Sec. 126. Enhanced protections from retaliation
2,652 words·~12 min read·
/bill/117/s/3285/is/section-126A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 11(c)(1) of the Occupational Safety and Health Act of 1970 ( 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 other manner retaliate or discriminate against or cause to be retaliated or 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 of such Act ( 29 U.S.C. 660 ) is amended— in subsection (c)— in paragraph (2)— by striking discharged or otherwise discriminated against by any person in violation of this subsection and inserting aggrieved by a violation of this subsection ; and by striking such discrimination and inserting such violation ; and by adding at the end the following:
Paragraphs
(2)and
(3)shall not apply with respect to a complaint filed by an employee of an employer that is a covered establishment, as defined in section 3 of the Protecting America's Meatpacking Workers Act . ; and by adding at the end the following: In this subsection: The term complainant means a complainant who is a covered employee. The term covered employee means an employee of a covered employer. The term covered employer means an employer that is a covered establishment, as defined in section 3 of the Protecting America's Meatpacking Workers Act . The term respondent means a respondent who is a covered employer. No person shall discharge, or cause to be discharged, or in any other manner retaliate or discriminate against, or cause to be retaliated or discriminated against, a covered employee for refusing to perform the covered employee’s duties if the covered employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the covered employee or other covered employees. For purposes of subparagraph (A), the circumstances causing the covered employee’s reasonable apprehension described in such subparagraph shall be of such a nature that a reasonable person, under the circumstances confronting the covered employee, would conclude that performing the duties described in such subparagraph would have the result described in such subparagraph. In order to qualify for protection under this paragraph, the covered employee, when practicable, shall have communicated or attempted to communicate the safety or health concern to the covered employer and have not received from the covered employer a response reasonably calculated to allay such concern. Any covered employee who believes that the covered employee has been discharged, disciplined, or otherwise retaliated or discriminated against by any person in violation of subsection (c)(1) or paragraph
(2)of this subsection may seek relief for such violation by filing a complaint with the Secretary under paragraph (5). A covered 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 subsection (c)(1) or paragraph
(2)of this subsection occurs; or the date on which the covered employee knows or should reasonably have known that such alleged violation occurred. Except in cases when the covered employee has been discharged, a violation of subsection (c)(1) or paragraph
(2)of this subsection shall be considered to have occurred on the last date an alleged repeat violation occurred. A covered employee may, within the time period required under paragraph (4)(A), file a complaint with the Secretary alleging a violation of subsection (c)(1) or paragraph
(2)of this subsection. 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 under this paragraph, the Secretary shall— determine whether reasonable cause exists to believe that a violation of subsection (c)(1) or paragraph
(2)of this subsection 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 subsection (c)(1) or paragraph
(2)of this subsection 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 (5)(B) or a preliminary order under paragraph (6), respectively; by the complainant within 30 days after the date the complaint is dismissed without investigation by the Secretary under paragraph (5)(A); or by the complainant within 120 days after the date of filing the complaint under paragraph (5), 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 subsection (c)(1) or paragraph
(2)of this subsection 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 subsection (c)(1) or paragraph
(2)of this subsection 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 covered 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 subsection (c)(1) or paragraph
(2)of this subsection 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, administrative law judge, review board, or a court may determine that a violation of subsection (c)(1) or paragraph
(2)of this subsection has occurred only if the complainant demonstrates that any conduct described in subsection (c)(1) or paragraph
(2)of this subsection 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, administrative law judge, review board, or a court determines that a covered employer has violated subsection (c)(1) or paragraph
(2)of this subsection, the Secretary, administrative law judge, review board, or court, respectively, shall have jurisdiction to order all appropriate relief, including injunctive relief, and 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 or an 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 covered employee against the covered 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 covered employee who exercises rights under any Federal or State law or common law, or under any collective bargaining agreement. A covered employee of a covered employer who is located in a State that has a State plan approved under section 18 may file a complaint alleging a violation of subsection (c)(1) or paragraph
(2)of this subsection 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. The Secretary shall apply an unrebuttable presumption of retaliation in any complaint initiated under paragraph
(5)in which the Secretary finds a covered employee suffers an adverse action within 90 days of the date on which the covered employee took any action protected under subsection (c)(1) or raised any reasonable apprehension under paragraph
(2)of this subsection. The remedies provided for under this subsection supplement, and do not supplant, the private right of action under section 130 of the Protecting America's Meatpacking Workers Act . For purposes of this subsection and subsection (c)— the term retaliate or discriminate against includes reporting, or threatening to report, to a Federal, State, or local authority the suspected citizenship or immigration status of a covered employee, or of a family member of a covered employee, because the covered employee raises a concern about workplace health and safety practices or hazards; and the term family member , with respect to the family member of a covered employee, means an individual who— is related to the covered employee by blood, adoption, marriage, or domestic partnership; and is a significant other, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, or grandchild of the covered employee. . Section 17(j) of such Act ( 29 U.S.C. 666(j) ) is amended by inserting before the period the following: , including the history of violations under subsection
(c)or
(d)of section 11 .
Connectionstraces to 2
Traces to 2 documents
Citation graph
cites case law
Cites 2Cited by 0 across 0 sources