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Do Nuclear Workers Dare?

Whistleblowing case has ramifications for an entire industry.

Fortnightly Magazine - May 2010

488 ). According to the ruling in that case, Demski was deemed to be a contractor who was not a common law employee.

We argued, to no avail in Orange County courtrooms, that Robinson’s situation was distinguished from that of Demski. Invensys’ attorneys again used her case as precedent in briefs they filed with the DOL. Demski was president of two corporations, I&M and ANR/Scope. ANR/Scope, under contracts with I&M, performed services for a nuclear plant in Michigan operated by American Electric Power (AEP). I&M didn’t pay salary or benefits to Demski, nor did she have any I&M supervisor. Rather, other managers of ANR/Scope supervised her. She complained that AEP wrongfully terminated ANR/Scope’s contracts because she had reported safety concerns.

The material facts in Robinson’s case are the inverse of those in Demski’s case, even though both worked in the nuclear field. Demski was sole owner of both I&M and ANR/Scope, which contracted for I&M to perform services for AEP; conversely, my client was co-owner of R&R Consolidated Enterprises and had no ownership interest in TAC Worldwide, which, in turn, contracted for R&R to provide his services to Triconex. Demski’s work was supervised by ANR/Scope managers; Mr. Robinson’s work, on the other hand, was supervised by managers of the principal, Triconex, also known as Invensys.

To clarify, the Robinson v. Triconex case would resemble Demski’s if Robinson would have been the sole owner of both R&R and TAC, and if other TAC employees actually would have supervised his performance of nuclear safety and QA duties. However, that isn’t at all what happened. Rather, TAC was Invensys’ payroll service. Invensys managers were the only ones who supervised Robinson’s nuclear safety and QA work. On that basis, we have argued that Robinson was an employee within the meaning of the federal ERA’s whistleblower protection provision.

Section 5851 of the ERA prohibits retaliation against civilian nuclear industry workers for disclosing safety violations involving nuclear technology. It’s undisputed that Section 5851 applied to Invensys, which was supplying control-room instrumentation for nuclear power plants. But Invensys’ lawyers argued that Robinson was a contractor under state law and therefore should be precluded from obtaining federal statutory remedies for alleged retaliation that followed his nuclear safety reporting. We countered that whether a worker is an employee under the ERA doesn’t depend on whether a written contract called him an employee or a contractor. Instead, we argued, it depends on the working relationship between the worker and the principal. We urged that, even if Robinson was not regarded as a common law employee, he still was entitled to protection as an employee within the meaning of the federal statute.

We cited past decisions including Matter of Samodurov v. General Physics Corp. , which said, “In determining whether a contractor is an employee within the ERA’s protection, the decisions examine the degree of control of supervision by the respondent” ( see 1993 WL 832030, DOL Off.Adm.App. ). Further, as one of our witnesses said in a sworn statement, “Robinson and other contractor employees working on commercial nuclear power activities at Invensys