Whistleblower Protection for Employees under the Energy Reorganization Act

1. Employees and Employers Covered

Under the Energy Reorganization Act (ERA), certain employees in the nuclear power and nuclear medicine industries may file complaints to the Department of Labor, through the Occupational Safety and Health Administration (OSHA), if they believe that they have experienced discrimination or retaliation for reporting alleged violations of nuclear safety laws or regulations. Under the ERA, the definition of an employee refers to anyone who is employed by a licensee of the Nuclear Regulatory Commission, the Department of Energy, and their contractors and subcontractors. Independent contractors may also be protected, depending on the extent of control the employer exercised over a worker. Former employees are protected where the employer’s post-employment actions arise out of his/her former employment.

These protections do not apply to any employee who acts without direction from his or her employer, and thereby deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act.

2. Protected Activity

An employee is protected from retaliation in situations where he/she is reporting internally, to regulators, or to media, issues of nuclear safety. These actions are protected only when the reported practices are that which he or she reasonably believes to implicate nuclear safety. The employee must reasonably believe the employer is engaged in the conduct, but does not need to be right in the belief as long as the belief is reasonable.

3. Proving Your Case

Any employee who believes that (s)he has been discharged or otherwise discriminated against for engaging in such protected activity may file a complaint with the Secretary of Labor, through OSHA, within 180 of the alleged incident.

The Secretary shall dismiss the complaint unless the complainant has made a prima facie showing that any of the behaviors prohibited in the Act was a contributing factor in the unfavorable personnel action alleged in the complaint. Relief may not be ordered if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.

4. Available Remedies

If an employee’s whistleblower claim under the ERA is successful, he/she is entitled to reinstatement, and may be entitled to back pay and benefits, lost wages, compensatory damages for pain and suffering, and attorneys’ fees.

5. Time to File: 180 days after alleged violation.

If you believe that you have a whistleblower claim under the ERA, please contact an attorney at Sidkoff, Pincus & Green, located in Philadelphia, Pennsylvania.