I 

111TH CONGRESS 

2D SESSION H. R. 5851 

To provide whistleblower protections to certain workers in the offshore oil 

and gas industry. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 26, 2010 

Mr. GEORGE MILLER of California (for himself and Mr. MARKEY of Massachusetts) introduced the following bill; which was referred to the Committee on Education and Labor 

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 2010’’. 

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) reported an illness, injury, or unsafe 

22 condition related to the employer’s activities to 

23 the employer or a State or Federal Government 

24 official; 


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1 (F) refused to perform the covered employ2 ee’s duties, or exercised stop work authority, re3 lated to the employer’s activities described in 

4 section 3(1) if the covered employee had a good 

5 faith belief that performing such duties could 

6 result in injury to or impairment of the health 

7 of the covered employee or other employees, or 

8 cause an oil spill to the environment; or 

9 (H) objected to, or refused to participate 

10 in any activity, policy, practice, or assigned task 

11 that the covered employee reasonably believed 

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

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

14 under such Act. 

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

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

17 covered employee’s good faith belief that performing 

18 such duties would pose a health and safety hazard 

19 shall be of such a nature that a reasonable person 

20 under circumstances confronting the covered em21 ployee would conclude there is such a hazard. 

22 (b) PROCESS.— 

23 (1) IN GENERAL.—A covered employee who be24 lieves that he or she has been discharged or other25 wise discriminated against (hereafter referred to as 


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

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

3 the date on which such alleged violation occurs or 

4 the date on which the covered employee knows or 

5 should reasonably have known that such alleged vio6 lation occurred, file (or have any person file on his 

7 or her behalf) a complaint with the Secretary of 

8 Labor (referred to in this section as the ‘‘Sec9 retary’’) alleging such discharge or discrimination 

10 and identifying employer or employers responsible 

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

12 Secretary shall notify, in writing, the employer or 

13 employers named in the complaint of the filing of 

14 the complaint, of the allegations contained in the 

15 complaint, of the substance of evidence supporting 

16 the complaint, and of the opportunities that will be 

17 afforded to such person under paragraph (2). 

18 (2) INVESTIGATION.— 

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

20 after the date of receipt of a complaint filed 

21 under paragraph (1) the Secretary shall initiate 

22 an investigation and determine whether there is 

23 reasonable cause to believe that the complaint 

24 has merit and notify, in writing, the complain25 ant and the employer or employers alleged to 


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

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

3 during such investigation afford the complain4 ant and the employer or employers named in 

5 the complaint an opportunity to submit to the 

6 Secretary a written response to the complaint 

7 and an opportunity to meet with a representa8 tive of the Secretary to present statements from 

9 witnesses. The complainant shall be provided 

10 with an opportunity to review the information 

11 and evidence provided by employer or employers 

12 to the Secretary, and to review any response or 

13 rebuttal by such the complaint, as part of such 

14 investigation. 

15 (B) REASONABLE CAUSE FOUND; PRELIMI16 NARY ORDER.—If the Secretary concludes that 

17 there is reasonable cause to believe that a viola18 tion of subsection (a)(1) has occurred, the Sec19 retary shall accompany the Secretary’s findings 

20 with a preliminary order providing the relief 

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

22 30 days after the date of notification of find23 ings under this paragraph, the employer or em24 ployers alleged to have committed the violation 

25 or the complainant may file objections to the 


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1 findings or preliminary order, or both, and re2 quest a hearing on the record before an admin3 istrative law judge of the Department of Labor. 

4 The filing of such objections shall not operate 

5 to stay any reinstatement remedy contained in 

6 the preliminary order. Any such hearing shall 

7 be conducted expeditiously. If a hearing is not 

8 requested in such 30-day period, the prelimi9 nary order shall be deemed a final order that is 

10 not subject to judicial review. The Secretary of 

11 Labor is authorized to enforce preliminary rein12 statement orders in the United States district 

13 court for the district in which the violation was 

14 found to occur, or in the United States district 

15 court for the District of Columbia. 

16 (C) DISMISSAL OF COMPLAINT.— 

17 (i) STANDARD FOR COMPLAINANT.— 

18 The Secretary shall dismiss a complaint 

19 filed under this subsection and shall not 

20 conduct an investigation otherwise required 

21 under subparagraph (A) unless the com22 plainant makes a prima facie showing that 

23 any behavior described in subparagraphs 

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


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1 contributing factor in the adverse action 

2 alleged in the complaint. 

3 (ii) STANDARD FOR EMPLOYER.—Not4 withstanding a finding by the Secretary 

5 that the complainant has made the show6 ing required under clause (i), no investiga7 tion otherwise required under subpara8 graph (A) shall be conducted if the em9 ployer demonstrates, by clear and con10 vincing evidence, that the employer would 

11 have taken the same adverse action in the 

12 absence of that behavior. 

13 (iii) VIOLATION STANDARD.—The 

14 Secretary may determine that a violation 

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

16 the complainant demonstrates that any be17 havior described in subparagraphs (A) 

18 through (F) of such subsection was a con19 tributing factor in the adverse action al20 leged in the complaint. 

21 (iv) RELIEF STANDARD.—Relief may 

22 not be ordered under subparagraph (A) if 

23 the employer demonstrates by clear and 

24 convincing evidence that the employer 


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1 would have taken the same adverse action 

2 in the absence of that behavior. 

3 (3) ORDERS.— 

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

5 after the receipt of a request for a hearing 

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

7 law judge shall issue findings of fact and order 

8 the relief provided under this paragraph or 

9 deny the complaint. At any time before issuance 

10 of an order, a proceeding under this subsection 

11 may be terminated on the basis of a settlement 

12 agreement entered into by the Secretary, the 

13 complainant, and the person alleged to have 

14 committed the violation. Such a settlement may 

15 not be agreed by such parties if it contains con16 ditions which conflict with rights protected 

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

18 include a restriction on a complainant’s right to 

19 future employment with employers other than 

20 the specific employers named in the complaint. 

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

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

23 administrative law judge determines that a vio24 lation of subsection (a)(1) has occurred, the adVerDate Mar 15 2010 01:07 Jul 28, 2010 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5851.IH H5851

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1 ministrative law judge shall order the employer 

2 or employers who committed such violation— 

3 (i) to take affirmative action to abate 

4 the violation; 

5 (ii) to reinstate the complainant to his 

6 or her former position together with com7 pensation (including back pay and prejudg8 ment interest) and restore the terms, con9 ditions, and privileges associated with his 

10 or her employment; and 

11 (iii) to provide compensatory and con12 sequential damages, and, as appropriate, 

13 exemplary damages to the complainant. 

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

15 issued under this paragraph, the Secretary, at 

16 the request of the complainant, shall assess 

17 against the employer or employers a sum equal 

18 to the aggregate amount of all costs and ex19 penses (including attorneys’ and expert witness 

20 fees) reasonably incurred by the complainant 

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

22 complaint upon which the order was issued at 

23 the conclusion of any stage of the proceeding. 

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

25 finds that a complaint under paragraph (1) is 


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1 frivolous or has been brought in bad faith, the 

2 Secretary may award to the prevailing employer 

3 reasonable attorneys’ fees, not exceeding 

4 $1,000, to be paid by the complainant. 

5 (E) ADMINISTRATIVE APPEAL.—Not later 

6 than 30 days after the receipt of findings of 

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

8 employer or employers alleged to have com9 mitted the violation or the complainant may 

10 file, with objections, an administrative appeal 

11 with the Secretary, who may designate such ap12 peal to a review board. In reviewing a decision 

13 and order of the administrative law judge, the 

14 Secretary shall affirm the decision and order if 

15 it is determined that the factual findings set 

16 forth therein are supported by substantial evi17 dence and the decision and order are made in 

18 accordance with applicable law. The Secretary 

19 shall issue a final decision and order affirming, 

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

21 under review within 90 days after receipt of the 

22 administrative appeal under this subparagraph. 

23 If it is determined that a violation of subsection 

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

25 relief provided under subparagraphs (B) and 


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1 (C). Such decision shall constitute a final agen2 cy action with respect to the matter appealed. 

3 (4) ACTION IN COURT.— 

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

5 not issued a final decision within 300 days after 

6 the filing of the complaint, the complainant 

7 may bring an action at law or equity for de 

8 novo review in the appropriate district court of 

9 the United States with jurisdiction, which shall 

10 have jurisdiction over such an action without 

11 regard to the amount in controversy, and which 

12 action shall, at the request of either party to 

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

14 The proceedings shall be governed by the same 

15 legal burdens of proof specified in paragraph 

16 (2)(C). 

17 (B) RELIEF.—The court shall have juris18 diction to grant all appropriate relief including 

19 injunctive relief, compensatory and consequen20 tial damages, including— 

21 (i) reinstatement with the same se22 niority status that the covered employee 

23 would have had, but for the discharge or 

24 discrimination; 


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1 (ii) the amount of back pay sufficient 

2 to make the covered employee whole, with 

3 prejudgment interest; 

4 (iii) exemplary damages, as appro5 priate; and 

6 (iv) reasonable attorney fees, includ7 ing litigation costs, and expert witness 

8 fees. 

9 (5) REVIEW.— 

10 (A) IN GENERAL.—Any person adversely 

11 affected or aggrieved by a final order issued 

12 under paragraph (3) or a judgment or order 

13 under paragraph (4) may obtain review of the 

14 order in the United States Court of Appeals for 

15 the circuit in which the violation, with respect 

16 to which the order was issued, allegedly oc17 curred or the circuit in which the complainant 

18 resided on the date of such violation. The peti19 tion for review must be filed not later than 60 

20 days after the date of the issuance of the final 

21 order of the Secretary. Review shall conform to 

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

23 commencement of proceedings under this sub24 paragraph shall not, unless ordered by the 

25 court, operate as a stay of the order. 


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1 (B) NO OTHER JUDICIAL REVIEW.—An 

2 order of the Secretary with respect to which re3 view could have been obtained under subpara4 graph (A) shall not be subject to judicial review 

5 in any criminal or other civil proceeding. 

6 (6) FAILURE TO COMPLY WITH ORDER.—When7 ever any employer has failed to comply with an order 

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

9 a civil action in the United States district court for 

10 the district in which the violation was found to 

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

12 District of Columbia, to enforce such order. In ac13 tions brought under this paragraph, the district 

14 courts shall have jurisdiction to grant all appropriate 

15 relief including, but not limited to, injunctive relief 

16 and compensatory damages. 

17 (7) CIVIL ACTION TO REQUIRE COMPLIANCE.— 

18 (A) IN GENERAL.—A person on whose be19 half an order was issued under paragraph (3) 

20 may commence a civil action against the em21 ployer to whom such order was issued to re22 quire compliance with such order. The appro23 priate United States district court shall have 

24 jurisdiction, without regard to the amount in 

25 controversy or the citizenship of the parties, to 


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1 enforce such order. In cases where the Sec2 retary and the complainant file civil action to 

3 require compliance, the action of the Secretary 

4 shall take precedence. 

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

6 final order under this paragraph, may award 

7 costs of litigation (including reasonable attor8 neys’ and expert witness fees) to any party 

9 whenever the court determines such award is 

10 appropriate. 

11 (c) CONSTRUCTION.— 

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

13 section preempts or diminishes any other safeguards 

14 against discrimination, demotion, discharge, suspen15 sion, threats, harassment, reprimand, retaliation, or 

16 any other manner of discrimination provided by Fed17 eral or State law. 

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

19 section shall be construed to diminish the rights, 

20 privileges, or remedies of any employee under any 

21 Federal or State law or under any collective bar22 gaining agreement. The rights and remedies in this 

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

24 form, or condition of employment. 


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1 (d) ENFORCEMENT OF NONDISCRETIONARY DU2 TIES.—Any nondiscretionary duty imposed by this section 

3 shall be enforceable in a mandamus proceeding brought 

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

5 (e) POSTING OF NOTICE AND TRAINING.—All em6 ployers shall post a notice which has been approved as to 

7 form and content by the Secretary of Labor in a con8 spicuous location in the place of employment where cov9 ered employees frequent which explains employee rights 

10 and remedies under this section. Each employer shall pro11 vide training to covered employees of their rights under 

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

13 than once every 12 months thereafter, and provide covered 

14 employees with a card which contains a toll free telephone 

15 number at the Department of Labor which covered em16 ployees can call to get information or file a complaint 

17 under this section. 

18 (f) DESIGNATION BY THE SECRETARY.—The Sec19 retary of Labor shall, within 30 days of the date of enact20 ment of this Act, designate by order the appropriate agen21 cy officials to receive, investigate, and adjudicate com22 plaints of violations of subsection (a)(1). 

23 SEC. 3. DEFINITIONS. 

24 As used in this Act the following definitions apply: 

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


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1 (A) means an individual performing serv2 ices on behalf of an employer that is engaged 

3 in activities on or in waters above the Outer 

4 Continental Shelf related to— 

5 (i) supporting, or carrying out explo6 ration, development, production, proc7 essing, or transportation of oil or gas; or 

8 (ii) oil spill cleanup, emergency re9 sponse, environmental surveillance, protec10 tion, or restoration, or other oil spill activi11 ties related to occupational safety and 

12 health; and 

13 (B) includes an applicant for such employ14 ment. 

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

16 individuals, partnerships, associations, corporations, 

17 trusts, unincorporated organizations, nongovern18 mental organizations, or trustees, and includes any 

19 agent, contractor, subcontractor, grantee or consult20 ant of such employer. 

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

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

23 has in the Outer Continental Shelf Lands Act (43 

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

Æ 


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