[Federal Register Volume 68, Number 55 (Friday, March 21, 2003)]
[Rules and Regulations]
[Pages 14100-14111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X03-10321]
[[Page 14099]]
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Part VI
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1979
Procedures for the Handling of Discrimination Complaints Under Section
519 of the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century; Final Rule
Federal Register&thnsp;/&thnsp;Vol. 68, No. 55&thnsp;/&thnsp;Friday,
March 21, 2003&thnsp;/&thnsp;Rules and Regulations
[[Page 14100]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1979
RIN 1218–AB99
Procedures for the Handling of Discrimination Complaints under
Section 519 of the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: This document provides the final text of regulations governing
the employee protection (“whistleblower”) provisions of
Section 519 of the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (“AIR21”), a Federal Aviation
Administration reauthorization bill, enacted into law April 5, 2000.
This rule establishes procedures and time frames for the handling of
complaints under AIR21, including procedures and time frames for
employee complaints to the Occupational Safety and Health
Administration (“OSHA”), investigations by OSHA, appeals of
OSHA determinations to an administrative law judge (“ALJ”)
for a hearing de novo, hearings by ALJs, appeal of ALJ decisions to the
Administrative Review Board (acting on behalf of the Secretary) and
judicial review of the Secretary's final decision.
On April 1, 2002, OSHA published an interim final rule (67 FR
15454) which provided for rules of procedure and time frames to
implement Section 519 of AIR21. At that time the agency requested
comments concerning the interim final rules, and in response several
comments were received from interested parties. OSHA has reviewed the
comments and now adopts this final rule which has been revised in part
to address problems perceived by the agency and the commenters.
DATES: This final rule is effective on March 21, 2003.
FOR FURTHER INFORMATION CONTACT: John Spear, Director, Office of
Investigative Assistance, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N–3603, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202)
693–2199.
SUPPLEMENTARY INFORMATION:
I. Background
The Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (“AIR21”), Public Law 106–181, was enacted on
April 5, 2000. Section 519 of the Act, codified at 49 U.S.C. 42121,
provides protection to employees against retaliation by air carriers,
their contractors and their subcontractors, because they provided
information to the employer or the Federal Government relating to air
carrier safety violations, or filed, testified, or assisted in a
proceeding against the employer relating to any violation or alleged
violation of any order, regulation, or standard of the Federal Aviation
Administration (“FAA”) or any other law relating to the
safety of air carriers, or because they are about to take any of these
actions. These rules establish procedures for the handling of
complaints under AIR21.
II. Summary of Statutory Provisions
The AIR21 whistleblower provisions include procedures which allow a
covered employee to file, within 90 days of the alleged discrimination,
a complaint with the Secretary of Labor (“the
Secretary”).\1\ Upon receipt of the complaint, the Secretary must
provide written notice to both the person named in the complaint who is
alleged to have violated the Act (“the named person”) and
the FAA of: The allegations contained in the complaint, the substance
of the evidence submitted with the complaint, and the rights of the
named person throughout the investigation. The Secretary must then,
within 60 days of receipt of the complaint, afford the named person an
opportunity to submit a response and meet with the investigator to
present statements from witnesses, and conduct an investigation.
However, the Secretary may conduct an investigation only if the
complainant has made a prima facie showing that the alleged
discriminatory behavior was a contributing factor in the unfavorable
personnel action alleged in the complaint and the named person has not
demonstrated, through clear and convincing evidence, that the employer
would have taken the same unfavorable personnel action in the absence
of that behavior. This provision is similar to the 1992 amendments to
the ERA, codified at 42 U.S.C. 5851.
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\1\&thnsp;Responsibility for receiving and investigating these
complaints has been delegated to the Assistant Secretary for OSHA.
Secretary's Order 5–2002 (67 FR 65008, October 22, 2002);
Secretary's Order 1–2002 (67 FR 64272, October 17, 2002).
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
Administrative Review Board. See Secretary's Order 1–2002.
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After investigating a complaint, the Secretary shall issue a
determination letter. If, as a result of the investigation, the
Secretary finds there is reasonable cause to believe that
discriminatory behavior has occurred, the Secretary must notify the
named person of those findings along with a preliminary order which
requires the named person to: Abate the violation, reinstate the
complainant to his or her former position and provide make-whole relief
and compensatory damages to the complainant, as well as costs and
attorney's and expert fees reasonably incurred. The complainant and the
named person 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 on the record. The filing of
objections under AIR21 shall stay any remedy in the preliminary order
except for preliminary reinstatement. This provision for preliminary
reinstatement after the investigation is similar to the employee
protection provision of STAA, 49 U.S.C. 31105. If a hearing before an
administrative law judge is not requested within 30 days, the
preliminary order becomes final and is not subject to judicial review.
If a hearing is held, AIR21 requires the hearing to be conducted
“expeditiously.” The Secretary then has 120 days after the
“conclusion of a 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, complainant and the
named person may enter into a settlement agreement which terminates the
proceeding. The Secretary shall assess against the named person, on the
complainant's request, a sum equal to the total amount of all costs and
expenses, including attorney's and expert witness fees, reasonably
incurred by the complainant in bringing the complaint to the Secretary
or in connection with participating in the proceeding which resulted in
the order on behalf of the complainant. The Secretary also may award a
prevailing employer an attorney's fee, not exceeding $1,000, if he or
she finds that the complaint is or has been brought in bad faith.
Within 60 days of the issuance of the final order, any person adversely
affected or aggrieved by the Secretary's final order may file an appeal
with the United States Court of Appeals for the circuit in which the
violation occurred or the circuit where the complainant resided on the
date of the violation. Finally, AIR21 makes persons who violate these
newly created whistleblower provisions subject to a
[[Page 14101]]
civil penalty of up to $1,000. This provision is administered by the
FAA.
III. Summary of Regulations and Rulemaking Proceedings
On April 1, 2002, the Occupational Safety and Health Administration
published in the Federal Register an interim final rule promulgating
rules which implemented Section 519 of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, Public Law
106–181, 67 FR 15454—15461. In addition to promulgating the
interim final rule, OSHA's notice included a request for public comment
on the interim rules by May 31, 2002. On May 29, 2002, OSHA received a
request from the Association of Flight Attendants requesting a 30-day
extension of the comment period, and on June 13, 2002, OSHA published a
notice in the Federal Register extending the comment period to June 30,
2002, 67 FR 40597.
In response, six organizations filed comments with the agency.
Comments were received from the Association of Flight Attendants (AFA);
the Air Line Pilots Association (ALPA); the Transportation Trades
Department, AFL–CIO (TTD); the Air Transport Association (ATA);
the American Federation of Labor and Congress of Industrial
Organizations (AFL–CIO); and the National Whistleblower Legal
Defense and Education Fund on behalf of the National Whistleblower
Center (NWC). Senator Charles Grassley of Iowa also submitted comments.
OSHA has reviewed the comments and, in response, has developed a
final rule which makes some changes in the interim final rule. Other
changes urged by commenters were considered but rejected. OSHA
addresses the comments in the discussion that follows. The comments and
OSHA's response are discussed in the order of the provisions of the
rule.
General Comments
OSHA received four comments of a general nature relating to the
regulations. The AFL–CIO questioned whether the interim
procedures related to filing of complaints, processing of
investigations and conduct of administrative reviews satisfy the
following four requirements which, in its opinion, are needed to meet
the intent of Congress:
(1) Whistleblowers must have control of their legal cases through
an Individual Right of Action;
(2) The investigating and prosecuting authority must not have
discretionary authority that may be abused to undermine the legal
interests of complainants;
(3) Loopholes that allow illegal employer conduct or circumscribe
the protected acts of complainants must be eliminated; and
(4) Legal burdens of proof for whistleblowers must be realistic.
OSHA believes that, as a general matter, the interim rules provide for
administrative and judicial review procedures and burdens of proof
required by AIR21 and fully satisfy the spirit and intent of Congress
to provide whistleblower protection to aviation workers, thus helping
to increase the safety of the aviation industry and the traveling
public.
The NWC suggested that OSHA posters be amended to inform employees
of all the whistleblower laws administered by OSHA; or, in the
alternative, OSHA should make posters regarding employee rights under
all the whistleblower laws widely available free of charge to the
regulated community and encourage employers to comply with the law and
voluntarily post notice of the law. OSHA believes that posters and
other means or informing employers and employees of their rights and
responsibilities under the various whistleblower statutes are vital to
achieving the goals of the statutes, although AIR21 does not authorize
OSHA to require employers to post notice of the law. However, the FAA
has developed and distributed posters and other informational materials
to airport authorities, employers and employee groups around the
country.
The ATA submitted three general comments regarding the nature of
the relationship between OSHA and the FAA. The ATA suggested that the
rules be modified to provide that (1) the FAA has complete and
exclusive jurisdiction over air carrier safety issues, (2) when OSHA
receives an AIR21 discrimination complaint, the FAA must first make a
threshold determination as to whether the underlying safety issues
raised by the complaint relate to a violation, and (3) throughout any
investigation by OSHA, the FAA retains exclusive authority to determine
any air carrier safety issues underlying or related to the
discrimination complaint. With respect to the first and third comments,
OSHA agrees that the FAA has authority over air carrier safety issues
as defined by statute. OSHA does not agree, however, that AIR21
provides that it is the FAA's responsibility to first make a threshold
determination as to whether the underlying safety issues raised by the
complainant relates to an air carrier safety violation. That initial,
threshold determination of whether the complainant engaged in
activities protected by the law is common to all the various
whistleblower statutes and is made by OSHA in the regular course of
determining a prima facie showing that protected conduct was a
contributing factor in the alleged unfavorable personnel action.
Section 1979.100 Purpose and Scope
This section describes the purpose of the regulations implementing
AIR21 and provides an overview of the procedures covered by these new
regulations. No comments were received relating to this section.
Section 1979.101 Definitions
In addition to the general definitions, the regulations include
program-specific definitions of “air carrier” and
“contractor.” The statutory definition of “air
carrier” applicable to AIR21 is found at 49 U.S.C. 40102(a)(2), a
general definitional provision applicable to air commerce and safety.
The statutory definition of “contractor” is found in AIR21
at 49 U.S.C. 42121(e).
Four comments were received regarding the definitions contained in
§&thnsp;1979.101. The NWC proposed that the term “air
carrier” include those carriers owned by foreign persons, stating
that it would be inconsistent with safety and national security to
exclude from protection whistleblowers who uncovered and disclosed
problems related to air carriers which may happen to be owned or
controlled by foreign corporations or persons. AIR21 is contained in
Title 49, Subtitle VII, Part A, of the United States Code. While AIR21
contains a definition of “contractor,” it does not contain
a definition of “air carrier” and so the general
definitions applicable to Part A contained in Subpart 1 apply. The
terms “air carrier” and “foreign air carrier”
are separately defined by statute at 49 U.S.C. 40102(a)(2) (“air
carrier”) and 49 U.S.C. 40102(a)(21) (“foreign air
carrier”), and the general definition of air carrier is set forth
in the AIR21 rule. OSHA has no authority to define the terms otherwise.
The NWC also stated that the definition of the term
“contractor” should be further explained to ensure that the
definition include all contractors which perform, directly or
indirectly, any function whatsoever which may have safety implications,
and that safety-sensitive functions specifically include security
related activities. The NWC suggested that the definition of
“safety-sensitive” should include persons who work for
[[Page 14102]]
contractors who are in a position to witness and or identify the
misconduct of other employees or contractors as opposed to reporting
only on the employee's own employer. OSHA agrees that “safety-
sensitive functions” include security-related activities, but
believes that the definition as written is adequate.
The AFA commented that the terms “contractors,
subcontractors, or agents or air carriers” be added to the
definition of “person.” The term “person” is
included in the definitions because it is used variously in the statute
to mean both organizations and individuals. The definition describes
what type of legal entities may be included in the term
“person.”
Section 1979.102 Obligations and Prohibited Acts
This section describes the whistleblower activity which is
protected under the Act and the type of conduct which is prohibited in
response to any protected activity.
The NWC commented that §&thnsp;1979.102(b) should explicitly
include reports of security violations or reports of security
weaknesses made to the employer or a law enforcement agency in the
definition of protected activity. OSHA believes that the regulation
appropriately sets forth the statutory definition of protected
activity, which includes providing “information relating to any
violation or alleged violation of any order, regulation, or standard of
the Federal Aviation Administration or any other provision of Federal
law relating to air carrier safety under this subtitle or any other law
of the United States.” Therefore, OSHA does not believe that the
additional language requested is necessary.
The AFA suggested that the words “actively or
passively” be added to §&thnsp;1979.102(b) to clarify that
all forms of discrimination, whether active or passive, are violations
of the Act. The AFA also recommended that the words “actual or
constructive” be added before the word “knowledge” in
§&thnsp;1979.102(b)(1) and (2) to prevent an employer from making
a “don't want to know” plausible deniability argument to
escape accountability for violating the Act. OSHA considers that
extensive case law exists involving analogous language in other
employee protection statutes. Therefore, OSHA anticipates that similar
interpretations would be applied under AIR21.
The NWC recommended that §&thnsp;1979.102(c) be further
defined, in order to prevent a chilling effect on employee disclosures,
by stating that the term “deliberate” does not apply to
unintentional conduct. There is case law involving analogous provisions
of other employee protection statutes defining the phrase
“deliberate violations” for purposes of denying protection
to an employee who causes a violation of applicable safety laws. See,
e.g., Fields v. United States Department of Labor Administrative Review
Board, 173 F.3d 811, 814 (11th Cir. 1999) (“petitioners moved
knowingly and dangerously beyond their authority when, on their own,
and fully aware that their employer would not approve, they conducted
experiments inherently fraught with danger”). We anticipate that
a similar construction of that term would be applied under AIR21.
Section 1979.103 Filing of Discrimination Complaint
This section explains the requirements for filing a discrimination
complaint. Under AIR21, to be timely a complaint must be filed within
90 days of the alleged violation. Under Delaware State College v.
Ricks, 449 U.S. 250, 258 (1980), this date is considered to be when the
discriminatory decision has been both made and communicated to the
complainant. In other words, the limitations period commences once the
employee is aware or reasonably should be aware of the employer's
decision. Equal Employment Opportunity Commission v. United Parcel
Service, 249 F.3d 557, 561–62 (6th Cir. 2001). Under
§&thnsp;1979.103(a), complaints may be made by any person on the
employee's behalf with the consent of the employee.
Section 1979.103(b) of the interim rule permitted complaints to be
made both in writing and orally. The rule has been changed to require
that complaints be made in writing, which shall include a full
statement of the acts and omissions alleged to constitute the
violation, in accordance with the procedures for filing whistleblower
complaints under several other employee protection provisions for which
the Secretary of Labor has delegated the responsibility for enforcement
to OSHA. Complaints still do not need to be made in accordance with any
particular form. However, because of difficulty encountered in the
processing of oral complaints, OSHA has determined that the process for
filing full complaints in writing codified at 29 CFR 24.3(c) should
apply to whistleblower complaints filed under AIR21.
The AFA commented that §&thnsp;1979.103(c) should be changed
to include the Federal Aviation Administration as a place where
complaints may be sent because the FAA website advised that
whistleblower complaints may be filed with the FAA. Similarly, the NWC
proposed that §&thnsp;1979.103.(c), (d) and (e) should make clear
that whistleblower complaints filed with other agencies should be
deemed timely filed, particularly when the underlying safety concern
was originally directed to the other agency. The NWC also commented
that an internal whistleblower complaint to the employer should also
act to toll the AIR21 statute of limitations. OSHA wants to make clear
in the regulations that claims should preferably be filed with OSHA.
However, as noted in OSHA's Whistleblower Investigations Manual (OSHA
Instruction DIS 0–0.8), it is OSHA's policy, as supported by case
law, that complaints timely filed by mistake with the FAA or other
agency not having the authority to grant relief to the whistleblower
may be considered timely filed with OSHA. The reference to filing with
“any Department of Labor officer or employee” has been
changed to “any OSHA officer or employee” to make the rule
consistent with other whistleblower rules administered by OSHA.
The ATA commented that §&thnsp;1979.103(e) should be deleted
in its entirety because OSHA states no legal authority for the
provision, individuals may intentionally file under one statute and not
the other, and the section is vague because it does not make clear
which statutory process OSHA will follow. The purpose of
§&thnsp;1979.103(e) is to make clear to the regulated community
that OSHA reserves the right to investigate any whistleblower claim
that properly falls under OSHA's purview. Section 11(c) of the
Occupational Safety and Health Act (“OSH Act”) provides
employment protection for employees who exercise certain rights under
the OSH Act, principal among them being the right to file an
occupational safety and health complaint with OSHA within 30 days of
the alleged violation. Section 11(c), unlike STAA and ERA, does not
provide for an administrative determination of the merits of a
complaint by the Secretary; instead, the Secretary of Labor may seek to
bring an action in Federal District Court to enforce the whistleblower
protection provision of the OSH Act. Section 1979.103(e), which is
comparable to a provision in the STAA regulations (see
§&thnsp;1978.102(e)), puts the community on notice that OSHA
considers all complaints filed with it as potential complaints under
Section 11(c) if it should turn out in the course of the investigation
that the underlying
[[Page 14103]]
protected safety or health activity falls under OSHA's authority rather
than that of the FAA. The final rule also clarifies that the
requirements of Section 11(c) necessarily apply to complaints that OSHA
treats as having been filed under the OSH Act, and that the
requirements of AIR21 apply to complaints that OSHA treats as having
been filed under AIR21.
Section 1979.104 Investigation
AIR21 contains a requirement similar to the requirement in the ERA
that a complaint shall be dismissed if it fails to make a prima facie
showing that protected behavior or conduct was a contributing factor in
the unfavorable personnel action alleged in the complaint. Also
included in this section is the AIR21 requirement that an investigation
of the complaint will not be conducted if the named person demonstrates
by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of the complainant's
protected behavior or conduct, notwithstanding the prima facie showing
of the complainant. Under this section, the named person has the
opportunity within 20 days of receipt of the complaint to meet with
representatives of OSHA and present evidence in support of his or her
position.
If, upon investigation, OSHA has reasonable cause to believe that
the named person has violated the Act and therefore that preliminary
relief for the complainant is warranted, OSHA again contacts the named
person with notice of this determination and provides the substance of
the relevant evidence upon which that determination is based,
consistent with the requirements of confidentiality of informants. The
named person is afforded the opportunity, within ten business days, to
provide written evidence in response to the allegation of the
violation, meet with the investigators, and present legal and factual
arguments why preliminary relief is not warranted. This provision
provides due process procedures in accordance with the Supreme Court
decision under STAA in Brock v. Roadway Express, Inc., 481 U.S. 252
(1987). In addition, we clarified that the ten-day time period refers
to ten business days. This is consistent with the Federal Rules of
Civil Procedure 6(a), which excludes from the computation of the period
of time intermediate Saturdays, Sundays, and legal holidays, when the
period of time prescribed or allowed is less than 11 days.
In a comment submitted by the AFA, it was suggested that
§&thnsp;1979.104(a) be revised to require the Assistant Secretary
to notify both the named person and the complainant of the filing of
the complaint and their rights under the Act. However, the statutory
language only requires that the named person be notified in writing. As
a matter of policy, OSHA does acknowledge receipt of the complaint in
writing back to the complainant.
The ATA commented that §&thnsp;1979.104.(b) should be modified
to make clear that if OSHA initiates an investigation, but later
concludes that the complainant has failed to establish a prima facie
case or that the respondent has rebutted the prima facie case, the
agency should terminate the investigation. This comment misapprehends
OSHA's practice and the intent of the rule. If, at any point in the
investigation, it becomes clear that a prima facie showing cannot be
established or that the evidence otherwise reveals that the complaint
lacks merit, OSHA will dismiss the complaint.
The TTD, NWC, AFA, and Senator Grassley all commented that
§&thnsp;1979.104(b)(1)(iv) and (b)(2) should be changed to more
accurately reflect the language of the statute in describing the
complainant's burden of proof. The commenters felt that the use of the
word “likely” effectively changed the intent of the
statutory language placing on the complainant the burden to demonstrate
that the protected activity “was a contributing factor in the
unfavorable personnel action alleged in the complaint.” OSHA
agrees that the language of the interim rule could be construed to
alter or otherwise inaccurately reflect the language of the statute,
and has changed it by deleting the word “likely.”
The AFA suggested that §&thnsp;1979.104(c) be changed to
require the Assistant Secretary to share documents submitted by the
named person with the complainant and to allow the complainant to be
present during the initial meeting with the named person, if requested.
OSHA believes that, consistent with other whistleblower laws, the
language of the statute is clear that the initial investigation by OSHA
is to be conducted independently for the purpose of establishing the
factual circumstances and facilitating an early resolution of the
claim.
The ATA recommended that §&thnsp;1979.104(c) be changed to
lengthen the named person's response time from ten days to 30 days. ATA
felt that ten days is not enough time to research and provide an
appropriate response that is substantial enough to make the required
demonstration by “clear and convincing evidence.” OSHA
agrees that ten days may frequently be a very short time to effectively
research and prepare a response. However, because the statute provides
only 60 days for OSHA to complete the entire investigation and issue
findings, OSHA believes that allowing half that time for submitting an
initial response will impede its ability to complete the investigation
in a timely manner. The final rule is changed to permit 20 days for
submitting an initial response and a request for a meeting, which is
also consistent with other whistleblower statutes having a 60-day
investigation time frame.
The AFA suggested that §&thnsp;1979.104(d) be modified to
delete the words, “other than the complainant” from the
last sentence to ensure confidentiality for all persons, including the
complainant. This rule is intended to affirmatively provide for the
protection of the identity of persons who come forward to OSHA to
provide information or testimony relevant to OSHA's investigation of
the whistleblower complaint. The phrase is not intended to limit or
restrict in any way OSHA's ability to appropriately withhold
information or documentation provided by the complainant which would
ordinarily be exempt from disclosure under the provisions of the
Freedom of Information Act.
The AFA also suggested that §&thnsp;1979.104(e) be changed to
require that when the Assistant Secretary concludes that reinstatement
is warranted, the complainant, as well as the named person, be
contacted to give notice of the substance of the evidence supporting
the complainant's claim and an opportunity to be present in any
subsequent meeting. The NWC recommended that §&thnsp;1979.104(e)
be deleted in its entirety because a second review of the respondent's
position unnecessarily delays the investigation. As noted above, it is
OSHA's position that OSHA's investigation is conducted independently
prior to the administrative hearing phase of the process, in which all
parties participate fully. The purpose of §&thnsp;1979.104(e) is
to ensure compliance with the Supreme Court's ruling in Brock v.
Roadway Express, Inc., 107 S. Ct. 1740 (1987), in which the court, on a
constitutional challenge to the temporary reinstatement provision in
the employee protection provisions of the Surface Transportation
Assistance Act (now codified at 49 U.S.C. 31105), upheld the facial
constitutionality of the statute and the procedures adopted by OSHA
under the Due Process Clause of the Fifth Amendment, but ruled that the
record
[[Page 14104]]
failed to show that OSHA investigators had informed Roadway of the
substance of the evidence to support reinstatement of the discharged
employee.
Section 1979.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue a finding
regarding whether or not the complaint has merit. If the finding is
that the complaint has merit, the Assistant Secretary will order
appropriate preliminary relief. The letter accompanying the findings
and order advises the parties of their right to file objections to the
findings of the Assistant Secretary. 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 findings 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 language of §&thnsp;1979.105(c) has been changed to
explain this process without repeating the discussion in
§&thnsp;1979.106(b).
The AFA commented that §&thnsp;1979.105(a) should be modified
to require the awarding of attorney's fees to the complainant and to
provide only to the complainant a written summary of the relevant facts
obtained when a complaint is dismissed. OSHA believes that it is
obligated under the law to provide written findings to both parties
regardless of the outcome of the investigation. OSHA agrees that the
statutory language requires the Secretary to award reasonable
attorney's fees, and the language of the regulation has been changed
accordingly.
The ATA commented that §&thnsp;1979.105(a) should be modified
to make clear that OSHA should not order preliminary reinstatement of
an employee involved in air carrier operations if the individual poses
a safety risk to employees or passengers. The ATA felt that it was
possible in certain situations that OSHA might reasonably conclude that
a complainant should be reinstated, but that the complainant's return
to work could pose a safety hazard to other employees or the public.
AIR21 only permits issuance of a preliminary order granting
reinstatement if there is reasonable cause to believe that a violation
has occurred. Section 1979.104(e) provides opportunities for the named
person to present evidence to OSHA that the complainant would have been
discharged even in the absence of his or her protected activity. Where
the named party establishes that the complainant would have been
discharged even absent the protected activity, there would be no
reasonable cause to believe that a violation has occurred. Therefore, a
preliminary restatement order would not be issued.
Furthermore, a preliminary order of reinstatement would not be an
appropriate remedy where, for example, the named party establishes that
the complainant is, or has become, a security risk based upon
information obtained after the complainant's discharge in violation of
AIR21's employee protection provision. See McKennon v. Nashville Banner
Publishing Co., 513 U.S. 352, 360–62 (1995), in which the Supreme
Court recognized that reinstatement would not be an appropriate remedy
for discrimination under the Age Discrimination in Employment Act
where, based upon after-acquired evidence, the employer would have
terminated the employee upon lawful grounds. The final regulation
explicitly so provides. Moreover, because section 1979.105(a) provides
that the Assistant Secretary's preliminary order will require
reinstatement, along with the other make-whole remedies, “where
appropriate,” we believe that the regulations provide safeguards
that address ATA's legitimate security-risk concerns. Finally, in
appropriate circumstances, in lieu of preliminary reinstatement, OSHA
may order that the complainant receive the same pay and benefits that
he received prior to his termination, but not actually return to work.
Such “economic reinstatement” frequently is employed in
cases arising under section 105(c) of the Federal Mine Safety and
Health Act of 1977. See, e.g., Secretary of Labor on behalf of York v.
BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020 **1 (June 26,
2001).
The AFA suggested that §&thnsp;1979.105(b) should be changed
to require the named person to produce proof of attorney's fees and to
provide the evidence directly to the complainant in cases where OSHA
finds that a complaint is frivolous or brought in bad faith. The NWC
commented that such sanctions against the complainant should not be
available during the investigation phase. In consideration of the
comments presented and OSHA's own re-evaluation of the statutory
language, OSHA has deleted the paragraph delegating to OSHA
responsibility for assessing attorney's fees up to $1,000 during the
investigation phase for complaints frivolously filed or filed in bad
faith (§&thnsp;1979.105(b)). The remaining paragraphs of this
section have been renumbered. The named person may seek attorney's fees
for complaints filed frivolously or in bad faith in the administrative
law judge proceeding as provided in §&thnsp;1979.106(a). Such
attorney's fees may be sought for fees incurred during the
investigation of a frivolous complaint, even where the Assistant
Secretary finds no merit to the complaint and the complainant does not
file any objection to the determination. See §&thnsp;1979.105(b)
and §&thnsp;1979.109(b). The named person also may seek attorney's
fees as provided in §&thnsp;1979.110(a), in a petition for review
by the Board. See §&thnsp;1979.110(e).
Section 1979.106 Objections to the Findings and the Preliminary
Order
To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, Washington, D.C.
within 30 days of receipt of the findings. The date of the postmark,
facsimile transmittal, or e-mail communication is considered the date
of the filing. The filing of objections is also considered a request
for a hearing before an ALJ. The language of §&thnsp;1979.106(b)
has been changed to explain the effect of the timely filing of
objections on the preliminary order without repeating the discussion in
§&thnsp;1979.105(c).
The NWC commented that in §&thnsp;1979.106(a) the requirement
that a party needs to file “objections” at the time a
request for hearing is filed should be deleted. The basis for the
comment was that other whistleblower regulations do not require it and
that unnecessary litigation may result over the adequacy of the
objections rather than the merits of the case. OSHA has considered this
concern and believes that the rules as drafted are correct and
consistent with the language of the statute. It is not expected that a
party's list of objections needs to be exhaustive at the time of the
initial request for hearing. A named person may seek attorney's fees
for the filing of a frivolous complaint or a complaint filed in bad
faith when filing any objections and a request for a hearing.
The NWC also felt that §&thnsp;1979.106(b)(1) should require
that all of the remedies of a preliminary order be immediately
effective, rather than just the reinstatement portion, when the
employee prevails at the investigative stage. OSHA believes that such
an interpretation is clearly inconsistent with the statutory language
which states that objections shall not operate to stay any
reinstatement remedy contained in the preliminary order.
[[Page 14105]]
Section 1979.107 Hearings
This section adopts the rules of practice of the Office of
Administrative Law Judges at 29 CFR Part 18, Subpart A. In order to
assist in obtaining full development of the facts in whistleblower
proceedings, formal rules of evidence do not apply. The section
specifically provides for consolidation of hearings if both the
complainant and the named person object to the findings and order of
the Assistant Secretary.
The ALPA commented that a new subsection should be added to
§&thnsp;1979.107 setting forth the standard of proof to be used by
the administrative law judges at hearing. OSHA believes that the
statute clearly sets forth the criteria for determination by the
Secretary, and additional clarification is not necessary.
Section 1979.108 Role of Federal Agencies
The ERA and STAA regulations provide two different models for
agency participation in administrative proceedings. Under STAA, OSHA
ordinarily prosecutes cases where a complaint has been found to be
meritorious. Under ERA and the other environmental whistleblower
statutes, on the other hand, OSHA does not ordinarily appear as a party
in the proceeding. The Department has found that in most environmental
whistleblower cases, parties have been ably represented and the public
interest has not required the Department's participation. Therefore
this provision utilizes the approach of the ERA regulation at 29 CFR
24.6(f)(1). The Assistant Secretary, at his or her discretion, may
participate as a party or amicus curiae at any time in the
administrative proceedings. For example, the Assistant Secretary may
exercise his or her discretion to prosecute the case in the
administrative proceeding before an administrative law judge; petition
for review of a decision of an administrative law judge, including a
decision based on a settlement agreement between complainant and the
named person, regardless of whether the Assistant Secretary
participated before the ALJ; or participate as amicus curiae before the
ALJ or in the Administrative Review Board proceeding. Although we
anticipate that ordinarily the Assistant Secretary will not participate
in AIR21 proceedings, the Assistant Secretary may choose to do so in
appropriate cases, such as cases involving important or novel legal
issues, large numbers of employees, alleged violations which appear
egregious, or where the interests of justice might require
participation by the Assistant Secretary. The FAA, at that agency's
discretion, also may participate as amicus curiae at any time in the
proceedings. The Department believes it is unlikely that its
preliminary decision not to ordinarily prosecute meritorious AIR21
cases will discourage employees from making complaints about air
carrier safety.
Four comments were received regarding §&thnsp;1979.108(a)(1).
The TTD and the AFA commented that the regulation should explicitly
provide that the Assistant Secretary shall act only in the interests of
the complainant at any hearings. The ALPA commented that the Assistant
Secretary should always act as prosecutor at any hearing before the ALJ
or review by the Board. The AFA commented that the Assistant Secretary
should act as prosecutor only at the request of the complainant. And
the ATA supported the section as written and commented that the
Assistant Secretary should limit participation to those few cases that
present issues of such particular legal significance to the agency as
to warrant participation. In consideration of all the comments received
it is OSHA's determination to leave the language of this rule as
written. The Assistant Secretary may participate as a party or may
participate as amicus curiae as he or she may deem necessary or
appropriate.
Section 1979.109 Decision of the Administrative Law Judge
This section sets forth the content of the decision and order of
the administrative law judge, and includes the statutory standard for
finding a violation. The section further provides that the Assistant
Secretary's determination to dismiss the complaint without an
investigation or complete an investigation pursuant to
§&thnsp;1979.104 is not subject to review. Paragraph (a) of this
section has been clarified to state expressly that the Assistant
Secretary's determinations on whether to proceed with an investigation
and to make particular investigative findings are discretionary
decisions not subject to review by the ALJ. The ALJ hears the case on
the merits, and may not remand the matter to the Assistant Secretary to
conduct an investigation or make further factual findings. Paragraph
(c) of this section has been changed to make the ALJ decision effective
ten business days after the date on which it was issued, unless a
timely petition for review has been filed with the Administrative
Review Board, to conform with the change in §&thnsp;1979.110(a),
which provides ten business days instead of “15 days” from
the date of the ALJ decision for the filing of a petition for review.
The AFA commented that §&thnsp;1979.109(b) should be changed
to require the administrative law judge to provide the complainant with
any evidence of the named person's attorney's fees and to formally
advise the complainant that the decision to award fees may be appealed.
OSHA does not believe this language is necessary because the right of
either party to appeal the administrative law judges' decisions is
explained in the subsequent section, to wit, §&thnsp;1979.110.
The NWC commented that §&thnsp;1979.109(c) should be modified
to reflect that the administrative law judges do not have statutory
authority to lift the Assistant Secretary's preliminary order of
reinstatement. OSHA does not believe that the proposed change can be
supported by the language of the statute.
Section 1979.110 Decision of the Administrative Review Board
The decision of the ALJ is the final decision of the Secretary if
no timely petition for review is filed with the Administrative Review
Board. Upon the issuance of the ALJ's decision, the parties may
petition the Board for review of that decision. The date of the
postmark, facsimile transmittal, or e-mail communication will be
considered to be the date of filing; if the petition is filed in
person, by hand-delivery or other means, the petition is considered
filed upon receipt. Paragraph (a) of this section has been modified to
facilitate the review process by stating expressly that the parties
must specifically identify the findings and conclusions to which they
take exception in the petition, or the exceptions are deemed waived by
the parties.
Paragraphs (a) and (b) also have been modified to provide that
appeals to the Board are not a matter of right, but rather petitions
for review are accepted at the discretion of the Board. The Board has
30 days to decide whether to grant the petition for review. If the
Board does not grant the petition, the decision of the ALJ becomes the
final decision of the Secretary. If the Board grants the petition, the
Act requires the Board to issue a decision not later than 120 days
after the date of the conclusion of the hearing before the ALJ. The
conclusion of the hearing is deemed to be the conclusion of all
proceedings before the administrative law judge—i.e., ten
business days after the date of the decision of the administrative law
judge unless a motion for reconsideration has been filed in the
interim. If a timely petition for review is filed with the
[[Page 14106]]
Board, any relief ordered by the ALJ, except for a preliminary order of
reinstatement, is inoperative while the matter is pending before the
Board. This section now further provides that, when the Board accepts a
petition for review, its review of factual determinations will be
conducted under the substantial evidence standard. This standard also
is applied to Board review of ALJ decisions under the whistleblower
provision of STAA. 29 CFR 1978.109(b)(3).
The AFA recommended that §&thnsp;1979.110(a) be changed to
state that a petition for review must be filed with the ARB within ten
days, rather than received by the Board within 15 days to allow either
party sufficient time to file without being penalized by inconsistent
postal delivery. OSHA agrees that, due to the vagaries of postal
delivery, the date of filing as described in this section rather than
the date of the Board's receipt of the petition should be used to
determine whether a petition is timely, and that ten days is sufficient
time to petition for review of an ALJ decision. Only business days
shall be counted in the ten days allowed for filing a petition,
consistent with the Federal Rules of Civil Procedure 6(a), and
paragraph (a) of this section has been changed to clarify the change
from “15” to “ten” days.
The AFA also recommended that §&thnsp;1979.110(c) be changed
to avoid undue delay by providing that the administrative law judge's
decision becomes the final order of the Secretary after 120 days if the
Administrative Review Board fails to act within the 120 days. OSHA
agrees that the procedure for Board review of an ALJ decision should be
modified to avoid delay and prejudice to the parties, and to facilitate
the issuance of a final order of the Secretary as required by the Act.
The modifications to the Board review procedure in paragraphs (a) and
(b) of this section, i.e., discretionary review by the Board, which
shall accept as conclusive ALJ findings of fact that are supported by
substantial evidence, address the concerns expressed by the AFA, and
the recommended change to paragraph (c) of this section is not
necessary.
Section 1979.111 Withdrawal of Complaints, Objections, and
Findings; Settlement
This section provides for the procedures and time periods for
withdrawal of complaints, the withdrawal of findings by the Assistant
Secretary, and the withdrawal of objections to findings. It also
provides for approval of settlements at the investigatory and judicial
stages of the case.
The NWC commented that §&thnsp;1979.111 should be modified to
permit a complainant to freely withdraw his or her complaint without
prejudice. OSHA believes that §&thnsp;1979.111 does permit a
complainant to freely withdraw his or her complaint without prejudice.
The purpose of the Assistant Secretary's approval is to help ensure
that the complainant's withdrawal is, indeed, made freely without
threat of coercion or unlawful promise.
Section 1979.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the Administrative Review Board to submit the record
of proceedings to the appropriate court pursuant to the rules of such
court.
Section 1979.113 Judicial Enforcement
This section describes the Secretary's power under the statute to
obtain judicial enforcement of orders and the terms of a settlement
agreement. It also provides for enforcement of orders of the Secretary
by the person on whose behalf the order was issued.
Section 1979.114 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the Secretary may, upon application and
notice to the parties, waive any rule as justice or the administration
of the Act requires.
The NWC commented that §&thnsp;1979.114 should be deleted in
its entirety because it has no basis in the statutory language. OSHA
believes that the regulation should remain to give the administrative
law judges and the Administrative Review Board the flexibility to take
actions in unusual situations that are not contemplated by the
regulations.
IV. Paperwork Reduction Act
This rule contains a reporting requirement (§&thnsp;1979.103)
which was previously reviewed and approved for use by the Office of
Management and Budget (“OMB”) under 29 CFR 24.3 and
assigned OMB control number 1218–0236 under the provisions of the
Paperwork Reduction Act of 1995 (Pub. L. 104–13).
V. Administrative Procedure Act
This rule is a rule of agency procedure and practice within the
meaning of Section 553 of the Administrative Procedure Act
(“APA”), 5 U.S.C. 553(b)(A). Therefore, publication in the
Federal Register of a notice of proposed rulemaking and request for
comments was not required for these regulations, which provide
procedures for the handling of discrimination complaints. However, 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 rather than
substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be
effective 30 days after publication in the Federal Register is
inapplicable. The Assistant Secretary also finds good cause to provide
an immediate effective date for this rule. It is in the public interest
that the rule be effective immediately so that parties may know what
procedures are applicable to pending cases.
VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995; Small
Business Regulatory Enforcement Fairness Act of 1996; Executive Order
13132.
The Department has concluded that this rule should be treated as a
“significant regulatory action” within the meaning of
Section 3(f)(4) of Executive Order 12866 because AIR21 is a new program
and because of the importance to FAA's airline safety program that
“whistleblowers” be protected from retaliation. E.O. 12866
requires a full economic impact analysis only for “economically
significant” rules, which are defined in Section 3(f)(1) as rules
that may “have an annual effect on the economy of $100 million or
more, or adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities.” Because the rule is
procedural in nature, it is not expected to have a significant economic
impact; therefore no economic impact analysis has been prepared. For
the same reason, the rule does not require a Section 202 statement
under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.).
Furthermore, because this is a rule of agency procedure or practice, it
is not a “rule” within the meaning of the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), and
does not require Congressional review. Finally, this rule does not have
“federalism implications.” The rule does not have
“substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and
[[Page 14107]]
responsibilities among the various levels of government” and
therefore is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation simply implements procedures necessitated by enactment
of AIR21, in order to allow resolution of whistleblower complaints.
Furthermore, no certification to this effect is required and no
regulatory flexibility analysis is required because no proposed rule
has been issued.
Document Preparation: This document was prepared under the
direction and control of the Assistant Secretary, Occupational Safety
and Health Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 1979
Administrative practice and procedure, Air carrier safety,
Employment, Investigations, Reporting and recordkeeping requirements,
Whistleblowing.
Signed at Washington, DC this 17th day of March, 2003.
John L. Henshaw,
Assistant Secretary for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble part 1979 of
title 29 of the Code of Federal Regulations is revised to read as
follows:
PART 1979—PROCEDURES FOR THE HANDLING OF DISCRIMINATION
COMPLAINTS UNDER SECTION 519 OF THE WENDELL H. FORD AVIATION
INVESTMENT AND REFORM ACT FOR THE 21ST CENTURY
Subpart A—Complaints, Investigations, Findings and Preliminary
Orders
Sec.
1979.100 Purpose and scope.
1979.101 Definitions.
1979.102 Obligations and prohibited acts.
1979.103 Filing of discrimination complaint.
1979.104 Investigation.
1979.105 Issuance of findings and preliminary orders.
Subpart B—Litigation
1979.106 Objections to the findings and the preliminary order
and request for a hearing.
1979.107 Hearings.
1979.108 Role of Federal agencies.
1979.109 Decision and orders of the administrative law judge.
1979.110 Decision and orders of the Administrative Review
Board.
Subpart C—Miscellaneous Provisions
1979.111 Withdrawal of complaints, objections, and findings;
settlement.
1979.112 Judicial review.
1979.113 Judicial enforcement.
1979.114 Special circumstances; waiver of rules.
Authority: 49 U.S.C. 42121; Secretary of Labor's Order
5–2002, 67 FR 65008 (October 22, 2002).
Subpart A—Complaints, Investigations, Findings and
Preliminary Orders
§&thnsp;1979.100 Purpose and scope.
(a) This part implements procedures under section 519 of the
Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century, 49 U.S.C. 42121 (“AIR21”), which provides for
employee protection from discrimination by air carriers or contractors
or subcontractors of air carriers because the employee has engaged in
protected activity pertaining to a violation or alleged violation of
any order, regulation, or standard of the Federal Aviation
Administration or any other provision of Federal law relating to air
carrier safety.
(b) This part establishes procedures pursuant to AIR21 for the
expeditious handling of discrimination complaints made by employees, or
by persons acting on their behalf. These rules, together with those
rules codified at 29 CFR part 18, set forth the procedures for
submission of complaints under AIR21, investigations, issuance of
findings and preliminary orders, objections to findings and orders,
litigation before administrative law judges, post-hearing
administrative review, and withdrawals and settlements.
§&thnsp;1979.101 Definitions.
Act or AIR21 means section 519 of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, Public Law
106–181, April 5, 2000, 49 U.S.C. 42121.
Air carrier means a citizen of the United States undertaking by any
means, directly or indirectly, to provide air transportation.
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.
Complainant means the employee who filed a complaint under the Act
or on whose behalf a complaint was filed.
Contractor means a company that performs safety-sensitive functions
by contract for an air carrier.
Employee means an individual presently or formerly working for an
air carrier or contractor or subcontractor of an air carrier, an
individual applying to work for an air carrier or contractor or
subcontractor of an air carrier, or an individual whose employment
could be affected by an air carrier or contractor or subcontractor of
an air carrier.
Named person means the person alleged to have violated the Act.
OSHA means the Occupational Safety and Health Administration of the
United States Department of Labor.
Person means one or more individuals, partnerships, associations,
corporations, business trusts, legal representatives, or any group of
persons.
Secretary means the Secretary of Labor or persons to whom authority
under the Act has been delegated.
§&thnsp;1979.102 Obligations and prohibited acts.
(a) No air carrier or contractor or subcontractor of an air carrier
may discharge any employee or otherwise discriminate against any
employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the employee, or any
person acting pursuant to the employee's request, engaged in any of the
activities specified in paragraphs (b)(1) through (4) of this section.
(b) It is a violation of the Act for any air carrier or contractor
or subcontractor of an air carrier to intimidate, threaten, restrain,
coerce, blacklist, discharge or in any other manner discriminate
against any employee because the employee has:
(1) Provided, caused to be provided, or is about to provide (with
any knowledge of the employer) or cause to be provided to the air
carrier or contractor or subcontractor of an air carrier or the Federal
Government, information relating to any violation or alleged violation
of any order, regulation, or standard of the Federal Aviation
Administration or any other provision of Federal law relating to air
carrier safety under subtitle VII of title 49 of the United States Code
or under any other law of the United States;
(2) Filed, caused to be filed, or is about to file (with any
knowledge of the employer) or cause to be filed a proceeding relating
to any violation or alleged violation of any order, regulation, or
standard of the Federal Aviation Administration or any other provision
of Federal law relating to air carrier safety under subtitle VII of
title 49 of the United States Code, or under any other law of the
United States;
(3) Testified or is about to testify in such a proceeding; or
(4) Assisted or participated or is about to assist or participate
in such a proceeding.
[[Page 14108]]
(c) This part shall have no application to any employee of an air
carrier, contractor, or subcontractor who, acting without direction
from an air carrier, contractor, or subcontractor (or such person's
agent) deliberately causes a violation of any requirement relating to
air carrier safety under Subtitle VII Aviation Programs of Title 49 of
the United States Code or any other law of the United States.
§&thnsp;1979.103 Filing of discrimination complaint.
(a) Who may file. An employee who believes that he or she has been
discriminated against by an air carrier or contractor or subcontractor
of an air carrier in violation of the Act may file, or have filed by
any person on the employee's behalf, a complaint alleging such
discrimination.
(b) Nature of filing. No particular form of complaint is required,
except that a complaint must be in writing and should include a full
statement of the acts and omissions, with pertinent dates, which are
believed to constitute the violations.
(c) Place of filing. The complaint should be filed with the OSHA
Area Director responsible for enforcement activities in the
geographical area where the employee resides or was employed, but may
be filed with any OSHA officer or employee. Addresses and telephone
numbers for these officials are set forth in local directories and at
the following Internet address: http://www.osha.gov.
(d) Time for filing. Within 90 days after an alleged violation of
the Act occurs (i.e., when the discriminatory decision has been both
made and communicated to the complainant), an employee who believes
that he or she has been discriminated against in violation of the Act
may file, or have filed by any person on the employee's behalf, a
complaint alleging such discrimination. The date of the postmark,
facsimile transmittal, or e-mail communication will be considered to be
the date of filing; if the complaint is filed in person, by hand-
delivery, or other means, the complaint is filed upon receipt.
(e) Relationship to section 11(c) complaints. A complaint filed
under AIR21 that alleges facts which would constitute a violation of
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), shall be deemed to be a complaint filed under both AIR21 and
section 11(c). Similarly, a complaint filed under section 11(c) that
alleges facts that would constitute a violation of AIR21 shall be
deemed to be a complaint filed under both AIR21 and section 11(c).
Normal procedures and timeliness requirements for investigations under
the respective laws and regulations will be followed.
§&thnsp;1979.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the named person of the filing of the
complaint, of the allegations contained in the complaint, and of the
substance of the evidence supporting the complaint (redacted to protect
the identity of any confidential informants). The Assistant Secretary
will also notify the named person of his or her rights under paragraphs
(b) and (c) of this section and paragraph (e) of §&thnsp;1979.110.
A copy of the notice to the named person will also be provided to the
Federal Aviation Administration.
(b) A complaint of alleged violation will be dismissed unless the
complainant has made a prima facie showing that protected behavior or
conduct was a contributing factor in the unfavorable personnel action
alleged in the complaint.
(1) The complaint, supplemented as appropriate by interviews of the
complainant, must allege the existence of facts and evidence to make a
prima facie showing as follows:
(i) The employee engaged in a protected activity or conduct;
(ii) The named person knew or suspected, actually or
constructively, that the employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was a contributing factor in the unfavorable
action.
(2) For purposes of determining whether to investigate, the
complainant will be considered to have met the required burden if the
complaint on its face, supplemented as appropriate through interviews
of the complainant, alleges the existence of facts and either direct or
circumstantial evidence to meet the required showing, i.e., to give
rise to an inference that the named person knew or suspected that the
employee engaged in protected activity and that the protected activity
was a contributing factor in the unfavorable personnel action. Normally
the burden is satisfied, for example, if the complaint shows that the
adverse personnel action took place shortly after the protected
activity, giving rise to the inference that it was a factor in the
adverse action. If the required showing has not been made, the
complainant will be so advised and the investigation will not commence.
(c) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted if the named person, pursuant to the
procedures provided in this paragraph, demonstrates by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of the complainant's protected behavior
or conduct. Within 20 days of receipt of the notice of the filing of
the complaint, the named person may submit to the Assistant Secretary a
written statement and any affidavits or documents substantiating his or
her position. Within the same 20 days the named person may request a
meeting with the Assistant Secretary to present his or her position.
(d) If the named person fails to demonstrate by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of the behavior protected by the Act,
the Assistant Secretary will conduct an investigation. Investigations
will be conducted in a manner that protects the confidentiality of any
person who provides information on a confidential basis, other than the
complainant, in accordance with 29 CFR part 70.
(e) Prior to the issuance of findings and a preliminary order as
provided for in §&thnsp;1979.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the named person has violated
the Act and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the named person to give notice of the
substance of the relevant evidence supporting the complainant's
allegations as developed during the course of the investigation. This
evidence includes any witness statements, which will be redacted to
protect the identity of confidential informants where statements were
given in confidence; if the statements cannot be redacted without
revealing the identity of confidential informants, summaries of their
contents will be provided. The named person shall be given the
opportunity to submit a written response, to meet with the
investigators to present statements from witnesses in support of his or
her position, and to present legal and factual arguments. The named
person shall present this evidence within ten business days of the
Assistant Secretary's notification pursuant to this paragraph, or as
soon afterwards as the Assistant Secretary and the named
[[Page 14109]]
person can agree, if the interests of justice so require.
§&thnsp;1979.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of filing of the complaint, written findings as to whether or not there
is reasonable cause to believe that the named person has discriminated
against the complainant in violation of the Act.
(1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, he or she will
accompany the findings with a preliminary order providing relief to the
complainant. The preliminary order will include, where appropriate, a
requirement that the named person abate the violation; reinstatement of
the complainant to his or her former position, together with the
compensation (including back pay), terms, conditions and privileges of
the complainant's employment; and payment of compensatory damages.
Where the named person establishes that the complainant is a security
risk (whether or not the information is obtained after the
complainant's discharge), a preliminary order of reinstatement would
not be appropriate. At the complainant's request the order shall also
assess against the named person the complainant's costs and expenses
(including attorney's and expert witness fees) reasonably incurred in
connection with the filing of the complaint.
(2) If the Assistant Secretary concludes that a violation has not
occurred, the Assistant Secretary will notify the parties of that
finding.
(b) The findings and the preliminary order will be sent by
certified mail, return receipt requested, to all parties of record. The
letter accompanying the findings and order will inform the parties of
their right to file objections and to request a hearing, and of the
right of the named person to request attorney's fees from the
administrative law judge, regardless of whether the named person has
filed objections, if the named person alleges that the complaint was
frivolous or brought in bad faith. The letter also will give the
address of the Chief Administrative Law Judge. At the same time, the
Assistant Secretary will file with the Chief Administrative Law Judge,
U.S. Department of Labor, a copy of the original complaint and a copy
of the findings and order.
(c) The findings and the preliminary order shall be effective 30
days after receipt by the named person pursuant to paragraph (b) of
this section, unless an objection and a request for a hearing has been
filed as provided at §&thnsp;1979.106. However, the portion of any
preliminary order requiring reinstatement shall be effective
immediately upon receipt of the findings and preliminary order.
Subpart B—Litigation
§&thnsp;1979.106 Objections to the findings and the preliminary
order and request for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and preliminary order, or a named person alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney's fees, must file any objections and/or a request for a
hearing on the record within 30 days of receipt of the findings and
preliminary order pursuant to paragraph (b) of §&thnsp;1979.105.
The objection or request for attorney's fees and request for a hearing
must be in writing and state whether the objection is to the findings,
the preliminary order, and/or whether there should be an award of
attorney's fees. The date of the postmark, facsimile transmittal, or e-
mail communication will be considered to be the date of filing; if the
objection is filed in person, by hand-delivery or other means, the
objection is filed upon receipt. Objections must be filed with the
Chief Administrative Law Judge, U.S. Department of Labor, Washington,
DC 20001, and copies of the objections must be mailed at the same time
to the other parties of record, the OSHA official who issued the
findings and order, and the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, Washington, DC 20210.
(b)(1) If a timely objection is filed, all provisions of the
preliminary order shall be stayed, except for the portion requiring
preliminary reinstatement. The portion of the preliminary order
requiring reinstatement shall be effective immediately upon the named
person's receipt of the findings and preliminary order, regardless of
any objections to the order.
(2) If no timely objection is filed with respect to either the
findings or the preliminary order, the findings or preliminary order,
as the case may be, shall become the final decision of the Secretary,
not subject to judicial review.
§&thnsp;1979.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted
in accordance with the rules of practice and procedure for
administrative hearings before the Office of Administrative Law Judges,
codified at subpart A, of 29 CFR part 18.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to a judge who
will notify the parties, by certified mail, of the day, time, and place
of hearing. The hearing is to commence expeditiously, except upon a
showing of good cause or unless otherwise agreed to by the parties.
Hearings will be conducted as hearings de novo, on the record.
Administrative law judges shall have broad discretion to limit
discovery in order to expedite the hearing.
(c) If both the complainant and the named person object to the
findings and/or order, the objections will be consolidated and a single
hearing will be conducted.
(d) Formal rules of evidence shall not apply, but rules or
principles designed to assure production of the most probative evidence
shall be applied. The administrative law judge may exclude evidence
which is immaterial, irrelevant, or unduly repetitious.
§&thnsp;1979.108 Role of Federal agencies.
(a)(1) The complainant and the named person shall be parties in
every proceeding. At the Assistant Secretary's discretion, the
Assistant Secretary may participate as a party or may participate as
amicus curiae at any time in the proceedings. This right to participate
shall include, but is not limited to, the right to petition for review
of a decision of an administrative law judge, including a decision
based on a settlement agreement between complainant and the named
person, to dismiss a complaint or to issue an order encompassing the
terms of the settlement.
(2) Copies of pleadings in all cases, whether or not the Assistant
Secretary is participating in the proceeding, must be sent to the
Assistant Secretary, Occupational Safety and Health Administration, and
to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, DC 20210.
(b) The FAA may participate as amicus curiae at any time in the
proceedings, at the FAA's discretion. At the request of the FAA, copies
of all pleadings in a case must be sent to the FAA, whether or not the
FAA is participating in the proceeding.
§&thnsp;1979.109 Decision and orders of the administrative law
judge.
(a) The decision of the administrative law judge will contain
appropriate findings, conclusions, and an order pertaining to the
remedies provided in
[[Page 14110]]
paragraph (b) of this section, as appropriate. A determination that a
violation has occurred may only be made if the complainant has
demonstrated that protected behavior or conduct was a contributing
factor in the unfavorable personnel action alleged in the complaint.
Relief may not be ordered if the named person demonstrates by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of any protected behavior. Neither the
Assistant Secretary's determination to dismiss a complaint without
completing an investigation pursuant to §&thnsp;1979.104(b) nor
the Assistant Secretary's determination to proceed with an
investigation is subject to review by the administrative law judge, and
a complaint may not be remanded for the completion of an investigation
or for additional findings on the basis that a determination to dismiss
was made in error. Rather, if there otherwise is jurisdiction, the
administrative law judge shall hear the case on the merits.
(b) If the administrative law judge concludes that the party
charged has violated the law, the order shall direct the party charged
to take appropriate affirmative action to abate the violation,
including, where appropriate, reinstatement of the complainant to that
person's former position, together with the compensation (including
back pay), terms, conditions, and privileges of that employment, and
compensatory damages. At the request of the complainant, the
administrative law judge shall assess against the named person all
costs and expenses (including attorney's and expert witness fees)
reasonably incurred. If, upon the request of the named person, the
administrative law judge determines that a complaint was frivolous or
was brought in bad faith, the judge may award to the named person a
reasonable attorney's fee, not exceeding $1,000.
(c) The decision will be served upon all parties to the proceeding.
Any administrative law judge's decision requiring reinstatement or
lifting an order of reinstatement by the Assistant Secretary shall be
effective immediately upon receipt of the decision by the named person,
and may not be stayed. All other portions of the judge's order shall be
effective ten business days after the date of the decision unless a
timely petition for review has been filed with the Administrative
Review Board.
§&thnsp;1979.110 Decision and orders of the Administrative Review
Board.
(a) Any party desiring to seek review, including judicial review,
of a decision of the administrative law judge, or a named person
alleging that the complaint was frivolous or brought in bad faith who
seeks an award of attorney's fees, must file a written petition for
review with the Administrative Review Board (“the Board”),
which has been delegated the authority to act for the Secretary and
issue final decisions under this part. The decision of the
administrative law judge shall become the final order of the Secretary
unless, pursuant to this section, a petition for review is timely filed
with the Board. The petition for review must specifically identify the
findings, conclusions or orders to which exception is taken. Any
exception not specifically urged ordinarily shall be deemed to have
been waived by the parties. To be effective, a petition must be filed
within ten business days of the date of the decision of the
administrative law judge. The date of the postmark, facsimile
transmittal, or e-mail communication will be considered to be the date
of filing; if the petition is filed in person, by hand-delivery or
other means, the petition is considered filed upon receipt. The
petition must be served on all parties and on the Chief Administrative
Law Judge at the time it is filed with the Board. Copies of the
petition for review and all briefs must be served on the Assistant
Secretary, Occupational Safety and Health Administration, and on the
Associate Solicitor, Division of Fair Labor Standards, U.S. Department
of Labor, Washington, DC 20210.
(b) If a timely petition for review is filed pursuant to paragraph
(a) of this section, the decision of the administrative law judge shall
become the final order of the Secretary unless the Board, within 30
days of the filing of the petition, issues an order notifying the
parties that the case has been accepted for review. If a case is
accepted for review, the decision of the administrative law judge shall
be inoperative unless and until the Board issues an order adopting the
decision, except that a preliminary order of reinstatement shall be
effective while review is conducted by the Board. The Board will
specify the terms under which any briefs are to be filed. The Board
will review the factual determinations of the administrative law judge
under the substantial evidence standard.
(c) The final decision of the Board shall be issued within 120 days
of the conclusion of the hearing, which shall be deemed to be the
conclusion of all proceedings before the administrative law
judge—i.e., ten business days after the date of the decision of
the administrative law judge unless a motion for reconsideration has
been filed with the administrative law judge in the interim. The
decision will be served upon all parties and the Chief Administrative
Law Judge by mail to the last known address. The final decision will
also be served on the Assistant Secretary, Occupational Safety and
Health Administration, and on the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor, Washington, DC 20210, even
if the Assistant Secretary is not a party.
(d) If the Board concludes that the party charged has violated the
law, the final order shall order the party charged to take appropriate
affirmative action to abate the violation, including, where
appropriate, reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. At the request of the complainant, the Board shall assess
against the named person all costs and expenses (including attorney's
and expert witness fees) reasonably incurred.
(e) If the Board determines that the named person has not violated
the law, an order shall be issued denying the complaint. If, upon the
request of the named person, the Board determines that a complaint was
frivolous or was brought in bad faith, the Board may award to the named
person a reasonable attorney's fee, not exceeding $1,000.
Subpart C—Miscellaneous Provisions
§&thnsp;1979.111 Withdrawal of complaints, objections, and
findings; settlement.
(a) At any time prior to the filing of objections to the findings
or preliminary order, a complainant may withdraw his or her complaint
under the Act by filing a written withdrawal with the Assistant
Secretary. The Assistant Secretary will then determine whether the
withdrawal will be approved. The Assistant Secretary will notify the
named person of the approval of any withdrawal. If the complaint is
withdrawn because of settlement, the settlement shall be approved in
accordance with paragraph (d) of this section.
(b) The Assistant Secretary may withdraw his or her findings or a
preliminary order at any time before the expiration of the 30-day
objection period described in §&thnsp;1979.106, provided that no
objection has yet been filed, and substitute new findings or
preliminary order. The date of the receipt of the substituted findings
or
[[Page 14111]]
order will begin a new 30-day objection period.
(c) At any time before the findings or order become final, a party
may withdraw his or her objections to the findings or order by filing a
written withdrawal with the administrative law judge or, if the case is
on review, with the Board. The judge or the Board, as the case may be,
will determine whether the withdrawal will be approved. If the
objections are withdrawn because of settlement, the settlement shall be
approved in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a
complaint, and before the findings and/or order are objected to or
become a final order by operation of law, the case may be settled if
the Assistant Secretary, the complainant and the named person agree to
a settlement.
(2) Adjudicatory settlements. At any time after the filing of
objections to the Assistant Secretary's findings and/or order, the case
may be settled if the participating parties agree to a settlement and
the settlement is approved by the administrative law judge if the case
is before the judge, or by the Board if a timely petition for review
has been filed with the Board. A copy of the settlement shall be filed
with the administrative law judge or the Board, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the
administrative law judge, or the Board, shall constitute the final
order of the Secretary and may be enforced pursuant to
§&thnsp;1979.113.
§&thnsp;1979.112 Judicial review.
(a) Within 60 days after the issuance of a final order by the Board
under §&thnsp;1979.110, any person adversely affected or aggrieved
by the order may file a petition for review of the order in the United
States Court of Appeals for the circuit in which the violation
allegedly occurred or the circuit in which the complainant resided on
the date of the violation. A final order of the Board is not subject to
judicial review in any criminal or other civil proceeding.
(b) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the administrative law
judge, will be transmitted by the Board to the appropriate court
pursuant to the rules of the court.
§&thnsp;1979.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order or the terms of a settlement
agreement, the Secretary or a person on whose behalf the order was
issued may file a civil action seeking enforcement of the order in the
United States district court for the district in which the violation
was found to have occurred.
§&thnsp;1979.114 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of this
part, or for good cause shown, the administrative law judge or the
Board on review may, upon application, after three days notice to all
parties and interveners, waive any rule or issue any orders that
justice or the administration of the Act requires.
[FR Doc. 03–6792 Filed 3–20–03; 8:45 am]
BILLING CODE 4510–26–U
