Final Rule, Procedures for the Handling of Discrimination Complaints Under Federal Employee Protection Statutes, 29 CFR Part 24, 63 Fed. Reg. 6614 (Feb. 9, 1998)

Interim Relief

   The Secretary is required under the amended ERA to order interim relief upon the conclusion of an administrative hearing and the issuance of a recommended decision that the complaint has merit. Such interim relief includes all relief that would be included in a final order of the Secretary except compensatory damages.

Burdens of Proof; Avoidance of Frivolous Complaints

   The 1992 Amendments revised the burdens of proof in ERA cases by establishing statutory burdens of proof and a standard for the dismissal of complaints which do not present a prima facie case. Before the 1992 Amendments, the ERA itself contained no statutory rules on burdens of proof--the burdens of proof were based on precedential cases derived from other discrimination law (see, e.g., Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274 (1977); Texas Department of Community Affairs v. Burdine , 450 U.S. 248 (1981); Mackowiak v. University Nuclear Systems, Inc. , 735 F.2d 1159 (9th Cir. 1984); and Dartey v. Zack Company of Chicago , Case No. 82-ERA (Decision of the Secretary, April 25, 1983)).

   Under the former lines of analysis for the ERA and continuing for whistleblower complaints under the other six environmental statutes, once a complainant employee presents evidence sufficient to raise an inference that protected conduct likely was a "motivating'' factor in an adverse action taken by an employer against the employee, it is necessary for the employer to present evidence that the alleged adverse treatment was motivated by legitimate, nondiscriminatory reasons. If the employer presents such evidence, the employee still may succeed by showing that the proffered reason was pretextual, that is, that a discriminatory reason more likely motivated the employer. The complainant thus bears the ultimate burden of proving by a preponderance of the evidence that he or she was retaliated against in violation of the law. In such "pretext'' cases, the factfinder's disbelief of the reasons put forward by the employer, together with the elements of the prima facie case, may be sufficient to show such intentional discrimination. See St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993); Dartey v. Zack, supra , pp. 6-9.

   In certain cases, the trier of fact may conclude that the employer was motivated by both prohibited and legitimate reasons ("dual motive'' cases). In such dual motive cases, the employer may prevail only by showing by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.

   The 1992 amendments added new statutory burdens of proof to the ERA. The changes have been described on the one hand as a lowering of the burden on complainants in order to facilitate relief for employees who have been retaliated against for exercising their statutory rights, and, on the other hand, as a limitation on the investigative authority of the Secretary of Labor when the burden is not met.

   Under the ERA as amended, a complainant must make a " prima facie '' showing that protected conduct or activity was "a contributing factor'' in the unfavorable personnel action alleged in the complaint, i.e. , that the whistleblowing activity, alone or in combination with other factors, affected in some way the outcome of the employer's personnel decision (section 211(b)(3)(A)). This is a lesser standard than the "significant'', "motivating'', "substantial'', or "predominant'' factor standard sometimes articulated in case law under statutes prohibiting discrimination. If the complainant does not make the prima facie showing, the complaint must be dismissed and the investigation discontinued.

   Even in cases where the complainant meets the initial burden of a prima facie showing, the investigation must be discontinued if the employer "demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action'' in the absence of the protected conduct (section 211(b)(3)(B)). The complainant is free, as under prior law, to pursue the case before the administrative law judge (ALJ) if the Secretary dismisses the complaint.

   The "clear and convincing evidence'' standard is a higher degree of proof burden on employers than the former "preponderance of the evidence'' standard. In the words of Representative George Miller, Chairman of the House Committee on Interior and Insular Affairs, "[t]he conferees intend to replace the burden of proof enunciated in Mt. Healthy v. Doyle , 429 U.S. 274 (1977), with this lower burden in order to facilitate relief for employees who have been retaliated against for exercising their rights under section 210 * * *.'' 138 Cong. Rec. H 11409 (October 5, 1992).

   Thus, under the amendments to ERA, the Secretary must dismiss the complaint and not investigate (or cease investigating) if either: (1) The complainant fails to meet the prima facie showing that protected activity was a contributing factor in the unfavorable personnel action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same unfavorable personnel action absent the protected conduct.

   These new burden of proof limitations also apply to the determination as to whether an employer has violated the Act and relief should be ordered. Thus, a determination that a violation has occurred may only be made if the complainant has demonstrated that protected behavior or conduct was a contributing factor in the unfavorable personnel action alleged in the complaint (section 211(b)(3)(C)). Where the complainant satisfies this burden, relief still may not be ordered if the employer satisfies the statutory requirement to demonstrate by "clear and convincing evidence'' that it would have taken the same personnel action in the absence of the protected activity (section 211(b)(3)(D)).

Other Changes

   The ERA whistleblower provisions must be prominently posted in any place of employment to which the Act applies. The amendments also include an express provision that the ERA whistleblower provisions may not be construed to expand, diminish, or otherwise affect any right otherwise available to an employee under Federal or State law to redress the employee's discharge or other discriminatory action taken by the employer against the employee--codifying and broadening the Supreme Court decision in English v. General Electric Co. , 496 U.S. 72 (1990). Finally, the amendments direct the NRC and DOE not to delay addressing any "substantial safety hazard'' during the pendency of a whistleblower proceeding, and provide that a determination by the Secretary of Labor that a whistleblower violation has not occurred "shall not be considered'' by the NRC and DOE in determining whether a substantial safety hazard exists.

addition, in the period since the comment period closed, a request for rulemaking was received from Steptoe and Johnson on behalf of Alyeska Pipeline Service Company, which has also been considered.

   The major comments received by the Department and the response of the Department to the comments are discussed as they pertain to each section of Part 24 which is amended or to which new provisions are added.

   One comment was the general suggestion that these rules should be produced through negotiated rulemaking, involving, as that process does, the regulatory agencies (Nuclear Regulatory Commission, Department of Energy, Environmental Protection Agency), industry, public interest groups, and respondents and complainants and their representatives. The Department does not believe that negotiated rulemaking is appropriate for these regulations. The regulations involve largely procedural issues not so difficult to resolve as to justify invoking the procedures of the Negotiated Rulemaking Act of 1990, 5 U.S.C. 581 et seq .

   In the period since the proposed rule was published, two significant organizational changes have taken place in the Department of Labor which materially affect these regulations. By Secretary's Order No. 2-96 (61 FR 19978, May 3, 1996), the Secretary appointed an Administrative Review Board ("ARB'' or "Board'') to decide all cases previously decided by the Secretary, including the various employee protection "whistleblower'' statutes which are the subject of these regulations. Therefore the ARB has been substituted for references to the Secretary.

   In addition, the Secretary has delegated the authority to investigate complaints under these statutes to the Assistant Secretary of the Occupational Safety and Health Administration ("OSHA''), effective for all complaints received on or after February 3, 1997. Secretary's Order 6-96 (62 FR 111, Jan. 2, 1997, as corrected by 62 FR 8085, Feb. 21, 1997). Since OSHA already had authority to investigate complaints under the employee protection provisions of the Surface Transportation Assistance Act and the discrimination provisions of the Occupational Safety and Health Act, this action placed all authority to investigate alleged discrimination because of an employee's complaints regarding the environment and safety and health (other than in the mining industry) in one agency. Therefore in these regulations OSHA has been substituted for all references to the Wage and Hour Division and the Administrator thereof.

   The Department has also published a proposed rule to provide new alternative dispute resolution ("ADR'') procedures in a number of Departmental programs, including the various whistleblower statutes. 62 FR 6690 (Feb. 12, 1997). This would supplement existing procedures in the regulations of the Office of Administrative Law Judges, which allow the parties to a proceeding before an ALJ to request appointment of a settlement judge to seek voluntary resolution of the issues. 29 CFR 18.9(e). The proposed rule envisions a pilot program under which the Department would investigate a complaint and then, where the case is found to be suitable for ADR, offer the employer and employees the option of mediation and/or arbitration. The ARB would not be bound by any resolution reached, but would incorporate the settlement in the final ARB order where it meets ARB standards. 62 FR 6693.

Section 24.1 Purpose and Scope

   The proposal updated the list of the Federal statutes providing employee protections for whistleblowing activities for which the Department of Labor is responsible for enforcement under this part to add the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610. This was subsequently accomplished in another rulemaking. 62 FR 19985 (May 3, 1996). No comments were received on this provision and no changes have been made.

Section 24.2 Obligations and Prohibited Acts

   The proposal revised this provision to reflect the statutory amendments adding to the list of protected activities explicitly covered under the ERA, and to state that under the Secretary's interpretation, the whistleblowing activities added to the ERA are protected under all of the whistleblower statutes. The requirement for posting of notices of the employee protection provisions of the ERA was also added, together with a provision that failure to post the required notice shall make the requirement that a complaint be filed with the Administrator within 180 days inoperative unless and until the notice is later posted or the respondent is able to establish that the employee had actual notice of the provisions. This explicit recognition that the statute of limitations may be equitably tolled is based on case law under analogous statutes. See, for example, Kephart v. Institute of Gas Technology , 581 F.2d 1287, 1289 (7th Cir. 1978), cert. denied , 450 U.S. 959 (1981), and Bonham v. Dresser Industries, Inc. , 569 F.2d 187 (3rd Cir. 1977), cert. denied , 439 U.S. 821 (1978), arising under the Age Discrimination in Employment Act, and Kamens v. Summit Stainless, Inc. , 586 F. Supp. 324 (E.D. Pa. 1984), arising under the Fair Labor Standards Act.

   Three commenters state that references to the Atomic Energy Act of 1954 are incorrect because that statute has no whistleblower provisions involving the Secretary of Labor, and they state that the NRC enforces all aspects of that statute.

   The Department recognizes that the whistleblower provisions were enacted to be a part of the Energy Reorganization Act of 1974, as amended in 1992. The confusion arises because the whistleblower provisions protect whistleblowers when they disclose alleged substantive violations of the Atomic Energy Act; however, when they are discriminated against for doing so, this is a violation of the ERA, not the Atomic Energy Act. The statutory references is clarified accordingly.

   Two commenters assert that the regulation's description of employer conduct which is prohibited--"intimidates, threatens, restrains, coerces, blacklists, discharges or in any other manner discriminates against an employee''--should be deleted in favor of the language of the statute, which prohibits the employer's "discharge [of] any employee or otherwise discriminat[ing] against any employee with respect to his compensation, terms, conditions, or privileges of employment * * *.''

   The language in paragraph (b) of the proposed regulation is exactly the same as the language in § 24.2(b) of the current regulation. The language is simply a fuller statement of the scope of prohibited conduct, which encompasses discrimination of any kind with respect to the terms, conditions or privileges of employment. Accordingly, no change is necessary.

   One commenter points out that the regulations proscribe discrimination by an employer against an employee who "has'' engaged in protected conduct. The commenter believes that literally read, the regulation does not require a showing of a causal connection between whistleblowing and discrimination.

   In order to avoid any possibility of confusion, the language of the regulation in paragraphs (b) and (c) has been changed to reflect the statutory language.

   The regulations at § 24.2(d) provide that the required poster must be prepared or approved by DOL. Two of the commenters believe that the poster

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currently required by the Nuclear Regulatory Commission is adequate and no additional poster should be required. One commenter sees this as unnecessary as long as the employer's poster contains the required information.

   The statute states: "The provisions of this section shall be prominently posted in any place of employment to which this section applies.'' The Department believes that it is necessary to use a poster prepared or approved by the Department to ensure that the poster contains the essential information which needs to be communicated to employees. For the convenience of the public, the Department has prepared a poster which is published as an appendix to this rule and which is available at any local OSHA office and at the DOL Website. The Department will also approve any poster which contains the same information and does not contain any misleading information. For example, the Department is working with NRC to approve a poster which would satisfy its needs as well as the requirements of the ERA, thus eliminating the need that both notices be posted.

   Contrary to the statement of the commenter, there is no requirement in these regulations that respondents keep records of the posting of the notice. This is a continuing requirement that should not require any kind of recordkeeping.

   Three commenters discuss the proposed § 24.2(d)(2), under which the employer's failure to post the required notice of employee rights could lead to a tolling of the statute of limitations. They express the concern that the tolling rule will be applied too automatically, rather than on a case-by-case basis pursuant to general equitable principles as applied to all the facts and circumstances of a particular case.

   The regulation indicates that the employer has an opportunity to show that the complaining employee was in fact aware of his or her rights, and thus equitable tolling would not apply. A clarifying change is made to the regulation to provide that the 180 day period "ordinarily'' runs from the date the notice is posted (assuming of course that the employee was still employed at the site) or the employee receives actual notice.

Section 24.3 Complaints

   The proposed regulation revised § 24.3 to reflect the 180-day filing period for complaints under the ERA.

   One commenter asserts that the regulations should provide that the respondent may raise the issue of timeliness of complaints any time prior to the conclusion of the hearing. The commenter suggests that without such provision respondents will be deprived of the opportunity to raise the timeliness issue at a time which is fair to them.

   As the commenter noted, pursuant to the rules of the Office of Administrative Law Judges at 29 C.F.R. 18.1(a), the Federal Rules of Civil Procedure ("FRCP'') apply in any instance where there is no explicit rule in Part 18 or the governing program's statute and regulations. Although, unlike under the Federal Rules, there is no provision for filing an answer in these regulations, there are commonly various occasions where issues such as timeliness can and appropriately should be raised. The Department believes it is reasonable to require that timeliness ordinarily be raised early in the proceedings, as both the ALJ and the Secretary ruled in Hobby v. Georgia Power Co. , No. 90- ERA-30, ALJ's Recommended Decision and Order (Nov. 8, 1991), Secretary (Aug. 4, 1995) (reversing and remanding on other grounds). A specific provision seems unnecessary.

   Two commenters take issue with the present practice, which is continued in the proposed regulations, of not requiring the complainant to serve the complaint on the respondent at the same time it is filed with the Department. Currently the respondent must wait to receive the complaint from the Department. The commenters argue that requiring the complainant to serve the complaint on the respondent would increase the respondent's response time. Under their view of what the regulations should require, if the complainant did not serve the respondent, then the respondent should have additional time to respond to the Department.

   In the Department's experience the procedure in the present regulations has worked satisfactorily. The Department may need to examine the complaint or, as discussed below, to supplement the complaint with interviews of the complainant, before sending it to the respondent. Furthermore, a complainant may wish to withdraw a complaint if, for example, he or she learns it is untimely. A comparison in this regard with proceedings before administrative law judges is not valid, because the complaint initiates an investigation, not a proceeding before an ALJ.

   One commenter states that the regulations appear to protect persons who raise concerns in bad faith, but does not cite any specific language in the regulations to support that proposition.

   Nothing in the current or proposed regulations provides for relief where complaints are found to be made in bad faith. Such a provision seems unnecessary. However, former § 24.9, which was inadvertently omitted from the proposal, has been included again. This provision declares that employees who deliberately and without direction of their employer violate Federal law are not protected.

Section 24.4 Investigations

   Section 24.4 was proposed to be revised to provide for filing of hearing requests by facsimile (fax), telegram, hand-delivery, or next- day delivery service (e.g., overnight couriers), to conform the regulations to current business practices. In addition, the proposed regulation provided that the request for a hearing must be received within five business days, rather than five calendar days, from receipt of the Administrator's determination. The proposed regulation also made it clear that the complainant may appeal from a finding that a violation has occurred where the determination or order is partially adverse (e.g., where a complaint was only partially substantiated or the order did not grant all of the requested relief).

   One commenter suggests that the regulations should make clear that in a case where only a prevailing complainant appeals to an ALJ because of dissatisfaction with the remedy ordered by the Administrator (now the Assistant Secretary for OSHA), the non-appealing respondent would have an opportunity to contest liability before the ALJ. This would prevent respondents from having to file appeals in cases in which they have decided not to challenge the Administrator's ruling, not knowing in which cases the complainant will contest the remedy.

   Allowing cross-appeals would eliminate the need for complainants and respondents to guess in such cases or to file appeals in all such cases. This section is amended accordingly to allow for cross appeals. In addition, this section is simplified to provide the mechanism for appeals of both the complainant and the respondent in the same paragraph.

   As one commenter suggested, this section and § 24.8 are further amended in accordance with the Supreme Court decision in Darby v. Cisneros , 509 U.S. 137 (1993), to make it clear that exhaustion of administrative remedies is required.

   In response to a question raised by one commenter, § 24.4(d)(3) is revised to make it clear that service of copies of the appeal must be done by the party appealing.

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Section 24.5 Investigations under the Energy Reorganization Act

   A new § 24.5, concerning investigations under the Energy Reorganization Act, was proposed to detail operation of the new provisions under the ERA for dismissal of complaints where the employee has not alleged a prima facie case, or the employer has submitted clear and convincing evidence that it would have taken the same personnel action in the absence of the protected activity.

   Three commenters are critical of the Department's formulation in § 24.5(b) of what constitutes a prima facie case. They believe that the regulations should require the complainants to provide supporting evidence with their complaints, and they believe that the regulations give too much weight to the amount of time between the protected activity and the adverse action. In support of this latter criticism they cite cases for the proposition that this temporal proximity may be overcome by the employer's evidence of non-discriminatory reasons for the adverse action.

   It would be overly restrictive to require a complainant to provide evidence of discrimination (as distinguished from a showing) when the only purpose of the complaint is to trigger an investigation to determine if there is evidence of discrimination. Complainants generally do not have the knowledge or resources to actually submit "evidence'' of the violative conduct. With regard to the cited cases finding that temporal proximity between the protected activity and the adverse action was not enough to prove discrimination, those cases involved final decisions on the merits after evidence has been presented by both parties. As set forth in Couty v. Dole , 886 F.2d 147, 148 (8th Cir. 1989), case law establishes that "temporal proximity is sufficient as a matter of law to establish the final required element in a prima facie case of retaliatory discharge.''

   Furthermore, the regulation at issue here involves the complaint stage of the proceeding and merely triggers an investigation and not a finding by OSHA on the merits of the complaint. The regulation does not state that temporal proximity is always enough to establish a prima facie case, but rather states only that it is normally so. In arriving at a final decision, OSHA considers all pertinent evidence in addition to temporal proximity.

   One commenter cites cases dealing with who in the respondent organization must have the knowledge of the protected activity as part of a prima facie case and suggests that the regulations address this issue. This is a matter which must be determined on the basis of all the facts and circumstances of a particular case and is not suitable for inclusion in the regulations.

   The proposed regulations at § 24.5(b)(2) provide that the complainant must allege the existence of facts and evidence constituting a prima facie case of a violation in the complaint, supplemented as appropriate by interviews of the complainant. One commenter seeks elimination of these supplemental interviews. Two commenters suggest that since Wage and Hour (now the Occupational Safety and Health Administration) provides the complaint to the employer for his response, it is only fair to provide the employer with the information obtained in the interviews, as it might contain one or more of the elements of a violation to which the employer is required to respond.

   In the Department's view, the supplementation of the complaint by interviews of the complainant is necessary and appropriate because employees commonly lack the sophistication to aver the elements of a prima facie case and evidence in support thereof. It is recognized, however, that the supplemental interviews become a part of the complaint, and therefore in all fairness this information, in addition to the original complaint (which is routinely provided to the employer), ought to be provided to the employer. The regulation has been amended to so provide.

   As suggested by one commenter, § 24.5(b)(2) has been revised to separate out two elements of the required prima facie showing--that adverse personnel action has occurred, and that it likely resulted from the protected activity.

   One commenter questions the language in § 24.5(b)(3) wherein a prima facie case is described as an inference that the respondent knew of the complainant's protected activity and the protected activity "was likely a reason'' for an adverse personnel action. The commenter believes that this language creates a standard different from the statutory requirement that the protected activity be "a contributing factor'' in the unfavorable personnel action.

   There is no intention to deviate from the statutory standard for establishment of a prima facie case, as set forth in § 24.5(b)(2). The language "was likely a reason'' was used to explain the meaning of "was a contributing factor.'' However, the provision is clarified.

   One commenter argues that this section should require pleading and proof of various facts relating to a claim of retaliatory nonselection, failure to hire, nonretention, nonpromotion, improper disciplinary action, improper layoff or contract termination.

   The facts that must be pled and proven to establish a particular form of discrimination depend on the facts and circumstances of a particular case. The Department does not believe that it is appropriate to attempt to catalogue in a regulation all such facts for all possible forms of discrimination, as suggested by the commenter.

   One commenter points out a typographical error: At § 24.5(b)(2) the word "appropriated'' was intended to read "appropriate.''

   Another commenter points out a typographical error in § 24.5(c)(2), which provides that the respondent has five business days to rebut the allegations in the complaint "from receipt of notification of the complainant .'' This is a typographical error and the provision is amended by changing "complainant'' to "complaint''.

   One commenter believes that the legislative history of the 1992 Amendments shows that the "clear and convincing'' standard applicable to the respondent's burden of proof to rebut the complainant's prima facie case applies only at the pre-investigative stage of the case and does not apply when the case is before the ALJ and the Secretary (ARB).

   The 1992 Amendments show clearly that the "clear and convincing'' standard is applicable to respondents at all stages of the proceedings. The new § 24.5(c)(1) applies the standard to the pre-investigative stage of the proceedings. The new § 24.7(b) applies the standard to proceedings before the ALJ and the Administrative Review Board. The interplay of these provisions was at issue in the recent case of Dysert v. United States Secretary of Labor , 105 F.3d 607 (11th Cir. 1997), in which the court affirmed the Secretary's determination that a complainant must show more than a prima facie case of discrimination in order to shift the burden of persuasion to the employer. Rather, the complainant must "demonstrate'' that the protected behavior was a contributing factor by a preponderance of the evidence before the ALJ. In dual motive cases, the burden then shifts to the respondent to demonstrate by clear and convincing evidence that it would have taken the same action in the absence of the protected activity.

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   Three commenters do not believe that five days is enough time for respondents to respond to the complainant's prima facie case with clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of protected activity.

   Given the overall statutory time frame of 90 days, and the time necessary for other stages of the proceedings, no more than five days is available for this stage of the process. At any time during the investigation the respondent is free to provide OSHA with evidence in its defense which will be considered by OSHA in making its final determination.

   Section 24.5(d) is revised to simplify the provisions for appeal of a notice of dismissal of a complaint by cross-referencing the service provisions in § 24.4.

Section 24.6 Hearings

   Proposed § 24.6 (formerly § 24.5) made it clear that the Wage-Hour Administrator (now the Assistant Secretary of OSHA) may participate in proceedings as a party or as amicus curiae . In addition, at the request of the Nuclear Regulatory Commission, an express provision was added to permit Federal agencies to participate as amicus curiae , and to receive copies of pleadings on request.

   Because of comments suggesting that the various time frames are too short, and in recognition of current practices, § 24.6(a) is amended to allow the parties to agree to a postponement of the hearing.

   Two commenters criticize the new provision in § 24.6(f)(1) allowing the Administrator (now the Assistant Secretary of OSHA) to participate as a party or as amicus curiae at any time in the proceedings. They argue that the Administrator cannot objectively investigate a complaint and then participate as a party, and that the Administrator's participation as a party would present problems about confidential information obtained during the investigative stage of the proceeding and with the attendance of witnesses at the hearing. In addition, one commenter believes this provision would run counter to 29 CFR 18.32 and be in conflict with Secretary's Order 1-93 (now Secretary's Order 6-96), which specifies that the Solicitor of Labor makes the determination to bring legal proceedings.

   This proposal makes it expressly possible for the Assistant Secretary to participate as an amicus or a party as a matter of right in any case where such participation is necessary or beneficial to the program. Under the existing regulations, the Administrator (now the Assistant Secretary) in certain cases has acted as amicus before ALJs and the Secretary (now the ARB). The Assistant Secretary's participation as an amicus or party would follow an investigation conducted pursuant to the normal procedures, as happens in most other programs where the Department prosecutes after conducting an investigation. Since the Assistant Secretary is not the adjudicator, there would be no conflict between the Assistant Secretary first investigating a complaint and later acting in a prosecutorial capacity. An analogous procedure is followed in other programs. See, e.g. , the Davis-Bacon regulations at 29 CFR 5.11. Furthermore, as in other programs, OSHA would not be required to disclose confidential information. Witnesses would be available pursuant to normal procedures. Since OSHA would not be both a party in a case and an advisor to the Secretary, there is no conflict with 29 CFR 18.32. Finally, the Solicitor of Labor, or appropriate designee, would continue to make the decision as to participation in the legal proceedings, and would represent the Assistant Secretary, consistent with Secretary's Order 6-96.

   One commenter asserts that the requirements in § 24.6(f)(2) and in Secs. 24.4(d)(4) and 24.5(d)(2) that parties serve the Administrator (now the Assistant Secretary of OSHA) and the Associate Solicitor of the Fair Labor Standards Division with pleadings and with copies of the request for a hearing violate the Paperwork Reduction Act, and that requiring these "numerous filings'' is burdensome. Another commenter reads the proposed rule as requiring employers to keep records of compliance with the posting requirements.

   This requirement is not subject to the Paperwork Reduction Act because the Act exempts collections of information during the conduct of an administrative action, investigation or audit against specific individuals or entities. 5 CFR 1320.4(a)(2). Since OSHA does not participate in most cases, service of copies of pleadings and briefs is important to keep the Assistant Secretary and the Solicitor informed of cases in which the Department could have an interest.

   One commenter suggests that the regulations contain an express reference making the rules for the conduct of ALJ proceedings in 29 CFR Part 18 and the rules of evidence in that part applicable to the proceedings in these cases. This would replace the provision in the current § 24.5(e)(1) relating to "procedures, evidence and record.'' A petition for rulemaking has also been received making the same request.

   The regulations at 29 C.F.R. 24.5(e)(1) (renumbered as § 24.6(e)(1)) provide that formal rules of evidence shall not apply to these proceedings. The Department believes it is inappropriate to apply the rules of evidence at 29 C.F.R. Part 18 because whistleblowers often appear pro se . Furthermore, hearsay evidence is often appropriate in whistleblower cases, as there often are no relevant documents or witnesses to prove discriminatory intent. ALJs have the responsibility to determine the appropriate weight to be given such evidence. For these reasons the interests of determining all of the relevant facts is best served by not requiring strict evidentiary rules and no change is made in this provision.

   One commenter states that the regulations need to address the issue of voluntary dismissals, allowing unilateral dismissals only prior to a request for a hearing. After a request for a hearing a dismissal could only be granted if the respondent agreed to it or was compensated for costs, fees and expenses incurred in defending against the complaint up to that point.

   Although the regulations have no provision addressing voluntary dismissals, these proceedings are governed by the rules of the Office of Administrative Law Judges at 29 C.F.R. Part 18 unless these regulations provide to the contrary. Those rules in turn provide at § 18.1(a) that the Federal Rules of Civil Procedure ("FRCP'') apply in any instance where there is no explicit rule in Part 18 or the governing program's statute and regulations. Rule 41(a) of the FRCP allows voluntary, unilateral dismissal only up to the time the answer (or motion for summary judgment if earlier) is filed; thereafter the dismissal must be agreed to by the respondent or ordered by the court. The Department has applied Rule 41(a) to whistleblower proceedings. See, e.g. , Carter v. Los Alamos Nat'l Lab. , No. 93-CAA-10 (March 21, 1994); Ryan v. Pacific Gas & Electric Co. , No. 87-ERA-32 (Aug. 9, 1989); Nolder v. Raymond Kaiser Eng'rs, Inc. , No. 84-ERA-5 (June 28, 1985). The Department sees no reason why any other rule should apply to whistleblower proceedings. Therefore no amendment is necessary. There is no basis in the statute for requiring employees to pay fees and costs.

Section 24.7 Recommended Decision and Order

   Proposed § 24.7 (formerly § 24.6), concerning recommended decisions and orders, added the statutory requirement that interim relief be ordered in ERA

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cases once an administrative law judge issues a recommended decision that the complaint is meritorious. Proposed § 24.7 also provided with respect to all whistleblower cases that the recommended decision of the administrative law judge becomes the final order of the Secretary if no petition for review is filed.

   Two commenters challenge the constitutionality of the provision in § 24.7 for an award of compensatory damages upon a finding of a violation, urging that only a jury can make such an award.

   The regulation merely tracks the statutory provision that compensatory damages are available as a remedy. DOL, as the agency given the administrative authority to implement that statutory provision, has no authority to question the constitutionality of the statute. Furthermore, Congress has the authority to create a statutory cause of action analogous to a common-law legal claim and assign resolution to an administrative or other tribunal where jury proceedings are not available, provided the adjudication is of a public right--broadly defined to include "'a seemingly private right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.''' Granfinanciera, S.A. v. Nordberg , 492 U.S. 33, 51-55, 54 (1989), quoting from Thomas v. Union Carbide Agricultural Products Co. , 473 U.S. 568, 593-94 (1985) (Brennan, J., concurring).

   Three commenters believe that the 20 days allotted for issuance of the ALJ's decision and order is too short, taking into account such factors as the time necessary to prepare hearing transcripts and post- hearing briefs.

   The Department considers the 20-day time period necessary, like the other time periods in the regulations, because of the overall time period in the statute of 90 days from complaint to Secretary's decision. In a particular case, in accordance with current practice, the parties may agree to extend the period for a hearing or decision and order, and the regulations have been amended to so provide.

   Two commenters argue that the provision in § 24.7(c)(1) requiring interim relief for the employee upon a finding by an ALJ of a violation should include a hearing before the ALJ on the issue of interim relief. Reinstatement should only be available if a violation is proven.

   The purpose of interim relief, to provide a meritorious complainant with a speedy remedy, would be frustrated if a second hearing were required. Due process requirements will have been fully satisfied by the ALJ hearing already provided by the statute and regulations. oreover, the statute explicitly provides that a preliminary order of reinstatement (and other relief) shall be issued upon the conclusion of the ALJ hearing and issuance of a recommended decision that the complaint has merit. 42 U.S.C. 5851(b)(2)(A). Clearly nothing further is required. The regulation has been modified to make it clear that preliminary relief is required only if a violation of the Act has been established.

Section 24.8 Review by the Secretary (ARB)

   A new proposed § 24.8 detailed the procedure for seeking review by the Secretary of a decision of an Administrative Law Judge.

   Two commenters question whether review by the Secretary (now the ARB) of an ALJ's decision is a matter of right or is discretionary, and, if the latter, what criteria the Secretary would use in exercising that discretion. Clarification was also requested of the content of the petition for review.

   The intent of the regulations is that appeals be a matter of right, and not discretionary with the ARB. It is not required that the petition for review have any particular form.

   One commenter states that in order to avoid frivolous complaints and abusive litigation tactics, the regulations should provide for the Secretary's discretionary awarding of compensation against any losing party guilty of such actions.

   The whistleblower statutes do not provide for that form of relief. The relief described in § 24.8(d) as potentially available for successful complainants is the only relief provided by the statute.

Miscellaneous Provisions

   The proposed regulations removed § 24.7, concerning judicial review, and former § 24.8, concerning enforcement of decisions of the Secretary. These provisions vary from statute to statute among the whistleblower programs. Furthermore, the types of judicial review or enforcement actions which are available does not need to be the subject of rulemaking since they are prescribed by statute and concern judicial remedies.

   One commenter has expressed concern that removal of the former § 24.7(c), in which the Secretary is directed to prepare the record of a case in the event of judicial review, could interfere with the judicial review process.

   The Department is of the view that it is unnecessary to have a regulation describing the manner in which the record is filed with the court. When judicial review is sought in the court of appeals, the Department follows Rule 17(b) of the Federal Rules of Appellate Procedure, which provides a number of alternative procedures for filing the record.

   As one commenter suggested, and as discussed above, the provisions of former § 24.9, which were inadvertently omitted from the proposed rule, have been reinstated in the regulation.

Dates of Applicability

   Two commenters read the regulations as applicable to complaints filed under the ERA prior to the October 1992 ERA Amendments.

   Section 2902(i) of the 1992 Amendments, Public Law 102-486, provides:

   "The amendments made by this section shall apply to claims filed under section 211(b)(1) of the Energy Reorganization Act of 1974 (42 U.S.C. 5851(b)(1)) on or after the date of the enactment of this Act.''

   Furthermore, as discussed above, the delegation of authority to the Assistant Secretary for Occupational Safety and Health is effective only with respect to complaints received on or after February 3, 1997.

   In all other respects, the provisions of this part are applicable to actions taken on or after the effective date.

Executive Order 12866; Section 202 of the Unfunded Mandates Reform Act of 1995; Small Business Regulatory Enforcement Fairness Act; Executive Order 12875

   The Department has concluded that this rule is not a "significant regulatory action'' within the meaning of Executive Order 12866. Because it is procedural in nature, it will not: (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

[ Federal Register /Vol. 63, No. 26/Monday, February 9, 1998/Rules and Regulations 6621 ]

mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no regulatory impact analysis has been prepared. Similarly, because the rule is not economically significant, it is not a major rule within the meaning of Section 804(2) of the Small Business Regulatory Enforcement Fairness Act, and does not require a Section 202 statement under the Unfunded Mandates Reform Act of 1995. Finally, these regulations will not result in any increased costs to State, local or tribal governments and therefore are not subject to Executive Order 12875.

Regulatory Flexibility Analysis

   The Department has determined that the regulation will not have a significant economic impact on a substantial number of small entities. The regulation implements procedural revisions necessitated by statutory amendments and provisions which improve the procedures for speedier resolution of whistleblower complaints. The Department of Labor certified to this effect to the Chief Counsel for Advocacy of the Small Business Administration. Therefore, no regulatory flexibility analysis is required.

   Document Preparation: This document was prepared under the direction and control of Gregory R. Watchman, Acting Assistant Secretary, Occupational Safety and Health Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 24

   Administrative practice and procedure, Employment, Environmental protection, Investigations, Reporting and recordkeeping requirements, Whistleblowing.

   Signed at Washington, DC, this 30th day of January 1998.
Charles N. Jeffress,
Acting Assistant Secretary for Occupational Safety and Health .

   Accordingly, for the reasons set out in the preamble, and under the delegation of authority in Secretary's Order 6-96 (62 FR 111, Jan. 2, 1997, as corrected by 62 FR 8085, Feb. 21, 1997), 29 CFR part 24 is revised to read as follows:

THE ENERGY REORGANIZATION ACT (ERA) MAKES IT ILLEGAL FOR AN EMPLOYER COVERED BY THE ACT -- INCLUDING A LICENSEE OF THE NUCLEAR REGULATORY COMMISSION (NRC) OR AN AGREEMENT STATE, AN APPLICANT FOR A LICENSE, A CONTRACTOR OR SUBCONTRACTOR OF A LICENSEE OR APPLICANT AND A CONTRACTOR OR SUBCONTRACTOR OF THE DEPARTMENT OF ENERGY (DOE) UNDER THE ATOMIC ENERGY ACT (AEA) -- TO DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE IN TERMS OF COMPENSATION, CONDITIONS OR PRIVILEGES OF EMPLOYMENT BECAUSE THE EMPLOYEE OR ANY PERSON ACTING AT AN EMPLOYEE'S REQUEST PERFORMS A PROTECTED ACTIVITY.

RIGHT TO RAISE A SAFETY CONCERN: YOU ARE ENGAGED IN PROTECTED ACTIVITY WHEN YOU:
(1) NOTIFY YOUR EMPLOYER OF AN ALLEGED VIOLATION OF THE ERA OR THE AEA;
(2) REFUSE TO ENGAGE IN ANY PRACTICE MADE UNLAWFUL BY THE ERA OR THE AEA, IF YOU HAVE IDENTIFIED THE ALLEGED ILLEGALITY TO THE EMPLOYER;
(3) TESTIFY BEFORE CONGRESS OR AT ANY FEDERAL OR STATE PROCEEDING REGARDING ANY PROVISION OR PROPOSED PROVISION OF THE ERA OR THE AEA;
(4) COMMENCE OR CAUSE TO BE COMMENCED A PROCEEDING UNDER THE ERA, OR A PROCEEDING FOR THE ADMINISTRATION OR ENFORCEMENT OF ANY REQUIREMENT IMPOSED UNDER THE ERA; OR
(5) TESTIFY OR ARE ABOUT TO TESTIFY IN ANY SUCH PROCEEDING; OR
(6) ASSIST OR PARTICIPATE IN SUCH A PROCEEDING OR IN ANY OTHER ACTION TO CARRY OUT THE PURPOSES OF THE ERA OR THE AEA.

UNLAWFUL ACTS BY EMPLOYERS: IT IS UNLAWFUL FOR AN EMPLOYER TO INTIMIDATE, THREATEN, RESTRAIN, COERCE, BLACKLIST, DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE AGAINST ANY EMPLOYEE BECAUSE THE EMPLOYEE HAS ENGAGED IN PROTECTED ACTIVITY.

COMPLAINT: AN EMPLOYEE OR EMPLOYEE REPRESENTATIVE MAY FILE A COMPLAINT CHARGING DISCRIMINATION IN VIOLATION OF THE ERA WITHIN 180 DAYS OF THE DISCRIMINATORY ACTION, A COMPLAINT MUST BE IN WRITING AND SHOULD INCLUDE A FULL STATEMENT OF FACTS, INCLUDING THE PROTECTED ACTIVITY ENGAGED IN BY THE EMPLOYEE, KNOWLEDGE BY THE EMPLOYER OF THE PROTECTED ACTIVITY, AND THE BASIS FOR BELIEVING THAT THE ACTIVITY RESULTED IN DISCRIMINATION AGAINST THE EMPLOYEE BY THE EMPLOYER. A COMPLAINT MAY BE FILED IN PERSON OR BY MAIL AT THE NEAREST LOCAL OFFICE OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA), U.S. GOVERNMENT, DEPARTMENT OF LABOR, OR WITH THE OFFICE OF THE ASSISTANT SECRETARY, OSHA, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210.

ENFORCEMENT: OSHA WILL REVIEW THE COMPLAINT TO ENSURE THAT IT MAKES AN INITIAL SHOWING OF DISCRIMINATION. IF NOT, OR IF THE EMPLOYER PROVIDES CLEAR AND CONVINCING EVIDENCE THAT THERE WAS NO DISCRIMINATION, THERE WILL BE NO INVESTIGATION. IF THE REQUIRED SHOWING IS MADE, OSHA WILL NOTIFY THE EMPLOYER AND CONDUCT AN INVESTIGATION TO DETERMINE WHETHER A VIOLATION HAS OCCURRED. EITHER THE EMPLOYEE OR THE EMPLOYER MAY REQUEST A HEARING BEFORE AN ALJ.

RELIEF: IF DISCRIMINATION IS FOUND, THE EMPLOYER WILL BE REQUIRED TO PROVIDE APPROPRIATE RELIEF, INCLUDING REINSTATEMENT (EVEN FOR THE PERIOD BETWEEN THE ALJ DECISION AND APPEAL), BACK WAGES OR COMPENSATION FOR INJURY SUFFERED FROM THE DISCRIMINATION, AND ATTORNEY'S FEES AND COSTS.

CAUTION: THE PRECEDING PROTECTIONS AND REMEDIES ARE NOT AVAILABLE TO EMPLOYEES WHO ENGAGE IN DELIBERATE VIOLATIONS OF THE ERA OR THE AEA.

FOR ADDITIONAL INFORMATION: CONTACT THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. GOVERNMENT, DEPARTMENT OF LABOR (LISTED IN TELEPHONE DIRECTORIES), OR SEE THE DEPARTMENT OF LABOR'S WEB SITE AT: WWW.OSHA.GOV

EMPLOYERS ARE REQUIRED TO DISPLAY THIS POSTER WHERE EMPLOYEES CAN READILY SEE IT.

[FR Doc. 98-2922 Filed 2-6-98; 8:45 am]
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