Department of Labor: 63 6614

8/14/2019 Department of Labor: 63 6614

1/13

fed

era

lregister

6613

MondayFebruary 9, 1998

Part II

Department of LaborOffice of the Secretary

29 CFR Part 24

Procedures for Handling DiscriminationComplaints Under Federal EmployeeProtection Statutes; Final Rule


2/13

6614 Federal Register / Vol. 63, No. 26 / Monday, February 9, 1998 / Rules and Regulations

DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 24

RIN 1215AA83

Procedures for the Handling ofDiscrimination Complaints Under

Federal Employee Protection Statutes

AGENCY: Office of the Secretary and theOccupation al Safety and HealthAdm inistration, Labor.

ACTION: Final rule.

SUMMARY: This document provides thefinal text of revised regulationsgoverning the employee p rotection(wh istleblow er) provisi ons of Section211 (formerly Section 210) of the EnergyReorganization Act of 1974, asamended, to imp lement the statutorychanges enacted into law on October 24,1992, as part of the Energy Policy Actof 1992. This rule establishes separateprocedu res and time frames for thehan dlin g of ERA complain ts toimplement the statutory amendments.In addition , the rule establishes arevised procedu re for review by theAdm inistrative Review Board (on behalfof the Secretary) of decisions ofadm inistrative law judges und er all ofthe various environmental emp loyeeprotection provision s. The rule alsoreflects the transfer of responsibility foradm inistration of these statutes from theAdm inistrator of the Wage and HourDivision to the Assistant Secretary for

Occupation al Safety and Health.DATES: This final rule is effective March11, 1998.

FOR FURTHER INFORMATION CONTACT:Thomas Buckley, Director, Office ofInvestigative Assistance, Occup ationalSafety and Health Admin istration, U.S.Department of Labor, Room N3468,200 Constitution Avenu e, NW.,Wash ington , D.C. 20210, (202) 2198095. This is not a toll-free nu mber.

SUPPLEMENTARY INFORMATION: Th eEnergy Policy Act of 1992, Public Law102486, was enacted on October 24,1992. Among other provisions, this newlaw significantly amended th e employeeprotection provisions for nuclearwh istleblowers un der former Section210 of the Energy Reorganization Act of1974, as amen ded (ERA), now Section211, 42 U.S.C. 5851(b)(1). Theamend men ts affect only ERAwhistleblower complaints and do notextend to the procedu res established in29 CFR Part 24 for hand ling employeewhistleblower complaints un der the sixother environmental emp loyeeprotection statutes. The amendments to

ERA app ly to w histleblower claims filedon or after October 24, 1992, the d ate ofenactmen t of Section 2902 of the EnergyPolicy Act of 1992.

A notice of prop osed rulemakin g andrequest for comments was published inth e Federal Register on March 16, 1994(59 FR 12506). The Federal Registernotice provided for a comment period

un til May 16, 1994. A total of fourcomments were received du ring thecomment period on the p roposedregulations, all from em ployers orrepresentatives of employers. The majorissues raised by the commen ters areiden tified below, as are the significantchanges that have been made in thefinal regulatory text in respon se to thecommen ts received. In add ition to thesubstantive comments discussed below,commenters submitted m inor editorialsuggestions, some of wh ich h ave beenadopted and some of which h ave notbeen adopted.

Paperwork Reduction Act

This regulation contains n o newreporting or recordkeepingrequiremen ts. Reporting requiremen tscontained in th e regulations ( 24.3)were previously reviewed and approvedfor use through Febru ary 28, 1998 by theOffice of Management and Budget(OMB) and assigned OMB controlnu mber 12150183 under the p rovisionsof the Paperwork Reduction Act of 1995(Pub. L. 10413).

Summa ry of Statutory Changes to ERAWhistleblower Provisions

Section 2902 of Public Law 102486(106 Stat. 2776) amended formerSection 210 of th e ERA, 42 U.S.C. 5851,by renu mbering it as Section 211 of theERA and m aking the additional chan gesdescribed below.

Prohibited A cts

Former Section 210 of the ERAprotected an em ployee againstdiscrimination from an employerbecause the emp loyee: (1) commen ced,caused to be commenced , or was aboutto commen ce or cause to be commen ceda proceedin g under th e ERA or theAtom ic Ene rgy Act of 1954 (AEA); (2)testified or w as about to testify in anysuch proceedin g; or (3) assisted orparticipated or w as about to assist orparticipate in any manner in such aproceeding * * * or in any otheraction to carry out the p urp oses of [theERA or the AEA]. The Depar tmen tsconsistent interpretation, under formerSection 210 of the ERA as well as theother environmental whistleblower lawswh ich the Departm ent of Labor (DOL)adm inisters, has been that employeeswh o file complaints internally with an

employer are protected from employerreprisals. An employee is protectedun der 29 C.F.R. 24.2(b)(3) if anemployee assists or participates in* * * any other action to carry out thepurp oses of such Federal[environmen tal p rotection] statute,which w ould encompass such internalcomplaints. This conclusion, that

whistleblower protections extend tointernal safety and quality controlcomplain ts, has been sustained by anu mber of courts of ap peals. See, e.g.,

Mackowiakv. University N uclearSystems, Inc., 735 F.2d 1159 , 1163 (9thCir. 1984); Kansas Gas & Elec. Co. v.

Brock, 780 F.2d 1505 (10th Cir. 1985),cert. denied, 478 U.S. 1011 (1986);Passaic Valley S ewerage Comm issionerv. Department of Labor, 992 F.2d 474(3rd Cir. 1993), cert. d enied, 62 U.S.L.W. 3334 (1993). Contra,Brown & Root,

Inc. v. Donovan , 747 F.2d 1029 (5th Cir.1984). Under the Energy Policy Act of

1992, ERAs statutory definition ofprotected wh istleblower activity wasexpanded expressly to includeemp loyees wh o file internal complaintswith em ployers (thereby overriding thedecision of th e Fifth Circuit in Brown &

Root), employees wh o oppose anyun lawful practice und er the ERA or theAEA, and employees w ho testify beforeCongress or in an y other Fed eral or Stateproceedin g regarding th e ERA or AEA.

Revised Definition of Emp loyer

Former Section 210 of the ERAincluded w ithin the definition of a

covered emp loyer license es of theNuclear Regulatory Commission(NRC), app licants for su ch licens es,and th eir contractors andsubcontractors. The statutoryamendmen ts revised the definition ofemp loyer to exten d coverage toemp loyees of contractors orsubcontractors of the Departmen t ofEnergy (DOE), except those involvedin naval nuclear propulsion work und erE.O. 12344, licensees of an agreementState und er Section 274 of the AtomicEnergy Act of 1954, applicants for suchlicenses, and their contractors and

subcontractors.

Tim e Period for Filing Comp laints

The tim e p eriod for filing ERAwhistleblower complaints wasexpand ed from 30 days to 180 days fromthe date the violation occurs.Investigations of comp laints, how ever,are still to be conducted u nder thestatute within 30 days of receipt of thecomplaint. The ERA amendments applyto all complaints filed on or after thedate of enactmen t.


3/13

6615Federal Register / Vol. 63, No. 26 / Monday, February 9, 1998 / Rules and Regulations

Interim Relief

The Secretary is required un der theamend ed ERA to order interim reliefupon the conclusion of anadministrative hearing and the issuanceof a recommended decision that thecomp laint has merit. Such in terim reliefinclud es all relief that wou ld beinclud ed in a final order of the Secretaryexcept compen satory damages.

Burden s of Proof; Avoidan ce ofFrivolous Comp laints

The 1992 Amendmen ts revised theburd ens of proof in ERA cases byestablishin g statutory burd ens of proofand a stand ard for the dismissal ofcomplaints which do n ot present a

prim a facie case. Before the 19 92Amend men ts, the ERA itself containedno statutory rules on burd ens of proofthe burd ens of proof were based onpreceden tial cases derived from otherdiscrimin ation law (see, e.g.,Mt.

Healthy City Sch ool District Board ofEducation v. Doyle, 429 U.S. 274 (1977);Texas Department of Com m unity A ffairsv. Burdine, 450 U.S. 248 (1981);

Mackowiakv. University N uclearSystems, Inc., 735 F.2d 1159 (9th Cir.1984); and Dartey v. Zack Comp any ofChicago, Case No. 82ERA (Decision ofthe Secretary, April 25, 1983)).

Und er the former lines of analysis forthe ERA and continu ing forwhistleblower complaints und er theother six environm ental statutes, once acomplainant emp loyee p resentsevidence su fficient to raise an inference

that protected cond uct likely was amotiv ating factor in an adve rse actiontaken by an emp loyer against theemp loyee, it is necessary for theemp loyer to present eviden ce that thealleged ad verse treatment was m otivatedby legitimate, nond iscriminatoryreasons. If the employer presen ts suchevidence, the emp loyee still maysucceed by show ing that the profferedreason was p retextual, that is, that adiscrimin atory reason m ore likelymotivated the emp loyer. Thecomplainant thus bears the ultimateburden of proving by a prepond eranceof the eviden ce that he or she wasretaliated against in violation of the law.In su ch pretex t cases, th e factfinder sdisbelief of the reasons p ut forward bythe emp loyer, together with th eelements of the prim a facie case, may besufficient to show such in tentionaldiscrimination. See St. Marys Hon orCenterv. Hicks, 509 U.S. 502 (1993);

Dartey v. Zack, supra, pp. 69.In certain cases, the trier of fact may

conclude that the emp loyer wasmotivated by both prohibited andlegitimate reason s (du al motive

cases). In such du al motive cases, theemployer may prevail only by showingby a prepond erance of the evidence thatit would h ave reached the samedecision even in th e absence of theprotected cond uct.

The 1992 amendm ents added newstatutory burd ens of proof to the ERA.The changes have been described on the

one hand as a lowering of the burd en oncomplain ants in order to facilitate relieffor employees who h ave been retaliatedagainst for exercising th eir statutoryrights, and , on the other han d, as alimitation on th e investigative authorityof the Secretary of Labor wh en th eburden is not met.

Und er the ERA as amended , acomplainant must make a prim a facieshowing that protected cond uct oractivity w as a con tribu ting factor inthe un favorable personn el action allegedin the complaint, i.e., that thewh istleblowing activity, alone or incombination with other factors, affectedin some way th e outcome of theemployers personnel d ecision (section211(b)(3)(A)). This is a lesser stan dardthan the significant, motivating,sub stant ial, or pre dom inan t factorstandard som etimes articulated in caselaw un der statutes prohibitingdiscrimination . If the complain ant doesnot make the prim a facie showing, thecomplaint must be dismissed and theinvestigation discontinued.

Even in cases where the comp lainantmeets the initial burden of a prim a facieshow ing, the investigation must bediscontinued if the employer

dem onstrates, by clear and con vincingevidence, that it wou ld have taken thesame u nfavorable personn el action inthe absence of the protected cond uct(section 211(b)(3)(B)). The complainantis free, as un der prior law, to pu rsue thecase before the adm inistrative law judge(ALJ) if the Secr etary d ismisses th ecomplaint.

The clear and convincin g evidencestandard is a higher degree of proofburden on employers than th e formerprep ond erance of the evidencestandard . In th e words of RepresentativeGeorge Miller, Chairman of the Hou se

Committee on Interior and InsularAffairs, [t]he con ferees inten d toreplace the burden of proof enunciatedin Mt. Healthy v. Doyle, 429 U.S. 274(1977), with this lower burd en in ord erto facilitate relief for employees w hohave been retaliated against forexercising their rights und er section 210* * *. 138 Cong. Rec. H 11409(October 5, 1992).

Thus, und er the amendmen ts to ERA,the Secretary mu st dismiss thecomplain t and n ot investigate (or ceaseinves tigating) if either: (1) The

complain ant fails to meet the primafacie show ing that protected activitywas a contributin g factor in theun favorable personn el action; or (2) theemp loyer rebuts that showing by clearand convincing evidence that it wouldhave taken the same un favorablepersonn el action absent the protectedconduct.

These new bu rden of proof limitationsalso apply to the determin ation as towhether an employer has violated theAct and relief shou ld be ordered. Thus,a determination th at a violation hasoccurred m ay only be made if thecomplainant has demon strated thatprotected behavior or condu ct was acontributin g factor in the un favorablepersonn el action alleged in thecomp laint (section 211(b)(3)(C)). Wherethe complain ant satisfies this burden,relief still may not be ord ered if theemp loyer satisfies the statutoryrequiremen t to d emonstrate by clear

and convincin g eviden ce that it wou ldhave taken the same personn el action inthe absence of the p rotected activity(section 211(b)(3)(D)).

Other Changes

The ERA wh istleblower p rovisionsmust be prominently posted in anyplace of emp loyment to which th e Actapplies. The amend ments also includean express p rovision that the ERAwhistleblower provisions may not beconstrued to expand, diminish, orotherwise affect any right otherwiseavailable to an employee un der Federalor State law to redress the em ployees

discharge or other discrimin atory actiontaken by the employer against theemployeecodifying and broadeningthe Sup reme Court decision inEnglishv. General Electric Co., 496 U.S. 72(1990). Finally, the amen dm ents directthe NRC and DOE not to delayaddressing any substantial safetyhazard du ring the pend ency of awhistleblower proceeding, and providethat a determin ation by the Secretary ofLabor that a wh istleblower violation h asnot occu rred shall n ot be consid eredby the NRC and DOE in d eterminingwh ether a substantial safety hazard

exists.Summary and Discussion of MajorComments

Comments w ere received from theTennessee Valley Authority (TVA); theNuclear Energy Institute (theorganization of the nu clear powerindustry responsible for coordinatingefforts of utilities licen sed by NRC onregulatory issues); the law firm ofWinston & Strawn, on behalf of fiveutility compan ies and TVA; andWestinghouse Electric Corporation. In


4/13


addition, in the period since thecommen t period closed, a request forrulemakin g was received from Steptoeand John son on behalf of AlyeskaPipeline Service Company, which hasalso been considered.

The major commen ts received by theDepartment and th e response of theDepartment to the comments are

discussed as they pertain to each sectionof Part 24 which is amend ed or to wh ichnew p rovisions are added .

One comment was the generalsuggestion that these rules shou ld beproduced through n egotiatedrulemakin g, involving, as that processdoes, the regulatory agencies (NuclearRegulatory Commission, Departmen t ofEnergy, Environm ental ProtectionAgency), indu stry, public interestgroups, and respondents andcomplainants and their representatives.The Department does n ot believe thatnegotiated ru lemaking is approp riate forthese regulations. The regulationsinvolve largely procedu ral issues not sodifficult to resolve as to justify invokingthe p rocedures of the NegotiatedRulem akin g Act of 1990, 5 U.S.C. 581 etseq.

In the period since the proposed rulewas pu blished, two significantorganizational chan ges have taken p lacein the Departmen t of Labor wh ichmaterially affect these regulations. BySecretarys Order No. 296 (61 FR19978, May 3, 1996), the Secretaryappointed an Administrative ReviewBoard (ARB or Board ) to d ecid e allcases previously decided by the

Secretary, includ ing the variousemp loyee p rotection wh istleblowerstatutes which are the subject of theseregulations. Therefore the ARB has beensubstituted for references to theSecretary.

In addition , the Secretary hasdelegated the auth ority to investigatecomplaints under these statutes to theAssistant Secretary of the Occup ationalSafety and Health Adm inistration(OSHA), effective for all complaintsreceived on or after February 3, 1997.Secretarys Order 6 96 (62 FR 111, Jan.2, 1997, as corrected by 62 FR 8085,Feb. 21, 1997). Since OSHA already h adauthority to investigate comp laintsund er the emp loyee protectionprovisions of the Su rface TransportationAssistance Act and the discrimin ationprovisions of the Occu pational Safetyand Health Act, this action p laced allauthority to in vestigate allegeddiscrimin ation because of an employeescomplaints regarding the environmentand safety and health (other than in themin ing indu stry) in one agency.Therefore in these regulations OSHAhas been substituted for all references to

the Wage and Hour Division and theAdm inistrator thereof.

The Department has also published aproposed rule to provide newaltern ative d ispu te resolu tion (ADR)procedures in a number of Departmentalprograms, including the variouswh istleblower statutes. 62 FR 6690 (Feb.12, 1997). This would supp lement

existing procedures in th e regulations ofthe Office of Administrative Law Judges,wh ich allow the parties to a proceedingbefore an ALJ to request app ointmen t ofa settlement judge to seek voluntaryresolution of the issues. 29 CFR 18.9(e).The proposed rule envisions a pilotprogram u nder w hich the Departmentwould investigate a complaint and th en,wh ere the case is foun d to be suitablefor ADR, offer the employer andemployees the option of mediation and /or arbitration. The ARB would n ot bebound by any resolution reached, butwould incorporate the settlement in the

final ARB order w here it m eets ARBstandard s. 62 FR 6693.

Sect ion 24.1 Purpose and Scope

The proposal up dated the list of theFederal statutes provid ing employeeprotections for wh istleblowing activitiesfor which the Department of Labor isresponsible for enforcement under thispart to add the ComprehensiveEnvironmen tal Respon se, Compensationand Liability Act of 1980, 42 U.S.C.9610. This was subsequ entlyaccomplished in another rulemaking. 62FR 19985 (May 3, 1996). No comm entswere received on this provision and no

changes have been made.

Sect ion 24.2 Obl igations andProhibited A cts

The prop osal revised this provision toreflect the statutory amendments addingto the list of protected activitiesexplicitly covered und er the ERA, andto state that un der th e Secretarysinterpretation, the whistleblowingactivities add ed to the ERA areprotected un der all of the wh istleblowerstatutes. The requirement for posting ofnotices of the employee protectionprovisions of the ERA was also add ed,together w ith a provision th at failure topost the required n otice shall make therequiremen t that a complaint be filedwith the Ad ministrator within 180 daysinoperative unless and until the n oticeis later posted or the respon den t is ableto establish that the emp loyee hadactual notice of the provisions. Thisexplicit recognition th at the statute oflimitations may be equ itably tolled isbased on case law un der analogousstatutes. See, for example, Kephartv.

Institute of Gas Techn ology, 581 F.2d1287, 1289 (7th Cir. 1978), cert. den ied,

450 U.S. 959 (1981), and Bonham v.Dresser Indu stries, Inc., 569 F.2d 187(3rd Cir. 1977), cert. denied , 439 U.S.821 (1978), arising und er the AgeDiscrimination in Employmen t Act, andKamens v. Sum m it Stainless, Inc., 586F. Sup p. 324 (E.D. Pa. 1984), arisin gun der the Fair Labor Standard s Act.

Three commen ters state that

references to the Atomic Energy Act of1954 are incorrect because that statutehas no whistleblower provisionsinvolving th e Secretary of Labor, andthey state th at the NRC enforces allaspects of that statute.

The Department recognizes that thewh istleblower provisions w ere enactedto be a part of the Energy ReorganizationAct of 1974, as amended in 1992. Theconfusion arises because thewhistleblower provisions protectwhistleblowers when they disclosealleged su bstantive violations of theAtomic Energy Act; how ever, when th eyare discriminated against for doin g so,this is a violation of the ERA, not th eAtomic Energy Act. The statutoryreferences is clarified accordingly.

Two comm enters assert that theregulations description of employerconduct wh ich is prohibitedintimidates, threatens, restrains,coerces, blacklists, discharges or in anyother man ner discrimin ates against anemp loyeeshou ld be deleted in favorof the language of the statute, wh ichprohibits the employers discharge [of]any employee or otherwisediscrimin at[ing] against any em ployeewith respect to his compen sation, terms,

cond itions, or privileges of emp loyment* * *.

The language in p aragraph (b) of theprop osed regulation is exactly the sameas the language in 24.2(b) of thecurrent regulation. The lan guage issimply a fuller statement of the scope ofprohibited conduct, which encompassesdiscrimination of any kind with respectto the terms, cond itions or p rivileges ofemp loyment. Accordingly, no change isnecessary.

One commenter points out that theregulations proscribe discrimination byan emp loyer against an emp loyee wh o

has engaged in protected conduct.The comm enter believes that literallyread, the regulation does not requ ire ashow ing of a causal connection betweenwhistleblowing and discrimination.

In order to avoid an y possibility ofconfusion, the lan guage of theregulation in p aragraph s (b) and (c) hasbeen chan ged to reflect the statutorylanguage.

The regulations at 24.2(d) providethat the required poster must beprep ared or app roved by DOL. Two ofthe comm enters believe that the poster


5/13


currently required by the NuclearRegulatory Commission is ad equate andno add itional poster should be required.One comm enter sees this as unn ecessaryas long as the emp loyers postercontains the required information.

The statute states: The provisions ofthis section shall be prom inently postedin any place of employment to w hich

this section app lies. The Departmentbelieves that it is necessary to use aposter prepared or app roved by theDepartment to ensure that the postercontains th e essential informationwhich n eeds to be commu nicated toemp loyees. For the convenien ce of thepublic, the Department has prepared aposter which is pu blished as anappend ix to this rule and w hich isavailable at any local OSHA office andat the DOL Website. The Departmentwill also app rove any poster whichcontains the same information and doesnot contain any misleading information.

For example, the Departmen t is workingwith NRC to app rove a poster whichwou ld satisfy its needs as w ell as therequiremen ts of the ERA, thuseliminating the need that both noticesbe posted.

Contrary to the statement of thecommen ter, there is no requirement inthese regulations that respond ents keeprecords of the p osting of the n otice. Thisis a continuing requirement that shouldnot require any kind of recordkeeping.

Three commenters discuss theproposed 24.2(d)(2), und er which theemp loyers failure to p ost the requirednotice of employee rights could lead to

a tolling of the statute of limitations.They express the concern that thetolling rule will be applied tooautomatically, rather than on a case-by-case basis pu rsuan t to general equitableprin ciples as applied to all the facts andcircumstances of a particular case.

The regulation indicates that theemployer has an opp ortunity to showthat the complainin g emp loyee was infact aware of his or her rights, and thu sequitable tolling would not app ly. Aclarifying chan ge is made to theregulation to provide that the 180 dayperiod ordin arily runs from the d ate

the n otice is posted (assum ing of coursethat the emp loyee was still employed atthe site) or the emp loyee receives actualnotice.

Sect ion 24.3 Complaints

The prop osed regulation revised 24.3 to reflect the 180-day filing periodfor comp laints und er the ERA.

One comm enter asserts that theregulations sh ould provide that therespond ent may raise the issue oftimeliness of comp laints any time priorto the conclusion of the hearing. The

commen ter suggests that withou t suchprovision respondents will be d eprivedof the opportu nity to raise thetimeliness issue at a time wh ich is fairto them.

As the commenter noted, pursuant tothe ru les of the Office of Admin istrativeLaw Jud ges at 29 C.F.R. 18.1(a), theFederal Rules of Civil Procedu re

(FRCP) apply in any in stan ce wh erethere is no exp licit rule in Part 18 or thegoverning programs statute an dregulations. Although, unlike under theFederal Rules, there is no p rovision forfiling an answ er in these regulations,there are common ly various occasionswh ere issues such as timeliness can andappropriately should be raised. TheDepartment believes it is reasonable torequire that timeliness ordinarily beraised early in the p roceedings, as boththe ALJ and the Secretary ruled in

Hobby v. Georgia Power Co., No. 90ERA30, ALJs Recomm end ed Decision

and Order (Nov. 8, 1991), Secretary(Aug. 4, 1995) (reversing and rem and ingon oth er groun ds). A specific provisionseems unnecessary.

Two commen ters take issue with thepresent practice, which is continued inthe prop osed regulations, of notrequiring the complainan t to serve thecomplaint on the respondent at thesame time it is filed with theDepartment. Currently the respondentmu st wait to receive the comp laint fromthe Department. The commen ters arguethat requiring the comp lainant to servethe complaint on the respondent wou ldincrease the respond ents response time.

Und er their view of wh at the regulationsshould require, if the complainant didnot serve the respond ent, then therespondent should have additional timeto respond to the Department.

In the Departmen ts experience th eprocedure in the present regulations hasworked satisfactorily. The Departmen tmay need to examine the complaint or,as discussed below, to supplement thecomplaint with interviews of thecomp lainant, before sendin g it to therespondent. Furthermore, a complainantmay wish to w ithdraw a complaint if,for example, he or she learns it is

un timely. A comp arison in this regardwith p roceedings before admin istrativelaw judges is not valid, because thecomp laint initiates an investigation, nota proceeding before an ALJ.

One comm enter states that theregulations appear to protect personswh o raise concerns in bad faith, butdoes n ot cite any specific language inthe regulations to sup port thatproposition.

Nothing in the current or proposedregulations provides for relief wherecomp laints are found to be made in bad

faith. Such a p rovision seemsun necessary. However, former 24.9,which was inadvertently omitted fromthe proposal, has been included again.This provision declares that employeeswho deliberately and without directionof their employer violate Federal law arenot protected.

Section 24.4 Invest igationsSection 24.4 was proposed to be

revised to provid e for filing of hearingrequ ests by facsimile (fax), telegram,han d-delivery, or next-day d eliveryservice (e.g., overnigh t courier s), toconform the regulations to currentbusiness p ractices. In add ition, theproposed regulation p rovided that therequest for a hearing mu st be receivedwithin five business d ays, rather thanfive calend ar days, from receipt of theAdm inistrators determination . Theprop osed regulation also made it clearthat the complainant may app eal from a

finding that a violation has occurredwhere the d etermination or order ispartially adverse (e.g., wh ere acomplain t was only partiallysubstantiated or the order did n ot grantall of the requested relief).

One comm enter suggests that theregulations should m ake clear that in acase where only a prevailingcomplain ant app eals to an ALJ becauseof dissatisfaction w ith the remed yordered by the Adm inistrator (now theAssistant Secretary for OSHA), the non -appealing respondent w ould h ave anopp ortun ity to contest liability before

the ALJ. This wou ld p reventrespond ents from having to file appealsin cases in wh ich they have decided n otto challenge the Adm inistrators ruling,not knowing in wh ich cases thecomplainant will contest the remedy.

Allowing cross-app eals wouldeliminate the need for complainants andrespond ents to guess in su ch cases or tofile app eals in all such cases. Thissection is amend ed accordin gly to allowfor cross app eals. In add ition, thissection is simplified to provid e themechan ism for appeals of both thecomplainant and the respondent in the

same paragraph.As one comm enter suggested, this

section and 24.8 are further amendedin accordance with the Su preme Courtdecision in Darby v. Cisneros, 509 U.S.137 (1993), to make it clear thatexhaustion of adm inistrative remedies isrequired.

In response to a question raised byone comm enter, 24.4(d)(3) is revised tomake it clear that service of copies ofthe appeal must be don e by the partyappealing.


6/13


Section 24.5 Investigations under theEnergy Reorganization Act

A new 24.5, concerninginvestigations un der the EnergyReorganization Act, was p roposed todetail operation of the new p rovisionsun der the ERA for dismissal ofcomplaints where the employee has notalleged aprim a facie case, or theemp loyer has submitted clear andconvincing evidence that it would havetaken the same personnel action in theabsence of the p rotected activity.

Three comm enters are critical of theDepartments formulation in 24.5(b) ofwhat constitutes aprim a facie case.They believe that the regulations shouldrequire the complainants to providesupp orting evidence with theircomp laints, and th ey believe that theregulations give too much weight to theamou nt of time between th e protectedactivity and th e adverse action. Insup port of this latter criticism th ey cite

cases for the prop osition that thistemporal proxim ity may be overcome bythe emp loyers evidence of non-discrimin atory reasons for the adverseaction.

It would be overly restrictive torequire a complainant to provideevidence of discrimination (asdistinguished from a sh owing) when theonly pu rpose of the complain t is totrigger an investigation to determin e ifthere is evidence of discrimination.Complainan ts generally do not have theknow ledge or resources to actuallysub mit evid ence of the violativ e

cond uct. With regard to the cited casesfinding that temporal proximitybetween the protected activity and th eadverse action was not enough to provediscrimin ation, those cases involvedfinal decisions on the m erits afterevidence has been presen ted by bothparties. As set forth in Couty v. Dole,886 F.2d 1 47, 148 (8th Cir. 1989), caselaw establishes that temporalproximity is sufficient as a m atter of lawto establish th e final required element inaprim a facie case of retaliatorydischarge.

Furth ermore, the regulation at issue

here involves the com plaint stage of theproceedin g and m erely triggers aninvestigation and not a finding byOSHA on the merits of the comp laint.The regulation does n ot state thattemporal proxim ity is always enough toestablish aprim a facie case, but ratherstates only that it is norm ally so. Inarriving at a final decision, OSHAconsiders all pertinent evidence inaddition to temporal proximity.

One comm enter cites cases dealingwith who in the respondentorganization mu st have the knowledge

of the p rotected activity as part of aprim a facie case and su ggests that theregulations address this issu e. This is amatter which mu st be determined onthe basis of all the facts andcircumstances of a particular case and isnot suitable for inclusion in theregulations.

The prop osed regulations at

24.5(b)(2) provide that thecomp lainant mu st allege the existenceof facts and eviden ce constituting a

prim a facie case of a violation in th ecomplaint, supplemented as app ropriateby interviews of the comp lainant. Onecommen ter seeks elimination of thesesupp lemental interviews. Twocommen ters suggest that sin ce Wageand Hou r (now th e Occupational Safetyand Health Administration) providesthe comp laint to the employer for hisrespon se, it is only fair to provide theemployer with the information obtainedin th e interviews, as it might contain

one or m ore of the elemen ts of aviolation to wh ich the emp loyer isrequired to respond .

In the Departmen ts view, thesupp lementation of the complaint byinterviews of the comp lainant isnecessary and appropriate becauseemployees commonly lack thesoph istication to aver the elements of a

prim a facie case and eviden ce insup port th ereof. It is recognized,however, that the supp lementalinterviews become a part of thecomp laint, and th erefore in all fairnessthis information, in addition to theoriginal comp laint (wh ich is routinely

provid ed to the emp loyer), ought to beprovided to the employer. Theregulation has been amend ed to soprovide.

As suggested by one comm enter, 24.5(b)(2) has been revised to sep arateout two elemen ts of the required prima

facie showingthat adverse personnelaction has occurred, and that it likelyresulted from the p rotected activity.

One commenter questions thelanguage in 24.5(b)(3) wherein a prima

facie case is described as an inferencethat the respondent knew of thecomp lainants protected activity and the

pr otected acti vity was lik ely a reason for an adverse personnel action. Thecommen ter believes that this languagecreates a standard d ifferent from thestatutory requirement that the p rotectedactivity be a con tribu ting factor in th eunfavorable personnel action.

There is no in tention to d eviate fromthe statutory standard for establishmen tof aprim a facie case, as set forth in 24.5(b)(2). The langu age was likel y areason was u sed to explain th emean ing of was a con tribu ting factor.However, the p rovision is clarified.

One comm enter argues that thissection shou ld require pleading andpro of of variou s facts relating to a claimof retaliatory n onselection, failure tohire, nonretention, n onpromotion,improper disciplinary action, improperlayoff or contract termin ation.

The facts that mu st be pled andproven to establish a p articular form of

discrimination depend on the facts andcircumstances of a particular case. TheDepartment does n ot believe that it isapp ropriate to attempt to catalogue in aregulation all such facts for all possibleforms of discrimination, as su ggested bythe commenter.

One commenter points out atypographical error: At 24.5(b)(2) theword app ropriated was inten ded toread app rop riate.

Another commenter points out atypographical error in 24.5(c)(2),which p rovides that the respondent hasfive busin ess days to rebut the

allegations in the complaint fromreceipt of notification of thecomplainant. This is a typographicalerror and the provision is amend ed bychan ging comp lainan t tocomplaint.

One comm enter believes that thelegislative history of th e 1992Amend ments sh ows that the clear andconvincin g standard app licable to therespond ents burden of proof to rebutthe complain ants prim a facie caseapp lies only at the p re-investigativestage of the case and does n ot applywh en th e case is before the ALJ and the

Secretary (ARB).The 1992 Amendm ents show clearlythat the clear and convincingstandard is applicable to respondents atall stages of the p roceedings. The n ew 24.5(c)(1) applies the standard to th epre-investigative stage of theproceedin gs. The new 24.7(b) app liesthe stand ard to proceedin gs before theALJ and the Ad ministrative ReviewBoard. The interplay of these provisionswas at issue in th e recent case ofDysertv. United States Secretary of Labor, 105F.3d 607 (11th Cir. 1997), in w hich thecourt affirmed the Secretarysdetermination that a comp lainant m ustshow more than a prim a facie case ofdiscrimin ation in order to shift theburden of persuasion to the employer.Rather, the complainant mustdemonstrate that the protectedbehavior was a con tributing factor by aprep ond erance of the evidence beforethe ALJ. In du al motive cases, theburden th en shifts to the respondent todemonstrate by clear and convincingevidence that it would h ave taken thesame action in th e absence of theprotected activity.


7/13


Three commen ters do not believe thatfive days is enough time for respond entsto respond to the comp lainantsprima

facie case with clear and convincingevidence that it would h ave taken thesame un favorable personn el action inthe absence of protected activity.

Given the overall statutory time frameof 90 days, and the time n ecessary for

other stages of the p roceedings, no morethan five days is available for this stageof the process. At any time d urin g theinvestigation the resp ond ent is free toprovid e OSHA with eviden ce in itsdefense wh ich will be considered byOSHA in makin g its final determination.

Section 24.5(d) is revised to simp lifythe p rovisions for appeal of a notice ofdismissal of a complaint by cross-referencing th e service provisions in 24.4.

Sect ion 24.6 Hearings

Proposed 24.6 (formerly 24.5)mad e it clear that the Wage-Hour

Adm inistrator (now th e AssistantSecretary of OSHA) may participate inproceedin gs as a party or as amicuscuriae . In ad dition, at the request of theNuclear Regulatory Comm ission, anexpress provision was add ed to p ermitFederal agencies to participate asamicus curiae, and to receive copies ofpleadings on request.

Because of comm ents su ggesting thatthe various tim e frames are too short,and in recognition of current p ractices, 24.6(a) is amend ed to allow the partiesto agree to a postpon ement of thehearing.

Two comm enters criticize the newprovision in 24.6(f)(1) allowing theAdm inistrator (now th e AssistantSecretary of OSHA) to participate as aparty or as amicus curiae at any time inthe proceedin gs. They argue that theAdm inistrator cannot objectivelyinvestigate a complaint and thenparticipate as a party, and that theAdm inistrators participation as a p artywould present problems aboutconfidential information obtaineddu ring the in vestigative stage of theproceeding and with the attendance ofwitnesses at the hearing. In ad dition,

one comm enter believes this provisionwou ld run coun ter to 29 CFR 18.32 andbe in conflict with Secretarys Order 193 (now Secretarys Order 696), whichspecifies that the Solicitor of Labormakes the d etermination to bring legalproceedings.

This prop osal makes it expresslypossible for the Assistant Secretary toparticipate as an amicus or a party as amatter of right in an y case where suchparticipation is necessary or beneficialto the program. Under the existingregulations, the Adm inistrator (now the

Assistant Secretary) in certain cases hasacted as amicus before ALJs and theSecretary (now the ARB). The AssistantSecretarys p articipation as an amicus orparty wou ld follow an investigationconducted pu rsuant to the normalprocedures, as happ ens in m ost otherprograms where the Departmentprosecutes after condu cting an

investigation. Since th e AssistantSecretary is not the adjud icator, therewould be no conflict between theAssistant Secretary first investigating acomp laint and later acting in aprosecutorial capacity. An analogousproced ure is followed in otherprograms. See, e.g., the Davis-Baconregulations at 29 CFR 5.11. Furtherm ore,as in other programs, OSHA would n otbe required to d isclose confiden tialinformation. Witnesses wou ld beavailable pursuant to normalprocedures. Since OSHA would not beboth a party in a case and an ad visor to

the Secretary, there is no conflict with29 CFR 18.32. Finally, the Solicitor ofLabor, or app ropriate designee, wouldcontinu e to make the decision as toparticipation in th e legal proceedings,and would represent the AssistantSecretary, consistent w ith SecretarysOrder 696.

One comm enter asserts that therequiremen ts in 24.6(f)(2) and in 24.4(d)(4) and 24.5(d)(2) that p artiesserve the Administrator (now th eAssistant Secretary of OSHA) and theAssociate Solicitor of the Fair LaborStandards Division with pleadings andwith copies of the request for a hearing

violate the Paperwork Reduction Act,and that requiring these nu merou sfilings is burd ensome. Anoth ercommenter reads the proposed ru le asrequiring employers to keep records ofcompliance with the postingrequirements.

This requiremen t is not subject to thePaperwork Reduction Act because theAct exempts collections of informationdu ring the conduct of an adm inistrativeaction, investigation or aud it againstspecific individu als or entities. 5 CFR1320.4(a)(2). Since OSHA does notparticipate in most cases, service of

copies of pleadin gs and briefs isimp ortant to keep the AssistantSecretary and the Solicitor informed ofcases in wh ich the Departmen t couldhave an interest.

One comm enter suggests that theregulations contain an exp ress referencemaking the ru les for the cond uct of ALJproceedin gs in 29 CFR Part 18 and therules of eviden ce in that part app licableto the proceed ings in these cases. Thiswould replace the provision in thecurrent 24.5(e)(1) relating toprocedures, evidence and record. A

petition for rulemakin g has also beenreceived making the same request.

The r egulation s at 29 C.F.R. 24.5(e)(1)(renumbered as 24.6(e)(1)) provid e thatformal rules of evidence sh all not app lyto these proceedings. The Departmen tbelieves it is inap prop riate to app ly therules o f eviden ce at 29 C.F.R. Part 18because whistleblowers often appear

pro se . Furthermore, hearsay eviden ce isoften appropriate in whistleblowercases, as there often are no relevantdocuments or w itnesses to provediscrimin atory intent. ALJs have th eresponsibility to determine theapp ropriate weight to be given suchevidence. For these reasons the interestsof determinin g all of the relevant factsis best served by not requ iring strictevidentiary rules and n o change is madein this provision.

One comm enter states that theregulations need to add ress the issue ofvolun tary dismissals, allowingun ilateral dismissals only prior to arequest for a h earing. After a requ est fora hearing a dismissal could only begranted if the respond ent agreed to it orwas comp ensated for costs, fees andexpenses incurred in defending againstthe complaint up to that point.

Although the regulations have noprovision addressing voluntarydismissals, these proceedings aregoverned by th e rules of the Office ofAdministrative Law Judges at 29 C.F.R.Part 18 unless these regulations p rovideto the contrary. Those rules in turnprovid e at 18.1(a) that the FederalRules o f Civil Proced ure (FRCP) app ly

in any instance where there is noexplicit rule in Part 18 or the governingprograms statute and regulations. Rule41(a) of the FRCP allows voluntary,un ilateral dismissal only up to the timethe answer (or motion for sum mary

jud gmen t if earlier) is filed; thereafterthe dism issal must be agreed to by therespondent or ordered by the court. TheDepartment h as app lied Rule 41(a) towh istleblower proceed ings. See, e.g.,Carterv. Los Alamos Natl Lab., No. 93CAA10 (March 21, 1994);Ryan v.Pacific Gas & Electric Co., No. 87 ERA32 (Aug. 9, 1989);Nolderv. Raymond

Kaiser Engrs, Inc., No. 84ERA5 (Jun e28, 1985). The Department sees n oreason wh y any other rule should applyto wh istleblower p roceedings. Thereforeno amen dm ent is necessary. There is nobasis in the statute for requiringemp loyees to pay fees and costs.

Sect ion 24.7 Recomm ended Decisionand Order

Proposed 24.7 (formerly 24.6),concerning recommended decisions andorders, added the statutory requirementthat interim relief be ordered in ERA


8/13


cases once an adm inistrative law jud geissues a recommend ed d ecision that thecomp laint is meritorious. Proposed 24.7 also provided w ith respect to allwh istleblower cases that therecommend ed d ecision of theadm inistrative law judge becomes thefinal order of the Secretary if no p etitionfor review is filed.

Two commenters challenge theconstitutionality of the provision in 24.7 for an award of compensatorydam ages up on a findin g of a violation,urging that only a jury can make su chan award.

The regulation merely tracks thestatutory provision that compensatorydamages are available as a remedy. DOL,as the agency given the ad ministrativeauthority to implemen t that statutoryprovision, has no auth ority to questionthe con stitutionality of the statute.Furth ermore, Congress has the authorityto create a statutory cau se of actionanalogous to a com mon -law legal claimand assign resolution to anadministrative or other tribunal where

jury p roceedings are not available,provid ed the adjud ication is of a publicrightbroadly d efined to inclu de aseemingly private right that is so closelyintegrated in to a pu blic regulatoryscheme as to be a matter app ropriate foragency resolution w ith limitedinvolvemen t by th e Article III

judiciary. Granfinan ciera, S .A. v.Nordberg, 492 U.S. 33, 5155, 54 (1989),quoting from Thomas v. Union Carbide

Agricultural Produ cts Co., 473 U.S. 568,59394 (1985) (Brennan, J., concurring).

Three commen ters believe that the 20day s allotted for issu ance of th e ALJsdecision and order is too short, takinginto account su ch factors as the timenecessary to prepare hearing transcriptsand post-hearing briefs.

The Department considers the 20-daytime period necessary, like the othertime periods in th e regulations, becauseof the overall time period in the statuteof 90 days from com plaint to Secretarysdecision. In a p articular case, inaccordance with cu rrent practice, theparties may agree to extend th e periodfor a hearing or decision and order, and

the regulations have been amen ded to soprovide.Two comm enters argue that the

provision in 24.7(c)(1) requiringinterim relief for the emp loyee upon afinding by an ALJ of a violation shou ldinclud e a hearing before the ALJ on th eissue of in terim relief. Reinstatementshou ld on ly be available if a violation isproven.

The p urp ose of interim relief, toprovide a meritorious complainant witha speedy remedy, wou ld be frustrated ifa second h earing were required. Due

process requiremen ts will have beenfully satisfied by the ALJ hearingalready provided by the statute andregulations. Moreover, the statuteexplicitly provides that a prelimin aryorder of reinstatement (and other relief)shall be issued u pon the conclusion ofthe ALJ hearing and issuance of arecommend ed decision that the

comp laint has m erit. 42 U.S.C.5851(b)(2)(A). Clearly noth ing furth er isrequired. The regulation h as beenmod ified to make it clear thatprelimin ary relief is required on ly if aviolation of the Act has beenestablished.

Section 24.8 Review by the Secretary(ARB)

A new proposed 24.8 detailed theproced ure for seeking review by theSecretary of a decision of anAdm inistrative Law Judge.

Two commenters question w hether

review by the Secretary (now the ARB)of an ALJs dec ision is a matter of rightor is discretionary, and , if the latter,wh at criteria the Secretary would use inexercising that discretion. Clarificationwas also requested of the content of thepetition for review.

The inten t of the regulations is thatapp eals be a matter of right, and notdiscretionary with the ARB. It is notrequired th at the petition for reviewhave any p articular form.

One comm enter states that in ord er toavoid frivolous comp laints and abusivelitigation tactics, the regulations sh ould

provid e for the Secretarys d iscretionaryawardin g of comp ensation against anylosing party guilty of such actions.

The wh istleblower statutes do notprovid e for that form of relief. The reliefdescribed in 24.8(d) as potentiallyavailable for successful comp lainants isthe only relief provid ed by the statute.

Miscellaneous Provisions

The proposed regulations removed 24.7, concernin g judicial review, andformer 24.8, concernin g enforcementof decisions of the Secretary. Theseprovisions vary from statute to statuteamong the whistleblower programs.Furth ermore, the types of jud icialreview or enforcement actions whichare available does not n eed to be thesubject of rulemakin g since they areprescribed by statute and concern

jud icial remedies.One commenter has expressed

concern th at removal of the former 24.7(c), in wh ich the Secretary isdirected to p repare the record of a casein th e event of jud icial review, couldinterfere with the judicial reviewprocess.

The Department is of the view that itis un necessary to have a regulationdescribing the mann er in which therecord is filed w ith the cou rt. When

jud icial review is sought in the court ofapp eals, the Department follows Rule17(b) of the Fed eral Rules of App ellateProcedure, which p rovides a number ofalternative procedu res for filing the

record.As one commen ter suggested, and as

discussed above, the provisions offormer 24.9, which were inadvertentlyomitted from the proposed ru le, havebeen reinstated in the regulation.

Dates of Applicability

Two comm enters read the regulationsas applicable to complain ts filed un derthe ERA prior to the October 1992 ERAAmendments.

Section 2902(i) of the 1992Amend ments, Public Law 102486,provides:

The amen dmen ts made by this sectionshall apply to claims filed un der section211(b)(1) of the Energy Reorganiza tion Act of1974 (42 U.S.C. 5851(b)(1)) on or after thedate of the enactment of this Act.

The date of the enactmen t of that Act isOctober 24, 1992, so the regulatoryprovisions imp lementin g the 1992 ERAAmendm ents apply only to ERAcomplain ts filed on or after that date.

Furth ermore, as discussed above, thedelegation of auth ority to the AssistantSecretary for Occup ational Safety andHealth is effective only with respect tocomplain ts received on or after February3, 1997.

In all other respects, the p rovisions ofthis p art are applicable to actions takenon or after the effective date.

Executive Order 12866; Section 202 ofthe Unfunded Mandates Reform Act of1995; Small Business RegulatoryEnforcement Fairnes s Act; ExecutiveOrder 12875

The Department h as concluded thatthis rule is not a significant regulatoryaction within th e mean ing of ExecutiveOrder 12866. Because it is procedural innature, it will not: (1) Have an ann ualeffect on th e economy of $100 millionor more or adversely affect in a materialway the econ omy, a sector of theeconomy, productivity, competition,

jobs, the environmen t, public health orsafety, or State, local or tribalgovernments or commu nities; (2) createa serious inconsistency or otherwiseinterfere with an action taken orplann ed by anoth er agency; (3)materially alter the bu dgetary impact ofentitlements, grants, user fees, or loanprograms or the rights and obligations ofrecipients th ereof; or (4) raise n ovellegal or policy issues arising out of legal


9/13


man dates, the Presiden ts p riorities, orthe p rinciples set forth in ExecutiveOrder 12866. Th erefore, no regulatoryimpact analysis has been prepared.Similarly, because the ru le is noteconomically significant, it is n ot amajor rule within the mean ing ofSection 804(2) of the Sm all BusinessRegulatory Enforcement Fairness Act,

and d oes not require a Section 202statement und er the Unfund edMand ates Reform Act of 1995. Finally,these regulations will not result in anyincreased costs to State, local or tribalgovernments and therefore are notsubject to Executive Order 12875.

Regulatory Flexibility Analys is

The Department h as determined thatthe regulation w ill not have a significanteconomic imp act on a substantialnu mber of small entities. The regulationimplements p rocedural revisionsnecessitated by statutory amendmentsand p rovisions which imp rove theprocedu res for speedier resolution ofwhistleblower complaints. TheDepartment of Labor certified to thiseffect to the Chief Counsel for Advocacyof the Small Business Adm inistration.Therefore, no regulatory flexibilityanalysis is required.

Document Preparation: Thisdocument was prepared und er thedirection an d control of Gregory R.Watchman , Acting Assistant Secretary,Occupation al Safety and HealthAdm inistration, U.S. Department ofLabor.

List of Subjects in 29 CFR Part 24Adm inistrative practice and

procedure, Employment, Environmentalprotection, Investigations, Reportingand recordkeeping requirements,Whistleblowing.

Signed at Washington, DC, this 30th day ofJanu ary 1998.

Charles N. Jeffress,

Acting A ssistant Secretary for Occup ationalSafety and Health.

Accordingly, for the reasons set ou t inthe preamble, and under the delegationof authority in Secretarys Order 696(62 FR 111, Jan. 2, 199 7, as corrected by

62 FR 8085, Feb. 21, 1997 ), 29 CFR part24 is revised to read as follows:

PART 24PROCEDURES FOR THEHANDLING OF DISCRIMINATIONCOMPLAINTS UNDER FEDERALEMPLOYEE PROTECTION STATUTES

Sec.2 4.1 Pu rp o se an d sco p e.24.2 Obligations and prohibited acts.2 4.3 Co mp la in t.24.4 Investigations.24.5 Investigations under the Energy

Reorganization Act.

2 4.6 H ea ri ngs .24.7 Recommended decis ion and order.24.8 Review by the Administrative Review

Board.2 4.9 Ex ce pt io n.Appendix A to Part 24Your Rights Under

the Energy Reorganization Act.

Authority: 15 U.S.C. 2622; 33 U.S.C. 1367;42 U.S.C. 300j9(i), 5851, 6971, 7622, 9610.

24.1 Purpose and scope.(a) This part imp lements the several

emp loyee protection provisions forwh ich th e Secretary of Labor has beengiven responsibility pursuant to thefollowing Federal statutes: SafeDrinkin g Water Act, 42 U.S.C. 300j9(i);Water Pollution Control Act, 33 U.S.C.1367; Toxic Substances Control Act, 15U.S.C. 2622; Solid Was te Disposal Act,42 U.S.C. 6971; Clean Air A ct, 42 U.S.C.7622; Energy Reorganization Act of1974, 42 U.S.C. 5851; andComprehensive EnvironmentalResponse, Compensation an d Liability

Act of 1980, 42 U.S.C. 9610.(b) Procedures are established by thispart pu rsuan t to the Federal statutoryprovisions listed in paragraph (a) of thissection, for the expeditiou s hand ling ofcomp laints by employees, or personsacting on their beh alf, of discriminatoryaction by employers.

(c) Thr ough out th is part, Secretaryor Secretary o f Labor sha ll mean theSecretary of Labor, U.S. Department ofLabor, or his or her designee. AssistantSecretary shall mean the AssistantSecretary for Occup ational Safety andHealth, U.S. Departmen t of Labor, or hisor her designee.

24.2 Obligations and prohibited acts.

(a) No emp loyer subject to theprovisions of any of the Federal statuteslisted in 24.1(a), or to the AtomicEnergy Act of 1954 (AEA), 42 U.S.C.2011 et seq., may discharge anyemployee or otherwise discriminateagainst any emp loyee with respect tothe emp loyees compen sation, terms,cond itions, or privileges of employm entbecause the emp loyee, or any personacting pursu ant to the employeesrequest, engaged in any of the activitiesspecified in this section.

(b) Any emp loyer is deemed to haveviolated the particular federal law andthe regulations in th is part if suchemployer intimidates, threatens,restrains, coerces, blacklists, discharges,or in an y other mann er discriminatesagainst any emp loyee because theemployee has:

(1) Commenced or caused to becommen ced, or is about to comm ence orcause to be commen ced, a proceedingun der on e of the Federal statutes listedin 24.1(a) or a proceeding for theadm inistration or enforcement of any

requirement imposed u nder suchFederal statute;

(2) Testified or is abou t to testify inany such p roceeding; or

(3) Assisted or p articipated, or isabout to assist or participate, in anymanner in su ch a proceeding or in anyother action to carry out the p urp oses ofsuch Fed eral statute.

(c) Under the Energy ReorganizationAct, and by interpretation of theSecretary under an y of the other statuteslisted in 24.1(a), any emp loyer isdeemed to h ave violated the particularfederal law an d th ese regulations if suchemployer intimidates, threatens,restrains, coerces, blacklists, discharges,or in any other manner d iscriminatesagainst any emp loyee because theemployee has:

(1) Notified the employer of analleged violation of such Federal statuteor the AEA of 1954;

(2) Refused to engage in any practicemade u nlawful by such Federal statute

or the AEA of 1954, if the emp loyee hasidentified th e alleged illegality to theemployer; or

(3) Testified before Congress or at an yFederal or State proceeding regardingany provision (or proposed p rovision) ofsuch Federal statute or the AEA of 1954.

(d)(1) Every employer subject to theEnergy Reorganization A ct of 1974, asamended, shall prominently post andkeep posted in any place of employmentto which th e employee protectionprovisions of the Act app ly a fullylegible copy of the notice prepared bythe Occup ational Safety and Health

Administration, printed as app endix Ato this part, or a notice approved by theAssistant Secretary for Occup ationalSafety and Health th at containssubstantially the same provisions andexplains the emp loyee protectionprovisions of the Act and theregulations in this p art. Copies of thenotice prep ared by DOL may beobtained from th e Assistant Secretaryfor Occupational Safety and Health,Washington, D.C. 20210, from localoffices of the Occup ational Safety andHealth Admin istration, or from theDepartment of Labors Website at http:/

/www.osha.gov.(2) Where the n otice required byparagraph (d)(1) of this section has n otbeen posted, the requiremen t in 24.3(b)(2) that a comp laint be filedwith th e Assistant Secretary within 180days of an alleged violation shall beinoperative un less the respondentestablishes that the complain ant hadnotice of the material provisions of thenotice. If it is established th at the n oticewas posted at the emp loyees place ofemploym ent after the allegeddiscrimin atory action occurred or that


10/13


the comp lainant later obtained actualnotice, the 180 days shall ordinarily runfrom that date.

24.3 Complaint.

(a) Who m ay file. An employee whobelieves that h e or she has beendiscrimin ated against by an emp loyer inviolation of any of the statutes listed in

24.1(a) may file, or have anoth erperson file on h is or her behalf, acomplaint alleging such discrimination.

(b) Tim e of filing. (1) Excep t asprovid ed in paragraph (b)(2) of thissection, any comp laint shall be filedwithin 30 days after the occurrence ofthe alleged violation. For the pu rpose ofdetermin ing timeliness of filing, acomp laint filed by mail shall be deemedfiled as of the d ate of mailing.

(2) Under the Energy ReorganizationAct of 1974, any com plaint sh all be filedwithin 180 days after the occurrence ofthe alleged violation.

(c) Form of comp laint. No particularform of comp laint is required, exceptthat a complaint mu st be in writing andshou ld includ e a full statement of theacts and omissions, with p ertinentdates, which are believed to constitutethe violation.

(d ) Place of filing. A complaint may befiled in person or by m ail at the nearestlocal office of the Occupational Safetyand Health Adm inistration, listed inmost telephon e directories un der U.S.Government, Departmen t of Labor. Acomp laint may also be filed with th eOffice of the Assistant Secretary,Occupation al Safety and Health

Adm inistration, U.S. Department ofLabor, Washin gton, D.C. 20210.

(Approved by th e Office of Managementand Budget under control num ber 12150183.)

24.4 Investigations.

(a) Upon receipt of a complaint u nd erthis p art, the Assistant Secretary shallnotify the person named in thecomp laint, and the app ropriate office ofthe Federal agency charged with theadm inistration of the affected p rogramof its filing.

(b) The Assistant Secretary shall, on apriority basis, investigate and gatherdata concernin g such case, and as partof the investigation may enter an dinspect such p laces and records (andmake cop ies thereof), may qu estionpersons being proceeded against andother emp loyees of the ch argedemployer, and may require theproduction of any d ocumentary or otherevidence deemed necessary todetermin e wheth er a violation of thelaw involved has been committed.

(c) Investigations un der th is part shallbe condu cted in a mann er which

protects the con fidentiality of anyperson other than the complainant whoprovid es information on a confiden tialbasis, in accordan ce with p art 70 of thistitle.

(d)(1) Within 30 days of receipt of acomp laint, the Assistant Secretary shallcomp lete the investigation, determine

wh ether the alleged violation hasoccurred, and give notice of thedetermin ation. The notice ofdetermination shall contain a statementof reasons for the find ings andconclusion s therein and, if the AssistantSecretary determines th at the allegedviolation has occurred, shall include anapp ropriate order to abate the violation.Notice of the determin ation shall begiven by certified m ail to thecomplainant, the respondent, and theirrepresentatives (if any). At the sametime, the Assistant Secretary shall filewith the Chief Admin istrative Law

Jud ge, U.S. Departmen t of Labor, theoriginal comp laint and a copy of thenotice of determin ation.

(2) The n otice of determin ation shallinclud e or be accompan ied by notice tothe complainant and the respond entthat any p arty who d esires review of thedetermin ation or any part thereof,includ ing judicial review, shall file arequest for a hearing with the ChiefAdm inistrative Law Judge within fivebusin ess days of receipt of thedetermination. The complainant orrespondent in turn may request a

hearing within five busin ess days of thedate of a timely request for a hearing bythe oth er party. If a request for a hearingis timely filed, the n otice ofdetermin ation of the Assistant Secretaryshall be inoperative, and shall becomeoperative only if the case is laterdism issed. If a request for a h earing isnot timely filed, the n otice ofdetermin ation shall become the finalorder of th e Secretary.

(3) A request for a h earing shall befiled w ith the Chief Adm inistrative LawJud ge by facsimile (fax), telegram, han ddelivery, or next-day d elivery service. A

copy of the requ est for a hearing shallbe sent by the party requesting a hearingto the complainant or the respondent(employer), as approp riate, on th e sameday that the h earing is requested, byfacsimile (fax), telegram, hand delivery,or next-day d elivery service. A copy ofthe requ est for a hearing shall also besent to th e Assistant Secretary forOccupation al Safety and Health and tothe Associate Solicitor, Division of FairLabor Standards, U.S. Departmen t ofLabor, Washin gton, D.C. 20210.

24.5 Investigations under the EnergyReorganization Act.

(a) In add ition to th e investigationprocedu res set forth in 24.4, thissection sets forth special proced uresapp licable only to investigations und erthe Energy Reorganization Act.

(b)(1) A comp laint of alleged violationshall be dismissed unless the

complainant has made a prim a facieshow ing that protected behavior orconduct as provided in 24.2(b) was acontributing factor in th e un favorablepersonn el action alleged in thecomplaint.

(2) The complaint, supplemented asapp ropriate by interviews of thecomplain ant, mu st allege the existenceof facts and eviden ce to meet therequired elemen ts of aprim a facie case,as follows:

(i) The emp loyee engaged in aprotected activity or condu ct, as setforth in 24.2;

(ii) The respon den t knew that theemployee engaged in the p rotectedactivity;

(iii) The emp loyee has su ffered anun favorable personn el action; and

(iv) The circum stances were su fficientto raise the inference that the p rotectedactivity w as likely a con tributing factorin the u nfavorable action.

(3) For pu rposes of determiningwh ether to investigate, the complain antwill be considered to have met therequired burden if the complaint on itsface, supplemented as appropriatethrough interviews of the complainant,alleges the existence of facts and either

direct or circumstantial evidence tomeet the required elements of aprima

facie case, i.e., to give rise to aninference that the respondent kn ew thatthe emp loyee engaged in p rotectedactivity, and that the p rotected activitywas likely a reason for the p ersonnelaction. Normally the burd en is satisfied,for examp le, if it is shown that theadverse personn el action took placeshortly after the p rotected activity,giving rise to the inference that it w asa factor in the ad verse action. If theseelements are not substantiated in theinvestigation, the investigation w ill

cease.(c)(1) Notwithstand ing a findin g thata complainant has made aprim a facieshow ing required by this section withrespect to comp laints filed un der theEnergy Reorganization Act, aninvestigation of the comp lainantscomplain t und er that Act shall bediscontinued if the respond entdemonstrates by clear and convincingevidence that it would h ave taken thesame un favorable personn el action inthe absence of the complain antsprotected behavior or conduct.


11/13


(2) Upon receipt of a complaint un derthe Energy Reorganization Act, therespondent shall be provided w ith acopy of the comp laint (as supp lementedby interviews of the complain ant, if any)and ad vised that any evidence it maywish to submit to rebut th e allegationsin the comp laint must be receivedwithin five busin ess days from receipt

of notification of the com plaint. If therespond ent fails to make a timelyresponse or if the response does notdemonstrate by clear and convincingevidence th at the un favorable actionwould have occurred absent theprotected cond uct, the investigationshall proceed. The in vestigation shallproceed w hen ever it is necessary orapp ropriate to confirm or verify theinformation provided by respondent.

(d) Whenever th e Assistant Secretarydismisses a complaint pu rsuant to thissection withou t completion of aninvestigation, th e Assistant Secretary

shall give notice of the d ismissal, whichshall contain a statement of reasonstherefor, by certified mail to th ecomplainant, the respond ent, and theirrepresentatives. At the same time th eAssistant Secretary shall file with th eChief Administrative Law Judge, U.S.Department of Labor, a copy of thecomp laint and a copy of the notice ofdismissal. The notice of dismissal shallconstitute a notice of determinationwithin the m eaning of 24.4(d), and anyrequest for a hearing shall be filed andserved in accordance with th eprovisions of 24.4(d) (2) and (3).

24.6 Hearings.(a)Notice of hearing. Th e

adm inistrative law judge to wh om thecase is assigned shall, within sevencalendar d ays followin g receipt of therequest for hearing, notify the p arties bycertified m ail, directed to th e lastknow n add ress of the parties, of a day,time and place for hearing. All partiesshall be given at least five days n oticeof such h earing. However, because ofthe time constraints upon the Secretaryby the above statutes, no requ ests forpostponement shall be granted exceptfor comp elling reasons or with th e

consent of all parties.(b) Consolidated hearings. When twoor more hearings are to be held, and thesame or substantially similar evidence isrelevant and m aterial to the matters atissue at each such hearing, the ChiefAdm inistrative Law Judge may, uponmotion by any party or on his own orher own motion, order that aconsolidated hearing be conducted.Where consolidated h earings are held, asingle record of the proceedin gs shall bemade and the evidence introduced inone case may be considered as

introduced in the others, and a separateor joint decision shall be mad e, asappropriate.

(c) Place of hearing. The hearing shall,wh ere possible, be held at a placewithin 75 miles of the comp lainantsresidence.

(d)Right to coun sel. In allproceedin gs un der this part, the parties

shall have the right to be represented bycounsel.

(e) Procedures, evidence and record(1)Evidence. Formal rules of evidenceshall not apply, but rules or principlesdesigned to assure produ ction of themost p robative evidence available shallbe applied. The adm inistrative law

jud ge may exclude eviden ce which isimmaterial, irrelevant, or undu lyrepetitious.

(2)Record of hearing. All hearingsshall be open to the public and shall bemechan ically or stenographicallyreported. All evidence up on w hich theadmin istrative law jud ge relies fordecision shall be contained in thetranscript of testimony, either directlyor by app ropriate reference. All exhibitsand other pertinent documents orrecords, either in w hole or in materialpart, introdu ced as evidence, shall bemarked for identification andincorporated into the record.

(3) Oral argum ent; briefs. Any p arty,upon request, may be allowed areasonable time for presentation of oralargument an d to file a prehearing briefor other w ritten statement of fact or law.A copy of any such preh earing brief orother written statement shall be filed

with the Chief Admin istrative LawJud ge or the adm inistrative law judgeassigned to the case before or du ring theproceeding at which evidence issubmitted to the ad min istrative law

jud ge and shall be served upon eachparty. Post-hearing briefs will n ot bepermitted excep t at the request of theadmin istrative law judge. Whenpermitted, any su ch brief shall belimited to the issue or issues sp ecifiedby the admin istrative law judge andshall be due within th e time prescribedby the adm inistrative law jud ge.

(4)Dismissal for cause. (i) The

admin istrative law judge may, at therequest of any party, or on his or h erown m otion, issue a recommend eddecision and ord er dismissing a claim:

(A) Upon the failure of thecomplain ant or his or her representativeto attend a hearing withou t good cause;or

(B) Upon the failure of thecomplainant to comply with a lawfulorder of the adm inistrative law jud ge.

(ii) In an y case wh ere a dismissal ofa claim, defense, or party is sought, theadmin istrative law judge shall issue an

order to show cause why the dismissalshou ld n ot be granted an d afford allparties a reasonable time to respond tosuch order. After the time for responsehas expired, the adm inistrative law

jud ge shall take such action as isapp ropriate to rule on the d ismissal,which m ay include a recommendedorder d ismissing the claim, defense or

party.(f)(1) At th e Assistan t Secretarys

discretion, the Assistant Secretary mayparticipate as a party or p articipate asamicus curiae at any time in theproceedin gs. This right to participateshall includ e, but is not limited to, theright to petition for review of arecommend ed d ecision of anadm inistrative law judge, includin g adecision based on a settlemen tagreement between complainant andrespond ent, to dismiss a complaint or toissue an order encomp assing the termsof the settlement.

(2) Copies of pleadings in all cases,wh ether or not th e Assistant Secretary isparticipating in the proceedin g, shall besent to th e Assistant Secretary,Occupation al Safety and HealthAdm inistration, and to the AssociateSolicitor, Division of Fair LaborStandard s, U.S. Departmen t of Labor,Washington, D.C. 20210.

(g)(1) A Federal agency which isinterested in a proceeding mayparticipate as amicus curiae at any timein th e proceed ings, at the agencysdiscretion.

(2) At the requ est of a Federal agencywh ich is interested in a proceedin g,

copies of all pleadings in a case sh all beserved on the Fed eral agency, wheth eror not the agency is participating in theproceeding.

24.7 Recommended decision and order.

(a) Unless the parties jointly requestor agree to an exten sion of time, theadmin istrative law judge shall issue arecommend ed decision w ithin 20 daysafter the termination of the proceedin gat which evidence was submitted. Therecommend ed decision shall containappropriate findings, conclusions, and arecommend ed order and be served upon

all parties to the proceeding.(b) In cases un der th e EnergyReorganization Act, a determin ation thata violation has occurred may only bemade if the complainant hasdemonstrated that protected behavior orcond uct was a contributin g factor in theun favorable personn el action alleged inthe comp laint. Relief may not beordered if the respondent demonstratesby clear and convincin g eviden ce that itwould have taken the same unfavorablepersonn el action in th e absence of suchbehavior. The proceedin g before the


12/13


adm inistrative law jud ge shall be aproceedin g on the merits of thecomp laint. Neither the AssistantSecretarys determin ation to d ismiss acomplaint pursuant to 24.5 withoutcomp leting an investigation nor theAssistant Secretarys determ ination n otto dismiss a comp laint is subject toreview by the adm inistrative law jud ge,

and a complaint may not be remandedfor the completion of an investigationon the basis that such a determinationto dismiss was made in error.

(c)(1) Upon the conclu sion of thehearing and th e issuance of arecommend ed d ecision that thecomplaint has merit, and that aviolation of the Act has occurred , theadm inistrative law jud ge shall issue arecommend ed order that the respond enttake app ropriate affirmative action toabate the violation, includ ingreinstatement of the comp lainant to hisor her former position, if desired,together with th e compensation(includin g back pay), terms, cond itions,and p rivileges of that employm ent, and,when appropriate, compensatorydam ages. In cases arising un der th e SafeDrinking Water Act or the ToxicSubstances Control Act, exemplarydam ages may also be awarded w henappropriate.

(2) In cases brought un der th e EnergyReorganization Act, wh en anadm inistrative law jud ge issues arecommend ed order that the complainthas merit and con taining the reliefprescribed in paragraph (c)(1) of thissection, the admin istrative law judgeshall also issue a prelimin ary orderprovid ing all of the relief specified inparagraph (c)(1) of this section w ith th eexception of compensatory dam ages.This prelimin ary order shall constitutethe p reliminary order of the Secretaryand shall be effective immediately,wh ether or not a petition for review is

filed w ith the Ad ministrative ReviewBoard. Any award of compensatorydam ages shall not be effective until thefinal decision is issued by theAdm inistrative Review Board.

(d) The recommen ded d ecision of theadm inistrative law judge shall becomethe final order of the Secretary un less,

pu rsuant to 24.8, a petition for reviewis timely filed with th e Admin istrativeReview Board.

24.8 Review by the AdministrativeReview Board.

(a) Any p arty desiring to seek review,includ ing judicial review, of arecommend ed d ecision of theadm inistrative law judge shall file apetition for review w ith theAdministrative Review Board (theBoard), which has been delegated theauth ority to act for the Secretary andissue final decisions und er this part. To

be effective, such a petition m ust bereceived within ten bu siness days of thedate of the recommended decision ofthe adm inistrative law judge, and shallbe served on all parties and on th e ChiefAdministrative Law Judge. If a timelypetition for review is filed, therecommend ed d ecision of theadm inistrative law jud ge shall beinop erative un less and un til the Boardissues an order adopting therecommen ded d ecision, except that forcases arising und er the EnergyReorganization Act of 1974, aprelimin ary order of relief shall be

effective while review is condu cted bythe Board.

(b) Copies of the petition for reviewand all briefs shall be served on th eAssistant Secretary, Occupational Safetyand Health Adm inistration, and on theAssociate Solicitor, Division of FairLabor Standards, U.S. Departmen t ofLabor, Washin gton, D.C. 20210.

(c) The final decision sh all be issuedwithin 90 days of the receipt of thecomplaint and shall be served u pon allparties and th e Chief Adm inistrativeLaw Jud ge by mail to the last know naddress.

(d)(1) If the Board con cludes that theparty charged has violated the law, thefinal order shall order the p arty chargedto take app ropriate affirmative action toabate the violation, includ ingreinstatement of the complainan t to thatpersons former or substantiallyequivalent p osition, if desired, togetherwith th e compensation (includin g backpay), terms, conditions, and privilegesof that employment, and, w henapp ropriate, compensatory d amages. Incases arising un der th e Safe DrinkingWater Act or the Toxic SubstancesControl Act, exemp lary damages mayalso be awarded w hen ap propriate.

(2) If such a final order is issued , theBoard, at the request of the comp lainant,shall assess against the respon den t asum equal to the aggregate amoun t of allcosts and exp enses (includ ing attorneyand expert witn ess fees) reasonablyincurred by the comp lainant, asdetermin ed by th e Board, for, or inconn ection with, the bringing of thecomplaint upon wh ich the order wasissued.

(e) If the Board d etermines th at theparty charged has not violated the law,an order shall be issued d enying thecomplaint.

24.9 Exception.

This part shall have no application toany employee alleging activityproh ibited by this part wh o, actingwithou t direction from his or heremployer (or the em ployers agent),deliberately causes a violation of anyrequiremen t of a Federal statute listed in 24.1(a).BILLING CODE 451026C


13/13


Appendix A to Part 24Your Rights Under the Energy Reorganization Act

[FR Doc. 982922 Filed 2698; 8:45 am]

BILLING CODE 451026P

Documents

Department of Labor: 63 6614