Department of Energy contractors and subcontractors may be subject to additional civil penalties with the addition of an updated whistleblower protection rule.

The DOE recently adopted a final whistleblower protection rule in its procedural regulations for nuclear activities.

Whistleblower Protection Rule

The whistleblower protection rule clarifies that the DOE may assess civil penalties against certain contractors and subcontractors that violate Nuclear Safety Requirements which prohibits retaliation against employees who report nuclear safety concerns.

The revision comes at the heels of a July 2016 US Government Accountability Office (GAO) report that strongly criticized DOE’s culture for allowing contractor employees to raise concerns without fear of reprisal.

The GAO audit report, entitled “Whistleblower Protections Need Strengthening,” was requested by Congress in 2014 in response to repeated complaints of retaliation at the Hanford nuclear site in Washington.

The scope of the audit expanded to include a broad review of how the DOE handles whistleblower complaints at its nuclear sites.

In its report, the GAO blasted the DOE for failing to use its enforcement authority to hold civil contractors accountable for retaliation, noting that it has done so just twice in the past two decades.

The GAO also noted that despite the DOE’s stated policy of preventing a “chilled work environment” – one in which employees fear retaliation if they complain about dangerous or illegal practices – the DOE has not clearly defined what constitutes a “chilled environment”, nor has the agency taken concrete steps to prevent contractors from maintaining such an environment.

The GAO also sharply criticized the DOE for paying tens of millions of dollars to reimburse contractors for legal fees expended in defending whistleblower retaliation claims by employees.

Going forward, the DOE’s newly adopted whistleblower protection puts contractors and subcontractors who retaliate against nuclear employees for raising safety concerns on notice for being subjected to additional civil penalties.

However, updated the whistleblower protection rule does not appear to expand DOE’s enforcement authority but rather formalize its existing position with respect to its enforcement authority and the prohibition against whistleblower retaliation as a requirement that implicates nuclear safety.

Other Protections for Nuclear Whistleblowers

It is important to bear in mind that no changes in compliance and enforcement efforts by the DOE will prevent all whistleblower retaliation. But employees should understand that they do have rights if they experience retaliation that they can vindicate without action by the DOE.

For example, the Energy Reorganization Act (ERA) contains an anti-retaliation provision that protects nuclear whistleblowers. The ERA allows employees to file a charge with the Occupational Safety and Health Administration (OSHA), who may investigate the charge, issue findings and order remedies.

Filing a Whistleblower Lawsuit

An individual who believes he or she has experienced retaliation for blowing the whistle about nuclear safety issues or other illegal conduct should contact an attorney promptly. An attorney who specializes in whistleblower cases assess your situation and explain which legal option may be best for you.