29 C.F.R. § 1980.109

Decision 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 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 § 1980.104(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 order will provide all relief necessary to make the employee whole, including, reinstatement with the same seniority status that the complainant would have had but for the retaliation; back pay with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. 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 calendar quarters.

(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 judge 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). 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.

Notes of Decisions

Cited in 20 cases (8 in the last 5 years), 2004–2025 · leading case: Bechtel v. Administrative Review Board, United States Department of Labor

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Bechtel v. Administrative Review Board, United States Department of Labor (2013) ca2 · cites it 9× “§ 42121 (b)(2)(B)(iii), (iv); 29 C.F.R. § 1980.109 (a), (b), 4 our sister Courts of Appeals have.”

Jeffrey Wiest v. Tyco Electronics Corp (2016) ca3 · cites it 2× “” 29 C.F.R. § 1980.109 (b); accord Araujo, 708 F.”

Feldman v. Law Enforcement Associates Corp. (2014) ca4 · cites it 2× “See 29 C.F.R. § 1980.109 (a); 49 U.S.C. § 42121 (b)(2)(B)(iii).”

Lockheed Martin Corp. v. Administrative Review Board (2013) ca10 “§ 42121 (b)(2)(B)(I); 29 C.F.R. § 1980.109 (a); Harp, 558 F.3d at 723 .”

Hanna v. WCI Communities, Inc. (2004) flsd “” 29 C.F.R. § 1980.109 . Therefore, the court holds, as a matter of law, that the plain language of 18 U.”

Christopher Garvey v. Administrative Review Board (2022) cadc “” 29 C.F.R. § 1980.109 (c). The ALJ’s decision is subject to discretionary review by the DOL Administrative Review Board.”

Tice v. Bristol-Myers Squibb Co. (2007) pawd “pursuant to 29 C.F.R. § 1980.109 (c).” Id. at 51 . The assertion of plaintiff regarding the condoning and accepting of false call reports by defendant was raised and found to be without merit by the ALJ.”

Westawski v. Merck & Co. (2016) paed “(quoting 29 C.F.R. § 1980.109 (b)). Put differently, if a plaintiff establishes a prima facie case, a defendant can nevertheless prevail if it establishes, by clear and convincing evidence,- that the putative protected activity was not a “but for” cause of the unfavorable…”

Deltek, Inc. v. Department of Labor, Administrative Review Board (2016) ca4 · cites it 2× “29 C.F.R. § 1980.109 (a). The contributing factor standard of causation is not “toothless.”

Mozingo v. South Financial Group, Inc. (2007) scd “” 29 C.F.R. § 1980.109 (a). “Any party desiring to seek review, including judicial review, of a decision of the administrative law judge .”

Botta v. PricewaterhouseCoopers LLP (2021) cand · cites it 2× “29 C.F.R. § 1980.109 (a); see also id. § 1980.”

Anita Johnson v. U.S. Department of Labor (2020) ca11 “2013) (setting forth the elements and burdens of proof for SOX whistleblower retaliation claims); 29 C.F.R. § 1980.109 (providing that a complainant must establish “by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged…”

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