Most nuclear facilities in the U.S. are managed by private companies and are subject to the requirements of the U.S. Nuclear Regulatory Commission (NRC) and the Occupational Safety and Health Administration (OSHA). As such, these companies, as well as their contractors, suppliers, and vendors, are subject to strict “employee protection” requirements, such as 10 C.F.R. § 50.7. These regulations prohibit discrimination by an NRC licensee, an applicant for a license, or a contractor or subcontractor of a licensee or applicant, against an employee for engaging in certain protected activities.
Protected activities involving NRC-licensed activities include raising nuclear safety concerns to management, refusing to engage in any unlawful practice, and contacting the NRC regarding safety concerns or alleged violations. Discrimination, or retaliation, includes discharge and other adverse actions that relate to compensation, terms, conditions, or privileges of employment. Licensees and contractors typically have established an Employee Concerns Program (ECP) that provides an alternate path for employees and contractors to report nuclear safety, technical, and compliance concerns, and concerns dealing with harassment, intimidation, retaliation, or discrimination (HIRD) for having engaged in protected activities. The ECP organization is separate and independent of the line-management chain.
The Department of Energy (DOE) is unusual among nuclear facility operators in that it also acts as its sites’ main safety regulator and, as such, is authorized to enforce its own nuclear safety standards and to penalize its contractors for failing to comply with those standards. Yet, DOE also has laws, regulations, and policies requiring that various mechanisms be made available for DOE contractor employees to raise or elevate concerns or seek whistleblower protections—that is, to seek a legal remedy for alleged unlawful retaliation for making protected disclosures about serious safety hazards, violations of law, or mismanagement, among other issues. The key programs available for DOE employees and contractors at DOE sites include:
- Employee Concerns Program. DOE’s ECP—which is available to both DOE and contractor employees at DOE sites—is governed by DOE Order 442.1A and associated guidance. Contractors must assist DOE with resolving employee concerns, but neither the ECP order nor DOE’s safety regulations require contractors to provide their own ECPs.
- Whistleblower Protection. DOE contractor employees seeking a legal remedy for alleged unlawful retaliation under DOE’s 708 Program, the OSHA Whistleblower Protection Program, or the four-year enhanced whistleblower protection pilot program must establish that they made a protected disclosure. The details of what constitutes a protected disclosure vary among the programs, as do their relevant jurisdictions.
According to a recent GAO report, there are a number of concerns with DOE’s program to protect whistleblowers, such as the lack of guidance or expectations regarding the organizational and functional independence of contractor-provided ECPs. The GAO report also noted DOE’s whistleblower protection program does not cover certain types of employees and disclosures, such as those made to GAO, Department of Justice officials, courts, or grand juries. This is not only theoretical, as individuals have alleged that they were terminated for speaking with GAO regarding their concerns with the adequacy of the DOE ECP. The formality required to file whistleblower claims may also present challenges to effective use of the protections available to employees. GAO also noted concerns with asymmetrical availability of resources, such the fact that contractor attorney fees and settlement costs are generally reimbursable expenses paid by DOE, while the whistleblower may need to pay attorney fees to retain counsel.
DOE’s enhanced whistleblower pilot program addresses, to some extent, the concerns with the existing programs. The pilot program covers a wider range of employees and expands the list of organizations and agencies to which protected disclosures can be made. The pilot program also lowers the threshold related to the significance of disclosures and extends the statute of limitations for filing a compliance alleging unlawful retaliation from 90 days to three years. The pilot also expands the remedies available to a whistleblower. Unfortunately, the pilot program has not been widely deployed at DOE facilities, and the prospects that the pilot will be expanded are uncertain.
Looking ahead, DOE has agreed to revise its ECP order and guidance to help ensure that the organizational placement and practices of DOE and contractor ECPs do not inhibit employees from raising safety and other concerns. DOE also has committed to revise its policies to clarify what constitutes as evidence of a chilled work environment and clarify the steps to be taken to hold contractors accountable for creating a chilled work environment. And, DOE will develop and implement an independent evaluation process for routinely and accurately measuring contractor employees’ willingness to raise safety and other concerns without fear of retaliation. These steps by DOE will bring its ECP and whistleblower programs closer to the levels demanded by the NRC at civilian nuclear facilities.