FTC Whistleblower Act of 2021
Bill: H.R.6093 | Sponsor: Rep. Schakowsky, Janice D. (D-IL)
Policy area: Commerce

Summary:
FTC Whistleblower Act of 2021
This bill provides protections and incentives for whistleblowers who disclose information about, or refuse to participate in, an activity they reasonably believe is a potential violation of any law, rule, or regulation enforced by the Federal Trade Commission.
Specifically, it prohibits retaliation against whistleblowers and provides monetary incentives for information that leads to administrative or judicial actions that result in sanctions exceeding $1 million.

To provide incentives for and protect whistleblowers under the 
   authority of the Federal Trade Commission, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``FTC Whistleblower Act of 2021''.

SEC. 2. PROTECTION OF WHISTLEBLOWERS.

    (a) Protection From Retaliation.--A covered entity may not, 
directly or indirectly, discharge, demote, suspend, threaten, harass, 
blacklist, or in any other manner discriminate or take an adverse 
personnel action against an individual, or any person perceived as 
assisting the individual, who does any of the following:
            (1) Makes (or the covered entity suspects the individual 
        has made or will make) a covered disclosure to--
                    (A) a qualified entity;
                    (B) a person with supervisory authority over the 
                individual; or
                    (C) another individual who the individual 
                reasonably believes has the authority to investigate, 
                discover, or terminate the violation in the covered 
                disclosure or to take any other action to address the 
                violation in the covered disclosure.
            (2) Initiates, testifies, assists, or participates (or the 
        covered entity expects will initiate, testify, assist, or 
        participate) in an investigation or judicial or administrative 
        proceeding by a qualified entity.
            (3) Objects to, or refuses to participate in, any activity, 
        policy, practice, or assigned task that the individual (or 
        other such person) reasonably believes is a potential or 
        suspected violation of any law, rule, or regulation enforced by 
        the Commission.
    (b) Enforcement.--
            (1) Cause of action.--An individual who alleges a violation 
        of subsection (a) may bring an action under this subsection in 
        the appropriate district court of the United States for the 
        relief provided in subsection (c).
            (2) Statute of limitations.--
                    (A) In general.--An action under this subsection 
                may not be brought--
                            (i) more than 6 years after the date on 
                        which the violation of subsection (a) occurred; 
                        or
                            (ii) more than 3 years after the date on 
                        which facts material to the right of action are 
                        known or reasonably should have been known by 
                        the whistleblower alleging a violation of 
                        subsection (a).
                    (B) Required action within 10 years.--
                Notwithstanding subparagraph (A), an action under this 
                subsection may not in any circumstance be brought more 
                than 10 years after the date on which the violation 
                occurs.
            (3) Waiver of rights and remedies.--The rights and remedies 
        provided for in this section may not be waived by any policy 
        form or condition of employment, including by a predispute 
        arbitration agreement.
            (4) Predispute arbitration agreements.--A predispute 
        arbitration agreement is not valid or enforceable if the 
        agreement requires arbitration of a dispute arising under this 
        section.
            (5) Restrictive covenant agreements.--An agreement in which 
        a whistleblower is restrained by the covered entity that was 
        the subject of a covered disclosure from exercising a lawful 
        profession, trade, or business of any kind is not valid and not 
        enforceable.
    (c) Relief.--Relief for an individual prevailing in an action 
brought under subsection (a) includes the following:
            (1) Reinstatement with the same seniority status that the 
        individual would have had, but for the discharge or 
        discrimination.
            (2) Three times the amount of back pay otherwise owed to 
        the individual, with interest.
            (3) Consequential and compensatory damages, and 
        compensation for litigation costs, expert witness fees, and 
        reasonable attorneys' fees.
    (d) Communications.--
            (1) Prohibition on impeding covered disclosure.--A covered 
        entity may not take any action that impedes or prevents an 
        individual from communicating directly with a qualified entity 
        about a covered disclosure, including enforcing, or threatening 
        to enforce, a confidentiality or non-disparagement agreement.
            (2) Communication with qualified entities.--A covered 
        entity may not require the consent of the counsel of the 
        covered entity for a qualified entity to communicate directly 
        with an individual or the attorney of an individual (if the 
        individual is represented by an attorney) regarding a possible 
        covered disclosure.
            (3) Enforcement.--A violation of paragraph (1) or (2) shall 
        be treated as a violation of a rule defining an unfair or 
        deceptive act or practice prescribed under section 18(a)(1)(B) 
        of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). 
        The Commission shall enforce this subsection in the same 
        manner, by the same means, and with the same jurisdiction, 
        powers, and duties as though all applicable terms and 
        provisions of the Federal Trade Commission Act (15 U.S.C. 41 et 
        seq.) were incorporated into and made a part of this 
        subsection. Any person who violates paragraph (1) or (2) shall 
        be subject to the penalties and entitled to the privileges and 
        immunities provided in the Federal Trade Commission Act.
    (e) Confidentiality.--Information that could reasonably be expected 
to reveal the identity of a whistleblower, except as provided in 
section 21(d) of the Federal Trade Commission Act (15 U.S.C. 57b-
2(d))--
            (1) shall be considered confidential;
            (2) may not be disclosed; and
            (3) is exempt from disclosure under section 552(b)(3) of 
        title 5, United States Code.
    (f) Rules of Construction.--
            (1) Collective bargaining.--Nothing in this section may be 
        construed to diminish the rights, privileges, or remedies of 
        any whistleblower under any Federal or State law, or under any 
        collective bargaining agreement.
            (2) Other whistleblower protections.--Nothing in this 
        section may be construed to preempt or supersede any other 
        Federal or State law relating to whistleblower protections.

SEC. 3. INCENTIVES FOR WHISTLEBLOWERS.

    (a) Awards.--If a whistleblower voluntarily provides to the 
Commission original information that the whistleblower reasonably 
believes relates to a potential or suspected violation of any law, 
rule, or regulation enforced by the Commission and the original 
information that the whistleblower provided to the Commission leads to 
the successful resolution of a covered action, the Commission, subject 
to subsection (b), may pay an award to a whistleblower in an aggregate 
amount of--
            (1) not less than 10 percent, in total, of collected 
        monetary sanctions; and
            (2) not more than 30 percent, in total, of collected 
        monetary sanctions.
    (b) Determination of Awards; Denial of Awards.--
            (1) Determination of awards.--
                    (A) Discretion.--The determination of whether, to 
                whom, or in what amount to make an award shall be in 
                the discretion of the Commission subject to the 
                provisions in subsection (a).
                    (B) Criteria.--In determining an award made under 
                subsection (a), the Commission shall take into 
                consideration--
                            (i) the significance of the original 
                        information provided by the whistleblower to 
                        the successful resolution of the covered 
                        action;
                            (ii) the degree of assistance provided by 
                        the whistleblower and any legal representative 
                        of the whistleblower in the covered action; and
                            (iii) such additional factors as the 
                        Commission considers relevant.
            (2) Denial of awards.--The Commission may deny an award 
        under subsection (a)--
                    (A) to any whistleblower who is convicted of a 
                criminal violation related to the covered action for 
                which the whistleblower otherwise could receive an 
                award under this section;
                    (B) to any whistleblower who, acting without 
                direction from a covered entity, or agent thereof, 
                deliberately causes or substantially contributes to the 
                alleged violation in the covered action; or
                    (C) to any whistleblower who fails to provide the 
                original information to the Commission in such form as 
                the Commission may require by regulation.
    (c) Representation.--A whistleblower may be represented by counsel.
    (d) No Contract Necessary.--A contract with the Commission is not 
necessary for a whistleblower to receive an award under subsection (a).
    (e) Provision of False Information.--A whistleblower who knowingly 
and intentionally makes any false, fictitious, or fraudulent statement 
or representation, or who makes or uses any false writing or document 
knowing the same to contain any false, fictitious, or fraudulent 
statement or entry, shall not be entitled to an award under this 
section.
    (f) Appeals.--
            (1) In general.--Any determination made under this section, 
        including whether, to whom, or in what amount to make an award, 
        shall be in the discretion of the Commission.
            (2) Appeals.--Any determination made by the Commission 
        under this section may be appealed by a whistleblower to the 
        appropriate court of appeals of the United States not later 
        than 30 days after the date on which a determination is issued 
        by the Commission.
            (3) Review.--The court shall review the determination made 
        by the Commission in accordance with section 706 of title 5, 
        United States Code.
    (g) Rules of Construction.--
            (1) Original information.--Original information submitted 
        to the Commission by a whistleblower in accordance with the 
        requirements of this section shall not lose the status as 
        original information solely because the whistleblower submitted 
        the information before the effective date of any regulation 
        issued under this Act if the information was submitted after 
        the date of the enactment of this Act.
            (2) Awards.--A whistleblower may receive an award under 
        this section regardless of whether the violation in the covered 
        action occurred before the date of the enactment of this Act, 
        and may receive an award before the Commission promulgates any 
        regulation under this Act.

SEC. 4. RULEMAKING.

    The Commission may issue such rules and regulations, including 
regulations under section 553 of title 5, United States Code, as may be 
necessary or appropriate to implement the provisions of this Act.

SEC. 5. DEFINITIONS.

    In this Act:
            (1) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (2) Covered action.--The term ``covered action'' means any 
        administrative or judicial action, including any related 
        administrative or judicial action, brought by the Commission or 
        the Attorney General under section 3 that in the aggregate 
        results in monetary sanctions exceeding $1,000,000.
            (3) Covered disclosure.--The term ``covered disclosure'' 
        means a formal or informal communication or transmission that 
        an individual reasonably believes relates to a potential or 
        suspected violation of any law, rule, or regulation enforced by 
        the Commission.
            (4) Covered entity.--The term ``covered entity'' means an 
        entity or individual subject to the jurisdiction of the 
        Commission.
            (5) Monetary sanctions.--The term ``monetary sanctions''--
                    (A) means monies, including penalties, 
                disgorgement, or interest, ordered or agreed to be 
                paid; and
                    (B) does not include any relief necessary to 
                redress injury to consumers, as determined by the 
                Commission.
            (6) Original information.--The term ``original 
        information'' means information that--
                    (A) is derived from the independent knowledge or 
                analysis of an individual;
                    (B) is not known to the Commission from any other 
                source, unless the individual is the original source of 
                the information; and
                    (C) is not exclusively derived from an allegation 
                made in a judicial or an administrative action, 
                governmental report, hearing, audit, or investigation, 
                or from the news media, unless the individual is a 
                source of the information.
            (7) Qualified entity.--The term ``qualified entity'' 
        means--
                    (A) the Commission; or
                    (B) a Federal entity, including any Member or 
                committee of Congress.
            (8) Successful resolution.--The term ``successful 
        resolution'', with respect to a covered action, includes any 
        settlement or adjudication of the covered action.
            (9) Whistleblower.--The term ``whistleblower'' means--
                    (A) an individual (or group of individuals) who is 
                a current or former full-time, part-time, or temporary 
                employee, contractor, subcontractor (at any tier), 
                grantee, subgrantee, or agent of a covered entity or 
                employee of a contractor or subcontractor (at any tier) 
                of that covered entity that engages in any of the 
                conduct described under paragraph (1), (2), or (3) of 
                section 2(a); or
                    (B) any person that assists or is perceived as 
                assisting any such individual (or group of 
                individuals).
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