Whistleblower Law Blog

DOJ ARB Rejects “Duty Speech” Defense to ERA Nuclear Whistleblower Retaliation Claims

In Vinnett v. Mitsubishi Power Systems, the Department of Labor Administrate Review Board held that employees who report nuclear safety concerns engage in protected conduct under Section 211 of the Energy Reorganization Act (ERA) regardless of whether they are blowing the whistle in the course of performing their job duties.  The ARB states:

[T]here is nothing in the language of the ERA that carves out an exception limiting whistleblower protection based on an employee’s job duties. To the contrary, the statute protects “any employee” who engages in protected activity. Congress passed the ERA in 1974 as part of its continuing effort to regulate the production, use, and control of nuclear energy. An employee protection provision was added in 1978 to protect employees who assist or participate in any proceeding to administer or enforce the requirements of the ERA or the Atomic Energy Act of 1954. Nuclear safety is encouraged by protecting workers from retaliation because they report safety concerns. “The whistleblower provision in the [ERA] is modeled on, and serves an identical purpose to, the provision in the Mine Health and Safety Act [sic]. They share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality.” As the court in Mackowiak observed, “The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.” Congress amended the ERA in 1992 to expand its whistleblower protection to workers who report safety violations to their employers. Because the ALJ erroneously concluded that Vinnett had not engaged in protected activity because he was just doing his job, the ALJ committed reversible error.

This is a significant rejection of the “duty speech” defense and likely applies to all whistleblower protection actions litigated before DOL.

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