The following is a list of the questions answered below:
1. What is the DOE Contractor Employee Protection Program designed to do?
3. Why is the program limited to DOE contractor employees?
4. Who are the parties to a complaint?
5. Does a complainant need legal representation during the investigation?
7. What happens at the beginning of the investigation?
8. Will the investigator consider more than one alleged protected disclosure?
9. Will the investigator consider more than one alleged retaliation?
10. How do the complainant and the contractor present their views to the investigator?
11. How do the complainant and the contractor submit documents?
14. What does the investigator’s report look like?
15. Who is responsible for the information in these questions and answers?
The program is designed to provide relief to DOE contractor employees who have suffered retaliation by their employers for engaging in protected activity. Protected activity includes making protected disclosures (i.e., whistleblowing), refusing to participate in certain activities, or participating in certain proceedings. The program is not designed to address the legal, safety, or management concerns that gave rise to the protected activity.Go to List
A DOE contractor employee files a complaint alleging that the contractor retaliated against the employee for making a protected disclosure or engaging in protected conduct. In general, if the employee is successful, the employee may obtain employment-related relief, such as back pay, reinstatement, and reasonable attorneys’ fees and expenses in pursuing the complaint.
The DOE Office of Hearings and Appeals is responsible for investigations, hearings and appeals. The office publishes the regulations and its whistleblower decisions at its web site, www.oha.doe.gov.
The issues in a proceeding are: (i) whether the complainant made a protected disclosure or engaged in protected conduct, (ii) whether any such disclosure or conduct was a contributing factor to an adverse personnel action or other alleged retaliation, (iii) whether the contractor would have taken the same action in the absence of the alleged protected disclosure or conduct, and (iv) what relief, if any, is appropriate. For more detail, see Questions 12 and 13.Go to List
The program is limited to DOE contractor employees because special federal statutes protect federal employees.Go to List
The parties to the complaint are the DOE contractor employee, the employer, and, in some cases, higher tier DOE contractors.Go to List
A lawyer is not required, but a lawyer may be able to make a stronger case for the complainant. Complainants who do not have lawyers are encouraged to ask the investigator any questions they may have about the investigatory process. In some cases, the complainant has retained an attorney after receiving the report of investigation. The report of investigation may help an attorney understand the complainant’s situation.Go to List
The Director of the Office of Hearings and Appeals appoints an investigator, who then conducts an investigation. When the investigator issues a report of the investigation, the Director appoints a different individual to serve as the hearing officer. Once the investigator issues a report, his involvement in the case is concluded.Go to List
The investigator confers with the parties to learn about the subject matter, determine the scope of the investigation, and identify matters that are not disputed. The investigator exercises discretion in determining the issues for investigation.Go to List
If the complainant alleges multiple protected disclosures, the investigator may focus on the disclosure(s) most likely to be protected and to have contributed to the alleged retaliation. If the investigator concludes that one disclosure is protected and a contributing factor to the alleged retaliation, there may be no need to consider the other alleged protected disclosures. The investigator generally does not focus on the number of disclosures. Finally, the investigator does not consider whether the contractor has satisfied the employee’s concerns about the subject matter of the disclosure.Go to List
If the complainant alleges multiple retaliations, the investigator may focus on the most significant retaliations, i.e., those that most adversely affect the complainant or those that are the most proximate in time to the alleged protected conduct.Go to List
The complainant and the contractor each has an opportunity to talk with the investigator, to submit documents, and to identify individuals who have first hand knowledge of the events. The investigator exercises discretion in determining which individuals to interview. In some investigations, the interview memoranda are shared with the interviewee and the parties. In other investigations, those memoranda are provided when the report of investigation is issued.Go to List
In most cases, when the complainant or the contractor sends a document to the investigator, the party submitting the document must also send a copy to the other party. If the party submitting the document believes that it contains confidential material, the party should block out the confidential material before copying and submitting the document. The party should identify where deletions were made.Go to List
The complainant should focus on establishing a protected disclosure or protected conduct that the complainant believes was a contributing factor to the alleged retaliation (for example, a protected disclosure in close proximity in time to the alleged retaliation). Section 708.5 of the regulations defines those terms. In general, the complainant should avoid bringing up disagreements with management, which are not covered by this program. The contractor should focus on whether it agrees that the alleged disclosure occurred and, if so, whether it is protected. If there is a factual dispute about whether a disclosure occurred, both parties should identify relevant documents and witnesses.Go to List
The complainant should identify the alleged retaliation, which can be an adverse personnel action or other action that falls within the definition of “retaliation” set forth in Section 708.2 of the regulations. Major adverse personnel actions are termination, demotion, transfer, and reprimand. Performance ratings, salary and bonus determinations, office assignments, and access to training may also form the basis for a Part 708 complaint. The contractor should consider submitting documents and identifying individuals to explain (i) why the contractor took the adverse action at issue, and (ii) how the contractor has treated similarly situated employees. In the case of a reduction-in-force, the contractor should consider submitting general information on how the reduction-in-force was structured, as well as specific information on why the complainant was terminated.Go to List
The report describes the results of the investigation. In particular the report focuses on the issues identified in the answer to Question 2. The investigator will identify the disputed issues and discuss the documents and interviews that address those issues. The report may contain tentative findings on those issues, and such findings generally help to focus the issues for the hearing but are not binding on the parties or the hearing officer. Once the report is issued, the investigation is concluded. The investigator does not participate in any further proceedings in the case.Go to List
These questions and answers were prepared by Janet N. Freimuth, Deputy Assistant Director, Office of Hearings and Appeals. They describe the typical process for investigations. A party or interviewee in an investigation should direct any questions about procedures for that investigation to the investigator. Anyone not involved in an investigation who has general questions may contact Ms. Freimuth at HG-40/L’Enfant Plaza Bldg., 1000 Independence Ave., SW, Washington, DC 20585-1615, janet.freimuth@hq.doe.gov, (202) 287-1439.Go to List
Last updated September 3, 2003