I 

115TH CONGRESS 

1ST SESSION H. R. 4304 

To provide whistleblower protections to certain workers in the offshore oil 

and gas industry. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 8, 2017 

Mr. DESAULNIER (for himself, Mr. CARBAJAL, Mr. HUFFMAN, and Mr. 

SCOTT of Virginia) 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 2017’’. 

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). 


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1 (C) RIGHT OF PARTIES TO APPEAL.—Not 

2 later than 30 days after the date of notification 

3 of findings under this paragraph, the employer 

4 or employers alleged to have committed the vio5 lation or the complainant may file objections to 

6 the findings or preliminary order, or both, in7 cluding the dismissal of the complaint, in whole 

8 or in part, and request a hearing on the record 

9 before an administrative law judge of the De10 partment of Labor. Any such hearing shall be 

11 conducted expeditiously. If a hearing is not re12 quested in such 30-day period, the preliminary 

13 order shall be deemed a final order that is not 

14 subject to judicial review. The filing of such ob15 jections shall not operate to stay any reinstate16 ment remedy contained in the preliminary order 

17 issued under subparagraph (B). The Secretary 

18 of Labor is authorized to enforce preliminary 

19 reinstatement orders in the United States dis20 trict court for the district in which the violation 

21 was found to occur, or in the United States dis22 trict court for the District of Columbia. 

23 (D) DISMISSAL OF COMPLAINT.— 

24 (i) STANDARD FOR COMPLAINANT.— 

25 The Secretary shall dismiss a complaint 


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1 filed under this subsection and shall not 

2 conduct an investigation otherwise required 

3 under subparagraph (A) unless the com4 plainant makes a prima facie showing that 

5 any behavior described in subparagraphs 

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

7 contributing factor in the adverse action 

8 alleged in the complaint. 

9 (ii) STANDARD FOR EMPLOYER.—Not10 withstanding a finding by the Secretary 

11 that the complainant has made the show12 ing required under clause (i), no investiga13 tion otherwise required under subpara14 graph (A) shall be conducted if the em15 ployer demonstrates, by clear and con16 vincing evidence, that the employer would 

17 have taken the same adverse action in the 

18 absence of that behavior. 

19 (iii) VIOLATION STANDARD.—The 

20 Secretary may determine that a violation 

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

22 the complainant demonstrates that any be23 havior described in subparagraphs (A) 

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1 tributing factor in the adverse action al2 leged in the complaint. 

3 (iv) RELIEF STANDARD.—Relief may 

4 not be ordered under subparagraph (A) if 

5 the employer demonstrates by clear and 

6 convincing evidence that the employer 

7 would have taken the same adverse action 

8 in the absence of that behavior. 

9 (3) ORDERS.— 

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

11 after the receipt of a request for a hearing 

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

13 law judge shall issue findings of fact and order 

14 the relief provided under this paragraph or 

15 deny the complaint. At any time before issuance 

16 of an order, a proceeding under this subsection 

17 may be terminated on the basis of a settlement 

18 agreement entered into by the Secretary, the 

19 complainant, and the person alleged to have 

20 committed the violation. Such a settlement may 

21 not be agreed by such parties if it contains con22 ditions which conflict with rights protected 

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

24 include a restriction on a complainant’s right to 


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1 future employment with employers other than 

2 the specific employers named in the complaint. 

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

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

5 administrative law judge determines that a vio6 lation of subsection (a)(1) has occurred, the ad7 ministrative law judge shall order the employer 

8 or employers who committed such violation to— 

9 (i) take affirmative action to abate the 

10 violation; 

11 (ii) reinstate the complainant to his or 

12 her former position together with com13 pensation (including back pay and prejudg14 ment interest) and restore the terms, con15 ditions, and privileges associated with his 

16 or her employment; 

17 (iii) expunge of all warnings, rep18 rimands, or derogatory references that 

19 have been placed in paper or electronic 

20 records or databases of any type relating 

21 to the actions by the complainant that 

22 gave rise to the unfavorable personnel ac23 tion, and, at the complainant’s direction, 

24 transmit a copy of the decision on the com25 plaint to any person whom the complainant 


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1 reasonably believes may have received such 

2 unfavorable information; and 

3 (iv) provide compensatory and con4 sequential damages, and, as appropriate, 

5 exemplary damages to the complainant. 

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

7 issued under this paragraph, the Secretary, at 

8 the request of the complainant, shall assess 

9 against the employer or employers a sum equal 

10 to the aggregate amount of all costs and ex11 penses (including attorneys’ and expert witness 

12 fees) reasonably incurred by the complainant 

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

14 complaint upon which the order was issued at 

15 the conclusion of any stage of the proceeding. 

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

17 finds that a complaint under paragraph (1) is 

18 frivolous or has been brought in bad faith, the 

19 Secretary may award to the prevailing employer 

20 reasonable attorneys’ fees, not exceeding 

21 $1,000, to be paid by the complainant. 

22 (E) ADMINISTRATIVE APPEAL.—Not later 

23 than 30 days after the receipt of findings of 

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

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1 mitted the violation or the complainant may 

2 file, with objections, an administrative appeal 

3 with the Secretary, who may designate such ap4 peal to a review board. In reviewing a decision 

5 and order of the administrative law judge, the 

6 Secretary shall affirm the decision and order if 

7 it is determined that the factual findings set 

8 forth therein are supported by substantial evi9 dence and the decision and order are made in 

10 accordance with applicable law. The Secretary 

11 shall issue a final decision and order affirming, 

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

13 under review within 90 days after receipt of the 

14 administrative appeal under this subparagraph. 

15 If it is determined that a violation of subsection 

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

17 relief provided under subparagraphs (B) and 

18 (C). Such decision shall constitute a final agen19 cy action with respect to the matter appealed. 

20 (4) ACTION IN COURT.— 

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

22 not issued a final decision within 330 days after 

23 the filing of the complaint, the complainant 

24 may bring an action at law or equity for de 

25 novo review in the appropriate district court of 


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1 the United States, which action shall, at the re2 quest of either party to such action, be tried by 

3 the court with a jury. The proceedings shall be 

4 governed by the same legal burdens of proof 

5 specified in paragraph (2)(C). 

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

7 appropriate relief including injunctive relief, 

8 compensatory and consequential damages, in9 cluding— 

10 (i) reinstatement with the same se11 niority status that the covered employee 

12 would have had, but for the discharge or 

13 discrimination; 

14 (ii) the amount of back pay sufficient 

15 to make the covered employee whole, with 

16 prejudgment interest; 

17 (iii) expungement of all warnings, rep18 rimands, or derogatory references that 

19 have been placed in paper or electronic 

20 records or databases of any type relating 

21 to the actions by the complainant that 

22 gave rise to the unfavorable personnel ac23 tion, and, at the complainant’s direction, 

24 transmission of a copy of the decision on 

25 the complaint to any person whom the 


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1 complainant reasonably believes may have 

2 received such unfavorable information; 

3 (iv) exemplary damages, as appro4 priate; and 

5 (v) litigation costs, including reason6 able attorney fees and expert witness fees. 

7 (5) REVIEW.— 

8 (A) IN GENERAL.—Any person aggrieved 

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

10 a judgment or order under paragraph (4) may 

11 obtain review of the order in the appropriate 

12 United States Court of Appeals. The petition 

13 for review must be filed not later than 60 days 

14 after the date of the issuance of the final order 

15 of the Secretary. Review shall be in accordance 

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

17 The commencement of proceedings under this 

18 subparagraph shall not, unless ordered by the 

19 court, operate as a stay of the order. 

20 (B) NO OTHER JUDICIAL REVIEW.—An 

21 order of the Secretary with respect to which re22 view could have been obtained under subpara23 graph (A) shall not be subject to judicial review 

24 in any other proceeding. 


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1 (6) FAILURE TO COMPLY WITH ORDER.—When2 ever any employer has failed to comply with an order 

3 issued under paragraph (3), the Secretary may ob4 tain in a civil action in the United States district 

5 court for the district in which the violation was 

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

7 for the District of Columbia, all appropriate relief 

8 including, but not limited to, injunctive relief and 

9 compensatory damages. 

10 (7) CIVIL ACTION TO REQUIRE COMPLIANCE.— 

11 (A) IN GENERAL.—Whenever an employer 

12 has failed to comply with an order issued under 

13 paragraph (3), the complainant on whose behalf 

14 the order was issued may obtain in a civil ac15 tion in an appropriate United States district 

16 court against the employer to whom the order 

17 was issued, all appropriate relief. 

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

19 final order under this paragraph, may award 

20 costs of litigation (including reasonable attor21 neys’ and expert witness fees) to any party 

22 whenever the court determines such award is 

23 appropriate. 

24 (c) CONSTRUCTION.— 


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

2 section preempts or diminishes any other safeguards 

3 against discrimination, demotion, discharge, suspen4 sion, threats, harassment, reprimand, retaliation, or 

5 any other manner of discrimination provided by Fed6 eral or State law. 

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

8 section shall be construed to diminish the rights, 

9 privileges, or remedies of any employee under any 

10 Federal or State law or under any collective bar11 gaining agreement. The rights and remedies in this 

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

13 form, or condition of employment. 

14 (d) ENFORCEMENT OF NONDISCRETIONARY DU15 TIES.—Any nondiscretionary duty imposed by this section 

16 shall be enforceable in a mandamus proceeding brought 

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

18 (e) POSTING OF NOTICE AND TRAINING.—All em19 ployers shall post a notice which has been approved as to 

20 form and content by the Secretary of Labor in a con21 spicuous location in the place of employment where cov22 ered employees frequent which explains employee rights 

23 and remedies under this section. Each employer shall pro24 vide training to covered employees of their rights under 

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


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1 than once every 12 months thereafter, and provide covered 

2 employees with a card which contains a toll free telephone 

3 number at the Department of Labor which covered em4 ployees can call to get information or file a complaint 

5 under this section. 

6 (f) DESIGNATION BY THE SECRETARY.—The Sec7 retary of Labor shall, within 30 days of the date of enact8 ment of this Act, designate by order the appropriate agen9 cy officials to receive, investigate, and adjudicate com10 plaints of violations of subsection (a)(1). 

11 SEC. 3. DEFINITIONS. 

12 As used in this Act, the following definitions apply: 

13 (1) The term ‘‘covered employee’’— 

14 (A) means an individual performing serv15 ices on behalf of an employer that is engaged 

16 in activities on or in waters above the Outer 

17 Continental Shelf related to— 

18 (i) supporting, or carrying out explo19 ration, development, production, proc20 essing, or transportation of oil or gas; or 

21 (ii) oil spill cleanup, emergency re22 sponse, environmental surveillance, protec23 tion, or restoration, or other oil spill activi24 ties related to occupational safety and 

25 health; and 


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1 (B) includes an applicant for such employ2 ment. 

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

4 individuals, partnerships, associations, corporations, 

5 trusts, unincorporated organizations, nongovern6 mental organizations, or trustees, and includes any 

7 agent, contractor, subcontractor, grantee or consult8 ant of such employer. 

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

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

11 has in the Outer Continental Shelf Lands Act (43 

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

Æ 


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