U.S.C. § 5851.1 is a whistleblower retaliation protection law that protects energy workers who report or otherwise act upon safety concerns. This law specifically prohibits employers from discharging or otherwise discriminating against employees for several acts, including notifying an employer of a violation, initiating an enforcement proceeding, or testifying in a safety or enforcement proceeding. See 42 U.S.C. § 5851(a)(1)(A–E). The statute also includes a catch-all provision protecting employees “in any other action to carry out the purposes of this chapter . . . .” Id. at § 5851(a)(1)(F).
To make a claim for whistleblower retaliation under this Act, an employee must show that (1) he engaged in a protected activity; (2) the employer knew or suspected . . . that the employee engaged in the protected activity; (3) the employee suffered an adverse action, such as employment termination or another significant action; and (4) the circumstances were sufficient to suggest that the protected activity (i.e. complaining or participating an investigation) was a contributing factor in the adverse action.
Under this law, if an employee shows that his participation in protected activity was a contributing factor in the employer’s action against him, the burden in the case then shifts to the employer.” An employer can rebut the employee’s claims under the Act, if it introduces “clear and convincing evidence that it would have taken the same unfavorable action in the absence of the employee’s participation in such behavior.” The Ninth Circuit has held that this law serves a “broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality.” Mackowiak v. Univ. Nuclear Sys., Inc., (9th Cir. 1984).
The Eleventh Circuit has noted that a broad interpretation is “appropriate” because it “promotes the remedial purposes of the law and avoids the unwitting consequence of preemptive retaliation, which would allow the whistleblowers to be fired or otherwise discriminated against with impunity for internal complaints before they have a chance to bring them before an appropriate agency.” Bechtel Constr. Co. v. Sec’y of Labor (11th Cir. 1995). In Bechtel, an employee carpenter disagreed with his foreman about the safety procedures for measuring the amount of radioactive contamination of the carpentry tools. The carpenter raised his concerns initially with his foreman, and then with the foreman’s supervisor. The court held that the carpenter’s conduct qualified as protected activity, noting that he “did not merely make general inquiries regarding safety but, rather, he raised repeated concerns about safety procedures for handling contaminated tools. The court also noted that questioning one’s supervisor’s instructions on safety procedures is tantamount to a complaint. The Eleventh Circuit has also stated that Section 5851 does not protect every act that an employee commits in the name of safety, and that whistleblowing must occur through prescribed channels. Stone & Webster Eng’g Corp. v. Herman (11th Cir. 1997). In Stone & Webster, Harrison, an employee iron worker, was responsible for holding a weekly safety meeting. Iron workers had recently been assigned a new responsibility, ensuring fire safety. At the weekly safety meeting, the iron workers complained that this procedure was unsafe. Harrison, as foreman, raised the safety issue with the company’s fire marshal and also filed a complaint with the Nuclear Regulatory Commission. The Eleventh Circuit concluded, “If an employee talks about safety to a plant fire official, an employer and an industry regulator, he or she acts squarely within the zone of conduct that Congress marked out under 42 U.S.C. § 5851(a)(1).”
Like with some other anti-retaliation laws, the power of this whistleblower anti-retaliation protection from an employee’s perspective is twofold: (a) the employee doesn’t have to prove that his complaints were the only reason for an action against him, as long as it was one reason; and (b) the employer bears a heavy burden of disproving the claim by clear and convincing evidence, once an employee makes an initial showing that his claim his merit. In many cases, the employer will have a hard time to prove that they would have demoted or terminated an employee for whatever violation they accuse him of, even if he didn’t raise the underlying safety concern.