Procedures for the Handling of Retaliation Complaints Under the Anti-Money Laundering Act of 2020 (AMLA), 3021-3035 [2025-00539]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 90, Number 8 (Tuesday, January 14, 2025)]
[Rules and Regulations]
[Pages 3021-3035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00539]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1992

[Docket Number: OSHA-2022-0005]
RIN 1218-AD37


Procedures for the Handling of Retaliation Complaints Under the 
Anti-Money Laundering Act of 2020 (AMLA)

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the interim final text of regulations 
governing the anti-retaliation provisions of the Anti-Money Laundering 
Act of 2020 (AMLA or the Act). This rule establishes procedures and 
timeframes for the handling of retaliation complaints under AMLA, 
including procedures and timeframes for 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 (Secretary)), and judicial review of the Secretary's final 
decision. It also sets forth the Secretary's interpretations of the 
AMLA anti-retaliation provision on certain matters.

DATES: This interim final rule is effective on January 14, 2025. 
Comments and additional materials must be submitted (post-marked, sent 
or received) by March 17, 2025.

ADDRESSES: Submit comments by the following method:
    Electronically: You may submit comments and attachments 
electronically at: https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions online for submitting 
comments.
    Docket: To read or download comments or other material in the 
docket, go to https://www.regulations.gov. Documents in the docket are 
listed in the https://www.regulations.gov index; however, some 
information (e.g., copyrighted material) is not publicly available to 
read or download through the website. All submissions, including 
copyrighted material, are available for inspection through the OSHA 
Docket Office. Contact the OSHA Docket Office at (202) 693-2350 (TTY 
(877) 889-5627) for assistance in locating docket submissions.
    Instructions: All submissions must include the agency name and the 
OSHA docket number for this Federal Register document (OSHA-2022-0005). 
OSHA will place comments and requests to speak, including personal 
information, in the public docket, which may be available online. 
Therefore, OSHA cautions interested parties about submitting personal 
information such as Social Security numbers and birthdates. For further 
information on submitting comments, see the ``Public Participation'' 
heading in the section of this document titled SUPPLEMENTARY 
INFORMATION.
    Extension of comment period: Submit requests for an extension of 
the comment period on or before January 29, 2025 to the Directorate of

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Whistleblower Protection Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, 200 Constitution Avenue NW, 
Room N-3647, Washington, DC 20210, or by fax to (202) 693-2199.

FOR FURTHER INFORMATION CONTACT: Philippe Blanc[aacute]to, 
Investigative Specialist, Directorate of Whistleblower Protection 
Programs, Occupational Safety and Health Administration, U.S. 
Department of Labor, Room N-3647, 200 Constitution Avenue NW, 
Washington, DC 20210; telephone (202) 693-2199 (this is not a toll-free 
number) or email: [email protected]. This Federal Register publication 
is available in alternative formats.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 1, 2021, Congress enacted the William M. (Mac) 
Thornberry National Defense Authorization Act for Fiscal Year 2021, 
Public Law 116-283, 134 Stat. 3388 (January 1, 2021) which included 
significant reforms to the U.S. anti-money laundering framework, 
including the Anti-Money Laundering Act of 2020. That law was, in turn, 
amended by the Anti-Money Laundering Whistleblower Improvements Act, 
Sec. 401 of the Consolidated Appropriations Act of 2023, Public Law 
117-328, 136 Stat 4459 (enacted December 29, 2022). The anti-
retaliation provisions, codified at 31 U.S.C. 5323 (g)(1)-(3) & (5)-
(6), and referred to throughout this interim final rule as AMLA, the 
Act, or the AMLA anti-retaliation provisions, prohibit retaliation by 
an employer against a whistleblower in the terms and conditions of 
employment or post-employment in reprisal for the whistleblower having 
engaged in protected activity.\1\ Protected activity under AMLA 
includes any lawful act done by a whistleblower in reporting certain 
information to the Secretary of the Treasury; Attorney General; a 
Federal regulatory or law enforcement agency; any Member of Congress or 
any committee of Congress; or the employer of the individual, including 
as part of the job duties of the individual. The employer includes ``a 
person with supervisory authority over the whistleblower, or such other 
person working for the employer who has the authority to investigate, 
discover, or terminate misconduct.'' 31 U.S.C. 5323(g)(1)(A)(iv). 
Protected activity also includes any lawful act done by a whistleblower 
in initiating, testifying in, or assisting in any investigation or 
judicial or administrative action of the Department of the Treasury or 
the Department of Justice based upon or related to such information. 31 
U.S.C. 5323(g)(1)(B).
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    \1\ In addition to the AMLA anti-retaliation provisions, 31 
U.S.C. 5323 establishes a whistleblower award program administered 
by the Department of the Treasury. That award program is not a 
subject of this rulemaking.
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    The information must relate to violations of certain enumerated 
statutes, including violations of 31 U.S.C. chapter 53, subchapter II 
(31 U.S.C. 5311-5336), chapter 35 or section 4305 or 4312 of title 50, 
U.S.C., or the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 
1901 et seq.), or conspiracies to violate the aforementioned 
provisions. 31 U.S.C. 5323(a)(5) (as amended). 31 U.S.C. chapter 53, 
subchapter II is part of the Bank Secrecy Act (BSA). The legislative 
framework generally referred to as the BSA consists of the Currency and 
Foreign Transactions Reporting Act of 1970, Title II of Public Law 91-
508 (October 26, 1970), as amended by the Uniting and Strengthening 
America by Providing Appropriate Tools Required to Intercept and 
Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56 
(October 26, 2001), and other legislation, including the AMLA.\2\ The 
Secretary of the Treasury is authorized to administer the BSA and to 
require financial institutions to keep records and file reports that 
``are highly useful in criminal, tax, or regulatory investigations or 
proceedings'' or in the conduct of ``intelligence or 
counterintelligence activities, including analysis, to protect against 
international terrorism''.\3\ Authority to implement, administer, and 
enforce compliance with the BSA and its implementing regulations has 
been delegated to the Director of the Financial Crimes Enforcement 
Network (FinCEN), a bureau of the Department of the Treasury.\4\ See 
https://www.fincen.gov/resources/statutes-and-regulations/bank-secrecy-act; https://bsaaml.ffiec.gov/. ``Chapter 35 of Title 50'' refers to 
the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701 
et seq., as amended, which authorizes the President to take certain 
actions, including, but not limited to, the regulation of transactions 
subject to U.S. jurisdiction involving property in which any foreign 
country or foreign national has an interest, to deal with any unusual 
or extraordinary threat, which has its source in whole or in 
substantial part outside the United States, to the national security, 
foreign policy, or economy of the United States, if the President has 
declared a national emergency with respect to such threat. 50 U.S.C. 
4305 and 4312 are provisions of the Trading with the Enemy Act (TWEA); 
section 4305 authorizes during time of war, among other measures, 
regulation of transactions subject to U.S. jurisdiction involving any 
property in which a foreign country or foreign national has an 
interest, while section 4312 authorizes seizure and holding of foreign-
owned property in trust during times of war. The Foreign Narcotics 
Kingpin Designation Act, 21 U.S.C. 1901 et seq., effectively applies 
the authorities in the IEEPA, 50 U.S.C. 1701 et seq., to significant 
foreign narcotics traffickers and their organizations operating 
worldwide. See https://ofac.treasury.gov/ (explaining the Office of 
Foreign Asset Control (OFAC) administration and enforcement of IEEPA, 
TWEA, and the Foreign Narcotics Kingpin Designation Act).
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    \2\ The BSA is codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1960, 
and 31 U.S.C. 5311-5314 and 5316-5336, and includes notes thereto, 
with implementing regulations at 31 CFR chapter X.
    \3\ 31 U.S.C. 5311(1).
    \4\ Treasury Order 180-01 (Jan. 14, 2020).
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    Providing information regarding any conduct that the whistleblower 
reasonably believes constitutes a violation of any law, rule, or 
regulation subject to the jurisdiction of the Department of the 
Treasury, or a violation of section 1956, 1957, or 1960 of title 18 (or 
any rule or regulation under any such provision) is also protected, if 
the information is provided to a person with supervisory authority over 
the whistleblower at the employer of the whistleblower; or to another 
individual working for the employer who the whistleblower reasonably 
believes has the authority to investigate, discover, or terminate the 
misconduct; or take any other action to address the misconduct. See 31 
U.S.C. 5323(g)(1)(C). 18 U.S.C. 1956 and 1957 are Federal criminal 
statutes which prohibit money laundering and related financial 
transactions, while 18 U.S.C. 1960 is a Federal criminal statute that 
prohibits unlicensed money transmitting businesses.
    While the AMLA anti-retaliation provision at 31 U.S.C. 5323(g) 
provides broad protection against retaliation in employment and post-
employment for whistleblowers, it also contains a statutory exclusion 
from protection under 31 U.S.C. 5323(g) for employees of federally 
insured depository institutions and credit unions covered by the anti-
retaliation provisions of two separate federal statutes. 31 U.S.C. 
5323(g)(6) (``This subsection [31 U.S.C. 5323(g)] shall not apply with 
respect to any employer that is subject to section

[[Page 3023]]

33 of the Federal Deposit Insurance Act (12 U.S.C. 23 1831j) or section 
213 or 214 of the Federal Credit Union Act (12 U.S.C. 1790b, 1790c)'').
    This interim final rule establishes procedures for the handling of 
retaliation complaints under the Act.

II. Summary of Statutory Procedures

    AMLA incorporates the rules, procedures, and burdens of proof set 
forth in the Wendell H. Ford Aviation Investment and Reform Act for the 
21st Century (AIR21), 49 U.S.C. 42121(b), with some exceptions. 31 
U.S.C. 5323(g)(3)(A). Under AMLA, a person who believes that they have 
been discharged or otherwise retaliated against in violation of the Act 
(complainant) may file a complaint with the Secretary of Labor 
(Secretary) within 90 days of the alleged retaliation. 31 U.S.C. 
5323(g)(3)(A), incorporating the requirements of 49 U.S.C. 42121(b). 
Upon receipt of the complaint, the Secretary must provide written 
notice to each person named in the complaint alleged to have violated 
the Act (respondent) and to the complainant's employer (which in most 
cases will be the 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. 49 U.S.C. 42121(b)(1). The Secretary must 
then conduct an investigation, within 60 days of receipt of the 
complaint, after affording the respondent an opportunity to submit a 
written response and to meet with the investigator to present 
statements from witnesses. 49 U.S.C. 42121(b)(2)(A).
    The Secretary may conduct an investigation only if the complainant 
has made a prima facie showing that the protected activity was a 
contributing factor in the adverse action alleged in the complaint and 
the respondent has not demonstrated, through clear and convincing 
evidence, that it would have taken the same adverse action in the 
absence of that activity. (See Sec.  1992.104 for a summary of the 
investigation process) OSHA interprets the prima facie case requirement 
as allowing the complainant to meet this burden through the information 
the complainant provides in the complaint as supplemented by interviews 
of the complainant.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
there is reasonable cause to believe that retaliation has occurred, the 
Secretary must notify the complainant and respondent of those findings, 
and issue a preliminary order providing relief including reinstatement 
with the same seniority status that the individual would have had, but 
for the retaliation, two times the amount of back pay otherwise owed to 
the individual, with interest; compensatory damages, which shall 
include compensation for litigation costs, expert witness fees, and 
reasonable attorney fees; and any other appropriate remedy with respect 
to the conduct that is the subject of the complaint or action, as 
applicable.
    The complainant and the respondent then have 30 days after the date 
of receipt of the Secretary's notification in which to file objections 
to the findings and/or preliminary order and request a hearing before 
an ALJ. The filing of objections will not stay any reinstatement order. 
However, under OSHA's regulations, the filing of objections will stay 
any other remedy in the preliminary order. If a hearing before an ALJ 
is not requested within 30 days, the preliminary order becomes final 
and is not subject to judicial review.
    If a hearing is held, the hearing must be conducted 
``expeditiously.'' 49 U.S.C. 42121(b)(2)(A). The Secretary then has 120 
days after the conclusion of any hearing to issue a final order, which 
may provide appropriate relief or deny the complaint. 49 U.S.C. 
42121(b)(3)(A). 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. Id. Where the 
Secretary has determined that a violation has occurred, the Secretary 
will order relief including reinstatement with the same seniority 
status that the individual would have had, but for the retaliation, two 
times the amount of back pay otherwise owed to the individual, with 
interest; compensatory damages, which shall include compensation for 
litigation costs, expert witness fees, and reasonable attorney fees; 
and any other appropriate remedy with respect to the conduct that is 
the subject of the complaint or action, as applicable. The Secretary 
also may award a prevailing employer reasonable attorney fees, not 
exceeding $1,000, if the Secretary finds that the complaint is 
frivolous or has been brought in bad faith. Within 60 days of the 
issuance of the final order, any person adversely affected or aggrieved 
by the Secretary's final order may file an appeal with the United 
States Court of Appeals for the circuit in which the violation 
allegedly occurred or the circuit where the complainant resided on the 
date of the violation. 49 U.S.C. 42121(b)(4).
    The Act permits the whistleblower to bring an AMLA retaliation 
claim against the employer in the appropriate United States district 
court if the Secretary has not issued a final decision within 180 days 
after the filing of the complaint and there is no showing that the 
delay is due to the bad faith of the complainant. The court will have 
jurisdiction over the action without regard to the amount in 
controversy and either party is entitled to request a trial by jury.
    The Act also states that the rights and remedies provided in the 
AMLA anti-retaliation provision may not be waived by any agreement, 
policy form, or condition of employment, including by a predispute 
arbitration agreement. No predispute arbitration agreement is valid or 
enforceable, to the extent that the agreement requires arbitration of a 
dispute arising under the AMLA anti-retaliation provision. 31 U.S.C. 
5323(j). Finally, under the Act, nothing in the AMLA anti-retaliation 
provision shall be deemed to diminish the rights, privileges, or 
remedies of any whistleblower under any Federal or State law, or under 
any collective bargaining agreement. 31 U.S.C. 5323(g)(5).

III. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of the Act. Responsibility for receiving and 
investigating complaints under the Act has been delegated to the 
Assistant Secretary for Occupational Safety and Health (Assistant 
Secretary) by Secretary of Labor's Order No. 08-2020 (May 15, 2020), 85 
FR 58393 (September 18, 2020). 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. See 
Secretary of Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 
(Mar. 6, 2020) (Delegation of Authority and Assignment of 
Responsibility to the Administrative Review Board).

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

Section 1992.100 Purpose and Scope
    This section describes the purpose of the regulations in this 
interim final rule implementing the anti-retaliation provisions of AMLA 
and provides an overview of the procedures covered by these 
regulations.

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Section 1992.101 Definitions
    This section includes the general definitions of certain terms used 
in this rule. In particular, 31 U.S.C. 5323(a)(5) defines the statutory 
term ``whistleblower.'' 31 U.S.C. 5323(a)(5)(A) provides that the term 
``whistleblower'' means ``any individual who provides, or 2 or more 
individuals acting jointly who provide, information relating to a 
violation of this subchapter, chapter 35 or section 4305 or 4312 of 
title 50, the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 
et seq.),'' and ``for conspiracies to violate the aforementioned 
provisions to the employer of the individual or individuals, including 
as part of the job duties of the individual or individuals, or to the 
Secretary or the Attorney General.'' 31 U.S.C. 5323(a)(5)(B) provides a 
special rule that expands the definition of the term ``whistleblower'' 
solely for purposes of the anti-retaliation provisions at 31 U.S.C. 
5323(g)(1) to include ``any individual who takes, or 2 or more 
individuals acting jointly who take, an action described in subsection 
(g)(1)(A).'' Thus, a whistleblower who is protected against retaliation 
under AMLA includes any individual who meets the criteria in 31 U.S.C. 
5323(a)(5)(A) and/or 31 U.S.C. 5323(a)(5)(B). To reflect the provisions 
that define a ``whistleblower'' that is protected from retaliation, 
OSHA has defined a ``whistleblower'' in these rules as ``any 
individual, or two or more individuals acting jointly, who take any of 
the actions described in Sec.  1992.102(b).'' Section 1992.102(b) in 
turn, as described below, encompasses all of the activities listed in 
31 U.S.C. 5323(a)(5) and (g)(1). Consistent with the broad language of 
the statutory definition of ``whistleblower,'' which refers to ``any 
individual'' or two or more individuals acting jointly (31 U.S.C. 
5323(a)(5)), the approach that OSHA has taken in defining covered 
employees under other whistleblower protection provisions, and 
applicable ARB case law, the interim final rule includes in the 
definition of ``whistleblower'' the explanation that ``[a] 
whistleblower includes an individual presently or formerly working for 
an employer, an individual applying to work for an employer, or an 
individual whose employment could be affected by an employer.'' See, 
e.g., 29 CFR 1979.101 (AIR21 definition of employee); 29 CFR 
1980.101(g) (Sarbanes-Oxley Act of 2002 (SOX) definition of employee). 
This section also provides that the term ``FinCEN'' means the Financial 
Crimes Enforcement Network, a bureau of the Department of the Treasury. 
As explained below, under these rules FinCEN will receive copies of 
complaints and OSHA findings in AMLA cases and the Department of the 
Treasury may participate in AMLA proceedings pending before an ALJ or 
the ARB.
Section 1992.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under the 
Act and the conduct that is prohibited in response to any protected 
activities. The Act prohibits an employer from directly or indirectly 
discharging, demoting, suspending, threatening, blacklisting, harassing 
or in any other manner discriminating against a whistleblower in the 
terms and conditions of employment or post-employment because of any 
lawful act done by the whistleblower to engage in protected activity. 
Protected activity under AMLA includes any lawful act done by the 
whistleblower in providing certain information to the Secretary of the 
Treasury or the Attorney General, a Federal regulatory or law 
enforcement agency, a Member of Congress or a Committee of Congress, or 
the employer. The employer includes a person with supervisory authority 
over the whistleblower or such other person working for the employer 
who has authority to investigate, discover, or terminate misconduct. 
The information must relate to a violation of 31 U.S.C. chapter 53, 
subchapter II (31 U.S.C. 5311-5336, requiring records and reports on 
monetary instruments transactions); 50 U.S.C. chapter 35 (50 U.S.C. 
1701 et seq., as amended (IEEPA)); 50 U.S.C. 4305 or 4312 (provisions 
of the Trading with the Enemy Act); 21 U.S.C. 1901 et seq. (the Foreign 
Narcotics Kingpin Designation Act), or conspiracies to violate any of 
the aforementioned provisions. 31 U.S.C. 5323(a)(5), (g)(1)(A).
    Protected activity also includes any lawful act done by the 
whistleblower in initiating, testifying in, or assisting in any 
investigation or judicial or administrative action of the Department of 
the Treasury or the Department of Justice based upon or related to the 
information described above. 31 U.S.C. 5323(g)(1)(B).
    Finally, protected activity also includes any lawful act done by 
the whistleblower in providing information regarding any conduct that 
the whistleblower reasonably believes constitutes a violation of any 
law, rule, or regulation subject to the jurisdiction of the Department 
of the Treasury, or a violation of section 1956, 1957, or 1960 of title 
18 (or any rule or regulation under any such provision) to a person 
with supervisory authority over the whistleblower at the employer of 
the whistleblower; or another individual working for the employer who 
the whistleblower reasonably believes has the authority to investigate, 
discover, or terminate the misconduct; or take any other action to 
address the misconduct. 31 U.S.C. 5323(g)(1)(C).
    However, in keeping with the statutory exclusion for employees of 
federally insured depository institutions and credit unions at 31 
U.S.C. 5323(g)(6), which applies only to the anti-retaliation 
provisions in 31 U.S.C. 5323(g), this section (29 CFR 1992.102) does 
not apply with respect to any employer that is subject to section 33 of 
the Federal Deposit Insurance Act (12 U.S.C. 1831j) or section 213 or 
214 of the Federal Credit Union Act (12 U.S.C. 1790b, 1790c). 31 U.S.C. 
5323(g)(6), which provide separate protections from retaliation for 
certain categories of whistleblowing for those employees.
    To engage in protected activity under this section, the 
whistleblower need not show that the conduct complained of is an actual 
violation of one of the provisions of law listed in the statute. The 
statute protects the provision of information relating to a violation 
of a relevant law or a conspiracy to violate a relevant law (31 U.S.C. 
5323(a)(5)) and information regarding conduct that the employee 
reasonably believes constitutes a violation of a relevant law (31 
U.S.C. 5323(g)(1)(C)). In providing broad protection for such 
information, the statutory language reflects Congress's desire to 
encourage reporting not only to expose but also to prevent money 
laundering and related violations of law. Cf. Sylvester v. Parexel 
Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *18 (ARB May 25, 2011) 
(explaining with respect to an analogous SOX whistleblower provision 
that ``[t]he purpose of Section 806, and the SOX in general, is to 
protect and encourage greater disclosure. Section 806 exists not only 
to expose existing fraud, i.e., conduct satisfying the elements of a 
fraud claim, but also to prevent potential fraud in its earliest 
stages.''). Indeed, case law under analogous anti-retaliation 
provisions, such as SOX, makes clear that a report based on a 
whistleblower's reasonable but mistaken belief that reported conduct 
could lead to a violation is protected. See Van Asdale v. Int'l Game 
Techs., 577 F.3d 989, 1001 (9th Cir. 2009); Allen v. Admin. Review Bd., 
514 F.3d 468, 477 (5th Cir. 2008).
    To have a reasonable belief that there is a violation of relevant 
law, the

[[Page 3025]]

whistleblower must subjectively believe that the conduct is a violation 
and that belief must be objectively reasonable. See, e.g., Rhinehimer 
v. U.S. Bancorp. Invs., Inc., 787 F.3d 797, 811 (6th Cir. 2015) 
(discussing the reasonable belief standard under analogous language in 
the SOX whistleblower provision, 18 U.S.C. 1514A) (citations omitted); 
Harp v. Charter Commc'ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009) 
(agreeing with First, Fourth, Fifth, and Ninth Circuits that 
determining reasonable belief under the SOX whistleblower provision 
requires analysis of the complainant's subjective belief and the 
objective reasonableness of that belief); Sylvester, 2011 WL 2165854, 
at *11-12 (same). The requirement that the whistleblower have a 
subjective, good faith belief is satisfied so long as the whistleblower 
actually believed that the conduct at issue violated the relevant law 
or regulation. See Sylvester, 2011 WL 2165854, at *11-12 (citing Harp, 
558 F.3d at 723; Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir. 
2009)). The objective reasonableness of a whistleblower's belief is 
typically determined ``based on the knowledge available to a reasonable 
person in the same factual circumstances with the same training and 
experience as the aggrieved employee.'' Harp, 558 F.3d at 723 (quoting 
Allen, 514 F.3d at 477).
Section 1992.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation 
complaint under the AMLA anti-retaliation provisions. To be timely, a 
complaint must be filed within 90 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 made and communicated to the complainant. In other words, the 
limitations period commences once the individual is aware or reasonably 
should be aware of the employer's decision to take an adverse action. 
EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 
2001). The time for filing a complaint under AMLA may be tolled or 
equitably modified for reasons warranted by applicable case law. For 
example, OSHA may consider the time for filing a complaint to be tolled 
if a complainant mistakenly files a complaint with an agency other than 
OSHA within 90 days after an alleged adverse action. Xanthopoulos v. 
U.S. Dep't of Labor, 991 F.3d 823, 832 (7th Cir. 2021) (affirming ARB's 
refusal to toll the statute of limitations under SOX and explaining the 
limited circumstances in which tolling is appropriate for a timely 
filing in the wrong forum); see also Martin v. Paragon Foods, ARB No. 
2022-0058 (June 8, 2023) (explaining the distinction between equitable 
estoppel and tolling). Retaliation complaints filed under this section 
need not be in any particular form. They may be either oral or in 
writing. If the complainant is unable to file the complaint in English, 
OSHA will accept the complaint in any language. With the consent of the 
whistleblower, complaints may be filed by any person on the 
whistleblower's behalf.
Section 1992.104 Investigation
    This section describes the procedures that apply to OSHA's 
investigation of AMLA retaliation complaints. Paragraph (a) of this 
section outlines the procedures for notifying the respondent, the 
employer (if different from the respondent), and FinCEN of the 
complaint and notifying the respondent of the rights under these 
regulations. Paragraph (b) describes the procedures for the respondent 
to submit the response to the complaint. Paragraph (c) specifies that 
OSHA will request that the parties provide each other with copies of 
their submissions to OSHA during the investigation and that, if a party 
does not provide such copies, OSHA generally will do so at a time 
permitting the other party an opportunity to respond to those 
submissions. Before providing such materials, OSHA will redact them 
consistent with the Privacy Act of 1974, 5 U.S.C. 552a and other 
applicable confidentiality laws. Paragraph (d) of this section 
discusses confidentiality of information provided during 
investigations.
    Paragraph (e) of this section sets forth the applicable burdens of 
proof. AMLA incorporates the burdens of proof in AIR21. 31 U.S.C. 
5323(g)(3)(A), incorporating the burdens of proof in 49 U.S.C. 
42121(b). Thus, in order for OSHA to conduct an investigation, AMLA 
requires that a complainant make an initial prima facie showing that a 
protected activity was ``a contributing factor'' in the adverse action 
alleged in the complaint, i.e., that the protected activity, alone or 
in combination with other factors, affected in some way the outcome of 
the employer's decision. The complainant will be considered to have met 
the required burden for OSHA to commence an investigation if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing. The complainant's 
burden at this stage may be satisfied, for example, if the complainant 
shows that the adverse action took place shortly after the protected 
activity.
    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, as amended, (ERA) which is the same as that under AMLA, 
serves a ``gatekeeping function'' intended to ``stem[] frivolous 
complaints''). Even in cases where the complainant successfully makes a 
prima facie showing, the investigation must be discontinued if the 
employer demonstrates, by clear and convincing evidence, that it would 
have taken the same adverse action in the absence of the protected 
activity. Thus, OSHA must dismiss the complaint 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 
alleged adverse action; or (2) the employer rebuts that showing by 
clear and convincing evidence that it would have taken the same adverse 
action absent the protected activity.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statute requires OSHA to determine whether there is 
reasonable cause to believe that protected activity was a contributing 
factor in the alleged adverse action. A contributing factor is ``any 
factor which, alone or in connection with other factors, tends to 
affect in any way the outcome of the decision.'' Wiest v. Tyco Elec. 
Corp., 812 F.3d 319, 330 (3d Cir. 2016) (discussing ``contributing 
factor standard'' under SOX); Feldman v. Law Enforcement Assocs. Corp., 
752 F.3d 339, 348 (4th Cir. 2014) (same); Lockheed Martin Corp. v. 
Admin. Review Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (same). A 
conclusion that protected activity was a contributing factor in an 
adverse action can be based on direct evidence or circumstantial 
evidence ``such as the temporal proximity between the protected 
activity and the adverse action, indications of pretext such as 
inconsistent application of policies and shifting explanations, 
antagonism or hostility toward protected activity, the relation between 
the discipline and the protected activity, and the presence [or 
absence] of intervening events that independently justify'' the adverse 
action. Hess v. Union Pac. R.R. Co., 898 F.3d 852, 858 (8th Cir. 2018) 
(quoted source omitted) (discussing the

[[Page 3026]]

contributing factor standard under the Federal Railroad Safety Act). 
The evidence must show that the protected activity was a contributing 
factor in the unfavorable personnel action but the whistleblower does 
not need to prove that his or her employer acted with ``retaliatory 
intent.'' Murray v. UBS Securities, LLC, 601 U.S. 23, 39 (2024).
    If OSHA finds reasonable cause to believe that the alleged 
protected activity was a contributing factor in the adverse action, 
OSHA may not order relief if the employer demonstrates by ``clear and 
convincing evidence'' that it would have taken the same action in the 
absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv). 
The ``clear and convincing evidence'' standard is a higher burden of 
proof than a ``preponderance of the evidence'' standard. Clear and 
convincing evidence is evidence indicating that the thing to be proved 
is highly probable or reasonably certain. Clarke v. Navajo Express, ARB 
No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011).
    Paragraph (f) describes the procedures OSHA will follow prior to 
the issuance of findings and a preliminary order when OSHA has 
reasonable cause to believe that a violation has occurred and 
reinstatement is required. Their purpose is to ensure compliance with 
the Due Process Clause of the Fifth Amendment, as interpreted by the 
Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) 
(requiring OSHA to give a Surface Transportation Assistance Act 
respondent the opportunity to review the substance of the evidence and 
respond prior to ordering preliminary reinstatement).
Section 1992.105 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 reinstatement 
with the same seniority status that the complainant would have had, but 
for the retaliation; double back pay with interest; and compensatory 
damages, including litigation costs, expert witness fees, and 
reasonable attorney fees, as well as any other appropriate remedy for 
the retaliation, as applicable. The findings and, where appropriate, 
preliminary order, will also advise the parties of their right to file 
objections to the findings of the Assistant Secretary and to request a 
hearing. The findings and, where appropriate, the preliminary order, 
will also advise the respondent of the right to request an award of 
attorney fees not exceeding a total of $1,000 from the ALJ, regardless 
of whether the respondent has filed objections, if the respondent 
alleges that the complaint was frivolous or brought in bad faith. If no 
objections are filed within 30 days of receipt of the findings, the 
findings and any preliminary order of the Assistant Secretary become 
the final decision and order of the Secretary. If objections are timely 
filed, any order of preliminary reinstatement will take effect, but the 
remaining provisions of the order will not take effect until 
administrative proceedings are completed.
    The remedies provided under AMLA aim to make the complainant whole 
by restoring the complainant to the position that the complainant would 
have occupied absent the retaliation and to counteract the chilling 
effect of retaliation on protected whistleblowing in the complainant's 
workplace. The back pay, benefits, and other remedies appropriate in 
each case will depend on the individual facts of the case and the 
evidence submitted, and the complainant's interim earnings must be 
taken into account in determining the appropriate back pay award. When 
there is evidence to determine these figures, a back pay award under 
AMLA might include, for example, amounts that the complainant would 
have earned in commissions, bonuses, overtime, or raises had the 
complainant not been discharged in retaliation for engaging in 
protected activity under AMLA. Lost benefits may also be included in a 
back pay award under AMLA when there is evidence to support an award 
for lost benefits. Such benefits might include amounts that the 
employer would have contributed to a 401(k) plan, insurance plan, 
profit-sharing plan, or retirement plan on the complainant's behalf had 
the complainant not been discharged in retaliation for engaging in 
protected activity under AMLA. Other damages, including non-pecuniary 
damages, such as damages for emotional distress due to the retaliation, 
are also available under AMLA. See, e.g., Jones v. Southpeak 
Interactive Corp. of Del., 777 F.3d 658, 670-71 (4th Cir. 2015) 
(holding that emotional distress damages are available under an 
identical remedial provision in SOX); Halliburton, Inc. v. Admin. 
Review Bd., 771 F.3d 254, 264-66 (5th Cir. 2014) (same). Consistent 
with the rules under other whistleblower statutes enforced by the 
Department of Labor, in ordering interest on any back pay award under 
AMLA, OSHA will compute interest due by compounding daily the Internal 
Revenue Service interest rate for the underpayment of taxes, which 
under 26 U.S.C. 6621 generally is the Federal short-term rate plus 
three percentage points, against back pay. See, e.g., 29 CFR 
1980.105(a) (SOX); 29 CFR 1982.105(a) (Federal Railroad Safety Act 
(FRSA)); 29 CFR 1988.105(a) (Moving Ahead for Progress in the 21st 
Century Act (MAP-21)).
    Consistent with the rules governing other Department of Labor-
enforced whistleblower protection statutes, where appropriate, in 
ordering back pay, OSHA will require the respondent to submit the 
appropriate documentation to the Social Security Administration (SSA) 
allocating the back pay to the appropriate periods. See, e.g., 29 CFR 
1980.105(a) (SOX); 29 CFR 1982.105(a) (FRSA); 29 CFR 1988.105(a) (MAP-
21)).
    The statute permits OSHA to preliminarily reinstate whistleblowers 
to their positions if OSHA finds reasonable cause to believe that they 
were discharged in violation of AMLA. See 49 U.S.C. 42121(b)(2)(A). 
When a violation is found, the norm is for OSHA to order immediate 
preliminary reinstatement. In appropriate circumstances, in lieu of 
preliminary reinstatement, OSHA may order that the complainant receive 
the same pay and benefits that the complainant received prior to 
termination but not actually return to work. Such ``economic 
reinstatement'' is akin to an order of front pay and is sometimes 
employed in cases arising under section 105(c) of the Federal Mine 
Safety and Health Act of 1977, which protects miners from retaliation. 
30 U.S.C. 815(c); see, e.g., Sec'y of Labor, MSHA v. North Fork Coal 
Corp., 33 FMSHRC 589, 2011 WL 1455831, at *4 (FMSHRC Mar. 25, 2011) 
(explaining economic reinstatement in lieu of temporary reinstatement 
in the context of section 105(c)). Front pay has been recognized as an 
appropriate remedy in cases under the whistleblower statutes enforced 
by OSHA in circumstances where reinstatement would not be appropriate. 
See, e.g., Deltek, Inc. v. Dep't of Labor, Admin. Rev Bd., 649 Fed. 
App'x. 320, 333 (4th Cir. 2016) (affirming award of front pay in SOX 
case due to ``pronounced animosity between the parties;'' explaining 
that ``front pay `is designed to place the complainant in the identical 
financial position' that she would have occupied had she remained 
employed or been reinstated.''); Continental Airlines, Inc. v. Admin. 
Review Bd., 638 Fed. App'x. 283, 289-90, 2016 WL 97461, at *4 (5th Cir. 
2016)

[[Page 3027]]

(affirming front pay award under AIR21, and explaining that ``front-pay 
is available when reinstatement is not possible''), aff'g Luder v. 
Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB Jan. 
31, 2012); see also Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-
00049, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that 
while reinstatement is the ``presumptive remedy'' under SOX 
whistleblower provision, front pay may be awarded as a substitute when 
reinstatement is inappropriate), aff'd Lockheed Martin Corp. v. Admin. 
Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (noting availability 
of all relief necessary to make the employee whole in SOX case but 
remanding for DOL to quantify remedies); Indiana Michigan Power Co. v. 
U.S. Dept. of Labor, 278 Fed. Appx. 597, 606 (6th Cir. 2008) (affirming 
front pay award under ERA). Neither an employer nor a whistleblower has 
a statutory right to choose economic reinstatement. Rather, economic 
reinstatement is designed to accommodate situations in which evidence 
establishes to OSHA's satisfaction that immediate reinstatement is 
inadvisable for some reason, notwithstanding the employer's retaliatory 
discharge of the whistleblower.

Subpart B--Litigation

Section 1992.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing
    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, in accordance with 29 CFR part 18, as applicable, 
within 30 days of the receipt of the findings. The date of the 
postmark, facsimile transmittal, or electronic 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 on 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). OSHA and the Associate Solicitor for Fair Labor Standards may 
specify the means, including electronic means, to serve them with 
copies of objections to OSHA's findings.
    The timely filing of objections stays all provisions of the 
preliminary order, except for the portion requiring reinstatement. A 
respondent may file a motion to stay the Assistant Secretary's 
preliminary order of reinstatement with the Office of Administrative 
Law Judges. However, such a motion will be granted only based on 
exceptional circumstances. The Secretary believes that a stay of the 
Assistant Secretary's preliminary order of reinstatement under AMLA 
would be appropriate only where the respondent can establish the 
necessary criteria for equitable injunctive relief, i.e., irreparable 
injury, likelihood of success on the merits, a balancing of possible 
harms to the parties, and that the public interest favors a stay. If no 
timely objection to the Assistant Secretary's findings and/or 
preliminary order is filed, then the Assistant Secretary's findings 
and/or preliminary order become the final decision of the Secretary not 
subject to judicial review.
Section 1992.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
as set forth in 29 CFR part 18, subpart A. This section provides that 
the hearing is to commence expeditiously, except upon a showing of good 
cause or unless otherwise agreed to by the parties. Hearings will be 
conducted de novo, on the record. As noted in this section, formal 
rules of evidence will not apply, but rules or principles designed to 
assure production of the most probative evidence will be applied. The 
ALJ may exclude evidence that is immaterial, irrelevant, or unduly 
repetitious.
Section 1992.108 Role of Federal Agencies
    The Assistant Secretary may participate as a party or amicus curiae 
at any time in the administrative proceedings under AMLA. For example, 
the Assistant Secretary may exercise 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 the ARB. Although OSHA 
anticipates that ordinarily the Assistant Secretary will not 
participate, the Assistant Secretary may choose to do so in appropriate 
cases, such as cases involving important or novel legal issues, 
multiple whistleblowers, alleged violations that appear egregious, or 
where the interests of justice might require participation by the 
Assistant Secretary. The Department of the Treasury, if interested in a 
proceeding, also may participate as amicus curiae at any time in the 
proceedings.
Section 1992.109 Decisions and Orders of the Administrative Law Judge
    This section sets forth the requirements for the content of the 
decisions and orders of the ALJ, and includes the standard for finding 
a violation under AMLA. Specifically, because AMLA incorporates the 
burdens of proof in AIR21, 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 49 U.S.C. 
42121(b)(2)(B)(iii); see, e.g., Allen, 514 F.3d at 475 n.1 (``The term 
`demonstrates' [under identical burden-shifting scheme in the SOX 
whistleblower provision] means to prove by a preponderance of the 
evidence.''). If the whistleblower demonstrates that the alleged 
protected activity was a contributing factor in the adverse action, 
then the employer must demonstrate by ``clear and convincing evidence'' 
that it would have taken the same action in the absence of the 
protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv).
    Paragraph (c) of this section further provides that OSHA's 
determination to dismiss the complaint without an investigation or 
without a complete investigation under Sec.  1992.104 is not subject to 
review. Thus, Sec.  1992.109(c) clarifies that OSHA's determinations on 
whether to proceed with an investigation under AMLA and whether to make 
particular investigative findings are discretionary decisions not 
subject to review by the ALJ. The ALJ hears cases de novo and, 
therefore, as a general matter, may not remand cases to OSHA to conduct 
an investigation or make further factual findings.
    Paragraph (d) notes the remedies that the ALJ may order under AMLA 
and, as discussed under Sec.  1992.105 above, provides that interest on 
any back pay award will be calculated using the interest rate 
applicable to underpayment of taxes under 26 U.S.C. 6621 and will be 
compounded daily, and that the respondent will be required to submit 
appropriate documentation to the SSA allocating any back pay award to 
the

[[Page 3028]]

appropriate periods. Paragraph (e) requires that the ALJ's decision be 
served on all parties to the proceeding, OSHA, and the U.S. Department 
of Labor's Associate Solicitor for Fair Labor Standards. OSHA and the 
Associate Solicitor for Fair Labor Standards may specify the means, 
including electronic means, for service of the ALJ's decision on them. 
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 
30 days after the date of the decision unless a timely petition for 
review has been filed with the ARB. If a timely petition for review is 
not filed with the ARB, the decision of the ALJ becomes the final 
decision of the Secretary and is not subject to judicial review.
Section 1992.110 Decisions and Orders of the Administrative Review 
Board
    Upon the issuance of the ALJ's decision, the parties have 30 days 
within which to petition the ARB for review of that decision. The date 
of the postmark or electronic 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 only accepted at the discretion of the ARB. The parties should 
identify with some specificity in their petitions for review the legal 
conclusions or orders to which they object, or the objections may be 
deemed waived. Simply attaching the order objected to will not suffice 
for a petition for review. 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, while questions of 
law will be reviewed de novo. Sylvester, 2011 WL 2165854, at *6.
    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 AMLA (which otherwise would be effective 
immediately), while the ARB reviews the order. The Secretary believes 
that a stay of an ALJ's preliminary order of reinstatement under AMLA 
would be appropriate only where the respondent can establish the 
necessary criteria for equitable injunctive relief, i.e., irreparable 
injury, likelihood of success on the merits, a balancing of possible 
harms to the parties, and that the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it 
will issue an order providing relief. The order will require, where 
appropriate: reinstatement with the same seniority status that the 
complainant would have had, but for the retaliation; double back pay 
with interest; and compensatory damages, including litigation costs, 
expert witness fees, and reasonable attorney fees, as well as any other 
appropriate remedy for the retaliation, as applicable. Interest on any 
back pay award will be calculated using the interest rate applicable to 
underpayment of taxes pursuant to 26 U.S.C. 6621 and will be compounded 
daily, and the respondent will be required to submit appropriate 
documentation to the SSA allocating any back pay award to the 
appropriate periods. If the ARB determines that the respondent has not 
violated the law, an order will be issued denying the complaint. If, 
upon the request of the respondent, the ARB determines that a complaint 
was frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney fee, not exceeding a total of $1,000.
    The decision of the ARB is subject to discretionary review by the 
Secretary of Labor. See Secretary of Labor's Order, 01-2020 (Feb. 21, 
2020), 85 FR 13024-01 (Mar. 6, 2020). As provided in that Secretary's 
Order, a party may petition the ARB to refer a decision to the 
Secretary for further review, after which the Secretary may accept 
review, decline review, or take no action. If no such petition is 
filed, the ARB's decision shall become the final action of the 
Department 28 calendar days after the date on which the decision was 
issued. If such a petition is filed and the ARB declines to refer the 
case to the Secretary, the ARB's decision shall become final 28 
calendar days after the date on which the petition for review was 
filed. If the ARB refers a decision to the Secretary for further 
review, and the Secretary takes no action in response to the ARB's 
referral, or declines to accept the case for review, the ARB's decision 
shall become final either 28 calendar days from the date of the 
referral, or on the date on which the Secretary declines review, 
whichever comes first.
    In the alternative, under the Secretary's Order, at any point 
during the first 28 calendar days after the date on which an ARB 
decision was issued, the Secretary may direct the ARB to refer the 
decision to the Secretary for review. If the Secretary directs the ARB 
to refer a case to the Secretary or notifies the parties that the case 
has been accepted for review, the ARB's decision shall not become the 
final action of the Department and shall have no legal force or effect, 
unless and until the Secretary adopts the ARB's decision.
    Under the Secretary's Order, any final decision made by the 
Secretary shall be made solely based on the administrative record, the 
petition and briefs filed with the ARB, and any amicus briefs permitted 
by the Secretary. The decision shall be in writing and shall be 
transmitted to the ARB, which will publish the decision and transmit it 
to the parties to the case. The Secretary's decision shall constitute 
final action by the Department and shall serve as binding precedent in 
all Department proceedings involving the same issue or issues.

Subpart C--Miscellaneous Provisions

Section 1992.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement
    This section provides the procedures and time periods for 
withdrawal of complaints, withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and withdrawal of objections to 
findings and/or orders. It permits complainants to withdraw their 
complaints orally, and provides that, in such circumstances, OSHA will 
confirm a complainant's desire to withdraw in writing. It also provides 
for approval of settlements at the investigative and adjudicatory 
stages of the case.
Section 1992.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, the ARB or the ALJ to submit the record of 
proceedings to the appropriate court pursuant to the rules of such 
court.
Section 1992.113 Judicial Enforcement
    This section describes the ability of the Secretary, the 
complainant, and the respondent under AMLA to obtain judicial 
enforcement of orders and terms of settlement agreements. Through the 
incorporation of the rules and procedures in AIR21, AMLA authorizes

[[Page 3029]]

district courts to enforce orders issued by the Secretary under the 
provisions of 49 U.S.C. 42121(b). Specifically, 49 U.S.C. 42121(b)(5) 
provides that ``[w]henever any person has failed to comply with an 
order issued under paragraph (3), the Secretary of Labor may file a 
civil action in the United States district court for the district in 
which the violation was found to occur to enforce such order. In 
actions brought under this paragraph, the district courts shall have 
jurisdiction to grant all appropriate relief, including injunctive 
relief and compensatory damages.'' 49 U.S.C. 42121(b)(5). Similarly, 49 
U.S.C. 42121(b)(6) provides that a person on whose behalf an order was 
issued ``may commence a civil action against the person to whom such 
order was issued to required compliance with such order'' in the 
appropriate United States district court, which will have jurisdiction 
without regard to the amount in controversy or the citizenship of the 
parties, to enforce such order. The Secretary views these provisions as 
permitting district courts to enforce both final orders of the 
Secretary and preliminary orders of reinstatement for the same reasons 
that the Secretary has expressed with regard to SOX, which incorporates 
the rules and procedures of AIR21 using identical language to that in 
AMLA. See Procedures for the Handling of Retaliation Complaints Under 
section 806 of the Sarbanes-Oxley Act of 2002, as Amended, Final Rule, 
80 FR 11865-02, 11877 (Mar. 5, 2015) (discussing district court 
enforcement of preliminary reinstatement orders under SOX); see also 
Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis 
v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. 
Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); 
but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 
2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. 
Va. 2006), decision vacated, appeal dismissed, No. 06-2295 (4th Cir. 
Feb. 20, 2008)).
Section 1992.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth AMLA's provisions allowing a complainant to 
bring an original de novo civil action in district court, alleging the 
same allegations contained in the complaint filed with OSHA, if there 
has been no final decision of the Secretary within 180 days after the 
date of the filing of the complaint. See 31 U.S.C. 5323(g)(2)(B). This 
section also incorporates the statutory provision that allows for a 
jury trial at the request of either party in a district court action. 
See 31 U.S.C. 5323(g)(3)(B). A civil action may not be brought under 
AMLA more than 6 years after the date on which the violation occurs or 
more than 3 years after the date on which when facts material to the 
right of action are known, or reasonably should have been known, by the 
whistleblower alleging a violation. See 31 U.S.C. 5323(g)(3)(B)(ii).
    This section also requires that, within seven days after filing a 
complaint in district court, a complainant must provide a file-stamped 
copy of the complaint to OSHA, the ALJ, or the ARB, depending on where 
the proceeding is pending. If the ARB has issued a decision that has 
not yet become final under Secretary of Labor's Order 01-2020, the case 
is regarded as pending before the ARB for purposes of this section and 
a copy of any district court complaint should be sent to the ARB. A 
copy of the district court complaint also must be provided to the OSHA 
official who issued the findings and/or preliminary order, the 
Assistant Secretary, and the U.S. Department of Labor's Associate 
Solicitor for Fair Labor Standards. This provision is necessary to 
notify the agency that the complainant has opted to file a complaint in 
district court. This provision is not a substitute for the 
complainant's compliance with the requirements for service of process 
of the district court complaint contained in the Federal Rules of Civil 
Procedure and the local rules of the district court where the complaint 
is filed.
    Finally, it should be noted that although a complainant may file an 
action in district court if the Secretary has not issued a final 
decision within 180 days of the filing of the complaint with OSHA, it 
is the Department of Labor's position that complainants may not 
initiate an action in federal court after the Secretary issues a final 
decision, even if the date of the final decision is more than 180 days 
after the filing of the complaint. Thus, for example, after the ARB has 
issued a decision that has become final denying a whistleblower 
complaint, the complainant no longer may file an action for de novo 
review in federal district court. See Soo Line R.R., Inc. v. Admin. 
Review Bd., 990 F.3d 596, 598 n.1 (8th Cir. 2021). The purpose of the 
``kick-out'' provision is to aid the complainant in receiving a prompt 
decision. That goal is not implicated in a situation where the 
complainant already has received a final decision from the Secretary. 
In addition, permitting the complainant to file a new case in district 
court in such circumstances could conflict with the parties' rights to 
seek judicial review of the Secretary's final decision in the court of 
appeals. See 49 U.S.C. 42121(b)(4)(B) (providing that an order with 
respect to which review could have been obtained in the court of 
appeals shall not be subject to judicial review in any criminal or 
other civil proceeding).
Section 1992.115 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 AMLA requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, Sec.  1992.103) which was previously reviewed as a statutory 
requirement of AMLA and approved for use by the Office of Management 
and Budget (OMB), as part of the Information Collection Request (ICR) 
assigned OMB control number 1218-0236 under the provisions of the 
Paperwork Reduction Act of 1995 (PRA). See Public Law 104-13, 109 Stat. 
163 (1995). A non-material change has been submitted to OMB to include 
the regulatory citation.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of section 553 of the 
Administrative Procedure Act (APA) do not apply ``to interpretative 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice.'' 5 U.S.C. 553(b)(A). This interim final rule 
is a rule of agency procedure, practice, and interpretation within the 
meaning of that section, because it provides the procedures for the 
handling of retaliation complaints. Therefore, publication in the 
Federal Register of a notice of proposed rulemaking and request for 
comments are not required for this rule. Although this interim final 
rule is a procedural and interpretative rule not subject to the notice 
and comment procedures of the APA, OSHA is providing persons interested 
in this interim final rule 60 days to submit comments. A final rule 
will be published after OSHA receives and reviews the public's 
comments.
    Furthermore, because this interim final 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. 5 U.S.C. 553(d)(2). OSHA also finds 
good cause to provide

[[Page 3030]]

an immediate effective date for this interim final rule. It is in the 
public interest that the rule be effective immediately so that parties 
may know what procedures are applicable to pending cases.

VI. Executive Orders 12866: Regulatory Planning and Review, Executive 
Order 14094: Modernizing Regulatory Review, and Executive Order 13563: 
Improving Regulation and Regulatory Review; Unfunded Mandates Reform 
Act of 1995; Executive Order 13132 (Federalism)

    The Office of Information and Regulatory Affairs has concluded that 
this rule is not a ``significant regulatory action'' within the meaning 
of Executive Order 12866, as reaffirmed and amended by Executive Orders 
14094 and 13563, because it is not likely to: (1) have an annual effect 
on the economy of $200 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, Territorial 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 for which centralized review would meaningfully further the 
President's priorities or the principles set forth in Executive Order 
12866. Modernizing Regulatory Review, 88 FR 21879, 21879 (Apr. 11, 
2023). Therefore, no economic impact analysis under section 6(a)(3)(C) 
of Executive Order 12866 has been prepared.
    Also, because this rule is not significant under Executive Order 
12866, and because no notice of proposed rulemaking has been published, 
no statement is required under section 202 of the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is 
procedural and interpretative in nature and is thus not expected to 
have a significant economic impact. Finally, this rule does not have 
``federalism implications.'' The rule does not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, and therefore, 
is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

    The notice and comment rulemaking procedures of section 553 of the 
APA do not apply ``to interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' 5 
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment 
requirements are also exempt from the Regulatory Flexibility Act (RFA). 
See Small Business Administration Office of Advocacy, A Guide for 
Government Agencies: How to Comply with the Regulatory Flexibility Act, 
at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of 
agency procedure, practice, and interpretation within the meaning of 5 
U.S.C. 553; and, therefore, the rule is exempt from both the notice and 
comment rulemaking procedures of the APA and the requirements under the 
RFA.

List of Subjects in 29 CFR Part 1992

    Administrative practice and procedure, Anti-money laundering, 
Employment, Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of 
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety 
and Health.

    Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, for the reasons set out in the preamble, 29 CFR part 
1992 is added to read as follows:

PART 1992--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER THE ANTI-MONEY LAUNDERING ACT (AMLA)

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

Sec.
1992.100 Purpose and scope.
1992.101 Definitions.
1992.102 Obligations and prohibited acts.
1992.103 Filing of retaliation complaint.
1992.104 Investigation.
1992.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1992.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1992.107 Hearings.
1992.108 Role of Federal agencies.
1992.109 Decisions and orders of the administrative law judge.
1992.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1992.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1992.112 Judicial review.
1992.113 Judicial enforcement.
1992.114 District court jurisdiction of retaliation complaints.
1992.115 Special circumstances; waiver of rules.

    Authority:  31 U.S.C. 5323(a)(5), (g), and (j); Secretary of 
Labor's Order 08-2020, 85 FR 58393; Secretary of Labor's Order 01-
2020, 85 FR 13024-01.

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


Sec.  1992.100   Purpose and scope.

    (a) This part sets forth procedures for, and interpretations of the 
anti-retaliation protections of the Anti-Money Laundering Act of 2020 
contained in section 6314 of the William M. (Mac) Thornberry National 
Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 
Stat. 3388 (January 1, 2021), as amended, codified at 31 U.S.C. 5323 
(g)(1)-(3)and (g)(6) and referred to herein as AMLA. AMLA provides for 
protection from retaliation because a whistleblower has engaged in 
protected activity by providing information relating to a violation of 
31 U.S.C. chapter 53, subchapter II (relating to records and reports on 
monetary instruments transactions, 31 U.S.C. 5311-5336); chapter 35 or 
section 4305 or 4312 of title 50; the Foreign Narcotics Kingpin 
Designation Act (21 U.S.C. 1901 et seq.), or conspiracies to violate 
the aforementioned provisions; or initiating, testifying in, or 
assisting in any investigation or judicial or administrative action of 
the Department of the Treasury or the Department of Justice based upon 
or related to such information; or providing information relating to 
any conduct that the whistleblower reasonably believes constitutes a 
violation of any law, rule, or regulation subject to the jurisdiction 
of the Department of the Treasury, or a violation of section 1956, 
1957, or 1960 of title 18 (or any rule or regulation under any such 
provision).
    (b) This part establishes procedures under AMLA for the expeditious 
handling of retaliation complaints filed by whistleblowers, or by 
persons acting on their behalf. This part, together with 29 CFR parts 
18 and 26, set forth the procedures under AMLA for submission of 
complaints, investigations, issuance of findings and preliminary 
orders,

[[Page 3031]]

objections to findings and orders, litigation before administrative law 
judges (ALJs), post-hearing administrative review, and withdrawals and 
settlements. In addition, this part provide the Secretary's 
interpretations of certain statutory provisions.


Sec.  1992.101   Definitions.

    As used in this part:
    AMLA means the provisions relating to anti-retaliation of the Anti-
Money Laundering Act of 2020 contained in Sec. 6314 of the William M. 
(Mac) Thornberry National Defense Authorization Act for Fiscal Year 
2021, Public Law 116-283, 134 Stat. 3388 (January 1, 2021), as amended, 
codified at 31 U.S.C. 5323(g)(1)-(3) and (6).
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom the 
Assistant Secretary delegates authority under AMLA.
    Business days means days other than Saturdays, Sundays, and Federal 
holidays.
    Complainant means the whistleblower who filed an AMLA complaint or 
on whose behalf a complaint was filed.
    FinCEN means the Financial Crimes Enforcement Network, a bureau of 
the United States Department of the Treasury.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Respondent means the person named in the complaint who is alleged 
to have violated AMLA.
    Secretary means the Secretary of Labor or the person or persons to 
whom the Secretary delegates authority under certain anti-retaliation 
provisions of AMLA, 31 U.S.C. 5323(g)(1)-(3).
    Whistleblower means any individual, or two or more individuals 
acting jointly, who take any of the actions described in Sec.  
1992.102(b). A whistleblower includes an individual presently or 
formerly working for an employer, an individual applying to work for an 
employer, or an individual whose employment could be affected by an 
employer.


Sec.  1992.102   Obligations and prohibited acts.

    (a) No employer may directly or indirectly discharge, demote, 
suspend, threaten, blacklist, harass, or in any other manner 
discriminate against a whistleblower in the terms and conditions of 
employment or post-employment because of any lawful act done by the 
whistleblower to engage in any of the activities specified in 
paragraphs (b)(1), (2) and (3) of this section.
    (b) A whistleblower is protected against retaliation (as described 
in paragraph (a) of this section) by an employer for any lawful act 
done by the whistleblower:
    (1) In providing information relating to a violation of 31 U.S.C. 
chapter 53, subchapter II (Records and Reports on Monetary Instruments 
Transactions, 31 U.S.C. 5311-5336); chapter 35 or section 4305 or 4312 
of title 50; or the Foreign Narcotics Kingpin Designation Act, 21 
U.S.C. 1901 et seq., or a conspiracy to violate the aforementioned 
provisions to:
    (i) The employer of the whistleblower, including as part of the job 
duties of the whistleblower. The employer includes a person with 
supervisory authority over the whistleblower or such other person 
working for the employer who has authority to investigate, discover, or 
terminate misconduct;
    (ii) The Secretary of the Treasury or the Attorney General;
    (iii) A Federal regulatory or law enforcement agency; or
    (iv) Any Member of Congress or any committee of Congress;
    (2) In initiating, testifying in, or assisting in any investigation 
or judicial or administrative action of the Department of the Treasury 
or the Department of Justice based upon or related to the information 
described in paragraph (b)(1) of this section; or
    (3) In providing information regarding any conduct that the 
whistleblower reasonably believes constitutes a violation of any law, 
rule, or regulation subject to the jurisdiction of the Department of 
the Treasury, or a violation of section 1956, 1957, or 1960 of title 18 
(or any rule or regulation under any such provision) to:
    (i) A person with supervisory authority over the whistleblower at 
the employer of the whistleblower; or
    (ii) Another individual working for the employer who the 
whistleblower reasonably believes has the authority to investigate, 
discover, or terminate the misconduct; or take any other action to 
address the misconduct.
    (c) This section shall not apply with respect to any employer that 
is subject to section 33 of the Federal Deposit Insurance Act (12 
U.S.C. 1831j) or section 213 or 214 of the Federal Credit Union Act (12 
U.S.C. 1790b, 1790c).


Sec.  1992.103   Filing of retaliation complaint.

    (a) Who may file. Any individual who believes that they have been 
discharged or otherwise retaliated against, or is otherwise aggrieved 
by an employer in violation of AMLA may file, or have filed by any 
person on their behalf, a complaint alleging such retaliation.
    (b) Nature of filing. No particular form of complaint is required. 
A complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office responsible for enforcement activities in the geographical area 
where the complainant resides or was employed, but may be filed with 
any OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
internet address: https://www.osha.gov. Complaints may also be filed 
online using OSHA's online complaint form, currently available at 
https://www.osha.gov/whistleblower/WBComplaint.html.
    (d) Time for filing. Within 90 days after an alleged violation of 
AMLA occurs, an individual who believes that they have been retaliated 
against in violation of AMLA must file, or have filed by any person on 
their behalf, a complaint alleging such retaliation. The date of the 
postmark, facsimile transmittal, electronic filing or 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 or 
equitably modified for reasons warranted by applicable case law. For 
example, OSHA may consider the time for filing a complaint to be tolled 
if a complainant mistakenly files a complaint with an agency other than 
OSHA within 90 days after an alleged adverse action.


Sec.  1992.104   Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
will notify the respondent and the complainant's employer (if 
different) of the filing of the complaint, of the allegations contained 
in the complaint, and of the substance of the evidence supporting the 
complaint. Such materials will be redacted, if necessary, consistent 
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable 
confidentiality laws. OSHA will also notify the respondent of its 
rights under paragraphs (b) and (f) of this section and Sec.  
1992.110(e). OSHA will provide an unredacted copy of these same 
materials to the complainant (or the complainant's legal counsel if 
complainant is represented by counsel) and to FinCEN.

[[Page 3032]]

    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to OSHA a written statement and any affidavits or documents 
substantiating its position. Within the same 20 days, the respondent 
may request a meeting with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party 
provide the other parties to the whistleblower complaint with a copy of 
submissions to OSHA that are pertinent to the whistleblower complaint. 
Alternatively, if a party does not provide its submissions to OSHA to 
the other party, OSHA generally will provide them to the other party 
(or the party's legal counsel if the party is represented by counsel) 
at a time permitting the other party an opportunity to respond. Before 
providing such materials to the other party, OSHA will redact them, if 
necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a and 
other applicable confidentiality laws. OSHA will also provide each 
party with an opportunity to respond to the other party's submissions.
    (d) Investigations will be conducted in a manner that protects the 
confidentiality of any person who provides information on a 
confidential basis, other than the complainant, in accordance with part 
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has 
made a prima facie showing that protected activity was a contributing 
factor in the adverse action alleged in the complaint.
    (2) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The individual engaged in a protected activity;
    (ii) The respondent knew or suspected that the individual engaged 
in the protected activity;
    (iii) The individual 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 
individual 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 complainant shows that the 
adverse action took place shortly after the protected activity. If the 
required showing has not been made, the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) 
will be so notified and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, further investigation of 
the complaint will not be conducted if the respondent demonstrates by 
clear and convincing evidence that it would have taken the same adverse 
action in the absence of the complainant's protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy its burden set forth in paragraph (e)(4) of this section, 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.  1992.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated AMLA 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 (f). Before providing such materials, OSHA will 
redact them, if necessary, consistent with the Privacy Act of 1974, 5 
U.S.C. 552a, and other applicable confidentiality laws. The respondent 
will be given the opportunity to submit a written response, to meet 
with the investigator, to present statements from witnesses in support 
of its position, and to present legal and factual arguments. The 
respondent must present this evidence within 10 business days of OSHA's 
notification pursuant to this paragraph (f), or as soon thereafter as 
OSHA and the respondent can agree, if the interests of justice so 
require.


Sec.  1992.105   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 AMLA.
    (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 include, where 
appropriate: reinstatement with the same seniority status that the 
complainant would have had, but for the retaliation; two times the 
amount of back pay otherwise owed to the individual with interest; 
compensatory damages, including litigation costs, expert witness fees, 
and reasonable attorney fees; and any other appropriate remedy for the 
retaliation, as applicable. Interest on any back pay award will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily. Where appropriate, 
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 periods.
    (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 physical or electronic means that allow OSHA to confirm 
delivery to all parties of record (or each party's legal counsel if the 
party is represented by counsel). The findings and, where appropriate, 
the preliminary order will inform the parties of the right to object to 
the findings and/or order and to request a hearing, and of the right of 
the respondent to request an award of attorney fees not exceeding 
$1,000 from the ALJ, regardless of whether the respondent has filed 
objections, if the respondent alleges that the complaint was frivolous 
or brought in bad faith. The findings and, where appropriate, the 
preliminary order, also will give the address of the Chief 
Administrative Law Judge, U.S. Department of Labor, or appropriate 
information regarding filing objections electronically with the Office

[[Page 3033]]

of Administrative Law Judges. The findings also may specify the means, 
including electronic means, for serving OSHA and the Associate 
Solicitor for Fair Labor Standards with documents in the administrative 
litigation as required under this part. 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.  1992.106. 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.  1992.106   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 AMLA, 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.  1992.105. The objections and 
request for hearing and/or request for attorney fees must be in writing 
and must state whether the objections are to the findings, the 
preliminary order, or both, and/or whether there should be an award of 
attorney fees. The date of the postmark, facsimile transmittal, or 
electronic 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, in accordance 
with 29 CFR part 18, and copies of the objections must be served at the 
same time on 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. 
OSHA and the Associate Solicitor for Fair Labor Standards may specify 
the means, including electronic means, for serving them with copies of 
the objections.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1992.107   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 29 CFR part 18, subpart A.
    (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 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.  1992.108   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, and the right to seek discretionary 
review of a decision of the Administrative Review Board (ARB) from the 
Secretary.
    (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 this part. Except as otherwise provided in rules 
of practice and/or procedure before the OALJ or the ARB, OSHA and the 
Associate Solicitor for Fair Labor Standards may specify the means, 
including electronic means, for serving them with documents under this 
section.
    (b) The Department of the Treasury, if interested in a proceeding, 
may participate as amicus curiae at any time in the proceeding, at its 
discretion. At the request of The Department of the Treasury, copies of 
all documents in a case must be sent to the Department of the Treasury, 
whether or not it is participating in the proceeding.


Sec.  1992.109   Decisions and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in 
paragraph (a) of this section, 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.  1992.104(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

[[Page 3034]]

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 providing reinstatement with the same 
seniority status that the complainant would have had, but for the 
retaliation; two times the amount of back pay otherwise owed to the 
individual with interest; compensatory damages, including litigation 
costs, expert witness fees, and reasonable attorney fees; and any other 
appropriate remedy for the retaliation, as applicable. Interest on any 
back pay award 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 periods.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the ALJ may award to the 
respondent a reasonable attorney fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. OSHA and the Associate 
Solicitor for Fair Labor Standards may specify the means, including 
electronic means, for service of decisions on them under this section. 
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 30 days after the date of the 
decision unless a timely petition for review has been filed with the 
ARB. 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.  1992.110   Decisions and orders of the Administrative Review 
Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney 
fees, must file a written petition for review with the ARB, which has 
been delegated the authority to act for the Secretary and issue 
decisions under this part subject to the Secretary's discretionary 
review. 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 30 days of the date 
of the decision of the ALJ. All petitions and documents submitted to 
the ARB must be filed in accordance with part 26 of this title. The 
date of the postmark, or electronic 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. The 
petition for review also must be served on the Assistant Secretary and 
on the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor. OSHA and the Associate Solicitor for Fair Labor 
Standards may specify the means, including electronic means, for 
service of petitions for review on them under this section.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard, and 
will review legal conclusions de novo. If a timely petition for review 
is not filed, or the ARB denies review, the decision of the ALJ will 
become the final order of the Secretary. If a timely petition for 
review is not filed, the resulting final order is not subject to 
judicial review.
    (c) The decision of the ARB will be issued within 120 days of the 
conclusion of the hearing, which will be deemed to be 30 days after the 
decision of the ALJ, unless a motion for reconsideration has been filed 
with the ALJ in the interim. In such case, the conclusion of the 
hearing is the date the motion for reconsideration is ruled upon or 30 
days after a new decision is issued. The ARB's decision will be served 
upon all parties and the Chief Administrative Law Judge. The 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. OSHA and the Associate 
Solicitor for Fair Labor Standards may specify the means, including 
electronic means, for service of ARB decisions on them under this 
section.
    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue an order providing reinstatement with the same 
seniority status that the complainant would have had, but for the 
retaliation; two times the amount of back pay otherwise owed to the 
individual with interest; compensatory damages, including litigation 
costs, expert witness fees, and reasonable attorney fees; and any other 
appropriate remedy for the retaliation, as applicable. Interest on any 
back pay award 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 periods. Such order is subject to 
discretionary review by the Secretary (as provided in Secretary's Order 
01-2020 or any successor to that order).
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney fee, not exceeding $1,000. An order 
under this section is subject to discretionary review by the Secretary 
(as provided in Secretary's Order 01-2020 or any successor to that 
order).

Subpart C--Miscellaneous Provisions


Sec.  1992.111   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 the complaint by notifying OSHA, orally or in writing, of the 
withdrawal. OSHA then will confirm in writing the complainant's desire 
to withdraw and determine whether to approve the withdrawal. OSHA will 
notify the parties (or 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

[[Page 3035]]

submitted for approval in accordance with paragraph (d) of this 
section. A complainant may not withdraw the 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.  1992.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, but before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
OSHA, the complainant, and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA's consent and achieves the consent of all three 
parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ, or 
by the ARB if the ARB has accepted the case for review. If the 
Secretary has accepted the case for discretionary review, or directed 
that the case be referred for discretionary review, the settlement must 
be filed with the ARB for approval by the Secretary. A copy of the 
settlement will be filed with the ALJ or the ARB, as appropriate.
    (e) Any settlement approved by OSHA, the ALJ, the ARB or the 
Secretary will constitute the final order of the Secretary and may be 
enforced in United States district court pursuant to Sec.  1992.113.


Sec.  1992.112   Judicial review.

    (a) Within 60 days after the issuance of a final order for which 
judicial review is available (including a decision issued by the 
Secretary upon discretionary review), 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 the 
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.  1992.113   Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement or a final order issued under AMLA, including one 
approving a settlement agreement, the Secretary may file a civil action 
seeking enforcement of the order in the United States district court 
for the district in which the violation was found to have occurred. 
Whenever any person has failed to comply with a preliminary order of 
reinstatement or a final order issued under AMLA, including one 
approving a settlement agreement, 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.  1992.114   District court jurisdiction of retaliation complaints.

    (a) If the Secretary has not issued a final decision within 180 
days of the filing of the complaint, and there is no showing that there 
has been delay due to the bad faith of the complainant, the complainant 
may bring an action at law or equity for de novo review in the 
appropriate district court of the United States, which will have 
jurisdiction over such an action without regard to the amount in 
controversy. Either party shall be entitled to a trial by jury.
    (b) Within seven days after filing a complaint in Federal court, a 
complainant must file with OSHA, the ALJ, or the ARB, depending on 
where the proceeding is pending, a copy of the file-stamped complaint. 
A copy of the complaint also must be served on the OSHA official who 
issued the findings and/or preliminary order, the Assistant Secretary, 
and the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor.


Sec.  1992.115   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, and after three days' notice to all parties, waive any 
rule or issue such orders that justice or the administration of AMLA 
requires.

[FR Doc. 2025-00539 Filed 1-13-25; 8:45 am]
BILLING CODE 4510-26-P