
[Federal Register Volume 80, Number 43 (Thursday, March 5, 2015)]
[Rules and Regulations]
[Pages 11865-11885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05001]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1980

[Docket Number: OSHA-2011-0126]
RIN 1218-AC53


Procedures for the Handling of Retaliation Complaints Under 
Section 806 of the Sarbanes-Oxley Act of 2002, 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 (retaliation or whistleblower) claims under section 
806 of the Corporate and Criminal Fraud Accountability Act of 2002, 
Title VIII of the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act), 
which was amended by sections 922 and 929A of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), enacted 
on July 21, 2010. An interim final rule (IFR) governing these 
provisions and request for comment was published in the Federal 
Register on November 3, 2011. Five comments were received. This rule 
responds to those comments and establishes the final procedures and 
time frames for the handling of retaliation complaints under Sarbanes-
Oxley, including procedures and time frames for employee complaints to 
the Occupational Safety and Health Administration (OSHA), 
investigations by OSHA, appeals of OSHA determinations to an 
administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, 
review of ALJ decisions by the Administrative Review Board (ARB) 
(acting on behalf of the Secretary of Labor), and judicial review of 
the Secretary of Labor's final decision. It also sets forth the 
Secretary of Labor's interpretations of the Sarbanes-Oxley 
whistleblower provision on certain matters.

DATES: This final rule is effective on March 5, 2015.

FOR FURTHER INFORMATION CONTACT: Brian Broecker, Directorate of 
Whistleblower Protection Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-4624, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email: 
OSHA.DWPP@dol.gov. This is not a toll-free number. This Federal 
Register publication is available in alternative formats. The 
alternative formats available are large print, electronic file on 
computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System) 
and audiotape.

SUPPLEMENTARY INFORMATION:

I. Background

    Sarbanes-Oxley was first enacted on July 30, 2002. Title VIII is 
designated as the Corporate and Criminal Fraud Accountability Act of 
2002. Section 806, codified at 18 U.S.C. 1514A, is the ``whistleblower 
provision,'' which provides protection to employees against retaliation 
by certain persons covered under the Act for engaging in specified 
protected activity. The Act generally was designed to protect investors 
by ensuring corporate responsibility, enhancing public disclosure, and 
improving the quality and transparency of financial reporting and 
auditing. The whistleblower provision is intended to protect employees 
who report fraudulent activity and violations of Securities Exchange 
Commission (SEC) rules and regulations that can harm innocent investors 
in publicly traded companies.
    Dodd-Frank amended the Sarbanes-Oxley whistleblower provision, 18 
U.S.C. 1514A. The regulatory revisions described herein reflect these 
statutory amendments and also seek to clarify and improve OSHA's 
procedures for handling Sarbanes-Oxley whistleblower claims, as well as 
to set forth OSHA's interpretations of the Act. 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 the Surface Transportation Assistance Act of 1982 (STAA), 29 
CFR part 1978; the National Transit Systems Security Act (NTSSA) and 
the Federal Railroad Safety Act (FRSA), 29 CFR part 1982; the Consumer 
Product Safety Improvement Act of 2008 (CPSIA), 29 CFR part 1983; the 
Employee Protection Provisions of Six Environmental Statutes and 
Section 211 of the Energy Reorganization Act of 1974, as amended, 29 
CFR part 24; the Affordable Care Act (ACA), 29 CFR part 1984; the 
Consumer Financial Protection Act (CFPA), 29 CFR part 1985; the 
Seaman's Protection Act (SPA), 29 CFR part 1986; and the FDA Food 
Safety Modernization Act (FSMA), 29 CFR part 1987.

II. Summary of Statutory Procedures and Statutory Changes to the 
Sarbanes-Oxley Whistleblower Provision

    Sarbanes-Oxley's whistleblower provision, as amended by Dodd-Frank, 
includes procedures that allow a covered employee to file a complaint 
with the Secretary of Labor (Secretary) \1\ not later than 180 days 
after the alleged retaliation or after the employee learns of the 
alleged retaliation. Sarbanes-Oxley further provides that the rules and 
procedures set forth in the Wendell H. Ford Aviation Investment and 
Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121(b), govern in 
Sarbanes-Oxley actions. 18 U.S.C. 1514A(b)(2)(A). Accordingly, upon 
receipt of the complaint, the Secretary must provide written notice to 
the person or persons named in the complaint alleged to have violated 
the Act (respondent) of the filing of the complaint, the allegations 
contained in the complaint, the substance of the evidence supporting 
the complaint, and the rights afforded the respondent throughout the 
investigation. The Secretary must then, within 60 days of receipt of 
the complaint, afford the respondent an opportunity to submit a

[[Page 11866]]

response and meet with the investigator to present statements from 
witnesses, and conduct an investigation.
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    \1\ The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of Sarbanes-Oxley. Responsibility for receiving 
and investigating complaints under Sarbanes-Oxley has been delegated 
to the Assistant Secretary for Occupational Safety and Health. 
Secretary of Labor's Order No. 01-2012 (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 are decided 
by the ARB. Secretary of Labor's Order 2-2012 (Oct. 19, 2012), 77 FR 
69378 (Nov. 16, 2012).
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    The statute provides that the Secretary may conduct an 
investigation only if the complainant has made a prima facie showing 
that the protected activity was a contributing factor in the adverse 
action alleged in the complaint and the respondent has not 
demonstrated, through clear and convincing evidence, that the employer 
would have taken the same adverse action in the absence of that 
activity (see Section 1980.104 for a summary of the investigation 
process). OSHA interprets the prima facie case requirement as allowing 
the complainant to meet this burden through the complaint as 
supplemented by interviews of the complainant.
    After investigating a complaint, the Secretary will issue written 
findings. If, as a result of the investigation, the Secretary finds 
there is reasonable cause to believe that retaliation has occurred, the 
Secretary must notify the respondent of those findings, along with a 
preliminary order which includes all relief necessary to make the 
employee whole, including, where appropriate: Reinstatement with the 
same seniority status that the employee would have had but for the 
retaliation; back pay with interest; and compensation for any special 
damages sustained as a result of the retaliation, including litigation 
costs, expert witness fees, and reasonable attorney fees.
    The complainant and the respondent then have 30 days after the date 
of the Secretary's notification in which to file objections to the 
findings and/or preliminary order and request a hearing before an ALJ. 
The filing of objections under Sarbanes-Oxley will stay any remedy in 
the preliminary order except for preliminary reinstatement. If a 
hearing before an ALJ is not requested within 30 days, the preliminary 
order becomes final and is not subject to judicial review.
    If a hearing is held, Sarbanes-Oxley requires the hearing to be 
conducted ``expeditiously.'' The Secretary then has 120 days after the 
conclusion of any hearing in which to issue a final order, which may 
provide appropriate relief or deny the complaint. Until the Secretary's 
final order is issued, the Secretary, the complainant, and the 
respondent may enter into a settlement agreement that terminates the 
proceeding. Where the Secretary has determined that a violation has 
occurred, the Secretary, will order all relief necessary to make the 
employee whole, including, where appropriate: reinstatement of the 
complainant to his or her former position together with the same 
seniority status the complainant would have had but for the 
retaliation; payment of back pay with interest; and compensation for 
any special damages sustained as a result of the retaliation, including 
litigation costs, expert witness fees, and reasonable attorney fees.
    Within 60 days of the issuance of the final order, any person 
adversely affected or aggrieved by the Secretary's final order may file 
an appeal with the United States Court of Appeals for the circuit in 
which the violation occurred or the circuit where the complainant 
resided on the date of the violation.
    Sarbanes-Oxley permits the employee to seek de novo review of the 
complaint by a United States district court in the event that the 
Secretary has not issued a final decision within 180 days after the 
filing of the complaint and there is no showing that such delay is due 
to the bad faith of the complainant. The court will have jurisdiction 
over the action without regard to the amount in controversy, and the 
case will be tried before a jury at the request of either party.
    Dodd-Frank, enacted on July 21, 2010, amended the Sarbanes-Oxley 
whistleblower provision to make several substantive changes. First, 
section 922(b) of Dodd-Frank added protection for employees from 
retaliation by nationally recognized statistical rating organizations 
(as defined in section 3(a) of the Securities Exchange Act of 1934 (15 
U.S.C. 78c)) or their officers, employees, contractors, subcontractors, 
and agents.\2\ Second, as noted above, section 922(c) of Dodd-Frank 
extended the statutory filing period for retaliation complaints under 
Sarbanes-Oxley from 90 days to 180 days after the date on which the 
violation occurs or after the date on which the employee became aware 
of the violation. Section 922(c) of Dodd-Frank also provided parties 
with a right to a jury trial in district court actions brought under 
Sarbanes-Oxley's ``kick-out'' provision, 18 U.S.C. 1514A(b)(1)(B), 
which provides that, if the Secretary has not issued a final decision 
within 180 days of 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 action without regard to the amount in 
controversy. Third, section 922(c) amended Sarbanes-Oxley to state that 
the rights and remedies provided for in 18 U.S.C. 1514A may not be 
waived by any agreement, policy form, or condition of employment, 
including by a pre-dispute arbitration agreement, and to provide that 
no pre-dispute arbitration agreement shall be valid or enforceable if 
the agreement requires arbitration of a dispute arising under this 
section.
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    \2\ Section 3(a) of the Securities Exchange Act of 1934 defines 
a nationally recognized statistical ratings organization as a credit 
rating agency that issues credit ratings certified by qualified 
institutional buyers, in accordance with 15 U.S.C. 78o-
7(a)(1)(B)(ix), with respect to: financial institutions, brokers, or 
dealers; insurance companies; corporate issuers; issuers of asset-
backed securities (as that term is defined in section 1101(c) of 
part 229 of title 17, Code of Federal Regulations, as in effect on 
September 29, 2006); issuers of government securities, municipal 
securities, or securities issued by a foreign government; or a 
combination of one or more categories of obligors described in any 
of clauses (i) through (v); and is registered under 15 U.S.C. 78o-7 
(15 U.S.C. 78c(a)(62)).
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    In addition, section 929A of Dodd-Frank clarified that companies 
covered by the Sarbanes-Oxley whistleblower provision include any 
company with a class of securities registered under section 12 of the 
Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to 
file reports under section 15(d) of the Securities Exchange Act of 1934 
(15 U.S.C. 78o(d)) including any subsidiary or affiliate whose 
financial information is included in the consolidated financial 
statements of such company. As explained in Johnson v. Siemens Building 
Technologies, Inc., ARB No. 08-032, 2011 WL 1247202, at *11 (Mar. 31, 
2011), section 929A merely clarified that subsidiaries and affiliates 
are covered under the Sarbanes-Oxley whistleblower provision. Section 
929A applies to all cases currently pending before the Secretary.

III. Summary of Regulations and Rulemaking Proceedings

    On November 3, 2011, OSHA published in the Federal Register an IFR 
revising rules governing the whistleblower provisions of Section 806 of 
Sarbanes-Oxley. 76 FR 68084. OSHA included a request for public comment 
on the interim rules by January 3, 2012.
    In response, four organizations and one individual filed comments 
with OSHA within the public comment period. Comments were received from 
Mr. Hunter Levi; the National Whistleblower Center (NWC); Katz, 
Marshall & Banks, LLP (Marshall); the Equal Employment Advisory Council 
(EEAC); and the Society of Corporate Secretaries & Governance 
Professionals (SCSGP).
    OSHA has reviewed and considered the comments and now adopts this 
final rule with minor revisions. The following discussion addresses the

[[Page 11867]]

comments, OSHA's responses, and any other changes to the provisions of 
the rule. The provisions in the IFR are adopted and continued in this 
final rule, unless otherwise noted below.

General Comments

    Marshall commented that ``in large part, the rules simply 
effectuate changes made by [Dodd-Frank] and are rather modest in 
scope,'' and wrote in support of several changes made in the IFR. 
Marshall stated that Congress enacted Sarbanes-Oxley whistleblower 
provisions to ensure that employees could raise concerns about 
potentially harmful fraud on shareholders and others without fear of 
retaliation. In response to anticipated comments that the rules ``will 
make pursuing a SOX whistleblower claim far less daunting,'' Marshall 
noted, ``why should OSHA procedures make pursuing a whistleblower 
complaint daunting for an employee in a procedural sense?'' (emphasis 
in original). Marshall explained, ``If the purpose of SOX whistleblower 
protections is to encourage and facilitate the timely reporting of 
financial fraud that can cause tremendous harm to the public good, the 
administrative process should be as accessible as possible.'' Marshall 
also commented on specific provisions of the rule; those comments are 
addressed below.
    SCSGP noted that Section 806 of Sarbanes-Oxley provides 
whistleblowers with broad protection against retaliation, and its 
safeguards were enhanced by the enactment of Dodd-Frank. SCSGP also 
pointed to recent ARB case law and other provisions of Dodd-Frank that 
provide expanded whistleblower protections. SCSGP commented that these 
developments ``underscore the need to ensure that employers are 
provided adequate due process in the context of DOL's administration of 
Section 806 complaints.'' SCSGP comments then focused on four aspects 
of the IFR that SCSGP considers are ``unauthorized by statute, 
imbalanced, and unduly prejudicial to employers' reasonable 
interests.'' Those specific comments and provisions are discussed in 
detail below.
    Mr. Levi asserted his belief that the IFR contained ``new 
provisions that violate the intent of Congress, ignore longstanding 
precedent concerning the authority of the Secretary, and seek to create 
a bogus legal exception to SOX Section 802, [18 U.S.C. 1519]; which 
deals with the criminal obstruction of SOX in government proceedings.'' 
Mr. Levi also asserted his belief that the revisions to which he 
objects violate the rights of Sarbanes-Oxley complainants and increase 
the risk of employer securities fraud. Mr. Levi's comments additionally 
addressed two specific portions of the IFR Federal Register notice: 
Section 1980.112 and the preamble discussion of Section 1980.114. OSHA 
has addressed Mr. Levi's comments in the discussion of the specific 
provisions below.
    EEAC commented that the IFR accurately reflected the changes made 
by Dodd-Frank, and commended OSHA for this effort. EEAC further 
submitted that many of the additional changes incorporated in the IFR, 
for purposes of clarification and improvement of the procedures, were 
not directed by Dodd-Frank. EEAC respectfully submitted that many of 
these changes ``seem intentionally designed to make it easier for 
claimants to file and prosecute, and more difficult for respondents to 
defend,'' Sarbanes-Oxley whistleblower complaints. EEAC then commented 
on several specific provisions of the rule, and those comments are 
addressed below.
    NWC, in support of its various suggested revisions, discussed the 
overall remedial purpose of the Sarbanes-Oxley whistleblower 
provisions, as well as the employee protection provisions of various 
other statutes that OSHA enforces. NWC also commented specifically on 
several provisions of the IFR, which are discussed below.
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Section 1980.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
Sarbanes-Oxley and provides an overview of the procedures covered by 
these regulations. No comments were received on this section. However, 
OSHA has added a statement in subparagraph (b) noting that these rules 
reflect the Secretary's interpretations of the Act.
Section 1980.101 Definitions
    This section includes general definitions applicable to Sarbanes-
Oxley's whistleblower provision. The interim final rule updated and 
revised this section in light of Dodd-Frank's amendments to Sarbanes-
Oxley. In March 2014, the Supreme Court issued its decision in Lawson 
v. FMR LLC, 134 S. Ct. 1158 (2014), in which it affirmed the 
Department's view that protected employees under Sarbanes-Oxley's 
whistleblower provision include employees of contractors to public 
companies. No changes have been made to the definition of ``employee'' 
in this rule, as the interim final rule's definition of ``employee'' is 
consistent with the Supreme Court's decision. No comments were received 
on this section of the interim final rule and no changes have been made 
to this section.
Section 1980.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under 
Sarbanes-Oxley and the conduct that is prohibited in response to any 
protected activities.
    The final rule, like the interim final rule, provides that an 
employee is protected against retaliation by a covered person for any 
lawful act done by the employee:
    (1) To provide information, cause information to be provided, or 
otherwise assist in an investigation regarding any conduct which the 
employee reasonably believes constitutes a violation of 18 U.S.C. 1341 
(mail fraud), 1343 (wire fraud), 1344 (bank fraud), or 1348 (securities 
fraud), any rule or regulation of the Securities and Exchange 
Commission, or any provision of Federal law relating to fraud against 
shareholders, when the information or assistance is provided to or the 
investigation is conducted by--
    (i) A Federal regulatory or law enforcement agency;
    (ii) Any Member of Congress or any committee of Congress; or
    (iii) A person with supervisory authority over the employee (or 
such other person working for the employer who has the authority to 
investigate, discover, or terminate misconduct); or
    (2) To file, cause to be filed, testify, participate in, or 
otherwise assist in a proceeding filed or about to be filed (with any 
knowledge of the employer) relating to an alleged violation of 18 
U.S.C. 1341, 1343, 1344, or 1348, any rule or regulation of the 
Securities and Exchange Commission, or any provision of Federal law 
relating to fraud against shareholders.
    In order to have a ``reasonable belief'' under Sarbanes-Oxley, a 
complainant must have both a subjective, good faith belief and an 
objectively reasonable belief that the complained-of conduct violates 
one of the enumerated categories of law. See Lockheed Martin Corp. v. 
ARB, 717 F.3d 1121, 1132 (10th Cir. 2013); Wiest v. Lynch, 710 F.3d 
121, 131-32 (3d Cir. 2013); Sylvester v. Parexel Int'l LLC, ARB No. 07-
123, 2011 WL 2165854, at *12 (ARB May 25, 2011). The requirement that 
the complainant have a subjective, good faith belief is satisfied so 
long as the complainant actually believed that the conduct complained 
of violated the relevant law. See Sylvester, 2011 WL

[[Page 11868]]

2165854, at *12 (citing Harp v. Charter Commc'ns, 558 F.3d 722, 723 
(7th Cir. 2009)); Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir. 
2009) (quoting Welch v. Chao, 536 F.3d 269, 277 n.4 (4th Cir. 2008) 
(``Subjective reasonableness requires that the employee `actually 
believed the conduct complained of constituted a violation of pertinent 
law.' '')). ``[T]he legislative history of Sarbanes-Oxley makes clear 
that its protections were `intended to include all good faith and 
reasonable reporting of fraud, and there should be no presumption that 
reporting is otherwise.' '' Sylvester, 2011 WL 2165854, at *11 (quoting 
Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1002 (9th Cir. 2009) 
(citing 148 Cong. Rec. S7418-01, S7420 (daily ed. July 26, 2002))).
    The objective ``reasonableness'' of a complainant's belief is 
typically determined ``based on the knowledge available to a reasonable 
person in the same factual circumstances with the same training and 
experience as the aggrieved employee.'' Sylvester, 2011 WL 2165854, at 
*12 (internal quotation marks and citation omitted); Harp, 558 F.3d at 
723. However, the complainant need not show that the conduct complained 
of constituted an actual violation of law. Pursuant to this standard, 
an employee's whistleblower activity is protected where it is based on 
a reasonable, but mistaken, belief that a violation of the relevant law 
has occurred or is likely to occur. See Sylvester, 2011 WL 2165854, at 
*13 (citing Welch, 536 F.3d at 277); Allen v. Admin. Rev. Bd., 514 F.3d 
468, 476-77 (5th Cir. 2008); Melendez v. Exxon Chemicals Americas, ARB 
No. 96-051, slip op. at 21 (ARB July 14, 2000) (``It is also well 
established that the protection afforded whistleblowers who raise 
concerns regarding statutory violations is contingent on meeting the 
aforementioned `reasonable belief' standard rather than proving that 
actual violations have occurred.'').
    NWC commented on this section and suggested that an additional 
paragraph be added to this section, addressing the question of 
extraterritorial application of Section 806 of Sarbanes-Oxley. At the 
time of its comment, this question was before the ARB for 
consideration. NWC noted that because the issue of extraterritorial 
application was pending, the Department of Labor (Department) could 
``facilitate determination of these issues by making a few 
clarifications in the regulations.'' NWC suggested OSHA add a paragraph 
29 CFR 1980.102(c), that provides as follows: ``(c) The employee 
protections of the Act shall have the same extraterritorial application 
as the Securities Exchange Act, including the Foreign Corrupt Practices 
Act (FCPA), 15 U.S.C. 78dd-1.'' However, since the writing of the 
comment, the ARB has issued its decision on this question, holding that 
``Section 806(a)(1) does not allow for its extraterritorial 
application.'' Villanueva v. Core Laboratories NV, No. 09-108, 2011 WL 
7021145, at *9 (ARB Dec. 22, 2011), affirmed on other grounds, 
Villanueva v. U.S. Dep't of Labor, 743 F.3d 103 (5th Cir. 2014). The 
ARB's decision in Villanueva provides the Secretary's views on the 
extraterritorial application of the SOX whistleblower provision and 
OSHA therefore declines to include NWC's suggested paragraph on this 
issue. No other comments were received on this section and no changes 
have been made to it.
Section 1980.103 Filing of Retaliation Complaints
    This section explains the requirements for filing a retaliation 
complaint under Sarbanes-Oxley. The Dodd-Frank 2010 statutory 
amendments changed the statute of limitations for filing a complaint 
from 90 to 180 days after the date on which the violation occurs, or 
after the date on which the employee became aware of the violation. 
This change was reflected in the IFR and is continued here. Therefore, 
to be timely, a complaint must be filed within 180 days of when the 
alleged violation occurs, or after the date on which the employee 
became aware of the violation. Under Delaware State College v. Ricks, 
449 U.S. 250, 258 (1980), the time of the alleged violation is 
considered to be when the retaliatory decision has been both made and 
communicated to the complainant. The time for filing a complaint under 
Sarbanes-Oxley may be tolled for reasons warranted by applicable case 
law. For example, OSHA may consider the time for filing a Sarbanes-
Oxley complaint equitably tolled if the complainant mistakenly files a 
complaint with another agency instead of OSHA within 180 days after 
becoming aware of the alleged violation. EEAC expressed its support for 
this revision.
    The IFR also amended Section 1980.103(b) to change the requirement 
that whistleblower complaints to OSHA under Sarbanes-Oxley ``must be in 
writing and should include a full statement of the acts and omissions, 
with pertinent dates, which are believed to constitute the 
violations.'' Consistent with OSHA's procedural rules under other 
whistleblower statutes, complaints filed under Sarbanes-Oxley now need 
not be in any particular form. They may be either oral or in writing. 
When a complaint is made orally, OSHA will reduce the complaint to 
writing. If a complainant is not able to file the complaint in English, 
the complaint may be filed in any language. With the consent of the 
employee, complaints may be filed by any person on the employee's 
behalf. As noted below, several comments were received on this section 
of the interim final rule. No changes have been made in response to the 
comments. However, the term ``email'' in paragraph (d) has been changed 
to ``electronic communication transmittal'' because OSHA has published 
an on-line complaint form on its Web site, http://www.whistleblowers.gov/complaint_page.html.
    SCSGP commented that it is ``very concerned that the proposed `oral 
complaint' provision will have unintended negative consequences, and 
[it] urge[s] OSHA not to enact it.'' SCSGP further commented that the 
new rule is ``unnecessary because SOX complaints most often are filed 
by sophisticated professionals,'' and that the rule shifts the OSHA 
investigator's role from one of a neutral fact-finder to an advocate 
for the complainant. SCSGP also commented that the rule lacks any 
standard for the investigator's creation of the complaint. SCSGP also 
raised the concern that the new rule ``presents the risk that the 
complainant will later treat the investigator as an adverse witness in 
the litigation.'' SCSGP explained that in cases where a complainant who 
proceeds to further stages of the administrative proceeding, or a 
complainant who transfers their case to federal district court, may 
seek to modify or expand their original complaint by arguing that the 
OSHA investigator did not accurately record the complainant's 
allegations at the time of the initial complaint. SCSGP explained this 
could place the investigator in the role of an adverse witness and 
subject him or her to scrutiny for failing to capture the oral 
complaint in totality.
    Similarly, EEAC commented that it questioned the ``rationale of 
eliminating the requirement that a written complaint contain the full 
details concerning the alleged violation.'' EEAC commented that written 
complaints emphasize the gravity of invoking protection under Sarbanes-
Oxley and discourage frivolous complaints. The EEAC also commented on 
the provision that complaints may be made in any language, stating that 
``[t]he agency offers no guidance on by whom, if at all, the complaint 
will be translated into English'' nor how a respondent may submit its 
own proposed translation.

[[Page 11869]]

EEAC respectfully recommended that this final rule make clear how these 
issues would be resolved. Conversely, Marshall wrote in support of 
these revisions.
    OSHA has considered these comments and adopts the changes made in 
the IFR. The statutory text of SOX does not require written complaints 
to OSHA. See 29 U.S.C. 1514A(b)(1)(A). Further, as Marshall noted in 
his comment, ``[m]aking it clear that OSHA can accept oral complaints 
is better described as a clarification than as an amendment to existing 
procedures.'' Indeed, the Department has long permitted oral complaints 
under the environmental statutes. See, e.g., Roberts v. Rivas 
Environmental Consultants, Inc., ARB No. 97-026, 1997 WL 578330, at *3 
n.6 (ARB Sept. 17, 1997) (complainant's oral statement to an OSHA 
investigator, and the subsequent preparation of an internal memorandum 
by that investigator summarizing the oral complaint, satisfies the ``in 
writing'' requirement of CERCLA, 42 U.S.C. 9610(b), and the 
Department's accompanying regulations in 29 CFR part 24); Dartey v. 
Zack Co. of Chicago, No. 1982-ERA-2, 1983 WL 189787, at *3 n.1 (Sec'y 
of Labor Apr. 25, 1983) (adopting administrative law judge's findings 
that complainant's filing of a complaint to the wrong DOL office did 
not render the filing invalid and that the agency's memorandum of the 
complaint satisfied the ``in writing'' requirement of the Energy 
Reorganization Act (``ERA'') and the Department's accompanying 
regulations in 29 CFR part 24). Moreover, accepting oral complaints 
under Sarbanes-Oxley is consistent with OSHA's longstanding practice of 
accepting oral complaints filed under Section 11(c) of the Occupational 
Safety and Health Act of 1970, 29 U.S.C. 660(c); Section 211 of the 
Asbestos Hazard Emergency Response Act of 1986, 15 U.S.C. 2651; Section 
7 of the International Safe Container Act of 1977, 46 U.S.C. 80507; and 
STAA, 49 U.S.C. 31105. This change also accords with the Supreme 
Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 
in which the Court held that the anti-retaliation provision of the Fair 
Labor Standards Act, which prohibits employers from discharging or 
otherwise discriminating against an employee because such employee has 
``filed any complaint,'' protects employees' oral complaints of 
violations of the Fair Labor Standards Act. 563 U.S. __, 131 S. Ct. 
1325 (2011).
    Furthermore, OSHA believes that its acceptance of oral complaints 
under Sarbanes-Oxley is most consistent with the ARB's decisions in 
Sylvester and Evans v. U.S. Environmental Protection Agency, ARB No. 
08-059 (ARB Jul. 31, 2012). In Sylvester, noting that OSHA does not 
require complaints under Sarbanes-Oxley to be in any form and that 
under 29 CFR 1980.104(b) OSHA has a duty, if appropriate, to interview 
the complainant to supplement the complaint, the ARB held that the 
federal court pleading standards established in Bell Atlantic Corp. v. 
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) 
do not apply to Sarbanes-Oxley whistleblower complaints filed with 
OSHA. 2011 WL 2165854, at *9-10. In Evans, the ARB articulated the 
legal standard for analyzing the sufficiency of a whistleblower 
complaint brought before an ALJ. The ARB held that the whistleblower 
complaint need only give ``fair notice'' of the protected activity and 
adverse action to withstand a motion to dismiss for failure to state a 
claim. ARB No. 08-059, slip op. at *9. Furthermore, the ARB instructed 
that an ALJ should not act on a motion to dismiss for failure to state 
a claim until it is clear that the complainant has filed a document 
that articulates the claims presented to the OALJ for hearing following 
OSHA's findings. Id., at *8. Complaints filed with OSHA under this 
section are simply ``informal documents that initiate an investigation 
into allegations of unlawful retaliation in violation of the [Act].'' 
Id., at *7. Permitting a complainant to file a complaint orally or in 
writing or in any language is consistent with the purpose of the 
complaint filed with OSHA, which is to trigger an investigation 
regarding whether there is reasonable cause to believe that retaliation 
occurred.
    Furthermore, upon receipt of a complaint, OSHA must provide the 
respondent notice of the filing of the complaint, the allegations 
contained in the complaint, and the substance of the evidence 
supporting the complaint. 49 U.S.C. 42121(b)(2)(A); 29 CFR 1980.104(a). 
OSHA may not undertake an investigation of the complaint unless the 
complaint, supplemented as appropriate by interviews of the 
complainant, makes a prima facie allegation of retaliation. 49 U.S.C. 
42121(b)(2)(B); 29 CFR 1980.104(e). If OSHA commences an investigation, 
the respondent has the opportunity to submit a response to the 
complaint and meet with the investigator to present statements from 
witnesses. 49 U.S.C. 42121(b)(2)(A); 29 CFR 1980.104(b). To fulfill 
these statutory responsibilities, when OSHA receives an oral complaint, 
OSHA gathers as much information as it can from the complainant about 
the complainant's allegations so that the respondent will be able to 
adequately respond to the complaint and so that OSHA may properly 
determine the scope of any investigation into the complaint. OSHA also 
generally provides the respondent with a copy of its memorandum 
memorializing the complaint, and the respondent has the opportunity to 
request that OSHA clarify the allegations in the complaint if 
necessary.
    Regarding SCSGP's comment that the investigator may be later called 
as an adverse witness in litigation, OSHA understands this comment to 
be implicating the issue of adding untimely claims or exhaustion of 
remedies. Under Section 806, an employee must file a complaint with 
OSHA alleging a violation of this provision and allow OSHA an 
opportunity to investigate before pursuing the claim before an ALJ or 
in federal court. 18 U.S.C. 1514A(b)(1)(A). Failure to raise a 
particular claim or allegation before OSHA can result in that claim 
being barred in subsequent administrative or federal court proceedings 
for failure to ``exhaust administrative remedies.'' See, e.g., Willis 
v. Vie Financial Group, Inc., No. Civ. A. 04-435, 2004 WL 1774575 (E.D. 
Pa. Aug. 6, 2004) (barring a complainant's claim because he did not 
amend his OSHA complaint to assert post-complaint retaliation); Carter 
v. Champion Bus, Inc., ARB No. 05-076, slip op. at *9 (ARB Sept. 29, 
2006) (the ARB generally will not consider arguments or evidence first 
raised on appeal); Saporito v. Central Locating Services, Ltd., ARB No. 
05-004, slip op. at *9 (ARB Feb. 28, 2006) (the ARB was unwilling to 
entertain an argument from the complainant that he had engaged in 
certain activity where he had not presented that theory to the ALJ, and 
where the argument was supported by no ``references to the record, 
legal authority or analysis.''). While a dispute could arise in a 
whistleblower complaint filed orally regarding whether OSHA properly 
recorded the allegations at issue in the complaint and whether the 
complainant properly exhausted his administrative remedies, this 
possibility is not new, as OSHA's historical practice has been to 
accept complaints orally and reduce them to writing and to supplement 
complaints with interviews of the complainant as necessary. In 
addition, the possibility that a dispute could arise regarding the 
claims raised to OSHA does not outweigh the benefits to whistleblowers 
and the public of allowing such

[[Page 11870]]

complaints to be filed orally with OSHA.
    In response to EEAC's comment regarding OSHA's acceptance of 
complaints in any language, OSHA believes that its procedures are fair 
and ensure the accuracy of the complaint and evidence submitted to 
OSHA. Under current practices for receiving complaints, OSHA uses 
professional interpretive services to communicate with employees 
speaking a language other than English. The OSHA investigator will 
reduce the complaint to writing, in English, as communicated to him or 
her through the interpretive service. Translation services are also 
available to interview complainants throughout an investigation. 
Additionally, should the complainant wish to submit his or her 
complaint in another language in writing, or submit additional 
documents throughout the investigation in another language, OSHA will 
use document translation services. Should a respondent wish to see an 
original document, as well as any translation, this information may be 
exchanged in accordance with the procedures and privacy protections set 
forth in Section 1980.104 (discussed in detail below). A respondent 
then would be free to submit his or her own translation of any such 
document to the OSHA investigator in accordance with the investigation 
procedures set forth in Section 1980.104.
Section 1980.104 Investigation
    This section describes the procedures that apply to the 
investigation of Sarbanes-Oxley complaints. Paragraph (a) of this 
section outlines the procedures for notifying the parties and the SEC 
of the complaint and notifying respondents of their rights under these 
regulations. Paragraph (b) describes the procedures for the respondent 
to submit its response to the complaint. Paragraph (c) of the IFR 
specified that OSHA 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 OSHA that are 
responsive to the complainant's whistleblower complaint at a time 
permitting the complainant an opportunity to respond to those 
submissions. Paragraph (c) further provided that before providing such 
materials to the complainant, OSHA will redact them in accordance with 
the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable 
confidentiality laws. Paragraph (d) of this section discusses 
confidentiality of information provided during investigations.
    Paragraph (e) of this section sets forth the applicable burdens of 
proof. Paragraph (f) describes the procedures OSHA will follow prior to 
the issuance of findings and a preliminary order when OSHA has 
reasonable cause to believe that a violation has occurred.
    The Sarbanes-Oxley whistleblower provision mandates that an action 
under the Act is governed by the burdens of proof set forth in AIR21, 
49 U.S.C. 42121(b). The statute requires that a complainant make an 
initial prima facie showing that a 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. 
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 within a temporal proximity of the 
protected activity, or at the first opportunity available to the 
respondent, giving rise to the inference that it was a contributing 
factor in the adverse action. See, e.g., Porter v. Cal. Dep't of Corr., 
419 F.3d 885, 895 (9th Cir. 2005) (years between the protected activity 
and the retaliatory actions did not defeat a finding of a causal 
connection where the defendant did not have the opportunity to 
retaliate until he was given responsibility for making personnel 
decisions).
    If the complainant does not make the 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 as that under Sarbanes-Oxley, serves a ``gatekeeping function'' 
that ``stem[s] 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. 49 U.S.C. 42121(b)(2)(B)(ii). 
Thus, OSHA must dismiss a complaint under Sarbanes-Oxley and not 
investigate further if either: (1) The complainant fails to meet the 
prima facie showing that 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.
    Assuming that an investigation proceeds beyond the gatekeeping 
phase, the statute requires OSHA to determine whether there is 
reasonable cause to believe that protected activity was a contributing 
factor in the alleged adverse action. 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.'' Marano v. Dep't of 
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (Whistleblower Protection 
Act, 5 U.S.C. 1221(e)(1)); see, e.g., Lockheed Martin Corp., 717 F.3d 
at 1136. For protected activity to be a contributing factor in the 
adverse action, ``a complainant need not necessarily prove that the 
respondent's articulated reason was a pretext in order to prevail,'' 
because a complainant alternatively can prevail by showing that the 
respondent's ``reason, while true, is only one of the reasons for its 
conduct'' and that another reason was the complainant's protected 
activity. See Klopfenstein v. PCC Flow Techs. Holdings, Inc., No. 04-
149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (citing Rachid v. Jack 
in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing 
contributing factor test under the Sarbanes-Oxley whistleblower 
provision), aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S. 
Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010).
    If OSHA finds reasonable cause to believe that the alleged 
protected activity was a contributing factor in the adverse action, 
OSHA may not order relief if the employer demonstrates by ``clear and 
convincing evidence'' that it would have taken the same action in the 
absence of the protected activity. See 49 U.S.C. 42121(b)(2)(B)(iv). 
The ``clear and convincing evidence'' standard is a higher burden of 
proof than a ``preponderance of the evidence'' standard. Clear and 
convincing evidence is evidence indicating that the thing to be proved 
is highly probable or reasonably certain. Clarke v. Navajo Express, 
Inc., No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) 
(discussing burdens of proof under analogous whistleblower provision in 
STAA).
    NWC and the EEAC commented on this section. NWC suggested 
clarification of what ``other applicable confidentiality laws'' might 
apply to redaction of respondent's submissions, before providing them 
to the complainant. NWC also suggested several additions and revisions 
to this

[[Page 11871]]

section, as well as to Section 1980.107, to further protect the 
confidentiality of complainants. NWC pointed to the confidentiality 
provisions of Section 922 of the Dodd-Frank Act, creating a 
whistleblower program under section 21F of the Securities Exchange Act, 
\3\ as well as recent developments in the United States Tax Court, and 
suggested that the Department bring its own confidentiality practices 
into conformity.
---------------------------------------------------------------------------

    \3\ Section 21F(h)(2)(A) prevents disclosure of identifying 
information by the Commission and its officers, except in accordance 
with the provisions of the Privacy Act, unless and until required to 
be disclosed to a defendant or respondent in connection with a 
public proceeding instituted by the Commission or any other 
specified entity. 15 U.S.C. 78u-6(h)(2).
---------------------------------------------------------------------------

    The EEAC commented that it was extremely concerned that the 
modifications made in this section in the IFR would increase the amount 
of information provided to the complainant during the investigation but 
reduce information provided to the respondent. As OSHA explained in the 
preamble to the IFR, those revisions were aimed at aiding OSHA's 
ability to conduct a ``full and fair investigation.'' EEAC submitted 
that the same logic supports providing respondents with all of the 
information that OSHA receives from the complainant during the 
investigation. Specifically, EEAC suggested that OSHA retain the former 
language in paragraph (a) regarding notice to the respondent upon 
receipt of a complaint, and revise paragraph (c) to provide that the 
same information will be provided to respondents as is provided to 
complainants during the investigation. EEAC also suggested paragraph 
(f) include language that if the complainant submits new information at 
this stage, the employer will be given a copy and the opportunity to 
respond before OSHA makes a final determination on the complaint.
    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 information that the respondent identifies as confidential 
commercial or financial information exempt from disclosure under the 
Freedom of Information Act (FOIA). OSHA's procedures for handling 
information identified as confidential during an investigation are 
explained in OSHA's Whistleblower Investigations Manual available at: 
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=506.
    Additionally, OSHA has considered NWC's suggestions regarding 
complainants' confidentiality. OSHA agrees that protecting 
complainants' confidentiality and privacy to the extent possible under 
the law is essential. However, OSHA believes that existing procedures 
and the Privacy Act of 1974, 5 U.S.C. 552a, et seq., provide sufficient 
safeguards. The Whistleblower Investigations Manual instructs that 
while a case is an open investigation, information contained in the 
case file generally may not be disclosed to the public. Once a case is 
closed, complainants continue to be protected from third party public 
disclosure under the Privacy Act. 5 U.S.C. 552a(k)(2). However, if a 
case moves to the ALJ hearing process, it becomes a public proceeding 
and the public has a right of access to information under various laws 
and the Constitution. See Newport v. Calpine Corp., ALJ No. 2007-ERA-
00007, slip op. at *6 (Feb. 12, 2008), available at http://www.oalj.dol.gov/PUBLIC/WHISTLEBLOWER/DECISIONS/ALJ_DECISIONS/ERA/2007ERA00007A.PDF (discussing hearings before the ALJ under the 
analogous statutory provisions of the ERA and the public right of 
access). Information submitted as evidence during these proceedings 
becomes the exclusive record for the Secretary's decision. Public 
disclosure of the record for the Secretary's decision is governed by 
the Freedom of Information Act and the Privacy Act. Id. A party may 
request that a record be sealed to prevent disclosure of such 
information. However, the Constitution and various federal laws cited 
in Newport govern the granting of such a motion; OSHA cannot circumvent 
these authorities by rulemaking. See also Thomas v. Pulte Homes, Inc., 
ALJ No. 2005-SOX-00009, slip op. at *2-3 (Aug. 9, 2005) (noting that in 
order to prevent disclosure of such information, a moving party must 
request a protective order pursuant to the OALJ rules of procedure; the 
standard for granting such a motion is high and the burden of making a 
showing of good cause rests with the moving party).
    In response to EEAC's comments and suggestions, OSHA agrees that 
respondents must be afforded fair notice of the allegations and 
substance of the evidence against them. OSHA also believes that the 
input of both parties in the investigation is important to ensuring 
that OSHA reaches the proper outcome during its investigation. Thus, in 
response to EEAC's comments, Section 1980.104(a) has been revised to 
more closely mirror AIR21's statutory requirement, incorporated by 
Sarbanes-Oxley, in 49 U.S.C. 42121(b)(1) that after receiving a 
complaint, the Secretary shall notify the respondent of the filing of 
the complaint, of the allegations contained in the complaint, and of 
the substance of the evidence supporting the complaint. In response to 
EEAC's comment regarding paragraph (c), OSHA notes that its current 
policy is to request that each party provide the other parties with a 
copy of all submissions to OSHA that are responsive to the 
whistleblower complaint. Where the parties do not so provide, OSHA will 
ensure that each party is provided with such information, redacted as 
appropriate. OSHA will also ensure that each party is provided with an 
opportunity to respond to the other party's submissions. OSHA has 
revised paragraph (c) to clarify these policies regarding information 
sharing during the course of an investigation. Further information 
regarding OSHA's nonpublic disclosure and information sharing policies 
may also be found in the Whistleblower Investigations Manual. Regarding 
EEAC's suggestion for paragraph (f), it is already OSHA's policy to 
provide the respondent a chance to review any additional evidence on 
which OSHA intends to rely that is submitted by the complainant at this 
stage and to provide the respondent an opportunity to respond to any 
such additional evidence. This policy is necessary to achieve the 
purpose of paragraph (f), which is to afford respondent due process 
prior to ordering preliminary reinstatement as required by the Supreme 
Court's decision in Brock v. Roadway Express, Inc., 481 U.S. 252 
(1987). OSHA also notes that the Whistleblower Investigations Manual 
provides guidance to investigators on sharing information with both 
parties throughout the investigation.
    OSHA has made additional minor edits throughout this section to 
clarify the applicable procedures and burdens of proof.
Section 1980.105 Issuance of Findings and Preliminary Orders
    Throughout this section, minor changes were made as needed to 
clarify the provision without changing its meaning. This section 
provides that, on the basis of information obtained in the 
investigation, the Assistant Secretary will issue, within 60 days of 
the filing

[[Page 11872]]

of a complaint, written findings regarding whether or not there is 
reasonable cause to believe that the complaint has merit. If the 
findings are that there is reasonable cause to believe that the 
complaint has merit, in accordance with the statute, 18 U.S.C. 
1514A(c), the Assistant Secretary will order ``all relief necessary to 
make the employee whole,'' including preliminary reinstatement, back 
pay with interest, and compensation for any special damages sustained 
as a result of the retaliation, including litigation costs, expert 
witness fees, and reasonable attorney fees.
    Interest on back pay will be calculated using the interest rate 
applicable to underpayment of taxes under 26 U.S.C. 6621 and will be 
compounded daily. In the Secretary's view, 26 U.S.C. 6621 provides the 
appropriate rate of interest to ensure that victims of unlawful 
retaliation under Sarbanes-Oxley are made whole. The Secretary has long 
applied the interest rate in 26 U.S.C. 6621 to calculate interest on 
back pay in whistleblower cases. Doyle v. Hydro Nuclear Servs., Nos. 
99-041, 99-042, 00-012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 
2000); see also Cefalu v. Roadway Express, Inc., ARB Case No. 09-070, 
2011 WL 1247212, at *2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, 
ARB Case Nos. 07-073, 08-051, 2010 WL 1776974, at *8 (ARB Apr. 10, 
2010); Murray v. Air Ride, Inc., ARB Case No. 00-045, slip op. at 9 
(ARB Dec. 29, 2000). Section 6621 provides the appropriate measure of 
compensation under Sarbanes-Oxley and other DOL-administered 
whistleblower statutes because it ensures the complainant will be 
placed in the same position he or she would have been in if no unlawful 
retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB 
Case No. 99-061, slip op. at 5 (ARB July 16, 1999) (interest awards 
pursuant to Sec.  6621 are mandatory elements of complainant's make-
whole remedy). Section 6621 provides a reasonably accurate prediction 
of market outcomes (which represents the loss of investment opportunity 
by the complainant and the employer's benefit from use of the withheld 
money) and thus provides the complainant with appropriate make-whole 
relief. See EEOC v. Erie Cnty., 751 F.2d 79, 82 (2d Cir. 1984) 
(``[s]ince the goal of a suit under the [Fair Labor Standards Act] and 
the Equal Pay Act is to make whole the victims of the unlawful 
underpayment of wages, and since [Sec.  6621] has been adopted as a 
good indicator of the value of the use of money, it was well within'' 
the district court's discretion to calculate prejudgment interest under 
Sec.  6621); New Horizons for the Retarded, 283 N.L.R.B. No. 181, 1173 
(May 28, 1987) (observing that ``the short-term Federal rate [used by 
Sec.  6621] is based on average market yields on marketable Federal 
obligations and is influenced by private economic market forces''). 
Similarly, as explained in the interim final rule, daily compounding of 
the interest award ensures that complainants are made whole for 
unlawful retaliation in violation of Sarbanes-Oxley. 76 FR 68088.
    In ordering back pay, OSHA also will require the respondent to 
submit the appropriate documentation to the Social Security 
Administration (SSA) allocating the back pay to the appropriate 
calendar quarters. Requiring the reporting of back pay allocation to 
the SSA serves the remedial purposes of Sarbanes-Oxley by ensuring that 
employees subjected to retaliation are truly made whole. See Don 
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (NLRB Aug. 8, 
2014). As the NLRB explained, when back pay is not properly allocated 
to the years covered by the award, a complainant may be disadvantaged 
in several ways. First, improper allocation may interfere with a 
complainant's ability to qualify for any old-age Social Security 
benefit. Id. at *3 (``Unless a [complainant's] multiyear backpay award 
is allocated to the appropriate years, she will not receive appropriate 
credit for the entire period covered by the award, and could therefore 
fail to qualify for any old-age social security benefit.''). Second, 
improper allocation may reduce the complainant's eventual monthly 
benefit. Id. As the NLRB explained, ``if a backpay award covering a 
multi-year period is posted as income for 1 year, it may result in SSA 
treating the [complainant] as having received wages in that year in 
excess of the annual contribution and benefit base.'' Id. Wages above 
this base are not subject to Social Security taxes, which reduces the 
amount paid on the employee's behalf. ``As a result, the 
[complainant's] eventual monthly benefit will be reduced because 
participants receive a greater benefit when they have paid more into 
the system.'' Id. Finally, ``social security benefits are calculated 
using a progressive formula: although a participant receives more in 
benefits when she pays more into the system, the rate of return 
diminishes at higher annual incomes.'' Therefore, a complainant may 
``receive a smaller monthly benefit when a multiyear award is posted to 
1 year rather than being allocated to the appropriate periods, even if 
social security taxes were paid on the entire amount.'' Id. The purpose 
of a make-whole remedy such as back pay is to put the complainant in 
the same position the complainant would have been absent the prohibited 
retaliation. That purpose is not achieved when the complainant suffers 
the disadvantages described above. The Secretary believes that 
requiring proper SSA allocation is necessary to achieve the make-whole 
purpose of a back pay award.
    The findings and, where appropriate, preliminary order, advise the 
parties of their right to file objections to the findings of the 
Assistant Secretary and to request a hearing. If no objections are 
filed within 30 days of receipt of the findings, the findings and any 
preliminary order of the Assistant Secretary become the final decision 
and order of the Secretary. If objections are timely filed, any order 
of preliminary reinstatement will take effect, but the remaining 
provisions of the order will not take effect until administrative 
proceedings are completed.
    The provision that reinstatement would not be appropriate where the 
respondent establishes that the complainant is a security risk was 
removed from 1980.105(a)(1) in the IFR. OSHA believes that the 
determination of whether reinstatement is inappropriate in a given case 
is best made on the basis of the facts of each case and the relevant 
case law, and thus it is not necessary in these procedural rules to 
define the circumstances in which reinstatement is not a proper remedy. 
This amendment also makes these procedural regulations consistent with 
the rules under STAA, NTSSA, FRSA, and CPSIA, which do not contain this 
statement.
    SCSGP, EEAC, and Marshall commented on this removal, as well as on 
the overall guidance provided when determining whether preliminary 
reinstatement is appropriate. SCSGP commented that the IFR lacked ``any 
standards governing the issuance of preliminary reinstatement orders'' 
and that the rule should contain appropriate safeguards that 
preliminary reinstatement is warranted under the circumstances, rather 
than presuming that reinstatement is proper. SCSGP suggested that OSHA 
include in the final rule a list of non-exhaustive factors to be 
considered by the courts to determine when reinstatement is 
appropriate, including whether hostility exists between the employee 
and the company, and whether the employee's position no longer exists. 
EEAC ``urge[d] OSHA to reinstate this `security risk' exception'' in 
the final rule. EEAC also submitted that OSHA's reasoning for

[[Page 11873]]

removing the exception is flawed (that the determination of whether 
reinstatement is inappropriate in a given case should be based on the 
factual circumstances of that case). EEAC first pointed to Sarbanes-
Oxley's incorporation of the AIR21 rules and procedures and that the 
security risk exception is consistent with OSHA's whistleblower 
regulations promulgated under AIR21. EEAC also noted that the security 
risk exception was predicated on the respondent establishing that the 
complainant is in fact a security risk prior to the exception taking 
effect and thus would be determined on a case-by-case basis in this 
manner. Marshall wrote in support of the removal of the security risk 
language and supported the explanation that determinations of whether 
reinstatement is appropriate should be based on the facts of the 
particular case. Marshall noted that the Act itself does not contain 
any statutory prohibition of reinstatement under certain circumstances.
    OSHA disagrees that the rule requires any further guidance on when 
preliminary reinstatement is appropriate. First, OSHA emphasizes that 
Congress intended that employees be preliminarily reinstated to their 
positions if OSHA finds reasonable cause to believe that they were 
discharged in violation of Sarbanes-Oxley, thus creating the 
presumption it is the appropriate remedy. Neither Sarbanes-Oxley nor 
AIR21 specify any statutorily predetermined circumstances under which 
preliminary reinstatement would be inappropriate. Furthermore, although 
the regulations governing proceedings under AIR21 reference a security 
risk exception, this exception is not in the statutory text 
incorporated by Sarbanes-Oxley. See 18 U.S.C. 1514(b)(1)(A) (. . . 
shall be governed ``under the rules and procedures set forth in section 
42121(b) of title 49, United States Code.''). This reference to AIR21's 
statutory procedures does not impose an obligation for OSHA to also 
incorporate any procedural regulations promulgated under AIR21 not 
mandated by the statute.
    OSHA agrees that there may be circumstances where preliminary 
reinstatement is inappropriate. However, OSHA believes that the rule as 
drafted provides sufficient safeguards for these situations, as well as 
sufficient guidance to OSHA, ALJs, and the ARB as to when those 
safeguards may be appropriate. First, the rule provides the ALJ and ARB 
discretion to grant a stay of an order of preliminary reinstatement 
(See Sections 1980.106(b) and 1980.110(b)). As discussed in detail in 
the discussion of Section 1980.106, ALJs and the ARB can refer to long-
standing precedential case law in making this determination. Second, in 
appropriate circumstances, OSHA may order economic reinstatement in 
lieu of actual reinstatement, which is also discussed in detail below. 
In Hagman v. Washington Mutual Bank, Inc., the ALJ delineated several 
factors to consider when making this determination. ALJ No. 2005-SOX-
73, 2006 WL 6105301, at *32 (Dec. 19, 2006) (noting that while 
reinstatement is the ``preferred and presumptive remedy'' under 
Sarbanes-Oxley, ``[f]ront pay may be awarded as a substitute when 
reinstatement is inappropriate due to: (1) An employee's medical 
condition that is causally related to her employer's retaliatory 
action; (2) manifest hostility between the parties; (3) the fact that 
claimant's former position no longer exists; or (4) the fact that 
employer is no longer in business at the time of the decision'') 
(internal citations omitted). Many of these factors are similar to the 
factors SCSGP suggested be included in the rule. Thus, given the 
existing safeguards in place and sufficient guidance for when such 
safeguards are appropriate, OSHA declines to include the security risk 
exception in the final rule and declines to add additional guidance to 
the rule for when preliminary reinstatement is appropriate.
    As mentioned above, in appropriate circumstances, in lieu of 
preliminary reinstatement, OSHA may order that the complainant receive 
the same pay and benefits that he received prior to his termination, 
but not actually return to work. Such ``economic reinstatement'' is 
akin to an order of front pay and is frequently employed in cases 
arising under Section 105(c) of the Federal Mine Safety and Health Act 
of 1977, which protects miners from retaliation. 30 U.S.C. 815(c); see, 
e.g., Sec'y of Labor on behalf of York v. BR&D Enters., Inc., 23 FMSHRC 
697, 2001 WL 1806020, at *1 (June 26, 2001). Front pay has been 
recognized as a possible remedy in cases under Sarbanes-Oxley and other 
whistleblower statutes enforced by OSHA in circumstances where 
reinstatement would not be appropriate. See, e.g., Hagman, 2006 WL 
6105301; Hobby v. Georgia Power Co., ARB Nos. 98-166, 98-169 (ARB Feb. 
9, 2001), aff'd sub nom. Hobby v. U.S. Dept. of Labor, No. 01-10916 
(11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances where 
front pay may be available in lieu of reinstatement but ordering 
reinstatement); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 
2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (same). Congress 
intended that employees be preliminarily reinstated to their positions 
if OSHA finds reasonable cause to believe that they were discharged in 
violation of Sarbanes-Oxley. 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 immediate 
reinstatement is inadvisable for some reason, notwithstanding the 
employer's retaliatory discharge of the employee. In such situations, 
actual reinstatement might be delayed until after the administrative 
adjudication is completed as long as the employee 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 an employee 
should the employer ultimately prevail in the whistleblower 
adjudication.
    SCSGP and Marshall commented on the issue of economic 
reinstatement. Marshall commented that the inclusion of the above 
language in the preamble is of ``crucial significance for 
whistleblowers,'' but continued that OSHA's recognition that actual 
reinstatement remains the presumptive remedy is ``essential as well.'' 
Marshall explained that ``[a]ctual reinstatement protects interests 
that economic reinstatement cannot. Nonetheless, economic reinstatement 
must be available as a remedy for situations where a whistleblower 
cannot return to the workplace.''
    SCSGP addressed the issue of allowing an employer to recover the 
costs of economically reinstating an employee should the employer 
ultimately prevail in the whistleblower adjudication. SCSGP believes 
OSHA's interpretation, that there is no statutory basis for allowing 
such reimbursement, ``compromises an employer's due process rights'' 
and raises other concerns. SCSGP commented that conversely there is 
``no statutory basis for allowing the employee to keep the value of 
economic reinstatement where his or her claim is unfounded.'' SCSGP 
noted that in situations where economic reinstatement is awarded, an 
employer may have to pay both the labor cost of filling the position, 
and the cost of the economic reinstatement awarded to the complainant. 
Where the employer ultimately prevails, it would not recover

[[Page 11874]]

the duplicative cost, an outcome which SCSGP believes is grossly 
unfair. SCSGP recommended that OSHA include an additional paragraph in 
this section, allowing that economic reinstatement be available only 
upon consent of all parties, or upon the condition that the complainant 
will reimburse the employer in the event the employer ultimately 
prevails.
    OSHA disagrees that economic reinstatement without a mechanism for 
reimbursement violates the employer's rights under the Due Process 
clause. The Supreme Court has addressed the issue of what is required 
to afford an employer procedural due process prior to ordering 
preliminary reinstatement in Brock v. Roadway Express, Inc., 481 U.S. 
252 (1987). In Roadway Express, the Court held that ``minimum due 
process for the employer in this context requires notice of the 
employee's allegations, notice of the substance of the relevant 
supporting evidence, an opportunity to submit a written response, and 
an opportunity to meet with the investigator and present statements 
from rebuttal witnesses.'' Id. at 264. The Court did not require any 
mechanism for reimbursing the employer for wages paid during actual 
preliminary reinstatement should the employer ultimately prevail in the 
litigation. Because economic reinstatement is akin to actual 
reinstatement, OSHA believes the same requirements apply when ordering 
economic reinstatement.
    Furthermore, OSHA disagrees that there is no statutory basis for 
precluding reimbursement of economic reinstatement. As discussed above, 
Congress intended that employees be preliminarily reinstated to their 
positions if OSHA finds reasonable cause to believe that they were 
discharged in violation of Sarbanes-Oxley. However, the statutory 
procedural scheme does not allow for reimbursement to the employer if 
actual preliminary reinstatement was ordered and yet the employer 
ultimately prevailed. Thus, there is no statutory basis to reimburse an 
employer in that instance. Because economic reinstatement is a 
substitute for preliminary reinstatement, this same reasoning would 
apply for not awarding an employer reimbursement for any front pay the 
employee receives should the employer ultimately prevail. OSHA 
therefore declines to allow for such reimbursement where Congress has 
not so provided.
Subpart B--Litigation
Section 1980.106 Objections to the Findings and the Preliminary Order 
and Request for a Hearing
    To be effective, objections to the findings of the Assistant 
Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, within 30 days of 
receipt of the findings. The date of the postmark, facsimile 
transmittal, 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 also is considered a request for a hearing before 
an ALJ. Although the parties are directed to serve a copy of their 
objections on the other parties of record, as well as the OSHA official 
who issued the findings and order, the Assistant Secretary, and the 
Department of Labor's Associate Solicitor for Fair Labor Standards, the 
failure to serve copies of the objections on the other parties of 
record 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., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). 
Throughout this section, minor changes were made as needed to clarify 
the provision without changing its meaning.
    The IFR revised paragraph (b) to note that a respondent's motion to 
stay the Assistant Secretary's preliminary order of reinstatement will 
be granted only based on exceptional circumstances. This revision 
clarified that a stay is only available in ``exceptional 
circumstances,'' because the Secretary believes that a stay of the 
Assistant Secretary's preliminary order of reinstatement under 
Sarbanes-Oxley would be appropriate only where the respondent can 
establish the necessary criteria for equitable injunctive relief, i.e., 
irreparable injury, likelihood of success on the merits, and a 
balancing of possible harms to the parties, and the public interest 
favors a stay.
    SCSGP, EEAC, and Marshall commented on this section. Marshall wrote 
in support of this revision, noting that ``[p]reliminary reinstatement 
protects a number of important values; it should be ordered and 
enforced unless the respondent is able to make a credible and 
persuasive showing that these values are overwhelmed.'' SCSGP and EEAC 
requested that OSHA provide additional guidance regarding when a stay 
of an order for preliminary reinstatement would be appropriate. SCSGP 
suggested that OSHA modify paragraph (b) to provide ``meaningful 
standards governing when an ALJ should stay a preliminary order of 
reinstatement.'' SCSGP's comment included concerns that the current 
standard, based on ``exceptional circumstances,'' may unduly constrain 
the ALJ's discretion and authority, as well as leave the ALJ without 
guidance as to when a stay is appropriate. EEAC commented that in its 
view, the term ```exceptional circumstances' implies a limitation far 
narrower than OSHA says that it intends.'' EEAC recommended that the 
language in the preamble referring to the requirements to obtain 
equitable injunctive relief be added to the regulatory text. EEAC also 
suggested this addition to Section 1980.110(b), which covers appeals to 
the ARB.
    It is well established that the standard for a stay of preliminary 
reinstatement is the standard needed to obtain a preliminary 
injunction. A party must prove: Likely irreparable injury; likelihood 
of success on the merits; the balancing of hardships favors an 
injunction; and the public interest favors an injunction. Johnson v. 
U.S. Bancorp, ARB No. 13-014, 2013 WL 2902820, at *2 (ARB May 21, 
2013); see also Evans v. T-Mobil USA, Inc., ALJ No. 2012-SOX-00036 (ALJ 
May 21, 2013) (granting stay of reinstatement). This traditional four-
element test is applied in all federal courts. See Winter v. N.R.D.C., 
555 U.S. 7, 20 (2008). The Department's ALJs and ARB have also applied 
this standard in a number of cases prior to the issuance of the IFR. 
See, e.g., Welch v. Cardinal Bankshares Corp., No. 06-062, 2006 WL 
3246902 (ARB Mar. 31, 2006); Bechtel and Jacques v. Competitive 
Technologies, Inc., ALJ Nos. 2005-SOX-0033, 2005-SOX-0034, 2005 WL 
4888999 (ALJ Mar. 29, 2005). The regulation and its preamble, existing 
ALJ and ARB decisions, and other federal case law clearly delineate the 
standard for a successful motion to stay a preliminary order of 
reinstatement. OSHA thus declines to provide further guidance on this 
issue.
    EEAC also commented that there may be situations in which the 
complainant does not desire reinstatement, preliminary or otherwise. 
EEAC suggested the final rule contain language addressing this 
situation, allowing for the parties to come to an agreement to not 
order reinstatement. OSHA declines to include such language in this 
rule. Under Sarbanes-Oxley, reinstatement of the complainant to his or 
her former position is the presumptive remedy in merit cases and is a 
critical component of making the complainant whole. As Marshall notes 
in his comment, actual reinstatement

[[Page 11875]]

protects interests that economic reinstatement cannot so effectively 
address. For example, reinstatement serves to reassure other employees 
through the complainant's presence in the workplace that they too will 
be protected from retaliation for reporting violations of the law. By 
ordering preliminary reinstatement in cases involving discharge where 
OSHA has reasonable cause to believe that a statutory violation has 
occurred, OSHA properly places the burden upon the employer to make a 
bona fide offer of reinstatement. In doing so, OSHA also ensures that 
the employee is not forced to make a decision about whether he or she 
wants to return to the workplace until the employer actually makes such 
an offer.
Section 1980.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
as set forth in 29 CFR part 18 subpart A. Hearings are 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. ALJs continue to have broad discretion to limit discovery where 
necessary to expedite the hearing. Formal rules of evidence will not 
apply, but rules or principles designed to assure production of the 
most probative evidence will be applied. The administrative law judge 
may exclude evidence that is immaterial, irrelevant, or unduly 
repetitious. Throughout this section, minor changes were made as needed 
to clarify the provision without changing its meaning.
    NWC commented in part on this section, requesting language be added 
to further protect the confidentiality of complainants. The discussion 
of the agency's consideration of this comment is included in the 
discussion of Section 1980.104, above.
Section 1980.108 Role of Federal Agencies
    The Assistant Secretary, at his or her discretion, may participate 
as a party or amicus curiae at any time in the administrative 
proceedings under Sarbanes-Oxley. For example, the Assistant Secretary 
may exercise his or her discretion to prosecute the case in the 
administrative proceeding before an ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although OSHA anticipates that ordinarily the Assistant Secretary will 
not participate, the Assistant Secretary may choose to do so in 
appropriate cases, such as cases involving important or novel legal 
issues, multiple employees, alleged violations that appear egregious, 
or where the interests of justice might require participation by the 
Assistant Secretary. The Securities and Exchange Commission, if 
interested in a proceeding, also may participate as amicus curiae at 
any time in the proceedings.
    No comments were received on this section. However, paragraph 
(a)(2) has been revised to specify that parties must send copies of 
documents to OSHA and to the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor, only upon request of OSHA, 
or when OSHA is participating in the proceeding, or when service on 
OSHA and the Associate Solicitor is otherwise required by these rules. 
Other minor changes were made as needed to clarify the provision 
without changing its meaning.
Section 1980.109 Decision and Orders of the Administrative Law Judge
    This section sets forth the requirements for the content of the 
decision and order of the ALJ, and includes the standard for finding a 
violation under Sarbanes-Oxley. Specifically, the complainant must 
demonstrate (i.e. prove by a preponderance of the evidence) that the 
protected activity was a ``contributing factor'' in the adverse action. 
See, e.g., Allen, 514 F.3d at 475 n.1 (``The term `demonstrates' means 
to prove by a preponderance of the evidence.''). If the employee 
demonstrates that the alleged protected activity was a contributing 
factor in the adverse action, the employer, to escape liability, must 
demonstrate by ``clear and convincing evidence'' that it would have 
taken the same action in the absence of the protected activity. See id.
    Paragraph (c) provides that OSHA's determination to dismiss the 
complaint without an investigation or without a complete investigation 
pursuant to Section 1980.104 is not subject to review. Thus, Section 
1980.109(c) clarifies that OSHA's determinations on whether to proceed 
with an investigation under Sarbanes-Oxley and whether to make 
particular investigative findings are discretionary decisions not 
subject to review by the ALJ. The ALJ hears cases de novo and, 
therefore, as a general matter, may not remand cases to OSHA to conduct 
an investigation or make further factual findings. Paragraph (c) also 
clarifies that the ALJ can dispose of a matter without a hearing if the 
facts and circumstances warrant. In its comments, EEAC expressed 
support for this clarification.
    Paragraph (d) notes the remedies that the ALJ may order under the 
Act and provides that interest on back pay will be calculated using the 
interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 
and will be compounded daily. Paragraph (d) has been revised to note 
that when back pay is ordered, the order will also require the 
respondent to submit appropriate documentation to the Social Security 
Administration allocating any back pay award to the appropriate 
calendar quarters. Paragraph (e) requires that the ALJ's decision be 
served on all parties to the proceeding, the Assistant Secretary, and 
the U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards. Paragraph (e) also provides that any ALJ 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. 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 ARB.
    No comments were received on this section. However, the statement 
that the decision of the ALJ will become the final order of the 
Secretary unless a petition for review is timely filed with the ARB and 
the ARB accepts the petition for review was deleted from Section 
1980.110(a) and moved to paragraph (e) of this section. Additionally, 
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 the federal courts 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

[[Page 11876]]

of time for filing a petition for review before the ALJ's order becomes 
final.
    Other minor changes were made as needed to clarify the provision 
without changing its meaning.
Section 1980.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 14 days 
within which to petition the ARB for review of that decision. If no 
timely petition for review is filed with the ARB, the decision of the 
ALJ becomes the final decision of the Secretary and is not subject to 
judicial review. The date of the postmark, facsimile transmittal, or 
electronic communication transmittal is considered the date of filing 
of the petition; if the petition is filed in person, by hand delivery 
or other means, the petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the 
ARB is not a matter of right but is accepted at the discretion of the 
ARB. 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. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. If a 
timely petition for review is filed with the ARB, any relief ordered by 
the ALJ, except for that portion ordering reinstatement, is inoperative 
while the matter is pending before the ARB. When the ARB accepts a 
petition for review, the ALJ's factual determinations will be reviewed 
under the substantial evidence standard.
    This section also provides that, based on exceptional 
circumstances, the ARB may grant a motion to stay an ALJ's preliminary 
order of reinstatement under the Act, which otherwise would be 
effective, while review is conducted by the ARB. The Secretary believes 
that a stay of an ALJ's preliminary order of reinstatement under 
Sarbanes-Oxley would be appropriate only where the respondent can 
establish the necessary criteria for equitable injunctive relief, i.e., 
irreparable injury, likelihood of success on the merits, a balancing of 
possible harms to the parties, and the public interest favors a stay. 
The EEAC's comment regarding guidance on when a stay of preliminary 
reinstatement is appropriate addressed this provision of the rule, as 
well Section 1980.106(b). OSHA's response to this comment is explained 
in detail above, in the discussion of Section 1980.106.
    If the ARB concludes that the respondent has violated the law, it 
will order the remedies listed in paragraph (d). Interest on back pay 
will be calculated using the interest rate applicable to underpayment 
of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph 
(d) has been revised to note that when back pay is ordered, the order 
will also require the respondent to submit appropriate documentation to 
the Social Security Administration allocating any back pay award to the 
appropriate calendar quarters. If the ARB determines that the 
respondent has not violated the law, an order will be issued denying 
the complaint.
    NWC requested that the agency make several revisions to this 
section that would ``further the goal of deciding cases on their 
merits.'' The requested revisions included: (1) Change the time limit 
for a petition for review from 10 days to 30 days; (2) require that a 
petition for review set forth legal issues showing good cause to allow 
full briefing; (3) change the provision that objections to legal 
conclusions not raised in petitions for review ``will ordinarily'' be 
deemed waived, to ``may'' be deemed waived; and (4) specify in the 
regulation that the ARB may extend the time to submit petitions for 
review upon good cause shown. NWC stated that these revisions would 
``advance the remedial purposes of the Act by lowering the procedural 
hurdles to a decision on the merits.''
    OSHA first notes that the IFR did use the phrase ``may'' be deemed 
waived regarding objections not specifically raised in a petition for 
review. This change was made as a result of comments submitted by NWC 
on other whistleblower rules published by OSHA. See, e.g., Procedures 
for the Handling of Retaliation Complaints Under Section 219 of the 
Consumer Product Safety Improvement Act of 2008, 77 FR 40494, 40500-01 
(July 10, 2012); Procedures for the Handling of Retaliation Complaints 
Under the Employee Protection Provision of the Surface Transportation 
Assistance Act of 1982 (STAA), as Amended, 77 FR 44121, 44131-32 (July 
27, 2012).
    However, OSHA declines to adopt NWC's additional suggestions 
relating to this section. First, OSHA declines to extend the time limit 
to petition for review because the shorter review 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. In addition, Section 
1980.110(c), which provides that the ARB will issue a final decision 
within 120 days of the conclusion of the ALJ hearing, was similarly 
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 
1980.110(a), this revision does not substantively alter the length of 
time before the ALJ hearing will be deemed to have been concluded.
    Finally, OSHA believes that use of the word ``may,'' as discussed 
above, adequately addresses NWC's underlying concern that grounds not 
raised in a petition for review may be barred from consideration before 
the ARB.
    Non-substantive changes were made to paragraph (c) of this section 
to clarify when all hearings before an ALJ are considered concluded, 
and thus when the time for the ARB to issue a final decision begins to 
run.
Subpart C--Miscellaneous Provisions
Section 1980.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement
    This section provides the procedures and time periods for 
withdrawal of complaints, the withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and the withdrawal of objections to 
findings and/or orders. It also provides for approval of settlements at 
the investigative and adjudicative stages of the case. No comments were 
received on this section. Minor changes were made as needed to this 
section and section title to clarify the provision without changing its 
meaning.
Section 1980.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, that the ARB or the ALJ submit the record of 
proceedings to the appropriate court pursuant to the rules of such 
court.
    Mr. Levi commented on this section, stating that paragraph (b) 
created a new rule. Paragraph (b) provided, ``A final order of the ARB 
is not subject to judicial review in any criminal or other

[[Page 11877]]

civil proceeding.'' As explained in the IFR, no new rules were added to 
this section; rather, the section was simply reorganized and 
renumbered. The 2004 version of the rule concluded paragraph (a) with 
the sentence, ``A final order of the Board is not subject to judicial 
review in any criminal or other civil proceeding.'' This sentence 
implemented the statutory provision found at 49 U.S.C. 42121(b)(4)(B), 
``Limitation on Collateral Attack,'' adopted by the Act, which 
provides, ``[a]n order of the Secretary of Labor with respect to which 
review could have been obtained under subparagraph (A) shall not be 
subject to judicial review in any criminal or other civil proceeding.'' 
This sentence was moved to be a stand-alone provision in paragraph (b) 
of the IFR. The word ``Board'' was changed to ``ARB;'' however, both 
designations refer to the same body (Administrative Review Board). The 
old paragraph (b) was then renumbered to paragraph (c) in the IFR. The 
text of this paragraph was also slightly revised, as discussed in the 
preamble to the IFR, to clarify that ``rules of the court'' refers to 
the Federal Rules of Appellate Procedure and local rules of the 
relevant federal court of appeals. Most of these non-substantive 
revisions have been adopted in this final rule. Paragraph (c) of the 
final rule has been revised to provide that ``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.'' This 
revision simply reflects that in some instances the ALJ, and not the 
ARB, will have possession of the record to be reviewed in the U.S. 
court of appeals.
    However, upon further review of the statutory language, OSHA has 
revised paragraph (b) in the final rule to more accurately reflect the 
statutory provisions found in AIR21, adopted by Sarbanes-Oxley. The 
rule as written previously and in the IFR referred only to limitation 
on collateral attack of final orders of the ARB. AIR21's limitation on 
collateral attacks applies to all final orders of the Secretary. 49 
U.S.C. 42121(b)(4)(A)-(B). Thus, paragraph (b) has been revised 
accordingly.
Section 1980.113 Judicial Enforcement
    This section describes the Secretary's power under Sarbanes-Oxley 
to obtain judicial enforcement of orders and the terms of a settlement 
agreement. While some courts have declined to enforce preliminary 
orders of reinstatement under Sarbanes-Oxley, the Secretary's 
consistent position has been that such orders are enforceable in 
federal district court. See Solis v. Tenn. Commerce Bancorp, Inc., No. 
10-5602 (6th Cir. 2010) (order granting stay of preliminary 
injunction); Bechtel v. Competitive Technologies, Inc., 448 F.3d 469 
(2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 
(W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th 
Cir. Feb. 20, 2008)). See also Brief for the Intervenor/Plaintiff-
Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 
10-5602 (6th Cir. 2010); Brief for the Intervenor/Plaintiff-Appellant 
United States of America, Welch v. Cardinal Bankshares Corp., No. 06-
2295 (4th Cir. Feb. 20, 2008); Brief for the Intervenor/Plaintiff-
Appellee Secretary of Labor, Bechtel v. Competitive Technologies, Inc., 
448 F.3d 469 (2d Cir. 2006) (No. 05-2402).
    In its comments, SCSGP asserted that ``this position is directly at 
odds with the express language of the statute and the federal court 
decisions that have addressed this issue. . . .'' In support of its 
position, SCSGP cited the above decisions in Solis, Bechtel, and Welch. 
However, as noted by Marshall in its comment, an inspection of these 
cases shows that none of these decisions held by a majority that 
federal courts lack jurisdiction to enforce preliminary orders of 
reinstatement. In Bechtel, the Second Circuit vacated the preliminary 
order of reinstatement but failed to agree on a basis for which to do 
so. 448 F.3d at 476. In the three-judge panel, one judge found that the 
court lacked jurisdiction to enforce the order, thus holding to vacate 
the order. Id. at 470-76. A second judge found that the order could not 
be enforced on separate, due process grounds, and concurred in the 
result on this basis. Id. at 476-81. The third judge dissented from the 
result and found that the court did have jurisdiction to enforce orders 
of preliminary reinstatement. Id. at 483-90. Additionally, in Solis, 
the Sixth Circuit applied traditional injunctive relief standards 
(``balancing of the harms'') to grant a stay of a preliminary order of 
reinstatement and thus did not reach the jurisdictional issue on the 
merits. No. 10-5602, slip op. at 2 (6th Cir. May 25, 2010). Finally, in 
Welch, the district court granted the defendant's motion to dismiss the 
complainant's enforcement proceeding because the ALJ's opinion did not 
make clear whether he was ordering preliminary reinstatement, as 
opposed to simply recommending reinstatement. 407 F. Supp. 2d at 776-
77. The court in Welch specifically noted that it was ``unnecessary to 
consider whether it would have had the authority to enforce the 
preliminary order of reinstatement had such an order been properly 
entered.'' Id. at 777 n.2. Therefore, the Secretary's position is not 
at odds with the federal courts that have addressed this issue, as none 
has reached the issue on the merits with a majority of the court.
    Additionally, the Secretary's position is consistent with the plain 
language of the statute. By incorporating the procedures of AIR21, 
Sarbanes-Oxley authorizes district courts to enforce orders, including 
preliminary orders of reinstatement, issued by the Secretary under the 
Act. See 18 U.S.C. 1514A(b)(2)(A) (adopting the rules and procedures 
set forth in AIR21, 49 U.S.C. 42121(b)). Under 49 U.S.C. 42121(b), 
which provides the procedures applicable to investigations of 
whistleblower complaints under Sarbanes-Oxley, the Secretary must 
investigate complaints under the Act and determine whether there is 
reasonable cause to believe that a violation has occurred. ``[I]f the 
Secretary of Labor concludes that there is a reasonable cause to 
believe that a violation . . . has occurred, the Secretary shall 
accompany the Secretary's findings with a preliminary order providing 
the relief prescribed by paragraph (3)(B),'' which includes 
reinstatement of the complainant to his or her former position. 49 
U.S.C. 42121(b)(2)(A) and (b)(3)(B)(ii). The respondent may file 
objections to the Secretary's preliminary order and request a hearing. 
However, the filing of such objections ``shall not operate to stay any 
reinstatement remedy contained in the preliminary order.'' 49 U.S.C. 
42121(b)(2)(A).
    Paragraph (5) of 49 U.S.C. 42121(b) provides for judicial 
enforcement of the Secretary's orders, including preliminary orders of 
reinstatement. That paragraph states ``[w]henever any person has failed 
to comply with an order issued under paragraph (3), the Secretary of 
Labor may file a civil action in the United States district court for 
the district in which the violation was found to occur to enforce such 
order. In actions brought under this paragraph, the district courts 
shall have jurisdiction to grant all appropriate relief including, but 
not limited to, injunctive relief and compensatory damages.'' 49 U.S.C. 
42121(b)(5). Preliminary orders that contain the relief of 
reinstatement prescribed by paragraph (3)(B) are judicially enforceable 
orders, issued under paragraph (3). Brief for the Intervenor/Plaintiff-
Appellee Secretary

[[Page 11878]]

of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602, at 23-25 
(6th Cir. 2010).
    This analysis is not altered by the fact that paragraph (3) bears 
the heading ``Final Order.'' SCSGP asserted that this title and 
paragraph (5)'s reference to only paragraph (3) provides clear and 
unmistakable language that preliminary orders are not final orders 
enforceable under paragraph (3). However, sections of a statute should 
not be read in isolation, but rather in conjunction with the provisions 
of the entire Act, considering both the object and policy of the Act. 
See, e.g., Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 162 
(4th Cir. 1998), aff'd, 529 U.S. 120 (2000). See also United States v. 
Buculei, 262 F.3d 322, 331 (4th Cir. 2001) (a statute's title cannot 
limit the plain meaning of its text), cert. denied, 535 U.S. 962 
(2002). Focusing on the title to subsection (b)(3) instead of reading 
section 42121(b) as a coherent whole negates the congressional 
directives that preliminary reinstatement must be ordered upon a 
finding of reasonable cause and that such orders not be stayed pending 
appeal. 49 U.S.C. 42121(b)(2)(A)'s clear statement that objections 
shall not stay any preliminary order of reinstatement demonstrates 
Congress's intent that the Secretary's preliminary orders of 
reinstatement be immediately effective. Reading 49 U.S.C. 42121(b)(5) 
to allow enforcement of such orders is the only way to effectuate this 
intent.
    Furthermore, the Secretary's interpretation is buttressed by the 
legislative history of Sarbanes-Oxley and AIR21. Before Congress 
enacted Sarbanes-Oxley, the Department of Labor had interpreted this 
AIR21 provision to permit judicial enforcement of preliminary 
reinstatement orders. Accordingly, Congress is presumed to have been 
aware of the Department's interpretation of 49 U.S.C. 42121(b)(5) and 
to have adopted that interpretation when it incorporated that provision 
by reference. See Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) 
(``[W]here . . . Congress adopts a new law incorporating sections of a 
prior law, Congress normally can be presumed to have had knowledge of 
the interpretation given to the incorporated law, at least insofar as 
it affects the new statute.''). The Secretary's interpretation is 
further supported by the legislative history of AIR21, which makes 
clear that Congress regarded preliminary reinstatement as crucial to 
the protections provided in the statute. Brief for the Intervenor/
Plaintiff-Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, 
Inc., No. 10-5602, at 41-44 (6th Cir. 2010) (reviewing legislative 
history of AIR21). Interpreting 49 U.S.C. 42121(b)(5) to permit 
judicial enforcement of the Secretary's preliminary orders of 
reinstatement is necessary to carry out Congress' clearly expressed 
intent that whistleblowers be immediately reinstated upon the 
Secretary's finding of reasonable cause to believe that retaliation has 
occurred. Sarbanes-Oxley also permits the person on whose behalf the 
order was issued under Sarbanes-Oxley to obtain judicial enforcement of 
orders and the terms of a settlement agreement. 18 U.S.C. 
1514A(b)(2)(A) incorporating 49 U.S.C. 42121(b)(6). Accordingly, OSHA 
declines to make the changes to this section suggested by SCSGP.
    OSHA has made two changes that are not intended to have substantive 
effects. First, OSHA has revised this section slightly to more closely 
parallel the provisions of the statute regarding the proper venue for 
an enforcement action. Second, the list of remedies that formerly 
appeared in this section has been moved to Section 1980.114. This 
revision does not reflect a change in the Secretary's views regarding 
the remedies that are available under Sarbanes-Oxley in an action to 
enforce an order of the Secretary. The revision has been made to better 
parallel the statutory structure of Sarbanes-Oxley and AIR21, which 
contemplate enforcement of a Secretary's order and specify the remedies 
that are available in an action for de novo review of a retaliation 
complaint in district court. Compare 49 U.S.C. 42121(b)(5) and (6) to 
18 U.S.C. 1514A(c).
Section 1980.114 District Court Jurisdiction Over Retaliation 
Complaints
    This section sets forth Sarbanes-Oxley's provisions allowing a 
complainant to bring an original de novo action in district court, 
alleging the same allegations contained in the complaint filed with 
OSHA, if there has been no final decision of the Secretary within 180 
days of the filing of the complaint. It is the Secretary's position 
that complainants may not initiate an action in federal court after the 
Secretary issues a final decision, even if the date of the final 
decision is more than 180 days after the filing of the complaint. 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.
    OSHA received two comments on the inclusion of this statement of 
the Secretary's position in the preamble to the IFR. Mr. Levi wrote in 
opposition to this language, while the EEAC wrote in support of this 
language, and requested that it be inserted into the regulatory text. 
Mr. Levi noted his belief that this position is in conflict with the 
rule itself, which allows complainants to ``kick-out'' under the 
specified circumstances. To support his position, Mr. Levi quoted from 
the preamble to the 2004 version of the rules. In that preamble, the 
agency stated, and Mr. Levi quoted, ``The Act might even be interpreted 
to allow a complainant to bring an action in Federal court after 
receiving a final decision from the Board, if that decision was issued 
more than 180 days after the filing of the complaint.'' 69 FR 
52111(Aug. 24, 2004). The 2004 preamble used the words ``might even'' 
to denote that this is a possible interpretation of the language. 
However, in that preamble, the agency went on to state, ``The Secretary 
believes that it would be a waste of the resources of the parties, the 
Department, and the courts for complainants to pursue duplicative 
litigation.'' Id. The language in the preamble to the 2011 IFR, 
continued and retained above, simply asserts the Secretary's 
longstanding position, which is consistent with the statute, the 2004 
rule, the 2004 preamble language, and the 2011 rule, that once a 
complainant has received a final decision from the Secretary, the goal 
of the ``kick-out'' provision is no longer implicated.
    Mr. Levi also commented that this position creates an impediment to 
a complainant's right to access the federal district courts, and forces 
the complainant to give up one right or another: Access to the ARB or 
access to the district courts. However, as discussed above, the 
Secretary believes that access to district courts under this provision 
is intended to provide the complainant with a speedy adjudication of 
his complaint; it is not intended to create two simultaneous 
proceedings or a de novo review of an unfavorable determination by the 
Secretary. Congress provided a clear avenue for review in federal 
courts of a final order. As provided in Section 1980.112, either party 
aggrieved by a final order of the ALJ or ARB may still appeal to the 
federal courts of appeals. The Secretary's position does not adversely 
affect this right, but rather is intended

[[Page 11879]]

to prevent interference with this right. Therefore, after considering 
Mr. Levi and EEAC's comments, the agency has decided to retain the 
language in the preamble to the rule, but refrain from adding it to the 
regulatory text.
    The IFR amended paragraph (b) of this section to require 
complainants to provide file-stamped copies of their complaint within 
seven days after filing a complaint in district court to the Assistant 
Secretary, the ALJ, or the ARB, depending on where the proceeding is 
pending, rather than requiring such notice fifteen days in advance of 
such filing. The IFR noted a copy of the complaint also must be 
provided to the Regional Administrator, the Assistant Secretary, and 
the Associate Solicitor, Division of Fair Labor Standards, 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. These 
revisions are continued in this final rule. However, OSHA has replaced 
the requirement of providing a copy of the complaint to the Regional 
Administrator with a requirement that a copy be provided to the ``OSHA 
official who issued the findings and/or preliminary order.'' This non-
substantive change is intended to reflect that an official other than 
the Regional Administrator may be the official who issued the findings 
and/or preliminary order.
    The NWC noted its appreciation for this revision to the rule, and 
suggested that ``[t]he Department's wise policy on notice . . . should 
now be replicated in the Department's regulations under other 
whistleblower protection laws.'' OSHA is conducting several rulemakings 
for whistleblower proceedings at this time and intends to include this 
revised notice provision where applicable.
    In addition to the changes noted above, OSHA has revised this 
section to clarify the provision and more closely mirror the language 
used in the statute. For example, paragraph (b) now incorporates the 
provisions of the statute specifying the remedies and burdens of proof 
in a district court action.
Section 1980.115 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 notice to the parties, waive any rule as justice or the 
administration of Sarbanes-Oxley requires. No comments were received on 
this section.

IV. Paperwork Reduction Act.

    This rule contains a reporting provision (filing a retaliation 
complaint, Section 1980.103) 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 (Pub. L. 104-13). The 
assigned OMB control number is 1218-0236.

V. 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 1980 sets forth 
interpretive rules and rules of agency procedure and practice within 
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 1980 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 not be effective until at least 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. Most 
of the provisions of this rule were in the IFR and have already been in 
effect since November 3, 2011, so a delayed effective date is 
unnecessary.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 
1995; Executive Order 13132

    The Department 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: (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 economic impact analysis under Section 6(a)(3)(C) 
of Executive Order 12866 has been prepared. For the same reason, and 
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).

VII. Regulatory Flexibility Analysis

    The notice and comment rulemaking procedures of Section 553 of the 
APA do not apply ``to interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' 5 
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment 
requirements are also exempt from the Regulatory Flexibility Act (RFA). 
See SBA Office of Advocacy, A Guide for Government Agencies: How to 
Comply with the Regulatory Flexibility Act 9 (May 2012); also found at: 
http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf*. This is a 
rule of agency procedure, practice, and interpretation within the 
meaning of that section; and therefore the rule is exempt from both the 
notice and comment rulemaking procedures of the APA and the 
requirements under the RFA.

List of Subjects in 29 CFR Part 1980

    Administrative practice and procedure, Corporate fraud, Employment, 
Investigations, Reporting and recordkeeping requirements, 
Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of David

[[Page 11880]]

Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational 
Safety and Health.

    Signed at Washington, DC on February 25, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
    Accordingly, for the reasons set out in the preamble, 29 CFR part 
1980 is revised to read as follows:

PART 1980--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS 
UNDER SECTION 806 OF THE SARBANES-OXLEY ACT OF 2002, AS AMENDED.

Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec:
1980.100 Purpose and scope.
1980.101 Definitions.
1980.102 Obligations and prohibited acts.
1980.103 Filing of retaliation complaints.
1980.104 Investigation.
1980.105 Issuance of findings and preliminary orders.
Subpart B--Litigation.
1980.106 Objections to the findings and the preliminary order and 
request for a hearing.
1980.107 Hearings.
1980.108 Role of Federal agencies.
1980.109 Decision and orders of the administrative law judge.
1980.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1980.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1980.112 Judicial review.
1980.113 Judicial enforcement.
1980.114 District court jurisdiction over retaliation complaints.
1980.115 Special circumstances; waiver of rules.

    Authority:  18 U.S.C. 1514A, as amended by the Dodd-Frank Wall 
Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203 
(July 21, 2010); Secretary of Labor's Order No. 01-2012 (Jan. 18, 
2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2-
2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012).

Subpart A--Complaints, Investigations, Findings and Preliminary 
Orders


Sec.  1980.100  Purpose and scope.

    (a) This part implements procedures under section 806 of the 
Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of 
the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act), enacted into 
law July 30, 2002, as amended by the Dodd-Frank Wall Street Reform and 
Consumer Protection Act of 2010, enacted into law July 21, 2010. 
Sarbanes-Oxley provides for employee protection from retaliation by 
companies, their subsidiaries and affiliates, officers, employees, 
contractors, subcontractors, and agents because the employee has 
engaged in protected activity pertaining to a violation or alleged 
violation of 18 U.S.C. 1341, 1343, 1344, or 1348, or any rule or 
regulation of the Securities and Exchange Commission, or any provision 
of Federal law relating to fraud against shareholders. Sarbanes-Oxley 
also provides for employee protection from retaliation by nationally 
recognized statistical rating organizations, their officers, employees, 
contractors, subcontractors or agents because the employee has engaged 
in protected activity.
    (b) This part establishes procedures pursuant to Sarbanes-Oxley for 
the expeditious handling of retaliation complaints made by employees, 
or by persons acting on their behalf and sets forth the Secretary's 
interpretations of the Act on certain statutory issues. These rules, 
together with those codified at 29 CFR part 18, set forth the 
procedures for submission of complaints under Sarbanes-Oxley, 
investigations, issuance of findings and preliminary orders, objections 
to findings and orders, litigation before administrative law judges, 
post-hearing administrative review, withdrawals, and settlements.


Sec.  1980.101  Definitions.

    As used in this part:
    (a) Act means section 806 of the Corporate and Criminal Fraud 
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 
2002, Pub. L. 107-204, July 30, 2002, codified at 18 U.S.C. 1514A, as 
amended by the Dodd-Frank Wall Street Reform and Consumer Protection 
Act of 2010, Pub. L. 111-203, July 21, 2010.
    (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.
    (d) Company means any company with a class of securities registered 
under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) 
or any company required to file reports under section 15(d) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any 
subsidiary or affiliate whose financial information is included in the 
consolidated financial statements of such company.
    (e) Complainant means the employee who filed a complaint under the 
Act or on whose behalf a complaint was filed.
    (f) Covered person means any company, including any subsidiary or 
affiliate whose financial information is included in the consolidated 
financial statements of such company, or any nationally recognized 
statistical rating organization, or any officer, employee, contractor, 
subcontractor, or agent of such company or nationally recognized 
statistical rating organization.
    (g) Employee means an individual presently or formerly working for 
a covered person, an individual applying to work for a covered person, 
or an individual whose employment could be affected by a covered 
person.
    (h) Nationally recognized statistical rating organization means a 
credit rating agency under 15 U.S.C. 78c(61) that:
    (1) Issues credit ratings certified by qualified institutional 
buyers, in accordance with 15 U.S.C. 78o-7(a)(1)(B)(ix), with respect 
to:
    (i) Financial institutions, brokers, or dealers;
    (ii) Insurance companies;
    (iii) Corporate issuers;
    (iv) Issuers of asset-backed securities (as that term is defined in 
section 1101(c) of part 229 of title 17, Code of Federal Regulations, 
as in effect on September 29, 2006);
    (v) Issuers of government securities, municipal securities, or 
securities issued by a foreign government; or
    (vi) A combination of one or more categories of obligors described 
in any of paragraphs (h)(1)(i) through (v) of this section; and
    (2) Is registered under 15 U.S.C. 78o-7.
    (i) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (j) Person means one or more individuals, partnerships, 
associations, companies, corporations, business trusts, legal 
representatives or any group of persons.
    (k) Respondent means the person named in the complaint who is 
alleged to have violated the Act.
    (l) Secretary means the Secretary of Labor or persons to whom 
authority under the Act has been delegated.
    (m) 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.  1980.102  Obligations and prohibited acts.

    (a) No covered person may discharge, demote, suspend, threaten, 
harass or in any other manner retaliate against, including, but not 
limited to,

[[Page 11881]]

intimidating, threatening, restraining, coercing, blacklisting or 
disciplining, any employee with respect to the employee's compensation, 
terms, conditions, or privileges of employment because the employee, or 
any person acting pursuant to the employee's request, has engaged in 
any of the activities specified in paragraphs (b)(1) and (2) of this 
section.
    (b) An employee is protected against retaliation (as described in 
paragraph (a) of this section) by a covered person for any lawful act 
done by the employee:
    (1) To provide information, cause information to be provided, or 
otherwise assist in an investigation regarding any conduct which the 
employee reasonably believes constitutes a violation of 18 U.S.C. 1341, 
1343, 1344, or 1348, any rule or regulation of the Securities and 
Exchange Commission, or any provision of Federal law relating to fraud 
against shareholders, when the information or assistance is provided to 
or the investigation is conducted by--
    (i) A Federal regulatory or law enforcement agency;
    (ii) Any Member of Congress or any committee of Congress; or
    (iii) A person with supervisory authority over the employee (or 
such other person working for the employer who has the authority to 
investigate, discover, or terminate misconduct); or
    (2) To file, cause to be filed, testify, participate in, or 
otherwise assist in a proceeding filed or about to be filed (with any 
knowledge of the employer) relating to an alleged violation of 18 
U.S.C. 1341, 1343, 1344, or 1348, any rule or regulation of the 
Securities and Exchange Commission, or any provision of Federal law 
relating to fraud against shareholders.


Sec.  1980.103  Filing of retaliation complaints.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by a covered person in violation of the Act may 
file, or have filed 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 complaints will be 
reduced to writing by OSHA. If the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any 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 
the Act occurs or after the date on which the employee became aware of 
the alleged violation of the Act, any employee who believes that he or 
she has been retaliated against in violation of the Act may file, or 
have filed 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. 
For example, OSHA may consider the time for filing a complaint 
equitably tolled if a complainant mistakenly files a complaint with the 
another agency instead of OSHA within 180 days after becoming aware of 
the alleged violation.


Sec.  1980.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
will notify the respondent of the filing of the complaint, of the 
allegations contained in the complaint, and of the substance of the 
evidence supporting the complaint. Such materials will be redacted, if 
necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, 
et seq., and other applicable confidentiality laws. OSHA will also 
notify the respondent of its rights under paragraphs (b) and (f) of 
this section and Sec.  1980.110(e). OSHA will provide an unredacted 
copy of these same materials to the complainant (or complainant's legal 
counsel, if complainant is represented by counsel) and to the 
Securities and Exchange Commission.
    (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 OSHA a written statement and any affidavits or documents 
substantiating its position. Within the same 20 days, the respondent 
may request a meeting with OSHA to present its position.
    (c) During the investigation, OSHA will request that each party 
provide the other parties to the whistleblower complaint with a copy of 
submissions to OSHA that are pertinent to the whistleblower complaint. 
Alternatively, if a party does not provide its submissions to OSHA to 
the other party, OSHA will provide them to the other party (or the 
party's legal counsel if the party is represented by counsel) at a time 
permitting the other party an opportunity to respond. Before providing 
such materials to the other party, OSHA will redact them, if necessary, 
consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other 
applicable confidentiality laws. OSHA will also provide each party with 
an opportunity to respond to the other party's 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 a 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;
    (ii) The respondent knew or suspected 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 complaint shows that the adverse 
personnel action took place within a temporal proximity after the 
protected activity, or at the first opportunity available to 
respondent, 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, further investigation of 
the complaint will not be conducted if the respondent demonstrates by 
clear and convincing

[[Page 11882]]

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, OSHA 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.  1980.105, if OSHA 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, OSHA will 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, OSHA 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 investigator, to present 
statements from witnesses in support of its position, and to present 
legal and factual arguments. The respondent will present this evidence 
within 10 business days of OSHA's notification pursuant to this 
paragraph, or as soon afterwards as OSHA and the respondent can agree, 
if the interests of justice so require.


Sec.  1980.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary shall issue, within 60 days 
of the filing of the complaint, written findings as to whether or not 
there is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of the Act.
    (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 
to the complainant. The preliminary order will include all relief 
necessary to make the employee whole, including reinstatement with the 
same seniority status that the complainant would have had but for the 
retaliation; back pay with interest; and compensation for any special 
damages sustained as a result of the retaliation, including litigation 
costs, expert witness fees, and reasonable attorney fees. Interest on 
back pay 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 will also require the respondent to submit 
appropriate documentation to the Social Security Administration 
allocating any back pay award to the appropriate calendar quarters.
    (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 (or other means 
that allow OSHA to confirm receipt), 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 order and to 
request a hearing, and of the right of the respondent to request an 
award of attorney fees not exceeding $1,000 from the administrative law 
judge (ALJ) regardless of whether the respondent has filed objections, 
if the complaint was frivolous or brought in bad faith. 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 any 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/or a request for hearing has been timely filed as 
provided at Sec.  1980.106. 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.  1980.106  Objections to the findings and the preliminary order 
and request for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney fees under the Act, must file any objections and/or a request 
for a hearing on the record within 30 days of receipt of the findings 
and preliminary order pursuant to Sec.  1980.105(b). The objections 
and/or request for a hearing must be in writing and state whether the 
objections are to the findings and/or the preliminary order, and/or 
whether there should be an award of attorney fees. 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, the OSHA 
official who issued the findings and order, the Assistant Secretary, 
and the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor.
    (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 preliminary 
order will become the final decision of the Secretary, not subject to 
judicial review.


Sec.  1980.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative

[[Page 11883]]

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. ALJs 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.  1980.108  Role of Federal agencies.

    (a)(1) The complainant and the respondent will be parties in every 
proceeding and must be served with copies of all documents in the case. 
At the Assistant Secretary's discretion, the Assistant Secretary may 
participate as a party or as amicus curiae at any time 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) Parties must send copies of documents to OSHA and to the 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, only upon request of OSHA, or when OSHA is participating in 
the proceeding, or when service on OSHA and the Associate Solicitor is 
otherwise required by these rules.
    (b) The Securities and Exchange Commission, if interested in a 
proceeding, may participate as amicus curiae at any time in the 
proceeding, at the Commission's discretion. At the request of the 
Securities and Exchange Commission, copies of all documents in a case 
must be sent to the Commission, whether or not the Commission is 
participating in the proceeding.


Sec.  1980.109  Decision 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 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 OSHA's determination to dismiss a complaint without 
completing an investigation pursuant to Sec.  1980.104(e) nor OSHA'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 order will provide all relief necessary to make the employee 
whole, including, reinstatement with the same seniority status that the 
complainant would have had but for the retaliation; back pay with 
interest; and compensation for any special damages sustained as a 
result of the retaliation, including litigation costs, expert witness 
fees, and reasonable attorney fees. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily. The order will also 
require the respondent to submit appropriate documentation to the 
Social Security Administration allocating any back pay award to the 
appropriate calendar quarters.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the judge may award to the 
respondent reasonable attorney fees, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, 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. 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). The 
decision of the ALJ will become the final order of the Secretary unless 
a petition for review is timely filed with the ARB, and the ARB accepts 
the petition for review.


Sec.  1980.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, 
of a decision of the ALJ, or a respondent alleging that the complaint 
was frivolous or brought in bad faith who seeks an award of attorney 
fees, 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 must be served 
on the Assistant Secretary and on the Associate Solicitor, Division of 
Fair Labor Standards, 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 the 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

[[Page 11884]]

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 shall 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 will 
also be served on the Assistant Secretary and on the Associate 
Solicitor, Division of Fair Labor Standards, 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 all relief necessary to make 
the complainant whole, including reinstatement with the same seniority 
status that the complainant would have had but for the retaliation; 
back pay with interest; and compensation for any special damages 
sustained as a result of the retaliation, including litigation costs, 
expert witness fees, and reasonable attorney fees. Interest on back pay 
will be calculated using the interest rate applicable to underpayment 
of taxes under 26 U.S.C. 6621 and will be compounded daily. The order 
will also require the respondent to submit appropriate documentation to 
the Social Security Administration allocating any back pay award to the 
appropriate calendar quarters.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent reasonable attorney fees, not exceeding $1,000.

Subpart C--Miscellaneous Provisions


Sec.  1980.111  Withdrawal of 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 OSHA, orally or in writing, 
of his or her withdrawal. OSHA then will confirm in writing the 
complainant's desire to withdraw and determine whether to approve the 
withdrawal. OSHA 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.  1980.106, 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 
and/or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the 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 
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 
OSHA, the complainant and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA'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 appropriate.
    (e) Any settlement approved by OSHA, the ALJ, or the ARB, will 
constitute the final order of the Secretary and may be enforced in 
United States district court pursuant to Sec.  1980.113.


Sec.  1980.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. Sec.  1980.109 and 1980.110, 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 complainant 
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.  1980.113  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 the Act, 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. 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 the Act, a person on 
whose behalf the order was issued may file a civil action seeking 
enforcement of the order in the appropriate United States district 
court.


Sec.  1980.114  District court jurisdiction over retaliation 
complaints.

    (a) If the Secretary has not issued a final decision within 180 
days of 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

[[Page 11885]]

States, which will have jurisdiction over such an action without regard 
to the amount in controversy. A party to an action brought under this 
paragraph shall be entitled to trial by jury.
    (b) A proceeding under paragraph (a) of this section shall be 
governed by the same legal burdens of proof specified in Sec.  
1980.109. An employee prevailing in any action under paragraph (a) of 
this section shall be entitled to all relief necessary to make the 
employee whole, including:
    (1) Reinstatement with the same seniority status that the employee 
would have had, but for the retaliation;
    (2) The amount of back pay, with interest;
    (3) Compensation for any special damages sustained as a result of 
the retaliation; and
    (4) Litigation costs, expert witness fees, and reasonable attorney 
fees.
    (c) Within seven days after filing a complaint in federal court, a 
complainant must file with OSHA, 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 Fair Labor Standards, U.S. 
Department of Labor.


Sec.  1980.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of this 
part, 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 any orders that justice or the administration of the Act 
requires.

[FR Doc. 2015-05001 Filed 3-4-15; 08:45 am]
 BILLING CODE 4510-26-P


