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19 CFR section

Description

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§§ 10.903 and 10.904 ...............................

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Claim for preferential tariff treatment under the U.S.-Peru Trade Promotion
Agreement.

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Alan D. Bersin,
Commissioner, U.S. Customs and Border
Protection.
Approved: October 28, 2011.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2011–28471 Filed 11–2–11; 8:45 am]
BILLING CODE 9111–14–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1980
[Docket Number: OSHA–2011–0126]
RIN 1218–AC53

Procedures for the Handling of
Retaliation Complaints Under Section
806 of the Sarbanes-Oxley Act of 2002,
as Amended
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 (‘‘retaliation’’ or
‘‘whistleblower’’) claims under section
806 of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of
the Sarbanes-Oxley Act of 2002
(‘‘Sarbanes-Oxley’’ or ‘‘Act’’), which was
amended by sections 922 and 929A of
the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010,
enacted on July 21, 2010. Public Law
111–203. These revisions to the
Sarbanes-Oxley whistleblower
regulations clarify and improve the
procedures for handling Sarbanes-Oxley
whistleblower complaints and
implement statutory changes enacted
into law as part of the 2010 statutory
amendments. These changes to the
Sarbanes-Oxley whistleblower
regulations also make the procedures for
handling retaliation complaints under
Sarbanes-Oxley more consistent with
OSHA’s procedures for handling
complaints under the employee
protection provisions of the Surface
Transportation Assistance Act of 1982,

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SUMMARY:

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29 CFR part 1978; the National Transit
Systems Security Act and the Federal
Railroad Safety Act, 29 CFR part 1982;
the Consumer Product Safety
Improvement Act of 2008, 29 CFR part
1983; and the Employee Protection
Provisions of Six Environmental
Statutes and Section 211 of the Energy
Reorganization Act of 1974, as
amended, 29 CFR part 24.
DATES: This interim final rule is
effective on November 3, 2011.
Comments and additional materials
must be submitted (post-marked, sent or
received) by January 3, 2012.
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–2011–0126, 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–2011–0126).
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.

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All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
Sandra Dillon, Acting 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. This Federal Register
publication is available in alternative
formats. The alternative formats are
large print, electronic file on computer
disk (Word Perfect, ASCII, Mates with
Duxbury Braille System) and audiotape.
SUPPLEMENTARY INFORMATION:

I. Background
The Dodd-Frank Wall Street Reform
and Consumer Protection Act of 2010,
Public Law 111–203, (Dodd-Frank)
amended the Sarbanes-Oxley
whistleblower provision, 18 U.S.C.
1514A. The regulatory revisions
described herein reflect these statutory
amendments and also seek to clarify and
improve OSHA’s procedures for
handling Sarbanes-Oxley whistleblower
claims. To the extent possible within
the bounds of applicable statutory
language, these revised regulations are
designed to be consistent with the
procedures applied to claims under
other whistleblower statutes
administered by OSHA, including the
Surface Transportation Assistance Act
of 1982 (STAA), 29 CFR part 1978; the
National Transit Systems Security Act
(NTSSA) and the Federal Railroad
Safety Act (FRSA), 29 CFR part 1982;
the Consumer Product Safety
Improvement Act of 2008 (CPSIA), 29
CFR part 1983; and the Employee
Protection Provisions of Six
Environmental Statutes and Section 211
of the Energy Reorganization Act of
1974, as amended, 29 CFR part 24.
Responsibility for receiving and
investigating complaints under
Sarbanes-Oxley has been delegated to
the Assistant Secretary of Labor for
Occupational Safety and Health
(Secretary of Labor’s Order No. 4–2010
(Sept. 2, 2010), 75 FR 55355 (Sept. 10,
2010)). Hearings on determinations by
the Assistant Secretary are conducted by

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the Office of Administrative Law Judges,
and appeals from decisions by
administrative law judges (ALJs) are
decided by the Administrative Review
Board (ARB) (Secretary of Labor’s Order
No. 1–2010 (Jan. 15, 2010), 75 FR 3924
(Jan. 25, 2010)).
II. Summary of Statutory Changes to
the Sarbanes-Oxley Whistleblower
Provision
Dodd-Frank, enacted on July 21, 2010,
amended the Sarbanes-Oxley
whistleblower provision to make several
substantive changes. First, section
922(b) of Dodd-Frank added protection
for employees from retaliation by
nationally recognized statistical rating
organizations (as defined in section 3(a)
of the Securities Exchange Act of 1934
(15 U.S.C. 78c)) or their officers,
employees, contractors, subcontractors,
and agents.1 Second, section 922(c) of
Dodd-Frank extended the statutory
filing period for retaliation complaints
under Sarbanes-Oxley from 90 to 180
days after the date on which the
violation occurs or after the date on
which the employee became aware of
the violation. Section 922(c) of DoddFrank also provided parties with a right
to a jury trial in district court actions
brought under Sarbanes-Oxley’s
‘‘kickout’’ provision, 18 U.S.C.
1514A(b)(1)(B), which provides that, if
the Secretary has not issued a final
decision within 180 days of the filing of
the complaint and there is no showing
that there has been delay due to the bad
faith of the complainant, the
complainant may bring an action at law
or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such action without regard to the
amount in controversy. Third, section
922(c) amended Sarbanes-Oxley to state
that the rights and remedies provided
for in 18 U.S.C. 1514A may not be
waived by any agreement, policy form,

or condition of employment, including
by a predispute arbitration agreement,
and to provide that no predispute
arbitration agreement shall be valid or
enforceable, if the agreement requires
arbitration of a dispute arising under
this section.
In addition, section 929A of DoddFrank clarified that companies covered
by the Sarbanes-Oxley whistleblower
provision include any company with a
class of securities registered under
section 12 of the Securities Exchange
Act of 1934 (15 U.S.C. 78l), or that is
required to file reports under section
15(d) of the Securities Exchange Act of
1934 (15 U.S.C. 78o(d)) including any
subsidiary or affiliate whose financial
information is included in the
consolidated financial statements of
such company. As explained in Johnson
v. Siemens Technologies, Inc., ARB No.
08–032, 2011 WL 1247202, at *11 (Mar.
31, 2011), section 929A merely clarified
that subsidiaries and affiliates are
covered under the Sarbanes-Oxley
whistleblower provision. Section 929A
applies to all cases currently pending
before the Secretary.
Dodd-Frank left the remaining
requirements of the Sarbanes-Oxley
whistleblower provision unchanged.
Sarbanes-Oxley continues to provide
that proceedings under the Act will be
governed by the rules and procedures
and burdens of proof of the Wendell H.
Ford Aviation Investment and Reform
Act for the 21st Century (‘‘AIR21’’), 49
U.S.C. 42121(b). Sarbanes-Oxley
continues to authorize an award to a
prevailing employee of make-whole
relief, including reinstatement with the
same seniority status that the employee
would have had but for the retaliation,
back pay with interest, and
compensation for any special damages
sustained, including litigation costs,
expert witness fees and reasonable
attorney’s fees. See 18 U.S.C.
1514A(c)(2).

1 Section 3(a) of the Securities Exchange Act of
1934 defines nationally recognized statistical rating
organization as a credit rating agency that—
(1) issues credit ratings certified by qualified
institutional buyers, in accordance with 15 U.S.C.
78o–7(a)(1)(B)(ix), with respect to—
(i) financial institutions, brokers, or dealers;
(ii) insurance companies;
(iii) corporate issuers;
(iv) issuers of asset-backed securities (as that term
is defined in section 1101(c) of part 229 of title 17,
Code of Federal Regulations, as in effect on
September 29, 2006);
(v) issuers of government securities, municipal
securities, or securities issued by a foreign
government; or
(vi) a combination of one or more categories of
obligors described in any of clauses (i) through (v);
and
(2) is registered under 15 U.S.C. 78o–7.
15 U.S.C. 78c(a)(62).

III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
are being revised to reflect the 2010
Dodd-Frank statutory amendments, to
improve the procedures for handling
Sarbanes-Oxley whistleblower cases,
and to make the Sarbanes-Oxley
whistleblower regulations more
consistent with the regulations that
OSHA has promulgated for the
administration of other whistleblower
programs to the extent possible within
the bounds of the applicable statutory
language.
These regulatory revisions make
several non-substantive changes in
terminology. First, cases under the

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whistleblower provision of SarbanesOxley will now be referred to as actions
alleging ‘‘retaliation’’ rather than
‘‘discrimination.’’ This change is not
intended to have substantive effect. It
simply reflects the fact that claims
brought under the whistleblower
provisions are prototypical retaliation
claims. A retaliation claim is a specific
type of discrimination claim that
focuses on the actions taken as a result
of an employee’s protected activity
rather than as a result of an employee’s
characteristics (e.g., race, gender, or
religion).
Second, these rules previously
referred to persons named in SarbanesOxley whistleblower complaints as
‘‘named persons,’’ but in the revised
regulations they will be referred to as
‘‘respondents.’’ Third, rather than
referring to an employer’s ‘‘unfavorable
personnel action,’’ these revisions use
the term ‘‘adverse action.’’ Again, these
changes are not intended to have any
substantive impact on the handling of
Sarbanes-Oxley whistleblower cases.
The revisions simply reflect a
preference for more conventional
terminology. These updated terms are
already used in OSHA’s procedural
rules for handling whistleblower
complaints under several other statutes,
including STAA, 29 CFR part 1978;
NTSSA and FRSA, 29 CFR part 1982;
CPSIA, 29 CFR part 1983; and the
Employee Protection Provisions of Six
Environmental Statutes and Section 211
of the Energy Reorganization Act of
1974, as amended, 29 CFR part 24. The
minor changes here create consistency
with these other programs and reduce
possible confusion.
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1980.100

Purpose and Scope

This section describes the purpose of
the regulations implementing SarbanesOxley and provides an overview of the
procedures covered by these
regulations. This section has been
revised to reflect the 2010 statutory
amendments to Sarbanes-Oxley.
Section 1980.101

Definitions

This section includes general
definitions applicable to SarbanesOxley’s whistleblower provision. The
definition of the term ‘‘Act’’ has been
revised to incorporate the 2010 DoddFrank statutory amendments within that
definition. Also, consistent with the
recently promulgated interim final rules
under STAA, 29 CFR part 1978; NTSSA
and FRSA, 29 CFR part 1982; and
CPSIA, 29 CFR part 1983, a new
definition of ‘‘business days’’ is being

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added at paragraph 1980.101(c) of these
rules to clarify that the term means days
other than Saturdays, Sundays and
Federal holidays.
The 2010 statutory amendments to
Sarbanes-Oxley define ‘‘nationally
recognized statistical rating
organization’’ by reference to the
definition in the Securities Exchange
Act of 1934, codified at 15 U.S.C.
78c(a)(62), and that definition has been
included here. Similarly, the definition
of ‘‘company’’ has been revised to
reflect that ‘‘company’’ under the
Sarbanes-Oxley whistleblower provision
includes any subsidiary or affiliate
whose financial information is included
in the consolidated financial statements
of a company. Thus under these
regulations ‘‘company’’ means any
company with a class of securities
registered under section 12 of the
Securities Exchange Act of 1934 (15
U.S.C. 78l) or any company required to
file reports under section 15(d) of the
Securities Exchange Act of 1934 (15
U.S.C. 78o(d)) including any subsidiary
or affiliate whose financial information
is included in the consolidated financial
statements of such company.
These regulatory revisions also
replace the term ‘‘company
representative’’ with the term ‘‘covered
person,’’ which is defined in
subparagraph 1980.101(f) as ‘‘any
company, including any subsidiary or
affiliate whose financial information is
included in the consolidated financial
statements of such company, or any
nationally recognized statistical rating
organization, or any officer, employee,
contractor, subcontractor, or agent of
such company or nationally recognized
statistical rating organization.’’ In
addition, as noted above, these rules
have replaced the definition of ‘‘named
person’’ with a definition for
‘‘respondent’’ at paragraph 1980.101(k),
and define the term ‘‘respondent’’ as
‘‘the person named in the complaint
who is alleged to have violated the Act.’’
The term ‘‘employee’’ in 1980.101(g) has
also been revised consistent with these
changes, and the term ‘‘person’’ in
1980.101(j) has been revised to
explicitly include ‘‘companies’’ in the
definition of ‘‘person.’’ The order of the
terms in this section has been changed
as necessary to permit the inclusion and
substitution of the terms described
above. These changes in terminology
were needed to reflect the addition of
nationally recognized statistical rating
organizations and their officers,
employees, contractors, subcontractors,
and agents to the list of potential
respondents in whistleblower cases
under Sarbanes-Oxley. These changes in
terminology also continue to reflect that

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Sarbanes-Oxley’s statutory provisions
identify individuals, as well as the
employer, as potentially liable for
retaliation. OSHA continues to
anticipate, however, that in most cases
the covered person and the respondent
likely will be the complainant’s
employer. The definitions in this
section also continue to reflect OSHA’s
longstanding position that the statute
protects both employees of publicly
traded companies and employees of
contractors, subcontractors, and agents
of publicly traded companies. See
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, Final Rule, 69 FR 52104,
52106 (Aug. 24, 2004); Brief for the
Secretary of Labor as Amicus Curiae in
Support of Plaintiff-Appellees, Lawson
v. FMR, LLC, No. 10–2240 (1st Cir.
2011).
Section 1980.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under Sarbanes-Oxley
and the conduct that is prohibited in
response to any protected activities. The
term ‘‘covered person’’ has been
substituted for ‘‘company or company
representative’’ throughout this section,
and other minor changes have been
made to make this section consistent
with OSHA’s procedural rules
implementing other whistleblower
provisions. It should be noted that it is
the Department’s longstanding position
that complaints to an individual
member of Congress under this section
are protected. The individual member
need not be conducting an investigation
or on a Committee conducting an
investigation. The critical focus is on
whether the employee reported conduct
that he or she reasonably believed
constituted a violation of one of the
enumerated laws or regulations.
Section 1980.103 Filing of Retaliation
Complaints
This section explains the requirement
for filing a retaliation complaint under
Sarbanes-Oxley. The terminology used
in this section has been revised to
reflect the updated terminology
described above. The 2010 statutory
amendments changed the statute of
limitations for complaints under the Act
from 90 to 180 days. Now, to be timely,
a complaint must be filed within
180 days of when the alleged violation
occurs, or after the date on which the
employee became aware of the
violation. This section of the regulations
has been updated to reflect that

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statutory change. Under Delaware State
College v. Ricks, 449 U.S. 250, 258
(1980), the time of the alleged violation
is considered to be when the retaliatory
decision has been both made and
communicated to the complainant.
Additionally, section 1980.103(b) has
been amended to change the
requirement that whistleblower
complaints to OSHA under SarbanesOxley ‘‘must be in writing and should
include a full statement of the acts and
omissions, with pertinent dates, which
are believed to constitute the
violations.’’ Consistent with OSHA’s
procedural rules under other
whistleblower statutes, complaints filed
under Sarbanes-Oxley need not be in
any particular form. They may be either
oral or in writing. When a complaint is
made orally, OSHA will reduce the
complaint to writing. If a complainant is
not able to file the complaint in English,
the complaint may be filed in any
language. With the consent of the
employee, complaints may be filed by
any person on the employee’s behalf.
These changes are consistent with
decisions of the ARB, which have
permitted oral complaints under the
environmental statutes. See, e.g.,
Roberts v. Rivas Environmental
Consultants, Inc., 1996–CER–1, 1997
WL 578330, at *3 n.6 (ARB Sept. 17,
1997) (complainant’s oral statement to
an OSHA investigator, and the
subsequent preparation of an internal
memorandum by that investigator
summarizing the oral complaint,
satisfies the ‘‘in writing’’ requirement of
CERCLA, 42 U.S.C. 9610(b), and the
Department’s accompanying regulations
in 29 CFR part 24); Dartey v. Zack Co.
of Chicago, No. 1982–ERA–2, 1983 WL
189787, at *3 n.1 (Sec’y of Labor Apr.
25, 1983) (adopting administrative law
judge’s findings that complainant’s
filing of a complaint to the wrong DOL
office did not render the filing invalid
and that the agency’s memorandum of
the complaint satisfied the ‘‘in writing’’
requirement of the Energy
Reorganization Act (‘‘ERA’’) and the
Department’s accompanying regulations
in 29 CFR part 24). Moreover, these
changes are consistent with OSHA’s
longstanding practice of accepting oral
complaints filed under Section 11(c) of
the Occupational Safety and Health Act
of 1970, 29 U.S.C. 660(c); Section 211 of
the Asbestos Hazard Emergency
Response Act of 1986, 15 U.S.C. 2651;
Section 7 of the International Safe
Container Act of 1977, 46 U.S.C. 80507;
and STAA, 49 U.S.C. 31105. This
change also accords with the Supreme
Court’s decision in Kasten v. SaintGobain Performance Plastics Corp., in
which the Court held that the anti-

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retaliation provision of the Fair Labor
Standards Act, which prohibits
employers from discharging or
otherwise discriminating against an
employee because such employee has
‘‘filed any complaint,’’ protects
employees’ oral complaints of violations
of the Fair Labor Standards Act. 563
U.S. __, 131 S.Ct. 1325 (2011).
OSHA believes that the changes in
this section complement the ARB’s
decision in Sylvester v. Parexel
International, LLC. Noting that OSHA
does not require complaints under
Sarbanes-Oxley to be in any form and
that under 29 CFR 1980.104(b) OSHA
has a duty, if appropriate, to interview
the complainant to supplement the
complaint, the ARB held that the
Federal court pleading standards
established in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct.
1937 (2009) do not apply to SarbanesOxley whistleblower complaints filed
with OSHA. Sylvester v. Parexel Int’l,
Inc., ARB Case No. 07–123, 2011 WL
2165854, at *9–10 (ARB May 26, 2011).
Section 1980.104 Investigation
This section describes the procedures
that apply to the investigation of
Sarbanes-Oxley complaints. The
terminology used in this section has
been updated and the content of each
paragraph has been reorganized to be
consistent with OSHA’s investigation
procedures under other whistleblower
statutes, to the extent such parallel
procedures are consistent with the Act.
Paragraph (a) of this section outlines
the procedures for notifying the parties
and the Securities and Exchange
Commission of the complaint and
notifying respondents of their rights
under these regulations. Paragraph (a)
also provides that the respondent will
receive a copy of the complaint,
redacted if necessary in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. Former paragraphs (b) through (d)
described the statutory burdens of proof
applicable to Sarbanes-Oxley
whistleblower complaints. The
discussion of these burdens has been
consolidated without substantive
change in a single paragraph
1980.104(e), consistent with the
approach taken in OSHA’s procedural
rules under other whistleblower
statutes. Paragraph (b) now describes
the procedures for the respondent to
submit its response to the complaint,
which were formerly contained in
1980.104(c). Paragraph (c) now
addresses disclosure to the complainant
of respondent’s submissions to the
agency that are responsive to the

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complaint. The revised paragraph (c)
newly specifies that throughout the
investigation the agency will provide to
the complainant (or the complainant’s
legal counsel if the complainant is
represented by counsel) a copy of all of
respondent’s submissions to the agency
that are responsive to the complainant’s
whistleblower complaint, and the
complainant will have an opportunity to
respond to those submissions. Before
providing such materials to the
complainant, the agency will redact
them in accordance with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
agency expects that sharing information
with complainants in accordance with
this new provision will enhance
OSHA’s ability to conduct full and fair
investigations and permit the Assistant
Secretary to more thoroughly assess
defenses raised by respondents.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations. Paragraph (f),
formerly 1980.104(e), 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.
This paragraph has been amended to
provide that the complainant will be
sent a copy of the materials that OSHA
must send to the respondent before
OSHA issues a preliminary order of
reinstatement should the agency have
reasonable cause to believe that such an
order is appropriate. Before providing
such materials to the complainant, the
agency will redact them, if necessary, in
accordance with the Privacy Act of
1974, 5 U.S.C. 552a, and other
applicable confidentiality laws.
As noted above, former paragraphs (b)
through (d), which describe the
statutory burdens of proof applicable to
Sarbanes-Oxley complaints, have been
consolidated in paragraph (e). The
Sarbanes-Oxley whistleblower provision
mandates that an action under the Act
is governed by the burdens of proof set
forth in AIR21, 49 U.S.C. 42121(b). The
statute requires that a complainant make
an initial prima facie showing that
protected activity was ‘‘a contributing
factor’’ in the adverse action alleged in
the complaint, i.e., that the protected
activity, alone or in combination with
other factors, affected in some way the
outcome of the employer’s decision. The
complainant will be considered to have
met the required burden if the
complaint on its face, supplemented as
appropriate through interviews of the
complainant, alleges the existence of
facts and either direct or circumstantial

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evidence to meet the required showing.
Complainant’s burden may be satisfied,
for example, if he or she shows that the
adverse action took place shortly after
protected activity, giving rise to the
inference that it was a contributing
factor in the adverse action.
If the complainant does not make the
prima facie showing, the investigation
must be discontinued and the complaint
dismissed. See Trimmer v. U.S. Dep’t of
Labor, 174 F.3d 1098, 1101 (10th Cir.
1999) (noting that the burden-shifting
framework of the ERA, which is the
same as that under Sarbanes-Oxley,
serves a ‘‘gatekeeping function’’ that
‘‘stem[s] frivolous complaints’’). Even in
cases where the complainant
successfully makes a prima facie
showing, the investigation must be
discontinued if the employer
‘‘demonstrates, by clear and convincing
evidence,’’ that it would have taken the
same adverse action in the absence of
the protected activity. 49 U.S.C.
42121(b)(2)(B)(ii). Thus, OSHA must
dismiss a complaint under SarbanesOxley 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.

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Holdings, Inc., ARB No. 04–149, 2006
WL 3246904, at *13 (ARB May 31, 2006)
(citing Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004))
(discussing contributing factor test
under the Sarbanes-Oxley
whistleblower provision), aff’d sub
nom. Klopfenstein v. Admin. Review
Bd., U.S. Dep’t of Labor, 402 F. App’x
936, 2010 WL 4746668 (5th Cir. 2010).
Sarbanes-Oxley’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.
Sarbanes-Oxley 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
49 U.S.C. 42121(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 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 1980.105 Issuance of Findings
and Preliminary Orders
As provided in the previous
procedures for handling retaliation
complaints under Sarbanes-Oxley, 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, in
accordance with the statute, 18 U.S.C.
1514A(c), the Assistant Secretary will
order ‘‘all relief necessary to make the
employee whole,’’ including
preliminary reinstatement; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation

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costs, expert witness fees, and
reasonable attorney’s fees.
In ordering interest on back pay under
Sarbanes-Oxley, the Secretary has
determined that, instead of computing
the interest due by compounding
quarterly the Internal Revenue Service
(‘‘IRS’’) interest rate for the
underpayment of taxes, which under
26 U.S.C. 6621 is generally the Federal
short-term rate plus three percentage
points, the Secretary will instead
compound such interest daily. This is a
change from the way interest has been
calculated. See Doyle v. Hydro Nuclear
Services, ARB Nos. 99–041, 99–042, and
99–012, 2000 WL 694384, at *15–16
(ARB May 17, 2000). The Secretary
believes that daily compounding of
interest better achieves the make-whole
purpose of a back pay award. Daily
compounding of interest has become the
norm in private lending and recently
was found to be the most appropriate
method of calculating interest on back
pay by the National Labor Relations
Board. See Jackson Hospital Corp. v.
United Steel, Paper & Forestry, Rubber,
Mfg., Energy, Allied Indus. & Serv.
Workers Int’l Union, AFL–CIO–CLC, 356
NLRB No. 8, 2010 WL 4318371, at
*3–4 (Oct. 22, 2010). Additionally,
interest on tax underpayments under
the Internal Revenue Code, 26 U.S.C.
6621, is compounded daily pursuant to
26 U.S.C. 6622(a).
As in the previous procedures for
handling retaliation complaints under
Sarbanes-Oxley, 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 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.
Finally, the statement that
reinstatement would not be appropriate
where the respondent establishes that
the complainant is a security risk has
been removed from 1980.105(a)(1).
OSHA believes that the determination of
whether reinstatement is inappropriate
in a given case is best made on the basis

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of the facts of each case and the relevant
case law, and thus it is not necessary in
these procedural rules to define the
circumstances in which reinstatement is
not a proper remedy. This amendment
also makes these procedural regulations
consistent with the recent interim final
rules under STAA, NTSSA, FRSA, and
CPSIA, which do not contain this
statement.
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he
received prior to his termination, but
not actually return to work. Such
‘‘economic reinstatement’’ is akin to an
order of front pay and is frequently
employed in cases arising under Section
105(c) of the Federal Mine Safety and
Health Act of 1977. See, e.g., Sec’y of
Labor on behalf of York v. BR&D
Enters., Inc., 23 FMSHRC 697, 2001 WL
1806020, at *1 (June 26, 2001). Front
pay has been recognized as a possible
remedy in cases under Sarbanes-Oxley
and other whistleblower statutes
enforced by OSHA in circumstances
where reinstatement would not be
appropriate. Hagman v. Washington
Mutual Bank, Inc., 2005–SOX–73, 2006
WL 6105301, *32 (Dec. 19, 2006) (noting
that while reinstatement is the
‘‘preferred and presumptive remedy’’
under Sarbanes-Oxley, ‘‘[f]ront pay may
be awarded as a substitute when
reinstatement is inappropriate due to:
(1) An employee’s medical condition
that is causally related to her employer’s
retaliatory action * * *; (2) manifest
hostility between the parties * * *; (3)
the fact that claimant’s former position
no longer exists * * *; or (4) the fact
that employer is no longer in business
at the time of the decision’’); see, e.g.,
Hobby v. Georgia Power Co., ARB No.
98–166, ALJ No. 1990–ERA–30 (ARB
Feb. 9, 2001), aff’d sub nom. Hobby v.
U.S. Dept. of Labor, No. 01–10916 (11th
Cir. Sept. 30, 2002) (unpublished)
(noting circumstances where front pay
may be available in lieu of reinstatement
but ordering reinstatement); Brown v.
Lockheed Martin Corp., 2008–SOX–49,
2010 WL 2054426, at *55–56 (Jan. 15,
2010) (same). Congress intended that
employees be preliminarily reinstated to
their positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of SarbanesOxley. 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

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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.

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Subpart B—Litigation
Section 1980.106 Objections to the
Findings and the Preliminary Order and
Request for a Hearing
As under the prior procedures for
whistleblower complaints under
Sarbanes-Oxley, 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 email
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., ARB
No. 04–101, 2005 WL 2865915, at *7
(ARB Oct. 31, 2005). Paragraph (b) has
been revised to note that a respondent’s
motion to stay OSHA’s preliminary
order of reinstatement will be granted
only based on exceptional
circumstances. This revision clarifies
that a stay is only available in
‘‘exceptional circumstances,’’ because
the Secretary believes that a stay of the
Assistant Secretary’s preliminary order
of reinstatement under Sarbanes-Oxley
would be appropriate only where the
respondent can establish the necessary
criteria for equitable injunctive relief,
i.e., irreparable injury, likelihood of

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success on the merits, and a balancing
of possible harms to the parties and the
public favors a stay.
Section 1980.107 Hearings
As under the prior procedures for
whistleblower complaints under
Sarbanes-Oxley, this section adopts the
rules of practice and procedure for
administrative hearings before the
Office of Administrative Law Judges at
29 CFR part 18 subpart A. It specifically
allows hearings to be consolidated if
both the complainant and respondent
object to the findings and/or order of the
Assistant Secretary. This section
continues to provide that the hearing is
to commence expeditiously, except
upon a showing of good cause or unless
otherwise agreed to by the parties.
Hearings will be conducted de novo, on
the record. Administrative law judges
continue to have broad discretion to
limit discovery where necessary to
expedite the hearing. As under the prior
procedures, 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. Minor revisions have been
made throughout this section to update
the terminology used.
Section 1980.108 Role of Federal
Agencies
As noted in this section,
1980.108(a)(1) previously, the Assistant
Secretary, at his or her discretion, may
participate as a party or amicus curiae
at any time in the administrative
proceedings under Sarbanes-Oxley. For
example, the Assistant Secretary may
exercise his or her discretion to
prosecute the case in the administrative
proceeding before an ALJ; petition for
review of a decision of an ALJ,
including a decision based on a
settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or
participate as amicus curiae before the
ALJ or in the ARB proceeding. Although
OSHA anticipates that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, large numbers of employees,
alleged violations that appear egregious,
or where the interests of justice might
require participation by the Assistant
Secretary.
Consistent with OSHA’s procedural
rules under other whistleblower
statutes, paragraph (a)(2) has been

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68089

amended to require the parties to send
all documents to each other, in addition
to the Assistant Secretary.
Paragraph (b) has been revised to state
that ‘‘The Securities and Exchange
Commission, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the Commission’s discretion.’’ This
revision makes this provision consistent
with the analogous provisions in the
Secretary’s procedural rules under other
whistleblower statutes. However, the
revision is not intended to materially
change the circumstances in which the
Securities and Exchange Commission
may participate in proceedings under
Sarbanes-Oxley. The Securities and
Exchange Commission may participate
as amicus curiae at any time in the
proceedings.
Section 1980.109 Decision and Orders
of the Administrative Law Judge
Revisions have been made to this
section to make it consistent with
OSHA’s procedural rules for handling
complaints under other whistleblower
statutes. This section sets forth the
requirements for the content of the
decision and order of the ALJ, and
includes the standard for finding a
violation under Sarbanes-Oxley. Former
paragraph (a) has been divided into
three paragraphs—(a), (b) and (c).
Paragraph (a) now states that 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. Paragraph (b) now
explains that if the complainant has
satisfied this burden, relief may not be
ordered if the respondent demonstrates
by clear and convincing evidence that it
would have taken the same adverse
action in the absence of any protected
activity. A full discussion of the
burdens of proof used by the
Department of Labor to resolve
whistleblower cases under this part is
presented above in the discussion of
section 1980.104. Paragraph (c) now
provides that the Assistant Secretary’s
determination to dismiss the complaint
without an investigation or without a
complete investigation pursuant to
section 1980.104 is not subject to
review. Thus, paragraph (c) of section
1980.109 clarifies that the Assistant
Secretary’s determinations on whether
to proceed with an investigation under
Sarbanes-Oxley and whether to make
particular investigative findings are
discretionary decisions not subject to
review by the ALJ. The ALJ hears cases
de novo and, therefore, as a general

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matter, may not remand cases to the
Assistant Secretary to conduct an
investigation or make further factual
findings. Paragraph (c) now also
clarifies that the ALJ can dispose of a
matter without a hearing if the facts and
circumstances warrant. The provisions
formerly contained in paragraph (b)
have been moved to new paragraphs
(d)(1) and (2). Paragraph (d)(1)
additionally provides that interest on
back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. The provisions
formerly contained in paragraph (c)
have been moved to new paragraph (e),
which also requires that the ALJ’s
decision be served on the Assistant
Secretary and the Associate Solicitor of
the Division of Fair Labor Standards.
Section 1980.110 Decision of the
Administrative Review Board
As in section 1980.110(a) previously,
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. Subsection (b) has been
revised to clarify that 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 email 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 may
be deemed waived. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered
by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. When the ARB accepts a petition
for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard.
This section also provides that based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement
under Sarbanes-Oxley, which otherwise
would be effective, while review is
conducted by the ARB. Subsection (b)

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has been amended to clarify that a stay
is only available in ‘‘exceptional
circumstances,’’ because the Secretary
believes that a stay of an ALJ’s
preliminary order of reinstatement
under Sarbanes-Oxley would be
appropriate only where the respondent
can establish the necessary criteria for
equitable injunctive relief, i.e.,
irreparable injury, likelihood of success
on the merits, and a balancing of
possible harms to the parties and the
public favors a stay.
Finally, paragraph (d) has been
revised to provide that interest on back
pay ordered under this section will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily.
Subpart C—Miscellaneous Provisions
Section 1980.111 Withdrawal of
Complaints, Objections, and Findings;
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.
Paragraph (a) has been revised to
allow the complainant to notify the
Assistant Secretary of his withdrawal
orally or in writing. Minor revisions also
have been made to this section to make
it consistent with the procedural rules
under other whistleblower statutes.
These minor revisions do not reflect
substantive changes in the requirements
for withdrawals of complaints,
objections or petitions for review, or
substantive changes in the requirements
for submission and Departmental
approval of settlement agreements.
Rather, these amendments simply
incorporate the procedures that the
Department has been using under
Sarbanes-Oxley. Paragraph (a) now
notes that complainant may not
withdraw a complaint after filing
objections to an ALJ’s order. Paragraph
(d)(1) now notes that 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.
Section 1980.112

Judicial Review

This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought

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that the ARB submit the record of
proceedings to the appropriate court
pursuant to the rules of such court. The
section has been renumbered for clarity
and consistency with OSHA’s other
whistleblower protection regulations.
Paragraph (c) has been revised to clarify
that ‘‘rules of the court’’ refers to the
Federal Rules of Appellate Procedure
and local rules of the relevant Federal
court of appeals.
Section 1980.113 Judicial Enforcement
This section describes the Secretary’s
power under Sarbanes-Oxley to obtain
judicial enforcement of orders and the
terms of a settlement agreement. It has
been amended for consistency with
OSHA’s other whistleblower programs
and clarifies that Federal district courts
have authority to grant all appropriate
relief in an action to enforce a
preliminary order of reinstatement or a
final order of the Secretary, including a
final order approving a settlement
agreement.
While some courts have declined to
enforce preliminary orders of
reinstatement under Sarbanes-Oxley,
the Secretary’s consistent position has
been that such orders are enforceable in
Federal district court. See Solis v. Tenn.
Commerce Bancorp, Inc., No. 10–5602
(6th Cir. 2010) (order granting stay of
preliminary injunction); Bechtel v.
Competitive Technologies, Inc., 448
F.3d 469 (2d Cir. 2006); Welch v.
Cardinal Bankshares Corp., 454 F.
Supp. 2d 552 (W.D. Va. 2006) (decision
vacated, appeal dismissed, No. 06–2295
(4th Cir. Feb. 20, 2008)).
By incorporating the procedures of
AIR21, Sarbanes-Oxley authorizes
district courts to enforce orders,
including preliminary orders of
reinstatement, issued by the Secretary
under the Act. See 18 U.S.C.
1514A(b)(2)(A) (adopting the rules and
procedures set forth in AIR21, 49 U.S.C.
42121(b)). The Secretary consistently
has interpreted Sarbanes-Oxley to
permit her to obtain civil enforcement of
preliminary orders of reinstatement. See
Brief for the Intervenor/PlaintiffAppellee Secretary of Labor, Solis v.
Tenn. Commerce Bancorp, Inc., No. 10–
5602 (6th Cir. 2010); Brief for the
Intervenor/Plaintiff-Appellant United
States of America, Welch v. Cardinal
Bankshares Corp., No. 06–2295 (4th Cir.
Feb. 20, 2008); Brief for the Intervenor/
Plaintiff-Appellee Secretary of Labor,
Bechtel v. Competitive Technologies,
Inc., 448 F.3d 469 (2d Cir. 2006) (No.
05–2402).
Under 49 U.S.C. 42121(b), which
provides the procedures applicable to
investigations of whistleblower
complaints under Sarbanes-Oxley, the

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Federal Register / Vol. 76, No. 213 / Thursday, November 3, 2011 / Rules and Regulations
Secretary must investigate complaints
under the Act and determine whether
there is reasonable cause to believe that
a violation has occurred. ‘‘[I]f the
Secretary of Labor concludes that there
is a reasonable cause to believe that a
violation * * * has occurred, the
Secretary shall accompany the
Secretary’s findings with a preliminary
order providing the relief prescribed by
paragraph (3)(B),’’ which includes
reinstatement of the complainant to his
or her former position. 49 U.S.C.
42121(b)(2)(A) and (b)(3)(B)(ii). The
respondent may file objections to the
Secretary’s preliminary order and
request a hearing. However, the filing of
such objections ‘‘shall not operate to
stay any reinstatement remedy
contained in the preliminary order.’’
49 U.S.C. 42121(b)(2)(A).
Paragraph (5) of 49 U.S.C. 42121(b)
provides for judicial enforcement of the
Secretary’s orders, including
preliminary orders of reinstatement.
That paragraph states ‘‘[w]henever any
person has failed to comply with an
order issued under paragraph (3), the
Secretary of Labor may file a civil action
in the United States district court for the
district in which the violation was
found to occur to enforce such order. In
actions brought under this paragraph,
the district courts shall have jurisdiction
to grant all appropriate relief including,
but not limited to, injunctive relief and
compensatory damages.’’ 49 U.S.C.
42121(b)(5). Preliminary orders that
contain the relief of reinstatement
prescribed by paragraph (3)(B) are
judicially enforceable orders, issued
under paragraph (3). Brief for the
Intervenor/Plaintiff-Appellee Secretary
of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 at 23–25
(6th Cir. 2010).
This analysis is not altered by the fact
that paragraph (3) bears the heading
‘‘Final Order.’’ See United States v.
Buculei, 262 F.3d 322, 331 (4th Cir.
2001) (a statute’s title cannot limit the
plain meaning of its text), cert. denied,
535 U.S. 962 (2002). Focusing on the
title to subsection (b)(3) instead of
reading section 42121(b) as a coherent
whole negates the congressional
directives that preliminary
reinstatement must be ordered upon a
finding of reasonable cause and that
such orders not be stayed pending
appeal.
Sections of a statute should not be
read in isolation, but rather in
conjunction with the provisions of the
entire Act, considering both the object
and policy of the Act. See, e.g., Brown
& Williamson Tobacco Corp. v. FDA,
153 F.3d 155, 162 (4th Cir. 1998), aff’d,
529 U.S. 120 (2000). 49 U.S.C.

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42121(b)(2)(A)’s clear statement that
objections shall not stay any
preliminary order of reinstatement
demonstrates Congress’s intent that the
Secretary’s preliminary orders of
reinstatement be immediately effective.
Reading 49 U.S.C. 42121(b)(5) to allow
enforcement of such orders is the only
way to effectuate this intent.
The Secretary’s interpretation is
buttressed by the legislative history of
Sarbanes-Oxley and AIR21. Before
Congress enacted Sarbanes-Oxley, the
Department of Labor had interpreted
this AIR21 provision to permit judicial
enforcement of preliminary
reinstatement orders. Accordingly,
Congress is presumed to have been
aware of the Department’s interpretation
of 49 U.S.C. 42121(b)(5) and to have
adopted that interpretation when it
incorporated that provision by
reference. See Lorillard v. Pons, 434
U.S. 575, 580–81 (1978) (‘‘[W]here
* * * Congress adopts a new law
incorporating sections of a prior law,
Congress normally can be presumed to
have had knowledge of the
interpretation given to the incorporated
law, at least insofar as it affects the new
statute’’). The Secretary’s interpretation
is further supported by the legislative
history of AIR21, which makes clear
that Congress regarded preliminary
reinstatement as crucial to the
protections provided in the statute. Brief
for the Intervenor/Plaintiff-Appellee
Secretary of Labor, Solis v. Tenn.
Commerce Bancorp, Inc., No. 10–5602,
at 41–44 (6th Cir. 2010) (reviewing
legislative history of AIR21).
Interpreting 49 U.S.C. 42121(b)(5) to
permit judicial enforcement of the
Secretary’s preliminary orders of
reinstatement is necessary to carry out
Congress’ clearly expressed intent that
whistleblowers be immediately
reinstated upon the Secretary’s finding
of reasonable cause to believe that
retaliation has occurred.
Sarbanes-Oxley also permits the
person on whose behalf the order was
issued under Sarbanes-Oxley to obtain
judicial enforcement of orders and the
terms of a settlement agreement. 18
U.S.C. 1514A(b)(2)(A) incorporating 49
U.S.C. 42121(b)(6).
Section 1980.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth SarbanesOxley’s provisions allowing a
complainant to bring an original de
novo action in district court, alleging the
same allegations contained in the
complaint filed with OSHA, if there has
been no final decision of the Secretary
within 180 days of the filing of the
complaint. This section has been

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amended to reflect the 2010 statutory
amendments which afford parties
bringing cases under 18 U.S.C.
1514A(b)(1)(B) the right to a trial by
jury.
This section also has been amended to
require complainants to provide filestamped copies of their complaint
within seven days after filing a
complaint in district court to the
Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is
pending. A copy of the complaint also
must be provided to the Regional
Administrator, the Assistant Secretary,
Occupational Safety and Health
Administration, and the Associate
Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor.
This provision is necessary to notify the
agency that the complainant has opted
to file a complaint in district court. This
provision is not a substitute for the
complainant’s compliance with the
requirements for service of process of
the district court complaint contained in
the Federal Rules of Civil Procedure and
the local rules of the district court
where the complaint is filed.
It is the Secretary’s position that
complainants may not initiate an action
in Federal court after the Secretary
issues a final decision, even if the date
of the final decision is more than 180
days after the filing of the complaint.
The purpose of the ‘‘kick-out’’ provision
is to aid the complainant in receiving a
prompt decision. That goal is not
implicated in a situation where the
complainant already has received a final
decision from the Secretary. In addition,
permitting the complainant to file a new
case in district court in such
circumstances could conflict with the
parties’ rights to seek judicial review of
the Secretary’s final decision in the
court of appeals.
Section 1980.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or
the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of
Sarbanes-Oxley requires.
No substantive changes have been
made to this section.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1980.103) which was previously
reviewed and approved for use by the
Office of Management and Budget
(‘‘OMB’’) and assigned OMB control
number 1218–0236 under the provisions

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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 this rule
adds new provisions and updates the
language of the former regulations to
implement the statutory changes made
by Dodd-Frank. 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 (adjusted annually for
inflation), 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 expected to have a negligible
economic impact. Therefore, no
economic impact analysis has been

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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 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).

1980.104 Investigation.
1980.105 Issuance of findings and
preliminary orders.

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 updates existing procedures and
implements changes necessitated by
enactment of Dodd-Frank. 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.

Authority: 18 U.S.C. 1514A, as amended
by the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010, Pub. L.
111–203 (July 21, 2010); Secretary of Labor’s
Order No. 4–2010 (Sept. 2, 2010), 75 FR
55355 (Sept. 10, 2010); Secretary of Labor’s
Order No. 1–2010 (Jan. 15, 2010), 75 FR 3924
(Jan. 25, 2010).

List of Subjects in 29 CFR Part 1980
Administrative practice and
procedure, Corporate fraud,
Employment, Investigations, Reporting
and recordkeeping requirements,
Whistleblower.
Signed at Washington, DC, on October 26,
2011.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1980 is
revised to read as follows:
PART 1980—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER SECTION 806
OF THE SARBANES-OXLEY ACT OF
2002, AS AMENDED
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec:
1980.100 Purpose and scope.
1980.101 Definitions.
1980.102 Obligations and prohibited acts.
1980.103 Filing of retaliation complaints.

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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
retaliation complaints.
1980.115 Special circumstances; waiver of
rules.

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, as
amended by the Dodd-Frank Wall Street
Reform and Consumer Protection Act of
2010, enacted into law July 21, 2010.
Sarbanes-Oxley provides for employee
protection from retaliation by
companies, their subsidiaries and
affiliates, officers, employees,
contractors, subcontractors, and agents
because the employee has engaged in
protected activity pertaining to a
violation or alleged violation of 18
U.S.C. 1341, 1343, 1344, or 1348, or any
rule or regulation of the Securities and
Exchange Commission, or any provision
of Federal law relating to fraud against
shareholders. Sarbanes-Oxley also
provides for employee protection from
retaliation by nationally recognized
statistical rating organizations, their
officers, employees, contractors,
subcontractors or agents because the
employee has engaged in protected
activity.
(b) This part establishes procedures
pursuant to Sarbanes-Oxley for the
expeditious handling of retaliation
complaints made by employees, or by
persons acting on their behalf. These

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rules, together with those codified at 29
CFR part 18, set forth the procedures for
submission of complaints under
Sarbanes-Oxley, investigations, issuance
of findings and preliminary orders,
objections to findings and orders,
litigation before administrative law
judges, post-hearing administrative
review, withdrawals, and settlements.

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§ 1980.101

Definitions.

As used in this part:
(a) Act means section 806 of the
Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of
the Sarbanes-Oxley Act of 2002, Pub. L.
107–204, July 30, 2002, codified at 18
U.S.C. 1514A, as amended by the DoddFrank Wall Street Reform and Consumer
Protection Act of 2010, Pub. L. 111–203,
July 21, 2010.
(b) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under the Act.
(c) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(d) Company means any company
with a class of securities registered
under section 12 of the Securities
Exchange Act of 1934 (15 U.S.C. 78l) or
any company required to file reports
under section 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78o(d))
including any subsidiary or affiliate
whose financial information is included
in the consolidated financial statements
of such company.
(e) Complainant means the employee
who filed a complaint under the Act or
on whose behalf a complaint was filed.
(f) Covered person means any
company, including any subsidiary or
affiliate whose financial information is
included in the consolidated financial
statements of such company, or any
nationally recognized statistical rating
organization, or any officer, employee,
contractor, subcontractor, or agent of
such company or nationally recognized
statistical rating organization.
(g) Employee means an individual
presently or formerly working for a
covered person, an individual applying
to work for a covered person, or an
individual whose employment could be
affected by a covered person.
(h) Nationally recognized statistical
rating organization means a credit rating
agency under 15 U.S.C. 78c(61) that:
(1) Issues credit ratings certified by
qualified institutional buyers, in
accordance with 15 U.S.C. 78o–
7(a)(1)(B)(ix), with respect to:
(i) Financial institutions, brokers, or
dealers;
(ii) Insurance companies;

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(iii) Corporate issuers;
(iv) Issuers of asset-backed securities
(as that term is defined in section
1101(c) of part 229 of title 17, Code of
Federal Regulations, as in effect on
September 29, 2006);
(v) Issuers of government securities,
municipal securities, or securities
issued by a foreign government; or
(vi) A combination of one or more
categories of obligors described in any
of paragraphs (h)(1)(i) through (v) of this
section; and
(2) Is registered under 15 U.S.C.
78o–7.
(i) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(j) Person means one or more
individuals, partnerships, associations,
companies, corporations, business
trusts, legal representatives or any group
of persons.
(k) Respondent means the person
named in the complaint who is alleged
to have violated the Act.
(l) Secretary means the Secretary of
Labor or persons to whom authority
under the Act has been delegated.
(m) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
§ 1980.102
acts.

Obligations and prohibited

(a) No covered person may discharge,
demote, suspend, threaten, harass or in
any other manner 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
because the employee, or any person
acting pursuant to the employee’s
request, has engaged in any of the
activities specified in paragraphs (b)(1)
and (2) of this section.
(b) An employee is protected against
retaliation (as described in paragraph (a)
of this section) by a covered person for
any lawful act done by the employee:
(1) To provide information, cause
information to be provided, or otherwise
assist in an investigation regarding any
conduct which the employee reasonably
believes constitutes a violation of 18
U.S.C. 1341, 1343, 1344, or 1348, any
rule or regulation of the Securities and
Exchange Commission, or any provision
of Federal law relating to fraud against
shareholders, when the information or
assistance is provided to or the
investigation is conducted by—
(i) A Federal regulatory or law
enforcement agency;
(ii) Any Member of Congress or any
committee of Congress; or

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(ii) 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 retaliation complaints.

(a) Who may file. An employee who
believes that he or she has been
retaliated against by a covered person in
violation of the Act may file, or have
filed on the employee’s behalf, a
complaint alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the
employee resides or was employed, but
may be filed with any OSHA officer or
employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet address: http://www.osha.gov
(d) Time for filing. Within 180 days
after an alleged violation of the Act
occurs or after the date on which the
employee became aware of the alleged
violation of the Act, any employee who
believes that he or she has been
retaliated against in violation of the Act
may file, or have filed on the employee’s
behalf, a complaint alleging such
retaliation. The date of the postmark,
facsimile transmittal, email
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. The time for filing a
complaint may be tolled for reasons
warranted by applicable case law.
§ 1980.104

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, and
other applicable confidentiality laws,

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and will also notify the respondent of its
rights under paragraphs (b) and (f) of
this section and paragraph (e) of
§ 1980.110. 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 Securities and Exchange
Commission.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
the Assistant Secretary a written
statement and any affidavits or
documents substantiating its position.
Within the same 20 days, the
respondent may request a meeting with
the Assistant Secretary to present its
position.
(c) Throughout the investigation, the
agency will provide to the complainant
(or the complainant’s legal counsel if
complainant is represented by counsel)
a copy of all of respondent’s
submissions to the agency that are
responsive to the complainant’s
whistleblower complaint. Before
providing such materials to the
complainant, the agency will redact
them, if necessary, in accordance with
the Privacy Act of 1974, 5 U.S.C. 552a,
and other applicable confidentiality
laws. The agency will also provide the
complainant with an opportunity to
respond to such submissions.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that protected
activity was a contributing factor in the
adverse action alleged in the complaint.
(2) The complaint, supplemented as
appropriate by interviews of the
complainant, must allege the existence
of facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a
protected activity;
(ii) The respondent knew or suspected
that the employee engaged in the
protected activity;
(iii) The employee suffered an adverse
action; and
(iv) The circumstances were sufficient
to raise the inference that the protected
activity was a contributing factor in the
adverse action.
(3) For purposes of determining
whether to investigate, the complainant
will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate

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through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complaint shows that the adverse
personnel action took place 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 (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 shall not
be conducted or will be discontinued if
the respondent demonstrates by clear
and convincing evidence that it would
have taken the same adverse action in
the absence of the complainant’s
protected activity.
(5) If the respondent fails to make a
timely response or fails to satisfy the
burden set forth in the prior paragraph,
the Assistant Secretary will proceed
with the investigation. The investigation
will proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 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 respondent has violated the Act and
that preliminary reinstatement is
warranted, the Assistant Secretary will
again contact the respondent (or the
respondent’s legal counsel, if
respondent is represented by counsel) to
give notice of the substance of the
relevant evidence supporting the
complainant’s allegations as developed
during the course of the investigation.
This evidence includes any witness
statements, which will be redacted to
protect the identity of confidential
informants where statements were given
in confidence; if the statements cannot
be redacted without revealing the
identity of confidential informants,
summaries of their contents will be
provided. The complainant will also
receive a copy of the materials that must
be provided to the respondent under
this paragraph. Before providing such
materials to the complainant, the agency
will redact them, if necessary, in

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accordance with the Privacy Act of
1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
respondent will be given the
opportunity to submit a written
response, to meet with the investigators,
to present statements from witnesses in
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 afterwards as the
Assistant Secretary and the respondent
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
shall issue, within 60 days of filing of
the complaint, written findings as to
whether or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of the Act.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
he or she shall accompany the findings
with a preliminary order providing
relief to the complainant. The
preliminary order will include all relief
necessary to make the employee whole,
including reinstatement with the same
seniority status that the complainant
would have had but for the retaliation;
back pay with interest; and
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney’s fees.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
(2) If the Assistant Secretary
concludes that a violation has not
occurred, the Assistant Secretary will
notify the parties of that finding.
(b) The findings, and where
appropriate, the preliminary order will
be sent by certified mail, return receipt
requested, to all parties of record (and
each party’s legal counsel if the party is
represented by counsel). The findings,
and where appropriate, the preliminary
order will inform the parties of the right
to object to the findings and/or order
and to request a hearing, and of the right
of the respondent to request an award of
attorney’s fees not exceeding $1,000
from the administrative law judge (ALJ)
regardless of whether the respondent
has filed objections, if the complaint
was frivolous or brought in bad faith.
The findings, and where appropriate,

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the 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 any preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or a
request for hearing has been timely filed
as provided at § 1980.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and the
preliminary order, regardless of any
objections to the findings and/or the
order.
Subpart B—Litigation

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§ 1980.106 Objections to the findings and
the preliminary order and request for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney’s fees
under the Act, must file any objections
and/or a request for a hearing on the
record within 30 days of receipt of the
findings and preliminary order pursuant
to § 1980.105(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 email
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.

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The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement, which shall be granted
only based on exceptional
circumstances. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or preliminary order shall become
the final decision of the Secretary, not
subject to judicial review.

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 all other parties.
(b) The Securities and Exchange
Commission, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the Commission’s discretion. At the
request of the Securities and Exchange
Commission, copies of all pleadings in
a case must be sent to the Commission,
whether or not the Commission is
participating in the proceeding.

§ 1980.107

§ 1980.109 Decision and orders of the
administrative law judge.

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
subpart A of Part 18 of this title.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to an ALJ who will
notify the parties, by certified mail, of
the day, time, and place of hearing. The
hearing is to commence expeditiously,
except upon a showing of good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo, on the record. Administrative law
judges have broad discretion to limit
discovery in order to expedite the
hearing.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be
consolidated and a single hearing will
be conducted.
(d) Formal rules of evidence will not
apply, but rules or principles designed
to assure production of the most
probative evidence will be applied. The
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
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
ALJ, 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

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(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither the Assistant Secretary’s
determination to dismiss a complaint
without completing an investigation
pursuant to § 1980.104(e) nor the
Assistant Secretary’s determination to
proceed with an investigation is subject
to review by the ALJ, and a complaint
may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the
order will provide all relief necessary to
make the employee whole, including
reinstatement with the same seniority
status that the complainant would have
had but for the retaliation; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney’s fees. Interest on
back pay will be calculated using the
interest rate applicable to underpayment

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of taxes under 26 U.S.C. 6621 and will
be compounded daily.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. 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, U.S. Department of Labor.
Any ALJ’s decision requiring
reinstatement or lifting an order of
reinstatement by the Assistant Secretary
will be effective immediately upon
receipt of the decision by the
respondent. All other portions of the
ALJ’s order will be effective 10 business
days after the date of the decision unless
a timely petition for review has been
filed with the Administrative Review
Board.

srobinson on DSK4SPTVN1PROD with RULES

§ 1980.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint was frivolous or brought
in bad faith who seeks an award of
attorney’s fees, must file a written
petition for review with the
Administrative Review Board, U.S.
Department of Labor (ARB), 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 parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. A petition must be
filed within 10 business days of the date
of the decision of the ALJ. The date of
the postmark, facsimile transmittal, or
email communication will be
considered to be the date of filing; if the
petition is filed in person, by handdelivery 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.

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Jkt 226001

(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 the order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB shall
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 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, 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 include all relief
necessary to make the complainant
whole, including reinstatement with the
same seniority status that the
complainant would have had but for the
retaliation; back pay with interest; and
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney’s fees.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
(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.

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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 Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint by notifying the Assistant
Secretary, orally or in writing, of his or
her withdrawal. The Assistant Secretary
then will confirm in writing the
complainant’s desire to withdraw and
determine whether to approve the
withdrawal. The Assistant Secretary
will notify the parties (and each party’s
legal counsel if the party is represented
by counsel) of the approval of any
withdrawal. If the complaint is
withdrawn because of settlement, the
settlement must be submitted for
approval in accordance with paragraph
(d) of this section. A complainant may
not withdraw his or her complaint after
the filing of objections to the Assistant
Secretary’s findings and/or preliminary
order.
(b) The Assistant Secretary may
withdraw his or her findings and/or
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1980.106,
provided that no objection has yet been
filed, and substitute new findings and/
or preliminary order. The date of the
receipt of the substituted findings and/
or order will begin a new 30-day
objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw 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
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
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.

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Federal Register / Vol. 76, No. 213 / Thursday, November 3, 2011 / Rules and Regulations
(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 § 1980.113.
§ 1980.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1980.109 and
1980.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order 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 such court.

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§ 1980.113

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§ 1980.114 District court jurisdiction of
retaliation complaints.

(a) If the Secretary has not issued a
final decision within 180 days of the
filing of the complaint, and there is no
showing that there has been delay due
to the bad faith of the complainant, the
complainant may bring an action at law
or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such an action without regard to the
amount in controversy. A party to an
action brought under this paragraph
shall be entitled to trial by jury.
(b) Within seven days after filing a
complaint in Federal court, a
complainant must file with the
Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is
pending, a copy of the file-stamped
complaint. A copy of the complaint also
must be served on the 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.
§ 1980.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of this
part, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three days notice to all
parties, waive any rule or issue any
orders that justice or the administration
of the Act requires.
[FR Doc. 2011–28274 Filed 11–2–11; 8:45 am]
BILLING CODE 4510–26–P

Judicial enforcement.

Whenever any person has failed to
comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under the Act, the Secretary 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:

VerDate Mar<15>2010

(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.

DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 706

Department of the Navy, DoD.
ACTION: Correcting amendment.
AGENCY:

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The Department of the Navy
(DoN) published a final rule in the
Federal Register (76 FR 58399) of
September 21, 2011, concerning
certifications and exemptions under the
International Regulations for Preventing
collisions at Sea, 1972 (72 COLREGS).
The document added an entry to Table
Four, paragraph 23, in § 706.2. The
existing table has three columns and the
proposed entry has four columns. This
correcting amendment corrects that
information.

SUMMARY:

DATES:

Effective November 3, 2011.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Jaewon Choi, JAGC, U.S.
Navy, Admiralty Attorney (Admiralty
and Maritime Law), Office of the Judge
Advocate General, Department of the
Navy, 1322 Patterson Avenue SE., Suite
3000, Washington Navy Yard, DC
20374–5066, telephone number: (202)
685–5040.
Pursuant
to the authority granted in 33 U.S.C.
1605, the DoN amends 32 CFR part 706.
This amendment provides notice that
the Deputy Assistant Judge Advocate
General (DAJAG) (Admiralty and
Maritime Law), under authority
delegated by the Secretary of the Navy,
has certified that USS FORT WORTH
(LCS 3) is a vessel of the Navy which,
due to its special construction and
purpose, cannot fully comply with the
following specific provisions of 72
COLREGS without interfering with its
special function as a naval ship: Rule
27, paragraph (b)i, pertaining to the
verticality of the three all-round task
lights. The DAJAG (Admiralty and
Maritime Law) has also certified that the
lights involved are located in closest
possible compliance with the applicable
72 COLREGS requirements.
Moreover, it has been determined, in
accordance with 32 CFR parts 296 and
701, that publication of this amendment
for public comment prior to adoption is
impracticable, unnecessary, and
contrary to public interest since it is
based on technical findings that the
placement of lights on this vessel in a
manner differently from that prescribed
herein will adversely affect the vessel’s
ability to perform its military functions.

SUPPLEMENTARY INFORMATION:

List of Subjects in 32 CFR Part 706

Certifications and Exemptions Under
the International Regulations for
Preventing Collisions at Sea, 1972;
Correction

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Marine safety, Navigation (water), and
Vessels.
Accordingly, 32 CFR part 706 is
corrected pursuant to the authority
granted in 33 U.S.C. 1605 by making the
following correcting amendments:

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