House Speaker Nancy Pelosi has announced plans to bring the Oil Spill Response Bill to the House floor for passage. The Washington Independent is reporting that the bill will include the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which, “provides whistleblower and anti-retaliation protections to workers on the Outer Continental Shelf” and “protects worker safety by improving federal agency coordination.” The text of this bill is available here. From my read, it includes most of what we call the "gold standard" protections for whistleblowers. It will protect oil and gas workers when the raise concerns about compliance with the Outer Continental Shelf Lands Act, or any concerns about illness, injury or unsafe conditions. It would protect reports made in the course of performing duties, and protect refusals to violate the law. It would provide a right of action through the Department of Labor, a 180-day statute of limitations, a contributing factor standard for proving causation, and a "clear and convincing evidence" burden for employers who claim they would have fired the whistleblower even if protected activity was not considered. If the Department of Labor has not issued a final order within 300 days, whistleblowers could go to U.S. District Court and ask for a trial by jury. One provision that is missing (but was added to SOX in the Dodd-Frank Act) is a provision specifically barring enforcement of pre-dispute arbitration agreements. It does provide that, "The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment," but this might not be enough to keep courts from enforcing arbitration agreements, as they are keen to do. It would be a good day for oil and gas workers, and for everyone who cares about the environment we leave for future generations, if this bill would pass. It would be an even better day if the House adds the Dodd-Frank anti-arbitration language.
