II

106TH CONGRESS

1ST SESSION S. 652

To amend the Occupational Safety and Health Act of 1970 to protect employees against reprisals from employers based on certain employee conduct

concerning safe and healthy working conditions.

IN THE SENATE OF THE UNITED STATES

MARCH 17, 1999

Mr. WELLSTON (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 protect employees against reprisals from employers

based on certain employee conduct concerning safe and

healthy working conditions.

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 ‘‘Safety and Health

5 Whistleblower Protection Act’’.

6 SEC. 2. EMPLOYEE ACTIONS.

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

8 Health Act of 1970 (29 U.S.C. 660(c)(1)) is amended by
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1 inserting before the period the following: ‘‘including re2 porting any injury, illness or unsafe condition’’.

3 SEC. 3. PROHIBITION OF DISCRIMINATION.

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

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

6 paragraph (2) and inserting the following:

7 ‘‘(2) No person shall discharge or in any manner dis8 criminate against an employee for refusing to perform the

9 employee’s duties when the employee has a reasonable ap10 prehension that performing such duties would result in se11 rious injury or serious impairment of health to the em12 ployee or other employees. The circumstances causing the

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

14 a nature that a reasonable person would conclude that

15 there is a danger of serious injury or serious impairment

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

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

18 to the employer the danger perceived.’’.

19 SEC. 4. PROCEDURE.

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

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

22 paragraph (3) and inserting the following:

23 ‘‘(3) Any employee who believes that he or she has

24 been discharged, disciplined, or otherwise discriminated

25 against in violation of paragraph (1) or (2) may, within
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1 180 days after the date on which such alleged violation

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

3 behalf) a complaint with the Secretary alleging such dis4 charge, discipline, or discrimination. Upon receipt of such

5 a complaint, the Secretary shall notify the person named

6 in the complaint of the filing of the complaint.

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

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

9 investigation and determine whether there is reasonable

10 cause to believe that the complaint has merit and shall

11 notify the complainant and the person alleged to have

12 committed the violation of paragraph (1) or (2) of the Sec13 retary’s findings. Where the Secretary has determined

14 that there is reasonable cause to believe that a violation

15 has occurred, the Secretary’s findings shall be accom16 panied by a preliminary order providing the relief pre17 scribed by subparagraph (E).

18 ‘‘(B)(i) After a preliminary order is issued under sub19 paragraph (A), the person alleged to have committed the

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

21 file objections to the findings or preliminary order, or

22 both, and request a hearing on the record, except that the

23 filing of such objections shall not operate to stay any rein24 statement remedy contained in the preliminary order; and
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1 ‘‘(ii) If a hearing described in clause (i) is not re2 quested in a timely manner as provided for under such

3 clause, the preliminary order involved shall be deemed a

4 final order and not be subject to judicial review.

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

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

7 such subparagraph, and the employee or representative of

8 the employee files a request for a hearing with the Sec9 retary, the Secretary shall afford an opportunity for a

10 hearing on the record.

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

12 shall be conducted by an administrative law judge and a

13 recommended decision and order issued expeditiously. The

14 legal burdens of proof that prevail under section 1221 of

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

16 violations under this subsection. The Secretary shall issue

17 a final order within 120 days of the issuance of the rec18 ommended decision. In the interim, such proceedings may

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

20 agreement entered into by the Secretary, the complainant,

21 and the person alleged to have committed the violation.

22 ‘‘(E) If, in response to a complaint filed under para23 graph (3), the Secretary determines that a violation of

24 paragraph (1) or (2) has occurred, the Secretary shall

25 order as appropriate—
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1 ‘‘(i) the person who committed such violation to

2 correct the violation;

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

4 the complainant’s former position together with the

5 compensation (including back pay), terms, condi6 tions, and privileges of the position;

7 ‘‘(iii) compensatory damages; and

8 ‘‘(iv) exemplary damages.

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

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

11 equal to the aggregate amount of all costs and expenses

12 (including attorney’s fees and expert witness fees) reason13 ably incurred, as determined by the Secretary, by the com14 plainant for, or in connection with, the bringing of the

15 complaint upon which the order was issued, including

16 costs and expenses incurred upon review before a court

17 of appeals.

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

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

20 apply.

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

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

23 review of the order before the United States court of ap24 peals for the circuit in which the violation, with respect

25 to which the order was issued, occurred, or the circuit in
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1 which such person resided on the date of such violation.

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

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

4 review shall be in accordance with the provisions of chap5 ter 7 of title 5, United States Code. An order of the Sec6 retary subject to review under this subsection is not sub7 ject to judicial review in a criminal or other civil pro8 ceeding. The commencement of proceedings under this

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

10 as a stay of the order of the Secretary.

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

12 order or an order of reinstatement issued under paragraph

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

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

15 States district court for the district in which the violation

16 was found to occur in order to enforce such order. In ac17 tions brought under this subparagraph, the district court

18 shall have jurisdiction to grant additional appropriate re19 lief in light of the noncompliance.’’.

20 SEC. 5. RELATION TO ENFORCEMENT.

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

22 Act of 1970 (29 U.S.C. 666(j)) is amended by inserting

23 before the period the following: ‘‘, including the history

24 of violation under section 11(c)’’.
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1 SEC. 6. EFFECTIVE DATE.

2 The amendments made by this Act shall take effect

3 90 days after the date of enactment of this Act.

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