29 C.F.R. § 1979.109

Decision and orders of the administrative law judge

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(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 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 without completing an investigation pursuant to § 1979.104(b) nor the Assistant Secretary's determination to proceed with an investigation is subject to review by the administrative law judge, 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 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 attorney's 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 ten business days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board.

Notes of Decisions

Cited in 7 cases (3 in the last 5 years), 2008–2026 · leading case: Hoffman v. Solis, 636 F.3d 262 (6th Cir. 2011).

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Hoffman v. Solis, 636 F.3d 262 (6th Cir. 2011). “§ 42121 (b)(2)(B)(iv); 29 C.F.R. § 1979.109 (a). The ALJ’s findings that Hoffman engaged in protected activity numerous times when he voiced safety concerns, and that his promotion denial constituted adverse action, are not contested on appeal.”

Ameristar Airways, Inc. v. Admin. Review Bd., 650 F.3d 562 (5th Cir. 2011). “§ 42121 (b)(2)(B)(iv); see also 29 C.F.R. § 1979.109 (a). . Allen v. Admin.”

Ameristar Airways, Inc. v. Us Dept. of Labor, 650 F.3d 562 (5th Cir. 2011). “§ 42121 (b)(2)(B)(iv); see also 29 C.F.R. § 1979.109 (a). [18] Allen v. Admin.”

Rollins v. Am. Airlines, Inc., 279 F. App'x 730 (10th Cir. 2008). · cites it 2× “See 29 C.F.R. § 1979.109 (c) (ALJ decision “lifting an order of reinstatement .”

Darren Kossen v. Asian Pac. Airlines (9th Cir. 2023). “§ 42121 (b)(2)(B)(iii); 29 C.F.R. § 1979.109 (a). In sum, because the ARB neither erred in concluding that the ALJ did not abuse its discretion in excluding evidence or in finding that that the ALJ’s determination that Kossen failed to prove an adverse action was supported by…”

Michael Neely v. Usdol (9th Cir. 2024). “§ 42121 (b)(2)(B)(iv); 29 C.F.R. § 1979.109 (a) (relief may not be ordered if employer “demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of any protected behavior”).”

Nicholas Servs., LLC; & Corr Flight S., Inc. v. United States Dep't of Labor, Lori Chavez-Deremer, in her offic (N.D. Miss. 2026). “15(h), (j) (providing DOL ALJs’ power to control evidence and impose sanctions); 29 C.F.R. § 1979.109 (c) (“All … portions of the judge’s order shall be effective ten business days after the date of the decision unless a timely petition for review has been filed with the [ARB].”

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