US Laws, Codes, Statutes & Cases

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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 42USC5851]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                CHAPTER 73--DEVELOPMENT OF ENERGY SOURCES
 
  SUBCHAPTER II--NUCLEAR REGULATORY COMMISSION; NUCLEAR WHISTLEBLOWER 
                               PROTECTION
 
Sec. 5851. Employee protection


(a) Discrimination against employee

    (1) No employer may discharge any employee or otherwise discriminate 
against any employee with respect to his compensation, terms, 
conditions, or privileges of employment because the employee (or any 
person acting pursuant to a request of the employee)--
        (A) notified his employer of an alleged violation of this 
    chapter or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);
        (B) refused to engage in any practice made unlawful by this 
    chapter or the Atomic Energy Act of 1954, if the employee has 
    identified the alleged illegality to the employer;
        (C) testified before Congress or at any Federal or State 
    proceeding regarding any provision (or proposed provision) of this 
    chapter or the Atomic Energy Act of 1954;
        (D) commenced, caused to be commenced, or is about to commence 
    or cause to be commenced a proceeding under this chapter or the 
    Atomic Energy Act of 1954, as amended, or a proceeding for the 
    administration or enforcement of any requirement imposed under this 
    chapter or the Atomic Energy Act of 1954, as amended;
        (E) testified or is about to testify in any such proceeding or;
        (F) assisted or participated or is about to assist or 
    participate in any manner in such a proceeding or in any other 
    manner in such a proceeding or in any other action to carry out the 
    purposes of this chapter or the Atomic Energy Act of 1954, as 
    amended.

    (2) For purposes of this section, the term ``employer'' includes--
        (A) a licensee of the Commission or of an agreement State under 
    section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021);
        (B) an applicant for a license from the Commission or such an 
    agreement State;
        (C) a contractor or subcontractor of such a licensee or 
    applicant; and
        (D) a contractor or subcontractor of the Department of Energy 
    that is indemnified by the Department under section 170 d. of the 
    Atomic Energy Act of 1954 (42 U.S.C. 2210(d)), but such term shall 
    not include any contractor or subcontractor covered by Executive 
    Order No. 12344.

(b) Complaint, filing and notification

    (1) Any employee who believes that he has been discharged or 
otherwise discriminated against by any person in violation of subsection 
(a) of this section may, within 180 days after such violation occurs, 
file (or have any person file on his behalf) a complaint with the 
Secretary of Labor (in this section referred to as the ``Secretary'') 
alleging such discharge or discrimination. Upon receipt of such a 
complaint, the Secretary shall notify the person named in the complaint 
of the filing of the complaint, the Commission, and the Department of 
Energy.
    (2)(A) Upon receipt of a complaint filed under paragraph (1), the 
Secretary shall conduct an investigation of the violation alleged in the 
complaint. Within thirty days of the receipt of such complaint, the 
Secretary shall complete such investigation and shall notify in writing 
the complainant (and any person acting in his behalf) and the person 
alleged to have committed such violation of the results of the 
investigation conducted pursuant to this subparagraph. Within ninety 
days of the receipt of such complaint the Secretary shall, unless the 
proceeding on the complaint is terminated by the Secretary on the basis 
of a settlement entered into by the Secretary and the person alleged to 
have committed such violation, issue an order either providing the 
relief prescribed by subparagraph (B) or denying the complaint. An order 
of the Secretary shall be made on the record after notice and 
opportunity for public hearing. Upon the conclusion of such hearing and 
the issuance of a recommended decision that the complaint has merit, the 
Secretary shall issue a preliminary order providing the relief 
prescribed in subparagraph (B), but may not order compensatory damages 
pending a final order. The Secretary may not enter into a settlement 
terminating a proceeding on a complaint without the participation and 
consent of the complainant.
    (B) If, in response to a complaint filed under paragraph (1), the 
Secretary determines that a violation of subsection (a) of this section 
has occurred, the Secretary shall order the person who committed such 
violation to (i) take affirmative action to abate the violation, and 
(ii) reinstate the complainant to his former position together with the 
compensation (including back pay), terms, conditions, and privileges of 
his employment, and the Secretary may order such person to provide 
compensatory damages to the complainant. If an order is issued under 
this paragraph, the Secretary, at the request of the complainant shall 
assess against the person against whom the order is issued a sum equal 
to the aggregate amount of all costs and expenses (including attorneys' 
and expert witness fees) reasonably incurred, as determined by the 
Secretary, by the complainant for, or in connection with, the bringing 
of the complaint upon which the order was issued.
    (3)(A) The Secretary shall dismiss a complaint filed under paragraph 
(1), and shall not conduct the investigation required under paragraph 
(2), unless the complainant has made a prima facie showing that any 
behavior described in subparagraphs (A) through (F) of subsection (a)(1) 
of this section was a contributing factor in the unfavorable personnel 
action alleged in the complaint.
    (B) Notwithstanding a finding by the Secretary that the complainant 
has made the showing required by subparagraph (A), no investigation 
required under paragraph (2) shall be conducted if the employer 
demonstrates, by clear and convincing evidence, that it would have taken 
the same unfavorable personnel action in the absence of such behavior.
    (C) The Secretary may determine that a violation of subsection (a) 
of this section has occurred only if the complainant has demonstrated 
that any behavior described in subparagraphs (A) through (F) of 
subsection (a)(1) of this section was a contributing factor in the 
unfavorable personnel action alleged in the complaint.
    (D) Relief may not be ordered under paragraph (2) if the employer 
demonstrates by clear and convincing evidence that it would have taken 
the same unfavorable personnel action in the absence of such behavior.

(c) Review

    (1) Any person adversely affected or aggrieved by an order issued 
under subsection (b) of this section may obtain review of the order in 
the United States court of appeals for the circuit in which the 
violation, with respect to which the order was issued, allegedly 
occurred. The petition for review must be filed within sixty days from 
the issuance of the Secretary's order. Review shall conform to chapter 7 
of title 5. The commencement of proceedings under this subparagraph 
shall not, unless ordered by the court, operate as a stay of the 
Secretary's order.
    (2) An order of the Secretary with respect to which review could 
have been obtained under paragraph (1) shall not be subject to judicial 
review in any criminal or other civil proceeding.

(d) Jurisdiction

    Whenever a person has failed to comply with an order issued under 
subsection (b)(2) of this section, the Secretary may file a civil action 
in the United States district court for the district in which the 
violation was found to occur to enforce such order. In actions brought 
under this subsection, the district courts shall have jurisdiction to 
grant all appropriate relief including, but not limited to, injunctive 
relief, compensatory, and exemplary damages.

(e) Commencement of action

    (1) Any person on whose behalf an order was issued under paragraph 
(2) of subsection (b) of this section may commence a civil action 
against the person to whom such order was issued to require compliance 
with such order. The appropriate United States district court shall have 
jurisdiction, without regard to the amount in controversy or the 
citizenship of the parties, to enforce such order.
    (2) The court, in issuing any final order under this subsection, may 
award costs of litigation (including reasonable attorney and expert 
witness fees) to any party whenever the court determines such award is 
appropriate.

(f) Enforcement

    Any nondiscretionary duty imposed by this section shall be 
enforceable in a mandamus proceeding brought under section 1361 of title 
28.

(g) Deliberate violations

    Subsection (a) of this section shall not apply with respect to any 
employee who, acting without direction from his or her employer (or the 
employer's agent), deliberately causes a violation of any requirement of 
this chapter or of the Atomic Energy Act of 1954, as amended [42 U.S.C. 
2011 et seq.].

(h) Nonpreemption

    This section may not be construed to expand, diminish, or otherwise 
affect any right otherwise available to an employee under Federal or 
State law to redress the employee's discharge or other discriminatory 
action taken by the employer against the employee.

(i) Posting requirement

    The provisions of this section shall be prominently posted in any 
place of employment to which this section applies.

(j) Investigation of allegations

    (1) The Commission or the Department of Energy shall not delay 
taking appropriate action with respect to an allegation of a substantial 
safety hazard on the basis of--
        (A) the filing of a complaint under subsection (b)(1) of this 
    section arising from such allegation; or
        (B) any investigation by the Secretary, or other action, under 
    this section in response to such complaint.

    (2) A determination by the Secretary under this section that a 
violation of subsection (a) of this section has not occurred shall not 
be considered by the Commission or the Department of Energy in its 
determination of whether a substantial safety hazard exists.

(Pub. L. 93-438, title II, Sec. 211, formerly Sec. 210, as added Pub. L. 
95-601, Sec. 10, Nov. 6, 1978, 92 Stat. 2951; renumbered Sec. 211 and 
amended Pub. L. 102-486, title XXIX, Sec. 2902(a)-(g), (h)(2), (3), Oct. 
24, 1992, 106 Stat. 3123, 3124.)

                       References in Text

    The Atomic Energy Act of 1954, referred to in subsecs. (a)(1) and 
(g), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 
1073, Sec. 1, 68 Stat. 921, and amended, which is classified generally 
to chapter 23 (Sec. 2011 et seq.) of Title 42, The Public Health and 
Welfare. For complete classification on this Act to the Code, see Short 
Title note set out under section 2011 of Title 42 and Tables.
    Executive Order No. 12344, referred to in subsec. (a)(2)(D), is Ex. 
Ord. No. 12344, Feb. 1, 1982, 47 F.R. 4979, which is set out as a note 
under section 7158 of this title.


                               Amendments

    1992--Subsec. (a). Pub. L. 102-486, Sec. 2902(a), designated 
existing provisions as par. (1) and struck out ``, including a 
Commission licensee, an applicant for a Commission license, or a 
contractor or a subcontractor of a Commission licensee or applicant,'' 
after ``No employer'', added subpars. (A) to (C), redesignated former 
pars. (1) to (3) as subpars. (D) to (F), respectively, and added par. 
(2).
    Subsec. (b)(1). Pub. L. 102-486, Sec. 2902(b), (h)(2), substituted 
``180'' for ``thirty'', ``(in this section referred to as the 
`Secretary')'' for ``(hereinafter in this subsection referred to as the 
`Secretary')'', and ``, the Commission, and the Department of Energy'' 
for ``and the Commission''.
    Subsec. (b)(2)(A). Pub. L. 102-486, Sec. 2902(c), inserted before 
last sentence ``Upon the conclusion of such hearing and the issuance of 
a recommended decision that the complaint has merit, the Secretary shall 
issue a preliminary order providing the relief prescribed in 
subparagraph (B), but may not order compensatory damages pending a final 
order.''
    Subsec. (b)(3). Pub. L. 102-486, Sec. 2902(d), added par. (3).
    Subsecs. (h) to (j). Pub. L. 102-486, Sec. 2902(e)-(g), added 
subsecs. (h) to (j).


                    Effective Date of 1992 Amendment

    Section 2902(i) of Pub. L. 102-486 provided that: ``The amendments 
made by this section [amending this section] shall apply to claims filed 
under section 211(b)(1) of the Energy Reorganization Act of 1974 (42 
U.S.C. 5851(b)(1)) on or after the date of the enactment of this Act 
[Oct. 24, 1992].''

                          Transfer of Functions

    For transfer of certain functions from Nuclear Regulatory Commission 
to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561, 94 
Stat. 3585, set out as a note under section 5841 of this title.

                  Section Referred to in Other Sections

    This section is referred to in section 2297h-13 of this title.