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liability company, or sole
proprietorship.
The final regulations also provide that
a qualified individual shall file a
certification with the IRS in the manner
and at the time prescribed in forms,
publications, or other guidance, such as
Form 2210, ‘‘Underpayment of
Estimated Tax by Individuals, Estates,
and Trusts’’ (or any successor form and
its instructions).
The final regulations will be
applicable for taxable years that begin in
2009. The reduced percentage in section
6654(d)(1)(D) is limited to taxable years
that begin in 2009 and does not apply
to taxable years that begin before or after
2009.
Special Analyses
It has been determined that this
Treasury decision is not a significant
regulatory action as defined in
Executive Order 12866, as
supplemented by Executive Order
13563. Therefore, a regulatory
assessment is not required. It also has
been determined that section 553(b) of
the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to these
regulations, and because the regulations
do not impose a collection of
information on small entities, the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Code, the notice
of proposed rulemaking that preceded
these final regulations was submitted to
the Chief Counsel for Advocacy of the
Small Business Administration for
comment on its impact on small
business and no comments were
received.
Drafting Information
The principal author of these
regulations is Janet Engel Kidd, Office of
the Associate Chief Counsel, Procedure
and Administration.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
amended as follows:

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PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read in part as
follows:

■

■ Par. 2. Section 1.6654–2 is amended
by revising paragraphs (a) introductory
text, (a)(1)(ii), and (f) to read as follows:

§ 1.6654–2 Exceptions to imposition of the
addition to the tax in the case of
individuals.

(a) In general. The addition to the tax
under section 6654 will not be imposed
for any underpayment of any
installment of estimated tax if, on or
before the date prescribed for payment
of the installment, the total amount of
all payments of estimated tax made
equals or exceeds the lesser of the
amount in § 1.6654–2(a)(1) or the
amount in § 1.6654–2(a)(2).
(1) * * *
(ii) Special rule for taxable years
beginning in 2009. For any taxable year
beginning in 2009, for a qualified
individual, the amount described in
paragraph (a)(1)(i) of this section is
reduced to 90 percent of that amount.
(A) Qualified individual means any
individual whose adjusted gross income
shown on the individual’s return for the
preceding taxable year is less than
$500,000 and who certifies, as
prescribed in paragraph (a)(1)(ii)(D) of
this section, that more than 50 percent
of the gross income shown on the return
for the preceding taxable year was
income from a small business.
(B) Income from a small business
means income from the operation of a
bona fide trade or business of which the
individual was an owner during
calendar year 2009, and that on average
had fewer than 500 employees in
calendar year 2008.
(C) The trade or business may be
organized as, or take the legal form of,
a corporation, partnership, limited
liability company, or sole
proprietorship.
(D) A qualified individual shall file a
certification of the individual’s
qualification in the manner and at the
time prescribed by the Internal Revenue
Service in forms, publications, or other
guidance.
*
*
*
*
*
(f) Effective/applicability date.
Paragraph (a)(1)(ii) of this section
applies to any taxable year beginning in
2009 and does not apply to any taxable
years beginning before or after 2009.

Authority: 26 U.S.C. 7805 * * *
Section 1.6654–2 also issued under 26
U.S.C. 6654(m).

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§ 1.6654–2T
■

[Removed]

Par. 3. Section 1.6654–2T is removed.

Steven T. Miller,
Deputy Commissioner for Services and
Enforcement.
Approved: February 22, 2013.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. 2013–04680 Filed 2–25–13; 4:15 pm]
BILLING CODE 4830–01–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1984
[Docket Number OSHA–2011–0193]
RIN 1218–AC79

Procedures for the Handling of
Retaliation Complaints Under Section
1558 of the Affordable Care Act
Occupational Safety and Health
Administration, Labor.
ACTION: Interim final rule; request for
comments.
AGENCY:

SUMMARY: This document provides the
interim final regulations governing the
employee protection (whistleblower)
provision of section 1558 of the
Affordable Care Act, which added
section 18C of the Fair Labor Standards
Act, to provide protections to employees
of health insurance issuers or other
employers who may have been subject
to retaliation for reporting potential
violations of the law’s consumer
protections (e.g., the prohibition on
denials of insurance due to pre-existing
conditions) or affordability assistance
provisions (e.g., access to health
insurance premium tax credits). This
interim rule establishes procedures and
time frames for the handling of
retaliation complaints under section
18C, including procedures and time
frames for employee complaints to the
Occupational Safety and Health
Administration (OSHA), investigations
by OSHA, appeals of OSHA
determinations to an administrative law
judge (ALJ) for a hearing de novo,
hearings by ALJs, review of ALJ
decisions by the Administrative Review
Board (ARB) (acting on behalf of the
Secretary of Labor), and judicial review
of the Secretary’s final decision.
DATES: This interim final rule is
effective on February 27, 2013.
Comments and additional materials
must be submitted (post-marked, sent or
received) by April 29, 2013.

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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–2011–0193, 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., ET.
Instructions: All submissions must
include the Agency name and the OSHA
docket number for this rulemaking
(Docket No. OSHA–2011–0193).
Submissions, including any personal
information provided, are placed in the
public docket without change and may
be made available online at http://
www.regulations.gov. Therefore, OSHA
cautions against submitting personal
information such as social security
numbers and birth dates.
Docket: To read or download
submissions or other material in the
docket, go to http://www.regulations.gov
or the OSHA Docket Office at the
address above. All documents in the
docket are listed in the http://
www.regulations.gov index, however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through the Web site.
All submissions, including copyrighted
material, are available for inspection
and copying at the OSHA Docket Office.
FOR FURTHER INFORMATION CONTACT:
For Press inquiries: Frank Meilinger,
Director, OSHA Office of
Communications, Room N–3647, U.S.
Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210;
telephone: (202) 693–1999. This is not
a toll-free number. Email:
[email protected].
For technical inquiries: Katelyn
Wendell, Program Analyst, Directorate
of Whistleblower Protection Programs,
OSHA, U.S. Department of Labor, Room
N–4624, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone (202)
693–2199. This is not a toll-free number.
Email: [email protected]. This
Federal Register publication is available
in alternative formats. The alternative
formats available are: Large print,
electronic file on computer disk (Word

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ADDRESSES:

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Perfect, ASCII, Mates with Duxbury
Braille System), and audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
The Patient Protection and Affordable
Care Act, Public Law 111–148, 124 Stat.
119, was signed into law on March 23,
2010 and was amended by the Health
Care and Education Reconciliation Act
of 2010, Public Law 111–152, 124 Stat.
1029, that was signed into law on March
30, 2010. The terms ‘‘Affordable Care
Act’’ or ‘‘Act’’ are used in this
rulemaking to refer to the final,
amended version of the law. The
Affordable Care Act contains various
provisions designed to make health care
more affordable and accountable.
Among the policies to achieve its
goals, the Affordable Care Act’s section
1558 amended the Fair Labor Standards
Act (FLSA) to add section 18C, 29
U.S.C. 218C (section 18C), which
provides protection to employees
against retaliation by an employer for
engaging in certain protected activities.
Under section 18C, an employer may
not retaliate against an employee for
receiving a credit under section 36B of
the Internal Revenue Code of 1986 or a
cost-sharing reduction (referred to as a
‘‘subsidy’’ in section 18C) under section
1402 of Affordable Care Act. These
provisions allow employees to receive
tax credits or cost-sharing reductions
while enrolled in a qualified health plan
through an exchange, if their employer
does not offer a coverage option that is
affordable and provides a basic level of
value (i.e., ‘‘minimum value’’). Certain
large employers who fail to offer
affordable plans that meet this
minimum value may be assessed a tax
penalty if any of their full-time
employees receive a premium tax credit
through the Exchange. Thus, the
relationship between the employee’s
receipt of a credit and the potential tax
penalty imposed on an employer could
create an incentive for an employer to
retaliate against an employee. Section
18C protects employees against such
retaliation.
Section 18C also protects employees
against retaliation because they
provided or are about to provide to their
employer, the Federal Government, or
the attorney general of a State
information relating to any violation of,
or any act or omission the employee
reasonably believes to be a violation of,
any provision of or amendment made by
title I of the Affordable Care Act;
testified or are about to testify in a
proceeding concerning such violation;
assisted or participated, or are about to
assist or participate, in such a
proceeding; or objected to, or refused to

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13223

participate in, any activity, policy,
practice, or assigned task that the
employee reasonably believed to be in
violation of any provision of title I of the
Act (or amendment), or any order, rule,
regulation, standard, or ban under title
I of the Act (or amendment). Title I
includes a range of insurance company
accountability policies such as: The
prohibition of lifetime dollar limits on
coverage, the requirement for most
plans to cover recommended preventive
services with no cost sharing, and,
starting in 2014, guaranteed availability
(also known as guaranteed issue)
protections so that individuals and
employers will be able to obtain
coverage that currently can be denied
due to a pre-existing condition, and the
prohibition on the use of factors such as
health status, medical history, gender,
and industry of employment to set
premium rates.
Section 18C became effective on the
date the health care law was enacted,
March 23, 2010. On January 1, 2014, the
scope of coverage of section 18C will be
expanded by section 2706(b) of the
Public Health Service Act (PHSA), 42
U.S.C. 300gg et seq., as amended by
section 1201 of the Affordable Care Act.
Section 2706 of the PHSA is titled
‘‘Non-Discrimination in Health Care’’
and provides, in relevant part: ‘‘(b)
INDIVIDUALS.—The provisions of
section 1558 of the Patient Protection
and Affordable Care Act (relating to
non-discrimination) shall apply with
respect to a group health plan or health
insurance issuer offering group or
individual health insurance coverage.’’
Thus, the protections provided by
section 18C will extend in 2014 to cover
retaliation with respect to an employee’s
compensation, terms, conditions or
other privileges of employment by
health insurance issuers offering group
or individual health insurance coverage
regardless of whether those issuers are
the employer of the person retaliated
against. Since the enactment of the
Affordable Care Act, a health insurance
issuer is prohibited from retaliating
against its own employees who engage
in activity protected by section 18C.
Beginning in 2014, those issuers will
also be prohibited from retaliating
against persons who are not their
employees with respect to those
persons’ compensation, terms,
conditions or other privileges of
employment, including their employersponsored health insurance. An
employee will be protected from
retaliation (e.g., having that issuer limit
or end health insurance coverage), not
only by her employer, but also by the
insurance issuer that provides

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employer-sponsored health insurance
coverage to the employee.
These interim rules establish
procedures for the handling of
whistleblower complaints under section
18C of the FLSA; these procedures are
very similar to those used for
whistleblower complaints in other
industries.
II. Summary of Statutory Procedures
Section 18C(b)(1) adopts the
procedures, notifications, burdens of
proof, remedies, and statutes of
limitation in the Consumer Product
Safety Improvement Act of 2008
(CPSIA), 15 U.S.C. 2087(b).
Accordingly, a covered employee may
file a complaint with the Secretary of
Labor (Secretary) within 180 days of the
alleged retaliation. Upon receipt of the
complaint, the Secretary must provide
written notice to the person or persons
named in the complaint alleged to have
violated the Act (respondent) of the
filing of the complaint, the allegations
contained in the complaint, the
substance of the evidence supporting
the complaint, and the rights afforded
the respondent throughout the
investigation. The Secretary must then,
within 60 days of receipt of the
complaint, afford the complainant and
respondent an opportunity to submit a
response and meet with the investigator
to present statements from witnesses,
and conduct an investigation.
The Secretary may conduct an
investigation only if the complainant
has made a prima facie showing that the
protected activity was a contributing
factor in the adverse action alleged in
the complaint and the respondent has
not demonstrated, through clear and
convincing evidence, that the
respondent would have taken the same
adverse action in the absence of that
activity.
After investigating a complaint, the
Secretary will issue written findings. If,
as a result of the investigation, the
Secretary finds there is reasonable cause
to believe that retaliation has occurred,
the Secretary must notify the
respondent of those findings, along with
a preliminary order that requires the
respondent to, where appropriate: Take
affirmative action to abate the violation;
reinstate the complainant to his or her
former position together with the
compensation of that position
(including back pay) and restore the
terms, conditions, and privileges
associated with his or her employment;
and provide compensatory damages to
the complainant, as well as all costs and
expenses (including attorney fees and
expert witness fees) reasonably incurred
by the complainant for, or in connection

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with, the bringing of the complaint
upon which the order was issued.
The complainant and the respondent
then have 30 days after the date of the
Secretary’s notification in which to file
objections to the findings and/or
preliminary order and request a hearing
before an ALJ. The filing of objections
under section 18C of the FLSA will stay
any remedy in the preliminary order
except for preliminary reinstatement. If
a hearing before an ALJ is not requested
within 30 days, the preliminary order
becomes final and is not subject to
judicial review.
If a hearing is held, the statute
requires the hearing to be conducted
‘‘expeditiously.’’ The Secretary then has
120 days after the conclusion of any
hearing in which to issue a final order,
which may provide appropriate relief or
deny the complaint. Until the
Secretary’s final order is issued, the
Secretary, the complainant, and the
respondent may enter into a settlement
agreement that terminates the
proceeding. Where the Secretary has
determined that a violation has
occurred, the Secretary, where
appropriate, will assess against the
respondent a sum equal to the total
amount of all costs and expenses,
including attorney’s and expert witness
fees, reasonably incurred by the
complainant for, or in connection with,
the bringing of the complaint upon
which the Secretary issued the order.
The Secretary also may award a
prevailing respondent a reasonable
attorney’s fee, not exceeding $1,000, if
the Secretary finds that the complaint is
frivolous or has been brought in bad
faith. Within 60 days of the issuance of
the final order, any person adversely
affected or aggrieved by the Secretary’s
final order may file an appeal with the
United States Court of Appeals for the
circuit in which the violation occurred
or the circuit where the complainant
resided on the date of the violation.
The statute permits the employee to
seek de novo review of the complaint by
a United States district court in the
event that the Secretary has not issued
a final decision within 210 days after
the filing of the complaint, or within 90
days after receiving a written
determination. The court will have
jurisdiction over the action without
regard to the amount in controversy,
and the case will be tried before a jury
at the request of either party.
Finally, section 18C(b)(2) of the FLSA
provides that nothing in section 18C
shall be deemed to diminish the rights,
privileges, or remedies of any employee
under any Federal or State law or under
any collective bargaining agreement,
and the rights and remedies in section

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18C may not be waived by any
agreement, policy, form, or condition of
employment.
III. Summary and Discussion of
Regulatory Provisions
The regulatory provisions in this part
have been written and organized to be
consistent with other whistleblower
regulations promulgated by OSHA to
the extent possible within the bounds of
the statutory language of section 18C of
the FLSA and 15 U.S.C. 2087(b) of
CPSIA. Responsibility for receiving and
investigating complaints under section
18C has been delegated to the Assistant
Secretary for Occupational Safety and
Health. Secretary’s Order 1–2012 (Jan.
18, 2012), 77 FR 3912 (Jan. 25, 2012).
Hearings on determinations by the
Assistant Secretary are conducted by the
Office of Administrative Law Judges,
and appeals from decisions by ALJs are
decided by the ARB. Secretary’s Order
1–2010 (Jan. 15, 2010), 75 FR 3924 (Jan.
25, 2010).
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1984.100 Purpose and Scope
This section describes the purpose of
the regulations implementing section
18C of the FLSA and provides an
overview of the procedures covered by
these regulations.
Section 1984.101 Definitions
This section includes general
definitions for the Affordable Care Act
whistleblower provision codified at
section 18C of the FLSA. The
definitions of the terms ‘‘employer,’’
‘‘employee,’’ and ‘‘person’’ from section
3 of the FLSA, 29 U.S.C. 203, apply to
these rules and are included here.
The FLSA defines ‘‘employer’’ as
including ‘‘any person acting directly or
indirectly in the interest of an employer
in relation to an employee and includes
a public agency, but does not include
any labor organization (other than when
acting as an employer) or anyone acting
in the capacity of officer or agent of
such labor organization.’’ 29 U.S.C.
203(d). The FLSA defines ‘‘person’’ to
mean ‘‘an individual, partnership,
association, corporation, business trust,
legal representative, or any organized
group of persons.’’ 29 U.S.C. 203(a).
The FLSA defines ‘‘employee’’ to
mean ‘‘any individual employed by an
employer.’’ 29 U.S.C. 203(e)(1). In the
case of an individual employed by a
public agency, the term employee
means any individual employed by the
Government of the United States: As a
civilian in the military departments (as
defined in section 102 of the U.S. Code
at title 5), in any executive agency (as

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defined in section 105 of such title), in
any unit of the judicial branch of the
Government which has positions in the
competitive service, in a
nonappropriated fund instrumentality
under the jurisdiction of the Armed
Forces, in the Library of Congress, or in
the Government Printing Office. 29
U.S.C. 203(e)(2)(A). An employee
generally also includes any individual
employed by the United States Postal
Service or the Postal Regulatory
Commission, 29 U.S.C. 203(e)(2)(b); and
any individual employed by a State,
political subdivision of a State, or an
interstate governmental agency. The
definition of ‘‘employee’’ under the
FLSA does not include an individual
who is not subject to the civil service
laws of the State, political subdivision,
or agency which employs him; and who
holds a public elective office of that
State, political subdivision, or agency, is
selected by the holder of such an office
to be a member of his personal staff, is
appointed by such an officeholder to
serve on a policymaking level, is an
immediate adviser to such an
officeholder with respect to the
constitutional or legal powers of his
office, or is an employee in the
legislative branch or legislative body of
that State, political subdivision, or
agency and is not employed by the
legislative library of such State, political
subdivision, or agency. 29 U.S.C.
203(e)(2)(c).
Consistent with the Secretary’s
interpretation of the term ‘‘employee’’ in
the other whistleblower statutes
administered by OSHA 1 and with the
Secretary’s interpretation of the term
‘‘employee’’ under the anti-retaliation
provision found at section 15(a)(3) of
the FLSA, 29 U.S.C. 215(a)(3),2 the
1 See, e.g., 29 CFR 1980.101(g) (defining employee
to include former employees and applicants under
the whistleblower provisions in the Sarbanes-Oxley
Act); 29 CFR 1978.101 (Surface Transportation
Assistance Act); 29 CFR 1981.101 (Pipeline Safety
Improvement Act); 29 CFR 1982.101(d) (Federal
Railroad Safety Act and the National Transit
Systems Security Act); 29 CFR 1983.101(h)
(Consumer Product Safety Improvement Act).
2 See Brief for the Secretary of Labor and the
Equal Employment Opportunity Commission as
Amicus Curiae, Dellinger v. Science Applications
Int’l Corp., No. 10–1499 (4th Cir. Oct. 15,
2010)(explaining that the phrase ‘‘any employee’’ in
section 15(a)(3) of the FLSA does not limit an
individual’s retaliation claims to her current
employer, but rather extends protection to
prospective employees from retaliation for engaging
in protected activity), and Brief of the Secretary of
Labor and Equal Employment Opportunity
Commission as Amicus Curiae, Dellinger v. Science
Applications Int’l Corp., No. 10–1499 (4th Cir. Sept.
9, 2011) (same); but see Dellinger v. Science
Applications Int’l Corp., 649 F.3d 226, 229–31 & n.2
(4th Cir. 2011) (accepting that former employees are
protected from retaliation under section 15(a)(3) of
the FLSA but holding that applicants for
employment are not).

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definition of the term ‘‘employee’’ in
section 1984.101 also includes former
employees and applicants for
employment. This interpretation is
supported by section 18C’s plain
language which prohibits retaliation
against ‘‘any employee’’ and provides
that ‘‘[a]n employee who believes that
he or she has been discharged or
otherwise discriminated against by any
employer in violation of this section’’
may file a complaint with the Secretary
of Labor, (Emphasis added). Section
18C’s broad protection of ‘‘any
employee’’ from discrimination and
provision of a cause of action against
‘‘any employer’’ for retaliation makes
clear that the parties need not have a
current employment relationship.
Section 18C’s broad protections, like the
protections in section 15(a)(3), contrast
with the narrower protections of
sections 6 and 7 of the FLSA. Sections
6 and 7 provide respectively that an
employer must pay at least the
minimum wage to ‘‘each of his
employees’’ and must pay overtime to
‘‘any of his employees,’’ and thus
require a current employment
relationship. See 29 U.S.C. 206(a) and
(b), 29 U.S.C. 207(a)(1) and (2). Congress
chose to use the broad term ‘‘any’’ to
modify employee and employer in
Sections 18C(a) and (b), rather than
providing more restrictively that, for
example, ‘‘no employer shall discharge
or in any manner discriminate against
any of his employees’’ or ‘‘an employee
who believes that he or she has been
discharged or otherwise discriminated
against by his employer’’ may file a
complaint with the Secretary of Labor.
The Supreme Court has made clear that
‘‘any’’ has an expansive meaning that
does not limit the word it modifies. See,
e.g., Kasten v. Saint-Gobain
Performance Plastics Corp., 131 S. Ct.
1325, 1332 (2011) (noting that the use of
‘‘any’’ in the phrase ‘‘filed any
complaint’’ in section 15(a)(3) of the
FLSA ‘‘suggests a broad interpretation
that would include an oral complaint’’);
U.S. v. Gonzales, 520 U.S. 1, 5 (1997)
(‘‘any’’ has an expansive meaning, that
is, ‘‘one or some indiscriminately of
whatever kind’’) (internal citations
omitted). In addition, the explicit
inclusion of reinstatement and
preliminary reinstatement (both of
which can only be awarded to former
employees) among the remedies
available for whistleblowers under
Section 18C confirms that the
complainant and the respondent need
not have a current employment
relationship in order for the
complainant to have a claim under
section 18C. See Dellinger v. Science

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Applications Int’l Corp., 649 F.3d at 230
n.2 (section 15(a)(3) of the FLSA
protects former employees); cf.
Robinson v. Shell Oil Co., 519 U.S. 337
(1997) (term ‘‘employees’’ in antiretaliation provision of Title VII of the
Civil Rights Act of 1964 includes former
employees).
Section 1984.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under section 18C of
the FLSA, and the conduct that is
prohibited in response to any protected
activities. Section 18C(a)(1) protects any
employee from retaliation ‘‘because the
employee received a credit under
section 36B of the Internal Revenue
Code of 1986 or a subsidy under section
1402 of this Act.’’ The reference to ‘‘a
subsidy under section 1402 this Act’’ in
section 18C(a)(1) refers to receipt of a
cost-sharing reduction under section
1402 of the Affordable Care Act. 42
U.S.C. 18071.
Under section 18C(a)(2), an employer
may not retaliate against an employee
because the employee ‘‘provided,
caused to be provided, or is about to
provide or cause to be provided to the
employer, the Federal Government, or
the attorney general of a State
information relating to any violation of,
or any act or omission the employee
reasonably believes to be a violation of,
any provision of this title (or an
amendment made by this title).’’ Section
18C also protects employees who testify,
assist or participate in proceedings
concerning such violations. Sections
18C(a)(3) and (4), 29 U.S.C. 218C(a)(3)
and (4). Finally, section 18C(a)(5)
prohibits retaliation because an
employee ‘‘objected to, or refused to
participate in, any activity, policy,
practice, or assigned task that the
employee (or other such person)
reasonably believed to be in violation of
any provision of this title (or
amendment), or any order, rule,
regulation, standard, or ban under this
title (or amendment).’’ References to
‘‘this title’’ in section 18C(a)(2) and (5)
refer to Title I of the Affordable Care
Act. This includes health insurance
reforms such as providing guaranteed
availability (also known as guaranteed
issue) protections so that individuals
and employers will be able to obtain
coverage when it currently can be
denied, continuing current guaranteed
renewability protections, prohibiting the
use of factors such as health status,
medical history, gender, and industry of
employment to set premium rates,
limiting age rating, and prohibiting
issuers from dividing up their insurance
pools within markets.

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In order to have a ‘‘reasonable belief’’
under sections 18C(a)(2) and (5), a
complainant must have both a
subjective, good faith belief and an
objectively reasonable belief that the
complained-of conduct violates one of
the listed categories of law. See
Sylvester v. Parexel Int’l LLC, ARB No.
07–123, 2011 WL 2165854, at *11–12
(ARB May 25, 2011) (discussing the
reasonable belief standard under
analogous language in the SarbanesOxley Act whistleblower provision, 18
U.S.C. 1514A). The requirement that the
complainant have a subjective, good
faith belief is satisfied so long as the
complainant actually believed that the
conduct complained of violated the
relevant law. See id. The
‘‘reasonableness’’ of a complainant’s
belief is typically determined ‘‘based on
the knowledge available to a reasonable
person in the same factual
circumstances with the same training
and experience as the aggrieved
employee.’’ Id. at *12 (internal
quotation marks and citation omitted).
However, the complainant need not
show that the conduct complained of
constituted an actual violation of law.
Pursuant to this standard, an employee’s
whistleblower activity is protected
where it is based on a reasonable, but
mistaken, belief that a violation of the
relevant law has occurred. Id. at *13.
Section 1984.103 Filing of Retaliation
Complaint
This section explains the
requirements for filing a retaliation
complaint under section 18C. To be
timely, a complaint must be filed within
180 days of when the alleged violation
occurs. Under Delaware State College v.
Ricks, 449 U.S. 250, 258 (1980), this is
considered to be when the retaliatory
decision has been both made and
communicated to the complainant. In
other words, the limitations period
commences once the employee is aware
or reasonably should be aware of the
employer’s decision. Equal Emp’t
Opportunity Comm’n v. United Parcel
Serv., Inc., 249 F.3d 557, 561–62 (6th
Cir. 2001). However, the time for filing
a complaint may be tolled for reasons
warranted by applicable case law.
Complaints filed under section 18C of
the FLSA need not be in any particular
form. They may be either oral or in
writing. If the complainant is unable to
file the complaint in English, OSHA
will accept the complaint in any
language. With the consent of the
employee, complaints may be filed by
any person on the employee’s behalf.
OSHA notes that a complaint of
retaliation filed with OSHA under the
Affordable Care Act is not a formal

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document and need not conform to the
pleading standards for complaints filed
in federal district court articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009). See Sylvester v. Parexel
Int’l, Inc., ARB No. 07–123, 2011 WL
2165854, at *9–10 (ARB May 26, 2011)
(holding whistleblower complaints filed
with OSHA under analogous provisions
in the Sarbanes-Oxley Act need not
conform to federal court pleading
standards). Rather, the complaint filed
with OSHA under this section simply
alerts the Agency to the existence of the
alleged retaliation and the
complainant’s desire that the Agency
investigate the complaint. Upon the
filing of a complaint with OSHA, the
Assistant Secretary is to determine
whether ‘‘the complaint, supplemented
as appropriate by interviews of the
complainant’’ alleges ‘‘the existence of
facts and evidence to make a prima facie
showing.’’ 29 CFR 1984.104(e). As
explained in section 1984.104(e), if the
complaint, supplemented as
appropriate, contains a prima facie
allegation, and the respondent does not
show clear and convincing evidence
that it would have taken the same action
in the absence of the alleged protected
activity, OSHA conducts an
investigation to determine whether
there is reasonable cause to believe that
retaliation has occurred. See 15 U.S.C.
2087(b)(2), 29 CFR 1984.104(e).
Section 1984.104 Investigation
This section describes the procedures
that apply to the investigation of
complaints under section 18C.
Paragraph (a) of this section outlines the
procedures for notifying the parties and
appropriate Federal agencies of the
complaint and notifying the respondent
of its rights under these regulations.
Paragraph (b) describes the procedures
for the respondent to submit its
response to the complaint. Paragraph (c)
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
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.
Paragraph (d) of this section discusses
confidentiality of information provided
during investigations. Paragraph (e) of
this section sets forth the applicable

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burdens of proof. Paragraph (f) describes
the procedures the Assistant Secretary
will follow prior to the issuance of
findings and a preliminary order when
the Assistant Secretary has reasonable
cause to believe that a violation has
occurred.
Section 18C of the FLSA incorporates
the burdens of proof set forth in CPSIA.
15 U.S.C. 2087(b). That 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
evidence to meet the required showing.
The 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
required 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 Energy
Reorganization Act of 1974 (ERA),
which is the same framework now
applicable to section 18C of the FLSA,
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 respondent
demonstrates, by clear and convincing
evidence, that it would have taken the
same adverse action in the absence of
the protected activity. Thus, OSHA
must dismiss a complaint under section
18C of the FLSA 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 respondent 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’’ in the alleged adverse action. If
the employee proves that the alleged

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protected activity was a contributing
factor in the adverse action, the
respondent, 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)
(internal quotation marks, emphasis and
citation omitted) (discussing the
Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)). In proving that protected
activity was a contributing factor in the
adverse action, ‘‘ ‘a complainant need
not necessarily prove that the
respondent’s articulated reason was a
pretext in order to prevail,’ ’’ because a
complainant alternatively can prevail by
showing that the respondent’s ‘‘ ‘reason,
while true, is only one of the reasons for
its conduct,’ ’’ and that another reason
was the complainant’s protected
activity. See Klopfenstein v. PCC Flow
Techs. Holdings, Inc., ARB No. 04–149,
2006 WL 3246904, at *13 (ARB May 31,
2006) (quoting 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).
The statutory 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. Rather, they
simply provide that the Secretary may
find a violation only ‘‘if the complainant
demonstrates’’ that protected activity
was a contributing factor in the alleged
adverse action. See 15 U.S.C.
2087(b)(2)(B)(iii). It is the Secretary’s
position that the complainant must
prove by a ‘‘preponderance of the
evidence’’ that his or her protected
activity contributed to the adverse
action; otherwise the burden never
shifts to the respondent 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 ‘demonstrates’
[under identical language in another
whistleblower provision] 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 respondent can escape
liability only by proving by clear and
convincing evidence that it would have
taken the same action even in the

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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 18C also incorporates the
authorities in the FLSA sections 9 and
11, 29 U.S.C. 209 and 211, to issue
subpoenas and conduct investigations.
Such authorities under section 18C are
delegated and assigned to the Assistant
Secretary for Occupational Safety and
Health. See Secretary’s Order 1–2012
(Jan. 18, 2012), 77 FR 3912 (Jan. 25,
2012).
Section 1984.105 Issuance of Findings
and Preliminary Orders
This section provides that, on the
basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, the
Assistant Secretary will order
appropriate relief, including
preliminary reinstatement, affirmative
action to abate the violation, back pay
with interest, and compensatory
damages. 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 an award of attorney’s fees not
exceeding $1,000 from the ALJ,
regardless of whether the respondent
has filed objections, if the respondent
alleges that the complaint was frivolous
or brought in bad faith. If no objections
are filed within 30 days of receipt of the
findings, the findings and any
preliminary order of the Assistant
Secretary become the final decision and
order of the Secretary. If objections are
timely filed, any order of preliminary
reinstatement will take effect, but the
remaining provisions of the order will
not take effect until administrative
proceedings are completed.
In ordering interest on back pay under
section 18C, the Secretary has
determined that interest due will be
computed by compounding daily the
Internal Revenue Service 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
believes that daily compounding of
interest achieves the make-whole
purpose of a back pay award. Daily

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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 Hosp. Corp. v.
United Steel, Paper & Forestry, Rubber,
Mfg., Energy, Allied Indus. & Serv.
Workers Int’l Union, 356 NLRB No. 8,
2010 WL 4318371, at *3–4 (NLRB 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).
In appropriate circumstances, in lieu
of preliminary reinstatement, OSHA
may order that the complainant receive
the same pay and benefits that he or she
received prior to his termination, but
not actually return to work. Such
‘‘economic reinstatement’’ is akin to an
order for front pay and frequently is
employed in cases arising under section
105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 815(c),
which protects miners from retaliation.
See, e.g., Sec’y of Labor ex rel. York v.
BR&D Enters., Inc., 23 FMSHRC 697,
2001 WL 1806020, at *1 (ALJ June 26,
2001). Front pay has been recognized as
a possible remedy in cases under the
whistleblower statutes enforced by
OSHA in circumstances where
reinstatement would not be appropriate.
See, e.g., Moder v. Vill. of Jackson, ARB
Nos. 01–095, 02–039, 2003 WL
21499864, at *10 (ARB June 30, 2003)
(under environmental whistleblower
statutes, ‘‘front pay may be an
appropriate substitute when the parties
prove the impossibility of a productive
and amicable working relationship, or
the company no longer has a position
for which the complainant is
qualified’’); 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. Dep’t 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); Doyle v. Hydro Nuclear
Servs., ARB Nos. 99–041, 99–042, 00–
012, 1996 WL 518592, at *6 (ARB Sept.
6, 1996) (under ERA, front pay
appropriate where employer had
eliminated the employee’s position);
Michaud v. BSP Transport, Inc., ARB
Nos. 97–113, 1997 WL 626849, at *4
(ARB Oct. 9, 1997) (under the Surface
Transportation Assistance Act, 49
U.S.C. 31105, front pay appropriate
where employee was unable to work
due to major depression resulting from
the retaliation); Brown v. Lockheed
Martin Corp., ALJ No. 2008–SOX–49,

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2010 WL 2054426, at *55–56 (ALJ Jan.
15, 2010) (noting that while
reinstatement is the ‘‘presumptive
remedy’’ under Sarbanes-Oxley, front
pay may be awarded as a substitute
when reinstatement is inappropriate).
Congress intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of section 18C of
the FLSA. When a violation is found,
the norm is for OSHA to order
immediate preliminary reinstatement.
Neither an employer nor an employee
has a statutory right to choose economic
reinstatement. Rather, economic
reinstatement is designed to
accommodate situations in which
evidence establishes to OSHA’s
satisfaction that 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 1984.106 Objections to the
Findings and the Preliminary Order and
Requests for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor, within 30 days of
receipt of the findings. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal is
considered the date of the filing; if the
objection is filed in person, by handdelivery 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 U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards, the
failure to serve copies of the objections
on the other parties of record does not
affect the ALJ’s jurisdiction to hear and
decide the merits of the case. See
Shirani v. Calvert Cliffs Nuclear Power

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Plant, Inc., ARB No. 04–101, 2005 WL
2865915, at *7 (ARB Oct. 31, 2005).
The timely filing of objections stays
all provisions of the preliminary order,
except for the portion requiring
reinstatement. A respondent may file a
motion to stay OSHA’s preliminary
order of reinstatement with the Office of
Administrative Law Judges. However,
such a motion will be granted only
based on exceptional circumstances.
The Secretary believes that a stay of the
Assistant Secretary’s preliminary order
of reinstatement under section 18C of
the FLSA would be appropriate only
where the respondent can establish the
necessary criteria for equitable
injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a
balancing of possible harms to the
parties, and the public interest favors a
stay. If no timely objection to OSHA’s
findings and/or preliminary order is
filed, then OSHA’s findings and/or
preliminary order become the final
decision of the Secretary not subject to
judicial review.
Section 1984.107 Hearings
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
provides for hearings to be consolidated
if both the complainant and respondent
object to the findings and/or order of the
Assistant Secretary. This section
provides 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. As noted in this section,
formal rules of evidence will not apply,
but rules or principles designed to
assure production of the most probative
evidence will be applied. The ALJ may
exclude evidence that is immaterial,
irrelevant, or unduly repetitious.
Section 1984.108 Role of Federal
Agencies
The Assistant Secretary, at his or her
discretion, may participate as a party or
amicus curiae at any time in the
administrative proceedings under
section 18C of the FLSA. 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

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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. The Internal Revenue Service
of the United States Department of the
Treasury, the United States Department
of Health and Human Services, and the
Employee Benefits Security
Administration of the United States
Department of Labor, if interested in a
proceeding, also may participate as
amicus curiae at any time in the
proceedings.
Section 1984.109 Decision and Orders
of the Administrative Law Judge
This section sets forth the
requirements for the content of the
decision and order of the ALJ, and
includes the standard for finding a
violation under section 18C. Paragraph
(c) of this section further provides that
the Assistant Secretary’s determination
to dismiss the complaint without an
investigation or without a complete
investigation under section 1984.104 is
not subject to review. Thus, section
1984.109(c) clarifies that the Assistant
Secretary’s determinations on whether
to proceed with an investigation under
section 18C and whether to make
particular investigative findings are
discretionary decisions not subject to
review by the ALJ. The ALJ hears cases
de novo and, therefore, as a general
matter, may not remand cases to the
Assistant Secretary to conduct an
investigation or make further factual
findings. A full discussion of the
burdens of proof used by the
Department of Labor to resolve
whistleblower cases under this part is
described above in the discussion of
section 1984.104. Paragraph (d) notes
the remedies that the ALJ may order
under section 18C and, as discussed
under section 1984.105 above, provides
that interest on back pay will be
calculated using the interest rate
applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be
compounded daily. Paragraph (e)
requires that the ALJ’s decision be
served on all parties to the proceeding,
the Assistant Secretary, and the U.S.
Department of Labor’s Associate
Solicitor for Fair Labor Standards.
Paragraph (e) also provides that any ALJ
decision requiring reinstatement or
lifting an order of reinstatement by the
Assistant Secretary will be effective
immediately upon receipt of the
decision by the respondent. All other

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portions of the ALJ’s order will be
effective 14 days after the date of the
decision unless a timely petition for
review has been filed with the ARB. 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.
Section 1984.110 Decision and Orders
of the Administrative Review Board
Upon the issuance of the ALJ’s
decision, the parties have 14 days
within which to petition the ARB for
review of that decision. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal is
considered the date of filing of the
petition; if the petition is filed in
person, by hand delivery or other
means, the petition is considered filed
upon receipt.
The appeal provisions in this part
provide that an appeal to the ARB is not
a matter of right but is accepted at the
discretion of the ARB. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. The ARB has 30
days to decide whether to grant the
petition for review. If the ARB does not
grant the petition, the decision of the
ALJ becomes the final decision of the
Secretary. If a timely petition for review
is filed with the ARB, any relief ordered
by the ALJ, except for that portion
ordering reinstatement, is inoperative
while the matter is pending before the
ARB. When the ARB accepts a petition
for review, the ALJ’s factual
determinations will be reviewed under
the substantial evidence standard.
This section also provides that, based
on exceptional circumstances, the ARB
may grant a motion to stay an ALJ’s
preliminary order of reinstatement
under section 18C, which otherwise
would be effective, while review is
conducted by the ARB. The Secretary
believes that a stay of an ALJ’s
preliminary order of reinstatement
under section 18C would be appropriate
only where the respondent can establish
the necessary criteria for equitable
injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a
balancing of possible harms to the
parties, and the public interest favors a
stay.
If the ARB concludes that the
respondent has violated the law, it will
issue a final order providing relief to the
complainant. The final order will
require, where appropriate: Affirmative
action to abate the violation;
reinstatement of the complainant to his
or her former position, together with the

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compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. 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. If the ARB
determines that the respondent has not
violated the law, an order will be issued
denying the complaint. If, upon the
request of the respondent, the ARB
determines that a complaint was
frivolous or was brought in bad faith,
the ARB may award to the respondent
a reasonable attorney’s fee, not
exceeding $1,000.
Subpart C—Miscellaneous Provisions.
Section 1984.111 Withdrawal of
Complaints, Findings, Objections, and
Petitions for Review; Settlement
This section provides the procedures
and time periods for withdrawal of
complaints, the withdrawal of findings
and/or preliminary orders by the
Assistant Secretary, and the withdrawal
of objections to findings and/or orders.
It permits complainants to withdraw
their complaints orally and provides
that, in such circumstances, OSHA will
confirm a complainant’s desire to
withdraw in writing. It also provides for
approval of settlements at the
investigative and adjudicative stages of
the case.
Section 1984.112 Judicial Review
This section describes the statutory
provisions of CPSIA, incorporated into
section 18C of the FLSA, for judicial
review of decisions of the Secretary and
requires, in cases where judicial review
is sought, the ARB to submit the record
of proceedings to the appropriate court
pursuant to the rules of such court.
Section 1984.113 Judicial Enforcement
This section describes the Secretary’s
authority under section 18C to obtain
judicial enforcement of orders and the
terms of settlement agreements. Section
18C incorporates the procedures,
notifications, burdens of proof,
remedies, and statutes of limitations set
forth in CPSIA, 15 U.S.C. 2087(b),
which expressly authorizes district
courts to enforce orders, including
preliminary orders of reinstatement,
issued by the Secretary. See 15 U.S.C.
2087(b)(6) (‘‘Whenever any person has
failed to comply with an order issued
under paragraph (3), the Secretary may

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13229

file a civil action in the United States
district court for the district in which
the violation was found to occur, or in
the United States district court for the
District of Columbia, to enforce such
order.’’). Specifically, reinstatement
orders issued at the close of OSHA’s
investigation are immediately
enforceable in district court pursuant to
15 U.S.C. 2087(b)(6) and (7). Section
18C of the FLSA provides, through
CPSIA, that the Secretary shall order the
person who has committed a violation
to reinstate the complainant to his or
her former position. See 15 U.S.C.
2087(b)(3)(B)(ii). Section 18C of the
FLSA also provides, through CPSIA,
that the Secretary shall accompany any
reasonable cause finding that a violation
occurred with a preliminary order
containing the relief prescribed by
subsection (b)(3)(B) of CPSIA, which
includes reinstatement where
appropriate, and that any preliminary
order of reinstatement shall not be
stayed upon the filing of objections. See
15 U.S.C. 2087(b)(2)(A) (‘‘The filing of
such objections shall not operate to stay
any reinstatement remedy contained in
the preliminary order.’’). Thus, under
section 18C of the FLSA enforceable
orders include preliminary orders that
contain the relief of reinstatement
prescribed by 15 U.S.C. 2087(b)(3)(B).
This statutory interpretation is
consistent with the Secretary’s
interpretation of similar language in the
Wendell H. Ford Aviation Investment
and Reform Act for the 21st Century and
Sarbanes-Oxley. See Brief for the
Intervenor/Plaintiff-Appellee Secretary
of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 (6th Cir.
2010); Solis v. Tenn. Commerce
Bancorp, Inc., 713 F. Supp. 2d 701
(M.D. Tenn. 2010); but see Bechtel v.
Competitive Techs., 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)). Also through
application of CPSIA, section 18C of the
FLSA permits the person on whose
behalf the order was issued to obtain
judicial enforcement of the order. See 15
U.S.C. 2087(b)(7).
Section 1984.114 District Court
Jurisdiction of Retaliation Complaints
This section sets forth provisions that
allow a complainant to bring an original
de novo action in district court, alleging
the same allegations contained in the
complaint filed with OSHA, under
certain circumstances. By incorporating
the procedures, notifications, burdens of
proof, remedies, and statutes of
limitations set forth in CPSIA, 15 U.S.C.

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2087(b), section 18C permits a
complainant to file an action for de
novo review in the appropriate district
court if there has been no final decision
of the Secretary within 210 days of the
filing of the complaint, or within 90
days after receiving a written
determination. ‘‘Written determination’’
refers to the Assistant Secretary’s
written findings issued at the close of
OSHA’s investigation under section
1984.105(a). 15 U.S.C. 2087(b)(4). The
Secretary’s final decision is generally
the decision of the ARB issued under
section 1984.110. In other words, a
complainant may file an action for de
novo review in the appropriate district
court in either of the following two
circumstances: (1) A complainant may
file a de novo action in district court
within 90 days of receiving the
Assistant Secretary’s written findings
issued under section 1984.105(a), or (2)
a complainant may file a de novo action
in district court if more than 210 days
have passed since the filing of the
complaint and the Secretary has not
issued a final decision. The plain
language of 15 U.S.C. 2087(b)(4), by
distinguishing between actions that can
be brought if the Secretary has not
issued a ‘‘final decision’’ within 210
days and actions that can be brought
within 90 days after a ‘‘written
determination,’’ supports allowing de
novo actions in district court under
either of the circumstances described
above. However, it is the Secretary’s
position that complainants may not
initiate an action in federal court after
the Secretary issues a final decision,
even if the date of the final decision is
more than 210 days after the filing of the
complaint or within 90 days of the
complainant’s receipt of the Assistant
Secretary’s written findings. 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. See 15 U.S.C.
2087(b)(5)(B) (providing that an order
with respect to which review could
have been obtained in [the court of
appeals] shall not be subject to judicial
review in any criminal or other civil
proceeding).
Under section 18C of the FLSA, the
Assistant Secretary’s written findings
become the final order of the Secretary,
not subject to judicial review, if no

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objection is filed within 30 days. See 15
U.S.C. 2087(b)(2). Thus, a complainant
may need to file timely objections to the
Assistant Secretary’s findings in order to
preserve the right to file an action in
district court.
This section also requires that, within
seven days after filing a complaint in
district court, a complainant must
provide a file-stamped copy of the
complaint 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
OSHA official who issued the findings
and/or preliminary order, the Assistant
Secretary, and the U.S. Department of
Labor’s Associate Solicitor for Fair
Labor Standards. 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. The
section also incorporates the statutory
provisions which allow for a jury trial
at the request of either party in a district
court action, and which specify the
remedies and burdens of proof in a
district court action.
Section 1984.115 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 section
18C of the FLSA requires.
IV. Paperwork Reduction Act
This rule contains a reporting
provision (filing a retaliation complaint,
section 1984.103) which was previously
reviewed as a statutory requirement of
section 18C of the FLSA, 29 U.S.C.
218C, and approved for use by the
Office of Management and Budget
(‘‘OMB’’), and was assigned OMB
control number 1218–0236 under the
provisions of the Paperwork Reduction
Act of 1995, Public Law 104–13, 109
Stat. 163 (1995). A non-material change
has been submitted to OMB to include
the regulatory citation.
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

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practice.’’ 5 U.S.C. 553(b)(A). This is a
rule of agency procedure, practice and
interpretation 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, the Agency is 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 and interpretative 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 Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Office of Management and Budget
has concluded that this rule is a
‘‘significant regulatory action’’ within
the meaning of section 3(f)(4) of
Executive Order 12866. Executive Order
12866, reaffirmed by Executive Order
13563, requires a full economic impact
analysis only for ‘‘economically
significant’’ rules, which are defined in
section 3(f)(1) of Executive Order 12866
as rules that may ‘‘[h]ave an annual
effect on the economy of $100 million
or more or adversely affect in a material
way the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities.’’ Because
the rule is procedural and interpretative
in nature, it is expected to have a
negligible economic impact. Therefore,
no economic impact analysis has been
prepared. For the same reason, the rule
does not require a section 202 statement
under the Unfunded Mandates Reform
Act of 1995. 2 U.S.C. 1531 et seq.
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

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1984.114 District court jurisdiction of
retaliation complaints.
1984.115 Special circumstances; waiver of
rules.

therefore is not subject to Executive
Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that
the regulation will not have a significant
economic impact on a substantial
number of small entities. The regulation
simply implements procedures
necessitated by enactment of section
18C of the FLSA. Furthermore, no
certification to this effect is required
and no regulatory flexibility analysis is
required because no proposed rule has
been issued.
List of Subjects in 29 CFR Part 1984
Administrative practice and
procedure, Employment, Health care,
Investigations, Reporting and
recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of David
Michaels, Ph.D., MPH, Assistant
Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC, on February 13,
2013.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1984 is added
to read as follows:
PART 1984—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER SECTION 1558
OF THE AFFORDABLE CARE ACT

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Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec.
1984.100 Purpose and scope.
1984.101 Definitions.
1984.102 Obligations and prohibited acts.
1984.103 Filing of retaliation complaint.
1984.104 Investigation.
1984.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation
1984.106 Objections to the findings and the
preliminary order and requests for a
hearing.
1984.107 Hearings.
1984.108 Role of Federal agencies.
1984.109 Decision and orders of the
administrative law judge.
1984.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1984.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1984.112 Judicial review.
1984.113 Judicial enforcement.

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Authority: 29 U.S.C. 218C; Secretary’s
Order 1–2012 (Jan. 18, 2012), 77 FR 3912
(Jan. 25, 2012); Secretary’s Order 1–2010 (Jan.
15, 2010), 75 FR 3924 (Jan. 25, 2010).

Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders
§ 1984.100

Purpose and scope.

(a) This part implements procedures
under section 1558 of the Patient
Protection and Affordable Care Act,
Public Law 111–148, 124 Stat. 119,
which was signed into law on March 23,
2010 and was amended by the Health
Care and Education Reconciliation Act
of 2010, Public Law 111–152, 124 Stat.
1029, signed into law on March 30,
2010. The terms ‘‘Affordable Care Act’’
or ‘‘the Act’’ are used in this part to refer
to the final, amended version of the law.
Section 1558 of the Act amended the
Fair Labor Standards Act, 29 U.S.C. 201
et seq. (FLSA) by adding new section
18C. 29 U.S.C. 218C. Section 18C of the
FLSA provides protection for an
employee from retaliation because the
employee has received a credit under
section 36B of the Internal Revenue
Code of 1986, 26 U.S.C. 36B, or a costsharing reduction (referred to as a
‘‘subsidy’’ in section 18C) under the
Affordable Care Act section 1402, 42
U.S.C. 18071, or because the employee
has engaged in protected activity
pertaining to title I of the Affordable
Care Act or any amendment made by
title I of the Affordable Care Act.
(b) This part establishes procedures
under section 18C of the FLSA for the
expeditious handling of retaliation
complaints filed by employees, or by
persons acting on their behalf. These
rules, together with those codified at 29
CFR part 18, set forth the procedures
under section 18C of the FLSA for
submission of complaints,
investigations, issuance of findings and
preliminary orders, objections to
findings and orders, litigation before
administrative law judges (ALJs), posthearing administrative review, and
withdrawals and settlements.
§ 1984.101

Definitions.

As used in this part:
(a) Affordable Care Act or ‘‘the Act’’
means The Patient Protection and
Affordable Care Act, Public Law 111–
148, 124 Stat. 119 (Mar. 23, 2010), as
amended by the Health Care and
Education Reconciliation Act of 2010,
Public Law 111–152.
(b) Assistant Secretary means the
Assistant Secretary of Labor for

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Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under section 18C of
the FLSA.
(c) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(d) Complainant means the employee
who filed an FLSA section 18C
complaint or on whose behalf a
complaint was filed.
(e)(1) Employee means any individual
employed by an employer. In the case
of an individual employed by a public
agency, the term employee means any
individual employed by the
Government of the United States: As a
civilian in the military departments (as
defined in 5 U.S.C. 102), in any
executive agency (as defined in 5 U.S.C.
105), in any unit of the judicial branch
of the Government which has positions
in the competitive service, in a
nonappropriated fund instrumentality
under the jurisdiction of the Armed
Forces, in the Library of Congress, or in
the Government Printing Office. The
term employee also means any
individual employed by the United
States Postal Service or the Postal
Regulatory Commission; and any
individual employed by a State,
political subdivision of a State, or an
interstate governmental agency, other
than an individual who is not subject to
the civil service laws of the State,
political subdivision, or agency which
employs him; and who holds a public
elective office of that State, political
subdivision, or agency, is selected by
the holder of such an office to be a
member of his personal staff, is
appointed by such an officeholder to
serve on a policymaking level, is an
immediate adviser to such an
officeholder with respect to the
constitutional or legal powers of his
office, or is an employee in the
legislative branch or legislative body of
that State, political subdivision, or
agency and is not employed by the
legislative library of such State, political
subdivision, or agency.
(2) The term employee does not
include:
(i) Any individual who volunteers to
perform services for a public agency
which is a State, a political subdivision
of a State, or an interstate governmental
agency, if the individual receives no
compensation or is paid expenses,
reasonable benefits, or a nominal fee to
perform the services for which the
individual volunteered—and such
services are not the same type of
services which the individual is
employed to perform for such public
agency;

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(ii) Any employee of a public agency
which is a State, political subdivision of
a State, or an interstate governmental
agency that volunteers to perform
services for any other State, political
subdivision, or interstate governmental
agency, including a State, political
subdivision or agency with which the
employing State, political subdivision,
or agency has a mutual aid agreement;
or
(iii) Any individual who volunteers
their services solely for humanitarian
purposes to private non-profit food
banks and who receive groceries from
the food banks.
(3) The term employee includes
former employees and applicants for
employment.
(f) Employer includes any person
acting directly or indirectly in the
interest of an employer in relation to an
employee and includes a public agency,
but does not include any labor
organization (other than when acting as
an employer) or anyone acting in the
capacity of officer or agent of such labor
organization.
(g) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(h) Person means an individual,
partnership, association, corporation,
business trust, legal representative, or
any organized group of persons.
(i) Respondent means the employer
named in the complaint who is alleged
to have violated the Act.
(j) Secretary means the Secretary of
Labor or person to whom authority
under the Affordable Care Act has been
delegated.
(k) 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.

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§ 1984.102
acts.

Obligations and prohibited

(a) No employer may discharge or
otherwise retaliate against, including,
but not limited to, intimidating,
threatening, restraining, coercing,
blacklisting or disciplining, any
employee with respect to the
employee’s compensation, terms,
conditions, or privileges of employment
because the employee (or an individual
acting at the request of the employee),
has engaged in any of the activities
specified in paragraphs (b)(1) through
(5) of this section.
(b) An employee is protected against
retaliation because the employee (or an
individual acting at the request of the
employee) has:
(1) Received a credit under section
36B of the Internal Revenue Code of
1986, 26 U.S.C. 36B, or a subsidy under

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section 1402 of the Affordable Care Act,
42 U.S.C. 18071;
(2) Provided, caused to be provided,
or is about to provide or cause to be
provided to the employer, the Federal
Government, or the attorney general of
a State information relating to any
violation of, or any act or omission the
employee reasonably believes to be a
violation of, any provision of title I of
the Affordable Care Act (or an
amendment made by title I of the
Affordable Care Act);
(3) Testified or is about to testify in a
proceeding concerning such violation;
(4) Assisted or participated, or is
about to assist or participate, in such a
proceeding; or
(5) Objected to, or refused to
participate in, any activity, policy,
practice, or assigned task that the
employee (or other such person)
reasonably believed to be in violation of
any provision of title I of the Affordable
Care Act (or amendment), or any order,
rule, regulation, standard, or ban under
title I of the Affordable Care Act (or
amendment).
§ 1984.103

Filing of retaliation complaint.

(a) Who may file. An employee who
believes that he or she has been
retaliated against in violation of section
18C of the FLSA may file, or have filed
by any person on the employee’s behalf,
a complaint alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
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 section 18C
of the FLSA occurs, any employee who
believes that he or she has been
retaliated against in violation of that
section may file, or have filed by any
person on the employee’s behalf, a
complaint alleging such retaliation. The
date of the postmark, facsimile
transmittal, electronic communication
transmittal, 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

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complaint may be tolled for reasons
warranted by applicable case law.
§ 1984.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, the Assistant
Secretary will notify the respondent of
the filing of the complaint, of the
allegations contained in the complaint,
and of the substance of the evidence
supporting the complaint. Such
materials will be redacted, if necessary,
in accordance with the Privacy Act of
1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. The
Assistant Secretary will also notify the
respondent of its rights under
paragraphs (b) and (f) of this section and
paragraph (e) of § 1984.110. The
Assistant Secretary will provide an
unredacted copy of these same materials
to the complainant (or complainant’s
legal counsel if complainant is
represented by counsel) and to the
appropriate office of the Federal agency
charged with the administration of the
general provisions of the Affordable
Care Act under which the complaint is
filed: Either the Internal Revenue
Service of the United States Department
of the Treasury (IRS), the United States
Department of Health and Human
Services (HHS), or the Employee
Benefits Security Administration of the
United States Department of Labor
(EBSA).
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent and the
complainant each may submit to the
Assistant Secretary a written statement
and any affidavits or documents
substantiating its position. Within the
same 20 days, the respondent and the
complainant each 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

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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
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give
rise to an inference that the respondent
knew or suspected that the employee
engaged in protected activity and that
the protected activity was a contributing
factor in the adverse action. The burden
may be satisfied, for example, if the
complaint shows that the adverse action
took place shortly after the protected
activity, giving rise to the inference that
it was a contributing factor in the
adverse action. If the required showing
has not been made, the complainant (or
the complainant’s legal counsel, if
complainant is represented by counsel)
will be so notified and the investigation
will not commence.
(4) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint will not
be conducted or will be discontinued if
the respondent 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

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in § 1984.105, 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 section 18C
of the FLSA 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 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 must present this evidence
within 10 business days of the Assistant
Secretary’s notification pursuant to this
paragraph, or as soon thereafter as the
Assistant Secretary and the respondent
can agree, if the interests of justice so
require.
§ 1984.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
will issue, within 60 days of the filing
of the complaint, written findings as to
whether or not there is reasonable cause
to believe that the respondent has
retaliated against the complainant in
violation of section 18C of the FLSA.
(1) If the Assistant Secretary
concludes that there is reasonable cause
to believe that a violation has occurred,
the Assistant Secretary will accompany
the findings with a preliminary order
providing relief to the complainant. The
preliminary order will require, where
appropriate: Affirmative action to abate
the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and

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13233

interest), terms, conditions and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. 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 ALJ, regardless of whether the
respondent has filed objections, if
respondent alleges that the complaint
was frivolous or brought in bad faith.
The findings and, where appropriate,
the preliminary order also will give the
address of the Chief Administrative Law
Judge, U.S. Department of Labor. At the
same time, the Assistant Secretary will
file with the Chief Administrative Law
Judge a copy of the original complaint
and a copy of the findings and/or order.
(c) The findings and any preliminary
order will be effective 30 days after
receipt by the respondent (or the
respondent’s legal counsel if the
respondent is represented by counsel),
or on the compliance date set forth in
the preliminary order, whichever is
later, unless an objection and/or a
request for hearing has been timely filed
as provided at § 1984.106. 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
§ 1984.106 Objections to the findings and
the preliminary order and requests for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and/or preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith

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who seeks an award of attorney’s fees
under section 18C of the FLSA, 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
§ 1984.105. 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
electronic communication transmittal is
considered the date of filing; if the
objection is filed in person, by hand
delivery or other means, the objection is
filed upon receipt. Objections must be
filed with the Chief Administrative Law
Judge, U.S. Department of Labor, and
copies of the objections must be mailed
at the same time to the other parties of
record, the OSHA official who issued
the findings and order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.
(b) If a timely objection is filed, all
provisions of the preliminary order will
be stayed, except for the portion
requiring preliminary reinstatement,
which will not be automatically stayed.
The portion of the preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s
receipt of the findings and preliminary
order, regardless of any objections to the
order. The respondent may file a motion
with the Office of Administrative Law
Judges for a stay of the Assistant
Secretary’s preliminary order of
reinstatement, which shall be granted
only based on exceptional
circumstances. If no timely objection is
filed with respect to either the findings
or the preliminary order, the findings
and/or the preliminary order will
become the final decision of the
Secretary, not subject to judicial review.

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§ 1984.107

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative
hearings before the Office of
Administrative Law Judges, codified at
subpart A 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

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novo on the record. ALJs have broad
discretion to limit discovery in order to
expedite the hearing.
(c) If both the complainant and the
respondent object to the findings and/or
order, the objections will be
consolidated and a single hearing will
be conducted.
(d) Formal rules of evidence will not
apply, but rules or principles designed
to assure production of the most
probative evidence will be applied. The
ALJ may exclude evidence that is
immaterial, irrelevant, or unduly
repetitious.
§ 1984.108

Role of Federal agencies.

(a)(1) The complainant and the
respondent will be parties in every
proceeding and must be served with
copies of all documents in the case. At
the Assistant Secretary’s discretion, the
Assistant Secretary may participate as a
party or as amicus curiae at any time at
any stage of the proceeding. This right
to participate includes, but is not
limited to, the right to petition for
review of a decision of an ALJ,
including a decision approving or
rejecting a settlement agreement
between the complainant and the
respondent.
(2) Copies of documents must be sent
to the Assistant Secretary, and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of the
Assistant Secretary, or where the
Assistant Secretary is participating in
the proceeding, or where service on the
Assistant Secretary and the Associate
Solicitor is otherwise required by these
rules.
(b) The IRS, HHS, and EBSA, if
interested in a proceeding, may
participate as amicus curiae at any time
in the proceeding, at those agencies’
discretion. At the request of the
interested Federal agency, copies of all
documents in a case must be sent to the
Federal agency, whether or not the
agency is participating in the
proceeding.
§ 1984.109 Decision and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,
conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.

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(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 § 1984.104(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 ALJ
will issue an order that will require,
where appropriate: Affirmative action to
abate the violation; reinstatement of the
complainant to his or her former
position, together with the
compensation (including back pay and
interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. 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 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 ALJ 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 14 days
after the date of the decision unless a
timely petition for review has been filed
with the Administrative Review Board
(ARB), U.S. Department of Labor. The

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decision of the ALJ will become the
final order of the Secretary unless a
petition for review is timely filed with
the ARB and the ARB accepts the
petition for review.

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§ 1984.110 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 ARB, which
has been delegated the authority to act
for the Secretary and issue final
decisions under this part. The parties
should identify in their petitions for
review the legal conclusions or orders to
which they object, or the objections may
be deemed waived. A petition must be
filed within 14 days of the date of the
decision of the ALJ. The date of the
postmark, facsimile transmittal, or
electronic communication transmittal
will be considered to be the date of
filing; if the petition is filed in person,
by hand delivery or other means, the
petition is considered filed upon
receipt. The petition must be served on
all parties and on the Chief
Administrative Law Judge at the time it
is filed with the ARB. Copies of the
petition for review must be served on
the Assistant Secretary, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
(b) If a timely petition for review is
filed pursuant to paragraph (a) of this
section, the decision of the ALJ will
become the final order of the Secretary
unless the ARB, within 30 days of the
filing of the petition, issues an order
notifying the parties that the case has
been accepted for review. If a case is
accepted for review, the decision of the
ALJ will be inoperative unless and until
the ARB issues an order adopting the
decision, except that any order of
reinstatement will be effective while
review is conducted by the ARB, unless
the ARB grants a motion by the
respondent to stay that order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for
review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB will
be issued within 120 days of the

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conclusion of the hearing, which will be
deemed to be 14 days after the date of
the decision of the ALJ, unless a motion
for reconsideration has been filed with
the ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s final decision will be
served upon all parties and the Chief
Administrative Law Judge by mail. The
final decision will also be served on the
Assistant Secretary, and on the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, even if the Assistant Secretary is
not a party.
(d) If the ARB concludes that the
respondent has violated the law, the
ARB will issue a final order providing
relief to the complainant. The final
order will require, where appropriate:
Affirmative action to abate the violation;
reinstatement of the complainant to the
complainant’s former position, together
with the compensation (including back
pay and interest), terms, conditions, and
privileges of the complainant’s
employment; and payment of
compensatory damages, including, at
the request of the complainant, the
aggregate amount of all costs and
expenses (including attorney’s and
expert witness fees) reasonably
incurred. 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.
Subpart C—Miscellaneous Provisions
§ 1984.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.

(a) At any time prior to the filing of
objections to the Assistant Secretary’s
findings and/or preliminary order, a
complainant may withdraw his or her
complaint by notifying 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

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13235

withdrawn because of settlement, the
settlement must be submitted for
approval in accordance with paragraph
(d) of this section. A complainant may
not withdraw his or her complaint after
the filing of objections to the Assistant
Secretary’s findings and/or preliminary
order.
(b) The Assistant Secretary may
withdraw the findings and/or
preliminary order at any time before the
expiration of the 30-day objection
period described in § 1984.106,
provided that no objection has been
filed yet, and substitute new findings
and/or a new preliminary order. The
date of the receipt of the substituted
findings or order will begin a new 30day objection period.
(c) At any time before the Assistant
Secretary’s findings and/or order
become final, a party may withdraw
objections to the Assistant Secretary’s
findings and/or order by filing a written
withdrawal with the ALJ. If the case is
on review with the ARB, a party may
withdraw a petition for review of an
ALJ’s decision at any time before that
decision becomes final by filing a
written withdrawal with the ARB. The
ALJ or the ARB, as the case may be, will
determine whether to approve the
withdrawal of the objections or the
petition for review. If the ALJ approves
a request to withdraw objections to the
Assistant Secretary’s findings and/or
order, and there are no other pending
objections, the Assistant Secretary’s
findings and/or order will become the
final order of the Secretary. If the ARB
approves a request to withdraw a
petition for review of an ALJ decision,
and there are no other pending petitions
for review of that decision, the ALJ’s
decision will become the final order of
the Secretary. If objections or a petition
for review are withdrawn because of
settlement, the settlement must be
submitted for approval in accordance
with paragraph (d) of this section.
(d)(1) Investigative settlements. At any
time after the filing of a complaint, and
before the findings and/or order are
objected to or become a final order by
operation of law, the case may be settled
if 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 the Assistant
Secretary’s consent and achieves the
consent of all three parties.
(2) Adjudicatory settlements. At any
time after the filing of objections to the
Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is

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approved by the ALJ if the case is before
the ALJ, or by the ARB if the ARB has
accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB, as 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 in
United States district court pursuant to
§ 1984.113.
§ 1984.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1984.109 and
1984.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order is not subject to
judicial review in any criminal or other
civil proceeding.
(c) If a timely petition for review is
filed, the record of a case, including the
record of proceedings before the ALJ,
will be transmitted by the ARB or the
ALJ, as the case may be, to the
appropriate court pursuant to the
Federal Rules of Appellate Procedure
and the local rules of such court.
§ 1984.113

Judicial enforcement.

Whenever any person has failed to
comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under section 18C of the FLSA,
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. The
Secretary also may file a civil action
seeking enforcement of the order in the
United States district court for the
District of Columbia.

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§ 1984.114 District court jurisdiction of
retaliation complaints.

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§ 1984.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of these
rules, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three- days notice to
all parties, waive any rule or issue such
orders that justice or the administration
of section 18C of the FLSA requires.
[FR Doc. 2013–04329 Filed 2–22–13; 11:15 am]
BILLING CODE 4510–26–P

DEPARTMENT OF DEFENSE
Office of the Secretary

(a) 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,
either:
(1) Within 90 days after receiving a
written determination under
§ 1984.105(a) provided that there has
been no final decision of the Secretary;
or
(2) If there has been no final decision
of the Secretary within 210 days of the
filing of the complaint.

VerDate Mar<15>2010

(3) At the request of either party, the
action shall be tried by the court with
a jury.
(b) A proceeding under paragraph (a)
of this section shall be governed by the
same legal burdens of proof specified in
section 1984.109. The court shall have
jurisdiction to grant all relief necessary
to make the employee whole, including
injunctive relief and compensatory
damages, including:
(1) Reinstatement with the same
seniority status that the employee
would have had, but for the discharge
or discrimination;
(2) The amount of back pay, with
interest; and
(3) Compensation for any special
damages sustained as a result of the
discharge or discrimination, including
litigation costs, expert witness fees, and
reasonable attorney fees.
(c) Within seven days after filing a
complaint in federal court, a
complainant must file with 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 OSHA official
who issued the findings and/or
preliminary order, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor.

32 CFR Part 199
[DOD–2009–HA–0038]
RIN 0720–AB50

TRICARE: Smoking Cessation
Program
Office of the Secretary,
Department of Defense.
ACTION: Final rule.
AGENCY:

SUMMARY: This final rule implements
Section 713 of the Duncan Hunter
National Defense Authorization Act

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(NDAA) for Fiscal Year 2009. Section
713 states the Secretary shall establish
a smoking cessation program under the
TRICARE program. The smoking
cessation program under TRICARE
shall, at a minimum, include the
following: The availability, at no cost to
the beneficiary, of pharmaceuticals used
for smoking cessation, with the
limitation on the availability of such
pharmaceuticals to the mail-order
pharmacy program under the TRICARE
program; smoking cessation counseling;
access to a toll-free quit line 24 hours a
day, 7 days a week; access to print and
Internet web-based tobacco cessation
material. Per the statute, Medicareeligible beneficiaries are excluded from
the TRICARE smoking cessation
program.
DATES: Effective Date: This final rule is
effective March 29, 2013.
FOR FURTHER INFORMATION CONTACT: Ms.
Ginnean Quisenberry, Population
Health, Medical Management, and
Patient Centered Medical Home
Division, Office of the Chief Medical
Officer, TRICARE Management Activity,
telephone (703) 681–6717.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Final Rule
The purpose of this final rule is to
implement the provisions of the Duncan
Hunter NDAA for FY 2009 (Pub. L. 110–
417) that establishes a smoking
cessation program under the TRICARE
program. Establishment of the TRICARE
smoking cessation program attempts to
reduce the number of TRICARE
beneficiaries who are nicotine
dependent, thereby improving the
health of the TRICARE beneficiary
population and reducing Department of
Defense costs, in particular those related
to the adverse effects of smoking. The
legal authority for the Final Rule is
Section 713 of the Duncan Hunter
NDAA FY09 (Pub. L. 110–417).
B. Summary of the Major Provisions of
the Final Rule
Section 713 of the Duncan Hunter
NDAA for FY 2009 stipulates the
following key features for inclusion in
the TRICARE smoking cessation
program:
1. The availability, at no cost to the
beneficiary, of pharmaceuticals used for
smoking cessation, with a limitation on
the availability of such pharmaceuticals
to the national mail-order pharmacy
program under the TRICARE program if
appropriate.
Smoking cessation medications will
be covered by TRICARE through the
Mail Order Pharmacy program, as well

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27FER1