The whistleblower implications of radiation injury lawsuits: lessons learned from In re McCafferty

While it is widely known that strict regulations protect nuclear workers who raise safety-related concerns, few are aware that the riling of a claim for radiation-related injuries has been interpreted to constitute a "protected activity" under the Energy Reorganization Act, which endows the claimant with "whistleblower" status. This means that negative employment-related actions taken against a radiation injury claimant can result in detrimental, even draconian, consequences for the employer involved. The case of In re McCafferty illustrates this vividly. The claimants in McCafferty were six contract insulators who filed lawsuits for emotional distress they claimed to have suffered due to exposures they received at Centerior Energy's Davis-Besse nuclear plant. Because of the pending lawsuit and claim for emotional distress, Centerior denied all six claimants access to Centerior's plants, which resulted in their being terminated by their employer. The claimants brought an action with the Department of Labor, succeeded in convincing the Administrative Review Board that Centerior's actions constituted retaliation under the ERA "whistleblower" provision, and were afforded nearly full relief on their claims. This article explains how Centerior's actions ran afoul of the Energy Reorganization Act's "whistleblower" provision. It also describes what licensees and their subcontractors can do if faced with similar circumstances.