[Federal Register Volume 81, Number 179 (Thursday, September 15, 2016)][Rules and Regulations][Pages 63396-63414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21758]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1986
[Docket Number: OSHA-2011-0841]
RIN 1218-AC58
Procedures for the Handling of Retaliation Complaints Under the
Employee Protection Provision of the Seaman's Protection Act, as
Amended
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 (whistleblower) provisions of the Seaman's
Protection Act (SPA or the Act), as amended by section 611 of the Coast
Guard Authorization Act of 2010. On February 6, 2013, the Occupational
Safety and Health Administration (OSHA or the Agency) published an
interim final rule (IFR) for SPA whistleblower complaints in the
Federal Register, requested public comment on the IFR, and the Agency
has considered the comments. This final rule finalizes the procedures
and time frames for the handling of retaliation complaints under SPA,
including procedures and time frames for employee complaints to 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) on
behalf of the Secretary of Labor (Secretary), and judicial review of
the Secretary's final decision. In addition, this final rule provides
the Secretary's interpretation of the term "seaman" and addresses
other interpretive issues raised by SPA.
DATES: This final rule is effective on September 15, 2016.
FOR FURTHER INFORMATION CONTACT: Rob Swick, Directorate of
Whistleblower Protection Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-4624, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email
OSHA.DWPP@dol.gov. This is not a toll-free number. This Federal
Register publication is available in alternative formats: Large print,
electronic file on computer disk (Word Perfect, ASCII, Mates with
Duxbury Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
Congress enacted SPA as section 13 of the Coast Guard Authorization
Act of 1984, Public Law 98-557, 98 Stat. 2860 (1984). SPA protected
seamen from retaliation for reporting a violation of Subtitle II of
Title 46 of the U.S. Code, which governs vessels and seamen, or a
regulation promulgated under that subtitle. S. Rep. No. 98-454, at 11
(1984). Congress passed SPA in response to Donovan v. Texaco, 720 F.2d
825 (5th Cir. 1983), in which the Fifth Circuit held that the
whistleblower provision of the Occupational Safety and Health Act (OSH
Act) did not cover a seaman who had been demoted and discharged from
his position because he reported a possible safety violation to the
U.S. Coast Guard. S. Rep. No. 98-454, at 12 (1984). This original
version of SPA prohibited "[a]n owner, charterer, managing operator,
agent, master, or individual in charge of a vessel" from retaliating
against a seaman "because the seaman in good faith has reported or is
about to report to the Coast Guard that the seaman believes that" a
violation of Subtitle II had occurred. Public Law 98-557, sec. 13(a),
98 Stat. at 2863. It permitted seamen to bring actions in U.S. district
courts seeking relief for alleged retaliation in violation of the Act.
Id. sec. 13(a), 98 Stat. at 2863-64.
In 2002, Congress amended SPA. Section 428 of the Maritime
Transportation Security Act of 2002, Public Law 107-295, 116 Stat. at
2064 (2002), altered both the protections afforded and remedies
permitted by the Act. First, Congress removed the specific list of
actors who were prohibited from retaliating against seamen and replaced
that text with "[a] person." Public Law 107-295, sec. 428(a), 116
Stat. at 2127. Second, Congress expanded the existing description of
protected activity to include reports to "the Coast Guard or other
appropriate Federal agency or department," rather than only to the
Coast Guard, and violations "of a maritime safety law or regulation
prescribed under that law or regulation," rather than only of Subtitle
II and its accompanying regulations. Id. Third, Congress added a second
type of protected activity; a seaman who "refused to perform duties
ordered by the seaman's employer because the seaman has a reasonable
apprehension or expectation that performing such duties would result in
serious injury to the seaman, other seamen, or the public" was granted
protection from retaliation for such a refusal. Id. The new text
clarified that, "[t]o qualify for protection against the seaman's
employer under paragraph (1)(B), the employee must have sought from the
employer, and been unable to obtain, correction of the unsafe
condition." Id. The amended statute further explained that "[T]he
circumstances causing a seaman's apprehension of serious injury under
paragraph (1)(B) must be of such a nature that a reasonable person,
under similar circumstances, would conclude that there is a real danger
of an injury or serious impairment of health resulting from the
performance of duties as ordered by the seaman's employer." Public Law
107-295, sec. 428, 116 Stat. at 2127.
Congress made additional changes to the Act, including those that
led OSHA to initiate this rulemaking, on October 15, 2010. Section 611
of the Coast Guard Authorization Act of 2010, Public Law 111-281, 124
Stat. at 2905 (2010), made further additions to the list of protected
activities under SPA and fundamentally changed the remedies section of
the Act. Section 611 added to subsection (a) the following protected
activities: The seaman testified in a proceeding brought to enforce a
maritime safety law or regulation; the seaman notified, or attempted to
notify, the vessel owner or the Secretary [of the department in which
the Coast Guard is operating \1\] of a work-related personal injury or
work-related illness of a seaman; the seaman cooperated with a safety
investigation by the Secretary [of the department in which the Coast
Guard is operating] or the National Transportation Safety Board; the
seaman furnished information to the Secretary [of the department in
which the Coast Guard is operating], the National Transportation Safety
Board, or any other public official as to the facts relating to any
marine casualty resulting in injury or death to an individual or damage
to property occurring in connection with vessel transportation; and the
seaman accurately reported hours of duty under this part.
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\1\ The text of 46 U.S.C. 2114 refers to "the Secretary,"
defined for purposes of Part A of Subtitle II as "the Secretary of
the department in which the Coast Guard is operating." 46 U.S.C.
2101(34). The Coast Guard is currently part of the Department of
Homeland Security.
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Congress replaced section (b) of SPA, which had provided a private
right of action to seamen and described relief a court could award, in
its entirety. The new text provides that a seaman alleging discharge or
discrimination in violation of subsection (a) of this section, or
another person at the seaman's request, may file a complaint with
respect to such allegation in the same manner as a complaint may be
filed under subsection (b) of section 31105 of title 49. Such complaint is subject
to the procedures, requirements, and rights described in that section,
including with respect to the right to file an objection, the right of
a person to file for a petition for review under subsection (c) of that
section, and the requirement to bring a civil action under subsection
(d) of that section.
Id. Section 31105 of title 49 is the whistleblower protection
provision of the Surface Transportation Assistance Act (STAA), 49
U.S.C. 31105. STAA provides that initial complaints regarding
retaliation under that statute are to be filed with and handled by the
Secretary of Labor (Secretary), sec. 31105(b)-(e), and the Secretary
has delegated his authority in this regard to OSHA. Secretary's Order
1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). The Secretary has
also delegated to OSHA his authority under SPA. Id. at 3913. Hearings
on objections to findings by the Assistant Secretary for OSHA
(Assistant Secretary) are conducted by the Office of Administrative Law
Judges, and appeals from decisions by ALJs are decided by the
Department of Labor's Administrative Review Board (ARB). Secretary's
Order 1-2010, 75 FR 3924-01 (Jan. 25, 2010).
OSHA is promulgating this final rule to finalize procedures for the
handling of whistleblower protection complaints under SPA and address
certain interpretative issues raised by the statute. To the extent
possible within the bounds of applicable statutory language, these
regulations are designed to be consistent with the procedures applied
to claims under STAA, and the other whistleblower protection statutes
administered by OSHA, including the Energy Reorganization Act (ERA), 42
U.S.C. 5851; the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century (AIR21), 49 U.S.C. 42121; Title VIII of the Sarbanes-
Oxley Act of 2002 (SOX), 18 U.S.C. 1514A; and the Consumer Product
Safety Improvement Act, 15 U.S.C. 2087.
II. Summary of Statutory Procedures
As explained above, SPA adopts the process for filing a complaint
established under subsection (b) of STAA. 46 U.S.C. 2114(b). It further
incorporates the other "procedures, requirements, and rights described
in" STAA, id., described below. OSHA therefore understands SPA to
incorporate STAA subsections (b) through (g). SPA's text could cause
confusion regarding which sections of STAA it adopts by referring, in
some cases incorrectly,\2\ to certain sections while not mentioning
others.\3\ The text refers to those sections following the word
"including," however, with no suggestion that the subsequent list is
meant to be exclusive. Accordingly, OSHA will not treat it as such,
and, as explained below, promulgates regulations to implement the
procedures described in 49 U.S.C. 31105(b)-(g). OSHA does not read SPA
as incorporating 49 U.S.C. 31105 (a), (h), (i) and (j) because those
provisions are substantive and specific to STAA or agencies other than
the Department of Labor rather than describing "procedures,
requirements, and rights." The statutory procedures applicable to SPA
claims are summarized below.
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\2\ Specifically, the Act's adoption of STAA's "procedures,
requirements, and rights" is followed by the text "including with
respect to the right to file an objection, the right of a person to
file for a petition for review under subsection (c) of [STAA], and
the requirement to bring a civil action under subsection (d) of that
section." 46 U.S.C. 2114(b). But section (c) addresses de novo
review in the district court if the Secretary has not issued a final
decision after 210 days; section (d) addresses filing a petition for
review after receiving an adverse order following a hearing; and
section (e) provides that "[i]f a person fails to comply with an
order issued under subsection (b) of this section, the Secretary of
Labor shall 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." 49 U.S.C. 31105(c)-(e).
\3\ Section (f) declares that STAA does not preempt any other
federal or state law safeguarding against retaliation; section (g)
declares that STAA does not diminish any legal rights of any
employee, nor may the rights of the section be waived; section (h)
prohibits the disclosure by the Secretary of Transportation or the
Secretary of Homeland Security of the identity of an employee who
provides information about an alleged violation of the statute
except, under certain circumstances, to the Attorney General;
section (i) creates a process for reporting security problems to the
Department of Homeland Security; and section (j) defines the term
"employee" for purposes of STAA. 49 U.S.C. 31105(f)-(j).
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Filing of SPA Complaints
A seaman, or another person at the seaman's request, alleging a
violation of SPA, may file a complaint with the Secretary not later
than 180 days after the alleged retaliation.
Legal Burdens of Proof for SPA Complaints
STAA states that STAA whistleblower complaints will be governed by
the legal burdens of proof set forth in AIR21, 49 U.S.C. 42121(b),
which contains whistleblower protections for employees in the aviation
industry. 49 U.S.C. 31105(b)(1). Accordingly, these burdens of proof
also govern SPA whistleblower complaints.
Under AIR21, a violation may be found only if the complainant
demonstrates that protected activity was a contributing factor in the
adverse action described in the complaint. 49 U.S.C.
42121(b)(2)(B)(iii). Relief is unavailable if the employer demonstrates
by clear and convincing evidence that it would have taken the same
adverse action in the absence of the protected activity. 49 U.S.C.
42121(b)(2)(B)(iv); Vieques Air Link, Inc. v. Dep't of Labor, 437 F.3d
102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under
AIR21); Formella v. U.S. Dep't of Labor, 628 F.3d 381, 389 (7th Cir.
2010) (explaining that because it incorporates the burdens of proof set
forth in AIR21, STAA requires only a showing that the protected
activity was a contributing factor, not a but-for cause, of the adverse
action.).
Written Notice of Complaint and Findings
Under 49 U.S.C. 31105(b), upon receipt of the complaint, the
Secretary must provide written notice of the filing of the complaint to
the person or persons alleged in the complaint to have violated the Act
(respondent). 49 U.S.C. 31105(b).
Within 60 days of receipt of the complaint, the Secretary must
conduct an investigation of the allegations, decide whether it is
reasonable to believe the complaint has merit, and provide written
notification to the complainant and the respondent of the investigative
findings.
Remedies
If the Secretary decides it is reasonable to believe a violation
occurred, the Secretary shall include with the findings a preliminary
order for the relief provided for under 49 U.S.C. 31105(b)(3). This
order shall require the respondent to take affirmative action to abate
the violation; reinstate the complainant to the former position with
the same pay and terms and privileges of employment; and pay
compensatory damages, including back pay with interest and compensation
for any special damages sustained as a result of the discrimination,
including litigation costs, expert witness fees, and reasonable
attorney fees. Additionally, if the Secretary issues a preliminary
order and the complainant so requests, the Secretary may assess against
the respondent the costs, including attorney fees, reasonably incurred
by the complainant in bringing the complaint. Punitive damages of up to
$250,000.00 are also available.
Hearings
STAA also provides for hearings. 49 U.S.C. 31105(b), Specifically,
the complainant and the respondent have 30 days after the date of the Secretary's
notification in which to file objections to the findings and/or preliminary
order and request a hearing. The filing of objections does not stay a
reinstatement ordered in the preliminary order. If a hearing is not
requested within 30 days, the preliminary order becomes final and is not
subject to judicial review.
If a hearing is held, it is to be conducted expeditiously. The
Secretary shall issue a final order within 120 days after the
conclusion of any hearing. The final order may provide appropriate
relief or deny the complaint. Until the Secretary's final order is
issued, the Secretary, the complainant, and the respondent may enter
into a settlement agreement that terminates the proceeding.
De Novo Review
STAA provides for de novo review of a whistleblower claim by a
United States district court in the event that the Secretary has not
issued a final decision within 210 days after the filing of a complaint
and the delay is not due to the complainant's bad faith. 49 U.S.C.
31105(c). The provision states that the court will have jurisdiction
over the action without regard to the amount in controversy and that
the case will be tried before a jury at the request of either party.
Judicial Review
STAA provides that within 60 days of the issuance of the
Secretary's final order following a hearing, 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. 49 U.S.C. 31105(d).
Civil Actions To Enforce
STAA provides that if a person fails to comply with an order issued
by the Secretary under 49 U.S.C. 31105(b) the Secretary of Labor
"shall 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." 49 U.S.C. 31105(e).
Preemption
STAA clarifies that nothing in the statute preempts or diminishes
any other safeguards against discrimination provided by Federal or
State law. 49 U.S.C. 31105(f).
Employee Rights
STAA states that nothing in STAA shall be deemed to diminish the
rights, privileges, or remedies of any employee under any Federal or
State law or under any collective bargaining agreement. 49 U.S.C.
31105(g). It further states that rights and remedies under 49 U.S.C.
31105 "may not be waived by any agreement, policy, form, or condition
of employment."
III. Prior Rulemaking
On February 6, 2013, the OSHA published an IFR for SPA
whistleblower complaints in the Federal Register establishing the
procedures and time frames for the handling of retaliation complaints
under SPA, including procedures and time frames for employee complaints
to OSHA, investigations by OSHA, objections to OSHA findings and
preliminary orders, hearings by ALJs, review of ALJ decisions by the
ARB on behalf of the Secretary, and judicial review of the Secretary's
final decision. In addition to promulgating the IFR, OSHA's notice
included a request for public comment on the interim rules by April 8,
2013. In response to the IFR, two organizations--the Chamber of
Shipping of America and the Transportation Trades Department, AFL-CIO,
filed comments with the agency within the public comment period. In
addition, two individuals--J.I.M. Choate of Stamford, Connecticut, and
Lee Luttrell of Las Vegas, Nevada, also filed comments with the agency
within the public comment period. In general, commenters supported the
IFR's provisions. For example, the Transportation Trades Department
stated that the IFR provided "clarity to workers on the actions they
can take to remedy dangerous situations, while empowering them with a
well-defined route to pursue when they've been wronged." It also
expressed support for the protection of internal complaints. Docket ID
OSHA-2011-0841-0005. Only three revisions to the rule were suggested by
commenters. First, Mr. Choate recommended that references in the rule
to "ALJs" be changed to "judges" because he thought that "ALJ"
was "too informal." Docket ID OSHA-2011-0841-0002. However, OSHA's
use of the term "ALJ" appears in many of its other whistleblower
protection regulations and is useful in distinguishing between
administrative law judges and Article III judges. The Secretary
therefore declines to follow this suggestion. Second, the Chamber asked
the Secretary to adopt a limited exemption from the work refusal
provision in section 1986.102(c)(2) for emergency situations. Third,
the Chamber asks that the remedies provisions of sections 1986.109 and
1986.110 include provisions allowing the award of attorney's fees and
costs against unsuccessful claimants. Docket ID OSHA-2011-0841-0004.
The Secretary also disagrees with these suggestions, which will be
discussed further below. Thus, with the exception of coverage
provisions, discussed below, the Secretary is carrying over all of the
provisions of the IFR into this final rule with only minor technical
revisions.
IV. Summary and Discussion of Regulatory Provisions
Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Section 1986.100 Purpose and Scope
This section describes the purpose of the regulations implementing
the SPA whistleblower protection provision and provides an overview of
the procedures contained in the regulations.
Section 1986.101 Definitions
This section includes general definitions applicable to the SPA
whistleblower provision. Most of the definitions are of terms common to
whistleblower statutes and are defined here as they are elsewhere. Some
terms call for additional explanation.
SPA prohibits retaliation by a "person." Title 1 of the U.S. Code
provides the definition of this term because there is no indication in
the statute that any other meaning applies. Accordingly, "person...
include[s] corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals." 1
U.S.C. 1. This list, as indicated by the word "include," is not
exhaustive. See Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100
(1941) ("[T]he term 'including' is not one of all embracing
definition, but connotes simply an illustrative application of the
general principle." (citation omitted)). Paragraph (j) accordingly
defines "person" as "one or more individuals or other entities,
including but not limited to corporations, companies, associations,
firms, partnerships, societies, and joint stock companies."
SPA protects seamen from retaliation for making certain reports and
notifications. 46 U.S.C. 2114(a)(1)(A), (D), (G). Paragraphs (h) and
(k) define "report" and "notify" both to include "any oral or
written communications of a violation." This interpretation of the
statute is consistent with a plain reading of the statutory text and
best fulfills the purposes of SPA. See Gaffney v. Riverboat Servs. of
Ind., 451 F.3d 424, 445-46 (7th Cir. 2006) (explaining that to
interpret SPA's reference to a "report" as requiring a formal
complaint "would narrow the statute in a manner that Congress clearly
avoided, and, in the process, would frustrate the clear purpose of the
provision"). It is also consistent with the legislative history of the
statute, which indicates that Congress meant SPA to respond to Donovan
v. Texaco, 720 F.2d 825 (5th Cir. 1983), a case in which a seaman had
told the Coast Guard about an unsafe condition by telephone. S. Rep.
No. 98-454, at 11; Donovan, 720 F.2d at 825; see also Gaffney, 451 F.3d
at 446 (reasoning that SPA's legislative history, "coupled with
Congress' decision not to define 'report' in the statute or in the
course of discussing Donovan in the relevant legislative history,"
indicates that SPA "does not require a formal complaint, or even a
written statement, as a prerequisite to statutory whistleblower
protection"); cf. Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1 (2011) (holding that the provision of the Fair Labor
Standards Act that prohibits employers from retaliating against an
employee because such employee has "filed any complaint" protects
oral complaints).
In addition, SPA protects seaman complaints and testimony related
to "maritime safety law[s] or regulation[s]." Paragraph (g) defines
this term as including "any statute or regulation regarding health or
safety that applies to any person or equipment on a vessel." This
definition clarifies the meaning of this term in two respects. First,
though the statutory text refers to "safety" the Secretary finds that
Congress did not intend to exclude regulations that address health
hazards; rather, it is apparent that no such distinction was intended.
Compare 46 U.S.C. 2114(a)(1)(B) (protecting refusal to perform a duty
that would result in a serious injury) with (a)(2) (clarifying that
circumstances that would justify a refusal to work under (a)(1)(B) are
those that present a "real danger of injury or serious impairment of
health"); see also id. (a)(1)(D) (protecting reports of injuries and
illnesses). The definition makes clear that laws or regulations
addressing either maritime safety or health are included.
Second, because working conditions on vessels can be subject to
regulation by many agencies, the Secretary interprets "maritime safety
law or regulation" to include all regulations regarding health or
safety that apply to any person or equipment on a vessel under the
circumstances at issue. The statute or regulation need not exclusively
or explicitly serve the purpose of protecting the safety of seamen, or
promoting safety on vessels, to fall within the meaning of this
provision of SPA.
Section 2214(a)(1)(D) of SPA protects a seaman's notification of
the "vessel owner" of injuries and illnesses. This would include all
notifications to agents of the owner, such as the vessel's master. 2
Robert Force & Martin J. Norris, The Law of Seamen Sec. 25-1 (5th ed.
2003). Other parties that may fall within the meaning of "vessel
owner" include an owner pro hac vice, operator, or charter or bare
boat charterer. 33 U.S.C. 902(21) (defining, for purposes of the
Longshore and Harbor Workers' Compensation Act (LHWCA), the entities
liable for negligence of a vessel); Helaire v. Mobil Oil Co., 709 F.2d
1031, 1041 (5th Cir. 1983) (referring to this list of entities as "the
broad definition of 'vessel owner' under 33 U.S.C. 902(21)").
Paragraph (q) defines "vessel owner" as including "all of the agents
of the owner, including the vessel's master."
SPA protects "a seaman" from retaliation, but it does not include
a definition of "seaman." Thus, OSHA is relying on the Senate Report
that accompanied the original, 1984 version of SPA. Committee Reports
on a bill are useful sources for finding the legislature's intent
because they represent the considered and collective understanding of
those Members of Congress involved in drafting and studying proposed
legislation. Garcia v. United States, 469 U.S. 70, 76 (1984). The
Senate Report indicates that SPA was originally intended to provide a
remedy for workers whose whistleblower rights under section 11(c) of
the OSH Act might be not be available in a circuit that follows Donovan
v. Texaco, 720 F.2d 825 (5th Cir. 1983).\4\ See S. Rep. No. 98-454, at
11-12 (1984). The Senate Report also provides specific insight as to
the definition of "seaman," stating that "the Committee intends the
term 'seaman' to be interpreted broadly, to include any individual
engaged or employed in any capacity on board a vessel owned by a
citizen of the United States." Id. at 11.
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\4\ Nothing in this preamble should be read to suggest that OSHA
agrees with the holding or rationale of Texaco.
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OSHA considered three basic approaches for defining the term
"seaman": (a) Mirroring the one established by the Jones Act, 46
U.S.C. 30104, which reflects general maritime law; (b) as a "gap
filler" available only in situations where workers arguably lack
protection under section 11(c) of the OSH Act because of Texaco; or (c)
using the broader definition of "seaman" suggested by the legislative
history of SPA discussed above.
First, OSHA rejected adopting a definition of "seaman" for SPA
that mirrors the one established by case law under the Jones Act. The
Jones Act provides that a "seaman" injured in the course of
employment may bring a civil action against his or her employer, 46
U.S.C. 30104, but, like SPA, the Jones Act does not define the term
"seaman." Looking to general maritime law, the Supreme Court has
defined the term as including those who have an employment-related
connection to a vessel in navigation that contributes to the function
of the vessel or to the accomplishment of its mission, even if the
employment does not aid in navigation or contribute to the
transportation of the vessel, McDermott International, Inc. v.
Wilander, 498 U.S. 337, 355 (1991). Importantly, the Supreme Court
views the term "seaman" as excluding land-based workers; that is, a
seaman "must have a connection to a vessel in navigation (or to an
identifiable group of such vessels) that is substantial in terms of
both its duration and nature." Chandris v. Latsis, 515 U.S. 347, 368
(1995).
OSHA is concerned that the Jones Act definition of "seaman" is
more restrictive than the definition of the term reflected in the
legislative history of the SPA. Were OSHA to adopt the Jones Act
definition here, certain workers who are employed on vessels in
significant ways, but who are not "seamen" for purposes of the Jones
Act, would not be protected. For example, certain riverboat pilots
spend substantial time aboard a vessel in furtherance of its purpose,
but do not have a connection to a particular vessel or group of
vessels, so they have been found not to be covered under the Jones Act.
Bach v. Trident Steamship Co., Inc., 920 F.2d 322, aff'd after remand,
947 F.2d 1290 (5th Cir. 1991); Blancq v. Hapag-Lloyd A.G., 986 F. Supp.
376, 379 (E.D. La. 1997). Moreover, there is at least a possibility
that under the Texaco analysis, a court would find that such pilots
also lack section 11(c) rights when reporting safety violations aboard
vessels on which they are working.
Second, OSHA rejected the approach of defining "seaman" as
applying only to workers who arguably are not covered by section 11(c).
The legislative history shows that Congress originally passed the SPA
in response to Texaco: "This section responds to Donovan v. Texaco,
(720 F.2d 825 5th Cir. 1983)) in which a seaman was demoted and
ultimately discharged from his job for reporting a possible safety
violation to the Coast Guard... [This section] establishes a
new legal remedy for seamen, to protect them against discriminatory
action due to their reporting a violation of Subtitle II to the Coast
Guard. The Amendment creates a private right of action similar but not
identical to that in OSH Act section 11(c)." S. Rep. No. 98-454, at
11-12 (1984). But the legislative history in 2010 suggests a broader
definition for "seaman," which includes workers who may also be
covered by section 11(c). On a more practical level, OSHA could not
fashion a clear definition of "seaman" that squarely fills the gap
arguably left by Texaco without requiring agency investigators to
conduct a complex case-by-case analysis of whether each SPA complainant
is exempt from the OSH Act under the rationale of Texaco, a holding
with which the Department does not agree.
Thus, the final rule adopts the third option--the broader
definition of "seaman" as clarified in the legislative history of
SPA. The first sentence of paragraph (m) incorporates the language of
the Senate report to define "seaman" insofar as the term includes
"any individual engage or employed in any capacity on board" certain
types of vessels. As indicated in the report, and consistent with the
remedial purposes of whistleblower protection statutes like SPA, OSHA
intends that the regulatory language be construed broadly. Whirlpool
Corporation v. Marshall, 445 U.S. 1, 13 (1980); Bechtel Const. Co. v
Sec'y of Labor, 50 F.3d 926, 932 (11th Cir. 1995). Workers who are
seamen for purposes of the Jones Act or general maritime law, see,
e.g., Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995), are covered
by the definition, as are land-based workers, if they are "engaged or
employed... on board a vessel" for some part of their duties. H.
Rep. No. 111-303, pt. 1, at 119 (2009) (noting that SPA extends
protections to "maritime workers").
Finally, paragraph (m) includes an additional sentence indicating
that former seamen and applicants are included in the definition. Such
language is included in the definition of "employee" in the
regulations governing other OSHA-administered whistleblower protection
laws, such as STAA (29 CFR 1978.101(h)), the National Transit Systems
Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)),
SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This
interpretation is consistent with the Supreme Court's reading of the
term "employee" in 42 U.S.C. 2000e-3a, the anti-retaliation provision
of Title VII of the Civil Rights Act of 1964, to include former
employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among the
Court's reasons for this interpretation was the lack of temporal
modifiers for the term "employee"; the reinstatement remedy, which
only applies to former employees; and the remedial purpose of
preventing workers from being deterred from whistleblowing because of a
fear of blacklisting. These reasons apply equally to SPA and the other
whistleblower provisions enforced by OSHA.
In the IFR, OSHA sought comments on these alternative approaches to
defining "seaman," and received no objections to the approach
described above. OSHA has retained the portion of the definition
dealing with the functions of a seaman in the final rule. The
definition of "seaman" adopted in these regulations is based on and
limited to SPA. Nothing should be inferred from the above discussion or
the regulatory text about the meaning of "seaman" under the OSH Act
or any other statute administered by the Department of Labor.
Part of the definition of "seaman" in the final rule, however,
has changed from that of the IFR. As in the IFR, the definition of
"seaman" limits the term to individuals "engaged or employed on
board" a subset of vessels. Both the IFR and the final rule protect
individuals working on "any vessel owned by a citizen of the United
States," but the final rule also extends coverage to individuals
engaged on "a U.S. flag vessel." Because all U.S.-flag vessels must
be owned by citizens of the United States, as defined in 46 U.S.C.
12103 (providing general eligibility requirements for vessel
documentation) and 46 CFR part 67 Subpart C (defining citizen-owners of
vessels for the purposes of Coast Guard regulations), covering all
individuals employed or engaged on U.S.-flag vessels would effectuate
the Congressional intent that individuals working on any vessel owned
by a citizen of the United States be regarded as seamen under SPA. S.
Rep., at 11. Furthermore, since most U.S.-flag vessels are required to
comply with many Coast Guard maritime safety regulations, such as those
in 46 CFR Chapter I, Subchapter I (see 46 CFR 90.05-1) (inspected
vessels), 46 CFR Chapter I, Subchapter C, Part 24 (see 46 CFR 24.05-
1(a) (uninspected vessels), and 46 CFR Chapter I, Subchapter C, Part 28
(see 46 CFR 28.30(a)) (uninspected commercial fishing industry
vessels), covering those who work aboard U.S.-flag vessels will
effectuate one of the main purposes of SPA--to encourage the reporting
of violations of maritime safety regulations. 46 U.S.C. 2114(a)(1)(A).
Moreover, determining whether a vessel is a U.S.-flag vessel is easy
for those who work aboard vessels, as well as for OSHA investigators.
Also, members of the Armed Forces are not covered under SPA in order
not to interfere with military necessities. As noted above, OSHA has
retained within the final rule's definition of "seaman," individuals
working on vessels owned by "a citizen of the United States." This
part of the definition is still relevant because it provides coverage
to employees of foreign-flagged vessels owned by U.S. citizens.
As in the IFR, the final rule defines the term "Citizen of the
United States," but OSHA has changed that definition. The IFR defined
"citizen of the United States" in 29 CFR 1986.101(d) (2013) as an
individual who is a national of the United States as defined in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)), The IFR also defined the phrase to include a corporation,
partnership, association, or other business entity if the controlling
interest is owned by citizens of the United States. The controlling
interest in a corporation is owned by citizens of the United States if
title to the majority of the stock in the corporation is vested in
citizens of the United States, the majority of the voting power in the
corporation is vested in citizens of the United States, there is no
contract or understanding by which the majority of the voting power in
the corporation may be exercised, directly or in directly, on behalf of
a person not a citizen of the United States, and there is no other
means by which control of the corporation is given to or permitted to
be exercised by a person not a citizen of the United States.. The
definition also stated that a corporation is only a citizen of the
United States if it is incorporated under the laws of the United States
or a State, its chief executive officer, by whatever title, and the
chairman of its board of directors are citizens of the United States,
and no more of its directors are non-citizens than a minority of the
number necessary to constitute a quorum.
OSHA is retaining the portion of that definition dealing with the
criteria for an individual to be a United States citizen for the
purposes of SPA. As before, a natural person is a "citizen of the
United States" if he or she is a U.S. citizen for purposes of the
Immigration and Nationality Act--the test used to determine U.S.
citizenship for natural persons in 46 U.S.C. 104, which applies to all
of Title 46 of the United States Code on shipping. OSHA is also
retaining the requirement that the controlling interest of a
corporation, partnership, association, or other business entity interest
be owned by citizens of the United States, but, after further evaluation
of relevant statutory provisions and case law, OSHA has decided to
substantially simplify the description of what it means for U.S.
citizens to own a "controlling interest" in a corporation,
partnership, association, or other business entity. The lengthy
provisions of the IFR setting forth these criteria have been replaced
with a straightforward explanation that the controlling interest in a
corporation is owned by citizens of the United States if a majority of
the stockholders are citizens of the United States.
Finally, OSHA has expressly included corporations "incorporated
under the laws of the United States or a State," any corporation,
partnership, association, or other business entity "whose principal
place of business or base of operations is in a State," and federal
and state governmental entities within definition of "Citizen of the
United States."
OSHA decided to make these changes for a number of reasons. First,
the IFR definition of "Citizen of United States" with respect to
corporate and other juridical entities was derived from a subtitle of
Title 46 of the United States Code, which is not as closely related to
the purposes of SPA as the subtitle in which SPA is located. The
language of the IFR specifying what connections a corporation must have
with the United States in order to be classified as a "Citizen of the
United States" was derived from 46 U.S.C. 50501. That provision
specifies which corporations and other entities are deemed to be
citizens of the United States for the purposes of Subtitle V of Title
46. That subtitle promotes the development of the U.S. merchant marine
through financial assistance and promotional programs, among other
things. SPA, however, is in Subtitle II, Vessels and Seamen, which has
a major emphasis on maritime safety. See, e.g., Part A--General
Provisions (including a provision on penalties for the negligent
operation of vessels (46 U.S.C. 2302) and SPA (46 U.S.C. 2114); Part
B--Inspection and Regulation of Vessels, including the provisions
authorizing many Coast Guard maritime safety regulations, such as 46
U.S.C. 3306 (inspected vessels), 46 U.S.C. 4102 (uninspected vessels),
and 46 U.S.C. 4502 (uninspected commercial fishing industry vessels)).
Subtitle II also has provisions on the documentation of U.S. flag
vessels, including the criteria for U.S. citizen ownership of vessels.
46 U.S.C. 12103. One of the main purposes of SPA is to encourage the
reporting of violations of Coast Guard maritime safety regulations. 46
U.S.C. 2114(a)(1)(A) (prohibiting retaliation against a seaman for
reporting a violation of maritime safety regulations). Thus, the
provisions regarding U.S. citizen ownership of vessels in 46 U.S.C.
50501, which is in Subtitle V, are not appropriate in this context.
Second, the IFR's criteria for determining if a corporation,
partnership, association, or other business entity is a U.S. citizen
were unduly restrictive and thus did not effectuate the Congressional
intent that the term "seaman" in SPA be construed broadly. S. Rep. at
11. As can be seen from the IFR text above, ownership by a U.S. citizen
of a controlling interest in the corporation was the sole basis for
that corporation's U.S. citizenship, and ownership of a controlling
interest was, itself, defined narrowly. The vesting of title to the
majority of the corporation's stock in U.S. citizens had to be free of
any trust or fiduciary obligation in favor of a foreign citizen, a
majority of the voting power had to be vested in U.S. citizens; there
could be no contract or understanding by which a majority of the voting
power in the corporation could have been exercised, directly or
indirectly, on behalf of a foreign citizen; and there could be no other
means by which control of the corporation was given to or permitted to
be exercised by a foreign citizen. Furthermore, the IFR provided that
the corporation had to be incorporated under the laws of the United
States or a State; its chief executive officer, by whatever title, and
the chairman of its board of directors had to be citizens of the United
States; and no more of its directors could be noncitizens than a
minority of the number necessary to constitute a quorum. These
qualifications unnecessarily narrowed the scope of the term "seaman"
in contradiction to the Senate Report, which stated that the term
"seaman" should be read broadly. S. Rep. at 11.
Third, because the test of U.S. citizenship for corporations,
partnerships, associations, or other business entities turned on the
criteria for ownership of a controlling interest of these entities,
most of the definition was complex. Determining whether the criteria
had been met would have been difficult and time-consuming for workers
aboard vessels who may want to report violations of maritime safety
laws or injuries or who want to refuse to perform dangerous work, for
OSHA whistleblower investigators, and even for supervisors aboard the
vessels.
Finally, OSHA decided to expressly include corporations
incorporated under the laws of the United States or any State and
corporations, partnerships, associations, and other business entities,
whose principal places of business or bases of operations are in States
within the definition of "Citizen of the United States" because
entities such as these have long been considered by courts to be U.S.
citizens in the maritime context.
In Lauritzen v. Larsen, 345 U.S. 571 (1953), a leading maritime law
decision, the Supreme Court set forth a multifactor test for
determining whether United States law applied to a maritime tort claim.
One of the most important factors is the citizenship of the defendant
shipowner, Id. at 587. In reviewing this factor the Court cited with
approval Gerradin v. United States, 60 F.2d 927 (2nd Cir.), in which
the court regarded a vessel owner incorporated in New York as a citizen
of the United States and imposed liability for a maritime injury to a
cook's mate aboard that vessel, despite the fact that the vessel flew a
foreign flag. Lauritzen, 345 U.S. at 587, n.24; see also Farmer v.
Standard Dredging Corp., 167 F. Supp. 381, 383-84 (D. Delaware 1958)
(applying United States law to maritime injury because shipowner was a
Delaware corporation); cf., 28 U.S.C. 1332(c)(1) (providing that for
the purposes of federal court diversity jurisdiction, a corporation is
citizen of state in which it is incorporated). Since SPA bans
retaliation for the reporting of maritime injuries, see 46 U.S.C.
2114(a)(1)(D) and (F), and other related activities, such as the
reporting of violations of maritime safety regulations, designed to
prevent injuries, see 46 U.S.C. 2114(a)(1)(A), it is appropriate to
look to a maritime case such as Lauritzen for guidance.
A corporation, partnership, association, or other business entity
will also be regarded as a citizen of the United States if its
principal place of business or base of operations is in a State. The
location of a shipowner's principal place of business or base of
operations in the United States is an important factor in favor of
applying U.S. maritime law. Hellenic Lines Limited v. Rhoditis, 398
U.S. 306, 308-309 (1970) (applying U.S. law to claims by a permanent
resident alien seaman aboard foreign-flag vessel where base of
operations of defendant corporate shipowner was in the United States);
cf. 28 U.S.C. 1332(c) (providing that for the purposes of federal court
diversity jurisdiction, a corporation is citizen of State in which its
principal place of business is located).
As discussed above, the test for determining if a U.S. citizen
"owns a controlling interest" in the corporation has been simplified
to include situations in which a majority of the corporation's
stockholders are U.S. citizens. This interpretation is based on
decisions analyzing the Lauritzen factors, which have relied on U.S,
citizen stockholder ownership of a foreign corporation to apply U.S.
law in maritime cases where the vessel was owned by a foreign
corporation. Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1032 (5th Cir.
1984); Antypas v. Cia. Maritima San Basilio, S. A., 541 F.2d 307, 310
(2nd Cir. 1976); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473
(2nd Cir. 1974); Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024,
1026-1027 (2nd Cir. 1973); Bartholomew v. Universe Tankships, 263 F.2d
437, 442 (2nd Cir. 1959).
The term "Citizen of the United States" is also defined to
include governmental entities "of the Federal Government of the United
States, of a State, or of a political subdivision of State." This
interpretation is based on one of the Coast Guard's definitions of
citizenship for the purposes of determining eligibility for vessel
documentation. See 46 CFR 67.41 (providing that a governmental entity
is citizen for purposes of vessel documentation); 46 CFR 67.3 (defining
the term "State" to include a political subdivision thereof); cf. 46
U.S.C. 31102 (providing that a civil action in personam in admiralty
may be brought against the United States for damages caused by a public
vessel of the United States).
Paragraph (p) defines "vessel," a term used in the definition of
"seaman" and in SPA itself. This definition is taken from Title 46 of
the U.S. Code and "includes every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of
transportation on water." 46 U.S.C. 115; see also 1 U.S.C. 3; Stewart
v. Dutra Constr. Co., 543 U.S. 481, 496-97 (2005) (analyzing the
meaning of the term "vessel," as defined by 1 U.S.C. 3, and
concluding that "a 'vessel' is a watercraft practically capable of
maritime transportation, regardless of its primary purpose or state of
transit at a particular moment," and thus excludes ships "taken out
of service, permanently anchored, or otherwise rendered practically
incapable of maritime transport").
Section 1986.102 Obligations and Prohibited Acts
This section describes the activities that are protected under SPA
and the conduct that is prohibited in response to any protected
activities. These protected activities are set out in the statute, as
described above. Consistent with OSHA's interpretation of other anti-
retaliation provisions, the prohibited conduct includes any form of
retaliation, including, but not limited to, discharging, demoting,
suspending, harassing, intimidating, threatening, restraining,
coercing, blacklisting, or disciplining a seaman. Section 1986.102
tracks the language of the statute in defining the categories of
protected activity.
As with other whistleblower statutes, SPA's provisions describing
protected activity are to be read broadly. See, e.g., Clean Harbors
Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 20-21 (1st Cir. 1998)
(expansively construing language in STAA to facilitate achieving the
policy goals of encouraging corporate compliance with safety laws and
employee reports of violations of those laws); Bechtel Constr. Co. v.
Sec'y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) ("[I]t is
appropriate to give a broad construction to remedial statutes such as
nondiscrimination provisions in federal labor laws."); Passaic Valley
Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 478 (3d Cir.
1993) (discussing the "broad remedial purpose" of the whistleblower
provision in the Clean Water Act in expansively interpreting a term in
that statute). Indeed, SPA's prohibition of discharging or "in any
manner" discriminating against seamen indicates Congress's intent that
the provision have broad application. See NLRB v. Scrivener, 405 U.S.
117, 122 (1972) (determining that language in the National Labor
Relations Act should be read broadly because "the presence of the
preceding words 'to discharge or otherwise discriminate' reveals, we
think, particularly by the word 'otherwise,' an intent on the part of
Congress to afford broad rather than narrow protection to the
employee"); Phillips v. Interior Board of Mine Operations Appeals, 500
F.2d 772, 782-83 (D.C. Cir. 1974) (relying on Scrivener in reasoning
that the words "in any other way discriminate" in the Mine Safety Act
support a broad reading of that Act's protections for miners).
Likewise, the statement in the Senate Report regarding SPA that the
term "seaman" is to be "interpreted broadly" further supports the
premise that Congress did not intend that SPA be construed narrowly. S.
Rep. No. 98-454, at 11 (1984).
OSHA therefore will interpret each of the seven types of protected
activity listed in the Act broadly. Moreover, while SPA, unlike other
whistleblower statutes, does not contain a provision directly
protecting all internal complaints by seamen to their superiors, many
such complaints are covered under the seven specific categories listed
in the Act. Protection of internal complaints is important because it
"leverage[s] the government's limited enforcement resources" by
encouraging employees to report substandard working conditions to their
employers. Clean Harbors, 146 F.3d at 19-20. Such protections promote
the resolution of violations without drawn-out litigation, and the
"failure to protect internal complaints may have the perverse result
of encouraging employers to fire employees who believe they have been
treated illegally before they file a formal complaint." Minor v.
Bostwick Laboratories, Inc., 669 F.3d 428, 437 (4th Cir. 2012). The
Transportation Trades Department, AFL-CIO, supported this approach in
its comment, noting that "internal communication aids in keeping
vessels safe." Docket ID OSHA-2011-0841-0005. In addition, in the
maritime context, a seaman on a vessel at sea may not be able to
contact the authorities to correct a dangerous condition, and his or
her only recourse will be to seek correction from the ship's officers.
Because internal complaints are an important part of keeping a
workplace safe, OSHA will give a broad construction to the Act's
language to ensure that internal complaints are protected as fully as
possible.
The statute first prohibits retaliation because "the seaman in
good faith has reported or is about to report to the Coast Guard or
other appropriate Federal agency or department that the seaman believes
that a violation of a maritime safety law or regulation prescribed
under that law or regulation has occurred." 46 U.S.C. 2114(a)(1)(A).
One way an employer will know that a seaman "is about to report" the
violation is when the seaman has made an internal complaint and there
are circumstances from which a reasonable person would understand that
the seaman will likely report the violation to an agency if the
violation is not cured. These circumstances might arise from the
internal report itself (e.g., "I will contact the authorities if it is
not fixed"), the seaman's history of reporting similar violations to
authorities, or other similar considerations. Further, given that a
seaman may be at sea for extended periods without access to ways of
reporting a violation, a significant time may elapse between the time
the employer learns of the seaman's intent to report and the time the
report can actually be made. OSHA will read the phrase "about to
report" broadly to protect the seaman in such a circumstance.
Furthermore, since one of the main purposes of SPA is to promote the
provision of accurate information to government agencies about unsafe
conditions on vessels, OSHA will also read this phrase to protect a
seaman's refusing to lie to an agency about unsafe vessel conditions or
protesting being forced to tell such lies. Cf. Donovan on Behalf of
Anderson v. Stafford Const. Co., 732 F.2d 954, 959-60 (D.C. Cir. 1984)
(employee's telling company officials that she would not lie to Mine
Safety and Health Administration investigators is activity protected by
anti-retaliation provision of Federal Mine Safety and Health Act).
The Act also protects the seaman against discrimination when "the
seaman has refused to perform duties ordered by the seaman's employer
because the seaman has a reasonable apprehension or expectation that
performing such duties would result in serious injury to the seaman,
other seamen, or the public." 46 U.S.C. 2114(a)(1)(B). To qualify for
this protection, the seaman "must have sought from the employer, and
been unable to obtain, correction of the unsafe condition." 46 U.S.C.
2114(a)(3). Although not stated explicitly, in the Secretary's view,
the reasonable implication of the statutory language is that the
seaman's preliminary act of seeking correction of the condition is
itself protected activity. That is, a seaman who asks his or her
employer to correct a condition he or she reasonably believes would
result in serious injury and suffers retaliation because of that
request before the occasion to refuse to perform the unsafe work arises
is protected by the Act. Although the literal terms of the Act could be
read to leave the request for correction required yet unprotected,
courts reject "absurd result[s]." Stone v. Instrumentation Laboratory
Co., 591 F.3d 239, 243 (4th Cir. 2009) ("Courts will not... adopt a
'literal' construction of a statute if such interpretation would thwart
the statute's obvious purpose or lead to an 'absurd result.' "
[quoting Chesapeake Ranch Water Co. v. Board of Comm'rs of Calvert
County, 401 F.3d 274, 280 (4th Cir. 2005)]). The Agency's
interpretation is embodied in the last sentence of section 1986.102(c):
"Any seaman who requests such a correction shall be protected against
retaliation because of the request."
The Chamber of Shipping of America submitted a comment generally
supportive of the right to refuse unsafe work recognized by section
1986.102(c)(2). Every employee, the Chamber agreed, "has not only a
right but a responsibility to report unsafe working conditions to their
supervisor in order that these concerns can be addressed before work
begins." It said that its members have enacted policies which
recognize that "every mariner on board a ship "is a part of the
workplace safety team," and Chamber members "agree that the best
protection against future claims of retaliation is the creation of a
reporting process for employees to use when the have safety concerns
which necessarily must include actions taken by senior officers on
board as well as shore management in response to those concerns."
Docket ID OSHA-2011-0841-0004.
However, while supporting a seaman's the right to refuse unsafe
work (once correction has been sought) in the context of normal
operating conditions of the vessel, the Chamber argued that there
should be no such protection in emergency conditions. For example, the
Chamber noted, heavy weather, a sea rescue, or a shipboard emergency,
such as fire, may jeopardize the ship and all who are aboard her, and
in these situations actions may be necessary that would "give any
reasonable individual a reasonable apprehension of injury even in light
of the advanced training skills possessed by mariners." In these
situations "it is absolutely critical that senior officers managing
the emergency be able to issue orders to mariners and expect them to be
followed in order to execute the necessary and timely response." Thus,
the Chamber suggested amending section 1986.102(c)(2) as follows
(additions italicized):
Refused to perform duties associated with the normal operation
of the vessel, ordered by the seaman's employer because the seaman
has a reasonable apprehension or expectation that performing such
duties would result in serious injury to the seaman, other seamen,
or the public. Prohibited acts do not include duties ordered by the
seaman's employer deemed necessary to protect the lives of the crew
in emergency situations.
Docket ID OSHA-2011-0841-0004.
OSHA recognizes that a ship-owner and its agents must be able to
respond effectively to an emergency that threatens the ship and those
aboard her. However, OSHA has decided against amending the regulation
as suggested by the Chamber. The work refusal provision in the
regulation is taken directly from the statute (sec. 2114(a)(1)(B)), and
there is nothing in the statutory language that explicitly limits the
refusal right in emergencies. Moreover, the language proposed by the
Chamber could shift the balance struck by Congress between the employer
and seaman by giving the employer the ability to chill refusals to work
by interpreting "emergency situations" broadly. Such a result would
be counter to the broad remedial purpose of the statute. Moreover, the
record contains insufficient information from which to shape the
contours of an appropriate rule, and the Secretary is unaware of any
such cases that have arisen under the statute.
Nonetheless, there may be some situations in which it would be
inappropriate to award relief to a seaman who had refused to engage in
lifesaving activities in an emergency situation. It would be
problematic to interpret the statutory work refusal provision in sec.
2114(a)(1)(B)--which is aimed at the safety of seaman--in a way that
might actually directly endanger them. However, the Secretary believes
that these situations will be rare and are better decided on a case-by-
case basis in the context of adjudication rather than through a
categorical rule. Factors to be considered in such situations could
include, but are not necessarily limited to, the nature of the
emergency, the work ordered to be performed, the seaman's training and
duties, and the opportunities that existed to do the work in a safer
way.
SPA provides protection to certain other types of internal
communications. It covers the situation where "the seaman notified, or
attempted to notify, the vessel owner or the Secretary [of the
department in which in Coast Guard is operating] of a work-related
personal injury or work-related illness of a seaman." 46 U.S.C.
2114(a)(1)(D). As noted above, this covers oral, written and electronic
communications to any agent of the vessel's owner. SPA also disallows
retaliation because "the seaman accurately reported hours of duty
under this part." 46 U.S.C. 2114(a)(1)(G). In keeping with the
discussion above, this language too should be interpreted in favor of
broad protection for seamen should a question of its meaning arise.
Finally, consistent with the broad interpretation of the statute as
discussed above, OSHA believes that most reports required by the U.S.
Coast Guard under 46 CFR parts 4.04 and 4.05 are protected by SPA.
Section 1986.103 Filing of Retaliation Complaints
This section describes the process for filing a complaint alleging
retaliation in violation of SPA. The procedures described are
consistent with those governing complaints under STAA as well as other
whistleblower statutes OSHA administers.
Under paragraph (a), complaints may be filed by a seaman or, with
the seaman's consent, by any person on the seaman's behalf. Paragraph
(b) provides that complaints filed under SPA 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. Paragraph (c) explains with whom
in OSHA complaints may be filed.
Paragraph (d) addresses timeliness. To be timely, a complaint must
be filed within 180 days of the occurrence of the alleged violation.
Under Supreme Court precedent, a violation occurs when the retaliatory
decision has been both "made and communicated to" the complainant.
Del. State College v. Ricks, 449 U.S. 250, 258 (1980). In other words,
the limitations period commences once the employee is aware or
reasonably should be aware of the employer's decision. EEOC v. United
Parcel Serv., 249 F.3d 557, 561-62 (6th Cir. 2001). A complaint will be
considered filed on the date of 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. The regulatory text indicates that filing deadlines may be
tolled based on principles developed in applicable case law. Donovan v.
Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir.
1984).
Paragraph (e), which is consistent with provisions implementing
other OSHA whistleblower programs, describes the relationship between
section 11(c) complaints and SPA whistleblower complaints. Section
11(c) of the OSH Act, 29 U.S.C. 660(c), generally prohibits employers
from retaliating against employees for filing safety or health
complaints or otherwise initiating or participating in proceedings
under the OSH Act. Some of the activity protected by SPA, including
maritime safety complaints and work refusals, may also be covered under
section 11(c), though the geographic limits of section 4(a) of the OSH
Act, 29 U.S.C. 653(a), which are applicable to section 11(c), do not
apply to SPA.\5\ Paragraph (e) states that SPA whistleblower complaints
that also allege facts constituting a section 11(c) violation will be
deemed to have been filed under both statutes. Similarly, section 11(c)
complaints that allege facts constituting a violation of SPA will also
be deemed to have been filed under both laws. In these cases, normal
procedures and timeliness requirements under the respective statutes
and regulations will apply.
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\5\ SPA contains no geographic limit; its scope is limited only
by the definition of "seaman."
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OSHA notes that a complaint of retaliation filed with OSHA under
SPA 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). Sylvester v. Parexel Int'l, Inc., 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, the Assistant Secretary 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 1986.104(e). As
explained in section 1986.104(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 49 U.S.C.
42121(b)(2), 29 CFR 1986.104(e).
Section 1986.104 Investigation
This section describes the procedures that apply to the
investigation of complaints under SPA. Paragraph (a) of this section
outlines the procedures for notifying the parties and the U.S. Coast
Guard of the complaint and notifying the respondent of its rights under
these regulations. Paragraph (b) describes the procedures for the
respondent to submit its response to the complaint. Paragraph (c)
explains that the Agency will share respondent's submissions with the
complainant, with redactions in accordance with the Privacy Act of
1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws
as necessary, and will permit the complainant to respond to those
submissions. The Agency expects that sharing information with
complainants will assist it in conducting full and fair investigations
and thoroughly assessing defenses raised by respondents. Paragraph (d)
of this section discusses the confidentiality of information provided
during investigations.
Paragraph (e) sets forth the applicable burdens of proof. As
discussed above, SPA adopts the relevant provisions of STAA, which in
turn adopts the burdens of proof under AIR21. Dady v. Harley Marine
Services, Inc., Nos. 13-076, 13-077, 2015 WL 4674602, at *3 (ARB July
21, 2015), petition filed, (11th Cir. Sept. 14. 2015) (No. 15-14110). A
complainant must make an initial prima facie showing that protected
activity was "a contributing factor" in the adverse action alleged in
the complaint, i.e., that the protected activity, alone or in
combination with other factors, affected in some way the outcome of the
employer's decision. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL
4343278, at *3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09-
114, 2011 WL 2614326, at *3 (ARB June 29, 2011). 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 shortly after protected activity, giving rise
to the inference that it was a contributing factor in the adverse
action.
If the complainant does not make the required prima facie showing,
the investigation must be discontinued and the complaint dismissed.
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the ERA, which is the
same framework now found in STAA and therefore SPA, served a
"gatekeeping function" that "stemm[ed] frivolous complaints"). Even
in cases where the complainant successfully makes a prima facie
showing, the investigation must be discontinued if the employer
demonstrates, by clear and convincing evidence, that it would have
taken the same adverse action in the absence of the protected activity.
Thus, OSHA must dismiss a complaint under SPA and not investigate (or
cease investigating) if either: (1) The complainant fails to meet the
prima facie showing that the protected activity was a contributing
factor in the adverse action; or (2) the employer rebuts that showing
by clear and convincing evidence that it would have taken the same
adverse action absent the protected activity.
Paragraph (f) describes the procedures the Assistant Secretary will
follow prior to the issuance of findings and a preliminary order when
the Assistant Secretary has reasonable cause to believe that a
violation has occurred. Its purpose is to ensure compliance with the
Due Process Clause of the Fifth Amendment, as interpreted by the
Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987)
(requiring OSHA to give a STAA respondent the opportunity to review the
substance of the evidence and respond, prior to ordering preliminary
reinstatement).
Section 1986.105 Issuance of Findings and Preliminary Orders
This section provides that, within 60 days of the filing of a
complaint and on the basis of information obtained in the
investigation, the Assistant Secretary will issue written findings
regarding whether there is reasonable cause to believe that the
complaint has merit. If the Assistant Secretary concludes that there is
reasonable cause to believe that the complaint has merit, the Assistant
Secretary will order appropriate relief, including: A requirement that
the person take affirmative action to abate the violation;
reinstatement to the seaman's former position; compensatory damages,
including back pay with interest and damages such as litigation fees
and costs; and punitive damages up to $250,000, where appropriate.
Affirmative action to abate the violation includes a variety of
measures, such as posting notices about SPA orders and rights, as well
as expungement of adverse comments in a personnel record. Scott v.
Roadway Express, Inc., No. 01-065, 2003 WL 21269144, at *1-2 (ARB May
29, 2003) (posting notices of STAA orders and rights); Pollock v.
Continental Express, Nos. 07-073, 08-051, 2010 WL 1776974, at *9 (ARB
Apr. 7, 2010) (expungement of adverse references).
The findings and, where appropriate, the preliminary order, advise
the parties of their right to file objections to the findings and the
preliminary order of the Assistant Secretary and to request a hearing.
If no objections are filed within 30 days of receipt of the findings,
the findings and any preliminary order of the Assistant Secretary
become the final decision and order of the Secretary. If objections are
timely filed, any order of preliminary reinstatement will take effect,
but the remaining provisions of the order will not take effect until
administrative proceedings are completed.
In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he or she received prior to his termination, but not actually
return to work. Smith v. Lake City Enterprises, Inc., Nos. 09-033, 08-
091, 2010 WL 3910346, at *8 (ARB Sept. 24, 2010) (holding that an
employer who violated STAA was to compensate the complainant with
"front pay" when reinstatement was not possible). Such front pay or
economic reinstatement is also employed in cases arising under section
105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
815(c)(2). Sec'y of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC
697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Front pay has been
recognized as a possible remedy in cases under the whistleblower
statutes enforced by OSHA in circumstances where reinstatement would
not be appropriate. Hagman v. Washington Mutual Bank, , ALJ No. 2005-
SOX-73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that while
reinstatement is the "preferred and presumptive remedy" under
Sarbanes-Oxley, "[f]ront pay may be awarded as a substitute when
reinstatement is inappropriate due to: (1) An employee's medical
condition that is causally related to her employer's retaliatory action
. . .; (2) manifest hostility between the parties...; (3) the fact
that claimant's former position no longer exists...; or (4) the fact
that employer is no longer in business at the time of the decision");
Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB
Feb. 9, 2001) (noting circumstances in which front pay may be available
in lieu of reinstatement but ordering reinstatement); Brown v. Lockheed
Martin Corp., ALJ No. 2008-SOX-49, 2010 WL 2054426, at *55-56 (Jan. 15,
2010) (same). Congress intended that seamen be preliminarily reinstated
to their positions if OSHA finds reasonable cause to believe that they
were discharged in violation of SPA. When OSHA finds a violation, 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 seaman. In
such situations, actual reinstatement might be delayed until after the
administrative adjudication is completed as long as the seaman
continues to receive his or her pay and benefits and is not otherwise
disadvantaged by a delay in reinstatement. There is no statutory basis
for allowing the employer to recover the costs of economically
reinstating a seaman should the employer ultimately prevail in the
whistleblower adjudication.
In ordering interest on back pay, the Secretary has determined
that, instead of computing the interest due by compounding quarterly
the Internal Revenue Service 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, interest will be compounded daily.
The Secretary believes that daily compounding of interest better
achieves the make-whole purpose of a back pay award. Daily compounding
of interest has become the norm in private lending and recently was
found to be the most appropriate method of calculating interest on back
pay by the National Labor Relations Board. Jackson Hosp. Corp. v.
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. &
Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4
(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).
Subpart B--Litigation
Section 1986.106 Objections to the Findings and the Preliminary Order
and Request for a Hearing
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge within 30 days of receipt of the findings. The
date of the postmark, facsimile transmittal, or electronic
communication transmittal is considered the date of the filing; if the
objection is filed in person, by hand-delivery or other means, the
objection is filed upon receipt. The filing of objections also is
considered a request for a hearing before an ALJ. Although the parties
are directed to serve a copy of their objections on the other parties
of record and the OSHA official who issued the findings, 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. Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-101,
2005 WL 2865915, at *7 (ARB Oct. 31, 2005).
A respondent may file a motion to stay OSHA's preliminary order of
reinstatement with the Office of Administrative Law Judges. However, a stay
will be granted only on the basis of exceptional circumstances. OSHA believes
that a stay of the Assistant Secretary's preliminary order of reinstatement
would be appropriate only where the respondent can establish the necessary
criteria for a stay, i.e., the respondent would suffer irreparable
injury; the respondent is likely to succeed on the merits; a balancing
of possible harms to the parties favors the respondent; and the public
interest favors a stay.
Section 1986.107 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. This section 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. If both the complainant and respondent object to
the findings and/or preliminary order of the Assistant Secretary, an
ALJ will conduct a single, consolidated hearing. This section states
that ALJs have broad power to limit discovery in order to expedite the
hearing. This furthers an important goal of SPA--to have unlawfully
terminated seamen reinstated as quickly as possible.
This section explains that 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. This is 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...." Federal
Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 (1948)
(administrative agencies not restricted by rigid rules of evidence).
Furthermore, it is inappropriate to apply the technical rules of
evidence in part 18 because OSHA anticipates that complainants will
often appear pro se, as is the case with other whistleblower statutes
the Department of Labor administers. Also, hearsay evidence is often
appropriate in whistleblower cases, as there often is no relevant
evidence other than hearsay to prove discriminatory intent. ALJs have
the responsibility to determine the appropriate weight to be given to
such evidence. For these reasons the interests of determining all of
the relevant facts are best served by not having strict evidentiary
rules.
Section 1986.108 Role of Federal Agencies
Paragraph (a)(1) of this section explains that the Assistant
Secretary, represented by an attorney from the appropriate Regional
Solicitor's office, ordinarily will be the prosecuting party in cases
in which the respondent objects to the findings or the preliminary
reinstatement order. This has been the practice under STAA, from which
the SPA's procedures are drawn, and the public interest generally
requires the Assistant Secretary's participation in such matters. The
case reports show that there has been relatively little litigation
under SPA to date, and OSHA believes that relatively few private
attorneys have developed adequate expertise in representing SPA
whistleblower complainants.
Where the complainant, but not the respondent, objects to the
findings or order, the regulations retain the Assistant Secretary's
discretion to participate as a party or amicus curiae at any stage of
the proceedings, including the right to petition for review of an ALJ
decision.
Paragraph (a)(2) clarifies that if the Assistant Secretary assumes
the role of prosecuting party in accordance with paragraph (a)(1), he
or she may, upon written notice to the other parties, withdraw as the
prosecuting party in the exercise of prosecutorial discretion. If the
Assistant Secretary withdraws, the complainant will become the
prosecuting party and the ALJ will issue appropriate orders to regulate
the course of future proceedings.
Paragraph (a)(3) provides that copies of documents in all cases
must be sent to all parties, or if represented by counsel, to them. If
the Assistant Secretary is participating in the proceeding, copies of
documents must be sent to the Regional Solicitor's office representing
the Assistant Secretary.
Paragraph (b) states that the U.S. Coast Guard, if interested in a
proceeding, also may participate as amicus curiae at any time in the
proceeding. This paragraph also permits the U.S. Coast Guard to request
copies of all documents, regardless of whether it is participating in
the case.
Section 1986.109 Decisions and Orders of the Administrative Law Judge
This section sets forth in paragraph (a) the requirements for the
content of the decision and order of the ALJ. Paragraphs (a) and (b)
state the standards for finding a violation under SPA and for
precluding such a finding.
Specifically, the complainant must show that the protected activity
was a "contributing factor" in the adverse action alleged in the
complaint. 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." Clarke, supra, at *3. The complainant (a term that,
in this paragraph, refers to the Assistant Secretary if he or she is
the prosecuting party) can succeed by providing either direct or
indirect proof of contribution. Direct evidence is evidence that
conclusively connects the protected activity and the adverse action and
does not rely upon inference. If the complainant does not produce
direct evidence, he or she must proceed indirectly, or inferentially,
by proving by a preponderance of the evidence that an activity
protected by SPA was the true reason for the adverse action. One type
of indirect, also known as circumstantial, evidence is evidence that
discredits the respondent's proffered reasons for the adverse action,
demonstrating instead that they were pretext for retaliation. Id.
Another type of circumstantial evidence is temporal proximity between
the protected activity and the adverse action. Ferguson, supra, at *2.
The respondent may avoid liability if it "demonstrates by clear and
convincing evidence" that it would have taken the same adverse action
in any event. Clear and convincing evidence is evidence indicating that
the thing to be proved is highly probably or reasonably certain.
Clarke, supra, at *3.
Paragraph (c) provides that the Assistant Secretary's
determinations about when to proceed with an investigation and when to
dismiss a complaint without an investigation or without a complete
investigation are discretionary decisions not subject to review by the
ALJ. The ALJ therefore may not remand cases to the Assistant Secretary
to conduct an investigation or make further factual findings. If there
otherwise is jurisdiction, the ALJ will hear the case on the merits or
dispose of the matter without a hearing if warranted by the facts and
circumstances.
Paragraph (d)(1) describes the remedies that the ALJ may order and
provides that interest on back pay will be calculated using the
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621
and will be compounded daily. (See the earlier discussion of section
1986.105.) In addition, paragraph (d)(2) in this section requires the
ALJ to issue an order denying the complaint if he or she determines that
the respondent has not violated SPA.
The Chamber of Shipping of America requested that section 1986.109
and .110 be amended to allow awards to employers of attorney fees and
litigation costs against claimants found to have made frivolous or
fraudulent claims. Docket ID OSHA-2011-0841-0004. The Secretary
declines to do so. Under the American Rule, generally parties must bear
their own costs of litigation unless expressly authorized by Congress.
Key Tronic v. United States, 511 U.S. 809, 814 (1994); Aleyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975);
Unbelievable, Inc. v. NLRB, 118 F.3d 795, 805 (D.C. Cir. 1997) (holding
that the NLRB does not have the authority to depart from the American
Rule to award attorney's fees incurred because of the assertion of
frivolous defenses). There is no such expression of intent here: There
is no language in either SPA or STAA entitling respondents to recover
attorney's fees. Indeed STAA, which is incorporated by SPA, expressly
allows successful claimants to recover attorney's fees; the statute's
failure to make a similar provision for employers only serves to
underscore the fact that Congress did not intend to award them.
Similarly, other whistleblower statues that OSHA administers do allow
respondents to recover for frivolous or bad faith claims. See, e.g., 6
U.S.C. 1142(c)(3)(D); 15 U.S.C. 2087(b)(3)(C); 49 U.S.C.
42121(b)(3)(C). This also cuts against the idea that Congress intended
them here. The Secretary may only award those remedies Congress has
actually empowered him to award. Filiberti v. Merit Sys. Prot. Bd., 804
F.2d 1504, 1511-12 (9th Cir. 1986) (citing Civil Aeronautics Board v.
Delta Air Lines, Inc., 367 U.S. 316, 322 (1961)). Finally, the point of
SPA is to provide assurance to seamen that they are free to report
safety concerns. The addition of a potential sanction for filing a
claim under the Act has the potential to undercut that goal. Thus, OSHA
rejects the Chamber's suggestion here.
Paragraph (e) requires that the ALJ's decision be served on all
parties to the proceeding, the Assistant Secretary, and the Associate
Solicitor, Division of Occupational Safety and Health, U.S. Department
of Labor. Paragraph (e) also provides that any ALJ decision requiring
reinstatement or lifting a preliminary order of reinstatement by the
Assistant Secretary will be effective immediately upon receipt of the
decision by the respondent. All other portions of the ALJ's order will
be effective 14 days after the date of the decision unless a timely
petition for review has been filed with the ARB.
Section 1986.110 Decisions and Orders of the Administrative Review
Board
Paragraph (a) sets forth rules regarding seeking review of an ALJ's
decision with the ARB. Upon the issuance of the ALJ's decision, the
parties have 14 days within which to petition the ARB for review of
that decision. If no timely petition for review is filed with the ARB,
the decision of the ALJ becomes the final decision of the Secretary and
is not subject to judicial review. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of filing of the petition; if the petition is filed in person, by
hand delivery or other means, the petition is considered filed upon
receipt. In addition to being sent to the ARB, the petition is to be
served on all parties, the Chief Administrative Law Judge, the
Assistant Secretary, and, in cases in which the Assistant Secretary is
a party, the Associate Solicitor, Division of Occupational Safety and
Health, U.S. Department of Labor. Consistent with the procedures for
petitions for review under other OSHA-administered whistleblower laws,
paragraph (b) of this section indicates that the ARB has discretion to
accept or reject review in SPA whistleblower cases. Congress intended
these whistleblower cases to be expedited, as reflected by the
provision in STAA, which applies to SPA, providing for a hearing de
novo in district court if the Secretary has not issued a final decision
within 210 days of the filing of the complaint. Making review of SPA
whistleblower cases discretionary may assist in furthering that goal.
As noted in paragraph (a) of this section, 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.
When the ARB accepts a petition for review, the ARB will review the
ALJ's factual determinations under the substantial evidence standard.
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. In exceptional
circumstances, however, the ARB may grant a motion to stay an ALJ's
order of reinstatement. A stay of a preliminary order of reinstatement
is appropriate only where the respondent can establish the necessary
criteria for a stay, i.e., the respondent will suffer irreparable
injury; the respondent is likely to succeed on the merits; a balancing
of possible harms to the parties favors the respondent; and the public
interest favors a stay.
Paragraph (c) incorporates the statutory requirement that the
Secretary's final decision be issued within 120 days of the conclusion
of the hearing. The hearing is deemed concluded 14 days after the date
of the ALJ's decision unless a motion for reconsideration has been
filed with the ALJ, in which case the hearing is concluded on the date
the motion for reconsideration is ruled upon or 14 days after a new ALJ
decision is issued. This paragraph further provides for the ARB's
decision in all cases to be served on all parties, the Chief
Administrative Law Judge, the Assistant Secretary, and the Associate
Solicitor, Division of Occupational Safety and Health, U.S. Department
of Labor, even if the Assistant Secretary is not a party.
Paragraph (d) describes the remedies the ARB can award if it
concludes that the respondent has violated SPA. (See the earlier
discussion of remedies at section 1986.105 and .109.) Under paragraph
(e), if the ARB determines that the respondent has not violated the
law, it will issue an order denying the complaint.
Subpart C--Miscellaneous Provisions
Section 1986.111 Withdrawal of SPA Complaints, Findings, Objections,
and Petitions for Review; Settlement
This section provides procedures and time periods for the
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, 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.
Paragraph (a) permits a complainant to withdraw, orally or in
writing, his or her complaint to the Assistant Secretary at any time
prior to the filing of objections to the Assistant Secretary's findings
and/or preliminary order. The Assistant Secretary will confirm in
writing the complainant's desire to withdraw and will determine whether
to approve the withdrawal. If approved, the Assistant Secretary will
notify all parties if the withdrawal is approved. Complaints that are
withdrawn pursuant to settlement agreements prior to the filing of
objections must be approved in accordance with the settlement approval
procedures in paragraph (d). The complainant may not withdraw his
or her complaint after the filing of objections to the Assistant
Secretary's findings and/or preliminary order.
Under paragraph (b), the Assistant Secretary may withdraw his or
her findings and/or preliminary order at any time before the expiration
of the 30-day objection period described in section 1986.106, if no
objection has yet been filed. The Assistant Secretary may substitute
new findings and/or a preliminary order, and the date of receipt of the
substituted findings and/or order will begin a new 30-day objection
period.
Paragraph (c) addresses situations in which parties seek to
withdraw either objections to the Assistant Secretary's findings and/or
preliminary order or petitions for review of ALJ decisions. A party may
withdraw its objections to the Assistant Secretary's findings and/or
preliminary order at any time before the findings and/or preliminary
order become final by filing a written withdrawal with the ALJ.
Similarly, if a case is on review with the ARB, a party may withdraw
its petition for review of an ALJ's decision at any time before that
decision becomes final by filing a written withdrawal with the ARB. The
ALJ or the ARB, depending on where the case is pending, will determine
whether to approve the withdrawal of the objections or the petition for
review. Paragraph (c) clarifies that if the ALJ approves a request to
withdraw objections to the Assistant Secretary's findings and/or
preliminary order, and there are no other pending objections, the
Assistant Secretary's findings and/or preliminary order will become the
final order of the Secretary. Likewise, if the ARB approves a request
to withdraw a petition for review of an ALJ decision, and there are no
other pending petitions for review of that decision, the ALJ's decision
will become the final order of the Secretary. Finally, paragraph (c)
provides that if objections or a petition for review are withdrawn
because of settlement, the settlement must be submitted for approval in
accordance with paragraph (d).
Paragraph (d)(1) states that a case may be settled at the
investigative stage if the Assistant Secretary, the complainant, and
the respondent agree. The Assistant Secretary's approval of a
settlement reached by the respondent and the complainant demonstrates
his or her consent and achieves the consent of all three parties.
Paragraph (d)(2) permits a case to be settled if the participating
parties agree and the ALJ before whom the case is pending approves at
any time after the filing of objections to the Assistant Secretary's
findings and/or preliminary order. Similarly, if the case is before the
ARB, the ARB may approve a settlement between the participating
parties.
Under paragraph (e), settlements approved by the Assistant
Secretary, the ALJ, or the ARB will constitute the final order of the
Secretary and may be enforced pursuant to 49 U.S.C. 31105(e), as
incorporated by 46 U.S.C. 2114(b).
Section 1986.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary. Paragraph (a) provides that within 60
days of the issuance of a final order under sections 1986.109 or
1986.110, a person adversely affected or aggrieved by such order may
file a petition for review of the order in the court of appeals of the
United States for the circuit in which the violation allegedly occurred
or the circuit in which the complainant resided on the date of the
violation. Paragraph (b) states that a final order will not be subject
to judicial review in any criminal or other civil proceeding. Paragraph
(c) requires that in cases where judicial review is sought the ARB or
ALJ, as the case may be, must submit the record of proceedings to the
appropriate court pursuant to the Federal Rules of Appellate Procedure
and the local rules of such court.
Section 1986.113 Judicial Enforcement
This section provides that the Secretary may obtain judicial
enforcement of orders, including orders approving settlement
agreements, by filing a civil action seeking such enforcement in the
United States district court for the district in which the violation
occurred.
Section 1986.114 District Court Jurisdiction of Retaliation Complaints
Under SPA
This section allows a complainant to bring an action in district
court for de novo review of the allegations contained in the complaint
filed with OSHA if there has been no final decision of the Secretary
and 210 days have passed since the filing of that complaint and the
delay was not due to the complainant's bad faith. This section reflects
the Secretary's position that it would not be reasonable to construe
the statute to permit a complainant to initiate an action in federal
court after the Secretary issues a final decision, even if the date of
the final decision is more than 210 days after the filing of the
administrative complaint. In the Secretary's view, the purpose of the
"kick out" provision is to aid the complainant in receiving a prompt
decision. That goal is not implicated in a situation where the
complainant already has received a final decision from the Secretary.
In addition, permitting the complainant to file a new case in district
court in such circumstances could conflict with the parties' rights to
seek judicial review of the Secretary's final decision in the court of
appeals.
Paragraph (b) of this section requires a complainant to provide a
file-stamped copy of his or her complaint within seven days after
filing a complaint in district court to the Assistant Secretary, the
ALJ, or the ARB, depending on where the proceeding is pending. A copy
of the complaint also must be provided to the OSHA official who issued
the findings and/or preliminary order, the Assistant Secretary, and the
Associate Solicitor, Division of Occupational Safety and Health, U.S.
Department of Labor. This provision is necessary to notify the Agency
that the complainant has opted to file a complaint in district court.
This provision is not a substitute for the complainant's compliance
with the requirements for service of process of the district court
complaint contained in the Federal Rules of Civil Procedure and the
local rules of the district court where the complaint is filed.
Section 1986.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and three-day's notice to the parties, waive any rule or issue such
orders as justice or the administration of SPA's whistleblower
provision requires.
V. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, Section 1986.103) 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.
VI. Administrative Procedure Act
The notice and comment rulemaking procedures of 5 U.S.C.553, a
provision 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). Part 1986
sets forth interpretive rules and rules of agency procedure and
practice within the meaning of that section. Therefore, publication in the
Federal Register of a notice of proposed rulemaking and request for
comments was not required. Although Part 1986 was not subject to the
notice and comment procedures of the APA, the Assistant Secretary
sought and considered comments to enable the agency to improve the
rules by taking into account the concerns of interested persons.
Furthermore, because this rule is procedural and 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. Furthermore,
most of the provisions of this rule were in the IFR and have already
been in effect since February 6, 2013.
VII. 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 section 3(f)(4) of Executive
Order 12866, as 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 regulatory impact analysis has been prepared.
Because no notice of proposed rulemaking was published, no statement is
required under section 202 of the Unfunded Mandates Reform Act of 1995,
2 U.S.C. 1532. In any event, this rulemaking is procedural and
interpretive in nature and is thus not expected to have a significant
economic impact. Finally, this rule does not have "federalism
implications." The rule does not have "substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government" and therefore is not subject to
Executive Order 13132 (Federalism).
VIII. 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.
List of Subjects in 29 CFR Part 1986
Administrative practice and procedure, Employment, Investigations,
Marine safety, Reporting and recordkeeping requirements, Safety,
Seamen, 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 September 1, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1986
is revised to read as follows:
PART 1986--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION
ACT (SPA), AS AMENDED
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
1986.100 Purpose and scope.
1986.101 Definitions.
1986.102 Obligations and prohibited acts.
1986.103 Filing of retaliation complaints.
1986.104 Investigation.
1986.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1986.106 Objections to the findings and the preliminary order and
request for a hearing.
1986.107 Hearings.
1986.108 Role of Federal agencies.
1986.109 Decisions and orders of the administrative law judge.
1986.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1986.111 Withdrawal of SPA complaints, findings, objections, and
petitions for review; settlement.
1986.112 Judicial review.
1986.113 Judicial enforcement.
1986.114 District court jurisdiction of retaliation complaints under
SPA.
1986.115 Special circumstances; waiver of rules.
Authority: 46 U.S.C. 2114; 49 U.S.C. 31105; Secretary's Order
1-2012 (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. 1986.100 Purpose and scope.
(a) This part sets forth the procedures for, and interpretations
of, the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended,
which protects a seaman from retaliation because the seaman has engaged
in protected activity pertaining to compliance with maritime safety
laws and accompanying regulations. SPA incorporates the procedures,
requirements, and rights described in the whistleblower provision of
the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105.
(b) This part establishes procedures pursuant to the statutory
provisions set forth above for the expeditious handling of retaliation
complaints filed by seamen or persons acting on their behalf. These
rules, together with those rules codified at 29 CFR part 18, set forth
the procedures for submission of complaints, investigations, issuance
of findings and preliminary orders, objections to findings, litigation
before administrative law judges (ALJs), post-hearing administrative
review, withdrawals and settlements, and judicial review and
enforcement. In addition, the rules in this part provide the
Secretary's interpretations on certain statutory issues.
Sec. 1986.101 Definitions.
As used in this part:
(a) Act means the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as
amended.
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
(c) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(d) Citizen of the United States means an individual who is a
national of the United States as defined in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)); a corporation
incorporated under the laws of the United States or a State; a
corporation, partnership, association, or other business entity if the
controlling interest is owned by citizens of the United States or whose
principal place of business or base of operations is in a State; or a
governmental entity of the Federal Government of the United States, of
a State, or of a political subdivision of a State. The controlling
interest in a corporation is owned by citizens of the United States if
a majority of the stockholders are citizens of the United States.
(e) Complainant means the seaman who filed a SPA whistleblower
complaint or on whose behalf a complaint was filed.
(f) Cooperated means any assistance or participation with an
investigation, at any stage of the investigation, and regardless of the
outcome of the investigation.
(g) Maritime safety law or regulation includes any statute or
regulation regarding health or safety that applies to any person or
equipment on a vessel.
(h) Notify or notified includes any oral or written communications.
(i) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(j) Person means one or more individuals or other entities,
including but not limited to corporations, companies, associations,
firms, partnerships, societies, and joint stock companies.
(k) Report or reported means any oral or written communications.
(l) Respondent means the person alleged to have violated 46 U.S.C.
2114.
(m) Seaman means any individual engaged or employed in any capacity
on board a U.S.-flag vessel or any other vessel owned by a citizen of
the United States, except members of the Armed Forces. The term
includes an individual formerly performing the work described above or
an applicant for such work.
(n) Secretary means the Secretary of Labor or persons to whom
authority under the Act has been delegated.
(o) State means a State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and
the Northern Mariana Islands.
(p) Vessel means every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of
transportation on water.
(q) Vessel owner includes all of the agents of the owner, including
the vessel's master.
(r) Any future amendments to SPA that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1986.102 Obligations and prohibited acts.
(a) A person may not retaliate against any seaman because the
seaman:
(1) In good faith reported or was about to report to the Coast
Guard or other appropriate Federal agency or department that the seaman
believed that a violation of a maritime safety law or regulation
prescribed under that law or regulation has occurred;
(2) Refused to perform duties ordered by the seaman's employer
because the seaman had a reasonable apprehension or expectation that
performing such duties would result in serious injury to the seaman,
other seamen, or the public;
(3) Testified in a proceeding brought to enforce a maritime safety
law or regulation prescribed under that law;
(4) Notified, or attempted to notify, the vessel owner or the
Secretary of the department in which the Coast Guard was operating of a
work-related personal injury or work-related illness of a seaman;
(5) Cooperated with a safety investigation by the Secretary of the
department in which the Coast Guard was operating or the National
Transportation Safety Board;
(6) Furnished information to the Secretary of the department in
which the Coast Guard was operating, the National Transportation Safety
Board, or any other public official as to the facts relating to any
marine casualty resulting in injury or death to an individual or damage
to property occurring in connection with vessel transportation; or
(7) Accurately reported hours of duty under part A of subtitle II
of title 46 of the United States Code.
(b) Retaliation means any discrimination against a seaman
including, but not limited to, discharging, demoting, suspending,
harassing, intimidating, threatening, restraining, coercing,
blacklisting, or disciplining a seaman.
(c) For purposes of paragraph (a)(2) of this section, the
circumstances causing a seaman's apprehension of serious injury must be
of such a nature that a reasonable person, under similar circumstances,
would conclude that there was a real danger of an injury or serious
impairment of health resulting from the performance of duties as
ordered by the seaman's employer. To qualify for protection based on
activity described in paragraph (a)(2) of this section, the seaman must
have sought from the employer, and been unable to obtain, correction of
the unsafe condition. Any seaman who requested such a correction shall
be protected against retaliation because of the request.
Sec. 1986.103 Filing of retaliation complaints.
(a) Who may file. A seaman who believes that he or she has been
retaliated against by a person in violation of SPA may file, or have
filed by any person on the seaman's behalf, a complaint alleging such
retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If a seaman is unable to file a complaint
in English, OSHA will accept the complaint in any other language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the seaman 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. Not later than 180 days after an alleged
violation occurs, a seaman who believes that he or she has been
retaliated against in violation of SPA may file, or have filed by any
person on his or her behalf, a complaint alleging such retaliation. The
date of the postmark, facsimile transmittal, 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.
(e) Relationship to section 11(c) complaints. A complaint filed
under SPA alleging facts that would also constitute a violation of
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), will be deemed to be a complaint under both SPA and section
11(c). Similarly, a complaint filed under section 11(c) that alleges
facts that would also constitute a violation of SPA will be deemed to
be a complaint filed under both SPA and section 11(c). Normal procedures
and timeliness requirements under the respective statutes and regulations
will be followed.
Sec. 1986.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the respondent of the filing of the
complaint by providing the respondent with a copy of the complaint,
redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and
other applicable confidentiality laws. The Assistant Secretary will
also notify the respondent of the respondent's rights under paragraphs
(b) and (f) of this section. The Assistant Secretary will provide a
copy of the unredacted complaint to the complainant (or complainant's
legal counsel, if complainant is represented by counsel) and to the
U.S. Coast Guard.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
may submit to the Assistant Secretary a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent may request a meeting with the Assistant Secretary
to present its position.
(c) Throughout the investigation, the Agency will provide to the
complainant (or the complainant's legal counsel if complainant is
represented by counsel) a copy of all of respondent's submissions to
the Agency that are responsive to the complainant's whistleblower
complaint. Before providing such materials to the complainant, the
Agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The Agency will also provide the complainant with an opportunity to
respond to such 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 seaman engaged in a protected activity;
(ii) The respondent knew or suspected that the seaman engaged in
the protected activity;
(iii) The seaman suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
seaman engaged in protected activity and that the protected activity
was a contributing factor in the adverse action. The burden may be
satisfied, for example, if the complainant shows that the adverse
action took place shortly after the protected activity, giving rise to
the inference that it was a contributing factor in the adverse action.
If the required showing has not been made, the complainant (or the
complainant's legal counsel if complainant is represented by counsel)
will be so notified and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent 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 paragraph (e)(4) of this section, the
Assistant Secretary will proceed with the investigation. The
investigation will proceed whenever it is necessary or appropriate to
confirm or verify the information provided by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1986.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the respondent has violated
the Act and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the respondent (or the respondent's legal
counsel, if respondent is represented by counsel) to give notice of the
substance of the relevant evidence supporting the complainant's
allegations as developed during the course of the investigation. This
evidence includes any witness statements, which will be redacted to
protect the identity of confidential informants where statements were
given in confidence; if the statements cannot be redacted without
revealing the identity of confidential informants, summaries of their
contents will be provided. The complainant will also receive a copy of
the materials that must be provided to the respondent under this
paragraph. Before providing such materials to the complainant, the
Agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The respondent will be given the opportunity to submit a written
response, to meet with the 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 the Assistant Secretary's notification pursuant to this
paragraph, or as soon thereafter as the Assistant Secretary and the
respondent can agree, if the interests of justice so require.
Sec. 1986.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether there is
reasonable cause to believe that the respondent retaliated against the
complainant in violation of SPA.
(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.
Such order will require, where appropriate: Affirmative action to abate
the violation; reinstatement of the complainant to his or her former
position, with the same compensation, terms, conditions and privileges
of the complainant's employment; payment of compensatory damages (back
pay with interest and compensation for any special damages sustained as
a result of the retaliation, including any litigation costs, expert
witness fees, and reasonable attorney fees which the complainant has
incurred). 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 may also require the
respondent to pay punitive damages of 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
the order and to request a hearing. 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 the preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and request for a hearing have been timely filed as provided
at Sec. 1986.106. However, the portion of any preliminary order
requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.
Subpart B--Litigation
Sec. 1986.106 Objections to the findings and the preliminary order
and request for a hearing.
(a) Any party who desires review, including judicial review, must
file any objections and a request for a hearing on the record within 30
days of receipt of the findings and preliminary order pursuant to Sec.
1986.105(c). The objections and request for a hearing must be in
writing and state whether the objections are to the findings and/or the
preliminary order. The date of the postmark, facsimile transmittal, or
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, and the OSHA official who issued the findings.
(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 on the basis of exceptional
circumstances. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or preliminary
order will become the final decision of the Secretary, not subject to
judicial review.
Sec. 1986.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
codified at subpart A of part 18 of this title.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo on the record. ALJs have broad
discretion to limit discovery in order to expedite the hearing.
(c) If both the complainant and the respondent object to the
findings and/or order, the objections will be consolidated, and a
single hearing will be conducted.
(d) Formal rules of evidence will not apply, but rules or
principles designed to assure production of the most probative evidence
will be applied. The ALJ may exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Sec. 1986.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding. In any case in which the respondent objects to the findings
or the preliminary order, the Assistant Secretary ordinarily will be
the prosecuting party. In any other cases, at the Assistant Secretary's
discretion, the Assistant Secretary may participate as a party or
participate as amicus curiae at any stage of the proceeding. This right
to participate includes, but is not limited to, the right to petition
for review of a decision of an ALJ, including a decision approving or
rejecting a settlement agreement between the complainant and the
respondent.
(2) If the Assistant Secretary assumes the role of prosecuting
party in accordance with paragraph (a)(1) of this section, he or she
may, upon written notice to the ALJ or the Administrative Review Board
(ARB), as the case may be, and the other parties, withdraw as the
prosecuting party in the exercise of prosecutorial discretion. If the
Assistant Secretary withdraws, the complainant will become the
prosecuting party and the ALJ or the ARB, as the case may be, will
issue appropriate orders to regulate the course of future proceedings.
(3) Copies of documents in all cases shall be sent to all parties,
or if they are represented by counsel, to the latter. In cases in which
the Assistant Secretary is a party, copies of the documents shall be
sent to the Regional Solicitor's Office representing the Assistant
Secretary.
(b) The U.S. Coast Guard, if interested in a proceeding, may
participate as amicus curiae at any time in the proceeding, at its
discretion. At the request of the U.S. Coast Guard, copies of all
documents in a case must be sent to that agency, whether or not that
agency is participating in the proceeding.
Sec. 1986.109 Decisions 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 or the Assistant Secretary has satisfied the
burden set forth in the prior paragraph, relief may not be ordered if
the respondent demonstrates by clear and convincing evidence that it
would have taken the same adverse action in the absence of any
protected activity.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
1986.104(e) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the ALJ, and a complaint may
not be remanded for the completion of an investigation or for
additional findings on the basis that a determination to dismiss was
made in error. Rather, if there otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose of the matter without a hearing if
the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will require, where appropriate:
affirmative action to abate the violation, reinstatement of the
complainant to his or her former position, with the same compensation,
terms, conditions, and privileges of the complainant's employment;
payment of compensatory damages (back pay with interest and
compensation for any special damages sustained as a result of the
retaliation, including any litigation costs, expert witness fees, and
reasonable attorney fees which the complainant may have incurred); and
payment of punitive damages up to $250,000. 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.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of
Occupational Safety and Health, 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 ARB, U.S. Department
of Labor. The ALJ decision will become the final order of the Secretary
unless a petition for review is timely filed with the ARB and the ARB
accepts the decision for review.
Sec. 1986.110 Decisions and orders of the Administrative Review
Board.
(a) The Assistant Secretary or any other party desiring to seek
review, including judicial review, of a decision of the ALJ must file a
written petition for review with the ARB, 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 and all briefs must be served on the
Assistant Secretary and, in cases in which the Assistant Secretary is a
party, on the Associate Solicitor, Division of Occupational Safety and
Health, 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 ruled upon or 14 days after a new decision is
issued. The ARB's final decision will be served upon all parties and
the Chief Administrative Law Judge by mail. The final decision also
will be served on the Assistant Secretary and on the Associate
Solicitor, Division of Occupational Safety and Health, 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 require, where appropriate: Affirmative action to
abate the violation; reinstatement of the complainant to his or her
former position, with the same compensation, terms, conditions, and
privileges of the complainant's employment; payment of compensatory
damages (back pay with interest and compensation for any special
damages sustained as a result of the retaliation, including any
litigation costs, expert witness fees, and reasonable attorney fees the
complainant may have incurred); and payment of punitive damages up to
$250,000. 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.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint.
Subpart C--Miscellaneous Provisions
Sec. 1986.111 Withdrawal of SPA 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 the Assistant Secretary,
orally or in writing, of his or her withdrawal. The Assistant Secretary
then will confirm in writing the complainant's desire to withdraw and
determine whether to approve the withdrawal. The Assistant Secretary
will notify the parties (and each party's legal counsel if the party is
represented by counsel) of the approval of any withdrawal. If the
complaint is withdrawn because of settlement, the settlement must be
submitted for approval in accordance with paragraph (d) of this
section. A complainant may not withdraw his or her complaint after the
filing of objections to the Assistant Secretary's findings and/or
preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or a
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1986.106, 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
preliminary order become final, a party may withdraw objections to the
Assistant Secretary's findings and/or preliminary order by filing a
written withdrawal with the ALJ. If a case is on review with the ARB, a
party may withdraw a petition for review of an ALJ's decision at any time
before that decision becomes final by filing a written withdrawal with the ARB.
The ALJ or the ARB, as the case may be, will determine whether to approve
the withdrawal of the objections or the petition for review. If the ALJ
approves a request to withdraw objections to the Assistant Secretary's
findings and/or order, and there are no other pending objections, the
Assistant Secretary's findings and/or order will become the final order
of the Secretary. If the ARB approves a request to withdraw a petition
for review of an ALJ decision, and there are no other pending petitions
for review of that decision, the ALJ's decision will become the final
order of the Secretary. If objections or a petition for review are
withdrawn because of settlement, the settlement must be submitted for
approval in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
SPA complaint and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant, and the respondent agree to a
settlement. The Assistant Secretary's approval of a settlement reached
by the respondent and the complainant demonstrates the Assistant
Secretary'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 the Assistant Secretary, the ALJ, or
the ARB will constitute the final order of the Secretary and may be
enforced in a United States district court pursuant to 49 U.S.C.
31105(e), as incorporated by 46 U.S.C. 2114(b).
Sec. 1986.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1986.109 and 1986.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the court of appeals of the United States 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. 1986.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order, including one approving a settlement
agreement issued under SPA, 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. 1986.114 District court jurisdiction of retaliation complaints
under SPA.
(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. The action shall, at the request of either party to such
action, be tried by the court with a jury.
(b) Within seven days after filing a complaint in federal court, a
complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. A copy of the complaint also must be served on the
OSHA official who issued the findings and/or preliminary order, the
Assistant Secretary, and the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor.
Sec. 1986.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of the
rules in this part, or for good cause shown, the ALJ or the ARB on
review may, upon application, after three days notice to all parties,
waive any rule or issue such orders as justice or the administration of
SPA requires.
[FR Doc. 2016-21758 Filed 9-14-16; 8:45 am]
BILLING CODE 4510-26-P
