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The Department of Labor’s (DOL’s) Administrative Review Board (ARB) recently announced it is updating its electronic filing system (EFS) at 8:30 am EST on December 7, 2020. Beginning December 7, all parties who wish to file electronically must use EFS to file documents electronically with the ARB. The current electronic filing system (EFSR) will shut down permanently at 5:00 PM EST on December 3, 2020. This means that parties will not be able to file documents electronically with the ARB after 5:00 pm EST on December 3 until 8:30 am EST on December 7.

It is important to note that EFS is strictly a “filing” system. Thus, parties using EFS will remain responsible for serving notices of appeal and all other filings on other parties to the case. Additionally, parties will still have the option of filing documents with the ARB in paper form by regular mail. Use of EFS is not mandatory at this time.

The Occupational Safety and Health Administration (OSHA) recently held a public stakeholder meeting to discuss its Whistleblower Protection Program and how it can improve its administration of the 20-plus whistleblower protection provisions it is responsible for enforcing, including Section 211 of the Energy Reorganization Act of 1974 (ERA). As we reported, OSHA is holding these stakeholder meetings in lieu of the Whistleblower Protection Advisory Committee due to the administration’s reduction in advisory committees. This call followed a similar call OSHA hosted in May, on which we also reported.

The US Department of Labor’s chief administrative law judge (ALJ) issued an administrative order and notice on June 1, indefinitely suspending all in-person hearings before the Office of Administrative Law Judges (OALJ). The indefinite suspension is due to the ongoing coronavirus (COVID-19) pandemic, which continues to cause travel and social proximity risks. Thus, for now, hearings will continue to be held by telephone or videoconference.

The US Department of Labor (DOL) recently published a new rule to give the Secretary of Labor discretion to review Administrative Review Board (ARB) decisions. In 1996, the Secretary of Labor established the ARB while simultaneously granting it the authority and assigning it the responsibility to issue final agency decisions—after review or on appeal—of matters arising under various worker protection laws, including the many whistleblower protection laws administered by the DOL. Under the new rule, the Secretary now has the ability to review the ARB’s decisions under these same laws.

The Occupational Safety and Health Administration (OSHA) recently held a public stakeholder meeting to discuss its Whistleblower Protection Program and how it can improve its administration of the 20-plus whistleblower protection provisions it is responsible for enforcing, including Section 211 of the Energy Reorganization Act of 1974 (ERA).

The NRC recently issued its Allegation Program Annual Trends Report analyzing regional, national, and site-specific allegation trends for calendar year 2019. The report shows a decrease of almost 50% in total allegations between 2015 and 2019. The cover letter to the report attributes this decrease to “[i]ncreased focus by the [NRC] and licensees on maintaining environments for raising concerns.” Notwithstanding this, allegations of chilled work environments and discrimination for raising safety concerns make up the vast majority of allegations among reactor sites.

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.

One threshold issue in whistleblower cases involving alleged retaliation is whether a complainant who is not a direct employee is nonetheless a “covered employee.” Under the employee protection provisions found in the several environmental statutes administered by the US Department of Labor (DOL), including, but not limited to, the Clean Air Act, Safe Drinking Water Act, Solid Waste Disposal Act, and Toxic Substances Control Act (collectively, the Environmental Statutes), the DOL’s Administrative Review Board (ARB) has applied two tests to answer this question.

The US Department of Labor’s chief administrative law judge (ALJ) issued a supplemental administrative order on April 10, extending the suspension of in-person hearings before the Office of Administrative Law Judges (OALJ). The supplemental order, issued in response to the coronavirus (COVID-19) crisis, also extends several procedural deadlines but modifies the hold on issuing decisions. As we reported, the chief ALJ suspended all OALJ hearings and certain procedural deadlines in his March 19 order. The chief ALJ’s March 19 order and its deadlines remain in effect until May 15. The supplemental order extends the deadlines beyond May 15, as follows.

The US Department of Labor’s Occupational Health and Safety Administration (OSHA) released a statement on April 8 reminding employers that they cannot retaliate against workers who report unsafe or unhealthy working conditions during the coronavirus (COVID-19) pandemic. The statement reminds employers that acts of retaliation can include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.