Whistleblowers Who Conducted Dangerous Tests Not Protected from Discipline

Issue: Three control room operators at a nuclear power plant believed that their employer was maintaining its hydrogen pressure in an unsafe manner. After complaining to the engineering department, they felt that their safety concerns had not been adequately addressed. In order to determine the validity of their concerns, the employees knowingly conducted potentially dangerous and unauthorized tests at the plant during two consecutive midnight shifts, activating the plant’s alarm systems on each occasion. The employees had even prepared in advance in case their tests caused an “accident.” In response to these unauthorized tests, the employer terminated two of the employees and reprimanded and transferred the third employee. Claiming they had been discriminated against for attempting to ensure the safety of the plant, the employees sued the employer, arguing that, as licensed nuclear operators, they owed a duty to the public to verify what they believed to be a critical safety issue. Did the employer discriminate against the three employees by taking disciplinary measures?

Answer: No. The employer acted appropriately due to the employees’ “reckless disregard” for the potential hazards associated with these tests. The court noted that “regardless of their motives, good or bad, petitioners moved knowingly and dangerously beyond their authority when, on their own, and fully aware that their employer would not approve, they conducted experiments inherently fraught with danger.” The employees acted deliberately and without direction from management when they knowingly conducted tests in violation of requirements of the Nuclear Regulatory Commission (NRC). In addition, the employees knew that their tests could produce conditions “sufficiently perilous to set off alarms” at the nuclear facility.

Employer obligations:
The employees based their claims of discrimination on a federal statute designed to protect employees who “blow the whistle” on their employers. This statute may be found at Title 42 of the United States Code, §5851. Specifically, the statute prohibits an employer from discriminating against an employee because the employee—

1. notified the employer of an alleged unlawful activity, or
2. refused to engage in an unlawful activity if he or she has identified the illegality to the employer.

However, the statute also contains a provision that renders its protections inapplicable to employees who deliberately engage in unlawful activities without direction from the employer. Because the employees in the present case deliberately conducted unauthorized tests that they knew would violate standards established by the NRC, their actions were not protected by the whistleblower statute.

Cite: David A. Fields, Robert P. Weiss, et al, Petitioners, vs. United States Department of Labor Administrative Review Board, Respondent, 11thCir, 138 LC 10,445.

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