Sec. 201. Enhanced protections from retaliation
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Section 11(c)(1) ( 29 U.S.C. 660(c)(1) ) is amended— by striking discharge and all that follows through because such and inserting the following: discharge or cause to be discharged, or in any manner discriminate against or cause to be discriminated against, any employee because— such ; by striking this Act or has and inserting the following: this Act; such employee has ; by striking in any such proceeding or because of the exercise and inserting the following: before Congress or in any Federal or State proceeding related to safety or health; such employee has refused to violate any provision of this Act; or of the exercise ; and by inserting before the period at the end the following: , including the reporting of any injury, illness, or unsafe condition to the employer, agent of the employer, safety and health committee involved, or employee safety and health representative involved .
Section 11(c) ( 29 U.S.C. 660(c) ) is amended by striking paragraph
(2)and inserting the following: No person shall discharge, or cause to be discharged, or in any manner discriminate against, or cause to be discriminated against, an employee for refusing to perform the employee’s duties if the employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee or other employees. For purposes of subparagraph (A), the circumstances causing the employee’s good-faith belief that performing such duties would pose a safety or health hazard shall be of such a nature that a reasonable person, under the circumstances confronting the employee, would conclude that there is such a hazard. In order to qualify for protection under this paragraph, the employee, when practicable, shall have communicated or attempted to communicate the safety or health concern to the employer and have not received from the employer a response reasonably calculated to allay such concern. . Section 11(c) ( 29 U.S.C. 660(c) ) is amended by striking paragraph
(3)and inserting the following: Any employee who believes that the employee has been discharged, disciplined, or otherwise discriminated against by any person in violation of paragraph
(1)or
(2)may seek relief for such violation by filing a complaint with the Secretary under paragraph (5). An employee may take the action permitted by paragraph
(3)not later than 180 days after the later of— the date on which an alleged violation of paragraph
(1)or
(2)occurs; or the date on which the employee knows or should reasonably have known that such alleged violation occurred. Except in cases when the employee has been discharged, a violation of paragraph
(1)or
(2)shall be considered to have occurred on the last date an alleged repeat violation occurred. An employee may, within the time period required under paragraph
(4), file a complaint with the Secretary alleging a violation of paragraph
(1)or (2). If the complaint alleges a prima facie case, the Secretary shall conduct an investigation of the allegations in the complaint, which— shall include— interviewing the complainant; providing the respondent an opportunity to— submit to the Secretary a written response to the complaint; and meet with the Secretary to present statements from witnesses or provide evidence; and providing the complainant an opportunity to— receive any statements or evidence provided to the Secretary; meet with the Secretary; and rebut any statements or evidence; and may include issuing subpoenas for the purposes of such investigation. Not later than 90 days after the filing of the complaint, the Secretary shall— determine whether reasonable cause exists to believe that a violation of paragraph
(1)or
(2)has occurred; and issue a decision granting or denying relief. If, after completion of an investigation under paragraph (5)(A) , the Secretary finds reasonable cause to believe that a violation of paragraph
(1)or
(2)has occurred, the Secretary shall issue a preliminary order providing relief authorized under paragraph
(14)at the same time the Secretary issues a decision under paragraph (5)(B) . If a de novo hearing is not requested within the time period required under paragraph (7)(A)(i) , such preliminary order shall be deemed a final order of the Secretary and is not subject to judicial review. A de novo hearing on the record before an administrative law judge may be requested— by the complainant or respondent within 30 days after receiving notification of a decision granting or denying relief issued under paragraph
(B)or paragraph
(6)respectively; by the complainant within 30 days after the date the complaint is dismissed without investigation by the Secretary under paragraph
(5); or by the complainant within 120 days after the date of filing the complaint, if the Secretary has not issued a decision under paragraph
(5)(B). The request for a hearing shall not operate to stay any preliminary reinstatement order issued under paragraph
(6). A hearing requested under this paragraph shall be conducted expeditiously and in accordance with rules established by the Secretary for hearings conducted by administrative law judges. In conducting any such hearing, the administrative law judge may issue subpoenas. The respondent or complainant may request the issuance of subpoenas that require the deposition of, or the attendance and testimony of, witnesses and the production of any evidence (including any books, papers, documents, or recordings) relating to the matter under consideration. The administrative law judge shall issue a decision not later than 90 days after the date on which a hearing was requested under this paragraph and promptly notify, in writing, the parties and the Secretary of such decision, including the findings of fact and conclusions of law. If the administrative law judge finds that a violation of paragraph
(1)or
(2)has occurred, the judge shall issue an order for relief under paragraph
(14). If review under paragraph
(8)is not timely requested, such order shall be deemed a final order of the Secretary that is not subject to judicial review. Not later than 30 days after the date of notification of a decision and order issued by an administrative law judge under paragraph
(7), the complainant or respondent may file, with objections, an administrative appeal with an administrative review body designated by the Secretary (referred to in this paragraph as the review board ). In reviewing the decision and order of the administrative law judge, the review board 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. If the review board grants an administrative appeal, the review board shall issue a final decision and order affirming or reversing, in whole or in part, the decision under review by not later than 90 days after receipt of the administrative appeal. If it is determined that a violation of paragraph
(1)or
(2)has occurred, the review board shall issue a final decision and order providing relief authorized under paragraph (14). Such decision and order shall constitute final agency action with respect to the matter appealed. At any time before issuance of a final order, an investigation or proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the parties. Neither the Secretary, an administrative law judge, nor the review board conducting a hearing under this subsection shall accept a settlement that contains conditions conflicting with the rights protected under this Act or that are contrary to public policy, including a restriction on a complainant’s right to future employment with employers other than the specific employers named in a complaint. The complainant may bring a de novo action described in subparagraph
(B)if— an administrative law judge has not issued a decision and order within the 90-day time period required under paragraph
(7)(B)(iii); or the review board has not issued a decision and order within the 90-day time period required under paragraph
(8)(C). Such de novo action may be brought at law or equity in the United States district court for the district where a violation of paragraph
(1)or
(2)allegedly occurred or where the complainant resided on the date of such alleged violation. The court shall have jurisdiction over such action without regard to the amount in controversy and to order appropriate relief under paragraph (14). Such action shall, at the request of either party to such action, be tried by the court with a jury. Any party adversely affected or aggrieved by a final decision and order issued under this subsection may obtain review of such decision and order in the United States Court of Appeals for the circuit where the violation, with respect to which such final decision and order was issued, allegedly occurred or where the complainant resided on the date of such alleged violation. To obtain such review, a party shall file a petition for review not later than 60 days after the final decision and order was issued. Such review shall conform to 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 final decision and order. An order and decision with respect to which review may be obtained under subparagraph
(A)shall not be subject to judicial review in any criminal or other civil proceeding. If a respondent fails to comply with an order issued under this subsection, the Secretary or the complainant on whose behalf the order was issued may file a civil action for enforcement in the United States district court for the district in which the violation was found to occur to enforce such order. If both the Secretary and the complainant file such action, the action of the Secretary shall take precedence. The district court shall have jurisdiction to grant all appropriate relief described in paragraph (14). In making a determination or adjudicating a complaint pursuant to this subsection, the Secretary or an administrative law judge, review board, or court may determine that a violation of paragraph
(1)or
(2)has occurred only if the complainant demonstrates that any conduct described in paragraph
(1)or
(2)with respect to the complainant was a contributing factor in the adverse action alleged in the complaint. Notwithstanding subparagraph (A), a decision or order that is favorable to the complainant shall not be issued in any administrative or judicial action pursuant to this subsection if the respondent demonstrates by clear and convincing evidence that the respondent would have taken the same adverse action in the absence of such conduct. If the Secretary or an administrative law judge, review board, or court determines that a violation of paragraph
(1)or
(2)has occurred, the Secretary, administrative law judge, review board, or court, respectively, shall have jurisdiction to order all appropriate relief, including injunctive relief, compensatory and exemplary damages, including— affirmative action to abate the violation; reinstatement without loss of position or seniority, and restoration of the terms, rights, conditions, and privileges associated with the complainant’s employment, including opportunities for promotions to positions with equivalent or better compensation for which the complainant is qualified; compensatory and consequential damages sufficient to make the complainant whole, (including back pay, prejudgment interest, and other damages); and 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. If the Secretary, administrative law judge, review board, or court grants an order for relief under subparagraph (A), the Secretary, administrative law judge, review board, or court, respectively, shall assess, at the request of the employee against the employer— reasonable attorneys’ fees; and costs (including expert witness fees) reasonably incurred, as determined by the Secretary, administrative law judge, review board, or court, respectively, in connection with bringing the complaint upon which the order was issued. The rights and remedies provided for in this subsection may not be waived by any agreement, policy, form, or condition of employment, including by any pre-dispute arbitration agreement or collective bargaining agreement. Nothing in this subsection shall be construed to diminish the rights, privileges, or remedies of any employee who exercises rights under any Federal or State law or common law, or under any collective bargaining agreement. An employee of an employer who is located in a State that has a State plan approved under section 18 may file a complaint alleging a violation of paragraph
(1)or
(2)by such employer with— the Secretary under paragraph
(5); or a State plan administrator in such State. If— the Secretary receives a complaint pursuant to subparagraph (A)(i), the Secretary shall not refer such complaint to a State plan administrator for resolution; or a State plan administrator receives a complaint pursuant to subparagraph (A)(ii), the State plan administrator shall not refer such complaint to the Secretary for resolution. . Section 17(j) ( 29 U.S.C. 666(j) ) is amended by inserting before the period the following: , including the history of violations under section 11(c) .
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