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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations
approval in accordance with paragraph
(d) of this section. A complainant may
not withdraw his or her complaint after
the filing of objections to the Assistant
Secretary’s findings and preliminary
order.
(b) The Assistant Secretary may
withdraw his or her findings and/or a
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1982.106,
provided that no objection yet has been
filed, and substitute new findings and/
or a preliminary order. The date of the
receipt of the substituted findings or
order will begin a new 30-day objection
period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw its
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If a case is on
review with the ARB, a party may
withdraw its petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the
Assistant Secretary’s findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, and
before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if the Assistant Secretary, the
complainant, and the respondent agree
to a settlement. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates his or her
consent and achieves the consent of all
three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the ALJ, or by the ARB if the ARB has
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accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB, as the case may be.
(e) Any settlement approved by the
Assistant Secretary, the ALJ, or the ARB
will constitute the final order of the
Secretary and may be enforced pursuant
to § 1982.113.
§ 1982.112
Judicial review.
(a) Within 60 days after the issuance
of a final order under §§ 1982.109 and
1982.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order of the ARB is not
subject to judicial review in any
criminal or other civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of the court.
§ 1982.113
Judicial enforcement.
Whenever any person has failed to
comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under NTSSA, 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. Whenever a person has failed
to comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under FRSA, the Secretary may
file a civil action seeking enforcement of
the order in the United States district
court for the district in which the
violation was found to have occurred. In
such civil actions under NTSSA and
FRSA, the district court will have
jurisdiction to grant all appropriate
relief, including, but not limited to,
injunctive relief and compensatory
damages, including:
(1) Reinstatement with the same
seniority status that the employee
would have had, but for the retaliation;
(2) The amount of back pay, with
interest; and
(3) Compensation for any special
damages sustained as a result of the
retaliation, including litigation costs,
expert witness fees, and reasonable
attorney’s fees.
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§ 1982.114 District Court jurisdiction of
retaliation complaints.
(a) If there is no final order of the
Secretary, 210 days have passed since
the filing of the complaint, and there is
no showing that there has been delay
due to the bad faith of the complainant,
the complainant may bring an action at
law or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy.
(b) Fifteen days in advance of filing a
complaint in Federal court, a
complainant must file with the
Assistant Secretary, the ALJ, or the ARB,
depending upon where the proceeding
is pending, a notice of his or her
intention to file such complaint. The
notice must be served on all parties to
the proceeding. A copy of the notice
must be served on the Regional
Administrator, the Assistant Secretary,
Occupational Safety and Health
Administration, and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
The complainant shall file and serve a
copy of the district court complaint on
the above as soon as possible after the
district court complaint has been filed
with the court.
§ 1982.115
of rules.
Special circumstances; waiver
In special circumstances not
contemplated by the provisions of these
rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three days notice to all
parties, waive any rule or issue such
orders that justice or the administration
of NTSSA or FRSA requires.
[FR Doc. 2010–21128 Filed 8–30–10; 8:45 am]
BILLING CODE 4510–26–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1983
[Docket Number OSHA–2010–0006]
RIN 1218–AC47
Procedures for the Handling of
Retaliation Complaints Under Section
219 of the Consumer Product Safety
Improvement Act of 2008
Occupational Safety and Health
Administration, Labor.
ACTION: Interim Final rule; request for
comments.
AGENCY:
This document provides the
interim final text of regulations
SUMMARY:
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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 / Rules and Regulations
governing the employee protection (or
‘‘whistleblower’’) provisions of the
Consumer Product Safety Improvement
Act of 2008 (‘‘CPSIA’’). This rule
establishes procedures and time frames
for the handling of retaliation
complaints under CPSIA, including
procedures and time frames for
employee complaints to the
Occupational Safety and Health
Administration (‘‘OSHA’’),
investigations by OSHA, appeals of
OSHA determinations to an
administrative law judge (‘‘ALJ’’) for a
hearing de novo, hearings by ALJs,
review of ALJ decisions by the
Administrative Review Board (‘‘ARB’’)
(acting on behalf of the Secretary) and
judicial review of the Secretary’s final
decision.
DATES: This interim final rule is
effective on August 31, 2010. Comments
and additional materials must be
submitted (post-marked, sent or
received) by November 1, 2010.
ADDRESSES: You may submit comments
and attachments electronically at
http://www.regulations.gov, which is
the Federal eRulemaking Portal. Follow
the instructions online for making
electronic submissions.
Fax: If your submissions, including
attachments, do not exceed 10 pages,
you may fax them to the OSHA Docket
Office at (202) 693–1648.
Mail, hand delivery, express mail,
messenger or courier service: You must
submit your comments and attachments
to the OSHA Docket Office, Docket No.
OSHA–2010–0006, U.S. Department of
Labor, Room N–2625, 200 Constitution
Avenue, NW., Washington, DC 20210.
Deliveries (hand, express mail,
messenger and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m., e.t.
Instructions: All submissions must
include the Agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA–2010–0006).
Submissions, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at http://
www.regulations.gov. Therefore, OSHA
cautions you about submitting personal
information such as social security
numbers and birth dates.
Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g., copyrighted
material) is not publicly available to
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read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
Nilgun Tolek, Director, Office of the
Whistleblower Protection Program,
Occupational Safety and Health
Administration, U.S. Department of
Labor, Room N–3610, 200 Constitution
Avenue, NW., Washington, DC 20210;
telephone (202) 693–2199. This is not a
toll-free number. The alternative formats
available are large print, electronic file
on computer disk (Word Perfect, ASCII,
Mates with Duxbury Braille System) and
audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
The Consumer Product Safety
Improvement Act of 2008 (‘‘CPSIA’’ or
‘‘the Act’’), Public Law 110–314, was
enacted on August 14, 2008. Section 219
of the Act, codified at 15 U.S.C. 2087,
provides protection to employees
against retaliation by a manufacturer,
private labeler, distributor, or retailer,
because they provided to their
employer, the Federal Government or
the attorney general of a State,
information relating to any violation of,
or any act or omission the employees
reasonably believe to be a violation of,
any provision of an Act enforced by the
Consumer Product Safety Commission
(‘‘Commission’’), or any order, rule,
regulation, standard, or ban under any
such Act. The statutes enforced by the
Commission include the Consumer
Product Safety Act (‘‘CPSA’’), as
amended by the CPSIA (15 U.S.C. 2051
et seq.), the Children’s Gasoline Burn
Prevention Act (Pub. L. 110–278, 122
Stat. 2602 (2008)), the Federal
Hazardous Substances Act (15 U.S.C.
1261 et seq.), the Flammable Fabrics Act
(15 U.S.C. 1191 et seq.), the Poison
Prevention Packaging Act (15 U.S.C.
1471 et seq.), the Refrigerator Safety Act
(15 U.S.C. 1211 et seq.), and the Virginia
Graeme Baker Pool and Spa Safety Act
(15 U.S.C. 8001 et seq.). These rules
establish procedures for the handling of
whistleblower complaints under CPSIA.
II. Summary of Statutory Procedures
CPSIA’s whistleblower provisions
include procedures that allow a covered
employee to file, within 180 days of the
alleged retaliation, a complaint with the
Secretary of Labor (‘‘the Secretary’’).
Upon receipt of the complaint, the
Secretary must provide written notice to
the person or persons named in the
complaint alleged to have violated the
Act (‘‘respondent’’) of the filing of the
complaint, the allegations contained in
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the complaint, the substance of the
evidence supporting the complaint, and
the rights afforded the respondent
throughout the investigation. The
Secretary must then, within 60 days of
receipt of the complaint, afford the
respondent an opportunity to submit a
response and meet with the investigator
to present statements from witnesses,
and conduct an investigation.
The Secretary may conduct an
investigation only if the complainant
has made a prima facie showing that the
protected activity was a contributing
factor in the adverse action alleged in
the complaint and the respondent has
not demonstrated, through clear and
convincing evidence, that the employer
would have taken the same adverse
action in the absence of that activity.
After investigating a complaint, the
Secretary will issue written findings. If,
as a result of the investigation, the
Secretary finds there is reasonable cause
to believe that retaliation has occurred,
the Secretary must notify the
respondent of those findings, along with
a preliminary order that requires the
respondent to: take affirmative action to
abate the violation; reinstate the
complainant to his or her former
position together with the compensation
of that position (including back pay)
and restore the terms, conditions, and
privileges associated with his or her
employment; and provide compensatory
damages to the complainant, as well as
costs and attorney’s and expert witness
fees reasonably incurred by the
complainant for, or in connection with,
the bringing of the complaint upon
which the order was issued.
The complainant and the respondent
then have 30 days after the date of the
Secretary’s notification in which to file
objections to the findings and/or
preliminary order and request a hearing
before an ALJ. The filing of objections
under CPSIA will stay any remedy in
the preliminary order except for
preliminary reinstatement. If a hearing
before an ALJ is not requested within 30
days, the preliminary order becomes
final and is not subject to judicial
review.
If a hearing is held, CPSIA requires
the hearing to be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of any
hearing in which to issue a final order,
which may provide appropriate relief or
deny the complaint. Until the
Secretary’s final order is issued, the
Secretary, the complainant, and the
respondent may enter into a settlement
agreement that terminates the
proceeding. Where the Secretary has
determined that a violation has
occurred, the Secretary, where
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appropriate, will assess against the
respondent a sum equal to the total
amount of all costs and expenses,
including attorney’s and expert witness
fees, reasonably incurred by the
complainant for, or in connection with,
the bringing of the complaint upon
which the Secretary issued the order.
The Secretary also may award a
prevailing employer a reasonable
attorney’s fee, not exceeding $1,000, if
the Secretary finds that the complaint is
frivolous or has been brought in bad
faith. Within 60 days of the issuance of
the final order, any person adversely
affected or aggrieved by the Secretary’s
final order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation occurred
or the circuit where the complainant
resided on the date of the violation.
CPSIA permits the employee to seek
de novo review of the complaint by a
United States district court in the event
that the Secretary has not issued a final
decision within 210 days after the filing
of the complaint, or within 90 days after
receiving a written determination. The
provision provides that the court will
have jurisdiction over the action
without regard to the amount in
controversy and that the case will be
tried before a jury at the request of
either party.
III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of
the statutory language of CPSIA.
Responsibility for receiving and
investigating complaints under CPSIA
also has been delegated to the Assistant
Secretary (Secretary’s Order 5–2007, 72
FR 31160, June 5, 2007). Hearings on
determinations by the Assistant
Secretary are conducted by the Office of
Administrative Law Judges, and appeals
from decisions by administrative law
judges are decided by the ARB
(Secretary’s Order 1–2010 (Jan. 15,
2010), 75 FR 3924–01, (Jan. 25, 2010)).
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
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Section 1983.100
Purpose and Scope
This section describes the purpose of
the regulations implementing CPSIA
and provides an overview of the
procedures covered by these
regulations.
Section 1983.101
Definitions
This section includes general
definitions from the CPSA, which are
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applicable to the whistleblower
provisions of the CPSIA, including a
definition of the term ‘‘consumer
product.’’ See 15 U.S.C. 2052(a)(5). The
CPSA defines ‘‘distributor’’ as ‘‘a person
to whom a consumer product is
delivered or sold for purposes of
distribution in commerce, except that
such term does not include a
manufacturer or retailer of such
product.’’ 15 U.S.C. 2052(a)(8). The
CPSA defines ‘‘manufactured’’ as ‘‘to
manufacture, produce, or assemble,’’
and defines ‘‘manufacturer’’ as ‘‘any
person who manufactures or imports a
consumer product.’’ 15 U.S.C.
2052(a)(10) and (11), respectively.
‘‘Private labeler’’ is defined by the CPSA
as ‘‘an owner of a brand or trademark on
the label of a consumer product which
bears a private label.’’ 15 U.S.C.
2052(a)(12). Section 2052(a)(12)(B)
further provides that a ‘‘consumer
product bears a private label if (i) the
product (or its container) is labeled with
the brand or trademark of a person other
than a manufacturer of the product, (ii)
the person with whose brand or
trademark the product (or container) is
labeled has authorized or caused the
product to be so labeled, and (iii) the
brand or trademark of a manufacturer of
such product does not appear on such
label.’’ 15 U.S.C. 2052(a)(12)(B). The
CPSA defines ‘‘retailer’’ as ‘‘a person to
whom a consumer product is delivered
or sold for purposes of sale or
distribution by such person to a
consumer.’’ 15 U.S.C. 2052(a)(13).
Section 1983.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under CPSIA, and the
conduct that is prohibited in response to
any protected activities. For purposes of
§ 1983.102(c), the ARB has interpreted
the phrase ‘‘deliberate violations’’ for the
purpose of denying protection to an
employee under the Energy
Reorganization Act’s similar provision
as including an element of willfulness.
See Fields v. U.S. Dep’t of Labor,
Admin. Review Bd., 173 F.3d 811, 814
(11th Cir. 1999) (petitioners knowingly
conducted unauthorized and potentially
dangerous experiments).
Section 1983.103 Filing of Retaliation
Complaint
This section explains the requirement
for filing a retaliation complaint under
CPSIA. To be timely, a complaint must
be filed within 180 days of when the
alleged violation occurs. Under
Delaware State College v. Ricks, 449
U.S. 250, 258 (1980), this is considered
to be when the retaliatory decision has
been both made and communicated to
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53535
the complainant. In other words, the
limitations period commences once the
employee is aware or reasonably should
be aware of the employer’s decision.
Equal Employment Opportunity
Commission v. United Parcel Service,
249 F.3d 557, 561–62 (6th Cir. 2001).
Complaints filed under CPSIA need not
be in any particular form. They may be
either oral or in writing. If the
complainant is unable to file the
complaint in English, OSHA will accept
the complaint in any language. With the
consent of the employee, complaints
may be filed by any person on the
employee’s behalf.
Section 1983.104 Investigation
This section describes the procedures
that apply to the investigation of CPSIA
complaints. Paragraph (a) of this section
outlines the procedures for notifying the
parties and the Consumer Product
Safety Commission of the complaint and
notifying the respondent of its rights
under these regulations. Paragraph (b)
describes the procedures for the
respondent to submit its response to the
complaint. Paragraph (c) addresses
disclosure to the complainant of
respondent’s submissions to the agency
that are responsive to the complaint.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations. Paragraph (e) of
this section sets forth CPSIA’s statutory
burdens of proof. Paragraph (f) describes
the procedures the Assistant Secretary
will follow prior to the issuance of
findings and a preliminary order when
the Assistant Secretary has reasonable
cause to believe that a violation has
occurred.
The statute requires that a
complainant make an initial prima facie
showing that protected activity was ‘‘a
contributing factor’’ in the adverse
action alleged in the complaint, i.e., that
the protected activity, alone or in
combination with other factors, affected
in some way the outcome of the
employer’s decision. If the complainant
does not make the prima facie showing,
the investigation must be discontinued
and the complaint dismissed. See
Trimmer v. U.S. Dep’t of Labor, 174
F.3d 1098, 1101 (10th Cir. 1999) (noting
that the burden-shifting framework of
the ERA, which is the same as that
under CPSIA, served a ‘‘gatekeeping
function’’ that ‘‘stemm[ed] frivolous
complaints’’). Even in cases where the
complainant successfully makes a prima
facie showing, the investigation must be
discontinued if the employer
‘‘demonstrates, by clear and convincing
evidence,’’ that it would have taken the
same adverse action in the absence of
the protected activity. Thus, the
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Secretary must dismiss a complaint
under CPSIA and not investigate (or
cease investigating) if either: (1) The
complainant fails to meet the prima
facie showing that protected activity
was a contributing factor in the adverse
action; or (2) the employer rebuts that
showing by clear and convincing
evidence that it would have taken the
same adverse action absent the
protected activity.
Assuming that an investigation
proceeds beyond the gatekeeping phase,
the statutory burdens of proof require an
employee to prove that the alleged
protected activity was a ‘‘contributing
factor’’ to the alleged adverse action. If
the employee proves that the alleged
protected activity was a contributing
factor to the adverse action, the
employer, to escape liability, must
prove by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. A contributing factor
is ‘‘any factor which, alone or in
connection with other factors, tends to
affect in any way the outcome of the
decision.’’ Marano v. Dep’t of Justice,
2 F.3d 1137, 1140 (Fed. Cir. 1993)
(Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)). In proving that protected
activity was a contributing factor in the
adverse action, ‘‘a complainant need not
necessarily prove that the respondent’s
articulated reason was a pretext in order
to prevail,’’ because a complainant
alternatively can prevail by showing
that the respondent’s ‘‘‘reason, while
true, is only one of the reasons for its
conduct,’’’ and that another reason was
the complainant’s protected activity.
See Klopfenstein v. PCC Flow Techs.
Holdings, Inc., No. 04–149, 2006 WL
3246904, *13 (ARB May 31, 2006)
(discussing contributing factor test
under the whistleblower provisions of
Section 806 of the Corporate and
Criminal Fraud Accountability Act of
2002, Title VIII of the Sarbanes-Oxley
Act of 2002 (‘‘SOX’’), 18 U.S.C. 1514A)
(citing Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004)).
CPSIA’s burdens of proof do not
address the evidentiary standard that
applies to a complainant’s proof that
protected activity was a contributing
factor in an adverse action. CPSIA
simply provides that the Secretary may
find a violation only ‘‘if the complainant
demonstrates’’ that protected activity
was a contributing factor in the alleged
adverse action. See 15 U.S.C.
2087(b)(2)(B)(iii). It is the Secretary’s
position that the complainant must
prove by a ‘‘preponderance of the
evidence’’ that his or her protected
activity contributed to the adverse
action; otherwise the burden never
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shifts to the employer to establish its
defense by ‘‘clear and convincing
evidence.’’ See, e.g., Allen v. Admin.
Review Bd., 514 F.3d 468, 475 n.1 (5th
Cir. 2008) (‘‘The term ‘demonstrate’
[under 42121(b)(2)(B)(iii)] means to
prove by a preponderance of the
evidence.’’). Once the complainant
establishes that the protected activity
was a contributing factor in the adverse
action, the employer can escape liability
only by proving by clear and convincing
evidence that it would have reached the
same decision even in the absence of the
prohibited rationale. The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof than a
‘‘preponderance of the evidence’’
standard.
Section 1983.105 Issuance of Findings
and Preliminary Orders
This section provides that, on the
basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, the
Assistant Secretary will order
appropriate relief, including
preliminary reinstatement. The findings
and, where appropriate, preliminary
order, advise the parties of their right to
file objections to the findings of the
Assistant Secretary and to request a
hearing. The findings and, where
appropriate, preliminary order, also
advise the respondent of the right to
request attorney’s fees not exceeding
$1,000 from the ALJ, regardless of
whether the respondent has filed
objections, if the respondent alleges that
the complaint was frivolous or brought
in bad faith. If no objections are filed
within 30 days of receipt of the findings,
the findings and any preliminary order
of the Assistant Secretary become the
final decision and order of the
Secretary. If objections are timely filed,
any order of preliminary reinstatement
will take effect, but the remaining
provisions of the order will not take
effect until administrative proceedings
are completed.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he
received prior to his termination, but
not actually return to work. Such
‘‘economic reinstatement’’ frequently is
employed in cases arising under Section
105(c) of the Federal Mine Safety and
Health Act of 1977. See, e.g., Secretary
of Labor on behalf of York v. BR&D
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Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (June 26, 2001). Congress
intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause that they were discharged in
violation of CPSIA. When a violation is
found, the norm is for OSHA to order
immediate preliminary reinstatement.
An employer does not have a statutory
right to choose economic reinstatement.
Rather, economic reinstatement is
designed to accommodate situations in
which evidence establishes to OSHA’s
satisfaction that reinstatement is
inadvisable for some reason,
notwithstanding the employer’s
retaliatory discharge of the employee. In
such situations, actual reinstatement
might be delayed until after the
administrative adjudication is
completed as long as the employee
continues to receive his or her pay and
benefits and is not otherwise
disadvantaged by a delay in
reinstatement. There is no statutory
basis for allowing the employer to
recover the costs of economically
reinstating an employee should the
employer ultimately prevail in the
whistleblower adjudication.
Subpart B—Litigation
Section 1983.106 Objections to the
Findings and the Preliminary Order and
Request for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor, Washington, DC
20001, within 30 days of receipt of the
findings. The date of the postmark,
facsimile transmittal, or e-mail
communication is considered the date
of the filing; if the objection is filed in
person, by hand-delivery or other
means, the objection is filed upon
receipt. The filing of objections also is
considered a request for a hearing before
an ALJ. Although the parties are
directed to serve a copy of their
objections on the other parties of record,
as well as the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor, the failure to serve
copies of the objections on the other
parties of record does not affect the
ALJ’s jurisdiction to hear and decide the
merits of the case. See Shirani v. Calvert
Cliffs Nuclear Power Plant, Inc., No. 04–
101, 2005 WL 2865915, *7 (ARB Oct.
31, 2005).
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Section 1983.107
Hearings
This section adopts the rules of
practice and evidence of the Office of
Administrative Law Judges at 29 CFR
part 18. The section specifically
provides for consolidation of hearings if
both the complainant and respondent
object to the findings and/or order of the
Assistant Secretary. Otherwise, this
section does not address procedural
issues, e.g., place of hearing, right to
counsel, procedures, evidence and
record of hearing, oral arguments and
briefs, and dismissal for cause, because
the Office of Administrative Law Judges
has adopted its own rules of practice
that cover these matters.
Section 1983.108
Agencies
Role of Federal
Under CPSIA it is not expected that
the Secretary will ordinarily appear as
a party in the proceeding. Nevertheless,
the Assistant Secretary, at his or her
discretion, may participate as a party or
amicus curiae at any time in the
administrative proceedings. For
example, the Assistant Secretary may
exercise his or her discretion to
prosecute the case in the administrative
proceeding before an ALJ; petition for
review of a decision of an ALJ,
including a decision based on a
settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or
participate as amicus curiae before the
ALJ or in the ARB proceeding. Although
we anticipate that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, large numbers of employees,
alleged violations that appear egregious,
or where the interests of justice might
require participation by the Assistant
Secretary. The Consumer Product Safety
Commission, at its own discretion, also
may participate as amicus curiae at any
time in the proceedings.
emcdonald on DSK2BSOYB1PROD with RULES_2
Section 1983.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the content of
the decision and order of the ALJ, and
includes the standard for finding a
violation under CPSIA. The section
further provides that the Assistant
Secretary’s determination to dismiss the
complaint without an investigation or
without a complete investigation
pursuant to section 1983.104 is not
subject to review. Thus, paragraph (c) of
section 1983.109 clarifies that the
Assistant Secretary’s determinations on
whether to proceed with an
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investigation under CPSIA and whether
to make particular investigative findings
are discretionary decisions not subject
to review by the ALJ. The ALJ hears
cases de novo and, therefore, as a
general matter, may not remand cases to
the Assistant Secretary to conduct an
investigation or make further factual
findings. A full discussion of the
burdens of proof used by the
Department of Labor to resolve
whistleblower cases under this part is
set forth above in the discussion of
section 1983.104.
Section 1983.110 Decision of the
Administrative Review Board
Upon the issuance of the ALJ’s
decision, the parties have 10 business
days within which to petition the ARB
for review of that decision. If no timely
petition for review is filed with the
ARB, the decision of the ALJ becomes
the final decision of the Secretary and
is not subject to judicial review. The
date of the postmark, facsimile
transmittal, or e-mail communication is
considered the date of filing of the
petition; if the petition is filed in
person, by hand delivery or other
means, the petition is considered filed
upon receipt.
The appeal provisions in this part
provide that an appeal to the ARB is not
a matter of right but is accepted at the
discretion of the ARB. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections will
ordinarily be deemed waived. The ARB
has 30 days to decide whether to grant
the petition for review. If the ARB does
not grant the petition, the decision of
the ALJ becomes the final decision of
the Secretary. If a timely petition for
review is filed with the ARB, any relief
ordered by the ALJ, except for that
portion ordering reinstatement, is
inoperative while the matter is pending
before the ARB. When the ARB accepts
a petition for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard.
This section also provides that in the
exceptional case, the ARB may grant a
motion to stay an ALJ’s preliminary
order of reinstatement under CPSIA,
which otherwise would be effective,
while review is conducted by the ARB.
The Secretary believes that a stay of an
ALJ’s preliminary order of reinstatement
under CPSIA would be appropriate only
where the respondent can establish the
necessary criteria for equitable
injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, and
a balancing of possible harms to the
parties and the public favors a stay.
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Subpart C—Miscellaneous Provisions
Section 1983.111 Withdrawal of
Complaints, Objections, and Petitions
for Review; Settlement
This section provides for the
procedures and time periods for
withdrawal of complaints, the
withdrawal of findings and/or
preliminary orders by the Assistant
Secretary, and the withdrawal of
objections to findings and/or orders. It
also provides for approval of settlements
at the investigative and adjudicative
stages of the case.
Section 1983.112 Judicial Review
This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
the ARB to submit the record of
proceedings to the appropriate court
pursuant to the rules of such court.
Section 1983.113 Judicial Enforcement
This section describes the Secretary’s
power under CPSIA to obtain judicial
enforcement of orders and the terms of
a settlement agreement.
CPSIA expressly authorizes district
courts to enforce orders, including
preliminary orders of reinstatement,
issued by the Secretary under 15 U.S.C.
2087(b)(6) (‘‘Whenever any person has
failed to comply with an order issued
under paragraph (3), the Secretary may
file a civil action in the United States
district court for the district in which
the violation was found to occur, or in
the United States district court for the
District of Columbia, to enforce such
order.’’). Specifically, reinstatement
orders issued under 15 U.S.C.
2087(b)(2)(A) are immediately
enforceable in district court under 15
U.S.C. 2087(b)(6) and (7). Subsection
2087(b)(3)(B)(ii) provides that the
Secretary shall order the person who
has committed a violation to reinstate
the complainant to his or her former
position. Subsection 2087(b)(2)(A)
instructs the Secretary to accompany
any reasonable cause finding that a
violation occurred with a preliminary
order containing the relief prescribed by
subsection (b)(3)(B), which includes
reinstatement. See 15 U.S.C.
2087(b)(3)(B)(ii). Subsection (b)(2)(A)
also declares that the subsection
(b)(3)(B)’s relief of reinstatement
contained in a preliminary order is not
stayed upon the filing of objections. 15
U.S.C. 2087(b)(2)(A) (‘‘The filing of such
objections shall not operate to stay any
reinstatement remedy contained in the
preliminary order.’’). Thus, under the
statute, enforceable orders issued under
subsection (b)(3) include preliminary
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orders that contain the relief of
reinstatement prescribed by subsection
(b)(3)(B). This statutory interpretation is
consistent with the Secretary’s
interpretation of similar language in
AIR21 and SOX. But see Bechtel v.
Competitive Technologies, Inc., 448
F.3d 469 (2d Cir. 2006); Welch v.
Cardinal Bankshares Corp., 454 F.
Supp. 2d 552 (W.D. Va. 2006) (decision
vacated, appeal dismissed, No. 06–2995
(4th Cir. Feb. 20, 2008)). CPSIA also
permits the person on whose behalf the
order was issued under CPSIA to obtain
judicial enforcement or orders and the
terms of a settlement agreement.
Section 1983.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth CPSIA’s
provisions allowing a complainant to
bring an original de novo action in
district court, alleging the same
allegations contained in the complaint
filed with OSHA, if there has been no
final decision of the Secretary within
210 days of the filing of the complaint,
or within 90 days after receiving a
written determination. It also requires
complainants to provide notice 15 days
in advance of their intent to file a
complaint in district court.
It is the Secretary’s position that
complainants may not initiate an action
in federal court after the Secretary
issues a final decision, even if the date
of the final decision is more than 210
days after the filing of the complaint.
The purpose of the ‘‘kick-out’’ provisions
is to aid the complainant in receiving a
prompt decision. That goal is not
implicated in a situation where the
complainant already has received a final
decision from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals.
emcdonald on DSK2BSOYB1PROD with RULES_2
Section 1983.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of CPSIA
requires.
IV. Paperwork Reduction Act
This rule does not contain a reporting
provision that is subject to review by the
Office of Management and Budget
(‘‘OMB’’) under the provisions of the
Paperwork Reduction Act of 1995 (Pub.
L. 104–13).
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V. Administrative Procedure Act
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (‘‘APA’’)
do not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure and practice
within the meaning of that section.
Therefore, publication in the Federal
Register of a notice of proposed
rulemaking and request for comments
are not required for these regulations,
which provide the procedures for the
handling of retaliation complaints.
Although this is a procedural rule not
subject to the notice and comment
procedures of the APA, we are
providing persons interested in this
interim final rule 60 days to submit
comments. A final rule will be
published after the agency receives and
reviews the public’s comments.
Furthermore, because this rule is
procedural rather than substantive, the
normal requirement of 5 U.S.C. 553(d)
that a rule be effective 30 days after
publication in the Federal Register is
inapplicable. The Assistant Secretary
also finds good cause to provide an
immediate effective date for this interim
final rule. It is in the public interest that
the rule be effective immediately so that
parties may know what procedures are
applicable to pending cases.
VI. Executive Order 12866; Unfunded
Mandates Reform Act of 1995; Small
Business Regulatory Enforcement
Fairness Act of 1996; Executive Order
13132
The Department has concluded that
this rule should be treated as a
‘‘significant regulatory action’’ within
the meaning of Section 3(f)(4) of
Executive Order 12866 because the
CPSIA whistleblower provisions are
new. Executive Order 12866 requires a
full economic impact analysis only for
‘‘economically significant’’ rules, which
are defined in Section 3(f)(1) as rules
that may ‘‘have an annual effect on the
economy of $100 million or more, or
adversely affect in a material way the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities.’’ Because
the rule is procedural in nature, it is not
expected to have a significant economic
impact, therefore, no economic impact
analysis has been prepared. For the
same reason, the rule does not require
a Section 202 statement under the
Unfunded Mandates Reform Act of 1995
(2 U.S.C. 1531 et seq.). Furthermore,
because this is a rule of agency
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procedure and practice, it is not a ‘‘rule’’
within the meaning of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (5 U.S.C.
804(3)(C)), and does not require
Congressional review. Finally, this rule
does not have ‘‘federalism implications.’’
The rule does not have ‘‘substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government’’ and therefore is
not subject to Executive Order 13132
(Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that
the regulation will not have a significant
economic impact on a substantial
number of small entities. The regulation
simply implements procedures
necessitated by enactment of CPSIA.
Furthermore, no certification to this
effect is required and no regulatory
flexibility analysis is required because
no proposed rule has been issued.
Document Preparation: This
document was prepared under the
direction and control of the Assistant
Secretary, Occupational Safety and
Health Administration, U.S. Department
of Labor.
List of Subjects in 29 CFR Part 1983
Administrative practice and
procedure, Employment, Consumer
protection, Investigations, Reporting
and recordkeeping requirements,
Whistleblower.
Signed at Washington, DC, August 19,
2010.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
Accordingly, for the reasons set out in
the preamble, 29 CFR part 1983 is added
to read as follows:
■
PART 1983—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER SECTION 219
OF THE CONSUMER PRODUCT
SAFETY IMPROVEMENT ACT OF 2008.
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec.
1983.100 Purpose and scope.
1983.101 Definitions.
1983.102 Obligations and prohibited acts.
1983.103 Filing of retaliation complaint.
1983.104 Investigation.
1983.105 Issuance of findings and
preliminary orders.
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Subpart B—Litigation
1983.106 Objections to the findings and the
preliminary order and request for a
hearing.
1983.107 Hearings.
1983.108 Role of Federal agencies.
1983.109 Decision and orders of the
administrative law judge.
1983.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1983.111 Withdrawal of complaints,
objections, and findings; settlement.
1983.112 Judicial review.
1983.113 Judicial enforcement.
1983.114 District court jurisdiction of
retaliation complaints.
1983.115 Special circumstances; waiver of
rules.
Authority: 15 U.S.C. 2087; Secretary of
Labor’s Order No. 5–2007, 72 FR 31160 (June
5, 2007); Secretary of Labor’s Order No.
1–2010 (Jan. 15, 2010), 75 FR 3924–01 (Jan.
25, 2010).
Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders
§ 1983.100
Purpose and scope.
(a) This part implements procedures
of the employee protection provision of
the Consumer Product Safety
Improvement Act (CPSIA), 15 U.S.C.
2087. CPSIA provides for employee
protection from retaliation because the
employee has engaged in protected
activity pertaining to consumer product
safety.
(b) This part establishes procedures
under the CPSIA for the expeditious
handling of retaliation complaints filed
by employees, or by persons acting on
their behalf. These rules, together with
those codified at 29 CFR part 18, set
forth the procedures for submission of
complaints under CPSIA, investigations,
issuance of findings and preliminary
orders, objections to findings and
orders, litigation before administrative
law judges, post-hearing administrative
review, and withdrawals and
settlements.
emcdonald on DSK2BSOYB1PROD with RULES_2
§ 1983.101
Definitions.
(a) 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 CPSIA.
(b) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(c) Commission means the Consumer
Product Safety Commission.
(d) Complainant means the employee
who filed a CPSIA complaint or on
whose behalf a complaint was filed.
(e) (1) Consumer product means any
article, or component part thereof,
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produced or distributed for sale to a
consumer for use in or around a
permanent or temporary household or
residence, a school, in recreation, or
otherwise, or for the personal use,
consumption or enjoyment of a
consumer in or around a permanent or
temporary household or residence, a
school, in recreation, or otherwise (the
term ‘‘consumer product’’ includes any
mechanical device which carries or
conveys passengers along, around, or
over a fixed or restricted route or course
or within a defined area for the purpose
of giving its passengers amusement,
which is customarily controlled or
directed by an individual who is
employed for that purpose and who is
not a consumer with respect to such
device, and which is not permanently
fixed to a site, but does not include such
a device that is permanently fixed to a
site).
(2) The term consumer product does
not include:
(i) Any article which is not
customarily produced or distributed for
sale to, or use or consumption by, or
enjoyment of, a consumer;
(ii) Tobacco and tobacco products;
(iii) Motor vehicles or motor vehicle
equipment (as defined by 49 U.S.C.
30102(a)(6) and (7));
(iv) Pesticides (as defined by the
Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136 et seq.));
(v) Any article or any component of
any such article which, if sold by the
manufacturer, producer, or importer,
would be subject to the tax imposed by
26 U.S.C. 4181;
(vi) Aircraft, aircraft engines,
propellers, or appliances (as defined in
49 U.S.C. 40102(a));
(vii) Boats which could be subjected
to safety regulation under 46 U.S.C.
chapter 43; vessels, and appurtenances
to vessels (other than such boats), which
could be subjected to safety regulation
under title 52 of the Revised Statutes or
other marine safety statutes
administered by the department in
which the Coast Guard is operating; and
equipment (including associated
equipment, as defined in 46 U.S.C.
2101(1)) to the extent that a risk of
injury associated with the use of such
equipment on boats or vessels could be
eliminated or reduced by actions taken
under any statute referred to in this
definitional section;
(viii) Drugs, devices, or cosmetics (as
such terms are defined in 21 U.S.C.
321(g), (h), and (i)); or
(ix) Food (the term ‘‘food’’ means all
‘‘food,’’ as defined in 21 U.S.C. 321(f),
including poultry and poultry products
(as defined in 21 U.S.C. 453(e) and (f)),
meat, meat food products (as defined in
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53539
21 U.S.C. 601(j)), and eggs and egg
products (as defined in 21 U.S.C. 1033)).
(f) CPSIA means Section 219 of the
Consumer Product Safety Improvement
Act of 2008, Public Law 110–314,
August 14, 2008, codified at 15 U.S.C.
2087.
(g) Distributor means a person to
whom a consumer product is delivered
or sold for purposes of distribution in
commerce, except that such term does
not include a manufacturer or retailer of
such product.
(h) Employee means an individual
presently or formerly working for, an
individual applying to work for, or an
individual whose employment could be
affected by a manufacturer, private
labeler, distributor, or retailer.
(i) Manufacturer means any person
who manufactures or imports a
consumer product. A product is
manufactured if it is manufactured,
produced, or assembled.
(j) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(k) Private labeler means an owner of
a brand or trademark on the label of a
consumer product which bears a private
label. A consumer product bears a
private label if:
(i) The product (or its container) is
labeled with the brand or trademark of
a person other than a manufacturer of
the product,
(ii) The person with whose brand or
trademark the product (or container) is
labeled has authorized or caused the
product to be so labeled, and
(iii) The brand or trademark of a
manufacturer of such product does not
appear on such label.
(l) Retailer means a person to whom
a consumer product is delivered or sold
for purposes of sale or distribution by
such person to a consumer.
(m) Respondent means the employer
named in the complaint who is alleged
to have violated the Act.
(n) Secretary means the Secretary of
Labor or person to whom authority
under CPSIA has been delegated.
(o) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
§ 1983.102
acts.
Obligations and prohibited
(a) No manufacturer, private labeler,
distributor, or retailer may discharge or
otherwise retaliate against, including,
but not limited to, intimidating,
threatening, restraining, coercing,
blacklisting or disciplining, any
employee with respect to the
employee’s compensation, terms,
conditions, or privileges of employment
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because the employee, whether at the
employee’s initiative or in the ordinary
course of the employee’s duties (or any
person acting pursuant to a request of
the employee), engaged in any of the
activities specified in paragraphs (b)(1)
through (4) of this section.
(b) An employee is protected against
retaliation (as described in paragraph (a)
of this section) by a manufacturer,
private labeler, distributor, or retailer
because he or she:
(1) Provided, caused to be provided,
or is about to provide or cause to be
provided to the employer, the Federal
Government or the attorney general of a
State, information relating to any
violation of, or any act or omission the
employee reasonably believes to be a
violation of any provision of the
Consumer Product Safety Act, as
amended by CPSIA, or any other Act
enforced by the Commission, or any
order, rule, regulation, standard, or ban
under any such Acts;
(2) Testified, or is about to testify, in
a proceeding concerning such violation;
(3) Assisted or participated, or is
about to assist or participate, in such a
proceeding; or
(4) Objected to, or refused to
participate in, any activity, policy,
practice, or assigned task that the
employee (or other such person)
reasonably believed to be in violation of
any provision of the Consumer Product
Safety Act, as amended by CPSIA, or
any other Act enforced by the
Commission, or any order, rule,
regulation, standard, or ban under any
such Acts.
(c) This part shall have no application
with respect to an employee of a
manufacturer, private labeler,
distributor, or retailer who, acting
without direction from such
manufacturer, private labeler,
distributor, or retailer (or such person’s
agent), deliberately causes a violation of
any requirement relating to any
violation or alleged violation of any
order, regulation, or consumer product
safety standard under the Consumer
Product Safety Act, as amended by
CPSIA, or any other law enforced by the
Commission.
emcdonald on DSK2BSOYB1PROD with RULES_2
§ 1983.103
Filing of retaliation complaints.
(a) Who may file. An employee who
believes that he or she has been
retaliated against by a manufacturer,
private labeler, distributor, or retailer in
violation of CPSIA may file, or have
filed by any person on the employee’s
behalf, a complaint alleging such
retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
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complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA 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: http://www.osha.gov.
(d) Time for filing. Within 180 days
after an alleged violation of CPSIA
occurs, any employee who believes that
he or she has been retaliated against in
violation of the Act may file, or have
filed by any person on the employee’s
behalf, a complaint alleging such
retaliation. The date of the postmark,
facsimile transmittal, e-mail
communication, telephone call, handdelivery, delivery to a third-party
commercial carrier, or in-person filing at
an OSHA office will be considered the
date of filing.
§ 1983.104
Investigation.
(a) Upon receipt of a complaint in the
investigating office, the Assistant
Secretary will notify the respondent of
the filing of the complaint by providing
a copy of the complaint, redacted, if
necessary, in accordance with the
Privacy Act of 1974, 5 U.S.C. 552a, et
seq., and other applicable
confidentiality laws, and will also notify
the respondent of its rights under
paragraphs (b) and (f) of this section.
The Assistant Secretary will provide a
copy of the unredacted complaint to the
complainant (or complainant’s legal
counsel, if complainant is represented
by counsel) and to the Consumer
Product Safety Commission.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
the Assistant Secretary a written
statement and any affidavits or
documents substantiating its position.
Within the same 20 days, the
respondent may request a meeting with
the Assistant Secretary to present its
position.
(c) Throughout the investigation, the
agency will provide to the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
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them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
et seq., and other applicable
confidentiality laws.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of title 29 of the
Code of Federal Regulations.
(e)(1) A complaint of alleged violation
will be dismissed unless the
complainant has made a prima facie
showing that protected activity was a
contributing factor in the adverse action
alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or
suspected, actually or constructively,
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complaint shows that the adverse action
took place shortly after the protected
activity, giving rise to the inference that
it was a contributing factor in the
adverse action. If the required showing
has not been made, the complainant (or
the complainant’s legal counsel, if
complainant is represented by counsel)
will be so notified and the investigation
will not commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint will not
be conducted or will be discontinued if
the respondent, pursuant to the
procedures provided in this paragraph,
demonstrates by clear and convincing
evidence that it would have taken the
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same adverse action in the absence of
the complainant’s protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in the prior paragraph,
the Assistant Secretary will proceed
with the investigation. The investigation
will proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1983.105, if the Assistant Secretary
has reasonable cause, on the basis of
information gathered under the
procedures of this part, to believe that
the respondent has violated CPSIA and
that preliminary reinstatement is
warranted, the Assistant Secretary will
again contact the respondent (or the
respondent’s legal counsel, if
respondent is represented by counsel) to
give notice of the substance of the
relevant evidence supporting the
complainant’s allegations as developed
during the course of the investigation.
This evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The respondent 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
respondent will present this evidence
within 10 business days of the Assistant
Secretary’s notification pursuant to this
paragraph, or as soon thereafter as the
Assistant Secretary and the respondent
can agree, if the interests of justice so
require.
emcdonald on DSK2BSOYB1PROD with RULES_2
§ 1983.105 Issuance of findings and
preliminary orders.
(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of the complaint, written findings as to
whether or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of CPSIA.
(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, where
appropriate, a requirement that the
respondent abate the violation;
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reinstatement of the complainant to his
or her former position, together with the
compensation (including back pay),
terms, conditions and privileges of the
complainant’s employment; payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred.
(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 (and the respondent’s legal
counsel if the respondent is represented
by counsel). The findings and, where
appropriate, the preliminary order will
inform the parties of the right to object
to the findings and/or order and to
request a hearing, and of the right of the
respondent to request attorney’s fees not
exceeding $1,000 from the ALJ,
regardless of whether the respondent
has filed objections, if the complaint
was frivolous or brought in bad faith.
The findings and, where appropriate,
preliminary order, also will give the
address of the Chief Administrative Law
Judge. At the same time, 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/or order.
(c) The findings and the preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or a
request for hearing has been timely filed
as provided at § 1983.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and the
preliminary order, regardless of any
objections to the findings and the order.
Subpart B—Litigation
§ 1983.106 Objections to the findings and
the preliminary order and request for a
hearing.
(a) Any party who desires review,
including judicial review, of the
findings and preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney’s fees
under CPSIA, must file any objections
and/or a request for a hearing on the
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record within 30 days of receipt of the
findings and preliminary order pursuant
to § 1983.105(b). The objections, request
for a hearing, and/or request for
attorney’s fees must be in writing and
state whether the objections are 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 is considered the
date of filing; if the objection is filed in
person, by hand delivery or other
means, the objection is filed upon
receipt. Objections must be filed with
the Chief Administrative Law Judge,
U.S. Department of Labor, Washington,
DC 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, the Assistant Secretary, and the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which shall not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or the preliminary order shall
become the final decision of the
Secretary, not subject to judicial review.
§ 1983.107
Hearings.
(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure and the rules of evidence
for administrative hearings before the
Office of Administrative Law Judges,
codified at 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 good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo, on the record.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be
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consolidated and a single hearing will
be conducted.
§ 1983.108
Role of Federal agencies.
(a)(1) The complainant and the
respondent will be parties in every
proceeding. At the Assistant Secretary’s
discretion, the Assistant Secretary may
participate as a party or as amicus
curiae at any time at any stage of the
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 approving or rejecting a
settlement agreement between the
complainant and the respondent.
(2) Copies of documents 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, as
well as other parties.
(b) The Consumer Product Safety
Commission, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the agency’s discretion. At the request of
the Commission, copies of all pleadings
in a case must be sent to the
Commission, whether or not it is
participating in the proceeding.
emcdonald on DSK2BSOYB1PROD with RULES_2
§ 1983.109 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 (d) of this section, as
appropriate. A determination that a
violation has occurred may be made
only if the complainant has
demonstrated by a preponderance of the
evidence that protected activity was a
contributing factor in the adverse action
alleged in the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected behavior.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 1983.104(e) nor the
Assistant Secretary’s determination to
proceed with an investigation is subject
to review by the ALJ, and a complaint
may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
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jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the
order will direct the respondent to take
appropriate affirmative action to abate
the violation, including, where
appropriate, reinstatement of the
complainant to that person’s former
position, together with the
compensation (including back pay),
terms, conditions, and privileges of that
employment, and compensatory
damages. At the request of the
complainant, the ALJ shall assess
against the respondent all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint was frivolous or was brought
in bad faith, the judge may award to the
respondent a reasonable attorney’s fee,
not exceeding $1,000.
(e) The decision will be served upon
all parties to the proceeding, the
Assistant Secretary, and the Associate
Solicitor, Division of Fair Labor
Standards. Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
judge’s order will be effective 10
business days after the date of the
decision unless a timely petition for
review has been filed with the ARB.
§ 1983.110 Decision and orders of the
Administrative Review Board.
(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint was frivolous or brought
in bad faith who seeks an award of
attorney’s fees, must file a written
petition for review with the
Administrative Review Board, U.S.
Department of Labor, which has been
delegated the authority to act for the
Secretary and issue final decisions
under this part. The decision of the ALJ
will become the final order of the
Secretary unless, pursuant to this
section, a petition for review is timely
filed with the ARB and the ARB accepts
the petition for review. The petition for
review must specifically identify the
legal conclusions or orders to which
exception is taken. Any exception not
specifically urged ordinarily will be
deemed to have been waived by the
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parties. A petition must be filed within
10 business days of the date of the
decision of the ALJ. 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
ARB. 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.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that a preliminary
order of reinstatement will be effective
while review is conducted by the ARB,
unless the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 10 business days after the
date of the decision of the ALJ unless a
motion for reconsideration has been
filed with the ALJ in the interim. The
ARB’s final decision will be served
upon all parties and the Chief
Administrative Law Judge by mail. The
final decision will also be served on the
Assistant Secretary, Occupational Safety
and Health Administration, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
final order will order the respondent to
take appropriate affirmative action to
abate the violation, including
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reinstatement of the complainant to that
person’s former position, together with
the compensation (including back pay
and interest), terms, conditions, and
privileges of employment, and
compensatory damages. At the request
of the complainant, the ARB will assess
against the respondent all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred.
(e) If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ARB determines that a
complaint was frivolous or was brought
in bad faith, the ARB may award to the
respondent a reasonable attorney’s fee,
not exceeding $1,000.
Subpart C—Miscellaneous Provisions
emcdonald on DSK2BSOYB1PROD with RULES_2
§ 1983.111 Withdrawal of complaints,
objections, and petitions for review;
settlement.
(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint by filing a written
withdrawal with the Assistant
Secretary. The Assistant Secretary then
will determine whether to approve the
withdrawal. The Assistant Secretary
will notify the respondent (or the
respondent’s legal counsel if respondent
is represented by counsel) of the
approval of any withdrawal. If the
complaint is withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section. A
complainant may not withdraw his or
her complaint after the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order.
(b) The Assistant Secretary may
withdraw his or her findings and/or
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1983.106,
provided that no objection yet has been
filed, and substitute new findings and/
or a preliminary order. The date of the
receipt of the substituted findings or
order will begin a new 30-day objection
period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw its
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If the case is
on review with the ARB, a party may
withdraw its petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
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ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the
Assistant Secretary’s findings or order,
and there are no other pending
objections, the Assistant Secretary’s
findings and order will become the final
order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
to review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, and
before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if the Assistant Secretary, the
complainant, and the respondent agree
to a settlement. The Assistant
Secretary’s approval of a settlement
reached by the respondent and the
complainant demonstrates his or her
consent and achieves the consent of all
three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the judge, or by the ARB if the ARB has
accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB, as the case may be.
(e) Any settlement approved by the
Assistant Secretary, the ALJ, or the ARB
will constitute the final order of the
Secretary and may be enforced pursuant
to § 1983.113.
§ 1983.112
Judicial review.
(a) Within 60 days after the issuance
of a final order under §§ 1983.109 and
1983.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order of the ARB is not
subject to judicial review in any
criminal or other civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB to the
appropriate court pursuant to the
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53543
Federal Rules of Appellate Procedure
and local rules of the court.
§ 1983.113
Judicial enforcement.
Whenever any person has failed to
comply with a preliminary order,
including one ordering reinstatement, or
a final order, including one approving a
settlement agreement, issued under the
CPSIA, 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. In
such civil actions, the district court will
have jurisdiction to grant all appropriate
relief, including, but not limited to,
injunctive relief and compensatory
damages, including:
(a) Reinstatement with the same
seniority status that the employee
would have had, but for the discharge
or retaliation;
(b) The amount of back pay, with
interest; and
(c) Compensation for any special
damages sustained as a result of the
discharge or retaliation, including
litigation costs, expert witness fees, and
reasonable attorney’s fees.
§ 1983.114 District court jurisdiction of
retaliation complaints.
(a) If there has been no final decision
of the Secretary within 210 days of the
filing of the complaint, or within 90
days after receiving a written
determination, 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
Assistant Secretary, the ALJ, or the ARB,
depending on 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. A copy of the notice must
be served on the Regional
Administrator, the Assistant Secretary,
Occupational Safety and Health
Administration, and on the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
The complainant shall file and serve a
copy of the district court complaint on
the above as soon as possible after the
district court complaint has been filed
with the court.
§ 1983.115
of rules.
Special circumstances; waiver
In special circumstances not
contemplated by the provisions of these
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rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three days notice to all
parties, waive any rule or issue such
orders that justice or the administration
of CPSIA requires.
[FR Doc. 2010–21122 Filed 8–30–10; 8:45 am]
BILLING CODE 4510–26–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1978
[Docket Number OSHA–2008–0026]
RIN 1218–AC36
Procedures for the Handling of
Retaliation Complaints Under the
Employee Protection Provision of the
Surface Transportation Assistance Act
of 1982
Occupational Safety and Health
Administration, Labor.
ACTION: Interim final rule; request for
comments.
AGENCY:
The Occupational Safety and
Health Administration (OSHA) is
amending the regulations governing
employee protection (or
‘‘whistleblower’’) claims under the
Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C. 31105. The
amendments clarify and improve
procedures for handling STAA
whistleblower complaints and
implement statutory changes enacted
into law on August 3, 2007, as part of
the Implementing Recommendations of
the 9/11 Commission Act of 2007 (9/11
Commission Act), Public Law 110–53,
121 Stat. 266. These changes to the
STAA whistleblower regulations also
make the procedures for handling
retaliation complaints under STAA
more consistent with OSHA’s
procedures for handling retaliation
complaints under Section 211 of the
Energy Reorganization Act of 1974
(ERA), 42 U.S.C. 5851 and other
whistleblower provisions.
DATES: This interim final rule is
effective on August 31, 2010. Comments
on the interim final rule must be
submitted (postmarked, sent or
received) on or before November 1,
2010.
ADDRESSES: You may submit comments
and additional materials by any of the
following methods:
Electronically: You may submit
comments and attachments
electronically at http://www.regulations.
gov, which is the Federal eRulemaking
emcdonald on DSK2BSOYB1PROD with RULES_2
SUMMARY:
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19:27 Aug 30, 2010
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Portal. Follow the instructions online
for making electronic submissions.
Fax: If your submissions, including
attachments, do not exceed 10 pages,
you may fax them to the OSHA Docket
Office at (202) 693–1648.
Mail, hand delivery, express mail,
messenger or courier service: You must
submit your comments and attachments
to the OSHA Docket Office, Docket No.
OSHA–2008–0026, U.S. Department of
Labor, Room N–2625, 200 Constitution
Avenue, NW., Washington, DC 20210.
Deliveries (hand, express mail,
messenger and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m., e.t.
Instructions: All submissions must
include the agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA–2008–0026).
Submissions, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at http://
www.regulations.gov. Therefore, OSHA
cautions you about submitting personal
information such as Social Security
numbers and birth dates.
Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
Nilgun Tolek, Director, Office of the
Whistleblower Protection Program,
Occupational Safety and Health
Administration, U.S. Department of
Labor, Room N–3610, 200 Constitution
Avenue, NW., Washington, DC 20210;
telephone (202) 693–2199. This is not a
toll-free number. The alternative formats
available are large print, electronic file
on computer disk (Word Perfect, ASCII,
Mates with Duxbury Braille System) and
audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
Among other provisions of the 9/11
Commission Act, section 1536 reenacted
the whistleblower provision in STAA,
49 U.S.C. 31105 (previously referred to
as ‘‘Section 405’’), with certain
amendments. The regulatory revisions
described herein reflect these statutory
changes and also seek to clarify and
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improve OSHA’s procedures for
handling STAA whistleblower claims.
To the extent possible within the
bounds of applicable statutory language,
these revised regulations are designed to
be consistent with the procedures
applied to claims under other
whistleblower statutes administered by
OSHA, including the ERA, the Wendell
H. Ford Aviation Investment and
Reform Act for the 21st Century
(AIR21), 49 U.S.C. 42121, and Title VIII
of the Sarbanes-Oxley Act of 2002
(SOX), 18 U.S.C. 1514A. Responsibility
for receiving and investigating
complaints under 49 U.S.C. 31105 has
been delegated to the Assistant
Secretary of Labor for Occupational
Safety and Health (Assistant Secretary)
(Secretary’s Order 5–2007, 72 FR 31160,
June 5, 2007). Hearings on
determinations by the Assistant
Secretary are conducted by the Office of
Administrative Law Judges, and appeals
from decisions by administrative law
judges (ALJs) are decided by the
Administrative Review Board (ARB)
(Secretary’s Order 1–2010 (Jan. 15,
2010), 75 FR 3924–01 (Jan. 25, 2010)).
II. Summary of Statutory Changes to
STAA Whistleblower Provisions
The 9/11 Commission Act amended
49 U.S.C. 31105, and the related
definitions provision at 49 U.S.C. 31101,
by making the changes described below.
Expansion of Protected Activity
Before passage of the 9/11
Commission Act, STAA protected
certain activities related to commercial
motor vehicle safety. The 9/11
Commission Act expanded STAA’s
coverage to commercial motor vehicle
security. In particular, 49 U.S.C.
31105(a)(1)(A) previously made it
unlawful for a person to discharge,
discipline, or discriminate against an
employee regarding pay, terms, or
privileges of employment because the
employee, or another person at the
employee’s request, filed a complaint or
began a proceeding related to a violation
of a commercial motor vehicle safety
regulation, standard or order, or testified
or planned to testify in such a
proceeding. The 9/11 Commission Act
expanded this provision to include
complaints and proceedings related to
violations of commercial motor vehicle
security regulations, standards, and
orders.
Prior to the 2007 amendments,
paragraph (a)(1)(B) of STAA’s
whistleblower provision prohibited a
person from discharging, disciplining,
or discriminating against an employee
regarding pay, terms or privileges of
employment for refusing to operate a
E:\FR\FM\31AUR2.SGM
31AUR2
| File Type | application/pdf |
| File Title | Document |
| Subject | Extracted Pages |
| Author | U.S. Government Printing Office |
| File Modified | 2010-08-30 |
| File Created | 2010-08-30 |