[Federal Register Volume 78, Number 39 (Wednesday, February 27, 2013)]
[Rules and Regulations]
[Pages 13222-13236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04329]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1984
[Docket Number OSHA-2011-0193]
RIN 1218-AC79
Procedures for the Handling of Retaliation Complaints Under
Section 1558 of the Affordable Care Act
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This document provides the interim final regulations governing
the employee protection (whistleblower) provision of section 1558 of
the Affordable Care Act, which added section 18C of the Fair Labor
Standards Act, to provide protections to employees of health insurance
issuers or other employers who may have been subject to retaliation for
reporting potential violations of the law's consumer protections (e.g.,
the prohibition on denials of insurance due to pre-existing conditions)
or affordability assistance provisions (e.g., access to health
insurance premium tax credits). This interim rule establishes
procedures and time frames for the handling of retaliation complaints
under section 18C, including procedures and time frames for employee
complaints to the Occupational Safety and Health Administration (OSHA),
investigations by OSHA, appeals of OSHA determinations to an
administrative law judge (ALJ) for a hearing de novo, hearings by ALJs,
review of ALJ decisions by the Administrative Review Board (ARB)
(acting on behalf of the Secretary of Labor), and judicial review of
the Secretary's final decision.
DATES: This interim final rule is effective on February 27, 2013.
Comments and additional materials must be submitted (post-marked, sent
or received) by April 29, 2013.
[[Page 13223]]
ADDRESSES: You may submit comments and attachments electronically at
http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions online for making electronic submissions.
Fax: If your submissions, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
Mail, hand delivery, express mail, messenger or courier service:
You must submit your comments and attachments to the OSHA Docket
Office, Docket No. OSHA-2011-0193, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue NW., Washington, DC 20210. Deliveries
(hand, express mail, messenger and courier service) are accepted during
the Department of Labor's and Docket Office's normal business hours,
8:15 a.m.-4:45 p.m., ET.
Instructions: All submissions must include the Agency name and the
OSHA docket number for this rulemaking (Docket No. OSHA-2011-0193).
Submissions, including any personal information provided, are placed in
the public docket without change and may be made available online at
http://www.regulations.gov. Therefore, OSHA cautions against submitting
personal information such as social security numbers and birth dates.
Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through the Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
For Press inquiries: Frank Meilinger, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone: (202) 693-1999. This is
not a toll-free number. Email: [email protected].
For technical inquiries: Katelyn Wendell, Program Analyst,
Directorate of Whistleblower Protection Programs, OSHA, U.S. Department
of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC
20210; telephone (202) 693-2199. This is not a toll-free number. Email:
[email protected]. This Federal Register publication is
available in alternative formats. The alternative formats available
are: Large print, electronic file on computer disk (Word Perfect,
ASCII, Mates with Duxbury Braille System), and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
The Patient Protection and Affordable Care Act, Public Law 111-148,
124 Stat. 119, was signed into law on March 23, 2010 and was amended by
the Health Care and Education Reconciliation Act of 2010, Public Law
111-152, 124 Stat. 1029, that was signed into law on March 30, 2010.
The terms ``Affordable Care Act'' or ``Act'' are used in this
rulemaking to refer to the final, amended version of the law. The
Affordable Care Act contains various provisions designed to make health
care more affordable and accountable.
Among the policies to achieve its goals, the Affordable Care Act's
section 1558 amended the Fair Labor Standards Act (FLSA) to add section
18C, 29 U.S.C. 218C (section 18C), which provides protection to
employees against retaliation by an employer for engaging in certain
protected activities.
Under section 18C, an employer may not retaliate against an
employee for receiving a credit under section 36B of the Internal
Revenue Code of 1986 or a cost-sharing reduction (referred to as a
``subsidy'' in section 18C) under section 1402 of Affordable Care Act.
These provisions allow employees to receive tax credits or cost-sharing
reductions while enrolled in a qualified health plan through an
exchange, if their employer does not offer a coverage option that is
affordable and provides a basic level of value (i.e., ``minimum
value''). Certain large employers who fail to offer affordable plans
that meet this minimum value may be assessed a tax penalty if any of
their full-time employees receive a premium tax credit through the
Exchange. Thus, the relationship between the employee's receipt of a
credit and the potential tax penalty imposed on an employer could
create an incentive for an employer to retaliate against an employee.
Section 18C protects employees against such retaliation.
Section 18C also protects employees against retaliation because
they provided or are about to provide to their employer, the Federal
Government, or the attorney general of a State information relating to
any violation of, or any act or omission the employee reasonably
believes to be a violation of, any provision of or amendment made by
title I of the Affordable Care Act; testified or are about to testify
in a proceeding concerning such violation; assisted or participated, or
are about to assist or participate, in such a proceeding; or objected
to, or refused to participate in, any activity, policy, practice, or
assigned task that the employee reasonably believed to be in violation
of any provision of title I of the Act (or amendment), or any order,
rule, regulation, standard, or ban under title I of the Act (or
amendment). Title I includes a range of insurance company
accountability policies such as: The prohibition of lifetime dollar
limits on coverage, the requirement for most plans to cover recommended
preventive services with no cost sharing, and, starting in 2014,
guaranteed availability (also known as guaranteed issue) protections so
that individuals and employers will be able to obtain coverage that
currently can be denied due to a pre-existing condition, and the
prohibition on the use of factors such as health status, medical
history, gender, and industry of employment to set premium rates.
Section 18C became effective on the date the health care law was
enacted, March 23, 2010. On January 1, 2014, the scope of coverage of
section 18C will be expanded by section 2706(b) of the Public Health
Service Act (PHSA), 42 U.S.C. 300gg et seq., as amended by section 1201
of the Affordable Care Act. Section 2706 of the PHSA is titled ``Non-
Discrimination in Health Care'' and provides, in relevant part: ``(b)
INDIVIDUALS.--The provisions of section 1558 of the Patient Protection
and Affordable Care Act (relating to non-discrimination) shall apply
with respect to a group health plan or health insurance issuer offering
group or individual health insurance coverage.'' Thus, the protections
provided by section 18C will extend in 2014 to cover retaliation with
respect to an employee's compensation, terms, conditions or other
privileges of employment by health insurance issuers offering group or
individual health insurance coverage regardless of whether those
issuers are the employer of the person retaliated against. Since the
enactment of the Affordable Care Act, a health insurance issuer is
prohibited from retaliating against its own employees who engage in
activity protected by section 18C. Beginning in 2014, those issuers
will also be prohibited from retaliating against persons who are not
their employees with respect to those persons' compensation, terms,
conditions or other privileges of employment, including their employer-
sponsored health insurance. An employee will be protected from
retaliation (e.g., having that issuer limit or end health insurance
coverage), not only by her employer, but also by the insurance issuer
that provides
[[Page 13224]]
employer-sponsored health insurance coverage to the employee.
These interim rules establish procedures for the handling of
whistleblower complaints under section 18C of the FLSA; these
procedures are very similar to those used for whistleblower complaints
in other industries.
II. Summary of Statutory Procedures
Section 18C(b)(1) adopts the procedures, notifications, burdens of
proof, remedies, and statutes of limitation in the Consumer Product
Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Accordingly,
a covered employee may file a complaint with the Secretary of Labor
(Secretary) within 180 days of the alleged retaliation. Upon receipt of
the complaint, the Secretary must provide written notice to the person
or persons named in the complaint alleged to have violated the Act
(respondent) of the filing of the complaint, the allegations contained
in the complaint, the substance of the evidence supporting the
complaint, and the rights afforded the respondent throughout the
investigation. The Secretary must then, within 60 days of receipt of
the complaint, afford the complainant and respondent an opportunity to
submit a response and meet with the investigator to present statements
from witnesses, and conduct an investigation.
The Secretary may conduct an investigation only if the complainant
has made a prima facie showing that the protected activity was a
contributing factor in the adverse action alleged in the complaint and
the respondent has not demonstrated, through clear and convincing
evidence, that the respondent would have taken the same adverse action
in the absence of that activity.
After investigating a complaint, the Secretary will issue written
findings. If, as a result of the investigation, the Secretary finds
there is reasonable cause to believe that retaliation has occurred, the
Secretary must notify the respondent of those findings, along with a
preliminary order that requires the respondent to, where appropriate:
Take affirmative action to abate the violation; reinstate the
complainant to his or her former position together with the
compensation of that position (including back pay) and restore the
terms, conditions, and privileges associated with his or her
employment; and provide compensatory damages to the complainant, as
well as all costs and expenses (including attorney fees and expert
witness fees) reasonably incurred by the complainant for, or in
connection with, the bringing of the complaint upon which the order was
issued.
The complainant and the respondent then have 30 days after the date
of the Secretary's notification in which to file objections to the
findings and/or preliminary order and request a hearing before an ALJ.
The filing of objections under section 18C of the FLSA will stay any
remedy in the preliminary order except for preliminary reinstatement.
If a hearing before an ALJ is not requested within 30 days, the
preliminary order becomes final and is not subject to judicial review.
If a hearing is held, the statute requires the hearing to be
conducted ``expeditiously.'' The Secretary then has 120 days after the
conclusion of any hearing in which to issue a final order, which may
provide appropriate relief or deny the complaint. Until the Secretary's
final order is issued, the Secretary, the complainant, and the
respondent may enter into a settlement agreement that terminates the
proceeding. Where the Secretary has determined that a violation has
occurred, the Secretary, where appropriate, will assess against the
respondent a sum equal to the total amount of all costs and expenses,
including attorney's and expert witness fees, reasonably incurred by
the complainant for, or in connection with, the bringing of the
complaint upon which the Secretary issued the order. The Secretary also
may award a prevailing respondent a reasonable attorney's fee, not
exceeding $1,000, if the Secretary finds that the complaint is
frivolous or has been brought in bad faith. Within 60 days of the
issuance of the final order, any person adversely affected or aggrieved
by the Secretary's final order may file an appeal with the United
States Court of Appeals for the circuit in which the violation occurred
or the circuit where the complainant resided on the date of the
violation.
The statute permits the employee to seek de novo review of the
complaint by a United States district court in the event that the
Secretary has not issued a final decision within 210 days after the
filing of the complaint, or within 90 days after receiving a written
determination. The court will have jurisdiction over the action without
regard to the amount in controversy, and the case will be tried before
a jury at the request of either party.
Finally, section 18C(b)(2) of the FLSA provides that nothing in
section 18C shall be deemed to diminish the rights, privileges, or
remedies of any employee under any Federal or State law or under any
collective bargaining agreement, and the rights and remedies in section
18C may not be waived by any agreement, policy, form, or condition of
employment.
III. Summary and Discussion of Regulatory Provisions
The regulatory provisions in this part have been written and
organized to be consistent with other whistleblower regulations
promulgated by OSHA to the extent possible within the bounds of the
statutory language of section 18C of the FLSA and 15 U.S.C. 2087(b) of
CPSIA. Responsibility for receiving and investigating complaints under
section 18C has been delegated to the Assistant Secretary for
Occupational Safety and Health. Secretary's Order 1-2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the
Assistant Secretary are conducted by the Office of Administrative Law
Judges, and appeals from decisions by ALJs are decided by the ARB.
Secretary's Order 1-2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010).
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Section 1984.100 Purpose and Scope
This section describes the purpose of the regulations implementing
section 18C of the FLSA and provides an overview of the procedures
covered by these regulations.
Section 1984.101 Definitions
This section includes general definitions for the Affordable Care
Act whistleblower provision codified at section 18C of the FLSA. The
definitions of the terms ``employer,'' ``employee,'' and ``person''
from section 3 of the FLSA, 29 U.S.C. 203, apply to these rules and are
included here.
The FLSA defines ``employer'' as including ``any person acting
directly or indirectly in the interest of an employer in relation to an
employee and includes a public agency, but does not include any labor
organization (other than when acting as an employer) or anyone acting
in the capacity of officer or agent of such labor organization.'' 29
U.S.C. 203(d). The FLSA defines ``person'' to mean ``an individual,
partnership, association, corporation, business trust, legal
representative, or any organized group of persons.'' 29 U.S.C. 203(a).
The FLSA defines ``employee'' to mean ``any individual employed by
an employer.'' 29 U.S.C. 203(e)(1). In the case of an individual
employed by a public agency, the term employee means any individual
employed by the Government of the United States: As a civilian in the
military departments (as defined in section 102 of the U.S. Code at
title 5), in any executive agency (as
[[Page 13225]]
defined in section 105 of such title), in any unit of the judicial
branch of the Government which has positions in the competitive
service, in a nonappropriated fund instrumentality under the
jurisdiction of the Armed Forces, in the Library of Congress, or in the
Government Printing Office. 29 U.S.C. 203(e)(2)(A). An employee
generally also includes any individual employed by the United States
Postal Service or the Postal Regulatory Commission, 29 U.S.C.
203(e)(2)(b); and any individual employed by a State, political
subdivision of a State, or an interstate governmental agency. The
definition of ``employee'' under the FLSA does not include an
individual who is not subject to the civil service laws of the State,
political subdivision, or agency which employs him; and who holds a
public elective office of that State, political subdivision, or agency,
is selected by the holder of such an office to be a member of his
personal staff, is appointed by such an officeholder to serve on a
policymaking level, is an immediate adviser to such an officeholder
with respect to the constitutional or legal powers of his office, or is
an employee in the legislative branch or legislative body of that
State, political subdivision, or agency and is not employed by the
legislative library of such State, political subdivision, or agency. 29
U.S.C. 203(e)(2)(c).
Consistent with the Secretary's interpretation of the term
``employee'' in the other whistleblower statutes administered by OSHA
\1\ and with the Secretary's interpretation of the term ``employee''
under the anti-retaliation provision found at section 15(a)(3) of the
FLSA, 29 U.S.C. 215(a)(3),\2\ the definition of the term ``employee''
in section 1984.101 also includes former employees and applicants for
employment. This interpretation is supported by section 18C's plain
language which prohibits retaliation against ``any employee'' and
provides that ``[a]n employee who believes that he or she has been
discharged or otherwise discriminated against by any employer in
violation of this section'' may file a complaint with the Secretary of
Labor, (Emphasis added). Section 18C's broad protection of ``any
employee'' from discrimination and provision of a cause of action
against ``any employer'' for retaliation makes clear that the parties
need not have a current employment relationship. Section 18C's broad
protections, like the protections in section 15(a)(3), contrast with
the narrower protections of sections 6 and 7 of the FLSA. Sections 6
and 7 provide respectively that an employer must pay at least the
minimum wage to ``each of his employees'' and must pay overtime to
``any of his employees,'' and thus require a current employment
relationship. See 29 U.S.C. 206(a) and (b), 29 U.S.C. 207(a)(1) and
(2). Congress chose to use the broad term ``any'' to modify employee
and employer in Sections 18C(a) and (b), rather than providing more
restrictively that, for example, ``no employer shall discharge or in
any manner discriminate against any of his employees'' or ``an employee
who believes that he or she has been discharged or otherwise
discriminated against by his employer'' may file a complaint with the
Secretary of Labor. The Supreme Court has made clear that ``any'' has
an expansive meaning that does not limit the word it modifies. See,
e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct.
1325, 1332 (2011) (noting that the use of ``any'' in the phrase ``filed
any complaint'' in section 15(a)(3) of the FLSA ``suggests a broad
interpretation that would include an oral complaint''); U.S. v.
Gonzales, 520 U.S. 1, 5 (1997) (``any'' has an expansive meaning, that
is, ``one or some indiscriminately of whatever kind'') (internal
citations omitted). In addition, the explicit inclusion of
reinstatement and preliminary reinstatement (both of which can only be
awarded to former employees) among the remedies available for
whistleblowers under Section 18C confirms that the complainant and the
respondent need not have a current employment relationship in order for
the complainant to have a claim under section 18C. See Dellinger v.
Science Applications Int'l Corp., 649 F.3d at 230 n.2 (section 15(a)(3)
of the FLSA protects former employees); cf. Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) (term ``employees'' in anti-retaliation provision
of Title VII of the Civil Rights Act of 1964 includes former
employees).
---------------------------------------------------------------------------
\1\ See, e.g., 29 CFR 1980.101(g) (defining employee to include
former employees and applicants under the whistleblower provisions
in the Sarbanes-Oxley Act); 29 CFR 1978.101 (Surface Transportation
Assistance Act); 29 CFR 1981.101 (Pipeline Safety Improvement Act);
29 CFR 1982.101(d) (Federal Railroad Safety Act and the National
Transit Systems Security Act); 29 CFR 1983.101(h) (Consumer Product
Safety Improvement Act).
\2\ See Brief for the Secretary of Labor and the Equal
Employment Opportunity Commission as Amicus Curiae, Dellinger v.
Science Applications Int'l Corp., No. 10-1499 (4th Cir. Oct. 15,
2010)(explaining that the phrase ``any employee'' in section
15(a)(3) of the FLSA does not limit an individual's retaliation
claims to her current employer, but rather extends protection to
prospective employees from retaliation for engaging in protected
activity), and Brief of the Secretary of Labor and Equal Employment
Opportunity Commission as Amicus Curiae, Dellinger v. Science
Applications Int'l Corp., No. 10-1499 (4th Cir. Sept. 9, 2011)
(same); but see Dellinger v. Science Applications Int'l Corp., 649
F.3d 226, 229-31 & n.2 (4th Cir. 2011) (accepting that former
employees are protected from retaliation under section 15(a)(3) of
the FLSA but holding that applicants for employment are not).
---------------------------------------------------------------------------
Section 1984.102 Obligations and Prohibited Acts
This section describes the activities that are protected under
section 18C of the FLSA, and the conduct that is prohibited in response
to any protected activities. Section 18C(a)(1) protects any employee
from retaliation ``because the employee received a credit under section
36B of the Internal Revenue Code of 1986 or a subsidy under section
1402 of this Act.'' The reference to ``a subsidy under section 1402
this Act'' in section 18C(a)(1) refers to receipt of a cost-sharing
reduction under section 1402 of the Affordable Care Act. 42 U.S.C.
18071.
Under section 18C(a)(2), an employer may not retaliate against an
employee because the employee ``provided, caused to be provided, or is
about to provide or cause to be provided to the employer, the Federal
Government, or the attorney general of a State information relating to
any violation of, or any act or omission the employee reasonably
believes to be a violation of, any provision of this title (or an
amendment made by this title).'' Section 18C also protects employees
who testify, assist or participate in proceedings concerning such
violations. Sections 18C(a)(3) and (4), 29 U.S.C. 218C(a)(3) and (4).
Finally, section 18C(a)(5) prohibits retaliation because an employee
``objected to, or refused to participate in, any activity, policy,
practice, or assigned task that the employee (or other such person)
reasonably believed to be in violation of any provision of this title
(or amendment), or any order, rule, regulation, standard, or ban under
this title (or amendment).'' References to ``this title'' in section
18C(a)(2) and (5) refer to Title I of the Affordable Care Act. This
includes health insurance reforms such as providing guaranteed
availability (also known as guaranteed issue) protections so that
individuals and employers will be able to obtain coverage when it
currently can be denied, continuing current guaranteed renewability
protections, prohibiting the use of factors such as health status,
medical history, gender, and industry of employment to set premium
rates, limiting age rating, and prohibiting issuers from dividing up
their insurance pools within markets.
[[Page 13226]]
In order to have a ``reasonable belief'' under sections 18C(a)(2)
and (5), a complainant must have both a subjective, good faith belief
and an objectively reasonable belief that the complained-of conduct
violates one of the listed categories of law. See Sylvester v. Parexel
Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25,
2011) (discussing the reasonable belief standard under analogous
language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C.
1514A). The requirement that the complainant have a subjective, good
faith belief is satisfied so long as the complainant actually believed
that the conduct complained of violated the relevant law. See id. The
``reasonableness'' of a complainant's belief is typically determined
``based on the knowledge available to a reasonable person in the same
factual circumstances with the same training and experience as the
aggrieved employee.'' Id. at *12 (internal quotation marks and citation
omitted). However, the complainant need not show that the conduct
complained of constituted an actual violation of law. Pursuant to this
standard, an employee's whistleblower activity is protected where it is
based on a reasonable, but mistaken, belief that a violation of the
relevant law has occurred. Id. at *13.
Section 1984.103 Filing of Retaliation Complaint
This section explains the requirements for filing a retaliation
complaint under section 18C. To be timely, a complaint must be filed
within 180 days of when the alleged violation occurs. Under Delaware
State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to
be when the retaliatory decision has been both made and communicated to
the complainant. In other words, the limitations period commences once
the employee is aware or reasonably should be aware of the employer's
decision. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc.,
249 F.3d 557, 561-62 (6th Cir. 2001). However, the time for filing a
complaint may be tolled for reasons warranted by applicable case law.
Complaints filed under section 18C of the FLSA need not be in any
particular form. They may be either oral or in writing. If the
complainant is unable to file the complaint in English, OSHA will
accept the complaint in any language. With the consent of the employee,
complaints may be filed by any person on the employee's behalf.
OSHA notes that a complaint of retaliation filed with OSHA under
the Affordable Care Act is not a formal document and need not conform
to the pleading standards for complaints filed in federal district
court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v.
Parexel Int'l, Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May
26, 2011) (holding whistleblower complaints filed with OSHA under
analogous provisions in the Sarbanes-Oxley Act need not conform to
federal court pleading standards). Rather, the complaint filed with
OSHA under this section simply alerts the Agency to the existence of
the alleged retaliation and the complainant's desire that the Agency
investigate the complaint. Upon the filing of a complaint with OSHA,
the Assistant Secretary is to determine whether ``the complaint,
supplemented as appropriate by interviews of the complainant'' alleges
``the existence of facts and evidence to make a prima facie showing.''
29 CFR 1984.104(e). As explained in section 1984.104(e), if the
complaint, supplemented as appropriate, contains a prima facie
allegation, and the respondent does not show clear and convincing
evidence that it would have taken the same action in the absence of the
alleged protected activity, OSHA conducts an investigation to determine
whether there is reasonable cause to believe that retaliation has
occurred. See 15 U.S.C. 2087(b)(2), 29 CFR 1984.104(e).
Section 1984.104 Investigation
This section describes the procedures that apply to the
investigation of complaints under section 18C. Paragraph (a) of this
section outlines the procedures for notifying the parties and
appropriate Federal agencies of the complaint and notifying the
respondent of its rights under these regulations. Paragraph (b)
describes the procedures for the respondent to submit its response to
the complaint. Paragraph (c) specifies that throughout the
investigation the Agency will provide to the complainant (or the
complainant's legal counsel if the complainant is represented by
counsel) a copy of respondent's submissions to the Agency that are
responsive to the complainant's whistleblower complaint and the
complainant will have an opportunity to respond to those submissions.
Before providing such materials to the complainant, the Agency will
redact them in accordance with the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality laws. Paragraph (d) of this
section discusses confidentiality of information provided during
investigations. Paragraph (e) of this section sets forth the applicable
burdens of proof. Paragraph (f) describes the procedures the Assistant
Secretary will follow prior to the issuance of findings and a
preliminary order when the Assistant Secretary has reasonable cause to
believe that a violation has occurred.
Section 18C of the FLSA incorporates the burdens of proof set forth
in CPSIA. 15 U.S.C. 2087(b). That statute requires that a complainant
make an initial prima facie showing that protected activity was ``a
contributing factor'' in the adverse action alleged in the complaint,
i.e., that the protected activity, alone or in combination with other
factors, affected in some way the outcome of the employer's decision.
The complainant will be considered to have met the required burden if
the complaint on its face, supplemented as appropriate through
interviews of the complainant, alleges the existence of facts and
either direct or circumstantial evidence to meet the required showing.
The complainant's burden may be satisfied, for example, if he or she
shows that the adverse action took place shortly after protected
activity, giving rise to the inference that it was a contributing
factor in the adverse action.
If the complainant does not make the required prima facie showing,
the investigation must be discontinued and the complaint dismissed. See
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the Energy Reorganization
Act of 1974 (ERA), which is the same framework now applicable to
section 18C of the FLSA, serves a ``gatekeeping function'' that
``stem[s] frivolous complaints''). Even in cases where the complainant
successfully makes a prima facie showing, the investigation must be
discontinued if the respondent demonstrates, by clear and convincing
evidence, that it would have taken the same adverse action in the
absence of the protected activity. Thus, OSHA must dismiss a complaint
under section 18C of the FLSA and not investigate (or cease
investigating) if either: (1) The complainant fails to meet the prima
facie showing that protected activity was a contributing factor in the
adverse action; or (2) the respondent rebuts that showing by clear and
convincing evidence that it would have taken the same adverse action
absent the protected activity.
Assuming that an investigation proceeds beyond the gatekeeping
phase, the statutory burdens of proof require an employee to prove that
the alleged protected activity was a ``contributing factor'' in the
alleged adverse action. If the employee proves that the alleged
[[Page 13227]]
protected activity was a contributing factor in the adverse action, the
respondent, to escape liability, must prove by ``clear and convincing
evidence'' that it would have taken the same action in the absence of
the protected activity. A contributing factor is ``any factor which,
alone or in connection with other factors, tends to affect in any way
the outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137,
1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation
omitted) (discussing the Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)). In proving that protected activity was a contributing
factor in the adverse action, `` `a complainant need not necessarily
prove that the respondent's articulated reason was a pretext in order
to prevail,' '' because a complainant alternatively can prevail by
showing that the respondent's `` `reason, while true, is only one of
the reasons for its conduct,' '' and that another reason was the
complainant's protected activity. See Klopfenstein v. PCC Flow Techs.
Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31,
2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004)) (discussing contributing factor test under the Sarbanes-
Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. Admin.
Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th
Cir. 2010).
The statutory burdens of proof do not address the evidentiary
standard that applies to a complainant's proof that protected activity
was a contributing factor in an adverse action. Rather, they simply
provide that the Secretary may find a violation only ``if the
complainant demonstrates'' that protected activity was a contributing
factor in the alleged adverse action. See 15 U.S.C. 2087(b)(2)(B)(iii).
It is the Secretary's position that the complainant must prove by a
``preponderance of the evidence'' that his or her protected activity
contributed to the adverse action; otherwise the burden never shifts to
the respondent to establish its defense by ``clear and convincing
evidence.'' See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475
n.1 (5th Cir. 2008) (``The term `demonstrates' [under identical
language in another whistleblower provision] means to prove by a
preponderance of the evidence.''). Once the complainant establishes
that the protected activity was a contributing factor in the adverse
action, the respondent can escape liability only by proving by clear
and convincing evidence that it would have taken the same action even
in the absence of the prohibited rationale. The ``clear and convincing
evidence'' standard is a higher burden of proof than a ``preponderance
of the evidence'' standard.
Section 18C also incorporates the authorities in the FLSA sections
9 and 11, 29 U.S.C. 209 and 211, to issue subpoenas and conduct
investigations. Such authorities under section 18C are delegated and
assigned to the Assistant Secretary for Occupational Safety and Health.
See Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25,
2012).
Section 1984.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of a complaint, written findings regarding whether or not
there is reasonable cause to believe that the complaint has merit. If
the findings are that there is reasonable cause to believe that the
complaint has merit, the Assistant Secretary will order appropriate
relief, including preliminary reinstatement, affirmative action to
abate the violation, back pay with interest, and compensatory damages.
The findings and, where appropriate, preliminary order, advise the
parties of their right to file objections to the findings of the
Assistant Secretary and to request a hearing. The findings and, where
appropriate, preliminary order, also advise the respondent of the right
to request an award of attorney's fees not exceeding $1,000 from the
ALJ, regardless of whether the respondent has filed objections, if the
respondent alleges that the complaint was frivolous or brought in bad
faith. If no objections are filed within 30 days of receipt of the
findings, the findings and any preliminary order of the Assistant
Secretary become the final decision and order of the Secretary. If
objections are timely filed, any order of preliminary reinstatement
will take effect, but the remaining provisions of the order will not
take effect until administrative proceedings are completed.
In ordering interest on back pay under section 18C, the Secretary
has determined that interest due will be computed by compounding daily
the Internal Revenue Service interest rate for the underpayment of
taxes, which under 26 U.S.C. 6621 is generally the Federal short-term
rate plus three percentage points. The Secretary believes that daily
compounding of interest achieves the make-whole purpose of a back pay
award. Daily compounding of interest has become the norm in private
lending and recently was found to be the most appropriate method of
calculating interest on back pay by the National Labor Relations Board.
See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber,
Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No.
8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010). Additionally,
interest on tax underpayments under the Internal Revenue Code, 26
U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).
In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he or she received prior to his termination, but not actually
return to work. Such ``economic reinstatement'' is akin to an order for
front pay and frequently is employed in cases arising under section
105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
815(c), which protects miners from retaliation. See, e.g., Sec'y of
Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (ALJ June 26, 2001). Front pay has been recognized as a
possible remedy in cases under the whistleblower statutes enforced by
OSHA in circumstances where reinstatement would not be appropriate.
See, e.g., Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-039, 2003 WL
21499864, at *10 (ARB June 30, 2003) (under environmental whistleblower
statutes, ``front pay may be an appropriate substitute when the parties
prove the impossibility of a productive and amicable working
relationship, or the company no longer has a position for which the
complainant is qualified''); Hobby v. Georgia Power Co., ARB No. 98-
166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), aff'd sub nom. Hobby v.
U.S. Dep't of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002)
(unpublished) (noting circumstances where front pay may be available in
lieu of reinstatement but ordering reinstatement); Doyle v. Hydro
Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 1996 WL 518592, at *6
(ARB Sept. 6, 1996) (under ERA, front pay appropriate where employer
had eliminated the employee's position); Michaud v. BSP Transport,
Inc., ARB Nos. 97-113, 1997 WL 626849, at *4 (ARB Oct. 9, 1997) (under
the Surface Transportation Assistance Act, 49 U.S.C. 31105, front pay
appropriate where employee was unable to work due to major depression
resulting from the retaliation); Brown v. Lockheed Martin Corp., ALJ
No. 2008-SOX-49,
[[Page 13228]]
2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while
reinstatement is the ``presumptive remedy'' under Sarbanes-Oxley, front
pay may be awarded as a substitute when reinstatement is
inappropriate). Congress intended that employees be preliminarily
reinstated to their positions if OSHA finds reasonable cause to believe
that they were discharged in violation of section 18C of the FLSA. When
a violation is found, the norm is for OSHA to order immediate
preliminary reinstatement. Neither an employer nor an employee has a
statutory right to choose economic reinstatement. Rather, economic
reinstatement is designed to accommodate situations in which evidence
establishes to OSHA's satisfaction that reinstatement is inadvisable
for some reason, notwithstanding the employer's retaliatory discharge
of the employee. In such situations, actual reinstatement might be
delayed until after the administrative adjudication is completed as
long as the employee continues to receive his or her pay and benefits
and is not otherwise disadvantaged by a delay in reinstatement. There
is no statutory basis for allowing the employer to recover the costs of
economically reinstating an employee should the employer ultimately
prevail in the whistleblower adjudication.
Subpart B--Litigation
Section 1984.106 Objections to the Findings and the Preliminary Order
and Requests for a Hearing
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, within 30 days of
receipt of the findings. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The
filing of objections also is considered a request for a hearing before
an ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards, the failure to serve copies of the objections on the other
parties of record does not affect the ALJ's jurisdiction to hear and
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31,
2005).
The timely filing of objections stays all provisions of the
preliminary order, except for the portion requiring reinstatement. A
respondent may file a motion to stay OSHA's preliminary order of
reinstatement with the Office of Administrative Law Judges. However,
such a motion will be granted only based on exceptional circumstances.
The Secretary believes that a stay of the Assistant Secretary's
preliminary order of reinstatement under section 18C of the FLSA would
be appropriate only where the respondent can establish the necessary
criteria for equitable injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a balancing of possible harms to
the parties, and the public interest favors a stay. If no timely
objection to OSHA's findings and/or preliminary order is filed, then
OSHA's findings and/or preliminary order become the final decision of
the Secretary not subject to judicial review.
Section 1984.107 Hearings
This section adopts the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges
at 29 CFR part 18 subpart A. It specifically provides for hearings to
be consolidated if both the complainant and respondent object to the
findings and/or order of the Assistant Secretary. This section provides
that the hearing is to commence expeditiously, except upon a showing of
good cause or unless otherwise agreed to by the parties. Hearings will
be conducted de novo on the record. As noted in this section, formal
rules of evidence will not apply, but rules or principles designed to
assure production of the most probative evidence will be applied. The
ALJ may exclude evidence that is immaterial, irrelevant, or unduly
repetitious.
Section 1984.108 Role of Federal Agencies
The Assistant Secretary, at his or her discretion, may participate
as a party or amicus curiae at any time in the administrative
proceedings under section 18C of the FLSA. For example, the Assistant
Secretary may exercise his or her discretion to prosecute the case in
the administrative proceeding before an ALJ; petition for review of a
decision of an ALJ, including a decision based on a settlement
agreement between the complainant and the respondent, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the ARB proceeding.
Although OSHA anticipates that ordinarily the Assistant Secretary will
not participate, the Assistant Secretary may choose to do so in
appropriate cases, such as cases involving important or novel legal
issues, large numbers of employees, alleged violations that appear
egregious, or where the interests of justice might require
participation by the Assistant Secretary. The Internal Revenue Service
of the United States Department of the Treasury, the United States
Department of Health and Human Services, and the Employee Benefits
Security Administration of the United States Department of Labor, if
interested in a proceeding, also may participate as amicus curiae at
any time in the proceedings.
Section 1984.109 Decision and Orders of the Administrative Law Judge
This section sets forth the requirements for the content of the
decision and order of the ALJ, and includes the standard for finding a
violation under section 18C. Paragraph (c) of this section further
provides that the Assistant Secretary's determination to dismiss the
complaint without an investigation or without a complete investigation
under section 1984.104 is not subject to review. Thus, section
1984.109(c) clarifies that the Assistant Secretary's determinations on
whether to proceed with an investigation under section 18C and whether
to make particular investigative findings are discretionary decisions
not subject to review by the ALJ. The ALJ hears cases de novo and,
therefore, as a general matter, may not remand cases to the Assistant
Secretary to conduct an investigation or make further factual findings.
A full discussion of the burdens of proof used by the Department of
Labor to resolve whistleblower cases under this part is described above
in the discussion of section 1984.104. Paragraph (d) notes the remedies
that the ALJ may order under section 18C and, as discussed under
section 1984.105 above, provides that interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily. Paragraph (e)
requires that the ALJ's decision be served on all parties to the
proceeding, the Assistant Secretary, and the U.S. Department of Labor's
Associate Solicitor for Fair Labor Standards. Paragraph (e) also
provides that any ALJ decision requiring reinstatement or lifting an
order of reinstatement by the Assistant Secretary will be effective
immediately upon receipt of the decision by the respondent. All other
[[Page 13229]]
portions of the ALJ's order will be effective 14 days after the date of
the decision unless a timely petition for review has been filed with
the ARB. If no timely petition for review is filed with the ARB, the
decision of the ALJ becomes the final decision of the Secretary and is
not subject to judicial review.
Section 1984.110 Decision and Orders of the Administrative Review Board
Upon the issuance of the ALJ's decision, the parties have 14 days
within which to petition the ARB for review of that decision. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal is considered the date of filing of the petition; if the
petition is filed in person, by hand delivery or other means, the
petition is considered filed upon receipt.
The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections may
be deemed waived. The ARB has 30 days to decide whether to grant the
petition for review. If the ARB does not grant the petition, the
decision of the ALJ becomes the final decision of the Secretary. If a
timely petition for review is filed with the ARB, any relief ordered by
the ALJ, except for that portion ordering reinstatement, is inoperative
while the matter is pending before the ARB. When the ARB accepts a
petition for review, the ALJ's factual determinations will be reviewed
under the substantial evidence standard.
This section also provides that, based on exceptional
circumstances, the ARB may grant a motion to stay an ALJ's preliminary
order of reinstatement under section 18C, which otherwise would be
effective, while review is conducted by the ARB. The Secretary believes
that a stay of an ALJ's preliminary order of reinstatement under
section 18C would be appropriate only where the respondent can
establish the necessary criteria for equitable injunctive relief, i.e.,
irreparable injury, likelihood of success on the merits, a balancing of
possible harms to the parties, and the public interest favors a stay.
If the ARB concludes that the respondent has violated the law, it
will issue a final order providing relief to the complainant. The final
order will require, where appropriate: Affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney's and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. If the ARB determines that the respondent has not
violated the law, an order will be issued denying the complaint. If,
upon the request of the respondent, the ARB determines that a complaint
was frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney's fee, not exceeding $1,000.
Subpart C--Miscellaneous Provisions.
Section 1984.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures and time periods for
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and the withdrawal of objections to
findings and/or orders. It permits complainants to withdraw their
complaints orally and provides that, in such circumstances, OSHA will
confirm a complainant's desire to withdraw in writing. It also provides
for approval of settlements at the investigative and adjudicative
stages of the case.
Section 1984.112 Judicial Review
This section describes the statutory provisions of CPSIA,
incorporated into section 18C of the FLSA, for judicial review of
decisions of the Secretary and requires, in cases where judicial review
is sought, the ARB to submit the record of proceedings to the
appropriate court pursuant to the rules of such court.
Section 1984.113 Judicial Enforcement
This section describes the Secretary's authority under section 18C
to obtain judicial enforcement of orders and the terms of settlement
agreements. Section 18C incorporates the procedures, notifications,
burdens of proof, remedies, and statutes of limitations set forth in
CPSIA, 15 U.S.C. 2087(b), which expressly authorizes district courts to
enforce orders, including preliminary orders of reinstatement, issued
by the Secretary. See 15 U.S.C. 2087(b)(6) (``Whenever any person has
failed to comply with an order issued under paragraph (3), the
Secretary may file a civil action in the United States district court
for the district in which the violation was found to occur, or in the
United States district court for the District of Columbia, to enforce
such order.''). Specifically, reinstatement orders issued at the close
of OSHA's investigation are immediately enforceable in district court
pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 18C of the FLSA
provides, through CPSIA, that the Secretary shall order the person who
has committed a violation to reinstate the complainant to his or her
former position. See 15 U.S.C. 2087(b)(3)(B)(ii). Section 18C of the
FLSA also provides, through CPSIA, that the Secretary shall accompany
any reasonable cause finding that a violation occurred with a
preliminary order containing the relief prescribed by subsection
(b)(3)(B) of CPSIA, which includes reinstatement where appropriate, and
that any preliminary order of reinstatement shall not be stayed upon
the filing of objections. See 15 U.S.C. 2087(b)(2)(A) (``The filing of
such objections shall not operate to stay any reinstatement remedy
contained in the preliminary order.''). Thus, under section 18C of the
FLSA enforceable orders include preliminary orders that contain the
relief of reinstatement prescribed by 15 U.S.C. 2087(b)(3)(B). This
statutory interpretation is consistent with the Secretary's
interpretation of similar language in the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century and Sarbanes-Oxley. See
Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis
v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v.
Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010);
but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir.
2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D.
Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir.
Feb. 20, 2008)). Also through application of CPSIA, section 18C of the
FLSA permits the person on whose behalf the order was issued to obtain
judicial enforcement of the order. See 15 U.S.C. 2087(b)(7).
Section 1984.114 District Court Jurisdiction of Retaliation Complaints
This section sets forth provisions that allow a complainant to
bring an original de novo action in district court, alleging the same
allegations contained in the complaint filed with OSHA, under certain
circumstances. By incorporating the procedures, notifications, burdens
of proof, remedies, and statutes of limitations set forth in CPSIA, 15
U.S.C.
[[Page 13230]]
2087(b), section 18C permits a complainant to file an action for de
novo review in the appropriate district court if there has been no
final decision of the Secretary within 210 days of the filing of the
complaint, or within 90 days after receiving a written determination.
``Written determination'' refers to the Assistant Secretary's written
findings issued at the close of OSHA's investigation under section
1984.105(a). 15 U.S.C. 2087(b)(4). The Secretary's final decision is
generally the decision of the ARB issued under section 1984.110. In
other words, a complainant may file an action for de novo review in the
appropriate district court in either of the following two
circumstances: (1) A complainant may file a de novo action in district
court within 90 days of receiving the Assistant Secretary's written
findings issued under section 1984.105(a), or (2) a complainant may
file a de novo action in district court if more than 210 days have
passed since the filing of the complaint and the Secretary has not
issued a final decision. The plain language of 15 U.S.C. 2087(b)(4), by
distinguishing between actions that can be brought if the Secretary has
not issued a ``final decision'' within 210 days and actions that can be
brought within 90 days after a ``written determination,'' supports
allowing de novo actions in district court under either of the
circumstances described above. However, it is the Secretary's position
that complainants may not initiate an action in federal court after the
Secretary issues a final decision, even if the date of the final
decision is more than 210 days after the filing of the complaint or
within 90 days of the complainant's receipt of the Assistant
Secretary's written findings. The purpose of the ``kick-out'' provision
is to aid the complainant in receiving a prompt decision. That goal is
not implicated in a situation where the complainant already has
received a final decision from the Secretary. In addition, permitting
the complainant to file a new case in district court in such
circumstances could conflict with the parties' rights to seek judicial
review of the Secretary's final decision in the court of appeals. See
15 U.S.C. 2087(b)(5)(B) (providing that an order with respect to which
review could have been obtained in [the court of appeals] shall not be
subject to judicial review in any criminal or other civil proceeding).
Under section 18C of the FLSA, the Assistant Secretary's written
findings become the final order of the Secretary, not subject to
judicial review, if no objection is filed within 30 days. See 15 U.S.C.
2087(b)(2). Thus, a complainant may need to file timely objections to
the Assistant Secretary's findings in order to preserve the right to
file an action in district court.
This section also requires that, within seven days after filing a
complaint in district court, a complainant must provide a file-stamped
copy of the complaint to the Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is pending. A copy of the complaint
also must be provided to the OSHA official who issued the findings and/
or preliminary order, the Assistant Secretary, and the U.S. Department
of Labor's Associate Solicitor for Fair Labor Standards. This provision
is necessary to notify the Agency that the complainant has opted to
file a complaint in district court. This provision is not a substitute
for the complainant's compliance with the requirements for service of
process of the district court complaint contained in the Federal Rules
of Civil Procedure and the local rules of the district court where the
complaint is filed. The section also incorporates the statutory
provisions which allow for a jury trial at the request of either party
in a district court action, and which specify the remedies and burdens
of proof in a district court action.
Section 1984.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and notice to the parties, waive any rule as justice or the
administration of section 18C of the FLSA requires.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, section 1984.103) which was previously reviewed as a
statutory requirement of section 18C of the FLSA, 29 U.S.C. 218C, and
approved for use by the Office of Management and Budget (``OMB''), and
was assigned OMB control number 1218-0236 under the provisions of the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163
(1995). A non-material change has been submitted to OMB to include the
regulatory citation.
V. Administrative Procedure Act
The notice and comment rulemaking procedures of section 553 of the
Administrative Procedure Act (APA) do not apply ``to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency
procedure, practice and interpretation within the meaning of that
section. Therefore, publication in the Federal Register of a notice of
proposed rulemaking and request for comments are not required for these
regulations, which provide the procedures for the handling of
retaliation complaints. Although this is a procedural rule not subject
to the notice and comment procedures of the APA, the Agency is
providing persons interested in this interim final rule 60 days to
submit comments. A final rule will be published after the Agency
receives and reviews the public's comments.
Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. The Assistant Secretary also finds good cause to
provide an immediate effective date for this interim final rule. It is
in the public interest that the rule be effective immediately so that
parties may know what procedures are applicable to pending cases.
VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Office of Management and Budget has concluded that this rule is
a ``significant regulatory action'' within the meaning of section
3(f)(4) of Executive Order 12866. Executive Order 12866, reaffirmed by
Executive Order 13563, requires a full economic impact analysis only
for ``economically significant'' rules, which are defined in section
3(f)(1) of Executive Order 12866 as rules that may ``[h]ave an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities.'' Because the rule is
procedural and interpretative in nature, it is expected to have a
negligible economic impact. Therefore, no economic impact analysis has
been prepared. For the same reason, the rule does not require a section
202 statement under the Unfunded Mandates Reform Act of 1995. 2 U.S.C.
1531 et seq. Finally, this rule does not have ``federalism
implications.'' The rule does not have ``substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government'' and
[[Page 13231]]
therefore is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation simply implements procedures necessitated by enactment
of section 18C of the FLSA. Furthermore, no certification to this
effect is required and no regulatory flexibility analysis is required
because no proposed rule has been issued.
List of Subjects in 29 CFR Part 1984
Administrative practice and procedure, Employment, Health care,
Investigations, Reporting and recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under the direction and control of David
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC, on February 13, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble, 29 CFR part
1984 is added to read as follows:
PART 1984--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 1558 OF THE AFFORDABLE CARE ACT
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1984.100 Purpose and scope.
1984.101 Definitions.
1984.102 Obligations and prohibited acts.
1984.103 Filing of retaliation complaint.
1984.104 Investigation.
1984.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1984.106 Objections to the findings and the preliminary order and
requests for a hearing.
1984.107 Hearings.
1984.108 Role of Federal agencies.
1984.109 Decision and orders of the administrative law judge.
1984.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1984.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1984.112 Judicial review.
1984.113 Judicial enforcement.
1984.114 District court jurisdiction of retaliation complaints.
1984.115 Special circumstances; waiver of rules.
Authority: 29 U.S.C. 218C; Secretary's Order 1-2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-2010 (Jan.
15, 2010), 75 FR 3924 (Jan. 25, 2010).
Subpart A--Complaints, Investigations, Findings and Preliminary
Orders
Sec. 1984.100 Purpose and scope.
(a) This part implements procedures under section 1558 of the
Patient Protection and Affordable Care Act, Public Law 111-148, 124
Stat. 119, which was signed into law on March 23, 2010 and was amended
by the Health Care and Education Reconciliation Act of 2010, Public Law
111-152, 124 Stat. 1029, signed into law on March 30, 2010. The terms
``Affordable Care Act'' or ``the Act'' are used in this part to refer
to the final, amended version of the law. Section 1558 of the Act
amended the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) by
adding new section 18C. 29 U.S.C. 218C. Section 18C of the FLSA
provides protection for an employee from retaliation because the
employee has received a credit under section 36B of the Internal
Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction
(referred to as a ``subsidy'' in section 18C) under the Affordable Care
Act section 1402, 42 U.S.C. 18071, or because the employee has engaged
in protected activity pertaining to title I of the Affordable Care Act
or any amendment made by title I of the Affordable Care Act.
(b) This part establishes procedures under section 18C of the FLSA
for the expeditious handling of retaliation complaints filed by
employees, or by persons acting on their behalf. These rules, together
with those codified at 29 CFR part 18, set forth the procedures under
section 18C of the FLSA for submission of complaints, investigations,
issuance of findings and preliminary orders, objections to findings and
orders, litigation before administrative law judges (ALJs), post-
hearing administrative review, and withdrawals and settlements.
Sec. 1984.101 Definitions.
As used in this part:
(a) Affordable Care Act or ``the Act'' means The Patient Protection
and Affordable Care Act, Public Law 111-148, 124 Stat. 119 (Mar. 23,
2010), as amended by the Health Care and Education Reconciliation Act
of 2010, Public Law 111-152.
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under section 18C of the FLSA.
(c) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(d) Complainant means the employee who filed an FLSA section 18C
complaint or on whose behalf a complaint was filed.
(e)(1) Employee means any individual employed by an employer. In
the case of an individual employed by a public agency, the term
employee means any individual employed by the Government of the United
States: As a civilian in the military departments (as defined in 5
U.S.C. 102), in any executive agency (as defined in 5 U.S.C. 105), in
any unit of the judicial branch of the Government which has positions
in the competitive service, in a nonappropriated fund instrumentality
under the jurisdiction of the Armed Forces, in the Library of Congress,
or in the Government Printing Office. The term employee also means any
individual employed by the United States Postal Service or the Postal
Regulatory Commission; and any individual employed by a State,
political subdivision of a State, or an interstate governmental agency,
other than an individual who is not subject to the civil service laws
of the State, political subdivision, or agency which employs him; and
who holds a public elective office of that State, political
subdivision, or agency, is selected by the holder of such an office to
be a member of his personal staff, is appointed by such an officeholder
to serve on a policymaking level, is an immediate adviser to such an
officeholder with respect to the constitutional or legal powers of his
office, or is an employee in the legislative branch or legislative body
of that State, political subdivision, or agency and is not employed by
the legislative library of such State, political subdivision, or
agency.
(2) The term employee does not include:
(i) Any individual who volunteers to perform services for a public
agency which is a State, a political subdivision of a State, or an
interstate governmental agency, if the individual receives no
compensation or is paid expenses, reasonable benefits, or a nominal fee
to perform the services for which the individual volunteered--and such
services are not the same type of services which the individual is
employed to perform for such public agency;
[[Page 13232]]
(ii) Any employee of a public agency which is a State, political
subdivision of a State, or an interstate governmental agency that
volunteers to perform services for any other State, political
subdivision, or interstate governmental agency, including a State,
political subdivision or agency with which the employing State,
political subdivision, or agency has a mutual aid agreement; or
(iii) Any individual who volunteers their services solely for
humanitarian purposes to private non-profit food banks and who receive
groceries from the food banks.
(3) The term employee includes former employees and applicants for
employment.
(f) Employer includes any person acting directly or indirectly in
the interest of an employer in relation to an employee and includes a
public agency, but does not include any labor organization (other than
when acting as an employer) or anyone acting in the capacity of officer
or agent of such labor organization.
(g) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(h) Person means an individual, partnership, association,
corporation, business trust, legal representative, or any organized
group of persons.
(i) Respondent means the employer named in the complaint who is
alleged to have violated the Act.
(j) Secretary means the Secretary of Labor or person to whom
authority under the Affordable Care Act has been delegated.
(k) Any future statutory amendments that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1984.102 Obligations and prohibited acts.
(a) No employer may discharge or otherwise retaliate against,
including, but not limited to, intimidating, threatening, restraining,
coercing, blacklisting or disciplining, any employee with respect to
the employee's compensation, terms, conditions, or privileges of
employment because the employee (or an individual acting at the request
of the employee), has engaged in any of the activities specified in
paragraphs (b)(1) through (5) of this section.
(b) An employee is protected against retaliation because the
employee (or an individual acting at the request of the employee) has:
(1) Received a credit under section 36B of the Internal Revenue
Code of 1986, 26 U.S.C. 36B, or a subsidy under section 1402 of the
Affordable Care Act, 42 U.S.C. 18071;
(2) Provided, caused to be provided, or is about to provide or
cause to be provided to the employer, the Federal Government, or the
attorney general of a State information relating to any violation of,
or any act or omission the employee reasonably believes to be a
violation of, any provision of title I of the Affordable Care Act (or
an amendment made by title I of the Affordable Care Act);
(3) Testified or is about to testify in a proceeding concerning
such violation;
(4) Assisted or participated, or is about to assist or participate,
in such a proceeding; or
(5) Objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any provision of
title I of the Affordable Care Act (or amendment), or any order, rule,
regulation, standard, or ban under title I of the Affordable Care Act
(or amendment).
Sec. 1984.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been
retaliated against in violation of section 18C of the FLSA may file, or
have filed by any person on the employee's behalf, a complaint alleging
such retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If the complainant is unable to file the
complaint in English, OSHA will accept the complaint in any language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the employee resides or was employed, but may be filed with any
OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days after an alleged violation of
section 18C of the FLSA occurs, any employee who believes that he or
she has been retaliated against in violation of that section may file,
or have filed by any person on the employee's behalf, a complaint
alleging such retaliation. The date of the postmark, facsimile
transmittal, electronic communication transmittal, telephone call,
hand-delivery, delivery to a third-party commercial carrier, or in-
person filing at an OSHA office will be considered the date of filing.
The time for filing a complaint may be tolled for reasons warranted by
applicable case law.
Sec. 1984.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the respondent of the filing of the
complaint, of the allegations contained in the complaint, and of the
substance of the evidence supporting the complaint. Such materials will
be redacted, if necessary, in accordance with the Privacy Act of 1974,
5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant
Secretary will also notify the respondent of its rights under
paragraphs (b) and (f) of this section and paragraph (e) of Sec.
1984.110. The Assistant Secretary will provide an unredacted copy of
these same materials to the complainant (or complainant's legal counsel
if complainant is represented by counsel) and to the appropriate office
of the Federal agency charged with the administration of the general
provisions of the Affordable Care Act under which the complaint is
filed: Either the Internal Revenue Service of the United States
Department of the Treasury (IRS), the United States Department of
Health and Human Services (HHS), or the Employee Benefits Security
Administration of the United States Department of Labor (EBSA).
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
and the complainant each may submit to the Assistant Secretary a
written statement and any affidavits or documents substantiating its
position. Within the same 20 days, the respondent and the complainant
each may request a meeting with the Assistant Secretary to present its
position.
(c) Throughout the investigation, the Agency will provide to the
complainant (or the complainant's legal counsel if complainant is
represented by counsel) a copy of all of respondent's submissions to
the Agency that are responsive to the complainant's whistleblower
complaint. Before providing such materials to the complainant, the
Agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The Agency will also provide the complainant with an opportunity to
respond to such submissions.
(d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential
[[Page 13233]]
basis, other than the complainant, in accordance with part 70 of this
title.
(e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that protected activity was a contributing
factor in the adverse action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity;
(ii) The respondent knew or suspected that the employee engaged in
the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the adverse action. The burden may be
satisfied, for example, if the complaint shows that the adverse action
took place shortly after the protected activity, giving rise to the
inference that it was a contributing factor in the adverse action. If
the required showing has not been made, the complainant (or the
complainant's legal counsel, if complainant is represented by counsel)
will be so notified and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent demonstrates by clear and convincing evidence that it would
have taken the same adverse action in the absence of the complainant's
protected activity.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, the Assistant
Secretary will proceed with the investigation. The investigation will
proceed whenever it is necessary or appropriate to confirm or verify
the information provided by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1984.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the respondent has violated
section 18C of the FLSA and that preliminary reinstatement is
warranted, the Assistant Secretary will again contact the respondent
(or the respondent's legal counsel if respondent is represented by
counsel) to give notice of the substance of the relevant evidence
supporting the complainant's allegations as developed during the course
of the investigation. This evidence includes any witness statements,
which will be redacted to protect the identity of confidential
informants where statements were given in confidence; if the statements
cannot be redacted without revealing the identity of confidential
informants, summaries of their contents will be provided. The
complainant will also receive a copy of the materials that must be
provided to the respondent under this paragraph. Before providing such
materials to the complainant, the Agency will redact them, if
necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality laws. The respondent will be given
the opportunity to submit a written response, to meet with the
investigators, to present statements from witnesses in support of its
position, and to present legal and factual arguments. The respondent
must present this evidence within 10 business days of the Assistant
Secretary's notification pursuant to this paragraph, or as soon
thereafter as the Assistant Secretary and the respondent can agree, if
the interests of justice so require.
Sec. 1984.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether or not
there is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of section 18C of the FLSA.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief
to the complainant. The preliminary order will require, where
appropriate: Affirmative action to abate the violation; reinstatement
of the complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney's and expert
witness fees) reasonably incurred. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings and, where appropriate, the preliminary order will
be sent by certified mail, return receipt requested, to all parties of
record (and each party's legal counsel if the party is represented by
counsel). The findings and, where appropriate, the preliminary order
will inform the parties of the right to object to the findings and/or
order and to request a hearing, and of the right of the respondent to
request an award of attorney's fees not exceeding $1,000 from the ALJ,
regardless of whether the respondent has filed objections, if
respondent alleges that the complaint was frivolous or brought in bad
faith. The findings and, where appropriate, the preliminary order also
will give the address of the Chief Administrative Law Judge, U.S.
Department of Labor. At the same time, the Assistant Secretary will
file with the Chief Administrative Law Judge a copy of the original
complaint and a copy of the findings and/or order.
(c) The findings and any preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and/or a request for hearing has been timely filed as
provided at Sec. 1984.106. However, the portion of any preliminary
order requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.
Subpart B--Litigation
Sec. 1984.106 Objections to the findings and the preliminary order
and requests for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and/or preliminary order, or a respondent alleging that the
complaint was frivolous or brought in bad faith
[[Page 13234]]
who seeks an award of attorney's fees under section 18C of the FLSA,
must file any objections and/or a request for a hearing on the record
within 30 days of receipt of the findings and preliminary order
pursuant to Sec. 1984.105. The objections, request for a hearing, and/
or request for attorney's fees must be in writing and state whether the
objections are to the findings, the preliminary order, and/or whether
there should be an award of attorney's fees. The date of the postmark,
facsimile transmittal, or electronic communication transmittal is
considered the date of filing; if the objection is filed in person, by
hand delivery or other means, the objection is filed upon receipt.
Objections must be filed with the Chief Administrative Law Judge, U.S.
Department of Labor, and copies of the objections must be mailed at the
same time to the other parties of record, the OSHA official who issued
the findings and order, the Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
(b) If a timely objection is filed, all provisions of the
preliminary order will be stayed, except for the portion requiring
preliminary reinstatement, which will not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the respondent's receipt of the findings and
preliminary order, regardless of any objections to the order. The
respondent may file a motion with the Office of Administrative Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement, which shall be granted only based on exceptional
circumstances. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or the
preliminary order will become the final decision of the Secretary, not
subject to judicial review.
Sec. 1984.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
codified at subpart A of part 18 of this title.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo on the record. ALJs have broad
discretion to limit discovery in order to expedite the hearing.
(c) If both the complainant and the respondent object to the
findings and/or order, the objections will be consolidated and a single
hearing will be conducted.
(d) Formal rules of evidence will not apply, but rules or
principles designed to assure production of the most probative evidence
will be applied. The ALJ may exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Sec. 1984.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding and must be served with copies of all documents in the case.
At the Assistant Secretary's discretion, the Assistant Secretary may
participate as a party or as amicus curiae at any time at any stage of
the proceeding. This right to participate includes, but is not limited
to, the right to petition for review of a decision of an ALJ, including
a decision approving or rejecting a settlement agreement between the
complainant and the respondent.
(2) Copies of documents must be sent to the Assistant Secretary,
and to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, only upon request of the Assistant Secretary, or
where the Assistant Secretary is participating in the proceeding, or
where service on the Assistant Secretary and the Associate Solicitor is
otherwise required by these rules.
(b) The IRS, HHS, and EBSA, if interested in a proceeding, may
participate as amicus curiae at any time in the proceeding, at those
agencies' discretion. At the request of the interested Federal agency,
copies of all documents in a case must be sent to the Federal agency,
whether or not the agency is participating in the proceeding.
Sec. 1984.109 Decision and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that protected activity
was a contributing factor in the adverse action alleged in the
complaint.
(b) If the complainant has satisfied the burden set forth in the
prior paragraph, relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of any protected activity.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
1984.104(e) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the ALJ, and a complaint may
not be remanded for the completion of an investigation or for
additional findings on the basis that a determination to dismiss was
made in error. Rather, if there otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose of the matter without a hearing
if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will require, where appropriate:
Affirmative action to abate the violation; reinstatement of the
complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions, and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney's and expert
witness fees) reasonably incurred. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ALJ determines that a complaint was
frivolous or was brought in bad faith, the ALJ may award to the
respondent a reasonable attorney's fee, not exceeding $1,000.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring
reinstatement or lifting an order of reinstatement by the Assistant
Secretary will be effective immediately upon receipt of the decision by
the respondent. All other portions of the ALJ's order will be effective
14 days after the date of the decision unless a timely petition for
review has been filed with the Administrative Review Board (ARB), U.S.
Department of Labor. The
[[Page 13235]]
decision of the ALJ will become the final order of the Secretary unless
a petition for review is timely filed with the ARB and the ARB accepts
the petition for review.
Sec. 1984.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney's
fees, must file a written petition for review with the ARB, which has
been delegated the authority to act for the Secretary and issue final
decisions under this part. The parties should identify in their
petitions for review the legal conclusions or orders to which they
object, or the objections may be deemed waived. A petition must be
filed within 14 days of the date of the decision of the ALJ. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal will be considered to be the date of filing; if the
petition is filed in person, by hand delivery or other means, the
petition is considered filed upon receipt. The petition must be served
on all parties and on the Chief Administrative Law Judge at the time it
is filed with the ARB. Copies of the petition for review must be served
on the Assistant Secretary, and on the Associate Solicitor, Division of
Fair Labor Standards, U.S. Department of Labor.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the ALJ will become the final
order of the Secretary unless the ARB, within 30 days of the filing of
the petition, issues an order notifying the parties that the case has
been accepted for review. If a case is accepted for review, the
decision of the ALJ will be inoperative unless and until the ARB issues
an order adopting the decision, except that any order of reinstatement
will be effective while review is conducted by the ARB, unless the ARB
grants a motion by the respondent to stay that order based on
exceptional circumstances. The ARB will specify the terms under which
any briefs are to be filed. The ARB will review the factual
determinations of the ALJ under the substantial evidence standard. If
no timely petition for review is filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not
subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be 14 days after
the date of the decision of the ALJ, unless a motion for
reconsideration has been filed with the ALJ in the interim. In such
case, the conclusion of the hearing is the date the motion for
reconsideration is ruled upon or 14 days after a new decision is
issued. The ARB's final decision will be served upon all parties and
the Chief Administrative Law Judge by mail. The final decision will
also be served on the Assistant Secretary, and on the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing relief to the complainant.
The final order will require, where appropriate: Affirmative action to
abate the violation; reinstatement of the complainant to the
complainant's former position, together with the compensation
(including back pay and interest), terms, conditions, and privileges of
the complainant's employment; and payment of compensatory damages,
including, at the request of the complainant, the aggregate amount of
all costs and expenses (including attorney's and expert witness fees)
reasonably incurred. Interest on back pay will be calculated using the
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621
and will be compounded daily.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney's fee, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1984.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
(a) At any time prior to the filing of objections to the Assistant
Secretary's findings and/or preliminary order, a complainant may
withdraw his or her complaint by notifying the Assistant Secretary,
orally or in writing, of his or her withdrawal. The Assistant Secretary
then will confirm in writing the complainant's desire to withdraw and
determine whether to approve the withdrawal. The Assistant Secretary
will notify the parties (and each party's legal counsel if the party is
represented by counsel) of the approval of any withdrawal. If the
complaint is withdrawn because of settlement, the settlement must be
submitted for approval in accordance with paragraph (d) of this
section. A complainant may not withdraw his or her complaint after the
filing of objections to the Assistant Secretary's findings and/or
preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1984.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
order become final, a party may withdraw objections to the Assistant
Secretary's findings and/or order by filing a written withdrawal with
the ALJ. If the case is on review with the ARB, a party may withdraw a
petition for review of an ALJ's decision at any time before that
decision becomes final by filing a written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will determine whether to approve
the withdrawal of the objections or the petition for review. If the ALJ
approves a request to withdraw objections to the Assistant Secretary's
findings and/or order, and there are no other pending objections, the
Assistant Secretary's findings and/or order will become the final order
of the Secretary. If the ARB approves a request to withdraw a petition
for review of an ALJ decision, and there are no other pending petitions
for review of that decision, the ALJ's decision will become the final
order of the Secretary. If objections or a petition for review are
withdrawn because of settlement, the settlement must be submitted for
approval in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant, and the respondent agree to a
settlement. The Assistant Secretary's approval of a settlement reached
by the respondent and the complainant demonstrates the Assistant
Secretary's consent and achieves the consent of all three parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is
[[Page 13236]]
approved by the ALJ if the case is before the ALJ, or by the ARB if the
ARB has accepted the case for review. A copy of the settlement will be
filed with the ALJ or the ARB, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the ALJ, or
the ARB will constitute the final order of the Secretary and may be
enforced in United States district court pursuant to Sec. 1984.113.
Sec. 1984.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1984.109 and 1984.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
(b) A final order is not subject to judicial review in any criminal
or other civil proceeding.
(c) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the ALJ, will be transmitted
by the ARB or the ALJ, as the case may be, to the appropriate court
pursuant to the Federal Rules of Appellate Procedure and the local
rules of such court.
Sec. 1984.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement, or a final order, including one approving a
settlement agreement, issued under section 18C of the FLSA, the
Secretary or a person on whose behalf the order was issued may file a
civil action seeking enforcement of the order in the United States
district court for the district in which the violation was found to
have occurred. The Secretary also may file a civil action seeking
enforcement of the order in the United States district court for the
District of Columbia.
Sec. 1984.114 District court jurisdiction of retaliation complaints.
(a) The complainant may bring an action at law or equity for de
novo review in the appropriate district court of the United States,
which will have jurisdiction over such an action without regard to the
amount in controversy, either:
(1) Within 90 days after receiving a written determination under
Sec. 1984.105(a) provided that there has been no final decision of the
Secretary; or
(2) If there has been no final decision of the Secretary within 210
days of the filing of the complaint.
(3) At the request of either party, the action shall be tried by
the court with a jury.
(b) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in section
1984.109. The court shall have jurisdiction to grant all relief
necessary to make the employee whole, including injunctive relief and
compensatory damages, including:
(1) Reinstatement with the same seniority status that the employee
would have had, but for the discharge or discrimination;
(2) The amount of back pay, with interest; and
(3) Compensation for any special damages sustained as a result of
the discharge or discrimination, including litigation costs, expert
witness fees, and reasonable attorney fees.
(c) Within seven days after filing a complaint in federal court, a
complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. A copy of the complaint also must be served on the
OSHA official who issued the findings and/or preliminary order, the
Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor.
Sec. 1984.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three- days notice to all parties, waive any
rule or issue such orders that justice or the administration of section
18C of the FLSA requires.
[FR Doc. 2013-04329 Filed 2-22-13; 11:15 am]
BILLING CODE 4510-26-P