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 National Labor Relations Board (Board) published a Notice of Proposed Rulemaking and Request for Comments in the Federal Register on September 14. The proposed rule seeks to reestablish the standard for determining joint-employer status that existed before the Board’s 2015 Browning-Ferris Industries of California decision.

This is a potentially significant development for companies in the nuclear industry, particularly for those with unionized workforces. But the proposed rule is also important for nuclear companies with nonunion workforces because joint-employment issues frequently arise in whistleblower cases, in which contract employees seek to hold the utility liable under Section 211 of the Energy Reorganization Act, as well as their actual employer (the contracting company). Although the US Department of Labor (DOL)—not the Board—adjudicates Section 211 claims, DOL sometimes considers Board decisions in its adjudications. Consequently, the proposed rule, if ultimately promulgated, will likely inform future Section 211 cases.

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.