[Federal Register: August 31, 2010 (Volume 75, Number 168)][Rules and Regulations] [Page 53544-53558]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au10-15]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1978
[Docket Number OSHA-2008-0026]
RIN 1218-AC36
Procedures for the Handling of Retaliation Complaints Under the
Employee Protection Provision of the Surface Transportation Assistance
Act of 1982
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
amending the regulations governing employee protection (or
"whistleblower") claims under the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. 31105. The amendments clarify and improve
procedures for handling STAA whistleblower complaints and implement
statutory changes enacted into law on August 3, 2007, as part of the
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11
Commission Act), Public Law 110-53, 121 Stat. 266. These changes to the
STAA whistleblower regulations also make the procedures for handling
retaliation complaints under STAA more consistent with OSHA's
procedures for handling retaliation complaints under Section 211 of the
Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5851 and other
whistleblower provisions.
DATES: This interim final rule is effective on August 31, 2010.
Comments on the interim final rule must be submitted (postmarked, sent
or received) on or before November 1, 2010.
ADDRESSES: You may submit comments and additional materials by any of
the following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for making
electronic submissions.
Fax: If your submissions, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
Mail, hand delivery, express mail, messenger or courier service:
You must submit your comments and attachments to the OSHA Docket
Office, Docket No. OSHA-2008-0026, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries
(hand, express mail, messenger and courier service) are accepted during
the Department of Labor's and Docket Office's normal business hours,
8:15 a.m.-4:45 p.m., e.t.
Instructions: All submissions must include the agency name and the
OSHA docket number for this rulemaking (Docket No. OSHA-2008-0026).
Submissions, including any personal information you provide, are placed
in the public docket without change and may be made available online at
http:// www.regulations.gov. Therefore, OSHA cautions you about
submitting personal information such as Social Security numbers and
birth dates.
Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the address above. All documents in the docket are listed in the http:/
/www.regulations.gov index, however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through the Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT: Nilgun Tolek, Director, Office of the
Whistleblower Protection Program, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199. This is
not a toll-free number. The alternative formats available are large
print, electronic file on computer disk (Word Perfect, ASCII, Mates
with Duxbury Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
Among other provisions of the 9/11 Commission Act, section 1536
reenacted the whistleblower provision in STAA, 49 U.S.C. 31105
(previously referred to as "Section 405"), with certain amendments.
The regulatory revisions described herein reflect these statutory
changes and also seek to clarify and improve OSHA's procedures for
handling STAA whistleblower claims. To the extent possible within the
bounds of applicable statutory language, these revised regulations are
designed to be consistent with the procedures applied to claims under
other whistleblower statutes administered by OSHA, including the ERA,
the Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (AIR21), 49 U.S.C. 42121, and Title VIII of the Sarbanes-Oxley
Act of 2002 (SOX), 18 U.S.C. 1514A. Responsibility for receiving and
investigating complaints under 49 U.S.C. 31105 has been delegated to
the Assistant Secretary of Labor for Occupational Safety and Health
(Assistant Secretary) (Secretary's Order 5-2007, 72 FR 31160, June 5,
2007). Hearings on determinations by the Assistant Secretary are
conducted by the Office of Administrative Law Judges, and appeals from
decisions by administrative law judges (ALJs) are decided by the
Administrative Review Board (ARB) (Secretary's Order 1-2010 (Jan. 15,
2010), 75 FR 3924-01 (Jan. 25, 2010)).
II. Summary of Statutory Changes to STAA Whistleblower Provisions
The 9/11 Commission Act amended 49 U.S.C. 31105, and the related
definitions provision at 49 U.S.C. 31101, by making the changes
described below.
Expansion of Protected Activity
Before passage of the 9/11 Commission Act, STAA protected certain
activities related to commercial motor vehicle safety. The 9/11
Commission Act expanded STAA's coverage to commercial motor vehicle
security. In particular, 49 U.S.C. 31105(a)(1)(A) previously made it
unlawful for a person to discharge, discipline, or discriminate against
an employee regarding pay, terms, or privileges of employment because
the employee, or another person at the employee's request, filed a
complaint or began a proceeding related to a violation of a commercial
motor vehicle safety regulation, standard or order, or testified or
planned to testify in such a proceeding. The 9/11 Commission Act
expanded this provision to include complaints and proceedings related
to violations of commercial motor vehicle security regulations,
standards, and orders.
Prior to the 2007 amendments, paragraph (a)(1)(B) of STAA's
whistleblower provision prohibited a person from discharging,
disciplining, or discriminating against an employee regarding pay,
terms or privileges of employment for refusing to operate a
vehicle in violation of a regulation, standard, or order related to
commercial motor vehicle safety or health. The statute also protected
any employee who refused to operate a vehicle because he or she had a
reasonable apprehension of serious injury to himself or herself or the
public because of the vehicle's unsafe condition. The recent STAA
amendments expanded these protections to cover: (1) Any employee who
refuses to operate a vehicle in violation of regulations, standards, or
orders related to commercial motor vehicle security; and (2) any
employee who refuses to operate a vehicle because he or she has a
reasonable apprehension of serious injury to himself or herself or the
public due to the vehicle's hazardous security condition.
Before the statutory amendments, paragraph (a)(2) of STAA's
whistleblower provision provided that an employee's apprehension of
serious injury was reasonable only if a reasonable person in the
circumstances then confronting the employee would have concluded that
the "unsafe condition" of the vehicle established a real danger of
accident, injury, or serious impairment to health. Moreover, to qualify
for protection under this provision the employee had to have sought
from the employer, and been unable to obtain, correction of the
"unsafe condition." The August 2007 amendments replaced the term
"unsafe conditions" with the phrase "hazardous safety or security
conditions" throughout this paragraph.
The 9/11 Commission Act added a new paragraph to 49 U.S.C. 31105,
(a)(1)(A)(ii), making it unlawful for a person to discharge, discipline
or discriminate against an employee regarding pay, terms or privileges
of employment because of a perception that the employee has filed or is
about to file a complaint or has begun or is about to bring a
proceeding concerning a violation of a commercial motor vehicle safety
or security regulation, standard, or order. Paragraph (a)(1)(C) of 49
U.S.C. 31105 is also new and makes it unlawful to discharge,
discipline, or discriminate against an employee regarding pay, terms,
or privileges of employment because the employee accurately reports
hours on duty pursuant to 49 U.S.C. chapter 315. The recent statutory
amendments also added paragraph (a)(1)(D) to 49 U.S.C. 31105. This
paragraph prohibits discharging, disciplining or discriminating against
an employee regarding pay, terms or privileges of employment because
the employee cooperates, or is perceived as being about to cooperate,
with a safety or security investigation by the Secretary of
Transportation, the Secretary of Homeland Security, or the National
Transportation Safety Board. Finally, the 9/11 Commission Act inserted
paragraph (a)(1)(E) into 49 U.S.C. 31105. This provision prohibits a
person from discharging, disciplining, or discriminating against an
employee regarding pay, terms or privileges of employment because the
employee furnishes, or is perceived as having furnished or being about
to furnish, information to the Secretary of Transportation, the
Secretary of Homeland Security, the National Transportation Safety
Board, or any Federal, State, or local regulatory or law enforcement
agency about the facts concerning any accident or incident resulting in
injury or death to an individual or damage to property occurring in
connection with commercial motor vehicle transportation.
Legal Burdens of Proof for STAA Complaints
Prior to the 9/11 Commission Act, the parties' burdens of proof in
STAA actions were understood to be analogous to those developed for
retaliation claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq. See, e.g., Clean Harbors Envtl. Servs., Inc. v.
Herman, 146 F.3d 12, 21-22 (1st Cir. 1998); Yellow Freight Sys., Inc.
v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). The plaintiff's prima
facie case could be carried by a sufficient showing that (1) he or she
engaged in protected activity; (2) he or she suffered an adverse
action; and (3) a causal connection existed between the two events. Id.
The ARB also required proof that the employer was aware that the
employee had engaged in the protected activity. See, e.g., Baughman v.
J.P. Donmoyer, Inc., ARB No. 05-1505, ALJ No. 2005-STA-005, 2007 WL
3286335, at *3 (Admin. Review Bd. Oct. 31, 2007).
Once the complainant made this showing, an inference of retaliation
arose and the burden shifted to the employer to produce evidence of a
legitimate, non-retaliatory reason for the adverse action. Clean
Harbors, 146 F.3d at 21; Yellow Freight, 27 F.3d at 1138. If the
employer met this burden of production, the inference of retaliation
was rebutted and the burden shifted back to the complainant to show by
a preponderance of the evidence that the legitimate reason was a
pretext for unlawful retaliation. Id. Where there was evidence that the
employer acted out of mixed motives, i.e., it acted for both
permissible and impermissible reasons, the employer bore "the burden
of establishing by a preponderance of the evidence that it would have
taken the adverse employment action in the absence of the employee's
protected activity." Clean Harbors, 146 F.3d at 21-22.
The 9/11 Commission Act amended paragraph (b)(1) of 49 U.S.C. 31105
to state that STAA whistleblower complaints will be governed by the
legal burdens of proof set forth in AIR21, 49 U.S.C. 42121(b), which
contains whistleblower protections for employees in the aviation
industry. AIR21 provides that a complaint must be dismissed (and no
investigation will be conducted) unless the complainant makes a prima
facie showing that a protected activity was a contributing factor in
the adverse action described in the complaint. Notwithstanding a
finding that the complainant has made the required prima facie showing,
AIR21 states that no investigation will be conducted if the employer
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of the protected conduct. Under
AIR21, a violation may be found only if the complainant demonstrates
that protected activity was a contributing factor in the adverse action
described in the complaint. And relief is unavailable 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. See
Vieques Air Link, Inc. v. Dep't of Labor, 437 F.3d 102, 108-09 (1st
Cir. 2006) (per curiam) (burdens of proof under AIR21).
Written Notification of Complaints and Findings
Prior to the 9/11 Commission Act, STAA's whistleblower provision
required the Secretary of Labor (Secretary) to notify persons when
complaints were filed against them. The statute has now been amended at
paragraph (b)(1) to clarify that this notice must be in writing.
Similarly, the 9/11 Commission Act amended paragraph (b)(2)(A) of 49
U.S.C. 31105 to clarify that the Secretary's findings must be in
writing.
Expansion of Remedies
Paragraph (b)(3)(A) of 49 U.S.C. 31105 previously compelled the
Secretary, upon finding a violation of STAA's whistleblower provision,
to order the employer to take affirmative abatement action, reinstate
the complainant to his or her former position with the same pay and
terms and privileges of employment, and pay compensatory damages,
including backpay. The 9/11 Commission Act amended paragraph
(b)(3)(A)(iii) to reflect existing law on damages in STAA whistleblower
cases and expressly provide for the award of interest on backpay as
well as compensation for any special damages sustained as a result of
the unlawful discrimination, including litigation costs, expert witness
fees, and reasonable attorney fees. The 2007 amendments also added a
new provision to 49 U.S.C. 31105, paragraph (b)(3)(C), authorizing
punitive damage awards of up to $250,000.
De Novo Review
The August 2007 amendments added paragraph (c) to 49 U.S.C. 31105.
That paragraph provides for de novo review of a STAA whistleblower
claim by a United States district court in the event that the Secretary
has not issued a final decision within 210 days after the filing of a
complaint and the delay is not due to the complainant's bad faith. The
provision provides that the court will have jurisdiction over the
action without regard to the amount in controversy and that the case
will be tried before a jury at the request of either party.
Preemption and Employee Rights
The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at
paragraph (f) clarifying that nothing in the statute preempts or
diminishes any other safeguards against discrimination provided by
Federal or State law. The 2007 amendments to STAA also added a
provision at paragraph (g) in 49 U.S.C. 31105 stating that nothing in
STAA 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. New paragraph (g) further states that rights and
remedies under 49 U.S.C. 31105 "may not be waived by any agreement,
policy, form, or condition of employment."
Miscellaneous Provisions
The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at
paragraph (h) regarding the circumstances in which the Secretary of
Transportation and the Secretary of Homeland Security may disclose the
names of employees who have provided information about certain alleged
violations. In addition, the amendments added a new paragraph (i) to 49
U.S.C. 31105, which provides that the Secretary of Homeland Security
will establish a process by which any person may report motor carrier
vehicle security problems, deficiencies or vulnerabilities. Neither of
these amendments significantly impacts OSHA's handling of whistleblower
complaints under STAA.
Definition of "Employee"
Definitions applicable to STAA are found at 49 U.S.C 31101. That
section defines "employee" as a driver of a commercial motor vehicle
(including an independent contractor when personally operating a
commercial motor vehicle), a mechanic, a freight handler, or an
individual not an employer, who (i) directly affects commercial motor
vehicle safety in the course of employment by a commercial motor
carrier; and (ii) is not an employee of the Federal, State or local
government acting in the course of employment. The 9/11 Commission Act
incorporated this definition into the whistleblower section of STAA, 49
U.S.C. 31105, at paragraph (j), and expanded it to include employees
who directly affect commercial motor vehicle security in the course of
employment by a commercial motor carrier.
III. Summary and Discussion of Regulatory Provisions
The regulatory provisions in this part are being revised to reflect
the 9/11 Commission Act's amendments to STAA, to clarify and improve
the procedures for handling STAA whistleblower cases, and, to the
extent possible within the bounds of applicable statutory language, to
be consistent with regulations implementing the whistleblower
provisions of the following statutes, among others, that are also
administered and enforced by OSHA: the Safe Drinking Water Act, 42
U.S.C. 300j-9(i); the Federal Water Pollution Control Act, 33 U.S.C.
1367; the Toxic Substances Control Act, 15 U.S.C. 2622; the Solid Waste
Disposal Act, 42 U.S.C. 6971; the Clean Air Act, 42 U.S.C. 7622; the
ERA; and the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9610, all regulations for these
statutory provisions jointly codified at 29 CFR part 24; AIR21,
codified at 29 CFR part 1979; SOX, codified at 29 CFR part 1980; and
the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, codified
at 29 CFR part 1981. The section numbers of these STAA regulations have
been changed to correspond as closely as possible with the numbering in
the regulations implementing other whistleblower statutes administered
by OSHA.
These regulatory amendments incorporate two nonsubstantive changes
in terminology. First, cases brought under the whistleblower provisions
of STAA will now be referred to as actions alleging "retaliation"
rather than "discrimination." This change in terminology, which has
already been made in the regulations implementing the ERA and the other
whistleblower statutes covered by 29 CFR part 24, is not intended to
have substantive effect. It simply reflects the fact that claims
brought under these whistleblower provisions are prototypical
retaliation claims. A retaliation claim is a specific type of
discrimination claim that focuses on actions taken as a result of an
employee's protected activity rather than as a result of an employee's
characteristics (e.g., race, gender, or religion).
Second, these regulations previously referred to persons named in
STAA whistleblower complaints as "named persons," but in the revised
regulations they will be referred to as "respondents." Again, this
change is not intended to have any substantive impact on the handling
of STAA whistleblower cases. This revision simply reflects a preference
for more conventional terminology.
Section 1978.100 Purpose and Scope
This section describes the purpose of the regulations implementing
STAA's whistleblower provision and provides an overview of the
procedures contained in the regulations. Paragraph (a) of this section
is being revised to include an updated citation reference to the
correct section of the United States Code where STAA's whistleblower
provision is located and to reflect the recent statutory amendments
extending coverage to activities pertaining to commercial motor vehicle
security matters. Minor editorial edits are being made to paragraph (b)
of this section.
Section 1978.101 Definitions
This section includes general definitions applicable to STAA's
whistleblower provision. The definitions are being reorganized in
alphabetical order and minor edits are being made to cleanup or clarify
existing regulatory text.
A new definition of "business days" is being added at paragraph
(c) to clarify that that term means days other than Saturdays, Sundays,
and Federal holidays. This definition is consistent with 29 CFR
1903.22(c), an OSHA regulation interpreting the analogous term
"working days" in section 10 of the Occupational Safety and Health
Act (OSH Act), 29 U.S.C. 659, in the same way.
The regulations previously defined "commercial motor carrier" as
a person who satisfied the definitions of "motor carrier" and "motor
private carrier" in 49 U.S.C. 10102(13) and 10102(16). Those statutory
references are out of date and are being replaced with: "Commercial motor
carrier means any person engaged in a business affecting commerce between
States or between a State and a place outside thereof who owns or leases a
commercial motor vehicle in connection with that business, or assigns
employees to operate such a vehicle." The new definition of
"commercial motor carrier" reflects the Secretary's longstanding
practice of giving that phrase expansive meaning, i.e., including
within its reach all motor carriers in or affecting commerce. See,
e.g., Arnold v. Associated Sand and Gravel Co., Case No. 92-STA-19,
1992 WL 752791, at *3 (Office Admin. Appeals, Aug. 31, 1992)
(appropriate to give the term "commercial" its legal meaning;
"legislative history of the STAA * * * additionally militates in favor
of construing the term expansively to describe motor carriers `in' or
`affecting' commerce"). In addition, the revised definition of
"commercial motor carrier" is more consistent with the statutory
definition of "employer." See 49 U.S.C. 31101(3).
The statutory definition of "commercial motor vehicle" is being
added to this section at paragraph (e), and the definition of
"employee", now at paragraph (h), is being revised to reflect the
statutory amendment expanding coverage to individuals whose work
directly affects commercial motor vehicle security. In addition, the
statutory definitions of "employer" and "State" are being added to
this section at paragraphs (i) and (n) respectively, and a new
paragraph is being added at the end of this section to clarify that any
future statutory amendments will govern in lieu of the definitions
contained in section 1978.101. A new definition of "complaint" is
being added to this section at paragraph (g) to clarify the scope of
activities protected by STAA's whistleblower provisions. See discussion
of 1978.102 (Obligations and prohibited acts) below.
Section 1978.102 Obligations and Prohibited Acts
This new section describes the activities that are protected under
STAA and the conduct that is prohibited in response to any protected
activities. Insertion of this new section resulted in the renumbering
of many subsequent sections.
Among other prohibited acts, it is unlawful under STAA for an
employer to retaliate against an employee because the employee, or
someone acting pursuant to the employee's request, has filed a
complaint related to a violation of a commercial motor vehicle safety
or security regulation, standard or order. 49 U.S.C. 31105(a)(1)(A)(i).
STAA's whistleblower provision also protects employees who the employer
perceives as having filed or being about to file such a complaint. 49
U.S.C. 31105(a)(1)(A)(ii). The Secretary has long taken the position
that these provisions of STAA, as well as similarly worded provisions
in other whistleblower statutes enforced by OSHA, cover both written
and oral complaints to the employer or a government agency. See, e.g.,
Harrison v. Roadway Express, Inc., No. 00-048, 2002 WL 31932546, at *4
(Admin. Review Bd. Dec. 31, 2002) ("[C]omplaints about violations of
commercial motor vehicle regulations may be oral, informal or
unofficial."), aff'd on other grounds, 390 F.3d 752 (2d Cir. 2004);
see also, e.g., Calhoun v. Dep't of Labor, 576 F.3d 201, 212 (4th Cir.
2009) (citing Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th
Cir. 1993) for the proposition that "written or oral" complaints can
be protected under STAA); Power City Elec., Inc., No. C-77-197, 1979 WL
23049, at *2 (E. D. Wash. Oct. 23, 1979) (noting that the term
"filed", as used in Section 11(c) of the OSH Act, "is not limited to
a written form of complaint."). It is particularly important for STAA
to cover oral as well as written complaints because in many cases truck
drivers are out on the road and the only way they can communicate
immediate concerns about violations of safety and security regulations
is via CB radio or phone. For these reasons, sections 1978.102(b)(1)
and 1978.102(e)(1) are intended to cover the filing of written and oral
complaints with employers or government agencies, and a definition of
the term "complaint," reflecting this intent, has been added to
section 1978.101.
Section 1978.103 Filing of Retaliation Complaints
This section (formerly section 1978.102) is being revised to make
it more consistent with the regulatory procedures for other OSHA-
administered whistleblower laws.
Complaints filed under STAA's whistleblower provision need not be
in any particular form. Complainants have always been permitted to file
STAA whistleblower complaints either orally or in writing. In light of
this longstanding practice, OSHA will continue to accept STAA
whistleblower complaints in either oral or written form. Allowing STAA
whistleblower complaints to be filed orally is also consistent with
OSHA's practice in whistleblower cases under Section 11(c) of the OSH
Act, 29 U.S.C. 660(c); Section 211 of the Asbestos Hazard Emergency
Response Act (AHERA), 15 U.S.C. 2651; and Section 7 of the
International Safe Container Act (ISCA), 46 U.S.C. 80507. And the final
regulations implementing the ERA and the other whistleblower statutes
covered by 29 CFR part 24 permit the filing of oral as well as written
complaints. Language has been added to paragraph (b) to clarify that
when a complaint is made orally, OSHA will reduce the complaint to
writing. In addition, paragraph (b) is being updated to provide that if
an employee is not able to file a complaint in English, OSHA will
accept the complaint in any language.
Language has been added to paragraph (d) to clarify the date on
which a complaint will be considered "filed," i.e., the date of
postmark, facsimile transmittal, e-mail communication, telephone call,
hand-delivery, delivery to a third-party commercial carrier, or in-
person filing at an OSHA office.
Provisions in former paragraph (d) dealing with tolling of the 180-
day period for the filing of STAA whistleblower complaints have been
deleted for consistency with other OSHA whistleblower regulations,
which do not contain this language. This revision is not intended to
change the way OSHA handles untimely complaints under any whistleblower
laws. A new sentence in the regulatory text clarifies that filing
deadlines may still be tolled based on principles developed in
applicable case law. See, e.g., Donovan v. Hahner, Foreman & Harness,
Inc., 736 F.2d 1421, 1423-29 (10th Cir. 1984).
Finally, paragraph (e), "Relationship to Section 11(c)
complaints," has been revised to conform to similar provisions
implementing other OSHA whistleblower programs and to more clearly
describe the relationship between Section 11(c) complaints and STAA
whistleblower complaints. Section 11(c) of the OSH Act generally
prohibits employers from retaliating against employees for filing
safety or health complaints or otherwise initiating or participating in
proceedings under the OSH Act. In some circumstances an employee
covered by STAA may engage in activities that are protected under both
STAA and Section 11(c) of the OSH Act. For example, a freight handler
loading cargo onto a commercial motor vehicle may complain about both
the overloading of that vehicle (a safety complaint protected by STAA)
and also about an unsafe forklift (a safety complaint
covered by the OSH Act). In practice, OSHA would investigate whether
either or both of these protected activities caused the firing.
Paragraph (e) now clarifies that STAA whistleblower complaints that
also allege facts constituting an 11(c) violation will be deemed to
have been filed under both statutes. Similarly, Section 11(c)
complaints that allege facts constituting a violation of STAA's
whistleblower provision will also be deemed to have been filed under
both laws. In these cases, normal procedures and timeliness
requirements under the respective statutes and regulations will be
followed.
Section 1978.104 Investigation
This section (formerly section 1978.103) has been revised to more
closely conform to the regulations implementing other whistleblower
provisions administered by OSHA. Former paragraph (f) in section
1978.102, which deals with the notice sent to employers when complaints
are filed against them, is being moved to paragraph (a) in section
1978.104, where it more appropriately appears under the
"Investigation" heading. In addition, minor revisions are being made
to that paragraph to be more consistent with similar provisions in
other OSHA whistleblower regulations. Of particular note, new language
is being added requiring OSHA to send the Federal Motor Carrier Safety
Administration (FMCSA) a copy of the notice that goes to the employer.
This has been standard practice in any event.
Former section 1978.103(a), which simply stated that OSHA would
investigate and gather data as it deemed appropriate, is being deleted
as unnecessary. Paragraph (b) is being revised to conform to other OSHA
whistleblower regulations. Language describing the persons who can be
present and the issues that can be addressed at OSHA's meetings with
respondents is being deleted, but this is not intended to change the
manner in which OSHA conducts these meetings.
A new paragraph (c) specifies that throughout the investigation the
agency will provide to the complainant (or the complainant's legal
counsel if the complainant is represented by counsel) a copy of all of
respondent's submissions to the agency that are responsive to the
complainant's whistleblower complaint. Before providing such materials
to the complainant, the agency will redact them in accordance with the
Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable
confidentiality laws. The agency expects that sharing information with
complainants in accordance with this new provision will enhance OSHA's
ability to conduct full and fair investigations and permit the
Assistant Secretary to more thoroughly assess defenses raised by
respondents.
A new paragraph (d) addresses confidentiality in investigations. In
addition, a new paragraph is being added to this section at paragraph
(e), which incorporates the AIR21 burdens of proof that were carried
over to STAA's whistleblower provision by the 9/11 Commission Act. This
paragraph generally conforms to similar provisions in the regulations
implementing the AIR21 and ERA whistleblower laws. All of these
statutes now require that a complainant make an initial prima facie
showing that protected activity was "a contributing factor" in the
adverse action alleged in the complaint, i.e., that the protected
activity, alone or in combination with other factors, affected in some
way the outcome of the employer's decision. The complainant will be
considered to have met the required burden if the complaint on its
face, supplemented as appropriate through interviews of the
complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing. Complainant's
burden may be satisfied, for example, if he or she shows that the
adverse action took place shortly after protected activity, giving rise
to the inference that it was a contributing factor in the adverse
action. Language from some of OSHA's other whistleblower regulations,
including those implementing AIR21 and ERA, setting forth specific
elements of the complainant's prima facie case has been carried over
into these regulations, although it has been modified slightly to
reflect the new provisions in STAA specifically protecting employees
who are "perceived" as having engaged in certain conduct. See Reich
v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) ("Construing Sec.
11(c), the OSH Act's anti-retaliation provision, to protect employees
from adverse employment actions because they are suspected of having
engaged in protected activity is consistent with * * * the specific
purposes of the anti-retaliation provisions.").
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 ERA, which is the
same framework now found in the AIR21 law and STAA, served a
"gatekeeping function" that "stemm[ed] frivolous complaints"). Even
in cases where the complainant successfully makes a prima facie
showing, the investigation must be discontinued if the employer
demonstrates, by clear and convincing evidence, that it would have
taken the same adverse action in the absence of the protected activity.
Thus, OSHA must dismiss a complaint under STAA and not investigate (or
cease investigating) if either: (1) The complainant fails to meet the
prima facie showing that protected activity or, where covered by STAA,
the perception of protected activity, was a contributing factor in the
adverse action; or (2) the employer rebuts that showing by clear and
convincing evidence that it would have taken the same adverse action
absent the protected activity or the perception thereof.
Former section 1978.103(c) is being moved to paragraph (f) of this
section. Minor revisions are being made to this paragraph to conform to
similar paragraphs in the regulations implementing the AIR21 and SOX
whistleblower provisions. This includes allowing ten business days
(rather than five days) for the respondent to present evidence in
support of its position against an order of preliminary reinstatement.
Section 1978.105 Issuance of Findings and Preliminary Orders
Former paragraph (a) in section 1978.104, now at paragraph (a) in
this section, is being updated to reflect the recent amendments to STAA
expanding available remedies. If the Assistant Secretary concludes that
there is reasonable cause to believe that a violation has occurred, he
or she will order appropriate relief, including preliminary
reinstatement. In appropriate circumstances, in lieu of preliminary
reinstatement, OSHA may order that the complainant receive the same pay
and benefits that he or she received prior to his or her termination,
but not actually return to work. Such "economic reinstatement" is
employed in cases arising under Section 105(c) of the Federal Mine
Safety and Health Act of 1977. See, e.g., Secretary of Labor on behalf
of York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1
(June 26, 2001). Congress intended that complainants be preliminarily
reinstated to their positions if OSHA finds reasonable cause that they
were discharged in violation of STAA's whistleblower provision. When a
violation is found, the norm is for OSHA to order immediate,
preliminary reinstatement. An employer does not have a statutory right
to choose economic reinstatement. Rather, economic reinstatement is designed
to accommodate situations in which evidence establishes to OSHA's
satisfaction that reinstatement is inadvisable for some reason,
notwithstanding the employer's retaliatory discharge of the
complainant. In such situations, actual reinstatement might be delayed
until after the administrative adjudication is completed as long as the
complainant continues to receive his or her pay and benefits and is not
otherwise disadvantaged by a delay in reinstatement. There is no
statutory basis for allowing the employer to recover the costs of
economically reinstating a complainant should the employer ultimately
prevail in the whistleblower litigation.
A new provision is being added at paragraph (a)(2) of this section
requiring the Assistant Secretary to notify the parties if it finds
that a violation has not occurred. Former section 1978.104(c), which
provided for the suspension of 11(c) complaints pending the outcome of
STAA proceedings, is being deleted. As described above, section
1978.103(e) now adequately describes the relationship between STAA and
11(c) complaints.
Paragraph (b) is being revised to clarify that OSHA need not send
the original complaint to the Chief Administrative Law Judge when it
issues its findings and preliminary order; a copy of the complaint will
suffice. Former section 1978.105(b)(1) is being moved to section
1978.105(c). This paragraph states that the Assistant Secretary's
preliminary order will be effective 30 days after receipt, or on the
compliance date set forth in the preliminary order, whichever is later,
unless an objection is filed. It also clarifies that any preliminary
order requiring reinstatement will be effective immediately. This
paragraph mirrors existing provisions in other OSHA whistleblower
regulations.
Subpart B--Litigation
Section 1978.106 Objections to the Findings and the Preliminary Order
and Request for a Hearing
Minor revisions are being made to paragraph (a), formerly section
1978.105(a), to conform to other OSHA whistleblower regulations. The
new paragraph now clarifies that with respect to objections to the
findings and preliminary order, the date of the postmark, fax, or e-
mail communication 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 is also
considered a request for a hearing before an ALJ. The amended language
also clarifies that in addition to filing objections with the Chief
Administrative Law Judge, the parties must serve a copy of their
objections on the other parties of record, the OSHA official who issued
the findings and order, the Assistant Secretary, and the Associate
Solicitor for Occupational Safety and Health. A failure to serve copies
of the objections on the appropriate parties 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, ALJ No. 2004-
ERA-9, 2005 WL 2865915, at *7 (Admin. Review Bd. Oct. 31, 2005).
The title to former section 1978.105(b) is being deleted because it
is unnecessary. In addition, as previously mentioned, former paragraph
(b)(1) in section 1978.105 is being moved to new paragraph (c) in
section 1978.105. Finally, some minor, nonsubstantive revisions are
being made to former 1978.105(b)(2), now at 1978.106(b), and additional
language is being added to that paragraph to clarify that all
provisions of the ALJ's order, with the exception of any order for
preliminary reinstatement, will be stayed upon the filing of a timely
objection. The respondent may file a motion for a stay of a preliminary
reinstatement order.
Section 1978.107 Hearings
Former section 1978.106, which has become section 1978.107, was
titled "Scope of rules; applicability of other rules; notice of
hearing." The title is being changed to "Hearings," the title
assigned to similar sections in other OSHA whistleblower regulations.
Minor revisions are being made to paragraph (a), which adopts the
rules of practice and procedure and the rules of evidence for
administrative hearings before the Office of Administrative Law Judges,
codified at 29 CFR part 18. Changes are also being made to paragraph
(b) to conform to other OSHA whistleblower regulations. The
requirements for the ALJ to set a hearing date within seven days, and
to commence a hearing within 30 days, have been deleted, and new
language is being added to clarify that hearings will commence
expeditiously and be conducted de novo and on the record. The new
language is not intended to change current case-handling practices.
Paragraph (c), which deals with situations in which both the
complainant and the respondent object to the findings and/or
preliminary order, is being revised, consistent with the changes made
to paragraph (b), to remove language stating that hearings shall
commence within 30 days of the last objection received.
Former paragraph (d), dealing with the ALJ's discretion to order
the filing of prehearing statements, is being deleted as unnecessary.
Section 1978.108 Role of Federal Agencies
Former section 1978.107, titled "Parties," is now at section
1978.108 with the new title "Role of Federal agencies." This conforms
to the terminology used in OSHA's other whistleblower regulations.
Former paragraphs (a), (b), and (c) in section 1978.107 are now
combined in section 1978.108(a)(1). The changes made to these
paragraphs are not intended to be substantive, i.e., there is no intent
to change the rights to party status currently afforded the Assistant
Secretary, complainants, or respondents. The Assistant Secretary,
represented by an attorney from the appropriate Regional Solicitor's
Office, will still generally assume the role of prosecuting party in
STAA whistleblower cases in which the respondent objects to the
findings or preliminary order. This continues longstanding practice in
STAA cases and the Secretary believes that the public interest
generally requires the Assistant Secretary's continued participation in
such matters. It has been the Secretary's experience that relatively
few private attorneys have developed adequate expertise in representing
STAA whistleblower complainants and that complainants in the motor
carrier industry have been more likely to proceed pro se than employees
covered by OSHA's other whistleblower programs. Where the complainant,
but not the respondent, objects to the findings or order, the
regulations retain the Assistant Secretary's discretion to participate
as a party or amicus curiae at any stage of the proceedings, including
the right to petition for review of an ALJ decision.
A new paragraph (a)(2) clarifies that if the Assistant Secretary
assumes the role of prosecuting party in accordance with paragraph
(a)(1), he or she may, upon written notice to the other parties,
withdraw as the prosecuting party in the exercise of prosecutorial
discretion. If the Assistant Secretary withdraws, the complainant will
become the prosecuting party and the ALJ will issue appropriate orders
to regulate the course of future proceedings. Section 1978.111(d)(3)
(discussed below) retains language clarifying that the Assistant
Secretary may decline the role of prosecuting party if the complainant
rejects a reasonable settlement offer.
New paragraphs (a)(3) and (b) are being added to this section.
Paragraph (a)(3) simply provides that in all cases in which the
Assistant Secretary is participating in the proceeding, copies of
documents must be sent to the Assistant Secretary and the Associate
Solicitor for Occupational Safety and Health, as well as to all other
parties. In cases in which the Assistant Secretary is not a party,
copies of documents must be sent to the Assistant Secretary and all
parties, but not to the Associate Solicitor.
Paragraph (b) states that the FMCSA may participate in the
proceedings as amicus curiae at its own discretion. This paragraph also
permits the FMCSA to request copies of all documents, regardless of
whether it is participating in the case. This provision mirrors similar
language in the regulations implementing other OSHA-administered
whistleblower laws.
The provisions formerly at section 1978.108, which described the
manner in which STAA whistleblower cases would be captioned or titled,
are being deleted. It is unnecessary to continue to include that
material in these regulations.
Section 1978.109 Decision and Orders of the Administrative Law Judge
This section sets forth the content of the decision and order of
the ALJ, and includes the standards for finding a violation under
STAA's whistleblower provision. The title of this section is being
revised to conform to the title assigned to similar provisions in other
OSHA whistleblower regulations. Previously, section 1978.109 addressed
decisions of both the ALJs and the ARB. In conformance with other OSHA
whistleblower regulations, these two topics are now being separated
into individual sections. Section 1978.109 now covers only ALJ
decisions and section 1978.110 addresses ARB decisions.
Former paragraph (a) is being divided among multiple paragraphs in
this section and otherwise revised to reflect the parties' new burdens
of proof and to conform more closely to the regulations implementing
other OSHA-administered whistleblower laws. In litigation, the
statutory burdens of proof require a complainant to prove that the
alleged protected activity or, when covered by STAA, the perception of
protected activity, was a "contributing factor" in the alleged
adverse action. If the complainant satisfies his or her burden, the
employer, to escape liability, must prove by "clear and convincing
evidence" that it would have taken the same action in the absence of
the protected activity or the perception thereof.
A contributing factor is "any factor which, alone or in connection
with other factors, tends to affect in any way the outcome of the
decision." Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir.
1993) (Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)). In proving
that protected activity was a contributing factor in the adverse
action, "a complainant need not necessarily prove that the
respondent's articulated reason was a pretext in order to prevail,"
because a complainant alternatively can prevail by showing that the
respondent's "reason, while true, is only one of the reasons for its
conduct," and that another reason was a prohibited one. See
Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, ALJ No.
04-SOX-11, 2006 WL 3246904, at *13 (Admin. Review Bd. May 31, 2006)
(discussing contributing factor test under SOX) (citing Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
The AIR21 burdens of proof, now incorporated in STAA, do not
address the evidentiary standard that applies to a complainant's proof
that protected activity was a contributing factor in an adverse action.
AIR 21 simply provides that the Secretary may find a violation only
"if the complainant demonstrates" that protected activity was a
contributing factor in the alleged adverse action. 49 U.S.C.
42121(b)(2)(B)(iii). It is the Secretary's position that the
complainant must prove by a "preponderance of the evidence" that his
or her protected activity or, when covered by STAA, the perception of
protected activity, contributed to the adverse action at issue;
otherwise, the burden never shifts to the employer to establish its
defense by clear and convincing evidence. See, e.g., Allen v. Admin.
Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) ("The term
`demonstrates' means to prove by a preponderance of the evidence.").
Once the complainant establishes that protected activity was a
contributing factor in an adverse action, the employer can escape
liability only by proving by clear and convincing evidence that it
would have reached the same decision even in the absence of the
protected activity. The clear and convincing evidence standard is a
higher burden of proof than a preponderance of the evidence standard.
The requirement that the ALJ issue a decision within 30 days after
the close of the record, and the related provision requiring the ALJ to
close the record within 30 days after the filing of the objection, have
been eliminated because procedures for issuing decisions, including
their timeliness, are addressed by the Rules of Practice and Procedure
for Administrative Hearings Before the Office of Administrative Law
Judges at 29 CFR 18.57.
New section 1978.109(c), which is similar to provisions in other
OSHA whistleblower regulations, provides that the Assistant Secretary's
determinations about when to proceed with an investigation and when to
dismiss a complaint without completing an investigation are
discretionary decisions not subject to review by the ALJ. The ALJ hears
cases de novo and, therefore, as a general matter, may not remand cases
to the Assistant Secretary to conduct an investigation or make further
factual findings. If there otherwise is jurisdiction, the ALJ will hear
the case on the merits or dispose of the matter without a hearing if
warranted by the facts and circumstances.
1978.109(d)(1) now describes the relief the ALJ can award upon
finding a violation and reflects the recent statutory amendments. (See
earlier discussion of section 1978.105(a).) In addition, new paragraph
(d)(2) in this section requires the ALJ to issue an order denying the
complaint if he or she determines that the respondent has not violated
STAA.
Previously under these regulations, ALJs' decisions and orders were
subject to automatic review by the ARB. These procedures were unique to
STAA whistleblower cases and resulted in a heavy STAA caseload for the
ARB. This has made it more difficult for the ARB to promptly resolve
the cases on its docket and has delayed the resolution of STAA cases in
which the parties are mutually satisfied with the ALJ's decision and
order. Overall, requiring mandatory ARB review of every STAA
whistleblower case is an inefficient use of limited resources. In
conformance with the procedures used under the other whistleblower
provisions administered by OSHA and adjudicated by ALJs, these
regulations are being revised to provide for ARB review of an ALJ's
decision only if one or more of the parties to the case files a
petition requesting such review. These new procedures for review of ALJ
decisions will apply to all ALJ decisions issued on or after the
effective date of these regulations.
Former section 1978.109(b) is being deleted, although much of its
content is being moved to paragraph (e). New section 1978.109(e), which
borrows language from similar provisions in other OSHA whistleblower
regulations, gives parties ten business days after the date of the
ALJ's decision to file a petition for review with the ARB. If no
petition for review is filed within that timeframe, the ALJ's decision
is final and all portions of the order become effective. New paragraph
(e), in addition to giving parties ten business days to seek review
before the ARB, clarifies that any orders relating to reinstatement
will be effective immediately upon receipt of the decision by the
respondent.
All of the provisions in former section 1978.109, which codified
the automatic review process, primarily former paragraphs (c)(1) and
(c)(2), are being deleted. The content of former paragraph (c)(3),
regarding the standard for ARB review of ALJ decisions, is being moved
to new section 1978.110(b). The content of former paragraph (c)(4),
which required the ARB to issue an order denying the complaint if it
determined that the respondent had not violated the law, is now at
section 1978.110(e). Former paragraph (c)(5), which required service of
the ARB decision on all parties, has become a part of new section
1978.110(c).
Section 1978.110 Decision and Orders of the Administrative Review Board
This is a new section, borrowed largely from existing regulations
implementing other OSHA whistleblower laws. In accordance with the
decision to discontinue automatic ARB review of ALJ decisions,
paragraph (a) of this section gives the parties ten business days from
the date of the ALJ's decision to file a petition for review with the
ARB. The decision of the ALJ becomes the final decision of the
Secretary, and is not subject to judicial review, if no timely petition
for review is filed. Paragraph (a) also clarifies that the date of the
postmark, fax, e-mail communication, or hand-delivery will be deemed
the date of filing; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt.
Consistent with the procedures for ARB appeals under other OSHA-
administered whistleblower laws, paragraph (b) provides that the ARB
has discretion to accept or reject review in STAA whistleblower cases.
Congress intended these whistleblower actions to be expedited, as
reflected by the recent amendment to STAA providing for a hearing de
novo in district court if the Secretary has not issued a final decision
within 210 days of the filing of the complaint. Making review of STAA
whistleblower cases discretionary may assist in furthering that goal.
The parties should identify in their petitions for review the
conclusions and orders to which they object, or the objections will
ordinarily be deemed waived. The ARB has 30 days to decide whether to
grant a petition for review. If the ARB does not grant the petition,
the decision of the ALJ becomes the final decision of the Secretary.
This section further provides that when the ARB accepts a petition for
review, it will review the ALJ's factual determinations under the
substantial evidence standard, a standard previously set forth in
section 1978.109(c)(3). If a timely petition for review is filed with
the ARB, relief ordered by the ALJ is inoperative while the matter is
pending before the ARB, except that orders of reinstatement will be
effective pending review. Paragraph (b) does provide that in
exceptional circumstances the ARB may grant a motion to stay an ALJ's
order of reinstatement. The Secretary believes that a stay of a
reinstatement order is only appropriate when the respondent can
establish the necessary criteria for equitable injunctive relief, i.e.,
irreparable injury, likelihood of success on the merits, and a
balancing of possible harms to the parties and the public favoring a
stay.
Paragraph (c) of section 1978.110 incorporates the statutory
requirement that the Secretary's final decision be issued within 120
days of the conclusion of the hearing. The hearing is deemed concluded
ten business days after the date of the ALJ's decision unless a motion
for reconsideration has been filed with the ALJ, in which case the
hearing is concluded on the date the motion for reconsideration is
denied or ten business days after a new ALJ decision is issued.
(Previously, section 1978.109(a) provided that the issuance of the
ALJ's decision would be deemed the conclusion of the hearing. The new
provision is more consistent with procedures used under other OSHA-
administered whistleblower provisions and the new procedures for
seeking ARB review of ALJ decisions in STAA whistleblower cases.) This
paragraph further provides for the ARB's decision in all cases to be
served on all parties, the Chief Administrative Law Judge, the
Assistant Secretary, and the Associate Solicitor for Occupational
Safety and Health.
Paragraph (d) describes the remedies the ARB can award if it
concludes that the respondent has violated STAA's whistleblower
provision. In addition, under paragraph (e), if the ARB determines that
the respondent has not violated STAA, it will issue an order denying
the complaint. Paragraph (f) clarifies that the new procedures for
seeking review before the ARB apply to all cases in which ALJ decisions
are issued on or after the effective date of these regulations.
Subpart C--Miscellaneous Provisions
Section 1978.111 Withdrawal of STAA Complaints, Objections, and
Petitions for Review; Settlement
This section provides procedures and time periods for the
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, the withdrawal of objections to
findings and/or preliminary orders, and the withdrawal of petitions for
review of ALJ decisions. It also provides for the approval of
settlements at the investigative and adjudicative stages of the case.
A new sentence is being added to paragraph (a) to clarify that
complaints that are withdrawn pursuant to settlement agreements prior
to the filing of objections must be approved in accordance with the
settlement approval procedures in paragraph (d). In addition, paragraph
(a) now clarifies that the complainant may not withdraw his or her
complaint after the filing of objections to the Assistant Secretary's
findings and/or preliminary order. Significant revisions are being made
to paragraph (c), which addresses situations in which parties seek to
withdraw either objections to the Assistant Secretary's findings and/or
preliminary order or petitions for review of ALJ decisions. Paragraph
(c) provides that a party may withdraw its objections to the Assistant
Secretary's findings and/or preliminary order at any time before the
findings and preliminary order become final by filing a written
withdrawal with the ALJ. Similarly, if a case is on review with the
ARB, a party may withdraw its 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, depending on where the
case is pending, will determine whether to approve the withdrawal of
the objections or the petition for review. Paragraph (c) clarifies that
if the ALJ approves a request to withdraw objections to the Assistant
Secretary's findings and/or preliminary order, and there are no other
pending objections, the Assistant Secretary's findings and preliminary
order will become the final order of the Secretary. Likewise, 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.
Finally, paragraph (c) provides that if objections or a petition for review
are withdrawn because of settlement, the settlement must be submitted for
approval in accordance with paragraph (d).
Paragraph (d)(1) states that a case may be settled at the
investigative stage if the Assistant Secretary, the complainant, and
the respondent agree. The Assistant Secretary's approval of a
settlement reached by the respondent and the complainant demonstrates
his or her consent and achieves the consent of all three parties.
Minor, nonsubstantive changes are being made to paragraphs (d)(2) and
(d)(3). Paragraph (d)(3), which addresses the Assistant Secretary's
authority to withdraw as the prosecuting party if the complainant
refuses to accept a fair and equitable settlement, is being retained in
these revised regulations. See supra (discussion of section 1978.108).
A new paragraph (e) is being added to this section. Borrowing
language from similar provisions in other OSHA whistleblower
regulations, this paragraph simply clarifies that settlements approved
by the Assistant Secretary, the ALJ, or the ARB will constitute the
final order of the Secretary and may be enforced pursuant to 49 U.S.C.
31105(e) and section 1978.113 (judicial enforcement).
Section 1978.112 Judicial Review
This section, formerly section 1978.110, describes the statutory
provisions for judicial review of decisions of the Secretary and, in
cases where judicial review is sought, requires the ARB to submit the
record of proceedings to the appropriate court pursuant to the Federal
Rules of Appellate Procedure and the local rules of such court.
Nonsubstantive revisions are being made to paragraphs (a), (b), and
(c).
Former section 1978.112, which addressed deference to other forums,
including grievance arbitration proceedings under collective bargaining
agreements, has been deleted to conform to other OSHA whistleblower
regulations, which do not contain similar provisions.
Section 1978.113 Judicial Enforcement
Nonsubstantive revisions are being made to this section, which
describes the Secretary's power under STAA's whistleblower provision to
obtain judicial enforcement of orders, including orders approving
settlement agreements.
Section 1978.114 District Court Jurisdiction of Retaliation Complaints
Under STAA
This new section incorporates into the regulations the recent
amendment to STAA allowing a complainant in a whistleblower case to
bring an action in district court for de novo review if there has been
no final decision of the Secretary within 210 days of the filing of the
complaint and the delay was not due to the complainant's bad faith.
Section 1978.114 has been drafted to reflect the Secretary's position
that it would not be reasonable to construe the statute to permit a
complainant to initiate an action in Federal court after the Secretary
issues a final decision, even if the date of the final decision is more
than 210 days after the filing of the administrative complaint. In the
Secretary's view, 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. The regulations
have been drafted in accordance with this position.
Paragraph (b) provides that complainants must give notice fifteen
days in advance of their intent to file a complaint in district court.
This is borrowed from some of OSHA's other regulations implementing
similar "kick out" provisions. In addition, under paragraph (b), the
complainant must file and serve the district court complaint on all
parties to the proceeding as well as OSHA's Regional Administrator, the
Assistant Secretary, and the Associate Solicitor for Occupational
Safety and Health.
Section 1978.115 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 three days notice to the parties, waive any rule or issue such
orders as justice or the administration of STAA's whistleblower
provision requires.
OSHA has deleted former section 1978.114, which provided that the
time requirements imposed on the Secretary by these regulations are
directory in nature and that a failure to meet those requirements did
not invalidate any action by the Assistant Secretary or Secretary under
STAA. These principles are well-established in the case law, see, e.g.,
Roadway Express v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991), and this
provision, which was unique to OSHA's STAA regulations, is unnecessary.
The Secretary views the deletion of this provision as a nonsubstantive
amendment. No significant change in STAA practices or procedures is
intended.
IV. Paperwork Reduction Act
This rule does not contain a reporting provision that is subject to
review by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
V. Administrative Procedure Act
The notice and comment rulemaking procedures of Section 553 of the
Administrative Procedure Act (APA) do not apply "to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice." 5 U.S.C. 553(b)(A). This is a rule of agency
procedure and practice within the meaning of that section. Therefore
publication in the Federal Register of a notice of proposed rulemaking
and request for comments is not required. Although this is a procedural
rule not subject to the notice and comment procedures of the APA, we
are providing persons interested in this interim final rule 60 days to
submit comments. A final rule will be published after the agency
receives and carefully reviews the public's comments.
Furthermore, because this rule is procedural rather than
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be
effective 30 days after publication in the Federal Register is
inapplicable. In addition to this authority, the Assistant Secretary
also finds good cause to provide an immediate effective date for this
rule. It is in the public interest that the rule be effective
immediately so that parties may know what procedures are applicable to
pending cases.
VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small
Business Regulatory Enforcement Fairness Act of 1996; Executive Order
13132
The agency has concluded that this rule is not a "significant
regulatory action" within the meaning of Executive Order 12866 because
it is not likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866. Therefore, no regulatory impact analysis has been prepared.
Because this rulemaking is procedural in nature it is not expected
to have a significant economic impact; therefore no statement is
required under Section 202 of the Unfunded Mandates Reform Act of 1995.
Furthermore, because this is a rule of agency procedure or practice, it
is not a "rule" within the meaning of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 804(3)(C)) and does not
require congressional review. 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 agency has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation primarily implements procedures necessitated by
statutory amendments enacted by Congress. Additionally, the regulatory
revisions are necessary for the sake of consistency with the regulatory
provisions governing procedures under other whistleblower statutes
administered by OSHA. Furthermore, no certification to this effect is
required and no regulatory flexibility analysis is required because no
proposed rule has been issued.
Document Preparation: This document was prepared under the
direction and control of the Assistant Secretary, Occupational Safety
and Health Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 1978
Administrative practice and procedure, Employment, Highway safety,
Investigations, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements, Safety, Transportation, Whistleblowing.
Signed in Washington, DC August 19, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
0
Accordingly, for the reasons set out in the preamble part 1978 of title
29 of the Code of Federal Regulations is revised to read as follows:
PART 1978--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SURFACE
TRANSPORTATION ASSISTANCE ACT OF 1982
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Obligations and prohibited acts.
1978.103 Filing of retaliation complaints.
1978.104 Investigation.
1978.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1978.106 Objections to the findings and the preliminary order and
request for a hearing.
1978.107 Hearings.
1978.108 Role of Federal agencies.
1978.109 Decision and orders of the administrative law judge.
1978.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1978.111 Withdrawal of STAA complaints, objections, and petitions
for review; settlement.
1978.112 Judicial review.
1978.113 Judicial enforcement.
1978.114 District court jurisdiction of retaliation complaints under
STAA.
1978.115 Special circumstances; waiver of rules.
Authority: 49 U.S.C. 31101 and 31105; Secretary of Labor's
Order No. 5-2007, 72 FR 31160 (June 5, 2007); Secretary of Labor's
Order 1-2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).
Subpart A--Complaints, Investigations, Findings, and Preliminary
Orders
Sec. 1978.100 Purpose and scope.
(a) This part implements the procedures of the employee protection
(whistleblower) provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. 31105, as amended, which protects employees
from retaliation because the employee has engaged in, or, in some
circumstances is perceived to have engaged in, protected activity
pertaining to commercial motor vehicle safety, health, or security
matters.
(b) This part establishes procedures pursuant to the statutory
provision set forth above for the expeditious handling of retaliation
complaints filed by employees, or by persons acting on their behalf.
These rules, together with those rules codified at 29 CFR part 18, set
forth the procedures for submission of complaints, investigations,
issuance of findings and preliminary orders, objections to findings,
litigation before administrative law judges (ALJs), post-hearing
administrative review, withdrawals and settlements, and judicial review
and enforcement.
Sec. 1978.101 Definitions.
(a) Act means the Surface Transportation Assistance Act of 1982
(STAA), as amended.
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
(c) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(d) Commercial motor carrier means any person engaged in a business
affecting commerce between States or between a State and a place
outside thereof who owns or leases a commercial motor vehicle in
connection with that business, or assigns employees to operate such a
vehicle.
(e) Commercial motor vehicle means a self-propelled or towed
vehicle used on the highways in commerce principally to transport
passengers or cargo, if the vehicle:
(1) Has a gross vehicle weight rating or gross vehicle weight of at
least 10,001 pounds, whichever is greater;
(2) Is designed to transport more than ten passengers including the
driver; or
(3) Is used in transporting material found by the Secretary of
Transportation to be hazardous under 49 U.S.C. 5103 and transported in
a quantity requiring placarding under regulations prescribed under 49
U.S.C. 5103.
(f) Complainant means the employee who filed a STAA whistleblower
complaint or on whose behalf a complaint was filed.
(g) Complaint, for purposes of Sec. 1978.102(b)(1) and Sec.
1978.102(e)(1), includes both written and oral complaints to employers
and/or government agencies.
(h) Employee means a driver of a commercial motor vehicle
(including an independent contractor when personally operating a
commercial motor vehicle), a mechanic, a freight handler, or an individual
not an employer, who:
(1) Directly affects commercial motor vehicle safety or security in
the course of employment by a commercial motor carrier; and
(2) Is not an employee of the United States Government, a State, or
a political subdivision of a State acting in the course of employment.
(i) Employer means a person engaged in a business affecting
commerce that owns or leases a commercial motor vehicle in connection
with that business, or assigns an employee to operate the vehicle in
commerce, but does not include the Government, a State, or a political
subdivision of a State.
(j) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(k) Person means one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives or
any other group of individuals.
(l) Respondent means the person alleged to have violated 49 U.S.C.
31105.
(m) Secretary means the Secretary of Labor or persons to whom
authority under the Act has been delegated.
(n) State means a State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and
the Northern Mariana Islands.
(o) Any future statutory amendments that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1978.102 Obligations and prohibited acts.
(a) No person may discharge or otherwise retaliate against any
employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the employee engaged in
any of the activities specified in paragraphs (b) or (c) of this
section. In addition, no person may discharge or otherwise retaliate
against any employee with respect to the employee's compensation,
terms, conditions, or privileges of employment because a person acting
pursuant to the employee's request engaged in any of the activities
specified in paragraph (b) of this section.
(b) It is a violation for any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, or in any other
manner retaliate against any employee because the employee or a person
acting pursuant to the employee's request has:
(1) Filed a complaint or begun a proceeding related to a violation
of a commercial motor vehicle safety or security regulation, standard,
or order; or
(2) Testified or will testify at any proceeding related to a
violation of a commercial motor vehicle safety or security regulation,
standard, or order.
(c) It is a violation for any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, or in any other
manner retaliate against any employee because the employee:
(1) Refuses to operate a vehicle because:
(i) The operation violates a regulation, standard, or order of the
United States related to commercial motor vehicle safety, health, or
security; or
(ii) He or she has a reasonable apprehension of serious injury to
himself or herself or the public because of the vehicle's hazardous
safety or security condition;
(2) Accurately reports hours on duty pursuant to Chapter 315 of
Title 49 of the United States Code; or
(3) Cooperates with a safety or security investigation by the
Secretary of Transportation, the Secretary of Homeland Security, or the
National Transportation Safety Board; or
(4) Furnishes information to the Secretary of Transportation, the
Secretary of Homeland Security, the National Transportation Safety
Board, or any Federal, State, or local regulatory or law enforcement
agency as to the facts relating to any accident or incident resulting
in injury or death to an individual or damage to property occurring in
connection with commercial motor vehicle transportation.
(d) No person may discharge or otherwise retaliate against any
employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the person perceives
that the employee has engaged in any of the activities specified in
paragraph (e) of this section.
(e) It is a violation for any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, or in any other
manner retaliate against any employee because the employer perceives
that:
(1) The employee has filed or is about to file a complaint or has
begun or is about to begin a proceeding related to a violation of a
commercial motor vehicle safety or security regulation, standard or
order;
(2) The employee is about to cooperate with a safety or security
investigation by the Secretary of Transportation, the Secretary of
Homeland Security, or the National Transportation Safety Board; or
(3) The employee has furnished or is about to furnish information
to the Secretary of Transportation, the Secretary of Homeland Security,
the National Transportation Safety Board, or any Federal, State, or
local regulatory or law enforcement agency as to the facts relating to
any accident or incident resulting in injury or death to an individual
or damage to property occurring in connection with commercial motor
vehicle transportation.
(f) For purposes of this section, an employee's apprehension of
serious injury is reasonable only if a reasonable individual in the
circumstances then confronting the employee would conclude that the
hazardous safety or security condition establishes a real danger of
accident, injury or serious impairment to health. To qualify for
protection, the employee must have sought from the employer, and been
unable to obtain, correction of the hazardous safety or security
conditions.
Sec. 1978.103 Filing of retaliation complaints.
(a) Who may file. An employee who believes that he or she has been
retaliated against by an employer in violation of STAA may file, or
have filed by any person on the employee's behalf, a complaint alleging
such retaliation.
(b) Nature of Filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If an employee is unable to file a
complaint in English, OSHA will accept the complaint in any language.
(c) Place of Filing. The complaint should be filed with the OSHA
Area Director responsible for enforcement activities in the
geographical area where the employee resides or was employed, but may
be filed with any OSHA officer or employee. Addresses and telephone
numbers for these officials are set forth in local directories and at
the following Internet address: http://www.osha.gov.
(d) Time for Filing. Within 180 days after an alleged violation
occurs, an employee who believes that he or she has been retaliated
against in violation of STAA may file, or have filed by any person on
his or her behalf, a complaint alleging such retaliation. The date of
the postmark, facsimile transmittal, e-mail communication, 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.
(e) Relationship to Section 11(c) complaints. A complaint filed
under STAA alleging facts that would also constitute a violation of
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), will be deemed to be a complaint under both STAA and Section
11(c). Similarly, a complaint filed under Section 11(c) that alleges
facts that would also constitute a violation of STAA will be deemed to
be a complaint filed under both STAA and Section 11(c). Normal
procedures and timeliness requirements under the respective statutes
and regulations will be followed.
Sec. 1978.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the respondent of the filing of the
complaint by providing the respondent (or the respondent's legal
counsel if respondent is represented by counsel) with a copy of the
complaint, redacted in accordance with the Privacy Act of 1974, 5
U.S.C. 552a, et seq., and other applicable confidentiality laws. The
Assistant Secretary will also notify the respondent (or the
respondent's legal counsel if respondent is represented by counsel) of
the respondent's rights under paragraphs (b) and (f) of this section.
The Assistant Secretary will provide a copy of the unredacted complaint
to the complainant (or complainant's legal counsel, if complainant is
represented by counsel) and to the Federal Motor Carrier Safety
Administration.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
may submit to the Assistant Secretary a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent may request a meeting with the Assistant Secretary
to present its position.
(c) Throughout the investigation, the agency will provide to the
complainant (or the complainant's legal counsel if complainant is
represented by counsel) a copy of all of respondent's submissions to
the agency that are responsive to the complainant's whistleblower
complaint. Before providing such materials to the complainant, the
agency will redact them in accordance with the Privacy Act of 1974, 5
U.S.C. 552a, et seq., and other applicable confidentiality laws.
(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 title 29 of the Code of Federal Regulations.
(e)(1) A complaint of alleged violation will be dismissed unless
the complainant has made a prima facie showing that protected activity
or, in circumstances covered by the Act, a perception of 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 or, in
circumstances covered by the Act, was perceived to have engaged in a
protected activity;
(ii) The respondent knew or suspected, actually or constructively,
that the employee engaged in the protected activity, or, in
circumstances covered by the Act, perceived the employee to have
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 or, in circumstances covered by the Act, the
perception of 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 (or, in circumstances covered by
the Act, perceived the employee to have engaged in protected activity)
and that the protected activity (or the perception thereof) 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, giving rise to the
inference that it was a contributing factor in the adverse action. If
the required showing has not been made, the complainant (or the
complainant's legal counsel if complainant is represented by counsel)
will be so notified and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent, pursuant to the procedures provided in this paragraph,
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of the complainant's protected
activity or, when applicable, the perception thereof.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, the Assistant
Secretary will proceed with the investigation. The investigation will
proceed whenever it is necessary or appropriate to confirm or verify
the information provided by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1978.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the respondent has violated
the Act and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the respondent (or the respondent's legal
counsel if respondent is represented by counsel) to give notice of the
substance of the relevant evidence supporting the complainant's
allegations as developed during the course of the investigation. This
evidence includes any witness statements, which will be redacted to
protect the identity of confidential informants where statements were
given in confidence; if the statements cannot be redacted without
revealing the identity of confidential informants, summaries of their
contents will be provided. The respondent will be given the opportunity
to submit a written response, to meet with the investigators, to
present statements from witnesses in support of its position, and to
present legal and factual arguments. The respondent must present this
evidence within ten business days of the Assistant Secretary's
notification pursuant to this paragraph, or as soon thereafter as the
Assistant Secretary and the respondent can agree, if the interests of
justice so require.
Sec. 1978.105 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 there is
reasonable cause to believe that the respondent retaliated against the
complainant in violation of STAA.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, he or she will
accompany the findings with a preliminary order providing the relief
prescribed in 49 U.S.C. 31105(b)(3). Such order will include, where
appropriate, a requirement that the respondent abate the violation;
reinstatement of the complainant to his or her former position, together
with the compensation, terms, conditions and privileges of the complainant's
employment; payment of compensatory damages (backpay with interest and
compensation for any special damages sustained as a result of the
retaliation, including any litigation costs, expert witness fees, and
reasonable attorney fees which the complainant has incurred); and
payment of punitive damages up to $250,000.
(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 the preliminary order will be sent by
certified mail, return receipt requested, to all parties of record (and
each party's legal counsel if the party is represented by counsel). The
findings and preliminary order will inform the parties of the right to
object to the findings and/or the preliminary order and to request a
hearing. The findings and preliminary order also will give the address
of the Chief Administrative Law Judge. At the same time, the Assistant
Secretary will file with the Chief Administrative Law Judge, U.S.
Department of Labor, a copy of the complaint and a copy of the findings
and/or order.
(c) The findings and the 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 request for a hearing has been timely filed as
provided at Sec. 1978.106. However, the portion of any 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 findings and/or order.
Subpart B--Litigation
Sec. 1978.106 Objections to the findings and the preliminary order
and request for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and preliminary order 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. 1978.105. The
objections and request for a hearing must be in writing and state
whether the objections are to the findings and/or the preliminary
order. The date of the postmark, facsimile transmittal, or e-mail
communication will be considered to be the date of filing; if the
objection is filed in person, by hand-delivery or other means, the
objection is filed upon receipt. Objections will be filed with the
Chief Administrative Law Judge, U.S. Department of Labor (800 K Street,
NW., Washington, DC 20001), and copies of the objections must be mailed
at the same time to the other parties of record, the OSHA official who
issued the findings and order, the Assistant Secretary, and the
Associate Solicitor for Occupational Safety and Health.
(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 preliminary order of reinstatement. If no
timely objection is filed with respect to either the findings or the
preliminary order, the findings and preliminary order will become the
final decision of the Secretary, not subject to judicial review.
Sec. 1978.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure and the rules of
evidence for administrative hearings before the Office of
Administrative Law Judges, codified at part 18 of title 29 of the Code
of Federal Regulations.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo and on the record.
(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.
Sec. 1978.108 Role of Federal agencies.
(a) (1) The complainant and the respondent will be parties in every
proceeding. In any case in which the respondent objects to the findings
or the preliminary order the Assistant Secretary ordinarily will be the
prosecuting party. In any other cases, at the Assistant Secretary's
discretion, the Assistant Secretary may participate as a party or
participate as amicus curiae at any stage of the proceeding. This right
to participate includes, but is not limited to, the right to petition
for review of a decision of an ALJ, including a decision approving or
rejecting a settlement agreement between the complainant and the
respondent.
(2) If the Assistant Secretary assumes the role of prosecuting
party in accordance with paragraph (a)(1) of this section, he or she
may, upon written notice to the appropriate adjudicatory body and the
other parties, withdraw as the prosecuting party in the exercise of
prosecutorial discretion. If the Assistant Secretary withdraws, the
complainant will become the prosecuting party and the ALJ will issue
appropriate orders to regulate the course of future proceedings.
(3) Copies of documents in all cases, whether or not the Assistant
Secretary is participating in the proceeding, must be sent to the
Assistant Secretary, as well as all other parties. In all cases in
which the Assistant Secretary is participating in the proceeding,
copies of documents must also be sent to the Associate Solicitor for
Occupational Safety and Health.
(b) The Federal Motor Carrier Safety Administration, if interested
in a proceeding, may participate as amicus curiae at any time in the
proceeding, at its discretion. At the request of the Federal Motor
Carrier Safety Administration, copies of all pleadings in a case must
be sent to that agency, whether or not that agency is participating in
the proceeding.
Sec. 1978.109 Decision and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may only be made if the complainant has
demonstrated by a preponderance of the evidence that the protected
activity, or, in circumstances covered by the Act, the perception of
protected activity, was a contributing factor in the adverse action
alleged in the complaint.
(b) If the complainant or the Assistant Secretary 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
or the perception thereof.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
1978.104(e) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the ALJ, and a complaint may
not be remanded for the completion of an investigation or for
additional findings on the basis that a determination to dismiss was
made in error. Rather, if there otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose of the matter without a hearing
if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the order must order the respondent to take appropriate
affirmative action to abate the violation, including, where
appropriate, reinstatement of the complainant to his or her former
position, together with the compensation, terms, conditions, and
privileges of the complainant's employment; payment of compensatory
damages (backpay with interest and compensation for any special damages
sustained as a result of the retaliation, including any litigation
costs, expert witness fees, and reasonable attorney fees which the
complainant may have incurred); and payment of punitive damages up to
$250,000.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor for Occupational
Safety and Health. 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.
For ALJ decisions issued on or after the effective date of these rules,
all other portions of the ALJ's order will be effective ten business
days after the date of the decision unless a timely petition for review
has been filed with the Administrative Review Board (ARB).
Sec. 1978.110 Decision and orders of the Administrative Review Board.
(a) The Assistant Secretary or any other party desiring to seek
review, including judicial review, of a decision of the ALJ must file a
written petition for review with the ARB, U.S. Department of Labor (200
Constitution Ave., NW., Washington, DC 20210), to which the Secretary
has delegated the authority to act and issue final decisions under this
part. Any ALJ decision issued on or after the effective date of these
rules will become the final order of the Secretary unless, pursuant to
this section, a timely petition for review is filed with the ARB and
the ARB accepts the decision for review. The parties should identify in
their petitions for review the legal conclusions or orders to which
they object, or the objections will ordinarily be deemed waived. A
petition must be filed within ten business days of the date of the
decision of the ALJ. The date of the postmark, facsimile transmittal,
or e-mail communication will be considered to be the date of filing; if
the petition is filed in person, by hand-delivery or other means, the
petition is considered filed upon receipt. The petition must be served
on all parties and on the Chief Administrative Law Judge at the time it
is filed with the ARB. Copies of the petition for review and all briefs
must be served on the Assistant Secretary and, in cases in which the
Assistant Secretary is a party, on the Associate Solicitor for
Occupational Safety and Health.
(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 30 days after the filing of the petition unless
the ARB, within that time, 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 an order of
reinstatement will be effective while review is conducted by the ARB
unless the ARB grants a motion by the respondent to stay that order
based on exceptional circumstances. The ARB will specify the terms
under which any briefs are to be filed. The ARB will review the factual
determinations of the ALJ under the substantial evidence standard. If
no timely petition for review is filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not
subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be ten business
days after the date of the decision of the ALJ, unless a motion for
reconsideration has been filed with the ALJ in the interim, in which
case the conclusion of the hearing is the date the motion for
reconsideration is denied or ten business days after a new decision is
issued. The ARB's final decision will be served upon all parties and
the Chief Administrative Law Judge by mail. The final decision also
will be served on the Assistant Secretary and on the Associate
Solicitor for Occupational Safety and Health, even if the Assistant
Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the final order will order the respondent to take appropriate
affirmative action to abate the violation, including, where
appropriate, reinstatement of the complainant to his or her former
position, together with the compensation, terms, conditions, and
privileges of the complainant's employment; payment of compensatory
damages (backpay with interest and compensation for any special damages
sustained as a result of the retaliation, including any litigation
costs, expert witness fees, and reasonable attorney fees the
complainant may have incurred); and payment of punitive damages up to
$250,000.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint.
(f) Paragraphs (a) and (b) of this section apply to all cases in
which the decision of the ALJ is issued on or after the effective date
of these regulations.
Subpart C--Miscellaneous Provisions
Sec. 1978.111 Withdrawal of STAA complaints, objections, and
petitions for review; settlement.
(a) At any time prior to the filing of objections to the Assistant
Secretary's findings and/or preliminary order, a complainant may
withdraw his or her STAA complaint by filing a written withdrawal with
the Assistant Secretary. The Assistant Secretary then will determine
whether to approve the withdrawal. The Assistant Secretary will notify
the respondent (or the respondent's legal counsel if respondent 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. After the filing of objections to the Assistant Secretary's
findings and/or preliminary order, the complainant may not withdraw his
or her complaint.
(b) The Assistant Secretary may withdraw his or her findings and/or
a preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1978.106, provided that no
objection yet has been filed, and substitute new findings and/or a preliminary
order. The date of the receipt of the substituted findings and/or order will
begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and
preliminary order become final, a party may withdraw its objections to
the Assistant Secretary's findings and/or preliminary order by filing a
written withdrawal with the ALJ. If a case is on review with the ARB, a
party may withdraw its 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 preliminary order, and there are
no other pending objections, the Assistant Secretary's findings and
preliminary 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
STAA complaint and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant, and the respondent agree to a
settlement. The Assistant Secretary's approval of a settlement reached
by the respondent and the complainant demonstrates his or her consent
and achieves the consent of all three parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the ALJ if the case is before the ALJ or
by the ARB, if the ARB has accepted the case for review. A copy of the
settlement will be filed with the ALJ or the ARB as the case may be.
(3) If, under paragraph (d)(1) or (d)(2) of this section, the
respondent makes an offer to settle the case which the Assistant
Secretary, when acting as the prosecuting party, deems to be a fair and
equitable settlement of all matters at issue and the complainant
refuses to accept the offer, the Assistant Secretary may decline to
assume the role of prosecuting party. In such circumstances, the
Assistant Secretary will immediately notify the complainant (or the
complainant's legal counsel if complainant is represented by counsel)
that review of the settlement offer may cause the Assistant Secretary
to decline the role of prosecuting party. After the Assistant Secretary
has reviewed the offer and when he or she has decided to decline the
role of prosecuting party, the Assistant Secretary will immediately
notify all parties of his or her decision in writing and, if the case
is before the ALJ or the ARB, a copy of the notice will be sent to the
appropriate official in accordance with Sec. 1978.108(a)(2).
(e) Any settlement approved by the Assistant Secretary, the ALJ, or
the ARB will constitute the final order of the Secretary and may be
enforced pursuant to Sec. 1978.113.
Sec. 1978.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1978.109 and 1978.110, any person adversely affected or
aggrieved by such 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 person resided
on the date of the violation.
(b) A final order of the ARB will not be subject to judicial review
in any criminal or other civil proceeding.
(c) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the ALJ, will be transmitted
by the ARB to the appropriate court pursuant to the Federal Rules of
Appellate Procedure and the local rules of such court.
Sec. 1978.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order, including one approving a settlement
agreement as provided in Sec. 1978.111, 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.
Sec. 1978.114 District court jurisdiction of retaliation complaints
under STAA.
(a) If there is no final order of the Secretary, 210 days have
passed since 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.
(b) Fifteen days in advance of filing a complaint in federal court,
a complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending upon where the proceeding is pending, a notice of his or
her intention to file such complaint. The notice must be served on all
parties to the proceeding. A copy of the notice must be served on
OSHA's Regional Administrator, the Assistant Secretary, and the
Associate Solicitor for Occupational Safety and Health. The complainant
must file and serve a copy of the district court complaint on the above
as soon as possible after the district court complaint has been filed
with the court.
Sec. 1978.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three days notice to all parties, waive any
rule or issue such orders as justice or the administration of STAA
requires.
[FR Doc. 2010-21125 Filed 8-30-10; 8:45 am]
BILLING CODE 4510-26-P
