42 U.s.c. 5851 (era)

ERA

Energy Reorganization Act (ERA)
Public Law 95-601, Nov 6, 1978
42 USC Section 5851
as amended by the Energy Policy Act of 2005, PL 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;
(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.

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2210(d)), but such term shall not include any contractor or subcontractor covered by
Executive Order No. 12344;
(E) a contractor or subcontractor of the Commission;
(F) the Commission; and
(G) the Department of Energy.
(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.

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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.

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(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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