[Federal Register Volume 87, Number 44 (Monday, March 7, 2022)]
[Rules and Regulations]
[Pages 12575-12588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04238]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1989
[Docket Number: OSHA-2020-0006]
RIN 1218-AD27
Procedures for the Handling of Retaliation Complaints Under the
Taxpayer First Act (TFA)
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: This document provides the interim final text of regulations
governing the anti-retaliation (employee protection or whistleblower)
provision of the Taxpayer First Act (TFA or the Act). This rule
establishes procedures and timeframes for the handling of retaliation
complaints under TFA, including procedures and timeframes 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. It also sets forth the Secretary's
interpretations of the TFA anti-retaliation provision on certain
matters.
DATES:
Effective date: This interim final rule is effective on March 7,
2022.
Comments due date: Comments and additional materials must be
submitted (post-marked, sent or received) by May 6, 2022.
ADDRESSES: Submit comments 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 submitting
comments.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov. 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 website. All submissions, including
copyrighted material, are available for inspection through the OSHA
Docket Office. Contact the OSHA Docket Office at (202) 693-2350 (TTY
(877) 889-5627) for assistance in locating docket submissions.
Instructions: All submissions must include the agency name and the
OSHA docket number for this Federal Register notice (OSHA-2020-0006).
OSHA will place comments and requests to speak, including personal
information, in the public docket, which may be available online.
Therefore, OSHA cautions interested parties about submitting personal
information such as Social Security numbers and birthdates. For further
information on submitting comments, see the ``Public Participation''
heading in the section of this notice titled SUPPLEMENTARY INFORMATION.
Extension of comment period: Submit requests for an extension of
the comment period on or before March 22, 2022 to the Directorate of
Whistleblower Protection Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, 200 Constitution Avenue NW,
Room N-4618, Washington, DC 20210, or by fax to (202) 693-2199 or by
email to OSHA.DWPP@dol.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Meghan Smith, Program Analyst,
Directorate of Whistleblower Protection Programs, Occupational Safety
and Health Administration, U.S. Department of Labor, Room N-4618, 200
Constitution Avenue NW, Washington, DC 20210; telephone (202) 693-2199
(this is not a toll-free number) or email: OSHA.DWPP@dol.gov. This
Federal Register publication is available in alternative formats.
SUPPLEMENTARY INFORMATION:
I. Background
The Taxpayer First Act (TFA or Act), Public Law 116-25, 133 Stat.
981, was enacted on July 1, 2019. Section 1405(b) of the Act, codified
at 26 U.S.C. 7623(d) and referred to throughout these interim final
rules as the TFA ``anti-retaliation,'' ``employee protection,'' or
``whistleblower'' provision, prohibits retaliation by an employer, or
any officer, employee, contractor, subcontractor, or agent of such
employer against an employee in the terms and conditions of employment
in reprisal for the employee having
engaged in protected activity. Protected activity under TFA includes
any lawful act done by an employee to provide information, cause
information to be provided, or otherwise assist in an investigation
regarding underpayment of tax or conduct which the employee reasonably
believes constitutes a violation of the internal revenue laws or any
provision of Federal law relating to tax fraud. To be protected, the
information or assistance must be provided to one of the persons or
entities listed in the statute, which include the Internal Revenue
Service (IRS), the Secretary of the Treasury, the Treasury Inspector
General for Tax Administration, the Comptroller General of the United
States, the Department of Justice, the United States Congress, a person
with supervisory authority over the employee, or any other person
working for the employer who has the authority to investigate,
discover, or terminate misconduct. The Act also protects employees from
retaliation in reprisal for any lawful act done to testify, participate
in, or otherwise assist in any administrative or judicial action taken
by the IRS relating to an alleged underpayment of tax or any violation
of the internal revenue laws or any provision of Federal law relating
to tax fraud. These interim final rules establish procedures for the
handling of retaliation complaints under the Act.
II. Summary of Statutory Procedures
TFA incorporates the rules, procedures, and burdens of proof set
forth in the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century (AIR21), 49 U.S.C. 42121(b), with some exceptions. Under
TFA, a person who believes that they have been discharged or otherwise
retaliated against in violation of the Act (complainant) 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) and to the
complainant's employer (which in most cases will be the 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 conduct an investigation, within 60 days of receipt
of the complaint, after affording the respondent an opportunity to
submit a written response and to meet with the investigator to present
statements from witnesses.
The Act provides that the Secretary may conduct an investigation
only if the complainant has made a prima facie showing that the
protected activity was a contributing factor in the adverse action
alleged in the complaint and the respondent has not demonstrated,
through clear and convincing evidence, that it would have taken the
same adverse action in the absence of that activity. (See Sec.
1989.104 for a summary of the investigation process.) OSHA interprets
the prima facie case requirement as allowing the complainant to meet
this burden through the complaint as supplemented by interviews of the
complainant.
After investigating a complaint, the Secretary will issue written
findings. If, as a result of the investigation, the Secretary finds
there is reasonable cause to believe that retaliation has occurred, the
Secretary must notify the complainant and respondent of those findings,
and issue a preliminary order providing all relief necessary to make
the complainant whole, including, where appropriate: Reinstatement with
the same seniority status that the complainant would have had but for
the retaliation; the sum of 200 percent of the amount of back pay and
100 percent of all lost benefits, with interest; and compensation for
any special damages sustained as a result of the retaliation, including
litigation costs, expert witness fees, and reasonable attorney fees.
The complainant and the respondent then have 30 days after the date
of receipt of the Secretary's notification in which to file objections
to the findings and/or preliminary order and request a hearing before
an Administrative Law Judge (ALJ). The filing of objections will not
stay any reinstatement order. However, under OSHA's regulations, the
filing of objections will stay any other remedy in the preliminary
order. 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 Act requires the hearing be conducted
``expeditiously.'' The Secretary then has 120 days after the conclusion
of any hearing 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
will order all relief necessary to make the complainant whole,
including, where appropriate, reinstatement with the same seniority
status that the complainant would have had, but for the retaliation;
the sum of 200 percent of the amount of back pay and 100 percent of all
lost benefits, with interest; and compensation for any special damages
sustained as a result of the retaliation, including litigation costs,
expert witness fees, and reasonable attorney fees. The Secretary also
may award a prevailing employer reasonable attorney fees, not exceeding
$1,000, if the Secretary finds that the complaint is frivolous or has
been brought in bad faith. Within 60 days of the issuance of the final
order, any person adversely affected or aggrieved by the Secretary's
final order may file an appeal with the United States Court of Appeals
for the circuit in which the violation allegedly occurred or the
circuit where the complainant resided on the date of the violation.
The Act permits the employee to bring an action for de novo review
of a TFA retaliation claim in the appropriate United States district
court in the event that the Secretary has not issued a final decision
within 180 days after the filing of the complaint. The provision
provides that the court will have jurisdiction over the action without
regard to the amount in controversy and that either party is entitled
to request a trial by jury. The Act also states that the rights and
remedies provided in the TFA anti-retaliation provision may not be
waived by any agreement, policy form, or condition of employment,
including by a predispute arbitration agreement. No predispute
arbitration agreement is valid or enforceable, if the agreement
requires arbitration of a dispute arising under the TFA anti-
retaliation provision. Finally, under the Act, nothing in the TFA anti-
retaliation provision 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.
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 the Act. Responsibility for receiving and
investigating complaints under the Act has been delegated to the
Assistant Secretary for Occupational Safety and Health (Assistant
Secretary) by Secretary of Labor's Order No. 08-2020 (May 15, 2020), 85
FR 58393 (September 18, 2020). 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. See Secretary of Labor's
Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 2020)
(Delegation of Authority and Assignment of Responsibility to the
Administrative Review Board).
Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Section 1989.100 Purpose and Scope
This section describes the purpose of the regulations implementing
the anti-retaliation provisions of TFA and provides an overview of the
procedures covered by these regulations.
Section 1989.101 Definitions
This section includes the general definitions of certain terms used
in Sec. 1405(b) of TFA, 26 U.S.C. 7623(d), which are applicable to the
Act's anti-retaliation provision. Consistent with the approach that
OSHA has taken in implementing other whistleblower protection
provisions and with applicable ARB case law, the interim final rule
defines ``employee'' as ``an individual presently or formerly working
for, an individual applying to work for, or an individual whose
employment could be affected by, another person.'' See, e.g., 29 CFR
1979.101 (AIR21 definition of employee); 29 CFR 1980.101(g) (Sarbanes-
Oxley Act of 2002 (SOX) definition of employee). In OSHA's view,
consistent with TFA's language protecting employees from retaliation
for providing information regarding ``any conduct which the employee
reasonably believes constitutes a violation of the internal revenue
laws,'' the definition of ``employee'' in the interim final rule
encompasses individuals who allege that they are employees, can show
some evidence that the respondent exercises control over the terms and
conditions of their employment or other factors tending to demonstrate
that an employer-employee relationship exists, and allege that they
have suffered retaliation for having reported that their employers have
violated tax laws by failing or refusing to make required withholdings,
deductions, and/or contributions on their behalf. See Green v. OPCON,
Inc., ARB Case No. 2018-0007, 2020 WL 2319031, at *3 (Apr. 9, 2020)
(explaining the ARB's case law applying a ``right-to-control'' test and
the common law test in Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318, 322-23 (1992)).
The interim final rule defines ``person'' as ``an individual,
partnership, company, corporation, association (incorporated or
unincorporated), trust, or estate,'' based on the definition found in
the Internal Revenue Code. See 26 U.S.C. 7701(a)(1).
Section 1989.102 Obligations and Prohibited Acts
This section describes the activities that are protected under the
Act and the conduct that is prohibited in response to any protected
activities. The Act prohibits an employer, or any officer, employee,
contractor, subcontractor, or agent of such employer from discharging,
demoting, suspending, threatening, harassing or in any other manner
retaliating against an employee in the terms and conditions of
employment in reprisal for the employee having engaged in protected
activity. Protected activity under TFA includes any lawful act by an
employee to provide information, cause information to be provided, or
otherwise assist in an investigation regarding underpayment of tax or
conduct which the employee reasonably believes constitutes a violation
of the internal revenue laws or any provision of Federal law relating
to tax fraud. To be protected, the information or assistance must be
provided to one of the persons or entities listed in the statute, which
include the IRS, the Secretary of the Treasury, the Treasury Inspector
General for Tax Administration, the Comptroller General of the United
States, the Department of Justice, the United States Congress, a person
with supervisory authority over the employee, or any other person
working for the employer who has the authority to investigate,
discover, or terminate misconduct. The Act also protects employees from
discharge or other actions in reprisal for any lawful act done to
testify, participate in, or otherwise assist in any administrative or
judicial action taken by the IRS relating to an alleged underpayment of
tax or any violation of the internal revenue laws or any provision of
Federal law relating to tax fraud. More information regarding Federal
tax laws and the IRS's regulations can be found at www.IRS.gov.
Under the Act, an employee who provides information, causes
information to be provided, or assists in an investigation is protected
as long as the employee reasonably believes that the conduct at issue
violates internal revenue laws or any provision of Federal law relating
to tax fraud. To have a reasonable belief that there is a violation of
relevant law, the employee must subjectively believe that the conduct
is a violation and that belief must be objectively reasonable. See,
e.g., Rhinehimer v. U.S. Bancorp. Invs., Inc., 787 F.3d 797, 811 (6th
Cir. 2015) (discussing the reasonable belief standard under analogous
language in the SOX whistleblower provision, 18 U.S.C. 1514A)
(citations omitted); Harp v. Charter Commc'ns, Inc., 558 F.3d 722, 723
(7th Cir. 2009) (agreeing with First, Fourth, Fifth, and Ninth Circuits
that determining reasonable belief under the SOX whistleblower
provision requires analysis of the complainant's subjective belief and
the objective reasonableness of that belief); Sylvester v. Parexel
Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25,
2011) (same). The requirement that the complainant have a subjective,
good faith belief is satisfied so long as the complainant actually
believed that the conduct at issue violated the relevant law or
regulation. See Sylvester, 2011 WL 2165854, at *11-12 (citing Harp, 558
F.3d at 723; Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir.
2009)). The objective reasonableness of a complainant's belief is
typically determined ``based on the knowledge available to a reasonable
person in the same factual circumstances with the same training and
experience as the aggrieved employee.'' Harp, 558 F.3d at 723 (quoting
Allen v. Admin. Review Bd., 514 F.3d 468, 477 (5th Cir. 2008)).
However, the complainant need not show the conduct constituted an
actual violation of law. Pursuant to this standard, an employee's
whistleblower activity is protected when it is based on a reasonable,
but mistaken, belief that a violation of the relevant law has occurred.
See Van Asdale v. Int'l Game Techs., 577 F.3d 989, 1001 (9th Cir.
2009); Allen, 514 F.3d at 477.
Section 1989.103 Filing of Retaliation Complaint
This section explains the requirements for filing a retaliation
complaint under TFA. 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), an alleged violation occurs when
the retaliatory decision has been both made and communicated to the
complainant. In other words, the limitations period commences once the
employee is aware or reasonably should be aware of the employer's
decision to take an adverse action. EEOC v. United Parcel Serv., Inc.,
249 F.3d 557, 561-62 (6th Cir. 2001). The time for filing a complaint
under TFA may be tolled for reasons warranted by applicable case law.
For example, OSHA may consider the time for filing a complaint to be tolled
if a complainant mistakenly files a complaint with an agency other than
OSHA within 180 days after an alleged adverse action. Xanthopoulos v.
U.S. Dep't of Labor, 991 F.3d 823, 832 (7th Cir. 2021) (affirming ARB's
refusal to toll the statute of limitations under SOX and explaining the
limited circumstances in which tolling is appropriate for a timely
filing in the wrong forum).
Complaints filed under TFA 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.
Section 1989.104 Investigation
This section describes the procedures that apply to the
investigation of TFA complaints. Paragraph (a) of this section outlines
the procedures for notifying the respondent, the employer (if different
from the respondent), and the IRS of the complaint and notifying the
respondent of the rights under these regulations. Paragraph (b)
describes the procedures for the respondent to submit the response to
the complaint. Paragraph (c) specifies that OSHA will request that the
parties provide each other with copies of their submissions to OSHA
during the investigation and that, if a party does not provide such
copies, OSHA generally will do so at a time permitting the other party
an opportunity to respond to those submissions. Before providing such
materials, OSHA will redact them consistent 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. TFA incorporates the burdens of proof in AIR21. Thus, in order
for OSHA to conduct an investigation, TFA requires that a complainant
make an initial prima facie showing that a protected activity was ``a
contributing factor'' in the adverse action alleged in the complaint,
i.e., that the protected activity, alone or in combination with other
factors, affected in some way the outcome of the employer's decision.
The complainant will be considered to have met the required burden for
OSHA to commence an investigation 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 at this
stage may be satisfied, for example, if the complainant shows that the
adverse action took place shortly after the protected activity.
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, as amended, (ERA) which is the same as that under TFA,
serves a ``gatekeeping function'' intended to ``stem [ ] frivolous
complaints''). Even in cases where the complainant successfully makes a
prima facie showing, TFA requires that the investigation must be
discontinued if the employer demonstrates, by clear and convincing
evidence, that it would have taken the same adverse action in the
absence of the protected activity. Thus, OSHA must dismiss the
complaint and not investigate further if either: (1) The complainant
fails to make the prima facie showing that protected activity was a
contributing factor in the alleged adverse action; or (2) the employer
rebuts that showing by clear and convincing evidence that it would have
taken the same adverse action absent the protected activity.
Assuming that an investigation proceeds beyond the gatekeeping
phase, the statute requires OSHA to determine whether there is
reasonable cause to believe that protected activity was a contributing
factor in the alleged adverse action. A contributing factor is ``any
factor which, alone or in connection with other factors, tends to
affect in any way the outcome of the decision.'' Wiest v. Tyco Elec.
Corp., 812 F.3d 319, 330 (3d Cir. 2016) (discussing ``contributing
factor standard'' under SOX); Feldman v. Law Enforcement Assocs. Corp.,
752 F.3d 339, 348 (4th Cir. 2014) (same); Lockheed Martin Corp. v.
Admin. Review Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (same). A
conclusion that protected activity was a contributing factor in an
adverse action can be based on direct evidence or circumstantial
evidence ``such as the temporal proximity between the protected
activity and the adverse action, indications of pretext such as
inconsistent application of policies and shifting explanations,
antagonism or hostility toward protected activity, the relation between
the discipline and the protected activity, and the presence [or
absence] of intervening events that independently justify'' the adverse
action. Hess v. Union Pac. R.R. Co., 898 F.3d 852, 858 (8th Cir. 2018)
(quoted source omitted) (discussing the contributing factor standard
under the Federal Railroad Safety Act).
If OSHA finds reasonable cause to believe that the alleged
protected activity was a contributing factor in the adverse action,
OSHA may not order relief if the employer demonstrates by ``clear and
convincing evidence'' that it would have taken the same action in the
absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv).
The ``clear and convincing evidence'' standard is a higher burden of
proof than a ``preponderance of the evidence'' standard. Clear and
convincing evidence is evidence indicating that the thing to be proved
is highly probable or reasonably certain. Clarke v. Navajo Express, ARB
No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011).
Paragraph (f) describes the procedures OSHA will follow prior to
the issuance of findings and a preliminary order when OSHA has
reasonable cause to believe that a violation has occurred and
reinstatement is required. Its purpose is to ensure compliance with the
Due Process Clause of the Fifth Amendment, as interpreted by the
Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987)
(requiring OSHA to give a Surface Transportation Assistance Act
respondent the opportunity to review the substance of the evidence and
respond prior to ordering preliminary reinstatement).
Section 1989.105 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 all relief
necessary to make the employee whole, including reinstatement with the
same seniority status that the complainant would have had, but for the
retaliation; the sum of 200 percent of the amount of back pay and 100
percent of all lost benefits, with interest; and compensation for any
special damages sustained as a result of the retaliation, including
litigation costs, expert witness fees, and reasonable attorney fees.
The findings and, where appropriate, preliminary order, will also
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, the preliminary order, will also advise the
respondent of the right to request an award of attorney fees not
exceeding a total of $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.
The remedies provided under TFA aim to make the complainant whole
by restoring the complainant to the position that the complainant would
have occupied absent the retaliation and to counteract the chilling
effect of retaliation on protected whistleblowing in the complainant's
workplace. The back pay, benefits, and other remedies appropriate in
each case will depend on the individual facts of the case and the
evidence submitted, and the complainant's interim earnings must be
taken into account in determining the appropriate back pay award. When
there is evidence to determine these figures, a back pay award under
TFA might include, for example, amounts that the complainant would have
earned in commissions, bonuses, overtime, or raises had the complainant
not been discharged in retaliation for engaging in protected activity
under TFA. A benefits award under TFA might include amounts that the
employer would have contributed to a 401(k) plan, insurance plan,
profit-sharing plan, or retirement plan on the complainant's behalf had
the complainant not been discharged in retaliation for engaging in
protected activity under TFA. Other damages, including non-pecuniary
damages, such as damages for emotional distress due to the retaliation,
are also available under TFA. See, e.g., Jones v. Southpeak Interactive
Corp. of Del., 777 F.3d 658, 670-71 (4th Cir. 2015) (holding that
emotional distress damages are available under identical remedial
provision in SOX); Halliburton, Inc. v. Admin. Review Bd., 771 F.3d
254, 264-66 (5th Cir. 2014) (same). Consistent with the rules under
other whistleblower statutes enforced by the Department of Labor, in
ordering interest on back pay under TFA, OSHA will compute interest due
by compounding daily the Internal Revenue Service interest rate for the
underpayment of taxes, which under 26 U.S.C. 6621(a)(2) is the Federal
short-term rate plus three percentage points, against back pay. See,
e.g., 29 CFR 1980.105(a) (SOX); 29 CFR 1982.105(a) (Federal Railroad
Safety Act (FRSA)); 29 CFR 1988.105(a) (Moving Ahead for Progress in
the 21st Century Act (MAP-21)).
Consistent with the rules governing other Department of Labor-
enforced whistleblower protection statutes, where appropriate, in
ordering back pay, OSHA will require the respondent to submit the
appropriate documentation to the Social Security Administration (SSA)
allocating the back pay to the appropriate periods. See, e.g., 29 CFR
1980.105(a) (SOX); 29 CFR 1982.105(a) (FRSA); 29 CFR 1988.105(a) (MAP-
21)).
The statute permits OSHA to preliminarily reinstate employees to
their positions if OSHA finds reasonable cause to believe that they
were discharged in violation of TFA. See 49 U.S.C. 42121(b)(2)(A). When
a violation is found, the norm is for OSHA to order immediate
preliminary reinstatement. In appropriate circumstances, in lieu of
preliminary reinstatement, OSHA may order that the complainant receive
the same pay and benefits that the complainant received prior to
termination but not actually return to work. Such ``economic
reinstatement'' is akin to an order of front pay and is sometimes
employed in cases arising under Sec. 105(c) of the Federal Mine Safety
and Health Act of 1977, which protects miners from retaliation. 30
U.S.C. 815(c); see, e.g., Sec'y of Labor, MSHA v. North Fork Coal
Corp., 33 FMSHRC 589, 2011 WL 1455831, at *4 (FMSHRC Mar. 25, 2011)
(explaining economic reinstatement in lieu of temporary reinstatement
in the context of Sec. 105(c)). Front pay has been recognized as an
appropriate remedy in cases under the whistleblower statutes enforced
by OSHA in circumstances where reinstatement would not be appropriate.
See, e.g., Deltek, Inc. v. Dep't of Labor, Admin. Rev Bd., 649 Fed.
App'x. 320, 333 (4th Cir. 2016) (affirming award of front pay in SOX
case due to ``pronounced animosity between the parties;'' explaining
that ``front pay `is designed to place the complainant in the identical
financial position' that she would have occupied had she remained
employed or been reinstated.''); Continental Airlines, Inc. v. Admin.
Review Bd., 638 Fed. App'x. 283, 289-90 at *4 (5th Cir. 2016)
(affirming front pay award under AIR21, and explaining that ``front-pay
is available when reinstatement is not possible''), aff'g Luder v.
Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB Jan.
31, 2012); see also Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-
00049, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that
while reinstatement is the ``presumptive remedy'' under SOX
whistleblower provision, front pay may be awarded as a substitute when
reinstatement is inappropriate), aff'd Lockheed Martin Corp. v. Admin.
Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (noting availability
of all relief necessary to make the employee whole in SOX case but
remanding for DOL to quantify remedies); Indiana Michigan Power Co. v.
U.S. Dep't of Labor, 278 Fed. Appx. 597, 606 (6th Cir. 2008) (affirming
front pay award under ERA). Neither an employer nor an employee has a
statutory right to choose economic reinstatement. Rather, economic
reinstatement is designed to accommodate situations in which evidence
establishes to OSHA's satisfaction that immediate reinstatement is
inadvisable for some reason, notwithstanding the employer's retaliatory
discharge of the employee.
Subpart B--Litigation
Section 1989.106 Objections to the Findings and the Preliminary Order
and Requests for a Hearing
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, in accordance with 29 CFR part 18, as applicable,
within 30 days of the receipt of the findings. The date of the
postmark, facsimile transmittal, or electronic 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 on 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). OSHA and the Associate Solicitor for Fair Labor Standards may
specify the means, including electronic means, to serve them with
copies of objections to OSHA's findings.
The timely filing of objections stays all provisions of the
preliminary order, except for the portion requiring reinstatement. A
respondent may file a motion to stay the Assistant Secretary's
preliminary order of reinstatement with the Office of Administrative
Law Judges. However, such a motion will be granted only based on
exceptional circumstances. The Secretary believes that a stay of the
Assistant Secretary's preliminary order of reinstatement under TFA
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 that the public interest favors a stay. If no
timely objection to the Assistant Secretary's findings and/or
preliminary order is filed, then the Assistant Secretary's findings
and/or preliminary order become the final decision of the Secretary not
subject to judicial review.
Section 1989.107 Hearings
This section adopts the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
as set forth in 29 CFR part 18 subpart A. This section provides that
the hearing is to commence expeditiously, except upon a showing of good
cause or unless otherwise agreed to by the parties. Hearings will be
conducted de novo, on the record. As noted in this section, formal
rules of evidence will not apply, but rules or principles designed to
assure production of the most probative evidence will be applied. The
ALJ may exclude evidence that is immaterial, irrelevant, or unduly
repetitious.
Section 1989.108 Role of Federal Agencies
The Assistant Secretary may participate as a party or amicus curiae
at any time in the administrative proceedings under TFA. For example,
the Assistant Secretary may exercise 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 the ARB. Although OSHA
anticipates that ordinarily the Assistant Secretary will not
participate, the Assistant Secretary may choose to do so in appropriate
cases, such as cases involving important or novel legal issues,
multiple employees, alleged violations that appear egregious, or where
the interests of justice might require participation by the Assistant
Secretary. The IRS, if interested in a proceeding, also may participate
as amicus curiae at any time in the proceedings.
Section 1989.109 Decisions and Orders of the Administrative Law Judge
This section sets forth the requirements for the content of the
decisions and orders of the ALJ, and includes the standard for finding
a violation under TFA. Specifically, because TFA incorporates the
burdens of proof in AIR21, the complainant must demonstrate (i.e.,
prove by a preponderance of the evidence) that the protected activity
was a ``contributing factor'' in the adverse action. See 49 U.S.C.
42121(b)(2)(B)(iii); see, e.g., Allen, 514 F.3d at 475 n.1 (``The term
`demonstrates' [under identical burden-shifting scheme in the SOX
whistleblower provision] means to prove by a preponderance of the
evidence.''). If the employee demonstrates that the alleged protected
activity was a contributing factor in the adverse action, then the
employer must demonstrate by ``clear and convincing evidence'' that it
would have taken the same action in the absence of the protected
activity. See 49 U.S.C. 42121(b)(2)(B)(iv).
Paragraph (c) of this section further provides that OSHA's
determination to dismiss the complaint without an investigation or
without a complete investigation under Sec. 1989.104 is not subject to
review. Thus, Sec. 1989.109(c) clarifies that OSHA's determinations on
whether to proceed with an investigation under TFA and whether to make
particular investigative findings are discretionary decisions not
subject to review by the ALJ. The ALJ hears cases de novo and,
therefore, as a general matter, may not remand cases to OSHA to conduct
an investigation or make further factual findings. Paragraph (d) notes
the remedies that the ALJ may order under TFA and, as discussed under
Sec. 1989.105 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(a)(2) and will be compounded daily, and that the
respondent will be required to submit appropriate documentation to the
SSA allocating any back pay award to the appropriate periods. Paragraph
(e) requires that the ALJ's decision be served on all parties to the
proceeding, OSHA, and the U.S. Department of Labor's Associate
Solicitor for Fair Labor Standards. OSHA and the Associate Solicitor
for Fair Labor Standards may specify the means, including electronic
means, for service of the ALJ's decision on them. Paragraph (e) also
provides that any ALJ decision requiring reinstatement or lifting an
order of reinstatement by the Assistant Secretary will be effective
immediately upon receipt of the decision by the respondent. All other
portions of the ALJ's order will be effective 30 days after the date of
the decision unless a timely petition for review has been filed with
the ARB. If a timely petition for review is not filed with the ARB, the
decision of the ALJ becomes the final decision of the Secretary and is
not subject to judicial review.
Section 1989.110 Decisions and Orders of the Administrative Review
Board
Upon the issuance of the ALJ's decision, the parties have 30 days
within which to petition the ARB for review of that decision. The date
of the postmark, facsimile transmittal, or electronic 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 only 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 TFA (which otherwise would be effective
immediately), while the ARB reviews the order. The Secretary believes
that a stay of an ALJ's preliminary order of reinstatement under TFA
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 that the public interest favors a stay.
If the ARB concludes that the respondent has violated the law, it
will issue an order providing all relief necessary to make the
complainant whole. The order will require, where appropriate:
Reinstatement with the same seniority status that the complainant would
have had, but for the retaliation; the sum of 200 percent of the amount
of back pay and 100 percent of all lost benefits, with interest; and
compensation for any special damages sustained as a result of the
retaliation, including litigation costs, expert witness fees, and
reasonable attorney fees. Interest on back pay will be calculated using
the interest rate applicable to underpayment of taxes pursuant to 26
U.S.C. 6621(a)(2) and will be compounded daily, and the respondent will
be required to submit appropriate documentation to the SSA allocating
any back pay award to the appropriate periods. 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 fee, not
exceeding a total of $1,000. The decision of the ARB is subject to
discretionary review by the Secretary of Labor. See Secretary of
Labor's Order, 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 2020).
As provided in that Secretary's Order, a party may petition the ARB
to refer a decision to the Secretary for further review, after which
the Secretary may accept review, decline review, or take no action. If
no such petition is filed, the ARB's decision shall become the final
action of the Department 28 calendar days after the date on which the
decision was issued. If such a petition is filed and the ARB declines
to refer the case to the Secretary, the ARB's decision shall become
final 28 calendar days after the date on which the petition for review
was filed. If the ARB refers a decision to the Secretary for further
review, and the Secretary takes no action in response to the ARB's
referral, or declines to accept the case for review, the ARB's decision
shall become final either 28 calendar days from the date of the
referral, or on the date on which the Secretary declines review,
whichever comes first.
In the alternative, under the Secretary's Order, at any point
during the first 28 calendar days after the date on which an ARB
decision was issued, the Secretary may direct the ARB to refer the
decision to the Secretary for review. If the Secretary directs the ARB
to refer a case to the Secretary, or notifies the parties that the case
has been accepted for review, the ARB's decision shall not become the
final action of the Department and shall have no legal force or effect,
unless and until the Secretary adopts the ARB's decision.
Under the Secretary's Order, any final decision made by the
Secretary shall be made solely based on the administrative record, the
petition and briefs filed with the ARB, and any amicus briefs permitted
by the Secretary. The decision shall be in writing and shall be
transmitted to the ARB, who will publish the decision and transmit it
to the parties to the case. The Secretary's decision shall constitute
final action by the Department and shall serve as binding precedent in
all Department proceedings involving the same issue or issues.
Subpart C--Miscellaneous Provisions
Section 1989.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures and time periods for
withdrawal of complaints, withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and 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 adjudicatory
stages of the case.
Section 1989.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the ARB or the ALJ to submit the record of
proceedings to the appropriate court pursuant to the rules of such
court.
Section 1989.113 Judicial Enforcement
This section describes the ability of the Secretary, the
complainant, and the respondent under TFA to obtain judicial
enforcement of orders and terms of settlement agreements. Through the
incorporation of the rules and procedures in AIR21, TFA authorizes
district courts to enforce orders issued by the Secretary under the
provisions of 49 U.S.C. 42121(b). Specifically, 49 U.S.C. 42121(b)(5)
provides that ``[w]henever any person has failed to comply with an
order issued under paragraph (3), the Secretary of Labor may file a
civil action in the United States district court for the district in
which the violation was found to occur to enforce such order. In
actions brought under this paragraph, the district courts shall have
jurisdiction to grant all appropriate relief, including injunctive
relief and compensatory damages.'' 49 U.S.C. 42121(b)(5). Similarly, 49
U.S.C. 42121(b)(6), provides that a person on whose behalf an order was
issued ``may commence a civil action against the person to whom such
order was issued to required compliance with such order'' in the
appropriate United States district court, which will have jurisdiction
without regard to the amount in controversy or the citizenship of the
parties, to enforce such order. The Secretary views these provisions as
permitting district courts to enforce both final orders of the
Secretary and preliminary orders of reinstatement for the same reasons
that the Secretary has expressed with regard to SOX, which incorporates
the rules and procedures of AIR21 using identical language to that in
TFA. See Procedures for the Handling of Retaliation Complaints Under
Sec. 806 of the Sarbanes-Oxley Act of 2002, as Amended, Final Rule, 80
FR 11865-02, 11,877 (Mar. 5, 2015) (discussing district court
enforcement of preliminary reinstatement orders under SOX); see also
Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis
v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v.
Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010);
but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir.
2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D.
Va. 2006), decision vacated, appeal dismissed, No. 06-2295 (4th Cir.
Feb. 20, 2008)).
Section 1989.114 District Court Jurisdiction of Retaliation Complaints
This section sets forth TFA's provisions allowing a complainant to
bring an original de novo action in district court, alleging the same
allegations contained in the complaint filed with OSHA, if there has
been no final decision of the Secretary within 180 days after the date
of the filing of the complaint. See 26 U.S.C. 7623(d)(2)(A)(ii). This
section also incorporates the statutory provisions that allow for a
jury trial at the request of either party in a district court action
and that specify the burdens of proof in a district court action. 26
U.S.C. 7623(d)(2)(B)(iii), (v).
This section also requires that, within seven days after filing a
complaint in district court, a complainant must provide a file-stamped
copy of the complaint to OSHA, the ALJ, or the
ARB, depending on where the proceeding is pending. If the ARB has
issued a decision that has not yet become final under Secretary of
Labor's Order 01-2020, the case is regarded as pending before the ARB
for purposes of this section and a copy of any district court complaint
should be sent to the ARB. A copy of the district court complaint also
must be provided to the OSHA official who issued the findings and/or
preliminary order, the Assistant Secretary, and the U.S. Department of
Labor's Associate Solicitor for Fair Labor Standards. This provision is
necessary to notify 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.
Finally, it should be noted that although a complainant may file an
action in district court if the Secretary has not issued a final
decision within 180 days of the filing of the complaint with OSHA, it
is the Department of Labor'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 180 days
after the filing of the complaint. Thus, for example, after the ARB has
issued a decision that has become final denying a whistleblower
complaint, the complainant no longer may file an action for de novo
review in federal district court. See Soo Line R.R., Inc. v. Admin.
Review Bd., 990 F.3d 596, 598 n.1 (8th Cir. 2021). 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 49 U.S.C. 42121(b)(4)(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).
Section 1989.115 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 TFA requires.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, section 1989.103) which was previously reviewed as a
statutory requirement of TFA and approved for use by the Office of
Management and Budget (OMB), as part of the Information Collection
Request (ICR) assigned OMB control number 1218-0236 under the
provisions of the Paperwork Reduction Act of 1995 (PRA). See 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 Sec. 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, because it provides the procedures for the handling of
retaliation complaints. Therefore, publication in the Federal Register
of a notice of proposed rulemaking and request for comments are not
required for this rule. Although this is a procedural and
interpretative rule not subject to the notice and comment procedures of
the APA, OSHA is providing persons interested in this interim final
rule 60 days to submit comments. A final rule will be published after
OSHA receives and reviews the public's comments.
Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. OSHA also finds good cause to provide an immediate
effective date for this interim final rule. It is in the public
interest that the rule be effective immediately so that parties may
know what procedures are applicable to pending cases.
VI. Executive Orders 12866, 13563, and 13771; Unfunded Mandates Reform
Act of 1995; Executive Order 13132
The Office of Information and Regulatory Affairs has concluded that
this rule is not a ``significant regulatory action'' within the meaning
of Executive Order 12866, reaffirmed by Executive Order 13563, because
it is not likely to: (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 economic impact analysis under
Sec. 6(a)(3)(C) of Executive Order 12866 has been prepared.
This rule is not an Executive Order 13771 regulatory action because
this rule is not significant under Executive Order 12866.
Also, because this rule is not significant under Executive Order
12866, and because no notice of proposed rulemaking has been published,
no statement is required under Sec. 202 of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is
procedural and interpretative in nature and is thus not expected to
have a significant economic impact. 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
therefore, is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking procedures of Sec. 553 of the
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). Rules that are exempt from APA notice and comment
requirements are also exempt from the Regulatory Flexibility Act (RFA).
See Small Business Administration Office of Advocacy, A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility Act,
at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of
agency procedure, practice, and interpretation within the meaning of 5
U.S.C. 553; and, therefore, the rule is exempt from both the notice and
comment rulemaking procedures of the
APA and the requirements under the RFA.
List of Subjects in 29 CFR Part 1989
Administrative practice and procedure, Employment, Taxation,
Whistleblower.
Authority and Signature
This document was prepared under the direction and control of
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety
and Health.
Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1989
is added to read as follows:
PART 1989--PROCEDURES FOR THE HANDLING OF RETAILIATION COMPAINTS
UNDER THE TAXPAYER FIRST ACT (TFA)
Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1989.100 Purpose and scope.
1989.101 Definitions.
1989.102 Obligations and prohibited acts.
1989.103 Filing of retaliation complaint.
1989.104 Investigation.
1989.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1989.106 Objections to the findings and the preliminary order and
requests for a hearing.
1989.107 Hearings.
1989.108 Role of Federal agencies.
1989.109 Decisions and orders of the administrative law judge.
1989.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1989.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1989.112 Judicial review.
1989.113 Judicial enforcement.
1989.114 District court jurisdiction of retaliation complaints.
1989.115 Special circumstances; waiver of rules.
Authority: 26 U.S.C. 7623(d); Secretary of Labor's Order 08-
2020 (May 15, 2020), 85 FR 58393 (September 18, 2020); Secretary of
Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6,
2020).
Subpart A--Complaints, Investigations, Findings, and Preliminary
Orders
Sec. 1989.100 Purpose and scope.
(a) This part sets forth procedures for, and interpretations of,
section 1405(b) of the Taxpayer First Act (TFA), Public Law 116-25, 133
Stat. 981 (July 1, 2019) (codified at 26 U.S.C. 7623(d)). TFA provides
for employee protection from retaliation because the employee has
engaged in protected activity pertaining to underpayment of tax or any
conduct which the employee reasonably believes constitutes a violation
of the internal revenue laws or any provision of Federal law relating
to tax fraud.
(b) This part establishes procedures under TFA 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 TFA 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. In addition, these rules provide the
Secretary's interpretations on certain statutory issues.
Sec. 1989.101 Definitions.
As used in this part:
Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom the
Assistant Secretary delegates authority under TFA.
Business days means days other than Saturdays, Sundays, and Federal
holidays.
Complainant means the person who filed a TFA complaint or on whose
behalf a complaint was filed.
Employee means an individual presently or formerly working for, an
individual applying to work for, or an individual whose employment
could be affected by, another person.
IRS means the Internal Revenue Service of the United States
Department of the Treasury.
OSHA means the Occupational Safety and Health Administration of the
United States Department of Labor.
Person means an individual, partnership, company, corporation,
association (incorporated or unincorporated), trust, or estate.
Respondent means the person named in the complaint who is alleged
to have violated TFA.
Secretary means the Secretary of Labor.
TFA means section 1405(b) of the Taxpayer First Act (TFA), Public
Law 116-25, 133 Stat. 981 (July 1, 2019) (codified at 26 U.S.C.
7623(d)).
Sec. 1989.102 Obligations and prohibited acts.
(a) No employer or any officer, employee, contractor,
subcontractor, or agent of such employer may discharge, demote,
suspend, threaten, harass, or in any other manner retaliate against,
including, but not limited to, intimidating, restraining, coercing,
blacklisting, or disciplining, an employee in the terms and conditions
of employment in reprisal for the employee having engaged in any of the
activities specified in paragraphs (b)(1) and (2) of this section.
(b) An employee is protected against retaliation (as described in
paragraph (a) of this section) by an employer or any officer, employee,
contractor, subcontractor, or agent of such employer in reprisal for
any lawful act done by the employee:
(1) To provide information, cause information to be provided, or
otherwise assist in an investigation regarding underpayment of tax or
any conduct which the employee reasonably believes constitutes a
violation of the internal revenue laws or any provision of Federal law
relating to tax fraud, when the information or assistance is provided
to the Internal Revenue Service, the Secretary of the Treasury, the
Treasury Inspector General for Tax Administration, the Comptroller
General of the United States, the Department of Justice, the United
States Congress, a person with supervisory authority over the employee,
or any other person working for the employer who has the authority to
investigate, discover, or terminate misconduct; or
(2) To testify, participate in, or otherwise assist in any
administrative or judicial action taken by the Internal Revenue Service
relating to an alleged underpayment of tax or any violation of the
internal revenue laws or any provision of Federal law relating to tax
fraud.
Sec. 1989.103 Filing of retaliation complaint.
(a) Who may file. A person who believes that they have been
discharged or otherwise retaliated against by any person in violation
of TFA may file, or have filed by any person on their behalf, a
complaint alleging such retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If the complainant is unable to file the
complaint in English, OSHA will accept the complaint in any language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the complainant resides or was employed, but may be filed with
any OSHA officer or employee. Addresses and telephone
numbers for these officials are set forth in local directories and at
the following internet address: https://www.osha.gov. Complaints may
also be filed online at https://www.osha.gov/whistleblower/WBComplaint.html.
(d) Time for filing. Within 180 days after an alleged violation of
TFA occurs, any person who believes that they have been retaliated
against in violation of TFA may file, or have filed by any person on
their behalf, a complaint alleging such retaliation. The date of the
postmark, facsimile transmittal, electronic filing or transmittal,
telephone call, hand-delivery, delivery to a third-party commercial
carrier, or in-person filing at an OSHA office will be considered the
date of filing. The time for filing a complaint may be tolled for
reasons warranted by applicable case law. For example, OSHA may
consider the time for filing a complaint to be tolled if a complainant
mistakenly files a complaint with an agency other than OSHA within 180
days after an alleged adverse action.
Sec. 1989.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA
will notify the respondent and the complainant's employer (if
different) 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, consistent
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable
confidentiality laws. OSHA will also notify the respondent of its
rights under paragraphs (b) and (f) of this section and Sec.
1989.110(e). OSHA will provide an unredacted copy of these same
materials to the complainant (or the complainant's legal counsel if
complainant is represented by counsel) and to the IRS.
(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 OSHA a written statement and any affidavits or documents
substantiating its position. Within the same 20 days, the respondent
may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party
provide the other parties to the whistleblower complaint with a copy of
submissions to OSHA that are pertinent to the whistleblower complaint.
Alternatively, if a party does not provide its submissions to OSHA to
the other party, OSHA generally will provide them to the other party
(or the party's legal counsel if the party is represented by counsel)
at a time permitting the other party an opportunity to respond. Before
providing such materials to the other party, OSHA will redact them, if
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws. OSHA will also provide each
party with an opportunity to respond to the other party's submissions.
(d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
(e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that a protected activity was a contributing
factor in the adverse action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence 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 complainant shows that the adverse
action took place shortly after the protected activity. If the required
showing has not been made, the complainant (or the complainant's legal
counsel if complainant is represented by counsel) will be so notified
and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, further investigation of
the complaint will not be conducted if the respondent demonstrates by
clear and convincing evidence that it would have taken the same adverse
action in the absence of the complainant's protected activity.
(5) If the respondent fails to make a timely response or fails to
satisfy its burden set forth in the prior paragraph, OSHA will proceed
with the investigation. The investigation will proceed whenever it is
necessary or appropriate to confirm or verify the information provided
by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1989.105, if OSHA has reasonable cause, on the
basis of information gathered under the procedures of this part, to
believe that the respondent has violated TFA and that preliminary
reinstatement is warranted, OSHA will contact the respondent (or the
respondent's legal counsel if respondent is represented by counsel) to
give notice of the substance of the relevant evidence supporting the
complainant's allegations as developed during the course of the
investigation. This evidence includes any witness statements, which
will be redacted to protect the identity of confidential informants
where statements were given in confidence; if the statements cannot be
redacted without revealing the identity of confidential informants,
summaries of their contents will be provided. The complainant will also
receive a copy of the materials that must be provided to the respondent
under this paragraph. Before providing such materials, OSHA will redact
them, if necessary, consistent 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
investigator, to present statements from witnesses in support of its
position, and to present legal and factual arguments. The respondent
must present this evidence within 10 business days of OSHA's
notification pursuant to this paragraph, or as soon thereafter as OSHA
and the respondent can agree, if the interests of justice so require.
Sec. 1989.105 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 TFA.
(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 include
all relief necessary to make the complainant whole including, where
appropriate: Reinstatement with the same seniority status that the
complainant would have had, but for the retaliation; the sum of 200
percent of the amount of back pay and 100 percent of all lost benefits,
with interest; and compensation for any special damages sustained as a
result of the retaliation, including litigation costs, expert witness
fees, and reasonable attorney fees. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621(a)(2) and will be compounded daily. Where
appropriate, the preliminary order will also require the respondent to
submit appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate periods.
(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 physical or electronic means that allow OSHA to confirm
delivery to all parties of record (or each party's legal counsel if the
party is represented by counsel). The findings and, where appropriate,
the preliminary order will inform the parties of the right to object to
the findings and/or order and to request a hearing, and of the right of
the respondent to request an award of attorney fees not exceeding
$1,000 from the ALJ, regardless of whether the respondent has filed
objections, if the respondent alleges that the complaint was frivolous
or brought in bad faith. The findings and, where appropriate, the
preliminary order, also will give the address of the Chief
Administrative Law Judge, U.S. Department of Labor, or appropriate
information regarding filing objections electronically with the Office
of Administrative Law Judges if electronic filing is available. The
findings also may specify the means, including electronic means, for
serving OSHA and the Associate Solicitor for Fair Labor Standards with
documents in the administrative litigation as required under this Part.
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. 1989.106. 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. 1989.106 Objections to the findings and the preliminary order
and requests for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and/or preliminary order, or a respondent alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney fees under TFA, 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. 1989.105. The objections and
request for hearing and/or request for attorney fees must be in writing
and must state whether the objections are to the findings, the
preliminary order, or both, and/or whether there should be an award of
attorney fees. The date of the postmark, facsimile transmittal, or
electronic 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, in accordance
with 29 CFR part 18, and copies of the objections must be served at the
same time on 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.
OSHA and the Associate Solicitor for Fair Labor Standards may specify
the means, including electronic means, for serving then with copies of
the objections.
(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. 1989.107 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 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. 1989.108 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, and the right to seek discretionary
review of a decision of the Administrative Review Board (ARB) from the
Secretary.
(2) Parties must send copies of documents to OSHA and to the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, only upon request of OSHA, or when OSHA is participating in
the proceeding, or when service on OSHA and the Associate Solicitor is
otherwise
required by these rules. Except as otherwise provided in rules of
practice and/or procedure before the OALJ or the ARB, OSHA and the
Associate Solicitor for Fair Labor Standards may specify the means,
including electronic means, for serving them with documents under this
section.
(b) The IRS, if interested in a proceeding, may participate as
amicus curiae at any time in the proceeding, at the IRS's discretion.
At the request of the IRS, copies of all documents in a case must be
sent to the IRS, whether or not it is participating in the proceeding.
Sec. 1989.109 Decisions and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that protected activity
was a contributing factor in the adverse action alleged in the
complaint.
(b) If the complainant has satisfied the burden set forth in the
prior paragraph, relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of any protected activity.
(c) Neither OSHA's determination to dismiss a complaint without
completing an investigation pursuant to Sec. 1989.104(e) nor OSHA's
determination to proceed with an investigation is subject to review by
the ALJ, and a complaint may not be remanded for the completion of an
investigation or for additional findings on the basis that a
determination to dismiss was made in error. Rather, if there otherwise
is jurisdiction, the ALJ will hear the case on the merits or dispose of
the matter without a hearing if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order providing all relief necessary to make
the complainant whole, including, where appropriate: Reinstatement with
the same seniority status that the complainant would have had, but for
the retaliation; the sum of 200 percent of the amount of back pay and
100 percent of all lost benefits, with interest; and compensation for
any special damages sustained as a result of the retaliation, including
litigation costs, expert witness fees, and reasonable attorney fees.
Interest on back pay will be calculated using the interest rate
applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will
be compounded daily. The order will also require the respondent to
submit appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate periods.
(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 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. OSHA and the Associate
Solicitor for Fair Labor Standards may specify the means, including
electronic means, for service of decisions on them under this section.
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 30 days after the date of the
decision unless a timely petition for review has been filed with the
Administrative Review ARB (ARB), U.S. Department of Labor. The decision
of the ALJ will become the final order of the Secretary unless a
petition for review is timely filed with the ARB and the ARB accepts
the petition for review.
Sec. 1989.110 Decisions and orders of the Administrative Review
Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the Administrative
Review Board (ARB or Board), which has been delegated the authority to
act for the Secretary and issue decisions under this part subject to
the Secretary's discretionary review. 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 30 days of the date of the decision of the ALJ. All
petitions and documents submitted to the ARB must be filed
electronically, in accordance with Part 26, unless another filing
method has been authorized by the ARB for good cause. The date of the
postmark, facsimile transmittal, or electronic 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. The petition for review also must be served on the Assistant
Secretary and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor. OSHA and the Associate Solicitor
for Fair Labor Standards may specify the means, including electronic
means, for service of petitions for review on them under this section.
(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 a
timely petition for review is not filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If a
timely petition for review is not filed, the resulting final order is
not subject to judicial review.
(c) The decision of the ARB will be issued within 120 days of the
conclusion of the hearing, which will be deemed to be 30 days after the
decision of the ALJ, unless a motion for reconsideration has been filed
with the ALJ in the interim. In such case, the conclusion of the
hearing is the date the motion for reconsideration is ruled upon or 30
days after a new decision is issued. The ARB's decision will be served
upon all parties and the Chief Administrative Law Judge. The 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. OSHA and the Associate
Solicitor for Fair Labor Standards may specify the means, including
electronic means, for service of ARB decisions on them under this
section.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue an order providing all relief necessary to make the
complainant whole. The order will require, where appropriate:
Reinstatement with the same seniority status that the complainant would
have had, but for the retaliation; the sum of 200 percent of the amount
of back pay and 100 percent of all lost benefits, with interest; and
compensation for any special damages sustained as a result of the
retaliation, including litigation costs, expert witness fees, and
reasonable attorney fees. Interest on back pay will be calculated using
the interest rate applicable to underpayment of taxes under 26 U.S.C.
6621(a)(2) and will be compounded daily. The order will also require
the respondent to submit appropriate documentation to the Social
Security Administration allocating any back pay award to the
appropriate periods. Such order is subject to discretionary review by
the Secretary (as provided in Secretary's Order 01-2020 or any
successor to that order).
(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 fee, not exceeding $1,000. An order
under this section is subject to discretionary review by the Secretary
(as provided in Secretary's Order 01-2020 or any successor to that
order).
Subpart C--Miscellaneous Provisions
Sec. 1989.111 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 the complaint by notifying OSHA, orally or in writing, of the
withdrawal. OSHA then will confirm in writing the complainant's desire
to withdraw and determine whether to approve the withdrawal. OSHA will
notify the parties (or 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 the 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. 1989.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
order become final, a party may withdraw objections to the Assistant
Secretary's findings and/or order by filing a written withdrawal with
the ALJ. If the case is on review with the ARB, a party may withdraw a
petition for review of an ALJ's decision at any time before that
decision becomes final by filing a written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will determine whether to approve
the withdrawal of the objections or the petition for review. If the ALJ
approves a request to withdraw objections to the Assistant Secretary's
findings and/or order, and there are no other pending objections, the
Assistant Secretary's findings and/or order will become the final order
of the Secretary. If the ARB approves a request to withdraw a petition
for review of an ALJ decision, and there are no other pending petitions
for review of that decision, the ALJ's decision will become the final
order of the Secretary. If objections or a petition for review are
withdrawn because of settlement, the settlement must be submitted for
approval in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, but before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
OSHA, the complainant, and the respondent agree to a settlement. OSHA's
approval of a settlement reached by the respondent and the complainant
demonstrates OSHA's consent and achieves the consent of all three
parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the ALJ if the case is before the ALJ, or
by the ARB if the ARB has accepted the case for review. If the
Secretary has accepted the case for discretionary review, or directed
that the case be referred for discretionary review, the settlement must
be approved by the Secretary. A copy of the settlement will be filed
with the ALJ or the ARB, as appropriate.
(e) Any settlement approved by OSHA, the ALJ, the ARB or the
Secretary will constitute the final order of the Secretary and may be
enforced in United States district court pursuant to Sec. 1989.113.
Sec. 1989.112 Judicial review.
(a) Within 60 days after the issuance of a final order for which
judicial review is available (including a decision issued by the
Secretary upon discretionary review), 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 the
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. 1989.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order issued under TFA, including one
approving a settlement agreement, 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 a preliminary order of
reinstatement or a final order issued under TFA, including one
approving a settlement agreement, a person on whose behalf the order
was issued may file a civil action seeking enforcement of the order in
the appropriate United States district court.
Sec. 1989.114 District court jurisdiction of retaliation complaints.
(a) If the Secretary has not issued a final decision within 180
days of the filing of the complaint, 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. Either party shall be entitled to a trial by jury.
(b) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec. 1989.109.
(c) Within seven days after filing a complaint in federal court, a
complainant must file with OSHA, the ALJ, or the ARB, depending on
where the proceeding is pending, a copy of the file-stamped complaint.
A copy of the complaint also must be served on the OSHA official who
issued the findings and/or preliminary order, the Assistant Secretary,
and the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor.
Sec. 1989.115 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, and after three days' notice to all parties, waive
any rule or issue such orders that justice or the administration of TFA
requires.
[FR Doc. 2022-04238 Filed 3-4-22; 8:45 am]
BILLING CODE 4510-26-P
