The US Court of Appeals for the Sixth Circuit’s recent favorable decision in Lemon v. Norfolk Southern Railway Corporation, announced its rejection of the chain-of-events theory of causation in whistleblower cases. In doing so, the Sixth Circuit joins the DOL’s Administrative Review Board (ARB) in rejecting this theory of causation. These decisions, while announced in cases brought under the Federal Rail Safety Act (FRSA), will also apply to cases under Section 211 of the Energy Reorganization Act of 1974 (ERA) because it contains the same “contributing factor” causation standard as the FRSA.

For background, in whistleblower cases under statutes containing the “contributing factor” standard, including the ERA, complainants must show, among other things, that a protected activity somehow contributed to an adverse employment action taken against them. But sometimes an alleged protected activity (e.g., filing an accident report) leads to an internal inquiry into the accident or related events that uncovers a performance deficiency or even wrongdoing on the part of the complainant that results in an adverse employment action against the complainant (e.g., a written warning, suspension without pay, or termination). The question then becomes whether the protected activity or the subsequent discovery of wrongdoing was the “contributing factor” in the adverse employment action taken.

The US Department of Labor (DOL) Administrative Review Board (ARB) recently issued a decision in the case of Evans v. US Environmental Protection Agency, ARB Case No. 2017-0008, ALJ Case No. 2008-CAA-00003 (ARB Mar. 17, 2020), dismissing a whistleblower complaint filed under various employee protection provisions and finding that the employer's actions against the complainant were reasonable and taken to ensure employee safety after the complainant threatened to bring a gun to work. The ARB’s decision is instructive for employers deciding how to respond to workplace threats and establishes that such actions—when reasonably based on the circumstances—will not be considered retaliatory. The ARB’s decision also addresses the legal standard for motions to dismiss a complaint before a hearing, and reinforces that for a concern to be protected, it must be grounded in a reasonably perceived violation.

The US Nuclear Regulatory Commission (NRC) Office of Investigations (OI) recently published its Office of Investigations Annual Report FY 2017, which provides an overview of OI’s activities during the past fiscal year.

Notably, the report reveals that the largest category of OI investigations continues to be discrimination cases. “Discrimination” in this context refers to retaliation for engaging in protected activities established in Section 211 of the Energy Reorganization Act of 1974, as amended. Of the 115 OI investigations opened in FY 2017, 41 (36%) were discrimination cases. Although the number and proportion of discrimination investigations have slightly decreased from FY 2016, during which 46 (39%) of the opened cases were discrimination cases, discrimination has remained the largest case category for the past two years.

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.