[Federal Register Volume 87, Number 44 (Monday, March 7, 2022)]
[Rules and Regulations]
[Pages 12575-12588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04238]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1989

[Docket Number: OSHA-2020-0006]
RIN 1218-AD27


Procedures for the Handling of Retaliation Complaints Under the 
Taxpayer First Act (TFA)

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document provides the interim final text of regulations 
governing the anti-retaliation (employee protection or whistleblower) 
provision of the Taxpayer First Act (TFA or the Act). This rule 
establishes procedures and timeframes for the handling of retaliation 
complaints under TFA, including procedures and timeframes for employee 
complaints to the Occupational Safety and Health Administration (OSHA), 
investigations by OSHA, appeals of OSHA determinations to an 
administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, 
review of ALJ decisions by the Administrative Review Board (ARB) 
(acting on behalf of the Secretary of Labor), and judicial review of 
the Secretary's final decision. It also sets forth the Secretary's 
interpretations of the TFA anti-retaliation provision on certain 
matters.

DATES: 
    Effective date: This interim final rule is effective on March 7, 
2022.
    Comments due date: Comments and additional materials must be 
submitted (post-marked, sent or received) by May 6, 2022.

ADDRESSES: Submit comments by any of the following methods:
    Electronically: You may submit comments and attachments 
electronically at: https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions online for submitting 
comments.
    Docket: To read or download comments or other material in the 
docket, go to http://www.regulations.gov. Documents in the docket are 
listed in the http://www.regulations.gov index; however, some 
information (e.g., copyrighted material) is not publicly available to 
read or download through the website. All submissions, including 
copyrighted material, are available for inspection through the OSHA 
Docket Office. Contact the OSHA Docket Office at (202) 693-2350 (TTY 
(877) 889-5627) for assistance in locating docket submissions.
    Instructions: All submissions must include the agency name and the 
OSHA docket number for this Federal Register notice (OSHA-2020-0006). 
OSHA will place comments and requests to speak, including personal 
information, in the public docket, which may be available online. 
Therefore, OSHA cautions interested parties about submitting personal 
information such as Social Security numbers and birthdates. For further 
information on submitting comments, see the ``Public Participation'' 
heading in the section of this notice titled SUPPLEMENTARY INFORMATION.
    Extension of comment period: Submit requests for an extension of 
the comment period on or before March 22, 2022 to the Directorate of 
Whistleblower Protection Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, 200 Constitution Avenue NW, 
Room N-4618, Washington, DC 20210, or by fax to (202) 693-2199 or by 
email to <a href="/cdn-cgi/l/email-protection#c8879b8089e68c9f989888aca7a4e6afa7be"><span class="__cf_email__" data-cfemail="743b273c355a3023242434101b185a131b02">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Ms. Meghan Smith, Program Analyst, 
Directorate of Whistleblower Protection Programs, Occupational Safety 
and Health Administration, U.S. Department of Labor, Room N-4618, 200 
Constitution Avenue NW, Washington, DC 20210; telephone (202) 693-2199 
(this is not a toll-free number) or email: <a href="/cdn-cgi/l/email-protection#d09f839891fe9487808090b4bfbcfeb7bfa6"><span class="__cf_email__" data-cfemail="d59a869d94fb9182858595b1bab9fbb2baa3">[email protected]</span></a>. This 
Federal Register publication is available in alternative formats.

SUPPLEMENTARY INFORMATION:

I. Background

    The Taxpayer First Act (TFA or Act), Public Law 116-25, 133 Stat. 
981, was enacted on July 1, 2019. Section 1405(b) of the Act, codified 
at 26 U.S.C. 7623(d) and referred to throughout these interim final 
rules as the TFA ``anti-retaliation,'' ``employee protection,'' or 
``whistleblower'' provision, prohibits retaliation by an employer, or 
any officer, employee, contractor, subcontractor, or agent of such 
employer against an employee in the

[[Page 12576]]

terms and conditions of employment in reprisal for the employee having 
engaged in protected activity. Protected activity under TFA includes 
any lawful act done by an employee to provide information, cause 
information to be provided, or otherwise assist in an investigation 
regarding underpayment of tax or conduct which the employee reasonably 
believes constitutes a violation of the internal revenue laws or any 
provision of Federal law relating to tax fraud. To be protected, the 
information or assistance must be provided to one of the persons or 
entities listed in the statute, which include the Internal Revenue 
Service (IRS), the Secretary of the Treasury, the Treasury Inspector 
General for Tax Administration, the Comptroller General of the United 
States, the Department of Justice, the United States Congress, a person 
with supervisory authority over the employee, or any other person 
working for the employer who has the authority to investigate, 
discover, or terminate misconduct. The Act also protects employees from 
retaliation in reprisal for any lawful act done to testify, participate 
in, or otherwise assist in any administrative or judicial action taken 
by the IRS relating to an alleged underpayment of tax or any violation 
of the internal revenue laws or any provision of Federal law relating 
to tax fraud. These interim final rules establish procedures for the 
handling of retaliation complaints under the Act.

II. Summary of Statutory Procedures

    TFA incorporates the rules, procedures, and burdens of proof set 
forth in the Wendell H. Ford Aviation Investment and Reform Act for the 
21st Century (AIR21), 49 U.S.C. 42121(b), with some exceptions. Under 
TFA, a person who believes that they have been discharged or otherwise 
retaliated against in violation of the Act (complainant) may file a 
complaint with the Secretary of Labor (Secretary) within 180 days of 
the alleged retaliation. Upon receipt of the complaint, the Secretary 
must provide written notice to the person or persons named in the 
complaint alleged to have violated the Act (respondent) and to the 
complainant's employer (which in most cases will be the 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 conduct an investigation, within 60 days of receipt 
of the complaint, after affording the respondent an opportunity to 
submit a written response and to meet with the investigator to present 
statements from witnesses.
    The Act provides that the Secretary may conduct an investigation 
only if the complainant has made a prima facie showing that the 
protected activity was a contributing factor in the adverse action 
alleged in the complaint and the respondent has not demonstrated, 
through clear and convincing evidence, that it would have taken the 
same adverse action in the absence of that activity. (See Sec.  
1989.104 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 complainant and respondent of those findings, 
and issue a preliminary order providing all relief necessary to make 
the complainant whole, including, where appropriate: Reinstatement with 
the same seniority status that the complainant would have had but for 
the retaliation; the sum of 200 percent of the amount of back pay and 
100 percent of all lost benefits, 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 receipt of the Secretary's notification in which to file objections 
to the findings and/or preliminary order and request a hearing before 
an Administrative Law Judge (ALJ). The filing of objections will not 
stay any reinstatement order. However, under OSHA's regulations, the 
filing of objections will stay any other remedy in the preliminary 
order. If a hearing before an ALJ is not requested within 30 days, the 
preliminary order becomes final and is not subject to judicial review.
    If a hearing is held, the Act requires the hearing be conducted 
``expeditiously.'' The Secretary then has 120 days after the conclusion 
of any hearing 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 complainant whole, 
including, where appropriate, reinstatement with the same seniority 
status that the complainant would have had, but for the retaliation; 
the sum of 200 percent of the amount of back pay and 100 percent of all 
lost benefits, 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 Secretary also 
may award a prevailing employer reasonable attorney fees, not exceeding 
$1,000, if the Secretary finds that the complaint is frivolous or has 
been brought in bad faith. Within 60 days of the issuance of the final 
order, any person adversely affected or aggrieved by the Secretary's 
final order may file an appeal with the United States Court of Appeals 
for the circuit in which the violation allegedly occurred or the 
circuit where the complainant resided on the date of the violation.
    The Act permits the employee to bring an action for de novo review 
of a TFA retaliation claim in the appropriate 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. The provision 
provides that the court will have jurisdiction over the action without 
regard to the amount in controversy and that either party is entitled 
to request a trial by jury. The Act also states that the rights and 
remedies provided in the TFA anti-retaliation provision may not be 
waived by any agreement, policy form, or condition of employment, 
including by a predispute arbitration agreement. No predispute 
arbitration agreement is valid or enforceable, if the agreement 
requires arbitration of a dispute arising under the TFA anti-
retaliation provision. Finally, under the Act, nothing in the TFA anti-
retaliation provision shall be deemed to diminish the rights, 
privileges, or remedies of any employee under any Federal or State law, 
or under any collective bargaining agreement.

III. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been written and 
organized to be consistent with other whistleblower regulations 
promulgated by OSHA to the extent possible within the bounds of the 
statutory language of the Act. Responsibility for receiving and 
investigating complaints under the Act has been delegated to the 
Assistant Secretary for Occupational Safety and Health (Assistant 
Secretary) by Secretary of Labor's Order No. 08-2020 (May 15, 2020), 85 
FR 58393 (September

[[Page 12577]]

18, 2020). Hearings on determinations by the Assistant Secretary are 
conducted by the Office of Administrative Law Judges, and appeals from 
decisions by ALJs are decided by the ARB. See Secretary of Labor's 
Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 2020) 
(Delegation of Authority and Assignment of Responsibility to the 
Administrative Review Board).

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

Section 1989.100 Purpose and Scope
    This section describes the purpose of the regulations implementing 
the anti-retaliation provisions of TFA and provides an overview of the 
procedures covered by these regulations.
Section 1989.101 Definitions
    This section includes the general definitions of certain terms used 
in Sec.  1405(b) of TFA, 26 U.S.C. 7623(d), which are applicable to the 
Act's anti-retaliation provision. Consistent with the approach that 
OSHA has taken in implementing other whistleblower protection 
provisions and with applicable ARB case law, the interim final rule 
defines ``employee'' as ``an individual presently or formerly working 
for, an individual applying to work for, or an individual whose 
employment could be affected by, another person.'' See, e.g., 29 CFR 
1979.101 (AIR21 definition of employee); 29 CFR 1980.101(g) (Sarbanes-
Oxley Act of 2002 (SOX) definition of employee). In OSHA's view, 
consistent with TFA's language protecting employees from retaliation 
for providing information regarding ``any conduct which the employee 
reasonably believes constitutes a violation of the internal revenue 
laws,'' the definition of ``employee'' in the interim final rule 
encompasses individuals who allege that they are employees, can show 
some evidence that the respondent exercises control over the terms and 
conditions of their employment or other factors tending to demonstrate 
that an employer-employee relationship exists, and allege that they 
have suffered retaliation for having reported that their employers have 
violated tax laws by failing or refusing to make required withholdings, 
deductions, and/or contributions on their behalf. See Green v. OPCON, 
Inc., ARB Case No. 2018-0007, 2020 WL 2319031, at *3 (Apr. 9, 2020) 
(explaining the ARB's case law applying a ``right-to-control'' test and 
the common law test in Nationwide Mutual Insurance Co. v. Darden, 503 
U.S. 318, 322-23 (1992)).
    The interim final rule defines ``person'' as ``an individual, 
partnership, company, corporation, association (incorporated or 
unincorporated), trust, or estate,'' based on the definition found in 
the Internal Revenue Code. See 26 U.S.C. 7701(a)(1).
Section 1989.102 Obligations and Prohibited Acts
    This section describes the activities that are protected under the 
Act and the conduct that is prohibited in response to any protected 
activities. The Act prohibits an employer, or any officer, employee, 
contractor, subcontractor, or agent of such employer from discharging, 
demoting, suspending, threatening, harassing or in any other manner 
retaliating against an employee in the terms and conditions of 
employment in reprisal for the employee having engaged in protected 
activity. Protected activity under TFA includes any lawful act by an 
employee to provide information, cause information to be provided, or 
otherwise assist in an investigation regarding underpayment of tax or 
conduct which the employee reasonably believes constitutes a violation 
of the internal revenue laws or any provision of Federal law relating 
to tax fraud. To be protected, the information or assistance must be 
provided to one of the persons or entities listed in the statute, which 
include the IRS, the Secretary of the Treasury, the Treasury Inspector 
General for Tax Administration, the Comptroller General of the United 
States, the Department of Justice, the United States Congress, a person 
with supervisory authority over the employee, or any other person 
working for the employer who has the authority to investigate, 
discover, or terminate misconduct. The Act also protects employees from 
discharge or other actions in reprisal for any lawful act done to 
testify, participate in, or otherwise assist in any administrative or 
judicial action taken by the IRS relating to an alleged underpayment of 
tax or any violation of the internal revenue laws or any provision of 
Federal law relating to tax fraud. More information regarding Federal 
tax laws and the IRS's regulations can be found at www.IRS.gov.
    Under the Act, an employee who provides information, causes 
information to be provided, or assists in an investigation is protected 
as long as the employee reasonably believes that the conduct at issue 
violates internal revenue laws or any provision of Federal law relating 
to tax fraud. To have a reasonable belief that there is a violation of 
relevant law, the employee must subjectively believe that the conduct 
is a violation and that belief must be objectively reasonable. See, 
e.g., Rhinehimer v. U.S. Bancorp. Invs., Inc., 787 F.3d 797, 811 (6th 
Cir. 2015) (discussing the reasonable belief standard under analogous 
language in the SOX whistleblower provision, 18 U.S.C. 1514A) 
(citations omitted); Harp v. Charter Commc'ns, Inc., 558 F.3d 722, 723 
(7th Cir. 2009) (agreeing with First, Fourth, Fifth, and Ninth Circuits 
that determining reasonable belief under the SOX whistleblower 
provision requires analysis of the complainant's subjective belief and 
the objective reasonableness of that belief); Sylvester v. Parexel 
Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *11-12 (ARB May 25, 
2011) (same). The requirement that the complainant have a subjective, 
good faith belief is satisfied so long as the complainant actually 
believed that the conduct at issue violated the relevant law or 
regulation. See Sylvester, 2011 WL 2165854, at *11-12 (citing Harp, 558 
F.3d at 723; Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir. 
2009)). 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.'' Harp, 558 F.3d at 723 (quoting 
Allen v. Admin. Review Bd., 514 F.3d 468, 477 (5th Cir. 2008)). 
However, the complainant need not show the conduct constituted an 
actual violation of law. Pursuant to this standard, an employee's 
whistleblower activity is protected when it is based on a reasonable, 
but mistaken, belief that a violation of the relevant law has occurred. 
See Van Asdale v. Int'l Game Techs., 577 F.3d 989, 1001 (9th Cir. 
2009); Allen, 514 F.3d at 477.
Section 1989.103 Filing of Retaliation Complaint
    This section explains the requirements for filing a retaliation 
complaint under TFA. To be timely, a complaint must be filed within 180 
days of when the alleged violation occurs. Under Delaware State College 
v. Ricks, 449 U.S. 250, 258 (1980), an alleged violation occurs when 
the retaliatory decision has been both made and communicated to the 
complainant. In other words, the limitations period commences once the 
employee is aware or reasonably should be aware of the employer's 
decision to take an adverse action. EEOC v. United Parcel Serv., Inc., 
249 F.3d 557, 561-62 (6th Cir. 2001). The time for filing a complaint 
under TFA may be tolled for reasons warranted by applicable case law. 
For

[[Page 12578]]

example, OSHA may consider the time for filing a complaint to be tolled 
if a complainant mistakenly files a complaint with an agency other than 
OSHA within 180 days after an alleged adverse action. Xanthopoulos v. 
U.S. Dep't of Labor, 991 F.3d 823, 832 (7th Cir. 2021) (affirming ARB's 
refusal to toll the statute of limitations under SOX and explaining the 
limited circumstances in which tolling is appropriate for a timely 
filing in the wrong forum).
    Complaints filed under TFA need not be in any particular form. They 
may be either oral or in writing. If the complainant is unable to file 
the complaint in English, OSHA will accept the complaint in any 
language. With the consent of the employee, complaints may be filed by 
any person on the employee's behalf.
Section 1989.104 Investigation
    This section describes the procedures that apply to the 
investigation of TFA complaints. Paragraph (a) of this section outlines 
the procedures for notifying the respondent, the employer (if different 
from the respondent), and the IRS of the complaint and notifying the 
respondent of the rights under these regulations. Paragraph (b) 
describes the procedures for the respondent to submit the response to 
the complaint. Paragraph (c) specifies that OSHA will request that the 
parties provide each other with copies of their submissions to OSHA 
during the investigation and that, if a party does not provide such 
copies, OSHA generally will do so at a time permitting the other party 
an opportunity to respond to those submissions. Before providing such 
materials, OSHA will redact them consistent 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. TFA incorporates the burdens of proof in AIR21. Thus, in order 
for OSHA to conduct an investigation, TFA 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 for 
OSHA to commence an investigation if the complaint on its face, 
supplemented as appropriate through interviews of the complainant, 
alleges the existence of facts and either direct or circumstantial 
evidence to meet the required showing. The complainant's burden at this 
stage may be satisfied, for example, if the complainant shows that the 
adverse action took place shortly after the protected activity.
    If the complainant does not make the required prima facie showing, 
the investigation must be discontinued and the complaint dismissed. See 
Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) 
(noting that the burden-shifting framework of the Energy Reorganization 
Act of 1974, as amended, (ERA) which is the same as that under TFA, 
serves a ``gatekeeping function'' intended to ``stem [ ] frivolous 
complaints''). Even in cases where the complainant successfully makes a 
prima facie showing, TFA requires that the investigation must be 
discontinued if the employer demonstrates, by clear and convincing 
evidence, that it would have taken the same adverse action in the 
absence of the protected activity. Thus, OSHA must dismiss the 
complaint and not investigate further if either: (1) The complainant 
fails to make the prima facie showing that protected activity was a 
contributing factor in the alleged 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.'' Wiest v. Tyco Elec. 
Corp., 812 F.3d 319, 330 (3d Cir. 2016) (discussing ``contributing 
factor standard'' under SOX); Feldman v. Law Enforcement Assocs. Corp., 
752 F.3d 339, 348 (4th Cir. 2014) (same); Lockheed Martin Corp. v. 
Admin. Review Bd., 717 F.3d 1121, 1136 (10th Cir. 2013) (same). A 
conclusion that protected activity was a contributing factor in an 
adverse action can be based on direct evidence or circumstantial 
evidence ``such as the temporal proximity between the protected 
activity and the adverse action, indications of pretext such as 
inconsistent application of policies and shifting explanations, 
antagonism or hostility toward protected activity, the relation between 
the discipline and the protected activity, and the presence [or 
absence] of intervening events that independently justify'' the adverse 
action. Hess v. Union Pac. R.R. Co., 898 F.3d 852, 858 (8th Cir. 2018) 
(quoted source omitted) (discussing the contributing factor standard 
under the Federal Railroad Safety Act).
    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, ARB 
No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011).
    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 and 
reinstatement is required. Its purpose is to ensure compliance with the 
Due Process Clause of the Fifth Amendment, as interpreted by the 
Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) 
(requiring OSHA to give a Surface Transportation Assistance Act 
respondent the opportunity to review the substance of the evidence and 
respond prior to ordering preliminary reinstatement).
Section 1989.105 Issuance of Findings and Preliminary Orders
    This section provides that, on the basis of information obtained in 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of a complaint, written findings regarding whether or not 
there is reasonable cause to believe that the complaint has merit. If 
the findings are that there is reasonable cause to believe that the 
complaint has merit, the Assistant Secretary will order 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; the sum of 200 percent of the amount of back pay and 100 
percent of all lost benefits, 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 findings and, where appropriate, preliminary order, will also 
advise the parties of their right to file objections to the findings of 
the Assistant Secretary and to request a hearing. The findings

[[Page 12579]]

and, where appropriate, the preliminary order, will also advise the 
respondent of the right to request an award of attorney fees not 
exceeding a total of $1,000 from the ALJ, regardless of whether the 
respondent has filed objections, if the respondent alleges that the 
complaint was frivolous or brought in bad faith. If no objections are 
filed within 30 days of receipt of the findings, the findings and any 
preliminary order of the Assistant Secretary become the final decision 
and order of the Secretary. If objections are timely filed, any order 
of preliminary reinstatement will take effect, but the remaining 
provisions of the order will not take effect until administrative 
proceedings are completed.
    The remedies provided under TFA aim to make the complainant whole 
by restoring the complainant to the position that the complainant would 
have occupied absent the retaliation and to counteract the chilling 
effect of retaliation on protected whistleblowing in the complainant's 
workplace. The back pay, benefits, and other remedies appropriate in 
each case will depend on the individual facts of the case and the 
evidence submitted, and the complainant's interim earnings must be 
taken into account in determining the appropriate back pay award. When 
there is evidence to determine these figures, a back pay award under 
TFA might include, for example, amounts that the complainant would have 
earned in commissions, bonuses, overtime, or raises had the complainant 
not been discharged in retaliation for engaging in protected activity 
under TFA. A benefits award under TFA might include amounts that the 
employer would have contributed to a 401(k) plan, insurance plan, 
profit-sharing plan, or retirement plan on the complainant's behalf had 
the complainant not been discharged in retaliation for engaging in 
protected activity under TFA. Other damages, including non-pecuniary 
damages, such as damages for emotional distress due to the retaliation, 
are also available under TFA. See, e.g., Jones v. Southpeak Interactive 
Corp. of Del., 777 F.3d 658, 670-71 (4th Cir. 2015) (holding that 
emotional distress damages are available under identical remedial 
provision in SOX); Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 
254, 264-66 (5th Cir. 2014) (same). Consistent with the rules under 
other whistleblower statutes enforced by the Department of Labor, in 
ordering interest on back pay under TFA, OSHA will compute interest due 
by compounding daily the Internal Revenue Service interest rate for the 
underpayment of taxes, which under 26 U.S.C. 6621(a)(2) is the Federal 
short-term rate plus three percentage points, against back pay. See, 
e.g., 29 CFR 1980.105(a) (SOX); 29 CFR 1982.105(a) (Federal Railroad 
Safety Act (FRSA)); 29 CFR 1988.105(a) (Moving Ahead for Progress in 
the 21st Century Act (MAP-21)).
    Consistent with the rules governing other Department of Labor-
enforced whistleblower protection statutes, where appropriate, in 
ordering back pay, OSHA will require the respondent to submit the 
appropriate documentation to the Social Security Administration (SSA) 
allocating the back pay to the appropriate periods. See, e.g., 29 CFR 
1980.105(a) (SOX); 29 CFR 1982.105(a) (FRSA); 29 CFR 1988.105(a) (MAP-
21)).
    The statute permits OSHA to preliminarily reinstate employees to 
their positions if OSHA finds reasonable cause to believe that they 
were discharged in violation of TFA. See 49 U.S.C. 42121(b)(2)(A). When 
a violation is found, the norm is for OSHA to order immediate 
preliminary reinstatement. In appropriate circumstances, in lieu of 
preliminary reinstatement, OSHA may order that the complainant receive 
the same pay and benefits that the complainant received prior to 
termination but not actually return to work. Such ``economic 
reinstatement'' is akin to an order of front pay and is sometimes 
employed in cases arising under Sec.  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, MSHA v. North Fork Coal 
Corp., 33 FMSHRC 589, 2011 WL 1455831, at *4 (FMSHRC Mar. 25, 2011) 
(explaining economic reinstatement in lieu of temporary reinstatement 
in the context of Sec.  105(c)). Front pay has been recognized as an 
appropriate remedy in cases under the whistleblower statutes enforced 
by OSHA in circumstances where reinstatement would not be appropriate. 
See, e.g., Deltek, Inc. v. Dep't of Labor, Admin. Rev Bd., 649 Fed. 
App'x. 320, 333 (4th Cir. 2016) (affirming award of front pay in SOX 
case due to ``pronounced animosity between the parties;'' explaining 
that ``front pay `is designed to place the complainant in the identical 
financial position' that she would have occupied had she remained 
employed or been reinstated.''); Continental Airlines, Inc. v. Admin. 
Review Bd., 638 Fed. App'x. 283, 289-90 at *4 (5th Cir. 2016) 
(affirming front pay award under AIR21, and explaining that ``front-pay 
is available when reinstatement is not possible''), aff'g Luder v. 
Cont'l Airlines, Inc., ARB No. 10-026, 2012 WL 376755, at *11 (ARB Jan. 
31, 2012); see also Brown v. Lockheed Martin Corp., ALJ No. 2008-SOX-
00049, 2010 WL 2054426, at *55-56 (ALJ Jan. 15, 2010) (noting that 
while reinstatement is the ``presumptive remedy'' under SOX 
whistleblower provision, front pay may be awarded as a substitute when 
reinstatement is inappropriate), aff'd Lockheed Martin Corp. v. Admin. 
Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (noting availability 
of all relief necessary to make the employee whole in SOX case but 
remanding for DOL to quantify remedies); Indiana Michigan Power Co. v. 
U.S. Dep't of Labor, 278 Fed. Appx. 597, 606 (6th Cir. 2008) (affirming 
front pay award under ERA). 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.

Subpart B--Litigation

Section 1989.106 Objections to the Findings and the Preliminary Order 
and Requests for a Hearing
    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, in accordance with 29 CFR part 18, as applicable, 
within 30 days of the receipt of the findings. The date of the 
postmark, facsimile transmittal, or electronic transmittal is 
considered the date of the filing; if the objection is filed in person, 
by hand-delivery or other means, the objection is filed upon receipt. 
The filing of objections also is considered a request for a hearing 
before an ALJ. Although the parties are directed to serve a copy of 
their objections on the other parties of record, as well as on the OSHA 
official who issued the findings and order, the Assistant Secretary, 
and the U.S. Department of Labor's Associate Solicitor for Fair Labor 
Standards, the failure to serve copies of the objections on the other 
parties of record does not affect the ALJ's jurisdiction to hear and 
decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear 
Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 
2005). OSHA and the Associate Solicitor for Fair Labor Standards may 
specify the means, including electronic means, to serve them with 
copies of objections to OSHA's findings.

[[Page 12580]]

    The timely filing of objections stays all provisions of the 
preliminary order, except for the portion requiring reinstatement. A 
respondent may file a motion to stay the Assistant Secretary's 
preliminary order of reinstatement with the Office of Administrative 
Law Judges. However, such a motion will be granted only based on 
exceptional circumstances. The Secretary believes that a stay of the 
Assistant Secretary's preliminary order of reinstatement under TFA 
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 that the public interest favors a stay. If no 
timely objection to the Assistant Secretary's findings and/or 
preliminary order is filed, then the Assistant Secretary's findings 
and/or preliminary order become the final decision of the Secretary not 
subject to judicial review.
Section 1989.107 Hearings
    This section adopts the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
as set forth in 29 CFR part 18 subpart A. This section provides that 
the hearing is to commence expeditiously, except upon a showing of good 
cause or unless otherwise agreed to by the parties. Hearings will be 
conducted de novo, on the record. As noted in this section, formal 
rules of evidence will not apply, but rules or principles designed to 
assure production of the most probative evidence will be applied. The 
ALJ may exclude evidence that is immaterial, irrelevant, or unduly 
repetitious.
Section 1989.108 Role of Federal Agencies
    The Assistant Secretary may participate as a party or amicus curiae 
at any time in the administrative proceedings under TFA. For example, 
the Assistant Secretary may exercise 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 the ARB. 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 IRS, if interested in a proceeding, also may participate 
as amicus curiae at any time in the proceedings.
Section 1989.109 Decisions and Orders of the Administrative Law Judge
    This section sets forth the requirements for the content of the 
decisions and orders of the ALJ, and includes the standard for finding 
a violation under TFA. Specifically, because TFA incorporates the 
burdens of proof in AIR21, 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 49 U.S.C. 
42121(b)(2)(B)(iii); see, e.g., Allen, 514 F.3d at 475 n.1 (``The term 
`demonstrates' [under identical burden-shifting scheme in the SOX 
whistleblower provision] means to prove by a preponderance of the 
evidence.''). If the employee demonstrates that the alleged protected 
activity was a contributing factor in the adverse action, then the 
employer must demonstrate 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).
    Paragraph (c) of this section further provides that OSHA's 
determination to dismiss the complaint without an investigation or 
without a complete investigation under Sec.  1989.104 is not subject to 
review. Thus, Sec.  1989.109(c) clarifies that OSHA's determinations on 
whether to proceed with an investigation under TFA and whether to make 
particular investigative findings are discretionary decisions not 
subject to review by the ALJ. The ALJ hears cases de novo and, 
therefore, as a general matter, may not remand cases to OSHA to conduct 
an investigation or make further factual findings. Paragraph (d) notes 
the remedies that the ALJ may order under TFA and, as discussed under 
Sec.  1989.105 above, provides that interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621(a)(2) and will be compounded daily, and that the 
respondent will be required to submit appropriate documentation to the 
SSA allocating any back pay award to the appropriate periods. Paragraph 
(e) requires that the ALJ's decision be served on all parties to the 
proceeding, OSHA, and the U.S. Department of Labor's Associate 
Solicitor for Fair Labor Standards. OSHA and the Associate Solicitor 
for Fair Labor Standards may specify the means, including electronic 
means, for service of the ALJ's decision on them. 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 30 days after the date of 
the decision unless a timely petition for review has been filed with 
the ARB. If a timely petition for review is not filed with the ARB, the 
decision of the ALJ becomes the final decision of the Secretary and is 
not subject to judicial review.
Section 1989.110 Decisions and Orders of the Administrative Review 
Board
    Upon the issuance of the ALJ's decision, the parties have 30 days 
within which to petition the ARB for review of that decision. The date 
of the postmark, facsimile transmittal, or electronic 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 only 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 TFA (which otherwise would be effective 
immediately), while the ARB reviews the order. The Secretary believes 
that a stay of an ALJ's preliminary order of reinstatement under TFA 
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

[[Page 12581]]

parties, and that the public interest favors a stay.
    If the ARB concludes that the respondent has violated the law, it 
will issue an order providing all relief necessary to make the 
complainant whole. The order will require, where appropriate: 
Reinstatement with the same seniority status that the complainant would 
have had, but for the retaliation; the sum of 200 percent of the amount 
of back pay and 100 percent of all lost benefits, 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 pursuant to 26 
U.S.C. 6621(a)(2) and will be compounded daily, and the respondent will 
be required to submit appropriate documentation to the SSA allocating 
any back pay award to the appropriate periods. If the ARB determines 
that the respondent has not violated the law, an order will be issued 
denying the complaint. If, upon the request of the respondent, the ARB 
determines that a complaint was frivolous or was brought in bad faith, 
the ARB may award to the respondent a reasonable attorney fee, not 
exceeding a total of $1,000. The decision of the ARB is subject to 
discretionary review by the Secretary of Labor. See Secretary of 
Labor's Order, 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 2020).
    As provided in that Secretary's Order, a party may petition the ARB 
to refer a decision to the Secretary for further review, after which 
the Secretary may accept review, decline review, or take no action. If 
no such petition is filed, the ARB's decision shall become the final 
action of the Department 28 calendar days after the date on which the 
decision was issued. If such a petition is filed and the ARB declines 
to refer the case to the Secretary, the ARB's decision shall become 
final 28 calendar days after the date on which the petition for review 
was filed. If the ARB refers a decision to the Secretary for further 
review, and the Secretary takes no action in response to the ARB's 
referral, or declines to accept the case for review, the ARB's decision 
shall become final either 28 calendar days from the date of the 
referral, or on the date on which the Secretary declines review, 
whichever comes first.
    In the alternative, under the Secretary's Order, at any point 
during the first 28 calendar days after the date on which an ARB 
decision was issued, the Secretary may direct the ARB to refer the 
decision to the Secretary for review. If the Secretary directs the ARB 
to refer a case to the Secretary, or notifies the parties that the case 
has been accepted for review, the ARB's decision shall not become the 
final action of the Department and shall have no legal force or effect, 
unless and until the Secretary adopts the ARB's decision.
    Under the Secretary's Order, any final decision made by the 
Secretary shall be made solely based on the administrative record, the 
petition and briefs filed with the ARB, and any amicus briefs permitted 
by the Secretary. The decision shall be in writing and shall be 
transmitted to the ARB, who will publish the decision and transmit it 
to the parties to the case. The Secretary's decision shall constitute 
final action by the Department and shall serve as binding precedent in 
all Department proceedings involving the same issue or issues.

Subpart C--Miscellaneous Provisions

Section 1989.111 Withdrawal of Complaints, Findings, Objections, and 
Petitions for Review; Settlement
    This section provides the procedures and time periods for 
withdrawal of complaints, withdrawal of findings and/or preliminary 
orders by the Assistant Secretary, and withdrawal of objections to 
findings and/or orders. It permits complainants to withdraw their 
complaints orally, and provides that, in such circumstances, OSHA will 
confirm a complainant's desire to withdraw in writing. It also provides 
for approval of settlements at the investigative and adjudicatory 
stages of the case.
Section 1989.112 Judicial Review
    This section describes the statutory provisions for judicial review 
of decisions of the Secretary and requires, in cases where judicial 
review is sought, the ARB or the ALJ to submit the record of 
proceedings to the appropriate court pursuant to the rules of such 
court.
Section 1989.113 Judicial Enforcement
    This section describes the ability of the Secretary, the 
complainant, and the respondent under TFA to obtain judicial 
enforcement of orders and terms of settlement agreements. Through the 
incorporation of the rules and procedures in AIR21, TFA authorizes 
district courts to enforce orders issued by the Secretary under the 
provisions of 49 U.S.C. 42121(b). Specifically, 49 U.S.C. 42121(b)(5) 
provides that ``[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 injunctive 
relief and compensatory damages.'' 49 U.S.C. 42121(b)(5). Similarly, 49 
U.S.C. 42121(b)(6), provides that a person on whose behalf an order was 
issued ``may commence a civil action against the person to whom such 
order was issued to required compliance with such order'' in the 
appropriate United States district court, which will have jurisdiction 
without regard to the amount in controversy or the citizenship of the 
parties, to enforce such order. The Secretary views these provisions as 
permitting district courts to enforce both final orders of the 
Secretary and preliminary orders of reinstatement for the same reasons 
that the Secretary has expressed with regard to SOX, which incorporates 
the rules and procedures of AIR21 using identical language to that in 
TFA. See Procedures for the Handling of Retaliation Complaints Under 
Sec.  806 of the Sarbanes-Oxley Act of 2002, as Amended, Final Rule, 80 
FR 11865-02, 11,877 (Mar. 5, 2015) (discussing district court 
enforcement of preliminary reinstatement orders under SOX); see also 
Brief for the Intervenor/Plaintiff-Appellee Secretary of Labor, Solis 
v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. 
Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); 
but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 
2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. 
Va. 2006), decision vacated, appeal dismissed, No. 06-2295 (4th Cir. 
Feb. 20, 2008)).
Section 1989.114 District Court Jurisdiction of Retaliation Complaints
    This section sets forth TFA'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 after the date 
of the filing of the complaint. See 26 U.S.C. 7623(d)(2)(A)(ii). This 
section also incorporates the statutory provisions that allow for a 
jury trial at the request of either party in a district court action 
and that specify the burdens of proof in a district court action. 26 
U.S.C. 7623(d)(2)(B)(iii), (v).
    This section also requires that, within seven days after filing a 
complaint in district court, a complainant must provide a file-stamped 
copy of the complaint to OSHA, the ALJ, or the

[[Page 12582]]

ARB, depending on where the proceeding is pending. If the ARB has 
issued a decision that has not yet become final under Secretary of 
Labor's Order 01-2020, the case is regarded as pending before the ARB 
for purposes of this section and a copy of any district court complaint 
should be sent to the ARB. A copy of the district court complaint also 
must be provided to the OSHA official who issued the findings and/or 
preliminary order, the Assistant Secretary, and the U.S. Department of 
Labor's Associate Solicitor for Fair Labor Standards. This provision is 
necessary to notify 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.
    Finally, it should be noted that although a complainant may file an 
action in district court if the Secretary has not issued a final 
decision within 180 days of the filing of the complaint with OSHA, it 
is the Department of Labor'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. Thus, for example, after the ARB has 
issued a decision that has become final denying a whistleblower 
complaint, the complainant no longer may file an action for de novo 
review in federal district court. See Soo Line R.R., Inc. v. Admin. 
Review Bd., 990 F.3d 596, 598 n.1 (8th Cir. 2021). The purpose of the 
``kick-out'' provision is to aid the complainant in receiving a prompt 
decision. That goal is not implicated in a situation where the 
complainant already has received a final decision from the Secretary. 
In addition, permitting the complainant to file a new case in district 
court in such circumstances could conflict with the parties' rights to 
seek judicial review of the Secretary's final decision in the court of 
appeals. See 49 U.S.C. 42121(b)(4)(B) (providing that an order with 
respect to which review could have been obtained in the court of 
appeals shall not be subject to judicial review in any criminal or 
other civil proceeding).
Section 1989.115 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 TFA requires.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation 
complaint, section 1989.103) which was previously reviewed as a 
statutory requirement of TFA and approved for use by the Office of 
Management and Budget (OMB), as part of the Information Collection 
Request (ICR) assigned OMB control number 1218-0236 under the 
provisions of the Paperwork Reduction Act of 1995 (PRA). See Public Law 
104-13, 109 Stat. 163 (1995). A non-material change has been submitted 
to OMB to include the regulatory citation.

V. Administrative Procedure Act

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

VI. Executive Orders 12866, 13563, and 13771; Unfunded Mandates Reform 
Act of 1995; Executive Order 13132

    The Office of Information and Regulatory Affairs 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 
Sec.  6(a)(3)(C) of Executive Order 12866 has been prepared.
    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866.
    Also, because this rule is not significant under Executive Order 
12866, and because no notice of proposed rulemaking has been published, 
no statement is required under Sec.  202 of the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is 
procedural and interpretative 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 Sec.  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 Small Business Administration Office of Advocacy, A Guide for 
Government Agencies: How to Comply with the Regulatory Flexibility Act, 
at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of 
agency procedure, practice, and interpretation within the meaning of 5 
U.S.C. 553; and, therefore, the rule is exempt from both the notice and 
comment rulemaking procedures of the

[[Page 12583]]

APA and the requirements under the RFA.

List of Subjects in 29 CFR Part 1989

    Administrative practice and procedure, Employment, Taxation, 
Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of 
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety 
and Health.

    Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.


0
Accordingly, for the reasons set out in the preamble, 29 CFR part 1989 
is added to read as follows:

PART 1989--PROCEDURES FOR THE HANDLING OF RETAILIATION COMPAINTS 
UNDER THE TAXPAYER FIRST ACT (TFA)

Subpart A--Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1989.100 Purpose and scope.
1989.101 Definitions.
1989.102 Obligations and prohibited acts.
1989.103 Filing of retaliation complaint.
1989.104 Investigation.
1989.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1989.106 Objections to the findings and the preliminary order and 
requests for a hearing.
1989.107 Hearings.
1989.108 Role of Federal agencies.
1989.109 Decisions and orders of the administrative law judge.
1989.110 Decisions and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1989.111 Withdrawal of complaints, findings, objections, and 
petitions for review; settlement.
1989.112 Judicial review.
1989.113 Judicial enforcement.
1989.114 District court jurisdiction of retaliation complaints.
1989.115 Special circumstances; waiver of rules.

    Authority:  26 U.S.C. 7623(d); Secretary of Labor's Order 08-
2020 (May 15, 2020), 85 FR 58393 (September 18, 2020); Secretary of 
Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 
2020).

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


Sec.  1989.100  Purpose and scope.

    (a) This part sets forth procedures for, and interpretations of, 
section 1405(b) of the Taxpayer First Act (TFA), Public Law 116-25, 133 
Stat. 981 (July 1, 2019) (codified at 26 U.S.C. 7623(d)). TFA provides 
for employee protection from retaliation because the employee has 
engaged in protected activity pertaining to underpayment of tax or any 
conduct which the employee reasonably believes constitutes a violation 
of the internal revenue laws or any provision of Federal law relating 
to tax fraud.
    (b) This part establishes procedures under TFA for the expeditious 
handling of retaliation complaints filed by employees, or by persons 
acting on their behalf. These rules, together with those codified at 29 
CFR part 18, set forth the procedures under TFA for submission of 
complaints, investigations, issuance of findings and preliminary 
orders, objections to findings and orders, litigation before 
administrative law judges (ALJs), post-hearing administrative review, 
and withdrawals and settlements. In addition, these rules provide the 
Secretary's interpretations on certain statutory issues.


Sec.  1989.101  Definitions.

    As used in this part:
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom the 
Assistant Secretary delegates authority under TFA.
    Business days means days other than Saturdays, Sundays, and Federal 
holidays.
    Complainant means the person who filed a TFA complaint or on whose 
behalf a complaint was filed.
    Employee means an individual presently or formerly working for, an 
individual applying to work for, or an individual whose employment 
could be affected by, another person.
    IRS means the Internal Revenue Service of the United States 
Department of the Treasury.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Person means an individual, partnership, company, corporation, 
association (incorporated or unincorporated), trust, or estate.
    Respondent means the person named in the complaint who is alleged 
to have violated TFA.
    Secretary means the Secretary of Labor.
    TFA means section 1405(b) of the Taxpayer First Act (TFA), Public 
Law 116-25, 133 Stat. 981 (July 1, 2019) (codified at 26 U.S.C. 
7623(d)).


Sec.  1989.102  Obligations and prohibited acts.

    (a) No employer or any officer, employee, contractor, 
subcontractor, or agent of such employer may discharge, demote, 
suspend, threaten, harass, or in any other manner retaliate against, 
including, but not limited to, intimidating, restraining, coercing, 
blacklisting, or disciplining, an employee in the terms and conditions 
of employment in reprisal for the employee having 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 an employer or any officer, employee, 
contractor, subcontractor, or agent of such employer in reprisal for 
any lawful act done by the employee:
    (1) To provide information, cause information to be provided, or 
otherwise assist in an investigation regarding underpayment of tax or 
any conduct which the employee reasonably believes constitutes a 
violation of the internal revenue laws or any provision of Federal law 
relating to tax fraud, when the information or assistance is provided 
to the Internal Revenue Service, the Secretary of the Treasury, the 
Treasury Inspector General for Tax Administration, the Comptroller 
General of the United States, the Department of Justice, the United 
States Congress, a person with supervisory authority over the employee, 
or any other person working for the employer who has the authority to 
investigate, discover, or terminate misconduct; or
    (2) To testify, participate in, or otherwise assist in any 
administrative or judicial action taken by the Internal Revenue Service 
relating to an alleged underpayment of tax or any violation of the 
internal revenue laws or any provision of Federal law relating to tax 
fraud.


Sec.  1989.103  Filing of retaliation complaint.

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

[[Page 12584]]

numbers for these officials are set forth in local directories and at 
the following internet address: http://www.osha.gov. Complaints may 
also be filed online at https://www.osha.gov/whistleblower/WBComplaint.html.
    (d) Time for filing. Within 180 days after an alleged violation of 
TFA occurs, any person who believes that they have been retaliated 
against in violation of TFA may file, or have filed by any person on 
their behalf, a complaint alleging such retaliation. The date of the 
postmark, facsimile transmittal, electronic filing or transmittal, 
telephone call, hand-delivery, delivery to a third-party commercial 
carrier, or in-person filing at an OSHA office will be considered the 
date of filing. The time for filing a complaint may be tolled for 
reasons warranted by applicable case law. For example, OSHA may 
consider the time for filing a complaint to be tolled if a complainant 
mistakenly files a complaint with an agency other than OSHA within 180 
days after an alleged adverse action.


Sec.  1989.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, OSHA 
will notify the respondent and the complainant's employer (if 
different) 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, consistent 
with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable 
confidentiality laws. OSHA will also notify the respondent of its 
rights under paragraphs (b) and (f) of this section and Sec.  
1989.110(e). OSHA will provide an unredacted copy of these same 
materials to the complainant (or the complainant's legal counsel if 
complainant is represented by counsel) and to the IRS.
    (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 generally 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 complainant shows that the adverse 
action took place shortly after the protected activity. If the required 
showing has not been made, the complainant (or the complainant's legal 
counsel if complainant is represented by counsel) will be so notified 
and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, further investigation of 
the complaint will not be conducted if the respondent demonstrates by 
clear and convincing evidence that it would have taken the same adverse 
action in the absence of the complainant's protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy its burden set forth in the prior paragraph, OSHA will proceed 
with the investigation. The investigation will proceed whenever it is 
necessary or appropriate to confirm or verify the information provided 
by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for in Sec.  1989.105, if OSHA has reasonable cause, on the 
basis of information gathered under the procedures of this part, to 
believe that the respondent has violated TFA and that preliminary 
reinstatement is warranted, OSHA will contact the respondent (or the 
respondent's legal counsel if respondent is represented by counsel) to 
give notice of the substance of the relevant evidence supporting the 
complainant's allegations as developed during the course of the 
investigation. This evidence includes any witness statements, which 
will be redacted to protect the identity of confidential informants 
where statements were given in confidence; if the statements cannot be 
redacted without revealing the identity of confidential informants, 
summaries of their contents will be provided. The complainant will also 
receive a copy of the materials that must be provided to the respondent 
under this paragraph. Before providing such materials, OSHA will redact 
them, if necessary, consistent 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 
must present this evidence within 10 business days of OSHA's 
notification pursuant to this paragraph, or as soon thereafter as OSHA 
and the respondent can agree, if the interests of justice so require.


Sec.  1989.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days 
of the filing of the complaint, written findings as to whether or not 
there is reasonable cause to believe that the respondent has retaliated 
against the complainant in violation of TFA.
    (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

[[Page 12585]]

providing relief to the complainant. The preliminary order will include 
all relief necessary to make the complainant whole including, where 
appropriate: Reinstatement with the same seniority status that the 
complainant would have had, but for the retaliation; the sum of 200 
percent of the amount of back pay and 100 percent of all lost benefits, 
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(a)(2) and will be compounded daily. Where 
appropriate, 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 periods.
    (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 physical or electronic means that allow OSHA to confirm 
delivery to all parties of record (or each party's legal counsel if the 
party is represented by counsel). The findings and, where appropriate, 
the preliminary order will inform the parties of the right to object to 
the findings and/or order and to request a hearing, and of the right of 
the respondent to request an award of attorney fees not exceeding 
$1,000 from the ALJ, regardless of whether the respondent has filed 
objections, if the respondent alleges that the complaint was frivolous 
or brought in bad faith. The findings and, where appropriate, the 
preliminary order, also will give the address of the Chief 
Administrative Law Judge, U.S. Department of Labor, or appropriate 
information regarding filing objections electronically with the Office 
of Administrative Law Judges if electronic filing is available. The 
findings also may specify the means, including electronic means, for 
serving OSHA and the Associate Solicitor for Fair Labor Standards with 
documents in the administrative litigation as required under this Part. 
At the same time, the Assistant Secretary will file with the Chief 
Administrative Law Judge a copy of the original complaint and a copy of 
the findings and/or order.
    (c) The findings and any preliminary order will be effective 30 
days after receipt by the respondent (or the respondent's legal counsel 
if the respondent is represented by counsel), or on the compliance date 
set forth in the preliminary order, whichever is later, unless an 
objection and/or a request for hearing has been timely filed as 
provided at Sec.  1989.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and the preliminary order, 
regardless of any objections to the findings and/or the order.

Subpart B--Litigation


Sec.  1989.106  Objections to the findings and the preliminary order 
and requests for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and/or preliminary order, or a respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney fees under TFA, must file any objections and/or a request for 
a hearing on the record within 30 days of receipt of the findings and 
preliminary order pursuant to Sec.  1989.105. The objections and 
request for hearing and/or request for attorney fees must be in writing 
and must state whether the objections are to the findings, the 
preliminary order, or both, and/or whether there should be an award of 
attorney fees. The date of the postmark, facsimile transmittal, or 
electronic transmittal is considered the date of filing; if the 
objection is filed in person, by hand delivery, or other means, the 
objection is filed upon receipt. Objections must be filed with the 
Chief Administrative Law Judge, U.S. Department of Labor, in accordance 
with 29 CFR part 18, and copies of the objections must be served at the 
same time on 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. 
OSHA and the Associate Solicitor for Fair Labor Standards may specify 
the means, including electronic means, for serving then with copies of 
the objections.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the Assistant Secretary's preliminary order of 
reinstatement, which shall be granted only based on exceptional 
circumstances. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings and/or the 
preliminary order will become the final decision of the Secretary, not 
subject to judicial review.


Sec.  1989.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A of part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to an ALJ who 
will notify the parties of the day, time, and place of hearing. The 
hearing is to commence expeditiously, except upon a showing of good 
cause or unless otherwise agreed to by the parties. Hearings will be 
conducted de novo on the record. ALJs have broad discretion to limit 
discovery in order to expedite the hearing.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated and a single 
hearing will be conducted.
    (d) Formal rules of evidence will not apply, but rules or 
principles designed to assure production of the most probative evidence 
will be applied. The ALJ may exclude evidence that is immaterial, 
irrelevant, or unduly repetitious.


Sec.  1989.108  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, and the right to seek discretionary 
review of a decision of the Administrative Review Board (ARB) from the 
Secretary.
    (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

[[Page 12586]]

required by these rules. Except as otherwise provided in rules of 
practice and/or procedure before the OALJ or the ARB, OSHA and the 
Associate Solicitor for Fair Labor Standards may specify the means, 
including electronic means, for serving them with documents under this 
section.
    (b) The IRS, if interested in a proceeding, may participate as 
amicus curiae at any time in the proceeding, at the IRS's discretion. 
At the request of the IRS, copies of all documents in a case must be 
sent to the IRS, whether or not it is participating in the proceeding.


Sec.  1989.109  Decisions and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither OSHA's determination to dismiss a complaint without 
completing an investigation pursuant to Sec.  1989.104(e) nor OSHA's 
determination to proceed with an investigation is subject to review by 
the ALJ, and a complaint may not be remanded for the completion of an 
investigation or for additional findings on the basis that a 
determination to dismiss was made in error. Rather, if there otherwise 
is jurisdiction, the ALJ will hear the case on the merits or dispose of 
the matter without a hearing if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the ALJ will issue an order providing all relief necessary to make 
the complainant whole, including, where appropriate: Reinstatement with 
the same seniority status that the complainant would have had, but for 
the retaliation; the sum of 200 percent of the amount of back pay and 
100 percent of all lost benefits, 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(a)(2) 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 periods.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ALJ determines that a complaint was 
frivolous or was brought in bad faith, the ALJ may award to the 
respondent a reasonable attorney fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. OSHA and the Associate 
Solicitor for Fair Labor Standards may specify the means, including 
electronic means, for service of decisions on them under this section. 
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 30 days after the date of the 
decision unless a timely petition for review has been filed with the 
Administrative Review ARB (ARB), U.S. Department of Labor. The decision 
of the ALJ will become the final order of the Secretary unless a 
petition for review is timely filed with the ARB and the ARB accepts 
the petition for review.


Sec.  1989.110  Decisions 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 Administrative 
Review Board (ARB or Board), which has been delegated the authority to 
act for the Secretary and issue decisions under this part subject to 
the Secretary's discretionary review. 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 30 days of the date of the decision of the ALJ. All 
petitions and documents submitted to the ARB must be filed 
electronically, in accordance with Part 26, unless another filing 
method has been authorized by the ARB for good cause. The date of the 
postmark, facsimile transmittal, or electronic 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. The petition for review also must be served on the Assistant 
Secretary and on the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor. OSHA and the Associate Solicitor 
for Fair Labor Standards may specify the means, including electronic 
means, for service of petitions for review on them under this section.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final 
order of the Secretary unless the ARB, within 30 days of the filing of 
the petition, issues an order notifying the parties that the case has 
been accepted for review. If a case is accepted for review, the 
decision of the ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that any order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If a 
timely petition for review is not filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If a 
timely petition for review is not filed, the resulting final order is 
not subject to judicial review.
    (c) The decision of the ARB will be issued within 120 days of the 
conclusion of the hearing, which will be deemed to be 30 days after the 
decision of the ALJ, unless a motion for reconsideration has been filed 
with the ALJ in the interim. In such case, the conclusion of the 
hearing is the date the motion for reconsideration is ruled upon or 30 
days after a new decision is issued. The ARB's decision will be served 
upon all parties and the Chief Administrative Law Judge. The decision 
will also be served on the Assistant Secretary and on the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
even if the Assistant Secretary is not a party. OSHA and the Associate 
Solicitor for Fair Labor Standards may specify the means, including 
electronic means, for service of ARB decisions on them under this 
section.

[[Page 12587]]

    (d) If the ARB concludes that the respondent has violated the law, 
the ARB will issue an order providing all relief necessary to make the 
complainant whole. The order will require, where appropriate: 
Reinstatement with the same seniority status that the complainant would 
have had, but for the retaliation; the sum of 200 percent of the amount 
of back pay and 100 percent of all lost benefits, 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(a)(2) 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 periods. Such order is subject to discretionary review by 
the Secretary (as provided in Secretary's Order 01-2020 or any 
successor to that order).
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the 
request of the respondent, the ARB determines that a complaint was 
frivolous or was brought in bad faith, the ARB may award to the 
respondent a reasonable attorney fee, not exceeding $1,000. An order 
under this section is subject to discretionary review by the Secretary 
(as provided in Secretary's Order 01-2020 or any successor to that 
order).

Subpart C--Miscellaneous Provisions


Sec.  1989.111  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 the complaint by notifying OSHA, orally or in writing, of the 
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 (or 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 the complaint after the filing 
of objections to the Assistant Secretary's findings and/or preliminary 
order.
    (b) The Assistant Secretary may withdraw the findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec.  1989.106, provided that no 
objection has been filed yet, and substitute new findings and/or a new 
preliminary order. The date of the receipt of the substituted findings 
or order will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw a 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings and/or order, and there are no other pending objections, the 
Assistant Secretary's findings and/or order will become the final order 
of the Secretary. If the ARB approves a request to withdraw a petition 
for review of an ALJ decision, and there are no other pending petitions 
for review of that decision, the ALJ's decision will become the final 
order of the Secretary. If objections or a petition for review are 
withdrawn because of settlement, the settlement must be submitted for 
approval in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, but before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if 
OSHA, the complainant, and the respondent agree to a settlement. OSHA's 
approval of a settlement reached by the respondent and the complainant 
demonstrates OSHA's consent and achieves the consent of all three 
parties.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the ALJ if the case is before the ALJ, or 
by the ARB if the ARB has accepted the case for review. If the 
Secretary has accepted the case for discretionary review, or directed 
that the case be referred for discretionary review, the settlement must 
be approved by the Secretary. A copy of the settlement will be filed 
with the ALJ or the ARB, as appropriate.
    (e) Any settlement approved by OSHA, the ALJ, the ARB or the 
Secretary will constitute the final order of the Secretary and may be 
enforced in United States district court pursuant to Sec.  1989.113.


Sec.  1989.112  Judicial review.

    (a) Within 60 days after the issuance of a final order for which 
judicial review is available (including a decision issued by the 
Secretary upon discretionary review), 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 the 
case, including the record of proceedings before the ALJ, will be 
transmitted by the ARB or the ALJ, as the case may be, to the 
appropriate court pursuant to the Federal Rules of Appellate Procedure 
and the local rules of such court.


Sec.  1989.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order 
of reinstatement or a final order issued under TFA, including one 
approving a settlement agreement, 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 issued under TFA, including one 
approving a settlement agreement, 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.


Sec.  1989.114  District court jurisdiction of 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 States, which will have 
jurisdiction over such an action without regard to the amount in 
controversy. Either party shall be entitled to a trial by jury.
    (b) A proceeding under paragraph (a) of this section shall be 
governed by the

[[Page 12588]]

same legal burdens of proof specified in Sec.  1989.109.
    (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.


Sec.  1989.115  Special circumstances; waiver of rules.

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

[FR Doc. 2022-04238 Filed 3-4-22; 8:45 am]
BILLING CODE 4510-26-P


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