The complainant must show by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged. Under 1992.109(a), the ALJ may find a violation only if the complainant meets this preponderance standard. See also 1992.109 for the context of ALJ decisions.
The respondent can avoid relief by proving by clear and convincing evidence that it would have taken the same adverse action even without any protected activity. 1992.109(b) sets this higher rebuttal standard as the defense to an otherwise successful complaint.
No — the ALJ cannot review OSHA's decision to dismiss a complaint without completing an investigation, nor can the ALJ remand a case for additional investigation solely because OSHA dismissed it. 1992.109(c) makes OSHA's dismissal or decision to proceed not subject to ALJ review, and that is tied to the dismissal authority in 1992.104(e).
The ALJ can order reinstatement with the same seniority status, payment of two times the back pay owed (with interest), compensatory damages including litigation costs, expert witness fees, reasonable attorney fees, and any other appropriate remedy for the retaliation. These remedies are listed in 1992.109(d)(1).
Interest on back pay is calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and is compounded daily. This calculation requirement is specified in 1992.109(d)(1).
Yes — the ALJ's order will require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods. That requirement is stated in 1992.109(d)(1).
Yes — if the ALJ determines the complaint was frivolous or brought in bad faith and the respondent requested relief, the ALJ may award a reasonable attorney fee to the respondent not exceeding $1,000. This is described in 1992.109(d)(2).
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; OSHA and the Associate Solicitor may specify the means of service, including electronic means. These service rules are in 1992.109(e).
An ALJ decision requiring reinstatement becomes effective immediately upon receipt of the decision by the respondent. That immediate-effect rule for reinstatement orders is provided in 1992.109.
All portions of the ALJ's order other than immediate reinstatement become effective 30 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB). This timing is stated in 1992.109.
The 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. That finality rule is found in 1992.109.
Yes — if there is jurisdiction, the ALJ may either hear the case on the merits or dispose of the matter without a hearing when the facts and circumstances warrant doing so. This discretion is described in 1992.109.
In practice the complainant first must prove by a preponderance of the evidence that protected activity contributed to the adverse action; if the complainant meets that burden, the respondent can avoid relief only by meeting the higher clear-and-convincing standard showing it would have taken the same action absent protected activity. Those complementary standards are set out in 1992.109(a) and 1992.109(b).
No — a complainant cannot force the ALJ to remand the case for completion of an investigation or to make additional findings simply because OSHA previously dismissed the complaint; the ALJ does not have authority to review OSHA's dismissal decision as explained in 1992.109(c) and relatedly 1992.104(e).