[Federal Register Volume 67, Number 62 (Monday, April 1, 2002)]
[Rules and Regulations]
[Pages 15454-15461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7636]
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Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1979
Procedures for the Handling of Discrimination Complaints under Section
519 of the Wendell H. Ford Aviation Investment and Reform Act for the
21st Century; Final Rule
Federal Register / Vol. 67, No. 62 / Monday, April 1, 2002 / Rules
and Regulations
[[Page 15454]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1979
RIN 1218-AB99
Procedures for the Handling of Discrimination Complaints Under
Section 519 of the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: This document provides the text of regulations governing the
employee protection (``whistleblower'') provisions of Section 519 of
the Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (``AIR21''), a Federal Aviation Administration reauthorization
bill, enacted into law April 5, 2000. This rule establishes procedures
and time frames for the handling of complaints under AIR21, 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, appeal of ALJ decisions to the
Administrative Review Board (acting on behalf of the Secretary) and
judicial review of the Secretary's final decision.
DATES: This interim final rule is effective on April 1, 2002. Comments
on the interim final rule are due on or before May 31, 2002.
ADDRESSES: Submit written comments to: Assistant Secretary,
Occupational Safety and Health Administration, U.S. Department of
Labor, Room N-3468, 200 Constitution Avenue, NW., Washington, DC 20210.
Commenters who wish to receive notification of receipt of comments are
requested to include a self-addressed, stamped post card or to submit
them by certified mail, return receipt requested. As a convenience,
comments may be transmitted by facsimile (``FAX'') machine to (202)
693-1681. This is not a toll-free number. If commenters transmit
comments by FAX and also submit a hard copy by mail, please indicate on
the hard copy that it is a duplicate copy of the FAX transmission.
FOR FURTHER INFORMATION CONTACT: John Spear, Occupational Safety and
Health Administration, U.S. Department of Labor, Room N-3468, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
2187. This is not a toll-free number. 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 Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (``AIR21''), Public Law No. 106-181, was enacted on April 5,
2000. Section 519 of the Act, codified at 49 U.S.C. 42121, provides
protection to employees against retaliation by air carriers, their
contractors and their subcontractors, because they provided information
to the employer or the federal government relating to air carrier
safety violations, or filed, testified, or assisted in a proceeding
against the employer relating to any violation or alleged violation of
any order, regulation, or standard of the Federal Aviation
Administration (``FAA'') or any other law relating to the safety of air
carriers, or because they are about to take any of these actions. These
rules establish procedures for the handling of complaints under AIR21.
In drafting these regulations, consideration has been given to the
whistleblower regulations of the Surface Transportation Assistance Act
(``STAA''), codified at 29 CFR part 1978, and the Energy Reorganization
Act (``ERA''), codified at 29 CFR part 24, where deemed appropriate.
II. Summary of Statutory Provisions
The AIR21 whistleblower provisions include procedures which allow a
covered employee to file, within 90 days of the alleged discrimination,
a complaint with the Secretary of Labor (``the Secretary'').\1\ Upon
receipt of the complaint, the Secretary must provide written notice to
both the person named in the complaint who is alleged to have violated
the Act (``the named person'') and the FAA of: The allegations
contained in the complaint, the substance of the evidence submitted
with the complaint, and the rights of the named person throughout the
investigation. The Secretary must then, within 60 days of receipt of
the complaint, afford the named person an opportunity to submit a
response and meet with the investigator to present statements from
witnesses, and conduct an investigation. However, the Secretary may
conduct an investigation only if the complainant has made a prima facie
showing that the alleged discriminatory behavior was a contributing
factor in the unfavorable personnel action alleged in the complaint and
the named person has not demonstrated, through clear and convincing
evidence, that the employer would have taken the same unfavorable
personnel action in the absence of that behavior. This provision is
similar to the 1992 amendments to the ERA, codified at 42 U.S.C. 5851.
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\1\ Responsibility for receiving and investigating these
complaints has been delegated to the Assistant Secretary for OSHA.
Secretary's Order 3-2000, 65 FR 50017 (August 16, 2000). Hearings on
determinations by the Assistant Secretary are conducted by the
Office of Administrative Law Judges, and appeals from decisions by
administrative law judges are decided by the Administrative Review
Board. See Secretary's Order 2-96, 61 FR 19978 (May 3, 1996).
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After investigating a complaint, the Secretary shall issue a
determination letter. If, as a result of the investigation, the
Secretary finds there is reasonable cause to believe that
discriminatory behavior has occurred, the Secretary must notify the
named person of those findings along with a preliminary order which
requires the named person to: Abate the violation, reinstate the
complainant to his or her former position and provide make whole relief
and compensatory damages to the complainant, as well as costs and fees
reasonably incurred. The complainant and the named person 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 on the record. The filing of objections under AIR21 shall stay
any remedy in the preliminary order except for preliminary
reinstatement. This provision for preliminary reinstatement after the
investigation is similar to Section 405 of STAA, 49 U.S.C. 31105. If a
hearing before an administrative law judge is not requested within 30
days, the preliminary order becomes final and is not subject to
judicial review.
If a hearing is held, AIR21 requires the hearing to be conducted
``expeditiously.'' The Secretary then has 120 days after the
``conclusion of a 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, complainant and the named person
may enter into a settlement agreement which terminates this proceeding.
The Secretary may assess against the named person, on the complainant's
request, a sum equal to the total amount of all costs and expenses,
including attorney's and expert witness fees reasonably incurred by the
complainant in bringing the complaint to the Secretary or in connection
with participating in the
[[Page 15455]]
proceeding which resulted in the order on behalf of the complainant.
The Secretary may also award a prevailing employer an attorney's fee,
not exceeding $1,000, if she finds that the complaint is or has been
brought in bad faith. Within 60 days of the issuance of the final
order, any person adversely affected or aggrieved by the Secretary's
final order may file an appeal with the United States Court of Appeals
for the circuit in which the violation occurred or the circuit where
the complainant resided on the date of the violation. Finally, AIR21
makes persons who violate these newly created whistleblower provisions
subject to a civil penalty of up to $1,000. This provision is
administered by the FAA.
III. Summary and Discussion of Regulatory Provisions
Section 1979.100 Purpose and Scope
This section describes the purpose of the regulations implementing
AIR21 and provides an overview of the procedures covered by these new
regulations.
Section 1979.101 Definitions
In addition to the general definitions, the regulations include
program-specific definitions of ``air carrier'' and ``contractor.'' The
statutory definition of ``air carrier'' applicable to AIR21 is found at
49 U.S.C. 40102(a)(2), a general definitional provision applicable to
air commerce and safety. The statutory definition of ``contractor'' is
found in AIR21 at 49 U.S.C. 42121(e).
Section 1979.102 Obligations and Prohibited Acts
This section describes the whistleblower activity which is
protected under the Act and the type of conduct which is prohibited in
response to any protected activity.
Section 1979.103 Filing of Discrimination Complaint
This section explains the requirements for filing a discrimination
complaint. Under AIR21, to be timely a complaint must be filed within
90 days of when the alleged violation occurs. Under Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be
when the discriminatory 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. Equal Employment Opportunity Commission v. United Parcel
Service, 249 F.3d 557, 561-62 (6th Cir. 2001). Complaints under AIR21
do not need to be made in any particular form, and, with the consent of
the employee, may be made by any person on the employee's behalf. Oral
complaints will be reduced to writing by the OSHA official receiving
the complaint.
Section 1979.104 Investigation
AIR21 contains a requirement similar to the requirement in the ERA
that a complaint shall be dismissed if it fails to make a prima facie
showing that protected behavior or conduct was a contributing factor in
the unfavorable personnel action alleged in the complaint. Also
included in this section is the AIR21 requirement that an investigation
of the complaint will not be conducted if the named person demonstrates
by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of the complainant's
protected behavior or conduct, notwithstanding the prima facie showing
of the complainant. Under this section, the named person has the
opportunity within ten days of receipt of the complaint to meet with
representatives of OSHA and present evidence in support of his or her
position.
If, upon investigation, OSHA has reasonable cause to believe that
the named person has violated the Act and therefore that preliminary
relief for the complainant is warranted, OSHA again contacts the named
person with notice of this determination and provides the substance of
the relevant evidence upon which that determination is based,
consistent with the requirements of confidentiality of informants. The
named person is afforded the opportunity, within ten days, to provide
written evidence in response to the allegation of the violation, meet
with the investigators, and present legal and factual arguments why
preliminary relief is not warranted. This provision provides due
process procedures in accordance with the Supreme Court decision under
STAA in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987).
Section 1979.105 Issuance of Findings and Preliminary Orders
This section provides that, on the basis of information obtained in
the investigation, the Assistant Secretary will issue a finding
regarding whether or not the complaint has merit. If the finding is
that the complaint has merit, the Assistant Secretary will order
appropriate preliminary relief.
The letter accompanying the findings and order advises the parties
of their right to file objections to the findings of the Assistant
Secretary. 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 findings 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.
Section 1979.106 Objections to the Findings and the Preliminary Order
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, Washington, DC
within 30 days of receipt of the findings. The date of the postmark,
facsimile transmittal or e-mail communication is considered the date of
the filing. The filing of objections is also considered a request for a
hearing before an ALJ.
Section 1979.107 Hearings
This section adopts the rules of practice of the Office of
Administrative Law Judges at 29 CFR part 18. In order to assist in
obtaining full development of the facts in whistleblower proceedings,
formal rules of evidence do not apply. The section specifically
provides for consolidation of hearings if both the complainant and the
named person object to the findings and/or order of the Assistant
Secretary.
Section 1979.108 Role of Federal Agencies
The ERA and STAA regulations provide two different models for
agency participation in administrative proceedings. Under STAA, OSHA
ordinarily prosecutes cases where a complaint has been found to be
meritorious. Under ERA and the other environmental whistleblower
statutes, on the other hand, OSHA does not ordinarily appear as a party
in the proceeding. The Department has found that in most environmental
whistleblower cases, parties have been ably represented and the public
interest has not required the Department's participation. Therefore
this provision utilizes the approach of the ERA regulation at 29 CFR
24.6(f)(1). The Assistant Secretary, at his or her discretion, may
participate as a party or amicus curiae at any time in the
administrative proceedings. For example, the Assistant Secretary may
exercise his or her discretion to prosecute the case in the
administrative proceeding before an administrative law judge; petition
for review of a decision of an administrative law judge,
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including a decision based on a settlement agreement between
complainant and the named person, regardless of whether the Assistant
Secretary participated before the ALJ; or participate as amicus curiae
before the ALJ or in the Administrative Review Board proceeding.
Although we anticipate that ordinarily the Assistant Secretary will not
participate in AIR21 proceedings, 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 which
appear egregious, or where the interests of justice might require
participation by the Assistant Secretary. The FAA, at that agency's
discretion, also may participate as amicus curiae at any time in the
proceedings. The Department believes it is unlikely that its
preliminary decision not to ordinarily prosecute meritorious AIR21
cases will discourage employees from making complaints about air
carrier safety. The Department seeks comment regarding its preliminary
decision that the Assistant Secretary should not ordinarily participate
in AIR21 proceedings, but should participate in appropriate cases, or
whether instead the Department should follow the STAA model under which
it ordinarily participates where a complaint is found to have merit.
The Department will consider these comments, as well as its experience
under this program in the interim, in issuance of the final rule.
Section 1979.109 Decision of the Administrative Law Judge
This section sets forth the content of the decision and order of
the administrative law judge, and includes the statutory standard for
finding a violation. The section further provides that the Assistant
Secretary's determination as to whether to dismiss the complaint
without an investigation or conduct an investigation pursuant to
Sec. 1979.104 is not subject to review by the ALJ, who hears the case
on the merits.
Section 1979.110 Decision of the Administrative Review Board
The decision of the ALJ is the final decision of the Secretary if
no timely petition for review is filed with the Administrative Review
Board. Upon the issuance of the ALJ's decision, the parties have 15
days to petition the Board for review of that decision. The decision of
the Board is required by the Act to be issued not later than 120 days
after the date of the conclusion of the hearing before the ALJ, which
is deemed to be the conclusion of all proceedings before the
administrative law judge--i.e., 15 days after the date of the decision
of the administrative law judge unless a motion for reconsideration has
been filed in the interim. If a timely petition for review is filed
with the Board, any relief ordered by the ALJ, except for a preliminary
order of reinstatement, is inoperative while review is conducted by the
Board.
Section 1979.111 Withdrawal of Complaints, Objections, and Findings;
Settlement
This section provides for the procedures and time periods for
withdrawal of complaints, the withdrawal of findings by the Assistant
Secretary, and the withdrawal of objections to findings. It also
provides for approval of settlements at the investigatory and judicial
stages of the case.
Section 1979.112 Judicial Review
This section describes the statutory provisions for judicial review
of decisions of the Secretary and requires, in cases where judicial
review is sought, the Administrative Review Board to submit the record
of proceedings to the appropriate court pursuant to the rules of such
court.
Section 1979.113 Judicial Enforcement
This section describes the Secretary's power under the statute to
obtain judicial enforcement of orders and the terms of a settlement
agreement. It also provides for enforcement of orders of the Secretary
by the person on whose behalf the order was issued.
Section 1979.114 Special Circumstances; Waiver of Rules
This section provides that in circumstances not contemplated by
these rules or for good cause the Secretary may, upon application and
notice to the parties, waive any rule as justice or the administration
of the Act requires.
IV. Paperwork Reduction Act
This rule contains a reporting requirement (Sec. 1979.103) which
was previously reviewed and approved for use by the Office of
Management and Budget (``OMB'') under 29 CFR 24.3 and assigned OMB
control number 1218-0236 under the provisions of the Paperwork
Reduction Act of 1995 (Pub. L. 104-13).
V. Administrative Procedure Act
This rule is a rule of agency procedure and practice within the
meaning of Section 553 of the Administrative Procedure Act (``APA''), 5
U.S.C. 553(b)(A). Therefore publication in the Federal Register of a
notice of proposed rulemaking and request for comments is not required
by these regulations, which provide procedures for the handling of
discrimination complaints. Although this rule is not subject to the
notice and comment procedures of the APA, persons interested in this
interim final rule may submit comments within 60 days. A final rule
will be published after the agency receives and reviews the public's
comments.
Furthermore, because this rule is procedural 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. The Assistant Secretary also finds good cause to provide
an immediate effective date for this rule. It is in the public interest
that the rule be effective immediately so that parties may know what
procedures are applicable to pending cases.
VI. Executive Order 12866; Unfunded Mandates Reform Act of 1995;
Small Business Regulatory Enforcement Fairness Act of 1996;
Executive Order 13132
The Department has concluded that this rule should be treated as a
``significant regulatory action'' within the meaning of Section 3(f)(4)
of Executive Order 12866 because AIR21 is a new program and because of
the importance to FAA's airline safety program that ``whistleblowers''
be protected from retaliation. E.O. 12866 requires a full economic
impact analysis only for ``economically significant'' rules, which are
defined in Section 3(f)(1) as rules that may ``have an annual effect on
the economy of $100 million or more, or adversely affect in a material
way the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities.'' Because the rule is procedural in nature, it is not
expected to have a significant economic impact; therefore no economic
impact analysis has been prepared. For the same reason, the rule does
not require a Section 202 statement under the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1531 et seq.). Furthermore, because this is a
rule of agency procedure or practice, it is not a ``rule'' within the
meaning of the Small Business Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.), and does not require Congressional review.
Finally, this rule does not have ``federalism implications.'' The rule
does not have ``substantial direct effects on the States, on the
relationship between the national
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government and the States, or on the distribution of power and
responsibilities among the various levels of government'' and therefore
is not subject to Executive Order 13132 (Federalism).
VII. Regulatory Flexibility Analysis
The Department has determined that the regulation will not have a
significant economic impact on a substantial number of small entities.
The regulation simply implements procedures necessitated by enactment
of AIR21, in order to allow resolution of whistleblower complaints.
Furthermore, no certification to this effect is required and no
regulatory flexibility analysis is required because no proposed rule
has been issued.
Document Preparation: This document was prepared under the
direction and control of the Assistant Secretary, Occupational Safety
and Health Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 1979
Administrative practice and procedure, Air carrier safety,
Employment, Investigations, Reporting and Recordkeeping requirements,
Whistleblowing.
Signed at Washington, DC, this 22nd day of March, 2002.
John L. Henshaw,
Assistant Secretary for Occupational Safety and Health.
Accordingly, for the reasons set out in the preamble part 1979 of
title 29 of the Code of Federal Regulations is promulgated as follows:
PART 1979-PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS
UNDER SECTION 519 OF THE WENDELL H. FORD AVIATION INVESTMENT AND
REFORM ACT FOR THE 21ST CENTURY
Subpart A--Complaints, Investigations, Findings and Preliminary Orders
Sec.
1979.100 Purpose and scope.
1979.101 Definitions.
1979.102 Obligations and prohibited acts.
1979.103 Filing of discrimination complaint.
1979.104 Investigation.
1979.105 Issuance of findings and preliminary orders.
Subpart B--Litigation
1979.106 Objections to the findings and the preliminary order and
request for a hearing.
1979.107 Hearings.
1979.108 Role of Federal agencies.
1979.109 Decision and orders of the administrative law judge.
1979.110 Decision and orders of the Administrative Review Board.
Subpart C--Miscellaneous Provisions
1979.111 Withdrawal of complaints, objections, and findings;
settlement.
1979.112 Judicial review.
1979.113 Judicial enforcement.
1979.114 Special circumstances; waiver of rules.
Authority: 49 U.S.C. 42121; Secretary of Labor's Order No. 3-
2000, 65 FR 50017 (August 16, 2000).
Subpart A--Complaints, Investigations, Findings and Preliminary
Orders
Sec. 1979.100 Purpose and scope.
(a) This part implements procedures under section 519 of the
Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century, 49 U.S.C. 42121 (``AIR21''), which provides for employee
protection from discrimination by air carriers or contractors or
subcontractors of air carriers because the employee has engaged in
protected activity pertaining to a violation or alleged violation of
any order, regulation, or standard of the Federal Aviation
Administration or any other provision of Federal law relating to air
carrier safety.
(b) This part establishes procedures pursuant to AIR21 for the
expeditious handling of complaints of discrimination made by employees,
or by persons acting on their behalf. These rules, together with those
rules set forth at 29 CFR part 18, set forth the procedures for
submission of complaints under AIR21, investigations, issuance of
findings and preliminary orders, objections to findings and orders,
litigation before administrative law judges, post-hearing
administrative review, and withdrawals and settlements.
Sec. 1979.101 Definitions.
Act or AIR21 means section 519 of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century, Public Law 106-181,
April 5, 2000, 49 U.S.C. 42121.
Air carrier means a citizen of the United States undertaking by any
means, directly or indirectly, to provide air transportation.
Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
Complainant means the employee who filed a complaint under the Act
or on whose behalf a complaint was filed.
Contractor means a company that performs safety-sensitive functions
by contract for an air carrier.
Employee means an individual presently or formerly working for an
air carrier or contractor or subcontractor of an air carrier, an
individual applying to work for an air carrier or contractor or
subcontractor of an air carrier, or an individual whose employment
could be affected by an air carrier or contractor or subcontractor of
an air carrier.
Named person means the person alleged to have violated the Act.
OSHA means the Occupational Safety and Health Administration of the
United States Department of Labor.
Person means one or more individuals, partnerships, associations,
corporations, business trusts, legal representatives or any group of
persons.
Secretary means the Secretary of Labor or persons to whom authority
under the Act has been delegated.
Sec. 1979.102 Obligations and prohibited acts.
(a) No air carrier or contractor or subcontractor of an air carrier
may discharge any employee or otherwise discriminate against any
employee with respect to the employee's compensation, terms,
conditions, or privileges of employment because the employee, or any
person acting pursuant to the employee's request, engaged in any of the
activities specified in paragraphs (b)(1) through (4) of this section.
(b) It is a violation of the Act for any air carrier or contractor
or subcontractor of an air carrier to intimidate, threaten, restrain,
coerce, blacklist, discharge or in any other manner discriminate
against any employee because the employee has:
(1) Provided, caused to be provided, or is about to provide (with
any knowledge of the employer) or cause to be provided to the air
carrier or contractor or subcontractor of an air carrier or the Federal
Government, information relating to any violation or alleged violation
of any order, regulation, or standard of the Federal Aviation
Administration or any other provision of Federal law relating to air
carrier safety under subtitle VII of title 49 of the United States Code
or under any other law of the United States;
(2) Filed, caused to be filed, or is about to file (with any
knowledge of the employer) or cause to be filed a proceeding relating
to any violation or alleged violation of any order, regulation, or
standard of the Federal Aviation Administration or any other provision
of Federal law relating to air carrier safety under subtitle VII of
title 49 of the United States Code, or under any other law of the
United States;
(3) Testified or is about to testify in such a proceeding; or
[[Page 15458]]
(4) Assisted or participated or is about to assist or participate
in such a proceeding.
(c) This part shall have no application to any employee of an air
carrier, contractor, or subcontractor who, acting without direction
from an air carrier, contractor, or subcontractor (or such person's
agent) deliberately causes a violation of any requirement relating to
air carrier safety under Subtitle VII Aviation Programs of Title 49 of
the United States Code or any other law of the United States.
Sec. 1979.103 Filing of discrimination complaint.
(a) Who may file. An employee who believes that he or she has been
discriminated against by an air carrier or contractor or subcontractor
of an air carrier in violation of the Act may file, or have filed by
any person on the employee's behalf, a complaint alleging such
discrimination.
(b) Nature of filing. No particular form of complaint is required.
(c) Place of filing. The complaint should be filed with the OSHA
Area Director responsible for enforcement activities in the
geographical area where the employee resides or was employed, but may
be filed with any Department of Labor officer or employee. Addresses
and telephone numbers for these officials are set forth in local
directories and at the following Internet address: www.osha.gov.
(d) Time for filing. Within 90 days after an alleged violation of
the Act occurs (i.e., when the discriminatory decision has been both
made and communicated to the complainant), an employee who believes
that he or she has been discriminated against in violation of the Act
may file, or have filed by any person on the employee's behalf, a
complaint alleging such discrimination. The date of the postmark,
facsimile transmittal, or e-mail communication will be considered to be
the date of filing; if the complaint is filed in person, by hand-
delivery, or other means, the complaint is filed upon receipt.
(e) Relationship to section 11(c) complaints. A complaint filed
under AIR21 that alleges facts which would constitute a violation of
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), shall be deemed to be a complaint filed under both AIR21 and
section 11(c). Similarly, a complaint filed under section 11(c) that
alleges facts that would constitute a violation of AIR21 shall be
deemed to be a complaint filed under both AIR21 and section 11(c).
Sec. 1979.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the
Assistant Secretary will notify the named person of the filing of the
complaint, of the allegations contained in the complaint, and of the
substance of the evidence supporting the complaint (sanitized to
protect the identity of any confidential informants). The Assistant
Secretary will also notify the named person of his or her rights under
paragraphs (b) and (c) of this section. A copy of the notice to the
named person will also be provided to the Federal Aviation
Administration.
(b) A complaint of alleged violation will be dismissed unless the
complainant has made a prima facie showing that protected behavior or
conduct was a contributing factor in the unfavorable personnel action
alleged in the complaint.
(1) 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 or conduct;
(ii) The named person knew, actually or constructively, that the
employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that
the protected activity was likely a contributing factor in the
unfavorable action.
(2) 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 named person knew (or suspected) that the
employee engaged in protected activity and that the protected activity
was likely a reason for the personnel action. Normally the burden is
satisfied, for example, if the complaint shows that the adverse
personnel action took place shortly after the protected activity,
giving rise to the inference that it was a factor in the adverse
action. If the required showing has not been made, the complainant will
be so advised and the investigation will not commence.
(c) Notwithstanding a finding that a complainant has made a prima
facie showing, as required by this section, an investigation of the
complaint will not be conducted if the named person, pursuant to the
procedures provided in this paragraph, demonstrates by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of the complainant's protected behavior
or conduct. Within ten days of receipt of the notice of the filing of
the complaint, the named person may submit to the Assistant Secretary a
written statement and any affidavits or documents substantiating his or
her position. Within the same ten days the named person may request a
meeting with the Assistant Secretary to present his or her position.
(d) If the named person fails to demonstrate by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of the behavior protected by the Act,
an investigation will be conducted. Investigations will be conducted in
a manner that protects the confidentiality of any person, other than
the complainant, who provides information on a confidential basis, in
accordance with part 70 of this title.
(e) Prior to the issuance of findings and a preliminary order as
provided for in Sec. 1979.105, if the Assistant Secretary has
reasonable cause, on the basis of information gathered under the
procedures of this part, to believe that the named person has violated
the Act and that preliminary reinstatement is warranted, the Assistant
Secretary will again contact the named person 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 sanitized to
protect the identity of confidential informants where statements were
given in confidence; if the statements cannot be sanitized without
revealing the identity of confidential informants, summaries of their
contents will be provided. The named person shall be given the
opportunity to submit a written response, to meet with the
investigators to present statements from witnesses in support of his or
her position, and to present legal and factual arguments. The named
person shall present this evidence within ten days of the Assistant
Secretary's notification pursuant to this paragraph, or as soon
afterwards as the Assistant Secretary and the named person can agree,
if the interests of justice so require.
Sec. 1979.105 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 filing of the
[[Page 15459]]
complaint, written findings as to whether or not there is reasonable
cause to believe that the named person has discriminated against the
complainant in violation of the Act. If the Assistant Secretary
concludes that there is reasonable cause to believe that a violation
has occurred, he or she will accompany the findings with a preliminary
order providing relief to the complainant. The preliminary order will
include, where appropriate, a requirement that the named person abate
the violation; reinstatement of the complainant to his or her former
position, together with the compensation (including back pay), terms,
conditions and privileges of the complainant's employment; and payment
of compensatory damages. At the complainant's request the order may
also assess against the named person the complainant's costs and
expenses (including attorney's and expert witness fees) reasonably
incurred in connection with the filing of the complaint. If the
Assistant Secretary concludes that a violation has not occurred, the
Assistant Secretary will notify the parties of that finding.
(b) Upon the request of the named person, the Assistant Secretary
shall determine, on the basis of information gathered under the
procedures of Sec. 1979.104, whether a complaint was frivolous or was
brought in bad faith. If the the Assistant Secretary determines the
complaint was frivolous or was brought in bad faith, the Assistant
Secretary may award to the named person a reasonable attorney's fee not
exceeding $1,000. In order to support such award, the Assistant
Secretary may require the named person to provide evidence of the
attorney's fee it has incurred.
(c) The findings and the preliminary order will be sent by
certified mail, return receipt requested, to all parties of record. The
letter accompanying the findings and order will inform the parties of
the right to object to the findings and/or the order and will give the
address of the Chief Administrative Law Judge. At the same time, the
Assistant Secretary will file with the Chief Administrative Law Judge,
U.S. Department of Labor, the original complaint and a copy of the
findings and order.
(d) The findings and the preliminary order shall be effective 30
days after receipt by the named person, but shall be inoperative if an
objection to the findings and preliminary order has been timely filed.
However, the portion of any preliminary order requiring reinstatement
shall be effective immediately upon receipt of the findings and
preliminary order, regardless of any objections to the findings and
order, and may not be stayed.
Subpart B--Litigation
Sec. 1979.106 Objections to the findings and the preliminary order and
request for a hearing.
(a) Any party who desires review, including judicial review, of the
findings and preliminary order, or of an award of attorney's fees under
Sec. 1979.105(b), must file objections and a request for a hearing on
the record, within 30 days of receipt of the findings and preliminary
order. The objection and request for a hearing must be in writing and
state whether the objection is to the findings, the preliminary order,
and/or the award of attorney's fees. The date of the postmark,
facsimile transmittal, or e-mail communication will be considered to be
the date of filing; if the objection is filed 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,
Washington, DC 20210, and copies of the objections must be mailed at
the same time to the other parties of record, the Assistant Secretary's
designee who issued the findings and order, and the Associate
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor,
Washington, DC 20210.
(b)(1) If a timely objection is filed, all provisions of the
preliminary order, except an order of preliminary reinstatement, shall
be stayed. However, the portion of any preliminary order requiring
reinstatement shall be effective immediately upon the named person's
receipt of the findings and preliminary order, regardless of any
objections to the order.
(2) The findings and the preliminary order shall be effective 30
days after receipt unless an objection to the findings or preliminary
order has been timely filed. If no timely objection is filed with
respect to either the findings or the preliminary order, the findings
or preliminary order, as the case may be, shall become the final
decision of the Secretary, not subject to judicial review.
Sec. 1979.107 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 part 18 of title 29 of the Code of Federal Regulations.
(b) Upon receipt of an objection and request for hearing, the Chief
Administrative Law Judge will promptly assign the case to a judge 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 as hearings de novo, on the record.
(c) If both complainant and the named person object to the findings
and/or order, the objections will be consolidated and a single hearing
will be conducted.
(d) Formal rules of evidence shall not apply, but rules or
principles designed to assure production of the most probative evidence
available shall be applied. The administrative law judge may exclude
evidence which is immaterial, irrelevant, or unduly repetitious.
Sec. 1979.108 Role of Federal agencies.
(a)(1) The complainant and the named person shall be parties in
every proceeding. At the Assistant Secretary's discretion, the
Assistant Secretary may participate as a party or may participate as
amicus curiae at any time in the proceedings. This right to participate
shall include, but is not limited to, the right to petition for review
of a decision of an administrative law judge, including a decision
based on a settlement agreement between complainant and the named
person, to dismiss a complaint or to issue an order encompassing the
terms of the settlement.
(2) Copies of pleadings in all cases, whether or not the Assistant
Secretary is participating in the proceeding, must be sent to the
Assistant Secretary, Occupational Safety and Health Administration, and
to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, DC 20210.
(b) The FAA may participate as amicus curiae at any time in the
proceedings, at the FAA's discretion. At the request of the FAA, copies
of all pleadings in a case must be served on the FAA, whether or not
the FAA is participating in the proceeding.
Sec. 1979.109 Decision and orders of the administrative law judge.
(a) The decision of the administrative law judge will contain
appropriate findings, conclusions, and an order pertaining to the
remedies provided in paragraph (b) of this section, as appropriate. A
determination that a violation has occurred may only be made if the
complainant has demonstrated that protected behavior or conduct was a
contributing factor in the
[[Page 15460]]
unfavorable personnel action alleged in the complaint. Relief may not
be ordered if the named person demonstrates by clear and convincing
evidence that it would have taken the same unfavorable personnel action
in the absence of any protected behavior. Neither the Assistant
Secretary's determination to dismiss a complaint pursuant to
Sec. 1979.104 without completing an investigation nor the Assistant
Secretary's determination not to dismiss a complaint is subject to
review by the administrative law judge, and a complaint may not be
remanded for the completion of an investigation on the basis that a
determination to dismiss was made in error. Rather, if there otherwise
is jurisdiction, the administrative law judge shall hear the case on
the merits.
(b) If the administrative law judge concludes that the party
charged has violated the law, the order shall direct the party charged
to take appropriate affirmative action to abate the violation,
including, where appropriate, reinstatement of the complainant to that
person's former position, together with the compensation (including
back pay), terms, conditions, and privileges of that employment, and
compensatory damages. At the request of the complainant, the
administrative law judge shall assess against the named person all
costs and expenses (including attorneys' and expert witness fees)
reasonably incurred. If, upon the request of the named person, the
administrative law judge determines that a complaint was frivolous or
was brought in bad faith, the judge may award to the named person a
reasonable attorney's fee, not exceeding $1,000.
(c) The decision will be served upon all parties to the proceeding.
Any administrative law judge's decision requiring reinstatement or
lifting an order of reinstatement by the Assistant Secretary shall be
effective immediately upon receipt of the decision by the named person,
and may not be stayed. All other portions of the judge's order shall be
effective 15 days after the date of the decision unless a timely
petition for review has been filed with the Administrative Review
Board.
Sec. 1979.110 Decision and orders of the Administrative Review Board.
(a) The decision of the administrative law judge shall become the
final order of the Secretary unless, pursuant to this section, a
petition for review is timely filed with the Administrative Review
Board (``the Board''). Any party desiring to seek review, including
judicial review, of a decision of the administrative law judge must
file a written petition for review with the Board, which has been
delegated the authority to act for the Secretary and issue final
decisions under this part. To be effective, a petition must be received
within 15 days of the date of the decision of the administrative law
judge. The petition must be served on all parties and on the Chief
Administrative Law Judge. If a timely petition for review is filed, the
decision of the administrative law judge shall be inoperative unless
and until the Board issues an order adopting the decision, except that
a preliminary order of reinstatement shall be effective while review is
conducted by the Board. The Board will specify the terms under which
any briefs are to be filed.
(b) Copies of the petition for review and all briefs must be served
on the Assistant Secretary, Occupational Safety and Health
Administration, and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, Washington, DC 20210.
(c) The final decision of the Board shall be issued within 120 days
of the conclusion of the hearing, which shall be deemed to be the
conclusion of all proceedings before the administrative law judge--
i.e., 15 days after the date of the decision of the administrative law
judge unless a motion for reconsideration has been filed in the
interim. The decision will be served upon all parties and the Chief
Administrative Law Judge by mail to the last known address. If the
Assistant Secretary is not a party, the final decision will also be
served on the Assistant Secretary, Occupational Safety and Health
Administration, and on the Associate Solicitor, Division of Fair Labor
Standards, U.S. Department of Labor, Washington, DC 20210.
(d) If the Board concludes that the party charged has violated the
law, the final order shall order the party charged to take appropriate
affirmative action to abate the violation, including, where
appropriate, reinstatement of the complainant to that person's former
position, together with the compensation (including back pay), terms,
conditions, and privileges of that employment, and compensatory
damages. At the request of the complainant, the Board shall assess
against the named person all costs and expenses (including attorneys'
and expert witness fees) reasonably incurred.
(e) If the Board determines that the named person has not violated
the law, an order shall be issued denying the complaint. If, upon the
request of the named person, the Board determines that a complaint was
frivolous or was brought in bad faith, the Board may award to the named
person a reasonable attorney's fee, not exceeding $1,000.
Subpart C--Miscellaneous Provisions
Sec. 1979.111 Withdrawal of complaints, objections, and findings;
settlement.
(a) At any time prior to the filing of objections to the findings
or preliminary order, a complainant may withdraw his or her complaint
under the Act by filing a written withdrawal with the Assistant
Secretary. The Assistant Secretary will then determine whether the
withdrawal will be approved. The Assistant Secretary will notify the
named person of the approval of any withdrawal. If the complaint is
withdrawn because of settlement, the settlement shall be approved in
accordance with paragraph (d) of this section.
(b) The Assistant Secretary may withdraw his or her findings or a
preliminary order at any time before the expiration of the 30-day
objection period, provided that no objection has yet been filed, and
substitute new findings or 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 findings or order become final, a party
may withdraw his or her objections to the findings or order by filing a
written withdrawal with the administrative law judge or, if the case is
on review, with the Board. The judge or the Board, as the case may be,
will determine whether the withdrawal will be approved. If the
objections are withdrawn because of settlement, the settlement shall be
approved 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
the Assistant Secretary, the complainant and the named person agree to
a settlement.
(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 administrative law judge if the case
is before the judge, or by the Board if a timely petition for review
has been filed with the Board. A copy of the settlement shall be filed
with the administrative law judge or the Board, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the
administrative law judge, or the Board, shall constitute
[[Page 15461]]
the final order of the Secretary and may be enforced pursuant to
Sec. 1979.112.
Sec. 1979.112 Judicial review.
(a) Within 60 days after the issuance of a final order under
Sec. 1979.110, 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 person resided on the date of the violation. A
final order of the Board is not subject to judicial review in any
criminal or other civil proceeding.
(b) If a timely petition for review is filed, the record of a case,
including the record of proceedings before the administrative law
judge, will be transmitted by the Board to the appropriate court
pursuant to the rules of the court.
Sec. 1979.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order
of reinstatement or a final order or the terms of a settlement
agreement, the Secretary or a person on whose behalf the order was
issued may file a civil action seeking enforcement of the order in the
United States district court for the district in which the violation
was found to have occurred.
Sec. 1979.114 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of this
part, or for good cause shown, the administrative law judge or the
Administrative Review Board on review may, upon application, after
three days notice to all parties and interveners, waive any rule or
issue any orders that justice or the administration of the Act
requires.
[FR Doc. 02-7636 Filed 3-29-02; 8:45 am]
BILLING CODE 4510-26-P