[Federal Register: August 10, 2007 (Volume 72, Number 154)][Rules and Regulations]
[Page 44956-44969]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10au07-5]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 24
[Docket Number: OSHA-2007-0028]
RIN 1218-AC25
Procedures for the Handling of Retaliation Complaints Under the
Employee Protection Provisions of Six Federal Environmental Statutes
and Section 211 of the Energy Reorganization Act of 1974, as Amended
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Department of Labor amends the regulations governing the
employee protection (``whistleblower'') provisions of Section 211 of
the Energy Reorganization Act of 1974, as amended (``ERA''), to
implement the statutory changes enacted into law on August 8, 2005, as
part of the Energy Policy Act of 2005. The regulations also make the
procedures for handling retaliation complaints under Section 211 of the
ERA and the environmental whistleblower statutes listed in Part 24 as
consistent as possible with the more recently promulgated procedures
for handling retaliation complaints under other employee protection
provisions administered by the Occupational Safety and Health
Administration (``OSHA''), see 29 CFR parts 1979-1981.
DATES: This interim final rule is effective on August 10, 2007.
Comments and additional materials must be submitted (postmarked, sent
or received) by October 9, 2007.
ADDRESSES: You may submit comments and additional materials by any of
the following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for making
electronic submissions.
Fax: If your submissions, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
Mail, hand delivery, express mail, messenger or courier service:
You must submit three copies of your comments and attachments to the
OSHA Docket Office, Docket No. OSHA-2007-0028, U.S. Department of
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Deliveries (hand, express mail, messenger and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m.-4:45 p.m., e.t.
Instructions: All submissions must include the Agency name and the
OSHA docket number for this rulemaking (Docket No. OSHA-2007-0028).
Submissions, including any personal information you provide, are placed
in the public docket without change and may be made available online at
http://www.regulations.gov. Therefore, OSHA cautions you about
submitting personal information such as social security numbers and
birth dates. For further information on submitting comments plus
additional information on the rulemaking process, see the ``Public
Participation'' heading in the SUPPLEMENTARY INFORMATION section of
this document.
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: Nilgun Tolek, Director, Office of
Investigative Assistance, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199. This is
not a toll-free number. 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 Energy Policy Act of 2005, Public Law 109-58, was enacted on
August 8, 2005. Among other provisions, this new law amended the
employee protection provisions for nuclear whistleblowers under Section
211 of the ERA, 42 U.S.C. 5851; the statutory amendments affect
only ERA whistleblower complaints. The amendments to the ERA apply to
whistleblower claims filed on or after August 8, 2005, the date of the
enactment of Section 629 of the Energy Policy Act of 2005. The changes
to the regulations also affect the six environmental whistleblower
statutes because the same procedures apply to each of the statutes
covered in Part 24. The regulatory changes recognize the importance of
consistency in the procedures governing the whistleblower statutes
administered by OSHA.
II. Public Participation
Submission of Comments and Access to Docket
You may submit comments and additional materials (1) electronically
at http://www.regulations.gov, which is the Federal eRulemaking Portal;
(2) by facsimile (FAX); or (3) by hard copy. All submissions must
identify the Agency name and the OSHA docket number for this rulemaking
(Docket No. OSHA-2007-0028). You may supplement electronic submissions
by uploading document attachments and files electronically. If,
instead, you wish to mail additional materials in reference to an
electronic or fax submission, you must submit three copies to the OSHA
Docket Office (see ADDRESSES section). The additional materials must
clearly identify your electronic submissions by name, date, and docket
number so OSHA can attach them to your submissions.
Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of submissions. For
information about security procedures concerning the delivery of
materials by hand, express delivery, messenger or courier service,
please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-
5627).
Submissions are posted without change at http://www.regulations.gov.
Therefore, OSHA cautions commenters about submitting personal information
such as social security numbers and birth dates. Although all submissions
are listed in the http://www.regulations.gov index,
some information (e.g., copyrighted material) is not publicly available to
read or download through http://www.regulations.gov.
All submissions, including copyrighted material, are available for
inspection and copying at the OSHA Docket Office. Information on using the
http://www.regulations.gov Web site to submit comments,
requests for hearings and attachments, and to access the docket is
available at the Web site's User Tips link. Contact the OSHA Docket
Office for information about materials not available through the
Web site and for assistance in using the internet to locate docket
submissions.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also are available at OSHA's Web page
at http://www.osha.gov.
III. Summary of Statutory Changes to ERA Whistleblower Provisions
Section 629 of Public Law 109-58 (119 Stat. 785) amended Section
211 of the ERA, 42 U.S.C. 5851 by making the changes described below.
Revised Definition of ``Employer''
Section 211 of the ERA defined a covered ``employer'' to include:
licensees of the Nuclear Regulatory Commission (``Commission'');
applicants for such licenses, and their contractors and subcontractors;
contractors and subcontractors of the Department of Energy, except
those involved in naval nuclear propulsion work under Executive Order
12344; licensees of an agreement State under Section 274 of the Atomic
Energy Act of 1954; applicants for such licenses, and their contractors
and subcontractors. The August 2005 amendments revised the definition
of ``employer'' to extend coverage to employees of contractors and
subcontractors of the Commission; the Commission; and the Department of
Energy.
De Novo Review
The August 2005 amendments added a provision for de novo review by
a United States District Court in the event that the Secretary has not
issued a final decision within one year after the filing of a
complaint, and there is no showing that the delay is due to the bad
faith of the complainant.
IV. Summary and Discussion of Regulatory Provisions
The regulatory provisions in this part have been revised in the
interest of consistency to conform to the regulations implementing the
employee protection provisions of the following statutes that are
administered and enforced by the Secretary of Labor: Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (``AIR21''),
codified at 29 CFR part 1979; the Sarbanes-Oxley Act of 2002 (``SOX''),
codified at 29 CFR part 1980; and the Pipeline Safety Improvement Act
of 2002 (``PSIA''), codified at 29 CFR 1981. The section numbers of
this regulation also have been changed to correspond with the numbering
under the regulations implementing AIR21, SOX, and PSIA. Although these
regulations are intended to conform to those implementing AIR21, SOX,
and PSIA, they make one change in terminology; they refer to actions
brought under the employee protection provisions of these statutes as
actions alleging ``retaliation'' rather than ``discrimination.'' This
change in terminology, which is not intended to have substantive
effect, reflects that claims brought under these employee protection
provisions are prototypical retaliation claims. A retaliation claim is
a specific type of discrimination claim that focuses on actions taken
as a result of an employee's protected activity rather than as a result
of an employee's characteristics (i.e., race, gender, or religion). The
burdens of proving a retaliation claim are the same as those of a
standard discrimination claim. See Essex v. United Parcel Service,
Inc., 111 F.3d 1304, 1308 (7th Cir. 1997).
Section 24.100 Purpose and Scope
This section (formerly Sec. 24.1) describes the purpose of the
regulations implementing the employee protection provisions of seven
statutes enforced by the Secretary of Labor and provides an overview of
the procedures covered by the regulations. The section has been revised
to refer to the Federal Water Pollution Control Act, instead of the
Clean Water Act. They are synonymous, but the Office of Administrative
Law Judges and the Administrative Review Board generally use Federal
Water Pollution Control Act, and we do so here for the sake of
consistency. In addition, the section has been renumbered to conform to
the numbering system for regulations that implement AIR21, SOX, and the
PSIA. Thus, for example, former Sec. 24.1 becomes current Sec.
24.100.
Section 24.101 Definitions
This new section includes general definitions applicable to the
employee protection provisions of the seven statutes listed in Sec.
24.100(a). This section does not include program-specific definitions,
which may be found in the statutes.
Section 24.102 Obligations and Prohibited Acts
This section (formerly Sec. 24.2) describes the whistleblower
activity that is protected under the statutes covered by this Part and
the type of conduct that is prohibited in response to any protected
activity. The language generally has been revised to conform to
the language in the regulations that implement the AIR21, SOX, and PSIA
whistleblower provisions. The changes are not intended to be
substantive. References to the statutes listed in 24.100(a) have
deleted the adjective ``Federal'' as unnecessary. Paragraph (e) has
been moved from former Sec. 24.9. We note that the ARB interprets the
phrase ``deliberate violations'' for the purpose of denying protection
to an employee as including an element of willfulness. See Fields v.
United States Department of Labor Administrative Review Board, 173 F.3d
811, 814 (11th Cir. 1999) (petitioners knowingly conducted unauthorized
and potentially dangerous experiments).
Section 24.103 Filing of Retaliation Complaint
This section (formerly Sec. 24.3) has been revised to be
consistent with the regulatory procedures implementing the
whistleblower provisions of the AIR21, SOX, and PSIA. Thus, the section
heading has been changed from ``Complaint'' to ``Filing of Retaliation
Complaint.'' Also, paragraph (c) has been changed to paragraph (b) and
the heading has been changed from ``Form of Complaint'' to ``Nature of
filing;'' paragraph (d) has been changed to paragraph (c); and
paragraph (b) has been changed to paragraph (d) and the language has
been changed to conform with that appearing in the AIR21, SOX, and PSIA
regulations. Finally, paragraph (e) ``Relationship to section 11(c)
complaints'' has been added to explain the policy of the Secretary
regarding the relationship between complaints filed under the statutes
listed in Sec. 24.100(a) and a complaint under Section 11(c) of the
Occupational Safety and Health Act.
Section 24.104 Investigation
This section (formerly Sec. 24.4) has been revised so that its
language will conform more closely to the language of the regulations
implementing AIR21, SOX, and PSIA. Additionally, former paragraph (b)
of Sec. 24.5 has been revised and moved to this section, and former
paragraph (d) of Sec. 24.4 has been revised and moved to Sec. 24.105,
where it more appropriately appears under ``Issuance of findings and
orders.''
This rule sets forth two different standards of causation--
``motivating'' factor and ``contributing'' factor--depending on the
whistleblower statute under which a complaint is filed. When
investigating or adjudicating whistleblower complaints under the six
environmental whistleblower statutes, the Department of Labor relies on
the traditional standards derived from Title VII and other
discrimination law as set forth under Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274 (1977); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981); and McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dartey v. Zack Co. of
Chicago, No. 82-ERA-2, 1983 WL 189787, at *3-*4 (Sec'y of Labor Apr.
25, 1983 (discussing Burdine, 450 U.S. at 254-255)). Under these
standards, a complainant seeking to prove retaliation must first
establish a prima facie case that protected activity was a motivating
factor in the adverse action, which creates a presumption of
retaliation. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993). Once a complainant establishes a prima facie case, the employer
has the burden of producing a legitimate, nonretaliatory explanation
for its actions. If the employer presents such evidence, the
presumption in favor of the complainant disappears, and the complainant
must establish by a preponderance of the evidence that the employer's
explanation was a pretext, that is, that the real reason for the
adverse action was retaliation. A prima facie case, together with proof
that the employer's explanation is pretext, permits (but does not
require) a trier of fact to find retaliation. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 147-148 (2000); St. Mary's Honor
Center, 509 U.S. at 519 (``It is not enough * * * to disbelieve the
employer; the factfinder must believe the plaintiff's explanation of
intentional discrimination.''); Dartey v. Zack, supra. Thus, under
these principles, an employee must prove by a preponderance of the
evidence that retaliation was a ``motivating factor'' for the adverse
employment action. The Secretary can conclude from the evidence that
the employer's reason for the retaliation was a pretext and rule for
the employee, or that the employer was not motivated in whole or in
part by protected activity and rule for the employer, or that an
employer acted out of mixed motives. See Dartey v. Zack, 1983 WL
189787, at *4. If the Secretary concludes that the employer acted out
of mixed motives, the employer can escape liability by proving, by a
preponderance of the evidence, that it would have reached the same
decision even in the absence of protected activity. Id. (discussing Mt.
Healthy, 429 U.S. at 287).
Paragraph (b) of this section, which sets forth procedures that
apply only in ERA cases, applies the ERA's statutory burdens of proof.
Since the 1992 amendments to the ERA, its whistleblower provisions, in
contrast to the other whistleblower provisions listed under Sec.
24.100(a), have contained specific statutory standards for the
dismissal and adjudication of complaints and for the resolution of
mixed motive or dual motive cases. See 42 U.S.C. 5851(b)(3)(A) through
(b)(3)(D); Public Law 102-486, section 2902, 106 Stat. at 3123-3124.
The ERA requires that a complainant make an initial prima facie showing
that protected activity was ``a contributing factor'' in the
unfavorable personnel action alleged in the complaint, i.e., that
whistleblowing activity, alone or in combination with other factors,
affected in some way the outcome of the employer's personnel decision.
42 U.S.C. 5851(b)(3)(A). If the complainant does not make the prima
facie showing, the investigation must be discontinued and the complaint
dismissed. See Trimmer v. United States Dep't of Labor, 174 F.3d 1098,
1101 (10th Cir. 1999) (noting that the distinct burden-shifting
framework of the 1992 ERA amendments served a ``gatekeeping function''
that ``stemmed frivolous complaints''). Even in cases where the
complainant successfully makes a prima facie showing, the investigation
must be discontinued if the employer ``demonstrates, by clear and
convincing evidence, that it would have taken the same unfavorable
personnel action'' in the absence of the protected activity. 42 U.S.C.
5851(b)(3)(B). Thus, under the ERA, the Secretary must dismiss the
complaint 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 unfavorable personnel action;
or (2) the employer rebuts that showing by clear and convincing
evidence that it would have taken the same unfavorable personnel action
absent the protected activity.
Assuming that an investigation proceeds beyond the gatekeeping
phase, the ERA provides statutory burdens of proof that require an
employee to prove that the alleged protected activity was a
``contributing factor'' to the alleged adverse action. 42 U.S.C.
5851(b)(3)(C). If the employee proves that the alleged protected
activity was a contributing factor to the adverse action, the employer,
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 combination 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) (Whistleblower Protection Act, 5 U.S.C. 1221(e)(1));
cf. Trimmer, 174 F.3d at 1101 (the 1992 amendments aimed, in part,
``to make it easier for [ERA] whistleblowers to prevail in their
discrimination suits'')). 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 complainant's protected activity. See Klopfenstein v. PCC Flow
Techs. Holdings, Inc., No. 04-149, 2006 WL 1516650, *13 (ARB May 31, 2006)
(discussing contributing factor test under SOX) (citing Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
The ERA 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. The Secretary therefore
adheres to traditional Title VII discrimination law for that
determination, i.e., the complainant must prove by a ``preponderance of
the evidence'' that his protected activity contributed to his
termination; otherwise, the burden never shifts to the employer to
establish its ``clear and convincing evidence'' mixed-motive defense.
See, e.g., Dysert v. United States Secretary of Labor, 105 F.3d 607,
609 (11th Cir. 1997) (upholding Department's interpretation of 42
U.S.C. 5851(b)(3)(C), as requiring an employee to prove by a
preponderance of the evidence that protected activity was a
contributing factor in an adverse action); see also Trimmer, 174 F.3d
at 1102 (``[o]nly if the complainant meets his burden [of proving by a
preponderance of the evidence that he engaged in protected activity
that was a contributing factor in an unfavorable employment decision]
does the burden then shift to the employer to demonstrate by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of such behavior.''); Stone & Webster
Engineering Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997)
(under section 5851, an employee must first persuade the Secretary that
protected activity was a contributing factor in an adverse action and
then, if the employee succeeds, the employer must prove by clear and
convincing evidence that it would have taken the same action in the
absence of protected activity).
Under traditional Title VII burden shifting principles applicable
to the six environmental whistleblower statutes, if the Secretary
concludes that the employer acted for both prohibited and legitimate
reasons (i.e., a ``mixed motive'' case), the employer can escape
liability by proving, by a preponderance of the evidence, that it would
have reached the same decision even in the absence of the protected
conduct. See Dartey v. Zack, 1983 WL 189787, at *4 (discussing Mt.
Healthy, 429 U.S. at 287). However, the 1992 ERA amendments altered the
employer's burden in a ``mixed motive'' case; under the ERA, once the
Secretary concludes that the employer acted for both prohibited and
legitimate reasons, the employer can escape liability only by proving
by clear and convincing evidence that it would have reached the same
decision even in the absence of the protected activity. 42 U.S.C.
5851(b)(3)(D). The ``clear and convincing evidence'' standard is a
higher burden of proof for employers than the former ``preponderance of
the evidence'' standard. See 138 Cong. Rec. 32,081, 32,082 (1992).
Section 24.105 Issuance of Findings and Orders
The procedures set forth in this section formerly appeared under a
paragraph of Sec. 24.4, the Investigations section. This new section
was created for purposes of clarification and consistency with the
regulations implementing the AIR21, SOX, and PSIA whistleblower
provisions. The former regulations provided that the Assistant
Secretary would issue a ``Notice of Determination'' at the conclusion
of the investigation, or upon dismissal of a complaint. These
regulations no longer use the term ``Notice of Determination.''
Instead, the regulations refer to the issuance of findings and orders,
the nomenclature used in the regulations implementing AIR21, SOX, and
PSIA. This change in nomenclature is not intended to be substantive.
The 30-day timeframe for completion of the investigation has been
retained because it is a statutory requirement under the majority of
the whistleblower statutes covered by this part (the Solid Waste
Disposal Act, the Federal Water Pollution Control Act, and the
Comprehensive Environmental Response, Compensation and Liability Act
have no timeframe). The current regulations provide a 5-business-day
timeframe for filing objections to the findings. These new regulations
have been changed to provide that if no objections to the Assistant
Secretary's findings and order are filed within 30 days of their
receipt, the findings and order of the Assistant Secretary will become
the final order of the Secretary. Thus, the timeframe for objecting to
the findings and/or order and for requesting a hearing has been
extended from 5 business days to 30 days. The Secretary is aware that,
since the ERA, the Clean Air Act (``CAA''), the Safe Drinking Water Act
(``SDWA''), and the Toxic Substances Control Act (``TSCA'') provide
that the Secretary should issue a final decision within 90 days of the
filing of the complaint, allowing the parties 30 days in which to
object to the Assistant Secretary's findings and any order issued may
have an impact on the Department's meeting the 90-day timeframe.
Although the ERA amendments in 2005 did not change the 90-day
timeframe, the Secretary believes that in amending the ERA in 2005,
Congress recognized that it appropriately could take up to one year to
complete the investigatory and adjudicative processing of a
whistleblower complaint (i.e., issue a final decision of the Secretary)
under these environmental statutes. Accordingly, the Secretary believes
that allowing 30 days for a party to object to the Assistant
Secretary's findings and request a hearing is warranted. Not only does
the extension make the regulations more consistent with those
implementing AIR21, SOX, and PSIA, it also offers the parties a more
reasonable timeframe in which to consider whether to appeal the
Assistant Secretary's findings.
Subpart B--Litigation
Section 24.106 Objections to the Findings and Order and Request for a
Hearing
Formerly, the procedures for requesting a hearing before an
administrative law judge (``ALJ'') were set forth under Sec. 24.6. As
indicated above, 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, 800 K Street, NW.,
Washington, DC 20001 within 30 days of receipt of the findings. The
date of the postmark, facsimile transmittal, or e-mail communication is
considered the date of the filing. The filing of objections is also
considered a request for a hearing before an ALJ. Although the parties
are directed to serve a copy of their objections to the other parties
of record, as well as 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, N 2716, 200 Constitution Ave.,
NW., Washington, DC 20210, the failure to serve copies of the objections
to 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., No. 04-101, 2005 WL 2865915, *7 (ARB Oct. 31, 2005).
Section 24.107 Hearings
This section has been revised to conform to the regulations
implementing the whistleblower provisions under AIR21, SOX, and PSIA.
It adopts the rules of practice of the Office of Administrative Law
Judges at 29 CFR Part 18, Subpart A. In order to assist in obtaining
full development of the facts in whistleblower proceedings, formal
rules of evidence do not apply. The section specifically provides for
consolidation of hearings if both the complainant and respondent object
to the findings and/or order of the Assistant Secretary. Otherwise,
this section no longer addresses procedural issues, e.g., place of
hearing, right to counsel, procedures, evidence and record of hearing,
oral arguments and briefs, and dismissal for cause, because the Office
of Administrative Law Judges has adopted its own rules of practice that
cover these matters. In order for hearings to be conducted as
expeditiously as possible, and particularly in light of the unique
provision in the ERA allowing complainants to seek a de novo hearing in
federal court if the Secretary has not issued a final decision within
one year of the filing of the complaint, this section provides that the
ALJ has broad authority to limit discovery. For example, an ALJ may
limit the number of interrogatories, requests for production of
documents, or depositions allowed. An ALJ also may exercise discretion
to limit discovery unless the complainant agrees to delay filing a
complaint in federal court for some definite period of time beyond the
one-year point. If a complainant seeks excessive or burdensome
discovery under the ALJ's rules and procedures at part 18 of Title 29,
or fails to adhere to an agreement to delay filing a complaint in
federal court, a district court considering a request for de novo
review might conclude that such conduct resulted in a delay due to the
claimant's bad faith.
Former paragraphs (f) and (g) of this section have been moved to
section 24.108.
Section 24.108 Role of Federal Agencies
This new section was added to conform these regulations to those
implementing AIR21, SOX, and PSIA. As noted above, the substance of
this section formerly was set forth under paragraphs (f) and (g) of
Sec. 24.6, the section covering hearings. No substantive changes are
intended. Under the ERA and the environmental whistleblower statutes,
OSHA does not ordinarily appear as a party in the proceeding. The
Secretary has found that in most whistleblower cases, parties have been
ably represented and the public interest has not required the
Department's participation. Nevertheless, the Assistant Secretary, at
his or her discretion, may participate as a party or amicus curiae at
any time in the administrative proceedings. 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 Administrative
Review Board proceeding. Although we anticipate 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
which appear egregious, or where the interests of justice might require
participation by the Assistant Secretary. The Environmental Protection
Agency, the Nuclear Regulatory Commission, and the Department of
Energy, at those agencies' discretion, also may participate as amicus
curiae at any time in the proceedings.
Section 24.109 Decision and Order of the Administrative Law Judge
This section sets forth the content of the decision and order of
the ALJ, and includes the standard for finding a violation under the
environmental statutes and the ERA. The section further provides that
the Assistant Secretary's determination to dismiss the complaint
without an investigation or without a complete investigation pursuant
to Sec. 24.104 is not subject to review. Thus, paragraph (c) of
section 24.109 clarifies that the Assistant Secretary's determinations
on whether to proceed with an investigation under the ERA and whether
to make particular investigative findings under any of the statutes
subject to this Part 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 set forth above in the
discussion of Sec. 24.104.
This section also has been revised to eliminate the requirement
under the ERA for the ALJ to issue a preliminary order of reinstatement
separate from the findings. The section clarifies that when an ALJ's
decision finds that the complaint has merit and orders relief, the
order will be effective immediately upon its receipt by the respondent,
except for that part of the order awarding compensatory damages.
Congress intended that whistleblowers under the ERA be reinstated and
provided additional interim relief based upon the ALJ's order even
while the decision is on review with the Administrative Review Board.
The previous regulations have caused confusing delays to the
complainant's right to immediate reinstatement. See, e.g., McNeill v.
Crane Nuclear, Inc., No. 02-002, 2002 WL 31932543, *1-*2 (Adm. Rev. Bd.
Apr. 24, 2006). The Secretary intends that, by eliminating any
requirement that the ALJ ``shall also issue a preliminary order
providing all of the relief'' specified in the recommended order before
an interim order becomes effective, confusion will be avoided and
congressional intent to have complainants promptly reinstated based
upon a meritorious ALJ decision will be better effectuated.
Furthermore, the ALJ's order will be effective immediately whether or
not the ALJ designates the decision and/or order as recommended. As the
Administrative Review Board recently recognized, every decision of an
ALJ is recommended until it becomes the final decision of the
Secretary. Welch v. Cardinal Bankshares Corp., No. 06-062, 2006 WL
861374, * 3 n. 13 (Adm. Rev. Bd. Mar. 31, 2006) (``The APA authorizes
ALJs to issue recommended decisions. See 5 U.S.C. 554(d) (`The employee
[i.e. ALJ] who presides at the reception of evidence pursuant to
section 556 of this title shall make the recommended decision or
initial decision required by section 557 of this title.* * *' (emphasis
added); 5 U.S.C. 557(c) (`Before a recommended, initial, or tentative
decision, or a decision on agency review of the decision of subordinate
employees * * *. All decisions, including initial, recommended, and tentative
decisions, are a part of the record. * * *') (emphasis added).'').
The substance of the rest of this section was formerly found in
section 24.7. The requirement that the ALJ issue a decision within 20
days after the conclusion of the hearing has been eliminated because
procedures for issuing decisions, including their timeliness, is
addressed by the Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges at 29 CFR
18.57.
Section 24.110 Decision and Orders of the Administrative Review Board
The decision of the ALJ is the final decision of the Secretary if
no timely petition for review is filed with the Administrative Review
Board. Upon the issuance of the ALJ's decision, the parties have 10
business days within which to petition the Board for review of that
decision, or it becomes the final decision of the Secretary and is not
subject to judicial review. The date of the postmark, facsimile
transmittal, or e-mail communication 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 appeal
provisions in this part have been revised, consistent with the
whistleblower provisions of AIR21, SOX and PSIA, to provide that an
appeal to the Board is no longer a matter of right but is accepted at
the discretion of the Board. Congress intended these whistleblower
actions to be expedited and this change may assist in furthering that
goal. To facilitate review, the parties must specifically identify the
findings and conclusions to which they take exception, or the
exceptions ordinarily will be deemed waived by the parties. The Board
has 30 days to decide whether to grant the petition for review. If the
Board does not grant the petition, the decision of the ALJ becomes the
final decision of the Secretary. The ERA, CAA, SDWA, and TSCA contain a
90-day timeframe for issuing final agency decisions. Notwithstanding
this short timeframe, the Secretary believes that it is appropriate to
give the Board 30 days in which to decide whether to grant review; as
stated above, the Secretary believes that in amending the ERA in August
2005, Congress recognized that the Department appropriately could take
up to one year to complete the investigatory and adjudicative
processing of a whistleblower complaint under these statutes. If a
timely petition for review is filed with the Board, any relief ordered
by the ALJ, except for that ordered under the ERA, is inoperative while
the matter is pending before the Board. The relief ordered by the ALJ
under the ERA is effective immediately except for that portion awarding
compensatory damages. This section further provides that, when the
Board accepts a petition for review, its factual determinations will be
reviewed under the substantial evidence standard. This standard also is
applied to Board review of ALJ decisions under the whistleblower
provisions of AIR21, SOX, and PSIA.
This section also provides that in the exceptional case, the Board
may grant a motion to stay an ALJ's order of relief under the ERA,
which otherwise will be effective, while review is conducted by the
Board. The Secretary believes that a stay of an ALJ's order of relief
under the ERA only would be appropriate where the respondent can
establish the necessary criteria for equitable injunctive relief, i.e.,
irreparable injury, likelihood of success on the merits, and a
balancing of possible harms to the parties and the public favors a
stay.
Subpart C--Miscellaneous Provisions
Section 24.111 Withdrawal of Complaints, Objections, and Findings;
Settlement
This section provides for procedures and time periods for
withdrawal of complaints, the withdrawal of findings by the Assistant
Secretary, and the withdrawal of objections to findings. It also
provides for approval of settlements at the investigative and
adjudicative stages of the case. The regulations reflect that
settlement agreements under the statutory provisions of the ERA, CAA,
SDWA, and TSCA must be reviewed and approved by the Secretary to ensure
that they are just and reasonable and in the public interest. See
Beliveau v. United States Dep't of Labor, 170 F.3d 83, 86 (1st Cir.
1999); Macktal v. Secretary of Labor, 923 F.2d 1150, 1154 (5th Cir.
1991). Although it has been OSHA's practice to review settlements for
approval under all the environmental whistleblower statutes, it is
required by statute only under the ones noted above. See Bertacchi v.
City of Columbus-Division of Sewerage & Drainage, ARB Case No. 05-155
(April 13, 2006). Notwithstanding this statutory distinction, the
Department encourages the parties to submit all settlements for review
and approval, even those arising under the CERCLA, SWDA, and FWPCA. We
note that a settlement that has not been reviewed and approved by the
Secretary will not be considered a final order enforceable under
section 24.113.
Section 24.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the Administrative Review Board to submit the record
of proceedings to the appropriate court pursuant to the Federal Rules
of Appellate Procedure and the local rules of such court. Paragraph (d)
reflects that original jurisdiction for judicial review of a decision
issued under the Comprehensive Environmental Response, Compensation and
Liability Act is with the district courts rather than the appellate
courts. See 42 U.S.C. 9610(b) and 9613(b). The paragraph also reflects,
however, that when an agency decision is based on other statutes that
provide for direct review in the court of appeals, principles of
judicial economy and consistency justify review of the entire
proceeding in the court of appeals. See Ruud v. United States Dep't of
Labor, 347 F.3d 1086, 1090 (9th Cir. 2003) (``[T]he court of appeals
should entertain a petition to review an agency decision made pursuant
to the agency's authority under two or more statutes, at least one of
which provides for direct review in the court of appeals, where the
petition involves a common factual background and raises a common legal
question. Consolidated review of such a petition avoids inconsistency
and conflicts between the district and appellate courts while ensuring
the timely and efficient resolution of administrative cases.''); see
also Shell Oil Co. v. F.E.R.C., 47 F.3d 1186, 1195 (D.C. Cir. 1995)
(``[W]hen an agency decision has two distinct bases, one of which
provides for exclusive jurisdiction in the court of appeals, the entire
decision is reviewable exclusively in the appellate court.'')
(citations and internal question marks omitted).
Section 24.113 Judicial Enforcement
This section describes the Secretary's power under several of the
statutes listed in Sec. 24.100(a) to obtain judicial enforcement of
orders and the terms of a settlement agreement. It also provides for
enforcement of orders of the Secretary by the person on whose behalf
the order was issued under the ERA and the CAA.
Section 24.114 District Court Jurisdiction of Retaliation Complaints
Under the Energy Reorganization Act
This section sets forth the ERA provision allowing complainants to
bring an action in district court for de novo review if there has been
no final decision of the Secretary within one year of the filing of the
complaint and there is no delay due to the complainant's bad faith. It
provides that complainants will give notice 15 days in advance of their
intent to file a complaint in district court. This provision
authorizing a federal court complaint is similar to one under the
whistleblower provisions of SOX, but is otherwise unique among the
whistleblower statutes administered by the Secretary. This statutory
scheme creates the possibility that a complainant will have litigated a
claim before the agency, will receive a decision from an ALJ, and will
then file a complaint in district court while the case is pending
review by the Board. The Act might even be interpreted to allow a
complainant to bring an action in federal court after receiving a final
decision from the Board, if that decision were issued more than one
year after the filing of the complaint. The Secretary believes that it
would be a waste of the resources of the parties, the Department, and
the courts for complainants to pursue duplicative litigation. The
Secretary notes that the courts have recognized that, when a party has
had a full and fair opportunity to litigate a claim, an adversary
should be protected from the expense and vexation of multiple lawsuits
and that the public interest is served by preserving judicial resources
by prohibiting the same parties making the same claims. See Montana v.
United States, 440 U.S. 147, 153 (1979). When an administrative agency
acts in a judicial capacity and resolves disputed issues of fact
properly before it, which the parties have had an adequate opportunity
to litigate, the courts have not hesitated to apply the principles of
issue preclusion (collateral estoppel) or claim preclusion (res
judicata) on the basis of that administrative decision. See University
of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (citing United States
v. Utah Construction and Mining Co., 384 U.S. 394, 422 (1966)).
Therefore, the Secretary anticipates that federal courts will apply
such principles if a complainant brings a new action in federal court
following extensive litigation before the Department that has resulted
in a decision by an ALJ or the Secretary. Where an administrative
hearing has been completed and a matter is pending before an ALJ or the
Board for a decision, a federal court also might treat a complaint as a
petition for mandamus and order the Department to issue a decision
under appropriate time frames.
Section 24.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the Board may, upon
application and notice to the parties, waive any rule as justice or the
administration of the statutes listed in Sec. 24.100(a) requires.
APPENDIX A--Your Rights Under the ERA
The notice that employers are required to post under section 211(i)
of the ERA has been revised to reflect the 2005 amendments.
Specifically, the notice now reflects that the definition of
``employer'' has been expanded and that the employee has a right to
file a complaint in district Court if the Secretary has not issued a
final decision within one year of the filing of the complaint and the
delay is not due to the bad faith of the employee. As noted above, we
also have substituted the term ``retaliation'' for ``discrimination.''
V. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, Sec. 24.103) which was previously reviewed and approved for
use by the Office of Management and Budget (``OMB'') under 29 CFR 24.3
and assigned OMB control number 1218-0236 under the provisions of the
Paperwork Reduction Act of 1995 (Pub. L. 104-13).
VI. 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 and practice within the meaning of Section 553(b)(A)
of the APA; the agency does not have legislative rulemaking authority
under the applicable statutes. Therefore publication in the Federal
Register of a notice of proposed rulemaking and request for comments is
not required. Although this rule is not subject to the notice and
comment procedures of the APA, we are providing persons interested in
this interim final rule 60 days to submit comments. In so doing, we are
following the agency's practice when it recently promulgated rules for
the handling of whistleblower complaints under SOX, AIR21, and PSIA.
Specifically, those rules, procedural in nature like this rule, were
published as interim final rules; however, persons were given 60 days
in which to submit comments. The Department carefully reviewed those
comments and then issued its final rules. Similarly, in this instance,
a final rule will be published after the agency receives and carefully
reviews the public's comments.
Furthermore, because this rule is procedural 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 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.
VII. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small
Business Regulatory Enforcement Fairness Act of 1996; Executive Order
13132
The Department has concluded that this rule is not a ``significant
regulatory action'' within the meaning of Executive Order 12866 because
it is not likely to result in a rule that may: (1) Have 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; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in Executive Order 12866. Therefore, no
regulatory impact analysis has been prepared.
VIII. 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 primarily implements procedures necessitated by
statutory amendments enacted by Congress. Additionally, the regulatory
revisions are necessary for the sake of consistency with the regulatory
provisions governing procedures under the other whistleblower statutes
administered by the Secretary. Furthermore, no certification to this
effect is required and no regulatory flexibility analysis is required
because no proposed rule has been issued.
Document Preparation. This document was prepared under the
direction of the Assistant Secretary, Occupational Safety and Health
Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 24
Administrative practice and procedure, Employment, Environmental
Protection, Investigations, Reporting and recordkeeping requirements,
Whistleblowing.
Signed in Washington, DC, this 2nd day of August, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary for Occupational Safety and Health.
0
Accordingly, for the reasons set out in the preamble part 24 of title
29 of the Code of Federal Regulations is revised to read as follows:
PART 24--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER FEDERAL EMPLOYEE PROTECTION STATUTES
Subpart A--Complaints, Investigations, Issuance of Findings
Sec.
24.100 Purpose and scope.
24.101 Definitions.
24.102 Obligations and prohibited acts.
24.103 Filing of retaliation complaint.
24.104 Investigation.
24.105 Issuance of findings and orders.
Subpart B--Litigation
24.106 Objections to the findings and order and request for a
hearing.
24.107 Hearings.
24.108 Role of Federal agencies.
24.109 Decision and orders of the administrative law judge.
24.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
24.111 Withdrawal of complaints, objections, and findings;
settlement.
24.112 Judicial review.
24.113 Judicial enforcement.
24.114 District court jurisdiction of retaliation complaints under
the Energy Reorganization Act.
24.115 Special circumstances; waiver of rules.
Appendix A to Part 24--Your Rights Under the Energy Reorganization
Act.
Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 42 U.S.C. 300j-9(i),
5851, 6971, 7622, 9610.
Subpart A--Complaints, Investigations, Issuance of Findings
Sec. 24.100 Purpose and scope.
(a) This part implements procedures under the employee protection
provisions for which the Secretary of Labor has been given
responsibility pursuant to the following federal statutes: Safe
Drinking Water Act, 42 U.S.C. 300j-9(i); Federal Water Pollution
Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C.
2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42
U.S.C. 7622; Energy Reorganization Act of 1974, 42 U.S.C. 5851; and
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9610.
(b) This part establishes procedures pursuant to the federal
statutory provisions listed in paragraph (a) of this section for the
expeditious handling of retaliation complaints made by employees, or by
persons acting on their behalf. These rules, together with those rules
codified at 29 CFR part 18, set forth the procedures for submission of
complaints under the federal statutory provisions listed in paragraph
(a) of this section, investigations, issuance of findings, objections
to findings, litigation before administrative law judges, issuance of
decisions and orders, post-hearing administrative review, and
withdrawals and settlements.
Sec. 24.101 Definitions.
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 any of the statutes listed in Sec.
24.100(a).
Complainant means the employee who filed a complaint under any of
the statutes listed in Sec. 24.100(a) or on whose behalf a complaint
was filed.
OSHA means the Occupational Safety and Health Administration of the
United States Department of Labor.
Respondent means the employer named in the complaint, who is
alleged to have violated any of the statutes listed in Sec. 24.100(a).
Secretary means the Secretary of Labor or persons to whom authority
under any of the statutes listed in Sec. 24.100(a) has been delegated.
Sec. 24.102 Obligations and prohibited acts.
(a) No employer subject to the provisions of any of the statutes
listed in Sec. 24.100(a), or to the Atomic Energy Act of 1954 (AEA),
42 U.S.C. 2011 et seq., may discharge or otherwise retaliate against
any employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the employee, or any
person acting pursuant to the employee's request, engaged in any of the
activities specified in this section.
(b) It is a violation for any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner
retaliate against any employee because the employee has:
(1) Commenced or caused to be commenced, or is about to commence or
cause to be commenced, a proceeding under one of the statutes listed in
Sec. 24.100(a) or a proceeding for the administration or enforcement
of any requirement imposed under such statute;
(2) Testified or is about to testify in any such proceeding; or
(3) Assisted or participated, or is about to assist or participate,
in any manner in such a proceeding or in any other action to carry out
the purposes of such statute.
(c) Under the Energy Reorganization Act, and by interpretation of
the Secretary under any of the other statutes listed in Sec.
24.100(a), it is a violation for any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner
retaliate against any employee because the employee has:
(1) Notified the employer of an alleged violation of such statute
or the AEA of 1954;
(2) Refused to engage in any practice made unlawful by such statute
or the AEA of 1954, if the employee has identified the alleged
illegality to the employer; or
(3) Testified or is about to testify before Congress or at any
federal or state proceeding regarding any provision (or proposed
provision) of such statute or the AEA of 1954.
(d)(1) Every employer subject to the Energy Reorganization Act of
1974, as amended, shall prominently post and keep posted in any place
of employment to which the employee protection provisions of the Act
apply, a fully legible copy of the notice prepared by OSHA, printed as
appendix A to this part, or a notice approved by the Assistant
Secretary that contains substantially the same provisions and explains
the employee protection provisions of the Act and the regulations in
this part. Copies of the notice prepared by OSHA may be obtained from
the Assistant Secretary for Occupational Safety and Health, U.S.
Department of Labor, Washington, DC 20210, from local OSHA offices, or
from OSHA's Web site at http://www.osha.gov.
(2) Where the notice required by paragraph (d)(1) of this section
has not been posted, the requirement in Sec. 24.103(d)(2) that a
complaint be filed with the Assistant Secretary within 180 days of an
alleged violation will be inoperative, unless the respondent
establishes that the complainant had knowledge of the material
provisions of the notice. If it is established that the notice was
posted at the employee's place of employment after the alleged
retaliatory action occurred or that the complainant later obtained
knowledge of the provisions of the notice, the 180 days will ordinarily
run from whichever of those dates is relevant.
(e) This part shall have no application to any employee who, acting
without direction from his or her employer (or the employer's agent),
deliberately causes a violation of any requirement of any of the
statutes listed in Sec. 24.100(a) or the AEA of 1954.
Sec. 24.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been
retaliated against by an employer in violation of any of the statutes
listed in Sec. 24.100(a) 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,
except that a complaint must be in writing and should include a full
statement of the acts and omissions, with pertinent dates, which are
believed to constitute the violations.
(c) Place of Filing. The complaint should be filed with the OSHA
Area Director 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. (1) Except as provided in paragraph (d)(2) of
this section, within 30 days after an alleged violation of any of the
statutes listed in Sec. 24.100(a) occurs (i.e., when the retaliatory
decision has been both made and communicated to the complainant), an
employee who believes that he or she has been retaliated against in
violation of any of the statutes listed in Sec. 24.100(a) 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, or
e-mail communication will be considered to be the date of filing; if
the complaint is filed in person, by hand-delivery, or other means, the
complaint is filed upon receipt.
(2) Under the Energy Reorganization Act, within 180 days after an
alleged violation of the Act occurs (i.e., when the retaliatory
decision has been both made and communicated to the complainant), an
employee who believes that he or she has been retaliated against in
violation of the Act 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, or e-mail communication will be
considered to be the date of filing; if the complaint is filed in
person, by hand-delivery, or other means, the complaint is filed upon
receipt.
(e) Relationship to section 11(c) complaints. A complaint filed
under any of the statutes listed in Sec. 24.100(a) alleging facts that
would constitute a violation of section 11(c) of the Occupational
Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be both a
complaint filed under any of the statutes listed in Sec. 24.100(a) and
section 11(c). Similarly, a complaint filed under section 11(c) that
alleges facts that would constitute a violation of any of the statutes
listed in Sec. 24.100(a) will be deemed to be both a complaint filed
under any of the statutes listed in Sec. 24.100(a) and section 11(c).
Normal procedures and timeliness requirements for investigations under
the respective statutes and regulations will be followed.
Sec. 24.104 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 (redacted to protect
the identity of any confidential informants). A copy of the notice to
the respondent will also be provided to the appropriate office of the
federal agency charged with the administration of the general
provisions of the statute(s) under which the complaint is filed.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section the respondent
may submit to the Assistant Secretary a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent may request a meeting with the Assistant Secretary
to present its position.
(c) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with 29
CFR part 70.
(d) Investigation under the six environmental statutes. In addition
to the investigative procedures set forth in Sec. 24.104(a), (b), and
(c), this paragraph sets forth the procedures applicable to
investigations under the Safe Drinking Water Act; Federal Water
Pollution Control Act; Toxic Substances Control Act; Solid Waste
Disposal Act; Clean Air Act; and Comprehensive Environmental Response,
Compensation and Liability Act.
(1) A complaint of alleged violation will be dismissed unless the
complainant has made a prima facie showing that protected activity was
a motivating factor in the unfavorable personnel 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, actually or constructively,
that the employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a motivating factor in the unfavorable
action.
(3) 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 motivating factor in the unfavorable personnel
action. The burden may be satisfied, for example, if the complainant
shows that the adverse personnel action took place shortly after the
protected activity, giving rise to the inference that it was a
motivating factor in the adverse action.
(4) The complaint will be dismissed if the respondent demonstrates
by a preponderance of the evidence that it would have taken the same
unfavorable personnel action in the absence of the complainant's
protected activity.
(e) Investigation under the Energy Reorganization Act. In addition
to the investigative procedures set forth in Sec. 24.104(a), (b), and
(c), this paragraph sets forth special procedures applicable
only to investigations under the Energy Reorganization Act.
(1) A complaint of alleged violation will be dismissed unless the
complainant has made a prima facie showing that protected activity was
a contributing factor in the unfavorable personnel 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, actually or constructively,
that the employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the unfavorable
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 unfavorable personnel action. The
burden may be satisfied, for example, if the complainant shows that the
adverse personnel 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 will be so advised 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, pursuant to the procedures provided in this paragraph,
demonstrates by clear and convincing evidence that it would have taken
the same unfavorable personnel action in the absence of the
complainant's protected behavior or conduct.
(5) If the respondent fails to make a timely response or fails to
demonstrate by clear and convincing evidence that it would have taken
the same unfavorable personnel action in the absence of the behavior
protected by the Act, 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.
Sec. 24.105 Issuance of findings and orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 30 days
of filing of the complaint, written findings as to whether or not there
is reasonable cause to believe that the respondent has discriminated
against the complainant in violation of any of the statutes listed in
Sec. 24.100(a).
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, he or she shall
accompany the findings with an order providing relief to the
complainant. The order shall include, where appropriate, a requirement
that the respondent abate the violation; reinstate the complainant to
his or her former position, together with the compensation (including
back pay), terms, conditions and privileges of the complainant's
employment; pay compensatory damages; and, under the Toxic Substances
Control Act and the Safe Drinking Water Act, pay exemplary damages,
where appropriate. Where the respondent establishes that the
complainant is a security risk (whether or not the information is
obtained after the complainant's discharge), an order of reinstatement
would not be appropriate. At the complainant's request the order shall
also assess against the respondent the complainant's costs and expenses
(including attorney's fees) reasonably incurred in connection with the
filing of the complaint.
(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 order will be sent by certified mail, return
receipt requested, to all parties of record. The letter accompanying
the findings and order will inform the parties of their right to file
objections and to request a hearing and provide the address of the
Chief Administrative Law Judge. The Assistant Secretary will file a
copy of the original complaint and a copy of the findings and order
with the Chief Administrative Law Judge, U.S. Department of Labor.
(c) The findings and order will be effective 30 days after receipt
by the respondent pursuant to paragraph (b) of this section, unless an
objection and a request for a hearing has been filed as provided at
Sec. 24.106.
Subpart B--Litigation
Sec. 24.106 Objections to the findings and order and request for a
hearing.
(a) Any party who desires review, including judicial review, of the
findings and order must file any objections and/or a request for a
hearing on the record within 30 days of receipt of the findings and
order pursuant to paragraph (b) of Sec. 24.105. The objection and/or
request for a hearing must be in writing and state whether the
objection is to the findings and/or the order. The date of the
postmark, facsimile transmittal, or e-mail communication will be
considered to be 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, 800 K Street, NW., Washington, DC
20001, 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, 200 Constitution Ave., NW., N 2716,
U.S. Department of Labor, Washington, DC 20210.
(b) If a timely objection is filed, all provisions of the order
will be stayed. If no timely objection is filed with respect to either
the findings or the order, the findings and order will become the final
decision of the Secretary, not subject to judicial review.
Sec. 24.107 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, 29 CFR part 18.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to a judge 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 otherwise agreed to by the parties. Hearings
will be conducted de novo, on the record. Administrative law judges
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
available will be applied. The administrative law judge may exclude
evidence that is immaterial, irrelevant, or unduly repetitious.
Sec. 24.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding. At the Assistant Secretary's discretion, he or she may
participate as a party or participate as amicus curiae at any time at
any stage of the proceedings. This right to participate includes, but
is not limited to, the right to petition for review of a decision of an
administrative law judge, including a decision approving or rejecting a
settlement agreement between the complainant and the respondent.
(2) Copies of pleadings in all cases, whether or not the Assistant
Secretary is participating in the proceeding, must be sent to the
Assistant Secretary, Occupational Safety and Health Administration, and
to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC
20210.
(b) The Environmental Protection Agency, the Nuclear Regulatory
Commission, and the Department of Energy, if interested in a
proceeding, may participate as amicus curiae at any time in the
proceedings, at the agency's discretion. At the request of the
interested federal agency, copies of all pleadings in a case must be
sent to the federal agency, whether or not the agency is participating
in the proceeding.
Sec. 24.109 Decision and orders of the administrative law judge.
(a) The decision of the administrative law judge will contain
appropriate findings, conclusions, and an order pertaining to the
remedies provided in paragraph (c) of this section, as appropriate. In
cases arising under the ERA, a determination that a violation has
occurred may only be made if the complainant has demonstrated by a
preponderance of the evidence that the protected activity was a
contributing factor in the unfavorable personnel action alleged in the
complaint. In cases arising under the other six statutes listed in
Sec. 24.100(a), a determination that a violation has occurred may only
be made if the complainant has demonstrated by a preponderance of the
evidence that the protected activity was a motivating factor in the
unfavorable personnel action alleged in the complaint.
(b) In cases under the Energy Reorganization Act, if the
complainant has demonstrated by a preponderance of the evidence that
the protected activity was a contributing factor in the unfavorable
personnel action alleged in the complaint, relief may not be ordered if
the respondent demonstrates by clear and convincing evidence that it
would have taken the same unfavorable personnel action in the absence
of any protected activity. In cases under the other six statutes listed
in Sec. 24.100(a), even if the complainant has demonstrated by a
preponderance of the evidence that the protected activity was a
motivating factor in the unfavorable personnel action alleged in the
complaint, relief may not be ordered if the respondent demonstrates by
a preponderance of the evidence that it would have taken the same
unfavorable personnel 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.
24.104(d) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the administrative law judge,
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 administrative law judge will hear the case on the
merits.
(d)(1) If the administrative law judge concludes that the
respondent has violated the law, the order shall direct the respondent
to take appropriate affirmative action to abate the violation,
including reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. In cases arising under the Safe Drinking Water Act or the
Toxic Substances Control Act, exemplary damages may also be awarded
when appropriate. At the request of the complainant, the administrative
law judge shall assess against the respondent, all costs and expenses
(including attorney fees) reasonably incurred.
(2) In cases brought under the Energy Reorganization Act, when an
administrative law judge issues a decision that the complaint has merit
and orders the relief prescribed in paragraph (d)(1) of this section,
the relief ordered, with the exception of compensatory damages, shall
be effective immediately upon receipt, whether or not a petition for
review is filed with the Administrative Review Board.
(3) If the administrative law judge determines that the respondent
has not violated the law, an order will be issued denying the
complaint.
(e) The decision will be served upon all parties to the proceeding.
Any administrative law judge's decision issued under any of the
statutes listed in Sec. 24.100(a) will be effective 10 business days
after the date of the decision unless a timely petition for review has
been filed with the Administrative Review Board. An administrative law
judge's order issued under the Energy Reorganization Act will be
effective immediately upon receipt, except for that portion of the
order awarding any compensatory damages.
Sec. 24.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the administrative law judge must file a written
petition for review with the Administrative Review Board (``the
Board''), U.S. Department of Labor, 200 Constitution Ave., NW.,
Washington, DC 20210, which has been delegated the authority to act for
the Secretary and issue final decisions under this part. The decision
of the administrative law judge will become the final order of the
Secretary unless, pursuant to this section, a timely petition for
review is filed with the Board. The petition for review must
specifically identify the findings, conclusions or orders to which
exception is taken. Any exception not specifically urged ordinarily
will be deemed to have been waived by the parties. A petition must be
filed within 10 business days of the date of the decision of the
administrative law judge. The date of the postmark, facsimile
transmittal, or e-mail communication 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 Board. Copies of the
petition for review and all briefs must be served on the Assistant
Secretary, Occupational Safety and Health Administration, and on the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC 20210.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, and the Board, within 30 days of the filing of the
petition, issues an order notifying the parties that the case has been
accepted for review, the decision of the administrative law judge will
be inoperative unless and until the Board issues an order adopting the
decision, except that an order by an administrative law judge issued
under the Energy Reorganization Act, other than that portion of the
order awarding compensatory damages, will be effective while review is
conducted by the Board, unless the Board grants a motion by the respondent
to stay the order based on exceptional circumstances. The Board will specify
the terms under which any briefs are to be filed. The Board will review
the factual determinations of the administrative law judge under the
substantial evidence standard. If a timely petition for review is not
filed, or the Board denies review, the decision of the administrative
law judge will become the final order of the Secretary and is not
subject to judicial review.
(c) The final decision of the Board will be issued within 90 days
of the filing of the complaint. The decision will be served upon all
parties and the Chief Administrative Law Judge by mail to the last
known address. The final decision will also be served on the Assistant
Secretary, Occupational Safety and Health Administration, and on the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC 20210,
even if the Assistant Secretary is not a party.
(d) If the Board concludes that the respondent has violated the
law, the final order will order the respondent to take appropriate
affirmative action to abate the violation, including reinstatement of
the complainant to that person's former position, together with the
compensation (including back pay), terms, conditions, and privileges of
employment, and compensatory damages. In cases arising under the Safe
Drinking Water Act or the Toxic Substances Control Act, exemplary
damages may also be awarded when appropriate. At the request of the
complainant, the Board will assess against the respondent all costs and
expenses (including attorney's fees) reasonably incurred.
(e) If the Board determines that the respondent has not violated
the law, an order will be issued denying the complaint.
Subpart C--Miscellaneous Provisions
Sec. 24.111 Withdrawal of complaints, objections, and findings;
settlement.
(a) At any time prior to the filing of objections to the findings
and/or order, a complainant may withdraw his or her complaint under any
of the statutes listed in Sec. 24.100(a) by filing a written
withdrawal with the Assistant Secretary. The Assistant Secretary will
then determine whether to approve the withdrawal. The Assistant
Secretary will notify the respondent of the approval of any withdrawal.
If the complaint is withdrawn because of settlement under the Energy
Reorganization Act, the Clean Air Act, the Safe Drinking Water Act, or
the Toxic Substances Control Act, the settlement must be submitted for
approval in accordance with paragraph (d) of this section. Parties to
settlements under the Federal Water Pollution Control Act, the Solid
Waste Disposal Act, and the Comprehensive Environmental Response,
Compensation and Liability Act are encouraged to submit their
settlements for approval.
(b) The Assistant Secretary may withdraw his or her findings and/or
order, at any time before the expiration of the 30-day objection period
described in Sec. 24.106, provided that no objection has yet been
filed, and substitute new findings and/or a new order. The date of the
receipt of the substituted findings and/or order will begin a new 30-
day objection period.
(c) At any time before the findings or order become final, a party
may withdraw his or her objections to the findings or order by filing a
written withdrawal with the administrative law judge, or, if the case
is on review, with the Board. The judge or the Board, as the case may
be, will determine whether to approve the withdrawal. If the objections
are withdrawn because of settlement under the Energy Reorganization
Act, the Clean Air Act, the Safe Drinking Water Act, or the Toxic
Substances Control Act, the settlement must be submitted for approval
in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements under the Energy Reorganization
Act, the Clean Air Act, the Safe Drinking Water Act, and the Toxic
Substances Control Act. 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 his or her consent and
achieves the consent of all three parties.
(2) Adjudicatory settlements under the Energy Reorganization Act,
the Clean Air Act, the Safe Drinking Water Act, and the Toxic
Substances Control Act. At any time after the filing of objections to
the Assistant Secretary's findings and/or order, the case may be
settled if the participating parties agree to a settlement and the
settlement is approved by the administrative law judge if the case is
before the judge, or by the Board if a timely petition for review has
been filed with the Board. A copy of the settlement must be filed with
the administrative law judge or the Board, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the
administrative law judge, or the Board will constitute the final order
of the Secretary and may be enforced pursuant to Sec. 24.113.
Sec. 24.112 Judicial review.
(a) Except as provided under paragraphs (b), (c), and (d) of this
section, within 60 days after the issuance by the Board of a final
order of the Secretary under Sec. 24.110, 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. A final order of the
Board is not subject to judicial review in any criminal or other civil
proceeding.
(b) Under the Federal Water Pollution Control Act, within 120 days
after the issuance by the Board of a final order of the Secretary under
Sec. 24.110, 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.
(c) Under the Solid Waste Disposal Act, within 90 days after the
issuance by the Board of a final order of the Secretary under Sec.
24.110, 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.
(d) Under the Comprehensive Environmental Response, Compensation
and Liability Act, after the issuance by the Board of a final order of
the Secretary under Sec. 24.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States district court in which the violation allegedly
occurred. For purposes of judicial economy and consistency, when a
final order of the Secretary issued by the Board under the
Comprehensive Environmental Response, Compensation and Liability Act
also is issued under any other statute listed in Sec. 24.100(a), the
adversely affected or aggrieved person may file a petition for review of the
entire 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. The time for filing a
petition for review of an order issued under the Comprehensive
Environmental Response, Compensation and Liability Act and any other
statute listed in Sec. 24.100(a) is determined by the time period
applicable under the other statute(s).
(e) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the administrative law
judge, will be transmitted by the Board to the appropriate court
pursuant to the local rules of the court.
Sec. 24.113 Judicial enforcement.
Whenever any person has failed to comply with an order by an
administrative law judge issued under the Energy Reorganization Act,
with the exception of any award of compensatory damages, or with a
final order of the Secretary issued by the Board, including final
orders approving settlement agreements as provided under Sec.
24.111(d), the Secretary 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. Whenever any person has
failed to comply with an order by an administrative law judge issued
under the Energy Reorganization Act, with the exception of any award of
compensatory damages, or with a final order of the Secretary issued by
the Board under either the Energy Reorganization Act or the Clean Air
Act, the person on whose behalf the order was issued also 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.
Sec. 24.114 District court jurisdiction of retaliation complaints
under the Energy Reorganization Act.
(a) If the Board has not issued a final decision within one year of
the filing of a complaint under the Energy Reorganization Act, and
there is no showing that there has been delay due to the bad faith of
the complainant, 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.
(b) Fifteen days in advance of filing a complaint in federal court,
a complainant must file with the Assistant Secretary, the
administrative law judge, or the Board, depending upon where the
proceeding is pending, a notice of his or her intention to file such
complaint. The notice must be served on all parties to the proceeding.
A copy of the notice must be served on the Regional Administrator, the
Assistant Secretary, Occupational Safety and Health Administration, and
on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, 200 Constitution Ave., NW., N 2716, Washington, DC
20210.
Sec. 24.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of this
part, or for good cause shown, the administrative law judge or the
Board on review may, upon application, after three days notice to all
parties, waive any rule or issue any orders that justice or the
administration of any of the statutes listed in Sec. 24.100(a)
requires.
Appendix A to Part 24--Your Rights Under the Energy Reorganization Act
BILLING CODE 4510-26-P
