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Pipeline Safety Improvement of 2002 (PSIA)
Public Law 107-355, Dec 17, 2002
49 USC Section 60129
SEC 6. PROTECTION OF EMPLOYEES PROVIDING
PIPELINE SAFETY INFORMATION.
(a) IN GENERAL- Chapter 601 is amended by adding at the end the
following:
"Sec. 60129. Protection of employees
providing pipeline safety information
(a) DISCRIMINATION AGAINST EMPLOYEE
(1) IN GENERAL- No employer may discharge any
employee or otherwise discriminate against any employee with
respect to his compensation, terms, conditions, or privileges of
employment because the employee (or any person acting pursuant to
a request of the employee)
(A) provided, caused to be provided, or is about
to provide or cause to be provided, to the employer or the
Federal Government information relating to any violation or
alleged violation of any order, regulation, or standard under
this chapter or any other Federal law relating to pipeline
safety;
(B) refused to engage in any practice made unlawful by this
chapter or any other Federal law relating to pipeline safety, if
the employee has identified the alleged illegality to the
employer;
(C) provided, caused to be provided, or is about to provide or
cause to be provided, testimony before Congress or at any Federal
or State proceeding regarding any provision (or proposed
provision) of this chapter or any other Federal law relating to
pipeline safety;
(D) commenced, caused to be commenced, or is about to commence or
cause to be commenced a proceeding under this chapter or any
other Federal law relating to pipeline safety, or a proceeding
for the administration or enforcement of any requirement imposed
under this chapter or any other Federal law relating to pipeline
safety;
(E) provided, caused to be provided, or is about to provide or
cause to be provided, testimony in any proceeding described in
subparagraph (D); or
(F) assisted or participated or is about to assist or participate
in any manner in such a proceeding or in any other manner in such
a proceeding or in any other action to carry out the purposes of
this chapter or any other Federal law relating to pipeline
safety.
(2) EMPLOYER DEFINED- In this section, the term
'employer' means
(A) a person owning or operating a pipeline
facility; or
(B) a contractor or subcontractor of such a person.
(b) DEPARTMENT OF LABOR COMPLAINT PROCEDURE-
(1) FILING AND NOTIFICATION- A person who
believes that he or she has been discharged or otherwise
discriminated against by any person in violation of subsection
(a) may, not later than 180 days after the date on which such
violation occurs, file (or have any person file on his or her
behalf) a complaint with the Secretary of Labor alleging such
discharge or discrimination. Upon receipt of such a complaint,
the Secretary of Labor shall notify, in writing, the person or
persons named in the complaint and the Secretary of
Transportation of the filing of the complaint, of the allegations
contained in the complaint, of the substance of evidence
supporting the complaint, and of the opportunities that will be
afforded to such person or persons under paragraph (2).
(2) INVESTIGATION; PRELIMINARY ORDER-
(A) IN GENERAL- Not later than 60 days after the
date of receipt of a complaint filed under paragraph (1) and
after affording the person or persons named in the complaint an
opportunity to submit to the Secretary of Labor a written
response to the complaint and an opportunity to meet with a
representative of the Secretary of Labor to present statements
from witnesses, the Secretary of Labor shall conduct an
investigation and determine whether there is reasonable cause to
believe that the complaint has merit and notify in writing the
complainant and the person or persons alleged to have committed a
violation of subsection (a) of the Secretary of Labor's
findings. If the Secretary of Labor concludes that there is
reasonable cause to believe that a violation of subsection (a)
has occurred, the Secretary of Labor shall include with the
Secretary of Labor's findings with a preliminary order
providing the relief prescribed by paragraph (3)(B). Not later
than 60 days after the date of notification of findings under
this subparagraph, any person alleged to have committed a
violation or the complainant may file objections to the findings
or preliminary order, or both, and request a hearing on the
record. The filing of such objections shall not operate to stay
any reinstatement remedy contained in the preliminary order. Such
hearings shall be conducted expeditiously. If a hearing is not
requested in such 60-day period, the preliminary order shall be
deemed a final order that is not subject to judicial review.
(B) REQUIREMENTS-
(i) REQUIRED SHOWING BY COMPLAINANT- The
Secretary of Labor shall dismiss a complaint filed under this
subsection and shall not conduct an investigation otherwise
required under subparagraph (A) unless the complainant makes a
prima facie showing that any behavior described in subsection (a)
was a contributing factor in the unfavorable personnel action
alleged in the complaint.
(ii) SHOWING BY EMPLOYER- Notwithstanding a finding by the
Secretary of Labor that the complainant has made the showing
required under clause (i), no investigation otherwise required
under subparagraph (A) shall be conducted if the employer
demonstrates, by clear and convincing evidence, that the employer
would have taken the same unfavorable personnel action in the
absence of that behavior.
(iii) CRITERIA FOR DETERMINATION BY SECRETARY- The Secretary of
Labor may determine that a violation of subsection (a) has
occurred only if the complainant demonstrates that any behavior
described in subsection (a) was a contributing factor in the
unfavorable personnel action alleged in the complaint.
(iv) PROHIBITION- Relief may not be ordered under subparagraph
(A) if the employer demonstrates by clear and convincing evidence
that the employer would have taken the same unfavorable personnel
action in the absence of that behavior.
(3) FINAL ORDER-
(A) DEADLINE FOR ISSUANCE; SETTLEMENT
AGREEMENTS- Not later than 90 days after the date of conclusion
of a hearing under paragraph (2), the Secretary of Labor shall
issue a final order providing the relief prescribed by this
paragraph or denying the complaint. At any time before issuance
of a final order, a proceeding under this subsection may be
terminated on the basis of a settlement agreement entered into by
the Secretary of Labor, the complainant, and the person or
persons alleged to have committed the violation.
(B) REMEDY- If, in response to a complaint filed under paragraph
(1), the Secretary of Labor determines that a violation of
subsection (a) has occurred, the Secretary of Labor shall order
the person or persons who committed such violation to
(i) take affirmative action to abate the
violation;
(ii) reinstate the complainant to his or her former position
together with the compensation (including back pay) and restore
the terms, conditions, and privileges associated with his or her
employment; and
(iii) provide compensatory damages to the complainant. If such
an order is issued under this paragraph, the Secretary of Labor,
at the request of the complainant, shall assess against the
person or persons against whom the order is issued a sum equal to
the aggregate amount of all costs and expenses (including
attorney's and expert witness fees) reasonably incurred, as
determined by the Secretary of Labor, by the complainant for, or
in connection with, the bringing the complaint upon which the
order was issued.
(C) FRIVOLOUS COMPLAINTS- If the Secretary of Labor finds that a
complaint under paragraph (1) is frivolous or has been brought in
bad faith, the Secretary of Labor may award to the prevailing
employer a reasonable attorney's fee not exceeding
$1,000.
(4) REVIEW-
(A) APPEAL TO COURT OF APPEALS- Any person
adversely affected or aggrieved by an order issued under
paragraph (3) may obtain review of the order in the United States
Court of Appeals for the circuit in which the violation, with
respect to which the order was issued, allegedly occurred or the
circuit in which the complainant resided on the date of such
violation. The petition for review must be filed not later than
60 days after the date of issuance of the final order of the
Secretary of Labor. Review shall conform to chapter 7 of title 5,
United States Code. The commencement of proceedings under this
subparagraph shall not, unless ordered by the court, operate as a
stay of the order.
(B) LIMITATION ON COLLATERAL ATTACK- An order of the Secretary
of Labor with respect to which review could have been obtained
under subparagraph (A) shall not be subject to judicial review in
any criminal or other civil proceeding.
(5) ENFORCEMENT OF ORDER BY SECRETARY OF LABOR- Whenever any
person has failed to comply with an order issued under paragraph
(3), the Secretary of Labor may file a civil action in the United
States district court for the district in which the violation was
found to occur to enforce such order. In actions brought under
this paragraph, the district courts shall have jurisdiction to
grant all appropriate relief, including, but not to be limited
to, injunctive relief and compensatory damages.
(6) ENFORCEMENT OF ORDER BY PARTIES-
(A) COMMENCEMENT OF ACTION- A person on whose
behalf an order was issued under paragraph (3) may commence a
civil action against the person or persons to whom such order was
issued to require compliance with such order. The appropriate
United States district court shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the
parties, to enforce such order.
(B) ATTORNEY FEES- The court, in issuing any final order under
this paragraph, may award costs of litigation (including
reasonable attorney and expert witness fees) to any party
whenever the court determines such award of costs is
appropriate.
(c) MANDAMUS- Any nondiscretionary duty imposed by this section
shall be enforceable in a mandamus proceeding brought under
section 1361 of title 28, United States Code.
(d) NONAPPLICABILITY TO DELIBERATE VIOLATIONS- Subsection (a)
shall not apply with respect to an action of an employee of an
employer who, acting without direction from the employer (or such
employer's agent), deliberately causes a violation of any
requirement relating to pipeline safety under this chapter or any
other law of the United States."
(b) CIVIL PENALTY- Section 60122(a) is amended by adding at the
end the following:
"(3) A person violating section 60129, or
an order issued thereunder, is liable to the Government for a
civil penalty of not more than $1,000 for each violation. The
penalties provided by paragraph (1) do not apply to a violation
of section 60129 or an order issued
thereunder."
(c) CONFORMING AMENDMENT- The analysis for chapter 601 is amended
by adding at the end the following:
"60129. Protection of employees providing
pipeline safety information."
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