29 C.F.R. § 24.109

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 (c) of this section, as appropriate.

(b)(1) In cases arising under the ERA, a determination that a violation has occurred may only be made if the complainant has demonstrated by a preponderance of the evidence that the protected activity was a contributing factor in the adverse action alleged in the complaint. If the complainant has demonstrated by a preponderance of the evidence that the protected activity was a contributing factor in the adverse action alleged in the complaint, 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.

(2) In cases arising under the six environmental statutes listed in § 24.100(a), a determination that a violation has occurred may only be made if the complainant has demonstrated by a preponderance of the evidence that the protected activity caused or was a motivating factor in the adverse action alleged in the complaint. If the complainant has demonstrated by a preponderance of the evidence that the protected activity caused or was a motivating factor in the adverse action alleged in the complaint, relief may not be ordered if the respondent demonstrates by a preponderance of the evidence that it would have taken the same adverse action in the absence of the protected activity.

(c) Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 24.104(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 order shall direct the respondent to take appropriate affirmative action to abate the violation, including 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. In cases arising under the Safe Drinking Water Act or the Toxic Substances Control Act, exemplary damages may also be awarded when appropriate. At the request of the complainant, the ALJ shall assess against the respondent, all costs and expenses (including attorney fees) reasonably incurred.

(2) In cases brought under the Energy Reorganization Act, when an ALJ issues a decision that the complaint has merit and orders the relief prescribed in paragraph (d)(1) of this section, the relief ordered, with the exception of compensatory damages, shall be effective immediately upon receipt, whether or not a petition for review is filed with the ARB.

(3) 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 for Fair Labor Standards. Any ALJ's decision issued under any of the statutes listed in § 24.100(a) will be effective 10 business days after the date of the decision unless a timely petition for review has been filed with the ARB. An ALJ's order issued under the Energy Reorganization Act will be effective immediately upon receipt, except for that portion of the order awarding any compensatory damages.

Notes of Decisions

Cited in 7 cases (1 in the last 5 years), 2013–2022 · leading case: DeKalb Cnty. v. U.S. Dep't of Labor, 812 F.3d 1015 (11th Cir. 2016).

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DeKalb Cnty. v. U.S. Dep't of Labor, 812 F.3d 1015 (11th Cir. 2016). · cites it 2× “” 29 C.F.R. § 24.109 (b)(2). A motivating factor is “a substantial factor.”

Hugh Kaufman v. Thomas Perez, 745 F.3d 521 (D.C. Cir. 2014). · cites it 2× “2012); 29 C.F.R. § 24.109 . Critically, given that the ALJ and the Board dismissed the claims as being outside the statute of limitations, Kaufman was required to show that at least one of Claims 2–8 evidenced all the elements of a prima facie case on or after March 5, 2001.”

Hasan v. United States Dep't of Labor, 553 F. App'x 135 (3rd Cir. 2014). · cites it 3× “” 29 C.F.R. § 24.109 (b)(1). III. Upon review of the record, we conclude that substantial evidence supports the ARB’s conclusion that Hasan failed to establish that his past whistleblowing activity was a contributing factor in Ener-con’s decision not to hire him.”

Onysko v. Admin. Review Bd., 549 F. App'x 749 (10th Cir. 2013). “The element of causation required Onysko to “demonstrate[ ] by a preponderance of the evidence that the protected activity caused or was a motivating factor in the adverse action alleged in the complaint.”

Steven Witbeck v. Usdol (9th Cir. 2018). “109 (a) (to prevail on a SOX whistleblower claim, the complainant must “demonstrate[] by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint”); 29 C.F.R. § 24.109 (b)(2) (to prevail on a Clean Water Act…”

Onysko v. Walsh (10th Cir. 2022). “” 29 C.F.R. § 24.109 (b)(2); see also Hall, 476 F.”

Hugh Kaufman v. Thomas Perez (D.C. Cir. 2014). “2012); 29 C.F.R. § 24.109 . Critically, given that the ALJ and the Board dismissed the claims as being outside the statute of limitations, Kaufman was required to show that at least one of Claims 2–8 evidenced all the elements of a prima facie case on or after March 5, 2001.”

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