If you have suffered illegal retaliation under the Energy Reorganization Act, you may be entitled to reinstatement in your job; back pay for lost wages; front pay for future lost wages; litigation costs and attorney fees; and other compensatory damages.
As with all legal claims, deadlines are crucial. ERA complainants must file with the Occupational Safety and Health Administration (OSHA), part of the DOL, within 180 days of the retaliatory action.
What activities are covered by ERA whistleblower protection?
Section 211 of the ERA protects employees who raise concerns about nuclear safety. An employee participates in protected activity by providing specific information to certain authorities — including the employer itself — about rule-breaking or other matters that may affect nuclear safety. Examples include:
- Refusing to engage in a practice that is unlawful under NRC rules;
- Testifying in an NRC enforcement proceeding;
- Filing nonconformance reports;
- Revealing potential quality assurance problems;
- Reporting violations of safety procedures;
- Complaining about inadequate safety regulations;
- Complaining about practices that violate NRC’s requirements to keep radiation exposure as low as reasonably achievable;
- Questioning a superior about the correct safety procedure for surveying and tagging contaminated tools;
- Participating in a surveillance that identifies instruments that are not correctly calibrated;
- Complaining about impact of having employees that perform safety-related functions work overtime; and
- Complaining about the nuclear-safety impact of short staffing.
What must a plaintiff prove to prevail?
To successfully establish an ERA whistleblower claim, an employee must prove the following:
- The employee engaged in protected activity;
- The employer knew of the protected activity;
- The employee was subjected to adverse action by the employer; and
- The employee’s protected activity contributed to the employer’s decision to take an adverse action against the employee.
What is the employee’s burden of proof?
Employees must prove by a preponderance of the evidence that their protected activity was a contributing factor in the employer’s decision to take the unfavorable personnel decision.
What is the employer’s burden of proof?
If a plaintiff successfully proves that the protected activity was a contributing factor, an employer must demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.
What retaliatory acts are prohibited under the ERA?
The ERA prohibits a wide range of retaliatory actions, including termination, suspension, demotion, blacklisting, and any act that would dissuade a reasonable person from engaging in further protected activity.
What role does the NRC play in protecting nuclear whistleblowers from retaliation?
The NRC investigates all retaliation claims and typically also the underlying safety or regulatory compliance issue about which the employee blew the whistle. If the NRC finds that a licensee has violated any of the provisions of the ERA, then the NRC may impose civil penalties.
What can a prevailing plaintiff recover?
Under the ERA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the ERA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including attorney fees.
