Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 11865 

1The regulatory provisions in this part have been 

written and organized to be consistent with other 

whistleblower regulations promulgated by OSHA to 

the extent possible within the bounds of the 

statutory language of Sarbanes-Oxley. 

Responsibility for receiving and investigating 

complaints under Sarbanes-Oxley has been 

delegated to the Assistant Secretary for 

Occupational Safety and Health. Secretary of 

Labor’s Order No. 01–2012 (Jan. 18, 2012), 77 FR 

3912 (Jan. 25, 2012). Hearings on determinations by 

the Assistant Secretary are conducted by the Office 

of Administrative Law Judges, and appeals from 

decisions by administrative law judges are decided 

by the ARB. Secretary of Labor’s Order 2–2012 (Oct. 

19, 2012), 77 FR 69378 (Nov. 16, 2012). 

Dated: February 27, 2015. 

Kevin J. Wolf, 

Assistant Secretary for Export 

Administration. 

[FR Doc. 2015–05085 Filed 3–4–15; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 895 

Banned Devices 

CFR Correction 

In Title 21 of the Code of Federal 

Regulations, Parts 800 to 1299, revised 

as of April 1, 2014, on page 594, in 

§ 895.21, remove the undesignated 

paragraph following paragraph (d)(8). 

[FR Doc. 2015–05028 Filed 3–4–15; 08:45 am] 

BILLING CODE 1505–01D 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1980 

[Docket Number: OSHA–2011–0126] 

RIN 1218–AC53 

Procedures for the Handling of 

Retaliation Complaints Under Section 

806 of the Sarbanes-Oxley Act of 2002, 

as Amended 

AGENCY: Occupational Safety and Health 

Administration, Labor. 

ACTION: Final rule. 

SUMMARY: This document provides the 

final text of regulations governing 

employee protection (retaliation or 

whistleblower) claims under section 806 

of the Corporate and Criminal Fraud 

Accountability Act of 2002, Title VIII of 

the Sarbanes-Oxley Act of 2002 

(Sarbanes-Oxley or Act), which was 

amended by sections 922 and 929A of 

the Dodd-Frank Wall Street Reform and 

Consumer Protection Act of 2010 (DoddFrank), enacted on July 21, 2010. An 

interim final rule (IFR) governing these 

provisions and request for comment was 

published in the Federal Register on 

November 3, 2011. Five comments were 

received. This rule responds to those 

comments and establishes the final 

procedures and time frames for the 

handling of retaliation complaints under 

Sarbanes-Oxley, including procedures 

and time frames for employee 

complaints to the Occupational Safety 

and Health Administration (OSHA), 

investigations by OSHA, appeals of 

OSHA determinations to an 

administrative law judge (ALJ) for a 

hearing de novo, hearings by ALJs, 

review of ALJ decisions by the 

Administrative Review Board (ARB) 

(acting on behalf of the Secretary of 

Labor), and judicial review of the 

Secretary of Labor’s final decision. It 

also sets forth the Secretary of Labor’s 

interpretations of the Sarbanes-Oxley 

whistleblower provision on certain 

matters. 

DATES: This final rule is effective on 

March 5, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Brian Broecker, Directorate of 

Whistleblower Protection Programs, 

Occupational Safety and Health 

Administration, U.S. Department of 

Labor, Room N–4624, 200 Constitution 

Avenue NW., Washington, DC 20210; 

telephone (202) 693–2199; email: 

OSHA.DWPP@dol.gov. This is not a tollfree number. This Federal Register 

publication is available in alternative 

formats. The alternative formats 

available are large print, electronic file 

on computer disk (Word Perfect, ASCII, 

Mates with Duxbury Braille System) and 

audiotape. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Sarbanes-Oxley was first enacted on 

July 30, 2002. Title VIII is designated as 

the Corporate and Criminal Fraud 

Accountability Act of 2002. Section 806, 

codified at 18 U.S.C. 1514A, is the 

‘‘whistleblower provision,’’ which 

provides protection to employees 

against retaliation by certain persons 

covered under the Act for engaging in 

specified protected activity. The Act 

generally was designed to protect 

investors by ensuring corporate 

responsibility, enhancing public 

disclosure, and improving the quality 

and transparency of financial reporting 

and auditing. The whistleblower 

provision is intended to protect 

employees who report fraudulent 

activity and violations of Securities 

Exchange Commission (SEC) rules and 

regulations that can harm innocent 

investors in publicly traded companies. 

Dodd-Frank amended the SarbanesOxley whistleblower provision, 18 

U.S.C. 1514A. The regulatory revisions 

described herein reflect these statutory 

amendments and also seek to clarify and 

improve OSHA’s procedures for 

handling Sarbanes-Oxley whistleblower 

claims, as well as to set forth OSHA’s 

interpretations of the Act. To the extent 

possible within the bounds of 

applicable statutory language, these 

revised regulations are designed to be 

consistent with the procedures applied 

to claims under other whistleblower 

statutes administered by OSHA, 

including the Surface Transportation 

Assistance Act of 1982 (STAA), 29 CFR 

part 1978; the National Transit Systems 

Security Act (NTSSA) and the Federal 

Railroad Safety Act (FRSA), 29 CFR part 

1982; the Consumer Product Safety 

Improvement Act of 2008 (CPSIA), 29 

CFR part 1983; the Employee Protection 

Provisions of Six Environmental 

Statutes and Section 211 of the Energy 

Reorganization Act of 1974, as 

amended, 29 CFR part 24; the 

Affordable Care Act (ACA), 29 CFR part 

1984; the Consumer Financial 

Protection Act (CFPA), 29 CFR part 

1985; the Seaman’s Protection Act 

(SPA), 29 CFR part 1986; and the FDA 

Food Safety Modernization Act (FSMA), 

29 CFR part 1987. 

II. Summary of Statutory Procedures 

and Statutory Changes to the SarbanesOxley Whistleblower Provision 

Sarbanes-Oxley’s whistleblower 

provision, as amended by Dodd-Frank, 

includes procedures that allow a 

covered employee to file a complaint 

with the Secretary of Labor (Secretary) 1

not later than 180 days after the alleged 

retaliation or after the employee learns 

of the alleged retaliation. SarbanesOxley further provides that the rules 

and procedures set forth in the Wendell 

H. Ford Aviation Investment and 

Reform Act for the 21st Century 

(AIR21), 49 U.S.C. 42121(b), govern in 

Sarbanes-Oxley actions. 18 U.S.C. 

1514A(b)(2)(A). Accordingly, upon 

receipt of the complaint, the Secretary 

must provide written notice to the 

person or persons named in the 

complaint alleged to have violated the 

Act (respondent) of the filing of the 

complaint, the allegations contained in 

the complaint, the substance of the 

evidence supporting the complaint, and 

the rights afforded the respondent 

throughout the investigation. The 

Secretary must then, within 60 days of 

receipt of the complaint, afford the 

respondent an opportunity to submit a 

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11866 Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 

2Section 3(a) of the Securities Exchange Act of 

1934 defines a nationally recognized statistical 

ratings organization as a credit rating agency that 

issues credit ratings certified by qualified 

institutional buyers, in accordance with 15 U.S.C. 

78o–7(a)(1)(B)(ix), with respect to: financial 

institutions, brokers, or dealers; insurance 

companies; corporate issuers; issuers of assetbacked securities (as that term is defined in section 

1101(c) of part 229 of title 17, Code of Federal 

Regulations, as in effect on September 29, 2006); 

issuers of government securities, municipal 

securities, or securities issued by a foreign 

government; or a combination of one or more 

categories of obligors described in any of clauses (i) 

through (v); and is registered under 15 U.S.C. 78o– 

7 (15 U.S.C. 78c(a)(62)). 

response and meet with the investigator 

to present statements from witnesses, 

and conduct an investigation. 

The statute provides that the 

Secretary may conduct an investigation 

only if the complainant has made a 

prima facie showing that the protected 

activity was a contributing factor in the 

adverse action alleged in the complaint 

and the respondent has not 

demonstrated, through clear and 

convincing evidence, that the employer 

would have taken the same adverse 

action in the absence of that activity (see 

Section 1980.104 for a summary of the 

investigation process). OSHA interprets 

the prima facie case requirement as 

allowing the complainant to meet this 

burden through the complaint as 

supplemented by interviews of the 

complainant. 

After investigating a complaint, the 

Secretary will issue written findings. If, 

as a result of the investigation, the 

Secretary finds there is reasonable cause 

to believe that retaliation has occurred, 

the Secretary must notify the 

respondent of those findings, along with 

a preliminary order which includes all 

relief necessary to make the employee 

whole, including, where appropriate: 

Reinstatement with the same seniority 

status that the employee would have 

had but for the retaliation; back pay 

with interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. 

The complainant and the respondent 

then have 30 days after the date of the 

Secretary’s notification in which to file 

objections to the findings and/or 

preliminary order and request a hearing 

before an ALJ. The filing of objections 

under Sarbanes-Oxley will stay any 

remedy in the preliminary order except 

for preliminary reinstatement. If a 

hearing before an ALJ is not requested 

within 30 days, the preliminary order 

becomes final and is not subject to 

judicial review. 

If a hearing is held, Sarbanes-Oxley 

requires the hearing to be conducted 

‘‘expeditiously.’’ The Secretary then has 

120 days after the conclusion of any 

hearing in which to issue a final order, 

which may provide appropriate relief or 

deny the complaint. Until the 

Secretary’s final order is issued, the 

Secretary, the complainant, and the 

respondent may enter into a settlement 

agreement that terminates the 

proceeding. Where the Secretary has 

determined that a violation has 

occurred, the Secretary, will order all 

relief necessary to make the employee 

whole, including, where appropriate: 

reinstatement of the complainant to his 

or her former position together with the 

same seniority status the complainant 

would have had but for the retaliation; 

payment of back pay with interest; and 

compensation for any special damages 

sustained as a result of the retaliation, 

including litigation costs, expert witness 

fees, and reasonable attorney fees. 

Within 60 days of the issuance of the 

final order, any person adversely 

affected or aggrieved by the Secretary’s 

final order may file an appeal with the 

United States Court of Appeals for the 

circuit in which the violation occurred 

or the circuit where the complainant 

resided on the date of the violation. 

Sarbanes-Oxley permits the employee 

to seek de novo review of the complaint 

by a United States district court in the 

event that the Secretary has not issued 

a final decision within 180 days after 

the filing of the complaint and there is 

no showing that such delay is due to the 

bad faith of the complainant. The court 

will have jurisdiction over the action 

without regard to the amount in 

controversy, and the case will be tried 

before a jury at the request of either 

party. 

Dodd-Frank, enacted on July 21, 2010, 

amended the Sarbanes-Oxley 

whistleblower provision to make several 

substantive changes. First, section 

922(b) of Dodd-Frank added protection 

for employees from retaliation by 

nationally recognized statistical rating 

organizations (as defined in section 3(a) 

of the Securities Exchange Act of 1934 

(15 U.S.C. 78c)) or their officers, 

employees, contractors, subcontractors, 

and agents.2 Second, as noted above, 

section 922(c) of Dodd-Frank extended 

the statutory filing period for retaliation 

complaints under Sarbanes-Oxley from 

90 days to 180 days after the date on 

which the violation occurs or after the 

date on which the employee became 

aware of the violation. Section 922(c) of 

Dodd-Frank also provided parties with 

a right to a jury trial in district court 

actions brought under Sarbanes-Oxley’s 

‘‘kick-out’’ provision, 18 U.S.C. 

1514A(b)(1)(B), which provides that, if 

the Secretary has not issued a final 

decision within 180 days of the filing of 

the complaint and there is no showing 

that there has been delay due to the bad 

faith of the complainant, the 

complainant may bring an action at law 

or equity for de novo review in the 

appropriate district court of the United 

States, which will have jurisdiction over 

such action without regard to the 

amount in controversy. Third, section 

922(c) amended Sarbanes-Oxley to state 

that the rights and remedies provided 

for in 18 U.S.C. 1514A may not be 

waived by any agreement, policy form, 

or condition of employment, including 

by a pre-dispute arbitration agreement, 

and to provide that no pre-dispute 

arbitration agreement shall be valid or 

enforceable if the agreement requires 

arbitration of a dispute arising under 

this section. 

In addition, section 929A of DoddFrank clarified that companies covered 

by the Sarbanes-Oxley whistleblower 

provision include any company with a 

class of securities registered under 

section 12 of the Securities Exchange 

Act of 1934 (15 U.S.C. 78l), or that is 

required to file reports under section 

15(d) of the Securities Exchange Act of 

1934 (15 U.S.C. 78o(d)) including any 

subsidiary or affiliate whose financial 

information is included in the 

consolidated financial statements of 

such company. As explained in Johnson 

v. Siemens Building Technologies, Inc., 

ARB No. 08–032, 2011 WL 1247202, at 

*11 (Mar. 31, 2011), section 929A 

merely clarified that subsidiaries and 

affiliates are covered under the 

Sarbanes-Oxley whistleblower 

provision. Section 929A applies to all 

cases currently pending before the 

Secretary. 

III. Summary of Regulations and 

Rulemaking Proceedings 

On November 3, 2011, OSHA 

published in the Federal Register an 

IFR revising rules governing the 

whistleblower provisions of Section 806 

of Sarbanes-Oxley. 76 FR 68084. OSHA 

included a request for public comment 

on the interim rules by January 3, 2012. 

In response, four organizations and 

one individual filed comments with 

OSHA within the public comment 

period. Comments were received from 

Mr. Hunter Levi; the National 

Whistleblower Center (NWC); Katz, 

Marshall & Banks, LLP (Marshall); the 

Equal Employment Advisory Council 

(EEAC); and the Society of Corporate 

Secretaries & Governance Professionals 

(SCSGP). 

OSHA has reviewed and considered 

the comments and now adopts this final 

rule with minor revisions. The 

following discussion addresses the 

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 11867 

comments, OSHA’s responses, and any 

other changes to the provisions of the 

rule. The provisions in the IFR are 

adopted and continued in this final rule, 

unless otherwise noted below. 

General Comments 

Marshall commented that ‘‘in large 

part, the rules simply effectuate changes 

made by [Dodd-Frank] and are rather 

modest in scope,’’ and wrote in support 

of several changes made in the IFR. 

Marshall stated that Congress enacted 

Sarbanes-Oxley whistleblower 

provisions to ensure that employees 

could raise concerns about potentially 

harmful fraud on shareholders and 

others without fear of retaliation. In 

response to anticipated comments that 

the rules ‘‘will make pursuing a SOX 

whistleblower claim far less daunting,’’ 

Marshall noted, ‘‘why should OSHA 

procedures make pursuing a 

whistleblower complaint daunting for 

an employee in a procedural sense?’’ 

(emphasis in original). Marshall 

explained, ‘‘If the purpose of SOX 

whistleblower protections is to 

encourage and facilitate the timely 

reporting of financial fraud that can 

cause tremendous harm to the public 

good, the administrative process should 

be as accessible as possible.’’ Marshall 

also commented on specific provisions 

of the rule; those comments are 

addressed below. 

SCSGP noted that Section 806 of 

Sarbanes-Oxley provides 

whistleblowers with broad protection 

against retaliation, and its safeguards 

were enhanced by the enactment of 

Dodd-Frank. SCSGP also pointed to 

recent ARB case law and other 

provisions of Dodd-Frank that provide 

expanded whistleblower protections. 

SCSGP commented that these 

developments ‘‘underscore the need to 

ensure that employers are provided 

adequate due process in the context of 

DOL’s administration of Section 806 

complaints.’’ SCSGP comments then 

focused on four aspects of the IFR that 

SCSGP considers are ‘‘unauthorized by 

statute, imbalanced, and unduly 

prejudicial to employers’ reasonable 

interests.’’ Those specific comments and 

provisions are discussed in detail 

below. 

Mr. Levi asserted his belief that the 

IFR contained ‘‘new provisions that 

violate the intent of Congress, ignore 

longstanding precedent concerning the 

authority of the Secretary, and seek to 

create a bogus legal exception to SOX 

Section 802, [18 U.S.C. 1519]; which 

deals with the criminal obstruction of 

SOX in government proceedings.’’ Mr. 

Levi also asserted his belief that the 

revisions to which he objects violate the 

rights of Sarbanes-Oxley complainants 

and increase the risk of employer 

securities fraud. Mr. Levi’s comments 

additionally addressed two specific 

portions of the IFR Federal Register 

notice: Section 1980.112 and the 

preamble discussion of Section 

1980.114. OSHA has addressed Mr. 

Levi’s comments in the discussion of 

the specific provisions below. 

EEAC commented that the IFR 

accurately reflected the changes made 

by Dodd-Frank, and commended OSHA 

for this effort. EEAC further submitted 

that many of the additional changes 

incorporated in the IFR, for purposes of 

clarification and improvement of the 

procedures, were not directed by DoddFrank. EEAC respectfully submitted that 

many of these changes ‘‘seem 

intentionally designed to make it easier 

for claimants to file and prosecute, and 

more difficult for respondents to 

defend,’’ Sarbanes-Oxley whistleblower 

complaints. EEAC then commented on 

several specific provisions of the rule, 

and those comments are addressed 

below. 

NWC, in support of its various 

suggested revisions, discussed the 

overall remedial purpose of the 

Sarbanes-Oxley whistleblower 

provisions, as well as the employee 

protection provisions of various other 

statutes that OSHA enforces. NWC also 

commented specifically on several 

provisions of the IFR, which are 

discussed below. 

Subpart A—Complaints, Investigations, 

Findings and Preliminary Orders 

Section 1980.100 Purpose and Scope 

This section describes the purpose of 

the regulations implementing SarbanesOxley and provides an overview of the 

procedures covered by these 

regulations. No comments were received 

on this section. However, OSHA has 

added a statement in subparagraph (b) 

noting that these rules reflect the 

Secretary’s interpretations of the Act. 

Section 1980.101 Definitions 

This section includes general 

definitions applicable to SarbanesOxley’s whistleblower provision. The 

interim final rule updated and revised 

this section in light of Dodd-Frank’s 

amendments to Sarbanes-Oxley. In 

March 2014, the Supreme Court issued 

its decision in Lawson v. FMR LLC, 134 

S. Ct. 1158 (2014), in which it affirmed 

the Department’s view that protected 

employees under Sarbanes-Oxley’s 

whistleblower provision include 

employees of contractors to public 

companies. No changes have been made 

to the definition of ‘‘employee’’ in this 

rule, as the interim final rule’s 

definition of ‘‘employee’’ is consistent 

with the Supreme Court’s decision. No 

comments were received on this section 

of the interim final rule and no changes 

have been made to this section. 

Section 1980.102 Obligations and 

Prohibited Acts 

This section describes the activities 

that are protected under Sarbanes-Oxley 

and the conduct that is prohibited in 

response to any protected activities. 

The final rule, like the interim final 

rule, provides that an employee is 

protected against retaliation by a 

covered person for any lawful act done 

by the employee: 

(1) To provide information, cause 

information to be provided, or otherwise 

assist in an investigation regarding any 

conduct which the employee reasonably 

believes constitutes a violation of 18 

U.S.C. 1341 (mail fraud), 1343 (wire 

fraud), 1344 (bank fraud), or 1348 

(securities fraud), any rule or regulation 

of the Securities and Exchange 

Commission, or any provision of 

Federal law relating to fraud against 

shareholders, when the information or 

assistance is provided to or the 

investigation is conducted by— 

(i) A Federal regulatory or law 

enforcement agency; 

(ii) Any Member of Congress or any 

committee of Congress; or 

(iii) A person with supervisory 

authority over the employee (or such 

other person working for the employer 

who has the authority to investigate, 

discover, or terminate misconduct); or 

(2) To file, cause to be filed, testify, 

participate in, or otherwise assist in a 

proceeding filed or about to be filed 

(with any knowledge of the employer) 

relating to an alleged violation of 18 

U.S.C. 1341, 1343, 1344, or 1348, any 

rule or regulation of the Securities and 

Exchange Commission, or any provision 

of Federal law relating to fraud against 

shareholders. 

In order to have a ‘‘reasonable belief’’ 

under Sarbanes-Oxley, a complainant 

must have both a subjective, good faith 

belief and an objectively reasonable 

belief that the complained-of conduct 

violates one of the enumerated 

categories of law. See Lockheed Martin 

Corp. v. ARB, 717 F.3d 1121, 1132 (10th 

Cir. 2013); Wiest v. Lynch, 710 F.3d 121, 

131–32 (3d Cir. 2013); Sylvester v. 

Parexel Int’l LLC, ARB No. 07–123, 2011 

WL 2165854, at *12 (ARB May 25, 

2011). The requirement that the 

complainant have a subjective, good 

faith belief is satisfied so long as the 

complainant actually believed that the 

conduct complained of violated the 

relevant law. See Sylvester, 2011 WL 

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11868 Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 

2165854, at *12 (citing Harp v. Charter 

Commc’ns, 558 F.3d 722, 723 (7th Cir. 

2009)); Day v. Staples, Inc., 555 F.3d 42, 

54 n.10 (1st Cir. 2009) (quoting Welch v. 

Chao, 536 F.3d 269, 277 n.4 (4th Cir. 

2008) (‘‘Subjective reasonableness 

requires that the employee ‘actually 

believed the conduct complained of 

constituted a violation of pertinent 

law.’ ’’)). ‘‘[T]he legislative history of 

Sarbanes-Oxley makes clear that its 

protections were ‘intended to include 

all good faith and reasonable reporting 

of fraud, and there should be no 

presumption that reporting is 

otherwise.’ ’’ Sylvester, 2011 WL 

2165854, at *11 (quoting Van Asdale v. 

Int’l Game Tech., 577 F.3d 989, 1002 

(9th Cir. 2009) (citing 148 Cong. Rec. 

S7418–01, S7420 (daily ed. July 26, 

2002))). 

The objective ‘‘reasonableness’’ of a 

complainant’s belief is typically 

determined ‘‘based on the knowledge 

available to a reasonable person in the 

same factual circumstances with the 

same training and experience as the 

aggrieved employee.’’ Sylvester, 2011 

WL 2165854, at *12 (internal quotation 

marks and citation omitted); Harp, 558 

F.3d at 723. However, the complainant 

need not show that the conduct 

complained of constituted an actual 

violation of law. Pursuant to this 

standard, an employee’s whistleblower 

activity is protected where it is based on 

a reasonable, but mistaken, belief that a 

violation of the relevant law has 

occurred or is likely to occur. See 

Sylvester, 2011 WL 2165854, at *13 

(citing Welch, 536 F.3d at 277); Allen v. 

Admin. Rev. Bd., 514 F.3d 468, 476–77 

(5th Cir. 2008); Melendez v. Exxon 

Chemicals Americas, ARB No. 96–051, 

slip op. at 21 (ARB July 14, 2000) (‘‘It 

is also well established that the 

protection afforded whistleblowers who 

raise concerns regarding statutory 

violations is contingent on meeting the 

aforementioned ‘reasonable belief’ 

standard rather than proving that actual 

violations have occurred.’’). 

NWC commented on this section and 

suggested that an additional paragraph 

be added to this section, addressing the 

question of extraterritorial application 

of Section 806 of Sarbanes-Oxley. At the 

time of its comment, this question was 

before the ARB for consideration. NWC 

noted that because the issue of 

extraterritorial application was pending, 

the Department of Labor (Department) 

could ‘‘facilitate determination of these 

issues by making a few clarifications in 

the regulations.’’ NWC suggested OSHA 

add a paragraph 29 CFR 1980.102(c), 

that provides as follows: ‘‘(c) The 

employee protections of the Act shall 

have the same extraterritorial 

application as the Securities Exchange 

Act, including the Foreign Corrupt 

Practices Act (FCPA), 15 U.S.C. 78dd1.’’ However, since the writing of the 

comment, the ARB has issued its 

decision on this question, holding that 

‘‘Section 806(a)(1) does not allow for its 

extraterritorial application.’’ Villanueva 

v. Core Laboratories NV, No. 09–108, 

2011 WL 7021145, at *9 (ARB Dec. 22, 

2011), affirmed on other grounds, 

Villanueva v. U.S. Dep’t of Labor, 743 

F.3d 103 (5th Cir. 2014). The ARB’s 

decision in Villanueva provides the 

Secretary’s views on the extraterritorial 

application of the SOX whistleblower 

provision and OSHA therefore declines 

to include NWC’s suggested paragraph 

on this issue. No other comments were 

received on this section and no changes 

have been made to it. 

Section 1980.103 Filing of Retaliation 

Complaints 

This section explains the 

requirements for filing a retaliation 

complaint under Sarbanes-Oxley. The 

Dodd-Frank 2010 statutory amendments 

changed the statute of limitations for 

filing a complaint from 90 to 180 days 

after the date on which the violation 

occurs, or after the date on which the 

employee became aware of the 

violation. This change was reflected in 

the IFR and is continued here. 

Therefore, to be timely, a complaint 

must be filed within 180 days of when 

the alleged violation occurs, or after the 

date on which the employee became 

aware of the violation. Under Delaware 

State College v. Ricks, 449 U.S. 250, 258 

(1980), the time of the alleged violation 

is considered to be when the retaliatory 

decision has been both made and 

communicated to the complainant. The 

time for filing a complaint under 

Sarbanes-Oxley may be tolled for 

reasons warranted by applicable case 

law. For example, OSHA may consider 

the time for filing a Sarbanes-Oxley 

complaint equitably tolled if the 

complainant mistakenly files a 

complaint with another agency instead 

of OSHA within 180 days after 

becoming aware of the alleged violation. 

EEAC expressed its support for this 

revision. 

The IFR also amended Section 

1980.103(b) to change the requirement 

that whistleblower complaints to OSHA 

under Sarbanes-Oxley ‘‘must be in 

writing and should include a full 

statement of the acts and omissions, 

with pertinent dates, which are believed 

to constitute the violations.’’ Consistent 

with OSHA’s procedural rules under 

other whistleblower statutes, complaints 

filed under Sarbanes-Oxley now need 

not be in any particular form. They may 

be either oral or in writing. When a 

complaint is made orally, OSHA will 

reduce the complaint to writing. If a 

complainant is not able to file the 

complaint in English, the complaint 

may be filed in any language. With the 

consent of the employee, complaints 

may be filed by any person on the 

employee’s behalf. As noted below, 

several comments were received on this 

section of the interim final rule. No 

changes have been made in response to 

the comments. However, the term 

‘‘email’’ in paragraph (d) has been 

changed to ‘‘electronic communication 

transmittal’’ because OSHA has 

published an on-line complaint form on 

its Web site, http://www.whistleblowers.

gov/complaint_page.html. 

SCSGP commented that it is ‘‘very 

concerned that the proposed ‘oral 

complaint’ provision will have 

unintended negative consequences, and 

[it] urge[s] OSHA not to enact it.’’ 

SCSGP further commented that the new 

rule is ‘‘unnecessary because SOX 

complaints most often are filed by 

sophisticated professionals,’’ and that 

the rule shifts the OSHA investigator’s 

role from one of a neutral fact-finder to 

an advocate for the complainant. SCSGP 

also commented that the rule lacks any 

standard for the investigator’s creation 

of the complaint. SCSGP also raised the 

concern that the new rule ‘‘presents the 

risk that the complainant will later treat 

the investigator as an adverse witness in 

the litigation.’’ SCSGP explained that in 

cases where a complainant who 

proceeds to further stages of the 

administrative proceeding, or a 

complainant who transfers their case to 

federal district court, may seek to 

modify or expand their original 

complaint by arguing that the OSHA 

investigator did not accurately record 

the complainant’s allegations at the time 

of the initial complaint. SCSGP 

explained this could place the 

investigator in the role of an adverse 

witness and subject him or her to 

scrutiny for failing to capture the oral 

complaint in totality. 

Similarly, EEAC commented that it 

questioned the ‘‘rationale of eliminating 

the requirement that a written 

complaint contain the full details 

concerning the alleged violation.’’ EEAC 

commented that written complaints 

emphasize the gravity of invoking 

protection under Sarbanes-Oxley and 

discourage frivolous complaints. The 

EEAC also commented on the provision 

that complaints may be made in any 

language, stating that ‘‘[t]he agency 

offers no guidance on by whom, if at all, 

the complaint will be translated into 

English’’ nor how a respondent may 

submit its own proposed translation. 

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 11869 

EEAC respectfully recommended that 

this final rule make clear how these 

issues would be resolved. Conversely, 

Marshall wrote in support of these 

revisions. 

OSHA has considered these 

comments and adopts the changes made 

in the IFR. The statutory text of SOX 

does not require written complaints to 

OSHA. See 29 U.S.C. 1514A(b)(1)(A). 

Further, as Marshall noted in his 

comment, ‘‘[m]aking it clear that OSHA 

can accept oral complaints is better 

described as a clarification than as an 

amendment to existing procedures.’’ 

Indeed, the Department has long 

permitted oral complaints under the 

environmental statutes. See, e.g., 

Roberts v. Rivas Environmental 

Consultants, Inc., ARB No. 97–026, 

1997 WL 578330, at *3 n.6 (ARB Sept. 

17, 1997) (complainant’s oral statement 

to an OSHA investigator, and the 

subsequent preparation of an internal 

memorandum by that investigator 

summarizing the oral complaint, 

satisfies the ‘‘in writing’’ requirement of 

CERCLA, 42 U.S.C. 9610(b), and the 

Department’s accompanying regulations 

in 29 CFR part 24); Dartey v. Zack Co. 

of Chicago, No. 1982–ERA–2, 1983 WL 

189787, at *3 n.1 (Sec’y of Labor Apr. 

25, 1983) (adopting administrative law 

judge’s findings that complainant’s 

filing of a complaint to the wrong DOL 

office did not render the filing invalid 

and that the agency’s memorandum of 

the complaint satisfied the ‘‘in writing’’ 

requirement of the Energy 

Reorganization Act (‘‘ERA’’) and the 

Department’s accompanying regulations 

in 29 CFR part 24). Moreover, accepting 

oral complaints under Sarbanes-Oxley is 

consistent with OSHA’s longstanding 

practice of accepting oral complaints 

filed under Section 11(c) of the 

Occupational Safety and Health Act of 

1970, 29 U.S.C. 660(c); Section 211 of 

the Asbestos Hazard Emergency 

Response Act of 1986, 15 U.S.C. 2651; 

Section 7 of the International Safe 

Container Act of 1977, 46 U.S.C. 80507; 

and STAA, 49 U.S.C. 31105. This 

change also accords with the Supreme 

Court’s decision in Kasten v. SaintGobain Performance Plastics Corp., in 

which the Court held that the antiretaliation provision of the Fair Labor 

Standards Act, which prohibits 

employers from discharging or 

otherwise discriminating against an 

employee because such employee has 

‘‘filed any complaint,’’ protects 

employees’ oral complaints of violations 

of the Fair Labor Standards Act. 563 

U.S. ll, 131 S. Ct. 1325 (2011). 

Furthermore, OSHA believes that its 

acceptance of oral complaints under 

Sarbanes-Oxley is most consistent with 

the ARB’s decisions in Sylvester and 

Evans v. U.S. Environmental Protection 

Agency, ARB No. 08–059 (ARB Jul. 31, 

2012). In Sylvester, noting that OSHA 

does not require complaints under 

Sarbanes-Oxley to be in any form and 

that under 29 CFR 1980.104(b) OSHA 

has a duty, if appropriate, to interview 

the complainant to supplement the 

complaint, the ARB held that the federal 

court pleading standards established in 

Bell Atlantic Corp. v. Twombly, 550 U.S. 

544 (2007) and Ashcroft v. Iqbal, 556 

U.S. 662 (2009) do not apply to 

Sarbanes-Oxley whistleblower 

complaints filed with OSHA. 2011 WL 

2165854, at *9–10. In Evans, the ARB 

articulated the legal standard for 

analyzing the sufficiency of a 

whistleblower complaint brought before 

an ALJ. The ARB held that the 

whistleblower complaint need only give 

‘‘fair notice’’ of the protected activity 

and adverse action to withstand a 

motion to dismiss for failure to state a 

claim. ARB No. 08–059, slip op. at *9. 

Furthermore, the ARB instructed that an 

ALJ should not act on a motion to 

dismiss for failure to state a claim until 

it is clear that the complainant has filed 

a document that articulates the claims 

presented to the OALJ for hearing 

following OSHA’s findings. Id., at *8. 

Complaints filed with OSHA under this 

section are simply ‘‘informal documents 

that initiate an investigation into 

allegations of unlawful retaliation in 

violation of the [Act].’’ Id., at *7. 

Permitting a complainant to file a 

complaint orally or in writing or in any 

language is consistent with the purpose 

of the complaint filed with OSHA, 

which is to trigger an investigation 

regarding whether there is reasonable 

cause to believe that retaliation 

occurred. 

Furthermore, upon receipt of a 

complaint, OSHA must provide the 

respondent notice of the filing of the 

complaint, the allegations contained in 

the complaint, and the substance of the 

evidence supporting the complaint. 49 

U.S.C. 42121(b)(2)(A); 29 CFR 

1980.104(a). OSHA may not undertake 

an investigation of the complaint unless 

the complaint, supplemented as 

appropriate by interviews of the 

complainant, makes a prima facie 

allegation of retaliation. 49 U.S.C. 

42121(b)(2)(B); 29 CFR 1980.104(e). If 

OSHA commences an investigation, the 

respondent has the opportunity to 

submit a response to the complaint and 

meet with the investigator to present 

statements from witnesses. 49 U.S.C. 

42121(b)(2)(A); 29 CFR 1980.104(b). To 

fulfill these statutory responsibilities, 

when OSHA receives an oral complaint, 

OSHA gathers as much information as it 

can from the complainant about the 

complainant’s allegations so that the 

respondent will be able to adequately 

respond to the complaint and so that 

OSHA may properly determine the 

scope of any investigation into the 

complaint. OSHA also generally 

provides the respondent with a copy of 

its memorandum memorializing the 

complaint, and the respondent has the 

opportunity to request that OSHA 

clarify the allegations in the complaint 

if necessary. 

Regarding SCSGP’s comment that the 

investigator may be later called as an 

adverse witness in litigation, OSHA 

understands this comment to be 

implicating the issue of adding untimely 

claims or exhaustion of remedies. Under 

Section 806, an employee must file a 

complaint with OSHA alleging a 

violation of this provision and allow 

OSHA an opportunity to investigate 

before pursuing the claim before an ALJ 

or in federal court. 18 U.S.C. 

1514A(b)(1)(A). Failure to raise a 

particular claim or allegation before 

OSHA can result in that claim being 

barred in subsequent administrative or 

federal court proceedings for failure to 

‘‘exhaust administrative remedies.’’ See, 

e.g., Willis v. Vie Financial Group, Inc., 

No. Civ. A. 04–435, 2004 WL 1774575 

(E.D. Pa. Aug. 6, 2004) (barring a 

complainant’s claim because he did not 

amend his OSHA complaint to assert 

post-complaint retaliation); Carter v. 

Champion Bus, Inc., ARB No. 05–076, 

slip op. at *9 (ARB Sept. 29, 2006) (the 

ARB generally will not consider 

arguments or evidence first raised on 

appeal); Saporito v. Central Locating 

Services, Ltd., ARB No. 05–004, slip op. 

at *9 (ARB Feb. 28, 2006) (the ARB was 

unwilling to entertain an argument from 

the complainant that he had engaged in 

certain activity where he had not 

presented that theory to the ALJ, and 

where the argument was supported by 

no ‘‘references to the record, legal 

authority or analysis.’’). While a dispute 

could arise in a whistleblower 

complaint filed orally regarding whether 

OSHA properly recorded the allegations 

at issue in the complaint and whether 

the complainant properly exhausted his 

administrative remedies, this possibility 

is not new, as OSHA’s historical 

practice has been to accept complaints 

orally and reduce them to writing and 

to supplement complaints with 

interviews of the complainant as 

necessary. In addition, the possibility 

that a dispute could arise regarding the 

claims raised to OSHA does not 

outweigh the benefits to whistleblowers 

and the public of allowing such 

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11870 Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 

complaints to be filed orally with 

OSHA. 

In response to EEAC’s comment 

regarding OSHA’s acceptance of 

complaints in any language, OSHA 

believes that its procedures are fair and 

ensure the accuracy of the complaint 

and evidence submitted to OSHA. 

Under current practices for receiving 

complaints, OSHA uses professional 

interpretive services to communicate 

with employees speaking a language 

other than English. The OSHA 

investigator will reduce the complaint 

to writing, in English, as communicated 

to him or her through the interpretive 

service. Translation services are also 

available to interview complainants 

throughout an investigation. 

Additionally, should the complainant 

wish to submit his or her complaint in 

another language in writing, or submit 

additional documents throughout the 

investigation in another language, 

OSHA will use document translation 

services. Should a respondent wish to 

see an original document, as well as any 

translation, this information may be 

exchanged in accordance with the 

procedures and privacy protections set 

forth in Section 1980.104 (discussed in 

detail below). A respondent then would 

be free to submit his or her own 

translation of any such document to the 

OSHA investigator in accordance with 

the investigation procedures set forth in 

Section 1980.104. 

Section 1980.104 Investigation 

This section describes the procedures 

that apply to the investigation of 

Sarbanes-Oxley complaints. Paragraph 

(a) of this section outlines the 

procedures for notifying the parties and 

the SEC of the complaint and notifying 

respondents of their rights under these 

regulations. Paragraph (b) describes the 

procedures for the respondent to submit 

its response to the complaint. Paragraph 

(c) of the IFR specified that OSHA will 

provide to the complainant (or the 

complainant’s legal counsel if the 

complainant is represented by counsel) 

a copy of all of respondent’s 

submissions to OSHA that are 

responsive to the complainant’s 

whistleblower complaint at a time 

permitting the complainant an 

opportunity to respond to those 

submissions. Paragraph (c) further 

provided that before providing such 

materials to the complainant, OSHA 

will redact them in accordance with the 

Privacy Act of 1974, 5 U.S.C. 552a, and 

other applicable confidentiality laws. 

Paragraph (d) of this section discusses 

confidentiality of information provided 

during investigations. 

Paragraph (e) of this section sets forth 

the applicable burdens of proof. 

Paragraph (f) describes the procedures 

OSHA will follow prior to the issuance 

of findings and a preliminary order 

when OSHA has reasonable cause to 

believe that a violation has occurred. 

The Sarbanes-Oxley whistleblower 

provision mandates that an action under 

the Act is governed by the burdens of 

proof set forth in AIR21, 49 U.S.C. 

42121(b). The statute requires that a 

complainant make an initial prima facie 

showing that a protected activity was ‘‘a 

contributing factor’’ in the adverse 

action alleged in the complaint, i.e., that 

the protected activity, alone or in 

combination with other factors, affected 

in some way the outcome of the 

employer’s decision. The complainant 

will be considered to have met the 

required burden if the complaint on its 

face, supplemented as appropriate 

through interviews of the complainant, 

alleges the existence of facts and either 

direct or circumstantial evidence to 

meet the required showing. 

Complainant’s burden may be satisfied, 

for example, if he or she shows that the 

adverse action took place within a 

temporal proximity of the protected 

activity, or at the first opportunity 

available to the respondent, giving rise 

to the inference that it was a 

contributing factor in the adverse action. 

See, e.g., Porter v. Cal. Dep’t of Corr., 

419 F.3d 885, 895 (9th Cir. 2005) (years 

between the protected activity and the 

retaliatory actions did not defeat a 

finding of a causal connection where the 

defendant did not have the opportunity 

to retaliate until he was given 

responsibility for making personnel 

decisions). 

If the complainant does not make the 

prima facie showing, the investigation 

must be discontinued and the complaint 

dismissed. See Trimmer v. U.S. Dep’t of 

Labor, 174 F.3d 1098, 1101 (10th Cir. 

1999) (noting that the burden-shifting 

framework of the ERA, which is the 

same as that under Sarbanes-Oxley, 

serves a ‘‘gatekeeping function’’ that 

‘‘stem[s] frivolous complaints’’). Even in 

cases where the complainant 

successfully makes a prima facie 

showing, the investigation must be 

discontinued if the employer 

‘‘demonstrates, by clear and convincing 

evidence,’’ that it would have taken the 

same adverse action in the absence of 

the protected activity. 49 U.S.C. 

42121(b)(2)(B)(ii). Thus, OSHA must 

dismiss a complaint under SarbanesOxley and not investigate further if 

either: (1) The complainant fails to meet 

the prima facie showing that protected 

activity was a contributing factor in the 

adverse action; or (2) the employer 

rebuts that showing by clear and 

convincing evidence that it would have 

taken the same adverse action absent the 

protected activity. 

Assuming that an investigation 

proceeds beyond the gatekeeping phase, 

the statute requires OSHA to determine 

whether there is reasonable cause to 

believe that protected activity was a 

contributing factor in the alleged 

adverse action. A contributing factor is 

‘‘any factor which, alone or in 

connection with other factors, tends to 

affect in any way the outcome of the 

decision.’’ Marano v. Dep’t of Justice, 2 

F.3d 1137, 1140 (Fed. Cir. 1993) 

(Whistleblower Protection Act, 5 U.S.C. 

1221(e)(1)); see, e.g., Lockheed Martin 

Corp., 717 F.3d at 1136. For protected 

activity to be a contributing factor in the 

adverse action, ‘‘a complainant need not 

necessarily prove that the respondent’s 

articulated reason was a pretext in order 

to prevail,’’ because a complainant 

alternatively can prevail by showing 

that the respondent’s ‘‘reason, while 

true, is only one of the reasons for its 

conduct’’ and that another reason was 

the complainant’s protected activity. 

See Klopfenstein v. PCC Flow Techs. 

Holdings, Inc., No. 04–149, 2006 WL 

3246904, at *13 (ARB May 31, 2006) 

(citing Rachid v. Jack in the Box, Inc., 

376 F.3d 305, 312 (5th Cir. 2004)) 

(discussing contributing factor test 

under the Sarbanes-Oxley 

whistleblower provision), aff’d sub 

nom. Klopfenstein v. Admin. Review 

Bd., U.S. Dep’t of Labor, 402 F. App’x 

936, 2010 WL 4746668 (5th Cir. 2010). 

If OSHA finds reasonable cause to 

believe that the alleged protected 

activity was a contributing factor in the 

adverse action, OSHA may not order 

relief if the employer demonstrates by 

‘‘clear and convincing evidence’’ that it 

would have taken the same action in the 

absence of the protected activity. See 49 

U.S.C. 42121(b)(2)(B)(iv). The ‘‘clear and 

convincing evidence’’ standard is a 

higher burden of proof than a 

‘‘preponderance of the evidence’’ 

standard. Clear and convincing 

evidence is evidence indicating that the 

thing to be proved is highly probable or 

reasonably certain. Clarke v. Navajo 

Express, Inc., No. 09–114, 2011 WL 

2614326, at *3 (ARB June 29, 2011) 

(discussing burdens of proof under 

analogous whistleblower provision in 

STAA). 

NWC and the EEAC commented on 

this section. NWC suggested 

clarification of what ‘‘other applicable 

confidentiality laws’’ might apply to 

redaction of respondent’s submissions, 

before providing them to the 

complainant. NWC also suggested 

several additions and revisions to this 

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3Section 21F(h)(2)(A) prevents disclosure of 

identifying information by the Commission and its 

officers, except in accordance with the provisions 

of the Privacy Act, unless and until required to be 

disclosed to a defendant or respondent in 

connection with a public proceeding instituted by 

the Commission or any other specified entity. 15 

U.S.C. 78u–6(h)(2). 

section, as well as to Section 1980.107, 

to further protect the confidentiality of 

complainants. NWC pointed to the 

confidentiality provisions of Section 

922 of the Dodd-Frank Act, creating a 

whistleblower program under section 

21F of the Securities Exchange Act, 3 as 

well as recent developments in the 

United States Tax Court, and suggested 

that the Department bring its own 

confidentiality practices into 

conformity. 

The EEAC commented that it was 

extremely concerned that the 

modifications made in this section in 

the IFR would increase the amount of 

information provided to the 

complainant during the investigation 

but reduce information provided to the 

respondent. As OSHA explained in the 

preamble to the IFR, those revisions 

were aimed at aiding OSHA’s ability to 

conduct a ‘‘full and fair investigation.’’ 

EEAC submitted that the same logic 

supports providing respondents with all 

of the information that OSHA receives 

from the complainant during the 

investigation. Specifically, EEAC 

suggested that OSHA retain the former 

language in paragraph (a) regarding 

notice to the respondent upon receipt of 

a complaint, and revise paragraph (c) to 

provide that the same information will 

be provided to respondents as is 

provided to complainants during the 

investigation. EEAC also suggested 

paragraph (f) include language that if 

the complainant submits new 

information at this stage, the employer 

will be given a copy and the 

opportunity to respond before OSHA 

makes a final determination on the 

complaint. 

Regarding NWC’s suggestion that 

OSHA provide more specific 

information about the confidentiality 

laws that may protect portions of the 

information submitted by a respondent, 

OSHA anticipates that the vast majority 

of respondent submissions will not be 

subject to any confidentiality laws. 

However, in addition to the Privacy Act, 

a variety of confidentiality provisions 

may protect information submitted 

during the course of an investigation. 

For example, a respondent may submit 

information that the respondent 

identifies as confidential commercial or 

financial information exempt from 

disclosure under the Freedom of 

Information Act (FOIA). OSHA’s 

procedures for handling information 

identified as confidential during an 

investigation are explained in OSHA’s 

Whistleblower Investigations Manual 

available at: http://www.osha.gov/pls/

oshaweb/owadisp.show_document?p_

table=DIRECTIVES&p_id=506. 

Additionally, OSHA has considered 

NWC’s suggestions regarding 

complainants’ confidentiality. OSHA 

agrees that protecting complainants’ 

confidentiality and privacy to the extent 

possible under the law is essential. 

However, OSHA believes that existing 

procedures and the Privacy Act of 1974, 

5 U.S.C. 552a, et seq., provide sufficient 

safeguards. The Whistleblower 

Investigations Manual instructs that 

while a case is an open investigation, 

information contained in the case file 

generally may not be disclosed to the 

public. Once a case is closed, 

complainants continue to be protected 

from third party public disclosure under 

the Privacy Act. 5 U.S.C. 552a(k)(2). 

However, if a case moves to the ALJ 

hearing process, it becomes a public 

proceeding and the public has a right of 

access to information under various 

laws and the Constitution. See Newport 

v. Calpine Corp., ALJ No. 2007–ERA– 

00007, slip op. at *6 (Feb. 12, 2008), 

available at http://www.oalj.dol.gov/

PUBLIC/WHISTLEBLOWER/

DECISIONS/ALJ_DECISIONS/ERA/

2007ERA00007A.PDF (discussing 

hearings before the ALJ under the 

analogous statutory provisions of the 

ERA and the public right of access). 

Information submitted as evidence 

during these proceedings becomes the 

exclusive record for the Secretary’s 

decision. Public disclosure of the record 

for the Secretary’s decision is governed 

by the Freedom of Information Act and 

the Privacy Act. Id. A party may request 

that a record be sealed to prevent 

disclosure of such information. 

However, the Constitution and various 

federal laws cited in Newport govern the 

granting of such a motion; OSHA cannot 

circumvent these authorities by 

rulemaking. See also Thomas v. Pulte 

Homes, Inc., ALJ No. 2005–SOX–00009, 

slip op. at *2–3 (Aug. 9, 2005) (noting 

that in order to prevent disclosure of 

such information, a moving party must 

request a protective order pursuant to 

the OALJ rules of procedure; the 

standard for granting such a motion is 

high and the burden of making a 

showing of good cause rests with the 

moving party). 

In response to EEAC’s comments and 

suggestions, OSHA agrees that 

respondents must be afforded fair notice 

of the allegations and substance of the 

evidence against them. OSHA also 

believes that the input of both parties in 

the investigation is important to 

ensuring that OSHA reaches the proper 

outcome during its investigation. Thus, 

in response to EEAC’s comments, 

Section 1980.104(a) has been revised to 

more closely mirror AIR21’s statutory 

requirement, incorporated by SarbanesOxley, in 49 U.S.C. 42121(b)(1) that after 

receiving a complaint, the Secretary 

shall notify the respondent of the filing 

of the complaint, of the allegations 

contained in the complaint, and of the 

substance of the evidence supporting 

the complaint. In response to EEAC’s 

comment regarding paragraph (c), 

OSHA notes that its current policy is to 

request that each party provide the other 

parties with a copy of all submissions to 

OSHA that are responsive to the 

whistleblower complaint. Where the 

parties do not so provide, OSHA will 

ensure that each party is provided with 

such information, redacted as 

appropriate. OSHA will also ensure that 

each party is provided with an 

opportunity to respond to the other 

party’s submissions. OSHA has revised 

paragraph (c) to clarify these policies 

regarding information sharing during 

the course of an investigation. Further 

information regarding OSHA’s 

nonpublic disclosure and information 

sharing policies may also be found in 

the Whistleblower Investigations 

Manual. Regarding EEAC’s suggestion 

for paragraph (f), it is already OSHA’s 

policy to provide the respondent a 

chance to review any additional 

evidence on which OSHA intends to 

rely that is submitted by the 

complainant at this stage and to provide 

the respondent an opportunity to 

respond to any such additional 

evidence. This policy is necessary to 

achieve the purpose of paragraph (f), 

which is to afford respondent due 

process prior to ordering preliminary 

reinstatement as required by the 

Supreme Court’s decision in Brock v. 

Roadway Express, Inc., 481 U.S. 252 

(1987). OSHA also notes that the 

Whistleblower Investigations Manual 

provides guidance to investigators on 

sharing information with both parties 

throughout the investigation. 

OSHA has made additional minor 

edits throughout this section to clarify 

the applicable procedures and burdens 

of proof. 

Section 1980.105 Issuance of Findings 

and Preliminary Orders 

Throughout this section, minor 

changes were made as needed to clarify 

the provision without changing its 

meaning. This section provides that, on 

the basis of information obtained in the 

investigation, the Assistant Secretary 

will issue, within 60 days of the filing 

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of a complaint, written findings 

regarding whether or not there is 

reasonable cause to believe that the 

complaint has merit. If the findings are 

that there is reasonable cause to believe 

that the complaint has merit, in 

accordance with the statute, 18 U.S.C. 

1514A(c), the Assistant Secretary will 

order ‘‘all relief necessary to make the 

employee whole,’’ including 

preliminary reinstatement, back pay 

with interest, and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. 

Interest on back pay will be calculated 

using the interest rate applicable to 

underpayment of taxes under 26 U.S.C. 

6621 and will be compounded daily. In 

the Secretary’s view, 26 U.S.C. 6621 

provides the appropriate rate of interest 

to ensure that victims of unlawful 

retaliation under Sarbanes-Oxley are 

made whole. The Secretary has long 

applied the interest rate in 26 U.S.C. 

6621 to calculate interest on back pay in 

whistleblower cases. Doyle v. Hydro 

Nuclear Servs., Nos. 99–041, 99–042, 

00–012, 2000 WL 694384, at *14–15, 17 

(ARB May 17, 2000); see also Cefalu v. 

Roadway Express, Inc., ARB Case No. 

09–070, 2011 WL 1247212, at *2 (ARB 

Mar. 17, 2011); Pollock v. Cont’l 

Express, ARB Case Nos. 07–073, 08– 

051, 2010 WL 1776974, at *8 (ARB Apr. 

10, 2010); Murray v. Air Ride, Inc., ARB 

Case No. 00–045, slip op. at 9 (ARB Dec. 

29, 2000). Section 6621 provides the 

appropriate measure of compensation 

under Sarbanes-Oxley and other DOLadministered whistleblower statutes 

because it ensures the complainant will 

be placed in the same position he or she 

would have been in if no unlawful 

retaliation occurred. See Ass’t Sec’y v. 

Double R. Trucking, Inc., ARB Case No. 

99–061, slip op. at 5 (ARB July 16, 1999) 

(interest awards pursuant to § 6621 are 

mandatory elements of complainant’s 

make-whole remedy). Section 6621 

provides a reasonably accurate 

prediction of market outcomes (which 

represents the loss of investment 

opportunity by the complainant and the 

employer’s benefit from use of the 

withheld money) and thus provides the 

complainant with appropriate makewhole relief. See EEOC v. Erie Cnty., 

751 F.2d 79, 82 (2d Cir. 1984) (‘‘[s]ince 

the goal of a suit under the [Fair Labor 

Standards Act] and the Equal Pay Act is 

to make whole the victims of the 

unlawful underpayment of wages, and 

since [§ 6621] has been adopted as a 

good indicator of the value of the use of 

money, it was well within’’ the district 

court’s discretion to calculate 

prejudgment interest under § 6621); 

New Horizons for the Retarded, 283 

N.L.R.B. No. 181, 1173 (May 28, 1987) 

(observing that ‘‘the short-term Federal 

rate [used by § 6621] is based on average 

market yields on marketable Federal 

obligations and is influenced by private 

economic market forces’’). Similarly, as 

explained in the interim final rule, daily 

compounding of the interest award 

ensures that complainants are made 

whole for unlawful retaliation in 

violation of Sarbanes-Oxley. 76 FR 

68088. 

In ordering back pay, OSHA also will 

require the respondent to submit the 

appropriate documentation to the Social 

Security Administration (SSA) 

allocating the back pay to the 

appropriate calendar quarters. Requiring 

the reporting of back pay allocation to 

the SSA serves the remedial purposes of 

Sarbanes-Oxley by ensuring that 

employees subjected to retaliation are 

truly made whole. See Don Chavas, LLC 

d/b/a Tortillas Don Chavas, 361 NLRB 

No. 10 (NLRB Aug. 8, 2014). As the 

NLRB explained, when back pay is not 

properly allocated to the years covered 

by the award, a complainant may be 

disadvantaged in several ways. First, 

improper allocation may interfere with 

a complainant’s ability to qualify for any 

old-age Social Security benefit. Id. at *3 

(‘‘Unless a [complainant’s] multiyear 

backpay award is allocated to the 

appropriate years, she will not receive 

appropriate credit for the entire period 

covered by the award, and could 

therefore fail to qualify for any old-age 

social security benefit.’’). Second, 

improper allocation may reduce the 

complainant’s eventual monthly benefit. 

Id. As the NLRB explained, ‘‘if a 

backpay award covering a multi-year 

period is posted as income for 1 year, 

it may result in SSA treating the 

[complainant] as having received wages 

in that year in excess of the annual 

contribution and benefit base.’’ Id. 

Wages above this base are not subject to 

Social Security taxes, which reduces the 

amount paid on the employee’s behalf. 

‘‘As a result, the [complainant’s] 

eventual monthly benefit will be 

reduced because participants receive a 

greater benefit when they have paid 

more into the system.’’ Id. Finally, 

‘‘social security benefits are calculated 

using a progressive formula: although a 

participant receives more in benefits 

when she pays more into the system, the 

rate of return diminishes at higher 

annual incomes.’’ Therefore, a 

complainant may ‘‘receive a smaller 

monthly benefit when a multiyear 

award is posted to 1 year rather than 

being allocated to the appropriate 

periods, even if social security taxes 

were paid on the entire amount.’’ Id. 

The purpose of a make-whole remedy 

such as back pay is to put the 

complainant in the same position the 

complainant would have been absent 

the prohibited retaliation. That purpose 

is not achieved when the complainant 

suffers the disadvantages described 

above. The Secretary believes that 

requiring proper SSA allocation is 

necessary to achieve the make-whole 

purpose of a back pay award. 

The findings and, where appropriate, 

preliminary order, advise the parties of 

their right to file objections to the 

findings of the Assistant Secretary and 

to request a hearing. If no objections are 

filed within 30 days of receipt of the 

findings, the findings and any 

preliminary order of the Assistant 

Secretary become the final decision and 

order of the Secretary. If objections are 

timely filed, any order of preliminary 

reinstatement will take effect, but the 

remaining provisions of the order will 

not take effect until administrative 

proceedings are completed. 

The provision that reinstatement 

would not be appropriate where the 

respondent establishes that the 

complainant is a security risk was 

removed from 1980.105(a)(1) in the IFR. 

OSHA believes that the determination of 

whether reinstatement is inappropriate 

in a given case is best made on the basis 

of the facts of each case and the relevant 

case law, and thus it is not necessary in 

these procedural rules to define the 

circumstances in which reinstatement is 

not a proper remedy. This amendment 

also makes these procedural regulations 

consistent with the rules under STAA, 

NTSSA, FRSA, and CPSIA, which do 

not contain this statement. 

SCSGP, EEAC, and Marshall 

commented on this removal, as well as 

on the overall guidance provided when 

determining whether preliminary 

reinstatement is appropriate. SCSGP 

commented that the IFR lacked ‘‘any 

standards governing the issuance of 

preliminary reinstatement orders’’ and 

that the rule should contain appropriate 

safeguards that preliminary 

reinstatement is warranted under the 

circumstances, rather than presuming 

that reinstatement is proper. SCSGP 

suggested that OSHA include in the 

final rule a list of non-exhaustive factors 

to be considered by the courts to 

determine when reinstatement is 

appropriate, including whether hostility 

exists between the employee and the 

company, and whether the employee’s 

position no longer exists. EEAC ‘‘urge[d] 

OSHA to reinstate this ‘security risk’ 

exception’’ in the final rule. EEAC also 

submitted that OSHA’s reasoning for 

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removing the exception is flawed (that 

the determination of whether 

reinstatement is inappropriate in a given 

case should be based on the factual 

circumstances of that case). EEAC first 

pointed to Sarbanes-Oxley’s 

incorporation of the AIR21 rules and 

procedures and that the security risk 

exception is consistent with OSHA’s 

whistleblower regulations promulgated 

under AIR21. EEAC also noted that the 

security risk exception was predicated 

on the respondent establishing that the 

complainant is in fact a security risk 

prior to the exception taking effect and 

thus would be determined on a case-bycase basis in this manner. Marshall 

wrote in support of the removal of the 

security risk language and supported the 

explanation that determinations of 

whether reinstatement is appropriate 

should be based on the facts of the 

particular case. Marshall noted that the 

Act itself does not contain any statutory 

prohibition of reinstatement under 

certain circumstances. 

OSHA disagrees that the rule requires 

any further guidance on when 

preliminary reinstatement is 

appropriate. First, OSHA emphasizes 

that Congress intended that employees 

be preliminarily reinstated to their 

positions if OSHA finds reasonable 

cause to believe that they were 

discharged in violation of SarbanesOxley, thus creating the presumption it 

is the appropriate remedy. Neither 

Sarbanes-Oxley nor AIR21 specify any 

statutorily predetermined circumstances 

under which preliminary reinstatement 

would be inappropriate. Furthermore, 

although the regulations governing 

proceedings under AIR21 reference a 

security risk exception, this exception is 

not in the statutory text incorporated by 

Sarbanes-Oxley. See 18 U.S.C. 

1514(b)(1)(A) (. . . shall be governed 

‘‘under the rules and procedures set 

forth in section 42121(b) of title 49, 

United States Code.’’). This reference to 

AIR21’s statutory procedures does not 

impose an obligation for OSHA to also 

incorporate any procedural regulations 

promulgated under AIR21 not mandated 

by the statute. 

OSHA agrees that there may be 

circumstances where preliminary 

reinstatement is inappropriate. 

However, OSHA believes that the rule 

as drafted provides sufficient safeguards 

for these situations, as well as sufficient 

guidance to OSHA, ALJs, and the ARB 

as to when those safeguards may be 

appropriate. First, the rule provides the 

ALJ and ARB discretion to grant a stay 

of an order of preliminary reinstatement 

(See Sections 1980.106(b) and 

1980.110(b)). As discussed in detail in 

the discussion of Section 1980.106, ALJs 

and the ARB can refer to long-standing 

precedential case law in making this 

determination. Second, in appropriate 

circumstances, OSHA may order 

economic reinstatement in lieu of actual 

reinstatement, which is also discussed 

in detail below. In Hagman v. 

Washington Mutual Bank, Inc., the ALJ 

delineated several factors to consider 

when making this determination. ALJ 

No. 2005–SOX–73, 2006 WL 6105301, at 

*32 (Dec. 19, 2006) (noting that while 

reinstatement is the ‘‘preferred and 

presumptive remedy’’ under SarbanesOxley, ‘‘[f]ront pay may be awarded as 

a substitute when reinstatement is 

inappropriate due to: (1) An employee’s 

medical condition that is causally 

related to her employer’s retaliatory 

action; (2) manifest hostility between 

the parties; (3) the fact that claimant’s 

former position no longer exists; or (4) 

the fact that employer is no longer in 

business at the time of the decision’’) 

(internal citations omitted). Many of 

these factors are similar to the factors 

SCSGP suggested be included in the 

rule. Thus, given the existing safeguards 

in place and sufficient guidance for 

when such safeguards are appropriate, 

OSHA declines to include the security 

risk exception in the final rule and 

declines to add additional guidance to 

the rule for when preliminary 

reinstatement is appropriate. 

As mentioned above, in appropriate 

circumstances, in lieu of preliminary 

reinstatement, OSHA may order that the 

complainant receive the same pay and 

benefits that he received prior to his 

termination, but not actually return to 

work. Such ‘‘economic reinstatement’’ is 

akin to an order of front pay and is 

frequently employed in cases arising 

under Section 105(c) of the Federal 

Mine Safety and Health Act of 1977, 

which protects miners from retaliation. 

30 U.S.C. 815(c); see, e.g., Sec’y of Labor 

on behalf of York v. BR&D Enters., Inc., 

23 FMSHRC 697, 2001 WL 1806020, at 

*1 (June 26, 2001). Front pay has been 

recognized as a possible remedy in cases 

under Sarbanes-Oxley and other 

whistleblower statutes enforced by 

OSHA in circumstances where 

reinstatement would not be appropriate. 

See, e.g., Hagman, 2006 WL 6105301; 

Hobby v. Georgia Power Co., ARB Nos. 

98–166, 98–169 (ARB Feb. 9, 2001), 

aff’d sub nom. Hobby v. U.S. Dept. of 

Labor, No. 01–10916 (11th Cir. Sept. 30, 

2002) (unpublished) (noting 

circumstances where front pay may be 

available in lieu of reinstatement but 

ordering reinstatement); Brown v. 

Lockheed Martin Corp., ALJ No. 2008– 

SOX–00049, 2010 WL 2054426, at 

*55–56 (ALJ Jan. 15, 2010) (same). 

Congress intended that employees be 

preliminarily reinstated to their 

positions if OSHA finds reasonable 

cause to believe that they were 

discharged in violation of SarbanesOxley. When a violation is found, the 

norm is for OSHA to order immediate 

preliminary reinstatement. Neither an 

employer nor an employee has a 

statutory right to choose economic 

reinstatement. Rather, economic 

reinstatement is designed to 

accommodate situations in which 

evidence establishes to OSHA’s 

satisfaction that immediate 

reinstatement is inadvisable for some 

reason, notwithstanding the employer’s 

retaliatory discharge of the employee. In 

such situations, actual reinstatement 

might be delayed until after the 

administrative adjudication is 

completed as long as the employee 

continues to receive his or her pay and 

benefits and is not otherwise 

disadvantaged by a delay in 

reinstatement. There is no statutory 

basis for allowing the employer to 

recover the costs of economically 

reinstating an employee should the 

employer ultimately prevail in the 

whistleblower adjudication. 

SCSGP and Marshall commented on 

the issue of economic reinstatement. 

Marshall commented that the inclusion 

of the above language in the preamble 

is of ‘‘crucial significance for 

whistleblowers,’’ but continued that 

OSHA’s recognition that actual 

reinstatement remains the presumptive 

remedy is ‘‘essential as well.’’ Marshall 

explained that ‘‘[a]ctual reinstatement 

protects interests that economic 

reinstatement cannot. Nonetheless, 

economic reinstatement must be 

available as a remedy for situations 

where a whistleblower cannot return to 

the workplace.’’ 

SCSGP addressed the issue of 

allowing an employer to recover the 

costs of economically reinstating an 

employee should the employer 

ultimately prevail in the whistleblower 

adjudication. SCSGP believes OSHA’s 

interpretation, that there is no statutory 

basis for allowing such reimbursement, 

‘‘compromises an employer’s due 

process rights’’ and raises other 

concerns. SCSGP commented that 

conversely there is ‘‘no statutory basis 

for allowing the employee to keep the 

value of economic reinstatement where 

his or her claim is unfounded.’’ SCSGP 

noted that in situations where economic 

reinstatement is awarded, an employer 

may have to pay both the labor cost of 

filling the position, and the cost of the 

economic reinstatement awarded to the 

complainant. Where the employer 

ultimately prevails, it would not recover 

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the duplicative cost, an outcome which 

SCSGP believes is grossly unfair. SCSGP 

recommended that OSHA include an 

additional paragraph in this section, 

allowing that economic reinstatement be 

available only upon consent of all 

parties, or upon the condition that the 

complainant will reimburse the 

employer in the event the employer 

ultimately prevails. 

OSHA disagrees that economic 

reinstatement without a mechanism for 

reimbursement violates the employer’s 

rights under the Due Process clause. The 

Supreme Court has addressed the issue 

of what is required to afford an 

employer procedural due process prior 

to ordering preliminary reinstatement in 

Brock v. Roadway Express, Inc., 481 

U.S. 252 (1987). In Roadway Express, 

the Court held that ‘‘minimum due 

process for the employer in this context 

requires notice of the employee’s 

allegations, notice of the substance of 

the relevant supporting evidence, an 

opportunity to submit a written 

response, and an opportunity to meet 

with the investigator and present 

statements from rebuttal witnesses.’’ Id. 

at 264. The Court did not require any 

mechanism for reimbursing the 

employer for wages paid during actual 

preliminary reinstatement should the 

employer ultimately prevail in the 

litigation. Because economic 

reinstatement is akin to actual 

reinstatement, OSHA believes the same 

requirements apply when ordering 

economic reinstatement. 

Furthermore, OSHA disagrees that 

there is no statutory basis for precluding 

reimbursement of economic 

reinstatement. As discussed above, 

Congress intended that employees be 

preliminarily reinstated to their 

positions if OSHA finds reasonable 

cause to believe that they were 

discharged in violation of SarbanesOxley. However, the statutory 

procedural scheme does not allow for 

reimbursement to the employer if actual 

preliminary reinstatement was ordered 

and yet the employer ultimately 

prevailed. Thus, there is no statutory 

basis to reimburse an employer in that 

instance. Because economic 

reinstatement is a substitute for 

preliminary reinstatement, this same 

reasoning would apply for not awarding 

an employer reimbursement for any 

front pay the employee receives should 

the employer ultimately prevail. OSHA 

therefore declines to allow for such 

reimbursement where Congress has not 

so provided. 

Subpart B—Litigation 

Section 1980.106 Objections to the 

Findings and the Preliminary Order and 

Request for a Hearing 

To be effective, objections to the 

findings of the Assistant Secretary must 

be in writing and must be filed with the 

Chief Administrative Law Judge, U.S. 

Department of Labor, within 30 days of 

receipt of the findings. The date of the 

postmark, facsimile transmittal, or 

electronic communication transmittal is 

considered the date of the filing; if the 

objection is filed in person, by handdelivery or other means, the objection is 

filed upon receipt. The filing of 

objections also is considered a request 

for a hearing before an ALJ. Although 

the parties are directed to serve a copy 

of their objections on the other parties 

of record, as well as the OSHA official 

who issued the findings and order, the 

Assistant Secretary, and the Department 

of Labor’s Associate Solicitor for Fair 

Labor Standards, the failure to serve 

copies of the objections on the other 

parties of record does not affect the 

ALJ’s jurisdiction to hear and decide the 

merits of the case. See Shirani v. Calvert 

Cliffs Nuclear Power Plant, Inc., ARB 

No. 04–101, 2005 WL 2865915, at *7 

(ARB Oct. 31, 2005). Throughout this 

section, minor changes were made as 

needed to clarify the provision without 

changing its meaning. 

The IFR revised paragraph (b) to note 

that a respondent’s motion to stay the 

Assistant Secretary’s preliminary order 

of reinstatement will be granted only 

based on exceptional circumstances. 

This revision clarified that a stay is only 

available in ‘‘exceptional 

circumstances,’’ because the Secretary 

believes that a stay of the Assistant 

Secretary’s preliminary order of 

reinstatement under Sarbanes-Oxley 

would be appropriate only where the 

respondent can establish the necessary 

criteria for equitable injunctive relief, 

i.e., irreparable injury, likelihood of 

success on the merits, and a balancing 

of possible harms to the parties, and the 

public interest favors a stay. 

SCSGP, EEAC, and Marshall 

commented on this section. Marshall 

wrote in support of this revision, noting 

that ‘‘[p]reliminary reinstatement 

protects a number of important values; 

it should be ordered and enforced 

unless the respondent is able to make a 

credible and persuasive showing that 

these values are overwhelmed.’’ SCSGP 

and EEAC requested that OSHA provide 

additional guidance regarding when a 

stay of an order for preliminary 

reinstatement would be appropriate. 

SCSGP suggested that OSHA modify 

paragraph (b) to provide ‘‘meaningful 

standards governing when an ALJ 

should stay a preliminary order of 

reinstatement.’’ SCSGP’s comment 

included concerns that the current 

standard, based on ‘‘exceptional 

circumstances,’’ may unduly constrain 

the ALJ’s discretion and authority, as 

well as leave the ALJ without guidance 

as to when a stay is appropriate. EEAC 

commented that in its view, the term 

‘‘‘exceptional circumstances’ implies a 

limitation far narrower than OSHA says 

that it intends.’’ EEAC recommended 

that the language in the preamble 

referring to the requirements to obtain 

equitable injunctive relief be added to 

the regulatory text. EEAC also suggested 

this addition to Section 1980.110(b), 

which covers appeals to the ARB. 

It is well established that the standard 

for a stay of preliminary reinstatement 

is the standard needed to obtain a 

preliminary injunction. A party must 

prove: Likely irreparable injury; 

likelihood of success on the merits; the 

balancing of hardships favors an 

injunction; and the public interest 

favors an injunction. Johnson v. U.S. 

Bancorp, ARB No. 13–014, 2013 WL 

2902820, at *2 (ARB May 21, 2013); see 

also Evans v. T-Mobil USA, Inc., ALJ 

No. 2012–SOX–00036 (ALJ May 21, 

2013) (granting stay of reinstatement). 

This traditional four-element test is 

applied in all federal courts. See Winter 

v. N.R.D.C., 555 U.S. 7, 20 (2008). The 

Department’s ALJs and ARB have also 

applied this standard in a number of 

cases prior to the issuance of the IFR. 

See, e.g., Welch v. Cardinal Bankshares 

Corp., No. 06–062, 2006 WL 3246902 

(ARB Mar. 31, 2006); Bechtel and 

Jacques v. Competitive Technologies, 

Inc., ALJ Nos. 2005–SOX–0033, 2005– 

SOX–0034, 2005 WL 4888999 (ALJ Mar. 

29, 2005). The regulation and its 

preamble, existing ALJ and ARB 

decisions, and other federal case law 

clearly delineate the standard for a 

successful motion to stay a preliminary 

order of reinstatement. OSHA thus 

declines to provide further guidance on 

this issue. 

EEAC also commented that there may 

be situations in which the complainant 

does not desire reinstatement, 

preliminary or otherwise. EEAC 

suggested the final rule contain 

language addressing this situation, 

allowing for the parties to come to an 

agreement to not order reinstatement. 

OSHA declines to include such 

language in this rule. Under SarbanesOxley, reinstatement of the complainant 

to his or her former position is the 

presumptive remedy in merit cases and 

is a critical component of making the 

complainant whole. As Marshall notes 

in his comment, actual reinstatement 

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protects interests that economic 

reinstatement cannot so effectively 

address. For example, reinstatement 

serves to reassure other employees 

through the complainant’s presence in 

the workplace that they too will be 

protected from retaliation for reporting 

violations of the law. By ordering 

preliminary reinstatement in cases 

involving discharge where OSHA has 

reasonable cause to believe that a 

statutory violation has occurred, OSHA 

properly places the burden upon the 

employer to make a bona fide offer of 

reinstatement. In doing so, OSHA also 

ensures that the employee is not forced 

to make a decision about whether he or 

she wants to return to the workplace 

until the employer actually makes such 

an offer. 

Section 1980.107 Hearings 

This section adopts the rules of 

practice and procedure for 

administrative hearings before the 

Office of Administrative Law Judges, as 

set forth in 29 CFR part 18 subpart A. 

Hearings are to commence 

expeditiously, except upon a showing of 

good cause or unless otherwise agreed 

to by the parties. Hearings will be 

conducted de novo, on the record. ALJs 

continue to have broad discretion to 

limit discovery where necessary to 

expedite the hearing. Formal rules of 

evidence will not apply, but rules or 

principles designed to assure 

production of the most probative 

evidence will be applied. The 

administrative law judge may exclude 

evidence that is immaterial, irrelevant, 

or unduly repetitious. Throughout this 

section, minor changes were made as 

needed to clarify the provision without 

changing its meaning. 

NWC commented in part on this 

section, requesting language be added to 

further protect the confidentiality of 

complainants. The discussion of the 

agency’s consideration of this comment 

is included in the discussion of Section 

1980.104, above. 

Section 1980.108 Role of Federal 

Agencies 

The Assistant Secretary, at his or her 

discretion, may participate as a party or 

amicus curiae at any time in the 

administrative proceedings under 

Sarbanes-Oxley. For example, the 

Assistant Secretary may exercise his or 

her discretion to prosecute the case in 

the administrative proceeding before an 

ALJ; petition for review of a decision of 

an ALJ, including a decision based on 

a settlement agreement between the 

complainant and the respondent, 

regardless of whether the Assistant 

Secretary participated before the ALJ; or 

participate as amicus curiae before the 

ALJ or in the ARB proceeding. Although 

OSHA anticipates that ordinarily the 

Assistant Secretary will not participate, 

the Assistant Secretary may choose to 

do so in appropriate cases, such as cases 

involving important or novel legal 

issues, multiple employees, alleged 

violations that appear egregious, or 

where the interests of justice might 

require participation by the Assistant 

Secretary. The Securities and Exchange 

Commission, if interested in a 

proceeding, also may participate as 

amicus curiae at any time in the 

proceedings. 

No comments were received on this 

section. However, paragraph (a)(2) has 

been revised to specify that parties must 

send copies of documents to OSHA and 

to the Associate Solicitor, Division of 

Fair Labor Standards, U.S. Department 

of Labor, only upon request of OSHA, or 

when OSHA is participating in the 

proceeding, or when service on OSHA 

and the Associate Solicitor is otherwise 

required by these rules. Other minor 

changes were made as needed to clarify 

the provision without changing its 

meaning. 

Section 1980.109 Decision and Orders 

of the Administrative Law Judge 

This section sets forth the 

requirements for the content of the 

decision and order of the ALJ, and 

includes the standard for finding a 

violation under Sarbanes-Oxley. 

Specifically, the complainant must 

demonstrate (i.e. prove by a 

preponderance of the evidence) that the 

protected activity was a ‘‘contributing 

factor’’ in the adverse action. See, e.g., 

Allen, 514 F.3d at 475 n.1 (‘‘The term 

‘demonstrates’ means to prove by a 

preponderance of the evidence.’’). If the 

employee demonstrates that the alleged 

protected activity was a contributing 

factor in the adverse action, the 

employer, to escape liability, must 

demonstrate by ‘‘clear and convincing 

evidence’’ that it would have taken the 

same action in the absence of the 

protected activity. See id. 

Paragraph (c) provides that OSHA’s 

determination to dismiss the complaint 

without an investigation or without a 

complete investigation pursuant to 

Section 1980.104 is not subject to 

review. Thus, Section 1980.109(c) 

clarifies that OSHA’s determinations on 

whether to proceed with an 

investigation under Sarbanes-Oxley and 

whether to make particular investigative 

findings are discretionary decisions not 

subject to review by the ALJ. The ALJ 

hears cases de novo and, therefore, as a 

general matter, may not remand cases to 

OSHA to conduct an investigation or 

make further factual findings. Paragraph 

(c) also clarifies that the ALJ can dispose 

of a matter without a hearing if the facts 

and circumstances warrant. In its 

comments, EEAC expressed support for 

this clarification. 

Paragraph (d) notes the remedies that 

the ALJ may order under the Act and 

provides that interest on back pay will 

be calculated using the interest rate 

applicable to underpayment of taxes 

under 26 U.S.C. 6621 and will be 

compounded daily. Paragraph (d) has 

been revised to note that when back pay 

is ordered, the order will also require 

the respondent to submit appropriate 

documentation to the Social Security 

Administration allocating any back pay 

award to the appropriate calendar 

quarters. Paragraph (e) requires that the 

ALJ’s decision be served on all parties 

to the proceeding, the Assistant 

Secretary, and the U.S. Department of 

Labor’s Associate Solicitor for Fair 

Labor Standards. Paragraph (e) also 

provides that any ALJ decision requiring 

reinstatement or lifting an order of 

reinstatement by the Assistant Secretary 

will be effective immediately upon 

receipt of the decision by the 

respondent. All other portions of the 

ALJ’s order will be effective 14 days 

after the date of the decision unless a 

timely petition for review has been filed 

with the ARB. 

No comments were received on this 

section. However, the statement that the 

decision of the ALJ will become the 

final order of the Secretary unless a 

petition for review is timely filed with 

the ARB and the ARB accepts the 

petition for review was deleted from 

Section 1980.110(a) and moved to 

paragraph (e) of this section. 

Additionally, OSHA has revised the 

period for filing a timely petition for 

review with the ARB to 14 days rather 

than 10 business days. With this change, 

the final rule expresses the time for a 

petition for review in a way that is 

consistent with the other deadlines for 

filings before the ALJs and the ARB in 

the rule, which are also expressed in 

days rather than business days. This 

change also makes the final rule 

congruent with the 2009 amendments to 

Rule 6(a) of the Federal Rules of Civil 

Procedure and Rule 26(a) of the Federal 

Rules of Appellate Procedure, which 

govern computation of time before the 

federal courts and express filing 

deadlines as days rather than business 

days. Accordingly, the ALJ’s order will 

become the final order of the Secretary 

14 days after the date of the decision, 

rather than after 10 business days, 

unless a timely petition for review is 

filed. As a practical matter, this revision 

does not substantively alter the window 

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of time for filing a petition for review 

before the ALJ’s order becomes final. 

Other minor changes were made as 

needed to clarify the provision without 

changing its meaning. 

Section 1980.110 Decision and Orders 

of the Administrative Review Board 

Upon the issuance of the ALJ’s 

decision, the parties have 14 days 

within which to petition the ARB for 

review of that decision. If no timely 

petition for review is filed with the 

ARB, the decision of the ALJ becomes 

the final decision of the Secretary and 

is not subject to judicial review. The 

date of the postmark, facsimile 

transmittal, or electronic 

communication transmittal is 

considered the date of filing of the 

petition; if the petition is filed in 

person, by hand delivery or other 

means, the petition is considered filed 

upon receipt. 

The appeal provisions in this part 

provide that an appeal to the ARB is not 

a matter of right but is accepted at the 

discretion of the ARB. The parties 

should identify in their petitions for 

review the legal conclusions or orders to 

which they object, or the objections may 

be deemed waived. The ARB has 30 

days to decide whether to grant the 

petition for review. If the ARB does not 

grant the petition, the decision of the 

ALJ becomes the final decision of the 

Secretary. If a timely petition for review 

is filed with the ARB, any relief ordered 

by the ALJ, except for that portion 

ordering reinstatement, is inoperative 

while the matter is pending before the 

ARB. When the ARB accepts a petition 

for review, the ALJ’s factual 

determinations will be reviewed under 

the substantial evidence standard. 

This section also provides that, based 

on exceptional circumstances, the ARB 

may grant a motion to stay an ALJ’s 

preliminary order of reinstatement 

under the Act, which otherwise would 

be effective, while review is conducted 

by the ARB. The Secretary believes that 

a stay of an ALJ’s preliminary order of 

reinstatement under Sarbanes-Oxley 

would be appropriate only where the 

respondent can establish the necessary 

criteria for equitable injunctive relief, 

i.e., irreparable injury, likelihood of 

success on the merits, a balancing of 

possible harms to the parties, and the 

public interest favors a stay. The EEAC’s 

comment regarding guidance on when a 

stay of preliminary reinstatement is 

appropriate addressed this provision of 

the rule, as well Section 1980.106(b). 

OSHA’s response to this comment is 

explained in detail above, in the 

discussion of Section 1980.106. 

If the ARB concludes that the 

respondent has violated the law, it will 

order the remedies listed in paragraph 

(d). Interest on back pay will be 

calculated using the interest rate 

applicable to underpayment of taxes 

under 26 U.S.C. 6621 and will be 

compounded daily. Paragraph (d) has 

been revised to note that when back pay 

is ordered, the order will also require 

the respondent to submit appropriate 

documentation to the Social Security 

Administration allocating any back pay 

award to the appropriate calendar 

quarters. If the ARB determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. 

NWC requested that the agency make 

several revisions to this section that 

would ‘‘further the goal of deciding 

cases on their merits.’’ The requested 

revisions included: (1) Change the time 

limit for a petition for review from 10 

days to 30 days; (2) require that a 

petition for review set forth legal issues 

showing good cause to allow full 

briefing; (3) change the provision that 

objections to legal conclusions not 

raised in petitions for review ‘‘will 

ordinarily’’ be deemed waived, to 

‘‘may’’ be deemed waived; and (4) 

specify in the regulation that the ARB 

may extend the time to submit petitions 

for review upon good cause shown. 

NWC stated that these revisions would 

‘‘advance the remedial purposes of the 

Act by lowering the procedural hurdles 

to a decision on the merits.’’ 

OSHA first notes that the IFR did use 

the phrase ‘‘may’’ be deemed waived 

regarding objections not specifically 

raised in a petition for review. This 

change was made as a result of 

comments submitted by NWC on other 

whistleblower rules published by 

OSHA. See, e.g., Procedures for the 

Handling of Retaliation Complaints 

Under Section 219 of the Consumer 

Product Safety Improvement Act of 

2008, 77 FR 40494, 40500–01 (July 10, 

2012); Procedures for the Handling of 

Retaliation Complaints Under the 

Employee Protection Provision of the 

Surface Transportation Assistance Act 

of 1982 (STAA), as Amended, 77 FR 

44121, 44131–32 (July 27, 2012). 

However, OSHA declines to adopt 

NWC’s additional suggestions relating to 

this section. First, OSHA declines to 

extend the time limit to petition for 

review because the shorter review 

period is consistent with the practices 

and procedures followed in OSHA’s 

other whistleblower programs. 

Furthermore, parties may file a motion 

for extension of time to appeal an ALJ’s 

decision, and the ARB has discretion to 

grant such extensions. However, as 

explained above, OSHA has revised the 

period to petition for review of an ALJ 

decision to 14 days rather than 10 

business days. As a practical matter, this 

revision does not substantively alter the 

window of time for filing a petition for 

review before the ALJ’s order becomes 

final. In addition, Section 1980.110(c), 

which provides that the ARB will issue 

a final decision within 120 days of the 

conclusion of the ALJ hearing, was 

similarly revised to state that the 

conclusion of the ALJ hearing will be 

deemed to be 14 days after the date of 

the decision of the ALJ, rather than after 

10 business days, unless a motion for 

reconsideration has been filed with the 

ALJ in the interim. Like the revision to 

Section 1980.110(a), this revision does 

not substantively alter the length of time 

before the ALJ hearing will be deemed 

to have been concluded. 

Finally, OSHA believes that use of the 

word ‘‘may,’’ as discussed above, 

adequately addresses NWC’s underlying 

concern that grounds not raised in a 

petition for review may be barred from 

consideration before the ARB. 

Non-substantive changes were made 

to paragraph (c) of this section to clarify 

when all hearings before an ALJ are 

considered concluded, and thus when 

the time for the ARB to issue a final 

decision begins to run. 

Subpart C—Miscellaneous Provisions 

Section 1980.111 Withdrawal of 

Complaints, Findings, Objections, and 

Petitions for Review; Settlement 

This section provides the procedures 

and time periods for withdrawal of 

complaints, the withdrawal of findings 

and/or preliminary orders by the 

Assistant Secretary, and the withdrawal 

of objections to findings and/or orders. 

It also provides for approval of 

settlements at the investigative and 

adjudicative stages of the case. No 

comments were received on this section. 

Minor changes were made as needed to 

this section and section title to clarify 

the provision without changing its 

meaning. 

Section 1980.112 Judicial Review 

This section describes the statutory 

provisions for judicial review of 

decisions of the Secretary and requires, 

in cases where judicial review is sought, 

that the ARB or the ALJ submit the 

record of proceedings to the appropriate 

court pursuant to the rules of such 

court. 

Mr. Levi commented on this section, 

stating that paragraph (b) created a new 

rule. Paragraph (b) provided, ‘‘A final 

order of the ARB is not subject to 

judicial review in any criminal or other 

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 11877 

civil proceeding.’’ As explained in the 

IFR, no new rules were added to this 

section; rather, the section was simply 

reorganized and renumbered. The 2004 

version of the rule concluded paragraph 

(a) with the sentence, ‘‘A final order of 

the Board is not subject to judicial 

review in any criminal or other civil 

proceeding.’’ This sentence 

implemented the statutory provision 

found at 49 U.S.C. 42121(b)(4)(B), 

‘‘Limitation on Collateral Attack,’’ 

adopted by the Act, which provides, 

‘‘[a]n order of the Secretary of Labor 

with respect to which review could 

have been obtained under subparagraph 

(A) shall not be subject to judicial 

review in any criminal or other civil 

proceeding.’’ This sentence was moved 

to be a stand-alone provision in 

paragraph (b) of the IFR. The word 

‘‘Board’’ was changed to ‘‘ARB;’’ 

however, both designations refer to the 

same body (Administrative Review 

Board). The old paragraph (b) was then 

renumbered to paragraph (c) in the IFR. 

The text of this paragraph was also 

slightly revised, as discussed in the 

preamble to the IFR, to clarify that 

‘‘rules of the court’’ refers to the Federal 

Rules of Appellate Procedure and local 

rules of the relevant federal court of 

appeals. Most of these non-substantive 

revisions have been adopted in this final 

rule. Paragraph (c) of the final rule has 

been revised to provide that ‘‘If a timely 

petition for review is filed, the record of 

a case, including the record of 

proceedings before the ALJ, will be 

transmitted by the ARB or the ALJ, as 

the case may be, to the appropriate court 

pursuant to the Federal Rules of 

Appellate Procedure and the local rules 

of such court.’’ This revision simply 

reflects that in some instances the ALJ, 

and not the ARB, will have possession 

of the record to be reviewed in the U.S. 

court of appeals. 

However, upon further review of the 

statutory language, OSHA has revised 

paragraph (b) in the final rule to more 

accurately reflect the statutory 

provisions found in AIR21, adopted by 

Sarbanes-Oxley. The rule as written 

previously and in the IFR referred only 

to limitation on collateral attack of final 

orders of the ARB. AIR21’s limitation on 

collateral attacks applies to all final 

orders of the Secretary. 49 U.S.C. 

42121(b)(4)(A)–(B). Thus, paragraph (b) 

has been revised accordingly. 

Section 1980.113 Judicial Enforcement 

This section describes the Secretary’s 

power under Sarbanes-Oxley to obtain 

judicial enforcement of orders and the 

terms of a settlement agreement. While 

some courts have declined to enforce 

preliminary orders of reinstatement 

under Sarbanes-Oxley, the Secretary’s 

consistent position has been that such 

orders are enforceable in federal district 

court. See Solis v. Tenn. Commerce 

Bancorp, Inc., No. 10–5602 (6th Cir. 

2010) (order granting stay of preliminary 

injunction); Bechtel v. Competitive 

Technologies, Inc., 448 F.3d 469 (2d Cir. 

2006); Welch v. Cardinal Bankshares 

Corp., 454 F. Supp. 2d 552 (W.D. Va. 

2006) (decision vacated, appeal 

dismissed, No. 06–2295 (4th Cir. Feb. 

20, 2008)). See also Brief for the 

Intervenor/Plaintiff-Appellee Secretary 

of Labor, Solis v. Tenn. Commerce 

Bancorp, Inc., No. 10–5602 (6th Cir. 

2010); Brief for the Intervenor/PlaintiffAppellant United States of America, 

Welch v. Cardinal Bankshares Corp., 

No. 06–2295 (4th Cir. Feb. 20, 2008); 

Brief for the Intervenor/PlaintiffAppellee Secretary of Labor, Bechtel v. 

Competitive Technologies, Inc., 448 

F.3d 469 (2d Cir. 2006) (No. 05–2402). 

In its comments, SCSGP asserted that 

‘‘this position is directly at odds with 

the express language of the statute and 

the federal court decisions that have 

addressed this issue. . . .’’ In support 

of its position, SCSGP cited the above 

decisions in Solis, Bechtel, and Welch. 

However, as noted by Marshall in its 

comment, an inspection of these cases 

shows that none of these decisions held 

by a majority that federal courts lack 

jurisdiction to enforce preliminary 

orders of reinstatement. In Bechtel, the 

Second Circuit vacated the preliminary 

order of reinstatement but failed to agree 

on a basis for which to do so. 448 F.3d 

at 476. In the three-judge panel, one 

judge found that the court lacked 

jurisdiction to enforce the order, thus 

holding to vacate the order. Id. at 470– 

76. A second judge found that the order 

could not be enforced on separate, due 

process grounds, and concurred in the 

result on this basis. Id. at 476–81. The 

third judge dissented from the result 

and found that the court did have 

jurisdiction to enforce orders of 

preliminary reinstatement. Id. at 483– 

90. Additionally, in Solis, the Sixth 

Circuit applied traditional injunctive 

relief standards (‘‘balancing of the 

harms’’) to grant a stay of a preliminary 

order of reinstatement and thus did not 

reach the jurisdictional issue on the 

merits. No. 10–5602, slip op. at 2 (6th 

Cir. May 25, 2010). Finally, in Welch, 

the district court granted the 

defendant’s motion to dismiss the 

complainant’s enforcement proceeding 

because the ALJ’s opinion did not make 

clear whether he was ordering 

preliminary reinstatement, as opposed 

to simply recommending reinstatement. 

407 F. Supp. 2d at 776–77. The court in 

Welch specifically noted that it was 

‘‘unnecessary to consider whether it 

would have had the authority to enforce 

the preliminary order of reinstatement 

had such an order been properly 

entered.’’ Id. at 777 n.2. Therefore, the 

Secretary’s position is not at odds with 

the federal courts that have addressed 

this issue, as none has reached the issue 

on the merits with a majority of the 

court. 

Additionally, the Secretary’s position 

is consistent with the plain language of 

the statute. By incorporating the 

procedures of AIR21, Sarbanes-Oxley 

authorizes district courts to enforce 

orders, including preliminary orders of 

reinstatement, issued by the Secretary 

under the Act. See 18 U.S.C. 

1514A(b)(2)(A) (adopting the rules and 

procedures set forth in AIR21, 49 U.S.C. 

42121(b)). Under 49 U.S.C. 42121(b), 

which provides the procedures 

applicable to investigations of 

whistleblower complaints under 

Sarbanes-Oxley, the Secretary must 

investigate complaints under the Act 

and determine whether there is 

reasonable cause to believe that a 

violation has occurred. ‘‘[I]f the 

Secretary of Labor concludes that there 

is a reasonable cause to believe that a 

violation . . . has occurred, the 

Secretary shall accompany the 

Secretary’s findings with a preliminary 

order providing the relief prescribed by 

paragraph (3)(B),’’ which includes 

reinstatement of the complainant to his 

or her former position. 49 U.S.C. 

42121(b)(2)(A) and (b)(3)(B)(ii). The 

respondent may file objections to the 

Secretary’s preliminary order and 

request a hearing. However, the filing of 

such objections ‘‘shall not operate to 

stay any reinstatement remedy 

contained in the preliminary order.’’ 49 

U.S.C. 42121(b)(2)(A). 

Paragraph (5) of 49 U.S.C. 42121(b) 

provides for judicial enforcement of the 

Secretary’s orders, including 

preliminary orders of reinstatement. 

That paragraph states ‘‘[w]henever any 

person has failed to comply with an 

order issued under paragraph (3), the 

Secretary of Labor may file a civil action 

in the United States district court for the 

district in which the violation was 

found to occur to enforce such order. In 

actions brought under this paragraph, 

the district courts shall have jurisdiction 

to grant all appropriate relief including, 

but not limited to, injunctive relief and 

compensatory damages.’’ 49 U.S.C. 

42121(b)(5). Preliminary orders that 

contain the relief of reinstatement 

prescribed by paragraph (3)(B) are 

judicially enforceable orders, issued 

under paragraph (3). Brief for the 

Intervenor/Plaintiff-Appellee Secretary 

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11878 Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 

of Labor, Solis v. Tenn. Commerce 

Bancorp, Inc., No. 10–5602, at 23–25 

(6th Cir. 2010). 

This analysis is not altered by the fact 

that paragraph (3) bears the heading 

‘‘Final Order.’’ SCSGP asserted that this 

title and paragraph (5)’s reference to 

only paragraph (3) provides clear and 

unmistakable language that preliminary 

orders are not final orders enforceable 

under paragraph (3). However, sections 

of a statute should not be read in 

isolation, but rather in conjunction with 

the provisions of the entire Act, 

considering both the object and policy 

of the Act. See, e.g., Brown & 

Williamson Tobacco Corp. v. FDA, 153 

F.3d 155, 162 (4th Cir. 1998), aff’d, 529 

U.S. 120 (2000). See also United States 

v. Buculei, 262 F.3d 322, 331 (4th Cir. 

2001) (a statute’s title cannot limit the 

plain meaning of its text), cert. denied, 

535 U.S. 962 (2002). Focusing on the 

title to subsection (b)(3) instead of 

reading section 42121(b) as a coherent 

whole negates the congressional 

directives that preliminary 

reinstatement must be ordered upon a 

finding of reasonable cause and that 

such orders not be stayed pending 

appeal. 49 U.S.C. 42121(b)(2)(A)’s clear 

statement that objections shall not stay 

any preliminary order of reinstatement 

demonstrates Congress’s intent that the 

Secretary’s preliminary orders of 

reinstatement be immediately effective. 

Reading 49 U.S.C. 42121(b)(5) to allow 

enforcement of such orders is the only 

way to effectuate this intent. 

Furthermore, the Secretary’s 

interpretation is buttressed by the 

legislative history of Sarbanes-Oxley 

and AIR21. Before Congress enacted 

Sarbanes-Oxley, the Department of 

Labor had interpreted this AIR21 

provision to permit judicial enforcement 

of preliminary reinstatement orders. 

Accordingly, Congress is presumed to 

have been aware of the Department’s 

interpretation of 49 U.S.C. 42121(b)(5) 

and to have adopted that interpretation 

when it incorporated that provision by 

reference. See Lorillard v. Pons, 434 

U.S. 575, 580–81 (1978) (‘‘[W]here . . . 

Congress adopts a new law 

incorporating sections of a prior law, 

Congress normally can be presumed to 

have had knowledge of the 

interpretation given to the incorporated 

law, at least insofar as it affects the new 

statute.’’). The Secretary’s interpretation 

is further supported by the legislative 

history of AIR21, which makes clear 

that Congress regarded preliminary 

reinstatement as crucial to the 

protections provided in the statute. Brief 

for the Intervenor/Plaintiff-Appellee 

Secretary of Labor, Solis v. Tenn. 

Commerce Bancorp, Inc., No. 10–5602, 

at 41–44 (6th Cir. 2010) (reviewing 

legislative history of AIR21). 

Interpreting 49 U.S.C. 42121(b)(5) to 

permit judicial enforcement of the 

Secretary’s preliminary orders of 

reinstatement is necessary to carry out 

Congress’ clearly expressed intent that 

whistleblowers be immediately 

reinstated upon the Secretary’s finding 

of reasonable cause to believe that 

retaliation has occurred. Sarbanes-Oxley 

also permits the person on whose behalf 

the order was issued under SarbanesOxley to obtain judicial enforcement of 

orders and the terms of a settlement 

agreement. 18 U.S.C. 1514A(b)(2)(A) 

incorporating 49 U.S.C. 42121(b)(6). 

Accordingly, OSHA declines to make 

the changes to this section suggested by 

SCSGP. 

OSHA has made two changes that are 

not intended to have substantive effects. 

First, OSHA has revised this section 

slightly to more closely parallel the 

provisions of the statute regarding the 

proper venue for an enforcement action. 

Second, the list of remedies that 

formerly appeared in this section has 

been moved to Section 1980.114. This 

revision does not reflect a change in the 

Secretary’s views regarding the 

remedies that are available under 

Sarbanes-Oxley in an action to enforce 

an order of the Secretary. The revision 

has been made to better parallel the 

statutory structure of Sarbanes-Oxley 

and AIR21, which contemplate 

enforcement of a Secretary’s order and 

specify the remedies that are available 

in an action for de novo review of a 

retaliation complaint in district court. 

Compare 49 U.S.C. 42121(b)(5) and (6) 

to 18 U.S.C. 1514A(c). 

Section 1980.114 District Court 

Jurisdiction Over Retaliation 

Complaints 

This section sets forth SarbanesOxley’s provisions allowing a 

complainant to bring an original de 

novo action in district court, alleging 

the same allegations contained in the 

complaint filed with OSHA, if there has 

been no final decision of the Secretary 

within 180 days of the filing of the 

complaint. It is the Secretary’s position 

that complainants may not initiate an 

action in federal court after the 

Secretary issues a final decision, even if 

the date of the final decision is more 

than 180 days after the filing of the 

complaint. The purpose of the ‘‘kickout’’ provision is to aid the complainant 

in receiving a prompt decision. That 

goal is not implicated in a situation 

where the complainant already has 

received a final decision from the 

Secretary. In addition, permitting the 

complainant to file a new case in 

district court in such circumstances 

could conflict with the parties’ rights to 

seek judicial review of the Secretary’s 

final decision in the court of appeals. 

OSHA received two comments on the 

inclusion of this statement of the 

Secretary’s position in the preamble to 

the IFR. Mr. Levi wrote in opposition to 

this language, while the EEAC wrote in 

support of this language, and requested 

that it be inserted into the regulatory 

text. Mr. Levi noted his belief that this 

position is in conflict with the rule 

itself, which allows complainants to 

‘‘kick-out’’ under the specified 

circumstances. To support his position, 

Mr. Levi quoted from the preamble to 

the 2004 version of the rules. In that 

preamble, the agency stated, and Mr. 

Levi quoted, ‘‘The Act might even be 

interpreted to allow a complainant to 

bring an action in Federal court after 

receiving a final decision from the 

Board, if that decision was issued more 

than 180 days after the filing of the 

complaint.’’ 69 FR 52111(Aug. 24, 

2004). The 2004 preamble used the 

words ‘‘might even’’ to denote that this 

is a possible interpretation of the 

language. However, in that preamble, 

the agency went on to state, ‘‘The 

Secretary believes that it would be a 

waste of the resources of the parties, the 

Department, and the courts for 

complainants to pursue duplicative 

litigation.’’ Id. The language in the 

preamble to the 2011 IFR, continued 

and retained above, simply asserts the 

Secretary’s longstanding position, 

which is consistent with the statute, the 

2004 rule, the 2004 preamble language, 

and the 2011 rule, that once a 

complainant has received a final 

decision from the Secretary, the goal of 

the ‘‘kick-out’’ provision is no longer 

implicated. 

Mr. Levi also commented that this 

position creates an impediment to a 

complainant’s right to access the federal 

district courts, and forces the 

complainant to give up one right or 

another: Access to the ARB or access to 

the district courts. However, as 

discussed above, the Secretary believes 

that access to district courts under this 

provision is intended to provide the 

complainant with a speedy adjudication 

of his complaint; it is not intended to 

create two simultaneous proceedings or 

a de novo review of an unfavorable 

determination by the Secretary. 

Congress provided a clear avenue for 

review in federal courts of a final order. 

As provided in Section 1980.112, either 

party aggrieved by a final order of the 

ALJ or ARB may still appeal to the 

federal courts of appeals. The 

Secretary’s position does not adversely 

affect this right, but rather is intended 

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to prevent interference with this right. 

Therefore, after considering Mr. Levi 

and EEAC’s comments, the agency has 

decided to retain the language in the 

preamble to the rule, but refrain from 

adding it to the regulatory text. 

The IFR amended paragraph (b) of 

this section to require complainants to 

provide file-stamped copies of their 

complaint within seven days after filing 

a complaint in district court to the 

Assistant Secretary, the ALJ, or the ARB, 

depending on where the proceeding is 

pending, rather than requiring such 

notice fifteen days in advance of such 

filing. The IFR noted a copy of the 

complaint also must be provided to the 

Regional Administrator, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor. This provision is 

necessary to notify the agency that the 

complainant has opted to file a 

complaint in district court. This 

provision is not a substitute for the 

complainant’s compliance with the 

requirements for service of process of 

the district court complaint contained in 

the Federal Rules of Civil Procedure and 

the local rules of the district court 

where the complaint is filed. These 

revisions are continued in this final 

rule. However, OSHA has replaced the 

requirement of providing a copy of the 

complaint to the Regional Administrator 

with a requirement that a copy be 

provided to the ‘‘OSHA official who 

issued the findings and/or preliminary 

order.’’ This non-substantive change is 

intended to reflect that an official other 

than the Regional Administrator may be 

the official who issued the findings and/ 

or preliminary order. 

The NWC noted its appreciation for 

this revision to the rule, and suggested 

that ‘‘[t]he Department’s wise policy on 

notice . . . should now be replicated in 

the Department’s regulations under 

other whistleblower protection laws.’’ 

OSHA is conducting several 

rulemakings for whistleblower 

proceedings at this time and intends to 

include this revised notice provision 

where applicable. 

In addition to the changes noted 

above, OSHA has revised this section to 

clarify the provision and more closely 

mirror the language used in the statute. 

For example, paragraph (b) now 

incorporates the provisions of the 

statute specifying the remedies and 

burdens of proof in a district court 

action. 

Section 1980.115 Special 

Circumstances; Waiver of Rules 

This section provides that in 

circumstances not contemplated by 

these rules or for good cause the ALJ or 

the ARB may, upon application and 

notice to the parties, waive any rule as 

justice or the administration of 

Sarbanes-Oxley requires. No comments 

were received on this section. 

IV. Paperwork Reduction Act. 

This rule contains a reporting 

provision (filing a retaliation complaint, 

Section 1980.103) which was previously 

reviewed and approved for use by the 

Office of Management and Budget 

(OMB) under the provisions of the 

Paperwork Reduction Act of 1995 (Pub. 

L. 104–13). The assigned OMB control 

number is 1218–0236. 

V. Administrative Procedure Act. 

The notice and comment rulemaking 

procedures of Section 553 of the 

Administrative Procedure Act (APA) do 

not apply to ‘‘interpretive rules, general 

statements of policy, or rules of agency 

organization, procedure, or practice.’’ 5 

U.S.C. 553(b)(A). Part 1980 sets forth 

interpretive rules and rules of agency 

procedure and practice within the 

meaning of that section. Therefore, 

publication in the Federal Register of a 

notice of proposed rulemaking and 

request for comments was not required. 

Although Part 1980 was not subject to 

the notice and comment procedures of 

the APA, the Assistant Secretary sought 

and considered comments to enable the 

agency to improve the rules by taking 

into account the concerns of interested 

persons. 

Furthermore, because this rule is 

procedural and interpretive rather than 

substantive, the normal requirement of 

5 U.S.C. 553(d) that a rule not be 

effective until at least 30 days after 

publication in the Federal Register is 

inapplicable. The Assistant Secretary 

also finds good cause to provide an 

immediate effective date for this rule. It 

is in the public interest that the rule be 

effective immediately so that parties 

may know what procedures are 

applicable to pending cases. Most of the 

provisions of this rule were in the IFR 

and have already been in effect since 

November 3, 2011, so a delayed 

effective date is unnecessary. 

VI. Executive Orders 12866 and 13563; 

Unfunded Mandates Reform Act of 

1995; Executive Order 13132 

The Department has concluded that 

this rule is not a ‘‘significant regulatory 

action’’ within the meaning of Executive 

Order 12866, reaffirmed by Executive 

Order 13563, because it is not likely to: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; (2) create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in Executive Order 12866. 

Therefore, no economic impact analysis 

under Section 6(a)(3)(C) of Executive 

Order 12866 has been prepared. For the 

same reason, and because no notice of 

proposed rulemaking was published, no 

statement is required under Section 202 

of the Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1532. In any event, this 

rulemaking is procedural and 

interpretive in nature and is thus not 

expected to have a significant economic 

impact. Finally, this rule does not have 

‘‘federalism implications.’’ The rule 

does not have ‘‘substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government’’ and 

therefore is not subject to Executive 

Order 13132 (Federalism). 

VII. Regulatory Flexibility Analysis 

The notice and comment rulemaking 

procedures of Section 553 of the APA 

do not apply ‘‘to interpretative rules, 

general statements of policy, or rules of 

agency organization, procedure, or 

practice.’’ 5 U.S.C. 553(b)(A). Rules that 

are exempt from APA notice and 

comment requirements are also exempt 

from the Regulatory Flexibility Act 

(RFA). See SBA Office of Advocacy, A 

Guide for Government Agencies: How to 

Comply with the Regulatory Flexibility 

Act 9 (May 2012); also found at: http:// 

www.sba.gov/sites/default/files/

rfaguide_0512_0.pdf*. This is a rule of 

agency procedure, practice, and 

interpretation within the meaning of 

that section; and therefore the rule is 

exempt from both the notice and 

comment rulemaking procedures of the 

APA and the requirements under the 

RFA. 

List of Subjects in 29 CFR Part 1980 

Administrative practice and 

procedure, Corporate fraud, 

Employment, Investigations, Reporting 

and recordkeeping requirements, 

Whistleblower. 

Authority and Signature 

This document was prepared under 

the direction and control of David 

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11880 Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 

Michaels, Ph.D., MPH, Assistant 

Secretary of Labor for Occupational 

Safety and Health. 

Signed at Washington, DC on February 25, 

2015. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

Accordingly, for the reasons set out in 

the preamble, 29 CFR part 1980 is 

revised to read as follows: 

PART 1980—PROCEDURES FOR THE 

HANDLING OF RETALIATION 

COMPLAINTS UNDER SECTION 806 

OF THE SARBANES-OXLEY ACT OF 

2002, AS AMENDED. 

Subpart A—Complaints, Investigations, 

Findings and Preliminary Orders 

Sec: 

1980.100 Purpose and scope. 

1980.101 Definitions. 

1980.102 Obligations and prohibited acts. 

1980.103 Filing of retaliation complaints. 

1980.104 Investigation. 

1980.105 Issuance of findings and 

preliminary orders. 

Subpart B—Litigation. 

1980.106 Objections to the findings and the 

preliminary order and request for a 

hearing. 

1980.107 Hearings. 

1980.108 Role of Federal agencies. 

1980.109 Decision and orders of the 

administrative law judge. 

1980.110 Decision and orders of the 

Administrative Review Board. 

Subpart C—Miscellaneous Provisions 

1980.111 Withdrawal of complaints, 

findings, objections, and petitions for 

review; settlement. 

1980.112 Judicial review. 

1980.113 Judicial enforcement. 

1980.114 District court jurisdiction over 

retaliation complaints. 

1980.115 Special circumstances; waiver of 

rules. 

Authority: 18 U.S.C. 1514A, as amended 

by the Dodd-Frank Wall Street Reform and 

Consumer Protection Act of 2010, Pub. L. 

111–203 (July 21, 2010); Secretary of Labor’s 

Order No. 01–2012 (Jan. 18, 2012), 77 FR 

3912 (Jan. 25, 2012); Secretary of Labor’s 

Order No. 2–2012 (Oct. 19, 2012), 77 FR 

69378 (Nov. 16, 2012). 

Subpart A—Complaints, 

Investigations, Findings and 

Preliminary Orders 

§ 1980.100 Purpose and scope. 

(a) This part implements procedures 

under section 806 of the Corporate and 

Criminal Fraud Accountability Act of 

2002, Title VIII of the Sarbanes-Oxley 

Act of 2002 (Sarbanes-Oxley or Act), 

enacted into law July 30, 2002, as 

amended by the Dodd-Frank Wall Street 

Reform and Consumer Protection Act of 

2010, enacted into law July 21, 2010. 

Sarbanes-Oxley provides for employee 

protection from retaliation by 

companies, their subsidiaries and 

affiliates, officers, employees, 

contractors, subcontractors, and agents 

because the employee has engaged in 

protected activity pertaining to a 

violation or alleged violation of 18 

U.S.C. 1341, 1343, 1344, or 1348, or any 

rule or regulation of the Securities and 

Exchange Commission, or any provision 

of Federal law relating to fraud against 

shareholders. Sarbanes-Oxley also 

provides for employee protection from 

retaliation by nationally recognized 

statistical rating organizations, their 

officers, employees, contractors, 

subcontractors or agents because the 

employee has engaged in protected 

activity. 

(b) This part establishes procedures 

pursuant to Sarbanes-Oxley for the 

expeditious handling of retaliation 

complaints made by employees, or by 

persons acting on their behalf and sets 

forth the Secretary’s interpretations of 

the Act on certain statutory issues. 

These rules, together with those 

codified at 29 CFR part 18, set forth the 

procedures for submission of 

complaints under Sarbanes-Oxley, 

investigations, issuance of findings and 

preliminary orders, objections to 

findings and orders, litigation before 

administrative law judges, post-hearing 

administrative review, withdrawals, and 

settlements. 

§ 1980.101 Definitions. 

As used in this part: 

(a) Act means section 806 of the 

Corporate and Criminal Fraud 

Accountability Act of 2002, Title VIII of 

the Sarbanes-Oxley Act of 2002, Pub. L. 

107–204, July 30, 2002, codified at 18 

U.S.C. 1514A, as amended by the DoddFrank Wall Street Reform and Consumer 

Protection Act of 2010, Pub. L. 111–203, 

July 21, 2010. 

(b) Assistant Secretary means the 

Assistant Secretary of Labor for 

Occupational Safety and Health or the 

person or persons to whom he or she 

delegates authority under the Act. 

(c) Business days means days other 

than Saturdays, Sundays, and Federal 

holidays. 

(d) Company means any company 

with a class of securities registered 

under section 12 of the Securities 

Exchange Act of 1934 (15 U.S.C. 78l) or 

any company required to file reports 

under section 15(d) of the Securities 

Exchange Act of 1934 (15 U.S.C. 78o(d)) 

including any subsidiary or affiliate 

whose financial information is included 

in the consolidated financial statements 

of such company. 

(e) Complainant means the employee 

who filed a complaint under the Act or 

on whose behalf a complaint was filed. 

(f) Covered person means any 

company, including any subsidiary or 

affiliate whose financial information is 

included in the consolidated financial 

statements of such company, or any 

nationally recognized statistical rating 

organization, or any officer, employee, 

contractor, subcontractor, or agent of 

such company or nationally recognized 

statistical rating organization. 

(g) Employee means an individual 

presently or formerly working for a 

covered person, an individual applying 

to work for a covered person, or an 

individual whose employment could be 

affected by a covered person. 

(h) Nationally recognized statistical 

rating organization means a credit rating 

agency under 15 U.S.C. 78c(61) that: 

(1) Issues credit ratings certified by 

qualified institutional buyers, in 

accordance with 15 U.S.C. 78o– 

7(a)(1)(B)(ix), with respect to: 

(i) Financial institutions, brokers, or 

dealers; 

(ii) Insurance companies; 

(iii) Corporate issuers; 

(iv) Issuers of asset-backed securities 

(as that term is defined in section 

1101(c) of part 229 of title 17, Code of 

Federal Regulations, as in effect on 

September 29, 2006); 

(v) Issuers of government securities, 

municipal securities, or securities 

issued by a foreign government; or 

(vi) A combination of one or more 

categories of obligors described in any 

of paragraphs (h)(1)(i) through (v) of this 

section; and 

(2) Is registered under 15 U.S.C. 78o7. 

(i) OSHA means the Occupational 

Safety and Health Administration of the 

United States Department of Labor. 

(j) Person means one or more 

individuals, partnerships, associations, 

companies, corporations, business 

trusts, legal representatives or any group 

of persons. 

(k) Respondent means the person 

named in the complaint who is alleged 

to have violated the Act. 

(l) Secretary means the Secretary of 

Labor or persons to whom authority 

under the Act has been delegated. 

(m) Any future statutory amendments 

that affect the definition of a term or 

terms listed in this section will apply in 

lieu of the definition stated herein. 

§ 1980.102 Obligations and prohibited 

acts. 

(a) No covered person may discharge, 

demote, suspend, threaten, harass or in 

any other manner retaliate against, 

including, but not limited to, 

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intimidating, threatening, restraining, 

coercing, blacklisting or disciplining, 

any employee with respect to the 

employee’s compensation, terms, 

conditions, or privileges of employment 

because the employee, or any person 

acting pursuant to the employee’s 

request, has engaged in any of the 

activities specified in paragraphs (b)(1) 

and (2) of this section. 

(b) An employee is protected against 

retaliation (as described in paragraph (a) 

of this section) by a covered person for 

any lawful act done by the employee: 

(1) To provide information, cause 

information to be provided, or otherwise 

assist in an investigation regarding any 

conduct which the employee reasonably 

believes constitutes a violation of 18 

U.S.C. 1341, 1343, 1344, or 1348, any 

rule or regulation of the Securities and 

Exchange Commission, or any provision 

of Federal law relating to fraud against 

shareholders, when the information or 

assistance is provided to or the 

investigation is conducted by— 

(i) A Federal regulatory or law 

enforcement agency; 

(ii) Any Member of Congress or any 

committee of Congress; or 

(iii) A person with supervisory 

authority over the employee (or such 

other person working for the employer 

who has the authority to investigate, 

discover, or terminate misconduct); or 

(2) To file, cause to be filed, testify, 

participate in, or otherwise assist in a 

proceeding filed or about to be filed 

(with any knowledge of the employer) 

relating to an alleged violation of 18 

U.S.C. 1341, 1343, 1344, or 1348, any 

rule or regulation of the Securities and 

Exchange Commission, or any provision 

of Federal law relating to fraud against 

shareholders. 

§ 1980.103 Filing of retaliation complaints. 

(a) Who may file. An employee who 

believes that he or she has been 

retaliated against by a covered person in 

violation of the Act may file, or have 

filed on the employee’s behalf, a 

complaint alleging such retaliation. 

(b) Nature of filing. No particular form 

of complaint is required. A complaint 

may be filed orally or in writing. Oral 

complaints will be reduced to writing 

by OSHA. If the complainant is unable 

to file the complaint in English, OSHA 

will accept the complaint in any 

language. 

(c) Place of filing. The complaint 

should be filed with the OSHA office 

responsible for enforcement activities in 

the geographical area where the 

employee resides or was employed, but 

may be filed with any OSHA officer or 

employee. Addresses and telephone 

numbers for these officials are set forth 

in local directories and at the following 

Internet address: http://www.osha.gov. 

(d) Time for filing. Within 180 days 

after an alleged violation of the Act 

occurs or after the date on which the 

employee became aware of the alleged 

violation of the Act, any employee who 

believes that he or she has been 

retaliated against in violation of the Act 

may file, or have filed on the employee’s 

behalf, a complaint alleging such 

retaliation. The date of the postmark, 

facsimile transmittal, electronic 

communication transmittal, telephone 

call, hand-delivery, delivery to a thirdparty commercial carrier, or in-person 

filing at an OSHA office will be 

considered the date of filing. The time 

for filing a complaint may be tolled for 

reasons warranted by applicable case 

law. For example, OSHA may consider 

the time for filing a complaint equitably 

tolled if a complainant mistakenly files 

a complaint with the another agency 

instead of OSHA within 180 days after 

becoming aware of the alleged violation. 

§ 1980.104 Investigation. 

(a) Upon receipt of a complaint in the 

investigating office, OSHA will notify 

the respondent of the filing of the 

complaint, of the allegations contained 

in the complaint, and of the substance 

of the evidence supporting the 

complaint. Such materials will be 

redacted, if necessary, in accordance 

with the Privacy Act of 1974, 5 U.S.C. 

552a, et seq., and other applicable 

confidentiality laws. OSHA will also 

notify the respondent of its rights under 

paragraphs (b) and (f) of this section and 

§ 1980.110(e). OSHA will provide an 

unredacted copy of these same materials 

to the complainant (or complainant’s 

legal counsel, if complainant is 

represented by counsel) and to the 

Securities and Exchange Commission. 

(b) Within 20 days of receipt of the 

notice of the filing of the complaint 

provided under paragraph (a) of this 

section, the respondent may submit to 

OSHA a written statement and any 

affidavits or documents substantiating 

its position. Within the same 20 days, 

the respondent may request a meeting 

with OSHA to present its position. 

(c) During the investigation, OSHA 

will request that each party provide the 

other parties to the whistleblower 

complaint with a copy of submissions to 

OSHA that are pertinent to the 

whistleblower complaint. Alternatively, 

if a party does not provide its 

submissions to OSHA to the other party, 

OSHA will provide them to the other 

party (or the party’s legal counsel if the 

party is represented by counsel) at a 

time permitting the other party an 

opportunity to respond. Before 

providing such materials to the other 

party, OSHA will redact them, if 

necessary, consistent with the Privacy 

Act of 1974, 5 U.S.C. 552a, and other 

applicable confidentiality laws. OSHA 

will also provide each party with an 

opportunity to respond to the other 

party’s submissions. 

(d) Investigations will be conducted 

in a manner that protects the 

confidentiality of any person who 

provides information on a confidential 

basis, other than the complainant, in 

accordance with part 70 of this title. 

(e)(1) A complaint will be dismissed 

unless the complainant has made a 

prima facie showing that a protected 

activity was a contributing factor in the 

adverse action alleged in the complaint. 

(2) The complaint, supplemented as 

appropriate by interviews of the 

complainant, must allege the existence 

of facts and evidence to make a prima 

facie showing as follows: 

(i) The employee engaged in a 

protected activity; 

(ii) The respondent knew or suspected 

that the employee engaged in the 

protected activity; 

(iii) The employee suffered an adverse 

action; and 

(iv) The circumstances were sufficient 

to raise the inference that the protected 

activity was a contributing factor in the 

adverse action. 

(3) For purposes of determining 

whether to investigate, the complainant 

will be considered to have met the 

required burden if the complaint on its 

face, supplemented as appropriate 

through interviews of the complainant, 

alleges the existence of facts and either 

direct or circumstantial evidence to 

meet the required showing, i.e., to give 

rise to an inference that the respondent 

knew or suspected that the employee 

engaged in protected activity and that 

the protected activity was a contributing 

factor in the adverse action. The burden 

may be satisfied, for example, if the 

complaint shows that the adverse 

personnel action took place within a 

temporal proximity after the protected 

activity, or at the first opportunity 

available to respondent, giving rise to 

the inference that it was a contributing 

factor in the adverse action. If the 

required showing has not been made, 

the complainant (or the complainant’s 

legal counsel, if complainant is 

represented by counsel) will be so 

notified and the investigation will not 

commence. 

(4) Notwithstanding a finding that a 

complainant has made a prima facie 

showing, as required by this section, 

further investigation of the complaint 

will not be conducted if the respondent 

demonstrates by clear and convincing 

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evidence that it would have taken the 

same adverse action in the absence of 

the complainant’s protected activity. 

(5) If the respondent fails to make a 

timely response or fails to satisfy the 

burden set forth in the prior paragraph, 

OSHA will proceed with the 

investigation. The investigation will 

proceed whenever it is necessary or 

appropriate to confirm or verify the 

information provided by the 

respondent. 

(f) Prior to the issuance of findings 

and a preliminary order as provided for 

in § 1980.105, if OSHA has reasonable 

cause, on the basis of information 

gathered under the procedures of this 

part, to believe that the respondent has 

violated the Act and that preliminary 

reinstatement is warranted, OSHA will 

contact the respondent (or the 

respondent’s legal counsel, if 

respondent is represented by counsel) to 

give notice of the substance of the 

relevant evidence supporting the 

complainant’s allegations as developed 

during the course of the investigation. 

This evidence includes any witness 

statements, which will be redacted to 

protect the identity of confidential 

informants where statements were given 

in confidence; if the statements cannot 

be redacted without revealing the 

identity of confidential informants, 

summaries of their contents will be 

provided. The complainant will also 

receive a copy of the materials that must 

be provided to the respondent under 

this paragraph. Before providing such 

materials to the complainant, OSHA 

will redact them, if necessary, in 

accordance with the Privacy Act of 

1974, 5 U.S.C. 552a, and other 

applicable confidentiality laws. The 

respondent will be given the 

opportunity to submit a written 

response, to meet with the investigator, 

to present statements from witnesses in 

support of its position, and to present 

legal and factual arguments. The 

respondent will present this evidence 

within 10 business days of OSHA’s 

notification pursuant to this paragraph, 

or as soon afterwards as OSHA and the 

respondent can agree, if the interests of 

justice so require. 

§ 1980.105 Issuance of findings and 

preliminary orders. 

(a) After considering all the relevant 

information collected during the 

investigation, the Assistant Secretary 

shall issue, within 60 days of the filing 

of the complaint, written findings as to 

whether or not there is reasonable cause 

to believe that the respondent has 

retaliated against the complainant in 

violation of the Act. 

(1) If the Assistant Secretary 

concludes that there is reasonable cause 

to believe that a violation has occurred, 

the Assistant Secretary will accompany 

the findings with a preliminary order 

providing relief to the complainant. The 

preliminary order will include all relief 

necessary to make the employee whole, 

including reinstatement with the same 

seniority status that the complainant 

would have had but for the retaliation; 

back pay with interest; and 

compensation for any special damages 

sustained as a result of the retaliation, 

including litigation costs, expert witness 

fees, and reasonable attorney fees. 

Interest on back pay will be calculated 

using the interest rate applicable to 

underpayment of taxes under 26 U.S.C. 

6621 and will be compounded daily. 

The preliminary order will also require 

the respondent to submit appropriate 

documentation to the Social Security 

Administration allocating any back pay 

award to the appropriate calendar 

quarters. 

(2) If the Assistant Secretary 

concludes that a violation has not 

occurred, the Assistant Secretary will 

notify the parties of that finding. 

(b) The findings, and where 

appropriate, the preliminary order will 

be sent by certified mail, return receipt 

requested (or other means that allow 

OSHA to confirm receipt), to all parties 

of record (and each party’s legal counsel 

if the party is represented by counsel). 

The findings, and where appropriate, 

the preliminary order will inform the 

parties of the right to object to the 

findings and/or order and to request a 

hearing, and of the right of the 

respondent to request an award of 

attorney fees not exceeding $1,000 from 

the administrative law judge (ALJ) 

regardless of whether the respondent 

has filed objections, if the complaint 

was frivolous or brought in bad faith. 

The findings, and where appropriate, 

the preliminary order, also will give the 

address of the Chief Administrative Law 

Judge, U.S. Department of Labor. At the 

same time, the Assistant Secretary will 

file with the Chief Administrative Law 

Judge a copy of the original complaint 

and a copy of the findings and/or order. 

(c) The findings and any preliminary 

order will be effective 30 days after 

receipt by the respondent (or the 

respondent’s legal counsel if the 

respondent is represented by counsel), 

or on the compliance date set forth in 

the preliminary order, whichever is 

later, unless an objection and/or a 

request for hearing has been timely filed 

as provided at § 1980.106. However, the 

portion of any preliminary order 

requiring reinstatement will be effective 

immediately upon the respondent’s 

receipt of the findings and the 

preliminary order, regardless of any 

objections to the findings and/or the 

order. 

Subpart B—Litigation 

§ 1980.106 Objections to the findings and 

the preliminary order and request for a 

hearing. 

(a) Any party who desires review, 

including judicial review, of the 

findings and preliminary order, or a 

respondent alleging that the complaint 

was frivolous or brought in bad faith 

who seeks an award of attorney fees 

under the Act, must file any objections 

and/or a request for a hearing on the 

record within 30 days of receipt of the 

findings and preliminary order pursuant 

to § 1980.105(b). The objections and/or 

request for a hearing must be in writing 

and state whether the objections are to 

the findings and/or the preliminary 

order, and/or whether there should be 

an award of attorney fees. The date of 

the postmark, facsimile transmittal, or 

electronic communication transmittal is 

considered the date of filing; if the 

objection is filed in person, by handdelivery or other means, the objection is 

filed upon receipt. Objections must be 

filed with the Chief Administrative Law 

Judge, U.S. Department of Labor, and 

copies of the objections must be mailed 

at the same time to the other parties of 

record, the OSHA official who issued 

the findings and order, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor. 

(b) If a timely objection is filed, all 

provisions of the preliminary order will 

be stayed, except for the portion 

requiring preliminary reinstatement, 

which will not be automatically stayed. 

The portion of the preliminary order 

requiring reinstatement will be effective 

immediately upon the respondent’s 

receipt of the findings and preliminary 

order, regardless of any objections to the 

order. The respondent may file a motion 

with the Office of Administrative Law 

Judges for a stay of the Assistant 

Secretary’s preliminary order of 

reinstatement, which shall be granted 

only based on exceptional 

circumstances. If no timely objection is 

filed with respect to either the findings 

or the preliminary order, the findings 

and/or preliminary order will become 

the final decision of the Secretary, not 

subject to judicial review. 

§ 1980.107 Hearings. 

(a) Except as provided in this part, 

proceedings will be conducted in 

accordance with the rules of practice 

and procedure for administrative 

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hearings before the Office of 

Administrative Law Judges, codified at 

subpart A of part 18 of this title. 

(b) Upon receipt of an objection and 

request for hearing, the Chief 

Administrative Law Judge will promptly 

assign the case to an ALJ who will 

notify the parties, by certified mail, of 

the day, time, and place of hearing. The 

hearing is to commence expeditiously, 

except upon a showing of good cause or 

unless otherwise agreed to by the 

parties. Hearings will be conducted de 

novo, on the record. ALJs have broad 

discretion to limit discovery in order to 

expedite the hearing. 

(c) If both the complainant and the 

respondent object to the findings and/or 

order, the objections will be 

consolidated and a single hearing will 

be conducted. 

(d) Formal rules of evidence will not 

apply, but rules or principles designed 

to assure production of the most 

probative evidence will be applied. The 

ALJ may exclude evidence that is 

immaterial, irrelevant, or unduly 

repetitious. 

§ 1980.108 Role of Federal agencies. 

(a)(1) The complainant and the 

respondent will be parties in every 

proceeding and must be served with 

copies of all documents in the case. At 

the Assistant Secretary’s discretion, the 

Assistant Secretary may participate as a 

party or as amicus curiae at any time at 

any stage of the proceeding. This right 

to participate includes, but is not 

limited to, the right to petition for 

review of a decision of an ALJ, 

including a decision approving or 

rejecting a settlement agreement 

between the complainant and the 

respondent. 

(2) Parties must send copies of 

documents to OSHA and to the 

Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor, only upon request of OSHA, or 

when OSHA is participating in the 

proceeding, or when service on OSHA 

and the Associate Solicitor is otherwise 

required by these rules. 

(b) The Securities and Exchange 

Commission, if interested in a 

proceeding, may participate as amicus 

curiae at any time in the proceeding, at 

the Commission’s discretion. At the 

request of the Securities and Exchange 

Commission, copies of all documents in 

a case must be sent to the Commission, 

whether or not the Commission is 

participating in the proceeding. 

§ 1980.109 Decision and orders of the 

administrative law judge. 

(a) The decision of the ALJ will 

contain appropriate findings, 

conclusions, and an order pertaining to 

the remedies provided in paragraph (d) 

of this section, as appropriate. A 

determination that a violation has 

occurred may be made only if the 

complainant has demonstrated by a 

preponderance of the evidence that 

protected activity was a contributing 

factor in the adverse action alleged in 

the complaint. 

(b) If the complainant has satisfied the 

burden set forth in the prior paragraph, 

relief may not be ordered if the 

respondent demonstrates by clear and 

convincing evidence that it would have 

taken the same adverse action in the 

absence of any protected activity. 

(c) Neither OSHA’s determination to 

dismiss a complaint without completing 

an investigation pursuant to 

§ 1980.104(e) nor OSHA’s determination 

to proceed with an investigation is 

subject to review by the ALJ, and a 

complaint may not be remanded for the 

completion of an investigation or for 

additional findings on the basis that a 

determination to dismiss was made in 

error. Rather, if there otherwise is 

jurisdiction, the ALJ will hear the case 

on the merits or dispose of the matter 

without a hearing if the facts and 

circumstances warrant. 

(d)(1) If the ALJ concludes that the 

respondent has violated the law, the 

order will provide all relief necessary to 

make the employee whole, including, 

reinstatement with the same seniority 

status that the complainant would have 

had but for the retaliation; back pay 

with interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. Interest on 

back pay will be calculated using the 

interest rate applicable to underpayment 

of taxes under 26 U.S.C. 6621 and will 

be compounded daily. The order will 

also require the respondent to submit 

appropriate documentation to the Social 

Security Administration allocating any 

back pay award to the appropriate 

calendar quarters. 

(2) If the ALJ determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. If, upon the request of the 

respondent, the ALJ determines that a 

complaint was frivolous or was brought 

in bad faith, the judge may award to the 

respondent reasonable attorney fees, not 

exceeding $1,000. 

(e) The decision will be served upon 

all parties to the proceeding, the 

Assistant Secretary, and the Associate 

Solicitor, Division of Fair Labor 

Standards, U.S. Department of Labor. 

Any ALJ’s decision requiring 

reinstatement or lifting an order of 

reinstatement by the Assistant Secretary 

will be effective immediately upon 

receipt of the decision by the 

respondent. All other portions of the 

ALJ’s order will be effective 14 days 

after the date of the decision unless a 

timely petition for review has been filed 

with the Administrative Review Board 

(ARB). The decision of the ALJ will 

become the final order of the Secretary 

unless a petition for review is timely 

filed with the ARB, and the ARB accepts 

the petition for review. 

§ 1980.110 Decision and orders of the 

Administrative Review Board. 

(a) Any party desiring to seek review, 

including judicial review, of a decision 

of the ALJ, or a respondent alleging that 

the complaint was frivolous or brought 

in bad faith who seeks an award of 

attorney fees, must file a written 

petition for review with the ARB, which 

has been delegated the authority to act 

for the Secretary and issue final 

decisions under this part. The parties 

should identify in their petitions for 

review the legal conclusions or orders to 

which they object, or the objections may 

be deemed waived. A petition must be 

filed within 14 days of the date of the 

decision of the ALJ. The date of the 

postmark, facsimile transmittal, or 

electronic communication transmittal 

will be considered to be the date of 

filing; if the petition is filed in person, 

by hand-delivery or other means, the 

petition is considered filed upon 

receipt. The petition must be served on 

all parties and on the Chief 

Administrative Law Judge at the time it 

is filed with the ARB. Copies of the 

petition for review must be served on 

the Assistant Secretary and on the 

Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor. 

(b) If a timely petition for review is 

filed pursuant to paragraph (a) of this 

section, the decision of the ALJ will 

become the final order of the Secretary 

unless the ARB, within 30 days of the 

filing of the petition, issues an order 

notifying the parties that the case has 

been accepted for review. If a case is 

accepted for review, the decision of the 

ALJ will be inoperative unless and until 

the ARB issues an order adopting the 

decision, except that any order of 

reinstatement will be effective while 

review is conducted by the ARB, unless 

the ARB grants a motion by the 

respondent to stay the order based on 

exceptional circumstances. The ARB 

will specify the terms under which any 

briefs are to be filed. The ARB will 

review the factual determinations of the 

ALJ under the substantial evidence 

standard. If no timely petition for 

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review is filed, or the ARB denies 

review, the decision of the ALJ will 

become the final order of the Secretary. 

If no timely petition for review is filed, 

the resulting final order is not subject to 

judicial review. 

(c) The final decision of the ARB shall 

be issued within 120 days of the 

conclusion of the hearing, which will be 

deemed to be 14 days after the date of 

the decision of the ALJ unless a motion 

for reconsideration has been filed with 

the ALJ in the interim. In such case, the 

conclusion of the hearing is the date the 

motion for reconsideration is ruled 

upon or 14 days after a new decision is 

issued. The ARB’s final decision will be 

served upon all parties and the Chief 

Administrative Law Judge by mail. The 

final decision will also be served on the 

Assistant Secretary and on the Associate 

Solicitor, Division of Fair Labor 

Standards, even if the Assistant 

Secretary is not a party. 

(d) If the ARB concludes that the 

respondent has violated the law, the 

ARB will issue a final order providing 

all relief necessary to make the 

complainant whole, including 

reinstatement with the same seniority 

status that the complainant would have 

had but for the retaliation; back pay 

with interest; and compensation for any 

special damages sustained as a result of 

the retaliation, including litigation 

costs, expert witness fees, and 

reasonable attorney fees. Interest on 

back pay will be calculated using the 

interest rate applicable to underpayment 

of taxes under 26 U.S.C. 6621 and will 

be compounded daily. The order will 

also require the respondent to submit 

appropriate documentation to the Social 

Security Administration allocating any 

back pay award to the appropriate 

calendar quarters. 

(e) If the ARB determines that the 

respondent has not violated the law, an 

order will be issued denying the 

complaint. If, upon the request of the 

respondent, the ARB determines that a 

complaint was frivolous or was brought 

in bad faith, the ARB may award to the 

respondent reasonable attorney fees, not 

exceeding $1,000. 

Subpart C—Miscellaneous Provisions 

§ 1980.111 Withdrawal of complaints, 

findings, objections, and petitions for 

review; settlement. 

(a) At any time prior to the filing of 

objections to the Assistant Secretary’s 

findings and/or preliminary order, a 

complainant may withdraw his or her 

complaint by notifying OSHA, orally or 

in writing, of his or her withdrawal. 

OSHA then will confirm in writing the 

complainant’s desire to withdraw and 

determine whether to approve the 

withdrawal. OSHA will notify the 

parties (and each party’s legal counsel if 

the party is represented by counsel) of 

the approval of any withdrawal. If the 

complaint is withdrawn because of 

settlement, the settlement must be 

submitted for approval in accordance 

with paragraph (d) of this section. A 

complainant may not withdraw his or 

her complaint after the filing of 

objections to the Assistant Secretary’s 

findings and/or preliminary order. 

(b) The Assistant Secretary may 

withdraw the findings and/or 

preliminary order at any time before the 

expiration of the 30-day objection 

period described in § 1980.106, 

provided that no objection has been 

filed yet, and substitute new findings 

and/or a new preliminary order. The 

date of the receipt of the substituted 

findings and/or order will begin a new 

30-day objection period. 

(c) At any time before the Assistant 

Secretary’s findings and/or order 

become final, a party may withdraw 

objections to the Assistant Secretary’s 

findings and/or order by filing a written 

withdrawal with the ALJ. If the case is 

on review with the ARB, a party may 

withdraw a petition for review of an 

ALJ’s decision at any time before that 

decision becomes final by filing a 

written withdrawal with the ARB. The 

ALJ or the ARB, as the case may be, will 

determine whether to approve the 

withdrawal of the objections or the 

petition for review. If the ALJ approves 

a request to withdraw objections to the 

Assistant Secretary’s findings and/or 

order, and there are no other pending 

objections, the Assistant Secretary’s 

findings and/or order will become the 

final order of the Secretary. If the ARB 

approves a request to withdraw a 

petition for review of an ALJ decision, 

and there are no other pending petitions 

for review of that decision, the ALJ’s 

decision will become the final order of 

the Secretary. If objections or a petition 

for review are withdrawn because of 

settlement, the settlement must be 

submitted for approval in accordance 

with paragraph (d) of this section. 

(d)(1) Investigative settlements. At any 

time after the filing of a complaint, and 

before the findings and/or order are 

objected to or become a final order by 

operation of law, the case may be settled 

if OSHA, the complainant and the 

respondent agree to a settlement. 

OSHA’s approval of a settlement 

reached by the respondent and the 

complainant demonstrates OSHA’s 

consent and achieves the consent of all 

three parties. 

(2) Adjudicatory settlements. At any 

time after the filing of objections to the 

Assistant Secretary’s findings and/or 

order, the case may be settled if the 

participating parties agree to a 

settlement and the settlement is 

approved by the ALJ if the case is before 

the ALJ, or by the ARB if the ARB has 

accepted the case for review. A copy of 

the settlement will be filed with the ALJ 

or the ARB, as appropriate. 

(e) Any settlement approved by 

OSHA, the ALJ, or the ARB, will 

constitute the final order of the 

Secretary and may be enforced in 

United States district court pursuant to 

§ 1980.113. 

§ 1980.112 Judicial review. 

(a) Within 60 days after the issuance 

of a final order under §§ 1980.109 and 

1980.110, any person adversely affected 

or aggrieved by the order may file a 

petition for review of the order in the 

United States Court of Appeals for the 

circuit in which the violation allegedly 

occurred or the circuit in which the 

complainant resided on the date of the 

violation. 

(b) A final order is not subject to 

judicial review in any criminal or other 

civil proceeding. 

(c) If a timely petition for review is 

filed, the record of a case, including the 

record of proceedings before the ALJ, 

will be transmitted by the ARB or the 

ALJ, as the case may be, to the 

appropriate court pursuant to the 

Federal Rules of Appellate Procedure 

and the local rules of such court. 

§ 1980.113 Judicial enforcement. 

Whenever any person has failed to 

comply with a preliminary order of 

reinstatement, or a final order, including 

one approving a settlement agreement, 

issued under the Act, the Secretary may 

file a civil action seeking enforcement of 

the order in the United States district 

court for the district in which the 

violation was found to have occurred. 

Whenever any person has failed to 

comply with a preliminary order of 

reinstatement, or a final order, including 

one approving a settlement agreement, 

issued under the Act, a person on whose 

behalf the order was issued may file a 

civil action seeking enforcement of the 

order in the appropriate United States 

district court. 

§ 1980.114 District court jurisdiction over 

retaliation complaints. 

(a) If the Secretary has not issued a 

final decision within 180 days of the 

filing of the complaint, and there is no 

showing that there has been delay due 

to the bad faith of the complainant, the 

complainant may bring an action at law 

or equity for de novo review in the 

appropriate district court of the United 

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Federal Register / Vol. 80, No. 43 / Thursday, March 5, 2015 / Rules and Regulations 11885 

States, which will have jurisdiction over 

such an action without regard to the 

amount in controversy. A party to an 

action brought under this paragraph 

shall be entitled to trial by jury. 

(b) A proceeding under paragraph (a) 

of this section shall be governed by the 

same legal burdens of proof specified in 

§ 1980.109. An employee prevailing in 

any action under paragraph (a) of this 

section shall be entitled to all relief 

necessary to make the employee whole, 

including: 

(1) Reinstatement with the same 

seniority status that the employee 

would have had, but for the retaliation; 

(2) The amount of back pay, with 

interest; 

(3) Compensation for any special 

damages sustained as a result of the 

retaliation; and 

(4) Litigation costs, expert witness 

fees, and reasonable attorney fees. 

(c) Within seven days after filing a 

complaint in federal court, a 

complainant must file with OSHA, the 

ALJ, or the ARB, depending on where 

the proceeding is pending, a copy of the 

file-stamped complaint. A copy of the 

complaint also must be served on the 

OSHA official who issued the findings 

and/or preliminary order, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor. 

§ 1980.115 Special circumstances; waiver 

of rules. 

In special circumstances not 

contemplated by the provisions of this 

part, or for good cause shown, the ALJ 

or the ARB on review may, upon 

application, after three days notice to all 

parties, waive any rule or issue any 

orders that justice or the administration 

of the Act requires. 

[FR Doc. 2015–05001 Filed 3–4–15; 08:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2013–0907] 

RIN 1625–AA00 

Safety Zones; Upper Mississippi River 

Between Mile 38.0 and 46.0, Thebes, IL; 

and Between Mile 78.0 and 81.0, Grand 

Tower, IL 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is 

establishing safety zones for all waters 

of the Upper Mississippi River (UMR) 

from mile 38.0 to 46.0 and from mile 

78.0 to 81.0. These safety zones are 

needed to protect persons, property, and 

infrastructure from potential damage 

and safety hazards associated with 

subsurface rock removal in the Upper 

Mississippi River. Any deviation from 

the conditions and requirements put 

into place are prohibited unless 

specifically authorized by the cognizant 

Captain of the Port (COTP) Ohio Valley 

or his designated representatives. 

DATES: This rule is effective on March 5, 

2015. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket [USCG– 

2013–0907]. To view documents 

mentioned in this preamble as being 

available in the docket, go to http://

www.regulations.gov, type the docket 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email LT Dan McQuate, U.S. Coast 

Guard; telephone 270–442–1621, email 

daniel.j.mcquate@uscg.mil. If you have 

questions on viewing or submitting 

material to the docket, call Cheryl F. 

Collins, Program Manager, Docket 

Operations, telephone (202) 366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

AIS Automated Information System 

BNM Broadcast Notice to Mariners 

COTP Captain of the Port 

DHS Department of Homeland Security 

FR Federal Register 

LNM Local Notice to Mariners 

MM Mile Marker 

MSU Marine Safety Unit 

M/V Motor Vessel 

NPRM Notice of Proposed Rulemaking 

RIAC River Industry Action Committee 

UMR Upper Mississippi River 

USACE United States Army Corps of 

Engineers 

A. Regulatory History and Information 

Based on forecasted historical low 

water on the UMR in the fall of 2012, 

the USACE contracted subsurface rock 

removal operations in Thebes, IL to 

mitigate the effects of the forecasted low 

water event. In order to provide 

additional safety measures and regulate 

navigation during low water and the 

planned rock removal operations, the 

Coast Guard published a temporary final 

rule in the Federal Register for an RNA 

from mile 0.0 to 185.0 UMR (77 FR 

75850). The RNA was in effect from 

December 1, 2012 until March 31, 2013, 

which is when river levels rebounded 

and the subsurface rock removal 

operation was delayed because of high 

water levels. During the effective period 

for this temporary RNA, restrictions 

were enforced for a total of 

approximately 45 days. 

In the fall of 2013, based on changing 

river conditions, low water was again 

forecasted and the USACE’s contracted 

subsurface rock removal operations in 

Thebes, IL were scheduled to resume. 

The Coast Guard then published a 

second temporary final rule in the 

Federal Register re-establishing the 

RNA (78 FR 70222). Based on the 

forecasted water levels and the plans 

and needs for the resumed rock removal 

operations, the RNA covered a smaller 

river section extending from mile 0.0 to 

109.9 on the UMR. The RNA was 

implemented to ensure the safety of the 

USACE contractors and marine traffic 

during the actual rock removal work, 

and to support the safe and timely 

clearing of vessel queues at the 

conclusion of the work each day. The 

RNA was in effect from November 4, 

2013 until April 12, 2014, but was only 

enforced from December 10, 2013 until 

February 19, 2014 due to water levels 

increasing and forcing the USACE 

contractors to cease rock removal 

operations. During the times the RNA 

was enforced, the Coast Guard worked 

with the USACE, RIAC, and the USACE 

contractor to implement river closures 

and various restrictions to maximize the 

size of tows that could safely pass while 

keeping the USACE contractor crews 

safe. The Coast Guard also assisted in 

clearing vessel queues after each closure 

or restriction. 

On April 17, 2014, MSU Paducah 

contacted USACE St. Louis to determine 

if subsurface rock removal operations 

will be conducted in the Upper 

Mississippi River in the vicinity of 

Thebes, IL in future years. USACE St. 

Louis reported that such operations are 

anticipated to continue as river 

conditions permit, and that there are 

multiple phases of subsurface rock 

removal operations remaining. On 

August 28, 2014 USACE St. Louis 

notified the Coast Guard that based on 

recently acquired data, rock removal 

operations will also be required in the 

Upper Mississippi River between miles 

78.0 and 81.0 at Grand Tower, IL in the 

future. 

USACE St. Louis also informed the 

Coast Guard that the environmental 

window for these operations each year 

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