Energy Policy Act of 2005

Signed into law by George W. Bush
August 08, 2005

Best known for changing day light savings time, the Energy Policy Act of 2005 also contains three amendments to the Energy Reorganization Act of 1974 (“ERA”). The first amendment, contained in Section 627 prohibits the Department of Energy from reimbursing a contractor or subcontractor for legal fees incurred subsequent to an ALJ finding against the contractor or subcontractor on the merits, unless the ALJ’s determination is reversed on appeal. This amendment applies to contracts entered into after the date of enactment.

The second and third amendments, contained in Section 629, extend liability under the ERA whistleblower provision to the Nuclear Regulatory Commission, contractors or subcontractors of the Commission, and the Department of Energy. They also permit complainants to remove ERA whistleblower cases from the Department of Labor to federal district court after a case has been pending for one year. The removal is similar to the process utilized under Section 806 of the Sarbanes-Oxley Act.

Enforcement & Remedies

Claims of retaliation are enforced by the Occupational Safety and Health Administration (OSHA). Complaints must be filed within 180 days of the retaliatory action. OSHA will investigate the claim and may order preliminary relief such as job reinstatement.

Either party can appeal the OSHA outcome by requesting a hearing before a DOL Administrative Law Judge (ALJ). Either party can appeal an ALJ’s decision to the DOL’s Administrative Review Board (ARB). An ARB decision can be appealed to federal court.

A prevailing employee is entitled to “make whole” relief. Remedies may include: (1) reinstatement; (2) back pay; (3) compensatory damages; and (4) attorney fees and litigation costs, including expert witness fees.