[Federal Register Volume 78, Number 39 (Wednesday, February 27, 2013)]
[Rules and Regulations]
[Pages 13222-13236]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04329]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1984

[Docket Number OSHA-2011-0193]
RIN 1218-AC79


Procedures for the Handling of Retaliation Complaints Under 
Section 1558 of the Affordable Care Act

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the interim final regulations governing 
the employee protection (whistleblower) provision of section 1558 of 
the Affordable Care Act, which added section 18C of the Fair Labor 
Standards Act, to provide protections to employees of health insurance 
issuers or other employers who may have been subject to retaliation for 
reporting potential violations of the law's consumer protections (e.g., 
the prohibition on denials of insurance due to pre-existing conditions) 
or affordability assistance provisions (e.g., access to health 
insurance premium tax credits). This interim rule establishes 
procedures and time frames for the handling of retaliation complaints 
under section 18C, including procedures and time frames for employee 
complaints to the Occupational Safety and Health Administration (OSHA), 
investigations by OSHA, appeals of OSHA determinations to an 
administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, 
review of ALJ decisions by the Administrative Review Board (ARB) 
(acting on behalf of the Secretary of Labor), and judicial review of 
the Secretary's final decision.

DATES: This interim final rule is effective on February 27, 2013. 
Comments and additional materials must be submitted (post-marked, sent 
or received) by April 29, 2013.

[[Page 13223]]


ADDRESSES: You may submit comments and attachments electronically at 
http://www.regulations.gov, which is the Federal eRulemaking Portal. 
Follow the instructions online for making electronic submissions.
    Fax: If your submissions, including attachments, do not exceed 10 
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
    Mail, hand delivery, express mail, messenger or courier service: 
You must submit your comments and attachments to the OSHA Docket 
Office, Docket No. OSHA-2011-0193, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210. Deliveries 
(hand, express mail, messenger and courier service) are accepted during 
the Department of Labor's and Docket Office's normal business hours, 
8:15 a.m.-4:45 p.m., ET.
    Instructions: All submissions must include the Agency name and the 
OSHA docket number for this rulemaking (Docket No. OSHA-2011-0193). 
Submissions, including any personal information provided, are placed in 
the public docket without change and may be made available online at 
http://www.regulations.gov. Therefore, OSHA cautions against submitting 
personal information such as social security numbers and birth dates.
    Docket: To read or download submissions or other material in the 
docket, go to http://www.regulations.gov or the OSHA Docket Office at 
the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g., 
copyrighted material) is not publicly available to read or download 
through the Web site. All submissions, including copyrighted material, 
are available for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT:
    For Press inquiries: Frank Meilinger, Director, OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone: (202) 693-1999. This is 
not a toll-free number. Email: meilinger.francis2@dol.gov.
    For technical inquiries: Katelyn Wendell, Program Analyst, 
Directorate of Whistleblower Protection Programs, OSHA, U.S. Department 
of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC 
20210; telephone (202) 693-2199. This is not a toll-free number. Email: 
Wendell.katelyn.j@dol.gov. This Federal Register publication is 
available in alternative formats. The alternative formats available 
are: Large print, electronic file on computer disk (Word Perfect, 
ASCII, Mates with Duxbury Braille System), and audiotape.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Patient Protection and Affordable Care Act, Public Law 111-148, 
124 Stat. 119, was signed into law on March 23, 2010 and was amended by 
the Health Care and Education Reconciliation Act of 2010, Public Law 
111-152, 124 Stat. 1029, that was signed into law on March 30, 2010. 
The terms ``Affordable Care Act'' or ``Act'' are used in this 
rulemaking to refer to the final, amended version of the law. The 
Affordable Care Act contains various provisions designed to make health 
care more affordable and accountable.
    Among the policies to achieve its goals, the Affordable Care Act's 
section 1558 amended the Fair Labor Standards Act (FLSA) to add section 
18C, 29 U.S.C. 218C (section 18C), which provides protection to 
employees against retaliation by an employer for engaging in certain 
protected activities.
    Under section 18C, an employer may not retaliate against an 
employee for receiving a credit under section 36B of the Internal 
Revenue Code of 1986 or a cost-sharing reduction (referred to as a 
``subsidy'' in section 18C) under section 1402 of Affordable Care Act. 
These provisions allow employees to receive tax credits or cost-sharing 
reductions while enrolled in a qualified health plan through an 
exchange, if their employer does not offer a coverage option that is 
affordable and provides a basic level of value (i.e., ``minimum 
value''). Certain large employers who fail to offer affordable plans 
that meet this minimum value may be assessed a tax penalty if any of 
their full-time employees receive a premium tax credit through the 
Exchange. Thus, the relationship between the employee's receipt of a 
credit and the potential tax penalty imposed on an employer could 
create an incentive for an employer to retaliate against an employee. 
Section 18C protects employees against such retaliation.
    Section 18C also protects employees against retaliation because 
they provided or are about to provide to their employer, the Federal 
Government, or the attorney general of a State information relating to 
any violation of, or any act or omission the employee reasonably 
believes to be a violation of, any provision of or amendment made by 
title I of the Affordable Care Act; testified or are about to testify 
in a proceeding concerning such violation; assisted or participated, or 
are about to assist or participate, in such a proceeding; or objected 
to, or refused to participate in, any activity, policy, practice, or 
assigned task that the employee reasonably believed to be in violation 
of any provision of title I of the Act (or amendment), or any order, 
rule, regulation, standard, or ban under title I of the Act (or 
amendment). Title I includes a range of insurance company 
accountability policies such as: The prohibition of lifetime dollar 
limits on coverage, the requirement for most plans to cover recommended 
preventive services with no cost sharing, and, starting in 2014, 
guaranteed availability (also known as guaranteed issue) protections so 
that individuals and employers will be able to obtain coverage that 
currently can be denied due to a pre-existing condition, and the 
prohibition on the use of factors such as health status, medical 
history, gender, and industry of employment to set premium rates.
    Section 18C became effective on the date the health care law was 
enacted, March 23, 2010. On January 1, 2014, the scope of coverage of 
section 18C will be expanded by section 2706(b) of the Public Health 
Service Act (PHSA), 42 U.S.C. 300gg et seq., as amended by section 1201 
of the Affordable Care Act. Section 2706 of the PHSA is titled ``Non-
Discrimination in Health Care'' and provides, in relevant part: ``(b) 
INDIVIDUALS.--The provisions of section 1558 of the Patient Protection 
and Affordable Care Act (relating to non-discrimination) shall apply 
with respect to a group health plan or health insurance issuer offering 
group or individual health insurance coverage.'' Thus, the protections 
provided by section 18C will extend in 2014 to cover retaliation with 
respect to an employee's compensation, terms, conditions or other 
privileges of employment by health insurance issuers offering group or 
individual health insurance coverage regardless of whether those 
issuers are the employer of the person retaliated against. Since the 
enactment of the Affordable Care Act, a health insurance issuer is 
prohibited from retaliating against its own employees who engage in 
activity protected by section 18C. Beginning in 2014, those issuers 
will also be prohibited from retaliating against persons who are not 
their employees with respect to those persons' compensation, terms, 
conditions or other privileges of employment, including their employer-
sponsored health insurance. An employee will be protected from 
retaliation (e.g., having that issuer limit or end health insurance 
coverage), not only by her employer, but also by the insurance issuer 
that provides

[[Page 13224]]

employer-sponsored health insurance coverage to the employee.
    These interim rules establish procedures for the handling of 
whistleblower complaints under section 18C of the FLSA; these 
procedures are very similar to those used for whistleblower complaints 
in other industries.

II. Summary of Statutory Procedures

    Section 18C(b)(1) adopts the procedures, notifications, burdens of 
proof, remedies, and statutes of limitation in the Consumer Product 
Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Accordingly, 
a covered employee may file a complaint with the Secretary of Labor 
(Secretary) within 180 days of the alleged retaliation. Upon receipt of 
the complaint, the Secretary must provide written notice to the person 
or persons named in the complaint alleged to have violated the Act 
(respondent) of the filing of the complaint, the allegations contained 
in the complaint, the substance of the evidence supporting the 
complaint, and the rights afforded the respondent throughout the 
investigation. The Secretary must then, within 60 days of receipt of 
the complaint, afford the complainant and respondent an opportunity to 
submit a response and meet with the investigator to present statements 
from witnesses, and conduct an investigation.
    The Secretary may conduct an investigation only if the complainant 
has made a prima facie showing that the protected activity was a 
contributing factor in the adverse action alleged in the complaint and 
the respondent has not demonstrated, through clear and convincing 
evidence, that the respondent would have taken the same adverse action 
in the absence of that activity.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
there is reasonable cause to believe that retaliation has occurred, the 
Secretary must notify the respondent of those findings, along with a 
preliminary order that requires the respondent to, where appropriate: 
Take affirmative action to abate the violation; reinstate the 
complainant to his or her former position together with the 
compensation of that position (including back pay) and restore the 
terms, conditions, and privileges associated with his or her 
employment; and provide compensatory damages to the complainant, as 
well as all costs and expenses (including attorney fees and expert 
witness fees) reasonably incurred by the complainant for, or in 
connection with, the bringing of the complaint upon which the order was 
issued.
    The complainant and the respondent then have 30 days after the date 
of the Secretary's notification in which to file objections to the 
findings and/or preliminary order and request a hearing before an ALJ. 
The filing of objections under section 18C of the FLSA will stay any 
remedy in the preliminary order except for preliminary reinstatement. 
If a hearing before an ALJ is not requested within 30 days, the 
preliminary order becomes final and is not subject to judicial review.
    If a hearing is held, the statute requires the hearing to be 
conducted ``expeditiously.'' The Secretary then has 120 days after the 
conclusion of any hearing in which to issue a final order, which may 
provide appropriate relief or deny the complaint. Until the Secretary's 
final order is issued, the Secretary, the complainant, and the 
respondent may enter into a settlement agreement that terminates the 
proceeding. Where the Secretary has determined that a violation has 
occurred, the Secretary, where appropriate, will assess against the 
respondent a sum equal to the total amount of all costs and expenses, 
including attorney's and expert witness fees, reasonably incurred by 
the complainant for, or in connection with, the bringing of the 
complaint upon which the Secretary issued the order. The Secretary also 
may award a prevailing respondent a reasonable attorney's fee, not 
exceeding $1,000, if the Secretary finds that the complaint is 
frivolous or has been brought in bad faith. Within 60 days of the 
issuance of the final order, any person adversely affected or aggrieved 
by the Secretary's final order may file an appeal with the United 
States Court of Appeals for the circuit in which the violation occurred 
or the circuit where the complainant resided on the date of the 
violation.
    The statute permits the employee to seek de novo review of the 
complaint by a United States district court in the event that the 
Secretary has not issued a final decision within 210 days after the 
filing of the complaint, or within 90 days after receiving a written 
determination. The court will have jurisdiction over the action without 
regard to the amount in controversy, and the case will be tried before 
a jury at the request of either party.
    Finally, section 18C(b)(2) of the FLSA provides that nothing in 
section 18C shall be deemed to diminish the rights, privileges, or 
remedies of any employee under any Federal or State law or under any 
collective bargaining agreement, and the rights and remedies in section 
18C may not be waived by any agreement, policy, form, or condition of 
employment.

III. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of section 18C of the FLSA and 15 U.S.C. 2087(b) of 
CPSIA. Responsibility for receiving and investigating complaints under 
section 18C has been delegated to the Assistant Secretary for 
Occupational Safety and Health. Secretary's Order 1-2012 (Jan. 18, 
2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the 
Assistant Secretary are conducted by the Office of Administrative Law 
Judges, and appeals from decisions by ALJs are decided by the ARB. 
Secretary's Order 1-2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010).

Subpart A--Complaints, Investigations, Findings and Preliminary Orders

Section 1984.100 Purpose and Scope

    This section describes the purpose of the regulations implementing 
section 18C of the FLSA and provides an overview of the procedures 
covered by these regulations.

Section 1984.101 Definitions

    This section includes general definitions for the Affordable Care 
Act whistleblower provision codified at section 18C of the FLSA. The 
definitions of the terms ``employer,'' ``employee,'' and ``person'' 
from section 3 of the FLSA, 29 U.S.C. 203, apply to these rules and are 
included here.
    The FLSA defines ``employer'' as including ``any person acting 
directly or indirectly in the interest of an employer in relation to an 
employee and includes a public agency, but does not include any labor 
organization (other than when acting as an employer) or anyone acting 
in the capacity of officer or agent of such labor organization.'' 29 
U.S.C. 203(d). The FLSA defines ``person'' to mean ``an individual, 
partnership, association, corporation, business trust, legal 
representative, or any organized group of persons.'' 29 U.S.C. 203(a).
    The FLSA defines ``employee'' to mean ``any individual employed by 
an employer.'' 29 U.S.C. 203(e)(1). In the case of an individual 
employed by a public agency, the term employee means any individual 
employed by the Government of the United States: As a civilian in the 
military departments (as defined in section 102 of the U.S. Code at 
title 5), in any executive agency (as

[[Page 13225]]

defined in section 105 of such title), in any unit of the judicial 
branch of the Government which has positions in the competitive 
service, in a nonappropriated fund instrumentality under the 
jurisdiction of the Armed Forces, in the Library of Congress, or in the 
Government Printing Office. 29 U.S.C. 203(e)(2)(A). An employee 
generally also includes any individual employed by the United States 
Postal Service or the Postal Regulatory Commission, 29 U.S.C. 
203(e)(2)(b); and any individual employed by a State, political 
subdivision of a State, or an interstate governmental agency. The 
definition of ``employee'' under the FLSA does not include an 
individual who is not subject to the civil service laws of the State, 
political subdivision, or agency which employs him; and who holds a 
public elective office of that State, political subdivision, or agency, 
is selected by the holder of such an office to be a member of his 
personal staff, is appointed by such an officeholder to serve on a 
policymaking level, is an immediate adviser to such an officeholder 
with respect to the constitutional or legal powers of his office, or is 
an employee in the legislative branch or legislative body of that 
State, political subdivision, or agency and is not employed by the 
legislative library of such State, political subdivision, or agency. 29 
U.S.C. 203(e)(2)(c).
    Consistent with the Secretary's interpretation of the term 
``employee'' in the other whistleblower statutes administered by OSHA 
\1\ and with the Secretary's interpretation of the term ``employee'' 
under the anti-retaliation provision found at section 15(a)(3) of the 
FLSA, 29 U.S.C. 215(a)(3),\2\ the definition of the term ``employee'' 
in section 1984.101 also includes former employees and applicants for 
employment. This interpretation is supported by section 18C's plain 
language which prohibits retaliation against ``any employee'' and 
provides that ``[a]n employee who believes that he or she has been 
discharged or otherwise discriminated against by any employer in 
violation of this section'' may file a complaint with the Secretary of 
Labor, (Emphasis added). Section 18C's broad protection of ``any 
employee'' from discrimination and provision of a cause of action 
against ``any employer'' for retaliation makes clear that the parties 
need not have a current employment relationship. Section 18C's broad 
protections, like the protections in section 15(a)(3), contrast with 
the narrower protections of sections 6 and 7 of the FLSA. Sections 6 
and 7 provide respectively that an employer must pay at least the 
minimum wage to ``each of his employees'' and must pay overtime to 
``any of his employees,'' and thus require a current employment 
relationship. See 29 U.S.C. 206(a) and (b), 29 U.S.C. 207(a)(1) and 
(2). Congress chose to use the broad term ``any'' to modify employee 
and employer in Sections 18C(a) and (b), rather than providing more 
restrictively that, for example, ``no employer shall discharge or in 
any manner discriminate against any of his employees'' or ``an employee 
who believes that he or she has been discharged or otherwise 
discriminated against by his employer'' may file a complaint with the 
Secretary of Labor. The Supreme Court has made clear that ``any'' has 
an expansive meaning that does not limit the word it modifies. See, 
e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 
1325, 1332 (2011) (noting that the use of ``any'' in the phrase ``filed 
any complaint'' in section 15(a)(3) of the FLSA ``suggests a broad 
interpretation that would include an oral complaint''); U.S. v. 
Gonzales, 520 U.S. 1, 5 (1997) (``any'' has an expansive meaning, that 
is, ``one or some indiscriminately of whatever kind'') (internal 
citations omitted). In addition, the explicit inclusion of 
reinstatement and preliminary reinstatement (both of which can only be 
awarded to former employees) among the remedies available for 
whistleblowers under Section 18C confirms that the complainant and the 
respondent need not have a current employment relationship in order for 
the complainant to have a claim under section 18C. See Dellinger v. 
Science Applications Int'l Corp., 649 F.3d at 230 n.2 (section 15(a)(3) 
of the FLSA protects former employees); cf. Robinson v. Shell Oil Co., 
519 U.S. 337 (1997) (term ``employees'' in anti-retaliation provision 
of Title VII of the Civil Rights Act of 1964 includes former 
employees).
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    \1\ See, e.g., 29 CFR 1980.101(g) (defining employee to include 
former employees and applicants under the whistleblower provisions 
in the Sarbanes-Oxley Act); 29 CFR 1978.101 (Surface Transportation 
Assistance Act); 29 CFR 1981.101 (Pipeline Safety Improvement Act); 
29 CFR 1982.101(d) (Federal Railroad Safety Act and the National 
Transit Systems Security Act); 29 CFR 1983.101(h) (Consumer Product 
Safety Improvement Act).
    \2\ See Brief for the Secretary of Labor and the Equal 
Employment Opportunity Commission as Amicus Curiae, Dellinger v. 
Science Applications Int'l Corp., No. 10-1499 (4th Cir. Oct. 15, 
2010)(explaining that the phrase ``any employee'' in section 
15(a)(3) of the FLSA does not limit an individual's retaliation 
claims to her current employer, but rather extends protection to 
prospective employees from retaliation for engaging in protected 
activity), and Brief of the Secretary of Labor and Equal Employment 
Opportunity Commission as Amicus Curiae, Dellinger v. Science 
Applications Int'l Corp., No. 10-1499 (4th Cir. Sept. 9, 2011) 
(same); but see Dellinger v. Science Applications Int'l Corp., 649 
F.3d 226, 229-31 & n.2 (4th Cir. 2011) (accepting that former 
employees are protected from retaliation under section 15(a)(3) of 
the FLSA but holding that applicants for employment are not).
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Section 1984.102 Obligations and Prohibited Acts

    This section describes the activities that are protected under 
section 18C of the FLSA, and the conduct that is prohibited in response 
to any protected activities. Section 18C(a)(1) protects any employee 
from retaliation ``because the employee received a credit under section 
36B of the Internal Revenue Code of 1986 or a subsidy under section 
1402 of this Act.'' The reference to ``a subsidy under section 1402 
this Act'' in section 18C(a)(1) refers to receipt of a cost-sharing 
reduction under section 1402 of the Affordable Care Act. 42 U.S.C. 
18071.
    Under section 18C(a)(2), an employer may not retaliate against an 
employee because the employee ``provided, caused to be provided, or is 
about to provide or cause to be provided to the employer, the Federal 
Government, or the attorney general of a State information relating to 
any violation of, or any act or omission the employee reasonably 
believes to be a violation of, any provision of this title (or an 
amendment made by this title).'' Section 18C also protects employees 
who testify, assist or participate in proceedings concerning such 
violations. Sections 18C(a)(3) and (4), 29 U.S.C. 218C(a)(3) and (4). 
Finally, section 18C(a)(5) prohibits retaliation because an employee 
``objected to, or refused to participate in, any activity, policy, 
practice, or assigned task that the employee (or other such person) 
reasonably believed to be in violation of any provision of this title 
(or amendment), or any order, rule, regulation, standard, or ban under 
this title (or amendment).'' References to ``this title'' in section 
18C(a)(2) and (5) refer to Title I of the Affordable Care Act. This 
includes health insurance reforms such as providing guaranteed 
availability (also known as guaranteed issue) protections so that 
individuals and employers will be able to obtain coverage when it 
currently can be denied, continuing current guaranteed renewability 
protections, prohibiting the use of factors such as health status, 
medical history, gender, and industry of employment to set premium 
rates, limiting age rating, and prohibiting issuers from dividing up 
their insurance pools within markets.

[[Page 13226]]

    In order to have a ``reasonable belief'' under sections 18C(a)(2) 
and (5), a complainant must have both a subjective, good faith belief 
and an objectively reasonable belief that the complained-of conduct 
violates one of the listed categories of law. See Sylvester v. Parexel 
Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 
2011) (discussing the reasonable belief standard under analogous 
language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C. 
1514A). The requirement that the complainant have a subjective, good 
faith belief is satisfied so long as the complainant actually believed 
that the conduct complained of violated the relevant law. See id. The 
``reasonableness'' of a complainant's belief is typically determined 
``based on the knowledge available to a reasonable person in the same 
factual circumstances with the same training and experience as the 
aggrieved employee.'' Id. at *12 (internal quotation marks and citation 
omitted). However, the complainant need not show that the conduct 
complained of constituted an actual violation of law. Pursuant to this 
standard, an employee's whistleblower activity is protected where it is 
based on a reasonable, but mistaken, belief that a violation of the 
relevant law has occurred. Id. at *13.

Section 1984.103 Filing of Retaliation Complaint

    This section explains the requirements for filing a retaliation 
complaint under section 18C. To be timely, a complaint must be filed 
within 180 days of when the alleged violation occurs. Under Delaware 
State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to 
be when the retaliatory decision has been both made and communicated to 
the complainant. In other words, the limitations period commences once 
the employee is aware or reasonably should be aware of the employer's 
decision. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 
249 F.3d 557, 561-62 (6th Cir. 2001). However, the time for filing a 
complaint may be tolled for reasons warranted by applicable case law. 
Complaints filed under section 18C of the FLSA need not be in any 
particular form. They may be either oral or in writing. If the 
complainant is unable to file the complaint in English, OSHA will 
accept the complaint in any language. With the consent of the employee, 
complaints may be filed by any person on the employee's behalf.
    OSHA notes that a complaint of retaliation filed with OSHA under 
the Affordable Care Act is not a formal document and need not conform 
to the pleading standards for complaints filed in federal district 
court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. 
Parexel Int'l, Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 
26, 2011) (holding whistleblower complaints filed with OSHA under 
analogous provisions in the Sarbanes-Oxley Act need not conform to 
federal court pleading standards). Rather, the complaint filed with 
OSHA under this section simply alerts the Agency to the existence of 
the alleged retaliation and the complainant's desire that the Agency 
investigate the complaint. Upon the filing of a complaint with OSHA, 
the Assistant Secretary is to determine whether ``the complaint, 
supplemented as appropriate by interviews of the complainant'' alleges 
``the existence of facts and evidence to make a prima facie showing.'' 
29 CFR 1984.104(e). As explained in section 1984.104(e), if the 
complaint, supplemented as appropriate, contains a prima facie 
allegation, and the respondent does not show clear and convincing 
evidence that it would have taken the same action in the absence of the 
alleged protected activity, OSHA conducts an investigation to determine 
whether there is reasonable cause to believe that retaliation has 
occurred. See 15 U.S.C. 2087(b)(2), 29 CFR 1984.104(e).

Section 1984.104 Investigation

    This section describes the procedures that apply to the 
investigation of complaints under section 18C. Paragraph (a) of this 
section outlines the procedures for notifying the parties and 
appropriate Federal agencies of the complaint and notifying the 
respondent of its rights under these regulations. Paragraph (b) 
describes the procedures for the respondent to submit its response to 
the complaint. Paragraph (c) specifies that throughout the 
investigation the Agency will provide to the complainant (or the 
complainant's legal counsel if the complainant is represented by 
counsel) a copy of respondent's submissions to the Agency that are 
responsive to the complainant's whistleblower complaint and the 
complainant will have an opportunity to respond to those submissions. 
Before providing such materials to the complainant, the Agency will 
redact them in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, 
and other applicable confidentiality laws. Paragraph (d) of this 
section discusses confidentiality of information provided during 
investigations. Paragraph (e) of this section sets forth the applicable 
burdens of proof. Paragraph (f) describes the procedures the Assistant 
Secretary will follow prior to the issuance of findings and a 
preliminary order when the Assistant Secretary has reasonable cause to 
believe that a violation has occurred.
    Section 18C of the FLSA incorporates the burdens of proof set forth 
in CPSIA. 15 U.S.C. 2087(b). That statute requires that a complainant 
make an initial prima facie showing that protected activity was ``a 
contributing factor'' in the adverse action alleged in the complaint, 
i.e., that the protected activity, alone or in combination with other 
factors, affected in some way the outcome of the employer's decision. 
The complainant will be considered to have met the required burden if 
the complaint on its face, supplemented as appropriate through 
interviews of the complainant, alleges the existence of facts and 
either direct or circumstantial evidence to meet the required showing. 
The complainant's burden may be satisfied, for example, if he or she 
shows that the adverse action took place shortly after protected 
activity, giving rise to the inference that it was a contributing 
factor in the adverse action.
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the Energy Reorganization 
Act of 1974 (ERA), which is the same framework now applicable to 
section 18C of the FLSA, serves a ``gatekeeping function'' that 
``stem[s] frivolous complaints''). Even in cases where the complainant 
successfully makes a prima facie showing, the investigation must be 
discontinued if the respondent demonstrates, by clear and convincing 
evidence, that it would have taken the same adverse action in the 
absence of the protected activity. Thus, OSHA must dismiss a complaint 
under section 18C of the FLSA and not investigate (or cease 
investigating) if either: (1) The complainant fails to meet the prima 
facie showing that protected activity was a contributing factor in the 
adverse action; or (2) the respondent rebuts that showing by clear and 
convincing evidence that it would have taken the same adverse action 
absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statutory burdens of proof require an employee to prove that 
the alleged protected activity was a ``contributing factor'' in the 
alleged adverse action. If the employee proves that the alleged

[[Page 13227]]

protected activity was a contributing factor in the adverse action, the 
respondent, to escape liability, must prove by ``clear and convincing 
evidence'' that it would have taken the same action in the absence of 
the protected activity. A contributing factor is ``any factor which, 
alone or in connection with other factors, tends to affect in any way 
the outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137, 
1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation 
omitted) (discussing the Whistleblower Protection Act, 5 U.S.C. 
1221(e)(1)). In proving that protected activity was a contributing 
factor in the adverse action, `` `a complainant need not necessarily 
prove that the respondent's articulated reason was a pretext in order 
to prevail,' '' because a complainant alternatively can prevail by 
showing that the respondent's `` `reason, while true, is only one of 
the reasons for its conduct,' '' and that another reason was the 
complainant's protected activity. See Klopfenstein v. PCC Flow Techs. 
Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 
2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th 
Cir. 2004)) (discussing contributing factor test under the Sarbanes-
Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. 
Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th 
Cir. 2010).
    The statutory burdens of proof do not address the evidentiary 
standard that applies to a complainant's proof that protected activity 
was a contributing factor in an adverse action. Rather, they simply 
provide that the Secretary may find a violation only ``if the 
complainant demonstrates'' that protected activity was a contributing 
factor in the alleged adverse action. See 15 U.S.C. 2087(b)(2)(B)(iii). 
It is the Secretary's position that the complainant must prove by a 
``preponderance of the evidence'' that his or her protected activity 
contributed to the adverse action; otherwise the burden never shifts to 
the respondent to establish its defense by ``clear and convincing 
evidence.'' See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475 
n.1 (5th Cir. 2008) (``The term `demonstrates' [under identical 
language in another whistleblower provision] means to prove by a 
preponderance of the evidence.''). Once the complainant establishes 
that the protected activity was a contributing factor in the adverse 
action, the respondent can escape liability only by proving by clear 
and convincing evidence that it would have taken the same action even 
in the absence of the prohibited rationale. The ``clear and convincing 
evidence'' standard is a higher burden of proof than a ``preponderance 
of the evidence'' standard.
    Section 18C also incorporates the authorities in the FLSA sections 
9 and 11, 29 U.S.C. 209 and 211, to issue subpoenas and conduct 
investigations. Such authorities under section 18C are delegated and 
assigned to the Assistant Secretary for Occupational Safety and Health. 
See Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 
2012).

Section 1984.105 Issuance of Findings and Preliminary Orders

    This section provides that, on the basis of information obtained in 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of a complaint, written findings regarding whether or not 
there is reasonable cause to believe that the complaint has merit. If 
the findings are that there is reasonable cause to believe that the 
complaint has merit, the Assistant Secretary will order appropriate 
relief, including preliminary reinstatement, affirmative action to 
abate the violation, back pay with interest, and compensatory damages. 
The findings and, where appropriate, preliminary order, advise the 
parties of their right to file objections to the findings of the 
Assistant Secretary and to request a hearing. The findings and, where 
appropriate, preliminary order, also advise the respondent of the right 
to request an award of attorney's fees not exceeding $1,000 from the 
ALJ, regardless of whether the respondent has filed objections, if the 
respondent alleges that the complaint was frivolous or brought in bad 
faith. If no objections are filed within 30 days of receipt of the 
findings, the findings and any preliminary order of the Assistant 
Secretary become the final decision and order of the Secretary. If 
objections are timely filed, any order of preliminary reinstatement 
will take effect, but the remaining provisions of the order will not 
take effect until administrative proceedings are completed.
    In ordering interest on back pay under section 18C, the Secretary 
has determined that interest due will be computed by compounding daily 
the Internal Revenue Service interest rate for the underpayment of 
taxes, which under 26 U.S.C. 6621 is generally the Federal short-term 
rate plus three percentage points. The Secretary believes that daily 
compounding of interest achieves the make-whole purpose of a back pay 
award. Daily compounding of interest has become the norm in private 
lending and recently was found to be the most appropriate method of 
calculating interest on back pay by the National Labor Relations Board. 
See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, 
Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 
8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010). Additionally, 
interest on tax underpayments under the Internal Revenue Code, 26 
U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).
    In appropriate circumstances, in lieu of preliminary reinstatement, 
OSHA may order that the complainant receive the same pay and benefits 
that he or she received prior to his termination, but not actually 
return to work. Such ``economic reinstatement'' is akin to an order for 
front pay and frequently is employed in cases arising under section 
105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 
815(c), which protects miners from retaliation. See, e.g., Sec'y of 
Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 
1806020, at *1 (ALJ June 26, 2001). Front pay has been recognized as a 
possible remedy in cases under the whistleblower statutes enforced by 
OSHA in circumstances where reinstatement would not be appropriate. 
See, e.g., Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-039, 2003 WL 
21499864, at *10 (ARB June 30, 2003) (under environmental whistleblower 
statutes, ``front pay may be an appropriate substitute when the parties 
prove the impossibility of a productive and amicable working 
relationship, or the company no longer has a position for which the 
complainant is qualified''); Hobby v. Georgia Power Co., ARB No. 98-
166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), aff'd sub nom. Hobby v. 
U.S. Dep't of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002) 
(unpublished) (noting circumstances where front pay may be available in 
lieu of reinstatement but ordering reinstatement); Doyle v. Hydro 
Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 1996 WL 518592, at *6 
(ARB Sept. 6, 1996) (under ERA, front pay appropriate where employer 
had eliminated the employee's position); Michaud v. BSP Transport, 
Inc., ARB Nos. 97-113, 1997 WL 626849, at *4 (ARB Oct. 9, 1997) (under 
the Surface Transportation Assistance Act, 49 U.S.C. 31105, front pay 
appropriate where employee was unable to work due to major depression 
resulting from the retaliation); Brown v. Lockheed Martin Corp., ALJ 
No. 2008-SOX-49,

[[Page 13228]]

2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while 
reinstatement is the ``presumptive remedy'' under Sarbanes-Oxley, front 
pay may be awarded as a substitute when reinstatement is 
inappropriate). Congress intended that employees be preliminarily 
reinstated to their positions if OSHA finds reasonable cause to believe 
that they were discharged in violation of section 18C of the FLSA. When 
a violation is found, the norm is for OSHA to order immediate 
preliminary reinstatement. Neither an employer nor an employee has a 
statutory right to choose economic reinstatement. Rather, economic 
reinstatement is designed to accommodate situations in which evidence 
establishes to OSHA's satisfaction that reinstatement is inadvisable 
for some reason, notwithstanding the employer's retaliatory discharge 
of the employee. In such situations, actual reinstatement might be 
delayed until after the administrative adjudication is completed as 
long as the employee continues to receive his or her pay and benefits 
and is not otherwise disadvantaged by a delay in reinstatement. There 
is no statutory basis for allowing the employer to recover the costs of 
economically reinstating an employee should the employer ultimately 
prevail in the whistleblower adjudication.

Subpart B--Litigation

Section 1984.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing

    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, within 30 days of 
receipt of the findings. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal is considered the 
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The 
filing of objections also is considered a request for a hearing before 
an ALJ. Although the parties are directed to serve a copy of their 
objections on the other parties of record, as well as the OSHA official 
who issued the findings and order, the Assistant Secretary, and the 
U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards, the failure to serve copies of the objections on the other 
parties of record does not affect the ALJ's jurisdiction to hear and 
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear 
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 
2005).
    The timely filing of objections stays all provisions of the 
preliminary order, except for the portion requiring reinstatement. A 
respondent may file a motion to stay OSHA's preliminary order of 
reinstatement with the Office of Administrative Law Judges. However, 
such a motion will be granted only based on exceptional circumstances. 
The Secretary believes that a stay of the Assistant Secretary's 
preliminary order of reinstatement under section 18C of the FLSA would 
be appropriate only where the respondent can establish the necessary 
criteria for equitable injunctive relief, i.e., irreparable injury, 
likelihood of success on the merits, a balancing of possible harms to 
the parties, and the public interest favors a stay. If no timely 
objection to OSHA's findings and/or preliminary order is filed, then 
OSHA's findings and/or preliminary order become the final decision of 
the Secretary not subject to judicial review.

Section 1984.107 Hearings

    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges 
at 29 CFR part 18 subpart A. It specifically provides for hearings to 
be consolidated if both the complainant and respondent object to the 
findings and/or order of the Assistant Secretary. This section provides 
that the hearing is to commence expeditiously, except upon a showing of 
good cause or unless otherwise agreed to by the parties. Hearings will 
be conducted de novo on the record. As noted in this section, formal 
rules of evidence will not apply, but rules or principles designed to 
assure production of the most probative evidence will be applied. The 
ALJ may exclude evidence that is immaterial, irrelevant, or unduly 
repetitious.

Section 1984.108 Role of Federal Agencies

    The Assistant Secretary, at his or her discretion, may participate 
as a party or amicus curiae at any time in the administrative 
proceedings under section 18C of the FLSA. For example, the Assistant 
Secretary may exercise his or her discretion to prosecute the case in 
the administrative proceeding before an ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although OSHA anticipates that ordinarily the Assistant Secretary will 
not participate, the Assistant Secretary may choose to do so in 
appropriate cases, such as cases involving important or novel legal 
issues, large numbers of employees, alleged violations that appear 
egregious, or where the interests of justice might require 
participation by the Assistant Secretary. The Internal Revenue Service 
of the United States Department of the Treasury, the United States 
Department of Health and Human Services, and the Employee Benefits 
Security Administration of the United States Department of Labor, if 
interested in a proceeding, also may participate as amicus curiae at 
any time in the proceedings.

Section 1984.109 Decision and Orders of the Administrative Law Judge

    This section sets forth the requirements for the content of the 
decision and order of the ALJ, and includes the standard for finding a 
violation under section 18C. Paragraph (c) of this section further 
provides that the Assistant Secretary's determination to dismiss the 
complaint without an investigation or without a complete investigation 
under section 1984.104 is not subject to review. Thus, section 
1984.109(c) clarifies that the Assistant Secretary's determinations on 
whether to proceed with an investigation under section 18C and whether 
to make particular investigative findings are discretionary decisions 
not subject to review by the ALJ. The ALJ hears cases de novo and, 
therefore, as a general matter, may not remand cases to the Assistant 
Secretary to conduct an investigation or make further factual findings. 
A full discussion of the burdens of proof used by the Department of 
Labor to resolve whistleblower cases under this part is described above 
in the discussion of section 1984.104. Paragraph (d) notes the remedies 
that the ALJ may order under section 18C and, as discussed under 
section 1984.105 above, provides that interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily. Paragraph (e) 
requires that the ALJ's decision be served on all parties to the 
proceeding, the Assistant Secretary, and the U.S. Department of Labor's 
Associate Solicitor for Fair Labor Standards. Paragraph (e) also 
provides that any ALJ decision requiring reinstatement or lifting an 
order of reinstatement by the Assistant Secretary will be effective 
immediately upon receipt of the decision by the respondent. All other

[[Page 13229]]

portions of the ALJ's order will be effective 14 days after the date of 
the decision unless a timely petition for review has been filed with 
the ARB. If no timely petition for review is filed with the ARB, the 
decision of the ALJ becomes the final decision of the Secretary and is 
not subject to judicial review.

Section 1984.110 Decision and Orders of the Administrative Review Board

    Upon the issuance of the ALJ's decision, the parties have 14 days 
within which to petition the ARB for review of that decision. The date 
of the postmark, facsimile transmittal, or electronic communication 
transmittal is considered the date of filing of the petition; if the 
petition is filed in person, by hand delivery or other means, the 
petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the 
ARB is not a matter of right but is accepted at the discretion of the 
ARB. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. If a 
timely petition for review is filed with the ARB, any relief ordered by 
the ALJ, except for that portion ordering reinstatement, is inoperative 
while the matter is pending before the ARB. When the ARB accepts a 
petition for review, the ALJ's factual determinations will be reviewed 
under the substantial evidence standard.
    This section also provides that, based on exceptional 
circumstances, the ARB may grant a motion to stay an ALJ's preliminary 
order of reinstatement under section 18C, which otherwise would be 
effective, while review is conducted by the ARB. The Secretary believes 
that a stay of an ALJ's preliminary order of reinstatement under 
section 18C would be appropriate only where the respondent can 
establish the necessary criteria for equitable injunctive relief, i.e., 
irreparable injury, likelihood of success on the merits, a balancing of 
possible harms to the parties, and the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it 
will issue a final order providing relief to the complainant. The final 
order will require, where appropriate: Affirmative action to abate the 
violation; reinstatement of the complainant to his or her former 
position, together with the compensation (including back pay and 
interest), terms, conditions, and privileges of the complainant's 
employment; and payment of compensatory damages, including, at the 
request of the complainant, the aggregate amount of all costs and 
expenses (including attorney's and expert witness fees) reasonably 
incurred. Interest on back pay will be calculated using the interest 
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will 
be compounded daily. If the ARB determines that the respondent has not 
violated the law, an order will be issued denying the complaint. If, 
upon the request of the respondent, the ARB determines that a complaint 
was frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney's fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions.

Section 1984.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement

    This section provides the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It permits complainants to withdraw their 
complaints orally and provides that, in such circumstances, OSHA will 
confirm a complainant's desire to withdraw in writing. It also provides 
for approval of settlements at the investigative and adjudicative 
stages of the case.

Section 1984.112 Judicial Review

    This section describes the statutory provisions of CPSIA, 
incorporated into section 18C of the FLSA, for judicial review of 
decisions of the Secretary and requires, in cases where judicial review 
is sought, the ARB to submit the record of proceedings to the 
appropriate court pursuant to the rules of such court.

Section 1984.113 Judicial Enforcement

    This section describes the Secretary's authority under section 18C 
to obtain judicial enforcement of orders and the terms of settlement 
agreements. Section 18C incorporates the procedures, notifications, 
burdens of proof, remedies, and statutes of limitations set forth in 
CPSIA, 15 U.S.C. 2087(b), which expressly authorizes district courts to 
enforce orders, including preliminary orders of reinstatement, issued 
by the Secretary. See 15 U.S.C. 2087(b)(6) (``Whenever any person has 
failed to comply with an order issued under paragraph (3), the 
Secretary may file a civil action in the United States district court 
for the district in which the violation was found to occur, or in the 
United States district court for the District of Columbia, to enforce 
such order.''). Specifically, reinstatement orders issued at the close 
of OSHA's investigation are immediately enforceable in district court 
pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 18C of the FLSA 
provides, through CPSIA, that the Secretary shall order the person who 
has committed a violation to reinstate the complainant to his or her 
former position. See 15 U.S.C. 2087(b)(3)(B)(ii). Section 18C of the 
FLSA also provides, through CPSIA, that the Secretary shall accompany 
any reasonable cause finding that a violation occurred with a 
preliminary order containing the relief prescribed by subsection 
(b)(3)(B) of CPSIA, which includes reinstatement where appropriate, and 
that any preliminary order of reinstatement shall not be stayed upon 
the filing of objections. See 15 U.S.C. 2087(b)(2)(A) (``The filing of 
such objections shall not operate to stay any reinstatement remedy 
contained in the preliminary order.''). Thus, under section 18C of the 
FLSA enforceable orders include preliminary orders that contain the 
relief of reinstatement prescribed by 15 U.S.C. 2087(b)(3)(B). This 
statutory interpretation is consistent with the Secretary's 
interpretation of similar language in the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century and Sarbanes-Oxley. See 
Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis 
v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. 
Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); 
but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 
2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. 
Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. 
Feb. 20, 2008)). Also through application of CPSIA, section 18C of the 
FLSA permits the person on whose behalf the order was issued to obtain 
judicial enforcement of the order. See 15 U.S.C. 2087(b)(7).

Section 1984.114 District Court Jurisdiction of Retaliation Complaints

    This section sets forth provisions that allow a complainant to 
bring an original de novo action in district court, alleging the same 
allegations contained in the complaint filed with OSHA, under certain 
circumstances. By incorporating the procedures, notifications, burdens 
of proof, remedies, and statutes of limitations set forth in CPSIA, 15 
U.S.C.

[[Page 13230]]

2087(b), section 18C permits a complainant to file an action for de 
novo review in the appropriate district court if there has been no 
final decision of the Secretary within 210 days of the filing of the 
complaint, or within 90 days after receiving a written determination. 
``Written determination'' refers to the Assistant Secretary's written 
findings issued at the close of OSHA's investigation under section 
1984.105(a). 15 U.S.C. 2087(b)(4). The Secretary's final decision is 
generally the decision of the ARB issued under section 1984.110. In 
other words, a complainant may file an action for de novo review in the 
appropriate district court in either of the following two 
circumstances: (1) A complainant may file a de novo action in district 
court within 90 days of receiving the Assistant Secretary's written 
findings issued under section 1984.105(a), or (2) a complainant may 
file a de novo action in district court if more than 210 days have 
passed since the filing of the complaint and the Secretary has not 
issued a final decision. The plain language of 15 U.S.C. 2087(b)(4), by 
distinguishing between actions that can be brought if the Secretary has 
not issued a ``final decision'' within 210 days and actions that can be 
brought within 90 days after a ``written determination,'' supports 
allowing de novo actions in district court under either of the 
circumstances described above. However, it is the Secretary's position 
that complainants may not initiate an action in federal court after the 
Secretary issues a final decision, even if the date of the final 
decision is more than 210 days after the filing of the complaint or 
within 90 days of the complainant's receipt of the Assistant 
Secretary's written findings. The purpose of the ``kick-out'' provision 
is to aid the complainant in receiving a prompt decision. That goal is 
not implicated in a situation where the complainant already has 
received a final decision from the Secretary. In addition, permitting 
the complainant to file a new case in district court in such 
circumstances could conflict with the parties' rights to seek judicial 
review of the Secretary's final decision in the court of appeals. See 
15 U.S.C. 2087(b)(5)(B) (providing that an order with respect to which 
review could have been obtained in [the court of appeals] shall not be 
subject to judicial review in any criminal or other civil proceeding).
    Under section 18C of the FLSA, the Assistant Secretary's written 
findings become the final order of the Secretary, not subject to 
judicial review, if no objection is filed within 30 days. See 15 U.S.C. 
2087(b)(2). Thus, a complainant may need to file timely objections to 
the Assistant Secretary's findings in order to preserve the right to 
file an action in district court.
    This section also requires that, within seven days after filing a 
complaint in district court, a complainant must provide a file-stamped 
copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, 
depending on where the proceeding is pending. A copy of the complaint 
also must be provided to the OSHA official who issued the findings and/
or preliminary order, the Assistant Secretary, and the U.S. Department 
of Labor's Associate Solicitor for Fair Labor Standards. This provision 
is necessary to notify the Agency that the complainant has opted to 
file a complaint in district court. This provision is not a substitute 
for the complainant's compliance with the requirements for service of 
process of the district court complaint contained in the Federal Rules 
of Civil Procedure and the local rules of the district court where the 
complaint is filed. The section also incorporates the statutory 
provisions which allow for a jury trial at the request of either party 
in a district court action, and which specify the remedies and burdens 
of proof in a district court action.

Section 1984.115 Special Circumstances; Waiver of Rules

    This section provides that in circumstances not contemplated by 
these rules or for good cause the ALJ or the ARB may, upon application 
and notice to the parties, waive any rule as justice or the 
administration of section 18C of the FLSA requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1984.103) which was previously reviewed as a 
statutory requirement of section 18C of the FLSA, 29 U.S.C. 218C, and 
approved for use by the Office of Management and Budget (``OMB''), and 
was assigned OMB control number 1218-0236 under the provisions of the 
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 
(1995). A non-material change has been submitted to OMB to include the 
regulatory citation.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of section 553 of the 
Administrative Procedure Act (APA) do not apply ``to interpretative 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency 
procedure, practice and interpretation within the meaning of that 
section. Therefore, publication in the Federal Register of a notice of 
proposed rulemaking and request for comments are not required for these 
regulations, which provide the procedures for the handling of 
retaliation complaints. Although this is a procedural rule not subject 
to the notice and comment procedures of the APA, the Agency is 
providing persons interested in this interim final rule 60 days to 
submit comments. A final rule will be published after the Agency 
receives and reviews the public's comments.
    Furthermore, because this rule is procedural and interpretative 
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that 
a rule be effective 30 days after publication in the Federal Register 
is inapplicable. The Assistant Secretary also finds good cause to 
provide an immediate effective date for this interim final rule. It is 
in the public interest that the rule be effective immediately so that 
parties may know what procedures are applicable to pending cases.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 
1995; Executive Order 13132

    The Office of Management and Budget has concluded that this rule is 
a ``significant regulatory action'' within the meaning of section 
3(f)(4) of Executive Order 12866. Executive Order 12866, reaffirmed by 
Executive Order 13563, requires a full economic impact analysis only 
for ``economically significant'' rules, which are defined in section 
3(f)(1) of Executive Order 12866 as rules that may ``[h]ave an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities.'' Because the rule is 
procedural and interpretative in nature, it is expected to have a 
negligible economic impact. Therefore, no economic impact analysis has 
been prepared. For the same reason, the rule does not require a section 
202 statement under the Unfunded Mandates Reform Act of 1995. 2 U.S.C. 
1531 et seq. Finally, this rule does not have ``federalism 
implications.'' The rule does not have ``substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government'' and

[[Page 13231]]

therefore is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

    The Department has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation simply implements procedures necessitated by enactment 
of section 18C of the FLSA. Furthermore, no certification to this 
effect is required and no regulatory flexibility analysis is required 
because no proposed rule has been issued.

List of Subjects in 29 CFR Part 1984

    Administrative practice and procedure, Employment, Health care, 
Investigations, Reporting and recordkeeping requirements, 
Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of David 
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational 
Safety and Health.

    Signed at Washington, DC, on February 13, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, for the reasons set out in the preamble, 29 CFR part 
1984 is added to read as follows:

PART 1984--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER SECTION 1558 OF THE AFFORDABLE CARE ACT

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1984.100 Purpose and scope.
1984.101 Definitions.
1984.102 Obligations and prohibited acts.
1984.103 Filing of retaliation complaint.
1984.104 Investigation.
1984.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1984.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1984.107 Hearings.
1984.108 Role of Federal agencies.
1984.109 Decision and orders of the administrative law judge.
1984.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1984.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1984.112 Judicial review.
1984.113 Judicial enforcement.
1984.114 District court jurisdiction of retaliation complaints.
1984.115 Special circumstances; waiver of rules.

    Authority: 29 U.S.C. 218C; Secretary's Order 1-2012 (Jan. 18, 
2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-2010 (Jan. 
15, 2010), 75 FR 3924 (Jan. 25, 2010).

Subpart A--Complaints, Investigations, Findings and Preliminary 
Orders


Sec.  1984.100  Purpose and scope.

    (a) This part implements procedures under section 1558 of the 
Patient Protection and Affordable Care Act, Public Law 111-148, 124 
Stat. 119, which was signed into law on March 23, 2010 and was amended 
by the Health Care and Education Reconciliation Act of 2010, Public Law 
111-152, 124 Stat. 1029, signed into law on March 30, 2010. The terms 
``Affordable Care Act'' or ``the Act'' are used in this part to refer 
to the final, amended version of the law. Section 1558 of the Act 
amended the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) by 
adding new section 18C. 29 U.S.C. 218C. Section 18C of the FLSA 
provides protection for an employee from retaliation because the 
employee has received a credit under section 36B of the Internal 
Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction 
(referred to as a ``subsidy'' in section 18C) under the Affordable Care 
Act section 1402, 42 U.S.C. 18071, or because the employee has engaged 
in protected activity pertaining to title I of the Affordable Care Act 
or any amendment made by title I of the Affordable Care Act.
    (b) This part establishes procedures under section 18C of the FLSA 
for the expeditious handling of retaliation complaints filed by 
employees, or by persons acting on their behalf. These rules, together 
with those codified at 29 CFR part 18, set forth the procedures under 
section 18C of the FLSA for submission of complaints, investigations, 
issuance of findings and preliminary orders, objections to findings and 
orders, litigation before administrative law judges (ALJs), post-
hearing administrative review, and withdrawals and settlements.


Sec.  1984.101  Definitions.

    As used in this part:
    (a) Affordable Care Act or ``the Act'' means The Patient Protection 
and Affordable Care Act, Public Law 111-148, 124 Stat. 119 (Mar. 23, 
2010), as amended by the Health Care and Education Reconciliation Act 
of 2010, Public Law 111-152.
    (b) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under section 18C of the FLSA.
    (c) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (d) Complainant means the employee who filed an FLSA section 18C 
complaint or on whose behalf a complaint was filed.
    (e)(1) Employee means any individual employed by an employer. In 
the case of an individual employed by a public agency, the term 
employee means any individual employed by the Government of the United 
States: As a civilian in the military departments (as defined in 5 
U.S.C. 102), in any executive agency (as defined in 5 U.S.C. 105), in 
any unit of the judicial branch of the Government which has positions 
in the competitive service, in a nonappropriated fund instrumentality 
under the jurisdiction of the Armed Forces, in the Library of Congress, 
or in the Government Printing Office. The term employee also means any 
individual employed by the United States Postal Service or the Postal 
Regulatory Commission; and any individual employed by a State, 
political subdivision of a State, or an interstate governmental agency, 
other than an individual who is not subject to the civil service laws 
of the State, political subdivision, or agency which employs him; and 
who holds a public elective office of that State, political 
subdivision, or agency, is selected by the holder of such an office to 
be a member of his personal staff, is appointed by such an officeholder 
to serve on a policymaking level, is an immediate adviser to such an 
officeholder with respect to the constitutional or legal powers of his 
office, or is an employee in the legislative branch or legislative body 
of that State, political subdivision, or agency and is not employed by 
the legislative library of such State, political subdivision, or 
agency.
    (2) The term employee does not include:
    (i) Any individual who volunteers to perform services for a public 
agency which is a State, a political subdivision of a State, or an 
interstate governmental agency, if the individual receives no 
compensation or is paid expenses, reasonable benefits, or a nominal fee 
to perform the services for which the individual volunteered--and such 
services are not the same type of services which the individual is 
employed to perform for such public agency;

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    (ii) Any employee of a public agency which is a State, political 
subdivision of a State, or an interstate governmental agency that 
volunteers to perform services for any other State, political 
subdivision, or interstate governmental agency, including a State, 
political subdivision or agency with which the employing State, 
political subdivision, or agency has a mutual aid agreement; or
    (iii) Any individual who volunteers their services solely for 
humanitarian purposes to private non-profit food banks and who receive 
groceries from the food banks.
    (3) The term employee includes former employees and applicants for 
employment.
    (f) Employer includes any person acting directly or indirectly in 
the interest of an employer in relation to an employee and includes a 
public agency, but does not include any labor organization (other than 
when acting as an employer) or anyone acting in the capacity of officer 
or agent of such labor organization.
    (g) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (h) Person means an individual, partnership, association, 
corporation, business trust, legal representative, or any organized 
group of persons.
    (i) Respondent means the employer named in the complaint who is 
alleged to have violated the Act.
    (j) Secretary means the Secretary of Labor or person to whom 
authority under the Affordable Care Act has been delegated.
    (k) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1984.102  Obligations and prohibited acts.

    (a) No employer may discharge or otherwise retaliate against, 
including, but not limited to, intimidating, threatening, restraining, 
coercing, blacklisting or disciplining, any employee with respect to 
the employee's compensation, terms, conditions, or privileges of 
employment because the employee (or an individual acting at the request 
of the employee), has engaged in any of the activities specified in 
paragraphs (b)(1) through (5) of this section.
    (b) An employee is protected against retaliation because the 
employee (or an individual acting at the request of the employee) has:
    (1) Received a credit under section 36B of the Internal Revenue 
Code of 1986, 26 U.S.C. 36B, or a subsidy under section 1402 of the 
Affordable Care Act, 42 U.S.C. 18071;
    (2) Provided, caused to be provided, or is about to provide or 
cause to be provided to the employer, the Federal Government, or the 
attorney general of a State information relating to any violation of, 
or any act or omission the employee reasonably believes to be a 
violation of, any provision of title I of the Affordable Care Act (or 
an amendment made by title I of the Affordable Care Act);
    (3) Testified or is about to testify in a proceeding concerning 
such violation;
    (4) Assisted or participated, or is about to assist or participate, 
in such a proceeding; or
    (5) Objected to, or refused to participate in, any activity, 
policy, practice, or assigned task that the employee (or other such 
person) reasonably believed to be in violation of any provision of 
title I of the Affordable Care Act (or amendment), or any order, rule, 
regulation, standard, or ban under title I of the Affordable Care Act 
(or amendment).


Sec.  1984.103  Filing of retaliation complaint.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against in violation of section 18C of the FLSA may file, or 
have filed by any person on the employee's behalf, a complaint alleging 
such retaliation.
    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the employee resides or was employed, but may be filed with any 
OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: http://www.osha.gov.
    (d) Time for filing. Within 180 days after an alleged violation of 
section 18C of the FLSA occurs, any employee who believes that he or 
she has been retaliated against in violation of that section may file, 
or have filed by any person on the employee's behalf, a complaint 
alleging such retaliation. The date of the postmark, facsimile 
transmittal, electronic communication transmittal, telephone call, 
hand-delivery, delivery to a third-party commercial carrier, or in-
person filing at an OSHA office will be considered the date of filing. 
The time for filing a complaint may be tolled for reasons warranted by 
applicable case law.


Sec.  1984.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint, of the allegations contained in the complaint, and of the 
substance of the evidence supporting the complaint. Such materials will 
be redacted, if necessary, in accordance with the Privacy Act of 1974, 
5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant 
Secretary will also notify the respondent of its rights under 
paragraphs (b) and (f) of this section and paragraph (e) of Sec.  
1984.110. The Assistant Secretary will provide an unredacted copy of 
these same materials to the complainant (or complainant's legal counsel 
if complainant is represented by counsel) and to the appropriate office 
of the Federal agency charged with the administration of the general 
provisions of the Affordable Care Act under which the complaint is 
filed: Either the Internal Revenue Service of the United States 
Department of the Treasury (IRS), the United States Department of 
Health and Human Services (HHS), or the Employee Benefits Security 
Administration of the United States Department of Labor (EBSA).
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
and the complainant each may submit to the Assistant Secretary a 
written statement and any affidavits or documents substantiating its 
position. Within the same 20 days, the respondent and the complainant 
each may request a meeting with the Assistant Secretary to present its 
position.
    (c) Throughout the investigation, the Agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to 
the Agency that are responsive to the complainant's whistleblower 
complaint. Before providing such materials to the complainant, the 
Agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. 
The Agency will also provide the complainant with an opportunity to 
respond to such submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential

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basis, other than the complainant, in accordance with part 70 of this 
title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complaint shows that the adverse action 
took place shortly after the protected activity, giving rise to the 
inference that it was a contributing factor in the adverse action. If 
the required showing has not been made, the complainant (or the 
complainant's legal counsel, if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent demonstrates by clear and convincing evidence that it would 
have taken the same adverse action in the absence of the complainant's 
protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, the Assistant 
Secretary will proceed with the investigation. The investigation will 
proceed whenever it is necessary or appropriate to confirm or verify 
the information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1984.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the respondent has violated 
section 18C of the FLSA and that preliminary reinstatement is 
warranted, the Assistant Secretary will again contact the respondent 
(or the respondent's legal counsel if respondent is represented by 
counsel) to give notice of the substance of the relevant evidence 
supporting the complainant's allegations as developed during the course 
of the investigation. This evidence includes any witness statements, 
which will be redacted to protect the identity of confidential 
informants where statements were given in confidence; if the statements 
cannot be redacted without revealing the identity of confidential 
informants, summaries of their contents will be provided. The 
complainant will also receive a copy of the materials that must be 
provided to the respondent under this paragraph. Before providing such 
materials to the complainant, the Agency will redact them, if 
necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, 
and other applicable confidentiality laws. The respondent will be given 
the opportunity to submit a written response, to meet with the 
investigators, to present statements from witnesses in support of its 
position, and to present legal and factual arguments. The respondent 
must present this evidence within 10 business days of the Assistant 
Secretary's notification pursuant to this paragraph, or as soon 
thereafter as the Assistant Secretary and the respondent can agree, if 
the interests of justice so require.


Sec.  1984.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of the complaint, written findings as to whether or not 
there is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of section 18C of the FLSA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief 
to the complainant. The preliminary order will require, where 
appropriate: Affirmative action to abate the violation; reinstatement 
of the complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney's and expert 
witness fees) reasonably incurred. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested, to all parties of 
record (and each party's legal counsel if the party is represented by 
counsel). The findings and, where appropriate, the preliminary order 
will inform the parties of the right to object to the findings and/or 
order and to request a hearing, and of the right of the respondent to 
request an award of attorney's fees not exceeding $1,000 from the ALJ, 
regardless of whether the respondent has filed objections, if 
respondent alleges that the complaint was frivolous or brought in bad 
faith. The findings and, where appropriate, the preliminary order also 
will give the address of the Chief Administrative Law Judge, U.S. 
Department of Labor. At the same time, the Assistant Secretary will 
file with the Chief Administrative Law Judge a copy of the original 
complaint and a copy of the findings and/or order.
    (c) The findings and any preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and/or a request for hearing has been timely filed as 
provided at Sec.  1984.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1984.106  Objections to the findings and the preliminary order 
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and/or preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith

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who seeks an award of attorney's fees under section 18C of the FLSA, 
must file any objections and/or a request for a hearing on the record 
within 30 days of receipt of the findings and preliminary order 
pursuant to Sec.  1984.105. The objections, request for a hearing, and/
or request for attorney's fees must be in writing and state whether the 
objections are to the findings, the preliminary order, and/or whether 
there should be an award of attorney's fees. The date of the postmark, 
facsimile transmittal, or electronic communication transmittal is 
considered the date of filing; if the objection is filed in person, by 
hand delivery or other means, the objection is filed upon receipt. 
Objections must be filed with the Chief Administrative Law Judge, U.S. 
Department of Labor, and copies of the objections must be mailed at the 
same time to the other parties of record, the OSHA official who issued 
the findings and order, the Assistant Secretary, and the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1984.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A of part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to an ALJ who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted de novo on the record. ALJs have broad 
discretion to limit discovery in order to expedite the hearing.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated and a single 
hearing will be conducted.
    (d) Formal rules of evidence will not apply, but rules or 
principles designed to assure production of the most probative evidence 
will be applied. The ALJ may exclude evidence that is immaterial, 
irrelevant, or unduly repetitious.


Sec.  1984.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding and must be served with copies of all documents in the case. 
At the Assistant Secretary's discretion, the Assistant Secretary may 
participate as a party or as amicus curiae at any time at any stage of 
the proceeding. This right to participate includes, but is not limited 
to, the right to petition for review of a decision of an ALJ, including 
a decision approving or rejecting a settlement agreement between the 
complainant and the respondent.
    (2) Copies of documents must be sent to the Assistant Secretary, 
and to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, only upon request of the Assistant Secretary, or 
where the Assistant Secretary is participating in the proceeding, or 
where service on the Assistant Secretary and the Associate Solicitor is 
otherwise required by these rules.
    (b) The IRS, HHS, and EBSA, if interested in a proceeding, may 
participate as amicus curiae at any time in the proceeding, at those 
agencies' discretion. At the request of the interested Federal agency, 
copies of all documents in a case must be sent to the Federal agency, 
whether or not the agency is participating in the proceeding.


Sec.  1984.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant to Sec.  
1984.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, and a complaint may 
not be remanded for the completion of an investigation or for 
additional findings on the basis that a determination to dismiss was 
made in error. Rather, if there otherwise is jurisdiction, the ALJ will 
hear the case on the merits or dispose of the matter without a hearing 
if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will require, where appropriate: 
Affirmative action to abate the violation; reinstatement of the 
complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions, and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney's and expert 
witness fees) reasonably incurred. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the ALJ may award to the 
respondent a reasonable attorney's fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the Administrative Review Board (ARB), U.S. 
Department of Labor. The

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decision of the ALJ will become the final order of the Secretary unless 
a petition for review is timely filed with the ARB and the ARB accepts 
the petition for review.


Sec.  1984.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney's 
fees, must file a written petition for review with the ARB, which has 
been delegated the authority to act for the Secretary and issue final 
decisions under this part. The parties should identify in their 
petitions for review the legal conclusions or orders to which they 
object, or the objections may be deemed waived. A petition must be 
filed within 14 days of the date of the decision of the ALJ. The date 
of the postmark, facsimile transmittal, or electronic communication 
transmittal will be considered to be the date of filing; if the 
petition is filed in person, by hand delivery or other means, the 
petition is considered filed upon receipt. The petition must be served 
on all parties and on the Chief Administrative Law Judge at the time it 
is filed with the ARB. Copies of the petition for review must be served 
on the Assistant Secretary, and on the Associate Solicitor, Division of 
Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim. In such 
case, the conclusion of the hearing is the date the motion for 
reconsideration is ruled upon or 14 days after a new decision is 
issued. The ARB's final decision will be served upon all parties and 
the Chief Administrative Law Judge by mail. The final decision will 
also be served on the Assistant Secretary, and on the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue a final order providing relief to the complainant. 
The final order will require, where appropriate: Affirmative action to 
abate the violation; reinstatement of the complainant to the 
complainant's former position, together with the compensation 
(including back pay and interest), terms, conditions, and privileges of 
the complainant's employment; and payment of compensatory damages, 
including, at the request of the complainant, the aggregate amount of 
all costs and expenses (including attorney's and expert witness fees) 
reasonably incurred. Interest on back pay will be calculated using the 
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 
and will be compounded daily.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney's fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1984.111  Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying the Assistant Secretary, 
orally or in writing, of his or her withdrawal. The Assistant Secretary 
then will confirm in writing the complainant's desire to withdraw and 
determine whether to approve the withdrawal. The Assistant Secretary 
will notify the parties (and each party's legal counsel if the party is 
represented by counsel) of the approval of any withdrawal. If the 
complaint is withdrawn because of settlement, the settlement must be 
submitted for approval in accordance with paragraph (d) of this 
section. A complainant may not withdraw his or her complaint after the 
filing of objections to the Assistant Secretary's findings and/or 
preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1984.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
the Assistant Secretary, the complainant, and the respondent agree to a 
settlement. The Assistant Secretary's approval of a settlement reached 
by the respondent and the complainant demonstrates the Assistant 
Secretary's consent and achieves the consent of all three parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is

[[Page 13236]]

approved by the ALJ if the case is before the ALJ, or by the ARB if the 
ARB has accepted the case for review. A copy of the settlement will be 
filed with the ALJ or the ARB, as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the ALJ, or 
the ARB will constitute the final order of the Secretary and may be 
enforced in United States district court pursuant to Sec.  1984.113.


Sec.  1984.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1984.109 and 1984.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the complainant 
resided on the date of the violation.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1984.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement, or a final order, including one approving a 
settlement agreement, issued under section 18C of the FLSA, the 
Secretary or a person on whose behalf the order was issued may file a 
civil action seeking enforcement of the order in the United States 
district court for the district in which the violation was found to 
have occurred. The Secretary also may file a civil action seeking 
enforcement of the order in the United States district court for the 
District of Columbia.


Sec.  1984.114  District court jurisdiction of retaliation complaints.

    (a) The complainant may bring an action at law or equity for de 
novo review in the appropriate district court of the United States, 
which will have jurisdiction over such an action without regard to the 
amount in controversy, either:
    (1) Within 90 days after receiving a written determination under 
Sec.  1984.105(a) provided that there has been no final decision of the 
Secretary; or
    (2) If there has been no final decision of the Secretary within 210 
days of the filing of the complaint.
    (3) At the request of either party, the action shall be tried by 
the court with a jury.
    (b) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in section 
1984.109. The court shall have jurisdiction to grant all relief 
necessary to make the employee whole, including injunctive relief and 
compensatory damages, including:
    (1) Reinstatement with the same seniority status that the employee 
would have had, but for the discharge or discrimination;
    (2) The amount of back pay, with interest; and
    (3) Compensation for any special damages sustained as a result of 
the discharge or discrimination, including litigation costs, expert 
witness fees, and reasonable attorney fees.
    (c) Within seven days after filing a complaint in federal court, a 
complainant must file with the Assistant Secretary, the ALJ, or the 
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. A copy of the complaint also must be served on the 
OSHA official who issued the findings and/or preliminary order, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.


Sec.  1984.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of 
these rules, or for good cause shown, the ALJ or the ARB on review may, 
upon application, after three- days notice to all parties, waive any 
rule or issue such orders that justice or the administration of section 
18C of the FLSA requires.

[FR Doc. 2013-04329 Filed 2-22-13; 11:15 am]
BILLING CODE 4510-26-P