[Federal Register Volume 86, Number 169 (Friday, September 3, 2021)]
[Rules and Regulations]
[Pages 49472-49476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19071]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1977
[Docket Number: OSHA-2021-0002]
RIN 1218-AD35
Discrimination Against Employees Exercising Rights Under the
Williams-Steiger Occupational Safety and Health Act of 1970
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final interpretive rule.
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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
amending one of the rules interpreting the anti-retaliation provision
of the Occupational Safety and Health Act of 1970 (OSH Act or Act) to
clarify that the test for showing a nexus between protected activity
and adverse action is ``but-for'' causation.
DATES: This final interpretive rule is effective on September 3, 2021.
FOR FURTHER INFORMATION CONTACT: Rob Swick, Directorate of
Whistleblower Protection Programs, Occupational Safety and Health
Administration, U.S. Department of Labor; telephone: (202) 693-2199;
email: OSHA.DWPP@dol.gov.
SUPPLEMENTARY INFORMATION: OSHA is revising the interpretive rule at 29
CFR 1977.6(b), which addresses causation under the anti-retaliation
(colloquially ``whistleblower'') provision of the OSH Act, section
11(c), 29 U.S.C. 660(c). For the reasons explained in the following
sections, the agency is removing outdated language to clarify that the
only means by which the Secretary of Labor (Secretary) may prove a
causal connection between protected activity and adverse action under
the OSH Act is to show that ``but for'' the protected activity the
employee would not have suffered the adverse action.
I. Background
Congress enacted the OSH Act, to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources. 29 U.S.C. 651(b). To
achieve this goal, Congress authorized the Secretary, among other
things, to set and enforce occupational safety and health standards.
The Secretary's assigned enforcement powers, including the power to
inspect workplaces and issue citations and notifications of proposed
penalties to employers who violate the standards developed under the
OSH Act, have been delegated to OSHA. 29 U.S.C. 657(a), 658, 666;
Secretary of Labor's Order No. 08-2020 (85 FR 58393, September 18,
2020).
In addition, the Act affords employees and their representatives
certain rights. For example, section 8(f)(1) of the Act provides
employees and representatives of employees who believe that a violation
of a safety or health standard that threatens physical harm exists or
that an imminent danger exists with the right to request an inspection
by giving notice to the Secretary or his authorized representative of
such violation or danger. 29 U.S.C. 657(f)(1). Such employee complaints
aid the agency in accomplishing the goal of assuring safe
and healthful working conditions by alerting the agency to potential
hazards that may not have been otherwise discovered and, thus, allowing
those hazards to be corrected.
Congress also included an anti-retaliation (colloquially
``whistleblower'') provision in the Act to protect individual employees
from retaliation for reporting safety deficiencies or participating in
OSH Act proceedings. 29 U.S.C. 660(c)(1). This provision, which is
included in section 11(c)(1), provides that no person may discharge or
otherwise discriminate--in other words, take an adverse action--against
any employee ``because'' such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related
to the Act, or has testified or was about to testify in any such
proceeding, or because of the exercise by such employee on behalf of
himself or herself or others of any right afforded by the Act. 29
U.S.C. 660(c)(1).
Section 11(c)(2) contains the remedies for any such retaliation.
Specifically, section 11(c)(2) provides that if an employee believes
that they have been discharged, or otherwise discriminated against, in
violation of section 11(c)(1), such an employee may file a complaint
with the Secretary. 29 U.S.C. 660(c)(2). The Secretary, upon receipt of
such a complaint, ``shall cause such investigation to be made as he
deems appropriate,'' and if upon investigation, the Secretary
determines that section 11(c) has been violated, the Secretary shall
bring suit in district court against any person who discharges or
discriminates against any employee for the exercise of protected rights
under the OSH Act. 29 U.S.C. 660(c)(2). Section 11(c)(2) also provides
district courts with jurisdiction over such actions and empowers them
for cause shown to ``order all appropriate relief, including rehiring
or reinstatement of the employee to his or her former position with
back pay.'' 29 U.S.C. 660(c)(2).
In 1973, OSHA issued rules implementing and interpreting section
11(c). 38 FR 2681 (Jan. 29, 1973). The rules were published in 29 CFR
part 1977. Their purpose was to make available in one place
interpretations of section 11(c) which guide the Secretary in carrying
out the provision unless and until otherwise directed by authoritative
decisions of the courts, or concluding, upon reexamination of an
interpretation, that it is incorrect. 29 CFR 1977.2.
As noted above, section 11(c) protects employees from retaliation,
i.e., adverse action, for engaging in certain delineated activities.
See 29 CFR 1977.3 (listing activities protected by section 11(c)).
Those activities are known as ``protected activities.'' However, as
discussed in 29 CFR 1977.6(a), adverse actions taken by an employer may
be predicated upon ``nondiscriminatory grounds'' and such actions would
not necessarily violate section 11(c). Or, put another way, section
11(c) of the OSH Act does not prohibit an employer from discharging or
disciplining an employee for engaging in ``unprotected activities,''
i.e., discharge or discipline for ``legitimate reasons'' or ``non-
prohibited considerations.'' See 29 CFR 1977.6(a).
Section 1977.6(b) recognizes that an employer's adverse action
against an employee may have more than one cause. For example, an
employer's termination of an employee may be motivated in part by the
employee's complaint about an unsafe workplace condition and in part by
the employee's poor work performance. As stated in section 1977.6(b),
an employer's mixed motivation for an adverse action does not
necessarily invalidate an employee's section 11(c) complaint. See 29
CFR 1977.6(b) (``[T]o establish a violation of section 11(c), [a]n
employee's engagement in protected activity need not be the sole
consideration behind discharge or other adverse action.'').
Section 1977.6(b) provided two ways in which a causal connection
between protected activity and adverse action could be established: (1)
If protected activity was a substantial reason for the adverse action;
or (2) if the adverse action would not have taken place ``but for''
engagement in protected activity. In support of this two-pronged test,
the regulation cited two court of appeals decisions finding violations
of the whistleblower provision of the Fair Labor Standards Act, 29
U.S.C. 215(a)(3), prohibiting discharge or other discrimination against
an employee ``because'' such employee has filed a complaint under or
related to that statute or engaged in related protected activities.
Mitchell v. Goodyear Tire & Rubber Co., 278 F.2d 562, 565 (8th Cir.
1960) (employee would not have been fired ``but for'' his complaint to
the Wage-Hour Division); Goldberg v. Bama Mfg. Corp., 302 F.2d 152 (5th
Cir. 1962).
Since the issuance of the section 11(c) interpretive rules in 1973,
the test under other statutes for determining whether an adverse action
occurred ``because of'' a protected activity, i.e., the causation test,
has gone through a number of changes. In 2009, the Supreme Court
considered the causation test under the Age Discrimination in
Employment Act (ADEA), which makes it unlawful for an employer to take
adverse action against an employee ``because of such individual's
age.'' 29 U.S.C. 623(a); Gross v. FBL Financial Services, Inc., 557
U.S. 167 (2009). In so doing, the Court explained that the ordinary
meaning of the ADEA's requirement that an employer took adverse action
``because of'' age is that age was the ``reason'' that the employer
decided to act. Therefore, the Court held that to establish a disparate
treatment claim under the plain language of the ADEA, the plaintiff had
to prove that age was the ``but for'' cause of the employer's adverse
action; the burden of persuasion does not shift to the employer to show
that it would have taken the same action regardless of age. Gross, 557
U.S. at 175-77, 180.
The Gross decision was followed in Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338 (2013). In that case, the Supreme Court
interpreted the anti-retaliation provision of Title VII, which bans
discrimination against an employee ``because'' he or she has opposed
any practice made unlawful by Title VII or engaged in related
activities. In the decision, the Court relied first on the default rule
in tort law which applies absent contrary statutory language, i.e.,
that a plaintiff must show that but for the defendant's conduct the
harm would not have occurred. Nassar, 570 U.S. at 348, 350. The Court
then reiterated what it had held in Gross--that the ordinary meaning of
the word ``because of'' means that the plaintiff must prove but-for
causation. Id. at 350. It emphasized that although Gross concerned an
interpretation of the ADEA, it had some persuasive force because of its
textual basis and the concern in both cases with the meaning of the
word ``because.'' Id. at 351. Therefore, the Court held that because
there was no meaningful difference between the text in the ADEA and
that in the Title VII anti-retaliation provision, the proper
conclusion, as in Gross, is that the Title VII anti-retaliation
provision requires a showing of but-for causation. Id. at 352.
The Supreme Court has continued to apply the ``but for''
formulation as the proper test for causation for a variety of statutes
in which causation is an element. For example, most recently, in
Bostock v. Clay County, Georgia, 140 S Ct. 1731, 1739 (2020), the
Supreme Court held that the phrase ``because of'' means but-for
causation and then offered more direction on the meaning of the but-for
causation standard. The dispute in Bostock arose under Title VII of the
Civil Rights Act of 1964, which makes it unlawful for an employer to
fail or refuse to hire or to discharge any individual, or otherwise to
discriminate
against any individual, ``because of'' such individual's race, color,
religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1). Citing
Nassar, the Supreme Court reiterated that Title VII's ``because of''
test incorporates the ``simple'' and ``traditional'' standard of but-
for causation. Bostock, 140 S Ct. at 1738. The Court explained that
but-for causation is established whenever a particular outcome would
not have happened ``but for'' the purported cause. Id. at 1739 (citing
Gross, 557 U.S. at 176). Put another way, the Court added, the but-for
causation test ``directs us to change one thing at a time and see if
the outcome changes. If it does, we have found a but-for cause.'' Id.
at 1739. Importantly, the Court made clear that events often have
multiple but-for causes. Id. The but-for causation test does not
require that the prohibited factor be the sole or primary reason for
the adverse action. Id.
Federal courts of appeals have followed Nassar and Gross in
applying the but-for causation test under other statutes using the word
``because.'' See, e.g., Lestage v. Coloplast Corp., 982 F.3d 37, 46
(1st Cir. 2020) (joining the Third, Fourth, Fifth, and Eleventh Circuit
Courts of Appeals in holding that the False Claims Act's prohibition
against discriminating against an employee ``because of'' that
employee's protected conduct is a but-for standard); Natofsky v. City
of New York, 921 F.3d 337, 347-50, 348 (2d Cir. 2019), cert. denied,
140 S Ct. 2668 (2020) (holding that the Rehabilitation Act incorporates
by reference the Americans with Disabilities Act's (ADA) ``but-for''
causation standard; ``Gross and Nassar dictate our decision here.'');
Acosta v. Brain, 910 F.3d 502, 514 (9th Cir. 2018) (assuming, without
deciding, that the but-for causation standard applies to cases under
section 510 of the Employee Retirement Income Security Act, which uses
the word ``because'').
As noted above, section 11(c)(1) of the OSH Act provides that
``[n]o person shall discharge or in any manner discriminate against any
employee because such employee has'' engaged in certain protected
activities. 29 U.S.C. 660(c)(1). After the Nassar decision, OSHA
recognized that the correct causation standard under this provision
would be ``but-for.'' Therefore, OSHA included the but-for causation
standard in the 2016 revision to the Whistleblower Investigations
Manual (WIM).\1\ See https://www.whistleblowers.gov/manual.
Specifically, the agency revised the WIM to require that in a section
11(c) case OSHA must have reasonable cause to believe that the employer
would not have carried out the adverse action ``but for'' the protected
activity (Chapter 3 par. V.B.i.).
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\1\ The WIM outlines procedures, and other information relative
to the handling of retaliation complaints under the various
whistleblower statutes delegated to OSHA.
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Similarly, OSHA included the but-for causation standard in the 2018
OSHA Fact Sheet, Filing Whistleblower Complaints under Section 11(c) of
the OSH Act of 1970. See https://www.osha.gov/Publications/OSHA3812.pdf. The Fact Sheet states that a person taking adverse action
against an employee may be found to have violated section 11(c) if the
employee would not have experienced the adverse action ``but for''
protected activity. OSHA's Investigator's Desk Aid to the Occupational
Safety and Health Act (OSH Act) Whistleblower Provision, issued in
2019, also states that the Secretary has the burden of proving but-for
causation in a section 11(c) case. See https://www.osha.gov/sites/default/files/11cDeskAid.pdf.
Discussion of Update to 29 CFR 1977.6(b)
This final interpretive rule updates OSHA's 1973 section 11(c)
interpretive rule at 29 CFR 1977.6(b) to bring it in line with the
Supreme Court's holdings in Gross, Nassar, and Bostock. Prior to this
rule, the provision had not yet been updated to reflect the newer
causation test compelled by the Supreme Court; until the revision in
this rule, the interpretive rule stated in part that if protected
activity was merely a ``substantial reason'' for the adverse action,
section 11(c) has been violated. That interpretation is not in
alignment with Gross, Nassar, and Bostock, and it is inconsistent with
OSHA's policy documents stating (on the basis of Nassar) that but-for
causation must be shown to prove a section 11(c) violation.
To bring the interpretive rule in line with Supreme Court precedent
and OSHA's current interpretation, the agency is revising Sec.
1977.6(b) in three ways. First, and most importantly, this rule revises
the second sentence of the provision by removing the ``substantial
reason'' language. As explained above, that sentence previously
provided two ways in which a causal connection between protected
activity and adverse action could be established in mixed motive cases:
(1) If protected activity was a substantial reason for the adverse
action; or (2) if the adverse action would not have taken place ``but
for'' engagement in protected activity. By removing the ``substantial
reason'' option, OSHA is clarifying that to prevail in a section 11(c)
case the Secretary must show that but for the protected activity the
employee would not have suffered the adverse action.
Second, this rule deletes the citations to the two cases that
appeared after the previous second sentence (Mitchell v. Goodyear Tire
& Rubber Co., 278 F.2d 562, 565 (8th Cir. 1960) and Goldberg v. Bama
Mfg. Corp., 302 F.2d 152 (5th Cir. 1962)) and the parenthetical
accompanying the reference to Mitchell and replaces those cases with
citations to Bostock (Bostock v. Clay County, Georgia, U.S., 140 S Ct.
1731, 1739 (2020)) and Nassar (Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013)). Deleting the references to the older cases should
reduce the chance of any confusion about the appropriate causation
standard. In addition, the updated citations should help employers and
other stakeholders easily access information about the relevant
causation standard should they wish to know more.
Third, this rule amends the first sentence of Sec. 1977.6(b) by
adding the words ``or primary'' before the word ``consideration.''
Prior to this change, that sentence stated: ``At the same time, to
establish a violation of section 11(c), the employee's engagement in
protected activity need not be the sole consideration behind discharge
or other adverse action.'' Adding ``or primary'' further emphasizes the
Supreme Court's holdings and reflects the language in Bostock that the
protected factor need not be the primary reason for the adverse action.
See Bostock, 140 S Ct. at 1739.
In addition, OSHA is making one clarifying change to the last
sentence of 29 CFR 1977.6(b), which is unrelated to the issues
regarding the but-for causation standard. The previous version of that
sentence stated that the issue as to whether a ``discharge'' was
because of protected activity will have to be determined on the basis
of the facts in the particular case. This rule revises that sentence to
add the words ``or other adverse action'' to reflect the full scope of
section 11(c)'s prohibition against retaliation.
OSHA notes that these changes do not affect the interpretation in
29 CFR 1977.6(b) that the employee's engagement in protected activity
need not be the sole consideration for the adverse action in order for
a violation of section 11(c) to be established. That language is
consistent with Bostock. See 140 S Ct. at 1739. Likewise, this revision
does not affect any of the whistleblower provisions of other statutes
enforced by OSHA that have special language on the
proof of causation in clarifying the word ``because.'' \2\
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\2\ OSHA enforces other whistleblower provisions under which a
violation is proved if it has been shown by a preponderance of the
evidence that protected activity was a contributing factor in the
adverse action, but relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that the adverse
action would have been taken in the absence of the protected
activity. An example of one of these provisions is the whistleblower
provision of the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (AIR21). The specific language on causation is
set forth at 49 U.S.C. 42121(b)(2)(B)(iii) and (iv).
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II. Paperwork Reduction Act
This rule does not require any collection of information within the
meaning of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
III. Administrative Procedure Act
The notice and comment rulemaking procedures of 5 U.S.C. 553, a
provision of the Administrative Procedure Act (APA), do not apply ``to
interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). This rule
is an interpretive rule compelled by Supreme Court case law. Therefore,
publication in the Federal Register of a notice of proposed rulemaking
and request for comments was not required. Furthermore, because this
rule is interpretive, 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.
IV. State Plans
Pursuant to section 18 of the Act, 29 U.S.C. 667, a State may
assume responsibility for the promulgation and enforcement of
occupational safety and health standards relating to any issue with
respect to which a Federal standard has been promulgated if OSHA
approves a plan submitted by the State. To be approved, the State Plan
must provide for standards, and the enforcement of those standards,
which are at least as effective as Federal OSHA standards and
enforcement. 29 U.S.C. 667(c)(2). One of the mandatory criteria for
``at least as effective'' enforcement is a provision, similar to
section 11(c), for necessary and appropriate protection to an employee
against discharge or discrimination because the employee has filed a
complaint, testified, or otherwise acted to exercise rights under the
Act for himself or herself or others. 29 CFR 1902.4(c)(2)(v) and
1956.11(c)(2)(v). This provision must be enforced at least as
effectively as Federal OSHA enforces section 11(c). 29 CFR 1902.3(d)
(provisions of a State Plan must be enforced as effectively as Federal
OSHA enforces analogous provisions); 29 CFR 1956.10(d) (similar
provision for State Plans which cover only State and local government
employees).
OSHA is revising the interpretive rule regarding the causal
connection between an employee's protected activity and the discharge
or other adverse action needed to establish a violation of section
11(c) of the OSH Act. This revised interpretive rule (interpreting the
word ``because'' in section 11(c) to mean ``but for'' causation) is
narrower than OSHA's prior interpretive rule (which merely required
that the protected activity be a ``substantial reason'' for the adverse
action). A State Plan, acting under State law, is not obligated to
follow the causation test adopted by the United States Supreme Court in
interpreting Federal statutes. Thus, a State Plan would not be required
to adopt this change in order to remain at least as effective as
Federal OSHA. The State's test for establishing causation under the
occupational safety and health anti-retaliation provision must not be
less effective than the Federal ``but for'' causation test that this
rule establishes. Thus, the State Plan test cannot further narrow the
causation requirement beyond ``but for'' causation.
Of the 28 States and territories with OSHA-approved State Plans, 22
cover State and local government, as well as private-sector, employees:
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington,
and Wyoming. The remaining five states and one territory cover only
State and local government employees: Connecticut, Illinois, Maine, New
Jersey, New York, and the Virgin Islands.
V. Federalism
The agency reviewed this rule in accordance with the most recent
Executive order on Federalism, Executive Order 13132, which requires
that Federal agencies, to the extent possible, refrain from limiting
State policy options, consult with States before taking actions that
would restrict States' policy options, and take such actions only when
clear constitutional authority exists and the problem is of national
scope (64 FR 43255). The final rule involves an interpretive regulation
issued under sections 8 and 11 of the OSH Act (29 U.S.C. 657, 660) and
not an ``occupational safety and health standard'' issued under section
6 of the OSH Act (29 U.S.C. 655). Therefore, pursuant to section 18 of
the OSH Act (29 U.S.C. 667(a)), the rule does not preempt state law.
The effect of the final rule on State Plans is discussed in section IV,
State Plans.
VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995
The Department has concluded that this rule is not a ``significant
regulatory action'' within the meaning of section 3(f)(4) of Executive
Order 12866, as reaffirmed by Executive Order 13563, because it is not
likely to: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866. Therefore, no regulatory impact analysis has been prepared.
OSHA has also determined that this interpretive rule will not
impose costs of more than $100 million per year and is not a
significant regulatory action within the meaning of section 202 of the
Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532 and does not
meet the definition of a ``Federal intergovernmental mandate'' within
the meaning of section 421(f) of the UMRA (2 U.S.C. 658(5)).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking procedures of section 553 of the
APA do not apply ``to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice.'' 5
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment
requirements at 5 U.S.C. 553 are also exempt from the Regulatory
Flexibility Act (RFA) (see 5 U.S.C. 604(a); Small Business
Administration Office of Advocacy, A Guide for Government Agencies: How
to Comply with the Regulatory Flexibility Act, at 9; also found at
https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act). This is a rule of agency interpretation
within the meaning of 5 U.S.C. 553 and therefore is exempt from both
the notice and comment rulemaking procedures of
the APA and the requirements of the RFA.
List of Subjects in 29 CFR Part 1977
Administrative practice and procedure, Employment, Investigations,
Safety, Whistleblowing.
Authority and Signature
James S. Frederick, Acting Assistant Secretary for Occupational
Safety and Health, authorized the preparation of this document under
the authority granted by Secretary's Order 08-2020 (May 15, 2020).
Signed at Washington, DC.
James S. Frederick,
Acting Assistant Secretary for Occupational Safety and Health.
For the reasons stated in the preamble, OSHA amends part 1977 of
chapter XVII of title 29 as follows:
PART 1977--[AMENDED]
0
1. Revise the authority citation for part 1977 to read as follows:
Authority: 29 U.S.C. 657, 660; 5 U.S.C. 553; and Secretary of
Labor's Order No. 08-2020 (85 FR 58393), 9-83 (48 FR 35736), or 12-
71 (36 FR 8754), as applicable.
0
2. In Sec. 1977.6, revise paragraph (b) to read as follows:
Sec. 1977.6 Unprotected activities distinguished.
* * * * *
(b) At the same time, to establish a violation of section 11(c),
the employee's engagement in protected activity need not be the sole or
primary consideration behind discharge or other adverse action. If the
discharge or other adverse action would not have taken place ``but
for'' engagement in protected activity, section 11(c) has been
violated. See Bostock v. Clay County, Ga., 140 S Ct. 1731, 1739 (2020);
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). Ultimately,
the issue as to whether a discharge or other adverse action was because
of protected activity will have to be determined on the basis of the
facts in the particular case.
[FR Doc. 2021-19071 Filed 9-2-21; 8:45 am]
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