Procedures for Handling Retaliation Complaints Under Section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), 13976-13989 [2016-05414]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Rules and Regulations]
[Pages 13976-13989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05414]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1988

[Docket Number: OSHA-2015-0021]
RIN 1218-AC88


Procedures for Handling Retaliation Complaints Under Section 
31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21)

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the interim final text of regulations 
governing the employee protection (retaliation or whistleblower) 
provisions of section 31307 of the Moving Ahead for Progress in the 
21st Century Act (MAP-21 or the Act). This rule establishes procedures 
and time frames for the handling of retaliation complaints under MAP-
21, including procedures and time frames for employee complaints to the 
Occupational Safety and Health Administration (OSHA), investigations by 
OSHA, appeals of OSHA determinations to an administrative law judge 
(ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions 
by the Administrative Review Board (ARB) (acting on behalf of the 
Secretary of Labor) and judicial review of the Secretary's final 
decision. It also sets forth the Secretary's interpretations of the 
MAP-21 whistleblower provision on certain matters.

DATES: This interim final rule is effective on March 16, 2016. Comments 
and additional materials must be submitted (post-marked, sent or 
received) by May 16, 2016.

ADDRESSES: You may submit your comments by using one of the following 
methods:
    Electronically: 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 may submit your comments and attachments to the OSHA Docket Office, 
Docket No. OSHA-2015-0021, 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- 2015-0021). 
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: Mr. Anh-Viet Ly, Program Analyst, 
Directorate of Whistleblower Protection Programs, Occupational Safety 
and Health Administration, U.S. Department of Labor, Room N-4618, 200 
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2199. This is not a toll-free number. Email: OSHA.DWPP@dol.gov. This 
Federal Register publication is available in alternative formats. The 
alternative formats available are: large print, electronic file on 
computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) 
and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    The Moving Ahead for Progress in the 21st Century Act (MAP-21 or 
Act), Public Law 112-141, 126 Stat. 405, was enacted on July 6, 2012 
and, among other things, funded surface transportation programs at over 
$105 billion for fiscal years 2013 and 2014. Section 31307 of the Act, 
codified at 49 U.S.C. 30171 and referred to throughout these interim 
final rules as MAP-21, prohibits motor vehicle manufacturers, parts 
suppliers, and dealerships from discharging or otherwise retaliating 
against an employee because the employee provided, caused to be 
provided or is about to provide information to the employer or the 
Secretary of Transportation relating to any motor vehicle defect, 
noncompliance, or any violation or alleged violation of any 
notification or reporting requirement of Chapter 301 of title 49 of the 
U.S. Code (Chapter 301); filed, caused to be filed or is about to file 
a proceeding relating to any such defect or violation; testified, 
assisted or participated (or is about to testify, assist or 
participate) in such a proceeding; or objected to, or refused to 
participate in, any activity that the employee reasonably believed to 
be in violation of any provision of Chapter 301, or any order, rule, 
regulation, standard or ban under such provision. Chapter 301 is the 
codification of the National Traffic and Motor Vehicle Safety Act of 
1966,

[[Page 13977]]

as amended, which grants the National Highway Traffic Safety 
Administration (NHTSA) authority to issue vehicle safety standards and 
to require manufacturers to recall vehicles that have a safety-related 
defect or do not meet federal safety standards. These interim final 
rules establish procedures for the handling of whistleblower complaints 
under the Act.

II. Summary of Statutory Procedures

    Under MAP-21, a person who believes that he has been discharged or 
otherwise retaliated against in violation of the Act (complainant) may 
file a complaint with the Secretary of Labor (Secretary) within 180 
days of the alleged retaliation. Upon receipt of the complaint, the 
Secretary must provide written notice to the person or persons named in 
the complaint alleged to have violated 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, meet with the 
investigator to present statements from witnesses, and conduct an 
investigation.
    The Act provides that 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 it would have taken the 
same adverse action in the absence of that activity. (See Sec.  
1988.104 for a summary of the investigation process.) OSHA interprets 
the prima facie case requirement as allowing the complainant to meet 
this burden through the complaint as supplemented by interviews of the 
complainant.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
there is reasonable cause to believe that retaliation has occurred, the 
Secretary must notify the complainant and respondent of those findings, 
along with a preliminary order that requires the respondent to, where 
appropriate: Take affirmative action to abate the violation; reinstate 
the complainant to his or her former position together with the 
compensation of that position (including back pay) and restore the 
terms, conditions, and privileges associated with his or her 
employment; and provide compensatory damages to the complainant, as 
well as all costs and expenses (including attorney fees and expert 
witness fees) reasonably incurred by the complainant for, or in 
connection with, the bringing of the complaint upon which the order was 
issued.
    The complainant and the respondent then have 30 days after the date 
of receipt of the Secretary's notification in which to file objections 
to the findings and/or preliminary order and request a hearing before 
an Administrative Law Judge (ALJ). The filing of objections under the 
Act 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, the Act 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 appropriate, will assess against the respondent a sum 
equal to the total amount of all costs and expenses, including attorney 
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 reasonable attorney fees, not exceeding $1,000, if the 
Secretary finds that the complaint is frivolous or has been brought in 
bad faith. Within 60 days of the issuance of the final order, any 
person adversely affected or aggrieved by the Secretary's final order 
may file an appeal with the United States Court of Appeals for the 
circuit in which the violation allegedly occurred or the circuit where 
the complainant resided on the date of the violation.
    The Act 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. 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 the Act. Responsibility for receiving and 
investigating complaints under the Act has been delegated to the 
Assistant Secretary for Occupational Safety and Health (Assistant 
Secretary) by Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 
FR 3912 (Jan. 25, 2012). Hearings on determinations by the Assistant 
Secretary are conducted by the Office of Administrative Law Judges, and 
appeals from decisions by ALJs are decided by the ARB. Secretary of 
Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

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

Section 1988.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
the whistleblower provisions of MAP-21 and provides an overview of the 
procedures covered by these regulations.
Section 1988.101 Definitions
    This section includes the general definitions of certain terms used 
in section 31307 of MAP-21, 49 U.S.C. 30171, which are applicable to 
the Act's whistleblower provision. The term ``dealership'' appears only 
in section 30171 and does not appear in any other provision of Chapter 
301, which consistently uses the term ``dealer'' to mean ``a person 
selling and distributing new motor vehicles or motor vehicle equipment 
primarily to purchasers that in good faith purchase the vehicles or 
equipment other than for resale.'' See 49 U.S.C. 30102(a)(1). 
Accordingly, the Secretary concludes that the term ``dealership'' in 
section 30171 refers to any ``dealer'' as that term is defined in 
section 30102(a)(1). The term defect ``includes any defect in 
performance, construction, a component, or material of a motor vehicle 
or motor vehicle equipment.'' See id. at (a)(2). The term manufacturer 
means ``a person (A) manufacturing or assembling motor vehicles or 
motor vehicle equipment; or (B) importing motor vehicles or motor 
vehicle equipment for resale.'' See id. at (a)(5). The term motor 
vehicle means ``a vehicle driven or drawn by mechanical power and 
manufactured primarily for use on public streets, roads, and highways, 
but does not include a vehicle operated only on a rail line.''

[[Page 13978]]

See id. at (a)(6). The term motor vehicle equipment means ``(A) any 
system, part, or component of a motor vehicle as originally 
manufactured; (B) any similar part or component manufactured or sold 
for replacement or improvement of a system, part, or component, or as 
an accessory or addition to a motor vehicle; or (C) any device or an 
article or apparel, including a motorcycle helmet and excluding 
medicine or eyeglasses prescribed by a licensed practitioner, that (i) 
is not a system, part, or component of a motor vehicle; and (ii) is 
manufactured, sold, delivered, or offered to be sold for use on public 
streets, roads, and highways with the apparent purpose of safeguarding 
users of motor vehicles against risk of accident, injury, or death.'' 
See id. at (a)(7).
Section 1988.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under the 
Act and the conduct that is prohibited in response to any protected 
activities. The Act protects individuals who provide information to the 
employer or to the Secretary of Transportation relating to any motor 
vehicle defect, noncompliance, or any violation or alleged violation of 
any notification or reporting requirement of Chapter 301. The Act also 
protects individuals who file, testify, assist, or participate in 
proceedings concerning motor vehicle defects, noncompliance, or 
violations or alleged violations of any notification or reporting 
requirement of Chapter 301. Finally, the Act protects individuals who 
objected to, or refused to participate in, any activity that the 
employee reasonably believed to be in violation of any provision of 
Chapter 301 or any order, rule, regulation, standard, or ban under that 
Chapter. More information regarding Chapter 301 and NHTSA's regulations 
can be found at www.nhtsa.gov.
    Under the Act, an employee who provides information, files a 
proceeding, or objects to or refuses to participate in any activity is 
protected so long as the employee's belief of a defect, noncompliance 
or violation is subjectively and objectively reasonable. See, e.g., 
Benjamin v. CitationShares Management. L.L.C., ARB No. 12-029, 2013 WL 
6385831, at *4 (ARB Nov. 5, 2013) (noting that, as a matter of law, an 
employee is protected under the aviation whistleblower protections of 
49 U.S.C. 42121 when he provides or attempts to provide information 
regarding conduct he reasonably believes violates FAA regulations) 
(citations omitted); Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 
2011 WL 2165854, at *11-12 (ARB May 25, 2011) (discussing the 
reasonable belief standard under analogous language in the Sarbanes-
Oxley Act whistleblower provision, 18 U.S.C. 1514A). The requirement 
that the complainant have a subjective, good faith belief is satisfied 
so long as the complainant actually believed that the conduct objected 
to violated the relevant law or regulation. See Sylvester, 2011 WL 
2165854, at *11-12. The objective ``reasonableness'' of a complainant's 
belief is typically determined ``based on the knowledge available to a 
reasonable person in the same factual circumstances with the same 
training and experience as the aggrieved employee.'' Id. at *12 
(internal quotation marks and citation omitted). However, the 
complainant need not show that the conduct constituted an actual 
violation of law. Pursuant to this standard, an employee's 
whistleblower activity is protected where it is based on a reasonable, 
but mistaken, belief that a violation of the relevant law has occurred. 
Id. at *13.
Section 1988.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation 
complaint under MAP-21. To be timely, a complaint must be filed within 
180 days of when the alleged violation occurs. Under Delaware State 
College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation occurs 
when the retaliatory decision has been both made and communicated to 
the complainant. In other words, the limitations period commences once 
the employee is aware or reasonably should be aware of the employer's 
decision to take an adverse action. Equal Emp't Opportunity Comm'n v. 
United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). The 
time for filing a complaint under MAP-21 may be tolled for reasons 
warranted by applicable case law. For example, OSHA may consider the 
time for filing a complaint to be tolled if a complainant mistakenly 
files a complaint with an agency other than OSHA within 180 days after 
an alleged adverse action.
    Complaints filed under MAP-21 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.
    OSHA notes that a complaint of retaliation filed with OSHA under 
MAP-21 is not a formal document and need not conform to the pleading 
standards for complaints filed in federal district court articulated in 
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. 
Iqbal, 556 U.S. 662 (2009). See Sylvester, 2011 WL 2165854, at *9-10 
(holding that whistleblower complaints filed with OSHA under analogous 
provisions in the Sarbanes-Oxley Act need not conform to federal court 
pleading standards). Rather, the complaint filed with OSHA under this 
section simply alerts OSHA to the existence of the alleged retaliation 
and the complainant's desire that OSHA investigate the complaint.
Section 1988.104 Investigation
    This section describes the procedures that apply to the 
investigation of MAP-21 complaints. Paragraph (a) of this section 
outlines the procedures for notifying the parties and the NHTSA 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) specifies that 
OSHA will request that the parties provide each other with copies of 
their submissions to OSHA during the investigation and that, if a party 
does not provide such copies, OSHA will do so at a time permitting the 
other party an opportunity to respond to those submissions. Before 
providing such materials, OSHA will redact them consistent with the 
Privacy Act of 1974, 5 U.S.C. 552a and other applicable confidentiality 
laws. Paragraph (d) of this section discusses confidentiality of 
information provided during investigations.
    Paragraph (e) of this section sets forth the applicable burdens of 
proof. MAP-21 requires that a complainant make an initial prima facie 
showing that a protected activity was ``a contributing factor'' in the 
adverse action alleged in the complaint, i.e., that the protected 
activity, alone or in combination with other factors, affected in some 
way the outcome of the employer's decision. The complainant will be 
considered to have met the required burden if the complaint on its 
face, supplemented as appropriate through interviews of the 
complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing. The complainant's 
burden may be satisfied, for example, if he or she shows that the 
adverse action took place within a temporal proximity of the protected 
activity, or at the first opportunity available to the respondent, 
giving rise to the inference that it was a contributing factor in the 
adverse action. See, e.g. Porter v. Cal. Dep't of Corrs., 419 F.3d 885, 
895 (9th Cir. 2005)

[[Page 13979]]

(years between the protected activity and the retaliatory actions did 
not defeat a finding of a causal connection where the defendant did not 
have the opportunity to retaliate until he was given responsibility for 
making personnel decisions).
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the Energy Reorganization 
Act of 1974, which is the same as that under MAP-21, serves a 
``gatekeeping function'' that ``stem[s] frivolous complaints''). Even 
in cases where the complainant successfully makes a prima facie 
showing, the investigation must be discontinued if the employer 
demonstrates, by clear and convincing evidence, that it would have 
taken the same adverse action in the absence of the protected activity. 
Thus, OSHA must dismiss a complaint under MAP-21 and not investigate 
further if either: (1) The complainant fails to meet the prima facie 
showing that protected activity was a contributing factor in the 
alleged adverse action; or (2) the employer rebuts that showing by 
clear and convincing evidence that it would have taken the same adverse 
action absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statute requires OSHA to determine whether there is 
reasonable cause to believe that protected activity was a contributing 
factor in the alleged adverse action. A contributing factor is ``any 
factor which, alone or in connection with other factors, tends to 
affect in any way the outcome of the decision.'' Marano v. Dep't of 
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks, 
emphasis and citation omitted) (discussing the Whistleblower Protection 
Act, 5 U.S.C. 1221(e)(1)); see also Lockheed Martin Corp. v. Admin. 
Rev. Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (discussing Marano as 
applied to analogous whistleblower provision in the Sarbanes-Oxley 
Act); Araujo v. New Jersey Transit Rail Ops., Inc., 708 F.3d 152, 158 
(3d Cir. 2013) (discussing Marano as applied to analogous whistleblower 
provision in the Federal Railroad Safety Act). For protected activity 
to be a contributing factor in the adverse action, `` `a complainant 
need not necessarily prove that the respondent's articulated reason was 
a pretext in order to prevail,' because a complainant alternatively can 
prevail by showing that the respondent's `reason, while true, is only 
one of the reasons for its conduct,' and that another reason was the 
complainant's protected activity.'' See Klopfenstein v. PCC Flow Techs. 
Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 
2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th 
Cir. 2004)) (discussing contributing factor test under the Sarbanes-
Oxley Act whistleblower provision), aff'd sub nom. Klopfenstein v. 
Admin. Rev. Bd., 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).
    If OSHA finds reasonable cause to believe that the alleged 
protected activity was a contributing factor in the adverse action, 
OSHA may not order relief if the employer demonstrates by ``clear and 
convincing evidence'' that it would have taken the same action in the 
absence of the protected activity. See 49 U.S.C. 30171(b)(2)(B). The 
``clear and convincing evidence'' standard is a higher burden of proof 
than a ``preponderance of the evidence'' standard. Clear and convincing 
evidence is evidence indicating that the thing to be proved is highly 
probable or reasonably certain. Clarke v. Navajo Express, ARB No. 09-
114, 2011 WL 2614326, at *3 (ARB June 29, 2011).
    Paragraph (f) describes the procedures OSHA will follow prior to 
the issuance of findings and a preliminary order when OSHA has 
reasonable cause to believe that a violation has occurred. Its purpose 
is to ensure compliance with the Due Process Clause of the Fifth 
Amendment, as interpreted by the Supreme Court in Brock v. Roadway 
Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a Surface 
Transportation Assistance Act respondent the opportunity to review the 
substance of the evidence and respond, prior to ordering preliminary 
reinstatement).
Section 1988.105 Issuance of Findings and Preliminary Orders
    This section provides that, on the basis of information obtained in 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of a complaint, written findings regarding whether or not 
there is reasonable cause to believe that the complaint has merit. If 
the findings are that there is reasonable cause to believe that the 
complaint has merit, the Assistant Secretary will order appropriate 
relief, including preliminary reinstatement, affirmative action to 
abate the violation, back pay with interest, compensatory damages, 
attorney and expert witness fees, and costs. The findings and, where 
appropriate, preliminary order, advise the parties of their right to 
file objections to the findings of the Assistant Secretary and to 
request a hearing. The findings and, where appropriate, the preliminary 
order, also advise the respondent of the right to request an award of 
attorney fees not exceeding $1,000 from the ALJ, regardless of whether 
the respondent has filed objections, if the 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.
    The remedies provided under MAP-21 aim to make the complainant 
whole by restoring the complainant to the position that he or she would 
have occupied absent the retaliation and to counteract the chilling 
effect of retaliation on protected whistleblowing in complainant's 
workplace. The back pay and other remedies appropriate in each case 
will depend on the individual facts of the case and the complainant's 
interim earnings must be taken into account in determining the 
appropriate back pay award. However, OSHA notes that a back pay award 
under MAP-21 includes not only wages but also may include other 
compensation that the complainant would have received from the employer 
absent the retaliation, such as lost bonuses, overtime, benefits, 
raises and promotions when there is evidence to determine these 
figures. Thus, for example, a back pay award under MAP-21 might include 
amounts that the complainant would have earned in commissions or 
amounts that the employer would have contributed to a 401(k) plan on 
the complainant's behalf had the complainant not been discharged in 
retaliation for engaging in protected activity under MAP-21.
    In ordering interest on back pay under MAP-21, the Secretary has 
determined that interest due will be computed by compounding daily the 
Internal Revenue Service interest rate for the underpayment of taxes, 
which under 26 U.S.C. 6621 is generally the Federal short-term rate 
plus three percentage points, against back pay. In the Secretary's 
view, 26 U.S.C. 6621 provides the appropriate rate of interest to 
ensure that victims of unlawful retaliation under MAP-21 are made 
whole. The Secretary has long applied the interest rate in 26 U.S.C. 
6621 to calculate interest on back pay in whistleblower cases. Doyle v. 
Hydro

[[Page 13980]]

Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 2000 WL 694384, at 
*14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express, 
Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB Mar. 17, 2011); 
Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051, 2010 WL 1776974, at 
*8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., ARB No. 00-045, slip 
op. at 9 (ARB Dec. 29, 2000). Section 6621 provides the appropriate 
measure of compensation under MAP-21 and other Department of Labor 
(DOL)-administered whistleblower statutes because it ensures that the 
complainant will be placed in the same position he or she would have 
been in if no unlawful retaliation occurred. See Ass't Sec'y v. Double 
R. Trucking, Inc., ARB No. 99-061, slip op. at 5 (ARB July 16, 1999) 
(interest awards pursuant to section 6621 are mandatory elements of 
complainant's make-whole remedy). Section 6621 provides a reasonably 
accurate prediction of market outcomes (which represents the loss of 
investment opportunity by the complainant and the employer's benefit 
from use of the withheld money) and thus provides the complainant with 
appropriate make-whole relief. See EEOC v. Erie Cnty., 751 F.2d 79, 82 
(2d Cir. 1984) (``[S]ince the goal of a suit under the [Fair Labor 
Standards Act] and the Equal Pay Act is to make whole the victims of 
the unlawful underpayment of wages, and since [section 6621] has been 
adopted as a good indicator of the value of the use of money, it was 
well within'' the district court's discretion to calculate prejudgment 
interest under Sec.  6621); New Horizons for the Retarded, 283 NLRB No. 
181, 1987 WL 89652, at *2 (NLRB May 28, 1987) (observing that ``the 
short-term Federal rate [used by section 6621] is based on average 
market yields on marketable Federal obligations and is influenced by 
private economic market forces'').
    The Secretary further believes that daily compounding of interest 
achieves the make-whole purpose of a back pay award. Daily compounding 
of interest has become the norm in private lending and was found to be 
the most appropriate method of calculating interest on back pay by the 
National Labor Relations Board (NLRB). See Jackson Hosp. Corp. v. 
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & 
Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 
(NLRB Oct. 22, 2010). Additionally, interest on tax underpayments under 
the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant 
to 26 U.S.C. 6622(a).
    In ordering back pay, OSHA will require the respondent to submit 
the appropriate documentation to the Social Security Administration 
(SSA) allocating the back pay to the appropriate calendar quarters. 
Requiring the reporting of back pay allocation to the SSA serves the 
remedial purposes of MAP-21 by ensuring that employees subjected to 
retaliation are truly made whole. See Don Chavas, LLC d/b/a Tortillas 
Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB Aug. 8, 
2014). As the NLRB has explained, when back pay is not properly 
allocated to the years covered by the award, a complainant may be 
disadvantaged in several ways. First, improper allocation may interfere 
with a complainant's ability to qualify for any old-age Social Security 
benefit. Id. at *4 (``Unless a [complainant's] multiyear backpay award 
is allocated to the appropriate years, she will not receive appropriate 
credit for the entire period covered by the award, and could therefore 
fail to qualify for any old-age social security benefit.''). Second, 
improper allocation may reduce the complainant's eventual monthly 
benefit. Id. ``[I]f a backpay award covering a multi-year period is 
posted as income for 1 year, it may result in SSA treating the 
[complainant] as having received wages in that year in excess of the 
annual contribution and benefit base.'' Id. Wages above this base are 
not subject to Social Security taxes, which reduces the amount paid on 
the employee's behalf. ``As a result, the [complainant's] eventual 
monthly benefit will be reduced because participants receive a greater 
benefit when they have paid more into the system.'' Id. Finally, 
``social security benefits are calculated using a progressive formula: 
Although a participant receives more in benefits when she pays more 
into the system, the rate of return diminishes at higher annual 
incomes.'' Therefore, a complainant may ``receive a smaller monthly 
benefit when a multiyear award is posted to 1 year rather than being 
allocated to the appropriate periods, even if social security taxes 
were paid on the entire amount.'' Id. The purpose of a make-whole 
remedy such as back pay is to put the complainant in the same position 
the complainant would have been absent the prohibited retaliation. That 
purpose is not achieved when the complainant suffers the disadvantages 
described above. The Secretary believes that requiring proper SSA 
allocation is necessary to achieve the make-whole purpose of a back pay 
award.
    In appropriate circumstances, in lieu of preliminary reinstatement, 
OSHA may order that the complainant receive the same pay and benefits 
that he or she received prior to termination but not actually return to 
work. Such ``economic reinstatement'' is akin to an order of front pay 
and frequently is employed in cases arising under section 105(c) of the 
Federal Mine Safety and Health Act of 1977, which protects miners from 
retaliation. 30 U.S.C. 815(c); see, e.g., Sec'y of Labor ex rel. York 
v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 
26, 2001). Front pay has been recognized as a possible remedy in cases 
under the whistleblower statutes enforced by OSHA in circumstances 
where reinstatement would not be appropriate. See, e.g., Brown v. 
Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 2010 WL 2054426, at *55-
56 (ALJ Jan. 15, 2010) (noting that while reinstatement is the 
``presumptive remedy'' under Sarbanes-Oxley, front pay may be awarded 
as a substitute when reinstatement is inappropriate); see, e.g., Luder 
v. Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB 
Jan. 31, 2012), aff'd, Cont'l Airlines, Inc. v. Admin. Rev. Bd., No. 
15-60012, slip op. at 8, 2016 WL 97461, at *4 (5th Cir. Jan. 7, 2016) 
(unpublished) (under Wendell H. Ford Aviation Investment and Reform Act 
for the 21st Century, ``front-pay is available when reinstatement is 
not possible''); see also Moder v. Vill. of Jackson, ARB Nos. 01-095, 
02-039, 2003 WL 21499864, at *10 (ARB June 30, 2003) (under 
environmental whistleblower statutes, ``front pay may be an appropriate 
substitute when the parties prove the impossibility of a productive and 
amicable working relationship, or the company no longer has a position 
for which the complainant is qualified''); Hobby v. Georgia Power Co., 
ARB Nos. 98-166, 98-169 (ARB Feb. 9, 2001), aff'd sub nom. Hobby v. 
U.S. Dep't of Labor, No. 01-10916 (11th Cir. Sept. 30, 2002) 
(unpublished) (noting circumstances where front pay may be available in 
lieu of reinstatement but ordering reinstatement). Congress intended 
that employees be preliminarily reinstated to their positions if OSHA 
finds reasonable cause to believe that they were discharged in 
violation of MAP-21. When a violation is found, the norm is for OSHA to 
order immediate preliminary reinstatement. Neither an employer nor an 
employee has a statutory right to choose economic

[[Page 13981]]

reinstatement. Rather, economic reinstatement is designed to 
accommodate situations in which evidence establishes to OSHA's 
satisfaction that immediate 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 1988.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing
    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, within 30 days of 
receipt of the findings. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal is considered the 
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The 
filing of objections also is considered a request for a hearing before 
an ALJ. Although the parties are directed to serve a copy of their 
objections on the other parties of record, as well as the OSHA official 
who issued the findings and order, OSHA, and the U.S. Department of 
Labor's Associate Solicitor for Fair Labor Standards, the failure to 
serve copies of the objections on the other parties of record does not 
affect the ALJ's jurisdiction to hear and decide the merits of the 
case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 
04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).
    The timely filing of objections stays all provisions of the 
preliminary order, except for the portion requiring reinstatement. A 
respondent may file a motion to stay the Assistant Secretary's 
preliminary order of reinstatement with the Office of Administrative 
Law Judges. However, such a motion will be granted only based on 
exceptional circumstances. The Secretary believes that a stay of the 
Assistant Secretary's preliminary order of reinstatement under MAP-21 
would be appropriate only where the respondent can establish the 
necessary criteria for equitable injunctive relief, i.e., irreparable 
injury, likelihood of success on the merits, a balancing of possible 
harms to the parties, and the public interest favors a stay. If no 
timely objection to the Assistant Secretary's findings and/or 
preliminary order is filed, then the Assistant Secretary's findings 
and/or preliminary order become the final decision of the Secretary not 
subject to judicial review.
Section 1988.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
as set forth in 29 CFR part 18 subpart A. This section provides that 
the hearing is to commence expeditiously, except upon a showing of good 
cause or unless otherwise agreed to by the parties. Hearings will be 
conducted de novo, on the record. As noted in this section, formal 
rules of evidence will not apply, but rules or principles designed to 
assure production of the most probative evidence will be applied. The 
ALJ may exclude evidence that is immaterial, irrelevant, or unduly 
repetitious.
Section 1988.108 Role of Federal Agencies
    The Assistant Secretary, at his or her discretion, may participate 
as a party or amicus curiae at any time in the administrative 
proceedings under MAP-21. For example, the Assistant Secretary may 
exercise his or her discretion to prosecute the case in the 
administrative proceeding before an ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although OSHA anticipates that ordinarily the Assistant Secretary will 
not participate, the Assistant Secretary may choose to do so in 
appropriate cases, such as cases involving important or novel legal 
issues, multiple employees, alleged violations that appear egregious, 
or where the interests of justice might require participation by the 
Assistant Secretary. The NHTSA, if interested in a proceeding, also may 
participate as amicus curiae at any time in the proceedings.
Section 1988.109 Decision and Orders of the Administrative Law Judge
    This section sets forth the requirements for the content of the 
decision and order of the ALJ, and includes the standard for finding a 
violation under MAP-21. Specifically, the complainant must demonstrate 
(i.e. prove by a preponderance of the evidence) that the protected 
activity was a ``contributing factor'' in the adverse action. See, 
e.g., Allen v. Admin. Rev. Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008) 
(``The term `demonstrates' [under identical burden-shifting scheme in 
the Sarbanes-Oxley whistleblower provision] means to prove by a 
preponderance of the evidence.''). If the employee demonstrates that 
the alleged protected activity was a contributing factor in the adverse 
action, the employer, to escape liability, must demonstrate by ``clear 
and convincing evidence'' that it would have taken the same action in 
the absence of the protected activity. See 49 U.S.C. 30171(b)(2)(B).
    Paragraph (c) of this section further provides that OSHA's 
determination to dismiss the complaint without an investigation or 
without a complete investigation under section 1988.104 is not subject 
to review. Thus, section 1988.109(c) clarifies that OSHA's 
determinations on whether to proceed with an investigation under MAP-21 
and whether to make particular investigative findings are discretionary 
decisions not subject to review by the ALJ. The ALJ hears cases de novo 
and, therefore, as a general matter, may not remand cases to OSHA to 
conduct an investigation or make further factual findings. Paragraph 
(d) notes the remedies that the ALJ may order under MAP-21 and, as 
discussed under section 1988.105 above, provides that interest on back 
pay will be calculated using the interest rate applicable to 
underpayment of taxes under 26 U.S.C. 6621 and will be compounded 
daily, and that the respondent will be required to submit appropriate 
documentation to the SSA allocating any back pay award to the 
appropriate calendar quarters. Paragraph (e) requires that the ALJ's 
decision be served on all parties to the proceeding, OSHA, and the U.S. 
Department of Labor's Associate Solicitor for Fair Labor Standards. 
Paragraph (e) also provides that any ALJ decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the ARB. If no timely petition for review is 
filed with the ARB, the decision of the ALJ becomes the final decision 
of the

[[Page 13982]]

Secretary and is not subject to judicial review.
Section 1988.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 14 days 
within which to petition the ARB for review of that decision. The date 
of the postmark, facsimile transmittal, or electronic communication 
transmittal is considered the date of filing of the petition; if the 
petition is filed in person, by hand delivery or other means, the 
petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the 
ARB is not a matter of right but is accepted at the discretion of the 
ARB. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. If a 
timely petition for review is filed with the ARB, any relief ordered by 
the ALJ, except for that portion ordering reinstatement, is inoperative 
while the matter is pending before the ARB. When the ARB accepts a 
petition for review, the ALJ's factual determinations will be reviewed 
under the substantial evidence standard.
    This section also provides that, based on exceptional 
circumstances, the ARB may grant a motion to stay an ALJ's preliminary 
order of reinstatement under MAP-21, 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 MAP-21 
would be appropriate only where the respondent can establish the 
necessary criteria for equitable injunctive relief, i.e., irreparable 
injury, likelihood of success on the merits, a balancing of possible 
harms to the parties, and the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it 
will issue a final order providing relief to the complainant. The final 
order will require, where appropriate: Affirmative action to abate the 
violation; reinstatement of the complainant to his or her former 
position, together with the compensation (including back pay and 
interest), terms, conditions, and privileges of employment; and payment 
of compensatory damages, including, at the request of the complainant, 
the aggregate amount of all costs and expenses (including attorney and 
expert witness fees) reasonably incurred. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
pursuant to 26 U.S.C. 6621 and will be compounded daily, and the 
respondent will be required to submit appropriate documentation to the 
SSA allocating any back pay award to the appropriate calendar quarters. 
If the ARB determines that the respondent has not violated the law, an 
order will be issued denying the complaint. If, upon the request of the 
respondent, the ARB determines that a complaint was frivolous or was 
brought in bad faith, the ARB may award to the respondent a reasonable 
attorney fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions

Section 1988.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement
    This section provides the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It permits complainants to withdraw their 
complaints orally, and provides that, in such circumstances, OSHA will 
confirm a complainant's desire to withdraw in writing. It also provides 
for approval of settlements at the investigative and adjudicative 
stages of the case.
Section 1988.112 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 or the ALJ to submit the record of 
proceedings to the appropriate court pursuant to the rules of such 
court.
Section 1988.113 Judicial Enforcement
    This section describes the Secretary's authority under MAP-21 to 
obtain judicial enforcement of orders and terms of settlement 
agreements. MAP-21 expressly authorizes district courts to enforce 
orders issued by the Secretary under 49 U.S.C. 30171. Specifically, the 
statute provides that ``[w]henever any person fails to comply with an 
order issued under paragraph (3), the Secretary [of Labor] may file a 
civil action in the United States district court for the district in 
which the violation was found to occur to enforce such order. In 
actions brought under this paragraph, the district courts shall have 
jurisdiction to grant all appropriate relief, including injunctive 
relief and compensatory damages.'' 49 U.S.C. 30171(b)(5).
    All orders issued by the Secretary under 49 U.S.C. 30171 may also 
be enforced by any person on whose behalf an order was issued in 
district court, under 49 U.S.C. 30171(b)(6). The Secretary interprets 
these provisions to grant the district court authority to enforce 
preliminary orders of reinstatement. Subsection (b)(3) provides that 
the Secretary shall order the person who has committed a violation to 
reinstate the complainant to his or her former position, (49 U.S.C. 
30171(b)(3)(B)(ii)). Subsection (b)(2) also instructs the Secretary to 
accompany any reasonable cause finding that a violation has occurred 
with a preliminary order containing the relief prescribed by paragraph 
(b)(3)(B), which includes reinstatement, (see 49 U.S.C. 
30171(b)(3)(B)). Subsection (b)(2)(A) declares that any reinstatement 
remedy contained in a preliminary order is not stayed upon the filing 
of objections. 49 U.S.C. 30171(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 under paragraph (b)(3) include both preliminary orders issued 
under subsection (b)(2)(A) and final orders issued under subsection 
(b)(3), both of which may contain the relief of reinstatement as 
prescribed by subsection (b)(3)(B).
    This statutory interpretation is consistent with the Secretary's 
interpretation of similar language in the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century, 49 U.S.C. 42121, and 
Section 806 of the Corporate and Criminal Fraud Accountability Act of 
2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A. 
See Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, 
Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); 
Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 
2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d 
Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 
(W.D. Va. 2006), (decision vacated, appeal dismissed, No. 06-2295 (4th 
Cir. Feb. 20, 2008)).
Section 1988.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth MAP-21'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 after the 
date of the filing of

[[Page 13983]]

the complaint. See 49 U.S.C. 30171(b)(3)(E). This section also 
incorporates the statutory provisions that allow for a jury trial at 
the request of either party in a district court action and that specify 
the burdens of proof in a district court action.
    This section also requires that, within seven days after filing a 
complaint in district court, a complainant must provide a file-stamped 
copy of the complaint to OSHA, the ALJ, or the ARB, depending on where 
the proceeding is pending. A copy of the district court complaint also 
must be provided to the OSHA official who issued the findings and/or 
preliminary order, the Assistant Secretary, and the U.S. Department of 
Labor's Associate Solicitor for Fair Labor Standards. This provision is 
necessary to notify the agency that the complainant has opted to file a 
complaint in district court. This provision is not a substitute for the 
complainant's compliance with the requirements for service of process 
of the district court complaint contained in the Federal Rules of Civil 
Procedure and the local rules of the district court where the complaint 
is filed.
    Finally, the Secretary notes that although a complainant may file 
an action in district court if the Secretary has not issued a final 
decision within 210 days of the filing of the complaint with OSHA, 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. Thus, for example, after the ARB has issued a 
final decision denying a whistleblower complaint, the complainant no 
longer may file an action for de novo review in federal district court. 
The purpose of the ``kick-out'' provision is to aid the complainant in 
receiving a prompt decision. That goal is not implicated in a situation 
where the complainant already has received a final decision from the 
Secretary. In addition, permitting the complainant to file a new case 
in district court in such circumstances could conflict with the 
parties' rights to seek judicial review of the Secretary's final 
decision in the court of appeals. See 49 U.S.C. 30171(b)(4)(B) 
(providing that an order with respect to which review could have been 
obtained in the court of appeals shall not be subject to judicial 
review in any criminal or other civil proceeding).
Section 1988.115 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 MAP-21 requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1988.103) which was previously reviewed as a 
statutory requirement of MAP-21 and approved for use by the Office of 
Management and Budget (OMB), as part of the Information Collection 
Request (ICR) assigned OMB control number 1218-0236 under the 
provisions of the Paperwork Reduction Act of 1995 (PRA). See Public Law 
104-13, 109 Stat. 163 (1995). An ICR has been submitted to OMB to 
include the regulatory citation.
    OSHA has a particular interest in comments on the following issues:
     Whether the proposed information collection requirements 
are necessary for the proper performance of the Agency's functions, 
including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and 
costs) of the information collection requirements, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, utility, and clarity of the 
information collected; and
     Minimizing the burden on employees who must comply; for 
example, by using automated or other technological information 
collection and transmission techniques.
    In addition to having an opportunity to file comments with the 
Department, the PRA provides that an interested party may file comments 
on the information collection requirements contained in an interim 
final rule directly with OMB by mail: Office of Information and 
Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of 
Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 
20503; by Fax: 202-395-5806 (this is not a toll-free number); or by 
email: OIRA_submission@omb.eop.gov. Commenters are encouraged, but not 
required, to send a courtesy copy of any comments to the Department. 
See ADDRESSES section of the preamble. OMB will consider all written 
comments that the agency receives within thirty (30) days of 
publication of this Interim Final Rule in the Federal Register. In 
order to help ensure appropriate consideration, comments should mention 
OMB control number 1218-0236. Comments submitted in response to this 
rule are public records; therefore, OSHA cautions commenters about 
submitting personal information such as Social Security numbers and 
date of birth.
    To access the complete electronic copy of the related ICR, 
containing the Supporting Statement with attachments describing the 
paperwork requirement and determinations of the ICR in detail, visit 
the Web page, https://www.reginfo.gov/public/do/PRAMain, select 
``Department of Labor'' under the ``Currently under Review'' to view 
all DOL ICRs currently under OMB consideration, including the ICR 
related to this rulemaking.
    OSHA notes that a federal agency cannot conduct or sponsor a 
collection of information unless it is approved by OMB under the PRA 
and displays a currently valid OMB control number, and the public is 
not required to respond to a collection of information unless the 
collection of information displays a currently valid OMB control 
number. Also, notwithstanding any other provision of law, no person 
shall be subject to penalty for failing to comply with a collection of 
information if the collection of information does not display a 
currently valid OMB control number.

V. Administrative Procedure Act

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

[[Page 13984]]

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 
1995; Executive Order 13132

    The Department has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866, 
reaffirmed by Executive Order 13563, because it is not likely to: (1) 
Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866. Therefore, no economic impact analysis under Section 6(a)(3)(C) 
of Executive Order 12866 has been prepared. For the same reason, and 
because no notice of proposed rulemaking has been published, no 
statement is required under Section 202 of the Unfunded Mandates Reform 
Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural 
and interpretive in nature and is thus not expected to have a 
significant economic impact. Finally, this rule does not have 
``federalism implications.'' The rule does not have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' and therefore 
is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

    The notice and comment rulemaking procedures of Section 553 of the 
APA do not apply ``to interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' 5 
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment 
requirements are also exempt from the Regulatory Flexibility Act (RFA). 
See 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 procedure, practice, and interpretation within the meaning of 5 
U.S.C. 553; and, therefore, the rule is exempt from both the notice and 
comment rulemaking procedures of the APA and the requirements under the 
RFA.

List of Subjects in 29 CFR Part 1988

    Administrative practice and procedure, Automobile dealers, 
Employment, Investigations, Motor vehicle defects, Motor vehicle 
manufacturers, Part supplies, Reporting and recordkeeping requirements, 
Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of David 
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational 
Safety and Health.

    Signed at Washington, DC, on February 25, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.


0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1988 
is added to read as follows:

PART 1988--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER 
SECTION 31307 OF THE MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY 
ACT (MAP-21)

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1988.100 Purpose and scope.
1988.101 Definitions.
1988.102 Obligations and prohibited acts.
1988.103 Filing of retaliation complaint.
1988.104 Investigation.
1988.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1988.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1988.107 Hearings.
1988.108 Role of Federal agencies.
1988.109 Decision and orders of the administrative law judge.
1988.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1988.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1988.112 Judicial review.
1988.113 Judicial enforcement.
1988.114 District court jurisdiction of retaliation complaints.
1988.115 Special circumstances; waiver of rules.

    Authority: 49 U.S.C. 30171; Secretary of Labor's Order No. 1-
2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of 
Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 
2012).

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


Sec.  1988.100  Purpose and scope.

    (a) This part sets forth procedures for, and interpretations of, 
section 31307 of the Moving Ahead for Progress in the 21st Century Act 
(MAP-21), Public Law 112-141, 126 Stat. 405, 765 (July 6, 2012) 
(codified at 49 U.S.C. 30171). MAP-21 provides for employee protection 
from retaliation because the employee has engaged in protected activity 
pertaining to the manufacture or sale of motor vehicles and motor 
vehicle equipment.
    (b) This part establishes procedures under MAP-21 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 under MAP-21 for 
submission of complaints, investigations, issuance of findings and 
preliminary orders, objections to findings and orders, litigation 
before administrative law judges (ALJs), post-hearing administrative 
review, and withdrawals and settlements. In addition, these rules 
provide the Secretary's interpretations on certain statutory issues.


Sec.  1988.101  Definitions.

    As used in this part:
    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 MAP-21.
    Business days means days other than Saturdays, Sundays, and Federal 
holidays.
    Complainant means the person who filed a MAP-21 complaint or on 
whose behalf a complaint was filed.
    Dealer or Dealership means a person selling and distributing new 
motor vehicles or motor vehicle equipment primarily to purchasers that 
in good faith purchase the vehicles or equipment other than for resale.
    Defect includes any defect in performance, construction, a 
component, or material of a motor vehicle or motor vehicle equipment.
    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 motor vehicle manufacturer, dealer, part 
supplier, or dealership.
    Manufacturer means a person:

[[Page 13985]]

    (1) Manufacturing or assembling motor vehicles or motor vehicle 
equipment; or
    (2) Importing motor vehicles or motor vehicles equipment for 
resale.
    MAP-21 means Section 31307 of the Moving Ahead for Progress in the 
21st Century Act of 2012, Pub. L. 112-141, 126 Stat. 405, 765 (July 6, 
2012) (codified at 49 U.S.C. 30171).
    Motor vehicle means a vehicle driven or drawn by mechanical power 
and manufactured primarily for use on public streets, roads, and 
highways, but does not include a vehicle operated only on a rail line.
    Motor vehicle equipment means--
    (1) Any system, part, or component of a motor vehicle as originally 
manufactured;
    (2) Any similar part or component manufactured or sold for 
replacement or improvement of a system, part, or component, or as an 
accessory or addition to a motor vehicle; or
    (3) Any device or an article or apparel, including a motorcycle 
helmet and excluding medicine or eyeglasses prescribed by a licensed 
practitioner, that--
    (i) Is not a system, part or component of a motor vehicle; and
    (ii) Is manufactured, sold, delivered, or offered to be sold for 
use on public streets, roads, and highways with the apparent purpose of 
safeguarding users of motor vehicles against risk of accident, injury, 
or death.
    NHTSA means the National Highway Traffic Safety Administration of 
the United States Department of Transportation.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Person means an individual, partnership, company, corporation, 
association (incorporated or unincorporated), trust, estate, 
cooperative organization, or other entity.
    Respondent means the person named in the complaint who is alleged 
to have violated MAP-21.
    Secretary means the Secretary of Labor.


Sec.  1988.102  Obligations and prohibited acts.

    (a) No motor vehicle manufacturer, part supplier, or dealership may 
discharge or otherwise retaliate against, including, but not limited 
to, intimidating, threatening, restraining, coercing, blacklisting or 
disciplining, an employee with respect to the employee's compensation, 
terms, conditions, or privileges of employment because the employee, or 
any person acting pursuant to the employee's request, has engaged in 
any of the activities specified in paragraphs (b)(1) through (5) of 
this section.
    (b) An employee is protected against retaliation (as described in 
paragraph (a) of this section) by a motor vehicle manufacturer, part 
supplier, or dealership because he or she:
    (1) Provided, caused to be provided, or is about to provide (with 
any knowledge of the employer) or cause to be provided to the employer 
or the Secretary of Transportation, information relating to any motor 
vehicle defect, noncompliance, or any violation or alleged violation of 
any notification or reporting requirement of Chapter 301 of Title 49 of 
the United States Code;
    (2) Filed, or caused to be filed, or is about to file (with any 
knowledge of the employer) or cause to be filed a proceeding relating 
to any motor vehicle defect, noncompliance, or any violation or alleged 
violation of any notification or reporting requirement of Chapter 301 
of Title 49 of the United States Code;
    (3) Testified or is about to testify in such a proceeding;
    (4) Assisted or participated or is about to assist or participate 
in such a proceeding; or
    (5) Objected to, or refused to participate in, any activity that 
the employee reasonably believed to be in violation of any provision of 
Chapter 301 of Title 49 of the United States Code, or any order, rule, 
regulation, standard, or ban under such provision.


Sec.  1988.103  Filing of retaliation complaint.

    (a) Who may file. A person who believes that he or she has been 
discharged or otherwise retaliated against by any person in violation 
of MAP-21 may file, or have filed by any person on his or her behalf, a 
complaint alleging such retaliation.
    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the complainant 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 
MAP-21 occurs, any person who believes that he or she has been 
retaliated against in violation of the MAP-21 may file, or have filed 
by any person on his or her behalf, a complaint alleging such 
retaliation. The date of the postmark, facsimile transmittal, 
electronic communication transmittal, telephone call, hand-delivery, 
delivery to a third-party commercial carrier, or in-person filing at an 
OSHA office will be considered the date of filing. The time for filing 
a complaint may be tolled for reasons warranted by applicable case law. 
For example, OSHA may consider the time for filing a complaint to be 
tolled if a complainant mistakenly files a complaint with an agency 
other than OSHA within 180 days after an alleged adverse action.


Sec.  1988.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
will notify the respondent of the filing of the complaint, of the 
allegations contained in the complaint, and of the substance of the 
evidence supporting the complaint. Such materials will be redacted, if 
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and 
other applicable confidentiality laws. OSHA will also notify the 
respondent of its rights under paragraphs (b) and (f) of this section 
and paragraph (e) of Sec.  1988.110. OSHA will provide an unredacted 
copy of these same materials to the complainant (or the complainant's 
legal counsel if complainant is represented by counsel) and to the 
NHTSA.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to OSHA a written statement and any affidavits or documents 
substantiating its position. Within the same 20 days, the respondent 
may request a meeting with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party 
provide the other parties to the whistleblower complaint with a copy of 
submissions to OSHA that are pertinent to the whistleblower complaint. 
Alternatively, if a party does not provide its submissions to OSHA to 
the other party, OSHA will provide them to the other party (or the 
party's legal counsel if the party is represented by counsel) at a time 
permitting the other party an opportunity to respond. Before providing 
such materials to the other party, OSHA will redact them, if necessary, 
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other 
applicable confidentiality laws. OSHA will also provide each party with 
an

[[Page 13986]]

opportunity to respond to the other party's submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that a protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complaint shows that the adverse action 
took place within a temporal proximity of the protected activity, or at 
the first opportunity available to the respondent, giving rise to the 
inference that it was a contributing factor in the adverse action. If 
the required showing has not been made, the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, further investigation of 
the complaint will not be conducted if the respondent demonstrates by 
clear and convincing evidence that it would have taken the same adverse 
action in the absence of the complainant's protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, OSHA will proceed 
with the investigation. The investigation will proceed whenever it is 
necessary or appropriate to confirm or verify the information provided 
by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1988.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated MAP-21 and that preliminary 
reinstatement is warranted, OSHA will contact the respondent (or the 
respondent's legal counsel if respondent is represented by counsel) to 
give notice of the substance of the relevant evidence supporting the 
complainant's allegations as developed during the course of the 
investigation. This evidence includes any witness statements, which 
will be redacted to protect the identity of confidential informants 
where statements were given in confidence; if the statements cannot be 
redacted without revealing the identity of confidential informants, 
summaries of their contents will be provided. The complainant will also 
receive a copy of the materials that must be provided to the respondent 
under this paragraph. Before providing such materials, OSHA will redact 
them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 
552a, and other applicable confidentiality laws. The respondent will be 
given the opportunity to submit a written response, to meet with the 
investigator, to present statements from witnesses in support of its 
position, and to present legal and factual arguments. The respondent 
must present this evidence within 10 business days of OSHA's 
notification pursuant to this paragraph, or as soon thereafter as OSHA 
and the respondent can agree, if the interests of justice so require.


Sec.  1988.105  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 MAP-21.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief 
to the complainant. The preliminary order will require, where 
appropriate: Affirmative action to abate the violation; reinstatement 
of the complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney and expert witness 
fees) reasonably incurred. Interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily. The preliminary order will 
also require the respondent to submit appropriate documentation to the 
Social Security Administration allocating any back pay award to the 
appropriate calendar quarters.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested (or other means 
that allow OSHA to confirm receipt), to all parties of record (and each 
party's legal counsel if the party is represented by counsel). The 
findings and, where appropriate, the preliminary order will inform the 
parties of the right to object to the findings and/or order and to 
request a hearing, and of the right of the respondent to request an 
award of attorney fees not exceeding $1,000 from the ALJ, regardless of 
whether the respondent has filed objections, if the respondent alleges 
that the complaint was frivolous or brought in bad faith. The findings 
and, where appropriate, the preliminary order also will give the 
address of the Chief Administrative Law Judge, U.S. Department of 
Labor. At the same time, the Assistant Secretary will file with the 
Chief Administrative Law Judge a copy of the original complaint and a 
copy of the findings and/or order.
    (c) The findings and any preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and/or a request for hearing has been timely filed as 
provided at Sec.  1988.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

[[Page 13987]]

Subpart B--Litigation


Sec.  1988.106  Objections to the findings and the preliminary order 
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and/or preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney fees under MAP-21, 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.  1988.105. The objections, 
request for a hearing, and/or request for attorney fees must be in 
writing and state whether the objections are to the findings, the 
preliminary order, and/or whether there should be an award of attorney 
fees. The date of the postmark, facsimile transmittal, or electronic 
communication transmittal is considered the date of filing; if the 
objection is filed in person, by hand delivery or other means, the 
objection is filed upon receipt. Objections must be filed with the 
Chief Administrative Law Judge, U.S. Department of Labor, and copies of 
the objections must be mailed at the same time to the other parties of 
record, the OSHA official who issued the findings and order, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1988.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A of part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to an ALJ who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted de novo on the record. ALJs have broad 
discretion to limit discovery in order to expedite the hearing.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated and a single 
hearing will be conducted.
    (d) Formal rules of evidence will not apply, but rules or 
principles designed to assure production of the most probative evidence 
will be applied. The ALJ may exclude evidence that is immaterial, 
irrelevant, or unduly repetitious.


Sec.  1988.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding and must be served with copies of all documents in the case. 
At the Assistant Secretary's discretion, the Assistant Secretary may 
participate as a party or as amicus curiae at any time at any stage of 
the proceeding. This right to participate includes, but is not limited 
to, the right to petition for review of a decision of an ALJ, including 
a decision approving or rejecting a settlement agreement between the 
complainant and the respondent.
    (2) Parties must send copies of documents to OSHA and to the 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, only upon request of OSHA, or when OSHA is participating in 
the proceeding, or when service on OSHA and the Associate Solicitor is 
otherwise required by these rules.
    (b) The NHTSA, if interested in a proceeding, may participate as 
amicus curiae at any time in the proceeding, at NHTSA's discretion. At 
the request of NHTSA, copies of all documents in a case must be sent to 
NHTSA, whether or not it is participating in the proceeding.


Sec.  1988.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither OSHA's determination to dismiss a complaint without 
completing an investigation pursuant to Sec.  1988.104(e) nor OSHA's 
determination to proceed with an investigation is subject to review by 
the ALJ, and a complaint may not be remanded for the completion of an 
investigation or for additional findings on the basis that a 
determination to dismiss was made in error. Rather, if there otherwise 
is jurisdiction, the ALJ will hear the case on the merits or dispose of 
the matter without a hearing if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will require, where appropriate: 
Affirmative action to abate the violation; reinstatement of the 
complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions, and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney and expert witness 
fees) reasonably incurred. Interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily. The order will also require 
the respondent to submit appropriate documentation to the Social 
Security Administration allocating any back pay award to the 
appropriate calendar quarters.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the ALJ may award to the 
respondent a reasonable attorney fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring 
reinstatement or lifting an order of

[[Page 13988]]

reinstatement by the Assistant Secretary will be effective immediately 
upon receipt of the decision by the respondent. All other portions of 
the ALJ's order will be effective 14 days after the date of the 
decision unless a timely petition for review has been filed with the 
Administrative Review Board (ARB), U.S. Department of Labor. The 
decision of the ALJ will become the final order of the Secretary unless 
a petition for review is timely filed with the ARB and the ARB accepts 
the petition for review.


Sec.  1988.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney 
fees, must file a written petition for review with the ARB, which has 
been delegated the authority to act for the Secretary and issue final 
decisions under this part. The parties should identify in their 
petitions for review the legal conclusions or orders to which they 
object, or the objections may be deemed waived. A petition must be 
filed within 14 days of the date of the decision of the ALJ. The date 
of the postmark, facsimile transmittal, or electronic communication 
transmittal will be considered to be the date of filing; if the 
petition is filed in person, by hand delivery or other means, the 
petition is considered filed upon receipt. The petition must be served 
on all parties and on the Chief Administrative Law Judge at the time it 
is filed with the ARB. Copies of the petition for review must be served 
on the Assistant Secretary and on the Associate Solicitor, Division of 
Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If 
no timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the decision of the ALJ, unless a motion for reconsideration has been 
filed with the ALJ in the interim. In such case, the conclusion of the 
hearing is the date the motion for reconsideration is ruled upon or 14 
days after a new decision is issued. The ARB's final decision will be 
served upon all parties and the Chief Administrative Law Judge by mail. 
The final decision will also be served on the Assistant Secretary and 
on the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue a final order providing relief to the complainant. 
The final order will require, where appropriate: Affirmative action to 
abate the violation; reinstatement of the complainant to his or her 
former position, together with the compensation (including back pay and 
interest), terms, conditions, and privileges of the complainant's 
employment; and payment of compensatory damages, including, at the 
request of the complainant, the aggregate amount of all costs and 
expenses (including attorney and expert witness fees) reasonably 
incurred. Interest on back pay will be calculated using the interest 
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will 
be compounded daily. The order will also require the respondent to 
submit appropriate documentation to the Social Security Administration 
allocating any back pay award to the appropriate calendar quarters.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney fee, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1988.111  Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying OSHA, orally or in writing, 
of his or her withdrawal. OSHA then will confirm in writing the 
complainant's desire to withdraw and determine whether to approve the 
withdrawal. OSHA will notify the parties (and each party's legal 
counsel if the party is represented by counsel) of the approval of any 
withdrawal. If the complaint is withdrawn because of settlement, the 
settlement must be submitted for approval in accordance with paragraph 
(d) of this section. A complainant may not withdraw his or her 
complaint after the filing of objections to the Assistant Secretary's 
findings and/or preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1988.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.

[[Page 13989]]

    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, but before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
OSHA, the complainant, and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA's consent and achieves the consent of all three 
parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ, or 
by the ARB if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB, as appropriate.
    (e) Any settlement approved by OSHA, the ALJ, or the ARB will 
constitute the final order of the Secretary and may be enforced in 
United States district court pursuant to Sec.  1988.113.


Sec.  1988.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1988.109 and 1988.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the complainant 
resided on the date of the violation.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1988.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement, or a final order, including one approving a 
settlement agreement, issued under MAP-21, the Secretary may file a 
civil action seeking enforcement of the order in the United States 
district court for the district in which the violation was found to 
have occurred. Whenever any person has failed to comply with a 
preliminary order of reinstatement, or a final order, including one 
approving a settlement agreement, issued under MAP-21, a person on 
whose behalf the order was issued may file a civil action seeking 
enforcement of the order in the appropriate United States district 
court.


Sec.  1988.114  District court jurisdiction of retaliation complaints.

    (a) If the Secretary has not issued a final decision with 210 days 
of the filing of the complaint, and there is no showing that there has 
been delay due to the bad faith of the complainant, the complainant may 
bring an action at law or equity for de novo review in the appropriate 
district court of the United States, which will have jurisdiction over 
such an action without regard to the amount in controversy. At the 
request of either party, the action shall be tried by the court with a 
jury.
    (b) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1988.109.
    (c) Within seven days after filing a complaint in federal court, a 
complainant must file with OSHA, the ALJ, or the ARB, depending on 
where the proceeding is pending, a copy of the file-stamped complaint. 
A copy of the complaint also must be served on the OSHA official who 
issued the findings and/or preliminary order, the Assistant Secretary, 
and the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor.


Sec.  1988.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of 
these rules, or for good cause shown, the ALJ or the ARB on review may, 
upon application, after three-days' notice to all parties, waive any 
rule or issue such orders that justice or the administration of MAP-21 
requires.

[FR Doc. 2016-05414 Filed 3-15-16; 8:45 am]
BILLING CODE 4510-26-P