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S. 3963, COVID–19 Whistleblower Protection Act

Summary

Senate bill 3963 of the 116th Congress, 2D Session, is the COVID–19 Whistleblower Protection Act. Harris introduced it on June 15, 2020 with Warren, Markey, Hirono, Wyden, Baldwin, Klobuchar, Sanders, Blumenthal, Durbin, and Smith, and it was referred to the Committee on Homeland Security and Governmental Affairs. Its stated aim is to protect certain whistleblowers seeking accountability and oversight of the Nation’s COVID–19 pandemic response. Section 3 provides that a protected individual may not be discharged, demoted, or blacklisted for disclosing information the individual reasonably believes is evidence of misconduct related to a Coronavirus pandemic-related program. The bill appropriates $20,000,000 to the Secretary of Labor to carry out the Act, to remain available until expended.

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Congressional materials
Document type
Bills Bills 116S3963Is Bills 116S3963Is
Case
Bills Bills 116S3963Is Bills 116S3963Is

Cite this document

“S. 3963, COVID–19 Whistleblower Protection Act.” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/bills-bills-116s3963is-bills-116s3963is/, SHA-256 9322a8d14e7fb305a39aba494b038c9b9c5f6847003124b3fce986ecb085b4ac.

Full text

                                                                                                                                                                        II




                                                                     116TH CONGRESS
                                                                        2D SESSION
                                                                                                            S. 3963
                                                                     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 SENATE OF THE UNITED STATES
                                                                                                   JUNE 15, 2020
                                                                     Ms. HARRIS (for herself, Ms. WARREN, Mr. MARKEY, Ms. HIRONO, Mr.
                                                                         WYDEN, Ms. BALDWIN, Ms. KLOBUCHAR, Mr. SANDERS, Mr.
                                                                         BLUMENTHAL, Mr. DURBIN, and Ms. SMITH) introduced the following
                                                                         bill; which was read twice and referred to the Committee on Homeland
                                                                         Security and Governmental Affairs




                                                                                                               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.




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                                                                       7              In this Act—



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                                                                       1                        (1) the term ‘‘abuse of authority’’ means an ar-
                                                                       2              bitrary and capricious exercise of authority by a con-
                                                                       3              tracting officer or employee that adversely affects
                                                                       4              the rights of any individual, or that results in per-
                                                                       5              sonal gain or advantage to the officer or employee
                                                                       6              or to preferred other individuals;
                                                                       7                        (2) the term ‘‘CARES Act’’ means the CARES
                                                                       8              Act (Public Law 116–136);
                                                                       9                        (3) the term ‘‘Coronavirus pandemic-related
                                                                     10               program, project, or activity’’—
                                                                     11                                  (A) means a program, project, or activity
                                                                     12                         of the executive branch of the Federal Govern-
                                                                     13                         ment authorized under or carried out using
                                                                     14                         amounts made available under an Act to re-
                                                                     15                         spond to or to provide aid or assistance to ad-
                                                                     16                         dress, relief from, or funding to address the
                                                                     17                         outbreak of COVID–19 that is enacted before,
                                                                     18                         on, or after the date of enactment of this Act;
                                                                     19                         and
                                                                     20                                  (B) includes any program, project, or ac-
                                                                     21                         tivity of the executive branch of the Federal
                                                                     22                         Government authorized under or carried out
                                                                     23                         using amounts made available under—
                                                                     24                                          (i) the Paycheck Protection Program



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                                                                     25                                  and Health Care Enhancement Act (Public


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                                                                       1                                 Law 116–139), or an amendment made by
                                                                       2                                 that Act;
                                                                       3                                         (ii) the CARES Act, or an amend-
                                                                       4                                 ment made by that Act;
                                                                       5                                         (iii) the Families First Coronavirus
                                                                       6                                 Response Act (Public Law 116–127), or an
                                                                       7                                 amendment made by that Act; or
                                                                       8                                         (iv) the Coronavirus Preparedness and
                                                                       9                                 Response               Supplemental                    Appropriations
                                                                     10                                  Act, 2020 (Public Law 116–123), or an
                                                                     11                                  amendment made by that Act;
                                                                     12                         (4) the term ‘‘covered funds’’ means any con-
                                                                     13               tract, subcontract, grant, subgrant, loan, loan guar-
                                                                     14               antee, or other payment for which—
                                                                     15                                  (A) the Federal Government provides any
                                                                     16                         portion of the funds or property that is pro-
                                                                     17                         vided, requested, or demanded; and
                                                                     18                                  (B) any portion of the funds are appro-
                                                                     19                         priated or otherwise made available under or to
                                                                     20                         carry out a Coronavirus pandemic-related pro-
                                                                     21                         gram, project, or activity;
                                                                     22                         (5) the term ‘‘employee’’—
                                                                     23                                  (A) except as provided under subparagraph
                                                                     24                         (B), means an individual performing services on



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                                                                     25                         behalf of an employer, including any individual


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                                                                       1                        working for an employer under a contract with
                                                                       2                        such employer (including a contractor, subcon-
                                                                       3                        tractor, or agent of an employer); and
                                                                       4                                 (B) does not include any Federal employee
                                                                       5                        or member of the uniformed services (as that
                                                                       6                        term is defined in section 101(a)(5) of title 10,
                                                                       7                        United States Code);
                                                                       8                        (6) the term ‘‘non-Federal employer’’—
                                                                       9                                 (A) means any employer—
                                                                     10                                          (i) with respect to covered funds—
                                                                     11                                                   (I) the contractor, subcontractor,
                                                                     12                                          grantee, subgrantee, or recipient, as
                                                                     13                                          the case may be, if the contractor,
                                                                     14                                          subcontractor, grantee, subgrantee, or
                                                                     15                                          recipient is an employer; and
                                                                     16                                                   (II) any professional membership
                                                                     17                                          organization, certification or other
                                                                     18                                          professional body, any agent or li-
                                                                     19                                          censee of the Federal Government, or
                                                                     20                                          any person acting directly or indi-
                                                                     21                                          rectly in the interest of an employer
                                                                     22                                          receiving covered funds; or
                                                                     23                                          (ii) with respect to covered funds re-
                                                                     24                                  ceived by a State or local government, the



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                                                                     25                                  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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                                                                     25                                  vidual and the non-Federal employer (or


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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 section 552a of title 5, United
                                                                        7                                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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                                                                     25               making the disclosure.


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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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                                                                     25               agency in the case of a Federal personal services


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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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                                                                                                                            17
                                                                       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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