ALJ decisions and orders

The complainant must prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged. See 1991.109(a).

• "Preponderance of the evidence" means it is more likely than not that the protected activity contributed to the adverse action.
• This is the complainant's initial burden before any defenses by the respondent are considered.

The respondent can avoid an order of relief by proving by clear and convincing evidence that it would have taken the same adverse action even without any protected activity. See 1991.109(b).

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

No. The ALJ may not review OSHA’s determination to dismiss a complaint without completing an investigation under 1991.104(e), nor can the ALJ remand the case for more investigation on that basis. See 1991.109(c).

• If the ALJ otherwise has jurisdiction, the ALJ will hear the merits or dispose of the matter without a hearing, but cannot order additional investigation solely because OSHA dismissed the complaint.

The ALJ can order all relief necessary to make the complainant whole, including reinstatement with the same seniority, back pay with interest, and compensation for special damages such as litigation costs and attorney fees. See 1991.109(d)(1).

• Reinstatement should restore the complainant’s seniority status as if the retaliation had not occurred.
• Back pay must include interest computed using the tax underpayment rate in 26 U.S.C. 6621(a)(2) and compounded daily.
• Special damages can include expert witness fees and reasonable attorney fees.
• The order may also require the respondent to submit documentation to the Social Security Administration allocating any back pay to the proper periods.

The ALJ will issue an order denying the complaint if they determine the respondent did not violate the law. See 1991.109(d)(2).

• A denial order concludes the ALJ’s findings on the merits unless a timely petition for review is filed with the Administrative Review Board (ARB) and accepted.

An ALJ’s decision requiring reinstatement is effective immediately upon the respondent’s receipt of the decision. See 1991.109(e).

• This immediate effectiveness applies to decisions requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary.
• Other portions of the ALJ’s order follow separate timing rules.

All other parts of the ALJ’s order become effective 30 days after the date of the decision unless a timely petition for review is filed with the ARB. See 1991.109(e).

• Filing a timely petition for review with the ARB can stay the 30-day effective date for those parts of the order.

An ALJ’s 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 1991.109(e).

• A timely petition must be filed according to ARB rules; acceptance by the ARB is required for review to proceed.

ALJ decisions are served on all parties, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, and OSHA may specify electronic means for service. See 1991.109(e).

• OSHA and the Associate Solicitor may set the acceptable methods, including electronic service.
• Proper service is necessary to trigger effectiveness rules such as immediate reinstatement on respondent receipt.

If the ALJ orders back pay, the ALJ may require the respondent to submit documentation to the Social Security Administration allocating the back pay to the appropriate periods. See 1991.109(d)(1).

• This allocation ensures proper crediting of earnings and Social Security records for the complainant.

Interest on back pay is calculated using the rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and is compounded daily. See 1991.109(d)(1).

• The ALJ’s order will specify interest accrual and compounding consistent with the referenced tax code rate.

If the ALJ finds the complaint frivolous or brought in bad faith at the respondent’s request, the ALJ may award the respondent a reasonable attorney fee not exceeding $1,000. See 1991.109(e).

• The fee award is discretionary and capped at $1,000.

Yes. If there is jurisdiction, the ALJ may hear the case on the merits or dispose of the matter without a hearing when the facts and circumstances warrant. See 1991.109(d).

• A disposition without a hearing typically occurs when the record and filings allow the ALJ to rule as a matter of law or agreed facts.

When the ALJ finds a violation, the decision must contain appropriate findings, conclusions, and an order addressing remedies under paragraph (d). See 1991.109(a) and 1991.109(d).

• Remedies may include reinstatement, back pay with interest, and compensation for special damages as appropriate.

The ALJ determines a violation occurred only if the complainant proves by a preponderance of the evidence that protected activity was a contributing factor; the respondent can then rebut by clear and convincing evidence that it would have taken the same action regardless. See 1991.109(a) and 1991.109(b).

• This creates a two-step assessment: complainant shows contribution by preponderance, respondent can avoid relief with a higher clear-and-convincing proof.

Besides the parties, the ALJ’s decision is served on the Assistant Secretary and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. See 1991.109(e).

• OSHA and the Associate Solicitor may also set electronic service procedures.

OSHA’s decision to dismiss a complaint without completing an investigation or to proceed with an investigation is not subject to ALJ review, and the ALJ may not remand a complaint solely because OSHA dismissed it. See 1991.109(c) and 1991.104(e).

• If jurisdiction otherwise exists, the ALJ proceeds on the merits regardless of OSHA’s earlier dismissal decision.