Findings and preliminary orders

OSHA must issue written findings within 60 days of the filing of the complaint. The regulation requires the Assistant Secretary to issue findings "within 60 days of the filing of the complaint" after considering the investigation, as described in 1992.105(a).

• This 60-day clock begins on the date the complaint is filed.
• If the Assistant Secretary needs more time, the regulation does not authorize ignoring this deadline; any delay should be addressed through agency procedures or by contacting OSHA for status.

A preliminary order can include reinstatement, doubled back pay, compensatory damages, and other appropriate relief. The rule lists specific remedies such as reinstatement with the same seniority, two times the back pay owed with interest, compensatory damages (including litigation costs, expert witness fees, and reasonable attorney fees), and any other appropriate remedy, as set out in 1992.105(a)(1).

• "Two times the amount of back pay" is a statutory-type make-whole remedy intended to deter retaliation.
• The preliminary order may tailor remedies to the facts of the case (for example, specifying reinstatement or front pay where reinstatement is impracticable).

Interest on any back pay award is calculated using the interest rate for underpayment of taxes under 26 U.S.C. 6621 and is compounded daily. The regulation specifies this method for computing interest on back pay in the preliminary order, as described in 1992.105.

• Use the current interest rates and compounding rules that apply under 26 U.S.C. 6621 for the relevant periods.
• The preliminary order may also require documentation to the Social Security Administration allocating back pay to proper periods, if appropriate.

OSHA will send findings and any preliminary order by physical or electronic means that allow OSHA to confirm delivery to all parties or their counsel. The regulation requires confirmed delivery methods and states the findings and order "will be sent by physical or electronic means that allow OSHA to confirm delivery," as explained in 1992.105(b).

• Examples of confirmable delivery include tracked mail with delivery confirmation, certified mail, or electronic methods that generate delivery receipts.
• OSHA will send to parties of record or counsel if a party is represented.

The findings and any preliminary order will inform the parties of the right to object and request a hearing and provide filing information for the Chief Administrative Law Judge or electronic filing. The regulation states the findings and order "will inform the parties of the right to object to the findings and/or order and to request a hearing," and will give the address or electronic filing details in 1992.105(b).

• Parties should follow the specified procedures and timelines in 1992.106 when filing objections or requesting hearings.
• The notice will include information on where and how to file objections (mail or electronic filing with the Office of Administrative Law Judges).

Yes, the respondent can 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. The findings or preliminary order will inform the respondent of this right, as provided in 1992.105(b).

• The fee award request can be made regardless of whether the respondent filed formal objections.
• The ALJ has discretion up to the $1,000 cap based on the respondent’s showing.

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 1992.106. This timing rule is specified in 1992.105(c).

• If the order sets a later compliance date, that later date controls the effective date.
• Timely filing of objections or a hearing request under 1992.106 suspends the effective date as provided.

Yes, any portion of a preliminary order requiring reinstatement becomes effective immediately upon the respondent's receipt of the findings and preliminary order, even if the respondent files objections. The regulation makes reinstatement effective immediately upon receipt, as stated in 1992.105(c).

• This immediate effect applies regardless of pending objections or requests for hearing.
• Employers should comply right away with reinstatement provisions to avoid further enforcement or legal consequences.

OSHA may require the respondent to submit documentation to the Social Security Administration that allocates any back pay award to the appropriate periods. The regulation notes that the preliminary order "will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods," as described in 1992.105.

• Proper allocation can affect Social Security earnings records and tax reporting for the complainant.
• Employers should collect accurate payroll data and dates to prepare this documentation.

The Assistant Secretary must file a copy of the original complaint and a copy of the findings and/or order with the Chief Administrative Law Judge at the same time the findings are issued. The regulation requires filing with the Chief Administrative Law Judge, as stated in 1992.105(c).

• This filing initiates the administrative record for any subsequent hearing proceedings.
• Parties can expect the case to be docketed with the Office of Administrative Law Judges when this file is submitted.

The findings may specify the means, including electronic methods, for serving OSHA and the Associate Solicitor for Fair Labor Standards with documents required in the administrative litigation. The regulation allows the findings to set acceptable service methods, as noted in 1992.105(c).

• Specifying service methods helps ensure parties follow consistent procedures for filings and responses.
• Parties should follow the specified methods for timely service to avoid procedural issues.

If the Assistant Secretary concludes that no violation occurred, OSHA will notify the parties of that finding. The regulation states this outcome in 1992.105(a)(2).

• The notice will be delivered using confirmable means as required in 1992.105(b).
• The parties will receive information about any further rights, if applicable, consistent with agency procedures.

OSHA issues findings after considering all relevant information collected during the investigation and determines whether there is reasonable cause to believe retaliation occurred. The regulation requires the Assistant Secretary to consider the investigative record and issue findings about reasonable cause, as described in 1992.105(a).

• "Reasonable cause" is the statutory standard used to decide whether to issue a preliminary order.
• The investigative file typically includes witness statements, documents, personnel records, and other evidence the Assistant Secretary deems relevant.

Yes, OSHA can send findings and orders electronically if the method allows OSHA to confirm delivery. The regulation permits electronic delivery provided it allows OSHA to confirm delivery to all parties or counsel, as stated in 1992.105(b).

• Acceptable electronic methods are those that generate a reliable delivery receipt or confirmation.
• Parties should ensure their email or electronic filing addresses are current to receive confirmed electronic delivery.

A preliminary order will either become effective 30 days after receipt or on the compliance date set forth in the order, whichever is later. The regulation explains that the effective date is the later of 30 days after receipt or the compliance date specified in the order, in 1992.105(c).

• If the preliminary order sets a specific compliance date, respondents must comply by that date unless a timely objection or hearing request is filed.
• Reinstatement provisions remain immediately effective upon receipt regardless of the compliance date.

The regulation allows compensatory damages to include reasonable attorney fees for the complainant as part of the preliminary order's remedies. The preliminary order may include compensatory damages "including ... reasonable attorney fees," as specified in 1992.105(a)(1).

• The award of attorney fees for a complainant is part of making the victim whole and deterring retaliation.
• The reasonableness of fees is typically evaluated based on applicable legal standards and the administrative judge's review.

A party must file objections and/or a request for hearing in the manner and timeframe specified (see 1992.106) and may use the address of the Chief Administrative Law Judge or the electronic filing information provided in the findings. The findings will give the address or electronic filing details for the Chief Administrative Law Judge, as required in 1992.105(b).

• Follow the procedural rules in 1992.106 for timing and content of objections and hearing requests.
• Timely filing is critical to preserve rights to a hearing and to prevent the order from becoming effective.

No, issuance of a preliminary order means OSHA's Assistant Secretary found reasonable cause and ordered relief, but the respondent may object and request a hearing where the findings and order can be contested. The regulation provides for objections and hearings after a preliminary order and requires filing with the Chief Administrative Law Judge, as described in 1992.105(b) and 1992.105(c).

• A preliminary order is an initial agency determination and can be reviewed at a hearing before an ALJ.
• The availability of reinstatement relief immediately does not eliminate the respondent’s right to contest the findings.

Practically, "two times the amount of back pay" means the employer may be ordered to pay the complainant double the wages and benefits they lost because of the retaliation, plus interest, as part of the preliminary order. The remedy is specified in 1992.105(a)(1).

• Employers should be prepared to calculate lost wages, benefits, and other compensation for the affected periods and then double that amount.
• Interest calculated per 26 U.S.C. 6621 (compounded daily) will be added to back pay awards as specified in the regulation.