II

106TH CONGRESS

1ST SESSION S. 653

To amend the Occupational Safety and Health Act of 1970 to further protect

the safety and health of employees.

IN THE SENATE OF THE UNITED STATES

MARCH 17, 1999

Mr. WELLSTONE (for himself and Mr. KENNEDY) introduced the following

bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

A BILL

To amend the Occupational Safety and Health Act of 1970

to further protect the safety and health of employees.

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 ‘‘Safer Workplaces

5 Act’’.

6 TITLE I—PROTECTING

7 EMPLOYEES FROM REPRISALS

8 SEC. 101. SHORT TITLE.

9 This title may be cited as the ‘‘Safety and Health

10 Whistleblower Protection Act’’.
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1 SEC. 102. EMPLOYEE ACTIONS.

2 Section 11(c)(1) of the Occupational Safety and

3 Health Act of 1970 (29 U.S.C. 660(c)(1)) is amended by

4 inserting before the period the following: ‘‘including re5 porting any injury, illness or unsafe condition’’.

6 SEC. 103. PROHIBITION OF DISCRIMINATION.

7 Section 11(c) of the Occupational Safety and Health

8 Act of 1970 (29 U.S.C. 660(c)) is amended by striking

9 paragraph (2) and inserting the following:

10 ‘‘(2) No person shall discharge or in any manner dis11 criminate against an employee for refusing to perform the

12 employee’s duties when the employee has a reasonable ap13 prehension that performing such duties would result in se14 rious injury or serious impairment of health to the em15 ployee or other employees. The circumstances causing the

16 employee’s apprehension of serious injury must be of such

17 a nature that a reasonable person would conclude that

18 there is a danger of serious injury or serious impairment

19 of health. This paragraph shall only apply to an employee

20 to the extent that the employee, if possible, communicated

21 to the employer the danger perceived.’’.

22 SEC. 104. PROCEDURE.

23 Section 11(c) of the Occupational Safety and Health

24 Act of 1970 (29 U.S.C. 660(c)) is amended by striking

25 paragraph (3) and inserting the following:
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1 ‘‘(3) Any employee who believes that he or she has

2 been discharged, disciplined, or otherwise discriminated

3 against in violation of paragraph (1) or (2) may, within

4 180 days after the date on which such alleged violation

5 occurs, file (or have filed by any person on the employee’s

6 behalf) a complaint with the Secretary alleging such dis7 charge, discipline, or discrimination. Upon receipt of such

8 a complaint, the Secretary shall notify the person named

9 in the complaint of the filing of the complaint.

10 ‘‘(4)(A) Within 90 days of the receipt of a complaint

11 filed under paragraph (3), the Secretary shall conduct an

12 investigation and determine whether there is reasonable

13 cause to believe that the complaint has merit and shall

14 notify the complainant and the person alleged to have

15 committed the violation of paragraph (1) or (2) of the Sec16 retary’s findings. Where the Secretary has determined

17 that there is reasonable cause to believe that a violation

18 has occurred, the Secretary’s findings shall be accom19 panied by a preliminary order providing the relief pre20 scribed by subparagraph (E).

21 ‘‘(B)(i) After a preliminary order is issued under sub22 paragraph (A), the person alleged to have committed the

23 violation involved or the complainant may, within 30 days,

24 file objections to the findings or preliminary order, or

25 both, and request a hearing on the record, except that the
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1 filing of such objections shall not operate to stay any rein2 statement remedy contained in the preliminary order; and

3 ‘‘(ii) If a hearing described in clause (i) is not re4 quested in a timely manner as provided for under such

5 clause, the preliminary order involved shall be deemed a

6 final order and not be subject to judicial review.

7 ‘‘(C) If the Secretary has not issued findings under

8 subparagraph (A) within the 90-day period described in

9 such subparagraph, and the employee or representative of

10 the employee files a request for a hearing with the Sec11 retary, the Secretary shall afford an opportunity for a

12 hearing on the record.

13 ‘‘(D) If requested under subparagraph (C), a hearing

14 shall be conducted by an administrative law judge and a

15 recommended decision and order issued expeditiously. The

16 legal burdens of proof that prevail under section 1221 of

17 title 5, United States Code, shall govern adjudication of

18 violations under this subsection. The Secretary shall issue

19 a final order within 120 days of the issuance of the rec20 ommended decision. In the interim, such proceedings may

21 be terminated at any time on the basis of a settlement

22 agreement entered into by the Secretary, the complainant,

23 and the person alleged to have committed the violation.

24 ‘‘(E) If, in response to a complaint filed under para25 graph (3), the Secretary determines that a violation of
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1 paragraph (1) or (2) has occurred, the Secretary shall

2 order as appropriate—

3 ‘‘(i) the person who committed such violation to

4 correct the violation;

5 ‘‘(ii) the person to reinstate the complainant to

6 the complainant’s former position together with the

7 compensation (including back pay), terms, condi8 tions, and privileges of the position;

9 ‘‘(iii) compensatory damages; and

10 ‘‘(iv) exemplary damages.

11 Upon issuance of such an order, the Secretary may assess

12 against the person against whom the order is issued a sum

13 equal to the aggregate amount of all costs and expenses

14 (including attorney’s fees and expert witness fees) reason15 ably incurred, as determined by the Secretary, by the com16 plainant for, or in connection with, the bringing of the

17 complaint upon which the order was issued, including

18 costs and expenses incurred upon review before a court

19 of appeals.

20 ‘‘(F) In conducting an investigation or adjudication

21 under this paragraph, the provisions of section 8(b) shall

22 apply.

23 ‘‘(5)(A) Any person adversely affected or aggrieved

24 by a final order issued under paragraph (4)(D) may obtain

25 review of the order before the United States court of ap-
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1 peals for the circuit in which the violation, with respect

2 to which the order was issued, occurred, or the circuit in

3 which such person resided on the date of such violation.

4 The petition for review must be filed within 60 days from

5 the date on which the Secretary’s order was issued. Such

6 review shall be in accordance with the provisions of chap7 ter 7 of title 5, United States Code. An order of the Sec8 retary subject to review under this subsection is not sub9 ject to judicial review in a criminal or other civil pro10 ceeding. The commencement of proceedings under this

11 subsection shall not, unless ordered by the court, operate

12 as a stay of the order of the Secretary.

13 ‘‘(B) When a person has failed to comply with a final

14 order or an order of reinstatement issued under paragraph

15 (4), the Secretary or the person on behalf of whom the

16 order was issued may file a civil action in the United

17 States district court for the district in which the violation

18 was found to occur in order to enforce such order. In ac19 tions brought under this subparagraph, the district court

20 shall have jurisdiction to grant additional appropriate re21 lief in light of the noncompliance.’’.

22 SEC. 105. RELATION TO ENFORCEMENT.

23 Section 17(j) of the Occupational Safety and Health

24 Act of 1970 (29 U.S.C. 666(j)) is amended by inserting
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1 before the period the following: ‘‘, including the history

2 of violation under section 11(c)’’.

3 SEC. 106. EFFECTIVE DATE.

4 The amendments made by this title shall take effect

5 90 days after the date of enactment of this Act.

6 TITLE II—MISCELLANEOUS

7 AMENDMENTS

8 SEC. 201. COVERAGE OF FEDERAL, STATE AND POLITICAL

9 SUBDIVISION EMPLOYEES.

10 Section 3(5) of the Occupational Safety and Health

11 Act of 1970 (29 U.S.C. 652(5)) is amended to read as

12 follows:

13 ‘‘(5) The term ‘employer’ means a person en14 gaged in a business affecting commerce who has em15 ployees, including the United States and the United

16 States Postal Service and any State or political sub17 division of a State.’’.

18 SEC. 202. OSHA CRIMINAL PENALTIES.

19 Section 17 of the Occupational Safety and Health Act

20 of 1970 (29 U.S.C. 666) is amended—

21 (1) in subsection (e)—

22 (A) by striking ‘‘fine of not more than

23 $10,000’’ and inserting ‘‘fine in accordance

24 with section 3571 of title 18, United States

25 Code,’’;
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1 (B) by striking ‘‘six months’’ and inserting

2 ‘‘10 years’’;

3 (C) by striking ‘‘fine of not more than

4 $20,000’’ and inserting ‘‘fine in accordance

5 with section 3571 of title 18, United States

6 Code,’’;

7 (D) by striking ‘‘one year’’ and inserting

8 ‘‘20 years’’; and

9 (E) by inserting ‘‘under this subsection or

10 subsection (i)’’ after ‘‘first conviction of such

11 person’’;

12 (2) in subsection (f), by striking ‘‘fine of not

13 more than $1,000 or by imprisonment for not more

14 than six months,’’ and inserting ‘‘fine in accordance

15 with section 3571 of title 18, United States Code, or

16 by imprisonment for not more than 2 years,’’; and

17 (3) in subsection (g), by striking ‘‘fine of not

18 more than $10,000, or by imprisonment for not

19 more than six months,’’ and inserting ‘‘fine in ac20 cordance with section 3571 of title 18, United States

21 Code, or by imprisonment for not more than 1

22 year,’’.

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