81 FR 70607 - Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 81, Issue 198 (October 13, 2016)
Occupational Safety and Health Administration
Federal Register Volume 81, Issue 198 (October 13, 2016)
| Page Range | 70607-70626 | |
| FR Document | 2016-24559 |
[Federal Register Volume 81, Number 198 (Thursday, October 13, 2016)] [Rules and Regulations] [Pages 70607-70626] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-24559] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1984 [Docket Number: OSHA-2011-0193] RIN 1218-AC79 Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act AGENCY: Occupational Safety and Health Administration, Labor. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This document provides the final text of regulations governing employee protection (retaliation or whistleblower) claims under section 1558 of the Affordable Care Act, which added section 18C to the Fair Labor Standards Act to provide protections to employees who may have been subject to retaliation for seeking assistance under certain affordability assistance provisions (for example, health insurance premium tax credits) or for reporting potential violations of the Affordable Care Act's consumer protections (for example, the prohibition on rescissions). An interim final rule (IFR) governing these provisions and request for comments was published in the Federal Register on February 27, 2013. Thirteen comments were received; eleven were responsive to the IFR. This rule responds to those comments and establishes the final procedures and time frames for the handling of retaliation complaints under section 18C, including procedures and time frames for employee complaints to the Occupational Safety and Health Administration (OSHA), investigations by OSHA, appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (ARB) (acting on behalf of the Secretary of Labor), and judicial review of the Secretary of Labor's (Secretary's) final decision. It also sets forth the Secretary's interpretations of the Affordable Care Act whistleblower provision on certain matters. DATES: This final rule is effective on October 13, 2016. FOR FURTHER INFORMATION CONTACT: Anh-Viet Ly, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email: [email protected]. This is not a toll-free number. [[Page 70608]] This Federal Register publication is available in alternative formats. The alternative formats available are: Large print, electronic file on computer disk (Word Perfect, ASCII, Mates with Duxbury Braille System), and audiotape. SUPPLEMENTARY INFORMATION: I. Background The Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119, was signed into law on March 23, 2010 and was amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, 124 Stat. 1029, that was signed into law on March 30, 2010. The terms ``Affordable Care Act,'' or ``Act,'' or ``ACA'' are used in this rulemaking to refer to the final, amended version of the law. Section 1558 of the Affordable Care Act amended the Fair Labor Standards Act (FLSA) to add section 18C, 29 U.S.C. 218C (section 18C), which provides protection to employees against retaliation by an employer for engaging in certain protected activities. Under section 18C, an employer may not retaliate against an employee for receiving a credit under section 36B of the Internal Revenue Code of 1986 (Code) or cost-sharing reductions (referred to as a ``subsidy'' in section 18C) under the Affordable Care Act. In general, section 36B of the Code allows certain individuals to receive the premium tax credit for coverage under a qualified health plan through an Exchange if they are not eligible for health coverage (other than in the individual market) including an offer from their employer of affordable coverage that provides minimum value and if their household income is between 100% and 400% of the federal poverty line. In addition, individuals eligible for the premium tax credit may also qualify for cost-sharing reductions if certain other qualifications are met. Individuals may qualify for advance payment of the premium tax credit (APTC), which is payment during the year to an individual's insurance provider that pays for part or all of the premiums for a qualified health plan through the Exchange covering the individual and his or her family. Eligibility for APTC is based on the Exchange's estimate of the premium tax credit to which the individual will be entitled on his or her tax return. Filing of an individual's federal income tax return is the process through which an individual claims the premium tax credit, and if APTC was paid for the individual or a member of his or her family, it is also the process through which the individual must reconcile the APTC with the premium tax credit. Since 2015, under section 4980H of the Code, certain employers (referred to as applicable large employers) must either offer health coverage that is affordable and that provides minimum value to their full-time employees (and offer coverage to their dependents), or be subject to an assessable payment (referred to as an ``employer shared responsibility payment'') payable to the IRS if any full-time employee receives the premium tax credit for coverage through an Exchange. Thus, the relationship between the employee's receipt of the premium tax credit and the potential employer shared responsibility payment imposed on an applicable large employer could create an incentive for an employer to retaliate against an employee. Section 18C protects employees against such retaliation. Section 18C also protects employees against retaliation because they provided or are about to provide to their employer, the federal government or the attorney general of a state, information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of or amendment made by title I of the Affordable Care Act; testified or are about to testify in a proceeding concerning such violation; assisted or participated, or are about to assist or participate, in such a proceeding; or objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any provision of title I of the Act (or amendment), or any order, rule, regulation, standard, or ban under title I of the Act (or amendment). Among other provisions, title I of the Affordable Care Act includes a range of health insurance market reforms such as: The prohibition on lifetime and annual dollar limits on essential health benefits, the requirement for non-grandfathered plans to cover certain recommended preventive services with no cost sharing, and a prohibition on pre-existing condition exclusions. This final rule revises the procedures for the handling of whistleblower complaints under section 18C of the FLSA and sets forth the Secretary's interpretations of the ACA whistleblower provision on certain matters. To the extent possible within the bounds of applicable statutory language, these revised rules are designed to be consistent with the procedures applied to claims under other whistleblower statutes administered by OSHA. Responsibility for receiving and investigating complaints under section 18C has been delegated to the Assistant Secretary for Occupational Safety and Health (Assistant Secretary). Secretary of Labor's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by ALJs are decided by the ARB. Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012). II. Summary of Statutory Procedures Section 18C(b)(1) adopts the procedures, notifications, burdens of proof, remedies, and statutes of limitation in the Consumer Product Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Accordingly, a covered employee (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 section 18C (respondent) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the complainant and respondent an opportunity to submit a response and meet with the investigator to present statements from witnesses, and conduct an investigation. Section 18C, through the incorporation of CPSIA, provides that the Secretary may conduct an investigation only if the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged in the complaint and the respondent has not demonstrated, through clear and convincing evidence, that the employer would have taken the same adverse action in the absence of that activity. (See Sec. 1984.104 for a summary of the investigative 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 that there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of that finding, along with a preliminary order that requires the respondent to, where appropriate: Take [[Page 70609]] affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. The complainant and the respondent then have 30 days after the date of the Secretary's notification in which to file objections to the findings and/or preliminary order and request a hearing before an ALJ. The filing of objections under section 18C of the FLSA will stay any remedy in the preliminary order except for preliminary reinstatement. If a hearing before an ALJ is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review. If a hearing before an ALJ is held, the statute requires the hearing to be conducted ``expeditiously.'' The Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief, or deny the complaint. Until the Secretary's final order is issued, the Secretary, the complainant, and the respondent may enter into a settlement agreement that terminates the proceeding. Where the Secretary has determined that a violation has occurred, the Secretary will order the respondent to, where appropriate: Take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary's final order may file an appeal with the United States Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation. Section 18C permits the employee to seek de novo review of the complaint by a United States District Court in the event that the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination. The court will have jurisdiction over the action without regard to the amount in controversy, and the case will be tried before a jury at the request of either party. Finally, section 18C(b)(2) of the FLSA provides that nothing in section 18C 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, and the rights and remedies in section 18C may not be waived by any agreement, policy, form, or condition of employment. III. Summary and Discussion of Regulatory Provisions On February 27, 2013, OSHA published in the Federal Register an IFR promulgating rules governing the employee protection provisions of section 1558 of the Affordable Care Act, which added section 18C of the FLSA. 78 FR 13222. OSHA included a request for public comment on the interim final rule by April 29, 2013. Seven organizations and four individuals filed responsive comments with OSHA within the public comment period. OSHA received comments from Tate and Renner (Renner); the Blue Cross Blue Shield Association (BCBS); the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); America's Health Insurance Plans (AHIP); the Service Employees International Union (SEIU); the National Federation of Independent Business (NFIB); the United States Chamber of Commerce (Chamber); Thomas O'Grady; DeAnna Beckner; J.I.M. Choate; and N. Menold. OSHA has reviewed and considered the comments and now adopts this final rule with minor revisions. The following discussion addresses the comments, OSHA's responses, and any other changes to the provisions of the rule. The provisions in the IFR are adopted and continued in this final rule, unless otherwise noted below. General Comments Comments Related to Section 2706(b) of the Public Health Service Act As OSHA explained in the preamble to the IFR (78 FR 13223), section 18C became effective on the date the health care law was enacted, March 23, 2010. The Affordable Care Act also added section 2706(b) to the Public Health Service Act (PHSA), 42 U.S.C. 300gg et seq., as amended by section 1201 of the Affordable Care Act, and section 2706 of the PHSA first became effective for plan years beginning on or after January 1, 2014. The Affordable Care Act added Code section 9815(a) and Employee Retirement Income Security Act (ERISA) section 715(a) to incorporate the provisions of part A of title XXVII of the PHS Act (which includes PHSA section 2706) into the Code and ERISA. Accordingly, PHSA section 2706 is subject to shared interpretive jurisdiction by the Departments of Health and Human Services (HHS), the Treasury (Treasury), and Labor (DOL). Section 2706 of the PHSA is titled ``Non-Discrimination in Health Care'' and provides, in relevant part: ``(b) INDIVIDUALS.--The provisions of section 1558 of the Patient Protection and Affordable Care Act (relating to non-discrimination) shall apply with respect to a group health plan or health insurance issuer offering group or individual health insurance coverage.'' Four commenters (BCBS, AHIP, the Chamber, and AFL-CIO) commented on the discussion in the IFR of the relationship between section 18C and section 2706(b) of the PHSA. OSHA has reviewed these comments and referred them to HHS, Treasury and the DOL's Employee Benefits Security Administration, which share interpretive jurisdiction over section 2706. The IFR included a discussion on PHSA section 2706(b) in the preamble to the rule solely to put the public on notice that section PHSA section 2706(b) includes a reference to section 1558 of the Affordable Care Act. However, the IFR did not include any regulatory provisions aimed at implementing PHSA section 2706(b), nor do these final regulations. Accordingly, interpretive guidance regarding PHSA section 2706(b) is outside to the scope of these regulations. Comments Regarding OSHA's Compliance With Notice and Comment Rulemaking Procedures NFIB commented that OSHA should re-issue the rule as a Notice of Proposed Rulemaking (NPRM), complete with an initial regulatory flexibility analysis and that OSHA should also examine whether a Small Business Advocacy Review panel is necessary. The Chamber likewise commented that OSHA has not sufficiently demonstrated that this rulemaking is interpretative and procedural and should have provided an economic analysis under Executive Orders 12866 and 13563, and an initial regulatory flexibility analysis under the Regulatory Flexibility Act (RFA). OSHA disagrees, and as explained below, OSHA continues to believe that this rule is procedural and [[Page 70610]] interpretative, and that it has complied with the applicable requirements for promulgating this rule. Other General Comments OSHA received additional general comments from several commenters. Menold expressed general support for the IFR. Choate commented that the final rule should use the word ``judge'' instead of ``ALJ'' when referring to administrative law judges. After consideration, the use of the abbreviation ``ALJ'' has been retained in the final rule as consistent with agency practice. NFIB expressed general concern that section 18C would lead to an increase in whistleblower complaints that would impair small businesses and expressed the hope that OSHA would work to ensure that its procedures allow an opportunity at the outset for the small business and the employee to resolve a complaint without having to go through a formal investigation and adjudication. Beckner supported the ``implementation of `economic reinstatement' or `front pay' instead of preliminary reinstatement in situations w[h]ere the employer and employee relationship has deteriorated beyond repair'' and the definition of employee to include former employees and applicants. She also commented that the period of time that must transpire prior to a complainant filing for de novo review in district court is too long, as did O'Grady who suggested that the alternative procedural time periods that precede an employee's right to file a complaint to federal district court should be streamlined in the interest of the complainant who may be in a ``precarious situation'' during those times. He also commented that if the process cannot be streamlined, then once OSHA makes an initial determination that there is a valid complaint the employee should receive an injunction barring further retaliation. SEIU and the AFL-CIO commented that the rules should include specific provisions requiring employers to post notices regarding whistleblower rights under section 18C. Finally, Renner noted that section 1558 of the ACA, like other whistleblower laws, is a remedial law and should be construed and applied to further its remedial purposes. Renner also noted there may be some overlap between the protections provided in ERISA section 510 and FLSA section 18C and asked that the Department's comments on the final rule address this issue. OSHA has not made any changes to the rule in response to these comments. The 90-day and 210-day time periods for filing a complaint in district court are established in the statute, and OSHA cannot change them by regulation. 15 U.S.C. 2087(b)(4). With regard to O'Grady's proposal for injunctive relief, OSHA notes that the statute already provides for the type of relief requested. If it finds reasonable cause to believe that retaliation occurred, the statute requires OSHA to issue findings and an order containing relief including, where appropriate, reinstatement. 15 U.S.C. 2087(b)(2). Under the statute, OSHA's order of reinstatement is not stayed by the employer's request for a hearing. Id. In addition, OSHA notes that it is unlawful for an employer to engage in further retaliation against employees who pursue whistleblower complaints under the ACA. See Benjamin v. Citationshares Mgmt., ARB No. 12-029, 2013 WL 6385831, at *6 (ARB Nov. 5, 2013) (noting ``an employee engages in protected activity if he attempts to provide information of retaliation that violates [a whistleblower statute]'' and holding that employee's recording of information in support of his retaliation claim was protected); Diaz-Robianas v. Fla. Power & Light Co., DOL No. 92-ERA-10, 1996 WL 171408, at *5 (Off. Admin. App. Jan. 19, 1996) (noting under prior version of Energy Reorganization Act that the statute ``requires employers to refrain from unlawfully motivated employment discrimination, and a complaint that an employer has violated this requirement is protected''); McClendon v. Hewlett Packard, Inc., 2006-SOX-00029, 2006 WL 6577175 at *76 (ALJ Oct. 5, 2006) (holding that filing a Sarbanes-Oxley Act whistleblower complaint is in itself a protected activity); cf. Young v. CSX Transp., Inc., 42 F. Supp. 3d 388, 2014 WL 4367461, at *5 (N.D.NY. Sept. 4, 2014) (acknowledging employer's concession that filing a retaliation claim with OSHA is protected under the Federal Railroad Safety Act). If an employee believes an employer is retaliating against him for pursuing an ACA whistleblower complaint, the employee should contact OSHA. With regard to NFIB's comments regarding the impact on small employers and the opportunities available for early resolution of whistleblower complaints, OSHA agrees that resolution of whistleblower complaints as early in the investigation process as possible is often the best outcome for both parties. Accordingly, OSHA's Whistleblower Investigations Manual encourages whistleblower investigators to actively assist parties in reaching an agreement, where possible. See OSHA Whistleblower Investigations Manual, at 6-12 (Jan. 28, 2016), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-007.pdf. Additionally, in August 2015, OSHA issued a directive allowing its regional offices to implement Early Resolution Programs in which, at the parties' request, OSHA would make a neutral ADR coordinator, unconnected with the investigation, available to assist the parties in achieving an early resolution to the whistleblower case either upon the filing of the whistleblower complaint or at any time up to the completion of OSHA's investigation. Alternative Dispute Resolution (ADR) Processes for Whistleblower Protection Program (Aug. 18, 2015), available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-006.pdf. With respect to SEIU and AFL-CIO's comment that OSHA should require employers to post notices regarding section 18C's protections, OSHA is not adding such a requirement to these rules. However, OSHA notes that posting of a notice regarding whistleblower rights is one of the common non-monetary remedies that OSHA orders in meritorious whistleblower cases. OSHA believes that such notices can play a significant role in ameliorating the chilling effect that retaliation has on employees who might otherwise report violations of the law. Additionally, OSHA has worked with other agencies that implement the Affordable Care Act to ensure that information about the whistleblower provision is included in notices and public information that those agencies provide to employees and employers. Finally, OSHA generally agrees with Renner's observation that section 1558 of the ACA, like other whistleblower laws, is a remedial law and should be construed and applied to further its remedial purposes. With regard to Renner's comment regarding the potential overlap between ERISA section 510 and FLSA section 18C, OSHA notes that Renner is correct that some complainants may have claims under both ERISA section 510 and FLSA section 18C. Section 18C's whistleblower protections do not replace any protections that a whistleblower may have under ERISA section 510. Whistleblowers may bring claims under either or both statutes if their whistleblowing is protected under both. However, in order to pursue a claim under section 18C either in district court or before the Department of Labor (DOL), the complainant must [[Page 70611]] file a complaint with OSHA within 180 days of the alleged adverse action. See 29 CFR 1984.103(d). Subpart A--Complaints, Investigations, Findings and Preliminary Orders Section 1984.100 Purpose and Scope This section describes the purpose and scope of the regulations implementing FLSA section 18C and provides an overview of the procedures covered by these regulations. OSHA has added a statement in subparagraph (b) noting that these rules set forth the Secretary's interpretations of section 18C on certain statutory issues. AFL-CIO commented that OSHA should add a discussion of PHSA section 2706(b) to this section. However for the reasons previously explained, OSHA declines to add such a discussion. Section 1984.101 Definitions This section includes general definitions applicable to FLSA section 18C. The definitions of the terms ``employer,'' ``employee,'' and ``person'' from section 3 of the FLSA, 29 U.S.C. 203, apply to these rules and are included here. Consistent with the Secretary's interpretation of the term ``employee'' in the other whistleblower statutes administered by OSHA \1\ and with the Secretary's interpretation of the term ``employee'' under the anti-retaliation provision found at section 15(a)(3) of the FLSA, 29 U.S.C. 215(a)(3),\2\ the definition of the term ``employee'' in section 1984.101 also includes former employees and applicants for employment. This interpretation is supported by section 18C's plain language which prohibits retaliation against ``any employee'' and provides that ``[a]n employee who believes that he or she has been discharged or otherwise discriminated against by any employer in violation of this section'' may file a complaint with the Secretary of Labor, (emphasis added). Section 18C's broad protection of ``any employee'' from retaliation and provision of a cause of action against ``any employer'' for retaliation makes clear that the parties need not have a current employment relationship. Section 18C's broad protections, like the protections in section 15(a)(3), contrast with the narrower protections of sections 6 and 7 of the FLSA. Sections 6 and 7 provide respectively that an employer must pay at least the minimum wage to ``each of his employees'' and must pay overtime to ``any of his employees,'' and thus require a current employment relationship. See 29 U.S.C. 206(a) and (b), 29 U.S.C. 207(a)(1) and (2). Congress chose to use the broad term ``any'' to modify employee and employer in sections 18C(a) and (b), rather than providing more restrictively that, for example, ``no employer shall discharge or in any manner discriminate against any of his employees'' or ``an employee who believes that he or she has been discharged or otherwise discriminated against by his employer'' may file a complaint with the Secretary of Labor. The Supreme Court has made clear that ``any'' has an expansive meaning that does not limit the word it modifies. See, e.g., Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1332 (2011) (noting that the use of ``any'' in the phrase ``filed any complaint'' in section 15(a)(3) of the FLSA ``suggests a broad interpretation that would include an oral complaint''); U.S. v. Gonzales, 520 U.S. 1, 5 (1997) (``any'' has an expansive meaning, that is, ``one or some indiscriminately of whatever kind'') (internal citations omitted). In addition, the explicit inclusion of reinstatement and preliminary reinstatement (both of which can only be awarded to former employees) among the remedies available for whistleblowers under section 18C, which incorporates 15 U.S.C. 2087(b), confirms that the complainant and the respondent need not have a current employment relationship in order for the complainant to have a claim under section 18C. See Dellinger v. Science Applications Int'l Corp., 649 F.3d at 230 n.2 (section 15(a)(3) of the FLSA protects former employees); cf. Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (term ``employees'' in anti-retaliation provision of Title VII of the Civil Rights Act of 1964 includes former employees). --------------------------------------------------------------------------- \1\ See, e.g., 29 CFR 1980.101(g) (defining employee to include former employees and applicants under the whistleblower provisions in the Sarbanes-Oxley Act); 29 CFR 1978.101 (Surface Transportation Assistance Act); 29 CFR 1981.101 (Pipeline Safety Improvement Act); 29 CFR 1982.101(d) (Federal Railroad Safety Act and the National Transit Systems Security Act); 29 CFR 1983.101(h) (Consumer Product Safety Improvement Act). \2\ See Brief for the Secretary of Labor and the Equal Employment Opportunity Commission as Amicus Curiae, Dellinger v. Science Applications Int'l Corp., No. 10-1499 (4th Cir. Oct. 15, 2010) (explaining that the phrase ``any employee'' in section 15(a)(3) of the FLSA does not limit an individual's retaliation claims to her current employer, but rather extends protection to prospective employees from retaliation for engaging in protected activity), and Brief of the Secretary of Labor and Equal Employment Opportunity Commission as Amicus Curiae, Dellinger v. Science Applications Int'l Corp., No. 10-1499 (4th Cir. Sept. 9, 2011) (same); but see Dellinger v. Science Applications Int'l Corp., 649 F.3d 226, 229-31 & n.2 (4th Cir. 2011) (accepting that former employees are protected from retaliation under section 15(a)(3) of the FLSA but holding that applicants for employment are not). --------------------------------------------------------------------------- No comments were made on this section, other than those discussed in the general comments suggesting additional definitions. OSHA made a minor clarification to the definition of ``respondent'' and added definitions of Exchange and advance payments of the premium tax credit or APTC but has made no other substantive changes to this section. Section 1984.102 Obligations and Prohibited Acts This section describes the activities that are protected under section 18C of the FLSA, and the conduct that is prohibited in response to any protected activities. Section 18C(a)(1) protects any employee from retaliation because the employee has ``received a credit under section 36B of the Internal Revenue Code of 1986 or a subsidy under section 1402 of this Act.'' The reference to ``a subsidy under section 1402 of this Act'' in section 18C(a)(1) refers to receipt of a cost- sharing reduction under the Affordable Care Act. Under section 18C(a)(2), an employer may not retaliate against an employee because the employee ``provided, caused to be provided, or is about to provide or cause to be provided to the employer, the federal government, or the attorney general of a state information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of this title (or an amendment made by this title).'' Section 18C also protects employees who testify, assist or participate in proceedings concerning such violations or are about to do so. Sections 18C(a)(3) and (4), 29 U.S.C. 218C(a)(3) and (4). Finally, section 18C(a)(5) prohibits retaliation because an employee ``objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this title (or amendment), or any order, rule, regulation, standard, or ban under this title (or amendment).'' References to ``this title'' in section 18C(a)(2) and (5) refer to title I of the Affordable Care Act. In order to have a ``reasonable belief'' under sections 18C(a)(2) and (5) of the FLSA, a complainant must have both a subjective, good faith belief and an objectively reasonable belief that the complained- of conduct violates one of the enumerated categories of law. See Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132 (10th Cir. 2013) (discussing the reasonable belief standard under analogous [[Page 70612]] language in the Sarbanes-Oxley Act whistleblower provision, 18 U.S.C. 1514A); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013) (same); Sylvester v. Parexel Int'l LLC, ARB No. 07-123, 2011 WL 2165854, at *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 complained of violated the relevant law. See Sylvester, 2011 WL 2165854, at *12 (citing Harp v. Charter Commc'ns, 558 F.3d 722, 723 (7th Cir. 2009)); Day v. Staples, Inc., 555 F.3d 42, 54 n.10 (1st Cir. 2009) (quoting Welch v. Chao, 536 F.3d 269, 277 n.4 (4th Cir. 2008) (``Subjective reasonableness requires that the employee `actually believed the conduct complained of constituted a violation of pertinent law.'''). The objective reasonableness of a complainant's belief ``is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.'' Rhinehimer v. U.S. Bancorp Investments, Inc., 787 F.3d 797, 811 (6th Cir. 2015) (internal citations and quotations omitted); Sylvester, 2011 WL 2165854, at *12. However, the complainant need not show that the conduct complained of constituted an actual violation of law. Pursuant to this standard, an employee's whistleblower activity is protected when it is based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred or is likely to occur. See Sylvester, 2011 WL 2165854, at *13 (citing Welch, 536 F.3d at 277); Allen v. Admin. Review Bd., 514 F.3d 468, 476-77 (5th Cir. 2008); Melendez v. Exxon Chemicals Americas, ARB No. 96-051, slip op. at 21 (ARB July 14, 2000) (``It is also well established that the protection afforded whistleblowers who raise concerns regarding statutory violations is contingent on meeting the aforementioned `reasonable belief' standard rather than proving that actual violations have occurred.''). OSHA received several comments on this section of the interim final rule. For the reasons discussed below, the only change OSHA has made to this section is to revise the section to clarify that, under section 18C(a)(1), an employee has ``received'' a premium tax credit or cost- sharing reduction not only when a premium tax credit is allowed on the individual's tax return but also when an Exchange finds the employee eligible for APTC or for a cost-sharing reduction. At that point, the employee may apply financial assistance to reduce his or her share of the premium cost for coverage purchased through the Exchange, and the prices that the Exchange provides to the employee for plans take into account the employee's eligibility for such assistance. AFL-CIO and SEIU commented that OSHA should clarify that FLSA section 18C(a)(1) protects those who take the preliminary steps, such as gathering information, that are needed to apply for health insurance coverage on an Exchange and to apply for APTC. These commenters were particularly concerned about protecting employees who ask their employers about the health care coverage offered by their employers. These commenters noted that to apply for APTC for health insurance on an Exchange, individuals must provide certain information about their available employer- sponsored insurance options, if any. HHS has developed a form for employees to use in gathering information about any available employer- sponsored insurance options and this form instructs employees to get the information that they need from their employer. As SEIU explained ``[a]s currently proposed, the system puts the burden on individuals to seek coverage information from their employer . . . in order to complete the exchange application. Because of this, it is imperative that the protection against retaliation extend to any preliminary actions taken to receive the tax credit.'' OSHA agrees that these commenters raise compelling concerns regarding the potential for retaliation against employees who seek information from their employer that they need to receive APTC when they purchase health insurance through an Exchange. OSHA declines to change the text of the rule, which generally mirrors the statutory language, in response to these comments. However, OSHA believes that, in certain circumstances, the existing case law under the other whistleblower protection statutes that OSHA administers supports protection for employees who seek information from their employer regarding employer-sponsored health coverage in order to receive APTC for health coverage through an Exchange. When an employer believes that an employee has received a premium tax credit or cost-sharing reduction and takes action based on that belief, the employer's retaliatory motive is the same whether it arises from an employee's inquiry regarding employer-provided coverage in anticipation of applying for APTC or a cost-sharing reduction through the Exchange, or whether it arises once the applicable Exchange notifies the employer that the employee has qualified for a APTC or a cost-sharing reduction through the Exchange. OSHA's regulations under section 18C and case law under other anti-retaliation statutes make clear that an employer may not retaliate against an employee when the employer knows or suspects that the employee has engaged in activity protected by the statute. See 29 CFR 1984.104(e); see also Reich v. Hoy Shoe, Inc., 32 F.3d 361, 368 (8th Cir. 1994) (noting under section 11(c) of the Occupational Safety and Health Act (11(c)) that ``[i] t seems clear to this Court that an employer that retaliates against an employee because of the employer's suspicion or belief that the employee filed an OSHA complaint has as surely committed a violation of Sec. 11(c) as an employer that fires an employee because the employer knows that the employee filed an OSHA complaint''); Saffels v. Rice, 40 F.3d 1546, 1549 (8th Cir. 1994) (retaliation is unlawful under the FLSA if based on an employer's mistaken belief that employees engaged in FLSA-protected activity); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir. 1987) (same). Similarly, an employer retaliates against an employee when the employer threatens to take action if the employee engages in activity protected under section 18C. See 29 CFR 1984.102(a) (defining retaliation to include threats and intimidation). Indeed, courts have long recognized that acts taken in anticipation of an employee's protected activity to dissuade such activity can be actionable under the anti-retaliation provisions of many statutes. See, e.g., Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993) (noting under Title VII's anti-retaliation provision that ``[a]ction taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact''); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 411 (9th Cir. 1993) (noting that anticipatory employer action that ``discourages the whistle blower before the whistle is blown'' would violate ERISA anti-retaliation statute, even though the employee has not yet filed any formal complaint); Perez v. Fatima/Zahra, Inc., No. 14-2337, 2014 WL 2154092 (N.D. Cal. May 22, 2014) (issuing temporary restraining order against employer who threatened employees that they would be fired for talking to investigators); Solis v. SCA Restaurant Corp., 938 F. Supp. 2d 380, 389 (E.D.N.Y. 2013) (finding retaliation where employer threatened employees with termination in anticipation of their testimony for Secretary of Labor). Thus, OSHA believes that an employee's inquiry to his or her employer to gather the information necessary to apply for APTC for [[Page 70613]] coverage on the Exchange may trigger protection under section 18C if the employee can show that either the employer's belief that the employee had received a premium tax credit, or the employer's desire to deter the employee from taking any further action that would result in the employee's receiving a premium tax credit, contributed to the employer's action against the employee. Renner commented that the regulations should clarify that an employer's decision to reduce an employee's hours of work to evade application of the Affordable Care Act is unlawful under FLSA section 18C noting that ``the reduction of hours directly reduces the employee's wages and is materially adverse.'' As explained earlier in this preamble, under section 4980H of the Code, applicable large employers must either offer health coverage that is affordable and that provides minimum value to their full-time employees (and offer coverage to their dependents), or be subject to assessment of an employer shared responsibility payment by the IRS if at least one full-time employee receives the premium tax credit. In general, for purposes of section 4980H of the Code, a full-time employee is an employee with an average of at least 30 hours of service per week. To the extent that Renner's comment implies that the whistleblower protections apply if an employer reduces an employee's hours of service to avoid or reduce liability under section 4980H of the Code, OSHA disagrees because section 4980H of the Code does not prohibit an employer from reducing an employee's hours of service in order to avoid a potential employer shared responsibility payment. However, to the extent that Renner is commenting that reducing work hours in retaliation for activity protected under section 18C is unlawful, OSHA agrees. For instance, if an employer reduces the hours of an employee that the employer knows or suspects of receiving a premium tax credit or subsidy, the employer's actions may violate section 18C if the employee's receipt of the premium tax credit or subsidy was a contributing factor in the employer's decision to reduce the hours, and the employer is unable to show by clear and convincing evidence that it would have taken the same action in the absence of that protected activity. See 29 CFR 1984.104(e) (explaining the burdens of proof in Affordable Care Act whistleblower cases); see also 29 U.S.C. 218C(b)(1) (incorporating the burdens of proof in 15 U.S.C. 2087(b)(2)(B)). In addition, OSHA notes that an employer violates section 18C if it threatens employees with reductions in hours in order to dissuade them from applying for APTC for health insurance on an Exchange. See, e.g., Sauers, 1 F.3d at 1128. OSHA declines to change the rule in response to Renner's comment because OSHA believes that this issue is adequately addressed in the case law under analogous anti-retaliation provisions and the rule has been drafted to be consistent with OSHA's rules under other whistleblower-protection statutes. The Chamber commented that OSHA should limit the definition of intimidation as a form of retaliation asserting that the term ``intimidation'' left undefined is overly broad and that ``[t]he conduct that is considered intimidating should not be actionable unless it results in a tangible adverse employment action, such as demotion, negative performance review, failure to promote, assignment of undesirable job duties, a pattern of harassment, and termination. The Chamber further commented that equitable treatment of the different parties requires OSHA to apply a reasonable belief standard to respondents as well as to complainants. BCBS raised similar concerns regarding the IFR, commenting that OSHA should apply the final rule keeping in mind the unique challenges of implementing the Affordable Care Act, which may make it difficult to determine whether an employer's or issuer's actions are justified by the Affordable Care Act guidance in effect at the time. After consideration, OSHA declines to amend the rule in response to the Chamber and BCBS's comments. With regard to the Chamber's suggestion that OSHA adopt a reasonable belief requirement for respondents as well as complainants and BCBS's comment that an employer or issuer's actions may be justified based on the Affordable Care Act guidance in effect at the time, OSHA notes that the statutory language includes no ``reasonable belief'' standard for employers. However, OSHA believes that case law under analogous statutes adequately addresses these concerns. For example, the fact that an employer is following the ACA guidance available at the time that an employee blows the whistle may impact whether the employee can show that he had a reasonable belief that the employer was violating the law. Similarly, if an employer takes an action against an employee based on a reasonable, but mistaken, belief of misconduct or another circumstance unrelated to protected activity, the employee's subsequent whistleblower complaint may fail. See Ledure v. BNSF Rwy. Co., ARB No. 13-044, 2015 WL 4071574, at *6 (ARB Jun. 2, 2015) (affirming ALJ's conclusion that retaliation did not occur where employer's refusal to allow employee to return to work was based on reasonable, but mistaken, belief that employee was not medically qualified to return to work and not on protected whistleblowing). With regard to the Chamber's comment that the rule should be changed to limit the definition of ``intimidation,'' OSHA believes that the circumstances in which intimidation constitutes an adverse action under section 18C are adequately addressed by case law under the Department's other whistleblower statutes. While intimidation may be linked with some other form of adverse action, intimidation that is more than trivial may, standing alone, qualify as adverse action. The phrase ``terms, conditions, or other privileges of employment'' does not indicate that actionable adverse action is limited to ``economic'' or ``tangible'' conditions of employment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (interpreting similar language in Title VII of the Civil Rights Act of 1964); see also Menendez v. Halliburton, Inc., ARB Nos. 09-002, 09-003, 2011 WL 4439090 at *11-12 (Sept. 13, 2011), aff'd, Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d 254 (5th Cir. 2014) (interpreting similar language in the Sarbanes- Oxley Act). Rather, adverse action is action that a reasonable employee would find ``materially adverse,'' that is, the action is more than trivial. Specifically, the evidence must show that the action at issue could well have dissuaded a reasonable worker from engaging in protected activity. See Burlington Northern & Santa Fe R. R. Co. v. White, 548, U.S. 53, 68 (2006); Halliburton, 771 F.3d at 261-62 (affirming ARB's finding of adverse action that was not a tangible employment action); Williams v. American Airlines, ARB No. 09-018, 2010 WL 5535815 at *6-8 (Dec. 29, 2010) (discussing adverse action under the Department's whistleblower statutes). Thus, under this case law, unlawful retaliation would include intimidating an employee for engaging in protected activity when the intimidation would dissuade a reasonable employee from engaging in protected activity. Section 1984.103 Filing of Retaliation Complaint This section explains the requirements for filing a retaliation [[Page 70614]] complaint under section 18C. 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. E.E.O.C. v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001). However, 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 section 18C complaint equitably tolled if the complainant mistakenly files a complaint with another agency instead of OSHA within 180 days after becoming aware of the alleged violation. OSHA has revised this section of the rule to note this example of when the time for filling a complaint would be equitably tolled. Complaints filed under section 18C of the FLSA need not be in any particular form. They may be either oral or in writing. When a complaint is made orally, OSHA will put the complaint in writing. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. With the consent of the employee, complaints may be filed by any person on the employee's behalf. OSHA notes that a complaint of retaliation filed with OSHA under the Affordable Care Act is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts OSHA to the existence of the alleged retaliation and the complainant's desire that OSHA investigate the complaint. Upon the filing of a complaint, OSHA is to determine whether ``the complaint, supplemented as appropriate by interviews of the complainant'' alleges ``the existence of facts and evidence to make a prima facie showing.'' 29 CFR 1984.104(e). As explained in Sec. 1984.104(e), if the complaint, supplemented as appropriate, contains a prima facie showing, and the respondent does not show clear and convincing evidence that it would have taken the same action in the absence of the alleged protected activity, OSHA conducts an investigation to determine whether there is reasonable cause to believe that retaliation has occurred. See 15 U.S.C. 2087(b)(2); 29 CFR 1984.104(e). No comments were received on this section of the IFR. However, in addition to adding the example noted above of when the time for filing a complaint might be tolled, OSHA changed the term ``email'' in paragraph (d) to ``electronic communication transmittal'' because OSHA has published an on-line complaint form on its Web site, http://www.whistleblowers.gov/complaint_page.html . Section 1984.104 Investigation This section describes the procedures that apply to the investigation of complaints under section 18C. Paragraph (a) of this section outlines the procedures for notifying the parties and appropriate federal agencies of the complaint and notifying the respondent of its rights under these regulations. Paragraph (b) describes the procedures for the respondent to submit its response to the complaint. Paragraph (c) describes the sharing of information submitted to OSHA during the investigation and the opportunity that each party will have to provide information to OSHA. Paragraph (d) of this section discusses confidentiality of information provided during investigations. Paragraph (e) of this section sets forth the applicable burdens of proof. Paragraph (f) describes the procedures OSHA will follow prior to the issuance of findings and a preliminary order when OSHA has reasonable cause to believe that a violation has occurred. Section 18C of the FLSA incorporates the burdens of proof set forth in CPSIA, 15 U.S.C. 2087(b). That statute requires that a complainant make an initial prima facie showing that protected activity was ``a contributing factor'' in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. A complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after the protected activity, or at the first opportunity available to the respondent, giving rise to the inference that it was a contributing factor in the adverse action. See, e.g., Porter v. Cal. Dep't of Corrs., 419 F.3d 885, 895 (9th Cir. 2005) (holding that years between the protected activity and the retaliatory actions did not defeat a finding of a causal connection where the defendant did not have the opportunity to retaliate until he was given responsibility for making personnel decisions). If the complainant does not make the required prima facie showing, 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, which is the same framework now applicable to section 18C of the FLSA, serves a ``gatekeeping function'' that ``stem[s] frivolous complaints''). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the respondent demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Thus, OSHA must dismiss a complaint under section 18C of the FLSA 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 adverse action; or (2) the respondent rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity. Assuming that an investigation proceeds beyond the gatekeeping phase, the statute requires OSHA to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. A contributing factor is ``any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (internal quotation marks, emphasis and citation omitted) (discussing the Whistleblower Protection Act, 5 U.S.C. 1221(e)(1)); see, e.g., Lockheed Martin Corp., 717 F.3d at 1136. For protected activity to be a contributing factor in the adverse action, ```a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail,''' because a complainant alternatively can prevail by showing that the respondent's ``reason, while true, is only one of the reasons for its conduct,'' and that another reason [[Page 70615]] was the complainant's protected activity. See Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB No. 04-149, 2006 WL 3246904, at *13 (ARB May 31, 2006) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)) (discussing contributing factor test under the Sarbanes-Oxley whistleblower provision), aff'd sub nom. Klopfenstein v. Admin. Review Bd., U.S. Dep't of Labor, 402 F. App'x 936, 2010 WL 4746668 (5th Cir. 2010). If OSHA finds reasonable cause to believe that the alleged protected activity was a contributing factor in the adverse action, OSHA may not order relief if the employer demonstrates by ``clear and convincing evidence'' that it would have taken the same action in the absence of the protected activity. See 15 U.S.C. 2087(b)(2)(B)(ii). 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. See, e.g., Clarke v. Navajo Express, Inc., ARB No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011) (discussing burdens of proof under analogous whistleblower provision in Surface Transportation Assistance Act). BCBS and the Chamber commented on this section. BCBS commented that the regulations should provide procedures for instances when the complaint names multiple respondents and suggests amending Sec. 1984.104(e)(2)(ii) to read as follows: ``Each respondent knew or suspected . . . .'' BCBS also commented that OSHA should dismiss complaints against respondents who do not have the requisite knowledge of alleged retaliation to justify continuing the complaint process against them, and clarify in Sec. 1984.104(e)(3) that a showing that the adverse action took place shortly after the protected activity would not give rise to the inference that it was a contributing factor in the adverse action in instances when the respondent did not know or suspect that the complainant engaged in a protected activity. OSHA declines to make these changes because they are unnecessary and could cause confusion. The IFR already does not exclude multiple respondents and adding the word ``each'' to Sec. 1984.104(e)(2)(ii) could be construed as allowing liability only when all respondents have the requisite knowledge or suspicion. Additionally, the IFR already provides a basis for dismissing claims against respondents who lack requisite knowledge or suspicion, such as at Sec. 1984.104(e) where it provides that a ``complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing that protected activity was a contributing factor in the alleged adverse action including that ``[t]he respondent knew or suspected that the employee engaged in the protected activity . . . .'' The Chamber commented that the IFR improperly treated respondents and complainants differently by allowing complainants to receive copies of documents submitted by the respondent, subject to privacy and confidentiality standards, but providing no similar entitlement for respondents. OSHA believes this is incorrect. The IFR and the statute both provide the respondent the right to receive the substance of the evidence supporting the complaint, and OSHA's investigation procedures, which ensure that each party's submissions are available to the other party during the investigation, are further explained in OSHA's Whistleblower Investigations Manual. Nonetheless, to clarify that respondents and complainants are afforded equal access to each other's submissions during the OSHA investigation, OSHA has revised paragraph (c) of this section to reflect its current information sharing practices. Also, throughout this section, minor changes were made as needed to clarify the remaining provisions without changing their meaning. Section 1984.105 Issuance of Findings and Preliminary Orders This section provides that, on the basis of information obtained in the investigation, the Assistant Secretary will issue, within 60 days of the filing of a complaint, written findings regarding whether or not there is reasonable cause to believe that the complaint has merit. If the findings are that there is reasonable cause to believe that the complaint has merit, the Assistant Secretary will order appropriate relief, including preliminary reinstatement, affirmative action to abate the violation, back pay with interest, compensatory damages, attorney and expert witness fees, and costs. The findings and, where appropriate, preliminary order, advise the parties of their right to file objections to the findings of the Assistant Secretary and to request a hearing. The findings and, where appropriate, preliminary order, also advise the respondent of the right to request an award of attorney fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the 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. This section also provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. In the Secretary's view, 26 U.S.C. 6621 provides the appropriate rate of interest to ensure that victims of unlawful retaliation under section 18C of the FLSA are made whole. The Secretary has long applied the interest rate in 26 U.S.C. 6621 to calculate interest on back pay in whistleblower cases. See Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, 00- 012, 2000 WL 694384, at *14-15, 17 (ARB May 17, 2000); see also Cefalu v. Roadway Express, Inc., ARB No. 09-070, 2011 WL 1247212, at *2 (ARB Mar. 17, 2011); Pollock v. Cont'l Express, ARB Nos. 07-073, 08-051, 2010 WL 1776974, at *8 (ARB Apr. 10, 2010); Murray v. Air Ride, Inc., ARB No. 00-045, 2000 WL 1920347 at *6 (ARB Dec. 29, 2000). Section 6621 of the Code provides the appropriate measure of compensation under section 18C and other DOL-administered whistleblower statutes because it ensures the complainant will be placed in the same position he or she would have been in if no unlawful retaliation occurred. See Ass't Sec'y v. Double R. Trucking, Inc., ARB No. 99-061, 1999 WL 529752 at *4 (ARB July 16, 1999) (interest awards pursuant to Code section 6621 are mandatory elements of complainant's make-whole remedy). Code section 6621 provides a reasonably accurate prediction of market outcomes (which represents the loss of investment opportunity by the complainant and the employer's benefit from use of the withheld money) and thus provides the complainant with appropriate make-whole relief. See E.E.O.C. v. County of Erie, 751 F.2d 79, 82 (2d Cir. 1984) (``[s]ince the goal of a suit under the [Fair Labor Standards Act] and the Equal Pay Act is to make whole the victims of the unlawful underpayment of wages, and since [Code section 6621] has been adopted as a good indicator of the value of the use of money, it was well within'' the district court's [[Page 70616]] discretion to calculate prejudgment interest under Code section 6621); New Horizons for the Retarded, Inc., 283 NLRB No. 181, 1987 WL 89652, at *2 (NLRB May 28, 1987) (observing that ``the short-term Federal rate [used by Code section 6621] is based on average market yields on marketable Federal obligations and is influenced by private economic market forces''). Similarly, as explained in the IFR, daily compounding of the interest award ensures that complainants are made whole for unlawful retaliation in violation of section 18C. See 78 FR 13227. Finally, this section has been revised to note that when ordering back pay, OSHA also will require the respondent to submit the appropriate documentation to the Social Security Administration allocating the back pay to the appropriate period. Requiring the reporting of back pay allocation to the Social Security Administration serves the remedial purposes of section 18C by ensuring that employees subjected to retaliation are truly made whole. See Don Chavas, LLC d/b/ a Tortillas Don Chavas, 361 NLRB No. 10, 2014 WL 3897178, at *4-5 (NLRB Aug. 8, 2014) (holding that back pay awards under the National Labor Relations Act should include the allocation of back pay to the appropriate calendar quarters). As the NLRB has explained, when back pay is not properly allocated to the years covered by the award, a complainant may be disadvantaged in several ways. First, improper allocation may interfere with a complainant's ability to qualify for any old-age Social Security benefit. Id. at *4 (``Unless a [complainant's] multiyear back pay award is allocated to the appropriate years, she will not receive appropriate credit for the entire period covered by the award, and could therefore fail to qualify for any old-age social security benefit''). Second, improper allocation may reduce the complainant's eventual monthly benefit. Id. ``[I]f a backpay award covering a multi-year period is posted as income for 1 year, it may result in SSA treating the [complainant] as having received wages in that year in excess of the annual contribution and benefit base.'' Id. Wages above this base are not subject to Social Security taxes, which reduces the amount paid on the employee's behalf. ``As a result, the [complainant's] eventual monthly benefit will be reduced because participants receive a greater benefit when they have paid more into the system.'' Id. Finally, ``social security benefits are calculated using a progressive formula: although a participant receives more in benefits when she pays more into the system, the rate of return diminishes at higher annual incomes.'' Therefore, a complainant may ``receive a smaller monthly benefit when a multiyear award is posted to 1 year rather than being allocated to the appropriate periods, even if social security taxes were paid on the entire amount.'' Id. The purpose of a make-whole remedy such as back pay is to restore the complainant to the same position the complainant would have occupied absent the prohibited retaliation. That purpose is not achieved when the complainant suffers the disadvantages described above. The Secretary believes that requiring proper social security allocation is necessary to achieve the make-whole purpose of a back pay award. In addition to adding the requirement that the respondent submit the appropriate documentation to the Social Security Administration allocating the back pay to the appropriate period, OSHA has made minor changes throughout this section as needed to clarify the provision without changing its meaning. OSHA received two comments on the remedy of reinstatement provided for in this section. In the preamble to the IFR, OSHA noted that, while the statute is clear that reinstatement is the presumptive remedy under section 18C of the FLSA, in rare circumstances economic reinstatement or front pay in lieu of actual reinstatement may be appropriate and that reinstatement includes restoration of the terms, conditions, and privileges associated with the complainant's employment as necessary to put the employee in the same position or a position equivalent to the position that the employee held prior to the retaliation. Beckner commented in support of the use of economic reinstatement where the employer-employee relationship has broken down beyond repair. SEIU commented that OSHA should amend the rule to clarify that reinstatement, including preliminary reinstatement, means full restoration of pay and benefits. SEIU stated that reinstatement requires full restoration to the status quo and includes restoration of duties and hours where those were reduced to reduce an employee's pay. As SEIU correctly noted, OSHA's Whistleblower Investigations Manual, as well as relevant case law under the whistleblower protection statutes that OSHA administers, makes clear that reinstatement is reinstatement to the full status quo prior to the retaliation and would include a restoration of hours and duties as necessary to ensure that the whistleblower is returned to the same position that he or she would have been in absent the retaliation. The statute explicitly requires that the Secretary order the employer ``to reinstate the complainant to his or her former position together with compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment.'' 15 U.S.C. 2087(b)(3)(B)(ii). If the employee's original position is not available, the employer may return the employee to an equivalent position. See, e.g., Hobby v. Georgia Power Co., ARB Nos. 98-166, 98-169, 2001 WL 168898 at *10 (ARB Feb. 9, 2001) (noting that ``[w]hile the remedies section of the Energy Reorganization Act whistleblower provision states that the Secretary `shall . . . reinstate the [prevailing] complainant to his former position . . .', this text has been construed to mean reinstatement to the same or a similar position to the job that was formerly held'') (emphasis original, citations omitted). Because the statutory text and the applicable case law make clear that reinstatement must restore the complainant to the position he would have occupied absent the retaliation or an equivalent position, OSHA has not made any changes to the rule to clarify the term reinstatement in response to SEIU's comment. Subpart B--Litigation Section 1984.106 Objections to the Findings and the Preliminary Order and Requests for a Hearing To be effective, objections to the findings of the Assistant Secretary must be in writing and must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, within 30 days of receipt of the findings. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand- delivery or other means, the objection is filed upon receipt. The filing of objections also is considered a request for a hearing before an ALJ. Although the parties are directed to serve a copy of their objections on the other parties of record, as well as the OSHA official who issued the findings and order, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards, the failure to serve copies of the objections on the other parties of record does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., ARB No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005). [[Page 70617]] In this section, SEIU repeated its comment that the regulations should clarify that the term ``reinstatement,'' including ``preliminary reinstatement,'' means full restoration of pay and benefits. OSHA's response to this comment is addressed in the discussion of Sec. 1984.105. No substantive changes have been made to this section. Section 1984.107 Hearings This section adopts the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges at 29 CFR part 18 subpart A. Hearings are to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo, on the record. ALJs continue to have broad discretion to limit discovery where necessary to expedite the hearing. Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. No comments were received on this section and no changes were made. Section 1984.108 Role of Federal Agencies The Assistant Secretary, at his or her discretion, may participate as a party or amicus curiae at any time in the administrative proceedings under section 18C of the FLSA. For example, the Assistant Secretary may exercise his or her discretion to prosecute the case in the administrative proceeding before an ALJ, petition for review of a decision of an ALJ, including a decision based on a settlement agreement between the complainant and the respondent, regardless of whether the Assistant Secretary participated before the ALJ; or participate as amicus curiae before the ALJ or in the ARB proceeding. Although OSHA anticipates that ordinarily the Assistant Secretary will not participate, the Assistant Secretary may choose to do so in appropriate cases, such as cases involving important or novel legal issues, large numbers of employees, alleged violations that appear egregious, or where the interests of justice might require participation by the Assistant Secretary. The Internal Revenue Service of the United States Department of the Treasury, the United States Department of Health and Human Services, and the Employee Benefits Security Administration of the United States Department of Labor, if interested in a proceeding, also may participate as amicus curiae at any time in the proceedings. No comments were received on this section. Throughout this section, minor changes were made as needed to clarify the provision without changing its meaning. Section 1984.109 Decision and Orders of the Administrative Law Judge This section sets forth the requirements for the content of the decision and order of the ALJ, and includes the standard for finding a violation under section 18C. Specifically, the complainant must demonstrate (i.e. prove by a preponderance of the evidence) that the protected activity was a ``contributing factor'' in the adverse action. See, e.g., Allen, 514 F.3d at 475 n.1 (``The term `demonstrates' means to prove by a preponderance of the evidence.''). If the employee demonstrates that the protected activity was a contributing factor in the adverse action, the employer, to escape liability, must demonstrate by ``clear and convincing evidence'' that it would have taken the same action in the absence of the protected activity. See id. Paragraph (c) of this section provides that OSHA's determinations regarding whether to proceed with an investigation under section 18C and whether to make particular investigative findings are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, as a general matter, may not remand cases to OSHA to conduct an investigation or make further factual findings. Paragraph (c) also notes that the ALJ can dispose of a matter without a hearing if the facts and circumstances warrant. Paragraph (d) notes the remedies that the ALJ may order under section 18C and provides that interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph (d) has been revised to note that when back pay is ordered, the order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. Paragraph (e) requires that the ALJ's decision be served on all parties to the proceeding, the Assistant Secretary, and the U.S. Department of Labor's Associate Solicitor for Fair Labor Standards. Paragraph (e) also provides that any ALJ decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the ARB. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review. No comments were received on this section. In addition to the revision noted above regarding the allocation of back pay to the appropriate period, minor changes were made as needed to clarify the provision without changing its meaning. Section 1984.110 Decision and Orders of the Administrative Review Board Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the ARB for review of that decision. If no timely petition for review is filed with the ARB, the decision of the ALJ becomes the final decision of the Secretary and is not subject to judicial review. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing of the petition; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt. The appeal provisions in this part provide that an appeal to the ARB is not a matter of right but is accepted at the discretion of the ARB. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. The ARB has 30 days to decide whether to grant the petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. If a timely petition for review is filed with the ARB, any relief ordered by the ALJ, except for that portion ordering reinstatement, is inoperative while the matter is pending before the ARB. When the ARB accepts a petition for review, the ALJ's factual determinations will be reviewed under the substantial evidence standard. This section also provides that, based on exceptional circumstances, the ARB may grant a motion to stay an ALJ's preliminary order of reinstatement under section 18C, which otherwise would be effective, while review is conducted by the ARB. The Secretary believes that a stay of an ALJ's preliminary order of reinstatement under section 18C 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 70618]] parties, and the public interest favors a stay. If the ARB concludes that the respondent has violated the law, it will order the remedies listed in paragraph (d). Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. Paragraph (d) has been revised to note that when back pay is ordered, the order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. Beckner and Renner commented that the time period for filing a petition for review with the ARB of an ALJ's decision is too short. Beckner commented that allowing both parties only 14 days to petition the ARB to review an ALJ decision appeal is too short and inconsistent with the rule's allowing 30 days to determine whether an ALJ's decision was in error. Renner commented that ``[t]he proper adjudication of whistleblower matters would be enhanced if parties and their counsel can prepare their briefs, and select their issues, thoughtfully. . . . When faced with the unusually short time limit of fourteen (14) days to submit a petition that must list all issues, advocates are likely to overselect. To preserve issues and avoid missing a meritorious claim, they are likely to list every issue that might conceivably apply. While counsel could choose to drop issues between the petition and the brief, requiring counsel to list all the issues in the petition makes it more likely that counsel will then face pressure to brief those issues.'' He added that ``some whistleblowers or their counsel may find the task of reviewing the record to identify all appealable issues so consuming that they miss the short deadline for filing the petition for review.'' Renner also commented that the provision that objections to legal conclusions not raised in petitions for review may be deemed waived should be changed. He specifically suggested that section 1984.110(a) should be amended to read as follows: ``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 so that the Administrative Review Board may determine that the review presents issues worthy of full briefing.'' He stated that the provision as written could work against the remedial purpose of the law. After consideration, OSHA declines to alter the time period within which to appeal the decision of an ALJ. We believe that 14 days is sufficient and note that it is consistent with the time periods available under various other whistleblower provisions for which OSHA is responsible, which range from ten business days to 14 calendar days. Compare 29 CFR 1983.109(e) with 29 CFR 1985.109(e); 29 CFR 1987.109(e). OSHA also declines to adopt Renner's additional suggestions relating to this section. First, OSHA declines to extend the time limit to petition for review because the shorter review period is consistent with the practices and procedures followed in OSHA's other whistleblower programs. Furthermore, parties may file a motion for extension of time to appeal an ALJ's decision, and the ARB has discretion to grant such extensions. OSHA also declines to change the provision that objections to legal conclusions not raised in petitions for review ``may'' be deemed waived. OSHA first notes that the use of the term ``may'' in the IFR was made as a result of comments submitted by Renner on other whistleblower rules recently published by OSHA. See, e.g., Procedures for the Handling of Retaliation Complaints Under Section 219 of the Consumer Product Safety Improvement Act of 2008, 77 FR 40494, 40500-01 (July 10, 2012); Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982, as amended, 77 FR 44121, 44131-32 (July 27, 2012). OSHA believes that use of the non-mandatory word ``may'' adequately addresses Renner's underlying concern that grounds not raised in a petition for review may be barred from consideration before the ARB. In addition to the revision noted above regarding the allocation of back pay to the appropriate period, minor changes were made as needed to clarify this section without changing its meaning. Subpart C--Miscellaneous Provisions Section 1984.111 Withdrawal of Complaints, Findings, Objections, and Petitions for Review; Settlement This section provides the procedures and time periods for withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, and the withdrawal of objections to findings and/or orders. It also provides for approval of settlements at the investigative and adjudicative stages of the case. No comments were received on this section. Minor changes were made as needed to this section to clarify the provision without changing its meaning. Section 1984.112 Judicial Review This section describes the statutory provisions of CPSIA, incorporated into section 18C of the FLSA, for judicial review of decisions of the Secretary and requires, in cases where judicial review is sought, the ALJ or the ARB to submit the record of proceedings to the appropriate court pursuant to the rules of such court. No comments were received on this section and no changes were made. Section 1984.113 Judicial Enforcement This section describes the Secretary's power under section 18C to obtain judicial enforcement of orders and the terms of settlement agreements. Section 18C incorporates the procedures, notifications, burdens of proof, remedies, and statutes of limitations set forth in CPSIA, 15 U.S.C. 2087(b), which expressly authorizes district courts to enforce orders, including preliminary orders of reinstatement, issued by the Secretary. See 15 U.S.C. 2087(b)(6) (``Whenever any person has failed to comply with an order issued under paragraph (3), the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia, to enforce such order.''). Specifically, reinstatement orders issued at the close of OSHA's investigation are immediately enforceable in district court pursuant to 15 U.S.C. 2087(b)(6) and (7). Section 18C of the FLSA provides, through CPSIA, that the Secretary shall order the person who has committed a violation to reinstate the complainant to his or her former position. See 15 U.S.C. 2087(b)(3)(B)(ii). Section 18C of the FLSA also provides, through CPSIA, that the Secretary shall accompany any reasonable cause finding that a violation occurred with a preliminary order containing the relief prescribed by subsection (b)(3)(B) of CPSIA, which includes reinstatement where appropriate, and that any preliminary order of reinstatement shall not be stayed upon the filing of objections. See 15 U.S.C. 2087(b)(2)(A) (``The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order.''). Thus, under section 18C of the FLSA, enforceable orders include preliminary orders that contain the relief of reinstatement prescribed by 15 U.S.C. 2087(b)(3)(B). This statutory interpretation is [[Page 70619]] consistent with the Secretary's interpretation of similar language in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century and Sarbanes-Oxley. See Brief for the Intervenor/Plaintiff- Appellee Secretary of Labor, Solis v. Tenn. Commerce Bancorp, Inc., No. 10-5602 (6th Cir. 2010); Solis v. Tenn. Commerce Bancorp, Inc., 713 F. Supp. 2d 701 (M.D. Tenn. 2010); but see Bechtel v. Competitive Techs., Inc., 448 F.3d 469 (2d Cir. 2006); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552 (W.D. Va. 2006) (decision vacated, appeal dismissed, No. 06-2295 (4th Cir. Feb. 20, 2008)). Also, through application of CPSIA, section 18C of the FLSA permits the person on whose behalf the order was issued to obtain judicial enforcement of the order. See 15 U.S.C. 2087(b)(7). No comments were received on this section. OSHA has revised this section slightly to more closely parallel the provisions of the statute regarding the proper venue for an enforcement action. Section 1984.114 District Court Jurisdiction of Retaliation Complaints This section sets forth the statutory provisions that allow a complainant to bring an original de novo action in district court, alleging the same allegations contained in the complaint filed with OSHA, under certain circumstances. By incorporating the procedures, notifications, burdens of proof, remedies, and statutes of limitations set forth in CPSIA, 15 U.S.C. 2087(b), section 18C permits a complainant to file an action for de novo review in the appropriate district court if there has been no final decision of the Secretary within 210 days of the filing of the complaint, or within 90 days after receiving a written determination. ``Written determination'' refers to the Assistant Secretary's written findings issued at the close of OSHA's investigation under section 1984.105(a). 15 U.S.C. 2087(b)(4). The Secretary's final decision is generally the decision of the ARB issued under section 1984.110. In other words, a complainant may file an action for de novo review in the appropriate district court in either of the following two circumstances: (1) A complainant may file a de novo action in district court within 90 days of receiving the Assistant Secretary's written findings issued under section 1984.105(a), or (2) a complainant may file a de novo action in district court if more than 210 days have passed since the filing of the complaint and the Secretary has not issued a final decision. The plain language of 15 U.S.C. 2087(b)(4), by distinguishing between actions that can be brought if the Secretary has not issued a ``final decision'' within 210 days and actions that can be brought within 90 days after a ``written determination,'' supports allowing de novo actions in district court under either of the circumstances described above. However, in the Secretary's view, complainants may not initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the complaint or within 90 days of the complainant's receipt of the Assistant Secretary's written findings. 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. Under section 18C of the FLSA, the Assistant Secretary's written findings become the final order of the Secretary, not subject to judicial review, if no objection is filed within 30 days. See 15 U.S.C. 2087(b)(2). Thus, a complainant may need to file timely objections to the Assistant Secretary's findings in order to preserve the right to file an action in district court. This section also requires that, within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. In all cases, a copy of the 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. The section also incorporates the statutory provisions which allow for a jury trial at the request of either party in a district court action, and which specify the remedies and burdens of proof in a district court action. OSHA received two comments on this section that are addressed in the general comments discussion. OSHA made minor changes to this section, substituting the term ``retaliation'' for ``discrimination'' and clarifying that in all cases parties must provide a copy of the district court complaint 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. Section 1984.115 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 section 18C of the FLSA requires. No comments were made on this section and no substantive changes were made. IV. Paperwork Reduction Act This rule contains a reporting provision (filing a retaliation complaint, Section 1984.103) which was previously reviewed and approved for use by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The assigned OMB control number is 1218-0236. V. Administrative Procedure Act NFIB and the Chamber commented that the IFR should be reissued as a Notice of Proposed Rulemaking. However, the notice and comment rulemaking procedures of section 553 of the Administrative Procedure Act (APA) do not apply ``to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). This rule is a rule of agency procedure, practice, and interpretation within the meaning of that section. This rule is ``procedural on its face,'' because it sets forth procedures for OSHA to use in investigating complaints under the whistleblower provisions of the ACA, and procedures for the Secretary's adjudication of ACA whistleblower cases. See U.S. Dep't of Labor v. Kast Metals Corp., 744 F.2d 1145, 1150, 1152 (5th Cir.1984) (OSHA rule which ``set[] forth procedural steps to guide the agency in exercise of its statutory authority to conduct investigations,'' was ``procedural on its face.''); see also American Hosp. Assoc. v. Bowen, 834 F.2d 1037, 1050-51 (D.C. Cir. 1987) (holding the same with regard to HHS enforcement plan). The rule is ``primarily directed toward improving the efficient and effective operations of'' [[Page 70620]] the agency. See Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014) (citations omitted) (explaining the difference between procedural and legislative rules). The rule does not alter the rights or interests of the parties to an ACA whistleblower proceeding, which are set forth in the statute and relevant case law. Rather, the rule sets forth the procedures under which the Secretary will investigate and adjudicate ACA whistleblower disputes. The rule is also interpretative, in part, since it also clarifies certain statutory terms, reminds parties of their existing obligations under the statute, and explains preexisting requirements under the statute. See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015), quoting Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995) (noting that interpretative rules are ``issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers'); see also Mendoza, 754 F.3d at 1021 (``Interpretative rules are those that clarify a statutory or regulatory term, remind parties of existing statutory or regulatory duties, or merely track preexisting requirements and explain something the statute or regulation already required.'') (internal citations and quotations omitted). Therefore, OSHA was not required to publish a notice of proposed rulemaking in the Federal Register and request public comments on this rule. Although it was not required to do so for this procedural and interpretative rule, OSHA sought and considered comments to enable the agency to improve the rules by taking into account the concerns of interested persons. Furthermore, because this rule is procedural and 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 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. Furthermore, most of the provisions of this rule were in the IFR and have already been in effect since February 27, 2013 so a delayed effective date is unnecessary. VI. Executive Orders 12866 and 13563; Unfunded Mandates Reform Act of 1995; Executive Order 13132 NFIB and the Chamber commented that the IFR failed to comply with Executive Orders 12866 and 13563. OSHA disagrees. The Office of Management and Budget has concluded that this rule is a ``significant regulatory action'' within the meaning of section 3(f)(4) of Executive Order 12866. Executive Order 12866, reaffirmed by Executive Order 13563, requires a full economic impact analysis only for ``economically significant'' rules, which are defined in Section 3(f)(1) of Executive Order 12866 as rules that may ``[h]ave an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.'' The rule is procedural and interpretative in nature. Because it simply implements procedures necessitated by enactment of section 18C of the FLSA, the rule is expected to have a negligible economic impact and no economic impact analysis under Section 6(a)(3)(C) of Executive Order 12866 has been prepared. For the same reason, and the fact that no notice of proposed rulemaking has been published, the rule does not require a Section 202 statement under the Unfunded Mandates Reform Act of 1995. 2 U.S.C. 1531 et seq. Finally, this rule does not have ``federalism implications,'' in that it does not have ``substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government'' and therefore is not subject to Executive Order 13132 (Federalism). VII. Regulatory Flexibility Analysis NFIB and the Chamber commented that the IFR did not comply with the requirements of the Regulatory Flexibility Act (RFA) and that OSHA should have produced an Initial Regulatory Flexibility Analysis (IRFA). NFIB also asserts that a Small Business Advocacy Review panel is warranted. OSHA disagrees. The notice and comment rulemaking procedures of section 553 of the APA do not apply ``to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment requirements are also exempt from the RFA. See SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, at 9 (May 2012); available at: http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf*. This is a rule of agency procedure, practice, and interpretation within the meaning of 5 U.S.C. 553; and therefore the rule is exempt from both the notice and comment rulemaking procedures of the APA and the requirements under the RFA. For similar reasons, OSHA does not agree that a Small Business Advocacy Review panel is warranted. List of Subjects in 29 CFR Part 1984 Administrative practice and procedure, Employment, Health care, Investigations, Reporting and recordkeeping requirements, Whistleblower. Authority and Signature This document was prepared under the direction and control of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health. Signed at Washington, DC, on October 5, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. 0 Accordingly, for the reasons set out in the preamble, 29 CFR part 1984 is revised to read as follows: PART 1984--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER SECTION 1558 OF THE AFFORDABLE CARE ACT Subpart A--Complaints, Investigations, Findings, and Preliminary Orders Sec. 1984.100 Purpose and scope. 1984.101 Definitions. 1984.102 Obligations and prohibited acts. 1984.103 Filing of retaliation complaint. 1984.104 Investigation. 1984.105 Issuance of findings and preliminary orders. Subpart B--Litigation 1984.106 Objections to the findings and the preliminary order and requests for a hearing. 1984.107 Hearings. 1984.108 Role of Federal agencies. 1984.109 Decision and orders of the administrative law judge. 1984.110 Decision and orders of the Administrative Review Board. Subpart C--Miscellaneous Provisions 1984.111 Withdrawal of complaints, findings, objections, and petitions for review; settlement. 1984.112 Judicial review. 1984.113 Judicial enforcement. 1984.114 District court jurisdiction of retaliation complaints. 1984.115 Special circumstances; waiver of rules. Authority: 29 U.S.C. 218C; Secretary of Labor's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary of Labor's Order No. 2-2012 (Oct. 19, 2012), 77 FR 69378 (Nov. 16, 2012). [[Page 70621]] Subpart A--Complaints, Investigations, Findings, and Preliminary Orders Sec. 1984.100 Purpose and scope. (a) This part implements procedures under section 1558 of the Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119, which was signed into law on March 23, 2010 and was amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, 124 Stat. 1029, signed into law on March 30, 2010. The terms ``Affordable Care Act'' or ``the Act'' are used in this part to refer to the final, amended version of the law. Section 1558 of the Act amended the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) by adding new section 18C. 29 U.S.C. 218C. Section 18C of the FLSA provides protection for an employee from retaliation because the employee has received a credit under section 36B of the Internal Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction (referred to as a ``subsidy'' in section 18C) under the Affordable Care Act, or because the employee has engaged in protected activity pertaining to title I of the Affordable Care Act or any amendment made by title I of the Affordable Care Act. (b) This part establishes procedures under section 18C of the FLSA for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf and sets forth the Secretary's interpretations of section 18C on certain statutory issues. These rules, together with those codified at 29 CFR part 18, set forth the procedures under section 18C of the FLSA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. Sec. 1984.101 Definitions. As used in this part: (a) Advance payments of the premium tax credit or ``APTC'' means advance payments of the premium tax credit as defined in 45 CFR 155.20. (b) Affordable Care Act or ``the Act'' means the Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119 (Mar. 23, 2010), as amended. (c) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under section 18C of the FLSA. (d) Business days means days other than Saturdays, Sundays, and federal holidays. (e) Complainant means the employee who filed an FLSA section 18C complaint or on whose behalf a complaint was filed. (f) Employee means: (1) Any individual employed by an employer. In the case of an individual employed by a public agency, the term employee means any individual employed by the Government of the United States: As a civilian in the military departments (as defined in 5 U.S.C. 102), in any executive agency (as defined in 5 U.S.C. 105), in any unit of the judicial branch of the Government which has positions in the competitive service, in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, in the Library of Congress, or in the Government Printing Office. The term employee also means any individual employed by the United States Postal Service or the Postal Regulatory Commission; and any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than an individual who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and who holds a public elective office of that State, political subdivision, or agency, is selected by the holder of such an office to be a member of his personal staff, is appointed by such an officeholder to serve on a policymaking level, is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency. (2) The term employee does not include: (i) Any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered--and such services are not the same type of services which the individual is employed to perform for such public agency; (ii) Any employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency that volunteers to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement; or (iii) Any individual who volunteers their services solely for humanitarian purposes to private non-profit food banks and who receive groceries from the food banks. (3) The term employee includes former employees and applicants for employment. (g) Employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization. (h) Exchange means an Exchange as defined in 45 CFR 155.20. (i) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor. (j) Person means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons. (k) Respondent means the employer named in the complaint who is alleged to have violated section 18C of the FLSA. (l) Secretary means the Secretary of Labor or person to whom authority under section 18C of the FLSA has been delegated. (m) Any future statutory amendments that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein. (n) Any future regulatory revisions that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein. Sec. 1984.102 Obligations and prohibited acts. (a) No employer may discharge or otherwise retaliate against, including, but not limited to, intimidating, threatening, restraining, coercing, blacklisting or disciplining, any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or an individual acting at the request of the employee), has engaged in any of the activities specified in paragraphs (b)(1) through (5) of this section. (b) An employee is protected against retaliation because the employee (or an individual acting at the request of the employee) has: (1) Received a credit under section 36B of the Internal Revenue Code of [[Page 70622]] 1986, 26 U.S.C. 36B, or a cost-sharing reduction under the Affordable Care Act, or been determined by an Exchange to be eligible for advance payments of the premium tax credit (APTC) or for a cost-sharing reduction; (2) Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of title I of the Affordable Care Act (or an amendment made by title I of the Affordable Care Act); (3) Testified or is about to testify in a proceeding concerning such violation; (4) Assisted or participated, or is about to assist or participate, in such a proceeding; or (5) Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of title I of the Affordable Care Act (or amendment), or any order, rule, regulation, standard, or ban under title I of the Affordable Care Act (or amendment). Sec. 1984.103 Filing of retaliation complaint. (a) Who may file. An employee who believes that he or she has been retaliated against in violation of section 18C of the FLSA may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. (b) Nature of filing. No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language. (c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the employee resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: http://www.osha.gov. (d) Time for filing. Within 180 days after an alleged violation of section 18C of the FLSA occurs, any employee who believes that he or she has been retaliated against in violation of that section may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in- person filing at an OSHA office will be considered the date of filing. The time for filing a complaint may be tolled for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint equitably tolled if a complainant mistakenly files a complaint with another agency instead of OSHA within 180 days after becoming aware of the alleged violation. Sec. 1984.104 Investigation. (a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and Sec. 1984.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or complainant's legal counsel if complainant is represented by counsel) and to the appropriate office of the federal agency charged with the administration of the general provisions of the Affordable Care Act under which the complaint is filed: Either the Internal Revenue Service of the United States Department of the Treasury (IRS), the United States Department of Health and Human Services (HHS), or the Employee Benefits Security Administration of the United States Department of Labor (EBSA). (b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent and the complainant each may submit to OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent and the complainant each may request a meeting with OSHA to present its position. (c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions. (d) Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of this title. (e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that a protected activity was a contributing factor in the adverse action alleged in the complaint. (2) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows: (i) The employee engaged in a protected activity; (ii) The respondent knew or suspected that the employee engaged in the protected activity; (iii) The employee suffered an adverse action; and (iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action. (3) For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complaint shows that the adverse action took place shortly after the protected activity, or at the first opportunity available to respondent, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel, if complainant is represented by counsel) will be so notified and the investigation will not commence. (4) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, further investigation of the complaint will not be conducted if the respondent demonstrates by clear and convincing evidence that it would have taken the [[Page 70623]] same adverse action in the absence of the complainant's protected activity. (5) If the respondent fails to make a timely response or fails to satisfy the burden set forth in the prior paragraph, OSHA will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent. (f) Prior to the issuance of findings and a preliminary order as provided for in Sec. 1984.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated section 18C of the FLSA and that preliminary reinstatement is warranted, OSHA will contact the respondent (or the respondent's legal counsel if respondent is represented by counsel) to give notice of the substance of the relevant evidence supporting the complainant's allegations as developed during the course of the investigation. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided. The complainant will also receive a copy of the materials that must be provided to the respondent under this paragraph. Before providing such materials to the complainant, OSHA will redact them, if necessary, 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 afterwards as OSHA and the respondent can agree, if the interests of justice so require. Sec. 1984.105 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 section 18C of the FLSA. (1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. (2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding. (b) The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested (or other means that allow OSHA to confirm receipt), to all parties of record (and each party's legal counsel if the party is represented by counsel). The findings and, where appropriate, the preliminary order will inform the parties of the right to object to the findings and/or order and to request a hearing, and of the right of the respondent to request an award of attorney fees not exceeding $1,000 from the administrative law judge (ALJ), regardless of whether the respondent has filed objections, if respondent alleges that the complaint was frivolous or brought in bad faith. The findings, and where appropriate, the preliminary order, also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order. (c) The findings and any preliminary order will be effective 30 days after receipt by the respondent (or the respondent's legal counsel if the respondent is represented by counsel), or on the compliance date set forth in the preliminary order, whichever is later, unless an objection and/or a request for hearing has been timely filed as provided at Sec. 1984.106. 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. 1984.106 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 section 18C of the FLSA, 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. 1984.105(b). The objections, request for a hearing, and/or request for attorney fees must be in writing and state whether the objections are to the findings and/or the preliminary order, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing; if the objection is filed in person, by hand delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the objections must be mailed at the same time to the other parties of record, the OSHA official who issued the findings and order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. (b) If a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. The portion of the preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the order. The respondent may file a motion with the Office of Administrative Law Judges for a stay of the Assistant Secretary's preliminary order of reinstatement, which shall be granted only based on exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or the preliminary order will become the final decision of the Secretary, not subject to judicial review. [[Page 70624]] Sec. 1984.107 Hearings. (a) Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A of part 18 of this title. (b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to an ALJ who will notify the parties, by certified mail, of the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. ALJs have broad discretion to limit discovery in order to expedite the hearing. (c) If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated and a single hearing will be conducted. (d) Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. Sec. 1984.108 Role of Federal agencies. (a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. At the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or as amicus curiae at any time at any stage of the proceeding. This right to participate includes, but is not limited to, the right to petition for review of a decision of an ALJ, including a decision approving or rejecting a settlement agreement between the complainant and the respondent. (2) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules. (b) The IRS, HHS, and EBSA, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at those agencies' discretion. At the request of the interested federal agency, copies of all documents in a case must be sent to the federal agency, whether or not the agency is participating in the proceeding. Sec. 1984.109 Decision and orders of the administrative law judge. (a) The decision of the administrative law judge (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. 1984.104(e) nor OSHA's determination to proceed with an investigation is subject to review by the ALJ, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if the facts and circumstances warrant. (d)(1) If the ALJ concludes that the respondent has violated the law, the ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. (2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ALJ determines that a complaint was frivolous or was brought in bad faith, the ALJ may award to the respondent reasonable attorney fees, not exceeding $1,000. (e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. Any ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. All other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review. Sec. 1984.110 Decision and orders of the Administrative Review Board. (a) Any party desiring to seek review, including judicial review, of a decision of the ALJ, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees, must file a written petition for review with the Administrative Review Board (ARB), which has been delegated the authority to act for the Secretary and issue final decisions under this part. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. A petition must be filed within 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal will be considered to be the date of filing; if the petition is filed in person, by hand delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the ARB. Copies of the petition for review must be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. (b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless and until the ARB issues an order adopting the [[Page 70625]] decision, except that any order of reinstatement will be effective while review is conducted by the ARB, unless the ARB grants a motion by the respondent to stay that order based on exceptional circumstances. The ARB will specify the terms under which any briefs are to be filed. The ARB will review the factual determinations of the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no timely petition for review is filed, the resulting final order is not subject to judicial review. (c) The final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the date of the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision will also be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party. (d) If the ARB concludes that the respondent has violated the law, the ARB will issue a final order providing relief to the complainant. The final order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to the complainant's former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. (e) If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint was frivolous or was brought in bad faith, the ARB may award to the respondent reasonable attorney fees, not exceeding $1,000. Subpart C--Miscellaneous Provisions Sec. 1984.111 Withdrawal of complaints, findings, objections, and petitions for review; settlement. (a) At any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order, a complainant may withdraw his or her complaint by notifying the Assistant Secretary, orally or in writing, of his or her withdrawal. The Assistant Secretary then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. The Assistant Secretary will notify the parties (and each party's legal counsel if the party is represented by counsel) of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. A complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order. (b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in Sec. 1984.106, 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, and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's consent and achieves the consent of all three parties. (2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ, or by the ARB if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB, as appropriate. (e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to Sec. 1984.113. Sec. 1984.112 Judicial review. (a) Within 60 days after the issuance of a final order under Sec. Sec. 1984.109 and 1984.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the complainant resided on the date of the violation. (b) A final order is not subject to judicial review in any criminal or other civil proceeding. (c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. Sec. 1984.113 Judicial enforcement. Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under section 18C of the FLSA, 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 or in the United States district court for the District of [[Page 70626]] Columbia. Whenever any person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under section 18C of the FLSA, 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. 1984.114 District court jurisdiction of retaliation complaints. (a) The complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy, either: (1) Within 90 days after receiving a written determination under Sec. 1984.105(a) provided that there has been no final decision of the Secretary; or (2) If there has been no final decision of the Secretary within 210 days of the filing of the complaint. (3) At the request of either party, the action shall be tried by the court with a jury. (b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in Sec. 1984.109. The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including: (1) Reinstatement with the same seniority status that the employee would have had, but for the discharge or retaliation; (2) The amount of back pay, with interest; and (3) Compensation for any special damages sustained as a result of the discharge or retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. (c) Within seven days after filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file- stamped complaint. In all cases, 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. 1984.115 Special circumstances; waiver of rules. In special circumstances not contemplated by the provisions of this part, or for good cause shown, the ALJ or the ARB on review may, upon application, after three-days notice to all parties, waive any rule or issue such orders that justice or the administration of section 18C of the FLSA requires. [FR Doc. 2016-24559 Filed 10-12-16; 8:45 am] BILLING CODE 4510-26-P
![Federal Register / Vol. 81, No. 198 / Thursday, October 13, 2016 / Rules and Regulations 70607
§§ 679.2, 679.5, 679.7, and 679.51 and Table phrase indicated in the ‘‘Remove’’ number of times indicated in the
1b to Part 679 [Amended] column and replace it with the phrase ‘‘Frequency’’ column.
■ 8. At each of the locations shown in indicated in the ‘‘Add’’ column for the
the ‘‘Location’’ column, remove the
Location Remove Add Frequency
§ 679.2 ‘‘Agent’’ (1) .......................... buying station .................................. buying station, tender vessel ....................................... 1
§ 679.2 ‘‘Agent’’ (2) .......................... buying station .................................. buying station or tender vessel ................................... 1
§ 679.2 ‘‘Associated processor’’ ....... buying station .................................. buying station or tender vessel ................................... 3
§ 679.2 ‘‘Shoreside processor’’ ........ buying stations ................................ buying stations, tender vessels ................................... 1
§ 679.5(a)(2)(ii) ................................. or buying station ............................. buying station, or tender vessel .................................. 1
§ 679.5(a)(3)(ii) ................................. catcher vessels and buying stations catcher vessels, buying stations, and tender vessels 1
§ 679.5(a)(3)(iii) ................................ catcher vessel or buying station ..... catcher vessel, buying station, or tender vessel ......... 1
§ 679.5(c)(1)(vi)(B)(4) ....................... or buying station ............................. buying station, or tender vessel .................................. 1
§ 679.5(c)(3)(ii)(A)(3) ........................ or buying station ............................. buying station, or tender vessel .................................. 1
§ 679.5(c)(3)(viii) .............................. buying station .................................. buying station, tender vessel ....................................... 1
§ 679.5(c)(3)(x) ................................. buying station .................................. buying station, tender vessel ....................................... 1
§ 679.5(c)(4)(ii)(A)(3) ........................ or buying station ............................. buying station, or tender vessel .................................. 1
§ 679.5(c)(4)(viii) .............................. buying station .................................. buying station, tender vessel ....................................... 1
§ 679.5(c)(4)(x) ................................. buying station .................................. buying station, tender vessel ....................................... 1
§ 679.5(c)(6)(ii)(A) ............................ buying station .................................. tender vessel ............................................................... 1
§ 679.5(c)(6)(vi) introductory text ..... buying station .................................. tender vessel ............................................................... 1
§ 679.5(c)(6)(vi)(A) ........................... BS ................................................... TV ................................................................................ 1
§ 679.5(c)(6)(vi)(A) ........................... buying station .................................. tender vessel ............................................................... 1
§ 679.5(c)(6)(vi)(B) ........................... buying station .................................. tender vessel ............................................................... 1
§ 679.5(c)(6)(vi)(C) ........................... buying station .................................. tender vessel ............................................................... 1
§ 679.5(c)(6)(vi)(F) ........................... buying station .................................. tender vessel ............................................................... 1
§ 679.5(c)(6)(vi)(H) ........................... buying station .................................. tender vessel ............................................................... 2
§ 679.5(c)(6)(vii) ............................... buying station .................................. tender vessel ............................................................... 1
§ 679.5(c)(6)(viii)(A) .......................... buying station .................................. tender vessel ............................................................... 1
§ 679.5(e)(3)(viii) .............................. buying station .................................. buying station, tender vessel, ...................................... 1
§ 679.5(e)(5)(i) introductory text ....... buying station .................................. buying station or tender vessel ................................... 1
§ 679.5(e)(5)(i)(A)(6) ........................ buying station .................................. buying station or tender vessel ................................... 1
§ 679.5(e)(5)(i)(C)(1) ........................ buying station .................................. buying station or tender vessel ................................... 1
§ 679.5(e)(6)(i) introductory text ....... buying station .................................. tender vessel ............................................................... 1
§ 679.5(e)(6)(i)(B)(1) ........................ buying station .................................. tender vessel ............................................................... 1
§ 679.5(e)(6)(iii) ................................ buying station .................................. tender vessel ............................................................... 1
§ 679.5(f)(1)(v) .................................. buying station .................................. tender vessel ............................................................... 1
§ 679.5(f)(5)(ii) .................................. buying station .................................. buyer station or tender vessel ..................................... 1
§ 679.5(p)(1) ..................................... buying station .................................. tender vessel ............................................................... 1
§ 679.7(d)(4)(i)(C) ............................. buying station .................................. buying station or tender vessel ................................... 1
§ 679.51(e)(3) ................................... or buying station ............................. buying station, or tender vessel .................................. 1
Table 1b to Part 679 ........................ and buying stations ......................... buying stations, and tender vessels ............................ 1
[FR Doc. 2016–24457 Filed 10–12–16; 8:45 am] 1558 of the Affordable Care Act, which Administration (OSHA), investigations
BILLING CODE 3510–22–P added section 18C to the Fair Labor by OSHA, appeals of OSHA
Standards Act to provide protections to determinations to an administrative law
employees who may have been subject judge (ALJ) for a hearing de novo,
DEPARTMENT OF LABOR to retaliation for seeking assistance hearings by ALJs, review of ALJ
under certain affordability assistance decisions by the Administrative Review
Occupational Safety and Health provisions (for example, health Board (ARB) (acting on behalf of the
Administration insurance premium tax credits) or for Secretary of Labor), and judicial review
reporting potential violations of the of the Secretary of Labor’s (Secretary’s)
29 CFR Part 1984 Affordable Care Act’s consumer final decision. It also sets forth the
protections (for example, the Secretary’s interpretations of the
[Docket Number: OSHA–2011–0193] Affordable Care Act whistleblower
prohibition on rescissions). An interim
RIN 1218–AC79 final rule (IFR) governing these provision on certain matters.
provisions and request for comments DATES: This final rule is effective on
Procedures for the Handling of was published in the Federal Register October 13, 2016.
Retaliation Complaints Under Section on February 27, 2013. Thirteen FOR FURTHER INFORMATION CONTACT:
1558 of the Affordable Care Act comments were received; eleven were Anh-Viet Ly, Directorate of
AGENCY: Occupational Safety and Health responsive to the IFR. This rule Whistleblower Protection Programs,
Administration, Labor. responds to those comments and Occupational Safety and Health
Lhorne on DSK30JT082PROD with RULES
ACTION: Final rule.
establishes the final procedures and Administration, U.S. Department of
time frames for the handling of Labor, Room N–4624, 200 Constitution
SUMMARY: This document provides the retaliation complaints under section Avenue NW., Washington, DC 20210;
final text of regulations governing 18C, including procedures and time telephone (202) 693–2199; email:
employee protection (retaliation or frames for employee complaints to the OSHA.DWPP@dol.gov. This is not a toll-
whistleblower) claims under section Occupational Safety and Health free number.
VerDate Sep<11>2014 13:32 Oct 12, 2016 Jkt 241001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\13OCR1.SGM 13OCR1](https://thefederalregister.org/doc/81_FR_70805/page/1.svg)
![70610 Federal Register / Vol. 81, No. 198 / Thursday, October 13, 2016 / Rules and Regulations
interpretative, and that it has complied OSHA has not made any changes to investigators to actively assist parties in
with the applicable requirements for the rule in response to these comments. reaching an agreement, where possible.
promulgating this rule. The 90-day and 210-day time periods See OSHA Whistleblower Investigations
for filing a complaint in district court Manual, at 6–12 (Jan. 28, 2016),
Other General Comments available at http://www.osha.gov/
are established in the statute, and OSHA
OSHA received additional general cannot change them by regulation. 15 OshDoc/Directive_pdf/CPL_02-03-
comments from several commenters. U.S.C. 2087(b)(4). With regard to 007.pdf. Additionally, in August 2015,
Menold expressed general support for O’Grady’s proposal for injunctive relief, OSHA issued a directive allowing its
the IFR. Choate commented that the OSHA notes that the statute already regional offices to implement Early
final rule should use the word ‘‘judge’’ provides for the type of relief requested. Resolution Programs in which, at the
instead of ‘‘ALJ’’ when referring to If it finds reasonable cause to believe parties’ request, OSHA would make a
administrative law judges. After that retaliation occurred, the statute neutral ADR coordinator, unconnected
consideration, the use of the requires OSHA to issue findings and an with the investigation, available to assist
abbreviation ‘‘ALJ’’ has been retained in order containing relief including, where the parties in achieving an early
the final rule as consistent with agency appropriate, reinstatement. 15 U.S.C. resolution to the whistleblower case
practice. 2087(b)(2). Under the statute, OSHA’s either upon the filing of the
NFIB expressed general concern that order of reinstatement is not stayed by whistleblower complaint or at any time
section 18C would lead to an increase the employer’s request for a hearing. Id. up to the completion of OSHA’s
in whistleblower complaints that would In addition, OSHA notes that it is investigation. Alternative Dispute
impair small businesses and expressed unlawful for an employer to engage in Resolution (ADR) Processes for
the hope that OSHA would work to further retaliation against employees Whistleblower Protection Program (Aug.
ensure that its procedures allow an who pursue whistleblower complaints 18, 2015), available at http://
opportunity at the outset for the small under the ACA. See Benjamin v. www.osha.gov/OshDoc/Directive_pdf/
business and the employee to resolve a Citationshares Mgmt., ARB No. 12–029, CPL_02-03-006.pdf.
complaint without having to go through 2013 WL 6385831, at *6 (ARB Nov. 5, With respect to SEIU and AFL–CIO’s
a formal investigation and adjudication. 2013) (noting ‘‘an employee engages in comment that OSHA should require
Beckner supported the protected activity if he attempts to employers to post notices regarding
‘‘implementation of ‘economic provide information of retaliation that section 18C’s protections, OSHA is not
reinstatement’ or ‘front pay’ instead of violates [a whistleblower statute]’’ and adding such a requirement to these
preliminary reinstatement in situations holding that employee’s recording of rules. However, OSHA notes that
w[h]ere the employer and employee information in support of his retaliation posting of a notice regarding
relationship has deteriorated beyond claim was protected); Diaz-Robianas v. whistleblower rights is one of the
Fla. Power & Light Co., DOL No. 92– common non-monetary remedies that
repair’’ and the definition of employee
ERA–10, 1996 WL 171408, at *5 (Off. OSHA orders in meritorious
to include former employees and
Admin. App. Jan. 19, 1996) (noting whistleblower cases. OSHA believes
applicants.
under prior version of Energy that such notices can play a significant
She also commented that the period
Reorganization Act that the statute role in ameliorating the chilling effect
of time that must transpire prior to a that retaliation has on employees who
complainant filing for de novo review in ‘‘requires employers to refrain from
might otherwise report violations of the
district court is too long, as did O’Grady unlawfully motivated employment
law. Additionally, OSHA has worked
who suggested that the alternative discrimination, and a complaint that an
with other agencies that implement the
procedural time periods that precede an employer has violated this requirement
Affordable Care Act to ensure that
employee’s right to file a complaint to is protected’’); McClendon v. Hewlett
information about the whistleblower
federal district court should be Packard, Inc., 2006–SOX–00029, 2006
provision is included in notices and
streamlined in the interest of the WL 6577175 at *76 (ALJ Oct. 5, 2006)
public information that those agencies
complainant who may be in a (holding that filing a Sarbanes-Oxley
provide to employees and employers.
‘‘precarious situation’’ during those Act whistleblower complaint is in itself Finally, OSHA generally agrees with
times. He also commented that if the a protected activity); cf. Young v. CSX Renner’s observation that section 1558
process cannot be streamlined, then Transp., Inc., 42 F. Supp. 3d 388, 2014 of the ACA, like other whistleblower
once OSHA makes an initial WL 4367461, at *5 (N.D.NY. Sept. 4, laws, is a remedial law and should be
determination that there is a valid 2014) (acknowledging employer’s construed and applied to further its
complaint the employee should receive concession that filing a retaliation claim remedial purposes. With regard to
an injunction barring further retaliation. with OSHA is protected under the Renner’s comment regarding the
SEIU and the AFL–CIO commented Federal Railroad Safety Act). If an potential overlap between ERISA
that the rules should include specific employee believes an employer is section 510 and FLSA section 18C,
provisions requiring employers to post retaliating against him for pursuing an OSHA notes that Renner is correct that
notices regarding whistleblower rights ACA whistleblower complaint, the some complainants may have claims
under section 18C. employee should contact OSHA. under both ERISA section 510 and
Finally, Renner noted that section With regard to NFIB’s comments FLSA section 18C. Section 18C’s
1558 of the ACA, like other regarding the impact on small whistleblower protections do not
whistleblower laws, is a remedial law employers and the opportunities replace any protections that a
and should be construed and applied to available for early resolution of whistleblower may have under ERISA
further its remedial purposes. Renner whistleblower complaints, OSHA agrees section 510. Whistleblowers may bring
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also noted there may be some overlap that resolution of whistleblower claims under either or both statutes if
between the protections provided in complaints as early in the investigation their whistleblowing is protected under
ERISA section 510 and FLSA section process as possible is often the best both. However, in order to pursue a
18C and asked that the Department’s outcome for both parties. Accordingly, claim under section 18C either in
comments on the final rule address this OSHA’s Whistleblower Investigations district court or before the Department
issue. Manual encourages whistleblower of Labor (DOL), the complainant must
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file a complaint with OSHA within 180 that ‘‘[a]n employee who believes that Civil Rights Act of 1964 includes former
days of the alleged adverse action. See he or she has been discharged or employees).
29 CFR 1984.103(d). otherwise discriminated against by any No comments were made on this
employer in violation of this section’’ section, other than those discussed in
Subpart A—Complaints, Investigations, the general comments suggesting
Findings and Preliminary Orders may file a complaint with the Secretary
of Labor, (emphasis added). Section additional definitions. OSHA made a
Section 1984.100 Purpose and Scope 18C’s broad protection of ‘‘any minor clarification to the definition of
This section describes the purpose employee’’ from retaliation and ‘‘respondent’’ and added definitions of
and scope of the regulations provision of a cause of action against Exchange and advance payments of the
implementing FLSA section 18C and ‘‘any employer’’ for retaliation makes premium tax credit or APTC but has
provides an overview of the procedures clear that the parties need not have a made no other substantive changes to
covered by these regulations. OSHA has current employment relationship. this section.
added a statement in subparagraph (b) Section 18C’s broad protections, like the Section 1984.102 Obligations and
noting that these rules set forth the protections in section 15(a)(3), contrast Prohibited Acts
Secretary’s interpretations of section with the narrower protections of
This section describes the activities
18C on certain statutory issues. AFL– sections 6 and 7 of the FLSA. Sections that are protected under section 18C of
CIO commented that OSHA should add 6 and 7 provide respectively that an the FLSA, and the conduct that is
a discussion of PHSA section 2706(b) to employer must pay at least the prohibited in response to any protected
this section. However for the reasons minimum wage to ‘‘each of his activities. Section 18C(a)(1) protects any
previously explained, OSHA declines to employees’’ and must pay overtime to employee from retaliation because the
add such a discussion. ‘‘any of his employees,’’ and thus employee has ‘‘received a credit under
Section 1984.101 Definitions require a current employment section 36B of the Internal Revenue
relationship. See 29 U.S.C. 206(a) and Code of 1986 or a subsidy under section
This section includes general (b), 29 U.S.C. 207(a)(1) and (2). Congress
definitions applicable to FLSA section 1402 of this Act.’’ The reference to ‘‘a
chose to use the broad term ‘‘any’’ to subsidy under section 1402 of this Act’’
18C. The definitions of the terms modify employee and employer in
‘‘employer,’’ ‘‘employee,’’ and ‘‘person’’ in section 18C(a)(1) refers to receipt of
sections 18C(a) and (b), rather than a cost-sharing reduction under the
from section 3 of the FLSA, 29 U.S.C. providing more restrictively that, for
203, apply to these rules and are Affordable Care Act.
example, ‘‘no employer shall discharge Under section 18C(a)(2), an employer
included here. or in any manner discriminate against
Consistent with the Secretary’s may not retaliate against an employee
any of his employees’’ or ‘‘an employee because the employee ‘‘provided,
interpretation of the term ‘‘employee’’ in who believes that he or she has been
the other whistleblower statutes caused to be provided, or is about to
discharged or otherwise discriminated provide or cause to be provided to the
administered by OSHA 1 and with the against by his employer’’ may file a
Secretary’s interpretation of the term employer, the federal government, or
complaint with the Secretary of Labor. the attorney general of a state
‘‘employee’’ under the anti-retaliation
The Supreme Court has made clear that information relating to any violation of,
provision found at section 15(a)(3) of
‘‘any’’ has an expansive meaning that or any act or omission the employee
the FLSA, 29 U.S.C. 215(a)(3),2 the
does not limit the word it modifies. See, reasonably believes to be a violation of,
definition of the term ‘‘employee’’ in
e.g., Kasten v. Saint-Gobain any provision of this title (or an
section 1984.101 also includes former
Performance Plastics Corp., 131 S. Ct. amendment made by this title).’’ Section
employees and applicants for
1325, 1332 (2011) (noting that the use of 18C also protects employees who testify,
employment. This interpretation is
‘‘any’’ in the phrase ‘‘filed any assist or participate in proceedings
supported by section 18C’s plain
complaint’’ in section 15(a)(3) of the concerning such violations or are about
language which prohibits retaliation
against ‘‘any employee’’ and provides FLSA ‘‘suggests a broad interpretation to do so. Sections 18C(a)(3) and (4), 29
that would include an oral complaint’’); U.S.C. 218C(a)(3) and (4). Finally,
1 See, e.g., 29 CFR 1980.101(g) (defining employee U.S. v. Gonzales, 520 U.S. 1, 5 (1997) section 18C(a)(5) prohibits retaliation
to include former employees and applicants under (‘‘any’’ has an expansive meaning, that because an employee ‘‘objected to, or
the whistleblower provisions in the Sarbanes-Oxley is, ‘‘one or some indiscriminately of refused to participate in, any activity,
Act); 29 CFR 1978.101 (Surface Transportation whatever kind’’) (internal citations policy, practice, or assigned task that
Assistance Act); 29 CFR 1981.101 (Pipeline Safety
Improvement Act); 29 CFR 1982.101(d) (Federal omitted). In addition, the explicit the employee (or other such person)
Railroad Safety Act and the National Transit inclusion of reinstatement and reasonably believed to be in violation of
Systems Security Act); 29 CFR 1983.101(h) preliminary reinstatement (both of any provision of this title (or
(Consumer Product Safety Improvement Act). which can only be awarded to former
2 See Brief for the Secretary of Labor and the
amendment), or any order, rule,
Equal Employment Opportunity Commission as
employees) among the remedies regulation, standard, or ban under this
Amicus Curiae, Dellinger v. Science Applications available for whistleblowers under title (or amendment).’’ References to
Int’l Corp., No. 10–1499 (4th Cir. Oct. 15, 2010) section 18C, which incorporates 15 ‘‘this title’’ in section 18C(a)(2) and (5)
(explaining that the phrase ‘‘any employee’’ in U.S.C. 2087(b), confirms that the refer to title I of the Affordable Care Act.
section 15(a)(3) of the FLSA does not limit an
individual’s retaliation claims to her current
complainant and the respondent need In order to have a ‘‘reasonable belief’’
employer, but rather extends protection to not have a current employment under sections 18C(a)(2) and (5) of the
prospective employees from retaliation for engaging relationship in order for the FLSA, a complainant must have both a
in protected activity), and Brief of the Secretary of complainant to have a claim under subjective, good faith belief and an
Labor and Equal Employment Opportunity
section 18C. See Dellinger v. Science objectively reasonable belief that the
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Commission as Amicus Curiae, Dellinger v. Science
Applications Int’l Corp., No. 10–1499 (4th Cir. Sept. Applications Int’l Corp., 649 F.3d at 230 complained-of conduct violates one of
9, 2011) (same); but see Dellinger v. Science n.2 (section 15(a)(3) of the FLSA the enumerated categories of law. See
Applications Int’l Corp., 649 F.3d 226, 229–31 & n.2 protects former employees); cf. Lockheed Martin Corp. v. Admin.
(4th Cir. 2011) (accepting that former employees are
protected from retaliation under section 15(a)(3) of
Robinson v. Shell Oil Co., 519 U.S. 337 Review Bd., 717 F.3d 1121, 1132 (10th
the FLSA but holding that applicants for (1997) (term ‘‘employees’’ in anti- Cir. 2013) (discussing the reasonable
employment are not). retaliation provision of Title VII of the belief standard under analogous
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language in the Sarbanes-Oxley Act purchased through the Exchange, and Exchange. OSHA’s regulations under
whistleblower provision, 18 U.S.C. the prices that the Exchange provides to section 18C and case law under other
1514A); Wiest v. Lynch, 710 F.3d 121, the employee for plans take into account anti-retaliation statutes make clear that
131–32 (3d Cir. 2013) (same); Sylvester the employee’s eligibility for such an employer may not retaliate against an
v. Parexel Int’l LLC, ARB No. 07–123, assistance. AFL–CIO and SEIU employee when the employer knows or
2011 WL 2165854, at *12 (ARB May 25, commented that OSHA should clarify suspects that the employee has engaged
2011) (same). The requirement that the that FLSA section 18C(a)(1) protects in activity protected by the statute. See
complainant have a subjective, good those who take the preliminary steps, 29 CFR 1984.104(e); see also Reich v.
faith belief is satisfied so long as the such as gathering information, that are Hoy Shoe, Inc., 32 F.3d 361, 368 (8th
complainant actually believed that the needed to apply for health insurance Cir. 1994) (noting under section 11(c) of
conduct complained of violated the coverage on an Exchange and to apply the Occupational Safety and Health Act
relevant law. See Sylvester, 2011 WL for APTC. These commenters were (11(c)) that ‘‘[i] t seems clear to this
2165854, at *12 (citing Harp v. Charter particularly concerned about protecting Court that an employer that retaliates
Commc’ns, 558 F.3d 722, 723 (7th Cir. employees who ask their employers against an employee because of the
2009)); Day v. Staples, Inc., 555 F.3d 42, about the health care coverage offered employer’s suspicion or belief that the
54 n.10 (1st Cir. 2009) (quoting Welch v. by their employers. These commenters employee filed an OSHA complaint has
Chao, 536 F.3d 269, 277 n.4 (4th Cir. noted that to apply for APTC for health as surely committed a violation of
2008) (‘‘Subjective reasonableness insurance on an Exchange, individuals § 11(c) as an employer that fires an
requires that the employee ‘actually must provide certain information about employee because the employer knows
believed the conduct complained of their available employer-sponsored that the employee filed an OSHA
constituted a violation of pertinent insurance options, if any. HHS has complaint’’); Saffels v. Rice, 40 F.3d
law.’’’). The objective reasonableness of developed a form for employees to use 1546, 1549 (8th Cir. 1994) (retaliation is
a complainant’s belief ‘‘is evaluated in gathering information about any unlawful under the FLSA if based on an
based on the knowledge available to a available employer-sponsored insurance employer’s mistaken belief that
reasonable person in the same factual options and this form instructs employees engaged in FLSA-protected
circumstances with the same training employees to get the information that activity); Brock v. Richardson, 812 F.2d
and experience as the aggrieved they need from their employer. As SEIU 121, 124–25 (3d Cir. 1987) (same).
employee.’’ Rhinehimer v. U.S. Bancorp explained ‘‘[a]s currently proposed, the Similarly, an employer retaliates
Investments, Inc., 787 F.3d 797, 811 (6th system puts the burden on individuals against an employee when the employer
Cir. 2015) (internal citations and to seek coverage information from their threatens to take action if the employee
quotations omitted); Sylvester, 2011 WL employer . . . in order to complete the engages in activity protected under
2165854, at *12. However, the exchange application. Because of this, it section 18C. See 29 CFR 1984.102(a)
complainant need not show that the is imperative that the protection against (defining retaliation to include threats
conduct complained of constituted an retaliation extend to any preliminary and intimidation). Indeed, courts have
actual violation of law. Pursuant to this actions taken to receive the tax credit.’’ long recognized that acts taken in
standard, an employee’s whistleblower OSHA agrees that these commenters anticipation of an employee’s protected
activity is protected when it is based on raise compelling concerns regarding the activity to dissuade such activity can be
a reasonable, but mistaken, belief that a potential for retaliation against actionable under the anti-retaliation
employees who seek information from provisions of many statutes. See, e.g.,
violation of the relevant law has
their employer that they need to receive Sauers v. Salt Lake County, 1 F.3d 1122,
occurred or is likely to occur. See
APTC when they purchase health 1128 (10th Cir. 1993) (noting under Title
Sylvester, 2011 WL 2165854, at *13
insurance through an Exchange. OSHA VII’s anti-retaliation provision that
(citing Welch, 536 F.3d at 277); Allen v.
declines to change the text of the rule, ‘‘[a]ction taken against an individual in
Admin. Review Bd., 514 F.3d 468, 476–
which generally mirrors the statutory anticipation of that person engaging in
77 (5th Cir. 2008); Melendez v. Exxon
language, in response to these protected opposition to discrimination
Chemicals Americas, ARB No. 96–051,
comments. However, OSHA believes is no less retaliatory than action taken
slip op. at 21 (ARB July 14, 2000) (‘‘It
that, in certain circumstances, the after the fact’’); Hashimoto v. Bank of
is also well established that the
existing case law under the other Hawaii, 999 F.2d 408, 411 (9th Cir.
protection afforded whistleblowers who whistleblower protection statutes that 1993) (noting that anticipatory employer
raise concerns regarding statutory OSHA administers supports protection action that ‘‘discourages the whistle
violations is contingent on meeting the for employees who seek information blower before the whistle is blown’’
aforementioned ‘reasonable belief’ from their employer regarding would violate ERISA anti-retaliation
standard rather than proving that actual employer-sponsored health coverage in statute, even though the employee has
violations have occurred.’’). order to receive APTC for health not yet filed any formal complaint);
OSHA received several comments on coverage through an Exchange. Perez v. Fatima/Zahra, Inc., No. 14–
this section of the interim final rule. For When an employer believes that an 2337, 2014 WL 2154092 (N.D. Cal. May
the reasons discussed below, the only employee has received a premium tax 22, 2014) (issuing temporary restraining
change OSHA has made to this section credit or cost-sharing reduction and order against employer who threatened
is to revise the section to clarify that, takes action based on that belief, the employees that they would be fired for
under section 18C(a)(1), an employee employer’s retaliatory motive is the talking to investigators); Solis v. SCA
has ‘‘received’’ a premium tax credit or same whether it arises from an Restaurant Corp., 938 F. Supp. 2d 380,
cost-sharing reduction not only when a employee’s inquiry regarding employer- 389 (E.D.N.Y. 2013) (finding retaliation
premium tax credit is allowed on the provided coverage in anticipation of where employer threatened employees
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individual’s tax return but also when an applying for APTC or a cost-sharing with termination in anticipation of their
Exchange finds the employee eligible for reduction through the Exchange, or testimony for Secretary of Labor).
APTC or for a cost-sharing reduction. At whether it arises once the applicable Thus, OSHA believes that an
that point, the employee may apply Exchange notifies the employer that the employee’s inquiry to his or her
financial assistance to reduce his or her employee has qualified for a APTC or a employer to gather the information
share of the premium cost for coverage cost-sharing reduction through the necessary to apply for APTC for
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coverage on the Exchange may trigger violates section 18C if it threatens complaint may fail. See Ledure v. BNSF
protection under section 18C if the employees with reductions in hours in Rwy. Co., ARB No. 13–044, 2015 WL
employee can show that either the order to dissuade them from applying 4071574, at *6 (ARB Jun. 2, 2015)
employer’s belief that the employee had for APTC for health insurance on an (affirming ALJ’s conclusion that
received a premium tax credit, or the Exchange. See, e.g., Sauers, 1 F.3d at retaliation did not occur where
employer’s desire to deter the employee 1128. OSHA declines to change the rule employer’s refusal to allow employee to
from taking any further action that in response to Renner’s comment return to work was based on reasonable,
would result in the employee’s because OSHA believes that this issue is but mistaken, belief that employee was
receiving a premium tax credit, adequately addressed in the case law not medically qualified to return to
contributed to the employer’s action under analogous anti-retaliation work and not on protected
against the employee. provisions and the rule has been drafted whistleblowing).
Renner commented that the to be consistent with OSHA’s rules With regard to the Chamber’s
regulations should clarify that an under other whistleblower-protection comment that the rule should be
employer’s decision to reduce an statutes. changed to limit the definition of
employee’s hours of work to evade The Chamber commented that OSHA ‘‘intimidation,’’ OSHA believes that the
application of the Affordable Care Act is should limit the definition of circumstances in which intimidation
unlawful under FLSA section 18C intimidation as a form of retaliation constitutes an adverse action under
noting that ‘‘the reduction of hours asserting that the term ‘‘intimidation’’ section 18C are adequately addressed by
directly reduces the employee’s wages left undefined is overly broad and that case law under the Department’s other
and is materially adverse.’’ ‘‘[t]he conduct that is considered whistleblower statutes. While
As explained earlier in this preamble, intimidating should not be actionable intimidation may be linked with some
under section 4980H of the Code, unless it results in a tangible adverse other form of adverse action,
applicable large employers must either employment action, such as demotion, intimidation that is more than trivial
offer health coverage that is affordable negative performance review, failure to may, standing alone, qualify as adverse
and that provides minimum value to promote, assignment of undesirable job action. The phrase ‘‘terms, conditions,
their full-time employees (and offer duties, a pattern of harassment, and or other privileges of employment’’ does
coverage to their dependents), or be termination. not indicate that actionable adverse
subject to assessment of an employer The Chamber further commented that action is limited to ‘‘economic’’ or
shared responsibility payment by the equitable treatment of the different ‘‘tangible’’ conditions of employment.
IRS if at least one full-time employee parties requires OSHA to apply a See Meritor Savings Bank, FSB v.
receives the premium tax credit. In reasonable belief standard to Vinson, 477 U.S. 57, 64 (1986)
general, for purposes of section 4980H respondents as well as to complainants. (interpreting similar language in Title
of the Code, a full-time employee is an BCBS raised similar concerns regarding VII of the Civil Rights Act of 1964); see
employee with an average of at least 30 the IFR, commenting that OSHA should also Menendez v. Halliburton, Inc., ARB
hours of service per week. To the extent apply the final rule keeping in mind the Nos. 09–002, 09–003, 2011 WL 4439090
that Renner’s comment implies that the unique challenges of implementing the at *11–12 (Sept. 13, 2011), aff’d,
whistleblower protections apply if an Affordable Care Act, which may make it Halliburton, Inc. v. Admin. Rev. Bd.,
employer reduces an employee’s hours difficult to determine whether an 771 F.3d 254 (5th Cir. 2014)
of service to avoid or reduce liability employer’s or issuer’s actions are (interpreting similar language in the
under section 4980H of the Code, OSHA justified by the Affordable Care Act Sarbanes-Oxley Act). Rather, adverse
disagrees because section 4980H of the guidance in effect at the time. action is action that a reasonable
Code does not prohibit an employer After consideration, OSHA declines to employee would find ‘‘materially
from reducing an employee’s hours of amend the rule in response to the adverse,’’ that is, the action is more than
service in order to avoid a potential Chamber and BCBS’s comments. With trivial. Specifically, the evidence must
employer shared responsibility regard to the Chamber’s suggestion that show that the action at issue could well
payment. OSHA adopt a reasonable belief have dissuaded a reasonable worker
However, to the extent that Renner is requirement for respondents as well as from engaging in protected activity. See
commenting that reducing work hours complainants and BCBS’s comment that Burlington Northern & Santa Fe R. R.
in retaliation for activity protected an employer or issuer’s actions may be Co. v. White, 548, U.S. 53, 68 (2006);
under section 18C is unlawful, OSHA justified based on the Affordable Care Halliburton, 771 F.3d at 261–62
agrees. For instance, if an employer Act guidance in effect at the time, (affirming ARB’s finding of adverse
reduces the hours of an employee that OSHA notes that the statutory language action that was not a tangible
the employer knows or suspects of includes no ‘‘reasonable belief’’ employment action); Williams v.
receiving a premium tax credit or standard for employers. However, American Airlines, ARB No. 09–018,
subsidy, the employer’s actions may OSHA believes that case law under 2010 WL 5535815 at *6–8 (Dec. 29,
violate section 18C if the employee’s analogous statutes adequately addresses 2010) (discussing adverse action under
receipt of the premium tax credit or these concerns. For example, the fact the Department’s whistleblower
subsidy was a contributing factor in the that an employer is following the ACA statutes). Thus, under this case law,
employer’s decision to reduce the hours, guidance available at the time that an unlawful retaliation would include
and the employer is unable to show by employee blows the whistle may impact intimidating an employee for engaging
clear and convincing evidence that it whether the employee can show that he in protected activity when the
would have taken the same action in the had a reasonable belief that the intimidation would dissuade a
absence of that protected activity. See employer was violating the law. reasonable employee from engaging in
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29 CFR 1984.104(e) (explaining the Similarly, if an employer takes an action protected activity.
burdens of proof in Affordable Care Act against an employee based on a
whistleblower cases); see also 29 U.S.C. reasonable, but mistaken, belief of Section 1984.103 Filing of Retaliation
218C(b)(1) (incorporating the burdens of misconduct or another circumstance Complaint
proof in 15 U.S.C. 2087(b)(2)(B)). In unrelated to protected activity, the This section explains the
addition, OSHA notes that an employer employee’s subsequent whistleblower requirements for filing a retaliation
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complaint under section 18C. To be respondent does not show clear and shortly after the protected activity, or at
timely, a complaint must be filed within convincing evidence that it would have the first opportunity available to the
180 days of when the alleged violation taken the same action in the absence of respondent, giving rise to the inference
occurs. Under Delaware State College v. the alleged protected activity, OSHA that it was a contributing factor in the
Ricks, 449 U.S. 250, 258 (1980), an conducts an investigation to determine adverse action. See, e.g., Porter v. Cal.
alleged violation occurs when the whether there is reasonable cause to Dep’t of Corrs., 419 F.3d 885, 895 (9th
retaliatory decision has been both made believe that retaliation has occurred. See Cir. 2005) (holding that years between
and communicated to the complainant. 15 U.S.C. 2087(b)(2); 29 CFR the protected activity and the retaliatory
In other words, the limitations period 1984.104(e). actions did not defeat a finding of a
commences once the employee is aware No comments were received on this causal connection where the defendant
or reasonably should be aware of the section of the IFR. However, in addition did not have the opportunity to retaliate
employer’s decision. E.E.O.C. v. United to adding the example noted above of until he was given responsibility for
Parcel Serv., Inc., 249 F.3d 557, 561–62 when the time for filing a complaint making personnel decisions).
(6th Cir. 2001). However, the time for might be tolled, OSHA changed the term If the complainant does not make the
filing a complaint may be tolled for ‘‘email’’ in paragraph (d) to ‘‘electronic required prima facie showing, the
reasons warranted by applicable case communication transmittal’’ because investigation must be discontinued and
law. For example, OSHA may consider OSHA has published an on-line the complaint dismissed. See Trimmer
the time for filing a section 18C complaint form on its Web site, http:// v. U.S. Dep’t of Labor, 174 F.3d 1098,
complaint equitably tolled if the www.whistleblowers.gov/complaint_ 1101 (10th Cir. 1999) (noting that the
complainant mistakenly files a page.html . burden-shifting framework of the Energy
complaint with another agency instead Reorganization Act of 1974, which is the
Section 1984.104 Investigation
of OSHA within 180 days after same framework now applicable to
becoming aware of the alleged violation. This section describes the procedures section 18C of the FLSA, serves a
OSHA has revised this section of the that apply to the investigation of ‘‘gatekeeping function’’ that ‘‘stem[s]
rule to note this example of when the complaints under section 18C. frivolous complaints’’). Even in cases
time for filling a complaint would be Paragraph (a) of this section outlines the where the complainant successfully
equitably tolled. procedures for notifying the parties and makes a prima facie showing, the
Complaints filed under section 18C of appropriate federal agencies of the investigation must be discontinued if
the FLSA need not be in any particular complaint and notifying the respondent the respondent demonstrates, by clear
form. They may be either oral or in of its rights under these regulations. and convincing evidence, that it would
writing. When a complaint is made Paragraph (b) describes the procedures have taken the same adverse action in
orally, OSHA will put the complaint in for the respondent to submit its the absence of the protected activity.
writing. If the complainant is unable to response to the complaint. Paragraph (c) Thus, OSHA must dismiss a complaint
file the complaint in English, OSHA describes the sharing of information under section 18C of the FLSA and not
will accept the complaint in any submitted to OSHA during the investigate further if either: (1) The
language. With the consent of the investigation and the opportunity that complainant fails to make the prima
employee, complaints may be filed by each party will have to provide facie showing that protected activity
any person on the employee’s behalf. information to OSHA. Paragraph (d) of was a contributing factor in the adverse
OSHA notes that a complaint of this section discusses confidentiality of action; or (2) the respondent rebuts that
retaliation filed with OSHA under the information provided during showing by clear and convincing
Affordable Care Act is not a formal investigations. Paragraph (e) of this evidence that it would have taken the
document and need not conform to the section sets forth the applicable burdens same adverse action absent the
pleading standards for complaints filed of proof. Paragraph (f) describes the protected activity.
in federal district court articulated in procedures OSHA will follow prior to Assuming that an investigation
Bell Atlantic Corp. v. Twombly, 550 U.S. the issuance of findings and a proceeds beyond the gatekeeping phase,
544 (2007) and Ashcroft v. Iqbal, 556 preliminary order when OSHA has the statute requires OSHA to determine
U.S. 662 (2009). See Sylvester v. Parexel reasonable cause to believe that a whether there is reasonable cause to
Int’l, Inc., ARB No. 07–123, 2011 WL violation has occurred. believe that protected activity was a
2165854, at *9–10 (ARB May 26, 2011) Section 18C of the FLSA incorporates contributing factor in the alleged
(holding whistleblower complaints filed the burdens of proof set forth in CPSIA, adverse action. A contributing factor is
with OSHA under analogous provisions 15 U.S.C. 2087(b). That statute requires ‘‘any factor which, alone or in
in the Sarbanes-Oxley Act need not that a complainant make an initial connection with other factors, tends to
conform to federal court pleading prima facie showing that protected affect in any way the outcome of the
standards). Rather, the complaint filed activity was ‘‘a contributing factor’’ in decision.’’ Marano v. Dep’t of Justice, 2
with OSHA under this section simply the adverse action alleged in the F.3d 1137, 1140 (Fed. Cir. 1993)
alerts OSHA to the existence of the complaint, i.e., that the protected (internal quotation marks, emphasis and
alleged retaliation and the activity, alone or in combination with citation omitted) (discussing the
complainant’s desire that OSHA other factors, affected in some way the Whistleblower Protection Act, 5 U.S.C.
investigate the complaint. Upon the outcome of the employer’s decision. The 1221(e)(1)); see, e.g., Lockheed Martin
filing of a complaint, OSHA is to complainant will be considered to have Corp., 717 F.3d at 1136. For protected
determine whether ‘‘the complaint, met the required burden if the activity to be a contributing factor in the
supplemented as appropriate by complaint on its face, supplemented as adverse action, ‘‘‘a complainant need
interviews of the complainant’’ alleges appropriate through interviews of the not necessarily prove that the
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‘‘the existence of facts and evidence to complainant, alleges the existence of respondent’s articulated reason was a
make a prima facie showing.’’ 29 CFR facts and either direct or circumstantial pretext in order to prevail,’’’ because a
1984.104(e). As explained in evidence to meet the required showing. complainant alternatively can prevail by
§ 1984.104(e), if the complaint, A complainant’s burden may be showing that the respondent’s ‘‘reason,
supplemented as appropriate, contains a satisfied, for example, if he or she shows while true, is only one of the reasons for
prima facie showing, and the that the adverse action took place its conduct,’’ and that another reason
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was the complainant’s protected suspicion, such as at § 1984.104(e) exceeding $1,000 from the ALJ,
activity. See Klopfenstein v. PCC Flow where it provides that a ‘‘complaint, regardless of whether the respondent
Techs. Holdings, Inc., ARB No. 04–149, supplemented as appropriate by has filed objections, if the complaint
2006 WL 3246904, at *13 (ARB May 31, interviews of the complainant, must was frivolous or brought in bad faith. If
2006) (quoting Rachid v. Jack in the allege the existence of facts and no objections are filed within 30 days of
Box, Inc., 376 F.3d 305, 312 (5th Cir. evidence to make a prima facie showing receipt of the findings, the findings and
2004)) (discussing contributing factor that protected activity was a any preliminary order of the Assistant
test under the Sarbanes-Oxley contributing factor in the alleged Secretary become the final decision and
whistleblower provision), aff’d sub adverse action including that ‘‘[t]he order of the Secretary. If objections are
nom. Klopfenstein v. Admin. Review respondent knew or suspected that the timely filed, any order of preliminary
Bd., U.S. Dep’t of Labor, 402 F. App’x employee engaged in the protected reinstatement will take effect, but the
936, 2010 WL 4746668 (5th Cir. 2010). activity . . . .’’ remaining provisions of the order will
If OSHA finds reasonable cause to The Chamber commented that the IFR not take effect until administrative
believe that the alleged protected improperly treated respondents and proceedings are completed.
activity was a contributing factor in the complainants differently by allowing This section also provides that
adverse action, OSHA may not order complainants to receive copies of interest on back pay will be calculated
relief if the employer demonstrates by documents submitted by the using the interest rate applicable to
‘‘clear and convincing evidence’’ that it respondent, subject to privacy and underpayment of taxes under 26 U.S.C.
would have taken the same action in the confidentiality standards, but providing 6621 and will be compounded daily. In
absence of the protected activity. See 15 no similar entitlement for respondents.
the Secretary’s view, 26 U.S.C. 6621
U.S.C. 2087(b)(2)(B)(ii). The ‘‘clear and OSHA believes this is incorrect. The IFR
provides the appropriate rate of interest
convincing evidence’’ standard is a and the statute both provide the
to ensure that victims of unlawful
higher burden of proof than a respondent the right to receive the
retaliation under section 18C of the
‘‘preponderance of the evidence’’ substance of the evidence supporting
FLSA are made whole. The Secretary
standard. Clear and convincing the complaint, and OSHA’s
has long applied the interest rate in 26
evidence is evidence indicating that the investigation procedures, which ensure
U.S.C. 6621 to calculate interest on back
thing to be proved is highly probable or that each party’s submissions are
pay in whistleblower cases. See Doyle v.
reasonably certain. See, e.g., Clarke v. available to the other party during the
Hydro Nuclear Servs., ARB Nos. 99–041,
Navajo Express, Inc., ARB No. 09–114, investigation, are further explained in
2011 WL 2614326, at *3 (ARB June 29, OSHA’s Whistleblower Investigations 99–042, 00–012, 2000 WL 694384, at
2011) (discussing burdens of proof Manual. Nonetheless, to clarify that *14–15, 17 (ARB May 17, 2000); see also
under analogous whistleblower respondents and complainants are Cefalu v. Roadway Express, Inc., ARB
provision in Surface Transportation afforded equal access to each other’s No. 09–070, 2011 WL 1247212, at *2
Assistance Act). submissions during the OSHA (ARB Mar. 17, 2011); Pollock v. Cont’l
BCBS and the Chamber commented investigation, OSHA has revised Express, ARB Nos. 07–073, 08–051,
on this section. BCBS commented that paragraph (c) of this section to reflect its 2010 WL 1776974, at *8 (ARB Apr. 10,
the regulations should provide current information sharing practices. 2010); Murray v. Air Ride, Inc., ARB No.
procedures for instances when the Also, throughout this section, minor 00–045, 2000 WL 1920347 at *6 (ARB
complaint names multiple respondents changes were made as needed to clarify Dec. 29, 2000). Section 6621 of the Code
and suggests amending the remaining provisions without provides the appropriate measure of
§ 1984.104(e)(2)(ii) to read as follows: changing their meaning. compensation under section 18C and
‘‘Each respondent knew or suspected other DOL-administered whistleblower
. . . .’’ BCBS also commented that Section 1984.105 Issuance of Findings statutes because it ensures the
OSHA should dismiss complaints and Preliminary Orders complainant will be placed in the same
against respondents who do not have This section provides that, on the position he or she would have been in
the requisite knowledge of alleged basis of information obtained in the if no unlawful retaliation occurred. See
retaliation to justify continuing the investigation, the Assistant Secretary Ass’t Sec’y v. Double R. Trucking, Inc.,
complaint process against them, and will issue, within 60 days of the filing ARB No. 99–061, 1999 WL 529752 at *4
clarify in § 1984.104(e)(3) that a of a complaint, written findings (ARB July 16, 1999) (interest awards
showing that the adverse action took regarding whether or not there is pursuant to Code section 6621 are
place shortly after the protected activity reasonable cause to believe that the mandatory elements of complainant’s
would not give rise to the inference that complaint has merit. If the findings are make-whole remedy). Code section 6621
it was a contributing factor in the that there is reasonable cause to believe provides a reasonably accurate
adverse action in instances when the that the complaint has merit, the prediction of market outcomes (which
respondent did not know or suspect that Assistant Secretary will order represents the loss of investment
the complainant engaged in a protected appropriate relief, including opportunity by the complainant and the
activity. preliminary reinstatement, affirmative employer’s benefit from use of the
OSHA declines to make these changes action to abate the violation, back pay withheld money) and thus provides the
because they are unnecessary and could with interest, compensatory damages, complainant with appropriate make-
cause confusion. The IFR already does attorney and expert witness fees, and whole relief. See E.E.O.C. v. County of
not exclude multiple respondents and costs. The findings and, where Erie, 751 F.2d 79, 82 (2d Cir. 1984)
adding the word ‘‘each’’ to appropriate, preliminary order, advise (‘‘[s]ince the goal of a suit under the
§ 1984.104(e)(2)(ii) could be construed the parties of their right to file [Fair Labor Standards Act] and the
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as allowing liability only when all objections to the findings of the Equal Pay Act is to make whole the
respondents have the requisite Assistant Secretary and to request a victims of the unlawful underpayment
knowledge or suspicion. Additionally, hearing. The findings and, where of wages, and since [Code section 6621]
the IFR already provides a basis for appropriate, preliminary order, also has been adopted as a good indicator of
dismissing claims against respondents advise the respondent of the right to the value of the use of money, it was
who lack requisite knowledge or request an award of attorney fees not well within’’ the district court’s
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![70616 Federal Register / Vol. 81, No. 198 / Thursday, October 13, 2016 / Rules and Regulations
discretion to calculate prejudgment when she pays more into the system, the same position that he or she would have
interest under Code section 6621); New rate of return diminishes at higher been in absent the retaliation. The
Horizons for the Retarded, Inc., 283 annual incomes.’’ Therefore, a statute explicitly requires that the
NLRB No. 181, 1987 WL 89652, at *2 complainant may ‘‘receive a smaller Secretary order the employer ‘‘to
(NLRB May 28, 1987) (observing that monthly benefit when a multiyear reinstate the complainant to his or her
‘‘the short-term Federal rate [used by award is posted to 1 year rather than former position together with
Code section 6621] is based on average being allocated to the appropriate compensation (including back pay) and
market yields on marketable Federal periods, even if social security taxes restore the terms, conditions, and
obligations and is influenced by private were paid on the entire amount.’’ Id. privileges associated with his or her
economic market forces’’). Similarly, as The purpose of a make-whole remedy employment.’’ 15 U.S.C.
explained in the IFR, daily such as back pay is to restore the 2087(b)(3)(B)(ii). If the employee’s
compounding of the interest award complainant to the same position the original position is not available, the
ensures that complainants are made complainant would have occupied employer may return the employee to an
whole for unlawful retaliation in absent the prohibited retaliation. That equivalent position. See, e.g., Hobby v.
violation of section 18C. See 78 FR purpose is not achieved when the Georgia Power Co., ARB Nos. 98–166,
13227. complainant suffers the disadvantages 98–169, 2001 WL 168898 at *10 (ARB
Finally, this section has been revised described above. The Secretary believes Feb. 9, 2001) (noting that ‘‘[w]hile the
to note that when ordering back pay, that requiring proper social security remedies section of the Energy
OSHA also will require the respondent allocation is necessary to achieve the Reorganization Act whistleblower
to submit the appropriate make-whole purpose of a back pay provision states that the Secretary ‘shall
documentation to the Social Security award. In addition to adding the . . . reinstate the [prevailing]
Administration allocating the back pay requirement that the respondent submit complainant to his former position
to the appropriate period. Requiring the the appropriate documentation to the . . .’, this text has been construed to
reporting of back pay allocation to the Social Security Administration mean reinstatement to the same or a
Social Security Administration serves allocating the back pay to the similar position to the job that was
appropriate period, OSHA has made formerly held’’) (emphasis original,
the remedial purposes of section 18C by
minor changes throughout this section citations omitted). Because the statutory
ensuring that employees subjected to
as needed to clarify the provision text and the applicable case law make
retaliation are truly made whole. See
without changing its meaning. clear that reinstatement must restore the
Don Chavas, LLC d/b/a Tortillas Don OSHA received two comments on the
Chavas, 361 NLRB No. 10, 2014 WL complainant to the position he would
remedy of reinstatement provided for in have occupied absent the retaliation or
3897178, at *4–5 (NLRB Aug. 8, 2014) this section. In the preamble to the IFR,
(holding that back pay awards under the an equivalent position, OSHA has not
OSHA noted that, while the statute is made any changes to the rule to clarify
National Labor Relations Act should clear that reinstatement is the
include the allocation of back pay to the the term reinstatement in response to
presumptive remedy under section 18C SEIU’s comment.
appropriate calendar quarters). As the of the FLSA, in rare circumstances
NLRB has explained, when back pay is economic reinstatement or front pay in Subpart B—Litigation
not properly allocated to the years lieu of actual reinstatement may be
covered by the award, a complainant Section 1984.106 Objections to the
appropriate and that reinstatement Findings and the Preliminary Order and
may be disadvantaged in several ways. includes restoration of the terms,
First, improper allocation may interfere Requests for a Hearing
conditions, and privileges associated
with a complainant’s ability to qualify with the complainant’s employment as To be effective, objections to the
for any old-age Social Security benefit. necessary to put the employee in the findings of the Assistant Secretary must
Id. at *4 (‘‘Unless a [complainant’s] same position or a position equivalent be in writing and must be filed with the
multiyear back pay award is allocated to to the position that the employee held Chief Administrative Law Judge, U.S.
the appropriate years, she will not prior to the retaliation. Beckner Department of Labor, within 30 days of
receive appropriate credit for the entire commented in support of the use of receipt of the findings. The date of the
period covered by the award, and could economic reinstatement where the postmark, facsimile transmittal, or
therefore fail to qualify for any old-age employer-employee relationship has electronic communication transmittal is
social security benefit’’). Second, broken down beyond repair. considered the date of the filing; if the
improper allocation may reduce the SEIU commented that OSHA should objection is filed in person, by hand-
complainant’s eventual monthly benefit. amend the rule to clarify that delivery or other means, the objection is
Id. ‘‘[I]f a backpay award covering a reinstatement, including preliminary filed upon receipt. The filing of
multi-year period is posted as income reinstatement, means full restoration of objections also is considered a request
for 1 year, it may result in SSA treating pay and benefits. SEIU stated that for a hearing before an ALJ. Although
the [complainant] as having received reinstatement requires full restoration to the parties are directed to serve a copy
wages in that year in excess of the the status quo and includes restoration of their objections on the other parties
annual contribution and benefit base.’’ of duties and hours where those were of record, as well as the OSHA official
Id. Wages above this base are not subject reduced to reduce an employee’s pay. who issued the findings and order, the
to Social Security taxes, which reduces As SEIU correctly noted, OSHA’s Assistant Secretary, and the U.S.
the amount paid on the employee’s Whistleblower Investigations Manual, as Department of Labor’s Associate
behalf. ‘‘As a result, the [complainant’s] well as relevant case law under the Solicitor for Fair Labor Standards, the
eventual monthly benefit will be whistleblower protection statutes that failure to serve copies of the objections
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reduced because participants receive a OSHA administers, makes clear that on the other parties of record does not
greater benefit when they have paid reinstatement is reinstatement to the full affect the ALJ’s jurisdiction to hear and
more into the system.’’ Id. Finally, status quo prior to the retaliation and decide the merits of the case. See
‘‘social security benefits are calculated would include a restoration of hours Shirani v. Calvert Cliffs Nuclear Power
using a progressive formula: although a and duties as necessary to ensure that Plant, Inc., ARB No. 04–101, 2005 WL
participant receives more in benefits the whistleblower is returned to the 2865915, at *7 (ARB Oct. 31, 2005).
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parties, and the public interest favors a After consideration, OSHA declines to No comments were received on this
stay. alter the time period within which to section. Minor changes were made as
If the ARB concludes that the appeal the decision of an ALJ. We needed to this section to clarify the
respondent has violated the law, it will believe that 14 days is sufficient and provision without changing its meaning.
order the remedies listed in paragraph note that it is consistent with the time
(d). Interest on back pay will be Section 1984.112 Judicial Review
periods available under various other
calculated using the interest rate whistleblower provisions for which This section describes the statutory
applicable to underpayment of taxes OSHA is responsible, which range from provisions of CPSIA, incorporated into
under 26 U.S.C. 6621 and will be ten business days to 14 calendar days. section 18C of the FLSA, for judicial
compounded daily. Paragraph (d) has Compare 29 CFR 1983.109(e) with 29 review of decisions of the Secretary and
been revised to note that when back pay CFR 1985.109(e); 29 CFR 1987.109(e). requires, in cases where judicial review
is ordered, the order will also require OSHA also declines to adopt Renner’s is sought, the ALJ or the ARB to submit
the respondent to submit appropriate additional suggestions relating to this the record of proceedings to the
documentation to the Social Security section. First, OSHA declines to extend appropriate court pursuant to the rules
Administration allocating any back pay the time limit to petition for review of such court.
award to the appropriate period. If the because the shorter review period is No comments were received on this
ARB determines that the respondent has consistent with the practices and section and no changes were made.
not violated the law, an order will be procedures followed in OSHA’s other Section 1984.113 Judicial Enforcement
issued denying the complaint. whistleblower programs. Furthermore,
Beckner and Renner commented that This section describes the Secretary’s
parties may file a motion for extension power under section 18C to obtain
the time period for filing a petition for of time to appeal an ALJ’s decision, and
review with the ARB of an ALJ’s judicial enforcement of orders and the
the ARB has discretion to grant such terms of settlement agreements. Section
decision is too short. Beckner extensions.
commented that allowing both parties 18C incorporates the procedures,
OSHA also declines to change the notifications, burdens of proof,
only 14 days to petition the ARB to provision that objections to legal
review an ALJ decision appeal is too remedies, and statutes of limitations set
conclusions not raised in petitions for forth in CPSIA, 15 U.S.C. 2087(b),
short and inconsistent with the rule’s review ‘‘may’’ be deemed waived.
allowing 30 days to determine whether which expressly authorizes district
OSHA first notes that the use of the term courts to enforce orders, including
an ALJ’s decision was in error. Renner ‘‘may’’ in the IFR was made as a result
commented that ‘‘[t]he proper preliminary orders of reinstatement,
of comments submitted by Renner on issued by the Secretary. See 15 U.S.C.
adjudication of whistleblower matters other whistleblower rules recently
would be enhanced if parties and their 2087(b)(6) (‘‘Whenever any person has
published by OSHA. See, e.g., failed to comply with an order issued
counsel can prepare their briefs, and Procedures for the Handling of
select their issues, thoughtfully. . . . under paragraph (3), the Secretary may
Retaliation Complaints Under Section file a civil action in the United States
When faced with the unusually short 219 of the Consumer Product Safety
time limit of fourteen (14) days to district court for the district in which
Improvement Act of 2008, 77 FR 40494, the violation was found to occur, or in
submit a petition that must list all 40500–01 (July 10, 2012); Procedures for
issues, advocates are likely to the United States district court for the
the Handling of Retaliation Complaints District of Columbia, to enforce such
overselect. To preserve issues and avoid Under the Employee Protection
missing a meritorious claim, they are order.’’). Specifically, reinstatement
Provision of the Surface Transportation orders issued at the close of OSHA’s
likely to list every issue that might
Assistance Act of 1982, as amended, 77 investigation are immediately
conceivably apply. While counsel could
FR 44121, 44131–32 (July 27, 2012). enforceable in district court pursuant to
choose to drop issues between the
OSHA believes that use of the non- 15 U.S.C. 2087(b)(6) and (7). Section
petition and the brief, requiring counsel
mandatory word ‘‘may’’ adequately 18C of the FLSA provides, through
to list all the issues in the petition
addresses Renner’s underlying concern CPSIA, that the Secretary shall order the
makes it more likely that counsel will
that grounds not raised in a petition for person who has committed a violation
then face pressure to brief those issues.’’
review may be barred from to reinstate the complainant to his or
He added that ‘‘some whistleblowers or
consideration before the ARB. her former position. See 15 U.S.C.
their counsel may find the task of
In addition to the revision noted 2087(b)(3)(B)(ii). Section 18C of the
reviewing the record to identify all
above regarding the allocation of back FLSA also provides, through CPSIA,
appealable issues so consuming that
pay to the appropriate period, minor that the Secretary shall accompany any
they miss the short deadline for filing
changes were made as needed to clarify reasonable cause finding that a violation
the petition for review.’’
Renner also commented that the this section without changing its occurred with a preliminary order
provision that objections to legal meaning. containing the relief prescribed by
conclusions not raised in petitions for Subpart C—Miscellaneous Provisions subsection (b)(3)(B) of CPSIA, which
review may be deemed waived should includes reinstatement where
be changed. He specifically suggested Section 1984.111 Withdrawal of appropriate, and that any preliminary
that section 1984.110(a) should be Complaints, Findings, Objections, and order of reinstatement shall not be
amended to read as follows: ‘‘The Petitions for Review; Settlement stayed upon the filing of objections. See
parties should identify in their petitions This section provides the procedures 15 U.S.C. 2087(b)(2)(A) (‘‘The filing of
for review the legal conclusions or and time periods for withdrawal of such objections shall not operate to stay
orders to which they object, or the complaints, the withdrawal of findings any reinstatement remedy contained in
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objections may be deemed waived so and/or preliminary orders by the the preliminary order.’’). Thus, under
that the Administrative Review Board Assistant Secretary, and the withdrawal section 18C of the FLSA, enforceable
may determine that the review presents of objections to findings and/or orders. orders include preliminary orders that
issues worthy of full briefing.’’ He stated It also provides for approval of contain the relief of reinstatement
that the provision as written could work settlements at the investigative and prescribed by 15 U.S.C. 2087(b)(3)(B).
against the remedial purpose of the law. adjudicative stages of the case. This statutory interpretation is
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consistent with the Secretary’s distinguishing between actions that can OSHA received two comments on this
interpretation of similar language in the be brought if the Secretary has not section that are addressed in the general
Wendell H. Ford Aviation Investment issued a ‘‘final decision’’ within 210 comments discussion. OSHA made
and Reform Act for the 21st Century and days and actions that can be brought minor changes to this section,
Sarbanes-Oxley. See Brief for the within 90 days after a ‘‘written substituting the term ‘‘retaliation’’ for
Intervenor/Plaintiff-Appellee Secretary determination,’’ supports allowing de ‘‘discrimination’’ and clarifying that in
of Labor, Solis v. Tenn. Commerce novo actions in district court under all cases parties must provide a copy of
Bancorp, Inc., No. 10–5602 (6th Cir. either of the circumstances described the district court complaint to the
2010); Solis v. Tenn. Commerce above. However, in the Secretary’s view, OSHA official who issued the findings
Bancorp, Inc., 713 F. Supp. 2d 701 complainants may not initiate an action and/or preliminary order, the Assistant
(M.D. Tenn. 2010); but see Bechtel v. in federal court after the Secretary Secretary, and the U.S. Department of
Competitive Techs., Inc., 448 F.3d 469 issues a final decision, even if the date Labor’s Associate Solicitor for Fair
(2d Cir. 2006); Welch v. Cardinal of the final decision is more than 210 Labor Standards. Section 1984.115
Bankshares Corp., 454 F. Supp. 2d 552 days after the filing of the complaint or Special Circumstances; Waiver of Rules.
(W.D. Va. 2006) (decision vacated, within 90 days of the complainant’s This section provides that in
appeal dismissed, No. 06–2295 (4th Cir. receipt of the Assistant Secretary’s circumstances not contemplated by
Feb. 20, 2008)). Also, through written findings. The purpose of the these rules or for good cause the ALJ or
application of CPSIA, section 18C of the ‘‘kick-out’’ provision is to aid the the ARB may, upon application and
FLSA permits the person on whose complainant in receiving a prompt notice to the parties, waive any rule as
behalf the order was issued to obtain decision. That goal is not implicated in justice or the administration of section
judicial enforcement of the order. See 15 a situation where the complainant 18C of the FLSA requires.
U.S.C. 2087(b)(7). already has received a final decision No comments were made on this
No comments were received on this from the Secretary. In addition, section and no substantive changes were
section. OSHA has revised this section permitting the complainant to file a new made.
slightly to more closely parallel the case in district court in such IV. Paperwork Reduction Act
provisions of the statute regarding the circumstances could conflict with the
proper venue for an enforcement action. This rule contains a reporting
parties’ rights to seek judicial review of
provision (filing a retaliation complaint,
Section 1984.114 District Court the Secretary’s final decision in the
Section 1984.103) which was previously
Jurisdiction of Retaliation Complaints court of appeals.
reviewed and approved for use by the
This section sets forth the statutory Under section 18C of the FLSA, the Office of Management and Budget
provisions that allow a complainant to Assistant Secretary’s written findings (OMB) under the provisions of the
bring an original de novo action in become the final order of the Secretary, Paperwork Reduction Act of 1995 (Pub.
district court, alleging the same not subject to judicial review, if no L. 104–13). The assigned OMB control
allegations contained in the complaint objection is filed within 30 days. See 15 number is 1218–0236.
filed with OSHA, under certain U.S.C. 2087(b)(2). Thus, a complainant
may need to file timely objections to the V. Administrative Procedure Act
circumstances. By incorporating the
procedures, notifications, burdens of Assistant Secretary’s findings in order to NFIB and the Chamber commented
proof, remedies, and statutes of preserve the right to file an action in that the IFR should be reissued as a
limitations set forth in CPSIA, 15 U.S.C. district court. Notice of Proposed Rulemaking.
2087(b), section 18C permits a This section also requires that, within However, the notice and comment
complainant to file an action for de seven days after filing a complaint in rulemaking procedures of section 553 of
novo review in the appropriate district district court, a complainant must the Administrative Procedure Act (APA)
court if there has been no final decision provide a file-stamped copy of the do not apply ‘‘to interpretative rules,
of the Secretary within 210 days of the complaint to the Assistant Secretary, the general statements of policy, or rules of
filing of the complaint, or within 90 ALJ, or the ARB, depending on where agency organization, procedure, or
days after receiving a written the proceeding is pending. In all cases, practice.’’ 5 U.S.C. 553(b)(A). This rule
determination. ‘‘Written determination’’ a copy of the complaint also must be is a rule of agency procedure, practice,
refers to the Assistant Secretary’s provided to the OSHA official who and interpretation within the meaning
written findings issued at the close of issued the findings and/or preliminary of that section.
OSHA’s investigation under section order, the Assistant Secretary, and the This rule is ‘‘procedural on its face,’’
1984.105(a). 15 U.S.C. 2087(b)(4). The U.S. Department of Labor’s Associate because it sets forth procedures for
Secretary’s final decision is generally Solicitor for Fair Labor Standards. This OSHA to use in investigating
the decision of the ARB issued under provision is necessary to notify the complaints under the whistleblower
section 1984.110. In other words, a Agency that the complainant has opted provisions of the ACA, and procedures
complainant may file an action for de to file a complaint in district court. This for the Secretary’s adjudication of ACA
novo review in the appropriate district provision is not a substitute for the whistleblower cases. See U.S. Dep’t of
court in either of the following two complainant’s compliance with the Labor v. Kast Metals Corp., 744 F.2d
circumstances: (1) A complainant may requirements for service of process of 1145, 1150, 1152 (5th Cir.1984) (OSHA
file a de novo action in district court the district court complaint contained in rule which ‘‘set[] forth procedural steps
within 90 days of receiving the the Federal Rules of Civil Procedure and to guide the agency in exercise of its
Assistant Secretary’s written findings the local rules of the district court statutory authority to conduct
issued under section 1984.105(a), or (2) where the complaint is filed. The investigations,’’ was ‘‘procedural on its
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a complainant may file a de novo action section also incorporates the statutory face.’’); see also American Hosp. Assoc.
in district court if more than 210 days provisions which allow for a jury trial v. Bowen, 834 F.2d 1037, 1050–51 (D.C.
have passed since the filing of the at the request of either party in a district Cir. 1987) (holding the same with regard
complaint and the Secretary has not court action, and which specify the to HHS enforcement plan). The rule is
issued a final decision. The plain remedies and burdens of proof in a ‘‘primarily directed toward improving
language of 15 U.S.C. 2087(b)(4), by district court action. the efficient and effective operations of’’
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![70620 Federal Register / Vol. 81, No. 198 / Thursday, October 13, 2016 / Rules and Regulations
the agency. See Mendoza v. Perez, 754 Management and Budget has concluded U.S.C. 553; and therefore the rule is
F.3d 1002, 1023 (D.C. Cir. 2014) that this rule is a ‘‘significant regulatory exempt from both the notice and
(citations omitted) (explaining the action’’ within the meaning of section comment rulemaking procedures of the
difference between procedural and 3(f)(4) of Executive Order 12866. APA and the requirements under the
legislative rules). The rule does not alter Executive Order 12866, reaffirmed by RFA. For similar reasons, OSHA does
the rights or interests of the parties to an Executive Order 13563, requires a full not agree that a Small Business
ACA whistleblower proceeding, which economic impact analysis only for Advocacy Review panel is warranted.
are set forth in the statute and relevant ‘‘economically significant’’ rules, which
case law. Rather, the rule sets forth the are defined in Section 3(f)(1) of List of Subjects in 29 CFR Part 1984
procedures under which the Secretary Executive Order 12866 as rules that may Administrative practice and
will investigate and adjudicate ACA ‘‘[h]ave an annual effect on the economy procedure, Employment, Health care,
whistleblower disputes. of $100 million or more, or adversely Investigations, Reporting and
The rule is also interpretative, in part, affect in a material way the economy, a recordkeeping requirements,
since it also clarifies certain statutory sector of the economy, productivity, Whistleblower.
terms, reminds parties of their existing competition, jobs, the environment, Authority and Signature
obligations under the statute, and public health or safety, or State, local,
explains preexisting requirements under or tribal governments or communities.’’ This document was prepared under
the statute. See Perez v. Mortgage The rule is procedural and the direction and control of David
Bankers Ass’n, 135 S. Ct. 1199, 1204 interpretative in nature. Because it Michaels, Ph.D., MPH, Assistant
(2015), quoting Shalala v. Guernsey simply implements procedures Secretary of Labor for Occupational
Mem’l Hosp., 514 U.S. 87, 99 (1995) necessitated by enactment of section Safety and Health.
(noting that interpretative rules are 18C of the FLSA, the rule is expected to Signed at Washington, DC, on October 5,
‘‘issued by an agency to advise the have a negligible economic impact and 2016.
public of the agency’s construction of no economic impact analysis under David Michaels,
the statutes and rules which it Section 6(a)(3)(C) of Executive Order Assistant Secretary of Labor for Occupational
administers’); see also Mendoza, 754 12866 has been prepared. For the same Safety and Health.
F.3d at 1021 (‘‘Interpretative rules are reason, and the fact that no notice of
those that clarify a statutory or proposed rulemaking has been ■ Accordingly, for the reasons set out in
regulatory term, remind parties of published, the rule does not require a the preamble, 29 CFR part 1984 is
existing statutory or regulatory duties, Section 202 statement under the revised to read as follows:
or merely track preexisting requirements Unfunded Mandates Reform Act of PART 1984—PROCEDURES FOR THE
and explain something the statute or 1995. 2 U.S.C. 1531 et seq. Finally, this HANDLING OF RETALIATION
regulation already required.’’) (internal rule does not have ‘‘federalism COMPLAINTS UNDER SECTION 1558
citations and quotations omitted). implications,’’ in that it does not have
OF THE AFFORDABLE CARE ACT
Therefore, OSHA was not required to ‘‘substantial direct effects on the States,
publish a notice of proposed rulemaking on the relationship between the national Subpart A—Complaints, Investigations,
in the Federal Register and request government and the States, or on the Findings, and Preliminary Orders
public comments on this rule. Although distribution of power and Sec.
it was not required to do so for this responsibilities among the various 1984.100 Purpose and scope.
procedural and interpretative rule, levels of government’’ and therefore is 1984.101 Definitions.
OSHA sought and considered comments not subject to Executive Order 13132 1984.102 Obligations and prohibited acts.
to enable the agency to improve the (Federalism). 1984.103 Filing of retaliation complaint.
rules by taking into account the 1984.104 Investigation.
concerns of interested persons. VII. Regulatory Flexibility Analysis 1984.105 Issuance of findings and
preliminary orders.
Furthermore, because this rule is NFIB and the Chamber commented
procedural and interpretative rather that the IFR did not comply with the Subpart B—Litigation
than substantive, the normal requirements of the Regulatory 1984.106 Objections to the findings and the
requirement of 5 U.S.C. 553(d) that a Flexibility Act (RFA) and that OSHA preliminary order and requests for a
rule be effective 30 days after should have produced an Initial hearing.
publication in the Federal Register is Regulatory Flexibility Analysis (IRFA). 1984.107 Hearings.
inapplicable. OSHA also finds good NFIB also asserts that a Small Business 1984.108 Role of Federal agencies.
Advocacy Review panel is warranted. 1984.109 Decision and orders of the
cause to provide an immediate effective
administrative law judge.
date for this final rule. It is in the public OSHA disagrees. The notice and 1984.110 Decision and orders of the
interest that the rule be effective comment rulemaking procedures of Administrative Review Board.
immediately so that parties may know section 553 of the APA do not apply ‘‘to
what procedures are applicable to interpretative rules, general statements Subpart C—Miscellaneous Provisions
pending cases. Furthermore, most of the of policy, or rules of agency 1984.111 Withdrawal of complaints,
provisions of this rule were in the IFR organization, procedure, or practice.’’ 5 findings, objections, and petitions for
and have already been in effect since U.S.C. 553(b)(A). Rules that are exempt review; settlement.
from APA notice and comment 1984.112 Judicial review.
February 27, 2013 so a delayed effective 1984.113 Judicial enforcement.
date is unnecessary. requirements are also exempt from the 1984.114 District court jurisdiction of
RFA. See SBA Office of Advocacy, A retaliation complaints.
VI. Executive Orders 12866 and 13563; Guide for Government Agencies: How to 1984.115 Special circumstances; waiver of
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Unfunded Mandates Reform Act of Comply with the Regulatory Flexibility rules.
1995; Executive Order 13132 Act, at 9 (May 2012); available at: http:// Authority: 29 U.S.C. 218C; Secretary of
NFIB and the Chamber commented www.sba.gov/sites/default/files/ Labor’s Order 1–2012 (Jan. 18, 2012), 77 FR
that the IFR failed to comply with rfaguide_0512_0.pdf*. This is a rule of 3912 (Jan. 25, 2012); Secretary of Labor’s
Executive Orders 12866 and 13563. agency procedure, practice, and Order No. 2–2012 (Oct. 19, 2012), 77 FR
OSHA disagrees. The Office of interpretation within the meaning of 5 69378 (Nov. 16, 2012).
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![70626 Federal Register / Vol. 81, No. 198 / Thursday, October 13, 2016 / Rules and Regulations
Columbia. Whenever any person has application, after three-days notice to all 80202–1129, (303) 312–6227,
failed to comply with a preliminary parties, waive any rule or issue such leone.kevin@epa.gov.
order of reinstatement, or a final order, orders that justice or the administration SUPPLEMENTARY INFORMATION:
including one approving a settlement of section 18C of the FLSA requires.
agreement, issued under section 18C of [FR Doc. 2016–24559 Filed 10–12–16; 8:45 am] I. What is the EPA approving?
the FLSA, a person on whose behalf the BILLING CODE 4510–26–P The EPA is approving all revisions as
order was issued may file a civil action submitted by the State of South Dakota
seeking enforcement of the order in the on October 23, 2015, with the exception
appropriate United States district court. ENVIRONMENTAL PROTECTION of the revisions that we are not acting
AGENCY on, as outlined in section III of our
§ 1984.114 District court jurisdiction of proposed rulemaking published on
retaliation complaints. August 8, 2016 (81 FR 52388). We are
40 CFR Part 52
(a) The complainant may bring an taking final action to approve the
action at law or equity for de novo [EPA–R08–OAR–2016–0424; FRL–9953–92–
Region 8]
following revisions: (1) 74:36:01:01
review in the appropriate district court (Definitions) - 74:36:01:01(8),
of the United States, which will have Approval and Promulgation of Air 74:36:01:01(29), 74:36:01:01(67),
jurisdiction over such an action without Quality Implementation Plans; South 74:36:01:01(73), 74:36:01:05, and
regard to the amount in controversy, Dakota; Revisions to the Permitting 74:36:01:20 ; 74:36:02 (Ambient Air
either: Rules Quality)—74:36:02:02, 74:36:02:03,
(1) Within 90 days after receiving a 74:36:02:04 and 74:36:02:05; 74:36:03
written determination under AGENCY: Environmental Protection (Air Quality Episodes)—74:36:03:01 and
§ 1984.105(a) provided that there has Agency. 74:36:03:02; 74:36:04 (Operating
been no final decision of the Secretary; ACTION: Final rule. Permits for Minor Sources)—
or 74:36:04:04, 74:36:04:03 and
(2) If there has been no final decision SUMMARY: The Environmental Protection 74:36:04:21.01; 74:36:09 (Prevention of
of the Secretary within 210 days of the Agency (EPA) is taking final action to Significant Deterioration)— 74:36:09:02,
filing of the complaint. approve State Implementation Plan 74:36:09:03, 74:36:09:02(7),
(3) At the request of either party, the (SIP) revisions submitted by the State of 74:36:09:02(8) and 74:36:09:02(9);
action shall be tried by the court with South Dakota on October 23, 2015 and 74:36:10 (New Source Review)—
a jury. July 29, 2013 related to South Dakota’s 74:36:10:02, 74:36:10:03.01, 74:36:10:05,
(b) A proceeding under paragraph (a) Air Pollution Control Program. The 74:36:10:07 and 74:36:10:08; 74:36:11
of this section shall be governed by the October 23, 2015 submittal revises (Performance Testing)—74:36:11:01;
same legal burdens of proof specified in certain definitions and dates of 74:36:12 (Control of Visible
§ 1984.109. The court shall have incorporation by reference and contains Emissions)—74:36:12:01 and
jurisdiction to grant all relief necessary new, amended and renumbered rules. In 74:36:12:03; 74:36:18 (Regulations for
to make the employee whole, including this rulemaking, we are taking final State Facilities in the Rapid City Area)—
injunctive relief and compensatory action on all portions of the October 23, 74:36:18:10; 74:36:20 (Construction
damages, including: 2015 submittal, except for those Permits for New Sources or
(1) Reinstatement with the same portions of the submittal which do not Modifications)—74:36:20:05;
seniority status that the employee belong in the SIP. This action is being 74:36:01:01(73) (Subject to Regulation);
would have had, but for the discharge taken under section 110 of the Clean Air and the deletion of 74:36:04:03.01
or retaliation; Act (CAA). (Minor Source Operating Permit
(2) The amount of back pay, with DATES: This final rule is effective on Variance).
interest; and November 14, 2016. We provided a detailed explanation of
(3) Compensation for any special the bases for our proposal. See 81 FR
ADDRESSES: The EPA has established a
damages sustained as a result of the 52388. We invited comment on all
docket for this action under Docket ID
discharge or retaliation, including aspects of our proposal and provided a
No. EPA–R08–OAR–2016–0424. All
litigation costs, expert witness fees, and 30-day comment period. The comment
documents in the docket are listed on
reasonable attorney fees. period ended on September 8, 2016.
the http://www.regulations.gov Web
(c) Within seven days after filing a In this action, we are responding to
site. Although listed in the index, some
complaint in federal court, a the comments we received and taking
information is not publicly available,
complainant must file with the final rulemaking action on the rules
e.g., CBI or other information whose
Assistant Secretary, the ALJ, or the ARB, from the State’s July 29, 2013 and
disclosure is restricted by statute.
depending on where the proceeding is October 23, 2015, submittals.
Certain other material, such as
pending, a copy of the file-stamped II. Brief Discussion of Statutory and
copyrighted material, is not placed on
complaint. In all cases, a copy of the Regulatory Requirements
the Internet and will be publicly
complaint also must be served on the
available only in hard copy form. The changes we are taking final action
OSHA official who issued the findings
Publicly available docket materials are to approve are consistent with the CAA
and/or preliminary order, the Assistant
available electronically through http:// and EPA regulations. Specifically:
Secretary, and the Associate Solicitor,
www.regulations.gov, or please contact 1. CAA section 110(a)(2)(C), requires
Division of Fair Labor Standards, U.S.
the person identified in the ‘‘For Further each state plan to include ‘‘a program to
Department of Labor.
Information Contact’’ section for provide for the . . . regulation of the
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§ 1984.115 Special circumstances; waiver additional availability information. modification and construction of any
of rules. FOR FURTHER INFORMATION CONTACT: stationary source within the areas
In special circumstances not Kevin Leone, Air Program, U.S. covered by the plan as necessary to
contemplated by the provisions of this Environmental Protection Agency, assure that the National Ambient Air
part, or for good cause shown, the ALJ Region 8, Mailcode 8P–AR, 1595 Quality Standards [NAAQS] are
or the ARB on review may, upon Wynkoop Street, Denver, Colorado achieved, including a permit program as
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Document Created: 2016-10-13 00:53:51
Document Modified: 2016-10-13 00:53:51
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on October 13, 2016. | |
| Contact | Anh-Viet Ly, Directorate of Whistleblower Protection Programs, Occupational Safety and Health Administration, U.S. Department of Labor, Room N-4624, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email: [email protected] This is not a toll-free number. | |
| FR Citation | 81 FR 70607 | |
| RIN Number | 1218-AC79 | |
| CFR Associated | Administrative Practice and Procedure; Employment; Health Care; Investigations; Reporting and Recordkeeping Requirements and Whistleblower |
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