29 C.F.R. § 1978.109

Decisions and orders of the administrative law judge

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(a) The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint.

(b) If the complainant or the Assistant Secretary 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 the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 1978.104(e) nor the Assistant Secretary'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 with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (backpay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant may have incurred); and payment of punitive damages up to $250,000. Interest on backpay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.

(2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint.

(e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, 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. For ALJ decisions issued on or after the effective date of the interim final rule, August 31, 2010, 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. Any ALJ decision issued on or after the effective date of the interim final rule, August 31, 2010, will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the decision for review.

Notes of Decisions

Cited in 27 cases, 1987–2019 · leading case: Brock v. Roadway Express, Inc., 481 U.S. 252 (1987).

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Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). · cites it 4× “, at 42094 (proposed 29 CFR § 1978.109 (a)). The Secretary then must issue a final order within 120 days.”

Yellow Freight Sys., Inc. v. Robert B. Reich, Sec'y of Labor James R. Hornbuckle, Jr., 8 F.3d 980 (4th Cir. 1993). · cites it 4× “§ 2305(c)(2)(A)-(B); see also 29 C.F.R. § 1978.109 (c)(1), subject to appellate court review, 49 U.”

Roadway Express, Inc. v. Elizabeth Dole, Sec'y, U.S. Dep't of Labor, 929 F.2d 1060 (5th Cir. 1991). · cites it 3× “29 C.F.R. § 1978.109 (c)(3). A Roadway continues to argue at this late stage of the proceedings that the drivers failed to establish a prima facie case of discrimination under § 405(b).”

Dalton v. United States Dep't of Labor, 58 F. App'x 442 (10th Cir. 2003). · cites it 4× “See 29 C.F.R. § 1978.109 (c)(3). Because substantial evidence supported dispositive findings by the ALJ, we reverse the Board’s order.”

Calmat Co. v. U.S. Dep't of Labor, Admin. Review Bd. Robert E. Germann, 364 F.3d 1117 (9th Cir. 2004). “1995); 29 C.F.R. § 1978.109 (c)(3). With respect to CalMat’s hearsay objections, interpretation of the hearsay rule is a question of law reviewed de novo.”

Transam Trucking, Inc. v. Admin. Review Bd., 833 F.3d 1206 (10th Cir. 2016). “29 C.F.R. § 1978.109 (a) (providing a complainant must demonstrate by “a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint”); see also 49 U.”

Formella v. United States Dep't of Labor, 628 F.3d 381 (7th Cir. 2010). “See 29 C.F.R. § 1978.109 (c)(1). The decision of the ARB is in turn subject to review in the appropriate court of appeals.”

Roadway Express, Inc. v. United States Dep't of Labor, 495 F.3d 477 (7th Cir. 2007). “1998) (citing 29 C.F.R. § 1978.109 (c)(3)). Reviewing courts must also sustain an ALJ’s findings of fact “unless they are ‘unsupported by substantial evidence’ in the record as a whole.”

Clean Harbors Env't Servs., Inc. v. Alexis M. Herman, Sec'y, United States Dep't of Labor & Thomas Dutkiewicz, Intervenor, 146 F.3d 12 (1st Cir. 1998). “” See 29 C.F.R. § 1978.109 (c)(3). It also adopted the ALJ’s assessments of witness credibility.”

R & B Transp., LLC v. United States Dep't of Labor, 618 F.3d 37 (1st Cir. 2010). “Pursuant to 29 C.F.R. § 1978.109 (a), the ALJ’s recommendation was automatically forwarded for review to the ARB.”

Mcclain v. Pfizer, Inc., 692 F. Supp. 2d 229 (D. Conn. 2010). “In determining that the March 2, 2006, letter to McClain was not OSHA’s final decision, the Court cited 29 C.F.R. § 1978.109 (c) to identify OSHA’s procedure and determined: OSHA’s initial ruling on a complaint can be appealed to an ALJ.”

Castle Coal & Oil Co., Inc. v. Robert B. Reich, Sec'y of Labor, United States Dep't of Labor, 55 F.3d 41 (2d Cir. 1995). “” 29 CFR § 1978.109 (c)(3) (“STAA Rule 109(c)(3)”).”

Show all 27 citing cases →

— 29 C.F.R. § 1978.109(c)(3) — 3 cases

Clean Harbors v. Herman (1st Cir. 1998).

BSP Trans, Inc. v. USDOL (1st Cir. 1998).

Clean Harbors v. Herman (1st Cir. 1998).

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