I 

113TH CONGRESS 

1ST SESSION H. R. 1649 

To provide whistleblower protections to certain workers in the offshore oil 

and gas industry. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 18, 2013 

Mr. GEORGE MILLER of California (for himself, Mr. MARKEY, Mr. COURTNEY, 

and Mr. HOLT) introduced the following bill; which was referred to the 

Committee on Education and the Workforce 

A BILL 

To provide whistleblower protections to certain workers in 

the offshore oil and gas industry. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Offshore Oil and Gas 

5 Worker Whistleblower Protection Act of 2013’’. 

6 SEC. 2. WHISTLEBLOWER PROTECTIONS; EMPLOYEE PRO7 TECTION FROM OTHER RETALIATION. 

8 (a) PROHIBITION AGAINST RETALIATION.— 

9 (1) IN GENERAL.—No employer may discharge 

10 or otherwise discriminate against a covered employee 


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1 because the covered employee, whether at the cov2 ered employee’s initiative or in the ordinary course 

3 of the covered employee’s duties— 

4 (A) provided, caused to be provided, or is 

5 about to provide or cause to be provided to the 

6 employer or to a Federal or State Government 

7 official, information relating to any violation of, 

8 or any act or omission the covered employee 

9 reasonably believes to be a violation of, any pro10 vision of the Outer Continental Shelf Lands Act 

11 (43 U.S.C. 1301 et seq.), or any order, rule, 

12 regulation, standard, or prohibition under that 

13 Act, or exercised any rights provided to employ14 ees under that Act; 

15 (B) testified or is about to testify in a pro16 ceeding concerning such violation; 

17 (C) assisted or participated or is about to 

18 assist or participate in such a proceeding; 

19 (D) testified or is about to testify before 

20 Congress on any matter covered by such Act; 

21 (E) objected to, or refused to participate in 

22 any activity, policy, practice, or assigned task 

23 that the covered employee reasonably believed 

24 to be in violation of any provision of such Act, 


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1 or any order, rule, regulation, standard, or ban 

2 under such Act; 

3 (F) reported to the employer or a State or 

4 Federal Government official any of the fol5 lowing related to the employer’s activities de6 scribed in section 3(1): an illness, injury, unsafe 

7 condition, or information regarding the ade8 quacy of any oil spill response plan required by 

9 law; or 

10 (G) refused to perform the covered employ11 ee’s duties, or exercised stop work authority, re12 lated to the employer’s activities described in 

13 section 3(1) if the covered employee had a good 

14 faith belief that performing such duties could 

15 result in injury to or impairment of the health 

16 of the covered employee or other employees, or 

17 cause an oil spill to the environment. 

18 (2) GOOD FAITH BELIEF.—For purposes of 

19 paragraph (1)(E), the circumstances causing the 

20 covered employee’s good faith belief that performing 

21 such duties would pose a health and safety hazard 

22 shall be of such a nature that a reasonable person 

23 under circumstances confronting the covered em24 ployee would conclude there is such a hazard. 

25 (b) PROCESS.— 


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1 (1) IN GENERAL.—A covered employee who be2 lieves that he or she has been discharged or other3 wise discriminated against (hereafter referred to as 

4 the ‘‘complainant’’) by any employer in violation of 

5 subsection (a)(1) may, not later than 180 days after 

6 the date on which such alleged violation occurs or 

7 the date on which the covered employee knows or 

8 should reasonably have known that such alleged vio9 lation occurred, file (or have any person file on his 

10 or her behalf) a complaint with the Secretary of 

11 Labor (referred to in this section as the ‘‘Sec12 retary’’) alleging such discharge or discrimination 

13 and identifying employer or employers responsible 

14 for such act. Upon receipt of such a complaint, the 

15 Secretary shall notify, in writing, the employer or 

16 employers named in the complaint of the filing of 

17 the complaint, of the allegations contained in the 

18 complaint, of the substance of evidence supporting 

19 the complaint, and of the opportunities that will be 

20 afforded to such person under paragraph (2). 

21 (2) INVESTIGATION.— 

22 (A) IN GENERAL.—Not later than 90 days 

23 after the date of receipt of a complaint filed 

24 under paragraph (1) the Secretary shall initiate 

25 an investigation and determine whether there is 


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1 reasonable cause to believe that the complaint 

2 has merit and notify, in writing, the complain3 ant and the employer or employers alleged to 

4 have committed a violation of subsection (a)(1) 

5 of the Secretary’s findings. The Secretary shall, 

6 during such investigation afford the complain7 ant and the employer or employers named in 

8 the complaint an opportunity to submit to the 

9 Secretary a written response to the complaint 

10 and an opportunity to meet with a representa11 tive of the Secretary to present statements from 

12 witnesses. The complainant shall be provided 

13 with an opportunity to review the information 

14 and evidence provided by employer or employers 

15 to the Secretary, and to review any response or 

16 rebuttal by such the complaint, as part of such 

17 investigation. 

18 (B) REASONABLE CAUSE FOUND; PRELIMI19 NARY ORDER.—If the Secretary concludes that 

20 there is reasonable cause to believe that a viola21 tion of subsection (a)(1) has occurred, the Sec22 retary shall accompany the Secretary’s findings 

23 with a preliminary order providing the relief 

24 prescribed by paragraph (3)(B). Not later than 

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1 ings under this paragraph, the employer or em2 ployers alleged to have committed the violation 

3 or the complainant may file objections to the 

4 findings or preliminary order, or both, and re5 quest a hearing on the record before an admin6 istrative law judge of the Department of Labor. 

7 The filing of such objections shall not operate 

8 to stay any reinstatement remedy contained in 

9 the preliminary order. Any such hearing shall 

10 be conducted expeditiously. If a hearing is not 

11 requested in such 30-day period, the prelimi12 nary order shall be deemed a final order that is 

13 not subject to judicial review. The Secretary of 

14 Labor is authorized to enforce preliminary rein15 statement orders in the United States district 

16 court for the district in which the violation was 

17 found to occur, or in the United States district 

18 court for the District of Columbia. 

19 (C) DISMISSAL OF COMPLAINT.— 

20 (i) STANDARD FOR COMPLAINANT.— 

21 The Secretary shall dismiss a complaint 

22 filed under this subsection and shall not 

23 conduct an investigation otherwise required 

24 under subparagraph (A) unless the com25 plainant makes a prima facie showing that 


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1 any behavior described in subparagraphs 

2 (A) through (G) of subsection (a)(1) was a 

3 contributing factor in the adverse action 

4 alleged in the complaint. 

5 (ii) STANDARD FOR EMPLOYER.—Not6 withstanding a finding by the Secretary 

7 that the complainant has made the show8 ing required under clause (i), no investiga9 tion otherwise required under subpara10 graph (A) shall be conducted if the em11 ployer demonstrates, by clear and con12 vincing evidence, that the employer would 

13 have taken the same adverse action in the 

14 absence of that behavior. 

15 (iii) VIOLATION STANDARD.—The 

16 Secretary may determine that a violation 

17 of subsection (a)(1) has occurred only if 

18 the complainant demonstrates that any be19 havior described in subparagraphs (A) 

20 through (G) of such subsection was a con21 tributing factor in the adverse action al22 leged in the complaint. 

23 (iv) RELIEF STANDARD.—Relief may 

24 not be ordered under subparagraph (A) if 

25 the employer demonstrates by clear and 


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1 convincing evidence that the employer 

2 would have taken the same adverse action 

3 in the absence of that behavior. 

4 (3) ORDERS.— 

5 (A) IN GENERAL.—Not later than 90 days 

6 after the receipt of a request for a hearing 

7 under subsection (b)(2)(B), the administrative 

8 law judge shall issue findings of fact and order 

9 the relief provided under this paragraph or 

10 deny the complaint. At any time before issuance 

11 of an order, a proceeding under this subsection 

12 may be terminated on the basis of a settlement 

13 agreement entered into by the Secretary, the 

14 complainant, and the person alleged to have 

15 committed the violation. Such a settlement may 

16 not be agreed by such parties if it contains con17 ditions which conflict with rights protected 

18 under this Act, are contrary to public policy, or 

19 include a restriction on a complainant’s right to 

20 future employment with employers other than 

21 the specific employers named in the complaint. 

22 (B) CONTENT OF ORDER.—If, in response 

23 to a complaint filed under paragraph (1), the 

24 administrative law judge determines that a vio25 lation of subsection (a)(1) has occurred, the adVerDate Mar 15 2010 02:09 Apr 26, 2013 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1649.IH H1649

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1 ministrative law judge shall order the employer 

2 or employers who committed such violation to— 

3 (i) take affirmative action to abate the 

4 violation; 

5 (ii) reinstate the complainant to his or 

6 her former position together with com7 pensation (including back pay and prejudg8 ment interest) and restore the terms, con9 ditions, and privileges associated with his 

10 or her employment; 

11 (iii) expunge of all warnings, rep12 rimands, or derogatory references that 

13 have been placed in paper or electronic 

14 records or databases of any type relating 

15 to the actions by the complainant that 

16 gave rise to the unfavorable personnel ac17 tion, and, at the complainant’s direction, 

18 transmit a copy of the decision on the com19 plaint to any person whom the complainant 

20 reasonably believes may have received such 

21 unfavorable information; and 

22 (iv) provide compensatory and con23 sequential damages, and, as appropriate, 

24 exemplary damages to the complainant. 


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1 (C) ATTORNEY FEES.—If such an order is 

2 issued under this paragraph, the Secretary, at 

3 the request of the complainant, shall assess 

4 against the employer or employers a sum equal 

5 to the aggregate amount of all costs and ex6 penses (including attorneys’ and expert witness 

7 fees) reasonably incurred by the complainant 

8 for, or in connection with, the bringing of the 

9 complaint upon which the order was issued at 

10 the conclusion of any stage of the proceeding. 

11 (D) BAD FAITH CLAIM.—If the Secretary 

12 finds that a complaint under paragraph (1) is 

13 frivolous or has been brought in bad faith, the 

14 Secretary may award to the prevailing employer 

15 reasonable attorneys’ fees, not exceeding 

16 $1,000, to be paid by the complainant. 

17 (E) ADMINISTRATIVE APPEAL.—Not later 

18 than 30 days after the receipt of findings of 

19 fact or an order under subparagraph (B), the 

20 employer or employers alleged to have com21 mitted the violation or the complainant may 

22 file, with objections, an administrative appeal 

23 with the Secretary, who may designate such ap24 peal to a review board. In reviewing a decision 

25 and order of the administrative law judge, the 


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1 Secretary shall affirm the decision and order if 

2 it is determined that the factual findings set 

3 forth therein are supported by substantial evi4 dence and the decision and order are made in 

5 accordance with applicable law. The Secretary 

6 shall issue a final decision and order affirming, 

7 or reversing, in whole or in part, the decision 

8 under review within 90 days after receipt of the 

9 administrative appeal under this subparagraph. 

10 If it is determined that a violation of subsection 

11 (a)(1) has occurred, the Secretary shall order 

12 relief provided under subparagraphs (B) and 

13 (C). Such decision shall constitute a final agen14 cy action with respect to the matter appealed. 

15 (4) ACTION IN COURT.— 

16 (A) IN GENERAL.—If the Secretary has 

17 not issued a final decision within 330 days after 

18 the filing of the complaint, the complainant 

19 may bring an action at law or equity for de 

20 novo review in the appropriate district court of 

21 the United States, which action shall, at the re22 quest of either party to such action, be tried by 

23 the court with a jury. The proceedings shall be 

24 governed by the same legal burdens of proof 

25 specified in paragraph (2)(C). 


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1 (B) RELIEF.—The court may award all 

2 appropriate relief including injunctive relief, 

3 compensatory and consequential damages, in4 cluding— 

5 (i) reinstatement with the same se6 niority status that the covered employee 

7 would have had, but for the discharge or 

8 discrimination; 

9 (ii) the amount of back pay sufficient 

10 to make the covered employee whole, with 

11 prejudgment interest; 

12 (iii) expungement of all warnings, rep13 rimands, or derogatory references that 

14 have been placed in paper or electronic 

15 records or databases of any type relating 

16 to the actions by the complainant that 

17 gave rise to the unfavorable personnel ac18 tion, and, at the complainant’s direction, 

19 transmission of a copy of the decision on 

20 the complaint to any person whom the 

21 complainant reasonably believes may have 

22 received such unfavorable information; 

23 (iv) exemplary damages, as appro24 priate; and 


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1 (v) litigation costs, including reason2 able attorney fees and expert witness fees. 

3 (5) REVIEW.— 

4 (A) IN GENERAL.—Any person aggrieved 

5 by a final order issued under paragraph (3) or 

6 a judgment or order under paragraph (4) may 

7 obtain review of the order in the appropriate 

8 United States Court of Appeals. The petition 

9 for review must be filed not later than 60 days 

10 after the date of the issuance of the final order 

11 of the Secretary. Review shall be in accordance 

12 with chapter 7 of title 5, United States Code. 

13 The commencement of proceedings under this 

14 subparagraph shall not, unless ordered by the 

15 court, operate as a stay of the order. 

16 (B) NO OTHER JUDICIAL REVIEW.—An 

17 order of the Secretary with respect to which re18 view could have been obtained under subpara19 graph (A) shall not be subject to judicial review 

20 in any other proceeding. 

21 (6) FAILURE TO COMPLY WITH ORDER.—When22 ever any employer has failed to comply with an order 

23 issued under paragraph (3), the Secretary may ob24 tain in a civil action in the United States district 

25 court for the district in which the violation was 


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1 found to occur, or in the United States district court 

2 for the District of Columbia, all appropriate relief 

3 including, but not limited to, injunctive relief and 

4 compensatory damages. 

5 (7) CIVIL ACTION TO REQUIRE COMPLIANCE.— 

6 (A) IN GENERAL.—Whenever an employer 

7 has failed to comply with an order issued under 

8 paragraph (3), the complainant on whose behalf 

9 the order was issued may obtain in a civil ac10 tion in an appropriate United States district 

11 court against the employer to whom the order 

12 was issued, all appropriate relief. 

13 (B) AWARD.—The court, in issuing any 

14 final order under this paragraph, may award 

15 costs of litigation (including reasonable attor16 neys’ and expert witness fees) to any party 

17 whenever the court determines such award is 

18 appropriate. 

19 (c) CONSTRUCTION.— 

20 (1) EFFECT ON OTHER LAWS.—Nothing in this 

21 section preempts or diminishes any other safeguards 

22 against discrimination, demotion, discharge, suspen23 sion, threats, harassment, reprimand, retaliation, or 

24 any other manner of discrimination provided by Fed25 eral or State law. 


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1 (2) RIGHTS OF EMPLOYEES.—Nothing in this 

2 section shall be construed to diminish the rights, 

3 privileges, or remedies of any employee under any 

4 Federal or State law or under any collective bar5 gaining agreement. The rights and remedies in this 

6 section may not be waived by any agreement, policy, 

7 form, or condition of employment. 

8 (d) ENFORCEMENT OF NONDISCRETIONARY DU9 TIES.—Any nondiscretionary duty imposed by this section 

10 shall be enforceable in a mandamus proceeding brought 

11 under section 1361 of title 28, United States Code. 

12 (e) POSTING OF NOTICE AND TRAINING.—All em13 ployers shall post a notice which has been approved as to 

14 form and content by the Secretary of Labor in a con15 spicuous location in the place of employment where cov16 ered employees frequent which explains employee rights 

17 and remedies under this section. Each employer shall pro18 vide training to covered employees of their rights under 

19 this section within 30 days of employment, and at not less 

20 than once every 12 months thereafter, and provide covered 

21 employees with a card which contains a toll free telephone 

22 number at the Department of Labor which covered em23 ployees can call to get information or file a complaint 

24 under this section. 


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1 (f) DESIGNATION BY THE SECRETARY.—The Sec2 retary of Labor shall, within 30 days of the date of enact3 ment of this Act, designate by order the appropriate agen4 cy officials to receive, investigate, and adjudicate com5 plaints of violations of subsection (a)(1). 

6 SEC. 3. DEFINITIONS. 

7 As used in this Act the following definitions apply: 

8 (1) The term ‘‘covered employee’’— 

9 (A) means an individual performing serv10 ices on behalf of an employer that is engaged 

11 in activities on or in waters above the Outer 

12 Continental Shelf related to— 

13 (i) supporting, or carrying out explo14 ration, development, production, proc15 essing, or transportation of oil or gas; or 

16 (ii) oil spill cleanup, emergency re17 sponse, environmental surveillance, protec18 tion, or restoration, or other oil spill activi19 ties related to occupational safety and 

20 health; and 

21 (B) includes an applicant for such employ22 ment. 

23 (2) The term ‘‘employer’’ means one or more 

24 individuals, partnerships, associations, corporations, 

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1 mental organizations, or trustees, and includes any 

2 agent, contractor, subcontractor, grantee or consult3 ant of such employer. 

4 (3) The term ‘‘Outer Continental Shelf’’ has 

5 the meaning that the term ‘‘outer Continental Shelf’’ 

6 has in the Outer Continental Shelf Lands Act (43 

7 U.S.C. 1331 et seq.). 

Æ 


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