Sec. 9. Whistleblower protection for employees
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Part C of chapter 2 of the National Flood Insurance Act of 1968 ( 42 U.S.C. 4081 et seq.), as amended by the preceding provisions of this Act, is further amended by adding at the end the following new section: No person shall terminate or in any other way discriminate against, or cause to be terminated or discriminated against, any covered employee or any authorized representative of covered employees by reason of the fact that such employee or representative, whether at the initiative of the employee or in the ordinary course of the duties of the employee (or any person acting pursuant to a request of the employee), has— provided, caused to be provided, or is about to provide or cause to be provided, information to the employer, the Agency, the Federal Bureau of Investigation, or any other State, local, or Federal, government authority or law enforcement agency relating to any violation of, or any act or omission that there are reasonable grounds to believe (whether or not the employee actually has such belief) to be a violation of, any provision of any law relating to the National Flood Insurance Program or any rule, order, standard, or prohibition prescribed by the Agency in connection with the National Flood Insurance Program; testified or will testify in any proceeding resulting from the administration or enforcement of any provision of any law relating to the National Flood Insurance Program or any rule, order, standard, or prohibition prescribed by the Agency in connection with the National Flood Insurance program; filed, instituted, or caused to be filed or instituted any proceeding under the National Flood Insurance Program; or objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any law, rule, order, standard, or prohibition, subject to the jurisdiction of, or enforceable by, the Agency in connection with the National Flood Insurance Program.
A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection
(a)may, not later than 180 days after the date on which such alleged violation occurs, file (or have any person file on his or her behalf) a complaint with the Administrator alleging such discharge or discrimination and identifying the person responsible for such act. Upon receipt of such a complaint, the Administrator shall notify, in writing, the person named in the complaint who is alleged to have committed the violation, of— the filing of the complaint; the allegations contained in the complaint; the substance of evidence supporting the complaint; and opportunities that will be afforded to such person under paragraph (2). Not later than 60 days after the date of receipt of a complaint filed under paragraph (1), and after affording the complainant and the person named in the complaint who is alleged to have committed the violation that is the basis for the complaint an opportunity to submit to the Administrator a written response to the complaint and an opportunity to meet with a representative of the Administrator to present statements from witnesses, the Administrator shall— initiate an investigation and determine whether there is reasonable cause to believe that the complaint has merit; and notify the complainant and the person alleged to have committed the violation of subsection (a), in writing, of such determination. If the Administrator concludes that there is reasonable cause to believe that a violation of subsection
(a)has occurred, the Administrator shall, together with the notice under subparagraph (A)(ii), issue a preliminary order providing the relief prescribed by paragraph (4)(B). Not later than 30 days after the date of receipt of notification of a determination of the Administrator under this paragraph, either the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing on the record. The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order. Any such hearing shall be conducted expeditiously, and if a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not subject to judicial review. The Administrator shall dismiss a complaint filed under this subsection, and shall not conduct an investigation otherwise required under paragraph (2), unless the complainant makes a prima facie showing that any behavior described in paragraphs
(1)through
(4)of subsection
(a)was a contributing factor in the unfavorable personnel action alleged in the complaint. Notwithstanding a finding by the Administrator that the complainant has made the showing required under subparagraph (A), no investigation otherwise required under paragraph
(2)shall be conducted, if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior. The Administrator may determine that a violation of subsection
(a)has occurred only if the complainant demonstrates that any behavior described in paragraphs
(1)through
(4)of subsection
(a)was a contributing factor in the unfavorable personnel action alleged in the complaint. Relief may not be ordered under subparagraph
(A)if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior. Not later than 120 days after the date of conclusion of any hearing under paragraph (2), the Administrator shall issue a final order providing the relief prescribed by this paragraph or denying the complaint. At any time before issuance of a final order, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Administrator, the complainant, and the person alleged to have committed the violation. If, in response to a complaint filed under paragraph (1), the Administrator determines that a violation of subsection
(a)has occurred, the Administrator shall order the person who committed such violation— to take affirmative action to abate the violation; to reinstate the complainant to his or her former position, together with compensation, including twice the amount of back pay due, and restore the terms, conditions, and privileges associated with his or her employment; and to provide compensatory damages to the complainant. If an order is issued under clause (i), the Administrator, at the request of the complainant, shall assess against the person against whom the order is issued, a sum equal to the aggregate amount of all costs and expenses (including attorney fees and expert witness fees) reasonably incurred, as determined by the Administrator, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. If the Administrator finds that a complaint under paragraph
(1)is frivolous or has been brought in bad faith, the Administrator may award to the prevailing employer a reasonable attorney fee, not exceeding $1,000, to be paid by the complainant. If the Administrator has not issued a final order within 210 days after the date of filing of a complaint under this subsection, or within 90 days after the date of receipt of a written determination, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States having jurisdiction, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such action, be tried by the court with a jury. A proceeding under clause
(i)shall be governed by the same legal burdens of proof specified in paragraph (3). The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including— reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination; compensation in the amount equal to twice the amount of back pay due, with interest; and compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney fees. Unless the complainant brings an action under subparagraph (D), any person adversely affected or aggrieved by a final order issued under subparagraph
(A)may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such violation, not later than 60 days after the date of the issuance of the final order of the Administrator under subparagraph (A). 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 order. An order of the Administrator with respect to which review could have been obtained under this subparagraph shall not be subject to judicial review in any criminal or other civil proceeding. If any person has failed to comply with a final order issued under paragraph (4), the Administrator may file a civil action in the United States district court for the district in which the violation was found to have occurred, or in the United States district court for the District of Columbia, to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including injunctive relief and compensatory damages. A person on whose behalf an order was issued under paragraph
(4)may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. The court, in issuing any final order under this paragraph, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28, United States Code. Except as provided under paragraph (3), and notwithstanding any other provision of law, the rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment, including by any pre-dispute arbitration agreement. Except as provided under paragraph (3), and notwithstanding any other provision of law, no pre-dispute arbitration agreement shall be valid or enforceable to the extent that it requires arbitration of a dispute arising under this section. Notwithstanding paragraphs
(1)and (2), an arbitration provision in a collective bargaining agreement shall be enforceable as to disputes arising under subsection (a)(4), unless the Administrator determines, by rule, that such provision is inconsistent with the purposes of this title. For purposes of this section, the following definitions shall apply: The term Administrator means the Administrator of the Federal Emergency Management Agency. The term Agency means the Federal Emergency Management Agency. The term covered employee means any individual performing tasks related to the National Flood Insurance Program, including such employees of— the Agency; the Department of Homeland Security; an insurance company participating in the Write Your Own program (as such term is defined in section 100202 of the Biggert-Waters Flood Insurance Reform Act of 2012 ( 42 U.S.C. 4004 )); a third-party administrator for an insurance company described in subparagraph (C); an engineer, or engineering company, engaged in providing engineering services in connection with the National Flood Insurance Program, or a sub-contractor of such an engineer or company; and a claims adjuster, or claims adjusting company, engaged in providing claims adjusting services in connection with the National Flood Insurance Program, or a sub-contractor of such an claims adjuster or company. . Subsection
(a)of section 1310 of the National Flood Insurance Act of 1968 ( 42 U.S.C. 4017(a) ), as amended by section 6(b) of this Act, is further amended by inserting after paragraph
(7)the following new paragraph: for penalties, relief, and costs under section 1352(b), to the extent ordered to be paid by the Administrator or any officer or employee of the Federal Emergency Management Agency; .
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