Up & Atom


On September 26, Senators Ron Wyden (D-OR), Edward Markey (D-MA), and Claire McCaskill (D-MO) introduced bill S.3394 to amend the Energy Reorganization Act of 1974 (ERA) to modify provisions regarding the protection of employees of the US Department of Energy (DOE) and Nuclear Regulatory Commission (NRC).

This legislation, which impacts all employers covered by the ERA (not just the DOE and NRC as the title suggests), was at least partially prompted by the July 2016 Government Accountability Office (GAO) Report that—in no uncertain terms—criticized the DOE’s weak whistleblower protections. In that report, GAO noted that DOE almost never finds contractors accountable for unlawful retaliation against whistleblowers.

On the heels of that report, DOE took its first step in addressing GAO’s concerns by proposing stronger whistleblower protections in its regulations. The senators sponsoring this bill, however, do not seem convinced that DOE’s proposed modifications will change the status quo. Although intended to address DOE’s perceived shortcomings in protecting whistleblowers, bill S.3394 would do much more than bolster the protection of workers in the DOE complex.

The key ERA changes in bill S.3394 are described below:

  1. Expanded Protected Activities. The bill makes disclosures about waste, fraud, and abuse legally protected. The ERA currently protects disclosures regarding nuclear safety.
  2. One Year Statute of Limitations. The bill doubles the amount of time that employees have to file a whistleblower complaint—from six months to one year.
  3. Fast Track to Hearing. The bill allows complainants to request a hearing before an administrative law judge if OSHA does not complete its investigation in 180 days.
  4. Statutory Right to Jury Trial. The bill entitles employees to a jury trial if they remove their claim from the DOL and file it in federal district court.
  5. Contractors Pay Their Own Legal Costs. The bill would hold DOE contractors responsible for their own legal costs in defending against ERA claims.
  6. Contractors Subject to Punitive Damages. The bill would subject employers to punitive damages if they are found to have violated the ERA.

The proposed revisions to the ERA are pro-employee and would expose employers to more claims and increased liability. Neither the Senate nor House has voted on S.3394, so there is no indication at this time that these changes will become law.

Morgan Lewis will continue to track this legislation and update our clients as further information becomes available.