[Federal Register Volume 80, Number 43 (Thursday, March 5, 2015)][Rules and Regulations]
[Pages 11865-11885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05001]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1980
[Docket Number: OSHA-2011-0126]
RIN 1218-AC53
Procedures for the Handling of Retaliation Complaints Under
Section 806 of the Sarbanes-Oxley Act of 2002, as Amended
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document provides the final text of regulations governing
employee protection (retaliation or whistleblower) claims under section
806 of the Corporate and Criminal Fraud Accountability Act of 2002,
Title VIII of the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act),
which was amended by sections 922 and 929A of the Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), enacted
on July 21, 2010. An interim final rule (IFR) governing these
provisions and request for comment was published in the Federal
Register on November 3, 2011. Five comments were received. This rule
responds to those comments and establishes the final procedures and
time frames for the handling of retaliation complaints under Sarbanes-
Oxley, 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 of Labor), and judicial review of
the Secretary of Labor's final decision. It also sets forth the
Secretary of Labor's interpretations of the Sarbanes-Oxley
whistleblower provision on certain matters.
DATES: This final rule is effective on March 5, 2015.
FOR FURTHER INFORMATION CONTACT: Brian Broecker, Directorate of
Whistleblower Protection Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-4624, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email:
OSHA.DWPP@dol.gov. This is not a toll-free number. This Federal
Register publication is available in alternative formats. 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
Sarbanes-Oxley was first enacted on July 30, 2002. Title VIII is
designated as the Corporate and Criminal Fraud Accountability Act of
2002. Section 806, codified at 18 U.S.C. 1514A, is the "whistleblower
provision," which provides protection to employees against retaliation
by certain persons covered under the Act for engaging in specified
protected activity. The Act generally was designed to protect investors
by ensuring corporate responsibility, enhancing public disclosure, and
improving the quality and transparency of financial reporting and
auditing. The whistleblower provision is intended to protect employees
who report fraudulent activity and violations of Securities Exchange
Commission (SEC) rules and regulations that can harm innocent investors
in publicly traded companies.
Dodd-Frank amended the Sarbanes-Oxley whistleblower provision, 18
U.S.C. 1514A. The regulatory revisions described herein reflect these
statutory amendments and also seek to clarify and improve OSHA's
procedures for handling Sarbanes-Oxley whistleblower claims, as well as
to set forth OSHA's interpretations of the Act. To the extent possible
within the bounds of applicable statutory language, these revised
regulations are designed to be consistent with the procedures applied
to claims under other whistleblower statutes administered by OSHA,
including the Surface Transportation Assistance Act of 1982 (STAA), 29
CFR part 1978; the National Transit Systems Security Act (NTSSA) and
the Federal Railroad Safety Act (FRSA), 29 CFR part 1982; the Consumer
Product Safety Improvement Act of 2008 (CPSIA), 29 CFR part 1983; the
Employee Protection Provisions of Six Environmental Statutes and
Section 211 of the Energy Reorganization Act of 1974, as amended, 29
CFR part 24; the Affordable Care Act (ACA), 29 CFR part 1984; the
Consumer Financial Protection Act (CFPA), 29 CFR part 1985; the
Seaman's Protection Act (SPA), 29 CFR part 1986; and the FDA Food
Safety Modernization Act (FSMA), 29 CFR part 1987.
II. Summary of Statutory Procedures and Statutory Changes to the
Sarbanes-Oxley Whistleblower Provision
Sarbanes-Oxley's whistleblower provision, as amended by Dodd-Frank,
includes procedures that allow a covered employee to file a complaint
with the Secretary of Labor (Secretary) \1\ not later than 180 days
after the alleged retaliation or after the employee learns of the
alleged retaliation. Sarbanes-Oxley further provides that the rules and
procedures set forth in the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121(b), govern in
Sarbanes-Oxley actions. 18 U.S.C. 1514A(b)(2)(A). Accordingly, 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.
---------------------------------------------------------------------------
\1\ 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 Sarbanes-Oxley. Responsibility for receiving
and investigating complaints under Sarbanes-Oxley has been delegated
to the Assistant Secretary for Occupational Safety and Health.
Secretary of Labor's Order No. 01-2012 (Jan. 18, 2012), 77 FR 3912
(Jan. 25, 2012). 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 of Labor's Order 2-2012 (Oct. 19, 2012), 77 FR
69378 (Nov. 16, 2012).
---------------------------------------------------------------------------
The statute provides that the Secretary may conduct an
investigation only if the complainant has made a prima facie showing
that the protected activity was a contributing factor in the adverse
action alleged in the complaint and the respondent has not
demonstrated, through clear and convincing evidence, that the employer
would have taken the same adverse action in the absence of that
activity (see Section 1980.104 for a summary of the investigation
process). OSHA interprets the prima facie case requirement as allowing
the complainant to meet this burden through the complaint as
supplemented by interviews of the complainant.
After investigating a complaint, the Secretary will issue written
findings. If, as a result of the investigation, the Secretary finds
there is reasonable cause to believe that retaliation has occurred, the
Secretary must notify the respondent of those findings, along with a
preliminary order which includes all relief necessary to make the
employee whole, including, where appropriate: 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 fees.
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 Sarbanes-Oxley 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, Sarbanes-Oxley 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, will order all relief necessary to make the
employee whole, including, where appropriate: reinstatement of the
complainant to his or her former position together with the same
seniority status the complainant would have had but for the
retaliation; payment of 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 fees.
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.
Sarbanes-Oxley 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 180 days after the
filing of the complaint and there is no showing that such delay is due
to the bad faith of the complainant. The court will have jurisdiction
over the action without regard to the amount in controversy, and the
case will be tried before a jury at the request of either party.
Dodd-Frank, enacted on July 21, 2010, amended the Sarbanes-Oxley
whistleblower provision to make several substantive changes. First,
section 922(b) of Dodd-Frank added protection for employees from
retaliation by nationally recognized statistical rating organizations
(as defined in section 3(a) of the Securities Exchange Act of 1934 (15
U.S.C. 78c)) or their officers, employees, contractors, subcontractors,
and agents.\2\ Second, as noted above, section 922(c) of Dodd-Frank
extended the statutory filing period for retaliation complaints under
Sarbanes-Oxley from 90 days to 180 days after the date on which the
violation occurs or after the date on which the employee became aware
of the violation. Section 922(c) of Dodd-Frank also provided parties
with a right to a jury trial in district court actions brought under
Sarbanes-Oxley's "kick-out" provision, 18 U.S.C. 1514A(b)(1)(B),
which provides that, if the Secretary has not issued a final decision
within 180 days of the filing of the complaint and there is no showing
that there has been delay due to the bad faith of the complainant, the
complainant may bring an action at law or equity for de novo review in
the appropriate district court of the United States, which will have
jurisdiction over such action without regard to the amount in
controversy. Third, section 922(c) amended Sarbanes-Oxley to state that
the rights and remedies provided for in 18 U.S.C. 1514A may not be
waived by any agreement, policy form, or condition of employment,
including by a pre-dispute arbitration agreement, and to provide that
no pre-dispute arbitration agreement shall be valid or enforceable if
the agreement requires arbitration of a dispute arising under this
section.
---------------------------------------------------------------------------
\2\ Section 3(a) of the Securities Exchange Act of 1934 defines
a nationally recognized statistical ratings organization as a credit
rating agency that issues credit ratings certified by qualified
institutional buyers, in accordance with 15 U.S.C. 78o-
7(a)(1)(B)(ix), with respect to: financial institutions, brokers, or
dealers; insurance companies; corporate issuers; issuers of asset-
backed securities (as that term is defined in section 1101(c) of
part 229 of title 17, Code of Federal Regulations, as in effect on
September 29, 2006); issuers of government securities, municipal
securities, or securities issued by a foreign government; or a
combination of one or more categories of obligors described in any
of clauses (i) through (v); and is registered under 15 U.S.C. 78o-7
(15 U.S.C. 78c(a)(62)).
---------------------------------------------------------------------------
In addition, section 929A of Dodd-Frank clarified that companies
covered by the Sarbanes-Oxley whistleblower provision include any
company with a class of securities registered under section 12 of the
Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to
file reports under section 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78o(d)) including any subsidiary or affiliate whose
financial information is included in the consolidated financial
statements of such company. As explained in Johnson v. Siemens Building
Technologies, Inc., ARB No. 08-032, 2011 WL 1247202, at *11 (Mar. 31,
2011), section 929A merely clarified that subsidiaries and affiliates
are covered under the Sarbanes-Oxley whistleblower provision. Section
929A applies to all cases currently pending before the Secretary.
III. Summary of Regulations and Rulemaking Proceedings
On November 3, 2011, OSHA published in the Federal Register an IFR
revising rules governing the whistleblower provisions of Section 806 of
Sarbanes-Oxley. 76 FR 68084. OSHA included a request for public comment
on the interim rules by January 3, 2012.
In response, four organizations and one individual filed comments
with OSHA within the public comment period. Comments were received from
Mr. Hunter Levi; the National Whistleblower Center (NWC); Katz,
Marshall & Banks, LLP (Marshall); the Equal Employment Advisory Council
(EEAC); and the Society of Corporate Secretaries & Governance
Professionals (SCSGP).
OSHA has reviewed and considered the comments and now adopts this
final rule with minor revisions. The following discussion addresses the
comments, OSHA's responses, and any other changes to the provisions of
the rule. The provisions in the IFR are adopted and continued in this
final rule, unless otherwise noted below.
General Comments
Marshall commented that "in large part, the rules simply
effectuate changes made by [Dodd-Frank] and are rather modest in
scope," and wrote in support of several changes made in the IFR.
Marshall stated that Congress enacted Sarbanes-Oxley whistleblower
provisions to ensure that employees could raise concerns about
potentially harmful fraud on shareholders and others without fear of
retaliation. In response to anticipated comments that the rules "will
make pursuing a SOX whistleblower claim far less daunting," Marshall
noted, "why should OSHA procedures make pursuing a whistleblower
complaint daunting for an employee in a procedural sense?" (emphasis
in original). Marshall explained, "If the purpose of SOX whistleblower
protections is to encourage and facilitate the timely reporting of
financial fraud that can cause tremendous harm to the public good, the
administrative process should be as accessible as possible." Marshall
also commented on specific provisions of the rule; those comments are
addressed below.
SCSGP noted that Section 806 of Sarbanes-Oxley provides
whistleblowers with broad protection against retaliation, and its
safeguards were enhanced by the enactment of Dodd-Frank. SCSGP also
pointed to recent ARB case law and other provisions of Dodd-Frank that
provide expanded whistleblower protections. SCSGP commented that these
developments "underscore the need to ensure that employers are
provided adequate due process in the context of DOL's administration of
Section 806 complaints." SCSGP comments then focused on four aspects
of the IFR that SCSGP considers are "unauthorized by statute,
imbalanced, and unduly prejudicial to employers' reasonable
interests." Those specific comments and provisions are discussed in
detail below.
Mr. Levi asserted his belief that the IFR contained "new
provisions that violate the intent of Congress, ignore longstanding
precedent concerning the authority of the Secretary, and seek to create
a bogus legal exception to SOX Section 802, [18 U.S.C. 1519]; which
deals with the criminal obstruction of SOX in government proceedings."
Mr. Levi also asserted his belief that the revisions to which he
objects violate the rights of Sarbanes-Oxley complainants and increase
the risk of employer securities fraud. Mr. Levi's comments additionally
addressed two specific portions of the IFR Federal Register notice:
Section 1980.112 and the preamble discussion of Section 1980.114. OSHA
has addressed Mr. Levi's comments in the discussion of the specific
provisions below.
EEAC commented that the IFR accurately reflected the changes made
by Dodd-Frank, and commended OSHA for this effort. EEAC further
submitted that many of the additional changes incorporated in the IFR,
for purposes of clarification and improvement of the procedures, were
not directed by Dodd-Frank. EEAC respectfully submitted that many of
these changes "seem intentionally designed to make it easier for
claimants to file and prosecute, and more difficult for respondents to
defend," Sarbanes-Oxley whistleblower complaints. EEAC then commented
on several specific provisions of the rule, and those comments are
addressed below.
NWC, in support of its various suggested revisions, discussed the
overall remedial purpose of the Sarbanes-Oxley whistleblower
provisions, as well as the employee protection provisions of various
other statutes that OSHA enforces. NWC also commented specifically on
several provisions of the IFR, which are discussed below.
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Section 1980.100 Purpose and Scope
This section describes the purpose of the regulations implementing
Sarbanes-Oxley and provides an overview of the procedures covered by
these regulations. No comments were received on this section. However,
OSHA has added a statement in subparagraph (b) noting that these rules
reflect the Secretary's interpretations of the Act.
Section 1980.101 Definitions
This section includes general definitions applicable to Sarbanes-
Oxley's whistleblower provision. The interim final rule updated and
revised this section in light of Dodd-Frank's amendments to Sarbanes-
Oxley. In March 2014, the Supreme Court issued its decision in Lawson
v. FMR LLC, 134 S. Ct. 1158 (2014), in which it affirmed the
Department's view that protected employees under Sarbanes-Oxley's
whistleblower provision include employees of contractors to public
companies. No changes have been made to the definition of "employee"
in this rule, as the interim final rule's definition of "employee" is
consistent with the Supreme Court's decision. No comments were received
on this section of the interim final rule and no changes have been made
to this section.
Section 1980.102 Obligations and Prohibited Acts
This section describes the activities that are protected under
Sarbanes-Oxley and the conduct that is prohibited in response to any
protected activities.
The final rule, like the interim final rule, provides that an
employee is protected against retaliation by a covered person for any
lawful act done by the employee:
(1) To provide information, cause information to be provided, or
otherwise assist in an investigation regarding any conduct which the
employee reasonably believes constitutes a violation of 18 U.S.C. 1341
(mail fraud), 1343 (wire fraud), 1344 (bank fraud), or 1348 (securities
fraud), any rule or regulation of the Securities and Exchange
Commission, or any provision of Federal law relating to fraud against
shareholders, when the information or assistance is provided to or the
investigation is conducted by--
(i) A Federal regulatory or law enforcement agency;
(ii) Any Member of Congress or any committee of Congress; or
(iii) A person with supervisory authority over the employee (or
such other person working for the employer who has the authority to
investigate, discover, or terminate misconduct); or
(2) To file, cause to be filed, testify, participate in, or
otherwise assist in a proceeding filed or about to be filed (with any
knowledge of the employer) relating to an alleged violation of 18
U.S.C. 1341, 1343, 1344, or 1348, any rule or regulation of the
Securities and Exchange Commission, or any provision of Federal law
relating to fraud against shareholders.
In order to have a "reasonable belief" under Sarbanes-Oxley, a
complainant must have both a subjective, good faith belief and an
objectively reasonable belief that the complained-of conduct violates
one of the enumerated categories of law. See Lockheed Martin Corp. v.
ARB, 717 F.3d 1121, 1132 (10th Cir. 2013); Wiest v. Lynch, 710 F.3d
121, 131-32 (3d Cir. 2013); Sylvester v. Parexel Int'l LLC, ARB No. 07-
123, 2011 WL 2165854, at *12 (ARB May 25, 2011). The requirement that
the complainant have a subjective, good faith belief is satisfied so
long as the complainant actually believed that the conduct complained
of violated the relevant law. See Sylvester, 2011 WL
2165854, at *12 (citing Harp v. Charter Commc'ns, 558 F.3d 722, 723
(7th Cir. 2009)); Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir.
2009) (quoting Welch v. Chao, 536 F.3d 269, 277 n.4 (4th Cir. 2008)
("Subjective reasonableness requires that the employee `actually
believed the conduct complained of constituted a violation of pertinent
law."')). "[T]he legislative history of Sarbanes-Oxley makes clear
that its protections were `intended to include all good faith and
reasonable reporting of fraud, and there should be no presumption that
reporting is otherwise."' Sylvester, 2011 WL 2165854, at *11 (quoting
Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1002 (9th Cir. 2009)
(citing 148 Cong. Rec. S7418-01, S7420 (daily ed. July 26, 2002))).
The objective "reasonableness" of a complainant's belief is
typically determined "based on the knowledge available to a reasonable
person in the same factual circumstances with the same training and
experience as the aggrieved employee." Sylvester, 2011 WL 2165854, at
*12 (internal quotation marks and citation omitted); Harp, 558 F.3d at
723. However, the complainant need not show that the conduct complained
of constituted an actual violation of law. Pursuant to this standard,
an employee's whistleblower activity is protected where it is based on
a reasonable, but mistaken, belief that a violation of the relevant law
has occurred or is likely to occur. See Sylvester, 2011 WL 2165854, at
*13 (citing Welch, 536 F.3d at 277); Allen v. Admin. Rev. Bd., 514 F.3d
468, 476-77 (5th Cir. 2008); Melendez v. Exxon Chemicals Americas, ARB
No. 96-051, slip op. at 21 (ARB July 14, 2000) ("It is also well
established that the protection afforded whistleblowers who raise
concerns regarding statutory violations is contingent on meeting the
aforementioned `reasonable belief' standard rather than proving that
actual violations have occurred.").
NWC commented on this section and suggested that an additional
paragraph be added to this section, addressing the question of
extraterritorial application of Section 806 of Sarbanes-Oxley. At the
time of its comment, this question was before the ARB for
consideration. NWC noted that because the issue of extraterritorial
application was pending, the Department of Labor (Department) could
"facilitate determination of these issues by making a few
clarifications in the regulations." NWC suggested OSHA add a paragraph
29 CFR 1980.102(c), that provides as follows: "(c) The employee
protections of the Act shall have the same extraterritorial application
as the Securities Exchange Act, including the Foreign Corrupt Practices
Act (FCPA), 15 U.S.C. 78dd-1." However, since the writing of the
comment, the ARB has issued its decision on this question, holding that
"Section 806(a)(1) does not allow for its extraterritorial
application." Villanueva v. Core Laboratories NV, No. 09-108, 2011 WL
7021145, at *9 (ARB Dec. 22, 2011), affirmed on other grounds,
Villanueva v. U.S. Dep't of Labor, 743 F.3d 103 (5th Cir. 2014). The
ARB's decision in Villanueva provides the Secretary's views on the
extraterritorial application of the SOX whistleblower provision and
OSHA therefore declines to include NWC's suggested paragraph on this
issue. No other comments were received on this section and no changes
have been made to it.
Section 1980.103 Filing of Retaliation Complaints
This section explains the requirements for filing a retaliation
complaint under Sarbanes-Oxley. The Dodd-Frank 2010 statutory
amendments changed the statute of limitations for filing a complaint
from 90 to 180 days after the date on which the violation occurs, or
after the date on which the employee became aware of the violation.
This change was reflected in the IFR and is continued here. Therefore,
to be timely, a complaint must be filed within 180 days of when the
alleged violation occurs, or after the date on which the employee
became aware of the violation. Under Delaware State College v. Ricks,
449 U.S. 250, 258 (1980), the time of the alleged violation is
considered to be when the retaliatory decision has been both made and
communicated to the complainant. The time for filing a complaint under
Sarbanes-Oxley may be tolled for reasons warranted by applicable case
law. For example, OSHA may consider the time for filing a Sarbanes-
Oxley complaint equitably tolled if the complainant mistakenly files a
complaint with another agency instead of OSHA within 180 days after
becoming aware of the alleged violation. EEAC expressed its support for
this revision.
The IFR also amended Section 1980.103(b) to change the requirement
that whistleblower complaints to OSHA under Sarbanes-Oxley "must be in
writing and should include a full statement of the acts and omissions,
with pertinent dates, which are believed to constitute the
violations." Consistent with OSHA's procedural rules under other
whistleblower statutes, complaints filed under Sarbanes-Oxley now need
not be in any particular form. They may be either oral or in writing.
When a complaint is made orally, OSHA will reduce the complaint to
writing. If a complainant is not able to file the complaint in English,
the complaint may be filed in any language. With the consent of the
employee, complaints may be filed by any person on the employee's
behalf. As noted below, several comments were received on this section
of the interim final rule. No changes have been made in response to the
comments. However, the term "email" in paragraph (d) has been changed
to "electronic communication transmittal" because OSHA has published
an on-line complaint form on its Web site,
http://www.whistleblowers.gov/complaint_page.html.
SCSGP commented that it is "very concerned that the proposed `oral
complaint' provision will have unintended negative consequences, and
[it] urge[s] OSHA not to enact it." SCSGP further commented that the
new rule is "unnecessary because SOX complaints most often are filed
by sophisticated professionals," and that the rule shifts the OSHA
investigator's role from one of a neutral fact-finder to an advocate
for the complainant. SCSGP also commented that the rule lacks any
standard for the investigator's creation of the complaint. SCSGP also
raised the concern that the new rule "presents the risk that the
complainant will later treat the investigator as an adverse witness in
the litigation." SCSGP explained that in cases where a complainant who
proceeds to further stages of the administrative proceeding, or a
complainant who transfers their case to federal district court, may
seek to modify or expand their original complaint by arguing that the
OSHA investigator did not accurately record the complainant's
allegations at the time of the initial complaint. SCSGP explained this
could place the investigator in the role of an adverse witness and
subject him or her to scrutiny for failing to capture the oral
complaint in totality.
Similarly, EEAC commented that it questioned the "rationale of
eliminating the requirement that a written complaint contain the full
details concerning the alleged violation." EEAC commented that written
complaints emphasize the gravity of invoking protection under Sarbanes-
Oxley and discourage frivolous complaints. The EEAC also commented on
the provision that complaints may be made in any language, stating that
"[t]he agency offers no guidance on by whom, if at all, the complaint
will be translated into English" nor how a respondent may submit its
own proposed translation.
EEAC respectfully recommended that this final rule make clear how these
issues would be resolved. Conversely, Marshall wrote in support of
these revisions.
OSHA has considered these comments and adopts the changes made in
the IFR. The statutory text of SOX does not require written complaints
to OSHA. See 29 U.S.C. 1514A(b)(1)(A). Further, as Marshall noted in
his comment, "[m]aking it clear that OSHA can accept oral complaints
is better described as a clarification than as an amendment to existing
procedures." Indeed, the Department has long permitted oral complaints
under the environmental statutes. See, e.g., Roberts v. Rivas
Environmental Consultants, Inc., ARB No. 97-026, 1997 WL 578330, at *3
n.6 (ARB Sept. 17, 1997) (complainant's oral statement to an OSHA
investigator, and the subsequent preparation of an internal memorandum
by that investigator summarizing the oral complaint, satisfies the "in
writing" requirement of CERCLA, 42 U.S.C. 9610(b), and the
Department's accompanying regulations in 29 CFR part 24); Dartey v.
Zack Co. of Chicago, No. 1982-ERA-2, 1983 WL 189787, at *3 n.1 (Sec'y
of Labor Apr. 25, 1983) (adopting administrative law judge's findings
that complainant's filing of a complaint to the wrong DOL office did
not render the filing invalid and that the agency's memorandum of the
complaint satisfied the "in writing" requirement of the Energy
Reorganization Act ("ERA") and the Department's accompanying
regulations in 29 CFR part 24). Moreover, accepting oral complaints
under Sarbanes-Oxley is consistent with OSHA's longstanding practice of
accepting oral complaints filed under Section 11(c) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. 660(c); Section 211 of the
Asbestos Hazard Emergency Response Act of 1986, 15 U.S.C. 2651; Section
7 of the International Safe Container Act of 1977, 46 U.S.C. 80507; and
STAA, 49 U.S.C. 31105. This change also accords with the Supreme
Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp.,
in which the Court held that the anti-retaliation provision of the Fair
Labor Standards Act, which prohibits employers from discharging or
otherwise discriminating against an employee because such employee has
"filed any complaint," protects employees' oral complaints of
violations of the Fair Labor Standards Act. 563 U.S. __, 131 S. Ct.
1325 (2011).
Furthermore, OSHA believes that its acceptance of oral complaints
under Sarbanes-Oxley is most consistent with the ARB's decisions in
Sylvester and Evans v. U.S. Environmental Protection Agency, ARB No.
08-059 (ARB Jul. 31, 2012). In Sylvester, noting that OSHA does not
require complaints under Sarbanes-Oxley to be in any form and that
under 29 CFR 1980.104(b) OSHA has a duty, if appropriate, to interview
the complainant to supplement the complaint, the ARB held that the
federal court pleading standards established in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)
do not apply to Sarbanes-Oxley whistleblower complaints filed with
OSHA. 2011 WL 2165854, at *9-10. In Evans, the ARB articulated the
legal standard for analyzing the sufficiency of a whistleblower
complaint brought before an ALJ. The ARB held that the whistleblower
complaint need only give "fair notice" of the protected activity and
adverse action to withstand a motion to dismiss for failure to state a
claim. ARB No. 08-059, slip op. at *9. Furthermore, the ARB instructed
that an ALJ should not act on a motion to dismiss for failure to state
a claim until it is clear that the complainant has filed a document
that articulates the claims presented to the OALJ for hearing following
OSHA's findings. Id., at *8. Complaints filed with OSHA under this
section are simply "informal documents that initiate an investigation
into allegations of unlawful retaliation in violation of the [Act]."
Id., at *7. Permitting a complainant to file a complaint orally or in
writing or in any language is consistent with the purpose of the
complaint filed with OSHA, which is to trigger an investigation
regarding whether there is reasonable cause to believe that retaliation
occurred.
Furthermore, upon receipt of a complaint, OSHA must provide the
respondent notice of the filing of the complaint, the allegations
contained in the complaint, and the substance of the evidence
supporting the complaint. 49 U.S.C. 42121(b)(2)(A); 29 CFR 1980.104(a).
OSHA may not undertake an investigation of the complaint unless the
complaint, supplemented as appropriate by interviews of the
complainant, makes a prima facie allegation of retaliation. 49 U.S.C.
42121(b)(2)(B); 29 CFR 1980.104(e). If OSHA commences an investigation,
the respondent has the opportunity to submit a response to the
complaint and meet with the investigator to present statements from
witnesses. 49 U.S.C. 42121(b)(2)(A); 29 CFR 1980.104(b). To fulfill
these statutory responsibilities, when OSHA receives an oral complaint,
OSHA gathers as much information as it can from the complainant about
the complainant's allegations so that the respondent will be able to
adequately respond to the complaint and so that OSHA may properly
determine the scope of any investigation into the complaint. OSHA also
generally provides the respondent with a copy of its memorandum
memorializing the complaint, and the respondent has the opportunity to
request that OSHA clarify the allegations in the complaint if
necessary.
Regarding SCSGP's comment that the investigator may be later called
as an adverse witness in litigation, OSHA understands this comment to
be implicating the issue of adding untimely claims or exhaustion of
remedies. Under Section 806, an employee must file a complaint with
OSHA alleging a violation of this provision and allow OSHA an
opportunity to investigate before pursuing the claim before an ALJ or
in federal court. 18 U.S.C. 1514A(b)(1)(A). Failure to raise a
particular claim or allegation before OSHA can result in that claim
being barred in subsequent administrative or federal court proceedings
for failure to "exhaust administrative remedies." See, e.g., Willis
v. Vie Financial Group, Inc., No. Civ. A. 04-435, 2004 WL 1774575 (E.D.
Pa. Aug. 6, 2004) (barring a complainant's claim because he did not
amend his OSHA complaint to assert post-complaint retaliation); Carter
v. Champion Bus, Inc., ARB No. 05-076, slip op. at *9 (ARB Sept. 29,
2006) (the ARB generally will not consider arguments or evidence first
raised on appeal); Saporito v. Central Locating Services, Ltd., ARB No.
05-004, slip op. at *9 (ARB Feb. 28, 2006) (the ARB was unwilling to
entertain an argument from the complainant that he had engaged in
certain activity where he had not presented that theory to the ALJ, and
where the argument was supported by no "references to the record,
legal authority or analysis."). While a dispute could arise in a
whistleblower complaint filed orally regarding whether OSHA properly
recorded the allegations at issue in the complaint and whether the
complainant properly exhausted his administrative remedies, this
possibility is not new, as OSHA's historical practice has been to
accept complaints orally and reduce them to writing and to supplement
complaints with interviews of the complainant as necessary. In
addition, the possibility that a dispute could arise regarding the
claims raised to OSHA does not outweigh the benefits to whistleblowers
and the public of allowing such complaints to be filed orally with OSHA.
In response to EEAC's comment regarding OSHA's acceptance of
complaints in any language, OSHA believes that its procedures are fair
and ensure the accuracy of the complaint and evidence submitted to
OSHA. Under current practices for receiving complaints, OSHA uses
professional interpretive services to communicate with employees
speaking a language other than English. The OSHA investigator will
reduce the complaint to writing, in English, as communicated to him or
her through the interpretive service. Translation services are also
available to interview complainants throughout an investigation.
Additionally, should the complainant wish to submit his or her
complaint in another language in writing, or submit additional
documents throughout the investigation in another language, OSHA will
use document translation services. Should a respondent wish to see an
original document, as well as any translation, this information may be
exchanged in accordance with the procedures and privacy protections set
forth in Section 1980.104 (discussed in detail below). A respondent
then would be free to submit his or her own translation of any such
document to the OSHA investigator in accordance with the investigation
procedures set forth in Section 1980.104.
Section 1980.104 Investigation
This section describes the procedures that apply to the
investigation of Sarbanes-Oxley complaints. Paragraph (a) of this
section outlines the procedures for notifying the parties and the SEC
of the complaint and notifying respondents of their rights under these
regulations. Paragraph (b) describes the procedures for the respondent
to submit its response to the complaint. Paragraph (c) of the IFR
specified that OSHA will provide to the complainant (or the
complainant's legal counsel if the complainant is represented by
counsel) a copy of all of respondent's submissions to OSHA that are
responsive to the complainant's whistleblower complaint at a time
permitting the complainant an opportunity to respond to those
submissions. Paragraph (c) further provided that before providing such
materials to the complainant, OSHA will redact them in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable
confidentiality laws. Paragraph (d) of this section discusses
confidentiality of information provided during investigations.
Paragraph (e) of this section sets forth the applicable burdens of
proof. Paragraph (f) describes the procedures OSHA will follow prior to
the issuance of findings and a preliminary order when OSHA has
reasonable cause to believe that a violation has occurred.
The Sarbanes-Oxley whistleblower provision mandates that an action
under the Act is governed by the burdens of proof set forth in AIR21,
49 U.S.C. 42121(b). The statute requires that a complainant make an
initial prima facie showing that a protected activity was "a
contributing factor" in the adverse action alleged in the complaint,
i.e., that the protected activity, alone or in combination with other
factors, affected in some way the outcome of the employer's decision.
The complainant will be considered to have met the required burden if
the complaint on its face, supplemented as appropriate through
interviews of the complainant, alleges the existence of facts and
either direct or circumstantial evidence to meet the required showing.
Complainant's burden may be satisfied, for example, if he or she shows
that the adverse action took place within a temporal proximity of the
protected activity, or at the first opportunity available to the
respondent, giving rise to the inference that it was a contributing
factor in the adverse action. See, e.g., Porter v. Cal. Dep't of Corr.,
419 F.3d 885, 895 (9th Cir. 2005) (years between the protected activity
and the retaliatory actions did not defeat a finding of a causal
connection where the defendant did not have the opportunity to
retaliate until he was given responsibility for making personnel
decisions).
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 Sarbanes-Oxley, serves a "gatekeeping function"
that "stem[s] 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. 49 U.S.C. 42121(b)(2)(B)(ii).
Thus, OSHA must dismiss a complaint under Sarbanes-Oxley and not
investigate further 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 statute requires OSHA to determine whether there is
reasonable cause to believe that protected activity was a contributing
factor in the alleged adverse action. A contributing factor is "any
factor which, alone or in connection with other factors, tends to
affect in any way the outcome of the decision." Marano v. Dep't of
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (Whistleblower Protection
Act, 5 U.S.C. 1221(e)(1)); see, e.g., Lockheed Martin Corp., 717 F.3d
at 1136. For protected activity to be 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) (citing Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing
contributing factor test under the Sarbanes-Oxley whistleblower
provision), aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S.
Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).
If OSHA finds reasonable cause to believe that the alleged
protected activity was a contributing factor in the adverse action,
OSHA may not order relief if the employer demonstrates by "clear and
convincing evidence" that it would have taken the same action in the
absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv).
The "clear and convincing evidence" standard is a higher burden of
proof than a "preponderance of the evidence" standard. Clear and
convincing evidence is evidence indicating that the thing to be proved
is highly probable or reasonably certain. Clarke v. Navajo Express,
Inc., No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011)
(discussing burdens of proof under analogous whistleblower provision in
STAA).
NWC and the EEAC commented on this section. NWC suggested
clarification of what "other applicable confidentiality laws" might
apply to redaction of respondent's submissions, before providing them
to the complainant. NWC also suggested several additions and revisions
to this section, as well as to Section 1980.107, to further protect the
confidentiality of complainants. NWC pointed to the confidentiality
provisions of Section 922 of the Dodd-Frank Act, creating a
whistleblower program under section 21F of the Securities Exchange Act,
\3\ as well as recent developments in the United States Tax Court, and
suggested that the Department bring its own confidentiality practices
into conformity.
---------------------------------------------------------------------------
\3\ Section 21F(h)(2)(A) prevents disclosure of identifying
information by the Commission and its officers, except in accordance
with the provisions of the Privacy Act, unless and until required to
be disclosed to a defendant or respondent in connection with a
public proceeding instituted by the Commission or any other
specified entity. 15 U.S.C. 78u-6(h)(2).
---------------------------------------------------------------------------
The EEAC commented that it was extremely concerned that the
modifications made in this section in the IFR would increase the amount
of information provided to the complainant during the investigation but
reduce information provided to the respondent. As OSHA explained in the
preamble to the IFR, those revisions were aimed at aiding OSHA's
ability to conduct a "full and fair investigation." EEAC submitted
that the same logic supports providing respondents with all of the
information that OSHA receives from the complainant during the
investigation. Specifically, EEAC suggested that OSHA retain the former
language in paragraph (a) regarding notice to the respondent upon
receipt of a complaint, and revise paragraph (c) to provide that the
same information will be provided to respondents as is provided to
complainants during the investigation. EEAC also suggested paragraph
(f) include language that if the complainant submits new information at
this stage, the employer will be given a copy and the opportunity to
respond before OSHA makes a final determination on the complaint.
Regarding NWC's suggestion that OSHA provide more specific
information about the confidentiality laws that may protect portions of
the information submitted by a respondent, OSHA anticipates that the
vast majority of respondent submissions will not be subject to any
confidentiality laws. However, in addition to the Privacy Act, a
variety of confidentiality provisions may protect information submitted
during the course of an investigation. For example, a respondent may
submit information that the respondent identifies as confidential
commercial or financial information exempt from disclosure under the
Freedom of Information Act (FOIA). OSHA's procedures for handling
information identified as confidential during an investigation are
explained in OSHA's Whistleblower Investigations Manual available at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=5061.
Additionally, OSHA has considered NWC's suggestions regarding
complainants' confidentiality. OSHA agrees that protecting
complainants' confidentiality and privacy to the extent possible under
the law is essential. However, OSHA believes that existing procedures
and the Privacy Act of 1974, 5 U.S.C. 552a, et seq., provide sufficient
safeguards. The Whistleblower Investigations Manual instructs that
while a case is an open investigation, information contained in the
case file generally may not be disclosed to the public. Once a case is
closed, complainants continue to be protected from third party public
disclosure under the Privacy Act. 5 U.S.C. 552a(k)(2). However, if a
case moves to the ALJ hearing process, it becomes a public proceeding
and the public has a right of access to information under various laws
and the Constitution. See Newport v. Calpine Corp., ALJ No. 2007-ERA-
00007, slip op. at *6 (Feb. 12, 2008), available at
http://www.oalj.dol.gov/PUBLIC/WHISTLEBLOWER/DECISIONS/ALJ_DECISIONS/ERA/2007ERA00007A.PDF*
(discussing hearings before the ALJ under the
analogous statutory provisions of the ERA and the public right of
access). Information submitted as evidence during these proceedings
becomes the exclusive record for the Secretary's decision. Public
disclosure of the record for the Secretary's decision is governed by
the Freedom of Information Act and the Privacy Act. Id. A party may
request that a record be sealed to prevent disclosure of such
information. However, the Constitution and various federal laws cited
in Newport govern the granting of such a motion; OSHA cannot circumvent
these authorities by rulemaking. See also Thomas v. Pulte Homes, Inc.,
ALJ No. 2005-SOX-00009, slip op. at *2-3 (Aug. 9, 2005) (noting that in
order to prevent disclosure of such information, a moving party must
request a protective order pursuant to the OALJ rules of procedure; the
standard for granting such a motion is high and the burden of making a
showing of good cause rests with the moving party).
In response to EEAC's comments and suggestions, OSHA agrees that
respondents must be afforded fair notice of the allegations and
substance of the evidence against them. OSHA also believes that the
input of both parties in the investigation is important to ensuring
that OSHA reaches the proper outcome during its investigation. Thus, in
response to EEAC's comments, Section 1980.104(a) has been revised to
more closely mirror AIR21's statutory requirement, incorporated by
Sarbanes-Oxley, in 49 U.S.C. 42121(b)(1) that after receiving a
complaint, the Secretary shall notify the respondent of the filing of
the complaint, of the allegations contained in the complaint, and of
the substance of the evidence supporting the complaint. In response to
EEAC's comment regarding paragraph (c), OSHA notes that its current
policy is to request that each party provide the other parties with a
copy of all submissions to OSHA that are responsive to the
whistleblower complaint. Where the parties do not so provide, OSHA will
ensure that each party is provided with such information, redacted as
appropriate. OSHA will also ensure that each party is provided with an
opportunity to respond to the other party's submissions. OSHA has
revised paragraph (c) to clarify these policies regarding information
sharing during the course of an investigation. Further information
regarding OSHA's nonpublic disclosure and information sharing policies
may also be found in the Whistleblower Investigations Manual. Regarding
EEAC's suggestion for paragraph (f), it is already OSHA's policy to
provide the respondent a chance to review any additional evidence on
which OSHA intends to rely that is submitted by the complainant at this
stage and to provide the respondent an opportunity to respond to any
such additional evidence. This policy is necessary to achieve the
purpose of paragraph (f), which is to afford respondent due process
prior to ordering preliminary reinstatement as required by the Supreme
Court's decision in Brock v. Roadway Express, Inc., 481 U.S. 252
(1987). OSHA also notes that the Whistleblower Investigations Manual
provides guidance to investigators on sharing information with both
parties throughout the investigation.
OSHA has made additional minor edits throughout this section to
clarify the applicable procedures and burdens of proof.
Section 1980.105 Issuance of Findings and Preliminary Orders
Throughout this section, minor changes were made as needed to
clarify the provision without changing its meaning. 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, in accordance with the statute, 18 U.S.C.
1514A(c), the Assistant Secretary will order "all relief necessary to
make the employee whole," including preliminary reinstatement, 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 fees.
Interest on back pay will be calculated using the interest rate
applicable to underpayment of taxes under 26 U.S.C. 6621 and will be
compounded daily. In the Secretary's view, 26 U.S.C. 6621 provides the
appropriate rate of interest to ensure that victims of unlawful
retaliation under Sarbanes-Oxley are made whole. The Secretary has long
applied the interest rate in 26 U.S.C. 6621 to calculate interest on
back pay in whistleblower cases. Doyle v. Hydro Nuclear Servs., Nos.
99-041, 99-042, 00-012, 2000 WL 694384, at *14-15, 17 (ARB May 17,
2000); see also Cefalu v. Roadway Express, Inc., ARB Case No. 09-070,
2011 WL 1247212, at *2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express,
ARB Case Nos. 07-073, 08-051, 2010 WL 1776974, at *8 (ARB Apr. 10,
2010); Murray v. Air Ride, Inc., ARB Case No. 00-045, slip op. at 9
(ARB Dec. 29, 2000). Section 6621 provides the appropriate measure of
compensation under Sarbanes-Oxley and other DOL-administered
whistleblower statutes because it ensures the complainant will be
placed in the same position he or she would have been in if no unlawful
retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB
Case No. 99-061, slip op. at 5 (ARB July 16, 1999) (interest awards
pursuant to Sec. 6621 are mandatory elements of complainant's make-
whole remedy). Section 6621 provides a reasonably accurate prediction
of market outcomes (which represents the loss of investment opportunity
by the complainant and the employer's benefit from use of the withheld
money) and thus provides the complainant with appropriate make-whole
relief. See EEOC v. Erie Cnty., 751 F.2d 79, 82 (2d Cir. 1984)
("[s]ince the goal of a suit under the [Fair Labor Standards Act] and
the Equal Pay Act is to make whole the victims of the unlawful
underpayment of wages, and since [Sec. 6621] has been adopted as a
good indicator of the value of the use of money, it was well within"
the district court's discretion to calculate prejudgment interest under
Sec. 6621); New Horizons for the Retarded, 283 N.L.R.B. No. 181, 1173
(May 28, 1987) (observing that "the short-term Federal rate [used by
Sec. 6621] is based on average market yields on marketable Federal
obligations and is influenced by private economic market forces").
Similarly, as explained in the interim final rule, daily compounding of
the interest award ensures that complainants are made whole for
unlawful retaliation in violation of Sarbanes-Oxley. 76 FR 68088.
In ordering back pay, OSHA also will require the respondent to
submit the appropriate documentation to the Social Security
Administration (SSA) allocating the back pay to the appropriate
calendar quarters. Requiring the reporting of back pay allocation to
the SSA serves the remedial purposes of Sarbanes-Oxley by ensuring that
employees subjected to retaliation are truly made whole. See Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (NLRB Aug. 8,
2014). As the NLRB explained, when back pay is not properly allocated
to the years covered by the award, a complainant may be disadvantaged
in several ways. First, improper allocation may interfere with a
complainant's ability to qualify for any old-age Social Security
benefit. Id. at *3 ("Unless a [complainant's] multiyear backpay award
is allocated to the appropriate years, she will not receive appropriate
credit for the entire period covered by the award, and could therefore
fail to qualify for any old-age social security benefit."). Second,
improper allocation may reduce the complainant's eventual monthly
benefit. Id. As the NLRB explained, "if a backpay award covering a
multi-year period is posted as income for 1 year, it may result in SSA
treating the [complainant] as having received wages in that year in
excess of the annual contribution and benefit base." Id. Wages above
this base are not subject to Social Security taxes, which reduces the
amount paid on the employee's behalf. "As a result, the
[complainant's] eventual monthly benefit will be reduced because
participants receive a greater benefit when they have paid more into
the system." Id. Finally, "social security benefits are calculated
using a progressive formula: although a participant receives more in
benefits when she pays more into the system, the rate of return
diminishes at higher annual incomes." Therefore, a complainant may
"receive a smaller monthly benefit when a multiyear award is posted to
1 year rather than being allocated to the appropriate periods, even if
social security taxes were paid on the entire amount." Id. The purpose
of a make-whole remedy such as back pay is to put the complainant in
the same position the complainant would have been absent the prohibited
retaliation. That purpose is not achieved when the complainant suffers
the disadvantages described above. The Secretary believes that
requiring proper SSA allocation is necessary to achieve the make-whole
purpose of a back pay award.
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. If no objections are
filed within 30 days of receipt of the findings, the findings and any
preliminary order of the Assistant Secretary become the final decision
and order of the Secretary. If objections are timely filed, any order
of preliminary reinstatement will take effect, but the remaining
provisions of the order will not take effect until administrative
proceedings are completed.
The provision that reinstatement would not be appropriate where the
respondent establishes that the complainant is a security risk was
removed from 1980.105(a)(1) in the IFR. OSHA believes that the
determination of whether reinstatement is inappropriate in a given case
is best made on the basis of the facts of each case and the relevant
case law, and thus it is not necessary in these procedural rules to
define the circumstances in which reinstatement is not a proper remedy.
This amendment also makes these procedural regulations consistent with
the rules under STAA, NTSSA, FRSA, and CPSIA, which do not contain this
statement.
SCSGP, EEAC, and Marshall commented on this removal, as well as on
the overall guidance provided when determining whether preliminary
reinstatement is appropriate. SCSGP commented that the IFR lacked "any
standards governing the issuance of preliminary reinstatement orders"
and that the rule should contain appropriate safeguards that
preliminary reinstatement is warranted under the circumstances, rather
than presuming that reinstatement is proper. SCSGP suggested that OSHA
include in the final rule a list of non-exhaustive factors to be
considered by the courts to determine when reinstatement is
appropriate, including whether hostility exists between the employee
and the company, and whether the employee's position no longer exists.
EEAC "urge[d] OSHA to reinstate this `security risk' exception" in
the final rule. EEAC also submitted that OSHA's reasoning for
removing the exception is flawed (that the determination of whether
reinstatement is inappropriate in a given case should be based on the
factual circumstances of that case). EEAC first pointed to Sarbanes-
Oxley's incorporation of the AIR21 rules and procedures and that the
security risk exception is consistent with OSHA's whistleblower
regulations promulgated under AIR21. EEAC also noted that the security
risk exception was predicated on the respondent establishing that the
complainant is in fact a security risk prior to the exception taking
effect and thus would be determined on a case-by-case basis in this
manner. Marshall wrote in support of the removal of the security risk
language and supported the explanation that determinations of whether
reinstatement is appropriate should be based on the facts of the
particular case. Marshall noted that the Act itself does not contain
any statutory prohibition of reinstatement under certain circumstances.
OSHA disagrees that the rule requires any further guidance on when
preliminary reinstatement is appropriate. First, OSHA emphasizes that
Congress intended that employees be preliminarily reinstated to their
positions if OSHA finds reasonable cause to believe that they were
discharged in violation of Sarbanes-Oxley, thus creating the
presumption it is the appropriate remedy. Neither Sarbanes-Oxley nor
AIR21 specify any statutorily predetermined circumstances under which
preliminary reinstatement would be inappropriate. Furthermore, although
the regulations governing proceedings under AIR21 reference a security
risk exception, this exception is not in the statutory text
incorporated by Sarbanes-Oxley. See 18 U.S.C. 1514(b)(1)(A) (. . .
shall be governed "under the rules and procedures set forth in section
42121(b) of title 49, United States Code."). This reference to AIR21's
statutory procedures does not impose an obligation for OSHA to also
incorporate any procedural regulations promulgated under AIR21 not
mandated by the statute.
OSHA agrees that there may be circumstances where preliminary
reinstatement is inappropriate. However, OSHA believes that the rule as
drafted provides sufficient safeguards for these situations, as well as
sufficient guidance to OSHA, ALJs, and the ARB as to when those
safeguards may be appropriate. First, the rule provides the ALJ and ARB
discretion to grant a stay of an order of preliminary reinstatement
(See Sections 1980.106(b) and 1980.110(b)). As discussed in detail in
the discussion of Section 1980.106, ALJs and the ARB can refer to long-
standing precedential case law in making this determination. Second, in
appropriate circumstances, OSHA may order economic reinstatement in
lieu of actual reinstatement, which is also discussed in detail below.
In Hagman v. Washington Mutual Bank, Inc., the ALJ delineated several
factors to consider when making this determination. ALJ No. 2005-SOX-
73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that while
reinstatement is the "preferred and presumptive remedy" under
Sarbanes-Oxley, "[f]ront pay may be awarded as a substitute when
reinstatement is inappropriate due to: (1) An employee's medical
condition that is causally related to her employer's retaliatory
action; (2) manifest hostility between the parties; (3) the fact that
claimant's former position no longer exists; or (4) the fact that
employer is no longer in business at the time of the decision")
(internal citations omitted). Many of these factors are similar to the
factors SCSGP suggested be included in the rule. Thus, given the
existing safeguards in place and sufficient guidance for when such
safeguards are appropriate, OSHA declines to include the security risk
exception in the final rule and declines to add additional guidance to
the rule for when preliminary reinstatement is appropriate.
As mentioned above, 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" is
akin to an order of front pay and is frequently employed in cases
arising under Section 105(c) of the Federal Mine Safety and Health Act
of 1977, which protects miners from retaliation. 30 U.S.C. 815(c); see,
e.g., Sec'y of Labor on behalf of York v. BR&D Enters., Inc., 23 FMSHRC
697, 2001 WL 1806020, at *1 (June 26, 2001). Front pay has been
recognized as a possible remedy in cases under Sarbanes-Oxley and other
whistleblower statutes enforced by OSHA in circumstances where
reinstatement would not be appropriate. See, e.g., Hagman, 2006 WL
6105301; Hobby v. Georgia Power Co., ARB Nos. 98-166, 98-169 (ARB Feb.
9, 2001), aff'd sub nom. Hobby v. U.S. Dept. of Labor, No. 01-10916
(11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances where
front pay may be available in lieu of reinstatement but ordering
reinstatement); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049,
2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (same). Congress
intended that employees be preliminarily reinstated to their positions
if OSHA finds reasonable cause to believe that they were discharged in
violation of Sarbanes-Oxley. When a violation is found, the norm is for
OSHA to order immediate preliminary reinstatement. Neither an employer
nor an employee has a statutory right to choose economic reinstatement.
Rather, economic reinstatement is designed to accommodate situations in
which evidence establishes to OSHA's satisfaction that immediate
reinstatement is inadvisable for some reason, notwithstanding the
employer's retaliatory discharge of the employee. 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.
SCSGP and Marshall commented on the issue of economic
reinstatement. Marshall commented that the inclusion of the above
language in the preamble is of "crucial significance for
whistleblowers," but continued that OSHA's recognition that actual
reinstatement remains the presumptive remedy is "essential as well."
Marshall explained that "[a]ctual reinstatement protects interests
that economic reinstatement cannot. Nonetheless, economic reinstatement
must be available as a remedy for situations where a whistleblower
cannot return to the workplace."
SCSGP addressed the issue of allowing an employer to recover the
costs of economically reinstating an employee should the employer
ultimately prevail in the whistleblower adjudication. SCSGP believes
OSHA's interpretation, that there is no statutory basis for allowing
such reimbursement, "compromises an employer's due process rights"
and raises other concerns. SCSGP commented that conversely there is
"no statutory basis for allowing the employee to keep the value of
economic reinstatement where his or her claim is unfounded." SCSGP
noted that in situations where economic reinstatement is awarded, an
employer may have to pay both the labor cost of filling the position,
and the cost of the economic reinstatement awarded to the complainant.
Where the employer ultimately prevails, it would not recover
the duplicative cost, an outcome which SCSGP believes is grossly
unfair. SCSGP recommended that OSHA include an additional paragraph in
this section, allowing that economic reinstatement be available only
upon consent of all parties, or upon the condition that the complainant
will reimburse the employer in the event the employer ultimately
prevails.
OSHA disagrees that economic reinstatement without a mechanism for
reimbursement violates the employer's rights under the Due Process
clause. The Supreme Court has addressed the issue of what is required
to afford an employer procedural due process prior to ordering
preliminary reinstatement in Brock v. Roadway Express, Inc., 481 U.S.
252 (1987). In Roadway Express, the Court held that "minimum due
process for the employer in this context requires notice of the
employee's allegations, notice of the substance of the relevant
supporting evidence, an opportunity to submit a written response, and
an opportunity to meet with the investigator and present statements
from rebuttal witnesses." Id. at 264. The Court did not require any
mechanism for reimbursing the employer for wages paid during actual
preliminary reinstatement should the employer ultimately prevail in the
litigation. Because economic reinstatement is akin to actual
reinstatement, OSHA believes the same requirements apply when ordering
economic reinstatement.
Furthermore, OSHA disagrees that there is no statutory basis for
precluding reimbursement of economic reinstatement. As discussed above,
Congress intended that employees be preliminarily reinstated to their
positions if OSHA finds reasonable cause to believe that they were
discharged in violation of Sarbanes-Oxley. However, the statutory
procedural scheme does not allow for reimbursement to the employer if
actual preliminary reinstatement was ordered and yet the employer
ultimately prevailed. Thus, there is no statutory basis to reimburse an
employer in that instance. Because economic reinstatement is a
substitute for preliminary reinstatement, this same reasoning would
apply for not awarding an employer reimbursement for any front pay the
employee receives should the employer ultimately prevail. OSHA
therefore declines to allow for such reimbursement where Congress has
not so provided.
Subpart B--Litigation
Section 1980.106 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, within 30 days of
receipt of the findings. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The
filing of objections also is considered a request for a hearing before
an ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
Department of Labor's Associate Solicitor for Fair Labor Standards, the
failure to serve copies of the objections on the other parties of
record does not affect the ALJ's jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant,
Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).
Throughout this section, minor changes were made as needed to clarify
the provision without changing its meaning.
The IFR revised paragraph (b) to note that a respondent's motion to
stay the Assistant Secretary's preliminary order of reinstatement will
be granted only based on exceptional circumstances. This revision
clarified that a stay is only available in "exceptional
circumstances," because the Secretary believes that a stay of the
Assistant Secretary's preliminary order of reinstatement under
Sarbanes-Oxley 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 interest
favors a stay.
SCSGP, EEAC, and Marshall commented on this section. Marshall wrote
in support of this revision, noting that "[p]reliminary reinstatement
protects a number of important values; it should be ordered and
enforced unless the respondent is able to make a credible and
persuasive showing that these values are overwhelmed." SCSGP and EEAC
requested that OSHA provide additional guidance regarding when a stay
of an order for preliminary reinstatement would be appropriate. SCSGP
suggested that OSHA modify paragraph (b) to provide "meaningful
standards governing when an ALJ should stay a preliminary order of
reinstatement." SCSGP's comment included concerns that the current
standard, based on "exceptional circumstances," may unduly constrain
the ALJ's discretion and authority, as well as leave the ALJ without
guidance as to when a stay is appropriate. EEAC commented that in its
view, the term "`exceptional circumstances' implies a limitation far
narrower than OSHA says that it intends." EEAC recommended that the
language in the preamble referring to the requirements to obtain
equitable injunctive relief be added to the regulatory text. EEAC also
suggested this addition to Section 1980.110(b), which covers appeals to
the ARB.
It is well established that the standard for a stay of preliminary
reinstatement is the standard needed to obtain a preliminary
injunction. A party must prove: Likely irreparable injury; likelihood
of success on the merits; the balancing of hardships favors an
injunction; and the public interest favors an injunction. Johnson v.
U.S. Bancorp, ARB No. 13-014, 2013 WL 2902820, at *2 (ARB May 21,
2013); see also Evans v. T-Mobil USA, Inc., ALJ No. 2012-SOX-00036 (ALJ
May 21, 2013) (granting stay of reinstatement). This traditional four-
element test is applied in all federal courts. See Winter v. N.R.D.C.,
555 U.S. 7, 20 (2008). The Department's ALJs and ARB have also applied
this standard in a number of cases prior to the issuance of the IFR.
See, e.g., Welch v. Cardinal Bankshares Corp., No. 06-062, 2006 WL
3246902 (ARB Mar. 31, 2006); Bechtel and Jacques v. Competitive
Technologies, Inc., ALJ Nos. 2005-SOX-0033, 2005-SOX-0034, 2005 WL
4888999 (ALJ Mar. 29, 2005). The regulation and its preamble, existing
ALJ and ARB decisions, and other federal case law clearly delineate the
standard for a successful motion to stay a preliminary order of
reinstatement. OSHA thus declines to provide further guidance on this
issue.
EEAC also commented that there may be situations in which the
complainant does not desire reinstatement, preliminary or otherwise.
EEAC suggested the final rule contain language addressing this
situation, allowing for the parties to come to an agreement to not
order reinstatement. OSHA declines to include such language in this
rule. Under Sarbanes-Oxley, reinstatement of the complainant to his or
her former position is the presumptive remedy in merit cases and is a
critical component of making the complainant whole. As Marshall notes
in his comment, actual reinstatement
protects interests that economic reinstatement cannot so effectively
address. For example, reinstatement serves to reassure other employees
through the complainant's presence in the workplace that they too will
be protected from retaliation for reporting violations of the law. By
ordering preliminary reinstatement in cases involving discharge where
OSHA has reasonable cause to believe that a statutory violation has
occurred, OSHA properly places the burden upon the employer to make a
bona fide offer of reinstatement. In doing so, OSHA also ensures that
the employee is not forced to make a decision about whether he or she
wants to return to the workplace until the employer actually makes such
an offer.
Section 1980.107 Hearings
This section adopts the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
as set forth in 29 CFR part 18 subpart A. Hearings are to commence
expeditiously, except upon a showing of good cause or unless otherwise
agreed to by the parties. Hearings will be conducted de novo, on the
record. ALJs continue to have broad discretion to limit discovery where
necessary to expedite the hearing. Formal rules of evidence will not
apply, but rules or principles designed to assure production of the
most probative evidence will be applied. The administrative law judge
may exclude evidence that is immaterial, irrelevant, or unduly
repetitious. Throughout this section, minor changes were made as needed
to clarify the provision without changing its meaning.
NWC commented in part on this section, requesting language be added
to further protect the confidentiality of complainants. The discussion
of the agency's consideration of this comment is included in the
discussion of Section 1980.104, above.
Section 1980.108 Role of Federal Agencies
The Assistant Secretary, at his or her discretion, may participate
as a party or amicus curiae at any time in the administrative
proceedings under Sarbanes-Oxley. 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 OSHA anticipates that ordinarily the Assistant Secretary will
not participate, the Assistant Secretary may choose to do so in
appropriate cases, such as cases involving important or novel legal
issues, multiple employees, alleged violations that appear egregious,
or where the interests of justice might require participation by the
Assistant Secretary. The Securities and Exchange Commission, if
interested in a proceeding, also may participate as amicus curiae at
any time in the proceedings.
No comments were received on this section. However, paragraph
(a)(2) has been revised to specify that parties must send copies of
documents to OSHA and to the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor, only upon request of OSHA,
or when OSHA is participating in the proceeding, or when service on
OSHA and the Associate Solicitor is otherwise required by these rules.
Other minor changes were made as needed to clarify the provision
without changing its meaning.
Section 1980.109 Decision and Orders of the Administrative Law Judge
This section sets forth the requirements for the content of the
decision and order of the ALJ, and includes the standard for finding a
violation under Sarbanes-Oxley. Specifically, the complainant must
demonstrate (i.e. prove by a preponderance of the evidence) that the
protected activity was a "contributing factor" in the adverse action.
See, e.g., Allen, 514 F.3d at 475 n.1 ("The term `demonstrates' means
to prove by a preponderance of the evidence."). If the employee
demonstrates that the alleged protected activity was a contributing
factor in the adverse action, the employer, to escape liability, must
demonstrate by "clear and convincing evidence" that it would have
taken the same action in the absence of the protected activity. See id.
Paragraph (c) provides that OSHA's determination to dismiss the
complaint without an investigation or without a complete investigation
pursuant to Section 1980.104 is not subject to review. Thus, Section
1980.109(c) clarifies that OSHA's determinations on whether to proceed
with an investigation under Sarbanes-Oxley and whether to make
particular investigative findings are discretionary decisions not
subject to review by the ALJ. The ALJ hears cases de novo and,
therefore, as a general matter, may not remand cases to OSHA to conduct
an investigation or make further factual findings. Paragraph (c) also
clarifies that the ALJ can dispose of a matter without a hearing if the
facts and circumstances warrant. In its comments, EEAC expressed
support for this clarification.
Paragraph (d) notes the remedies that the ALJ may order under the
Act and provides that interest on back pay will be calculated using the
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621
and will be compounded daily. Paragraph (d) has been revised to note
that when back pay is ordered, the order will also require the
respondent to submit appropriate documentation to the Social Security
Administration allocating any back pay award to the appropriate
calendar quarters. Paragraph (e) requires that the ALJ's decision be
served on all parties to the proceeding, the Assistant Secretary, and
the U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards. Paragraph (e) also provides that any ALJ decision requiring
reinstatement or lifting an order of reinstatement by the Assistant
Secretary will be effective immediately upon receipt of the decision by
the respondent. All other portions of the ALJ's order will be effective
14 days after the date of the decision unless a timely petition for
review has been filed with the ARB.
No comments were received on this section. However, the statement
that the decision of the ALJ will become the final order of the
Secretary unless a petition for review is timely filed with the ARB and
the ARB accepts the petition for review was deleted from Section
1980.110(a) and moved to paragraph (e) of this section. Additionally,
OSHA has revised the period for filing a timely petition for review
with the ARB to 14 days rather than 10 business days. With this change,
the final rule expresses the time for a petition for review in a way
that is consistent with the other deadlines for filings before the ALJs
and the ARB in the rule, which are also expressed in days rather than
business days. This change also makes the final rule congruent with the
2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure
and Rule 26(a) of the Federal Rules of Appellate Procedure, which
govern computation of time before the federal courts and express filing
deadlines as days rather than business days. Accordingly, the ALJ's
order will become the final order of the Secretary 14 days after the
date of the decision, rather than after 10 business days, unless a
timely petition for review is filed. As a practical matter, this
revision does not substantively alter the window
of time for filing a petition for review before the ALJ's order becomes
final.
Other minor changes were made as needed to clarify the provision
without changing its meaning.
Section 1980.110 Decision and Orders of the Administrative Review Board
Upon the issuance of the ALJ's decision, the parties have 14 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
electronic communication transmittal is considered the date of filing
of the petition; if the petition is filed in person, by hand delivery
or other means, the petition is considered filed upon receipt.
The appeal provisions in this part provide that an appeal to the
ARB is 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 may
be deemed waived. The ARB has 30 days to decide whether to grant the
petition for review. If the ARB does not grant the petition, the
decision of the ALJ becomes the final decision of the Secretary. If a
timely petition for review is filed with the ARB, any relief ordered by
the ALJ, except for that portion ordering reinstatement, is inoperative
while the matter is pending before the ARB. When the ARB accepts a
petition for review, the ALJ's factual determinations will be reviewed
under the substantial evidence standard.
This section also provides that, based on exceptional
circumstances, the ARB may grant a motion to stay an ALJ's preliminary
order of reinstatement under the Act, 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
Sarbanes-Oxley would be appropriate only where the respondent can
establish the necessary criteria for equitable injunctive relief, i.e.,
irreparable injury, likelihood of success on the merits, a balancing of
possible harms to the parties, and the public interest favors a stay.
The EEAC's comment regarding guidance on when a stay of preliminary
reinstatement is appropriate addressed this provision of the rule, as
well Section 1980.106(b). OSHA's response to this comment is explained
in detail above, in the discussion of Section 1980.106.
If the ARB concludes that the respondent has violated the law, it
will order the remedies listed in paragraph (d). Interest on back pay
will be calculated using the interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph
(d) has been revised to note that when back pay is ordered, the order
will also require the respondent to submit appropriate documentation to
the Social Security Administration allocating any back pay award to the
appropriate calendar quarters. If the ARB determines that the
respondent has not violated the law, an order will be issued denying
the complaint.
NWC requested that the agency make several revisions to this
section that would "further the goal of deciding cases on their
merits." The requested revisions included: (1) Change the time limit
for a petition for review from 10 days to 30 days; (2) require that a
petition for review set forth legal issues showing good cause to allow
full briefing; (3) change the provision that objections to legal
conclusions not raised in petitions for review "will ordinarily" be
deemed waived, to "may" be deemed waived; and (4) specify in the
regulation that the ARB may extend the time to submit petitions for
review upon good cause shown. NWC stated that these revisions would
"advance the remedial purposes of the Act by lowering the procedural
hurdles to a decision on the merits."
OSHA first notes that the IFR did use the phrase "may" be deemed
waived regarding objections not specifically raised in a petition for
review. This change was made as a result of comments submitted by NWC
on other whistleblower rules published by OSHA. See, e.g., Procedures
for the Handling of Retaliation Complaints Under Section 219 of the
Consumer Product Safety Improvement Act of 2008, 77 FR 40494, 40500-01
(July 10, 2012); Procedures for the Handling of Retaliation Complaints
Under the Employee Protection Provision of the Surface Transportation
Assistance Act of 1982 (STAA), as Amended, 77 FR 44121, 44131-32 (July
27, 2012).
However, OSHA declines to adopt NWC's additional suggestions
relating to this section. First, OSHA declines to extend the time limit
to petition for review because the shorter review period is consistent
with the practices and procedures followed in OSHA's other
whistleblower programs. Furthermore, parties may file a motion for
extension of time to appeal an ALJ's decision, and the ARB has
discretion to grant such extensions. However, as explained above, OSHA
has revised the period to petition for review of an ALJ decision to 14
days rather than 10 business days. As a practical matter, this revision
does not substantively alter the window of time for filing a petition
for review before the ALJ's order becomes final. In addition, Section
1980.110(c), which provides that the ARB will issue a final decision
within 120 days of the conclusion of the ALJ hearing, was similarly
revised to state that the conclusion of the ALJ hearing will be deemed
to be 14 days after the date of the decision of the ALJ, rather than
after 10 business days, unless a motion for reconsideration has been
filed with the ALJ in the interim. Like the revision to Section
1980.110(a), this revision does not substantively alter the length of
time before the ALJ hearing will be deemed to have been concluded.
Finally, OSHA believes that use of the word "may," as discussed
above, adequately addresses NWC's underlying concern that grounds not
raised in a petition for review may be barred from consideration before
the ARB.
Non-substantive changes were made to paragraph (c) of this section
to clarify when all hearings before an ALJ are considered concluded,
and thus when the time for the ARB to issue a final decision begins to
run.
Subpart C--Miscellaneous Provisions
Section 1980.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides 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. No comments were
received on this section. Minor changes were made as needed to this
section and section title to clarify the provision without changing its
meaning.
Section 1980.112 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, that the ARB or the ALJ submit the record of
proceedings to the appropriate court pursuant to the rules of such
court.
Mr. Levi commented on this section, stating that paragraph (b)
created a new rule. Paragraph (b) provided, "A final order of the ARB
is not subject to judicial review in any criminal or other
civil proceeding." As explained in the IFR, no new rules were added to
this section; rather, the section was simply reorganized and
renumbered. The 2004 version of the rule concluded paragraph (a) with
the sentence, "A final order of the Board is not subject to judicial
review in any criminal or other civil proceeding." This sentence
implemented the statutory provision found at 49 U.S.C. 42121(b)(4)(B),
"Limitation on Collateral Attack," adopted by the Act, which
provides, "[a]n order of the Secretary of Labor with respect to which
review could have been obtained under subparagraph (A) shall not be
subject to judicial review in any criminal or other civil proceeding."
This sentence was moved to be a stand-alone provision in paragraph (b)
of the IFR. The word "Board" was changed to "ARB;" however, both
designations refer to the same body (Administrative Review Board). The
old paragraph (b) was then renumbered to paragraph (c) in the IFR. The
text of this paragraph was also slightly revised, as discussed in the
preamble to the IFR, to clarify that "rules of the court" refers to
the Federal Rules of Appellate Procedure and local rules of the
relevant federal court of appeals. Most of these non-substantive
revisions have been adopted in this final rule. Paragraph (c) of the
final rule has been revised to provide that "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 or the ALJ,
as the case may be, to the appropriate court pursuant to the Federal
Rules of Appellate Procedure and the local rules of such court." This
revision simply reflects that in some instances the ALJ, and not the
ARB, will have possession of the record to be reviewed in the U.S.
court of appeals.
However, upon further review of the statutory language, OSHA has
revised paragraph (b) in the final rule to more accurately reflect the
statutory provisions found in AIR21, adopted by Sarbanes-Oxley. The
rule as written previously and in the IFR referred only to limitation
on collateral attack of final orders of the ARB. AIR21's limitation on
collateral attacks applies to all final orders of the Secretary. 49
U.S.C. 42121(b)(4)(A)-(B). Thus, paragraph (b) has been revised
accordingly.
Section 1980.113 Judicial Enforcement
This section describes the Secretary's power under Sarbanes-Oxley
to obtain judicial enforcement of orders and the terms of a settlement
agreement. While some courts have declined to enforce preliminary
orders of reinstatement under Sarbanes-Oxley, the Secretary's
consistent position has been that such orders are enforceable in
federal district court. See Solis v. Tenn. Commerce Bancorp, Inc., No.
10-5602 (6th Cir. 2010) (order granting stay of preliminary
injunction); 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. 06-2295 (4th
Cir. Feb. 20, 2008)). See also Brief for the Intervenor/Plaintiff-
Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No.
10-5602 (6th Cir. 2010); Brief for the Intervenor/Plaintiff-Appellant
United States of America, Welch v. Cardinal Bankshares Corp., No. 06-
2295 (4th Cir. Feb. 20, 2008); Brief for the Intervenor/Plaintiff-
Appellee Secretary of Labor, Bechtel v. Competitive Technologies, Inc.,
448 F.3d 469 (2d Cir. 2006) (No. 05-2402).
In its comments, SCSGP asserted that "this position is directly at
odds with the express language of the statute and the federal court
decisions that have addressed this issue. . . ." In support of its
position, SCSGP cited the above decisions in Solis, Bechtel, and Welch.
However, as noted by Marshall in its comment, an inspection of these
cases shows that none of these decisions held by a majority that
federal courts lack jurisdiction to enforce preliminary orders of
reinstatement. In Bechtel, the Second Circuit vacated the preliminary
order of reinstatement but failed to agree on a basis for which to do
so. 448 F.3d at 476. In the three-judge panel, one judge found that the
court lacked jurisdiction to enforce the order, thus holding to vacate
the order. Id. at 470-76. A second judge found that the order could not
be enforced on separate, due process grounds, and concurred in the
result on this basis. Id. at 476-81. The third judge dissented from the
result and found that the court did have jurisdiction to enforce orders
of preliminary reinstatement. Id. at 483-90. Additionally, in Solis,
the Sixth Circuit applied traditional injunctive relief standards
("balancing of the harms") to grant a stay of a preliminary order of
reinstatement and thus did not reach the jurisdictional issue on the
merits. No. 10-5602, slip op. at 2 (6th Cir. May 25, 2010). Finally, in
Welch, the district court granted the defendant's motion to dismiss the
complainant's enforcement proceeding because the ALJ's opinion did not
make clear whether he was ordering preliminary reinstatement, as
opposed to simply recommending reinstatement. 407 F. Supp. 2d at 776-
77. The court in Welch specifically noted that it was "unnecessary to
consider whether it would have had the authority to enforce the
preliminary order of reinstatement had such an order been properly
entered." Id. at 777 n.2. Therefore, the Secretary's position is not
at odds with the federal courts that have addressed this issue, as none
has reached the issue on the merits with a majority of the court.
Additionally, the Secretary's position is consistent with the plain
language of the statute. By incorporating the procedures of AIR21,
Sarbanes-Oxley authorizes district courts to enforce orders, including
preliminary orders of reinstatement, issued by the Secretary under the
Act. See 18 U.S.C. 1514A(b)(2)(A) (adopting the rules and procedures
set forth in AIR21, 49 U.S.C. 42121(b)). Under 49 U.S.C. 42121(b),
which provides the procedures applicable to investigations of
whistleblower complaints under Sarbanes-Oxley, the Secretary must
investigate complaints under the Act and determine whether there is
reasonable cause to believe that a violation has occurred. "[I]f the
Secretary of Labor concludes that there is a reasonable cause to
believe that a violation . . . has occurred, the Secretary shall
accompany the Secretary's findings with a preliminary order providing
the relief prescribed by paragraph (3)(B)," which includes
reinstatement of the complainant to his or her former position. 49
U.S.C. 42121(b)(2)(A) and (b)(3)(B)(ii). The respondent may file
objections to the Secretary's preliminary order and request a hearing.
However, the filing of such objections "shall not operate to stay any
reinstatement remedy contained in the preliminary order." 49 U.S.C.
42121(b)(2)(A).
Paragraph (5) of 49 U.S.C. 42121(b) provides for judicial
enforcement of the Secretary's orders, including preliminary orders of
reinstatement. That paragraph states "[w]henever any person has failed
to comply with an order issued under paragraph (3), the Secretary of
Labor may file a civil action in the United States district court for
the district in which the violation was found to occur to enforce such
order. In actions brought under this paragraph, the district courts
shall have jurisdiction to grant all appropriate relief including, but
not limited to, injunctive relief and compensatory damages." 49 U.S.C.
42121(b)(5). Preliminary orders that contain the relief of
reinstatement prescribed by paragraph (3)(B) are judicially enforceable
orders, issued under paragraph (3). Brief for the Intervenor/Plaintiff-
Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc.,
No. 10-5602, at 23-25 (6th Cir. 2010).
This analysis is not altered by the fact that paragraph (3) bears
the heading "Final Order." SCSGP asserted that this title and
paragraph (5)'s reference to only paragraph (3) provides clear and
unmistakable language that preliminary orders are not final orders
enforceable under paragraph (3). However, sections of a statute should
not be read in isolation, but rather in conjunction with the provisions
of the entire Act, considering both the object and policy of the Act.
See, e.g., Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 162
(4th Cir. 1998), aff'd, 529 U.S. 120 (2000). See also United States v.
Buculei, 262 F.3d 322, 331 (4th Cir. 2001) (a statute's title cannot
limit the plain meaning of its text), cert. denied, 535 U.S. 962
(2002). Focusing on the title to subsection (b)(3) instead of reading
section 42121(b) as a coherent whole negates the congressional
directives that preliminary reinstatement must be ordered upon a
finding of reasonable cause and that such orders not be stayed pending
appeal. 49 U.S.C. 42121(b)(2)(A)'s clear statement that objections
shall not stay any preliminary order of reinstatement demonstrates
Congress's intent that the Secretary's preliminary orders of
reinstatement be immediately effective. Reading 49 U.S.C. 42121(b)(5)
to allow enforcement of such orders is the only way to effectuate this
intent.
Furthermore, the Secretary's interpretation is buttressed by the
legislative history of Sarbanes-Oxley and AIR21. Before Congress
enacted Sarbanes-Oxley, the Department of Labor had interpreted this
AIR21 provision to permit judicial enforcement of preliminary
reinstatement orders. Accordingly, Congress is presumed to have been
aware of the Department's interpretation of 49 U.S.C. 42121(b)(5) and
to have adopted that interpretation when it incorporated that provision
by reference. See Lorillard v. Pons, 434 U.S. 575, 580-81 (1978)
("[W]here . . . Congress adopts a new law incorporating sections of a
prior law, Congress normally can be presumed to have had knowledge of
the interpretation given to the incorporated law, at least insofar as
it affects the new statute."). The Secretary's interpretation is
further supported by the legislative history of AIR21, which makes
clear that Congress regarded preliminary reinstatement as crucial to
the protections provided in the statute. Brief for the Intervenor/
Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp,
Inc., No. 10-5602, at 41-44 (6th Cir. 2010) (reviewing legislative
history of AIR21). Interpreting 49 U.S.C. 42121(b)(5) to permit
judicial enforcement of the Secretary's preliminary orders of
reinstatement is necessary to carry out Congress' clearly expressed
intent that whistleblowers be immediately reinstated upon the
Secretary's finding of reasonable cause to believe that retaliation has
occurred. Sarbanes-Oxley also permits the person on whose behalf the
order was issued under Sarbanes-Oxley to obtain judicial enforcement of
orders and the terms of a settlement agreement. 18 U.S.C.
1514A(b)(2)(A) incorporating 49 U.S.C. 42121(b)(6). Accordingly, OSHA
declines to make the changes to this section suggested by SCSGP.
OSHA has made two changes that are not intended to have substantive
effects. First, OSHA has revised this section slightly to more closely
parallel the provisions of the statute regarding the proper venue for
an enforcement action. Second, the list of remedies that formerly
appeared in this section has been moved to Section 1980.114. This
revision does not reflect a change in the Secretary's views regarding
the remedies that are available under Sarbanes-Oxley in an action to
enforce an order of the Secretary. The revision has been made to better
parallel the statutory structure of Sarbanes-Oxley and AIR21, which
contemplate enforcement of a Secretary's order and specify the remedies
that are available in an action for de novo review of a retaliation
complaint in district court. Compare 49 U.S.C. 42121(b)(5) and (6) to
18 U.S.C. 1514A(c).
Section 1980.114 District Court Jurisdiction Over Retaliation
Complaints
This section sets forth Sarbanes-Oxley's provisions allowing a
complainant to bring an original de novo action in district court,
alleging the same allegations contained in the complaint filed with
OSHA, if there has been no final decision of the Secretary within 180
days of the filing of the complaint. 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 180 days after the filing of the complaint. The
purpose of the "kick-out" provision is to aid the complainant in
receiving a prompt decision. That goal is not implicated in a situation
where the complainant already has received a final decision from the
Secretary. In addition, permitting the complainant to file a new case
in district court in such circumstances could conflict with the
parties' rights to seek judicial review of the Secretary's final
decision in the court of appeals.
OSHA received two comments on the inclusion of this statement of
the Secretary's position in the preamble to the IFR. Mr. Levi wrote in
opposition to this language, while the EEAC wrote in support of this
language, and requested that it be inserted into the regulatory text.
Mr. Levi noted his belief that this position is in conflict with the
rule itself, which allows complainants to "kick-out" under the
specified circumstances. To support his position, Mr. Levi quoted from
the preamble to the 2004 version of the rules. In that preamble, the
agency stated, and Mr. Levi quoted, "The Act might even be interpreted
to allow a complainant to bring an action in Federal court after
receiving a final decision from the Board, if that decision was issued
more than 180 days after the filing of the complaint." 69 FR
52111(Aug. 24, 2004). The 2004 preamble used the words "might even"
to denote that this is a possible interpretation of the language.
However, in that preamble, the agency went on to state, "The Secretary
believes that it would be a waste of the resources of the parties, the
Department, and the courts for complainants to pursue duplicative
litigation." Id. The language in the preamble to the 2011 IFR,
continued and retained above, simply asserts the Secretary's
longstanding position, which is consistent with the statute, the 2004
rule, the 2004 preamble language, and the 2011 rule, that once a
complainant has received a final decision from the Secretary, the goal
of the "kick-out" provision is no longer implicated.
Mr. Levi also commented that this position creates an impediment to
a complainant's right to access the federal district courts, and forces
the complainant to give up one right or another: Access to the ARB or
access to the district courts. However, as discussed above, the
Secretary believes that access to district courts under this provision
is intended to provide the complainant with a speedy adjudication of
his complaint; it is not intended to create two simultaneous
proceedings or a de novo review of an unfavorable determination by the
Secretary. Congress provided a clear avenue for review in federal
courts of a final order. As provided in Section 1980.112, either party
aggrieved by a final order of the ALJ or ARB may still appeal to the
federal courts of appeals. The Secretary's position does not adversely
affect this right, but rather is intended
to prevent interference with this right. Therefore, after considering
Mr. Levi and EEAC's comments, the agency has decided to retain the
language in the preamble to the rule, but refrain from adding it to the
regulatory text.
The IFR amended paragraph (b) of this section to require
complainants to provide file-stamped copies of their complaint within
seven days after filing a complaint in district court to the Assistant
Secretary, the ALJ, or the ARB, depending on where the proceeding is
pending, rather than requiring such notice fifteen days in advance of
such filing. The IFR noted a copy of the complaint also must be
provided to the Regional Administrator, the Assistant Secretary, and
the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor. This provision is necessary to notify the agency
that the complainant has opted to file a complaint in district court.
This provision is not a substitute for the complainant's compliance
with the requirements for service of process of the district court
complaint contained in the Federal Rules of Civil Procedure and the
local rules of the district court where the complaint is filed. These
revisions are continued in this final rule. However, OSHA has replaced
the requirement of providing a copy of the complaint to the Regional
Administrator with a requirement that a copy be provided to the "OSHA
official who issued the findings and/or preliminary order." This non-
substantive change is intended to reflect that an official other than
the Regional Administrator may be the official who issued the findings
and/or preliminary order.
The NWC noted its appreciation for this revision to the rule, and
suggested that "[t]he Department's wise policy on notice . . . should
now be replicated in the Department's regulations under other
whistleblower protection laws." OSHA is conducting several rulemakings
for whistleblower proceedings at this time and intends to include this
revised notice provision where applicable.
In addition to the changes noted above, OSHA has revised this
section to clarify the provision and more closely mirror the language
used in the statute. For example, paragraph (b) now incorporates the
provisions of the statute specifying the remedies and burdens of proof
in a district court action.
Section 1980.115 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 Sarbanes-Oxley requires. No comments were received on
this section.
IV. Paperwork Reduction Act.
This rule contains a reporting provision (filing a retaliation
complaint, Section 1980.103) which was previously reviewed and approved
for use by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The
assigned OMB control number is 1218-0236.
V. Administrative Procedure Act.
The notice and comment rulemaking procedures of Section 553 of the
Administrative Procedure Act (APA) do not apply to "interpretive
rules, general statements of policy, or rules of agency organization,
procedure, or practice." 5 U.S.C. 553(b)(A). Part 1980 sets forth
interpretive rules and rules 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
was not required. Although Part 1980 was not subject to the notice and
comment procedures of the APA, the Assistant Secretary sought and
considered comments to enable the agency to improve the rules by taking
into account the concerns of interested persons.
Furthermore, because this rule is procedural and interpretive
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule not be effective until at least 30 days after publication in the
Federal Register is inapplicable. The Assistant Secretary also finds
good cause to provide an immediate effective date for this rule. It is
in the public interest that the rule be effective immediately so that
parties may know what procedures are applicable to pending cases. Most
of the provisions of this rule were in the IFR and have already been in
effect since November 3, 2011, so a delayed effective date is
unnecessary.
VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Department has concluded that this rule is not a "significant
regulatory action" within the meaning of Executive Order 12866,
reaffirmed by Executive Order 13563, because it is not likely to: (1)
Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866. Therefore, no economic impact analysis under Section 6(a)(3)(C)
of Executive Order 12866 has been prepared. For the same reason, and
because no notice of proposed rulemaking was published, no statement is
required under Section 202 of the Unfunded Mandates Reform Act of 1995,
2 U.S.C. 1532. In any event, this rulemaking is procedural and
interpretive in nature and is thus not expected to have a significant
economic impact. Finally, this rule does not have "federalism
implications." The rule does not have "substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government" and therefore is not subject to
Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking procedures of Section 553 of the
APA do not apply "to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice." 5
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment
requirements are also exempt from the Regulatory Flexibility Act (RFA).
See SBA Office of Advocacy, A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act 9 (May 2012); also found at:
http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf*. This is a
rule of agency procedure, practice, and interpretation within the
meaning of that section; and therefore the rule is exempt from both the
notice and comment rulemaking procedures of the APA and the
requirements under the RFA.
List of Subjects in 29 CFR Part 1980
Administrative practice and procedure, Corporate fraud, Employment,
Investigations, Reporting and recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under the direction and control of David
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC on February 25, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble, 29 CFR part
1980 is revised to read as follows:
PART 1980--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 806 OF THE SARBANES-OXLEY ACT OF 2002, AS AMENDED.
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec:
1980.100 Purpose and scope.
1980.101 Definitions.
1980.102 Obligations and prohibited acts.
1980.103 Filing of retaliation complaints.
1980.104 Investigation.
1980.105 Issuance of findings and preliminary orders.
Subpart B--Litigation.
1980.106 Objections to the findings and the preliminary order and
request for a hearing.
1980.107 Hearings.
1980.108 Role of Federal agencies.
1980.109 Decision and orders of the administrative law judge.
1980.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1980.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1980.112 Judicial review.
1980.113 Judicial enforcement.
1980.114 District court jurisdiction over retaliation complaints.
1980.115 Special circumstances; waiver of rules.
Authority: 18 U.S.C. 1514A, as amended by the Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203
(July 21, 2010); Secretary of Labor's Order No. 01-2012 (Jan. 18,
2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2-
2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).
Subpart A--Complaints, Investigations, Findings and Preliminary
Orders
Sec. 1980.100 Purpose and scope.
(a) This part implements procedures under section 806 of the
Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of
the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act), enacted into
law July 30, 2002, as amended by the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010, enacted into law July 21, 2010.
Sarbanes-Oxley provides for employee protection from retaliation by
companies, their subsidiaries and affiliates, officers, employees,
contractors, subcontractors, and agents because the employee has
engaged in protected activity pertaining to a violation or alleged
violation of 18 U.S.C. 1341, 1343, 1344, or 1348, or any rule or
regulation of the Securities and Exchange Commission, or any provision
of Federal law relating to fraud against shareholders. Sarbanes-Oxley
also provides for employee protection from retaliation by nationally
recognized statistical rating organizations, their officers, employees,
contractors, subcontractors or agents because the employee has engaged
in protected activity.
(b) This part establishes procedures pursuant to Sarbanes-Oxley for
the expeditious handling of retaliation complaints made by employees,
or by persons acting on their behalf and sets forth the Secretary's
interpretations of the Act on certain statutory issues. These rules,
together with those codified at 29 CFR part 18, set forth the
procedures for submission of complaints under Sarbanes-Oxley,
investigations, issuance of findings and preliminary orders, objections
to findings and orders, litigation before administrative law judges,
post-hearing administrative review, withdrawals, and settlements.
Sec. 1980.101 Definitions.
As used in this part:
(a) Act means section 806 of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of
2002, Pub. L. 107-204, July 30, 2002, codified at 18 U.S.C. 1514A, as
amended by the Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010, Pub. L. 111-203, July 21, 2010.
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
(c) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(d) Company means any company with a class of securities registered
under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l)
or any company required to file reports under section 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any
subsidiary or affiliate whose financial information is included in the
consolidated financial statements of such company.
(e) Complainant means the employee who filed a complaint under the
Act or on whose behalf a complaint was filed.
(f) Covered person means any company, including any subsidiary or
affiliate whose financial information is included in the consolidated
financial statements of such company, or any nationally recognized
statistical rating organization, or any officer, employee, contractor,
subcontractor, or agent of such company or nationally recognized
statistical rating organization.
(g) Employee means an individual presently or formerly working for
a covered person, an individual applying to work for a covered person,
or an individual whose employment could be affected by a covered
person.
(h) Nationally recognized statistical rating organization means a
credit rating agency under 15 U.S.C. 78c(61) that:
(1) Issues credit ratings certified by qualified institutional
buyers, in accordance with 15 U.S.C. 78o-7(a)(1)(B)(ix), with respect
to:
(i) Financial institutions, brokers, or dealers;
(ii) Insurance companies;
(iii) Corporate issuers;
(iv) Issuers of asset-backed securities (as that term is defined in
section 1101(c) of part 229 of title 17, Code of Federal Regulations,
as in effect on September 29, 2006);
(v) Issuers of government securities, municipal securities, or
securities issued by a foreign government; or
(vi) A combination of one or more categories of obligors described
in any of paragraphs (h)(1)(i) through (v) of this section; and
(2) Is registered under 15 U.S.C. 78o-7.
(i) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(j) Person means one or more individuals, partnerships,
associations, companies, corporations, business trusts, legal
representatives or any group of persons.
(k) Respondent means the person named in the complaint who is
alleged to have violated the Act.
(l) Secretary means the Secretary of Labor or persons to whom
authority under the Act has been delegated.
(m) 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. 1980.102 Obligations and prohibited acts.
(a) No covered person may discharge, demote, suspend, threaten,
harass or in any other manner 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, or
any person acting pursuant to the employee's request, has engaged in
any of the activities specified in paragraphs (b)(1) and (2) of this
section.
(b) An employee is protected against retaliation (as described in
paragraph (a) of this section) by a covered person for any lawful act
done by the employee:
(1) To provide information, cause information to be provided, or
otherwise assist in an investigation regarding any conduct which the
employee reasonably believes constitutes a violation of 18 U.S.C. 1341,
1343, 1344, or 1348, any rule or regulation of the Securities and
Exchange Commission, or any provision of Federal law relating to fraud
against shareholders, when the information or assistance is provided to
or the investigation is conducted by--
(i) A Federal regulatory or law enforcement agency;
(ii) Any Member of Congress or any committee of Congress; or
(iii) A person with supervisory authority over the employee (or
such other person working for the employer who has the authority to
investigate, discover, or terminate misconduct); or
(2) To file, cause to be filed, testify, participate in, or
otherwise assist in a proceeding filed or about to be filed (with any
knowledge of the employer) relating to an alleged violation of 18
U.S.C. 1341, 1343, 1344, or 1348, any rule or regulation of the
Securities and Exchange Commission, or any provision of Federal law
relating to fraud against shareholders.
Sec. 1980.103 Filing of retaliation complaints.
(a) Who may file. An employee who believes that he or she has been
retaliated against by a covered person in violation of the Act may
file, or have filed 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
office 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
the Act occurs or after the date on which the employee became aware of
the alleged violation of the Act, any employee who believes that he or
she has been retaliated against in violation of the Act may file, or
have filed on the employee's behalf, a complaint alleging such
retaliation. The date of the postmark, facsimile transmittal,
electronic communication transmittal, telephone call, hand-delivery,
delivery to a third-party commercial carrier, or in-person filing at an
OSHA office will be considered the date of filing. The time for filing
a complaint may be tolled for reasons warranted by applicable case law.
For example, OSHA may consider the time for filing a complaint
equitably tolled if a complainant mistakenly files a complaint with the
another agency instead of OSHA within 180 days after becoming aware of
the alleged violation.
Sec. 1980.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA
will notify the respondent of the filing of the complaint, of the
allegations contained in the complaint, and of the substance of the
evidence supporting the complaint. Such materials will be redacted, if
necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a,
et seq., and other applicable confidentiality laws. OSHA will also
notify the respondent of its rights under paragraphs (b) and (f) of
this section and Sec. 1980.110(e). OSHA will provide an unredacted
copy of these same materials to the complainant (or complainant's legal
counsel, if complainant is represented by counsel) and to the
Securities and Exchange 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 OSHA a written statement and any affidavits or documents
substantiating its position. Within the same 20 days, the respondent
may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party
provide the other parties to the whistleblower complaint with a copy of
submissions to OSHA that are pertinent to the whistleblower complaint.
Alternatively, if a party does not provide its submissions to OSHA to
the other party, OSHA will provide them to the other party (or the
party's legal counsel if the party is represented by counsel) at a time
permitting the other party an opportunity to respond. Before providing
such materials to the other party, OSHA will redact them, if necessary,
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. OSHA will also provide each party with
an opportunity to respond to the other party's submissions.
(d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
(e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that a protected activity was a contributing
factor in the adverse action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity;
(ii) The respondent knew or suspected that the employee engaged in
the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the adverse action. The burden may be
satisfied, for example, if the complaint shows that the adverse
personnel action took place within a temporal proximity after the
protected activity, or at the first opportunity available to
respondent, 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, further investigation of
the complaint will not be conducted if the respondent demonstrates by
clear and convincing
evidence that it would have taken the same adverse action in the
absence of the complainant's protected activity.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, OSHA will proceed
with the investigation. The investigation will proceed whenever it is
necessary or appropriate to confirm or verify the information provided
by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1980.105, if OSHA has reasonable cause, on the
basis of information gathered under the procedures of this part, to
believe that the respondent has violated the Act and that preliminary
reinstatement is warranted, OSHA will contact the respondent (or the
respondent's legal counsel, if respondent is represented by counsel) to
give notice of the substance of the relevant evidence supporting the
complainant's allegations as developed during the course of the
investigation. This evidence includes any witness statements, which
will be redacted to protect the identity of confidential informants
where statements were given in confidence; if the statements cannot be
redacted without revealing the identity of confidential informants,
summaries of their contents will be provided. The complainant will also
receive a copy of the materials that must be provided to the respondent
under this paragraph. Before providing such materials to the
complainant, OSHA will redact them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable
confidentiality laws. The respondent will be given the opportunity to
submit a written response, to meet with the investigator, to present
statements from witnesses in support of its position, and to present
legal and factual arguments. The respondent will present this evidence
within 10 business days of OSHA's notification pursuant to this
paragraph, or as soon afterwards as OSHA and the respondent can agree,
if the interests of justice so require.
Sec. 1980.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary shall 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 the Act.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief
to the complainant. The preliminary order will include all relief
necessary to make the employee whole, including reinstatement with the
same seniority status that the complainant 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 fees. Interest on
back pay will be calculated using the interest rate applicable to
underpayment of taxes under 26 U.S.C. 6621 and will be compounded
daily. The preliminary order will also require the respondent to submit
appropriate documentation to the Social Security Administration
allocating any back pay award to the appropriate calendar quarters.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings, and where appropriate, the preliminary order will
be sent by certified mail, return receipt requested (or other means
that allow OSHA to confirm receipt), 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 to request an
award of attorney fees not exceeding $1,000 from the administrative law
judge (ALJ) regardless of whether the respondent has filed objections,
if the complaint was frivolous or brought in bad faith. The findings,
and where appropriate, the preliminary order, also will give the
address of the Chief Administrative Law Judge, U.S. Department of
Labor. At the same time, the Assistant Secretary will file with the
Chief Administrative Law Judge a copy of the original complaint and a
copy of the findings and/or order.
(c) The findings and any preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and/or a request for hearing has been timely filed as
provided at Sec. 1980.106. However, the portion of any preliminary
order requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.
Subpart B--Litigation
Sec. 1980.106 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 fees under the Act, 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. 1980.105(b). The objections
and/or request for a hearing must be in writing and state whether the
objections are to the findings and/or the preliminary order, and/or
whether there should be an award of attorney fees. The date of the
postmark, facsimile transmittal, or electronic communication
transmittal is considered the date of filing; if the objection is filed
in person, by hand-delivery or other means, the objection is filed upon
receipt. Objections must be filed with the Chief Administrative Law
Judge, U.S. Department of Labor, 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 Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement, which shall be granted only based on exceptional
circumstances. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or preliminary
order will become the final decision of the Secretary, not subject to
judicial review.
Sec. 1980.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure for
administrative
hearings before the Office of Administrative Law Judges, codified at
subpart A of part 18 of this title.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ who
will notify the parties, 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. ALJs have broad
discretion to limit discovery in order to expedite the hearing.
(c) If both the complainant and the respondent object to the
findings and/or order, the objections will be consolidated and a single
hearing will be conducted.
(d) Formal rules of evidence will not apply, but rules or
principles designed to assure production of the most probative evidence
will be applied. The ALJ may exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Sec. 1980.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding and must be served with copies of all documents in the case.
At the Assistant Secretary's discretion, the Assistant Secretary may
participate as a party or as amicus curiae at any time at any stage of
the proceeding. This right to participate includes, but is not limited
to, the right to petition for review of a decision of an ALJ, including
a decision approving or rejecting a settlement agreement between the
complainant and the respondent.
(2) Parties must send copies of documents to OSHA and to the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, only upon request of OSHA, or when OSHA is participating in
the proceeding, or when service on OSHA and the Associate Solicitor is
otherwise required by these rules.
(b) The Securities and Exchange Commission, if interested in a
proceeding, may participate as amicus curiae at any time in the
proceeding, at the Commission's discretion. At the request of the
Securities and Exchange Commission, copies of all documents in a case
must be sent to the Commission, whether or not the Commission is
participating in the proceeding.
Sec. 1980.109 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 activity.
(c) Neither OSHA's determination to dismiss a complaint without
completing an investigation pursuant to Sec. 1980.104(e) nor OSHA's
determination to proceed with an investigation is subject to review by
the ALJ, and a complaint may not be remanded for the completion of an
investigation or for additional findings on the basis that a
determination to dismiss was made in error. Rather, if there otherwise
is jurisdiction, the ALJ will hear the case on the merits or dispose of
the matter without a hearing if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the order will provide all relief necessary to make the employee
whole, including, reinstatement with the same seniority status that the
complainant would have had but for the retaliation; 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 fees. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily. The order will also
require the respondent to submit appropriate documentation to the
Social Security Administration allocating any back pay award to the
appropriate calendar quarters.
(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 reasonable attorney fees, not exceeding $1,000.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. 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
14 days after the date of the decision unless a timely petition for
review has been filed with the Administrative Review Board (ARB). The
decision of the ALJ will become the final order of the Secretary unless
a petition for review is timely filed with the ARB, and the ARB accepts
the petition for review.
Sec. 1980.110 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
fees, must file a written petition for review with the ARB, which has
been delegated the authority to act for the Secretary and issue final
decisions under this part. The parties should identify in their
petitions for review the legal conclusions or orders to which they
object, or the objections may be deemed waived. A petition must be
filed within 14 days of the date of the decision of the ALJ. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal will be considered to be the date of filing; if the
petition is filed in person, by hand-delivery or other means, the
petition is considered filed upon receipt. The petition must be served
on all parties and on the Chief Administrative Law Judge at the time it
is filed with the ARB. Copies of the petition for review 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 any order of reinstatement
will be effective while review is conducted by the ARB, unless the ARB
grants a motion by the respondent to stay the 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 shall be issued within 120 days
of the conclusion of the hearing, which will be deemed to be 14 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 such
case, the conclusion of the hearing is the date the motion for
reconsideration is ruled upon or 14 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 will
also be served on the Assistant Secretary and on the Associate
Solicitor, Division of Fair Labor Standards, even if the Assistant
Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing all relief necessary to make
the complainant whole, including reinstatement with the same seniority
status that the complainant 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 fees. Interest on back pay
will be calculated using the interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will be compounded daily. The order
will also require the respondent to submit appropriate documentation to
the Social Security Administration allocating any back pay award to the
appropriate calendar quarters.
(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 reasonable attorney fees, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1980.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
(a) At any time prior to the filing of objections to the Assistant
Secretary's findings and/or preliminary order, a complainant may
withdraw his or her complaint by notifying OSHA, orally or in writing,
of his or her withdrawal. OSHA then will confirm in writing the
complainant's desire to withdraw and determine whether to approve the
withdrawal. OSHA will notify the parties (and each party's legal
counsel if the party is represented by counsel) of the approval of any
withdrawal. If the complaint is withdrawn because of settlement, the
settlement must be submitted for approval in accordance with paragraph
(d) of this section. A complainant may not withdraw 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 the findings and/or
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1980.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
and/or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
order become final, a party may withdraw objections to the Assistant
Secretary's findings and/or order by filing a written withdrawal with
the ALJ. If the case is on review with the ARB, a party may withdraw a
petition for review of an ALJ's decision at any time before that
decision becomes final by filing a written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will determine whether to approve
the withdrawal of the objections or the petition for review. If the ALJ
approves a request to withdraw objections to the Assistant Secretary's
findings and/or order, and there are no other pending objections, the
Assistant Secretary's findings and/or order will become the final order
of the Secretary. If the ARB approves a request to withdraw a petition
for review of an ALJ decision, and there are no other pending petitions
for review of that decision, the ALJ's decision will become the final
order of the Secretary. If objections or a petition for review are
withdrawn because of settlement, the settlement must be submitted for
approval in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, 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
OSHA, the complainant and the respondent agree to a settlement. OSHA's
approval of a settlement reached by the respondent and the complainant
demonstrates OSHA's consent and achieves the consent of all three
parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the ALJ if the case is before the ALJ, or
by the ARB if the ARB has accepted the case for review. A copy of the
settlement will be filed with the ALJ or the ARB, as appropriate.
(e) Any settlement approved by OSHA, the ALJ, or the ARB, will
constitute the final order of the Secretary and may be enforced in
United States district court pursuant to Sec. 1980.113.
Sec. 1980.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1980.109 and 1980.110, 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 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 or the ALJ, as the case may be, to the appropriate court
pursuant to the Federal Rules of Appellate Procedure and the local
rules of such court.
Sec. 1980.113 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 the Act, the Secretary may file a
civil action seeking enforcement of the order in the United States
district court for the district in which the violation was found to
have occurred. Whenever any person has failed to comply with a
preliminary order of reinstatement, or a final order, including one
approving a settlement agreement, issued under the Act, a person on
whose behalf the order was issued may file a civil action seeking
enforcement of the order in the appropriate United States district
court.
Sec. 1980.114 District court jurisdiction over retaliation
complaints.
(a) If the Secretary has not issued a final decision within 180
days of the filing of the complaint, and there is no showing that there
has been delay due to the bad faith of the complainant, the complainant
may bring an action at law or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over such an action without regard
to the amount in controversy. A party to an action brought under this
paragraph shall be entitled to trial by jury.
(b) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec.
1980.109. An employee prevailing in any action under paragraph (a) of
this section shall be entitled to all relief necessary to make the
employee whole, 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;
(3) Compensation for any special damages sustained as a result of
the retaliation; and
(4) Litigation costs, expert witness fees, and reasonable attorney
fees.
(c) Within seven days after filing a complaint in federal court, a
complainant must file with OSHA, the ALJ, or the ARB, depending on
where the proceeding is pending, a copy of the file-stamped complaint.
A copy of the complaint also must be served on the OSHA official who
issued the findings and/or preliminary order, the Assistant Secretary,
and the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor.
Sec. 1980.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of this
part, 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 any orders that justice or the administration of the Act
requires.
[FR Doc. 2015-05001 Filed 3-4-15; 08:45 am]
BILLING CODE 4510-26-P
