[Federal Register Volume 81, Number 198 (Thursday, October 13, 2016)][Rules and Regulations][Pages 70607-70626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24559]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1984
[Docket Number: OSHA-2011-0193]
RIN 1218-AC79
Procedures for the Handling of Retaliation Complaints Under
Section 1558 of the Affordable Care Act
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: This document provides the final text of regulations governing
employee protection (retaliation or whistleblower) claims under section
1558 of the Affordable Care Act, which added section 18C to the Fair
Labor Standards Act to provide protections to employees who may have
been subject to retaliation for seeking assistance under certain
affordability assistance provisions (for example, health insurance
premium tax credits) or for reporting potential violations of the
Affordable Care Act's consumer protections (for example, the
prohibition on rescissions). An interim final rule (IFR) governing
these provisions and request for comments was published in the Federal
Register on February 27, 2013. Thirteen comments were received; eleven
were responsive to the IFR. This rule responds to those comments and
establishes the final procedures and time frames for the handling of
retaliation complaints under section 18C, including procedures and time
frames for employee complaints to the Occupational Safety and Health
Administration (OSHA), investigations by OSHA, appeals of OSHA
determinations to an administrative law judge (ALJ) for a hearing de
novo, hearings by ALJs, review of ALJ decisions by the Administrative
Review Board (ARB) (acting on behalf of the Secretary of Labor), and
judicial review of the Secretary of Labor's (Secretary's) final
decision. It also sets forth the Secretary's interpretations of the
Affordable Care Act whistleblower provision on certain matters.
DATES: This final rule is effective on October 13, 2016.
FOR FURTHER INFORMATION CONTACT: Anh-Viet Ly, Directorate of
Whistleblower Protection Programs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-4624, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email:
OSHA.DWPP@dol.gov. This is not a toll-free number.
This Federal Register publication is available in alternative
formats. The alternative formats available are: Large print, electronic
file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille
System), and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
The Patient Protection and Affordable Care Act, Public Law 111-148,
124 Stat. 119, was signed into law on March 23, 2010 and was amended by
the Health Care and Education Reconciliation Act of 2010, Public Law
111-152, 124 Stat. 1029, that was signed into law on March 30, 2010.
The terms "Affordable Care Act," or "Act," or "ACA" are used in
this rulemaking to refer to the final, amended version of the law.
Section 1558 of the Affordable Care Act amended the Fair Labor
Standards Act (FLSA) to add section 18C, 29 U.S.C. 218C (section 18C),
which provides protection to employees against retaliation by an
employer for engaging in certain protected activities.
Under section 18C, an employer may not retaliate against an
employee for receiving a credit under section 36B of the Internal
Revenue Code of 1986 (Code) or cost-sharing reductions (referred to as
a "subsidy" in section 18C) under the Affordable Care Act. In
general, section 36B of the Code allows certain individuals to receive
the premium tax credit for coverage under a qualified health plan
through an Exchange if they are not eligible for health coverage (other
than in the individual market) including an offer from their employer
of affordable coverage that provides minimum value and if their
household income is between 100% and 400% of the federal poverty line.
In addition, individuals eligible for the premium tax credit may also
qualify for cost-sharing reductions if certain other qualifications are
met.
Individuals may qualify for advance payment of the premium tax
credit (APTC), which is payment during the year to an individual's
insurance provider that pays for part or all of the premiums for a
qualified health plan through the Exchange covering the individual and
his or her family. Eligibility for APTC is based on the Exchange's
estimate of the premium tax credit to which the individual will be
entitled on his or her tax return. Filing of an individual's federal
income tax return is the process through which an individual claims the
premium tax credit, and if APTC was paid for the individual or a member
of his or her family, it is also the process through which the
individual must reconcile the APTC with the premium tax credit.
Since 2015, under section 4980H of the Code, certain employers
(referred to as applicable large employers) must either offer health
coverage that is affordable and that provides minimum value to their
full-time employees (and offer coverage to their dependents), or be
subject to an assessable payment (referred to as an "employer shared
responsibility payment") payable to the IRS if any full-time employee
receives the premium tax credit for coverage through an Exchange. Thus,
the relationship between the employee's receipt of the premium tax
credit and the potential employer shared responsibility payment imposed
on an applicable large employer could create an incentive for an
employer to retaliate against an employee. Section 18C protects
employees against such retaliation.
Section 18C also protects employees against retaliation because
they provided or are about to provide to their employer, the federal
government or the attorney general of a state, information relating to
any violation of, or any act or omission the employee reasonably
believes to be a violation of, any provision of or amendment made by
title I of the Affordable Care Act; testified or are about to testify
in a proceeding concerning such violation; assisted or participated, or
are about to assist or participate, in such a proceeding; or objected
to, or refused to participate in, any activity, policy, practice, or
assigned task that the employee reasonably believed to be in violation
of any provision of title I of the Act (or amendment), or any order,
rule, regulation, standard, or ban under title I of the Act (or
amendment). Among other provisions, title I of the Affordable Care Act
includes a range of health insurance market reforms such as: The
prohibition on lifetime and annual dollar limits on essential health
benefits, the requirement for non-grandfathered plans to cover certain
recommended preventive services with no cost sharing, and a prohibition
on pre-existing condition exclusions.
This final rule revises the procedures for the handling of
whistleblower complaints under section 18C of the FLSA and sets forth
the Secretary's interpretations of the ACA whistleblower provision on
certain matters. To the extent possible within the bounds of applicable
statutory language, these revised rules are designed to be consistent
with the procedures applied to claims under other whistleblower
statutes administered by OSHA. Responsibility for receiving and
investigating complaints under section 18C has been delegated to the
Assistant Secretary for Occupational Safety and Health (Assistant
Secretary). Secretary of Labor's Order 1-2012 (Jan. 18, 2012), 77 FR
3912 (Jan. 25, 2012). Hearings on determinations by the Assistant
Secretary are conducted by the Office of Administrative Law Judges, and
appeals from decisions by ALJs are decided by the ARB. Secretary of
Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).
II. Summary of Statutory Procedures
Section 18C(b)(1) adopts the procedures, notifications, burdens of
proof, remedies, and statutes of limitation in the Consumer Product
Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Accordingly,
a covered employee (complainant) may file a complaint with the
Secretary of Labor (Secretary) within 180 days of the alleged
retaliation. Upon receipt of the complaint, the Secretary must provide
written notice to the person or persons named in the complaint alleged
to have violated section 18C (respondent) of the filing of the
complaint, the allegations contained in the complaint, the substance of
the evidence supporting the complaint, and the rights afforded the
respondent throughout the investigation. The Secretary must then,
within 60 days of receipt of the complaint, afford the complainant and
respondent an opportunity to submit a response and meet with the
investigator to present statements from witnesses, and conduct an
investigation.
Section 18C, through the incorporation of CPSIA, provides that the
Secretary may conduct an investigation only if the complainant has made
a prima facie showing that protected activity was a contributing factor
in the adverse action alleged in the complaint and the respondent has
not demonstrated, through clear and convincing evidence, that the
employer would have taken the same adverse action in the absence of
that activity. (See Sec. 1984.104 for a summary of the investigative
process). OSHA interprets the prima facie case requirement as allowing
the complainant to meet this burden through the complaint as
supplemented by interviews of the complainant.
After investigating a complaint, the Secretary will issue written
findings. If, as a result of the investigation, the Secretary finds
that there is reasonable cause to believe that retaliation has
occurred, the Secretary must notify the respondent of that finding,
along with a preliminary order that requires the respondent to, where
appropriate: Take affirmative action to abate the violation; reinstate
the complainant to his or her former position together with the compensation
of that position (including back pay) and restore the terms, conditions, and
privileges associated with his or her employment; and provide
compensatory damages to the complainant, as well as all costs and
expenses (including attorney fees and expert witness fees) reasonably
incurred by the complainant for, or in connection with, the bringing of
the complaint upon which the order was issued.
The complainant and the respondent then have 30 days after the date
of the Secretary's notification in which to file objections to the
findings and/or preliminary order and request a hearing before an ALJ.
The filing of objections under section 18C of the FLSA will stay any
remedy in the preliminary order except for preliminary reinstatement.
If a hearing before an ALJ is not requested within 30 days, the
preliminary order becomes final and is not subject to judicial review.
If a hearing before an ALJ is held, the statute requires the
hearing to be conducted "expeditiously." The Secretary then has 120
days after the conclusion of any hearing in which to issue a final
order, which may provide appropriate relief, or deny the complaint.
Until the Secretary's final order is issued, the Secretary, the
complainant, and the respondent may enter into a settlement agreement
that terminates the proceeding. Where the Secretary has determined that
a violation has occurred, the Secretary will order the respondent to,
where appropriate: Take affirmative action to abate the violation;
reinstate the complainant to his or her former position together with
the compensation of that position (including back pay) and restore the
terms, conditions, and privileges associated with his or her
employment; and provide compensatory damages to the complainant, as
well as all costs and expenses (including attorney fees and expert
witness fees) reasonably incurred by the complainant for, or in
connection with, the bringing of the complaint upon which the order was
issued.
Within 60 days of the issuance of the final order, any person
adversely affected or aggrieved by the Secretary's final order may file
an appeal with the United States Court of Appeals for the circuit in
which the violation occurred or the circuit where the complainant
resided on the date of the violation.
Section 18C permits the employee to seek de novo review of the
complaint by a United States District Court in the event that the
Secretary has not issued a final decision within 210 days after the
filing of the complaint, or within 90 days after receiving a written
determination. The court will have jurisdiction over the action without
regard to the amount in controversy, and the case will be tried before
a jury at the request of either party.
Finally, section 18C(b)(2) of the FLSA provides that nothing in
section 18C 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, and the rights and remedies in section
18C may not be waived by any agreement, policy, form, or condition of
employment.
III. Summary and Discussion of Regulatory Provisions
On February 27, 2013, OSHA published in the Federal Register an IFR
promulgating rules governing the employee protection provisions of
section 1558 of the Affordable Care Act, which added section 18C of the
FLSA. 78 FR 13222. OSHA included a request for public comment on the
interim final rule by April 29, 2013.
Seven organizations and four individuals filed responsive comments
with OSHA within the public comment period. OSHA received comments from
Tate and Renner (Renner); the Blue Cross Blue Shield Association
(BCBS); the American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO); America's Health Insurance Plans (AHIP); the
Service Employees International Union (SEIU); the National Federation
of Independent Business (NFIB); the United States Chamber of Commerce
(Chamber); Thomas O'Grady; DeAnna Beckner; J.I.M. Choate; and N.
Menold.
OSHA has reviewed and considered the comments and now adopts this
final rule with minor revisions. The following discussion addresses the
comments, OSHA's responses, and any other changes to the provisions of
the rule. The provisions in the IFR are adopted and continued in this
final rule, unless otherwise noted below.
General Comments
Comments Related to Section 2706(b) of the Public Health Service Act
As OSHA explained in the preamble to the IFR (78 FR 13223), section
18C became effective on the date the health care law was enacted, March
23, 2010. The Affordable Care Act also added section 2706(b) to the
Public Health Service Act (PHSA), 42 U.S.C. 300gg et seq., as amended
by section 1201 of the Affordable Care Act, and section 2706 of the
PHSA first became effective for plan years beginning on or after
January 1, 2014. The Affordable Care Act added Code section 9815(a) and
Employee Retirement Income Security Act (ERISA) section 715(a) to
incorporate the provisions of part A of title XXVII of the PHS Act
(which includes PHSA section 2706) into the Code and ERISA.
Accordingly, PHSA section 2706 is subject to shared interpretive
jurisdiction by the Departments of Health and Human Services (HHS), the
Treasury (Treasury), and Labor (DOL). Section 2706 of the PHSA is
titled "Non-Discrimination in Health Care" and provides, in relevant
part: "(b) INDIVIDUALS.--The provisions of section 1558 of the Patient
Protection and Affordable Care Act (relating to non-discrimination)
shall apply with respect to a group health plan or health insurance
issuer offering group or individual health insurance coverage."
Four commenters (BCBS, AHIP, the Chamber, and AFL-CIO) commented on
the discussion in the IFR of the relationship between section 18C and
section 2706(b) of the PHSA. OSHA has reviewed these comments and
referred them to HHS, Treasury and the DOL's Employee Benefits Security
Administration, which share interpretive jurisdiction over section
2706. The IFR included a discussion on PHSA section 2706(b) in the
preamble to the rule solely to put the public on notice that section
PHSA section 2706(b) includes a reference to section 1558 of the
Affordable Care Act. However, the IFR did not include any regulatory
provisions aimed at implementing PHSA section 2706(b), nor do these
final regulations. Accordingly, interpretive guidance regarding PHSA
section 2706(b) is outside to the scope of these regulations.
Comments Regarding OSHA's Compliance With Notice and Comment Rulemaking
Procedures
NFIB commented that OSHA should re-issue the rule as a Notice of
Proposed Rulemaking (NPRM), complete with an initial regulatory
flexibility analysis and that OSHA should also examine whether a Small
Business Advocacy Review panel is necessary. The Chamber likewise
commented that OSHA has not sufficiently demonstrated that this
rulemaking is interpretative and procedural and should have provided an
economic analysis under Executive Orders 12866 and 13563, and an
initial regulatory flexibility analysis under the Regulatory
Flexibility Act (RFA). OSHA disagrees, and as explained below, OSHA
continues to believe that this rule is procedural and
interpretative, and that it has complied with the applicable
requirements for promulgating this rule.
Other General Comments
OSHA received additional general comments from several commenters.
Menold expressed general support for the IFR. Choate commented that the
final rule should use the word "judge" instead of "ALJ" when
referring to administrative law judges. After consideration, the use of
the abbreviation "ALJ" has been retained in the final rule as
consistent with agency practice.
NFIB expressed general concern that section 18C would lead to an
increase in whistleblower complaints that would impair small businesses
and expressed the hope that OSHA would work to ensure that its
procedures allow an opportunity at the outset for the small business
and the employee to resolve a complaint without having to go through a
formal investigation and adjudication.
Beckner supported the "implementation of 'economic reinstatement'
or 'front pay' instead of preliminary reinstatement in situations
w[h]ere the employer and employee relationship has deteriorated beyond
repair" and the definition of employee to include former employees and
applicants.
She also commented that the period of time that must transpire
prior to a complainant filing for de novo review in district court is
too long, as did O'Grady who suggested that the alternative procedural
time periods that precede an employee's right to file a complaint to
federal district court should be streamlined in the interest of the
complainant who may be in a "precarious situation" during those
times. He also commented that if the process cannot be streamlined,
then once OSHA makes an initial determination that there is a valid
complaint the employee should receive an injunction barring further
retaliation.
SEIU and the AFL-CIO commented that the rules should include
specific provisions requiring employers to post notices regarding
whistleblower rights under section 18C.
Finally, Renner noted that section 1558 of the ACA, like other
whistleblower laws, is a remedial law and should be construed and
applied to further its remedial purposes. Renner also noted there may
be some overlap between the protections provided in ERISA section 510
and FLSA section 18C and asked that the Department's comments on the
final rule address this issue.
OSHA has not made any changes to the rule in response to these
comments. The 90-day and 210-day time periods for filing a complaint in
district court are established in the statute, and OSHA cannot change
them by regulation. 15 U.S.C. 2087(b)(4). With regard to O'Grady's
proposal for injunctive relief, OSHA notes that the statute already
provides for the type of relief requested. If it finds reasonable cause
to believe that retaliation occurred, the statute requires OSHA to
issue findings and an order containing relief including, where
appropriate, reinstatement. 15 U.S.C. 2087(b)(2). Under the statute,
OSHA's order of reinstatement is not stayed by the employer's request
for a hearing. Id. In addition, OSHA notes that it is unlawful for an
employer to engage in further retaliation against employees who pursue
whistleblower complaints under the ACA. See Benjamin v. Citationshares
Mgmt., ARB No. 12-029, 2013 WL 6385831, at *6 (ARB Nov. 5, 2013)
(noting "an employee engages in protected activity if he attempts to
provide information of retaliation that violates [a whistleblower
statute]" and holding that employee's recording of information in
support of his retaliation claim was protected); Diaz-Robianas v. Fla.
Power & Light Co., DOL No. 92-ERA-10, 1996 WL 171408, at *5 (Off.
Admin. App. Jan. 19, 1996) (noting under prior version of Energy
Reorganization Act that the statute "requires employers to refrain
from unlawfully motivated employment discrimination, and a complaint
that an employer has violated this requirement is protected");
McClendon v. Hewlett Packard, Inc., 2006-SOX-00029, 2006 WL 6577175 at
*76 (ALJ Oct. 5, 2006) (holding that filing a Sarbanes-Oxley Act
whistleblower complaint is in itself a protected activity); cf. Young
v. CSX Transp., Inc., 42 F. Supp. 3d 388, 2014 WL 4367461, at *5
(N.D.NY. Sept. 4, 2014) (acknowledging employer's concession that
filing a retaliation claim with OSHA is protected under the Federal
Railroad Safety Act). If an employee believes an employer is
retaliating against him for pursuing an ACA whistleblower complaint,
the employee should contact OSHA.
With regard to NFIB's comments regarding the impact on small
employers and the opportunities available for early resolution of
whistleblower complaints, OSHA agrees that resolution of whistleblower
complaints as early in the investigation process as possible is often
the best outcome for both parties. Accordingly, OSHA's Whistleblower
Investigations Manual encourages whistleblower investigators to
actively assist parties in reaching an agreement, where possible. See
OSHA Whistleblower Investigations Manual, at 6-12 (Jan. 28, 2016),
available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-007.pdf.
Additionally, in August 2015, OSHA issued a directive allowing
its regional offices to implement Early Resolution Programs in which,
at the parties' request, OSHA would make a neutral ADR coordinator,
unconnected with the investigation, available to assist the parties in
achieving an early resolution to the whistleblower case either upon the
filing of the whistleblower complaint or at any time up to the
completion of OSHA's investigation. Alternative Dispute Resolution
(ADR) Processes for Whistleblower Protection Program (Aug. 18, 2015),
available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-006.pdf.
With respect to SEIU and AFL-CIO's comment that OSHA should require
employers to post notices regarding section 18C's protections, OSHA is
not adding such a requirement to these rules. However, OSHA notes that
posting of a notice regarding whistleblower rights is one of the common
non-monetary remedies that OSHA orders in meritorious whistleblower
cases. OSHA believes that such notices can play a significant role in
ameliorating the chilling effect that retaliation has on employees who
might otherwise report violations of the law. Additionally, OSHA has
worked with other agencies that implement the Affordable Care Act to
ensure that information about the whistleblower provision is included
in notices and public information that those agencies provide to
employees and employers.
Finally, OSHA generally agrees with Renner's observation that
section 1558 of the ACA, like other whistleblower laws, is a remedial
law and should be construed and applied to further its remedial
purposes. With regard to Renner's comment regarding the potential
overlap between ERISA section 510 and FLSA section 18C, OSHA notes that
Renner is correct that some complainants may have claims under both
ERISA section 510 and FLSA section 18C. Section 18C's whistleblower
protections do not replace any protections that a whistleblower may
have under ERISA section 510. Whistleblowers may bring claims under
either or both statutes if their whistleblowing is protected under
both. However, in order to pursue a claim under section 18C either in
district court or before the Department of Labor (DOL), the complainant
must file a complaint with OSHA within 180 days of the alleged adverse
action. See 29 CFR 1984.103(d).
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Section 1984.100 Purpose and Scope
This section describes the purpose and scope of the regulations
implementing FLSA section 18C and provides an overview of the
procedures covered by these regulations. OSHA has added a statement in
subparagraph (b) noting that these rules set forth the Secretary's
interpretations of section 18C on certain statutory issues. AFL-CIO
commented that OSHA should add a discussion of PHSA section 2706(b) to
this section. However for the reasons previously explained, OSHA
declines to add such a discussion.
Section 1984.101 Definitions
This section includes general definitions applicable to FLSA
section 18C. The definitions of the terms "employer," "employee,"
and "person" from section 3 of the FLSA, 29 U.S.C. 203, apply to
these rules and are included here.
Consistent with the Secretary's interpretation of the term
"employee" in the other whistleblower statutes administered by OSHA
\1\ and with the Secretary's interpretation of the term "employee"
under the anti-retaliation provision found at section 15(a)(3) of the
FLSA, 29 U.S.C. 215(a)(3),\2\ the definition of the term "employee"
in section 1984.101 also includes former employees and applicants for
employment. This interpretation is supported by section 18C's plain
language which prohibits retaliation against "any employee" and
provides that "[a]n employee who believes that he or she has been
discharged or otherwise discriminated against by any employer in
violation of this section" may file a complaint with the Secretary of
Labor, (emphasis added). Section 18C's broad protection of "any
employee" from retaliation and provision of a cause of action against
"any employer" for retaliation makes clear that the parties need not
have a current employment relationship. Section 18C's broad
protections, like the protections in section 15(a)(3), contrast with
the narrower protections of sections 6 and 7 of the FLSA. Sections 6
and 7 provide respectively that an employer must pay at least the
minimum wage to "each of his employees" and must pay overtime to
"any of his employees," and thus require a current employment
relationship. See 29 U.S.C. 206(a) and (b), 29 U.S.C. 207(a)(1) and
(2). Congress chose to use the broad term "any" to modify employee
and employer in sections 18C(a) and (b), rather than providing more
restrictively that, for example, "no employer shall discharge or in
any manner discriminate against any of his employees" or "an employee
who believes that he or she has been discharged or otherwise
discriminated against by his employer" may file a complaint with the
Secretary of Labor. The Supreme Court has made clear that "any" has
an expansive meaning that does not limit the word it modifies. See,
e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct.
1325, 1332 (2011) (noting that the use of "any" in the phrase "filed
any complaint" in section 15(a)(3) of the FLSA "suggests a broad
interpretation that would include an oral complaint"); U.S. v.
Gonzales, 520 U.S. 1, 5 (1997) ("any" has an expansive meaning, that
is, "one or some indiscriminately of whatever kind") (internal
citations omitted). In addition, the explicit inclusion of
reinstatement and preliminary reinstatement (both of which can only be
awarded to former employees) among the remedies available for
whistleblowers under section 18C, which incorporates 15 U.S.C. 2087(b),
confirms that the complainant and the respondent need not have a
current employment relationship in order for the complainant to have a
claim under section 18C. See Dellinger v. Science Applications Int'l
Corp., 649 F.3d at 230 n.2 (section 15(a)(3) of the FLSA protects
former employees); cf. Robinson v. Shell Oil Co., 519 U.S. 337 (1997)
(term "employees" in anti-retaliation provision of Title VII of the
Civil Rights Act of 1964 includes former employees).
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\1\ See, e.g., 29 CFR 1980.101(g) (defining employee to include
former employees and applicants under the whistleblower provisions
in the Sarbanes-Oxley Act); 29 CFR 1978.101 (Surface Transportation
Assistance Act); 29 CFR 1981.101 (Pipeline Safety Improvement Act);
29 CFR 1982.101(d) (Federal Railroad Safety Act and the National
Transit Systems Security Act); 29 CFR 1983.101(h) (Consumer Product
Safety Improvement Act).
\2\ See Brief for the Secretary of Labor and the Equal
Employment Opportunity Commission as Amicus Curiae, Dellinger v.
Science Applications Int'l Corp., No. 10-1499 (4th Cir. Oct. 15,
2010) (explaining that the phrase "any employee" in section
15(a)(3) of the FLSA does not limit an individual's retaliation
claims to her current employer, but rather extends protection to
prospective employees from retaliation for engaging in protected
activity), and Brief of the Secretary of Labor and Equal Employment
Opportunity Commission as Amicus Curiae, Dellinger v. Science
Applications Int'l Corp., No. 10-1499 (4th Cir. Sept. 9, 2011)
(same); but see Dellinger v. Science Applications Int'l Corp., 649
F.3d 226, 229-31 & n.2 (4th Cir. 2011) (accepting that former
employees are protected from retaliation under section 15(a)(3) of
the FLSA but holding that applicants for employment are not).
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No comments were made on this section, other than those discussed
in the general comments suggesting additional definitions. OSHA made a
minor clarification to the definition of "respondent" and added
definitions of Exchange and advance payments of the premium tax credit
or APTC but has made no other substantive changes to this section.
Section 1984.102 Obligations and Prohibited Acts
This section describes the activities that are protected under
section 18C of the FLSA, and the conduct that is prohibited in response
to any protected activities. Section 18C(a)(1) protects any employee
from retaliation because the employee has "received a credit under
section 36B of the Internal Revenue Code of 1986 or a subsidy under
section 1402 of this Act." The reference to "a subsidy under section
1402 of this Act" in section 18C(a)(1) refers to receipt of a cost-
sharing reduction under the Affordable Care Act.
Under section 18C(a)(2), an employer may not retaliate against an
employee because the employee "provided, caused to be provided, or is
about to provide or cause to be provided to the employer, the federal
government, or the attorney general of a state information relating to
any violation of, or any act or omission the employee reasonably
believes to be a violation of, any provision of this title (or an
amendment made by this title)." Section 18C also protects employees
who testify, assist or participate in proceedings concerning such
violations or are about to do so. Sections 18C(a)(3) and (4), 29 U.S.C.
218C(a)(3) and (4). Finally, section 18C(a)(5) prohibits retaliation
because an employee "objected to, or refused to participate in, any
activity, policy, practice, or assigned task that the employee (or
other such person) reasonably believed to be in violation of any
provision of this title (or amendment), or any order, rule, regulation,
standard, or ban under this title (or amendment)." References to
"this title" in section 18C(a)(2) and (5) refer to title I of the
Affordable Care Act.
In order to have a "reasonable belief" under sections 18C(a)(2)
and (5) of the FLSA, a complainant must have both a subjective, good
faith belief and an objectively reasonable belief that the complained-
of conduct violates one of the enumerated categories of law. See
Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132 (10th
Cir. 2013) (discussing the reasonable belief standard under analogous
language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C.
1514A); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013) (same);
Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *12
(ARB May 25, 2011) (same). The requirement that the complainant have a
subjective, good faith belief is satisfied so long as the complainant
actually believed that the conduct complained of violated the relevant
law. See Sylvester, 2011 WL 2165854, at *12 (citing Harp v. Charter
Commc'ns, 558 F.3d 722, 723 (7th Cir. 2009)); Day v. Staples, Inc., 555
F.3d 42, 54 n.10 (1st Cir. 2009) (quoting Welch v. Chao, 536 F.3d 269,
277 n.4 (4th Cir. 2008) ("Subjective reasonableness requires that the
employee 'actually believed the conduct complained of constituted a
violation of pertinent law."'). The objective reasonableness of a
complainant's belief "is evaluated based on the knowledge available to
a reasonable person in the same factual circumstances with the same
training and experience as the aggrieved employee." Rhinehimer v. U.S.
Bancorp Investments, Inc., 787 F.3d 797, 811 (6th Cir. 2015) (internal
citations and quotations omitted); Sylvester, 2011 WL 2165854, at *12.
However, the complainant need not show that the conduct complained of
constituted an actual violation of law. Pursuant to this standard, an
employee's whistleblower activity is protected when it is based on a
reasonable, but mistaken, belief that a violation of the relevant law
has occurred or is likely to occur. See Sylvester, 2011 WL 2165854, at
*13 (citing Welch, 536 F.3d at 277); Allen v. Admin. Review Bd., 514
F.3d 468, 476-77 (5th Cir. 2008); Melendez v. Exxon Chemicals Americas,
ARB No. 96-051, slip op. at 21 (ARB July 14, 2000) ("It is also well
established that the protection afforded whistleblowers who raise
concerns regarding statutory violations is contingent on meeting the
aforementioned 'reasonable belief' standard rather than proving that
actual violations have occurred.").
OSHA received several comments on this section of the interim final
rule. For the reasons discussed below, the only change OSHA has made to
this section is to revise the section to clarify that, under section
18C(a)(1), an employee has "received" a premium tax credit or cost-
sharing reduction not only when a premium tax credit is allowed on the
individual's tax return but also when an Exchange finds the employee
eligible for APTC or for a cost-sharing reduction. At that point, the
employee may apply financial assistance to reduce his or her share of
the premium cost for coverage purchased through the Exchange, and the
prices that the Exchange provides to the employee for plans take into
account the employee's eligibility for such assistance. AFL-CIO and
SEIU commented that OSHA should clarify that FLSA section 18C(a)(1)
protects those who take the preliminary steps, such as gathering
information, that are needed to apply for health insurance coverage on
an Exchange and to apply for APTC. These commenters were particularly
concerned about protecting employees who ask their employers about the
health care coverage offered by their employers. These commenters noted
that to apply for APTC for health insurance on an Exchange, individuals
must provide certain information about their available employer-
sponsored insurance options, if any. HHS has developed a form for
employees to use in gathering information about any available employer-
sponsored insurance options and this form instructs employees to get
the information that they need from their employer. As SEIU explained
"[a]s currently proposed, the system puts the burden on individuals to
seek coverage information from their employer... in order to
complete the exchange application. Because of this, it is imperative
that the protection against retaliation extend to any preliminary
actions taken to receive the tax credit."
OSHA agrees that these commenters raise compelling concerns
regarding the potential for retaliation against employees who seek
information from their employer that they need to receive APTC when
they purchase health insurance through an Exchange. OSHA declines to
change the text of the rule, which generally mirrors the statutory
language, in response to these comments. However, OSHA believes that,
in certain circumstances, the existing case law under the other
whistleblower protection statutes that OSHA administers supports
protection for employees who seek information from their employer
regarding employer-sponsored health coverage in order to receive APTC
for health coverage through an Exchange.
When an employer believes that an employee has received a premium
tax credit or cost-sharing reduction and takes action based on that
belief, the employer's retaliatory motive is the same whether it arises
from an employee's inquiry regarding employer-provided coverage in
anticipation of applying for APTC or a cost-sharing reduction through
the Exchange, or whether it arises once the applicable Exchange
notifies the employer that the employee has qualified for a APTC or a
cost-sharing reduction through the Exchange. OSHA's regulations under
section 18C and case law under other anti-retaliation statutes make
clear that an employer may not retaliate against an employee when the
employer knows or suspects that the employee has engaged in activity
protected by the statute. See 29 CFR 1984.104(e); see also Reich v. Hoy
Shoe, Inc., 32 F.3d 361, 368 (8th Cir. 1994) (noting under section
11(c) of the Occupational Safety and Health Act (11(c)) that "[i] t
seems clear to this Court that an employer that retaliates against an
employee because of the employer's suspicion or belief that the
employee filed an OSHA complaint has as surely committed a violation of
Sec. 11(c) as an employer that fires an employee because the employer
knows that the employee filed an OSHA complaint"); Saffels v. Rice, 40
F.3d 1546, 1549 (8th Cir. 1994) (retaliation is unlawful under the FLSA
if based on an employer's mistaken belief that employees engaged in
FLSA-protected activity); Brock v. Richardson, 812 F.2d 121, 124-25 (3d
Cir. 1987) (same).
Similarly, an employer retaliates against an employee when the
employer threatens to take action if the employee engages in activity
protected under section 18C. See 29 CFR 1984.102(a) (defining
retaliation to include threats and intimidation). Indeed, courts have
long recognized that acts taken in anticipation of an employee's
protected activity to dissuade such activity can be actionable under
the anti-retaliation provisions of many statutes. See, e.g., Sauers v.
Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993) (noting under
Title VII's anti-retaliation provision that "[a]ction taken against an
individual in anticipation of that person engaging in protected
opposition to discrimination is no less retaliatory than action taken
after the fact"); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 411 (9th
Cir. 1993) (noting that anticipatory employer action that "discourages
the whistle blower before the whistle is blown" would violate ERISA
anti-retaliation statute, even though the employee has not yet filed
any formal complaint); Perez v. Fatima/Zahra, Inc., No. 14-2337, 2014
WL 2154092 (N.D. Cal. May 22, 2014) (issuing temporary restraining
order against employer who threatened employees that they would be
fired for talking to investigators); Solis v. SCA Restaurant Corp., 938
F. Supp. 2d 380, 389 (E.D.N.Y. 2013) (finding retaliation where
employer threatened employees with termination in anticipation of their
testimony for Secretary of Labor).
Thus, OSHA believes that an employee's inquiry to his or her
employer to gather the information necessary to apply for APTC for
coverage on the Exchange may trigger protection under section 18C if
the employee can show that either the employer's belief that the
employee had received a premium tax credit, or the employer's desire to
deter the employee from taking any further action that would result in
the employee's receiving a premium tax credit, contributed to the
employer's action against the employee.
Renner commented that the regulations should clarify that an
employer's decision to reduce an employee's hours of work to evade
application of the Affordable Care Act is unlawful under FLSA section
18C noting that "the reduction of hours directly reduces the
employee's wages and is materially adverse."
As explained earlier in this preamble, under section 4980H of the
Code, applicable large employers must either offer health coverage that
is affordable and that provides minimum value to their full-time
employees (and offer coverage to their dependents), or be subject to
assessment of an employer shared responsibility payment by the IRS if
at least one full-time employee receives the premium tax credit. In
general, for purposes of section 4980H of the Code, a full-time
employee is an employee with an average of at least 30 hours of service
per week. To the extent that Renner's comment implies that the
whistleblower protections apply if an employer reduces an employee's
hours of service to avoid or reduce liability under section 4980H of
the Code, OSHA disagrees because section 4980H of the Code does not
prohibit an employer from reducing an employee's hours of service in
order to avoid a potential employer shared responsibility payment.
However, to the extent that Renner is commenting that reducing work
hours in retaliation for activity protected under section 18C is
unlawful, OSHA agrees. For instance, if an employer reduces the hours
of an employee that the employer knows or suspects of receiving a
premium tax credit or subsidy, the employer's actions may violate
section 18C if the employee's receipt of the premium tax credit or
subsidy was a contributing factor in the employer's decision to reduce
the hours, and the employer is unable to show by clear and convincing
evidence that it would have taken the same action in the absence of
that protected activity. See 29 CFR 1984.104(e) (explaining the burdens
of proof in Affordable Care Act whistleblower cases); see also 29
U.S.C. 218C(b)(1) (incorporating the burdens of proof in 15 U.S.C.
2087(b)(2)(B)). In addition, OSHA notes that an employer violates
section 18C if it threatens employees with reductions in hours in order
to dissuade them from applying for APTC for health insurance on an
Exchange. See, e.g., Sauers, 1 F.3d at 1128. OSHA declines to change
the rule in response to Renner's comment because OSHA believes that
this issue is adequately addressed in the case law under analogous
anti-retaliation provisions and the rule has been drafted to be
consistent with OSHA's rules under other whistleblower-protection
statutes.
The Chamber commented that OSHA should limit the definition of
intimidation as a form of retaliation asserting that the term
"intimidation" left undefined is overly broad and that "[t]he
conduct that is considered intimidating should not be actionable unless
it results in a tangible adverse employment action, such as demotion,
negative performance review, failure to promote, assignment of
undesirable job duties, a pattern of harassment, and termination.
The Chamber further commented that equitable treatment of the
different parties requires OSHA to apply a reasonable belief standard
to respondents as well as to complainants. BCBS raised similar concerns
regarding the IFR, commenting that OSHA should apply the final rule
keeping in mind the unique challenges of implementing the Affordable
Care Act, which may make it difficult to determine whether an
employer's or issuer's actions are justified by the Affordable Care Act
guidance in effect at the time.
After consideration, OSHA declines to amend the rule in response to
the Chamber and BCBS's comments. With regard to the Chamber's
suggestion that OSHA adopt a reasonable belief requirement for
respondents as well as complainants and BCBS's comment that an employer
or issuer's actions may be justified based on the Affordable Care Act
guidance in effect at the time, OSHA notes that the statutory language
includes no "reasonable belief" standard for employers. However, OSHA
believes that case law under analogous statutes adequately addresses
these concerns. For example, the fact that an employer is following the
ACA guidance available at the time that an employee blows the whistle
may impact whether the employee can show that he had a reasonable
belief that the employer was violating the law. Similarly, if an
employer takes an action against an employee based on a reasonable, but
mistaken, belief of misconduct or another circumstance unrelated to
protected activity, the employee's subsequent whistleblower complaint
may fail. See Ledure v. BNSF Rwy. Co., ARB No. 13-044, 2015 WL 4071574,
at *6 (ARB Jun. 2, 2015) (affirming ALJ's conclusion that retaliation
did not occur where employer's refusal to allow employee to return to
work was based on reasonable, but mistaken, belief that employee was
not medically qualified to return to work and not on protected
whistleblowing).
With regard to the Chamber's comment that the rule should be
changed to limit the definition of "intimidation," OSHA believes that
the circumstances in which intimidation constitutes an adverse action
under section 18C are adequately addressed by case law under the
Department's other whistleblower statutes. While intimidation may be
linked with some other form of adverse action, intimidation that is
more than trivial may, standing alone, qualify as adverse action. The
phrase "terms, conditions, or other privileges of employment" does
not indicate that actionable adverse action is limited to "economic"
or "tangible" conditions of employment. See Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 64 (1986) (interpreting similar language in
Title VII of the Civil Rights Act of 1964); see also Menendez v.
Halliburton, Inc., ARB Nos. 09-002, 09-003, 2011 WL 4439090 at *11-12
(Sept. 13, 2011), aff'd, Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d
254 (5th Cir. 2014) (interpreting similar language in the Sarbanes-
Oxley Act). Rather, adverse action is action that a reasonable employee
would find "materially adverse," that is, the action is more than
trivial. Specifically, the evidence must show that the action at issue
could well have dissuaded a reasonable worker from engaging in
protected activity. See Burlington Northern & Santa Fe R. R. Co. v.
White, 548, U.S. 53, 68 (2006); Halliburton, 771 F.3d at 261-62
(affirming ARB's finding of adverse action that was not a tangible
employment action); Williams v. American Airlines, ARB No. 09-018, 2010
WL 5535815 at *6-8 (Dec. 29, 2010) (discussing adverse action under the
Department's whistleblower statutes). Thus, under this case law,
unlawful retaliation would include intimidating an employee for
engaging in protected activity when the intimidation would dissuade a
reasonable employee from engaging in protected activity.
Section 1984.103 Filing of Retaliation Complaint
This section explains the requirements for filing a retaliation
complaint under section 18C. To be timely, a complaint must be filed
within 180 days of when the alleged violation occurs. Under Delaware
State College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation
occurs when the retaliatory decision has been both made and
communicated to the complainant. In other words, the limitations period
commences once the employee is aware or reasonably should be aware of
the employer's decision. E.E.O.C. v. United Parcel Serv., Inc., 249
F.3d 557, 561-62 (6th Cir. 2001). However, the time for filing a
complaint may be tolled for reasons warranted by applicable case law.
For example, OSHA may consider the time for filing a section 18C
complaint equitably tolled if the complainant mistakenly files a
complaint with another agency instead of OSHA within 180 days after
becoming aware of the alleged violation. OSHA has revised this section
of the rule to note this example of when the time for filling a
complaint would be equitably tolled.
Complaints filed under section 18C of the FLSA need not be in any
particular form. They may be either oral or in writing. When a
complaint is made orally, OSHA will put the complaint in writing. If
the complainant is unable to file the complaint in English, OSHA will
accept the complaint in any language. With the consent of the employee,
complaints may be filed by any person on the employee's behalf.
OSHA notes that a complaint of retaliation filed with OSHA under
the Affordable Care Act is not a formal document and need not conform
to the pleading standards for complaints filed in federal district
court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v.
Parexel Int'l, Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May
26, 2011) (holding whistleblower complaints filed with OSHA under
analogous provisions in the Sarbanes-Oxley Act need not conform to
federal court pleading standards). Rather, the complaint filed with
OSHA under this section simply alerts OSHA to the existence of the
alleged retaliation and the complainant's desire that OSHA investigate
the complaint. Upon the filing of a complaint, OSHA is to determine
whether "the complaint, supplemented as appropriate by interviews of
the complainant" alleges "the existence of facts and evidence to make
a prima facie showing." 29 CFR 1984.104(e). As explained in Sec.
1984.104(e), if the complaint, supplemented as appropriate, contains a
prima facie showing, 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 15 U.S.C. 2087(b)(2); 29 CFR
1984.104(e).
No comments were received on this section of the IFR. However, in
addition to adding the example noted above of when the time for filing
a complaint might be tolled, OSHA changed the term "email" in
paragraph (d) to "electronic communication transmittal" because OSHA
has published an on-line complaint form on its Web site, http://www.whistleblowers.gov/complaint_page.html.
Section 1984.104 Investigation
This section describes the procedures that apply to the
investigation of complaints under section 18C. Paragraph (a) of this
section outlines the procedures for notifying the parties and
appropriate federal agencies of the complaint and notifying the
respondent of its rights under these regulations. Paragraph (b)
describes the procedures for the respondent to submit its response to
the complaint. Paragraph (c) describes the sharing of information
submitted to OSHA during the investigation and the opportunity that
each party will have to provide information to OSHA. Paragraph (d) of
this section discusses confidentiality of information provided during
investigations. Paragraph (e) of this section sets forth the applicable
burdens of proof. Paragraph (f) describes the procedures OSHA will
follow prior to the issuance of findings and a preliminary order when
OSHA has reasonable cause to believe that a violation has occurred.
Section 18C of the FLSA incorporates the burdens of proof set forth
in CPSIA, 15 U.S.C. 2087(b). That statute requires that a complainant
make an initial prima facie showing that protected activity was "a
contributing factor" in the adverse action alleged in the complaint,
i.e., that the protected activity, alone or in combination with other
factors, affected in some way the outcome of the employer's decision.
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.
A complainant's burden may be satisfied, for example, if he or she
shows that the adverse action took place shortly after the protected
activity, or at the first opportunity available to the respondent,
giving rise to the inference that it was a contributing factor in the
adverse action. See, e.g., Porter v. Cal. Dep't of Corrs., 419 F.3d
885, 895 (9th Cir. 2005) (holding that years between the protected
activity and the retaliatory actions did not defeat a finding of a
causal connection where the defendant did not have the opportunity to
retaliate until he was given responsibility for making personnel
decisions).
If the complainant does not make the required prima facie showing,
the investigation must be discontinued and the complaint dismissed. See
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the Energy Reorganization
Act of 1974, which is the same framework now applicable to section 18C
of the FLSA, serves a "gatekeeping function" that "stem[s] frivolous
complaints"). Even in cases where the complainant successfully makes a
prima facie showing, the investigation must be discontinued if the
respondent 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 section
18C of the FLSA and not investigate further if either: (1) The
complainant fails to make the prima facie showing that protected
activity was a contributing factor in the adverse action; or (2) the
respondent rebuts that showing by clear and convincing evidence that it
would have taken the same adverse action absent the protected activity.
Assuming that an investigation proceeds beyond the gatekeeping
phase, the statute requires OSHA to determine whether there is
reasonable cause to believe that protected activity was a contributing
factor in the alleged adverse action. A contributing factor is "any
factor which, alone or in connection with other factors, tends to
affect in any way the outcome of the decision." Marano v. Dep't of
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks,
emphasis and citation omitted) (discussing the Whistleblower Protection
Act, 5 U.S.C. 1221(e)(1)); see, e.g., Lockheed Martin Corp., 717 F.3d
at 1136. For protected activity to be a contributing factor in the
adverse action, "'a complainant need not necessarily prove that the
respondent's articulated reason was a pretext in order to prevail,"'
because a complainant alternatively can prevail by showing that the
respondent's "reason, while true, is only one of the reasons for its
conduct," and that another reason was the complainant's protected activity.
See Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, 2006
WL 3246904, at *13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor
test under the Sarbanes-Oxley whistleblower provision), aff'd sub nom.
Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936,
2010 WL 4746668 (5th Cir. 2010).
If OSHA finds reasonable cause to believe that the alleged
protected activity was a contributing factor in the adverse action,
OSHA may not order relief if the employer demonstrates by "clear and
convincing evidence" that it would have taken the same action in the
absence of the protected activity. See 15 U.S.C. 2087(b)(2)(B)(ii). The
"clear and convincing evidence" standard is a higher burden of proof
than a "preponderance of the evidence" standard. Clear and convincing
evidence is evidence indicating that the thing to be proved is highly
probable or reasonably certain. See, e.g., Clarke v. Navajo Express,
Inc., ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011)
(discussing burdens of proof under analogous whistleblower provision in
Surface Transportation Assistance Act).
BCBS and the Chamber commented on this section. BCBS commented that
the regulations should provide procedures for instances when the
complaint names multiple respondents and suggests amending Sec.
1984.104(e)(2)(ii) to read as follows: "Each respondent knew or
suspected... ." BCBS also commented that OSHA should dismiss
complaints against respondents who do not have the requisite knowledge
of alleged retaliation to justify continuing the complaint process
against them, and clarify in Sec. 1984.104(e)(3) that a showing that
the adverse action took place shortly after the protected activity
would not give rise to the inference that it was a contributing factor
in the adverse action in instances when the respondent did not know or
suspect that the complainant engaged in a protected activity.
OSHA declines to make these changes because they are unnecessary
and could cause confusion. The IFR already does not exclude multiple
respondents and adding the word "each" to Sec. 1984.104(e)(2)(ii)
could be construed as allowing liability only when all respondents have
the requisite knowledge or suspicion. Additionally, the IFR already
provides a basis for dismissing claims against respondents who lack
requisite knowledge or suspicion, such as at Sec. 1984.104(e) where it
provides that a "complaint, supplemented as appropriate by interviews
of the complainant, must allege the existence of facts and evidence to
make a prima facie showing that protected activity was a contributing
factor in the alleged adverse action including that "[t]he respondent
knew or suspected that the employee engaged in the protected activity .
. . ."
The Chamber commented that the IFR improperly treated respondents
and complainants differently by allowing complainants to receive copies
of documents submitted by the respondent, subject to privacy and
confidentiality standards, but providing no similar entitlement for
respondents. OSHA believes this is incorrect. The IFR and the statute
both provide the respondent the right to receive the substance of the
evidence supporting the complaint, and OSHA's investigation procedures,
which ensure that each party's submissions are available to the other
party during the investigation, are further explained in OSHA's
Whistleblower Investigations Manual. Nonetheless, to clarify that
respondents and complainants are afforded equal access to each other's
submissions during the OSHA investigation, OSHA has revised paragraph
(c) of this section to reflect its current information sharing
practices. Also, throughout this section, minor changes were made as
needed to clarify the remaining provisions without changing their
meaning.
Section 1984.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of a complaint, written findings regarding whether or not
there is reasonable cause to believe that the complaint has merit. If
the findings are that there is reasonable cause to believe that the
complaint has merit, the Assistant Secretary will order appropriate
relief, including preliminary reinstatement, affirmative action to
abate the violation, back pay with interest, compensatory damages,
attorney and expert witness fees, and costs. The findings and, where
appropriate, preliminary order, advise the parties of their right to
file objections to the findings of the Assistant Secretary and to
request a hearing. The findings and, where appropriate, preliminary
order, also advise the respondent of the right to request an award of
attorney fees not exceeding $1,000 from the ALJ, regardless of whether
the respondent has filed objections, if the complaint was frivolous or
brought in bad faith. 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.
This section also 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. In the Secretary's
view, 26 U.S.C. 6621 provides the appropriate rate of interest to
ensure that victims of unlawful retaliation under section 18C of the
FLSA are made whole. The Secretary has long applied the interest rate
in 26 U.S.C. 6621 to calculate interest on back pay in whistleblower
cases. See Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-
012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 2000); see also Cefalu
v. Roadway Express, Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB
Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051,
2010 WL 1776974, at *8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc.,
ARB No. 00-045, 2000 WL 1920347 at *6 (ARB Dec. 29, 2000). Section 6621
of the Code provides the appropriate measure of compensation under
section 18C and other DOL-administered whistleblower statutes because
it ensures the complainant will be placed in the same position he or
she would have been in if no unlawful retaliation occurred. See Ass't
Sec'y v. Double R. Trucking, Inc., ARB No. 99-061, 1999 WL 529752 at *4
(ARB July 16, 1999) (interest awards pursuant to Code section 6621 are
mandatory elements of complainant's make-whole remedy). Code section
6621 provides a reasonably accurate prediction of market outcomes
(which represents the loss of investment opportunity by the complainant
and the employer's benefit from use of the withheld money) and thus
provides the complainant with appropriate make-whole relief. See
E.E.O.C. v. County of Erie, 751 F.2d 79, 82 (2d Cir. 1984) ("[s]ince
the goal of a suit under the [Fair Labor Standards Act] and the Equal
Pay Act is to make whole the victims of the unlawful underpayment of
wages, and since [Code section 6621] has been adopted as a good
indicator of the value of the use of money, it was well within" the
district court's discretion to calculate prejudgment interest under Code
section 6621); New Horizons for the Retarded, Inc., 283 NLRB No. 181,
1987 WL 89652, at *2 (NLRB May 28, 1987) (observing that "the short-term
Federal rate [used by Code section 6621] is based on average market yields
on marketable Federal obligations and is influenced by private economic
market forces"). Similarly, as explained in the IFR, daily compounding
of the interest award ensures that complainants are made whole for
unlawful retaliation in violation of section 18C. See 78 FR 13227.
Finally, this section has been revised to note that when ordering
back pay, OSHA also will require the respondent to submit the
appropriate documentation to the Social Security Administration
allocating the back pay to the appropriate period. Requiring the
reporting of back pay allocation to the Social Security Administration
serves the remedial purposes of section 18C by ensuring that employees
subjected to retaliation are truly made whole. See Don Chavas, LLC d/b/
a Tortillas Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB
Aug. 8, 2014) (holding that back pay awards under the National Labor
Relations Act should include the allocation of back pay to the
appropriate calendar quarters). As the NLRB has explained, when back
pay is not properly allocated to the years covered by the award, a
complainant may be disadvantaged in several ways. First, improper
allocation may interfere with a complainant's ability to qualify for
any old-age Social Security benefit. Id. at *4 ("Unless a
[complainant's] multiyear back pay award is allocated to the
appropriate years, she will not receive appropriate credit for the
entire period covered by the award, and could therefore fail to qualify
for any old-age social security benefit"). Second, improper allocation
may reduce the complainant's eventual monthly benefit. Id. "[I]f a
backpay award covering a multi-year period is posted as income for 1
year, it may result in SSA treating the [complainant] as having
received wages in that year in excess of the annual contribution and
benefit base." Id. Wages above this base are not subject to Social
Security taxes, which reduces the amount paid on the employee's behalf.
"As a result, the [complainant's] eventual monthly benefit will be
reduced because participants receive a greater benefit when they have
paid more into the system." Id. Finally, "social security benefits
are calculated using a progressive formula: although a participant
receives more in benefits when she pays more into the system, the rate
of return diminishes at higher annual incomes." Therefore, a
complainant may "receive a smaller monthly benefit when a multiyear
award is posted to 1 year rather than being allocated to the
appropriate periods, even if social security taxes were paid on the
entire amount." Id. The purpose of a make-whole remedy such as back
pay is to restore the complainant to the same position the complainant
would have occupied absent the prohibited retaliation. That purpose is
not achieved when the complainant suffers the disadvantages described
above. The Secretary believes that requiring proper social security
allocation is necessary to achieve the make-whole purpose of a back pay
award. In addition to adding the requirement that the respondent submit
the appropriate documentation to the Social Security Administration
allocating the back pay to the appropriate period, OSHA has made minor
changes throughout this section as needed to clarify the provision
without changing its meaning.
OSHA received two comments on the remedy of reinstatement provided
for in this section. In the preamble to the IFR, OSHA noted that, while
the statute is clear that reinstatement is the presumptive remedy under
section 18C of the FLSA, in rare circumstances economic reinstatement
or front pay in lieu of actual reinstatement may be appropriate and
that reinstatement includes restoration of the terms, conditions, and
privileges associated with the complainant's employment as necessary to
put the employee in the same position or a position equivalent to the
position that the employee held prior to the retaliation. Beckner
commented in support of the use of economic reinstatement where the
employer-employee relationship has broken down beyond repair.
SEIU commented that OSHA should amend the rule to clarify that
reinstatement, including preliminary reinstatement, means full
restoration of pay and benefits. SEIU stated that reinstatement
requires full restoration to the status quo and includes restoration of
duties and hours where those were reduced to reduce an employee's pay.
As SEIU correctly noted, OSHA's Whistleblower Investigations Manual, as
well as relevant case law under the whistleblower protection statutes
that OSHA administers, makes clear that reinstatement is reinstatement
to the full status quo prior to the retaliation and would include a
restoration of hours and duties as necessary to ensure that the
whistleblower is returned to the same position that he or she would
have been in absent the retaliation. The statute explicitly requires
that the Secretary order the employer "to reinstate the complainant to
his or her former position together with compensation (including back
pay) and restore the terms, conditions, and privileges associated with
his or her employment." 15 U.S.C. 2087(b)(3)(B)(ii). If the employee's
original position is not available, the employer may return the
employee to an equivalent position. See, e.g., Hobby v. Georgia Power
Co., ARB Nos. 98-166, 98-169, 2001 WL 168898 at *10 (ARB Feb. 9, 2001)
(noting that "[w]hile the remedies section of the Energy
Reorganization Act whistleblower provision states that the Secretary
'shall... reinstate the [prevailing] complainant to his former
position...', this text has been construed to mean reinstatement to
the same or a similar position to the job that was formerly held")
(emphasis original, citations omitted). Because the statutory text and
the applicable case law make clear that reinstatement must restore the
complainant to the position he would have occupied absent the
retaliation or an equivalent position, OSHA has not made any changes to
the rule to clarify the term reinstatement in response to SEIU's
comment.
Subpart B--Litigation
Section 1984.106 Objections to the Findings and the Preliminary Order
and Requests for a Hearing
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, within 30 days of
receipt of the findings. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The
filing of objections also is considered a request for a hearing before
an ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards, the failure to serve copies of the objections on the other
parties of record does not affect the ALJ's jurisdiction to hear and
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31,
2005).
In this section, SEIU repeated its comment that the regulations
should clarify that the term "reinstatement," including "preliminary
reinstatement," means full restoration of pay and benefits. OSHA's
response to this comment is addressed in the discussion of Sec.
1984.105. No substantive changes have been made to this section.
Section 1984.107 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. Hearings are to commence expeditiously,
except upon a showing of good cause or unless otherwise agreed to by
the parties. Hearings will be conducted de novo, on the record. ALJs
continue to have broad discretion to limit discovery where necessary to
expedite the hearing. Formal rules of evidence will not apply, but
rules or principles designed to assure production of the most probative
evidence will be applied. The ALJ may exclude evidence that is
immaterial, irrelevant, or unduly repetitious.
No comments were received on this section and no changes were made.
Section 1984.108 Role of Federal Agencies
The Assistant Secretary, at his or her discretion, may participate
as a party or amicus curiae at any time in the administrative
proceedings under section 18C of the FLSA. For example, the Assistant
Secretary may exercise his or her discretion to prosecute the case in
the administrative proceeding before an ALJ, petition for review of a
decision of an ALJ, including a decision based on a settlement
agreement between the complainant and the respondent, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the ARB proceeding.
Although OSHA anticipates that ordinarily the Assistant Secretary will
not participate, the Assistant Secretary may choose to do so in
appropriate cases, such as cases involving important or novel legal
issues, large numbers of employees, alleged violations that appear
egregious, or where the interests of justice might require
participation by the Assistant Secretary. The Internal Revenue Service
of the United States Department of the Treasury, the United States
Department of Health and Human Services, and the Employee Benefits
Security Administration of the United States Department of Labor, if
interested in a proceeding, also may participate as amicus curiae at
any time in the proceedings.
No comments were received on this section. Throughout this section,
minor changes were made as needed to clarify the provision without
changing its meaning.
Section 1984.109 Decision and Orders of the Administrative Law Judge
This section sets forth the requirements for the content of the
decision and order of the ALJ, and includes the standard for finding a
violation under section 18C. Specifically, the complainant must
demonstrate (i.e. prove by a preponderance of the evidence) that the
protected activity was a "contributing factor" in the adverse action.
See, e.g., Allen, 514 F.3d at 475 n.1 ("The term 'demonstrates' means
to prove by a preponderance of the evidence."). If the employee
demonstrates that the protected activity was a contributing factor in
the adverse action, the employer, to escape liability, must demonstrate
by "clear and convincing evidence" that it would have taken the same
action in the absence of the protected activity. See id.
Paragraph (c) of this section provides that OSHA's determinations
regarding whether to proceed with an investigation under section 18C
and whether to make particular investigative findings are discretionary
decisions not subject to review by the ALJ. The ALJ hears cases de novo
and, therefore, as a general matter, may not remand cases to OSHA to
conduct an investigation or make further factual findings. Paragraph
(c) also notes that the ALJ can dispose of a matter without a hearing
if the facts and circumstances warrant.
Paragraph (d) notes the remedies that the ALJ may order under
section 18C and provides that interest on back pay will be calculated
using the interest rate applicable to underpayment of taxes under 26
U.S.C. 6621 and will be compounded daily. Paragraph (d) has been
revised to note that when back pay is ordered, the order will also
require the respondent to submit appropriate documentation to the
Social Security Administration allocating any back pay award to the
appropriate period. Paragraph (e) requires that the ALJ's decision be
served on all parties to the proceeding, the Assistant Secretary, and
the U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards. Paragraph (e) also provides that any ALJ decision requiring
reinstatement or lifting an order of reinstatement by the Assistant
Secretary will be effective immediately upon receipt of the decision by
the respondent. All other portions of the ALJ's order will be effective
14 days after the date of the decision unless a timely petition for
review has been filed with the ARB. 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.
No comments were received on this section. In addition to the
revision noted above regarding the allocation of back pay to the
appropriate period, minor changes were made as needed to clarify the
provision without changing its meaning.
Section 1984.110 Decision and Orders of the Administrative Review Board
Upon the issuance of the ALJ's decision, the parties have 14 days
within which to petition the ARB for review of that decision. If no
timely petition for review is filed with the ARB, the decision of the
ALJ becomes the final decision of the Secretary and is not subject to
judicial review. The date of the postmark, facsimile transmittal, or
electronic communication transmittal is considered the date of filing
of the petition; if the petition is filed in person, by hand delivery
or other means, the petition is considered filed upon receipt.
The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections may
be deemed waived. The ARB has 30 days to decide whether to grant the
petition for review. If the ARB does not grant the petition, the
decision of the ALJ becomes the final decision of the Secretary. If a
timely petition for review is filed with the ARB, any relief ordered by
the ALJ, except for that portion ordering reinstatement, is inoperative
while the matter is pending before the ARB. When the ARB accepts a
petition for review, the ALJ's factual determinations will be reviewed
under the substantial evidence standard. This section also provides
that, based on exceptional circumstances, the ARB may grant a motion to
stay an ALJ's preliminary order of reinstatement under section 18C,
which otherwise would be effective, while review is conducted by the
ARB. The Secretary believes that a stay of an ALJ's preliminary order
of reinstatement under section 18C would be appropriate only where the
respondent can establish the necessary criteria for equitable
injunctive relief, i.e., irreparable injury, likelihood of success on
the merits, a balancing of possible harms to the parties, and the public
interest favors a stay.
If the ARB concludes that the respondent has violated the law, it
will order the remedies listed in paragraph (d). Interest on back pay
will be calculated using the interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph
(d) has been revised to note that when back pay is ordered, the order
will also require the respondent to submit appropriate documentation to
the Social Security Administration allocating any back pay award to the
appropriate period. If the ARB determines that the respondent has not
violated the law, an order will be issued denying the complaint.
Beckner and Renner commented that the time period for filing a
petition for review with the ARB of an ALJ's decision is too short.
Beckner commented that allowing both parties only 14 days to petition
the ARB to review an ALJ decision appeal is too short and inconsistent
with the rule's allowing 30 days to determine whether an ALJ's decision
was in error. Renner commented that "[t]he proper adjudication of
whistleblower matters would be enhanced if parties and their counsel
can prepare their briefs, and select their issues, thoughtfully....
When faced with the unusually short time limit of fourteen (14) days to
submit a petition that must list all issues, advocates are likely to
overselect. To preserve issues and avoid missing a meritorious claim,
they are likely to list every issue that might conceivably apply. While
counsel could choose to drop issues between the petition and the brief,
requiring counsel to list all the issues in the petition makes it more
likely that counsel will then face pressure to brief those issues." He
added that "some whistleblowers or their counsel may find the task of
reviewing the record to identify all appealable issues so consuming
that they miss the short deadline for filing the petition for review."
Renner also commented that the provision that objections to legal
conclusions not raised in petitions for review may be deemed waived
should be changed. He specifically suggested that section 1984.110(a)
should be amended to read as follows: "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 so that the
Administrative Review Board may determine that the review presents
issues worthy of full briefing." He stated that the provision as
written could work against the remedial purpose of the law.
After consideration, OSHA declines to alter the time period within
which to appeal the decision of an ALJ. We believe that 14 days is
sufficient and note that it is consistent with the time periods
available under various other whistleblower provisions for which OSHA
is responsible, which range from ten business days to 14 calendar days.
Compare 29 CFR 1983.109(e) with 29 CFR 1985.109(e); 29 CFR 1987.109(e).
OSHA also declines to adopt Renner's additional suggestions relating to
this section. First, OSHA declines to extend the time limit to petition
for review because the shorter review period is consistent with the
practices and procedures followed in OSHA's other whistleblower
programs. Furthermore, parties may file a motion for extension of time
to appeal an ALJ's decision, and the ARB has discretion to grant such
extensions.
OSHA also declines to change the provision that objections to legal
conclusions not raised in petitions for review "may" be deemed
waived. OSHA first notes that the use of the term "may" in the IFR
was made as a result of comments submitted by Renner on other
whistleblower rules recently published by OSHA. See, e.g., Procedures
for the Handling of Retaliation Complaints Under Section 219 of the
Consumer Product Safety Improvement Act of 2008, 77 FR 40494, 40500-01
(July 10, 2012); Procedures for the Handling of Retaliation Complaints
Under the Employee Protection Provision of the Surface Transportation
Assistance Act of 1982, as amended, 77 FR 44121, 44131-32 (July 27,
2012). OSHA believes that use of the non-mandatory word "may"
adequately addresses Renner's underlying concern that grounds not
raised in a petition for review may be barred from consideration before
the ARB.
In addition to the revision noted above regarding the allocation of
back pay to the appropriate period, minor changes were made as needed
to clarify this section without changing its meaning.
Subpart C--Miscellaneous Provisions
Section 1984.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures and time periods for
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and the withdrawal of objections to
findings and/or orders. It also provides for approval of settlements at
the investigative and adjudicative stages of the case.
No comments were received on this section. Minor changes were made
as needed to this section to clarify the provision without changing its
meaning.
Section 1984.112 Judicial Review
This section describes the statutory provisions of CPSIA,
incorporated into section 18C of the FLSA, for judicial review of
decisions of the Secretary and requires, in cases where judicial review
is sought, the ALJ or the ARB to submit the record of proceedings to
the appropriate court pursuant to the rules of such court.
No comments were received on this section and no changes were made.
Section 1984.113 Judicial Enforcement
This section describes the Secretary's power under section 18C to
obtain judicial enforcement of orders and the terms of settlement
agreements. Section 18C incorporates the procedures, notifications,
burdens of proof, remedies, and statutes of limitations set forth in
CPSIA, 15 U.S.C. 2087(b), which expressly authorizes district courts to
enforce orders, including preliminary orders of reinstatement, issued
by the Secretary. See 15 U.S.C. 2087(b)(6) ("Whenever any person has
failed to comply with an order issued under paragraph (3), the
Secretary may file a civil action in the United States district court
for the district in which the violation was found to occur, or in the
United States district court for the District of Columbia, to enforce
such order."). Specifically, reinstatement orders issued at the close
of OSHA's investigation are immediately enforceable in district court
pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 18C of the FLSA
provides, through CPSIA, that the Secretary shall order the person who
has committed a violation to reinstate the complainant to his or her
former position. See 15 U.S.C. 2087(b)(3)(B)(ii). Section 18C of the
FLSA also provides, through CPSIA, that the Secretary shall accompany
any reasonable cause finding that a violation occurred with a
preliminary order containing the relief prescribed by subsection
(b)(3)(B) of CPSIA, which includes reinstatement where appropriate, and
that any preliminary order of reinstatement shall not be stayed upon
the filing of objections. See 15 U.S.C. 2087(b)(2)(A) ("The filing of
such objections shall not operate to stay any reinstatement remedy
contained in the preliminary order."). Thus, under section 18C of the
FLSA, enforceable orders include preliminary orders that contain the
relief of reinstatement prescribed by 15 U.S.C. 2087(b)(3)(B). This
statutory interpretation is consistent with the Secretary's interpretation
of similar language in the Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century and Sarbanes-Oxley. See Brief for the
Intervenor/Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); but see
Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 2006);
Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006)
(decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)).
Also, through application of CPSIA, section 18C of the FLSA permits the
person on whose behalf the order was issued to obtain judicial enforcement
of the order. See 15 U.S.C. 2087(b)(7).
No comments were received on this section. OSHA has revised this
section slightly to more closely parallel the provisions of the statute
regarding the proper venue for an enforcement action.
Section 1984.114 District Court Jurisdiction of Retaliation Complaints
This section sets forth the statutory provisions that allow a
complainant to bring an original de novo action in district court,
alleging the same allegations contained in the complaint filed with
OSHA, under certain circumstances. By incorporating the procedures,
notifications, burdens of proof, remedies, and statutes of limitations
set forth in CPSIA, 15 U.S.C. 2087(b), section 18C permits a
complainant to file an action for de novo review in the appropriate
district court if there has been no final decision of the Secretary
within 210 days of the filing of the complaint, or within 90 days after
receiving a written determination. "Written determination" refers to
the Assistant Secretary's written findings issued at the close of
OSHA's investigation under section 1984.105(a). 15 U.S.C. 2087(b)(4).
The Secretary's final decision is generally the decision of the ARB
issued under section 1984.110. In other words, a complainant may file
an action for de novo review in the appropriate district court in
either of the following two circumstances: (1) A complainant may file a
de novo action in district court within 90 days of receiving the
Assistant Secretary's written findings issued under section
1984.105(a), or (2) a complainant may file a de novo action in district
court if more than 210 days have passed since the filing of the
complaint and the Secretary has not issued a final decision. The plain
language of 15 U.S.C. 2087(b)(4), by distinguishing between actions
that can be brought if the Secretary has not issued a "final
decision" within 210 days and actions that can be brought within 90
days after a "written determination," supports allowing de novo
actions in district court under either of the circumstances described
above. However, in the Secretary's view, complainants may not initiate
an action in federal court after the Secretary issues a final decision,
even if the date of the final decision is more than 210 days after the
filing of the complaint or within 90 days of the complainant's receipt
of the Assistant Secretary's written findings. 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.
Under section 18C of the FLSA, the Assistant Secretary's written
findings become the final order of the Secretary, not subject to
judicial review, if no objection is filed within 30 days. See 15 U.S.C.
2087(b)(2). Thus, a complainant may need to file timely objections to
the Assistant Secretary's findings in order to preserve the right to
file an action in district court.
This section also requires that, within seven days after filing a
complaint in district court, a complainant must provide a file-stamped
copy of the complaint to the Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is pending. In all cases, a copy of
the complaint also must be provided to the OSHA official who issued the
findings and/or preliminary order, the Assistant Secretary, and the
U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards. This provision is necessary to notify the Agency that the
complainant has opted to file a complaint in district court. This
provision is not a substitute for the complainant's compliance with the
requirements for service of process of the district court complaint
contained in the Federal Rules of Civil Procedure and the local rules
of the district court where the complaint is filed. The section also
incorporates the statutory provisions which allow for a jury trial at
the request of either party in a district court action, and which
specify the remedies and burdens of proof in a district court action.
OSHA received two comments on this section that are addressed in
the general comments discussion. OSHA made minor changes to this
section, substituting the term "retaliation" for "discrimination"
and clarifying that in all cases parties must provide a copy of the
district court complaint to the OSHA official who issued the findings
and/or preliminary order, the Assistant Secretary, and the U.S.
Department of Labor's Associate Solicitor for Fair Labor Standards.
Section 1984.115 Special Circumstances; Waiver of Rules.
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and notice to the parties, waive any rule as justice or the
administration of section 18C of the FLSA requires.
No comments were made on this section and no substantive changes
were made.
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, Section 1984.103) which was previously reviewed and approved
for use by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The
assigned OMB control number is 1218-0236.
V. Administrative Procedure Act
NFIB and the Chamber commented that the IFR should be reissued as a
Notice of Proposed Rulemaking. However, the notice and comment
rulemaking procedures of section 553 of the Administrative Procedure
Act (APA) do not apply "to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice." 5
U.S.C. 553(b)(A). This rule is a rule of agency procedure, practice,
and interpretation within the meaning of that section.
This rule is "procedural on its face," because it sets forth
procedures for OSHA to use in investigating complaints under the
whistleblower provisions of the ACA, and procedures for the Secretary's
adjudication of ACA whistleblower cases. See U.S. Dep't of Labor v.
Kast Metals Corp., 744 F.2d 1145, 1150, 1152 (5th Cir.1984) (OSHA rule
which "set[] forth procedural steps to guide the agency in exercise of
its statutory authority to conduct investigations," was "procedural
on its face."); see also American Hosp. Assoc. v. Bowen, 834 F.2d
1037, 1050-51 (D.C. Cir. 1987) (holding the same with regard to HHS
enforcement plan). The rule is "primarily directed toward improving
the efficient and effective operations of" the agency. See
Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (citations omitted)
(explaining the difference between procedural and legislative rules).
The rule does not alter the rights or interests of the parties to an
ACA whistleblower proceeding, which are set forth in the statute and
relevant case law. Rather, the rule sets forth the procedures under
which the Secretary will investigate and adjudicate ACA whistleblower
disputes.
The rule is also interpretative, in part, since it also clarifies
certain statutory terms, reminds parties of their existing obligations
under the statute, and explains preexisting requirements under the
statute. See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1204
(2015), quoting Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995)
(noting that interpretative rules are "issued by an agency to advise
the public of the agency's construction of the statutes and rules which
it administers'); see also Mendoza, 754 F.3d at 1021 ("Interpretative
rules are those that clarify a statutory or regulatory term, remind
parties of existing statutory or regulatory duties, or merely track
preexisting requirements and explain something the statute or
regulation already required.") (internal citations and quotations
omitted). Therefore, OSHA was not required to publish a notice of
proposed rulemaking in the Federal Register and request public comments
on this rule. Although it was not required to do so for this procedural
and interpretative rule, OSHA 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. OSHA 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 27, 2013 so a delayed effective date is unnecessary.
VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132
NFIB and the Chamber commented that the IFR failed to comply with
Executive Orders 12866 and 13563. OSHA disagrees. The Office of
Management and Budget has concluded that this rule is a "significant
regulatory action" within the meaning of section 3(f)(4) of Executive
Order 12866. Executive Order 12866, reaffirmed by Executive Order
13563, requires a full economic impact analysis only for "economically
significant" rules, which are defined in Section 3(f)(1) of Executive
Order 12866 as rules that may "[h]ave 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." The rule is procedural and interpretative
in nature. Because it simply implements procedures necessitated by
enactment of section 18C of the FLSA, the rule is expected to have a
negligible economic impact and no economic impact analysis under
Section 6(a)(3)(C) of Executive Order 12866 has been prepared. For the
same reason, and the fact that no notice of proposed rulemaking has
been published, the rule does not require a Section 202 statement under
the Unfunded Mandates Reform Act of 1995. 2 U.S.C. 1531 et seq.
Finally, this rule does not have "federalism implications," in that
it does not have "substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government" and therefore is not subject to Executive Order 13132
(Federalism).
VII. Regulatory Flexibility Analysis
NFIB and the Chamber commented that the IFR did not comply with the
requirements of the Regulatory Flexibility Act (RFA) and that OSHA
should have produced an Initial Regulatory Flexibility Analysis (IRFA).
NFIB also asserts that a Small Business Advocacy Review panel is
warranted. OSHA disagrees. 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 RFA.
See SBA Office of Advocacy, A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act, at 9 (May 2012); available
at: http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf*. This
is a rule of agency procedure, practice, and interpretation within the
meaning of 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. For similar reasons, OSHA does not agree
that a Small Business Advocacy Review panel is warranted.
List of Subjects in 29 CFR Part 1984
Administrative practice and procedure, Employment, Health care,
Investigations, Reporting and recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under the direction and control of David
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC, on October 5, 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 1984
is revised to read as follows:
PART 1984--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER SECTION 1558 OF THE AFFORDABLE CARE ACT
Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1984.100 Purpose and scope.
1984.101 Definitions.
1984.102 Obligations and prohibited acts.
1984.103 Filing of retaliation complaint.
1984.104 Investigation.
1984.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1984.106 Objections to the findings and the preliminary order and
requests for a hearing.
1984.107 Hearings.
1984.108 Role of Federal agencies.
1984.109 Decision and orders of the administrative law judge.
1984.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1984.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1984.112 Judicial review.
1984.113 Judicial enforcement.
1984.114 District court jurisdiction of retaliation complaints.
1984.115 Special circumstances; waiver of rules.
Authority: 29 U.S.C. 218C; Secretary of Labor'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. 1984.100 Purpose and scope.
(a) This part implements procedures under section 1558 of the
Patient Protection and Affordable Care Act, Public Law 111-148, 124
Stat. 119, which was signed into law on March 23, 2010 and was amended
by the Health Care and Education Reconciliation Act of 2010, Public Law
111-152, 124 Stat. 1029, signed into law on March 30, 2010. The terms
"Affordable Care Act" or "the Act" are used in this part to refer
to the final, amended version of the law. Section 1558 of the Act
amended the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) by
adding new section 18C. 29 U.S.C. 218C. Section 18C of the FLSA
provides protection for an employee from retaliation because the
employee has received a credit under section 36B of the Internal
Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction
(referred to as a "subsidy" in section 18C) under the Affordable Care
Act, or because the employee has engaged in protected activity
pertaining to title I of the Affordable Care Act or any amendment made
by title I of the Affordable Care Act.
(b) This part establishes procedures under section 18C of the FLSA
for the expeditious handling of retaliation complaints filed by
employees, or by persons acting on their behalf and sets forth the
Secretary's interpretations of section 18C on certain statutory issues.
These rules, together with those codified at 29 CFR part 18, set forth
the procedures under section 18C of the FLSA for submission of
complaints, investigations, issuance of findings and preliminary
orders, objections to findings and orders, litigation before
administrative law judges (ALJs), post-hearing administrative review,
and withdrawals and settlements.
Sec. 1984.101 Definitions.
As used in this part:
(a) Advance payments of the premium tax credit or "APTC" means
advance payments of the premium tax credit as defined in 45 CFR 155.20.
(b) Affordable Care Act or "the Act" means the Patient Protection
and Affordable Care Act, Public Law 111-148, 124 Stat. 119 (Mar. 23,
2010), as amended.
(c) 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 section 18C of the FLSA.
(d) Business days means days other than Saturdays, Sundays, and
federal holidays.
(e) Complainant means the employee who filed an FLSA section 18C
complaint or on whose behalf a complaint was filed.
(f) Employee means:
(1) Any individual employed by an employer. In the case of an
individual employed by a public agency, the term employee means any
individual employed by the Government of the United States: As a
civilian in the military departments (as defined in 5 U.S.C. 102), in
any executive agency (as defined in 5 U.S.C. 105), in any unit of the
judicial branch of the Government which has positions in the
competitive service, in a nonappropriated fund instrumentality under
the jurisdiction of the Armed Forces, in the Library of Congress, or in
the Government Printing Office. The term employee also means any
individual employed by the United States Postal Service or the Postal
Regulatory Commission; and any individual employed by a State,
political subdivision of a State, or an interstate governmental agency,
other than an individual who is not subject to the civil service laws
of the State, political subdivision, or agency which employs him; and
who holds a public elective office of that State, political
subdivision, or agency, is selected by the holder of such an office to
be a member of his personal staff, is appointed by such an officeholder
to serve on a policymaking level, is an immediate adviser to such an
officeholder with respect to the constitutional or legal powers of his
office, or is an employee in the legislative branch or legislative body
of that State, political subdivision, or agency and is not employed by
the legislative library of such State, political subdivision, or
agency.
(2) The term employee does not include:
(i) Any individual who volunteers to perform services for a public
agency which is a State, a political subdivision of a State, or an
interstate governmental agency, if the individual receives no
compensation or is paid expenses, reasonable benefits, or a nominal fee
to perform the services for which the individual volunteered--and such
services are not the same type of services which the individual is
employed to perform for such public agency;
(ii) Any employee of a public agency which is a State, political
subdivision of a State, or an interstate governmental agency that
volunteers to perform services for any other State, political
subdivision, or interstate governmental agency, including a State,
political subdivision or agency with which the employing State,
political subdivision, or agency has a mutual aid agreement; or
(iii) Any individual who volunteers their services solely for
humanitarian purposes to private non-profit food banks and who receive
groceries from the food banks.
(3) The term employee includes former employees and applicants for
employment.
(g) Employer includes any person acting directly or indirectly in
the interest of an employer in relation to an employee and includes a
public agency, but does not include any labor organization (other than
when acting as an employer) or anyone acting in the capacity of officer
or agent of such labor organization.
(h) Exchange means an Exchange as defined in 45 CFR 155.20.
(i) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(j) Person means an individual, partnership, association,
corporation, business trust, legal representative, or any organized
group of persons.
(k) Respondent means the employer named in the complaint who is
alleged to have violated section 18C of the FLSA.
(l) Secretary means the Secretary of Labor or person to whom
authority under section 18C of the FLSA has been delegated.
(m) Any future statutory amendments that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
(n) Any future regulatory revisions that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1984.102 Obligations and prohibited acts.
(a) No employer may discharge or otherwise retaliate against,
including, but not limited to, intimidating, threatening, restraining,
coercing, blacklisting or disciplining, any employee with respect to
the employee's compensation, terms, conditions, or privileges of
employment because the employee (or an individual acting at the request
of the employee), has engaged in any of the activities specified in
paragraphs (b)(1) through (5) of this section.
(b) An employee is protected against retaliation because the
employee (or an individual acting at the request of the employee) has:
(1) Received a credit under section 36B of the Internal Revenue
Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction under the Affordable
Care Act, or been determined by an Exchange to be eligible for advance
payments of the premium tax credit (APTC) or for a cost-sharing
reduction;
(2) Provided, caused to be provided, or is about to provide or
cause to be provided to the employer, the Federal Government, or the
attorney general of a State information relating to any violation of,
or any act or omission the employee reasonably believes to be a
violation of, any provision of title I of the Affordable Care Act (or
an amendment made by title I of the Affordable Care Act);
(3) Testified or is about to testify in a proceeding concerning
such violation;
(4) Assisted or participated, or is about to assist or participate,
in such a proceeding; or
(5) Objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any provision of
title I of the Affordable Care Act (or amendment), or any order, rule,
regulation, standard, or ban under title I of the Affordable Care Act
(or amendment).
Sec. 1984.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been
retaliated against in violation of section 18C of the FLSA may file, or
have filed by any person on the employee's behalf, a complaint alleging
such retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If the complainant is unable to file the
complaint in English, OSHA will accept the complaint in any language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the employee resides or was employed, but may be filed with any
OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days after an alleged violation of
section 18C of the FLSA occurs, any employee who believes that he or
she has been retaliated against in violation of that section may file,
or have filed by any person on the employee's behalf, a complaint
alleging such retaliation. The date of the postmark, facsimile
transmittal, electronic communication transmittal, telephone call,
hand-delivery, delivery to a third-party commercial carrier, or in-
person filing at an OSHA office will be considered the date of filing.
The time for filing a complaint may be tolled for reasons warranted by
applicable case law. For example, OSHA may consider the time for filing
a complaint equitably tolled if a complainant mistakenly files a
complaint with another agency instead of OSHA within 180 days after
becoming aware of the alleged violation.
Sec. 1984.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA
will notify the respondent of the filing of the complaint, of the
allegations contained in the complaint, and of the substance of the
evidence supporting the complaint. Such materials will be redacted, if
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, et
seq., and other applicable confidentiality laws. OSHA will also notify
the respondent of its rights under paragraphs (b) and (f) of this
section and Sec. 1984.110(e). OSHA will provide an unredacted copy of
these same materials to the complainant (or complainant's legal counsel
if complainant is represented by counsel) and to the appropriate office
of the federal agency charged with the administration of the general
provisions of the Affordable Care Act under which the complaint is
filed: Either the Internal Revenue Service of the United States
Department of the Treasury (IRS), the United States Department of
Health and Human Services (HHS), or the Employee Benefits Security
Administration of the United States Department of Labor (EBSA).
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
and the complainant each may submit to OSHA a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent and the complainant each may request a meeting
with OSHA to present its position.
(c) During the investigation, OSHA will request that each party
provide the other parties to the whistleblower complaint with a copy of
submissions to OSHA that are pertinent to the whistleblower complaint.
Alternatively, if a party does not provide its submissions to OSHA to
the other party, OSHA will provide them to the other party (or the
party's legal counsel if the party is represented by counsel) at a time
permitting the other party an opportunity to respond. Before providing
such materials to the other party, OSHA will redact them, if necessary,
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. OSHA will also provide each party with
an opportunity to respond to the other party's submissions.
(d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
(e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that a protected activity was a contributing
factor in the adverse action alleged in the complaint.
(2) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity;
(ii) The respondent knew or suspected that the employee engaged in
the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse action.
(3) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the adverse action. The burden may be
satisfied, for example, if the complaint shows that the adverse action
took place shortly after the protected activity, or at the first
opportunity available to respondent, giving rise to the inference that
it was a contributing factor in the adverse action. If the required
showing has not been made, the complainant (or the complainant's legal
counsel, if complainant is represented by counsel) will be so notified
and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, further investigation of
the complaint will not be conducted if the respondent demonstrates by
clear and convincing evidence that it would have taken the
same adverse action in the absence of the complainant's protected
activity.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, OSHA will proceed
with the investigation. The investigation will proceed whenever it is
necessary or appropriate to confirm or verify the information provided
by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1984.105, if OSHA has reasonable cause, on the
basis of information gathered under the procedures of this part, to
believe that the respondent has violated section 18C of the FLSA and
that preliminary reinstatement is warranted, OSHA will contact the
respondent (or the respondent's legal counsel if respondent is
represented by counsel) to give notice of the substance of the relevant
evidence supporting the complainant's allegations as developed during
the course of the investigation. This evidence includes any witness
statements, which will be redacted to protect the identity of
confidential informants where statements were given in confidence; if
the statements cannot be redacted without revealing the identity of
confidential informants, summaries of their contents will be provided.
The complainant will also receive a copy of the materials that must be
provided to the respondent under this paragraph. Before providing such
materials to the complainant, OSHA will redact them, if necessary,
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The respondent will be given the
opportunity to submit a written response, to meet with the
investigator, to present statements from witnesses in support of its
position, and to present legal and factual arguments. The respondent
must present this evidence within 10 business days of OSHA's
notification pursuant to this paragraph, or as soon afterwards as OSHA
and the respondent can agree, if the interests of justice so require.
Sec. 1984.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether or not
there is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of section 18C of the FLSA.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief
to the complainant. The preliminary order will require, where
appropriate: Affirmative action to abate the violation; reinstatement
of the complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney and expert witness
fees) reasonably 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 will
also require the respondent to submit appropriate documentation to the
Social Security Administration allocating any back pay award to the
appropriate period.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings and, where appropriate, the preliminary order will
be sent by certified mail, return receipt requested (or other means
that allow OSHA to confirm receipt), to all parties of record (and each
party's legal counsel if the party is represented by counsel). The
findings and, where appropriate, the preliminary order will inform the
parties of the right to object to the findings and/or order and to
request a hearing, and of the right of the respondent to request an
award of attorney fees not exceeding $1,000 from the administrative law
judge (ALJ), regardless of whether the respondent has filed objections,
if respondent alleges that the complaint was frivolous or brought in
bad faith. The findings, and where appropriate, the preliminary order,
also will give the address of the Chief Administrative Law Judge, U.S.
Department of Labor. At the same time, the Assistant Secretary will
file with the Chief Administrative Law Judge a copy of the original
complaint and a copy of the findings and/or order.
(c) The findings and any preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and/or a request for hearing has been timely filed as
provided at Sec. 1984.106. 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. 1984.106 Objections to the findings and the preliminary order
and requests for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and/or preliminary order, or a respondent alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney fees under section 18C of the FLSA, must file any objections
and/or a request for a hearing on the record within 30 days of receipt
of the findings and preliminary order pursuant to Sec. 1984.105(b).
The objections, request for a hearing, and/or request for attorney fees
must be in writing and state whether the objections are to the findings
and/or the preliminary order, and/or whether there should be an award
of attorney fees. The date of the postmark, facsimile transmittal, or
electronic communication transmittal is considered the date of filing;
if the objection is filed in person, by hand delivery or other means,
the objection is filed upon receipt. Objections must be filed with the
Chief Administrative Law Judge, U.S. Department of Labor, and copies of
the objections must be mailed at the same time to the other parties of
record, the OSHA official who issued the findings and order, the
Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor.
(b) If a timely objection is filed, all provisions of the
preliminary order will be stayed, except for the portion requiring
preliminary reinstatement, which will not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the respondent's receipt of the findings and
preliminary order, regardless of any objections to the order. The
respondent may file a motion with the Office of Administrative Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement, which shall be granted only based on exceptional
circumstances. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or the
preliminary order will become the final decision of the Secretary, not
subject to judicial review.
Sec. 1984.107 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. 1984.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding and must be served with copies of all documents in the case.
At the Assistant Secretary's discretion, the Assistant Secretary may
participate as a party or as amicus curiae at any time at any stage of
the proceeding. This right to participate includes, but is not limited
to, the right to petition for review of a decision of an ALJ, including
a decision approving or rejecting a settlement agreement between the
complainant and the respondent.
(2) Parties must send copies of documents to OSHA and to the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, only upon request of OSHA, or when OSHA is participating in
the proceeding, or when service on OSHA and the Associate Solicitor is
otherwise required by these rules.
(b) The IRS, HHS, and EBSA, if interested in a proceeding, may
participate as amicus curiae at any time in the proceeding, at those
agencies' discretion. At the request of the interested federal agency,
copies of all documents in a case must be sent to the federal agency,
whether or not the agency is participating in the proceeding.
Sec. 1984.109 Decision and orders of the administrative law judge.
(a) The decision of the administrative law judge (ALJ) will contain
appropriate findings, conclusions, and an order pertaining to the
remedies provided in paragraph (d) of this section, as appropriate. A
determination that a violation has occurred may be made only if the
complainant has demonstrated by a preponderance of the evidence that
protected activity was a contributing factor in the adverse action
alleged in the complaint.
(b) If the complainant has satisfied the burden set forth in the
prior paragraph, relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that it would have taken
the same adverse action in the absence of any protected activity.
(c) Neither OSHA's determination to dismiss a complaint without
completing an investigation pursuant to Sec. 1984.104(e) nor OSHA's
determination to proceed with an investigation is subject to review by
the ALJ, and a complaint may not be remanded for the completion of an
investigation or for additional findings on the basis that a
determination to dismiss was made in error. Rather, if there otherwise
is jurisdiction, the ALJ will hear the case on the merits or dispose of
the matter without a hearing if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will require, where appropriate:
Affirmative action to abate the violation; reinstatement of the
complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions, and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney and expert witness
fees) reasonably 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 order will also require
the respondent to submit appropriate documentation to the Social
Security Administration allocating any back pay award to the
appropriate period.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ALJ determines that a complaint was
frivolous or was brought in bad faith, the ALJ may award to the
respondent reasonable attorney fees, not exceeding $1,000.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring
reinstatement or lifting an order of reinstatement by the Assistant
Secretary will be effective immediately upon receipt of the decision by
the respondent. All other portions of the ALJ's order will be effective
14 days after the date of the decision unless a timely petition for
review has been filed with the Administrative Review Board (ARB), U.S.
Department of Labor. The decision of the ALJ will become the final
order of the Secretary unless a petition for review is timely filed
with the ARB and the ARB accepts the petition for review.
Sec. 1984.110 Decision and orders of the Administrative Review Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the Administrative
Review Board (ARB), which has been delegated the authority to act for
the Secretary and issue final decisions under this part. The parties
should identify in their petitions for review the legal conclusions or
orders to which they object, or the objections may be deemed waived. A
petition must be filed within 14 days of the date of the decision of
the ALJ. The date of the postmark, facsimile transmittal, or electronic
communication transmittal will be considered to be the date of filing;
if the petition is filed in person, by hand delivery or other means,
the petition is considered filed upon receipt. The petition must be
served on all parties and on the Chief Administrative Law Judge at the
time it is filed with the ARB. Copies of the petition for review must
be served on the Assistant Secretary, and on the Associate Solicitor,
Division of Fair Labor Standards, U.S. Department of Labor.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the ALJ will become the final
order of the Secretary unless the ARB, within 30 days of the filing of
the petition, issues an order notifying the parties that the case has
been accepted for review. If a case is accepted for review, the
decision of the ALJ will be inoperative unless and until the ARB issues
an order adopting the decision, except that any order of reinstatement
will be effective while review is conducted by the ARB, unless the ARB
grants a motion by the respondent to stay that order based on exceptional
circumstances. The ARB will specify the terms under which any briefs are
to be filed. The ARB will review the factual determinations of the ALJ
under the substantial evidence standard. If no timely petition for review
is filed, or the ARB denies review, the decision of the ALJ will become
the final order of the Secretary. If no timely petition for review is
filed, the resulting final order is not subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be 14 days after
the date of the decision of the ALJ, unless a motion for
reconsideration has been filed with the ALJ in the interim. In such
case, the conclusion of the hearing is the date the motion for
reconsideration is ruled upon or 14 days after a new decision is
issued. The ARB's final decision will be served upon all parties and
the Chief Administrative Law Judge by mail. The final decision will
also be served on the Assistant Secretary, and on the Associate
Solicitor, Division of Fair Labor Standards, 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 the
complainant's former position, together with the compensation
(including back pay and interest), terms, conditions, and privileges of
the complainant's employment; and payment of compensatory damages,
including, at the request of the complainant, the aggregate amount of
all costs and expenses (including attorney and expert witness fees)
reasonably 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 order will also require the
respondent to submit appropriate documentation to the Social Security
Administration allocating any back pay award to the appropriate period.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint. If, upon the
request of the respondent, the ARB determines that a complaint was
frivolous or was brought in bad faith, the ARB may award to the
respondent reasonable attorney fees, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1984.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
(a) At any time prior to the filing of objections to the Assistant
Secretary's findings and/or preliminary order, a complainant may
withdraw his or her complaint by notifying 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
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1984.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
order become final, a party may withdraw objections to the Assistant
Secretary's findings and/or order by filing a written withdrawal with
the ALJ. If the case is on review with the ARB, a party may withdraw a
petition for review of an ALJ's decision at any time before that
decision becomes final by filing a written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will determine whether to approve
the withdrawal of the objections or the petition for review. If the ALJ
approves a request to withdraw objections to the Assistant Secretary's
findings and/or order, and there are no other pending objections, the
Assistant Secretary's findings and/or order will become the final order
of the Secretary. If the ARB approves a request to withdraw a petition
for review of an ALJ decision, and there are no other pending petitions
for review of that decision, the ALJ's decision will become the final
order of the Secretary. If objections or a petition for review are
withdrawn because of settlement, the settlement must be submitted for
approval in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
OSHA, the complainant, and the respondent agree to a settlement. OSHA's
approval of a settlement reached by the respondent and the complainant
demonstrates OSHA's consent and achieves the consent of all three
parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the ALJ if the case is before the ALJ, or
by the ARB if the ARB has accepted the case for review. A copy of the
settlement will be filed with the ALJ or the ARB, as appropriate.
(e) Any settlement approved by OSHA, the ALJ, or the ARB will
constitute the final order of the Secretary and may be enforced in
United States district court pursuant to Sec. 1984.113.
Sec. 1984.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1984.109 and 1984.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the complainant
resided on the date of the violation.
(b) A final order is not subject to judicial review in any criminal
or other civil proceeding.
(c) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the ALJ, will be transmitted
by the ARB or the ALJ, as the case may be, to the appropriate court
pursuant to the Federal Rules of Appellate Procedure and the local
rules of such court.
Sec. 1984.113 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 section 18C of the FLSA, 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 or in the United States district
court for the District of Columbia. 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 section
18C of the FLSA, a person on whose behalf the order was issued may file
a civil action seeking enforcement of the order in the appropriate
United States district court.
Sec. 1984.114 District court jurisdiction of retaliation complaints.
(a) 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, either:
(1) Within 90 days after receiving a written determination under
Sec. 1984.105(a) provided that there has been no final decision of the
Secretary; or
(2) If there has been no final decision of the Secretary within 210
days of the filing of the complaint.
(3) At the request of either party, the action shall be tried by
the court with a jury.
(b) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec.
1984.109. The court shall have jurisdiction to grant all relief
necessary to make the employee whole, including injunctive relief and
compensatory damages, including:
(1) Reinstatement with the same seniority status that the employee
would have had, but for the discharge or retaliation;
(2) The amount of back pay, with interest; and
(3) Compensation for any special damages sustained as a result of
the discharge or retaliation, including litigation costs, expert
witness fees, and reasonable attorney fees.
(c) Within seven days after filing a complaint in federal court, a
complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. In all cases, a copy of the complaint also must be
served on the OSHA official who issued the findings and/or preliminary
order, the Assistant Secretary, and the Associate Solicitor, Division
of Fair Labor Standards, U.S. Department of Labor.
Sec. 1984.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of this
part, or for good cause shown, the ALJ or the ARB on review may, upon
application, after three-days notice to all parties, waive any rule or
issue such orders that justice or the administration of section 18C of
the FLSA requires.
[FR Doc. 2016-24559 Filed 10-12-16; 8:45 am]
BILLING CODE 4510-26-P
