Administrative Review Board decisions

A petition for review must be filed within ten business days of the date of the Administrative Law Judge's decision. See 1979.110(a).

• The petition must specifically identify the findings, conclusions, or orders to which exception is taken; issues not specifically urged are generally waived.
• This ten-business-day deadline begins on the date of the ALJ decision, not the date you receive it.

The petition for review must specifically identify the findings, conclusions, or orders to which exception is taken in order to preserve those issues for Board review. See 1979.110(a).

• If you fail to specifically urge an exception, that issue is ordinarily deemed waived.
• Be clear and precise about each factual or legal point you challenge in the petition.

Any party desiring to seek review, including judicial review, of an ALJ decision or a named person alleging the complaint was frivolous or brought in bad faith who seeks attorney's fees may file a written petition for review with the Administrative Review Board. See 1979.110(a).

• This includes complainants, respondents, and named persons seeking fees for frivolous complaints.

The date of filing is the postmark date, facsimile transmittal date, or electronic transmittal date; if filed in person or by hand-delivery, the petition is considered filed upon receipt. See 1979.110(b).

• Keep proof of mailing, fax confirmation, or electronic transmission to document the filing date.
• If hand-delivered, retain a stamped receipt or other evidence of receipt.

The petition must be served on all parties and on the Chief Administrative Law Judge when filed with the Board; copies of the petition and all briefs must also be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards. See 1979.110(b).

• Serve the Chief Administrative Law Judge and all parties at the time of filing with the Board.
• Also serve the Assistant Secretary and the Associate Solicitor with copies of the petition and any briefs.

If a timely petition for review is filed, the ALJ decision becomes the final order of the Secretary unless the Board issues an order within 30 days accepting the case for review; if the Board accepts review, the ALJ decision is inoperative unless and until the Board adopts it. See 1979.110(b).

• The Board has 30 days from filing the petition to notify parties that the case is accepted for review.
• A preliminary order of reinstatement remains effective while the Board reviews the case.

A preliminary order of reinstatement is effective while the Board conducts review even if the ALJ decision would otherwise become inoperative during Board review. See 1979.110(b).

• This means a complainant ordered reinstated by an ALJ may be preliminarily reinstated while the Board decides whether to accept review and ultimately rule.
• The Board will later specify briefing terms if it accepts the case.

The Board reviews the factual determinations of the Administrative Law Judge under the substantial evidence standard. See 1979.110(c).

• "Substantial evidence" means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
• Legal conclusions and mixed questions of law and fact may be reviewed under the Board's applicable standards in addition to factual substantiality.

The Board must issue its decision within 120 days of the conclusion of the hearing, which is deemed to be 10 business days after the ALJ decision unless a motion for reconsideration has been filed with the ALJ in the interim. See 1979.110(c).

• If a motion for reconsideration is filed with the ALJ, the 10-business-day point is delayed until the motion is resolved, affecting the 120-day clock.
• The decision will be served on all parties, the Chief ALJ, the Assistant Secretary, and the Associate Solicitor.

If the Board concludes a party violated the law, it can order appropriate affirmative relief, including reinstatement with back pay, terms, conditions, and privileges of employment, and compensatory damages; at the complainant's request, the Board may also assess costs and expenses (including attorney and expert witness fees) against the named person. See 1979.110(d).

• Remedies are intended to make the complainant whole: reinstatement, back pay, and other employment benefits.
• The complainant must request assessment of costs and expenses for the Board to consider awarding them.

If the Board concludes the named person did not violate the law, it will issue an order denying the complaint. See 1979.110(e).

• The denial means no affirmative relief (reinstatement, back pay, or damages) will be ordered.
• The Board's order is subject to discretionary review by the Secretary under Secretary's Order 01-2020.

Yes; if the Board determines on request of the named person that a complaint was frivolous or brought in bad faith, it may award reasonable attorney fees to the named person, not exceeding $1,000. See 1979.110(e).

• The named person must request the Board to make this determination and award fees.
• The statute caps the award at $1,000 for attorney fees in these circumstances.

Yes; the ARB's order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order). See 1979.110(e).

• Discretionary review means the Secretary may choose to review the ARB's decision according to the procedures in Secretary's Order 01-2020.
• Practically, this is not an automatic appeal; it is a further layer of internal review.

If the Board does not issue an order accepting review within 30 days of the filing of a timely petition, the Administrative Law Judge's decision becomes the final order of the Secretary. See 1979.110(b).

• Parties should track the 30-day period after filing to know whether the ALJ decision will become final.
• If no acceptance is issued, remedies ordered by the ALJ become effective unless stayed by some other authority.

If the Board accepts a case for review, the Board will specify the terms under which any briefs are to be filed. See 1979.110(b).

• Expect the Board to issue deadlines and formatting or page-limit instructions for briefs.
• Follow the Board's specific scheduling order closely to avoid waiving issues.

The "conclusion of the hearing" is deemed to be 10 business days after the date of the ALJ's decision unless a motion for reconsideration has been filed with the Administrative Law Judge in the interim; the Board's decision must be issued within 120 days of that conclusion. See 1979.110(c).

• Filing a motion for reconsideration with the ALJ delays the 10-business-day point and thus delays the start of the 120-day clock.
• Parties should note motions for reconsideration affect the timing of Board review.

A complainant must request that the Board assess costs and expenses (including attorney and expert witness fees) against the named person; the Board will award such costs and expenses at the complainant's request if it concludes the party charged violated the law. See 1979.110(d).

• Make the request formally in the petition for review or in a post-decision filing so the Board can consider awarding costs.
• Document all reasonable fees and expenses to support the request.

A party desiring to seek judicial review of an ALJ decision must first file a written petition for review with the Administrative Review Board; the ALJ decision becomes final unless a timely petition is filed with the Board. See 1979.110(a).

• Filing with the Board preserves the ability to seek subsequent judicial review; failing to file the petition typically forecloses further administrative and judicial review.
• Ensure compliance with the ten-business-day filing requirement to protect appellate rights.

Parties should maintain proof such as mailing receipts, fax confirmations, email transmission records, and certificates of service showing the petition was served on all parties and the Chief Administrative Law Judge and that copies were served on the Assistant Secretary and Associate Solicitor. See 1979.110(b).

• Keep timestamped transmission records or signed delivery receipts.
• A clear certificate of service included with filings helps demonstrate compliance with service requirements.

Any exception not specifically urged in the petition for review is ordinarily deemed to have been waived by the parties, so new exceptions not raised before the ALJ or specifically in the petition may be considered waived. See 1979.110(a).

• To preserve issues for Board review, identify them clearly and specifically in the petition.
• Late-claimed exceptions are unlikely to be considered absent extraordinary circumstances.

Yes; the Board may order compensatory damages in addition to reinstatement, back pay, and other employment terms when it concludes the party charged violated the law. See 1979.110(d).

• Compensatory damages are part of the range of appropriate affirmative relief the Board can award.
• The Board determines the appropriate remedy based on the facts and legal standards applicable to the case.

The Board's decision will be served upon all parties, the Chief Administrative Law Judge, the Assistant Secretary, Occupational Safety and Health Administration, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. See 1979.110(c).

• Even if the Assistant Secretary is not a party, the decision is served on that office and the Associate Solicitor.
• Keep contact information current to ensure timely receipt of the Board's decision.