Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act, 70607-70626 [2016-24559]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 81, Number 198 (Thursday, October 13, 2016)]
[Rules and Regulations]
[Pages 70607-70626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24559]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1984

[Docket Number: OSHA-2011-0193]
RIN 1218-AC79


Procedures for the Handling of Retaliation Complaints Under 
Section 1558 of the Affordable Care Act

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document provides the final text of regulations governing 
employee protection (retaliation or whistleblower) claims under section 
1558 of the Affordable Care Act, which added section 18C to the Fair 
Labor Standards Act to provide protections to employees who may have 
been subject to retaliation for seeking assistance under certain 
affordability assistance provisions (for example, health insurance 
premium tax credits) or for reporting potential violations of the 
Affordable Care Act's consumer protections (for example, the 
prohibition on rescissions). An interim final rule (IFR) governing 
these provisions and request for comments was published in the Federal 
Register on February 27, 2013. Thirteen comments were received; eleven 
were responsive to the IFR. This rule responds to those comments and 
establishes the final procedures and time frames for the handling of 
retaliation complaints under section 18C, including procedures and time 
frames for employee complaints to the Occupational Safety and Health 
Administration (OSHA), investigations by OSHA, appeals of OSHA 
determinations to an administrative law judge (ALJ) for a hearing de 
novo, hearings by ALJs, review of ALJ decisions by the Administrative 
Review Board (ARB) (acting on behalf of the Secretary of Labor), and 
judicial review of the Secretary of Labor's (Secretary's) final 
decision. It also sets forth the Secretary's interpretations of the 
Affordable Care Act whistleblower provision on certain matters.

DATES: This final rule is effective on October 13, 2016.

FOR FURTHER INFORMATION CONTACT: Anh-Viet Ly, Directorate of 
Whistleblower Protection Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-4624, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email: 
OSHA.DWPP@dol.gov. This is not a toll-free number.

[[Page 70608]]

    This Federal Register publication is available in alternative 
formats. The alternative formats available are: Large print, electronic 
file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille 
System), and audiotape.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Patient Protection and Affordable Care Act, Public Law 111-148, 
124 Stat. 119, was signed into law on March 23, 2010 and was amended by 
the Health Care and Education Reconciliation Act of 2010, Public Law 
111-152, 124 Stat. 1029, that was signed into law on March 30, 2010. 
The terms ``Affordable Care Act,'' or ``Act,'' or ``ACA'' are used in 
this rulemaking to refer to the final, amended version of the law.
    Section 1558 of the Affordable Care Act amended the Fair Labor 
Standards Act (FLSA) to add section 18C, 29 U.S.C. 218C (section 18C), 
which provides protection to employees against retaliation by an 
employer for engaging in certain protected activities.
    Under section 18C, an employer may not retaliate against an 
employee for receiving a credit under section 36B of the Internal 
Revenue Code of 1986 (Code) or cost-sharing reductions (referred to as 
a ``subsidy'' in section 18C) under the Affordable Care Act. In 
general, section 36B of the Code allows certain individuals to receive 
the premium tax credit for coverage under a qualified health plan 
through an Exchange if they are not eligible for health coverage (other 
than in the individual market) including an offer from their employer 
of affordable coverage that provides minimum value and if their 
household income is between 100% and 400% of the federal poverty line. 
In addition, individuals eligible for the premium tax credit may also 
qualify for cost-sharing reductions if certain other qualifications are 
met.
    Individuals may qualify for advance payment of the premium tax 
credit (APTC), which is payment during the year to an individual's 
insurance provider that pays for part or all of the premiums for a 
qualified health plan through the Exchange covering the individual and 
his or her family. Eligibility for APTC is based on the Exchange's 
estimate of the premium tax credit to which the individual will be 
entitled on his or her tax return. Filing of an individual's federal 
income tax return is the process through which an individual claims the 
premium tax credit, and if APTC was paid for the individual or a member 
of his or her family, it is also the process through which the 
individual must reconcile the APTC with the premium tax credit.
    Since 2015, under section 4980H of the Code, certain employers 
(referred to as applicable large employers) must either offer health 
coverage that is affordable and that provides minimum value to their 
full-time employees (and offer coverage to their dependents), or be 
subject to an assessable payment (referred to as an ``employer shared 
responsibility payment'') payable to the IRS if any full-time employee 
receives the premium tax credit for coverage through an Exchange. Thus, 
the relationship between the employee's receipt of the premium tax 
credit and the potential employer shared responsibility payment imposed 
on an applicable large employer could create an incentive for an 
employer to retaliate against an employee. Section 18C protects 
employees against such retaliation.
    Section 18C also protects employees against retaliation because 
they provided or are about to provide to their employer, the federal 
government or the attorney general of a state, information relating to 
any violation of, or any act or omission the employee reasonably 
believes to be a violation of, any provision of or amendment made by 
title I of the Affordable Care Act; testified or are about to testify 
in a proceeding concerning such violation; assisted or participated, or 
are about to assist or participate, in such a proceeding; or objected 
to, or refused to participate in, any activity, policy, practice, or 
assigned task that the employee reasonably believed to be in violation 
of any provision of title I of the Act (or amendment), or any order, 
rule, regulation, standard, or ban under title I of the Act (or 
amendment). Among other provisions, title I of the Affordable Care Act 
includes a range of health insurance market reforms such as: The 
prohibition on lifetime and annual dollar limits on essential health 
benefits, the requirement for non-grandfathered plans to cover certain 
recommended preventive services with no cost sharing, and a prohibition 
on pre-existing condition exclusions.
    This final rule revises the procedures for the handling of 
whistleblower complaints under section 18C of the FLSA and sets forth 
the Secretary's interpretations of the ACA whistleblower provision on 
certain matters. To the extent possible within the bounds of applicable 
statutory language, these revised rules are designed to be consistent 
with the procedures applied to claims under other whistleblower 
statutes administered by OSHA. Responsibility for receiving and 
investigating complaints under section 18C has been delegated to the 
Assistant Secretary for Occupational Safety and Health (Assistant 
Secretary). Secretary of Labor's Order 1-2012 (Jan. 18, 2012), 77 FR 
3912 (Jan. 25, 2012). Hearings on determinations by the Assistant 
Secretary are conducted by the Office of Administrative Law Judges, and 
appeals from decisions by ALJs are decided by the ARB. Secretary of 
Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

II. Summary of Statutory Procedures

    Section 18C(b)(1) adopts the procedures, notifications, burdens of 
proof, remedies, and statutes of limitation in the Consumer Product 
Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Accordingly, 
a covered employee (complainant) may file a complaint with the 
Secretary of Labor (Secretary) within 180 days of the alleged 
retaliation. Upon receipt of the complaint, the Secretary must provide 
written notice to the person or persons named in the complaint alleged 
to have violated section 18C (respondent) of the filing of the 
complaint, the allegations contained in the complaint, the substance of 
the evidence supporting the complaint, and the rights afforded the 
respondent throughout the investigation. The Secretary must then, 
within 60 days of receipt of the complaint, afford the complainant and 
respondent an opportunity to submit a response and meet with the 
investigator to present statements from witnesses, and conduct an 
investigation.
    Section 18C, through the incorporation of CPSIA, provides that the 
Secretary may conduct an investigation only if the complainant has made 
a prima facie showing that protected activity was a contributing factor 
in the adverse action alleged in the complaint and the respondent has 
not demonstrated, through clear and convincing evidence, that the 
employer would have taken the same adverse action in the absence of 
that activity. (See Sec.  1984.104 for a summary of the investigative 
process). OSHA interprets the prima facie case requirement as allowing 
the complainant to meet this burden through the complaint as 
supplemented by interviews of the complainant.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
that there is reasonable cause to believe that retaliation has 
occurred, the Secretary must notify the respondent of that finding, 
along with a preliminary order that requires the respondent to, where 
appropriate: Take

[[Page 70609]]

affirmative action to abate the violation; reinstate the complainant to 
his or her former position together with the compensation of that 
position (including back pay) and restore the terms, conditions, and 
privileges associated with his or her employment; and provide 
compensatory damages to the complainant, as well as all costs and 
expenses (including attorney fees and expert witness fees) reasonably 
incurred by the complainant for, or in connection with, the bringing of 
the complaint upon which the order was issued.
    The complainant and the respondent then have 30 days after the date 
of the Secretary's notification in which to file objections to the 
findings and/or preliminary order and request a hearing before an ALJ. 
The filing of objections under section 18C of the FLSA will stay any 
remedy in the preliminary order except for preliminary reinstatement. 
If a hearing before an ALJ is not requested within 30 days, the 
preliminary order becomes final and is not subject to judicial review.
    If a hearing before an ALJ is held, the statute requires the 
hearing to be conducted ``expeditiously.'' The Secretary then has 120 
days after the conclusion of any hearing in which to issue a final 
order, which may provide appropriate relief, or deny the complaint. 
Until the Secretary's final order is issued, the Secretary, the 
complainant, and the respondent may enter into a settlement agreement 
that terminates the proceeding. Where the Secretary has determined that 
a violation has occurred, the Secretary will order the respondent to, 
where appropriate: Take affirmative action to abate the violation; 
reinstate the complainant to his or her former position together with 
the compensation of that position (including back pay) and restore the 
terms, conditions, and privileges associated with his or her 
employment; and provide compensatory damages to the complainant, as 
well as all costs and expenses (including attorney fees and expert 
witness fees) reasonably incurred by the complainant for, or in 
connection with, the bringing of the complaint upon which the order was 
issued.
    Within 60 days of the issuance of the final order, any person 
adversely affected or aggrieved by the Secretary's final order may file 
an appeal with the United States Court of Appeals for the circuit in 
which the violation occurred or the circuit where the complainant 
resided on the date of the violation.
    Section 18C permits the employee to seek de novo review of the 
complaint by a United States District Court in the event that the 
Secretary has not issued a final decision within 210 days after the 
filing of the complaint, or within 90 days after receiving a written 
determination. The court will have jurisdiction over the action without 
regard to the amount in controversy, and the case will be tried before 
a jury at the request of either party.
    Finally, section 18C(b)(2) of the FLSA provides that nothing in 
section 18C shall be deemed to diminish the rights, privileges, or 
remedies of any employee under any federal or state law or under any 
collective bargaining agreement, and the rights and remedies in section 
18C may not be waived by any agreement, policy, form, or condition of 
employment.

III. Summary and Discussion of Regulatory Provisions

    On February 27, 2013, OSHA published in the Federal Register an IFR 
promulgating rules governing the employee protection provisions of 
section 1558 of the Affordable Care Act, which added section 18C of the 
FLSA. 78 FR 13222. OSHA included a request for public comment on the 
interim final rule by April 29, 2013.
    Seven organizations and four individuals filed responsive comments 
with OSHA within the public comment period. OSHA received comments from 
Tate and Renner (Renner); the Blue Cross Blue Shield Association 
(BCBS); the American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO); America's Health Insurance Plans (AHIP); the 
Service Employees International Union (SEIU); the National Federation 
of Independent Business (NFIB); the United States Chamber of Commerce 
(Chamber); Thomas O'Grady; DeAnna Beckner; J.I.M. Choate; and N. 
Menold.
    OSHA has reviewed and considered the comments and now adopts this 
final rule with minor revisions. The following discussion addresses the 
comments, OSHA's responses, and any other changes to the provisions of 
the rule. The provisions in the IFR are adopted and continued in this 
final rule, unless otherwise noted below.

General Comments

Comments Related to Section 2706(b) of the Public Health Service Act
    As OSHA explained in the preamble to the IFR (78 FR 13223), section 
18C became effective on the date the health care law was enacted, March 
23, 2010. The Affordable Care Act also added section 2706(b) to the 
Public Health Service Act (PHSA), 42 U.S.C. 300gg et seq., as amended 
by section 1201 of the Affordable Care Act, and section 2706 of the 
PHSA first became effective for plan years beginning on or after 
January 1, 2014. The Affordable Care Act added Code section 9815(a) and 
Employee Retirement Income Security Act (ERISA) section 715(a) to 
incorporate the provisions of part A of title XXVII of the PHS Act 
(which includes PHSA section 2706) into the Code and ERISA. 
Accordingly, PHSA section 2706 is subject to shared interpretive 
jurisdiction by the Departments of Health and Human Services (HHS), the 
Treasury (Treasury), and Labor (DOL). Section 2706 of the PHSA is 
titled ``Non-Discrimination in Health Care'' and provides, in relevant 
part: ``(b) INDIVIDUALS.--The provisions of section 1558 of the Patient 
Protection and Affordable Care Act (relating to non-discrimination) 
shall apply with respect to a group health plan or health insurance 
issuer offering group or individual health insurance coverage.''
    Four commenters (BCBS, AHIP, the Chamber, and AFL-CIO) commented on 
the discussion in the IFR of the relationship between section 18C and 
section 2706(b) of the PHSA. OSHA has reviewed these comments and 
referred them to HHS, Treasury and the DOL's Employee Benefits Security 
Administration, which share interpretive jurisdiction over section 
2706. The IFR included a discussion on PHSA section 2706(b) in the 
preamble to the rule solely to put the public on notice that section 
PHSA section 2706(b) includes a reference to section 1558 of the 
Affordable Care Act. However, the IFR did not include any regulatory 
provisions aimed at implementing PHSA section 2706(b), nor do these 
final regulations. Accordingly, interpretive guidance regarding PHSA 
section 2706(b) is outside to the scope of these regulations.
Comments Regarding OSHA's Compliance With Notice and Comment Rulemaking 
Procedures
    NFIB commented that OSHA should re-issue the rule as a Notice of 
Proposed Rulemaking (NPRM), complete with an initial regulatory 
flexibility analysis and that OSHA should also examine whether a Small 
Business Advocacy Review panel is necessary. The Chamber likewise 
commented that OSHA has not sufficiently demonstrated that this 
rulemaking is interpretative and procedural and should have provided an 
economic analysis under Executive Orders 12866 and 13563, and an 
initial regulatory flexibility analysis under the Regulatory 
Flexibility Act (RFA). OSHA disagrees, and as explained below, OSHA 
continues to believe that this rule is procedural and

[[Page 70610]]

interpretative, and that it has complied with the applicable 
requirements for promulgating this rule.

Other General Comments

    OSHA received additional general comments from several commenters. 
Menold expressed general support for the IFR. Choate commented that the 
final rule should use the word ``judge'' instead of ``ALJ'' when 
referring to administrative law judges. After consideration, the use of 
the abbreviation ``ALJ'' has been retained in the final rule as 
consistent with agency practice.
    NFIB expressed general concern that section 18C would lead to an 
increase in whistleblower complaints that would impair small businesses 
and expressed the hope that OSHA would work to ensure that its 
procedures allow an opportunity at the outset for the small business 
and the employee to resolve a complaint without having to go through a 
formal investigation and adjudication.
    Beckner supported the ``implementation of `economic reinstatement' 
or `front pay' instead of preliminary reinstatement in situations 
w[h]ere the employer and employee relationship has deteriorated beyond 
repair'' and the definition of employee to include former employees and 
applicants.
    She also commented that the period of time that must transpire 
prior to a complainant filing for de novo review in district court is 
too long, as did O'Grady who suggested that the alternative procedural 
time periods that precede an employee's right to file a complaint to 
federal district court should be streamlined in the interest of the 
complainant who may be in a ``precarious situation'' during those 
times. He also commented that if the process cannot be streamlined, 
then once OSHA makes an initial determination that there is a valid 
complaint the employee should receive an injunction barring further 
retaliation.
    SEIU and the AFL-CIO commented that the rules should include 
specific provisions requiring employers to post notices regarding 
whistleblower rights under section 18C.
    Finally, Renner noted that section 1558 of the ACA, like other 
whistleblower laws, is a remedial law and should be construed and 
applied to further its remedial purposes. Renner also noted there may 
be some overlap between the protections provided in ERISA section 510 
and FLSA section 18C and asked that the Department's comments on the 
final rule address this issue.
    OSHA has not made any changes to the rule in response to these 
comments. The 90-day and 210-day time periods for filing a complaint in 
district court are established in the statute, and OSHA cannot change 
them by regulation. 15 U.S.C. 2087(b)(4). With regard to O'Grady's 
proposal for injunctive relief, OSHA notes that the statute already 
provides for the type of relief requested. If it finds reasonable cause 
to believe that retaliation occurred, the statute requires OSHA to 
issue findings and an order containing relief including, where 
appropriate, reinstatement. 15 U.S.C. 2087(b)(2). Under the statute, 
OSHA's order of reinstatement is not stayed by the employer's request 
for a hearing. Id. In addition, OSHA notes that it is unlawful for an 
employer to engage in further retaliation against employees who pursue 
whistleblower complaints under the ACA. See Benjamin v. Citationshares 
Mgmt., ARB No. 12-029, 2013 WL 6385831, at *6 (ARB Nov. 5, 2013) 
(noting ``an employee engages in protected activity if he attempts to 
provide information of retaliation that violates [a whistleblower 
statute]'' and holding that employee's recording of information in 
support of his retaliation claim was protected); Diaz-Robianas v. Fla. 
Power & Light Co., DOL No. 92-ERA-10, 1996 WL 171408, at *5 (Off. 
Admin. App. Jan. 19, 1996) (noting under prior version of Energy 
Reorganization Act that the statute ``requires employers to refrain 
from unlawfully motivated employment discrimination, and a complaint 
that an employer has violated this requirement is protected''); 
McClendon v. Hewlett Packard, Inc., 2006-SOX-00029, 2006 WL 6577175 at 
*76 (ALJ Oct. 5, 2006) (holding that filing a Sarbanes-Oxley Act 
whistleblower complaint is in itself a protected activity); cf. Young 
v. CSX Transp., Inc., 42 F. Supp. 3d 388, 2014 WL 4367461, at *5 
(N.D.NY. Sept. 4, 2014) (acknowledging employer's concession that 
filing a retaliation claim with OSHA is protected under the Federal 
Railroad Safety Act). If an employee believes an employer is 
retaliating against him for pursuing an ACA whistleblower complaint, 
the employee should contact OSHA.
    With regard to NFIB's comments regarding the impact on small 
employers and the opportunities available for early resolution of 
whistleblower complaints, OSHA agrees that resolution of whistleblower 
complaints as early in the investigation process as possible is often 
the best outcome for both parties. Accordingly, OSHA's Whistleblower 
Investigations Manual encourages whistleblower investigators to 
actively assist parties in reaching an agreement, where possible. See 
OSHA Whistleblower Investigations Manual, at 6-12 (Jan. 28, 2016), 
available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-007.pdf. Additionally, in August 2015, OSHA issued a directive allowing 
its regional offices to implement Early Resolution Programs in which, 
at the parties' request, OSHA would make a neutral ADR coordinator, 
unconnected with the investigation, available to assist the parties in 
achieving an early resolution to the whistleblower case either upon the 
filing of the whistleblower complaint or at any time up to the 
completion of OSHA's investigation. Alternative Dispute Resolution 
(ADR) Processes for Whistleblower Protection Program (Aug. 18, 2015), 
available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-006.pdf.
    With respect to SEIU and AFL-CIO's comment that OSHA should require 
employers to post notices regarding section 18C's protections, OSHA is 
not adding such a requirement to these rules. However, OSHA notes that 
posting of a notice regarding whistleblower rights is one of the common 
non-monetary remedies that OSHA orders in meritorious whistleblower 
cases. OSHA believes that such notices can play a significant role in 
ameliorating the chilling effect that retaliation has on employees who 
might otherwise report violations of the law. Additionally, OSHA has 
worked with other agencies that implement the Affordable Care Act to 
ensure that information about the whistleblower provision is included 
in notices and public information that those agencies provide to 
employees and employers.
    Finally, OSHA generally agrees with Renner's observation that 
section 1558 of the ACA, like other whistleblower laws, is a remedial 
law and should be construed and applied to further its remedial 
purposes. With regard to Renner's comment regarding the potential 
overlap between ERISA section 510 and FLSA section 18C, OSHA notes that 
Renner is correct that some complainants may have claims under both 
ERISA section 510 and FLSA section 18C. Section 18C's whistleblower 
protections do not replace any protections that a whistleblower may 
have under ERISA section 510. Whistleblowers may bring claims under 
either or both statutes if their whistleblowing is protected under 
both. However, in order to pursue a claim under section 18C either in 
district court or before the Department of Labor (DOL), the complainant 
must

[[Page 70611]]

file a complaint with OSHA within 180 days of the alleged adverse 
action. See 29 CFR 1984.103(d).

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

Section 1984.100 Purpose and Scope
    This section describes the purpose and scope of the regulations 
implementing FLSA section 18C and provides an overview of the 
procedures covered by these regulations. OSHA has added a statement in 
subparagraph (b) noting that these rules set forth the Secretary's 
interpretations of section 18C on certain statutory issues. AFL-CIO 
commented that OSHA should add a discussion of PHSA section 2706(b) to 
this section. However for the reasons previously explained, OSHA 
declines to add such a discussion.
Section 1984.101 Definitions
    This section includes general definitions applicable to FLSA 
section 18C. The definitions of the terms ``employer,'' ``employee,'' 
and ``person'' from section 3 of the FLSA, 29 U.S.C. 203, apply to 
these rules and are included here.
    Consistent with the Secretary's interpretation of the term 
``employee'' in the other whistleblower statutes administered by OSHA 
\1\ and with the Secretary's interpretation of the term ``employee'' 
under the anti-retaliation provision found at section 15(a)(3) of the 
FLSA, 29 U.S.C. 215(a)(3),\2\ the definition of the term ``employee'' 
in section 1984.101 also includes former employees and applicants for 
employment. This interpretation is supported by section 18C's plain 
language which prohibits retaliation against ``any employee'' and 
provides that ``[a]n employee who believes that he or she has been 
discharged or otherwise discriminated against by any employer in 
violation of this section'' may file a complaint with the Secretary of 
Labor, (emphasis added). Section 18C's broad protection of ``any 
employee'' from retaliation and provision of a cause of action against 
``any employer'' for retaliation makes clear that the parties need not 
have a current employment relationship. Section 18C's broad 
protections, like the protections in section 15(a)(3), contrast with 
the narrower protections of sections 6 and 7 of the FLSA. Sections 6 
and 7 provide respectively that an employer must pay at least the 
minimum wage to ``each of his employees'' and must pay overtime to 
``any of his employees,'' and thus require a current employment 
relationship. See 29 U.S.C. 206(a) and (b), 29 U.S.C. 207(a)(1) and 
(2). Congress chose to use the broad term ``any'' to modify employee 
and employer in sections 18C(a) and (b), rather than providing more 
restrictively that, for example, ``no employer shall discharge or in 
any manner discriminate against any of his employees'' or ``an employee 
who believes that he or she has been discharged or otherwise 
discriminated against by his employer'' may file a complaint with the 
Secretary of Labor. The Supreme Court has made clear that ``any'' has 
an expansive meaning that does not limit the word it modifies. See, 
e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 
1325, 1332 (2011) (noting that the use of ``any'' in the phrase ``filed 
any complaint'' in section 15(a)(3) of the FLSA ``suggests a broad 
interpretation that would include an oral complaint''); U.S. v. 
Gonzales, 520 U.S. 1, 5 (1997) (``any'' has an expansive meaning, that 
is, ``one or some indiscriminately of whatever kind'') (internal 
citations omitted). In addition, the explicit inclusion of 
reinstatement and preliminary reinstatement (both of which can only be 
awarded to former employees) among the remedies available for 
whistleblowers under section 18C, which incorporates 15 U.S.C. 2087(b), 
confirms that the complainant and the respondent need not have a 
current employment relationship in order for the complainant to have a 
claim under section 18C. See Dellinger v. Science Applications Int'l 
Corp., 649 F.3d at 230 n.2 (section 15(a)(3) of the FLSA protects 
former employees); cf. Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 
(term ``employees'' in anti-retaliation provision of Title VII of the 
Civil Rights Act of 1964 includes former employees).
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    \1\ See, e.g., 29 CFR 1980.101(g) (defining employee to include 
former employees and applicants under the whistleblower provisions 
in the Sarbanes-Oxley Act); 29 CFR 1978.101 (Surface Transportation 
Assistance Act); 29 CFR 1981.101 (Pipeline Safety Improvement Act); 
29 CFR 1982.101(d) (Federal Railroad Safety Act and the National 
Transit Systems Security Act); 29 CFR 1983.101(h) (Consumer Product 
Safety Improvement Act).
    \2\ See Brief for the Secretary of Labor and the Equal 
Employment Opportunity Commission as Amicus Curiae, Dellinger v. 
Science Applications Int'l Corp., No. 10-1499 (4th Cir. Oct. 15, 
2010) (explaining that the phrase ``any employee'' in section 
15(a)(3) of the FLSA does not limit an individual's retaliation 
claims to her current employer, but rather extends protection to 
prospective employees from retaliation for engaging in protected 
activity), and Brief of the Secretary of Labor and Equal Employment 
Opportunity Commission as Amicus Curiae, Dellinger v. Science 
Applications Int'l Corp., No. 10-1499 (4th Cir. Sept. 9, 2011) 
(same); but see Dellinger v. Science Applications Int'l Corp., 649 
F.3d 226, 229-31 & n.2 (4th Cir. 2011) (accepting that former 
employees are protected from retaliation under section 15(a)(3) of 
the FLSA but holding that applicants for employment are not).
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    No comments were made on this section, other than those discussed 
in the general comments suggesting additional definitions. OSHA made a 
minor clarification to the definition of ``respondent'' and added 
definitions of Exchange and advance payments of the premium tax credit 
or APTC but has made no other substantive changes to this section.
Section 1984.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under 
section 18C of the FLSA, and the conduct that is prohibited in response 
to any protected activities. Section 18C(a)(1) protects any employee 
from retaliation because the employee has ``received a credit under 
section 36B of the Internal Revenue Code of 1986 or a subsidy under 
section 1402 of this Act.'' The reference to ``a subsidy under section 
1402 of this Act'' in section 18C(a)(1) refers to receipt of a cost-
sharing reduction under the Affordable Care Act.
    Under section 18C(a)(2), an employer may not retaliate against an 
employee because the employee ``provided, caused to be provided, or is 
about to provide or cause to be provided to the employer, the federal 
government, or the attorney general of a state information relating to 
any violation of, or any act or omission the employee reasonably 
believes to be a violation of, any provision of this title (or an 
amendment made by this title).'' Section 18C also protects employees 
who testify, assist or participate in proceedings concerning such 
violations or are about to do so. Sections 18C(a)(3) and (4), 29 U.S.C. 
218C(a)(3) and (4). Finally, section 18C(a)(5) prohibits retaliation 
because an employee ``objected to, or refused to participate in, any 
activity, policy, practice, or assigned task that the employee (or 
other such person) reasonably believed to be in violation of any 
provision of this title (or amendment), or any order, rule, regulation, 
standard, or ban under this title (or amendment).'' References to 
``this title'' in section 18C(a)(2) and (5) refer to title I of the 
Affordable Care Act.
    In order to have a ``reasonable belief'' under sections 18C(a)(2) 
and (5) of the FLSA, a complainant must have both a subjective, good 
faith belief and an objectively reasonable belief that the complained-
of conduct violates one of the enumerated categories of law. See 
Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132 (10th 
Cir. 2013) (discussing the reasonable belief standard under analogous

[[Page 70612]]

language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C. 
1514A); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013) (same); 
Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *12 
(ARB May 25, 2011) (same). The requirement that the complainant have a 
subjective, good faith belief is satisfied so long as the complainant 
actually believed that the conduct complained of violated the relevant 
law. See Sylvester, 2011 WL 2165854, at *12 (citing Harp v. Charter 
Commc'ns, 558 F.3d 722, 723 (7th Cir. 2009)); Day v. Staples, Inc., 555 
F.3d 42, 54 n.10 (1st Cir. 2009) (quoting Welch v. Chao, 536 F.3d 269, 
277 n.4 (4th Cir. 2008) (``Subjective reasonableness requires that the 
employee `actually believed the conduct complained of constituted a 
violation of pertinent law.'''). The objective reasonableness of a 
complainant's belief ``is evaluated based on the knowledge available to 
a reasonable person in the same factual circumstances with the same 
training and experience as the aggrieved employee.'' Rhinehimer v. U.S. 
Bancorp Investments, Inc., 787 F.3d 797, 811 (6th Cir. 2015) (internal 
citations and quotations omitted); Sylvester, 2011 WL 2165854, at *12. 
However, the complainant need not show that the conduct complained of 
constituted an actual violation of law. Pursuant to this standard, an 
employee's whistleblower activity is protected when it is based on a 
reasonable, but mistaken, belief that a violation of the relevant law 
has occurred or is likely to occur. See Sylvester, 2011 WL 2165854, at 
*13 (citing Welch, 536 F.3d at 277); Allen v. Admin. Review Bd., 514 
F.3d 468, 476-77 (5th Cir. 2008); Melendez v. Exxon Chemicals Americas, 
ARB No. 96-051, slip op. at 21 (ARB July 14, 2000) (``It is also well 
established that the protection afforded whistleblowers who raise 
concerns regarding statutory violations is contingent on meeting the 
aforementioned `reasonable belief' standard rather than proving that 
actual violations have occurred.'').
    OSHA received several comments on this section of the interim final 
rule. For the reasons discussed below, the only change OSHA has made to 
this section is to revise the section to clarify that, under section 
18C(a)(1), an employee has ``received'' a premium tax credit or cost-
sharing reduction not only when a premium tax credit is allowed on the 
individual's tax return but also when an Exchange finds the employee 
eligible for APTC or for a cost-sharing reduction. At that point, the 
employee may apply financial assistance to reduce his or her share of 
the premium cost for coverage purchased through the Exchange, and the 
prices that the Exchange provides to the employee for plans take into 
account the employee's eligibility for such assistance. AFL-CIO and 
SEIU commented that OSHA should clarify that FLSA section 18C(a)(1) 
protects those who take the preliminary steps, such as gathering 
information, that are needed to apply for health insurance coverage on 
an Exchange and to apply for APTC. These commenters were particularly 
concerned about protecting employees who ask their employers about the 
health care coverage offered by their employers. These commenters noted 
that to apply for APTC for health insurance on an Exchange, individuals 
must provide certain information about their available employer-
sponsored insurance options, if any. HHS has developed a form for 
employees to use in gathering information about any available employer-
sponsored insurance options and this form instructs employees to get 
the information that they need from their employer. As SEIU explained 
``[a]s currently proposed, the system puts the burden on individuals to 
seek coverage information from their employer . . . in order to 
complete the exchange application. Because of this, it is imperative 
that the protection against retaliation extend to any preliminary 
actions taken to receive the tax credit.''
    OSHA agrees that these commenters raise compelling concerns 
regarding the potential for retaliation against employees who seek 
information from their employer that they need to receive APTC when 
they purchase health insurance through an Exchange. OSHA declines to 
change the text of the rule, which generally mirrors the statutory 
language, in response to these comments. However, OSHA believes that, 
in certain circumstances, the existing case law under the other 
whistleblower protection statutes that OSHA administers supports 
protection for employees who seek information from their employer 
regarding employer-sponsored health coverage in order to receive APTC 
for health coverage through an Exchange.
    When an employer believes that an employee has received a premium 
tax credit or cost-sharing reduction and takes action based on that 
belief, the employer's retaliatory motive is the same whether it arises 
from an employee's inquiry regarding employer-provided coverage in 
anticipation of applying for APTC or a cost-sharing reduction through 
the Exchange, or whether it arises once the applicable Exchange 
notifies the employer that the employee has qualified for a APTC or a 
cost-sharing reduction through the Exchange. OSHA's regulations under 
section 18C and case law under other anti-retaliation statutes make 
clear that an employer may not retaliate against an employee when the 
employer knows or suspects that the employee has engaged in activity 
protected by the statute. See 29 CFR 1984.104(e); see also Reich v. Hoy 
Shoe, Inc., 32 F.3d 361, 368 (8th Cir. 1994) (noting under section 
11(c) of the Occupational Safety and Health Act (11(c)) that ``[i] t 
seems clear to this Court that an employer that retaliates against an 
employee because of the employer's suspicion or belief that the 
employee filed an OSHA complaint has as surely committed a violation of 
Sec.  11(c) as an employer that fires an employee because the employer 
knows that the employee filed an OSHA complaint''); Saffels v. Rice, 40 
F.3d 1546, 1549 (8th Cir. 1994) (retaliation is unlawful under the FLSA 
if based on an employer's mistaken belief that employees engaged in 
FLSA-protected activity); Brock v. Richardson, 812 F.2d 121, 124-25 (3d 
Cir. 1987) (same).
    Similarly, an employer retaliates against an employee when the 
employer threatens to take action if the employee engages in activity 
protected under section 18C. See 29 CFR 1984.102(a) (defining 
retaliation to include threats and intimidation). Indeed, courts have 
long recognized that acts taken in anticipation of an employee's 
protected activity to dissuade such activity can be actionable under 
the anti-retaliation provisions of many statutes. See, e.g., Sauers v. 
Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993) (noting under 
Title VII's anti-retaliation provision that ``[a]ction taken against an 
individual in anticipation of that person engaging in protected 
opposition to discrimination is no less retaliatory than action taken 
after the fact''); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 411 (9th 
Cir. 1993) (noting that anticipatory employer action that ``discourages 
the whistle blower before the whistle is blown'' would violate ERISA 
anti-retaliation statute, even though the employee has not yet filed 
any formal complaint); Perez v. Fatima/Zahra, Inc., No. 14-2337, 2014 
WL 2154092 (N.D. Cal. May 22, 2014) (issuing temporary restraining 
order against employer who threatened employees that they would be 
fired for talking to investigators); Solis v. SCA Restaurant Corp., 938 
F. Supp. 2d 380, 389 (E.D.N.Y. 2013) (finding retaliation where 
employer threatened employees with termination in anticipation of their 
testimony for Secretary of Labor).
    Thus, OSHA believes that an employee's inquiry to his or her 
employer to gather the information necessary to apply for APTC for

[[Page 70613]]

coverage on the Exchange may trigger protection under section 18C if 
the employee can show that either the employer's belief that the 
employee had received a premium tax credit, or the employer's desire to 
deter the employee from taking any further action that would result in 
the employee's receiving a premium tax credit, contributed to the 
employer's action against the employee.
    Renner commented that the regulations should clarify that an 
employer's decision to reduce an employee's hours of work to evade 
application of the Affordable Care Act is unlawful under FLSA section 
18C noting that ``the reduction of hours directly reduces the 
employee's wages and is materially adverse.''
    As explained earlier in this preamble, under section 4980H of the 
Code, applicable large employers must either offer health coverage that 
is affordable and that provides minimum value to their full-time 
employees (and offer coverage to their dependents), or be subject to 
assessment of an employer shared responsibility payment by the IRS if 
at least one full-time employee receives the premium tax credit. In 
general, for purposes of section 4980H of the Code, a full-time 
employee is an employee with an average of at least 30 hours of service 
per week. To the extent that Renner's comment implies that the 
whistleblower protections apply if an employer reduces an employee's 
hours of service to avoid or reduce liability under section 4980H of 
the Code, OSHA disagrees because section 4980H of the Code does not 
prohibit an employer from reducing an employee's hours of service in 
order to avoid a potential employer shared responsibility payment.
    However, to the extent that Renner is commenting that reducing work 
hours in retaliation for activity protected under section 18C is 
unlawful, OSHA agrees. For instance, if an employer reduces the hours 
of an employee that the employer knows or suspects of receiving a 
premium tax credit or subsidy, the employer's actions may violate 
section 18C if the employee's receipt of the premium tax credit or 
subsidy was a contributing factor in the employer's decision to reduce 
the hours, and the employer is unable to show by clear and convincing 
evidence that it would have taken the same action in the absence of 
that protected activity. See 29 CFR 1984.104(e) (explaining the burdens 
of proof in Affordable Care Act whistleblower cases); see also 29 
U.S.C. 218C(b)(1) (incorporating the burdens of proof in 15 U.S.C. 
2087(b)(2)(B)). In addition, OSHA notes that an employer violates 
section 18C if it threatens employees with reductions in hours in order 
to dissuade them from applying for APTC for health insurance on an 
Exchange. See, e.g., Sauers, 1 F.3d at 1128. OSHA declines to change 
the rule in response to Renner's comment because OSHA believes that 
this issue is adequately addressed in the case law under analogous 
anti-retaliation provisions and the rule has been drafted to be 
consistent with OSHA's rules under other whistleblower-protection 
statutes.
    The Chamber commented that OSHA should limit the definition of 
intimidation as a form of retaliation asserting that the term 
``intimidation'' left undefined is overly broad and that ``[t]he 
conduct that is considered intimidating should not be actionable unless 
it results in a tangible adverse employment action, such as demotion, 
negative performance review, failure to promote, assignment of 
undesirable job duties, a pattern of harassment, and termination.
    The Chamber further commented that equitable treatment of the 
different parties requires OSHA to apply a reasonable belief standard 
to respondents as well as to complainants. BCBS raised similar concerns 
regarding the IFR, commenting that OSHA should apply the final rule 
keeping in mind the unique challenges of implementing the Affordable 
Care Act, which may make it difficult to determine whether an 
employer's or issuer's actions are justified by the Affordable Care Act 
guidance in effect at the time.
    After consideration, OSHA declines to amend the rule in response to 
the Chamber and BCBS's comments. With regard to the Chamber's 
suggestion that OSHA adopt a reasonable belief requirement for 
respondents as well as complainants and BCBS's comment that an employer 
or issuer's actions may be justified based on the Affordable Care Act 
guidance in effect at the time, OSHA notes that the statutory language 
includes no ``reasonable belief'' standard for employers. However, OSHA 
believes that case law under analogous statutes adequately addresses 
these concerns. For example, the fact that an employer is following the 
ACA guidance available at the time that an employee blows the whistle 
may impact whether the employee can show that he had a reasonable 
belief that the employer was violating the law. Similarly, if an 
employer takes an action against an employee based on a reasonable, but 
mistaken, belief of misconduct or another circumstance unrelated to 
protected activity, the employee's subsequent whistleblower complaint 
may fail. See Ledure v. BNSF Rwy. Co., ARB No. 13-044, 2015 WL 4071574, 
at *6 (ARB Jun. 2, 2015) (affirming ALJ's conclusion that retaliation 
did not occur where employer's refusal to allow employee to return to 
work was based on reasonable, but mistaken, belief that employee was 
not medically qualified to return to work and not on protected 
whistleblowing).
    With regard to the Chamber's comment that the rule should be 
changed to limit the definition of ``intimidation,'' OSHA believes that 
the circumstances in which intimidation constitutes an adverse action 
under section 18C are adequately addressed by case law under the 
Department's other whistleblower statutes. While intimidation may be 
linked with some other form of adverse action, intimidation that is 
more than trivial may, standing alone, qualify as adverse action. The 
phrase ``terms, conditions, or other privileges of employment'' does 
not indicate that actionable adverse action is limited to ``economic'' 
or ``tangible'' conditions of employment. See Meritor Savings Bank, FSB 
v. Vinson, 477 U.S. 57, 64 (1986) (interpreting similar language in 
Title VII of the Civil Rights Act of 1964); see also Menendez v. 
Halliburton, Inc., ARB Nos. 09-002, 09-003, 2011 WL 4439090 at *11-12 
(Sept. 13, 2011), aff'd, Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d 
254 (5th Cir. 2014) (interpreting similar language in the Sarbanes-
Oxley Act). Rather, adverse action is action that a reasonable employee 
would find ``materially adverse,'' that is, the action is more than 
trivial. Specifically, the evidence must show that the action at issue 
could well have dissuaded a reasonable worker from engaging in 
protected activity. See Burlington Northern & Santa Fe R. R. Co. v. 
White, 548, U.S. 53, 68 (2006); Halliburton, 771 F.3d at 261-62 
(affirming ARB's finding of adverse action that was not a tangible 
employment action); Williams v. American Airlines, ARB No. 09-018, 2010 
WL 5535815 at *6-8 (Dec. 29, 2010) (discussing adverse action under the 
Department's whistleblower statutes). Thus, under this case law, 
unlawful retaliation would include intimidating an employee for 
engaging in protected activity when the intimidation would dissuade a 
reasonable employee from engaging in protected activity.
Section 1984.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation

[[Page 70614]]

complaint under section 18C. To be timely, a complaint must be filed 
within 180 days of when the alleged violation occurs. Under Delaware 
State College v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation 
occurs when the retaliatory decision has been both made and 
communicated to the complainant. In other words, the limitations period 
commences once the employee is aware or reasonably should be aware of 
the employer's decision. E.E.O.C. v. United Parcel Serv., Inc., 249 
F.3d 557, 561-62 (6th Cir. 2001). However, the time for filing a 
complaint may be tolled for reasons warranted by applicable case law. 
For example, OSHA may consider the time for filing a section 18C 
complaint equitably tolled if the complainant mistakenly files a 
complaint with another agency instead of OSHA within 180 days after 
becoming aware of the alleged violation. OSHA has revised this section 
of the rule to note this example of when the time for filling a 
complaint would be equitably tolled.
    Complaints filed under section 18C of the FLSA need not be in any 
particular form. They may be either oral or in writing. When a 
complaint is made orally, OSHA will put the complaint in writing. If 
the complainant is unable to file the complaint in English, OSHA will 
accept the complaint in any language. With the consent of the employee, 
complaints may be filed by any person on the employee's behalf.
    OSHA notes that a complaint of retaliation filed with OSHA under 
the Affordable Care Act is not a formal document and need not conform 
to the pleading standards for complaints filed in federal district 
court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. 
Parexel Int'l, Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 
26, 2011) (holding whistleblower complaints filed with OSHA under 
analogous provisions in the Sarbanes-Oxley Act need not conform to 
federal court pleading standards). Rather, the complaint filed with 
OSHA under this section simply alerts OSHA to the existence of the 
alleged retaliation and the complainant's desire that OSHA investigate 
the complaint. Upon the filing of a complaint, OSHA is to determine 
whether ``the complaint, supplemented as appropriate by interviews of 
the complainant'' alleges ``the existence of facts and evidence to make 
a prima facie showing.'' 29 CFR 1984.104(e). As explained in Sec.  
1984.104(e), if the complaint, supplemented as appropriate, contains a 
prima facie showing, and the respondent does not show clear and 
convincing evidence that it would have taken the same action in the 
absence of the alleged protected activity, OSHA conducts an 
investigation to determine whether there is reasonable cause to believe 
that retaliation has occurred. See 15 U.S.C. 2087(b)(2); 29 CFR 
1984.104(e).
    No comments were received on this section of the IFR. However, in 
addition to adding the example noted above of when the time for filing 
a complaint might be tolled, OSHA changed the term ``email'' in 
paragraph (d) to ``electronic communication transmittal'' because OSHA 
has published an on-line complaint form on its Web site, https://www.whistleblowers.gov/complaint_page.html .
Section 1984.104 Investigation
    This section describes the procedures that apply to the 
investigation of complaints under section 18C. Paragraph (a) of this 
section outlines the procedures for notifying the parties and 
appropriate federal agencies of the complaint and notifying the 
respondent of its rights under these regulations. Paragraph (b) 
describes the procedures for the respondent to submit its response to 
the complaint. Paragraph (c) describes the sharing of information 
submitted to OSHA during the investigation and the opportunity that 
each party will have to provide information to OSHA. Paragraph (d) of 
this section discusses confidentiality of information provided during 
investigations. Paragraph (e) of this section sets forth the applicable 
burdens of proof. Paragraph (f) describes the procedures OSHA will 
follow prior to the issuance of findings and a preliminary order when 
OSHA has reasonable cause to believe that a violation has occurred.
    Section 18C of the FLSA incorporates the burdens of proof set forth 
in CPSIA, 15 U.S.C. 2087(b). That statute requires that a complainant 
make an initial prima facie showing that protected activity was ``a 
contributing factor'' in the adverse action alleged in the complaint, 
i.e., that the protected activity, alone or in combination with other 
factors, affected in some way the outcome of the employer's decision. 
The complainant will be considered to have met the required burden if 
the complaint on its face, supplemented as appropriate through 
interviews of the complainant, alleges the existence of facts and 
either direct or circumstantial evidence to meet the required showing. 
A complainant's burden may be satisfied, for example, if he or she 
shows that the adverse action took place shortly after the protected 
activity, or at the first opportunity available to the respondent, 
giving rise to the inference that it was a contributing factor in the 
adverse action. See, e.g., Porter v. Cal. Dep't of Corrs., 419 F.3d 
885, 895 (9th Cir. 2005) (holding that years between the protected 
activity and the retaliatory actions did not defeat a finding of a 
causal connection where the defendant did not have the opportunity to 
retaliate until he was given responsibility for making personnel 
decisions).
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the Energy Reorganization 
Act of 1974, which is the same framework now applicable to section 18C 
of the FLSA, serves a ``gatekeeping function'' that ``stem[s] frivolous 
complaints''). Even in cases where the complainant successfully makes a 
prima facie showing, the investigation must be discontinued if the 
respondent demonstrates, by clear and convincing evidence, that it 
would have taken the same adverse action in the absence of the 
protected activity. Thus, OSHA must dismiss a complaint under section 
18C of the FLSA and not investigate further if either: (1) The 
complainant fails to make the prima facie showing that protected 
activity was a contributing factor in the adverse action; or (2) the 
respondent rebuts that showing by clear and convincing evidence that it 
would have taken the same adverse action absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statute requires OSHA to determine whether there is 
reasonable cause to believe that protected activity was a contributing 
factor in the alleged adverse action. A contributing factor is ``any 
factor which, alone or in connection with other factors, tends to 
affect in any way the outcome of the decision.'' Marano v. Dep't of 
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks, 
emphasis and citation omitted) (discussing the Whistleblower Protection 
Act, 5 U.S.C. 1221(e)(1)); see, e.g., Lockheed Martin Corp., 717 F.3d 
at 1136. For protected activity to be a contributing factor in the 
adverse action, ```a complainant need not necessarily prove that the 
respondent's articulated reason was a pretext in order to prevail,''' 
because a complainant alternatively can prevail by showing that the 
respondent's ``reason, while true, is only one of the reasons for its 
conduct,'' and that another reason

[[Page 70615]]

was the complainant's protected activity. See Klopfenstein v. PCC Flow 
Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 
31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 
(5th Cir. 2004)) (discussing contributing factor test under the 
Sarbanes-Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. 
Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 
4746668 (5th Cir. 2010).
    If OSHA finds reasonable cause to believe that the alleged 
protected activity was a contributing factor in the adverse action, 
OSHA may not order relief if the employer demonstrates by ``clear and 
convincing evidence'' that it would have taken the same action in the 
absence of the protected activity. See 15 U.S.C. 2087(b)(2)(B)(ii). The 
``clear and convincing evidence'' standard is a higher burden of proof 
than a ``preponderance of the evidence'' standard. Clear and convincing 
evidence is evidence indicating that the thing to be proved is highly 
probable or reasonably certain. See, e.g., Clarke v. Navajo Express, 
Inc., ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) 
(discussing burdens of proof under analogous whistleblower provision in 
Surface Transportation Assistance Act).
    BCBS and the Chamber commented on this section. BCBS commented that 
the regulations should provide procedures for instances when the 
complaint names multiple respondents and suggests amending Sec.  
1984.104(e)(2)(ii) to read as follows: ``Each respondent knew or 
suspected . . . .'' BCBS also commented that OSHA should dismiss 
complaints against respondents who do not have the requisite knowledge 
of alleged retaliation to justify continuing the complaint process 
against them, and clarify in Sec.  1984.104(e)(3) that a showing that 
the adverse action took place shortly after the protected activity 
would not give rise to the inference that it was a contributing factor 
in the adverse action in instances when the respondent did not know or 
suspect that the complainant engaged in a protected activity.
    OSHA declines to make these changes because they are unnecessary 
and could cause confusion. The IFR already does not exclude multiple 
respondents and adding the word ``each'' to Sec.  1984.104(e)(2)(ii) 
could be construed as allowing liability only when all respondents have 
the requisite knowledge or suspicion. Additionally, the IFR already 
provides a basis for dismissing claims against respondents who lack 
requisite knowledge or suspicion, such as at Sec.  1984.104(e) where it 
provides that a ``complaint, supplemented as appropriate by interviews 
of the complainant, must allege the existence of facts and evidence to 
make a prima facie showing that protected activity was a contributing 
factor in the alleged adverse action including that ``[t]he respondent 
knew or suspected that the employee engaged in the protected activity . 
. . .''
    The Chamber commented that the IFR improperly treated respondents 
and complainants differently by allowing complainants to receive copies 
of documents submitted by the respondent, subject to privacy and 
confidentiality standards, but providing no similar entitlement for 
respondents. OSHA believes this is incorrect. The IFR and the statute 
both provide the respondent the right to receive the substance of the 
evidence supporting the complaint, and OSHA's investigation procedures, 
which ensure that each party's submissions are available to the other 
party during the investigation, are further explained in OSHA's 
Whistleblower Investigations Manual. Nonetheless, to clarify that 
respondents and complainants are afforded equal access to each other's 
submissions during the OSHA investigation, OSHA has revised paragraph 
(c) of this section to reflect its current information sharing 
practices. Also, throughout this section, minor changes were made as 
needed to clarify the remaining provisions without changing their 
meaning.
Section 1984.105 Issuance of Findings and Preliminary Orders
    This section provides that, on the basis of information obtained in 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of a complaint, written findings regarding whether or not 
there is reasonable cause to believe that the complaint has merit. If 
the findings are that there is reasonable cause to believe that the 
complaint has merit, the Assistant Secretary will order appropriate 
relief, including preliminary reinstatement, affirmative action to 
abate the violation, back pay with interest, compensatory damages, 
attorney and expert witness fees, and costs. The findings and, where 
appropriate, preliminary order, advise the parties of their right to 
file objections to the findings of the Assistant Secretary and to 
request a hearing. The findings and, where appropriate, preliminary 
order, also advise the respondent of the right to request an award of 
attorney fees not exceeding $1,000 from the ALJ, regardless of whether 
the respondent has filed objections, if the complaint was frivolous or 
brought in bad faith. If no objections are filed within 30 days of 
receipt of the findings, the findings and any preliminary order of the 
Assistant Secretary become the final decision and order of the 
Secretary. If objections are timely filed, any order of preliminary 
reinstatement will take effect, but the remaining provisions of the 
order will not take effect until administrative proceedings are 
completed.
    This section also provides that interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily. In the Secretary's 
view, 26 U.S.C. 6621 provides the appropriate rate of interest to 
ensure that victims of unlawful retaliation under section 18C of the 
FLSA are made whole. The Secretary has long applied the interest rate 
in 26 U.S.C. 6621 to calculate interest on back pay in whistleblower 
cases. See Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00-
012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 2000); see also Cefalu 
v. Roadway Express, Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB 
Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051, 
2010 WL 1776974, at *8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., 
ARB No. 00-045, 2000 WL 1920347 at *6 (ARB Dec. 29, 2000). Section 6621 
of the Code provides the appropriate measure of compensation under 
section 18C and other DOL-administered whistleblower statutes because 
it ensures the complainant will be placed in the same position he or 
she would have been in if no unlawful retaliation occurred. See Ass't 
Sec'y v. Double R. Trucking, Inc., ARB No. 99-061, 1999 WL 529752 at *4 
(ARB July 16, 1999) (interest awards pursuant to Code section 6621 are 
mandatory elements of complainant's make-whole remedy). Code section 
6621 provides a reasonably accurate prediction of market outcomes 
(which represents the loss of investment opportunity by the complainant 
and the employer's benefit from use of the withheld money) and thus 
provides the complainant with appropriate make-whole relief. See 
E.E.O.C. v. County of Erie, 751 F.2d 79, 82 (2d Cir. 1984) (``[s]ince 
the goal of a suit under the [Fair Labor Standards Act] and the Equal 
Pay Act is to make whole the victims of the unlawful underpayment of 
wages, and since [Code section 6621] has been adopted as a good 
indicator of the value of the use of money, it was well within'' the 
district court's

[[Page 70616]]

discretion to calculate prejudgment interest under Code section 6621); 
New Horizons for the Retarded, Inc., 283 NLRB No. 181, 1987 WL 89652, 
at *2 (NLRB May 28, 1987) (observing that ``the short-term Federal rate 
[used by Code section 6621] is based on average market yields on 
marketable Federal obligations and is influenced by private economic 
market forces''). Similarly, as explained in the IFR, daily compounding 
of the interest award ensures that complainants are made whole for 
unlawful retaliation in violation of section 18C. See 78 FR 13227.
    Finally, this section has been revised to note that when ordering 
back pay, OSHA also will require the respondent to submit the 
appropriate documentation to the Social Security Administration 
allocating the back pay to the appropriate period. Requiring the 
reporting of back pay allocation to the Social Security Administration 
serves the remedial purposes of section 18C by ensuring that employees 
subjected to retaliation are truly made whole. See Don Chavas, LLC d/b/
a Tortillas Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB 
Aug. 8, 2014) (holding that back pay awards under the National Labor 
Relations Act should include the allocation of back pay to the 
appropriate calendar quarters). As the NLRB has explained, when back 
pay is not properly allocated to the years covered by the award, a 
complainant may be disadvantaged in several ways. First, improper 
allocation may interfere with a complainant's ability to qualify for 
any old-age Social Security benefit. Id. at *4 (``Unless a 
[complainant's] multiyear back pay award is allocated to the 
appropriate years, she will not receive appropriate credit for the 
entire period covered by the award, and could therefore fail to qualify 
for any old-age social security benefit''). Second, improper allocation 
may reduce the complainant's eventual monthly benefit. Id. ``[I]f a 
backpay award covering a multi-year period is posted as income for 1 
year, it may result in SSA treating the [complainant] as having 
received wages in that year in excess of the annual contribution and 
benefit base.'' Id. Wages above this base are not subject to Social 
Security taxes, which reduces the amount paid on the employee's behalf. 
``As a result, the [complainant's] eventual monthly benefit will be 
reduced because participants receive a greater benefit when they have 
paid more into the system.'' Id. Finally, ``social security benefits 
are calculated using a progressive formula: although a participant 
receives more in benefits when she pays more into the system, the rate 
of return diminishes at higher annual incomes.'' Therefore, a 
complainant may ``receive a smaller monthly benefit when a multiyear 
award is posted to 1 year rather than being allocated to the 
appropriate periods, even if social security taxes were paid on the 
entire amount.'' Id. The purpose of a make-whole remedy such as back 
pay is to restore the complainant to the same position the complainant 
would have occupied absent the prohibited retaliation. That purpose is 
not achieved when the complainant suffers the disadvantages described 
above. The Secretary believes that requiring proper social security 
allocation is necessary to achieve the make-whole purpose of a back pay 
award. In addition to adding the requirement that the respondent submit 
the appropriate documentation to the Social Security Administration 
allocating the back pay to the appropriate period, OSHA has made minor 
changes throughout this section as needed to clarify the provision 
without changing its meaning.
    OSHA received two comments on the remedy of reinstatement provided 
for in this section. In the preamble to the IFR, OSHA noted that, while 
the statute is clear that reinstatement is the presumptive remedy under 
section 18C of the FLSA, in rare circumstances economic reinstatement 
or front pay in lieu of actual reinstatement may be appropriate and 
that reinstatement includes restoration of the terms, conditions, and 
privileges associated with the complainant's employment as necessary to 
put the employee in the same position or a position equivalent to the 
position that the employee held prior to the retaliation. Beckner 
commented in support of the use of economic reinstatement where the 
employer-employee relationship has broken down beyond repair.
    SEIU commented that OSHA should amend the rule to clarify that 
reinstatement, including preliminary reinstatement, means full 
restoration of pay and benefits. SEIU stated that reinstatement 
requires full restoration to the status quo and includes restoration of 
duties and hours where those were reduced to reduce an employee's pay. 
As SEIU correctly noted, OSHA's Whistleblower Investigations Manual, as 
well as relevant case law under the whistleblower protection statutes 
that OSHA administers, makes clear that reinstatement is reinstatement 
to the full status quo prior to the retaliation and would include a 
restoration of hours and duties as necessary to ensure that the 
whistleblower is returned to the same position that he or she would 
have been in absent the retaliation. The statute explicitly requires 
that the Secretary order the employer ``to reinstate the complainant to 
his or her former position together with compensation (including back 
pay) and restore the terms, conditions, and privileges associated with 
his or her employment.'' 15 U.S.C. 2087(b)(3)(B)(ii). If the employee's 
original position is not available, the employer may return the 
employee to an equivalent position. See, e.g., Hobby v. Georgia Power 
Co., ARB Nos. 98-166, 98-169, 2001 WL 168898 at *10 (ARB Feb. 9, 2001) 
(noting that ``[w]hile the remedies section of the Energy 
Reorganization Act whistleblower provision states that the Secretary 
`shall . . . reinstate the [prevailing] complainant to his former 
position . . .', this text has been construed to mean reinstatement to 
the same or a similar position to the job that was formerly held'') 
(emphasis original, citations omitted). Because the statutory text and 
the applicable case law make clear that reinstatement must restore the 
complainant to the position he would have occupied absent the 
retaliation or an equivalent position, OSHA has not made any changes to 
the rule to clarify the term reinstatement in response to SEIU's 
comment.

Subpart B--Litigation

Section 1984.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing
    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, within 30 days of 
receipt of the findings. The date of the postmark, facsimile 
transmittal, or electronic communication transmittal is considered the 
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The 
filing of objections also is considered a request for a hearing before 
an ALJ. Although the parties are directed to serve a copy of their 
objections on the other parties of record, as well as the OSHA official 
who issued the findings and order, the Assistant Secretary, and the 
U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards, the failure to serve copies of the objections on the other 
parties of record does not affect the ALJ's jurisdiction to hear and 
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear 
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 
2005).

[[Page 70617]]

    In this section, SEIU repeated its comment that the regulations 
should clarify that the term ``reinstatement,'' including ``preliminary 
reinstatement,'' means full restoration of pay and benefits. OSHA's 
response to this comment is addressed in the discussion of Sec.  
1984.105. No substantive changes have been made to this section.
Section 1984.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges 
at 29 CFR part 18 subpart A. Hearings are to commence expeditiously, 
except upon a showing of good cause or unless otherwise agreed to by 
the parties. Hearings will be conducted de novo, on the record. ALJs 
continue to have broad discretion to limit discovery where necessary to 
expedite the hearing. Formal rules of evidence will not apply, but 
rules or principles designed to assure production of the most probative 
evidence will be applied. The ALJ may exclude evidence that is 
immaterial, irrelevant, or unduly repetitious.
    No comments were received on this section and no changes were made.
Section 1984.108 Role of Federal Agencies
    The Assistant Secretary, at his or her discretion, may participate 
as a party or amicus curiae at any time in the administrative 
proceedings under section 18C of the FLSA. For example, the Assistant 
Secretary may exercise his or her discretion to prosecute the case in 
the administrative proceeding before an ALJ, petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although OSHA anticipates that ordinarily the Assistant Secretary will 
not participate, the Assistant Secretary may choose to do so in 
appropriate cases, such as cases involving important or novel legal 
issues, large numbers of employees, alleged violations that appear 
egregious, or where the interests of justice might require 
participation by the Assistant Secretary. The Internal Revenue Service 
of the United States Department of the Treasury, the United States 
Department of Health and Human Services, and the Employee Benefits 
Security Administration of the United States Department of Labor, if 
interested in a proceeding, also may participate as amicus curiae at 
any time in the proceedings.
    No comments were received on this section. Throughout this section, 
minor changes were made as needed to clarify the provision without 
changing its meaning.
Section 1984.109 Decision and Orders of the Administrative Law Judge
    This section sets forth the requirements for the content of the 
decision and order of the ALJ, and includes the standard for finding a 
violation under section 18C. Specifically, the complainant must 
demonstrate (i.e. prove by a preponderance of the evidence) that the 
protected activity was a ``contributing factor'' in the adverse action. 
See, e.g., Allen, 514 F.3d at 475 n.1 (``The term `demonstrates' means 
to prove by a preponderance of the evidence.''). If the employee 
demonstrates that the protected activity was a contributing factor in 
the adverse action, the employer, to escape liability, must demonstrate 
by ``clear and convincing evidence'' that it would have taken the same 
action in the absence of the protected activity. See id.
    Paragraph (c) of this section provides that OSHA's determinations 
regarding whether to proceed with an investigation under section 18C 
and whether to make particular investigative findings are discretionary 
decisions not subject to review by the ALJ. The ALJ hears cases de novo 
and, therefore, as a general matter, may not remand cases to OSHA to 
conduct an investigation or make further factual findings. Paragraph 
(c) also notes that the ALJ can dispose of a matter without a hearing 
if the facts and circumstances warrant.
    Paragraph (d) notes the remedies that the ALJ may order under 
section 18C and provides that interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily. Paragraph (d) has been 
revised to note that when back pay is ordered, the order will also 
require the respondent to submit appropriate documentation to the 
Social Security Administration allocating any back pay award to the 
appropriate period. Paragraph (e) requires that the ALJ's decision be 
served on all parties to the proceeding, the Assistant Secretary, and 
the U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards. Paragraph (e) also provides that any ALJ decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the ARB. If no timely petition for review is 
filed with the ARB, the decision of the ALJ becomes the final decision 
of the Secretary and is not subject to judicial review.
    No comments were received on this section. In addition to the 
revision noted above regarding the allocation of back pay to the 
appropriate period, minor changes were made as needed to clarify the 
provision without changing its meaning.
Section 1984.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 14 days 
within which to petition the ARB for review of that decision. If no 
timely petition for review is filed with the ARB, the decision of the 
ALJ becomes the final decision of the Secretary and is not subject to 
judicial review. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered the date of filing 
of the petition; if the petition is filed in person, by hand delivery 
or other means, the petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the 
ARB is not a matter of right but is accepted at the discretion of the 
ARB. The parties should identify in their petitions for review the 
legal conclusions or orders to which they object, or the objections may 
be deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. If a 
timely petition for review is filed with the ARB, any relief ordered by 
the ALJ, except for that portion ordering reinstatement, is inoperative 
while the matter is pending before the ARB. When the ARB accepts a 
petition for review, the ALJ's factual determinations will be reviewed 
under the substantial evidence standard. This section also provides 
that, based on exceptional circumstances, the ARB may grant a motion to 
stay an ALJ's preliminary order of reinstatement under section 18C, 
which otherwise would be effective, while review is conducted by the 
ARB. The Secretary believes that a stay of an ALJ's preliminary order 
of reinstatement under section 18C would be appropriate only where the 
respondent can establish the necessary criteria for equitable 
injunctive relief, i.e., irreparable injury, likelihood of success on 
the merits, a balancing of possible harms to the

[[Page 70618]]

parties, and the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it 
will order the remedies listed in paragraph (d). Interest on back pay 
will be calculated using the interest rate applicable to underpayment 
of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph 
(d) has been revised to note that when back pay is ordered, the order 
will also require the respondent to submit appropriate documentation to 
the Social Security Administration allocating any back pay award to the 
appropriate period. If the ARB determines that the respondent has not 
violated the law, an order will be issued denying the complaint.
    Beckner and Renner commented that the time period for filing a 
petition for review with the ARB of an ALJ's decision is too short. 
Beckner commented that allowing both parties only 14 days to petition 
the ARB to review an ALJ decision appeal is too short and inconsistent 
with the rule's allowing 30 days to determine whether an ALJ's decision 
was in error. Renner commented that ``[t]he proper adjudication of 
whistleblower matters would be enhanced if parties and their counsel 
can prepare their briefs, and select their issues, thoughtfully. . . . 
When faced with the unusually short time limit of fourteen (14) days to 
submit a petition that must list all issues, advocates are likely to 
overselect. To preserve issues and avoid missing a meritorious claim, 
they are likely to list every issue that might conceivably apply. While 
counsel could choose to drop issues between the petition and the brief, 
requiring counsel to list all the issues in the petition makes it more 
likely that counsel will then face pressure to brief those issues.'' He 
added that ``some whistleblowers or their counsel may find the task of 
reviewing the record to identify all appealable issues so consuming 
that they miss the short deadline for filing the petition for review.''
    Renner also commented that the provision that objections to legal 
conclusions not raised in petitions for review may be deemed waived 
should be changed. He specifically suggested that section 1984.110(a) 
should be amended to read as follows: ``The parties should identify in 
their petitions for review the legal conclusions or orders to which 
they object, or the objections may be deemed waived so that the 
Administrative Review Board may determine that the review presents 
issues worthy of full briefing.'' He stated that the provision as 
written could work against the remedial purpose of the law.
    After consideration, OSHA declines to alter the time period within 
which to appeal the decision of an ALJ. We believe that 14 days is 
sufficient and note that it is consistent with the time periods 
available under various other whistleblower provisions for which OSHA 
is responsible, which range from ten business days to 14 calendar days. 
Compare 29 CFR 1983.109(e) with 29 CFR 1985.109(e); 29 CFR 1987.109(e). 
OSHA also declines to adopt Renner's additional suggestions relating to 
this section. First, OSHA declines to extend the time limit to petition 
for review because the shorter review period is consistent with the 
practices and procedures followed in OSHA's other whistleblower 
programs. Furthermore, parties may file a motion for extension of time 
to appeal an ALJ's decision, and the ARB has discretion to grant such 
extensions.
    OSHA also declines to change the provision that objections to legal 
conclusions not raised in petitions for review ``may'' be deemed 
waived. OSHA first notes that the use of the term ``may'' in the IFR 
was made as a result of comments submitted by Renner on other 
whistleblower rules recently published by OSHA. See, e.g., Procedures 
for the Handling of Retaliation Complaints Under Section 219 of the 
Consumer Product Safety Improvement Act of 2008, 77 FR 40494, 40500-01 
(July 10, 2012); Procedures for the Handling of Retaliation Complaints 
Under the Employee Protection Provision of the Surface Transportation 
Assistance Act of 1982, as amended, 77 FR 44121, 44131-32 (July 27, 
2012). OSHA believes that use of the non-mandatory word ``may'' 
adequately addresses Renner's underlying concern that grounds not 
raised in a petition for review may be barred from consideration before 
the ARB.
    In addition to the revision noted above regarding the allocation of 
back pay to the appropriate period, minor changes were made as needed 
to clarify this section without changing its meaning.

Subpart C--Miscellaneous Provisions

Section 1984.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement
    This section provides the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It also provides for approval of settlements at 
the investigative and adjudicative stages of the case.
    No comments were received on this section. Minor changes were made 
as needed to this section to clarify the provision without changing its 
meaning.
Section 1984.112 Judicial Review
    This section describes the statutory provisions of CPSIA, 
incorporated into section 18C of the FLSA, for judicial review of 
decisions of the Secretary and requires, in cases where judicial review 
is sought, the ALJ or the ARB to submit the record of proceedings to 
the appropriate court pursuant to the rules of such court.
    No comments were received on this section and no changes were made.
Section 1984.113 Judicial Enforcement
    This section describes the Secretary's power under section 18C to 
obtain judicial enforcement of orders and the terms of settlement 
agreements. Section 18C incorporates the procedures, notifications, 
burdens of proof, remedies, and statutes of limitations set forth in 
CPSIA, 15 U.S.C. 2087(b), which expressly authorizes district courts to 
enforce orders, including preliminary orders of reinstatement, issued 
by the Secretary. See 15 U.S.C. 2087(b)(6) (``Whenever any person has 
failed to comply with an order issued under paragraph (3), the 
Secretary may file a civil action in the United States district court 
for the district in which the violation was found to occur, or in the 
United States district court for the District of Columbia, to enforce 
such order.''). Specifically, reinstatement orders issued at the close 
of OSHA's investigation are immediately enforceable in district court 
pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 18C of the FLSA 
provides, through CPSIA, that the Secretary shall order the person who 
has committed a violation to reinstate the complainant to his or her 
former position. See 15 U.S.C. 2087(b)(3)(B)(ii). Section 18C of the 
FLSA also provides, through CPSIA, that the Secretary shall accompany 
any reasonable cause finding that a violation occurred with a 
preliminary order containing the relief prescribed by subsection 
(b)(3)(B) of CPSIA, which includes reinstatement where appropriate, and 
that any preliminary order of reinstatement shall not be stayed upon 
the filing of objections. See 15 U.S.C. 2087(b)(2)(A) (``The filing of 
such objections shall not operate to stay any reinstatement remedy 
contained in the preliminary order.''). Thus, under section 18C of the 
FLSA, enforceable orders include preliminary orders that contain the 
relief of reinstatement prescribed by 15 U.S.C. 2087(b)(3)(B). This 
statutory interpretation is

[[Page 70619]]

consistent with the Secretary's interpretation of similar language in 
the Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century and Sarbanes-Oxley. See Brief for the Intervenor/Plaintiff-
Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 
10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. 
Supp. 2d 701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., 
Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 
454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal 
dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)). Also, through 
application of CPSIA, section 18C of the FLSA permits the person on 
whose behalf the order was issued to obtain judicial enforcement of the 
order. See 15 U.S.C. 2087(b)(7).
    No comments were received on this section. OSHA has revised this 
section slightly to more closely parallel the provisions of the statute 
regarding the proper venue for an enforcement action.
Section 1984.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth the statutory provisions that allow a 
complainant to bring an original de novo action in district court, 
alleging the same allegations contained in the complaint filed with 
OSHA, under certain circumstances. By incorporating the procedures, 
notifications, burdens of proof, remedies, and statutes of limitations 
set forth in CPSIA, 15 U.S.C. 2087(b), section 18C permits a 
complainant to file an action for de novo review in the appropriate 
district court if there has been no final decision of the Secretary 
within 210 days of the filing of the complaint, or within 90 days after 
receiving a written determination. ``Written determination'' refers to 
the Assistant Secretary's written findings issued at the close of 
OSHA's investigation under section 1984.105(a). 15 U.S.C. 2087(b)(4). 
The Secretary's final decision is generally the decision of the ARB 
issued under section 1984.110. In other words, a complainant may file 
an action for de novo review in the appropriate district court in 
either of the following two circumstances: (1) A complainant may file a 
de novo action in district court within 90 days of receiving the 
Assistant Secretary's written findings issued under section 
1984.105(a), or (2) a complainant may file a de novo action in district 
court if more than 210 days have passed since the filing of the 
complaint and the Secretary has not issued a final decision. The plain 
language of 15 U.S.C. 2087(b)(4), by distinguishing between actions 
that can be brought if the Secretary has not issued a ``final 
decision'' within 210 days and actions that can be brought within 90 
days after a ``written determination,'' supports allowing de novo 
actions in district court under either of the circumstances described 
above. However, in the Secretary's view, complainants may not initiate 
an action in federal court after the Secretary issues a final decision, 
even if the date of the final decision is more than 210 days after the 
filing of the complaint or within 90 days of the complainant's receipt 
of the Assistant Secretary's written findings. The purpose of the 
``kick-out'' provision is to aid the complainant in receiving a prompt 
decision. That goal is not implicated in a situation where the 
complainant already has received a final decision from the Secretary. 
In addition, permitting the complainant to file a new case in district 
court in such circumstances could conflict with the parties' rights to 
seek judicial review of the Secretary's final decision in the court of 
appeals.
    Under section 18C of the FLSA, the Assistant Secretary's written 
findings become the final order of the Secretary, not subject to 
judicial review, if no objection is filed within 30 days. See 15 U.S.C. 
2087(b)(2). Thus, a complainant may need to file timely objections to 
the Assistant Secretary's findings in order to preserve the right to 
file an action in district court.
    This section also requires that, within seven days after filing a 
complaint in district court, a complainant must provide a file-stamped 
copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, 
depending on where the proceeding is pending. In all cases, a copy of 
the complaint also must be provided to the OSHA official who issued the 
findings and/or preliminary order, the Assistant Secretary, and the 
U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards. This provision is necessary to notify the Agency that the 
complainant has opted to file a complaint in district court. This 
provision is not a substitute for the complainant's compliance with the 
requirements for service of process of the district court complaint 
contained in the Federal Rules of Civil Procedure and the local rules 
of the district court where the complaint is filed. The section also 
incorporates the statutory provisions which allow for a jury trial at 
the request of either party in a district court action, and which 
specify the remedies and burdens of proof in a district court action.
    OSHA received two comments on this section that are addressed in 
the general comments discussion. OSHA made minor changes to this 
section, substituting the term ``retaliation'' for ``discrimination'' 
and clarifying that in all cases parties must provide a copy of the 
district court complaint to the OSHA official who issued the findings 
and/or preliminary order, the Assistant Secretary, and the U.S. 
Department of Labor's Associate Solicitor for Fair Labor Standards. 
Section 1984.115 Special Circumstances; Waiver of Rules.
    This section provides that in circumstances not contemplated by 
these rules or for good cause the ALJ or the ARB may, upon application 
and notice to the parties, waive any rule as justice or the 
administration of section 18C of the FLSA requires.
    No comments were made on this section and no substantive changes 
were made.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Section 1984.103) which was previously reviewed and approved 
for use by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The 
assigned OMB control number is 1218-0236.

V. Administrative Procedure Act

    NFIB and the Chamber commented that the IFR should be reissued as a 
Notice of Proposed Rulemaking. However, the notice and comment 
rulemaking procedures of section 553 of the Administrative Procedure 
Act (APA) do not apply ``to interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' 5 
U.S.C. 553(b)(A). This rule is a rule of agency procedure, practice, 
and interpretation within the meaning of that section.
    This rule is ``procedural on its face,'' because it sets forth 
procedures for OSHA to use in investigating complaints under the 
whistleblower provisions of the ACA, and procedures for the Secretary's 
adjudication of ACA whistleblower cases. See U.S. Dep't of Labor v. 
Kast Metals Corp., 744 F.2d 1145, 1150, 1152 (5th Cir.1984) (OSHA rule 
which ``set[] forth procedural steps to guide the agency in exercise of 
its statutory authority to conduct investigations,'' was ``procedural 
on its face.''); see also American Hosp. Assoc. v. Bowen, 834 F.2d 
1037, 1050-51 (D.C. Cir. 1987) (holding the same with regard to HHS 
enforcement plan). The rule is ``primarily directed toward improving 
the efficient and effective operations of''

[[Page 70620]]

the agency. See Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) 
(citations omitted) (explaining the difference between procedural and 
legislative rules). The rule does not alter the rights or interests of 
the parties to an ACA whistleblower proceeding, which are set forth in 
the statute and relevant case law. Rather, the rule sets forth the 
procedures under which the Secretary will investigate and adjudicate 
ACA whistleblower disputes.
    The rule is also interpretative, in part, since it also clarifies 
certain statutory terms, reminds parties of their existing obligations 
under the statute, and explains preexisting requirements under the 
statute. See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1204 
(2015), quoting Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995) 
(noting that interpretative rules are ``issued by an agency to advise 
the public of the agency's construction of the statutes and rules which 
it administers'); see also Mendoza, 754 F.3d at 1021 (``Interpretative 
rules are those that clarify a statutory or regulatory term, remind 
parties of existing statutory or regulatory duties, or merely track 
preexisting requirements and explain something the statute or 
regulation already required.'') (internal citations and quotations 
omitted). Therefore, OSHA was not required to publish a notice of 
proposed rulemaking in the Federal Register and request public comments 
on this rule. Although it was not required to do so for this procedural 
and interpretative rule, OSHA sought and considered comments to enable 
the agency to improve the rules by taking into account the concerns of 
interested persons.
    Furthermore, because this rule is procedural and interpretative 
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that 
a rule be effective 30 days after publication in the Federal Register 
is inapplicable. OSHA also finds good cause to provide an immediate 
effective date for this final rule. It is in the public interest that 
the rule be effective immediately so that parties may know what 
procedures are applicable to pending cases. Furthermore, most of the 
provisions of this rule were in the IFR and have already been in effect 
since February 27, 2013 so a delayed effective date is unnecessary.

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

    NFIB and the Chamber commented that the IFR failed to comply with 
Executive Orders 12866 and 13563. OSHA disagrees. The Office of 
Management and Budget has concluded that this rule is a ``significant 
regulatory action'' within the meaning of section 3(f)(4) of Executive 
Order 12866. Executive Order 12866, reaffirmed by Executive Order 
13563, requires a full economic impact analysis only for ``economically 
significant'' rules, which are defined in Section 3(f)(1) of Executive 
Order 12866 as rules that may ``[h]ave an annual effect on the economy 
of $100 million or more, or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities.'' The rule is procedural and interpretative 
in nature. Because it simply implements procedures necessitated by 
enactment of section 18C of the FLSA, the rule is expected to have a 
negligible economic impact and no economic impact analysis under 
Section 6(a)(3)(C) of Executive Order 12866 has been prepared. For the 
same reason, and the fact that no notice of proposed rulemaking has 
been published, the rule does not require a Section 202 statement under 
the Unfunded Mandates Reform Act of 1995. 2 U.S.C. 1531 et seq. 
Finally, this rule does not have ``federalism implications,'' in that 
it does not have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government'' and therefore is not subject to Executive Order 13132 
(Federalism).

VII. Regulatory Flexibility Analysis

    NFIB and the Chamber commented that the IFR did not comply with the 
requirements of the Regulatory Flexibility Act (RFA) and that OSHA 
should have produced an Initial Regulatory Flexibility Analysis (IRFA). 
NFIB also asserts that a Small Business Advocacy Review panel is 
warranted. OSHA disagrees. The notice and comment rulemaking procedures 
of section 553 of the APA do not apply ``to interpretative rules, 
general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). Rules that are exempt 
from APA notice and comment requirements are also exempt from the RFA. 
See SBA Office of Advocacy, A Guide for Government Agencies: How to 
Comply with the Regulatory Flexibility Act, at 9 (May 2012); available 
at: 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 5 U.S.C. 553; and therefore the rule is exempt from both the 
notice and comment rulemaking procedures of the APA and the 
requirements under the RFA. For similar reasons, OSHA does not agree 
that a Small Business Advocacy Review panel is warranted.

List of Subjects in 29 CFR Part 1984

    Administrative practice and procedure, Employment, Health care, 
Investigations, Reporting and recordkeeping requirements, 
Whistleblower.

Authority and Signature

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

    Signed at Washington, DC, on October 5, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.


0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1984 
is revised to read as follows:

PART 1984--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER SECTION 1558 OF THE AFFORDABLE CARE ACT

Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1984.100 Purpose and scope.
1984.101 Definitions.
1984.102 Obligations and prohibited acts.
1984.103 Filing of retaliation complaint.
1984.104 Investigation.
1984.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1984.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1984.107 Hearings.
1984.108 Role of Federal agencies.
1984.109 Decision and orders of the administrative law judge.
1984.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1984.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1984.112 Judicial review.
1984.113 Judicial enforcement.
1984.114 District court jurisdiction of retaliation complaints.
1984.115 Special circumstances; waiver of rules.

    Authority: 29 U.S.C. 218C; Secretary of Labor's Order 1-2012 
(Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's 
Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

[[Page 70621]]

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


Sec.  1984.100  Purpose and scope.

    (a) This part implements procedures under section 1558 of the 
Patient Protection and Affordable Care Act, Public Law 111-148, 124 
Stat. 119, which was signed into law on March 23, 2010 and was amended 
by the Health Care and Education Reconciliation Act of 2010, Public Law 
111-152, 124 Stat. 1029, signed into law on March 30, 2010. The terms 
``Affordable Care Act'' or ``the Act'' are used in this part to refer 
to the final, amended version of the law. Section 1558 of the Act 
amended the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) by 
adding new section 18C. 29 U.S.C. 218C. Section 18C of the FLSA 
provides protection for an employee from retaliation because the 
employee has received a credit under section 36B of the Internal 
Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction 
(referred to as a ``subsidy'' in section 18C) under the Affordable Care 
Act, or because the employee has engaged in protected activity 
pertaining to title I of the Affordable Care Act or any amendment made 
by title I of the Affordable Care Act.
    (b) This part establishes procedures under section 18C of the FLSA 
for the expeditious handling of retaliation complaints filed by 
employees, or by persons acting on their behalf and sets forth the 
Secretary's interpretations of section 18C on certain statutory issues. 
These rules, together with those codified at 29 CFR part 18, set forth 
the procedures under section 18C of the FLSA for submission of 
complaints, investigations, issuance of findings and preliminary 
orders, objections to findings and orders, litigation before 
administrative law judges (ALJs), post-hearing administrative review, 
and withdrawals and settlements.


Sec.  1984.101  Definitions.

    As used in this part:
    (a) Advance payments of the premium tax credit or ``APTC'' means 
advance payments of the premium tax credit as defined in 45 CFR 155.20.
    (b) Affordable Care Act or ``the Act'' means the Patient Protection 
and Affordable Care Act, Public Law 111-148, 124 Stat. 119 (Mar. 23, 
2010), as amended.
    (c) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under section 18C of the FLSA.
    (d) Business days means days other than Saturdays, Sundays, and 
federal holidays.
    (e) Complainant means the employee who filed an FLSA section 18C 
complaint or on whose behalf a complaint was filed.
    (f) Employee means:
    (1) Any individual employed by an employer. In the case of an 
individual employed by a public agency, the term employee means any 
individual employed by the Government of the United States: As a 
civilian in the military departments (as defined in 5 U.S.C. 102), in 
any executive agency (as defined in 5 U.S.C. 105), in any unit of the 
judicial branch of the Government which has positions in the 
competitive service, in a nonappropriated fund instrumentality under 
the jurisdiction of the Armed Forces, in the Library of Congress, or in 
the Government Printing Office. The term employee also means any 
individual employed by the United States Postal Service or the Postal 
Regulatory Commission; and any individual employed by a State, 
political subdivision of a State, or an interstate governmental agency, 
other than an individual who is not subject to the civil service laws 
of the State, political subdivision, or agency which employs him; and 
who holds a public elective office of that State, political 
subdivision, or agency, is selected by the holder of such an office to 
be a member of his personal staff, is appointed by such an officeholder 
to serve on a policymaking level, is an immediate adviser to such an 
officeholder with respect to the constitutional or legal powers of his 
office, or is an employee in the legislative branch or legislative body 
of that State, political subdivision, or agency and is not employed by 
the legislative library of such State, political subdivision, or 
agency.
    (2) The term employee does not include:
    (i) Any individual who volunteers to perform services for a public 
agency which is a State, a political subdivision of a State, or an 
interstate governmental agency, if the individual receives no 
compensation or is paid expenses, reasonable benefits, or a nominal fee 
to perform the services for which the individual volunteered--and such 
services are not the same type of services which the individual is 
employed to perform for such public agency;
    (ii) Any employee of a public agency which is a State, political 
subdivision of a State, or an interstate governmental agency that 
volunteers to perform services for any other State, political 
subdivision, or interstate governmental agency, including a State, 
political subdivision or agency with which the employing State, 
political subdivision, or agency has a mutual aid agreement; or
    (iii) Any individual who volunteers their services solely for 
humanitarian purposes to private non-profit food banks and who receive 
groceries from the food banks.
    (3) The term employee includes former employees and applicants for 
employment.
    (g) Employer includes any person acting directly or indirectly in 
the interest of an employer in relation to an employee and includes a 
public agency, but does not include any labor organization (other than 
when acting as an employer) or anyone acting in the capacity of officer 
or agent of such labor organization.
    (h) Exchange means an Exchange as defined in 45 CFR 155.20.
    (i) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (j) Person means an individual, partnership, association, 
corporation, business trust, legal representative, or any organized 
group of persons.
    (k) Respondent means the employer named in the complaint who is 
alleged to have violated section 18C of the FLSA.
    (l) Secretary means the Secretary of Labor or person to whom 
authority under section 18C of the FLSA has been delegated.
    (m) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.
    (n) Any future regulatory revisions that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.


Sec.  1984.102  Obligations and prohibited acts.

    (a) No employer may discharge or otherwise retaliate against, 
including, but not limited to, intimidating, threatening, restraining, 
coercing, blacklisting or disciplining, any employee with respect to 
the employee's compensation, terms, conditions, or privileges of 
employment because the employee (or an individual acting at the request 
of the employee), has engaged in any of the activities specified in 
paragraphs (b)(1) through (5) of this section.
    (b) An employee is protected against retaliation because the 
employee (or an individual acting at the request of the employee) has:
    (1) Received a credit under section 36B of the Internal Revenue 
Code of

[[Page 70622]]

1986, 26 U.S.C. 36B, or a cost-sharing reduction under the Affordable 
Care Act, or been determined by an Exchange to be eligible for advance 
payments of the premium tax credit (APTC) or for a cost-sharing 
reduction;
    (2) Provided, caused to be provided, or is about to provide or 
cause to be provided to the employer, the Federal Government, or the 
attorney general of a State information relating to any violation of, 
or any act or omission the employee reasonably believes to be a 
violation of, any provision of title I of the Affordable Care Act (or 
an amendment made by title I of the Affordable Care Act);
    (3) Testified or is about to testify in a proceeding concerning 
such violation;
    (4) Assisted or participated, or is about to assist or participate, 
in such a proceeding; or
    (5) Objected to, or refused to participate in, any activity, 
policy, practice, or assigned task that the employee (or other such 
person) reasonably believed to be in violation of any provision of 
title I of the Affordable Care Act (or amendment), or any order, rule, 
regulation, standard, or ban under title I of the Affordable Care Act 
(or amendment).


Sec.  1984.103  Filing of retaliation complaint.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against in violation of section 18C of the FLSA may file, or 
have filed by any person on the employee's behalf, a complaint alleging 
such retaliation.
    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the employee resides or was employed, but may be filed with any 
OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: https://www.osha.gov.
    (d) Time for filing. Within 180 days after an alleged violation of 
section 18C of the FLSA occurs, any employee who believes that he or 
she has been retaliated against in violation of that section may file, 
or have filed by any person on the employee's behalf, a complaint 
alleging such retaliation. The date of the postmark, facsimile 
transmittal, electronic communication transmittal, telephone call, 
hand-delivery, delivery to a third-party commercial carrier, or in-
person filing at an OSHA office will be considered the date of filing. 
The time for filing a complaint may be tolled for reasons warranted by 
applicable case law. For example, OSHA may consider the time for filing 
a complaint equitably tolled if a complainant mistakenly files a 
complaint with another agency instead of OSHA within 180 days after 
becoming aware of the alleged violation.


Sec.  1984.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
will notify the respondent of the filing of the complaint, of the 
allegations contained in the complaint, and of the substance of the 
evidence supporting the complaint. Such materials will be redacted, if 
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, et 
seq., and other applicable confidentiality laws. OSHA will also notify 
the respondent of its rights under paragraphs (b) and (f) of this 
section and Sec.  1984.110(e). OSHA will provide an unredacted copy of 
these same materials to the complainant (or complainant's legal counsel 
if complainant is represented by counsel) and to the appropriate office 
of the federal agency charged with the administration of the general 
provisions of the Affordable Care Act under which the complaint is 
filed: Either the Internal Revenue Service of the United States 
Department of the Treasury (IRS), the United States Department of 
Health and Human Services (HHS), or the Employee Benefits Security 
Administration of the United States Department of Labor (EBSA).
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
and the complainant each may submit to OSHA a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent and the complainant each may request a meeting 
with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party 
provide the other parties to the whistleblower complaint with a copy of 
submissions to OSHA that are pertinent to the whistleblower complaint. 
Alternatively, if a party does not provide its submissions to OSHA to 
the other party, OSHA will provide them to the other party (or the 
party's legal counsel if the party is represented by counsel) at a time 
permitting the other party an opportunity to respond. Before providing 
such materials to the other party, OSHA will redact them, if necessary, 
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other 
applicable confidentiality laws. OSHA will also provide each party with 
an opportunity to respond to the other party's submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that a protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give 
rise to an inference that the respondent knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the adverse action. The burden may be 
satisfied, for example, if the complaint shows that the adverse action 
took place shortly after the protected activity, or at the first 
opportunity available to respondent, giving rise to the inference that 
it was a contributing factor in the adverse action. If the required 
showing has not been made, the complainant (or the complainant's legal 
counsel, if complainant is represented by counsel) will be so notified 
and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, further investigation of 
the complaint will not be conducted if the respondent demonstrates by 
clear and convincing evidence that it would have taken the

[[Page 70623]]

same adverse action in the absence of the complainant's protected 
activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, OSHA will proceed 
with the investigation. The investigation will proceed whenever it is 
necessary or appropriate to confirm or verify the information provided 
by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1984.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated section 18C of the FLSA and 
that preliminary reinstatement is warranted, OSHA will contact the 
respondent (or the respondent's legal counsel if respondent is 
represented by counsel) to give notice of the substance of the relevant 
evidence supporting the complainant's allegations as developed during 
the course of the investigation. This evidence includes any witness 
statements, which will be redacted to protect the identity of 
confidential informants where statements were given in confidence; if 
the statements cannot be redacted without revealing the identity of 
confidential informants, summaries of their contents will be provided. 
The complainant will also receive a copy of the materials that must be 
provided to the respondent under this paragraph. Before providing such 
materials to the complainant, OSHA will redact them, if necessary, 
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other 
applicable confidentiality laws. The respondent will be given the 
opportunity to submit a written response, to meet with the 
investigator, to present statements from witnesses in support of its 
position, and to present legal and factual arguments. The respondent 
must present this evidence within 10 business days of OSHA's 
notification pursuant to this paragraph, or as soon afterwards as OSHA 
and the respondent can agree, if the interests of justice so require.


Sec.  1984.105   Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of the complaint, written findings as to whether or not 
there is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of section 18C of the FLSA.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, the Assistant Secretary 
will accompany the findings with a preliminary order providing relief 
to the complainant. The preliminary order will require, where 
appropriate: Affirmative action to abate the violation; reinstatement 
of the complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney and expert witness 
fees) reasonably incurred. Interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily. The preliminary order will 
also require the respondent to submit appropriate documentation to the 
Social Security Administration allocating any back pay award to the 
appropriate period.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and, where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested (or other means 
that allow OSHA to confirm receipt), to all parties of record (and each 
party's legal counsel if the party is represented by counsel). The 
findings and, where appropriate, the preliminary order will inform the 
parties of the right to object to the findings and/or order and to 
request a hearing, and of the right of the respondent to request an 
award of attorney fees not exceeding $1,000 from the administrative law 
judge (ALJ), regardless of whether the respondent has filed objections, 
if respondent alleges that the complaint was frivolous or brought in 
bad faith. The findings, and where appropriate, the preliminary order, 
also will give the address of the Chief Administrative Law Judge, U.S. 
Department of Labor. At the same time, the Assistant Secretary will 
file with the Chief Administrative Law Judge a copy of the original 
complaint and a copy of the findings and/or order.
    (c) The findings and any preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and/or a request for hearing has been timely filed as 
provided at Sec.  1984.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1984.106  Objections to the findings and the preliminary order 
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and/or preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney fees under section 18C of the FLSA, must file any objections 
and/or a request for a hearing on the record within 30 days of receipt 
of the findings and preliminary order pursuant to Sec.  1984.105(b). 
The objections, request for a hearing, and/or request for attorney fees 
must be in writing and state whether the objections are to the findings 
and/or the preliminary order, and/or whether there should be an award 
of attorney fees. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered the date of filing; 
if the objection is filed in person, by hand delivery or other means, 
the objection is filed upon receipt. Objections must be filed with the 
Chief Administrative Law Judge, U.S. Department of Labor, and copies of 
the objections must be mailed at the same time to the other parties of 
record, the OSHA official who issued the findings and order, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.

[[Page 70624]]

Sec.  1984.107  Hearings.

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


Sec.  1984.108   Role of Federal agencies.

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


Sec.  1984.109  Decision and orders of the administrative law judge.

    (a) The decision of the administrative law judge (ALJ) will contain 
appropriate findings, conclusions, and an order pertaining to the 
remedies provided in paragraph (d) of this section, as appropriate. A 
determination that a violation has occurred may be made only if the 
complainant has demonstrated by a preponderance of the evidence that 
protected activity was a contributing factor in the adverse action 
alleged in the complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither OSHA's determination to dismiss a complaint without 
completing an investigation pursuant to Sec.  1984.104(e) nor OSHA's 
determination to proceed with an investigation is subject to review by 
the ALJ, and a complaint may not be remanded for the completion of an 
investigation or for additional findings on the basis that a 
determination to dismiss was made in error. Rather, if there otherwise 
is jurisdiction, the ALJ will hear the case on the merits or dispose of 
the matter without a hearing if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order that will require, where appropriate: 
Affirmative action to abate the violation; reinstatement of the 
complainant to his or her former position, together with the 
compensation (including back pay and interest), terms, conditions, and 
privileges of the complainant's employment; and payment of compensatory 
damages, including, at the request of the complainant, the aggregate 
amount of all costs and expenses (including attorney and expert witness 
fees) reasonably incurred. Interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily. The order will also require 
the respondent to submit appropriate documentation to the Social 
Security Administration allocating any back pay award to the 
appropriate period.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the ALJ may award to the 
respondent reasonable attorney fees, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring 
reinstatement or lifting an order of reinstatement by the Assistant 
Secretary will be effective immediately upon receipt of the decision by 
the respondent. All other portions of the ALJ's order will be effective 
14 days after the date of the decision unless a timely petition for 
review has been filed with the Administrative Review Board (ARB), U.S. 
Department of Labor. The decision of the ALJ will become the final 
order of the Secretary unless a petition for review is timely filed 
with the ARB and the ARB accepts the petition for review.


Sec.  1984.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney 
fees, must file a written petition for review with the Administrative 
Review Board (ARB), which has been delegated the authority to act for 
the Secretary and issue final decisions under this part. The parties 
should identify in their petitions for review the legal conclusions or 
orders to which they object, or the objections may be deemed waived. A 
petition must be filed within 14 days of the date of the decision of 
the ALJ. The date of the postmark, facsimile transmittal, or electronic 
communication transmittal will be considered to be the date of filing; 
if the petition is filed in person, by hand delivery or other means, 
the petition is considered filed upon receipt. The petition must be 
served on all parties and on the Chief Administrative Law Judge at the 
time it is filed with the ARB. Copies of the petition for review must 
be served on the Assistant Secretary, and on the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the

[[Page 70625]]

decision, except that any order of reinstatement will be effective 
while review is conducted by the ARB, unless the ARB grants a motion by 
the respondent to stay that order based on exceptional circumstances. 
The ARB will specify the terms under which any briefs are to be filed. 
The ARB will review the factual determinations of the ALJ under the 
substantial evidence standard. If no timely petition for review is 
filed, or the ARB denies review, the decision of the ALJ will become 
the final order of the Secretary. If no timely petition for review is 
filed, the resulting final order is not subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 14 days after 
the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim. In such 
case, the conclusion of the hearing is the date the motion for 
reconsideration is ruled upon or 14 days after a new decision is 
issued. The ARB's final decision will be served upon all parties and 
the Chief Administrative Law Judge by mail. The final decision will 
also be served on the Assistant Secretary, and on the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue a final order providing relief to the complainant. 
The final order will require, where appropriate: Affirmative action to 
abate the violation; reinstatement of the complainant to the 
complainant's former position, together with the compensation 
(including back pay and interest), terms, conditions, and privileges of 
the complainant's employment; and payment of compensatory damages, 
including, at the request of the complainant, the aggregate amount of 
all costs and expenses (including attorney and expert witness fees) 
reasonably incurred. Interest on back pay will be calculated using the 
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 
and will be compounded daily. The order will also require the 
respondent to submit appropriate documentation to the Social Security 
Administration allocating any back pay award to the appropriate period.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent reasonable attorney fees, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1984.111  Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying the Assistant Secretary, 
orally or in writing, of his or her withdrawal. The Assistant Secretary 
then will confirm in writing the complainant's desire to withdraw and 
determine whether to approve the withdrawal. The Assistant Secretary 
will notify the parties (and each party's legal counsel if the party is 
represented by counsel) of the approval of any withdrawal. If the 
complaint is withdrawn because of settlement, the settlement must be 
submitted for approval in accordance with paragraph (d) of this 
section. A complainant may not withdraw his or her complaint after the 
filing of objections to the Assistant Secretary's findings and/or 
preliminary order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1984.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
OSHA, the complainant, and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA's consent and achieves the consent of all three 
parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ, or 
by the ARB if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB, as appropriate.
    (e) Any settlement approved by OSHA, the ALJ, or the ARB will 
constitute the final order of the Secretary and may be enforced in 
United States district court pursuant to Sec.  1984.113.


Sec.  1984.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1984.109 and 1984.110, any person adversely affected or 
aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the complainant 
resided on the date of the violation.
    (b) A final order is not subject to judicial review in any criminal 
or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB or the ALJ, as the case may be, to the appropriate court 
pursuant to the Federal Rules of Appellate Procedure and the local 
rules of such court.


Sec.  1984.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement, or a final order, including one approving a 
settlement agreement, issued under section 18C of the FLSA, the 
Secretary may file a civil action seeking enforcement of the order in 
the United States district court for the district in which the 
violation was found to have occurred or in the United States district 
court for the District of

[[Page 70626]]

Columbia. Whenever any person has failed to comply with a preliminary 
order of reinstatement, or a final order, including one approving a 
settlement agreement, issued under section 18C of the FLSA, a person on 
whose behalf the order was issued may file a civil action seeking 
enforcement of the order in the appropriate United States district 
court.


Sec.  1984.114  District court jurisdiction of retaliation complaints.

    (a) The complainant may bring an action at law or equity for de 
novo review in the appropriate district court of the United States, 
which will have jurisdiction over such an action without regard to the 
amount in controversy, either:
    (1) Within 90 days after receiving a written determination under 
Sec.  1984.105(a) provided that there has been no final decision of the 
Secretary; or
    (2) If there has been no final decision of the Secretary within 210 
days of the filing of the complaint.
    (3) At the request of either party, the action shall be tried by 
the court with a jury.
    (b) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1984.109. The court shall have jurisdiction to grant all relief 
necessary to make the employee whole, including injunctive relief and 
compensatory damages, including:
    (1) Reinstatement with the same seniority status that the employee 
would have had, but for the discharge or retaliation;
    (2) The amount of back pay, with interest; and
    (3) Compensation for any special damages sustained as a result of 
the discharge or retaliation, including litigation costs, expert 
witness fees, and reasonable attorney fees.
    (c) Within seven days after filing a complaint in federal court, a 
complainant must file with the Assistant Secretary, the ALJ, or the 
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. In all cases, a copy of the complaint also must be 
served on the OSHA official who issued the findings and/or preliminary 
order, the Assistant Secretary, and the Associate Solicitor, Division 
of Fair Labor Standards, U.S. Department of Labor.


Sec.  1984.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of this 
part, or for good cause shown, the ALJ or the ARB on review may, upon 
application, after three-days notice to all parties, waive any rule or 
issue such orders that justice or the administration of section 18C of 
the FLSA requires.
[FR Doc. 2016-24559 Filed 10-12-16; 8:45 am]
 BILLING CODE 4510-26-P