Procedures for Handling Retaliation Complaints Under the Employee Protection Provision of the Consumer Financial Protection Act of 2010, 14374-14389 [2016-05415]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 81, Number 52 (Thursday, March 17, 2016)]
[Rules and Regulations]
[Pages 14374-14389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05415]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1985

[Docket Number: OSHA-2011-0540]
RIN 1218-AC58


Procedures for Handling Retaliation Complaints Under the Employee 
Protection Provision of the Consumer Financial Protection Act of 2010

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document provides the final text of regulations governing 
the employee protection (whistleblower) provisions of the Consumer 
Financial Protection Act of 2010, Section 1057 of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act of 2010 (CFPA). An interim 
final rule establishing procedures for these provisions and requesting 
public comment was published in the Federal Register on April 3, 2014. 
Two comments were received. This rule responds to those comments and 
establishes the final procedures and time frames for the handling of 
retaliation complaints under CFPA, including procedures and timeframes 
for employee complaints to the Occupational Safety and Health 
Administration (OSHA), investigations by OSHA, appeals of OSHA 
determinations to an administrative law judge (ALJ) for a hearing de 
novo, hearings by ALJs, review of ALJ decisions by the Administrative 
Review Board (ARB) (acting on behalf of the Secretary of Labor) and 
judicial review of the Secretary of Labor's final decision.

DATES: This final rule is effective on March 17, 2016.

FOR FURTHER INFORMATION CONTACT: Viet Ly, Program Analyst, Directorate 
of Whistleblower Protection Programs, Occupational Safety and Health

[[Page 14375]]

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 Consumer Financial Protection Act of 2010 was enacted as Title 
X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 
2010 (Dodd-Frank Act), Pub. L. 111-203, 124 Stat. 1376, on July 21, 
2010. The Act established the Consumer Financial Protection Bureau 
(Bureau) as an independent bureau within the Federal Reserve System and 
gave the Bureau the power to regulate the offering and provision of 
consumer financial products or services under more than a dozen Federal 
consumer financial laws. The laws subject to the Bureau's jurisdiction 
generally include, among others, the Consumer Financial Protection Act 
of 2010, the Consumer Leasing Act of 1976 (15 U.S.C. 1667 et seq.), the 
Electronic Fund Transfer Act (15 U.S.C. 1693 et seq.), the Equal Credit 
Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Credit Billing Act 
(15 U.S.C. 1666 et seq.), the Fair Debt Collection Practices Act (15 
U.S.C. 1692 et seq.), the Fair Credit Reporting Act (15 U.S.C. 1681 et 
seq.), the Home Mortgage Disclosure Act of 1975 (12 U.S.C. 2801 et 
seq.), the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 
2601 et seq.), and the Truth in Lending Act (15 U.S.C. 1601 et seq.). 
The regulations to be enforced by the Bureau include certain 
regulations issued by seven ``transferor agencies,'' including the 
Board of Governors of the Federal Reserve System, the Federal Deposit 
Insurance Corporation, the Federal Trade Commission, the National 
Credit Union Administration, the Office of the Comptroller of the 
Currency, the Office of Thrift Supervision, and the Department of 
Housing and Urban Development. The Bureau also has concurrent authority 
to enforce the Telemarketing Sales Rule issued by the Federal Trade 
Commission. The Bureau published an initial list of such rules and 
regulations. See 76 FR 43569-71 (July 21, 2011). It has also revised 
and republished many of these regulations and announced its intention 
to continue doing so. See, e.g., Streamlining Inherited Regulations, 76 
FR 75825 (Dec. 5, 2011); Fall 2014 Unified Regulatory Agenda and 
Regulatory Plan, Consumer Financial Protection Bureau Statement of 
Regulatory Priorities, available at https://www.reginfo.gov/public/jsp/eAgenda/StaticContent/201410/Statement_3170.html.
    The Bureau also has authority to issue new rules, orders, and 
guidance, as may be necessary or appropriate to enable the Bureau to 
administer and carry out the purposes and objectives of the Federal 
consumer financial laws, and to prevent evasions thereof.
    More information about the Bureau, its jurisdiction, and the laws 
and regulations it enforces is available at its Web site, https://www.consumerfinance.gov/the-bureau.
    Section 1057 of the Dodd-Frank Act, codified at 12 U.S.C. 5567 and 
referred to throughout this final rule as CFPA, provides protection to 
covered employees, and authorized representatives of such employees, 
against retaliation because they provided information to their 
employer, to the Bureau, or to any other Federal, State, or local 
government authority or law enforcement agency relating to any 
violation of (or any act or omission that the employee reasonably 
believes to be a violation of) any provision of the Act or any other 
provision of law that is subject to the jurisdiction of the Bureau, or 
any rule, order, standard, or prohibition prescribed by the Bureau; 
testified or will testify in any proceeding resulting from the 
administration or enforcement of any provision of the Act or any other 
provision of law that is subject to the jurisdiction of the Bureau, or 
any rule, order, standard, or prohibition prescribed by the Bureau; 
filed, instituted, or caused to be filed or instituted any proceeding 
under any Federal consumer financial law; or objected to, or refused to 
participate in, any activity, policy, practice, or assigned task that 
the employee (or other such person) reasonably believed to be in 
violation of any law, rule, order, standard, or prohibition, subject to 
the jurisdiction of, or enforceable by, the Bureau. The section applies 
to covered persons and service providers. Examples of these include, 
but are not limited to, providers of the following financial products 
or services: (1) residential mortgage loan origination, brokerage, and 
servicing, modification and foreclosure relief services; (2) student 
loans; (3) payday loans; (4) debt collection; (5) credit reporting; (6) 
finance companies, lending, and loan servicing and brokerage; (7) money 
transmitting and check cashing services; (8) prepaid card services; (9) 
debt life services, and (10) certain service providers and certain 
affiliates related to such an entity.
    This final rule establishes procedures for the handling of 
whistleblower complaints under CFPA.

II. Summary of Statutory Procedures

    CFPA's whistleblower provisions include procedures that allow a 
covered employee to 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 complainant and respondent an opportunity to 
submit a response and meet with the investigator to present statements 
from witnesses, and conduct an investigation.
    The statute 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 
section 1985.104 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 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

[[Page 14376]]

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) at the Department of Labor. The 
filing of objections under CFPA 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, CFPA 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 occurred or the circuit where the 
complainant resided on the date of the violation.
    CFPA permits the employee to seek de novo review of the complaint 
by a United States district court in the event that the Secretary has 
not issued a final decision within 210 days after the filing of the 
complaint, or within 90 days after the date of receipt of a written 
determination. The provision provides that the court will have 
jurisdiction over the action without regard to the amount in 
controversy and that the case will be tried before a jury at the 
request of either party.
    Finally, CFPA provides that except in very limited circumstances, 
and notwithstanding any other provision of law, the rights and remedies 
provided for in the CFPA whistleblower provision may not be waived by 
any agreement, policy, form, or condition of employment, including by 
any predispute arbitration agreement, and no predispute arbitration 
agreement shall be valid or enforceable to the extent that it requires 
arbitration of a dispute arising under CFPA's whistleblower provision.

III. Summary and Discussion of Rulemaking Proceedings and Regulatory 
Provisions

    On April 3, 2014, OSHA published in the Federal Register an interim 
final rule (IFR), promulgating rules governing the employee protection 
(whistleblower) provisions of CFPA. 79 FR 18630. In addition to 
promulgating the IFR, OSHA's publication included a request for public 
comment on the IFR by June 2, 2014. OSHA received two comments: One 
from an individual, Chris Strickling, and one from an organization, 
International Bancshares Corporation (IBC). Mr. Strickling expressed 
general support for protecting whistleblowers, but his comment did not 
address any particular provision of the IFR. IBC criticized several 
provisions of the IFR, however its criticisms all related to statutory 
requirements in CFPA itself, rather than the regulatory choices that 
OSHA has made in these procedural rules. Accordingly, no changes were 
made to the rule based on public comments. Several small changes were 
made, however, to clarify the final rule and to make the final rule 
consistent with OSHA's other, recently promulgated whistleblower rules. 
These changes and OSHA's response to each of IBC's comments is 
discussed below.
    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 CFPA. Responsibility for receiving and 
investigating complaints under CFPA has been delegated to the Assistant 
Secretary for Occupational Safety and Health (Assistant Secretary) by 
Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). 
Hearings on determinations by the Assistant Secretary are conducted by 
the Office of Administrative Law Judges, and appeals from decisions by 
ALJs are decided by the ARB. Secretary of Labor's Order No. 2-2012, 77 
FR 69378 (Nov. 16, 2012).

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

Section 1985.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
CFPA and provides an overview of the procedures covered by these 
regulations. This section has been reworded slightly for consistency 
with other whistleblower procedural rules.
Section 1985.101 Definitions
    This section includes the general definitions from Section 1002 of 
the Dodd-Frank Act, 12 U.S.C. 5481, which are applicable to CFPA's 
whistleblower provisions. The Act defines the term ``affiliate'' as 
``any person that controls, is controlled by, or is under common 
control with another person.'' 12 U.S.C. 5481(1). It defines the term 
``consumer'' as ``an individual or an agent, trustee, or representative 
acting on behalf of an individual.'' 12 U.S.C. 5481(4).
    In the IFR, OSHA defined ``Bureau'' as ``the Bureau of Consumer 
Financial Protection.'' This definition was used in the CFPA. However, 
when the Bureau came into existence, it was named the Consumer 
Financial Protection Bureau. The definition of ``Bureau'' has been 
changed to reflect the current name of the agency.
    The Act defines a ``consumer financial product or service'' to 
include a wide variety of financial products or services offered or 
provided for use by consumers primarily for personal, family, or 
household purposes, and certain financial products or services that are 
delivered, offered, or provided in connection with a consumer financial 
product or service. See 12 U.S.C. 5481(5), (15). Examples of these 
include, but are not limited to, residential mortgage origination, 
lending, brokerage and servicing, and related products and services 
such as mortgage loan modification and foreclosure relief; student 
loans; payday loans; and other financial services such as debt 
collection, credit reporting, credit cards and related activities, 
money transmitting, check cashing and related activities, prepaid 
cards, and debt relief services.
    The Act defines ``covered person'' as ``any person that engages in 
offering or providing a consumer financial product or service'' and 
``any affiliate of [such] a person . . . if [the] affiliate acts as a 
service provider to such person.'' 12 U.S.C. 5481(6). It defines the 
term ``person'' as ``an individual, partnership, company, corporation, 
association (incorporated or unincorporated), trust, estate, 
cooperative organization, or other entity.'' 12 U.S.C. 5481(19). The 
law

[[Page 14377]]

defines ``service provider'' as ``any person that provides a material 
service to a covered person in connection with the offering or 
provision by such covered person of a consumer financial product or 
service, including a person that--(i) participates in designing, 
operating, or maintaining the consumer financial product or service; or 
(ii) processes transactions relating to the consumer financial product 
or service. . . .'' 12 U.S.C. 5481(26)(A). The term ``service 
provider'' does not include a person who solely offers or provides 
certain general business support services or advertising services. 12 
U.S.C. 5481(26)(B). Anyone who is a ``service provider'' is also 
``deemed to be a covered person to the extent that such person engages 
in the offering or provision of its own consumer financial product or 
service.'' 12 U.S.C. 5481(26)(C).
    CFPA defines ``covered employee'' as ``any individual performing 
tasks related to the offering or provision of a consumer financial 
product or service.'' 12 U.S.C. 5567(b). Consistent with the other 
whistleblower protection provisions administered by OSHA, OSHA 
interprets the term ``covered employee'' to also include individuals 
presently or formerly working for, individuals applying to work for, 
and individuals whose employment could be affected by a covered person 
or service provider where such individual was performing tasks related 
to the offering or provision of a consumer financial product or service 
at the time that the individual engaged in protected activity under 
CFPA. See, e.g., 29 CFR 1979.101; 29 CFR 1980.101(g); 29 CFR 1981.101; 
29 CFR 1982.101(d); 29 CFR 1983.101(h). OSHA believes this 
interpretation of the term ``covered employee'' best implements the 
broad statutory protections of CFPA, which aim to protect individuals 
who perform tasks related to the offering or provision of a consumer 
financial product or service from termination or any other form of 
retaliation resulting from their protected activity under CFPA. OSHA 
received no comments on this section of the IFR. In addition to the 
change in the Bureau's official name noted above, OSHA moved the rule 
of construction that a person that is a service provider shall be 
deemed to be a covered person to the extent that such person engages in 
the offering or provision of its own consumer financial product or 
service from the definition of ``covered person'' in paragraph (j) to 
the definition of ``service provider'' in paragraph (p) to better 
mirror the statutory definitions in 12 U.S.C. 5481.
Section 1985.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under CFPA 
and the conduct that is prohibited in response to any protected 
activities. As described above, CFPA protects individuals who provide 
information to their employer, to the Bureau, or to any other Federal, 
State, or local government authority or law enforcement agency relating 
to any violation of (or any act or omission that the employee 
reasonably believes to be a violation of) any provision of the Act or 
any other provision of law that is subject to the jurisdiction of the 
Bureau, or any rule, order, standard, or prohibition prescribed by the 
Bureau. CFPA also protects individuals who object to, or refuse to 
participate in, any activity, policy, practice, or assigned task that 
the employee (or other such person) reasonably believes to be in 
violation of any law, rule, order, standard, or prohibition, subject to 
the jurisdiction of, or enforceable by, the Bureau.
    In order to have a ``reasonable belief'' under CFPA, a complainant 
must have both a subjective, good faith belief and an objectively 
reasonable belief that the complained-of conduct violates one of the 
listed categories of law. See 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 
complained of violated the relevant law, rule, order, standard, or 
prohibition. See id. 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 complained of 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.
    IBC raised concerns that the scope of protected activity under this 
section had the potential to be so broad as to be practically 
unworkable. In particular, IBC was concerned that under 29 CFR 
1985.102(b) covered employees are protected from reporting alleged 
violations of not only the federal consumer protection laws that were 
transferred, in whole or in part, to the Bureau, but also for 
violations of any law subject to the jurisdiction of, or enforceable by 
the Bureau, which includes the Bureau's ``wide-ranging catchall 
authority to regulate `unfair, deceptive, or abusive practices' . . . 
related to the provision of consumer financial products or services.'' 
The text of 29 CFR 1985.102(b) parallels the statutory text in 12 
U.S.C. 5567(a). OSHA believes the provision accurately reflects the 
scope of protected activity in the statute and has made no changes in 
response to this comment.
Section 1985.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation 
complaint under CFPA. To be timely, a complaint must be filed within 
180 days of when the alleged violation occurs. Under Delaware State 
College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be 
when the retaliatory decision has been both made and communicated to 
the complainant. In other words, the limitations period commences once 
the employee is aware or reasonably should be aware of the employer's 
decision 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 CFPA may be tolled for reasons 
warranted by applicable case law. For example, OSHA may consider the 
time for filing a complaint equitably tolled if a complainant 
mistakenly files a complaint with an agency other than OSHA within 180 
days after an alleged adverse action.
    Complaints filed under CFPA 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 
CFPA is not a formal document and need not conform to the pleading 
standards for complaints filed in federal district court articulated in 
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. 
Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB 
No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 25, 2011) (holding that 
whistleblower complaints filed with OSHA under analogous provisions in

[[Page 14378]]

the Sarbanes-Oxley Act need not conform to federal court pleading 
standards). Rather, the complaint filed with OSHA under this section 
simply alerts OSHA to the existence of the alleged retaliation and the 
complainant's desire that OSHA investigate the complaint. Upon receipt 
of the complaint, OSHA is to determine whether the ``complaint, 
supplemented as appropriate by interviews of the complainant'' alleges 
``the existence of facts and evidence to make a prima facie showing.'' 
29 CFR 1985.104(e). As explained in section 1985.104(e), if the 
complaint, supplemented as appropriate, contains a prima facie 
allegation, and the respondent does not show clear and convincing 
evidence that it would have taken the same action in the absence of the 
alleged protected activity, OSHA conducts an investigation to determine 
whether there is reasonable cause to believe that retaliation has 
occurred. See 12 U.S.C. 5567(c)(2)(B), 29 CFR 1985.104(e).
    IBC commented that whistleblowers generally should be required to 
use employer-sponsored reporting programs as a condition of being 
entitled to a whistleblower award. IBC further expressed the concern 
that ``the interim final rules do not require whistleblowers to first 
report internally before filing a complaint and thus, . . . many 
employees will bypass established internal procedures and take their 
concerns directly and exclusively to the DOL/OSHA.'' IBC further noted 
that many financial institutions have developed strong internal 
compliance procedures to encourage employees, agents, and other company 
insiders to report suspected violations of applicable law, and to 
protect those who make such reports. These mechanisms assist financial 
institutions in promptly addressing violations of law and company 
policy. OSHA agrees with IBC that internal reporting mechanisms, 
particularly those that include protections of an employee's 
confidentiality and safeguards against retaliation, can play a 
constructive role in ensuring that a provider of consumer financial 
products and services fully complies with consumer financial protection 
laws and regulations. These policies can foster a culture of compliance 
by helping to ensure that employees feel free to come forward with 
concerns regarding potential violations of the law. However, CFPA 
protects employees regardless of whether they report internally or to a 
government agency. See 12 U.S.C. 5567(a) (listing activities protected 
under CFPA). The statute, moreover, requires employees who believe they 
have suffered retaliation for engaging in protected whistleblowing, to 
file a complaint with the Secretary of Labor within 180 days of the 
retaliation. See 12 U.S.C. 5567(c)(1). OSHA does not have authority to 
impose an internal reporting requirement as a prerequisite to filing a 
retaliation complaint with OSHA. Accordingly, OSHA has made no changes 
to this section.
Section 1985.104 Investigation
    This section describes the procedures that apply to the 
investigation of CFPA complaints. Paragraph (a) of this section 
outlines the procedures for notifying the parties and the Bureau of the 
complaint and notifying the respondent of its rights under these 
regulations. Paragraph (b) describes the procedures for the respondent 
to submit its response to the complaint. Paragraph (c) describes OSHA's 
procedures for sharing a party's submissions during a whistleblower 
investigation with the other parties to the investigation. It has been 
revised to encourage the parties to provide documents to each other 
during the investigation and to clarify the opportunities for each 
party to provide information to OSHA during the investigation. 
Paragraph (d) of this section discusses confidentiality of information 
provided during investigations.
    Paragraph (e) of this section sets forth the applicable burdens of 
proof. CFPA 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 qualifier ``(i.e. a 
non-frivolous allegation)'' has been removed from paragraph (e)(1) in 
order to make it consistent with other whistleblower regulations. 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) (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 (ERA), which is the same as that under CFPA, 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 CFPA 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 
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 Addis v. Dep't of Labor, 575 F.3d 
688, 689-91 (7th Cir. 2009) (discussing Marano as applied to analogous 
whistleblower provision in the ERA); Clarke v. Navajo Express, Inc., 
ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) (discussing 
burdens of proof under an analogous whistleblower provision in the 
Surface Transportation Assistance Act (STAA)). 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

[[Page 14379]]

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 of 2002 whistleblower provision), aff'd sub nom. 
Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 
936, 2010 WL 4746668 (5th Cir. 2010).
    If OSHA finds reasonable cause to believe that the alleged 
protected activity was a contributing factor in the adverse action, 
OSHA may not order relief if the employer demonstrates by ``clear and 
convincing evidence'' that it would have taken the same action in the 
absence of the protected activity. See 12 U.S.C. 5567(c)(3)(C). 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, 2011 WL 2614326, at * 3.
    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 STAA 
respondent the opportunity to review the substance of the evidence and 
respond, prior to ordering preliminary reinstatement). The phrase, 
``Before providing such materials, OSHA will redact them, if necessary, 
in accordance with the Privacy Act of 1974'' has been changed to 
``Before providing such materials, OSHA will redact them, if necessary, 
consistent with the Privacy Act of 1974'' to be consistent with OSHA's 
practices under other whistleblower statutes.
    IBC commented on this section, noting that OSHA interprets the 
prima facie case requirement as allowing the complainant to meet its 
burden through the complaint supplemented by interviews of the 
complainant whereas the respondent must meet the more difficult ``clear 
and convincing'' standard. In IBC's view, this burden shifting regime 
is unfair and presents an unequal playing field placing the employer at 
a significant disadvantage.
    However, as explained herein, the requirement that the complainant 
make a prima facie showing based on the complaint and interviews of the 
complainant is a threshold requirement for OSHA to conduct an 
investigation. The purpose of this threshold requirement is to stem 
frivolous complaints. Once an investigation commences, the statute 
requires OSHA to determine, based on all evidence submitted or 
developed by OSHA, whether there is reasonable cause to believe that 
the complaint has merit. 12 U.S.C. 5567(2)(A). In addition, even when 
OSHA has reasonable cause to believe that protected whistleblowing 
contributed to action taken against an employee, the statute states 
that the Secretary 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 protected whistleblowing. 12 U.S.C. 5567(c)(3)(C). 
OSHA believes its regulations accurately reflect these statutory 
requirements. Apart from the changes to paragraphs (c) and (e) 
described above, OSHA has reworded paragraphs (a) and (f) slightly to 
clarify the paragraphs without changing their meaning.
Section 1985.105 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, and compensatory damages. 
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.
    As explained in the IFR, in ordering interest on back pay under 
CFPA, 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. 79 FR 18635. The 
Secretary has long applied the interest rate in 26 U.S.C. 6621 to 
calculate interest on backpay in whistleblower cases. Doyle v. Hydro 
Nuclear Servs., ARB Nos. 99-041, 99-042, 00-012, 2000 WL 694384, at * 
14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express, Inc., 
ARB No. 09-070, 2011 WL 1247212, at * 2 (ARB Mar. 17, 2011); Pollock v. 
Cont'l Express, ARB Nos. 07-073, 08-051, 2010 WL 1776974, at * 8 (ARB 
Apr. 10, 2010); Murray v. Air Ride, Inc., ARB No. 00-045, slip op. at 9 
(ARB Dec. 29, 2000). Section 6621 provides the appropriate measure of 
compensation under CFPA and other DOL-administered whistleblower 
statutes because it ensures the complainant will be placed in the same 
position he or she would have been in if no unlawful retaliation 
occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB No. 99-061, 
slip op. at 5 (ARB July 16, 1999) (interest awards pursuant to Sec.  
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 [Sec.  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, Inc., 283 N.L.R.B. No. 181, 1987 WL 89652, 
at * 2 (NLRB May 28, 1987) (observing that ``the short-term Federal 
rate [used by Sec.  6621] is based on average market yields on 
marketable Federal obligations and is influenced by private economic 
market forces''). Similarly, as explained in the IFR, daily compounding 
of the interest award ensures that complainants are made whole for

[[Page 14380]]

unlawful retaliation in violation of CFPA. 79 FR 18635.
    As explained in the IFR, in ordering back pay, OSHA will require 
the respondent to submit the appropriate documentation to the Social 
Security Administration allocating the back pay to the appropriate 
calendar quarters. Requiring the reporting of back pay allocation to 
the SSA serves the remedial purposes of CFPA by ensuring that employees 
subjected to retaliation are truly made whole. See 79 FR 18635; see 
also Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10, 2014 
WL 3897178, at * 4-5 (NLRB Aug. 8, 2014).
    Finally, as noted in the IFR, in limited 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. See 79 FR 18636. Such ``economic 
reinstatement'' is akin to an order for 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 limited 
circumstances where reinstatement would not be appropriate. 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''); 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'').
    IBC made two comments on this section of the rule. First, IBC 
expressed the view that 60 days is too short a time for OSHA to 
complete an investigation, and suggested that 120 days would be more 
appropriate. OSHA notes that the 60-day time frame for an investigation 
is provided for in the CFPA statute. See 12 U.S.C. 5567(2)(A). However, 
60 days is often not enough time for the agency to complete a 
whistleblower investigation that gives the parties adequate opportunity 
to present their evidence to OSHA. The fact that an investigation 
extends beyond 60 days will not deprive OSHA of jurisdiction to 
complete the investigation. Cf., Roadway Express, Inc. v. Dole, 929 
F.2d 1060, 1066 (5th Cir. 1991) (finding Secretary does not lose 
jurisdiction over whistleblower complaint when a final decision is not 
issued within 120 days of completion of the hearing).
    IBC also stated that the potential $1,000 penalty against 
complainants who submit frivolous whistleblower complaints is de 
minimis and will not deter such claims. In IBC's view, the rules did 
not provide much protection against frivolous complaints. OSHA notes 
that, as a protection against frivolous complaints, under 12 U.S.C. 
5567(c)(3), OSHA must dismiss complaints that do not meet the prima 
facie allegation requirement without investigation. The $1,000 
potential penalty for frivolous complaints is capped by the statute, 
and OSHA does not have authority to increase this penalty. See 12 
U.S.C. 5567(c)(4)(C). Accordingly, OSHA has made no changes to this 
section in response to IBC's comments. OSHA has omitted an unnecessary 
abbreviation in paragraph (a)(1).

Subpart B--Litigation

Section 1985.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing
    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, within 30 days of 
receipt of the findings. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal is considered the 
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The 
filing of objections also is considered a request for a hearing before 
an ALJ. Although the parties are directed to serve a copy of their 
objections on the other parties of record, as well as the OSHA official 
who issued the findings and order, the Assistant Secretary, and the 
U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards, the failure to serve copies of the objections on the other 
parties of record does not affect the ALJ's jurisdiction to hear and 
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear 
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at * 7 (ARB Oct. 
31, 2005).
    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 CFPA 
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. OSHA received no comments on this section, 
and no changes were made to it.
Section 1985.107 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. OSHA received no comments on this section, and no changes 
were made to it.
Section 1985.108 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 CFPA. 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

[[Page 14381]]

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 Bureau, if interested in 
a proceeding, also may participate as amicus curiae at any time in the 
proceedings. OSHA received no comments on this section. However, OSHA 
has revised section (a)(2) slightly to clarify that documents must be 
provided to the Assistant Secretary and the Associate Solicitor for 
Fair Labor Standards during the litigation 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.
Section 1985.109 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 CFPA. 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 12 U.S.C. 5567(c)(3)(C).
    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 1985.104 is not subject 
to review. Thus, section 1985.109(c) clarifies that OSHA's 
determinations on whether to proceed with an investigation under CFPA 
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 CFPA and, as 
discussed under section 1985.105 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 Social Security Administration 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 Secretary and is not subject to judicial review. 
OSHA received no comments on this section. OSHA omitted an unnecessary 
abbreviation from this section but has made no other changes to it.
Section 1985.110 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 CFPA, 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 CFPA 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 
under 26 U.S.C. 6621 and will be compounded daily, and the respondent 
will be required to submit appropriate documentation to the Social 
Security Administration 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 reasonable attorney fees, not 
exceeding $1,000. OSHA received no comments on this section. OSHA has 
removed an unnecessary abbreviation from this section, but has made no 
other changes to it.

Subpart C--Miscellaneous Provisions

Section 1985.111 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

[[Page 14382]]

approval of settlements at the investigative and adjudicative stages of 
the case. OSHA received no comments on this section and has made no 
changes to it.
Section 1985.112 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. OSHA received no comments on this section and has made no 
changes to it.
Section 1985.113 Judicial Enforcement
    This section describes the Secretary's authority under CFPA to 
obtain judicial enforcement of orders and terms of settlement 
agreements. CFPA expressly authorizes district courts to enforce orders 
issued by the Secretary under 12 U.S.C. 5567. Specifically, the statute 
provides that ``[i]f any person has failed to comply with a final order 
issued under paragraph (4), 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 have occurred, or in the United States 
district court for the District of Columbia, 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.'' 12 U.S.C. 5567(c)(5)(A).
    All orders issued by the Secretary under 12 U.S.C. 5567 may also be 
enforced by any person on whose behalf an order was issued in district 
court, under 12 U.S.C. 5567(c)(5)(B). The Secretary interprets these 
provisions to grant the district court authority to enforce preliminary 
orders of reinstatement. Subsection (c)(2)(B) provides that the 
Secretary shall order the person who has committed a violation to 
reinstate the complainant to his or her former position (12 U.S.C. 
5567(c)(2)(B)). Subsection (c)(2)(B) 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 
(4)(B), which includes reinstatement, (see 12 U.S.C. 5567(c)(2)(B)). 
Subsection (c)(2)(C) declares that any reinstatement remedy contained 
in a preliminary order is not stayed upon the filing of objections. 12 
U.S.C. 5567(c)(2)(C) (``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 
(c)(5) include both preliminary orders issued under subsection 
(c)(2)(B), and final orders issued under subsection (c)(4)(A), both of 
which may contain the relief of reinstatement as prescribed by 
subsection (c)(4)(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)). OSHA received no comments on this section. OSHA 
has revised this section slightly to more closely parallel the 
provisions of the statute regarding the proper venue for an enforcement 
action.
Section 1985.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth CFPA'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, under certain 
circumstances. CFPA permits a complainant to file an action for de novo 
review in the appropriate district court if there has been no final 
decision of the Secretary within 210 days after the date of the filing 
of the complaint, or within 90 days after the date of receipt of a 
written determination. 12 U.S.C. 5567(c)(4)(D)(i). ``Written 
determination'' refers to the Assistant Secretary's written findings 
issued at the close of OSHA's investigation under section 1985.105(a). 
See 12 U.S.C. 5567(c)(2)(A)(ii). The Secretary's final decision is 
generally the decision of the ARB issued under section 1985.110. In 
other words, a complainant may file an action for de novo review in the 
appropriate district court in either of the following two 
circumstances: (1) A complainant may file a de novo action in district 
court within 90 days of receiving the Assistant Secretary's written 
findings issued under section 1985.105(a), or (2) a complainant may 
file a de novo action in district court if more than 210 days have 
passed since the filing of the complaint and the Secretary has not 
issued a final decision. The plain language of 12 U.S.C. 
5567(c)(4)(D)(i), by distinguishing between actions that can be brought 
if the Secretary has not issued a ``final decision'' within 210 days 
and actions that can be brought within 90 days after a ``written 
determination,'' supports allowing de novo actions in district court 
under either of the circumstances described above.
    However the Secretary believes that CFPA does not permit 
complainants to initiate an action in federal court after the Secretary 
issues a final decision, even if the date of the final decision is more 
than 210 days after the filing of the complaint or within 90 days of 
the complainant's receipt of the Assistant Secretary's written 
findings. 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 conflicts with the parties' rights to seek 
judicial review of the Secretary's final decision in the court of 
appeals. See 12 U.S.C. 5567(c)(4)(E) (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).
    Under CFPA, the Assistant Secretary's written findings become the 
final order of the Secretary, not subject to judicial review, if no 
objection is filed within 30 days. See 12 U.S.C. 5567(c)(2)(C). Thus, a 
complainant may need to file timely objections to the Assistant 
Secretary's findings in order to preserve the right to file an action 
in district court.
    This section also requires that, within seven days after filing a 
complaint in district court, a complainant must provide a file-stamped 
copy of the complaint to OSHA, the ALJ, or the ARB, depending on where 
the proceeding is pending. In all cases, 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 OSHA that the 
complainant has opted to file a

[[Page 14383]]

complaint in district court. This provision is not a substitute for the 
complainant's compliance with the requirements for service of process 
of the district court complaint contained in the Federal Rules of Civil 
Procedure and the local rules of the district court where the complaint 
is filed. The section also incorporates the statutory provisions which 
allow for a jury trial at the request of either party in a district 
court action and specify the remedies and burdens of proof in a 
district court action. OSHA received no comments on this section and 
has made no changes to it.
Section 1985.115 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 CFPA requires. OSHA received no comments on this 
section and has made no changes to it.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Section 1985.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The 
assigned OMB control number is 1218-0236.

V. Administrative Procedure Act

    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 these 
regulations, which provide the procedures for the handling of 
retaliation complaints. The Assistant Secretary, however, sought and 
considered comments to enable the agency to improve the rules by taking 
into account the concerns of interested persons.
    Furthermore, because this rule is procedural and interpretative 
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that 
a rule is effective 30 days after publication in the Federal Register 
is inapplicable. The Assistant Secretary also finds good cause to 
provide an immediate effective date for this final rule. It is in the 
public interest that the rule be effective immediately so both parties 
may know what procedures are applicable to pending cases.

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 section 3(f)(4) of Executive 
Order 12866, as reaffirmed by Executive Order 13563, because it is not 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866. Therefore, no regulatory impact analysis under 
Section 6(a)(3)(C) of Executive Order 12866 has been prepared.
    For this 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. 1531 et seq. 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 
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). Rules that are exempt 
from APA notice and comment requirements are also exempt from the 
Regulatory Flexibility Act (RFA). See SBA Office of Advocacy, A Guide 
for Government Agencies: How to Comply with the Regulatory Flexibility 
Act 9 (May 2012); also found at: https://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf. This is a rule of agency procedure, 
practice, and interpretation within the meaning of that section; 
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 1985

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

Authority and Signature

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

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

    Accordingly, for the reasons set out in the preamble, 29 CFR part 
1985 is revised to read as follows:

PART 1985--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER THE 
EMPLOYEE PROTECTION PROVISION OF THE CONSUMER FINANCIAL PROTECTION 
ACT OF 2010

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1985.100 Purpose and scope.
1985.101 Definitions.
1985.102 Obligations and prohibited acts.
1985.103 Filing of retaliation complaint.
1985.104 Investigation.
1985.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1985.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1985.107 Hearings.
1985.108 Role of Federal agencies.
1985.109 Decision and orders of the administrative law judge.
1985.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1985.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1985.112 Judicial review.
1985.113 Judicial enforcement.
1985.114 District court jurisdiction of retaliation complaints.
1985.115 Special circumstances; waiver of rules.

    Authority:  12 U.S.C. 5567; Secretary of Labor's Order No. 1-
2012 (Jan. 18, 2012), 77

[[Page 14384]]

FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2-2012, 77 
FR 69378 (Nov. 16, 2012).

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


Sec.  1985.100  Purpose and scope.

    (a) This Part sets forth procedures for, and interpretations of, 
the employee protection provision of the Consumer Financial Protection 
Act of 2010, Section 1057 of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act of 2010 (CFPA or the Act), Pub. L. 111-203, 124 
Stat. 1376, 1955 (July 21, 2010) (codified at 12 U.S.C. 5567). CFPA 
provides for employee protection from retaliation because the employee 
has engaged in protected activity pertaining to the offering or 
provision of consumer financial products or services.
    (b) This part establishes procedures under CFPA 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 CFPA 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.  1985.101  Definitions.

    As used in this part:
    (a) Affiliate means any person that controls, is controlled by, or 
is under common control with another person.
    (b) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under CFPA.
    (c) Bureau means the Consumer Financial Protection Bureau.
    (d) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (e) CFPA means Section 1057 of the Dodd-Frank Wall Street Reform 
and Consumer Protection Act of 2010, Pub. L. 111-203, 124 Stat. 1376, 
1955 (July 21, 2010) (codified at 12 U.S.C. 5567).
    (f) Complainant means the person who filed a CFPA complaint or on 
whose behalf a complaint was filed.
    (g) Consumer means an individual or an agent, trustee, or 
representative acting on behalf of an individual.
    (h) Consumer financial product or service means any financial 
product or service that is:
    (1) Described in one or more categories in 12 U.S.C. 5481(15) and 
is offered or provided for use by consumers primarily for personal, 
family, or household purposes; or
    (2) Described in clause (i), (iii), (ix), or (x) of 12 U.S.C. 
5481(15)(A), and is delivered, offered, or provided in connection with 
a consumer financial product or service referred to in subparagraph 
(1).
    (i) Covered employee means any individual performing tasks related 
to the offering or provision of a consumer financial product or 
service. The term ``covered employee'' includes an individual presently 
or formerly working for, an individual applying to work for, or an 
individual whose employment could be affected by a covered person or 
service provider where such individual was performing tasks related to 
the offering or provision of a consumer financial product or service at 
the time that the individual engaged in protected activity under CFPA.
    (j) Covered person means --
    (1) Any person that engages in offering or providing a consumer 
financial product or service, or
    (2) Any affiliate of such a person if such affiliate acts as a 
service provider to such person, or
    (k) Federal consumer financial law means any law described in 12 
U.S.C. 5481(14).
    (l) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (m) Person means an individual, partnership, company, corporation, 
association (incorporated or unincorporated), trust, estate, 
cooperative organization, or other entity.
    (n) Respondent means the person named in the complaint who is 
alleged to have violated the Act.
    (o) Secretary means the Secretary of Labor or person to whom 
authority under CFPA has been delegated.
    (p) Service provider means any person that provides a material 
service to a covered person in connection with the offering or 
provision by such covered person of a consumer financial product or 
service, including a person that--
    (1) Participates in designing, operating, or maintaining the 
consumer financial product or service; or
    (2) Processes transactions relating to the consumer financial 
product or service (other than unknowingly or incidentally transmitting 
or processing financial data in a manner that such data is 
undifferentiated from other types of data of the same form as the 
person transmits or processes);
    (3) The term ``service provider'' does not include a person solely 
by virtue of such person offering or providing to a covered person:
    (i) A support service of a type provided to businesses generally or 
a similar ministerial service; or
    (ii) Time or space for an advertisement for a consumer financial 
product or service through print, newspaper, or electronic media.
    (4) A person that is a service provider shall be deemed to be a 
covered person to the extent that such person engages in the offering 
or provision of its own consumer financial product or service.
    (q) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1985.102  Obligations and prohibited acts.

    (a) No covered person or service provider may terminate or in any 
other way retaliate against, or cause to be terminated or retaliated 
against, including, but not limited to, intimidating, threatening, 
restraining, coercing, blacklisting or disciplining, any covered 
employee or any authorized representative of covered employees because 
such employee or representative, whether at the employee's initiative 
or in the ordinary course of the employee's duties (or any person 
acting pursuant to a request of the employee), engaged in any of the 
activities specified in paragraphs (b)(1) through (4) of this section. 
(b) A covered employee or authorized representative is protected 
against retaliation (as described in paragraph (a) of this section) by 
a covered person or service provider because he or she:
    (1) Provided, caused to be provided, or is about to provide or 
cause to be provided to the employer, the Bureau, or any other State, 
local, or Federal, government authority or law enforcement agency, 
information relating to any violation of, or any act or omission that 
the employee reasonably believes to be a violation of, any provision of 
Title X of the Dodd-Frank Wall Street Reform and Consumer Protection 
Act of 2010, Pub. L. 111-203, 124 Stat. 1376, 1955 (July 21, 2010), or 
any other provision of law that is subject to the jurisdiction of the 
Bureau, or any rule, order, standard, or prohibition prescribed by the 
Bureau;
    (2) Testified or will testify in any proceeding resulting from the 
administration or enforcement of any provision of Title X of the Dodd-
Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 
111-203, 124 Stat. 1376, 1955 (July 21, 2010), or

[[Page 14385]]

any other provision of law that is subject to the jurisdiction of the 
Bureau, or any rule, order, standard, or prohibition prescribed by the 
Bureau;
    (3) Filed, instituted, or caused to be filed or instituted any 
proceeding under any Federal consumer financial law; or
    (4) Objected to, or refused to participate in, any activity, 
policy, practice, or assigned task that the employee (or other such 
person) reasonably believed to be in violation of any law, rule, order, 
standard, or prohibition subject to the jurisdiction of, or enforceable 
by, the Bureau.


Sec.  1985.103  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 CFPA 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 
CFPA occurs, any person who believes that he or she has been retaliated 
against in violation of the Act 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 equitably tolled if a 
complainant mistakenly files a complaint with an agency other than OSHA 
within 180 days after an alleged adverse action.


Sec.  1985.104  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.  1985.110. 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 
Bureau.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
and the complainant each may submit to OSHA a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent and the complainant each may request a meeting 
with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party 
provide the other parties to the whistleblower complaint with a copy of 
submissions to OSHA that are pertinent to the whistleblower complaint. 
Alternatively, if a party does not provide its submissions to OSHA to 
the other party, OSHA will provide them to the other party (or the 
party's legal counsel if the party is represented by counsel) at a time 
permitting the other party an opportunity to respond. Before providing 
such materials to the other party, OSHA will redact them, if necessary, 
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other 
applicable confidentiality laws. OSHA will also provide each party with 
an opportunity to respond to the other party's submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that 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.  1985.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated CFPA 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

[[Page 14386]]

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 investigators, to present 
statements from witnesses in support of its position, and to present 
legal and factual arguments. The respondent must present this evidence 
within 10 business days of 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.  1985.105  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 CFPA.
    (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.  1985.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1985.106  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 CFPA, 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.  1985.105. 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.  1985.107  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

[[Page 14387]]

immaterial, irrelevant, or unduly repetitious.


Sec.  1985.108  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 Bureau, if interested in a proceeding, may participate as 
amicus curiae at any time in the proceeding, at the Bureau's 
discretion. At the request of the Bureau, copies of all documents in a 
case must be sent to the Bureau, whether or not it is participating in 
the proceeding.


Sec.  1985.109  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.  1985.104(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 reasonable attorney fees, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the Administrative Review Board (ARB), U.S. 
Department of Labor. The decision of the ALJ will become the final 
order of the Secretary unless a petition for review is timely filed 
with the ARB and the ARB accepts the petition for review.


Sec.  1985.110  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

[[Page 14388]]

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.  1985.111  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.  1985.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, 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.  1985.113.


Sec.  1985.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1985.109 and 1985.110, 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.  1985.113  Judicial enforcement.

    Whenever any person has failed to comply with a final order, 
including one approving a settlement agreement, issued under CFPA, the 
Secretary may file a civil action seeking enforcement of the order in 
the United States district court for the district in which the 
violation was found to have occurred or in the United States district 
court for the District of Columbia. Whenever any person has failed to 
comply with a preliminary order of reinstatement, or a final order, 
including one approving a settlement agreement, issued under CFPA, the 
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.  1985.114  District court jurisdiction of retaliation complaints.

    (a) The complainant may bring an action at law or equity for de 
novo review in the appropriate district court of the United States, 
which will have jurisdiction over such an action without regard to the 
amount in controversy, either:
    (1) Within 90 days after receiving a written determination under 
Sec.  1985.105(a) provided that there has been no final decision of the 
Secretary; or
    (2) If there has been no final decision of the Secretary within 210 
days of the filing of the complaint.
    (b) At the request of either party, the action shall be tried by 
the court with a jury.
    (c) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1985.109. The court shall have jurisdiction to grant all relief 
necessary to make the employee whole, including

[[Page 14389]]

injunctive relief and compensatory damages, including:
    (1) Reinstatement with the same seniority status that the employee 
would have had, but for the discharge or discrimination;
    (2) The amount of back pay, with interest;
    (3) Compensation for any special damages sustained as a result of 
the discharge or discrimination; and
    (4) Litigation costs, expert witness fees, and reasonable attorney 
fees.
    (d) 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. 
In all cases, a copy of the complaint also must be served on the OSHA 
official who issued the findings and/or preliminary order, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.


Sec.  1985.115  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 CFPA 
requires.

[FR Doc. 2016-05415 Filed 3-16-16; 8:45 am]
 BILLING CODE 4510-26-P