ALJ decisions and orders

The complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the alleged adverse action. See 1986.109(a).

• "Preponderance of the evidence" means it is more likely than not that the protected activity contributed to the adverse action.

A respondent can avoid relief by proving by clear and convincing evidence that it would have taken the same adverse action absent any protected activity. See 1986.109(b).

• "Clear and convincing evidence" is a higher standard than preponderance and requires proof that the respondent's claim is highly probable or reasonably certain.
• Practically, employers should document independent reasons for their action (e.g., performance records, contemporaneous evaluations) to meet this defense.

The ALJ must include appropriate findings, conclusions, and an order addressing the remedies listed in paragraph (d) when applicable. See 1986.109(a).

• Findings: factual determinations about what happened.
• Conclusions: legal determinations about whether the law was violated.
• Order: the specific remedies or denial, as authorized in 1986.109(d).

No; the ALJ may not review the Assistant Secretary's decision either to dismiss a complaint under 1986.104(e) or to proceed with an investigation. See 1986.109(c).

• If there is jurisdiction, the ALJ will hear the case on the merits or dispose of it without a hearing regardless of whether a dismissal decision might have been made in error.

No; a complaint may not be remanded for completion of an investigation simply because the Assistant Secretary dismissed it under 1986.104(e). See 1986.109(c).

• The ALJ's role is limited to hearing the case on the merits if jurisdiction exists or disposing of the matter without a hearing when warranted.

The ALJ may order affirmative relief including abatement, reinstatement with the same compensation/terms, payment of compensatory damages (back pay with interest and special damages such as litigation costs and reasonable fees), and punitive damages up to $250,000. See 1986.109(d)(1).

• Back pay interest is compounded daily using the rate in 26 U.S.C. 6621.
• Compensatory damages can include litigation costs, expert witness fees, and reasonable attorney fees.

The ALJ will issue an order denying the complaint if it determines there was no violation. See 1986.109(d)(2).

• This order resolves the case in the respondent's favor, subject to any timely appeal to the ARB as described in 1986.109(e).

A decision ordering reinstatement becomes effective immediately upon receipt of the decision by the respondent. See 1986.109(e).

• Other parts of the ALJ's order become effective 14 days after the decision unless a timely petition for review is filed with the ARB.

All parts of the ALJ's order except reinstatement become effective 14 days after the decision unless a timely petition for review is filed with the ARB, in which case the order may not become final. See 1986.109(e).

• Filing a timely petition for review with the ARB can stay the effective date if the ARB accepts the case for review.

The decision must be served on all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. See 1986.109(e).

• Proper service ensures all stakeholders are informed and that timelines for effectiveness and appeals run from receipt.

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. See 1986.109(d)(1).

• Employers and complainants should compute daily compounded interest using the IRS rate specified at the relevant time under 26 U.S.C. 6621.

An ALJ may award punitive damages up to $250,000. See 1986.109(d)(1).

• Punitive damages are awarded in addition to compensatory damages where the facts justify such punishment.

Yes; if the facts and circumstances warrant, the ALJ may dispose of the matter without a hearing. See 1986.109(c).

• This can occur when the record is adequate for decision or when the parties agree to resolution without a hearing.

The ALJ decision becomes the final order of the Secretary unless a timely petition for review is filed with the ARB and the ARB accepts the decision for review. See 1986.109(e).

• Filing a petition for review is the procedural step needed to seek further review by the ARB.