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 Massa-
chusetts) introduced the following bill; which was referred to the Com-
mittee on Education and Labor 
A BILL 
To provide whistleblower protections to certain workers in 
the offshore oil and gas industry. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Offshore Oil and Gas 
Worker Whistleblower Protection Act of 2010’’. 
SEC. 2. WHISTLEBLOWER PROTECTIONS; EMPLOYEE PRO-
TECTION FROM OTHER RETALIATION. 
(a) PROHIBITION AGAINST RETALIATION.— 
(1) IN GENERAL.—No employer may discharge 
or otherwise discriminate against a covered employee 
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because the covered employee, whether at the cov-
ered employee’s initiative or in the ordinary course 
of the covered employee’s duties— 
(A) provided, caused to be provided, or is 
about to provide or cause to be provided to the 
employer or to a Federal or State Government 
official, information relating to any violation of, 
or any act or omission the covered employee 
reasonably believes to be a violation of any pro-
vision of the Outer Continental Shelf Lands Act 
(43 U.S.C. 1301 et seq.), or any order, rule, 
regulation, standard, or prohibition under that 
Act, or exercised any rights provided to employ-
ees under that Act; 
(B) testified or is about to testify in a pro-
ceeding concerning such violation; 
(C) assisted or participated or is about to 
assist or participate in such a proceeding; 
(D) testified or is about to testify before 
Congress on any matter covered by such Act; 
(E) reported an illness, injury, or unsafe 
condition related to the employer’s activities to 
the employer or a State or Federal Government 
official; 
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(F) refused to perform the covered employ-
ee’s duties, or exercised stop work authority, re-
lated to the employer’s activities described in 
section 3(1) if the covered employee had a good 
faith belief that performing such duties could 
result in injury to or impairment of the health 
of the covered employee or other employees, or 
cause an oil spill to the environment; or 
(H) objected to, or refused to participate 
in any activity, policy, practice, or assigned task 
that the covered employee reasonably believed 
to be in violation of any provision of such Act, 
or any order, rule, regulation, standard, or ban 
under such Act. 
(2) GOOD
FAITH
BELIEF.—For purposes of 
paragraph (1)(E), the circumstances causing the 
covered employee’s good faith belief that performing 
such duties would pose a health and safety hazard 
shall be of such a nature that a reasonable person 
under circumstances confronting the covered em-
ployee would conclude there is such a hazard. 
(b) PROCESS.— 
(1) IN GENERAL.—A covered employee who be-
lieves that he or she has been discharged or other-
wise discriminated against (hereafter referred to as 
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the ‘‘complainant’’) by any employer in violation of 
subsection (a)(1) may, not later than 180 days after 
the date on which such alleged violation occurs or 
the date on which the covered employee knows or 
should reasonably have known that such alleged vio-
lation occurred, file (or have any person file on his 
or her behalf) a complaint with the Secretary of 
Labor (referred to in this section as the ‘‘Sec-
retary’’) alleging such discharge or discrimination 
and identifying employer or employers responsible 
for such act. Upon receipt of such a complaint, the 
Secretary shall notify, in writing, the employer or 
employers named in the complaint of the filing of 
the complaint, of the allegations contained in the 
complaint, of the substance of evidence supporting 
the complaint, and of the opportunities that will be 
afforded to such person under paragraph (2). 
(2) INVESTIGATION.— 
(A) IN GENERAL.—Not later than 90 days 
after the date of receipt of a complaint filed 
under paragraph (1) the Secretary shall initiate 
an investigation and determine whether there is 
reasonable cause to believe that the complaint 
has merit and notify, in writing, the complain-
ant and the employer or employers alleged to 
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have committed a violation of subsection (a)(1) 
of the Secretary’s findings. The Secretary shall, 
during such investigation afford the complain-
ant and the employer or employers named in 
the complaint an opportunity to submit to the 
Secretary a written response to the complaint 
and an opportunity to meet with a representa-
tive of the Secretary to present statements from 
witnesses. The complainant shall be provided 
with an opportunity to review the information 
and evidence provided by employer or employers 
to the Secretary, and to review any response or 
rebuttal by such the complaint, as part of such 
investigation. 
(B) REASONABLE CAUSE FOUND; PRELIMI-
NARY ORDER.—If the Secretary concludes that 
there is reasonable cause to believe that a viola-
tion of subsection (a)(1) has occurred, the Sec-
retary shall accompany the Secretary’s findings 
with a preliminary order providing the relief 
prescribed by paragraph (3)(B). Not later than 
30 days after the date of notification of find-
ings under this paragraph, the employer or em-
ployers alleged to have committed the violation 
or the complainant may file objections to the 
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findings or preliminary order, or both, and re-
quest a hearing on the record before an admin-
istrative law judge of the Department of Labor. 
The filing of such objections shall not operate 
to stay any reinstatement remedy contained in 
the preliminary order. Any such hearing shall 
be conducted expeditiously. If a hearing is not 
requested in such 30-day period, the prelimi-
nary order shall be deemed a final order that is 
not subject to judicial review. The Secretary of 
Labor is authorized to enforce preliminary rein-
statement orders in the United States district 
court for the district in which the violation was 
found to occur, or in the United States district 
court for the District of Columbia. 
(C) DISMISSAL OF COMPLAINT.— 
(i) STANDARD FOR COMPLAINANT.— 
The Secretary shall dismiss a complaint 
filed under this subsection and shall not 
conduct an investigation otherwise required 
under subparagraph (A) unless the com-
plainant makes a prima facie showing that 
any behavior described in subparagraphs 
(A) through (F) of subsection (a)(1) was a 
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contributing factor in the adverse action 
alleged in the complaint. 
(ii) STANDARD FOR EMPLOYER.—Not-
withstanding a finding by the Secretary 
that the complainant has made the show-
ing required under clause (i), no investiga-
tion otherwise required under subpara-
graph (A) shall be conducted if the em-
ployer demonstrates, by clear and con-
vincing evidence, that the employer would 
have taken the same adverse action in the 
absence of that behavior. 
(iii) 
VIOLATION
STANDARD.—The 
Secretary may determine that a violation 
of subsection (a)(1) has occurred only if 
the complainant demonstrates that any be-
havior described in subparagraphs (A) 
through (F) of such subsection was a con-
tributing factor in the adverse action al-
leged in the complaint. 
(iv) RELIEF STANDARD.—Relief may 
not be ordered under subparagraph (A) if 
the employer demonstrates by clear and 
convincing evidence that the employer 
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would have taken the same adverse action 
in the absence of that behavior. 
(3) ORDERS.— 
(A) IN GENERAL.—Not later than 90 days 
after the receipt of a request for a hearing 
under subsection (b)(2)(B), the administrative 
law judge shall issue findings of fact and order 
the relief provided under this paragraph or 
deny the complaint. At any time before issuance 
of an order, a proceeding under this subsection 
may be terminated on the basis of a settlement 
agreement entered into by the Secretary, the 
complainant, and the person alleged to have 
committed the violation. Such a settlement may 
not be agreed by such parties if it contains con-
ditions which conflict with rights protected 
under this Act, are contrary to public policy, or 
include a restriction on a complainant’s right to 
future employment with employers other than 
the specific employers named in the complaint. 
(B) CONTENT OF ORDER.—If, in response 
to a complaint filed under paragraph (1), the 
administrative law judge determines that a vio-
lation of subsection (a)(1) has occurred, the ad-
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ministrative law judge shall order the employer 
or employers who committed such violation— 
(i) to take affirmative action to abate 
the violation; 
(ii) to reinstate the complainant to his 
or her former position together with com-
pensation (including back pay and prejudg-
ment interest) and restore the terms, con-
ditions, and privileges associated with his 
or her employment; and 
(iii) to provide compensatory and con-
sequential damages, and, as appropriate, 
exemplary damages to the complainant. 
(C) ATTORNEY FEES.—If such an order is 
issued under this paragraph, the Secretary, at 
the request of the complainant, shall assess 
against the employer or employers a sum equal 
to the aggregate amount of all costs and ex-
penses (including attorneys’ and expert witness 
fees) reasonably incurred by the complainant 
for, or in connection with, the bringing of the 
complaint upon which the order was issued at 
the conclusion of any stage of the proceeding. 
(D) BAD FAITH CLAIM.—If the Secretary 
finds that a complaint under paragraph (1) is 
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frivolous or has been brought in bad faith, the 
Secretary may award to the prevailing employer 
reasonable 
attorneys’ 
fees, 
not 
exceeding 
$1,000, to be paid by the complainant. 
(E) ADMINISTRATIVE APPEAL.—Not later 
than 30 days after the receipt of findings of 
fact or an order under subparagraph (B), the 
employer or employers alleged to have com-
mitted the violation or the complainant may 
file, with objections, an administrative appeal 
with the Secretary, who may designate such ap-
peal to a review board. In reviewing a decision 
and order of the administrative law judge, the 
Secretary shall affirm the decision and order if 
it is determined that the factual findings set 
forth therein are supported by substantial evi-
dence and the decision and order are made in 
accordance with applicable law. The Secretary 
shall issue a final decision and order affirming, 
or reversing, in whole or in part, the decision 
under review within 90 days after receipt of the 
administrative appeal under this subparagraph. 
If it is determined that a violation of subsection 
(a)(1) has occurred, the Secretary shall order 
relief provided under subparagraphs (B) and 
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(C). Such decision shall constitute a final agen-
cy action with respect to the matter appealed. 
(4) ACTION IN COURT.— 
(A) IN
GENERAL.—If the Secretary has 
not issued a final decision within 300 days after 
the filing of the complaint, the complainant 
may bring an action at law or equity for de 
novo review in the appropriate district court of 
the United States with jurisdiction, which shall 
have jurisdiction over such an action without 
regard to the amount in controversy, and which 
action shall, at the request of either party to 
such action, be tried by the court with a jury. 
The proceedings shall be governed by the same 
legal burdens of proof specified in paragraph 
(2)(C). 
(B) RELIEF.—The court shall have juris-
diction to grant all appropriate relief including 
injunctive relief, compensatory and consequen-
tial damages, including— 
(i) reinstatement with the same se-
niority status that the covered employee 
would have had, but for the discharge or 
discrimination; 
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(ii) the amount of back pay sufficient 
to make the covered employee whole, with 
prejudgment interest; 
(iii) exemplary damages, as appro-
priate; and 
(iv) reasonable attorney fees, includ-
ing litigation costs, and expert witness 
fees. 
(5) REVIEW.— 
(A) IN GENERAL.—Any person adversely 
affected or aggrieved by a final order issued 
under paragraph (3) or a judgment or order 
under paragraph (4) may obtain review of the 
order in the United States Court of Appeals for 
the circuit in which the violation, with respect 
to which the order was issued, allegedly oc-
curred or the circuit in which the complainant 
resided on the date of such violation. The peti-
tion for review must be filed not later than 60 
days after the date of the issuance of the final 
order of the Secretary. Review shall conform to 
chapter 7 of title 5, United States Code. The 
commencement of proceedings under this sub-
paragraph shall not, unless ordered by the 
court, operate as a stay of the order. 
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(B) NO
OTHER
JUDICIAL
REVIEW.—An 
order of the Secretary with respect to which re-
view could have been obtained under subpara-
graph (A) shall not be subject to judicial review 
in any criminal or other civil proceeding. 
(6) FAILURE TO COMPLY WITH ORDER.—When-
ever any employer has failed to comply with an order 
issued under paragraph (3), the Secretary may file 
a civil action in the United States district court for 
the district in which the violation was found to 
occur, or in the United States district court for the 
District of Columbia, to enforce such order. In ac-
tions brought under this paragraph, the district 
courts shall have jurisdiction to grant all appropriate 
relief including, but not limited to, injunctive relief 
and compensatory damages. 
(7) CIVIL ACTION TO REQUIRE COMPLIANCE.— 
(A) IN GENERAL.—A person on whose be-
half an order was issued under paragraph (3) 
may commence a civil action against the em-
ployer to whom such order was issued to re-
quire compliance with such order. The appro-
priate United States district court shall have 
jurisdiction, without regard to the amount in 
controversy or the citizenship of the parties, to 
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enforce such order. In cases where the Sec-
retary and the complainant file civil action to 
require compliance, the action of the Secretary 
shall take precedence. 
(B) AWARD.—The court, in issuing any 
final order under this paragraph, may award 
costs of litigation (including reasonable attor-
neys’ and expert witness fees) to any party 
whenever the court determines such award is 
appropriate. 
(c) CONSTRUCTION.— 
(1) EFFECT ON OTHER LAWS.—Nothing in this 
section preempts or diminishes any other safeguards 
against discrimination, demotion, discharge, suspen-
sion, threats, harassment, reprimand, retaliation, or 
any other manner of discrimination provided by Fed-
eral or State law. 
(2) RIGHTS OF EMPLOYEES.—Nothing in this 
section shall be construed to diminish the rights, 
privileges, or remedies of any employee under any 
Federal or State law or under any collective bar-
gaining agreement. The rights and remedies in this 
section may not be waived by any agreement, policy, 
form, or condition of employment. 
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