Findings and preliminary orders

Under 1984.105(a), OSHA must issue written findings within 60 days of the filing of the complaint after considering all relevant information gathered during the investigation.

• This 60-day clock begins on the date the complaint is filed.

Under 1984.105(a)(1), OSHA will issue findings and accompany those findings with a preliminary order that provides relief to the complainant when it concludes there is reasonable cause to believe a violation occurred.

• The preliminary order lays out the relief OSHA believes is appropriate based on the findings.

Under 1984.105(a)(2), a preliminary order can require affirmative action to abate the violation; reinstatement of the complainant with compensation (including back pay and interest), terms, conditions and privileges of employment; and payment of compensatory damages, including, at the complainant’s request, the aggregate amount of all costs and expenses (such as attorney and expert witness fees) reasonably incurred.

• Interest on back pay is calculated using the rate under 26 U.S.C. 6621 and is compounded daily, and the respondent must submit documentation to the Social Security Administration allocating any back pay award to the appropriate period.

Under 1984.105(a)(2), if the Assistant Secretary concludes that a violation has not occurred, OSHA will notify the parties of that finding.

• The notification communicates that the investigation did not establish reasonable cause to believe retaliation occurred.

Under 1984.105(b), OSHA will send findings and, where appropriate, preliminary orders by means that allow OSHA to confirm delivery to all parties of record and to each party’s legal counsel if represented.

• The regulation requires a delivery method that permits OSHA to verify that each party (and counsel, if any) actually received the document.

Under 1984.105(c), the findings and any preliminary order will inform the parties of the right to object to the findings and/or order and to request a hearing, and will provide information about filing objections (including the address of the Chief Administrative Law Judge or how to file electronically with the Office of Administrative Law Judges).

• The notice also explains the respondent’s right to request attorney fees from the ALJ if the respondent alleges the complaint was frivolous or brought in bad faith.

Under 1984.105(c), findings and any preliminary order become effective 30 days after receipt by the respondent (or the respondent’s counsel if represented), or on the compliance date set in the preliminary order, whichever is later, unless an objection and/or request for hearing has been timely filed as provided at 1984.106.

• Timely filing of an objection or hearing request under 1984.106 delays the effectiveness as described above.

Under 1984.105(c), a respondent may request an award of attorney fees from the administrative law judge not exceeding $1,000 if the respondent alleges the complaint was frivolous or brought in bad faith, regardless of whether the respondent files objections to the findings.

• The request is made to the ALJ whose address or electronic filing information is provided in the findings and preliminary order.

Under 1984.105(a)(2), 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.

• The preliminary order will specify the interest calculation on any awarded back pay.

Under 1984.105(a)(2), the preliminary order will require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period.

• This ensures the back pay is credited to the correct Social Security earnings periods.

Under 1984.105(b), OSHA will send the findings and, where appropriate, preliminary orders to each party of record and to each party’s legal counsel if the party is represented, using delivery methods that allow OSHA to confirm receipt.

• This requirement applies equally to parties and their identified counsel.

Under 1984.105(c), 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 preliminary order.

• The findings will also include the Chief ALJ’s address or instructions for electronic filing of objections.

Under 1984.105(a), OSHA must consider all the relevant information collected during the investigation before issuing written findings within the 60-day period.

• The findings reflect OSHA’s assessment based on the complete investigative record.

Under 1984, Subpart A is titled "Complaints, Investigations, Findings and Preliminary Orders" and covers the procedures for handling retaliation complaints under Section 1558 of the Affordable Care Act, including issuance of findings and preliminary orders at 1984.105.

• Subpart A establishes the steps and timelines OSHA follows in these cases.

Under 1984.105(c), the findings and any preliminary order will give the address of the Chief Administrative Law Judge, U.S. Department of Labor, or provide appropriate information about filing objections electronically with the Office of Administrative Law Judges, which is the proper place to file objections or request a hearing; see also 1984.106 for procedures on objections and hearings.

• Follow the address or electronic filing instructions provided in the findings to ensure a timely and valid filing.