49 U.S.C. § 30171 — Protection of employees providing motor

Page 805 TITLE 49—TRANSPORTATION § 30171 injury; and (2) the person corrects any im- proper reports or failure to report within a reasonable time. (B) REASONABLE TIME AND SUFFICIENCY OF CORRECTION.—The Secretary shall establish by regulation what constitutes a reasonable time for the purposes of subparagraph (A) and what manner of correction is sufficient for purposes of subparagraph (A). The Sec- retary shall issue a final rule under this sub- paragraph within 90 days of the date of the enactment of this section. (C) EFFECTIVE DATE.—Subsection (a) shall not take effect before the final rule under subparagraph (B) takes effect. (b) COORDINATION WITH DEPARTMENT OF JUS- TICE.—The Attorney General may bring an ac- tion, or initiate grand jury proceedings, for a violation of subsection (a) only at the request of the Secretary of Transportation. (Added Pub. L. 106–414, § 5(b)(1), Nov. 1, 2000, 114 Stat. 1803.) Editorial Notes REFERENCES IN TEXT Section 1365(g)(3) of title 18, referred to in subsec. (a)(1), was redesignated section 1365(h)(3) of title 18 by Pub. L. 107–307, § 2(1), Dec. 2, 2002, 116 Stat. 2445. The date of the enactment of this section, referred to in subsec. (a)(2)(B), is the date of enactment of Pub. L. 106–414, which was approved Nov. 1, 2000. § 30171. Protection of employees providing motor vehicle safety information (a) DISCRIMINATION AGAINST EMPLOYEES OF MANUFACTURERS, PART SUPPLIERS, AND DEALER- SHIPS.—No motor vehicle manufacturer, part supplier, or dealership may discharge an em- ployee or otherwise discriminate against an em- ployee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)— (1) provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the em- ployer or the Secretary of Transportation in- formation relating to any motor vehicle de- fect, noncompliance, or any violation or al- leged violation of any notification or report- ing requirement of this chapter; (2) has filed, caused to be filed, or is about to file (with any knowledge of the employer) or cause to be filed a proceeding relating to any violation or alleged violation of any motor ve- hicle defect, noncompliance, or any violation or alleged violation of any notification or re- porting requirement of this chapter; (3) testified or is about to testify in such a proceeding; (4) assisted or participated or is about to as- sist or participate in such a proceeding; or (5) objected to, or refused to participate in, any activity that the employee reasonably be- lieved to be in violation of any provision of chapter 301 of this title, or any order, rule, regulation, standard, or ban under such provi- sion. (b) COMPLAINT PROCEDURE.— (1) FILING AND NOTIFICATION.—A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection (a) may file (or have any person file on his or her behalf), not later than 180 days after the date on which such vio- lation occurs, a complaint with the Secretary of Labor (hereinafter in this section referred to as the ‘‘Secretary’’) alleging such discharge or discrimination. Upon receipt of such a com- plaint, the Secretary shall notify, in writing, the person named in the complaint of the fil- ing of the complaint, of the allegations con- tained in the complaint, of the substance of evidence supporting the complaint, and of the opportunities that will be afforded to such per- son under paragraph (2). (2) INVESTIGATION; PRELIMINARY ORDER.— (A) IN GENERAL.—Not later than 60 days after the date of receipt of a complaint filed under paragraph (1) and after affording the person named in the complaint an oppor- tunity to submit to the Secretary a written response to the complaint and an oppor- tunity to meet with a representative of the Secretary to present statements from wit- nesses, the Secretary shall conduct an inves- tigation and determine whether there is rea- sonable cause to believe that the complaint has merit and notify, in writing, the com- plainant and the person alleged to have com- mitted a violation of subsection (a) of the Secretary’s findings. If the Secretary con- cludes that there is a reasonable cause to be- lieve that a violation of subsection (a) has occurred, the Secretary shall accompany the Secretary’s findings with a preliminary order providing the relief prescribed by para- graph (3)(B). Not later than 30 days after the date of notification of findings under this paragraph, either the person alleged to have committed the violation or the complainant may file objections to the findings or pre- liminary order, or both, and request a hear- ing on the record. The filing of such objec- tions shall not operate to stay any reinstate- ment remedy contained in the preliminary order. Such hearings shall be conducted ex- peditiously. If a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not sub- ject to judicial review. (B) REQUIREMENTS.— (i) REQUIRED SHOWING BY COMPLAINANT.— The Secretary shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise re- quired under subparagraph (A) unless the complainant makes a prima facie showing that any behavior described in paragraphs (1) through (5) of subsection (a) was a con- tributing factor in the unfavorable per- sonnel action alleged in the complaint. (ii) SHOWING BY EMPLOYER.—Notwith- standing a finding by the Secretary that the complainant has made the showing re- quired under clause (i), no investigation otherwise required under subparagraph (A) shall be conducted if the employer dem- onstrates, by clear and convincing evi- dence, that the employer would have Page 806 TITLE 49—TRANSPORTATION § 30171 taken the same unfavorable personnel ac- tion in the absence of that behavior. (iii) CRITERIA FOR DETERMINATION BY SEC- RETARY.—The Secretary may determine that a violation of subsection (a) has oc- curred only if the complainant dem- onstrates that any behavior described in paragraphs (1) through (5) of subsection (a) was a contributing factor in the unfavor- able personnel action alleged in the com- plaint. (iv) PROHIBITION.—Relief may not be or- dered under subparagraph (A) if the em- ployer demonstrates, by clear and con- vincing evidence, that the employer would have taken the same unfavorable per- sonnel action in the absence of that behav- ior. (3) FINAL ORDER.— (A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREEMENTS.—Not later than 120 days after the date of conclusion of a hearing under paragraph (2), the Secretary shall issue a final order providing the relief prescribed by this paragraph or denying the complaint. At any time before issuance of a final order, a proceeding under this subsection may be ter- minated on the basis of a settlement agree- ment entered into by the Secretary, the complainant, and the person alleged to have committed the violation. (B) REMEDY.—If, in response to a com- plaint filed under paragraph (1), the Sec- retary determines that a violation of sub- section (a) has occurred, the Secretary shall order the person who committed such viola- tion— (i) to take affirmative action to abate the violation; (ii) to reinstate the complainant to his or her former position together with the compensation (including back pay) and re- store the terms, conditions, and privileges associated with his or her employment; and (iii) to provide compensatory damages to the complainant. (C) ATTORNEYS’ FEES.—If such an order is issued under this paragraph, the Secretary, at the request of the complainant, shall as- sess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reason- ably incurred, as determined by the Sec- retary, by the complainant for, or in connec- tion with, bringing the complaint upon which the order was issued. (D) FRIVOLOUS COMPLAINTS.—If the Sec- retary determines that a complaint under paragraph (1) is frivolous or has been brought in bad faith, the Secretary may award to the prevailing employer a reason- able attorney’s fee not exceeding $1,000. (E) DE NOVO REVIEW.—With respect to a complaint under paragraph (1), if the Sec- retary has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee, the employee may bring an origi- nal action at law or equity for de novo re- view in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to the action, be tried by the court with a jury. The action shall be governed by the same legal burdens of proof specified in paragraph (2)(B) for review by the Secretary. (4) REVIEW.— (A) APPEAL TO COURT OF APPEALS.—Any person adversely affected or aggrieved by an order issued under paragraph (3) may obtain review of the order in the United States Court of Appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such violation. The petition for re- view shall be filed not later than 60 days after the date of the issuance of the final order of the Secretary. Review shall conform to chapter 7 of title 5. The commencement of proceedings under this subparagraph shall not, unless ordered by the court, operate as a stay of the order. (B) LIMITATION ON COLLATERAL ATTACK.— An order of the Secretary with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding. (5) ENFORCEMENT OF ORDER BY SECRETARY.— Whenever any person fails to comply with an order issued under paragraph (3), the Sec- retary may file a civil action in the United States district court for the district in which the violation was found to occur to enforce such order. In actions brought under this para- graph, the district courts shall have jurisdic- tion to grant all appropriate relief, including injunctive relief and compensatory damages. (6) ENFORCEMENT OF ORDER BY PARTIES.— (A) COMMENCEMENT OF ACTION.—A person on whose behalf an order was issued under paragraph (3) may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States dis- trict court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. (B) ATTORNEY FEES.—The court, in issuing any final order under this paragraph, may award costs of litigation (including reason- able attorney and expert witness fees) to any party whenever the court determines such award is appropriate. (c) MANDAMUS.—Any nondiscretionary duty imposed under this section shall be enforceable in a mandamus proceeding brought under sec- tion 1361 of title 28. (d) NONAPPLICABILITY TO DELIBERATE VIOLA- TIONS.—Subsection (a) shall not apply with re- spect to an employee of a motor vehicle manu- facturer, part supplier, or dealership who, acting without direction from such motor vehicle man- ufacturer, part supplier, or dealership (or such Page 807 TITLE 49—TRANSPORTATION § 30172 person’s agent), deliberately causes a violation of any requirement relating to motor vehicle safety under this chapter. (Added Pub. L. 112–141, div. C, title I, § 31307(a), July 6, 2012, 126 Stat. 765.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways. § 30172. Whistleblower incentives and protections (a) DEFINITIONS.—In this section: (1) COVERED ACTION.—The term ‘‘covered ac- tion’’ means any administrative or judicial ac- tion, including any related administrative or judicial action, brought by the Secretary or the Attorney General under this chapter that in the aggregate results in monetary sanctions exceeding $1,000,000. (2) MONETARY SANCTIONS.—The term ‘‘mone- tary sanctions’’ means monies, including pen- alties and interest, ordered or agreed to be paid. (3) ORIGINAL INFORMATION.—The term ‘‘origi- nal information’’ means information that— (A) is derived from the independent knowl- edge or analysis of an individual; (B) is not known to the Secretary from any other source, unless the individual is the original source of the information; and (C) is not exclusively derived from an alle- gation made in a judicial or an administra- tive action, in a governmental report, a hearing, an audit, or an investigation, or from the news media, unless the individual is a source of the information. (4) PART SUPPLIER.—The term ‘‘part sup- plier’’ means a manufacturer of motor vehicle equipment. (5) SUCCESSFUL RESOLUTION.—The term ‘‘suc- cessful resolution’’, with respect to a covered action, includes any settlement or adjudica- tion of the covered action. (6) WHISTLEBLOWER.—The term ‘‘whistle- blower’’ means any employee or contractor of a motor vehicle manufacturer, part supplier, or dealership who voluntarily provides to the Secretary original information relating to any motor vehicle defect, noncompliance, or any violation or alleged violation of any notifica- tion or reporting requirement of this chapter, which is likely to cause unreasonable risk of death or serious physical injury. (b) AWARDS.— (1) IN GENERAL.—If the original information that a whistleblower provided to the Secretary leads to the successful resolution of a covered action, the Secretary, subject to subsection (c), may pay an award or awards to one or more whistleblowers in an aggregate amount of— (A) not less than 10 percent, in total, of collected monetary sanctions; and (B) not more than 30 percent, in total, of collected monetary sanctions. (2) PAYMENT OF AWARDS.—Any amount pay- able under paragraph (1) shall be paid from the monetary sanctions collected, and any mone- tary sanctions so collected shall be available for such payment. (c) DETERMINATION OF AWARDS; DENIAL OF AWARDS.— (1) DETERMINATION OF AWARDS.— (A) DISCRETION.—The determination of whether, to whom, or in what amount to make an award shall be in the discretion of the Secretary subject to the provisions in subsection (b)(1). (B) CRITERIA.—In determining an award made under subsection (b), the Secretary shall take into consideration— (i) if appropriate, whether a whistle- blower reported or attempted to report the information internally to an applicable motor vehicle manufacturer, part supplier, or dealership; (ii) the significance of the original infor- mation provided by the whistleblower to the successful resolution of the covered ac- tion; (iii) the degree of assistance provided by the whistleblower and any legal represent- ative of the whistleblower in the covered action; and (iv) such additional factors as the Sec- retary considers relevant. (2) DENIAL OF AWARDS.—No award under sub- section (b) shall be made— (A) to any whistleblower who is convicted of a criminal violation related to the cov- ered action for which the whistleblower oth- erwise could receive an award under this sec- tion; (B) to any whistleblower who, acting with- out direction from an applicable motor vehi- cle manufacturer, part supplier, or dealer- ship, or agent thereof, deliberately causes or substantially contributes to the alleged vio- lation of a requirement of this chapter; (C) to any whistleblower who submits in- formation to the Secretary that is based on the facts underlying the covered action sub- mitted previously by another whistleblower; (D) to any whistleblower who fails to pro- vide the original information to the Sec- retary in such form as the Secretary may re- quire by regulation; or (E) if the applicable motor vehicle manu- facturer, parts supplier, or dealership has an internal reporting mechanism in place to protect employees from retaliation, to any whistleblower who fails to report or attempt to report the information internally through such mechanism, unless— (i) the whistleblower reasonably believed that such an internal report would have resulted in retaliation, notwithstanding section 30171(a); (ii) the whistleblower reasonably be- lieved that the information— (I) was already internally reported; (II) was already subject to or part of an internal inquiry or investigation; or (III) was otherwise already known to the motor vehicle manufacturer, part supplier, or dealership; or (iii) the Secretary has good cause to waive this requirement.