# Survey of Federal Whistleblower and Anti-Retaliation Laws > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR43045 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** April 22, 2013 - **Citation:** R43045 ## 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. 1 29 U.S.C. § 623(d). 29 U.S.C. § 626(d)(1). 3 29 U.S.C. § 626(d)(2). 4 29 U.S.C. § 626(c)(1). 5 29 U.S.C. § 626(b). 2 Congressional Research Service 1 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 6 P.L. 111-5, § 1553(a), 123 Stat. 297 (2009). P.L. 111-5, § 1553(b)(1), 123 Stat. 297 (2009). 8 Id. 9 P.L. 111-5, § 1553(c)(2), 123 Stat. 300 (2009). 10 P.L. 111-5, § 1553(c)(5), 123 Stat. 300 (2009). 7 Congressional Research Service 2 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 11 P.L. 111-5, § 1553(c)(3), 123 Stat. 300 (2009). Id. 13 42 U.S.C. § 12203(a). 14 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...) 12 Congressional Research Service 3 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. 15 Id. 16 42 U.S.C. § 2000e-5(f)(1). 17 42 U.S.C. § 2000e-5(f)(3). 18 42 U.S.C. § 2000e-5(g)(1). 19 42 U.S.C. § 12205. Congressional Research Service 4 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 20 15 U.S.C. § 2651. 15 U.S.C. § 2651(b). 22 29 U.S.C. § 660(c)(2). 21 Congressional Research Service 5 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. 23 24 42 U.S.C. § 7622(a). 42 U.S.C. § 7622(b). Congressional Research Service 6 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 25 49 U.S.C. § 31105(a)(1). 49 U.S.C. § 31105(b)(1). 27 49 U.S.C. § 31105(b)(2)(A). 28 49 U.S.C. § 31105(b)(2)(C). 29 49 U.S.C. § 31105(d). 26 Congressional Research Service 7 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 30 49 U.S.C. § 31105(c). 49 U.S.C. § 31105(b)(3)(A). 32 49 U.S.C. § 31105(b)(3)(C). 31 Congressional Research Service 8 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 33 42 U.S.C. § 9610(a). 42 U.S.C. § 9610(b). 35 Id. 34 Congressional Research Service 9 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 36 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.” 37 12 U.S.C. § 5567(c)(2)(B). 38 12 U.S.C. § 5567(c)(2)(C). 39 12 U.S.C. § 5567(c)(4)(E). 40 12 U.S.C. § 5567(c)(4)(D)(i). Congressional Research Service 10 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 41 12 U.S.C. § 5567(c)(4)(D)(ii). 15 U.S.C. § 2087(a). 43 15 U.S.C. § 2087(b)(1). 42 Congressional Research Service 11 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. 44 15 U.S.C. § 2087(b)(3)(B). 15 U.S.C. § 2087(2)(A). 46 15 U.S.C. § 2087(b)(4). 47 Id. 45 Congressional Research Service 12 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. 48 10 U.S.C. § 2409(a). 10 U.S.C. § 2409(b)(4). 50 10 U.S.C. § 2409(b)(1). 51 10 U.S.C. § 2409(c)(1). 52 10 U.S.C. § 2409(c)(3). 53 10 U.S.C. § 2409(c)(2). 49 Congressional Research Service 13 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 54 55 Id. 7 U.S.C. § 26. Congressional Research Service 14 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 56 15 U.S.C. § 78u-6(h)(1)(A). 12 U.S.C. § 5567(a). 58 7 U.S.C. § 26(h)(1)(B). 59 15 U.S.C. § 78u-6(h)(1)(B)(i). 60 15 U.S.C. § 78u-6(h)(1)(B)(iii). 61 12 U.S.C. § 5567(c)(1)(A). 62 12 U.S.C. § 5567(c)(2)(B). 57 Congressional Research Service 15 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 63 12 U.S.C. § 5567(c)(2)(C). 12 U.S.C. § 5567(c)(3)(E). 65 12 U.S.C. § 5567(c)(4)(D)(i). 66 7 U.S.C. § 26(h)(1)(C). 67 15 U.S.C. § 78u-6(h)(1)(C). 68 12 U.S.C. § 5567(c)(4)(D)(ii). 64 Congressional Research Service 16 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. 69 29 U.S.C. § 2002(4). 29 U.S.C. § 2005(b). 71 29 U.S.C. § 2005(c)(2). 72 29 U.S.C. § 2005(c)(1). 70 Congressional Research Service 17 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. 73 29 U.S.C. § 1140. Id. 75 29 U.S.C. § 1132(a)(5). 76 29 U.S.C. § 1132(a)(3). 77 29 U.S.C. § 1132(g)(1). 74 Congressional Research Service 18 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. 78 42 U.S.C. § 5851(a)(1). 42 U.S.C. § 5851(b)(1). 80 42 U.S.C. § 5851(b)(2)(A). 81 42 U.S.C. § 5851(c)(1). 79 Congressional Research Service 19 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 82 83 42 U.S.C. § 5851(b)(4). 29 U.S.C. § 215(a)(3). Congressional Research Service 20 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 84 29 U.S.C. § 216(b). 29 U.S.C. § 2615. 86 29 U.S.C. § 2617(b). 85 Congressional Research Service 21 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 87 29 U.S.C. § 2617(a)(2). 29 U.S.C. § 2617(c)(1). 89 29 U.S.C. § 2617(c)(2). 90 29 U.S.C. § 2617(a)(1). 91 5 U.S.C. § 2303(a). 88 Congressional Research Service 22 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. 92 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). 94 28 C.F.R. § 27.4. 93 Congressional Research Service 23 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 95 21 U.S.C. § 399d(a). 21 U.S.C. § 399d(b)(1). 97 21 U.S.C. § 399d(b)(5)(A). 98 21 U.S.C. § 399d(b)(4)(A). 96 Congressional Research Service 24 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 99 21 U.S.C. § 399d(b)(4)(B). 30 U.S.C. § 815(c)(1). 100 Congressional Research Service 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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 37 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 pa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43045. Public record. Not legal advice.