29 CFR Part 1980

29 CFR 1980

29 CFR Part 1980
Procedures for the Handling of Discrimination Complaints under Section 806 of the
Corporate and Criminal Fraud Accountability Act of 2002,
Title VIII of the Sarbanes–Oxley Act of 2002
Subpart A - Complaints, Investigations, Findings and Preliminary Orders
1980.100 Purpose and scope.
1980.101 Definitions.
1980.102 Obligations and prohibited acts.
1980.103 Filing of discrimination complaint.
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, objections, and findings; settlement.
1980.112 Judicial review.
1980.113 Judicial enforcement.
1980.114 District Court jurisdiction of discrimination complaints.
1980.115 Special circumstances; waiver of rules.
Authority: 18 U.S.C. 1514A; Secretary of Labor’s Order No.5-2002, 67 Fed. Reg. 65008
(October 22, 2002).
Subpart A - Complaints, Investigations, Findings and Preliminary Orders
§ 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. Sarbanes-Oxley provides for employee protection
from discrimination by companies and representatives of companies 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.
(b) This part establishes procedures pursuant to Sarbanes–Oxley for the expeditious handling of
discrimination complaints made by employees, or by persons acting on their behalf. These rules,
together with those rules codified at 29 CFR part 18, set forth the procedures for submission of
complaints under Sarbanes–Oxley, investigations, issuance of findings and preliminary orders,
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objections to findings and orders, litigation before administrative law judges, post-hearing
administrative review, and withdrawals and settlements.
§ 1980.101 Definitions.
“Act” means section 806 of the Corporate and Criminal Fraud Accountability Act of 2002,
Title VIII of the Sarbanes–Oxley Act of 2002, Public Law No.107-204, July 30, 2002, codified
at 18 U.S.C. 1514A.
“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.
“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) and any company required to file reports under
section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)).
“Company representative” means any officer, employee, contractor, subcontractor, or agent
of a company.
“Complainant” means the employee who filed a complaint under the Act or on whose behalf
a complaint was filed.
“Employee” means an individual presently or formerly working for a company or company
representative, an individual applying to work for a company or company representative, or an
individual whose employment could be affected by a company or company representative.
“Named person” means the employer and/or the company or company representative named
in the complaint who is alleged to have violated the Act.
“OSHA” means the Occupational Safety and Health Administration of the United States
Department of Labor.
“Person” means one or more individuals, partnerships, associations, corporations, business
trusts, legal representatives or any group of persons.
“Secretary” means the Secretary of Labor or persons to whom authority under the Act has
been delegated.
§ 1980.102 Obligations and prohibited acts.
(a) No company or company representative may discharge, demote, suspend, threaten, harass or
in any other manner discriminate against any employee with respect to the employee’s
compensation, terms, conditions, or privileges of employment because the employee, or any
person acting pursuant to the employee’s request, engaged in any of the activities specified in
paragraphs (b)(1)-(2) of this section.

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(b) A company or company representative is deemed to have violated the Act if it intimidates,
threatens, restrains, coerces, blacklists, or in any other manner discriminates against an employee
in the terms and conditions of employment because of 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.
§ 1980.103 Filing of discrimination complaint.
(a) Who may file. An employee who believes that he or she has been discriminated against by a
company or company representative in violation of the Act may file, or have filed by any person
on the employee's behalf, a complaint alleging such discrimination.
(b) Nature of filing. No particular form of complaint is required, except that a complaint must be
in writing and should include a full statement of the acts and omissions, with pertinent dates,
which are believed to constitute the violations.
(c) Place of filing. The complaint should be filed with the OSHA Area Director responsible for
enforcement activities in the geographical area where the employee resides or was employed, 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: www.osha.gov.
(d) Time for filing. Within 90 days after an alleged violation of the Act occurs (i.e., when the
discriminatory decision has been both made and communicated to the complainant), an
employee who believes that he or she has been discriminated against in violation of the Act may
file, or have filed by any person on the employee’s behalf, a complaint alleging such
discrimination. The date of the postmark, facsimile transmittal, or e-mail communication will be
considered to be the date of filing; if the complaint is filed in person, by hand-delivery, or other
means, the complaint is filed upon receipt.
§ 1980.104 Investigation.
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(a) Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the
named person (or named persons) of the filing of the complaint, of the allegations contained in
the complaint, and of the substance of the evidence supporting the complaint (redacted to protect
the identity of any confidential informants). The Assistant Secretary also will notify the named
person of its right under paragraphs (b) and (c) of this section and paragraph (e) of § 1980.110.
A copy of the notice to the named person will also be provided to the Securities and Exchange
Commission.
(b) A complaint of alleged violation will be dismissed unless the complainant has made a prima
facie showing that protected behavior or conduct was a contributing factor in the unfavorable
personnel action alleged in the complaint.
(1) 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 or conduct;
(ii) The named person knew or suspected, actually or constructively, that the employee
engaged in the protected activity;
(iii)The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that the protected activity
was a contributing factor in the unfavorable action.
(2) 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
named person knew or suspected that the employee engaged in protected activity and that the
protected activity was a contributing factor in the unfavorable personnel action. Normally
the burden is satisfied, for example, if the complaint shows that the adverse personnel action
took place shortly after the protected activity, giving rise to the inference that it was a factor
in the adverse action. If the required showing has not been made, the complainant will be so
advised and the investigation will not commence.
(c) Notwithstanding a finding that a complainant has made a prima facie showing, as required by
this section, an investigation of the complaint will not be conducted if the named person,
pursuant to the procedures provided in this paragraph, demonstrates by clear and convincing
evidence that it would have taken the same unfavorable personnel action in the absence of the
complainant's protected behavior or conduct. Within 20 days of receipt of the notice of the
filing of the complaint, the named person may submit to the Assistant Secretary a written
statement and any affidavits or documents substantiating its position. Within the same 20 days,
the named person may request a meeting with the Assistant Secretary to present its position.
(d) If the named person fails to demonstrate by clear and convincing evidence that it would have
taken the same unfavorable personnel action in the absence of the behavior protected by the Act,
the Assistant Secretary will conduct an investigation. Investigations will be conducted in a
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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) Prior to the issuance of findings and a preliminary order as provided for in §1980.105, if the
Assistant Secretary has reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the named person has violated the Act and that
preliminary reinstatement is warranted, the Assistant Secretary will again contact the named
person 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 named person will be given the opportunity to submit a written response, to meet with the
investigators to present statements from witnesses in support of its position, and to present legal
and factual arguments. The named person will be directed to present this evidence within ten
business days of the Assistant Secretary’s notification pursuant to this paragraph, or as soon
afterwards as the Assistant Secretary and the named person can agree, if the interests of justice
so require.
§ 1980.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during the investigation, the Assistant
Secretary will issue, within 60 days of filing of the complaint, written findings as to whether or
not there is reasonable cause to believe that the named person has discriminated 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, he or she 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: where appropriate, reinstatement with the same
seniority status that the employee would have had but for the discrimination; back pay with
interest; and compensation for any special damages sustained as a result of the
discrimination, including litigation costs, expert witness fees, and reasonable attorney’s fees.
Where the named person establishes that the complainant is a security risk (whether or not
the information is obtained after the complainant’s discharge), a preliminary order of
reinstatement would not be appropriate.
(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 the preliminary order will be sent by certified mail, return receipt requested,
to all parties of record. The letter accompanying the findings and order will inform the parties of
their right to file objections and to request a hearing, and of the right of the named person to
request attorney's fees from the ALJ, regardless of whether the named person has filed
objections, if the named person alleges that the complaint was frivolous or brought in bad faith.
The letter also will give the address of the Chief Administrative Law Judge. At the same time,

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the Assistant Secretary will file with the Chief Administrative Law Judge, U.S. Department of
Labor, a copy of the original complaint and a copy of the findings and order.
(c) The findings and the preliminary order will be effective 30 days after receipt by the named
person pursuant to paragraph (b) of this section, unless an objection and a request for a hearing
has been filed as provided at section 1980.106. However, the portion of any preliminary order
requiring reinstatement will be effective immediately upon receipt of the findings and
preliminary order.
Subpart B - Litigation
§ 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 named person alleging that the complaint was frivolous or brought in bad faith who
seeks an award of attorney’s fees, must file any objections and a request for a hearing on the
record within 30 days of receipt of the findings and preliminary order pursuant to paragraph (b)
of section 1980.105. The objection or request for attorney's fees and request for a hearing must
be in writing and state whether the objection is to the findings, the preliminary order, and/or
whether there should be an award of attorney’s fees. The date of the postmark, facsimile
transmittal, or e-mail communication will be considered to be 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,
Washington, D.C. 20001, 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, and the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, D.C.
20210.
(b) (1) If a timely objection is filed, all provisions of the preliminary order will be stayed, except
for the portion requiring preliminary reinstatement. The portion of the preliminary order
requiring reinstatement will be effective immediately upon the named person's receipt of the
findings and preliminary order, regardless of any objections to the order. The named person
may file a motion with the Office of Administrative Law Judges for a stay of the Assistant
Secretary’s preliminary order of reinstatement.
(2) If no timely objection is filed with respect to either the findings or the preliminary order,
the findings or preliminary order, as the case may be, will become the final decision of the
Secretary, not subject to judicial review.
§ 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 hearings before the Office of Administrative Law
Judges, codified at subpart A, part 18 of title 29 of the Code of Federal Regulations.
(b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge
will promptly assign the case to a judge 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
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good cause or unless otherwise agreed to by the parties. Hearings will be conducted as hearings
de novo, on the record. Administrative law judges will have broad discretion to limit discovery
in order to expedite the hearing.
(c) If the complainant and the named person 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 administrative law judge may exclude
evidence that is immaterial, irrelevant, or unduly repetitious.
§ 1980.108 Role of Federal agencies.
(a) (1) The complainant and the named person will be parties in every proceeding. At the
Assistant Secretary's discretion, the Assistant Secretary may participate as a party or may
participate as amicus curiae at any time in the proceedings. This right to participate includes,
but is not limited to, the right to petition for review of a decision of an administrative law
judge, including a decision based on a settlement agreement between complainant and the
named person, to dismiss a complaint or to issue an order encompassing the terms of the
settlement.
(2) Copies of pleadings in all cases, whether or not the Assistant Secretary is participating in
the proceeding, must be sent to the Assistant Secretary, Occupational Safety and Health
Administration, and to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, D.C. 20210.
(b) The SEC may participate as amicus curiae at any time in the proceedings, at the SEC’s
discretion. At the request of the SEC, copies of all pleadings in a case must be sent to the SEC,
whether or not the SEC is participating in the proceeding.
§ 1980.109 Decision and orders of the administrative law judge.
(a) The decision of the administrative law judge will contain appropriate findings, conclusions,
and an order pertaining to the remedies provided in paragraph (b) of this section, as appropriate.
A determination that a violation has occurred may only be made if the complainant has
demonstrated that protected behavior or conduct was a contributing factor in the unfavorable
personnel action alleged in the complaint. Relief may not be ordered if the named person
demonstrates by clear and convincing evidence that it would have taken the same unfavorable
personnel action in the absence of any protected behavior. Neither the Assistant Secretary's
determination to dismiss a complaint without completing an investigation pursuant to
§1980.104(b) nor the Assistant Secretary's determination to proceed with an investigation is
subject to review by the administrative law judge, 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 administrative law judge
will hear the case on the merits.

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(b) If the administrative law judge concludes that the party charged has violated the law, the
order will provide all relief necessary to make the employee whole, including reinstatement of
the complainant to that person's former position with the seniority status that the complainant
would have had but for the discrimination, back pay with interest, and compensation for any
special damages sustained as a result of the discrimination, including litigation costs, expert
witness fees, and reasonable attorney’s fees. If, upon the request of the named person, the
administrative law judge determines that a complaint was frivolous or was brought in bad faith,
the judge may award to the named person a reasonable attorney’s fee, not exceeding $1,000.
(c) The decision will be served upon all parties to the proceeding. Any administrative law
judge'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 named person, and
may not be stayed. All other portions of the judge's order will be effective ten business days
after the date of the decision unless a timely petition for review has been filed with the
Administrative Review Board.
§ 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
administrative law judge, or a named person alleging that the complaint was frivolous or brought
in bad faith who seeks an award of attorney's fees, must file a written petition for review with the
Administrative Review Board (“the Board”), which has been delegated the authority to act for
the Secretary and issue final decisions under this part. The decision of the administrative law
judge will become the final order of the Secretary unless, pursuant to this section, a petition for
review is timely filed with the Board. The petition for review must specifically identify the
findings, conclusions or orders to which exception is taken. Any exception not specifically
urged ordinarily will be deemed to have been waived by the parties. To be effective, a petition
must be filed within ten business days of the date of the decision of the administrative law judge.
The date of the postmark, facsimile transmittal, or e-mail communication 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 Board. Copies of the petition for
review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health
Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, D.C. 20210.
(b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of
the administrative law judge will become the final order of the Secretary unless the Board, 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 administrative law
judge will be inoperative unless and until the Board issues an order adopting the decision, except
that a preliminary order of reinstatement will be effective while review is conducted by the
Board, unless the Board grants a motion to stay the order. The Board will specify the terms
under which any briefs are to be filed. The Board will review the factual determinations of the
administrative law judge under the substantial evidence standard.

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(c) The final decision of the Board will be issued within 120 days of the conclusion of the
hearing, which will be deemed to be the conclusion of all proceedings before the administrative
law judge -- i.e., ten business days after the date of the decision of the administrative law judge
unless a motion for reconsideration has been filed with the administrative law judge in the
interim. The decision will be served upon all parties and the Chief Administrative Law Judge by
mail to the last known address. The final decision will also be served on the Assistant Secretary,
Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor, Washington, D.C. 20210, even if the Assistant
Secretary is not a party.
(d) If the Board concludes that the party charged has violated the law, the final order will order
the party charged to provide all relief necessary to make the employee whole, including
reinstatement of the complainant to that person's former position with the seniority status that the
complainant would have had but for the discrimination, back pay with interest, and
compensation for any special damages sustained as a result of the discrimination, including
litigation costs, expert witness fees, and reasonable attorney’s fees.
(e) If the Board determines that the named person has not violated the law, an order will be
issued denying the complaint. If, upon the request of the named person, the Board determines
that a complaint was frivolous or was brought in bad faith, the Board may award to the named
person a reasonable attorney’s fee, not exceeding $1,000.
Subpart C - Miscellaneous Provisions
§ 1980.111 Withdrawal of complaints, objections, and findings; settlement.
(a) At any time prior to the filing of objections to the findings or preliminary order, a
complainant may withdraw his or her complaint under the Act by filing a written withdrawal
with the Assistant Secretary. The Assistant Secretary will then determine whether the
withdrawal will be approved. The Assistant Secretary will notify the named person of the
approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement
will be approved in accordance with paragraph (d) of this section.
(b) The Assistant Secretary may withdraw his or her findings or a preliminary order at any time
before the expiration of the 30-day objection period described in section 1980.106, provided that
no objection has yet been filed, and substitute new findings or preliminary order. The date of the
receipt of the substituted findings or order will begin a new 30-day objection period.
(c) At any time before the findings or order become final, a party may withdraw his or her
objections to the findings or order by filing a written withdrawal with the administrative law
judge or, if the case is on review, with the Board. The judge or the Board, as the case may be,
will determine whether the withdrawal will be approved. If the objections are withdrawn
because of settlement, the settlement will be approved 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

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may be settled if the Assistant Secretary, the complainant and the named person agree to a
settlement.
(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 administrative law judge if the case is before
the judge, or by the Board if a timely petition for review has been filed with the Board. A
copy of the settlement will be filed with the administrative law judge or the Board, as the
case may be.
(e) Any settlement approved by the Assistant Secretary, the administrative law judge, or the
Board, will constitute the final order of the Secretary and may be enforced pursuant to
§1980.113.
§ 1980.112 Judicial review.
(a) Within 60 days after the issuance of a final order under § 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. A final order of the Board is not subject to
judicial review in any criminal or other civil proceeding.
(b) If a timely petition for review is filed, the record of a case, including the record of
proceedings before the administrative law judge, will be transmitted by the Board to the
appropriate court pursuant to the rules of the court.
§ 1980.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order of reinstatement or a
final order or the terms of a settlement agreement, the Secretary or a person on whose behalf the
order was issued 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.
§ 1980.114 District Court jurisdiction of discrimination complaints.
(a) If the Board 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 an action without regard to the
amount in controversy.
(b) Fifteen days in advance of filing a complaint in federal court, a complainant must file with
the administrative law judge or the Board, depending upon where the proceeding is pending, a
notice of his or her intention to file such a complaint. The notice must be served upon all parties
to the proceeding. If the Assistant Secretary is not a party, a copy of the notice must be served
on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, D.C. 20210.

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§ 1980.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of this part, or for good cause
shown, the administrative law judge or the Board on review may, upon application, after three
days notice to all parties and interveners, waive any rule or issue any orders that justice or the
administration of the Act requires.

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