ALJ decisions and orders

The ALJ must include appropriate findings, conclusions, and an order addressing the remedies in paragraph (d) when applicable. See the requirement in 1989.109(a).

• The findings explain what facts the ALJ relied on.
• The conclusions explain how the law applies to those facts.
• The order directs what relief, if any, will be provided under 1989.109(d).

The complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse action. See the burden of proof in 1989.109(b).

• "Preponderance of the evidence" means it is more likely than not that protected activity contributed to the adverse action.
• If the complainant cannot meet this burden, the ALJ cannot find a violation under this rule.

A respondent can avoid ordered relief by proving by clear and convincing evidence that it would have taken the same adverse action regardless of the protected activity. See the defense in 1989.109(c).

• "Clear and convincing" is a higher standard than preponderance and requires a firm belief in the truth of the respondent’s evidence.
• If the respondent meets this standard, the ALJ may deny relief even though the complainant showed protected activity was a contributing factor.

No — an ALJ cannot review OSHA’s decision to dismiss a complaint without completing an investigation under 1989.104(e), nor can the ALJ remand the case for further investigation based on that determination. See 1989.104(e) and 1989.109(c).

• If OSHA dismisses a complaint under 1989.104(e), that dismissal is not subject to ALJ review.
• If there is otherwise jurisdiction and OSHA proceeds with an investigation, the ALJ will hear the merits or dispose without a hearing as appropriate.

The ALJ can order all relief necessary to make the complainant whole, including reinstatement with proper seniority, a monetary award equal to 200% of back pay plus 100% of lost benefits (with interest), and compensation for special damages such as litigation costs and attorney fees. See 1989.109(d)(1).

• Reinstatement must restore the complainant’s seniority status as if retaliation had not occurred.
• Monetary relief includes: 200% of back pay, 100% of lost benefits, plus interest compounded daily under 26 U.S.C. 6621(a)(2).
• Special damages can include litigation costs, expert witness fees, and reasonable attorney fees.
• The ALJ will also require the respondent to provide documentation to the Social Security Administration to allocate back pay to the correct periods.

If the ALJ determines the respondent did not violate the law, the ALJ will issue an order denying the complaint. See 1989.109(d)(2).

• The denial constitutes the ALJ’s final disposition at the ALJ level unless a timely petition for review is filed with the ARB.
• The decision will be served on all parties and other required officials as described in 1989.109(e).

Interest on back pay is calculated using the interest rate for tax underpayments found in 26 U.S.C. 6621(a)(2) and is compounded daily. See the interest provision in 1989.109(d)(1).

• The ALJ’s order will specify the interest calculation and compounding.
• The respondent must also provide appropriate documentation to the SSA to allocate back pay to the correct time periods.

An ALJ may award a respondent reasonable attorney fees of up to $1,000 if, upon the respondent’s request, the ALJ finds the complaint was frivolous or brought in bad faith. See 1989.109(e).

• The award is discretionary and limited to a maximum of $1,000.
• The respondent must request the award and the ALJ must make a finding of frivolousness or bad faith.

An ALJ decision requiring reinstatement (or lifting an order of reinstatement by the Assistant Secretary) becomes effective immediately upon the respondent’s receipt of the decision. See the effectiveness rules in 1989.109(e).

• Immediate effectiveness applies only to reinstatement-related orders.
• Other portions of the ALJ’s order become effective 30 days after the decision unless a timely petition for review is filed with the ARB.

All other portions of an ALJ’s order (other than reinstatement orders) become effective 30 days after the decision unless a timely petition for review is filed with the Administrative Review Board (ARB) and the ARB accepts the petition. See 1989.109(e).

• Filing a timely petition for review with the ARB delays finality only if the ARB accepts the petition.
• If no petition is filed or the ARB does not accept review, the ALJ’s decision becomes the final order of the Secretary.

The ALJ’s decision must be served on all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. See the service requirement in 1989.109(e).

• OSHA and the Associate Solicitor may specify electronic or other means for service.
• Proper service starts the timelines for effectiveness and any petitions for review.

Yes — if the facts and circumstances warrant and the ALJ has jurisdiction, the ALJ may dispose of the matter without a hearing. See 1989.109(d).

• "Dispose without a hearing" can include decisions on motions, summary disposition, or other procedures consistent with the record.
• The ALJ still must issue findings and conclusions explaining the basis for disposition.

A complainant must show by a preponderance of the evidence that protected activity was a contributing factor in the adverse action to establish a violation and proceed to remedies. See 1989.109(b).

• Showing contributory protected activity establishes the threshold for relief unless the respondent proves otherwise by clear and convincing evidence under 1989.109(c).
• The ALJ will analyze the evidence in findings and conclusions as required by 1989.109(a).

The respondent must submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods. See the documentation requirement in 1989.109(d)(1).

• This ensures the complainant’s Social Security records accurately reflect earnings for the periods covered by back pay.
• The ALJ’s order will specify what documentation is required and the timing for submission.

If no timely petition for review is filed with the ARB (or the ARB does not accept a filed petition), the ALJ’s decision becomes the final order of the Secretary. See 1989.109(e).

• Finality starts enforcement timelines and the decision’s effective dates as described in the regulation.
• Parties must follow ARB filing rules to challenge the ALJ decision within the allowed period.

Yes — OSHA and the Associate Solicitor for Fair Labor Standards may specify electronic or other means for service of ALJ decisions under this section. See the service provision in 1989.109(e).

• Parties should follow any specified electronic service procedures to ensure timely receipt.
• Electronic service, once implemented, counts as service for triggering effectiveness and appeal timeframes.

Special damages may include compensation for litigation costs, expert witness fees, and reasonable attorney fees incurred as a result of the retaliation. See the list of special damages in 1989.109(d)(1).

• The ALJ will determine which special damages are appropriate based on the evidence submitted.
• Reasonable attorney fees are a recoverable component of special damages when the ALJ orders relief.

Yes — the ALJ will provide "all relief necessary to make the complainant whole," which can include the listed remedies and other appropriate actions consistent with the statute and facts. See the remedial authority in 1989.109(d)(1).

• Remedies must be tailored to fully redress the harm from retaliation (e.g., reinstatement, monetary awards, special damages).
• The ALJ’s findings and conclusions must explain the relief awarded as required by 1989.109(a).

No — OSHA’s determination to proceed with an investigation is not subject to review by the ALJ. See 1989.109(c).

• The ALJ’s role is to hear the merits of the complaint if OSHA has jurisdiction and has completed its investigation.
• Challenges to OSHA’s investigative decisions must be addressed through other administrative processes, not ALJ review under this section.