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Energy Reorganization Act (ERA)
Public Law 95-601, Nov 6, 1974
42 USC Section 5851
as amended by the Energy Policy Act of 2005, Public Law 109-58, August 8, 2005
§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 person acting pursuant to a request of
the employee)
(A) notified his employer of an alleged violation of this Act or
the Atomic Energy Act of l954 (42 U.S.C. 2011 et seq.);
(B) refused to engage in any practice made unlawful by this Act
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 Act 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 Act or the
Atomic Energy Act of 1954, as amended, or a proceeding for the
administration or enforcement of any requirement imposed under
this Act 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 Act 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) 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) 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) 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) has occurred only if the complainant has demonstrated that
any behavior described in subparagraphs (A) through (F) of
subsection (a)(1) 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.
(4) If the Secretary has not issued a final decision within 1 year after
the filing of a complaint under paragraph (1), and there is no showing that
such delay is due to the bad faith of the person seeking relief under this
paragraph, such person may bring an action at law or equity for de novo review
in the appropriate district court of the United States, which shall have
jurisdiction over such an action without regard to the amount in controversy.
(c) Review.
(1) Any person adversely affected or aggrieved by an order
issued under subsection (b) 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 of the United States Code [5 USCS
§§701 et seq.]. 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), 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) 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 of the United States Code.
(g) Deliberate violations. Subsection (a) 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 Act or of the Atomic
Energy Act of 1954, as amended.
(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.
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