S.Amdt. 3899Senate117th Congress (2021-2023)2nd degree
S.Amdt. 3899
Sponsored by
Sen. Elizabeth Warren (D-MA)
Submitted October 26, 2021
Legislative Activity
Stay on top of the latest movement without scrolling through every action
Floor
Latest Action
Senate amendment submitted
October 26, 2021
Text
Submitted
SA 3899. Ms. WARREN submitted an amendment intended to be proposed to amendment SA 3867 submitted by Mr. Reed and intended to be proposed to the bill H.R. 4350, to authorize appropriations for fiscal year 2022 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; which was ordered to lie on the table; as follows: At the end of subtitle E of title VIII, add the following: SEC. 857. PROTECTIONS FOR WHISTLEBLOWERS SEEKING TO ENSURE ACCOUNTABILITY AND OVERSIGHT OF COVID-19 PANDEMIC RESPONSE. (a) Defense Contracts.--Section 2409 of title 10, United States Code, is amended-- (1) in subsection (a)-- (A) by amending paragraph (1) to read as follows: ``(1) A protected individual may not be discharged, demoted, harassed, blacklisted, prejudiced by any action or lack of action, or otherwise discriminated against for disclosing, being perceived as disclosing, or preparing to disclose (including assisting in disclosing, being perceived as assisting in disclosing, and including a disclosure made in the ordinary course of job duties) to a person or body described in paragraph (2) information that the protected individual reasonably believes is evidence of-- ``(A)(i) gross mismanagement of a Department of Defense contract, subcontract, grant, or subgrant relating to covered funds; ``(ii) a gross waste of Department funds or covered funds; ``(iii) an abuse of authority related to a Department contract or grant or the distribution, implementation, or use of covered funds, including conflict of interest or partiality; ``(iv) any violation of any statute, rule, or regulation related to a Department of Defense contract, subcontract (including the competition for or negotiation of a contract or subcontract), grant, or subgrant, awarded or issued relating to covered funds; and ``(v) conduct that violates, obstructs, or undermines any law, rule, or regulation related to any Federal contract (including the competition for or negotiation of a contract) or grant, including any statute, rule, or regulation with respect to any coronavirus pandemic-related program, project, or activity; ``(B) refusing to obey an order that the protected individual reasonably believes would require that individual to violate a statute, rule, or regulation with respect to any covered funds, including any coronavirus pandemic-related program, project, or activity; ``(C) evidencing gross mismanagement of a National Aeronautics and Space Administration contract, grant, subcontract, or subgrant, a gross waste of Administration funds, an abuse of authority relating to an Administration contract or grant, or a violation of law, rule, or regulation related to an Administration contract (including the competition for or negotiation of a contract), grant, subcontract, or subgrant; or ``(D) a substantial and specific danger to worker or public health or safety.''; (B) in paragraph (2)-- (i) in subparagraph (A), by striking ``or a representative of a committee of Congress'' and inserting ``, a representative of a committee of Congress, or commission of Congress''; (ii) in subparagraph (B), by inserting ``, including the Special Inspector General for Pandemic Relief and any other Office of Inspector General established by law'' after ``Inspector General''; (iii) in subparagraph (G), by striking ``who has the responsibility to investigate'' and inserting ``authorized to investigate''; and (iv) by adding after subparagraph (G) the following new subparagraphs: ``(H) The Pandemic Response Accountability Committee. ``(I) An officer or representative of a labor organization. ``(J) The head of an executive agency or a designee of such agency head.''; and (C) in paragraph (3)(A)-- (i) by striking ``an employee'' and inserting ``a protected individual''; (ii) by striking ``contractor or subcontractor'' and inserting ``contractor, subcontractor, grantee, or subgrantee''; and (iii) by striking ``contract or grant'' and inserting ``contract, subcontract, grant, or subgrant''; (2) in subsection (b)-- (A) in paragraph (1)-- (i) by striking ``A person who believes that the person'' and inserting ``A protected individual who believes that the protected individual''; [[Page S7382]] (ii) by striking ``Space Administration.'' and inserting ``Space Administration, who shall review the complaint for investigation, and shall investigate the alleged misconduct disclosed by the protected individual if there previously has not been such an investigation or if the appropriate Inspector General determines that the original investigation was biased or otherwise inadequate.''; and (iii) by striking ``previously been addressed'' and inserting ``been filed''; (B) by amending paragraph (3) to read as follows: ``(3)(A) A person or body described in subsection (a)(2) that receives information under paragraph (1) and any other person or body to which such information is disclosed may not exercise discretion to respond to any inquiry or disclose the identity or identifying information of the protected individual providing the information without prior explicit written consent of the protected individual. ``(B) If disclosure of the identity or identifying information of a protected individual providing information under paragraph (1) is required by law, the recipient shall provide timely notice of the disclosure to the protected individual. ``(C) The Inspector General investigating alleged discrimination under this section may not respond to any inquiry or disclose any information from or about any protected individual alleging such discrimination, except in accordance with the provisions of section 552a of title 5 (commonly referred to as the `Privacy Act'), or as required by any other applicable Federal law.''; and (C) by adding at the end the following new paragraph: ``(5) Upon completion of an investigation under this subsection into alleged misconduct disclosed by the protected individual, the Inspector General shall submit a report of the findings of the investigation to-- ``(A) the person against whom the misconduct is alleged; ``(B) the protected individual concerned; ``(C) the Secretary of Defense or the Administrator of the National Aeronautics and Space Administration, as applicable; and ``(D) the congressional committees of jurisdiction.''; (3) in subsection (c)-- (A) in paragraph (1)(B), by striking ``compensatory damages (including back pay)'' and inserting ``compensatory damages (including double back pay)''; (B) by striking paragraph (7); (C) by redesignating paragraphs (2) through (6) as paragraphs (3) through (7); (D) by inserting after paragraph (1) the following new paragraph: ``(2)(A) A protected individual alleging a reprisal under this section shall have access to the investigative file of the Office of Inspector General in accordance with section 552a of title 5. The investigation by the Office of Inspector General shall be deemed closed for purposes of disclosure under such section when an individual files an appeal to the head of an executive agency or a court of competent jurisdiction. ``(B) In the event a protected individual alleging a reprisal under this section brings a civil action under this subsection, the protected individual and the non-Federal employer (or the Secretary of Defense or the Administrator of the National Aeronautics and Space Administration, as applicable, in the case of a Federal personal services contract involving covered funds), if applicable, shall have access to the investigative file of the Office of Inspector General in accordance with section 552a of title 5. ``(C) The Inspector General may exclude from disclosure-- ``(i) information protected from disclosure by a provision of law; and ``(ii) any additional information the Inspector General determines disclosure of which would impede a continuing investigation, if such information is disclosed once such disclosure would no longer impede such investigation, unless the Inspector General determines that disclosure of law enforcement techniques, procedures, or information could reasonably be expected to risk circumvention of the law or disclose the identity of a confidential source.''; (E) in paragraph (3), as redesignated by subparagraph (C), by striking ``may bring a de novo action at law or equity against the contractor to seek compensatory damages'' and inserting ``may bring a de novo action at law or equity against any entity violating subsection (a) to seek compensatory damages''; and (F) in paragraph (4), as so redesignated, by striking ``paragraph (2)'' and inserting ``paragraph (3)''; (4) by striking subsection (d); (5) by redesignating subsection (e) as subsection (d); (6) by inserting after subsection (d), as so redesignated, the following new subsection: ``(e) General Provisions.--(1) Nothing in this section shall diminish the rights, privileges, or remedies of any protected individual under any Federal or State law, or under any collective bargaining agreement. ``(2) Notwithstanding any other provision of law, a protected individual shall be immune from civil and criminal liability for making the disclosure if the protected individual would be protected from reprisal under subsection (a). The protected individual shall bear the burden required under subsection (a) of proving that the individual would be protected from reprisal under subsection (a) for making the disclosure. This section does not provide a defense against activities unrelated to protected activity under subsection (a). ``(3)(A) Except as provided under subparagraph (C), the rights and remedies provided for in this section may not be waived by any public or private agreement, policy, form, or condition of employment, including by any predispute arbitration agreement. ``(B) Except as provided under subparagraph (C), no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising under this section. ``(C) Notwithstanding subparagraphs (A) and (B), an arbitration provision in a collective bargaining agreement shall be enforceable as to disputes arising under the collective bargaining agreement. ``(4) Any non-Federal employer receiving covered funds (and the head of the applicable agency in the case of a Federal personal services contract involving covered funds) shall prominently post notice on its website and to each employee of the rights and remedies provided under this section in the predominant native languages of the workforce.''; (7) in subsection (f)-- (A) by inserting ``(1)'' before ``Nothing''; (B) by adding ``or other reprisal'' after ``discrimination''; (C) by striking ``an employee'' and inserting ``a protected individual''; (D) by striking ``the employee'' and inserting ``the protected individual''; and (E) by adding at the end the following new paragraph: ``(2) State and local employees may file complaints for relief under this section, and nothing in this section may be construed to preempt, preclude, or limit the protections provided for public or private employees under State or local whistleblower laws.''; (8) in subsection (g)-- (A) by redesignating paragraphs (1), (2), (5), (6), and (7) as paragraphs (2), (9), (10), (1), and (8), respectively; (B) in paragraph (1), as so redesignated, by striking ``means the following'' and all that follows through the period at the end and inserting the following: ``means an arbitrary and capricious exercise of authority by a contracting officer or employee that adversely affects the rights of any individual, or that results in personal gain or advantage to the officer or employee or to preferred other individuals.''; and (C) by inserting after paragraph (4) the following new paragraphs: ``(5) The term `coronavirus pandemic-related program, project, or activity'-- ``(A) means a program, project, or activity of the executive branch of the Federal Government authorized under or carried out using amounts made available under an Act to respond to or to provide aid or assistance to address, relief from, or funding to address the outbreak of COVID-19 that is enacted before, on, or after the date of enactment of this paragraph; and ``(B) includes any program, project, or activity of the executive branch of the Federal Government authorized under or carried out using amounts made available under-- ``(i) the Paycheck Protection Program and Health Care Enhancement Act (Public Law 116-139), or an amendment made by that Act; ``(ii) the CARES Act (Public Law 116-136) or an amendment made by that Act; ``(iii) the Families First Coronavirus Response Act (Public Law 116-127), or an amendment made by that Act; ``(iv) the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Public Law 116-123), or an amendment made by that Act; or ``(v) division M or N of the Consolidated Appropriations Act, 2021 (Public Law 116-260), or an amendment made by that division. ``(6) The term `covered funds' means any contract, subcontract, grant, subgrant, loan, loan guarantee, or other payment for which-- ``(A) the Federal Government provides any portion of the funds or property that is provided, requested, or demanded; or ``(B) any portion of the funds are appropriated or otherwise made available under or to carry out a Coronavirus pandemic-related program, project, or activity. ``(7) The term `employee'-- ``(A) except as provided under subparagraph (B), means an individual performing services on behalf of an employer, including any individual working for an employer under a grant or contract with such employer (including a contractor, subcontractor, grantee, subgrantee, or agent of an employer); and ``(B) does not include any Federal employee or member of the uniformed services (as that term is defined in section 101(a)(5) of title 10).''; and (D) by inserting after paragraph (10), as so redesignated, the following new paragraphs: ``(11) The term `non-Federal employer'-- ``(A) means any employer-- ``(i) with respect to covered funds-- ``(I) the contractor, subcontractor, grantee, subgrantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, subgrantee, or recipient is an employer; and ``(II) any professional membership organization, certification or other professional body, any agent or licensee of the Federal Government, or any person acting directly or indirectly in the interest of an employer receiving covered funds; or ``(ii) with respect to covered funds received by a State or local government, the State or [[Page S7383]] local government receiving the funds and any contractor or subcontractor of the State or local government; and ``(B) does not mean any department, agency, or other entity of the Federal Government, except with respect to a personal services contractor. ``(12) The term `protected individual' means-- ``(A) a contractor, subcontractor, grantee, or subgrantee; ``(B) an employee, applicant, or former employee of a contractor, subcontractor, grantee, or subgrantee; or ``(C) a personal services contractor who engages in activity for which any discrimination is prohibited under subsection (a). ``(13) The term `State or local government' means-- ``(A) the government of each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, or any other territory or possession of the United States; or ``(B) the government of any political subdivision of a government listed in subparagraph (A).''. (b) Civilian Contracts.--Section 4712 of title 41, United States Code, is amended-- (1) in subsection (a)-- (A) by amending paragraph (1) to read as follows: ``(1) In general.--A protected individual may not be discharged, demoted, harassed, blacklisted, prejudiced by any action or lack of action, or otherwise discriminated against for disclosing, being perceived as disclosing, or preparing to disclose (including assisting in disclosing, being perceived as assisting in disclosing, and including a disclosure made in the ordinary course of job duties) to a person or body described in paragraph (2) information that the protected individual reasonably believes is evidence of misconduct that violates, obstructs, or undermines any law, rule, or regulation related to any Federal contract (including the competition for or negotiation of a contract) or grant, including any statute, rule, or regulation with respect to any Coronavirus pandemic-related program, project, or activity, and also including-- ``(A)(i) gross mismanagement of an agency contract, subcontract, grant, or subgrant relating to covered funds; ``(ii) a gross waste of covered funds; ``(iii) a substantial and specific danger to worker or public health or safety; ``(iv) an abuse of authority related to the distribution, implementation, or use of covered funds, including conflict of interest or partiality; and ``(v) any violation of any statute, rule, or regulation related to an agency contract, subcontract (including the competition for or negotiation of a contract or subcontract), grant, or subgrant, awarded or issued relating to covered funds; or ``(B) refusing to obey an order that the protected individual reasonably believes would require that individual to violate a statute, rule, or regulation with respect to any covered funds, including any coronavirus pandemic-related program, project, or activity.''; (B) in paragraph (2)-- (i) in subparagraph (A), by striking ``or a representative of a committee of Congress'' and inserting ``, a representative of a committee of Congress, or a commission of Congress''; (ii) in subparagraph (B), by inserting ``, including the Special Inspector General for Pandemic Relief and any other Office of Inspector General established by law'' after ``Inspector General''; (iii) in subparagraph (G), by striking ``who has the responsibility to investigate'' and inserting ``authorized to investigate''; and (iv) by adding after subparagraph (G) the following new subparagraphs: ``(H) The Pandemic Response Accountability Committee. ``(I) An officer or representative of a labor organization. ``(J) The head of an executive agency or a designee of such agency head.''; and (C) in paragraph 3(A)-- (i) by striking ``an employee'' and inserting ``a protected individual''; and (ii) by striking ``contract or grant'' and inserting ``contract, subcontract, grant, or subgrant''; (2) in subsection (b)-- (A) in paragraph (1)-- (i) by striking ``A person who believes'' and inserting ``Any person described under subsection (a)(1) who believes''; and (ii) by inserting ``, who shall review the complaint for investigation, and shall investigate the alleged misconduct disclosed by the protected individual if there previously has not been such an investigation or if the Inspector General determines that the original investigation was biased or otherwise inadequate'' after ``to the Inspector General of the executive agency involved''; (B) by amending paragraph (3) to read as follows: ``(3) Protection of whistleblower identity.-- ``(A) In general.--A person or body described in subsection (a)(2) that receives information under paragraph (1) and any person or body to which the officer or entity discloses the information may not exercise discretion to respond to any inquiry or disclose the identity or identifying information of the protected individual providing the information without prior explicit written consent of the protected individual. ``(B) Notice.--If disclosure of the identity or identifying information of a protected individual providing information under paragraph (1) is required by law, the recipient shall provide timely notice of the disclosure to the protected individual. ``(C) Privacy of information.--The Inspector General investigating alleged discrimination under this section may not respond to any inquiry or disclose any information from or about any protected individual alleging such discrimination, except in accordance with the provisions of section 552a of title 5 (commonly referred to as the `Privacy Act'), or as required by any other applicable Federal law.''; and (C) by adding at the end the following new paragraph: ``(5) Report.--Upon completion of an investigation under this subsection into alleged misconduct disclosed by the protected individual, the Inspector General shall submit a report of the findings of the investigation to-- ``(A) the person; ``(B) the contractor, subcontractor, grantee, or subgrantee concerned; ``(C) the head of the agency; and ``(D) the congressional committees of jurisdiction.''; (3) in subsection (c)-- (A) in paragraph (1)(B), by striking ``compensatory damages (including back pay)'' and inserting ``compensatory damages (including double back pay)''; (B) by striking paragraph (7); (C) by redesignating paragraphs (2) through (6) as paragraphs (3) through (7); (D) by inserting after paragraph (1) the following new paragraph: ``(2) Access to investigative file.-- ``(A) In general.--A protected individual alleging a reprisal under this section shall have access to the investigative file of the Office of Inspector General in accordance with section 552a of title 5. The investigation by the Office of Inspector General shall be deemed closed for purposes of disclosure under such section when an individual files an appeal to the head of an executive agency or a court of competent jurisdiction. ``(B) Civil action.--In the event a protected individual alleging a reprisal under this section brings a civil action under this subsection, the protected individual and the non- Federal employer (or the head of the applicable executive agency in the case of a Federal personal services contract involving covered funds), if applicable, shall have access to the investigative file of the Office of Inspector General in accordance with section 552a of title 5. ``(C) Exception.--The Inspector General may exclude from disclosure-- ``(i) information protected from disclosure by a provision of law; and ``(ii) any additional information the Inspector General determines disclosure of which would impede a continuing investigation, if such information is disclosed once such disclosure would no longer impede such investigation, unless the Inspector General determines that disclosure of law enforcement techniques, procedures, or information could reasonably be expected to risk circumvention of the law or disclose the identity of a confidential source.''; (E) in paragraph (3), as redesignated by subparagraph (C), by striking ``may bring a de novo action at law or equity against the contractor, subcontractor, grantee, or subgrantee to seek compensatory damages'' and inserting ``may bring a de novo action at law or equity against any entity violating subsection (a) to seek compensatory damages''; and (F) in paragraph (4), as so redesignated, by striking ``paragraph (2)'' and inserting ``paragraph (3)''; (4) by striking subsection (d); (5) by redesignating subsections (e) and (f) as subsections (d) and (e), respectively; (6) in subsection (d), as redesignated by paragraph (5)-- (A) by inserting ``(1)'' before ``Nothing''; (B) by adding ``or other reprisal'' after ``discrimination''; (C) by striking ``an employee'' and inserting ``a protected individual''; (D) by striking ``the employee'' and inserting ``the protected individual''; and (E) by adding at the end the following new paragraph: ``(2) State and local employees may file complaints for relief under this section, and nothing in this section may be construed to preempt, preclude, or limit the protections provided for public or private employees under State or local whistleblower laws.''; (7) by inserting after subsection (e), as so redesignated, the following new subsection: ``(f) General Provisions.-- ``(1) Rights retained by employee.--Nothing in this section shall diminish the rights, privileges, or remedies of any protected individual under any Federal or State law, or under any collective bargaining agreement. ``(2) Liability.--Notwithstanding any other provision of law, a protected individual shall be immune from civil and criminal liability for making the disclosure if the protected individual would be protected from reprisal under subsection (a). The protected individual shall bear the burden required under subsection (a) of proving that the individual would be protected from reprisal under subsection (a) for making the disclosure. This paragraph does not provide a defense against activities unrelated to protected activity under subsection (a). [[Page S7384]] ``(3) Nonenforceability of certain provisions waiving or overriding rights and remedies or requiring arbitration of disputes.-- ``(A) Waiver of rights and remedies.--Except as provided under subparagraph (C), the rights and remedies provided for in this section may not be waived by any public or private agreement, policy, form, or condition of employment, including by any predispute arbitration agreement. ``(B) Predispute arbitration agreements.--Except as provided under subparagraph (C), no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a dispute arising under this section. ``(C) Exception for collective bargaining agreements.-- Notwithstanding subparagraphs (A) and (B), an arbitration provision in a collective bargaining agreement shall be enforceable as to disputes arising under the collective bargaining agreement. ``(4) Requirement to post notice of rights and remedies.-- Any non-Federal employer receiving covered funds (and the head of the applicable agency in the case of a Federal personal services contract involving covered funds) shall prominently post notice on its website and to each employee of the rights and remedies provided under this section, in the predominant native languages of the workforce.''; and (8) in subsection (g)-- (A) in paragraph (1), by striking ``that is inconsistent'' and all that follows through the period at the end and inserting ``by a contracting officer or employee that adversely affects the rights of any individual, or that results in personal gain or advantage to the officer or employee or to preferred other individuals.''; (B) by redesignating paragraph (2) as paragraph (5); (C) by inserting after paragraph (1) the following new paragraphs: ``(2) The term `coronavirus pandemic-related program, project, or activity'-- ``(A) means a program, project, or activity of the executive branch of the Federal Government authorized under or carried out using amounts made available under an Act to respond to or to provide aid or assistance to address, relief from, or funding to address the outbreak of COVID-19 that is enacted before, on, or after the date of enactment of this paragraph; and ``(B) includes any program, project, or activity of the executive branch of the Federal Government authorized under or carried out using amounts made available under-- ``(i) the Paycheck Protection Program and Health Care Enhancement Act (Public Law 116-139), or an amendment made by that Act; ``(ii) the CARES Act (Public Law 116-136), or an amendment made by that Act; ``(iii) the Families First Coronavirus Response Act (Public Law 116-127), or an amendment made by that Act; ``(iv) the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Public Law 116-123), or an amendment made by that Act; or ``(v) division M or N of the Consolidated Appropriations Act, 2021 (Public Law 116-260), or an amendment made by that division. ``(3) The term `covered funds' means any contract, subcontract, grant, subgrant, loan, loan guarantee, or other payment for which-- ``(A) the Federal Government provides any portion of the funds or property that is provided, requested, or demanded; or ``(B) any portion of the funds are appropriated or otherwise made available under or to carry out a Coronavirus pandemic-related program, project, or activity. ``(4) The term `employee'-- ``(A) except as provided under subparagraph (B), means an individual performing services on behalf of an employer, including any individual working for an employer under a grant or contract with such employer (including a contractor, subcontractor, grantee, subgrantee, or agent of an employer); and ``(B) does not include any Federal employee or member of the uniformed services (as that term is defined in section 101(a)(5) of title 10).''; and (D) by inserting after paragraph (5), as redesignated by subparagraph (B), the following new paragraphs: ``(6) The term `non-Federal employer'-- ``(A) means any employer-- ``(i) with respect to covered funds-- ``(I) the contractor, subcontractor, grantee, subgrantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, subgrantee, or recipient is an employer; and ``(II) any professional membership organization, certification or other professional body, any agent or licensee of the Federal Government, or any person acting directly or indirectly in the interest of an employer receiving covered funds; or ``(ii) with respect to covered funds received by a State or local government, the State or local government receiving the funds and any contractor or subcontractor of the State or local government; and ``(B) does not mean any department, agency, or other entity of the Federal Government, except with respect to a personal services contractor. ``(7) The term `protected individual' means-- ``(A) a contractor, subcontractor, grantee, or subgrantee; ``(B) an employee, applicant or former employee of a contractor, subcontractor, grantee, or subgrantee; or ``(C) a personal services contractor who engages in activity for which any discrimination is prohibited under subsection (a). ``(8) The term `State or local government' means-- ``(A) the government of each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, or any other territory or possession of the United States; or ``(B) the government of any political subdivision of a government listed in subparagraph (A).''. (c) Complaint Portal.--The Special Inspector General for Pandemic Relief, the Pandemic Relief Accountability Committee, and the Congressional Oversight Commission shall each establish a public website where any individual who believes that the individual has been subjected to a reprisal prohibited under subsection (a) of section 2409 of title 10, United States Code, or subsection (a) of section 4712 of title 41, United States Code, as amended by subsections (a) and (b), respectively, of this section, may submit a complaint regarding the reprisal. Any complaint so submitted shall be transmitted to the relevant Office of Inspector General for enforcement in accordance with such sections, including notice to the complainant of the referral and relevant procedures. ______