ALJ decisions and orders

The ALJ must include appropriate findings, conclusions, and an order and the complainant must prove the claim by a preponderance of the evidence. Under 1980.109(a), the decision must contain sufficient factual findings and legal conclusions and an order addressing the remedies in paragraph (d), and a violation may be found only if the complainant demonstrates by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged.

A respondent can avoid relief by proving by clear and convincing evidence that it would have taken the same adverse action absent any protected activity. 1980.109(b) explains that even if the complainant satisfies the burden in paragraph (a), no relief may be ordered if the respondent shows by clear and convincing evidence that the same adverse action would have occurred regardless of the protected activity.

No — the ALJ cannot review OSHA's decision to dismiss or to proceed under 1980.104(e). 1980.109(c) states that neither OSHA's determination to dismiss under 1980.104(e) nor its decision to investigate is subject to ALJ review, and a case may not be remanded merely because a dismissal was made in error; the ALJ will hear the matter on the merits if there is jurisdiction or dispose of it without a hearing if appropriate.

The ALJ can order full make-whole relief including reinstatement, back pay with interest, and compensation for special damages such as litigation costs and fees. 1980.109(d)(1) specifies relief necessary to make the employee whole, including reinstatement with the same seniority status the complainant would have had but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.

Interest on back pay is calculated using the rate applicable to underpayment of taxes under 26 U.S.C. 6621 and is compounded daily. 1980.109(d)(1) requires daily compounding at the interest rate set by 26 U.S.C. 6621 when computing interest on any back pay award.

The ALJ's order must require the respondent to submit documentation that allocates any back pay award to the appropriate calendar quarters for SSA records. 1980.109(d)(1) explicitly requires the respondent to provide appropriate documentation to the Social Security Administration to allocate back pay to the correct calendar quarters.

If the ALJ finds no violation, the complaint will be denied, and the respondent may recover attorney fees up to $1,000 if the judge determines the complaint was frivolous or brought in bad faith at the respondent's request. 1980.109(d)(2) provides that the ALJ will issue an order denying the complaint when no violation is found and may award reasonable attorney fees not exceeding $1,000 if asked and if the complaint is judged frivolous or in bad faith.

The ALJ's decision must be served on all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. 1980.109(e) specifies these required recipients for service of the decision.

An ALJ decision requiring reinstatement becomes effective immediately upon the respondent's receipt of the decision. 1980.109(e) states that any ALJ decision requiring reinstatement or lifting an order of reinstatement will be effective immediately when the respondent receives the decision.

All other portions of the ALJ's order become effective 14 days after the date of the decision unless a timely petition for review is filed with the Administrative Review Board. 1980.109(e) explains that non-reinstatement portions of the order are effective 14 days after the decision date unless an ARB petition is timely filed.

The ALJ's decision becomes the final order of the Secretary unless a petition for review is timely filed with the Administrative Review Board and the ARB accepts the petition. 1980.109(e) sets out that the decision becomes final unless the ARB receives a timely petition and accepts it for review.

No — the ALJ may not remand a case simply because OSHA's dismissal was made in error under 1980.104(e). 1980.109(c) explains that a complaint may not be remanded for completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error; if there is jurisdiction the ALJ will otherwise hear the case on the merits or dispose of it without a hearing.

Making the employee whole includes reinstatement to the position with the same seniority status, back pay with interest, and compensation for special damages such as litigation costs, expert witness fees, and reasonable attorney fees. 1980.109(d)(1) lists these remedies as examples of relief the ALJ may order to make the employee whole.

The respondent must meet a higher standard — clear and convincing evidence — to show it would have taken the same adverse action absent protected activity, whereas the complainant needs only a preponderance of the evidence to show protected activity was a contributing factor. 1980.109(a) describes the complainant's preponderance burden and 1980.109(b) sets the respondent's higher "clear and convincing" burden for the affirmative defense.

Yes — if the facts and circumstances warrant, the ALJ may dispose of the matter without a hearing. 1980.109(c) states that the ALJ will hear the case on the merits or dispose of it without a hearing where appropriate.

The respondent must request fees from the ALJ, who may award reasonable attorney fees up to $1,000 if the judge determines the complaint was frivolous or brought in bad faith. 1980.109(d)(2) authorizes the ALJ to award such fees upon the respondent's request and a finding of frivolousness or bad faith.

If no timely petition for review is filed with the ARB, the ALJ's decision becomes the final order of the Secretary. 1980.109(e) states that the decision will become the Secretary's final order unless the ARB receives and accepts a timely petition for review.