DEPARTMENT OF 

ENERGY

Whistleblower 

Protections Need 

Strengthening

Report to Congressional Requesters

July 2016

GAO-16-618

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-16-618, a report to 

congressional requesters

July 2016

DEPARTMENT OF ENERGY

Whistleblower Protections Need Strengthening

What GAO Found

The Department of Energy (DOE) has used a combination of independent 

reviews and contractor self-assessments to evaluate the openness of the 

environment for raising safety and other concerns. The independent reviews, 

which were methodologically sound and consistently applied, revealed problems 

with the environment for raising concerns. In contrast, many self-assessments 

used flawed and inconsistent methodologies and overstated the openness of the 

environment. For example, self-assessment survey response rates were as low 

as about 5 percent and were not sufficient for drawing conclusions. Contractor 

officials told GAO that the low response rates, in some cases, reflect a concern 

about anonymity. Nonetheless, additional independent assessments are not 

planned. Instead, DOE plans to provide voluntary guidance to contractors and 

rely on them to conduct evaluations and take appropriate action in response to 

results. Consequently, DOE cannot judge the openness of its environment or 

ensure that appropriate action is taken in response to evaluation results.

Several factors may limit the use and effectiveness of mechanisms for contractor 

employees to raise concerns and seek whistleblower protections. For example, 

contractor employees seeking a remedy for alleged retaliation may find DOE’s 

whistleblower program difficult to navigate without legal assistance because it 

includes filing motions and appeals and arguing before an administrative judge. 

One case GAO examined was dismissed because the complaint was too vague. 

On appeal, more specific information was provided but was considered a 

recharacterization of events and the appeal was denied. A new statutory 

whistleblower pilot program available to DOE and other government contractors 

may mitigate some of these challenges. Under the pilot program, DOE’s Office of

Inspector General investigates alleged retaliation, and officials with this office 

told GAO that legal assistance would not be necessary. The pilot program 

expires in January 2017, however, and DOE has not evaluated the extent of its 

implementation or whether it might mitigate challenges of the existing program.

DOE has infrequently used its enforcement authority to hold contractors 

accountable for unlawful retaliation, issuing two violation notices in the past 20 

years. Additionally, in 2013, in response to proposed revisions to its enforcement 

guidance, DOE determined that it does not have the authority to enforce a key 

aspect of policies that prohibit retaliation for nuclear safety-related issues—

despite having taken such enforcement actions previously. In May 2016, DOE 

announced tentative plans to issue regulations to resolve this issue. Also, DOE 

has taken limited or no action to hold contactors accountable for creating a 

chilled work environment—in part because DOE has not clearly defined what 

constitutes evidence of a chilled work environment or the steps needed to hold 

contractors accountable. DOE officials provided GAO with examples where (1) 

little or nothing was done in response to intimidation of contractor employees 

who report safety and other concerns; (2) a subcontractor was terminated after 

reporting safety concerns; and (3) a contractor employee was terminated 

allegedly because she cooperated with GAO. DOE’s reluctance to hold 

contractors accountable may diminish contractor employee confidence in 

mechanisms for raising concerns and seeking whistleblower protection.

View GAO-16-618. For more information, 

contact David C. Trimble at (202) 512-3841 or 

trimbled@gao.gov.

Why GAO Did This Study

DOE relies on contractors to manage 

and operate its facilities and perform its 

missions. Under federal laws, 

regulations, and DOE policies, 

contractors generally must maintain an 

open environment for raising safety or 

other concerns without fear of reprisal. 

GAO was asked to examine whether 

the culture at DOE allows contractor 

employees to raise concerns without 

fear of reprisal. This report examines 

(1) DOE’s efforts to evaluate the 

environment for raising concerns and 

what these evaluations revealed, (2)

factors that may limit the use and 

effectiveness of mechanisms for 

raising concerns or seeking 

whistleblower protections, and (3) the 

extent to which DOE holds contractors 

accountable for unlawful retaliation and 

creating a chilled work environment. 

GAO reviewed DOE’s safety culture 

assessments, analyzed 87 DOE 

whistleblower case files, and 

interviewed DOE officials at 10 of its 

largest sites and headquarters. 

What GAO Recommends

GAO is making six recommendations, 

including that DOE conduct 

independent assessments of the 

environment for raising concerns, 

evaluate whether the whistleblower 

pilot program will mitigate challenges 

with the existing program, expedite 

timeframes for clarifying regulations,

and clarify policies to hold contractors 

accountable. DOE agreed with five 

recommendations. It did not concur 

with the sixth, but outlined steps it 

would take that are consistent with an 

aspect of the recommendation. GAO 

continues to believe the 

recommendation should be fully 

implemented.
Page i GAO-16-618 Whistleblower Protections Need Strengthening

Letter 1

Background 7

DOE Has Taken Steps to Evaluate the Environment for Raising 

Concerns, but These Evaluations Used Flawed and 

Inconsistent Methodologies 14

Several Factors May Limit the Use and Effectiveness of 

Mechanisms for Raising Concerns or Seeking Whistleblower 

Protection 26

DOE Has Infrequently Used Its Authority or Taken Action to Hold 

Contractors Accountable for Unlawful Retaliation and Creating 

a Chilled Work Environment 38

Conclusions 49

Recommendations for Executive Action 51

Agency Comments and Our Evaluation 52

Appendix I Mechanisms for Reporting Concerns or Seeking a Remedy for 

Unlawful Retaliation 56

Appendix II Laws, Regulations, and Policies Governing Safety and Safety 

Enforcement at DOE’s Sites 59

Appendix III Comments from the Department of Energy 61

Appendix IV GAO Contact and Staff Acknowledgments 66

Tables

Table 1: Selected Mechanisms Available to DOE Contractor 

Employees for Raising Concerns or Seeking a Remedy 

for Unlawful Retaliation 56

Table 2: Selected Laws, Regulations, and Policies Governing 

Safety and Safety Enforcement at DOE Sites 59

Contents
Page ii GAO-16-618 Whistleblower Protections Need Strengthening

Abbreviations

DOE Department of Energy

DNFSB Defense Nuclear Facilities Safety Board

ECP Employee Concerns Program

NNSA National Nuclear Security Administration

NRC Nuclear Regulatory Commission

OSHA Occupational Safety and Health Administration

SCWE Safety Conscious Work Environment

WTP Waste Treatment and Immobilization Plant

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Page 1 GAO-16-618 Whistleblower Protections Need Strengthening

441 G St. N.W.

Washington, DC 20548

July 11, 2016

The Honorable Claire McCaskill

Ranking Member

Permanent Subcommittee on Investigations

Committee on Homeland Security and Governmental Affairs

United States Senate

The Honorable Edward J. Markey

United States Senate

The Honorable Ron Wyden

United States Senate

The Department of Energy (DOE) relies on contractors—including private 

companies and universities—to manage and operate its facilities and 

sites and accomplish its missions.1 These missions include maintaining 

the nation’s nuclear weapons stockpile and cleaning up highly radioactive 

wastes and other environmental damage resulting from nearly 50 years of 

producing nuclear weapons at DOE sites. DOE directs the work of its 

contractors to carry out these missions at its sites and oversees the 

safety and quality of operations. To provide assurance that work is 

accomplished effectively and efficiently while maintaining safety 

standards, various laws, regulations, DOE policies, and contracts provide 

a framework for DOE to oversee and evaluate the work of its contractors. 

As part of this framework, daily oversight of contractors is performed by 

DOE personnel at DOE sites across the country and supplemented by 

DOE’s independent oversight program. DOE is unusual among nuclear 

facility operators in that it also acts as its sites’ main safety regulator and, 

as such, is authorized to enforce its own nuclear safety standards and to 

penalize its contractors for failing to comply with those standards. In 

contrast, the Nuclear Regulatory Commission (NRC) and the 

Occupational Safety and Health Administration (OSHA) generally regulate 

 1

The National Nuclear Security Administration (NNSA) is a semiautonomous agency 

within DOE that is tasked with managing the nation’s nuclear security programs. Unless 

otherwise noted, references to DOE in this report include both DOE and NNSA.

Letter
Page 2 GAO-16-618 Whistleblower Protections Need Strengthening

safety of nuclear facilities outside of DOE, based on nationwide standards 

for nuclear safety and worker safety and health.2

Because contractor employees carry out the bulk of DOE’s missionrelated work, the Secretary of Energy and others in DOE have repeatedly 

recognized contractor employees’ disclosures regarding safety and other 

concerns as a principle source of information on conditions that could 

negatively affect the quality or safety of DOE’s operations.3 The Secretary 

and others have also emphasized the importance of fostering an open 

environment at DOE sites, that is, one in which contractor employees feel 

free to raise safety concerns without fear of retaliation. However, longstanding challenges related to DOE’s and contractors’ abilities to provide 

an open environment for raising concerns and protect contractor 

employees from retaliation may impair DOE’s ability to effectively oversee 

its contractors and ensure the quality and safety of its operations. During 

a May 2000 hearing, for example, members of a House subcommittee 

and witnesses noted instances of DOE contractors’ alleged or confirmed 

retaliation against contractor employees who raised safety or other 

concerns.4 The instances occurred despite “zero tolerance” policy reforms 

that the Secretary of Energy announced in, and reaffirmed throughout, 

the 1990s. These zero-tolerance reforms aimed to improve the 

environment for raising concerns and address retaliation against DOE 

contractor employees, after earlier cases of alleged retaliation by DOE 

contractors against whistleblowers had come to the Secretary’s 

attention.5

 2

NRC regulates nuclear safety generally at commercial nuclear power plants but it does 

not generally have regulatory authority over DOE facilities. OSHA regulates worker safety 

at DOE sites where DOE does not exercise regulatory jurisdiction for worker safety and 

health. However, contractors at sites regulated by DOE must also adhere to OSHA 

standards that are incorporated by reference into DOE’s regulations for worker safety and 

health.

3

See, for example, the Secretary’s October 5, 2012, Employee Concerns Program 

Statement, or the Deputy Secretary’s December 9, 2014, memo on the Department of 

Energy Differing Professional Opinion Process.

4

Whistleblowers at Department of Energy Facilities: Is There Really ‘Zero Tolerance’ for 

Contractor Retaliation? Before the H.R. Subcomm. On Oversight and Investigations, 

Comm. On Commerce, 106th Cong. (2000). 

5

For the purposes of this report, we use the term “whistleblower” to describe an employee 

who alleges unlawful retaliation through one of several formal channels including, but not 

limited to, DOE’s 708 program, the Department of Labor, or federal or state court.
Page 3 GAO-16-618 Whistleblower Protections Need Strengthening

More recently, in 2011, the Defense Nuclear Facilities Safety Board 

(DNFSB) reported that DOE had failed to recognize, and likely 

contributed to, a “chilled atmosphere” and a “failed safety culture” at one 

of its largest and costliest cleanup facilities, the Waste Treatment and 

Immobilization Plant (WTP), which is being designed and constructed at 

DOE’s Hanford Site near Richland, Washington.6 DNFSB received an 

allegation in 2010 from a former WTP contractor employee and manager 

claiming that he had been removed from his position in retaliation for 

raising serious safety and technical concerns, which later became the 

subject of litigation. The employee also alleged that efforts by contractor 

and DOE managers to suppress or downplay serious concerns had 

become part of the work environment and safety culture and work 

environment of that facility. DNFSB conducted an investigation and, in 

June 2011, recommended to the Secretary of Energy that DOE take 

immediate actions to improve the safety culture and environment for 

raising concerns. In response to DNFSB’s recommendation, DOE agreed 

to evaluate and improve the safety culture and environment for raising 

concerns at WTP, and to conduct an “extent of condition” review to 

determine whether the safety culture weaknesses observed at WTP 

extended to other defense nuclear facilities, among other things.

Under federal laws, regulations, and DOE and contractor policies, 

contractors generally must maintain an open environment for raising 

safety or other concerns without fear of retaliation and may not retaliate 

against contractor employees who make protected disclosures.7 In 

particular, DOE’s Integrated Safety Management policy and associated 

 6

DNFSB provides independent analysis, advice, and recommendations to the Secretary of 

Energy—in the Secretary’s role as operator and regulator of DOE’s defense nuclear 

facilities—to ensure adequate protection of public health and safety at these facilities. 

DNFSB is not authorized to issue regulations governing DOE or to require DOE to take 

action apart from establishing reporting requirements. Instead, DNFSB uses both informal 

interactions and formal communications with DOE to ensure that DNFSB’s concerns are 

addressed. See, GAO, Defense Nuclear Facilities Safety Board: Improvements Needed to 

Strengthen Internal Control and Promote Transparency, GAO-15-181 (Washington, D.C.: 

Jan. 20, 2015).

7

In general, protected disclosures include disclosures to a DOE official, a member of 

Congress, any other government official who has responsibility for the oversight of the 

conduct of operations at a DOE site, the contractor, or any higher tier contractor, and 

include information that the employee reasonably believe reveals (1) a substantial 

violation of a law, rule, or regulation; (2) a substantial and specific danger to employees or 

to public health or safety; or (3) fraud, gross mismanagement, gross waste of funds, or 

abuse of authority.
Page 4 GAO-16-618 Whistleblower Protections Need Strengthening

guidance state that DOE will hold itself and its contractors accountable for 

safety performance, which includes fostering a strong safety culture and a 

work environment that encourages a questioning attitude by all 

employees and is free of retaliation for raising safety concerns. These 

laws, regulations, and policies also require that various mechanisms be 

made available for DOE contractor employees to raise or elevate 

concerns or seek whistleblower protections—that is, to seek a legal 

remedy for alleged unlawful retaliation for making protected disclosures 

about serious safety hazards, violations of law, or mismanagement, 

among other issues.

In addition to a number of informal mechanisms for raising concerns that 

may be available to contractor employees at DOE sites, employee 

concerns programs (ECP) are available to contractor employees and 

serve as a primary mechanism for raising or elevating concerns outside 

the contractor employees’ chain of command. ECPs are provided by DOE 

for DOE and contractor employees, and may also be provided by 

contractors for their employees. Both DOE and contractor ECPs offer an 

independent avenue for resolving employees’ concerns. Because DOE’s 

ECP is not affiliated with the contractor, it might provide additional 

independence for employees who fear retaliation or who may be reluctant 

to use their contractor-provided ECP. To seek a legal remedy for alleged 

unlawful retaliation for making protected disclosures, such as 

reinstatement in a previously held position of employment or back pay, 

two long-standing mechanisms are available to contractor employees: (1) 

the DOE Contractor Employee Protection Program, referred to as the 708 

program for purposes of this report, and (2) the Whistleblower Protection 

Program at the Department of Labor’s OSHA. In addition, in January 

2013 Congress approved a new 4-year, government-wide enhanced 

whistleblower protection pilot program to provide employees of federal 

contractors a mechanism—or, in DOE’s case, an additional mechanism—

for seeking a legal remedy for alleged unlawful retaliation.8 (See app. I for 

more information on mechanisms available to DOE contractor 

employees.)

You asked us to examine whether DOE has established and maintained a 

culture that allows contractor employees to raise concerns without fear of 

retaliation. This report examines (1) DOE’s efforts to evaluate the 

 8

41 U.S.C. §4712. 
Page 5 GAO-16-618 Whistleblower Protections Need Strengthening

environment for raising concerns and what, if anything, the evaluations 

revealed about this environment’s openness, (2) the factors, if any, that 

may limit the use and effectiveness of mechanisms for raising concerns 

or seeking whistleblower protections under DOE’s Contractor Employee 

Protection Program and the enhanced whistleblower protection pilot 

program, and (3) the extent to which DOE holds contractors accountable 

for unlawful retaliation and creating a chilled work environment.

To examine DOE’s efforts to evaluate the environment for raising 

concerns and what, if anything, the evaluations revealed about this

environment’s openness, we reviewed DOE and DNFSB documents 

associated with DNFSB’s 2011 recommendation that DOE evaluate the 

extent of its safety culture problems. We examined DOE and industry 

guidance on evaluating safety culture and assessed reports from DOEand contractor-led evaluations and independent assessments of the 

safety culture that were conducted in response to the DNFSB’s 

recommendation. We also examined similar evaluations, not associated 

with the recommendation, of DOE’s three largest defense nuclear sites—

the Hanford site in Washington, Los Alamos National Laboratory in New 

Mexico, and Savannah River Site in South Carolina. We assessed the 

methodologies of these evaluations and assessments and found them to 

be sufficiently reliable for our purposes. Specifically, we evaluated the 

methodology section of these evaluations and assessments and 

interviewed knowledgeable officials regarding the implementation of the 

methodologies. We selected these three sites on the basis of their large 

fiscal year 2013 budgets, geographic diversity, and relatively large 

number of high-hazard nuclear facilities.9 We visited the three sites and 

interviewed DOE ECP personnel and ECP personnel from 10 of the 

contractors performing work at those sites. We also interviewed DOE or 

contractor personnel responsible for environment, safety and health at the 

three sites or for providing mechanisms for raising concerns. In addition, 

we interviewed DOE headquarters representatives from DOE’s Safety 

Culture Improvement Panel, and the director of DOE’s Office of 

Environment, Safety, and Health Assessments, which—along with its 

 9

The budgets in fiscal year 2013 were around $2 billion for each of the three sites. 

Compared with other DOE sites, the three sites have relatively large numbers of nuclear 

facilities with the potential for significant on-site consequences. About one-third of the 

approximately 150 such facilities in DOE and NNSA are located at the three sites, 

according to DOE data. We used the fiscal year 2013 budget because it was the most 

recent year for which complete data were available.
Page 6 GAO-16-618 Whistleblower Protections Need Strengthening

predecessor—conducted independent reviews of safety culture at WTP 

and other DOE locations and assessed the quality of other DOE and 

contractor efforts to evaluate the environment for raising concerns.10

To examine the factors that may limit the use and effectiveness of 

mechanisms for raising concerns or seeking whistleblower protections 

under DOE’s Contractor Employee Protection Program and the enhanced 

whistleblower protection pilot program, we reviewed relevant laws, 

regulations, policies, and guidance associated with these mechanisms. 

We also analyzed 87 cases filed through DOE’s 708 program from 10 

sites, filed from fiscal year 2009 through fiscal year 2014.11 We selected 

the 10 sites with the largest fiscal year 2013 budgets that also had 

evidence of at least one 708 case filed. These data are not generalizable 

to all DOE sites. To determine whether there had been any cases filed 

through the 708 program, we used data provided by the DOE and NNSA 

headquarters’ ECP directors to identify the sites that had at least one 

whistleblower complaint filed through the 708 program in fiscal years 

2012 and 2013, the only years for which complete data were available; 

we also contacted the sites to obtain the case files for all 708 cases filed 

from fiscal year 2009 through fiscal year 2014. We compared the 708 

program’s whistleblower protections with the protections under the 4-year 

enhanced whistleblower protection pilot program. We interviewed 

officials, including an administrative judge, from DOE’s Office of Hearings 

and Appeals about the factors that may limit the 708 program’s use and 

effectiveness. We also interviewed DOE’s Whistleblower Protection 

Ombudsman in the Office of Inspector General, which is responsible for 

investigating and adjudicating whistleblower complaints filed by DOE 

contractor employees under the whistleblower protection pilot program, 

about the pilot program and how it compares with DOE’s 708 program. In 

addition, we sent a structured question set to DOE ECP managers for the 

10 largest sites by fiscal year 2014 budget, including the 3 sites we 

 10The Office of Environment, Safety, and Health Assessments is within DOE’s Office of 

Enterprise Assessments, which is responsible for implementing DOE’s independent 

oversight program. Prior to these offices’ creation in June 2014, their predecessor 

organizations in the now-disbanded office of Health, Safety and Security had conducted 

the independent evaluations of safety culture at WTP and other locations and assessed 

the quality of DOE and contractor efforts to evaluate the environment for raising concerns.

11We elected to review cases falling in the 5-year period from 2009 through 2014 to 

ensure that we had a large number of cases to review. Also, the most current information 

at the time we requested the documents was for 2014.
Page 7 GAO-16-618 Whistleblower Protections Need Strengthening

visited. This question set gathered information on caseload and 

disposition of employee concerns, including data on the reasons DOE 

ECP managers may choose to transfer concerns to contractor 

organizations. It also allowed DOE ECP managers an opportunity to 

include additional detail on their responses. The information gathered is 

not generalizable to all ECP managers. At the 3 sites we visited, we 

interviewed DOE and contractor ECP personnel about any factors that 

may limit their ECPs’ use and effectiveness. We also interviewed general 

counsel attorneys, contracting officers, and other contract-management 

officials at the 3 sites and at DOE headquarters about DOE’s 

implementation of the whistleblower pilot program.

To examine the extent to which DOE holds contractors accountable for 

unlawful retaliation and creating a chilled work environment, we reviewed 

DOE’s enforcement regulations and policies, interviewed DOE’s Office of 

Enforcement about its enforcement actions, and examined documents 

related to these actions. We also examined NRC’s whistleblower 

processes to learn more about how other agencies use employee

concerns and allegations of retaliation as barometers for understanding 

the work environment and targeting their enforcement activities. We 

interviewed officials from NRC about their agency’s policies and steps for 

addressing alleged or confirmed whistleblower retaliation at the nuclear 

sites it regulates. We interviewed the general counsel attorneys and 

contract-management officials at the 3 sites we visited and DOE 

headquarters about DOE’s policies and practices for monitoring and 

reimbursing contractors’ legal costs to defend against whistleblower 

retaliation complaints. Additionally, at the 3 sites we visited, we discussed 

instances of potentially chilled work environments with various DOE 

officials and contractor employees, some of whom requested anonymity.

We conducted this performance audit from June 2014 to July 2016 in 

accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

This background section discusses (1) requirements and policies for 

nuclear safety and worker safety and health and DOE’s oversight and 

enforcement responsibilities and (2) mechanisms for raising concerns and 

seeking whistleblower protection.

Background
Page 8 GAO-16-618 Whistleblower Protections Need Strengthening

The Atomic Energy Act, as amended, and other federal laws and DOE 

regulations on nuclear safety management and worker safety and health 

establish DOE’s nuclear safety and worker safety and health 

requirements and authorize DOE to take enforcement actions against 

contractors that violate these requirements (see app. II).12 Additionally, 

federal whistleblower laws and regulations prohibit retaliation against 

DOE contractor employees who make protected disclosures. In general, 

protected disclosures include disclosures to a DOE official, a member of 

Congress, any other government official who has responsibility for the 

oversight of the conduct of operations at a DOE site, the contractor, or 

any higher- tier contractor, and that contain information that the employee 

reasonably believes reveals (1) a substantial violation of a law, rule, or 

regulation; (2) a substantial and specific danger to employees or to public 

health or safety; or (3) fraud, gross mismanagement, gross waste of 

funds, or abuse of authority.13

DOE policies require contractors to maintain an open environment for 

raising safety or other concerns. In particular, DOE’s Integrated Safety 

Management policy and guidance articulate DOE’s expectation that all 

contractor and DOE organizations will integrate safety into all aspects of 

their operations and embrace a strong safety culture, including an 

environment free from retribution.14 This policy and guidance describe 

safety culture as “an organization’s values and behaviors modeled by its 

leaders and internalized by its members, which serve to make safe 

performance of work the overriding priority to protect the workers, public, 

and the environment.” The Integrated Safety Management policy and 

guidance further describe the following expectations of contractor and 

DOE managers:

 12The Atomic Energy Act, as amended, authorizes DOE to issue standards and 

restrictions governing the design, location, and operation of nuclear facilities, in order to 

protect health and to minimize danger to life or property. 42 U.S.C. § 2201(i)(3). DOE’s 

main safety-related and enforceable regulations include 10 C.F.R. part 820, Procedural 

Rules for DOE Nuclear Activities; Part 830, Nuclear Safety Management; part 850, 

Chronic Beryllium Disease Prevention Program; part 851, Worker Safety and Health 

Program; and part 835, Occupation Radiation Protection.

1310 C.F.R. § 708.5.

14DOE, Integrated Safety Management Policy, DOE P 450.4A (Washington, D.C.: Apr. 25, 

2011); Integrated Safety Management, DOE O 450.2, (Washington, D.C.: Apr. 25, 2011); 

and Integrated Safety Management System Guide, DOE G 450.4-1C, (Washington, D.C.: 

Sept. 29, 2011).

Requirements and Policies 

for Nuclear Safety and 

Worker Safety and Health 

and DOE’s Oversight and 

Enforcement 

Responsibilities
Page 9 GAO-16-618 Whistleblower Protections Need Strengthening

• Contractor expectations: Contractors will be held accountable for 

safety performance, which includes fostering an environment that 

encourages a questioning attitude by all employees and that is free of 

retribution. These policies and guidance further define “open 

communication and fostering an environment free from retribution” as 

one of several key attributes of a strong safety culture, and encourage 

leaders to proactively detect situations that could result in retaliation 

and take effective action to prevent a chilling effect.15

• DOE expectations: DOE managers are responsible for evaluating 

and developing strategies to improve the safety culture as part of their 

overall responsibility to ensure adequate safety in contractor 

management of DOE facilities while meeting mission goals. This 

includes responsibility to ensure that appropriate requirements are 

incorporated into contracts; oversee compliance; assess contractor 

performance against established performance measures; analyze 

relevant trends; and obtain relevant operational information for use as 

feedback to improve safety.

At DOE sites, contracting officers direct the performance of DOE’s 

contractors, while safety experts and others conduct day-to-day 

contractor oversight. This day-to-day oversight is supplemented by DOE’s 

independent oversight program and by safety monitoring from outside 

groups, such as DNFSB, which is congressionally chartered.16 The Office 

of Enterprise Assessments is responsible for implementing DOE’s 

independent oversight program.17 Within this office, the Office of 

 15In addition, DOE’s Integrated Safety Management policies and guidance identified 15 

other key attributes of a strong safety culture, such as establishing clear expectations and 

accountability for safety; engaging employees and workers in work planning and 

improvement; and encouraging reporting of errors and problems to foster organizational 

learning and improve safety. According to DOE’s guidance, the safety culture attributes 

were jointly developed by DOE and contractors based on research and experience from 

commercial nuclear industry.

16The DNFSB was established by statute in 1988 to provide independent analysis and 

recommendations to DOE to ensure adequate protection of public health and safety at 

defense nuclear facilities.

17DOE Order 227.1A, Independent Oversight Program, establishes the requirements and 

responsibilities of DOE’s Independent Oversight Program, while DOE Policy 226.1B, 

Department of Energy Oversight Policy, and the associated DOE order and guidance

provide DOE’s overall framework for conducting oversight, which includes “robust”

assurance systems by contractors, effective oversight by DOE line management, and 

independent oversight.
Page 10 GAO-16-618 Whistleblower Protections Need Strengthening

Environment, Safety, and Health Assessments carries out independent 

assessments of nuclear safety, worker safety and health, and other 

areas, and the Office of Enforcement carries out the department’s 

regulatory enforcement of nuclear safety and worker safety and health, as 

follows:

• DOE’s Office of Environment, Safety, and Health Assessments:

Assessments conducted by this office may include examining the 

adequacy and performance of sites’ safety programs and of plans for 

correcting known deficiencies, as well as the effectiveness of DOE’s 

oversight. Subject matter experts and others in the assessments 

office, with input from others in DOE, identify assessment needs.

• DOE’s Office of Enforcement: The Price-Anderson Amendments 

Act,

18 section 3173 of the Bob Stump National Defense Authorization 

Act for Fiscal Year 2003, and DOE regulations19 authorize the Office 

of Enforcement to take action with respect to contractor violations of 

DOE’s nuclear safety or worker safety and health requirements.20

Under DOE’s enforcement process, the Office of Enforcement may 

investigate potential safety violations and pursue one of several 

possible enforcement outcomes, including assessing civil penalties or 

entering into a settlement agreement with a contractor. The 

enforcement office receives information about potential safety 

violations from multiple sources. For example, contractor self-reported

information comes primarily from DOE’s Noncompliance Tracking 

System—a centralized, web-based system that allows DOE’s 

contractors to voluntarily self-report noncompliance with safety 

requirements. Contractors’ self-reporting is encouraged but generally 

not required, according to DOE guidance.

 18Pub. L. No. 100-408, 102 Stat. 1066 (1988).

19E.g., 10 C.F.R. parts 820 and 851.

20The National Defense Authorization Act for Fiscal Year 2000, which established the 

NNSA, precludes DOE employees, except the Secretary and Deputy Secretary, from 

issuing direction to NNSA employees or NNSA contractors when they are carrying out any 

function of the NNSA. Accordingly, DOE’s Office of Enforcement is not authorized to take 

enforcement action against NNSA contractors. These responsibilities are instead 

exercised by the NNSA administrator. 10 C.F.R. § 851.45. 
Page 11 GAO-16-618 Whistleblower Protections Need Strengthening

DOE’s worker safety and health regulations require DOE contractors to 

provide mechanisms for workers to report safety concerns without fear of 

retaliation.21 Primary mechanisms for DOE contractor employees to raise 

concerns outside their chain of command are the ECPs that DOE and 

contractors provide. The primary mechanisms for DOE contractor 

employees to seek whistleblower protection—that is, to seek a legal 

remedy for alleged unlawful retaliation—are DOE’s 708 Program, OHSA’s 

Whistleblower Protection Program, and the 4-year enhanced 

whistleblower protection pilot program. The following provides additional 

information about (1) DOE and contractor ECPs and (2) mechanisms for 

seeking whistleblower protection:

Employee Concerns Programs: DOE’s ECP—which is available to both 

DOE and contractor employees at DOE sites—is governed by DOE Order 

442.1A and associated guidance.22 Under DOE’s ECP order, contractors 

must assist DOE with resolving employee concerns, but neither the ECP 

order nor DOE’s safety regulations require contractors to provide their 

own ECPs. However, some contracts require contractors to provide such 

programs, while other DOE contractors voluntarily provide an ECP or 

similar program for their employees. DOE’s ECP is administered by 

DOE’s Office of the Associate Under Secretary for Environment, Health, 

Safety and Security, which is responsible for developing DOE’s safety 

standards and safety-related programs. DOE’s ECP was previously under 

the Office of Economic Impact & Diversity but was relocated to the 

Associate Under Secretary office, effective January 1, 2016. DOE ECP 

managers are located at various DOE site offices or other DOE field 

locations and are responsible for implementing the program locally and 

ensuring that concerns are processed as required by the ECP Order. 

These responsibilities include: (1) publicizing ECP processes, employee 

rights and responsibilities to report concerns through these processes, 

and management’s intolerance for retaliation against employees who 

have reported concerns; (2) deciding which concerns the ECP office 

should seek to resolve, which warrant referral or transfer to another office, 

and which warrant no further action; (3) assisting in evaluation and 

resolution of employee concerns; (4) coordinating with DOE contracting 

 2110 C.F.R. 851.20(a)(6).

22DOE, Employee Concerns Program, DOE G 44.21-1, (Washington, D.C.: June 6, 2011); 

and Employee Concerns Program Guide, DOE O 442.1A, (Washington D.C.: Feb. 1, 

1999). 

Mechanisms for Raising 

Concerns and Seeking 

Whistleblower Protection
Page 12 GAO-16-618 Whistleblower Protections Need Strengthening

officers to determine the existence of contract requirements for the 

establishment of contractor ECPs and the means and criteria by which 

such contractor ECPs will be evaluated; and (5) advising appropriate 

levels of management when actions to resolve complaints or correct 

identified deficiencies are ineffective or untimely.

Whistleblower Protection: DOE contractor employees seeking a legal 

remedy for alleged unlawful retaliation under DOE’s 708 Program, the 

OSHA Whistleblower Protection Program, or the 4-year enhanced 

whistleblower protection pilot program must establish that they made a 

protected disclosure. The details of what constitutes a protected 

disclosure vary among the programs. In addition, the specific processes 

for filing a complaint and obtaining whistleblower protections may differ 

for the three whistleblower programs in various ways, including as 

follows:

• 708 Program: This program is governed by DOE regulations at 10 

C.F.R. Part 708. Contractor employees seeking a remedy under the 

program generally file their complaint with DOE’s ECP.23 ECP officials 

are to screen the complaints and forward them to DOE’s Office of 

Hearings and Appeals, which is responsible for investigating the 

complaints if the employees filing the complaints request an 

investigation, and adjudicating them through a hearings and appeals 

process. The administrative judge may determine that an act of 

retaliation occurred and order appropriate relief or may deny the 

complaint.24 Complaints may also be dismissed on technical grounds, 

such as the office’s lack of jurisdiction to hear the employee’s 

complaint. The employee or the contractor can appeal adverse 

decisions to the Director of the Office of Hearings and Appeals. If 

dismissed by the Director of the Office of Hearings and Appeals, the 

 23The complaint does not need to be in any specific form, but it must contain the following: 

(1) A statement specifically describing the alleged retaliation and (2) the disclosure, 

participation, or refusal that the complainant believes gave rise to the retaliation. 10 C.F.R.

§ 708.12(a).

24The employee who files a complaint has the burden of establishing by a preponderance 

of the evidence that he or she made a disclosure, participated in a proceeding, or refused 

to participate, and that such act was a contributing factor in one or more alleged acts of 

retaliation against the employee by the contractor. Once the employee has met this 

burden, the burden shifts to the contractor to prove by clear and convincing evidence that 

it would have taken the same action without the employee’s disclosure, participation, or 

refusal. 10 C.F.R. § 708.29.
Page 13 GAO-16-618 Whistleblower Protections Need Strengthening

dismissal may be appealed to the Secretary of Energy, in accordance 

with the Part 708 regulations.25 During the 708 process, the employee 

can withdraw his or her complaint, can agree to participate in 

mediation, or enter into a settlement agreement with the contractor.

• OSHA Whistleblower Protection Program: Complaints filed under 

this program follow a hearings and appeals process before an 

administrative law judge. Unlike the 708 Program, however, under 

OSHA’s process, DOE contractor employees may generally file suit in 

federal district court if OSHA has not ruled on or dismissed the 

complaint within a year of its filing.

• Enhanced whistleblower protection pilot program: Complaints 

filed under the enhanced whistleblower protection pilot program are 

investigated by the DOE Inspector General and, in contrast to the 708 

and OSHA programs, do not involve formal administrative hearings. 

Under the pilot program, the Inspector General submits its 

investigation findings to the whistleblower, the contractor, and the 

Secretary of Energy. Should the Inspector General find in favor of the 

whistleblower, the Secretary of Energy may issue an order of remedy, 

which is enforceable in federal court. The contractor may appeal such 

an order in federal court.

In addition to these government agency programs, contractor employees 

may, in some circumstances, be able to challenge the alleged unlawful 

retaliation directly in a state or federal court or seek redress through their 

respective labor unions or from another nonfederal government entity.

 25The appeals process for dismissals on technical grounds is described in 10 C.F.R. §§ 

708.18 - 708.19. The appeals process for decisions on the merits is described in 10 

C.F.R. §§ 708.32 - 708.35.
Page 14 GAO-16-618 Whistleblower Protections Need Strengthening

Fostering an environment that encourages a questioning attitude by all 

employees and is free of retribution is an important aspect of DOE’s 

Integrated Safety Management policy and guidance, and DOE has taken 

steps to evaluate this environment. Specifically, in 2012 through 2014, 

DOE conducted a coordinated review of safety culture across multiple 

sites—known as an “extent of condition” review—as well as various ad 

hoc assessment surveys and independent reviews aimed at evaluating 

the environment for raising concerns. However, these evaluations used 

flawed and inconsistent methodologies and drew conclusions that may 

have overstated the openness of the environment for raising concerns.

DOE’s effort to evaluate the environment for raising concerns included a 

coordinated review of safety culture—that is, an “extent of condition”

review—to determine whether the safety culture weaknesses observed in 

2011 by DNFSB at WTP extended to other defense nuclear facilities. 

During the same time frame, at two of the three sites we visited—

Savannah River and Hanford—DOE and its contractors also conducted 

various independent reviews and ad hoc self-assessment surveys aimed 

at evaluating the environment for raising concerns.

DOE’s extent of condition review: In December 2011, the Secretary of 

Energy approved an implementation plan that described the department’s 

planned actions for responding to recommendations in the 2011 DNFSB 

report on the safety culture at WTP—including the recommendation to 

conduct an extent of condition review. DNFSB accepted DOE’s

implementation plan in March 2012. DOE’s extent of condition review was 

a coordinated effort involving various DOE organizations and contractors, 

including the Office of Environment, Safety, and Health Assessments 

within the Office of Enterprise Assessments. As discussed more 

specifically below, the extent of condition review generally consisted of 

four components: (1) independent reviews of safety culture; (2) safety 

conscious work environment (SCWE) self-assessments;26 (3) an 

 26SCWE is the aspect of safety culture that relates to ensuring an open environment for 

raising concerns without fear of retaliation, according to guidance from DOE and 

contractors and a Nuclear Regulatory Commission policy statement.

DOE Has Taken 

Steps to Evaluate the 

Environment for 

Raising Concerns, 

but These 

Evaluations Used 

Flawed and 

Inconsistent 

Methodologies

Efforts to Evaluate the 

Environment for Raising 

Concerns Included a 

Coordinated Review of 

DOE’s Safety Culture and 

Various Ad Hoc 

Assessments and 

Independent Reviews
Page 15 GAO-16-618 Whistleblower Protections Need Strengthening

independent review of the SCWE self-assessments; and (4) a 

consolidated report summarizing and assessing the results of the 

independent reviews and SCWE self-assessments.27

• Independent reviews of safety culture: From 2012 through 2013, 

the predecessor of DOE’s Office of Environment, Safety, and Health 

Assessments conducted independent reviews of the safety culture of 

four construction projects at four DOE sites and, at a fifth site, 

conducted a site-wide independent review of safety culture.28 The 

construction projects reviewed were Idaho Sodium Bearing Waste 

Treatment Project; Los Alamos National Laboratory’s Chemistry and 

Metallurgy Research Replacement Project; the Savannah River Site’s 

Salt Waste Processing Facility; and the Y-12 National Security 

Complex’s Uranium Processing Facility Project. The site-wide review 

was for the Pantex Plant in Texas.29 DOE’s methodology for the 

independent reviews was developed in consultation with outside 

experts in safety culture assessment. The methodology included 

interviews, focus groups, document reviews, and other approaches for 

assessing the safety culture. The methodology also involved 

surveying DOE and contractor employees about various aspects of 

safety culture, including the employees’ ability to report safety 

concerns without fear of retaliation.

 27As described in DOE’s implementation plan and other documents, the extent of 

condition review also included tasks other than evaluating DOE’s safety culture, such as 

issuing a secretarial memo to reinforce the safety culture attributes in DOE’s Integrated 

Safety Management policies and guidance, and developing processes and controls for 

sustaining a robust safety culture at sites.

28Prior to a reorganization in 2014, the predecessor to DOE’s Office of Environment, 

Safety, and Health Assessments was housed within the Office of Enforcement and 

Oversight in the Office of Health, Safety and Security. During the reorganization, the 

predecessor offices were disbanded, and responsibility for independent oversight and 

enforcement was placed in a new organization—the Office of Enterprise Assessments—

which includes the Office of Environment, Safety, and Health Assessments; the Office of 

Enforcement; and other sub-offices.

29The Pantex Plant was not originally slated for independent assessment during the extent 

of condition review. However, DOE’s Office of Environment, Safety, and Health 

Assessments added the site after learning about alleged retaliation at the site related to 

contractor employees raising safety concerns.
Page 16 GAO-16-618 Whistleblower Protections Need Strengthening

• SCWE self-assessments: In 2013 and 2014, the DOE organizations 

and contractors at 12 sites conducted SCWE self-assessments, 30

using various approaches—such as employee surveys, interviews, 

and workplace observations. SCWE is the aspect of safety culture 

that relates to ensuring an open environment for raising concerns 

without fear of retaliation, according to guidance from DOE and 

contractors and a Nuclear Regulatory Commission policy statement. 

To guide this effort, DOE developed guidance, including lines of 

inquiry and self-assessment techniques.

• Independent review of the SCWE self-assessments: From May 

through December 2013, the predecessor of DOE’s Office of 

Environment, Safety, and Health Assessments evaluated the quality 

of the SCWE self-assessments and, in February 2014, issued a report 

on its evaluation.31

• Consolidated report: In May 2014, DOE issued a consolidated 

report on its safety culture extent of condition review, which provides 

an analysis of the results of DOE’s independent reviews and SCWE 

self-assessments and recommends actions for improving safety 

culture management.32

Ad hoc self-assessments and independent reviews: At two of the 

three sites we visited—Savannah River and Hanford—DOE or 

contractors conducted or organized various other ad hoc selfassessments and independent reviews. These reviews were generally 

similar in purpose to the assessments and evaluations conducted for the 

extent of condition review in that they aimed to assess the safety culture 

or the environment for raising concerns. The reviews may have also 

involved methodological approaches similar to those used for the extent 

 30These sites are (1) the Savannah River Site (S.C.); (2) Los Alamos National Laboratory

(N.Mex.); (3)Sandia National Laboratories (N.Mex. and Calif.); (4) Lawrence Livermore 

National Laboratory (Calif.); (5) Nevada National Security Site; (6) Y-12 National Security 

Complex (Tenn.); (7) Pantex Plant (Tex.); (8) Idaho Site (Environmental Management 

programs); (9) Hanford Site (Wash.); (10) Waste Isolation Pilot Plant (N.Mex.); (11) Oak 

Ridge Reservation (Tenn.); and (12) Pacific Northwest National Laboratory (Wash.).

31DOE, Office of Enforcement and Oversight, Independent Oversight Evaluation of Line 

Self-Assessments of Safety Conscious Work Environment (Washington, D.C.: February 

2014). 

32DOE, Consolidated Report for Defense Nuclear Facilities Safety Board 

Recommendation 2011-1, Actions 2-8 and 2-9 (Washington, D.C.: May 2014).
Page 17 GAO-16-618 Whistleblower Protections Need Strengthening

of condition review evaluations, including employee surveys and focus 

groups, and, in some cases, may have been conducted while the extent 

of condition review was underway. However, the ad hoc reviews were 

generally stand-alone efforts, separate from the extent of condition review 

and from one another. They included, for example, several DOE- and 

contractor-led reviews at the Hanford WTP, including a series of 

independent reviews of WTP’s safety culture by the Office of 

Environment, Safety, and Health Assessments, or its predecessor, as 

well as safety culture surveys of WTP employees conducted by the WTP 

contractor in 2005 through 2014 (except 2010). The ad hoc reviews also 

included other safety culture or SCWE evaluation efforts, such as a 

Savannah River Site contractor’s September 2011 survey to assess the 

ability of certain construction labor employees to raise safety concerns 

without fear of retaliation, and a more broadly focused “organizational 

climate” survey of DOE and contractor employees at the Hanford site, 

which—according to a report from the study and a DOE official at 

Hanford—was organized by DOE officials at the site and administered in 

June 2012 by a hired consultant.

Some of the evaluations conducted for DOE’s extent of condition review, 

as well as various ad hoc self-assessments and independent reviews, 

used flawed or inconsistent methodologies and sometimes drew 

conclusions that overstated the openness of the environment for raising 

concerns.

The independent evaluation of safety culture at five sites—which, as we 

noted earlier, was part of DOE’s extent of condition review of non-WTP 

facilities and sites—revealed problems with the environment for raising 

concerns. For example, on the electronic survey associated with four of 

these evaluations, 60 to 70 percent of contractor employee survey 

respondents agreed with the statement “management does not tolerate 

Some Evaluations Used 

Flawed and Inconsistent 

Methodologies and Drew 

Conclusions That May 

Overstate the Openness 

of the Environment for 

Raising Concerns

DOE’s Extent of Condition 

Review
Page 18 GAO-16-618 Whistleblower Protections Need Strengthening

retaliation of any kind for raising concerns.”33 This means that 30 to 40 

percent of respondents did not agree with the statement. The response to 

this survey question was generally more positive for one of the five 

evaluations—with 65 to 78 percent of respondents agreeing with the 

statement.34 The methodology and approach DOE used to perform its 

independent evaluations of safety culture at five sites was generally 

sound and consistently applied at diverse sites. In particular, the 

employee surveys—which were conducted and analyzed by external 

safety culture experts—asked consistent questions, generally achieved 

high response rates appropriate for drawing conclusions about 

employees’ perceptions of the work environment, and reports from these 

evaluations provided detailed information on scope and methodological 

approaches used and the results. For example, response rates for three 

of the five employee surveys done in connection with DOE’s independent 

review were between 81 and 92 percent, which, according to reports from 

the evaluations, were “acceptable” or “very acceptable” for drawing 

conclusions about the employees’ perceptions and attitudes about the 

work environment. Response rates for the remaining two surveys were 62 

and 68 percent—which, according to DOE’s report summarizing the 

results of these assessments, was “acceptable” for drawing such 

conclusions but “lower than desired.”

In contrast, DOE determined that the SCWE self-assessments conducted 

at 12 sites for the extent of condition review were flawed in many cases 

and may have overstated the openness of the environment for raising 

concerns. Specifically, in its February 2014 report on the quality of SCWE 

self-assessments, the predecessor to DOE’s Office of Environment, 

Safety, and Health Assessments found that the quality of surveys and 

other methodologies used, and the analysis of the results, varied widely, 

significantly reducing confidence in the conclusions of many of the selfassessments. As a result, caution should be used in drawing firm 

 33The percentage of survey respondents agreeing with the statement for each of the four 

evaluations is a follows: Sodium Bearing Waste Treatment Project (60 percent); the 

Savannah River Site’s Salt Waste Processing Facility (60 percent); and the Y-12 National 

Security Complex’s Uranium Processing Facility Project (70 percent), and the Pantex 

Plant (65 percent).

34The survey results for Los Alamos National Laboratory’s Chemistry and Metallurgy 

Research Replacement Project represent respondents from three contractors involved in 

the project (65 percent, 75 percent, and 78 percent of respondents agreed with the 

statement “management does not tolerate retaliation of any kind for raising concerns”).
Page 19 GAO-16-618 Whistleblower Protections Need Strengthening

conclusions about the state of the SCWE or safety culture across the 

DOE complex, according to DOE’s report.

While DOE’s February 2014 report noted positive attributes of many of 

the self-assessments it examined, the report also identified widespread 

problems with the surveys and the other approaches used. According to 

DOE’s report, surveys can be considered valid and reliable only if they 

are adequately developed and appropriately administered, with adequate 

measures to ensure anonymity and extensive testing to determine survey 

reliability and validity. 35 However, DOE’s report found that the SCWE 

self-assessment surveys did not consistently apply assessment 

methodologies and were not designed to ensure valid and credible 

results, as illustrated by the following findings:

• Many surveys were developed by personnel with little survey 

experience, and surveys were frequently not validated to ensure 

accuracy, reliability, and repeatability.

• In some cases, survey administration methods—such as computer 

sign-on screens bearing a standard disclaimer that activity may be 

monitored—led some participants to question the anonymity of the 

survey.

• Some questions contained leading or biased phrases, potentially 

skewing the results, and contained “double-barreled” questions that 

asked respondents to provide a single response to a question 

addressing more than one concept.

• Survey participation rates were sometimes low, and several of the 

organizations conducting the self-assessments did not understand the 

significance of getting a high participation rate to increase the 

confidence level that the sample reflects the whole population. In one 

case, a 25 percent response rate was perceived as being a good 

response rate. However, according to the report, a response rate that 

low reduces confidence in the results and could produce a large 

 35According to the report, the term “reliability” relates to whether the survey yields the 

same answers at different times (i.e., repeatability), and whether the questions within it 

measure the same thing (only applicable if the team is administering a set of questions to 

measure a single issue). The term “validity” relates to whether the survey measures the 

factors it is intended to measure. If a survey is not reliable over time, it cannot be valid, 

because the results will vary depending on when it is administered.
Page 20 GAO-16-618 Whistleblower Protections Need Strengthening

nonresponse bias–particularly without additional analysis to ensure 

that employees participating in the survey did not differ significantly 

from those who did not participate.

DOE cited similar problems with the other methodological approaches 

used in the self-assessments, including, for example, leading or biased 

interview questions and problems assuring confidentiality during 

interviews or providing an adequately “safe space” for employees to give 

candid responses during focus groups.

In addition, many reports from the self-assessments provided limited 

information about the survey response rates achieved or the data and 

analysis used to support the results, according to the February 2014 

report and our analysis. Moreover, the overall conclusions in many of the 

self-assessment reports did not accurately reflect the information in the 

data and analysis sections of the assessments, according to DOE’s 

report. In some cases, negative results were presented with a statement 

rationalizing or minimizing the issue, rather than indicating a need to find 

out more about the issue and resolve it. In other cases, problems were 

not mentioned in the conclusions or executive summaries, which, 

according to the report, are sections that senior management is most 

likely to read. In particular, for several of the self-assessment reports, 

discussions in these sections minimized or did not take into account 

interview comments or other data, which reflected employee concerns 

about retaliation or provided evidence of possible chilled work 

environments. In doing so, these self-assessment reports may have 

drawn overly positive conclusions about the SCWE or safety culture and 

did not fully address the potential concerns identified during the selfassessments, according to DOE.

Several statements in the February 2014 report attributed some of the 

methodological or reporting problems to weaknesses in DOE 

headquarters communications about the self-assessment process and 

weaknesses in the SCWE self-assessment guidance document,36 which 

DOE had developed as part of the extent of condition review. The report 

also attributed problems to the DOE and contractor organizations’

inexperience with conducting SCWE self-assessments. As a result, the 

February 2014 report recommended that DOE take additional actions to 

 36DOE, Safety Conscious Work Environment Self-Assessment Guidance, revision G 

(undated).
Page 21 GAO-16-618 Whistleblower Protections Need Strengthening

ensure that future self-assessments will provide an unbiased and 

accurate assessment of the status of the SCWE at DOE sites and 

organizations, with a particular focus on improving headquarters 

communication and the guidance and tools that are used at the site level. 

In line with the report’s recommendation to improve DOE’s selfassessment guidance, DOE officials we interviewed from the Office of the 

Associate Under Secretary for Environment, Health, Safety and Security 

told us that a DOE working group is developing metrics for monitoring 

DOE’s SCWE and safety culture. The officials also said that a report on 

the effort will include guidance for DOE officials and contractors at sites 

for conducting SCWE and safety culture evaluations locally. However, 

these officials said that contractors will likely not be required to follow the 

guidance.

Notwithstanding the problems DOE identified in its February 2014 report, 

3 months later, DOE downplayed the significance of the flawed SCWE 

self-assessments. Specifically, in May 2014, DOE issued a consolidated 

report on the results of its extent of condition review, which analyzed the 

results of the DOE independent review of safety culture and the SCWE 

self-assessments. The consolidated report noted that there was 

considerable variability in the SCWE self-assessments’ methodologies, 

reporting, and quality, but it did not disclose the significance of these 

differences. For example, unlike the February 2014 report, the 

consolidated report did not advise caution in drawing firm conclusions 

from the self-assessments about the state of SCWE or safety culture 

across the entire DOE complex. Instead, the consolidated report said that 

“the self-assessments provided valuable insights about the current state 

of SCWE within the assessed organizations” and that the SCWE selfassessments and the independent reviews at safety culture at the five 

sites “yielded information on the status of SCWE and safety culture in 

general.”

Notably, the report did not recommend that DOE assume responsibility 

for conducting independent reviews or ensuring that contractors take 

appropriate action in response to evaluation results. Instead, DOE’s May 

2014 report recommended that, among other things, DOE (1) establish a 

Safety Culture Improvement Panel and (2) evaluate the language on 

safety culture and SCWE in its contracts for consistency, and revise 

DOE’s existing contract language on Integrated Safety Management so 

that it clearly references safety culture. In implementing these 

recommendations, DOE plans to issue guidance, give advice, and 

encourage contractors to initiate programs to monitor and improve the 

environment for raising concerns. In doing so, DOE plans to rely on its 
Page 22 GAO-16-618 Whistleblower Protections Need Strengthening

contractors to conduct evaluations and take appropriate action in 

response to evaluation results. Specifically, in response to the May 2014 

report, DOE has taken the following steps:

• In May 2015, DOE approved a new Safety Culture Improvement 

Panel, which began meeting in July 2015. According to its charter, the 

new panel establishes a permanent, high-level organization devoted 

to promoting safety culture and will develop a means for monitoring 

DOE’s safety culture, among other activities. In February and April 

2016, DOE officials from the panel, including the co-chair, told us that 

the panel has been evaluating DOE and industry sources for possible 

metrics that could be used at DOE sites to monitor safety culture. The 

officials said that indicators, such as response times to carry out 

corrective actions or trends in employee concerns, were among the 

possible metrics being considered. Also, the officials said that 

information from surveys and other evaluations would be used to help 

monitor safety culture but that this information would likely come from 

periodic self-assessments at sites—possibly similar to those 

conducted for the extent of condition review—rather than independent 

assessments.

• In addition, the panel has been evaluating DOE’s contracts and is 

developing contract language aimed at encouraging contractors to 

initiate programs for monitoring and improving their safety culture and 

SCWE or to maintain existing efforts, according to the officials and the 

panel’s meeting minutes. However, panel officials told us that the 

panel serves in an advisory role and does not have authority to 

require sites to adopt practices or use information that it generates. 

For example, they said that DOE contracting officers will not be 

required to include the contract language the panel develops into new 

or existing contracts.

As of April 2016, the panel’s assessments of possible metrics and 

contract language were still under development or being reviewed, 

according to the panel officials.

Moreover, it is unclear that these efforts will address the concerns raised 

by DNFSB in its March 2012 letter to the Secretary of Energy accepting 

DOE’s implementation plan for the extent of condition review. In its letter, 

DNFSB stressed the need for independent viewpoints and specialized 

expertise in safety culture assessments and stated that—if the SCWE 

self-assessments did not prove to be a reliable indicator of the safety 

culture’s status—DOE must be prepared to perform a broader suite of 

independent safety culture reviews. However, officials from the Office of 
Page 23 GAO-16-618 Whistleblower Protections Need Strengthening

Environment, Safety, and Health Assessments and the Office of 

Enterprise Assessments told us that they had no plans to conduct such 

reviews and determined it would be more appropriate for contractors to 

evaluate the safety culture locally. These officials also told us that they 

believed the self-assessments would improve over time, as contractors 

became more comfortable with the concepts of SCWE and safety culture, 

which the officials said were relatively new in DOE and, unlike other 

safety-related assessments, involved measuring “soft” management 

concepts, such as employee satisfaction and organizational culture.

The ad hoc contractor self-assessments and DOE independent reviews 

conducted at the Hanford and Savannah River sites did not use a 

consistent or rigorous approach and may have overstated the openness 

of the environment for raising concerns. As noted above, these reviews 

were similar in purpose and methodology to evaluations conducted for the 

extent of condition review but were separate from that review and from 

one another. As with the SCWE self-assessments conducted for the 

extent of condition review, the ad hoc and independent reviews also had 

flaws, including the following:

• The execution of some of the self-assessment surveys may not have 

had high enough response rates to draw conclusions about the 

openness of DOE’s environment for raising concerns—in part 

because DOE’s self-assessment guidance does not establish an 

acceptable response rate. In particular, while reports from some ad 

hoc or independent reviews identified response rates of 67 percent or 

even 80 percent, others reported response rates as low as 19 percent 

or as low as about 5 percent, which may not be sufficient for drawing 

valid conclusions about openness of the environment for raising 

concerns. In a report summarizing the results of a self-assessment 

survey at the Savannah River Site, the contractor noted that concerns 

over anonymity may have contributed to what it characterized as a 

low response rate of 18 out of 97 employees (19 percent). According 

to the report, within hours of initiating the survey, the response rate 

dropped after an employee questioned whether the electronic folder 

used to store the completed surveys would protect participants’

anonymity.

• DOE officials and a contractor employee at the Hanford Site told us 

that concerns about anonymity and other issues may have also 

lowered the response rate or reduced the quality of the data collected 

during that site’s 2012 organizational climate survey. A contractor 

employee involved with designing the survey told us that DOE’s first 

Ad Hoc Self-Assessments and 

Independent Reviews
Page 24 GAO-16-618 Whistleblower Protections Need Strengthening

attempt to deploy the survey was aborted after it was discovered that 

participant identities could be linked to their responses. When the 

survey was redeployed, the contractor employee heard from 

participants that some managers were pressuring employees to give 

favorable responses, among other issues. In addition, DOE officials at 

the Hanford site and the contractor employee involved with the survey 

effort told us that a significant portion of the responses had been 

deleted before they could be fully analyzed. According to the DOE 

officials and the contractor employee, the consultant that DOE hired to 

administer the survey destroyed the narrative comment responses, 

possibly in an effort to respond to concerns raised about maintaining 

anonymity. Although the consultant provided DOE a summary of the 

narrative responses, the DOE officials said the summary was not very 

useful for evaluating the environment for raising concerns.

Further complicating DOE’s ability to evaluate the environment for raising 

concerns, DOE has not provided clear instructions to its site officials or 

contractors regarding what constitutes a positive or negative result and 

has changed the wording of a key survey question on one of its 

independent assessments, as discussed below:

• In some cases, DOE’s or contractors’ reports that summarized their 

evaluation efforts may have overstated the openness of the 

environment for raising concerns—in part, because DOE did not 

provide its site officials or contractors with clear instructions to define 

what constitutes a positive or negative result. For example, in its 

2012, 2013, and 2014 surveys of WTP employees, the WTP 

contractor drew positive conclusions about the environment for raising 

concerns, based on survey results that indicated that 63 to 74 percent 

of respondents agreed with the statement that “I feel I can raise 

concerns and/or challenge people at any level in my organization 

without fear of the consequences.” In contrast, a June 2014 report 

from an independent review of WTP’s safety culture drew less positive 

conclusions based on similar results. Specifically, 72 to 80 percent of 

the WTP contractor employees participating in the survey agreed that 

“Management does not tolerate retaliation of any kind for raising 

concerns.” On the basis of these results, the Office of Environment, 

Safety and Health Assessments designated this area as “in need of 

attention.”

• During its most recent independent review of safety culture at WTP in 

2015, DOE’s Office of Environment, Safety, and Health Assessments 

changed the wording of a key survey question about contractor 

employees’ ability to raise concerns without fear of retaliation from the 
Page 25 GAO-16-618 Whistleblower Protections Need Strengthening

wording it used in its 2014 survey. According to DOE’s report from the 

independent review, the 2014 survey asked WTP contractor 

employees the question “Does management tolerate retaliation of any 

kind for raising concerns?”—with possible responses on a 5-point 

scale ranging from 1 (“not at all”) to 5 (“to a great extent”). The 2015 

survey used the same scale for the responses but reworded the 

question in the form of a statement, as follows: “Retaliation for raising 

concerns is not tolerated by management.” The wording change, 

which DOE officials said was inadvertent, conveyed the opposite 

meaning of the 2014 question, making it difficult to compare the 2015 

responses to the responses received in the previous year. 

Consequently, in order to compare 2014 results to 2015 results, the 

Office of Environment, Safety, and Health Assessments had to 

reverse and recalculate the scoring of the 2014 question to attempt to 

make the two years’ results comparable. The report also notes that 

the office “must be very cautious in interpreting any changes in 

responses” because employees may not have interpreted the 

question in the same way that they had in prior years.

The federal standards for internal control state that management should 

establish and operate monitoring activities to monitor the internal control 

system and evaluate the results.37 Because DOE relies on contractors to 

carry out its missions—to include activities that support DOE’s policy for 

fostering an environment that is free of retaliation for raising safety 

concerns—the effectiveness of DOE’s internal control system partly 

depends on the effectiveness of the activities and control environments 

established by its contractors. According to DOE’s Integrated Safety 

Management policy, DOE expects all organizations to embrace a strong 

safety culture and create a work environment that encourages a 

questioning attitude by all employees. To help monitor the effectiveness 

of this policy, DOE has relied on contractor self-assessments and 

independent assessments. However, given that contractor selfassessments proved to be an unreliable measure of contractor 

employees’ willingness to raise concerns, according to the DNFSB, a 

broader suite of independent safety culture reviews is needed. Without 

this, DOE does not have a reliable basis to judge whether policies and 

 37GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 1, 1999). GAO has revised and reissued Standards for Internal 

Control in the Federal Government, with the new revision effective as of October 1, 2015. 

GAO-14-704G (Washington, D.C.: Sept. 2014).
Page 26 GAO-16-618 Whistleblower Protections Need Strengthening

controls that are intended to create an open environment for raising 

safety or other concerns are effective.

The organizational placement and practices of some ECPs may 

compromise their independence, which may limit their use and 

effectiveness as mechanisms for raising concerns. In addition, DOE’s 

whistleblower protection program does not cover certain types of 

employees and disclosures, and procedural aspects of the program may 

be challenging for whistleblowers to navigate. The new statutory 

whistleblower protection pilot program passed by Congress in 2013 

authorizes the creation of another avenue for contractor employees to 

seek whistleblower protection and may mitigate some of the challenges of

DOE’s existing program; however, DOE does not have complete 

information on the extent to which the pilot program has been 

implemented.

The organizational placement of some contractor ECPs, as well as some 

practices employed by both contractor and DOE ECPs, may compromise 

the programs’ independence, which, in turn, may discourage contractor 

employees from raising concerns. According to DOE’s ECP order and 

contractor ECP guidance, DOE and contractor ECPs are to provide 

employees with an independent avenue for reporting concerns. However, 

the order and guidance that govern ECPs do not address how DOE or 

contractor ECPs should be structured or operated to ensure their 

independence, and do not include provisions for DOE to assess or verify 

the independence of contractor-provided ECPs.

DOE policies do not prohibit contractor-provided ECPs from being placed 

within organizations that potentially limit the independence and 

effectiveness of the ECPs, and some are not organizationally aligned to 

achieve the degree of independence necessary to effectively carry out 

their responsibilities. Some contractor ECPs we examined were part of 

the contractors’ human resource office or office of general counsel. These 

offices are also typically responsible for managing reductions in force and 

defending management against wrongful termination and unlawful 

retaliation lawsuits—responsibilities that can run counter to the contractor 

employees’ interests and could affect the ECPs’ independence or cause 

employees to distrust the programs. Another contractor ECP we 

examined reported to a vice president within the part of the company 

responsible for engineering and quality assurance, rather than reporting 

above this line organization to an executive in an independent leadership 

Several Factors May 

Limit the Use and 

Effectiveness of 

Mechanisms for 

Raising Concerns or 

Seeking 

Whistleblower 

Protection

Organizational Placement 

and Practices of Some 

Employee Concerns 

Programs May Limit Their 

Effectiveness and 

Discourage Contractor 

Employees from Raising 

Concerns
Page 27 GAO-16-618 Whistleblower Protections Need Strengthening

position. Placement of an ECP within a line organization, such as 

engineering and quality assurance, may create a conflict of interest 

should employees raise concerns about that line organization’s 

management or practices. According to contractor officials, this ECP was 

relocated twice during the course of our audit: in November 2015, this 

ECP was briefly relocated to report to the company president, and, 

according to the DOE ECP manager at the site, later relocated again to 

report to the executive vice president and CEO. While the current location 

of the ECP may improve the ECP’s independence, nothing in DOE 

policies prohibits this contractor from moving the ECP back to a line 

organization with potentially conflicting interests.

The practices of some contractors also impair the independence of the 

contractor-provided ECPs. For example, the manager of a contractorprovided ECP we reviewed also performed management functions, which 

may impair or create the appearance of impaired independence. 

Specifically, this contractor ECP manager investigated an employee of 

another affiliated contractor at the site on behalf of management. While 

the ECP manager said he could not recall the exact reason for the 

investigation, he told us it was a management investigation and was not 

performed in response to an employee concern. At the time of the 

investigation, the employee being investigated had raised safety concerns 

about WTP and later sought whistleblower protections from OSHA and in 

federal court. When we asked the ECP manager and his general counsel 

if they were concerned about any potential conflict of interest, they told us 

that the investigation was appropriate because the ECP manager and the 

employee being investigated were from different, albeit affiliated, 

companies. DOE policies do not address the issue of ECP managers 

performing management functions as a possible conflict of interest that 

may impair or create the appearance of impaired independence. In 

addition, DOE and contractor ECP managers told us that some 

contractors have managers that have attempted to interfere with ECP 

investigations or outcomes. For example, a contractor ECP manager told 

us that after she had investigated and substantiated an employee’s

allegation of safety violations by his management team, the contractor’s 

general counsel attempted to pressure the contractor ECP manager to 

change her conclusion to indicate that the safety concerns were 

unsubstantiated.

DOE’s ECP order requires that DOE site ECP managers work with 

contracting officers to determine whether a contractor-provided ECP is 

contractually required and, if so, establish the means and criteria by 

which such contractor ECPs will be evaluated. However, neither the DOE 
Page 28 GAO-16-618 Whistleblower Protections Need Strengthening

ECP order nor its guidance provides information on the criteria to be used 

or factors to be considered when evaluating a contractor’s ECP—such as 

whether the ECP is independent or ensures anonymity when appropriate. 

For the 10 contractors we examined at the three sites we visited, DOE’s 

evaluations were conducted inconsistently and generally focused on ECP 

processes rather than the overall effectiveness or independence issues. 

For example, the frequency and scope of the oversight reviews varied at 

the three sites, and—in general—the evaluation included measures of 

ECP resources, document management, whether the ECP was 

appropriately advertised, whether an ECP hotline existed, and other 

similar factors. The independence of contractor-provided ECPs either was 

generally not addressed or was addressed in a limited fashion in ECP 

oversight reviews, and none of the independence issues we describe 

above were included in oversight review reports. DOE officials told us 

they believe changes to the ECP order are needed to address contractorprovided ECP oversight, among other things. However, according to DOE 

officials, efforts to revise the order have been ongoing since 2008 and, as 

of April 2016, no revisions to the order have been finalized.

DOE’s practice of transferring or referring contractor employee concerns 

back to the contractor may compromise the ECP’s independence, which, 

in turn, may discourage contractor employees from raising concerns. 

DOE’s ECP order and guidance allow for concerns to be referred or 

transferred to another DOE or contractor organization depending on the 

jurisdiction and resources of the DOE ECP office; however, DOE’s 

practice of routing concerns back to the contractor could potentially 

jeopardize an employee’s anonymity, impair the independence of the 

investigation, or create the appearance of impaired independence. 

According to DOE and contractor ECP guidance documents, both DOE 

and contractor ECPs are intended to provide an independent avenue for 

resolving employees’ concerns. DOE’s ECP is not affiliated with the 

contractors’ organization and, therefore provides an avenue for 

employees that may fear retribution or are otherwise reluctant to use their 

contractor-provided ECP. The existing DOE ECP guidance states that 

individuals or organizations should not be selected to conduct 

investigations where their involvement presents a conflict of interest, but it 

does not address potential issues related to broad distrust of a contractor, 

which is an issue that may have lead the individual to file a concern with 

DOE’s ECP instead of the contractor’s. Notably, the ECP guidance does 

not require DOE’s ECP managers to notify or obtain approval from the 

concerned individual before transferring or referring the concern, or to 

specify conditions under which such a transfer or referral would be 

inappropriate. The extent to which DOE ECP managers referred and 
Page 29 GAO-16-618 Whistleblower Protections Need Strengthening

transferred complaints to contractor organizations varied among the ECP 

managers at the 10 sites we examined. For example, from fiscal year 

2009 through 2014, one site’s DOE ECP manager transferred 14 percent 

of concerns received and referred 26 percent, whereas another site’s 

ECP manager rarely transferred or referred more than one concern a 

year. When concerns were transferred or referred, the most common 

reason DOE ECP managers gave was that the concern was better suited 

to investigation by the contractor ECP or a comparable program. The 

practice of transferring or referring concerns back to the contractor, 

without additional restrictions or guidance, may compromise the 

perceived independence of DOE’s ECP and inhibit contractor employees 

from reporting concerns.

DOE’s whistleblower protection program—the 708 program—does not 

cover certain types of employees and disclosures. Specifically, 

employees of DOE grantees are not covered by the 708 program. DOE 

awards grants to various recipients—including universities, nonprofits, 

and small businesses—and these grantees have employees that perform 

work that supports energy-related research and other activities. For 

example, if an employee of a grantee alleges retaliation for reporting a 

safety concern that would otherwise be protected under 708, they are not 

eligible to use the 708 program to seek remedy for the alleged retaliation. 

Also, DOE’s 708 program does not specifically cover disclosures made to 

GAO, Department of Justice officials, courts, or grand juries.

In addition, for those employees who are covered under DOE’s 708 

program, certain procedural aspects of the program can present 

challenges for some whistleblowers to navigate. Some procedural 

aspects of the 708 program are analogous to judicial proceedings, 

including preparing and filing a complaint, filing motions and appeals, and 

arguing before a judge.38 Consequently, without legal assistance or legal 

skills and experience, some employees may find navigating the process 

challenging.

In our review of 87 cases filed under the 708 program from fiscal years 

2009 through 2014, we found that some whistleblowers faced challenges 

forming their arguments and navigating the hearings and appeals 

 38Hearings in the 708 program occur before an administrative judge. 10 C.F.R. 708.25(a)

DOE’s Whistleblower 

Protection Program Does 

Not Cover Certain Types 

of Employees and 

Disclosures, and Some 

Aspects of the Program 

May Be Challenging to 

Navigate
Page 30 GAO-16-618 Whistleblower Protections Need Strengthening

process, especially those that filed without the assistance of legal 

counsel.39 For example, one 708 case we examined was dismissed 

because the Office of Hearings and Appeals investigator found that the 

complaint was too vague to meet the regulatory definitions of a protected 

disclosure. The whistleblower then filed an appeal with Office of Hearings 

and Appeals that provided more specific information; however, the appeal 

was denied because the investigator found that the new, more specific 

information was a recharacterization of the story and was not consistent 

with her original testimony. In another example, it appears that the 

whistleblower may not have framed his argument as effectively as 

possible. The whistleblower’s appeal was dismissed even though the 

DOE Inspector General later substantiated the underlying concern. The 

Office of Hearings and Appeals opinion found that, “even assuming the 

truth of the complainant’s allegations as to the relevant facts of this case, 

those allegations do not support a plausible claim that the whistleblower 

disclosed information that he reasonably believed revealed fraud, gross 

mismanagement, or a substantial violation of a law, rule or regulation.” In 

this case, the DOE Inspector General later found—just as the 

whistleblower had claimed—that the contractor had allowed changes to 

classified nuclear weapons drawings without using an approved change 

notice—a practice that could permit unauthorized changes to weapons 

drawings.40

DOE ECP managers serve as a focal point for processing the paperwork 

associated with 708 claims, but they are not responsible for helping 

whistleblowers to form their arguments and navigate the hearings and 

appeals process. According to DOE’s ECP guidance, DOE ECP 

personnel are not expected to advise employees concerning judicial or 

legal remedies available outside the ECP, beyond indicating that certain 

statutes may apply to the situation. In the 708 case files we reviewed, 

many whistleblowers did not appear to retain legal counsel—which may 

 39Office of Hearings and Appeals officials told us that their office is guided by the Part 708 

regulations as well as its own case law interpreting the Part 708 regulations and case law 

from the Merit Systems Protection Board and the federal courts. In April 2016, Office of 

Hearings and Appeals officials noted that, as the assigned neutral adjudicators under the 

Part 708 program, it would be inappropriate and a violation of due process for the office to 

advocate for one party or the other by disregarding case authority to achieve a specific 

policy goal.

40NNSA standards require that once a drawing has been approved and is ready for 

production, the drawing is “read only” and cannot be modified without a proper change 

order, in essence confirming that all changes to the drawings have been approved. 
Page 31 GAO-16-618 Whistleblower Protections Need Strengthening

have hampered their ability to navigate the 708 process. In contrast, the 

arguments and responses to cases filed by contractors were almost 

always prepared by either the contractors’ attorneys or outside counsel 

hired for the purpose of defending the case.41 Officials from all 10 

contractors with which we spoke told us that they employ legal counsel 

for managing cases filed under the 708 program. Further, a DOE official 

at one site we visited told us that the contractors sometimes involve legal 

counsel from the very early stages of a complaint. For example, this 

official told us that one contractor at the site brings the company general 

counsel to informal mediation meetings designed to resolve a concern 

before proceeding with the 708 process. This ECP manager said that he 

believes this practice may be intimidating to employees. In addition, 

contractor attorney fees and settlement costs are generally reimbursable 

expenses paid by DOE,42 while the whistleblower may need to pay 

attorney fees if he or she decides to retain counsel.43 DOE may provide 

contractors with a provisional reimbursement of legal costs, and officials 

told us that they do so in most cases. According to DOE, the ultimate 

decision regarding whether the legal costs are allowable is made once 

the Office of Hearings and Appeals (the office responsible for adjudicating 

cases filed under the 708 program) has made a final decision regarding 

the case after all appeals have been exhausted, or a settlement 

agreement is reached.

 41In a randomly-selected, nongeneralizeable sample of 30 cases with complete casefiles, 

22 whistleblowers did not appear to have hired legal counsel, whereas 26 of 30 responses 

filed by contractors were submitted by either in-house or retained legal counsel for the 

company. We assessed this by examining who prepared the complaints, responses, and 

supporting documents for 708 filings. Additionally, in many cases, the whistleblowers were 

asked as part of the filing process whether they had hired counsel. 

42According to DOE, contracts that include cost reimbursable elements generally allow 

reimbursement of legal costs, including the costs of litigation, if the costs are reasonable 

and incurred in accordance with the applicable cost principles and contract clauses. 

However, DOE is generally prohibited from reimbursing contractors or subcontractors for 

legal fees or expenses incurred in whistleblower cases subsequent to an adverse 

administrative or judicial determination on the merits. 42 U.S.C. 5853. Settlement costs 

are reimbursable to the same extent as other legal costs, but under the whistleblower pilot 

program, reimbursement for such costs is limited to those situations where there was 

“very little likelihood” the whistleblower would prevail. See 48 C.F.R. 31.205-47(c)(2)(ii).

43A DOE official stated that most attorneys take whistleblower cases on a contingency fee 

basis, meaning that the attorney collects a percentage of the amount obtained through 

litigation or settlement. Assessing the prevalence of this practice was beyond the scope of 

our review, but even under these circumstances, the whistleblower is still paying the 

attorney in at least some instances.
Page 32 GAO-16-618 Whistleblower Protections Need Strengthening

Even when employees successfully navigate the 708 program, and 

DOE’s Office of Hearings and Appeals finds that retaliation has occurred, 

employees may face challenges obtaining the legal remedy they are 

seeking. If the Office of Hearings and Appeals determines that an act of 

retaliation has occurred, DOE may order the contractor to carry out 

certain actions, including awarding the employee reinstatement, back 

pay, attorney fees, or other remedies necessary to abate the violation.44

DOE is not, however, required to order any specific action, and the 

whistleblower has no way to enforce such an order even if issued. In 

interpreting a now superseded version of the regulation that establishes 

the 708 program, a federal district court dismissed a suit by a 

whistleblower seeking to compel DOE to enforce an agency order 

awarding $300,000 to the whistleblower as compensation for a 

contractor’s unlawful retaliation.45 The court held that the 708 program did 

not require DOE to take any enforcement action against the contractor, 

and therefore the whistleblower’s suit failed.46 While dismissing the 

complaint, the court criticized the 708 program stating that “because DOE 

has supported its promises with a mere milquetoast of a regulation, 

essentially unenforceable in court, persons like the plaintiff are left with 

little more than the promises of politicians, and are held captive to the 

whim of an agency that may have far more tolerance for retaliation than it 

claims.”47 DOE revised the 708 regulation the following year, but the 

revised version of the regulation does not address the issue of 

enforceability raised in the 1998 case. The revision to the regulation 

requires DOE to forward the adverse DOE decision to the contractor48

and authorizes DOE to disallow certain contract costs or terminate the 

contract for default.49 However, the revised regulation does not require 

DOE to take action against a contractor, and whistleblowers still cannot 

compel DOE to enforce an agency order.

 4410 C.F.R. § 708.36(a).

45Cornett v. DOE, Civ. No. 98-1124, 1998 U.S. Dist. LEXIS 9767 (D.D.C. 1998).

46Id. at *6-8.

47Id. at *9

4810 C.F.R. 708.38(a).

4910 C.F.R. 708.38(b). The original regulation directed the head of the relevant DOE field 

office to “take all necessary steps to implement the final decision,” 10 C.F.R. 708.12(a) 

(1998).
Page 33 GAO-16-618 Whistleblower Protections Need Strengthening

The whistleblower protection pilot program may mitigate some of the 

challenges associated with the existing 708 program, in part because it 

generally covers more types of employees and disclosures to more types 

of entities than the 708 program. It also contains certain procedural 

benefits for the whistleblower that are unavailable under the 708 program. 

We identified the following aspects of the pilot program that may mitigate 

challenges associated with DOE’s 708 program:

• Covered employees: The pilot program covers a wider range of 

employees. Specifically, while the 708 program covers contractor and 

subcontractor employees, the pilot program covers these employees 

as well as employees of DOE grantees.

• To whom disclosures can be made: The pilot program expands the 

list of organizations and agencies to which protected disclosures can 

be made—to specifically include GAO, authorized officials of the 

Department of Justice, courts, and grand juries.

• Procedural benefits:

• Significance of disclosures related to legal violations: Under the 

pilot program, the complainant must reasonably believe that his or 

her disclosure reveals evidence of a violation of law, rule, or 

regulation. Under the 708 program, the complainant must 

reasonably believe that his or her disclosure reveals a “substantial 

violation” of law, rule, or regulation.

• Statute of limitations: The pilot program provides a 3-year statute 

of limitations for filing a complaint about unlawful retaliation, 

whereas the 708 program has a 90-day limitations period.50

• Appeals and judicial review: The pilot program statute clearly 

specifies the circumstances under which a whistleblower can sue 

the contractor directly and obtain a jury trial.51 The 708 program 

 50The 90 days does not include the time taken to engage in internal contractor grievance 

or arbitration procedures, or the time taken to resolve certain jurisdictional issues. 10 

C.F.R. § 708.14(b), (c). DOE may accept a complaint filed after the 90-day period if the 

complainant demonstrates a good reason for not filing within that period. 10 C.F.R. § 

708.14(d).

51The employee may generally pursue action in court if DOE issues an order denying 

relief or has not issued an order within 210 days after the submission of the complaint. 41 

U.S.C. § 4712(c)(2).

The Whistleblower 

Protection Pilot Program 

May Mitigate Some 

Challenges of DOE’s 

Existing Program, but 

DOE Does Not Have 

Complete Information on 

the Extent to Which It Has 

Been Implemented and 

Has Not Evaluated the 

Effectiveness of Either 

Program
Page 34 GAO-16-618 Whistleblower Protections Need Strengthening

does not clearly delineate when the employee can seek redress in 

court.

• Enforceability: Under the pilot program, if DOE concludes that the 

contractor subjected the whistleblower to unlawful retaliation, the 

agency must order the contractor to take one or more of the 

following actions: (a) abate the retaliation; (b) reinstate the 

whistleblower with back pay; or (c) pay the whistleblower’s 

attorney’s fees. The whistleblower may sue the contractor to 

enforce such an order. Under the 708 program, in contrast, and as 

noted above, DOE is not required to order any specific action in 

the event it finds that impermissible retaliation has occurred, and 

the employee has no way to enforce such an order even if issued.

In our review of case files, we found examples of cases in which some 

aspects of the case might have turned out differently had the 

whistleblower’s case been covered by the whistleblower pilot program. 

For example, we reviewed multiple cases where the 708 program’s 

limitations period within which a claim must be filed was a factor identified 

by Office of Hearings and Appeals hearings officers as a reason for 

dismissal. In one case, the complaint was not filed within 90 days of the 

alleged retaliatory acts; however, the filing did occur within 3 years of the 

alleged retaliatory acts, and thus the whistleblower’s case would not have 

been dismissed as untimely under the pilot program. In another case, the 

whistleblower did not want to proceed with the hearing until the 

publication of documents from the Inspector General that he believed 

would support his claim. The Office of Hearings and Appeals was 

unwilling to grant an extension to allow this, and the whistleblower’s case 

was dismissed because of his refusal to comply with the office’s requests

for, among other things, specific information regarding his protected 

disclosures and alleged unlawful retaliation. However, had this case been 

covered by the whistleblower pilot program, the whistleblower would have 

had additional time to wait for the ongoing Inspector General investigation 

to conclude before filing his complaint.

In addition to potentially expanding the scope of employees and types of 

disclosures covered, the pilot program may be easier to navigate than the 

708 process. As discussed above, under the 708 program, some 

whistleblowers faced challenges forming their arguments and navigating 

the hearings and appeals process. The pilot program, however, is an 

alternative process that designates the Inspector General as responsible 

for investigating alleged unlawful retaliation, rather than providing a formal 

administrative hearing, as offered by the 708 process. Under the pilot 
Page 35 GAO-16-618 Whistleblower Protections Need Strengthening

program, the Inspector General investigates the alleged retaliation, and 

submits its findings to the whistleblower, the contractor, and the Secretary 

of Energy. Should the Secretary of Energy determine, based on the 

Inspector General’s report, that impermissible retaliation occurred, the 

Secretary must issue an order of remedy. Officials with the Office of 

Inspector General told us that it was not necessary for the complainant to 

have a lawyer because they would spend enough time talking with the 

whistleblower to identify and describe the protected disclosure and 

alleged retaliation. Consequently, some whistleblowers—particularly 

those who do not have the necessary skills to navigate the 708 process 

or resources to hire an attorney—may fare better under the pilot program. 

Also, under the pilot program, greater legal restrictions are put on DOE’s 

reimbursement of settlement costs incurred by the contractor. 

Specifically, contractor settlement costs are not allowable in whistleblower 

cases unless the contracting officer determines, in conjunction with the 

relevant legal advisor, that “there was very little likelihood that the 

claimant would have been successful on the merits.”

DOE, however, does not have complete information on the extent to 

which contractors have adopted the whistleblower protection pilot 

program, which will sunset in 2017. The whistleblower protection pilot 

program statute, enacted in January 2013, requires DOE to make its 

“best efforts” to include a contract clause providing for the pilot program at 

the time of any “major modification” to a contract.52 Officials in DOE’s 

Office of General Counsel told us that the Department made several 

efforts to encourage the inclusion of the pilot program clause in existing 

contracts, including issuing an October 2013 “policy flash,” or notice 

about the pilot program, to site contracting officers, and following up with 

contracting officers to inquire into progress implementing the pilot 

program. However, DOE could not provide us with comprehensive or 

complete information on the extent to which contracts had been modified 

to include the whistleblower pilot program, as shown by the following 

instances:

• When we asked in August 2015 for information regarding the extent to 

which contracts had been modified to include the pilot, DOE officials 

said that they did not know how many and which contracts included 

 52The statute does not define major modification or best effort.
Page 36 GAO-16-618 Whistleblower Protections Need Strengthening

the pilot program because the department is not tracking the progress 

of the pilot program’s implementation.

• Later, in April 2016, DOE provided a list of management and 

operating contracts that officials said had been modified to include the 

pilot program.53 According to DOE’s list, 19 of its 22 management and 

operating contracts had been modified to include the pilot program, 

and 3 had not. However, DOE’s list was missing key information the 

following key information:

• DOE’s list did not include the date the contracts were modified—

making it difficult to determine when the pilot provision had been 

included or evaluate the timeliness of DOE’s implementation of 

the pilot program. DOE officials said that this information would be 

difficult to obtain.

• DOE’s list also did not include the status of at least 19 other prime 

contracts. As a result, DOE does not know the extent to which 

these contractors have adopted the pilot program and, for those 

contractors that have not adopted the pilot program, does not 

have an explanation why not.

Because DOE officials told us in August 2015 that the department was 

not tracking the progress of the pilot program’s implementation, we 

obtained information regarding the status of the pilot program for each of 

the 10 contractors we interviewed at the three sites we visited. Of these 

10 contractors, 4 contractors had adopted the pilot program—2 in 2014 

and 2 in 2015.54 The remaining 6 contractors had not adopted the pilot 

program. Notably, the 5 contractors we visited at DOE’s Hanford site had 

not adopted the pilot program nor had a prime contractor responsible for 

 53Management and operating contracts are agreements under which the federal 

government contracts for the operation, maintenance, or support, on its behalf, of a 

government-owned or –controlled research, development, special production, or testing 

establishment wholly or principally devoted to one or more of the major programs of the 

contracting federal agency. Federal Acquisition Regulation § 17.601.

54DOE modified contracts for (1) Savannah River Nuclear Solutions, LLC in October 2014, 

(2) Parsons Government Services Inc. in December 2014, (3) Los Alamos National 

Security, LLC in May 2015, and (4) CB&I AREVA MOX Services, LLC in September 2015.
Page 37 GAO-16-618 Whistleblower Protections Need Strengthening

the Savannah River site radioactive liquid waste facility.55 Together, these 

contractors employ over 8,000 people.

DOE officials told us that, in some instances, especially where there is 

limited time before contract expiration, the contractor indicated that 

implementation would require outsized costs or effort. They also said that 

contracts are modified at varying frequencies and that implementation 

efforts are ongoing. However, we note that for five of the six contractors 

that had not adopted the pilot at the three sites we visited, DOE had the 

opportunity to include the pilot provision as part of contract modifications 

that occurred for other purposes. Specifically, each of these five contracts 

has been modified for various purposes since the whistleblower pilot 

program statute was enacted in 2013, but DOE did not include the pilot 

program provision as part of the modification. DOE was unable to provide 

us with information on modifications to one of the six contracts: the URS 

Corporation contract at Hanford. Moreover, in the case of at least one of 

these contracts, DOE officials told us that there have been three “major”

modifications that have been signed since 2013. Nonetheless, DOE did 

not incorporate the contract clause requiring the pilot as part of any of 

these contract modifications.

Information on the pilot program’s effectiveness could inform Congress’

decision on whether to extend the pilot program or make it permanent, 

and if so, whether to make other changes to the pilot program 

provisions.56 The federal standards for internal control state that 

management should establish and operate monitoring activities to monitor 

the internal control system and evaluate the results.57 Because DOE 

relies on contractors to carry out its missions, the effectiveness of DOE’s 

internal control system partly depends on the effectiveness of the 

mechanisms for contractor employees to seek a legal remedy for alleged 

 55The five Hanford site contractors are (1) Bechtel National, Inc., (2) Washington River 

Protection Solutions, LLC, (3) CH2M Hill Plateau Remediation Company, (4) Washington 

Closure Hanford, and (5) URS Corporation. The Savannah River site contractor is 

Savannah River Remediation, LLC.

56In a separate effort, GAO is evaluating the pilot program’s implementation at 14 federal 

executive agencies, including DOE. Specifically, the National Defense Authorization Act 

for Fiscal Year 2013 includes a mandate provision for GAO to evaluate the 

implementation of the pilot program and report on any findings and recommendations by 

January 2, 2017.

57GAO/AIMD-00-21.3.1 and GAO-14-704G.
Page 38 GAO-16-618 Whistleblower Protections Need Strengthening

unlawful retaliation. DOE, however, has not evaluated the effectiveness of 

the pilot program or the 708 program. DOE officials told us that the only 

effort to assess the 708 program was a 2006 DOE Inspector General 

investigation that was initiated but never resulted in a report. In addition, 

Office of Hearings and Appeals officials told us they track certain 

performance measures related to the 708 program, such as the 

timeliness of case processing and the quality of written decisions as 

judged by a peer-review process, but they have not assessed whether the 

program offers effective whistleblower protection. As of May 2016, one 

case has been filed under the whistleblower pilot program: a DOE official 

told us the case was initiated in late March 2016, and that investigations 

are ongoing. DOE officials told us that because the existing 708 program 

is robust, the pilot program does not add much to the whistleblower 

protections at the department. However, given that no cases have been 

decided under the pilot program and DOE has not evaluated whether the 

pilot program mitigates challenges whistleblowers may face under the 

708 program, it is unclear how DOE reached this conclusion.

DOE has infrequently used its enforcement authority to hold contractors 

accountable for unlawful retaliation and in 2013 determined that it did not 

have the authority to enforce certain policies. In addition, DOE has taken 

little or no action against contractors that create a chilled work 

environment and has not developed effective policies for doing so.

DOE Has Infrequently 

Used Its Authority or 

Taken Action to Hold 

Contractors 

Accountable for 

Unlawful Retaliation 

and Creating a 

Chilled Work 

Environment
Page 39 GAO-16-618 Whistleblower Protections Need Strengthening

Over the past 20 years, DOE has infrequently used its enforcement 

authority to hold contractors accountable for unlawful retaliation. DOE’s 

Office of Enforcement is responsible for enforcing DOE’s nuclear safety 

programs and worker safety and health programs at DOE sites—including 

enforcing policies that prohibit unlawful retaliation against employees that 

disclose nuclear safety-related or worker safety and health-related issues. 

DOE has used this authority three times in the last 20 years—taking two 

enforcement actions and issuing one enforcement letter against 

contractors for unlawful retaliation.58 The two enforcement actions were 

taken in 2005 and 2008 in response to rulings by the Office of Hearings 

and Appeals. Both enforcement actions involved retaliation for nuclear 

safety-related disclosures, and in both cases DOE concluded that the 

retaliatory acts constituted nuclear safety violations.59 This finding is 

consistent with DOE’s whistleblower enforcement policy.60 The 

 58Enforcement actions, or notices of violations, which can carry civil penalties (fines), are 

used to enforce the nuclear safety and worker safety and health rules and requirements. 

Enforcement letters are used to notify contractors of significant concerns that, if not 

addressed, could lead to a notice of violation. DOE issued the regulations governing 

contractor retaliation against employees who reported worker safety and health concerns 

(10 C.F.R. part 851) in 2006, and these regulations took effect in 2007.

59Nuclear safety violations are subject to higher maximum penalties than other work 

safety and health violations.

6010 C.F.R. part 820 App. A, paragraph XIII.b Specifically, this paragraph in DOE’s 

“Whistleblower Enforcement Policy” for nuclear safety violations says: “An act of retaliation 

by a DOE contractor, proscribed under 10 C.F.R. 708.43, that results from a DOE 

contractor employee’s involvement in an activity listed in 10 C.F.R. 708.5(a)–(c) 

concerning nuclear safety in connection with a DOE nuclear activity, may constitute a 

violation of a DOE Nuclear Safety Requirement under 10 C.F.R. part 820 (Part 820) 

(emphasis added). In addition, in a 1992 notice clarifying the relationship between 708 

and 820, DOE stated: “Nuclear Safety Requirements would not be limited to regulations 

that appear in C.F.R. parts dealing primarily with DOE nuclear activities. Any DOE 

regulation, to the extent it is directly related to nuclear safety, would be a DOE Nuclear 

Safety Requirement. For example, the provisions of the recently adopted Whistleblower 

Rule concerning protection of workers against reprisals would constitute DOE Nuclear 

Safety Requirements if a reprisal were found to be in response to raising or disclosing 

nuclear safety related information or refusing to engage in an illegal or dangerous nuclear 

activity.” 57 Fed. Reg, 20796 (May 15, 1992).

DOE Has Infrequently 

Used Its Enforcement 

Authority to Hold 

Contractors Accountable 

for Unlawful Retaliation 

Related to Nuclear Safety, 

and Reports Its Authority 

to Do So Is Limited
Page 40 GAO-16-618 Whistleblower Protections Need Strengthening

enforcement letter, sent in 2004, was in response to a contractor selfreporting retaliation through DOE’s Noncompliance Tracking System.61

DOE determined in 2013, however, that it does not have the authority to 

enforce a key aspect of its nuclear safety whistleblower policy—despite 

having taken enforcement actions in 2005 and 2008. According to the 

director of DOE’s Office of Enforcement, DOE made this determination as 

part of its effort to revise guidance documents aimed at improving the 

understanding of DOE’s safety and security enforcement program. 

Specifically, DOE’s nuclear safety enforcement policy states that unlawful 

retaliation for nuclear safety-related disclosures may itself be punishable 

as a nuclear safety violation. DOE first announced this position in the 

Federal Register in 1992. However, DOE officials we interviewed told us 

that the policy statement by itself is unenforceable unless and until it is 

codified in regulatory language that has been subject to standard 

rulemaking procedures, which include public notice and an opportunity for 

comment. Nothing in the policy statement itself specifically refers to this—

making it difficult for anyone reading the policy to know that it is not 

enforceable,

62 and DOE officials did not explain why the agency 

considered the policy enforceable in 2005 and 2008 but not enforceable 

in 2013. DOE officials told us in August 2015 that they had initiated efforts 

to revise the agency’s nuclear safety regulations and that one of the 

revisions under consideration is to specify that unlawful retaliation is a 

nuclear safety violation. However, DOE has yet to issue a notice of 

proposed rulemaking or advanced notice of proposed rulemaking—which 

 61According to the enforcement letter, on October 13, 2003, the management and 

operating contractor at the Savannah River Site self-reported in the Noncompliance 

Tracking System an instance of unlawful retaliation against an employee who was 

terminated after raising safety-related issues. The matter was investigated as an 

employee concern and substantiated, and the employee was reinstated. 

62The whistleblower policy statement says "This policy statement sets forth the general 

framework through which the U.S. Department of Energy (DOE) will seek to ensure 

compliance with its enforceable nuclear safety regulations and orders (hereafter 

collectively referred to as DOE Nuclear Safety Requirements) and, in particular, exercise 

the civil penalty authority provided to DOE in the Price Anderson Amendments Act of 

1988, 42 U.S.C. 2282a (PAAA). The policy set forth herein is applicable to violations of 

DOE Nuclear Safety Requirements by DOE contractors who are indemnified under the 

Price Anderson Act, 42 U.S.C. 2210(d), and their subcontractors and suppliers (hereafter 

collectively referred to as DOE contractors). This policy statement is not a regulation and 

is intended only to provide general guidance to those persons subject to DOE's Nuclear 

Safety Requirements as specified in the PAAA." 10 C.F.R. part 820, App. A, paragraph 

I.a.
Page 41 GAO-16-618 Whistleblower Protections Need Strengthening

are important first steps in the rulemaking process. Moreover, DOE did 

not publicly announce its intent to amend its nuclear safety regulations to 

codify the activities that would constitute enforceable nuclear safety 

violations until May 2016—over a month after we asked DOE to verify the 

accuracy of information we planned to include in this report. Specifically, 

DOE announced its plans in the May 2016 government-wide semi-annual 

regulatory agenda.63 DOE officials told us that the proposed rule, when 

issued, would codify the relevant language in the enforcement policy 

statement, thus making nuclear safety-related retaliation an enforceable 

nuclear safety violation.

Given the potential for confusion regarding the enforceability of DOE’s 

policy, it is incumbent on DOE to act as quickly as possible to codify this 

policy in regulatory language to ensure that the enforceability of the policy 

is clearly understood. The federal standards for internal control state that 

management communicates quality information down and across 

reporting lines to enable personnel to perform key roles in achieving 

objectives, addressing risks, and supporting the internal control system.64

However, the tentative target date for issuance of the proposed rule—a 

first step in the rulemaking process—is December 2017. Using DOE’s 

existing and tentative time frame for issuing a proposed rule, DOE could 

take years before issuing a final rule confirming its policy is enforceable.

DOE does not have the same challenges in enforcing prohibitions against 

retaliation in connection with worker safety and health concerns, and has 

the authority to take enforcement action against worker safety and healthrelated retaliation. However, DOE has not routinely leveraged information 

from the Department of Labor or judicial rulings in order to take 

enforcement action against contractors for unlawful retaliation. Officials 

with DOE’s Office of Enforcement told us that they can take enforcement 

action related to whistleblower retaliation cases if such retaliation has 

been substantiated by an authoritative decision, including decisions 

coming from DOE’s Office of Hearings and Appeals, the Department of 

Labor, the judicial system, or by contractor self-reported retaliation from 

 63DOE announced its plans in the “long-term actions” section of the regulatory agenda. To 

keep users better informed of opportunities for participation in the rulemaking process, an 

agency may list in the “long-term actions” section of its agenda those rules it expects will 

have the next regulatory action more than 12 months after publication of the agenda.

64GAO/AIMD-00-21.3.1 and GAO-14-704G.
Page 42 GAO-16-618 Whistleblower Protections Need Strengthening

DOE’s Noncompliance Tracking System. However, DOE enforcement 

officials told us that they have not routinely asked for information from the 

Department of Labor on whistleblower retaliation cases filed by DOE 

contractor employees, and that they are not aware of cases adjudicated 

in state or federal court. Specifically, in August of 2015, they said that the 

Department of Labor had recently initiated an effort to provide DOE’s 

office of Enforcement with more regular information about whistleblower 

cases filed through their whistleblower protection program, and that 

Department of Labor had committed to providing quarterly updates. Later, 

in April 2016, when we asked DOE to provide documentation that 

demonstrated that it was routinely collecting information from the 

Department of Labor, DOE provide information for the first two quarters of 

fiscal year 2016. Also, DOE enforcement officials told us that contractor 

self-reporting of retaliation was uncommon, with a total of three cases 

reported in the Noncompliance Tracking System, all from the same site, 

and at least two of the three originating from concerns raised to the same 

contractor ECP manager at the Savannah River Site. This ECP manager 

was terminated in 2015 and has alleged in court that her termination was 

in retaliation for cooperating with GAO during this engagement, among 

other things.

In addition, DOE does not track or monitor the extent to which contractors 

settle whistleblower cases and does not have mechanisms in place to 

provide assurance that contractors are resolving the underlying safety or 

other issues raised by whistleblowers. Officials with DOE’s Office of 

Enforcement told us that they were aware of some settlement 

agreements but said that they often have no way of knowing about 

alleged retaliation if a settlement is reached. DOE site officials at the 

three sites we visited said that they were aware of settlements involving 

contractors at their sites and reviewed them in accordance with DOE 

regulations, which require contractors to seek pre-approval for 

reimbursement when the settlement total exceeds $25,000.65 However, 

DOE’s approval and any subsequent review of the settlement are aimed 

at ensuring that the costs are reasonable and allowable under the 

contract. We attempted to collect information on settlements at the three 

sites we visited to determine the extent to which contractors settle 

whistleblower cases but were unable to verify the completeness or 

 65“The contractor must obtain permission from Department Counsel to enter a settlement 

agreement if the settlement agreement requires contractor payment of $25,000 or more.” 

10 C.F.R. § 719.33.
Page 43 GAO-16-618 Whistleblower Protections Need Strengthening

accuracy of the information we received. A recent DOE Inspector General 

report found that post-settlement reviews were not being conducted as 

required.66 The report found three whistleblower settlements totaling over 

$1.8 million that were reimbursed without evidence of a proper postsettlement review.

Also, depending on the terms of the settlement, some whistleblower 

cases may not be subject to enforcement action. Settlement agreements 

may include “no admission” clauses, which state, for example, that the 

settlement shall not be construed as an admission of any wrongful acts or 

violation of laws and, in many cases, include “nondisclosure” clauses that 

prevent the whistleblower from discussing the facts and circumstances 

surrounding the case. For example, in August 2015, a settlement was 

reached in a whistleblower case involving the WTP manager who had 

raised the safety and technical concerns in 2010 that were the basis of 

the DNFSB investigation and 2011 safety culture report. Under the terms 

of the settlement, the contractor paid the whistleblower $4.1 million, and 

the settlement included a “no admission” clause that specified that the 

contractor admitted to no wrongdoing and stated that the whistleblower 

agreed to withdraw complaints regarding the alleged retaliation.

Moreover, DOE may have limited ability to obtain information needed for 

whistleblower-related investigations. DOE uses a standard contract 

clause that requires the contractors to produce for government audits all 

documents acquired or generated under the contract, including those for 

which attorney-client and attorney work product privilege was asserted; 

however, DOE has been reluctant to enforce this contract requirement. 

On March 6, 2014, the Office of the Secretary of Energy requested that 

the Inspector General review the circumstances surrounding the 

termination of a contractor employee at the Hanford site. However, DOE’s 

Inspector General was not able to reach a conclusion regarding the 

termination of the employee because of a material scope limitation.67

Specifically, two contractors at the Hanford site, including the contractor 

that terminated the employee in question, did not provide access to 

 66DOE Office of Inspector General, Audit Report: Follow-up Audit of the Department of 

Energy’s Management of Contractor Fines, Penalties, and Legal Costs, DOE-OIG-16-06 

(Washington, D.C.: Feb. 5, 2016).

67Department of Energy, Special Review: Issues Pertaining to the Termination of Ms. 

Donna Busche, a Contractor Employee at the Waste Treatment Plant Project, DOE/IG0923 (Washington, D.C.: Oct. 17, 2014).
Page 44 GAO-16-618 Whistleblower Protections Need Strengthening

several thousand contractor-generated e-mails and other documents that 

the Inspector General believed were necessary to perform the 

examination. The Inspector General’s report notes that both contracts 

contain a clause that requires the contractors to, among other things, 

produce for government audit all documents acquired or generated under 

the contract, including those for which attorney-client and attorney work 

product privilege were asserted. Nonetheless, on the advice of outside 

counsel, both contractors took the position that the documents in question 

were subject to either attorney-client or attorney work product privilege, 

according to the report. The Inspector General’s report also states that 

one contractor made a unilateral determination that certain documents 

were not relevant to the examination. According to officials with DOE’s 

Inspector General, DOE had the option of trying to subpoena these 

documents, but DOE officials ultimately told the Inspector General that 

they did not think this would be a successful strategy.

DOE Integrated Safety Management policy and guidance state that DOE 

will hold contractors accountable for safety performance—which includes 

fostering an environment that encourages a questioning attitude by all 

employees and is free of retribution. The policy states that DOE will hold 

contractors accountable through codified safety regulations, contract 

clauses, DOE directives, and the use of contractual and regulatory 

enforcement tools. Also, DOE contracting officers and other contracting 

specialists at the sites we visited told us that if there is sufficient evidence 

that the contractor had created a chilled environment, the contractor could 

be held accountable. However, it is unclear what would constitute 

sufficient evidence because DOE’s Integrated Safety Management 

policies and guidance have not clearly articulated a standard. DOE’s 

Integrated Safety Management guidance provides information on 

attributes associated with fostering an environment that is free of 

retribution. Attributes include maintaining a high level of trust and 

encouraging and valuing the reporting of individual errors. However, 

DOE’s policy and guidance do not clearly state under what circumstances 

a contractor might be held accountable for creating a chilled work 

environment.

All of the DOE ECP managers we interviewed regarding the issue told us 

that they were aware of contractors that had created chilled work 

environments. DOE ECP managers do not have the responsibility or 

authority to hold contractors accountable for creating a chilled work 

environment. This responsibility generally rests with DOE contracting 

officers in coordination with site officials—such as health and safety 

DOE Has Taken Limited or 

No Action against 

Contractors That Create a 

Chilled Work Environment 

and Has Not Developed 

Effective Policies for Doing 

So
Page 45 GAO-16-618 Whistleblower Protections Need Strengthening

officials. Some DOE ECP managers, however, told us that they had 

doubts about DOE management’s commitment to resolving issues related 

to a chilled work environment. For example, a DOE ECP manager 

responsible for multiple sites told us that there is widespread mistrust of 

management in both contractor and federal organizations.

DOE officials at the three sites we visited told us that contracting officers 

at sites generally do not levy penalties in response to evidence presented 

by DOE ECP managers regarding a chilled work environment and instead 

pass concerns back to the contractor. The reasons that site officials gave 

for not using fee or taking other measures to hold contractors accountable 

varied, as shown by the following examples:

• At one site, a DOE contracting officer told us that he had not seen any 

evidence of a chilled work environment. However, a contractor official 

from that site told us during the same site visit that he had observed a 

chilled work environment. He said it did not seem to be widespread 

but occurred within certain pockets of the organization. We also 

identified situations that could indicate a chilled work environment at 

this site. Specifically, the contract of a third-tier subcontractor at the 

site was terminated shortly after safety concerns raised by the 

subcontractor were substantiated by DOE’s ECP. In October 2015, 

this subcontractor contacted DOE’s ECP to report that pressure from 

the prime contractor at the site to meet unrealistic construction 

milestones had created an environment that put schedule before 

safety. 68 The subcontractor in this case did not work directly for the 

prime contractor and instead performed work for a general contractor 

under the prime contract. Upon investigation, the federal worker 

health and safety investigator tasked with investigating the issue 

substantiated the subcontractor’s concern and sent an assessment 

report and a letter to the prime contractor. The letter recommended 

that the prime contractor thoroughly review the assessment report and 

commit to making the necessary changes to improve safety. On the 

day after the investigation letter was received by the prime contractor, 

the contract of the subcontractor that raised the safety concern was 

terminated. A representative from this subcontractor told us that the 

prime contractor wanted his company removed from the project and 

 68For purposes of this report, a prime contractor is a company or other entity that enters 

into a contract with a federal agency. A subcontractor is any supplier, distributor, vendor, 

or firm that furnishes supplies or services to the prime contractor or other subcontractor. 
Page 46 GAO-16-618 Whistleblower Protections Need Strengthening

blacklisted from ever working at the site again.69 The ECP manager 

and another DOE official told us that the firing of this subcontractor 

could further contribute to what they characterized as a chilled work 

environment.

• At another site, a DOE contracting officer said that DOE manages the 

contractor, not its employees; therefore, until a retaliation issue 

becomes a lawsuit, DOE relies on the contractor to remedy the issue. 

However, this runs counter to DOE’s Integrated Safety Management 

policy, which states that contractors will be held accountable for safety 

performance, to include fostering an environment free of retaliation. At 

this site, the DOE ECP manager described a situation involving 

intimidation of contractor employees who used DOE’s ECP. He said 

that one of the site’s contractors obtained records of an employee’s 

interactions with DOE’s ECP using the Freedom of Information Act 

and, during an all-hands meeting, warned its employees not to raise 

concerns with DOE’s ECP program. After the incident, officials told us 

there was a substantial drop in the number of employee concerns 

received from employees of that contractor. The DOE ECP manager 

told us that he had tried to raise this issue with DOE general counsel 

at the site but did not get any help resolving the issue. This ECP 

manager said that he routinely looks for trends that might indicate 

reluctance on the part of contractor employees to raise concerns. 

However, he told us that taking action to investigate suspicious trends 

requires the support of DOE site management, and that site 

management has not always been responsive to these issues. The 

same ECP manager later contacted GAO to seek advice after 

receiving a concern from a contractor employee that calls into 

question a contractor’s quality assurance program, which is intended 

to ensure that the contractor’s work activities are performed in 

accordance with nuclear safety requirements. The ECP manager 

stated that he did not know who to trust. He said that given the 

importance of the issue reported, he had to tell the DOE site manager 

but was afraid that in doing so, the whistleblower’s identity would be 

discovered and that the contractor would seek retribution. In 

discussing issues related to anonymity, he said, “Knowing what I 

know about the ECP, if I had a concern, I would not use it.”

 69The subcontractor told us that he learned about this situation from the company for 

which the subcontractor was working at the time.
Page 47 GAO-16-618 Whistleblower Protections Need Strengthening

• At a third site, DOE’s response to evidence of a chilled work 

environment was to notify the contractor of the problem and continue 

to monitor the issue. Specifically, the DOE ECP manager at the site 

told us that he noticed a significant increase in the number of 

complaints coming from one contractor’s employees after the 

contractor’s ECP manager was terminated, allegedly for reasons 

including sharing information with GAO.70 After noticing an uptick in 

complaints, the DOE ECP manager prepared a report to document his 

analysis of the situation. According to the report, contractor 

employees said that the contractor’s ECP could not be trusted to 

objectively resolve issues and therefore, they were electing to come to 

DOE’s ECP office to raise their concerns. The report also contains the 

following comments from contractor employees that illustrate what 

these employees described as a chilled work environment:

• “We were told that if you talk to DOE, you will not be considered 

part of the team.”

• “They fired the [contractor] ECP Manager; what do you think they 

will do to me?”

• “They are eventually going to terminate anyone who files a 

concern with DOE. If they knew that I was talking to DOE, I would 

get fired.”

• “I would like to remain anonymous please due to the possibility of 

reprisal by senior management.”

• “Employees are very afraid to raise safety issues at the meetings, 

because they will be terminated or embarrassed.”

• “General Counsel dictates what the contractor ECP does. Nothing 

will be done without their approval.”

• “They will make an example of anyone who challenges them.”

In addition to the accounts of chilled work environment described above, 

during the course of our work we directly observed another situation that 

we believe created a chilled environment. Specifically, one of the 

contractors with which we met brought outside legal counsel to attend all 

meetings we had with representatives of the company—including the 

 70The contractor ECP manager alleges she was terminated for sharing information and 

speaking candidly with GAO about what she characterized as harassment and intimidating 

treatment by members of the senior staff.
Page 48 GAO-16-618 Whistleblower Protections Need Strengthening

contractors’ ECP manager. According to the outside counsel, he was at 

the meetings to “represent the witnesses.” During our meetings, the 

attorney advised his client not to answer certain questions or, in some 

cases, provided the answer for the client. The meetings with 

representatives of these contractors, unlike the meetings we had with 

other contractors, were extremely tense and did not result in a free 

exchange of information.

As part of our review, we examined another agency’s whistleblower 

processes—the Nuclear Regulatory Commission’s (NRC)—to learn more 

about how other agencies use employee concerns and allegations of 

retaliation as barometers for understanding the environment and targeting 

their enforcement activities. According to NRC officials, the commission 

uses employee concerns and allegations of retaliation as a basis for 

potential investigations and subsequent enforcement actions, as well as 

for monitoring licensees and ensuring they take appropriate actions to 

foster a workplace environment that encourages employees to raise 

safety concerns without fear of retaliation. NRC is concerned not only with 

“substantiated” retaliation but also monitors “alleged” or perceived 

retaliation because, according to NRC officials, alleged retaliation—even 

if unsubstantiated—has a similar impact on the workforce’s willingness to 

raise safety concerns and can be an indicator of a chilled work 

environment. NRC officials told us commission evaluates the number, 

receipt rate, and nature of concerns alleging retaliation, as well as 

inspection observations made about the work environment. As a result of 

its review, NRC may conclude that the work environment is not conducive 

to raising safety concerns. In such cases, NRC will issue a public letter 

notifying the licensee of its concerns with the safety conscious working 

environment, and requesting information on the licensee’s own 

assessment of the environment and proposed corrective actions. The 

letter is made public to ensure the workforce knows that NRC has 

engaged the licensee’s management on the subject and is monitoring 

actions to address the concern.

Federal standards for internal control state that management should 

evaluate performance and hold individuals responsible for their internal 

control responsibilities.71 Doing so includes enforcing accountability. 

 71GAO, Standards for Internal Control in the Federal Government, GAO-14-704G

(Washington, D.C.: September 2014).
Page 49 GAO-16-618 Whistleblower Protections Need Strengthening

However, DOE has not implemented practices that might allow the 

department to hold contractors accountable for addressing chilled work 

environments that may exist in pockets of their organizations, before the 

problems become more pervasive. Moreover, DOE’s reluctance to hold 

contractors accountable for chilled work environments may diminish 

contractor employee confidence in the mechanisms for raising concerns 

and seeking whistleblower protection.

DOE has taken steps to evaluate whether its contractors are fostering an 

environment that encourages a questioning attitude by all employees and 

is free of retribution—which is an important aspect of DOE’s Integrated 

Safety Management policy. Many of these evaluations, however, were 

flawed—particularly those evaluations that involved contractor selfassessments. Nonetheless, DOE has chosen to continue to rely on selfassessments. DOE has created a safety culture improvement panel to 

promote safety culture and develop metrics to monitor its culture, but the 

panel serves in an advisory role and DOE sites will not be required to 

follow its recommendations. Consequently, it is not clear whether this 

effort will address the long-standing challenges related to DOE’s and 

contractors’ ability to provide an open environment for raising concerns 

and adequately protect contractor employees from unlawful retaliation. 

Moreover, without an independent evaluation process that will allow DOE 

to routinely and accurately measure the openness of the environment and 

ensure that appropriate corrective actions are taken in response to 

evaluation results, DOE has no basis to judge whether its policies or 

improvement initiatives are effective.

Both DOE and contractor ECPs are to offer independent avenues for 

resolving employees’ concerns, and DOE’s ECP may provide an avenue 

for employees that may fear retribution or are otherwise reluctant to use a 

contractor-provided ECP. However, DOE’s ECP order and guidance do 

not address how contractor-provided ECPs should be structured or 

operated to ensure their independence, and do not include provisions for 

DOE to assess or verify the independence of contractor-provided ECPs. 

Further, DOE’s practice of referring and transferring contractor employee 

concerns back to the contractor potentially negates the benefit of having 

an ECP that is independent of the contractor. Without criteria and 

guidance that specify the appropriate placement of an ECP within an 

organization and establish protocols for transferring and referring 

concerns—including clarifying the circumstances under which DOE’s 

ECP is permitted to transfer and refer concerns to contractors and 

requiring approval of the contractor employee raising the concern—DOE 

Conclusions
Page 50 GAO-16-618 Whistleblower Protections Need Strengthening

does not have assurance that contractor employees have an independent 

avenue for resolving their concerns.

DOE’s whistleblower protection program—the 708 program—does not 

cover employees of DOE grantees and does not specifically cover 

disclosures made to GAO, Department of Justice officials, courts, or 

grand juries. In addition, certain procedural aspects of DOE’s 708 

program may be challenging for some whistleblowers to navigate. For 

some whistleblowers, the enhanced whistleblower protection pilot 

program may mitigate some of the challenges that the 708 program 

presents. However, the pilot program sunsets in January 2017, and DOE 

has not taken steps to evaluate the program’s merits or determine if it 

might mitigate some of the challenges associated with the 708 program. 

Moreover, it is not clear that DOE has been timely in implementing the 

pilot program because DOE does not have complete information on which 

contractors have adopted the pilot program or when they did so. We have 

ongoing work evaluating the implementation of the pilot program at 14 

federal executive agencies, including DOE. However, without evaluating 

the extent to which the pilot program has been implemented or whether it 

might mitigate existing challenges, DOE cannot be assured that 

contractor employees have an effective means by which to seek remedy 

for unlawful retaliation, and Congress may not have the information it 

needs as it considers whether to extend pilot.

DOE is unusual among federal agencies in that it regulates and inspects 

its own facilities to protect the safety and health of its workers and of the 

communities surrounding its vast complex of research laboratories. 

However, DOE determined in 2013 that it did not have the authority to 

enforce its policy stating that nuclear safety-related retaliation constitutes 

a nuclear safety violation, inhibiting its ability to take enforcement action.

Without codifying this policy in regulatory language, DOE is limited in its 

ability to take enforcement action for unlawful retaliation related to nuclear 

safety disclosures. It is incumbent on DOE to act as quickly as possible 

resolve this issue. Given DOE’s time frame for issuing a proposed rule in 

December 2017—itself a tentative date—DOE could take years before 

issuing a final rule confirming that its policy is enforceable. In addition, 

DOE has not routinely asked for information from the Department of 

Labor on whistleblower retaliation cases filed by DOE contractor 

employees, and DOE is not aware of cases that are adjudicated in state 

or federal court. Without this information, DOE’s ability to take 

enforcement action against unlawful retaliation is limited.
Page 51 GAO-16-618 Whistleblower Protections Need Strengthening

Moreover, DOE’s Integrated Safety Management policy and guidance 

states that DOE will hold contractors accountable for safety 

performance—which includes fostering an environment that encourages a 

questioning attitude by all employees and that is free of retribution; 

however, DOE has not used this policy to hold contractors accountable 

when presented with evidence of contractors that have created a chilled 

work environment. Because DOE’s policies and guidance do not clearly 

articulate what constitutes evidence of a chilled work environment or 

define the appropriate steps DOE should take to hold accountable 

contractors that create a chilled work environment, it may be difficult for 

DOE to effectively carry out its contractor oversight responsibilities.

We are making six recommendations in this report:

To improve DOE’s ability to evaluate and monitor the effectiveness of 

policies that call for all organizations, including contractors, to embrace a 

strong safety culture and create a work environment that encourages a 

questioning attitude by all employees, we recommend that the Secretary 

of Energy develop and implement an independent evaluation process for 

routinely and accurately measuring contractor employees’ willingness to 

raise safety and other concerns without fear of retaliation. This process 

should ensure that an independent third party develops, conducts, and 

consistently applies the evaluation methodology—which should include 

safeguards that protect anonymity. The process should also enable DOE 

to oversee and ensure that appropriate corrective actions are taken in 

response to evaluation results.

To help ensure that the organizational placement and practices of DOEand contractor- provided Employee Concerns Programs (ECP) do not 

inhibit contractor employees from raising safety and other concerns, we 

recommend that the Secretary of Energy revise DOE’s ECP order and 

guidance to (1) require that the organizational placement and practices of 

contractor ECP’s do not compromise or impair their independence, (2) 

clarify the circumstances under which DOE’s ECP is permitted to transfer 

and refer concerns to contractors, and notify or require approval of the 

contractor employee raising the concern, and (3) provide criteria for 

overseeing and evaluating the effectiveness and independence of 

contractor-provided ECPs.

To help ensure that Congress has the information it needs as it considers 

whether or not to make permanent the enhanced whistleblower pilot 

program and that DOE has assurance that contractor employees have an 

effective mechanism to seek remedy for unlawful retaliation, we 

Recommendations for 

Executive Action
Page 52 GAO-16-618 Whistleblower Protections Need Strengthening

recommend that the Secretary of Energy fully evaluate the extent to 

which the pilot program has been implemented and whether its provisions 

will mitigate challenges associated with DOE’s 708 program. This 

evaluation should include, at a minimum, an assessment of (1) 

contractors that have adopted the pilot program and the date they did so; 

(2) contractors that have not adopted the pilot program and an 

explanation of why not; (3) cases filed under the pilot program, if any; and 

(4) the pilot program’s potential for mitigating challenges associated with 

the 708 program.

To help improve DOE’s ability to take enforcement action against unlawful 

retaliation when appropriate and take action against contractors that 

create a chilled work environment, we recommend that the Secretary of 

Energy take the following three actions:

• Expedite the department’s time frames for codifying in regulatory 

language its policy that retaliation for nuclear safety-related 

disclosures is a nuclear safety violation and develop a specific 

schedule for issuing the proposed and final rules.

• Direct DOE’s Office of Enforcement to routinely collect information 

from the Department of Labor and other sources regarding 

substantiated cases of retaliation and take appropriate enforcement 

action.

• Revise DOE’s Integrated Safety Management policy and guidance to 

clarify what constitutes evidence of a chilled work environment and 

define the appropriate steps DOE should take to hold contractors 

accountable for creating a chilled work environment.

We provided DOE with a draft of this report for its review and comment. 

DOE provided written comments, which are reproduced in appendix III, 

and technical comments that were incorporated as appropriate. In its 

written comments, DOE concurred with five of our six recommendations. 

In its letter, DOE concurred with our second, fourth, and sixth 

recommendations and included planned actions and estimated 

completion dates to address them. Specifically, DOE agreed with our 

second recommendation to revise its ECP order and guidance to help 

ensure that the organizational placement and practices of DOE- and 

contractor- provided ECPs do not inhibit contractor employees from 

raising safety and other concerns. DOE agreed with our fourth 

recommendation to expedite the department’s time frames for codifying in 

Agency Comments 

and Our Evaluation
Page 53 GAO-16-618 Whistleblower Protections Need Strengthening

regulatory language its policy that retaliation for nuclear safety-related 

disclosures is a nuclear safety violation, and develop a specific schedule 

for issuing the proposed and final rules. DOE agreed with the sixth 

recommendation to revise DOE’s Integrated Safety Management policy 

and guidance to clarify what constitutes as evidence of a chilled work 

environment and define the appropriate steps DOE should take to hold 

contractors accountable for creating a chilled work environment. 

In written comments, DOE agreed with the first recommendation to 

develop and implement an independent evaluation process for routinely 

and accurately measuring contractor employees’ willingness to raise 

safety and other concerns without fear of retaliation. Specifically, in the 

enclosure to DOE’s letter, DOE includes information on its planned 

actions; stating that it would consider both the Nuclear Regulatory 

Commission’s monitoring processes and the Enterprise Assessments’ 

evaluation methodology in developing protocols for independently 

evaluating contractor employee willingness to raise concerns. However, 

in its letter, DOE states that it will continue to evaluate safety concerns 

during “select” independent assessments. Our recommendation is 

intended to broaden DOE’s use of independent assessments, not limit it 

to selected contractors. 

In its letter, DOE agreed with the fifth recommendation to routinely collect 

information from the Department of Labor and other sources regarding 

substantiated cases of retaliation and take appropriate enforcement 

action. However, in its written comments, DOE stated that the department 

considers this recommendation closed. Specifically, DOE stated that, in 

2014, DOE’s Office of Enforcement established mechanisms for routinely 

receiving quarterly information on retaliation claims submitted to and 

adjudicated by the Department of Labor. However, the recommendation 

also includes the collection of information from other sources. As noted in 

our report, this could include claims submitted to and adjudicated in state 

courts, for which DOE has not established such a mechanism. Moreover, 

as discussed in our report, in April 2016, when we asked DOE to provide 

documentation that demonstrated that it was routinely collecting 

information from the Department of Labor, DOE only provided information 

for the first two quarters of fiscal year 2016, rather than all quarters since 

the 2014 establishment of the mechanism. We do not believe that 

information from the first two quarters of 2016 represents routine 

collection of information. We reaffirm our position that DOE routinely 

collect information from the Department of Labor and other sources 

regarding substantiated cases of retaliation and take appropriate 

enforcement action. 
Page 54 GAO-16-618 Whistleblower Protections Need Strengthening

DOE stated in its written comments that it did not concur with our third 

recommendation to fully evaluate the extent to which the whistleblower 

protection pilot program has been implemented and whether the 

provisions of the pilot will mitigate challenges associated with DOE’s 

existing whistleblower protection program (the 708 program). In its written 

comments, DOE stated that the DOE Inspector General has implemented 

the pilot program in accordance with the National Defense Authorization 

Act of Fiscal Year 2013 and maintains responsibility for administering the 

program. DOE also stated that it does not have the authority to evaluate 

the activities of its Inspector General. As noted in the report, however, 

DOE, not the Inspector General, is responsible for implementing key 

elements of the program, including modifying existing contracts to make 

the pilot available to contractor employees. Therefore, our 

recommendation is aimed at DOE’s responsibility to know the extent to 

which it has modified existing contracts to make the pilot available to its 

contractors’ employees and to determine whether the provisions of the 

pilot will mitigate challenges associated with DOE’s existing whistleblower 

protection program. Although DOE did not concur with the 

recommendation, in its letter, DOE stated that it would, nevertheless, 

conduct a general comparison between the pilot program and DOE’s 

existing whistleblower program prior to any revisions to the 708 program. 

This action, if taken, is consistent with one aspect of our recommendation 

for DOE to assess the pilot’s potential for mitigating challenges 

associated with the 708 program. However, DOE has not indicated 

whether it has plans to revise the 708 program and, as discussed in the 

report, DOE does not have information on the extent to which it has 

implemented the pilot. Such information will help ensure that Congress 

has the information it needs as it considers whether or not to make 

permanent the enhanced whistleblower pilot program and that DOE has 

assurance that contractor employees have an effective mechanism to 

seek remedy for unlawful retaliation. Therefore, we reaffirm our position 

that DOE fully implement our recommendation and evaluate the extent to 

which the whistleblower protection pilot program has been implemented 

and whether the provisions of the pilot will mitigate challenges associated 

with DOE’s existing whistleblower protection program.

As agreed to with your offices, unless you publicly announce the contents 

of this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies of this report to the 

appropriate congressional committees, the Secretary of Energy, and 

other interested parties. In addition, the report will be available at no 

charge on the GAO website at http://www.gao.gov.
Page 55 GAO-16-618 Whistleblower Protections Need Strengthening

If you or your staff members have any questions about this report, please 

contact me at (202) 512-3841 or trimbled@gao.gov. Contact points for 

our Offices of Congressional Relations and Public Affairs may be found 

on the last page of this report. GAO staff who made major contributions to 

this report are listed in appendix IV.

David C. Trimble

Director, Natural Resources and Environment 
Appendix I: Mechanisms for Reporting 

Concerns or Seeking a Remedy for Unlawful 

Retaliation

Page 56 GAO-16-618 Whistleblower Protections Need Strengthening

The Department of Energy (DOE) has recognized disclosures by 

contractor employees to be a primary source of information on conditions 

that could negatively affect the quality or safety of operations at its 

contractor-operated facilities and sites. Federal laws, regulations, and 

DOE and contractor policies and procedures generally require that DOE 

contractors (1) maintain an open environment for raising safety concerns 

without fear of retaliation and (2) provide mechanisms for DOE contractor 

employees to raise safety or other concerns or seek whistleblower 

protections—that is, to seek a legal remedy for allegedly unlawful 

retaliation against employees for their protected disclosures. Table 1, 

below, describes some of the mechanisms for DOE contractor employees 

to raise concerns or seek a remedy for unlawful retaliation. Mechanisms 

in the table may not be available to all DOE contractor employees.

Table 1: Selected Mechanisms Available to DOE Contractor Employees for Raising Concerns or Seeking a Remedy for 

Unlawful Retaliation 

Mechanism Who Provides Authorities Description

Selected Mechanisms for Raising Concerns

“Open-door” policies Contractors Contractor policies and 

procedures

Policies affirming that contractor employees at any 

level of the company can raise safety or other 

concerns directly with the company’s Chief 

Executive Officer.

Employee safety 

councils/safety 

representatives

Contractors and labor 

unions

Contractor policies and 

procedures 

Employees who help oversee safety at Department 

of Energy (DOE) sites and represent employee 

safety concerns to contractor management and 

DOE. 

Issues tracking/corrective 

actions systems

DOE or contractors DOE or contractor 

policies and procedures

Electronic systems and processes at DOE facilities 

and sites for identifying, tracking, and resolving 

issues that could negatively affect the safety or 

efficiency of DOE’s operations. Issues reported into 

these systems by contractor employees and others 

may be assigned to an “owner” for potential followup and resolution.

Stop work policies DOE or contractors 10 C.F.R. Part 851 and 

DOE and contractor 

policies and procedures

Policies and procedures authorizing contractor 

employees and others to stop potentially 

dangerous work or activities that could harm DOE’s 

operations or the environment.

Appendix I: Mechanisms for Reporting 

Concerns or Seeking a Remedy for Unlawful 

Retaliation
Appendix I: Mechanisms for Reporting 

Concerns or Seeking a Remedy for Unlawful 

Retaliation

Page 57 GAO-16-618 Whistleblower Protections Need Strengthening

Mechanism Who Provides Authorities Description

Employee Concerns 

Programs (ECP)

DOE and contractors DOE Order 442.1A, DOE 

Guide 442.1A-1, and 

contractor policies and 

procedures

A primary mechanism for employees to raise or 

elevate concerns outside their chain of command. 

Employees submit safety or other concerns to local 

DOE or contractor ECP personnel through various 

means—such as in-person reporting at an ECP 

office or anonymously through a dedicated 

telephone hotline. ECP personnel evaluate 

concerns received and may try to address the 

concerns within the program or transfer the 

concerns outside the program for others to 

address.

Differing Professional 

Opinions programs

DOE and contractors DOE Order 442.2 and 

DOE or contractor 

policies and procedures

A formal process for resolving employees’ safety 

concerns that are technical and could not be 

resolved through other means, such as other 

mechanisms or interactions with peers and 

managers. Concerns are reviewed by an ad hoc 

panel, including technically knowledgeable 

persons, which recommends an outcome to an 

appointed decision maker. DOE’s order provides 

an opportunity to appeal the decision and requires 

concurrence from the applicable Under Secretary 

or Deputy Secretary if the decision maker does not 

adopt the panel’s recommendation. 

Selected Mechanisms for Seeking a Remedy for Unlawful Retaliation

Grievance-arbitration 

procedures

Contractors and labor 

unions

Collective bargaining 

agreements 

Collective bargaining agreements may provide for 

formal grievance processes, such as mediation or 

arbitration, which covered DOE contractor 

employees may use in order to obtain a remedy for 

their employer’s alleged whistleblower retaliation. 

American Recovery and 

Reinvestment Act 

(Recovery Act)

DOE Pub. L. No. 111-5 Program authorized under Section 1553 of the 

Recovery Act for providing whistleblower 

protections to non-federal employees—including 

DOE contractor employees—carrying out Recovery 

Act work. DOE’s Office of the Inspector General 

investigates the reprisal complaints and issues a 

report to the employee, the contractor, and the 

head of the agency, who decides the outcome. This 

agency decision may be challenged in federal 

court.

DOE Contractor 

Employee Protection 

Program

DOE 10 C.F.R. part 708 DOE’s primary whistleblower protection program 

for contractor employees seeking a remedy for 

potentially unlawful reprisals. Administrative Judges 

in DOE’s Office of Hearings and Appeals 

investigate and adjudicate reprisal complaints 

through a hearings and appeals process. 

Contractors found to have engaged in unlawful 

reprisals may be ordered to provide an appropriate 

remedy, such as rehiring and providing back pay to 

employees fired for making protected disclosures.
Appendix I: Mechanisms for Reporting 

Concerns or Seeking a Remedy for Unlawful 

Retaliation

Page 58 GAO-16-618 Whistleblower Protections Need Strengthening

Mechanism Who Provides Authorities Description

Pilot program for 

enhancement of 

contractor protection 

from reprisal

DOE 41 U.S.C. § 4712

(National Defense 

Authorization Act for 

Fiscal Year 2013, § 

828(a)(1))

Four-year pilot program to provide enhanced 

whistleblower protections for contractor employees 

at DOE and other agencies. Congress approved 

the pilot in 2013 in place of the then-existing 

contractor whistleblower program (at 41 U.S.C. 

§4705) that it suspended during the pilot. DOE’s 

Inspector General investigates reprisal complaints 

brought under the pilot and recommends an initial 

decision. The head of the agency decides the 

outcome of the complaint and may order the 

contractor to provide a remedy, which may be 

challenged in federal court. 

Whistleblower Protection 

Program

Occupational Safety and 

Health Administration 

(OSHA)

42 U.S.C. § 5851 OSHA’s program to investigate and adjudicate 

whistleblower retaliation complaints filed by DOE 

contractor employees under the Energy 

Reorganization Act.a This act gives OSHA 30 days 

to investigate a complaint. The agency may issue a 

preliminary order following a hearing before an 

administrative law judge. If the complaint has not 

been decided within a year of its filing, the 

complainant may bring suit in federal district court.

Source: GAO analysis of select DOE and contractor policies and procedures, as well as federal laws and regulations. | GAO-16-618

a

The Energy Reorganization Act is one of 21 federal statutes that provide whistleblower protections to 

nonfederal employees through the OSHA Whistleblower Protection Program. See GAO, 

Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program 

Quality and Consistency, GAO-09-106 (Washington, D.C.: Jan. 27, 2009).
Appendix II: Laws, Regulations, and Policies 

Governing Safety and Safety Enforcement at 

DOE’s Sites

Page 59 GAO-16-618 Whistleblower Protections Need Strengthening

Work performed at the Department of Energy’s (DOE) contractoroperated facilities and sites can involve potential exposure to highly 

radioactive wastes and other hazards. Federal laws, regulations, and 

DOE policies outline requirements for nuclear safety, worker safety and 

health, and DOE’s oversight responsibilities. Because DOE acts as its 

sites’ main safety regulator, these laws, regulations, and policies also 

govern DOE’s regulatory enforcement of its safety requirements. Table 2, 

below, describes selected laws, regulations, and DOE policies governing 

safety and safety enforcement at DOE sites.

Table 2: Selected Laws, Regulations, and Policies Governing Safety and Safety Enforcement at DOE Sites 

Name (citation) Description

Selected Laws, Regulations, and DOE Policies Governing Safety at DOE Sites

Atomic Energy Act of 1947, as amended

(42 U.S.C. § 2201(i)(3))

Gives the Department of Energy (DOE) authority to regulate safe and secure 

handling of nuclear materials at its sites.

Nuclear Safety Management

(10 C.F.R. part 830)

Governs safety of DOE nuclear facilities and sites. Requires DOE contractors to 

implement safety requirements in a manner that provides the “reasonable assurance”

of adequate protection of workers, the public, and the environment from adverse 

consequences of plutonium and other radioactive materials, taking into account the 

work to be performed and the associated hazards. Contractors must, with DOE 

approval, establish safety documents, quality assurance programs, and other 

procedures for identifying and controlling nuclear hazards.

Worker Safety and Health Program

(10 C.F.R. part 851)

Governs worker safety and health for nonnuclear hazards at most DOE sites—

including chemical, biological, and other hazards—with potential to cause illness, 

injury, or death. Requires DOE contractors to establish programs and procedures for 

identifying and abating safety and health hazards, as well as mechanisms for 

employees to raise concerns and stop potentially dangerous work activities. The 

regulation establishes DOE’s process for taking enforcement actions against 

contractors for failing to comply with the standards. DOE’s Chronic Beryllium Disease 

Prevention Program (10 C.F.R. Part 850) supplements the worker safety and health 

standards in Part 851 and is one of DOE’s main safety regulations, according to DOE 

officials.

Integrated Safety Management Policy

(DOE Policy 450.4A)

Establishes DOE’s expectation that all contractor and DOE organizations will 

integrate safety into all aspects of their operations and embrace a strong safety 

culture, including an environment free from retaliation. The policy and associated 

guidance establish requirements for integrating safety and expectations for 

contractors to foster open communication and an environment free from retaliation 

and for DOE managers to evaluate and develop strategies to improve the safety 

culture

Appendix II: Laws, Regulations, and Policies 

Governing Safety and Safety Enforcement at 

DOE’s Sites
Appendix II: Laws, Regulations, and Policies 

Governing Safety and Safety Enforcement at 

DOE’s Sites

Page 60 GAO-16-618 Whistleblower Protections Need Strengthening

Name (citation) Description

Selected Laws, Regulations, and DOE Policies Governing DOE’s Safety Enforcement

Price Anderson Amendments Act of 1988

(Pub. L. 100-408)

Provides indemnification for contractors, subcontractors, and suppliers that conduct 

nuclear activities for DOE. The act also authorizes DOE to assess monetary penalties 

against such entities that violate nuclear safety requirements.

Procedural Rules for Nuclear Activities

(10 C.F.R. Part 820)

Outlines DOE’s enforcement procedures for achieving compliance with nuclear safety 

requirements, including investigating possible safety violations and assessing 

monetary penalties, among other things. An appendix to the procedural rules 

provided a general statement of DOE’s enforcement policy, in which DOE outlined 

the purpose of its enforcement program, such as to ensure safety and encourage 

prompt reporting and resolution of safety deficiencies. In April 2000, DOE amended 

this general statement to clarify DOE’s intent to consider, as a possible basis for 

enforcement, evidence from whistleblower proceedings under DOE’s Contractor 

Employee Protection Program and OSHA’s whistleblower program. 

DOE Enforcement Process DOE’s Safety and 

Security Enforcement Process Overview and 

Safety and Security Enforcement Coordinator 

Handbook (Aug. 2012)

Provide information and guidance for DOE and contractor personnel responsible for 

safety enforcement. Describe DOE’s enforcement program, including expectations for 

contractors to self-report about their noncompliance with safety requirements and 

DOE’s process for investigating possible safety violations and determining the 

appropriate enforcement outcome.

Source: GAO analysis of relevant laws, regulations, and policies. | GAO-16-618

Note: GAO selected laws, regulations, and policies governing safety and safety enforcement most 

relevant to operations at defense nuclear sites.
Appendix III: Comments from the Department 

of Energy

Page 61 GAO-16-618 Whistleblower Protections Need Strengthening

Appendix III: Comments from the 

Department of Energy
Appendix III: Comments from the Department 

of Energy

Page 62 GAO-16-618 Whistleblower Protections Need Strengthening
Appendix III: Comments from the Department 

of Energy

Page 63 GAO-16-618 Whistleblower Protections Need Strengthening
Appendix III: Comments from the Department 

of Energy

Page 64 GAO-16-618 Whistleblower Protections Need Strengthening
Appendix III: Comments from the Department 

of Energy

Page 65 GAO-16-618 Whistleblower Protections Need Strengthening
Appendix IV: GAO Contact and Staff 

Acknowledgments

Page 66 GAO-16-618 Whistleblower Protections Need Strengthening

David C. Trimble, (202) 512-3841 or trimbled@gao.gov

In addition to the contact named above, Diane LoFaro (Assistant 

Director), Rich Johnson, Emily Norman, Alison O’Neill, Kelly Rubin, and 

Jeff Rueckhaus made key contributions to this report.

Appendix IV: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgments

(361580)
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