[Federal Register Volume 79, Number 64 (Thursday, April 3, 2014)]
[Rules and Regulations]
[Pages 18630-18644]
[FR Doc No: 2014-07380]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1985

[Docket Number: OSHA-2011-0540]

RIN 1218-AC58

Procedures for Handling Retaliation Complaints Under the Employee
Protection Provision of the Consumer Financial Protection Act of 2010

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim Final Rule; request for comments.

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SUMMARY: This document provides the interim final text of regulations
governing the employee protection (or whistleblower) provisions of the
Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-
Frank Wall Street Reform and Consumer Protection Act of 2010 (CFPA).
This rule establishes procedures and time frames for the handling of
retaliation complaints under CFPA, including procedures and time frames
for employee complaints to the Occupational Safety and Health
Administration (OSHA), investigations by OSHA, appeals of OSHA
determinations to an administrative law judge (ALJ) for a hearing de
novo, hearings by ALJs, review of ALJ decisions by the Administrative
Review Board (ARB) (acting on behalf of the Secretary of Labor) and
judicial review of the Secretary's final decision.

DATES: This interim final rule is effective on April 3, 2014. Comments
and additional materials must be

submitted (post-marked, sent or received) by June 2, 2014.

ADDRESSES: You may submit your comments by using one of the following
methods:
    Electronically: You may submit comments and attachments
electronically at: http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for making
electronic submissions.
    Fax: If your submissions, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at<PHONE_NUMBER>.
    Mail, hand delivery, express mail, messenger or courier service:
You may submit your comments and attachments to the OSHA Docket Office,
Docket No. OSHA-2011-0540, U.S. Department of Labor, Room N-2625, 200
Constitution Avenue NW., Washington, DC 20210. Deliveries (hand,
express mail, messenger and courier service) are accepted during the
Department of Labor's and Docket Office's normal business hours, 8:15
a.m.-4:45 p.m., E.T.
    Instructions: All submissions must include the agency name and the
OSHA docket number for this rulemaking (Docket No. OSHA-2011-0540).
Submissions, including any personal information you provide, are placed
in the public docket without change and may be made available online at
http://www.regulations.gov. Therefore, OSHA cautions you about
submitting personal information such as social security numbers and
birth dates.
    Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through the Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.

FOR FURTHER INFORMATION CONTACT: Katelyn Wendell, Program Analyst,
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. This is not a toll-free number. Email<EMAIL_ADDRESS>
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

    The Consumer Financial Protection Act of 2010 (CFPA or the Act),
was enacted as Title X of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (Dodd-Frank Act), Public Law 111-203,
124 Stat. 1376, on July 21, 2010. The Act established the Bureau of
Consumer Financial Protection (Bureau) as an independent bureau within
the Federal Reserve System and gave the Bureau the power to regulate
the offering and provision of consumer financial products or services
under more than a dozen Federal consumer financial laws. The laws
subject to the Bureau's jurisdiction include, among others, CFPA, the
Consumer Leasing Act of 1976 (15 U.S.C. 1667 et seq.), the Equal Credit
Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Credit Billing Act
(15 U.S.C. 1666 et seq.), the Fair Debt Collection Practices Act (15
U.S.C. 1692 et seq.), the Home Mortgage Disclosure Act of 1975 (12
U.S.C. 2801 et seq.), the Real Estate Settlement Procedures Act of 1974
(12 U.S.C. 2601 et seq.), and the Truth in Lending Act (15 U.S.C. 1601
et seq.). The regulations to be enforced by the Bureau include certain
regulations issued by seven ``transferor agencies,'' including the
Board of Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation, the Federal Trade Commission, the National
Credit Union Administration, the Office of the Comptroller of the
Currency, the Office of Thrift Supervision, and the Department of
Housing and Urban Development. The Bureau also has concurrent authority
to enforce the Telemarketing Sales Rule issued by the Federal Trade
Commission. The Bureau published an initial list of such rules and
regulations. See 76 FR 43569-71 (July 21, 2011). It has also revised
and republished many of these regulations, and announced its intention
to continue doing so. See, e.g., Streamlining Inherited Regulations, 76
FR 75825 (Dec. 5, 2011); Final Rule, Disclosure and Delivery
Requirements for Copies of Appraisals and Other Written Valuations
Under the Equal Credit Opportunity Act (Regulation B), 78 FR 7216,
7218-7219 (Jan. 31, 2013) (noting Bureau's issuance of five new
regulations governing the mortgage industry).
    The Bureau also has authority to issue and enforce new rules,
orders, standards and prohibitions which will apply to banks and other
covered persons who provide consumer financial products and services as
defined in the CFPA, in addition to the existing Federal consumer
financial protection laws and regulations listed above. These include,
but are not limited to, providers of the following consumer financial
products or services: (1) Residential mortgage loan origination,
brokerage, and servicing, modification and foreclosure relief services;
(2) private education loans; (3) payday loans; (4) consumer debt
collection; (5) consumer credit reporting; (6) finance companies,
consumer lending, and loan servicing and brokerage; (7) money
transmitting and check cashing services; (8) prepaid card services; (9)
debt relief services, and (10) any service provider or affiliate which
is related to such an entity.
    More information about the Bureau, its jurisdiction, and the laws
and regulations it enforces is available at its Web site, http://www.consumerfinance.gov/the-bureau.
    Section 1057 of the Dodd-Frank Act, codified at 12 U.S.C. 5567 and
referred to throughout these interim final rules as CFPA, provides
protection to covered employees, and authorized representatives of such
employees, against retaliation because they provided information to
their employer, to the Bureau, or to any other Federal, State, or local
government authority or law enforcement agency relating to any
violation of (or any act or omission that the employee reasonably
believes to be a violation of) any provision of the Act or any other
provision of law that is subject to the jurisdiction of the Bureau, or
any rule, order, standard, or prohibition prescribed by the Bureau;
testified or will testify in any proceeding resulting from the
administration or enforcement of any provision of the Act or any other
provision of law that is subject to the jurisdiction of the Bureau, or
any rule, order, standard, or prohibition prescribed by the Bureau;
filed, instituted, or caused to be filed or instituted any proceeding
under any Federal consumer financial law; or objected to, or refused to
participate in, any activity, policy, practice, or assigned task that
the employee (or other such person) reasonably believed to be in
violation of any law, rule, order, standard, or prohibition, subject to
the jurisdiction of, or enforceable by, the Bureau.
    These interim final rules establish procedures for the handling of
whistleblower complaints under CFPA.

II. Summary of Statutory Procedures

    CFPA's whistleblower provisions include procedures that allow a
covered

employee to file a complaint with the Secretary of Labor (Secretary)
within 180 days of the alleged retaliation. Upon receipt of the
complaint, the Secretary must provide written notice to the person or
persons named in the complaint alleged to have violated the Act
(respondent) of the filing of the complaint, the allegations contained
in the complaint, the substance of the evidence supporting the
complaint, and the rights afforded the respondent throughout the
investigation. The Secretary must then, within 60 days of receipt of
the complaint, afford the complainant and respondent an opportunity to
submit a response and meet with the investigator to present statements
from witnesses, and conduct an investigation.
    The 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 it would have
taken the same adverse action in the absence of that activity (see
section 1985.104 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 that requires the respondent to, where appropriate:
take affirmative action to abate the violation; reinstate the
complainant to his or her former position together with the
compensation of that position (including back pay) and restore the
terms, conditions, and privileges associated with his or her
employment; and provide compensatory damages to the complainant, as
well as all costs and expenses (including attorney fees and expert
witness fees) reasonably incurred by the complainant for, or in
connection with, the bringing of the complaint upon which the order was
issued.
    The complainant and the respondent then have 30 days after the date
of receipt of the Secretary's notification in which to file objections
to the findings and/or preliminary order and request a hearing before
an administrative law judge (ALJ). The filing of objections under CFPA
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, CFPA requires the hearing to be conducted
``expeditiously.'' The Secretary then has 120 days after the conclusion
of any hearing in which to issue a final order, which may provide
appropriate relief or deny the complaint. Until the Secretary's final
order is issued, the Secretary, the complainant, and the respondent may
enter into a settlement agreement that terminates the proceeding. Where
the Secretary has determined that a violation has occurred, the
Secretary, where appropriate, will assess against the respondent a sum
equal to the total amount of all costs and expenses, including attorney
and expert witness fees, reasonably incurred by the complainant for, or
in connection with, the bringing of the complaint upon which the
Secretary issued the order. The Secretary also may award a prevailing
employer reasonable attorney fees, not exceeding $1,000, if the
Secretary finds that the complaint is frivolous or has been brought in
bad faith. Within 60 days of the issuance of the final order, any
person adversely affected or aggrieved by the Secretary's final order
may file an appeal with the United States Court of Appeals for the
circuit in which the violation occurred or the circuit where the
complainant resided on the date of the violation.
    CFPA permits the employee to seek de novo review of the complaint
by a United States district court in the event that the Secretary has
not issued a final decision within 210 days after the filing of the
complaint, or within 90 days after the date of receipt of a written
determination. The provision provides that the court will have
jurisdiction over the action without regard to the amount in
controversy and that the case will be tried before a jury at the
request of either party.
    Finally, CFPA provides that except in very limited circumstances,
and notwithstanding any other provision of law, the rights and remedies
provided for in the CFPA whistleblower provision may not be waived by
any agreement, policy, form, or condition of employment, including by
any predispute arbitration agreement, and no predispute arbitration
agreement shall be valid or enforceable to the extent that it requires
arbitration of a dispute arising under CFPA's whistleblower provision.

III. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been written and
organized to be consistent with other whistleblower regulations
promulgated by OSHA to the extent possible within the bounds of the
statutory language of CFPA. Responsibility for receiving and
investigating complaints under CFPA has been delegated to the Assistant
Secretary for Occupational Safety and Health (Assistant Secretary) by
Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012).
Hearings on determinations by the Assistant Secretary are conducted by
the Office of Administrative Law Judges, and appeals from decisions by
ALJs are decided by the ARB. Secretary of Labor's Order No. 2-2012, 77
FR 69378 (Nov. 16, 2012).

Subpart A--Complaints, Investigations, Findings and Preliminary Orders

Section 1985.100 Purpose and Scope
    This section describes the purpose of the regulations implementing
CFPA and provides an overview of the procedures covered by these
regulations.
Section 1985.101 Definitions
    This section includes the general definitions from Section 1002 of
the Dodd-Frank Act, 12 U.S.C. 5481, which are applicable to CFPA's
whistleblower provisions. The Act defines the term ``affiliate'' as
``any person that controls, is controlled by, or is under common
control with another person.'' 12 U.S.C. 5481(1). It defines the term
``consumer'' as ``an individual or an agent, trustee, or representative
acting on behalf of an individual.'' 12 U.S.C. 5481(4).
    The Act defines a ``consumer financial product or service'' to
include a wide variety of financial products or services offered or
provided for use by consumers primarily for personal, family, or
household purposes. See 12 U.S.C. 5481(5), (15). Included within the
definition of consumer financial product or services are residential
mortgage origination, lending, brokerage and servicing, and related
products and services such as mortgage loan modification and
foreclosure relief; private student loans; payday loans; and certain
other financial services such as consumer debt collection, consumer
credit reporting, credit cards and related activities, money
transmitting, check cashing and related activities, prepaid cards, and
debt relief services. See, e.g., Notice and Request for Comment,
Defining Larger Participants in Certain Consumer Financial Products and
Services Markets, 76 FR 38059-62 (June 29, 2011) (Bureau request for
comment

on exercise of jurisdiction over consumer debt collection, consumer
credit reporting, consumer credit and related activities, money
transmitting, check cashing and related activities, prepaid cards, and
debt relief services). More information about the Bureau is available
at its Web site, http://www.consumerfinance.gov/the-bureau.
    The Act defines ``covered person'' as ``any person that engages in
offering or providing a consumer financial product or service'' and
``any affiliate of [such] a person . . . if [the] affiliate acts as a
service provider to such person.'' 12 U.S.C. 5481(6). It defines the
term ``person'' as ``an individual, partnership, company, corporation,
association (incorporated or unincorporated), trust, estate,
cooperative organization, or other entity.'' 12 U.S.C. 5481(19). The
law defines ``service provider'' as ``any person that provides a
material service to a covered person in connection with the offering or
provision by such covered person of a consumer financial product or
service, including a person that--(i) participates in designing,
operating, or maintaining the consumer financial product or service; or
(ii) processes transactions relating to the consumer financial product
or service . . . .'' 12 U.S.C. 5481(26)(A). The term ``service
provider'' does not include a person who solely offers or provides
general business support services or advertising services. 12 U.S.C.
5481(26)(B). Anyone who is a ``service provider'' is also ``deemed to
be a covered person to the extent that such person engages in the
offering or provision of its own consumer financial product or
service.'' 12 U.S.C. 5481(26)(C).
    CFPA defines ``covered employee'' as ``any individual performing
tasks related to the offering or provision of a consumer financial
product or service.'' 12 U.S.C. 5567(b). Consistent with the other
whistleblower protection provisions administered by OSHA, OSHA
interprets the term ``covered employee'' to also include individuals
presently or formerly working for, individuals applying to work for,
and individuals whose employment could be affected by a covered person
or service provider where such individual was performing tasks related
to the offering or provision of a consumer financial product or service
at the time that the individual engaged in protected activity under
CFPA. See, e.g., 29 CFR 1979.101; 29 CFR 1980.101(g); 29 CFR 1981.101;
29 CFR 1982.101(d); 29 CFR 1983.101(h). OSHA believes this
interpretation of the term ``covered employee'' best implements the
broad statutory protections of CFPA, which aim to protect individuals
who perform tasks related to the offering or provision of a consumer
financial product or service from termination or any other form of
retaliation resulting from their protected activity under CFPA.
Section 1985.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under CFPA
and the conduct that is prohibited in response to any protected
activities. As described above, CFPA protects individuals who provide
information to their employer, to the Bureau, or to any other Federal,
State, or local government authority or law enforcement agency relating
to any violation of (or any act or omission that the employee
reasonably believes to be a violation of) any provision of the Act or
any other provision of law that is subject to the jurisdiction of the
Bureau, or any rule, order, standard, or prohibition prescribed by the
Bureau. CFPA also protects individuals who object to, or refuse to
participate in, any activity, policy, practice, or assigned task that
the employee (or other such person) reasonably believes to be in
violation of any law, rule, order, standard, or prohibition, subject to
the jurisdiction of, or enforceable by, the Bureau. More information
about the Bureau is available at its Web site, http://www.consumerfinance.gov/the-bureau.
    In order to have a ``reasonable belief'' under CFPA, a complainant
must have both a subjective, good faith belief and an objectively
reasonable belief that the complained-of conduct violates one of the
listed categories of law. See Sylvester v. Parexel Int'l LLC, ARB No.
07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 2011) (discussing the
reasonable belief standard under analogous language in the Sarbanes-
Oxley Act whistleblower provision, 18 U.S.C. 1514A). The requirement
that the complainant have a subjective, good faith belief is satisfied
so long as the complainant actually believed that the conduct
complained of violated the relevant law, rule, order, standard, or
prohibition. See id. 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.'' Id. at
*12 (internal quotation marks and citation omitted). However, the
complainant need not show that the conduct complained of constituted an
actual violation of law. Pursuant to this standard, an employee's
whistleblower activity is protected where it is based on a reasonable,
but mistaken, belief that a violation of the relevant law has occurred.
Id. at *13.
Section 1985.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation
complaint under CFPA. To be timely, a complaint must be filed within
180 days of when the alleged violation occurs. Under Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be
when the retaliatory decision has been both made and communicated to
the complainant. In other words, the limitations period commences once
the employee is aware or reasonably should be aware of the employer's
decision to take an adverse action. Equal Emp't Opportunity Comm'n v.
United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). The
time for filing a complaint under CFPA 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 an agency other than OSHA within 180
days after an alleged adverse action.
    Complaints filed under CFPA need not be in any particular form.
They may be either oral or in writing. If the complainant is unable to
file the complaint in English, OSHA will accept the complaint in any
language. With the consent of the employee, complaints may be filed by
any person on the employee's behalf.
    OSHA notes that a complaint of retaliation filed with OSHA under
CFPA is not a formal document and need not conform to the pleading
standards for complaints filed in federal district court articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB
No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 25, 2011) (holding that
whistleblower complaints filed with OSHA under analogous provisions in
the Sarbanes-Oxley Act need not conform to federal court pleading
standards). Rather, the complaint filed with OSHA under this section
simply alerts OSHA to the existence of the alleged retaliation and the
complainant's desire that OSHA investigate the complaint. Upon receipt
of the complaint, OSHA is to determine whether the ``complaint,
supplemented as appropriate by interviews of the complainant'' alleges
``the existence of facts and evidence to make a prima facie showing.''
29 CFR 1985.104(e). As explained in section 1985.104(e), if the

complaint, supplemented as appropriate, contains a prima facie
allegation, and the respondent does not show clear and convincing
evidence that it would have taken the same action in the absence of the
alleged protected activity, OSHA conducts an investigation to determine
whether there is reasonable cause to believe that retaliation has
occurred. See 12 U.S.C. 5567(c)(2)(B), 29 CFR 1985.104(e).
Section 1985.104 Investigation
    This section describes the procedures that apply to the
investigation of CFPA complaints. Paragraph (a) of this section
outlines the procedures for notifying the parties and the Bureau of the
complaint and notifying the respondent of its rights under these
regulations. Paragraph (b) describes the procedures for the respondent
to submit its response to the complaint. Paragraph (c) specifies that
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. 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.
    Paragraph (e) of this section sets forth the applicable burdens of
proof. CFPA 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. The 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 required prima facie showing
by raising a non-frivolous allegation of retaliation, the investigation
must be discontinued and the complaint dismissed. See Trimmer v. U.S.
Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the
burden-shifting framework of the Energy Reorganization Act of 1974
(ERA), which is the same as that under CFPA, 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. Thus, OSHA
must dismiss a complaint under CFPA 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 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) (internal quotation marks,
emphasis and citation omitted) (discussing the Whistleblower Protection
Act, 5 U.S.C. 1221(e)(1)); see also Addis v. Dep't of Labor, 575 F.3d
688, 689-91 (7th Cir. 2009) (discussing Marano as applied to analogous
whistleblower provision in the ERA); Clarke v. Navajo Express, Inc.,
ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) (discussing
burdens of proof under analogous whistleblower provision in the Surface
Transportation Assistance Act (STAA)). 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., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May
31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004)) (discussing contributing factor test under the
Sarbanes-Oxley Act of 2002 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 12 U.S.C. 5567(c)(3)(C). 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, 2011 WL 2614326, at *3.
    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. Its purpose
is to ensure compliance with the Due Process Clause of the Fifth
Amendment, as interpreted by the Supreme Court in Brock v. Roadway
Express, Inc., 481 U.S. 252 (1987) (requiring OSHA to give a STAA
respondent the opportunity to review the substance of the evidence and
respond, prior to ordering preliminary reinstatement).
Section 1985.105 Issuance of Findings and Preliminary Orders
    This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of a complaint, written findings regarding whether or not
there is reasonable cause to believe that the complaint has merit. If
the findings are that there is reasonable cause to believe that the
complaint has merit, the Assistant Secretary will order appropriate
relief, including preliminary reinstatement, affirmative action to
abate the violation, back pay with interest, and compensatory damages.
The findings and, where appropriate, preliminary order, advise the
parties of their right to file objections to the findings of the
Assistant Secretary and to request a hearing. The findings and, where

appropriate, the preliminary order, also advise the respondent of the
right to request an award of attorney fees not exceeding $1,000 from
the ALJ, regardless of whether the respondent has filed objections, if
the respondent alleges that the complaint was frivolous or brought in
bad faith. If no objections are filed within 30 days of receipt of the
findings, the findings and any preliminary order of the Assistant
Secretary become the final decision and order of the Secretary. If
objections are timely filed, any order of preliminary reinstatement
will take effect, but the remaining provisions of the order will not
take effect until administrative proceedings are completed.
    In ordering interest on back pay under CFPA, the Secretary has
determined that interest due will be computed by compounding daily the
Internal Revenue Service interest rate for the underpayment of taxes,
which under 26 U.S.C. 6621 is generally the Federal short-term rate
plus three percentage points. The Secretary believes that daily
compounding of interest achieves the make-whole purpose of a back pay
award. Daily compounding of interest has become the norm in private
lending and recently was found to be the most appropriate method of
calculating interest on back pay by the National Labor Relations Board
(NLRB). See Jackson Hosp. Corp. v. United Steel, Paper & Forestry,
Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356
NLRB No. 8, 2010 WL 4318371, at *3-4 (NLRB Oct. 22, 2010).
Additionally, interest on tax underpayments under the Internal Revenue
Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C.
6622(a).
    In ordering back pay, OSHA 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 better serves
the remedial purposes of CFPA by ensuring that employees subjected to
discrimination are truly made whole. See Latino Express, Inc., et al,
359 NLRB No. 44, 2012 WL 6641632 (NLRB Dec. 18, 2012). 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 *2 (``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, ``[i]f a backpay award covering a multi-year
period is posted as income for one 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 multi-year award is posted to one year rather than being
allocated to the appropriate 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
she would have been absent the prohibited retaliation. Should a
complainant be required to suffer the above disadvantages, she would
not truly be in the same position she would be had she not been
subjected to retaliation. As such, the Secretary agrees that requiring
proper SSA allocation better achieves the make-whole purpose of a back
pay award.
    In appropriate circumstances, in lieu of preliminary reinstatement,
OSHA may order that the complainant receive the same pay and benefits
that he or she received prior to termination, but not actually return
to work. Such ``economic reinstatement'' is akin to an order of front
pay and frequently is 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 ex rel.
York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ
June 26, 2001). Front pay has been recognized as a possible remedy in
cases under the whistleblower statutes enforced by OSHA in
circumstances where reinstatement would not be appropriate. See, e.g.,
Moder v. Vill. of Jackson, ARB Nos. 01-095, 02-039, 2003 WL 21499864,
at *10 (ARB June 30, 2003) (under environmental whistleblower statutes,
``front pay may be an appropriate substitute when the parties prove the
impossibility of a productive and amicable working relationship, or the
company no longer has a position for which the complainant is
qualified''); Hobby v. Georgia Power Co., ARB Nos. 98-166, 98-169 (ARB
Feb. 9, 2001), aff'd sub nom. Hobby v. U.S. Dep't of Labor, No. 01-
10916 (11th Cir. Sept. 30, 2002) (unpublished) (noting circumstances
where front pay may be available in lieu of reinstatement but ordering
reinstatement); Michaud v. BSP Transport, Inc., ARB Nos. 97-113, 1997
WL 626849, at *4 (ARB Oct. 9, 1997) (under STAA, front pay appropriate
where employee was unable to work due to major depression resulting
from the retaliation); Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041,
99-042, 00-012, 1996 WL 518592, at *6 (ARB Sept. 6, 1996) (under ERA,
front pay appropriate where employer had eliminated the employee's
position); Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-00049, 2010
WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that while
reinstatement is the ``presumptive remedy'' under Sarbanes-Oxley, front
pay may be awarded as a substitute when reinstatement is
inappropriate). Congress intended that employees be preliminarily
reinstated to their positions if OSHA finds reasonable cause to believe
that they were discharged in violation of CFPA. 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.

Subpart B--Litigation

Section 1985.106 Objections to the Findings and the Preliminary Order
and Requests for a Hearing
    To be effective, objections to the findings of the Assistant
Secretary must be in writing and must be filed with the Chief
Administrative Law Judge, U.S. Department of Labor, within 30 days of
receipt of the findings. The date of the postmark, facsimile
transmittal, or electronic communication transmittal is considered the
date of the filing; if the objection is filed in person, by hand-
delivery or other means, the objection is filed upon receipt. The
filing of objections also is considered a request for a hearing before
an ALJ. Although the parties are directed to serve a copy of their
objections on the other parties of record, as well as the OSHA official
who issued the findings and order, the Assistant Secretary, and the
U.S. Department of Labor's Associate Solicitor for Fair Labor
Standards, the failure to serve copies of the objections on the other
parties of record does not affect the ALJ's jurisdiction to hear and
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31,
2005).
    The timely filing of objections stays all provisions of the
preliminary order, except for the portion requiring reinstatement. A
respondent may file a motion to stay the Assistant Secretary's
preliminary order of reinstatement with the Office of Administrative
Law Judges. However, such a motion will be granted only based on
exceptional circumstances. The Secretary believes that a stay of the
Assistant Secretary's preliminary order of reinstatement under CFPA
would be appropriate only where the respondent can establish the
necessary criteria for equitable injunctive relief, i.e., irreparable
injury, likelihood of success on the merits, a balancing of possible
harms to the parties, and the public interest favors a stay. If no
timely objection to the Assistant Secretary's findings and/or
preliminary order is filed, then the Assistant Secretary's findings
and/or preliminary order become the final decision of the Secretary not
subject to judicial review.
Section 1985.107 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. This section provides that
the hearing is to commence expeditiously, except upon a showing of good
cause or unless otherwise agreed to by the parties. Hearings will be
conducted de novo, on the record. As noted in this section, formal
rules of evidence will not apply, but rules or principles designed to
assure production of the most probative evidence will be applied. The
ALJ may exclude evidence that is immaterial, irrelevant, or unduly
repetitious.
Section 1985.108 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 CFPA. For example, the Assistant Secretary may
exercise his or her discretion to prosecute the case in the
administrative proceeding before an ALJ; petition for review of a
decision of an ALJ, including a decision based on a settlement
agreement between the complainant and the respondent, regardless of
whether the Assistant Secretary participated before the ALJ; or
participate as amicus curiae before the ALJ or in the ARB proceeding.
Although OSHA anticipates that ordinarily the Assistant Secretary will
not participate, the Assistant Secretary may choose to do so in
appropriate cases, such as cases involving important or novel legal
issues, multiple employees, alleged violations that appear egregious,
or where the interests of justice might require participation by the
Assistant Secretary. The Bureau, if interested in a proceeding, also
may participate as amicus curiae at any time in the proceedings.
Section 1985.109 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 CFPA. 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 v. Admin. Review Bd., 514 F.3d 468, 475 n.1 (5th Cir. 2008)
(``The term `demonstrates' [under identical burden-shifting scheme in
the Sarbanes-Oxley whistleblower provision] 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 12 U.S.C. 5567(c)(3)(C).
    Paragraph (c) of this section further provides that OSHA's
determination to dismiss the complaint without an investigation or
without a complete investigation under section 1985.104 is not subject
to review. Thus, section 1985.109(c) clarifies that OSHA's
determinations on whether to proceed with an investigation under CFPA
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 make further factual findings. Paragraph
(d) notes the remedies that the ALJ may order under CFPA and, as
discussed under section 1985.105 above, provides that interest on back
pay will be calculated using the interest rate applicable to
underpayment of taxes under 26 U.S.C. 6621 and will be compounded
daily, and that the respondent will be required to submit appropriate
documentation to the Social Security Administration (SSA) 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, OSHA, 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. If no timely petition for review is filed with the ARB, the
decision of the ALJ becomes the final decision of the Secretary and is
not subject to judicial review.
Section 1985.110 Decision and Orders of the Administrative Review Board
    Upon the issuance of the ALJ's decision, the parties have 14 days
within which to petition the ARB for review of that decision. The date
of the postmark, facsimile transmittal, or electronic communication
transmittal is considered the date of filing of the petition; if the
petition is filed in person, by hand delivery or other means, the
petition is considered filed upon receipt.
    The appeal provisions in this part provide that an appeal to the
ARB is not a matter of right but is accepted at the discretion of the
ARB. The parties should identify in their petitions for review the
legal conclusions or orders to

which they object, or the objections may be deemed waived. The ARB has
30 days to decide whether to grant the petition for review. If the ARB
does not grant the petition, the decision of the ALJ becomes the final
decision of the Secretary. If a timely petition for review is filed
with the ARB, any relief ordered by the ALJ, except for that portion
ordering reinstatement, is inoperative while the matter is pending
before the ARB. When the ARB accepts a petition for review, the ALJ's
factual determinations will be reviewed under the substantial evidence
standard.
    This section also provides that, based on exceptional
circumstances, the ARB may grant a motion to stay an ALJ's preliminary
order of reinstatement under CFPA, 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 CFPA would be
appropriate only where the respondent can establish the necessary
criteria for equitable injunctive relief, i.e., irreparable injury,
likelihood of success on the merits, a balancing of possible harms to
the parties, and the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it
will issue a final order providing relief to the complainant. The final
order will require, where appropriate: Affirmative action to abate the
violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of employment; and payment
of compensatory damages, including, at the request of the complainant,
the aggregate amount of all costs and expenses (including attorney and
expert witness fees) reasonably incurred. Interest on back pay will be
calculated using the interest rate applicable to underpayment of taxes
under 26 U.S.C. 6621 and will be compounded daily, and the respondent
will be required to submit appropriate documentation to the Social
Security Administration (SSA) 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. 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

Section 1985.111 Withdrawal of Complaints, Findings, Objections, and
Petitions for Review; Settlement
    This section provides the procedures and time periods for
withdrawal of complaints, the withdrawal of findings and/or preliminary
orders by the Assistant Secretary, and the withdrawal of objections to
findings and/or orders. It permits complainants to withdraw their
complaints orally, and provides that, in such circumstances, OSHA will
confirm a complainant's desire to withdraw in writing. It also provides
for approval of settlements at the investigative and adjudicative
stages of the case.
Section 1985.112 Judicial Review
    This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the ARB or the ALJ to submit the record of
proceedings to the appropriate court pursuant to the rules of such
court.
Section 1985.113 Judicial Enforcement
    This section describes the Secretary's authority under CFPA to
obtain judicial enforcement of orders and terms of settlement
agreements. CFPA expressly authorizes district courts to enforce orders
issued by the Secretary under 12 U.S.C. 5567. Specifically, the statute
provides that ``[i]f any person has failed to comply with a final order
issued under paragraph (4), 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 have occurred, or in the United States
district court for the District of Columbia, to enforce such order. In
actions brought under this paragraph, the district courts shall have
jurisdiction to grant all appropriate relief including injunctive
relief and compensatory damages.'' 12 U.S.C. 5567(c)(5)(A).
    All orders issued by the Secretary under 12 U.S.C. 5567 may also be
enforced by any person on whose behalf an order was issued in district
court, under 12 U.S.C. 5567(c)(5)(B). The Secretary interprets these
provisions to grant the district court authority to enforce preliminary
orders of reinstatement. Subsection (c)(2)(B) provides that the
Secretary shall order the person who has committed a violation to
reinstate the complainant to his or her former position (12 U.S.C.
5567(c)(2)(B)). Subsection (c)(2)(B) also instructs the Secretary to
accompany any reasonable cause finding that a violation has occurred
with a preliminary order containing the relief prescribed by paragraph
(4)(B), which includes reinstatement, (see 12 U.S.C. 5567(c)(2)(B)).
Subsection (c)(2)(C) declares that any reinstatement remedy contained
in a preliminary order is not stayed upon the filing of objections. 12
U.S.C. 5567(c)(2)(C) (``The filing of such objections shall not operate
to stay any reinstatement remedy contained in the preliminary
order.''). Thus, under the statute, enforceable orders under paragraph
(c)(5) include both preliminary orders issued under subsection
(c)(2)(B), and final orders issued under subsection (c)(4)(A), both of
which may contain the relief of reinstatement as prescribed by
subsection (c)(4)(B).
    This statutory interpretation is consistent with the Secretary's
interpretation of similar language in the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, 49 U.S.C. 42121, and
Section 806 of the Corporate and Criminal Fraud Accountability Act of
2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. 1514A.
See Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor,
Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010);
Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn.
2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d
Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552
(W.D. Va. 2006), (decision vacated, appeal dismissed, No. 06-2295 (4th
Cir. Feb. 20, 2008)).
Section 1985.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth CFPA'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, under certain
circumstances. CFPA permits a complainant to file an action for de novo
review in the appropriate district court if there has been no final
decision of the Secretary within 210 days after the date of the filing
of the complaint, or within 90 days after the date of receipt of a
written determination. 12 U.S.C. 5567(c)(4)(D)(i). ``Written
determination'' refers to the Assistant Secretary's written findings
issued at the close of OSHA's investigation under section 1985.105(a).
See 12 U.S.C. 5567(c)(2)(A)(ii). The Secretary's final decision is
generally the decision of the ARB issued under section 1985.110. In
other words, a complainant may file an action for de novo review in the
appropriate district court in either of the following two
circumstances: (1) A

complainant may file a de novo action in district court within 90 days
of receiving the Assistant Secretary's written findings issued under
section 1985.105(a), or (2) a complainant may file a de novo action in
district court if more than 210 days have passed since the filing of
the complaint and the Secretary has not issued a final decision. The
plain language of 12 U.S.C. 5567(c)(4)(D)(i), by distinguishing between
actions that can be brought if the Secretary has not issued a ``final
decision'' within 210 days and actions that can be brought within 90
days after a ``written determination,'' supports allowing de novo
actions in district court under either of the circumstances described
above.
    However, it is the Secretary's position that complainants may not
initiate an action in federal court after the Secretary issues a final
decision, even if the date of the final decision is more than 210 days
after the filing of the complaint or within 90 days of the
complainant's receipt of the Assistant Secretary's written findings.
Thus, for example, after the ARB has issued a final decision denying a
whistleblower complaint, the complainant no longer may file an action
for de novo review in federal district court. The purpose of the
``kick-out'' provision is to aid the complainant in receiving a prompt
decision. That goal is not implicated in a situation where the
complainant already has received a final decision from the Secretary.
In addition, permitting the complainant to file a new case in district
court in such circumstances could conflict with the parties' rights to
seek judicial review of the Secretary's final decision in the court of
appeals. See 12 U.S.C. 5567(c)(4)(E) (providing that an order with
respect to which review could have been obtained in the court of
appeals shall not be subject to judicial review in any criminal or
other civil proceeding).
    Under CFPA, the Assistant Secretary's written findings become the
final order of the Secretary, not subject to judicial review, if no
objection is filed within 30 days. See 12 U.S.C. 5567(c)(2)(C). Thus, a
complainant may need to file timely objections to the Assistant
Secretary's findings in order to preserve the right to file an action
in district court.
    This section also requires that, within seven days after filing a
complaint in district court, a complainant must provide a file-stamped
copy of the complaint to OSHA, the ALJ, or the ARB, depending on where
the proceeding is pending. A copy of the District Court complaint also
must be provided to the OSHA official who issued the findings and/or
preliminary order, the Assistant Secretary, and the U.S. Department of
Labor's Associate Solicitor for Fair Labor Standards. This provision is
necessary to notify OSHA that the complainant has opted to file a
complaint in district court. This provision is not a substitute for the
complainant's compliance with the requirements for service of process
of the district court complaint contained in the Federal Rules of Civil
Procedure and the local rules of the district court where the complaint
is filed. The section also incorporates the statutory provisions which
allow for a jury trial at the request of either party in a district
court action, and which specify the remedies and burdens of proof in a
district court action.
Section 1985.115 Special Circumstances; Waiver of Rules
    This section provides that in circumstances not contemplated by
these rules or for good cause the ALJ or the ARB may, upon application
and notice to the parties, waive any rule as justice or the
administration of CFPA requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation
complaint, section 1985.103) which was previously reviewed as a
statutory requirement of CFPA and approved for use by the Office of
Management and Budget (OMB), and was assigned OMB control number 1218-
0236 under the provisions of the Paperwork Reduction Act of 1995,
Public Law 104-13, 109 Stat. 163 (1995). A non-material change has been
submitted to OMB to include the regulatory citation.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of Section 553 of the
Administrative Procedure Act (APA) do not apply ``to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency
procedure, practice, and interpretation within the meaning of that
section. Therefore, publication in the Federal Register of a notice of
proposed rulemaking and request for comments are not required for these
regulations, which provide the procedures for the handling of
retaliation complaints. Although this is a procedural rule not subject
to the notice and comment procedures of the APA, OSHA is providing
persons interested in this interim final rule 60 days to submit
comments. A final rule will be published after OSHA receives and
reviews the public's comments.
    Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. OSHA also finds good cause to provide an immediate
effective date for this interim final rule. It is in the public
interest that the rule be effective immediately so that parties may
know what procedures are applicable to pending cases.

VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132

    The Office of Management and Budget has concluded that this rule is
a ``significant regulatory action'' within the meaning of Section
3(f)(4) of Executive Order 12866. Executive Order 12866, reaffirmed by
Executive Order 13563, requires a full economic impact analysis only
for ``economically significant'' rules, which are defined in Section
3(f)(1) of Executive Order 12866 as rules that may ``[h]ave an annual
effect on the economy of $100 million or more, or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities.'' The rule is procedural
and interpretative in nature. Because it simply implements procedures
necessitated by enactment of CFPA, the rule is expected to have a
negligible economic impact. Therefore, no economic impact analysis
under Section 6(a)(3)(C) of Executive Order 12866 has been prepared.
For the same reason, and the fact that no notice of proposed rulemaking
has been published, the rule does not require a Section 202 statement
under the Unfunded Mandates Reform Act of 1995. 2 U.S.C. 1531 et seq.
Finally, this rule does not have ``federalism implications,'' in that
it 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
Administrative Procedure Act (APA) do not apply ``to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or

practice.'' 5 U.S.C. 553(b)(A). 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 1985

    Administrative practice and procedure, Employment, Consumer
financial protection, Investigations, Reporting and recordkeeping
requirements, Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of David
Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational
Safety and Health.

    Signed at Washington, DC on March 21, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1985
is added to read as follows:

PART 1985--PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER THE
EMPLOYEE PROTECTION PROVISION OF THE CONSUMER FINANCIAL PROTECTION
ACT OF 2010

Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1985.100 Purpose and scope.
1985.101 Definitions.
1985.102 Obligations and prohibited acts.
1985.103 Filing of retaliation complaint.
1985.104 Investigation.
1985.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1985.106 Objections to the findings and the preliminary order and
requests for a hearing.
1985.107 Hearings.
1985.108 Role of Federal agencies.
1985.109 Decision and orders of the administrative law judge.
1985.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1985.111 Withdrawal of complaints, findings, objections, and
petitions for review; settlement.
1985.112 Judicial review.
1985.113 Judicial enforcement.
1985.114 District court jurisdiction of retaliation complaints.
1985.115 Special circumstances; waiver of rules.

    Authority:  12 U.S.C. 5567; Secretary of Labor's Order No. 1-
2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of
Labor's Order No. 2-2012, 77 Fed. Reg. 69378 (Nov. 16, 2012).

Subpart A--Complaints, Investigations, Findings, and Preliminary
Orders

Sec.  1985.100  Purpose and scope.

    (a) This part implements procedures of the employee protection
provision of the Consumer Financial Protection Act of 2010, Section
1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act
of 2010 (CFPA or the Act), Public Law 111-203, 124 Stat. 1376, 1955
(July 21, 2010) (codified at 12 U.S.C. 5567). CFPA provides for
employee protection from retaliation because the employee has engaged
in protected activity pertaining to the offering or provision of
consumer financial products or services.
    (b) This part establishes procedures under CFPA for the expeditious
handling of retaliation complaints filed by employees, or by persons
acting on their behalf, and sets forth OSHA's interpretations of CFPA.
These rules, together with those codified at 29 CFR part 18, set forth
the procedures under CFPA for submission of complaints, investigations,
issuance of findings and preliminary orders, objections to findings and
orders, litigation before administrative law judges (ALJs), post-
hearing administrative review, and withdrawals and settlements.

Sec.  1985.101  Definitions.

    As used in this part:
    (a) Affiliate means any person that controls, is controlled by, or
is under common control with another person.
    (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 CFPA.
    (c) Bureau means the Bureau of Consumer Financial Protection.
    (d) Business days means days other than Saturdays, Sundays, and
Federal holidays.
    (e) CFPA means Section 1057 of the Dodd-Frank Wall Street Reform
and Consumer Protection Act of 2010, Public Law 111-203, 124 Stat.
1376, 1955 (July 21, 2010) (codified at 12 U.S.C. 5567).
    (f) Complainant means the person who filed a CFPA complaint or on
whose behalf a complaint was filed.
    (g) Consumer means an individual or an agent, trustee, or
representative acting on behalf of an individual.
    (h) Consumer financial product or service means any financial
product or service that is:
    (1) Described in one or more categories in 12 U.S.C. 5481(15) and
is offered or provided for use by consumers primarily for personal,
family, or household purposes; or
    (2) Described in clause (i), (iii), (ix), or (x) of 12 U.S.C.
5481(15)(A), and is delivered, offered, or provided in connection with
a consumer financial product or service referred to in paragraph (h)(1)
of this section.
    (i) Covered employee means any individual performing tasks related
to the offering or provision of a consumer financial product or
service. The term ``covered employee'' includes an individual presently
or formerly working for, an individual applying to work for, or an
individual whose employment could be affected by a covered person or
service provider where such individual was performing tasks related to
the offering or provision of a consumer financial product or service at
the time that the individual engaged in protected activity under CFPA.
    (j) Covered person means--
    (1) Any person that engages in offering or providing a consumer
financial product or service, or
    (2) Any affiliate of such a person if such affiliate acts as a
service provider to such person, or
    (3) Any service provider to the extent that such person engages in
the offering or provision of its own consumer financial product or
service.
    (k) Federal consumer financial law means any law described in 12
U.S.C. 5481(14).
    (l) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
    (m) Person means an individual, partnership, company, corporation,
association (incorporated or unincorporated), trust, estate,
cooperative organization, or other entity.
    (n) Respondent means the person named in the complaint who is
alleged to have violated the Act.
    (o) Secretary means the Secretary of Labor or person to whom
authority under CFPA has been delegated.
    (p) Service provider means any person that provides a material
service to a

covered person in connection with the offering or provision by such
covered person of a consumer financial product or service, including a
person that--
    (1) Participates in designing, operating, or maintaining the
consumer financial product or service; or
    (2) Processes transactions relating to the consumer financial
product or service (other than unknowingly or incidentally transmitting
or processing financial data in a manner that such data is
undifferentiated from other types of data of the same form as the
person transmits or processes);
    (3) The term ``service provider'' does not include a person solely
by virtue of such person offering or providing to a covered person:
    (i) A support service of a type provided to businesses generally or
a similar ministerial service; or
    (ii) Time or space for an advertisement for a consumer financial
product or service through print, newspaper, or electronic media.
    (q) 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.

Sec.  1985.102  Obligations and prohibited acts.

    (a) No covered person or service provider may terminate or in any
other way retaliate against, or cause to be terminated or retaliated
against, including, but not limited to, intimidating, threatening,
restraining, coercing, blacklisting or disciplining, any covered
employee or any authorized representative of covered employees because
such employee or representative, whether at the employee's initiative
or in the ordinary course of the employee's duties (or any person
acting pursuant to a request of the employee), engaged in any of the
activities specified in paragraphs (b)(1) through (4) of this section.
    (b) A covered employee or authorized representative is protected
against retaliation (as described in paragraph (a) of this section) by
a covered person or service provider because he or she:
    (1) Provided, caused to be provided, or is about to provide or
cause to be provided to the employer, the Bureau, or any other State,
local, or Federal, government authority or law enforcement agency,
information relating to any violation of, or any act or omission that
the employee reasonably believes to be a violation of, any provision of
Title X of the Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010, Public Law 111-203, 124 Stat. 1376, 1955 (July 21, 2010),
or any other provision of law that is subject to the jurisdiction of
the Bureau, or any rule, order, standard, or prohibition prescribed by
the Bureau;
    (2) Testified or will testify in any proceeding resulting from the
administration or enforcement of any provision of Title X of the Dodd-
Frank Wall Street Reform and Consumer Protection Act of 2010, Public
Law 111-203, 124 Stat. 1376, 1955 (July 21, 2010), or any other
provision of law that is subject to the jurisdiction of the Bureau, or
any rule, order, standard, or prohibition prescribed by the Bureau;
    (3) Filed, instituted, or caused to be filed or instituted any
proceeding under any Federal consumer financial law; or
    (4) Objected to, or refused to participate in, any activity,
policy, practice, or assigned task that the employee (or other such
person) reasonably believed to be in violation of any law, rule, order,
standard, or prohibition subject to the jurisdiction of, or enforceable
by, the Bureau.

Sec.  1985.103  Filing of retaliation complaint.

    (a) Who may file. A person who believes that he or she has been
discharged or otherwise retaliated against by any person in violation
of CFPA may file, or have filed by any person on his or her 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 complainant resides or was employed, but may be filed with
any OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
    (d) Time for filing. Within 180 days after an alleged violation of
CFPA occurs, any person who believes that he or she has been retaliated
against in violation of the Act may file, or have filed by any person
on his or her behalf, a complaint alleging such retaliation. The date
of the postmark, facsimile transmittal, electronic communication
transmittal, telephone call, hand-delivery, delivery to a third-party
commercial carrier, or in-person filing at an OSHA office will be
considered the date of filing. The time for filing a complaint may be
tolled for reasons warranted by applicable case law. For example, OSHA
may consider the time for filing a complaint equitably tolled if a
complainant mistakenly files a complaint with an agency other than OSHA
within 180 days after an alleged adverse action.

Sec.  1985.104  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,
and other applicable confidentiality laws. OSHA will also notify the
respondent of its rights under paragraphs (b) and (f) of this section
and Sec.  1985.110(e). OSHA will provide an unredacted copy of these
same materials to the complainant (or the complainant's legal counsel
if complainant is represented by counsel) and to the Bureau.
    (b) Within 20 days of receipt of the notice of the filing of the
complaint provided under paragraph (a) of this section, the respondent
and the complainant each may submit to OSHA a written statement and any
affidavits or documents substantiating its position. Within the same 20
days, the respondent and the complainant each may request a meeting
with OSHA to present its position.
    (c) OSHA will provide to the complainant (or the complainant's
legal counsel if complainant is represented by counsel) a copy of all
of respondent's submissions to OSHA that are responsive to the
complainant's whistleblower complaint at a time permitting the
complainant an opportunity to respond. 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. OSHA will also provide the complainant with an
opportunity to respond to such submissions.
    (d) Investigations will be conducted in a manner that protects the
confidentiality of any person who provides information on a
confidential basis, other than the complainant, in accordance with part
70 of this title.
    (e)(1) A complaint will be dismissed unless the complainant has
made a prima facie showing (i.e. a non-frivolous allegation) 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 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. 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 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 Sec.  1985.105, if OSHA has reasonable cause, on the
basis of information gathered under the procedures of this part, to
believe that the respondent has violated CFPA 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, 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 investigators, to present statements from witnesses in support
of its position, and to present legal and factual arguments. The
respondent must present this evidence within 10 business days of OSHA's
notification pursuant to this paragraph, or as soon thereafter as OSHA
and the respondent can agree, if the interests of justice so require.

Sec.  1985.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during
the investigation, the Assistant Secretary will issue, within 60 days
of the filing of the complaint, written findings as to whether or not
there is reasonable cause to believe that the respondent has retaliated
against the complainant in violation of CFPA.
    (1) If the Assistant Secretary concludes that there is reasonable
cause to believe that a violation has occurred, the Assistant Secretary
will accompany the findings with a preliminary order providing relief
to the complainant. The preliminary order will require, where
appropriate: affirmative action to abate the violation; reinstatement
of the complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney and expert witness
fees) reasonably incurred. Interest on back pay will be calculated
using the interest rate applicable to underpayment of taxes under 26
U.S.C. 6621 and will be compounded daily. The preliminary order will
also require the respondent to submit appropriate documentation to the
Social Security Administration (SSA) 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 ALJ, regardless of
whether the respondent has filed objections, if the respondent alleges
that the complaint was frivolous or brought in bad faith. The findings
and, where appropriate, the preliminary order also will give the
address of the Chief Administrative Law Judge, U.S. Department of
Labor. At the same time, the Assistant Secretary will file with the
Chief Administrative Law Judge a copy of the original complaint and a
copy of the findings and/or order.
    (c) The findings and any preliminary order will be effective 30
days after receipt by the respondent (or the respondent's legal counsel
if the respondent is represented by counsel), or on the compliance date
set forth in the preliminary order, whichever is later, unless an
objection and/or a request for hearing has been timely filed as
provided at Sec.  1985.106. However, the portion of any preliminary
order requiring reinstatement will be effective immediately upon the
respondent's receipt of the findings and the preliminary order,
regardless of any objections to the findings and/or the order.

Subpart B--Litigation

Sec.  1985.106  Objections to the findings and the preliminary order
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the
findings and/or preliminary order, or a respondent alleging that the
complaint was frivolous or brought in bad faith who seeks an award of
attorney fees under CFPA, 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 Sec.  1985.105. The objections, request

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

Sec.  1985.107  Hearings.

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

Sec.  1985.108  Role of Federal agencies.

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

Sec.  1985.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings,
conclusions, and an order pertaining to the remedies provided in
paragraph (d) of this section, as appropriate. A determination that a
violation has occurred may be made only if the complainant has
demonstrated by a preponderance of the evidence that protected activity
was a contributing factor in the adverse action alleged in the
complaint.
    (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 Sec.  1985.104(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 ALJ will issue an order that will require, where appropriate:
affirmative action to abate the violation; reinstatement of the
complainant to his or her former position, together with the
compensation (including back pay and interest), terms, conditions, and
privileges of the complainant's employment; and payment of compensatory
damages, including, at the request of the complainant, the aggregate
amount of all costs and expenses (including attorney and expert witness
fees) reasonably incurred. Interest on back pay will be calculated
using the interest rate applicable to underpayment of taxes under 26
U.S.C. 6621 and will be compounded daily. The order will also require
the respondent to submit appropriate documentation to the Social
Security Administration (SSA) 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 ALJ 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 reinstatement by the Assistant
Secretary will be effective immediately upon receipt of the decision by
the respondent. All other portions of the ALJ's order will be effective
14 days after the date of the decision unless a timely petition for
review has been filed with the Administrative Review Board (ARB), U.S.
Department of Labor. The 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.

Sec.  1985.110  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 that order based on
exceptional circumstances. The ARB will specify the terms under which
any briefs are to be filed. The ARB will review the factual
determinations of the ALJ under the substantial evidence standard. If
no timely petition for review is filed, or the ARB denies review, the
decision of the ALJ will become the final order of the Secretary. If no
timely petition for review is filed, the resulting final order is not
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of
the conclusion of the hearing, which will be deemed to be 14 days after
the decision of the ALJ, unless a motion for reconsideration has been
filed with the ALJ in the interim. In such case, the conclusion of the
hearing is the date the motion for reconsideration is ruled upon or 14
days after a new decision is issued. The ARB's final decision will be
served upon all parties and the Chief Administrative Law Judge by mail.
The final decision will also be served on the Assistant Secretary and
on the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law,
the ARB will issue a final order providing relief to the complainant.
The final order will require, where appropriate: Affirmative action to
abate the violation; reinstatement of the complainant to his or her
former position, together with the compensation (including back pay and
interest), terms, conditions, and privileges of the complainant's
employment; and payment of compensatory damages, including, at the
request of the complainant, the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred. Interest on back pay will be calculated using the interest
rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will
be compounded daily. The order will also require the respondent to
submit appropriate documentation to the Social Security Administration
(SSA) 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

Sec.  1985.111  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 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 Sec.  1985.106, provided that no
objection has been filed yet, and substitute new findings and/or a new
preliminary order. The date of the receipt of the substituted findings
or order will begin a new 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, but 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 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 Sec.  1985.113.

Sec.  1985.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under
Sec. Sec.  1985.109 and 1985.110, 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.

Sec.  1985.113  Judicial enforcement.

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

Sec.  1985.114  District court jurisdiction of retaliation complaints.

    (a) The complainant may bring an action at law or equity for de
novo review in the appropriate district court of the United States,
which will have jurisdiction over such an action without regard to the
amount in controversy, either:
    (1) Within 90 days after receiving a written determination under
Sec.  1985.105(a) provided that there has been no final decision of the
Secretary; or
    (2) If there has been no final decision of the Secretary within 210
days of the filing of the complaint.
    (b) At the request of either party, the action shall be tried by
the court with a jury.
    (c) A proceeding under paragraph (a) of this section shall be
governed by the same legal burdens of proof specified in Sec.
1985.109. The court shall have jurisdiction to grant all relief
necessary to make the employee whole, including injunctive relief and
compensatory damages, including:
    (1) Reinstatement with the same seniority status that the employee
would have had, but for the discharge or discrimination;
    (2) The amount of back pay, with interest;
    (3) Compensation for any special damages sustained as a result of
the discharge or discrimination; and
    (4) Litigation costs, expert witness fees, and reasonable attorney
fees.
    (d) 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.

Sec.  1985.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of
these rules, or for good cause shown, the ALJ or the ARB on review may,
upon application, after three days notice to all parties, waive any
rule or issue such orders that justice or the administration of CFPA
requires.

[FR Doc. 2014-07380 Filed 4-2-14; 8:45 am]
BILLING CODE 4510-26-P