Findings and preliminary orders

OSHA must issue written findings within 60 days of the filing of the complaint. See 1978.105(a).

• The 60-day clock starts on the date the complaint is filed.
• If OSHA needs more time, the regulation still states the findings are to be issued within 60 days after considering the investigation.

If OSHA finds reasonable cause, the preliminary order can require reinstatement, backpay with interest, compensatory damages, affirmative abatement actions, and up to $250,000 in punitive damages. See 1978.105(a)(1).

• Reinstatement must restore the complainant to the same position with the same pay, terms, conditions, and privileges.
• Backpay includes interest compounded daily using the rate under 26 U.S.C. 6621, and the order may also require payment of litigation costs, expert fees, and reasonable attorney fees.
• The preliminary order may also require affirmative action to abate the violation.

Interest on backpay is calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and is compounded daily. See 1978.105(a)(1).

• The regulation requires daily compounding of the applicable tax underpayment rate for the backpay interest calculation.

Yes, a preliminary order may require the respondent to pay punitive damages up to $250,000. See 1978.105(a)(1).

• The amount awarded (up to $250,000) depends on the facts and the Assistant Secretary's determination.

If OSHA concludes that a violation has not occurred, OSHA will notify the parties of that finding. See 1978.105(a)(2).

• The notice informs both complainant and respondent that OSHA found no reasonable cause to believe retaliation occurred.

OSHA will send the findings and any preliminary order by means that allow OSHA to confirm delivery to all parties of record and each party’s legal counsel if represented. See 1978.105(b).

• Examples of such means include methods that provide delivery confirmation (e.g., certified mail, courier with signature, or verifiable electronic service).
• The document will also inform the parties of their right to object and request a hearing.

When OSHA issues findings and a preliminary order, the Assistant Secretary will file a copy of the original complaint and the findings and/or order with the Chief Administrative Law Judge. See 1978.105(b).

• This filing initiates the administrative record and supports the parties' right to object and request a hearing.

The findings and any preliminary order will inform the parties of the right to object to the findings and/or the order and to request a hearing, and will provide the address of the Chief Administrative Law Judge or information for filing objections electronically. See 1978.105(b).

• That notice explains how to file an objection and where to send it (physically or electronically).

Findings and any preliminary order become effective 30 days after receipt by the respondent (or the respondent's counsel), or on the compliance date set in the preliminary order, whichever is later, unless a timely objection and hearing request is filed under 1978.106. See 1978.105(c).

• If the preliminary order sets a later compliance date, that later date controls the effectiveness of the order.
• A timely objection and request for hearing under 1978.106 delays the order from taking effect pending the administrative process.

Yes, any portion of a preliminary order requiring reinstatement is effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections. See 1978.105(c).

• Other parts of the order may be stayed by a timely objection and hearing request, but reinstatement cannot be delayed by such an objection.

The respondent should immediately comply with the reinstatement portion of the preliminary order because reinstatement is effective upon receipt regardless of objections. See 1978.105(c).

• The respondent may still file a timely objection and request a hearing under 1978.106 to challenge other aspects of the order, but must carry out reinstatement right away unless instructed otherwise by a court or judge.

Parties have the right to be notified of OSHA’s findings and to object to those findings and/or request a hearing before the Chief Administrative Law Judge. See 1978.105(b) and 1978.105(c).

• The findings/order will give the address or electronic filing information for the Office of Administrative Law Judges to submit objections or requests for hearing.
• Filing a timely objection and hearing request follows procedures in 1978.106.

Yes, OSHA can require affirmative action to abate the violation in a preliminary order when appropriate. See 1978.105(a)(1).

• Affirmative abatement can include steps to correct the practices or policies that led to retaliation (for example, policy changes or training), depending on what the Assistant Secretary deems appropriate.

If a party is represented by counsel, OSHA will send the findings and any preliminary order to the party and to the party’s legal counsel using delivery methods that allow OSHA to confirm receipt. See 1978.105(b).

• This ensures both the party and its attorney receive official notice and the information needed to object or request a hearing.

OSHA files a copy of the original complaint together with the findings and/or preliminary order with the Chief Administrative Law Judge at the same time it notifies the parties. See 1978.105(b).

• That filing creates the administrative record needed for any subsequent hearing under 1978.106.

If the respondent files a timely objection and requests a hearing under 1978.106, the preliminary order does not become effective during the pendency of that process except that any reinstatement requirement remains effective immediately upon receipt. See 1978.105(c).

• Other remedies in the preliminary order may be stayed while the hearing proceeds, but reinstatement must still be carried out upon receipt.