Findings and preliminary orders

OSHA must issue written findings within 60 days of the filing of the complaint. This requirement appears in 1989.105(a).

• The 60-day clock begins on the date the complaint is filed.
• The finding will say whether there is reasonable cause to believe retaliation occurred.

If the Assistant Secretary finds reasonable cause, OSHA will issue a preliminary order that provides relief to the complainant. This is required by 1989.105(a)(1).

• The preliminary order accompanies the written findings.
• The preliminary order is intended to provide relief necessary to make the complainant whole.

A preliminary order can include reinstatement and monetary awards such as 200% of back pay, 100% of lost benefits, interest, and compensation for special damages including attorney fees. These forms of relief are described in 1989.105(a)(2).

• Reinstatement with the same seniority the complainant would have had but for the retaliation.
• 200% of the amount of back pay and 100% of all lost benefits, with interest.
• Compensation for special damages (e.g., litigation costs, expert witness fees, reasonable attorney fees).
• Interest on back pay is calculated using the rate under 26 U.S.C. 6621(a)(2) and compounded daily.
• Where appropriate, OSHA may require documentation to be submitted to the Social Security Administration to allocate back pay to proper periods.

Interest on back pay is calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and is compounded daily. This calculation method is specified in 1989.105(a)(2).

• OSHA will apply the specified federal tax underpayment rate and compound it daily when computing interest on back pay awards.

Yes, where appropriate the preliminary order can require the respondent to submit documentation to the Social Security Administration allocating back pay to the correct periods. This requirement is described in 1989.105(a)(2).

• This ensures accurate earnings records and proper crediting of wages for benefit purposes.

Special damages can include litigation costs, expert witness fees, and reasonable attorney fees. This list is provided in 1989.105(a)(2).

• Special damages cover monetary harms tied directly to the retaliation, including costs reasonably incurred to pursue the claim.

If the Assistant Secretary concludes no violation occurred, OSHA will notify the parties of that finding. This is stated in 1989.105(a)(2).

• The notice informs both complainant and respondent that OSHA did not find reasonable cause to believe retaliation occurred.

OSHA will send the findings and any preliminary order by physical or electronic means that allow OSHA to confirm delivery to all parties of record. This delivery method requirement is set out in 1989.105(b).

• Delivery can be by mail with tracking, hand delivery with acknowledgment, or electronic methods that generate delivery confirmation.
• If a party is represented by counsel, OSHA may send documents to the party's legal counsel.

The findings and any preliminary order will inform the parties of their right to object, request a hearing, and the respondent's right to request an award of attorney fees not exceeding $1,000 from the ALJ if the respondent alleges the complaint was frivolous or in bad faith. This is described in 1989.105.

• The notice will also give the address of the Chief Administrative Law Judge or information for electronic filing with the Office of Administrative Law Judges.
• The findings may specify how to serve OSHA and the Associate Solicitor for Fair Labor Standards with documents in the litigation.

OSHA will file a copy of the original complaint and the findings and/or order with the Chief Administrative Law Judge at the same time the findings/order are issued. This filing is required by 1989.105(c).

• That filing initiates the administrative record and supports any subsequent adjudication before the ALJ.

Findings and any preliminary order become effective 30 days after receipt by the respondent (or counsel), or on the compliance date set in the order, whichever is later, unless a timely objection or request for hearing is filed under 1989.106. See 1989.105(c).

• This 30-day effectiveness period gives respondents time to object or request a hearing as provided in 1989.106.

No; any portion of a preliminary order requiring reinstatement is effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of objections or requests for hearing. This rule is specified in 1989.105(c).

• Reinstatement is treated as urgent relief to place the complainant back in their position pending further proceedings.

The findings may provide the address of the Chief Administrative Law Judge or information about filing objections electronically with the Office of Administrative Law Judges and may also specify means for serving OSHA and the Associate Solicitor with documents. This is described in 1989.105.

• OSHA may include instructions for electronic filing if that option is available and acceptable under the rules.

If a party is represented by counsel, OSHA will send the findings and any preliminary order to the party's legal counsel. This is required by 1989.105(b).

• Delivery to counsel must still allow OSHA to confirm receipt.

Yes; the respondent may 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 right is described in 1989.105.

• The request for attorney fees is made to the ALJ and can be filed regardless of whether the respondent has filed objections to the findings or order.

The preliminary order must include all relief necessary to make the complainant whole, which can include reinstatement, back pay (including 200% of back pay and 100% of lost benefits), interest, and compensation for special damages. This obligation is stated in 1989.105(a)(2).

• The order should be tailored to the complainant's losses and may include documentation requirements to correctly allocate back pay for benefits reporting.

When the Assistant Secretary issues findings and/or a preliminary order, OSHA will simultaneously file a copy of the original complaint and those findings/orders with the Chief Administrative Law Judge. This is required by 1989.105(c).

• That simultaneous filing helps ensure the ALJ has the administrative record if the case proceeds to a hearing.

Electronic delivery methods that allow OSHA to confirm receipt—such as systems that generate delivery receipts or electronic transmission logs—satisfy the confirmation requirement in 1989.105(b).

• Examples include tracked email systems or electronic filing portals that provide timestamps and confirmation of delivery.
• OSHA must be able to verify that the party or counsel received the documents.

The regulation states that the Assistant Secretary will issue findings within 60 days of the filing of the complaint, and it does not provide for routine extensions in the text of 1989.105(a).

• Any deviation from the 60-day timeline would need to be justified by circumstances or authorized procedures not described in this section.

If the respondent receives the findings and does not file a timely objection or request a hearing under 1989.106, the findings and any preliminary order become effective 30 days after receipt or on the order's compliance date, whichever is later, as stated in 1989.105(c).

• Exception: any reinstatement requirement in a preliminary order is effective immediately upon receipt, even if no objection is filed.

The findings and any preliminary order must be sent to all parties of record or each party's legal counsel if represented, using a method that allows OSHA to confirm delivery, per 1989.105(b).

• "All parties of record" means the complainant, the respondent, and their representatives as noted in the case file.