Procedures for the Handling of Retaliation Complaints Under Section 219 of the Consumer Product Safety Improvement Act of 2008, 53533-53544 [2010-21122]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 75, Number 168 (Tuesday, August 31, 2010)]
[Rules and Regulations]
[Pages 53533-53544]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21122]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1983

[Docket Number OSHA-2010-0006]
RIN 1218-AC47


Procedures for the Handling of Retaliation Complaints Under 
Section 219 of the Consumer Product Safety Improvement Act of 2008

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: This document provides the interim final text of regulations

[[Page 53534]]

governing the employee protection (or ``whistleblower'') provisions of 
the Consumer Product Safety Improvement Act of 2008 (``CPSIA''). This 
rule establishes procedures and time frames for the handling of 
retaliation complaints under CPSIA, 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) and judicial review of the Secretary's final decision.

DATES: This interim final rule is effective on August 31, 2010. 
Comments and additional materials must be submitted (post-marked, sent 
or received) by November 1, 2010.

ADDRESSES: You may submit comments and attachments electronically at 
https://www.regulations.gov, which is the Federal eRulemaking Portal. 
Follow the instructions online for making electronic submissions.
    Fax: If your submissions, including attachments, do not exceed 10 
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
    Mail, hand delivery, express mail, messenger or courier service: 
You must submit your comments and attachments to the OSHA Docket 
Office, Docket No. OSHA-2010-0006, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries 
(hand, express mail, messenger and courier service) are accepted during 
the Department of Labor's and Docket Office's normal business hours, 
8:15 a.m.-4:45 p.m., e.t.
    Instructions: All submissions must include the Agency name and the 
OSHA docket number for this rulemaking (Docket No. OSHA-2010-0006). 
Submissions, including any personal information you provide, are placed 
in the public docket without change and may be made available online at 
https://www.regulations.gov. Therefore, OSHA cautions you about 
submitting personal information such as social security numbers and 
birth dates.
    Docket: To read or download submissions or other material in the 
docket, go to https://www.regulations.gov or the OSHA Docket Office at 
the address above. All documents in the docket are listed in the https://www.regulations.gov index, however, some information (e.g., 
copyrighted material) is not publicly available to read or download 
through the Web site. All submissions, including copyrighted material, 
are available for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT: Nilgun Tolek, Director, Office of the 
Whistleblower Protection Program, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199. This is 
not a toll-free number. 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 Consumer Product Safety Improvement Act of 2008 (``CPSIA'' or 
``the Act''), Public Law 110-314, was enacted on August 14, 2008. 
Section 219 of the Act, codified at 15 U.S.C. 2087, provides protection 
to employees against retaliation by a manufacturer, private labeler, 
distributor, or retailer, because they provided 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 employees 
reasonably believe to be a violation of, any provision of an Act 
enforced by the Consumer Product Safety Commission (``Commission''), or 
any order, rule, regulation, standard, or ban under any such Act. The 
statutes enforced by the Commission include the Consumer Product Safety 
Act (``CPSA''), as amended by the CPSIA (15 U.S.C. 2051 et seq.), the 
Children's Gasoline Burn Prevention Act (Pub. L. 110-278, 122 Stat. 
2602 (2008)), the Federal Hazardous Substances Act (15 U.S.C. 1261 et 
seq.), the Flammable Fabrics Act (15 U.S.C. 1191 et seq.), the Poison 
Prevention Packaging Act (15 U.S.C. 1471 et seq.), the Refrigerator 
Safety Act (15 U.S.C. 1211 et seq.), and the Virginia Graeme Baker Pool 
and Spa Safety Act (15 U.S.C. 8001 et seq.). These rules establish 
procedures for the handling of whistleblower complaints under CPSIA.

II. Summary of Statutory Procedures

    CPSIA's whistleblower provisions include procedures that allow a 
covered employee to file, within 180 days of the alleged retaliation, a 
complaint with the Secretary of Labor (``the Secretary''). Upon receipt 
of the complaint, the Secretary must provide written notice to the 
person or persons named in the complaint alleged to have violated the 
Act (``respondent'') of the filing of the complaint, the allegations 
contained in the complaint, the substance of the evidence supporting 
the complaint, and the rights afforded the respondent throughout the 
investigation. The Secretary must then, within 60 days of receipt of 
the complaint, afford the respondent an opportunity to submit a 
response and meet with the investigator to present statements from 
witnesses, and conduct an investigation.
    The Secretary may conduct an investigation only if the complainant 
has made a prima facie showing that the protected activity was a 
contributing factor in the adverse action alleged in the complaint and 
the respondent has not demonstrated, through clear and convincing 
evidence, that the employer would have taken the same adverse action in 
the absence of that activity.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
there is reasonable cause to believe that retaliation has occurred, the 
Secretary must notify the respondent of those findings, along with a 
preliminary order that requires the respondent to: 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 costs and attorney's 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 CPSIA will stay any remedy in the 
preliminary order except for preliminary reinstatement. If a hearing 
before an ALJ is not requested within 30 days, the preliminary order 
becomes final and is not subject to judicial review.
    If a hearing is held, CPSIA 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, where

[[Page 53535]]

appropriate, will assess against the respondent a sum equal to the 
total amount of all costs and expenses, including attorney's and expert 
witness fees, reasonably incurred by the complainant for, or in 
connection with, the bringing of the complaint upon which the Secretary 
issued the order. The Secretary also may award a prevailing employer a 
reasonable attorney's fee, not exceeding $1,000, if the Secretary finds 
that the complaint is frivolous or has been brought in bad faith. 
Within 60 days of the issuance of the final order, any person adversely 
affected or aggrieved by the Secretary's final order may file an appeal 
with the United States Court of Appeals for the circuit in which the 
violation occurred or the circuit where the complainant resided on the 
date of the violation.
    CPSIA 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 provision provides that the court will have jurisdiction over the 
action without regard to the amount in controversy and that the case 
will be tried before a jury at the request of either party.

III. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of CPSIA. Responsibility for receiving and 
investigating complaints under CPSIA also has been delegated to the 
Assistant Secretary (Secretary's Order 5-2007, 72 FR 31160, June 5, 
2007). Hearings on determinations by the Assistant Secretary are 
conducted by the Office of Administrative Law Judges, and appeals from 
decisions by administrative law judges are decided by the ARB 
(Secretary's Order 1-2010 (Jan. 15, 2010), 75 FR 3924-01, (Jan. 25, 
2010)).

Subpart A--Complaints, Investigations, Findings and Preliminary Orders

Section 1983.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
CPSIA and provides an overview of the procedures covered by these 
regulations.
Section 1983.101 Definitions
    This section includes general definitions from the CPSA, which are 
applicable to the whistleblower provisions of the CPSIA, including a 
definition of the term ``consumer product.'' See 15 U.S.C. 2052(a)(5). 
The CPSA defines ``distributor'' as ``a person to whom a consumer 
product is delivered or sold for purposes of distribution in commerce, 
except that such term does not include a manufacturer or retailer of 
such product.'' 15 U.S.C. 2052(a)(8). The CPSA defines ``manufactured'' 
as ``to manufacture, produce, or assemble,'' and defines 
``manufacturer'' as ``any person who manufactures or imports a consumer 
product.'' 15 U.S.C. 2052(a)(10) and (11), respectively. ``Private 
labeler'' is defined by the CPSA as ``an owner of a brand or trademark 
on the label of a consumer product which bears a private label.'' 15 
U.S.C. 2052(a)(12). Section 2052(a)(12)(B) further provides that a 
``consumer product bears a private label if (i) the product (or its 
container) is labeled with the brand or trademark of a person other 
than a manufacturer of the product, (ii) the person with whose brand or 
trademark the product (or container) is labeled has authorized or 
caused the product to be so labeled, and (iii) the brand or trademark 
of a manufacturer of such product does not appear on such label.'' 15 
U.S.C. 2052(a)(12)(B). The CPSA defines ``retailer'' as ``a person to 
whom a consumer product is delivered or sold for purposes of sale or 
distribution by such person to a consumer.'' 15 U.S.C. 2052(a)(13).
Section 1983.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under 
CPSIA, and the conduct that is prohibited in response to any protected 
activities. For purposes of Sec.  1983.102(c), the ARB has interpreted 
the phrase ``deliberate violations'' for the purpose of denying 
protection to an employee under the Energy Reorganization Act's similar 
provision as including an element of willfulness. See Fields v. U.S. 
Dep't of Labor, Admin. Review Bd., 173 F.3d 811, 814 (11th Cir. 1999) 
(petitioners knowingly conducted unauthorized and potentially dangerous 
experiments).
Section 1983.103 Filing of Retaliation Complaint
    This section explains the requirement for filing a retaliation 
complaint under CPSIA. To be timely, a complaint must be filed within 
180 days of when the alleged violation occurs. Under Delaware State 
College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be 
when the retaliatory decision has been both made and communicated to 
the complainant. In other words, the limitations period commences once 
the employee is aware or reasonably should be aware of the employer's 
decision. Equal Employment Opportunity Commission v. United Parcel 
Service, 249 F.3d 557, 561-62 (6th Cir. 2001). Complaints filed under 
CPSIA need not be in any particular form. They may be either oral or in 
writing. If the complainant is unable to file the complaint in English, 
OSHA will accept the complaint in any language. With the consent of the 
employee, complaints may be filed by any person on the employee's 
behalf.
Section 1983.104 Investigation
    This section describes the procedures that apply to the 
investigation of CPSIA complaints. Paragraph (a) of this section 
outlines the procedures for notifying the parties and the Consumer 
Product Safety Commission 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) addresses disclosure to the complainant of respondent's 
submissions to the agency that are responsive to the complaint. 
Paragraph (d) of this section discusses confidentiality of information 
provided during investigations. Paragraph (e) of this section sets 
forth CPSIA's statutory burdens of proof. Paragraph (f) describes the 
procedures the Assistant Secretary will follow prior to the issuance of 
findings and a preliminary order when the Assistant Secretary has 
reasonable cause to believe that a violation has occurred.
    The 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. If the complainant does not 
make the prima facie showing, the investigation must be discontinued 
and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 
F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting 
framework of the ERA, which is the same as that under CPSIA, served a 
``gatekeeping function'' that ``stemm[ed] frivolous complaints''). Even 
in cases where the complainant successfully makes a prima facie 
showing, the investigation must be discontinued if the employer 
``demonstrates, by clear and convincing evidence,'' that it would have 
taken the same adverse action in the absence of the protected activity. 
Thus, the

[[Page 53536]]

Secretary must dismiss a complaint under CPSIA and not investigate (or 
cease investigating) if either: (1) The complainant fails to meet the 
prima facie showing that protected activity was a contributing factor 
in the adverse action; or (2) the employer rebuts that showing by clear 
and convincing evidence that it would have taken the same adverse 
action absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statutory burdens of proof require an employee to prove that 
the alleged protected activity was a ``contributing factor'' to the 
alleged adverse action. If the employee proves that the alleged 
protected activity was a contributing factor to the adverse action, the 
employer, to escape liability, must prove by ``clear and convincing 
evidence'' that it would have taken the same action in the absence of 
the protected activity. A contributing factor is ``any factor which, 
alone or in connection with other factors, tends to affect in any way 
the outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137, 
1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C. 
1221(e)(1)). In proving that protected activity was a contributing 
factor in the adverse action, ``a complainant need not necessarily 
prove that the respondent's articulated reason was a pretext in order 
to prevail,'' because a complainant alternatively can prevail by 
showing that the respondent's ```reason, while true, is only one of the 
reasons for its conduct,''' and that another reason was the 
complainant's protected activity. See Klopfenstein v. PCC Flow Techs. 
Holdings, Inc., No. 04-149, 2006 WL 3246904, *13 (ARB May 31, 2006) 
(discussing contributing factor test under the whistleblower provisions 
of Section 806 of the Corporate and Criminal Fraud Accountability Act 
of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 (``SOX''), 18 
U.S.C. 1514A) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 
312 (5th Cir. 2004)).
    CPSIA's burdens of proof do not address the evidentiary standard 
that applies to a complainant's proof that protected activity was a 
contributing factor in an adverse action. CPSIA simply provides that 
the Secretary may find a violation only ``if the complainant 
demonstrates'' that protected activity was a contributing factor in the 
alleged adverse action. See 15 U.S.C. 2087(b)(2)(B)(iii). It is the 
Secretary's position that the complainant must prove by a 
``preponderance of the evidence'' that his or her protected activity 
contributed to the adverse action; otherwise the burden never shifts to 
the employer to establish its defense by ``clear and convincing 
evidence.'' See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 475 
n.1 (5th Cir. 2008) (``The term `demonstrate' [under 
42121(b)(2)(B)(iii)] means to prove by a preponderance of the 
evidence.''). Once the complainant establishes that the protected 
activity was a contributing factor in the adverse action, the employer 
can escape liability only by proving by clear and convincing evidence 
that it would have reached the same decision even in the absence of the 
prohibited rationale. The ``clear and convincing evidence'' standard is 
a higher burden of proof than a ``preponderance of the evidence'' 
standard.
Section 1983.105 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. 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 attorney's 
fees not exceeding $1,000 from the ALJ, regardless of whether the 
respondent has filed objections, if the respondent alleges that the 
complaint was frivolous or brought in bad faith. If no objections are 
filed within 30 days of receipt of the findings, the findings and any 
preliminary order of the Assistant Secretary become the final decision 
and order of the Secretary. If objections are timely filed, any order 
of preliminary reinstatement will take effect, but the remaining 
provisions of the order will not take effect until administrative 
proceedings are completed.
    In appropriate circumstances, in lieu of preliminary reinstatement, 
OSHA may order that the complainant receive the same pay and benefits 
that he received prior to his termination, but not actually return to 
work. Such ``economic reinstatement'' frequently is employed in cases 
arising under Section 105(c) of the Federal Mine Safety and Health Act 
of 1977. See, e.g., Secretary of Labor on behalf of York v. BR&D 
Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (June 26, 2001). 
Congress intended that employees be preliminarily reinstated to their 
positions if OSHA finds reasonable cause that they were discharged in 
violation of CPSIA. When a violation is found, the norm is for OSHA to 
order immediate preliminary reinstatement. An employer does not have a 
statutory right to choose economic reinstatement. Rather, economic 
reinstatement is designed to accommodate situations in which evidence 
establishes to OSHA's satisfaction that reinstatement is inadvisable 
for some reason, notwithstanding the employer's retaliatory discharge 
of the employee. In such situations, actual reinstatement might be 
delayed until after the administrative adjudication is completed as 
long as the employee continues to receive his or her pay and benefits 
and is not otherwise disadvantaged by a delay in reinstatement. There 
is no statutory basis for allowing the employer to recover the costs of 
economically reinstating an employee should the employer ultimately 
prevail in the whistleblower adjudication.

Subpart B--Litigation

Section 1983.106 Objections to the Findings and the Preliminary Order 
and Request for a Hearing
    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, Washington, DC 
20001, within 30 days of receipt of the findings. The date of the 
postmark, facsimile transmittal, or e-mail communication 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 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, 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., No. 04-101, 2005 WL 2865915, *7 (ARB Oct. 31, 2005).

[[Page 53537]]

Section 1983.107 Hearings
    This section adopts the rules of practice and evidence of the 
Office of Administrative Law Judges at 29 CFR part 18. The section 
specifically provides for consolidation of hearings if both the 
complainant and respondent object to the findings and/or order of the 
Assistant Secretary. Otherwise, this section does not address 
procedural issues, e.g., place of hearing, right to counsel, 
procedures, evidence and record of hearing, oral arguments and briefs, 
and dismissal for cause, because the Office of Administrative Law 
Judges has adopted its own rules of practice that cover these matters.
Section 1983.108 Role of Federal Agencies
    Under CPSIA it is not expected that the Secretary will ordinarily 
appear as a party in the proceeding. Nevertheless, the Assistant 
Secretary, at his or her discretion, may participate as a party or 
amicus curiae at any time in the administrative proceedings. 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 we anticipate 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 Consumer Product Safety 
Commission, at its own discretion, also may participate as amicus 
curiae at any time in the proceedings.
Section 1983.109 Decision and Orders of the Administrative Law Judge
    This section sets forth the content of the decision and order of 
the ALJ, and includes the standard for finding a violation under CPSIA. 
The section further provides that the Assistant Secretary's 
determination to dismiss the complaint without an investigation or 
without a complete investigation pursuant to section 1983.104 is not 
subject to review. Thus, paragraph (c) of section 1983.109 clarifies 
that the Assistant Secretary's determinations on whether to proceed 
with an investigation under CPSIA 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 the Assistant Secretary to 
conduct an investigation or make further factual findings. A full 
discussion of the burdens of proof used by the Department of Labor to 
resolve whistleblower cases under this part is set forth above in the 
discussion of section 1983.104.
Section 1983.110 Decision of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 10 
business 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 e-mail communication 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 
will ordinarily 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 in the exceptional case, the ARB 
may grant a motion to stay an ALJ's preliminary order of reinstatement 
under CPSIA, 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 CPSIA would be appropriate 
only where the respondent can establish the necessary criteria for 
equitable injunctive relief, i.e., irreparable injury, likelihood of 
success on the merits, and a balancing of possible harms to the parties 
and the public favors a stay.

Subpart C--Miscellaneous Provisions

Section 1983.111 Withdrawal of Complaints, Objections, and Petitions 
for Review; Settlement
    This section provides for the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It also provides for approval of settlements at 
the investigative and adjudicative stages of the case.
Section 1983.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, the ARB to submit the record of proceedings to the 
appropriate court pursuant to the rules of such court.
Section 1983.113 Judicial Enforcement
    This section describes the Secretary's power under CPSIA to obtain 
judicial enforcement of orders and the terms of a settlement agreement.
    CPSIA expressly authorizes district courts to enforce orders, 
including preliminary orders of reinstatement, issued by the Secretary 
under 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 under 15 U.S.C. 2087(b)(2)(A) 
are immediately enforceable in district court under 15 U.S.C. 
2087(b)(6) and (7). Subsection 2087(b)(3)(B)(ii) provides that the 
Secretary shall order the person who has committed a violation to 
reinstate the complainant to his or her former position. Subsection 
2087(b)(2)(A) instructs the Secretary to accompany any reasonable cause 
finding that a violation occurred with a preliminary order containing 
the relief prescribed by subsection (b)(3)(B), which includes 
reinstatement. See 15 U.S.C. 2087(b)(3)(B)(ii). Subsection (b)(2)(A) 
also declares that the subsection (b)(3)(B)'s relief of reinstatement 
contained in a preliminary order is not stayed upon the filing of 
objections. 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 the statute, enforceable orders 
issued under subsection (b)(3) include preliminary

[[Page 53538]]

orders that contain the relief of reinstatement prescribed by 
subsection (b)(3)(B). This statutory interpretation is consistent with 
the Secretary's interpretation of similar language in AIR21 and SOX. 
But see Bechtel v. Competitive Technologies, Inc., 448 F.3d 469 (2d 
Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 
(W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2995 (4th 
Cir. Feb. 20, 2008)). CPSIA also permits the person on whose behalf the 
order was issued under CPSIA to obtain judicial enforcement or orders 
and the terms of a settlement agreement.
Section 1983.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth CPSIA's provisions allowing a complainant 
to bring an original de novo action in district court, alleging the 
same allegations contained in the complaint filed with OSHA, if there 
has been no final decision of the Secretary within 210 days of the 
filing of the complaint, or within 90 days after receiving a written 
determination. It also requires complainants to provide notice 15 days 
in advance of their intent to file a complaint in district court.
    It is the Secretary's position that complainants may not initiate 
an action in federal court after the Secretary issues a final decision, 
even if the date of the final decision is more than 210 days after the 
filing of the complaint. The purpose of the ``kick-out'' provisions is 
to aid the complainant in receiving a prompt decision. That goal is not 
implicated in a situation where the complainant already has received a 
final decision from the Secretary. In addition, 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.
Section 1983.115 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 CPSIA requires.

IV. Paperwork Reduction Act

    This rule does not contain a reporting provision that is subject to 
review by the Office of Management and Budget (``OMB'') under the 
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13).

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of Section 553 of the 
Administrative Procedure Act (``APA'') do not apply ``to interpretative 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency 
procedure and practice within the meaning of that section. Therefore, 
publication in the Federal Register of a notice of proposed rulemaking 
and request for comments are not required for these regulations, which 
provide the procedures for the handling of retaliation complaints. 
Although this is a procedural rule not subject to the notice and 
comment procedures of the APA, we are providing persons interested in 
this interim final rule 60 days to submit comments. A final rule will 
be published after the agency receives and reviews the public's 
comments.
    Furthermore, because this rule is procedural rather than 
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be 
effective 30 days after publication in the Federal Register is 
inapplicable. The Assistant Secretary also finds good cause to provide 
an immediate effective date for this interim final rule. It is in the 
public interest that the rule be effective immediately so that parties 
may know what procedures are applicable to pending cases.

VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small 
Business Regulatory Enforcement Fairness Act of 1996; Executive Order 
13132

    The Department has concluded that this rule should be treated as a 
``significant regulatory action'' within the meaning of Section 3(f)(4) 
of Executive Order 12866 because the CPSIA whistleblower provisions are 
new. Executive Order 12866 requires a full economic impact analysis 
only for ``economically significant'' rules, which are defined in 
Section 3(f)(1) as rules that may ``have an annual effect on the 
economy of $100 million or more, or adversely affect in a material way 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.'' Because the rule is procedural in nature, it is not 
expected to have a significant economic impact, therefore, no economic 
impact analysis has been prepared. For the same reason, the rule does 
not require a Section 202 statement under the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1531 et seq.). Furthermore, because this is a 
rule of agency procedure and practice, it is not a ``rule'' within the 
meaning of the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C. 804(3)(C)), and does not require Congressional review. 
Finally, this rule does not have ``federalism implications.'' The rule 
does not have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government'' and therefore is not subject to Executive Order 13132 
(Federalism).

VII. Regulatory Flexibility Analysis

    The Department has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation simply implements procedures necessitated by enactment 
of CPSIA. Furthermore, no certification to this effect is required and 
no regulatory flexibility analysis is required because no proposed rule 
has been issued.
    Document Preparation: This document was prepared under the 
direction and control of the Assistant Secretary, Occupational Safety 
and Health Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 1983

    Administrative practice and procedure, Employment, Consumer 
protection, Investigations, Reporting and recordkeeping requirements, 
Whistleblower.

    Signed at Washington, DC, August 19, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1983 
is added to read as follows:

PART 1983--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER SECTION 219 OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 
2008.

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1983.100 Purpose and scope.
1983.101 Definitions.
1983.102 Obligations and prohibited acts.
1983.103 Filing of retaliation complaint.
1983.104 Investigation.
1983.105 Issuance of findings and preliminary orders.

[[Page 53539]]

Subpart B--Litigation
1983.106 Objections to the findings and the preliminary order and 
request for a hearing.
1983.107 Hearings.
1983.108 Role of Federal agencies.
1983.109 Decision and orders of the administrative law judge.
1983.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1983.111 Withdrawal of complaints, objections, and findings; 
settlement.
1983.112 Judicial review.
1983.113 Judicial enforcement.
1983.114 District court jurisdiction of retaliation complaints.
1983.115 Special circumstances; waiver of rules.

    Authority:  15 U.S.C. 2087; Secretary of Labor's Order No. 5-
2007, 72 FR 31160 (June 5, 2007); Secretary of Labor's Order No. 1-
2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).

Subpart A--Complaints, Investigations, Findings and Preliminary 
Orders


Sec.  1983.100  Purpose and scope.

    (a) This part implements procedures of the employee protection 
provision of the Consumer Product Safety Improvement Act (CPSIA), 15 
U.S.C. 2087. CPSIA provides for employee protection from retaliation 
because the employee has engaged in protected activity pertaining to 
consumer product safety.
    (b) This part establishes procedures under the CPSIA for the 
expeditious handling of retaliation complaints filed by employees, or 
by persons acting on their behalf. These rules, together with those 
codified at 29 CFR part 18, set forth the procedures for submission of 
complaints under CPSIA, investigations, issuance of findings and 
preliminary orders, objections to findings and orders, litigation 
before administrative law judges, post-hearing administrative review, 
and withdrawals and settlements.


Sec.  1983.101  Definitions.

    (a) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under CPSIA.
    (b) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (c) Commission means the Consumer Product Safety Commission.
    (d) Complainant means the employee who filed a CPSIA complaint or 
on whose behalf a complaint was filed.
    (e) (1) Consumer product means any article, or component part 
thereof, produced or distributed for sale to a consumer for use in or 
around a permanent or temporary household or residence, a school, in 
recreation, or otherwise, or for the personal use, consumption or 
enjoyment of a consumer in or around a permanent or temporary household 
or residence, a school, in recreation, or otherwise (the term 
``consumer product'' includes any mechanical device which carries or 
conveys passengers along, around, or over a fixed or restricted route 
or course or within a defined area for the purpose of giving its 
passengers amusement, which is customarily controlled or directed by an 
individual who is employed for that purpose and who is not a consumer 
with respect to such device, and which is not permanently fixed to a 
site, but does not include such a device that is permanently fixed to a 
site).
    (2) The term consumer product does not include:
    (i) Any article which is not customarily produced or distributed 
for sale to, or use or consumption by, or enjoyment of, a consumer;
    (ii) Tobacco and tobacco products;
    (iii) Motor vehicles or motor vehicle equipment (as defined by 49 
U.S.C. 30102(a)(6) and (7));
    (iv) Pesticides (as defined by the Federal Insecticide, Fungicide, 
and Rodenticide Act (7 U.S.C. 136 et seq.));
    (v) Any article or any component of any such article which, if sold 
by the manufacturer, producer, or importer, would be subject to the tax 
imposed by 26 U.S.C. 4181;
    (vi) Aircraft, aircraft engines, propellers, or appliances (as 
defined in 49 U.S.C. 40102(a));
    (vii) Boats which could be subjected to safety regulation under 46 
U.S.C. chapter 43; vessels, and appurtenances to vessels (other than 
such boats), which could be subjected to safety regulation under title 
52 of the Revised Statutes or other marine safety statutes administered 
by the department in which the Coast Guard is operating; and equipment 
(including associated equipment, as defined in 46 U.S.C. 2101(1)) to 
the extent that a risk of injury associated with the use of such 
equipment on boats or vessels could be eliminated or reduced by actions 
taken under any statute referred to in this definitional section;
    (viii) Drugs, devices, or cosmetics (as such terms are defined in 
21 U.S.C. 321(g), (h), and (i)); or
    (ix) Food (the term ``food'' means all ``food,'' as defined in 21 
U.S.C. 321(f), including poultry and poultry products (as defined in 21 
U.S.C. 453(e) and (f)), meat, meat food products (as defined in 21 
U.S.C. 601(j)), and eggs and egg products (as defined in 21 U.S.C. 
1033)).
    (f) CPSIA means Section 219 of the Consumer Product Safety 
Improvement Act of 2008, Public Law 110-314, August 14, 2008, codified 
at 15 U.S.C. 2087.
    (g) Distributor means a person to whom a consumer product is 
delivered or sold for purposes of distribution in commerce, except that 
such term does not include a manufacturer or retailer of such product.
    (h) Employee means an individual presently or formerly working for, 
an individual applying to work for, or an individual whose employment 
could be affected by a manufacturer, private labeler, distributor, or 
retailer.
    (i) Manufacturer means any person who manufactures or imports a 
consumer product. A product is manufactured if it is manufactured, 
produced, or assembled.
    (j) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (k) Private labeler means an owner of a brand or trademark on the 
label of a consumer product which bears a private label. A consumer 
product bears a private label if:
    (i) The product (or its container) is labeled with the brand or 
trademark of a person other than a manufacturer of the product,
    (ii) The person with whose brand or trademark the product (or 
container) is labeled has authorized or caused the product to be so 
labeled, and
    (iii) The brand or trademark of a manufacturer of such product does 
not appear on such label.
    (l) Retailer means a person to whom a consumer product is delivered 
or sold for purposes of sale or distribution by such person to a 
consumer.
    (m) Respondent means the employer named in the complaint who is 
alleged to have violated the Act.
    (n) Secretary means the Secretary of Labor or person to whom 
authority under CPSIA has been delegated.
    (o) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1983.102  Obligations and prohibited acts.

    (a) No manufacturer, private labeler, distributor, or retailer 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

[[Page 53540]]

because the employee, whether at the employee's initiative or in the 
ordinary course of the employee's duties (or any person acting pursuant 
to a request of the employee), engaged in any of the activities 
specified in paragraphs (b)(1) through (4) of this section.
    (b) An employee is protected against retaliation (as described in 
paragraph (a) of this section) by a manufacturer, private labeler, 
distributor, or retailer because he or she:
    (1) 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 the Consumer Product Safety Act, as 
amended by CPSIA, or any other Act enforced by the Commission, or any 
order, rule, regulation, standard, or ban under any such Acts;
    (2) Testified, or is about to testify, in a proceeding concerning 
such violation;
    (3) Assisted or participated, or is about to assist or participate, 
in such a proceeding; or
    (4) 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 the 
Consumer Product Safety Act, as amended by CPSIA, or any other Act 
enforced by the Commission, or any order, rule, regulation, standard, 
or ban under any such Acts.
    (c) This part shall have no application with respect to an employee 
of a manufacturer, private labeler, distributor, or retailer who, 
acting without direction from such manufacturer, private labeler, 
distributor, or retailer (or such person's agent), deliberately causes 
a violation of any requirement relating to any violation or alleged 
violation of any order, regulation, or consumer product safety standard 
under the Consumer Product Safety Act, as amended by CPSIA, or any 
other law enforced by the Commission.


Sec.  1983.103  Filing of retaliation complaints.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by a manufacturer, private labeler, distributor, or 
retailer in violation of CPSIA 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 
Area Director 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: https://www.osha.gov.
    (d) Time for filing. Within 180 days after an alleged violation of 
CPSIA occurs, any employee who believes that he or she has been 
retaliated against in violation of the Act 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, e-mail 
communication, 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.


Sec.  1983.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing a copy of the complaint, redacted, if necessary, 
in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and 
other applicable confidentiality laws, and will also notify the 
respondent of its rights under paragraphs (b) and (f) of this section. 
The Assistant Secretary will provide a copy of the unredacted complaint 
to the complainant (or complainant's legal counsel, if complainant is 
represented by counsel) and to the Consumer Product Safety Commission.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to 
the agency that are responsive to the complainant's whistleblower 
complaint. Before providing such materials to the complainant, the 
agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, et seq., and other applicable 
confidentiality laws.
    (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 title 29 of the Code of Federal Regulations.
    (e)(1) A complaint of alleged violation will be dismissed unless 
the complainant has made a prima facie showing that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected, actually or constructively, 
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, giving rise to the 
inference that it was a contributing factor in the adverse action. If 
the required showing has not been made, the complainant (or the 
complainant's legal counsel, if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted or will be discontinued if the 
respondent, pursuant to the procedures provided in this paragraph, 
demonstrates by clear and convincing evidence that it would have taken 
the

[[Page 53541]]

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, the Assistant 
Secretary will proceed with the investigation. The investigation will 
proceed whenever it is necessary or appropriate to confirm or verify 
the information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1983.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the respondent has violated 
CPSIA and that preliminary reinstatement is warranted, the Assistant 
Secretary will again contact the respondent (or the respondent's legal 
counsel, if respondent is represented by counsel) to give notice of the 
substance of the relevant evidence supporting the complainant's 
allegations as developed during the course of the investigation. This 
evidence includes any witness statements, which will be redacted to 
protect the identity of confidential informants where statements were 
given in confidence; if the statements cannot be redacted without 
revealing the identity of confidential informants, summaries of their 
contents will be provided. The respondent will be given the opportunity 
to submit a written response, to meet with the investigators, to 
present statements from witnesses in support of its position, and to 
present legal and factual arguments. The respondent will present this 
evidence within 10 business days of the Assistant Secretary's 
notification pursuant to this paragraph, or as soon thereafter as the 
Assistant Secretary and the respondent can agree, if the interests of 
justice so require.


Sec.  1983.105  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 CPSIA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, he or she will 
accompany the findings with a preliminary order providing relief to the 
complainant. The preliminary order will include, where appropriate, a 
requirement that the respondent abate the violation; reinstatement of 
the complainant to his or her former position, together with the 
compensation (including back pay), terms, conditions and privileges of 
the complainant's employment; payment of compensatory damages, 
including, at the request of the complainant, the aggregate amount of 
all costs and expenses (including attorney's and expert witness fees) 
reasonably incurred.
    (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 the preliminary order will be sent by 
certified mail, return receipt requested, to all parties of record (and 
the respondent's legal counsel if the respondent 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 attorney's 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. The findings and, where appropriate, 
preliminary order, also will give the address of the Chief 
Administrative Law Judge. At the same time, the Assistant Secretary 
will file with the Chief Administrative Law Judge, U.S. Department of 
Labor, a copy of the original complaint and a copy of the findings and/
or order.
    (c) The findings and the preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and/or a request for hearing has been timely filed as 
provided at Sec.  1983.106. 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 the order.

Subpart B--Litigation


Sec.  1983.106  Objections to the findings and the preliminary order 
and request for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney's fees under CPSIA, 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.  1983.105(b). The objections, 
request for a hearing, and/or request for attorney's fees must be in 
writing and state whether the objections are to the findings, the 
preliminary order, and/or whether there should be an award of 
attorney's fees. The date of the postmark, facsimile transmittal, or e-
mail communication 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, Washington, DC 
20001, 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 shall 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. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order shall become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1983.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure and the rules of 
evidence for administrative hearings before the Office of 
Administrative Law Judges, codified at Part 18 of Title 29 of the Code 
of Federal Regulations.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to a judge 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.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be

[[Page 53542]]

consolidated and a single hearing will be conducted.


Sec.  1983.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding. 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 proceedings. This right to participate includes, but 
is not limited to, the right to petition for review of a decision of an 
administrative law judge, including a decision approving or rejecting a 
settlement agreement between the complainant and the respondent.
    (2) Copies of documents in all cases, whether or not the Assistant 
Secretary is participating in the proceeding, must be sent to the 
Assistant Secretary, Occupational Safety and Health Administration, and 
to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, as well as other parties.
    (b) The Consumer Product Safety Commission, if interested in a 
proceeding, may participate as amicus curiae at any time in the 
proceeding, at the agency's discretion. At the request of the 
Commission, copies of all pleadings in a case must be sent to the 
Commission, whether or not it is participating in the proceeding.


Sec.  1983.109  Decision and orders of the administrative law judge.

    (a) The decision of the administrative law judge 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 behavior.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant to Sec.  
1983.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, and a complaint may 
not be remanded for the completion of an investigation or for 
additional findings on the basis that a determination to dismiss was 
made in error. Rather, if there otherwise is jurisdiction, the ALJ will 
hear the case on the merits or dispose of the matter without a hearing 
if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the order will direct the respondent to take appropriate 
affirmative action to abate the violation, including, where 
appropriate, reinstatement of the complainant to that person's former 
position, together with the compensation (including back pay), terms, 
conditions, and privileges of that employment, and compensatory 
damages. At the request of the complainant, the ALJ shall assess 
against the respondent all costs and expenses (including attorney's and 
expert witness fees) reasonably incurred.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the judge may award to the 
respondent a reasonable attorney's fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards. 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 judge's order will be effective 10 business days after 
the date of the decision unless a timely petition for review has been 
filed with the ARB.


Sec.  1983.110  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's 
fees, must file a written petition for review with the Administrative 
Review Board, U.S. Department of Labor, which has been delegated the 
authority to act for the Secretary and issue final decisions under this 
part. The decision of the ALJ will become the final order of the 
Secretary unless, pursuant to this section, a petition for review is 
timely filed with the ARB and the ARB accepts the petition for review. 
The petition for review must specifically identify the legal 
conclusions or orders to which exception is taken. Any exception not 
specifically urged ordinarily will be deemed to have been waived by the 
parties. A petition must be filed within 10 business days of the date 
of the decision of the ALJ. The date of the postmark, facsimile 
transmittal, or e-mail communication 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 Ju