Bear in mind that there are multiple versions of the bill and what is ultimately passed may differ radically from what is in the versions right now. A lot can happen during the "conference," when designated members of each body meet to hash out the differences between what each has passed. Still, we can get a feel for what is likely coming by looking to see what is in both versions of HR 1.
There are several provisions that might affect employers in some way (it is a stimulus bill designed to create job, after all) but the provision that stood out to me was the retaliation section. This provision, found in both the house and senate versions, would create a retaliation claim for employees who are retaliated against because they "blew the whistle" on (being general here) gross mismanagement or waste in federal contracts a "substantial and specific danger to public health or safety" or a "violation of law" related to a contract or grant of funds appropriated by the stimulus bill. My observations about the terms of this provision follow the statute.
With the aid of the "compare" feature in Microsoft Word, we can see the differences between the current Senate (Sec. 1518) and House (Sec. 1243) versions. Words in the Senate but not the House versions are in red and struck-through (hopefully, it depends on how your browser displays the code) while words in the House but not the Senate version are in teal and underlined. (And if you can't see any of these editing marks, click here for an Adobe readable copy).
SEC. 1518.1243. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR WHISTLEBLOWERS.
(a) Prohibition of Reprisals- An employee of any non-Federal employer receiving covered funds made available in this Act may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to the Board, an inspector general, the Comptroller General, a member of Congress, or a the head of a Federal agency head, or their representatives, information that the employee reasonably believes is evidence of--
(1) gross mismanagement of an executive agency contract or grant relating to covered funds;
(2) a gross waste of coveredexecutive agency funds;
(3) a substantial and specific danger to public health or safety; or
(4) a violation of law related to an executive agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered fundscarry out this Act.
(b) Investigation of Complaints-
(1) IN GENERAL- A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint to the appropriate inspector general. of the executive agency that awarded the contract or issued the grant. Unless the inspector general determines that the complaint is frivolous, the inspector general shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the person's employer, the head of the appropriate agencyFederal agency that awarded the contract or issued the grant, and the Board.
(2) TIME LIMITATIONS FOR ACTIONS-
(A) IN GENERAL-(2)(A) Except as provided under subparagraph (B), the inspector general shall make a determination that a complaint is frivolous or submit a report under paragraph (1) within 180 days after receiving the complaint.
(B) EXTENSION- If the inspector general is unable to complete an investigation in time to submit a report within the 180-day period specified underin subparagraph (A) and the person submitting the complaint agrees to an extension of time, the inspector general shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the inspector general and the person submitting the complaint.
(c) Remedy and Enforcement Authority-
(1) AGENCY ACTION- Not later than 30 days after receiving an inspector general report underpursuant to subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall take 1one or more of the following actions:
(A) Order the employer to take affirmative action to abate the reprisal.
(B) Order the employer to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the employer to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency.
(2) CIVIL ACTION- If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under subsectionparagraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the employer to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury.
(3) EVIDENCE- An inspector general determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought in accordance withpursuant to this subsection.
(4) JUDICIAL ENFORCEMENT OF ORDER-(4) Whenever a person fails to comply with an order issued under paragraph (1), the head of the agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief and compensatory and exemplary damages.
(5) JUDICIAL REVIEW- Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review shall conform to chapter 7 of title 5, United States Code.
(d) Rule of Construction- Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee.
(e) Definitions-
(1) NON-FEDERAL EMPLOYER RECEIVING FUNDS UNDER THIS ACT- The term `non-Federal employer receiving funds made available in this Act' means--
(A) with respect to a Federal contract awarded or Federal grant issued to carry out this Act, the contractor or grantee, as the case may be, if the contractor or grantee is an employer; or
(B) a State or local government, if the State or local government has received funds made available in this Act.
(2) EXECUTIVE AGENCY- The term `executive agency' has the meaning given that term in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).
(3) STATE OR LOCAL GOVERNMENT- The term `State or local government' means--
(A) the government of each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, or any other territory or possession of the United States; or
(B) the government of any political subdivision of a government listed in subparagraph (A).
This applies to any employer that receives stimulus funds. That includes states, cities and counties.
The "whisteblowing" must be to the Feds. Internal whistleblowing, i.e., to the employer, is not expressly covered. (Note that some courts might disagree and hold complaints to the employer are covered.)
The IG of each federal agency would investigate and make a recommendation to the federal agency as to whether the employer has retaliated against the employee. This is unlike most other federal retaliation provisions which are litigated before the Department of Labor. I suspect few if any agency IG offices have employees who have any experience ruling on retaliation claims. This could be a disaster (for both sides) in the making.
The IG apparently does not have to hold a hearing much less give the employer notice of a hearing. In fact, the statute does not specifically require the IG to even notify the employer that a claim has been filed before the IG issues its report ("the inspector general shall investigate the complaint and, upon completion of such investigation, submit a report") or the Agency issue a final ruling. Of course, an employer could argue the Due Process Clause in the Fifth Amendment requires notice and an opportunity to respond to any complaint. It is also hard to see how the IG could "investigate" without hearing from the employer.
The absence of a requirement to hold a hearing on the record is particularly troubling. The retaliation provisions enforced by the DOL require compliance with the Administrative Procedures Act. This provision does not. That could mean each Agency could decide on the procedures it would use to decide whether an employee has been retaliated against. Neither employees nor employers benefit from not having a hearing that the public could attend. (The APA would, however, apply to judicial review of any agency final decision.)
The two versions seem to disagree on what is protected activity. Under the House version, blowing the whistle on gross mismanagement of any government contract or grant seems to be protected, even if the government contract or grant had nothing to do with stimulus money. The Senate version requires the whistle be blown about stimulus funds. Under the circumstances, I suspect this is inaccurate drafting by the House as the intent seems to be to protect against waste and gross mismanagement of stimulus funds.
There is no specific statute of limitations on when an employee can complain to the IG. The DOL retaliation provisions require a complaint be filed within 30 days (in some cases) or (in others) within 180 days. The absence of a statute of limitations creates an interesting dilemma. There is a general 4 year statute of limitations, 28 U.S.C. § 1658, but it applies to the commencement of a "civil action," and in a somewhat similar context, the word "action" has been held to mean the filing of a complaint in court. Whether that time limit would apply to the time for filing a complaint with the IG remains to be seen. If not, what would be the time limit for complaining to the IG? The statute doesn't say.
If the agency does not issue a final ruling on the complaint within 210 days after it is made, the employee can file a civil action in federal court. You have to wonder whether this complaint must be filed within 4 years of the retaliatory action. Note also, that the 210 days is for a final agency action, not just the IG report to the agency.
One way an employee can blow the whistle is to complain about a "substantial and specific danger to public health or safety." Note that while employer must be one that receives stimulus money, nothing in this subsection say the danger to public health and safety must otherwise be connected to stimulus funds.
One thing is for sure, the stimulus will be good business for lawyers of all persuasions, though I am not so sure that creating more work for attorneys is the kind of economic stimulus the President envisioned.
No comments:
Post a Comment