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National Transit Systems Security Act (NTSSA),
Section 1413 of the Implementing Recommendations of the 9/11
Commission Act of 2007, Pub. L. No. 110-53
(To be codified at 6 U.S.C. Section 1142)
SEC. 1413. PUBLIC TRANSPORTATION
EMPLOYEE PROTECTIONS.
(a) IN GENERAL. - A public transportation agency, a contractor
or a subcontractor of such agency, or an officer or employee of
such agency, shall not discharge, demote, suspend, reprimand, or
in any other way discriminate against an employee if such
discrimination is due, in whole or in part, to the
employee’s lawful, good faith act done, or perceived by
the employer to have been done or about to be done -
(1) to provide information, directly cause information to be
provided, or otherwise directly assist in any investigation
regarding any conduct which the employee reasonably believes
constitutes a violation of any Federal law, rule, or
regulation relating to public transportation safety or
security, or fraud, waste, or abuse of Federal grants or
other public funds intended to be used for public
transportation safety or security, if the information or
assistance is provided to or an investigation stemming from
the provided information is conducted by -
(A) a Federal, State, or local regulatory or law
enforcement agency (including an office of the Inspector
General under the Inspector General Act of 1978 (5 U.S.C.
App.; Public Law 95–452);
(B) any Member of Congress, any Committee of Congress, or
the Government Accountability Office; or
(C) a person with supervisory authority over the employee
or such other person who has the authority to investigate,
discover, or terminate the misconduct;
(2) to refuse to violate or assist in the violation of any
Federal law, rule, or regulation relating to public
transportation safety or security;
(3) to file a complaint or directly cause to be brought a
proceeding related to the enforcement of this section or to
testify in that proceeding;
(4) to cooperate with a safety or security investigation by
the Secretary of Transportation, the Secretary of Homeland
Security, or the National Transportation Safety Board; or
(5) to furnish information to the Secretary of
Transportation, the Secretary of Homeland Security, the
National Transportation Safety Board, or any Federal, State,
or local regulatory or law enforcement agency as to the facts
relating to any accident or incident resulting in injury or
death to an individual or damage to property occurring in
connection with public transportation.
(b) HAZARDOUS SAFETY OR SECURITY CONDITIONS. - (1) A public
transportation agency, or a contractor or a subcontractor of
such agency, or an officer or employee of such agency, shall not
discharge, demote, suspend, reprimand, or in any other way
discriminate against an employee for -
(A) reporting a hazardous safety or security condition;
(B) refusing to work when confronted by a hazardous safety
or security condition related to the performance of the
employee’s duties, if the conditions described in
paragraph (2) exist; or
(C) 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 the
equipment, track, or structures, when the employee believes
that the equipment, track, or structures are in a hazardous
safety or security condition, if the conditions described in
paragraph (2) of this subsection exist.
(2) A refusal is protected under paragraph (1)(B) and (C) if -
(A) the refusal is made in good faith and no reasonable
alternative to the refusal is available to the employee;
(B) a reasonable individual in the circumstances then
confronting the employee would conclude that -
(i) the hazardous condition presents an imminent danger of
death or serious injury; and
(ii) the urgency of the situation does not allow
sufficient time to eliminate the danger without such
refusal; and
(C) the employee, where possible, has notified the public
transportation agency of the existence of the hazardous
condition and the intention not to perform further work, or
not to authorize the use of the hazardous equipment, track,
or structures, unless the condition is corrected immediately
or the equipment, track, or structures are repaired properly
or replaced.
(3) In this subsection, only subsection (b)(1)(A) shall apply to
security personnel, including transit police, employed or
utilized by a public transportation agency to protect riders,
equipment, assets, or facilities.
(c) ENFORCEMENT ACTION. -
(1) FILING AND NOTIFICATION. - A person who believes that he
or she has been discharged or otherwise discriminated against
by any person in violation of subsection (a) or (b) may, not
later than 180 days after the date on which such violation
occurs, file (or have any person file on his or her behalf) a
complaint with the Secretary of Labor alleging such discharge
or discrimination. Upon receipt of a complaint filed under
this paragraph, the Secretary of Labor shall notify, in
writing, the person named in the complaint and the
person’s employer of the filing of the complaint, of
the allegations contained in the complaint, of the substance
of evidence supporting the complaint, and of the
opportunities that will be afforded to such person under
paragraph (2).
(2) INVESTIGATION; PRELIMINARY ORDER. -
(A) IN GENERAL. - Not later than 60 days after the date of
receipt of a complaint filed under paragraph (1) and after
affording the person named in the complaint an opportunity
to submit to the Secretary of Labor a written response to
the complaint and an opportunity to meet with a
representative of the Secretary of Labor to present
statements from witnesses, the Secretary of Labor shall
conduct an investigation and determine whether there is
reasonable cause to believe that the complaint has merit
and notify, in writing, the complainant and the person
alleged to have committed a violation of subsection (a) or
(b) of the Secretary of Labor’s findings. If the
Secretary of Labor concludes that there is a reasonable
cause to believe that a violation of subsection (a) or (b)
has occurred, the Secretary of Labor shall accompany the
Secretary of Labor’s findings with a preliminary
order providing the relief prescribed by paragraph (3)(B).
Not later than 30 days after the date of notification of
findings under this paragraph, either the person alleged
to have committed the violation or the complainant may
file objections to the findings or preliminary order, or
both, and request a hearing on the record. The filing of
such objections shall not operate to stay any
reinstatement remedy contained in the preliminary order.
Such hearings shall be conducted expeditiously. If a
hearing is not requested in such 30- day period, the
preliminary order shall be deemed a final order that is
not subject to judicial review.
(B) REQUIREMENTS. -
(i) REQUIRED SHOWING BY COMPLAINANT. - The Secretary of
Labor shall dismiss a complaint filed under this
subsection and shall not conduct an investigation
otherwise required under subparagraph (A) unless the
complainant makes a prima facie showing that any
behavior described in subsection (a) or (b) was a
contributing factor in the unfavorable personnel action
alleged in the complaint.
(ii) SHOWING BY EMPLOYER.—Notwithstanding a
finding by the Secretary of Labor that the complainant
has made the showing required under clause (i), no
investigation otherwise required under paragraph (A)
shall be conducted if the employer demonstrates, by
clear and convincing evidence, that the employer would
have taken the same unfavorable personnel action in the
absence of that behavior.
(iii) CRITERIA FOR DETERMINATION BY SECRETARY OF
LABOR. - The Secretary of Labor may determine that a
violation of subsection (a) or (b) has occurred only if
the complainant demonstrates that any behavior
described in subsection (a) or (b) was a contributing
factor in the unfavorable personnel action alleged in
the complaint.
(iv) PROHIBITION. - Relief may not be ordered under
paragraph (A) if the employer demonstrates by clear and
convincing evidence that the employer would have taken
the same unfavorable personnel action in the absence of
that behavior.
(3) FINAL ORDER. -
(A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREEMENTS. - Not
later than 120 days after the date of conclusion of a
hearing under paragraph (2), the Secretary of Labor shall
issue a final order providing the relief prescribed by
this paragraph or denying the complaint. At any time
before issuance of a final order, a proceeding under this
subsection may be terminated on the basis of a settlement
agreement entered into by the Secretary of Labor, the
complainant, and the person alleged to have committed the
violation.
(B) REMEDY. - If, in response to a complaint filed under
paragraph (1), the Secretary of Labor determines that a
violation of subsection (a) or (b) has occurred, the
Secretary of Labor shall order the person who committed
such violation to -
(i) take affirmative action to abate the violation;
and
(ii) provide the remedies described in subsection (d).
(C) ORDER. - If an order is issued under subparagraph (B),
the Secretary of Labor, at the request of the complainant,
shall assess against the person against whom the order is
issued a sum equal to the aggregate amount of all costs
and expenses (including attorney and expert witness fees)
reasonably incurred, as determined by the Secretary of
Labor, by the complainant for, or in connection with,
bringing the complaint upon which the order was
issued.
(D) FRIVOLOUS COMPLAINTS. - If the Secretary of Labor
finds that a complaint under paragraph (1) is frivolous or
has been brought in bad faith, the Secretary of Labor may
award to the prevailing employer reasonable attorney fees
not exceeding $1,000.
(4) REVIEW. -
(A) APPEAL TO COURT OF APPEALS. - Any person adversely
affected or aggrieved by an order issued under paragraph
(3) may obtain review of the order in the United States
Court of Appeals for the circuit in which the violation,
with respect to which the order was issued, allegedly
occurred or the circuit in which the complainant resided
on the date of such violation. The petition for review
must be filed not later than 60 days after the date of the
issuance of the final order of the Secretary of Labor.
Review shall conform to chapter 7 of title 5, United
States Code. The commencement of proceedings under this
subparagraph shall not, unless ordered by the court,
operate as a stay of the order.
(B) LIMITATION ON COLLATERAL ATTACK.—An order of
the Secretary of Labor with respect to which review could
have been obtained under subparagraph (A) shall not be
subject to judicial review in any criminal or other civil
proceeding.
(5) ENFORCEMENT OF ORDER BY SECRETARY OF LABOR. - Whenever
any person has failed to comply with an order issued under
paragraph (3), the Secretary of Labor may file a civil action
in the United States district court for the district in which
the violation was found to occur to enforce such order. In
actions brought under this paragraph, the district courts
shall have jurisdiction to grant all appropriate relief
including, but not limited to, injunctive relief and
compensatory damages.
(6) ENFORCEMENT OF ORDER BY PARTIES. -
(A) COMMENCEMENT OF ACTION. - A person on whose behalf an
order was issued under paragraph (3) may commence a civil
action against the person to whom such order was issued to
require compliance with such order. The appropriate United
States district court shall have jurisdiction, without
regard to the amount in controversy or the citizenship of
the parties, to enforce such order.
(B) ATTORNEY FEES. - The court, in issuing any final
order under this paragraph, may award costs of litigation
(including reasonable attorney and expert witness fees) to
any party whenever the court determines such award is
appropriate.
(7) DE NOVO REVIEW. - With respect to a complaint under
paragraph (1), 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 due to the bad faith of the
employee, the employee may bring an original action at law or
equity for de novo review in the appropriate district court
of the United States, which shall have jurisdiction over such
an action without regard to the amount in controversy, and
which action shall, at the request of either party to such
action, be tried by the court with a jury. The action shall
be governed by the same legal burdens of proof specified in
paragraph (2)(B) for review by the Secretary of Labor.
(d) REMEDIES. -
(1) IN GENERAL. - An employee prevailing in any action under
subsection (c) shall be entitled to all relief necessary to
make the employee whole.
(2) DAMAGES. - Relief in an action under subsection (c)
(including an action described in (c)(7)) shall include -
(A) reinstatement with the same seniority status that the
employee would have had, but for the discrimination;
(B) any backpay, with interest; and
(C) compensatory damages, including compensation for any
special damages sustained as a result of the
discrimination, including litigation costs, expert witness
fees, and reasonable attorney fees.
(3) POSSIBLE RELIEF. - Relief in any action under subsection
(c) may include punitive damages in an amount not to exceed
$250,000.
(e) ELECTION OF REMEDIES. - An employee may not seek protection
under both this section and another provision of law for the
same allegedly unlawful act of the public transportation
agency.
(f) NO PREEMPTION. - Nothing in this section preempts or
diminishes any other safeguards against discrimination,
demotion, discharge, suspension, threats, harassment, reprimand,
retaliation, or any other manner of discrimination provided by
Federal or State law.
(g) RIGHTS RETAINED BY EMPLOYEE. - Nothing in this section
shall be construed to diminish the rights, privileges, or
remedies of any employee under any Federal or State law or under
any collective bargaining agreement. The rights and remedies in
this section may not be waived by any agreement, policy, form,
or condition of employment.
(h) DISCLOSURE OF IDENTITY. -
(1) Except as provided in paragraph (2) of this subsection,
or with the written consent of the employee, the Secretary of
Transportation or the Secretary of Homeland Security may not
disclose the name of an employee who has provided information
described in subsection (a)(1).
(2) The Secretary of Transportation or the Secretary of
Homeland Security shall disclose to the Attorney General the
name of an employee described in paragraph (1) of this
subsection if the matter is referred to the Attorney General
for enforcement. The Secretary making such disclosure shall
provide reasonable advance notice to the affected employee if
disclosure of that person’s identity or identifying
information is to occur.
(i) PROCESS FOR REPORTING SECURITY PROBLEMS TO THE DEPARTMENT OF
HOMELAND SECURITY. -
(1) ESTABLISHMENT OF PROCESS. - The Secretary shall establish
through regulations after an opportunity for notice and
comment, and provide information to the public regarding, a
process by which any person may submit a report to the
Secretary regarding public transportation security problems,
deficiencies, or vulnerabilities.
(2) ACKNOWLEDGMENT OF RECEIPT. - If a report submitted under
paragraph (1) identifies the person making the report, the
Secretary shall respond promptly to such person and
acknowledge receipt of the report.
(3) STEPS TO ADDRESS PROBLEM. - The Secretary shall review
and consider the information provided in any report submitted
under paragraph (1) and shall take appropriate steps to
address any problems or deficiencies identified.
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