DATE:  March 30, 1994
CASE NO. 89-ERA-22


IN THE MATTER OF

SHANNON T. DOYLE,

          COMPLAINANT,

     v.

HYDRO NUCLEAR SERVICES,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     The Administrative Law Judge (ALJ) submitted a Recommended
Decision and Order (R.D. and O.) in this case arising under the
employee protection provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988),
recommending that the complaint be dismissed.  He held that
Respondent refused to hire Complainant for a legitimate reason,
not for protected activities under the ERA.
     Complainant applied for a position with Respondent in 
October 1988 and went through various employment screening
procedures in November 1988.  Among other things, Respondent
required Complainant to complete an Authorization for Release of
Information and Records (authorization form), authorizing
Complainant's prior employers and other organizations to release
his employment and other records to Respondent.  The
authorization form included the following paragraph which
Complainant crossed out before signing the form:
     Further, I hereby release and discharge Hydro Nuclear
     Services, their representatives, and their clients for
     whom the investigation is being performed and any 
[PAGE 2]
organization listed above furnishing or receiving any information
pertaining to me from any and all liability or claim as results
[sic] of furnishing or receiving such information pursuant to
this authorization. Complainant objected to this paragraph of the
authorization form because he believed it constituted a waiver of his
rights under the ERA.  Complainant told Robert Booker, Respondent's
Manager of Employee Relations, about Complainant's "previous
whistleblower status and the difficulties [he] had experienced in obtaining
further nuclear industry [sic] employment."  December 9, 1988
complaint to Wage-Hour Division, page 6.  Complainant refused to
sign another copy of the authorization form unless it was amended
and Respondent refused to hire him. 
     The ALJ held that Complainant misconstrued the authorization
form because he "incorrectly believes that [the] release would
jeopardize any 'whistleblower' remedies he may be pursuing
against other entities."  R.D. and O. at 4.  The ALJ concluded
that "Respondent had a right to require all prospective employees
to sign such a release in order to obtain all necessary
information pertaining to an individual's post [sic] record.
Since Complainant refused to accept this requirement . . .
Respondent had a legal right to refuse to employ Complainant."  I
disagree with the ALJ's interpretation of the authorization form,
and the applicability of the ERA to this situation.
     The ERA provides that
     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 . . .

          (1) commenced, caused to be commenced, or is
          about to commence or cause to be commenced a
          proceeding under [the ERA] . . .

          (2) testified or is about to testify in any
          such proceeding or;

          (3) 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 [the ERA]. 
     The authorization form releases Respondent and "any
organization . . . furnishing . . . information [about
Complainant] from any and all liability . . . as [a]
result[] of furnishing or receiving such information . . . ." 
(Emphasis added.)  Giving the authorization form its most narrow reading, [1] 


[PAGE 3]
it would release Respondent and any other employer from whom
Respondent obtained information about Complainant from any claim
that the information had been provided or used to deny
Complainant employment because of protected activities under the
ERA.  In other words, by signing the form, Complainant would have
waived his right to file a complaint of illegal blacklisting
under the ERA.  [2] 
     No case have been found, and the parties have not cited 
any, directly on point.  Cases from other areas dealing with
analogous situations indicate, however, that waivers such as this
are highly disfavored.  An analogous situation arose under the
Fair Labor Standards Act, 29 U.S.C. §§ 201-217 (1988). 
In Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697 (1945), an
employee accepted a check from his employer for overtime pay
which the employer had failed to pay him two years before, and
signed a release of all his rights under the FLSA.  The employee
later sued for liquidated damages under § 16(b).  29 U.S.C.
§ 216(b). The Court held that such a written waiver, in the
absence of a bona fide dispute between the parties as to
liability, does not bar a claim for liquidated damages.  The
Court said
     [w]here a private right is granted in the public
     interest to effectuate a legislative policy, waiver of
     a right so charged or colored with the public interest
     will not be allowed where it would thwart the
     legislative policy which it was designed to effectuate.
324 U.S. at 697.
Whether the statutory right may be waived under any particular
statute depends on the intent of Congress.  Id.  The Court looked
to the legislative policy behind the liquidated damages provision
because the FLSA and the legislative history were silent on this
point.  Id. at 706.  The Court found the purpose of the FLSA was
"to protect certain groups . . . from sub-standard wages and
excessive hours which endangered the national health and well
being and the free flow of goods in interstate commerce."  Id.
Waiver of statutory minimum wages and overtime pay would nullify
the act, and the Court found that waiver of liquidated damages
would have the same effect.  Id. at 707.
     Even where individuals considered themselves "volunteers"
who would not accept compensation from the business enterprises
of a religious foundation, the Court has held that they are
nevertheless employees if they meet the "economic realities"
test.  Otherwise, employers could coerce employees through
superior bargaining power to testify that they are volunteers, or
to waive their rights under the FLSA.  Tony & Susan Alamo
Found. v. Secretary of Labor, 471 U.S. 290, 302
(1985).
     Waiver of a right to sue on an existing claim under Title 
[PAGE 4]
VII of the Civil Rights Act of 1964 or the Age Discrimination in
Employment Act is enforceable, if there is proof that the waiver
and the circumstances under which it was signed meet certain
standards.  See. e.a., Torrez v. Public Serv. Co.,
908 F.2d 687, 689 (lOth Cir. 1990). [3]   However, "[t]here can
be no prospective waiver of an employee's rights under Title
VII."  Alexander v. Gardner-Denver Co., 415 U.S. 36, 51
(1974).
     There can be little doubt that, if Complainant had signed
the authorization form, but Respondent refused to hire him based
on information from a previous employer about Complainant's
protected activities, and Complainant filed a complaint under 
the ERA of discriminatory refusal to hire, waiver of rights 
under the ERA could not be raised by Respondent as a defense.
Otherwise, any covered employer could nullify the Act and
Congressional intent to protect public health and safety by
prohibiting retaliation against those who report potential safety
hazards in the construction and operation of nuclear power
plants.  Mackowiak v. University Nuclear Sys. Inc., 735
F.2d 1159, 1163 (9th Cir. 1984) (the ERA has "the broad remedial
purpose of protecting workers from retaliation based on their
concerns for safety and quality"); Hill v. TVA, Case Nos. 
87-ERA-23, 24, Sec. Decision May 24, 1989, slip op. at 4-5 ("[i]n
the nuclear power industry, given the magnitude of the potential
hazards to employee and public safety and health, there is an
especially compelling need to keep open the channels of
communication regarding potential safety and quality violations.
'If employees are coerced and intimidated into remaining silent
when they should speak out, the results can be catastrophic.'
Rose v. Secretary of Labor, 800 F.2d 563, 565 (6th Cir.
1986) (Edwards, J., concurring).").
     Requiring Complainant to choose between a job and his rights
under the ERA would be equally as destructive of Congressional
intent as the waiver in Brooklyn Bank v. O'Neil. 
Employers could refuse to hire those who will not waive their
rights and hire only those who are willing to waive their right
to complain of retaliation.  Such employees may reasonably
believe they have no protection under the ERA and will be afraid
to speak out about safety problems. [4] 
     Respondent argues that it was following the American
National Standard on Security for Nuclear Power Plants, ANSI/ANS-
3.3 - 1982, which provides for a comprehensive screening program
for employees who are granted unescorted access to a nuclear
power plant.  One part of the screening program is a background
review, which requires the individual to sign a release
authorizing Respondent to obtain information from previous
employers, educational records information, and a criminal
records check.  This information is necessary, Respondent states,

[PAGE 5]
"to satisfy the plant operator that the individual is not a
threat to the plant or the public health and safety."
Respondent's Brief in Support of Recommended Decision and Order
at 15.  
     Respondent has not offered any reason why the background
information it needs to conduct the screening under the ANSI
standard cannot be obtained with a release which does not include
a waiver of liability.  Respondent asserts that "[t]he employer
should be able to protect itself against any claim arising out of
the innocent, but necessary, provision or receipt of
information."  Id.  But Respondent has not explained why, under
the ERA and regulations, it should be able to shield itself from
the anti-retaliation provision of the Act. [5]   If Respondent
"innocently", i.e., in good faith, refuses to hire an applicant
based on derogatory information supplied by another employer, the
other employer may be held liable for blacklisting, but not
Respondent.  However, if Respondent refused to hire an applicant
because he filed a complaint with the NRC against another
employer, such a clear violation of the ERA and the regulations
would be immunized if this release were allowed to stand. 
Moreover, the release would also immunize other employers who
might, because of a retaliatory motive, provide Respondent false
or misleading information about Complainant.  I find that
Respondent violated the ERA when it refused to hire Complainant
because he refused to sign the authorization form unless the
release of liability paragraph was deleted.  
     Accordingly, it is ORDERED that Respondent extend an offer
of employment to Complainant as a senior technician or similar
comparable position, and pay Complainant back pay, with interest,
less interim earnings from November 21, 1988 to the date of hire
or the date of the offer of employment if Complainant declines
the offer.  
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   I note that Complainant is a layman who was not represented
by counsel when the dispute over the authorization form took
place. Even lawyers can disagree over the scope and effect of the
language in question.  It is not surprising that Complainant
refused to sign a form which could easily be interpreted as a
waiver of his rights under the ERA.

[2]   The regulations implementing the ERA explicitly prohibit
blacklisting, 29 C.F.R.  24.2(b) (1990), and the Secretary has
held that blacklisting, which is "insidious and invidious [and]
cannot easily be discerned," is prohibited by the ERA. 
Eqenrieder v. Metropolitan Edison Co./G.P.U., Case No.
85-ERA-23, Sec. Decision April 20, 1987, slip op. at 8. 
"Blacklisting" is marking an individual "for special avoidance,
antagonism, or enmity on the part of those who prepare the list
or those among whom it is intended to circulate."  BLACK'S LAW
DICTIONARY 154 (5th Ed. 1979).

[3]   Even in situations where waivers are permissible, a number
of factors are considered and weighed together to determine
whether the waiver is enforceable.  See Torrez v.
Public Service Co., 908 F.2d at 689.  I have considerable
doubt whether the waiver here would have been enforceable when
evaluated by some of these standards, e.g., whether Complainant
was encouraged to seek, or in fact received benefit of counsel;
whether there was an opportunity for negotiation of the terms of
the agreement; whether the consideration given in exchange for
the waiver exceeded the benefits to which the employee was
already entitled by contract or law.

[4]   Some courts have held that an agreement not to sue as a
condition of employment is unenforceable as against public
policy.  Nicholson v. Conrail, No. 86-C-5551 (N.D. Ill.
Jan. 14, 1987) (LEXIS, Genfed library, Dist. file 244, page 2),
and cases cited therein.  "[A] release covering all claims that
might later arise between the parties 'would constitute a consent
to the foregoing of legal protection for the future and would
plainly be against public policy.'"  Id.

[5]   Respondent also argues that use of the authorization form
in Complainant's case was not a pretext because Respondent
routinely uses the form for screening all applicants.  The issue
here, however, is not whether use of the form was a pretext for
discrimination for some other impermissible reason.  Respondent's
reason for not hiring Complainant is clear.  The only issue is
whether that reason is itself a violation of the ERA.