ALJ decision and orders

The ALJ must include appropriate findings, conclusions, and an order addressing remedies and may find a violation only if the complainant proves by a preponderance of the evidence that protected activity was a contributing factor in the adverse action. Under 1987.109(a), the decision must state the ALJ’s factual findings and legal conclusions and, where warranted, order remedies described in paragraph (d).

• "Preponderance of the evidence" means the complainant must show it is more likely than not that protected activity contributed to the adverse action (see 1987.109(a)).

Yes. Relief may be denied if the respondent proves by clear and convincing evidence that it would have taken the same adverse action even without the protected activity. The respondent bears the higher "clear and convincing" burden under 1987.109(b), which requires a firm belief or high probability that the asserted nondiscriminatory reason was the actual cause.

No. The ALJ may not review OSHA's determination to dismiss without completing an investigation under [1987.104(e)]. Per 1987.109(c), neither OSHA’s decision to dismiss under 1987.104(e) nor its decision to proceed with an investigation is subject to ALJ review, and a complaint may not be remanded just because OSHA dismissed it in error.

The ALJ can order affirmative abatement, reinstatement with compensation and terms of employment, and compensatory damages including costs and fees when appropriate. Specifically, 1987.109(d)(1) authorizes:

• Affirmative action to abate the violation;
• Reinstatement of the complainant to the former position with compensation (including back pay and interest), and restoration of terms, conditions, and privileges of employment;
• Payment of compensatory damages, which at the complainant’s request may include the aggregate amount of all reasonable costs and expenses (including attorney and expert witness fees).

The order may also require related administrative actions such as Social Security Administration allocations for back pay.

If the ALJ finds no violation, the ALJ will issue an order denying the complaint; if the respondent requested it and the ALJ finds the complaint frivolous or brought in bad faith, the ALJ may award the respondent reasonable attorney fees up to $1,000. 1987.109(d)(2) states that a denial is entered when no violation is found and permits a limited fee award to respondents when the complaint is frivolous or in bad faith.

The decision must be served on all parties, the Assistant Secretary, and the Associate Solicitor, and reinstatement orders become effective immediately upon the respondent’s receipt while other portions become effective 14 days after the decision unless a timely petition for review is filed. 1987.109(e) requires service on all parties and specified Department of Labor officials, makes reinstatement effective upon respondent receipt, and makes other portions effective 14 days after the decision unless a timely petition for review to the ARB is filed.

Interest on back pay is calculated using the rate applicable to underpayments of taxes under 26 U.S.C. 6621 and is compounded daily. The method for computing interest on back pay awards is specified in 1987.109(d)(1).

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 calendar quarters. This obligation is set out in 1987.109(d)(1).

No. A complaint may not be remanded for completion of an investigation or additional findings on the ground that OSHA erred in dismissing it; if jurisdiction otherwise exists, the ALJ will decide the case on the merits or dispose of it without a hearing. This limitation on remand is explicit in 1987.109(c) and is tied to OSHA’s dismissal authority under 1987.104(e).

The ALJ 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. That finality rule is stated in 1987.109(e).

The ALJ may award the respondent a reasonable attorney fee not exceeding $1,000 if the ALJ determines, upon the respondent’s request, that the complaint was frivolous or brought in bad faith. This limit is set in 1987.109(d)(2).

Practically, "preponderance of the evidence" means the complainant must show it is more likely than not that protected activity contributed to the adverse action; this is the burden required for a finding of violation under 1987.109(a).

• In plain terms: the complainant’s evidence must tip the scales just over 50 percent in favor of their claim for the ALJ to find a violation.

The "clear and convincing" standard requires a higher level of certainty than a preponderance; the respondent must show a high probability or firm belief that it would have taken the same adverse action regardless of protected activity. This distinction is spelled out in 1987.109(b), where satisfying the respondent’s burden can bar relief even if the complainant met the preponderance standard.

Compensatory damages can include attorney and expert witness fees only at the complainant’s request and to the extent the ALJ awards the aggregate of reasonable costs and expenses. 1987.109(d)(1) permits the ALJ to order payment of compensatory damages that, upon request, include aggregate costs and reasonable attorney and expert witness fees.

The respondent must effect reinstatement immediately upon receiving the ALJ’s decision when the order requires reinstatement or lifting an Assistant Secretary reinstatement order. This timing requirement is stated in 1987.109(e).