House Approves Bill Granting Whistleblower Protections to Offshore Oil and Gas Workers

Green whistleBefore recessing for six weeks, the House of Representatives passed by a 315- 93 margin the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 (H.R. 5851), a bill that would provide whistleblower protections for employees in the offshore oil and gas industries. The Offshore Oil and Gas Worker Whistleblower Protection Act was incorporated into broader oil spill response legislation, the Consolidated Land, Energy, and Aquatic Resources Act of 2010 (H.R. 3534), which the House passed by a vote of 209-193.

Employees covered by this most recent whistleblower expansion legislation include those supporting, or carrying out exploration, development, production, processing, or transportation of oil or gas; or oil spill cleanup, emergency response, environmental surveillance, protection, or restoration, or other oil spill activities related to occupational safety and health. Applicants for these positions are also covered.

Specifically, the bill would prevent employers from firing or otherwise discriminating against an employee who:

  • provided, caused to be provided, or is about to provide or cause to be provided to the employer or to a Federal or State Government official, information relating to any violation of, or any act or omission the covered employee reasonably believes to be a violation of any provision of the Outer Continental Shelf Lands Act (43 U.S.C. 1301 et seq.), or any order, rule, regulation, standard, or prohibition under that Act, or exercised any rights provided to employees under that Act;
  • testified or is about to testify in a proceeding concerning such violation;
  • assisted or participated or is about to assist or participate in such a proceeding;
  • testified or is about to testify before Congress on any matter covered by such Act;
  • reported an illness, injury, or unsafe condition related to the employer's activities to the employer or a State or Federal Government official;
  • refused to perform the covered employee's duties, or exercised stop work authority, related to the employer's activities described in section 3(1) if the covered employee had a good faith belief that performing such duties could result in injury to or impairment of the health of the covered employee or other employees, or cause an oil spill to the environment; or
  • objected to, or refused to participate in any activity, policy, practice, or assigned task that the covered employee reasonably believed to be in violation of any provision of such Act, or any order, rule, regulation, standard, or ban under such Act.

An employer could be found liable under the terms of this bill if any of the above actions are found to have contributed to the employer’s decision to take adverse action against the employee. An employer would not be liable, however, if it were shown by clear and convincing evidence that the employer would have taken the adverse action against the employee regardless of the employee’s claimed whistleblower activities.

Employees who believe that their employers are in violation of this Act would have 180 days to lodge a complaint with the Department of Labor (DOL), which would be responsible for investigating the issue. If the DOL failed to issue a final decision within 300 days, the employee would be entitled to bring a lawsuit in federal court.

An employer that is ultimately found to have violated the provisions of this bill could be ordered to take affirmative action to abate the violation; reinstate the employee to his or her former position together with compensation (including back pay and prejudgment interest) and restore the terms, conditions, and privileges associated with his or her employment; provide compensatory and consequential damages; pay exemplary damages, as appropriate; and pay the employee’s reasonable costs and fees. In the event the DOL determines that the employee has brought a frivolous claim, an employer would be entitled to up to $1,000 in attorney’s fees. 

For information on other recent whistleblower protection efforts, see Littler's Insight:  Cementing a Trend: Financial Reform Act Dramatically Expands Whistleblower Protections by Gregory C. Keating, Eric A. Savage, Ilyse W. Schuman, Roberta Limongi Ruiz and Amy E. Mendenhall.

Photo credit: Lkmorlan

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.