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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 241 Reported in Senate (RS)]

                                                       Calendar No. 569
112th CONGRESS
  2d Session
                                 S. 241

  To expand whistleblower protections to non-Federal employees whose 
              disclosures involve misuse of Federal funds.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 31, 2011

 Mrs. McCaskill (for herself, Mr. Webb, and Mr. Tester) introduced the 
 following bill; which was read twice and referred to the Committee on 
               Homeland Security and Governmental Affairs

                           December 19, 2012

              Reported by Mr. Lieberman, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL

 
  To expand whistleblower protections to non-Federal employees whose 
              disclosures involve misuse of Federal funds.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Non-Federal Employee 
Whistleblower Protection Act of 2011''.</DELETED>

<DELETED>SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR 
              WHISTLEBLOWERS.</DELETED>

<DELETED>    (a) Repeal.--Section 4705 of title 41, United States Code, 
is hereby repealed.</DELETED>
<DELETED>    (b) Enhanced Protection for State and Local Government and 
Contractor Whistleblowers.--Chapter 47 of division C of title 41, 
United States Code, is amended by inserting after section 4704 the 
following new section:</DELETED>
<DELETED>``Sec. 4705. Whistleblower protection for State and local 
              government and contractor whistleblowers</DELETED>
<DELETED>    ``(a) Prohibition of Reprisals.--An employee of any non-
Federal employer receiving covered funds may not be discharged, 
demoted, or otherwise discriminated against as a reprisal for 
initiating or participating in any proceeding related to the misuse of 
any Federal funds, reasonably opposing the misuse of any Federal funds, 
or disclosing, including a disclosure made in the ordinary course of an 
employee's duties, to an inspector general, the Comptroller General of 
the United States, the Attorney General, a member of Congress, a State 
or Federal regulatory or law enforcement agency, a person with 
supervisory authority over the employee (or such other person working 
for the employer who has the authority to investigate, discover, or 
terminate misconduct), a court or grand jury, the head of a Federal 
agency, or their representatives information that the employee 
reasonably believes is evidence of--</DELETED>
        <DELETED>    ``(1) gross mismanagement of an agency contract or 
        grant relating to covered funds;</DELETED>
        <DELETED>    ``(2) a gross waste of covered funds;</DELETED>
        <DELETED>    ``(3) a substantial and specific danger to public 
        health or safety related to the implementation or use of 
        covered funds;</DELETED>
        <DELETED>    ``(4) an abuse of authority related to the 
        implementation or use of covered funds; or</DELETED>
        <DELETED>    ``(5) a violation of law, rule, or regulation 
        related to an agency contract (including the competition for or 
        negotiation of a contract), subcontract, or grant, awarded or 
        issued relating to covered funds.</DELETED>
<DELETED>    ``(b) Investigation of Complaints.--</DELETED>
        <DELETED>    ``(1) In general.--A person who believes that the 
        person has been subjected to a reprisal prohibited by 
        subsection (a) may submit a complaint regarding the reprisal to 
        the appropriate inspector general. Except as provided under 
        paragraph (3), unless the inspector general determines that the 
        complaint 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 
        inspector general shall investigate the complaint and, upon 
        completion of such investigation, submit a report of the 
        findings of the investigation to the person, the person's 
        employer, and the head of the appropriate agency.</DELETED>
        <DELETED>    ``(2) Time limitations for actions.--</DELETED>
                <DELETED>    ``(A) In general.--Except as provided 
                under subparagraph (B), the inspector general shall, 
                not later than 180 days after receiving a complaint 
                under paragraph (1)--</DELETED>
                        <DELETED>    ``(i) make a determination that 
                        the complaint 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; or</DELETED>
                        <DELETED>    ``(ii) submit a report under 
                        paragraph (1).</DELETED>
                <DELETED>    ``(B) Extensions.--</DELETED>
                        <DELETED>    ``(i) Voluntary extension agreed 
                        to between inspector general and complainant.--
                        If the inspector general is unable to complete 
                        an investigation under this section in time to 
                        submit a report within the 180-day period 
                        specified under subparagraph (A) and the person 
                        submitting the complaint agrees to an extension 
                        of time, the inspector general shall submit a 
                        report under paragraph (1) within such 
                        additional period of time as shall be agreed 
                        upon between the inspector general and the 
                        person submitting the complaint.</DELETED>
                        <DELETED>    ``(ii) Extension granted by 
                        inspector general.--If the inspector general is 
                        unable to complete an investigation under this 
                        section in time to submit a report within the 
                        180-day period specified under subparagraph 
                        (A), the inspector general may extend the 
                        period for not more than 180 days without 
                        agreeing with the person submitting the 
                        complaint to such extension, provided that the 
                        inspector general provides a written 
                        explanation (subject to the authority to 
                        exclude information under paragraph (4)(C)) for 
                        the decision, which shall be provided to both 
                        the person submitting the complaint and the 
                        non-Federal employer.</DELETED>
                        <DELETED>    ``(iii) Semi-annual report on 
                        extensions.--The inspector general shall 
                        include in semi-annual reports to Congress a 
                        list of those investigations for which the 
                        inspector general received an 
                        extension.</DELETED>
        <DELETED>    ``(3) Discretion not to investigate complaints.--
        </DELETED>
                <DELETED>    ``(A) In general.--The inspector general 
                may decide not to conduct or continue an investigation 
                under this section upon providing to the person 
                submitting the complaint and the non-Federal employer a 
                written explanation (subject to the authority to 
                exclude information under paragraph (4)(C)) for such 
                decision.</DELETED>
                <DELETED>    ``(B) Assumption of rights to civil 
                remedy.--Upon receipt of an explanation of a decision 
                not to conduct or continue an investigation under 
                subparagraph (A), the person submitting a complaint 
                shall immediately assume the right to a civil remedy 
                under subsection (c)(3) as if the 210-day period 
                specified under such subsection has already 
                passed.</DELETED>
                <DELETED>    ``(C) Semi-annual report.--The inspector 
                general shall include in semi-annual reports to 
                Congress a list of those investigations the inspector 
                general decided not to conduct or continue under this 
                paragraph.</DELETED>
        <DELETED>    ``(4) Access to investigative file of inspector 
        general.--</DELETED>
                <DELETED>    ``(A) In general.--The person alleging a 
                reprisal under this section shall have access to the 
                investigation file of the appropriate inspector general 
                in accordance with section 552a of title 5 (commonly 
                referred to as the `Privacy Act'). The investigation of 
                the inspector general shall be deemed closed for 
                purposes of disclosure under such section when an 
                employee files an appeal to an agency head or a court 
                of competent jurisdiction.</DELETED>
                <DELETED>    ``(B) Civil action.--In the event the 
                person alleging the reprisal brings suit under 
                subsection (c)(3), the person alleging the reprisal and 
                the non-Federal employer shall have access to the 
                investigative file of the inspector general in 
                accordance with the Privacy Act.</DELETED>
                <DELETED>    ``(C) Exception.--</DELETED>
                        <DELETED>    ``(i) In general.--The inspector 
                        general may exclude from disclosure--</DELETED>
                                <DELETED>    ``(I) information 
                                protected from disclosure by a 
                                provision of law; and</DELETED>
                                <DELETED>    ``(II) any additional 
                                information the inspector general 
                                determines disclosure of which would 
                                impede a continuing investigation, 
                                provided that such information is 
                                disclosed once such disclosure would no 
                                longer impede such investigation, 
                                unless the inspector general 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.</DELETED>
                        <DELETED>    ``(ii) Limitation.--
                        Notwithstanding clause (i)(II), the inspector 
                        general may not withhold information from the 
                        employee which would otherwise be subject to 
                        disclosure under section 552 of title 5 
                        (commonly referred to as the Freedom of 
                        Information Act) or the Privacy Act.</DELETED>
        <DELETED>    ``(5) Privacy of information.--An inspector 
        general investigating an alleged reprisal under this section 
        may not respond to any inquiry or disclose any information from 
        or about any person alleging such reprisal, except in 
        accordance with the provisions of section 552a of title 5 or as 
        required by any other applicable Federal law.</DELETED>
<DELETED>    ``(c) Remedy and Enforcement Authority.--</DELETED>
        <DELETED>    ``(1) Burden of proof.--</DELETED>
                <DELETED>    ``(A) Disclosure as contributing factor in 
                reprisal.--</DELETED>
                        <DELETED>    ``(i) In general.--A person 
                        alleging a reprisal under this section shall be 
                        deemed to have affirmatively established the 
                        occurrence of the reprisal if the person 
                        demonstrates that a disclosure described in 
                        subsection (a) was a contributing factor in the 
                        reprisal.</DELETED>
                        <DELETED>    ``(ii) Use of circumstantial 
                        evidence.--A disclosure may be demonstrated as 
                        a contributing factor in a reprisal for 
                        purposes of this paragraph by circumstantial 
                        evidence, including--</DELETED>
                                <DELETED>    ``(I) evidence that the 
                                official undertaking the reprisal knew 
                                of the disclosure;</DELETED>
                                <DELETED>    ``(II) evidence that the 
                                reprisal occurred within a period of 
                                time after the disclosure such that a 
                                reasonable person could conclude that 
                                the disclosure was a contributing 
                                factor in the reprisal; or</DELETED>
                                <DELETED>    ``(III) evidence that the 
                                protected disclosure was well founded 
                                in fact or law.</DELETED>
                <DELETED>    ``(B) Opportunity for rebuttal.--The head 
                of an agency may not find the occurrence of a reprisal 
                with respect to a reprisal that is affirmatively 
                established under subparagraph (A) if the non-Federal 
                employer demonstrates by clear and convincing evidence 
                that the non-Federal employer would have taken the 
                action constituting the reprisal in the absence of the 
                disclosure. An employee may rebut this affirmative 
                defense by direct or circumstantial evidence, including 
                the evidence described in subparagraph (A).</DELETED>
        <DELETED>    ``(2) Agency action.--Not later than 30 days after 
        receiving an inspector general report under subsection (b), the 
        head of the agency concerned 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 shall either issue an order denying relief 
        in whole or in part or shall take 1 or more of the following 
        actions:</DELETED>
                <DELETED>    ``(A) Order the employer to take 
                affirmative action to abate the reprisal.</DELETED>
                <DELETED>    ``(B) Order the employer to reinstate the 
                person to the position that the person held before the 
                reprisal, together with the compensation (including 
                back pay), compensatory damages, employment benefits, 
                and other terms and conditions of employment that would 
                apply to the person in that position if the reprisal 
                had not been taken.</DELETED>
                <DELETED>    ``(C) Order the employer to pay the 
                complainant an amount equal to the aggregate amount of 
                all costs and expenses (including attorneys' fees and 
                expert witnesses' fees) that were reasonably incurred 
                by the complainant 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.</DELETED>
                <DELETED>    ``(D) Where appropriate, order the posting 
                of the decision of the inspector general in a manner in 
                which every employee of the employer will have notice 
                of the decision and otherwise require a reasonable 
                compliance program to ensure that no further 
                retaliation is committed by the employer.</DELETED>
                <DELETED>    ``(E) In the case of a finding that the 
                reprisal was willful, wanton, or malicious, pay the 
                employee no more then 10 times the amount of all lost 
                wages and other compensatory damages.</DELETED>
        <DELETED>    ``(3) Civil action.--If the head of an agency 
        issues an order denying relief in whole or in part under 
        paragraph (1), 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 subsection (b)(2)(B)(i), 
        within 30 days after the expiration of the extension of time, 
        or 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 complainant, 
        the complainant shall be deemed to have exhausted all 
        administrative remedies with respect to the complaint, and the 
        complainant may bring a de novo action at law or equity against 
        the employer to seek compensatory damages and all 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. Such an 
        action shall, at the request of either party to the action, be 
        tried by the court with a jury.</DELETED>
        <DELETED>    ``(4) Judicial enforcement of order.--Whenever a 
        person fails to comply with an order issued under paragraph 
        (2), 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 attorneys' fees and 
        costs. The person upon whose behalf an order was issued may 
        also file such an action or join in an action filed by the head 
        of the agency.</DELETED>
        <DELETED>    ``(5) Judicial review.--Any person adversely 
        affected or aggrieved by an order issued under paragraph (2) 
        may obtain review of the order's conformance 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 
        shall conform to chapter 7 of title 5. Filing such an appeal 
        shall not act to stay the enforcement of the order of a head of 
        an agency or the judgment of a district court.</DELETED>
        <DELETED>    ``(6) Exhaustion of administrative remedies.--
        Regardless of any other time limit set forth in this section, 
        after 360 days an employee shall be deemed to have exhausted 
        his or her administrative remedies and may file a civil action 
        or amend a claim under this section to any other pending civil 
        action filed by the employee.</DELETED>
<DELETED>    ``(d) Nonenforceability of Certain Provisions Waiving 
Rights and Remedies or Requiring Arbitration of Disputes.--</DELETED>
        <DELETED>    ``(1) Waiver of rights and remedies.--Except as 
        provided under paragraph (3), 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 predispute 
        arbitration agreement.</DELETED>
        <DELETED>    ``(2) Predispute arbitration agreements.--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.</DELETED>
        <DELETED>    ``(3) Exception for collective bargaining 
        agreements.--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.</DELETED>
<DELETED>    ``(e) Requirement To Post Notice of Rights and Remedies.--
Any employer receiving covered funds shall post notice of the rights 
and remedies provided under this section.</DELETED>
<DELETED>    ``(f) Rules of Construction.--</DELETED>
        <DELETED>    ``(1) No implied authority to retaliate for non-
        protected disclosures.--Nothing in this section may be 
        construed to authorize the discharge of, demotion of, or 
        discrimination against an employee 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.</DELETED>
        <DELETED>    ``(2) Relationship to state laws.--Nothing in this 
        section may be construed to preempt, preclude, or limit the 
        protections provided for public or private employees under 
        State whistleblower laws.</DELETED>
<DELETED>    ``(g) Definitions.--In this section:</DELETED>
        <DELETED>    ``(1) Abuse of authority.--The term `abuse of 
        authority' means an arbitrary and capricious exercise of 
        authority by a contracting official or employee that adversely 
        affects the rights of any person, or that results in personal 
        gain or advantage to the official or employee or to preferred 
        other persons.</DELETED>
        <DELETED>    ``(2) Covered funds.--The term `covered funds' 
        means any contract, grant, or other payment received by any 
        non-Federal employer if the Federal Government provides any 
        portion of the money or property that is provided, requested, 
        or demanded.</DELETED>
        <DELETED>    ``(3) Employee.--The term `employee'--</DELETED>
                <DELETED>    ``(A) except as provided under 
                subparagraph (B), means an individual performing 
                services on behalf of an employer or a contractor, 
                subcontractor, or agent of an employer; and</DELETED>
                <DELETED>    ``(B) does not include any Federal 
                employee or member of the uniformed services (as that 
                term is defined in section 101(a)(5) of title 
                10).</DELETED>
        <DELETED>    ``(4) Non-federal employer.--The term `non-Federal 
        employer'--</DELETED>
                <DELETED>    ``(A) means--</DELETED>
                        <DELETED>    ``(i) any employer--</DELETED>
                                <DELETED>    ``(I) with respect to 
                                covered funds--</DELETED>
                                        <DELETED>    ``(aa) the 
                                        contractor, subcontractor, 
                                        grantee, or recipient, as the 
                                        case may be, if the contractor, 
                                        grantee, or recipient is an 
                                        employer; and</DELETED>
                                        <DELETED>    ``(bb) any 
                                        professional membership 
                                        organization, certification or 
                                        other professional body, any 
                                        agent or licensee of the 
                                        Federal government, or any 
                                        person acting directly or 
                                        indirectly in the interest of 
                                        an employer receiving covered 
                                        funds; or</DELETED>
                                <DELETED>    ``(II) with respect to 
                                covered funds received by a State or 
                                local government, the State or local 
                                government receiving the funds and any 
                                contractor or subcontractor of the 
                                State or local government; 
                                and</DELETED>
                        <DELETED>    ``(ii) any corporation or person 
                        who receives any Federal funds; and</DELETED>
                <DELETED>    ``(B) does not mean any department, 
                agency, or other entity of the Federal 
                Government.</DELETED>
        <DELETED>    ``(5) State or local government.--The term `State 
        or local government' means--</DELETED>
                <DELETED>    ``(A) the government of each of the 
                several States, the District of Columbia, the 
                Commonwealth of Puerto Rico, Guam, American Samoa, the 
                Virgin Islands, the Commonwealth of the Northern 
                Mariana Islands, or any other territory or possession 
                of the United States; or</DELETED>
                <DELETED>    ``(B) the government of any political 
                subdivision of a government listed in subparagraph 
                (A).''.</DELETED>
<DELETED>    (c) Applicability.--</DELETED>
        <DELETED>    (1) Pending claims.--Section 4705 of title 41, 
        United States Code, as added by subsection (b), shall apply to 
        complaints submitted pursuant to such section on or after the 
        date of the enactment of this Act.</DELETED>
        <DELETED>    (2) New claims.--Section 4705 of title 41, United 
        States Code, as in effect on the day before the date of the 
        enactment of this Act shall apply to claims submitted pursuant 
        to such section before such date of enactment.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Non-Federal Employee Whistleblower 
Protection Act of 2012''.

SEC. 2. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR 
              WHISTLEBLOWERS.

    (a) Repeals.--
            (1) Civilian contracts.--Title 41, United States Code, is 
        amended as follows:
                    (A) Section 4705 is repealed.
                    (B) The table of sections at the beginning of 
                chapter 47 is amended by striking the item relating to 
                section 4705.
            (2) Defense contracts.--Title 10, United States Code, is 
        amended as follows:
                    (A) Section 2409 is repealed.
                    (B) The table of sections at the beginning of 
                chapter 141 is amended by striking the item relating to 
                section 2409.
    (b) Enhanced Protection for State and Local Government and 
Contractor Whistleblowers.--
            (1) In general.--Chapter 23 of division B of title 41, 
        United States Code, is amended by adding at the end the 
        following new section:
``Sec. 2314. Protection for State and local government and contractor 
              whistleblowers
    ``(a) Prohibition of Reprisals.--An employee of any non-Federal 
employer receiving covered funds may not be discharged, demoted, or 
otherwise discriminated against as a reprisal for initiating or 
participating in any proceeding related to the misuse of any Federal 
funds, reasonably opposing the misuse of any Federal funds, or 
disclosing, including a disclosure made in the ordinary course of an 
employee's duties, to an inspector general, the Comptroller General of 
the United States, the Attorney General, a member of Congress, a State 
or Federal regulatory or law enforcement agency, a person with 
supervisory authority over the employee (or such other person working 
for the employer who has the authority to investigate, discover, or 
terminate misconduct), a court or grand jury, the head of a Federal 
agency, or their representatives information that the employee 
reasonably believes is evidence of--
            ``(1) gross mismanagement of an agency contract or grant 
        relating to covered funds;
            ``(2) a gross waste of covered funds;
            ``(3) a substantial and specific danger to public health or 
        safety related to the implementation or use of covered funds;
            ``(4) an abuse of authority related to the implementation 
        or use of covered funds; or
            ``(5) a violation of law, rule, or regulation related to an 
        agency contract (including the competition for or negotiation 
        of a contract), subcontract, or grant, awarded or issued 
        relating to covered funds.
    ``(b) Investigation of Complaints by Inspector General.--
            ``(1) In general.--A person who believes that the person 
        has been subjected to a reprisal prohibited by subsection (a) 
        may submit a complaint regarding the reprisal to the 
        appropriate inspector general. Except as provided under 
        paragraph (3), unless the inspector general determines that the 
        complaint 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 
        inspector general shall investigate the complaint and, upon 
        completion of such investigation, submit a report of the 
        findings of the investigation to the person, the person's 
        employer, and the head of the appropriate agency.
            ``(2) Time limitations for actions in response to 
        complaints.--
                    ``(A) In general.--Except as provided under 
                subparagraph (B), the inspector general shall, not 
                later than 180 days after receiving a complaint under 
                paragraph (1)--
                            ``(i) make a determination that the 
                        complaint 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; or
                            ``(ii) submit a report under paragraph (1).
                    ``(B) Extensions.--
                            ``(i) Voluntary extension agreed to between 
                        inspector general and complainant.--If the 
                        inspector general is unable to complete an 
                        investigation under this section in time to 
                        submit a report within the 180-day period 
                        specified under subparagraph (A) and the person 
                        submitting the complaint agrees to an extension 
                        of time, the inspector general shall submit a 
                        report under paragraph (1) within such 
                        additional period of time, up to 180 days, as 
                        shall be agreed upon between the inspector 
                        general and the person submitting the 
                        complaint.
                            ``(ii) Extension granted by inspector 
                        general.--If the inspector general is unable to 
                        complete an investigation under this section in 
                        time to submit a report within the 180-day 
                        period specified under subparagraph (A), the 
                        inspector general may extend the period for not 
                        more than 90 days without agreeing with the 
                        person submitting the complaint to such 
                        extension, provided that the inspector general 
                        provides to the person submitting the complaint 
                        a written explanation (subject to the authority 
                        to exclude information under paragraph (4)(C)) 
                        for the decision.
                            ``(iii) Semi-annual report on extensions.--
                        The inspector general shall include in semi-
                        annual reports to Congress a list of those 
                        investigations for which the inspector general 
                        received an extension.
            ``(3) Discretion not to investigate complaints.--
                    ``(A) In general.--The inspector general may decide 
                not to conduct or continue an investigation under this 
                section upon providing to the person submitting the 
                complaint a written explanation (subject to the 
                authority to exclude information under paragraph 
                (4)(C)) for such decision.
                    ``(B) Semi-annual report.--The inspector general 
                shall include in semi-annual reports to Congress a list 
                of those investigations the inspector general decided 
                not to conduct or continue under this paragraph.
            ``(4) Access to investigative file.--
                    ``(A) In general.--The person alleging a reprisal 
                under this section shall have access to the 
                investigation file of the appropriate inspector general 
                in accordance with section 552a of title 5 (commonly 
                referred to as the `Privacy Act'). The investigation of 
                the inspector general shall be deemed closed for 
                purposes of disclosure under such section when an 
                employee files an appeal to an agency head or a court 
                of competent jurisdiction.
                    ``(B) Civil action.--In the event the person 
                alleging the reprisal brings suit under subsection 
                (d)(1), the person alleging the reprisal and the non-
                Federal employer shall have access to the investigative 
                file of the inspector general in accordance with the 
                Privacy Act.
                    ``(C) Exception.--
                            ``(i) In general.--The inspector general 
                        may exclude from disclosure--
                                    ``(I) information protected from 
                                disclosure by a provision of law; and
                                    ``(II) any additional information 
                                the inspector general determines 
                                disclosure of which would impede a 
                                continuing investigation, provided that 
                                such information is disclosed once such 
                                disclosure would no longer impede such 
                                investigation, unless the inspector 
                                general 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.
                            ``(ii) Limitation.--Notwithstanding clause 
                        (i)(II), the inspector general may not withhold 
                        information from the employee which would 
                        otherwise be subject to disclosure under 
                        section 552 of title 5 (commonly referred to as 
                        the Freedom of Information Act) or the Privacy 
                        Act.
            ``(5) Privacy of information.--An inspector general 
        investigating an alleged reprisal under this section may not 
        respond to any inquiry or disclose any information from or 
        about any person alleging such reprisal, except in accordance 
        with the provisions of section 552a of title 5 or as required 
        by any other applicable Federal law.
            ``(6) Limitation on submitting complaint.--A complaint 
        under this subsection may not be brought more than 3 years 
        after the date on which the alleged reprisal prohibited under 
        subsection (a) occurred.
    ``(c) Administrative Remedy and Enforcement Authority.--
            ``(1) Agency action.--Not later than 30 days after 
        receiving an inspector general report under subsection (b), the 
        head of the agency concerned shall determine whether there is 
        sufficient basis to conclude that the non-Federal employer has, 
        directly, or indirectly on behalf of the Federal agency 
        providing the employer covered funds, subjected the complainant 
        to a reprisal prohibited by subsection (a) and shall either 
        issue an order denying relief in whole or in part or shall take 
        1 or more of the following actions:
                    ``(A) Order the employer to take affirmative action 
                to abate the reprisal.
                    ``(B) Order the employer to reinstate the person to 
                the position that the person held before the reprisal, 
                together with the compensation (including back pay), 
                compensatory damages, employment benefits, and other 
                terms and conditions of employment that would apply to 
                the person in that position if the reprisal had not 
                been taken.
                    ``(C) Order the employer to pay the complainant an 
                amount equal to the aggregate amount of all costs and 
                expenses (including attorneys' fees and expert 
                witnesses' fees) that were reasonably incurred by the 
                complainant 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.
                    ``(D) Where appropriate, order the posting of the 
                decision of the inspector general in a manner in which 
                every employee of the employer will have notice of the 
                decision and otherwise require a reasonable compliance 
                program to ensure that no further retaliation is 
                committed by the employer.
                    ``(E) In the case of a finding that the reprisal 
                was willful, wanton, or malicious, order the employer 
                to pay the employee no more than 10 times the amount of 
                all lost wages and other compensatory damages.
            ``(2) Burden of proof.--
                    ``(A) Disclosure as contributing factor in 
                reprisal.--
                            ``(i) In general.--A person alleging a 
                        reprisal under this section shall be deemed to 
                        have affirmatively established the occurrence 
                        of the reprisal if the person demonstrates that 
                        a disclosure described in subsection (a) was a 
                        contributing factor in the reprisal.
                            ``(ii) Use of circumstantial evidence.--A 
                        disclosure may be demonstrated as a 
                        contributing factor in a reprisal for purposes 
                        of this paragraph by circumstantial evidence, 
                        including--
                                    ``(I) evidence that the official 
                                undertaking the reprisal knew of the 
                                disclosure;
                                    ``(II) evidence that the reprisal 
                                occurred within a period of time after 
                                the disclosure such that a reasonable 
                                person could conclude that the 
                                disclosure was a contributing factor in 
                                the reprisal; or
                                    ``(III) evidence that the protected 
                                disclosure was well founded in fact or 
                                law.
                    ``(B) Opportunity for rebuttal.--The head of an 
                agency may not find the occurrence of a reprisal with 
                respect to a reprisal that is affirmatively established 
                under subparagraph (A) if the non-Federal employer 
                demonstrates by clear and convincing evidence that the 
                non-Federal employer would have taken the action 
                constituting the reprisal in the absence of the 
                disclosure. An employee may rebut this affirmative 
                defense by direct or circumstantial evidence, including 
                the evidence described in subparagraph (A).
            ``(3) Judicial enforcement of order.--Whenever a person 
        fails to comply with an order issued under paragraph (1), 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 attorneys' fees and costs. The person upon whose 
        behalf an order was issued may also file such an action or join 
        in an action filed by the head of the agency.
    ``(d) Civil Action and Judicial Review.--
            ``(1) Civil action.--A person who has submitted a complaint 
        under subsection (b) shall be deemed to have exhausted all 
        administrative remedies with respect to the complaint and may 
        bring a de novo action at law or equity against the employer to 
        seek compensatory damages and all 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, if--
                    ``(A)(i) the head of an agency--
                            ``(I) issues an order denying relief in 
                        whole or in part under subsection (c)(1); or
                            ``(II) has not issued an order--
                                    ``(aa) within 210 days after the 
                                submission of a complaint under 
                                subsection (b); or
                                    ``(bb) in the case of an extension 
                                of time under subsection (b)(2)(B), 
                                within 30 days after the expiration of 
                                the extension of time; or
                    ``(ii) the inspector general decides under 
                subsection (b)(3) not to investigate or to discontinue 
                an investigation; and
                    ``(B) there is no showing that such delay or 
                decision is due to the bad faith of the complainant.
            ``(2) Trial by jury.--An action brought under paragraph (1) 
        shall, at the request of either party to the action, be tried 
        by the court with a jury.
            ``(3) Limitation on bringing civil action.--An action 
        brought under paragraph (1) may not be brought more than 2 
        years after the date on which remedies are deemed exhausted 
        under subparagraph (A) of such paragraph.
            ``(4) Judicial review.--Any person adversely affected or 
        aggrieved by an order issued under subsection (c)(1) may obtain 
        review of the order's conformance 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 shall conform to 
        chapter 7 of title 5. Filing such an appeal shall not act to 
        stay the enforcement of the order of a head of an agency or the 
        judgment of a district court.
    ``(e) Nonenforceability of Certain Provisions Waiving Rights and 
Remedies or Requiring Arbitration of Disputes.--
            ``(1) Waiver of rights and remedies.--Except as provided 
        under paragraph (3), 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 predispute 
        arbitration agreement.
            ``(2) Predispute arbitration agreements.--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.
            ``(3) Exception for collective bargaining agreements.--
        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.
    ``(f) Requirement To Notify Employees of Rights and Remedies.--Any 
non-Federal employer receiving covered funds shall notify all employees 
of the rights and remedies provided under this section in the 
predominant native language of the workforce.
    ``(g) Rules of Construction.--
            ``(1) No implied authority to retaliate for non-protected 
        disclosures.--Nothing in this section may be construed to 
        authorize the discharge of, demotion of, or discrimination 
        against an employee 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.
            ``(2) Relationship to state laws.--Nothing in this section 
        may be construed to preempt, preclude, or limit the protections 
        provided for public or private employees under State 
        whistleblower laws.
    ``(h) Definitions.--In this section:
            ``(1) Abuse of authority.--The term `abuse of authority' 
        means an arbitrary and capricious exercise of authority that 
        adversely affects the rights of any person, or that results in 
        personal gain or advantage to the official or employee or to 
        preferred other persons.
            ``(2) Covered funds.--The term `covered funds' means any 
        contract, grant, or other payment received by any non-Federal 
        employer if the Federal Government provides any portion of the 
        money or property that is provided, requested, or demanded.
            ``(3) Employee.--The term `employee'--
                    ``(A) except as provided under subparagraph (B), 
                means an individual performing services on behalf of an 
                employer or a contractor, subcontractor, or agent of an 
                employer; and
                    ``(B) does not include any Federal employee or 
                member of the uniformed services (as that term is 
                defined in section 101(a)(5) of title 10).
            ``(4) Non-federal employer.--The term `non-Federal 
        employer'--
                    ``(A) means--
                            ``(i) any employer--
                                    ``(I) with respect to covered 
                                funds--
                                            ``(aa) the contractor, 
                                        subcontractor, grantee, or 
                                        recipient, as the case may be, 
                                        if the contractor, grantee, or 
                                        recipient is an employer; and
                                            ``(bb) any professional 
                                        membership organization, 
                                        certification or other 
                                        professional body, any agent or 
                                        licensee of the Federal 
                                        government, or any person 
                                        acting directly or indirectly 
                                        in the interest of an employer 
                                        receiving covered funds; or
                                    ``(II) with respect to covered 
                                funds received by a State or local 
                                government, the State or local 
                                government receiving the funds and any 
                                contractor or subcontractor of the 
                                State or local government; and
                            ``(ii) any corporation or person who 
                        receives any Federal funds; and
                    ``(B) does not mean any department, agency, or 
                other entity of the Federal Government.
            ``(5) State or local government.--The term `State or local 
        government' means--
                    ``(A) the government of each of the several States, 
                the District of Columbia, the Commonwealth of Puerto 
                Rico, Guam, American Samoa, the Virgin Islands, the 
                Commonwealth of the Northern Mariana Islands, or any 
                other territory or possession of the United States; or
                    ``(B) the government of any political subdivision 
                of a government listed in subparagraph (A).''.
            (2) Conforming amendment.--The table of sections at the 
        beginning of chapter 23 of title 41, United States Code, is 
        amended by inserting after the item relating to section 2313 
        the following new item:

``2314. Protection for State and local government and contractor 
                            whistleblowers.''.
    (c) Applicability.--
            (1) Reprisals after date of enactment.--Section 2314 of 
        title 41, United States Code, as added by subsection (b), shall 
        apply to alleged reprisals described under subsection (a) of 
        such section that occur on or after the date of the enactment 
        of this Act, regardless of the date on which the contract, 
        grant, cooperative agreement, or other arrangement involving 
        covered funds is entered into.
            (2) Reprisals before date of enactment.--
                    (A) Civilian contracts.--Section 4705 of title 41, 
                United States Code, as in effect on the day before the 
                date of the enactment of this Act, shall apply to 
                alleged reprisals described under such section that 
                occurred on or after the date of the enactment of such 
                section and before the date of the enactment of this 
                Act, regardless of the date on which the contract, 
                grant, cooperative agreement, or other arrangement 
                involving covered funds was entered into.
                    (B) Defense contracts.--Section 2409 of title 10, 
                United States Code, as in effect on the day before the 
                date of the enactment of this Act, shall apply to 
                alleged reprisals described under such section that 
                occurred on or after the date of the enactment of such 
                section and before the date of the enactment of this 
                Act, regardless of the date on which the contract, 
                grant, cooperative agreement, or other arrangement 
                involving covered funds was entered into.
    (d) Regulations.--
            (1) Limited allowability of legal fees as costs under 
        contracts.--Not later than 180 days after the date of the 
        enactment of this Act, the Federal Acquisition Regulatory 
        Council shall amend the Federal Acquisition Regulation to 
        provide that legal fees and other expenses related to a claim 
        arising under a whistleblower protection law are not allowable 
        costs under a contract unless and until the contractor has been 
        found in an administrative or judicial proceeding not to be 
        liable for such claim.
            (2) Notification of employees of rights and remedies.--Not 
        later than 180 days after the date of the enactment of this 
        Act, the Federal Acquisition Regulatory Council shall amend the 
        Federal Acquisition Regulation to require inclusion of a 
        contract clause notifying contractors of the requirement under 
        section 2314(f) of title 41, United States Code, as added by 
        subsection (b)(1), for non-Federal employers to notify 
        employees of their rights and remedies under such section.
                                                       Calendar No. 569

112th CONGRESS

  2d Session

                                 S. 241

_______________________________________________________________________

                                 A BILL

  To expand whistleblower protections to non-Federal employees whose 
              disclosures involve misuse of Federal funds.

_______________________________________________________________________

                           December 19, 2012

                       Reported with an amendment
```