Findings and preliminary orders

The Assistant Secretary must issue written findings within 60 days of the filing of the complaint. This is required under 1987.105(a).

• The 60-day clock starts on the date the complaint is filed, not from when the investigation begins. See 1987.105(a).

If OSHA finds reasonable cause, the Assistant Secretary will issue written findings accompanied by a preliminary order that provides relief to the complainant. This requirement is set out in 1987.105(a)(1).

• The preliminary order is the mechanism OSHA uses to require corrective action when reasonable cause is found. See 1987.105(a)(1).

A preliminary order can require affirmative action to abate the violation; reinstatement with compensation (including back pay and interest) and restoration of employment terms and privileges; and payment of compensatory damages and, at the complainant's request, reasonable costs and expenses such as attorney and expert witness fees. These remedies are listed in 1987.105(a)(1).

• Interest on back pay is compounded daily and calculated using the rate in 26 U.S.C. 6621. See 1987.105(a)(1).
• The order may also require the respondent to provide documentation to the Social Security Administration allocating back pay to the proper calendar quarters. See 1987.105(a)(1).

If OSHA concludes a violation has not occurred, the Assistant Secretary will notify the parties of that finding. This is described in 1987.105(a)(2).

• The notification lets parties know the investigation did not produce reasonable cause to issue a preliminary order. See 1987.105(a)(2).

OSHA must send findings and any preliminary order by means that allow OSHA to confirm delivery to all parties of record and to each party's legal counsel if the party is represented. This requirement appears in 1987.105(b).

• Practical examples of methods that allow confirmation include certified mail with return receipt, courier services with tracking and signature, or an acknowledged electronic filing system, but the text itself only requires a method that permits OSHA to confirm delivery. See 1987.105(b).

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 order, whichever is later, unless a timely objection or hearing request is filed as provided at 1987.106. This is described in 1987.105(c).

• If a compliance date in the order is later than 30 days, the compliance date controls. See 1987.105(c).

Yes. Any portion of a preliminary order requiring reinstatement is effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections. This immediate effect is stated in 1987.105(c).

• Other parts of the preliminary order may be stayed by a timely objection or hearing request under 1987.106, but reinstatement specifically takes effect upon receipt. See 1987.105(c).

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 1987.105(a)(1).

• Employers required to pay back pay should expect daily compounding of interest at the statutory tax underpayment rate. See 1987.105(a)(1).

Yes. At the complainant's request, the preliminary order may require payment of the aggregate amount of all costs and expenses reasonably incurred, including attorney and expert witness fees. This is provided in 1987.105(a)(1).

• The fees and expenses must be reasonable and the complainant must request them for the preliminary order to address them. See 1987.105(a)(1).

The findings and any preliminary order will inform the parties of the right to object and request a hearing and will inform the respondent of the right to request an award of attorney fees (not exceeding $1,000) from the administrative law judge if the respondent alleges the complaint was frivolous or brought in bad faith. This notice requirement is in 1987.105(c).

• The findings/order will also give the address of the Chief Administrative Law Judge or information for filing objections electronically. See 1987.105(c).

Yes. The findings and any preliminary order must be sent by means that allow OSHA to confirm delivery to all parties of record and to each party's legal counsel if the party is represented. This requirement is stated in 1987.105(b).

• That means OSHA must be able to verify that both the party and their counsel received the documents if counsel represents the party. See 1987.105(b).

The Assistant Secretary must file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order at the same time the findings and/or preliminary order are issued. This filing requirement is in 1987.105(c).

• This ensures the Office of Administrative Law Judges has the case materials if a party files objections or requests a hearing. See 1987.105(c).

The 60-day deadline begins on the filing date of the complaint. The Assistant Secretary must issue written findings within 60 days of that filing under 1987.105(a).

• Timely filing is what triggers the statutory 60-day period, so keeping clear records of the complaint filing date is important. See 1987.105(a).

Reinstatement includes returning the complainant to their former position together with compensation (including back pay and interest), and restoring the terms, conditions, and privileges of employment. This is detailed in 1987.105(a)(1).

• The preliminary order can require the respondent to make the complainant whole for lost wages and to restore any lost job rights or benefits. See 1987.105(a)(1).

Yes. The preliminary order will require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. This requirement is included in 1987.105(a)(1).

• Proper SSA allocation ensures the complainant receives correct earnings credits and benefits for the periods covered by back pay. See 1987.105(a)(1).

Yes. The respondent has the right to 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, as stated in 1987.105(c).

• That right exists regardless of whether the respondent files objections. See 1987.105(c).

Employers should expect OSHA to use a delivery method that allows OSHA to confirm that all parties of record and any represented counsel received the findings and orders. This requirement is in 1987.105(b).

• While the regulation does not list specific methods, confirmation can come from return receipts, courier signatures, or electronic acknowledgement systems that provide verifiable proof of delivery. See 1987.105(b).

If a timely objection or request for hearing is filed as provided at 1987.106, the findings and preliminary order will not become effective until the later of 30 days after receipt or the compliance date set in the order, except that reinstatement provisions remain effective immediately upon receipt. This is explained in 1987.105(c).

• In short, objections can delay most relief, but reinstatement ordered in the preliminary order takes effect right away. See 1987.105(c).