Subpart B
The complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged. See 1988.109(a) for the requirement that the ALJ may find a violation only if this burden is satisfied.
The respondent can avoid relief by proving with clear and convincing evidence that it would have taken the same adverse action even without the complainant's protected activity. See 1988.109(b) for the respondent's affirmative defense standard.
No; the ALJ cannot review OSHA's determination to dismiss a complaint or to proceed with an investigation under 1988.104(e). See 1988.109(c) and 1988.104(e) which state that ALJs will hear the case on its merits (if there is jurisdiction) rather than remanding for additional investigation.
An ALJ can order affirmative action to abate the violation; reinstatement with compensation (including back pay and interest), terms, conditions, and privileges of employment; and payment of compensatory damages, which at the complainant's request may include reasonable costs and expenses such as attorney and expert witness fees. See 1988.109(d) and 1988.109(d)(1) for the list of appropriate remedies.
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 1988.109(d)(1) and the federal tax-interest reference at 26 U.S.C. 6621 as cited in the regulation.
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 proper calendar quarters. See 1988.109(d)(1).
If the ALJ finds no violation, 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 a reasonable attorney fee not exceeding $1,000. See 1988.109(d)(2).
An ALJ decision requiring reinstatement becomes effective immediately upon receipt of the decision by the respondent. See 1988.109(e).
All portions of the ALJ's order other than those requiring reinstatement will become effective 14 days after the date of the decision unless a timely petition for review is filed with the Administrative Review Board (ARB). See 1988.109(e).
An ALJ decision becomes the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review. See 1988.109(e).
The ALJ must include appropriate findings, conclusions, and an order addressing the remedies provided in paragraph (d) where appropriate. See 1988.109(a) for the required contents of the decision.
No; an ALJ may not remand the case for more investigation just because OSHA previously dismissed the complaint. If there is jurisdiction, the ALJ will hear the case on the merits or dispose of it without a hearing as the facts warrant. See 1988.109(c) and 1988.104(e).
The decision must be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. See 1988.109(e).
The ALJ may award the respondent a reasonable attorney fee not exceeding $1,000 if the complaint is determined to be frivolous or brought in bad faith at the respondent's request. See 1988.109(d)(2).
The complainant bears the burden of proving a violation by a preponderance of the evidence (more likely than not), and if that burden is met, the respondent then may avoid relief only by proving with clear and convincing evidence (a higher standard) that it would have taken the same adverse action absent protected activity. See both 1988.109(a) and 1988.109(b).
Yes; at the complainant's request, compensatory damages may include the aggregate amount of all costs and expenses reasonably incurred, including attorney and expert witness fees. See 1988.109(d)(1).
No; reinstatement ordered by the ALJ is effective immediately upon the respondent's receipt of the decision and is not stayed automatically by a petition for review. See 1988.109(e).
Yes; the ALJ may dispose of the matter without a hearing if the facts and circumstances warrant it, provided there is jurisdiction. See 1988.109(c).