Administrative Review Board decisions

You must file a written petition for review within 30 days of the date of the ALJ decision. See 1991.110(a).

• The petition must be in writing and identify the legal conclusions or orders you object to or those objections may be waived.
• All petitions and documents must be filed in accordance with 29 CFR part 26 as required in the same provision.

The date of the postmark, facsimile transmittal, or electronic transmittal is treated as the date of filing; filings made in person or by hand delivery are filed upon receipt. See 1991.110(a).

• Use certified mail or retain electronic confirmation when relying on postmark/electronic transmission to prove filing date.
• If you hand-deliver, keep proof of receipt to document the filing date.

The petition must be served on all parties, the Chief Administrative Law Judge, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, at the time it is filed with the ARB. See 1991.110(a).

• OSHA and the Associate Solicitor may specify acceptable means of service, including electronic service.

If a timely petition is filed, the ALJ decision will become the final order of the Secretary unless the ARB issues an order accepting the case for review within 30 days of the petition filing. See 1991.110(b).

• If the ARB accepts review, the ALJ decision is inoperative unless and until the ARB adopts it, except that reinstatement orders remain effective during review unless a stay is granted.
• The ARB will set briefing schedules and reviews factual findings under the substantial evidence standard.

Yes; an ALJ order of reinstatement remains effective during ARB review unless the ARB grants the respondent a stay based on exceptional circumstances. See 1991.110(b).

• A respondent seeking a stay must demonstrate exceptional circumstances to the ARB.

The ARB reviews the ALJ's factual determinations under the substantial evidence standard. See 1991.110(b).

• Legal conclusions and application of law are reviewed de novo (as legal issues), while factual findings require substantial evidence support.

The ARB will issue its decision within 120 days of the conclusion of the hearing, which is generally deemed to be 30 days after the ALJ decision unless a motion for reconsideration is filed. See 1991.110(c).

• If a motion for reconsideration is filed, the hearing concludes when that motion is ruled upon or 30 days after a new decision is issued, and the 120-day clock runs from that date.
• The ARB will serve its decision on the parties, the Chief ALJ, the Assistant Secretary, and the Associate Solicitor.

No; if a timely petition for review is not filed, the resulting final order is not subject to judicial review. See 1991.110(c).

• Filing the timely petition for review with the ARB is therefore critical if a party wishes to preserve the right to seek further judicial review.

If the ARB finds a violation, it will order all relief necessary to make the complainant whole, such as reinstatement with appropriate seniority, back pay with interest, and compensation for special damages including litigation costs and reasonable attorney fees. See 1991.110(d).

• The ARB crafts relief to fully remedy the retaliation, including expert witness fees and other reasonable litigation-related costs when appropriate.

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 1991.110(e).

• The ARB requires proper calculation and compounding of interest for back pay awards.

The respondent must submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods. See 1991.110(e).

• This ensures accurate Social Security reporting for wage and benefit entitlements.

Yes; upon a respondent's request, the ARB may award a reasonable attorney fee not exceeding $1,000 if it determines the complaint was frivolous or brought in bad faith. See 1991.110(e).

• Such a fee award is discretionary and limited to the statutory cap.

Yes; ARB orders are subject to discretionary review by the Secretary as provided in Secretary’s Order 01–2020 or any successor thereto. See 1991.110(e).

• Parties should be aware that the Secretary may elect to review ARB decisions on a discretionary basis.

If the ARB accepts review within 30 days of the petition filing, the ALJ decision becomes inoperative unless and until the ARB issues an order adopting it. See 1991.110(b).

• The ARB will set terms for briefs and proceed to review the case, including factual findings under the substantial evidence standard.

A petition must identify the legal conclusions or orders being objected to; failure to identify objections may result in waiver of those objections. See 1991.110(a).

• Be specific in the petition about which findings or rulings you challenge and the legal basis for each objection.

The Administrative Review Board will specify the terms under which any briefs are to be filed after it accepts a case for review. See 1991.110(b).

• Parties should follow the ARB's briefing schedule and format requirements when submitted.

If a motion for reconsideration is filed, the hearing is concluded when that motion is ruled upon or 30 days after a new decision is issued, and the ARB's 120-day decision clock runs from that conclusion date. See 1991.110(c).

• This definition affects the timing for the ARB to issue its decision.

If the ARB denies review, the ALJ decision becomes the final order of the Secretary. See 1991.110(b).

• Parties can then seek any further remedies available under law, subject to the timing and jurisdictional limits.

The ARB may award special damages sustained as a result of retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. See 1991.110(d).

• Special damages are awarded to make the complainant whole for losses directly tied to the retaliatory action.

Yes; electronic transmittal can be used and the date of electronic transmittal may be treated as the filing date, and OSHA and the Associate Solicitor may specify electronic means for service. See 1991.110(a) and 1991.110(b).

• Always follow any specific electronic filing or service procedures set by OSHA or the Associate Solicitor to ensure compliance.

If the ARB determines there was no violation, it will issue an order denying the complaint. See 1991.110(e).

• The order denying the complaint may itself be subject to discretionary review by the Secretary.

All petitions and documents submitted to the ARB must be filed in accordance with 29 CFR part 26, as required in 1991.110(a).

• Parties should consult 29 CFR part 26 for detailed filing procedures and formatting requirements to ensure acceptance.

Yes; the ARB can grant a motion by the respondent to stay an ALJ reinstatement order during review, but only based on exceptional circumstances. See 1991.110(b).

• The respondent seeking a stay bears the burden of showing exceptional circumstances to justify suspending reinstatement.