ALJ decisions and orders

Under 1982.109(a), the ALJ must include appropriate findings, conclusions, and an order addressing any remedies called for in paragraph (d).

• This means the decision should explain the facts the ALJ found, the legal conclusions drawn from those facts, and any specific relief or penalties ordered.
• The ALJ may only find a violation if the complainant proves by a preponderance of the evidence that protected activity contributed to the adverse action.

Under 1982.109(a), the complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse action.

• "Preponderance of the evidence" means it is more likely than not that the protected activity contributed to the adverse action.

Yes. Under 1982.109(b), even when the complainant meets their burden, relief can be barred if the respondent proves by clear and convincing evidence they would have taken the same adverse action absent the protected activity.

• "Clear and convincing evidence" is a higher standard than preponderance and requires the respondent to show a high probability that the same action would have occurred for lawful reasons.

No. Under 1982.109(c), the ALJ cannot review OSHA's decision to dismiss a complaint without completing an investigation under 1982.104(e).

• If jurisdiction otherwise exists, the ALJ will hear the case on the merits or dispose of the matter without sending it back for further investigation.

No. Under 1982.109(c), a complaint may not be remanded to OSHA for completion of an investigation simply because OSHA previously dismissed it.

• The ALJ will proceed to hear the case on the merits if there is jurisdiction, rather than remanding for additional fact-finding.

If the ALJ finds a violation, they may order remedies including affirmative action to stop the violation, reinstatement with proper seniority, back pay with interest, compensatory damages (including litigation costs, expert witness fees, and reasonable attorney fees), and documentation to appropriate benefit agencies, as described in 1982.109(d)(1).

• Remedies are tailored to make the complainant whole, such as restoring seniority and compensating lost wages and special damages.

Under 1982.109(d)(1), 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.

• That means back pay awards accrue interest at the tax underpayment rate and the interest is compounded every day until paid.

Yes. Under 1982.109(d)(1), an ALJ's order will require the respondent to submit documentation to the Social Security Administration or the Railroad Retirement Board, as appropriate, allocating any back pay award to the correct months or calendar quarters.

• This preserves the employee's earnings record and any related benefits.

Yes. The ALJ may order punitive damages up to $250,000 as part of the remedy under 1982.109(d).

• The text sets the maximum amount of punitive damages the ALJ may award at $250,000.

If the ALJ finds no violation, they will issue an order denying the complaint under 1982.109(d)(2).

• A denial order resolves the complaint in favor of the respondent and closes the case at the ALJ level.

Yes. Under 1982.109(d)(2), if the ALJ finds a complaint filed under the National Transit Systems Security Act (NTSSA) was frivolous or brought in bad faith at the respondent's request, the ALJ may award the respondent reasonable attorney fees up to $1,000.

• The award is discretionary and capped at $1,000.

Under 1982.109(e), 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.

• This ensures all interested parties and DOL officials receive official notice of the decision.

An ALJ decision requiring reinstatement becomes effective immediately upon the respondent's receipt of the decision under 1982.109(e).

• There is no 14‑day waiting period for reinstatement orders; they take effect as soon as the respondent receives the decision.

Under 1982.109(e), all parts of the ALJ's order other than immediate reinstatement become effective 14 days after the decision date unless a timely petition for review is filed with the Administrative Review Board (ARB). If a timely petition is filed and the ARB accepts review, the ALJ decision does not become the final order of the Secretary.

• In practice: immediate reinstatement orders take effect on receipt; other remedies wait 14 days unless the ARB review is sought.

An ALJ decision becomes the final order of the Secretary unless a timely petition for review is filed with the ARB and the ARB accepts the petition for review, as stated in 1982.109(e).

• If no petition is filed or the ARB declines review, the ALJ decision stands as final.

Yes. Under 1982.109(c), the ALJ may dispose of the matter without a hearing if the facts and circumstances warrant it.

• This can occur when the record and filings allow the ALJ to resolve the legal and factual issues without an in-person or formal hearing.

If reinstatement is ordered, the employee must be returned with the same seniority status they would have had but for the retaliation, as required by 1982.109(d)(1).

• That means calculating and restoring any seniority, promotion opportunities, or benefits the employee lost because of the adverse action.

Yes. 1982.109(d)(1) expressly includes compensation for special damages sustained as a result of retaliation, such as litigation costs, expert witness fees, and reasonable attorney fees, as part of compensatory damages.

• These items can be awarded to make the complainant whole for expenses incurred because of the retaliation.

Under 1982.109(d)(2), the ALJ may award reasonable attorney fees to the respondent if the complaint filed under the NTSSA was frivolous or brought in bad faith, with a maximum award of $1,000.

• The award is discretionary and capped at $1,000 to compensate the respondent for costs of defending against a frivolous NTSSA complaint.