[Federal Register Volume 63, Number 26 (Monday, February 9, 1998)]
[Rules and Regulations]
[Pages 6614-6625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2922]



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Part II





Department of Labor





_______________________________________________________________________



Office of the Secretary



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29 CFR Part 24



Procedures for Handling Discrimination Complaints Under Federal 
Employee Protection Statutes; Final Rule

  Federal Register / Vol. 63, No. 26 / Monday, February 9, 1998 / Rules 
and Regulations  

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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: Office of the Secretary and the Occupational Safety and Health 
Administration, Labor.

ACTION: Final rule.

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

SUMMARY: This document provides the final text of revised regulations 
governing the employee protection (``whistleblower'') 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. This 
rule establishes separate procedures and time frames for the handling 
of ERA complaints to implement the statutory amendments. In addition, 
the rule establishes a revised procedure for review by the 
Administrative Review Board (on behalf of the Secretary) of decisions 
of administrative law judges under all of the various environmental 
employee protection provisions. The rule also reflects the transfer of 
responsibility for administration of these statutes from the 
Administrator of the Wage and Hour Division to the Assistant Secretary 
for Occupational Safety and Health.

DATES: This final rule is effective March 11, 1998.

FOR FURTHER INFORMATION CONTACT: Thomas Buckley, Director, Office of 
Investigative Assistance, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3468, 200 Constitution 
Avenue, NW., Washington, D.C. 20210, (202) 219-8095. This is not a 
toll-free number.

SUPPLEMENTARY INFORMATION: 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 Section 210 of the Energy 
Reorganization Act of 1974, as amended (``ERA''), now Section 211, 42 
U.S.C. 5851(b)(1). The amendments affect only ERA whistleblower 
complaints and do not extend to the procedures established in 29 CFR 
Part 24 for handling employee whistleblower complaints under the six 
other environmental employee protection statutes. The amendments to ERA 
apply to whistleblower claims filed on or after October 24, 1992, the 
date of enactment of Section 2902 of the Energy Policy Act of 1992.
    A notice of proposed rulemaking and request for comments was 
published in the Federal Register on March 16, 1994 (59 FR 12506). The 
Federal Register notice provided for a comment period until May 16, 
1994. A total of four comments were received during the comment period 
on the proposed regulations, all from employers or representatives of 
employers. The major issues raised by the commenters are identified 
below, as are the significant changes that have been made in the final 
regulatory text in response to the comments received. In addition to 
the substantive comments discussed below, commenters submitted minor 
editorial suggestions, some of which have been adopted and some of 
which have not been adopted.

Paperwork Reduction Act

    This regulation contains no new reporting or recordkeeping 
requirements. Reporting requirements contained in the regulations 
(Sec. 24.3) were previously reviewed and approved for use through 
February 28, 1998 by the Office of Management and Budget (OMB) and 
assigned OMB control number 1215-0183 under the provisions of the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13).

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 the 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 consistent interpretation, under former Section 210 of the 
ERA as well as the other environmental whistleblower laws which the 
Department of Labor (``DOL'') administers, has been that employees who 
file complaints internally with an employer are protected from employer 
reprisals. An employee is protected under 29 C.F.R. 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 expressly to include employees who file internal 
complaints with employers (thereby overriding the decision of the Fifth 
Circuit in Brown & Root), 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.

Revised Definition of ``Employer''

    Former Section 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 (``DOE''), except those 
involved in naval nuclear propulsion work under E.O. 12344, licensees 
of an agreement State under Section 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 was 
expanded from 30 days to 180 days from the date the violation occurs. 
Investigations of complaints, however, are still to 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.

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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 includes 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 revised 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 pretextual, that is, that a 
discriminatory reason more likely motivated the employer. The 
complainant thus bears the ultimate burden of proving by a 
preponderance of the evidence that he or she was retaliated against in 
violation of the law. In such ``pretext'' cases, the factfinder's 
disbelief of the reasons put forward by the employer, together with the 
elements of the prima facie case, may be sufficient to show such 
intentional discrimination. See St. Mary's Honor Center v. Hicks, 509 
U.S. 502 (1993); Dartey v. Zack, supra, pp. 6-9.
    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 
only by showing by a preponderance of the evidence that it would have 
reached the same decision even in the absence of the protected conduct.
    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)). This is a lesser standard 
than the ``significant'', ``motivating'', ``substantial'', or 
``predominant'' factor standard sometimes articulated in case law under 
statutes prohibiting discrimination. If the complainant does not make 
the prima facie showing, the complaint must be dismissed and the 
investigation discontinued.
    Even in cases where the complainant meets the initial burden 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 burden 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)). Where 
the complainant satisfies this burden, relief still 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 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.

Summary and Discussion of Major Comments

    Comments were received from the Tennessee Valley Authority (TVA); 
the Nuclear Energy Institute (the organization of the nuclear power 
industry responsible for coordinating efforts of utilities licensed by 
NRC on regulatory issues); the law firm of Winston & Strawn, on behalf 
of five utility companies and TVA; and Westinghouse Electric 
Corporation. In

[[Page 6616]]

addition, in the period since the comment period closed, a request for 
rulemaking was received from Steptoe and Johnson on behalf of Alyeska 
Pipeline Service Company, which has also been considered.
    The major comments received by the Department and the response of 
the Department to the comments are discussed as they pertain to each 
section of Part 24 which is amended or to which new provisions are 
added.
    One comment was the general suggestion that these rules should be 
produced through negotiated rulemaking, involving, as that process 
does, the regulatory agencies (Nuclear Regulatory Commission, 
Department of Energy, Environmental Protection Agency), industry, 
public interest groups, and respondents and complainants and their 
representatives. The Department does not believe that negotiated 
rulemaking is appropriate for these regulations. The regulations 
involve largely procedural issues not so difficult to resolve as to 
justify invoking the procedures of the Negotiated Rulemaking Act of 
1990, 5 U.S.C. 581 et seq.
    In the period since the proposed rule was published, two 
significant organizational changes have taken place in the Department 
of Labor which materially affect these regulations. By Secretary's 
Order No. 2-96 (61 FR 19978, May 3, 1996), the Secretary appointed an 
Administrative Review Board (``ARB'' or ``Board'') to decide all cases 
previously decided by the Secretary, including the various employee 
protection ``whistleblower'' statutes which are the subject of these 
regulations. Therefore the ARB has been substituted for references to 
the Secretary.
    In addition, the Secretary has delegated the authority to 
investigate complaints under these statutes to the Assistant Secretary 
of the Occupational Safety and Health Administration (``OSHA''), 
effective for all complaints received on or after February 3, 1997. 
Secretary's Order 6-96 (62 FR 111, Jan. 2, 1997, as corrected by 62 FR 
8085, Feb. 21, 1997). Since OSHA already had authority to investigate 
complaints under the employee protection provisions of the Surface 
Transportation Assistance Act and the discrimination provisions of the 
Occupational Safety and Health Act, this action placed all authority to 
investigate alleged discrimination because of an employee's complaints 
regarding the environment and safety and health (other than in the 
mining industry) in one agency. Therefore in these regulations OSHA has 
been substituted for all references to the Wage and Hour Division and 
the Administrator thereof.
    The Department has also published a proposed rule to provide new 
alternative dispute resolution (``ADR'') procedures in a number of 
Departmental programs, including the various whistleblower statutes. 62 
FR 6690 (Feb. 12, 1997). This would supplement existing procedures in 
the regulations of the Office of Administrative Law Judges, which allow 
the parties to a proceeding before an ALJ to request appointment of a 
settlement judge to seek voluntary resolution of the issues. 29 CFR 
18.9(e). The proposed rule envisions a pilot program under which the 
Department would investigate a complaint and then, where the case is 
found to be suitable for ADR, offer the employer and employees the 
option of mediation and/or arbitration. The ARB would not be bound by 
any resolution reached, but would incorporate the settlement in the 
final ARB order where it meets ARB standards. 62 FR 6693.

Section 24.1  Purpose and Scope

    The proposal updated the list of the Federal statutes providing 
employee protections for whistleblowing activities for which the 
Department of Labor is responsible for enforcement under this part to 
add the Comprehensive Environmental Response, Compensation and 
Liability Act of 1980, 42 U.S.C. 9610. This was subsequently 
accomplished in another rulemaking. 62 FR 19985 (May 3, 1996). No 
comments were received on this provision and no changes have been made.

Section 24.2  Obligations and Prohibited Acts

    The proposal revised this provision to reflect the statutory 
amendments adding to the list of protected activities explicitly 
covered under the ERA, and to state that under the Secretary's 
interpretation, the whistleblowing activities added to the ERA are 
protected under all of the whistleblower statutes. The requirement for 
posting of notices of the employee protection provisions of the ERA was 
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 and until the notice 
is later posted or 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.
    Three commenters state that references to the Atomic Energy Act of 
1954 are incorrect because that statute has no whistleblower provisions 
involving the Secretary of Labor, and they state that the NRC enforces 
all aspects of that statute.
    The Department recognizes that the whistleblower provisions were 
enacted to be a part of the Energy Reorganization Act of 1974, as 
amended in 1992. The confusion arises because the whistleblower 
provisions protect whistleblowers when they disclose alleged 
substantive violations of the Atomic Energy Act; however, when they are 
discriminated against for doing so, this is a violation of the ERA, not 
the Atomic Energy Act. The statutory references is clarified 
accordingly.
    Two commenters assert that the regulation's description of employer 
conduct which is prohibited--``intimidates, threatens, restrains, 
coerces, blacklists, discharges or in any other manner discriminates 
against an employee''--should be deleted in favor of the language of 
the statute, which prohibits the employer's ``discharge [of] any 
employee or otherwise discriminat[ing] against any employee with 
respect to his compensation, terms, conditions, or privileges of 
employment * * *.''
    The language in paragraph (b) of the proposed regulation is exactly 
the same as the language in Sec. 24.2(b) of the current regulation. The 
language is simply a fuller statement of the scope of prohibited 
conduct, which encompasses discrimination of any kind with respect to 
the terms, conditions or privileges of employment. Accordingly, no 
change is necessary.
    One commenter points out that the regulations proscribe 
discrimination by an employer against an employee who ``has'' engaged 
in protected conduct. The commenter believes that literally read, the 
regulation does not require a showing of a causal connection between 
whistleblowing and discrimination.
    In order to avoid any possibility of confusion, the language of the 
regulation in paragraphs (b) and (c) has been changed to reflect the 
statutory language.
    The regulations at Sec. 24.2(d) provide that the required poster 
must be prepared or approved by DOL. Two of the commenters believe that 
the poster

[[Page 6617]]

currently required by the Nuclear Regulatory Commission is adequate and 
no additional poster should be required. One commenter sees this as 
unnecessary as long as the employer's poster contains the required 
information.
    The statute states: ``The provisions of this section shall be 
prominently posted in any place of employment to which this section 
applies.'' The Department believes that it is necessary to use a poster 
prepared or approved by the Department to ensure that the poster 
contains the essential information which needs to be communicated to 
employees. For the convenience of the public, the Department has 
prepared a poster which is published as an appendix to this rule and 
which is available at any local OSHA office and at the DOL Website. The 
Department will also approve any poster which contains the same 
information and does not contain any misleading information. For 
example, the Department is working with NRC to approve a poster which 
would satisfy its needs as well as the requirements of the ERA, thus 
eliminating the need that both notices be posted.
    Contrary to the statement of the commenter, there is no requirement 
in these regulations that respondents keep records of the posting of 
the notice. This is a continuing requirement that should not require 
any kind of recordkeeping.
    Three commenters discuss the proposed Sec. 24.2(d)(2), under which 
the employer's failure to post the required notice of employee rights 
could lead to a tolling of the statute of limitations. They express the 
concern that the tolling rule will be applied too automatically, rather 
than on a case-by-case basis pursuant to general equitable principles 
as applied to all the facts and circumstances of a particular case.
    The regulation indicates that the employer has an opportunity to 
show that the complaining employee was in fact aware of his or her 
rights, and thus equitable tolling would not apply. A clarifying change 
is made to the regulation to provide that the 180 day period 
``ordinarily'' runs from the date the notice is posted (assuming of 
course that the employee was still employed at the site) or the 
employee receives actual notice.

Section 24.3  Complaints

    The proposed regulation revised Sec. 24.3 to reflect the 180-day 
filing period for complaints under the ERA.
    One commenter asserts that the regulations should provide that the 
respondent may raise the issue of timeliness of complaints any time 
prior to the conclusion of the hearing. The commenter suggests that 
without such provision respondents will be deprived of the opportunity 
to raise the timeliness issue at a time which is fair to them.
    As the commenter noted, pursuant to the rules of the Office of 
Administrative Law Judges at 29 C.F.R. 18.1(a), the Federal Rules of 
Civil Procedure (``FRCP'') apply in any instance where there is no 
explicit rule in Part 18 or the governing program's statute and 
regulations. Although, unlike under the Federal Rules, there is no 
provision for filing an answer in these regulations, there are commonly 
various occasions where issues such as timeliness can and appropriately 
should be raised. The Department believes it is reasonable to require 
that timeliness ordinarily be raised early in the proceedings, as both 
the ALJ and the Secretary ruled in Hobby v. Georgia Power Co., No. 90-
ERA-30, ALJ's Recommended Decision and Order (Nov. 8, 1991), Secretary 
(Aug. 4, 1995) (reversing and remanding on other grounds). A specific 
provision seems unnecessary.
    Two commenters take issue with the present practice, which is 
continued in the proposed regulations, of not requiring the complainant 
to serve the complaint on the respondent at the same time it is filed 
with the Department. Currently the respondent must wait to receive the 
complaint from the Department. The commenters argue that requiring the 
complainant to serve the complaint on the respondent would increase the 
respondent's response time. Under their view of what the regulations 
should require, if the complainant did not serve the respondent, then 
the respondent should have additional time to respond to the 
Department.
    In the Department's experience the procedure in the present 
regulations has worked satisfactorily. The Department may need to 
examine the complaint or, as discussed below, to supplement the 
complaint with interviews of the complainant, before sending it to the 
respondent. Furthermore, a complainant may wish to withdraw a complaint 
if, for example, he or she learns it is untimely. A comparison in this 
regard with proceedings before administrative law judges is not valid, 
because the complaint initiates an investigation, not a proceeding 
before an ALJ.
    One commenter states that the regulations appear to protect persons 
who raise concerns in bad faith, but does not cite any specific 
language in the regulations to support that proposition.
    Nothing in the current or proposed regulations provides for relief 
where complaints are found to be made in bad faith. Such a provision 
seems unnecessary. However, former Sec. 24.9, which was inadvertently 
omitted from the proposal, has been included again. This provision 
declares that employees who deliberately and without direction of their 
employer violate Federal law are not protected.

Section 24.4  Investigations

    Section 24.4 was proposed to be 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 proposed 
regulation provided 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 proposed regulation also made 
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).
    One commenter suggests that the regulations should make clear that 
in a case where only a prevailing complainant appeals to an ALJ because 
of dissatisfaction with the remedy ordered by the Administrator (now 
the Assistant Secretary for OSHA), the non-appealing respondent would 
have an opportunity to contest liability before the ALJ. This would 
prevent respondents from having to file appeals in cases in which they 
have decided not to challenge the Administrator's ruling, not knowing 
in which cases the complainant will contest the remedy.
    Allowing cross-appeals would eliminate the need for complainants 
and respondents to guess in such cases or to file appeals in all such 
cases. This section is amended accordingly to allow for cross appeals. 
In addition, this section is simplified to provide the mechanism for 
appeals of both the complainant and the respondent in the same 
paragraph.
    As one commenter suggested, this section and Sec. 24.8 are further 
amended in accordance with the Supreme Court decision in Darby v. 
Cisneros, 509 U.S. 137 (1993), to make it clear that exhaustion of 
administrative remedies is required.
    In response to a question raised by one commenter, Sec. 24.4(d)(3) 
is revised to make it clear that service of copies of the appeal must 
be done by the party appealing.

[[Page 6618]]

Section 24.5  Investigations under the Energy Reorganization Act

    A new Sec. 24.5, concerning investigations under the Energy 
Reorganization Act, was proposed to detail 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.
    Three commenters are critical of the Department's formulation in 
Sec. 24.5(b) of what constitutes a prima facie case. They believe that 
the regulations should require the complainants to provide supporting 
evidence with their complaints, and they believe that the regulations 
give too much weight to the amount of time between the protected 
activity and the adverse action. In support of this latter criticism 
they cite cases for the proposition that this temporal proximity may be 
overcome by the employer's evidence of non-discriminatory reasons for 
the adverse action.
    It would be overly restrictive to require a complainant to provide 
evidence of discrimination (as distinguished from a showing) when the 
only purpose of the complaint is to trigger an investigation to 
determine if there is evidence of discrimination. Complainants 
generally do not have the knowledge or resources to actually submit 
``evidence'' of the violative conduct. With regard to the cited cases 
finding that temporal proximity between the protected activity and the 
adverse action was not enough to prove discrimination, those cases 
involved final decisions on the merits after evidence has been 
presented by both parties. As set forth in Couty v. Dole, 886 F.2d 147, 
148 (8th Cir. 1989), case law establishes that ``temporal proximity is 
sufficient as a matter of law to establish the final required element 
in a prima facie case of retaliatory discharge.''
    Furthermore, the regulation at issue here involves the complaint 
stage of the proceeding and merely triggers an investigation and not a 
finding by OSHA on the merits of the complaint. The regulation does not 
state that temporal proximity is always enough to establish a prima 
facie case, but rather states only that it is normally so. In arriving 
at a final decision, OSHA considers all pertinent evidence in addition 
to temporal proximity.
    One commenter cites cases dealing with who in the respondent 
organization must have the knowledge of the protected activity as part 
of a prima facie case and suggests that the regulations address this 
issue. This is a matter which must be determined on the basis of all 
the facts and circumstances of a particular case and is not suitable 
for inclusion in the regulations.
    The proposed regulations at Sec. 24.5(b)(2) provide that the 
complainant must allege the existence of facts and evidence 
constituting a prima facie case of a violation in the complaint, 
supplemented as appropriate by interviews of the complainant. One 
commenter seeks elimination of these supplemental interviews. Two 
commenters suggest that since Wage and Hour (now the Occupational 
Safety and Health Administration) provides the complaint to the 
employer for his response, it is only fair to provide the employer with 
the information obtained in the interviews, as it might contain one or 
more of the elements of a violation to which the employer is required 
to respond.
    In the Department's view, the supplementation of the complaint by 
interviews of the complainant is necessary and appropriate because 
employees commonly lack the sophistication to aver the elements of a 
prima facie case and evidence in support thereof. It is recognized, 
however, that the supplemental interviews become a part of the 
complaint, and therefore in all fairness this information, in addition 
to the original complaint (which is routinely provided to the 
employer), ought to be provided to the employer. The regulation has 
been amended to so provide.
    As suggested by one commenter, Sec. 24.5(b)(2) has been revised to 
separate out two elements of the required prima facie showing--that 
adverse personnel action has occurred, and that it likely resulted from 
the protected activity.
    One commenter questions the language in Sec. 24.5(b)(3) wherein a 
prima facie case is described as an inference that the respondent knew 
of the complainant's protected activity and the protected activity 
``was likely a reason'' for an adverse personnel action. The commenter 
believes that this language creates a standard different from the 
statutory requirement that the protected activity be ``a contributing 
factor'' in the unfavorable personnel action.
    There is no intention to deviate from the statutory standard for 
establishment of a prima facie case, as set forth in Sec. 24.5(b)(2). 
The language ``was likely a reason'' was used to explain the meaning of 
``was a contributing factor.'' However, the provision is clarified.
    One commenter argues that this section should require pleading and 
proof of various facts relating to a claim of retaliatory nonselection, 
failure to hire, nonretention, nonpromotion, improper disciplinary 
action, improper layoff or contract termination.
    The facts that must be pled and proven to establish a particular 
form of discrimination depend on the facts and circumstances of a 
particular case. The Department does not believe that it is appropriate 
to attempt to catalogue in a regulation all such facts for all possible 
forms of discrimination, as suggested by the commenter.
    One commenter points out a typographical error: At Sec. 24.5(b)(2) 
the word ``appropriated'' was intended to read ``appropriate.''
    Another commenter points out a typographical error in 
Sec. 24.5(c)(2), which provides that the respondent has five business 
days to rebut the allegations in the complaint ``from receipt of 
notification of the complainant.'' This is a typographical error and 
the provision is amended by changing ``complainant'' to ``complaint''.
    One commenter believes that the legislative history of the 1992 
Amendments shows that the ``clear and convincing'' standard applicable 
to the respondent's burden of proof to rebut the complainant's prima 
facie case applies only at the pre-investigative stage of the case and 
does not apply when the case is before the ALJ and the Secretary (ARB).
    The 1992 Amendments show clearly that the ``clear and convincing'' 
standard is applicable to respondents at all stages of the proceedings. 
The new Sec. 24.5(c)(1) applies the standard to the pre-investigative 
stage of the proceedings. The new Sec. 24.7(b) applies the standard to 
proceedings before the ALJ and the Administrative Review Board. The 
interplay of these provisions was at issue in the recent case of Dysert 
v. United States Secretary of Labor, 105 F.3d 607 (11th Cir. 1997), in 
which the court affirmed the Secretary's determination that a 
complainant must show more than a prima facie case of discrimination in 
order to shift the burden of persuasion to the employer. Rather, the 
complainant must ``demonstrate'' that the protected behavior was a 
contributing factor by a preponderance of the evidence before the ALJ. 
In dual motive cases, the burden then shifts to the respondent to 
demonstrate by clear and convincing evidence that it would have taken 
the same action in the absence of the protected activity.

[[Page 6619]]

    Three commenters do not believe that five days is enough time for 
respondents to respond to the complainant's prima facie case with clear 
and convincing evidence that it would have taken the same unfavorable 
personnel action in the absence of protected activity.
    Given the overall statutory time frame of 90 days, and the time 
necessary for other stages of the proceedings, no more than five days 
is available for this stage of the process. At any time during the 
investigation the respondent is free to provide OSHA with evidence in 
its defense which will be considered by OSHA in making its final 
determination.
    Section 24.5(d) is revised to simplify the provisions for appeal of 
a notice of dismissal of a complaint by cross-referencing the service 
provisions in Sec. 24.4.

Section 24.6  Hearings

    Proposed Sec. 24.6 (formerly Sec. 24.5) made it clear that the 
Wage-Hour Administrator (now the Assistant Secretary of OSHA) may 
participate in proceedings as a party or as amicus curiae. In addition, 
at the request of the Nuclear Regulatory Commission, an express 
provision was added to permit Federal agencies to participate as amicus 
curiae, and to receive copies of pleadings on request.
    Because of comments suggesting that the various time frames are too 
short, and in recognition of current practices, Sec. 24.6(a) is amended 
to allow the parties to agree to a postponement of the hearing.
    Two commenters criticize the new provision in Sec. 24.6(f)(1) 
allowing the Administrator (now the Assistant Secretary of OSHA) to 
participate as a party or as amicus curiae at any time in the 
proceedings. They argue that the Administrator cannot objectively 
investigate a complaint and then participate as a party, and that the 
Administrator's participation as a party would present problems about 
confidential information obtained during the investigative stage of the 
proceeding and with the attendance of witnesses at the hearing. In 
addition, one commenter believes this provision would run counter to 29 
CFR 18.32 and be in conflict with Secretary's Order 1-93 (now 
Secretary's Order 6-96), which specifies that the Solicitor of Labor 
makes the determination to bring legal proceedings.
    This proposal makes it expressly possible for the Assistant 
Secretary to participate as an amicus or a party as a matter of right 
in any case where such participation is necessary or beneficial to the 
program. Under the existing regulations, the Administrator (now the 
Assistant Secretary) in certain cases has acted as amicus before ALJs 
and the Secretary (now the ARB). The Assistant Secretary's 
participation as an amicus or party would follow an investigation 
conducted pursuant to the normal procedures, as happens in most other 
programs where the Department prosecutes after conducting an 
investigation. Since the Assistant Secretary is not the adjudicator, 
there would be no conflict between the Assistant Secretary first 
investigating a complaint and later acting in a prosecutorial capacity. 
An analogous procedure is followed in other programs. See, e.g., the 
Davis-Bacon regulations at 29 CFR 5.11. Furthermore, as in other 
programs, OSHA would not be required to disclose confidential 
information. Witnesses would be available pursuant to normal 
procedures. Since OSHA would not be both a party in a case and an 
advisor to the Secretary, there is no conflict with 29 CFR 18.32. 
Finally, the Solicitor of Labor, or appropriate designee, would 
continue to make the decision as to participation in the legal 
proceedings, and would represent the Assistant Secretary, consistent 
with Secretary's Order 6-96.
    One commenter asserts that the requirements in Sec. 24.6(f)(2) and 
in Secs. 24.4(d)(4) and 24.5(d)(2) that parties serve the Administrator 
(now the Assistant Secretary of OSHA) and the Associate Solicitor of 
the Fair Labor Standards Division with pleadings and with copies of the 
request for a hearing violate the Paperwork Reduction Act, and that 
requiring these ``numerous filings'' is burdensome. Another commenter 
reads the proposed rule as requiring employers to keep records of 
compliance with the posting requirements.
    This requirement is not subject to the Paperwork Reduction Act 
because the Act exempts collections of information during the conduct 
of an administrative action, investigation or audit against specific 
individuals or entities. 5 CFR 1320.4(a)(2). Since OSHA does not 
participate in most cases, service of copies of pleadings and briefs is 
important to keep the Assistant Secretary and the Solicitor informed of 
cases in which the Department could have an interest.
    One commenter suggests that the regulations contain an express 
reference making the rules for the conduct of ALJ proceedings in 29 CFR 
Part 18 and the rules of evidence in that part applicable to the 
proceedings in these cases. This would replace the provision in the 
current Sec. 24.5(e)(1) relating to ``procedures, evidence and 
record.'' A petition for rulemaking has also been received making the 
same request.
    The regulations at 29 C.F.R. 24.5(e)(1) (renumbered as 
Sec. 24.6(e)(1)) provide that formal rules of evidence shall not apply 
to these proceedings. The Department believes it is inappropriate to 
apply the rules of evidence at 29 C.F.R. Part 18 because whistleblowers 
often appear pro se. Furthermore, hearsay evidence is often appropriate 
in whistleblower cases, as there often are no relevant documents or 
witnesses to prove discriminatory intent. ALJs have the responsibility 
to determine the appropriate weight to be given such evidence. For 
these reasons the interests of determining all of the relevant facts is 
best served by not requiring strict evidentiary rules and no change is 
made in this provision.
    One commenter states that the regulations need to address the issue 
of voluntary dismissals, allowing unilateral dismissals only prior to a 
request for a hearing. After a request for a hearing a dismissal could 
only be granted if the respondent agreed to it or was compensated for 
costs, fees and expenses incurred in defending against the complaint up 
to that point.
    Although the regulations have no provision addressing voluntary 
dismissals, these proceedings are governed by the rules of the Office 
of Administrative Law Judges at 29 C.F.R. Part 18 unless these 
regulations provide to the contrary. Those rules in turn provide at 
Sec. 18.1(a) that the Federal Rules of Civil Procedure (``FRCP'') apply 
in any instance where there is no explicit rule in Part 18 or the 
governing program's statute and regulations. Rule 41(a) of the FRCP 
allows voluntary, unilateral dismissal only up to the time the answer 
(or motion for summary judgment if earlier) is filed; thereafter the 
dismissal must be agreed to by the respondent or ordered by the court. 
The Department has applied Rule 41(a) to whistleblower proceedings. 
See, e.g., Carter v. Los Alamos Nat'l Lab., No. 93-CAA-10 (March 21, 
1994); Ryan v. Pacific Gas & Electric Co., No. 87-ERA-32 (Aug. 9, 
1989); Nolder v. Raymond Kaiser Eng'rs, Inc., No. 84-ERA-5 (June 28, 
1985). The Department sees no reason why any other rule should apply to 
whistleblower proceedings. Therefore no amendment is necessary. There 
is no basis in the statute for requiring employees to pay fees and 
costs.

Section 24.7  Recommended Decision and Order

    Proposed Sec. 24.7 (formerly Sec. 24.6), concerning recommended 
decisions and orders, added the statutory requirement that interim 
relief be ordered in ERA

[[Page 6620]]

cases once an administrative law judge issues a recommended decision 
that the complaint is meritorious. Proposed Sec. 24.7 also provided 
with respect to all whistleblower cases that the recommended decision 
of the administrative law judge becomes the final order of the 
Secretary if no petition for review is filed.
    Two commenters challenge the constitutionality of the provision in 
Sec. 24.7 for an award of compensatory damages upon a finding of a 
violation, urging that only a jury can make such an award.
    The regulation merely tracks the statutory provision that 
compensatory damages are available as a remedy. DOL, as the agency 
given the administrative authority to implement that statutory 
provision, has no authority to question the constitutionality of the 
statute. Furthermore, Congress has the authority to create a statutory 
cause of action analogous to a common-law legal claim and assign 
resolution to an administrative or other tribunal where jury 
proceedings are not available, provided the adjudication is of a public 
right--broadly defined to include ```a seemingly private right that is 
so closely integrated into a public regulatory scheme as to be a matter 
appropriate for agency resolution with limited involvement by the 
Article III judiciary.''' Granfinanciera, S.A. v. Nordberg, 492 U.S. 
33, 51-55, 54 (1989), quoting from Thomas v. Union Carbide Agricultural 
Products Co., 473 U.S. 568, 593-94 (1985) (Brennan, J., concurring).
    Three commenters believe that the 20 days allotted for issuance of 
the ALJ's decision and order is too short, taking into account such 
factors as the time necessary to prepare hearing transcripts and post-
hearing briefs.
    The Department considers the 20-day time period necessary, like the 
other time periods in the regulations, because of the overall time 
period in the statute of 90 days from complaint to Secretary's 
decision. In a particular case, in accordance with current practice, 
the parties may agree to extend the period for a hearing or decision 
and order, and the regulations have been amended to so provide.
    Two commenters argue that the provision in Sec. 24.7(c)(1) 
requiring interim relief for the employee upon a finding by an ALJ of a 
violation should include a hearing before the ALJ on the issue of 
interim relief. Reinstatement should only be available if a violation 
is proven.
    The purpose of interim relief, to provide a meritorious complainant 
with a speedy remedy, would be frustrated if a second hearing were 
required. Due process requirements will have been fully satisfied by 
the ALJ hearing already provided by the statute and regulations. 
Moreover, the statute explicitly provides that a preliminary order of 
reinstatement (and other relief) shall be issued upon the conclusion of 
the ALJ hearing and issuance of a recommended decision that the 
complaint has merit. 42 U.S.C. 5851(b)(2)(A). Clearly nothing further 
is required. The regulation has been modified to make it clear that 
preliminary relief is required only if a violation of the Act has been 
established.

Section 24.8  Review by the Secretary (ARB)

    A new proposed Sec. 24.8 detailed the procedure for seeking review 
by the Secretary of a decision of an Administrative Law Judge.
    Two commenters question whether review by the Secretary (now the 
ARB) of an ALJ's decision is a matter of right or is discretionary, 
and, if the latter, what criteria the Secretary would use in exercising 
that discretion. Clarification was also requested of the content of the 
petition for review.
    The intent of the regulations is that appeals be a matter of right, 
and not discretionary with the ARB. It is not required that the 
petition for review have any particular form.
    One commenter states that in order to avoid frivolous complaints 
and abusive litigation tactics, the regulations should provide for the 
Secretary's discretionary awarding of compensation against any losing 
party guilty of such actions.
    The whistleblower statutes do not provide for that form of relief. 
The relief described in Sec. 24.8(d) as potentially available for 
successful complainants is the only relief provided by the statute.

Miscellaneous Provisions

    The proposed regulations removed Sec. 24.7, concerning judicial 
review, and former Sec. 24.8, concerning enforcement of decisions of 
the Secretary. 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 they are prescribed by statute and concern judicial 
remedies.
    One commenter has expressed concern that removal of the former 
Sec. 24.7(c), in which the Secretary is directed to prepare the record 
of a case in the event of judicial review, could interfere with the 
judicial review process.
    The Department is of the view that it is unnecessary to have a 
regulation describing the manner in which the record is filed with the 
court. When judicial review is sought in the court of appeals, the 
Department follows Rule 17(b) of the Federal Rules of Appellate 
Procedure, which provides a number of alternative procedures for filing 
the record.
    As one commenter suggested, and as discussed above, the provisions 
of former Sec. 24.9, which were inadvertently omitted from the proposed 
rule, have been reinstated in the regulation.

Dates of Applicability

    Two commenters read the regulations as applicable to complaints 
filed under the ERA prior to the October 1992 ERA Amendments.
    Section 2902(i) of the 1992 Amendments, Public Law 102-486, 
provides:

    ``The amendments made by this section shall apply to claims 
filed under section 211(b)(1) of the Energy Reorganization Act of 
1974 (42 U.S.C. 5851(b)(1)) on or after the date of the enactment of 
this Act.''

The date of the enactment of that Act is October 24, 1992, so the 
regulatory provisions implementing the 1992 ERA Amendments apply only 
to ERA complaints filed on or after that date.
    Furthermore, as discussed above, the delegation of authority to the 
Assistant Secretary for Occupational Safety and Health is effective 
only with respect to complaints received on or after February 3, 1997.
    In all other respects, the provisions of this part are applicable 
to actions taken on or after the effective date.

Executive Order 12866; Section 202 of the Unfunded Mandates Reform Act 
of 1995; Small Business Regulatory Enforcement Fairness Act; Executive 
Order 12875

    The Department has concluded that this rule is not a ``significant 
regulatory action'' within the meaning of Executive Order 12866. 
Because it is procedural in nature, it will not: (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

[[Page 6621]]

mandates, the President's priorities, or the principles set forth in 
Executive Order 12866. Therefore, no regulatory impact analysis has 
been prepared. Similarly, because the rule is not economically 
significant, it is not a major rule within the meaning of Section 
804(2) of the Small Business Regulatory Enforcement Fairness Act, and 
does not require a Section 202 statement under the Unfunded Mandates 
Reform Act of 1995. Finally, these regulations will not result in any 
increased costs to State, local or tribal governments and therefore are 
not subject to Executive Order 12875.

Regulatory Flexibility Analysis

    The Department has determined that the regulation will not have a 
significant economic impact on a substantial number of small entities. 
The regulation implements procedural revisions necessitated by 
statutory amendments and provisions which improve the procedures for 
speedier resolution of whistleblower complaints. The Department of 
Labor certified to this effect to the Chief Counsel for Advocacy of the 
Small Business Administration. Therefore, no regulatory flexibility 
analysis is required.
    Document Preparation: This document was prepared under the 
direction and control of Gregory R. Watchman, Acting Assistant 
Secretary, Occupational Safety and Health Administration, U.S. 
Department of Labor.

List of Subjects in 29 CFR Part 24

    Administrative practice and procedure, Employment, Environmental 
protection, Investigations, Reporting and recordkeeping requirements, 
Whistleblowing.

    Signed at Washington, DC, this 30th day of January 1998.
Charles N. Jeffress,
Acting Assistant Secretary for Occupational Safety and Health.
    Accordingly, for the reasons set out in the preamble, and under the 
delegation of authority in Secretary's Order 6-96 (62 FR 111, Jan. 2, 
1997, as corrected by 62 FR 8085, Feb. 21, 1997), 29 CFR part 24 is 
revised to read as follows:

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

Sec.
24.1  Purpose and scope.
24.2  Obligations and prohibited acts.
24.3  Complaint.
24.4  Investigations.
24.5  Investigations under the Energy Reorganization Act.
24.6  Hearings.
24.7  Recommended decision and order.
24.8  Review by the Administrative Review Board.
24.9  Exception.
Appendix A to Part 24--Your Rights Under the Energy Reorganization 
Act.

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


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.
    (b) Procedures are established by this part pursuant to the Federal 
statutory provisions listed in paragraph (a) of this section, for the 
expeditious handling of complaints by employees, or persons acting on 
their behalf, of discriminatory action by employers.
    (c) Throughout this part, ``Secretary'' or ``Secretary of Labor'' 
shall mean the Secretary of Labor, U.S. Department of Labor, or his or 
her designee. ``Assistant Secretary'' shall mean the Assistant 
Secretary for Occupational Safety and Health, U.S. Department of Labor, 
or his or her designee.


Sec. 24.2  Obligations and prohibited acts.

    (a) No employer subject to the provisions of any of the Federal 
statutes listed in Sec. 24.1(a), or to the Atomic Energy Act of 1954 
(AEA), 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 and the regulations in this part if such employer intimidates, 
threatens, restrains, coerces, blacklists, discharges, or in any other 
manner discriminates against any employee because the employee has:
    (1) Commenced or caused to be commenced, or is about to commence or 
cause to be commenced, a proceeding under one of the Federal statutes 
listed in Sec. 24.1(a) or a proceeding for the administration or 
enforcement of any requirement imposed under such Federal statute;
    (2) Testified or is about to testify in any such proceeding; or
    (3) Assisted or participated, or is about to assist or participate, 
in any manner in such a proceeding or in any other action to carry out 
the purposes of such Federal statute.
    (c) Under the Energy Reorganization Act, and by interpretation of 
the Secretary under any of the other statutes listed in Sec. 24.1(a), 
any employer is deemed to have violated the particular federal law and 
these regulations if such employer intimidates, threatens, restrains, 
coerces, blacklists, discharges, or in any other manner discriminates 
against any employee because the employee has:
    (1) Notified the employer of an alleged violation of such Federal 
statute or the AEA of 1954;
    (2) Refused to engage in any practice made unlawful by such Federal 
statute or the AEA of 1954, 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 
or the AEA of 1954.
    (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 
apply a fully legible copy of the notice prepared by the Occupational 
Safety and Health Administration, printed as appendix A to this part, 
or a notice approved by the Assistant Secretary for Occupational Safety 
and Health that contains substantially the same provisions and explains 
the employee protection provisions of the Act and the regulations in 
this part. Copies of the notice prepared by DOL may be obtained from 
the Assistant Secretary for Occupational Safety and Health, Washington, 
D.C. 20210, from local offices of the Occupational Safety and Health 
Administration, or from the Department of Labor's Website at http://
www.osha.gov.
    (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 Assistant Secretary within 180 days of an 
alleged violation shall be inoperative unless the respondent 
establishes that the complainant had notice of the material provisions 
of the notice. If it is established that the notice was posted at the 
employee's place of employment after the alleged discriminatory action 
occurred or that

[[Page 6622]]

the complainant later obtained actual notice, the 180 days shall 
ordinarily run from that date.


Sec. 24.3  Complaint.

    (a) Who may file. An employee who believes that he or she has been 
discriminated against by an employer in violation of any of the 
statutes listed in Sec. 24.1(a) may file, or have another person file 
on his or her behalf, a complaint alleging such discrimination.
    (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.
    (c) Form of complaint. No particular form of complaint is required, 
except that a complaint must be in writing and should include a full 
statement of the acts and omissions, with pertinent dates, which are 
believed to constitute the violation.
    (d) Place of filing. A complaint may be filed in person or by mail 
at the nearest local office of the Occupational Safety and Health 
Administration, listed in most telephone directories under U.S. 
Government, Department of Labor. A complaint may also be filed with the 
Office of the Assistant Secretary, Occupational Safety and Health 
Administration, U.S. Department of Labor, Washington, D.C. 20210.

    (Approved by the Office of Management and Budget under control 
number 1215-0183.)


Sec. 24.4  Investigations.

    (a) Upon receipt of a complaint under this part, the Assistant 
Secretary shall notify the person named in the complaint, and the 
appropriate office of the Federal agency charged with the 
administration of the affected program of its filing.
    (b) The Assistant Secretary shall, on a priority basis, investigate 
and gather data concerning such case, and as part of the investigation 
may enter and inspect such places and records (and make copies 
thereof), may question persons being proceeded against and other 
employees of the charged employer, and may require the production of 
any documentary or other evidence deemed necessary to determine whether 
a violation of the law involved has been committed.
    (c) Investigations under this part shall be conducted in a manner 
which protects the confidentiality of any person other than the 
complainant who provides information on a confidential basis, in 
accordance with part 70 of this title.
    (d)(1) Within 30 days of receipt of a complaint, the Assistant 
Secretary shall complete the investigation, determine whether the 
alleged violation has occurred, and give notice of the determination. 
The notice of determination shall contain a statement of reasons for 
the findings and conclusions therein and, if the Assistant Secretary 
determines that the alleged violation has occurred, shall include an 
appropriate order to abate the violation. Notice of the determination 
shall be given by certified mail to the complainant, the respondent, 
and their representatives (if any). At the same time, the Assistant 
Secretary shall file with the Chief Administrative Law Judge, U.S. 
Department of Labor, the original complaint and a copy of the notice of 
determination.
    (2) The notice of determination shall include or be accompanied by 
notice to the complainant and the respondent that any party who desires 
review of the determination or any part thereof, including judicial 
review, shall file a request for a hearing with the Chief 
Administrative Law Judge within five business days of receipt of the 
determination. The complainant or respondent in turn may request a 
hearing within five business days of the date of a timely request for a 
hearing by the other party. If a request for a hearing is timely filed, 
the notice of determination of the Assistant Secretary shall be 
inoperative, and shall become operative only if the case is later 
dismissed. If a request for a hearing is not timely filed, the notice 
of determination shall become the final order of the Secretary.
    (3) A request for a hearing shall be filed with the Chief 
Administrative Law Judge by facsimile (fax), telegram, hand delivery, 
or next-day delivery service. A copy of the request for a hearing shall 
be sent by the party requesting a hearing to the complainant or the 
respondent (employer), as appropriate, on the same day that the hearing 
is requested, by facsimile (fax), telegram, hand delivery, or next-day 
delivery service. A copy of the request for a hearing shall also be 
sent to the Assistant Secretary for Occupational Safety and Health and 
to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, D.C. 20210.


Sec. 24.5  Investigations under the Energy Reorganization Act.

    (a) In addition to the investigation procedures set forth in 
Sec. 24.4, 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 Sec. 24.2(b) was a contributing factor in the 
unfavorable personnel action alleged in the complaint.
    (2) The complaint, supplemented as appropriate 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;
    (iii) The employee has suffered an unfavorable personnel action; 
and
    (iv) The circumstances were 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.

[[Page 6623]]

    (2) Upon receipt of a complaint under the Energy Reorganization 
Act, the respondent shall be provided with a copy of the complaint (as 
supplemented by interviews of the complainant, if any) and advised that 
any evidence it may wish to submit to rebut the allegations in the 
complaint must be received within five business days from receipt of 
notification of the complaint. 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) Whenever the Assistant Secretary dismisses a complaint pursuant 
to this section without completion of an investigation, the Assistant 
Secretary 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 
Assistant Secretary 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 constitute a notice 
of determination within the meaning of Sec. 24.4(d), and any request 
for a hearing shall be filed and served in accordance with the 
provisions of Sec. 24.4(d) (2) and (3).


Sec. 24.6  Hearings.

    (a) Notice of hearing. The administrative law judge to whom the 
case is assigned shall, within seven calendar days following receipt of 
the request for hearing, notify the parties by certified mail, directed 
to the last known address of the parties, of a day, time and place for 
hearing. All parties shall be given at least five days notice of such 
hearing. However, because of the time constraints upon the Secretary by 
the above statutes, no requests for postponement shall be granted 
except for compelling reasons or with the consent of all parties.
    (b) Consolidated hearings. When two or more hearings are to be 
held, and the same or substantially similar evidence is relevant and 
material to the matters at issue at each such hearing, the Chief 
Administrative Law Judge may, upon motion by any party or on his own or 
her own motion, order that a consolidated hearing be conducted. Where 
consolidated hearings are held, a single record of the proceedings 
shall be made and the evidence introduced in one case may be considered 
as introduced in the others, and a separate or joint decision shall be 
made, as appropriate.
    (c) Place of hearing. The hearing shall, where possible, be held at 
a place within 75 miles of the complainant's residence.
    (d) Right to counsel. In all proceedings under this part, the 
parties shall have the right to be represented by counsel.
    (e) Procedures, evidence and record--(1) Evidence. Formal rules of 
evidence shall not apply, but rules or principles designed to assure 
production of the most probative evidence available shall be applied. 
The administrative law judge may exclude evidence which is immaterial, 
irrelevant, or unduly repetitious.
    (2) Record of hearing. All hearings shall be open to the public and 
shall be mechanically or stenographically reported. All evidence upon 
which the administrative law judge relies for decision shall be 
contained in the transcript of testimony, either directly or by 
appropriate reference. All exhibits and other pertinent documents or 
records, either in whole or in material part, introduced as evidence, 
shall be marked for identification and incorporated into the record.
    (3) Oral argument; briefs. Any party, upon request, may be allowed 
a reasonable time for presentation of oral argument and to file a 
prehearing brief or other written statement of fact or law. A copy of 
any such prehearing brief or other written statement shall be filed 
with the Chief Administrative Law Judge or the administrative law judge 
assigned to the case before or during the proceeding at which evidence 
is submitted to the administrative law judge and shall be served upon 
each party. Post-hearing briefs will not be permitted except at the 
request of the administrative law judge. When permitted, any such brief 
shall be limited to the issue or issues specified by the administrative 
law judge and shall be due within the time prescribed by the 
administrative law judge.
    (4) Dismissal for cause. (i) The administrative law judge may, at 
the request of any party, or on his or her own motion, issue a 
recommended decision and order dismissing a claim:
    (A) Upon the failure of the complainant or his or her 
representative to attend a hearing without good cause; or
    (B) Upon the failure of the complainant to comply with a lawful 
order of the administrative law judge.
    (ii) In any case where a dismissal of a claim, defense, or party is 
sought, the administrative law judge shall issue an order to show cause 
why the dismissal should not be granted and afford all parties a 
reasonable time to respond to such order. After the time for response 
has expired, the administrative law judge shall take such action as is 
appropriate to rule on the dismissal, which may include a recommended 
order dismissing the claim, defense or party.
    (f)(1) At the Assistant Secretary's discretion, the Assistant 
Secretary 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 Assistant 
Secretary is participating in the proceeding, shall be sent to the 
Assistant Secretary, Occupational Safety and Health Administration, and 
to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, D.C. 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.


Sec. 24.7  Recommended decision and order.

    (a) Unless the parties jointly request or agree to an extension of 
time, 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

[[Page 6624]]

administrative law judge shall be a proceeding on the merits of the 
complaint. Neither the Assistant Secretary's determination to dismiss a 
complaint pursuant to Sec. 24.5 without completing an investigation nor 
the Assistant Secretary'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, and that a violation 
of the Act has occurred, 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 his or her former 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) In cases brought under the Energy Reorganization Act, when an 
administrative law judge issues a recommended order that the complaint 
has merit and containing the relief prescribed in paragraph (c)(1) of 
this section, the administrative law judge shall also issue a 
preliminary order providing all of the relief specified in paragraph 
(c)(1) of this section 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 Administrative Review Board. Any award of 
compensatory damages shall not be effective until the final decision is 
issued by the Administrative Review Board.
    (d) The recommended decision of the administrative law judge shall 
become the final order of the Secretary unless, pursuant to Sec. 24.8, 
a petition for review is timely filed with the Administrative Review 
Board.


Sec. 24.8  Review by the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a recommended decision of the administrative law judge shall file a 
petition for review with the Administrative Review Board (``the 
Board''), which has been delegated the authority to act for the 
Secretary and issue final decisions under this part. To be effective, 
such a petition must be received within ten business days of the date 
of the recommended decision of the administrative law judge, and shall 
be served on all parties and on the Chief Administrative Law Judge. If 
a timely petition for review is filed, the recommended decision of the 
administrative law judge shall be inoperative unless and until the 
Board issues an order adopting the recommended decision, except that 
for cases arising under the Energy Reorganization Act of 1974, a 
preliminary order of relief shall be effective while review is 
conducted by the Board.
    (b) Copies of the petition for review and all briefs shall be 
served on the Assistant Secretary, Occupational Safety and Health 
Administration, and on the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor, Washington, D.C. 20210.
    (c) The 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 Board 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 Board, 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 Board, for, or in connection with, the bringing of 
the complaint upon which the order was issued.
    (e) If the Board determines that the party charged has not violated 
the law, an order shall be issued denying the complaint.


Sec. 24.9  Exception.

    This part shall have no application to any employee alleging 
activity prohibited by this part who, acting without direction from his 
or her employer (or the employer's agent), deliberately causes a 
violation of any requirement of a Federal statute listed in 
Sec. 24.1(a).
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[[Page 6625]]

Appendix A to Part 24--Your Rights Under the Energy Reorganization 
Act
[GRAPHIC] [TIFF OMITTED] TR09FE98.000

[FR Doc. 98-2922 Filed 2-6-98; 8:45 am]
BILLING CODE 4510-26-P