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42 U.S.C. § 5851: Employee Protection

Stakeholders: Employee(s) of DOE contractors and subcontractors; Employee(s) of Nuclear Regulatory Commission contractors, licensees of the Commission or an agreement State and licensee applicants

Scope: 42 U.S.C. § 5851 outlines a procedure to ensure that all those working in nuclear facilities understand and are able to employ their right to “whistle blow.” 42 U.S.C. § 5851 explicitly states that no employee can be discharged or discriminated against due to “whistle blowing” and mandates that the Secretary of Labor penalize any employers who partake in such unjustly punitive behavior.

Summary:

  • Discrimination Against [an] Employee: 42 U.S.C. § 5851(a)
    • No employer may discharge or discriminate against an employee simply because the employee:
      • Notified his employer of alleged violation of Atomic Energy Act of 1954
      • Refused to engage in act deemed unlawful under the Atomic Energy Act of 1954
      • Testified before Congress/ State proceeding/Federal proceeding regarding provisions within the Atomic Energy Act of 1954
      • Commenced or intends on commencing a proceeding under the Atomic Energy Act of 1954
      • Testified or intends on testifying in a proceeding under the Atomic Energy Act of 1954
      • Assisted or participated in or intends on assisting/participating in any proceeding or actions to carry out the purposes of the Atomic Energy Act of 1954
  • Complaint, Filing, and Notification: 42 U.S.C. § 5851 (b)
    • Any employee who feels that he/she has been discriminated against and/or wrongfully discharged may file a complaint with the Secretary of Labor within 180 days after the alleged violation occurs.
    • Upon receiving the complaint the Secretary will notify the complainant of receipt.
    • Within 30 days of receiving the complaint the Secretary will conduct and complete an investigation of the alleged violation.
    • Within 90 days of receiving the complaint the Secretary will issue an order which either denies the complaint or prescribes remedies for said complaint.
    • If the Secretary determines that a subsection of the Atomic Energy Act of 1954 has been violated, the Secretary will order the violator to abate the violation and reinstate the complainant/employee to his former position with compensation and back pay.
    • The Secretary will dismiss a complaint and will not conduct an investigation unless the submitter has made a prima facie showing that “whistle blowing” was in fact the cause of discrimination and/or dismissal.
    • The Secretary will not conduct an investigation if the employer can demonstrate, by clear and convincing evidence, that the same allegedly discriminatory actions would have occurred sans the submitter’s “whistle blowing.”
    • The Secretary may assert that a violation of Atomic Energy Act of 1954 has occurred only if submitter has proven that he/she has in fact endured punitive treatment as a result of “whistle blowing.”
  • Review: 42 U.S.C. § 5851 (c)
    • A person who is adversely affected by a particular order may, within 60 days, seek review within the United States Court of Appeal.
  • Jurisdiction: 42 U.S.C. § 5851 (d)
    • If a person fails to obey an order issued by the Secretary of Labor, the Secretary may file a civil action in the United States District Court for the district in which the violation was found to occur.

42 U.S.C. § 5851