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.
In response to the coronavirus (COVID-19), the US Department of Labor’s (DOL’s) chief administrative law judge (ALJ) issued an administrative order on March 19 clarifying the status of matters pending before the DOL’s Office of Administrative Law Judges (OALJ). The administrative order covers the following:
OALJ Hearings Suspended
Effective March 23, OALJ is suspending all hearings, including telephonic hearings, until May 15. Parties may petition the presiding ALJ to conduct a telephonic hearing but must demonstrate compelling circumstances. This suspension does not apply to cases in which the parties have jointly agreed to a decision on the record based on stipulated facts or a stipulated record.
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:
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.).
The NRC issued a Notice of Violation (NOV) on December 17, 2018, to the Wolf Creek Nuclear Operating Company (Wolf Creek) finding that the company violated 10 CFR 50.7, the NRC regulation protecting reactor licensee employees and contractors from retaliation for raising nuclear safety concerns. Based on the level of management involved, the NRC treated the violation as a Severity Level II violation, and proposed a civil penalty of $232,000. The NOV and proposed civil penalty followed an investigation by the NRC Office of Investigations and predecisional enforcement conference (PEC). In addition to the finding of a violation of 10 CFR 50.7 by a reactor licensee involving one of its contractors and the size of the proposed civil penalty, two aspects of the NOV are particularly noteworthy: (1) the form of the adverse action that resulted in the violation; and (2) the evidentiary standard of proof the NRC Staff used to find a violation.
In late September, the US Nuclear Regulatory Commission (NRC) made public a White Paper that it had initially issued internally to the Office of Nuclear Reactor Regulation (NRR) in March 2012. The White Paper, titled “NRC and Licensee Actions in Response to New Information from a Third Party,” discusses NRC expectations for how licensees should consider new information received from a third party that may affect a plant’s Final Safety Analysis Report (FSAR). It is our understanding that the White Paper is being released at this time due to a Freedom of Information Act (FOIA) request. Nonetheless, licensees should be aware of this White Paper and its potential impact should the NRC decide to apply this “guidance.”
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.
The NRC recently published an updated brochure on its “Pre-Investigation Alternative Dispute Resolution Program,” which affords licensees the opportunity to engage in Alternative Dispute Resolution (ADR) to resolve an individual’s allegation of discrimination for raising nuclear safety concerns prior to the start of an NRC Office of Investigations (OI) investigation. There are two types of Pre-Investigation ADR: (1) NRC-sponsored “Early ADR”; and (2) licensee-sponsored ADR. The brochure does not reveal any changes to the NRC’s Pre-Investigation ADR Program, which does not encompass technical safety concerns. Nonetheless, the program offers licensees and their contractors an opportunity to avoid an investigation into a discrimination allegation and other possible benefits, so it worth reviewing how the program works.
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.
The recently published US Nuclear Regulatory Commission (NRC) Office of Investigations (OI) Annual Report noted a 28% increase in the number of discrimination investigations in FY 2016 as compared to FY 2015. “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. OI conducts investigations at both reactor and materials sites, either at the request of specific NRC officials or on its own initiative. Of the 119 cases opened in FY 2016,
- 39% were discrimination investigations;
- 20% were investigations into suspected material false statements;
- 24% were investigations into potential violations of other NRC regulatory requirements; and
- 17% were assists to NRC staff.