[Federal Register Volume 59, Number 51 (Wednesday, March 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6018]


[[Page Unknown]]

[Federal Register: March 16, 1994]


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Part VI





Department of Labor





_______________________________________________________________________



Office of the Secretary



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29 CFR Part 24




Procedures for the Handling of Discrimination Complaints Under Federal 
Employee Protection Statutes; Proposed Rule
DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 24

RIN 1215-AA83

 
Procedures for the Handling of Discrimination Complaints Under 
Federal Employee Protection Statutes

AGENCY: Wage and Hour Division, Employment Standards Administration, 
Labor.

ACTION: Notice of proposed rulemaking, request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (Department or DOL) proposes to amend 
the regulations governing the employee ``whistleblower'' protection 
provisions of Section 211 (formerly Section 210) of the Energy 
Reorganization Act of 1974, as amended, to implement the statutory 
changes enacted into law on October 24, 1992, as part of the Energy 
Policy Act of 1992. The Department proposes to establish separate 
procedures and time frames for the handling of ERA complaints under 29 
CFR part 24 to implement the statutory amendments. In addition, a 
revised procedure for review by the Secretary of Labor of recommended 
decisions of administrative law judges is proposed.

DATES: Comments are due on or before May 16, 1994.

ADDRESSES: Submit written comments to Maria Echaveste, Administrator, 
Wage and Hour Division, Employment Standards Administration, U.S. 
Department of Labor, room S-3502, 200 Constitution Avenue, NW., 
Washington, DC 20210. Commenters who wish to receive notification of 
receipt of comments are requested to include a self-addressed, stamped 
post card. As a convenience to commenters, comments may be transmitted 
by facsimile (``FAX'') machine to (202) 219-5122. This is not a toll-
free number.

FOR FURTHER INFORMATION CONTACT:
J. Dean Speer, Director, Division of Policy and Analysis, Wage and Hour 
Division, Employment Standards Administration, U.S. Department of 
Labor, room S-3506, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone (202) 219-8412 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

    This regulation contains no reporting or recordkeeping requirements 
subject to the Paperwork Reduction Act.

II. Background

    The Department of Labor, through the Employment Standards 
Administration's Wage and Hour Division (WHD), is responsible under 29 
CFR part 24 for investigating complaints under several Federal laws 
enacted to protect the environment containing employee whistleblower 
provisions that prohibit discriminatory action by employers when 
employees report unsafe or unlawful practices of their employers that 
adversely affect the environment. These whistleblower protections 
prohibit an employer from discharging or otherwise discriminating 
against an employee with respect to compensation, terms, conditions or 
privileges of employment because the employee engages in any of the 
activities specified in the particular statute as a protected activity. 
WHD administers seven employee whistleblower protection statutes under 
29 CFR part 24, as follows: (1) Safe Drinking Water Act, 42 U.S.C. 
300j-9(i); (2) Water Pollution Control Act, 33 U.S.C. 1367; (3) Toxic 
Substances Control Act, 15 U.S.C. 2622; (4) Solid Waste Disposal Act, 
42 U.S.C. 6971; (5) Clean Air Act, 42 U.S.C. 7622; (6) Energy 
Reorganization Act of 1974, 42 U.S.C. 5851; and (7) Comprehensive 
Environmental Response, Compensation and Liability Act of 1980, 42 
U.S.C. 9610.
    The Energy Policy Act of 1992, Public Law 102-486, was enacted on 
October 24, 1992. Among other provisions, this new law significantly 
amended the employee protection provisions for nuclear whistleblowers 
under former Sec. 210 (now Sec. 211) of the ERA; the amendments affect 
only ERA whistleblower complaints and do not extend to the procedures 
established in 29 CFR part 24 for handling employee whistlblower 
complaints under the Federal statutory employee protection provisions 
other than the ERA. The legislative amendments to ERA apply to 
whistleblower claims filed under Sec. 211(b)(1) of the ERA as amended 
(42 U.S.C. 5851(b)(1)) on or after October 24, 1992, the date of 
enactment of Sec. 2902 of the Energy Policy Act of 1992 (Sec. 2902, 
Pub. L. 102-486; 106 Stat. 2776).
    Before the Energy Policy Act of 1992 was enacted, DOL did not have 
jurisdiction under former Sec. 210 of the ERA over reprisal complaints 
by employees of Department of Energy (DOE) contractors or their 
subcontractors. See Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert. 
denied, 112 S. Ct. 122. The DOE, however, established administrative 
procedures for handling complaints of reprisal by such employees not 
covered by DOL's procedures (see 10 CFR part 708). As a result of the 
statutory amendments to the ERA made by the Energy Policy Act of 1992, 
contractors and subcontractors of DOE, except those involved in naval 
nuclear propulsion work, are now expressly included within the 
statutory definition of a covered ``employer'' and are, therefore, 
subject to DOL jurisdiction for complaints filed by their employees of 
employer-reprisal for engaging in protected activities under the ERA.

III. Summary of Statutory Changes to ERA Whistleblower Provisions

    Section 2902 of Public Law 102-486 (106 Stat. 2776) amended former 
Section 210 of the ERA, 42 U.S.C. 5851, by renumbering it as Section 
211 of ERA and making the additional changes described below.
    Prohibited Acts. Former Section 210 of the ERA protected an 
employee against discrimination from an employer because the employee: 
(1) Commenced, caused to be commenced, or was about to commence or 
cause to be commenced a proceeding under the ERA or the Atomic Energy 
Act of 1954 (AEA); (2) testified or was about to testify in any such 
proceeding; or (3) assisted or participated or was about to assist or 
participate in any manner in such a proceeding ``* * * or in any other 
action to carry out the purposes of (the ERA or the AEA).'' The 
Department's interpretation, under ERA as well as the other 
environmental whistleblower laws which DOL administers, is that 
employees who file complaints internally with an employer are protected 
from employer reprisals. An employee is protected under 29 CFR 
24.2(b)(3) if an employee assists or participates in ``* * * any other 
action to carry out the purposes of such Federal (environmental 
protection) statute,'' which would encompass such internal complaints. 
This conclusion, that whistleblower protections extend to internal 
safety and quality control complaints, has been sustained by a number 
of courts of appeals. See, e.g., Mackowiak v. University Nuclear 
Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Kansas Gas & Elec. 
Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 
1011 (1986); Passaic Valley Sewerage Commissioner v. Department of 
Labor, 992 F.2d 474 (3rd Cir. 1993), cert. denied, 62 U.S. L.W. 3334 
(1993). Contra, Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 
1984). Under the Energy Policy Act of 1992, ERA's statutory definition 
of protected whistleblower activity was expanded to expressly include 
employees who file internal complaints with employers, employees who 
oppose any unlawful practice under the ERA or the AEA, and employees 
who testify before Congress or in any other Federal or State proceeding 
regarding the ERA or AEA--thereby overriding the decision of the Fifth 
Circuit in Brown & Root.
    Revised Definition of ``Employer''. Former Sec. 210 of the ERA 
included within the definition of a covered ``employer'' licensees of 
the Nuclear Regulatory Commission (NRC), applicants for such licenses, 
and their contractors and subcontractors. The statutory amendments 
revised the definition of ``employer'' to extend coverage to employees 
of contractors or subcontractors of the Department of Energy, except 
those involved in naval nuclear propulsion work under E.O. 12344, 
licensees of an agreement State under Sec. 274 of the Atomic Energy Act 
of 1954, applicants for such licenses, and their contractors and 
subcontractors.
    Time Period for Filing Complaints. The time period for filing ERA 
whistleblower complaints has been expanded from 30 days to 180 days 
from the date the violation occurs. Investigations of complaints, 
however, will still be conducted under the statute within 30 days of 
receipt of the complaint. The ERA amendments apply to all complaints 
filed on or after the date of enactment. Thus, complaints previously 
filed that were deemed untimely and were therefore dismissed before the 
1992 statutory amendments were enacted may be considered timely under 
the amended law if the complaint was refiled after October 24, 1992, 
and within the new 180-day time frame.
    Interim Relief. The Secretary is required under the amended ERA to 
order interim relief upon the conclusion of an administrative hearing 
and the issuance of a recommended decision that the complaint has 
merit. Such interim relief may include all relief that would be 
included in a final order of the Secretary except compensatory damages.
    Burdens of Proof; Avoidance of Frivolous Complaints. The 1992 
Amendments revise the burdens of proof in ERA cases by establishing 
statutory burdens of proof and a standard for the dismissal of 
complaints which do not present a prima facie case. Before the 1992 
Amendments, the ERA itself contained no statutory rules on burdens of 
proof--the burdens of proof were based on precedential cases derived 
from other discrimination law (see, e.g., Mt. Healthy City School 
District Board of Education v. Doyle, 429 U.S. 274 (1977); Texas 
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); 
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 
1984); and Dartey v. Zack Company of Chicago, Case No. 82-ERA (Decision 
of the Secretary, April 25, 1983).
    Under the former lines of analysis for the ERA and continuing for 
whistleblower complaints under the other six environmental statutes, 
once a complainant employee presents evidence sufficient to raise an 
inference that protected conduct likely was a ``motivating'' factor in 
an adverse action taken by an employer against the employee, it is 
necessary for the employer to present evidence that the alleged adverse 
treatment was motivated by legitimate, nondiscriminatory reasons. If 
the employer presents such evidence, the employee still may succeed by 
showing that the proffered reason was not the true reason for the 
employment decision; the employee may succeed in this regard by showing 
that a discriminatory reason more likely motivated the employer, or by 
showing that the employer's proffered explanation is not believable 
(``pretext'' cases). In certain cases, the trier of fact may conclude 
that the employer was motivated by both prohibited and legitimate 
reasons (``dual motive'' cases). In such dual motive cases, the 
employer may prevail by showing by a preponderance of the evidence that 
it would have reached the same decision even in the absence of the 
protected conduct. In pretext cases, rejection of the employer's 
proffered reasons, together with the elements of the prima facie case, 
may be sufficient to show discrimination. See Dartey v. Zack, supra, 
pp. 6-9.
    The 1992 amendments added new statutory burdens of proof to the 
ERA. The changes have been described on the one hand as a lowering of 
the burden on complainants in order to facilitate relief for employees 
who have been retaliated against for exercising their statutory rights, 
and, on the other hand, as a limitation on the investigative authority 
of the Secretary of Labor when the burden is not met.
    Under the ERA as amended, a complainant must make a ``prima facie'' 
showing that protected conduct or activity was ``a contributing 
factor'' in the unfavorable personnel action alleged in the complaint, 
i.e., that the whistleblowing activity, alone or in combination with 
other factors, affected in some way the outcome of the employer's 
personnel decision (Section 211(b)(3)(A)). If the complainant does not 
make the prima facie showing, the complaint must be dismissed and the 
investigation discontinued.
    Even in cases where the complaint meets the initial burdens of a 
prima facie showing, the investigation must be discontinued if the 
employer ``demonstrates, by clear and convincing evidence, that it 
would have taken the same unfavorable personnel action'' in the absence 
of the protected conduct (Section 211(b)(3)(B)). The complainant is 
free, as under prior law, to pursue the case before the administrative 
law judge (ALJ) if the Secretary dismisses the complaint.
    The ``clear and convincing evidence'' standard is a higher degree 
of proof burden on employers than the former ``preponderance of the 
evidence'' standard. In the words of Representative George Miller, 
Chairman of the House Committee on Interior and Insular Affairs, 
``[t]he conferees intend to replace the burden of proof enunciated in 
Mt. Healthy v. Doyle, 429 U.S. 274 (1977), with this lower burden in 
order to facilitate relief for employees who have been retaliated 
against for exercising their rights under section 210. * * *'' 138 
Cong. Rec. H 11409 (October 5, 1992).
    Thus, under the amendments to ERA, the Secretary must dismiss the 
complaint and not investigate (or cease investigating) if either: (1) 
The complainant fails to meet the prima facie showing that protected 
activity was a contributing factor in the unfavorable personnel action; 
or (2) the employer rebuts that showing by clear and convincing 
evidence that it would have taken the same unfavorable personnel action 
absent the protected conduct.
    These new burdens of proof limitations also apply to the 
determination as to whether an employer has violated the Act and relief 
should be ordered. Thus, a determination that a violation has occurred 
may only be made if the complainant has demonstrated that protected 
behavior or conduct was a contributing factor in the unfavorable 
personnel action alleged in the complaint (Section 211(b)(3)(C)). Even 
if the complainant makes this showing, relief may not be ordered if the 
employer satisfies the statutory requirement to demonstrate by ``clear 
and convincing evidence'' that it would have taken the same personnel 
action in the absence of the protected activity (Section 211(b)(3)(D)).
    Other Changes. The ERA whistleblower provisions must be prominently 
posted in any place of employment to which the Act applies. The 
amendments also include an express provision that the ERA whistleblower 
provisions may not be construed to expand, diminish, or otherwise 
affect any right otherwise available to an employee under Federal or 
State law to redress the employee's discharge or other discriminatory 
action taken by the employer against the employee--codifying and 
broadening the Supreme Court decision in English v. General Electric 
Co., 496 U.S. 72 (1990). Finally, the amendments direct the Nuclear 
Regulatory Commission (NRC) and DOE not to delay addressing any 
``substantial safety hazard'' during the pendency of a whistleblower 
proceeding, and provide that a determination by the Secretary of Labor 
that a whistleblower violation has not occurred ``shall not be 
considered'' by the NRC and DOE in determining whether a substantial 
safety hazard exists.

IV. Summary of Proposed Rule

    Section 24.1(a), which lists the Federal statutes providing 
employee protections for whistleblowing activities for which the 
Department of Labor is responsible for enforcement under this part, is 
updated to add the Comprehensive Environmental Response, Compensation 
and Liability Act of 1980, 42 U.S.C. 9610.
    Section 24.2, describing obligations and prohibited acts, is 
revised to reflect the statutory amendments to the protected activities 
covered under the ERA, and to state that the Secretary interprets all 
of the whistleblower statutes to apply to such internal whistleblowing 
activities. The requirements for posting of notices of the employee 
protection provisions of the ERA are also added, together with a 
provision that failure to post the required notice shall make the 
requirement that a complaint be filed with the Administrator within 180 
days inoperative, unless the respondent is able to establish that the 
employee had actual notice of the provisions. This explicit recognition 
that the statute of limitations may be equitably tolled is based on 
case law under analogous statutes. See, for example, Kephart v. 
Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir. 1978), cert. 
denied, 450 U.S. 959 (1981), and Bonham v. Dresser Industries, Inc., 
569 F.2d 187 (3rd Cir. 1977), cert. denied, 439 U.S. 821 (1978), 
arising under the Age Discrimination in Employment Act, and Kamens v. 
Summit Stainless, Inc., 586 F. Supp. 324 (E.D. Pa. 1984), arising under 
the Fair Labor Standards Act.
    Section 24.3, concerning complaints, is revised to reflect the 180-
day filing period for complaints under the ERA.
    Section 24.4, concerning investigations, is revised to provide for 
filing of hearing requests by facsimile (fax), telegram, hand-delivery, 
or next-day delivery service (e.g., overnight couriers), to conform the 
regulations to current business practices. In addition, the regulation 
has been revised to provide that the request for a hearing must be 
received within five business days, rather than five calendar days, 
from receipt of the Administrator's determination. The regulation has 
also been revised to make it clear that the complainant may appeal from 
a finding that a violation has occurred where the determination or 
order is partially adverse (e.g., where a complaint was only partially 
substantiated or the order did not grant all of the requested relief).
    A new Sec. 24.5, concerning investigations under the Energy 
Reorganization Act, details operation of the new provisions under the 
ERA for dismissal of complaints where the employee has not alleged a 
prima facie case, or the employer has submitted clear and convincing 
evidence that it would have taken the same personnel action in the 
absence of the protected activity.
    Section 24.6 (formerly Sec. 24.5) makes it clear that the Wage-Hour 
Administrator may participate in proceedings as a party or as amicus 
curiae. In addition, at the request of the Nuclear Regulatory 
Commission, a provision has been added to expressly permit Federal 
agencies to participate as amicus curiae, and to receive copies of 
pleadings on request.
    Section 24.7 (formerly Sec. 24.6), concerning recommended decisions 
and orders, is revised to add the statutory requirement that interim 
relief be ordered in ERA cases once an administrative law judge issues 
a recommended decision that the complaint is meritorious. Section 24.7 
is also amended with respect to all whistleblower cases to provide that 
the recommended decision of the administrative law judge becomes the 
final order of the Secretary if no petition for review is filed.
    A new Sec. 24.8 details the procedure for seeking review by the 
Secretary of a decision of an Administrative Law Judge.
    Former Sec. 24.7, concerning judicial review, and former Sec. 24.8, 
concerning enforcement of decisions of the Secretary, have been 
removed. These provisions vary from statute to statute among the 
whistleblower programs. Furthermore, the types of judicial review or 
enforcement actions which are available does not need to be the subject 
of rulemaking since it is prescribed by statute and concerns judicial 
remedies.

Executive Order 12866

    The Department believes that this proposed rule is not a 
``significant regulatory action'' within the meaning of Executive Order 
12866, in that it is not likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in Executive Order 12866. 
Therefore, no regulatory impact analysis has been prepared.

Regulatory Flexibility Analysis

    The Department has determined that the proposed regulation will not 
have a significant economic impact on a substantial number of small 
entities. The proposal implements regulatory revisions necessitated by 
statutory amendments enacted by the Congress which are largely 
procedural in nature, or which narrowly extend the scope of the law to 
include employees of contractors or subcontractors of the Department of 
Energy (except those involved in naval nuclear propulsion work under 
E.O. 12344), licensees of an agreement State under the Atomic Energy 
Act, applicants for such licenses, and their contractors and 
subcontractors. The Department of Labor has certified to this effect to 
the Chief Counsel for Advocacy of the Small Business Administration. 
Therefore, no regulatory flexibility analysis is required.
    This document was prepared under the direction and control of Maria 
Echaveste, Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 24

    Employment, Environmental protection.

    Accordingly, for the reasons set out in the preamble, 29 CFR part 
24 is proposed to be amended as set forth below.

    Signed at Washington, DC, on March 10, 1994.
Maria Echaveste,
Administrator, Wage and Hour Division.

PART 24--PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS 
UNDER FEDERAL EMPLOYEE PROTECTION STATUTES

    1. and 2. The authority citation for part 24 is proposed to be 
revised to read as follows:

    Authority: 42 U.S.C. 300j-9(i); 33 U.S.C. 1367; 15 U.S.C. 2622; 
42 U.S.C. 6971; 42 U.S.C. 7622; 42 U.S.C. 5851; 42 U.S.C. 9610.


    3. Section 24.1 is proposed to be amended by revising paragraph (a) 
to read as follows:


Sec. 24.1  Purpose and scope.

    (a) This part implements the several employee protection provisions 
for which the Secretary of Labor has been given responsibility pursuant 
to the following Federal statutes: Safe Drinking Water Act, 42 U.S.C. 
300j-9(i); Water Pollution Control Act, 33 U.S.C. 1367; Toxic 
Substances Control Act, 15 U.S.C. 2622; Solid Waste Disposal Act, 42 
U.S.C. 6971; Clean Air Act, 42 U.S.C. 7622; Energy Reorganization Act 
of 1974, 42 U.S.C. 5851; and Comprehensive Environmental Response, 
Compensation and Liability Act of 1980, 42 U.S.C. 9610.
* * * * *
    4. Section 24.2 is proposed to be amended by revising paragraph (a) 
and paragraph (b) introductory text, and by adding paragraphs (c) and 
(d) to read as follows:


Sec. 24.2  Obligations and prohibited acts.

    (a) No employer subject to the provisions of the Federal statute of 
which these protective provisions are a part, or to the Atomic Energy 
Act of 1954, 42 U.S.C. 2011 et. seq., may discharge any employee or 
otherwise discriminate against any employee with respect to the 
employee's compensation, terms, conditions, or privileges of employment 
because the employee, or any person acting pursuant to the employee's 
request, engaged in any of the activities specified in this section.
    (b) Any employer is deemed to have violated the particular Federal 
law, including the Atomic Energy Act of 1954, and the regulations in 
this part if such employer intimidates, threatens, restrains, coerces, 
blacklists, discharges, or in any other manner discriminates against 
any employee who has:
* * * * *
    (c) Under the Energy Reorganization Act, and by interpretation of 
the Secretary under any of the other statutes listed in Sec. 24.1 of 
this part, any employer is deemed to have violated the particular 
Federal law, including the Atomic Energy Act of 1954, and the 
regulations in this part if such employer intimidates, threatens, 
restrains, coerces, blacklists, discharges, or in any other manner 
discriminates against any employee who has:
    (1) Notified the employer of an alleged violation of such Federal 
statute;
    (2) Refused to engage in any practice made unlawful by such Federal 
statute, if the employee has identified the alleged illegality to the 
employer; or
    (3) Testified before Congress or at any Federal or State proceeding 
regarding any provision (or proposed provision) of such Federal 
statute.
    (d) (1) Every employer subject to the Energy Reorganization Act of 
1974, as amended, shall prominently post and keep posted in any place 
of employment to which the employee protection provisions of the Act 
applies a notice prepared or approved by the Department of Labor that 
explains the employee protection provisions of the Act and the 
regulations in this part. Copies of such notice may be obtained from 
the Administrator of the Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, Washington, DC 20210.
    (2) Where the notice required by paragraph (d)(1) of this section 
has not been posted, the requirement in Sec. 24.3(b)(2) that a 
complaint be filed with the Administrator within 180 days of an alleged 
violation shall be inoperative unless the respondent establishes that 
the complainant had notice of that requirement. If it is established 
that the notice was posted after the alleged discriminatory action 
occurred or that the complainant later obtained actual notice, the 180 
days shall run from that date.
    5. Section 24.3 is proposed to be amended by revising paragraphs 
(b) and (d) to read as follows:


Sec. 24.3  Complaint.

* * * * *
    (b) Time of filing. (1) Except as provided in paragraph (b)(2) of 
this section, any complaint shall be filed within 30 days after the 
occurrence of the alleged violation. For the purpose of determining 
timeliness of filing, a complaint filed by mail shall be deemed filed 
as of the date of mailing.
    (2) Under the Energy Reorganization Act of 1974, any complaint 
shall be filed within 180 days after the occurrence of the alleged 
violation.
* * * * *
    (d) Place of filing. A complaint may be filed in person or by mail 
at the nearest local office of the Wage and Hour Division, listed in 
most telephone directories under U.S. Government, Department of Labor, 
Employment Standards Administration, Wage-Hour Division. A complaint 
may also be filed with the Office of the Administrator, Wage and Hour 
Division, Employment Standards Administration, U.S. Department of 
Labor, Washington, DC 20210.
    6. Section 24.4 is proposed to be amended by revising paragraph 
(d)(2) and (d)(3) and by adding a new paragraph (d)(4) to read as 
follows:


Sec. 24.4  Investigations.

* * * * *
    (d) (1) ***
    (2) If on the basis of the investigation the Administrator 
determines that the complaint is without merit, the notice of 
determination shall include or be accompanied by notice to the 
complainant that the notice of determination shall become the final 
order of the Secretary denying the complaint unless within five 
business days of its receipt the Chief Administrative Law Judge 
receives from the complainant a request for a hearing filed by 
facsimile (fax), telegram, hand delivery, or next-day delivery service. 
A copy of any request for a hearing shall be sent by the complainant to 
the respondent (employer) on the same day that the hearing is 
requested, by facsimile (fax), telegram, hand delivery, or next-day 
delivery service.
    (3) If on the basis of the investigation the Administrator 
determines that a violation has occurred, the notice of the 
determination shall include an appropriate order to abate the 
violation, and notice to the respondent and complainant that the order 
shall become the final order of the Secretary unless within five 
business days of its receipt the Chief Administrative Law Judge 
receives from the respondent or from complainant (where the 
determination or order is partially adverse) a request for a hearing 
filed by facsimile (fax), telegram, hand delivery, or next-day delivery 
service. A copy of any request for a hearing shall be sent to the 
complainant or respondent, as appropriate, on the same day that the 
hearing is requested, by facsimile (fax), telegram, hand delivery, or 
next-day delivery service.
    (4) Copies of any requests for a hearing shall be sent to the 
Administrator, Wage and Hour Division, and to the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor, Washington, 
DC 20210, on the same day that the hearing is requested by facsimile 
(fax), telegram, hand delivery, or next-day delivery service.
    7. Section 24.7 is proposed to be removed, Sec. 24.6 is proposed to 
be redesignated as Sec. 24.7; and Sec. 24.5 is proposed to be 
redesignated as Sec. 24.6 and amended by adding new paragraphs (f) and 
(g) as follows:


Sec. 24.6  Hearings.

* * * * *
    (f) (1) At the Administrator's discretion, the Administrator may 
participate as a party or participate as amicus curiae at any time in 
the proceedings. This right to participate shall include, but is not 
limited to, the right to petition for review of a recommended decision 
of an administrative law judge, including a decision, based on a 
settlement agreement between complainant and respondent, to dismiss a 
complaint or to issue an order encompassing the terms of the 
settlement.
    (2) Copies of pleadings in all cases, whether or not the 
Administrator is participating in the proceeding, shall be sent to the 
Administrator, Wage and Hour Division, and to the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor, Washington, 
DC 20210.
    (g) (1) A Federal agency which is interested in a proceeding may 
participate as amicus curiae at any time in the proceedings, at the 
agency's discretion.
    (2) At the request of a Federal agency which is interested in a 
proceeding, copies of all pleadings in a case shall be served on the 
Federal agency, whether or not the agency is participating in the 
proceeding.
    8. A new Sec. 24.5 is proposed to be added to read as follows:


Sec. 24.5  Investigations under the Energy Reorganization Act.

    (a) In addition to the procedures set forth in Sec. 24.4 of this 
part, this section sets forth special procedures applicable only to 
investigations under the Energy Reorganization Act.
    (b) (1) A complaint of alleged violation shall be dismissed unless 
the complainant has made a prima facie showing that protected behavior 
or conduct as provided in paragraph (b) of Sec. 24.2 was a contributing 
factor in the unfavorable personnel action alleged in the complaint.
    (2) The complaint, supplemented as appropriated by interviews of 
the complainant, must allege the existence of facts and evidence to 
meet the required elements of a prima facie case, as follows:
    (i) The employee engaged in a protected activity or conduct, as set 
forth in Sec. 24.2;
    (ii) The respondent knew that the employee engaged in the protected 
activity; and
    (iii) The employee has suffered an unfavorable personnel action 
under circumstances sufficient to raise the inference that the 
protected activity was likely a contributing factor in the unfavorable 
action.
    (3) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews 
of the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required elements of a prima facie 
case, i.e., to give rise to an inference that the respondent knew that 
the employee engaged in protected activity, and that the protected 
activity was likely a reason for the personnel action. Normally the 
burden is satisfied, for example, if it is shown that the adverse 
personnel action took place shortly after the protected activity, 
giving rise to the inference that it was a factor in the adverse 
action. If these elements are not substantiated in the investigation, 
the investigation will cease.
    (c) (1) Notwithstanding a finding that a complainant has made a 
prima facie showing required by this section with respect to complaints 
filed under the Energy Reorganization Act, an investigation of the 
complainant's complaint under that Act shall be discontinued if the 
respondent demonstrates by clear and convincing evidence that it would 
have taken the same unfavorable personnel action in the absence of the 
complainant's protected behavior or conduct.
    (2) Upon receipt of a complaint under the Energy Reorganization 
Act, the respondent shall be advised that any evidence it may wish to 
submit to rebut the allegations in the complaint must be received 
within five (5) business days from receipt of notification of the 
complainant. If the respondent fails to make a timely response or if 
the response does not demonstrate by clear and convincing evidence that 
the unfavorable action would have occurred absent the protected 
conduct, the investigation shall proceed. The investigation shall 
proceed whenever it is necessary or appropriate to confirm or verify 
the information provided by respondent.
    (d) (1) Whenever the Administrator dismisses a complaint pursuant 
to this section without completion of an investigation, the 
Administrator shall give notice of the dismissal, which shall contain a 
statement of reasons therefor, by certified mail to the complainant, 
the respondent, and their representatives. At the same time the 
Administrator shall file with the Chief Administrative Law Judge, U.S. 
Department of Labor, a copy of the complaint and a copy of the notice 
of dismissal. The notice of dismissal shall include notice that the 
dismissal shall become the final order of the Secretary denying the 
complaint unless within five business days of its receipt the 
complainant files with the Chief Administrative Law Judge by facsimile 
(fax), telegram, hand delivery, or next-day delivery service, a request 
for a hearing on the complaint.
    (2) Copies of any request for a hearing shall be sent by the 
complainant to the respondent and to the Administrator, Wage and Hour 
Division, and the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor, Washington, DC 20210, on the same 
day that the hearing is requested, the facsimile (fax), telegram, hand 
delivery, or next-day delivery service.
    9. Newly designated Sec. 24.7 is proposed to be revised to read as 
follows:


Sec. 24.7  Recommended decision and order.

    (a) The administrative law judge shall issue a recommended decision 
within 20 days after the termination of the proceeding at which 
evidence was submitted. The recommended decision shall contain 
appropriate findings, conclusions, and a recommended order and be 
served upon all parties to the proceeding.
    (b) In cases under the Energy Reorganization Act, a determination 
that a violation has occurred may only be made if the complainant has 
demonstrated that protected behavior or conduct was a contributing 
factor in the unfavorable personnel action alleged in the complaint. 
Relief may not be ordered if the respondent demonstrates by clear and 
convincing evidence that it would have taken the same unfavorable 
personnel action in the absence of such behavior. The proceeding before 
the administrative law judge shall be a proceeding on the merits of the 
complaint. Neither the Administrator's determination to dismiss a 
complaint pursuant to Sec. 24.5 of this part without completing an 
investigation nor the Administrator's determination not to dismiss a 
complaint is subject to review by the administrative law judge, and a 
complaint may not be remanded for the completion of an investigation on 
the basis that such a determination to dismiss was made in error.
    (c) (1) Upon the conclusion of the hearing and the issuance of a 
recommended decision that the complaint has merit, the administrative 
law judge shall issue a recommended order that the respondent take 
appropriate affirmative action to abate the violation, including 
reinstatement of the complainant to the respondent's former or 
substantially equivalent position, if desired, together with the 
compensation (including back pay), terms, conditions, and privileges of 
that employment, and, when the administrative law judge deems if 
appropriate, compensatory damages. In cases arising under the Safe 
Drinking Water Act or the Toxic Substances Control Act, exemplary 
damages may also be awarded when appropriate.
    (2) In cases brought under the Energy Reorganization Act, when an 
administrative law judge issues a recommended order that the complaint 
has merit, the judge shall also issue a preliminary order providing the 
relief specified in Sec. 24.7(c)(1) of this part with the exception of 
compensatory damages. This preliminary order shall constitute the 
preliminary order of the Secretary and shall be effective immediately, 
whether or not a petition for review is filed with the Secretary. Any 
award of compensatory damages shall not be effective until the 
completion of any review by the Secretary.
    (d) The recommended decision of the administrative law judge shall 
become the final order of the Secretary unless, pursuant to Sec. 24.8 
of this part, a petition for review is timely filed with Secretary.
    10. and 11. Section 24.8 is proposed to be revised to read as 
follows:


Sec. 24.8  Review by the Secretary.

    (a) Any party desiring review of a recommended decision of the 
administrative law judge shall file a petition for review with the 
Secretary. To be effective, such a petition for review must be received 
within ten business days of the date of the decision of the 
administrative law judge, and shall be served on all parties and on the 
Chief Administrative Law Judge.
    (b) Copies of the petition and all briefs shall be served on the 
Administrator, Wage and Hour Division, and on the Associate Solicitor, 
Division of Fair Labor Standards, U.S. Department of Labor, Washington, 
DC 20210.
    (c) The Secretary's final decision shall be issued within 90 days 
of the receipt of the complaint and shall be served upon all parties 
and the Chief Administrative Law Judge by mail to the last known 
address.
    (d) (1) If the Secretary concludes that the party charged has 
violated the law, the final order shall order the party charged to take 
appropriate affirmative action to abate the violation, including 
reinstatement of the complainant to that person's former or 
substantially equivalent position, if desired, together with the 
compensation (including back pay), terms, conditions, and privileges of 
that employment, and, when appropriate, compensatory damages. In cases 
arising under the Safe Drinking Water Act or the Toxic Substances 
Control Act, exemplary damages may also be awarded when appropriate.
    (2) If such a final order is issued, the Secretary, at the request 
of the complainant, shall assess against the respondent a sum equal to 
the aggregate amount of all costs and expenses (including attorney and 
expert witness fees) reasonably incurred by the complainant, as 
determined by the Secretary, for, or in connection with, the bringing 
of the complaint upon which the order was issued.
    (e) If the Secretary determines that the party charged has not 
violated the law, an order shall be issued denying the complaint.

[FR Doc. 94-6018 Filed 3-15-94; 8:45 am]
BILLING CODE 4510-27-M