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June 29, 2018
Redress for nuclear industry whistleblowers

In a recently published fact sheet, OSHA reminds contractors, subcontractors, and licensees of the Nuclear Regulatory Commission (NRC) and contractors and subcontractors of the Department of Energy (DOE) that their employees are protected from retaliation for reporting potential violations of the Energy Reorganization Act (ERA) or the Atomic Energy Act (AEA) to their employers or to the government.

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According to OSHA, retaliation comprises a wide range of actions, including firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to hire or rehire, intimidation, reassignment affecting promotion prospects, reducing pay or hours, and making threats.

Affected employers

Under the ERA, employees of the following employers are protected from retaliation for engaging in protected activity:

  • NRC licensees and applicants for licenses, including the Tennessee Valley Authority;
  • NRC contractors and subcontractors;
  • Contractors and subcontractors of NRC licensees and applicants for licenses;
  • Agreement state licensees and applicants for licenses from agreement states, including their contractors and subcontractors; and
  • Certain DOE contractors and subcontractors.

Protected actions

Employees of the above entities may not be discharged or otherwise retaliated against because the employee:

  • Notified the employer of an alleged violation of the ERA or the AEA;
  • Refused to engage in any practice that is unlawful under the ERA or the AEA if the employee has identified the alleged illegality to the employer;
  • Testified before Congress or at any federal or state proceeding regarding any provision (or proposed provision) of the ERA or the AEA;
  • Commenced a proceeding, caused a proceeding to be commenced, or is about to commence or cause to be commenced a proceeding under the ERA or the AEA;
  • Testified, assisted, or participated in or is about to testify, assist, or participate in a proceeding under the ERA or AEA; or
  • Assisted, participated in, or is about to assist or participate in any other action to carry out the purposes of the ERA or the AEA.

Filing requirements

The major burden for an employee seeking redress for alleged illegal retaliation is that the complaint must be filed with OSHA within 180 days after the employee was notified of the action taken against her or him. Otherwise the process is relatively simple. The employee or his or her representative can file an ERA complaint with OSHA by visiting or calling his or her local OSHA office, sending a written complaint to the closest OSHA office, or filing a complaint online. No particular form is required, and complaints may be submitted in any language. Also:

  • Written complaints may be filed by fax, electronic communication, hand delivery during business hours, U.S. mail (confirmation services recommended), or other third-party commercial carrier.
  • The date of the postmark, fax, electronic communication, telephone call, hand delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office is considered the date filed.

What OSHA will do

If the complaint is filed on time, OSHA will investigate it according to procedures at 29 CFR Part 24.

“If the evidence supports an employee’s complaint of retaliation, OSHA will issue an order requiring the employer to, as appropriate, put the employee back to work, pay lost wages, restore benefits, and provide other possible relief,” states OSHA. “The exact requirements will depend on the facts of the case. If the evidence does not support the employee’s complaint, OSHA will dismiss the complaint.”

After OSHA issues a decision, the employer and/or the employee may request a full hearing before an administrative law judge of the Department of Labor (DOL). The judge’s decision may be appealed to DOL’s Administrative Review Board. The employee may also file a complaint in federal court if the Department does not issue a final decision within 365 days.

DOE’s program

Also, the DOE has established regulations at 10 CFR Part 708 to protect employees of DOE contractors against reprisal by the employer for specific employee actions that largely mirror OSHA’s protected actions listed above.

Procedures for filing a complaint under Part 708 differ from OSHA’s procedures and are generally considered more difficult to navigate. For example, the complaint must be filed within 90 days of the alleged retaliation; the complaint must be filed in writing; and the complaint may not be filed if it is based on the same facts for which the employee already requested a remedy from OSHA, under Federal Acquisition whistleblower protection regulations for contract employees, or from a state government.

In July 2016, the Government Accountability Office reported on DOE’s Part 708 program and recommended improvements.

OSHA’s fact sheet is available here.

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