§ 1367. — Employee protection.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC1367]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER V--GENERAL PROVISIONS
Sec. 1367. Employee protection
(a) Discrimination against persons filing, instituting, or testifying in
proceedings under this chapter prohibited
No person shall fire, or in any other way discriminate against, or
cause to be fired or discriminated against, any employee or any
authorized representative of employees by reason of the fact that such
employee or representative has filed, instituted, or caused to be filed
or instituted any proceeding under this chapter, or has testified or is
about to testify in any proceeding resulting from the administration or
enforcement of the provisions of this chapter.
(b) Application for review; investigation; hearing; review
Any employee or a representative of employees who believes that he
has been fired or otherwise discriminated against by any person in
violation of subsection (a) of this section may, within thirty days
after such alleged violation occurs, apply to the Secretary of Labor for
a review of such firing or alleged discrimination. A copy of the
application shall be sent to such person who shall be the respondent.
Upon receipt of such application, the Secretary of Labor shall cause
such investigation to be made as he deems appropriate. Such
investigation shall provide an opportunity for a public hearing at the
request of any party to such review to enable the parties to present
information relating to such alleged violation. The parties shall be
given written notice of the time and place of the hearing at least five
days prior to the hearing. Any such hearing shall be of record and shall
be subject to section 554 of title 5. Upon receiving the report of such
investigation, the Secretary of Labor shall make findings of fact. If he
finds that such violation did occur, he shall issue a decision,
incorporating an order therein and his findings, requiring the party
committing such violation to take such affirmative action to abate the
violation as the Secretary of Labor deems appropriate, including, but
not limited to, the rehiring or reinstatement of the employee or
representative of employees to his former position with compensation. If
he finds that there was no such violation, he shall issue an order
denying the application. Such order issued by the Secretary of Labor
under this subparagraph shall be subject to judicial review in the same
manner as orders and decisions of the Administrator are subject to
judicial review under this chapter.
(c) Costs and expenses
Whenever an order is issued under this section to abate such
violation, at the request of the applicant, a sum equal to the aggregate
amount of all costs and expenses (including the attorney's fees), as
determined by the Secretary of Labor, to have been reasonably incurred
by the applicant for, or in connection with, the institution and
prosecution of such proceedings, shall be assessed against the person
committing such violation.
(d) Deliberate violations by employee acting without direction from his
employer or his agent
This section shall have no application to any employee who, acting
without direction from his employer (or his agent) deliberately violates
any prohibition of effluent limitation or other limitation under section
1311 or 1312 of this title, standards of performance under section 1316
of this title, effluent standard, prohibition or pretreatment standard
under section 1317 of this title, or any other prohibition or limitation
established under this chapter.
(e) Investigations of employment reductions
The Administrator shall conduct continuing evaluations of potential
loss or shifts of employment which may result from the issuance of any
effluent limitation or order under this chapter, including, where
appropriate, investigating threatened plant closures or reductions in
employment allegedly resulting from such limitation or order. Any
employee who is discharged or laid-off, threatened with discharge or
lay-off, or otherwise discriminated against by any person because of the
alleged results of any effluent limitation or order issued under this
chapter, or any representative of such employee, may request the
Administrator to conduct a full investigation of the matter. The
Administrator shall thereupon investigate the matter and, at the request
of any party, shall hold public hearings on not less than five days
notice, and shall at such hearings require the parties, including the
employer involved, to present information relating to the actual or
potential effect of such limitation or order on employment and on any
alleged discharge, lay-off, or other discrimination and the detailed
reasons or justification therefor. Any such hearing shall be of record
and shall be subject to section 554 of title 5. Upon receiving the
report of such investigation, the Administrator shall make findings of
fact as to the effect of such effluent limitation or order on employment
and on the alleged discharge, lay-off, or discrimination and shall make
such recommendations as he deems appropriate. Such report, findings, and
recommendations shall be available to the public. Nothing in this
subsection shall be construed to require or authorize the Administrator
to modify or withdraw any effluent limitation or order issued under this
chapter.
(June 30, 1948, ch. 758, title V, Sec. 507, as added Pub. L. 92-500,
Sec. 2, Oct. 18, 1972, 86 Stat. 890.)
Section Referred to in Other Sections
This section is referred to in section 1369 of this title.
