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Nuclear Employers No Longer Shielded from Whistleblower State Tort Claims: Fallout from English V Hofstra Labor and Employment Law Journal Volume 8 | Issue 2 Article 7 1991 Nuclear Employers No Longer Shielded From Whistleblower State Tort Claims: Fallout From English v. General Electric Company Thomas Michael Rittweger Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlelj Part of the Law Commons Recommended Citation Rittweger, Thomas Michael (1991) "Nuclear Employers No Longer Shielded From Whistleblower State Tort Claims: Fallout From English v. General Electric Company," Hofstra Labor and Employment Law Journal: Vol. 8: Iss. 2, Article 7. Available at: http://scholarlycommons.law.hofstra.edu/hlelj/vol8/iss2/7 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Labor and Employment Law Journal by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Rittweger: Nuclear Employers No Longer Shielded From Whistleblower State Tor COMMENT NUCLEAR EMPLOYERS NO LONGER SHIELDED FROM WHISTLEBLOWER STATE TORT CLAIMS: FALLOUT FROM ENGLISH v. GENERAL ELECTRIC COMPANY' I. INTRODUCTION In 1978, Congress amended the Energy Reorganization Act of 1974,2 adding section 210.a This amendment provided employees in the nuclear industry with a valuable federal statute to combat work- place discrimination.4 This law created a federal remedy to deter re- 1. 496 U.S_ 110 S. Ct. 2270 (1990). 2. See 42 U.S.C. §§ 5801-5891 (1988). The Congress hereby declares that the general welfare and the common defense and security require effective action to develop, and increase the efficiency and reliability of use of, all energy sources to meet the needs of present and future generations, to increase the productivity of the national economy and strength its position in regard to international trade, to make the Nation self-sufficient in energy, to advance the goals of restoring, protecting, and enhancing environmental quality, and to assure public health and safety. 42 U.S.C. § 5801 (a) (1988). 3. See 42 U.S.C. § 5851 (a) (1988) (protecting any person whose employer is licensed by the Nuclear Regulatory Commission ("NRC"), or has applied for a license, or is a contrac- tor or subcontractor of a NRC licensee or applicant). 4. See 42 U.S.C. § 5851 (a) (1988). "No employer. may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, condi- tions, or privileges of employment . ." 42 U.S.C. § 5851 (a) (1988); but see National Labor Relations Act, § 8 (a) (3), 29 U.S.C. § 158 (a) (3) (1988). "It shall be unfair labor practice for an employer by discrimination in regard to hire or tenure of employment . to encourage or discourage membership in any labor organization." 29 U.S.C. § 158 (a) (3) (1988). Published by Scholarly Commons at Hofstra Law, 1991 1 Hofstra Labor and Employment Law Journal, Vol. 8, Iss. 2 [1991], Art. 7 Hofstra Labor Law Journal [Vol. 8:2 taliation5 against "whistleblowers" who might highlight possible health or safety problems at nuclear facilities.6 However, in spite of this federal legislation, many employees have elected to sue in state court or pursue litigation in both federal and state forums.1 Conse- quently, numerous recent decisions raised the question of whether state actions were preempted by the federal statute.8 English v. General.Electric Company9 narrowed the scope of the federal whistleblower statute. In deciding the question of whether federal law preempted a state law cause of action for inten- tional infliction of emotional distress resulting from retaliatory em- ployer conduct, the United States Supreme Court held that peti- tioner's tort claim was not preempted. 10 Moreover, the Court opened the door to future punitive damage claims." The preemption defense will no longer shield nuclear industry employers who discriminate against whistleblowers and, conse- quently, are sued under a state tort claim. 12 As these suits become 5. See 42 U.S.C. § 5851 (b) (1988). If. the Secretary [of Labor] determines that a violation of subsection (a) of this section has occurred, the Secretary shall order the person who committed such vio- lation to (i) take affirmative actioji to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant. 42 U.S.C. § 5851 (b) (2) (B) (1988); see also 42 U.S.C. § 5851 (d) (1988). "Whenever a person has failed to comply with an order issued under subsection (b) (2) of this section, the Secretary may file a civil action in . United States district court . [which] shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief, com- pensatory, and exemplary damages." 42 U.S.C. § 5851 (d) (1988). 6. See Kohn & Carpenter, Nuclear Whistleblower Protection and the Scope of Pro- tected Activity under Section 210 of the Energy Reorganization Act, 4 ANTiOcH L.J. 73, 74 (1986) (defining a whistleblower as an employee who discloses conduct by his or her employer which the employee reasonably believes to be "a violation of any law, rule or regulation, mis- management, corruption, abuse of authority or threat to public health and safety at the work- site"). Id. 7. See Note, Wrongful Discharge and Federal Preemptiorn Nuclear Whistleblower Protection under State Law and Section 210 of the Energy Reorganization Act, 17 B.C. ENV. AFF. L. REV. 405, 408-21 (1990). 8. See infra notes 164-206 and accompanying text (discussing jurisdictional conflicts within the scope of federal preemption under section 210). 9. 496 U.S., 110 S. Ct. 2270 (1990). 10. Id. at-._ 110 S. Ct. at.2272, 11. Id. at., 110 S. Ct. at 2280; see infra note 229 and accompanying text. 12. See Kohn & Kohn, An Overview of Federaland State Whistleblower Protections, 4 ANTIOCH L.J. 99, 111 (1986). Employees often include other more traditional claims in their retaliatory discharge complaints. Id. These include a breach of the employment contract, an implied contract, an implied covenant of good faith and fair dealing, negligence, fraud, defa- mation of character, invasion of privacy and an intentional infliction of emotional distress. Id. Workers who file claims under those causes of action are entitled to jury trials and punitive http://scholarlycommons.law.hofstra.edu/hlelj/vol8/iss2/7 2 Rittweger: Nuclear Employers No Longer Shielded From Whistleblower State Tor 1991] Nuclear Employers No Longer Shielded more costly in the aftermath of the English decision, employers will be forced to address nuclear employee complaints by other means, including altering radiological safety procedures. The English decision further represents a landmark in the field of non-nuclear employee rights. Although the Court dealt solely with federal nuclear law, the impact of this decision is much broader. Seven other statutes contain identical or similar whistleblower pro- tections affecting virtually all of the Nation's manufacturers and businesses.13 Whistleblowers everywhere who suffer from employer discrimination, should now be able to proceed with their civil actions in state court. The purpose of this Comment is to examine the importance of nuclear safety in the commercial nuclear utility plant environment, 4 as well as the states' strong interest in promoting such care.1 5 It will review the extent to which Congress has preempted the nuclear safety field.' This Comment will then assess the judicial foundation upon which the Supreme Court's reasoning in English v. General Electric Company was based. 17 Following a discussion of the English decision itself,'8 this Comment will evaluate the impact of that hold- ing upon American employers' future conduct in addressing em- ployee complaints and subsequent litigation.' 9 Finally, this Comment will conclude that the English decision fosters prompt employer re- sponse to whistleblower complaints. II. IMPORTANCE OF NUCLEAR SAFETY A. How Nuclear Power Works Nuclear energy is created through a the process by which a de- caying uranium atom2 0 emits a neutron 21 which is absorbed by an- damage awards. Id. at 108. 13. See infra notes 230-70 and accompanying text (discussing six other environmental statutes and one mine safety regulation). 14. See infra notes 20-82 and accompanying text (addressing nuclear safety concerns). 15. See infra notes 83-94 and accompanying text (analyzing in detail the states' strong interest in promoting nuclear safety). 16. See infra notes 108-35 and accompanying text (discussing congressional preemption in the nuclear safety field). 17. See infra notes 136-206 and accompanying text (addressing various section 210 decisions). 18. See infra notes 207-29 and accompanying text (analyzing the Court's holding). 19. See infra notes 230-70 and accompanying text (postulating employers' future actions regarding various safety fields). 20. See J. LAMARSH, INTRODUCTION TO NUCLEAR ENGINEERING 8 (1983). Atoms are the building blocks of gross matter as it is seen and felt. Id. The atom consists of a small but massive nucleus surrounded by a cloud of rapidly moving electrons. Id.: see also BABCOCK & Published by Scholarly Commons at Hofstra Law, 1991 3 Hofstra Labor and Employment Law Journal, Vol. 8, Iss. 2 [1991], Art. 7 Hofstra Labor Law Journal [Vol. 8:2 other nearby uranium nucleus, 22 causing this second nucleus to fis- sion (split),23 releasing thermal energy (heat), neutrons and other forms of radiation.24 Many of these "second generation" neutrons are themselves absorbed by subsequent uranium nuclei, resulting in a "nuclear chain reaction. 25 Sustaining and controlling these mil- lions of reactions each second occurs inside a nuclear reactor. 2 A reactor consists of a core, which is filled with pellets of ura- nium packed in bundles of thin cylindrical rods.
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