The US Department of Energy (DOE) published a final rule in the August 2 Federal Register that revises DOE’s Contractor Employee Protection Program. The program appears in 10 CFR 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 USC §§ 1201 et seq. DOE’s Office of Administrative Appeals (OHA) administers the Part 708 program. We previously reported on the proposed rule, and the final rule largely adopts the changes laid out in the proposed rule. Key changes include the following:
- New Section on Alternative Dispute Resolution (ADR). The final rule consolidates references to ADR into a single new section (Section 708.10) in Subpart A to signal its general applicability to all disputes. The new Section 708.10 allows for ADR at any time during the Part 708 process but advises that the Part 708 investigative process will not be stayed for ADR. It is unclear whether administrative judges will grant parties continuances of hearings to allow them to engage in ADR under Section 708.10.
- Withdrawal of Complaints by Complainants. The final rule codifies OHA’s longstanding practice of allowing a complainant to withdraw a complaint at any time in the new Section 708.9. As we previously discussed, this practice differs from other agencies that oversee other whistleblower protection provisions.
- Extension of Time for Employer to Respond to a Complaint and Opportunity for Employee Response. The final rule extends the time for an employer to respond to a complaint to 15 days from the date the employer receives a copy of the complaint. (Previously, the employer had 10 days to respond). The employer’s response must be provided to the employee, and the employee has 10 days from the receipt of the employer’s response to file any additional comments, which must be shared with the employer, under the new Section 708.17(a).
- Extension of Time to Issue a Decision to Dismiss a Complaint. Consistent with the additional time needed to allow employees to submit additional information under Section 708.17(a), the final rule extends the time for a decision to dismiss a complaint for lack of jurisdiction or other good cause from 15 days to 20 days in the new Section 708.18. And a decision to dismiss a complaint cannot be issued before the employee submits additional information or the employee’s time to submit this information has elapsed, whichever is soonest.
- Elimination of the Option to Elect a Hearing Without an Investigation. The final rule eliminates the option for complainants to elect a hearing without an investigation in the new Section 708.21. As we previously discussed, the benefits of a prehearing investigation are unclear given the parties’ opportunity to engage in discovery before a hearing. In addition, because Section 708.31(b) states that the administrative judge conducting the hearing may use, but is not bound by, the findings of the investigative report, it is unclear what weight the investigation will carry at the hearing.
- Appellate Standard of Review. The final rule codifies the appellate standard of review used by the OHA director when reviewing dismissals of complaints (Section 708.19) and initial agency decisions (Section 708.33). The OHA director will review findings of fact for clear error and review conclusions of law . The final rule also eliminates the ability of the OHA director to start an investigation and consider new facts and evidence in an appeal of an initial agency decision under Section 708.33, as this conflicts with the appellate standard of review and subverts the deference owed to the administrative judge’s fact finding.
Changes to Part 708 will take effect on October 1, 2019, and will apply to cases filed on or after that date.