I 

111TH CONGRESS 

2D SESSION H. R. 5749 

To provide whistleblower and other protections to certain offshore workers, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 15, 2010 

Mr. GEORGE MILLER of California (for himself and Ms. WOOLSEY) introduced 

the following bill; which was referred to the Committee on Education and 

Labor, and in addition to the Committee on Natural Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To provide whistleblower and other protections to certain 

offshore workers, and for other purposes. 

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 Worker Whis5 tleblower Protection Act’’. 

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

8 (a) PROHIBITION AGAINST RETALIATION.— 


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

2 or otherwise discriminate against a covered employee 

3 because the covered employee, whether at the cov4 ered employee’s initiative or in the ordinary course 

5 of the covered employee’s duties— 

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

7 about to provide or cause to be provided to the 

8 employer, the Federal Government, or the at9 torney general of a State information relating 

10 to any violation of, or any act or omission the 

11 covered employee reasonably believes to be a 

12 violation of any provision of the Outer Conti13 nental Shelf Lands Act (43 U.S.C. 1301 et 

14 seq.), or any order, rule, regulation, standard, 

15 or prohibition under that Act; 

16 (B) testified or is about to testify in a pro17 ceeding concerning such violation; 

18 (C) assisted or participated or is about to 

19 assist or participate in such a proceeding; 

20 (D) testified or is about to testify before 

21 Congress on any matter covered by such Act; 

22 (E) refused to perform the covered employ23 ee’s duties if the covered employee had a good 

24 faith belief that performing such duties would 


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1 result in injury to or impairment of the health 

2 of the covered employee or other employees; or 

3 (F) objected to, or refused to participate in 

4 any activity, policy, practice, or assigned task 

5 that the covered employee reasonably believed 

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

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

8 under such Act. 

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

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

11 covered employee’s good faith belief that performing 

12 such duties would pose a health and safety hazard 

13 shall be of such a nature that a reasonable person 

14 under circumstances confronting the covered em15 ployee would conclude there is such a hazard. 

16 (b) PROCESS.— 

17 (1) IN GENERAL.—A covered employee who be18 lieves that he or she has been discharged or other19 wise discriminated against (hereafter referred to as 

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

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

22 the date on which such alleged violation occurs or 

23 the date on which the covered employee knows or 

24 should reasonably have known that such alleged vio25 lation occurred, file (or have any person file on his 


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1 or her behalf) a complaint with the Secretary of 

2 Labor (referred to in this section as the ‘‘Sec3 retary’’) alleging such discharge or discrimination 

4 and identifying employer or employers responsible 

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

6 Secretary shall notify, in writing, the employer or 

7 employers named in the complaint of the filing of 

8 the complaint, of the allegations contained in the 

9 complaint, of the substance of evidence supporting 

10 the complaint, and of the opportunities that will be 

11 afforded to such person under paragraph (2). 

12 (2) INVESTIGATION.— 

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

14 after the date of receipt of a complaint filed 

15 under paragraph (1) the Secretary shall initiate 

16 an investigation and determine whether there is 

17 reasonable cause to believe that the complaint 

18 has merit and notify, in writing, the complain19 ant and the employer or employers alleged to 

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

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

22 during such investigation afford the complain23 ant and the employer or employers named in 

24 the complaint an opportunity to submit to the 

25 Secretary a written response to the complaint 


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1 and an opportunity to meet with a representa2 tive of the Secretary to present statements from 

3 witnesses. The complainant shall be provided 

4 with an opportunity to review the information 

5 and evidence provided by employer or employers 

6 to the Secretary, and to review any response or 

7 rebuttal by such the complaint, as part of such 

8 investigation. 

9 (B) REASONABLE CAUSE FOUND; PRELIMI10 NARY ORDER.—If the Secretary concludes that 

11 there is reasonable cause to believe that a viola12 tion of subsection (a)(1) has occurred, the Sec13 retary shall accompany the Secretary’s findings 

14 with a preliminary order providing the relief 

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

16 30 days after the date of notification of find17 ings under this paragraph, the employer or em18 ployers alleged to have committed the violation 

19 or the complainant may file objections to the 

20 findings or preliminary order, or both, and re21 quest a hearing on the record before an admin22 istrative law judge of the Department of Labor. 

23 The filing of such objections shall not operate 

24 to stay any reinstatement remedy contained in 

25 the preliminary order. Any such hearing shall 


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1 be conducted expeditiously. If a hearing is not 

2 requested in such 30-day period, the prelimi3 nary order shall be deemed a final order that is 

4 not subject to judicial review. The Secretary of 

5 Labor is authorized to enforce preliminary rein6 statement orders in the United States district 

7 court for the district in which the violation was 

8 found to occur, or in the United States district 

9 court for the District of Columbia. 

10 (C) DISMISSAL OF COMPLAINT.— 

11 (i) STANDARD FOR COMPLAINANT.— 

12 The Secretary shall dismiss a complaint 

13 filed under this subsection and shall not 

14 conduct an investigation otherwise required 

15 under subparagraph (A) unless the com16 plainant makes a prima facie showing that 

17 any behavior described in subparagraphs 

18 (A) through (F) of subsection (a)(1) was a 

19 contributing factor in the adverse action 

20 alleged in the complaint. 

21 (ii) STANDARD FOR EMPLOYER.—Not22 withstanding a finding by the Secretary 

23 that the complainant has made the show24 ing required under clause (i), no investiga25 tion otherwise required under subparaVerDate Mar 15 2010 01:59 Jul 17, 2010 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5749.IH H5749

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1 graph (A) shall be conducted if the em2 ployer demonstrates, by clear and con3 vincing evidence, that the employer would 

4 have taken the same adverse action in the 

5 absence of that behavior. 

6 (iii) VIOLATION STANDARD.—The 

7 Secretary may determine that a violation 

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

9 the complainant demonstrates that any be10 havior described in subparagraphs (A) 

11 through (F) of such subsection was a con12 tributing factor in the adverse action al13 leged in the complaint. 

14 (iv) RELIEF STANDARD.—Relief may 

15 not be ordered under subparagraph (A) if 

16 the employer demonstrates by clear and 

17 convincing evidence that the employer 

18 would have taken the same adverse action 

19 in the absence of that behavior. 

20 (3) ORDERS.— 

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

22 after the receipt of a request for a hearing 

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

24 law judge shall issue findings of fact and order 

25 the relief provided under this paragraph or 


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1 deny the complaint. At any time before issuance 

2 of an order, a proceeding under this subsection 

3 may be terminated on the basis of a settlement 

4 agreement entered into by the Secretary, the 

5 complainant, and the person alleged to have 

6 committed the violation. Such a settlement may 

7 not be agreed by such parties if it contains con8 ditions which conflict with rights protected 

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

10 include a restriction on a complainant’s right to 

11 future employment with employers other than 

12 the specific employers named in the complaint. 

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

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

15 administrative law judge determines that a vio16 lation of subsection (a)(1) has occurred, the ad17 ministrative law judge shall order the employer 

18 or employers who committed such violation— 

19 (i) to take affirmative action to abate 

20 the violation; 

21 (ii) to reinstate the complainant to his 

22 or her former position together with com23 pensation (including back pay and prejudg24 ment interest) and restore the terms, conVerDate Mar 15 2010 01:59 Jul 17, 2010 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5749.IH H5749

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1 ditions, and privileges associated with his 

2 or her employment; and 

3 (iii) to 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 a 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 

25 employer or employers alleged to have comVerDate Mar 15 2010 01:59 Jul 17, 2010 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5749.IH H5749

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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 300 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 with jurisdiction, which shall 

2 have jurisdiction over such an action without 

3 regard to the amount in controversy, and which 

4 action shall, at the request of either party to 

5 such action, be tried by the court with a jury. 

6 The proceedings shall be governed by the same 

7 legal burdens of proof specified in paragraph 

8 (2)(C). 

9 (B) RELIEF.—The court shall have juris10 diction to grant all appropriate relief including 

11 injunctive relief, compensatory and consequen12 tial damages, including— 

13 (i) reinstatement with the same se14 niority status that the covered employee 

15 would have had, but for the discharge or 

16 discrimination; 

17 (ii) the amount of back pay sufficient 

18 to make the covered employee whole, with 

19 prejudgment interest; 

20 (iii) exemplary damages, as appro21 priate; and 

22 (iv) reasonable attorney fees, includ23 ing litigation costs, and expert witness 

24 fees. 

25 (5) REVIEW.— 


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1 (A) IN GENERAL.—Any person adversely 

2 affected or aggrieved by a final order issued 

3 under paragraph (3) or a judgment or order 

4 under paragraph (4) may obtain review of the 

5 order in the United States Court of Appeals for 

6 the circuit in which the violation, with respect 

7 to which the order was issued, allegedly oc8 curred or the circuit in which the complainant 

9 resided on the date of such violation. The peti10 tion for review must be filed not later than 60 

11 days after the date of the issuance of the final 

12 order of the Secretary. Review shall conform to 

13 chapter 7 of title 5, United States Code. The 

14 commencement of proceedings under this sub15 paragraph shall not, unless ordered by the 

16 court, operate as a stay of the order. 

17 (B) NO OTHER JUDICIAL REVIEW.—An 

18 order of the Secretary with respect to which re19 view could have been obtained under subpara20 graph (A) shall not be subject to judicial review 

21 in any criminal or other civil proceeding. 

22 (6) FAILURE TO COMPLY WITH ORDER.—When23 ever any employer has failed to comply with an order 

24 issued under paragraph (3), the Secretary may file 

25 a civil action in the United States district court for 


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1 the district in which the violation was found to 

2 occur, or in the United States district court for the 

3 District of Columbia, to enforce such order. In ac4 tions brought under this paragraph, the district 

5 courts shall have jurisdiction to grant all appropriate 

6 relief including, but not limited to, injunctive relief 

7 and compensatory damages. 

8 (7) CIVIL ACTION TO REQUIRE COMPLIANCE.— 

9 (A) IN GENERAL.—A person on whose be10 half an order was issued under paragraph (3) 

11 may commence a civil action against the em12 ployer to whom such order was issued to re13 quire compliance with such order. The appro14 priate United States district court shall have 

15 jurisdiction, without regard to the amount in 

16 controversy or the citizenship of the parties, to 

17 enforce such order. In cases where the Sec18 retary and the complainant file civil action to 

19 require compliance, the action of the Secretary 

20 shall take precedence. 

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

22 final order under this paragraph, may award 

23 costs of litigation (including reasonable attor24 neys’ and expert witness fees) to any party 


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1 whenever the court determines such award is 

2 appropriate. 

3 (c) CONSTRUCTION.— 

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

5 section preempts or diminishes any other safeguards 

6 against discrimination, demotion, discharge, suspen7 sion, threats, harassment, reprimand, retaliation, or 

8 any other manner of discrimination provided by Fed9 eral or State law. 

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

11 section shall be construed to diminish the rights, 

12 privileges, or remedies of any employee under any 

13 Federal or State law or under any collective bar14 gaining agreement. The rights and remedies in this 

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

16 form, or condition of employment. 

17 (d) ENFORCEMENT OF NONDISCRETIONARY DU18 TIES.—Any nondiscretionary duty imposed by this section 

19 shall be enforceable in a mandamus proceeding brought 

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

21 (e) POSTING OF NOTICE AND TRAINING.—All em22 ployers shall post a notice which has been approved as to 

23 form and content by the Secretary of Labor in a con24 spicuous location in the place of employment where cov25 ered employees frequent which explains employee rights 


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1 and remedies under this section. Each employer shall pro2 vide training to covered employees of their rights under 

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

4 than once every 12 months thereafter, and provide covered 

5 employees with a card which contains a toll free telephone 

6 number at the Department of Labor which covered em7 ployees can call to get information or file a complaint 

8 under this section. 

9 (f) DESIGNATION BY THE SECRETARY.—The Sec10 retary of Labor shall, within 30 days of the date of enact11 ment of this Act, designate by order the appropriate agen12 cy officials to receive, investigate, and adjudicate com13 plaints of violations of subsection (a)(1). 

14 SEC. 3. EMPLOYMENT STANDARD FOR OUTER CONTI15 NENTAL SHELF EMPLOYEES. 

16 (a) IN GENERAL.—An employer engaged in activities 

17 under a lease or permit issued under the Outer Conti18 nental Shelf Lands Act (43 U.S.C. 1301 et seq.) may not 

19 discharge or constructively discharge an employee per20 forming functions on or in waters above the Outer Conti21 nental Shelf without reasonable job-related grounds based 

22 on a failure to satisfactorily perform job duties, including 

23 compliance with the Outer Continental Shelf Lands Act 

24 (43 U.S.C. 1301 et seq.) and with applicable mandatory 

25 health and safety standards or other regulations, or other 


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1 legitimate business reason, where the employee has com2 pleted a probationary period of employment, not to exceed 

3 6 months. 

4 (b) CAUSE OF ACTION.—An employee aggrieved by 

5 a violation of subsection (a) may, within 1 year of such 

6 alleged violation, file a complaint in a Federal district 

7 court of appropriate jurisdiction. 

8 (c) REMEDIES.—In an action under subsection (b), 

9 for any prevailing employee, the court shall take affirma10 tive action to further the purposes of this section, which 

11 may include reinstatement with backpay and compen12 satory damages. Reasonable attorneys’ fees and costs shall 

13 be awarded to any prevailing employee under this section. 

14 (d) PRE-DISPUTE WAIVER PROHIBITED.—An em15 ployee’s right to a cause of action under this section may 

16 not be waived with respect to disputes that have not arisen 

17 as of the time of the waiver. 

18 (e) CONSTRUCTION.—Nothing in this section shall be 

19 construed to limit the availability of rights and remedies 

20 of employees under any other State or Federal law or a 

21 collective bargaining agreement. 

22 SEC. 4. DEFINITIONS. 

23 As used in this Act the following definitions apply: 

24 (1) The term ‘‘alternative energy’’ means elec25 tricity generated by a renewable energy resource. 


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1 (2) The term ‘‘covered employee’’— 

2 (A) means an individual performing serv3 ices on behalf of an employer and who is en4 gaged in activities on or in waters above the 

5 Outer Continental Shelf related to— 

6 (i) supporting, or carrying out explo7 ration, development, production, proc8 essing, or transportation of oil, gas, or sul9 fur, or the extraction of other minerals (as 

10 such term is defined in section 2 of the 

11 Outer Continental Shelf Lands Act (43 

12 U.S.C. 1331)); 

13 (ii) alternative energy; or 

14 (iii) oil spill or hazardous substances 

15 cleanup, emergency response, environ16 mental surveillance, protection, or restora17 tion, or activities related to occupational 

18 safety and health; and 

19 (B) includes an applicant for such employ20 ment. 

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

22 individuals, partnerships, associations, corporations, 

23 trusts, unincorporated organizations, nongovern24 mental organizations, or trustees that is engaged in 

25 profit or nonprofit business or industry and whose 


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1 activities are conducted on Outer Continental Shelf, 

2 and includes any agent, contractor, subcontractor, 

3 grantee or consultant of such employer. 

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

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

6 has in the Outer Continental Shelf Lands Act (43 

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

8 SEC. 5. COOPERATIVE AGREEMENTS AND CONSULTATION 

9 BETWEEN DEPARTMENTS OF LABOR AND 

10 THE INTERIOR. 

11 (a) COOPERATIVE AGREEMENT RELATED TO EDU12 CATION AND TRAINING.—The Secretary of Labor and the 

13 Secretary of the Interior shall enter into a cooperative 

14 educational and training agreement for the purpose of 

15 jointly training Department of Labor and Department of 

16 the Interior inspectors of onshore and offshore oil and gas 

17 drilling or production platforms or rigs, other related De18 partment of Labor and Department of the Interior per19 sonnel, and individuals who work on such platforms or 

20 rigs. 

21 (b) CONSULTATION RELATING TO WORKER SAFETY

22 AND HEALTH.—The Secretary of Labor, the Secretary of 

23 the Interior (including any office or bureau of the Depart24 ment of the Interior) and the Secretary of the department 

25 in which the Coast Guard is operating shall enter into a 


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1 memorandum of understanding to provide for consultation 

2 with and written comment of the Secretary of Labor on 

3 any regulations or guidelines or proposals therefor related 

4 to worker safety and health or the enforcement thereof 

5 under the Outer Continental Shelf Lands Act (43 U.S.C. 

6 1301 et seq.) when conducting a review or promulgation 

7 of such regulations, guidelines, or proposals. 

Æ 


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