[Federal Register Volume 80, Number 216 (Monday, November 9, 2015)][Rules and Regulations][Pages 69115-69138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28040]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1982
[Docket Number: OSHA-2008-0027]
RIN 1218-AC36
Procedures for the Handling of Retaliation Complaints Under the
National Transit Systems Security Act and the Federal Railroad Safety
Act
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: This document provides the final text of regulations governing
the employee protection provisions of the National Transit Systems
Security Act (NTSSA), enacted as Section 1413 of the Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission
Act), and the Federal Railroad Safety Act (FRSA), as amended by Section
1521 of the 9/11 Commission Act. The 9/11 Commission Act was enacted
into law on August 3, 2007. FRSA was amended further in 2008. An
interim final rule establishing procedures for these provisions and a
request for public comment was published in the Federal Register on
August 31, 2010. Ten comments were received. This rule responds to
those comments and establishes the final procedures and time frames for
the handling of retaliation complaints under NTSSA and FRSA, including
procedures and time frames for employee complaints to the Occupational
Safety and Health Administration (OSHA), investigations by OSHA,
appeals of OSHA determinations to an administrative law judge (ALJ) for
a hearing de novo, hearings by ALJs, review of ALJ decisions by the
Administrative Review Board (ARB) (acting on behalf of the Secretary of
Labor), and judicial review of the Secretary of Labor's final decision.
DATES: This final rule is effective on November 9, 2015.
FOR FURTHER INFORMATION CONTACT: Rob Swick, Directorate of
Whistleblower Protection Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-4618, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-2199 (this is not
a toll-free number); email OSHA.DWPP@dol.gov. This Federal Register
document 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
NTSSA, which was enacted by the 9/11 Commission Act, establishes
employee protection provisions for public transportation agency
employees who engage in whistleblowing activities pertaining to public
transportation safety or security (or, in circumstances covered by the
statute, employees perceived to have engaged or to be about to engage
in protected activity). See Public Law 110-53, Title XIV, Sec. 1413,
121 Stat. 414 (2007) (NTSSA, codified at 6 U.S.C. 1142).
FRSA, which was amended by the 9/11 Commission Act, establishes
employee protection provisions for railroad carrier employees who
engage in whistleblowing activities pertaining to railroad safety or
security (or, in circumstances covered by the statute, employees
perceived to have engaged or to be about to engage in protected
activity). Public Law 110-53, Title XV, Sec. 1521, 121 Stat. 444
(2007) (FRSA, codified at 49 U.S.C. 20109). FRSA, as further amended in
2008, establishes whistleblower provisions for railroad carrier
employees who are retaliated against for requesting medical or first
aid treatment, or for following orders or a treatment plan of a
treating physician. See Public Law 110-432, Div. A, Title IV, Sec.
419, 122 Stat. 4892 (Oct. 16, 2008) (FRSA, codified at 49 U.S.C.
20109(c)(2)). The 2008 FRSA amendments also prohibit railroad carriers
and other covered persons from denying, delaying, or interfering with
the medical or first aid treatment of an employee, and require that an
injured employee be promptly transported to the nearest hospital upon
request. 49 U.S.C. 20109(c)(1). These rules establish final procedures
for the handling of whistleblower complaints under NTSSA and FRSA.
II. Summary of Statutory Procedures
Prior to the 9/11 Commission Act amendment of FRSA, whistleblower
retaliation complaints by railroad carrier employees were subject to
mandatory dispute resolution pursuant to the Railway Labor Act (45
U.S.C. 151 et seq.), which included whistleblower proceedings before
the National Railroad Adjustment Board, as well as other dispute
resolution procedures. The amendment changed the procedures for
resolution of such complaints and transferred the authority to
implement the whistleblower provisions for railroad carrier employees
to the Secretary of Labor (Secretary).
The procedures for filing and adjudicating whistleblower complaints
under NTSSA and FRSA, as amended, are generally the same.\1\ FRSA
provides that the rules and procedures set forth in the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (AIR 21), 49
U.S.C. 42121(b), govern in FRSA actions, 49 U.S.C. 20109(d)(2). AIR
21's rules and procedures are very similar to the procedures provided
in NTSSA, 6 U.S.C. 1142(c). The NTSSA and FRSA whistleblower provisions
include procedures that allow a covered employee to file, within 180
days of the alleged retaliation, a complaint with the Secretary. Upon
receipt of the complaint, the Secretary must provide written notice to
the person or persons named in the complaint alleged to have violated
NTSSA or FRSA (respondent) of the filing of the complaint, the
allegations contained in the complaint, the substance of the evidence
supporting the complaint, and the rights afforded the respondent during
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.
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\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 NTSSA and FRSA. Responsibility for receiving
and investigating complaints under NTSSA and FRSA has been delegated
to the Assistant Secretary for Occupational Safety and Health.
Secretary's Order 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 ALJs are decided by the ARB. Secretary of Labor's
Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).
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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. Under OSHA's procedures, a complainant
may meet this burden through the complaint 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 the relief available under FRSA or
NTSSA as applicable, including: An order that the respondent abate the
violation; reinstatement with the same seniority status that the
employee would have had but for the retaliation; back pay with
interest; and compensatory damages, including compensation for any
special damages sustained as a result of the discrimination, including
litigation costs, expert witness fees, and reasonable attorney fees.
The preliminary order may also require payment of punitive damages up
to $250,000.
The complainant and the respondent then have 30 days after receipt
of the Secretary's notification in which to file objections to the
findings and/or preliminary order and request a hearing before an ALJ.
The filing of objections under NTSSA or FRSA will stay any remedy in
the preliminary order except for preliminary reinstatement. If a
hearing before an ALJ is not requested within 30 days, the preliminary
order becomes final and is not subject to judicial review.
If a hearing is held, NTSSA and FRSA require the hearing to be
conducted "expeditiously." The Secretary then has 120 days after the
conclusion of a hearing in which to issue a final order, which may
provide the relief authorized by the statute 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. Under NTSSA, the Secretary also may
award a prevailing employer reasonable attorney fees, not exceeding
$1,000, if the Secretary finds that the complaint is frivolous or has
been brought in bad faith.
Within 60 days of the issuance of the final order, any person
adversely affected or aggrieved by the Secretary's final order may file
an appeal with the United States Court of Appeals for the circuit in
which the violation occurred or the circuit where the complainant
resided on the date of the violation.
NTSSA and FRSA permit the employee to seek de novo review of the
complaint by a United States district court in the event that the
Secretary has not issued a final decision within 210 days after the
filing of the complaint, and there is no showing that the delay is due
to the bad faith of the complainant. The 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. The
whistleblower provisions of NTSSA and FRSA each provide that an
employee may not seek protection under those respective provisions and
another provision of law for the same allegedly unlawful act of the
public transportation agency (under NTSSA) or railroad carrier (under
FRSA). 6 U.S.C. 1142(e); 49 U.S.C. 20109(f). The whistleblower
provisions of NTSSA and FRSA also provide that nothing in their
respective provisions preempts or diminishes any other safeguards
against discrimination, demotion, discharge, suspension, threats,
harassment, reprimand, retaliation, or any other manner of
discrimination provided by Federal or State law. 6 U.S.C. 1142(f); 49
U.S.C. 20109(g). The whistleblower provisions of NTSSA and FRSA further
provide that nothing in their respective provisions shall be construed
to diminish the rights, privileges, or remedies of any employee under
any Federal or State law or under any collective bargaining agreement
and that the rights and remedies in the whistleblower provisions of
NTSSA or FRSA may not be waived by any agreement, policy, form, or
condition of employment. 6 U.S.C. 1142(g); 49 U.S.C. 20109(h).
III. Summary and Discussion of Rulemaking Proceedings and Regulatory
Provisions
On August 31, 2010, OSHA published in the Federal Register an
interim final rule, promulgating rules governing the employee
protection provisions of NTSSA and FRSA. 75 FR 53522. In addition to
promulgating the interim final rule, OSHA's notice included a request
for public comment on the interim rules by November 1, 2010.
In response, several organizations and individuals filed comments
with the agency within the public comment period. Comments were
received from the National Whistleblower Center (NWC); the Government
Accountability Project (GAP); nine railroad labor organizations
(collectively Rail Labor) that submitted one collective set of
comments; the AFL-CIO Transportation Trades Department, which
represents 32 unions; the Utah Transit Authority FrontRunner Commuter
Rail; the American Public Transportation Association; the American
Shortline and Regional Railroad Association (ASLRRA); the Association
of American Railroads (AAR); Charles Goetsch; and Todd Miller.
OSHA has reviewed and considered the comments and now adopts this
final rule, which has been revised in part in response to the comments.
The following discussion addresses the comments and OSHA's responses in
the order of the provisions of the rule.
General Comments
Comments Regarding the Treatment of Complaints Under Section
20109(c)(1)
In the preamble to the interim final rule, OSHA stated that the
procedural rules provided in this part would not apply to complaints
under paragraph 20109(c)(1) of FRSA. That paragraph provides:
A railroad carrier or person covered under this section may not
deny, delay, or interfere with the medical or first aid treatment of
an employee who is injured during the course of employment. If
transportation to a hospital is requested by an employee who is
injured during the course of employment, the railroad shall promptly
arrange to have the injured employee transported to the nearest
hospital where the employee can receive safe and appropriate medical
care.
OSHA stated that section 20109(c)(1) is not a whistleblower
provision because it appears to prohibit certain conduct by railroad
carriers irrespective of any protected activity by an employee. 75 FR
at 53522. Rail Labor, the AFL-CIO Transportation Trades Department, and
Charles Goetsch all disagreed and urged the Secretary to apply the
procedures in this part to complaints under section 20109(c)(1). These
commenters noted that section 20109(d) of FRSA gives the Secretary the
authority and duty to enforce the statute when an employee alleges
"discharge, discipline, or other discrimination in violation of
subsection (a), (b), or (c)[.]" 49 U.S.C. 20109(d). They noted that
the legislative history shows that the prompt medical attention provision
was originally drafted as a stand-alone provision, but was transferred
to section 20109, which is the only section in FRSA not assigned to the
Federal Railroad Administration (FRA). Therefore, they concluded, enforcement
of section 20109, including paragraph (c)(1), is assigned to the Secretary.
They further asserted that "other discrimination" in section 20109(d)(1)
encompasses the denial, delay, or interference with medical treatment
prohibited in paragraph (c)(1), and that "other discrimination" is
not limited to situations involving protected activity. Consequently,
according to these commenters, any denial or infringement of the right
under paragraph (c)(1) to prompt medical attention constitutes per se
discrimination. They also argued that it is wrong to assume that
paragraph (c)(1) involves no protected activity. The prohibited conduct
in paragraph (c)(1) (i.e., the denial, delay, or interference) only
occurs if an employee has requested medical treatment. In other words,
the commenters suggest that an employee has to have requested medical
treatment for that treatment to be denied, delayed, or interfered with.
Thus, they maintained, the protected activity under paragraph (c)(1) is
requesting medical treatment. Lastly, they argued that it would be
illogical to prohibit a railroad carrier from disciplining an employee
for requesting medical treatment as paragraph (c)(2) does, but not to
prohibit the railroad carrier from denying, delaying, or interfering
with that medical treatment. Treating paragraph (c)(1) as if it were
not a whistleblower provision would, they claimed, permit a railroad
carrier to use the denial, delay, or interference with an employee's
medical treatment as the means of retaliating against the employee
rather than having to discipline the employee, which would violate
paragraph (c)(2). They urged OSHA to reconsider its position and to
process paragraph (c)(1) complaints under the procedures applicable to
all other complaints arising under 49 U.S.C. 20109.
Apart from these comments on paragraph (c)(1), the ARB set out its
interpretation of paragraph (c)(1) in Santiago v. Metro-North Commuter
R.R. Co., Inc., ARB No. 10-147, 2012 WL 3164360 (ARB June 12, 2015),
pet. for review filed, Santiago v. U.S. Dep't of Labor, Case No. 15-
2551 (2d Cir. Aug. 13, 2015). The ARB treated a complaint under
paragraph (c)(1) as a whistleblower claim subject to the same
procedures and burdens of proof as a claim under paragraphs (a) or (b).
See id. at *5. The ARB reasoned that paragraph (c) implicitly
identifies protected activity as requesting or receiving medical
treatment or complying with treatment plans for work injuries, and
identifies the prohibited discrimination as delaying, denying, or
interfering, or imposing or threatening to impose discipline. See id.
The ARB further reasoned that AIR 21's procedural burdens of proof
govern claims under paragraph (c), but must be tailored to apply to the
processing of such claims. See id. at *6. The ARB also outlined how the
burdens of proof would apply to complaints under paragraph (c)(1). See
id. at *10-12. Because FRSA grants to the Secretary the authority to
enforce and adjudicate FRSA claims, 49 U.S.C. 20109(c), and because the
Secretary has delegated his adjudicative authority under FRSA to the
ARB, Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378
(Nov. 16, 2012), the ARB's decision in Santiago constitutes the
Secretary's interpretation of paragraph (c).
Based on the statutory text, the legislative history of paragraph
(c)(1), and the ARB's decision in Santiago outlined above, the
procedures provided in 49 U.S.C. 20109(d) apply to complaints alleging
violations of paragraph (c)(1). The language and structure of the
statute, together with the legislative history, show that FRSA provides
employees the ability to file complaints regarding violations of
paragraph (c)(1) with the Secretary and recover the remedies listed in
section 20109(e) in the event of a violation.
Paragraph (d)(1) states that "[a]n employee who alleges discharge,
discipline or other discrimination in violation of subsection (a), (b),
or (c) of this section, may seek relief in accordance with the
provisions of this section, with any petition or other request for
relief under this section to be initiated by filing a complaint with
the [Secretary]." 49 U.S.C. 20109(d)(1). The plain language of
paragraph (d)(1) does not distinguish between complaints alleging
violations of paragraph (c)(1) or (c)(2) in prescribing the treatment
of complaints, but rather broadly applies to "any petition or request
for relief under this section." (Emphasis added.) Further, no other
provision in 49 U.S.C. 20109 contains an alternative mechanism for
adjudication of complaints under paragraph (c)(1). Therefore, the
"other discrimination" for which an employee may seek relief under
paragraph (d)(1) necessarily includes a denial, delay, or interference
with medical or first aid treatment, or failing to promptly transport
an injured employee to the nearest hospital upon the employee's
request. See Delgado v. Union Pacific R.R. Co., 12 C 2596, 2012 WL
4854588, at *3 (N.D. Ill.) ("[T]he obstruction of an injured employee
seeking medical attention is itself discrimination against an employee
and therefore provides a basis for private enforcement under subsection
(d)(1).").
The legislative history also supports the conclusion that the
Secretary has the authority to enforce paragraph (c)(1) and that the
procedures outlined elsewhere in section 20109 also apply to complaints
alleging violations of paragraph (c)(1). As the commenters and the ARB
in Santiago noted, Congress originally proposed to prohibit the denial,
delay, or interference with medical or first aid treatment in a
freestanding section of FRSA, over which the Secretary of Labor would
not have enforcement authority, but made a conscious decision to move
that prohibition to paragraph (c)(1) of section 20109. See Federal
Railroad Safety Improvement Act of 2007, H.R. 2095, 110th Cong. Title
VI, Sec. 606 (2007) (proposed bill, which would have included the
provision at 49 U.S.C. 20162); Rail Safety Improvement Act of 2008,
H.R. Res. 1492 110th Cong. Sec. 419 (2008) (reconciling H.R. 2095 with
Senate amendments and moving the prohibition on the denial, delay, or
interference with medical or first aid treatment from section 20162 to
section 20109). Moving the provision to section 20109 indicates that
Congress intended employees to have the same right to file a complaint
with the Secretary of Labor seeking damages and other remedies
following an unlawful denial, delay or interference with medical or
first aid treatment that employees have for other violations of section
20109. Santiago, 2012 WL 3255136, at *9 (describing this history as "a
progressive expansion of anti-retaliation measures in an effort to
address continuing concerns about railroad safety and injury
reporting"). For all of these reasons, and in light of the ARB's
decision in Santiago, the procedures established in 29 CFR part 1982
apply to complaints alleging violations of 49 U.S.C. 20109(c)(1), and
OSHA has accordingly revised sections 1982.100 and 1982.102 to reflect
this protection.
Comments Regarding the Proper Interpretation of the Election of
Remedies, No Preemption, and Rights Retained by Employees Provisions
The whistleblower provisions of NTSSA and FRSA each provide that an
employee may not seek protection under those respective provisions and
another provision of law for the same allegedly unlawful act of the
public transportation agency (under NTSSA) or railroad carrier (under
FRSA). 6 U.S.C. 1142(e); 49 U.S.C. 20109(f). The whistleblower
provisions of NTSSA and FRSA also provide that nothing in those
respective provisions preempts or diminishes any other safeguards
against discrimination, demotion, discharge, suspension, threats,
harassment, reprimand, retaliation, or any other manner of
discrimination provided by Federal or State law. 6 U.S.C. 1142(f); 49
U.S.C. 20109(g). The whistleblower provisions of NTSSA and FRSA further
provide that nothing in those respective provisions shall be construed
to diminish the rights, privileges, or remedies of any employee under
any Federal or State law or under any collective bargaining agreement
and that the rights and remedies in the whistleblower provisions of
NTSSA or FRSA may not be waived by any agreement, policy, form, or
condition of employment. 6 U.S.C. 1142(g); 49 U.S.C. 20109(h).
Several commenters addressed the provisions in FRSA regarding
election of remedies, no preemption, and rights retained by employees,
49 U.S.C. 20109(f), (g), and (h). (NTSSA contains these same
provisions, 6 U.S.C. 1142(e), (f), and (g), but the comments
specifically referenced FRSA.) The AFL-CIO Transportation Trades
Department asserted that railroad employees have the right to seek
relief under both collective bargaining agreements and the
whistleblower provision in 49 U.S.C. 20109, and that a claim or
grievance filed by a railroad employee for an alleged violation of the
collective bargaining agreement should not bar the employee from
seeking remedies available under FRSA. This commenter stated that the
rights to organize, to bargain collectively, and to file grievances for
collective bargaining agreement violations provided for in the Railway
Labor Act (RLA), 45 U.S.C. 151 et seq., which governs labor-management
relations in the railroad industry, "are essential to maintaining
decent wages, and health and retirement benefits, as well as providing
a legal remedy for workers who have been wronged by their employers."
According to this commenter, it would make no sense for Congress to
have intended "to strip rail employees of contractual rights" when it
provided whistleblower railroad employees a statutory remedy against
retaliation. Rail Labor urged OSHA to interpret paragraph (f) of FRSA,
the election of remedies provision, as not barring claims made by an
employee under the Federal Employers' Liability Act (FELA), 45 U.S.C.
51 et seq., or a collective bargaining agreement, when a FRSA claim has
been filed, or vice versa. Rather, Rail Labor suggested, the election
of remedies provision could apply to state public policy doctrines or
state whistleblower statutes or regulations. Rail Labor urged OSHA to
interpret section 20109(g) of FRSA, the no-preemption provision, to
mean that FRSA has no bearing on FRA's jurisdiction under 49 CFR part
225 to investigate, make findings, and levy and enforce penalties
against railroad carriers for prohibited conduct. Also referencing the
FRA regulation at 49 CFR part 225, the Utah Transit Authority
FrontRunner Commuter Rail commented that all railroad carriers are
already governed by 49 CFR 225.33(a)(1) and (2), and suggested that
OSHA should cross-reference these regulations to avoid regulatory
duplication. Rail Labor also urged OSHA to interpret paragraph (h) of
FRSA, the rights retained by an employee provision, to mean that
section 20109 has no bearing on matters under the RLA or collective
bargaining agreements, and that the rights provided for in FRSA are not
a proper subject of collective bargaining and not subject to waiver.
Lastly, Rail Labor urged OSHA to state that the RLA and railroad
collective bargaining agreements do not provide whistleblower
protection, that a railroad carrier's pre-disciplinary investigations
and disciplinary decisions do not address an employee's whistleblower
claims, and that the National Railroad Adjustment Board has no
jurisdiction to adjudicate whistleblower claims under FRSA.
OSHA does not believe that the changes to the text of these
procedural rules suggested by these commenters are necessary. However,
OSHA notes that the specific issue of the applicability of FRSA's
election of remedies provision to an arbitration brought pursuant to
the employee's collective bargaining agreement under the RLA was
decided by the ARB in the consolidated cases of Koger v. Norfolk
Southern Railway Co. and Mercier v. Union Pacific Railroad, ARB Nos.
09-101 and 09-121, 2011 WL 4889278 (ARB Sept. 29, 2011). The ARB
concluded that FRSA's election of remedies provision permits a
whistleblower claim to proceed notwithstanding the employee's pursuit
of a grievance or arbitration under a collective bargaining agreement.
Id. at *8. The ARB's decision constitutes the Secretary's
interpretation of the election of remedies provision on this issue and
nothing in these final rules alters the ARB's conclusion. Three circuit
courts of appeals and numerous district courts have agreed with the
Secretary's conclusion. See Norfolk S. Ry. Co. v. Perez, 778 F.3d 507
(6th Cir. 2015); Grimes v. BNSF Ry. Co., 746 F.3d 184 (5th Cir. 2014);
Reed v. Norfolk S. Ry. Co., 740 F.3d 420 (7th Cir. 2014); Koger v.
Norfolk S. Ry. Co., No. 1:13-12030, 2014 WL 2778793 (S.D.W. Va. June
19, 2014); Pfeiffer v. Union Pacific R.R. Co., No. 12-cv-2485, 2014 WL
2573326 (D. Kan. June 9, 2014); Ray v. Union Pac. R.R., 971 F. Supp. 2d
869 (S.D. Iowa 2013); Ratledge v. Norfolk S. Ry. Co., No. 1:12-cv-402,
2013 WL 3872793 (E.D. Tenn. July 25, 2013); cf. Battenfield v. BNSF Ry.
Co., No. 12-cv-213, 2013 WL 1309439 (N.D. Okla. Mar. 26, 2013)
(examining section 20109(f) and permitting plaintiff to add FRSA
retaliation claim despite having challenged his termination under his
CBA); Norfolk S. Ry. Co. v. Solis, 915 F. Supp. 2d 32, 43-45 (D.D.C.
2013) (concluding that court did not have jurisdiction to review ARB's
Mercier decision because the ARB's statutory interpretation was, at a
minimum, a colorable interpretation of FRSA's election of remedies
provision).
Furthermore, FRSA's election of remedies provision generally does
not bar complainants from bringing both a FRSA retaliation claim and a
complaint for compensation for a workplace injury under FELA. A worker
who files a claim under FRSA and separately under FELA generally is not
seeking "protection under both [FRSA] and another provision of law for
the same allegedly unlawful act of the railroad carrier." Under FRSA,
a worker may seek reinstatement, back pay, and damages resulting from
an act of retaliation by the railroad because of the worker's protected
activity. Under FELA, a worker may seek damages for a workplace injury
that was due in whole or part to the railroad's negligence. The conduct
that gives rise to a retaliation claim under FRSA generally differs
from the conduct that causes a worker's injury, which is the subject of
a FELA claim. The latter involves a general standard of care that a
railroad owes a worker while the former is akin to an intentional tort.
OSHA notes that employees routinely pursue a FRSA claim and a FELA
claim concurrently in district court. See, e.g., Davis v. Union Pacific
R.R. Co., _ F. Supp. 2d _, 2014 WL 3499228 (W.D. La. Jul. 14, 2014);
Barati v. Metro-North R.R., 939 F. Supp. 2d 153 (D. Conn. 2013); Cook
v. Union Pacific R.R. Co., No. 10-6339-TC, 2011 WL 5842795
(D. Or. Nov. 18, 2011).
Additionally, in response to Rail Labor's and Utah Transit
Authority FrontRunner Commuter Rail's comments concerning FRA's
regulation at 49 CFR part 225, OSHA notes that an employee's ability to
pursue a retaliation claim under FRSA seeking reinstatement and a
monetary remedy is separate from and is not limited by FRA's authority
to investigate, make findings, levy and enforce penalties, or take
other enforcement action against railroads for conduct prohibited by 49
CFR part 225, including violations of 49 CFR 225.33. Likewise, an
employee's ability to pursue a retaliation claim under FRSA does not
limit FRA's authority to enforce 49 CFR part 225. As previously
explained, 49 CFR 225.33(a)(1) requires that each railroad carrier
adopt and comply with an internal control plan that includes a policy
statement declaring the railroad carrier's commitment to complete and
accurate reporting of all accidents, incidents, injuries, and
occupational illnesses arising from the operation of the railroad
carrier. The policy statement must also declare the railroad carrier's
commitment to prohibiting harassment or intimidation of any person that
is intended to discourage or prevent such person from receiving proper
medical treatment for or from reporting such accident, incident,
injury, and illness. In addition, 49 CFR 225.33(a)(2) requires that
each railroad carrier disseminate such policy statement to all
employees, have procedures to process complaints that the policy
statement has been violated, and impose discipline on the individual(s)
violating the policy statement. While an act of intimidation and
harassment, such as a threat of discipline, may run afoul of both 49
CFR 225.33 and 49 U.S.C. 20109, this overlap does not lead to
regulatory duplication. FRA's ability to utilize its enforcement tools
to cite a railroad for a violation of its policy statement against
harassment and intimidation calculated to prevent an employee from
reporting a casualty or accident or receiving proper medical treatment,
and FRA's ability to discipline an individual such as a manager for
violation of such policy, is not a remedy for the individual railroad
employee who may have suffered retaliation as result of reporting an
injury or requesting medical treatment. By contrast, FRSA gives
employees the right to obtain reinstatement, back pay and appropriate
damages resulting from a railroad's retaliation because the employee
reports an injury or requests medical treatment.
Comment Regarding the Secretary's Compliance With Statutory Timelines
Mr. Todd Miller commented generally that the regulations do not
provide a means for redress where OSHA does not meet the timelines
provided for in the statute. Courts and the ARB have long recognized
that failure to complete the investigation or issue a final decision
within the statutory time frame does not deprive the Secretary of
jurisdiction over a whistleblower complaint. See, e.g., Passaic Valley
Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 477 n.7 (3d Cir.
1993); Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir.
1991); Lewis v. Metro. Transp. Auth., ARB No. 11-070, 2011 WL 3882486,
at *2 (ARB Aug. 8, 2011); Welch v. Cardinal Bankshares, ARB No. 04-054,
2004 WL 5030301 (ARB May 13, 2004). The Secretary is cognizant of NTSSA
and FRSA's statutory directives regarding completion of the OSHA
investigation and administrative proceedings and the need to resolve
whistleblower complaints expeditiously. However, in those instances
where the agency cannot complete the administrative proceedings within
the statutory timeframes, NTSSA's and FRSA's "kick-out" provisions,
which allow a complainant to file a complaint for de novo review in
federal district court if the Secretary has not issued a final decision
within 210 days of the filing of the complaint, allow the complainant
an alternative avenue for resolution of the whistleblower complaint.
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Section 1982.100 Purpose and Scope
This section describes the purpose of the regulations implementing
NTSSA and FRSA and provides an overview of the procedures covered by
these regulations. No comments were received on this section. However,
OSHA has added a statement in subparagraph (a) noting that FRSA
protects employees against delay, denial or interference with first aid
or medical treatment for workplace injuries. OSHA has also added a
statement in subparagraph (b) noting that these rules set forth the
Secretary's interpretations of NTSSA and FRSA on certain statutory
issues.
Section 1982.101 Definitions
This section includes general definitions applicable to the
employee protection provisions of NTSSA and FRSA.
The definition section of NTSSA, 6 U.S.C. 1131(5), defines "public
transportation agency" as "a publicly owned operator of public
transportation eligible to receive federal assistance under chapter 53
of title 49." Chapter 53 of title 49, 49 U.S.C. 5302(14), defines
"public transportation" as "regular, continuing shared-ride surface
transportation services that are open to the general public or open to
a segment of the general public defined by age, disability, or low
income; and does not include: Intercity passenger rail transportation
provided by the entity described in chapter 243 (or a successor to such
entity); intercity bus service; charter bus service; school bus
service; sightseeing service; courtesy shuttle service for patrons of
one or more specific establishments; or intra-terminal or intra-
facility shuttle services." Chapter 243, 49 U.S.C. 24301 et seq.,
governs Amtrak. The definition of "public transportation" has been
updated as needed to be consistent with 2012 amendments to 49 U.S.C.
5302.
In the interim final rule, OSHA stated that the definition section
of FRSA, 49 U.S.C. 20102(2), defined "railroad carrier" as "a person
providing railroad transportation," and that section 20102(1) defined
"railroad" as "any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways, including commuter or other
short-haul railroad passenger service in a metropolitan or suburban
area and commuter railroad service that was operated by the
Consolidated Rail Corporation on January 1, 1979; and high speed ground
transportation systems that connect metropolitan areas, without regard
to whether those systems use new technologies not associated with
traditional railroads; but does not include rapid transit operations in
an urban area that are not connected to the general railroad system of
transportation." 75 FR at 53523-24. It has come to OSHA's attention
that these citations were incorrect. Section 20102 of FRSA was amended
such that the definition of "railroad carrier" is now in paragraph
(3), not (2), and that the definition of "railroad" is now in
paragraph (2), not (1). Public Law 110-432, 122 Stat. 4850, 4886 (Oct.
16, 2008). In addition, the definition of "railroad carrier" was
modified: It is defined as "a person providing railroad
transportation, except that, upon petition by a group of commonly
controlled railroad carriers that the Secretary [of Transportation]
determines is operating within the United States as a single,
integrated rail system, the Secretary [of Transportation] may by
order treat the group of railroad carriers as a single railroad
carrier for purposes of one or more provisions of part A, subtitle V
of [ ] title [49] and implementing regulations and order, subject to any
appropriate conditions that the Secretary [of Transportation] may impose."
49 U.S.C. 20102(3). The regulatory text in section 1982.101(k) is modified
accordingly in the final rule. The definition of "railroad" remains
the same as in the interim final rule.
The AFL-CIO Transportation Trades Department suggested that OSHA
define "public transportation agency" and "railroad carrier" to
include explicitly as covered employers owners, as well as contractors
and subcontractors acting as operators. Rail Labor suggested that OSHA
supplement these definitions by clarifying coverage over joint
employers because, according to Rail Labor, the current regulatory
definition does not address retaliation by railroad owners who are not
operators. Under NTSSA, a covered employer is a "public transportation
agency," which the statute defines in relevant part as "a publicly
owned operator of public transportation." Similarly, under FRSA, a
covered employer is a "railroad carrier," which the statute defines
in relevant part as "a person providing railroad transportation."
Thus, these statutes contain specific definitions of a covered
employer. The determination of whether an "operator" (in the case of
NTSSA) or "a person providing" (in the case of FRSA) includes owners
who are not operators may turn on the facts of a given case and is
better addressed through the adjudication of cases under NTSSA and FRSA
rather than in these procedural rules. OSHA notes that NTSSA prohibits
a contractor or subcontractor of a public transportation agency from
engaging in the retaliatory conduct prohibited under the statute. 6
U.S.C. 1142(a) and (b). Similarly, FRSA prohibits a contractor or
subcontractor of a railroad carrier from engaging in certain
retaliatory conduct prohibited under the statue. 49 U.S.C. 20109(a).
Therefore, OSHA declines to make the changes to this section suggested
by AFL-CIO Transportation Trades Department and Rail Labor.
Section 1982.102 Obligations and Prohibited Acts
This section describes the activities that are protected under
NTSSA and FRSA, and the conduct that is prohibited in response to any
protected activities. Minor corrections have been made throughout this
section to more closely parallel NTSSA and FRSA and OSHA's procedural
rules under other whistleblower statutes and the section has been
renumbered to better comply with the drafting requirements of the
Federal Register.
In light of OSHA's revised position regarding 49 U.S.C. 20109(c)(1)
discussed above, the regulatory text for this section of FRSA has been
modified to more closely mirror the statutory text of section 20109(c)
and to include the (c)(1) provision as 29 CFR 1982.102(b)(3)(i).
Rail Labor and the AFL-CIO Transportation Trades Department each
commented on the exception to FRSA's prompt medical attention provision
in 49 U.S.C. 20109(c)(2) permitting a railroad carrier to refuse to
allow an employee to return to work when that refusal is pursuant to
FRA's medical standards for fitness of duty, or, if no such standards
exist, then pursuant to the railroad carrier's own medical standards
for fitness of duty. They argued that this exception gives railroad
carriers the ability to use groundless medical refusals as a substitute
for retaliatory discipline or other forms of retaliation. Therefore,
they urged OSHA to include a statement in the regulation that a
railroad carrier's refusal must be done in good faith and with a
reasonable basis of medical fact, and that when the railroad carrier is
relying on its own standards, those standards must be established in
the carrier's official policies, be medically reasonable, and uniformly
applied. By contrast, the American Public Transportation Association
commented that the protection against discipline for requesting medical
treatment or following a treatment plan ignores management's right to
discipline employees whose injuries are directly caused by a violation
of work rules or procedures. This commenter suggested that this rule
should recognize management's right to discipline employees in such
situations, and that this right is independent of management's
obligation not to discipline an employee for requesting medical
treatment.
OSHA declines to change the text of these regulations in response
to these comments but notes that these commenters raise legitimate
concerns regarding the adjudication of cases under FRSA. For example,
the question of whether a railroad's discipline of an employee is in
retaliation for requesting medical treatment or results from the
legitimate application of a work rule or procedure is often the central
question in a FRSA complaint. In each complaint, that question should
be resolved based on the specific facts of the case and the applicable
case law.
Similarly, OSHA believes that the safe-harbor in 49 U.S.C.
20109(c)(2) requires that the railroad's refusal to allow an employee
to return to work be in good faith. A retaliatory refusal to permit an
employee to return to work cannot properly be regarded as made
"pursuant to" FRA's or the carrier's own medical standards for
fitness for duty under the statute. Any other interpretation of the
provision would permit a railroad carrier to refuse to allow an
employee to return to work in retaliation against the employee for
reporting the injury (which would violate 20109(a)(4)) or as a means
for extending retaliatory discipline prohibited by 20109(c)(2).
However, OSHA declines to incorporate the language proposed by the
commenters into the rule, which mirrors the statutory language.
Evidence that a railroad carrier's refusal to allow an employee to
return to work is not reasonable based on the employee's medical
condition may be important to show that the refusal is not in good
faith and constitutes retaliation. Evidence that a refusal is based on
carrier standards that are not recorded in the carrier's official
policies, not uniformly applied or not medically reasonable likewise
may help to demonstrate that the refusal is due not to a legitimate
safety concern of the railroad carrier but rather is motivated by
retaliatory intent. However, the question of whether a particular
refusal to permit an employee to return to work falls outside
20109(c)(2)'s safe harbor turns on the facts of the case and should be
adjudicated in accordance with the applicable case law.
Finally, in a change that is not intended to have substantive
effect, the terms "retaliate" and "retaliation" have been
substituted for the terms "discriminate" and "discrimination,"
which were used in the interim final rule. This change makes the
terminology used in this rule consistent with the terminology in OSHA's
more recently promulgated whistleblower rules. Subheadings have been
added to more clearly indicate which activities are protected under
NTSSA and which are protected under FRSA and the paragraphs have been
renumbered as needed to comply with Federal Register drafting
requirements and to reflect that the protections in 49 U.S.C.
20109(c)(1) have been added.
Section 1982.103 Filing of Retaliation Complaints
This section explains the requirements for filing a retaliation
complaint under NTSSA and FRSA. To be timely, a complaint must be filed
within 180 days of when the alleged violation occurs. Under Delaware
State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to
be when the retaliatory decision has been both made and communicated to
the complainant. In other words, the limitations period commences once
the employee is aware or reasonably should be aware of the employer's
decision to take an adverse action, not when the employee learns of the
retaliatory nature of the action. See Equal Emp't Opportunity Comm'n v.
United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001).
Complaints filed under NTSSA or FRSA need not be in any particular
form. They may be either oral or in writing. If the complainant is
unable to file the complaint in English, OSHA will accept the complaint
in any language. With the consent of the employee, complaints may be
filed by any person on the employee's behalf.
GAP expressed support for Sections 1982.103(b) (nature of filing)
and (d) (time for filing), which outline the form of filing and the
time for filing, respectively, and commented that they improved
protection for whistleblowers. GAP also asked that the text of section
1982.103(d) clarify that the 180-day statute of limitations for filing
a complaint under FRSA and NTSSA does not begin to run until an
employee becomes aware of an alleged retaliatory act. OSHA believes
that the rule as drafted properly states the statute of limitations but
has added a sentence to further explain that because OSHA may consider
the statute of limitations tolled for reasons warranted by applicable
case law. OSHA may, for example, consider the time for filing a
complaint equitably tolled if a complainant mistakenly files a
complaint with another agency instead of OSHA within 180 days after
becoming aware of the alleged violation.
AAR asserted that complaints should be accepted only in writing,
not orally as well. AAR argued that permitting oral complaints is not
consistent with the regulations in AIR 21, which section 20109(d)(2) of
FRSA requires the Secretary to follow in administering FRSA actions.
AAR further argues that FRSA's use of the word "filing" in section
20109(d)(1) contemplates a writing. According to AAR, requiring written
complaints is better from a policy perspective because written
complaints are clearer and less burdensome and inefficient for both
OSHA and employers. ASLRRA similarly urged OSHA to require that all
complaints must be in writing, for much the same reasons that AAR
expressed. In addition, ASLRRA suggested that written complaints must
include a statement of the acts and omissions, with pertinent dates,
that are believed to have created the statutory violation.
OSHA declines to adopt AAR's and ASLRRA's suggestion and will
permit complaints to be made orally or in writing. Submission of a
complaint in writing is not a statutory requirement of NTSSA, FRSA, or
AIR 21. Cf. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.
Ct. 1325, 2011 WL 977061, at *2 (2011) (the statutory term "filed any
complaint" in the Fair Labor Standards Act includes oral as well as
written complaints). OSHA is generally updating its whistleblower
procedures to allow oral complaints. Permitting oral complaints is
consistent with decisions of the ARB permitting oral complaints. See,
e.g., Roberts v. Rivas Env't 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 Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. 9610(b), and the
Department's accompanying regulations in 29 CFR part 24); Dartey v.
Zack Co. of Chicago, No. 82-ERA-2, 1983 WL 189787, at *3 n.1 (Office of
Admin. App. Apr. 25, 1983) (adopting ALJ'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 of 1974, as
amended, (ERA), 42 U.S.C. 5851, and the Department's accompanying
regulations in 29 CFR part 24). Moreover, this 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 the Surface Transportation
Assistance Act of 1982, 49 U.S.C. 31105.
OSHA notes that a complaint of retaliation filed with OSHA under
NTSSA and FRSA is not a formal document and need not conform to the
pleading standards for complaints filed in federal district court
articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l,
Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011)
(holding whistleblower complaints filed with OSHA under analogous
provisions in the Sarbanes-Oxley Act need not conform to federal court
pleading standards). Rather, the complaint filed with OSHA under this
section simply alerts the agency to the existence of the alleged
retaliation and the complainant's desire that the agency investigate
the complaint. Upon the filing of a complaint with OSHA, OSHA is to
determine whether "the complaint, supplemented as appropriate by
interviews of the complainant" alleges "the existence of facts and
evidence to make a prima facie showing," 29 CFR 1982.104(e). As
explained in section 1982.104(e), if the complaint, supplemented as
appropriate, contains a prima facie allegation, and the respondent does
not show clear and convincing evidence that it would have taken the
same action in the absence of the alleged protected activity, OSHA
conducts an investigation to determine whether there is reasonable
cause to believe that retaliation has occurred. See 6 U.S.C.
1142(c)(2)(B) (providing burdens of proof applicable to complaints
under NTSSA); 49 U.S.C. 42121(b)(2)(B) (providing the burdens of proof
applicable to complaints under FRSA).
In the final rule, OSHA has deleted the phrase "by an employer"
from paragraph (a) of this section in order to better reflect NTSSA's
and FRSA's statutory provisions prohibiting retaliation by officers and
employees as well as railroad carriers, public transportation agencies
and those entities' contractors and subcontractors, and has made other
minor changes as needed to clarify the provision without changing its
meaning.
Section 1982.104 Investigation
This section describes the procedures that apply to the
investigation of complaints under NTSSA and FRSA. Paragraph (a) of this
section outlines the procedures for notifying the parties and
appropriate federal agencies of the complaint and notifying the
respondent of its rights under these regulations. Paragraph (b)
describes the procedures for the respondent to submit its response to
the complaint. As explained below, paragraph (c) has been revised in
response to the comments to state that OSHA will request that the
parties provide each other with copies of their submissions to OSHA
during the investigation and that, if a party does not provide such
copies, OSHA will do so at a time permitting the other party an
opportunity to respond to those submissions. Before providing such
materials, OSHA will redact them in accordance with the Privacy Act of
1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws.
Paragraph (d) of this section discusses confidentiality of information
provided during investigations.
Paragraph (e) of this section sets forth NTSSA's and FRSA's
statutory burdens of proof. FRSA adopts the burdens of proof provided
under AIR 21, 49 U.S.C. 42121(b)(2), which are the same as those
provided under NTSSA. Therefore, this paragraph generally conforms to
the similar provision in the regulations implementing AIR 21.
The statutes require 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. The 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 Corrs., 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 required prima facie showing,
the investigation must be discontinued and the complaint dismissed. See
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the Energy Reorganization
Act of 1974 (ERA), which is the same as those under NTSSA and FRSA,
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. Thus, OSHA must dismiss a complaint under NTSSA or FRSA 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 alleged adverse action; or (2) the employer rebuts that
showing by clear and convincing evidence that it would have taken the
same adverse action absent the protected activity.
Assuming that an investigation proceeds beyond the gatekeeping
phase, the statute requires OSHA to determine whether there is
reasonable cause to believe that protected activity was a contributing
factor in the alleged adverse action. A contributing factor is "any
factor which, alone or in connection with other factors, tends to
affect in any way the outcome of the decision." Araujo v. New Jersey
Transit Rail Ops., Inc., 708 F.3d 152, 158 (3d Cir. 2013), quoting
Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993)
(internal quotation marks, emphasis and citation omitted) (discussing
the Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)). 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., ARB No. 04-149, 2006 WL
3246904, at *13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing
factor test under the Sarbanes-Oxley Act 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 6 U.S.C. 1142(c)(2)(B)(iv); 49
U.S.C. 42121(b)(2)(B)(iv). The "clear and convincing evidence"
standard is a higher burden of proof than a "preponderance of the
evidence" standard. Clear and convincing evidence is evidence
indicating that the thing to be proved is highly probable or reasonably
certain. Clarke v. Navajo Express, ARB No. 09-114, 2011 WL 2614326, at
*3 (ARB June 29, 2011); see also Araujo, 708 F.3d at 159.
Paragraph (f) describes the procedures OSHA will follow prior to
the issuance of findings and a preliminary order when OSHA has
reasonable cause to believe that a violation has occurred and that
preliminary reinstatement is warranted.
NWC, GAP, AAR, and ASLRRA commented on the provisions in section
1982.104. NWC suggested that the phrase "other applicable
confidentiality laws" in 1982.104(c) be replaced with more specific
language describing the confidentiality laws that might apply to a
respondent's answer. NWC also suggested that OSHA provide a copy of the
response to the complainant, and give the complainant an opportunity to
respond. NWC noted that to conduct a full and fair investigation, OSHA
needs to obtain the available, responsive information from both
parties. If one party does not have the information submitted by the
other, NWC explained, that party cannot help the investigation by
providing available information to shed light on the matter.
GAP commented that while it was pleased with the provisions in
section 1982.104 providing copies of respondent's submissions to
complainants and protecting witness confidentiality, it was concerned
that the procedures under section 1982.104(f) "disenfranchise[d] the
victim, giving only one side of the dispute the chance to participate
in the most significant step of the process" and that "[a]t a
minimum, this procedural favoritism means there will not be an even
playing field in the administrative hearing." GAP advocated removing
section 1982.104(f).
AAR commented that a complainant should not have access to a
railroad carrier's confidential and/or privileged information,
including internal business records, and investigative materials.
According to AAR, it would be unfair for OSHA to provide such
information to the complainant when a railroad carrier would be able to
protect itself from the disclosure of such information in the context
of litigation. AAR proposed that OSHA amend the language in 1982.104(c)
to state that OSHA will not provide the complainant with any
information the railroad carrier marks "confidential," and that if
OSHA disagrees with the railroad carrier's determination, OSHA will
afford the railroad carrier an opportunity to justify its position
before disclosure.
AAR also proposed that OSHA should allow railroad carriers access
to all of OSHA's interview notes, submissions, testimony, and other
evidence (redacted if necessary). It also suggested that OSHA broaden
the language in paragraph (f) to require OSHA to provide the employer
with the allegations and evidence relied upon by the complainant as OSHA
processes a complaint, and that the employer should receive this
information regardless of whether reinstatement is an issue. AAR argued
that, overall, section 1982.104 puts the railroad carrier and the
complainant on unequal footing, with the complainant having more timely
access to information than the railroad carrier. AAR further noted that
the comparable regulation under AIR 21, 29 CFR 1979.104(a), requires
OSHA to provide the respondent "the substance of the evidence
supporting the complaint" upon receipt of the complaint, rather than
waiting until the Secretary believes preliminary reinstatement is
warranted as in section 1982.104(f). According to AAR, providing the
respondent with the evidence supporting the complaint at that late
stage in the proceeding, as is contemplated by section 1982.104, is
inconsistent with the statutory directive that AIR 21 procedures apply.
AAR suggested that the respondent be provided with all of the evidence
at the outset of a case, as well as throughout the course of a case.
Lastly, ASLRRA expressed concern with the statement in section
1982.104(e)(3) that a complainant may satisfy his prima facie showing
requirement by showing that the adverse action took place shortly after
the protected activity. According to ASLRRA, timing alone is
insufficient to establish a prima face case of retaliation as timing is
only one of many factors to consider. Further, according to ASLRRA,
relying on timing is particularly problematic in a unionized workplace,
where employers are contractually obligated to follow certain
disciplinary procedures with short time limits.
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 and AAR's concern regarding
protection of information that would not otherwise be discoverable,
OSHA believes that the vast majority of respondent submissions will not
be subject to any confidentiality laws. However, OSHA recognizes that,
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.whistleblowers.gov/regulations_page.html. As the investigation
manual illustrates, OSHA is cognizant of the protections available to
employers and therefore believes there is no need to modify the
regulatory text to ensure that employers' confidential information is
protected.
With regard to NWC and GAP's comments seeking more opportunities
for the complainant to be involved in the investigation of the
complainant's whistleblower complaint, OSHA agrees with NWC and GAP
that the input of both parties in the investigation is important to
ensuring that OSHA reaches the proper outcome during its investigation
and has made two changes in response to these comments. Section
1982.104(c) of the IFR provided that, throughout the investigation, the
agency would provide the complainant (or the complainant's legal
counsel if the complainant is represented by counsel) a copy of all of
respondent's submissions to the agency that are responsive to the
complainant's whistleblower complaint, redacted of confidential
information as necessary. In response to the commenters, the final rule
has been revised to state that OSHA will request that the parties
provide each other with copies of their submissions to OSHA during the
investigation and that, if a party does not provide such copies, OSHA
will do so at a time permitting the other party an opportunity to
respond to those submissions. Also, section 1982.104(f) provides that
the complainant will receive a copy of the materials that must be
provided to the respondent under that paragraph.
With regard to GAP's comment that section 1982.104(f) should be
removed and AAR's comment that this provision should be expanded to all
cases regardless of whether reinstatement is at issue, OSHA notes that
the purpose of 1982.104(f) is to ensure compliance with the Supreme
Court's ruling in Brock v. Roadway Express, 481 U.S. 252, 264 (1987).
In that decision, the Court upheld the facial constitutionality of the
analogous provisions providing for preliminary reinstatement under
STAA, 49 U.S.C. 31105, and the procedures adopted by OSHA to protect
the respondent's rights under the Due Process Clause of the Fifth
Amendment, but ruled that the record failed to show that OSHA
investigators had informed the respondent of the substance of the
evidence to support reinstatement of the discharged employee. In so
finding, the Court noted that although a formal hearing was not
required before OSHA ordered preliminary reinstatement "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." Roadway Express, 481 U.S. at 264; see
Bechtel v. Competitive Techs., Inc., 448 F.3d 469, 480-81 (Leval, J.,
concurring) (finding OSHA's preliminary reinstatement order under
Sarbanes-Oxley unenforceable because the information provided to the
respondent did not meet the requirements of Roadway Express). Thus,
OSHA declines to remove the language providing the respondent notice
and opportunity to respond under section 1982.104(f). Also, because in
cases not involving preliminary reinstatement all of the remedies in
the Secretary's preliminary order are stayed if the respondent files
objections and requests a hearing, OSHA believes that the hearing
procedures provided by these rules adequately protect respondents' due
process rights in those cases. Expanding the application of section
1982.104(f) to cases not involving preliminary reinstatement would
significantly delay investigations of FRSA and NTSSA cases but would
not ensure any additional due process rights for respondents.
Also in response to AAR's comments regarding the information to be
provided to respondents during the investigation, OSHA agrees, in part,
with AAR's comments. NTSAA and FRSA, through its incorporation of AIR
21's rules and procedures, both indicate that the Secretary, upon
receipt of a complaint, shall notify the respondent not only of the
filing of the complaint, but also of the allegations contained in the
complaint and of the substance of the evidence supporting the
complaint. See 6 U.S.C. 1142(c)(1); 49 U.S.C. 20109(d)(2)(A); 49 U.S.C.
42121(b)(1). Accordingly, the Department has revised section
1982.104(a) to reflect this statutory language and to be consistent
with AIR 21's regulation at section 1979.104(a).
Lastly, OSHA rejects ASLRRA's comment that 1982.104(e) should be
revised to state that the timing of an adverse action alone is
insufficient to establish a causal connection between the complainant's
protected activity and the adverse action. At the gatekeeping phase,
where OSHA is simply determining whether to conduct an investigation,
the timing of the adverse action may be sufficient to give rise to an
inference that the protected activity was a contributing factor in the
adverse action so that the investigation may proceed.
See Taylor v. Wells Fargo Bank, ARB No. 05-062, 2007 WL 7143176, at
*3 n.12 (ARB June 28, 2007) (temporal proximity may establish the
causal connection component of the prima facie case under Sarbanes-Oxley);
see also Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320
(10th Cir. 1999) (the causal connection necessary to show a prima facie
case under Title VII or the ADEA may be inferred by protected conduct
closely followed by adverse action); Davis v. Union Pacific R.R. Co.,
Civ. A. No. 5:12-CV-2738, 2014 WL 3499228, at *9 (W.D. La. July 14, 2014)
(finding temporal proximity between protected injury report and adverse
action sufficient to create a genuine issue of material fact precluding
summary judgment for railroad). This approach is consistent with the
approach that OSHA has taken under other whistleblower statutes employing
the same burdens of proof as FRSA and NTSSA. See, e.g., 29 CFR 1979.104(e)
(AIR 21); 29 CFR 1980.104(e) (Sarbanes-Oxley); Procedures for the Handling of
Discrimination Complaints under Federal Employee Protection Statutes,
63 FR 6614-01, 6618 (Feb. 9, 1998) (explaining that under ERA temporal
proximity is normally sufficient to establish causation at the
gatekeeping phase). OSHA believes that it would be overly restrictive
to require a complainant to provide evidence of retaliation (as
distinguished from a showing) when the only purpose is to trigger an
investigation to determine whether there is reasonable cause to believe
that retaliation has occurred. Complainants in many cases do not have
the knowledge or the resources to submit "evidence" of retaliation
other than temporal proximity at the outset of OSHA's investigation.
In addition to the revisions noted above, minor changes were made
as needed in this section to clarify the provision without changing its
meaning.
Section 1982.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of a complaint, written findings regarding whether or not
there is reasonable cause to believe that the complaint has merit. If
the findings are that there is reasonable cause to believe that the
complaint has merit, the Assistant Secretary will order appropriate
relief, including preliminary reinstatement and back pay with interest
and compensatory damages. To reflect the statutory language of FRSA and
NTSSA and the agency's current practice, OSHA modified paragraph (a)(1)
in the final rule to mirror the remedies listed in the statutes,
including adding "interest" to the description of compensation that
can be included in the preliminary order.
In ordering interest on back pay under FRSA and NTSSA, the
Secretary has determined that interest due will be computed by
compounding daily the Internal Revenue Service (IRS) interest rate for
the underpayment of taxes which, under 26 U.S.C. 6621, is generally the
Federal short-term rate plus three percentage points.
In the Secretary's view, 26 U.S.C. 6621 provides the appropriate
rate of interest to ensure that victims of unlawful retaliation under
FRSA and NTSSA 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., ARB 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 No. 09-070, 2011 WL 1247212,
at * 2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073,
08-051, 2010 WL 1776974, at * 8 (ARB Apr. 10, 2010); Murray v. Air
Ride, Inc., ARB No. 00-045, slip op. at 9 (ARB Dec. 29, 2000). Section
6621 provides the appropriate measure of compensation under NTSSA, FRSA
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, 1987 WL 89652, at * 2 (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").
The Secretary also believes that daily compounding of interest
achieves the make-whole purpose of a back pay award. Daily compounding
of interest has become the norm in private lending and was found to be
the most appropriate method of calculating interest on back pay by the
National Labor Relations Board. See Jackson Hosp. Corp. v. United
Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv.
Workers Int'l Union, 356 N.L.R.B. No. 8, 2010 WL 4318371, at * 3-4
(Oct. 22, 2010). Additionally, interest on tax underpayments under the
Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to
26 U.S.C. 6622(a). Thus, paragraph (a)(1) of this section now states
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.
In ordering back pay, OSHA also will require the respondent to
submit the appropriate documentation to the Railroad Retirement Board
or the Social Security Administration, as appropriate, allocating the
back pay to the appropriate months (for employees who may be entitled
to benefits under the Railroad Retirement Act) or calendar quarters
(for employees who may be entitled to Social Security benefits).
Requiring the reporting of back pay allocation to the Railroad
Retirement Board or Social Security Administration serves the remedial
purposes of FRSA and NTSSA 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, 2014 WL 3897178, at * 4-5 (NLRB Aug. 8,
2014). As the NLRB has 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 * 4 ("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 NLRBvexplained, "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. Therefore, OSHA has revised section (a)(1) of this paragraph to
state that a preliminary order containing an award of back pay will
also require the respondent to submit documentation to the Railroad
Retirement Board or Social Security Administration to properly allocate
back pay to the appropriate months or calendar quarters.
The findings and, where appropriate, preliminary order, advise the
parties of their right to file objections to the findings of the
Assistant Secretary and to request a hearing. The findings and, where
appropriate, preliminary order, also advise the respondent of the right
under NTSSA to request an award of attorney fees not exceeding $1,000
from the ALJ, regardless of whether the respondent has filed
objections, if the respondent alleges that the complaint was frivolous
or brought in bad faith. If no objections are filed within 30 days of
receipt of the findings, the findings and any preliminary order of the
Assistant Secretary become the final findings and order of the
Secretary. If objections are timely filed, any order of preliminary
reinstatement will take effect, but the remaining provisions of the
order will not take effect until administrative proceedings are
completed.
In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he received prior to his termination, but not actually return to
work. Such "economic reinstatement" frequently is employed in cases
arising under Section 105(c) of the Federal Mine Safety and Health Act
of 1977, 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 (ALJ June 26, 2001).
AAR and ASLRRA commented on the language in the preamble regarding
economic reinstatement and urged OSHA to delete any reference to
economic reinstatement. ASLRRA argued that OSHA does not have the
authority under FRSA to require this remedy because it is not discussed
in the statute and reliance on the Federal Mine Safety and Health Act
is insufficient. AAR similarly argued that section 20109(d) of FRSA
specifies the exclusive remedies available, and economic reinstatement
is not listed as one of those remedies. In addition, both ASLRRA and
AAR maintained that it is unfair to order economic reinstatement given
the fact that it may take many months before the preliminary order
requiring economic reinstatement is fully adjudicated and reviewed and
that the employer cannot recover the costs of economic reinstatement if
the employer ultimately prevails. AAR asserted that the only instance
in which economic reinstatement is appropriate is when the railroad
carrier voluntarily agrees to such a remedy.
OSHA declines to revise the rule in response to these comments.
OSHA believes that it has the authority to order economic
reinstatement. Economic reinstatement is akin to an order of front pay.
Front pay has been recognized as a possible remedy under whistleblower
statutes in limited circumstances where actual reinstatement would not
be possible. See, e.g., Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-
039, 2003 WL 21499864, at * 10 (ARB June 30, 2003) (under environmental
whistleblower statutes, "front pay may be an appropriate substitute
when the parties prove the impossibility of a productive and amicable
working relationship, or the company no longer has a position for which
the complainant is qualified"); Hobby v. Georgia Power Co., ARB No.
98-166, 2001 WL 168898, at * 6-10 (ARB Feb. 9, 2001), aff'd sub nom.
Hobby v. U.S. Dep't 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); Michaud v. BSP
Transp., Inc., ARB Nos. 97-113, 1997 WL 626849, at * 4 (ARB Oct. 9,
1997) (under STAA, front pay appropriate where employee was unable to
work due to major depression resulting from the retaliation); Doyle v.
Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 1996 WL 518592,
at * 6 (ARB Sept. 6, 1996) (under ERA, front pay appropriate where
employer had eliminated the employee's position); Brown v. Lockheed
Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426, at * 55-56 (ALJ
Jan. 15, 2010) (noting that while reinstatement is the "presumptive
remedy" under Sarbanes-Oxley, front pay may be awarded as a substitute
when reinstatement is inappropriate).
However, 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 NTSSA or
FRSA. 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 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.
Two commenters addressed OSHA's authority to order reinstatement
under FRSA in situations in which the railroad carrier asserts that
such reinstatement will endanger the public, its property, and/or other
employees. ASLRRA suggested that OSHA include an exception to the
requirement that an employee be preliminarily reinstated immediately
when a party has filed objections to OSHA's findings and/or order for
situations in which the railroad carrier establishes that the employee
poses a direct threat to the health or safety of himself or others. As
support for this suggestion, ASLRRA pointed to a similar provision in
the regulations under AIR 21 in which a preliminary reinstatement order
is not appropriate when the employer establishes that the employee is a
security risk, 29 CFR 1979.105(a)(1). Rail Labor suggested that OSHA
respond to any arguments by railroad carriers that preliminary
reinstatement is inappropriate when such reinstatement will endanger
the public, the railroad carrier's property, or other employees by
supplementing the regulatory language to state that the Assistant
Secretary has sufficient discretion pursuant to section 1982.105 to
balance the competing interests of the public, all employees, and the
railroad carrier, and that the full range of remedies is available.
OSHA does not believe that it is necessary to include such an
exception in the regulation as ASLRRA suggested or to supplement the
language in the regulation as Rail Labor suggested because such cases
may be adequately determined based on applicable case law. Also, the
ALJ and the ARB each have sufficient discretion to stay a reinstatement
order for exceptional circumstances, which may include the types of
situations discussed by ASLRRA. See 1982.106(b); 1982.110(b).
AAR commented on the reference to "abatement" in section
1982.105(a)(1), and suggested that abatement under FRSA should be
limited to relief for the individual employee. AAR asserted that, while
section 20109 incorporates AIR 21's rules and procedures and AIR 21
provides for abatement as a remedy, 49 U.S.C. 42121(b)(3)(B)(i),
section 20109 of FRSA contains its own remedy provision, 49 U.S.C.
20109(e), and nothing in section 20109(e) provides for abatement orders
directed at an employer's practices and procedures. As an initial
matter, OSHA notes that this comment addresses FRSA only. NTSSA, like
AIR 21, explicitly permits the Secretary to order the respondent to
"take affirmative action to abate the violation." 6 U.S.C.
1142(c)(3)(B)(i).
As AAR notes, FRSA contains its own remedies provision, apart from
AIR 21's remedies provision. FRSA prescribes remedies to make the
employee whole, 49 U.S.C. 20109(e), notwithstanding FRSA's
incorporation of the "rules and procedures" of AIR 21, 49 U.S.C.
20109(d)(2)(A). OSHA believes that injunctive relief to abate a
violation of a specific employee's rights can be an important element
of making the employee whole. Such relief could include, for example,
an order requiring a railroad carrier to expunge certain records from
an employee's personnel file or an order requiring that a particular
company policy not be applied to an employee where application of the
policy would penalize the employee for having engaged in protected
activity. The posting of a notice to employees regarding the resolution
of a whistleblower complaint can be important to remedying the
reputational harm an employee has suffered as a result of retaliation.
In some instances, an order to provide training to managers or notice
to employees regarding the rights protected by the statute at issue can
assist in making the employee whole by ensuring that the circumstances
that led to retaliation do not persist, thus remedying the employee's
fear of future retaliation for having engaged in the protected activity
that gave rise to employee's whistleblower complaint. Therefore, while
OSHA is cognizant of the textual differences between NTSSA and FRSA, it
has made no change in response to this comment to the text of 1982.105,
which permits an order of abatement where appropriate.
In addition to the revisions noted above, which clarify the
provision of interest on back pay awards and the allocation of back pay
to the appropriate calendar quarters or months, minor changes were made
as needed to clarify the provision without changing its meaning.
Subpart B--Litigation
Section 1982.106 Objections to the Findings and the Preliminary Order
and Requests for a Hearing
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, Washington, DC
20001 within 30 days of receipt of the findings. The date of the
postmark, facsimile transmittal, or 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 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 U.S. Department of Labor's Associate Solicitor for
Fair Labor Standards, the failure to serve copies of the objections on
the other parties of record does not affect the ALJ's jurisdiction to
hear and decide the merits of the case. See Shirani v. Calvert Cliffs
Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at * 7 (ARB
Oct. 31, 2005).
The timely filing of objections stays all provisions of the
preliminary order, except for the portion requiring reinstatement. A
respondent may file a motion to stay OSHA's preliminary order of
reinstatement with the Office of Administrative Law Judges. However,
such a motion will be granted only based on exceptional circumstances.
Language was added to paragraph (b) of this section to make this point
clear. A stay of the Assistant Secretary's preliminary order of
reinstatement under FRSA or NTSSA 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. See Bailey v. Consol. Rail Corp., ARB
Nos. 13-030 13-033, 2013 WL 1385563, at * 2 (ARB Mar. 27, 2013)
(discussing the factors for obtaining a stay of reinstatement under
FRSA). If no timely objection to OSHA's findings and/or preliminary
order is filed, then OSHA's findings and/or preliminary order become
the final decision of the Secretary not subject to judicial review.
No comments were received on this section. The term "electronic
communication transmittal" was substituted for "email communication"
and other minor changes were made as needed to clarify the provision
without changing its meaning.
Section 1982.107 Hearings
This section adopts the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges
at 29 CFR part 18 subpart A. It specifically provides for hearings to
be consolidated where both the complainant and respondent object to the
findings and/or order of the Assistant Secretary. This section further
provides that the hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo, on the record.
In a revision from the interim final rule, paragraph (b) now notes
the broad authority of ALJs to limit discovery in order to expedite the
hearing. This change was made for consistency with OSHA's rules under
other whistleblower statutes, which similarly note that the ALJ has
broad authority to limit discovery. See, e.g., 29 CFR 1979.107 (AIR
21); 29 CFR 1980.107 (Sarbanes-Oxley). As with other whistleblower
statutes administered by OSHA, FRSA, and NTSSA dictate that hearings
"shall be conducted expeditiously" and allow complainants to seek de
novo review of the complaint in federal court if the Secretary has not
issued a final decision within 210 days after the filing of the complaint.
See 6 U.S.C. 1142(c)(7) and 49 U.S.C. 20109(d)(3). The ALJ's broad
discretion to limit discovery, for example by limiting the number of
interrogatories, requests for production of documents, or depositions allowed,
furthers Congress's intent to provide for expeditious hearings
under FRSA and NTSSA.
Finally, this section has been revised to add paragraph (d), which
specifies that the formal rules of evidence will not apply to
proceedings before an ALJ under section 1982.107, but rules or
principles designed to assure the production of the most probative
evidence will be applied. The Department has taken the same approach
under the other whistleblower statutes administered by OSHA. See, e.g.,
29 CFR 1979.107 (AIR 21); 29 CFR 1980.107 (Sarbanes-Oxley). This
approach is also consistent with the Administrative Procedure Act,
which provides at 5 U.S.C. 556(d): "Any oral or documentary evidence
may be received, but the agency as a matter of policy shall provide for
the exclusion of irrelevant, immaterial, or unduly repetitious
evidence." See also Federal Trade Comm'n v. Cement Inst., 333 U.S.
683, 805-06 (1948) (administrative agencies not restricted by rigid
rules of evidence). The Secretary believes that it is inappropriate to
apply the rules of evidence at 29 CFR part 18 subpart B because
whistleblowers often appear pro se and may be disadvantaged by strict
adherence to formal rules of evidence. Furthermore, hearsay evidence is
often appropriate in whistleblower cases, as there often are no
relevant documents or witnesses other than hearsay to prove retaliation
ALJs have the responsibility to determine the appropriate weight to be
given such evidence. For these reasons, the interests of determining
all of the relevant facts are best served by not requiring strict
evidentiary rules.
No comments were received on this section, but, as explained above,
this section was revised to specify that the formal rules of evidence
will not apply to proceedings before an ALJ under this section.
Section 1982.108 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 NTSSA or FRSA. 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, large numbers of employees, alleged violations which appear
egregious, or where the interests of justice might require
participation by the Assistant Secretary. The Department of
Transportation or the Department of Homeland Security, at each agency's
discretion, also may participate as amicus curiae at any time in the
proceedings. No comments were received on this section; however, it has
been revised to specify that parties need only send documents to OSHA
and the Department of Labor's Associate Solicitor for Fair Labor
Standards when OSHA requests that documents be sent, OSHA is
participating in the proceeding, or service on OSHA is otherwise
required by these rules. Other minor changes were made as needed to
clarify this provision without changing its meaning.
Section 1982.109 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 NTSSA or FRSA. Paragraphs (a) and (b) set forth the
burdens of proof that apply to claims under NTSSA and FRSA.
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 v.
Admin. Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) ("The term
`demonstrates' [under identical burden-shifting scheme in the Sarbanes-
Oxley whistleblower provision] means to prove by a preponderance of the
evidence."). If the employee demonstrates that the alleged protected
activity was a contributing factor in the adverse action, 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 6 U.S.C. 1142(c)(2)(B)(iv); 49 U.S.C.
42121(b)(2)(B)(iv). The section further provides that the Assistant
Secretary's determination to dismiss the complaint without an
investigation or without a complete investigation pursuant to section
1982.104 is not subject to review. Thus, paragraph (c) of section
1982.109 clarifies that the Assistant Secretary's determinations on
whether to proceed with an investigation under NTSSA or FRSA and
whether to make particular investigative findings under either of the
statutes subject to this part are discretionary decisions not subject
to review by the ALJ. The ALJ hears cases de novo and, therefore, as a
general matter, may not remand cases to the Assistant Secretary to
conduct an investigation or make further factual findings. A full
discussion of the burdens of proof used by the Department to resolve
whistleblower cases under this part is set forth above in the
discussion of section 1982.104.
Paragraph (d) notes the remedies that the ALJ may order under NTSSA
or FRSA and, as discussed under section 1982.105 above, provides that
interest on back pay will be calculated using the interest rate
applicable to underpayment of taxes under 26 U.S.C. 6621 and will be
compounded daily. Paragraph (d) has also been revised to provide that
the respondent will be required to submit appropriate documentation to
the Social Security Administration or the Railroad Retirement Board, as
appropriate, allocating any back pay award to the appropriate calendar
quarters or months.
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 Administrative Review Board.
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 those tribunals 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.
AAR urged OSHA to include in this section a provision permitting an
ALJ in a FRSA case to award the employer up to $1,000 in reasonable
attorney fees if the ALJ determines that the complaint was frivolous or
brought in bad faith. AAR pointed out that FRSA requires that AIR 21
rules and procedures be used in FRSA actions, and that the AIR 21
statute and regulations provide for attorney fees in such
circumstances. See 49 U.S.C. 20109(d)(2)(A); 49 U.S.C. 42121(b)(3)(C);
29 CFR 1979.109(b). OSHA does not believe that such a provision is
warranted under FRSA. FRSA incorporates only the rules and procedures
of AIR 21. It does not incorporate the attorney-fee provision from AIR
21. See Vason v. Port Auth. Trans Hudson, ALJ No. 2010-FRS-00038, at 3-
4 (ALJ Dec. 20, 2010) (concluding that AIR 21's attorney fee provision
for cases that are frivolous or brought in bad faith is not a "rule"
or "procedure" and therefore FRSA's incorporation of AIR 21's rules
and procedures does not incorporate AIR 21's attorney fee provision).
Modifications were made to this section to match the language
regarding remedies in 1982.105(a)(1). 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 1982.110(a) and moved
to paragraph (e) of this section. Additional minor changes were made to
clarify this provision without changing its meaning.
Section 1982.110 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 to be the date of
filing of the petition; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt.
The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections 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. In order to be consistent with
the practices and procedures followed in OSHA's other whistleblower
programs, and to provide further clarification of the regulatory text,
OSHA has modified the language of section 1982.110(c) to clarify when
the ALJ proceedings conclude and when the final decision of the ARB
will be issued.
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 NTSSA or FRSA, which otherwise would be
effective, while review is conducted by the ARB. A stay of an ALJ's
preliminary order of reinstatement under NTSSA or FRSA would be
appropriate only where the respondent can establish the necessary
criteria for equitable injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a balancing of possible harms to
the parties, and the public interest favors a stay. See Bailey, 2013 WL
1385563, at * 2 (discussing the factors for obtaining a stay of
reinstatement under FRSA).
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. If the ARB
determines that the respondent has not violated the law, an order will
be issued denying the complaint. In addition, when back pay is ordered,
the respondent will be required to submit appropriate documentation to
the Social Security Administration or the Railroad Retirement Board, as
appropriate, allocating any back pay award to the appropriate months or
calendar quarters. If, upon the request of the respondent, the ARB
determines that a complaint filed under NTSSA was frivolous or was
brought in bad faith, the ARB may award to the respondent reasonable
attorney fees, not exceeding $1,000.
With regard to section 1982.110(a), NWC urged deletion of the
provision in the interim final rule that "[a]ny exception not
specifically urged will ordinarily be deemed waived by the parties."
NWC commented that parties should be allowed to add additional grounds
for review in subsequent briefs and that allowing parties to do so
would further the goal of deciding cases on the merits. In response,
OSHA notes that its inclusion of this provision is not intended to
limit the circumstances in which parties can add additional grounds for
review as a case progresses before the ARB; rather, the rules include
this provision to put the public on notice of the possible consequences
of failing to specify the basis of an appeal to the ARB. OSHA
recognizes that while the ARB has held in some instances that an
exception not specifically urged may be deemed waived, the ARB also has
found that the rules provide for exceptions to this general rule. See,
e.g., Furland v. American Airlines, Inc., ARB Nos. 09-102, 10-130, 2011
WL 3413364, at * 10, n.5 (ARB July 27, 2011) (where complainant
consistently made an argument throughout the administrative proceedings
the argument was not waived simply because it appeared in complainant's
reply brief to the ARB rather than in the petition for review); Avlon
v. American Express Co., ARB No. 09-089, 2011 WL 4915756, at * 4, * 5,
n.1 (ARB Sept. 14, 2011) (consideration of an argument not specifically
raised in complainant's petition for review is within the authority of
the ARB, and parallel provisions in the Sarbanes-Oxley Act
whistleblower regulations do not mandate the ARB limit its review to
ALJ conclusions assigned as error in the petition for review). However,
recognizing that the interim final rule may have suggested too
stringent a standard, OSHA has replaced the phrase "ordinarily will"
with "may." NWC also suggested that the review period be extended
from ten to thirty days to make this section parallel to the provision
in 1982.105(c), which allows for thirty days within which to file an
objection. OSHA declines to extend the review period to 30 days because
a 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.
Similarly, section 1982.110(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 1982.110(a), this revision does not substantively
alter the length of time before the ALJ hearing will be deemed to have
been concluded.
In addition to the changes noted above, OSHA moved the statement in
paragraph (a) that 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 to section 1982.109(e)
for clarity. Modifications were made paragraph (d) of this section to
match the language regarding remedies in section 1982.105(a)(1).
Lastly, OSHA has revised this section slightly to clarify that interest
on back pay awards will be compounded daily and to make several minor
changes to clarify the provision and more closely mirror the language
used in the statutes.
Subpart C--Miscellaneous Provisions
Section 1982.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides for the procedures and time periods for
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and the withdrawal of objections to
findings and/or orders. It also provides for approval of settlements at
the investigative and adjudicative stages of the case.
AAR and Rail Labor both submitted comments relating to settlements.
AAR stated that OSHA should not be overly involved in settlements as
such involvement could frustrate the parties' ability to reach
settlements. In addition, AAR noted that an employee often files a
collective bargaining or statutory claim, such as a FELA claim,
simultaneously with a FRSA claim. According to AAR, a settlement may
resolve all of the employee's claims. OSHA has jurisdiction only over
the FRSA claim and therefore cannot review the aspects of the
settlement that do not involve the FRSA claim. Rail Labor similarly
commented that it is possible that an employee may pursue multiple
claims simultaneously. Rail Labor suggested modifying the language in
section 1982.111(d) to clarify how a settlement will affect other
pending cases and other parties involved in a particular case.
While OSHA recognizes that, in whistleblower cases generally, an
employee may have more than one cause of action against the employer,
OSHA does not believe that any change in the procedures for handling
whistleblower complaints is necessary to accommodate this possibility.
NTSSA and FRSA both provide that, at any time before the issuance of a
final order of the Secretary, a proceeding before the agency may be
terminated on the basis of a settlement "entered into" by the
Secretary, the complainant, and the respondent. 6 U.S.C. 1142(c)(3)(A);
49 U.S.C. 20109(d)(2)(A); 49 U.S.C. 42121(b)(3)(A). The procedures for
submission of settlements to the agency under section 1982.111
implement these statutory requirements to ensure that settlements of
whistleblower claims under NTSSA and FRSA are fair, adequate, and
reasonable, in the public interest, and that the employee's consent was
knowing and voluntary.
The final rule adopts a revision to section 1982.111(a) that
permits complainants to withdraw their complaints orally. In such
circumstances, OSHA will, in writing, confirm a complainant's desire to
withdraw. This revision will reduce burdens on complainants who no
longer want to pursue their claims. Other minor changes were made as
needed to clarify the provision without changing its meaning.
Section 1982.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the ALJ or the ARB to submit the record of
proceedings to the appropriate court pursuant to the rules of such
court. This section also states that a final order is not subject to
judicial review in any criminal or other civil proceeding. NTSSA
explicitly provides that "[a]n order of the Secretary of Labor with
respect to which review could have been obtained [in the court of
appeals] shall not be subject to judicial review in any criminal or
other civil proceeding." 6 U.S.C. 1142(c)(4)(B). In addition, the
Secretary interprets FRSA as also prohibiting collateral attack on a
final order of the Secretary. This interpretation is consistent with
well-established case law that, where "a direct-review statute
specifically gives the court of appeals subject-matter jurisdiction to
directly review agency action[,]" district courts do not have federal
question jurisdiction. Watts v. Securities and Exchange Comm'n, 482
F.3d 501, 505 (D.C. Cir. 2007); see Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 208 (1994) (district court did not have jurisdiction over
an action by mine operators challenging an administrative order because
the statute only expressly authorized district court jurisdiction in
actions by the Secretary and provided for judicial review in the court
of appeals); Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 873 (D.C. Cir.
2002) (dismissing action claiming that Secretary lacked statutory
authority to conduct a survey because the action was not one of those
over which district courts had jurisdiction under the statute and
statute provided for judicial review of agency action in the court of
appeals); Griffith v. Fed. Labor Relations Auth., 842 F.2d 487, 491
(D.C. Cir. 1988) (district court did not have jurisdiction because,
while the statute explicitly authorized district court review of some
types of actions, it did not authorize review of the particular action
at issue and judicial review was available in the court of appeals). No
comments were received on this section. However, minor changes have
been made to clarify it.
Section 1982.113 Judicial Enforcement
This section describes the Secretary's authority under NTSSA and
FRSA to obtain judicial enforcement of orders and the terms of a
settlement agreement.
FRSA expressly authorizes district courts to enforce orders,
including preliminary orders of reinstatement, issued by the Secretary
under 49 U.S.C. 20109(d)(2)(A) (adopting the rules and procedures set
forth in AIR 21, 49 U.S.C. 42121(b)). 49 U.S.C. 20109(d)(2)(A)(iii)
("If a person fails to comply with an order issued by the Secretary of
Labor pursuant to the procedures in section 42121(b), the Secretary of
Labor may bring a civil action to enforce the order in the district
court of the United States for the judicial district in which the
violation occurred, as set forth in 42121."). FRSA permits the
Secretary to bring an action to obtain such enforcement. 49 U.S.C.
20109(d)(2)(A)(iii). However, there is no provision in FRSA permitting
the person on whose behalf the order was issued to bring such an action.
NTSSA gives district courts authority to enforce orders, including
preliminary reinstatement orders, issued by the Secretary.
Specifically, reinstatement orders issued under subsection (c)(3) are
immediately enforceable in district court under 6 U.S.C. 1142(c)(5) and
(6). Subsections (c)(3)(B)(ii) and (d)(2)(A) provide that the Secretary
shall order the person who has committed a violation to reinstate the
complainant to his or her former position. Subsection (c)(2)(A)
instructs the Secretary to accompany any reasonable cause finding that
a violation occurred with a preliminary order containing the relief
prescribed by subsection (c)(3)(B), which includes reinstatement. 6
U.S.C. 1142(c)(3)(B)(ii) and (d)(2)(A). Subsection (c)(2)(A) also
declares that the subsection (c)(3)(B)'s relief of reinstatement
contained in a preliminary order is not stayed upon the filing of
objections. 6 U.S.C. 1142(c)(2)(A) ("The filing of such objections
shall not operate to stay any reinstatement remedy contained in the
preliminary order.") Thus, under the statute, enforceable orders
issued under subsection (c)(3)(B) include preliminary orders that
contain the relief of reinstatement prescribed by subsection (c)(3)(B)
and (d)(2)(A). This statutory interpretation of FRSA and NTSSA is
consistent with the Secretary's interpretation of similar language in
AIR 21 and Sarbanes-Oxley. See Brief for the Secretary of Labor, Solis
v. Union Pacific R.R. Co., No. 4:12-cv-00304 BLW (D. Id. 2012); Brief
for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v.
Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v.
Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010);
but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir.
2006); Solis v. Union Pacific R.R. Co., No. 4:12-cv-00304 BLW, 2013 WL
440707 (D. Id. Jan. 11, 2013); Welch v. Cardinal Bankshares Corp., 454
F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed,
No. 06-2995 (4th Cir. Feb. 20, 2008)). NTSSA also permits the person on
whose behalf the order was issued under NTSSA to obtain judicial
enforcement of orders and the terms of a settlement agreement.
Rail Labor commented on this provision (it labeled its comment as
related to section 1982.112, which addresses judicial review, but it is
clear from the substance of the comment that it is related to section
1982.113, which addresses judicial enforcement). Rail Labor disagreed
with the statement in the proposal that, under FRSA, the person on
whose behalf an order was issued cannot bring an action to enforce such
order (only the Secretary can). However, if OSHA's interpretation is
correct, Rail Labor expressed concern that the language in section
1982.113 gives unrestricted discretion to OSHA to enforce an order.
Therefore, Rail Labor suggested that this section should be modified to
clarify that the Secretary will, in all but the most extraordinary
circumstances, enforce an order.
OSHA declines to change this section as suggested. FRSA provides
that the Secretary may bring an action to enforce an order, such as a
preliminary reinstatement order. FRSA also states that an order of
preliminary reinstatement will not be stayed during the administrative
proceedings, making clear that preliminary reinstatement is the
presumptive remedy for retaliation. OSHA does not believe any further
explanation of the circumstances in which the Secretary will seek
enforcement of an order, such as a preliminary reinstatement order, is
necessary in these rules.
OSHA has made two changes to this section that are not intended to
have substantive effects. First, OSHA has revised this section to more
closely parallel the differing provisions of NTSSA and FRSA regarding
the proper venue for enforcement actions. Second, the list of remedies
that formerly appeared in this section has been moved to section
1982.114. This revision does not reflect a change in the Secretary's
views regarding the remedies that are available under NTSSA and FRSA in
an action to enforce an order of the Secretary. The revision has been
made to better parallel the statutory structure of NTSSA and FRSA which
both 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.
Section 1982.114 District Court Jurisdiction of Retaliation Complaints
This section sets forth NTSSA's and FRSA's respective provisions
allowing a complainant to bring an original de novo action in district
court, alleging the same allegations contained in the complaint filed
with OSHA, if there has been no final decision of the Secretary within
210 days of the filing of the complaint and there is no delay due to
the complainant's bad faith.
In the Secretary's view, the right to seek de novo review in
district court under these provisions terminates when the Secretary
issues a final decision, even if the date of the final decision is more
than 210 days after the filing of the complaint. The purpose of these
"kick-out" provisions is to aid the complainant in receiving a prompt
decision. That goal is not implicated in a situation where the
complainant already has received a final decision from the Secretary.
In addition, as previously discussed with regard to Sec. 1982.112
above, permitting the complainant to file a new case in district court
in such circumstances would be a collateral attack on the Secretary's
final order and, as such, is inconsistent with the provisions providing
parties the right to seek judicial review of the Secretary's final
decision in the court of appeals.
OSHA has revised paragraph (a) of this section to incorporate the
statutory provision allowing a jury trial at the request of either
party in a district court action under NTSSA and FRSA. OSHA also has
added paragraph (b) to specify the burdens of proof applicable to
"kick out" actions under this section and the statutory remedies
available in those actions. For both NTSSA and FRSA complaints, the
same burdens of proof that apply in proceedings before the ALJ, as
outlined in section 1982.109, apply to "kick out" actions. See 6
U.S.C. 1142(c)(7); Araujo, 708 F.3d at 157-58 (holding that the burdens
of proof in 49 U.S.C. 42121 apply to "kick out" actions under FRSA).
Paragraph (b) also notes the remedies available to an employee who
prevails in an action in district court, which are the same under NTSSA
and FRSA. Both NTSSA and FRSA provide that an employee who prevails in
an action in district court shall be entitled to all relief necessary
to make the employee whole and that remedies shall include
reinstatement with the same seniority status that the employee would
have had, but for the retaliation, any back pay with interest, and
payment of compensatory damages, including compensation for any special
damages sustained as a result of the retaliation, including litigation
costs, expert witness fees, and reasonable attorney fees. The relief
for an employee who prevails in an action in district court under NTSSA
or FRSA may also include punitive damages in an amount not to exceed
$250,000. See 6 U.S.C. 1142 (d); 49 U.S.C. 20109(e).
In paragraph (c) of this section, OSHA eliminated the requirement
in the interim final rule that complainants provide the agency 15 days
advance notice before filing a de novo complaint in district court.
Instead, this section now provides that within seven days after filing
a complaint in district court, a complainant must provide a file-
stamped copy of the complaint to the Assistant Secretary, the ALJ, or
the ARB, depending on where the proceeding is pending. In all cases a copy of
the district court complaint also must be provided to the Regional
Administrator, the Assistant Secretary, Occupational Safety and Health
Administration, and the U.S. Department of Labor's Associate Solicitor
for Fair Labor Standards. This provision is necessary to notify the
agency that the complainant has opted to file a complaint in district
court. This provision is not a substitute for the complainant's
compliance with the requirements for service of process of the district
court complaint contained in the Federal Rules of Civil Procedure and
the local rules of the district court where the complaint is filed.
This change responds to NWC's comment that the 15-day advance
notice requirement for filing a suit in district court should be
eliminated because it inhibits complainants' access to federal courts.
OSHA believes that a provision for notifying the agency of the district
court complaint is necessary to avoid unnecessary expenditure of agency
resources once a complainant has decided to remove the complaint to
federal district court. OSHA believes that the revised provision
adequately balances the complainant's interest in ready access to
federal court and the agency's interest in receiving prompt notice that
the complainant no longer wishes to continue with the administrative
proceeding. Other minor changes were made as needed to clarify the
provision without changing its meaning.
Section 1982.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and notice to the parties, waive any rule as justice or the
administration of NTSSA or FRSA requires.
Rail Labor commented that the waiver provision raises due process
concerns and should therefore be deleted. According to Rail Labor, any
waiver works to the disadvantage of one party and the advantage of the
other party, and it creates a drain on limited agency resources.
OSHA believes that, because these procedural rules cannot cover
every conceivable contingency, there may be occasions where certain
exceptions to the rules are necessary. OSHA notes that a similar
section appears in the regulations for handling complaints under the
whistleblower provisions of AIR 21 and Sarbanes-Oxley and that both the
ALJs and the ARB have relied upon the rule on occasion. See, e.g.,
Haefling v. United Parcel Serv., ALJ No. 98-STA-6 (ALJ Mar. 23, 1998);
Caimano v. Brink's Inc., ARB No 97-041, 1997 WL 24368 (ARB Jan 22,
1997). Thus, OSHA has made no changes to this section.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, section 1982.103) 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 interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice." (5 U.S.C. 553(b)(A)). This is a rule of
agency procedure, practice and interpretation within the meaning of
that section. Therefore, publication in the Federal Register of a
notice of proposed rulemaking and request for comments were not
required for these regulations, which provide the procedures for the
handling of retaliation complaints and set forth the Secretary's
interpretations on certain statutory issues. The Assistant Secretary,
however, 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 interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. The Assistant Secretary also finds good cause to
provide an immediate effective date for this final rule. It is in the
public interest that the rule be effective immediately so that parties
may know what procedures are applicable to pending cases.
VI. Executive Orders 12866 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 has been 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, at 9; also found at
https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act.
This is a rule of agency procedure, practice, and interpretation
within the meaning of 5 U.S.C. 553; and therefore the rule is exempt
from both the notice and comment rulemaking procedures of the APA
and the requirements under the RFA.
Document Preparation: This document was prepared under the
direction and control of the Assistant Secretary, Occupational Safety
and Health Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 1982
Administrative practice and procedure, Employment, Homeland
security, Investigations, Mass transportation, Reporting and
recordkeeping requirements, Public transportation, Railroads, Safety,
Transportation, Whistleblowing.
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 October 28, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble, 29 CFR part
1982 is revised to read as follows:
PART 1982--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT AND THE FEDERAL
RAILROAD SAFETY ACT
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1982.100 Purpose and scope.
1982.101 Definitions.
1982.102 Obligations and prohibited acts.
1982.103 Filing of retaliation complaints.
1982.104 Investigation.
1982.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1982.106 Objections to the findings and the preliminary order and
requests for a hearing.
1982.107 Hearings.
1982.108 Role of Federal agencies.
1982.109 Decision and orders of the administrative law judge.
1982.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1982.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1982.112 Judicial review.
1982.113 Judicial enforcement.
1982.114 District court jurisdiction of retaliation complaints.
1982.115 Special circumstances; waiver of rules.
Authority: 6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary of
Labor's Order 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. 1982.100 Purpose and scope.
(a) This part implements procedures of the National Transit Systems
Security Act (NTSSA), 6 U.S.C. 1142, and the Federal Railroad Safety
Act (FRSA), 49 U.S.C. 20109, as amended. NTSSA provides for employee
protection from retaliation because the employee has engaged in
protected activity pertaining to public transportation safety or
security (or, in circumstances covered by the statute, the employee is
perceived to have engaged or to be about to engage in protected
activity). FRSA provides for employee protection from retaliation
because the employee has engaged in protected activity pertaining to
railroad safety or security (or, in circumstances covered by the
statute, the employee is perceived to have engaged or to be about to
engage in protected activity), has requested medical or first aid
treatment, or has followed orders or a treatment plan of a treating
physician. It also protects an employee against delay, denial or
interference with first aid or medical treatment for a workplace
injury.
(b) This part establishes procedures under NTSSA and FRSA for the
expeditious handling of retaliation complaints filed by employees, or
by persons acting on their behalf, and sets forth the Secretary's
interpretations of NTSSA and FRSA on certain statutory issues. These
rules, together with those codified at 29 CFR part 18, set forth the
procedures under NTSSA or FRSA for submission of complaints,
investigations, issuance of findings and preliminary orders, objections
to findings and orders, litigation before administrative law judges,
post-hearing administrative review, and withdrawals and settlements.
Sec. 1982.101 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under NTSSA or FRSA.
(b) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(c) Complainant means the employee who filed a NTSSA or FRSA
complaint or on whose behalf a complaint was filed.
(d) Employee means an individual presently or formerly working for,
an individual applying to work for, or an individual whose employment
could be affected by a public transportation agency or a railroad
carrier, or a contractor or subcontractor of a public transportation
agency or a railroad carrier.
(e) FRSA means Section 1521 of the Implementing Recommendations of
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, as
further amended by Public Law 110-432, October, 16, 2008, codified at
49 U.S.C. 20109.
(f) NTSSA means Section 1413 of the Implementing Recommendations of
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007,
codified at 6 U.S.C. 1142.
(g) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(h) Public transportation means regular, continuing shared-ride
surface transportation services that are open to the general public or
open to a segment of the general public defined by age, disability, or
low income; and does not include: Intercity passenger rail
transportation provided by the entity described in chapter 243 (or a
successor to such entity); intercity bus service; charter bus service;
school bus service; sightseeing service; courtesy shuttle service for
patrons of one or more specific establishments; or intra-terminal or
intra-facility shuttle services.
(i) Public transportation agency means a publicly owned operator of
public transportation eligible to receive federal assistance under 49
U.S.C. chapter 53.
(j) Railroad means any form of nonhighway ground transportation
that runs on rails or electromagnetic guideways, including commuter or
other short-haul railroad passenger service in a metropolitan or
suburban area and commuter railroad service that was operated by the
Consolidated Rail Corporation on January 1, 1979; and high speed ground
transportation systems that connect metropolitan areas, without regard
to whether those systems use new technologies not associated with
traditional railroads; but does not include rapid transit operations in
an urban area that are not connected to the general railroad system of
transportation.
(k) Railroad carrier means a person providing railroad
transportation, except that, upon petition by a group of commonly
controlled railroad carriers that the Secretary of Transportation
determines is operating within the United States as a single,
integrated rail system, the Secretary of Transportation may by order
treat the group of railroad carriers as a single railroad carrier for
purposes of one or more provisions of part A, subtitle V of title 49
and implementing regulations and order, subject to any appropriate
conditions that the Secretary of Transportation may impose.
(l) Respondent means the person alleged to have violated NTSSA or
FRSA.
(m) Secretary means the Secretary of Labor or person to whom
authority under NTSSA or FRSA has been delegated.
(n) Any future statutory amendments that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1982.102 Obligations and prohibited acts.
(a) National Transit Systems Security Act. (1) A public
transportation agency, contractor, or subcontractor of such agency, or
officer or employee of such agency, shall not discharge, demote,
suspend, reprimand, or in any other way retaliate against, including
but not limited to intimidating, threatening, restraining, coercing,
blacklisting, or disciplining, an employee if such retaliation is due,
in whole or in part, to the employee's lawful, good faith act done, or
perceived by the employer to have been done or about to be done--
(i) To provide information, directly cause information to be
provided, or otherwise directly assist in any investigation regarding
any conduct which the employee reasonably believes constitutes a
violation of any Federal law, rule, or regulation relating to public
transportation safety or security, or fraud, waste, or abuse of Federal
grants or other public funds intended to be used for public
transportation safety or security, if the information or assistance is
provided to or an investigation stemming from the provided information
is conducted by--
(A) A Federal, State or local regulatory or law enforcement agency
(including an office of the Inspector General under the Inspector
General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));
(B) Any Member of Congress, any Committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
(ii) To refuse to violate or assist in the violation of any Federal
law, rule, or regulation relating to public transportation safety or
security;
(iii) To file a complaint or directly cause to be brought a
proceeding related to the enforcement of this section or to testify in
that proceeding;
(iv) To cooperate with a safety or security investigation by the
Secretary of Transportation, the Secretary of Homeland Security, or the
National Transportation Safety Board; or
(v) To furnish information to the Secretary of Transportation, the
Secretary of Homeland Security, the National Transportation Safety
Board, or any Federal, State, or local regulatory or law enforcement
agency as to the facts relating to any accident or incident resulting
in injury or death to an individual or damage to property occurring in
connection with public transportation.
(2)(i) A public transportation agency, contractor, or subcontractor
of such agency, or officer or employee of such agency, shall not
discharge, demote, suspend, reprimand, or in any other way retaliate
against, including but not limited to intimidating, threatening,
restraining, coercing, blacklisting, or disciplining, an employee for--
(A) Reporting a hazardous safety or security condition;
(B) Refusing to work when confronted by a hazardous safety or
security condition related to the performance of the employee's duties,
if the conditions described in paragraph (a)(2)(ii) of this section
exist; or
(C) Refusing to authorize the use of any safety- or security-
related equipment, track, or structures, if the employee is responsible
for the inspection or repair of the equipment, track, or structures,
when the employee believes that the equipment, track, or structures are
in a hazardous safety or security condition, if the conditions
described in paragraph (a)(2)(ii) of this section exist.
(ii) A refusal is protected under paragraph (a)(2)(i)(B) and (C) of
this section if--
(A) The refusal is made in good faith and no reasonable alternative
to the refusal is available to the employee;
(B) A reasonable individual in the circumstances then confronting
the employee would conclude that--
(1) The hazardous condition presents an imminent danger of death or
serious injury; and
(2) The urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
(C) The employee, where possible, has notified the public
transportation agency of the existence of the hazardous condition and
the intention not to perform further work, or not to authorize the use
of the hazardous equipment, track, or structures, unless the condition
is corrected immediately or the equipment, track, or structures are
repaired properly or replaced.
(iii) In this paragraph (a)(2), only paragraph (a)(2)(i)(A) shall
apply to security personnel, including transit police, employed or
utilized by a public transportation agency to protect riders,
equipment, assets, or facilities.
(b) Federal Railroad Safety Act. (1) A railroad carrier engaged in
interstate or foreign commerce, a contractor or a subcontractor of such
a railroad carrier, or an officer or employee of such a railroad
carrier, may not discharge, demote, suspend, reprimand, or in any other
way retaliate against, including but not limited to intimidating,
threatening, restraining, coercing, blacklisting, or disciplining, an
employee if such retaliation is due, in whole or in part, to the
employee's lawful, good faith act done, or perceived by the employer to
have been done or about to be done--
(i) To provide information, directly cause information to be
provided, or otherwise directly assist in any investigation regarding
any conduct which the employee reasonably believes constitutes a
violation of any Federal law, rule, or regulation relating to railroad
safety or security, or gross fraud, waste, or abuse of Federal grants
or other public funds intended to be used for railroad safety or
security, if the information or assistance is provided to or an
investigation stemming from the provided information is conducted by--
(A) A Federal, State, or local regulatory or law enforcement agency
(including an office of the Inspector General under the Inspector
General Act of 1978 (5 U.S.C. App.; Public Law 95-452));
(B) Any Member of Congress, any committee of Congress, or the
Government Accountability Office; or
(C) A person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
(ii) To refuse to violate or assist in the violation of any Federal
law, rule, or regulation relating to railroad safety or security;
(iii) To file a complaint, or directly cause to be brought a
proceeding related to the enforcement of 49 U.S.C. part A of subtitle V
or, as applicable to railroad safety or security, 49 U.S.C. chapter 51
or 57, or to testify in that proceeding;
(iv) To notify, or attempt to notify, the railroad carrier or the
Secretary of Transportation of a work-related personal injury or work-
related illness of an employee;
(v) To cooperate with a safety or security investigation by the
Secretary of Transportation, the Secretary of Homeland Security,
or the National Transportation Safety Board;
(vi) To furnish information to the Secretary of Transportation, the
Secretary of Homeland Security, the National Transportation Safety
Board, or any Federal, State, or local regulatory or law enforcement
agency as to the facts relating to any accident or incident resulting
in injury or death to an individual or damage to property occurring in
connection with railroad transportation; or
(vii) To accurately report hours on duty pursuant to 49 U.S.C.
chapter 211.
(2)(i) A railroad carrier engaged in interstate or foreign
commerce, or an officer or employee of such a railroad carrier, shall
not discharge, demote, suspend, reprimand, or in any other way
retaliate against, including but not limited to intimidating,
threatening, restraining, coercing, blacklisting, or disciplining, an
employee for--
(A) Reporting, in good faith, a hazardous safety or security
condition;
(B) Refusing to work when confronted by a hazardous safety or
security condition related to the performance of the employee's duties,
if the conditions described in paragraph (b)(2)(ii) of this section
exist; or
(C) Refusing to authorize the use of any safety-related equipment,
track, or structures, if the employee is responsible for the inspection
or repair of the equipment, track, or structures, when the employee
believes that the equipment, track, or structures are in a hazardous
safety or security condition, if the conditions described in paragraph
(b)(2)(ii) of this section exist.
(ii) A refusal is protected under paragraph (b)(2)(i)(B) and (C) of
this section if--
(A) The refusal is made in good faith and no reasonable alternative
to the refusal is available to the employee;
(B) A reasonable individual in the circumstances then confronting
the employee would conclude that--
(1) The hazardous condition presents an imminent danger of death or
serious injury; and
(2) The urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
(C) The employee, where possible, has notified the railroad carrier
of the existence of the hazardous condition and the intention not to
perform further work, or not to authorize the use of the hazardous
equipment, track, or structures, unless the condition is corrected
immediately or the equipment, track, or structures are repaired
properly or replaced.
(iii) In this paragraph (b)(2), only paragraph (b)(2)(i)(A) shall
apply to security personnel employed by a railroad carrier to protect
individuals and property transported by railroad.
(3) A railroad carrier or person covered under this section may
not:
(i) Deny, delay, or interfere with the medical or first aid
treatment of an employee who is injured during the course of
employment. If transportation to a hospital is requested by an employee
injured during the course of employment, the railroad shall promptly
arrange to have the injured employee transported to the nearest
hospital where the employee can receive safe and appropriate medical
care.
(ii) Discipline, or threaten discipline to, an employee for
requesting medical or first aid treatment, or for following orders or a
treatment plan of a treating physician, except that--
(A) A railroad carrier's refusal to permit an employee to return to
work following medical treatment shall not be considered a violation of
FRSA if the refusal is pursuant to Federal Railroad Administration
medical standards for fitness of duty or, if there are no pertinent
Federal Railroad Administration standards, a carrier's medical
standards for fitness for duty.
(B) For purposes of this paragraph, the term "discipline" means
to bring charges against a person in a disciplinary proceeding,
suspend, terminate, place on probation, or make note of reprimand on an
employee's record.
Sec. 1982.103 Filing of retaliation complaints.
(a) Who may file. An employee who believes that he or she has been
retaliated against in violation of NTSSA or FRSA may file, or have
filed by any person on the employee's behalf, a complaint alleging such
retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If 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
NTSSA or FRSA occurs, any employee who believes that he or she has been
retaliated against in violation of NTSSA or FRSA may file, or have
filed by any person on the employee's behalf, a complaint alleging such
retaliation. The date of the postmark, facsimile transmittal,
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
another agency instead of OSHA within 180 days after becoming aware of
the alleged violation.
Sec. 1982.104 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, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws. OSHA will also notify the
respondent of its rights under paragraphs (b) and (f) of this section
and Sec. 1982.110(e). OSHA will provide an unredacted copy of these
same materials to the complainant (or the complainant's legal counsel
if complainant is represented by counsel), and to the Federal Railroad
Administration, the Federal Transit Administration, or the
Transportation Security Administration as appropriate.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
may submit to 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 protected activity was a contributing
factor in the adverse action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity (or, in
circumstances covered by NTSSA and FRSA, was perceived to have engaged
or to be about to engage in protected activity);
(ii) The respondent knew or suspected that the employee engaged in
the protected activity (or, in circumstances covered by NTSSA and FRSA,
perceived the employee to have engaged or to be about to engage in
protected activity);
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity (or perception thereof) was a contributing
factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity (or, in circumstances covered by
NTSSA and FRSA, perceived the employee to have engaged or to be about
to engage in protected activity), and that the protected activity (or
perception thereof) was a contributing factor in the adverse action.
The burden may be satisfied, for example, if the complaint shows that
the adverse action took place shortly after the protected activity, or
at the first opportunity available to the 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. 1982.105, if OSHA has reasonable cause, on the
basis of information gathered under the procedures of this part, to
believe that the respondent has violated NTSSA or FRSA and that
preliminary reinstatement is warranted, OSHA will contact the
respondent (or the respondent's legal counsel if respondent is
represented by counsel) to give notice of the substance of the relevant
evidence supporting the complainant's allegations as developed during
the course of the investigation. This evidence includes any witness
statements, which will be redacted to protect the identity of
confidential informants where statements were given in confidence; if
the statements cannot be redacted without revealing the identity of
confidential informants, summaries of their contents will be provided.
The complainant will also receive a copy of the materials that must be
provided to the respondent under this paragraph. Before providing such
materials, OSHA will redact them, if necessary, consistent with the
Privacy Act of 1974, 5 U.S.C. 552a, and other applicable
confidentiality laws. The respondent will be given the opportunity to
submit a written response, to meet with the investigators, to present
statements from witnesses in support of its position, and to present
legal and factual arguments. The respondent must present this evidence
within 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. 1982.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of filing of the complaint, written findings as to whether or not there
is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of NTSSA or FRSA.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief
to the complainant. The preliminary order will include, where
appropriate: Affirmative action to abate the violation; reinstatement
with the same seniority status that the employee would have had, but
for the retaliation; any back pay with interest; and payment of
compensatory damages, including 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
documentation to the Social Security Administration or the Railroad
Retirement Board, as appropriate, allocating any back pay award to the
appropriate months or calendar quarters. The preliminary order may also
require the respondent to pay punitive damages up to $250,000.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings and, where appropriate, the preliminary order will
be sent by certified mail, return receipt requested, to all parties of
record (and each party's legal counsel if the party is represented by
counsel). The findings and, where appropriate, the preliminary order
will inform the parties of the right to object to the findings and/or
order and to request a hearing, and of the right of the respondent
under NTSSA to request award of attorney fees not exceeding $1,000 from
the administrative law judge (ALJ) regardless of whether the respondent
has filed objections, if the respondent alleges that the complaint was
frivolous or brought in bad faith. 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 a hearing has been timely filed as provided at
Sec. 1982.106. However, the portion of any preliminary order requiring
reinstatement will be effective immediately upon the respondent's
receipt of the findings and of the preliminary order, regardless of any
objections to the findings and/or the order.
Subpart B--Litigation
Sec. 1982.106 Objections to the findings and the preliminary order
and requests for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and preliminary order, or a respondent alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney fees under NTSSA, must file any objections and/or a request
for a hearing on the record within 30 days of receipt of the findings
and preliminary order pursuant to Sec. 1982.105. The objections,
request for a hearing, and/or request for attorney fees must be in
writing and state whether the objections are to the findings, the
preliminary order, and/or whether there should be an award of attorney
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 and/or the preliminary order, the findings or preliminary
order will become the final decision of the Secretary, not subject to
judicial review.
Sec. 1982.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure 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. Administrative Law
Judges 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. 1982.108 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 Department of Homeland Security or the Department of
Transportation, if interested in a proceeding, may participate as
amicus curiae at any time in the proceeding, at those agencies'
discretion. At the request of the interested federal agency, copies of
all documents in a case must be sent to the federal agency, whether or
not the agency is participating in the proceeding.
Sec. 1982.109 Decision and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that protected activity
was a contributing factor in the adverse action alleged in the
complaint.
(b) If the complainant has satisfied the burden set forth in the
prior paragraph, relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of any protected activity.
(c) Neither OSHA's determination to dismiss a complaint without
completing an investigation pursuant to Sec. 1982.104(e) nor OSHA's
determination to proceed with an investigation is subject to review by
the ALJ, and a complaint may not be remanded for the completion of an
investigation or for additional findings on the basis that a
determination to dismiss was made in error. Rather, if there otherwise
is jurisdiction, the ALJ will hear the case on the merits or dispose of
the matter without a hearing if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will include, where appropriate:
Affirmative action to abate the violation; reinstatement with the same
seniority status that the employee would have had, but for the
retaliation; any back pay with interest; and payment of compensatory
damages, including 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 documentation to the Social Security
Administration or the Railroad Retirement Board, as appropriate,
allocating any back pay award to the appropriate months or calendar
quarters. The order may also require the respondent to pay punitive
damages up to $250,000.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ALJ determines that a complaint filed
under NTSSA was frivolous or was brought in bad faith, the ALJ may
award to the respondent a reasonable attorney fee, not exceeding
$1,000.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. 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), U.S.
Department of Labor. The decision of the ALJ will become the final
order of the Secretary unless a petition for review is timely filed
with the ARB and the ARB accepts the petition for review.
Sec. 1982.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
under NTSSA was frivolous or brought in bad faith who seeks an award of
attorney 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 that order based on
exceptional circumstances. The ARB will specify the terms under which
any briefs are to be filed. The ARB will review the factual
determinations of the ALJ under the substantial evidence standard. If
no timely petition for review is filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not
subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be 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 denied 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 also will be
served on the Assistant Secretary, and on the Associate Solicitor,
Division of Fair Labor Standards, U.S. Department of Labor, even if the
Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing relief to the complainant.
The final order will include, where appropriate: Affirmative action to
abate the violation; reinstatement with the same seniority status that
the employee would have had, but for the retaliation; any back pay with
interest; and payment of compensatory damages, including 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 documentation to the Social Security
Administration or the Railroad Retirement Board, as appropriate,
allocating any back pay award to the appropriate months or calendar
quarters. The order may also require the respondent to pay punitive
damages up to $250,000.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint under
NTSSA was frivolous or was brought in bad faith, the ARB may award to
the respondent reasonable attorney fees, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1982.111 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 (or each party's legal counsel
if the party is represented by counsel) of the approval of any
withdrawal. If the complaint is withdrawn because of settlement, the
settlement must be submitted for approval in accordance with paragraph
(d) of this section. A complainant may not withdraw 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. 1982.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
order become final, a party may withdraw its objections to the
Assistant Secretary's findings and/or order by filing a written
withdrawal with the ALJ. If the case is on review with the ARB, a party
may withdraw its petition for review of an ALJ's decision at any time
before that decision becomes final by filing a written withdrawal with
the ARB. The ALJ or the ARB, as the case may be, will determine whether
to approve the withdrawal of the objections or the petition for review.
If the ALJ approves a request to withdraw objections to the Assistant
Secretary's findings 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 the case may be.
(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. 1982.113.
Sec. 1982.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1982.109 and 1982.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
(b) A final order 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. 1982.113 Judicial enforcement.
(a) Whenever any person has failed to comply with a preliminary
order of reinstatement, or a final order, including one approving a
settlement agreement, issued under NTSSA, the Secretary 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 NTSSA, 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.
(b) Whenever a person has failed to comply with a preliminary order
of reinstatement, or a final order, including one approving a
settlement agreement, issued under FRSA, the Secretary may file a civil
action seeking enforcement of the order in the United States district
court for the district in which the violation was found to have
occurred.
Sec. 1982.114 District court jurisdiction of retaliation complaints.
(a) If there is no final order of the Secretary, 210 days have
passed since the filing of the complaint, and there is no showing that
there has been delay due to the bad faith of the complainant, the
complainant may bring an action at law or equity for de novo review in
the appropriate district court of the United States, which will have
jurisdiction over such an action without regard to the amount in
controversy. At the request of either party, the action shall be tried
by the court with a jury.
(b) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec.
1982.109. An employee prevailing in a proceeding under paragraph (a)
shall be entitled to 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; any
back pay with interest; and payment of compensatory damages, including
compensation for any special damages sustained as a result of the
retaliation, including litigation costs, expert witness fees, and
reasonable attorney fees. The court may also order punitive damages in
an amount not to exceed $250,000.
(c) Within 7 days after filing a complaint in federal court, a
complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending upon where the proceeding is pending, a copy of the
file-stamped complaint. In all cases, a copy of the complaint must also
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. 1982.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three-days notice to all parties, waive any
rule or issue such orders that justice or the administration of NTSSA
or FRSA requires.
[FR Doc. 2015-28040 Filed 11-6-15; 8:45 am]
BILLING CODE 4510-26-P
