ALJ decision and orders

The ALJ must include appropriate findings, conclusions, and an order addressing remedies, and the complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the alleged adverse action. See 1983.109(a).

• "Preponderance of the evidence" means the complainant must show it is more likely than not that protected activity contributed to the adverse action.
• The decision must address remedies listed in 1983.109(d) if a violation is found.

Yes; relief may be denied if the employer proves by clear and convincing evidence that it would have taken the same adverse action even without the protected activity. See 1983.109(b).

• "Clear and convincing" is a higher standard than preponderance and requires highly probable or reasonably certain evidence.
• Practical employer evidence: contemporaneous performance records, documented disciplinary steps, business justifications, and independent witnesses or documents showing the decision would have been made regardless of the protected activity.

No; the ALJ may not review the Assistant Secretary's decision to dismiss without completing an investigation under [1983.104(e)], and the case will not be remanded solely because the Assistant Secretary dismissed the complaint. See 1983.109(c) and 1983.104(e).

• If jurisdiction exists despite the dismissal decision, the ALJ will hear the matter on the merits or dispose of it without a hearing based on the facts.

The ALJ can order remedies such as abatement actions, reinstatement with compensation (including back pay and interest), and payment of compensatory damages and reasonable costs and expenses (including attorney and expert witness fees) at the complainant's request. See 1983.109(d)(1).

• Interest on back pay is calculated using the rate under 26 U.S.C. 6621 and compounded daily.
• "Compensatory damages" can include lost wages, benefits, and, if requested, reasonable attorney and expert fees incurred by the complainant.

The ALJ will issue an order denying the complaint if the ALJ determines the respondent did not violate the law. See 1983.109(d)(2).

• A denial means no remedies will be ordered against the respondent under that decision.

A decision requiring reinstatement or lifting an Assistant Secretary reinstatement order becomes effective immediately upon the respondent's receipt of the decision, while all other portions of the ALJ's order become effective 14 days after the decision date unless a timely petition for review is filed with the Administrative Review Board (ARB). See 1983.109(e).

• If the respondent files a timely petition for review, effectiveness may be stayed pending ARB action.
• Immediate-effect reinstatement requires the employer to act right away on the ALJ's reinstatement order.

An ALJ's 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. See 1983.109(e).

• Filing a timely petition is required to seek ARB review; acceptance by the ARB is discretionary.

Yes; upon the respondent's request, the ALJ may award the respondent a reasonable attorney's fee not exceeding $1,000 if the ALJ determines the complaint was frivolous or brought in bad faith. See 1983.109(e).

• The award is discretionary and limited to a maximum of $1,000.

Interest on back pay must be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and must be compounded daily. See 1983.109(d)(1).

• Employers and practitioners should plan to calculate daily-compounded interest at the statutory rate specified by 26 U.S.C. 6621 for accurate back-pay awards.

The complainant must show it is more likely than not (preponderance) that protected activity contributed to the adverse action, while the respondent must show it is highly probable (clear and convincing) that the same action would have been taken regardless. See 1983.109(a) and 1983.109(b).

• For complainants: focus on establishing timing, comparators, inconsistent explanations, or direct statements showing protected activity contributed.
• For respondents: compile strong documentary proof (performance records, documented misconduct, independent business reasons, contemporaneous notes) to meet the higher clear-and-convincing threshold.

Yes; if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of it without a hearing even if the Assistant Secretary previously dismissed the complaint under [1983.104(e)]. See 1983.109(c) and 1983.104(e).

• The ALJ cannot remand the case back for additional investigation solely because the Assistant Secretary dismissed it.

Yes; the ALJ may award compensatory damages that include, at the complainant's request, the aggregate amount of all costs and expenses reasonably incurred, including attorney and expert witness fees. See 1983.109(d)(1).

• The fees must be reasonable and the complainant must request them for consideration.

An employer should comply immediately with the reinstatement order because reinstatement becomes effective upon the respondent's receipt of the decision. See 1983.109(e).

• Practical steps: restore the employee to the former position or equivalent, process back pay and benefits, document the reinstatement, consult legal counsel about whether to file a timely petition for review with the ARB, and preserve records related to the case.

Part 1983 sets out the procedures for handling retaliation complaints under Section 219 of the Consumer Product Safety Improvement Act of 2008. See 1983.

• Subpart B covers litigation procedures, including ALJ decisions and remedies under 1983.109.