[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]
[[Page 6613]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
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
[[Page 6614]]
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.
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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.
[[Page 6615]]
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]
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