10 C.F.R. Subpart A—General Provisions
Title 10 - Energy
This part provides procedures for processing complaints by employees of DOE contractors alleging retaliation by their employers for disclosure of information concerning danger to public or worker health or safety, substantial violations of law, or gross mismanagement; for participation in Congressional proceedings; or for refusal to participate in dangerous activities. For purposes of this part: Contractor means a seller of goods or services who is a party to: (1) A management and operating contract or other type of contract with DOE to perform work directly related to activities at DOE-owned or -leased facilities, or (2) A subcontract under a contract of the type described in paragraph (1) of this definition, but only with respect to work related to activities at DOE-owned or -leased facilities. Day means a calendar day. Discovery means a process used to enable the parties to learn about each other's evidence before a hearing takes place, including oral depositions, written interrogatories, requests for admissions, inspection of property and requests for production of documents. DOE Official means any officer or employee of DOE whose duties include program management or the investigation or enforcement of any law, rule, or regulation relating to Government contractors or the subject matter of a contract. EC Director means the Director of the Office of Employee Concerns at DOE Headquarters, or any official to whom the Director delegates his or her functions under this part. Employee means a person employed by a contractor, and any person previously employed by a contractor if that person's complaint alleges that employment was terminated for conduct described in §708.5 of this subpart. Field element means a DOE field-based office that is responsible for the management, coordination, and administration of operations at a DOE facility. Head of Field Element means the manager or head of a DOE operations office or field office, or any official to whom those individuals delegate their functions under this part. Hearing Officer means an individual appointed by the OHA Director to conduct a hearing on a complaint filed under this part. Management and operating contract means an agreement under which DOE contracts for the operation, maintenance, or support of a Government-owned or -leased research, development, special production, or testing establishment that is wholly or principally devoted to one or more of the programs of DOE. Mediation means an informal, confidential process in which a neutral third person assists the parties in reaching a mutually acceptable resolution of their dispute; the neutral third person does not render a decision. OHA Director means the Director of the Office of Hearings and Appeals, or any official to whom the Director delegates his or her functions under this part. Party means an employee, contractor, or other party named in a proceeding under this part. Retaliation means an action (including intimidation, threats, restraint, coercion or similar action) taken by a contractor against an employee with respect to employment (e.g., discharge, demotion, or other negative action with respect to the employee's compensation, terms, conditions or privileges of employment) as a result of the employee's disclosure of information, participation in proceedings, or refusal to participate in activities described in §708.5 of this subpart. You means the employee who files a complaint under this part, or the complainant. This part applies to a complaint of retaliation filed by an employee of a contractor that performs work on behalf of DOE, directly related to activities at a DOE-owned or -leased site, if the complaint stems from a disclosure, participation, or refusal described in §708.5. If you are an employee of a contractor, you may not file a complaint against your employer under this part if: (a) The complaint is based on race, color, religion, sex, age, national origin, or other similar basis; or (b) The complaint involves misconduct that you, acting without direction from your employer, deliberately caused, or in which you knowingly participated; or (c) Except as provided in §708.15(a), the complaint is based on the same facts for which you have chosen to pursue a remedy available under: (1) Department of Labor regulations at 29 CFR part 24, “Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes;” (2) Federal Acquisition Regulations, 48 CFR part 3, “Federal Acquisition Regulation; Whistleblower Protection for Contractor Employees (Ethics);” or (3) State or other applicable law, including final and binding grievance-arbitration, as described in §708.15 of subpart B; or (d) The complaint is based on the same facts in which you, in the course of a covered disclosure or participation, improperly disclosed Restricted Data, national security information, or any other classified or sensitive information in violation of any Executive Order, statute, or regulation. This part does not override any provision or requirement of any regulation pertaining to Restricted Data, national security information, or any other classified or sensitive information; or (e) The complaint deals with “terms and conditions of employment” within the meaning of the National Labor Relations Act, except as provided in §708.5. If you are an employee of a contractor, you may file a complaint against your employer alleging that you have been subject to retaliation for: (a) Disclosing 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, your employer, or any higher tier contractor, information that you 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; or (b) Participating in a Congressional proceeding or an administrative proceeding conducted under this part; or (c) Subject to §708.7 of this subpart, refusing to participate in an activity, policy, or practice if you believe participation would— (1) Constitute a violation of a federal health or safety law; or (2) Cause you to have a reasonable fear of serious injury to yourself, other employees, or members of the public. [57 FR 7541, Mar. 3, 1992, as amended at 65 FR 6319, Feb. 9, 2000] Participation in an activity, policy, or practice may cause an employee to have a reasonable fear of serious injury that justifies a refusal to participate if: (a) A reasonable person, under the circumstances that confronted the employee, would conclude there is a substantial risk of a serious accident, injury, or impairment of health or safety resulting from participation in the activity, policy, or practice; or (b) An employee, because of the nature of his or her employment responsibilities, does not have the training or skills needed to participate safely in the activity or practice. [57 FR 7541, Mar. 3, 1992, as amended at 65 FR 6319, Feb. 9, 2000] You may file a complaint for retaliation for refusing to participate in an activity, policy, or practice only if: (a) Before refusing to participate in the activity, policy, or practice, you asked your employer to correct the violation or remove the danger, and your employer refused to take such action; and (b) By the 30th day after you refused to participate, you reported the violation or dangerous activity, policy, or practice to a DOE official, a member of Congress, another government official with responsibility for the oversight of the conduct of operations at the DOE site, your employer, or any higher tier contractor, and stated your reasons for refusing to participate. The procedures in this part apply prospectively in any complaint proceeding pending on the effective date of this part. Under this part, a complaint or other document is considered “filed” on the date it is mailed or on the date it is personally delivered to the specified official or office.
Title 10: Energy
PART 708—DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM
Subpart A—General Provisions
§ 708.1 What is the purpose of this part?
§ 708.2 What are the definitions of terms used in this part?
§ 708.3 What employee complaints are covered?
§ 708.4 What employee complaints are not covered?
§ 708.5 What employee conduct is protected from retaliation by an employer?
§ 708.6 What constitutes “a reasonable fear of serious injury?”
§ 708.7 What must an employee do before filing a complaint based on retaliation for refusal to participate?
§ 708.8 Does this part apply to pending cases?
§ 708.9 When is a complaint or other document considered to be “filed” under this part?
