ALJ decision and orders

The complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse action. Under 1985.109(a), the Administrative Law Judge (ALJ) may find a violation only if the complainant meets this standard.

• "Preponderance of the evidence" means the complainant’s version of events is more likely true than not.
• This is a lower standard than "clear and convincing"; it simply requires tipping the balance of evidence in the complainant’s favor.

A respondent can avoid relief by showing by clear and convincing evidence that it would have taken the same adverse action even without the protected activity. Section 1985.109(b) places this higher burden on the respondent as an affirmative defense.

• "Clear and convincing evidence" requires a high probability or firm belief in the truth of the facts asserted.
• If the respondent meets this burden, the ALJ may deny remedial orders despite the complainant’s showing.

No. An ALJ cannot review OSHA’s decision to dismiss a complaint without completing an investigation, and the complaint may not be remanded for further investigation for that reason. Section 1985.109(c) makes clear that OSHA’s determination under 1985.104(e) to dismiss or to proceed is not subject to ALJ review.

• If jurisdiction otherwise exists, the ALJ will either hear the case on its merits or dispose of it without a hearing based on the facts presented.

If the ALJ finds a violation, the ALJ may order appropriate remedies including abatement, reinstatement with back pay and interest, and compensatory damages including costs and attorney and expert witness fees at the complainant’s request. Section 1985.109(d) lists these potential remedies.

• Back pay interest is calculated using the rate under 26 U.S.C. 6621 and compounded daily as required by 1985.109(d).
• The ALJ can also require the employer to submit documentation to the Social Security Administration allocating back pay to the right calendar quarters.

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 calculation method is specified in 1985.109(d)(1).

• Use the appropriate statute-based interest rate for the period in question and compound daily when computing interest owed on any back pay award.

If the ALJ determines the respondent did not violate the law, the ALJ will issue an order denying the complaint. Additionally, if the respondent requests and the ALJ finds the complaint was frivolous or brought in bad faith, the ALJ may award the respondent reasonable attorney fees up to $1,000. This is set out in 1985.109(d)(2).

• The fee award is discretionary and limited to $1,000 if the frivolous/bad-faith standard is met.

The ALJ’s decision must be served on all parties, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. Under 1985.109(e), any ALJ order requiring reinstatement or lifting an order of reinstatement becomes effective immediately upon the respondent’s receipt of the decision, while all other parts of the ALJ’s order become effective 14 days after the decision unless a timely petition for review is filed with the Administrative Review Board (ARB).

• The decision becomes the final order of the Secretary unless the ARB accepts a timely petition for review.

Filing a timely petition for review with the Administrative Review Board (ARB) preserves the right to seek review; if the ARB accepts the petition, the ALJ decision will not automatically become the final order. Section 1985.109(e) explains that the ALJ decision becomes the final order of the Secretary unless a timely petition is filed and the ARB accepts it.

• If no petition is filed or the ARB does not accept the petition, the ALJ decision becomes final as specified in the regulation.

It means the ALJ must explain the factual findings, legal conclusions, and the specific remedial or denial order that follows. 1985.109(a) requires the decision to include these elements so parties know the basis for the ruling and the relief (if any) ordered.

• A well-documented decision supports review (if sought) and clarifies why the ALJ reached the outcome, including how the burden of proof was applied.

Yes. The ALJ may order 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. This remedy is stated in 1985.109(d).

• The fees must be reasonably incurred and typically require the complainant to request them and provide documentation supporting the reasonableness of the amounts.

"Affirmative action to abate the violation" generally includes steps the respondent must take to correct the unlawful condition and prevent future violations, such as policy changes, training, or workplace accommodations. 1985.109(d) authorizes such orders when appropriate.

• Examples: revising written policies, providing supervisor training, restoring benefits, or other actions tailored to remove the effect of the unlawful adverse action.

If the ALJ orders back pay, 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 calendar quarters, as stated in 1985.109(d).

• This ensures accurate Social Security earnings records for benefits purposes and may affect the complainant’s future benefit calculations.

A reinstatement ordered by an ALJ takes effect immediately upon the respondent’s receipt of the ALJ decision, according to 1985.109(e).

• Other non-reinstatement portions of the order follow the 14-day effective schedule unless a timely ARB petition is filed.

No. The ALJ may not remand a case to OSHA for completion of an investigation when OSHA dismissed the complaint under 1985.104(e); 1985.109(c) bars ALJ review of OSHA’s dismissal decision.

• The ALJ will proceed to hear the case on the merits if jurisdiction otherwise exists or dispose of it without a hearing based on the record.

The ALJ must find that the respondent proved by clear and convincing evidence it would have taken the same adverse action absent any protected activity in order to deny relief, as required by 1985.109(b).

• The ALJ will weigh the documentary and testimonial evidence and conclude whether the respondent’s proof meets the high clear-and-convincing standard before denying remedies.

If no timely petition for review is filed with the Administrative Review Board (ARB), the ALJ’s decision becomes the final order of the Secretary as described in 1985.109(e).

• Once final, the decision is enforceable under the mechanisms available to the Department of Labor or the courts, depending on the procedural posture.

Yes. An ALJ may dispose of the matter without a hearing if the facts and circumstances warrant it, including when the record supports a decision on the merits or when jurisdictional issues prevent a hearing, as explained in 1985.109(c).

• Examples: undisputed facts that clearly show no violation, or legal deficiencies that allow a ruling on the written record.

Besides the parties, the ALJ decision must be served on the Assistant Secretary and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, as stated in 1985.109(e).

• This ensures departmental offices responsible for enforcement and review receive the decision promptly.