II 114th CONGRESS 2d Session S. 3394 IN THE SENATE OF THE UNITED STATES September 26, 2016 Mr. Wyden (for himself, Mr. Markey , and Mrs. McCaskill ) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To amend the Energy Reorganization Act of 1974 to modify provisions relating to protection of the employees of the Department of Energy and the Nuclear Regulatory Commission.

1. Short title This Act may be cited as the Department of Energy Whistleblower Accountability Act . 2. Department of Energy and Nuclear Regulatory Commission employee protection (a) In general Section 211 of the Energy Reorganization Act of 1974 ( 42 U.S.C. 5851 ) is amended— (1) in subsection (a)— (A) by striking (a)(1) No employer and inserting the following: (a) Discrimination against employees (1) In general No employer ; (B) in paragraph (1)— (i) in the matter preceding subparagraph (A), by striking his ; (ii) by striking subparagraph (A) and inserting the following: (A) notified the employer or an employee concerns program of— (i) an alleged violation of— (I) this Act; or (II) the Atomic Energy Act of 1954 ( 42 U.S.C. 2011 et seq. ); or (ii) a violation of any law, rule, or regulation, an instance of gross mismanagement, gross waste of funds, or abuse of authority, or a substantial and specific danger to public health or safety; ; (iii) in subparagraph (B), by inserting described in subparagraph (A) or otherwise after any practice ; (iv) in subparagraph (C), by striking testified before Congress or at any Federal or State proceeding regarding any provision and inserting the following: disclosed to a Member of Congress or a representative of a committee of Congress, the Government Accountability Office, or an Inspector General, or testified before Congress or at a Federal or State proceeding regarding— (i) an alleged violation or incident described in subparagraph (A); or (ii) any provision ; (v) in subparagraph (D)— (I) by striking a proceeding under and inserting the following: a proceeding— (i) under ; (II) in clause (i) (as so designated), by striking 1954, as amended, or a proceeding for and inserting the following: 1954 ( 42 U.S.C. 2011 et seq. ); (ii) for ; (III) in clause (ii) (as so designated), by striking , as amended; and inserting ; or ; and (IV) by adding at the end the following: (iii) involving an alleged violation or incident described in subparagraph (A); ; (vi) in subparagraph (E), by striking any such proceeding or; and inserting any proceeding described in subparagraph (D); or ; and (vii) in subparagraph (F), by striking , as amended ; and (C) in paragraph (2)— (i) by redesignating subparagraphs (A) through (G) as subclauses (I) through (VII), respectively, and indenting the subclauses appropriately; (ii) by striking (2) For purposes of this section, the term and inserting the following: (2) Definitions In this section: (A) Employer (i) In general The term ; (iii) in subparagraph (A) (as so redesignated)— (I) in subclause (IV) of clause (i) (as so redesignated), by striking , but and all that follows through 12344 ; and (II) by adding at the end the following: (ii) Exclusion The term employer does not include any contractor or subcontractor covered by Executive Order 12344 (47 Fed. Reg. 4979 (February 3, 1982)). ; and (iv) by adding at the end the following: (B) Secretary The term Secretary means the Secretary of Labor. ; (2) in subsection (b)— (A) by striking (b)(1) Any employee who believes that he and inserting the following: (b) Complaints; action by Secretary (1) Complaints (A) In general Any employee who believes that the employee ; (B) in subparagraph (A) of paragraph (1) (as so redesignated)— (i) in the first sentence— (I) by striking 180 days and inserting 1 year ; and (II) by striking of Labor (in this section referred to as the Secretary ) ; and (ii) in the second sentence, by striking Upon receipt of such a complaint and inserting the following: (B) Notification On receipt of a complaint under subparagraph (A) ; (C) in paragraph (2)— (i) by striking (2)(A) Upon receipt and inserting the following: (2) Action by Secretary (A) Investigations; orders; limitation on settlement (i) Investigations (I) In general On receipt ; (ii) in subparagraph (A) (as so redesignated)— (I) in the second sentence, by striking Within 30 days of the and inserting the following: (II) Completion Not later than 30 days after the date of ; (II) in the third sentence, by striking Within ninety days of the receipt of such complaint and inserting the following: (ii) Orders (I) In general Not later than 90 days after the date of receipt of a complaint under paragraph (1) ; (III) in the fourth sentence, by striking An order and inserting the following: (II) Public notice and participation An order ; (IV) in the fifth sentence, by striking Upon the conclusion of such hearing and inserting the following: (III) Preliminary orders On conclusion of a hearing under subclause (II) ; (V) in the sixth sentence, by striking The Secretary and inserting the following: (iii) Limitation on settlement The Secretary ; and (VI) in clause (i) (as so designated), by adding at the end the following: (III) Request for administrative hearing If the Secretary has not issued any finding relating to an investigation under this clause by the date that is 180 days after the date on which the relevant complaint was filed under paragraph (1), and if there is no showing that the delay is due to the bad faith of the complainant, the complainant may request a hearing on the complaint before an administrative law judge of the Department of Labor. ; and (iii) in subparagraph (B)— (I) by striking (B) If and inserting the following: (B) Secretarial orders (i) In general If ; (II) in the first sentence— (aa) by striking the Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate and inserting the following: the Secretary— (I) shall order the person who committed the violation— (aa) to take affirmative action to abate the violation; and (bb) to reinstate ; and (bb) by striking his employment, and the Secretary may order such person and inserting the following: employment; and (II) may order the person ; (III) in the second sentence, by striking If an order and inserting the following: (ii) Costs and expenses (I) In general Subject to subclause (II), if an order ; and (IV) in clause (ii) (as so designated), by adding at the end the following: (II) Limitation The Secretary shall assess all administrative and litigation costs and attorneys fees incurred under this section only against the responsible contractor of the Commission or the Department of Energy, unless that contractor demonstrates to the satisfaction of the Secretary that the Commission or the Department of Energy, as applicable, contributed to, or caused, the violation by the contractor. (III) Exemplary damages; debarment; suspension The Secretary may assess exemplary damages, and debar, suspend, delicense, or take any similar action, against any employer or responsible employee of an employer against whom an order is issued under this subparagraph, as the Secretary determines to be appropriate to deter employer retaliation against employees who report concerns or carry out other activities protected under this section. ; and (D) in paragraph (4), by inserting (including a demand for a jury trial) after de novo review ; (3) in subsection (e)(2), by striking (2) The court and inserting the following: (2) Costs of litigation Subject to the limitation described in subsection (b)(2)(B)(ii)(II), a United States district court ; (4) in subsection (g)— (A) by striking causes a violation and inserting the following: causes— (1) a violation ; and (B) by striking 1954, as amended. and inserting the following: 1954 ( 42 U.S.C. 2011 et seq. ); or (2) an incident described in subsection (a)(1)(A)(ii). ; and (5) in subsection (i)— (A) by striking (i) The provisions and inserting the following: (i) Duties and authority of Department of Energy and Commission (1) Posting requirement The Secretary of Energy and the Chairperson of the Commission, as applicable, shall ensure that the provisions ; and (B) by adding at the end the following: (2) Contractor and employee sanctions The Secretary of Energy or the Chairperson of the Commission may sanction any officer or employee of the Department of Energy or the Commission, as applicable, who exercises management direction over a contractor who is the subject of a complaint filed under this section in any case in which the Secretary of Energy or the Chairperson determines that— (A) the complaint against the contractor is substantiated; and (B) the officer or employee of the Department of Energy or the Commission, as applicable, directly or indirectly permitted or sanctioned the violation or incident that was the subject of the complaint. . (b) Conformation of contracts (1) In general Notwithstanding any other provision of law, not later than 180 days after the date of enactment of this Act, the Secretary of Energy and the Chairperson of the Nuclear Regulatory Commission shall modify all contracts of the Department of Energy and the Nuclear Regulatory Commission, respectively, as the Secretary and the Chairperson determine to be necessary to conform the contracts to the applicable requirements of section 211 of the Energy Reorganization Act of 1974 ( 42 U.S.C. 5851 ) (as amended by subsection (a)). (2) Effect of failure to conform A failure by the Secretary of Energy or the Chairperson of the Nuclear Regulatory Commission to modify a contract in accordance with paragraph (1) shall not affect the ability of any employee of the Department of Energy or the Nuclear Regulatory Commission to file a complaint under an applicable provision of section 211 of the Energy Reorganization Act of 1974 ( 42 U.S.C. 5851 ) (as amended by subsection (a)).