Update: Representative Frank Pallone (D-NJ), Ranking Member of the House Committee on Energy and Commerce, sent a letter to the White House Counsel requesting clarification on the stay. Representative Pallone's letter conveyed how important whistleblowers are to maintaining effective oversight. "Over the years, the House Committee on Energy and Commerce has relied upon important information obtained by whistleblowers to highlight both fraud and abuse related to federal spending and unsafe activities pertaining to the energy sector that could harm workers and the environment," he wrote. He requested Donald McGahn, White House Counsel, answer several questions regarding the potential impact of staying this whistleblower regulation.
As Joe Davidson at The Washington Post first reported, the Department of Energy (DOE) has issued a stay on the implementation of a rule that would have allowed the Department to impose civil penalties against contractors who retaliate against whistleblowers.
The stay is the result of President Trump’s freeze on all regulations, and is an excellent example of why a total freeze on regulations could ultimately be harmful to taxpayers and undermine public safety.
The rule was the result of a 2016 Government Accountability Office (GAO) report, which found that the DOE’s handling of whistleblower retaliation claims didn’t go far enough. Specifically the GAO reported that the DOE’s nuclear department rarely held its private contractors accountable when it found contractors had retaliated against whistleblowers who raised legitimate concerns about safety, fraud, and waste—issuing only two violation notices in the past 20 years. The DOE employs more contractors than any other agency, and the vast majority of its workforce are contract employees.
In response to the GAO report, Senator Ed Markey (D-MA) stated: “DOE must hold its contractors accountable for engaging in retaliation and harassment and reform this dangerous culture of disregard for the law.”
“It’s time to end the ‘war on whistleblowers’ at the Energy Department,” Senator Ron Wyden (D-OR) added.
Astoundingly, the GAO also found that the DOE needed clarification about its own authority. “DOE determined that it does not have the authority to enforce a key aspect of policies that prohibit retaliation for nuclear safety-related issues—despite having taken such enforcement actions previously.”
Following pressure from several Senators, the Department attempted to improve the rules in place to deal with whistleblower retaliation. The resulting regulation clarified that the Department may use civil penalties when contractors and subcontractors retaliate against whistleblowers who raise concerns about violations of nuclear safety requirements. The new rule wouldn’t have altered existing procedures and the Department stated that is was consistent with the original intent of existing rules. Instead, it was a very specific addition to those rules, narrowly focused on violations of DOE nuclear safety requirements. These requirements describe the specific parameters for the safe operation of a nuclear facility, and include things like surveillance requirements, management controls, and design features.
Some public comments argued that making the rule apply only to nuclear safety violations didn’t go far enough to address the Department’s retaliation problems. For example, some safety violations at nuclear sites, like fall hazards, would not technically fall into the narrowly defined nuclear safety violations.
The Washington, DC-based law firm Hogan Lovells, which advises industry on nuclear safety and whistleblower issues, pushed back against the GAO’s findings in its public comment. The firm stated that “alleged whistleblowers” have a variety of ways to achieve relief from retaliatory contractors and that “a lack of enforcement against DOE contractors is not a sign of DOE inattentiveness, as has been suggested. To the contrary, many DOE contractors, subcontractors, and suppliers have implemented safety conscious work environment policies and programs to ensure freedom for employees to raise concerns...in cases where no retaliation claim is brought, the DOE should employ a presumption of no retaliation.” (Emphasis in original)
Whistleblowers are the first and best line of defense against significant problems on federal projects and must be protected from retribution for the act of reporting wrongdoing. Making it easier for the DOE to impose penalties on contractors that retaliate against whistleblowers raising safety concerns seems like a common-sense rule. Regulations can help the government run more smoothly and protect taxpayers and federal employees. We hope the administration lifts the hold on this regulation or further strengthens other channels for whistleblower relief as soon as possible.