Findings and preliminary orders

Under 1982.105(a), OSHA must issue written findings within 60 days of the filing of the complaint. See 1982.105(a).

• This 60-day period begins on the date the complaint is filed.
• The findings state whether there is reasonable cause to believe the respondent retaliated in violation of NTSSA or FRSA.

Under 1982.105(a)(1), if the Assistant Secretary finds reasonable cause to believe retaliation occurred, OSHA will issue findings accompanied by a preliminary order providing relief to the complainant. See 1982.105(a)(1).

• The preliminary order lays out specific relief the complainant should receive and starts the administrative enforcement process.

Under 1982.105(b), a preliminary order can include reinstatement, back pay with interest, compensatory damages (including litigation costs, expert witness fees, and reasonable attorney fees), affirmative action to abate the violation, and possible punitive damages up to $250,000. See 1982.105(b).

• Reinstatement must restore the employee to the seniority status they would have had but for the retaliation.
• Interest on back pay is calculated using the rate under 26 U.S.C. 6621 and compounded daily.
• The order may also require allocation of back pay to Social Security Administration or Railroad Retirement Board as appropriate.

Under 1982.105(b), interest on back pay is calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and is compounded daily. See 1982.105(b).

• This means the statutory tax underpayment rate is used and interest accrues every day on the unpaid amount.

Yes. Under 1982.105(b), a preliminary order can require the respondent to submit documentation to the Social Security Administration or the Railroad Retirement Board, as appropriate, that allocates any back pay award to the appropriate months or calendar quarters. See 1982.105(b).

• This ensures the complainant's earnings record is corrected for benefit calculations.

Under 1982.105(b), a preliminary order may require the respondent to pay punitive damages up to $250,000. See 1982.105(b).

• Punitive damages are discretionary and only awarded where appropriate under the statute and circumstances.

Under 1982.105(a)(2), if the Assistant Secretary concludes that a violation has not occurred, OSHA will notify the parties of that finding. See 1982.105(a)(2).

• That notice informs the complainant and respondent that OSHA found no reasonable cause to believe retaliatory action occurred.

Under 1982.105(b), OSHA will send the findings and any preliminary order by means that allow OSHA to confirm delivery to all parties of record and to each party’s legal counsel if represented. See 1982.105(b).

• Examples could include certified mail with return receipt, express courier with tracking and signature, or electronic filing methods that provide delivery confirmation.

Under 1982.105(c), findings and any preliminary order become effective 30 days after receipt by the respondent (or their counsel) or on the compliance date in the order, whichever is later, unless the respondent timely files an objection or requests a hearing under 1982.106. See 1982.105(c) and 1982.106.

• Filing objections or a hearing request in the way and timeframe set out in 1982.106 can delay the effective date of most parts of the order.

Under 1982.105(c), the reinstatement portion of any preliminary order is effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections. See 1982.105(c).

• This means the complainant should be returned to work right away if the order requires reinstatement, even while objections or hearings are pending.

Under 1982.105(c), the findings and preliminary order will inform the parties of their right to object to the findings and/or order and to request a hearing, and will provide the address of the Chief Administrative Law Judge or information for electronic filing with the Office of Administrative Law Judges. See 1982.105(c).

• The document will explain how to file objections and where to send them, so parties know how to preserve their right to a hearing.

Yes. Under 1982.105(c), at the same time the findings and any preliminary order are issued to the parties, the Assistant Secretary will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order. See 1982.105(c).

• This ensures the administrative record is available for any subsequent hearing.

Under 1982.105(b), compensatory damages in a preliminary order can include payment for any special damages sustained because of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. See 1982.105(b).

• These damages are meant to make the complainant whole for losses directly caused by the retaliatory action.

Under 1982.105(c), a respondent may request award of attorney fees not exceeding $1,000 from the administrative law judge under NTSSA if the respondent alleges the complaint was frivolous or brought in bad faith. See 1982.105(c).

• This right applies to respondents under NTSSA and is distinct from fees awarded to successful complainants.

Yes. Under 1982.105(b), OSHA will send findings and any preliminary order by means that allow OSHA to confirm delivery to all parties of record and to each party’s legal counsel if the party is represented. See 1982.105(b).

• This ensures both the party and their attorney are officially notified and that OSHA has proof of delivery.

Under 1982.105(b), 'affirmative action to abate the violation' means the preliminary order can require the respondent to take specific steps to fix conditions or practices that led to the retaliatory act. See 1982.105(b).

• Examples could include updating policies, training supervisors, or changing scheduling or discipline practices to prevent future retaliation.

Under 1982.105(c), if the respondent does not timely file objections, the findings and any preliminary order become effective 30 days after the respondent (or their counsel) receives them, or on the compliance date stated in the order, whichever is later. See 1982.105(c).

• Reinstatement portions, however, are effective immediately upon receipt regardless of objections.

Under 1982.105(c), the findings and preliminary order will provide the address of the Chief Administrative Law Judge, U.S. Department of Labor, or information about filing objections electronically with the Office of Administrative Law Judges. See 1982.105(c) and 1982.106 for the procedure details.

• Parties should follow the instructions in the findings/order to ensure objections or hearing requests are filed correctly and timely.

Under 1982.105(a), the Assistant Secretary is responsible for considering the investigation record and deciding whether there is reasonable cause to believe the respondent retaliated against the complainant. See 1982.105(a).

• That decision triggers either issuance of a preliminary order with relief or notification that no violation was found.