Yes, an employer’s effort to force a corporate whistleblower to waive the non-waivable right to report unlawful conduct to the government is actionable retaliation.
In Connecticut Light & Power Co. v. Sec’y of U.S. Dep’t of Labor, 85 F.3d 89 (2d Cir. 1996), Delcore, an electrical foreman at a nuclear plant, brought a claim of whistleblower retaliation under the Section 211 of the Energy Reorganization Act (“ERA”), alleging that Connecticut Power terminated his employment for making disclosures to the Nuclear Regulatory Commission about violations of safety regulations at Connecticut Power sites. Connecticut Power offered a settlement containing a provision restricting Delcore’s ability to provide information to regulatory agencies. When Delcore asked that the gag clause be removed, Connecticut Power refused to modify the gag clause and withdrew its offer. Delcore filed a second complaint under the ERA alleging that Connecticut Power’s attempt to force Delcore to agree to a gag clause amounts to retaliation under the ERA.
The Second Circuit held that by offering the gag provisions, Connecticut Power had taken “an act adverse to Delcore’s statutory rights, thereby violating the anti-discrimination provisions of the ERA.” Connecticut Power argued that it had not committed an adverse act because Delcore was free to refuse the offer containing the gag provisions. The court disagreed, holding that the offer was an impermissible attempt to force Delcore to choose between severance pay and his statutory right to provide information to the NRC.
Where a federal agency tries to muzzle a whistleblower, the whistleblower may have a remedy under the Whistleblower Protection Act.
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