| Donate $25 for two DVDs of the Cryptome collection of files from June 1996 to the present |
|
18 January 2011
[Federal Register: January 18, 2011 (Volume 76, Number 11)]
[Rules and Regulations]
[Page 2808-2826]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja11-10]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 24
[Docket Number: OSHA-2007-0028]
RIN 1218-AC25
Procedures for the Handling of Retaliation Complaints Under the
Employee Protection Provisions of Six Environmental Statutes and
Section 211 of the Energy Reorganization Act of 1974, as Amended
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document provides the final text of regulations governing
the employee protection (or ``whistleblower'') provisions of Section
211 of the Energy Reorganization Act of 1974, as amended, (``ERA''),
implementing the statutory changes enacted into law on August 8, 2005,
as part of the Energy Policy Act of 2005. The regulations also finalize
changes to the procedures for handling retaliation complaints under
Section 211 of the ERA and the six environmental whistleblower statutes
that were designed to make them as consistent as possible with the more
recently promulgated procedures for handling retaliation complaints
under other whistleblower provisions administered by the Occupational
Safety and Health Administration (OSHA).
DATES: This final rule is effective on January 18, 2011.
FOR FURTHER INFORMATION CONTACT: Nilgun Tolek, Director, Office of the
Whistleblower Protection Program, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199.
SUPPLEMENTARY INFORMATION:
I. Background
The Energy Policy Act of 2005, Public Law 109-58, was enacted on
August 8, 2005. Among other provisions, this new law amended the
employee protection provisions for nuclear whistleblowers under Section
211 of the ERA, 42 U.S.C. 5851; the statutory amendments affect only
ERA whistleblower complaints. The changes to the regulations also
affect the six environmental whistleblower statutes because the same
procedures generally apply to each of the statutes covered in 29 CFR
part 24. Because OSHA recognizes the importance of consistency in the
procedures governing the whistleblower statutes that it administers, it
has tried to standardize these regulations with other whistleblower
regulations promulgated by OSHA to the extent possible within the
bounds of the statutory language. We have removed from this background
section as unnecessary and confusing the statement in the interim final
rule that the 2005 ERA amendments apply to claims filed on or after
August 8, 2005; OSHA takes no position in these regulations on the
applicability of the 2005 ERA amendments to complaints filed with the
Department before August 8, 2005.
II. Summary of Statutory Changes to ERA Whistleblower Provisions
Section 629 of Public Law 109-58 (119 Stat. 785) amended Section
211 of the ERA, 42 U.S.C. 5851, by making the changes described below.
Revised Definition of ``Employer''
Section 211 of the ERA defined a covered ``employer'' to include:
Licensees of the Nuclear Regulatory Commission (``Commission'');
applicants for such licenses, and their contractors and subcontractors;
contractors and subcontractors of the Department of Energy, except
those involved in naval nuclear propulsion work under Executive Order
12344; licensees of an
[[Page 2809]]
agreement State under Section 274 of the Atomic Energy Act of 1954;
applicants for such licenses, and their contractors and subcontractors.
The August 2005 amendments revised the definition of ``employer'' to
extend coverage to employees of contractors and subcontractors of the
Commission; the Commission; and the Department of Energy.
De Novo Review
The August 2005 amendments added a provision for de novo review by
a United States District Court in the event that the Secretary has not
issued a final decision within one year after the filing of a
complaint, and there is no showing that the delay is due to the bad
faith of the complainant.
III. Summary of Regulations and Rulemaking Proceedings
On August 10, 2007, the Occupational Safety and Health
Administration published in the Federal Register an interim final rule
revising the rules that implemented Section 211 of the ERA, and the
whistleblower provisions of the environmental statutes listed in part
24, 72 FR 44956-44969. In addition to promulgating the interim final
rule, OSHA's notice included a request for public comment on the
interim rules by October 9, 2007.
In response, two organizations--the Government Accountability
Project (``GAP'') and the National Whistleblower Center (``NWC'')--and
four individuals--William H. Ewing, Esq.; Richard R. Renner, Esq.,
Jason M. Zuckerman, Esq., and James F. Newport--filed comments with the
agency within the public comment period. OSHA has reviewed and
considered these comments and now adopts this final rule which has been
revised in part to address problems perceived by the agency and the
commenters.
General Comments
Richard R. Renner, Jason M. Zuckerman, and William H. Ewing
commented generally that they believe the interim final regulations
frustrate the purposes of the statutes to protect the public from
environmental and nuclear safety dangers. They further commented that
the interim final rule will deter complainants who have filed
complaints under Section 211 of the ERA from seeking de novo relief in
district courts. Renner and Zuckerman stated that previously the
National Employment Lawyers Association helped initiate a liaison
process with the Office of Administrative Law Judges (OALJ) and with
OSHA ``to establish avenues of communication among policy makers,
whistleblower groups and employer groups'' and expressed disappointment
that the Department did not use that process to collect information and
make decisions prior to issuing an interim final rule. Although no
formal liaison process has been established, OSHA has met with
representatives of the National Employment Lawyers Association and
looks forward to further dialogue with its stakeholders.
The provisions in the interim final rule governing the filing of
actions for de novo review in district court were modeled on the
regulations implementing the whistleblower provisions of Section 806 of
the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII
of the Sarbanes-Oxley Act of 2002 (``SOX''), 18 U.S.C. 1514A, codified
at 29 CFR part 1980. OSHA does not believe that those regulations have
deterred complainants from taking actions to district court under the
de novo review provision. Nevertheless, based on a review of the
comments and the agency's further consideration, OSHA has made some
changes to the preamble and regulatory provisions that address an
employee's option of proceeding in district court.
IV. Summary and Discussion of Regulatory Provisions
The regulatory provisions in this part have been revised to be
consistent with other whistleblower regulations promulgated by OSHA to
the extent possible within the bounds of the statutory language of the
ERA and the six environmental statutes listed in section 24.100(a). The
section numbers of these regulations also have been changed to
correspond with the numbering under the regulations implementing other
whistleblower statutes administered by OSHA. Although these regulations
are intended to be consistent with the majority of OSHA's other
whistleblower regulations, they refer to actions brought under the
whistleblower provisions of the ERA and the six environmental statutes
as actions alleging ``retaliation'' rather than ``discrimination.''
This change in terminology, which is not intended to have substantive
effect, reflects that claims brought under these whistleblower
provisions are prototypical retaliation claims. A retaliation claim is
a specific type of discrimination claim that focuses on actions taken
as a result of an employee's protected activity rather than as a result
of an employee's characteristics (e.g., race, gender, or religion).
Richard R. Renner and Jason Zuckerman commented that it would be
helpful if the Department clarified in this Summary and Discussion of
Regulatory Provisions that adverse actions in Title VII retaliation
cases are not limited to tangible employment actions and that the
burdens of proof in ERA cases, which were altered by statute in 1992,
differ from the burdens of proof generally applicable to traditional
discrimination cases. Renner and Zuckerman suggested that these
principles can be clarified by including within the regulations
definitions of ``unfavorable personnel action,'' ``clear and convincing
evidence,'' and ``contributing factor.'' OSHA does not believe that
these clarifications are necessary in the regulations. However, OSHA
has included a discussion of these phrases in the preamble. Also, as
explained in more detail below, for clarity and consistency, the final
regulations use the phrase ``adverse action'' throughout, rather than
the phrase ``unfavorable personnel action.'' In addition, both the
preamble and the regulations clearly distinguish between the burdens of
proof that apply under Section 211 of the ERA and the burdens of proof
that apply under the six environmental whistleblower statutes.
Subpart A--Complaints, Investigations, Issuance of Findings
Section 24.100 Purpose and Scope
This section (formerly section 24.1) describes the purpose of the
regulations implementing the whistleblower provisions of seven statutes
enforced by the Secretary of Labor and provides an overview of the
procedures covered by the regulations. The section has been revised to
refer to the Federal Water Pollution Control Act, instead of the Clean
Water Act. They are synonymous, but the Office of Administrative Law
Judges and the Administrative Review Board (ARB) generally use Federal
Water Pollution Control Act, and we do so here for the sake of
consistency. In addition, the section has been renumbered to conform to
the numbering system for other whistleblower regulations promulgated by
OSHA. Thus, for example, former section 24.1 becomes current section
24.100. No comments were received on this section.
Section 24.101 Definitions
This new section includes general definitions applicable to the
whistleblower provisions of the seven statutes listed in section
24.100(a). This section does not include program-specific definitions,
which may be
[[Page 2810]]
found in the statutes. For purposes of clarity, OSHA has added a
definition of ``business days'' to this definitional section. The term
means days other than Saturday, Sunday, and Federal holidays.
One comment was received regarding the definitions contained in
section 24.101. GAP commented that the definition of ``Respondent''
should include individuals other than employers, because the Solid
Waste Disposal Act (SWDA), 42 U.S.C. 6971(a), provides that ``[n]o
person shall fire, or in any other way discriminate against * * * any
employee'' who has engaged in protected activity, and the Federal Water
Pollution Control Act (FWPCA), 33 U.S.C. 1367, and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. 9610, have similar provisions. As GAP acknowledges in its
comments, however, the ARB has held that notwithstanding the use of
``person'' in the FWPCA, SWDA, and CERCLA in place of ``employer,'' the
statutes nevertheless require that the respondent have an employment
relationship with the complainant or act in the capacity of an
employer, that is, exercise control over the terms, conditions, or
privileges of the complainant's employment. See, e.g., Culligan v.
American Heavy Lifting Shipping Co., No. 03-046 (ARB June 30, 2004).
Accordingly, OSHA does not believe that changes to the definition of
Respondent are necessary.
Section 24.102 Obligations and Prohibited Acts
This section (formerly section 24.2) describes the activities that
are protected under the statutes covered by this part, and the conduct
that is prohibited in response to any protected activities. The
language generally has been revised to conform to the language in the
majority of the other whistleblower regulations promulgated by OSHA, to
the extent possible within the bounds of the statutory language of the
ERA and the six environmental statutes. The changes are not intended to
be substantive. References to the statutes listed in section 24.100(a)
have deleted the adjective ``Federal'' as unnecessary. Paragraph (e)
has been moved from former section 24.9. We note that the ARB
interprets the phrase ``deliberate violations'' for the purpose of
denying protection to an employee as including an element of
willfulness. See Fields v. U.S. Dep't of Labor Admin. Review Bd., 173
F.3d 811, 814 (11th Cir. 1999) (petitioners knowingly conducted
unauthorized and potentially dangerous experiments).
One comment was received regarding the obligations and prohibited
acts contained in section 24.102. GAP commented that in section
24.102(a), the term ``employer'' is too restrictive with respect to the
FWPCA, CERCLA, and SWDA. As discussed above, the ARB has held that the
use of ``person'' in the FWPCA, SWDA, and CERCLA in place of
``employer'' still requires that the respondent have an employment
relationship with the complainant or act in the capacity of an
employer. Accordingly, OSHA does not believe that use of the term
``employer'' is too restrictive in section 24.102(a). We note that
former section 24.2 also used the term ``employer'' in describing
obligations and prohibited acts. GAP also commented that the phrase
``or otherwise retaliate against'' should be changed to the statutory
language ``or otherwise discriminate against'' to be consistent with
the statutes, and that the language in section 24.102(c) describing the
prohibitions under the ERA also should be changed from ``retaliate'' to
``discriminate,'' because `` `[d]iscrimination' and `retaliation' are
not synonyms.'' According to GAP, the latter term ``requires a showing
of animus; the former only disparate treatment.'' As noted in this
preamble, the use of the term ``retaliation'' in lieu of
``discrimination'' in these regulations is not meant to have a
substantive distinction. Rather, the change in nomenclature reflects
that claims brought under these whistleblower provisions are
prototypical retaliation claims. Use of the term ``retaliation'' does
not preclude a complaint based on an allegation of ``disparate
treatment,'' as suggested by GAP. A discrimination claim based on
``disparate treatment'' requires a showing of intent to discriminate.
See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1283-84 (11th
Cir. 2000). Similarly, a retaliation claim requires a showing of intent
to retaliate. See Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119
(8th Cir. 2006) (``The ultimate question in any retaliation case is
whether the employer's adverse action against the employee was
motivated by retaliatory intent.''). Accordingly, OSHA does not believe
that it is necessary to change its use of the word ``retaliation,''
which is an accurate description of the type of discrimination claim
that is at issue under the whistleblower provisions of the ERA and the
six environmental statutes.
Section 24.103 Filing of Retaliation Complaint
This section (formerly section 24.3) has been revised to be
consistent with the regulatory procedures implementing other
whistleblower provisions administered by OSHA. Thus, the section
heading has been changed from ``Complaint'' to ``Filing of retaliation
complaint.'' Also, paragraph (c) has been changed to paragraph (b) and
the heading has been changed from ``Form of Complaint'' to ``Nature of
filing.'' Paragraph (d) has been changed to paragraph (c); and
paragraph (b) has been changed to paragraph (d) and the language has
been changed to conform with that appearing in most of OSHA's other
whistleblower regulations. Finally, paragraph (e) ``Relationship to
section 11(c) complaints'' has been added to explain the policy of the
Secretary regarding the relationship between complaints filed under the
statutes listed in section 24.100(a) and a complaint under Section
11(c) of the Occupational Safety and Health Act. No comments were
received on this section.
The final regulation in paragraph (b) has been revised to provide
that no particular form of complaint is required. Paragraph (b)
specifies that a complaint may be made orally or in writing. It also
states that when a complaint is made orally, OSHA will reduce the
complaint to writing and that if a complainant is not able to file the
complaint in English, the complaint may be filed in any language. These
changes are consistent with decisions of the ARB, which have permitted
oral complaints. See, e.g., Roberts v. Rivas Environmental Consultants,
Inc., 96-CER-1, 1997 WL 578330, at *3 n.6 (Admin. Review Bd. Sept. 17,
1997) (complainant's oral statement to an OSHA investigator, and the
subsequent preparation of an internal memorandum by that investigator
summarizing the oral complaint, satisfies the ``in writing''
requirement of CERCLA, 42 U.S.C. Sec. 9610(b), and the Department's
accompanying regulations in 29 CFR part 24); Dartey v. Zack Co. of
Chicago, No. 82-ERA-2, 1983 WL 189787, at *3 n.1 (Sec'y of Labor Apr.
25, 1983) (adopting administrative law judge's findings that
complainant's filing of a complaint to the wrong DOL office did not
render the filing invalid and that the agency's memorandum of the
complaint satisfied the ``in writing'' requirement of the ERA and the
Department's accompanying regulations in 29 CFR part 24). Moreover,
this is consistent with OSHA's longstanding practice of accepting oral
complaints filed under Section 11(c) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 660(c); Section 211 of the Asbestos
Hazard Emergency Response Act of 1986, 15 U.S.C. 2651; Section 7 of the
International Safe Container Act of 1977, 46 U.S.C. 80507; and the
Surface
[[Page 2811]]
Transportation Assistance Act of 1982, 49 U.S.C. 31105.
Section 24.104 Investigation
This section (formerly section 24.4) has been revised so that its
language will conform more closely to the language of the majority of
OSHA's other whistleblower regulations. Additionally, former paragraph
(b) of section 24.5 has been revised and moved to this section, and
former paragraph (d) of section 24.4 has been revised and moved to
section 24.105, where it more appropriately appears under ``Issuance of
findings and orders.''
Paragraphs (e) and (f) of section 24.104 set forth the standards of
causation that OSHA applies to cases under the six environmental
whistleblower statutes and the ERA. When adjudicating whistleblower
complaints under the six environmental whistleblower statutes, the
Department has relied on standards derived from discrimination case law
as set forth under Mt. Healthy City School District Board of Education
v. Doyle, 429 U.S. 274 (1977); Price Waterhouse v. Hopkins, 490 U.S.
228 (1989); Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981); and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Abdur-Rahman v. Dekalb County, ARB Case Nos. 08-003, 10-074, 2010
WL 2158226, at *6 (Admin. Review Bd. May 18, 2010) (motion for
reconsideration pending); Dartey v. Zack Co., No. 82-ERA-2, 1983 WL
189787, at *3-*4 (Sec'y of Labor Apr. 25, 1983). Under these standards,
a complainant may prove retaliation either by showing that the
respondent took the adverse action because of the complainant's
protected activity or by showing that retaliation was a motivating
factor in the adverse action (i.e. a ``mixed-motive analysis''). See,
e.g., Abdur-Rahman, 2010 WL 2158226, at *6 (FWPCA case applying a mixed
motive analysis); Higgins v. Alyeska Pipeline Serv. Corp., ARB Case No.
01-022, 2003 WL 21488356, at *4 (Admin. Review Bd. June 27, 2003)
(explaining burdens of proof applicable to claims under TSCA, SWDA, and
CAA); Masek v. The Cadle Co., ARB Case No. 97-069, 2000 WL 562699, at
*9-*10 (Admin. Review Bd. Apr. 28, 2000) (explaining burdens of proof
applicable to claims under FWCPA, TSCA, CAA and CERCLA); Combs v.
Lambda Link, ARB Case No. 96-066, 1997 WL 665483, at *1-*2 (Admin.
Review Bd. Oct. 17, 1997) (applying mixed-motive analysis under CAA,
TSCA, FWCPA).
If the complainant demonstrates that the respondent acted at least
in part for prohibited reasons, the burden shifts to the respondent to
prove by a preponderance of the evidence, that it would have reached
the same decision even in the absence of protected activity. See, e.g.,
Dixon v. U.S. Dep't of Interior, Bureau of Land Mgmt., ARB Case No. 06-
14706-160, 2008 WL 4124113, at *9-*10 (Admin. Review Bd. Aug. 28, 2008)
(applying ``mixed motive'' analysis to claims under CERCLA and SDWA);
Dartey, 1983 WL 189787, at *4 (discussing Mt. Healthy, 429 U.S. at
287). In such cases, the employer ``bears the risk that `the influence
of legal and illegal motives cannot be separated.' '' Mackowiak v.
Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1164 (9th Cir. 1984) (ERA case)
(which quoted NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 403 (1983)).
At the investigation stage, OSHA will dismiss the complaint unless
the complainant makes a prima facie showing that protected activity was
at least a motivating factor in the alleged adverse action. The
complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity;
(ii) The respondent knew or suspected that the employee engaged in
the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a motivating factor in the adverse action.
The complainant will be considered to have met the required showing
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 sufficient to give rise to an
inference that the respondent knew or suspected that the employee
engaged in protected activity and that the protected activity was a
motivating factor in the adverse action. The required showing may be
satisfied, for example, if the complainant shows that the adverse
action took place shortly after the protected activity, giving rise to
the inference that it was a motivating factor in the adverse action.
OSHA will dismiss the complaint if a preponderance of the evidence
shows that the respondent would have taken the same adverse action in
the absence of the complainant's protected activity.
The Department recognizes that after promulgation of the interim
final rule, the Supreme Court issued Gross v. FBL Financial Services,
Inc., 129 S. Ct. 2343 (2009). The Court held in Gross that the
prohibition against discrimination ``because of'' age in the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. 623(a)(1), requires
a plaintiff to ``prove that age was the `but-for' cause of the
employer's adverse decision.'' 129 S. Ct. at 2350 (citation omitted).
The Court rejected arguments that a plaintiff could prevail in an
action under the ADEA by showing that discrimination was a motivating
factor for the adverse decision, after which the employer had the
burden of proving that it would have reached the same decision for non-
discriminatory reasons. Id. at 2351-52.
The Department does not believe that the Supreme Court's decision
in Gross affects the long-standing burden-shifting framework applied in
mixed-motive cases under the six environmental whistleblower statutes
as reflected in the Department's regulations and case law. The Supreme
Court's Gross decision involved an age discrimination case under the
ADEA, not retaliation cases filed by individuals under the
environmental statutes. The Supreme Court cautioned in Gross itself
that ``[w]hen conducting statutory interpretation, we `must be careful
not to apply rules applicable under one statute to a different statute
without careful and critical examination.' '' Id. at 2349 (quoting Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008)); see Smith v.
Xerox Corp., 602 F.3d 320 (5th Cir. 2010) (ADEA analysis in Gross is
inapplicable to Title VII anti-retaliation cases); But see, e.g.,
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010)
(applying Gross reasoning to Americans with Disabilities Act).
In addition, as the Court noted in Gross, its decision did not
conflict with, or undermine, prior Supreme Court decisions applying the
mixed motive burden-shifting framework to Constitutional cases and
cases under the National Labor Relations Act (NLRA). Gross, 129 S. Ct.
at 2352 n.6 (citing Transp. Mgmt. Corp., 462 U.S. at 401-403; and Mt.
Healthy City Bd. of Educ., 429 U.S. at 287); but see Fairley v.
Andrews, 578 F.3d 518 (7th Cir. 2009) (applying Gross reasoning to
First Amendment case), cert. denied, 130 S. Ct. 3320 (2010). The Court
recognized the appropriateness of deferring to the National Labor
Relations Board's (NLRB's) interpretation of the NLRA to allow a mixed
motive burden-shifting analysis. Gross, 129 S. Ct. at 2352 n.6 (``The
case involving the NLRA did not require the Court to decide in the
first instance whether burden shifting should apply as the Court
instead deferred to
[[Page 2812]]
the National Labor Relations Board's determination that such a
framework was appropriate'') (citation omitted); see Hunter v. Valley
View Local Schs., 579 F.3d 688, 691-92 (6th Cir. 2009) (deferring to
Department of Labor's Family and Medical Leave Act (FMLA) regulations
in holding that prohibition in FMLA against interference with the
exercise of rights permits mixed-motive analysis after Gross). With
regard to the environmental whistleblower provisions, as with the
NLRB's interpretation of the NLRA, the Secretary's longstanding
administrative case law permits a mixed-motive analysis. This case law
is due deference as the Secretary's reasonable interpretation of the
environmental whistleblower statutes. Knox v. U.S. Dep't of Labor, 434
F.3d 721, 724 (4th Cir. 2006) (``We review the ARB's interpretation of
the CAA under the deferential standard set forth in Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc.''); Anderson v. U.S.
Dep't of Labor, 422 F.3d 1155, 1173, 1181 (10th Cir. 2005) (providing
Chevron deference to the ARB's construction of the environmental
whistleblower statutes); Reid v. Sec'y of Labor, No. 95-3648, 1996 WL
742221, at *1 (6th Cir. 1996) (unpubl'd) (106 F.3d 401 (Table))
(deferring to Secretary's reasonable construction of the term employee
under CAA); Mackowiak, 735 F.2d at 1164 (deferring to Secretary's
application of mixed-motive analysis under pre-amendment version of the
ERA).
Finally, the Court in Gross based its decision that a mixed-motive
analysis was inapplicable to the ADEA in part on its determination that
Congress decided not to amend the ADEA to clarify that a mixed-motive
analysis applied when it amended both the ADEA and Title VII in the
Civil Rights Act of 1991 (Title VII). Gross, 129 S. Ct. at 2349
(``Unlike Title VII, the ADEA's text does not provide that a plaintiff
may establish discrimination by showing that age was simply a
motivating factor. Moreover, Congress neglected to add such a provision
to the ADEA when it amended Title VII to add Sec. Sec. 2000e-2(m) and
2000e-5(g)(2)(B), even though it contemporaneously amended the ADEA in
several ways'') (citations omitted). In so finding, the Court noted
that `` `negative implications raised by disparate provisions are
strongest' when the provisions were `considered simultaneously when the
language raising the implication was inserted.' '' Id. (quoting Lindh
v. Murphy, 521 U.S. 320, 330 (1997)). Congress did not consider
amendments to the environmental whistleblower provisions when it
amended Title VII and the ADEA in the Civil Rights Act of 1991. Thus,
the environmental whistleblower statutes do not raise the strong
negative implications that the Supreme Court noted in Gross.
The Department therefore believes that the application of a mixed-
motive analysis to the environmental whistleblower statutes continues
to be appropriate based on the ARB's longstanding decisions
interpreting these statutes, is consistent with Congress' intent and is
reasonable in the context of the remedial purposes of these laws to
safeguard workers from retaliation for protected activity involving the
public health and the environment.
Paragraph (f) of this section, which sets forth procedures that
apply only in ERA cases, applies the ERA's statutory burdens of proof.
Since the 1992 amendments to the ERA, its whistleblower provisions, in
contrast to the other whistleblower provisions listed under section
24.100(a), have contained specific statutory standards for the
dismissal and adjudication of complaints. See 42 U.S.C. 5851(b)(3)(A)
through (b)(3)(D); Public Law 102-486, Sec. 2902, 106 Stat. at 3123-
3124. Because the ERA expressly sets forth the burdens of proof that
apply to retaliation claims under that statute, the holding in Gross
does not apply to the ERA. The ERA requires that a complainant make an
initial prima facie showing that his or her 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.
42 U.S.C. 5851(b)(3)(A). If the complainant does not make the 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 distinct burden-shifting framework of
the 1992 ERA amendments served a ``gatekeeping function'' that
``stemmed 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, under the ERA, the Secretary
must dismiss the complaint and not investigate (or cease investigating)
if either: (1) The complainant fails to meet the prima facie showing
that protected activity was a contributing factor in the adverse
action; or (2) the employer rebuts that showing by clear and convincing
evidence that it would have taken the same adverse action absent the
protected activity. Assuming that an investigation proceeds beyond the
gatekeeping phase, the ERA specifies statutory burdens of proof that
require an employee to prove that the alleged protected activity was a
``contributing factor'' to the alleged adverse action. 42 U.S.C.
5851(b)(3)(C). If the employee proves that the alleged protected
activity was a contributing factor to the adverse action, the employer,
to escape liability, must prove by ``clear and convincing evidence''
that it would have taken the same action in the absence of the
protected activity. A contributing factor is ``any factor, which alone
or in combination with other factors, tends to affect in any way the
outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137,
1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)); cf. Trimmer, 174 F.3d at 1101 (the 1992 amendments aimed,
in part, ``to make it easier for [ERA] whistleblowers to prevail in
their discrimination suits'')). In proving that protected activity was
a contributing factor in the adverse action, ``a complainant need not
necessarily prove that the respondent's articulated reason was a
pretext in order to prevail,'' because a complainant alternatively can
prevail by showing that the respondent's `` `reason, while true, is
only one of the reasons for its conduct,' '' and that another reason
was complainant's protected activity. See Klopfenstein v. PCC Flow
Techs. Holdings, Inc., No. 04-149, 2006 WL 1516650, *13 (ARB May 31,
2006) (discussing contributing factor test under SOX) (citing Rachid v.
Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
The ERA statutory burdens of proof do not address the evidentiary
standard that applies to a complainant's proof that protected activity
was a contributing factor in an adverse action. Adhering to traditional
Title VII discrimination law, it is the Secretary's position that the
complainant must prove by a ``preponderance of the evidence'' that his
or her protected activity contributed to the adverse action; otherwise,
the burden never shifts to the employer to establish its ``clear and
convincing evidence'' defense. See, e.g., Dysert v. U.S. Sec'y of
Labor, 105 F.3d 607, 609 (11th Cir. 1997) (upholding Department's
interpretation of 42 U.S.C. 5851(b)(3)(C), as requiring an employee to
prove by a preponderance of the evidence that
[[Page 2813]]
protected activity was a contributing factor in an adverse action); see
also Trimmer, 174 F.3d at 1102 (``[o]nly if the complainant meets his
burden [of proving by a preponderance of the evidence that he engaged
in protected activity that was a contributing factor in an adverse
action] does the burden then shift to the employer to demonstrate by
clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of such behavior.''); Stone
& Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir.
1997) (under section 5851, an employee must first persuade the
Secretary that protected activity was a contributing factor in an
adverse action and then, if the employee succeeds, the employer must
prove by clear and convincing evidence that it would have taken the
same action in the absence of protected activity).
The 1992 ERA amendments altered the employer's burden in
traditional ``mixed motive'' cases; under the ERA, once the Secretary
concludes that the employer acted for both prohibited and legitimate
reasons, the employer can escape liability only by proving by clear and
convincing evidence that it would have reached the same decision even
in the absence of the protected activity. 42 U.S.C. 5851(b)(3)(D). The
``clear and convincing evidence'' standard is a higher burden of proof
for employers than the former ``preponderance of the evidence''
standard. See 138 Cong. Rec. 32,081, 32,082 (1992). Comments were
received on section 24.104 from GAP, NWC, William H. Ewing, Richard R.
Renner, and Jason M. Zuckerman. GAP, Ewing, Renner, and Zuckerman
commented that section 24.104(b) should require that the respondent's
responses to the complaint be served on the complainant. According to
GAP, while the procedures currently require the complainant to provide
information that can be reviewed by the respondent, they do not require
the respondent to share information with the complainant. Ewing,
Renner, and Zuckerman commented that investigations would be improved
if complainants were given copies of the respondents' responses. OSHA
believes that these concerns are valid and has specified in the
regulation that the agency will provide to the complainant (or the
complainant's legal counsel if complainant is represented by counsel) a
copy of all of respondent's submissions to the agency that are
responsive to the complainant's whistleblower complaint. Before
providing such materials to the complainant or the complainant's legal
counsel, the agency will redact them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable
confidentiality laws. The agency expects that sharing information with
complainants in accordance with this new provision will enhance OSHA's
ability to conduct full and fair investigations and permit the
Assistant Secretary to more thoroughly assess defenses raised by
respondents.
Commenting on section 24.104(c), Renner and Zuckerman commented
that it is important for employee witnesses of respondents to have the
option of meeting privately with the OSHA investigator because they may
be reluctant to speak to investigators for fear of retaliation. While
OSHA does not believe that any changes to its regulations are
necessary, it is OSHA's policy to meet privately with non-management
employees. The facts and circumstances of each case will be considered
in determining whether an employee is a non-management employee. In
addition, the whistleblower provisions of the six environmental
statutes and the ERA protect management employees to the same extent
that they protect non-management employees. Thus, where the complainant
is a management employee, it is OSHA's policy to meet privately with
the complainant.
GAP objected to OSHA's use in sections 24.104(d) and (e) of the
terms ``unfavorable personnel action'' and ``adverse personnel
action,'' because those terms suggest that only actions taken by an
employer's personnel or human resources departments are actionable.
OSHA does not believe that the reference to ``personnel action'' in
sections 24.104(d) and (e) of the interim final rule suggested that
only adverse actions taken by personnel or human resources departments
are actionable. However, for clarity and consistency, the final
regulatory text has been changed to use ``adverse action'' throughout.
GAP also commented with respect to section 24.104(e)(4) that to
refuse to investigate or discontinue an investigation before all of the
evidence is reviewed by OSHA is ``inconsistent with the letter and
spirit of the employee protection provision of the ERA,'' and that only
where there is no evidence of protected activity should an
investigation be either not conducted or discontinued. Moreover, GAP
commented that ``[t]he regulations must specify that investigators pay
particular attention to pretext in the form of misuse of policies or
unequal enforcement of policies against those who engage in protected
activity.'' OSHA does not believe that these comments require revisions
to the regulations. The language contained in section 24.104(e)(4)
reflects the statutory language of the ERA. See 42 U.S.C. 5851(b)(3)(A)
and (3)(B). OSHA conducts fair and impartial investigations of
whistleblower complaints. In evaluating the merits of a complaint,
investigators credit only explanations for adverse action taken by an
employer that are supported by the evidence.
NWC commented that these regulations should adopt the statutory ERA
burdens of proof for complaints filed under the six environmental
statutes, because since the 1992 ERA amendments, Congress has applied
the ERA burdens of proof to other whistleblower statutes that it has
enacted or amended, including the Pipeline Safety Improvement Act of
2002 (``PSIA''), 49 U.S.C. 60129; SOX; the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (``AIR21''), 49 U.S.C.
42121; and the Surface Transportation Assistance Act of 1982
(``STAA''), 49 U.S.C. 31105. NWC commented in this regard that the
burdens of proof currently applied to the six environmental
whistleblower acts are not statutory, but are based on employment
discrimination law (Title VII), and that using the ERA burdens of proof
for the six environmental statutes would serve the interests of
justice. However, absent specific statutory direction, OSHA does not
believe it is appropriate to apply the ERA's burdens of proof to the
six environmental statutes.
Section 24.105 Issuance of Findings and Orders
The procedures set forth in this section formerly appeared under a
paragraph of section 24.4, the Investigations section. This new section
was created for purposes of clarification and consistency with a
majority of the other whistleblower regulations promulgated by OSHA.
The former regulations provided that the Assistant Secretary would
issue a ``Notice of Determination'' at the conclusion of the
investigation, or upon dismissal of a complaint. These regulations no
longer use the term ``Notice of Determination.'' Instead, the
regulations refer to the issuance of findings and orders, the
nomenclature used in most of OSHA's other whistleblower regulations.
This change in nomenclature is not intended to be substantive.
The 30-day timeframe for completion of the investigation has been
retained because it is a statutory requirement under the majority of
the whistleblower
[[Page 2814]]
statutes covered by this part (the Solid Waste Disposal Act, the
Federal Water Pollution Control Act, and the Comprehensive
Environmental Response, Compensation and Liability Act have no
timeframe). The current regulations provide a 5-business-day timeframe
for filing objections to the findings. These new regulations have been
changed to provide that if no objections to the Assistant Secretary's
findings and order are filed within 30 days of their receipt, the
findings and order of the Assistant Secretary will become the final
order of the Secretary. Thus, the timeframe for objecting to the
findings and/or order and for requesting a hearing has been extended
from 5 business days to 30 days. The Secretary is aware that, since the
ERA, the Clean Air Act (``CAA''), the Safe Drinking Water Act
(``SDWA''), and the Toxic Substances Control Act (``TSCA'') provide
that the Secretary should issue a final decision within 90 days of the
filing of the complaint, allowing the parties 30 days in which to
object to the Assistant Secretary's findings and any order issued may
have an impact on the Department's meeting the 90-day timeframe.
Although the ERA amendments in 2005 did not change the 90-day
timeframe, the Secretary believes that in amending the ERA in 2005,
Congress recognized that it appropriately could take up to one year to
complete the investigatory and adjudicative processing of a
whistleblower complaint (i.e., issue a final decision of the Secretary)
under these environmental statutes. Accordingly, the Secretary believes
that allowing 30 days for a party to object to the Assistant
Secretary's findings and request a hearing is warranted. Not only does
the extension make the regulations more consistent with those
implementing the majority of the other whistleblower statutes
administered by OSHA, it also offers the parties a more reasonable
timeframe in which to consider whether to appeal the Assistant
Secretary's findings.
With regard to this section, GAP, William H. Ewing, Richard R.
Renner and Jason M. Zuckerman expressed approval for OSHA's decision to
increase the time period for seeking a hearing from five business days
to 30 days. In addition, GAP, Ewing, Renner, and Zuckerman commented
that in section 24.105(b), the rule should specifically require service
on the attorney of record for each party (if the party has counsel).
Ewing, Renner, and Zuckerman commented that alternatively, the rule
should allow objections within 30 days of the last date of service,
when the party and his or her attorney are served at different times.
Although it is already OSHA's policy to send its findings to the
complainant and the respondent by certified mail with copies to their
respective attorneys, OSHA has revised the regulations to require
service on the attorney of record.
Subpart B--Litigation
Section 24.106 Objections to the Findings and Order and Request for a
Hearing
Formerly, the procedures for requesting a hearing before an
administrative law judge (``ALJ'') were set forth under section 24.6.
As indicated above, to be effective, objections to the findings of the
Assistant Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, 800 K Street, NW.,
Washington, DC 20001 within 30 days of receipt of the findings. The
date of the postmark, facsimile transmittal, or e-mail communication 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 is also considered a request for a hearing
before an ALJ. Although the parties are directed to serve a copy of
their objections to the other parties of record, as well as 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, 200 Constitution Ave., NW., Room N-2716,
Washington, DC 20210, the failure to serve copies of the objections to
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., No. 04-101, 2005 WL 2865915, *7 (ARB Oct.
31, 2005).
GAP commented that the language in section 24.106(a) needs to be
clarified because it is unclear whether detailed objections, which are
unnecessary since an administrative hearing is de novo, must accompany
a hearing request. GAP suggested that the regulation be changed to
state that ``it is sufficient for an objecting party to request a
hearing.'' OSHA has considered this concern and does not believe that
changes to the rule are necessary or that the suggested change would
add helpful clarification; the rule contains no requirement that a
party file detailed objections to request a hearing.
Section 24.107 Hearings
This section has been revised to conform to the majority of the
other whistleblower regulations promulgated by OSHA. The interim final
rule adopted the rules of practice of the Office of Administrative Law
Judges at 29 CFR part 18, subpart A. In order to assist in obtaining
full development of the facts in whistleblower proceedings, however,
the interim final rule provided that formal rules of evidence do not
apply. The section specifically provides for consolidation of hearings
if both the complainant and respondent object to the findings and/or
order of the Assistant Secretary. Otherwise, this section no longer
addresses procedural issues, e.g., place of hearing, right to counsel,
procedures, evidence and record of hearing, oral arguments and briefs,
and dismissal for cause, because the Office of Administrative Law
Judges has adopted its own rules of practice that cover these matters.
In order for hearings to be conducted as expeditiously as possible, and
particularly in light of the provision in the ERA allowing complainants
to seek a de novo hearing in Federal court if the Secretary has not
issued a final decision within one year of the filing of the complaint,
this section in the interim final rule provided that the ALJ has broad
authority to limit discovery. The preamble noted, for example, that an
ALJ may limit the number of interrogatories, requests for production of
documents, or depositions allowed. The preamble also noted that an ALJ
may exercise discretion to limit discovery unless the complainant
agrees to delay filing a complaint in Federal court for some definite
period of time beyond the one-year point; and that if a complainant
seeks excessive or burdensome discovery under the ALJ's rules and
procedures at part 18 of Title 29, or fails to adhere to an agreement
to delay filing a complaint in Federal court, a district court
considering a request for de novo review might conclude that such
conduct resulted in a delay due to the claimant's bad faith.
Former paragraphs (f) and (g) of this section have been moved to
section 24.108.
Comments on section 24.107 were received from GAP, NWC, William H.
Ewing, James F. Newport, Richard R. Renner, and Jason M. Zuckerman. GAP
commented that this section should be rewritten to de-emphasize the
importance of an expeditious hearing. According to GAP, limiting
discovery injures complainants to a greater extent than respondents
because the documents needed to prove their cases
[[Page 2815]]
are in the possession of the respondents. Similarly, NWC, Ewing,
Newport, Renner, and Zuckerman opposed the last sentence of section
24.107(b), which provides ALJs with broad discretion to limit discovery
to expedite hearings. NWC commented that there is no legal basis for
treating discovery in whistleblower cases differently from how it is
treated in Title VII cases and that it is inconsistent with the
interests of justice and Congressional intent to limit the ability of
whistleblowers to obtain evidence in discovery while holding them to
the same evidentiary burden applicable in Title VII cases. Ewing,
Renner, and Zuckerman suggested that instead of limiting discovery,
hearings could be expedited by requiring parties to comply with the
initial disclosure requirements under Federal Rules of Civil Procedure
26(a)(1), by shortening the time permitted for discovery, and by
providing that ALJs can make adverse inferences of unlawful retaliation
based on a respondent's failure to respond fully and completely to
discovery requests. They also commented that hearings could be
expedited by requiring parties to provide discovery responses in
searchable electronic forms when a party has the responsive information
in such forms. GAP also commented that the Department should clarify
that it will not be considered bad faith ``to seek discovery; seek
reasonable delays to allow discovery; or to accommodate the schedules
of the parties, their counsel or the ALJ.'' Suggesting that most delays
in administrative cases occur either at the investigative stage or
during ARB review, GAP added that complainants should not be penalized
for necessary delays at the hearing stage.
The provisions and statements to which GAP, NWC, Ewing, Newport,
Renner, and Zuckerman object were intended by OSHA to implement
Congress's intent that administrative whistleblower hearings under the
ERA proceed expeditiously. See 42 U.S.C. 5851(b)(2)(A) and (b)(4). OSHA
believes that the short time frames provided under the whistleblower
statutes generally, as well as the provision in Section 211 of the ERA
providing for de novo review in district court, illustrate a
congressional intent that the Department expedite its administrative
hearings and procedures. Nevertheless, after carefully considering the
comments, OSHA has decided to remove the regulatory provision in the
rule stating that ALJs have broad discretion to limit discovery. The
provision essentially reiterates authority that ALJs currently possess
under their procedural rules at 29 CFR 18.14--18.21, which permit
judges to limit discovery in appropriate circumstances as well as to
make adverse inferences where parties fail to comply with their
discovery orders. Accordingly, the provision is not necessary. In
response to GAP's comments, OSHA also has eliminated from the preamble
the suggestion that a complainant's attempts to engage in extensive
discovery when prosecuting or defending a claim before an ALJ might
constitute a presumption of bad faith delay. And while OSHA agrees that
it would be beneficial for parties to provide discovery responses in
searchable electronic formats, it does not believe that it is
appropriate for these regulations to specify how discovery in a
particular case should proceed. The final rule now adopts the rules of
evidence of the Office of Administrative Law Judges at 29 CFR part 18,
subpart B, as well as the rules of practice at subpart A. Because it is
no longer necessary for this rule to address evidentiary matters,
paragraph (d) of this section has been deleted.
NWC commented regarding the preamble's discussion of this section
that OSHA should not permit an employee to enter into an agreement to
delay filing a complaint in district court because the jurisdictional
time period for filing such an action cannot be altered by regulation.
Rather, NWC commented that OSHA should add to section 24.107 a
procedure in cases where third-party witnesses refuse to testify that
permits employees to seek stays of their administrative proceedings so
that they may file district court complaints once the one-year ``kick-
out'' period has passed. NWC believes that such a procedure would
encourage third-party witnesses who cannot be compelled by subpoena to
testify in a whistleblower case to voluntarily appear before an ALJ
proceeding. While third-party witnesses may be more inclined to
voluntarily testify at ALJ hearings as an alternative to being
compelled to testify in district court pursuant to a subpoena, OSHA
does not believe that a special regulatory procedure to enable
complainants to seek stays prior to filing in district court is
necessary; the regulations do not prohibit an employee from seeking a
stay from an ALJ based on his or her intention to file a de novo action
in district court.
Finally, James F. Newport commented that the new rule shifts the
cost of attending hearings to the complainant by removing the
requirement that the hearing be held within 75 miles of the
complainant's residence (see former section 24.6(c)). Newport commented
that this change could discourage complainants from pursuing a case
because of the financial burden. OSHA does not believe that the removal
of the requirement that the hearing be held within 75 miles of the
complainant's residence will discourage complainants from pursuing a
case due to financial burden. This rule provides that the rules of
practice and procedures for administrative hearings before the OALJ
should apply to ALJ hearings. The OALJ's rules of practice and
procedure provide, at 29 CFR 18.27(c): ``Unless otherwise required by
statute or regulations, due regard shall be given to the convenience of
the parties and the witnesses in selecting a place for the hearing.''
This same provision has governed the scheduling of hearings under
regulations implementing the whistleblower protection provisions of
AIR21, 29 CFR part 1979; SOX, 29 CFR part 1980; and PSIA, 29 CFR part
1981. No evidence has been submitted to suggest that complainants have
been discouraged from pursuing cases under those statutes out of
concern for the potential location of the hearing.
Section 24.108 Role of Federal Agencies
This new section was added to conform these regulations to the
majority of OSHA's other whistleblower regulations. As noted above, the
substance of this section formerly was set forth under paragraphs (f)
and (g) of section 24.6, the section covering hearings. No substantive
changes are intended. Under the ERA and the environmental whistleblower
statutes, OSHA does not ordinarily appear as a party in the proceeding.
The Secretary has found that in most whistleblower cases, parties have
been ably represented and the public interest has not required the
Department's participation. Nevertheless, the Assistant Secretary, at
his or her discretion, may participate as a party or amicus curiae at
any time in the administrative proceedings. For example, the Assistant
Secretary may exercise his or her discretion to prosecute the case in
the administrative proceeding before an ALJ; petition for review of a
decision of an ALJ, including a decision based on a settlement
agreement between the complainant and the respondent, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the ARB proceeding.
Although we anticipate that ordinarily the Assistant Secretary will not
participate, the Assistant Secretary may choose to
[[Page 2816]]
do so in appropriate cases, such as cases involving important or novel
legal issues, large numbers of employees, alleged violations which
appear egregious, or where the interests of justice might require
participation by the Assistant Secretary. The Environmental Protection
Agency, the Nuclear Regulatory Commission, and the Department of
Energy, at those agencies' discretion, also may participate as amicus
curiae at any time in the proceedings.
NWC commented that when a State agency is named as a party, OSHA
should be required to intervene or participate as a party in the
proceeding. In support of this comment, NWC stated that the public
interest would be served if OSHA intervened in every case in which a
State agency is a named respondent because Congress intended that the
whistleblower provisions of the six environmental acts cover State
agencies. Richard R. Renner and Jason M. Zuckerman commented that OSHA
should consider intervening on behalf of complainants, especially where
a complainant is pro se, disputing OSHA's statement in the preamble
that ``in most whistleblower cases, parties have been ably represented
and the public interest has not required the Department's
participation.''
OSHA continues to believe that its participation as a routine
matter in all whistleblower cases is neither necessary nor an effective
use of its resources. Nevertheless, as noted above, it is OSHA's policy
to consider participating in cases in which the Assistant Secretary
considers the agency's participation to be in the interests of justice.
The inability of complainants to pursue their own actions against State
employers and their lack of representation by counsel are among the
factors that OSHA considers when exercising its discretion to intervene
as a party or as an amicus.
Section 24.109 Decision and Order of the Administrative Law Judge
This section sets forth the content of the decision and order of
the ALJ, and includes the standard for finding a violation under the
environmental statutes and the ERA. The section further provides that
the Assistant Secretary's determination to dismiss the complaint
without an investigation or without a complete investigation pursuant
to section 24.104 is not subject to review. Thus, paragraph (c) of
section 24.109 clarifies that the Assistant Secretary's determinations
on whether to proceed with an investigation under the ERA and whether
to make particular investigative findings under any of the statutes
subject to this part 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 the Assistant Secretary to conduct an
investigation or make further factual findings. Paragraph (c) further
clarifies that the ALJ will either hear a case on the merits or dispose
of the matter without a hearing if appropriate. A full discussion of
the burdens of proof used by the Department of Labor to resolve
whistleblower cases under this part is set forth above in the
discussion of section 24.104.
This section also has been revised to eliminate the requirement
under the ERA for the ALJ to issue a preliminary order of reinstatement
separate from the findings. The section clarifies that when an ALJ's
decision finds that the complaint has merit and orders relief, the
order will be effective immediately upon its receipt by the respondent,
except for that part of the order awarding compensatory damages.
Congress intended that whistleblowers under the ERA be reinstated and
provided additional interim relief based upon the ALJ's order even
while the decision is on review with the ARB. The previous regulations
have caused confusing delays to the complainant's right to immediate
reinstatement. See, e.g., McNeill v. Crane Nuclear, Inc., ARB Case No.
02-002, 2002 WL 31932543, at *1-*2 (Admin. Review Bd. Dec. 20, 2002).
The Secretary intends that, by eliminating any requirement that the ALJ
``shall also issue a preliminary order providing [all of the] relief''
specified in the recommended order before an interim order becomes
effective, confusion will be avoided and congressional intent to have
complainants promptly reinstated based upon a meritorious ALJ decision
will be better effectuated. Id. Furthermore, the ALJ's order will be
effective immediately whether or not the ALJ designates the decision
and/or order as recommended.
The substance of the rest of this section was formerly found in
section 24.7. The requirement that the ALJ issue a decision within 20
days after the conclusion of the hearing has been eliminated because
procedures for issuing decisions, including their timeliness, are
addressed by the Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges at 29 CFR
18.57.
GAP commented that the language in section 24.109(b) discussing the
burdens of proof should be clarified. GAP commented that the regulation
should be changed to state affirmatively with respect to the
respondent's burden that ``relief must be ordered unless'' the
respondent carries its burden of proof, rather than to state that
``relief may not be ordered'' if the respondent demonstrates by clear
and convincing evidence under the ERA, or by preponderance of the
evidence under the environmental statutes, that it would have taken the
same action in the absence of protected activity. The language used in
the regulation, however, accurately reflects the statutory language in
section 211 of the ERA and, consistent with that language, the
regulation retains language indicating that relief may not be ordered
if the respondent proves by a preponderance of the evidence under the
environmental statutes that it would have taken the same action in the
absence of protected activity.
Section 24.110 Decision and Orders of the Administrative Review Board
The decision of the ALJ is the final decision of the Secretary if
no timely petition for review is filed with the ARB. Upon the issuance
of the ALJ's decision, the parties have 10 business days within which
to petition the ARB for review of that decision, or it becomes the
final decision of the Secretary and is not subject to judicial review.
The date of the postmark, facsimile transmittal, or e-mail
communication 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 appeal provisions in
this part have been revised, consistent with the majority of OSHA's
other whistleblower regulations, to provide that an appeal to the ARB
is no longer a matter of right but is accepted at the discretion of the
ARB. Congress intended these whistleblower actions to be expedited and
this change may assist in furthering that goal. The parties should
identify in their petitions for review the legal conclusions and orders
to which exception is taken, or the exceptions will ordinarily be
deemed waived. The ARB has 30 days to decide whether to grant the
petition for review. If the ARB does not grant the petition, the
decision of the ALJ becomes the final decision of the Secretary. The
ERA, CAA, SDWA, and TSCA contain a 90-day timeframe for issuing final
agency decisions. Notwithstanding this short timeframe, the Secretary
believes that it is appropriate to give the ARB 30 days in which to
decide whether to grant review; as stated above, the Secretary believes
that in amending the ERA in August 2005, Congress recognized that
[[Page 2817]]
the Department appropriately could take up to one year to complete the
investigatory and adjudicative processing of a whistleblower complaint
under these statutes. If a timely petition for review is filed with the
ARB, any relief ordered by the ALJ, except for that ordered under the
ERA, is inoperative while the matter is pending before the ARB. The
relief ordered by the ALJ under the ERA is effective immediately except
for that portion awarding compensatory damages. This section further
provides that, when the ARB accepts a petition for review, the ALJ's
factual determinations will be reviewed under the substantial evidence
standard.
This section also provides that in the exceptional case, the ARB
may grant a motion to stay an ALJ's order of relief under the ERA,
which otherwise will be effective while review is conducted by the ARB.
The Secretary believes that a stay of an ALJ's order of relief under
the ERA only would be appropriate where the respondent can establish
the necessary criteria for equitable injunctive relief, i.e.,
irreparable injury, likelihood of success on the merits, and a
balancing of possible harms to the parties and the public favors a
stay.
Comments on section 24.110 were received by NWC, William H. Ewing,
Richard R. Renner, and Jason M. Zuckerman. NWC commented that the 10-
day period for filing objections is too short and that parties should
be given between 30 and 60 days to petition for review, depending on
the level of specificity required in the petition. Ewing, Renner, and
Zuckerman also commented that the time period for petitioning for
review by the ARB was too short and suggested a 30-day period to
petition for review. In addition, Ewing, Renner, and Zuckerman
suggested that rather than provide that exceptions not raised in the
petition for review ordinarily will be waived, the regulations should
permit parties to supplement the reasons for seeking review when filing
their opening briefs. They commented that to the extent that the ARB
needs to determine whether there are issues meriting review, the
regulations can require that a party file a petition that identifies
good grounds for review, and permit the party to raise additional
assignments of error in the brief.
OSHA believes that 10 business days, which also is the time frame
under AIR21 (see 29 CFR 1979.110(a)) and under SOX (see 29 CFR
1980.110(a)), is sufficient time to petition for review of an ALJ
decision, particularly in light of the fact that the rule uses the date
of filing to determine timeliness rather than the date of the ARB's
receipt of the petition. Furthermore, OSHA believes that to enable the
ARB to determine whether to accept review, it is necessary that the
petition for review identify the rulings to which the party seeking
review takes exception. Nevertheless, it is not necessary that the
petition identify each factual finding to which the party objects.
Rather, it is sufficient that the petition generally identify the legal
conclusions that are alleged to be erroneous. OSHA has amended these
regulations accordingly.
NWC commented that these regulations should revert to the previous
practice that required the ARB to review the entire record on appeal de
novo. As indicated above, in providing that the ARB will review factual
determinations under the substantial evidence standard, these
regulations apply the standard of review that the ARB applies in
reviewing ALJ decisions under the whistleblower provisions of AIR21,
SOX, and PSIA. OSHA believes that, because the ARB is an appellate
body, it is appropriate for the ARB to give special deference to the
findings of the trier of fact. See Henrich v. Ecolab, Inc., No 05-030,
2007 WL 1578490, at *4 (Admin. Review Bd. May 30, 2007) (``As we and
our predecessors often have noted, the Board is an appellate body. We
review ALJ decisions for error; we do not simply sit as a second-tier
fact-finder.''). Accordingly, no change to the standard of review is
necessary.
Finally, OSHA is changing the regulation at section 24.110(b) to
correct the inadvertently erroneous statement that when the ARB denies
a petition for review of an ALJ's decision, judicial review is not
available. Although no comments were received regarding this error,
OSHA is amending the rule to clarify that judicial review is available
in cases where the ARB denies review of an ALJ decision for which
appropriate review was sought.
Subpart C--Miscellaneous Provisions
Section 24.111 Withdrawal of Complaints, Objections, and Petitions for
Review; Settlement
This section provides for procedures and time periods for
withdrawal of complaints, the withdrawal of findings by the Assistant
Secretary, and the withdrawal of objections to findings. It also
provides for approval of settlements at the investigative and
adjudicative stages of the case. The regulations reflect that
settlement agreements under the statutory provisions of the ERA, CAA,
SDWA, and TSCA must be reviewed and approved by the Secretary to ensure
that they are just and reasonable and in the public interest. See
Beliveau v. United States Dep't of Labor, 170 F.3d 83, 86 (1st Cir.
1999); Macktal v. Secretary of Labor, 923 F.2d 1150, 1154 (5th Cir.
1991). Although it has been OSHA's practice to review settlements for
approval under all the environmental whistleblower statutes, it is
required by statute only under the ones noted above. See Bertacchi v.
City of Columbus--Division of Sewerage & Drainage, ARB Case No. 05-155
(April 13, 2006). Notwithstanding this statutory distinction, the
Department encourages the parties to submit all settlements for review
and approval, even those arising under the CERCLA, SWDA, and FWPCA. We
note that a settlement that has not been reviewed and approved by the
Secretary will not be considered a final order enforceable under
section 24.113.
One comment was received regarding section 24.111. NWC commented
that the section should be dropped and that the former practice of
liberally permitting employees to withdraw claims, without prejudice,
should be continued, especially under the six environmental acts, in
which employees are required to file claims within 30 days. NWC
commented that any restriction on the right to freely withdraw claims
without prejudice will chill an employee's willingness to file a claim
and punish employees who simply needed to protect their procedural
rights. OSHA does not believe that section 24.111 hinders a
complainant's ability to withdraw his or her complaint prior to the
filing of objections to the Assistant Secretary's findings and/or
order. However, when OSHA is aware that a withdrawal is requested after
a settlement has been reached between the complainant and the
respondent, the Assistant Secretary's approval is necessary to ensure
that the settlement is just, reasonable, and in the public interest.
This policy, which is required by statute in most instances, recognizes
that:
The Department of Labor does not simply provide a forum for
private parties to litigate their private employment discrimination
suits. Protected whistleblowing under the ERA may expose not just
private harms but health and safety hazards to the public. The
Secretary represents the public interest by assuring that
settlements adequately protect whistleblowers.
Beliveau, 170 F.3d at 88 (quoting Hoffman v. Fuel Econ. Contracting,
97-ERA-33 (Sec'y Order Denying Request to Reconsider, Aug. 4, 1989);
see also Thompson v. U. S. Dep't of Labor, 885 F.2d 551, 556 (9th Cir.
1989) (Secretary must approve all settlement agreements under the ERA).
[[Page 2818]]
Significant revisions are being made to paragraph (c), which
addresses situations in which parties seek to withdraw either
objections to the Assistant Secretary's findings and/or preliminary
order or petitions for review of ALJ decisions. Paragraph (c) provides
that a party may withdraw its objections to the Assistant Secretary's
findings and/or preliminary order at any time before the findings and
preliminary order become final by filing a written withdrawal with the
ALJ. Similarly, if a case is on review with the ARB, a party may
withdraw its 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, depending on where the case is pending,
will determine whether to approve the withdrawal of the objections or
the petition for review. Paragraph (c) clarifies that if the ALJ
approves a request to withdraw objections to the Assistant Secretary's
findings and/or preliminary order, and there are no other pending
objections, the Assistant Secretary's findings and preliminary order
will become the final order of the Secretary. Likewise, 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. Finally, paragraph (c) provides that if objections or a
petition for review are withdrawn because of settlement, the settlement
must be submitted for approval in accordance with paragraph (d).
Section 24.112 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 to submit the record of proceedings to the
appropriate court pursuant to the Federal Rules of Appellate Procedure
and the local rules of such court. Paragraph (d) reflects that original
jurisdiction for judicial review of a decision issued under the
Comprehensive Environmental Response, Compensation and Liability Act is
with the district courts rather than the appellate courts. See 42
U.S.C. 9610(b) and 9613(b). The paragraph also reflects, however, that
when an agency decision is based on other statutes that provide for
direct review in the court of appeals, principles of judicial economy
and consistency justify review of the entire proceeding in the court of
appeals. See Ruud v. U. S. Dep't of Labor, 347 F.3d 1086, 1090 (9th
Cir. 2003) (``[T]he court of appeals should entertain a petition to
review an agency decision made pursuant to the agency's authority under
two or more statutes, at least one of which provides for direct review
in the court of appeals, where the petition involves a common factual
background and raises a common legal question. Consolidated review of
such a petition avoids inconsistency and conflicts between the district
and appellate courts while ensuring the timely and efficient resolution
of administrative cases.''); see also Shell Oil Co. v. F.E.R.C., 47
F.3d 1186, 1195 (DC Cir. 1995) (``[W]hen an agency decision has two
distinct bases, one of which provides for exclusive jurisdiction in the
court of appeals, the entire decision is reviewable exclusively in the
appellate court.'') (citations and internal question marks omitted). No
comments were received on this section.
Section 24.113 Judicial Enforcement
This section describes the Secretary's power under several of the
statutes listed in section 24.100(a) to obtain judicial enforcement of
orders and the terms of a settlement agreement. It also provides for
enforcement of orders of the Secretary by the person on whose behalf
the order was issued under the ERA and the CAA. No comments were
received on this section.
Section 24.114 District Court Jurisdiction of Retaliation Complaints
Under the Energy Reorganization Act
This section sets forth the ERA provision allowing complainants to
bring an action in district court for de novo review if there has been
no final decision of the Secretary within one year of the filing of the
complaint and there is no delay due to the complainant's bad faith. It
provides that complainants will give notice 15 days in advance of their
intent to file a complaint in district court. This provision
authorizing a Federal court complaint is similar to those under the
whistleblower provisions of SOX, STAA, the National Transit Systems
Security Act of 2007, and the Federal Railroad Safety Act. In the
interim final rule, the Secretary noted that this statutory scheme
created the possibility that a complainant would file a complaint in
district court after having litigated a claim before the agency and
having received a decision from an ALJ or the ARB. The Secretary
believed that it would be a waste of the resources of the parties, the
Department, and the courts for complainants to pursue duplicative
litigation. Accordingly, the Secretary suggested that the Federal
courts might apply principles of issue or claim preclusion if a
complainant brought a new action in Federal court following extensive
litigation before the Department that resulted in a decision by an ALJ
or the ARB. The Secretary also stated that where an administrative
hearing had been completed and a matter was pending before an ALJ or
the ARB for a decision, a Federal court also might treat a complaint as
a petition for mandamus and order the Department to issue a decision
under appropriate time frames.
Two comments were received regarding section 24.114. NWC commented
that because the rules concerning issue and claim preclusion only apply
to an agency's final order and an ALJ's decision is not a final order,
the Department should not advise Federal courts or parties that res
judicata and/or collateral estoppel principles may apply. NWC further
commented that because once an employee exhausts his or her
administrative remedies, the Department cannot legally implement a rule
restricting an employee's right to file in Federal court, it should not
urge a Federal court to remand a case back to the Department. NWC
suggested that a potential waste of resources is not at issue because
the discovery and hearing testimony obtained during an administrative
proceeding may be used in the Federal court proceeding.
In response to these comments, OSHA has reconsidered the statements
made in the interim final rule. OSHA recognizes that there is no
statutory basis for including preclusion principles in these
regulations, and that the ERA does not delegate authority to the
Secretary to regulate litigation in the Federal district courts. See
Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649-50 (1990).
Accordingly, the language in the preamble addressing issue preclusion
principles and mandamus has been removed.
Also on further consideration, the Secretary does not believe that
it is reasonable to construe the statute to permit a complainant to
initiate an action in Federal court after the Secretary issues a final
decision, even if the date of the final decision is more than one year
after the filing of the complaint. In the Secretary's view, 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 courts of
appeals. The regulation has
[[Page 2819]]
been reworded in accordance with this position.
Finally, GAP commented that OSHA's requirement under section
24.114(b) that a complainant file a notice with the agency of his or
her intention to seek relief in district court within 15 days of filing
his or her de novo action in district court goes beyond the ERA's
requirements.
Although the 15-day notice provision is not required by statute,
OSHA believes that this notice provision falls within the scope of
these procedural rules.
Section 24.115 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 the statutes listed in section 24.100(a) requires. No
comments were received on this section.
Appendix A--Your Rights Under the ERA
The notice that employers are required to post under Section 211(i)
of the ERA has been revised to reflect the 2005 amendments.
Specifically, the notice now reflects that the definition of
``employer'' has been expanded and that the employee has a right to
file a complaint in district court if the Secretary has not issued a
final decision within one year of the filing of the complaint and the
delay is not due to the bad faith of the employee. As noted above, we
also have substituted the term ``retaliation'' for ``discrimination.''
The notice has also been revised to clarify that a complaint may be
filed orally or in writing and that if a complainant is not able to
file the complaint in English, the complaint may be filed in any
language.
One comment was received regarding Appendix A. GAP commented that
the notice should be clarified to state that an employee is protected
for raising concerns about a suspected violation of regulations or
orders issued by the NRC or DOE. OSHA does not believe that changes to
this notice are required because the protected activity listed on the
notice applies the language used in the statute. Nevertheless, OSHA
notes that the Secretary has held that the reporting of possible
violations of NRC regulations is protected activity under the ERA. See
McDonald v. University of Missouri, No. 90-ERA-59, 1995 WL 848132, *5
(DOL Off. of Adm. App. Mar. 21, 1995). A similar analysis suggests that
the reporting of possible violations of relevant DOE regulations also
is protected activity under the ERA. GAP further commented that in the
section describing prohibited activity, the use of the word
``retaliate'' should be replaced with ``discriminate'' to make the
language of the notice consistent with the statutory language. For the
reasons discussed above in response to comments to section 24.102, OSHA
does not believe that it is necessary or advisable to replace the word
``retaliate'' in the required notice with the word ``discriminate.''
IV. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, section 24.103) which was previously reviewed and approved
for use by the Office of Management and Budget (``OMB'') and assigned
OMB control number 1218-0236 under the provisions of the Paperwork
Reduction Act of 1995 (Pub. L. 104-13).
V. Administrative Procedure Act
The notice and comment rulemaking procedures of Section 553 of the
Administrative Procedure Act (``APA'') do not apply to ``interpretive
rules, general statements of policy, or rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency
procedure and practice within the meaning of that section. Therefore,
publication in the Federal Register of a notice of proposed rulemaking
and request for comments was not required. Although this rule was not
subject to the notice and comment procedures of the APA, the Assistant
Secretary sought and considered comments to enable the agency to
improve the rules by taking into account the concerns of interested
persons.
Furthermore, because this rule is procedural 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. The Assistant Secretary also finds good cause to provide
an immediate effective date for this 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 Order 12866; Unfunded Mandates Reform Act of 1995; Small
Business Regulatory Enforcement Fairness Act of 1996; Executive Order
13132
The Department has concluded that this rule is not a ``significant
regulatory action'' within the meaning of Executive Order 12866 because
it is not likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or Tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in Executive Order 12866. Therefore, no
regulatory impact analysis has been prepared.
Because this rulemaking is procedural in nature it is not expected
to have a significant economic impact; therefore no statement is
required under Section 202 of the Unfunded Mandates Reform Act of 1995.
Furthermore, because this is a rule of agency procedure or practice, it
is not a ``rule'' within the meaning of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 804(3)(C)) and does not
require congressional review. 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 Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation primarily implements procedures necessitated by
statutory amendments enacted by Congress. Additionally, the regulatory
revisions are necessary for the sake of consistency with the regulatory
provisions governing procedures under the other whistleblower statutes
administered by the Secretary. Furthermore, no certification to this
effect is required and no regulatory flexibility analysis is required
because no proposed rule has been issued.
Document Preparation. This document was prepared under the
direction of the Assistant Secretary, Occupational Safety and Health
Administration, U.S. Department of Labor.
[[Page 2820]]
List of Subjects in 29 CFR Part 24
Administrative practice and procedure, Employment, Environmental
protection, Investigations, Reporting and recordkeeping requirements,
Whistleblowing.
Signed in Washington, DC on January 7, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble, part 24 of
title 29 of the Code of Federal Regulations is revised to read as
follows:
PART 24--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISIONS OF SIX ENVIRONMENTAL
STATUTES AND SECTION 211 OF THE ENERGY REORGANIZATION ACT OF 1974,
AS AMENDED
Subpart A--Complaints, Investigations, Issuance of Findings
Sec.
24.100 Purpose and scope.
24.101 Definitions.
24.102 Obligations and prohibited acts.
24.103 Filing of retaliation complaint.
24.104 Investigation.
24.105 Issuance of findings and orders.
Subpart B--Litigation
24.106 Objections to the findings and order and request for a
hearing.
24.107 Hearings.
24.108 Role of Federal agencies.
24.109 Decision and orders of the administrative law judge.
24.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
24.111 Withdrawal of complaints, objections, and findings;
settlement.
24.112 Judicial review.
24.113 Judicial enforcement.
24.114 District court jurisdiction of retaliation complaints under
the Energy Reorganization Act.
24.115 Special circumstances; waiver of rules.
Appendix A to Part 24--Your Rights Under the Energy Reorganization
Act
Authority: 15 U.S.C. 2622; 33 U.S.C. 1367; 42 U.S.C. 300j-
9(i)BVG, 5851, 6971, 7622, 9610; Secretary of Labor's Order No. 5-
2007, 72 FR 31160 (June 5, 2007); Secretary of Labor's Order No. 1-
2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).
Subpart A--Complaints, Investigations, Issuance of Findings
Sec. 24.100 Purpose and scope.
(a) This part implements procedures under the employee protection
(or ``whistleblower'') provisions for which the Secretary of Labor has
been given responsibility pursuant to the following Federal statutes:
Safe Drinking Water Act, 42 U.S.C. 300j-9(i); Federal Water Pollution
Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C.
2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42
U.S.C. 7622; Energy Reorganization Act of 1974, 42 U.S.C. 5851; and
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9610.
(b) This part establishes procedures pursuant to the Federal
statutory provisions listed in paragraph (a) of this section for the
expeditious handling of retaliation complaints made by employees, or by
persons acting on their behalf. These rules, together with those rules
codified at 29 CFR part 18, set forth the procedures for submission of
complaints under the Federal statutory provisions listed in paragraph
(a) of this section, investigations, issuance of findings, objections
to findings, litigation before administrative law judges (``ALJ''),
issuance of decisions and orders, post-hearing administrative review,
and withdrawals and settlements.
Sec. 24.101 Definitions.
Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under any of the statutes listed in Sec.
24.100(a).
Business days means days other than Saturdays, Sundays, and Federal
holidays.
Complainant means the employee who filed a complaint under any of
the statutes listed in Sec. 24.100(a) or on whose behalf a complaint
was filed.
OSHA means the Occupational Safety and Health Administration of the
United States Department of Labor.
Respondent means the employer named in the complaint, who is
alleged to have violated any of the statutes listed in Sec. 24.100(a).
Secretary means the Secretary of Labor or persons to whom authority
under any of the statutes listed in Sec. 24.100(a) has been delegated.
Sec. 24.102 Obligations and prohibited acts.
(a) No employer subject to the provisions of any of the statutes
listed in Sec. 24.100(a), or to the Atomic Energy Act of 1954 (AEA),
42 U.S.C. 2011 et seq., may discharge or otherwise retaliate against
any employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the employee, or any
person acting pursuant to the employee's request, engaged in any of the
activities specified in this section.
(b) It is a violation for any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, or in any other
manner retaliate against any employee because the employee has:
(1) Commenced or caused to be commenced, or is about to commence or
cause to be commenced, a proceeding under one of the statutes listed in
Sec. 24.100(a) or a proceeding for the administration or enforcement
of any requirement imposed under such statute;
(2) Testified or is about to testify in any such proceeding; or
(3) Assisted or participated, or is about to assist or participate,
in any manner in such a proceeding or in any other action to carry out
the purposes of such statute.
(c) Under the Energy Reorganization Act, and by interpretation of
the Secretary under any of the other statutes listed in Sec.
24.100(a), it is a violation for any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner
retaliate against any employee because the employee has:
(1) Notified the employer of an alleged violation of such statute
or the AEA of 1954;
(2) Refused to engage in any practice made unlawful by such statute
or the AEA of 1954, if the employee has identified the alleged
illegality to the employer; or
(3) Testified or is about to testify before Congress or at any
Federal or State proceeding regarding any provision (or proposed
provision) of such statute or the AEA of 1954.
(d)(1) Every employer subject to the Energy Reorganization Act of
1974, as amended, shall prominently post and keep posted in any place
of employment to which the whistleblower provisions of the Act apply, a
fully legible copy of the notice prepared by OSHA, printed as appendix
A to this part, or a notice approved by the Assistant Secretary that
contains substantially the same provisions and explains the
whistleblower provisions of the Act and the regulations in this part.
Copies of the notice prepared by OSHA may be obtained from the
Assistant Secretary for Occupational Safety and Health, U.S. Department
of Labor, Washington, DC 20210, from local OSHA offices, or from OSHA's
Web site at http://www.osha.gov.
(2) Where the notice required by paragraph (d)(1) of this section
has not been posted, the requirement in Sec. 24.103(d)(2) that a
complaint be filed with the Assistant Secretary within 180
[[Page 2821]]
days of an alleged violation will be inoperative, unless the respondent
establishes that the complainant had knowledge of the material
provisions of the notice. If it is established that the notice was
posted at the employee's place of employment after the alleged
retaliatory action occurred or that the complainant later obtained
knowledge of the provisions of the notice, the 180 days will ordinarily
run from whichever of those dates is relevant.
(e) This part shall have no application to any employee who, acting
without direction from his or her employer (or the employer's agent),
deliberately causes a violation of any requirement of any of the
statutes listed in Sec. 24.100(a) or the AEA of 1954.
Sec. 24.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been
retaliated against by an employer in violation of any of the statutes
listed in Sec. 24.100(a) may file, or have filed by any person on the
employee's behalf, a complaint alleging such retaliation.
(b) Nature of Filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If a complainant is not able to file the
complaint in English, the complaint may be filed in any language.
(c) Place of Filing. The complaint should be filed with the OSHA
Area Director responsible for enforcement activities in the
geographical area where the employee resides or was employed, but may
be filed with any OSHA officer or employee. Addresses and telephone
numbers for these officials are set forth in local directories and at
the following Internet address: http://www.osha.gov.
(d) Time for Filing. (1) Except as provided in paragraph (d)(2) of
this section, within 30 days after an alleged violation of any of the
statutes listed in Sec. 24.100(a) occurs (i.e., when the retaliatory
decision has been both made and communicated to the complainant), an
employee who believes that he or she has been retaliated against in
violation of any of the statutes listed in Sec. 24.100(a) may file, or
have filed by any person on the employee's behalf, a complaint alleging
such retaliation. The date of the postmark, facsimile transmittal, e-
mail communication, telephone call, hand-delivery, delivery to a third-
party commercial carrier, or in-person filing at an OSHA office will be
considered the date of filing. The time for filing a complaint may be
tolled for reasons warranted by applicable case law.
(2) Under the Energy Reorganization Act, within 180 days after an
alleged violation of the Act occurs (i.e., when the retaliatory
decision has been both made and communicated to the complainant), an
employee who believes that he or she has been retaliated against in
violation of the Act may file, or have filed by any person on the
employee's behalf, a complaint alleging such retaliation. The date of
the postmark, facsimile transmittal, e-mail communication, telephone
call, hand-delivery, delivery to a third-party commercial carrier, or
in-person filing at an OSHA office will be considered the date of
filing. The time for filing a complaint may be tolled for reasons
warranted by applicable case law.
(e) Relationship to Section 11(c) complaints. A complaint filed
under any of the statutes listed in Sec. 24.100(a) alleging facts that
would also constitute a violation of Section 11(c) of the Occupational
Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be a
complaint under both Section 11(c) and the applicable statutes listed
in Sec. 24.100(a). Similarly, a complaint filed under Section 11(c)
that alleges facts that would also constitute a violation of any of the
statutes listed in Sec. 24.100(a) will be deemed to be a complaint
under both section 11(c) and the applicable statutes listed in Sec.
24.100(a). Normal procedures and timeliness requirements under the
respective statutes and regulations will be followed.