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Under 10 C.F.R. Part 708 (“the whistleblower regulations”),
DOE contractor employees who believe that their employers retaliated
against them for making a protected disclosure may file a complaint with
the Head of Field Element or with the DOE Employee Concerns Director
(hereafter collectively “Field Elements”). Under the most
recently-issued version of the whistleblower regulations, Field Elements
are for the first time responsible for making jurisdictional
determinations regarding these Part 708 complaints. Given this important
new responsibility, Field Elements have understandably raised a number of
questions regarding the meaning of the regulations, and the approach they
should adopt in making these preliminary jurisdictional decisions. Set out
below is some information, in question and answer format, that the Office
of Hearings and Appeals (OHA) hopes the Field Elements will find helpful
in making jurisdictional determinations. Anyone using these Questions and
Answers should keep in mind that they are intended for informal guidance
only. The information provided is not a binding interpretation of the
regulations--that can only be done on a case-by-case basis. Any office
using these Questions and Answers should always give primary consideration
to the unique facts of the case before it.
QUESTIONS AND ANSWERS FOR DOE FIELD ELEMENTS CONCERNING JURISDICTIONAL
ISSUES UNDER 10 C.F.R. PART 708
Q: Section 708.4(b) says that an employee may not file a complaint
under Part 708 if the complaint involves misconduct that the complainant,
acting without direction from his employer, deliberately caused or in which
the complainant knowingly participated. Does this mean that an employee may
not file a Part 708 complaint if his employer states that it terminated the
individual for bad behavior?
A: The key here is to look at the employee’s disclosure, and not at
the stated reason for the termination by the employer. For example, if the
employee made a safety-related disclosure, stating that there was some
contamination at the workplace, you should look at whether the employee
intentionally created that contamination. If so, the Field Office should
not accept the Part 708 complaint for further processing. However, if the
contamination was caused by another employee, or if the complainant
created the contamination inadvertently, then his disclosure of the
contamination could be protected. In that event, if his employer later
terminated him for some alleged misconduct, such as insubordination,
Section 708.4(b) would not necessarily bar the employee from filing a Part
708 complaint. To give another example, suppose an employee stole some
equipment from a plant, reported that theft, and claimed he made a
protected disclosure regarding a violation of the law. The disclosure
would involve misconduct by the complainant. A complaint based upon that
disclosure would therefore be precluded under Section 708.4(b). So, to sum
up, look to the nature of the protected disclosure and not to the given
reason for the termination to see whether Section 708.4(b) applies.
Q: Section 708.5 says that an employee may file a complaint against his
employer. What happens if the employee says that he has no complaint with
his actual employer (a subcontractor), but only with a higher level
contractor who actually took him off the job?
A: Section 708.5 is quite clear. The employee must at a minimum name his
own contractor employer. Otherwise, the complaint can be dismissed for
lack of jurisdiction. The Field Element should therefore advise the
employee that a complaint may only be processed if it names his actual
employer. The employee may also name a higher-level contractor that he
believes to be at fault. The firm or firms that may ultimately be required
to provide relief will be established later on in the proceeding by the
OHA.
Q: The facts that have been revealed in the complaint and in the
responses by the various contractors are murky. I do not have a good sense
of where the truth lies, so making a determination on accepting jurisdiction
will be difficult. What should I do?
A: It is only natural that the facts will be rather thin at the early
stages of a Part 708 complaint proceeding. If the Field Element believes
it needs a few additional facts, it can certainly request that a party
clarify its position. Otherwise, it should make the best determination
possible, given what it knows at the time. In these early stages of a Part
708 proceeding, particularly where there is little precedent on
jurisdictional issues, you should resolve all disputed facts in favor of
the complainant. Field Elements should err, if they must, on the side of
accepting jurisdiction. The OHA can then consider jurisdictional issues
more fully as facts and arguments are developed during the investigation
and hearing stages.
Q: What if an employee has not filed his complaint in a timely fashion
under Section 708.14? Do I have to dismiss?
A: Complaints are supposed to be filed within 90 days of the retaliation
and may be dismissed if not timely. However, a Field Office has discretion
to accept a late complaint under Section 708.14(d). You should give the
employee an opportunity to state his reasons for the late filing. In your
determination, you should fully discuss whether or not the reasons for the
late filing have merit.
Q: If a complainant has not stated that he exhausted all applicable
grievance or arbitration procedures as required by Section 708.12, do I have
to dismiss?
A: No. First of all, if a complainant has exhausted these procedures and
has simply failed to provide the statement, you should ask the complainant
to provide the required statement. There may also be some question as to
whether the procedures that the employer has put into place are actually
grievance/arbitration procedures envisioned by Section 708.12, or whether
they are simply some other type of internal review process that an
employer offers. The employee is required only to avail himself of true
grievance and arbitration procedures. Grievance procedures usually involve
some union participation. Arbitration in this context would usually
involve an employee meeting with his employer and a neutral third party.
Other internal review opportunities provided by an employer, such as a
review through an employee concerns process, might not meet this standard
and an employee would therefore not necessarily be required to use them
before filing a Part 708 complaint. You should nevertheless encourage a
complainant to use employee concerns procedures, and try to resolve
complaints in the simplest way possible. However, you will still have to
make some factual and legal determinations on this type of issue. They may
not be straightforward or obvious at this stage of a proceeding, but you
should simply make the best determination you can based on what you know.
In making a jurisdictional analysis and determination, you should resolve
disputed facts in favor of the whistleblower. Complicated jurisdictional
arguments can be considered by the OHA after more detailed fact-finding is
done during the investigation and after a hearing has taken place.
Q: Section 708.17 talks about when a complaint should be dismissed. Do
I have to dismiss if any of these criteria are met?
A: No. Section 708.17(c) states that dismissal is “appropriate”
if any of the stated criteria are met. However, the Field Element should
certainly consider if there are reasons why a complaint should go forward
anyway. For example, a complaint may be dismissed if it is untimely.
Section 708.17(c)(1). However, as discussed above, if there is good cause
for the late filing, you should state what that good cause is and, if
otherwise appropriate, permit the complaint to go forward. Nevertheless,
it is unlikely that good cause can be found to exist for allowing a
complainant to proceed under Part 708 if he has a pending complaint under
state or other applicable law with respect to the same facts. Section
708.17 (c)(3). As a result, you will have to dismiss the complaint while
another action is pending.
Q: What if a complaint does not include all the information required
under Sections 708.12 and .13? Should I dismiss?
A: No. You should first provide the complainant with an opportunity to
make all the statements necessary to constitute a good filing.
Prepared by:
Virginia A. Lipton
Assistant Director
Office of Hearings and Appeals
July 25, 2000
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