C.F.R. » Title 29 » CHAPTER XVII—OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF LABOR › PART 1982—PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT AND THE FEDERAL RAILROAD SAFETY ACT › Subpart B—Litigation

29 C.F.R. § 1982.109

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 § 1982.104(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 include, where appropriate: Affirmative action to abate the violation; reinstatement with the same seniority status that the employee would have had, but for the retaliation; any back pay with interest; and payment of compensatory damages, including 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 documentation to the Social Security Administration or the Railroad Retirement Board, as appropriate, allocating any back pay award to the appropriate months or calendar quarters. The order may also require the respondent to pay punitive damages up to $250,000.

(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 filed under NTSSA was frivolous or was brought in bad faith, the ALJ may award to the respondent a reasonable attorney fee, 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.

Notes of Decisions
Cited in 15 cases (7 in the last 5 years), 2013–2026 · leading case: Curtis Rookaird v. Bnsf Ry. Co., 908 F.3d 451 (9th Cir. 2018).
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Curtis Rookaird v. Bnsf Ry. Co., 908 F.3d 451 (9th Cir. 2018). · cites it 7× “§ 42121 (b)(2)(B)(iii)– (iv); 29 C.F.R. § 1982.109 (a)–(b). Each stage has its own burden-shifting framework.”
Consol. Rail Corp. v. U.S. Dep't of Labor, 567 F. App'x 334 (6th Cir. 2014). · cites it 2× “” 29 C.F.R. § 1982.109 (a). The burden then shifts to the employer, who must demonstrate “by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected behavior.”
Wooten v. BNSF Ry. Co., 387 F. Supp. 3d 1078 (D. Mont. 2019). “BNSF argues that judgment as a matter of law is warranted in this case because Wooten failed to prove both "the knowledge" and "contributing factor" elements and, additionally, BNSF proved the "same action affirmative defense." As pointed out by Wooten, this is the fifth…”
Paul Parker v. Bnsf Ry. Co., 112 F.4th 687 (9th Cir. 2024). · cites it 7× “§ 42121 (b)(2)(B)(iii); 29 C.F.R. § 1982.109 (a). If the plaintiff makes this showing, the second step of the substantive analysis again shifts the burden to the employer, allowing the employer to present an affirmative defense.”
Despain v. BNSF Ry. Co., 186 F. Supp. 3d 988 (D. Ariz. 2016). “29 C.F.R. §§ 1982.109 (e), 1982.110(b). In that event, the Board’s decision' is “final.”
Kuduk v. BNSF Ry. Co., 980 F. Supp. 2d 1092 (D. Minnesota 2013). “104 (e)(4); see also, 29 C.F.R. § 1982.109 (a), (b); Procedure for Handling of Retaliation Complaints, 75 Fed.”
Clyde Carter, Jr. v. Sec'y, Dep't of Labor, 108 F.4th 1028 (8th Cir. 2024). “”); 29 C.F.R. § 1982.109 (a) (“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.”
Jeremy Hitt v. CSX Transp. Inc, 116 F.4th 1309 (11th Cir. 2024). “§ 42121(b)(2)(B)(ii); see also 29 C.F.R. § 1982.109 (b). Other statutes have the same legal standards.”
Walker (W.D. Tenn. 2026). · cites it 2× “(citing 29 C.F.R. § 1982.109 (b)). BNSF attacks only the contributing factor prong here.”
David Mangold v. Norfolk S. Ry. Co. (6th Cir. 2021). “It is undisputed that Mangold regularly and frequently engaged in protected activities, such as making safety reports.”
Dohogne v. Terminal R.R. Ass'n (S.D. Ill. 2022). “See 29 C.F.R. § 1982.109 (e). As Plaintiff filed a timely review before the ARB, there is no final decision from the Secretary in this case.”
Jones v. BNSF Ry. Co. (D. Mont. 2020). “§ 42121 (b)(2)(B)(iii)–(iv); 29 C.F.R. § 1982.109 (a)–(b).” Rookaird v.”
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