The US Department of Energy (DOE) recently published proposed changes to its Contractor Employee Protection Program in the Federal Register. DOE’s Contractor Employee Protection Program appears in 10 C.F.R. Part 708 (Part 708) and extends employee protections to employees of DOE contractors and subcontractors modeled after the protections for federal employees that appear in the Whistleblower Protection Act (5 U.S.C. § 1201 et seq.).
DOE’s Office of Administrative Hearings and Appeals (OHA), which administers DOE’s Contractor Employee Protection Program, claims that the proposed changes will “modernize” the program as it appears in Part 708. The key changes to Part 708 proposed by OHA are summarized below. Comments on the proposed changes and answers to two specific questions posed by the OHA are due by May 30, 2019.
- Proposed Definition of “Alternative Dispute Resolution” (ADR). OHA proposes adding a definition of ADR to 10 C.F.R. § 708.2, the definition section of Part 708. The proposed definition defines ADR as “any technique for resolving disputes” including, but not limited to, “mediation, facilitation, shuttle diplomacy, partnering, and dispute systems design.” According to OHA, the purpose of this change is to highlight the flexibility and scope of DOE’s conflict resolution resources.
- Proposed Change to Encourage ADR. OHA proposes changing 10 C.F.R. § 708.10 to encourage ADR “at any time prior to the issuance of an initial agency decision.” OHA believes this change (which will also consolidate all references to ADR found elsewhere in Part 708) reflects DOE’s policy encouraging the use of ADR. However, the proposed change does not provide for a stay of the investigative process for the parties to engage in ADR. It is unclear whether this change will limit the ability of the parties to seek a continuance of a hearing to engage in ADR.
- Proposed Change in Withdrawal of Complaints by Complainants. OHA proposes changing 10 C.F.R. § 708.9 to specify that complainants may withdraw their complaints at any time. OHA explained that this change codifies OHA’s longstanding practice. But this practice will differ from the one at other agencies that handle whistleblower complaints. For example, the Occupational Safety and Health Administration (OSHA) generally does not allow a complaint to be withdrawn without its approval. (See 10 C.F.R. § 24.111(a)).
- Proposed Change to Require the Exchange of an Employer’s Response to a Complaint. OHA proposes changing 10 C.F.R. § 708.17 to require that an employer’s response to a complaint be shared with the complainant and that the complainant be allowed to submit additional comments. Under the proposed change, an employer must respond within 15 days of receiving a copy of the complaint. The Head of Field Element or EC Director will then provide the complainant with a copy of the employer’s response, and the complainant will have 10 days to respond or submit any additional comments. The Head of Field Element or EC Director will then provide any additional comments from the complainant to the employer. OHA explained that this change would codify the decision In the Matter of Charles K. MacLeod, Case No. WBU-16-0005 (2016) where OHA held that “fairness and equity” dictate that when a complainant receives a copy of the employer’s response to the complaint, the complainant should be given a “reasonable opportunity to respond to it.”
- Proposed Extension of the Deadline to Issue a Decision to Dismiss a Complaint. OHA proposes changing 10 C.F.R. § 708.18 to extend the timeframe for issuing a decision to dismiss a complaint from 15 days to 20 days. OHA explains that this change is necessary to accommodate the submission of the employer’s response and the complainant’s additional comments in accord with the proposed changes to Section 708.17.
- Proposed Changes to Clarify Appellate Standards of Review. OHA proposes changing 10 C.F.R. §§ 708.19 (appealing the dismissal of a complaint by the Head of Field Element or ED Director for lack of jurisdiction or other good cause ) and 708.33 (procedures for appeals) to clarify the appellate standard of review in Part 708 proceedings. Under these changes, appeals of the dismissal of a complaint under Section 708.19 or appeals of an initial agency decision under Section 708.33, the OHA Director will review findings of fact for clear error and review conclusions of law de novo. OHA believes that these changes will increase consistency and fairness in the appeal process.
- Proposed Change to Eliminate the Option for a Hearing Without an Investigation. OHA proposes changing 10 C.F.R. § 708.21 to eliminate the option for complainants to elect to have a hearing on their complaint without an investigation. According to OHA, its observation is that few complainants select this option, and when they do, the hearings are typically “wide-ranging, unfocused, and inefficient.” Moreover, OHA believes that the complainant suffers a significant disadvantage, and the task of rendering a decision becomes more complicated without the benefit of an investigation.
- Proposed Change to Posting Requirements. OHA also proposes to change 10 C.F.R. § 708.40 to require employers to post the telephone number and website or email address of the DOE office where employees may file complaints. This information will be in addition to the existing requirement that employers post the name and address of the DOE office. This change is to encourage the use of paperless communications.
In general, OHA’s proposed revisions are straightforward and do not significantly change Part 708. However, the proposed elimination of the option for complainants to elect to have a hearing without an investigation raises three issues. First, complainants do elect to have a hearing without an investigation to resolve their claims more quickly and will be prevented from doing so by this proposed change. Second, the investigative process is arguably unnecessary and/or redundant in light of the parties’ duty to engage in discovery. Thus, contrary to OHA’s reasoning for this change, there may be efficiencies with going to hearing.
Third, it is also unclear what weight the investigative findings carry and how they will impact the conduct of the hearing. Under the current 10 C.F.R. § 708.30(c) (which will become Section 708.31(b) if the proposed changes are adopted), the administrative judge conducting the hearing may use, but is not bound by, the findings in the investigative report. This contrasts with the US Department of Labor’s process where the hearing is clearly de novo.
Despite these issues created by the proposed change to 10 C.F.R. § 708.21, OHA is not specifically seeking comments on this proposed change.
OHA is requesting comment on two elements of the proposed rule (see Section III of the Federal Register Notice):
- The procedure by which complaints may be dismissed during investigations; and
- Whether the OHA should be required by the regulation to appoint a new investigator in the event that a case is not dismissed after being referred for dismissal during an investigation.
We will continue to track this rulemaking. You can contact us for assistance if you wish to submit comments.