Who is protected by the ERA?
Doyle Dennis represents whistleblowers and employees who work in the area of nuclear energy or who contract with companies who are Licensees of the Nuclear Regulatory Commission. The Energy Reorganization Act (ERA) of 1974 provides important protection to employees in the nuclear industry and pr retaliation by their employers for reporting violations of federal law. Generally, the ERA applies to the following types of employers:
- Licensees of the Nuclear Regulatory Commission or an Agreement State and applicants for such licenses;
- Contractors or subcontractors of licensees (or applicants for licenses) of the Nuclear Regulatory Commission or an Agreement State;
- Nuclear Regulatory Commission contractors or subcontractors;
- Department of Energy contractors and subcontractors that are indemnified by Department of Energy under the Atomic Energy Act; and
- The Nuclear Regulatory Commission and Department of Energy.
Currently, the Nuclear Regulatory Commission has regulatory power over 93 commercial nuclear power reactors operating in twenty-eight states; thirty-one research and test (non-power) reactors; approximately 4,200 people licensed to operate reactors; twenty-five nuclear reactors in the process of decommissioning; eighty independent spent fuel storage installations; nine licensed fuel cycle facilities; three uranium recovery sites; and approximately 2,200 research, medical, industrial, government, and academic materials licensees.
What is protected?
An employer covered by the ERA may retaliate against an employee for any of the following acts:
- Notifying an employer of an alleged violation of the Energy Reorganization Act or the Atomic Energy Act;
- Refusing to engage in any practice made unlawful by the Energy Reorganization Act or the Atomic Energy Act after identifying the alleged illegality to the employer;
- Testifying before Congress or at any Federal or State proceeding regarding any provision (or proposed provision) of the Energy Reorganization Act or the Atomic Energy Act;
- Commencing, causing to be commenced, or having been about to commence a proceeding under the Energy Reorganization Act or the Atomic Energy Act;
- Testifying or being about to testify in a proceeding under the Energy Reorganization Act or the Atomic Energy Act;
- Assisting or participating in any manner in a proceeding under the Energy Reorganization Act or the Atomic Energy Act, or in any other action to carry out the purposes of the Energy Reorganization Act or the Atomic Energy Act.
How can I prove retaliation?
To prove an ERA claim, the employee must present evidence they engaged in an ERA-related protected act, suffered an adverse action, that the employer knew about the protected act, and that the act was a contributing factor in the adverse action. The ERA only applies a contributing factor standard for causation, which means the worker only needs to show that the ERA-related protected act was a factor which, alone or with other factors, in any way affects the outcome of a decision.
How do I file a claim or lawsuit?
If a covered an employer violated the ERA, the worker must file a complaint with OSHA within 180 days after the retaliation or after the date when the employee learned of the retaliation. After OSHA makes its findings regarding the claim, the employee or employer may request a hearing from an administrative law judge, so long as they make the request within 30-days of the findings. In addition, after the ALJ makes findings, the employer, employee, or OSHA may appeal to the Department of Labor. If after 365 days, the Department does not issue a final decision, the employee then may file a lawsuit in federal court.
What Damages are available?
An employee covered by the ERA who has suffered from retaliation, may be able to claim lost wages, mental anguish, compensatory damage, punitive damage, and attorney’s fees.
