Subpart B
The complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged. This means the ALJ will find a violation only if it is more likely than not that the protected activity contributed to the adverse employment action. See 1984.109(a).
No — relief may not be ordered if the respondent proves by clear and convincing evidence that it would have taken the same adverse action even without the protected activity. This is an affirmative defense the respondent can meet to block remedies. See 1984.109(b).
No — the ALJ cannot review OSHA's determination to dismiss a complaint made under 1984.104(e), nor can the ALJ remand a case just because a dismissal may have been made in error. If the ALJ has jurisdiction, the case will be heard on the merits or disposed of without a hearing based on the available facts. See 1984.109(c).
An ALJ can order affirmative action to correct the violation, reinstatement with back pay and interest, restoration of terms and privileges of employment, and payment of compensatory damages including requested costs and attorney or expert witness fees reasonably incurred. The ALJ also can require the respondent to submit documentation to the Social Security Administration allocating any back pay award to the proper period. See 1984.109(d) and 1984.109(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. This means interest follows the federal tax underpayment rate formula and daily compounding as described in the regulation. See 1984.109(d)(1).
If the ALJ determines there was no violation, the ALJ will issue an order denying the complaint. The decision will state that the complaint is denied based on the ALJ's findings and conclusions. See 1984.109(d)(2).
Yes — upon the respondent's request, the ALJ may award the respondent reasonable attorney fees, not to exceed $1,000, if the ALJ finds the complaint was frivolous or brought in bad faith. The award is discretionary and limited by the regulation. See 1984.109(d)(2).
A decision requiring reinstatement or lifting an order of reinstatement becomes effective immediately upon the respondent's receipt of the decision. This immediate effectiveness applies specifically to reinstatement orders. See 1984.109(e).
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 (ARB). Filing a timely petition can delay effectiveness pending ARB action. See 1984.109(e).
The ALJ's decision becomes the final order of the Secretary unless a timely petition for review is filed with the Administrative Review Board (ARB) and the ARB accepts the petition for review. If no timely petition is filed or the ARB does not accept review, the ALJ decision stands as final. See 1984.109(e).
No — the ALJ may not remand a case for completion of an investigation solely because OSHA previously dismissed the complaint under 1984.104(e). Instead, if jurisdiction exists the ALJ will decide the case on the merits or dispose of it without a hearing based on the record. See 1984.109(c).
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 the parties and the Department's leadership receive notice of the decision. See 1984.109(e).
Yes — the ALJ may order payment of compensatory damages and, at the complainant's request, award the aggregate amount of costs and expenses, including attorney and expert witness fees, reasonably incurred. The fees awarded must be reasonable and are part of the compensatory relief an ALJ can order. See 1984.109(d)(1).
A timely petition for review to the Administrative Review Board (ARB) suspends finality; the ALJ's decision will not become the final order of the Secretary while the ARB considers whether to accept and review the petition. If the ARB accepts review, it will issue the final decision; if not, the ALJ decision remains final. See 1984.109(e).
Yes — the ALJ may dispose of the matter without a hearing if the facts and circumstances warrant such disposition, for example when the record is sufficient for resolution. The regulation specifically permits disposition without hearing when appropriate. See 1984.109(c).
The ALJ's decision must include appropriate findings, conclusions, and an order describing the remedies provided under paragraph (d), such as reinstatement, back pay, compensatory damages, and affirmative actions to abate violations. The decision should explain the factual and legal basis for those remedies. See 1984.109(a) and 1984.109(d).
Yes — the ALJ's 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 back pay is properly reflected for Social Security purposes. See 1984.109(d)(1).