Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982 (STAA), as Amended |
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David Michaels
Department of Labor
July 27, 2012
[Federal Register Volume 77, Number 145 (Friday, July 27, 2012)]
[Rules and Regulations]
[Pages 44121-44139]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17994]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1978
[Docket Number: OSHA-2008-0026]
RIN 1218-AC36
Procedures for the Handling of Retaliation Complaints Under the
Employee Protection Provision of the Surface Transportation Assistance
Act of 1982 (STAA), as Amended
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: This document provides the final text of regulations governing
employee protection (or ``whistleblower'') claims under the Surface
Transportation Assistance Act of 1982 (STAA), as amended, implementing
statutory changes to STAA enacted into law on August 3, 2007, as part
of the Implementing Recommendations of the 9/11 Commission Act of 2007.
On August 31, 2010, the Occupational Safety and Health Administration
(OSHA) published an interim final rule (IFR) for STAA whistleblower
complaints in the Federal Register and requested public comment on the
IFR. This final rule implements changes to the IFR in response to
comments received, where appropriate. This final rule also finalizes
changes to the procedures for handling whistleblower complaints under
STAA that were designed to make them more consistent with OSHA's
procedures for handling retaliation complaints under Section 211 of the
Energy Reorganization Act of 1974, and other whistleblower provisions.
It also sets forth interpretations of STAA.
DATES: This final rule is effective on July 27, 2012.
FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Director, Office of the
Whistleblower Protection Program, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3112, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202) 693-2199. This is not
a toll-free number. This Federal Register publication is available in
alternative formats: large print, electronic file on computer disk
(Word Perfect, ASCII, Mates with Duxbury Braille System), and
audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
Among other provisions of the Implementing Recommendations of the
9/11 Commission Act of 2007 (9/11 Commission Act), Public Law 110-53,
121 Stat. 266, section 1536 re-enacted the whistleblower provision in
STAA, 49 U.S.C. 31105 (previously referred to as ``Section 405''), with
certain amendments. The regulatory revisions described herein reflect
these statutory changes and also seek to clarify and improve OSHA's
procedures for handling STAA whistleblower claims, as well as to set
forth interpretations of STAA. To the extent possible within the bounds
of applicable statutory language, these revised regulations are
designed to be consistent with the procedures applied to claims under
other whistleblower statutes administered by OSHA, including Section
211 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5851, the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(AIR21), 49 U.S.C. 42121, and Title VIII of the Sarbanes-Oxley Act of
2002 (SOX), 18 U.S.C. 1514A. Responsibility for receiving and
investigating complaints under 49 U.S.C. 31105 has been delegated by
the Secretary of Labor (Secretary) to the Assistant Secretary of Labor
for Occupational Safety and Health (Assistant Secretary). Secretary's
Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on
determinations by the Assistant Secretary are conducted by the Office
of Administrative Law Judges, and appeals from decisions by
administrative law judges (ALJs) are decided by the Department of
Labor's Administrative Review Board (ARB) (Secretary's Order 1-2010),
75 FR 3924-01 (Jan. 25, 2010).
II. Summary of Statutory Changes to STAA Whistleblower Provisions
The 9/11 Commission Act amended 49 U.S.C. 31105, and the related
definitions provision at 49 U.S.C. 31101, by making the changes
described below.
Expansion of Protected Activity
Before passage of the 9/11 Commission Act, STAA protected certain
activities related to commercial motor vehicle safety. The 9/11
Commission Act expanded STAA's coverage to commercial motor vehicle
security. In particular, 49 U.S.C. 31105(a)(1)(A) previously made it
[[Page 44122]]
unlawful for a person to discharge, discipline, or discriminate against
an employee regarding pay, terms, or privileges of employment because
the employee, or another person at the employee's request, filed a
complaint or began a proceeding related to a violation of a commercial
motor vehicle safety regulation, standard or order, or testified or
planned to testify in such a proceeding. The 9/11 Commission Act
expanded this provision to include complaints and proceedings related
to violations of commercial motor vehicle security regulations,
standards, and orders.
Prior to the 2007 amendments, paragraph (a)(1)(B)(i) of STAA's
whistleblower provision prohibited a person from discharging,
disciplining, or discriminating against an employee regarding pay,
terms or privileges of employment for refusing to operate a vehicle in
violation of a regulation, standard, or order related to commercial
motor vehicle safety or health. The statute also protected any employee
who refused to operate a vehicle because he or she had a reasonable
apprehension of serious injury to himself or herself or the public
because of the vehicle's unsafe condition. The recent STAA amendments
expanded these protections to cover: (1) Any employee who refuses to
operate a vehicle in violation of regulations, standards, or orders
related to commercial motor vehicle security; and (2) any employee who
refuses to operate a vehicle because he or she has a reasonable
apprehension of serious injury to himself or herself or the public due
to the vehicle's hazardous security condition.
Before the statutory amendments, paragraph (a)(2) of STAA's
whistleblower provision provided that an employee's apprehension of
serious injury was reasonable only if a reasonable person in the
circumstances then confronting the employee would have concluded that
the ``unsafe condition'' of the vehicle established a real danger of
accident, injury, or serious impairment to health. Moreover, to qualify
for protection under this provision the employee had to have sought
from the employer, and been unable to obtain, correction of the
``unsafe condition.'' The August 2007 amendments replaced the term
``unsafe condition'' with the phrase ``hazardous safety or security
condition'' throughout this paragraph.
The 9/11 Commission Act added a new paragraph to 49 U.S.C.
31105(a)(1)(A)(ii), making it unlawful for a person to discharge,
discipline or discriminate against an employee regarding pay, terms or
privileges of employment because of a perception that the employee has
filed or is about to file a complaint or has begun or is about to bring
a proceeding concerning a violation of a commercial motor vehicle
safety or security regulation, standard, or order. Paragraph (a)(1)(C)
of 49 U.S.C. 31105 is also new and makes it unlawful to discharge,
discipline, or discriminate against an employee regarding pay, terms,
or privileges of employment because the employee accurately reports
hours on duty pursuant to 49 U.S.C. Chapter 315. The recent statutory
amendments also added paragraph (a)(1)(D) to 49 U.S.C. 31105. This
paragraph prohibits discharging, disciplining or discriminating against
an employee regarding pay, terms or privileges of employment because
the employee cooperates, or is perceived as being about to cooperate,
with a safety or security investigation by the Secretary of
Transportation, the Secretary of Homeland Security, or the National
Transportation Safety Board. Finally, the 9/11 Commission Act inserted
paragraph (a)(1)(E) into 49 U.S.C. 31105. This provision prohibits a
person from discharging, disciplining, or discriminating against an
employee regarding pay, terms or privileges of employment because the
employee furnishes, or is perceived as having furnished or being about
to furnish, information to the Secretary of Transportation, the
Secretary of Homeland Security, the National Transportation Safety
Board, or any Federal, State, or local regulatory or law enforcement
agency about the facts concerning any accident or incident resulting in
injury or death to an individual or damage to property occurring in
connection with commercial motor vehicle transportation.
Legal Burdens of Proof for STAA Complaints
Prior to the 9/11 Commission Act, the parties' burdens of proof in
STAA actions were understood to be analogous to those developed for
retaliation claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq. See, e.g., Clean Harbors Envtl. Servs., Inc. v.
Herman, 146 F.3d 12, 21-22 (1st Cir. 1998); Yellow Freight Sys., Inc.
v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). The plaintiff's prima
facie case could be carried by a sufficient showing that (1) he or she
engaged in protected activity; (2) he or she suffered an adverse
action; and (3) a causal connection existed between the two events. Id.
The ARB also required proof that the employer was aware that the
employee had engaged in the protected activity. See, e.g., Baughman v.
J.P. Donmoyer, Inc., No. 05-1505, 2007 WL 3286335, at *3 (ARB Oct. 31,
2007).
Once the complainant made this showing, an inference of retaliation
arose and the burden shifted to the employer to produce evidence of a
legitimate, non-retaliatory reason for the adverse action. Clean
Harbors, 146 F.3d at 21; Yellow Freight, 27 F.3d at 1138. If the
employer met this burden of production, the inference of retaliation
was rebutted and the burden shifted back to the complainant to show by
a preponderance of the evidence that the legitimate reason was a
pretext for unlawful retaliation. Id. Where there was evidence that the
employer acted out of mixed motives, i.e., it acted for both
permissible and impermissible reasons, the employer bore ``the burden
of establishing by a preponderance of the evidence that it would have
taken the adverse employment action in the absence of the employee's
protected activity.'' Clean Harbors, 146 F.3d at 21-22.
The 9/11 Commission Act amended paragraph (b)(1) of 49 U.S.C. 31105
to state that STAA whistleblower complaints will be governed by the
legal burdens of proof set forth in AIR21 at 49 U.S.C. 42121(b). AIR21
contains whistleblower protections for employees in the aviation
industry. Under AIR21, a violation may be found only if the complainant
demonstrates that protected activity was a contributing factor in the
adverse action described in the complaint. 49 U.S.C.
42121(b)(2)(B)(iii). Relief is unavailable if the employer demonstrates
by clear and convincing evidence that it would have taken the same
adverse action in the absence of the protected activity. 49 U.S.C.
42121(b)(2)(B)(iv). See Vieques Air Link, Inc. v. Dep't of Labor, 437
F.3d 102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under
AIR21).
Written Notification of Complaints and Findings
Prior to the 9/11 Commission Act, STAA's whistleblower provision
required the Secretary to notify persons when complaints were filed
against them. The statute has now been amended at paragraph (b)(1) to
clarify that this notice must be in writing. Similarly, the 9/11
Commission Act amended paragraph (b)(2)(A) of 49 U.S.C. 31105 to
clarify that the Secretary's findings must be in writing.
Expansion of Remedies
Paragraph (b)(3)(A) of 49 U.S.C. 31105 previously compelled the
Secretary, upon finding a violation of STAA's
[[Page 44123]]
whistleblower provision, to order the employer to take affirmative
action to abate the violation, reinstate the complainant to his or her
former position with the same pay and terms and privileges of
employment, and pay compensatory damages, including backpay. The 9/11
Commission Act amended paragraph (b)(3)(A)(iii) to reflect existing law
on damages in STAA whistleblower cases and expressly provide for the
award of interest on backpay as well as compensation for any special
damages sustained as a result of the unlawful discrimination, including
litigation costs, expert witness fees, and reasonable attorney fees.
The 2007 amendments also added a new provision to 49 U.S.C. 31105,
paragraph (b)(3)(C), authorizing punitive damage awards of up to
$250,000.
De Novo Review
The August 2007 amendments added paragraph (c) to 49 U.S.C. 31105.
That paragraph provides for de novo review of a STAA whistleblower
claim by a United States district court in the event that the Secretary
has not issued a final decision within 210 days after the filing of a
complaint and the delay is not due to the complainant's bad faith. The
provision provides that the court will have jurisdiction over the
action without regard to the amount in controversy and that the case
will be tried before a jury at the request of either party.
Preemption and Employee Rights
The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at
paragraph (f) clarifying that nothing in the statute preempts or
diminishes any other safeguards against discrimination provided by
Federal or State law. The 2007 amendments to STAA also added a
provision at paragraph (g) in 49 U.S.C. 31105 stating that nothing in
STAA shall be deemed to diminish the rights, privileges, or remedies of
any employee under any Federal or State law or under any collective
bargaining agreement. New paragraph (g) further states that rights and
remedies under 49 U.S.C. 31105 ``may not be waived by any agreement,
policy, form, or condition of employment.''
Miscellaneous Provisions
The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at
paragraph (h) regarding the circumstances in which the Secretary of
Transportation and the Secretary of Homeland Security may disclose the
names of employees who have provided information about certain alleged
violations. In addition, the amendments added a new paragraph (i) to 49
U.S.C. 31105, which provides that the Secretary of Homeland Security
will establish a process by which any person may report motor carrier
vehicle security problems, deficiencies or vulnerabilities. Neither of
these amendments significantly impacts OSHA's handling of whistleblower
complaints under STAA.
Definition of ``Employee''
Definitions applicable to STAA are found at 49 U.S.C. 31101. That
section defines ``employee'' as a driver of a commercial motor vehicle
(including an independent contractor when personally operating a
commercial motor vehicle), a mechanic, a freight handler, or an
individual not an employer, who (i) directly affects commercial motor
vehicle safety in the course of employment by a commercial motor
carrier; and (ii) is not an employee of the Federal, State or local
government acting in the course of employment. The 9/11 Commission Act
incorporated this definition into the whistleblower section of STAA, 49
U.S.C. 31105, at paragraph (j), and expanded it to include employees
who directly affect commercial motor vehicle security in the course of
employment by a commercial motor carrier.
III. Summary of Rulemaking Proceedings
On August 31, 2010, OSHA published in the Federal Register an IFR
implementing statutory changes to STAA enacted into law on August 3,
2007, as part of the 9/11 Commission Act, Public Law 110-53, 121 Stat.
266, as well as making other improvements to Part 1978. 75 FR 53544
(Aug. 31, 2010). In addition to promulgating the IFR, OSHA's notice
included a request for public comment on the interim rules by November
1, 2010. There were no objections to most of the IFR and thus OSHA has
adopted the IFR, except as noted.
In response to the IFR, three organizations--the Government
Accountability Project (GAP), the National Whistleblower Center (NWC),
and the Transportation Trades Department, AFL-CIO (TTD), filed comments
with the agency within the public comment period. OSHA has reviewed and
considered these comments and now adopts this final rule, which has
been revised in part to address problems perceived by the agency and
the commenters.
General Comments
NWC made several comments addressing particular provisions of the
rule. These comments have been addressed, and changes to the regulatory
provisions have been explained in the Summary and Discussion of
Regulatory Provisions (below), where applicable. GAP commented that
``these rules reasonably interpret statutory requirements and in some
instances [will] significantly improve [OSHA] procedures to investigate
whistleblower complaints.'' GAP specifically expressed support for the
following provisions: .103(b), .103(d), .104(c), .104(d), and certain
aspects of .104(f). Finally, TTD expressed its support for the interim
final rules in general, commenting that the ``rules implement improved
procedures for handling whistleblower complaints under [STAA].'' TTD
believes that the changes ``provide important protections for
transportation workers,'' and TTD applauded OSHA for moving forward
with the rulemaking. TTD's comments went on to suggest some changes and
modifications to other interim final rules that were submitted on the
same docket as the STAA interim final rule, namely the Procedures for
the Handling of Retaliation Complaints Under the National Transit
System Security Act and the Federal Railroad Safety Act. Those specific
comments were not relevant to STAA and thus have not been addressed in
the regulatory text.
IV. Summary and Discussion of Regulatory Provisions
The regulatory provisions in this part have been made to reflect
the 9/11 Commission Act's amendments to STAA, to make other
improvements to the procedures for handling STAA whistleblower cases,
to interpret some provisions of STAA, and, to the extent possible
within the bounds of applicable statutory language, to be consistent
with regulations implementing the whistleblower provisions of the
following statutes, among others, that are also administered and
enforced by OSHA: the Safe Drinking Water Act, 42 U.S.C. 300j-9(i); the
Federal Water Pollution Control Act, 33 U.S.C. 1367; the Toxic
Substances Control Act, 15 U.S.C. 2622; the Solid Waste Disposal Act,
42 U.S.C. 6971; the Clean Air Act, 42 U.S.C. 7622; the ERA; the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9610 (all regulations for these statutory provisions
jointly codified at 29 CFR part 24); AIR21, codified at 29 CFR part
1979; SOX, codified at 29 CFR part
[[Page 44124]]
1980; the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129,
codified at 29 CFR part 1981; the National Transit Systems Security
Act, 6 U.S.C. 1142, the Federal Railroad Safety Act, 49 U.S.C. 20109,
codified at 29 CFR part 1982; and the Consumer Product Safety
Improvement Act, 15 U.S.C. 2087, codified at 29 CFR part 1983. The
section numbers of these STAA regulations correspond as closely as
possible with the numbering in the regulations implementing other
whistleblower statutes administered by OSHA.
These regulatory provisions use more appropriate terminology.
First, cases brought under the whistleblower provisions of STAA are
referred to as actions alleging ``retaliation'' rather than
``discrimination.'' This terminology, which has already been used in
the regulations implementing the ERA and the other whistleblower
statutes covered by 29 CFR part 24, is not intended to have substantive
effect. It simply reflects the fact that claims brought under these
whistleblower provisions are prototypical retaliation claims. A
retaliation claim is a specific type of discrimination claim that
focuses on actions taken as a result of an employee's protected
activity rather than as a result of an employee's characteristics
(e.g., race, gender, or religion).
Second, before the issuance of the IFR, the regulations referred to
persons named in STAA whistleblower complaints as ``named persons,''
but in these regulations they are referred to as ``respondents.''
Again, this wording is not intended to have any substantive impact on
the handling of STAA whistleblower cases. This wording simply reflects
a preference for more conventional terminology.
Section 1978.100 Purpose and Scope
This section describes the purpose of the regulations implementing
STAA's whistleblower provision and provides an overview of the
procedures contained in the regulations. Paragraph (a) of this section
includes an updated citation reference to the correct section of the
United States Code where STAA's whistleblower provision is located and
to reflect the recent statutory amendments extending coverage to
activities pertaining to commercial motor vehicle security matters.
Minor editorial revisions made to paragraph (b) of this section in the
IFR are continued here.
The express inclusion of certain provisions in Part 1978 should not
be read to suggest that similar legal principles may not be implied
under other OSHA whistleblower rules. In other words, the canon of
construction expressio unius est exclusio alterius (the expression of
one thing is the exclusion of another) should not be applied in
comparing these rules to other OSHA whistleblower rules. See United
States v. Vonn, 535 U.S. 55, 65 (2002) (canon not applied when contrary
to intent of drafters). For example, the express references to oral and
internal complaints in these rules do not imply that oral and internal
complaints are not protected under other OSHA whistleblower statutes.
Section 1978.101 Definitions
This section includes general definitions applicable to STAA's
whistleblower provision. The definitions are organized in alphabetical
order and minor edits made to clarify regulatory text in the IFR are
adopted here.
A definition of ``business days'' in paragraph (c) clarifies that
the term means days other than Saturdays, Sundays, and Federal
holidays. This definition is consistent with 29 CFR 1903.22(c), an OSHA
regulation interpreting the analogous term ``working days'' in section
10 of the Occupational Safety and Health Act of 1970 (OSH Act), 29
U.S.C. 659, in the same way.
The regulations in effect before the IFR defined ``commercial motor
carrier'' as a person who satisfied the definitions of ``motor
carrier'' and ``motor private carrier'' in 49 U.S.C. 10102(13) and
10102(16). The IFR replaced that definition with: ``Commercial motor
carrier means any person engaged in a business affecting commerce
between States or between a State and a place outside thereof who owns
or leases a commercial motor vehicle in connection with that business,
or assigns employees to operate such a vehicle.'' This definition of
``commercial motor carrier'' reflects the Secretary's longstanding
practice of giving that phrase expansive meaning, i.e., including
within its reach all motor carriers in or affecting commerce. See,
e.g., Arnold v. Associated Sand and Gravel Co., ALJ No. 92-STA-19, 1992
WL 752791, at *3 (Sec'y Aug. 31, 1992) (appropriate to give the term
``commercial'' its legal meaning; ``legislative history of the STAA * *
* additionally militates in favor of construing the term expansively to
describe motor carriers `in' or `affecting' commerce''). In addition,
this definition of ``commercial motor carrier'' is more consistent with
the statutory definition of ``employer.'' See 49 U.S.C. 31101(3). The
definition in the IFR has been adopted here.
The statutory definition of ``commercial motor vehicle'' in
paragraph (e) included in the IFR has been revised in the final rule.
Rather than reiterate the statutory definition, the final rule simply
refers to the definition of this term as provided in the statute, 49
U.S.C. 31101(1). This change is intended to ensure that the regulation
refers to the appropriate statutory definition, should it be amended in
the future. The definition of ``employee'' reflects the statutory
amendment expanding coverage to individuals whose work directly affects
commercial motor vehicle security. In addition, the statutory
definitions of ``employer'' and ``State'' are in this section at
paragraphs (i) and (n) respectively, and a paragraph at the end of this
section clarifies that any future statutory amendments will govern in
lieu of the definitions contained in section 1978.101. A definition of
``complaint'' in paragraph (g) clarifies the scope of activities
protected by STAA's whistleblower provisions. See discussion of section
1978.102 (Obligations and prohibited acts) below.
The definition of ``complainant'' in paragraph (f) in the IFR has
been changed slightly. The word ``whistleblower'' has been deleted
because it is unnecessary.
A sentence has been added to the definition of ``employee'' in
section 1978.101(h) to include former employees and applicants. Such
language is included in the definition of ``employee'' in other OSHA
whistleblower rules, such as those under the National Transit Systems
Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)),
SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This
interpretation is consistent with the Supreme Court's interpretation of
the term ``employee'' in 42 U.S. C. 2000e-3a, the anti-retaliation
provision of Title VII of the Civil Rights Act of 1964, to include
former employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among
the Court's reasons for this interpretation were the lack of temporal
modifiers for the term ``employee''; the reinstatement remedy, which
only applies to former employees; and the remedial purpose of
preventing workers from being deterred from whistleblowing because of a
fear of blacklisting. These reasons apply equally to the anti-
retaliation provision of STAA and the other whistleblower provisions
enforced by OSHA.
The definition of ``person'' in paragraph (k) is basically the same
as the one in the IFR except for the
[[Page 44125]]
addition of ``organized'' before the word ``group.'' The definition
reflects the statutory definition of ``person'' for the STAA
whistleblower provision in 49 App. U.S.C. 2301(4) that existed before
the 1994 codification of Title 49 of the United States Code, dealing
with transportation. See Public Law 103-272, 108 Stat. 984. The
provision at 49 App. U.S.C. 2301(4) stated: `` `person' means one or
more individuals, partnerships, associations, corporations, business
trusts, or any other organized group of individuals.'' The definition
of ``person'' was deleted from the codification because it was regarded
as unnecessary due to the Dictionary Act's definition of ``person'' in
1 U.S.C. 1, which states that the term ``includes'' entities, such as
individuals and corporations, which for the most part are the same as
the entities listed in the definition in this rule. See note after 49
U.S.C. 31101. Changes in codifications are not intended to make
substantive changes in a statute unless the congressional intent to do
so is clear. Muniz v. Hoffman, 422 U.S. 454, 472 n.11 (1975); Carbo v.
United States, 364 U.S. 611, 618-19 (1961). The congressional intent
to rely on the definition of ``person'' in 1 U.S.C. 1 does not indicate
an intent to change the definition. Practically all of the entities
listed in 49 App. U.S.C. 2314 are the same as the ones specifically
listed in 1 U.S.C. 1. Some of the entities are different, but the
Dictionary Act definition, using the word ``includes,'' is not an
exclusive list. Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95,
100 (1941) (``* * * term `including' is not one of all-embracing
definition, but connotes simply an illustrative application of the
general principle.''). Furthermore, because the term ``person''
includes an individual and it is a ``person'' who is prohibited from
engaging in the retaliation described in 49 U.S.C. 31105, a corporate
officer or other individual responsible for the retaliation is
individually liable under the STAA whistleblower provision. Smith v.
Lake City Enterprises, Inc., Crystle Morgan, and Donald Morgan, Nos.
09-033, 08-091, 2010 WL 3910346, at *6 (ARB Sept. 24, 2010) (corporate
president and sole shareholder individually liable under STAA), citing
Wilson v. Bolin Assocs., Inc., ALJ No. 1991-STA-004 (Sec'y Dec. 30,
1991). Section 1978.102 has been corrected to reflect the fact that the
statute imposes obligations on ``person[s].''
Section 1978.102 Obligations and Prohibited Acts
This section describes the activities that are protected under STAA
and the conduct that is prohibited in response to any protected
activities. Insertion of this section in the IFR resulted in the
renumbering of many subsequent sections; that renumbering is continued
in the final rule. The discussion below highlights some significant
interpretations of STAA in these provisions, but it is by no means
exhaustive.
Among other prohibited acts, it is unlawful under STAA for a person
to retaliate against an employee because the employee, or someone
acting pursuant to the employee's request, has filed a complaint
related to a violation of a commercial motor vehicle safety or security
regulation, standard or order. 49 U.S.C. 31105(a)(1)(A)(i). STAA's
whistleblower provision also prohibits a person from retaliating
against an employee because the person perceives that the employee has
filed or was about to file such a complaint. 49 U.S.C.
31105(a)(1)(A)(ii).
The Secretary has long taken the position that these provisions of
STAA, as well as similarly worded provisions in other whistleblower
statutes enforced by OSHA, cover both written and oral complaints to
the employer or a government agency. The U.S. Supreme Court held that
an analogous whistleblower provision in the Fair Labor Standards Act
(FLSA), 29 U.S.C. 215(a)(3), protects oral as well as written
complaints. Kasten v. Saint-Gobain Performance Plastics Corp., 131
S.Ct. 1325, 1329 (2011). Among other things, the FLSA forbids employers
from discriminating against any employee ``because such employee has
filed any complaint.'' Although the Court examined ``filed any
complaint'' in the FLSA, the decision is applicable to analogous
language in STAA, as well as in other OSHA whistleblower statutes. See
Northcross v. Board of Education of the Memphis City Schools, 412 U.S.
427, 427-28 (1973) (statutes in pari materia should be construed
similarly). Specifically, Congress's intent in passing the
whistleblower provision of STAA was to encourage employee reporting of
noncompliance with safety regulations. Brock v. Roadway Exp., Inc., 481
U.S. 252, 258 (1987). As with the FLSA, those employees who are in the
best position to report complaints under this provision may find it
difficult or impractical to reduce a complaint to writing. It is
particularly important for STAA to cover oral as well as written
complaints because in many cases truck drivers are out on the road and
the only way they can communicate immediate concerns about violations
of safety and security regulations is via CB radio or phone. Requiring
that complaints of safety concerns and violations be in writing would
undermine the basic purpose of the statute. Furthermore, since the
passage of the STAA whistleblower provision, the ARB and federal courts
have consistently held that protected activity under STAA includes
oral, informal, and unofficial complaints about violations of
commercial motor vehicle regulations. See, e.g., Harrison v. Roadway
Express, Inc., No. 00-048, 2002 WL 31932546, at *4 (ARB Dec. 31, 2002)
(``[C]omplaints about violations of commercial motor vehicle
regulations may be oral, informal or unofficial.''), aff'd on other
grounds, 390 F.3d 752 (2d Cir. 2004); see also, e.g., Calhoun v. Dep't
of Labor, 576 F.3d 201, 212 (4th Cir. 2009) (citing Yellow Freight
Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993)) for the
proposition that ``written or oral'' complaints can be protected under
STAA). Cf. Power City Elec., Inc., No. C-77-197, 1979 WL 23049, at *2
(E.D. Wash. Oct. 23, 1979) (noting that the term ``filed'', as used in
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), ``is not limited to a written form of complaint.''). As the
Court noted in Kasten, long-standing interpretations suggest that such
views are ``reasonable'' and ``consistent with the Act.'' Kasten, 131
S.Ct. at 1335. For these reasons, sections 1978.102(b)(1) and
1978.102(e)(1) cover the filing of written and oral complaints with
employers or government agencies, and the definition of the term
``complaint,'' reflecting this intent, in the IFR in section 1978.101
is reiterated here. Similarly, the words ``orally or in writing'' have
been added after the words ``filed'' and ``file'' in sections
1978.102(b)(1) and .102(e)(2) to clarify that the protected activity
includes oral as well as written communication.
Sections 1978.102(b)(1) and 1978.102(e)(2) clarify the long-
standing position of the Secretary, supported by the courts of appeals,
that under STAA and other OSHA whistleblower statutes the filing of a
complaint is protected, whether the complaint is filed with an
employer, a government agency, or others. Similarly, the definition of
``complaint'' in section 1978.101(g) states that the term includes
complaints to employers, government agencies, and others. See 29 CFR
1977.9(c) (section 11(c) of the OSH Act protects complaints to an
employer); McKoy v. North Fork Services Joint Venture, No. 04-176, 2007
WL 1266925, at *3 (ARB Apr. 30, 2007) (complaining to employer about
violations of environmental statutes is protected activity). STAA does
not specify the
[[Page 44126]]
entities to whom a complaint may be filed in order to be protected. The
preamble to the interim final rule noted: ``The Secretary has long
taken the position that these provisions of STAA, as well as similarly
worded provisions in other whistleblower statutes enforced by OSHA,
cover both written and oral complaints to the employer or a government
agency.'' 75 FR 53544, 53547 (Aug. 31, 2010) (emphasis added). In
particular, the Secretary has ruled that complaints to an employer are
protected under STAA in order to promote the statute's goal of highway
safety. Israel v. Branrich, Inc., No. 09-069, 2011 WL 5023051, at *4
(ARB Sept. 29. 2011); Davis v. H.R. Hill, Inc., ALJ No.1986-STA-018
(Sec'y Mar. 19, 1987). This interpretation has been adopted by courts
of appeals. Calhoun v. Dep't of Labor, 576 F.3d 201, 212 (4th Cir.
2009); Clean Harbors Envt'l Services, Inc. v. Herman, 146 F.3d 12, 19-
21 (1st Cir. 1998). Cf. Minor v. Bostwick Laboratories, Inc., 669 F.3d
428 (4th Cir. 2012) (analogous anti-retaliation provision of Fair Labor
Standards Act protects complaints to an employer).
In describing the conduct that is prohibited under STAA, the final
rule adds the words ``harass, suspend, demote'' to paragraphs (b), (c),
and (e) to make this rule more consistent with other OSHA whistleblower
rules.
Section 1978.103 Filing of Retaliation Complaints
This section (formerly section 1978.102) was revised in the IFR to
make it more consistent with the regulatory procedures for other OSHA-
administered whistleblower laws; that revision is adopted here with
minor editorial corrections.
Complaints filed under STAA's whistleblower provision need not be
in any particular form. Complainants have always been permitted to file
STAA whistleblower complaints either orally or in writing. In light of
this longstanding practice, OSHA will continue to accept STAA
whistleblower complaints in either oral or written form. Allowing STAA
whistleblower complaints to be filed orally is also consistent with
OSHA's practice under other OSHA whistleblower laws. Language has been
added to paragraph (b) to clarify that when a complaint is made orally,
OSHA will reduce the complaint to writing. In addition, paragraph (b)
provides that if an employee is not able to file a complaint in
English, OSHA will accept the complaint in any other language.
Language in paragraph (c) of the IFR providing that the complaint
should be filed with the ``* * * OSHA Area Director responsible for
enforcement activities in the geographical area where the employee
resides or was employed * * *'' has been changed. ``Area Director'' has
been changed to ``office'' in recognition of the possibility that
organizational changes may take place.
Language in paragraph (d) clarifies the date on which a complaint
will be considered ``filed,'' i.e., the date of postmark, facsimile
transmittal, electronic communication transmittal, telephone call,
hand-delivery, delivery to a third-party commercial carrier, or in-
person filing at an OSHA office. To be timely, a complaint must be
filed within 180 days of the occurrence of the alleged violation. Under
Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), this is
considered to be when the retaliatory decision has been both made and
communicated to the complainant. In other words, the limitations period
commences once the employee is aware or reasonably should be aware of
the employer's decision. Equal Emp't Opportunity Comm'n v. United
Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001).
Provisions dealing with tolling of the 180-day period for the
filing of STAA whistleblower complaints were deleted in the IFR for
consistency with other OSHA whistleblower regulations, which do not
contain this language; the final rule makes no changes in this regard.
This revision is not intended to change the way OSHA handles untimely
complaints under any whistleblower laws. A sentence in the regulatory
text clarifies that filing deadlines may still be tolled based on
principles developed in applicable case law. See, e.g., Donovan v.
Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir.
1984).
Finally, paragraph (e), ``Relationship to Section 11(c)
complaints,'' conforms to similar provisions implementing other OSHA
whistleblower programs and more clearly describes the relationship
between Section 11(c) complaints and STAA whistleblower complaints.
Section 11(c) of the OSH Act generally prohibits employers from
retaliating against employees for filing safety or health complaints or
otherwise initiating or participating in proceedings under the OSH Act.
In some circumstances an employee covered by STAA may engage in
activities that are protected under STAA and Section 11(c) of the OSH
Act. For example, a freight handler loading cargo onto a commercial
motor vehicle may complain about both the overloading of that vehicle
(a safety complaint protected by STAA) and also about an unsafe
forklift (a safety complaint covered by the OSH Act). In practice, OSHA
would investigate whether either or both of these protected activities
caused the firing. Paragraph (e) now clarifies that STAA whistleblower
complaints that also allege facts constituting an 11(c) violation will
be deemed to have been filed under both statutes. Similarly, Section
11(c) complaints that allege facts constituting a violation of STAA's
whistleblower provision will also be deemed to have been filed under
both laws. In these cases, normal procedures and timeliness
requirements under the respective statutes and regulations will be
followed.
OSHA notes that a complaint of retaliation filed with OSHA under
STAA is not a formal document and need not conform to the pleading
standards for complaints filed in federal district court articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB
Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding
whistleblower complaints filed with OSHA under analogous provisions in
the Sarbanes-Oxley Act need not conform to federal court pleading
standards). Rather, the complaint filed with OSHA under this section
simply alerts the agency to the existence of the alleged retaliation
and the complainant's desire that the agency investigate the complaint.
Upon the filing of a complaint with OSHA, the Assistant Secretary is to
determine whether ``the complaint, supplemented as appropriate by
interviews of the complainant'' alleges ``the existence of facts and
evidence to make a prima facie showing.'' 29 CFR 1978.104(e). As
explained in section 1978.104(e), if the complaint, supplemented as
appropriate, contains a prima facie allegation, and the respondent does
not show clear and convincing evidence that it would have taken the
same action in the absence of the alleged protected activity, OSHA
conducts an investigation to determine whether there is reasonable
cause to believe that retaliation has occurred. See 49 U.S.C.
42121(b)(2), 29 CFR 1978.104(e).
Section 1978.104 Investigation
This section (formerly section 1978.103) more closely conforms to
the regulations implementing other whistleblower provisions
administered by OSHA. Former paragraph (f) in section 1978.102, which
deals with the notice sent to employers when complaints are filed
against them, is in paragraph (a) in section 1978.104, where
[[Page 44127]]
it more appropriately appears under the ``Investigation'' heading. In
addition, OSHA here adopts minor revisions made to that paragraph in
the IFR to be more consistent with similar provisions in other OSHA
whistleblower regulations. Of particular note, OSHA adopts language in
the IFR which was added requiring OSHA to send the Federal Motor
Carrier Safety Administration (FMCSA) a copy of the notice that goes to
the employer. This has been standard practice in any event. Minor
editorial changes to the language of the IFR have been made.
Former section 1978.103(a), which simply stated that OSHA would
investigate and gather data as it deemed appropriate, was deleted in
the IFR as unnecessary; that deletion remains. The language in
paragraph (a) of the IFR relating to the provision of information to
respondent's counsel has been deleted because when the respondent is
first notified about the complaint the respondent is usually not
represented by counsel. Paragraph (b) conforms to other OSHA
whistleblower regulations. Language describing the persons who can be
present and the issues that can be addressed at OSHA's meetings with
respondents was deleted in the IFR and is not present in the final
rule, but this deletion is not substantive.
Paragraph (c) specifies that throughout the investigation the
agency will provide to the complainant (or the complainant's legal
counsel, if the complainant is represented by counsel) a copy of all of
respondent's submissions to the agency that are responsive to the
complainant's whistleblower complaint. Before providing such materials
to the complainant, the agency will redact them, if necessary, in
accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The phrase ``if necessary'' has been
added because not all of respondent's submissions will contain
confidential information. Paragraph (d) addresses confidentiality in
investigations. Minor editorial changes have been made.
Paragraph (e) reflects the incorporation of the AIR21 burdens of
proof provision by the second sentence of 49 U.S.C. 31105(b)(1), which
was added by the 9/11 Commission Act. This paragraph generally conforms
to similar provisions in the regulations implementing the AIR21 and ERA
whistleblower laws. All of these statutes now require that a
complainant make an initial prima facie showing that protected activity
was ``a contributing factor'' in the adverse action alleged in the
complaint, i.e., that the protected activity, alone or in combination
with other factors, affected in some way the outcome of the employer's
decision. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 4343278, at
*3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09-114, 2011 WL
2614326, at *3 (ARB June 29, 2011). 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 showing. Complainant's burden may be
satisfied, for example, if he or she shows that the adverse action took
place shortly after protected activity, giving rise to the inference
that it was a contributing factor in the adverse action. Language from
some of OSHA's other whistleblower regulations, including those
implementing AIR21 and ERA, setting forth specific elements of the
complainant's prima facie case, has been carried over into these
regulations.
The revised STAA provision specifically bans retaliation against
employees because of their perceived protected activity. This provision
clarifies existing whistleblower law. See Reich v. Hoy Shoe Co., 32
F.3d 361, 368 (8th Cir. 1994) (``Construing Sec. 11(c), the OSH Act's
anti-retaliation provision, to protect employees from adverse
employment actions because they are suspected of having engaged in
protected activity is consistent with * * * the specific purposes of
the anti-retaliation provisions.''). However, the references in this
section to perceived protected activity have been deleted here because
the concept is covered by the language of paragraph (e)(2)(ii) on
suspected protected activity. Also, the final rule adds language
clarifying that the revised STAA provision protects not only actual
protected activity but also activity about to be undertaken.
If the complainant does not make the required prima facie showing,
the investigation must be discontinued and the complaint dismissed. See
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999)
(noting that the burden-shifting framework of the ERA, which is the
same framework now found in the AIR21 law and STAA, served a
``gatekeeping function'' that ``stemm[ed] frivolous complaints''). Even
in cases where the complainant successfully makes 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 adverse action in the absence of the protected activity.
Cf. Ferguson, supra (analogous burden shift in litigation); Clarke,
supra (same). Thus, OSHA must dismiss a complaint under STAA and not
investigate (or cease investigating) if either: (1) The complainant
fails to meet the prima facie showing that protected activity or the
perception of protected activity was a contributing factor in the
adverse action; or (2) the employer rebuts that showing by clear and
convincing evidence that it would have taken the same adverse action
absent the protected activity or the perception thereof. The final rule
makes other minor editorial corrections.
Former section 1978.103(c) was moved to paragraph (f) of this
section in the IFR; that change remains. In the IFR minor revisions
were made to this paragraph to conform to similar paragraphs in the
regulations implementing the AIR21 and SOX whistleblower provisions;
those changes remain. The provision allows 10 business days (rather
than 5 days) for the respondent to present evidence in support of its
position against an order of preliminary reinstatement. Paragraph (f)
of this section has been revised to provide complainants with copies of
the same materials provided to respondents under this paragraph, except
to the extent that confidentiality laws require redaction.
NWC and GAP commented on the provisions in section 1978.104. NWC
noted that to conduct a full and fair investigation, OSHA needs to
obtain the available, responsive information from both parties. If one
party does not have the information submitted by the other, NWC
explained, that party cannot help the investigation by providing
available information to shed light on the matter. NWC also suggested
that the phrase ``other applicable confidentiality laws'' be replaced
with more specific language describing the confidentiality laws that
might apply to a respondent's answer.
GAP commented that while it was pleased with the provisions in
section 1978.104 providing copies of respondent's submissions to
complainants and protecting witness confidentiality, it was concerned
that the procedures under section 1978.104(f) ``disenfranchise[d] the
victim, giving only one side of the dispute the chance to participate
in the most significant step of the process'' and that ``[a]t a
minimum, this procedural favoritism means there will not be an even
playing field in the administrative hearing.'' GAP advocated removing
section 1978.104(f).
OSHA agrees with NWC and GAP that the input of both parties in the
investigation is important to ensuring
[[Page 44128]]
that OSHA reaches the proper outcome during its investigation. To that
end, in response to the comments, the procedures under STAA have been
revised to contain the following safeguards aimed at ensuring that
complainants and respondents have equal access to information during
the course of the OSHA investigation:
Section 1978.104(c) provides that, throughout the
investigation, the agency will provide the complainant (or the
complainant's legal counsel if the complainant is represented by
counsel) a copy of all of respondent's submissions to the agency that
are responsive to the complainant's whistleblower complaint, with
confidential information redacted as necessary, and the complainant
will have an opportunity to respond to such submissions; and
Section 1978.104(f) provides that the complainant will
receive a copy of the materials that must be provided to the respondent
under that paragraph, with confidential information redacted as
necessary.
Regarding NWC's suggestion that OSHA provide more specific
information about the confidentiality laws that may protect portions of
the information submitted by a respondent, OSHA anticipates that the
vast majority of respondent submissions will not be subject to any
confidentiality laws. However, in addition to the Privacy Act, a
variety of confidentiality provisions may protect information submitted
during the course of an investigation. For example, a respondent may
submit confidential business information, the disclosure of which would
violate the Trade Secrets Act, 18 U.S.C. 1905. While the agency
recognizes that a respondent must meet a high standard to show that the
information it submits is protected and that it has a responsibility to
independently evaluate claims that submissions contain confidential
business information not subject to disclosure, it believes that the
provision as drafted appropriately allows it to address legitimate
claims of confidentiality.
With regard to GAP's comment that section 1978.104(f) should be
removed, OSHA notes the purpose of 1978.104(f) is to ensure compliance
with the Due Process Clause of the Fifth Amendment, as interpreted in
the Supreme Court's ruling in Brock v. Roadway Express, Inc., 481 U.S.
252, 264 (1987), requiring OSHA to give the respondent the opportunity
to review the substance of the evidence and respond, prior to ordering
preliminary reinstatement.
Nonetheless, while recognizing that the purpose of section
1978.104(f) is to ensure that the respondents have been afforded due
process prior to OSHA ordering preliminary reinstatement, OSHA
appreciates that complainants wish to stay informed regarding their
cases and may continue to have valuable input, even at this late stage
in the investigation. Thus, under these rules, OSHA will provide
complainants with a copy of the materials sent to the respondent under
section 1978.104(f), with materials redacted in accordance with
confidentiality laws.
Section 1978.105 Issuance of Findings and Preliminary Orders
Paragraph (a) in section 1978.104, as it existed before the IFR,
now at paragraph (a) in this section, was updated in the IFR to reflect
the recent amendments to STAA expanding available remedies; the final
rule adopts those revisions. Minor editorial corrections have been made
in the final rule. If the Assistant Secretary concludes that there is
reasonable cause to believe that a violation has occurred, he or she
will order appropriate relief. Such order will include, where
appropriate: a requirement that the respondent take affirmative action
to abate the violation; reinstatement of the complainant to his or her
former position with the same compensation, terms, conditions and
privileges of the complainant's employment; payment of compensatory
damages (backpay with interest and compensation for any special damages
sustained as a result of the retaliation, including any litigation
costs, expert witness fees, and reasonable attorney fees which the
complainant has incurred); and payment of punitive damages up to
$250,000. The final rule adds the words ``take affirmative action'' in
connection with abatement of the violation because the statute uses
this important term of labor law, found in the National Labor Relations
Act at 29 U.S.C. 160(c) and Title VII of the Civil Rights Act of 1964,
as amended, at 42 U.S.C. 2000e-5(g)(1). The word ``same'' has been
inserted before ``compensation'' because this language is in the
statute. A minor wording change, the deletion of the word ``together'',
has been made in the final rule. The discussion of punitive damages has
been put in a separate sentence to track the statute.
In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he or she received prior to his or her termination, but not
actually return to work. Smith, supra, at *8 (front pay under STAA).
Such front pay or economic reinstatement is also employed in cases
arising under Section 105(c) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 815(c)(2). See, e.g., Secretary of Labor ex rel.
York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ
June 26, 2001). Congress intended that complainants be preliminarily
reinstated to their positions if OSHA finds reasonable cause that they
were discharged in violation of STAA's whistleblower provision. When a
violation is found, the norm is for OSHA to order immediate,
preliminary reinstatement. Neither an employer nor an employee has a
statutory right to choose economic reinstatement. Rather, economic
reinstatement is designed to accommodate situations in which evidence
establishes to OSHA's satisfaction that reinstatement is inadvisable
for some reason, notwithstanding the employer's retaliatory discharge
of the complainant. In such situations, actual reinstatement might be
delayed until after the administrative adjudication is completed as
long as the complainant continues to receive his or her pay and
benefits and is not otherwise disadvantaged by a delay in
reinstatement. There is no statutory basis for allowing the employer to
recover the costs of economically reinstating a complainant should the
employer ultimately prevail in the whistleblower litigation.
In ordering interest on backpay, the agency has determined that,
instead of computing the interest due by compounding quarterly the
Internal Revenue Service interest rate for the underpayment of taxes,
which under 26 U.S.C. 6621 is generally the Federal short-term rate
plus three percentage points, interest will be compounded daily. The
Secretary believes that daily compounding of interest better achieves
the make-whole purpose of a backpay award. Daily compounding of
interest has become the norm in private lending and recently was found
to be the most appropriate method of calculating interest on backpay by
the National Labor Relations Board. See Jackson Hosp. Corp. v. United
Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv.
Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (2010).
Additionally, interest on tax underpayments under the Internal Revenue
Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C.
6622(a).
Paragraph (a)(2) of this section requires the Assistant Secretary
to notify the parties if he or she finds that a violation has not
occurred. Former section 1978.104(c), which provided for
[[Page 44129]]
the suspension of 11(c) complaints pending the outcome of STAA
proceedings, was deleted in the IFR; the final rule adopts that
revision. As described above, section 1978.103(e) adequately describes
the relationship between STAA and 11(c) complaints.
Paragraph (b) clarifies that OSHA need not send the original
complaint to the Chief Administrative Law Judge when it issues its
findings and preliminary order; a copy of the complaint will suffice.
Former section 1978.105(b)(1) was moved to section 1978.105(c) in the
IFR; the final rule adopts that revision. This paragraph states that
the Assistant Secretary's preliminary order will be effective 30 days
after receipt, or on the compliance date set forth in the preliminary
order, whichever is later, unless an objection is filed. It also
clarifies that any preliminary order requiring reinstatement will be
effective immediately. This paragraph mirrors existing provisions in
other OSHA whistleblower regulations. Minor editorial changes have been
made in the final rule.
Subpart B--Litigation
Section 1978.106 Objections to the Findings and the Preliminary Order
and Request for a Hearing
Minor revisions were made to paragraph (a), formerly section
1978.105(a), in the IFR to conform to other OSHA whistleblower
regulations; the final rule adopts those revisions. Other minor
revisions have been made in the final rule. The paragraph clarifies
that with respect to objections to the findings and preliminary order,
the date of the postmark, fax, or electronic communication transmittal
is considered the date of the filing; if the objection is filed in
person, by hand-delivery, or other means, the objection is filed upon
receipt. The filing of objections is also considered a request for a
hearing before an ALJ. The amended language also clarifies that in
addition to filing objections with the Chief Administrative Law Judge,
the parties must serve a copy of their objections on the other parties
of record and the OSHA official who issued the findings and order. The
requirement in the IFR that objections be served on the Assistant
Secretary and the Associate Solicitor for Occupational Safety and
Health has been deleted because such service is unnecessary. A failure
to serve copies of the objections on the appropriate parties does not
affect the ALJ's jurisdiction to hear and decide the merits of the
case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-
101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).
The title to former section 1978.105(b) was deleted in the IFR
because it was unnecessary; the final rule adopts that revision. In
addition, as previously mentioned, former paragraph (b)(1) in section
1978.105 was moved to new paragraph (c) in section 1978.105; the final
rule adopts that revision. Finally, some minor, non-substantive
revisions were made in the IFR to former 1978.105(b)(2), now at
1978.106(b), and additional language was added to that paragraph to
clarify that all provisions of the ALJ's order, with the exception of
any order for preliminary reinstatement, will be stayed upon the filing
of a timely objection; the final rule adopts those revisions. A
respondent may file a motion to stay OSHA's preliminary reinstatement
order with the Office of Administrative Law Judges. However, such a
motion will be granted only on the basis of exceptional circumstances.
A stay of the Assistant Secretary's preliminary order of reinstatement
would be appropriate only where the respondent can establish the
necessary criteria for a stay, i.e. the respondent would suffer
irreparable injury; the respondent is likely to succeed on the merits;
a balancing of possible harms to the parties favors the respondent; and
the public interest favors a stay.
Section 1978.107 Hearings
Former section 1978.106, which became section 1978.107 in the IFR,
was titled ``Scope of rules; applicability of other rules; notice of
hearing.'' The title was changed to ``Hearings,'' the title assigned to
similar sections in other OSHA whistleblower regulations. The final
rule adopts those revisions. Other minor revisions have been made in
the final rule.
Minor revisions were made to paragraph (a) in the IFR, which
adopted the rules of practice and procedure and the rules of evidence
for administrative hearings before the Office of Administrative Law
Judges, codified at 29 CFR part 18; those revisions have been adopted
here. However, in the final rule the reference to the ALJ rules of
evidence has been deleted. This change is discussed below. Changes were
also made in the IFR to paragraph (b) to conform to other OSHA
whistleblower regulations. The requirements for the ALJ to set a
hearing date within 7 days and to commence a hearing within 30 days
were deleted, and language was added in the IFR to clarify that
hearings will commence expeditiously and be conducted de novo and on
the record. The language in the IFR is not intended to change case-
handling practices. The final rule adopts those revisions.
Paragraph (b) has been modified in the final rule to add language
providing that ALJs have broad discretion to limit discovery in order
to expedite the hearing. This provision furthers an important goal of
STAA--to have unlawfully terminated employees reinstated as quickly as
possible.
Paragraph (c), which deals with situations in which both the
complainant and the respondent object to the findings and/or
preliminary order, was revised in the IFR, consistent with the changes
made to paragraph (b), to remove language stating that hearings shall
commence within 30 days of the last objection received. The final rule
adopts those revisions.
Former paragraph (d), dealing with the ALJ's discretion to order
the filing of prehearing statements, was deleted in the IFR as
unnecessary; the final rule adopts that change.
A new paragraph (d) has been added to this section. It provides
that in ALJ proceedings formal rules of evidence will not apply, but
rules or principles designed to assure production of the most probative
evidence will be applied. Furthermore, the ALJ may exclude evidence
that is immaterial, irrelevant, or unduly repetitious. This evidence
provision differs from the practice under the STAA IFR (section
1978.107(a)) and the original STAA rules (section 1978. 106(a)) to
follow the ALJ rules of evidence in 29 CFR part 1918. The new provision
is consistent with the Administrative Procedure Act, which provides at
5 U.S.C. 556(d): ``* * * Any oral or documentary evidence may be
received, but the agency as a matter of policy shall provide for the
exclusion of irrelevant, immaterial, or unduly repetitious evidence * *
*.'' See also Federal Trade Commission v. Cement Institute, 333 U.S.
683, 705-06 (1948) (administrative agencies not restricted by rigid
rules of evidence). Furthermore, it is inappropriate to apply the
technical rules of evidence in Part 18 because complainants often
appear pro se. Also, hearsay evidence is often appropriate in
whistleblower cases, as there often is no relevant evidence other than
hearsay to prove discriminatory intent. ALJs have the responsibility to
determine the appropriate weight to be given to such evidence. For
these reasons, the interests of determining all of the relevant facts
are best served by not having strict evidentiary rules.
[[Page 44130]]
Section 1978.108 Role of Federal Agencies
Former section 1978.107, titled ``Parties,'' was moved in the IFR
to section 1978.108 with the new title ``Role of Federal agencies.''
The final rule adopts that change. This conforms to the terminology
used in OSHA's other whistleblower regulations.
Former paragraphs (a), (b), and (c) in section 1978.107 were
combined in section 1978.108(a)(1) in the IFR; that revision remains.
The changes which were made to these paragraphs are not intended to be
substantive, i.e., there is no intent to change the rights to party
status currently afforded the Assistant Secretary, complainants, or
respondents. The Assistant Secretary, represented by an attorney from
the appropriate Regional Solicitor's Office, will still generally
assume the role of prosecuting party in STAA whistleblower cases in
which the respondent objects to the findings or preliminary order. This
continues longstanding practice in STAA cases. The public interest
generally requires the Assistant Secretary's continued participation in
such matters. Relatively few private attorneys have developed adequate
expertise in representing STAA whistleblower complainants, and
complainants in the motor carrier industry have been more likely to
proceed pro se than employees covered by OSHA's other whistleblower
programs. Where the complainant, but not the respondent, objects to the
findings or order, the regulations retain the Assistant Secretary's
discretion to participate as a party or amicus curiae at any stage of
the proceedings, including the right to petition for review of an ALJ
decision.
Paragraph (a)(2) clarifies that if the Assistant Secretary assumes
the role of prosecuting party in accordance with paragraph (a)(1), he
or she may, upon written notice to the other parties, withdraw as the
prosecuting party in the exercise of prosecutorial discretion. If the
Assistant Secretary withdraws, the complainant will become the
prosecuting party, and the ALJ will issue appropriate orders to
regulate the course of future proceedings.
Paragraph (a)(3) provides that copies of documents in all cases
must be sent to all parties, or, if represented by counsel, to them. If
the Assistant Secretary is a party, documents shall be sent to the
Regional Solicitor's Office representing the Assistant Secretary. This
is a departure from the IFR, which also required distribution of
documents to the Assistant Secretary and, where he or she was a party,
to the Associate Solicitor for Occupational Safety and Health.
Experience has shown that the additional distribution was not
necessary. In the interest of saving time and resources the
requirements for this additional distribution are being deleted.
Paragraph (b) states that the Federal Motor Carrier Safety
Administration (FMCSA), an agency of the U.S. Department of
Transportation, may participate in the proceedings as amicus curiae at
its own discretion. This paragraph also permits the FMCSA to request
copies of all documents, regardless of whether it is participating in
the case. This provision mirrors similar language in the regulations
implementing other OSHA-administered whistleblower laws.
The provisions formerly at section 1978.108, which described the
manner in which STAA whistleblower cases would be captioned or titled,
were deleted in the IFR. It is unnecessary to continue to include that
material in these regulations.
Section 1978.109 Decisions and Orders of the Administrative Law Judge
This section sets forth the content of the decision and order of
the ALJ, and includes the standards for finding a violation under
STAA's whistleblower provision. Minor editorial revisions have been
made in the final rule. References to the perception of protected
activity have been deleted in the final rule. This concept is
adequately covered by section 1978.104(e)(2)(ii) (employer knowledge
shown by suspicion of protected activity). The title of this section
conforms to the title assigned to similar provisions in other OSHA
whistleblower regulations. Before the issuance of the IFR, section
1978.109 addressed decisions of both the ALJs and the ARB. In
conformance with other OSHA whistleblower regulations, these two topics
were separated by the IFR into individual sections; this separation
remains in the final rule. Section 1978.109 covers only ALJ decisions
and section 1978.110 addresses ARB decisions.
Former paragraph (a) was divided in the IFR among multiple
paragraphs in this section and otherwise revised to reflect the
parties' new burdens of proof and to conform more closely to the
regulations implementing other OSHA-administered whistleblower laws.
Those changes remain in the final rule. In litigation, the statutory
burdens of proof require a complainant to prove that the alleged
protected activity was a ``contributing factor'' in the alleged adverse
action. If the complainant satisfies his or her burden, the employer,
to escape liability, must prove by ``clear and convincing evidence''
that it would have taken the same action in the absence of the
protected activity.
A contributing factor is ``any factor which, alone or in connection
with other factors, tends to affect in any way the outcome of the
decision.'' Clarke, supra, at *3. The complainant (whenever this term
is used in this paragraph, it also refers to the Assistant Secretary)
can succeed by providing either direct or indirect proof of
contribution. Direct evidence is ``smoking gun'' evidence that
conclusively connects the protected activity and the adverse action and
does not rely upon inference. If the complainant does not produce
direct evidence, he or she must proceed indirectly, or inferentially,
by proving by a preponderance of the evidence that a motive prohibited
by STAA was the true reason for the adverse action. One type of
circumstantial evidence is evidence that discredits the respondent's
proffered reasons for the adverse action, demonstrating instead that
they were pretexts for retaliation. Id. Another type of circumstantial
evidence is temporal proximity between the protected activity and the
adverse action. Ferguson, supra, at *2. The respondent may avoid
liability if it ``demonstrates by clear and convincing evidence'' that
it would have taken the same adverse action in any event. Clear and
convincing evidence is evidence indicating that the thing to be proved
is highly probable or reasonably certain. Clarke, supra, at *3. This
burden of proof regimen supersedes the one in effect before the 2007
amendments to STAA. Id. at 7, n.1.
The requirements that the ALJ close the record within 30 days after
the filing of the objection and issue a decision within 30 days after
the close of the record are not in these rules because procedures for
issuing decisions, including their timeliness, are addressed by the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges at 29 CFR 18.57.
Section 1978.109(c), which is similar to provisions in other OSHA
whistleblower regulations, provides that the Assistant Secretary's
determinations about when to proceed with an investigation and when to
dismiss a complaint without completing an investigation are
discretionary decisions not subject to review by the ALJ. The ALJ hears
cases de novo and, therefore, may not remand cases to the Assistant
Secretary to conduct an investigation or
[[Page 44131]]
make further factual findings. If there otherwise is jurisdiction, the
ALJ will hear the case on the merits or dispose of the matter without a
hearing if warranted by the facts and circumstances.
Section 1978.109(d)(1) now describes the relief the ALJ can award
upon finding a violation and reflects the recent statutory amendments
(see earlier discussion of section 1978.105(a)). The language of the
IFR has been slightly modified to clarify the available remedies. The
requirement to take appropriate affirmative action to abate the
violation is separated from the other remedies, as it is in the STAA
remedy provision, 49 U.S.C. 31105(b)(3)(A). Affirmative action to abate
the violation, required by section 31105(b)(3)(A)(i), includes a
variety of measures in addition to others in (3)(A), such as posting
notices about STAA orders and rights, as well as expungement of adverse
comments in a personnel record. Scott v. Roadway Express, Inc., No. 01-
065, 2003 WL 21269144, at *1-2 (ARB May 29, 2003) (posting notices of
STAA orders and rights); Pollock v. Continental Express, Nos. 07-073,
08-051, 2010 WL 1776974, at *9 (ARB Apr. 7, 2010) (expungement of
adverse references). Other minor wording changes have been made. In
addition, paragraph (d)(2) in this section requires the ALJ to issue an
order denying the complaint if he or she determines that the respondent
has not violated STAA.
Before the IFR, ALJs' decisions and orders were subject to
automatic review by the ARB. These procedures were unique to STAA
whistleblower cases and resulted in a heavy STAA caseload for the ARB.
This made it more difficult for the ARB to promptly resolve the cases
on its docket and delayed the resolution of STAA cases in which the
parties were mutually satisfied with the ALJ's decision and order.
Overall, requiring mandatory ARB review of every STAA whistleblower
case is an inefficient use of limited resources. In conformance with
the procedures used for the other whistleblower cases investigated by
OSHA and adjudicated by ALJs, these regulations provide for ARB review
of an ALJ's decision only if one or more of the parties to the case
files a petition requesting such review. These procedures for review of
ALJ decisions apply to all ALJ decisions issued on or after the
effective date of the IFR, August 31, 2010. The final rule adopts these
revisions.
In the IFR, former section 1978.109(b) was deleted, although much
of its content was moved to paragraph (e); the final rule adopts those
revisions. Section 1978.109(e), which borrows language from similar
provisions in other OSHA whistleblower regulations, gives parties 14
days after the date of the ALJ's decision to file a petition for review
with the ARB. If no petition for review is filed within that timeframe,
the ALJ's decision is final and all portions of the order become
effective. Paragraph (e), in addition to giving parties14 days to seek
review before the ARB, clarifies that any orders relating to
reinstatement will be effective immediately upon receipt of the
decision by the respondent.
In the IFR, all of the provisions in former section 1978.109, which
codified the automatic review process, primarily former paragraphs
(c)(1) and (c)(2), were deleted. The content of former paragraph
(c)(3), regarding the standard for ARB review of ALJ decisions, was
moved to new section 1978.110(b). The content of former paragraph
(c)(4), which required the ARB to issue an order denying the complaint
if it determined that the respondent had not violated the law, was
moved to section 1978.110(e). Former paragraph (c)(5), which required
service of the ARB decision on all parties, became a part of section
1978.110(c). The final rule adopts all those revisions.
OSHA has revised the period for filing a timely petition for review
with the ARB to 14 days rather than 10 business days. With this change,
the final rule expresses the time for a petition for review in a way
that is consistent with the other deadlines for filings before the ALJs
and the ARB in the rule, which are also expressed in days rather than
business days. This change also makes the final rule congruent with the
2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure
and Rule 26(a) of the Federal Rules of Appellate Procedure, which
govern computation of time before those tribunals and express filing
deadlines as days rather than business days. Accordingly, the ALJ's
order will become the final order of the Secretary 14 days after the
date of the decision, rather than after 10 business days, unless a
timely petition for review is filed. As a practical matter, this
revision does not substantively alter the window of time for filing a
petition for review before the ALJ's order becomes final.
Section 1978.110 Decisions and Orders of the Administrative Review
Board
This section is borrowed largely from existing regulations
implementing other OSHA whistleblower laws. Minor editorial corrections
have been made in the final rule. In accordance with the decision to
discontinue automatic ARB review of ALJ decisions, paragraph (a) of
this section gives the parties 14 days from the date of the ALJ's
decision to file a petition for review with the ARB. If no timely
petition for review is filed, the decision of the ALJ becomes the final
decision of the Secretary, and is not subject to judicial review.
Paragraph (a) also clarifies that the date of the postmark, fax,
electronic communication transmittal, or hand-delivery will be deemed
the date of filing; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt.
In its comments, NWC suggested that the filing period be extended from
10 business days to 30 days to make this section parallel to the
provision in 1978.105(c), which allows for 30 days within which to file
an objection. OSHA declines to extend the filing period to 30 days
because the 14-day filing period is consistent with the practices and
procedures followed in OSHA's other whistleblower programs.
Furthermore, parties may file a motion for extension of time to appeal
an ALJ's decision, and the ARB has discretion to grant such extensions.
However, as explained above, OSHA has revised the period to petition
for review of an ALJ decision to 14 days rather than 10 business days.
As a practical matter, this revision does not substantively alter the
window of time for filing a petition for review before the ALJ's order
becomes final.
With regard to section 1978.110(a), NWC urged deletion of the
provision that ``[t]he parties should identify in their petitions for
review the legal conclusions or orders to which they object, or the
objections will ordinarily be deemed waived.'' NWC commented that
parties should be allowed to add additional grounds for review in
subsequent briefs and that allowing parties to do so would further the
goal of deciding cases on the merits. OSHA's inclusion of this
provision is not intended to limit the circumstances in which parties
can add additional grounds for review as a case progresses before the
ARB, but rather the rules include this provision to put the public on
notice of the possible consequences of failing to specify the basis of
a petition to the ARB. OSHA recognizes that while the ARB has held in
some instances that an exception not specifically urged may be deemed
waived, the ARB also has found that the rules provide for exceptions to
this general rule. See, e.g., Furland v. American Airlines, Inc., Nos.
09-102, 10-130, 2011 WL 3413364, at *7, n.5 (ARB Jul. 27, 2011),
petition for review
[[Page 44132]]
filed, (11th Cir. Oct. 3, 2011) (No. 11-14419-C) (where a complainant
consistently made an argument throughout the administrative proceedings
the argument was not waived simply because it appeared in the
complainant's reply brief to the ARB rather than in the petition for
review); Avlon v. American Express Co., No. 09-089, 2011 WL 4915756, at
*4-5, n.1 (ARB Sept. 14, 2011) (consideration of an argument not
specifically raised in complainant's petition for review is believed to
be within the authority of the ARB, and parallel provisions in
Sarbanes-Oxley whistleblower regulations do not mandate that the ARB
must limit its review to ALJ conclusions assigned as error in the
petition for review); Brookman v. Levi Strauss, No. 07-074, 2008 WL
7835844, at *5 (ARB Jul. 23, 2008) (concurring with the ALJ's findings
despite Complainant's failure to specifically identify objections and
invoke ARB review). However, recognizing that the interim final rule
may have suggested too stringent a standard, the phrase ``will
ordinarily'' has been replaced with ``may.''
Consistent with the procedures for petitions for review under other
OSHA-administered whistleblower laws, paragraph (b) provides that the
ARB has discretion to accept or reject review in STAA whistleblower
cases. Congress intended these whistleblower cases to be expedited, as
reflected by the recent amendment to STAA providing for a hearing de
novo in district court if the Secretary has not issued a final decision
within 210 days of the filing of the complaint. Making review of STAA
whistleblower cases discretionary may assist in furthering that goal.
The ARB has 30 days to decide whether to grant a petition for
review. If the ARB does not grant the petition, the decision of the ALJ
becomes the final decision of the Secretary. This section further
provides that when the ARB accepts a petition for review, it will
review the ALJ's factual determinations under the substantial evidence
standard, a standard previously set forth in section 1978.109(c)(3)
before the issuance of the IFR. If a timely petition for review is
filed with the ARB, relief ordered by the ALJ is inoperative while the
matter is pending before the ARB, except that orders of reinstatement
will be effective pending review. Paragraph (b) does provide that in
exceptional circumstances the ARB may grant a motion to stay an ALJ's
order of reinstatement. A stay of a reinstatement order is only
appropriate when the respondent can establish the necessary criteria
for a stay, i.e., the respondent will suffer irreparable injury; the
respondent is likely to succeed on the merits; a balancing of possible
harms to the parties favors the respondent; and the public interest
favors a stay.
Paragraph (c), which provides that the ARB will issue a final
decision within 120 days of the conclusion of the ALJ hearing, was
revised to state that the conclusion of the ALJ hearing will be deemed
to be 14 days after the date of the decision of the ALJ, rather than
after 10 business days, unless a motion for reconsideration has been
filed with the ALJ in the interim. Like the revision to section
1978.110(a), explained above, this revision does not substantively
alter the length of time before the ALJ hearing will be deemed to have
been concluded. This paragraph further provides for the ARB's decision
in all cases to be served on all parties, the Chief Administrative Law
Judge, the Assistant Secretary, and the Associate Solicitor for
Occupational Safety and Health.
Paragraph (d) describes the remedies the ARB can award if it
concludes that the respondent has violated STAA's whistleblower
provision (see earlier discussion of section 1978.109(d)(1)). In
addition, under paragraph (e), if the ARB determines that the
respondent has not violated STAA, it will issue an order denying the
complaint. Paragraph (f) clarifies that the procedures for seeking
review before the ARB apply to all cases in which ALJ decisions were
issued on or after the effective date of the IFR, August 31, 2010.
Subpart C--Miscellaneous Provisions.
Section 1978.111 Withdrawal of STAA Complaints, Findings, Objections,
and Petitions for Review; Settlement
This section provides procedures and time periods for the
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, the withdrawal of objections to
findings and/or preliminary orders, and the withdrawal of petitions for
review of ALJ decisions. It also provides for the approval of
settlements at the investigative and adjudicative stages of the case.
Minor editorial changes have been made in the final rule.
Paragraph (a) permits a complainant to withdraw orally or in
writing his or her complaint to the Assistant Secretary, at any time
prior to the filing of objections to the Assistant Secretary's findings
and/or preliminary order. The Assistant Secretary confirms in writing
the complainant's desire to withdraw and will determine whether to
approve the withdrawal. The Assistant Secretary will notify all parties
if the withdrawal is approved. Paragraph (a) clarifies that complaints
that are withdrawn pursuant to settlement agreements prior to the
filing of objections must be approved in accordance with the settlement
approval procedures in paragraph (d). In addition, paragraph (a)
clarifies that the complainant may not withdraw his or her complaint
after the filing of objections to the Assistant Secretary's findings
and/or preliminary order. Paragraph (c) addresses situations in which
parties seek to withdraw either objections to the Assistant Secretary's
findings and/or preliminary order or petitions for review of ALJ
decisions. Paragraph (c) provides that a party may withdraw objections
to the Assistant Secretary's findings and/or preliminary order at any
time before the findings and preliminary order become final by filing a
written withdrawal with the ALJ. Similarly, if a case is on review with
the ARB, a party may withdraw a petition for review of an ALJ's
decision at any time before that decision becomes final by filing a
written withdrawal with the ARB. The ALJ or the ARB, depending on where
the case is pending, will determine whether to approve the withdrawal
of the objections or the petition for review. Paragraph (c) clarifies
that if the ALJ approves a request to withdraw objections to the
Assistant Secretary's findings and/or preliminary order, and there are
no other pending objections, the Assistant Secretary's findings and
preliminary order will become the final order of the Secretary.
Likewise, if the ARB approves a request to withdraw a petition for
review of an ALJ decision, and there are no other pending petitions for
review of that decision, the ALJ's decision will become the final order
of the Secretary. Finally, paragraph (c) provides that if objections or
a petition for review are withdrawn because of settlement, the
settlement must be submitted for approval in accordance with paragraph
(d).
Paragraph (d)(1) states that a case may be settled at the
investigative stage if the Assistant Secretary, the complainant, and
the respondent agree. The Assistant Secretary's approval of a
settlement reached by the respondent and the complainant demonstrates
his or her consent and achieves the consent of all three parties.
Minor, non-substantive changes are being made to paragraph (d)(2).
Paragraph (d)(3) is being deleted because the withdrawal of the
Assistant Secretary as a party as a matter of prosecutorial discretion
is adequately covered by section .107(a)(2). Paragraph (e), borrowing
language from similar
[[Page 44133]]
provisions in other OSHA whistleblower regulations, clarifies that
settlements approved by the Assistant Secretary, the ALJ, or the ARB
will constitute the final order of the Secretary and may be enforced in
federal district court pursuant to 49 U.S.C. 31105(e).
Section 1978.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and, in cases where judicial review is
sought, requires the ARB to submit the record of proceedings to the
appropriate court pursuant to the Federal Rules of Appellate Procedure
and the local rules of such court. Non-substantive revisions to
paragraphs (a), (b), and (c) were made in the IFR and are continued
here. Minor editorial changes from the IFR were made in the final rule.
In the final rule a reference to the transmission of the record to a
court of appeals by an ALJ has been made because parties may file
petitions for review of those decisions in the courts of appeals where
they have previously requested review by the ARB and the ARB has denied
review.
Former section 1978.112, which addressed postponement due to the
pendency of proceedings in other forums, including grievance-
arbitration proceedings under collective bargaining agreements, and
deferral to the outcomes of such proceedings, was deleted in the IFR to
conform to other OSHA whistleblower regulations, which do not contain
similar provisions; that deletion remains. This is a non-substantive
change. Postponement and deferral principles will still be applied in
accordance with case law.
Section 1978.113 Judicial Enforcement
In the IFR, non-substantive revisions were made to this section,
which describes the Secretary's power under STAA's whistleblower
provision to obtain judicial enforcement of orders, including orders
approving settlement agreements; the final rule adopts those revisions.
Minor editorial corrections have been made in the final rule.
Section 1978.114 District Court Jurisdiction of Retaliation Complaints
under STAA
This section deals with the recent amendment to STAA, 49 U.S.C.
31105(c), allowing a complainant in a STAA whistleblower case to bring
an action in district court for de novo review if there has been no
final decision of the Secretary and 210 days have passed since the
filing of the complaint and the delay was not due to the complainant's
bad faith. Section 1978.114 has been drafted to reflect the Secretary's
position that it would not be reasonable to construe the statute to
permit a complainant to initiate an action in federal court after the
Secretary issues a final decision, even if the date of the final
decision is more than 210 days after the filing of the administrative
complaint. In the Secretary's view, the purpose of the ``kick-out''
provision is to aid the complainant in receiving a prompt decision.
That goal is not implicated in a situation where the complainant
already has received a final decision from the Secretary. In addition,
permitting the complainant to file a new case in district court in such
circumstances could conflict with the parties' rights to seek judicial
review of the Secretary's final decision in the court of appeals. The
regulations have been drafted in accordance with this position. Minor
editorial corrections have been made in the final rule.
The IFR did not note that 49 U.S.C. 31105(c) guarantees the right
to a jury trial at the request of either party in these cases. This
rule notes that statutory provision.
In this section, OSHA eliminated the requirement that complainants
provide the agency 15 days advance notice before filing a de novo
complaint in district court. Instead, this section provides that within
seven days after filing a complaint in district court, a complainant
must provide a file-stamped copy of the complaint to the Assistant
Secretary, the ALJ, or the ARB, depending on where the proceeding is
pending. A copy of the complaint also must be provided to the OSHA
official who issued the findings and/or preliminary order, the
Assistant Secretary, and the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor. This
provision is necessary to notify the agency that the complainant has
opted to file a complaint in district court. This provision is not a
substitute for the complainant's compliance with the requirements for
service of process of the district court complaint contained in the
Federal Rules of Civil Procedure and the local rules of the district
court where the complaint is filed. The reference to the OSHA Regional
Administrator in the IFR has been changed in the final rule to a
reference to the OSHA official who issued the findings and/or
preliminary order to reflect the possibility (not currently
contemplated) of future organizational changes.
This change responds to NWC's comment that the 15-day advance
notice requirement for filing a suit in district court should be
eliminated because it inhibits complainants' access to federal courts.
OSHA believes that a provision for notifying the agency of the district
court complaint is necessary to avoid unnecessary expenditure of agency
resources once a complainant has decided to remove the case to federal
district court. OSHA believes that the revised provision adequately
balances the complainant's interest in ready access to federal court
and the agency's interest in receiving prompt notice that the
complainant no longer wishes to continue with the administrative
proceeding.
Section 1978.115 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and three days notice to the parties, waive any rule or issue such
orders as justice or the administration of STAA's whistleblower
provision requires.
In the IFR, OSHA deleted former section 1978.114, which provided
that the time requirements imposed on the Secretary by these
regulations are directory in nature and that a failure to meet those
requirements did not invalidate any action by the Assistant Secretary
or Secretary under STAA; that deletion remains. These principles are
well-established in the case law, see, e.g., Roadway Express v. Dole,
929 F.2d 1060, 1066 (5th Cir. 1991), and this provision, which was
unique to OSHA's STAA regulations, is unnecessary. The deletion of this
provision is a non-substantive amendment. No significant change in STAA
practices or procedures is intended.
V. Paperwork Reduction Act
This rule contains a reporting provision (filing a retaliation
complaint, section 1978.103) which was previously reviewed and approved
for use by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1995, Public Law 104-13,
109 Stat. 163 (1995). The assigned OMB control number is 1218-0236.
VI. Administrative Procedure Act
The notice and comment rulemaking procedures of Section 553 of the
Administrative Procedure Act (``APA'') do not apply to ``interpretive
rules, general statements of policy, or rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). Part 1978 sets forth
interpretive rules and rules of agency procedure and practice within
[[Page 44134]]
the meaning of that section. Therefore, publication in the Federal
Register of a notice of proposed rulemaking and request for comments
was not required. Although part 1978 was not subject to the notice and
comment procedures of the APA, the Assistant Secretary sought and
considered comments to enable the agency to improve the rules by taking
into account the concerns of interested persons.
Furthermore, because this rule is procedural and interpretive
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. The Assistant Secretary also finds good cause to
provide an immediate effective date for this rule. It is in the public
interest that the rule be effective immediately so that parties may
know what procedures are applicable to pending cases. Furthermore, most
of the provisions of this rule were in the IFR and have already been in
effect since August 31, 2010.
VII. Executive Order 12866, Executive Order 13563; Unfunded Mandates
Reform Act of 1995; Executive Order 13132
The agency has concluded that this rule is not a ``significant
regulatory action'' within the meaning of Executive Order 12866,
reaffirmed by Executive Order 13563, because it is not likely to result
in a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Therefore, no regulatory impact analysis has
been prepared.
Because no notice of proposed rulemaking was published, no
statement is required under Section 202 of the Unfunded Mandates Reform
Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural
and interpretive in nature and is thus not expected to have a
significant economic impact. Finally, this rule does not have
``federalism implications.'' The rule does not have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government'' and therefore
is not subject to Executive Order 13132 (Federalism).
VIII. Regulatory Flexibility Analysis
The agency has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation sets forth procedures and interpretations, many of which
were necessitated by statutory amendments enacted by Congress.
Additionally, the regulatory revisions are necessary for the sake of
consistency with the regulatory provisions governing procedures under
other whistleblower statutes administered by OSHA. Furthermore, no
certification to this effect is required and no regulatory flexibility
analysis is required because no proposed rule has been issued.
List of Subjects in 29 CFR Part 1978
Administrative practice and procedure, Employment, Highway safety,
Investigations, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements, Safety, Transportation, Whistleblowing.
Authority and Signature
This document was prepared under the direction and control of
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health.
Signed at Washington, DC, on July 18, 2012.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble part 1978 of
Title 29 of the Code of Federal Regulations is revised to read as
follows:
PART 1978--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SURFACE
TRANSPORTATION ASSISTANCE ACT OF 1982 (STAA), AS AMENDED
Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Obligations and prohibited acts.
1978.103 Filing of retaliation complaints.
1978.104 Investigation.
1978.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1978.106 Objections to the findings and the preliminary order and
request for a hearing.
1978.107 Hearings.
1978.108 Role of Federal agencies.
1978.109 Decisions and orders of the administrative law judge.
1978.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1978.111 Withdrawal of STAA complaints, findings, objections, and
petitions for review; settlement.
1978.112 Judicial review.
1978.113 Judicial enforcement.
1978.114 District court jurisdiction of retaliation complaints under
STAA.
1978.115 Special circumstances; waiver of rules.
Authority: 49 U.S.C. 31101 and 31105; Secretary's Order 1-2012
(Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-
2010 (Jan. 15, 2010), 75 FR 3924 (Jan. 25, 2010).
Subpart A--Complaints, Investigations, Findings, and Preliminary
Orders
Sec. 1978.100 Purpose and scope.
(a) This part sets forth, the procedures for, and interpretations
of, the employee protection (whistleblower) provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, as
amended, which protects employees from retaliation because the employee
has engaged in, or is perceived to have engaged in, protected activity
pertaining to commercial motor vehicle safety, health, or security
matters.
(b) This part establishes procedures under STAA for the expeditious
handling of retaliation complaints filed by employees, or by persons
acting on their behalf. These rules, together with those rules codified
at 29 CFR part 18, set forth the procedures for submission of
complaints, investigations, issuance of findings and preliminary
orders, objections to findings and orders, litigation before
administrative law judges (ALJs), post-hearing administrative review,
and withdrawals and settlements. This part also sets forth
interpretations of STAA.
Sec. 1978.101 Definitions.
(a) Act means the Surface Transportation Assistance Act of 1982
(STAA), as amended.
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
(c) Business days means days other than Saturdays, Sundays, and
Federal holidays.
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(d) Commercial motor carrier means any person engaged in a business
affecting commerce between States or between a State and a place
outside thereof who owns or leases a commercial motor vehicle in
connection with that business, or assigns employees to operate such a
vehicle.
(e) Commercial motor vehicle means a vehicle as defined by 49
U.S.C. 31101(1).
(f) Complainant means the employee who filed a STAA complaint or on
whose behalf a complaint was filed.
(g) Complaint, for purposes of Sec. 1978.102(b)(1) and (e)(1),
includes both written and oral complaints to employers, government
agencies, and others.
(h) Employee means a driver of a commercial motor vehicle
(including an independent contractor when personally operating a
commercial motor vehicle), a mechanic, a freight handler, or an
individual not an employer, who:
(1) Directly affects commercial motor vehicle safety or security in
the course of employment by a commercial motor carrier; and
(2) Is not an employee of the United States Government, a State, or
a political subdivision of a State acting in the course of employment.
(3) The term includes an individual formerly performing the work
described above or an applicant for such work.
(i) Employer means a person engaged in a business affecting
commerce that owns or leases a commercial motor vehicle in connection
with that business, or assigns an employee to operate the vehicle in
commerce, but does not include the Government, a State, or a political
subdivision of a State.
(j) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(k) Person means one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives, or
any other organized group of individuals.
(l) Respondent means the person alleged to have violated 49 U.S.C.
31105.
(m) Secretary means the Secretary of Labor or persons to whom
authority under the Act has been delegated.
(n) State means a State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and
the Northern Mariana Islands.
(o) Any future statutory amendments that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1978.102 Obligations and prohibited acts.
(a) No person may discharge or otherwise retaliate against any
employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the employee engaged in
any of the activities specified in paragraphs (b) or (c) of this
section. In addition, no person may discharge or otherwise retaliate
against any employee with respect to the employee's compensation,
terms, conditions, or privileges of employment because a person acting
pursuant to the employee's request engaged in any of the activities
specified in paragraph (b).
(b) It is a violation for any person to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, harass, suspend,
demote, or in any other manner retaliate against any employee because
the employee or a person acting pursuant to the employee's request has:
(1) Filed orally or in writing a complaint with an employer,
government agency, or others or begun a proceeding related to a
violation of a commercial motor vehicle safety or security regulation,
standard, or order; or
(2) Testified or will testify at any proceeding related to a
violation of a commercial motor vehicle safety or security regulation,
standard, or order.
(c) It is a violation for any person to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, harass, suspend,
demote, or in any other manner retaliate against any employee because
the employee:
(1) Refuses to operate a vehicle because:
(i) The operation violates a regulation, standard, or order of the
United States related to commercial motor vehicle safety, health, or
security; or
(ii) He or she has a reasonable apprehension of serious injury to
himself or herself or the public because of the vehicle's hazardous
safety or security condition;
(2) Accurately reports hours on duty pursuant to Chapter 315 of
Title 49 of the United States Code; or
(3) Cooperates with a safety or security investigation by the
Secretary of Transportation, the Secretary of Homeland Security, or the
National Transportation Safety Board; or
(4) Furnishes information to the Secretary of Transportation, the
Secretary of Homeland Security, the National Transportation Safety
Board, or any Federal, State, or local regulatory or law enforcement
agency as to the facts relating to any accident or incident resulting
in injury or death to an individual or damage to property occurring in
connection with commercial motor vehicle transportation.
(d) No person may discharge or otherwise retaliate against any
employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the person perceives
that the employee has engaged in any of the activities specified in
paragraph (e) of this section.
(e) It is a violation for any person to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, harass, suspend,
demote, or in any other manner retaliate against any employee because
the employer perceives that:
(1) The employee has filed orally or in writing or is about to file
orally or in writing a complaint with an employer, government agency,
or others or has begun or is about to begin a proceeding related to a
violation of a commercial motor vehicle safety or security regulation,
standard or order;
(2) The employee is about to cooperate with a safety or security
investigation by the Secretary of Transportation, the Secretary of
Homeland Security, or the National Transportation Safety Board; or
(3) The employee has furnished or is about to furnish information
to the Secretary of Transportation, the Secretary of Homeland Security,
the National Transportation Safety Board, or any Federal, State, or
local regulatory or law enforcement agency as to the facts relating to
any accident or incident resulting in injury or death to an individual
or damage to property occurring in connection with commercial motor
vehicle transportation.
(f) For purposes of this section, an employee's apprehension of
serious injury is reasonable only if a reasonable individual in the
circumstances then confronting the employee would conclude that the
hazardous safety or security condition establishes a real danger of
accident, injury or serious impairment to health. To qualify for
protection, the employee must have sought from the employer, and been
unable to obtain, correction of the hazardous safety or security
condition.
Sec. 1978.103 Filing of retaliation complaints.
(a) Who may file. An employee who believes that he or she has been
retaliated against by an employer in violation of STAA may file, or
have filed by any person on the employee's behalf, a complaint alleging
such retaliation.
(b) Nature of filing. No particular form of complaint is required.
A complaint may be filed orally or in writing. Oral
[[Page 44136]]
complaints will be reduced to writing by OSHA. If the complainant is
unable to file a complaint in English, OSHA will accept the complaint
in any other language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the employee resides or was employed, but may be filed with any
OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days after an alleged violation of
STAA occurs, any employee who believes that he or she has been
retaliated against in violation of STAA may file, or have filed by any
person on the employee's behalf, a complaint alleging such retaliation.
The date of the postmark, facsimile transmittal, electronic
communication transmittal, telephone call, hand-delivery, delivery to a
third-party commercial carrier, or in-person filing at an OSHA office
will be considered the date of filing. The time for filing a complaint
may be tolled for reasons warranted by applicable case law.
(e) Relationship to section 11(c) complaints. A complaint filed
under STAA alleging facts that would also constitute a violation of
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), will be deemed to be a complaint under both STAA and section
11(c). Similarly, a complaint filed under section 11(c) that alleges
facts that would also constitute a violation of STAA will be deemed to
be a complaint filed under both STAA and section 11(c). Normal
procedures and timeliness requirements under the respective statutes
and regulations will be followed.
Sec. 1978.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the respondent of the filing of the
complaint by providing the respondent with a copy of the complaint,
redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a and
other applicable confidentiality laws. The Assistant Secretary will
also notify the respondent of the respondent's rights under paragraphs
(b) and (f) of this section. The Assistant Secretary will provide a
copy of the unredacted complaint to the complainant (or complainant's
legal counsel, if complainant is represented by counsel) and to the
Federal Motor Carrier Safety Administration.
(b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
may submit to the Assistant Secretary a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent may request a meeting with the Assistant Secretary
to present its position.
(c) Throughout the investigation, the agency will provide to the
complainant (or the complainant's legal counsel, if complainant is
represented by counsel) a copy of all of respondent's submissions to
the agency that are responsive to the complainant's whistleblower
complaint. Before providing such materials to the complainant, the
agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The agency will also provide the complainant with an opportunity to
respond to such submissions.
(d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
(e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing that protected activity was a contributing
factor in the adverse 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 make a
prima facie showing as follows:
(i) The employee engaged in a protected activity, either actual
activity or activity about to be undertaken;
(ii) The respondent knew or suspected, actually or constructively,
that the employee engaged in the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the adverse 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 showing, i.e., to give
rise to an inference that the respondent knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the adverse action. The burden may be
satisfied, for example, if the complainant shows that the adverse
action took place shortly after the protected activity, giving rise to
the inference that it was a contributing factor in the adverse action.
If the required showing has not been made, the complainant (or the
complainant's legal counsel, if complainant is represented by counsel)
will be so notified and the investigation will not commence.
(4) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted or will be discontinued if the
respondent demonstrates by clear and convincing evidence that it would
have taken the same adverse action in the absence of the complainant's
protected activity.
(5) If the respondent fails to make a timely response or fails to
satisfy the burden set forth in the prior paragraph, the Assistant
Secretary will proceed with the investigation. The investigation will
proceed whenever it is necessary or appropriate to confirm or verify
the information provided by the respondent.
(f) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1978.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the respondent has violated
the Act and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the respondent (or the respondent's legal
counsel, if respondent is represented by counsel) to give notice of the
substance of the relevant evidence supporting the complainant's
allegations as developed during the course of the investigation. This
evidence includes any witness statements, which will be redacted to
protect the identity of confidential informants where statements were
given in confidence; if the statements cannot be redacted without
revealing the identity of confidential informants, summaries of their
contents will be provided. The complainant will also receive a copy of
the materials that must be provided to the respondent under this
paragraph. Before providing such materials to the complainant, the
agency will redact them, if necessary, in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws.
The respondent will be given the opportunity to submit a written
response, to meet with the investigators, to present statements from
witnesses in
[[Page 44137]]
support of its position, and to present legal and factual arguments.
The respondent must present this evidence within 10 business days of
the Assistant Secretary's notification pursuant to this paragraph, or
as soon thereafter as the Assistant Secretary and the respondent can
agree, if the interests of justice so require.
Sec. 1978.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether there is
reasonable cause to believe that the respondent has retaliated against
the complainant in violation of STAA.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief.
Such order will require, where appropriate: affirmative action to abate
the violation; reinstatement of the complainant to his or her former
position, with the same compensation, terms, conditions and privileges
of the complainant's employment; and payment of compensatory damages
(backpay with interest and compensation for any special damages
sustained as a result of the retaliation, including any litigation
costs, expert witness fees, and reasonable attorney fees which the
complainant has incurred). Interest on backpay will be calculated using
the interest rate applicable to underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily. The preliminary order may also
require the respondent to pay punitive damages up to $250,000.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings and, where appropriate, the preliminary order will
be sent by certified mail, return receipt requested, to all parties of
record (and each party's legal counsel if the party is represented by
counsel). The findings and, where appropriate, the preliminary order
will inform the parties of the right to object to the findings and/or
the order and to request a hearing. The findings and, where
appropriate, the preliminary order also will give the address of the
Chief Administrative Law Judge, U.S. Department of Labor. At the same
time, the Assistant Secretary will file with the Chief Administrative
Law Judge a copy of the original complaint and a copy of the findings
and/or order.
(c) The findings and the preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and request for a hearing have been timely filed as provided
at Sec. 1978.106. However, the portion of any preliminary order
requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.
Subpart B--Litigation
Sec. 1978.106 Objections to the findings and the preliminary order
and request for a hearing.
(a) Any party who desires review, including judicial review, must
file any objections and a request for a hearing on the record within 30
days of receipt of the findings and preliminary order pursuant to Sec.
1978.105(c). The objections and request for a hearing must be in
writing and state whether the objections are to the findings and/or the
preliminary order. The date of the postmark, facsimile transmittal, or
electronic communication transmittal is considered the date of filing;
if the objection is filed in person, by hand-delivery or other means,
the objection is filed upon receipt. Objections must be filed with the
Chief Administrative Law Judge, U.S. Department of Labor, and copies of
the objections must be mailed at the same time to the other parties of
record and the OSHA official who issued the findings.
(b) If a timely objection is filed, all provisions of the
preliminary order will be stayed, except for the portion requiring
preliminary reinstatement, which will not be automatically stayed. The
portion of the preliminary order requiring reinstatement will be
effective immediately upon the respondent's receipt of the findings and
preliminary order, regardless of any objections to the order. The
respondent may file a motion with the Office of Administrative Law
Judges for a stay of the Assistant Secretary's preliminary order of
reinstatement, which shall be granted only based on exceptional
circumstances. If no timely objection is filed with respect to either
the findings or the preliminary order, the findings and/or the
preliminary order will become the final decision of the Secretary, not
subject to judicial review.
Sec. 1978.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
codified at subpart A of part 18 of this title.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to an ALJ who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted de novo on the record. Administrative law
judges have broad discretion to limit discovery in order to expedite
the hearing.
(c) If both the complainant and the respondent object to the
findings and/or order, the objections will be consolidated and a single
hearing will be conducted.
(d) Formal rules of evidence will not apply, but rules or
principles designed to assure production of the most probative evidence
will be applied. The ALJ may exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Sec. 1978.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every
proceeding. In any case in which the respondent objects to the findings
or the preliminary order the Assistant Secretary ordinarily will be the
prosecuting party. In any other cases, at the Assistant Secretary's
discretion, the Assistant Secretary may participate as a party or
participate as amicus curiae at any stage of the proceeding. This right
to participate includes, but is not limited to, the right to petition
for review of a decision of an ALJ, including a decision approving or
rejecting a settlement agreement between the complainant and the
respondent.
(2) If the Assistant Secretary assumes the role of prosecuting
party in accordance with paragraph (a)(1) of this section, he or she
may, upon written notice to the ALJ or the Administrative Review Board,
as the case may be, and the other parties, withdraw as the prosecuting
party in the exercise of prosecutorial discretion. If the Assistant
Secretary withdraws, the complainant will become the prosecuting party
and the ALJ or the Administrative Review Board, as the case may be,
will issue appropriate orders to regulate the course of future
proceedings.
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(3) Copies of documents in all cases shall be sent to the parties
or, if they are represented by counsel, to the latter. In cases in
which the Assistant Secretary is a party, copies of documents shall be
sent to the Regional Solicitor's Office representing the Assistant
Secretary.
(b) The Federal Motor Carrier Safety Administration, if interested
in a proceeding, may participate as amicus curiae at any time in the
proceeding, at its discretion. At the request of the Federal Motor
Carrier Safety Administration, copies of all documents in a case must
be sent to that agency, whether or not that agency is participating in
the proceeding.
Sec. 1978.109 Decisions and orders of the administrative law judge.
(a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that protected activity
was a contributing factor in the adverse action alleged in the
complaint.
(b) If the complainant or the Assistant Secretary has satisfied the
burden set forth in the prior paragraph, relief may not be ordered if
the respondent demonstrates by clear and convincing evidence that it
would have taken the same adverse action in the absence of any
protected activity.
(c) Neither the Assistant Secretary's determination to dismiss a
complaint without completing an investigation pursuant to Sec.
1978.104(e) nor the Assistant Secretary's determination to proceed with
an investigation is subject to review by the ALJ, and a complaint may
not be remanded for the completion of an investigation or for
additional findings on the basis that a determination to dismiss was
made in error. Rather, if there otherwise is jurisdiction, the ALJ will
hear the case on the merits or dispose of the matter without a hearing
if the facts and circumstances warrant.
(d)(1) If the ALJ concludes that the respondent has violated the
law, the ALJ will issue an order that will require, where appropriate:
affirmative action to abate the violation; reinstatement of the
complainant to his or her former position with the same compensation,
terms, conditions, and privileges of the complainant's employment;
payment of compensatory damages (backpay with interest and compensation
for any special damages sustained as a result of the retaliation,
including any litigation costs, expert witness fees, and reasonable
attorney fees which the complainant may have incurred); and payment of
punitive damages up to $250,000. Interest on backpay will be calculated
using the interest rate applicable to underpayment of taxes under 26
U.S.C. 6621 and will be compounded daily.
(2) If the ALJ determines that the respondent has not violated the
law, an order will be issued denying the complaint.
(e) The decision will be served upon all parties to the proceeding,
the Assistant Secretary, and the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor. Any ALJ's
decision requiring reinstatement or lifting an order of reinstatement
by the Assistant Secretary will be effective immediately upon receipt
of the decision by the respondent. For ALJ decisions issued on or after
the effective date of the interim final rule, August 31, 2010, all
other portions of the ALJ's order will be effective 14 days after the
date of the decision unless a timely petition for review has been filed
with the Administrative Review Board (ARB), U.S. Department of Labor.
Any ALJ decision issued on or after the effective date of the interim
final rule, August 31, 2010, will become the final order of the
Secretary unless a petition for review is timely filed with the ARB and
the ARB accepts the decision for review.
Sec. 1978.110 Decisions and orders of the Administrative Review
Board.
(a) The Assistant Secretary or any other party desiring to seek
review, including judicial review, of a decision of the ALJ must file a
written petition for review with the ARB, which has been delegated the
authority to act for the Secretary and issue final decisions under this
part. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections may
be deemed waived. A petition must be filed within 14 days of the date
of the decision of the ALJ. The date of the postmark, facsimile
transmittal, or electronic communication transmittal will be considered
to be the date of filing; if the petition is filed in person, by hand-
delivery or other means, the petition is considered filed upon receipt.
The petition must be served on all parties and on the Chief
Administrative Law Judge at the time it is filed with the ARB. Copies
of the petition for review and all briefs must be served on the
Assistant Secretary and, in cases in which the Assistant Secretary is a
party, on the Associate Solicitor, Division of Occupational Safety and
Health, U.S. Department of Labor.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the ALJ will become the final
order of the Secretary unless the ARB, within 30 days of the filing of
the petition, issues an order notifying the parties that the case has
been accepted for review. If a case is accepted for review, the
decision of the ALJ will be inoperative unless and until the ARB issues
an order adopting the decision, except that any order of reinstatement
will be effective while review is conducted by the ARB unless the ARB
grants a motion by the respondent to stay that order based on
exceptional circumstances. The ARB will specify the terms under which
any briefs are to be filed. The ARB will review the factual
determinations of the ALJ under the substantial evidence standard. If
no timely petition for review is filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not
subject to judicial review.
(c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be 14 days after
the date of the decision of the ALJ, unless a motion for
reconsideration has been filed with the ALJ in the interim. In such
case, the conclusion of the hearing is the date the motion for
reconsideration is ruled upon or 14 days after a new decision is
issued. The ARB's final decision will be served upon all parties and
the Chief Administrative Law Judge by mail. The final decision also
will be served on the Assistant Secretary, and on the Associate
Solicitor, Division of Occupational Safety and Health, U.S, Department
of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing relief to the complainant.
The final order will require, where appropriate: affirmative action to
abate the violation; reinstatement of the complainant to his or her
former position with the same compensation, terms, conditions, and
privileges of the complainant's employment; payment of compensatory
damages (backpay with interest and compensation for any special damages
sustained as a result of the retaliation, including any litigation
costs, expert witness fees, and reasonable attorney fees the
complainant may have incurred); and payment of punitive damages up to
$250,000. Interest on
[[Page 44139]]
backpay will be calculated using the interest rate applicable to
underpayment of taxes under 26 U.S.C. 6621 and will be compounded
daily.
(e) If the ARB determines that the respondent has not violated the
law, an order will be issued denying the complaint.
(f) Paragraphs (a) and (b) of this section apply to all cases in
which the decision of the ALJ was issued on or after August 31, 2010.
Subpart C--Miscellaneous Provisions
Sec. 1978.111 Withdrawal of STAA complaints, findings, objections,
and petitions for review; settlement.
(a) At any time prior to the filing of objections to the Assistant
Secretary's findings and/or preliminary order, a complainant may
withdraw his or her complaint by notifying the Assistant Secretary,
orally or in writing, of his or her withdrawal. The Assistant Secretary
then will confirm in writing the complainant's desire to withdraw and
determine whether to approve the withdrawal. The Assistant Secretary
will notify the parties (and each party's legal counsel if the party is
represented by counsel) of the approval of any withdrawal. If the
complaint is withdrawn because of settlement, the settlement must be
submitted for approval in accordance with paragraph (d) of this
section. A complainant may not withdraw his or her complaint after the
filing of objections to the Assistant Secretary's findings and/or
preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or
preliminary order at any time before the expiration of the 30-day
objection period described in Sec. 1978.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 30-day objection period.
(c) At any time before the Assistant Secretary's findings and/or
preliminary order become final, a party may withdraw objections to the
Assistant Secretary's findings and/or preliminary order by filing a
written withdrawal with the ALJ. If a case is on review with the ARB, a
party may withdraw a petition for review of an ALJ's decision at any
time before that decision becomes final by filing a written withdrawal
with the ARB. The ALJ or the ARB, as the case may be, will determine
whether to approve the withdrawal of the objections or the petition for
review. If the ALJ approves a request to withdraw objections to the
Assistant Secretary's findings and/or order, and there are no other
pending objections, the Assistant Secretary's findings and/or order
will become the final order of the Secretary. If the ARB approves a
request to withdraw a petition for review of an ALJ decision, and there
are no other pending petitions for review of that decision, the ALJ's
decision will become the final order of the Secretary. If objections or
a petition for review are withdrawn because of settlement, the
settlement must be submitted for approval in accordance with paragraph
(d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
STAA complaint and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant, and the respondent agree to a
settlement. The Assistant Secretary's approval of a settlement reached
by the respondent and the complainant demonstrates the Assistant
Secretary's consent and achieves the consent of all three parties.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the ALJ if the case is before the ALJ or
by the ARB, if the ARB has accepted the case for review. A copy of the
settlement will be filed with the ALJ or the ARB, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the ALJ, or
the ARB will constitute the final order of the Secretary and may be
enforced in United States district court pursuant to 49 U.S.C.
31105(e).
Sec. 1978.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. Sec. 1978.109 and 1978.110, any person adversely affected or
aggrieved by the order may file a petition for review of the order in
the United States Court of Appeals for the circuit in which the
violation allegedly occurred or the circuit in which the person resided
on the date of the violation.
(b) A final order is not subject to judicial review in any criminal
or other civil proceeding.
(c) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the ALJ, will be transmitted
by the ARB or the ALJ, as the case may be, to the appropriate court
pursuant to the Federal Rules of Appellate Procedure and the local
rules of such court.
Sec. 1978.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order, including one approving a settlement
agreement issued under STAA, the Secretary may file a civil action
seeking enforcement of the order in the United States district court
for the district in which the violation was found to have occurred.
Sec. 1978.114 District court jurisdiction of retaliation complaints
under STAA.
(a) If there is no final order of the Secretary, 210 days have
passed since the filing of the complaint, and there is no showing that
there has been delay due to the bad faith of the complainant, the
complainant may bring an action at law or equity for de novo review in
the appropriate district court of the United States, which will have
jurisdiction over such an action without regard to the amount in
controversy. The action shall, at the request of either party to such
action, be tried by the court with a jury.
(b) Within seven days after filing a complaint in federal court, a
complainant must file with the Assistant Secretary, the ALJ, or the
ARB, depending on where the proceeding is pending, a copy of the file-
stamped complaint. A copy of the complaint also must be served on the
OSHA official who issued the findings and/or preliminary order, the
Assistant Secretary, and the Associate Solicitor, Division of
Occupational Safety and Health, U.S. Department of Labor.
Sec. 1978.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three days notice to all parties, waive any
rule or issue such orders as justice or the administration of STAA
requires.
[FR Doc. 2012-17994 Filed 7-26-12; 8:45 am]
BILLING CODE 4510-26-P