Representative George Miller (D-CA) recently reintroduced a bill (H.R. 1649) that would provide whistleblower protections to certain workers in the offshore oil and gas industry.  The bill was first introduced in 2010 and again in 2011. 

The bill would prohibit employers from terminating, or otherwise discriminating against any employee who:

  • Provided, caused to be provided, or is about to provide to the employer or state or federal officials information relating to what the employee reasonably believes to be a violation of the Outer Continental Shelf Lands Act (“the Act”);
  • Testified or is about to testify before Congress or in another proceeding concerning violations of the Act;
  • Participated or is about to participate in a hearing before Congress or in another proceeding concerning violations of the Act;
  • Objected to or refused to participate in any activity, policy, practice, or assigned task that the employee reasonable believes to be a violation of the Act;
  • Reported an unsafe condition, illness, injury, or information regarding the adequacy of any oil spill response plan to the employer or to a state or federal official; or
  • Refused to perform certain job duties if the employee has a “good faith belief” that the duties could result in injury or impairment of health of any employee, or could cause an oil spill. The bill defines a “good faith belief” as such that a reasonable person under circumstances confronting the employee would conclude that there is a hazard.

The bill would permit employees who believe they have been terminated or discriminated against for a protected activity to file a complaint with the Secretary of Labor (“Secretary”) 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 bill directs the Secretary to conduct an investigation of any complaint filed and determine whether there is reasonable cause to believe that the complaint has merit. If an employer can provide “clear and convincing” evidence that it would have taken the same action toward the employee regardless of any protected activity, then the investigation will be dismissed and relief will not be granted. The Secretary may only find a violation under this anti-retaliation provision if the complainant demonstrates that the protected activity was a “contributing factor” in the adverse decision.

Once the Secretary issues findings, the employer or complainant may file objections and request a hearing on the record before an administrative law judge (“ALJ”) of the Department of Labor. An administrative appeal of the ALJ’s decision may be requested with the Administrative Review Board and any decision by the ARB will be considered a final agency action appealable to the appropriate federal appellate court.

If an employer is found to have wrongly terminated or discriminated against an employee, then the employee would be eligible for reinstatement to the job, back pay, and compensatory damages. The employer would also be liable for attorney fees.

Finally, the bill provides that if a final decision has not been issued within 330 days, then the employee has the right to file a lawsuit in federal district court with an opportunity for a jury trial. The bill also permits the Secretary to file a lawsuit in federal district court if any party has not complied with its final decision.