[Federal Register: August 31, 2010 (Volume 75, Number 168)][Rules and Regulations] [Page 53533-53544]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au10-14]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1983
[Docket Number OSHA-2010-0006]
RIN 1218-AC47
Procedures for the Handling of Retaliation Complaints Under
Section 219 of the Consumer Product Safety Improvement Act of 2008
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 (or "whistleblower") provisions of
the Consumer Product Safety Improvement Act of 2008 ("CPSIA"). This
rule establishes procedures and time frames for the handling of
retaliation complaints under CPSIA, 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 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-2010-0006, 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-2010-0006).
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
The Consumer Product Safety Improvement Act of 2008 ("CPSIA" or
"the Act"), Public Law 110-314, was enacted on August 14, 2008.
Section 219 of the Act, codified at 15 U.S.C. 2087, provides protection
to employees against retaliation by a manufacturer, private labeler,
distributor, or retailer, because they provided to their employer, the
Federal Government or the attorney general of a State, information
relating to any violation of, or any act or omission the employees
reasonably believe to be a violation of, any provision of an Act
enforced by the Consumer Product Safety Commission ("Commission"), or
any order, rule, regulation, standard, or ban under any such Act. The
statutes enforced by the Commission include the Consumer Product Safety
Act ("CPSA"), as amended by the CPSIA (15 U.S.C. 2051 et seq.), the
Children's Gasoline Burn Prevention Act (Pub. L. 110-278, 122 Stat.
2602 (2008)), the Federal Hazardous Substances Act (15 U.S.C. 1261 et
seq.), the Flammable Fabrics Act (15 U.S.C. 1191 et seq.), the Poison
Prevention Packaging Act (15 U.S.C. 1471 et seq.), the Refrigerator
Safety Act (15 U.S.C. 1211 et seq.), and the Virginia Graeme Baker Pool
and Spa Safety Act (15 U.S.C. 8001 et seq.). These rules establish
procedures for the handling of whistleblower complaints under CPSIA.
II. Summary of Statutory Procedures
CPSIA's whistleblower provisions include procedures that allow a
covered employee to file, within 180 days of the alleged retaliation, a
complaint with the Secretary of Labor ("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 the
Act ("respondent") of the filing of the complaint, the allegations
contained in the complaint, the substance of the evidence supporting
the complaint, and the rights afforded the respondent throughout the
investigation. The Secretary must then, within 60 days of receipt of
the complaint, afford the 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 that requires the respondent to: take affirmative
action to abate the violation; reinstate the complainant to his or her
former position together with the compensation of that position
(including back pay) and restore the terms, conditions, and privileges
associated with his or her employment; and provide compensatory damages
to the complainant, as well as costs and attorney's and expert witness
fees reasonably incurred by the complainant for, or in connection with,
the bringing of the complaint upon which the order was issued.
The complainant and the respondent then have 30 days after the date
of the Secretary's notification in which to file objections to the
findings and/or preliminary order and request a hearing before an ALJ.
The filing of objections under CPSIA 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, CPSIA requires the hearing to be conducted
"expeditiously." The Secretary then has 120 days after the conclusion
of any hearing in which to issue a final order, which may provide
appropriate relief or deny the complaint. Until the Secretary's final
order is issued, the Secretary, the complainant, and the respondent may
enter into a settlement agreement that terminates the proceeding. Where
the Secretary has determined that a violation has occurred, the
Secretary, where appropriate, will assess against the respondent a sum
equal to the total amount of all costs and expenses, including attorney's
and expert witness fees, reasonably incurred by the complainant for, or in
connection with, the bringing of the complaint upon which the Secretary
issued the order. The Secretary also may award a prevailing employer a
reasonable attorney's fee, not exceeding $1,000, if the Secretary finds
that the complaint is frivolous or has been brought in bad faith.
Within 60 days of the issuance of the final order, any person adversely
affected or aggrieved by the Secretary's final order may file an appeal
with the United States Court of Appeals for the circuit in which the
violation occurred or the circuit where the complainant resided on the
date of the violation.
CPSIA permits the employee to seek de novo review of the complaint
by a United States district court in the event that the Secretary has
not issued a final decision within 210 days after the filing of the
complaint, or within 90 days after receiving a written determination.
The 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 CPSIA. Responsibility for receiving and
investigating complaints under CPSIA also 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 administrative law judges 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 1983.100 Purpose and Scope
This section describes the purpose of the regulations implementing
CPSIA and provides an overview of the procedures covered by these
regulations.
Section 1983.101 Definitions
This section includes general definitions from the CPSA, which are
applicable to the whistleblower provisions of the CPSIA, including a
definition of the term "consumer product." See 15 U.S.C. 2052(a)(5).
The CPSA defines "distributor" as "a person to whom a consumer
product is delivered or sold for purposes of distribution in commerce,
except that such term does not include a manufacturer or retailer of
such product." 15 U.S.C. 2052(a)(8). The CPSA defines "manufactured"
as "to manufacture, produce, or assemble," and defines
"manufacturer" as "any person who manufactures or imports a consumer
product." 15 U.S.C. 2052(a)(10) and (11), respectively. "Private
labeler" is defined by the CPSA as "an owner of a brand or trademark
on the label of a consumer product which bears a private label." 15
U.S.C. 2052(a)(12). Section 2052(a)(12)(B) further provides that a
"consumer product bears a private label if (i) the product (or its
container) is labeled with the brand or trademark of a person other
than a manufacturer of the product, (ii) the person with whose brand or
trademark the product (or container) is labeled has authorized or
caused the product to be so labeled, and (iii) the brand or trademark
of a manufacturer of such product does not appear on such label." 15
U.S.C. 2052(a)(12)(B). The CPSA defines "retailer" as "a person to
whom a consumer product is delivered or sold for purposes of sale or
distribution by such person to a consumer." 15 U.S.C. 2052(a)(13).
Section 1983.102 Obligations and Prohibited Acts
This section describes the activities that are protected under
CPSIA, and the conduct that is prohibited in response to any protected
activities. For purposes of Sec. 1983.102(c), the ARB has interpreted
the phrase "deliberate violations" for the purpose of denying
protection to an employee under the Energy Reorganization Act's similar
provision as including an element of willfulness. See Fields v. U.S.
Dep't of Labor, Admin. Review Bd., 173 F.3d 811, 814 (11th Cir. 1999)
(petitioners knowingly conducted unauthorized and potentially dangerous
experiments).
Section 1983.103 Filing of Retaliation Complaint
This section explains the requirement for filing a retaliation
complaint under CPSIA. 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
CPSIA 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 1983.104 Investigation
This section describes the procedures that apply to the
investigation of CPSIA complaints. Paragraph (a) of this section
outlines the procedures for notifying the parties and the Consumer
Product Safety Commission 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 CPSIA's statutory burdens of proof. Paragraph (f) describes the
procedures the Assistant Secretary will follow prior to the issuance of
findings and a preliminary order when the Assistant Secretary has
reasonable cause to believe that a violation has occurred.
The statute requires that a complainant make an initial prima facie
showing that protected activity was "a contributing factor" in the
adverse action alleged in the complaint, i.e., that the protected
activity, alone or in combination with other factors, affected in some
way the outcome of the employer's decision. 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 ERA, which is the same as that under CPSIA, 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 CPSIA 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. If the employee proves that the alleged
protected activity was a contributing factor to the adverse action, the
employer, to escape liability, must prove by "clear and convincing
evidence" that it would have taken the same action in the absence of
the protected activity. A contributing factor is "any factor which,
alone or in 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, *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)).
CPSIA's burdens of proof do not address the evidentiary standard
that applies to a complainant's proof that protected activity was a
contributing factor in an adverse action. CPSIA 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. See 15 U.S.C. 2087(b)(2)(B)(iii). It is the
Secretary's position that the complainant must prove by a
"preponderance of the evidence" that his or her protected activity
contributed to the adverse action; otherwise the burden never shifts to
the 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 a "preponderance of the evidence"
standard.
Section 1983.105 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 to request attorney's
fees not exceeding $1,000 from the ALJ, regardless of whether the
respondent has filed objections, if the respondent alleges that the
complaint was frivolous or brought in bad faith. If no objections are
filed within 30 days of receipt of the findings, the findings and any
preliminary order of the Assistant Secretary become the final decision
and order of the Secretary. If objections are timely filed, any order
of preliminary reinstatement will take effect, but the remaining
provisions of the order will not take effect until administrative
proceedings are completed.
In 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 CPSIA. 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 1983.106 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 also is considered a request for a hearing before
an ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
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, *7 (ARB Oct. 31, 2005).
Section 1983.107 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 1983.108 Role of Federal Agencies
Under CPSIA it is not expected that the Secretary will ordinarily
appear as a party in the proceeding. 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 that
appear egregious, or where the interests of justice might require
participation by the Assistant Secretary. The Consumer Product Safety
Commission, at its own discretion, also may participate as amicus
curiae at any time in the proceedings.
Section 1983.109 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 CPSIA.
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 1983.104 is not
subject to review. Thus, paragraph (c) of section 1983.109 clarifies
that the Assistant Secretary's determinations on whether to proceed
with an investigation under CPSIA and whether to make particular
investigative findings are discretionary decisions not subject to
review by the ALJ. The ALJ hears cases de novo and, therefore, as a
general matter, may not remand cases to the Assistant Secretary to
conduct an investigation or make further factual findings. A full
discussion of the burdens of proof used by the Department of Labor to
resolve whistleblower cases under this part is set forth above in the
discussion of section 1983.104.
Section 1983.110 Decision 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 is considered the date of filing
of the petition; if the petition is filed in person, by hand delivery
or other means, the petition is considered filed upon receipt.
The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections
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 CPSIA, 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 CPSIA 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 1983.111 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, and the withdrawal of objections to
findings and/or orders. It also provides for approval of settlements at
the investigative and adjudicative stages of the case.
Section 1983.112 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 1983.113 Judicial Enforcement
This section describes the Secretary's power under CPSIA to obtain
judicial enforcement of orders and the terms of a settlement agreement.
CPSIA expressly authorizes district courts to enforce orders,
including preliminary orders of reinstatement, issued by the Secretary
under 15 U.S.C. 2087(b)(6) ("Whenever any person has failed to comply
with an order issued under paragraph (3), the Secretary may file a
civil action in the United States district court for the district in
which the violation was found to occur, or in the United States
district court for the District of Columbia, to enforce such order.").
Specifically, reinstatement orders issued under 15 U.S.C. 2087(b)(2)(A)
are immediately enforceable in district court under 15 U.S.C.
2087(b)(6) and (7). Subsection 2087(b)(3)(B)(ii) provides that the
Secretary shall order the person who has committed a violation to
reinstate the complainant to his or her former position. Subsection
2087(b)(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 (b)(3)(B), which includes
reinstatement. See 15 U.S.C. 2087(b)(3)(B)(ii). Subsection (b)(2)(A)
also declares that the subsection (b)(3)(B)'s relief of reinstatement
contained in a preliminary order is not stayed upon the filing of
objections. 15 U.S.C. 2087(b)(2)(A) ("The filing of such objections
shall not operate to stay any reinstatement remedy contained in the
preliminary order."). Thus, under the statute, enforceable orders
issued under subsection (b)(3) include preliminary orders that contain
the relief of reinstatement prescribed by subsection (b)(3)(B). 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)). CPSIA also permits the person on whose behalf the
order was issued under CPSIA to obtain judicial enforcement or orders
and the terms of a settlement agreement.
Section 1983.114 District Court Jurisdiction of Retaliation Complaints
This section sets forth CPSIA's provisions allowing a complainant
to bring an original de novo action in district court, alleging the
same allegations contained in the complaint filed with OSHA, if there
has been no final decision of the Secretary within 210 days of the
filing of the complaint, or within 90 days after receiving a written
determination. It also 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 1983.115 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 CPSIA 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 are not required for these regulations, which
provide the procedures for the handling of retaliation complaints.
Although this is a procedural rule not subject to the notice and
comment procedures of the APA, 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 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 CPSIA whistleblower provisions are
new. 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 and 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 CPSIA. 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 1983
Administrative practice and procedure, Employment, Consumer
protection, Investigations, Reporting and recordkeeping requirements,
Whistleblower.
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 1983
is added to read as follows:
PART 1983--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 219 OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF
2008.
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1983.100 Purpose and scope.
1983.101 Definitions.
1983.102 Obligations and prohibited acts.
1983.103 Filing of retaliation complaint.
1983.104 Investigation.
1983.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1983.106 Objections to the findings and the preliminary order and
request for a hearing.
1983.107 Hearings.
1983.108 Role of Federal agencies.
1983.109 Decision and orders of the administrative law judge.
1983.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1983.111 Withdrawal of complaints, objections, and findings;
settlement.
1983.112 Judicial review.
1983.113 Judicial enforcement.
1983.114 District court jurisdiction of retaliation complaints.
1983.115 Special circumstances; waiver of rules.
Authority: 15 U.S.C. 2087; 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. 1983.100 Purpose and scope.
(a) This part implements procedures of the employee protection
provision of the Consumer Product Safety Improvement Act (CPSIA), 15
U.S.C. 2087. CPSIA provides for employee protection from retaliation
because the employee has engaged in protected activity pertaining to
consumer product safety.
(b) This part establishes procedures under the CPSIA 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 CPSIA, 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. 1983.101 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 CPSIA.
(b) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(c) Commission means the Consumer Product Safety Commission.
(d) Complainant means the employee who filed a CPSIA complaint or
on whose behalf a complaint was filed.
(e) (1) Consumer product means any article, or component part
thereof, produced or distributed for sale to a consumer for use in or
around a permanent or temporary household or residence, a school, in
recreation, or otherwise, or for the personal use, consumption or
enjoyment of a consumer in or around a permanent or temporary household
or residence, a school, in recreation, or otherwise (the term
"consumer product" includes any mechanical device which carries or
conveys passengers along, around, or over a fixed or restricted route
or course or within a defined area for the purpose of giving its
passengers amusement, which is customarily controlled or directed by an
individual who is employed for that purpose and who is not a consumer
with respect to such device, and which is not permanently fixed to a
site, but does not include such a device that is permanently fixed to a
site).
(2) The term consumer product does not include:
(i) Any article which is not customarily produced or distributed
for sale to, or use or consumption by, or enjoyment of, a consumer;
(ii) Tobacco and tobacco products;
(iii) Motor vehicles or motor vehicle equipment (as defined by 49
U.S.C. 30102(a)(6) and (7));
(iv) Pesticides (as defined by the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. 136 et seq.));
(v) Any article or any component of any such article which, if sold
by the manufacturer, producer, or importer, would be subject to the tax
imposed by 26 U.S.C. 4181;
(vi) Aircraft, aircraft engines, propellers, or appliances (as
defined in 49 U.S.C. 40102(a));
(vii) Boats which could be subjected to safety regulation under 46
U.S.C. chapter 43; vessels, and appurtenances to vessels (other than
such boats), which could be subjected to safety regulation under title
52 of the Revised Statutes or other marine safety statutes administered
by the department in which the Coast Guard is operating; and equipment
(including associated equipment, as defined in 46 U.S.C. 2101(1)) to
the extent that a risk of injury associated with the use of such
equipment on boats or vessels could be eliminated or reduced by actions
taken under any statute referred to in this definitional section;
(viii) Drugs, devices, or cosmetics (as such terms are defined in
21 U.S.C. 321(g), (h), and (i)); or
(ix) Food (the term "food" means all "food," as defined in 21
U.S.C. 321(f), including poultry and poultry products (as defined in 21
U.S.C. 453(e) and (f)), meat, meat food products (as defined in 21
U.S.C. 601(j)), and eggs and egg products (as defined in 21 U.S.C.
1033)).
(f) CPSIA means Section 219 of the Consumer Product Safety
Improvement Act of 2008, Public Law 110-314, August 14, 2008, codified
at 15 U.S.C. 2087.
(g) Distributor means a person to whom a consumer product is
delivered or sold for purposes of distribution in commerce, except that
such term does not include a manufacturer or retailer of such product.
(h) 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 manufacturer, private labeler, distributor, or
retailer.
(i) Manufacturer means any person who manufactures or imports a
consumer product. A product is manufactured if it is manufactured,
produced, or assembled.
(j) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(k) Private labeler means an owner of a brand or trademark on the
label of a consumer product which bears a private label. A consumer
product bears a private label if:
(i) The product (or its container) is labeled with the brand or
trademark of a person other than a manufacturer of the product,
(ii) The person with whose brand or trademark the product (or
container) is labeled has authorized or caused the product to be so
labeled, and
(iii) The brand or trademark of a manufacturer of such product does
not appear on such label.
(l) Retailer means a person to whom a consumer product is delivered
or sold for purposes of sale or distribution by such person to a
consumer.
(m) Respondent means the employer named in the complaint who is
alleged to have violated the Act.
(n) Secretary means the Secretary of Labor or person to whom
authority under CPSIA has been delegated.
(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. 1983.102 Obligations and prohibited acts.
(a) No manufacturer, private labeler, distributor, or retailer may
discharge or otherwise retaliate against, including, but not limited
to, intimidating, threatening, restraining, coercing, blacklisting or
disciplining, any employee with respect to the employee's compensation,
terms, conditions, or privileges of employment because the employee, whether
at the employee's initiative or in the ordinary course of the employee's
duties (or any person acting pursuant to a request of the employee),
engaged in any of the activities specified in paragraphs (b)(1) through
(4) of this section.
(b) An employee is protected against retaliation (as described in
paragraph (a) of this section) by a manufacturer, private labeler,
distributor, or retailer because he or she:
(1) Provided, caused to be provided, or is about to provide or
cause to be provided to the employer, the Federal Government or the
attorney general of a State, information relating to any violation of,
or any act or omission the employee reasonably believes to be a
violation of any provision of the Consumer Product Safety Act, as
amended by CPSIA, or any other Act enforced by the Commission, or any
order, rule, regulation, standard, or ban under any such Acts;
(2) Testified, or is about to testify, in a proceeding concerning
such violation;
(3) Assisted or participated, or is about to assist or participate,
in such a proceeding; or
(4) Objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any provision of the
Consumer Product Safety Act, as amended by CPSIA, or any other Act
enforced by the Commission, or any order, rule, regulation, standard,
or ban under any such Acts.
(c) This part shall have no application with respect to an employee
of a manufacturer, private labeler, distributor, or retailer who,
acting without direction from such manufacturer, private labeler,
distributor, or retailer (or such person's agent), deliberately causes
a violation of any requirement relating to any violation or alleged
violation of any order, regulation, or consumer product safety standard
under the Consumer Product Safety Act, as amended by CPSIA, or any
other law enforced by the Commission.
Sec. 1983.103 Filing of retaliation complaints.
(a) Who may file. An employee who believes that he or she has been
retaliated against by a manufacturer, private labeler, distributor, or
retailer in violation of CPSIA may file, or have filed by any person on
the employee's behalf, a complaint alleging such retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If the complainant is unable to file the
complaint in English, OSHA will accept the complaint in any language.
(c) Place of filing. The complaint should be filed with the OSHA
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
CPSIA occurs, any employee who believes that he or she has been
retaliated against in violation of the Act may file, or have filed by
any person on the employee's behalf, a complaint alleging such
retaliation. The date of the postmark, facsimile transmittal, 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.
Sec. 1983.104 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.
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 Consumer Product Safety Commission.
(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;
(ii) The respondent knew or suspected, actually or constructively,
that the employee engaged in the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the adverse action. The burden may be
satisfied, for example, if the complaint shows that the adverse action
took place shortly after the protected activity, giving rise to the
inference that it was a contributing factor in the adverse action. If
the required showing has not been made, the complainant (or the
complainant's legal counsel, if complainant is represented by counsel)
will be so notified and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent, 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 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. 1983.105, 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
CPSIA 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. 1983.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether or not
there is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of CPSIA.
(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.
(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
the respondent's legal counsel if the respondent is represented by
counsel). The findings and, where appropriate, the preliminary order
will inform the parties of the right to object to the findings and/or
order and to request a hearing, and of the right of the respondent to
request attorney's fees not exceeding $1,000 from the ALJ, regardless
of whether the respondent has filed objections, if the complaint was
frivolous or brought in bad faith. The findings and, where appropriate,
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 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 hearing has been timely filed as
provided at Sec. 1983.106. However, the portion of any preliminary
order requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and the order.
Subpart B--Litigation
Sec. 1983.106 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 under CPSIA, 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. 1983.105(b). The objections,
request for a hearing, and/or request for attorney's fees must be in
writing and state whether the objections are to the findings, the
preliminary order, and/or whether there should be an award of
attorney's fees. The date of the postmark, facsimile transmittal, or e-
mail communication is considered the date of filing; if the objection
is filed in person, by hand delivery or other means, the objection is
filed upon receipt. Objections must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, 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 shall not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the respondent's receipt of the findings and
preliminary order, regardless of any objections to the order. The
respondent may file a motion with the Office of Administrative Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or the
preliminary order shall become the final decision of the Secretary, not
subject to judicial review.
Sec. 1983.107 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, 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. 1983.108 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 proceedings. This right to participate includes, but
is not limited to, the right to petition for review of a decision of an
administrative law judge, including a decision approving or rejecting a
settlement agreement between the complainant and the respondent.
(2) Copies of 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 other parties.
(b) The Consumer Product Safety Commission, 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
Commission, copies of all pleadings in a case must be sent to the
Commission, whether or not it is participating in the proceeding.
Sec. 1983.109 Decision and orders of the administrative law judge.
(a) The decision of the administrative law judge will contain
appropriate findings, conclusions, and an order pertaining to the
remedies provided in paragraph (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.
1983.104(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 abate the violation, including, where
appropriate, reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. At the request of the complainant, the ALJ shall assess
against the respondent all costs and expenses (including attorney's and
expert witness fees) reasonably incurred.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ALJ determines that a complaint was
frivolous or was brought in bad faith, the judge 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 judge'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 ARB.
Sec. 1983.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney's
fees, must file a written petition for review with the Administrative
Review Board, U.S. Department of Labor, 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 petition for review must specifically identify the legal
conclusions or orders to which exception is taken. Any exception not
specifically urged ordinarily will be deemed to have been waived by the
parties. A petition must be filed within 10 business days of the date
of the decision of the 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,
Occupational Safety and Health Administration, 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. The ARB's
final decision will be served upon all parties and the Chief
Administrative Law Judge by mail. The final decision will also be
served on the Assistant Secretary, Occupational Safety and Health
Administration, 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 abate the violation, including
reinstatement of the complainant to that person's former position,
together with the compensation (including back pay and interest),
terms, conditions, and privileges of employment, and compensatory
damages. At the request of the complainant, the ARB will assess against
the respondent all costs and expenses (including attorney's and expert
witness fees) reasonably incurred.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent a reasonable attorney's fee, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1983.111 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 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/or
preliminary order.
(b) The Assistant Secretary may withdraw his or her findings and/or
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1983.106, 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 the 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 or order, and there are no other pending
objections, the Assistant Secretary's findings and 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 to 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 judge,
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. 1983.113.
Sec. 1983.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1983.109 and 1983.110, 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 local rules of the court.
Sec. 1983.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order,
including one ordering reinstatement, or a final order, including one
approving a settlement agreement, issued under the CPSIA, 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. In such civil actions, the district court will have
jurisdiction to grant all appropriate relief, including, but not
limited to, injunctive relief and compensatory damages, including:
(a) Reinstatement with the same seniority status that the employee
would have had, but for the discharge or retaliation;
(b) The amount of back pay, with interest; and
(c) Compensation for any special damages sustained as a result of
the discharge or retaliation, including litigation costs, expert
witness fees, and reasonable attorney's fees.
Sec. 1983.114 District court jurisdiction of retaliation complaints.
(a) If there has been no final decision of the Secretary within 210
days of the filing of the complaint, or within 90 days after receiving
a written determination, 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 on where the proceeding is pending, a notice of his or
her intention to file such a complaint. The notice must be served upon
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. 1983.115 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 CPSIA requires.
[FR Doc. 2010-21122 Filed 8-30-10; 8:45 am]
BILLING CODE 4510-26-P
