[Page 881 TITLE 42. THE PUBLIC HEALTH AND WELFARE § 9610]
§ 9610. Employee protection
(a) Activities of employee subject to protection
No person shall fire or in any other way discriminate against, or cause to be fired or
discriminated
against, any employee or any authorized representative of employees by reason of the fact that
such
employee or representative has provided information to a State or to the Federal Government,
filed,
instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or
is
about to testify in any proceeding resulting from the administration or enforcement of the
provisions of
this chapter.
(b) Administrative grievance procedure in cases of alleged violations
Any employee or a representative of employees who believes that he has been fired or
otherwise discriminated against by any person in violation of subsection (a) of this section may,
within
thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of
such
firing or alleged discrimination. A copy of the application shall be sent to such person, who shall
be the
respondent. Upon receipt of such application, the Secretary of Labor shall cause such
investigation to
be made as he deems appropriate. Such investigation shall provide an opportunity for a public
hearing
at the request of any party to such review to enable the parties to present information relating to
such
alleged violation. The parties shall be given written notice of the time and place of the hearing at
least
five days prior to the hearing. Any such hearing shall be of record and shall be subject to section
554
of title 5. Upon receiving the report of such investigation, the Secretary of Labor shall make
findings of
fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order
therein
and his findings, requiring the party committing such violation to take such affirmative action to
abate
the violation as the Secretary of Labor deems appropriate, including, but not limited to, the
rehiring or
reinstatement of the employee or representative of employees to his former position with
compensation. If he finds that there was no such violation, he shall issue an order denying the
application. Such order issued by the Secretary of Labor under this subparagraph shall be subject
to
judicial review in the same manner as orders and decisions are subject to judicial review under
this
chapter.
(c) Assessment of costs and expenses against violator subsequent to issuance of order of
abatement
Whenever an order is issued under this section to abate such violation, at the request of
the
applicant a sum equal to the aggregate amount of all costs and expenses (including the attorney's
fees) determined by the Secretary of Labor to have been reasonably incurred by the applicant for,
or in
connection with, the institution and prosecution of such proceedings, shall be assessed against
the
person committing such violation.
(d) Defenses This section shall have no application to any employee who acting
without
discretion from his employer (or his agent) deliberately violates any requirement of this chapter.
(e) Presidential evaluations of potential loss of shifts of employment resulting from
administration or enforcement of provisions; investigations; procedures applicable, etc.
The President shall conduct continuing evaluations of potential loss of shifts of employment
which
may result from the administration or enforcement of the provisions of this chapter, including,
where
appropriate, investigating threatened plant closures or reductions in employment allegedly
resulting
from such administration or enforcement. Any employee who is discharged, or laid off,
threatened with
discharge or layoff, or otherwise discriminated against by any person because of the alleged
results of
such administration or enforcement, or any representative of such employee, may request the
President to conduct a full investigation of the matter and, at the request of any party, shall hold
public
hearings, require the parties, including the employer involved, to present information relating to
the
actual or potential effect of such administration or enforcement on employment and any alleged
discharge, layoff, or other discrimination, and the detailed reasons or justification therefore. Any
such
hearing shall be of record and shall be subject to section 554 of title 5, United States Code. Upon
receiving the report of such investigation, the President shall make findings of fact as to the
effect of
such administration or enforcement on employment and on the alleged discharge, layoff, or
discrimination and shall make such recommendations as he deems appropriate. Such report,
findings,
and recommendations shall be available to the public. Nothing in this subsection shall be
construed to
require or authorize the President or any State to modify or withdraw any action, standard,
limitation,
or any other requirement of this chapter.
(Pub. L. 96-510, title I, § 110, Dec. 11, 1980, 94 Stat. 2787.)
Delegation of Functions
Functions of the President under subsec. (e) if this section delegated to the Secretary of Labor,
see
section 6(a) of Ex. Ord. No. 12316, Aug. 14, 1981, 46 F. R. 42239, set out as a note under
section
9615 of this title.