DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1982
[Docket Number OSHA-2008-0027]
RIN 1218-AC36
Procedures for the Handling of Retaliation Complaints Under the
National Transit Systems Security Act and the Federal Railroad Safety
Act
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Interim Final Rule; request for comments.
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SUMMARY: This document provides the interim final text of regulations
governing the employee protection ("whistleblower") provisions of the
National Transit Systems Security Act ("NTSSA"), enacted as Section
1413 of the Implementing Recommendations of the 9/11 Commission Act of
2007 ("9/11 Commission Act"), and the Federal Railroad Safety Act
("FRSA"), as amended by Section 1521 of the 9/11 Commission Act. The
9/11 Commission Act was enacted into law on August 3, 2007. FRSA was
amended further by Public Law 110-432, 122 Stat. 4892, Div. A, Title
IV, section 419 (Oct. 16, 2008). This rule establishes procedures and
time frames for the handling of retaliation complaints under NTSSA and
FRSA, including procedures and time frames for employee complaints to
the Occupational Safety and Health Administration ("OSHA"),
investigations by OSHA, appeals of OSHA determinations to an
administrative law judge ("ALJ") for a hearing de novo, hearings by
ALJs, review of ALJ decisions by the Administrative Review Board
("ARB") (acting on behalf of the Secretary) and judicial review of
the Secretary's final decision.
DATES: This interim final rule is effective on August 31, 2010.
Comments and additional materials must be submitted (post-marked, sent
or received) by 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-2008-0027, 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-2008-0027).
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
NTSSA, enacted as Section 1413 of the 9/11 Commission Act, created
employee protection provisions for public transportation agency
employees who engage in whistleblowing activities pertaining to public
transportation safety or security (or, in circumstances covered by the
statutes, employees perceived to have engaged or to be about to engage
in protected activity). Section 1521 of the 9/11 Commission Act, which
amended FRSA, establishes employee protection provisions for railroad
carrier employees who engage in whistleblowing activities pertaining to
railroad safety or security (or, in circumstances covered by the
statutes, employees perceived to have engaged or to be about to engage
in protected activity). The amendments to FRSA also establish
whistleblower provisions for railroad carrier employees who are
retaliated against for requesting medical or first aid treatment, or
for following orders or a treatment plan of a treating physician, 49
U.S.C. 20109(c)(2). In addition, the FRSA amendments prohibit railroad
carriers and other covered persons from denying, delaying, or
interfering with the medical or first aid treatment of an employee, and
require that an injured employee be promptly transported to the nearest
hospital upon request, 49 U.S.C. 20109(c)(1). Section (c)(1) is not a
whistleblower provision because it prohibits certain conduct by
railroad carriers and other covered persons irrespective of any
protected activity by an employee. The procedures established in this
interim final rule apply only to the remaining provisions of 49 U.S.C.
20109.
The whistleblower provisions of NTSSA and FRSA each provide that an
employee may not seek protection under those provisions and another
provision of law for the same allegedly unlawful act of the public
transportation agency (under NTSSA) or railroad carrier (under FRSA). 6
U.S.C. 1142(e); 49 U.S.C. 20109(f). The whistleblower provisions of
NTSSA and FRSA also provide that nothing in those provisions preempts
or diminishes any other safeguards against discrimination, demotion,
discharge, suspension, threats, harassment, reprimand, retaliation, or
any other manner of discrimination provided by Federal or State law. 6
U.S.C. 1142(f); 49 U.S.C. 20109(g). The whistleblower provisions of
NTSSA and FRSA further provide that nothing in those provisions shall
be construed to diminish the rights, privileges, or remedies of any
employee under any Federal or State law or under any collective
bargaining agreement and that the rights and remedies in the
whistleblower provisions of NTSSA or FRSA may not be waived by any
agreement, policy, form, or condition of employment. 6 U.S.C. 1142(g);
49 U.S.C. 20109(h).
II. Summary of Statutory Procedures
Prior to the amendment of FRSA, whistleblower retaliation
complaints by railroad carrier employees were subject to mandatory
dispute resolution pursuant to the Railway Labor Act (45 U.S.C. 151 et
seq.), which included
whistleblower proceedings before the National Railroad Adjustment
Board, as well as other dispute resolution procedures. The amendment
changes the procedures for resolution of such complaints and transfers
the authority to implement the whistleblower provisions for railroad
carrier employees to the Secretary of Labor ("the Secretary").
The procedures for filing and adjudicating whistleblower complaints
under NTSSA and FRSA, as amended, are generally the same. NTSSA and
FRSA whistleblower provisions include procedures that allow a covered
employee to file, within 180 days of the alleged retaliation, a
complaint with the Secretary. Upon receipt of the complaint, the
Secretary must provide written notice to the person or persons named in
the complaint alleged to have violated NTSSA or FRSA ("respondent")
of the filing of the complaint, the allegations contained in the
complaint, the substance of the evidence supporting the complaint, and
the rights afforded the respondent throughout the investigation. The
Secretary must then, within 60 days of receipt of the complaint, afford
the respondent an opportunity to submit a response and meet with the
investigator to present statements from witnesses, and conduct an
investigation.
The Secretary may conduct an investigation only if the complainant
has made a prima facie showing that the protected activity was a
contributing factor in the adverse action alleged in the complaint and
the respondent has not demonstrated, through clear and convincing
evidence, that the employer would have taken the same adverse action in
the absence of that activity.
After investigating a complaint, the Secretary will issue written
findings. If, as a result of the investigation, the Secretary finds
there is reasonable cause to believe that retaliation has occurred, the
Secretary must notify the respondent of those findings, along with a
preliminary order which includes all relief necessary to make the
employee whole, including, where appropriate: A requirement that the
respondent abate the violation; reinstatement with the same seniority
status that the employee would have had but for the retaliation; back
pay with interest; and compensation for any special damages sustained
as a result of the retaliation, including litigation costs, expert
witness fees, and reasonable attorney's fees. The preliminary order may
also require payment of punitive damages up to $250,000.
The complainant and the respondent then have 30 days after receipt
of the Secretary's notification in which to file objections to the
findings and/or preliminary order and request a hearing on the record.
The filing of objections under NTSSA or FRSA will stay any remedy in
the preliminary order except for preliminary reinstatement. If a
hearing before an ALJ is not requested within 30 days, the preliminary
order becomes final and is not subject to judicial review.
If a hearing is held, NTSSA and FRSA require the hearing to be
conducted "expeditiously." The Secretary then has 120 days after the
conclusion of a hearing in which to issue a final order, which may
provide appropriate relief or deny the complaint. Until the Secretary's
final order is issued, the Secretary, the complainant, and the
respondent may enter into a settlement agreement which terminates the
proceeding. Where the Secretary has determined that a violation has
occurred, the Secretary, where appropriate, will assess against the
respondent a sum equal to the total amount of all costs and expenses,
including attorney's and expert witness fees, reasonably incurred by
the complainant for, or in connection with, the bringing of the
complaint upon which the Secretary issued the order. Under NTSSA, the
Secretary also may award a prevailing employer a reasonable attorney's
fee, not exceeding $1,000, if she finds that the complaint is frivolous
or has been brought in bad faith.
Within 60 days of the issuance of the final order, any person
adversely affected or aggrieved by the Secretary's final order may file
an appeal with the United States Court of Appeals for the circuit in
which the violation occurred or the circuit where the complainant
resided on the date of the violation.
NTSSA and FRSA permit the employee to seek de novo review of the
complaint by a United States district court in the event that the
Secretary has not issued a final decision within 210 days after the
filing of the complaint, and there is no showing that the delay is due
to the bad faith of the complainant. 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.
III. Summary and Discussion of Regulatory Provisions
The regulatory provisions in this part have been written and
organized to be consistent with other whistleblower regulations
promulgated by OSHA to the extent possible within the bounds of the
statutory language of NTSSA and FRSA. Responsibility for receiving and
investigating complaints under NTSSA and FRSA has been delegated to the
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 ALJs are decided by the ARB (Secretary's Order 1-2010
(Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010)).
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Section 1982.100 Purpose and Scope
This section describes the purpose of the regulations implementing
NTSSA and FRSA and provides an overview of the procedures covered by
these regulations.
Section 1982.101 Definitions
This section includes general definitions applicable to the
employee protection provisions of NTSSA and FRSA.
The definition section of NTSSA, 6 U.S.C. 1131(5), defines "public
transportation agency" as "a publicly owned operator of public
transportation eligible to receive Federal assistance under chapter 53
of title 49." Chapter 53 of title 49, 49 U.S.C. 5302(a)(10), defines
"public transportation" as "transportation by a conveyance that
provides regular and continuous general or special transportation to
the public, but does not include school buses, charter, or intercity
bus transportation or intercity passenger rail transportation provided
by the entity described in chapter 243 (or a successor to such
entity)." Chapter 243, 49 U.S.C. 24301, governs Amtrak.
The definition section of FRSA, 49 U.S.C. 20102(2), defines
"railroad carrier" as "a person providing railroad transportation."
The definition section of FRSA, 49 U.S.C. 20102(1), defines
"railroad" as "any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways, including commuter or other
short-haul railroad passenger service in a metropolitan or suburban
area and commuter railroad service that was operated by the
Consolidated Rail Corporation on January 1, 1979; and high speed ground
transportation systems that connect metropolitan areas, without regard
to whether those systems use new technologies not associated with
traditional railroads; but does not include rapid transit operations in
an urban area that are not connected to the
general railroad system of transportation."
Section 1982.102 Obligations and Prohibited Acts
This section describes the activities that are protected under
NTSSA and FRSA, and the conduct that is prohibited in response to any
protected activities.
Section 1982.103 Filing of Retaliation Complaints
This section explains the requirements for filing a retaliation
complaint under NTSSA and FRSA. To be timely, a complaint must be filed
within 180 days of when the alleged violation occurs. Under Delaware
State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to
be when the retaliatory decision has been both made and communicated to
the complainant. In other words, the limitations period commences once
the employee is aware or reasonably should be aware of the employer's
decision. Equal Employment Opportunity Commission v. United Parcel
Service, 249 F.3d 557, 561-62 (6th Cir. 2001). Complaints filed under
NTSSA or FRSA need not be in any particular form. They may be either
oral or in writing. If the complainant is unable to file the complaint
in English, OSHA will accept the complaint in any language. With the
consent of the employee, complaints may be filed by any person on the
employee's behalf.
Section 1982.104 Investigation.
This section describes the procedures that apply to the
investigation of NTSSA and FRSA complaints. Paragraph (a) of this
section outlines the procedures for notifying the parties and
appropriate Federal agencies of the complaint and notifying the
respondent of its rights under these regulations. Paragraph (b)
describes the procedures for the respondent to submit its response to
the complaint. Paragraph (c) addresses disclosure to the complainant of
respondent's submissions to the agency that are responsive to the
complaint. Paragraph (d) of this section discusses confidentiality of
information provided during investigations. Paragraph (e) of this
section sets forth NTSSA's and FRSA's statutory burdens of proof. FRSA
adopts the burdens of proof provided under the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century ("AIR21"), 49 U.S.C.
42121, which are the same as those provided under NTSSA. Therefore,
this paragraph generally conforms to the similar provision in the
regulations implementing AIR21. Paragraph (f) describes the procedures
the Assistant Secretary will follow prior to the issuance of findings
and a preliminary order when the Assistant Secretary has reasonable
cause to believe that a violation has occurred.
All these statutes require that a complainant make an initial prima
facie showing that the complainant engaged in protected activity that
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, 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 statutes, that the respondent perceived
the employee to have engaged or to be about to engage 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 complaint shows that the adverse action
took place shortly after the protected activity, giving rise to the
inference that it was a contributing factor in the adverse action.
If the complainant does not make the 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 whistleblower
provisions of Section 211 of the Energy Reorganization Act of 1974, as
amended, ("ERA"), 42 U.S.C. 5851, which is the same as that under
AIR21 and the Surface Transportation Assistance Act of 1982 ("STAA"),
49 U.S.C. 31105, 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, the Secretary must dismiss a
complaint under NTSSA or FRSA and not investigate (or cease
investigating) if either: (1) The complainant fails to meet the prima
facie showing that protected activity was a contributing factor in the
adverse action; or (2) the employer rebuts that showing by clear and
convincing evidence that it would have taken the same adverse action
absent the protected activity.
Assuming that an investigation proceeds beyond the gatekeeping
phase, the statutory burdens of proof require an employee to prove that
the alleged protected activity was a "contributing factor" to the
alleged adverse action. A contributing factor is "any factor which,
alone or in connection with other factors, tends to affect in any way
the outcome of the decision." Marano v. Dep't of Justice, 2 F.3d 1137,
1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)). In proving that protected activity was a contributing
factor in the adverse action, "a complainant need not necessarily
prove that the respondent's articulated reason was a pretext in order
to prevail," because a complainant alternatively can prevail by
showing that the respondent's " `reason, while true, is only one of
the reasons for its conduct,' " and that another reason was the
complainant's protected activity. See Klopfenstein v. PCC Flow Techs.
Holdings, Inc., No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006)
(discussing contributing factor test under the whistleblower provisions
of Section 806 of the Corporate and Criminal Fraud Accountability Act
of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 ("SOX"), 18
U.S.C. 1514A) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004)).
The NTSSA burdens of proof, and the AIR21 burdens of proof which
the FRSA now incorporates, do not address the evidentiary standard that
applies to a complainant's proof that protected activity was a
contributing factor in an adverse action. NTSSA and AIR21 simply
provide that the Secretary may find a violation only "if the
complainant demonstrates" that protected activity was a contributing
factor in the alleged adverse action. See 6 U.S.C. 1142(c)(2)(B)(iii)
and 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 contributed to the adverse action;
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
`demonstrate' [under 42121(b)(2)(B)(iii)] means to prove by a
preponderance of the evidence."). Once the complainant establishes
that the protected activity was a contributing factor in the adverse
action, the 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 prohibited rationale. The "clear and convincing
evidence" standard is a higher burden of proof than the
"preponderance of the evidence" standard.
Section 1982.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of a complaint, written findings regarding whether or not
there is reasonable cause to believe that the complaint has merit. If
the findings are that there is reasonable cause to believe that the
complaint has merit, the Assistant Secretary will order appropriate
relief, including preliminary reinstatement. The findings and, where
appropriate, preliminary order, advise the parties of their right to
file objections to the findings of the Assistant Secretary and to
request a hearing. The findings and, where appropriate, preliminary
order, also advise the respondent of the right under NTSSA to request
attorney's fees from the ALJ, regardless of whether the respondent has
filed objections, if the respondent alleges that the complaint was
frivolous or brought in bad faith. If no objections are filed within 30
days of receipt of the findings, the findings and any preliminary order
of the Assistant Secretary become the final findings and order of the
Secretary. If objections are timely filed, any order of preliminary
reinstatement will take effect, but the remaining provisions of the
order will not take effect until administrative proceedings are
completed.
In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he received prior to his termination, but not actually return to
work. Such "economic reinstatement" frequently 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 employees be preliminarily reinstated to their
positions if OSHA finds reasonable cause that they were discharged in
violation of NTSSA or FRSA. 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 employee. In such situations, actual reinstatement
might be delayed until after the administrative adjudication is
completed as long as the employee continues to receive his or her pay
and benefits and is not otherwise disadvantaged by a delay in
reinstatement. There is no statutory basis for allowing the employer to
recover the costs of economically reinstating an employee should the
employer ultimately prevail in the whistleblower adjudication.
Subpart B--Litigation
Section 1982.106 Objections to the Findings and the Preliminary Order
and Request for a Hearing
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, Washington, DC
20001 within 30 days of receipt of the findings. The date of the
postmark, facsimile transmittal, or e-mail communication is considered
the date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The
filing of objections is considered a request for a hearing before an
ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, the failure to serve copies of the objections on the other
parties of record does not affect the ALJ's jurisdiction to hear and
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear
Power Plant, Inc., No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31,
2005).
Section 1982.107 Hearings
This section adopts the rules of practice and evidence of the
Office of Administrative Law Judges at 29 CFR part 18. The section
specifically provides for consolidation of hearings if both the
complainant and respondent object to the findings and/or order of the
Assistant Secretary. Otherwise, this section does not address
procedural issues, e.g., place of hearing, right to counsel,
procedures, evidence and record of hearing, oral arguments and briefs,
and dismissal for cause, because the Office of Administrative Law
Judges has adopted its own rules of practice that cover these matters.
Section 1982.108 Role of Federal Agencies
Under NTSSA and FRSA, it is not expected that the Secretary
ordinarily will appear as a party in the proceeding. The Secretary has
found that in most whistleblower cases, parties have been ably
represented and the public interest has not required the Department's
participation. Nevertheless, the Assistant Secretary, at his or her
discretion, may participate as a party or amicus curiae at any time in
the administrative proceedings. For example, the Assistant Secretary
may exercise his or her discretion to prosecute the case in the
administrative proceeding before an ALJ; petition for review of a
decision of an ALJ, including a decision based on a settlement
agreement between the complainant and the respondent, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the ARB proceeding.
Although we anticipate that ordinarily the Assistant Secretary will not
participate, the Assistant Secretary may choose to do so in appropriate
cases, such as cases involving important or novel legal issues, large
numbers of employees, alleged violations which appear egregious, or
where the interests of justice might require participation by the
Assistant Secretary. The Department of Transportation and the
Department of Homeland Security, at those agencies' discretion, also
may participate as amicus curiae at any time in the proceedings.
Section 1982.109 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 standard for finding a violation under NTSSA
or FRSA. The section further provides that the Assistant Secretary's
determination to dismiss the complaint without an investigation or
without a complete investigation pursuant to section 1982.104 is not
subject to review. Thus, paragraph (c) of section 1982.109 clarifies
that the Assistant Secretary's determinations on whether to proceed
with an investigation under NTSSA or FRSA and whether to make
particular investigative findings under either of the statutes subject
to this part are discretionary decisions not subject to review by the
ALJ. The ALJ hears cases de novo and, therefore, as a general matter,
may not remand cases to the
Assistant Secretary to conduct an investigation or make further factual
findings. A full discussion of the burdens of proof used by the
Department of Labor to resolve whistleblower cases under this part is
set forth above in the discussion of section 1982.104.
Section 1982.110 Decision and Orders of the Administrative Review Board
Upon the issuance of the ALJ's decision, the parties have 10
business days within which to petition the ARB for review of that
decision. If no timely petition for review is filed with the ARB, the
decision of the ALJ becomes the final decision of the Secretary and is
not subject to judicial review. The date of the postmark, facsimile
transmittal, or e-mail communication will be considered to be the date
of filing of the petition; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt.
The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections
will ordinarily be deemed waived. The ARB has 30 days to decide whether
to grant the petition for review. If the ARB does not grant the
petition, the decision of the ALJ becomes the final decision of the
Secretary. If a timely petition for review is filed with the ARB, any
relief ordered by the ALJ, except for that portion ordering
reinstatement, is inoperative while the matter is pending before the
ARB. When the ARB accepts a petition for review, the ALJ's factual
determinations will be reviewed under the substantial evidence
standard.
This section also provides that in the exceptional case, the ARB
may grant a motion to stay an ALJ's preliminary order of reinstatement
under NTSSA or FRSA, which otherwise would be effective, while review
is conducted by the ARB. The Secretary believes that a stay of an ALJ's
preliminary order of reinstatement under NTSSA or FRSA would be
appropriate only where the respondent can establish the necessary
criteria for equitable injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, and a balancing of possible harms
to the parties and the public favors a stay.
Subpart C--Miscellaneous Provisions
Section 1982.111 Withdrawal of Complaints, Objections, and Petitions
for Review; Settlement
This section provides for the procedures and time periods for
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, the withdrawal of objections to
findings and/or orders, and the withdrawal of petitions for review. It
also provides for approval of settlements at the investigative and
adjudicative stages of the case.
Section 1982.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the ARB to submit the record of proceedings to the
appropriate court pursuant to the rules of such court.
Section 1982.113 Judicial Enforcement
This section describes the Secretary's power under NTSSA and FRSA
to obtain judicial enforcement of orders and the terms of a settlement
agreement.
FRSA expressly authorizes district courts to enforce orders,
including preliminary orders of reinstatement, issued by the Secretary
under 49 U.S.C. 20109(d)(2)(A) (adopting the rules and procedures set
forth in AIR21, 49 U.S.C. 42121(b)). See 49 U.S.C. 20109(d)(2)(A)(iii)
("If a person fails to comply with an order issued by the Secretary of
Labor pursuant to the procedures in section 42121(b), the Secretary of
Labor may bring a civil action to enforce the order in the district
court of the United States for the judicial district in which the
violation occurred, as set forth in 42121."). FRSA permits the
Secretary to bring an action to obtain such enforcement. See 49 U.S.C.
20109(d)(2)(A)(iii). However, there is no provision in FRSA permitting
the person on whose behalf the order was issued to bring such an
action.
NTSSA gives district courts authority to enforce orders, including
preliminary reinstatement orders, issued by the Secretary.
Specifically, reinstatement orders issued under subsection (c)(3) are
immediately enforceable in district court under 6 U.S.C. 1142(c)(5) and
(6). Subsections 1142(c)(3)(B)(ii) and (d)(2)(A) provide that the
Secretary shall order the person who has committed a violation to
reinstate the complainant to his or her former position. Subsection
1142(c)(2)(A) instructs the Secretary to accompany any reasonable cause
finding that a violation occurred with a preliminary order containing
the relief prescribed by subsection (c)(3)(B), which includes
reinstatement. See 6 U.S.C. 1142(c)(3)(B)(ii) and (d)(2)(A). Subsection
(c)(2)(A) also declares that the subsection (c)(3)(B)'s relief of
reinstatement contained in a preliminary order is not stayed upon the
filing of objections. 6 U.S.C. 1142(c)(2)(A) ("The filing of such
objections shall not operate to stay any reinstatement remedy contained
in the preliminary order.") Thus, under the statute, enforceable
orders issued under subsection (c)(3)(B) include preliminary orders
that contain the relief of reinstatement prescribed by subsection
(c)(3)(B) and (d)(2)(A). This statutory interpretation is consistent
with the Secretary's interpretation of similar language in AIR21 and
SOX. But see Bechtel v. Competitive Technologies, Inc., 448 F.3d 469
(2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552
(W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2995 (4th
Cir. Feb. 20, 2008)). NTSSA also permits the person on whose behalf the
order was issued under NTSSA to obtain judicial enforcement of orders
and the terms of a settlement agreement.
Section 1982.114 District Court Jurisdiction of Retaliation Complaints
This section sets forth NTSSA's and FRSA's respective provisions
allowing a complainant to bring an original de novo action in district
court, alleging the same allegations contained in the complaint filed
with OSHA, if there has been no final decision of the Secretary within
210 days of the filing of the complaint and there is no delay due to
the complainant's bad faith. It requires complainants to provide notice
15 days in advance of their intent to file a complaint in district
court.
It is the Secretary's position that complainants may not initiate
an action in Federal court after the Secretary issues a final decision,
even if the date of the final decision is more than 210 days after the
filing of the complaint. The purpose of the "kick-out" provisions 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.
Section 1982.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and notice to the parties, waive any rule as justice or the
administration of NTSSA or FRSA requires.
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 for these regulations, which
provide procedures for the handling of retaliation complaints. 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 Department receives and carefully reviews the
public's comments.
Furthermore, because this rule is procedural rather than
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be
effective 30 days after publication in the Federal Register is
inapplicable. The Assistant Secretary also finds good cause to provide
an immediate effective date for this interim final rule. It is in the
public interest that the rule be effective immediately so that parties
may know what procedures are applicable to pending cases.
VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small
Business Regulatory Enforcement Fairness Act of 1996; Executive Order
13132
The Department has concluded that this rule should be treated as a
"significant regulatory action" within the meaning of Section 3(f)(4)
of Executive Order 12866 because the NTSSA and FRSA whistleblower
provisions are new or substantially new programs. Executive Order 12866
requires a full economic impact analysis only for "economically
significant" rules, which are defined in Section 3(f)(1) as rules that
may "have an annual effect on the economy of $100 million or more, or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities." Because the rule is
procedural in nature, it is not expected to have a significant economic
impact; therefore no economic impact analysis has been prepared. For
the same reason, the rule does not require a Section 202 statement
under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.).
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 Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation simply implements procedures necessitated by enactment
of NTSSA and amendments of FRSA. 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 1982
Administrative practice and procedure, Employment, Homeland
security, Investigations, Mass transportation, Reporting and
recordkeeping requirements, Public transportation, Railroads, Safety,
Transportation, Whistleblowing.
Signed at 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, 29 CFR part 1982
is added to read as follows:
PART 1982--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT OF 2007, ENACTED AS
SECTION 1413 OF THE IMPLEMENTING RECOMMENDATIONS OF THE 9/11
COMMISSION ACT OF 2007, AND THE FEDERAL RAILROAD SAFETY ACT, AS
AMENDED BY SECTION 1521 OF THE IMPLEMENTING RECOMMENDATIONS OF THE
9/11 COMMISSION ACT OF 2007
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1982.100 Purpose and scope.
1982.101 Definitions.
1982.102 Obligations and prohibited acts.
1982.103 Filing of retaliation complaints.
1982.104 Investigation.
1982.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1982.106 Objections to the findings and the preliminary order and
request for a hearing.
1982.107 Hearings.
1982.108 Role of Federal agencies.
1982.109 Decision and orders of the administrative law judge.
1982.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1982.111 Withdrawal of complaints, objections, and petitions for
review; settlement.
1982.112 Judicial review.
1982.113 Judicial enforcement.
1982.114 District court jurisdiction of retaliation complaints.
1982.115 Special circumstances; waiver of rules.
Authority: 6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary of
Labor's Order No. 5-2007, 72 FR 31160 (June 5, 2007); Secretary of
Labor's Order No. 1-2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25,
2010).
Subpart A--Complaints, Investigations, Findings and Preliminary
Orders
Sec. 1982.100 Purpose and scope.
(a) This part implements procedures of NTSSA, 6 U.S.C. 1142, and
FRSA, 49 U.S.C. 20109, as amended. NTSSA provides for employee
protection from retaliation because the employee has engaged in
protected activity pertaining to public transportation safety or
security (or, in circumstances covered by the statutes, the employee is
perceived to have engaged or to be about to engage in protected
activity). FRSA provides for employee protection from retaliation
because the employee has engaged in protected activity pertaining to
railroad safety or security (or, in circumstances covered by the
statutes, the employee is perceived to have engaged or to be about to
engage in protected activity), has requested medical or first aid
treatment, or has followed orders or a treatment plan of a treating
physician.
(b) This part establishes procedures pursuant to NTSSA and FRSA for
the expeditious handling of retaliation complaints filed by employees,
or by persons acting on their behalf. These rules, together with those
codified at 29 CFR part 18, set forth the procedures for submission of
complaints under NTSSA or FRSA, investigations, issuance of findings
and preliminary orders, objections to findings and orders, litigation
before administrative law judges, post-hearing administrative review,
and withdrawals and settlements.
Sec. 1982.101 Definitions.
(a) 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 NTSSA or FRSA.
(b) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(c) Complainant means the employee who filed a NTSSA or FRSA
complaint or on whose behalf a complaint was filed.
(d) Employee means an individual presently or formerly working for,
an individual applying to work for, or an individual whose employment
could be affected by a public transportation agency or a railroad
carrier, or a contractor or subcontractor of a public transportation
agency or a railroad carrier.
(e) FRSA means Section 1521 of the Implementing Recommendations of
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, as
further amended by Public Law 110-432, October, 16, 2008, codified at
49 U.S.C. 20109.
(f) NTSSA means Section 1413 of the Implementing Recommendations of
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007,
codified at 6 U.S.C. 1142.
(g) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(h) Public transportation means transportation by a conveyance that
provides regular and continuous general or special transportation to
the public, but does not include school buses, charter, or intercity
bus transportation or intercity passenger rail transportation provided
by Amtrak.
(i) Public transportation agency means a publicly owned operator of
public transportation eligible to receive Federal assistance under 49
U.S.C. chapter 53.
(j) Railroad means any form of nonhighway ground transportation
that runs on rails or electromagnetic guideways, including commuter or
other short-haul railroad passenger service in a metropolitan or
suburban area and commuter railroad service that was operated by the
Consolidated Rail Corporation on January 1, 1979 and high speed ground
transportation systems that connect metropolitan areas, without regard
to whether those systems use new technologies not associated with
traditional railroads, but does not include rapid transit operations in
an urban area that are not connected to the general railroad system of
transportation.
(k) Railroad carrier means a person providing railroad
transportation.
(l) Respondent means the person alleged to have violated NTSSA or
FRSA.
(m) Secretary means the Secretary of Labor or person to whom
authority under NTSSA or FRSA has been delegated.
(n) 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. 1982.102 Obligations and prohibited acts.
(a) National Transit Systems Security Act. (1) A public
transportation agency, contractor, or subcontractor of such agency, or
officer or employee of such agency shall not discharge, demote,
suspend, reprimand, or in any other way discriminate against, including
but not limited to intimidating, threatening, restraining, coercing,
blacklisting, or disciplining an employee if such discrimination is
due, in whole or in part, to the employee's lawful, good faith act
done, or perceived by the employer to have been done or about to be
done--
(i) To provide information, directly cause information to be
provided, or otherwise directly assist in any investigation regarding
any conduct which the employee reasonably believes constitutes a
violation of any Federal law, rule, or regulation relating to public
transportation safety or security, or fraud, waste, or abuse of Federal
grants or other public funds intended to be used for public
transportation safety or security, if the information or assistance is
provided to, or an investigation stemming from the provided information
is conducted by--
(A) A Federal, State or local regulatory or law enforcement agency
(including an office of the Inspector General under the Inspector
General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));
(B) Any Member of Congress, any Committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
(ii) To refuse to violate or assist in the violation of any Federal
law, rule, or regulation relating to public transportation safety or
security;
(iii) To file a complaint or directly cause to be brought a
proceeding related to the enforcement of this section or to testify in
that proceeding;
(iv) 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
(v) 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 public transportation.
(2)(i) A public transportation agency, contractor, or subcontractor
of such agency, or officer or employee of such agency shall not
discharge, demote, suspend, reprimand, or in any other way discriminate
against, including but not limited to intimidating, threatening,
restraining, coercing, blacklisting, or disciplining an employee for--
(A) Reporting a hazardous safety or security condition;
(B) Refusing to work when confronted by a hazardous safety or
security condition related to the performance of the employee's duties,
if the conditions described in paragraph (a)(2)(ii) of this section
exist; or
(C) Refusing to authorize the use of any safety- or security-
related equipment, track, or structures, if the employee is responsible
for the inspection or repair of the equipment, track, or structures,
when the employee believes that the equipment, track, or
structures are in a hazardous safety or security condition, if the
conditions described in paragraph (a)(2)(ii) of this section exist.
(ii) A refusal is protected under paragraph (a)(2)(i)(B) and (C) of
this section if--
(A) The refusal is made in good faith and no reasonable alternative
to the refusal is available to the employee;
(B) A reasonable individual in the circumstances then confronting
the employee would conclude that--
(1) The hazardous condition presents an imminent danger of death or
serious injury; and
(2) The urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
(C) The employee, where possible, has notified the public
transportation agency of the existence of the hazardous condition and
the intention not to perform further work, or not to authorize the use
of the hazardous equipment, track, or structures, unless the condition
is corrected immediately or the equipment, track, or structures are
repaired properly or replaced.
(iii) In paragraph (a)(2)(ii) of this section, only paragraph
(a)(2)(ii)(A) shall apply to security personnel, including transit
police, employed or utilized by a public transportation agency to
protect riders, equipment, assets, or facilities.
(b) Federal Railroad Safety Act. (1) A railroad carrier engaged in
interstate or foreign commerce, a contractor or a subcontractor of such
a railroad carrier, or an officer or employee of such a railroad
carrier, may not discharge, demote, suspend, reprimand, or in any other
way discriminate against, including but not limited to intimidating,
threatening, restraining, coercing, blacklisting, or disciplining an
employee if such discrimination is due, in whole or in part, to the
employee's lawful, good faith act done, or perceived by the employer to
have been done or about to be done--
(i) To provide information, directly cause information to be
provided, or otherwise directly assist in any investigation regarding
any conduct which the employee reasonably believes constitutes a
violation of any Federal law, rule, or regulation relating to railroad
safety or security, or gross fraud, waste, or abuse of Federal grants
or other public funds intended to be used for railroad safety or
security, if the information or assistance is provided to or an
investigation stemming from the provided information is conducted by--
(A) A Federal, State, or local regulatory or law enforcement agency
(including an office of the Inspector General under the Inspector
General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));
(B) Any Member of Congress, any committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
(ii) To refuse to violate or assist in the violation of any Federal
law, rule, or regulation relating to railroad safety or security;
(iii) To file a complaint, or directly cause to be brought a
proceeding related to the enforcement of 49 U.S.C. part A of subtitle V
or, as applicable to railroad safety or security, 49 U.S.C. chapter 51
or 57, or to testify in that proceeding;
(iv) To notify, or attempt to notify, the railroad carrier or the
Secretary of Transportation of a work-related personal injury or work-
related illness of an employee;
(v) To cooperate with a safety or security investigation by the
Secretary of Transportation, the Secretary of Homeland Security, or the
National Transportation Safety Board;
(vi) 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 railroad transportation; or
(vii) To accurately report hours on duty pursuant to 49 U.S.C.
chapter 211.
(2)(i) A railroad carrier engaged in interstate or foreign
commerce, or an officer or employee of such a railroad carrier, shall
not discharge, demote, suspend, reprimand, or in any other way
discriminate against, including but not limited to intimidating,
threatening, restraining, coercing, blacklisting, or disciplining an
employee for--
(A) Reporting, in good faith, a hazardous safety or security
condition;
(B) Refusing to work when confronted by a hazardous safety or
security condition related to the performance of the employee's duties,
if the conditions described in paragraph (b)(2)(ii) of this section
exist; or
(C) Refusing to authorize the use of any safety-related equipment,
track, or structures, if the employee is responsible for the inspection
or repair of the equipment, track, or structures, when the employee
believes that the equipment, track, or structures are in a hazardous
safety or security condition, if the conditions described in paragraph
(b)(2)(ii) of this section exist.
(ii) A refusal is protected under paragraphs (b)(2)(i)(B) and (C)
of this section if--
(A) The refusal is made in good faith and no reasonable alternative
to the refusal is available to the employee;
(B) A reasonable individual in the circumstances then confronting
the employee would conclude that--
(1) The hazardous condition presents an imminent danger of death or
serious injury; and
(2) The urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
(C) The employee, where possible, has notified the railroad carrier
of the existence of the hazardous condition and the intention not to
perform further work, or not to authorize the use of the hazardous
equipment, track, or structures, unless the condition is corrected
immediately or the equipment, track, or structures are repaired
properly or replaced.
(iii) In paragraph (b)(2)(ii) of this section, only paragraph
(b)(2)(ii)(A) shall apply to security personnel employed by a railroad
carrier to protect individuals and property transported by railroad.
(3) A railroad carrier engaged in interstate or foreign commerce, a
contractor or a subcontractor of such a railroad carrier, or an officer
or employee of such a railroad carrier may not discipline, or threaten
discipline to, an employee for requesting medical or first aid
treatment, or for following orders or a treatment plan of a treating
physician, except that--
(i) A railroad carrier's refusal to permit an employee to return to
work following medical treatment shall not be considered a violation of
FRSA if the refusal is pursuant to Federal Railroad Administration
medical standards for fitness of duty or, if there are no pertinent
Federal Railroad Administration standards, a carrier's medical
standards for fitness for duty.
(ii) For purposes of this paragraph, the term "discipline" means
to bring charges against a person in a disciplinary proceeding,
suspend, terminate, place on probation, or make note of reprimand on an
employee's record.
Sec. 1982.103 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 NTSSA or FRSA 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 a complainant is unable to file the
complaint in English, OSHA will accept the complaint in any language.
(c) Place of filing. The complaint should be filed with the OSHA
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 of
NTSSA or FRSA occurs, an employee who believes that he or she has been
retaliated against in violation of NTSSA or FRSA may file, or have
filed by any person on the employee's behalf, a complaint alleging such
retaliation. The date of the postmark, facsimile transmittal, 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.
Sec. 1982.104 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 a copy of the complaint, redacted, if necessary,
in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and
other applicable confidentiality laws, and will also notify the
respondent of its rights under paragraphs (b) and (f) of this section
and paragraph (e) of Sec. 1982.110. The Assistant Secretary will
provide a copy of the unredacted complaint to the complainant (or to
the complainant's legal counsel, if complainant is represented by
counsel), and to the Federal Railroad Administration, the Federal
Transit Administration, or the Transportation Security Administration
as appropriate.
(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, if necessary, 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
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 statutes, was perceived to have engaged or
to be about to engage in 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 statutes, perceived the employee to have
engaged or to be about to engage in protected activity);
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity (or perception thereof) 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 statutes, perceived the employee to have engaged or to be about to
engage in protected activity), and that the protected activity (or
perception thereof) was a contributing factor in the adverse action.
The burden may be satisfied, for example, if the complaint shows that
the adverse action took place shortly after the protected activity,
giving rise to the inference that it was a contributing factor in the
adverse action. If the required showing has not been made, the
complainant (or the complainant's legal counsel if complainant is
represented by counsel) will be so notified and the investigation will
not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent, 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.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set for 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. 1982.105, 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
NTSSA or FRSA 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
will present this evidence within 10 business days of the Assistant
Secretary's notification pursuant to this paragraph, or as soon
thereafter as the Assistant Secretary and the respondent can agree, if
the interests of justice so require.
Sec. 1982.105 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 filing of the complaint, written findings as to whether or not there
is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of NTSSA or FRSA.
(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 relief to the
complainant. The preliminary 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 (including back pay), terms, conditions and privileges of
the complainant's employment; payment of compensatory damages,
including, at the request of the complainant, the aggregate amount of
all costs and expenses (including attorney's and expert witness fees)
reasonably incurred. It may also include 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, where appropriate, the preliminary order will inform the
parties of the right to object to the findings and/or order and to
request a hearing, and of the right of the respondent under NTSSA to
request attorney's fees not exceeding $1,000 from the administrative
law judge ("ALJ") regardless of whether the respondent has filed
objections, if the respondent alleges that the complaint was frivolous
or brought in bad faith, and will also 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 original 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 a request for a hearing has been timely filed as
provided at Sec. 1982.106. 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. 1982.106 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, or a respondent alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney's fees up to $1,000 under NTSSA, 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 paragraph (b) of Sec.
1982.105. The objections, request for a hearing, and/or request for
attorney's fees must in writing and state whether the objections are to
the findings, the preliminary order, and/or whether there should be an
award of attorney's fees. The date of the postmark, facsimile
transmittal, or e-mail communication will be considered to be the date
of filing; if the objection is filed in person, by hand-delivery or
other means, the objection is filed upon receipt. Objections must be
filed with the Chief Administrative Law Judge, U.S. Department of
Labor, Washington, DC 20001 and copies of the objections must be mailed
at the same time to the other parties of record, the OSHA official who
issued the findings and order, the Assistant Secretary, and the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor.
(b) If a timely objection is filed, all provisions of the
preliminary order will be stayed, except for the portion requiring
preliminary reinstatement, which will not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the respondent's receipt of the findings and
preliminary order, regardless of any objections to the order. The
respondent may file a motion with the Office of Administrative Judges
for a stay of the Assistant Secretary's preliminary order of
reinstatement. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings or preliminary
order will become the final decision of the Secretary, not subject to
judicial review.
Sec. 1982.107 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 a judge who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or 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. 1982.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding. At the Assistant Secretary's discretion, the Assistant
Secretary may participate as a party or as amicus curiae at any time at
any stage of the proceeding. This right to participate includes, but is
not limited to, the right to petition for review of a decision of an
ALJ, including a decision approving or rejecting a settlement agreement
between the complainant and the respondent.
(2) Copies of documents in all cases, whether or not the Assistant
Secretary is participating in the proceeding, must be sent to the
Assistant Secretary, Occupational Safety and Health Administration, and
to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, as well as all other parties.
(b) The Department of Homeland Security or the Department of
Transportation, if interested in a proceeding, may participate as
amicus curiae at any time in the proceeding, at the agency's
discretion. At the request of the interested Federal agency, copies of
all pleadings in a case must be sent to the Federal agency, whether or
not the agency is participating in the proceeding.
Sec. 1982.109 Decision and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that
protected activity was a contributing factor in the adverse action
alleged in the complaint.
(b) If the complainant has satisfied the burden set forth in the
prior paragraph, relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of any protected behavior.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
1982.104(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 will direct the respondent to take appropriate
affirmative action to make the employee whole, including, where
appropriate: a requirement that the respondent abate the violation;
reinstatement with the same seniority status that the employee would
have had but for the retaliation; back pay with interest; and
compensation for any special damages sustained as a result of the
retaliation, including litigation costs, expert witness fees, and
reasonable attorney's fees. The order may also include 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. If, upon the
request of the respondent, the ALJ determines that a complaint filed
under NTSSA was frivolous or was brought in bad faith, the ALJ may
award to the respondent a reasonable attorney's fee, not exceeding
$1,000.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards. Any ALJ's decision requiring reinstatement or lifting
an order of reinstatement by the Assistant Secretary will be effective
immediately upon receipt of the decision by the respondent. All other
portions of the ALJ's order will be effective 10 business days after
the date of the decision unless a timely petition for review has been
filed with the Administrative Review Board ("ARB").
Sec. 1982.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
under NTSSA was frivolous or brought in bad faith who seeks an award of
attorney's fees up to $1,000, must file a written petition for review
with the ARB, U.S. Department of Labor (200 Constitution Avenue, NW.,
Washington, DC 20210), which has been delegated the authority to act
for the Secretary and issue final decisions under this part. The
decision of the ALJ will become the final order of the Secretary
unless, pursuant to this section, a petition for review is timely filed
with the ARB and the ARB accepts the petition 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 10 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 on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the ALJ will become the final
order of the Secretary unless the ARB, within 30 days of the filing of
the petition, issues an order notifying the parties that the case has
been accepted for review. If a case is accepted for review, the
decision of the ALJ will be inoperative unless and until the ARB issues
an order adopting the decision, except that a preliminary 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 10 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, Division of Fair Labor Standards, U.S. Department of Labor,
even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the final order will order the respondent to take appropriate
affirmative action to make the employee whole, including, where
appropriate: a requirement that the respondent abate the violation;
reinstatement with the same seniority status that the employee would
have had but for the retaliation; back pay with interest; and
compensation for any special damages sustained as a result of the
retaliation, including litigation costs, expert witness fees, and
reasonable attorney's fees. The order also may include 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. If, upon the
request of the respondent, the ARB determines that a complaint under
NTSSA was frivolous or was brought in bad faith, the ARB may award to
the respondent a reasonable attorney's fee, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1982.111 Withdrawal of 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 complaint under NTSSA or FRSA 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. A
complainant may not withdraw his or her complaint after the filing of
objections to the Assistant Secretary's findings and preliminary order.
(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. 1982.106, 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
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
order become final, a party may withdraw its objections to the
Assistant Secretary's findings and/or 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 order, and there are no other pending
objections, the Assistant Secretary's findings and/or order will become
the final order of the Secretary. If the ARB approves a request to
withdraw a petition for review of an ALJ decision, and there are no
other pending petitions for review of that decision, the ALJ's decision
will become the final order of the Secretary. If objections or a
petition for review are withdrawn because of settlement, the settlement
must be submitted for approval in accordance with paragraph (d) of this
section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant, and the respondent agree to a
settlement. The Assistant Secretary's approval of a settlement reached
by the respondent and the complainant demonstrates 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.
(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. 1982.113.
Sec. 1982.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1982.109 and 1982.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
(b) A final order of the ARB is not subject to judicial review in
any criminal or other civil proceeding.
(c) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the ALJ, will be transmitted
by the ARB to the appropriate court pursuant to the Federal Rules of
Appellate Procedure and the local rules of the court.
Sec. 1982.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement, or a final order, including one approving a
settlement agreement, issued under NTSSA, the Secretary or a person on
whose behalf the order was issued may file a civil action seeking
enforcement of the order in the United States district court for the
district in which the violation was found to have occurred. Whenever a
person has failed to comply with a preliminary order of reinstatement,
or a final order, including one approving a settlement agreement,
issued under FRSA, 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. In such
civil actions under NTSSA and FRSA, the district court will have
jurisdiction to grant all appropriate relief, including, but not
limited to, injunctive relief and compensatory damages, including:
(1) Reinstatement with the same seniority status that the employee
would have had, but for the retaliation;
(2) The amount of back pay, with interest; and
(3) Compensation for any special damages sustained as a result of
the retaliation, including litigation costs, expert witness fees, and
reasonable attorney's fees.
Sec. 1982.114 District Court jurisdiction of retaliation complaints.
(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 the
Regional Administrator, the Assistant Secretary, Occupational Safety
and Health Administration, and on the Associate Solicitor, Division of
Fair Labor Standards, U.S. Department of Labor. The complainant shall
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. 1982.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three days notice to all parties, waive any
rule or issue such orders that justice or the administration of NTSSA
or FRSA requires.
[FR Doc. 2010-21128 Filed 8-30-10; 8:45 am]
BILLING CODE 4510-26-P
