II 

114TH CONGRESS 

2D SESSION S. 3394 

To amend the Energy Reorganization Act of 1974 to modify provisions 

relating to protection of the employees of the Department of Energy 

and the Nuclear Regulatory Commission. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 26, 2016 

Mr. WYDEN (for himself, Mr. MARKEY, and Mrs. MCCASKILL) introduced the 

following bill; which was read twice and referred to the Committee on Energy and Natural Resources 

A BILL 

To amend the Energy Reorganization Act of 1974 to modify 

provisions relating to protection of the employees of the 

Department of Energy and the Nuclear Regulatory Commission. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Department of Energy 

5 Whistleblower Accountability Act’’. 


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1 SEC. 2. DEPARTMENT OF ENERGY AND NUCLEAR REGU2 LATORY COMMISSION EMPLOYEE PROTEC3 TION. 

4 (a) IN GENERAL.—Section 211 of the Energy Reor5 ganization Act of 1974 (42 U.S.C. 5851) is amended— 

6 (1) in subsection (a)— 

7 (A) by striking ‘‘(a)(1) No employer’’ and 

8 inserting the following: 

9 ‘‘(a) DISCRIMINATION AGAINST EMPLOYEES.— 

10 ‘‘(1) IN GENERAL.—No employer’’; 

11 (B) in paragraph (1)— 

12 (i) in the matter preceding subpara13 graph (A), by striking ‘‘his’’; 

14 (ii) by striking subparagraph (A) and 

15 inserting the following: 

16 ‘‘(A) notified the employer or an employee 

17 concerns program of— 

18 ‘‘(i) an alleged violation of— 

19 ‘‘(I) this Act; or 

20 ‘‘(II) the Atomic Energy Act of 

21 1954 (42 U.S.C. 2011 et seq.); or 

22 ‘‘(ii) a violation of any law, rule, or 

23 regulation, an instance of gross mis24 management, gross waste of funds, or 

25 abuse of authority, or a substantial and 

26 specific danger to public health or safety;’’; 


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1 (iii) in subparagraph (B), by inserting 

2 ‘‘described in subparagraph (A) or other3 wise’’ after ‘‘any practice’’; 

4 (iv) in subparagraph (C), by striking 

5 ‘‘testified before Congress or at any Fed6 eral or State proceeding regarding any pro7 vision’’ and inserting the following: ‘‘dis8 closed to a Member of Congress or a rep9 resentative of a committee of Congress, the 

10 Government Accountability Office, or an 

11 Inspector General, or testified before Con12 gress or at a Federal or State proceeding 

13 regarding— 

14 ‘‘(i) an alleged violation or incident 

15 described in subparagraph (A); or 

16 ‘‘(ii) any provision’’; 

17 (v) in subparagraph (D)— 

18 (I) by striking ‘‘a proceeding 

19 under’’ and inserting the following: ‘‘a 

20 proceeding— 

21 ‘‘(i) under’’; 

22 (II) in clause (i) (as so des23 ignated), by striking ‘‘1954, as 

24 amended, or a proceeding for’’ and inVerDate Sep 11 2014 02:19 Sep 28, 2016 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3394.IS S3394

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1 serting the following: ‘‘1954 (42 

2 U.S.C. 2011 et seq.); 

3 ‘‘(ii) for’’; 

4 (III) in clause (ii) (as so des5 ignated), by striking ‘‘, as amended;’’ 

6 and inserting ‘‘; or’’; and 

7 (IV) by adding at the end the fol8 lowing: 

9 ‘‘(iii) involving an alleged violation or 

10 incident described in subparagraph (A);’’; 

11 (vi) in subparagraph (E), by striking 

12 ‘‘any such proceeding or;’’ and inserting 

13 ‘‘any proceeding described in subparagraph 

14 (D); or’’; and 

15 (vii) in subparagraph (F), by striking 

16 ‘‘, as amended’’; and 

17 (C) in paragraph (2)— 

18 (i) by redesignating subparagraphs 

19 (A) through (G) as subclauses (I) through 

20 (VII), respectively, and indenting the sub21 clauses appropriately; 

22 (ii) by striking ‘‘(2) For purposes of 

23 this section, the term’’ and inserting the 

24 following: 

25 ‘‘(2) DEFINITIONS.—In this section: 


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1 ‘‘(A) EMPLOYER.— 

2 ‘‘(i) IN GENERAL.—The term’’; 

3 (iii) in subparagraph (A) (as so redes4 ignated)— 

5 (I) in subclause (IV) of clause (i) 

6 (as so redesignated), by striking ‘‘, 

7 but’’ and all that follows through 

8 ‘‘12344’’; and 

9 (II) by adding at the end the fol10 lowing: 

11 ‘‘(ii) EXCLUSION.—The term ‘em12 ployer’ does not include any contractor or 

13 subcontractor covered by Executive Order 

14 12344 (47 Fed. Reg. 4979 (February 3, 

15 1982)).’’; and 

16 (iv) by adding at the end the fol17 lowing: 

18 ‘‘(B) SECRETARY.—The term ‘Secretary’ 

19 means the Secretary of Labor.’’; 

20 (2) in subsection (b)— 

21 (A) by striking ‘‘(b)(1) Any employee who 

22 believes that he’’ and inserting the following: 

23 ‘‘(b) COMPLAINTS; ACTION BY SECRETARY.— 

24 ‘‘(1) COMPLAINTS.— 


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1 ‘‘(A) IN GENERAL.—Any employee who be2 lieves that the employee’’; 

3 (B) in subparagraph (A) of paragraph (1) 

4 (as so redesignated)— 

5 (i) in the first sentence— 

6 (I) by striking ‘‘180 days’’ and 

7 inserting ‘‘1 year’’; and 

8 (II) by striking ‘‘of Labor (in 

9 this section referred to as the ‘Sec10 retary’)’’; and 

11 (ii) in the second sentence, by striking 

12 ‘‘Upon receipt of such a complaint’’ and 

13 inserting the following: 

14 ‘‘(B) NOTIFICATION.—On receipt of a 

15 complaint under subparagraph (A)’’; 

16 (C) in paragraph (2)— 

17 (i) by striking ‘‘(2)(A) Upon receipt’’ 

18 and inserting the following: 

19 ‘‘(2) ACTION BY SECRETARY.— 

20 ‘‘(A) INVESTIGATIONS; ORDERS; LIMITA21 TION ON SETTLEMENT.— 

22 ‘‘(i) INVESTIGATIONS.— 

23 ‘‘(I) IN GENERAL.—On receipt’’; 

24 (ii) in subparagraph (A) (as so redes25 ignated)— 


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1 (I) in the second sentence, by 

2 striking ‘‘Within 30 days of the’’ and 

3 inserting the following: 

4 ‘‘(II) COMPLETION.—Not later 

5 than 30 days after the date of’’; 

6 (II) in the third sentence, by 

7 striking ‘‘Within ninety days of the 

8 receipt of such complaint’’ and insert9 ing the following: 

10 ‘‘(ii) ORDERS.— 

11 ‘‘(I) IN GENERAL.—Not later 

12 than 90 days after the date of receipt 

13 of a complaint under paragraph (1)’’; 

14 (III) in the fourth sentence, by 

15 striking ‘‘An order’’ and inserting the 

16 following: 

17 ‘‘(II) PUBLIC NOTICE AND PAR18 TICIPATION.—An order’’; 

19 (IV) in the fifth sentence, by 

20 striking ‘‘Upon the conclusion of such 

21 hearing’’ and inserting the following: 

22 ‘‘(III) PRELIMINARY ORDERS.— 

23 On conclusion of a hearing under sub24 clause (II)’’; 


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1 (V) in the sixth sentence, by 

2 striking ‘‘The Secretary’’ and insert3 ing the following: 

4 ‘‘(iii) LIMITATION ON SETTLEMENT.— 

5 The Secretary’’; and 

6 (VI) in clause (i) (as so des7 ignated), by adding at the end the fol8 lowing: 

9 ‘‘(III) REQUEST FOR ADMINIS10 TRATIVE HEARING.—If the Secretary 

11 has not issued any finding relating to 

12 an investigation under this clause by 

13 the date that is 180 days after the 

14 date on which the relevant complaint 

15 was filed under paragraph (1), and if 

16 there is no showing that the delay is 

17 due to the bad faith of the complain18 ant, the complainant may request a 

19 hearing on the complaint before an 

20 administrative law judge of the De21 partment of Labor.’’; and 

22 (iii) in subparagraph (B)— 

23 (I) by striking ‘‘(B) If’’ and in24 serting the following: 

25 ‘‘(B) SECRETARIAL ORDERS.— 


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1 ‘‘(i) IN GENERAL.—If’’; 

2 (II) in the first sentence— 

3 (aa) by striking ‘‘the Sec4 retary shall order the person who 

5 committed such violation to (i) 

6 take affirmative action to abate 

7 the violation, and (ii) reinstate’’ 

8 and inserting the following: ‘‘the 

9 Secretary— 

10 ‘‘(I) shall order the person who 

11 committed the violation— 

12 ‘‘(aa) to take affirmative ac13 tion to abate the violation; and 

14 ‘‘(bb) to reinstate’’; and 

15 (bb) by striking ‘‘his em16 ployment, and the Secretary may 

17 order such person’’ and inserting 

18 the following: ‘‘employment; and 

19 ‘‘(II) may order the person’’; 

20 (III) in the second sentence, by 

21 striking ‘‘If an order’’ and inserting 

22 the following: 

23 ‘‘(ii) COSTS AND EXPENSES.— 

24 ‘‘(I) IN GENERAL.—Subject to 

25 subclause (II), if an order’’; and 


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1 (IV) in clause (ii) (as so des2 ignated), by adding at the end the fol3 lowing: 

4 ‘‘(II) LIMITATION.—The Sec5 retary shall assess all administrative 

6 and litigation costs and attorneys fees 

7 incurred under this section only 

8 against the responsible contractor of 

9 the Commission or the Department of 

10 Energy, unless that contractor dem11 onstrates to the satisfaction of the 

12 Secretary that the Commission or the 

13 Department of Energy, as applicable, 

14 contributed to, or caused, the violation 

15 by the contractor. 

16 ‘‘(III) EXEMPLARY DAMAGES; 

17 DEBARMENT; SUSPENSION.—The Sec18 retary may assess exemplary damages, 

19 and debar, suspend, delicense, or take 

20 any similar action, against any em21 ployer or responsible employee of an 

22 employer against whom an order is 

23 issued under this subparagraph, as 

24 the Secretary determines to be appro25 priate to deter employer retaliation 


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1 against employees who report con2 cerns or carry out other activities pro3 tected under this section.’’; and 

4 (D) in paragraph (4), by inserting ‘‘(in5 cluding a demand for a jury trial)’’ after ‘‘de 

6 novo review’’; 

7 (3) in subsection (e)(2), by striking ‘‘(2) The 

8 court’’ and inserting the following: 

9 ‘‘(2) COSTS OF LITIGATION.—Subject to the 

10 limitation described in subsection (b)(2)(B)(ii)(II), a 

11 United States district court’’; 

12 (4) in subsection (g)— 

13 (A) by striking ‘‘causes a violation’’ and 

14 inserting the following: ‘‘causes— 

15 ‘‘(1) a violation’’; and 

16 (B) by striking ‘‘1954, as amended.’’ and 

17 inserting the following: ‘‘1954 (42 U.S.C. 2011 

18 et seq.); or 

19 ‘‘(2) an incident described in subsection 

20 (a)(1)(A)(ii).’’; and 

21 (5) in subsection (i)— 

22 (A) by striking ‘‘(i) The provisions’’ and 

23 inserting the following: 

24 ‘‘(i) DUTIES AND AUTHORITY OF DEPARTMENT OF

25 ENERGY AND COMMISSION.— 


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1 ‘‘(1) POSTING REQUIREMENT.—The Secretary 

2 of Energy and the Chairperson of the Commission, 

3 as applicable, shall ensure that the provisions’’; and 

4 (B) by adding at the end the following: 

5 ‘‘(2) CONTRACTOR AND EMPLOYEE SANC6 TIONS.—The Secretary of Energy or the Chair7 person of the Commission may sanction any officer 

8 or employee of the Department of Energy or the 

9 Commission, as applicable, who exercises manage10 ment direction over a contractor who is the subject 

11 of a complaint filed under this section in any case 

12 in which the Secretary of Energy or the Chairperson 

13 determines that— 

14 ‘‘(A) the complaint against the contractor 

15 is substantiated; and 

16 ‘‘(B) the officer or employee of the Depart17 ment of Energy or the Commission, as applica18 ble, directly or indirectly permitted or sanc19 tioned the violation or incident that was the 

20 subject of the complaint.’’. 

21 (b) CONFORMATION OF CONTRACTS.— 

22 (1) IN GENERAL.—Notwithstanding any other 

23 provision of law, not later than 180 days after the 

24 date of enactment of this Act, the Secretary of En25 ergy and the Chairperson of the Nuclear Regulatory 


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1 Commission shall modify all contracts of the Depart2 ment of Energy and the Nuclear Regulatory Com3 mission, respectively, as the Secretary and the 

4 Chairperson determine to be necessary to conform 

5 the contracts to the applicable requirements of sec6 tion 211 of the Energy Reorganization Act of 1974 

7 (42 U.S.C. 5851) (as amended by subsection (a)). 

8 (2) EFFECT OF FAILURE TO CONFORM.—A fail9 ure by the Secretary of Energy or the Chairperson 

10 of the Nuclear Regulatory Commission to modify a 

11 contract in accordance with paragraph (1) shall not 

12 affect the ability of any employee of the Department 

13 of Energy or the Nuclear Regulatory Commission to 

14 file a complaint under an applicable provision of sec15 tion 211 of the Energy Reorganization Act of 1974 

16 (42 U.S.C. 5851) (as amended by subsection (a)). 

Æ 


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