ALJ decisions and orders

The ALJ must include findings, conclusions, and an order, and the complainant must prove their claim by a preponderance of the evidence. See the requirement in 1978.109(a).

• "Preponderance of the evidence" means it is more likely than not that protected activity was a contributing factor in the employer's adverse action.
• The decision should set out the factual and legal basis the ALJ relied on when reaching conclusions and ordering remedies.

A respondent can avoid relief by proving with clear and convincing evidence that it would have taken the same adverse action even without the complainant's protected activity. See 1978.109(b).

• "Clear and convincing evidence" is a higher proof standard than preponderance and requires a firm belief or conviction in the truth of the employer's claim.
• Practically, this often means the employer must present strong contemporaneous documentation or other persuasive proof showing a nondiscriminatory reason that would have led to the same action.

No — the ALJ may not review the Assistant Secretary's decision to dismiss a complaint under 1978.104(e), and the case proceeds to the ALJ on the merits if there is jurisdiction. See 1978.109(c).

• The ALJ cannot remand the case for additional investigation solely because a dismissal might have been in error.
• If jurisdiction exists, the ALJ will either hear the case on the merits or dispose of it without a hearing if the facts warrant.

An ALJ may order remedies including abatement actions, reinstatement with the same pay and terms, compensatory damages (including back pay with interest and special damages), payment of litigation costs and fees, and punitive damages up to $250,000. See 1978.109(d)(1).

• Compensatory damages include backpay with interest and special damages sustained from the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.
• Punitive damages are capped at $250,000.
• The ALJ can also order affirmative action to abate ongoing violations.

Interest on backpay is calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily, as stated in 1978.109(d)(1).

• For practical compliance, use the current interest rate set under 26 U.S.C. 6621 for underpayments and apply daily compounding to the backpay award.

If the ALJ determines the respondent did not violate the law, the ALJ will issue an order denying the complaint. See 1978.109(d)(2).

• The denial order resolves the complaint on the merits and becomes part of the official record.

The ALJ's decision must be served on all parties, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor; any ALJ decision requiring reinstatement or lifting an Assistant Secretary reinstatement order becomes effective immediately upon the respondent's receipt of the decision. See 1978.109(e).

• Service must reach all listed recipients.
• For reinstatement relief, effectiveness is immediate upon the respondent receiving the decision.

For ALJ decisions issued on or after August 31, 2010, all portions of the ALJ order other than reinstatement become effective 14 days after the decision date unless a timely petition for review is filed with the Administrative Review Board (ARB), and the ALJ decision becomes the Secretary's final order unless the ARB accepts review. See 1978.109(e).

• A party seeking review must file a timely petition with the ARB within the statutory period to prevent the order from becoming final.
• If the ARB accepts review, it may modify or vacate the ALJ decision.

Yes — if the facts and circumstances warrant, the ALJ may dispose of the matter without a hearing. See 1978.109(c).

• This typically occurs when the written record and legal arguments permit a fair decision without live testimony.
• Even if the Assistant Secretary previously dismissed the complaint, the ALJ's authority to hear or dispose is limited to the jurisdictional and factual record available.

The complainant must first prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse action; if met, the respondent may then avoid relief only by proving with clear and convincing evidence that it would have taken the same action absent the protected activity. See 1978.109(a) and 1978.109(b).

• This creates a two-step proof framework: (1) complainant shows contribution by protected activity; (2) employer rebuts with a stronger clear-and-convincing showing of inevitability.
• Meeting the initial burden does not automatically mean relief will be ordered if the employer satisfies its higher rebuttal burden.

Yes — an ALJ can award reasonable attorney fees, expert witness fees, and litigation costs as part of compensatory damages if the ALJ finds a violation. See 1978.109(d)(1).

• The award should be reasonable and tied to costs the complainant actually incurred as a result of the retaliation.
• Documentation of fees and expenses is important for the ALJ's determination.

'Affirmative action to abate the violation' means the ALJ can require steps the respondent must take to stop the violation and prevent recurrence, such as policy changes, training, or other corrective measures. See 1978.109(d)(1).

• Examples include reinstating policies, providing anti-retaliation training, changing workplace procedures, or other remedial measures tailored to correct the behavior that led to the retaliation.

If no timely petition for review is filed with the ARB, the ALJ decision becomes the final order of the Secretary for decisions issued on or after August 31, 2010. See 1978.109(e).

• Once final, the order may be enforced like any administrative final order unless later overturned by a court.

Yes — the ALJ's decision must contain appropriate findings and conclusions which should identify the legal standards applied, including the preponderance-of-evidence standard for the complainant. See 1978.109(a).

• Clear articulation of the legal standard and how evidence meets or fails to meet it helps the parties and any reviewing body understand the basis for the ruling.

Contemporaneous, objective evidence showing legitimate reasons for the adverse action—such as documented poor performance, progressive discipline records, or a documented, nondiscriminatory business necessity—best supports a clear-and-convincing defense. See 1978.109(b).

• Strong written records, dated performance evaluations, disciplinary notices, or business plans can be persuasive.
• Testimony that is corroborated by contemporaneous documents strengthens the employer's proof.

Yes — punitive damages are capped at $250,000 as part of the ALJ's remedial authority. See 1978.109(d)(1).

• The ALJ determines whether punitive damages are appropriate and calculates an amount up to the statutory cap based on the facts.

Yes — the ALJ's decision must be served on the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor, in addition to the parties and the Assistant Secretary. See 1978.109(e).

• Proper service ensures the Department's legal offices are notified and can take appropriate next steps, such as seeking review before the ARB when warranted.

No — the ALJ may not challenge the Assistant Secretary's choice to investigate or dismiss under 1978.104(e); instead, if there is jurisdiction the ALJ will hear the case on the merits or dispose of it without a hearing as appropriate. See 1978.109(c) and 1978.104(e).

• The ALJ's review focuses on the record and merits rather than re-opening or ordering additional Departmental investigation.

Yes — the ALJ can order backpay with interest as part of compensatory damages when a violation is found. Interest is calculated under 26 U.S.C. 6621 and compounded daily. See 1978.109(d)(1).

• The ALJ will determine the appropriate backpay period and apply the specified interest calculation to compensate the complainant fully.