DEPARTMENT OF ENERGY
Criteria and Procedures for DOE Contractor Employee Protection Program
Title 10 of the Code of Federal Regulations
PART 708 -- DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM
Subpart A -- General Provisions
Sec. 708.1--What is the purpose of this regulation?
Sec. 708.2--What are the definitions of terms used in
this regulation?
Sec. 708.3--What employee complaints are covered?
Sec. 708.4--What employee complaints are not covered?
Sec. 708.5--What employee conduct is protected from
retaliation by an employer?
Sec. 708.6--What constitutes "a reasonable fear of
serious injury?"
Sec. 708.7--What must an employee do before filing a
complaint based on a retaliation for refusal to participate?
Sec. 708.8--Does this regulation apply to pending
cases?
Sec. 708.9--When is a complaint or other document
considered to be "filed" under this regulation?
Subpart B -- Employee Complaint Resolution Process
Sec. 708.10--Where does an employee file a complaint?
Sec. 708.11--Will an employees identity be kept
confidential if the employee so requests?
Sec. 708.12--What information must an employee include
in a complaint?
Sec. 708.13--What must an employee do to show that all
grievance-arbitration procedures have been exhausted?
Sec. 708.14--How much time does an employee have to
file a complaint?
Sec. 708.15--What happens if an employee files a
complaint under this regulation and also pursues a remedy under State or other
law?
Sec. 708.16--Will a contractor or a labor organization
that represents an employee be notified of an employees complaint and be
given an opportunity to respond with information?
Sec. 708.17--When may DOE dismiss a complaint for lack
of jurisdiction or other good cause?
Sec. 708.18--How can an employee appeal dismissal of a
complaint for lack of jurisdiction or other good cause?
Sec. 708.19--How can a party obtain review by the
Secretary of Energy of a decision on appeal of a dismissal?
Sec. 708.20--Will DOE encourage the parties to resolve
the complaint informally?
Subpart C -- Investigation, Hearing and Decision Process
Sec. 708.21--What are the employees options if
the complaint cannot be resolved informally?
Sec. 708.22--What process does the Office of Hearings
and Appeals use to conduct an investigation of the complaint?
Sec. 708.23--How does the Office of Hearings and
Appeals issue a report of investigation?
Sec. 708.24--Will there always be a hearing after
issuance of a report of investigation?
Sec. 708.25--Who will conduct the hearing?
Sec. 708.26--When and where will the hearing be held?
Sec. 708.27--May the Hearing Officer recommend
mediation to the parties?
Sec. 708.28--What procedures govern a hearing
conducted by the Office of Hearings and Appeals?
Sec. 708.29--What must the parties to a complaint
prove?
Sec. 708.30--What process does the Hearing Officer
follow to issue an initial agency decision?
Sec. 708.31--If no hearing is conducted, what is the
process for issuing an initial agency decision?
Sec. 708.32--Can a dissatisfied party appeal an
initial agency decision?
Sec. 708.33--What is the procedure for an appeal?
Sec. 708.34--What is the process for issuing an appeal
decision?
Sec. 708.35--How can a party obtain review by the
Secretary of Energy of an appeal decision?
Sec. 708.36--What remedies for retaliation may be
ordered in initial and final agency decisions?
Sec. 708.37--Will an employee whose complaint is
denied by a final agency decision be reimbursed for costs and expenses incurred
in pursuing the complaint?
Sec. 708.38--How is a final agency decision
implemented?
Sec. 708.39--Is a decision and order implemented under
this regulation considered a claim by the government against a contractor or a
"decision by the contracting officer" under sections 6 and 7 of the
Contract Disputes Act?
Sec. 708.40--Are contractors required to inform their
employees about this program?
Sec. 708.41--Will DOE ever refer a complaint filed
under this part to another agency for investigation and a decision?
Sec. 708.42--May the deadlines established by this
part be extended by any DOE official?
Sec. 708.43--Does this rule impose an affirmative duty
on DOE contractors not to retaliate?
Authority: 42 U.S.C. 2201(b), 2201(c), 2201(i), and 2201(p); 42 U.S.C. 5814
and 5815; 42 U.S.C. 7251, 7254 7255, and 7256; and 5 U.S.C. Appendix 3.
Subpart A -- General Provisions
708.1 What is the purpose of this regulation?
This regulation provides procedures for processing complaints by employees
of DOE contractors alleging retaliation by their employers for disclosure of
information concerning danger to public or worker health or safety, substantial
violations of law, or gross mismanagement; for participation in Congressional
proceedings; or for refusal to participate in dangerous activities.
708.2 What are the definitions of terms used in this regulation?
For purposes of this regulation:
Contractor means a seller of goods or services who is a party to:
(1) A management and operating contract or other type of contract with DOE
to perform work directly related to activities at DOE-owned or -leased
facilities, or
(2) A subcontract under a contract of the type described in paragraph (1) of
this definition, but only with respect to work related to activities at
DOE-owned or -leased facilities.
Day means a calendar day.
Discovery means a process used to enable the parties to learn about
each others evidence before a hearing takes place, including oral
depositions, written interrogatories, requests for admissions, inspection of
property and requests for production of documents.
DOE Official means any officer or employee of DOE whose duties
include program management or the investigation or enforcement of any law,
rule, or regulation relating to Government contractors or the subject matter of
a contract.
EC Director means the Director of the Office of Employee Concerns at
DOE Headquarters, or any official to whom the Director delegates his or her
functions under this regulation.
Employee means a person employed by a contractor, and any person
previously employed by a contractor if that persons complaint alleges
that employment was terminated for conduct described in § 708.5 of this
subpart.
Field element means a DOE field-based office that is responsible for
the management, coordination, and administration of operations at a DOE
facility.
Head of Field Element means the manager or head of a DOE operations
office or field office, or any official to whom those individuals delegate
their functions under this regulation.
Hearing Officer means an individual appointed by the OHA Director to
conduct a hearing on a complaint filed under this regulation.
Management and operating contract means an agreement under which DOE
contracts for the operation, maintenance, or support of a Government-owned or
-leased research, development, special production, or testing establishment
that is wholly or principally devoted to one or more of the programs of DOE.
Mediation means an informal, confidential process in which a neutral
third person assists the parties in reaching a mutually acceptable resolution
of their dispute; the neutral third person does not render a decision.
OHA Director means the Director of the Office of Hearings and
Appeals, or any official to whom the Director delegates his or her functions
under this regulation.
Party means an employee, contractor, or other party named in a
proceeding under this regulation.
Retaliation means an action (including intimidation, threats,
restraint, coercion or similar action) taken by a contractor against an
employee with respect to employment (e.g., discharge, demotion, or other
negative action with respect to the employee's compensation, terms, conditions
or privileges of employment) as a result of the employee=s disclosure of
information, participation in proceedings, or refusal to participate in
activities described in § 708.5 of this subpart.
You means the employee who files a complaint under this regulation,
or the complainant.
708.3 What employee complaints are covered?
This regulation applies to a complaint of retaliation filed by an employee
of a contractor that performs work on behalf of DOE, directly related to
activities at a DOE-owned or -leased site, if the complaint stems from a
disclosure, participation, or refusal described in § 708.5.
708.4 What employee complaints are not covered?
If you are an employee of a contractor, you may not file a complaint against
your employer under this part if:
(a) The complaint is based on race, color, religion, sex, age, national
origin, or other similar basis; or
(b) The complaint involves misconduct that you, acting without direction
from your employer, deliberately caused, or in which you knowingly
participated; or
(c) Except as provided in § 708.15(a), the complaint is based on the
same facts for which you have chosen to pursue a remedy available under:
(1) Department of Labor regulations at 29 CFR part 24, Procedures for
the Handling of Discrimination Complaints under Federal Employee Protection
Statutes;"
(2) Federal Acquisition Regulations, 48 CFR part 3, "Federal
Acquisition Regulation; Whistleblower Protection for Contractor Employees
(Ethics);" or
(3) State or other applicable law, including final and binding
grievance-arbitration, as described in § 708.15 of Subpart B; or
(d) The complaint is based on the same facts in which you, in the course of
a covered disclosure or participation, improperly disclosed Restricted Data,
national security information, or any other classified or sensitive information
in violation of any Executive Order, statute, or regulation. This regulation
does not override any provision or requirement of any regulation pertaining to
Restricted Data, national security information, or any other classified or
sensitive information; or
(e) The complaint deals with terms and conditions of employment
within the meaning of the National Labor Relations Act, except as provided in
§ 708.5.
708.5 What employee conduct is protected from retaliation by an
employer?
If you are an employee of a contractor, you may file a complaint against
your employer alleging that you have been subject to retaliation for:
(a) Disclosing to a DOE official, a member of Congress, any other government
official who has responsibility for the oversight of the conduct of operations
at a DOE site, your employer, or any higher tier contractor, information that
you reasonably believe reveals--
(1) A substantial violation of a law, rule, or regulation;
(2) A substantial and specific danger to employees or to public health or
safety; or
(3) Fraud, gross mismanagement, gross waste of funds, or abuse of authority;
or
(b) Participating in a Congressional proceeding or an administrative
proceeding conducted under this regulation; or
(c) Subject to § 708.7 of this subpart, refusing to participate in an
activity, policy, or practice if you believe participation would --
(1) Constitute a violation of a federal health or safety law; or
(2) Cause you to have a reasonable fear of serious injury to yourself, other
employees, or members of the public.
708.6 What constitutes "a reasonable fear of serious
injury?"
Participation in an activity, policy, or practice may cause an employee to
have a reasonable fear of serious injury that justifies a refusal to
participate if:
(a) A reasonable person, under the circumstances that confronted the
employee, would conclude there is a substantial risk of a serious accident,
injury, or impairment of health or safety resulting from participation in the
activity, policy, or practice; or
(b) An employee, because of the nature of his or her employment
responsibilities, does not have the training or skills needed to participate
safely in the activity or practice.
708.7 What must an employee do before filing a complaint based on
retaliation for refusal to participate?
You may file a complaint for retaliation for refusing to participate in an
activity, policy, or practice only if:
(a) Before refusing to participate in the activity, policy, or practice, you
asked your employer to correct the violation or remove the danger, and your
employer refused to take such action; and
(b) By the 30th day after you refused to participate, you reported the
violation or dangerous activity, policy, or practice to a DOE official, a
member of Congress, another government official with responsibility for the
oversight of the conduct of operations at the DOE site, your employer, or any
higher tier contractor, and stated your reasons for refusing to participate.
708.8 Does this regulation apply to pending cases?
The procedures in this regulation apply prospectively in any complaint
proceeding pending on the effective date of this regulation.
708.9 When is a complaint or other document considered to be
"filed" under this regulation?
Under this regulation, a complaint or other document is considered
"filed" on the date it is mailed or on the date it is personally
delivered to the specified official or office.
Subpart B -- Employee Complaint Resolution Process
708.10 Where does an employee file a complaint?
(a) If you were employed by a contractor whose contract is handled by a
contracting officer located in DOE Headquarters when the alleged retaliation
occurred, you must file two copies of your written complaint with the EC
Director.
(b) If you were employed by a contractor at a DOE field facility or site
when the alleged retaliation occurred, you must file two copies of your written
complaint with the Head of Field Element at the DOE field element with
jurisdiction over the contract.
708.11 Will an employees identity be kept confidential if the
employee so requests?
No. The identity of an employee who files a complaint under this regulation
appears on the complaint. A copy of the complaint is provided to the contractor
and it becomes a public document.
708.12 What information must an employee include in a
complaint?
Your complaint does not need to be in any specific form but must be signed
by you and contain the following:
(a) A statement specifically describing
(1) the alleged retaliation taken against you and
(2) the disclosure, participation, or refusal that you believe gave rise to
the retaliation;
(b) A statement that you are not currently pursuing a remedy under State or
other applicable law, as described in § 708.15 of this subpart;
(c) A statement that all of the facts that you have included in your
complaint are true and correct to the best of your knowledge and belief; and
(d) An affirmation, as described in § 708.13 of this subpart, that you
have exhausted (completed) all applicable grievance or arbitration procedures.
708.13 What must an employee do to show that all grievance-arbitration
procedures have been exhausted?
(a) To show that you have exhausted all applicable grievance-arbitration
procedures, you must:
(1) State that all available opportunities for resolution through an
applicable grievance-arbitration procedure have been exhausted, and provide the
date on which the grievance-arbitration procedure was terminated and the
reasons for termination; or
(2) State that you filed a grievance under applicable grievance-arbitration
procedures, but more than 150 days have passed and a final decision on it has
not been issued, and provide the date that you filed your grievance; or
(3) State that your employer has established no grievance-arbitration
procedures.
(b) If you do not provide the information specified in § 708.13(a),
your complaint may be dismissed for lack of jurisdiction as provided in §
708.17 of this subpart.
708.14 How much time does an employee have to file a complaint?
(a) You must file your complaint by the 90th day after the date you knew, or
reasonably should have known, of the alleged retaliation.
(b) The period for filing a complaint does not include time spent attempting
to resolve the dispute through an internal company grievance-arbitration
procedure. The time period for filing stops running on the day the internal
grievance is filed and begins to run again on the earlier of:
(1) The day after such dispute resolution efforts end; or
(2) 150 days after the internal grievance was filed if a final decision on
the grievance has not been issued.
(c) The period for filing a complaint does not include time spent resolving
jurisdictional issues related to a complaint you file under State or other
applicable law. The time period for filing stops running on the date the
complaint under State or other applicable law is filed and begins to run again
the day after a final decision on the jurisdictional issues is issued.
(d) If you do not file your complaint during the 90-day period, the Head of
Field Element or EC Director (as applicable) will give you an opportunity to
show any good reason you may have for not filing within that period, and that
official may, in his or her discretion, accept your complaint for processing.
708.15 What happens if an employee files a complaint under this part and
also pursues a remedy under State or other law?
(a) You may not file a complaint under this regulation if, with respect to
the same facts, you choose to pursue a remedy under State or other applicable
law, including final and binding grievance-arbitration procedures, unless:
(1) Your complaint under State or other applicable law is dismissed for lack
of jurisdiction;
(2) Your complaint was filed under 48 CFR Part 3, Subpart 3.9 and the
Inspector General, after conducting an initial inquiry, determines not to
pursue it; or
(3) You have exhausted grievance-arbitration procedures pursuant to §
708.13, and issues related to alleged retaliation for conduct protected under
§ 708.5 remain.
(b) Pursuing a remedy other than final and binding grievance-arbitration
procedures does not prevent you from filing a complaint under this regulation.
(c) You are considered to have filed a complaint under State or other
applicable law if you file a complaint, or other pleading, with respect to the
same facts in a proceeding established or mandated by State or other applicable
law, whether you file such complaint before, concurrently with, or after you
file a complaint under this regulation.
(d) If you file a complaint under State or other applicable law after filing
a complaint under this part, your complaint under this regulation will be
dismissed under Sec. 708.17(c)(3).
708.16 Will a contractor or a labor organization that represents an
employee be notified of an employees complaint and be given an
opportunity to respond with information?
(a) By the 15th day after receiving your complaint, the Head of Field
Element or EC Director (as applicable) will provide your employer a copy of
your complaint. Your employer has 10 days from receipt of your complaint to
submit any comments it wishes to make regarding the allegations in the
complaint.
(b) If you are part of a bargaining unit represented for purposes of
collective bargaining by a labor organization, the Head of Field Element or EC
Director (as applicable) will provide your representative a copy of your
complaint by the 15th day after receiving it. The labor organization will be
advised that it has 10 days from the receipt of your complaint to submit any
comments it wishes to make regarding the allegations in the complaint.
708.17 When may DOE dismiss a complaint for lack of jurisdiction or other
good cause?
(a) The Head of Field Element or EC Director (as applicable) may dismiss
your complaint for
lack of jurisdiction or for other good cause after receiving your complaint,
either on his or her own initiative or at the request of a party named in your
complaint. Such decisions are generally issued by the 15th day after the
receipt of your employers comments.
(b) The Head of Field Element or EC Director (as applicable) will notify you
by certified mail, return receipt requested, if your complaint is dismissed for
lack of jurisdiction or other good cause, and give you specific reasons for the
dismissal, and will notify other parties of the dismissal.
(c) Dismissal for lack of jurisdiction or other good cause is appropriate
if:
(1) Your complaint is untimely; or
(2) The facts, as alleged in your complaint, do not present issues for which
relief can be granted under this regulation; or
(3) You filed a complaint under State or other applicable law with respect
to the same facts as alleged in a complaint under this regulation; or
(4) Your complaint is frivolous or without merit on its face; or
(5) The issues presented in your complaint have been rendered moot by
subsequent events or substantially resolved; or
(6) Your employer has made a formal offer to provide the remedy that you
request in your complaint or a remedy that DOE considers to be equivalent to
what could be provided as a remedy under this regulation.
708.18 How can an employee appeal dismissal of a complaint for lack of
jurisdiction or other good cause?
(a) If your complaint is dismissed by the Head of Field Element or EC
Director, the administrative process is terminated unless you appeal the
dismissal to the OHA Director by the 10th day after you receive the notice of
dismissal as evidenced by a receipt for delivery of certified mail.
(b) If you appeal a dismissal to the OHA Director, you must send copies of
your appeal to the Head of Field Element or EC Director (as applicable) and all
parties. Your appeal must include a copy of the notice of dismissal, and state
the reasons why you think the dismissal was erroneous.
(c) The OHA Director will issue a decision on your appeal and notify the
parties of the decision by the 30th day after it is received.
(d) The OHA Directors decision, either upholding the dismissal by the
Head of Field Element or EC Director or ordering further processing of your
complaint, is the final decision on your appeal, unless a party files a
petition for Secretarial review by the 30th day after receiving the appeal
decision.
708.19 How can a party obtain review by the Secretary of Energy of a
decision on appeal of a dismissal?
(a) By the 30th day after receiving a decision on an appeal under §
708.18 from the OHA Director, any party may file a petition for Secretarial
review of a dismissal with the Office of Hearings and Appeals.
(b) By the 15th day after filing the petition for Secretarial review, a
party must file a statement setting forth the arguments in support of its
position. A copy of the statement must be served on the other parties, who may
file a response by the 20th day after receipt of the statement. Any response
must also be served on the other parties.
(c) All submissions permitted under this section must be filed with the
Office of Hearings and Appeals.
(d) After a petition for Secretarial review is filed, the Secretary (or his
or her delegee) will issue the final agency decision on jurisdiction over the
complaint. The Secretary will reverse or revise an appeal decision by the OHA
Director only under extraordinary circumstances. In the event he or she
determines that a revision in the appeal decision is appropriate, the Secretary
will direct the OHA Director to issue an order either upholding the dismissal
by the Head of Field Element or EC Director or ordering further processing of
your complaint.
708.20 Will DOE encourage the parties to resolve the complaint
informally?
(a) Yes. The Head of Field Element or EC Director (as applicable) may
recommend that the parties attempt to resolve the complaint informally, for
example, through mediation.
(b) The period for attempting informal resolution of the complaint may not
exceed 30 days from the date you filed your complaint, unless the parties agree
to extend the time.
(c) The 30-day period permitted for informal resolution of the complaint
stops running when a request to dismiss your complaint on jurisdictional
grounds is filed with the Head of Field Element or EC Director, and begins to
run again on the date the OHA Director returns the complaint to the Head of
Field Element or EC Director for further processing.
(d) If the parties resolve the complaint informally, the Head of Field
Element or EC Director (as applicable) must be given a copy of the settlement
agreement or a written statement from you withdrawing the complaint.
Subpart C -- Investigation, Hearing and Decision Process
708.21 What are the employees options if the complaint cannot be
resolved informally?
(a) If the attempt at informal resolution is not successful, the Head of
Field Element or EC Director (as applicable) will notify you in writing that
you have the following options:
(1) Request that your complaint be referred to the Office of Hearings and
Appeals for a hearing without an investigation; or
(2) Request that your complaint be referred to the Office of Hearings and
Appeals for an investigation followed by a hearing.
(b) You must notify the Head of Field Element or EC Director
(as applicable), in writing, by the 20th day after receiving notice of your
options, whether you request referral of your complaint to the Office of
Hearings and Appeals for a hearing without an investigation, or an
investigation followed by a hearing.
(c) If the Head of Field Element or EC Director does not receive your
response to the notice of options by the 20th day after your receipt of that
notice, DOE will consider your complaint withdrawn.
(d) If you timely request referral to the Office of Hearings and Appeals,
the Head of Field Element or EC Director (as applicable) will forward your
complaint to the OHA Director by the 5th day after receipt of your request.
(e) The Head of the Field Element or EC Director (as applicable) will notify
all parties that the complaint has been referred to the Office of Hearings and
Appeals, and state whether you have requested a hearing without an
investigation or requested an investigation followed by a hearing.
708.22 What process does the Office of Hearings and Appeals use to
conduct an investigation of the complaint?
(a) If you request a hearing without an investigation, the OHA Director will
not initiate an investigation even if another party requests one.
(b) If you request an investigation followed by a hearing, the OHA Director
will appoint a person from the Office of Hearings and Appeals to conduct the
investigation. The investigator may not participate or advise in the initial or
final agency decision on your complaint.
(c) The investigator will determine the appropriate scope of investigation
based on the circumstances of the complaint. The investigator may enter and
inspect places and records; make copies of records; interview persons alleged
to have been involved in retaliation and other employees of the charged
contractor who may have relevant information; take sworn statements; and
require the production of any documents or other evidence.
(d) A contractor must cooperate fully with the investigator by making
employees and all pertinent evidence available upon request.
(e) A person being interviewed in an investigation has the right to be
represented by a person of his or her choosing.
(f) Parties to the complaint are not entitled to be present at interviews
conducted by an investigator.
(g) If a person other than the complainant requests that his or her identity
be kept confidential, the investigator may grant confidentiality, but must
advise such person that confidentiality means that the Office of Hearings and
Appeals will not identify the person as a source of information to anyone
outside the Office of Hearings and Appeals, except as required by statute or
other law, or as determined by the OHA Director to be unavoidable.
708.23 How does the Office of Hearings and Appeals issue a report of
investigation?
(a) The investigator will complete the investigation and issue a report of
investigation by the 60th day after the complaint is received by the Office of
Hearings and Appeals, unless the OHA Director, for good cause, extends the
investigation for no more than 30 days.
(b) The investigator will provide copies of the report of investigation to
the parties. The investigation will not be reopened after the report of
investigation is issued.
(c) If the parties informally resolve the complaint (e.g., through
mediation) after an investigation is started, you must notify the OHA Director
in writing of your decision to withdraw the complaint.
708.24 Will there always be a hearing after a report of investigation is
issued?
(a) No. An employee may withdraw a hearing request after the report of
investigation is issued. However, the hearing may be canceled only if all
parties agree that they do not want a hearing.
(b) If the hearing is canceled, the Hearing Officer will issue an initial
agency decision pursuant to § 708.31 of this subpart.
708.25 Who will conduct the hearing?
(a) The OHA Director will appoint a Hearing Officer from the Office of
Hearings and Appeals to conduct a hearing.
(b) The Hearing Officer may not be subject to the supervision or direction
of the investigator.
708.26 When and where will the hearing be held?
(a) The Hearing Officer will schedule a hearing to be held by the 90th day
after receipt of the complaint, or issuance of the report of investigation,
whichever is later. Any extension of the hearing date must be approved by the
OHA Director.
(b) The Hearing Officer will schedule the hearing for a location near the
site where the alleged retaliation occurred or your place of employment, or at
another location that is appropriate considering the circumstances of a
particular case.
708.27 May the Hearing Officer recommend mediation to the parties?
The Hearing Officer may recommend, but may not require, that the parties
attempt to resolve the complaint through mediation or other informal means at
any time before issuance of an initial agency decision on the complaint.
708.28 What procedures govern a hearing conducted by the Office of
Hearings and Appeals?
(a) In all hearings under this regulation:
(1) The parties have the right to be represented by a person of their
choosing or to proceed without representation. The parties are responsible for
producing witnesses in their behalf, including requesting the issuance of
subpoenas, if necessary;
(2) Testimony of witnesses is given under oath or affirmation, and witnesses
must be advised of the applicability of 18 U.S.C. §§ 1001 and 1621,
dealing with the criminal penalties associated with false statements and
perjury;
(3) Witnesses are subject to cross-examination;
(4) Formal rules of evidence do not apply, but OHA may use the Federal Rules
of Evidence as a guide; and
(5) A court reporter will make a transcript of the hearing.
(b) The Hearing Officer has all powers necessary to regulate the conduct of
proceedings:
(1) The Hearing Officer may order discovery at the request of a party, based
on a showing that the requested discovery is designed to produce evidence
regarding a matter, not privileged, that is relevant to the subject matter of
the complaint;
(2) The Hearing Officer may permit parties to obtain discovery by any
appropriate method, including deposition upon oral examination or written
questions; written interrogatories; production of documents or things;
permission to enter upon land or other property for inspection and other
purposes; and requests for admission;
(3) The Hearing Officer may issue subpoenas for the appearance of witnesses
on behalf of either party, or for the production of specific documents or other
physical evidence;
(4) The Hearing Officer may rule on objections to the presentation of
evidence; exclude evidence that is immaterial, irrelevant, or unduly
repetitious; require the advance submission of documents offered as evidence;
dispose of procedural requests; grant extensions of time; determine the format
of the hearing; direct that written motions, documents, or briefs be filed with
respect to issues raised during the course of the hearing; ask questions of
witnesses; direct that documentary evidence be served upon other parties (under
protective order if such evidence is deemed confidential); and otherwise
regulate the conduct of the hearing;
(5) The Hearing Officer may, at the request of a party or on his or her own
initiative, dismiss a claim, defense, or party and make adverse findings upon
the failure of a party or the partys representative to comply with a
lawful order of the Hearing Officer, or, without good cause, to attend a
hearing;
(6) The Hearing Officer, upon request of a party, may allow the parties a
reasonable time to file pre-hearing briefs or written statements with respect
to material issues of fact or law. Any pre- hearing submission must be limited
to the issues specified and filed within the time prescribed by the Hearing
Officer.
(7) The parties are entitled to make oral closing arguments, but
post-hearing submissions are only permitted by direction of the Hearing
Officer.
(8) Parties allowed to file written submissions must serve copies upon the
other parties within the time prescribed by the Hearing Officer.
(9) The Hearing Officer is prohibited, beginning with his or her appointment
and until a final agency decision is issued, from initiating or otherwise
engaging in ex parte (private) discussions with any party on the merits
of the complaint.
708.29 What must the parties to a complaint prove?
The employee who files a complaint has the burden of establishing by a
preponderance of the evidence that he or she made a disclosure, participated in
a proceeding, or refused to participate, as described under § 708.5, and
that such act was a contributing factor in one or more alleged acts of
retaliation against the employee by the contractor. Once the employee has met
this burden, the burden shifts to the contractor to prove by clear and
convincing evidence that it would have taken the same action without the
employees disclosure, participation, or refusal.
708.30 What process does the Hearing Officer follow to issue an initial
agency decision?
(a) The Hearing Officer will issue an initial agency decision on your
complaint by the 60th day after the later of:
(1) The date the Hearing Officer approves the parties agreement to
cancel the hearing;
(2) The date the Hearing Officer receives the transcript of the hearing; or
(3) The date the Hearing Officer receives post-hearing submissions permitted
under § 708.28(b)(7) of this subpart.
(b) The Hearing Officer will serve the initial agency decision on all
parties.
(c) An initial agency decision issued by the Hearing Officer will contain
appropriate findings, conclusions, an order, and the factual basis for each
finding, whether or not a hearing has been held on the complaint. In making
such findings, the Hearing Officer may rely upon, but is not bound by, the
report of investigation.
(d) If the Hearing Officer determines that an act of retaliation has
occurred, the initial agency decision will include an order for any form of
relief permitted under § 708.36.
(e) If the Hearing Officer determines that an act of retaliation has not
occurred, the initial agency decision will state that the complaint is denied.
708.31 If no hearing is conducted, what is the process for issuing an
initial agency decision?
(a) If no party wants a hearing after the issuance of a report of
investigation, the Hearing Officer will issue an initial agency decision by the
60th day after the hearing is canceled pursuant to § 708.24. The standards
in § 708.30, governing the issuance of an initial agency decision, apply
whether or not a hearing has been held on the complaint.
(b) The Hearing Officer will serve the initial agency decision on all
parties.
708.32 Can a dissatisfied party appeal an initial agency decision?
(a) Yes. By the 15th day after receiving an initial agency decision from the
Hearing Officer, any party may file a notice of appeal with the OHA Director
requesting review of the initial agency decision.
(b) A party who appeals an initial agency decision (the appellant) must
serve a copy of the notice of appeal on all other parties.
(c) A party who receives an initial agency decision by a Hearing Officer has
not exhausted its administrative remedies until an appeal has been filed with
the OHA Director and a decision granting or denying the appeal has been issued.
708.33 What is the procedure for an appeal?
(a) By the 15th day after filing a notice of appeal under § 708.32, the
appellant must file a statement identifying the issues that it wishes the OHA
Director to review. A copy of the statement must be served on the other
parties, who may file a response by the 20th day after receipt of the
statement. Any response must also be served on the other parties.
(b) In considering the appeal, the OHA Director:
(1) May initiate an investigation of any statement contained in the request
for review and utilize any relevant facts obtained by such investigation in
conducting the review of the initial agency decision;
(2) May solicit and accept submissions from any party that are relevant to
the review. The OHA Director may establish appropriate times to allow for such
submissions;
(3) May consider any other source of information that will advance the
evaluation, provided that all parties are given an opportunity to respond to
all third person submissions; and
(4) Will close the record on appeal after receiving the last submission
permitted under this section.
708.34 What is the process for issuing an appeal decision?
(a) If there is no appeal of an initial agency decision, and the time for
filing an appeal has passed, the initial agency decision becomes the final
agency decision.
(b) If there is an appeal of an initial agency decision, the OHA Director
will issue an appeal decision based on the record of proceedings by the 60th
day after the record is closed.
(1) An appeal decision issued by the OHA Director will contain appropriate
findings, conclusions, an order, and the factual basis for each finding,
whether or not a hearing has been held on the complaint. In making such
findings, the OHA Director may rely upon, but is not bound by, the report of
investigation and the initial agency decision.
(2) If the OHA Director determines that an act of retaliation has occurred,
the appeal decision will include an order for any form of relief permitted
under § 708.36.
(3) If the OHA Director determines that the contractor charged has not
committed an act of retaliation, the appeal decision will deny the complaint.
(c) The OHA Director will send an appeal decision to all parties and to the
Head of Field Element or EC Director having jurisdiction over the contract
under which you were employed when the alleged retaliation occurred.
(d) The appeal decision issued by the OHA Director is the final agency
decision unless a party files a petition for Secretarial review by the 30th day
after receiving the appeal decision.
708.35 How can a party obtain review by the Secretary of Energy of an
appeal decision?
(a) By the 30th day after receiving an appeal decision from the OHA
Director, any party may file a petition for Secretarial review with the Office
of Hearings and Appeals.
(b) By the 15th day after filing a petition for Secretarial review, the
petitioner must file a statement identifying the issues that it wishes the
Secretary to consider. A copy of the statement must be served on the other
parties, who may file a response by the 20th day after receipt of the
statement. Any response must also be served on the other parties.
(c) All submissions permitted under this section must be filed with the
Office of Hearings and Appeals.
(d) After a petition for Secretarial review is filed, the Secretary (or his
or her delegee) will issue the final agency decision on the complaint. The
Secretary will reverse or revise an appeal decision by the OHA Director only
under extraordinary circumstances. In the event the Secretary determines that a
revision in the appeal decision is appropriate, the Secretary will direct the
OHA Director to issue a revised decision which is the final agency action on
the complaint.
708.36 What remedies for retaliation may be ordered in initial and final
agency decisions?
(a) General remedies. If the initial or final agency decision
determines that an act of retaliation
has occurred, it may order:
(1) Reinstatement;
(2) Transfer preference;
(3) Back pay;
(4) Reimbursement of your reasonable costs and expenses, including attorney
and expert-witness fees reasonably incurred to prepare for and participate in
proceedings leading to the initial or final agency decision; or
(5) Such other remedies as are deemed necessary to abate the violation and
provide you with relief.
(b) Interim relief. If an initial agency decision contains a
determination that an act of retaliation occurred, the decision may order the
contractor to provide you with appropriate interim relief (including
reinstatement) pending the outcome of any request for review of the decision by
the OHA Director. Such interim relief will not include payment of any money.
708.37 Will an employee whose complaint is denied by a final agency
decision be reimbursed for costs and expenses incurred in pursuing the
complaint?
No. If your complaint is denied by a final agency decision, you may not be
reimbursed for the costs and expenses you incurred in pursuing the complaint.
708.38 How is a final agency decision implemented?
(a) The Head of Field Element having jurisdiction over the contract under
which you were employed when the alleged retaliation occurred, or EC Director,
will implement a final agency decision by forwarding the decision and order to
the contractor, or subcontractor, involved.
(b) A contractor's failure or refusal to comply with a final agency decision
and order under this regulation may result in a contracting officer's decision
to disallow certain costs or terminate the contract for default. In the event
of a contracting officer decision to disallow costs or terminate a contract for
default, the contractor may file a claim under the disputes procedures of the
contract.
708.39 Is a decision and order implemented under this regulation
considered a claim by the government against a contractor or a decision by the
contracting officer under sections 6 and 7 of the Contract Disputes Act?
No. A final agency decision and order issued pursuant to this regulation is
not considered a claim by the government against a contractor or Aa decision by
the contracting officer@ under sections 6 and 7 of the Contract Disputes Act
(41 U.S.C. 605 and 606).
Sec. 708.40 Are contractors required to inform their employees about this
program?
Yes. Contractors who are covered by this part must inform their employees
about these regulations by posting notices in conspicuous places at the work
site. These notices must include the name and address of the DOE office where
you can file a complaint under this part.
Sec. 708.41 Will DOE ever refer a complaint filed under this part to
another agency for investigation and a decision?
Notwithstanding the provisions of this part, the Secretary of Energy
retains the right to request that a complaint filed under this part be accepted
by another Federal agency for investigation and factual determinations.
Sec. 708.42 May the deadlines established by this part be extended by any
DOE official?
Yes. The Secretary of Energy (or the Secretary's designee) may approve the
extension of any deadline established by this part, and the OHA Director may
approve the extension of any deadline under Sec. 708.22 through Sec. 708.34 of
this subpart (relating to the investigation, hearing, and OHA appeal process).
Sec. 708.43--Does this rule impose an affirmative duty on DOE contractors
not to retaliate?
Yes. DOE contractors may not retaliate against any employee because the
employee (or any person acting at the request of the employee) has taken an
action listed in Secs. 708.5(a)-(c).
Click here to view Federal Register notice adopting the above regulations (less subsequent minor changes) as an Interim Final Rule.
Click here to view Federal Register notice adopting the Interim Final Rule (with minor changes) as a Final Rule.
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