 Section 7211 of title 5, United States Code, is 2 amended— 3 (1) by striking ‘‘The right of employees’’ and 4 inserting the following: 5 ‘‘(a) IN GENERAL.—The right of covered individ- 6 uals’’; and 7 (2) by adding at the end the following: 8 ‘‘(b) REMEDIES.— 9 ‘‘(1) ADMINISTRATIVE REMEDIES.— 10 ‘‘(A) IN GENERAL.—A covered individual 11 with respect to a Federal agency (other than a 12 covered individual described in subparagraph 13 (B), (C), or (D)) who is aggrieved by a violation 14 of subsection (a) may seek corrective action 15 under sections 1214 and 1221 in the same 16 manner as an individual who is aggrieved by a 17 prohibited personnel practice described in sec- 18 tion 2302(b)(8). 19 ‘‘(B) FBI EMPLOYEES.—A covered indi- 20 vidual with respect to the Federal Bureau of 21 Investigation who is aggrieved by a violation of 22 subsection (a) may seek corrective action under 23 section 2303. 24 ‘‘(C) INTELLIGENCE COMMUNITY EMPLOY- 25 EES.—A covered individual with respect to a 26 VerDate Sep 11 2014 04:05 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4476.IS S4476 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4476 IS covered intelligence community element (as de- 1 fined in section 1104(a) of the National Secu- 2 rity Act of 1947 (50 U.S.C. 3234(a))) who is 3 aggrieved by a violation of subsection (a) may 4 seek corrective action under section 1104 of the 5 National Security Act of 1947 (50 U.S.C. 6 3234) or subsection (b)(7) or (j) of section 7 3001 of that Act (50 U.S.C. 3341). 8 ‘‘(D) CONTRACTOR EMPLOYEES.—A cov- 9 ered individual with respect to a Federal agency 10 who is an employee of, former employee of, or 11 applicant for employment with, a contractor, 12 subcontractor, grantee, subgrantee, or personal 13 services contractor (as those terms are used in 14 section 2409 of title 10 and section 4712 of 15 title 41) of the agency and who is aggrieved by 16 a violation of subsection (a) of this section may 17 seek corrective action under section 2409 of 18 title 10 or section 4712 of title 41. 19 ‘‘(E) BURDEN OF PROOF.—The burdens of 20 proof under subsection (e) of section 1221 shall 21 apply to an allegation of a violation of sub- 22 section (a) of this section made under subpara- 23 graph (A), (B), (C), or (D) of this paragraph 24 in the same manner as those burdens of proof 25 VerDate Sep 11 2014 04:05 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4476.IS S4476 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4476 IS apply to an allegation of a prohibited personnel 1 practice under such section 1221. 2 ‘‘(F) CLASS OF INDIVIDUALS ENTITLED TO 3 SEEK CORRECTIVE ACTION.—The right to seek 4 corrective action under subparagraph (A), (B), 5 (C), or (D) shall apply to a covered individual 6 who is an employee of, former employee of, or 7 applicant for employment with, a Federal agen- 8 cy described in the applicable subparagraph or 9 a contractor, subcontractor, grantee, subgrant- 10 ee, or personal services contractor (as those 11 terms are used in section 2409 of title 10 and 12 section 4712 of title 41) of such a Federal 13 agency, notwithstanding the fact that a provi- 14 sion of law referenced in the applicable sub- 15 paragraph does not authorize one or more of 16 those types of covered individuals to seek cor- 17 rective action. 18 ‘‘(2) PRIVATE RIGHT OF ACTION.— 19 ‘‘(A) IN GENERAL.—If a final decision pro- 20 viding relief for a violation of subsection (a) al- 21 leged under subparagraph (A), (B), (C), or (D) 22 of paragraph (1) of this subsection is not issued 23 within 210 days of the date on which the cov- 24 ered individual seeks corrective action under the 25 VerDate Sep 11 2014 04:05 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4476.IS S4476 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4476 IS applicable subparagraph and there is no show- 1 ing that the delay is due to the bad faith of the 2 covered individual, the covered individual may 3 bring an action at law or equity for de novo re- 4 view in the appropriate district court of the 5 United States, which shall have jurisdiction 6 over the action without regard to the amount in 7 controversy, for lost wages and benefits, rein- 8 statement, costs and attorney fees, compen- 9 satory damages, equitable or injunctive relief, 10 or any other relief that the court considers ap- 11 propriate. 12 ‘‘(B) JURY TRIAL.—An action brought 13 under subparagraph (A) shall, upon the request 14 of the covered individual, be tried by the court 15 with a jury. 16 ‘‘(C) BURDEN OF PROOF.—The burdens of 17 proof under subsection (e) of section 1221 shall 18 apply to an allegation of a violation of sub- 19 section (a) of this section in an action brought 20 under this paragraph in the same manner as 21 those burdens of proof apply to an allegation of 22 a prohibited personnel practice under such sec- 23 tion 1221. 24 ‘‘(c) DEFINITIONS.—For purposes of this section— 25 VerDate Sep 11 2014 04:05 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4476.IS S4476 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4476 IS ‘‘(1) the term ‘covered individual’, with respect 1 to a Federal agency, means an employee of, former 2 employee of, or applicant for employment with— 3 ‘‘(A) the agency; or 4 ‘‘(B) a contractor, subcontractor, grantee, 5 subgrantee, or personal services contractor (as 6 those terms are used in section 2409 of title 10 7 and section 4712 of title 41) of the agency; and 8 ‘‘(2) the term ‘Federal agency’ means an agen- 9 cy, office, or other establishment in the executive, 10 legislative, or judicial branch of the Federal Govern- 11 ment.’’. 12 Æ VerDate Sep 11 2014 04:05 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\S4476.IS S4476 kjohnson on DSK79L0C42PROD with BILLS