Are whistleblowers in nuclear industry protected from retaliation?

Section 211 of the Energy Reorganization Act (ERA) protects employees who raise concerns about nuclear safety.

What activities are protected?

Employees are protected when they provide specific information to the employer, the Nuclear Regulatory Commission (NRC), or Congress concerning issues implicating nuclear safety or a violation of NRC rules. Examples include:

  1. Refusing to engage in a practice that is unlawful under NRC rules;
  2. Testifying in an NRC enforcement proceeding;
  3. Filing nonconformance reports;
  4. Disclosing potential quality assurance problems;
  5. Reporting violations of safety procedures;
  6. Questioning a superior about the correct safety procedure for surveying and tagging contaminated tools;
  7. Complaining about the nuclear-safety impact of inadequate staffing;
  8. Participating in a surveillance that identifies instruments that are not correctly calibrated; and
  9. Complaining about practices that violate NRC's requirements to keep radiation exposure to a minimum.

What is the burden of proof?

To prevail in an ERA case, an employee must prove:

  1. That she engaged in protected activity;
  2. That the employer knew about the protected activity;
  3. That the employer subjected her to an unfavorable personnel action; and
  4. That the protected activity was a contributing factor in the unfavorable personnel action.

If an employee successfully proves that his or her protected activity was a contributing factor to the adverse action, an employer may avoid liability if the employer demonstrates by clear and convincing evidence that it would have legitimately taken the same adverse action absent the employee's protected activity.

What retaliatory acts are prohibited under the ERA?

The ERA prohibits a broad range of retaliatory actions, including termination, suspension, demotion, blacklisting, and any act that would dissuade a reasonable person from engaging further protected activity.

What is the procedure for filing a retaliation complaint?

An employee that suffers retaliation for disclosing violations of the NRC rules can file a complaint with Occupational Safety and Health Administration within 180 days of the date where the discriminatory decision was made and communicated to the employee.

What role does the NRC play in protecting nuclear whistleblowers from retaliation?

The NRC investigates all retaliation claims and also the underlying safety or regulatory compliance issues that the employee disclosed. The NRC may impose civil penalties if it finds that a licensee has violated a provision of the ERA, including the retaliation provision.

What remedies are available for a prevailing employee?

Under the ERA, a prevailing employee can receive back pay for lost wages, compensatory damages, litigation costs, including attorney fees. The ERA also authorizes reinstatement.