Survey of Federal Whistleblower and Anti-Retaliation Laws

Congressional research reportApr 22, 2013

Ask Donna

What actually matters in this document.

Text

Survey of Federal Whistleblower and AntiRetaliation Laws

(name redacted)

Legislative Attorney

(name redacted)

Legislative Attorney

(name redacted)

Law Librarian

April 22, 2013

Congressional Research Service

7-....

www.crs.gov

R43045

CRS Report for Congress

Prepared for Members and Committees of Congress

Survey of Federal Whistleblower and Anti-Retaliation Laws

Summary

This report provides an overview of federal whistleblower and anti-retaliation laws. In general,

these laws protect employees who report misconduct by their employers or who engage in various

protected activities, such as participating in an investigation or filing a complaint. In recent years,

Congress has expanded employee protections for a variety of private-sector workers. Eleven of

the forty laws reviewed in this report were enacted after 1999. Among these laws are the

Sarbanes-Oxley Act, the FDA Food Safety Modernization Act, and the Dodd-Frank Wall Street

Reform and Consumer Protection Act.

The report focuses on key aspects of the federal whistleblower and anti-retaliation laws. For each

law, the report summarizes the activities that are protected, how the law’s protections are

enforced, whether the law provides a private right of action, the remedies prescribed by the law,

and the year the law’s whistleblower or anti-retaliation provisions were adopted and amended.

With regard to amendment dates, the report identifies only dates associated with substantive

amendments. For enactments after 2001, the report provides information on congressional

sponsorship and votes.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Contents

Age Discrimination in Employment Act (ADEA) ........................................................................... 1

Coverage .................................................................................................................................... 1

Enforcement .............................................................................................................................. 1

Is there a private right of action? ............................................................................................... 1

Remedies ................................................................................................................................... 1

Years of Adoption and Relevant Amendments .......................................................................... 1

American Recovery and Reinvestment Act of 2009 (ARRA) ......................................................... 2

Coverage .................................................................................................................................... 2

Enforcement .............................................................................................................................. 2

Is there a private right of action? ............................................................................................... 2

Remedies ................................................................................................................................... 3

Years of Adoption and Relevant Amendments .......................................................................... 3

Americans with Disabilities Act (ADA) .......................................................................................... 3

Coverage .................................................................................................................................... 3

Enforcement .............................................................................................................................. 3

Is there a private right of action? ............................................................................................... 4

Remedies ................................................................................................................................... 4

Years of Adoption and Relevant Amendments .......................................................................... 4

Asbestos Hazard Emergency Response Act (AHERA) ................................................................... 5

Coverage .................................................................................................................................... 5

Enforcement .............................................................................................................................. 5

Is there a private right of action? ............................................................................................... 5

Remedies ................................................................................................................................... 5

Years of Adoption and Relevant Amendments .......................................................................... 5

Clean Air Act (CAA) ....................................................................................................................... 5

Coverage .................................................................................................................................... 5

Enforcement .............................................................................................................................. 6

Is there a private right of action? ............................................................................................... 6

Remedies ................................................................................................................................... 6

Years of Adoption and Relevant Amendments .......................................................................... 6

Commercial Motor Vehicle Safety Act (CMVSA) .......................................................................... 7

Coverage .................................................................................................................................... 7

Enforcement .............................................................................................................................. 7

Is there a private right of action? ............................................................................................... 8

Remedies ................................................................................................................................... 8

Years of Adoption and Relevant Amendments .......................................................................... 8

Comprehensive Environmental Response Compensation and Liability Act (CERCLA) ................ 8

Coverage .................................................................................................................................... 8

Enforcement .............................................................................................................................. 9

Is there a private right of action? ............................................................................................... 9

Remedies ................................................................................................................................... 9

Years of Adoption and Relevant Amendments .......................................................................... 9

Consumer Financial Protection Act (CFPA) .................................................................................... 9

Coverage .................................................................................................................................... 9

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Enforcement ............................................................................................................................ 10

Is there a private right of action? ............................................................................................. 10

Remedies ................................................................................................................................. 11

Years of Adoption and Relevant Amendments ........................................................................ 11

Consumer Product Safety Act (CPSA) .......................................................................................... 11

Coverage .................................................................................................................................. 11

Enforcement ............................................................................................................................ 11

Is there a private right of action? ............................................................................................. 12

Remedies ................................................................................................................................. 12

Years of Adoption and Relevant Amendments ........................................................................ 12

Department of Defense Authorization Act of 1987 ....................................................................... 13

Coverage .................................................................................................................................. 13

Enforcement ............................................................................................................................ 13

Is there a private right of action? ............................................................................................. 13

Remedies ................................................................................................................................. 14

Years of Adoption and Relevant Amendments ........................................................................ 14

Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) ...................... 14

Coverage .................................................................................................................................. 14

Enforcement ............................................................................................................................ 15

Is there a private right of action? ............................................................................................. 16

Remedies ................................................................................................................................. 16

Years of Adoption and Relevant Amendments ........................................................................ 16

Employee Polygraph Protection Act (EPPA) ................................................................................. 17

Coverage .................................................................................................................................. 17

Enforcement ............................................................................................................................ 17

Is there a private right of action? ............................................................................................. 17

Remedies ................................................................................................................................. 17

Years of Adoption and Relevant Amendments ........................................................................ 17

Employee Retirement Income Security Act (ERISA) ................................................................... 18

Coverage .................................................................................................................................. 18

Enforcement ............................................................................................................................ 18

Is there a private right of action? ............................................................................................. 18

Remedies ................................................................................................................................. 18

Years of Adoption and Relevant Amendments ........................................................................ 18

Energy Reorganization Act of 1974 (ERA) ................................................................................... 19

Coverage .................................................................................................................................. 19

Enforcement ............................................................................................................................ 19

Is there a private right of action? ............................................................................................. 20

Remedies ................................................................................................................................. 20

Years of Adoption and Relevant Amendments ........................................................................ 20

Fair Labor Standards Act (FLSA) .................................................................................................. 20

Coverage .................................................................................................................................. 20

Is there a private right of action? ............................................................................................. 21

Remedies ................................................................................................................................. 21

Years of Adoption and Relevant Amendments ........................................................................ 21

Family and Medical Leave Act (FMLA) ....................................................................................... 21

Coverage .................................................................................................................................. 21

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Enforcement ............................................................................................................................ 21

Is there a private right of action? ............................................................................................. 22

Remedies ................................................................................................................................. 22

Years of Adoption and Relevant Amendments ........................................................................ 22

FBI Employee Whistleblower Protections..................................................................................... 22

Coverage .................................................................................................................................. 22

Enforcement ............................................................................................................................ 22

Is there a private right of action? ............................................................................................. 23

Remedies ................................................................................................................................. 23

Years of Adoption and Relevant Amendments ........................................................................ 23

FDA Food Safety Modernization Act (FDA Modernization Act) .................................................. 24

Coverage .................................................................................................................................. 24

Enforcement ............................................................................................................................ 24

Is there a private right of action? ............................................................................................. 24

Remedies ................................................................................................................................. 25

Years of Adoption and Relevant Amendments ........................................................................ 25

Federal Mine Safety and Health Act (FMSHA) ............................................................................ 25

Coverage .................................................................................................................................. 25

Enforcement ............................................................................................................................ 25

Is there a private right of action? ............................................................................................. 26

Remedies ................................................................................................................................. 26

Years of Adoption and Relevant Amendments ........................................................................ 26

Federal Railroad Safety Act (FRSA) ............................................................................................. 26

Coverage .................................................................................................................................. 26

Enforcement ............................................................................................................................ 27

Is there a private right of action? ............................................................................................. 28

Remedies ................................................................................................................................. 28

Years of Adoption and Relevant Amendments ........................................................................ 28

Federal Water Pollution Control Act (Clean Water Act) ................................................................ 28

Coverage .................................................................................................................................. 28

Enforcement ............................................................................................................................ 29

Is there a private right of action? ............................................................................................. 29

Remedies ................................................................................................................................. 29

Years of Adoption and Relevant Amendments ........................................................................ 29

International Safe Container Act (ISCA) ....................................................................................... 30

Coverage .................................................................................................................................. 30

Enforcement ............................................................................................................................ 30

Is there a private right of action? ............................................................................................. 30

Remedies ................................................................................................................................. 30

Years of Adoption and Relevant Amendments ........................................................................ 30

Longshore and Harbor Workers’ Compensation Act (LHWCA) ................................................... 31

Coverage .................................................................................................................................. 31

Enforcement ............................................................................................................................ 31

Is there a private right of action? ............................................................................................. 31

Remedies ................................................................................................................................. 31

Years of Adoption and Relevant Amendments ........................................................................ 32

Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) ....................................... 32

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Coverage .................................................................................................................................. 32

Enforcement ............................................................................................................................ 32

Is there a private right of action? ............................................................................................. 32

Remedies ................................................................................................................................. 32

Years of Adoption and Relevant Amendments ........................................................................ 32

Moving Ahead for Progress in the 21st Century Act (MAP-21) .................................................... 33

Coverage .................................................................................................................................. 33

Enforcement ............................................................................................................................ 33

Is there a private right of action? ............................................................................................. 34

Remedies ................................................................................................................................. 34

Years of Adoption and Relevant Amendments ........................................................................ 34

National Labor Relations Act (NLRA) .......................................................................................... 34

Coverage .................................................................................................................................. 34

Enforcement ............................................................................................................................ 34

Is there a private right of action? ............................................................................................. 35

Remedies ................................................................................................................................. 35

Years of Adoption or Relevant Amendments .......................................................................... 35

National Transit Systems Security Act (NTSSA) .......................................................................... 35

Coverage .................................................................................................................................. 35

Enforcement ............................................................................................................................ 36

Is there a private right of action? ............................................................................................. 37

Remedies ................................................................................................................................. 37

Years of Adoption and Relevant Amendments ........................................................................ 37

Occupational Safety and Health Act of 1970 (OSH Act) .............................................................. 37

Coverage .................................................................................................................................. 37

Enforcement ............................................................................................................................ 38

Is there a private right of action? ............................................................................................. 38

Remedies ................................................................................................................................. 38

Years of Adoption and Relevant Amendments ........................................................................ 38

Patient Protection and Affordable Care Act (ACA) ....................................................................... 38

Coverage .................................................................................................................................. 38

Enforcement ............................................................................................................................ 39

Is there a private right of action? ............................................................................................. 39

Remedies ................................................................................................................................. 39

Years of Adoption and Relevant Amendments ........................................................................ 39

Pipeline Safety Improvement Act (PSIA) ...................................................................................... 39

Coverage .................................................................................................................................. 39

Enforcement ............................................................................................................................ 40

Is there a private right of action? ............................................................................................. 40

Remedies ................................................................................................................................. 41

Years of Adoption and Relevant Amendments ........................................................................ 41

Safe Drinking Water Act (SDWA) ................................................................................................. 41

Coverage .................................................................................................................................. 41

Enforcement ............................................................................................................................ 41

Is there a private right of action? ............................................................................................. 42

Remedies ................................................................................................................................. 42

Years of Adoption and Relevant Amendments ........................................................................ 42

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Sarbanes-Oxley Act of 2002 (SOX) .............................................................................................. 42

Coverage .................................................................................................................................. 42

Enforcement ............................................................................................................................ 43

Is there a private right of action? ............................................................................................. 43

Remedies ................................................................................................................................. 43

Years of Adoption and Relevant Amendments ........................................................................ 43

Seaman’s Protection Act (SPA) ..................................................................................................... 44

Coverage .................................................................................................................................. 44

Enforcement ............................................................................................................................ 44

Is there a private right of action? ............................................................................................. 44

Remedies ................................................................................................................................. 44

Years of Adoption and Relevant Amendments ........................................................................ 44

Solid Waste Disposal Act (SWDA) ............................................................................................... 45

Coverage .................................................................................................................................. 45

Enforcement ............................................................................................................................ 45

Is there a private right of action? ............................................................................................. 46

Remedies ................................................................................................................................. 46

Years of Adoption and Relevant Amendments ........................................................................ 46

Surface Mining Control and Reclamation Act (SMCRA) ............................................................. 46

Coverage .................................................................................................................................. 46

Enforcement ............................................................................................................................ 46

Is there a private right of action? ............................................................................................. 47

Remedies ................................................................................................................................. 47

Years of Adoption and Relevant Amendments ........................................................................ 47

Title VII of the Civil Rights Act of 1964 (Title VII)...................................................................... 47

Coverage .................................................................................................................................. 47

Enforcement ............................................................................................................................ 48

Is there a private right of action? ............................................................................................. 48

Remedies ................................................................................................................................. 48

Years of Adoption and Relevant Amendments ........................................................................ 49

Toxic Substances Control Act (TSCA) .......................................................................................... 49

Coverage .................................................................................................................................. 49

Enforcement ............................................................................................................................ 49

Is there a private right of action? ............................................................................................. 49

Remedies ................................................................................................................................. 49

Years of Adoption and Relevant Amendments ........................................................................ 50

Uniformed Services Employment and Reemployment Rights Act (USERRA) ............................ 50

Coverage .................................................................................................................................. 50

Enforcement ............................................................................................................................ 50

Is there a private right of action? ............................................................................................. 51

Remedies ................................................................................................................................. 51

Year of Adoption...................................................................................................................... 51

Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (AIR21) .................... 52

Coverage .................................................................................................................................. 52

Enforcement ............................................................................................................................ 53

Is there a private right of action? ............................................................................................. 53

Remedies ................................................................................................................................. 53

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Years of Adoption and Relevant Amendments ........................................................................ 53

Whistleblower Protection Act (WPA) ............................................................................................ 53

Coverage .................................................................................................................................. 53

Enforcement ............................................................................................................................ 54

Is there a private right of action? ............................................................................................. 55

Remedies ................................................................................................................................. 55

Years of Adoption and Relevant Amendments ........................................................................ 55

Tables

Table 1. Comparison of Selected Provisions in Federal Whistleblower and AntiRetaliation Laws ......................................................................................................................... 57

Contacts

Author Contact Information........................................................................................................... 59

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Age Discrimination in Employment Act (ADEA)

Coverage

The ADEA prohibits an employer from discriminating against an employee or applicant for

employment because the individual has opposed any practice made unlawful by section 4 of the

ADEA or because the individual has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or litigation under the ADEA.1 The ADEA also prohibits

such actions when committed by an employment agency against any individual, and by a labor

organization against a member or applicant for membership.

Enforcement

An individual who believes that he or she has been discriminated against in violation of the

ADEA’s anti-retaliation provisions may file a charge with the Equal Employment Opportunity

Commission (EEOC) within 180 days after the alleged unlawful practice occurred.2 Upon

receiving the charge, the EEOC will seek to eliminate any alleged unlawful practices by informal

methods of conciliation, conference, and persuasion.3

Is there a private right of action?

Yes. If the EEOC does not commence an action to enforce the rights of the aggrieved person,

such individual may bring a civil action in any court of competent jurisdiction for such legal or

equitable relief as will effectuate the purposes of the ADEA.4

Remedies

A court may award such legal or equitable relief as may be appropriate to effectuate the purposes

of the ADEA, including without limitation judgments compelling employment, reinstatement, or

promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid

overtime compensation.5

Years of Adoption and Relevant Amendments

Adopted 1967.

29 U.S.C. § 623(d).

29 U.S.C. § 626(d)(1).

29 U.S.C. § 626(d)(2).

29 U.S.C. § 626(c)(1).

29 U.S.C. § 626(b).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

American Recovery and Reinvestment Act of 2009

(ARRA)

Coverage

ARRA prohibits a non-federal employer that receives covered funds from discharging or

otherwise discriminating against an employee who discloses to the Recovery Accountability and

Transparency Board (Board), an inspector general, a Member of Congress, or specified others,

information that the employee reasonably believes is evidence of (1) gross mismanagement of an

agency contract or grant related to covered funds; (2) a gross waste of covered funds; (3) a

substantial and specific danger to public health or safety related to the implementation or use of

covered funds; (4) an abuse of authority related to the implementation or use of covered funds; or

(5) a violation of law, rule, or regulation involving an agency contract or grant related to covered

funds.6

Enforcement

A person who believes that he or she has been subject to a reprisal prohibited by ARRA’s

whistleblower provisions may submit a complaint to the appropriate inspector general (IG).7

Although the IG retains discretion to not investigate complaints, it appears that an inspection will

be conducted unless the IG determines that the complaint is frivolous, does not relate to covered

funds, or another federal or state judicial or administrative proceeding has been invoked to

resolve the complaint.8 Upon completion of the investigation, the IG will submit findings to the

complainant, the employer, the head of the appropriate agency, and the Board. Within 30 days of

receiving the findings, the head of the agency concerned will determine whether there is sufficient

basis to conclude that the non-federal employer has subjected the complainant to a prohibited

reprisal. The agency head will either issue an order denying relief, or take one or more of the

following actions: (1) order the employer to take affirmative action to abate the reprisal; (2) order

reinstatement with back pay; (3) order the employer to pay an amount equal to the aggregate

amount of all costs and expenses that were reasonably incurred by the complainant.9 Any person

adversely affected or aggrieved by an order may obtain review in the U.S. court of appeals for the

circuit in which the reprisal is alleged to have occurred.10

Is there a private right of action?

Yes. If the head of an agency issues an order denying relief, has not issued an order within 210

days after the submission of a complaint, or the IG decides not to investigate or discontinues an

investigation, and there is no showing that the delay or decision is because of the bad faith of the

P.L. 111-5, § 1553(a), 123 Stat. 297 (2009).

P.L. 111-5, § 1553(b)(1), 123 Stat. 297 (2009).

Id.

P.L. 111-5, § 1553(c)(2), 123 Stat. 300 (2009).

P.L. 111-5, § 1553(c)(5), 123 Stat. 300 (2009).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

complainant, the complainant may bring a de novo action at law or equity against the employer in

the appropriate federal district court.11

Remedies

In a de novo action, a prevailing employee may be awarded compensatory damages, as well as

reinstatement with back pay and an amount equal to the aggregate amount of all costs and

expenses that were reasonably incurred.12

Years of Adoption and Relevant Amendments

Adopted 2009.

See P.L. 111-5, §1553, 123 Stat. 297 (2009).

Sponsor: Representative David R. Obey

Cosponsors: 9

House: Conference report agreed to in House. Agreed to by the Yeas and Nays: 246 - 183, 1

Present (Roll no. 70).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 60 - 38. Record Vote Number: 64.

Americans with Disabilities Act (ADA)

Coverage

The ADA prohibits discrimination against any individual because he or she has opposed any act

or practice made unlawful by the ADA or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under the

ADA.13

Enforcement

A person alleging discrimination under the ADA’s anti-retaliation provisions may file a charge

with the Equal Employment Opportunity Commission (EEOC) within 180 days after the alleged

unlawful employment practice occurred.14 Upon receipt of the charge, the EEOC will conduct an

P.L. 111-5, § 1553(c)(3), 123 Stat. 300 (2009).

Id.

42 U.S.C. § 12203(a).

42 U.S.C. § 2000e-5(b). If an aggrieved person has initially instituted proceedings with a state or local agency with

authority to grant or seek relief, the charge will be filed within 300 days after the alleged unlawful employment practice

occurred or within 30 days after receiving notice that the state or local agency has terminated the proceedings,

(continued...)

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

investigation. If the EEOC determines after the investigation that there is not reasonable cause to

believe that the charge is true, it will dismiss the charge and notify the claimant and respondent of

its action. If reasonable cause is found, the EEOC will attempt to eliminate the alleged unlawful

employment practice by informal methods of conference, conciliation, and persuasion.15 The

EEOC will make its determination as promptly as possible and, so far as practicable, no later than

120 days from the filing of the charge or, in specified circumstances, the date upon which the

EEOC is authorized to take action with respect to the charge. If the EEOC is unable to secure

from the respondent an acceptable conciliation agreement, it may bring a civil action against the

respondent, so long as the respondent is not a government, governmental agency, or political

subdivision. In cases involving such entities, the EEOC will refer the case to the Attorney

General, who may bring a civil action in the appropriate federal district court.16

Is there a private right of action?

Yes. If the EEOC dismisses a charge, a civil action is not filed by the EEOC or the Attorney

General, or if the EEOC has not entered into a conciliation agreement involving the aggrieved

party, such person may file a civil action in any judicial district in the state in which the unlawful

employment practice is alleged to have been committed, in the judicial district in which the

relevant employment records are maintained or administered, or in the judicial district in which

the person would have worked but for the alleged practice.17 If the respondent is not found in any

of these districts, the action may be brought in the judicial district in which the respondent has its

principal office.

Remedies

If a court finds that the respondent has intentionally engaged in or is intentionally engaging in an

unlawful employment practice, it may enjoin the respondent from engaging in such practice and

order such affirmative action as may be appropriate, including reinstatement or any other

equitable relief.18 A reasonable attorney’s fee, including litigation expenses and costs, may be

awarded.19

Years of Adoption and Relevant Amendments

Adopted 1990.

(...continued)

whichever is earlier.

Id.

42 U.S.C. § 2000e-5(f)(1).

42 U.S.C. § 2000e-5(f)(3).

42 U.S.C. § 2000e-5(g)(1).

42 U.S.C. § 12205.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Asbestos Hazard Emergency Response Act

(AHERA)

Coverage

The AHERA prohibits an employer, including a state or local education agency, from discharging

or otherwise discriminating against an employee for providing information related to a potential

violation of its provisions to any other person, including a state or the federal government.20

Enforcement

An employee or representative of employees who believes that he or she has been discharged or

otherwise discriminated against in violation of the AHERA’s whistleblower provisions may apply

to the Secretary of Labor for a review of the termination or alleged discrimination within 90 days

after the alleged violation occurs.21 The review will be conducted in accordance with section

660(c) of Title 29, U.S. Code. Under section 660(c), the Secretary will institute an investigation

as he deems appropriate. If the Secretary determines that a violation has occurred, he will bring

an action in any appropriate federal district court.

Is there a private right of action?

No.

Remedies

A federal district court that finds a violation of the AHERA may order all appropriate relief

including reinstatement with back pay.22

Years of Adoption and Relevant Amendments

Adopted 1986.

Clean Air Act (CAA)

Coverage

The CAA prohibits an employer from discharging or otherwise discriminating against any

employee because the employee (1) commenced or is about to commence a proceeding under the

15 U.S.C. § 2651.

15 U.S.C. § 2651(b).

29 U.S.C. § 660(c)(2).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

CAA or a proceeding for the administration or enforcement of any requirement imposed by the

CAA; (2) testified or is about to testify in any such proceeding; or (3) assisted or participated, or

is about to assist or participate, in any manner in such a proceeding.23

Enforcement

Any employee who believes that he or she has been discharged or otherwise discriminated against

in violation of the CAA may, within 30 days after such violation occurs, file a complaint with the

Secretary of Labor. Upon receipt of the complaint, the Secretary will conduct an investigation and

within 30 days of the receiving the complaint, shall notify the complainant and the alleged

violator with the results of the investigation. Within 90 days of receipt of the complaint, the

Secretary will issue an order either providing relief or denying the complaint.

Any person adversely affected or aggrieved by an order issued under the CAA’s whistleblower

provisions may obtain review of the order in the U.S. court of appeals for the circuit in which the

violation allegedly occurred. The petition for review must be filed within 60 days from the

issuance of the Secretary’s order, and the commencement of proceedings shall not, unless ordered

by the court, operate as a stay of the Secretary’s order.

Is there a private right of action?

No.

Remedies

If the Secretary determines that a violation has occurred, the Secretary will order the person who

committed such violation to (1) take affirmative action to abate the violation, and (2) reinstate the

complainant to his or her former position with compensation, including back pay, terms,

conditions, and privileges of employment. The Secretary may order the payment of compensatory

damages to the complainant. If an order is issued, at the request of the complainant, the Secretary

will assess against the person against whom the order is issued a sum equal to the aggregate

amount of all costs and expenses, including attorneys’ and expert witness fees, reasonably

incurred by the complainant in bringing the complaint.24

Years of Adoption and Relevant Amendments

Adopted 1977.

42 U.S.C. § 7622(a).

42 U.S.C. § 7622(b).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Commercial Motor Vehicle Safety Act (CMVSA)

Coverage

The CMVSA prohibits an employer from discharging, disciplining, or discriminating against an

employee regarding pay, terms, or privileges of employment because the employee (1) filed a

complaint or instituted a proceeding related to a violation of a commercial motor vehicle safety or

security regulation, standard, or order, or testified or will testify in such a proceeding; (2) is

perceived to have filed or instituted a proceeding related to a violation of a commercial motor

vehicle safety or security regulation, standard, or order; (3) refuses to operate a vehicle because

the operation violates a regulation, standard, or order related to commercial motor vehicle safety,

health, or security, or has a reasonable apprehension of serious injury because of the vehicle’s

hazardous safety or security condition; (4) has accurately reported hours on duty; (5) has

cooperated or is perceived as being about to cooperate with a safety or security investigation by

the Secretary of Transportation, the Secretary of Homeland Security, or the National

Transportation Security Board; or (6) has furnished or is perceived to have furnished specified

information to the Secretary of Transportation, the Secretary of Homeland Security, the National

Transportation Security Board, or any federal, state, or local regulatory or law enforcement

agency.25

Enforcement

An employee alleging discharge, discipline, or discrimination in violation of the CMVSA’s antiretaliation provisions may file a complaint with the Secretary of Labor within 180 days after the

alleged violation occurred.26 Within 60 days of receiving the complaint, the Secretary will

conduct an investigation, decide whether it is reasonable to believe the complaint has merit, and

notify the complainant and the person alleged to have committed the violation of the findings. If

the Secretary determines that it is reasonable to believe that the violation occurred, he will include

with the decision findings and a preliminary order that provides for affirmative action to abate the

violation, reinstatement, and compensatory damages, including back pay.27

The parties may object to the findings or order, and request a hearing within 30 days of the date

of notification of the findings. If a hearing is not requested, the preliminary order is final and not

subject to judicial review. A hearing will be conducted expeditiously, and not later than 120 days

after the end of the hearing, the Secretary will issue a final order.28 A person adversely affected by

the order may file a petition for review in the U.S. court of appeals for the circuit in which the

violation occurred or the person resided on the date of the violation. The petition for review must

be filed no later than 60 days after the order is issued.29

49 U.S.C. § 31105(a)(1).

49 U.S.C. § 31105(b)(1).

49 U.S.C. § 31105(b)(2)(A).

49 U.S.C. § 31105(b)(2)(C).

49 U.S.C. § 31105(d).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Is there a private right of action?

Yes. If the Secretary has not issued a final decision within 210 days after the filing of a complaint

and the delay is not because of the employee’s bad faith, the employee may bring an original

action at law or equity for de novo review in the appropriate federal district court.30

Remedies

A prevailing employee is entitled to affirmative action to abate the violation, reinstatement, and

compensatory damages, including back pay.31 Relief may also include punitive damages in an

amount not to exceed $250,000.32

Years of Adoption and Relevant Amendments

Adopted 1994.

Amended 2007.

See P.L. 110-53, § 1536, 121 Stat. 464 (2007).

Sponsor: Representative Bennie G. Thompson

Cosponsors: 205

House: Conference report agreed to in House. Agreed to by the Yeas and Nays: 371 - 40 (Roll no.

757).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 85 - 8. Record Vote Number: 284.

Comprehensive Environmental Response

Compensation and Liability Act (CERCLA)

Coverage

CERCLA, also known as the “Superfund” Act, prohibits an employer from firing or in any other

way discriminating against, or causing to be fired or discriminated against, any employee because

he or she (1) provided information to a state or to the federal government; (2) filed, instituted, or

49 U.S.C. § 31105(c).

49 U.S.C. § 31105(b)(3)(A).

49 U.S.C. § 31105(b)(3)(C).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

caused to be filed or instituted any proceeding under CERCLA; or (3) has testified or will testify

in a proceeding resulting from the administration or enforcement of CERCLA.33

Enforcement

Any employee who believes that he or she has been terminated or otherwise discriminated against

by any person in violation of CERCLA’s whistleblower provisions may, within 30 days, apply to

the Secretary of Labor for a review of the termination or alleged discrimination. Upon receipt of

such application, the Secretary will institute an investigation and upon receiving the investigation

report, make findings of fact.

If the Secretary finds that a violation occurred, he will issue a decision, incorporating an order

that requires the party committing the violation to take such affirmative action to abate the

violation as the Secretary deems appropriate, including reinstatement with compensation.34 If the

Secretary finds no violation, he will issue an order denying the application. An order issued by the

Secretary is subject to judicial review.35

Is there a private right of action?

No.

Remedies

A prevailing employee is entitled to such affirmative action to abate the violation as the Secretary

deems appropriate, including reinstatement with compensation.

Years of Adoption and Relevant Amendments

Adopted 1980.

Consumer Financial Protection Act (CFPA)

Coverage

The CFPA prohibits employers engaged in providing consumer financial products or services, and

employers that provide a material service in connection with the provision of such products or

services, from terminating or in any other way discriminating against a covered employee

because the employee has (1) provided, caused to be provided, or is about to provide or cause to

be provided, information relating to a violation of the CFPA or any other provision of law that is

subject to the jurisdiction of the Bureau of Consumer Financial Protection (Bureau) to the

42 U.S.C. § 9610(a).

42 U.S.C. § 9610(b).

Id.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

employer, the Bureau, or a state, local, or federal government authority or law enforcement

agency; (2) testified or will testify in any proceeding resulting from the administration or

enforcement of the CFPA or any other provision of law that is subject to the jurisdiction of the

Bureau; (3) filed, instituted, or caused to be filed or instituted any proceeding under any federal

consumer financial law; or (4) objected to or refused to participate in any activity that the

employee reasonably believed to be in violation of any law subject to the jurisdiction of, or

enforceable by, the Bureau.36

Enforcement

An employee who believes that he or she has been discharged or otherwise discriminated against

in violation of the CFPA’s whistleblower provisions may file a complaint with the Secretary of

Labor within 180 days of the alleged violation. Within 60 days after receiving the complaint, the

Secretary will initiate an investigation and determine whether there is reasonable cause to believe

that the complaint has merit. The Secretary will notify the complainant and the person alleged to

have committed the violation of his determination in writing. If the Secretary concludes that there

is reasonable cause to believe that a violation has occurred, he will also issue a preliminary order

that provides for affirmative action to abate the violation, reinstatement with back pay, and

compensatory damages.37 Either party may file objections to the Secretary’s findings or order and

request a hearing within 30 days after receiving his notification. If a hearing is not requested in

the 30-day period, the preliminary order shall be deemed a final order that is not subject to

judicial review.38

If a hearing is conducted, the Secretary is required to issue a final order providing relief or

denying the complaint within 120 days after the date of the hearing’s conclusion. Any person

adversely affected or aggrieved by a final order may seek review of the order in the U.S. court of

appeals for the circuit in which the violation allegedly occurred or the circuit in which the

complainant resided on the date of such violation.39 The petition for review must be filed no later

than 60 days after the date of the issuance of the final order.

Is there a private right of action?

Yes. If the Secretary does not issue a final order within 210 days after the date of filing the

complaint, or within 90 days after the date of receipt of a written determination, the complainant

may bring an action at law or equity for de novo review in the appropriate federal district court

having jurisdiction.40

12 U.S.C. § 5567(a). The term “covered employee” is defined to include “any individual performing tasks related to

the offering or provision of a consumer financial product or service.”

12 U.S.C. § 5567(c)(2)(B).

12 U.S.C. § 5567(c)(2)(C).

12 U.S.C. § 5567(c)(4)(E).

12 U.S.C. § 5567(c)(4)(D)(i).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Remedies

An employee who prevails in a private action may be awarded all relief necessary to make the

employee whole, including injunctive relief and compensatory damages.41

Years of Adoption and Relevant Amendments

Adopted 2010.

See P.L. 111-203, § 1057, 124 Stat. 2031 (2010).

Sponsor: Representative Barney Frank

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 237 - 192 (Roll no. 413).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 60 - 39. Record Vote Number: 208.

Consumer Product Safety Act (CPSA)

Coverage

The CPSA prohibits a manufacturer, private labeler, distributor, or retailer from discharging or

otherwise discriminating against an employee because he or she (1) provided, caused to be

provided, or is about to provide or cause to be provided information related to a violation of the

CPSA, any law enforced by the Consumer Product Safety Commission (CPSC), or any related

order, rule, regulation, standard, or ban, to the individual’s employer, the federal government, or

state attorney general; (2) testified or is about to testify in a proceeding concerning a violation of

the CPSA; (3) assisted or participated, or is about to assist or participate, in a proceeding

concerning a violation of the CPSA; or (4) refused to participate in any activity, policy, or

practice that the individual reasonably believed to be in violation of the CPSA, any law enforced

by the CPSC, or any related order, rule, regulation, standard, or ban.42

Enforcement

A person who believes that he or she was discharged or otherwise discriminated against in

violation of the CPSA’s whistleblower provisions may file a complaint with the Secretary of

Labor no later than 180 days after the date on which the violation occurs.43 Within 60 days of

receiving the complaint, the Secretary will initiate an investigation and determine whether there is

reasonable cause to believe that the complaint has merit. If reasonable cause is found, the

12 U.S.C. § 5567(c)(4)(D)(ii).

15 U.S.C. § 2087(a).

15 U.S.C. § 2087(b)(1).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Secretary will issue findings and a preliminary order that provides for affirmative action to abate

the violation, reinstatement with back pay, and the payment of compensatory damages to the

complainant.44 The parties may object to the findings or order, and request a hearing within 30

days of the date of notification of the findings. If a hearing is not requested within the 30-day

period, the preliminary order will be deemed a final order that is not subject to judicial review.45

If a hearing is requested, the Secretary will issue a final order no later than 120 days after the date

of the hearing.

Is there a private right of action?

Yes. A person may bring an action at law or equity for de novo review in the appropriate federal

district court with jurisdiction within 90 days after receiving a written determination, or if the

Secretary has not issued a final decision within 210 days after the filing of the complaint.46

Remedies

An employee who prevails in a private action may be awarded all relief necessary to make the

employee whole, including injunctive relief and compensatory damages.47

Years of Adoption and Relevant Amendments

Adopted 2008.

See P.L. 110-314, § 219(a), 122 Stat. 3062 (2008).

Sponsor: Representative Bobby L. Rush

Cosponsors: 106

House: Conference report agreed to in House. On motion to suspend the rules and agree to the

conference report Agreed to by the Yeas and Nays: (2/3 required): 424 - 1 (Roll no. 543).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 89 - 3. Record Vote Number: 193.

15 U.S.C. § 2087(b)(3)(B).

15 U.S.C. § 2087(2)(A).

15 U.S.C. § 2087(b)(4).

Id.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Department of Defense Authorization Act of 1987

Coverage

The Department of Defense Authorization Act of 1987 prohibits defense contractors and

subcontractors from discharging, demoting, or otherwise discriminating against an employee as a

reprisal for disclosing to a Member of Congress, an Inspector General (IG), and other specified

entities evidence of gross mismanagement or a substantial and specific danger to public health or

safety.48

Enforcement

Any person who believes that he or she has been subject to a prohibited reprisal may submit a

complaint to the IG, who is required to investigate the complaint unless the IG determines that the

complaint is frivolous, fails to allege a violation, or has previously been addressed in another

federal or state judicial or administrative proceeding. A complaint may not be brought more than

three years after the date on which the alleged reprisal occurred.49 Upon completion of the

investigation, the IG will submit a report of the findings of the investigation to the individual,

relevant contractor, and the head of the agency.50

If the agency head determines that a contractor has subjected a person to a prohibited reprisal, the

agency head may take one or more of the following actions: (1) order the contractor to abate the

reprisal; (2) order the contractor to reinstate the person to the position that the person held before

the reprisal, together with compensatory damages, employment benefits, and other applicable

terms and conditions of employment; (3) order the contractor to pay the complainant an amount

equal to the aggregate amount of all costs and expenses, including attorneys’ and expert

witnesses’ fees, that were reasonably incurred by the complainant.51 Any person adversely

affected or aggrieved by an order may obtain review in the U.S. court of appeals for the circuit in

which the reprisal occurred.52

Is there a private right of action?

Yes. If the head of an executive agency issues an order denying relief, or does not issue an order

within 210 days after the submission of a complaint and the delay is not the result of the

complainant’s bad faith, the complainant may bring a de novo action at law or equity against the

contractor in the appropriate federal district court.53 An action may not be brought more than two

years after the date on which remedies are deemed to be exhausted.

10 U.S.C. § 2409(a).

10 U.S.C. § 2409(b)(4).

10 U.S.C. § 2409(b)(1).

10 U.S.C. § 2409(c)(1).

10 U.S.C. § 2409(c)(3).

10 U.S.C. § 2409(c)(2).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Remedies

An employee who prevails in a private action may be awarded compensatory damages and other

relief available under the whistleblower provisions of the Department of Defense Authorization

Act of 1987.54

Years of Adoption and Relevant Amendments

Adopted 1986.

Amended 2013.

See P.L. 112-239, § 827(a)-(f), 126 Stat. 1833 (2013).

Sponsor: Representative Howard P. McKeon

Cosponsors: 1

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 315 - 107 (Roll no. 645).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 81 - 14. Record Vote Number: 229.

Dodd-Frank Wall Street Reform and Consumer

Protection Act (Dodd-Frank Act)

Coverage

The Dodd-Frank Act established several new whistleblower protections for individuals employed

in the financial services industry. Section 748 of the Dodd-Frank Act, for example, amended the

Commodity Exchange Act (CEA) to add a new section 23 that prohibits employers from

discharging or otherwise discriminating against an individual for providing information related to

a violation of the CEA to the Commodity Futures Trading Commission (CFTC) or for assisting in

any investigation or judicial or administrative action of the CFTC based upon or related to such

information.55

Section 922 of the Dodd-Frank Act amended the Securities Exchange Act of 1934 (SEA) to add a

new section 21F that prohibits employers from discharging or otherwise discriminating against an

individual for (1) providing information related to a violation of the securities laws to the

Securities and Exchange Commission (SEC); (2) initiating, testifying in, or assisting in any

investigation or judicial or administrative action of the SEC based upon or related to such

Id.

7 U.S.C. § 26.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

information; or (3) making disclosures that are required by SOX, the SEA, or any other law

subject to the SEC’s jurisdiction.56

Section 1057 of the Dodd-Frank Act prohibits employers engaged in providing consumer

financial products or services, and employers that provide a material service in connection with

the provision of such products or services, from terminating or in any other way discriminating

against a covered employee because the employee has (1) provided, caused to be provided, or is

about to provide or cause to be provided, information relating to a violation of Title X of the

Dodd-Frank Act or any other provision of law that is subject to the jurisdiction of the Bureau of

Consumer Financial Protection (Bureau) to the employer, the Bureau, or a state, local, or federal

government authority or law enforcement agency; (2) testified or will testify in any proceeding

resulting from the administration or enforcement of Title X of the Dodd-Frank Act or any other

provision of law that is subject to the jurisdiction of the Bureau; (3) filed, instituted, or caused to

be filed or instituted any proceeding under any federal consumer financial law; or (4) objected to

or refused to participate in any activity that the employee reasonably believed to be in violation of

any law subject to the jurisdiction of, or enforceable by, the Bureau.57

Enforcement

An individual who alleges a termination or other discrimination in violation of section 23 of the

CEA may bring an action in the appropriate district court of the United States.58 If the individual

is a federal employee, he or she must bring the action in accordance with section 1221 of title 5,

U.S. Code. An action may not be brought more than two years after the date on which the

violation is committed.

An individual who alleges a termination or other discrimination in violation of section 21F of the

SEA may bring an action in the appropriate district court of the United States.59 An action may

not be brought more than six years after the date on which the violation occurred or more than

three years after the date when facts material to the right of action are known or reasonably

should have been known by the complainant.60

An employee who believes that he or she has been discharged or otherwise discriminated against

in violation of the section 1057 whistleblower provisions may file a complaint with the Secretary

of Labor within 180 days of the alleged violation.61 Within 60 days after receiving the complaint,

the Secretary will initiate an investigation and determine whether there is reasonable cause to

believe that the complaint has merit. The Secretary will notify the complainant and the person

alleged to have committed the violation of her determination in writing. If the Secretary

concludes that there is reasonable cause to believe that a violation has occurred, she will also

issue a preliminary order that provides affirmative action to abate the violation, reinstatement

with back pay, and compensatory damages.62

15 U.S.C. § 78u-6(h)(1)(A).

12 U.S.C. § 5567(a).

7 U.S.C. § 26(h)(1)(B).

15 U.S.C. § 78u-6(h)(1)(B)(i).

15 U.S.C. § 78u-6(h)(1)(B)(iii).

12 U.S.C. § 5567(c)(1)(A).

12 U.S.C. § 5567(c)(2)(B).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Either party may file objections to the Secretary’s findings or order and request a hearing within

30 days after receiving her notification. If a hearing is not requested in the 30-day period, the

preliminary order shall be deemed a final order that is not subject to judicial review. 63 Any

person adversely affected or aggrieved by a final order may seek review of the order in the U.S.

court of appeals for the circuit in which the violation allegedly occurred or the circuit in which

the complainant resided on the date of such violation.64 A petition for review must be filed no

later than 60 days after the date of the issuance of the final order.

Is there a private right of action?

Yes. Under section 23 of the CEA and section 21F of the SEA, an individual may bring an action

in the appropriate district court of the United States. Under section 1057 of the Dodd-Frank Act,

the complainant may bring an action at law or equity for de novo review in the appropriate

federal district court having jurisdiction if the Secretary has not issued a final order within 210

days after the date the complaint was filed, or within 90 days after the date of receipt of a written

determination.65

Remedies

An individual who prevails in an action under section 23 of the CEA is entitled to reinstatement,

back pay with interest, and compensation for any special damages sustained as result of the

discharge or discrimination, including litigation costs and reasonable attorney’s fees.66

An individual who prevails in an action under section 21F of the SEA is entitled to reinstatement,

two times the amount of back pay otherwise owed to the individual, including interest, and

compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees.67

An individual who prevails in a private action under section 1057 of the Dodd-Frank Act may be

awarded all relief necessary to make the person whole, including injunctive relief and

compensatory damages.68

Years of Adoption and Relevant Amendments

Adopted 2010.

See P.L. 111-203, §§ 748, 922, 1057, 124 Stat. 1376 (2010).

Sponsor: Representative Barney Frank

12 U.S.C. § 5567(c)(2)(C).

12 U.S.C. § 5567(c)(3)(E).

12 U.S.C. § 5567(c)(4)(D)(i).

7 U.S.C. § 26(h)(1)(C).

15 U.S.C. § 78u-6(h)(1)(C).

12 U.S.C. § 5567(c)(4)(D)(ii).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 237 - 192 (Roll no. 413).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 60 – 39. Record Vote Number: 208.

Employee Polygraph Protection Act (EPPA)

Coverage

The EPPA prohibits an employer from discharging or otherwise discriminating against an

employee or prospective employee because such individual (1) has filed a complaint, or instituted

or caused to be instituted any proceeding under or related to the EPPA; (2) has testified or is

about to testify in any such proceeding; or (3) has exercised any right afforded by the EPPA.69

Enforcement

The Secretary of Labor may bring an action to restrain violations of the EPPA.70

Is there a private right of action?

Yes. An aggrieved employee or prospective employee may bring an action in any federal or state

court of competent jurisdiction no later than three years after the date of the alleged violation.71

Remedies

An employer that violates the EPPA’s anti-retaliation provisions will be liable for such legal or

equitable relief as may be appropriate, including reinstatement and the payment of lost wages and

benefits.72

Years of Adoption and Relevant Amendments

Adopted 1988.

29 U.S.C. § 2002(4).

29 U.S.C. § 2005(b).

29 U.S.C. § 2005(c)(2).

29 U.S.C. § 2005(c)(1).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Employee Retirement Income Security Act (ERISA)

Coverage

ERISA prohibits any person from discharging, fining, suspending, expelling, disciplining, or

discriminating against a participant or beneficiary for (1) exercising any right to which he or she

is entitled under the provisions of an employee benefit plan, section 1201 of title 29, U.S. Code,

or the Welfare and Pension Plans Disclosure Act; or (2) giving information, testifying, or being

about to testify in any inquiry or proceeding related to ERISA or the Welfare and Pension Plans

Disclosure Act.73 In the case of a multiemployer plan, it is unlawful for the plan sponsor or any

other person to discriminate against any contributing employer for exercising rights under ERISA

or for giving information or testifying in any inquiry or proceeding before Congress related to

ERISA.74

Enforcement

A civil action may be brought by the Secretary of Labor to enjoin any act or practice which

violates ERISA’s anti-retaliation provisions, or to obtain other appropriate equitable relief to

redress the violation or enforce ERISA’s anti-retaliation provisions.75 The federal district courts

have exclusive jurisdiction for these actions.

Is there a private right of action?

Yes. A civil action may be brought by a participant or beneficiary to enjoin any act or practice

which violates ERISA’s anti-retaliation provisions, or to obtain other appropriate equitable relief

to redress the violation or enforce ERISA’s anti-retaliation provisions.76 The federal district courts

have exclusive jurisdiction for these actions.

Remedies

If a court concludes that a violation of ERISA’s anti-retaliation provisions has occurred, it may

enjoin the offending act or practice, or order other appropriate equitable relief to redress the

violation or enforce ERISA’s anti-retaliation provisions. A court, in its discretion, may allow a

reasonable attorney’s fee and costs of action.77

Years of Adoption and Relevant Amendments

Adopted 1974.

29 U.S.C. § 1140.

Id.

29 U.S.C. § 1132(a)(5).

29 U.S.C. § 1132(a)(3).

29 U.S.C. § 1132(g)(1).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Amended 2006.

See P.L. 109-280, § 205, 120 Stat. 889 (2006).

Sponsor: Representative John Boehner

Cosponsors: 4

House: Passed by recorded vote: 279 - 131, 1 Present (Roll no. 422).

Senate: Passed without amendment by Yea-Nay Vote. 93 - 5. Record Vote Number: 230.

Energy Reorganization Act of 1974 (ERA)

Coverage

The ERA prohibits an employer from discharging or otherwise discriminating against any

employee who (1) notified his or her employer of an alleged violation of the ERA or the Atomic

Energy Act of 1954 (AEA); (2) refused to engage in any unlawful practice under the ERA or

AEA, if the employee identified the alleged illegality to the employer; (3) testified before

Congress or at any federal or state proceeding regarding any provision of the ERA or AEA; (4)

commenced a proceeding under the ERA or AEA; (5) testified or is about to testify in any such

proceeding; or (6) assisted or participated or is about to assist or participate in a proceeding to

carry out the purposes of the ERA or AEA.78

Enforcement

Any employee who believes that he or she has been discharged or otherwise discriminated against

in violation of the ERA’s whistleblower provisions may, within 180 days after such violation

occurs, file a complaint with the Secretary of Labor alleging such discharge or discrimination.79

Upon receipt of a complaint, the Secretary will complete an investigation within 30 days. Within

90 days of receiving the complaint, the Secretary will, unless the proceeding is terminated due to

a settlement, issue an order either denying the complaint or providing for affirmative action to

abate the violation and reinstatement with back pay.80 If the Secretary determines that a violation

has occurred, he will issue a final order. Any person adversely affected or aggrieved by an order

may obtain review in the U.S. Court of appeals for the circuit in which the violation allegedly

occurred.81 A petition for review must be filed within 60 days from the issuance of the order.

42 U.S.C. § 5851(a)(1).

42 U.S.C. § 5851(b)(1).

42 U.S.C. § 5851(b)(2)(A).

42 U.S.C. § 5851(c)(1).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Is there a private right of action?

Yes. If the Secretary has not issued a final decision within one year after the filing of a complaint

and there is no showing that the delay is because of the complainant’s bad faith, the complainant

may bring an action at law or equity for de novo review in the appropriate federal district court.82

Remedies

A prevailing employee is entitled to affirmative action to abate the violation and reinstatement

with back pay. Compensatory damages may also be awarded.

Years of Adoption and Relevant Amendments

Adopted 1974.

Amended 2005.

See P.L. 109-58, § 629, 119 Stat. 785 (2005).

Sponsor: Representative Joe Barton

Cosponsors: 2

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 275 - 156 (Roll no. 445).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 74 - 26. Record Vote Number: 213.

Fair Labor Standards Act (FLSA)

Coverage

The FLSA prohibits an employer from discharging or otherwise discriminating against an

employee because such employee filed a complaint or instituted any proceeding under the statute,

testified or is about to testify in any such proceeding, or served or is about to serve on an industry

committee.83

Enforcement

An action may be maintained against any employer, including a public agency, in any federal or

state court of competent jurisdiction by any one or more employees. An employee loses his or her

42 U.S.C. § 5851(b)(4).

29 U.S.C. § 215(a)(3).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

right to file a complaint under the FLSA’s anti-retaliation provisions once the Secretary of Labor

files a complaint against the employer.84

Is there a private right of action?

Yes.

Remedies

Employers who willfully violate the FLSA’s anti-retaliation provisions may be fined up to

$10,000 and imprisoned up to six months. Employers who retaliate against employees in

violation of this provision shall be liable for legal and equitable relief, including, without

limitation, reinstatement, the payment of lost wages, and an additional equal amount as liquidated

damages.

The court will, in addition to any judgment awarded, allow reasonable attorneys’ fees to be paid

to the plaintiff, as well as the costs of the action.

Years of Adoption and Relevant Amendments

Adopted 1938.

Family and Medical Leave Act (FMLA)

Coverage

The FMLA prohibits an employer from discharging or otherwise discriminating against any

individual because he or she (1) has opposed any practice made unlawful by the FMLA; (2) has

filed a charge, or instituted or caused to be instituted any proceeding under or related to the

FMLA; (3) has given or is about to give any information in connection with any inquiry or

proceeding related to any right provided under the FMLA; or (4) has testified or is about to testify

in any inquiry or proceeding related to any right provided under the FMLA.85

Enforcement

The Secretary of Labor will receive, investigate, and attempt to resolve complaints that allege

violations of the FMLA’s anti-retaliation provisions, and may bring an action in any court of

competent jurisdiction.86

29 U.S.C. § 216(b).

29 U.S.C. § 2615.

29 U.S.C. § 2617(b).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Is there a private right of action?

Yes. An aggrieved employee may bring an action to recover damages or obtain equitable relief in

any federal or state court of competent jurisdiction.87 In cases other than those involving a willful

violation, an action must be brought within two years of the date of the last event constituting the

alleged violation.88 In cases involving a willful violation, an action must be brought within three

years of the date of the last event constituting the alleged violation.89

Remedies

An employer that violates the FMLA’s anti-retaliation provisions will be liable for damages equal

to the following: (1) the amount of any wages, salary, benefits, or other compensation lost

because of the violation, or, if there has been no such loss, the amount of any actual monetary

losses sustained as a direct result of the violation, such as the cost of providing care, up to a sum

equal to 12 weeks of wages or salary; (2) the interest on the aforementioned amount; and (3) an

additional amount as liquidated damages.90 The employer will also be liable for such equitable

relief as may be appropriate, including reinstatement.

Years of Adoption and Relevant Amendments

Adopted 1993.

FBI Employee Whistleblower Protections

Coverage

Applicants and employees of the Federal Bureau of Investigation (FBI) are protected from

retaliatory personnel actions taken because the employee disclosed information to the Attorney

General that the employee reasonably believes evidences a violation of any law, rule, or

regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and

specific danger to public health or safety.91

Enforcement

According to regulations promulgated under the statute, an FBI employee who believes that a

retaliatory personnel action has been taken may report the alleged reprisal to the FBI’s

Investigative Offices. Within 15 calendar days of receipt, the office conducting the investigation

(Conducting Office) shall provide written notice of receipt of the allegation to the person who

made it (the complainant) and shall conduct an investigation to determine whether there are

29 U.S.C. § 2617(a)(2).

29 U.S.C. § 2617(c)(1).

29 U.S.C. § 2617(c)(2).

29 U.S.C. § 2617(a)(1).

5 U.S.C. § 2303(a).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

reasonable grounds to believe that a reprisal has been or will be taken. Within 90 days of

providing such notice to the complainant, and at least every 60 calendar days thereafter, the

Conducting Office shall notify the complainant of the status of the investigation. Within 240 days

of receiving the allegation, the office will determine whether there are reasonable grounds to

believe that a retaliatory personnel action has been or will be taken, unless the complainant agrees

to an extension.92

Is there a private right of action?

No.

Remedies

If the Conducting Office determines there are reasonable grounds to believe that a reprisal has

been taken, it will report this to the Director of the Office of Attorney Recruitment and

Management, Department of Justice (Director) along with recommendations for corrective action.

The Conducting Office may request the Director to order a stay of any personnel action for 45

calendar days, which may be extended.

Within 60 days of being notified that an investigation has ended—or at any time after 120 days

from the date that the complainant first reported the alleged reprisal, if the complainant has not

been notified by the Conducting Office that it will seek corrective action—the complainant may

request corrective action directly to the Director. In such cases, the complainant may request the

Director to order a stay of any personnel action allegedly taken or to be taken in reprisal for a

protected disclosure.

Based upon all the evidence,93 the Director will determine whether a protected disclosure was a

contributing factor in a personnel action. If the Director makes such a determination, the Director

will order corrective action unless the FBI demonstrates by clear and convincing evidence that it

would have taken the same personnel action in the absence of the disclosure. Corrective action

may include placing the complainant, as nearly as possible, in the position he would have been in

had the reprisal not taken place; reimbursement for attorney’s fees, reasonable costs, medical

costs incurred, and travel expenses; back pay and related benefits; and any other reasonable and

foreseeable consequential damages.94

Years of Adoption and Relevant Amendments

Adopted 1978.

28 C.F.R. § 27.3.

The Director may conclude that the disclosure was a contributing factor in the personnel action based upon

circumstantial evidence, such as evidence that the employee taking the personnel action knew of the disclosure and that

the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure

was a contributing factor in the personnel action. 28 C.F.R. § 27.4(e).

28 C.F.R. § 27.4.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

FDA Food Safety Modernization Act (FDA

Modernization Act)

Coverage

The FDA Modernization Act amended the Federal Food, Drug, and Cosmetic Act to prohibit an

entity engaged in the manufacture, processing, packing, transporting, distribution, reception,

holding, or importation of food from discharging or otherwise discriminating against an employee

with respect to the individual’s compensation, terms, conditions, or privileges of employment

because the employee (1) provided, caused to be provided, or is about to provide or cause to be

provided information relating to a violation of the Federal Food, Drug, and Cosmetic Act to the

employer, the federal government, or the attorney general of a state; (2) testified or is about to

testify in a proceeding concerning the violation; (3) assisted or participated or is about to assist or

participate in a proceeding concerning the violation; or (4) objected to, or refused to participate in

any activity that the employee believed to be in violation of the Federal Food, Drug, and

Cosmetic Act.95

Enforcement

An individual who believes that he or she has been discharged or otherwise discriminated against

in violation of the relevant whistleblower provisions may file a complaint with the Secretary of

Labor within 180 days after the date on which the violation occurs.96 Within 60 days of receiving

the complaint, the Secretary will initiate an investigation and determine whether there is

reasonable cause to believe that the complaint has merit. If the Secretary determines that

reasonable cause exists, he will accompany his findings with a preliminary order that requires the

person who committed the violation to take affirmative action to abate the violation, to reinstate

the complainant with back pay, and to provide compensatory damages. The person alleged to

have committed the violation or the complainant may file objections to the findings or the order

and request a hearing. A final order must be issued by the Secretary within 120 days after the date

of the hearing’s conclusion. Any person adversely affected or aggrieved by a final order may

obtain review in the U.S. court of appeals for the circuit in which the violation occurred or the

circuit in which the complainant resided on the date of the violation.97 A petition for review must

be filed no later than 60 days after the date of the issuance of the final order.

Is there a private right of action?

Yes. If the Secretary has not issued a final decision within 210 days after the filing of the

complaint, or within 90 days after receiving a written determination, the complainant may bring

an action at law or equity for de novo review in the appropriate federal district court having

jurisdiction.98

21 U.S.C. § 399d(a).

21 U.S.C. § 399d(b)(1).

21 U.S.C. § 399d(b)(5)(A).

21 U.S.C. § 399d(b)(4)(A).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Remedies

An employee who prevails in a private action may be awarded all relief necessary to make the

individual whole, including injunctive relief and compensatory damages.99

Years of Adoption and Relevant Amendments

Adopted 2011.

See P.L. 111-353, § 402, 124 Stat. 3968 (2011).

Sponsor: Representative Betty Sutton

Cosponsors: 59

House: Resolving differences - On motion that the House agree to the Senate amendments Agreed

to by the Yeas and Nays: 215 - 144 (Roll no. 661).

Senate: Passed Senate with an amendment and an amendment to the Title by Voice Vote.

Federal Mine Safety and Health Act (FMSHA)

Coverage

The FMSHA prohibits an employer from discharging an employee or applicant for employment

because the individual (1) filed or made a complaint under or related to the FMSHA; (2) is the

subject of medical evaluations and potential transfer; (3) instituted or testified in any proceeding

under or related to the FMSHA; or (4) exercised any statutory right afforded by the FMSHA.100

Enforcement

Employees and applicants who believe that they have been discharged, interfered with, or

otherwise discriminated against in violation of this prohibition may file a complaint with the

Secretary of Labor within 60 days after the alleged violation. Upon receipt of the complaint, the

Secretary will forward a copy to the respondent and within 15 days of receiving the complaint,

the Secretary will institute an investigation as he deems appropriate. If the Secretary determines

that the complaint was not brought frivolously, the Federal Mine Safety and Health Review

Commission (Commission) will order the immediate reinstatement of the miner pending a final

order. If the Secretary determines that the FMSHA’s whistleblower provisions have been violated,

he will immediately file a complaint with the Commission, with service upon the alleged violator

and miner, proposing an order granting appropriate relief. The Commission shall afford an

21 U.S.C. § 399d(b)(4)(B).

30 U.S.C. § 815(c)(1).

100

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

opportunity for a hearing and shall issue an order affirming, modifying, or vacating the

Secretary’s proposed order, or directing other appropriate relief.101

Is there a private right of action?

Yes. Within 90 days of receiving a complaint, the Secretary will notify the miner about whether a

violation occurred. If the Secretary determines that the FMSHA’s whistleblower provisions were

not violated, the complainant will have the right, within 30 days of notice of the Secretary’s

determination, to file an action in his or her own behalf before the Commission. The Commission

shall afford an opportunity for a hearing and shall issue an order, granting such relief as it deems

appropriate. Whenever an order is issued sustaining a complainant’s charges, a sum equal to the

aggregate amount of all costs and expenses, including attorneys’ fees, will be assessed against the

person who committed the violation. Any person adversely affected by such an order may obtain

review in any U.S. court of appeals for the circuit in which the violation is alleged to have

occurred or in the U.S. Court of Appeals for the D.C. Circuit.102

Remedies

The Commission may require a person committing a violation to abate the violation as the

Commission deems appropriate, including reinstatement with back pay and interest. When the

Commission issues an order that sustains a complainant’s charges, a sum equal to the aggregate

amount of all costs and expenses, including attorneys’ fees, will be assessed against the person

who committed the violation.

Years of Adoption and Relevant Amendments

Adopted 1969.

Amended 1977, 1984.

Federal Railroad Safety Act (FRSA)

Coverage

The FRSA prohibits a railroad carrier engaged in interstate or foreign commerce, a contractor or

subcontractor of such a carrier, or an officer or employee of such a carrier, from discharging or

otherwise discriminating against an employee because he or she (1) provides or is about to

provide information, or otherwise directly assists in an investigation regarding conduct that the

individual believes is a violation of a federal law, rule, or regulation relating to railroad safety or

security, or constitutes gross fraud, waste, or abuse of a federal grant or other public funds

intended to be used for railroad safety or security, if the information or assistance is provided to

specified government entities or a person with supervisory authority over the employee; (2)

101

102

30 U.S.C. § 815(c)(2).

30 U.S.C. § 816.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

refuses to violate or assist in the violation a federal law, rule, or regulation related to railroad

safety or security; (3) files a complaint, causes a proceeding to enforce the FRSA or railroad

safety or security, or testifies in that proceeding; (4) notifies or attempts to notify the railroad

carrier or the Secretary of Transportation of a work-related personal injury or work-related illness

of an employee; (5) cooperates with a safety or security investigation by the Secretary of

Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board;

(6) furnishes information to specified entities related to an railroad accident or incident resulting

in injury or death to an individual or damage to property; or (7) accurately reports hours on duty

pursuant to the Hours of Service Act.103

In addition, a railroad carrier engaged in interstate or foreign commerce, or an officer or

employee of such a carrier, may not discharge or otherwise discriminate against an employee for

(1) reporting, in good faith, a hazardous safety or security condition; (2) refusing to work when

confronted by a hazardous safety or security issue, if certain conditions exist; or (3) refusing to

authorize the use of safety-related equipment, track, or structures, if the employee is responsible

for the inspection or repair of such items and believes that they are in a hazardous safety or

security state.104

Enforcement

A person who believes that he or she has been discharged or otherwise discriminated against in

violation of the FRSA’s whistleblower provisions may file a complaint with the Secretary of

Labor no later than 180 days after the date on which the violation occurs.105 Within 60 days of

receiving the complaint, the Secretary of Labor will conduct an investigation and determine

whether there is reasonable cause to believe that the case has merit. If reasonable cause is found,

the Secretary will issue findings and a preliminary order that provides for affirmative action to

abate the violation, reinstatement with back pay, and the payment of compensatory damages to

the complainant.106 The parties may object to the findings or order, and request a hearing within

30 days of the date of notification of the findings. If a hearing is not requested within the 30-day

period, the preliminary order will be deemed a final order that is not subject to judicial review. If

a hearing is requested, the Secretary will issue a final order no later than 120 days after the date of

the hearing.107 Any person adversely affected or aggrieved by the Secretary’s final order may

obtain review of the order in the U.S. Court of Appeals for the circuit in which the violation

allegedly occurred or the circuit in which the complainant resided on the date of the violation.108

103

49 U.S.C. § 20109(a).

49 U.S.C. § 20109(b).

105

49 U.S.C. § 42121(b). The Federal Railroad Safety Act indicates that whistleblower claims will be governed by the

rules and procedures established by 49 U.S.C. § 42121(b). But see 49 U.S.C. § 20109(d)(2)(A)(ii) (prescribing a 180

day filing period rather than 90 days).

106

49 U.S.C. § 42121(b)(2).

107

49 U.S.C. § 42121(b)(3).

108

49 U.S.C. § 20109(d)(4).

104

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Is there a private right of action?

Yes. If the Secretary of Labor has not issued a final decision within 210 days after the filing of the

complaint and if the delay is not because of the employee’s bad faith, the employee may bring an

original action at law or equity for de novo review in the appropriate federal district court.109

Remedies

A prevailing employee is entitled to all relief necessary to make the employee whole, including

reinstatement with back pay and compensatory damages.110 Punitive damages in an amount not to

exceed $250,000 may also be awarded.111

Years of Adoption and Relevant Amendments

Adopted 1994.

Amended 2007.

See P.L. 110-53, § 1521, 121 Stat. 444 (2007).

Sponsor: Representative Bennie G. Thompson

Cosponsors: 205

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 371 - 40 (Roll no. 757).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 85 - 8. Record Vote Number: 284.

Federal Water Pollution Control Act (Clean Water

Act)

Coverage

The Clean Water Act prohibits an employer from firing or otherwise discriminating against an

employee, or causing such firing or discrimination, because the employee has filed, instituted, or

caused to be filed or instituted any proceeding under the Clean Water Act, or has testified or is

109

49 U.S.C. § 20109(d)(3).

49 U.S.C. § 20109(e).

111

49 U.S.C. § 20109(e)(3).

110

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

about to testify in any proceeding resulting from the administration or enforcement of the Clean

Water Act.112

Enforcement

Any employee who believes that he or she has been fired or discriminated against in violation of

the Clean Water Act’s anti-retaliation provisions may, within 30 days after such alleged violation

occurs, apply to the Secretary of Labor for a review. Upon receipt of such application, the

Secretary will institute an investigation as he or she deems appropriate. Upon receiving the report

of such investigation, the Secretary will make findings of fact; if he finds that such violation did

occur, the Secretary will issue a decision, incorporating an order and findings, requiring the party

committing such violation to take such affirmative action to abate the violation, including the

rehiring or reinstatement of the employee with compensation. If the Secretary finds that there was

no such violation, she will issue an order denying the application; such order shall be subject to

judicial review in the same manner as orders and decisions are subject to judicial review under

the Clean Water Act. Whenever an order is issued, at the request of the applicant, a sum equal to

the aggregate amount of all costs and expenses, including attorneys’ fees, determined to have

been reasonably incurred by the applicant, will be assessed against the person committing the

violation.113

Is there a private right of action?

No.

Remedies

A prevailing employee is entitled to such affirmative action to abate the violation as the Secretary

deems appropriate, including rehiring or reinstatement with compensation. When an order is

issued, at the request of the applicant, a sum equal to the aggregate amount of all costs and

expenses, including attorneys’ fees, determined to have been reasonably incurred, will be

assessed against the person committing the violation.

Years of Adoption and Relevant Amendments

Adopted 1972.

112

113

33 U.S.C. § 1367(a).

33 U.S.C. § 1367(c).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

International Safe Container Act (ISCA)

Coverage

The ISCA prohibits a person from discharging or discriminating against an employee because the

employee has reported the existence of an unsafe container, a violation of the ISCA, or a

regulation prescribed under the ISCA.114

Enforcement

An employee who believes that he or she has been discharged or discriminated against in

violation of the ISCA’s whistleblower provisions may file a complaint with the Secretary of Labor

within 60 days of the violation.115 The Secretary may investigate the complaint and bring a civil

action in an appropriate federal district court if he finds that there has been a violation.

Is there a private right of action?

No.

Remedies

A court may restrain violations and order appropriate relief, including reinstatement of the

employee with back pay.116

Years of Adoption and Relevant Amendments

Adopted 2006.

See P.L. 109-304, § 11, 120 Stat. 1697 (2006).

Sponsor: Representative F. James Sensenbrenner, Jr.

Cosponsors: 1

House: On motion to suspend the rules and pass the bill, as amended Agreed to by voice vote.

Senate: Passed Senate without amendment by Unanimous Consent.

114

46 U.S.C. § 80507(a).

46 U.S.C. § 80507(b).

116

46 U.S.C. § 80507(c).

115

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Longshore and Harbor Workers’ Compensation Act

(LHWCA)

Coverage

The LHWCA prohibits an employer from discharging or otherwise discriminating against an

employee who claims or attempts to claim compensation from the employer, or testifies or is

about to testify against the employer in a proceeding under the statute.117

Enforcement

An employee who believes that he or she has been discharged or otherwise discriminated against

in violation of the LHWCA’s anti-retaliation provisions may file a complaint with a district

director of the Office of Workers’ Compensation Programs. Within five days of receiving such a

complaint, the district director will initiate specific inquiry to determine all the facts and

circumstances pertaining to the complaint.118 If the district director determines that the employee

has been discharged or suffered discrimination and is able to resume his or her duties, the district

director will recommend reinstatement and/or restitution as is indicated by the circumstances of

the case.119 If the employer and the employee accept the district director’s recommendation, it

will be incorporated in an order and sent to each party. If the parties do not agree to the

recommendation, the district director will prepare a memorandum summarizing the disagreement

and refer the case to the Office of the Chief Administrative Law Judge, Department of Labor, for

hearing.120 The Office of Administrative Law Judges is responsible for final determinations of all

disputed issues connected with the discrimination complaint.121

Is there a private right of action?

No.

Remedies

Any employee that is discriminated against will be restored to his or her employment and shall be

compensated for any loss of wages arising from the discrimination, provided that if the employee

ceases to be qualified to perform the duties of employment, he or she will not be entitled to such

restoration and compensation. The employer and not his insurance carrier will be liable for such

penalties and payments, and any provision in an insurance policy undertaking to relieve the

employer from the liability for such penalties and payments shall be void.122

117

33 U.S.C. § 948a.

20 C.F.R. § 702.271(b).

119

20 C.F.R. § 702.272(a).

120

20 C.F.R. § 702.272(b).

121

20 C.F.R. § 702.273.

122

33 U.S.C. § 948a.

118

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Years of Adoption and Relevant Amendments

Adopted 1972.

Amended 1984.

Migrant and Seasonal Agricultural Worker

Protection Act (MSAWPA)

Coverage

The MSAWPA prohibits an employer from intimidating, threatening, restraining, coercing,

blacklisting, discharging, or in any manner discriminating against any migrant or seasonal

agricultural worker because such worker has, with just cause, filed a complaint or instituted, or

caused to be instituted, any proceeding under the statute’s anti-retaliation provisions.123 Any

employee who has testified or is about to testify in any such proceeding or justifiably exercises

any right or protection afforded by MSAWPA is also protected from retaliatory action.

Enforcement

An employee who believes, with just cause, that he or she has been discriminated against in

violation of the MSAWPA’s anti-retaliation provisions may file a complaint with the Secretary of

Labor within 180 days of the violation. As he deems appropriate, the Secretary will institute an

investigation and, upon determining that a violation has occurred, will bring an action in any

appropriate federal district court.124

Is there a private right of action?

No.

Remedies

In an action brought by the Secretary, the federal district court has jurisdiction, for cause shown,

to restrain the violation and order all appropriate relief, including reinstatement with back pay or

damages.125

Years of Adoption and Relevant Amendments

Adopted 1983.

123

29 U.S.C. § 1855(a).

29 U.S.C. § 1855(b).

125

Id.

124

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Moving Ahead for Progress in the 21st Century Act

(MAP-21)

Coverage

MAP-21 prohibits a motor vehicle manufacturer, part supplier, or dealership from discharging or

otherwise discriminating against an employee because he or she (1) provided, caused to be

provided, or is about to provide or cause to be provided to his or her employer or the Secretary of

Transportation information related to a motor vehicle defect, noncompliance, or any violation or

alleged violation of any notification or reporting requirement of chapter 301, title 49, U.S. Code;

(2) filed, caused to be filed, or is about to file or cause to be filed a proceeding related to any

violation or alleged violation of any notification or reporting requirement of chapter 301, title 49,

U.S. Code; (3) testified or is about to testify in such a proceeding; (4) assisted, participated in, or

is about to assist or participate in such a proceeding; or (5) objected or refused to participate in an

activity that he or she reasonably believed to be in violation of any provision of chapter 301, title

49, U.S. Code, or any order, rule, regulation, standard, or ban under such provision.126

Enforcement

A person who believes that he or she has been discharged or otherwise discriminated against in

violation of MAP-21’s anti-retaliation provisions may file a complaint with the Secretary of

Labor no later than 180 days after the date on which the violation occurs.127 Within 60 days of

receiving the complaint, the Secretary will conduct an investigation and determine whether there

is reasonable cause to believe that the complaint has merit. If the Secretary concludes that there is

reasonable cause to believe that a violation has occurred, he will accompany his findings with a

preliminary order that provides for affirmative action to abate the violation, reinstatement with

back pay, and compensatory damages.128 The parties may object to the findings or order, and

request a hearing within 30 days of the date of notification of the findings. If a hearing is not

requested within the 30-day period, the preliminary order will be deemed a final order that is not

subject to judicial review. If a hearing is requested, the Secretary will issue a final order no later

than 120 days after the date of the hearing.129 Any person adversely affected or aggrieved by the

Secretary’s final order may obtain review of the order in the U.S. Court of Appeals for the circuit

in which the violation allegedly occurred or the circuit in which the complainant resided on the

date of the violation.130 The petition for review must be filed no later than 60 days after the date

of issuance of the final order.

126

49 U.S.C. § 30171(a).

49 U.S.C. § 30171(b)(1).

128

49 U.S.C. § 30171(b)(2).

129

49 U.S.C. § 30171(b)(3)(A).

130

49 U.S.C. § 30171(b)(4)(A).

127

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Is there a private right of action?

Yes. If the Secretary of Labor has not issued a final decision within 210 days after the filing of the

complaint and if the delay is not because of the employee’s bad faith, the employee may bring an

original action at law or equity for de novo review in the appropriate federal district court.131

Remedies

If the Secretary determines that a violation has occurred, he will order affirmative action to abate

the violation, reinstatement with back pay, and compensatory damages.132

Years of Adoption and Relevant Amendments

Adopted 2012.

See P.L. 112-141, § 31307(a), 126 Stat. 765 (2012).

Sponsor: Representative John L. Mica

Cosponsors: 2

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 373 - 52 (Roll no. 451).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 74 - 19. Record Vote Number: 172.

National Labor Relations Act (NLRA)

Coverage

Under section 8(a)(4) of the NLRA, it is an unfair labor practice for an employer to discharge or

otherwise discriminate against an employee because he or she has filed charges or given

testimony under the NLRA.133

Enforcement

An employee alleging an employer’s unfair labor practice may file a charge with the National

Labor Relations Board’s regional director for the region in which the alleged unfair labor practice

has occurred or is occurring.134 If it appears that formal proceedings should be instituted, the

131

49 U.S.C. § 30171(b)(3)(E).

49 U.S.C. § 30171(b)(3)(B).

133

29 U.S.C. § 158(a)(4).

134

29 C.F.R. § 102.10.

132

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

regional director will issue a formal complaint that includes a notice of hearing before an

administrative law judge (ALJ).135 Following the hearing, the ALJ will issue a decision, with

findings of fact, conclusions, and recommendations about the disposition of the case. Exceptions

to the ALJ’s decision or to any other part of the record or proceedings may be filed with the

National Labor Relations Board (NLRB). If such exceptions are not filed in a timely or proper

manner, the ALJ’s decision will become the decision of the NLRB. If further review is conducted

by the NLRB and it is determined that the employer has committed an unfair labor practice, it

will issue an order requiring the employer to cease and desist from the unfair labor practice and to

take such affirmative action as will effectuate the policies of the NLRA, including reinstatement

with or without back pay. Any person aggrieved by a final order of the NLRB may obtain review

of the order in any U.S. court of appeals in the circuit where the unfair labor practice was alleged

to have been committed or where the person resides or transacts business, or in the U.S. Court of

Appeals for the District of Columbia Circuit.136

Is there a private right of action?

No.

Remedies

An employer found to have committed an unfair labor practice will be ordered to cease and desist

from such practice and to take such affirmative action as will effectuate the policies of the NLRA,

including reinstatement with or without back pay.137

Years of Adoption or Relevant Amendments

Adopted 1935.

National Transit Systems Security Act (NTSSA)

Coverage

The NTSSA prohibits a public transportation agency, a contractor or subcontractor of such an

agency, or an officer or employee of such an agency from discharging or otherwise discriminating

against an employee if such action is because of the employee’s lawful, good faith act done, or

perceived by the employer to have been done or about to be done to (1) provide or cause to

provide information, or assist in an investigation regarding conduct that the employee believes to

be a violation of any federal law, rule, or regulation related to public transportation safety or

security, or fraud, waste, or abuse of public funds intended for public transportation, if the

information or assistance is provided to specified individuals or government entities; (2) refuse to

violate or assist in the violation of any federal law, rule, or regulation related to public

135

29 C.F.R. § 102.15.

29 U.S.C. § 160(f).

137

29 U.S.C. § 160(c).

136

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

transportation safety or security; (3) file a complaint or cause a proceeding related to the

enforcement of the NTSSA’s whistleblower provisions, or testify in such proceeding; (4)

cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary

of Homeland Security, or the National Transportation Safety Board (NTSB); or (5) furnish

information to the Secretary of Transportation, the Secretary of Homeland Security, the NTSB, or

any federal, state, or local regulatory or law enforcement agency about the facts related to an

accident or incident resulting in the injury or death of an individual or damage to property that

occurs in connection with public transportation.138

A public transportation agency, a contractor or subcontractor of such an agency, or an officer or

employee of such an agency is also prohibited from discharging or otherwise discriminating

against an employee for reporting a hazardous safety or security condition, refusing to work when

confronted by a hazardous safety or security condition, or refusing to authorize the use of any

safety- or security-related equipment, track, or structures, if the employee is responsible for the

inspection or repair of such items and believes that the items are in a hazardous condition.139

Refusals to work or authorize the use of safety- or security-related equipment, track, or structures,

are protected only if made in good faith, no reasonable alternative to a refusal is available, and

other specified requirements are satisfied.140

Enforcement

A person who believes that he or she has been discharged or otherwise discriminated against in

violation of the NTSSA’s whistleblower provisions may file a complaint with the Secretary of

Labor no later than 180 days after the date on which the violation occurs.141 Within 60 days of

receiving the complaint, the Secretary will conduct an investigation and determine whether there

is reasonable cause to believe that the complaint has merit. If the Secretary concludes that there is

reasonable cause to believe that a violation has occurred, he will accompany his findings with a

preliminary order that provides for affirmative action to abate the violation, reinstatement with

back pay, and compensatory damages.142 The parties may object to the findings or order, and

request a hearing within 30 days of the date of notification of the findings. If a hearing is not

requested within the 30-day period, the preliminary order will be deemed a final order that is not

subject to judicial review.143 If a hearing is requested, the Secretary will issue a final order no

later than 120 days after the date of the hearing. Any person adversely affected or aggrieved by

the Secretary’s final order may obtain review of the order in the U.S. Court of Appeals for the

circuit in which the violation allegedly occurred or the circuit in which the complainant resided

on the date of the violation.144 The petition for review must be filed no later than 60 days after the

date of issuance of the final order.

138

6 U.S.C. § 1142(a).

6 U.S.C. § 1142(b)(1).

140

6 U.S.C. § 1142(b)(2).

141

6 U.S.C. § 1142(c)(1).

142

6 U.S.C. § 1142(c)(2)(A).

143

Id.

144

6 U.S.C. § 1142(c)(4)(A).

139

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Is there a private right of action?

Yes. If the Secretary of Labor has not issued a final decision within 210 days after the filing of the

complaint and if the delay is not because of the employee’s bad faith, the employee may bring an

original action at law or equity for de novo review in the appropriate federal district court.145

Remedies

A prevailing employee is entitled to all relief necessary to make the employee whole, including

reinstatement with back pay and compensatory damages.146 Relief may also include punitive

damages in an amount not to exceed $250,000.147

Years of Adoption and Relevant Amendments

Adopted 2007.

See P.L. 110-53, § 1413, 121 Stat. 414 (2007).

Sponsor: Representative Bennie G. Thompson

Cosponsors: 205

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 371 - 40 (Roll no. 757).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 85 - 8. Record Vote Number: 284.

Occupational Safety and Health Act of 1970 (OSH

Act)

Coverage

The OSH Act prohibits an employer from discharging or in any manner discriminating against an

employee because such employee filed a complaint or instituted or caused to be instituted a

proceeding under the OSH Act, or is about to testify in any such proceeding.148 Any employee

who has testified or is about to testify in any such proceeding or exercises any right or protection

afforded by the OSH Act is also protected from retaliatory action.

145

6 U.S.C. § 1142(c)(7).

6 U.S.C. §§ 1142(d)(1), (d)(2).

147

6 U.S.C. § 1142(d)(3).

148

29 U.S.C. § 660(c)(1).

146

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Enforcement

An employee who believes that he or she has been discharged or otherwise discriminated against

in violation of the OSH Act may file a complaint with the Secretary of Labor alleging such

discrimination within 30 days after the violation occurs.149 Upon receipt of the complaint, the

Secretary will institute an investigation as he deems appropriate. If the Secretary determines that

a violation has occurred, he will bring an action in any appropriate U.S. district court.150 The

Secretary must notify the complainant of his determination within 90 days of receiving the

complaint.

Is there a private right of action?

No.

Remedies

In an action brought by the Secretary, the federal district court has jurisdiction, for cause shown,

to restrain the violation and order all appropriate relief, including reinstatement with back pay.151

Years of Adoption and Relevant Amendments

Adopted 1970.

Patient Protection and Affordable Care Act (ACA)

Coverage

The ACA amended the Fair Labor Standards Act (FLSA) to provide additional protections for

employees. Under the new section 18c of the FLSA, an employer is prohibited from discharging

or otherwise discriminating against any employee because he or she has (1) received a premium

tax credit or cost-sharing subsidy under the ACA; (2) provided, caused to be provided, or is about

to provide or cause to be provided to the employer, the federal government, or a state attorney

general information related to any violation of, or any act or omission the employee reasonably

believes to be a violation of, any provision of title 29, U.S. Code; (3) testified or is about to testify

in a proceeding concerning such a violation; (4) assisted or participated in, or is about to assist or

participate in, such a proceeding; or (5) objected to, or refused to participate in any activity,

policy, practice, or assigned task that employee reasonably believed to be in violation or any

provision of title 29, U.S. Code, or any order, rule, regulation, standard, or ban under such title.152

149

29 U.S.C. § 660(c)(2).

Id.

151

Id.

152

29 U.S.C. § 218c(a).

150

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Enforcement

An employee who believes that he or she has been discharged or otherwise discriminated against

in violation of section 18c of the FLSA may seek relief in accordance with the enforcement

procedures established by the Consumer Protection Safety Act (CPSA). See discussion above.

Is there a private right of action?

Yes. In accordance with the enforcement procedures established by the CPSA, a person may

bring an action at law or equity for de novo review in the appropriate federal district court with

jurisdiction within 90 days after receiving a written determination, or if the Secretary of Labor

has not issued a final decision within 210 days after the filing of the complaint.153

Remedies

In accordance with the enforcement procedures established by the CPSA, a court may grant all

relief necessary to make employee whole, including injunctive relief and compensatory

damages.154

Years of Adoption and Relevant Amendments

Adopted 2010.

See P.L. 111-148, § 1558, 124 Stat. 261 (2010).

Sponsor: Representative Charles B. Rangel

Cosponsors: 40

House: Resolving differences - On motion that the House agree to the Senate amendments Agreed

to by recorded vote: 219 - 212 (Roll no. 165).

Senate: Passed Senate with an amendment and an amendment to the Title by Yea-Nay Vote. 60 39. Record Vote Number: 396.

Pipeline Safety Improvement Act (PSIA)

Coverage

The PSIA prohibits an owner or operator of a pipeline facility, or a contractor or subcontractor of

such an owner or operator, from discharging or otherwise discriminating against an employee

because he or she (1) provided, caused to be provided, or is about to provide or cause to be

153

154

See 15 U.S.C. § 2087(b)(4).

See id.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

provided to the employer or the federal government information related to any violation or

alleged violation of an order, regulation, or standard under chapter 601, title 49, U.S. Code or any

federal law related to pipeline safety; (2) refused to engage in any practice made unlawful by

chapter 601, title 49, U.S. Code or any federal law related to pipeline safety, if the employee has

identified the alleged illegality to the employer; (3) provided, caused to be provided, or is about

provide or cause to be provided, testimony before Congress or at any federal or state proceeding

involving chapter 601, title 49, U.S. Code or any federal law related to pipeline safety; (4)

commenced, caused to be commenced, or is about to commence or cause to be commenced a

proceeding under chapter 601, title 49, U.S. Code or any federal law related to pipeline safety; (5)

provided, caused to be provided, or is about to provide or cause to be provided, testimony in such

a proceeding; or (6) assisted or participated in, or is about to assist or participate in, a proceeding

or action related to chapter 601, title 49, U.S. Code or any federal law related to pipeline safety.155

Enforcement

A person who believes that he or she was discharged or otherwise discriminated against in

violation of the PSIA’s whistleblower provisions may file a complaint with the Secretary of Labor

no later than 180 days after the date on which the violation occurs.156 Within 60 days of receiving

the complaint, the Secretary will conduct an investigation and determine whether there is

reasonable cause to believe that the complaint has merit. If the Secretary concludes that there is

reasonable cause to believe that a violation has occurred, he will accompany his findings with a

preliminary order that provides for affirmative action to abate the violation, reinstatement with

back pay, and compensatory damages.157 The parties may object to the findings or order, and

request a hearing within 60 days of the date of notification of the findings. If a hearing is not

requested within the 60-day period, the preliminary order will be deemed a final order that is not

subject to judicial review.158 If a hearing is requested, the Secretary will issue a final order no

later than 90 days after the date of the hearing. Any person adversely affected or aggrieved by the

Secretary’s final order may obtain review of the order in the U.S. Court of Appeals for the circuit

in which the violation allegedly occurred or the circuit in which the complainant resided on the

date of the violation.159 The petition for review must be filed no later than 60 days after the date

of issuance of the final order.

Is there a private right of action?

Yes. Under section 60121(a) of title 49, U.S. Code, a person may bring a civil action in an

appropriate federal district court for an injunction against another person for a violation of chapter

601, title 49, U.S. Code. 160 The PSIA’s whistleblower provisions are codified in chapter 601.

155

49 U.S.C. § 60129(a)(1).

49 U.S.C. § 60129(b)(1).

157

49 U.S.C. § 60129(b)(2)(A).

158

Id.

159

49 U.S.C. § 60129(b)(4)(A).

160

See 49 U.S.C. § 60121.

156

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Remedies

Under the PSIA’s whistleblower provisions, a prevailing employee is entitled to affirmative action

to abate the violation, reinstatement with back pay, and compensatory damages.161 Injunctive

relief is available for actions brought under section 60121(a) of title 49, U.S. Code.

Years of Adoption and Relevant Amendments

Adopted 2002.

See P.L. 107-355, § 6(a), 116 Stat. 2989 (2002).

Sponsor: Representative Don Young

Cosponsors: 43

House: Resolving differences—On motion that the House agree to the Senate amendment Agreed

to without objection.

Senate: Passed Senate with an amendment by Unanimous Consent.

Safe Drinking Water Act (SDWA)

Coverage

The SDWA prohibits an employer from firing, or in any other way discriminating against, or

causing to be fired or discriminated against, any employee because such employee filed,

instituted, or caused to be filed or instituted any proceeding under the SDWA or has testified or is

about to testify in any proceeding resulting from the administration or enforcement of the

SDWA.162

Enforcement

Any employee who believes that he or she has been fired or otherwise discriminated against in

violation of the SDWA’s anti-retaliation provisions may, within 30 days after such alleged

violation occurs, file a complaint with the Secretary of Labor.163 Upon receiving the complaint,

the Secretary will conduct an investigation and notify the complainant and the person alleged to

have committed the violation of the investigation results. Within 90 days of receiving the

complaint, the Secretary will issue an order that either denies the complaint or provides

affirmative action to abate the violation, reinstatement with back pay, compensatory damages,

and, where appropriate, exemplary damages.164 An order will be made on the record after notice

161

49 U.S.C. § 60129(b)(3)(B).

42 U.S.C. § 300j-9(i)(1).

163

42 U.S.C. § 300j-9(i)(2)(A).

164

42 U.S.C. § 300j-9(i)(2)(B)(i).

162

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

and an opportunity for agency hearing. Any person adversely affected or aggrieved by an order

may obtain review in the U.S. court of appeals for the circuit in which the violation allegedly

occurred.165 A petition for review must be filed within 60 days from the issuance of the order.

Is there a private right of action?

No.

Remedies

A prevailing employee is entitled to affirmative action to abate the violation, reinstatement with

back pay, compensatory damages, and, where appropriate, exemplary damages. At the request of

the complainant, the Secretary will assess against the person who committed the violation a sum

equal to the aggregate amount of all costs and expenses, including attorneys’ fees, reasonably

incurred by the complainant in connection with the complaint.166

Years of Adoption and Relevant Amendments

Adopted 1974.

Sarbanes-Oxley Act of 2002 (SOX)

Coverage

SOX prohibits publicly traded companies, including any subsidiaries or affiliates whose financial

information is included in the consolidated financial statements of such companies, and nationally

recognized statistical rating organizations from discharging, demoting, suspending, threatening,

harassing, or in any other manner discriminating against an employee because such employee

provided information, caused information to be provided, otherwise assisted in an investigation,

or filed, testified, or participated in a proceeding regarding any conduct that the employee

reasonably believes is a violation of SOX, any SEC rule or regulation, or any federal statute

relating to fraud against shareholders, when the information or assistance is provided to a federal

regulatory or law enforcement agency, any Member or committee of Congress, or a person with

supervisory authority over the employee or investigative authority for the employer, regarding

any violation of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1344 ( bank fraud), 1348

(securities fraud against shareholders), or any SEC rule or regulation, or of any federal law

regarding fraud against shareholders.167

165

42 U.S.C. § 300j-9(i)(3)(A).

42 U.S.C. § 300j-9(i)(2)(B)(ii).

167

18 U.S.C. § 1514A(a).

166

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Enforcement

Any employee who alleges discharge or other discrimination in violation of SOX’s whistleblower

provisions may file a complaint with the Secretary of Labor, using procedures set forth in section

42121(b) of title 49, U.S. Code.168 (These procedures are discussed below in the Enforcement

section for the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century.) SOX

indicates, however, that a complaint must be filed within 180 days after the date on which the

violation occurs, or 180 days after the date on which the employee became aware of the

violation.169

Is there a private right of action?

Yes. If the Secretary has not issued a final decision within 180 days of the filing of a complaint

and there is no showing that the delay is because of the claimant’s bad faith, the claimant may

bring an action at law or equity for de novo review in the appropriate federal district court.170

Remedies

A prevailing employee may be awarded all relief necessary to make the individual whole,

including reinstatement with back pay and interest, and compensation for any special damages

sustained as a result of the discrimination.171

Years of Adoption and Relevant Amendments

Adopted 2002.

See P.L. 107-204, Title VIII, Sec. 806(a), 116 Stat. 802 (2002).

Sponsor: Representative Michael G. Oxley

Cosponsors: 30

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

the Yeas and Nays: 423 - 3 (Roll no. 348).

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 99 - 0. Record Vote Number: 192.

Amended 2010.

See also Dodd-Frank Wall Street Reform and Consumer Protection Act, supra.

168

18 U.S.C. § 1514A(b)(2)(A).

18 U.S.C. § 1514A(b)(2)(D).

170

18 U.S.C. § 1514A(b)(1)(B).

171

18 U.S.C. § 1514A(c).

169

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Seaman’s Protection Act (SPA)

Coverage

The SPA prohibits a person from discharging or otherwise discriminating against a seaman

because the individual (1) in good faith, reported or is about to report to the Coast Guard or

another appropriate federal agency or department the belief that a violation of a maritime safety

law or regulation has occurred; (2) refused to perform duties because of a reasonable

apprehension or expectation that performing such duties would result in serious injury; (3)

testified in a proceeding to enforce a maritime safety law or regulation; (4) notified or attempted

to notify the vessel owner or the Secretary of the department in which the Coast Guard is

operating (Secretary) of a work-related personal injury or work-related illness; (5) cooperated

with a safety investigation by the Secretary or the National Transportation Safety Board (NTSB);

(6) furnished information to the Secretary, the NTSB, or any other public official about the facts

related to any marine casualty resulting in injury or death, or damage to property occurring in

connection with vessel transportation; or (7) accurately reported hours of duty.172

Enforcement

A seaman may file a complaint in the same manner as a complaint may be filed under section

31105(b) of title 49, U.S. Code.173 The procedures, requirements, and rights described in section

31105, including those providing for the judicial review of final orders, also apply to

whistleblower claims under the SPA.174 (Section 31105 is discussed in the Enforcement section

for the Commercial Motor Vehicle Safety Act.)

Is there a private right of action?

Yes. Pursuant to section 31105(c) of title 49, U.S. Code, a seaman may bring an original action at

law or equity for de novo review in an appropriate federal district court if the Secretary of Labor

has not issued a final decision within 210 days after the filing of the complaint and if the delay is

not the result of the seaman’s bad faith.

Remedies

Pursuant to section 31105(b) of title 49, U.S. Code, a prevailing seaman is entitled to affirmative

action to abate the violation, reinstatement with back pay, and compensatory damages. Relief may

also include punitive damages in an amount not to exceed $250,000.

Years of Adoption and Relevant Amendments

Adopted 1984.

172

46 U.S.C. § 2114(a)(1).

46 U.S.C. § 2114(b).

174

Id.

173

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Amended 2002.

See P.L. 107-295, § 428, 116 Stat. 2127 (2002).

Sponsor: Senator Ernest F. Hollings

Cosponsors: 14

House: Conference report agreed to in House. On agreeing to the conference report Agreed to by

voice vote.

Senate: Conference report agreed to in Senate. Senate agreed to conference report by Yea-Nay

Vote. 95 - 0. Record Vote Number: 243.

Amended 2010.

See P.L. 111-281, § 611(a), 124 Stat. 2969 (2010).

Sponsor: Representative James L. Oberstar

Cosponsor: 1

House: Resolving differences - On motion that the House agree to the Senate amendments to the

House amendment to the Senate amendment Agreed to without objection.

Senate: Resolving differences - Senate agreed to the House Amendment to the title by Unanimous

Consent.

Solid Waste Disposal Act (SWDA)

Coverage

The SWDA prohibits an employer from firing, or in any other way discriminating against, or

causing to be fired or discriminated against, any employee because such employee filed,

instituted, or caused to be filed or instituted any proceeding under the SWDA, or has testified or

is about to testify in any proceeding resulting from the administration or enforcement of the

SWDA.175

Enforcement

Any employee who believes that he or she has been fired or otherwise discriminated against in

violation of the SWDA’s anti-retaliation provisions may, within 30 days after such alleged

violation occurs, apply to the Secretary of Labor for a review of the firing or alleged

discrimination.176 Upon receipt of such application, the Secretary will institute an investigation as

175

176

42 U.S.C. § 6971(a).

42 U.S.C. § 6971(b)

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

he deems appropriate. Following the receipt of the investigation report, the Secretary will make

findings of fact. If he finds that a violation did occur, the Secretary will issue a decision,

incorporating an order and findings, and require the party committing the violation to take such

affirmative action to abate the violation as the Secretary deems appropriate, including the rehiring

or reinstatement of the employee with compensation. If the Secretary finds no violation, he will

issue an order denying the application; such order shall be subject to judicial review in the same

177

manner as orders and decisions are subject to judicial review under the SWDA.

Is there a private right of action?

No.

Remedies

A prevailing employee is entitled to such affirmative action to abate the violation as the Secretary

deems appropriate, including rehiring or reinstatement with compensation. Whenever an order is

issued, at the request of the applicant, a sum equal to the aggregate amount of all costs and

expenses, including attorneys’ fees, to have been reasonably incurred by the applicant, will be

assessed against the person who committed the violation.178

Years of Adoption and Relevant Amendments

Adopted 1976.

Surface Mining Control and Reclamation Act

(SMCRA)

Coverage

The SMCRA prohibits an employer from discharging or in any other way discriminating against

or causing to be fired or discriminated against any employee because such employee has filed,

instituted, or caused to be filed or instituted any proceeding under the SMCRA.179 Any employee

who has testified or is about to testify in any such proceedings is also protected from such

retaliatory action.

Enforcement

An employee who believes that he or she has been fired or otherwise discriminated against in

violation of the SMCRA’s anti-retaliation provisions may, within 30 days, apply to the Secretary

177

Id.

42 U.S.C. § 6971(c).

179

30 U.S.C. § 1293(a).

178

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

of Labor for a review of such firing or alleged discrimination.180 Upon receipt of the complaint,

the Secretary will initiate an investigation as he deems appropriate. The Secretary will make

findings of act after receiving a report of the investigation. If the Secretary determines that a

violation occurred, he will issue a decision incorporating the findings and an order that requires

the party committing the violation to take such affirmative action to abate the violation as the

Secretary deems appropriate, including the rehiring or reinstatement of the employee with

compensation. If the Secretary finds that no violation occurred, he will issue a finding. Orders

issued by the Secretary are subject to judicial review in the same manner as other orders and

decisions of the Secretary are subject to judicial review under the SMCRA.181

Is there a private right of action?

No.

Remedies

A prevailing employee is entitled to such affirmative action to abate the violation as the Secretary

deems appropriate, including the rehiring or reinstatement of the employee with compensation.

Whenever an order is issued to abate a violation, at the request of the applicant, a sum equal to

the aggregate amount of all costs and expenses, including attorney’s fees, determined to have

been reasonably incurred by the applicant in connection with the institution and prosecution of

such proceedings, will be assessed against the person who committed the violation.182

Years of Adoption and Relevant Amendments

Adopted 1977.

Title VII of the Civil Rights Act of 1964 (Title VII)

Coverage

Title VII prohibits an employer from discriminating against any employee or applicant for

employment because he or she has (1) opposed any practice made an unlawful employment

practice by Title VII; or (2) made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under Title VII.183 Title VII also prohibits such actions when

committed by an employment agency or joint labor-management committee against an individual,

or labor organization against a member or applicant for membership.

180

30 U.S.C. § 1293(b).

182

30 U.S.C. § 1293(c).

183

42 U.S.C. § 2000e-3(a).

181

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Enforcement

A person alleging discrimination under Title VII’s anti-retaliation provisions may file a charge

with the Equal Employment Opportunity Commission (EEOC) within 180 days after the alleged

unlawful employment practice occurred.184 Upon receipt of the charge, the EEOC will conduct an

investigation. If the EEOC determines after the investigation that there is not reasonable cause to

believe that the charge is true, it will dismiss the charge and notify the claimant and respondent of

its action. If reasonable cause is found, the EEOC will attempt to eliminate the alleged unlawful

employment practice by informal methods of conference, conciliation, and persuasion.185 The

EEOC will make its determination as promptly as possible and, so far as practicable, no later than

120 days from the filing of the charge or, in specified circumstances, the date upon which the

EEOC is authorized to take action with respect to the charge. If the EEOC is unable to secure

from the respondent an acceptable conciliation agreement, it may bring a civil action against the

respondent, so long as the respondent is not a government, governmental agency, or political

subdivision. In cases involving such entities, the EEOC will refer the case to the Attorney

General, who may bring a civil action in the appropriate federal district court.186

Is there a private right of action?

Yes. If the EEOC dismisses a charge, a civil action is not filed by the EEOC or the Attorney

General, or if the EEOC has not entered into a conciliation agreement involving the aggrieved

party, such person may file a civil action in any judicial district in the state in which the unlawful

employment practice is alleged to have been committed, in the judicial district in which the

relevant employment records are maintained or administered, or in the judicial district in which

the person would have worked but for the alleged practice.187 If the respondent is not found in any

of these districts, the action may be brought in the judicial district in which the respondent has its

principal office.

Remedies

If a court finds that the respondent has intentionally engaged in or is intentionally engaging in an

unlawful employment practice, it may enjoin the respondent from engaging in such practice and

order such affirmative action as may be appropriate, including reinstatement or any other

equitable relief.188 A reasonable attorney’s fee, including litigation expenses and costs, may be

awarded.189

184

42 U.S.C. § 2000e-5(b). If an aggrieved person has initially instituted proceedings with a state or local agency with

authority to grant or seek relief, the charge will be filed within 300 days after the alleged unlawful employment practice

occurred or within 30 days after receiving notice that the state or local agency has terminated the proceedings,

whichever is earlier.

185

Id.

186

42 U.S.C. § 2000e-5(f)(1).

187

42 U.S.C. § 2000e-5(f)(3).

188

42 U.S.C. § 2000e-5(g)(1).

189

42 U.S.C. § 12205.

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Years of Adoption and Relevant Amendments

Adopted 1964.

Amended 1972.

Toxic Substances Control Act (TSCA)

Coverage

The TSCA prohibits an employer from discharging or otherwise discriminating against any

employee with respect to compensation, terms, conditions, or privileges of employment because

the employee has (1) commenced, caused to be commenced, or is about to commence or cause to

be commenced a proceeding under the TSCA; (2) testified or is about to testify in any such

proceeding; or (3) assisted or participated or is about to assist or participate in such a proceeding

or in any other action to carry out the purposes of the TSCA.190

Enforcement

Any employee who believes that he or she has been discharged or otherwise discriminated against

by any person in violation of the TSCA’s anti-retaliation provisions may, within 30 days after

such alleged violation occurs, file a complaint with the Secretary of Labor.191 Within 30 days of

receiving the complaint, the Secretary will complete an investigation. Within 90 days of receiving

the complaint, the Secretary will, unless the proceeding is terminated due to a settlement, issue an

order either denying the complaint or providing for affirmative action to abate the violation,

reinstatement with compensation, compensatory damages, and, where appropriate, exemplary

damages.192 The order will be made on the record after notice and an opportunity for agency

hearing. Any person adversely affected or aggrieved by the order may obtain review in the U.S.

court of appeals for the circuit in which the violation allegedly occurred.193 A petition for review

must be filed within 60 days from the issuance of the order.

Is there a private right of action?

No.

Remedies

A prevailing employee is entitled to affirmative action to abate the violation, reinstatement with

compensation, compensatory damages, and, where appropriate, exemplary damages. Whenever

an order is issued, at the request of the applicant, a sum equal to the aggregate amount of all costs

190

15 U.S.C. § 2622(a).

15 U.S.C. § 2622(b)(1).

192

15 U.S.C. § 2622(b)(2)(A).

193

15 U.S.C. § 2622(c)(1).

191

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

and expenses, including attorneys’ fees, will be assessed against the person who committed the

violation.194

Years of Adoption and Relevant Amendments

Adopted 1976.

Uniformed Services Employment and

Reemployment Rights Act (USERRA)

Coverage

USERRA prohibits an employer from discriminating or taking any adverse employment action

against any person because such person has (1) taken an action to enforce a protection afforded

by the statute; (2) testified or otherwise made a statement in or in connection with any proceeding

under USERRA; (3) has assisted or otherwise participated in an investigation under USERRA; or

(4) has exercised a right provided by USERRA.195

Enforcement

A person who claims to be entitled to employment or reemployment rights under USERRA may

file a complaint with the Secretary of Labor, who will investigate the complaint.196 If the

Secretary determines that the action alleged in the complaint occurred, he will attempt to resolve

the complaint by making reasonable efforts to ensure compliance.197 If the Secretary’s efforts do

not resolve the complaint, he will notify the complainant of the results of the Secretary’s

investigation and the ability to have the request referred to the Attorney General, if the employer

is a state or private employer, or the Office of Special Counsel, if the employer is a federal

executive agency or the Office of Personnel Management (OPM).198

If the Attorney General is reasonably satisfied that the person on whose behalf the complaint is

referred is entitled to relief, the Attorney General may appear on behalf of the person and

commence an action.199 In an action against a state employer, the action will be brought in the

name of the United States.200

If the Special Counsel is reasonably satisfied that the person on whose behalf the complaint is

referred is entitled to relief, the Special Counsel, upon the request of the complainant, may appear

194

15 U.S.C. § 2622(b)(2)(B).

38 U.S.C. § 4311(b).

196

38 U.S.C. § 4322.

197

38 U.S.C. § 4317(d).

198

38 U.S.C. § 4322(e).

199

38 U.S.C. § 4323(a).

200

Id.

195

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

on behalf of the person and initiate an action before the Merit Systems Protection Board.201 A

person may submit directly a complaint against a federal executive agency or OPM to the Merit

Systems Protection Board (MSPB) if that person has chosen not to apply to the Secretary for

assistance, has received notification from the Secretary, has chosen not be represented by the

Special Counsel, or has received notification of a decision from the Special Counsel declining to

initiate an action and represent the person before the MSPB.202 If the MSPB determines that a

federal executive agency or OPM has not complied with USERRA’s employment or

reemployment provisions, it will enter an order requiring the agency of OPM to comply with such

provisions and to compensate the complainant for lost wages or benefits.203 A person adversely

affected or aggrieved by a final MSPB order or decision may petition the U.S. Court of Appeals

for the Federal Circuit for review.

Is there a private right of action?

Yes. A person may commence an action with respect to a complaint against a state or private

employer if the person has chosen not to apply to the Secretary for assistance, has chosen not to

request referral of the complaint to the Attorney General, or has been refused representation by

the Attorney General.204 In the case of an action against a state employer, the action may be

brought in a state court of competent jurisdiction.205 In the case of an action against a private

employer, the action may be brought in the federal district court for any district in which the

employer maintains a place of business.206

Remedies

A person who prevails in a claim against a state or private employer may be awarded lost wages

or benefits.207 If a court determines that the employer’s failure to comply with USERRA’s

employment and reemployment provisions was willful, it may require the employer to pay an

equal amount as liquidated damages.208 In addition, the court will use, where it finds appropriate,

its full equity powers, including temporary or permanent injunctions, temporary restraining

orders, and contempt orders.209

Year of Adoption

Adopted 1994.

Amended 1998.

201

38 U.S.C. § 4324(a)(2)(A).

38 U.S.C. § 4324(b).

203

38 U.S.C. § 4324(c)(2).

204

38 U.S.C. § 4323(a)(3).

205

38 U.S.C. § 4323(b)(2).

206

38 U.S.C. § 4323(c)(2).

207

38 U.S.C. § 4323(d)(1)(B).

208

38 U.S.C. § 4323(d)(1)(C).

209

38 U.S.C. § 4323(e).

202

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

See P.L. 105-368, § 211, 112 Stat. 3329 (1998).

Sponsor: Representative Bob Stump

Cosponsors: 18

House: Resolving differences - House agreed to Senate amendment with amendments pursuant to

H.Res. 592.

Senate: Resolving differences - Senate agreed to the House amendments to Senate amendment by

Unanimous Consent.

Amended 2008.

See P.L. 110-389, § 311, 122 Stat. 4162 (2008).

Sponsor: Senator Daniel K. Akaka

Cosponsors: 1

House: On motion to suspend the rules and pass the bill, as amended Agreed to by voice vote.

Senate: Resolving differences - Senate agreed to the House amendment to the bill by Unanimous

Consent.

Wendell H. Ford Aviation Investment and Reform

Act of the 21st Century (AIR21)

Coverage

AIR21 prohibits an air carrier, or a contractor or subcontractor of an air carrier, from discharging

or otherwise discriminating again an employee because he or she (1) provided, caused to be

provided, or is about to provide or cause to be provided to the employer or the federal

government information related to a violation or alleged violation of an order, regulation, or

standard of the Federal Aviation Administration (FAA) or any other provision of federal law

involving air carrier safety; (2) filed, caused to be filed, or is about to file or cause to be filed a

proceeding related to a violation or alleged violation of any order, regulation, or standard of the

FAA or any other provision of federal law involving air carrier safety; (3) testified or is about to

testify in such a proceeding; or (4) assisted or participated in, or is about to assist or participate in

such a proceeding.210

210

49 U.S.C. § 42121(a).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Enforcement

A person who believes that he or she has been discharged or otherwise discriminated against in

violation of AIR21’s anti-retaliation provisions may file a complaint with the Secretary of Labor

no later than 90 days after the date on which the violation occurs.211 Within 60 days of receiving

the complaint, the Secretary will conduct an investigation and determine whether there is

reasonable cause to believe that the complaint has merit. If the Secretary concludes that there is

reasonable cause to believe that a violation has occurred, he will accompany the findings with a

preliminary order that provides for affirmative action to abate the violation, reinstatement with

back pay, and compensatory damages.212

The parties may object to the findings or order, and request a hearing within 30 days of the date

of notification of the findings. If a hearing is not requested within the 30-day period, the

preliminary order will be deemed a final order that is not subject to judicial review.213 If a hearing

is requested, the Secretary will issue a final order no later than 120 days after the date of the

hearing. Any person adversely affected or aggrieved by the Secretary’s final order may obtain

review of the order in the U.S. Court of Appeals for the circuit in which the violation allegedly

occurred or the circuit in which the complainant resided on the date of the violation.214 The

petition for review must be filed no later than 60 days after the date of issuance of the final order.

Is there a private right of action?

No.

Remedies

A prevailing employee is entitled to affirmative action to abate the violation, reinstatement with

back pay, and compensatory damages.215

Years of Adoption and Relevant Amendments

Adopted 2000.

Whistleblower Protection Act (WPA)

Coverage

Generally, the WPA216 provides protections for many federal employees who make disclosures

evidencing illegal or improper government activities. In order to trigger the protections of the

211

49 U.S.C. § 42121(b)(1).

49 U.S.C. § 42121(b)(2)(A).

213

Id.

214

49 U.S.C. § 42121(b)(4)(A).

215

49 U.S.C. § 42121(b)(3)(B).

212

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

WPA, a case must contain the following elements: a “personnel action” that was taken because of

a “protected disclosure” made by a “covered employee.”217

Enforcement

Within 240 days of receipt of a complaint, the Office of Special Counsel (OSC) must make a

determination as to whether there are reasonable grounds to believe that a prohibited personnel

practice has occurred, exists, or is to be taken.218 If a positive determination is made and the

information was sent to the Special Counsel by an employee, former employee, applicant for

employment, or an employee who obtained the information acting within the scope of

employment,219 the Special Counsel must transmit the information to the appropriate agency head

and require that the agency head conduct an investigation and submit a written report.220 The

identity of the complaining employee may not be disclosed without such individual’s consent,

unless the Special Counsel determines that disclosure is necessary to avoid imminent danger to

health and safety or an imminent criminal violation.221 The Special Counsel then reviews the

reports as to their completeness and the reasonableness of the findings222 and submits the reports

to Congress, the President, the Comptroller General,223 and the complainant.224

If the Special Counsel does not make a positive determination, however, he or she may only

transmit the information to the agency head with the consent of the individual.225 Further, if the

Special Counsel receives the information from some source other than the ones described above,

he or she may transmit the information to the appropriate agency head, who shall inform the

Special Counsel of any action taken.226 In any case where the subject of the whistleblowing

disclosure evidences a criminal violation, however, all information is referred to the Attorney

General and no report is transmitted to the complainant.227 At least every 60 days throughout its

investigation, the OSC must give notice of the status of the investigation to the individual who

brought the allegation.228 In addition, no later than 10 days before the termination of an

investigation, a written status report including the proposed findings and legal conclusions must

be made to the individual who made the allegation of wrongdoing.229

(...continued)

216

P.L. 101-12, 103 Stat. 16; P.L. 103-424, 108 Stat. 4361; P.L. 112-199, 126 Stat. 1465 (codified, as amended, in

various sections of Title 5 U.S.C.).

217

For further discussion of the coverage and scope of WPA protections, see CRS Report R42727, Whistleblower

Protections Under Federal Law: An Overview, by (name redacted) and (name redacted).

218

5 U.S.C. § 1214(b)(2)(A)(i).

219

5 U.S.C. § 1213(c)(2).

220

5 U.S.C. § 1213(c)(1).

221

5 U.S.C. § 1213(h).

222

5 U.S.C. § 1213(e)(2).

223

5 U.S.C. § 1213(e)(3).

224

5 U.S.C. § 1213(e)(1).

225

5 U.S.C. § 1213(g)(2).

226

5 U.S.C. § 1213(g)(1).

227

5 U.S.C. § 1213(f).

228

5 U.S.C. § 1214(a)(1)(C)(ii).

229

5 U.S.C. § 1214(a)(1)(D).

Congressional Research Service

Survey of Federal Whistleblower and Anti-Retaliation Laws

Is there a private right of action?

Yes. The WPA provides that an employee, former employee, or applicant for employment has the

independent right to seek review of whistleblower reprisal cases by the MSPB no more than 60

days after notification is provided to such employee that the investigation was closed or 120 days

after filing a complaint with the OSC.230

Remedies

If in any investigation the Special Counsel determines that there are “reasonable grounds to

believe” a prohibited personnel practice exists or has occurred, the Special Counsel must report

findings and recommendations, and may include recommendations for corrective action, to the

Merit Systems Protection Board (MSPB), the agency involved, the Office of Personnel

Management (OPM) and, optionally, to the President.231 If the agency does not act to correct the

prohibited personnel practice, the Special Counsel may petition the MSPB for corrective

action.232 The MSPB, before rendering its decision, is required to provide an opportunity for oral

or written comments by the Special Counsel, the agency involved, and the OPM, and for written

comments by any individual who alleges to be the victim of the prohibited personnel practices.233

Proceedings for disciplinary action against an officer or employee who commits a prohibited

personnel practice may be instituted by the Special Counsel by filing a written complaint with the

MSPB.234 After proceedings before the MSPB or an administrative law judge,235 if violations are

found, the MSPB may impose (i) disciplinary action consisting of removal, reduction in grade,

debarment from Federal employment for a period not to exceed five years, suspension, or

reprimand; (ii) an assessment of a civil penalty not to exceed $ 1,000; or (iii) any combination of

disciplinary actions described under clause (i) and an assessment described under clause (ii).236 In

addition, the agency where the prevailing party was employed or had applied for employment

may be held responsible for reasonable attorney’s fees.237 In the case of presidentially appointed

and Senate confirmed employees in “confidential, policy-making, policy-determining, or policyadvocating” positions, the complaint and the statement of facts, along with any response from the

employee, are to be presented to the President for disposition in lieu of the presentation to the

Board.238

Years of Adoption and Relevant Amendments

Adopted 1989.

230

5 U.S.C. §§ 1221, 1214(a)(3).

5 U.S.C. § 1214(b)(2)(B).

232

5 U.S.C. § 1214(b)(2)(C).

233

5 U.S.C. § 1214(b)(3).

234

5 U.S.C. § 1215(a)(1).

235

5 U.S.C. § 1215(a)(2)(C).

236

5 U.S.C. § 1215(a)(3)(A).

237

5 U.S.C. § 12

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.