You are here

10 C.F.R. 708: DOE Contractor Employee Protection Program

Stakeholders: Employee(s) of DOE contractor(s)

Scope: 10 C.F.R. 708 establishes criteria and procedures for the investigation, hearing, and review of allegations from DOE contractor employees of employer reprisal resulting from employee disclosure of information to DOE, to members of Congress, or to the contractor; employee participation in proceedings before Congress or pursuant to this subpart; or employee refusal to engage in illegal or dangerous activities, when such disclosure, participation, or refusal pertains to employer practices which the employee believes to be unsafe; to violate laws, rules, or regulations; or to involve fraud, mismanagement, waste, or abuse.

Summary: 

  • General Provisions: 10 C.F.R. 708 Subpart A
    • If you are an employee of a contractor, you may not file a complaint against your employer under this part if:
      (a) The complaint is based on race, color, religion, sex, age, national origin, or other similar basis; or
      (b) The complaint involves misconduct that you, acting without direction from your employer, deliberately caused, or in which you knowingly participated; or
      (c) Except as provided in §708.15(a), the complaint is based on the same facts for which you have chosen to pursue a remedy available under: 
      (1) Department of Labor regulations at 29 CFR part 24, “Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes;” 
      (2) Federal Acquisition Regulations, 48 CFR part 3, “Federal Acquisition Regulation; Whistleblower Protection for Contractor Employees (Ethics);” 
      (3) State or other applicable law, including final and binding grievance-arbitration, as described in §708.15 of subpart B; or
      (d) The complaint is based on the same facts in which you, in the course of a covered disclosure or participation, improperly disclosed Restricted Data, national security information, or any other classified or sensitive information in violation of any Executive Order, statute, or regulation.
      (e) The complaint deals with “terms and conditions of employment” within the meaning of the National Labor Relations Act, except as provided in §708.5.
    • If you are an employee of a contractor, you may file a complaint against your employer alleging that you have been subject to retaliation for:
      (a) Disclosing to a DOE official, a member of Congress, any other government official who has responsibility for the oversight of the conduct of operations at a DOE site, your employer, or any higher tier contractor, information that you reasonably believe reveals—
      (1) A substantial violation of a law, rule, or regulation;
      (2) A substantial and specific danger to employees or to public health or safety; or
      (3) Fraud, gross mismanagement, gross waste of funds, or abuse of authority; or
      (b) Participating in a Congressional proceeding or an administrative proceeding conducted under this part; or
      (c) Subject to §708.7 of this subpart, refusing to participate in an activity, policy, or practice if you believe participation would—
      (1) Constitute a violation of a federal health or safety law; or
      (2) Cause you to have a reasonable fear of serious injury to yourself, other employees, or members of the public.
  • Employee Complaint Resolution Process: 10 C.F.R. 708 Subpart B
    • This subsection provides the requirements for filing a complaint, the requisite information to be included in the complaint, the timing of filing a complaint, and the appeal process, among other guidelines.
      • If you were employed by a contractor whose contract is handled by a contracting officer located in DOE Headquarters when the alleged retaliation occurred, you must file two copies of your written complaint with the EC Director.
      • If you were employed by a contractor at a DOE field facility or site when the alleged retaliation occurred, you must file two copies of your written complaint with the Head of Field Element at the DOE field element with jurisdiction over the contract.
  • An employee’s identity will not be kept confidential. A copy of the complaint will be made public. 
  • Within the complaint, the employee must include:
    • A statement that describes alleged retaliation and details the action that the employee believes precipitated the retaliation
    • A statement declaring that the employee is not pursuing recourse under State or other applicable law
    • A statement indicating that all facts made in statement are accurate and truthful
    • A statement which affirms that the employee has exhausted all other applicable grievances and arbitration procedures
  • The complaint must be filed within 90 days of the alleged retaliation
  • Investigation, Hearing and Due Process: 10 C.F.R. 708 Subpart C
    • There will be an attempt at an informal resolution. If this is not successful, the Head of Field Element or EC Director will notify the employee in writing of the following options:
      • (1) Request that the complaint be referred to the Office of Hearings and Appeals for a hearing without an investigation; or
      • (2) Request that the complaint be referred to the Office of Hearings and Appeals for an investigation followed by a hearing.
    • If there is an investigation:
      • The investigator will complete the investigation and issue a report of investigation by the 60th day after the complaint is received by the Office of Hearings and Appeals, unless the OHA Director, for good cause, extends the investigation for no more than 30 days.
    • A hearing will follow if deemed necessary. At the hearing:
      • The employee who files a complaint has the burden of establishing by a preponderance of the evidence that he or she made a disclosure, participated in a proceeding, or refused to participate, as described under §708.5, and that such act was a contributing factor in one or more alleged acts of retaliation against the employee by the contractor. Once the employee has met this burden, the burden shifts to the contractor to prove by clear and convincing evidence that it would have taken the same action without the employee's disclosure, participation, or refusal.
    • The rest of the section covers the appeal process, remedies, and the final agency decision in detail

10 C.F.R. 708:  DOE Contractor Employee Protection Program