The NRC recently published an updated brochure on its “Pre-Investigation Alternative Dispute Resolution Program,” which affords licensees the opportunity to engage in Alternative Dispute Resolution (ADR) to resolve an individual’s allegation of discrimination for raising nuclear safety concerns prior to the start of an NRC Office of Investigations (OI) investigation. There are two types of Pre-Investigation ADR: (1) NRC-sponsored “Early ADR”; and (2) licensee-sponsored ADR. The brochure does not reveal any changes to the NRC’s Pre-Investigation ADR Program, which does not encompass technical safety concerns. Nonetheless, the program offers licensees and their contractors an opportunity to avoid an investigation into a discrimination allegation and other possible benefits, so it worth reviewing how the program works.
If an individual alleges discrimination for raising a nuclear safety concern to the NRC, the NRC will offer that individual the chance to resolve the issue through ADR instead of an NRC investigation. If the individual agrees, the NRC contacts the licensee and asks if the licensee would like to engage in mediation with the individual through NRC-sponsored Early ADR. NRC OI will refrain from beginning an investigation into the allegation of discrimination while the parties are pursuing mediation. If the mediation is successful, the parties must submit their signed settlement agreement to the NRC for review to receive credit under the program. If the NRC concludes that the settlement agreement does not prohibit or discourage the employee from engaging in a protected activity, the NRC will notify the parties of its conclusion and will not investigate the allegation of discrimination or take enforcement action. If the mediation is unsuccessful, NRC OI will move forward with an investigation of the allegation.
Likewise, the parties can pursue settlement outside of the NRC’s Early ADR program, through “licensee-sponsored ADR.” If the parties are able to settle an allegation of discrimination at their own expense and provide the NRC with a copy of the settlement agreement before NRC OI has initiated an investigation, the NRC will not investigate the allegation of discrimination or take enforcement action (provided there is no prohibition or discouragement in the settlement agreement against engaging in protected activity). In some cases, licensees and their contractors may wish to participate in licensee-sponsored ADR even if the individual has not made an allegation of discrimination with the NRC (for example, if the individual makes an internal discrimination complaint and/or files a discrimination complaint with the US Department of Labor under the Energy Reorganization Act of 1974.)
In either situation, if the ADR culminates in a settlement agreement, the agreement can be used to avoid an investigation into a subsequent allegation of discrimination submitted to the NRC, provided that the allegation involves the same set of facts. In some circumstances, even if the NRC OI initiates an investigation, but prior to the NRC making a substantial effort on it, the NRC may exercise its discretion, consistent with the Enforcement Manual, not to take enforcement action in light of a settlement agreement. Given these potential benefits, licensees and their contractors should consider informing the NRC of any settlement agreements they enter resolving allegations of discrimination for raising safety concerns, even when they are unaware of any NRC involvement.
We counsel power and materials licensees, and their contractors, about OI investigations and will continue to closely follow developments in this area.