Findings and preliminary orders

The Assistant Secretary must issue written findings within 60 days of the filing of the complaint. This is required by 1985.105(a).

• The 60-day clock starts on the date the complaint is filed.
• The findings are based on all relevant information collected during the investigation, per the same provision.

If the Assistant Secretary finds reasonable cause to believe a violation occurred, the findings must be accompanied by a preliminary order providing relief to the complainant. This is specified in 1985.105(a)(1).

• The preliminary order is the mechanism for immediate corrective relief while further proceedings (if any) move forward.

A preliminary order can require reinstatement, back pay with interest, compensatory damages, affirmative abatement actions, and payment of costs and fees if requested by the complainant. The list of possible relief is in 1985.105(a)(1).

• Reinstatement: return to former position with the compensation, terms, conditions, and privileges of employment.
• Back pay and interest: interest calculated using the rate under 26 U.S.C. 6621 and compounded daily.
• Compensatory damages: may include costs and expenses such as attorney and expert witness fees, at the complainant’s request.
• Affirmative action: steps to abate the violation may be ordered when appropriate.
• The order also can require the respondent to submit documentation to the Social Security Administration allocating back pay to appropriate calendar quarters.

If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding. See 1985.105(a)(2).

• Notification goes to all parties of record (and to counsel if a party is represented), as required by the standard.

OSHA must send findings and, where appropriate, the preliminary order by means that allow OSHA to confirm delivery to all parties of record and each party’s legal counsel if represented. This is required by 1985.105(b).

• Practical methods that meet this requirement include certified mail with return receipt, tracked courier delivery, or secure electronic service with delivery/read receipts.
• The standard does not prescribe a single method, only that delivery be confirmable.

Findings and any preliminary order become effective 30 days after receipt by the respondent (or the respondent’s counsel), or on the compliance date set in the preliminary order, whichever is later, unless a timely objection or request for hearing is filed. See 1985.105(c).

• If the preliminary order sets a later compliance date, that later date controls the effective date of the order (unless a timely objection is filed as provided at 1985.106).
• The provision explains how effectiveness is tied to receipt, so be sure to track delivery confirmation.

Yes. The portion of any preliminary order requiring reinstatement is effective immediately upon the respondent’s receipt of the findings and the preliminary order, regardless of any objections. This immediate effect is stated in 1985.105(c).

• This means a respondent must comply with reinstatement provisions immediately even if it files objections or requests a hearing.

The findings and any preliminary order will inform parties of the right to object and request a hearing, and will give the address of the Chief Administrative Law Judge or information for filing electronically; objections and requests for hearing must be filed timely as provided at 1985.106. See 1985.105(c).

• Follow the instructions in the findings/order for where and how to file objections or hearing requests.
• Timeliness rules and further procedural steps are governed by 1985.106.

Interest on back pay is calculated using the interest rate applicable to underpayments of taxes under 26 U.S.C. 6621 and is compounded daily. This calculation rule is expressly provided in 1985.105(a)(1).

• Employers should apply the appropriate 26 U.S.C. 6621 rate for the applicable periods and compound the interest daily when computing awards of back pay.

A preliminary order will require the respondent to submit documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. This requirement appears in 1985.105(a)(1).

• Proper allocation is important to protect the complainant’s Social Security earnings record and future benefit calculations.

If the preliminary order sets a compliance date later than 30 days after receipt, the compliance date set in the order controls the effective date of the order, unless a timely objection and/or request for hearing is filed. See 1985.105(c).

• The later compliance date delays the effective obligations of the order (other than immediate reinstatement, which remains effective upon receipt).

A respondent may request an award of attorney fees not exceeding $1,000 from the Administrative Law Judge if the respondent alleges that the complaint was frivolous or brought in bad faith. This right is described in 1985.105(c).

• The request for fees can be made regardless of whether the respondent files objections to the findings or order.
• The ALJ has discretion to award up to $1,000 when the frivolous/bad-faith standard is met.

At the same time the Assistant Secretary notifies 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 preliminary order. This procedure is stated in 1985.105(c).

• Filing with the Chief ALJ starts the administrative record and enables further proceedings if a hearing is requested.

The findings and, where appropriate, the preliminary order must be sent to all parties of record and each party’s legal counsel if the party is represented by counsel, using a delivery method that allows OSHA to confirm receipt. See 1985.105(b).

• Ensuring counsel receives the documents is explicitly required when a party is represented.

The Assistant Secretary issues findings after considering all relevant information collected during the investigation and determines whether there is reasonable cause to believe retaliation occurred. This decision process is described in 1985.105(a).

• The term “reasonable cause” reflects an evidentiary determination based on the investigation; parties should ensure they submit relevant evidence during the investigatory stage.

Yes. The preliminary order can require payment of compensatory damages, including at the complainant’s request the aggregate amount of costs and expenses such as attorney and expert witness fees reasonably incurred. This is in 1985.105(a)(1).

• The fees and costs must be reasonably incurred and are recoverable if ordered as part of compensatory damages.

Yes. The reinstatement portion of any preliminary order is effective immediately upon receipt by the respondent (or the respondent’s counsel) and must be complied with even if objections or a hearing request are filed. See 1985.105(c).

• Other parts of the preliminary order may be stayed by timely objections and hearing requests, subject to the procedural rules in 1985.106.

Yes. Where appropriate, a preliminary order may require affirmative action to abate the violation. This is explicitly listed in 1985.105(a)(1).

• Examples could include policy changes, training, or other corrective measures tailored to address the violation, depending on what the Assistant Secretary deems appropriate.

The regulation requires sending findings and orders by a means that allows OSHA to confirm delivery but does not dictate specific methods; practical options include certified mail with return receipt, tracked courier service with signature confirmation, or secure electronic delivery with verifiable receipt. See 1985.105(b).

• Choose a method that produces a time-stamped delivery record and keeps that record for your files.
• If a party is represented, confirm delivery to the party’s counsel as well, since the regulation requires confirmation to counsel when applicable.