33 U.S.C. § 1367 — Employee protection

submitted 78 years ago by Pub. L. 92-500 to r/title-33-NAVIGATION-AND-NAVIGABLE-WATERS · 819 words · no verdicts yet

in plain englishAI-generated · not legal advice

This section protects employees and their representatives from retaliation for using or participating in proceedings under this chapter. It also requires investigations of employment losses allegedly caused by pollution limits or orders.

(a) No person may fire, discriminate against, or cause the firing or discrimination against an employee or authorized employee representative because that person filed, started, caused the filing or start of, testified in, or is about to testify in a proceeding under this chapter. (b) An employee or representative who believes a person violated (a) may, within 30 days, ask the Secretary of Labor to review the firing or discrimination and must send the alleged violator a copy. The Secretary must investigate as appropriate. At any party’s request, the investigation must provide a public hearing opportunity. The parties must receive written notice of its time and place at least five days beforehand. The hearing must be recorded and follow section 554 of title 5. After the investigation, the Secretary must make factual findings. If a violation occurred, the Secretary must issue a decision and order requiring appropriate affirmative action, including rehiring or reinstatement with compensation. If not, the Secretary must deny the application. The Secretary’s order is judicially reviewable like Administrator orders under this chapter. (c) When an order abates a violation, the applicant may request assessment against the violator of all reasonably incurred proceeding costs and expenses, including attorney fees, as determined by the Secretary. (d) This protection does not apply to an employee who, without direction from the employer or agent, deliberately violates an effluent or other limit under sections 1311 or 1312, a performance standard under section 1316, an effluent standard, prohibition, or pretreatment standard under section 1317, or another prohibition or limit under this chapter. (e) The Administrator must continually evaluate possible employment losses or shifts caused by an effluent limit or order, including investigating threatened plant closings or employment reductions allegedly caused by one. An employee discharged, laid off, threatened with either, or otherwise discriminated against because of alleged results of such a limit or order, or the employee’s representative, may ask for a full investigation. The Administrator must investigate and, at a party’s request, hold public hearings with at least five days’ notice. At the hearing, the parties, including the employer, must provide information about the actual or possible employment effects and the detailed reasons for any discharge, layoff, or discrimination. The recorded hearing is subject to section 554 of title 5. After the investigation, the Administrator must make factual findings about employment effects and the alleged action and recommendations considered appropriate. The report, findings, and recommendations must be public. This does not require or authorize changing or withdrawing an effluent limit or order.

the actual law source: uscode.house.gov ↗public domain

(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.

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.

Source credit: (June 30, 1948, ch. 758, title V, § 507, as added Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 890.)

history & why it existsrecord from the source credit

1948Enacted · Pub. L. 92-500 · 86 Stat. 890

A history note hasn’t been published yet. The record shows enactment by Pub. L. 92-500 on 1948-06-30.

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