42 U.S.C. § 7622 — Employee protection

Page 7405 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7622 1 So in original. Probably should be ‘‘subsection,’’ § 7621. Employment effects (a) Continuous evaluation of potential loss or shifts of employment The Administrator shall conduct continuing evaluations of potential loss or shifts of employ- ment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment al- legedly resulting from such administration or enforcement. (b) Request for investigation; hearings; record; report Any employee, or any representative of such employee, who is discharged or laid off, threat- ened with discharge or layoff, or whose employ- ment is otherwise adversely affected or threat- ened to be adversely affected because of the al- leged results of any requirement imposed or pro- posed to be imposed under this chapter, includ- ing any requirement applicable to Federal facili- ties and any requirement imposed by a State or political subdivision thereof, may request the Administrator to conduct a full investigation of the matter. Any such request shall be reduced to writing, shall set forth with reasonable particu- larity the grounds for the request, and shall be signed by the employee, or representative of such employee, making the request. The Admin- istrator shall thereupon investigate the matter and, at the request of any party, shall hold pub- lic hearings on not less than five days’ notice. At such hearings, the Administrator shall re- quire the parties, including the employer in- volved, to present information relating to the actual or potential effect of such requirements on employment and the detailed reasons or jus- tification therefor. If the Administrator deter- mines that there are no reasonable grounds for conducting a public hearing he shall notify (in writing) the party requesting such hearing of such a determination and the reasons therefor. If the Administrator does convene such a hear- ing, the hearing shall be on the record. Upon re- ceiving the report of such investigation, the Ad- ministrator shall make findings of fact as to the effect of such requirements on employment and on the alleged actual or potential discharge, lay- off, or other adverse effect on employment, and shall make such recommendations as he deems appropriate. Such report, findings, and rec- ommendations shall be available to the public. (c) Subpenas; confidential information; wit- nesses; penalty In connection with any investigation or public hearing conducted under subsection (b) of this section or as authorized in section 7419 of this title (relating to primary nonferrous smelter or- ders), the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents, and he may administer oaths. Ex- cept for emission data, upon a showing satisfac- tory to the Administrator by such owner or op- erator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes of such owner, or operator, the Admin- istrator shall consider such record, report, or in- formation or particular portion thereof con- fidential in accordance with the purposes of sec- tion 1905 of title 18, except that such paper, book, document, or information may be dis- closed to other officers, employees, or author- ized representatives of the United States con- cerned with carrying out this chapter, or when relevant in any proceeding under this chapter. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In cases of contu- macy or refusal to obey a subpena served upon any person under this subparagraph,1 the dis- trict court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requir- ing such person to appear and give testimony before the Administrator, to appear and produce papers, books, and documents before the Admin- istrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (d) Limitations on construction of section Nothing in this section shall be construed to require or authorize the Administrator, the States, or political subdivisions thereof, to mod- ify or withdraw any requirement imposed or proposed to be imposed under this chapter. (July 14, 1955, ch. 360, title III, § 321, as added Pub. L. 95–95, title III, § 311, Aug. 7, 1977, 91 Stat. 782.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Aug. 7, 1977, except as otherwise ex- pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. STUDY OF POTENTIAL DISLOCATION OF EMPLOYEES Pub. L. 95–95, title IV, § 403(e), Aug. 7, 1977, 91 Stat. 793, provided that the Secretary of Labor, in consulta- tion with the Administrator, conduct a study of poten- tial dislocation of employees due to implementation of laws administered by the Administrator and that the Secretary submit to Congress the results of the study not more than one year after Aug. 7, 1977. § 7622. Employee protection (a) Discharge or discrimination prohibited No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, condi- tions, or privileges of employment because the employee (or any person acting pursuant to a re- quest of the employee)— (1) commenced, caused to be commenced, or is about to commence or cause to be com- menced a proceeding under this chapter or a proceeding for the administration or enforce- ment of any requirement imposed under this chapter or under any applicable implementa- tion plan, (2) testified or is about to testify in any such proceeding, or Page 7406 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7623 1 So in original. (3) assisted or participated or is about to as- sist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter. (b) Complaint charging unlawful discharge or discrimination; investigation; order (1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within thirty days after such violation occurs, file (or have any person file on his be- half) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the ‘‘Secretary’’) alleging such discharge or dis- crimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint. (2)(A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall conduct an in- vestigation of the violation alleged in the com- plaint. Within thirty days of the receipt of such complaint, the Secretary shall complete such in- vestigation and shall notify in writing the com- plainant (and any person acting in his behalf) and the person alleged to have committed such violation of the results of the investigation con- ducted pursuant to this subparagraph. Within ninety days of the receipt of such complaint the Secretary shall, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Sec- retary and the person alleged to have committed such violation, issue an order either providing the relief prescribed by subparagraph (B) or de- nying the complaint. An order of the Secretary shall be made on the record after notice and op- portunity for public hearing. The Secretary may not enter into a settlement terminating a pro- ceeding on a complaint without the participa- tion and consent of the complainant. (B) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) has occurred, the Sec- retary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the com- plainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to pro- vide compensatory damages to the complainant. If an order is issued under this paragraph, the Secretary, at the request of the complainant, shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including at- torneys’ and expert witness fees) reasonably in- curred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. (c) Review (1) Any person adversely affected or aggrieved by an order issued under subsection (b) may ob- tain review of the order in the United States court of appeals for the circuit in which the vio- lation, with respect to which the order was issued, allegedly occurred. The petition for re- view must be filed within sixty days from the issuance of the Secretary’s order. Review shall conform to chapter 7 of title 5. The commence- ment of proceedings under this subparagraph 1 shall not, unless ordered by the court, operate as a stay of the Secretary’s order. (2) An order of the Secretary with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial re- view in any criminal or other civil proceeding. (d) Enforcement of order by Secretary Whenever a person has failed to comply with an order issued under subsection (b)(2), 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 subsection, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief, compensatory, and exemplary damages. (e) Enforcement of order by person on whose be- half order was issued (1) Any person on whose behalf an order was issued under paragraph (2) of subsection (b) may commence a civil action against the person to whom such order was issued to require compli- ance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. (2) The court, in issuing any final order under this subsection, may award costs of litigation (including reasonable attorney and expert wit- ness fees) to any party whenever the court de- termines such award is appropriate. (f) Mandamus Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus pro- ceeding brought under section 1361 of title 28. (g) Deliberate violation by employee Subsection (a) shall not apply with respect to any employee who, acting without direction from his employer (or the employer’s agent), de- liberately causes a violation of any requirement of this chapter. (July 14, 1955, ch. 360, title III, § 322, as added Pub. L. 95–95, title III, § 312, Aug. 7, 1977, 91 Stat. 783.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Aug. 7, 1977, except as otherwise ex- pressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. § 7623. Repealed. Pub. L. 96–300, § 1(c), July 2, 1980, 94 Stat. 831 Section, act July 14, 1955, ch. 360, title III, § 323, as added Aug. 7, 1977, Pub. L. 95–95, title III, § 313, 91 Stat. 785; amended Nov. 16, 1977, Pub. L. 95–190, § 14(a)(81), 91 Stat. 1404; S. Res. 4, Feb. 4, 1977; H. Res. 549, Mar. 25, 1980; July 2, 1980, Pub. L. 96–300, § 1(a), 94 Stat. 831, es- tablished a National Commission on Air Quality, pre- scribed numerous subjects for study and report to Con- gress, enumerated specific questions for study and in-