29 CFR 1980.103 (SOX final rule 80 FR 11865)

Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations
Dated: February 27, 2015.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
[FR Doc. 2015–05085 Filed 3–4–15; 8:45 am]
BILLING CODE 3510–33–P

DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 895
Banned Devices
CFR Correction
In Title 21 of the Code of Federal
Regulations, Parts 800 to 1299, revised
as of April 1, 2014, on page 594, in
§ 895.21, remove the undesignated
paragraph following paragraph (d)(8).
[FR Doc. 2015–05028 Filed 3–4–15; 08:45 am]
BILLING CODE 1505–01D

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

Procedures for the Handling of
Retaliation Complaints Under Section
806 of the Sarbanes-Oxley Act of 2002,
as Amended
Occupational Safety and Health
Administration, Labor.
ACTION: Final rule.
AGENCY:

This document provides the
final text of regulations governing
employee protection (retaliation or
whistleblower) claims under section 806
of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of
the Sarbanes-Oxley Act of 2002
(Sarbanes-Oxley or Act), which was
amended by sections 922 and 929A of
the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (DoddFrank), enacted on July 21, 2010. An
interim final rule (IFR) governing these
provisions and request for comment was
published in the Federal Register on
November 3, 2011. Five comments were
received. This rule responds to those
comments and establishes the final
procedures and time frames for the
handling of retaliation complaints under
Sarbanes-Oxley, including procedures
and time frames for employee
complaints to the Occupational Safety

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SUMMARY:

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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 of Labor’s final decision. It
also sets forth the Secretary of Labor’s
interpretations of the Sarbanes-Oxley
whistleblower provision on certain
matters.
DATES: This final rule is effective on
March 5, 2015.
FOR FURTHER INFORMATION CONTACT:
Brian Broecker, Directorate of
Whistleblower Protection Programs,
Occupational Safety and Health
Administration, U.S. Department of
Labor, Room N–4624, 200 Constitution
Avenue NW., Washington, DC 20210;
telephone (202) 693–2199; email:
[email protected]. This is not a tollfree number. This Federal Register
publication is available in alternative
formats. The alternative formats
available are large print, electronic file
on computer disk (Word Perfect, ASCII,
Mates with Duxbury Braille System) and
audiotape.
SUPPLEMENTARY INFORMATION:
I. Background
Sarbanes-Oxley was first enacted on
July 30, 2002. Title VIII is designated as
the Corporate and Criminal Fraud
Accountability Act of 2002. Section 806,
codified at 18 U.S.C. 1514A, is the
‘‘whistleblower provision,’’ which
provides protection to employees
against retaliation by certain persons
covered under the Act for engaging in
specified protected activity. The Act
generally was designed to protect
investors by ensuring corporate
responsibility, enhancing public
disclosure, and improving the quality
and transparency of financial reporting
and auditing. The whistleblower
provision is intended to protect
employees who report fraudulent
activity and violations of Securities
Exchange Commission (SEC) rules and
regulations that can harm innocent
investors in publicly traded companies.
Dodd-Frank amended the SarbanesOxley whistleblower provision, 18
U.S.C. 1514A. The regulatory revisions
described herein reflect these statutory
amendments and also seek to clarify and
improve OSHA’s procedures for
handling Sarbanes-Oxley whistleblower
claims, as well as to set forth OSHA’s
interpretations of the Act. To the extent
possible within the bounds of
applicable statutory language, these

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11865

revised regulations are designed to be
consistent with the procedures applied
to claims under other whistleblower
statutes administered by OSHA,
including the Surface Transportation
Assistance Act of 1982 (STAA), 29 CFR
part 1978; the National Transit Systems
Security Act (NTSSA) and the Federal
Railroad Safety Act (FRSA), 29 CFR part
1982; the Consumer Product Safety
Improvement Act of 2008 (CPSIA), 29
CFR part 1983; the Employee Protection
Provisions of Six Environmental
Statutes and Section 211 of the Energy
Reorganization Act of 1974, as
amended, 29 CFR part 24; the
Affordable Care Act (ACA), 29 CFR part
1984; the Consumer Financial
Protection Act (CFPA), 29 CFR part
1985; the Seaman’s Protection Act
(SPA), 29 CFR part 1986; and the FDA
Food Safety Modernization Act (FSMA),
29 CFR part 1987.
II. Summary of Statutory Procedures
and Statutory Changes to the SarbanesOxley Whistleblower Provision
Sarbanes-Oxley’s whistleblower
provision, as amended by Dodd-Frank,
includes procedures that allow a
covered employee to file a complaint
with the Secretary of Labor (Secretary) 1
not later than 180 days after the alleged
retaliation or after the employee learns
of the alleged retaliation. SarbanesOxley further provides that the rules
and procedures set forth in the Wendell
H. Ford Aviation Investment and
Reform Act for the 21st Century
(AIR21), 49 U.S.C. 42121(b), govern in
Sarbanes-Oxley actions. 18 U.S.C.
1514A(b)(2)(A). Accordingly, 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
respondent an opportunity to submit a
1 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 Sarbanes-Oxley.
Responsibility for receiving and investigating
complaints under Sarbanes-Oxley has been
delegated to the Assistant Secretary for
Occupational Safety and Health. Secretary of
Labor’s Order No. 01–2012 (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 administrative law judges are decided
by the ARB. Secretary of Labor’s Order 2–2012 (Oct.
19, 2012), 77 FR 69378 (Nov. 16, 2012).

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response and meet with the investigator
to present statements from witnesses,
and conduct an investigation.
The statute provides that the
Secretary may conduct an investigation
only if the complainant has made a
prima facie showing that the protected
activity was a contributing factor in the
adverse action alleged in the complaint
and the respondent has not
demonstrated, through clear and
convincing evidence, that the employer
would have taken the same adverse
action in the absence of that activity (see
Section 1980.104 for a summary of the
investigation process). OSHA interprets
the prima facie case requirement as
allowing the complainant to meet this
burden through the complaint as
supplemented by interviews of the
complainant.
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 which includes all
relief necessary to make the employee
whole, including, where appropriate:
Reinstatement with the same seniority
status that the employee would have
had but for the retaliation; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees.
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 Sarbanes-Oxley 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, Sarbanes-Oxley
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, will order all
relief necessary to make the employee
whole, including, where appropriate:
reinstatement of the complainant to his

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or her former position together with the
same seniority status the complainant
would have had but for the retaliation;
payment of back pay with interest; and
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees.
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.
Sarbanes-Oxley 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 180 days after
the filing of the complaint and there is
no showing that such delay is due to the
bad faith of the complainant. 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.
Dodd-Frank, enacted on July 21, 2010,
amended the Sarbanes-Oxley
whistleblower provision to make several
substantive changes. First, section
922(b) of Dodd-Frank added protection
for employees from retaliation by
nationally recognized statistical rating
organizations (as defined in section 3(a)
of the Securities Exchange Act of 1934
(15 U.S.C. 78c)) or their officers,
employees, contractors, subcontractors,
and agents.2 Second, as noted above,
section 922(c) of Dodd-Frank extended
the statutory filing period for retaliation
complaints under Sarbanes-Oxley from
90 days to 180 days after the date on
which the violation occurs or after the
date on which the employee became
aware of the violation. Section 922(c) of
Dodd-Frank also provided parties with
a right to a jury trial in district court
actions brought under Sarbanes-Oxley’s
‘‘kick-out’’ provision, 18 U.S.C.
1514A(b)(1)(B), which provides that, if
the Secretary has not issued a final
2 Section 3(a) of the Securities Exchange Act of
1934 defines a nationally recognized statistical
ratings organization as a credit rating agency that
issues credit ratings certified by qualified
institutional buyers, in accordance with 15 U.S.C.
78o–7(a)(1)(B)(ix), with respect to: financial
institutions, brokers, or dealers; insurance
companies; corporate issuers; issuers of assetbacked securities (as that term is defined in section
1101(c) of part 229 of title 17, Code of Federal
Regulations, as in effect on September 29, 2006);
issuers of government securities, municipal
securities, or securities issued by a foreign
government; or a combination of one or more
categories of obligors described in any of clauses (i)
through (v); and is registered under 15 U.S.C. 78o–
7 (15 U.S.C. 78c(a)(62)).

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decision within 180 days of the filing of
the complaint and there is no showing
that there has been delay due to the bad
faith of the complainant, the
complainant may bring an action at law
or equity for de novo review in the
appropriate district court of the United
States, which will have jurisdiction over
such action without regard to the
amount in controversy. Third, section
922(c) amended Sarbanes-Oxley to state
that the rights and remedies provided
for in 18 U.S.C. 1514A may not be
waived by any agreement, policy form,
or condition of employment, including
by a pre-dispute arbitration agreement,
and to provide that no pre-dispute
arbitration agreement shall be valid or
enforceable if the agreement requires
arbitration of a dispute arising under
this section.
In addition, section 929A of DoddFrank clarified that companies covered
by the Sarbanes-Oxley whistleblower
provision include any company with a
class of securities registered under
section 12 of the Securities Exchange
Act of 1934 (15 U.S.C. 78l), or that is
required to file reports under section
15(d) of the Securities Exchange Act of
1934 (15 U.S.C. 78o(d)) including any
subsidiary or affiliate whose financial
information is included in the
consolidated financial statements of
such company. As explained in Johnson
v. Siemens Building Technologies, Inc.,
ARB No. 08–032, 2011 WL 1247202, at
*11 (Mar. 31, 2011), section 929A
merely clarified that subsidiaries and
affiliates are covered under the
Sarbanes-Oxley whistleblower
provision. Section 929A applies to all
cases currently pending before the
Secretary.
III. Summary of Regulations and
Rulemaking Proceedings
On November 3, 2011, OSHA
published in the Federal Register an
IFR revising rules governing the
whistleblower provisions of Section 806
of Sarbanes-Oxley. 76 FR 68084. OSHA
included a request for public comment
on the interim rules by January 3, 2012.
In response, four organizations and
one individual filed comments with
OSHA within the public comment
period. Comments were received from
Mr. Hunter Levi; the National
Whistleblower Center (NWC); Katz,
Marshall & Banks, LLP (Marshall); the
Equal Employment Advisory Council
(EEAC); and the Society of Corporate
Secretaries & Governance Professionals
(SCSGP).
OSHA has reviewed and considered
the comments and now adopts this final
rule with minor revisions. The
following discussion addresses the

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comments, OSHA’s responses, and any
other changes to the provisions of the
rule. The provisions in the IFR are
adopted and continued in this final rule,
unless otherwise noted below.
General Comments
Marshall commented that ‘‘in large
part, the rules simply effectuate changes
made by [Dodd-Frank] and are rather
modest in scope,’’ and wrote in support
of several changes made in the IFR.
Marshall stated that Congress enacted
Sarbanes-Oxley whistleblower
provisions to ensure that employees
could raise concerns about potentially
harmful fraud on shareholders and
others without fear of retaliation. In
response to anticipated comments that
the rules ‘‘will make pursuing a SOX
whistleblower claim far less daunting,’’
Marshall noted, ‘‘why should OSHA
procedures make pursuing a
whistleblower complaint daunting for
an employee in a procedural sense?’’
(emphasis in original). Marshall
explained, ‘‘If the purpose of SOX
whistleblower protections is to
encourage and facilitate the timely
reporting of financial fraud that can
cause tremendous harm to the public
good, the administrative process should
be as accessible as possible.’’ Marshall
also commented on specific provisions
of the rule; those comments are
addressed below.
SCSGP noted that Section 806 of
Sarbanes-Oxley provides
whistleblowers with broad protection
against retaliation, and its safeguards
were enhanced by the enactment of
Dodd-Frank. SCSGP also pointed to
recent ARB case law and other
provisions of Dodd-Frank that provide
expanded whistleblower protections.
SCSGP commented that these
developments ‘‘underscore the need to
ensure that employers are provided
adequate due process in the context of
DOL’s administration of Section 806
complaints.’’ SCSGP comments then
focused on four aspects of the IFR that
SCSGP considers are ‘‘unauthorized by
statute, imbalanced, and unduly
prejudicial to employers’ reasonable
interests.’’ Those specific comments and
provisions are discussed in detail
below.
Mr. Levi asserted his belief that the
IFR contained ‘‘new provisions that
violate the intent of Congress, ignore
longstanding precedent concerning the
authority of the Secretary, and seek to
create a bogus legal exception to SOX
Section 802, [18 U.S.C. 1519]; which
deals with the criminal obstruction of
SOX in government proceedings.’’ Mr.
Levi also asserted his belief that the
revisions to which he objects violate the

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rights of Sarbanes-Oxley complainants
and increase the risk of employer
securities fraud. Mr. Levi’s comments
additionally addressed two specific
portions of the IFR Federal Register
notice: Section 1980.112 and the
preamble discussion of Section
1980.114. OSHA has addressed Mr.
Levi’s comments in the discussion of
the specific provisions below.
EEAC commented that the IFR
accurately reflected the changes made
by Dodd-Frank, and commended OSHA
for this effort. EEAC further submitted
that many of the additional changes
incorporated in the IFR, for purposes of
clarification and improvement of the
procedures, were not directed by DoddFrank. EEAC respectfully submitted that
many of these changes ‘‘seem
intentionally designed to make it easier
for claimants to file and prosecute, and
more difficult for respondents to
defend,’’ Sarbanes-Oxley whistleblower
complaints. EEAC then commented on
several specific provisions of the rule,
and those comments are addressed
below.
NWC, in support of its various
suggested revisions, discussed the
overall remedial purpose of the
Sarbanes-Oxley whistleblower
provisions, as well as the employee
protection provisions of various other
statutes that OSHA enforces. NWC also
commented specifically on several
provisions of the IFR, which are
discussed below.
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Section 1980.100

Purpose and Scope

This section describes the purpose of
the regulations implementing SarbanesOxley and provides an overview of the
procedures covered by these
regulations. No comments were received
on this section. However, OSHA has
added a statement in subparagraph (b)
noting that these rules reflect the
Secretary’s interpretations of the Act.
Section 1980.101

Definitions

This section includes general
definitions applicable to SarbanesOxley’s whistleblower provision. The
interim final rule updated and revised
this section in light of Dodd-Frank’s
amendments to Sarbanes-Oxley. In
March 2014, the Supreme Court issued
its decision in Lawson v. FMR LLC, 134
S. Ct. 1158 (2014), in which it affirmed
the Department’s view that protected
employees under Sarbanes-Oxley’s
whistleblower provision include
employees of contractors to public
companies. No changes have been made
to the definition of ‘‘employee’’ in this

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11867

rule, as the interim final rule’s
definition of ‘‘employee’’ is consistent
with the Supreme Court’s decision. No
comments were received on this section
of the interim final rule and no changes
have been made to this section.
Section 1980.102 Obligations and
Prohibited Acts
This section describes the activities
that are protected under Sarbanes-Oxley
and the conduct that is prohibited in
response to any protected activities.
The final rule, like the interim final
rule, provides that an employee is
protected against retaliation by a
covered person for any lawful act done
by the employee:
(1) To provide information, cause
information to be provided, or otherwise
assist in an investigation regarding any
conduct which the employee reasonably
believes constitutes a violation of 18
U.S.C. 1341 (mail fraud), 1343 (wire
fraud), 1344 (bank fraud), or 1348
(securities fraud), any rule or regulation
of the Securities and Exchange
Commission, or any provision of
Federal law relating to fraud against
shareholders, when the information or
assistance is provided to or the
investigation is conducted by—
(i) A Federal regulatory or law
enforcement agency;
(ii) Any Member of Congress or any
committee of Congress; or
(iii) A person with supervisory
authority over the employee (or such
other person working for the employer
who has the authority to investigate,
discover, or terminate misconduct); or
(2) To file, cause to be filed, testify,
participate in, or otherwise assist in a
proceeding filed or about to be filed
(with any knowledge of the employer)
relating to an alleged violation of 18
U.S.C. 1341, 1343, 1344, or 1348, any
rule or regulation of the Securities and
Exchange Commission, or any provision
of Federal law relating to fraud against
shareholders.
In order to have a ‘‘reasonable belief’’
under Sarbanes-Oxley, a complainant
must have both a subjective, good faith
belief and an objectively reasonable
belief that the complained-of conduct
violates one of the enumerated
categories of law. See Lockheed Martin
Corp. v. ARB, 717 F.3d 1121, 1132 (10th
Cir. 2013); Wiest v. Lynch, 710 F.3d 121,
131–32 (3d Cir. 2013); Sylvester v.
Parexel Int’l LLC, ARB No. 07–123, 2011
WL 2165854, at *12 (ARB May 25,
2011). 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 Sylvester, 2011 WL

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2165854, at *12 (citing Harp v. Charter
Commc’ns, 558 F.3d 722, 723 (7th Cir.
2009)); Day v. Staples, Inc., 555 F.3d 42,
54 n.10 (1st Cir. 2009) (quoting Welch v.
Chao, 536 F.3d 269, 277 n.4 (4th Cir.
2008) (‘‘Subjective reasonableness
requires that the employee ‘actually
believed the conduct complained of
constituted a violation of pertinent
law.’ ’’)). ‘‘[T]he legislative history of
Sarbanes-Oxley makes clear that its
protections were ‘intended to include
all good faith and reasonable reporting
of fraud, and there should be no
presumption that reporting is
otherwise.’ ’’ Sylvester, 2011 WL
2165854, at *11 (quoting Van Asdale v.
Int’l Game Tech., 577 F.3d 989, 1002
(9th Cir. 2009) (citing 148 Cong. Rec.
S7418–01, S7420 (daily ed. July 26,
2002))).
The objective ‘‘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.’’ Sylvester, 2011
WL 2165854, at *12 (internal quotation
marks and citation omitted); Harp, 558
F.3d at 723. 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 or is likely to occur. See
Sylvester, 2011 WL 2165854, at *13
(citing Welch, 536 F.3d at 277); Allen v.
Admin. Rev. Bd., 514 F.3d 468, 476–77
(5th Cir. 2008); Melendez v. Exxon
Chemicals Americas, ARB No. 96–051,
slip op. at 21 (ARB July 14, 2000) (‘‘It
is also well established that the
protection afforded whistleblowers who
raise concerns regarding statutory
violations is contingent on meeting the
aforementioned ‘reasonable belief’
standard rather than proving that actual
violations have occurred.’’).
NWC commented on this section and
suggested that an additional paragraph
be added to this section, addressing the
question of extraterritorial application
of Section 806 of Sarbanes-Oxley. At the
time of its comment, this question was
before the ARB for consideration. NWC
noted that because the issue of
extraterritorial application was pending,
the Department of Labor (Department)
could ‘‘facilitate determination of these
issues by making a few clarifications in
the regulations.’’ NWC suggested OSHA
add a paragraph 29 CFR 1980.102(c),
that provides as follows: ‘‘(c) The
employee protections of the Act shall
have the same extraterritorial

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application as the Securities Exchange
Act, including the Foreign Corrupt
Practices Act (FCPA), 15 U.S.C. 78dd1.’’ However, since the writing of the
comment, the ARB has issued its
decision on this question, holding that
‘‘Section 806(a)(1) does not allow for its
extraterritorial application.’’ Villanueva
v. Core Laboratories NV, No. 09–108,
2011 WL 7021145, at *9 (ARB Dec. 22,
2011), affirmed on other grounds,
Villanueva v. U.S. Dep’t of Labor, 743
F.3d 103 (5th Cir. 2014). The ARB’s
decision in Villanueva provides the
Secretary’s views on the extraterritorial
application of the SOX whistleblower
provision and OSHA therefore declines
to include NWC’s suggested paragraph
on this issue. No other comments were
received on this section and no changes
have been made to it.
Section 1980.103 Filing of Retaliation
Complaints
This section explains the
requirements for filing a retaliation
complaint under Sarbanes-Oxley. The
Dodd-Frank 2010 statutory amendments
changed the statute of limitations for
filing a complaint from 90 to 180 days
after the date on which the violation
occurs, or after the date on which the
employee became aware of the
violation. This change was reflected in
the IFR and is continued here.
Therefore, to be timely, a complaint
must be filed within 180 days of when
the alleged violation occurs, or after the
date on which the employee became
aware of the violation. Under Delaware
State College v. Ricks, 449 U.S. 250, 258
(1980), the time of the alleged violation
is considered to be when the retaliatory
decision has been both made and
communicated to the complainant. The
time for filing a complaint under
Sarbanes-Oxley may be tolled for
reasons warranted by applicable case
law. For example, OSHA may consider
the time for filing a Sarbanes-Oxley
complaint equitably tolled if the
complainant mistakenly files a
complaint with another agency instead
of OSHA within 180 days after
becoming aware of the alleged violation.
EEAC expressed its support for this
revision.
The IFR also amended Section
1980.103(b) to change the requirement
that whistleblower complaints to OSHA
under Sarbanes-Oxley ‘‘must be in
writing and should include a full
statement of the acts and omissions,
with pertinent dates, which are believed
to constitute the violations.’’ Consistent
with OSHA’s procedural rules under
other whistleblower statutes, complaints
filed under Sarbanes-Oxley now need
not be in any particular form. They may

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be either oral or in writing. When a
complaint is made orally, OSHA will
reduce the complaint to writing. If a
complainant is not able to file the
complaint in English, the complaint
may be filed in any language. With the
consent of the employee, complaints
may be filed by any person on the
employee’s behalf. As noted below,
several comments were received on this
section of the interim final rule. No
changes have been made in response to
the comments. However, the term
‘‘email’’ in paragraph (d) has been
changed to ‘‘electronic communication
transmittal’’ because OSHA has
published an on-line complaint form on
its Web site, http://www.whistleblowers.
gov/complaint_page.html.
SCSGP commented that it is ‘‘very
concerned that the proposed ‘oral
complaint’ provision will have
unintended negative consequences, and
[it] urge[s] OSHA not to enact it.’’
SCSGP further commented that the new
rule is ‘‘unnecessary because SOX
complaints most often are filed by
sophisticated professionals,’’ and that
the rule shifts the OSHA investigator’s
role from one of a neutral fact-finder to
an advocate for the complainant. SCSGP
also commented that the rule lacks any
standard for the investigator’s creation
of the complaint. SCSGP also raised the
concern that the new rule ‘‘presents the
risk that the complainant will later treat
the investigator as an adverse witness in
the litigation.’’ SCSGP explained that in
cases where a complainant who
proceeds to further stages of the
administrative proceeding, or a
complainant who transfers their case to
federal district court, may seek to
modify or expand their original
complaint by arguing that the OSHA
investigator did not accurately record
the complainant’s allegations at the time
of the initial complaint. SCSGP
explained this could place the
investigator in the role of an adverse
witness and subject him or her to
scrutiny for failing to capture the oral
complaint in totality.
Similarly, EEAC commented that it
questioned the ‘‘rationale of eliminating
the requirement that a written
complaint contain the full details
concerning the alleged violation.’’ EEAC
commented that written complaints
emphasize the gravity of invoking
protection under Sarbanes-Oxley and
discourage frivolous complaints. The
EEAC also commented on the provision
that complaints may be made in any
language, stating that ‘‘[t]he agency
offers no guidance on by whom, if at all,
the complaint will be translated into
English’’ nor how a respondent may
submit its own proposed translation.

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations
EEAC respectfully recommended that
this final rule make clear how these
issues would be resolved. Conversely,
Marshall wrote in support of these
revisions.
OSHA has considered these
comments and adopts the changes made
in the IFR. The statutory text of SOX
does not require written complaints to
OSHA. See 29 U.S.C. 1514A(b)(1)(A).
Further, as Marshall noted in his
comment, ‘‘[m]aking it clear that OSHA
can accept oral complaints is better
described as a clarification than as an
amendment to existing procedures.’’
Indeed, the Department has long
permitted oral complaints under the
environmental statutes. See, e.g.,
Roberts v. Rivas Environmental
Consultants, Inc., ARB No. 97–026,
1997 WL 578330, at *3 n.6 (ARB Sept.
17, 1997) (complainant’s oral statement
to an OSHA investigator, and the
subsequent preparation of an internal
memorandum by that investigator
summarizing the oral complaint,
satisfies the ‘‘in writing’’ requirement of
CERCLA, 42 U.S.C. 9610(b), and the
Department’s accompanying regulations
in 29 CFR part 24); Dartey v. Zack Co.
of Chicago, No. 1982–ERA–2, 1983 WL
189787, at *3 n.1 (Sec’y of Labor Apr.
25, 1983) (adopting administrative law
judge’s findings that complainant’s
filing of a complaint to the wrong DOL
office did not render the filing invalid
and that the agency’s memorandum of
the complaint satisfied the ‘‘in writing’’
requirement of the Energy
Reorganization Act (‘‘ERA’’) and the
Department’s accompanying regulations
in 29 CFR part 24). Moreover, accepting
oral complaints under Sarbanes-Oxley is
consistent with OSHA’s longstanding
practice of accepting oral complaints
filed under Section 11(c) of the
Occupational Safety and Health Act of
1970, 29 U.S.C. 660(c); Section 211 of
the Asbestos Hazard Emergency
Response Act of 1986, 15 U.S.C. 2651;
Section 7 of the International Safe
Container Act of 1977, 46 U.S.C. 80507;
and STAA, 49 U.S.C. 31105. This
change also accords with the Supreme
Court’s decision in Kasten v. SaintGobain Performance Plastics Corp., in
which the Court held that the antiretaliation provision of the Fair Labor
Standards Act, which prohibits
employers from discharging or
otherwise discriminating against an
employee because such employee has
‘‘filed any complaint,’’ protects
employees’ oral complaints of violations
of the Fair Labor Standards Act. 563
U.S. ll, 131 S. Ct. 1325 (2011).
Furthermore, OSHA believes that its
acceptance of oral complaints under
Sarbanes-Oxley is most consistent with

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the ARB’s decisions in Sylvester and
Evans v. U.S. Environmental Protection
Agency, ARB No. 08–059 (ARB Jul. 31,
2012). In Sylvester, noting that OSHA
does not require complaints under
Sarbanes-Oxley to be in any form and
that under 29 CFR 1980.104(b) OSHA
has a duty, if appropriate, to interview
the complainant to supplement the
complaint, the ARB held that the federal
court pleading standards established in
Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009) do not apply to
Sarbanes-Oxley whistleblower
complaints filed with OSHA. 2011 WL
2165854, at *9–10. In Evans, the ARB
articulated the legal standard for
analyzing the sufficiency of a
whistleblower complaint brought before
an ALJ. The ARB held that the
whistleblower complaint need only give
‘‘fair notice’’ of the protected activity
and adverse action to withstand a
motion to dismiss for failure to state a
claim. ARB No. 08–059, slip op. at *9.
Furthermore, the ARB instructed that an
ALJ should not act on a motion to
dismiss for failure to state a claim until
it is clear that the complainant has filed
a document that articulates the claims
presented to the OALJ for hearing
following OSHA’s findings. Id., at *8.
Complaints filed with OSHA under this
section are simply ‘‘informal documents
that initiate an investigation into
allegations of unlawful retaliation in
violation of the [Act].’’ Id., at *7.
Permitting a complainant to file a
complaint orally or in writing or in any
language is consistent with the purpose
of the complaint filed with OSHA,
which is to trigger an investigation
regarding whether there is reasonable
cause to believe that retaliation
occurred.
Furthermore, upon receipt of a
complaint, OSHA must provide the
respondent notice of the filing of the
complaint, the allegations contained in
the complaint, and the substance of the
evidence supporting the complaint. 49
U.S.C. 42121(b)(2)(A); 29 CFR
1980.104(a). OSHA may not undertake
an investigation of the complaint unless
the complaint, supplemented as
appropriate by interviews of the
complainant, makes a prima facie
allegation of retaliation. 49 U.S.C.
42121(b)(2)(B); 29 CFR 1980.104(e). If
OSHA commences an investigation, the
respondent has the opportunity to
submit a response to the complaint and
meet with the investigator to present
statements from witnesses. 49 U.S.C.
42121(b)(2)(A); 29 CFR 1980.104(b). To
fulfill these statutory responsibilities,
when OSHA receives an oral complaint,

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OSHA gathers as much information as it
can from the complainant about the
complainant’s allegations so that the
respondent will be able to adequately
respond to the complaint and so that
OSHA may properly determine the
scope of any investigation into the
complaint. OSHA also generally
provides the respondent with a copy of
its memorandum memorializing the
complaint, and the respondent has the
opportunity to request that OSHA
clarify the allegations in the complaint
if necessary.
Regarding SCSGP’s comment that the
investigator may be later called as an
adverse witness in litigation, OSHA
understands this comment to be
implicating the issue of adding untimely
claims or exhaustion of remedies. Under
Section 806, an employee must file a
complaint with OSHA alleging a
violation of this provision and allow
OSHA an opportunity to investigate
before pursuing the claim before an ALJ
or in federal court. 18 U.S.C.
1514A(b)(1)(A). Failure to raise a
particular claim or allegation before
OSHA can result in that claim being
barred in subsequent administrative or
federal court proceedings for failure to
‘‘exhaust administrative remedies.’’ See,
e.g., Willis v. Vie Financial Group, Inc.,
No. Civ. A. 04–435, 2004 WL 1774575
(E.D. Pa. Aug. 6, 2004) (barring a
complainant’s claim because he did not
amend his OSHA complaint to assert
post-complaint retaliation); Carter v.
Champion Bus, Inc., ARB No. 05–076,
slip op. at *9 (ARB Sept. 29, 2006) (the
ARB generally will not consider
arguments or evidence first raised on
appeal); Saporito v. Central Locating
Services, Ltd., ARB No. 05–004, slip op.
at *9 (ARB Feb. 28, 2006) (the ARB was
unwilling to entertain an argument from
the complainant that he had engaged in
certain activity where he had not
presented that theory to the ALJ, and
where the argument was supported by
no ‘‘references to the record, legal
authority or analysis.’’). While a dispute
could arise in a whistleblower
complaint filed orally regarding whether
OSHA properly recorded the allegations
at issue in the complaint and whether
the complainant properly exhausted his
administrative remedies, this possibility
is not new, as OSHA’s historical
practice has been to accept complaints
orally and reduce them to writing and
to supplement complaints with
interviews of the complainant as
necessary. In addition, the possibility
that a dispute could arise regarding the
claims raised to OSHA does not
outweigh the benefits to whistleblowers
and the public of allowing such

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complaints to be filed orally with
OSHA.
In response to EEAC’s comment
regarding OSHA’s acceptance of
complaints in any language, OSHA
believes that its procedures are fair and
ensure the accuracy of the complaint
and evidence submitted to OSHA.
Under current practices for receiving
complaints, OSHA uses professional
interpretive services to communicate
with employees speaking a language
other than English. The OSHA
investigator will reduce the complaint
to writing, in English, as communicated
to him or her through the interpretive
service. Translation services are also
available to interview complainants
throughout an investigation.
Additionally, should the complainant
wish to submit his or her complaint in
another language in writing, or submit
additional documents throughout the
investigation in another language,
OSHA will use document translation
services. Should a respondent wish to
see an original document, as well as any
translation, this information may be
exchanged in accordance with the
procedures and privacy protections set
forth in Section 1980.104 (discussed in
detail below). A respondent then would
be free to submit his or her own
translation of any such document to the
OSHA investigator in accordance with
the investigation procedures set forth in
Section 1980.104.

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Section 1980.104

Investigation

This section describes the procedures
that apply to the investigation of
Sarbanes-Oxley complaints. Paragraph
(a) of this section outlines the
procedures for notifying the parties and
the SEC of the complaint and notifying
respondents of their rights under these
regulations. Paragraph (b) describes the
procedures for the respondent to submit
its response to the complaint. Paragraph
(c) of the IFR specified that OSHA will
provide to the complainant (or the
complainant’s legal counsel if the
complainant is represented by counsel)
a copy of all of respondent’s
submissions to OSHA that are
responsive to the complainant’s
whistleblower complaint at a time
permitting the complainant an
opportunity to respond to those
submissions. Paragraph (c) further
provided that before providing such
materials to the complainant, OSHA
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.

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Paragraph (e) of this section sets forth
the applicable burdens of proof.
Paragraph (f) describes the procedures
OSHA will follow prior to the issuance
of findings and a preliminary order
when OSHA has reasonable cause to
believe that a violation has occurred.
The Sarbanes-Oxley whistleblower
provision mandates that an action under
the Act is governed by the burdens of
proof set forth in AIR21, 49 U.S.C.
42121(b). The statute requires that a
complainant make an initial prima facie
showing that a 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.
Complainant’s burden may be satisfied,
for example, if he or she shows that the
adverse action took place within a
temporal proximity of the protected
activity, or at the first opportunity
available to the respondent, giving rise
to the inference that it was a
contributing factor in the adverse action.
See, e.g., Porter v. Cal. Dep’t of Corr.,
419 F.3d 885, 895 (9th Cir. 2005) (years
between the protected activity and the
retaliatory actions did not defeat a
finding of a causal connection where the
defendant did not have the opportunity
to retaliate until he was given
responsibility for making personnel
decisions).
If the complainant does not make the
prima facie showing, the investigation
must be discontinued and the complaint
dismissed. See Trimmer v. U.S. Dep’t of
Labor, 174 F.3d 1098, 1101 (10th Cir.
1999) (noting that the burden-shifting
framework of the ERA, which is the
same as that under Sarbanes-Oxley,
serves a ‘‘gatekeeping function’’ that
‘‘stem[s] frivolous complaints’’). Even in
cases where the complainant
successfully makes a prima facie
showing, the investigation must be
discontinued if the employer
‘‘demonstrates, by clear and convincing
evidence,’’ that it would have taken the
same adverse action in the absence of
the protected activity. 49 U.S.C.
42121(b)(2)(B)(ii). Thus, OSHA must
dismiss a complaint under SarbanesOxley and not investigate further if
either: (1) The complainant fails to meet
the prima facie showing that protected
activity was a contributing factor in the
adverse action; or (2) the employer

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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 statute requires OSHA to determine
whether there is reasonable cause to
believe that protected activity was a
contributing factor in the alleged
adverse action. A contributing factor is
‘‘any factor which, alone or in
connection with other factors, tends to
affect in any way the outcome of the
decision.’’ Marano v. Dep’t of Justice, 2
F.3d 1137, 1140 (Fed. Cir. 1993)
(Whistleblower Protection Act, 5 U.S.C.
1221(e)(1)); see, e.g., Lockheed Martin
Corp., 717 F.3d at 1136. For protected
activity to be a contributing factor in the
adverse action, ‘‘a complainant need not
necessarily prove that the respondent’s
articulated reason was a pretext in order
to prevail,’’ because a complainant
alternatively can prevail by showing
that the respondent’s ‘‘reason, while
true, is only one of the reasons for its
conduct’’ and that another reason was
the complainant’s protected activity.
See Klopfenstein v. PCC Flow Techs.
Holdings, Inc., No. 04–149, 2006 WL
3246904, at *13 (ARB May 31, 2006)
(citing Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004))
(discussing contributing factor test
under the Sarbanes-Oxley
whistleblower provision), aff’d sub
nom. Klopfenstein v. Admin. Review
Bd., U.S. Dep’t of Labor, 402 F. App’x
936, 2010 WL 4746668 (5th Cir. 2010).
If OSHA finds reasonable cause to
believe that the alleged protected
activity was a contributing factor in the
adverse action, OSHA may not order
relief if the employer demonstrates by
‘‘clear and convincing evidence’’ that it
would have taken the same action in the
absence of the protected activity. See 49
U.S.C. 42121(b)(2)(B)(iv). The ‘‘clear and
convincing evidence’’ standard is a
higher burden of proof than a
‘‘preponderance of the evidence’’
standard. Clear and convincing
evidence is evidence indicating that the
thing to be proved is highly probable or
reasonably certain. Clarke v. Navajo
Express, Inc., No. 09–114, 2011 WL
2614326, at *3 (ARB June 29, 2011)
(discussing burdens of proof under
analogous whistleblower provision in
STAA).
NWC and the EEAC commented on
this section. NWC suggested
clarification of what ‘‘other applicable
confidentiality laws’’ might apply to
redaction of respondent’s submissions,
before providing them to the
complainant. NWC also suggested
several additions and revisions to this

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section, as well as to Section 1980.107,
to further protect the confidentiality of
complainants. NWC pointed to the
confidentiality provisions of Section
922 of the Dodd-Frank Act, creating a
whistleblower program under section
21F of the Securities Exchange Act, 3 as
well as recent developments in the
United States Tax Court, and suggested
that the Department bring its own
confidentiality practices into
conformity.
The EEAC commented that it was
extremely concerned that the
modifications made in this section in
the IFR would increase the amount of
information provided to the
complainant during the investigation
but reduce information provided to the
respondent. As OSHA explained in the
preamble to the IFR, those revisions
were aimed at aiding OSHA’s ability to
conduct a ‘‘full and fair investigation.’’
EEAC submitted that the same logic
supports providing respondents with all
of the information that OSHA receives
from the complainant during the
investigation. Specifically, EEAC
suggested that OSHA retain the former
language in paragraph (a) regarding
notice to the respondent upon receipt of
a complaint, and revise paragraph (c) to
provide that the same information will
be provided to respondents as is
provided to complainants during the
investigation. EEAC also suggested
paragraph (f) include language that if
the complainant submits new
information at this stage, the employer
will be given a copy and the
opportunity to respond before OSHA
makes a final determination on the
complaint.
Regarding NWC’s suggestion that
OSHA provide more specific
information about the confidentiality
laws that may protect portions of the
information submitted by a respondent,
OSHA anticipates that the vast majority
of respondent submissions will not be
subject to any confidentiality laws.
However, in addition to the Privacy Act,
a variety of confidentiality provisions
may protect information submitted
during the course of an investigation.
For example, a respondent may submit
information that the respondent
identifies as confidential commercial or
financial information exempt from
disclosure under the Freedom of
Information Act (FOIA). OSHA’s
3 Section 21F(h)(2)(A) prevents disclosure of
identifying information by the Commission and its
officers, except in accordance with the provisions
of the Privacy Act, unless and until required to be
disclosed to a defendant or respondent in
connection with a public proceeding instituted by
the Commission or any other specified entity. 15
U.S.C. 78u–6(h)(2).

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procedures for handling information
identified as confidential during an
investigation are explained in OSHA’s
Whistleblower Investigations Manual
available at: http://www.osha.gov/pls/
oshaweb/owadisp.show_document?p_
table=DIRECTIVES&p_id=506.
Additionally, OSHA has considered
NWC’s suggestions regarding
complainants’ confidentiality. OSHA
agrees that protecting complainants’
confidentiality and privacy to the extent
possible under the law is essential.
However, OSHA believes that existing
procedures and the Privacy Act of 1974,
5 U.S.C. 552a, et seq., provide sufficient
safeguards. The Whistleblower
Investigations Manual instructs that
while a case is an open investigation,
information contained in the case file
generally may not be disclosed to the
public. Once a case is closed,
complainants continue to be protected
from third party public disclosure under
the Privacy Act. 5 U.S.C. 552a(k)(2).
However, if a case moves to the ALJ
hearing process, it becomes a public
proceeding and the public has a right of
access to information under various
laws and the Constitution. See Newport
v. Calpine Corp., ALJ No. 2007–ERA–
00007, slip op. at *6 (Feb. 12, 2008),
available at http://www.oalj.dol.gov/
PUBLIC/WHISTLEBLOWER/
DECISIONS/ALJ_DECISIONS/ERA/
2007ERA00007A.PDF (discussing
hearings before the ALJ under the
analogous statutory provisions of the
ERA and the public right of access).
Information submitted as evidence
during these proceedings becomes the
exclusive record for the Secretary’s
decision. Public disclosure of the record
for the Secretary’s decision is governed
by the Freedom of Information Act and
the Privacy Act. Id. A party may request
that a record be sealed to prevent
disclosure of such information.
However, the Constitution and various
federal laws cited in Newport govern the
granting of such a motion; OSHA cannot
circumvent these authorities by
rulemaking. See also Thomas v. Pulte
Homes, Inc., ALJ No. 2005–SOX–00009,
slip op. at *2–3 (Aug. 9, 2005) (noting
that in order to prevent disclosure of
such information, a moving party must
request a protective order pursuant to
the OALJ rules of procedure; the
standard for granting such a motion is
high and the burden of making a
showing of good cause rests with the
moving party).
In response to EEAC’s comments and
suggestions, OSHA agrees that
respondents must be afforded fair notice
of the allegations and substance of the
evidence against them. OSHA also
believes that the input of both parties in

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the investigation is important to
ensuring that OSHA reaches the proper
outcome during its investigation. Thus,
in response to EEAC’s comments,
Section 1980.104(a) has been revised to
more closely mirror AIR21’s statutory
requirement, incorporated by SarbanesOxley, in 49 U.S.C. 42121(b)(1) that after
receiving a complaint, the Secretary
shall 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. In response to EEAC’s
comment regarding paragraph (c),
OSHA notes that its current policy is to
request that each party provide the other
parties with a copy of all submissions to
OSHA that are responsive to the
whistleblower complaint. Where the
parties do not so provide, OSHA will
ensure that each party is provided with
such information, redacted as
appropriate. OSHA will also ensure that
each party is provided with an
opportunity to respond to the other
party’s submissions. OSHA has revised
paragraph (c) to clarify these policies
regarding information sharing during
the course of an investigation. Further
information regarding OSHA’s
nonpublic disclosure and information
sharing policies may also be found in
the Whistleblower Investigations
Manual. Regarding EEAC’s suggestion
for paragraph (f), it is already OSHA’s
policy to provide the respondent a
chance to review any additional
evidence on which OSHA intends to
rely that is submitted by the
complainant at this stage and to provide
the respondent an opportunity to
respond to any such additional
evidence. This policy is necessary to
achieve the purpose of paragraph (f),
which is to afford respondent due
process prior to ordering preliminary
reinstatement as required by the
Supreme Court’s decision in Brock v.
Roadway Express, Inc., 481 U.S. 252
(1987). OSHA also notes that the
Whistleblower Investigations Manual
provides guidance to investigators on
sharing information with both parties
throughout the investigation.
OSHA has made additional minor
edits throughout this section to clarify
the applicable procedures and burdens
of proof.
Section 1980.105 Issuance of Findings
and Preliminary Orders
Throughout this section, minor
changes were made as needed to clarify
the provision without changing its
meaning. This section provides that, on
the basis of information obtained in the
investigation, the Assistant Secretary
will issue, within 60 days of the filing

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of a complaint, written findings
regarding whether or not there is
reasonable cause to believe that the
complaint has merit. If the findings are
that there is reasonable cause to believe
that the complaint has merit, in
accordance with the statute, 18 U.S.C.
1514A(c), the Assistant Secretary will
order ‘‘all relief necessary to make the
employee whole,’’ including
preliminary reinstatement, back pay
with interest, and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily. In
the Secretary’s view, 26 U.S.C. 6621
provides the appropriate rate of interest
to ensure that victims of unlawful
retaliation under Sarbanes-Oxley are
made whole. The Secretary has long
applied the interest rate in 26 U.S.C.
6621 to calculate interest on back pay in
whistleblower cases. Doyle v. Hydro
Nuclear Servs., Nos. 99–041, 99–042,
00–012, 2000 WL 694384, at *14–15, 17
(ARB May 17, 2000); see also Cefalu v.
Roadway Express, Inc., ARB Case No.
09–070, 2011 WL 1247212, at *2 (ARB
Mar. 17, 2011); Pollock v. Cont’l
Express, ARB Case Nos. 07–073, 08–
051, 2010 WL 1776974, at *8 (ARB Apr.
10, 2010); Murray v. Air Ride, Inc., ARB
Case No. 00–045, slip op. at 9 (ARB Dec.
29, 2000). Section 6621 provides the
appropriate measure of compensation
under Sarbanes-Oxley and other DOLadministered whistleblower statutes
because it ensures the complainant will
be placed in the same position he or she
would have been in if no unlawful
retaliation occurred. See Ass’t Sec’y v.
Double R. Trucking, Inc., ARB Case No.
99–061, slip op. at 5 (ARB July 16, 1999)
(interest awards pursuant to § 6621 are
mandatory elements of complainant’s
make-whole remedy). Section 6621
provides a reasonably accurate
prediction of market outcomes (which
represents the loss of investment
opportunity by the complainant and the
employer’s benefit from use of the
withheld money) and thus provides the
complainant with appropriate makewhole relief. See EEOC v. Erie Cnty.,
751 F.2d 79, 82 (2d Cir. 1984) (‘‘[s]ince
the goal of a suit under the [Fair Labor
Standards Act] and the Equal Pay Act is
to make whole the victims of the
unlawful underpayment of wages, and
since [§ 6621] has been adopted as a
good indicator of the value of the use of
money, it was well within’’ the district
court’s discretion to calculate

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prejudgment interest under § 6621);
New Horizons for the Retarded, 283
N.L.R.B. No. 181, 1173 (May 28, 1987)
(observing that ‘‘the short-term Federal
rate [used by § 6621] is based on average
market yields on marketable Federal
obligations and is influenced by private
economic market forces’’). Similarly, as
explained in the interim final rule, daily
compounding of the interest award
ensures that complainants are made
whole for unlawful retaliation in
violation of Sarbanes-Oxley. 76 FR
68088.
In ordering back pay, OSHA also will
require the respondent to submit the
appropriate documentation to the Social
Security Administration (SSA)
allocating the back pay to the
appropriate calendar quarters. Requiring
the reporting of back pay allocation to
the SSA serves the remedial purposes of
Sarbanes-Oxley by ensuring that
employees subjected to retaliation are
truly made whole. See Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB
No. 10 (NLRB Aug. 8, 2014). As the
NLRB explained, when back pay is not
properly allocated to the years covered
by the award, a complainant may be
disadvantaged in several ways. First,
improper allocation may interfere with
a complainant’s ability to qualify for any
old-age Social Security benefit. Id. at *3
(‘‘Unless a [complainant’s] multiyear
backpay award is allocated to the
appropriate years, she will not receive
appropriate credit for the entire period
covered by the award, and could
therefore fail to qualify for any old-age
social security benefit.’’). Second,
improper allocation may reduce the
complainant’s eventual monthly benefit.
Id. As the NLRB explained, ‘‘if a
backpay award covering a multi-year
period is posted as income for 1 year,
it may result in SSA treating the
[complainant] as having received wages
in that year in excess of the annual
contribution and benefit base.’’ Id.
Wages above this base are not subject to
Social Security taxes, which reduces the
amount paid on the employee’s behalf.
‘‘As a result, the [complainant’s]
eventual monthly benefit will be
reduced because participants receive a
greater benefit when they have paid
more into the system.’’ Id. Finally,
‘‘social security benefits are calculated
using a progressive formula: although a
participant receives more in benefits
when she pays more into the system, the
rate of return diminishes at higher
annual incomes.’’ Therefore, a
complainant may ‘‘receive a smaller
monthly benefit when a multiyear
award is posted to 1 year rather than
being allocated to the appropriate

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periods, even if social security taxes
were paid on the entire amount.’’ Id.
The purpose of a make-whole remedy
such as back pay is to put the
complainant in the same position the
complainant would have been absent
the prohibited retaliation. That purpose
is not achieved when the complainant
suffers the disadvantages described
above. The Secretary believes that
requiring proper SSA allocation is
necessary to achieve the make-whole
purpose of a back pay award.
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. 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.
The provision that reinstatement
would not be appropriate where the
respondent establishes that the
complainant is a security risk was
removed from 1980.105(a)(1) in the IFR.
OSHA believes that the determination of
whether reinstatement is inappropriate
in a given case is best made on the basis
of the facts of each case and the relevant
case law, and thus it is not necessary in
these procedural rules to define the
circumstances in which reinstatement is
not a proper remedy. This amendment
also makes these procedural regulations
consistent with the rules under STAA,
NTSSA, FRSA, and CPSIA, which do
not contain this statement.
SCSGP, EEAC, and Marshall
commented on this removal, as well as
on the overall guidance provided when
determining whether preliminary
reinstatement is appropriate. SCSGP
commented that the IFR lacked ‘‘any
standards governing the issuance of
preliminary reinstatement orders’’ and
that the rule should contain appropriate
safeguards that preliminary
reinstatement is warranted under the
circumstances, rather than presuming
that reinstatement is proper. SCSGP
suggested that OSHA include in the
final rule a list of non-exhaustive factors
to be considered by the courts to
determine when reinstatement is
appropriate, including whether hostility
exists between the employee and the
company, and whether the employee’s
position no longer exists. EEAC ‘‘urge[d]
OSHA to reinstate this ‘security risk’
exception’’ in the final rule. EEAC also
submitted that OSHA’s reasoning for

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removing the exception is flawed (that
the determination of whether
reinstatement is inappropriate in a given
case should be based on the factual
circumstances of that case). EEAC first
pointed to Sarbanes-Oxley’s
incorporation of the AIR21 rules and
procedures and that the security risk
exception is consistent with OSHA’s
whistleblower regulations promulgated
under AIR21. EEAC also noted that the
security risk exception was predicated
on the respondent establishing that the
complainant is in fact a security risk
prior to the exception taking effect and
thus would be determined on a case-bycase basis in this manner. Marshall
wrote in support of the removal of the
security risk language and supported the
explanation that determinations of
whether reinstatement is appropriate
should be based on the facts of the
particular case. Marshall noted that the
Act itself does not contain any statutory
prohibition of reinstatement under
certain circumstances.
OSHA disagrees that the rule requires
any further guidance on when
preliminary reinstatement is
appropriate. First, OSHA emphasizes
that Congress intended that employees
be preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of SarbanesOxley, thus creating the presumption it
is the appropriate remedy. Neither
Sarbanes-Oxley nor AIR21 specify any
statutorily predetermined circumstances
under which preliminary reinstatement
would be inappropriate. Furthermore,
although the regulations governing
proceedings under AIR21 reference a
security risk exception, this exception is
not in the statutory text incorporated by
Sarbanes-Oxley. See 18 U.S.C.
1514(b)(1)(A) (. . . shall be governed
‘‘under the rules and procedures set
forth in section 42121(b) of title 49,
United States Code.’’). This reference to
AIR21’s statutory procedures does not
impose an obligation for OSHA to also
incorporate any procedural regulations
promulgated under AIR21 not mandated
by the statute.
OSHA agrees that there may be
circumstances where preliminary
reinstatement is inappropriate.
However, OSHA believes that the rule
as drafted provides sufficient safeguards
for these situations, as well as sufficient
guidance to OSHA, ALJs, and the ARB
as to when those safeguards may be
appropriate. First, the rule provides the
ALJ and ARB discretion to grant a stay
of an order of preliminary reinstatement
(See Sections 1980.106(b) and
1980.110(b)). As discussed in detail in
the discussion of Section 1980.106, ALJs

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and the ARB can refer to long-standing
precedential case law in making this
determination. Second, in appropriate
circumstances, OSHA may order
economic reinstatement in lieu of actual
reinstatement, which is also discussed
in detail below. In Hagman v.
Washington Mutual Bank, Inc., the ALJ
delineated several factors to consider
when making this determination. ALJ
No. 2005–SOX–73, 2006 WL 6105301, at
*32 (Dec. 19, 2006) (noting that while
reinstatement is the ‘‘preferred and
presumptive remedy’’ under SarbanesOxley, ‘‘[f]ront pay may be awarded as
a substitute when reinstatement is
inappropriate due to: (1) An employee’s
medical condition that is causally
related to her employer’s retaliatory
action; (2) manifest hostility between
the parties; (3) the fact that claimant’s
former position no longer exists; or (4)
the fact that employer is no longer in
business at the time of the decision’’)
(internal citations omitted). Many of
these factors are similar to the factors
SCSGP suggested be included in the
rule. Thus, given the existing safeguards
in place and sufficient guidance for
when such safeguards are appropriate,
OSHA declines to include the security
risk exception in the final rule and
declines to add additional guidance to
the rule for when preliminary
reinstatement is appropriate.
As mentioned above, in appropriate
circumstances, in lieu of preliminary
reinstatement, OSHA may order that the
complainant receive the same pay and
benefits that he received prior to his
termination, but not actually return to
work. Such ‘‘economic reinstatement’’ is
akin to an order of front pay and is
frequently employed in cases arising
under Section 105(c) of the Federal
Mine Safety and Health Act of 1977,
which protects miners from retaliation.
30 U.S.C. 815(c); see, e.g., Sec’y of Labor
on behalf of York v. BR&D Enters., Inc.,
23 FMSHRC 697, 2001 WL 1806020, at
*1 (June 26, 2001). Front pay has been
recognized as a possible remedy in cases
under Sarbanes-Oxley and other
whistleblower statutes enforced by
OSHA in circumstances where
reinstatement would not be appropriate.
See, e.g., Hagman, 2006 WL 6105301;
Hobby v. Georgia Power Co., ARB Nos.
98–166, 98–169 (ARB Feb. 9, 2001),
aff’d sub nom. Hobby v. U.S. Dept. of
Labor, No. 01–10916 (11th Cir. Sept. 30,
2002) (unpublished) (noting
circumstances where front pay may be
available in lieu of reinstatement but
ordering reinstatement); Brown v.
Lockheed Martin Corp., ALJ No. 2008–
SOX–00049, 2010 WL 2054426, at
*55–56 (ALJ Jan. 15, 2010) (same).

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Congress intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of SarbanesOxley. When a violation is found, the
norm is for OSHA to order immediate
preliminary reinstatement. 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 immediate
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.
SCSGP and Marshall commented on
the issue of economic reinstatement.
Marshall commented that the inclusion
of the above language in the preamble
is of ‘‘crucial significance for
whistleblowers,’’ but continued that
OSHA’s recognition that actual
reinstatement remains the presumptive
remedy is ‘‘essential as well.’’ Marshall
explained that ‘‘[a]ctual reinstatement
protects interests that economic
reinstatement cannot. Nonetheless,
economic reinstatement must be
available as a remedy for situations
where a whistleblower cannot return to
the workplace.’’
SCSGP addressed the issue of
allowing an employer to recover the
costs of economically reinstating an
employee should the employer
ultimately prevail in the whistleblower
adjudication. SCSGP believes OSHA’s
interpretation, that there is no statutory
basis for allowing such reimbursement,
‘‘compromises an employer’s due
process rights’’ and raises other
concerns. SCSGP commented that
conversely there is ‘‘no statutory basis
for allowing the employee to keep the
value of economic reinstatement where
his or her claim is unfounded.’’ SCSGP
noted that in situations where economic
reinstatement is awarded, an employer
may have to pay both the labor cost of
filling the position, and the cost of the
economic reinstatement awarded to the
complainant. Where the employer
ultimately prevails, it would not recover

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the duplicative cost, an outcome which
SCSGP believes is grossly unfair. SCSGP
recommended that OSHA include an
additional paragraph in this section,
allowing that economic reinstatement be
available only upon consent of all
parties, or upon the condition that the
complainant will reimburse the
employer in the event the employer
ultimately prevails.
OSHA disagrees that economic
reinstatement without a mechanism for
reimbursement violates the employer’s
rights under the Due Process clause. The
Supreme Court has addressed the issue
of what is required to afford an
employer procedural due process prior
to ordering preliminary reinstatement in
Brock v. Roadway Express, Inc., 481
U.S. 252 (1987). In Roadway Express,
the Court held that ‘‘minimum due
process for the employer in this context
requires notice of the employee’s
allegations, notice of the substance of
the relevant supporting evidence, an
opportunity to submit a written
response, and an opportunity to meet
with the investigator and present
statements from rebuttal witnesses.’’ Id.
at 264. The Court did not require any
mechanism for reimbursing the
employer for wages paid during actual
preliminary reinstatement should the
employer ultimately prevail in the
litigation. Because economic
reinstatement is akin to actual
reinstatement, OSHA believes the same
requirements apply when ordering
economic reinstatement.
Furthermore, OSHA disagrees that
there is no statutory basis for precluding
reimbursement of economic
reinstatement. As discussed above,
Congress intended that employees be
preliminarily reinstated to their
positions if OSHA finds reasonable
cause to believe that they were
discharged in violation of SarbanesOxley. However, the statutory
procedural scheme does not allow for
reimbursement to the employer if actual
preliminary reinstatement was ordered
and yet the employer ultimately
prevailed. Thus, there is no statutory
basis to reimburse an employer in that
instance. Because economic
reinstatement is a substitute for
preliminary reinstatement, this same
reasoning would apply for not awarding
an employer reimbursement for any
front pay the employee receives should
the employer ultimately prevail. OSHA
therefore declines to allow for such
reimbursement where Congress has not
so provided.

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Subpart B—Litigation
Section 1980.106 Objections to the
Findings and the Preliminary Order and
Request for a Hearing
To be effective, objections to the
findings of the Assistant Secretary must
be in writing and must be filed with the
Chief Administrative Law Judge, U.S.
Department of Labor, 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 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 Plant, Inc., ARB
No. 04–101, 2005 WL 2865915, at *7
(ARB Oct. 31, 2005). Throughout this
section, minor changes were made as
needed to clarify the provision without
changing its meaning.
The IFR revised paragraph (b) to note
that a respondent’s motion to stay the
Assistant Secretary’s preliminary order
of reinstatement will be granted only
based on exceptional circumstances.
This revision clarified that a stay is only
available in ‘‘exceptional
circumstances,’’ because the Secretary
believes that a stay of the Assistant
Secretary’s preliminary order of
reinstatement under Sarbanes-Oxley
would be appropriate only where the
respondent can establish the necessary
criteria for equitable injunctive relief,
i.e., irreparable injury, likelihood of
success on the merits, and a balancing
of possible harms to the parties, and the
public interest favors a stay.
SCSGP, EEAC, and Marshall
commented on this section. Marshall
wrote in support of this revision, noting
that ‘‘[p]reliminary reinstatement
protects a number of important values;
it should be ordered and enforced
unless the respondent is able to make a
credible and persuasive showing that
these values are overwhelmed.’’ SCSGP
and EEAC requested that OSHA provide
additional guidance regarding when a
stay of an order for preliminary
reinstatement would be appropriate.
SCSGP suggested that OSHA modify
paragraph (b) to provide ‘‘meaningful

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standards governing when an ALJ
should stay a preliminary order of
reinstatement.’’ SCSGP’s comment
included concerns that the current
standard, based on ‘‘exceptional
circumstances,’’ may unduly constrain
the ALJ’s discretion and authority, as
well as leave the ALJ without guidance
as to when a stay is appropriate. EEAC
commented that in its view, the term
‘‘‘exceptional circumstances’ implies a
limitation far narrower than OSHA says
that it intends.’’ EEAC recommended
that the language in the preamble
referring to the requirements to obtain
equitable injunctive relief be added to
the regulatory text. EEAC also suggested
this addition to Section 1980.110(b),
which covers appeals to the ARB.
It is well established that the standard
for a stay of preliminary reinstatement
is the standard needed to obtain a
preliminary injunction. A party must
prove: Likely irreparable injury;
likelihood of success on the merits; the
balancing of hardships favors an
injunction; and the public interest
favors an injunction. Johnson v. U.S.
Bancorp, ARB No. 13–014, 2013 WL
2902820, at *2 (ARB May 21, 2013); see
also Evans v. T-Mobil USA, Inc., ALJ
No. 2012–SOX–00036 (ALJ May 21,
2013) (granting stay of reinstatement).
This traditional four-element test is
applied in all federal courts. See Winter
v. N.R.D.C., 555 U.S. 7, 20 (2008). The
Department’s ALJs and ARB have also
applied this standard in a number of
cases prior to the issuance of the IFR.
See, e.g., Welch v. Cardinal Bankshares
Corp., No. 06–062, 2006 WL 3246902
(ARB Mar. 31, 2006); Bechtel and
Jacques v. Competitive Technologies,
Inc., ALJ Nos. 2005–SOX–0033, 2005–
SOX–0034, 2005 WL 4888999 (ALJ Mar.
29, 2005). The regulation and its
preamble, existing ALJ and ARB
decisions, and other federal case law
clearly delineate the standard for a
successful motion to stay a preliminary
order of reinstatement. OSHA thus
declines to provide further guidance on
this issue.
EEAC also commented that there may
be situations in which the complainant
does not desire reinstatement,
preliminary or otherwise. EEAC
suggested the final rule contain
language addressing this situation,
allowing for the parties to come to an
agreement to not order reinstatement.
OSHA declines to include such
language in this rule. Under SarbanesOxley, reinstatement of the complainant
to his or her former position is the
presumptive remedy in merit cases and
is a critical component of making the
complainant whole. As Marshall notes
in his comment, actual reinstatement

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protects interests that economic
reinstatement cannot so effectively
address. For example, reinstatement
serves to reassure other employees
through the complainant’s presence in
the workplace that they too will be
protected from retaliation for reporting
violations of the law. By ordering
preliminary reinstatement in cases
involving discharge where OSHA has
reasonable cause to believe that a
statutory violation has occurred, OSHA
properly places the burden upon the
employer to make a bona fide offer of
reinstatement. In doing so, OSHA also
ensures that the employee is not forced
to make a decision about whether he or
she wants to return to the workplace
until the employer actually makes such
an offer.

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Section 1980.107 Hearings
This section adopts the rules of
practice and procedure for
administrative hearings before the
Office of Administrative Law Judges, as
set forth in 29 CFR part 18 subpart A.
Hearings are 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. ALJs
continue to have broad discretion to
limit discovery where necessary to
expedite the hearing. Formal rules of
evidence will not apply, but rules or
principles designed to assure
production of the most probative
evidence will be applied. The
administrative law judge may exclude
evidence that is immaterial, irrelevant,
or unduly repetitious. Throughout this
section, minor changes were made as
needed to clarify the provision without
changing its meaning.
NWC commented in part on this
section, requesting language be added to
further protect the confidentiality of
complainants. The discussion of the
agency’s consideration of this comment
is included in the discussion of Section
1980.104, above.
Section 1980.108 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
Sarbanes-Oxley. For example, the
Assistant Secretary may exercise his or
her discretion to prosecute the case in
the administrative proceeding before an
ALJ; petition for review of a decision of
an ALJ, including a decision based on
a settlement agreement between the
complainant and the respondent,
regardless of whether the Assistant
Secretary participated before the ALJ; or

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participate as amicus curiae before the
ALJ or in the ARB proceeding. Although
OSHA anticipates that ordinarily the
Assistant Secretary will not participate,
the Assistant Secretary may choose to
do so in appropriate cases, such as cases
involving important or novel legal
issues, multiple employees, alleged
violations that appear egregious, or
where the interests of justice might
require participation by the Assistant
Secretary. The Securities and Exchange
Commission, if interested in a
proceeding, also may participate as
amicus curiae at any time in the
proceedings.
No comments were received on this
section. However, paragraph (a)(2) has
been revised to specify that parties must
send copies of documents to OSHA and
to the Associate Solicitor, Division of
Fair Labor Standards, U.S. Department
of Labor, only upon request of OSHA, or
when OSHA is participating in the
proceeding, or when service on OSHA
and the Associate Solicitor is otherwise
required by these rules. Other minor
changes were made as needed to clarify
the provision without changing its
meaning.
Section 1980.109 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 Sarbanes-Oxley.
Specifically, the complainant must
demonstrate (i.e. prove by a
preponderance of the evidence) that the
protected activity was a ‘‘contributing
factor’’ in the adverse action. See, e.g.,
Allen, 514 F.3d at 475 n.1 (‘‘The term
‘demonstrates’ means to prove by a
preponderance of the evidence.’’). If the
employee demonstrates that the alleged
protected activity was a contributing
factor in the adverse action, the
employer, to escape liability, must
demonstrate by ‘‘clear and convincing
evidence’’ that it would have taken the
same action in the absence of the
protected activity. See id.
Paragraph (c) provides that OSHA’s
determination to dismiss the complaint
without an investigation or without a
complete investigation pursuant to
Section 1980.104 is not subject to
review. Thus, Section 1980.109(c)
clarifies that OSHA’s determinations on
whether to proceed with an
investigation under Sarbanes-Oxley and
whether to make particular investigative
findings are discretionary decisions not
subject to review by the ALJ. The ALJ
hears cases de novo and, therefore, as a
general matter, may not remand cases to
OSHA to conduct an investigation or

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make further factual findings. Paragraph
(c) also clarifies that the ALJ can dispose
of a matter without a hearing if the facts
and circumstances warrant. In its
comments, EEAC expressed support for
this clarification.
Paragraph (d) notes the remedies that
the ALJ may order under the Act and
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 (d) has
been revised to note that when back pay
is ordered, the order will also require
the respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters. 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 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.
No comments were received on this
section. However, the statement that the
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 was deleted from
Section 1980.110(a) and moved to
paragraph (e) of this section.
Additionally, OSHA has revised the
period for filing a timely petition for
review with the ARB to 14 days rather
than 10 business days. With this change,
the final rule expresses the time for a
petition for review in a way that is
consistent with the other deadlines for
filings before the ALJs and the ARB in
the rule, which are also expressed in
days rather than business days. This
change also makes the final rule
congruent with the 2009 amendments to
Rule 6(a) of the Federal Rules of Civil
Procedure and Rule 26(a) of the Federal
Rules of Appellate Procedure, which
govern computation of time before the
federal courts and express filing
deadlines as days rather than business
days. Accordingly, the ALJ’s order will
become the final order of the Secretary
14 days after the date of the decision,
rather than after 10 business days,
unless a timely petition for review is
filed. As a practical matter, this revision
does not substantively alter the window

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of time for filing a petition for review
before the ALJ’s order becomes final.
Other minor changes were made as
needed to clarify the provision without
changing its meaning.

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Section 1980.110 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. If no timely
petition for review is filed with the
ARB, the decision of the ALJ becomes
the final decision of the Secretary and
is not subject to judicial review. The
date of the postmark, facsimile
transmittal, or 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 the Act, 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 Sarbanes-Oxley
would be appropriate only where the
respondent can establish the necessary
criteria for equitable injunctive relief,
i.e., irreparable injury, likelihood of
success on the merits, a balancing of
possible harms to the parties, and the
public interest favors a stay. The EEAC’s
comment regarding guidance on when a
stay of preliminary reinstatement is
appropriate addressed this provision of
the rule, as well Section 1980.106(b).
OSHA’s response to this comment is
explained in detail above, in the
discussion of Section 1980.106.

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If the ARB concludes that the
respondent has violated the law, it will
order the remedies listed in paragraph
(d). 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 (d) has
been revised to note that when back pay
is ordered, the order will also require
the respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters. If the ARB determines that the
respondent has not violated the law, an
order will be issued denying the
complaint.
NWC requested that the agency make
several revisions to this section that
would ‘‘further the goal of deciding
cases on their merits.’’ The requested
revisions included: (1) Change the time
limit for a petition for review from 10
days to 30 days; (2) require that a
petition for review set forth legal issues
showing good cause to allow full
briefing; (3) change the provision that
objections to legal conclusions not
raised in petitions for review ‘‘will
ordinarily’’ be deemed waived, to
‘‘may’’ be deemed waived; and (4)
specify in the regulation that the ARB
may extend the time to submit petitions
for review upon good cause shown.
NWC stated that these revisions would
‘‘advance the remedial purposes of the
Act by lowering the procedural hurdles
to a decision on the merits.’’
OSHA first notes that the IFR did use
the phrase ‘‘may’’ be deemed waived
regarding objections not specifically
raised in a petition for review. This
change was made as a result of
comments submitted by NWC on other
whistleblower rules published by
OSHA. See, e.g., Procedures for the
Handling of Retaliation Complaints
Under Section 219 of the Consumer
Product Safety Improvement Act of
2008, 77 FR 40494, 40500–01 (July 10,
2012); Procedures for the Handling of
Retaliation Complaints Under the
Employee Protection Provision of the
Surface Transportation Assistance Act
of 1982 (STAA), as Amended, 77 FR
44121, 44131–32 (July 27, 2012).
However, OSHA declines to adopt
NWC’s additional suggestions relating to
this section. First, OSHA declines to
extend the time limit to petition for
review because the shorter review
period is consistent with the practices
and procedures followed in OSHA’s
other whistleblower programs.
Furthermore, parties may file a motion
for extension of time to appeal an ALJ’s
decision, and the ARB has discretion to
grant such extensions. However, as

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explained above, OSHA has revised the
period to petition for review of an ALJ
decision to 14 days rather than 10
business days. As a practical matter, this
revision does not substantively alter the
window of time for filing a petition for
review before the ALJ’s order becomes
final. In addition, Section 1980.110(c),
which provides that the ARB will issue
a final decision within 120 days of the
conclusion of the ALJ hearing, was
similarly revised to state that the
conclusion of the ALJ hearing will be
deemed to be 14 days after the date of
the decision of the ALJ, rather than after
10 business days, unless a motion for
reconsideration has been filed with the
ALJ in the interim. Like the revision to
Section 1980.110(a), this revision does
not substantively alter the length of time
before the ALJ hearing will be deemed
to have been concluded.
Finally, OSHA believes that use of the
word ‘‘may,’’ as discussed above,
adequately addresses NWC’s underlying
concern that grounds not raised in a
petition for review may be barred from
consideration before the ARB.
Non-substantive changes were made
to paragraph (c) of this section to clarify
when all hearings before an ALJ are
considered concluded, and thus when
the time for the ARB to issue a final
decision begins to run.
Subpart C—Miscellaneous Provisions
Section 1980.111 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 also provides for approval of
settlements at the investigative and
adjudicative stages of the case. No
comments were received on this section.
Minor changes were made as needed to
this section and section title to clarify
the provision without changing its
meaning.
Section 1980.112

Judicial Review

This section describes the statutory
provisions for judicial review of
decisions of the Secretary and requires,
in cases where judicial review is sought,
that the ARB or the ALJ submit the
record of proceedings to the appropriate
court pursuant to the rules of such
court.
Mr. Levi commented on this section,
stating that paragraph (b) created a new
rule. Paragraph (b) provided, ‘‘A final
order of the ARB is not subject to
judicial review in any criminal or other

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civil proceeding.’’ As explained in the
IFR, no new rules were added to this
section; rather, the section was simply
reorganized and renumbered. The 2004
version of the rule concluded paragraph
(a) with the sentence, ‘‘A final order of
the Board is not subject to judicial
review in any criminal or other civil
proceeding.’’ This sentence
implemented the statutory provision
found at 49 U.S.C. 42121(b)(4)(B),
‘‘Limitation on Collateral Attack,’’
adopted by the Act, which provides,
‘‘[a]n order of the Secretary of Labor
with respect to which review could
have been obtained under subparagraph
(A) shall not be subject to judicial
review in any criminal or other civil
proceeding.’’ This sentence was moved
to be a stand-alone provision in
paragraph (b) of the IFR. The word
‘‘Board’’ was changed to ‘‘ARB;’’
however, both designations refer to the
same body (Administrative Review
Board). The old paragraph (b) was then
renumbered to paragraph (c) in the IFR.
The text of this paragraph was also
slightly revised, as discussed in the
preamble to the IFR, to clarify that
‘‘rules of the court’’ refers to the Federal
Rules of Appellate Procedure and local
rules of the relevant federal court of
appeals. Most of these non-substantive
revisions have been adopted in this final
rule. Paragraph (c) of the final rule has
been revised to provide that ‘‘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.’’ This revision simply
reflects that in some instances the ALJ,
and not the ARB, will have possession
of the record to be reviewed in the U.S.
court of appeals.
However, upon further review of the
statutory language, OSHA has revised
paragraph (b) in the final rule to more
accurately reflect the statutory
provisions found in AIR21, adopted by
Sarbanes-Oxley. The rule as written
previously and in the IFR referred only
to limitation on collateral attack of final
orders of the ARB. AIR21’s limitation on
collateral attacks applies to all final
orders of the Secretary. 49 U.S.C.
42121(b)(4)(A)–(B). Thus, paragraph (b)
has been revised accordingly.
Section 1980.113 Judicial Enforcement
This section describes the Secretary’s
power under Sarbanes-Oxley to obtain
judicial enforcement of orders and the
terms of a settlement agreement. While
some courts have declined to enforce
preliminary orders of reinstatement

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under Sarbanes-Oxley, the Secretary’s
consistent position has been that such
orders are enforceable in federal district
court. See Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 (6th Cir.
2010) (order granting stay of preliminary
injunction); Bechtel v. Competitive
Technologies, Inc., 448 F.3d 469 (2d Cir.
2006); Welch v. Cardinal Bankshares
Corp., 454 F. Supp. 2d 552 (W.D. Va.
2006) (decision vacated, appeal
dismissed, No. 06–2295 (4th Cir. Feb.
20, 2008)). See also Brief for the
Intervenor/Plaintiff-Appellee Secretary
of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602 (6th Cir.
2010); Brief for the Intervenor/PlaintiffAppellant United States of America,
Welch v. Cardinal Bankshares Corp.,
No. 06–2295 (4th Cir. Feb. 20, 2008);
Brief for the Intervenor/PlaintiffAppellee Secretary of Labor, Bechtel v.
Competitive Technologies, Inc., 448
F.3d 469 (2d Cir. 2006) (No. 05–2402).
In its comments, SCSGP asserted that
‘‘this position is directly at odds with
the express language of the statute and
the federal court decisions that have
addressed this issue. . . .’’ In support
of its position, SCSGP cited the above
decisions in Solis, Bechtel, and Welch.
However, as noted by Marshall in its
comment, an inspection of these cases
shows that none of these decisions held
by a majority that federal courts lack
jurisdiction to enforce preliminary
orders of reinstatement. In Bechtel, the
Second Circuit vacated the preliminary
order of reinstatement but failed to agree
on a basis for which to do so. 448 F.3d
at 476. In the three-judge panel, one
judge found that the court lacked
jurisdiction to enforce the order, thus
holding to vacate the order. Id. at 470–
76. A second judge found that the order
could not be enforced on separate, due
process grounds, and concurred in the
result on this basis. Id. at 476–81. The
third judge dissented from the result
and found that the court did have
jurisdiction to enforce orders of
preliminary reinstatement. Id. at 483–
90. Additionally, in Solis, the Sixth
Circuit applied traditional injunctive
relief standards (‘‘balancing of the
harms’’) to grant a stay of a preliminary
order of reinstatement and thus did not
reach the jurisdictional issue on the
merits. No. 10–5602, slip op. at 2 (6th
Cir. May 25, 2010). Finally, in Welch,
the district court granted the
defendant’s motion to dismiss the
complainant’s enforcement proceeding
because the ALJ’s opinion did not make
clear whether he was ordering
preliminary reinstatement, as opposed
to simply recommending reinstatement.
407 F. Supp. 2d at 776–77. The court in

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11877

Welch specifically noted that it was
‘‘unnecessary to consider whether it
would have had the authority to enforce
the preliminary order of reinstatement
had such an order been properly
entered.’’ Id. at 777 n.2. Therefore, the
Secretary’s position is not at odds with
the federal courts that have addressed
this issue, as none has reached the issue
on the merits with a majority of the
court.
Additionally, the Secretary’s position
is consistent with the plain language of
the statute. By incorporating the
procedures of AIR21, Sarbanes-Oxley
authorizes district courts to enforce
orders, including preliminary orders of
reinstatement, issued by the Secretary
under the Act. See 18 U.S.C.
1514A(b)(2)(A) (adopting the rules and
procedures set forth in AIR21, 49 U.S.C.
42121(b)). Under 49 U.S.C. 42121(b),
which provides the procedures
applicable to investigations of
whistleblower complaints under
Sarbanes-Oxley, the Secretary must
investigate complaints under the Act
and determine whether there is
reasonable cause to believe that a
violation has occurred. ‘‘[I]f the
Secretary of Labor concludes that there
is a reasonable cause to believe that a
violation . . . has occurred, the
Secretary shall accompany the
Secretary’s findings with a preliminary
order providing the relief prescribed by
paragraph (3)(B),’’ which includes
reinstatement of the complainant to his
or her former position. 49 U.S.C.
42121(b)(2)(A) and (b)(3)(B)(ii). The
respondent may file objections to the
Secretary’s preliminary order and
request a hearing. However, the filing of
such objections ‘‘shall not operate to
stay any reinstatement remedy
contained in the preliminary order.’’ 49
U.S.C. 42121(b)(2)(A).
Paragraph (5) of 49 U.S.C. 42121(b)
provides for judicial enforcement of the
Secretary’s orders, including
preliminary orders of reinstatement.
That paragraph states ‘‘[w]henever any
person has failed to comply with an
order issued under paragraph (3), the
Secretary of Labor may file a civil action
in the United States district court for the
district in which the violation was
found to occur to enforce such order. In
actions brought under this paragraph,
the district courts shall have jurisdiction
to grant all appropriate relief including,
but not limited to, injunctive relief and
compensatory damages.’’ 49 U.S.C.
42121(b)(5). Preliminary orders that
contain the relief of reinstatement
prescribed by paragraph (3)(B) are
judicially enforceable orders, issued
under paragraph (3). Brief for the
Intervenor/Plaintiff-Appellee Secretary

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of Labor, Solis v. Tenn. Commerce
Bancorp, Inc., No. 10–5602, at 23–25
(6th Cir. 2010).
This analysis is not altered by the fact
that paragraph (3) bears the heading
‘‘Final Order.’’ SCSGP asserted that this
title and paragraph (5)’s reference to
only paragraph (3) provides clear and
unmistakable language that preliminary
orders are not final orders enforceable
under paragraph (3). However, sections
of a statute should not be read in
isolation, but rather in conjunction with
the provisions of the entire Act,
considering both the object and policy
of the Act. See, e.g., Brown &
Williamson Tobacco Corp. v. FDA, 153
F.3d 155, 162 (4th Cir. 1998), aff’d, 529
U.S. 120 (2000). See also United States
v. Buculei, 262 F.3d 322, 331 (4th Cir.
2001) (a statute’s title cannot limit the
plain meaning of its text), cert. denied,
535 U.S. 962 (2002). Focusing on the
title to subsection (b)(3) instead of
reading section 42121(b) as a coherent
whole negates the congressional
directives that preliminary
reinstatement must be ordered upon a
finding of reasonable cause and that
such orders not be stayed pending
appeal. 49 U.S.C. 42121(b)(2)(A)’s clear
statement that objections shall not stay
any preliminary order of reinstatement
demonstrates Congress’s intent that the
Secretary’s preliminary orders of
reinstatement be immediately effective.
Reading 49 U.S.C. 42121(b)(5) to allow
enforcement of such orders is the only
way to effectuate this intent.
Furthermore, the Secretary’s
interpretation is buttressed by the
legislative history of Sarbanes-Oxley
and AIR21. Before Congress enacted
Sarbanes-Oxley, the Department of
Labor had interpreted this AIR21
provision to permit judicial enforcement
of preliminary reinstatement orders.
Accordingly, Congress is presumed to
have been aware of the Department’s
interpretation of 49 U.S.C. 42121(b)(5)
and to have adopted that interpretation
when it incorporated that provision by
reference. See Lorillard v. Pons, 434
U.S. 575, 580–81 (1978) (‘‘[W]here . . .
Congress adopts a new law
incorporating sections of a prior law,
Congress normally can be presumed to
have had knowledge of the
interpretation given to the incorporated
law, at least insofar as it affects the new
statute.’’). The Secretary’s interpretation
is further supported by the legislative
history of AIR21, which makes clear
that Congress regarded preliminary
reinstatement as crucial to the
protections provided in the statute. Brief
for the Intervenor/Plaintiff-Appellee
Secretary of Labor, Solis v. Tenn.
Commerce Bancorp, Inc., No. 10–5602,

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at 41–44 (6th Cir. 2010) (reviewing
legislative history of AIR21).
Interpreting 49 U.S.C. 42121(b)(5) to
permit judicial enforcement of the
Secretary’s preliminary orders of
reinstatement is necessary to carry out
Congress’ clearly expressed intent that
whistleblowers be immediately
reinstated upon the Secretary’s finding
of reasonable cause to believe that
retaliation has occurred. Sarbanes-Oxley
also permits the person on whose behalf
the order was issued under SarbanesOxley to obtain judicial enforcement of
orders and the terms of a settlement
agreement. 18 U.S.C. 1514A(b)(2)(A)
incorporating 49 U.S.C. 42121(b)(6).
Accordingly, OSHA declines to make
the changes to this section suggested by
SCSGP.
OSHA has made two changes that are
not intended to have substantive effects.
First, OSHA has revised this section
slightly to more closely parallel the
provisions of the statute regarding the
proper venue for an enforcement action.
Second, the list of remedies that
formerly appeared in this section has
been moved to Section 1980.114. This
revision does not reflect a change in the
Secretary’s views regarding the
remedies that are available under
Sarbanes-Oxley in an action to enforce
an order of the Secretary. The revision
has been made to better parallel the
statutory structure of Sarbanes-Oxley
and AIR21, which contemplate
enforcement of a Secretary’s order and
specify the remedies that are available
in an action for de novo review of a
retaliation complaint in district court.
Compare 49 U.S.C. 42121(b)(5) and (6)
to 18 U.S.C. 1514A(c).
Section 1980.114 District Court
Jurisdiction Over Retaliation
Complaints
This section sets forth SarbanesOxley’s provisions allowing a
complainant to bring an original de
novo action in district court, alleging
the same allegations contained in the
complaint filed with OSHA, if there has
been no final decision of the Secretary
within 180 days of the filing of the
complaint. It is the Secretary’s position
that complainants may not initiate an
action in federal court after the
Secretary issues a final decision, even if
the date of the final decision is more
than 180 days after the filing of the
complaint. The purpose of the ‘‘kickout’’ 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

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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.
OSHA received two comments on the
inclusion of this statement of the
Secretary’s position in the preamble to
the IFR. Mr. Levi wrote in opposition to
this language, while the EEAC wrote in
support of this language, and requested
that it be inserted into the regulatory
text. Mr. Levi noted his belief that this
position is in conflict with the rule
itself, which allows complainants to
‘‘kick-out’’ under the specified
circumstances. To support his position,
Mr. Levi quoted from the preamble to
the 2004 version of the rules. In that
preamble, the agency stated, and Mr.
Levi quoted, ‘‘The Act might even be
interpreted to allow a complainant to
bring an action in Federal court after
receiving a final decision from the
Board, if that decision was issued more
than 180 days after the filing of the
complaint.’’ 69 FR 52111(Aug. 24,
2004). The 2004 preamble used the
words ‘‘might even’’ to denote that this
is a possible interpretation of the
language. However, in that preamble,
the agency went on to state, ‘‘The
Secretary believes that it would be a
waste of the resources of the parties, the
Department, and the courts for
complainants to pursue duplicative
litigation.’’ Id. The language in the
preamble to the 2011 IFR, continued
and retained above, simply asserts the
Secretary’s longstanding position,
which is consistent with the statute, the
2004 rule, the 2004 preamble language,
and the 2011 rule, that once a
complainant has received a final
decision from the Secretary, the goal of
the ‘‘kick-out’’ provision is no longer
implicated.
Mr. Levi also commented that this
position creates an impediment to a
complainant’s right to access the federal
district courts, and forces the
complainant to give up one right or
another: Access to the ARB or access to
the district courts. However, as
discussed above, the Secretary believes
that access to district courts under this
provision is intended to provide the
complainant with a speedy adjudication
of his complaint; it is not intended to
create two simultaneous proceedings or
a de novo review of an unfavorable
determination by the Secretary.
Congress provided a clear avenue for
review in federal courts of a final order.
As provided in Section 1980.112, either
party aggrieved by a final order of the
ALJ or ARB may still appeal to the
federal courts of appeals. The
Secretary’s position does not adversely
affect this right, but rather is intended

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations
to prevent interference with this right.
Therefore, after considering Mr. Levi
and EEAC’s comments, the agency has
decided to retain the language in the
preamble to the rule, but refrain from
adding it to the regulatory text.
The IFR amended paragraph (b) of
this section to require complainants to
provide file-stamped copies of their
complaint within seven days after filing
a complaint in district court to the
Assistant Secretary, the ALJ, or the ARB,
depending on where the proceeding is
pending, rather than requiring such
notice fifteen days in advance of such
filing. The IFR noted a copy of the
complaint also must be provided to the
Regional Administrator, the Assistant
Secretary, and the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor. This provision is
necessary to notify the agency that the
complainant has opted to file a
complaint in district court. This
provision is not a substitute for the
complainant’s compliance with the
requirements for service of process of
the district court complaint contained in
the Federal Rules of Civil Procedure and
the local rules of the district court
where the complaint is filed. These
revisions are continued in this final
rule. However, OSHA has replaced the
requirement of providing a copy of the
complaint to the Regional Administrator
with a requirement that a copy be
provided to the ‘‘OSHA official who
issued the findings and/or preliminary
order.’’ This non-substantive change is
intended to reflect that an official other
than the Regional Administrator may be
the official who issued the findings and/
or preliminary order.
The NWC noted its appreciation for
this revision to the rule, and suggested
that ‘‘[t]he Department’s wise policy on
notice . . . should now be replicated in
the Department’s regulations under
other whistleblower protection laws.’’
OSHA is conducting several
rulemakings for whistleblower
proceedings at this time and intends to
include this revised notice provision
where applicable.
In addition to the changes noted
above, OSHA has revised this section to
clarify the provision and more closely
mirror the language used in the statute.
For example, paragraph (b) now
incorporates the provisions of the
statute specifying the remedies and
burdens of proof in a district court
action.
Section 1980.115 Special
Circumstances; Waiver of Rules
This section provides that in
circumstances not contemplated by
these rules or for good cause the ALJ or

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the ARB may, upon application and
notice to the parties, waive any rule as
justice or the administration of
Sarbanes-Oxley requires. No comments
were received on this section.
IV. Paperwork Reduction Act.
This rule contains a reporting
provision (filing a retaliation complaint,
Section 1980.103) which was previously
reviewed and approved for use by the
Office of Management and Budget
(OMB) under the provisions of the
Paperwork Reduction Act of 1995 (Pub.
L. 104–13). The assigned OMB control
number is 1218–0236.
V. Administrative Procedure Act.
The notice and comment rulemaking
procedures of Section 553 of the
Administrative Procedure Act (APA) do
not apply to ‘‘interpretive rules, general
statements of policy, or rules of agency
organization, procedure, or practice.’’ 5
U.S.C. 553(b)(A). Part 1980 sets forth
interpretive rules and rules of agency
procedure and practice within the
meaning of that section. Therefore,
publication in the Federal Register of a
notice of proposed rulemaking and
request for comments was not required.
Although Part 1980 was not subject to
the notice and comment procedures of
the APA, the Assistant Secretary sought
and considered comments to enable the
agency to improve the rules by taking
into account the concerns of interested
persons.
Furthermore, because this rule is
procedural and interpretive rather than
substantive, the normal requirement of
5 U.S.C. 553(d) that a rule not be
effective until at least 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 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. Most of the
provisions of this rule were in the IFR
and have already been in effect since
November 3, 2011, so a delayed
effective date is unnecessary.
VI. Executive Orders 12866 and 13563;
Unfunded Mandates Reform Act of
1995; Executive Order 13132
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of Executive
Order 12866, reaffirmed by Executive
Order 13563, because it is not likely to:
(1) Have 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

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environment, public health or safety, or
State, local, or Tribal governments or
communities; (2) create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in Executive Order 12866.
Therefore, no economic impact analysis
under Section 6(a)(3)(C) of Executive
Order 12866 has been prepared. For the
same reason, and because no notice of
proposed rulemaking was published, no
statement is required under Section 202
of the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1532. In any event, this
rulemaking is procedural and
interpretive in nature and is thus not
expected to have a significant economic
impact. Finally, this rule does not have
‘‘federalism implications.’’ The rule
does not have ‘‘substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government’’ and
therefore is not subject to Executive
Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The notice and comment rulemaking
procedures of Section 553 of the APA
do not apply ‘‘to interpretative rules,
general statements of policy, or rules of
agency organization, procedure, or
practice.’’ 5 U.S.C. 553(b)(A). Rules that
are exempt from APA notice and
comment requirements are also exempt
from the Regulatory Flexibility Act
(RFA). See SBA Office of Advocacy, A
Guide for Government Agencies: How to
Comply with the Regulatory Flexibility
Act 9 (May 2012); also found at: http://
www.sba.gov/sites/default/files/
rfaguide_0512_0.pdf*. This is a rule of
agency procedure, practice, and
interpretation within the meaning of
that section; and therefore the rule is
exempt from both the notice and
comment rulemaking procedures of the
APA and the requirements under the
RFA.
List of Subjects in 29 CFR Part 1980
Administrative practice and
procedure, Corporate fraud,
Employment, Investigations, Reporting
and recordkeeping requirements,
Whistleblower.
Authority and Signature
This document was prepared under
the direction and control of David

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Michaels, Ph.D., MPH, Assistant
Secretary of Labor for Occupational
Safety and Health.
Signed at Washington, DC on February 25,
2015.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.

Accordingly, for the reasons set out in
the preamble, 29 CFR part 1980 is
revised to read as follows:
PART 1980—PROCEDURES FOR THE
HANDLING OF RETALIATION
COMPLAINTS UNDER SECTION 806
OF THE SARBANES-OXLEY ACT OF
2002, AS AMENDED.
Subpart A—Complaints, Investigations,
Findings and Preliminary Orders
Sec:
1980.100 Purpose and scope.
1980.101 Definitions.
1980.102 Obligations and prohibited acts.
1980.103 Filing of retaliation complaints.
1980.104 Investigation.
1980.105 Issuance of findings and
preliminary orders.
Subpart B—Litigation.
1980.106 Objections to the findings and the
preliminary order and request for a
hearing.
1980.107 Hearings.
1980.108 Role of Federal agencies.
1980.109 Decision and orders of the
administrative law judge.
1980.110 Decision and orders of the
Administrative Review Board.
Subpart C—Miscellaneous Provisions
1980.111 Withdrawal of complaints,
findings, objections, and petitions for
review; settlement.
1980.112 Judicial review.
1980.113 Judicial enforcement.
1980.114 District court jurisdiction over
retaliation complaints.
1980.115 Special circumstances; waiver of
rules.
Authority: 18 U.S.C. 1514A, as amended
by the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010, Pub. L.
111–203 (July 21, 2010); Secretary of Labor’s
Order No. 01–2012 (Jan. 18, 2012), 77 FR
3912 (Jan. 25, 2012); Secretary of Labor’s
Order No. 2–2012 (Oct. 19, 2012), 77 FR
69378 (Nov. 16, 2012).

Subpart A—Complaints,
Investigations, Findings and
Preliminary Orders

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§ 1980.100

Purpose and scope.

(a) This part implements procedures
under section 806 of the Corporate and
Criminal Fraud Accountability Act of
2002, Title VIII of the Sarbanes-Oxley
Act of 2002 (Sarbanes-Oxley or Act),
enacted into law July 30, 2002, as
amended by the Dodd-Frank Wall Street
Reform and Consumer Protection Act of
2010, enacted into law July 21, 2010.

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Sarbanes-Oxley provides for employee
protection from retaliation by
companies, their subsidiaries and
affiliates, officers, employees,
contractors, subcontractors, and agents
because the employee has engaged in
protected activity pertaining to a
violation or alleged violation of 18
U.S.C. 1341, 1343, 1344, or 1348, or any
rule or regulation of the Securities and
Exchange Commission, or any provision
of Federal law relating to fraud against
shareholders. Sarbanes-Oxley also
provides for employee protection from
retaliation by nationally recognized
statistical rating organizations, their
officers, employees, contractors,
subcontractors or agents because the
employee has engaged in protected
activity.
(b) This part establishes procedures
pursuant to Sarbanes-Oxley for the
expeditious handling of retaliation
complaints made by employees, or by
persons acting on their behalf and sets
forth the Secretary’s interpretations of
the Act on certain statutory issues.
These rules, together with those
codified at 29 CFR part 18, set forth the
procedures for submission of
complaints under Sarbanes-Oxley,
investigations, issuance of findings and
preliminary orders, objections to
findings and orders, litigation before
administrative law judges, post-hearing
administrative review, withdrawals, and
settlements.
§ 1980.101

Definitions.

As used in this part:
(a) Act means section 806 of the
Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of
the Sarbanes-Oxley Act of 2002, Pub. L.
107–204, July 30, 2002, codified at 18
U.S.C. 1514A, as amended by the DoddFrank Wall Street Reform and Consumer
Protection Act of 2010, Pub. L. 111–203,
July 21, 2010.
(b) Assistant Secretary means the
Assistant Secretary of Labor for
Occupational Safety and Health or the
person or persons to whom he or she
delegates authority under the Act.
(c) Business days means days other
than Saturdays, Sundays, and Federal
holidays.
(d) Company means any company
with a class of securities registered
under section 12 of the Securities
Exchange Act of 1934 (15 U.S.C. 78l) or
any company required to file reports
under section 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78o(d))
including any subsidiary or affiliate
whose financial information is included
in the consolidated financial statements
of such company.

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(e) Complainant means the employee
who filed a complaint under the Act or
on whose behalf a complaint was filed.
(f) Covered person means any
company, including any subsidiary or
affiliate whose financial information is
included in the consolidated financial
statements of such company, or any
nationally recognized statistical rating
organization, or any officer, employee,
contractor, subcontractor, or agent of
such company or nationally recognized
statistical rating organization.
(g) Employee means an individual
presently or formerly working for a
covered person, an individual applying
to work for a covered person, or an
individual whose employment could be
affected by a covered person.
(h) Nationally recognized statistical
rating organization means a credit rating
agency under 15 U.S.C. 78c(61) that:
(1) Issues credit ratings certified by
qualified institutional buyers, in
accordance with 15 U.S.C. 78o–
7(a)(1)(B)(ix), with respect to:
(i) Financial institutions, brokers, or
dealers;
(ii) Insurance companies;
(iii) Corporate issuers;
(iv) Issuers of asset-backed securities
(as that term is defined in section
1101(c) of part 229 of title 17, Code of
Federal Regulations, as in effect on
September 29, 2006);
(v) Issuers of government securities,
municipal securities, or securities
issued by a foreign government; or
(vi) A combination of one or more
categories of obligors described in any
of paragraphs (h)(1)(i) through (v) of this
section; and
(2) Is registered under 15 U.S.C. 78o7.
(i) OSHA means the Occupational
Safety and Health Administration of the
United States Department of Labor.
(j) Person means one or more
individuals, partnerships, associations,
companies, corporations, business
trusts, legal representatives or any group
of persons.
(k) Respondent means the person
named in the complaint who is alleged
to have violated the Act.
(l) Secretary means the Secretary of
Labor or persons to whom authority
under the Act has been delegated.
(m) Any future statutory amendments
that affect the definition of a term or
terms listed in this section will apply in
lieu of the definition stated herein.
§ 1980.102
acts.

Obligations and prohibited

(a) No covered person may discharge,
demote, suspend, threaten, harass or in
any other manner retaliate against,
including, but not limited to,

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intimidating, threatening, restraining,
coercing, blacklisting or disciplining,
any employee with respect to the
employee’s compensation, terms,
conditions, or privileges of employment
because the employee, or any person
acting pursuant to the employee’s
request, has engaged in any of the
activities specified in paragraphs (b)(1)
and (2) of this section.
(b) An employee is protected against
retaliation (as described in paragraph (a)
of this section) by a covered person for
any lawful act done by the employee:
(1) To provide information, cause
information to be provided, or otherwise
assist in an investigation regarding any
conduct which the employee reasonably
believes constitutes a violation of 18
U.S.C. 1341, 1343, 1344, or 1348, any
rule or regulation of the Securities and
Exchange Commission, or any provision
of Federal law relating to fraud against
shareholders, when the information or
assistance is provided to or the
investigation is conducted by—
(i) A Federal regulatory or law
enforcement agency;
(ii) Any Member of Congress or any
committee of Congress; or
(iii) A person with supervisory
authority over the employee (or such
other person working for the employer
who has the authority to investigate,
discover, or terminate misconduct); or
(2) To file, cause to be filed, testify,
participate in, or otherwise assist in a
proceeding filed or about to be filed
(with any knowledge of the employer)
relating to an alleged violation of 18
U.S.C. 1341, 1343, 1344, or 1348, any
rule or regulation of the Securities and
Exchange Commission, or any provision
of Federal law relating to fraud against
shareholders.

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§ 1980.103

Filing of retaliation complaints.

(a) Who may file. An employee who
believes that he or she has been
retaliated against by a covered person in
violation of the Act may file, or have
filed on the employee’s behalf, a
complaint alleging such retaliation.
(b) Nature of filing. No particular form
of complaint is required. A complaint
may be filed orally or in writing. Oral
complaints will be reduced to writing
by OSHA. If the complainant is unable
to file the complaint in English, OSHA
will accept the complaint in any
language.
(c) Place of filing. The complaint
should be filed with the OSHA office
responsible for enforcement activities in
the geographical area where the
employee resides or was employed, but
may be filed with any OSHA officer or
employee. Addresses and telephone
numbers for these officials are set forth

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in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days
after an alleged violation of the Act
occurs or after the date on which the
employee became aware of the alleged
violation of the Act, any employee who
believes that he or she has been
retaliated against in violation of the Act
may file, or have filed on the employee’s
behalf, a complaint alleging such
retaliation. The date of the postmark,
facsimile transmittal, electronic
communication transmittal, telephone
call, hand-delivery, delivery to a thirdparty commercial carrier, or in-person
filing at an OSHA office will be
considered the date of filing. The time
for filing a complaint may be tolled for
reasons warranted by applicable case
law. For example, OSHA may consider
the time for filing a complaint equitably
tolled if a complainant mistakenly files
a complaint with the another agency
instead of OSHA within 180 days after
becoming aware of the alleged violation.
§ 1980.104

Investigation.

(a) Upon receipt of a complaint in the
investigating office, OSHA 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, et seq., and other applicable
confidentiality laws. OSHA will also
notify the respondent of its rights under
paragraphs (b) and (f) of this section and
§ 1980.110(e). OSHA 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
Securities and Exchange Commission.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section, the respondent may submit to
OSHA a written statement and any
affidavits or documents substantiating
its position. Within the same 20 days,
the respondent may request a meeting
with OSHA to present its position.
(c) During the investigation, OSHA
will request that each party provide the
other parties to the whistleblower
complaint with a copy of submissions to
OSHA that are pertinent to the
whistleblower complaint. Alternatively,
if a party does not provide its
submissions to OSHA to the other party,
OSHA will provide them to the other
party (or the party’s legal counsel if the
party is represented by counsel) at a
time permitting the other party an
opportunity to respond. Before

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providing such materials to the other
party, OSHA will redact them, if
necessary, consistent with the Privacy
Act of 1974, 5 U.S.C. 552a, and other
applicable confidentiality laws. OSHA
will also provide each party with an
opportunity to respond to the other
party’s submissions.
(d) Investigations will be conducted
in a manner that protects the
confidentiality of any person who
provides information on a confidential
basis, other than the complainant, in
accordance with part 70 of this title.
(e)(1) A complaint will be dismissed
unless the complainant has made a
prima facie showing that a 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
personnel action took place within a
temporal proximity after the protected
activity, or at the first opportunity
available to respondent, 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,
further investigation of the complaint
will not be conducted if the respondent
demonstrates by clear and convincing

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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,
OSHA will proceed with the
investigation. The investigation will
proceed whenever it is necessary or
appropriate to confirm or verify the
information provided by the
respondent.
(f) Prior to the issuance of findings
and a preliminary order as provided for
in § 1980.105, if OSHA has reasonable
cause, on the basis of information
gathered under the procedures of this
part, to believe that the respondent has
violated the Act and that preliminary
reinstatement is warranted, OSHA will
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, OSHA
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 investigator,
to present statements from witnesses in
support of its position, and to present
legal and factual arguments. The
respondent will present this evidence
within 10 business days of OSHA’s
notification pursuant to this paragraph,
or as soon afterwards as OSHA and the
respondent can agree, if the interests of
justice so require.

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§ 1980.105 Issuance of findings and
preliminary orders.

(a) After considering all the relevant
information collected during the
investigation, the Assistant Secretary
shall issue, within 60 days of 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 the Act.

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(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 include all relief
necessary to make the employee whole,
including reinstatement with the same
seniority status that the complainant
would have had but for the retaliation;
back pay with interest; and
compensation for any special damages
sustained as a result of the retaliation,
including litigation costs, expert witness
fees, and reasonable attorney fees.
Interest on back pay will be calculated
using the interest rate applicable to
underpayment of taxes under 26 U.S.C.
6621 and will be compounded daily.
The preliminary order will also require
the respondent to submit appropriate
documentation to the Social Security
Administration allocating any back pay
award to the appropriate calendar
quarters.
(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 (or other means that allow
OSHA to confirm receipt), 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 fees not exceeding $1,000 from
the administrative law judge (ALJ)
regardless of whether the respondent
has filed objections, if the complaint
was frivolous or brought in bad faith.
The findings, and where appropriate,
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 § 1980.106. However, the
portion of any preliminary order
requiring reinstatement will be effective
immediately upon the respondent’s

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receipt of the findings and the
preliminary order, regardless of any
objections to the findings and/or the
order.
Subpart B—Litigation
§ 1980.106 Objections to the findings and
the preliminary order and request for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney fees
under the Act, must file any objections
and/or a request for a hearing on the
record within 30 days of receipt of the
findings and preliminary order pursuant
to § 1980.105(b). The objections and/or
request for a hearing must be in writing
and state whether the objections are to
the findings and/or the preliminary
order, and/or whether there should be
an award of attorney 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 handdelivery 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 preliminary order will become
the final decision of the Secretary, not
subject to judicial review.
§ 1980.107

Hearings.

(a) Except as provided in this part,
proceedings will be conducted in
accordance with the rules of practice
and procedure for administrative

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hearings before the Office of
Administrative Law Judges, codified at
subpart A of part 18 of this title.
(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly
assign the case to an ALJ who will
notify the parties, by certified mail, of
the day, time, and place of hearing. The
hearing is to commence expeditiously,
except upon a showing of good cause or
unless otherwise agreed to by the
parties. Hearings will be conducted de
novo, on the record. 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.

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§ 1980.108

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) Parties must send copies of
documents to OSHA and to the
Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor, only upon request of OSHA, or
when OSHA is participating in the
proceeding, or when service on OSHA
and the Associate Solicitor is otherwise
required by these rules.
(b) The Securities and Exchange
Commission, if interested in a
proceeding, may participate as amicus
curiae at any time in the proceeding, at
the Commission’s discretion. At the
request of the Securities and Exchange
Commission, copies of all documents in
a case must be sent to the Commission,
whether or not the Commission is
participating in the proceeding.
§ 1980.109 Decision and orders of the
administrative law judge.

(a) The decision of the ALJ will
contain appropriate findings,

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conclusions, and an order pertaining to
the remedies provided in paragraph (d)
of this section, as appropriate. A
determination that a violation has
occurred may be made only if the
complainant has demonstrated by a
preponderance of the evidence that
protected activity was a contributing
factor in the adverse action alleged in
the complaint.
(b) If the complainant has satisfied the
burden set forth in the prior paragraph,
relief may not be ordered if the
respondent demonstrates by clear and
convincing evidence that it would have
taken the same adverse action in the
absence of any protected activity.
(c) Neither OSHA’s determination to
dismiss a complaint without completing
an investigation pursuant to
§ 1980.104(e) nor OSHA’s determination
to proceed with an investigation is
subject to review by the ALJ, and a
complaint may not be remanded for the
completion of an investigation or for
additional findings on the basis that a
determination to dismiss was made in
error. Rather, if there otherwise is
jurisdiction, the ALJ will hear the case
on the merits or dispose of the matter
without a hearing if the facts and
circumstances warrant.
(d)(1) If the ALJ concludes that the
respondent has violated the law, the
order will provide all relief necessary to
make the employee whole, including,
reinstatement with the same seniority
status that the complainant would have
had but for the retaliation; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees. Interest on
back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will
also require the respondent to submit
appropriate documentation to the Social
Security Administration allocating any
back pay award to the appropriate
calendar quarters.
(2) If the ALJ determines that the
respondent has not violated the law, an
order will be issued denying the
complaint. If, upon the request of the
respondent, the ALJ determines that a
complaint was frivolous or was brought
in bad faith, the judge may award to the
respondent reasonable attorney fees, 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

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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). The 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.
§ 1980.110 Decision and orders of the
Administrative Review Board.

(a) Any party desiring to seek review,
including judicial review, of a decision
of the ALJ, or a respondent alleging that
the complaint was frivolous or brought
in bad faith who seeks an award of
attorney 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 the order based on
exceptional circumstances. The ARB
will specify the terms under which any
briefs are to be filed. The ARB will
review the factual determinations of the
ALJ under the substantial evidence
standard. If no timely petition for

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations

review is filed, or the ARB denies
review, the decision of the ALJ will
become the final order of the Secretary.
If no timely petition for review is filed,
the resulting final order is not subject to
judicial review.
(c) The final decision of the ARB shall
be issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 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, 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
all relief necessary to make the
complainant whole, including
reinstatement with the same seniority
status that the complainant would have
had but for the retaliation; back pay
with interest; and compensation for any
special damages sustained as a result of
the retaliation, including litigation
costs, expert witness fees, and
reasonable attorney fees. Interest on
back pay will be calculated using the
interest rate applicable to underpayment
of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will
also require the respondent to submit
appropriate documentation to the Social
Security Administration allocating any
back pay award to the appropriate
calendar quarters.
(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 reasonable attorney fees, not
exceeding $1,000.
Subpart C—Miscellaneous Provisions

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§ 1980.111 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 OSHA, orally or
in writing, of his or her withdrawal.
OSHA then will confirm in writing the
complainant’s desire to withdraw and

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

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Assistant Secretary’s findings and/or
order, the case may be settled if the
participating parties agree to a
settlement and the settlement is
approved by the ALJ if the case is before
the ALJ, or by the ARB if the ARB has
accepted the case for review. A copy of
the settlement will be filed with the ALJ
or the ARB, as appropriate.
(e) Any settlement approved by
OSHA, the ALJ, or the ARB, will
constitute the final order of the
Secretary and may be enforced in
United States district court pursuant to
§ 1980.113.
§ 1980.112

Judicial review.

(a) Within 60 days after the issuance
of a final order under §§ 1980.109 and
1980.110, any person adversely affected
or aggrieved by the order may file a
petition for review of the order in the
United States Court of Appeals for the
circuit in which the violation allegedly
occurred or the circuit in which the
complainant resided on the date of the
violation.
(b) A final order 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.
§ 1980.113

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 the Act, the Secretary may
file a civil action seeking enforcement of
the order in the United States district
court for the district in which the
violation was found to have occurred.
Whenever any person has failed to
comply with a preliminary order of
reinstatement, or a final order, including
one approving a settlement agreement,
issued under the Act, a person on whose
behalf the order was issued may file a
civil action seeking enforcement of the
order in the appropriate United States
district court.
§ 1980.114 District court jurisdiction over
retaliation complaints.

(a) If the Secretary has not issued a
final decision within 180 days of the
filing of the complaint, and there is no
showing that there has been delay due
to the bad faith of the complainant, the
complainant may bring an action at law
or equity for de novo review in the
appropriate district court of the United

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations
States, which will have jurisdiction over
such an action without regard to the
amount in controversy. A party to an
action brought under this paragraph
shall be entitled to trial by jury.
(b) A proceeding under paragraph (a)
of this section shall be governed by the
same legal burdens of proof specified in
§ 1980.109. An employee prevailing in
any action under paragraph (a) of this
section shall be entitled to all relief
necessary to make the employee whole,
including:
(1) Reinstatement with the same
seniority status that the employee
would have had, but for the retaliation;
(2) The amount of back pay, with
interest;
(3) Compensation for any special
damages sustained as a result of the
retaliation; and
(4) 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 OSHA, 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.
§ 1980.115
of rules.

Special circumstances; waiver

In special circumstances not
contemplated by the provisions of this
part, or for good cause shown, the ALJ
or the ARB on review may, upon
application, after three days notice to all
parties, waive any rule or issue any
orders that justice or the administration
of the Act requires.
[FR Doc. 2015–05001 Filed 3–4–15; 08:45 am]
BILLING CODE 4510–26–P

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2013–0907]

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RIN 1625–AA00

Coast Guard, DHS.
Final rule.

AGENCY:

The Coast Guard is
establishing safety zones for all waters

SUMMARY:

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Table of Acronyms
AIS Automated Information System
BNM Broadcast Notice to Mariners
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
LNM Local Notice to Mariners
MM Mile Marker
MSU Marine Safety Unit
M/V Motor Vessel
NPRM Notice of Proposed Rulemaking
RIAC River Industry Action Committee
UMR Upper Mississippi River
USACE United States Army Corps of
Engineers

A. Regulatory History and Information

Safety Zones; Upper Mississippi River
Between Mile 38.0 and 46.0, Thebes, IL;
and Between Mile 78.0 and 81.0, Grand
Tower, IL
ACTION:

of the Upper Mississippi River (UMR)
from mile 38.0 to 46.0 and from mile
78.0 to 81.0. These safety zones are
needed to protect persons, property, and
infrastructure from potential damage
and safety hazards associated with
subsurface rock removal in the Upper
Mississippi River. Any deviation from
the conditions and requirements put
into place are prohibited unless
specifically authorized by the cognizant
Captain of the Port (COTP) Ohio Valley
or his designated representatives.
DATES: This rule is effective on March 5,
2015.
ADDRESSES: Documents mentioned in
this preamble are part of docket [USCG–
2013–0907]. To view documents
mentioned in this preamble as being
available in the docket, go to http://
www.regulations.gov, type the docket
number in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rulemaking. You may also visit the
Docket Management Facility in Room
W12–140 on the ground floor of the
Department of Transportation West
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email LT Dan McQuate, U.S. Coast
Guard; telephone 270–442–1621, email
[email protected]. If you have
questions on viewing or submitting
material to the docket, call Cheryl F.
Collins, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:

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Based on forecasted historical low
water on the UMR in the fall of 2012,
the USACE contracted subsurface rock
removal operations in Thebes, IL to
mitigate the effects of the forecasted low
water event. In order to provide
additional safety measures and regulate
navigation during low water and the
planned rock removal operations, the

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11885

Coast Guard published a temporary final
rule in the Federal Register for an RNA
from mile 0.0 to 185.0 UMR (77 FR
75850). The RNA was in effect from
December 1, 2012 until March 31, 2013,
which is when river levels rebounded
and the subsurface rock removal
operation was delayed because of high
water levels. During the effective period
for this temporary RNA, restrictions
were enforced for a total of
approximately 45 days.
In the fall of 2013, based on changing
river conditions, low water was again
forecasted and the USACE’s contracted
subsurface rock removal operations in
Thebes, IL were scheduled to resume.
The Coast Guard then published a
second temporary final rule in the
Federal Register re-establishing the
RNA (78 FR 70222). Based on the
forecasted water levels and the plans
and needs for the resumed rock removal
operations, the RNA covered a smaller
river section extending from mile 0.0 to
109.9 on the UMR. The RNA was
implemented to ensure the safety of the
USACE contractors and marine traffic
during the actual rock removal work,
and to support the safe and timely
clearing of vessel queues at the
conclusion of the work each day. The
RNA was in effect from November 4,
2013 until April 12, 2014, but was only
enforced from December 10, 2013 until
February 19, 2014 due to water levels
increasing and forcing the USACE
contractors to cease rock removal
operations. During the times the RNA
was enforced, the Coast Guard worked
with the USACE, RIAC, and the USACE
contractor to implement river closures
and various restrictions to maximize the
size of tows that could safely pass while
keeping the USACE contractor crews
safe. The Coast Guard also assisted in
clearing vessel queues after each closure
or restriction.
On April 17, 2014, MSU Paducah
contacted USACE St. Louis to determine
if subsurface rock removal operations
will be conducted in the Upper
Mississippi River in the vicinity of
Thebes, IL in future years. USACE St.
Louis reported that such operations are
anticipated to continue as river
conditions permit, and that there are
multiple phases of subsurface rock
removal operations remaining. On
August 28, 2014 USACE St. Louis
notified the Coast Guard that based on
recently acquired data, rock removal
operations will also be required in the
Upper Mississippi River between miles
78.0 and 81.0 at Grand Tower, IL in the
future.
USACE St. Louis also informed the
Coast Guard that the environmental
window for these operations each year

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