49 U.S.C. § 60129 : US Code - Section 60129: Protection of employees providing pipeline safety information

Search 49 U.S.C. § 60129 : US Code - Section 60129: Protection of employees providing pipeline safety information

(a) Discrimination Against Employee. -
(1) In general. - No employer may discharge any employee or
otherwise discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of employment
because the employee (or any person acting pursuant to a request
of the employee) -
(A) provided, caused to be provided, or is about to provide
or cause to be provided, to the employer or the Federal
Government information relating to any violation or alleged
violation of any order, regulation, or standard under this
chapter or any other Federal law relating to pipeline safety;
(B) refused to engage in any practice made unlawful by this
chapter or any other Federal law relating to pipeline safety,
if the employee has identified the alleged illegality to the
employer;
(C) provided, caused to be provided, or is about to provide
or cause to be provided, testimony before Congress or at any
Federal or State proceeding regarding any provision (or
proposed provision) of this chapter or any other Federal law
relating to pipeline safety;
(D) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under this
chapter or any other Federal law relating to pipeline safety,
or a proceeding for the administration or enforcement of any
requirement imposed under this chapter or any other Federal law
relating to pipeline safety;
(E) provided, caused to be provided, or is about to provide
or cause to be provided, testimony in any proceeding described
in subparagraph (D); or
(F) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in any other
manner in such a proceeding or in any other action to carry out
the purposes of this chapter or any other Federal law relating
to pipeline safety.
(2) Employer defined. - In this section, the term "employer"
means -
(A) a person owning or operating a pipeline facility; or
(B) a contractor or subcontractor of such a person.
(b) Department of Labor Complaint Procedure. -
(1) Filing and notification. - A person who believes that he or
she has been discharged or otherwise discriminated against by any
person in violation of subsection (a) may, not later than 180
days after the date on which such violation occurs, file (or have
any person file on his or her behalf) a complaint with the
Secretary of Labor alleging such discharge or discrimination.
Upon receipt of such a complaint, the Secretary of Labor shall
notify, in writing, the person or persons named in the complaint
and the Secretary of Transportation 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 or persons
under paragraph (2).
(2) Investigation; preliminary order. -
(A) In general. - Not later than 60 days after the date of
receipt of a complaint filed under paragraph (1) and after
affording the person or persons named in the complaint an
opportunity to submit to the Secretary of Labor a written
response to the complaint and an opportunity to meet with a
representative of the Secretary of Labor to present statements
from witnesses, the Secretary of Labor shall conduct an
investigation and determine whether there is reasonable cause
to believe that the complaint has merit and notify in writing
the complainant and the person or persons alleged to have
committed a violation of subsection (a) of the Secretary of
Labor's findings. If the Secretary of Labor concludes that
there is reasonable cause to believe that a violation of
subsection (a) has occurred, the Secretary of Labor shall
include with the Secretary of Labor's findings with a
preliminary order providing the relief prescribed by paragraph
(3)(B). Not later than 60 days after the date of notification
of findings under this subparagraph, any person alleged to have
committed a violation or the complainant may file objections to
the findings or preliminary order, or both, and request a
hearing on the record. The filing of such objections shall not
operate to stay any reinstatement remedy contained in the
preliminary order. Such hearings shall be conducted
expeditiously. If a hearing is not requested in such 60-day
period, the preliminary order shall be deemed a final order
that is not subject to judicial review.
(B) Requirements. -
(i) Required showing by complainant. - The Secretary of
Labor shall dismiss a complaint filed under this subsection
and shall not conduct an investigation otherwise required
under subparagraph (A) unless the complainant makes a prima
facie showing that any behavior described in subsection (a)
was a contributing factor in the unfavorable personnel action
alleged in the complaint.
(ii) Showing by employer. - Notwithstanding a finding by
the Secretary of Labor that the complainant has made the
showing required under clause (i), no investigation otherwise
required under subparagraph (A) shall be conducted if the
employer demonstrates, by clear and convincing evidence, that
the employer would have taken the same unfavorable personnel
action in the absence of that behavior.
(iii) Criteria for determination by Secretary. - The
Secretary of Labor may determine that a violation of
subsection (a) has occurred only if the complainant
demonstrates that any behavior described in subsection (a)
was a contributing factor in the unfavorable personnel action
alleged in the complaint.
(iv) Prohibition. - Relief may not be ordered under
subparagraph (A) if the employer demonstrates by clear and
convincing evidence that the employer would have taken the
same unfavorable personnel action in the absence of that
behavior.
(3) Final order. -
(A) Deadline for issuance; settlement agreements. - Not later
than 90 days after the date of conclusion of a hearing under
paragraph (2), the Secretary of Labor shall issue a final order
providing the relief prescribed by this paragraph or denying
the complaint. At any time before issuance of a final order, a
proceeding under this subsection may be terminated on the basis
of a settlement agreement entered into by the Secretary of
Labor, the complainant, and the person or persons alleged to
have committed the violation.
(B) Remedy. - If, in response to a complaint filed under
paragraph (1), the Secretary of Labor determines that a
violation of subsection (a) has occurred, the Secretary of
Labor shall order the person or persons who committed such
violation to -
(i) take affirmative action to abate the violation;
(ii) reinstate the complainant to his or her former
position together with the compensation (including back pay)
and restore the terms, conditions, and privileges associated
with his or her employment; and
(iii) provide compensatory damages to the complainant.
If such an order is issued under this paragraph, the Secretary
of Labor, at the request of the complainant, shall assess
against the person or persons against whom the order is issued
a sum equal to the aggregate amount of all costs and expenses
(including attorney's and expert witness fees) reasonably
incurred, as determined by the Secretary of Labor, by the
complainant for, or in connection with, the bringing the
complaint upon which the order was issued.
(C) Frivolous complaints. - If the Secretary of Labor finds
that a complaint under paragraph (1) is frivolous or has been
brought in bad faith, the Secretary of Labor may award to the
prevailing employer a reasonable attorney's fee not exceeding
$1,000.
(4) Review. -
(A) Appeal to court of appeals. - Any person adversely
affected or aggrieved by an order issued under paragraph (3)
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 occurred or the circuit
in which the complainant resided on the date of such violation.
The petition for review must be filed not later than 60 days
after the date of issuance of the final order of the Secretary
of Labor. Review shall conform to chapter 7 of title 5, United
States Code. The commencement of proceedings under this
subparagraph shall not, unless ordered by the court, operate as
a stay of the order.
(B) Limitation on collateral attack. - An order of the
Secretary of Labor with respect to which review could have been
obtained under subparagraph (A) shall not be subject to
judicial review in any criminal or other civil proceeding.
(5) Enforcement of order by secretary of labor. - Whenever any
person has failed to comply with an order issued under paragraph
(3), the Secretary of Labor may file a civil action in the United
States district court for the district in which the violation was
found to occur to enforce such order. In actions brought under
this paragraph, the district courts shall have jurisdiction to
grant all appropriate relief, including, but not to be limited
to, injunctive relief and compensatory damages.
(6) Enforcement of order by parties. -
(A) Commencement of action. - A person on whose behalf an
order was issued under paragraph (3) may commence a civil
action against the person or persons to whom such order was
issued to require compliance with such order. The appropriate
United States district court shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the
parties, to enforce such order.
(B) Attorney fees. - The court, in issuing any final order
under this paragraph, may award costs of litigation (including
reasonable attorney and expert witness fees) to any party
whenever the court determines such award of costs is
appropriate.
(c) Mandamus. - Any nondiscretionary duty imposed by this section
shall be enforceable in a mandamus proceeding brought under section
1361 of title 28, United States Code.
(d) Nonapplicability To Deliberate Violations. - Subsection (a)
shall not apply with respect to an action of an employee of an
employer who, acting without direction from the employer (or such
employer's agent), deliberately causes a violation of any
requirement relating to pipeline safety under this chapter or any
other law of the United States.