Discrimination Against Employees Exercising Rights Under the Williams-Steiger Occupational Safety and Health Act of 1970, 49472-49476 [2021-19071]
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49472
Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations
(2) Create a component history card or
equivalent record to establish a life limit of
10,000 total landings.
(3) Thereafter, remove any high landing
gear aft crosstube from service before
accumulating 10,000 total landings.
The Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as
follows:
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40113, 44701.
§ 39.13
[Amended]
2. The FAA amends § 39.13 by adding
the following new airworthiness
directive:
■
2021–18–07 Leonardo S.p.a.: Amendment
39–21708; Docket No. FAA–2021–0718;
Project Identifier MCAI–2020–00601–R.
(a) Effective Date
This airworthiness directive (AD) is
effective September 20, 2021.
(b) Affected ADs
None.
(c) Applicability
This AD applies to Leonardo S.p.a. Model
AB412 and AB412 EP helicopters,
certificated in any category, with a high skid
landing gear assembly part number (P/N)
412–050–012–(XXX), 412–050–014–(XXX),
412–050–050–(XXX), or 412–050–059–
(XXX), where ‘‘(XXX)’’ represents any 3-digit
combination, installed.
(d) Subject
Joint Aircraft Service Component (JASC)
Code: 3200, Landing Gear System.
(e) Unsafe Condition
This AD was prompted by the results of a
fatigue review. The FAA is issuing this AD
to prevent parts from remaining in service
beyond their fatigue life. The unsafe
condition, if not addressed, could result in
failure of a part and subsequent damage to
the helicopter and injuries to occupants.
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(f) Compliance
Comply with this AD within the
compliance times specified, unless already
done.
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(i) Related Information
(1) For more information about this AD,
contact Kenneth Cook, Airframe/Structural/
Mechanical Engineer, Certification Section,
Fort Worth ACO Branch, FAA, 10101
Hillwood Pkwy., Fort Worth, TX 76177;
telephone (817) 222–5475; email
kenneth.a.cook@faa.gov.
(2) The subject of this AD is addressed in
European Aviation Safety Agency (now
European Union Aviation Safety Agency)
(EASA) AD 2017–0097, dated June 7, 2017.
You may view the EASA AD at https://
www.regulations.gov in Docket No. FAA–
2021–0718.
(j) Material Incorporated by Reference
None.
Issued on August 24, 2021.
Gaetano A. Sciortino,
Deputy Director for Strategic Initiatives,
Compliance & Airworthiness Division,
Aircraft Certification Service.
[FR Doc. 2021–19032 Filed 9–2–21; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF LABOR
(g) Required Actions
For high landing gear aft crosstube P/Ns
412–050–010–101, 412–050–010–107, 412–
050–010–111, and 412–050–045–107:
(1) Before further flight after the effective
date of this AD, determine the total number
of landings. For purposes of this AD, a
landing is counted anytime a helicopter lifts
off into the air and then lands again
regardless of the duration of the landing and
regardless of whether the engine is
shutdown. If the total number of landings
cannot be determined, multiply the total
hours time-in-service accumulated by the
high landing gear aft crosstube by 4. Remove
any high landing gear aft crosstube from
service that has accumulated or exceeded
10,000 total landings.
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(h) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, International Validation
Branch, FAA, has the authority to approve
AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In
accordance with 14 CFR 39.19, send your
request to your principal inspector or local
Flight Standards District Office, as
appropriate. If sending information directly
to the manager of the International Validation
Branch, send it to the attention of the person
identified in paragraph (i)(1) of this AD.
Information may be emailed to: 9-AVS-AIR730-AMOC@faa.gov.
(2) Before using any approved AMOC,
notify your appropriate principal inspector,
or lacking a principal inspector, the manager
of the local flight standards district office/
certificate holding district office.
Occupational Safety and Health
Administration
29 CFR Part 1977
[Docket Number: OSHA–2021–0002]
RIN 1218–AD35
Discrimination Against Employees
Exercising Rights Under the WilliamsSteiger Occupational Safety and Health
Act of 1970
Occupational Safety and Health
Administration, Labor.
ACTION: Final interpretive rule.
AGENCY:
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The Occupational Safety and
Health Administration (OSHA) is
amending one of the rules interpreting
the anti-retaliation provision of the
Occupational Safety and Health Act of
1970 (OSH Act or Act) to clarify that the
test for showing a nexus between
protected activity and adverse action is
‘‘but-for’’ causation.
DATES: This final interpretive rule is
effective on September 3, 2021.
FOR FURTHER INFORMATION CONTACT: Rob
Swick, Directorate of Whistleblower
Protection Programs, Occupational
Safety and Health Administration, U.S.
Department of Labor; telephone: (202)
693–2199; email: OSHA.DWPP@dol.gov.
SUPPLEMENTARY INFORMATION: OSHA is
revising the interpretive rule at 29 CFR
1977.6(b), which addresses causation
under the anti-retaliation (colloquially
‘‘whistleblower’’) provision of the OSH
Act, section 11(c), 29 U.S.C. 660(c). For
the reasons explained in the following
sections, the agency is removing
outdated language to clarify that the
only means by which the Secretary of
Labor (Secretary) may prove a causal
connection between protected activity
and adverse action under the OSH Act
is to show that ‘‘but for’’ the protected
activity the employee would not have
suffered the adverse action.
SUMMARY:
I. Background
Congress enacted the OSH Act, to
assure so far as possible every working
man and woman in the Nation safe and
healthful working conditions and to
preserve our human resources. 29 U.S.C.
651(b). To achieve this goal, Congress
authorized the Secretary, among other
things, to set and enforce occupational
safety and health standards. The
Secretary’s assigned enforcement
powers, including the power to inspect
workplaces and issue citations and
notifications of proposed penalties to
employers who violate the standards
developed under the OSH Act, have
been delegated to OSHA. 29 U.S.C.
657(a), 658, 666; Secretary of Labor’s
Order No. 08–2020 (85 FR 58393,
September 18, 2020).
In addition, the Act affords employees
and their representatives certain rights.
For example, section 8(f)(1) of the Act
provides employees and representatives
of employees who believe that a
violation of a safety or health standard
that threatens physical harm exists or
that an imminent danger exists with the
right to request an inspection by giving
notice to the Secretary or his authorized
representative of such violation or
danger. 29 U.S.C. 657(f)(1). Such
employee complaints aid the agency in
accomplishing the goal of assuring safe
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and healthful working conditions by
alerting the agency to potential hazards
that may not have been otherwise
discovered and, thus, allowing those
hazards to be corrected.
Congress also included an antiretaliation (colloquially
‘‘whistleblower’’) provision in the Act to
protect individual employees from
retaliation for reporting safety
deficiencies or participating in OSH Act
proceedings. 29 U.S.C. 660(c)(1). This
provision, which is included in section
11(c)(1), provides that no person may
discharge or otherwise discriminate—in
other words, take an adverse action—
against any employee ‘‘because’’ such
employee has filed any complaint or
instituted or caused to be instituted any
proceeding under or related to the Act,
or has testified or was about to testify
in any such proceeding, or because of
the exercise by such employee on behalf
of himself or herself or others of any
right afforded by the Act. 29 U.S.C.
660(c)(1).
Section 11(c)(2) contains the remedies
for any such retaliation. Specifically,
section 11(c)(2) provides that if an
employee believes that they have been
discharged, or otherwise discriminated
against, in violation of section 11(c)(1),
such an employee may file a complaint
with the Secretary. 29 U.S.C. 660(c)(2).
The Secretary, upon receipt of such a
complaint, ‘‘shall cause such
investigation to be made as he deems
appropriate,’’ and if upon investigation,
the Secretary determines that section
11(c) has been violated, the Secretary
shall bring suit in district court against
any person who discharges or
discriminates against any employee for
the exercise of protected rights under
the OSH Act. 29 U.S.C. 660(c)(2).
Section 11(c)(2) also provides district
courts with jurisdiction over such
actions and empowers them for cause
shown to ‘‘order all appropriate relief,
including rehiring or reinstatement of
the employee to his or her former
position with back pay.’’ 29 U.S.C.
660(c)(2).
In 1973, OSHA issued rules
implementing and interpreting section
11(c). 38 FR 2681 (Jan. 29, 1973). The
rules were published in 29 CFR part
1977. Their purpose was to make
available in one place interpretations of
section 11(c) which guide the Secretary
in carrying out the provision unless and
until otherwise directed by authoritative
decisions of the courts, or concluding,
upon reexamination of an
interpretation, that it is incorrect. 29
CFR 1977.2.
As noted above, section 11(c) protects
employees from retaliation, i.e., adverse
action, for engaging in certain
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delineated activities. See 29 CFR 1977.3
(listing activities protected by section
11(c)). Those activities are known as
‘‘protected activities.’’ However, as
discussed in 29 CFR 1977.6(a), adverse
actions taken by an employer may be
predicated upon ‘‘nondiscriminatory
grounds’’ and such actions would not
necessarily violate section 11(c). Or, put
another way, section 11(c) of the OSH
Act does not prohibit an employer from
discharging or disciplining an employee
for engaging in ‘‘unprotected activities,’’
i.e., discharge or discipline for
‘‘legitimate reasons’’ or ‘‘non-prohibited
considerations.’’ See 29 CFR 1977.6(a).
Section 1977.6(b) recognizes that an
employer’s adverse action against an
employee may have more than one
cause. For example, an employer’s
termination of an employee may be
motivated in part by the employee’s
complaint about an unsafe workplace
condition and in part by the employee’s
poor work performance. As stated in
section 1977.6(b), an employer’s mixed
motivation for an adverse action does
not necessarily invalidate an employee’s
section 11(c) complaint. See 29 CFR
1977.6(b) (‘‘[T]o establish a violation of
section 11(c), [a]n employee’s
engagement in protected activity need
not be the sole consideration behind
discharge or other adverse action.’’).
Section 1977.6(b) provided two ways
in which a causal connection between
protected activity and adverse action
could be established: (1) If protected
activity was a substantial reason for the
adverse action; or (2) if the adverse
action would not have taken place ‘‘but
for’’ engagement in protected activity. In
support of this two-pronged test, the
regulation cited two court of appeals
decisions finding violations of the
whistleblower provision of the Fair
Labor Standards Act, 29 U.S.C.
215(a)(3), prohibiting discharge or other
discrimination against an employee
‘‘because’’ such employee has filed a
complaint under or related to that
statute or engaged in related protected
activities. Mitchell v. Goodyear Tire &
Rubber Co., 278 F.2d 562, 565 (8th Cir.
1960) (employee would not have been
fired ‘‘but for’’ his complaint to the
Wage-Hour Division); Goldberg v. Bama
Mfg. Corp., 302 F.2d 152 (5th Cir. 1962).
Since the issuance of the section 11(c)
interpretive rules in 1973, the test under
other statutes for determining whether
an adverse action occurred ‘‘because of’’
a protected activity, i.e., the causation
test, has gone through a number of
changes. In 2009, the Supreme Court
considered the causation test under the
Age Discrimination in Employment Act
(ADEA), which makes it unlawful for an
employer to take adverse action against
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49473
an employee ‘‘because of such
individual’s age.’’ 29 U.S.C. 623(a);
Gross v. FBL Financial Services, Inc.,
557 U.S. 167 (2009). In so doing, the
Court explained that the ordinary
meaning of the ADEA’s requirement that
an employer took adverse action
‘‘because of’’ age is that age was the
‘‘reason’’ that the employer decided to
act. Therefore, the Court held that to
establish a disparate treatment claim
under the plain language of the ADEA,
the plaintiff had to prove that age was
the ‘‘but for’’ cause of the employer’s
adverse action; the burden of persuasion
does not shift to the employer to show
that it would have taken the same action
regardless of age. Gross, 557 U.S. at
175–77, 180.
The Gross decision was followed in
Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013). In that case, the
Supreme Court interpreted the antiretaliation provision of Title VII, which
bans discrimination against an
employee ‘‘because’’ he or she has
opposed any practice made unlawful by
Title VII or engaged in related activities.
In the decision, the Court relied first on
the default rule in tort law which
applies absent contrary statutory
language, i.e., that a plaintiff must show
that but for the defendant’s conduct the
harm would not have occurred. Nassar,
570 U.S. at 348, 350. The Court then
reiterated what it had held in Gross—
that the ordinary meaning of the word
‘‘because of’’ means that the plaintiff
must prove but-for causation. Id. at 350.
It emphasized that although Gross
concerned an interpretation of the
ADEA, it had some persuasive force
because of its textual basis and the
concern in both cases with the meaning
of the word ‘‘because.’’ Id. at 351.
Therefore, the Court held that because
there was no meaningful difference
between the text in the ADEA and that
in the Title VII anti-retaliation
provision, the proper conclusion, as in
Gross, is that the Title VII antiretaliation provision requires a showing
of but-for causation. Id. at 352.
The Supreme Court has continued to
apply the ‘‘but for’’ formulation as the
proper test for causation for a variety of
statutes in which causation is an
element. For example, most recently, in
Bostock v. Clay County, Georgia, 140 S
Ct. 1731, 1739 (2020), the Supreme
Court held that the phrase ‘‘because of’’
means but-for causation and then
offered more direction on the meaning
of the but-for causation standard. The
dispute in Bostock arose under Title VII
of the Civil Rights Act of 1964, which
makes it unlawful for an employer to
fail or refuse to hire or to discharge any
individual, or otherwise to discriminate
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against any individual, ‘‘because of’’
such individual’s race, color, religion,
sex, or national origin. 42 U.S.C. 2000e–
2(a)(1). Citing Nassar, the Supreme
Court reiterated that Title VII’s ‘‘because
of’’ test incorporates the ‘‘simple’’ and
‘‘traditional’’ standard of but-for
causation. Bostock, 140 S Ct. at 1738.
The Court explained that but-for
causation is established whenever a
particular outcome would not have
happened ‘‘but for’’ the purported
cause. Id. at 1739 (citing Gross, 557 U.S.
at 176). Put another way, the Court
added, the but-for causation test
‘‘directs us to change one thing at a time
and see if the outcome changes. If it
does, we have found a but-for cause.’’
Id. at 1739. Importantly, the Court made
clear that events often have multiple
but-for causes. Id. The but-for causation
test does not require that the prohibited
factor be the sole or primary reason for
the adverse action. Id.
Federal courts of appeals have
followed Nassar and Gross in applying
the but-for causation test under other
statutes using the word ‘‘because.’’ See,
e.g., Lestage v. Coloplast Corp., 982 F.3d
37, 46 (1st Cir. 2020) (joining the Third,
Fourth, Fifth, and Eleventh Circuit
Courts of Appeals in holding that the
False Claims Act’s prohibition against
discriminating against an employee
‘‘because of’’ that employee’s protected
conduct is a but-for standard); Natofsky
v. City of New York, 921 F.3d 337, 347–
50, 348 (2d Cir. 2019), cert. denied, 140
S Ct. 2668 (2020) (holding that the
Rehabilitation Act incorporates by
reference the Americans with
Disabilities Act’s (ADA) ‘‘but-for’’
causation standard; ‘‘Gross and Nassar
dictate our decision here.’’); Acosta v.
Brain, 910 F.3d 502, 514 (9th Cir. 2018)
(assuming, without deciding, that the
but-for causation standard applies to
cases under section 510 of the Employee
Retirement Income Security Act, which
uses the word ‘‘because’’).
As noted above, section 11(c)(1) of the
OSH Act provides that ‘‘[n]o person
shall discharge or in any manner
discriminate against any employee
because such employee has’’ engaged in
certain protected activities. 29 U.S.C.
660(c)(1). After the Nassar decision,
OSHA recognized that the correct
causation standard under this provision
would be ‘‘but-for.’’ Therefore, OSHA
included the but-for causation standard
in the 2016 revision to the
Whistleblower Investigations Manual
(WIM).1 See https://
1 The WIM outlines procedures, and other
information relative to the handling of retaliation
complaints under the various whistleblower
statutes delegated to OSHA.
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www.whistleblowers.gov/manual.
Specifically, the agency revised the WIM
to require that in a section 11(c) case
OSHA must have reasonable cause to
believe that the employer would not
have carried out the adverse action ‘‘but
for’’ the protected activity (Chapter 3
par. V.B.i.).
Similarly, OSHA included the but-for
causation standard in the 2018 OSHA
Fact Sheet, Filing Whistleblower
Complaints under Section 11(c) of the
OSH Act of 1970. See https://
www.osha.gov/Publications/
OSHA3812.pdf. The Fact Sheet states
that a person taking adverse action
against an employee may be found to
have violated section 11(c) if the
employee would not have experienced
the adverse action ‘‘but for’’ protected
activity. OSHA’s Investigator’s Desk Aid
to the Occupational Safety and Health
Act (OSH Act) Whistleblower Provision,
issued in 2019, also states that the
Secretary has the burden of proving butfor causation in a section 11(c) case. See
https://www.osha.gov/sites/default/
files/11cDeskAid.pdf.
Discussion of Update to 29 CFR
1977.6(b)
This final interpretive rule updates
OSHA’s 1973 section 11(c) interpretive
rule at 29 CFR 1977.6(b) to bring it in
line with the Supreme Court’s holdings
in Gross, Nassar, and Bostock. Prior to
this rule, the provision had not yet been
updated to reflect the newer causation
test compelled by the Supreme Court;
until the revision in this rule, the
interpretive rule stated in part that if
protected activity was merely a
‘‘substantial reason’’ for the adverse
action, section 11(c) has been violated.
That interpretation is not in alignment
with Gross, Nassar, and Bostock, and it
is inconsistent with OSHA’s policy
documents stating (on the basis of
Nassar) that but-for causation must be
shown to prove a section 11(c) violation.
To bring the interpretive rule in line
with Supreme Court precedent and
OSHA’s current interpretation, the
agency is revising § 1977.6(b) in three
ways. First, and most importantly, this
rule revises the second sentence of the
provision by removing the ‘‘substantial
reason’’ language. As explained above,
that sentence previously provided two
ways in which a causal connection
between protected activity and adverse
action could be established in mixed
motive cases: (1) If protected activity
was a substantial reason for the adverse
action; or (2) if the adverse action would
not have taken place ‘‘but for’’
engagement in protected activity. By
removing the ‘‘substantial reason’’
option, OSHA is clarifying that to
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prevail in a section 11(c) case the
Secretary must show that but for the
protected activity the employee would
not have suffered the adverse action.
Second, this rule deletes the citations
to the two cases that appeared after the
previous second sentence (Mitchell v.
Goodyear Tire & Rubber Co., 278 F.2d
562, 565 (8th Cir. 1960) and Goldberg v.
Bama Mfg. Corp., 302 F.2d 152 (5th Cir.
1962)) and the parenthetical
accompanying the reference to Mitchell
and replaces those cases with citations
to Bostock (Bostock v. Clay County,
Georgia, U.S., 140 S Ct. 1731, 1739
(2020)) and Nassar (Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338
(2013)). Deleting the references to the
older cases should reduce the chance of
any confusion about the appropriate
causation standard. In addition, the
updated citations should help
employers and other stakeholders easily
access information about the relevant
causation standard should they wish to
know more.
Third, this rule amends the first
sentence of § 1977.6(b) by adding the
words ‘‘or primary’’ before the word
‘‘consideration.’’ Prior to this change,
that sentence stated: ‘‘At the same time,
to establish a violation of section 11(c),
the employee’s engagement in protected
activity need not be the sole
consideration behind discharge or other
adverse action.’’ Adding ‘‘or primary’’
further emphasizes the Supreme Court’s
holdings and reflects the language in
Bostock that the protected factor need
not be the primary reason for the
adverse action. See Bostock, 140 S Ct. at
1739.
In addition, OSHA is making one
clarifying change to the last sentence of
29 CFR 1977.6(b), which is unrelated to
the issues regarding the but-for
causation standard. The previous
version of that sentence stated that the
issue as to whether a ‘‘discharge’’ was
because of protected activity will have
to be determined on the basis of the
facts in the particular case. This rule
revises that sentence to add the words
‘‘or other adverse action’’ to reflect the
full scope of section 11(c)’s prohibition
against retaliation.
OSHA notes that these changes do not
affect the interpretation in 29 CFR
1977.6(b) that the employee’s
engagement in protected activity need
not be the sole consideration for the
adverse action in order for a violation of
section 11(c) to be established. That
language is consistent with Bostock. See
140 S Ct. at 1739. Likewise, this revision
does not affect any of the whistleblower
provisions of other statutes enforced by
OSHA that have special language on the
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proof of causation in clarifying the word
‘‘because.’’ 2
II. Paperwork Reduction Act
This rule does not require any
collection of information within the
meaning of the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.).
III. Administrative Procedure Act
The notice and comment rulemaking
procedures of 5 U.S.C. 553, a provision
of the Administrative Procedure Act
(APA), do not apply ‘‘to interpretative
rules, general statements of policy, or
rules of agency organization, procedure,
or practice.’’ 5 U.S.C. 553(b)(A). This
rule is an interpretive rule compelled by
Supreme Court case law. Therefore,
publication in the Federal Register of a
notice of proposed rulemaking and
request for comments was not required.
Furthermore, because this rule is
interpretive, rather than substantive, the
normal requirement of 5 U.S.C. 553(d)
that a rule be effective 30 days after
publication in the Federal Register is
inapplicable.
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IV. State Plans
Pursuant to section 18 of the Act, 29
U.S.C. 667, a State may assume
responsibility for the promulgation and
enforcement of occupational safety and
health standards relating to any issue
with respect to which a Federal
standard has been promulgated if OSHA
approves a plan submitted by the State.
To be approved, the State Plan must
provide for standards, and the
enforcement of those standards, which
are at least as effective as Federal OSHA
standards and enforcement. 29 U.S.C.
667(c)(2). One of the mandatory criteria
for ‘‘at least as effective’’ enforcement is
a provision, similar to section 11(c), for
necessary and appropriate protection to
an employee against discharge or
discrimination because the employee
has filed a complaint, testified, or
otherwise acted to exercise rights under
the Act for himself or herself or others.
29 CFR 1902.4(c)(2)(v) and
1956.11(c)(2)(v). This provision must be
enforced at least as effectively as
Federal OSHA enforces section 11(c). 29
CFR 1902.3(d) (provisions of a State
2 OSHA enforces other whistleblower provisions
under which a violation is proved if it has been
shown by a preponderance of the evidence that
protected activity was a contributing factor in the
adverse action, but relief may not be ordered if the
respondent demonstrates by clear and convincing
evidence that the adverse action would have been
taken in the absence of the protected activity. An
example of one of these provisions is the
whistleblower provision of the Wendell H. Ford
Aviation Investment and Reform Act for the 21st
Century (AIR21). The specific language on
causation is set forth at 49 U.S.C. 42121(b)(2)(B)(iii)
and (iv).
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Plan must be enforced as effectively as
Federal OSHA enforces analogous
provisions); 29 CFR 1956.10(d) (similar
provision for State Plans which cover
only State and local government
employees).
OSHA is revising the interpretive rule
regarding the causal connection
between an employee’s protected
activity and the discharge or other
adverse action needed to establish a
violation of section 11(c) of the OSH
Act. This revised interpretive rule
(interpreting the word ‘‘because’’ in
section 11(c) to mean ‘‘but for’’
causation) is narrower than OSHA’s
prior interpretive rule (which merely
required that the protected activity be a
‘‘substantial reason’’ for the adverse
action). A State Plan, acting under State
law, is not obligated to follow the
causation test adopted by the United
States Supreme Court in interpreting
Federal statutes. Thus, a State Plan
would not be required to adopt this
change in order to remain at least as
effective as Federal OSHA. The State’s
test for establishing causation under the
occupational safety and health antiretaliation provision must not be less
effective than the Federal ‘‘but for’’
causation test that this rule establishes.
Thus, the State Plan test cannot further
narrow the causation requirement
beyond ‘‘but for’’ causation.
Of the 28 States and territories with
OSHA-approved State Plans, 22 cover
State and local government, as well as
private-sector, employees: Alaska,
Arizona, California, Hawaii, Indiana,
Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North
Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont,
Virginia, Washington, and Wyoming.
The remaining five states and one
territory cover only State and local
government employees: Connecticut,
Illinois, Maine, New Jersey, New York,
and the Virgin Islands.
V. Federalism
The agency reviewed this rule in
accordance with the most recent
Executive order on Federalism,
Executive Order 13132, which requires
that Federal agencies, to the extent
possible, refrain from limiting State
policy options, consult with States
before taking actions that would restrict
States’ policy options, and take such
actions only when clear constitutional
authority exists and the problem is of
national scope (64 FR 43255). The final
rule involves an interpretive regulation
issued under sections 8 and 11 of the
OSH Act (29 U.S.C. 657, 660) and not
an ‘‘occupational safety and health
standard’’ issued under section 6 of the
PO 00000
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Fmt 4700
Sfmt 4700
49475
OSH Act (29 U.S.C. 655). Therefore,
pursuant to section 18 of the OSH Act
(29 U.S.C. 667(a)), the rule does not
preempt state law. The effect of the final
rule on State Plans is discussed in
section IV, State Plans.
VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of section
3(f)(4) of Executive Order 12866, as
reaffirmed by Executive Order 13563,
because it is not likely to: (1) Have an
annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in Executive
Order 12866. Therefore, no regulatory
impact analysis has been prepared.
OSHA has also determined that this
interpretive rule will not impose costs
of more than $100 million per year and
is not a significant regulatory action
within the meaning of section 202 of the
Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1532 and does not
meet the definition of a ‘‘Federal
intergovernmental mandate’’ within the
meaning of section 421(f) of the UMRA
(2 U.S.C. 658(5)).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking
procedures of section 553 of the APA do
not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). Rules that
are exempt from APA notice and
comment requirements at 5 U.S.C. 553
are also exempt from the Regulatory
Flexibility Act (RFA) (see 5 U.S.C.
604(a); Small Business Administration
Office of Advocacy, A Guide for
Government Agencies: How to Comply
with the Regulatory Flexibility Act, at 9;
also found at https://www.sba.gov/
advocacy/guide-government-agencieshow-comply-regulatory-flexibility-act).
This is a rule of agency interpretation
within the meaning of 5 U.S.C. 553 and
therefore is exempt from both the notice
and comment rulemaking procedures of
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49476
Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations
the APA and the requirements of the
RFA.
DEPARTMENT OF HOMELAND
SECURITY
List of Subjects in 29 CFR Part 1977
Coast Guard
Administrative practice and
procedure, Employment, Investigations,
Safety, Whistleblowing.
[Docket Number USCG–2021–0505]
Authority and Signature
RIN 1625–AA08
James S. Frederick, Acting Assistant
Secretary for Occupational Safety and
Health, authorized the preparation of
this document under the authority
granted by Secretary’s Order 08–2020
(May 15, 2020).
Special Local Regulation; Chesapeake
Bay, Between Sandy Point and Kent
Island, MD
Signed at Washington, DC.
James S. Frederick,
Acting Assistant Secretary for Occupational
Safety and Health.
SUMMARY:
For the reasons stated in the
preamble, OSHA amends part 1977 of
chapter XVII of title 29 as follows:
PART 1977—[AMENDED]
1. Revise the authority citation for part
1977 to read as follows:
■
Authority: 29 U.S.C. 657, 660; 5 U.S.C.
553; and Secretary of Labor’s Order No. 08–
2020 (85 FR 58393), 9–83 (48 FR 35736), or
12–71 (36 FR 8754), as applicable.
2. In § 1977.6, revise paragraph (b) to
read as follows:
■
§ 1977.6 Unprotected activities
distinguished.
*
*
*
*
*
(b) At the same time, to establish a
violation of section 11(c), the
employee’s engagement in protected
activity need not be the sole or primary
consideration behind discharge or other
adverse action. If the discharge or other
adverse action would not have taken
place ‘‘but for’’ engagement in protected
activity, section 11(c) has been violated.
See Bostock v. Clay County, Ga., 140 S
Ct. 1731, 1739 (2020); Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338 (2013).
Ultimately, the issue as to whether a
discharge or other adverse action was
because of protected activity will have
to be determined on the basis of the
facts in the particular case.
[FR Doc. 2021–19071 Filed 9–2–21; 8:45 am]
BILLING CODE 4510–26–P
lotter on DSK11XQN23PROD with RULES1
33 CFR Part 100
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary special local
regulation for certain waters of the
Chesapeake Bay. This action is
necessary to provide for the safety of life
on these navigable waters located
between Sandy Point, Anne Arundel
County, MD, and Kent Island, Queen
Anne’s County, MD, during a paddling
event on September 26, 2021. This
regulation prohibits persons and vessels
from entering the regulated area unless
authorized by the Captain of the Port
Maryland-National Capital Region or the
Coast Guard Event Patrol Commander.
DATES: This rule is effective from 7 a.m.
to 1 p.m. on September 26, 2021.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2021–
0505 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Next, in the Document
Type column, select ‘‘Supporting &
Related Material.’’
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Mr. Ron Houck, U.S. Coast Guard
Sector Maryland-National Capital
Region; telephone 410–576–2674, email
D05-DG-SectorMD-NCR-MarineEvents@
uscg.mil.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PATCOM Patrol Commander
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
ABC Events, Inc. of Arnold, MD,
notified the Coast Guard that from 8
a.m. to noon on September 26, 2021, it
will be conducting the Bay Bridge
Paddle on the Chesapeake Bay, under
and between the north and south
VerDate Sep<11>2014
16:01 Sep 02, 2021
Jkt 253001
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
bridges that consist of the William P.
Lane, Jr. (US–50/301) Memorial Bridges,
located between Sandy Point, Anne
Arundel County, MD and Kent Island,
Queen Anne’s County, MD. In response,
on July 15, 2021, the Coast Guard
published a notice of proposed
rulemaking (NPRM) titled ‘‘Special
Local Regulation; Chesapeake Bay,
Between Sandy Point and Kent Island,
MD’’ (86 FR 37270). There we stated
why we issued the NPRM, and invited
comments on our proposed regulatory
action related to this paddle racing
event. During the comment period that
ended August 16, 2021, we received no
comments.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Due to the date of the event,
it would be impracticable to make the
regulation effective 30 days after
publication in the Federal Register.
Delaying the effective date date of this
rule would be impracticable and
contrary to the public interest because
immediate action is needed to respond
to the potential safety hazards
associated with the ‘‘Bay Bridge Paddle’’
event.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 46 U.S.C. 70041. The
Captain of the Port Maryland-National
Capital Region (COTP) has determined
that potential hazards associated with
the paddle races will be a safety concern
for anyone intending to participate in
this event or for vessels that operate
within specified waters of the
Chesapeake Bay between Sandy Point
and Kent Island, MD. These hazards
include numerous event participants
crossing designated navigation channels
and interfering with vessels operating
within those channels, as well as
operating within approaches to the
Sandy Point State Park public boat
launch facility and marina. The purpose
of this rule is to protect event
participants, non-participants and
transiting vessels before, during, and
after the scheduled event.
IV. Discussion of Comments, Changes,
and the Rule
As noted above, we received no
comments on our NPRM published July
15, 2021. There are no changes in the
regulatory text of this rule from the
proposed rule in the NPRM.
This rule establishes special local
regulations from 7 a.m. to 1 p.m. on
September 26, 2021. The regulated area
will cover all navigable waters of the
Chesapeake Bay, adjacent to the
E:\FR\FM\03SER1.SGM
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Agencies
[Federal Register Volume 86, Number 169 (Friday, September 3, 2021)]
[Rules and Regulations]
[Pages 49472-49476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19071]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1977
[Docket Number: OSHA-2021-0002]
RIN 1218-AD35
Discrimination Against Employees Exercising Rights Under the
Williams-Steiger Occupational Safety and Health Act of 1970
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final interpretive rule.
-----------------------------------------------------------------------
SUMMARY: The Occupational Safety and Health Administration (OSHA) is
amending one of the rules interpreting the anti-retaliation provision
of the Occupational Safety and Health Act of 1970 (OSH Act or Act) to
clarify that the test for showing a nexus between protected activity
and adverse action is ``but-for'' causation.
DATES: This final interpretive rule is effective on September 3, 2021.
FOR FURTHER INFORMATION CONTACT: Rob Swick, Directorate of
Whistleblower Protection Programs, Occupational Safety and Health
Administration, U.S. Department of Labor; telephone: (202) 693-2199;
email: [email protected].
SUPPLEMENTARY INFORMATION: OSHA is revising the interpretive rule at 29
CFR 1977.6(b), which addresses causation under the anti-retaliation
(colloquially ``whistleblower'') provision of the OSH Act, section
11(c), 29 U.S.C. 660(c). For the reasons explained in the following
sections, the agency is removing outdated language to clarify that the
only means by which the Secretary of Labor (Secretary) may prove a
causal connection between protected activity and adverse action under
the OSH Act is to show that ``but for'' the protected activity the
employee would not have suffered the adverse action.
I. Background
Congress enacted the OSH Act, to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources. 29 U.S.C. 651(b). To
achieve this goal, Congress authorized the Secretary, among other
things, to set and enforce occupational safety and health standards.
The Secretary's assigned enforcement powers, including the power to
inspect workplaces and issue citations and notifications of proposed
penalties to employers who violate the standards developed under the
OSH Act, have been delegated to OSHA. 29 U.S.C. 657(a), 658, 666;
Secretary of Labor's Order No. 08-2020 (85 FR 58393, September 18,
2020).
In addition, the Act affords employees and their representatives
certain rights. For example, section 8(f)(1) of the Act provides
employees and representatives of employees who believe that a violation
of a safety or health standard that threatens physical harm exists or
that an imminent danger exists with the right to request an inspection
by giving notice to the Secretary or his authorized representative of
such violation or danger. 29 U.S.C. 657(f)(1). Such employee complaints
aid the agency in accomplishing the goal of assuring safe
[[Page 49473]]
and healthful working conditions by alerting the agency to potential
hazards that may not have been otherwise discovered and, thus, allowing
those hazards to be corrected.
Congress also included an anti-retaliation (colloquially
``whistleblower'') provision in the Act to protect individual employees
from retaliation for reporting safety deficiencies or participating in
OSH Act proceedings. 29 U.S.C. 660(c)(1). This provision, which is
included in section 11(c)(1), provides that no person may discharge or
otherwise discriminate--in other words, take an adverse action--against
any employee ``because'' such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related
to the Act, or has testified or was about to testify in any such
proceeding, or because of the exercise by such employee on behalf of
himself or herself or others of any right afforded by the Act. 29
U.S.C. 660(c)(1).
Section 11(c)(2) contains the remedies for any such retaliation.
Specifically, section 11(c)(2) provides that if an employee believes
that they have been discharged, or otherwise discriminated against, in
violation of section 11(c)(1), such an employee may file a complaint
with the Secretary. 29 U.S.C. 660(c)(2). The Secretary, upon receipt of
such a complaint, ``shall cause such investigation to be made as he
deems appropriate,'' and if upon investigation, the Secretary
determines that section 11(c) has been violated, the Secretary shall
bring suit in district court against any person who discharges or
discriminates against any employee for the exercise of protected rights
under the OSH Act. 29 U.S.C. 660(c)(2). Section 11(c)(2) also provides
district courts with jurisdiction over such actions and empowers them
for cause shown to ``order all appropriate relief, including rehiring
or reinstatement of the employee to his or her former position with
back pay.'' 29 U.S.C. 660(c)(2).
In 1973, OSHA issued rules implementing and interpreting section
11(c). 38 FR 2681 (Jan. 29, 1973). The rules were published in 29 CFR
part 1977. Their purpose was to make available in one place
interpretations of section 11(c) which guide the Secretary in carrying
out the provision unless and until otherwise directed by authoritative
decisions of the courts, or concluding, upon reexamination of an
interpretation, that it is incorrect. 29 CFR 1977.2.
As noted above, section 11(c) protects employees from retaliation,
i.e., adverse action, for engaging in certain delineated activities.
See 29 CFR 1977.3 (listing activities protected by section 11(c)).
Those activities are known as ``protected activities.'' However, as
discussed in 29 CFR 1977.6(a), adverse actions taken by an employer may
be predicated upon ``nondiscriminatory grounds'' and such actions would
not necessarily violate section 11(c). Or, put another way, section
11(c) of the OSH Act does not prohibit an employer from discharging or
disciplining an employee for engaging in ``unprotected activities,''
i.e., discharge or discipline for ``legitimate reasons'' or ``non-
prohibited considerations.'' See 29 CFR 1977.6(a).
Section 1977.6(b) recognizes that an employer's adverse action
against an employee may have more than one cause. For example, an
employer's termination of an employee may be motivated in part by the
employee's complaint about an unsafe workplace condition and in part by
the employee's poor work performance. As stated in section 1977.6(b),
an employer's mixed motivation for an adverse action does not
necessarily invalidate an employee's section 11(c) complaint. See 29
CFR 1977.6(b) (``[T]o establish a violation of section 11(c), [a]n
employee's engagement in protected activity need not be the sole
consideration behind discharge or other adverse action.'').
Section 1977.6(b) provided two ways in which a causal connection
between protected activity and adverse action could be established: (1)
If protected activity was a substantial reason for the adverse action;
or (2) if the adverse action would not have taken place ``but for''
engagement in protected activity. In support of this two-pronged test,
the regulation cited two court of appeals decisions finding violations
of the whistleblower provision of the Fair Labor Standards Act, 29
U.S.C. 215(a)(3), prohibiting discharge or other discrimination against
an employee ``because'' such employee has filed a complaint under or
related to that statute or engaged in related protected activities.
Mitchell v. Goodyear Tire & Rubber Co., 278 F.2d 562, 565 (8th Cir.
1960) (employee would not have been fired ``but for'' his complaint to
the Wage-Hour Division); Goldberg v. Bama Mfg. Corp., 302 F.2d 152 (5th
Cir. 1962).
Since the issuance of the section 11(c) interpretive rules in 1973,
the test under other statutes for determining whether an adverse action
occurred ``because of'' a protected activity, i.e., the causation test,
has gone through a number of changes. In 2009, the Supreme Court
considered the causation test under the Age Discrimination in
Employment Act (ADEA), which makes it unlawful for an employer to take
adverse action against an employee ``because of such individual's
age.'' 29 U.S.C. 623(a); Gross v. FBL Financial Services, Inc., 557
U.S. 167 (2009). In so doing, the Court explained that the ordinary
meaning of the ADEA's requirement that an employer took adverse action
``because of'' age is that age was the ``reason'' that the employer
decided to act. Therefore, the Court held that to establish a disparate
treatment claim under the plain language of the ADEA, the plaintiff had
to prove that age was the ``but for'' cause of the employer's adverse
action; the burden of persuasion does not shift to the employer to show
that it would have taken the same action regardless of age. Gross, 557
U.S. at 175-77, 180.
The Gross decision was followed in Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338 (2013). In that case, the Supreme Court
interpreted the anti-retaliation provision of Title VII, which bans
discrimination against an employee ``because'' he or she has opposed
any practice made unlawful by Title VII or engaged in related
activities. In the decision, the Court relied first on the default rule
in tort law which applies absent contrary statutory language, i.e.,
that a plaintiff must show that but for the defendant's conduct the
harm would not have occurred. Nassar, 570 U.S. at 348, 350. The Court
then reiterated what it had held in Gross--that the ordinary meaning of
the word ``because of'' means that the plaintiff must prove but-for
causation. Id. at 350. It emphasized that although Gross concerned an
interpretation of the ADEA, it had some persuasive force because of its
textual basis and the concern in both cases with the meaning of the
word ``because.'' Id. at 351. Therefore, the Court held that because
there was no meaningful difference between the text in the ADEA and
that in the Title VII anti-retaliation provision, the proper
conclusion, as in Gross, is that the Title VII anti-retaliation
provision requires a showing of but-for causation. Id. at 352.
The Supreme Court has continued to apply the ``but for''
formulation as the proper test for causation for a variety of statutes
in which causation is an element. For example, most recently, in
Bostock v. Clay County, Georgia, 140 S Ct. 1731, 1739 (2020), the
Supreme Court held that the phrase ``because of'' means but-for
causation and then offered more direction on the meaning of the but-for
causation standard. The dispute in Bostock arose under Title VII of the
Civil Rights Act of 1964, which makes it unlawful for an employer to
fail or refuse to hire or to discharge any individual, or otherwise to
discriminate
[[Page 49474]]
against any individual, ``because of'' such individual's race, color,
religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1). Citing
Nassar, the Supreme Court reiterated that Title VII's ``because of''
test incorporates the ``simple'' and ``traditional'' standard of but-
for causation. Bostock, 140 S Ct. at 1738. The Court explained that
but-for causation is established whenever a particular outcome would
not have happened ``but for'' the purported cause. Id. at 1739 (citing
Gross, 557 U.S. at 176). Put another way, the Court added, the but-for
causation test ``directs us to change one thing at a time and see if
the outcome changes. If it does, we have found a but-for cause.'' Id.
at 1739. Importantly, the Court made clear that events often have
multiple but-for causes. Id. The but-for causation test does not
require that the prohibited factor be the sole or primary reason for
the adverse action. Id.
Federal courts of appeals have followed Nassar and Gross in
applying the but-for causation test under other statutes using the word
``because.'' See, e.g., Lestage v. Coloplast Corp., 982 F.3d 37, 46
(1st Cir. 2020) (joining the Third, Fourth, Fifth, and Eleventh Circuit
Courts of Appeals in holding that the False Claims Act's prohibition
against discriminating against an employee ``because of'' that
employee's protected conduct is a but-for standard); Natofsky v. City
of New York, 921 F.3d 337, 347-50, 348 (2d Cir. 2019), cert. denied,
140 S Ct. 2668 (2020) (holding that the Rehabilitation Act incorporates
by reference the Americans with Disabilities Act's (ADA) ``but-for''
causation standard; ``Gross and Nassar dictate our decision here.'');
Acosta v. Brain, 910 F.3d 502, 514 (9th Cir. 2018) (assuming, without
deciding, that the but-for causation standard applies to cases under
section 510 of the Employee Retirement Income Security Act, which uses
the word ``because'').
As noted above, section 11(c)(1) of the OSH Act provides that
``[n]o person shall discharge or in any manner discriminate against any
employee because such employee has'' engaged in certain protected
activities. 29 U.S.C. 660(c)(1). After the Nassar decision, OSHA
recognized that the correct causation standard under this provision
would be ``but-for.'' Therefore, OSHA included the but-for causation
standard in the 2016 revision to the Whistleblower Investigations
Manual (WIM).\1\ See https://www.whistleblowers.gov/manual.
Specifically, the agency revised the WIM to require that in a section
11(c) case OSHA must have reasonable cause to believe that the employer
would not have carried out the adverse action ``but for'' the protected
activity (Chapter 3 par. V.B.i.).
---------------------------------------------------------------------------
\1\ The WIM outlines procedures, and other information relative
to the handling of retaliation complaints under the various
whistleblower statutes delegated to OSHA.
---------------------------------------------------------------------------
Similarly, OSHA included the but-for causation standard in the 2018
OSHA Fact Sheet, Filing Whistleblower Complaints under Section 11(c) of
the OSH Act of 1970. See https://www.osha.gov/Publications/OSHA3812.pdf. The Fact Sheet states that a person taking adverse action
against an employee may be found to have violated section 11(c) if the
employee would not have experienced the adverse action ``but for''
protected activity. OSHA's Investigator's Desk Aid to the Occupational
Safety and Health Act (OSH Act) Whistleblower Provision, issued in
2019, also states that the Secretary has the burden of proving but-for
causation in a section 11(c) case. See https://www.osha.gov/sites/default/files/11cDeskAid.pdf.
Discussion of Update to 29 CFR 1977.6(b)
This final interpretive rule updates OSHA's 1973 section 11(c)
interpretive rule at 29 CFR 1977.6(b) to bring it in line with the
Supreme Court's holdings in Gross, Nassar, and Bostock. Prior to this
rule, the provision had not yet been updated to reflect the newer
causation test compelled by the Supreme Court; until the revision in
this rule, the interpretive rule stated in part that if protected
activity was merely a ``substantial reason'' for the adverse action,
section 11(c) has been violated. That interpretation is not in
alignment with Gross, Nassar, and Bostock, and it is inconsistent with
OSHA's policy documents stating (on the basis of Nassar) that but-for
causation must be shown to prove a section 11(c) violation.
To bring the interpretive rule in line with Supreme Court precedent
and OSHA's current interpretation, the agency is revising Sec.
1977.6(b) in three ways. First, and most importantly, this rule revises
the second sentence of the provision by removing the ``substantial
reason'' language. As explained above, that sentence previously
provided two ways in which a causal connection between protected
activity and adverse action could be established in mixed motive cases:
(1) If protected activity was a substantial reason for the adverse
action; or (2) if the adverse action would not have taken place ``but
for'' engagement in protected activity. By removing the ``substantial
reason'' option, OSHA is clarifying that to prevail in a section 11(c)
case the Secretary must show that but for the protected activity the
employee would not have suffered the adverse action.
Second, this rule deletes the citations to the two cases that
appeared after the previous second sentence (Mitchell v. Goodyear Tire
& Rubber Co., 278 F.2d 562, 565 (8th Cir. 1960) and Goldberg v. Bama
Mfg. Corp., 302 F.2d 152 (5th Cir. 1962)) and the parenthetical
accompanying the reference to Mitchell and replaces those cases with
citations to Bostock (Bostock v. Clay County, Georgia, U.S., 140 S Ct.
1731, 1739 (2020)) and Nassar (Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013)). Deleting the references to the older cases should
reduce the chance of any confusion about the appropriate causation
standard. In addition, the updated citations should help employers and
other stakeholders easily access information about the relevant
causation standard should they wish to know more.
Third, this rule amends the first sentence of Sec. 1977.6(b) by
adding the words ``or primary'' before the word ``consideration.''
Prior to this change, that sentence stated: ``At the same time, to
establish a violation of section 11(c), the employee's engagement in
protected activity need not be the sole consideration behind discharge
or other adverse action.'' Adding ``or primary'' further emphasizes the
Supreme Court's holdings and reflects the language in Bostock that the
protected factor need not be the primary reason for the adverse action.
See Bostock, 140 S Ct. at 1739.
In addition, OSHA is making one clarifying change to the last
sentence of 29 CFR 1977.6(b), which is unrelated to the issues
regarding the but-for causation standard. The previous version of that
sentence stated that the issue as to whether a ``discharge'' was
because of protected activity will have to be determined on the basis
of the facts in the particular case. This rule revises that sentence to
add the words ``or other adverse action'' to reflect the full scope of
section 11(c)'s prohibition against retaliation.
OSHA notes that these changes do not affect the interpretation in
29 CFR 1977.6(b) that the employee's engagement in protected activity
need not be the sole consideration for the adverse action in order for
a violation of section 11(c) to be established. That language is
consistent with Bostock. See 140 S Ct. at 1739. Likewise, this revision
does not affect any of the whistleblower provisions of other statutes
enforced by OSHA that have special language on the
[[Page 49475]]
proof of causation in clarifying the word ``because.'' \2\
---------------------------------------------------------------------------
\2\ OSHA enforces other whistleblower provisions under which a
violation is proved if it has been shown by a preponderance of the
evidence that protected activity was a contributing factor in the
adverse action, but relief may not be ordered if the respondent
demonstrates by clear and convincing evidence that the adverse
action would have been taken in the absence of the protected
activity. An example of one of these provisions is the whistleblower
provision of the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (AIR21). The specific language on causation is
set forth at 49 U.S.C. 42121(b)(2)(B)(iii) and (iv).
---------------------------------------------------------------------------
II. Paperwork Reduction Act
This rule does not require any collection of information within the
meaning of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
III. Administrative Procedure Act
The notice and comment rulemaking procedures of 5 U.S.C. 553, a
provision of the Administrative Procedure Act (APA), do not apply ``to
interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). This rule
is an interpretive rule compelled by Supreme Court case law. Therefore,
publication in the Federal Register of a notice of proposed rulemaking
and request for comments was not required. Furthermore, because this
rule is interpretive, rather than substantive, the normal requirement
of 5 U.S.C. 553(d) that a rule be effective 30 days after publication
in the Federal Register is inapplicable.
IV. State Plans
Pursuant to section 18 of the Act, 29 U.S.C. 667, a State may
assume responsibility for the promulgation and enforcement of
occupational safety and health standards relating to any issue with
respect to which a Federal standard has been promulgated if OSHA
approves a plan submitted by the State. To be approved, the State Plan
must provide for standards, and the enforcement of those standards,
which are at least as effective as Federal OSHA standards and
enforcement. 29 U.S.C. 667(c)(2). One of the mandatory criteria for
``at least as effective'' enforcement is a provision, similar to
section 11(c), for necessary and appropriate protection to an employee
against discharge or discrimination because the employee has filed a
complaint, testified, or otherwise acted to exercise rights under the
Act for himself or herself or others. 29 CFR 1902.4(c)(2)(v) and
1956.11(c)(2)(v). This provision must be enforced at least as
effectively as Federal OSHA enforces section 11(c). 29 CFR 1902.3(d)
(provisions of a State Plan must be enforced as effectively as Federal
OSHA enforces analogous provisions); 29 CFR 1956.10(d) (similar
provision for State Plans which cover only State and local government
employees).
OSHA is revising the interpretive rule regarding the causal
connection between an employee's protected activity and the discharge
or other adverse action needed to establish a violation of section
11(c) of the OSH Act. This revised interpretive rule (interpreting the
word ``because'' in section 11(c) to mean ``but for'' causation) is
narrower than OSHA's prior interpretive rule (which merely required
that the protected activity be a ``substantial reason'' for the adverse
action). A State Plan, acting under State law, is not obligated to
follow the causation test adopted by the United States Supreme Court in
interpreting Federal statutes. Thus, a State Plan would not be required
to adopt this change in order to remain at least as effective as
Federal OSHA. The State's test for establishing causation under the
occupational safety and health anti-retaliation provision must not be
less effective than the Federal ``but for'' causation test that this
rule establishes. Thus, the State Plan test cannot further narrow the
causation requirement beyond ``but for'' causation.
Of the 28 States and territories with OSHA-approved State Plans, 22
cover State and local government, as well as private-sector, employees:
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington,
and Wyoming. The remaining five states and one territory cover only
State and local government employees: Connecticut, Illinois, Maine, New
Jersey, New York, and the Virgin Islands.
V. Federalism
The agency reviewed this rule in accordance with the most recent
Executive order on Federalism, Executive Order 13132, which requires
that Federal agencies, to the extent possible, refrain from limiting
State policy options, consult with States before taking actions that
would restrict States' policy options, and take such actions only when
clear constitutional authority exists and the problem is of national
scope (64 FR 43255). The final rule involves an interpretive regulation
issued under sections 8 and 11 of the OSH Act (29 U.S.C. 657, 660) and
not an ``occupational safety and health standard'' issued under section
6 of the OSH Act (29 U.S.C. 655). Therefore, pursuant to section 18 of
the OSH Act (29 U.S.C. 667(a)), the rule does not preempt state law.
The effect of the final rule on State Plans is discussed in section IV,
State Plans.
VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995
The Department has concluded that this rule is not a ``significant
regulatory action'' within the meaning of section 3(f)(4) of Executive
Order 12866, as reaffirmed by Executive Order 13563, because it is not
likely to: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in Executive Order
12866. Therefore, no regulatory impact analysis has been prepared.
OSHA has also determined that this interpretive rule will not
impose costs of more than $100 million per year and is not a
significant regulatory action within the meaning of section 202 of the
Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532 and does not
meet the definition of a ``Federal intergovernmental mandate'' within
the meaning of section 421(f) of the UMRA (2 U.S.C. 658(5)).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking procedures of section 553 of the
APA do not apply ``to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice.'' 5
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment
requirements at 5 U.S.C. 553 are also exempt from the Regulatory
Flexibility Act (RFA) (see 5 U.S.C. 604(a); Small Business
Administration Office of Advocacy, A Guide for Government Agencies: How
to Comply with the Regulatory Flexibility Act, at 9; also found at
https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act). This is a rule of agency interpretation
within the meaning of 5 U.S.C. 553 and therefore is exempt from both
the notice and comment rulemaking procedures of
[[Page 49476]]
the APA and the requirements of the RFA.
List of Subjects in 29 CFR Part 1977
Administrative practice and procedure, Employment, Investigations,
Safety, Whistleblowing.
Authority and Signature
James S. Frederick, Acting Assistant Secretary for Occupational
Safety and Health, authorized the preparation of this document under
the authority granted by Secretary's Order 08-2020 (May 15, 2020).
Signed at Washington, DC.
James S. Frederick,
Acting Assistant Secretary for Occupational Safety and Health.
For the reasons stated in the preamble, OSHA amends part 1977 of
chapter XVII of title 29 as follows:
PART 1977--[AMENDED]
0
1. Revise the authority citation for part 1977 to read as follows:
Authority: 29 U.S.C. 657, 660; 5 U.S.C. 553; and Secretary of
Labor's Order No. 08-2020 (85 FR 58393), 9-83 (48 FR 35736), or 12-
71 (36 FR 8754), as applicable.
0
2. In Sec. 1977.6, revise paragraph (b) to read as follows:
Sec. 1977.6 Unprotected activities distinguished.
* * * * *
(b) At the same time, to establish a violation of section 11(c),
the employee's engagement in protected activity need not be the sole or
primary consideration behind discharge or other adverse action. If the
discharge or other adverse action would not have taken place ``but
for'' engagement in protected activity, section 11(c) has been
violated. See Bostock v. Clay County, Ga., 140 S Ct. 1731, 1739 (2020);
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). Ultimately,
the issue as to whether a discharge or other adverse action was because
of protected activity will have to be determined on the basis of the
facts in the particular case.
[FR Doc. 2021-19071 Filed 9-2-21; 8:45 am]
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