Sec. 11. Protecting whistleblowers
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/bill/116/hr/7076/ih/section-11A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
An employee of, former employee of, or individual seeking employment with any non-Federal employer or Federal personal services contractor receiving covered funds may not be discharged, demoted, blacklisted, prejudiced by any action or lack of action, or otherwise discriminated against in any way (including in the hiring process and including by the threat of any such action or inaction) for disclosing, being perceived as disclosing, or preparing to disclose (including a disclosure made in the ordinary course of an employee’s duties) to an officer or entity described in paragraph
(2)information that the employee, former employee, or individual seeking employment reasonably believes would require the employee to violate this Act, or that the employee, former employee, or individual seeking employment reasonably believes is evidence of misconduct that violates, obstructs, or undermines any statutes, rules, or regulations with respect to any Coronavirus pandemic-related program, project, or activity, including— gross mismanagement of an agency contract, subcontract, grant, or subgrant relating to covered funds; a gross waste of covered funds; a substantial and specific danger to public health or safety; an abuse of authority related to the distribution, implementation, or use of covered funds, including conflict of interest or partiality; and a violation of any statute, rule, or regulation related to an agency contract, subcontract (including the competition for or negotiation of a contract or subcontract), grant, or subgrant, awarded, or issued relating to covered funds. The officers and entities described in this paragraph are— the Pandemic Response Accountability Committee; an inspector general, including the Special Inspector General for Pandemic Relief; the Congressional Oversight Commission; the Comptroller General of the United States; a Member of Congress; a congressional committee; a State or Federal regulatory or law enforcement agency; an individual with supervisory authority over the employee (or such other person working for the non-Federal employer who has the authority to investigate, discover, or terminate misconduct); a court or grand jury; an officer or representative of a labor organization; or the head of a Federal agency or a designee of such a head. For the purposes of paragraph (1)— an employee, former employee, or individual seeking employment who initiates or provides evidence of misconduct by a contractor, subcontractor, grantee, or subgrantee in any judicial or administrative proceeding relating to waste, fraud, or abuse in connection with a Federal contract or grant shall be deemed to have made a disclosure covered by such paragraph; and any discharge, demotion, discrimination, or other reprisal described in paragraph
(1)is prohibited even if it is undertaken at the request of an executive branch officer or employee, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request. Except as required by law, an officer or entity described in paragraph
(2)that receives information under paragraph
(1)and any individual or entity to which the officer or entity discloses the information may not disclose the identity or identifying information of the individual providing the information without explicit written consent of the individual. If disclosure of the identity or identifying information of an individual providing information under paragraph
(1)is required by law, the recipient shall provide timely notice of the disclosure to the individual. An individual who believes that the individual has been subjected to a reprisal prohibited under subsection
(a)may, within 3 years after learning of the alleged reprisal, submit a complaint regarding the reprisal to the Secretary of Labor in accordance with the rules and procedures under subsection (c)(1). Not later than 60 days after the submission of a complaint under subparagraph (A), the applicable non-Federal employer shall submit an answer to the complaint to the Secretary of Labor. Except as provided under paragraph (3), and unless the Secretary of Labor determines that a complaint submitted under subparagraph
(A)is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint, the Secretary of Labor shall investigate the complaint and, upon completion of such investigation, submit a report to the individual submitting the complaint, the applicable non-Federal employer, the head of the appropriate agency, Congress, the Congressional Oversight Committee, the Special Inspector General for Pandemic Relief (as appropriate), any appropriate inspector general, and the Pandemic Response Accountability Committee detailing the findings of the investigation. The Secretary of Labor shall ensure that investigations of complaints under this subsection are carried out by the Assistant Secretary for Occupational Safety and Health, which may be through a whistleblower protection program or office of the Occupational Safety and Health Administration. Except as provided under subparagraph (B), not later than 180 days after receiving a complaint under paragraph (1), the Secretary of Labor shall— make a determination that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding previously has been invoked to resolve such complaint; or submit a report described in paragraph (1)(C). If the Secretary of Labor is unable to complete an investigation under this subsection in time to submit a report within the 180-day period specified under subparagraph
(A)and the individual submitting the complaint agrees to an extension of time, the Secretary of Labor shall submit a report described in paragraph (1)(C) within such additional period of time as shall be agreed upon between the Secretary of Labor and the individual submitting the complaint. If the Secretary of Labor is unable to complete an investigation under this subsection in time to submit a report within the 180-day period specified under subparagraph (A), the Secretary of Labor may extend the period for not more than an additional 180 days without the individual submitting the complaint agreeing to such extension, if the Secretary of Labor provides to the individual and the non-Federal employer, if the employer is a defendant in the individual’s complaint a written explanation for the decision, from which the Secretary of Labor may exclude information in accordance with paragraph (4)(C). The Secretary of Labor may decide not to conduct or continue an investigation under this subsection upon providing to the individual submitting the complaint and the non-Federal employer, if applicable, a written explanation for such decision, from which the Secretary of Labor may exclude information in accordance with paragraph (4)(C). Upon receipt of an explanation of a decision not to conduct or continue an investigation under subparagraph (A), the individual submitting the complaint shall be deemed to have exhausted all administrative remedies with respect to the complaint for purposes of subsection (c), without regard to the 210-day period specified under paragraph
(4)of such subsection, and immediately assume the right to a civil remedy under subsection (c)(4). An individual alleging a reprisal under this section shall have access to the investigation file of the Secretary of Labor in accordance with section 552a of title 5, United States Code (commonly referred to as the Privacy Act ). The investigation of the Secretary of Labor shall be deemed closed for purposes of disclosure under such section when an individual files an appeal to an agency head or a court of competent jurisdiction. In the event an individual alleging the reprisal under this section brings a civil action under subsection (c)(4), the individual and the non-Federal employer, if applicable, shall have access to the investigative file of the Secretary of Labor in accordance with the section 552a of title 5, United States Code. The Secretary of Labor may exclude from disclosure— information protected from disclosure by a provision of law; and any additional information the Secretary of Labor determines disclosure of which would impede a continuing investigation, if such information is disclosed once such disclosure would no longer impede such investigation, unless the Secretary of Labor determines that disclosure of law enforcement techniques, procedures, or information could reasonably be expected to risk circumvention of the law or disclose the identity of a confidential source. The Secretary of Labor investigating an alleged reprisal under this section may not respond to any inquiry or disclose any information from or about any individual alleging such reprisal, except in accordance with the provisions of section 552a of title 5, United States Code, or as required by any other applicable Federal law. Not later than 180 days after the date of enactment of this Act, and every 6 months thereafter for 5 years, the Secretary of Labor shall submit a report to Congress, which shall include— a list of any investigations for which the period was extended under clause
(i)or
(ii)of paragraph (2)(B); and a list of any investigations the Secretary of Labor decided not to conduct or continue, pursuant to paragraph (3). Except to the extent provided otherwise in this section, the Secretary of Labor shall establish rules and procedures for administrative investigations, administrative hearings, appeals, and relief under this section that, to the maximum extent practicable, are similar to the rules and procedures set forth in section 7623(d) of the Internal Revenue Code of 1986 that apply to persons alleging a discharge or other reprisal under paragraph
(1)of such section. The Secretary of Labor, head of an agency, or officer presiding in a judicial or administrative proceeding shall apply the legal burdens of proof specified in section 1221(e) of title 5, in determining whether a reprisal prohibited under this section has occurred in accordance with the rules and procedures under paragraph (1). Not later than 30 days after receiving a report of the Secretary of Labor under subsection (b), the head of the applicable agency shall— determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection (a); and issue an order denying relief in whole or in part; or take 1 or more of the actions described in subparagraph (B). The actions described in this subparagraph are the following: Order the non-Federal employer to take affirmative action to abate the reprisal. Order the non-Federal employer to reinstate the individual to the position that the individual held before the reprisal, together with the compensation (including double back pay), compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the individual in that position if the reprisal had not been taken. Order the non-Federal employer to pay the individual an amount equal to the aggregate amount of all costs and expenses (including attorney’s fees and expert witness’s fees) that were reasonably incurred by the individual for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency or a court of competent jurisdiction. Order the non-Federal employer to pay a monetary fine to the agency in an amount determined by the head of the agency or a court of competent jurisdiction. Provide a report to Congress, including findings of fact and conclusions of law relevant to the decision, if the head of the agency concerned does not accept or does not implement the recommendations of the Secretary of Labor report. An individual submitting a complaint under subsection
(b)shall be deemed to have exhausted all administrative remedies with respect to the complaint if— the head of the applicable agency— issues an order denying relief in whole or in part under paragraph (3); or has not issued an order— within 210 days after the submission of a complaint under subsection (b); or in the case of an extension of time under clause
(i)or
(ii)of subsection (b)(2)(B), within 30 days after the expiration of the extension of time; or the Secretary of Labor decides under subsection (b)(3) not to investigate or to discontinue an investigation; and there is no showing that such delay or decision is due to the bad faith of the individual. An individual who has exhausted all administrative remedies with respect to a complaint submitted under subsection
(b)may bring a de novo action at law or equity against the non-Federal employer to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. An action brought under subparagraph
(B)shall, at the request of either party to the action, be tried by the court with a jury. If any person fails to comply with an order issued under paragraph (3), the head of the agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney’s fees and costs. Any person adversely affected or aggrieved by an order issued under paragraph
(3)may obtain review of whether the order is in accordance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review under this paragraph shall be in accordance with chapter 7 of title 5, United States Code. Nothing in this section shall diminish the rights, privileges, or remedies of any employee, former employee, or individual seeking employment under any Federal or State law, or under any collective bargaining agreement. Notwithstanding any other provision of law, an individual shall be immune from civil and criminal liability with respect to a disclosure by the individual if the individual would be protected from reprisal under subsection
(a)for making the disclosure. The individual shall bear the burden of proving that the individual would be protected from reprisal under subsection
(a)for making the disclosure. Except as provided under paragraph (3), the rights and remedies provided for in this section may not be waived by any public or private agreement, policy, form, or condition of employment, including by any predispute arbitration agreement. Except as provided under paragraph (3), no predispute arbitration agreement shall be valid or enforceable if 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 the collective bargaining agreement. Any non-Federal employer receiving covered funds shall post notice of the rights and remedies provided under this section. Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination or other reprisal against an employee, a former employee, or an individual seeking employment for a disclosure other than a disclosure protected by subsection
(a)or to modify or derogate from a right or remedy otherwise available to the employee, former employee, or individual seeking employment. Nothing in this section may be construed to preempt, preclude, or limit the protections provided for public or private employees under State whistleblower laws. The Special Inspector General for Pandemic Relief, the Pandemic Relief Accountability Committee, and the Congressional Oversight Commission shall each establish a public website where any individual who believes that the individual has been subjected to a reprisal prohibited under subsection
(a)may submit a complaint regarding the reprisal. Such complaints shall be transmitted to the Secretary of Labor for enforcement in accordance with this section. There is appropriated to the Secretary of Labor for the fiscal year ending September 30, 2020, out of any money in the Treasury not otherwise appropriated, $20,000,000 to carry out this section, to remain available until expended.