|Sponsor||Rep. Miller, George|
|Committee||Education and Labor|
|Date||July 30, 2010 (111th Congress, 2nd Session)|
|Staff Contact||Adam Hepburn|
H.R. 5851 is expected to be considered on the floor of the House on Friday, July 30, 2010, under a closed rule. The legislation was introduced by Rep. George Miller (D-CA) on July 26, 2010.
H.R. 5851 would prohibit employers, including contractors and subcontractors, from discriminating against any individual who performs services for an employer engaged in offshore energy operations if that individual reports suspected safety violations to federal or state officials, testifies before Congress, or refuses to perform their jobs because of safety violations. The bill also protects whistleblowers who report violations of the Outer Continental Shelf Lands Act.
The bill would prohibit employers from firing, or otherwise discriminating against any employee for taking any of the following actions:
H.R. 5851 would permit employees who believe they have been fired or discriminated against for responding to suspected safety violations to file a complaint with the Labor Department within 180 days after the discriminatory act occurred, or 180 days after the date that the employee "knows or should reasonably have known" that the discriminatory act occurred. The complaint would describe the discriminatory act and identify the employers involved. The Department would then notify the employer of the complaint of the discriminatory act.
The bill directs the Labor Department to conduct an investigation of any complaint filed. If an employer can provide “clear and convincing” evidence that they would have taken the same action toward the employee, regardless of any actions the employee took with respect to suspected safety violations, then the complaint would be considered invalid. H.R. 5851 states that if the Labor Department finds that a complaint has been brought in bad faith, the Department could award reasonable attorney fees, up to $1,000, to the employer.
If the Department finds that an employer has wrongly fired or discriminated against an employee, then the employee would be eligible for reinstatement to the job, back pay, and compensatory damages. The measure also makes an employer found to have unfairly fired or discriminated against an employee liable for attorney fees. The bill allows employers to appeal any decisions regarding such complaints.
The bill provides that if the department has not issued a final decision on any complaint within 300 days, then the employee could file a lawsuit in federal court. It also permits the Labor Department to file a lawsuit in federal court if any party has not complied with its final decision regarding any complaint.
Finally, the bill stipulates that its provisions could not be waived by any agreement, policy, or condition of employment.
On April 20, 2010, the destruction of the Deepwater Horizon rig resulted in the death of 11 workers and unleashed an environmental calamity along the Gulf Coast. Shortly after the accident, reports began to surface suggesting workers were aware of safety problems but feared retaliation if they reported their concerns. At this juncture, there is no clear statutory coverage for offshore oil worker whistleblowers. Arguably, these individuals were covered under the Occupational Safety and Health Act (OSH Act) when it was originally passed. However, in 1979, when OSHA shifted the enforcement of safety and health for offshore oil rigs to the Coast Guard and Minerals Management Service, no whistleblower program was formally established. While it has been suggested that these workers may be covered under maritime law or other whistleblower statutes, an argument can be made that protections under current law are unclear.
Member Concerns: Although this bill is marketed as a response to the BP Gulf of Mexico oil spill, some Members may be concerned that this legislation is overly broad, so that even truck drivers and other workers who never set foot on an oil rig could be extended the whistleblower protections in this bill. Members may be specifically concerned that this bill creates a new and untested whistleblower framework unlike the longstanding protections in the OSH Act. The bill also creates a new federal right-to-sue that does not exist in cases brought under the OSH Act and seems to favor resolution in federal court, adding costs and delaying results for workers.
The Congressional Budget Office (CBO) has not yet prepared a cost estimate for H.R. 5851.