Katz, Marshall & Banks partner Debra S. Katz and associate Nicole J. Williams published an article in The National Law Journal entitled “Protect Nuclear Whistleblowers.” The article, published on May 18, 2009, discussed the importance of whistleblower protections for nuclear energy employees. The full-text of the article is available below.
Protect Nuclear Whistleblowers
Upcoming ‘nuclear renaissance’ will bring grave risks to health and safety.
by Nicole J. Williams and Debra Katz
During the past few years, U.S. public policymakers from across the political spectrum and industry advocates have ushered in a “nuclear renaissance” — an era in which nuclear energy is being touted as the only technology, other than hydroelectric power, capable of generating large volumes of energy without directly producing greenhouses gases. Nuclear power advocates claim that a new generation of reactors will produce relatively cheap electricity while solving the threat of energy shortages and global climate change.
This renewed enthusiasm for the role of nuclear power comes after decades of staunch resistance to the risks of nuclear energy to public health, safety and the environment, which were tragically exposed in such nuclear power plant accidents as Three Mile Island in 1979 and the Chernobyl disaster in 1986. From the 1980s until about 2007, there was little political support for building new nuclear power plants.
The change of heart has been spawned by a combination of growing public concern about the effects of greenhouse emissions on the environment, an interest in reducing the U.S. dependence on foreign oil and the increased demand for more electric energy. Thus far, the industry has proposed building almost 30 new nuclear reactors, with some industry advocates calling for 300 new plants by midcentury. Massive federal subsidies, loan guarantees and production tax credits to the nuclear industry have provided the springboard for the greatest expansion of nuclear power in the United States since the 1960s.
What is troubling, however, is that this resurgence in support for nuclear power comes despite serious concerns about the tremendous costs of constructing new reactors, uncertainty regarding the future of highly radioactive waste disposal and ongoing violations of the rights of workers who bear the day-to-day responsibility of operating nuclear power plants and ensuring compliance with nuclear safety regulations.
With the expansion of the nuclear energy, there is bound to be pressure to build and operate nuclear plants faster and cheaper. If history tells us anything, these pressures will invariably lead to a “schedule over safety” culture at some plants, and nuclear workers will be pressured to cut corners and overlook safety problems in the interest of getting and keeping plants online and profits flowing to shareholders. These workers, who serve as the “eyes and ears” of the public, will be forced to decide whether and how vigorously to blow the whistle on their employer’s nuclear safety practices or to be silent out of fear of losing their jobs. It is crucial that these workers, who have a legal duty to report nuclear safety concerns, be aware of their legal rights and that nuclear power plants adhere to zero-tolerance policies that prohibit harassment, intimidation and other forms of retaliation made unlawful by the Energy Reorganization Act of 1974 (ERA).
U.S. courts of appeals in the majority of circuits have emphasized the importance of protecting nuclear workers from retaliation and have highlighted Congress’ intent to encourage nuclear industry employees to raise safety concerns without fear of reprisal. For example, in Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1569 (11th Cir. 1997), the court explained that “[a]mong the people best positioned to prevent fires [and other nuclear accidents] are the workers who tend to nuclear plants. But if fear of retaliation kept workers from speaking out about possible hazards, nuclear safety would be jeopardized.” As the U.S. Court of Appeals for the 6th Circuit noted, the purpose of the ERA is to “prevent employers from discouraging cooperation with Nuclear Regulatory Commission (NRC) investigators, and not merely to prevent employers from inhibiting disclosure of particular facts or types of information.”DeFord v. Sec’y of Labor, 700 F.2d 281, 286 (6th Cir. 1983). Whistleblower retaliation “remain[s] all too common in parts of the nuclear industry,” and the protections of the ERA “are intended to address those remaining pockets of resistance.” Stone, 115 F.3d at 1572.
The ERA provides important protections for employees who provide information about, or participate in investigations relating to, what they reasonably believe to be violations of nuclear safety laws and standards. The ERA applies to all licensees of the NRC, their subsidiaries, contractors and subcontractors, including companies that are involved in construction, maintenance, operation or cleanup at a nuclear facility.
The ERA prohibits an employer from taking “adverse employment action” against an employee for engaging in protected activity. Such adverse actions include firings, demotions, denial of promotions, reassignment of job duties and responsibilities, assignment of undesirable shifts, harassment and intimidation. The employee need only show that the protected activity was a “contributing factor” in the employer’s decision to take adverse action against the employee.
Given the grave consequences that blowing the whistle generally has to the careers of nuclear workers, the Department of Labor must approach its task of protecting the rights of these workers with renewed vigor — a task that will be made especially challenging by the determination of the nuclear industry to bring more reactors online in a shorter period of time than ever before in the industry’s history.
Nicole J. Williams is a senior associate at Washington-based Katz, Marshall & Banks, and Debra Katz is a founding partner of the firm. Their practices focus on employment discrimination, wrongful discharge, Sarbanes-Oxley and other whistleblower claims.