(a)(1) No employer or its duly authorized agent may discharge or in
any manner discriminate against an employee as to his/her employment
because that employee: (i) Has claimed or attempted to claim
compensation under this Act; or (ii) has testified or is about to
testify in a proceeding under this Act. To discharge or refuse to employ
a person who has been adjudicated to have filed a fraudulent claim for
compensation or otherwise made a false statement or misrepresentation
under section 31(a)(1) of the Act, 33 U.S.C. 931(a)(1), is not a
violation of this section.
(2) Any employer who violates this section shall be liable to a
penalty of not less that $1,000.00 or more than $5,000.00 to be paid (by
the employer alone, and not by a carrier) to the district director for
deposit in the special fund described in section 44 of the Act, 33
U.S.C. 944; and shall restore the employee to his or her employment
along with all wages lost due to the discrimination unless the employee
has ceased to be qualified to perform the duties of employment. Provided
however, that for any violation occurring on or after November 17, 1997
the employer shall be liable to a penalty of not less than $1,100.00 or
more than $5,500.00.
(b) When a district director receives a complaint from an employee
alleging discrimination as defined under section 49, he or she shall
notify the employer, and within five working days, initiate specific
inquiry to determine all the facts and circumstances pertaining thereto.
This may be accomplished by interviewing the employee, employer
representatives and other parties who
may have information about the matter. Interviews may be conducted by
written correspondence, telephone or personal interview.
(c) If circumstances warrant, the district director may also conduct
an informal conference on the issue as described in Secs. 702.312
through 702.314.
(d) Any employee discriminated against is entitled to be restored to
his employment and to be compensated by the employer for any loss of
wages arising out of such discrimination provided that the employee is
qualified to perform the duties of the employment. If it is determined
that the employee has been discriminated against, the district director
shall also determine whether the employee is qualified to perform the
duties of the employment. The district director may use medical evidence
submitted by the parties or he may arrange to have the employee examined
by a physician selected by the district director. The cost of the
medical examination arranged for by the district director may be charged
to the special fund established by section 44, 33 U.S.C. 944.
[42 FR 45302, Sept. 9, 1977, as amended at 50 FR 400, Jan. 3, 1985; 62
FR 53956, Oct. 17, 1997]
