Administrative Review Board decisions

You must file a petition for review with the ARB within 30 days of the date of the Administrative Law Judge's (ALJ) decision. Under 1992.110(a), the petition deadline is 30 days; the regulation also explains how the date of filing is determined (see next point).

• The date of the postmark or electronic transmittal is treated as the filing date.
• If you file in person or by hand delivery, the petition is considered filed upon receipt.

A petitioner must serve the petition on all parties to the case and on the Chief Administrative Law Judge at the time it is filed with the ARB. The rule is stated plainly in 1992.110(a).

• Also see related service requirements in 1992.110(b) about the Assistant Secretary and Associate Solicitor.

Yes — a petition for review must also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, and OSHA or the Associate Solicitor may specify means (including electronic) for service. This requirement appears in 1992.110(b).

• If OSHA or the Associate Solicitor specifies electronic service, follow the specified method to ensure proper service.

The regulation treats the postmark or electronic transmittal date as the date of filing, and treats in-person or hand-delivered petitions as filed upon receipt. 1992.110(a) explains these rules for determining the filing date.

• Postal or electronic submissions: filing date = postmark or electronic transmittal date.
• In-person or hand delivery: filing date = date of receipt by the ARB.

If the petition does not identify the legal conclusions or orders objected to, those objections may be deemed waived. 1992.110(a) requires parties to identify the legal conclusions or orders they contest in their petitions.

• To preserve issues for review, clearly identify each legal conclusion or order you challenge in the petition.

Yes, all petitions and documents submitted to the ARB must be filed in accordance with part 26 of this title. 1992.110(a) requires compliance with part 26 filing procedures.

• Consult the part 26 rules for formatting, number of copies, and any technical filing requirements when preparing your submission.

If a timely petition for review is filed, the ALJ's decision remains the final order of the Secretary unless the ARB issues an order within 30 days accepting the case for review; if accepted, the ALJ's decision becomes inoperative unless and until the ARB adopts it. 1992.110(b).

• Exception: any ALJ order of reinstatement is effective while ARB review is conducted unless the ARB grants a respondent's motion to stay the reinstatement based on exceptional circumstances.

The ARB reviews factual determinations under the substantial evidence standard and reviews legal conclusions de novo. This standard is set out in 1992.110(b).

• "Substantial evidence" means the ARB will uphold factual findings if a reasonable mind could reach the same conclusion based on the record.

If a timely petition for review is not filed, or the ARB denies review, the ALJ's decision becomes the final order of the Secretary. 1992.110(b) explains this outcome.

• Note: a final order that resulted from no timely petition is not subject to judicial review, per 1992.110(b).

Yes, the ALJ's reinstatement order remains effective during ARB review unless the ARB grants a respondent's motion to stay that order based on exceptional circumstances. This rule is stated in 1992.110(b).

• The respondent bears the burden to show exceptional circumstances warranting a stay of reinstatement.

The ARB must issue its decision within 120 days of the conclusion of the hearing, where the hearing is deemed concluded 30 days after the ALJ's decision unless a motion for reconsideration was filed. 1992.110(c).

• If a motion for reconsideration is filed with the ALJ, the conclusion of the hearing is the date the motion is ruled upon or 30 days after a new decision is issued, whichever applies.

The ARB must serve its decision on all parties and the Chief Administrative Law Judge, and it must also serve the decision on the Assistant Secretary and the Associate Solicitor, Division of Fair Labor Standards, even if the Assistant Secretary is not a party. 1992.110(c).

• OSHA and the Associate Solicitor may specify electronic or other means for service under this provision.

If the ARB accepts a case for review, the ARB will specify the terms under which any briefs are to be filed. This procedure is set out in 1992.110(b).

• Follow the ARB's specified briefing schedule and format to avoid procedural defects.

If the ARB concludes the respondent violated the law, it can order reinstatement with the same seniority status the complainant would have had but for the retaliation; two times the amount of back pay owed (with interest); compensatory damages including litigation costs, expert witness fees, and reasonable attorney fees; and any other appropriate remedy for the retaliation. These remedies are described in 1992.110(d).

• Interest on back pay is calculated as described in the regulation (see next question).

Interest on any back pay award will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily, as provided in 1992.110(d).

• The ARB specifies that the tax underpayment rate (26 U.S.C. 6621) is the reference for determining the interest amount and that it is compounded daily.

The ARB's order will require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods. This requirement appears in the section text for 1992.110.

• Providing accurate allocation documentation helps ensure correct Social Security earnings records and benefits calculations for the complainant.

If the ARB determines the respondent has not violated the law, the ARB will issue an order denying the complaint. This outcome is specified in 1992.110(e).

If the respondent requests it and the ARB determines the complaint was frivolous or brought in bad faith, the ARB may award a reasonable attorney fee to the respondent not exceeding $1,000. This authority and dollar limit are set out in 1992.110(e).

• The award is discretionary and requires a finding that the complaint was frivolous or in bad faith.

Yes, ARB orders are subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 or any successor to that order. The regulatory text notes that ARB orders are subject to the Secretary's discretionary review in both the remedies and denial provisions of 1992.110.

• Parties should be aware that the Secretary may elect to review ARB orders under the established Secretary's Order procedures.

If a motion for reconsideration is filed with the ALJ, the 'conclusion of the hearing' is the date the motion for reconsideration is ruled upon or 30 days after a new decision is issued. This definition is provided in 1992.110(c).

• This affects the 120-day timeframe the ARB has to issue its decision after the hearing concludes.

No — if a timely petition for review is not filed, the resulting final order is not subject to judicial review. 1992.110(b) states that final orders resulting from no timely petition are not open to judicial review.

• Timely filing of a petition is therefore critical if a party wishes to preserve the right to seek further review.

A respondent seeking a stay of an ALJ's reinstatement order during ARB review must convince the ARB that exceptional circumstances exist that warrant a stay. 1992.110(b) specifically allows the ARB to grant a motion by the respondent to stay an order of reinstatement based on exceptional circumstances.

• The regulation does not define 'exceptional circumstances,' so provide factual evidence demonstrating why continuing reinstatement would be unfair or impractical.