On May 15, 2013, the Occupational Safety and Health Administration (“OSHA”) ordered the reinstatement of an engineer who claimed that he was terminated after reporting hazardous conditions at a nuclear power plant.  In addition, OSHA awarded the engineer more than $150,000 in back wages, more than $50,000 in compensatory damages, and his attorneys’ fees.

Enercon Services, Inc. (“Enercon”) employed the engineer at the Wolf Creek Generating Station (“Wolf Creek”), a nuclear power plant licensee of the Nuclear Regulatory Commission (“NRC”), to provide support services for a fence construction project around the plant’s Pump House.  The pumping equipment supplied water to cool the plant’s heat exchangers and other safety-related equipment through an underground piping system.  Although the depth of the pipes varied, NRC regulations required a minimum soil depth of 4 feet 6 inches.

While touring the worksite with the project manager on or about January 19, 2012, the engineer discovered that a trench had been dug over the location where some of the pipes were buried.  The engineer was aware that the pipes had only minimal coverage at that location and pointed out to the project manager that the trench had therefore breached the protection zone.

The breach was reported to Enercon and Wolf Creek management.  Meetings were held to determine the cause of the error.  Following the meetings, Enercon fired the project manager and directed the engineer to backfill the trenches with concrete.   The engineer objected, citing safety concerns; ultimately, Enercon used cohesive soil for the backfill work.

On January 30, 2012, Enercon terminated the engineer for inadequate performance leading to unacceptable results. Shortly thereafter, the engineer filed a complaint with the U.S. Department of Labor (“DOL”) claiming that he was wrongfully terminated in retaliation for having engaged in activity protected under the Energy Reorganization Act (“ERA).

Pursuant to its authority to decide whistleblower complaints for the DOL, OSHA concluded that the engineer had proved by a preponderance of the evidence that he had engaged in protected activity, that his activity was known to Enercon, and that his protected activity was a contributing factor in the decision to terminate him. OSHA concluded that the temporal proximity between the engineer’s protected activity and his termination showed that the termination was retaliatory.  The agency rejected Enercon’s affirmative defense that it would have fired the engineer in the absence of his protected activity based on his inadequate performance and ultimate responsibility for the errors committed on the fence project.  OSHA concluded that the evidence showed that the engineer had performed well, was conscientious about safety-related issues, and the errors that occurred in the field were not his fault.

Enercon has thirty (30) days from its receipt of OSHA’s findings to file objections and request a hearing before an Administrative Law Judge (“ALJ”).  The hearing before the ALJ is an adversarial proceeding, in which the parties are permitted to present their evidence and arguments for de novo review.  Prior to the hearing, parties are allowed to take discovery, including depositions, to develop their respective positions.  At the hearing, the engineer must satisfy a higher standard of proof than that which applied during the underlying investigation, i.e., he must establish by a preponderance of the evidence that his protected activity caused, or was the motivating—as opposed to merely a contributing—factor behind, his termination.  Should the ALJ hold that the engineer has satisfied this burden, relief may nevertheless be denied if Enercon can demonstrate that it would have terminated the engineer even in the absence of the protected activity.  Should the ALJ reject Enercon’s affirmative defense to liability, it would be ordered to reinstate the engineer with full back pay and other make-whole relief, in addition to paying his compensatory damages, attorney’s fees and costs.  In that event, Enercon would have one other level of administrative review within the Department of Labor – by lodging a request for review with the Administrative Review Board (“ARB”) accompanied by a motion to stay the ALJ’s award based on a showing of exceptional circumstances.  Should the ARB accept the appeal for review but deny the stay, the DOL regulations provide that Enercon would be required to comply with all aspects of the ALJ’s award, other than payment of compensatory damages, pending the issuance of a final agency order by the ARB.

These regulations appear to conflict with the plain language of the ERA whistleblower provisions, which grant an aggrieved party an immediate right of appeal to the appropriate U.S. Circuit Court of Appeals following the completion of an investigation by the Secretary.  The Secretary’s authority to issue a rule requiring an employer to comply with a non-final agency order for reinstatement, back pay, attorney’s fees and costs has never been tested in court.  Such an opportunity would arise should the Secretary bring an action for enforcement of the non-final order in district court if Enercon refuses to comply voluntarily while the ARB proceedings are pending.