[Federal Register Volume 79, Number 64 (Thursday, April 3, 2014)]
[Rules and Regulations]
[Pages 18630-18644]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07380]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1985

[Docket Number: OSHA-2011-0540]

RIN 1218-AC58


Procedures for Handling Retaliation Complaints Under the Employee 
Protection Provision of the Consumer Financial Protection Act of 2010

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 text of regulations 
governing the employee protection (or whistleblower) provisions of the 
Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-
Frank Wall Street Reform and Consumer Protection Act of 2010 (CFPA). 
This rule establishes procedures and time frames for the handling of 
retaliation complaints under CFPA, 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 April 3, 2014. Comments 
and additional materials must be

[[Page 18631]]

submitted (post-marked, sent or received) by June 2, 2014.

ADDRESSES: You may submit your comments by using one of the following 
methods:
    Electronically: 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 may submit your comments and attachments to the OSHA Docket Office, 
Docket No. OSHA-2011-0540, 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., E.T.
    Instructions: All submissions must include the agency name and the 
OSHA docket number for this rulemaking (Docket No. OSHA-2011-0540). 
Submissions, including any personal information you provide, are placed 
in the public docket without change and may be made available online at 
http://www.regulations.gov. Therefore, OSHA cautions you about 
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: Katelyn Wendell, Program Analyst, 
Directorate of Whistleblower Protection Programs, Occupational Safety 
and Health Administration, 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@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 Consumer Financial Protection Act of 2010 (CFPA or the Act), 
was enacted as Title X of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act of 2010 (Dodd-Frank Act), Public Law 111-203, 
124 Stat. 1376, on July 21, 2010. The Act established the Bureau of 
Consumer Financial Protection (Bureau) as an independent bureau within 
the Federal Reserve System and gave the Bureau the power to regulate 
the offering and provision of consumer financial products or services 
under more than a dozen Federal consumer financial laws. The laws 
subject to the Bureau's jurisdiction include, among others, CFPA, the 
Consumer Leasing Act of 1976 (15 U.S.C. 1667 et seq.), the Equal Credit 
Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Credit Billing Act 
(15 U.S.C. 1666 et seq.), the Fair Debt Collection Practices Act (15 
U.S.C. 1692 et seq.), the Home Mortgage Disclosure Act of 1975 (12 
U.S.C. 2801 et seq.), the Real Estate Settlement Procedures Act of 1974 
(12 U.S.C. 2601 et seq.), and the Truth in Lending Act (15 U.S.C. 1601 
et seq.). The regulations to be enforced by the Bureau include certain 
regulations issued by seven ``transferor agencies,'' including the 
Board of Governors of the Federal Reserve System, the Federal Deposit 
Insurance Corporation, the Federal Trade Commission, the National 
Credit Union Administration, the Office of the Comptroller of the 
Currency, the Office of Thrift Supervision, and the Department of 
Housing and Urban Development. The Bureau also has concurrent authority 
to enforce the Telemarketing Sales Rule issued by the Federal Trade 
Commission. The Bureau published an initial list of such rules and 
regulations. See 76 FR 43569-71 (July 21, 2011). It has also revised 
and republished many of these regulations, and announced its intention 
to continue doing so. See, e.g., Streamlining Inherited Regulations, 76 
FR 75825 (Dec. 5, 2011); Final Rule, Disclosure and Delivery 
Requirements for Copies of Appraisals and Other Written Valuations 
Under the Equal Credit Opportunity Act (Regulation B), 78 FR 7216, 
7218-7219 (Jan. 31, 2013) (noting Bureau's issuance of five new 
regulations governing the mortgage industry).
    The Bureau also has authority to issue and enforce new rules, 
orders, standards and prohibitions which will apply to banks and other 
covered persons who provide consumer financial products and services as 
defined in the CFPA, in addition to the existing Federal consumer 
financial protection laws and regulations listed above. These include, 
but are not limited to, providers of the following consumer financial 
products or services: (1) Residential mortgage loan origination, 
brokerage, and servicing, modification and foreclosure relief services; 
(2) private education loans; (3) payday loans; (4) consumer debt 
collection; (5) consumer credit reporting; (6) finance companies, 
consumer lending, and loan servicing and brokerage; (7) money 
transmitting and check cashing services; (8) prepaid card services; (9) 
debt relief services, and (10) any service provider or affiliate which 
is related to such an entity.
    More information about the Bureau, its jurisdiction, and the laws 
and regulations it enforces is available at its Web site, http://www.consumerfinance.gov/the-bureau.
    Section 1057 of the Dodd-Frank Act, codified at 12 U.S.C. 5567 and 
referred to throughout these interim final rules as CFPA, provides 
protection to covered employees, and authorized representatives of such 
employees, against retaliation because they provided information to 
their employer, to the Bureau, or to any other Federal, State, or local 
government authority or law enforcement agency relating to any 
violation of (or any act or omission that the employee reasonably 
believes to be a violation of) any provision of the Act or any other 
provision of law that is subject to the jurisdiction of the Bureau, or 
any rule, order, standard, or prohibition prescribed by the Bureau; 
testified or will testify in any proceeding resulting from the 
administration or enforcement of any provision of the Act or any other 
provision of law that is subject to the jurisdiction of the Bureau, or 
any rule, order, standard, or prohibition prescribed by the Bureau; 
filed, instituted, or caused to be filed or instituted any proceeding 
under any Federal consumer financial law; or 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 law, rule, order, standard, or prohibition, subject to 
the jurisdiction of, or enforceable by, the Bureau.
    These interim final rules establish procedures for the handling of 
whistleblower complaints under CFPA.

II. Summary of Statutory Procedures

    CFPA's whistleblower provisions include procedures that allow a 
covered

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employee to 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 statute provides that 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 it would have 
taken the same adverse action in the absence of that activity (see 
section 1985.104 for a summary of the investigation process). OSHA 
interprets the prima facie case requirement as allowing the complainant 
to meet this burden through the complaint as supplemented by interviews 
of the complainant.
    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 receipt of the Secretary's notification in which to file objections 
to the findings and/or preliminary order and request a hearing before 
an administrative law judge (ALJ). The filing of objections under CFPA 
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, CFPA 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 
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 
employer reasonable attorney fees, 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.
    CFPA 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 the date of receipt of a written 
determination. The provision provides that the court will have 
jurisdiction over the action without regard to the amount in 
controversy and that the case will be tried before a jury at the 
request of either party.
    Finally, CFPA provides that except in very limited circumstances, 
and notwithstanding any other provision of law, the rights and remedies 
provided for in the CFPA whistleblower provision may not be waived by 
any agreement, policy, form, or condition of employment, including by 
any predispute arbitration agreement, and no predispute arbitration 
agreement shall be valid or enforceable to the extent that it requires 
arbitration of a dispute arising under CFPA's whistleblower provision.

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 CFPA. Responsibility for receiving and 
investigating complaints under CFPA has been delegated to the Assistant 
Secretary for Occupational Safety and Health (Assistant Secretary) by 
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 of Labor's Order No. 2-2012, 77 
FR 69378 (Nov. 16, 2012).

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

Section 1985.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
CFPA and provides an overview of the procedures covered by these 
regulations.
Section 1985.101 Definitions
    This section includes the general definitions from Section 1002 of 
the Dodd-Frank Act, 12 U.S.C. 5481, which are applicable to CFPA's 
whistleblower provisions. The Act defines the term ``affiliate'' as 
``any person that controls, is controlled by, or is under common 
control with another person.'' 12 U.S.C. 5481(1). It defines the term 
``consumer'' as ``an individual or an agent, trustee, or representative 
acting on behalf of an individual.'' 12 U.S.C. 5481(4).
    The Act defines a ``consumer financial product or service'' to 
include a wide variety of financial products or services offered or 
provided for use by consumers primarily for personal, family, or 
household purposes. See 12 U.S.C. 5481(5), (15). Included within the 
definition of consumer financial product or services are residential 
mortgage origination, lending, brokerage and servicing, and related 
products and services such as mortgage loan modification and 
foreclosure relief; private student loans; payday loans; and certain 
other financial services such as consumer debt collection, consumer 
credit reporting, credit cards and related activities, money 
transmitting, check cashing and related activities, prepaid cards, and 
debt relief services. See, e.g., Notice and Request for Comment, 
Defining Larger Participants in Certain Consumer Financial Products and 
Services Markets, 76 FR 38059-62 (June 29, 2011) (Bureau request for 
comment

[[Page 18633]]

on exercise of jurisdiction over consumer debt collection, consumer 
credit reporting, consumer credit and related activities, money 
transmitting, check cashing and related activities, prepaid cards, and 
debt relief services). More information about the Bureau is available 
at its Web site, http://www.consumerfinance.gov/the-bureau.
    The Act defines ``covered person'' as ``any person that engages in 
offering or providing a consumer financial product or service'' and 
``any affiliate of [such] a person . . . if [the] affiliate acts as a 
service provider to such person.'' 12 U.S.C. 5481(6). It defines the 
term ``person'' as ``an individual, partnership, company, corporation, 
association (incorporated or unincorporated), trust, estate, 
cooperative organization, or other entity.'' 12 U.S.C. 5481(19). The 
law defines ``service provider'' as ``any person that provides a 
material service to a covered person in connection with the offering or 
provision by such covered person of a consumer financial product or 
service, including a person that--(i) participates in designing, 
operating, or maintaining the consumer financial product or service; or 
(ii) processes transactions relating to the consumer financial product 
or service . . . .'' 12 U.S.C. 5481(26)(A). The term ``service 
provider'' does not include a person who solely offers or provides 
general business support services or advertising services. 12 U.S.C. 
5481(26)(B). Anyone who is a ``service provider'' is also ``deemed to 
be a covered person to the extent that such person engages in the 
offering or provision of its own consumer financial product or 
service.'' 12 U.S.C. 5481(26)(C).
    CFPA defines ``covered employee'' as ``any individual performing 
tasks related to the offering or provision of a consumer financial 
product or service.'' 12 U.S.C. 5567(b). Consistent with the other 
whistleblower protection provisions administered by OSHA, OSHA 
interprets the term ``covered employee'' to also include individuals 
presently or formerly working for, individuals applying to work for, 
and individuals whose employment could be affected by a covered person 
or service provider where such individual was performing tasks related 
to the offering or provision of a consumer financial product or service 
at the time that the individual engaged in protected activity under 
CFPA. See, e.g., 29 CFR 1979.101; 29 CFR 1980.101(g); 29 CFR 1981.101; 
29 CFR 1982.101(d); 29 CFR 1983.101(h). OSHA believes this 
interpretation of the term ``covered employee'' best implements the 
broad statutory protections of CFPA, which aim to protect individuals 
who perform tasks related to the offering or provision of a consumer 
financial product or service from termination or any other form of 
retaliation resulting from their protected activity under CFPA.
Section 1985.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under CFPA 
and the conduct that is prohibited in response to any protected 
activities. As described above, CFPA protects individuals who provide 
information to their employer, to the Bureau, or to any other Federal, 
State, or local government authority or law enforcement agency relating 
to any violation of (or any act or omission that the employee 
reasonably believes to be a violation of) any provision of the Act or 
any other provision of law that is subject to the jurisdiction of the 
Bureau, or any rule, order, standard, or prohibition prescribed by the 
Bureau. CFPA also protects individuals who object to, or refuse to 
participate in, any activity, policy, practice, or assigned task that 
the employee (or other such person) reasonably believes to be in 
violation of any law, rule, order, standard, or prohibition, subject to 
the jurisdiction of, or enforceable by, the Bureau. More information 
about the Bureau is available at its Web site, http://www.consumerfinance.gov/the-bureau.
    In order to have a ``reasonable belief'' under CFPA, 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, rule, order, standard, or 
prohibition. See id. The objective ``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 1985.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation 
complaint under CFPA. 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 to take an adverse action. Equal Emp't Opportunity Comm'n v. 
United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). The 
time for filing a complaint under CFPA may be tolled for reasons 
warranted by applicable case law. For example, OSHA may consider the 
time for filing a complaint equitably tolled if a complainant 
mistakenly files a complaint with an agency other than OSHA within 180 
days after an alleged adverse action.
    Complaints filed under CFPA 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 
CFPA 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 25, 2011) (holding that 
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 OSHA to the existence of the alleged retaliation and the 
complainant's desire that OSHA investigate the complaint. Upon receipt 
of the complaint, OSHA 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 1985.104(e). As explained in section 1985.104(e), if the

[[Page 18634]]

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 12 U.S.C. 5567(c)(2)(B), 29 CFR 1985.104(e).
Section 1985.104 Investigation
    This section describes the procedures that apply to the 
investigation of CFPA complaints. Paragraph (a) of this section 
outlines the procedures for notifying the parties and the Bureau 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 
OSHA will provide to the complainant (or the complainant's legal 
counsel if the complainant is represented by counsel) a copy of all of 
respondent's submissions to OSHA that are responsive to the 
complainant's whistleblower complaint at a time permitting the 
complainant an opportunity to respond to those submissions. Before 
providing such materials to the complainant, OSHA 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. CFPA requires that a complainant make an initial prima facie 
showing that a 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 within a temporal proximity of the protected 
activity, or at the first opportunity available to the respondent, 
giving rise to the inference that it was a contributing factor in the 
adverse action. See, e.g. Porter v. Cal. Dep't of Corr, 419 F.3d 885, 
895 (9th Cir. 2005) (years between the protected activity and the 
retaliatory actions did not defeat a finding of a causal connection 
where the defendant did not have the opportunity to retaliate until he 
was given responsibility for making personnel decisions).
    If the complainant does not make the required prima facie showing 
by raising a non-frivolous allegation of retaliation, 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 as that under CFPA, 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 employer 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 CFPA and not investigate further 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 employer 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 statute requires OSHA to determine whether there is 
reasonable cause to believe that protected activity was a contributing 
factor in the alleged adverse action. 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)); see also Addis v. Dep't of Labor, 575 F.3d 
688, 689-91 (7th Cir. 2009) (discussing Marano as applied to analogous 
whistleblower provision in the ERA); Clarke v. Navajo Express, Inc., 
ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) (discussing 
burdens of proof under analogous whistleblower provision in the Surface 
Transportation Assistance Act (STAA)). For protected activity to be 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 Act of 2002 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).
    If OSHA finds reasonable cause to believe that the alleged 
protected activity was a contributing factor in the adverse action, 
OSHA may not order relief if the employer demonstrates by ``clear and 
convincing evidence'' that it would have taken the same action in the 
absence of the protected activity. See 12 U.S.C. 5567(c)(3)(C). The 
``clear and convincing evidence'' standard is a higher burden of proof 
than a ``preponderance of the evidence'' standard. Clear and convincing 
evidence is evidence indicating that the thing to be proved is highly 
probable or reasonably certain. Clarke, 2011 WL 2614326, at *3.
    Paragraph (f) describes the procedures OSHA will follow prior to 
the issuance of findings and a preliminary order when OSHA has 
reasonable cause to believe that a violation has occurred. Its purpose 
is to ensure compliance with the Due Process Clause of the Fifth 
Amendment, as interpreted by the Supreme Court in Brock v. Roadway 
Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a STAA 
respondent the opportunity to review the substance of the evidence and 
respond, prior to ordering preliminary reinstatement).
Section 1985.105 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

[[Page 18635]]

appropriate, the preliminary order, also advise the respondent of the 
right to request an award of attorney 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 CFPA, 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 
(NLRB). 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 ordering back pay, OSHA will require the respondent to submit 
the appropriate documentation to the Social Security Administration 
(SSA) allocating the back pay to the appropriate calendar quarters. 
Requiring the reporting of back pay allocation to the SSA better serves 
the remedial purposes of CFPA by ensuring that employees subjected to 
discrimination are truly made whole. See Latino Express, Inc., et al, 
359 NLRB No. 44, 2012 WL 6641632 (NLRB Dec. 18, 2012). As the NLRB 
explained, when back pay is not properly allocated to the years covered 
by the award, a complainant may be disadvantaged in several ways. 
First, improper allocation may interfere with a complainant's ability 
to qualify for any old-age Social Security benefit. Id. at *2 (``Unless 
a [complainant's] multiyear backpay award is allocated to the 
appropriate years, she will not receive appropriate credit for the 
entire period covered by the award, and could therefore fail to qualify 
for any old-age Social Security benefit.''). Second, improper 
allocation may reduce the complainant's eventual monthly benefit. Id. 
As the NLRB explained, ``[i]f a backpay award covering a multi-year 
period is posted as income for one year, it may result in SSA treating 
the [complainant] as having received wages in that year in excess of 
the annual contribution and benefit base.'' Id. Wages above this base 
are not subject to Social Security taxes, which reduces the amount paid 
on the employee's behalf. ``As a result, the [complainant's] eventual 
monthly benefit will be reduced, because participants receive a greater 
benefit when they have paid more into the system.'' Id. Finally, 
``Social Security benefits are calculated using a progressive formula: 
Although a participant receives more in benefits when she pays more 
into the system, the rate of return diminishes at higher annual 
incomes.'' Therefore, a complainant may ``receive a smaller monthly 
benefit when a multi-year award is posted to one year rather than being 
allocated to the appropriate periods, even if Social Security taxes 
were paid on the entire amount.'' Id. The purpose of a make-whole 
remedy such as back pay is to put the complainant in the same position 
she would have been absent the prohibited retaliation. Should a 
complainant be required to suffer the above disadvantages, she would 
not truly be in the same position she would be had she not been 
subjected to retaliation. As such, the Secretary agrees that requiring 
proper SSA allocation better achieves the make-whole purpose of a back 
pay award.
    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 termination, but not actually return 
to work. Such ``economic reinstatement'' is akin to an order of front 
pay and frequently is employed in cases arising under Section 105(c) of 
the Federal Mine Safety and Health Act of 1977, which protects miners 
from retaliation. 30 U.S.C. 815(c); 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 Nos. 98-166, 98-169 (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); Michaud v. BSP Transport, Inc., ARB Nos. 97-113, 1997 
WL 626849, at *4 (ARB Oct. 9, 1997) (under STAA, front pay appropriate 
where employee was unable to work due to major depression resulting 
from the retaliation); 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); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 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 CFPA. 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 immediate 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.

[[Page 18636]]

Subpart B--Litigation

Section 1985.106 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 the Assistant Secretary'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 CFPA 
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 the Assistant Secretary's findings and/or 
preliminary order is filed, then the Assistant Secretary's findings 
and/or preliminary order become the final decision of the Secretary not 
subject to judicial review.
Section 1985.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
as set forth in 29 CFR part 18 subpart A. 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 1985.108 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 CFPA. 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, multiple employees, alleged violations that appear egregious, 
or where the interests of justice might require participation by the 
Assistant Secretary. The Bureau, if interested in a proceeding, also 
may participate as amicus curiae at any time in the proceedings.
Section 1985.109 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 CFPA. Specifically, the complainant must demonstrate 
(i.e. prove by a preponderance of the evidence) that the protected 
activity was a ``contributing factor'' in the adverse action. See, 
e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) 
(``The term `demonstrates' [under identical burden-shifting scheme in 
the Sarbanes-Oxley whistleblower provision] means to prove by a 
preponderance of the evidence.''). If the employee demonstrates that 
the alleged protected activity was a contributing factor in the adverse 
action, the employer, to escape liability, must demonstrate by ``clear 
and convincing evidence'' that it would have taken the same action in 
the absence of the protected activity. See 12 U.S.C. 5567(c)(3)(C).
    Paragraph (c) of this section further provides that OSHA's 
determination to dismiss the complaint without an investigation or 
without a complete investigation under section 1985.104 is not subject 
to review. Thus, section 1985.109(c) clarifies that OSHA's 
determinations on whether to proceed with an investigation under CFPA 
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 OSHA to 
conduct an investigation or make further factual findings. Paragraph 
(d) notes the remedies that the ALJ may order under CFPA and, as 
discussed under section 1985.105 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, and that the respondent will be required to submit appropriate 
documentation to the Social Security Administration (SSA) allocating 
any back pay award to the appropriate calendar quarters. Paragraph (e) 
requires that the ALJ's decision be served on all parties to the 
proceeding, OSHA, 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 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 1985.110 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

[[Page 18637]]

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 CFPA, 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 CFPA 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 employment; and payment 
of compensatory damages, including, at the request of the complainant, 
the aggregate amount of all costs and expenses (including attorney 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, and the respondent 
will be required to submit appropriate documentation to the Social 
Security Administration (SSA) allocating any back pay award to the 
appropriate calendar quarters. 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 reasonable attorney fees, not 
exceeding $1,000.

Subpart C--Miscellaneous Provisions

Section 1985.111 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 1985.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, the ARB or the ALJ to submit the record of 
proceedings to the appropriate court pursuant to the rules of such 
court.
Section 1985.113 Judicial Enforcement
    This section describes the Secretary's authority under CFPA to 
obtain judicial enforcement of orders and terms of settlement 
agreements. CFPA expressly authorizes district courts to enforce orders 
issued by the Secretary under 12 U.S.C. 5567. Specifically, the statute 
provides that ``[i]f any person has failed to comply with a final order 
issued under paragraph (4), the Secretary of Labor may file a civil 
action in the United States district court for the district in which 
the violation was found to have occurred, or in the United States 
district court for the District of Columbia, to enforce such order. In 
actions brought under this paragraph, the district courts shall have 
jurisdiction to grant all appropriate relief including injunctive 
relief and compensatory damages.'' 12 U.S.C. 5567(c)(5)(A).
    All orders issued by the Secretary under 12 U.S.C. 5567 may also be 
enforced by any person on whose behalf an order was issued in district 
court, under 12 U.S.C. 5567(c)(5)(B). The Secretary interprets these 
provisions to grant the district court authority to enforce preliminary 
orders of reinstatement. Subsection (c)(2)(B) provides that the 
Secretary shall order the person who has committed a violation to 
reinstate the complainant to his or her former position (12 U.S.C. 
5567(c)(2)(B)). Subsection (c)(2)(B) also instructs the Secretary to 
accompany any reasonable cause finding that a violation has occurred 
with a preliminary order containing the relief prescribed by paragraph 
(4)(B), which includes reinstatement, (see 12 U.S.C. 5567(c)(2)(B)). 
Subsection (c)(2)(C) declares that any reinstatement remedy contained 
in a preliminary order is not stayed upon the filing of objections. 12 
U.S.C. 5567(c)(2)(C) (``The filing of such objections shall not operate 
to stay any reinstatement remedy contained in the preliminary 
order.''). Thus, under the statute, enforceable orders under paragraph 
(c)(5) include both preliminary orders issued under subsection 
(c)(2)(B), and final orders issued under subsection (c)(4)(A), both of 
which may contain the relief of reinstatement as prescribed by 
subsection (c)(4)(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, 49 U.S.C. 42121, and 
Section 806 of the Corporate and Criminal Fraud Accountability Act of 
2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A. 
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)).
Section 1985.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth CFPA's provisions allowing 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. CFPA 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 after the date of the filing 
of the complaint, or within 90 days after the date of receipt of a 
written determination. 12 U.S.C. 5567(c)(4)(D)(i). ``Written 
determination'' refers to the Assistant Secretary's written findings 
issued at the close of OSHA's investigation under section 1985.105(a). 
See 12 U.S.C. 5567(c)(2)(A)(ii). The Secretary's final decision is 
generally the decision of the ARB issued under section 1985.110. 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

[[Page 18638]]

complainant may file a de novo action in district court within 90 days 
of receiving the Assistant Secretary's written findings issued under 
section 1985.105(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 12 U.S.C. 5567(c)(4)(D)(i), 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. 
Thus, for example, after the ARB has issued a final decision denying a 
whistleblower complaint, the complainant no longer may file an action 
for de novo review in federal district court. 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 12 U.S.C. 5567(c)(4)(E) (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 CFPA, 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 12 U.S.C. 5567(c)(2)(C). 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 OSHA, the ALJ, or the ARB, depending on where 
the proceeding is pending. A copy of the District Court 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 OSHA 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 1985.115 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 CFPA requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1985.103) which was previously reviewed as a 
statutory requirement of CFPA 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, OSHA is providing 
persons interested in this interim final rule 60 days to submit 
comments. A final rule will be published after OSHA 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. OSHA 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.'' The rule is procedural 
and interpretative in nature. Because it simply implements procedures 
necessitated by enactment of CFPA, the rule is expected to have a 
negligible economic impact. Therefore, no economic impact analysis 
under Section 6(a)(3)(C) of Executive Order 12866 has been prepared. 
For the same reason, and the fact that no notice of proposed rulemaking 
has been published, 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,'' in that 
it 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 therefore is not subject to Executive Order 13132 
(Federalism).

VII. Regulatory Flexibility Analysis

    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

[[Page 18639]]

practice.'' 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice 
and comment requirements are also exempt from the Regulatory 
Flexibility Act (RFA). See SBA Office of Advocacy, A Guide for 
Government Agencies: How to Comply with the Regulatory Flexibility Act 
9 (May 2012); also found at: http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf. This is a rule of agency procedure, practice, 
and interpretation within the meaning of that section; and therefore 
the rule is exempt from both the notice and comment rulemaking 
procedures of the APA and the requirements under the RFA.

List of Subjects in 29 CFR Part 1985

    Administrative practice and procedure, Employment, Consumer 
financial protection, 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 March 21, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1985 
is added to read as follows:

PART 1985--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER THE 
EMPLOYEE PROTECTION PROVISION OF THE CONSUMER FINANCIAL PROTECTION 
ACT OF 2010

Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1985.100 Purpose and scope.
1985.101 Definitions.
1985.102 Obligations and prohibited acts.
1985.103 Filing of retaliation complaint.
1985.104 Investigation.
1985.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1985.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1985.107 Hearings.
1985.108 Role of Federal agencies.
1985.109 Decision and orders of the administrative law judge.
1985.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1985.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1985.112 Judicial review.
1985.113 Judicial enforcement.
1985.114 District court jurisdiction of retaliation complaints.
1985.115 Special circumstances; waiver of rules.

    Authority:  12 U.S.C. 5567; Secretary of Labor's Order No. 1-
2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of 
Labor's Order No. 2-2012, 77 Fed. Reg. 69378 (Nov. 16, 2012).

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


Sec.  1985.100  Purpose and scope.

    (a) This part implements procedures of the employee protection 
provision of the Consumer Financial Protection Act of 2010, Section 
1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act 
of 2010 (CFPA or the Act), Public Law 111-203, 124 Stat. 1376, 1955 
(July 21, 2010) (codified at 12 U.S.C. 5567). CFPA provides for 
employee protection from retaliation because the employee has engaged 
in protected activity pertaining to the offering or provision of 
consumer financial products or services.
    (b) This part establishes procedures under CFPA for the expeditious 
handling of retaliation complaints filed by employees, or by persons 
acting on their behalf, and sets forth OSHA's interpretations of CFPA. 
These rules, together with those codified at 29 CFR part 18, set forth 
the procedures under CFPA 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.  1985.101  Definitions.

    As used in this part:
    (a) Affiliate means any person that controls, is controlled by, or 
is under common control with another person.
    (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 CFPA.
    (c) Bureau means the Bureau of Consumer Financial Protection.
    (d) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (e) CFPA means Section 1057 of the Dodd-Frank Wall Street Reform 
and Consumer Protection Act of 2010, Public Law 111-203, 124 Stat. 
1376, 1955 (July 21, 2010) (codified at 12 U.S.C. 5567).
    (f) Complainant means the person who filed a CFPA complaint or on 
whose behalf a complaint was filed.
    (g) Consumer means an individual or an agent, trustee, or 
representative acting on behalf of an individual.
    (h) Consumer financial product or service means any financial 
product or service that is:
    (1) Described in one or more categories in 12 U.S.C. 5481(15) and 
is offered or provided for use by consumers primarily for personal, 
family, or household purposes; or
    (2) Described in clause (i), (iii), (ix), or (x) of 12 U.S.C. 
5481(15)(A), and is delivered, offered, or provided in connection with 
a consumer financial product or service referred to in paragraph (h)(1) 
of this section.
    (i) Covered employee means any individual performing tasks related 
to the offering or provision of a consumer financial product or 
service. The term ``covered employee'' includes an individual presently 
or formerly working for, an individual applying to work for, or an 
individual whose employment could be affected by a covered person or 
service provider where such individual was performing tasks related to 
the offering or provision of a consumer financial product or service at 
the time that the individual engaged in protected activity under CFPA.
    (j) Covered person means--
    (1) Any person that engages in offering or providing a consumer 
financial product or service, or
    (2) Any affiliate of such a person if such affiliate acts as a 
service provider to such person, or
    (3) Any service provider to the extent that such person engages in 
the offering or provision of its own consumer financial product or 
service.
    (k) Federal consumer financial law means any law described in 12 
U.S.C. 5481(14).
    (l) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (m) Person means an individual, partnership, company, corporation, 
association (incorporated or unincorporated), trust, estate, 
cooperative organization, or other entity.
    (n) Respondent means the person named in the complaint who is 
alleged to have violated the Act.
    (o) Secretary means the Secretary of Labor or person to whom 
authority under CFPA has been delegated.
    (p) Service provider means any person that provides a material 
service to a

[[Page 18640]]

covered person in connection with the offering or provision by such 
covered person of a consumer financial product or service, including a 
person that--
    (1) Participates in designing, operating, or maintaining the 
consumer financial product or service; or
    (2) Processes transactions relating to the consumer financial 
product or service (other than unknowingly or incidentally transmitting 
or processing financial data in a manner that such data is 
undifferentiated from other types of data of the same form as the 
person transmits or processes);
    (3) The term ``service provider'' does not include a person solely 
by virtue of such person offering or providing to a covered person:
    (i) A support service of a type provided to businesses generally or 
a similar ministerial service; or
    (ii) Time or space for an advertisement for a consumer financial 
product or service through print, newspaper, or electronic media.
    (q) 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.  1985.102  Obligations and prohibited acts.

    (a) No covered person or service provider may terminate or in any 
other way retaliate against, or cause to be terminated or retaliated 
against, including, but not limited to, intimidating, threatening, 
restraining, coercing, blacklisting or disciplining, any covered 
employee or any authorized representative of covered employees because 
such employee or representative, whether at the employee's initiative 
or in the ordinary course of the employee's duties (or any person 
acting pursuant to a request of the employee), engaged in any of the 
activities specified in paragraphs (b)(1) through (4) of this section.
    (b) A covered employee or authorized representative is protected 
against retaliation (as described in paragraph (a) of this section) by 
a covered person or service provider because he or she:
    (1) Provided, caused to be provided, or is about to provide or 
cause to be provided to the employer, the Bureau, or any other State, 
local, or Federal, government authority or law enforcement agency, 
information relating to any violation of, or any act or omission that 
the employee reasonably believes to be a violation of, any provision of 
Title X of the Dodd-Frank Wall Street Reform and Consumer Protection 
Act of 2010, Public Law 111-203, 124 Stat. 1376, 1955 (July 21, 2010), 
or any other provision of law that is subject to the jurisdiction of 
the Bureau, or any rule, order, standard, or prohibition prescribed by 
the Bureau;
    (2) Testified or will testify in any proceeding resulting from the 
administration or enforcement of any provision of Title X of the Dodd-
Frank Wall Street Reform and Consumer Protection Act of 2010, Public 
Law 111-203, 124 Stat. 1376, 1955 (July 21, 2010), or any other 
provision of law that is subject to the jurisdiction of the Bureau, or 
any rule, order, standard, or prohibition prescribed by the Bureau;
    (3) Filed, instituted, or caused to be filed or instituted any 
proceeding under any Federal consumer financial law; or
    (4) 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 law, rule, order, 
standard, or prohibition subject to the jurisdiction of, or enforceable 
by, the Bureau.


Sec.  1985.103  Filing of retaliation complaint.

    (a) Who may file. A person who believes that he or she has been 
discharged or otherwise retaliated against by any person in violation 
of CFPA may file, or have filed by any person on his or her 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 complainant 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 
CFPA occurs, any person who believes that he or she has been retaliated 
against in violation of the Act may file, or have filed by any person 
on his or her 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. For example, OSHA 
may consider the time for filing a complaint equitably tolled if a 
complainant mistakenly files a complaint with an agency other than OSHA 
within 180 days after an alleged adverse action.


Sec.  1985.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
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. OSHA will also notify the 
respondent of its rights under paragraphs (b) and (f) of this section 
and Sec.  1985.110(e). OSHA will provide an unredacted copy of these 
same materials to the complainant (or the complainant's legal counsel 
if complainant is represented by counsel) and to the Bureau.
    (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 OSHA 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 OSHA to present its position.
    (c) OSHA 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 OSHA that are responsive to the 
complainant's whistleblower complaint at a time permitting the 
complainant an opportunity to respond. Before providing such materials 
to the complainant, OSHA will redact them, if necessary, in accordance 
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable 
confidentiality laws. OSHA 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 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 (i.e. a non-frivolous allegation) that a 
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

[[Page 18641]]

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 within a temporal proximity of the protected activity, or at 
the first opportunity available to the respondent, 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, further investigation of 
the complaint will not be conducted 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, OSHA 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.  1985.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated CFPA and that preliminary 
reinstatement is warranted, OSHA will 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, OSHA 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 OSHA's 
notification pursuant to this paragraph, or as soon thereafter as OSHA 
and the respondent can agree, if the interests of justice so require.


Sec.  1985.105  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 CFPA.
    (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 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. The preliminary order will 
also require the respondent to submit appropriate documentation to the 
Social Security Administration (SSA) allocating any back pay award to 
the appropriate calendar quarters.
    (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 (or other means 
that allow OSHA to confirm receipt), 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 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. 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.  1985.106. 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.  1985.106  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 who seeks an award of 
attorney fees under CFPA, 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.  1985.105. The objections, request

[[Page 18642]]

for a hearing, and/or request for attorney 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 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.  1985.107  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.  1985.108  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 OSHA and to the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
only upon request of OSHA, or where the Assistant Secretary is 
participating in the proceeding, or where service on OSHA and the 
Associate Solicitor is otherwise required by these rules.
    (b) The Bureau, if interested in a proceeding, may participate as 
amicus curiae at any time in the proceeding, at the Bureau's 
discretion. At the request of the Bureau, copies of all documents in a 
case must be sent to the Bureau, whether or not it is participating in 
the proceeding.


Sec.  1985.109  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 OSHA's determination to dismiss a complaint without 
completing an investigation pursuant to Sec.  1985.104(e) nor OSHA'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 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. The order will also require 
the respondent to submit appropriate documentation to the Social 
Security Administration (SSA) allocating any back pay award to the 
appropriate calendar quarters.
    (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 reasonable attorney fees, 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 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.

[[Page 18643]]

Sec.  1985.110  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 
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 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 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 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. The order will also require the respondent to 
submit appropriate documentation to the Social Security Administration 
(SSA) allocating any back pay award to the appropriate calendar 
quarters.
    (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 reasonable attorney fees, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1985.111  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 OSHA, orally or in writing, 
of his or her withdrawal. OSHA then will confirm in writing the 
complainant's desire to withdraw and determine whether to approve the 
withdrawal. OSHA 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.  1985.106, 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, but before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
OSHA, the complainant, and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA'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 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

[[Page 18644]]

the settlement will be filed with the ALJ or the ARB, as appropriate.
    (e) Any settlement approved by OSHA, 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.  1985.113.


Sec.  1985.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1985.109 and 1985.110, 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.  1985.113  Judicial enforcement.

    Whenever any person has failed to comply with a final order, 
including one approving a settlement agreement, issued under CFPA, 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. Whenever any person has failed to comply with a 
preliminary order of reinstatement, the person on whose behalf the 
order was issued may file a civil action seeking enforcement of the 
order in the appropriate district court of the United States.


Sec.  1985.114  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.  1985.105(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.
    (b) At the request of either party, the action shall be tried by 
the court with a jury.
    (c) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1985.109. 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;
    (3) Compensation for any special damages sustained as a result of 
the discharge or discrimination; and
    (4) Litigation costs, expert witness fees, and reasonable attorney 
fees.
    (d) Within seven days after filing a complaint in Federal court, a 
complainant must file with OSHA, 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.  1985.115  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 CFPA 
requires.

[FR Doc. 2014-07380 Filed 4-2-14; 8:45 am]
BILLING CODE 4510-26-P