H.R. 7227, COVID–19 Whistleblower Protection Act
Summary
H.R. 7227 was introduced in the House of Representatives on June 15, 2020, by Speier, for herself and others, and referred to the Committee on Education and Labor. It may be cited as the COVID–19 Whistleblower Protection Act. Section 3 provides that a protected individual may not be discharged, demoted, blacklisted, or otherwise discriminated against for disclosing information the individual reasonably believes is evidence of misconduct with respect to a Coronavirus pandemic-related program, project, or activity. Subsection (e) has the Special Inspector General for Pandemic Relief, the Pandemic Relief Accountability Committee, and the Congressional Oversight Commission each establish a public website for complaints. Subsection (f) appropriates $20,000,000 to the Secretary of Labor.
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Cite this document
“H.R. 7227, COVID–19 Whistleblower Protection Act.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/bills-bills-116hr7227ih-bills-116hr7227ih/
, SHA-256 8564e3f754645e041829274d16c72a30ec2e5d4137f07e96d6754f6bb9347924.Full text
I
116TH CONGRESS
2D SESSION
H. R. 7227
To protect certain whistleblowers seeking to ensure accountability and over-
sight of the Nation’s COVID–19 pandemic response, and for other pur-
poses.
IN THE HOUSE OF REPRESENTATIVES
JUNE 15, 2020
Ms. SPEIER (for herself, Mr. RASKIN, Mr. COHEN, Mrs. HAYES, Ms. NORTON,
Ms. TLAIB, and Miss RICE of New York) introduced the following bill;
which was referred to the Committee on Education and Labor
A BILL
To protect certain whistleblowers seeking to ensure account-
ability and oversight of the Nation’s COVID–19 pan-
demic response, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘COVID–19 Whistle-
5 blower Protection Act’’.
6 SEC. 2. DEFINITIONS.
7 In this Act—
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8 (1) the term ‘‘abuse of authority’’ means an ar-
9 bitrary and capricious exercise of authority by a con-
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2
1 tracting officer or employee that adversely affects
2 the rights of any individual, or that results in per-
3 sonal gain or advantage to the officer or employee
4 or to preferred other individuals;
5 (2) the term ‘‘CARES Act’’ means the CARES
6 Act (Public Law 116–136);
7 (3) the term ‘‘Coronavirus pandemic-related
8 program, project, or activity’’—
9 (A) means a program, project, or activity
10 of the executive branch of the Federal Govern-
11 ment authorized under or carried out using
12 amounts made available under an Act to re-
13 spond to or to provide aid or assistance to ad-
14 dress, relief from, or funding to address the
15 outbreak of COVID–19 that is enacted before,
16 on, or after the date of enactment of this Act;
17 and
18 (B) includes any program, project, or ac-
19 tivity of the executive branch of the Federal
20 Government authorized under or carried out
21 using amounts made available under—
22 (i) the Paycheck Protection Program
23 and Health Care Enhancement Act (Public
24 Law 116–139), or an amendment made by
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25 that Act;
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1 (ii) the CARES Act, or an amend-
2 ment made by that Act;
3 (iii) the Families First Coronavirus
4 Response Act (Public Law 116–127), or an
5 amendment made by that Act; or
6 (iv) the Coronavirus Preparedness and
7 Response Supplemental Appropriations
8 Act, 2020 (Public Law 116–123), or an
9 amendment made by that Act;
10 (4) the term ‘‘covered funds’’ means any con-
11 tract, subcontract, grant, subgrant, loan, loan guar-
12 antee, or other payment for which—
13 (A) the Federal Government provides any
14 portion of the funds or property that is pro-
15 vided, requested, or demanded; and
16 (B) any portion of the funds are appro-
17 priated or otherwise made available under or to
18 carry out a Coronavirus pandemic-related pro-
19 gram, project, or activity;
20 (5) the term ‘‘employee’’—
21 (A) except as provided under subparagraph
22 (B), means an individual performing services on
23 behalf of an employer, including any individual
24 working for an employer under a contract with
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1 such employer (including a contractor, subcon-
2 tractor, or agent of an employer); and
3 (B) does not include any Federal employee
4 or member of the uniformed services (as that
5 term is defined in section 101(a)(5) of title 10,
6 United States Code);
7 (6) the term ‘‘non-Federal employer’’—
8 (A) means any employer—
9 (i) with respect to covered funds—
10 (I) the contractor, subcontractor,
11 grantee, subgrantee, or recipient, as
12 the case may be, if the contractor,
13 subcontractor, grantee, subgrantee, or
14 recipient is an employer; and
15 (II) any professional membership
16 organization, certification or other
17 professional body, any agent or li-
18 censee of the Federal Government, or
19 any person acting directly or indi-
20 rectly in the interest of an employer
21 receiving covered funds; or
22 (ii) with respect to covered funds re-
23 ceived by a State or local government, the
24 State or local government receiving the
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1 funds and any contractor or subcontractor
2 of the State or local government; and
3 (B) does not mean any department, agen-
4 cy, or other entity of the Federal Government;
5 (7) the term ‘‘protected individual’’ means—
6 (A) an employee of, former employee of, or
7 individual seeking employment with, any non-
8 Federal employer receiving covered funds; or
9 (B) a Federal personal services contractor
10 receiving covered funds, former such Federal
11 personal services contractor, or applicant for a
12 Federal personal services contract involving
13 such funds;
14 (8) the term ‘‘reprisal’’ means an action (or, as
15 applicable, inaction) that is discharging, demoting,
16 blacklisting, or acting or failing to take an action in
17 a manner prejudicial against, or otherwise discrimi-
18 nating against in any way (including in the hiring
19 process and including by the threat of any such ac-
20 tion or inaction) a protected individual as described
21 in section 3(a)(1) for a reason described in subpara-
22 graph (A) or (B) of such section; and
23 (9) the term ‘‘State or local government’’
24 means—
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1 (A) the government of each of the several
2 States, the District of Columbia, the Common-
3 wealth of Puerto Rico, Guam, American Samoa,
4 the Virgin Islands, the Commonwealth of the
5 Northern Mariana Islands, or any other terri-
6 tory or possession of the United States; or
7 (B) the government of any political sub-
8 division of a government listed in subparagraph
9 (A).
10 SEC. 3. PROTECTING WHISTLEBLOWERS.
11 (a) PROHIBITION OF REPRISALS.—
12 (1) IN GENERAL.—A protected individual may
13 not be discharged, demoted, blacklisted, prejudiced
14 by any action or lack of action, or otherwise dis-
15 criminated against in any way (including in the hir-
16 ing process and including by the threat of any such
17 action or inaction) for—
18 (A) disclosing, being perceived as dis-
19 closing, or preparing to disclose (including as-
20 sisting in disclosing, being perceived as assist-
21 ing in disclosing, or preparing to assist in dis-
22 closing and including a disclosure made in the
23 ordinary course of the duties of the protected
24 individual) to an officer or entity described in
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25 paragraph (2) information that the protected
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1 individual reasonably believes is evidence of
2 misconduct that violates, obstructs, or under-
3 mines any statute, rule, or regulation with re-
4 spect to any Coronavirus pandemic-related pro-
5 gram, project, or activity, including—
6 (i) gross mismanagement of an agency
7 contract, subcontract, grant, or subgrant
8 relating to covered funds;
9 (ii) a gross waste of covered funds;
10 (iii) a substantial and specific danger
11 to public health or safety;
12 (iv) an abuse of authority related to
13 the distribution, implementation, or use of
14 covered funds, including conflict of interest
15 or partiality; and
16 (v) a violation of any statute, rule, or
17 regulation related to an agency contract,
18 subcontract (including the competition for
19 or negotiation of a contract or sub-
20 contract), grant, or subgrant, awarded or
21 issued relating to covered funds; or
22 (B) refusing to obey an order that the pro-
23 tected individual reasonably believes would re-
24 quire that individual to violate a statute, rule,
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1 or regulation with respect to any Coronavirus
2 pandemic-related program, project, or activity.
3 (2) OFFICERS AND ENTITIES.—The officers and
4 entities described in this paragraph are—
5 (A) the Pandemic Response Accountability
6 Committee;
7 (B) an inspector general, including the
8 Special Inspector General for Pandemic Relief;
9 (C) the Congressional Oversight Commis-
10 sion;
11 (D) the Comptroller General of the United
12 States;
13 (E) a Member of Congress;
14 (F) a congressional committee;
15 (G) a State or Federal regulatory or law
16 enforcement agency;
17 (H)(i) an individual with supervisory au-
18 thority over a protected individual; or
19 (ii) another individual who—
20 (I) has authority to investigate, dis-
21 cover, or terminate misconduct; and
22 (II) works for the non-Federal em-
23 ployer (in the case of a protected individual
24 described in section 2(7)(A)), or the Fed-
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25 eral Government (in the case of a pro-
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1 tected individual described in section
2 2(7)(B));
3 (I) a court or grand jury;
4 (J) an officer or representative of a labor
5 organization; or
6 (K) the head of a Federal agency or a des-
7 ignee of such a head.
8 (3) APPLICATION.—
9 (A) IN GENERAL.—For the purposes of
10 paragraph (1)—
11 (i) a protected individual who initiates
12 or provides evidence of misconduct by a
13 contractor, subcontractor, grantee, or sub-
14 grantee in any judicial or administrative
15 proceeding relating to waste, fraud, or
16 abuse in connection with a Federal con-
17 tract or grant shall be deemed to have
18 made a disclosure covered by such para-
19 graph; and
20 (ii) any discharge, demotion, discrimi-
21 nation, or other reprisal described in para-
22 graph (1) is prohibited even if it is under-
23 taken at the request of an executive branch
24 officer or employee, unless the request
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25 takes the form of a non-discretionary di-
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1 rective and is within the authority of the
2 executive branch official making the re-
3 quest.
4 (B) PROTECTION OF WHISTLEBLOWER
5 IDENTITY.—
6 (i) IN GENERAL.—Except as required
7 by law, an officer or entity described in
8 paragraph (2) that receives information
9 under paragraph (1) and any individual or
10 entity to which the officer or entity dis-
11 closes the information may not disclose the
12 identity or identifying information of the
13 protected individual providing the informa-
14 tion without explicit written consent of the
15 protected individual.
16 (ii) NOTICE.—If disclosure of the
17 identity or identifying information of a
18 protected individual providing information
19 under paragraph (1) is required by law,
20 the recipient shall provide timely notice of
21 the disclosure to the protected individual.
22 (b) INVESTIGATION OF COMPLAINTS.—
23 (1) COMPLAINTS.—
24 (A) IN GENERAL.—A protected individual
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25 who believes that the individual has been sub-
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1 jected to a reprisal prohibited under subsection
2 (a) may, within 3 years after learning of the al-
3 leged reprisal, submit a complaint regarding the
4 reprisal to the Secretary of Labor in accordance
5 with paragraph (2).
6 (B) RESPONSE.—Not later than 60 days
7 after the submission of a complaint under sub-
8 paragraph (A), the applicable non-Federal em-
9 ployer (or the applicable agency head in the
10 case of a Federal personal services contract in-
11 volving covered funds) shall submit an answer
12 to the complaint to the Secretary of Labor.
13 (2) REMEDY AND ENFORCEMENT AUTHOR-
14 ITY.—
15 (A) RULES AND PROCEDURES.—Except to
16 the extent provided otherwise in this section,
17 any action alleging a reprisal prohibited under
18 subsection (a) shall be governed, to the max-
19 imum extent practicable, by the rules and pro-
20 cedures for administrative and judicial enforce-
21 ment, including for investigations, civil actions,
22 appeals, and relief, set forth under section
23 7623(d) of the Internal Revenue Code of 1986.
24 (B) BURDEN OF PROOF.—The Secretary
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25 of Labor, or the officer presiding in a judicial
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1 or administrative proceeding, shall apply the
2 legal burdens of proof specified in section
3 1221(e) of title 5, United States Code, in deter-
4 mining whether a reprisal prohibited under sub-
5 section (a) has occurred in accordance with the
6 rules and procedures under subparagraph (A).
7 (C) ACCESS TO INVESTIGATIVE FILE OF
8 THE SECRETARY OF LABOR.—
9 (i) IN GENERAL.—A protected indi-
10 vidual alleging a reprisal under this section
11 shall have access to the investigation file of
12 the Secretary of Labor in accordance with
13 section 552a of title 5, United States Code
14 (commonly referred to as the ‘‘Privacy
15 Act’’). The investigation of the Secretary
16 of Labor shall be deemed closed for pur-
17 poses of disclosure under such section
18 when an individual files an appeal to an
19 agency head or a court of competent juris-
20 diction.
21 (ii) CIVIL ACTION.—In the event a
22 protected individual alleging a reprisal
23 under this section brings a civil action
24 under this subsection, the protected indi-
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1 the head of the applicable agency in the
2 case of a Federal personal services con-
3 tract involving covered funds), if applica-
4 ble, shall have access to the investigative
5 file of the Secretary of Labor in accord-
6 ance with the section 552a of title 5,
7 United States Code.
8 (iii) EXCEPTION.—The Secretary of
9 Labor may exclude from disclosure—
10 (I) information protected from
11 disclosure by a provision of law; and
12 (II) any additional information
13 the Secretary of Labor determines
14 disclosure of which would impede a
15 continuing investigation, if such infor-
16 mation is disclosed once such disclo-
17 sure would no longer impede such in-
18 vestigation, unless the Secretary of
19 Labor determines that disclosure of
20 law enforcement techniques, proce-
21 dures, or information could reasonably
22 be expected to risk circumvention of
23 the law or disclose the identity of a
24 confidential source.
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1 (iv) PRIVACY OF INFORMATION.—The
2 Secretary of Labor investigating an alleged
3 reprisal under this section may not re-
4 spond to any inquiry or disclose any infor-
5 mation from or about any protected indi-
6 vidual alleging such reprisal, except in ac-
7 cordance with the provisions of section
8 552a of title 5, United States Code, or as
9 required by any other applicable Federal
10 law.
11 (c) GENERAL PROVISIONS.—
12 (1) RIGHTS RETAINED BY EMPLOYEE.—Noth-
13 ing in this section shall diminish the rights, privi-
14 leges, or remedies of any protected individual under
15 any Federal or State law, or under any collective
16 bargaining agreement.
17 (2) LIABILITY.—Notwithstanding any other
18 provision of law, a protected individual shall be im-
19 mune from civil and criminal liability with respect to
20 a disclosure by the individual if the individual would
21 be protected from reprisal under subsection (a) for
22 making the disclosure. The protected individual shall
23 bear the burden of proving that the individual would
24 be protected from reprisal under subsection (a) for
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1 (3) NONENFORCEABILITY OF CERTAIN PROVI-
2 SIONS WAIVING RIGHTS AND REMEDIES OR REQUIR-
3 ING ARBITRATION OF DISPUTES.—
4 (A) WAIVER OF RIGHTS AND REMEDIES.—
5 Except as provided under subparagraph (C),
6 the rights and remedies provided for in this sec-
7 tion may not be waived by any public or private
8 agreement, policy, form, or condition of employ-
9 ment, including by any predispute arbitration
10 agreement.
11 (B) PREDISPUTE ARBITRATION AGREE-
12 MENTS.—Except as provided under subpara-
13 graph (C), no predispute arbitration agreement
14 shall be valid or enforceable if it requires arbi-
15 tration of a dispute arising under this section.
16 (C) EXCEPTION FOR COLLECTIVE BAR-
17 GAINING AGREEMENTS.—Notwithstanding sub-
18 paragraphs (A) and (B), an arbitration provi-
19 sion in a collective bargaining agreement shall
20 be enforceable as to disputes arising under the
21 collective bargaining agreement.
22 (4) REQUIREMENT TO POST NOTICE OF RIGHTS
23 AND REMEDIES.—Any non-Federal employer receiv-
24 ing covered funds (and the head of the applicable
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1 contract involving covered funds) shall post notice of
2 the rights and remedies provided under this section.
3 (d) RULES OF CONSTRUCTION.—
4 (1) NO IMPLIED AUTHORITY TO RETALIATE
5 FOR NON-PROTECTED DISCLOSURES.—Nothing in
6 this section may be construed to—
7 (A) authorize the discharge of, demotion
8 of, or discrimination or other reprisal against a
9 protected individual for a disclosure other than
10 a disclosure protected by subsection (a); or
11 (B) modify or derogate from a right or
12 remedy otherwise available to the protected in-
13 dividual.
14 (2) RELATIONSHIP TO STATE LAWS.—Nothing
15 in this section may be construed to preempt, pre-
16 clude, or limit the protections provided for public or
17 private employees under State whistleblower laws.
18 (e) COMPLAINT PORTAL.—The Special Inspector
19 General for Pandemic Relief, the Pandemic Relief Ac-
20 countability Committee, and the Congressional Oversight
21 Commission shall each establish a public website where
22 any individual who believes that the individual has been
23 subjected to a reprisal prohibited under subsection (a)
24 may submit a complaint regarding the reprisal. Such com-
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1 plaints shall be transmitted to the Secretary of Labor for
2 enforcement in accordance with this section.
3 (f) FUNDING.—There is appropriated to the Sec-
4 retary of Labor for the fiscal year ending September 30,
5 2020, out of any money in the Treasury not otherwise ap-
6 propriated, $20,000,000 to carry out this Act, to remain
7 available until expended.
Æ
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