On September 30, a bipartisan group of U.S. Senators reintroduced a bill to clarify existing law and ensure that Department of Energy (DOE) and Nuclear Regulatory Commission (NRC) employees have access to court trials for whistleblower retaliation cases.
In 2005, Congress passed the Energy Policy Act of 2005 which amended the Energy Reorganization Act of 1974 (ERA) to extend whistleblower protection rights to DOE and NRC employees. However, court rulings determined that these employees’ whistleblower retaliation cases would be summarily dismissed because the law did not clearly waive sovereign immunity in the law.
Due to these court rulings, nuclear safety whistleblowers employed by the DOE or NRC do not have the same protections as those employed in the private sector. The newly reintroduced bill adds language to the Energy Policy Act of 2005 to close this loophole and ensure that DOE and NRC whistleblowers have court access, as originally intended by Congress.
Under the whistleblower protections of the ERA, nuclear safety whistleblowers can file retaliation complaints with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory act. If OSHA, which has been criticized for its delays in handling whistleblower cases, does not issue a ruling within a year, then the whistleblower can file a suit in federal court. Nuclear safety whistleblowers who face retaliation can receive reinstatement, back pay with interest, a complete “make whole” remedy (including restoration of seniority/sick leave, etc.), compensatory damages (for emotional distress and loss of professional reputation), attorneys’ fees and costs and “affirmative relief” (such as requiring a letter of apology and formal posting of the decision).
The Department of Energy and Nuclear Regulatory Commission Whistleblower Protection Act was reintroduced by Senators Chuck Grassley (R-IA), Tammy Duckworth (D-IL), Ron Wyden (D-OR) and James Lankford (R-OK). The bill is endorsed by the National Whistleblower Center, the Government Accountability Project, the National Taxpayers Union, the Project on Government Oversight, Public Citizen, the Taxpayer Protection Alliance, Acorn 8, Transparency International – U.S. Office and Whistleblowers of America.
“Every individual should be protected when blowing the whistle on a nuclear safety violation, which is why Congress was right to act more than 15 years ago to ensure civil servants at the Department of Energy and Nuclear Regulatory Commission received the same whistleblower protections and due process rights as nuclear energy industry employees,” Senator Duckworth said. “The legal loophole that now denies DOE and NRC employees full whistleblower protections when engaging in protected activity ultimately weakens oversight, accountability and public confidence in the industry, and I am grateful to be working with a strong bipartisan coalition that shares my commitment to swiftly fixing this problem.”
“Whistleblowers are on the front lines in the battle against fraud and mismanagement in government,” said Senator Grassley, Chairman of the Senate Whistleblower Protection Caucus. “Their work shines a light on problems that might otherwise go unnoticed, and they ought to be celebrated and protected, not demonized and punished. That was Congress’ view in 2005 when we passed the Energy Policy Act and that’s our view today. This bill reiterates our intent and clarifies the law to make it clear that whistleblowers who call attention to nuclear safety violations are protected from retaliation.”