Answer: No. The employer acted appropriately due to the employees’ "reckless disregard" for the potential hazards associated with these tests. The court noted that "regardless of their motives, good or bad, petitioners moved knowingly and dangerously beyond their authority when, on their own, and fully aware that their employer would not approve, they conducted experiments inherently fraught with danger." The employees acted deliberately and without direction from management when they knowingly conducted tests in violation of requirements of the Nuclear Regulatory Commission (NRC). In addition, the employees knew that their tests could produce conditions "sufficiently perilous to set off alarms" at the nuclear facility.
The employees based their claims of discrimination on a federal statute designed to protect employees who "blow the whistle" on their employers. This statute may be found at Title 42 of the United States Code, §5851. Specifically, the statute prohibits an employer from discriminating against an employee because the employee—
- notified the employer of an alleged unlawful activity, or
- refused to engage in an unlawful activity if he or she has identified the illegality to the employer.
However, the statute also contains a provision that renders its protections inapplicable to employees who deliberately engage in unlawful activities without direction from the employer. Because the employees in the present case deliberately conducted unauthorized tests that they knew would violate standards established by the NRC, their actions were not protected by the whistleblower statute.
Cite: David A. Fields, Robert P. Weiss, et al, Petitioners, vs. United States Department of Labor Administrative Review Board, Respondent, 11thCir, 138 LC 10,445.
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