Procedures for the Handling of Discrimination Complaints Under Federal Employee Protection Statutes; Proposed Rule DEPARTMENT OF LABOR

SUMMARY: The Department of Labor (Department or DOL) proposes to amend

the regulations governing the employee ``whistleblower'' protection

provisions of Section 211 (formerly Section 210) of the Energy

Reorganization Act of 1974, as amended, to implement the statutory

changes enacted into law on October 24, 1992, as part of the Energy

Policy Act of 1992. The Department proposes to establish separate

procedures and time frames for the handling of ERA complaints under 29

CFR part 24 to implement the statutory amendments. In addition, a

revised procedure for review by the Secretary of Labor of recommended

decisions of administrative law judges is proposed.

DATES: Comments are due on or before May 16, 1994.

ADDRESSES: Submit written comments to Maria Echaveste, Administrator,

Wage and Hour Division, Employment Standards Administration, U.S.

Department of Labor, room S-3502, 200 Constitution Avenue, NW.,

Washington, DC 20210. Commenters who wish to receive notification of

receipt of comments are requested to include a self-addressed, stamped

post card. As a convenience to commenters, comments may be transmitted

by facsimile (``FAX'') machine to (202) 219-5122. This is not a toll-

free number.

FOR FURTHER INFORMATION CONTACT:

J. Dean Speer, Director, Division of Policy and Analysis, Wage and Hour

Division, Employment Standards Administration, U.S. Department of

Labor, room S-3506, 200 Constitution Avenue, NW., Washington, DC 20210;

telephone (202) 219-8412 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

This regulation contains no reporting or recordkeeping requirements

subject to the Paperwork Reduction Act.

II. Background

The Department of Labor, through the Employment Standards

Administration's Wage and Hour Division (WHD), is responsible under 29

CFR part 24 for investigating complaints under several Federal laws

enacted to protect the environment containing employee whistleblower

provisions that prohibit discriminatory action by employers when

employees report unsafe or unlawful practices of their employers that

adversely affect the environment. These whistleblower protections

prohibit an employer from discharging or otherwise discriminating

against an employee with respect to compensation, terms, conditions or

privileges of employment because the employee engages in any of the

activities specified in the particular statute as a protected activity.

WHD administers seven employee whistleblower protection statutes under

29 CFR part 24, as follows: (1) Safe Drinking Water Act, 42 U.S.C.

300j-9(i); (2) Water Pollution Control Act, 33 U.S.C. 1367; (3) Toxic

Substances Control Act, 15 U.S.C. 2622; (4) Solid Waste Disposal Act,

42 U.S.C. 6971; (5) Clean Air Act, 42 U.S.C. 7622; (6) Energy

Reorganization Act of 1974, 42 U.S.C. 5851; and (7) Comprehensive

Environmental Response, Compensation and Liability Act of 1980, 42

U.S.C. 9610.

The Energy Policy Act of 1992, Public Law 102-486, was enacted on

October 24, 1992. Among other provisions, this new law significantly

amended the employee protection provisions for nuclear whistleblowers

under former Sec. 210 (now Sec. 211) of the ERA; the amendments affect

only ERA whistleblower complaints and do not extend to the procedures

established in 29 CFR part 24 for handling employee whistlblower

complaints under the Federal statutory employee protection provisions

other than the ERA. The legislative amendments to ERA apply to

whistleblower claims filed under Sec. 211(b)(1) of the ERA as amended

(42 U.S.C. 5851(b)(1)) on or after October 24, 1992, the date of

enactment of Sec. 2902 of the Energy Policy Act of 1992 (Sec. 2902,

Pub. L. 102-486; 106 Stat. 2776).

Before the Energy Policy Act of 1992 was enacted, DOL did not have

jurisdiction under former Sec. 210 of the ERA over reprisal complaints

by employees of Department of Energy (DOE) contractors or their

subcontractors. See Adams v. Dole, 927 F.2d 771 (4th Cir. 1991), cert.

denied, 112 S. Ct. 122. The DOE, however, established administrative

procedures for handling complaints of reprisal by such employees not

covered by DOL's procedures (see 10 CFR part 708). As a result of the

statutory amendments to the ERA made by the Energy Policy Act of 1992,

contractors and subcontractors of DOE, except those involved in naval

nuclear propulsion work, are now expressly included within the

statutory definition of a covered ``employer'' and are, therefore,

subject to DOL jurisdiction for complaints filed by their employees of

employer-reprisal for engaging in protected activities under the ERA.

III. Summary of Statutory Changes to ERA Whistleblower Provisions

Section 2902 of Public Law 102-486 (106 Stat. 2776) amended former

Section 210 of the ERA, 42 U.S.C. 5851, by renumbering it as Section

211 of ERA and making the additional changes described below.

Prohibited Acts. Former Section 210 of the ERA protected an

employee against discrimination from an employer because the employee:

(1) Commenced, caused to be commenced, or was about to commence or

cause to be commenced a proceeding under the ERA or the Atomic Energy

Act of 1954 (AEA); (2) testified or was about to testify in any such

proceeding; or (3) assisted or participated or was about to assist or

participate in any manner in such a proceeding ``* * * or in any other

action to carry out the purposes of (the ERA or the AEA).'' The

Department's interpretation, under ERA as well as the other

environmental whistleblower laws which DOL administers, is that

employees who file complaints internally with an employer are protected

from employer reprisals. An employee is protected under 29 CFR

24.2(b)(3) if an employee assists or participates in ``* * * any other

action to carry out the purposes of such Federal (environmental

protection) statute,'' which would encompass such internal complaints.

This conclusion, that whistleblower protections extend to internal

safety and quality control complaints, has been sustained by a number

of courts of appeals. See, e.g., Mackowiak v. University Nuclear

Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Kansas Gas & Elec.

Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S.

1011 (1986); Passaic Valley Sewerage Commissioner v. Department of

Labor, 992 F.2d 474 (3rd Cir. 1993), cert. denied, 62 U.S. L.W. 3334

(1993). Contra, Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.

1984). Under the Energy Policy Act of 1992, ERA's statutory definition

of protected whistleblower activity was expanded to expressly include

employees who file internal complaints with employers, employees who

oppose any unlawful practice under the ERA or the AEA, and employees

who testify before Congress or in any other Federal or State proceeding

regarding the ERA or AEA--thereby overriding the decision of the Fifth

Circuit in Brown & Root.

Revised Definition of ``Employer''. Former Sec. 210 of the ERA

included within the definition of a covered ``employer'' licensees of

the Nuclear Regulatory Commission (NRC), applicants for such licenses,

and their contractors and subcontractors. The statutory amendments

revised the definition of ``employer'' to extend coverage to employees

of contractors or subcontractors of the Department of Energy, except

those involved in naval nuclear propulsion work under E.O. 12344,

licensees of an agreement State under Sec. 274 of the Atomic Energy Act

of 1954, applicants for such licenses, and their contractors and

subcontractors.

Time Period for Filing Complaints. The time period for filing ERA

whistleblower complaints has been expanded from 30 days to 180 days

from the date the violation occurs. Investigations of complaints,

however, will still be conducted under the statute within 30 days of

receipt of the complaint. The ERA amendments apply to all complaints

filed on or after the date of enactment. Thus, complaints previously

filed that were deemed untimely and were therefore dismissed before the

1992 statutory amendments were enacted may be considered timely under

the amended law if the complaint was refiled after October 24, 1992,

and within the new 180-day time frame.

Interim Relief. The Secretary is required under the amended ERA to

order interim relief upon the conclusion of an administrative hearing

and the issuance of a recommended decision that the complaint has

merit. Such interim relief may include all relief that would be

included in a final order of the Secretary except compensatory damages.

Burdens of Proof; Avoidance of Frivolous Complaints. The 1992

Amendments revise the burdens of proof in ERA cases by establishing

statutory burdens of proof and a standard for the dismissal of

complaints which do not present a prima facie case. Before the 1992

Amendments, the ERA itself contained no statutory rules on burdens of

proof--the burdens of proof were based on precedential cases derived

from other discrimination law (see, e.g., Mt. Healthy City School

District Board of Education v. Doyle, 429 U.S. 274 (1977); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);

Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.

1984); and Dartey v. Zack Company of Chicago, Case No. 82-ERA (Decision

of the Secretary, April 25, 1983).

Under the former lines of analysis for the ERA and continuing for

whistleblower complaints under the other six environmental statutes,

once a complainant employee presents evidence sufficient to raise an

inference that protected conduct likely was a ``motivating'' factor in

an adverse action taken by an employer against the employee, it is

necessary for the employer to present evidence that the alleged adverse

treatment was motivated by legitimate, nondiscriminatory reasons. If

the employer presents such evidence, the employee still may succeed by

showing that the proffered reason was not the true reason for the

employment decision; the employee may succeed in this regard by showing

that a discriminatory reason more likely motivated the employer, or by

showing that the employer's proffered explanation is not believable

(``pretext'' cases). In certain cases, the trier of fact may conclude

that the employer was motivated by both prohibited and legitimate

reasons (``dual motive'' cases). In such dual motive cases, the

employer may prevail by showing by a preponderance of the evidence that

it would have reached the same decision even in the absence of the

protected conduct. In pretext cases, rejection of the employer's

proffered reasons, together with the elements of the prima facie case,

may be sufficient to show discrimination. See Dartey v. Zack, supra,

pp. 6-9.

The 1992 amendments added new statutory burdens of proof to the

ERA. The changes have been described on the one hand as a lowering of

the burden on complainants in order to facilitate relief for employees

who have been retaliated against for exercising their statutory rights,

and, on the other hand, as a limitation on the investigative authority

of the Secretary of Labor when the burden is not met.

Under the ERA as amended, a complainant must make a ``prima facie''

showing that protected conduct or activity was ``a contributing

factor'' in the unfavorable personnel action alleged in the complaint,

i.e., that the whistleblowing activity, alone or in combination with

other factors, affected in some way the outcome of the employer's

personnel decision (Section 211(b)(3)(A)). If the complainant does not

make the prima facie showing, the complaint must be dismissed and the

investigation discontinued.

Even in cases where the complaint meets the initial burdens of a

prima facie showing, the investigation must be discontinued if the

employer ``demonstrates, by clear and convincing evidence, that it

would have taken the same unfavorable personnel action'' in the absence

of the protected conduct (Section 211(b)(3)(B)). The complainant is

free, as under prior law, to pursue the case before the administrative

law judge (ALJ) if the Secretary dismisses the complaint.

The ``clear and convincing evidence'' standard is a higher degree

of proof burden on employers than the former ``preponderance of the

evidence'' standard. In the words of Representative George Miller,

Chairman of the House Committee on Interior and Insular Affairs,

``[t]he conferees intend to replace the burden of proof enunciated in

Mt. Healthy v. Doyle, 429 U.S. 274 (1977), with this lower burden in

order to facilitate relief for employees who have been retaliated

against for exercising their rights under section 210. * * *'' 138

Cong. Rec. H 11409 (October 5, 1992).

Thus, under the amendments to ERA, the Secretary must dismiss the

complaint and not investigate (or cease investigating) if either: (1)

The complainant fails to meet the prima facie showing that protected

activity was a contributing factor in the unfavorable personnel action;

or (2) the employer rebuts that showing by clear and convincing

evidence that it would have taken the same unfavorable personnel action

absent the protected conduct.

These new burdens of proof limitations also apply to the

determination as to whether an employer has violated the Act and relief

should be ordered. Thus, 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 (Section 211(b)(3)(C)). Even

if the complainant makes this showing, relief may not be ordered if the

employer satisfies the statutory requirement to demonstrate by ``clear

and convincing evidence'' that it would have taken the same personnel

action in the absence of the protected activity (Section 211(b)(3)(D)).

Other Changes. The ERA whistleblower provisions must be prominently

posted in any place of employment to which the Act applies. The

amendments also include an express provision that the ERA whistleblower

provisions may not be construed to expand, diminish, or otherwise

affect any right otherwise available to an employee under Federal or

State law to redress the employee's discharge or other discriminatory

action taken by the employer against the employee--codifying and

broadening the Supreme Court decision in English v. General Electric

Co., 496 U.S. 72 (1990). Finally, the amendments direct the Nuclear

Regulatory Commission (NRC) and DOE not to delay addressing any

``substantial safety hazard'' during the pendency of a whistleblower

proceeding, and provide that a determination by the Secretary of Labor

that a whistleblower violation has not occurred ``shall not be

considered'' by the NRC and DOE in determining whether a substantial

safety hazard exists.

IV. Summary of Proposed Rule

Section 24.1(a), which lists the Federal statutes providing

employee protections for whistleblowing activities for which the

Department of Labor is responsible for enforcement under this part, is

updated to add the Comprehensive Environmental Response, Compensation

and Liability Act of 1980, 42 U.S.C. 9610.

Section 24.2, describing obligations and prohibited acts, is

revised to reflect the statutory amendments to the protected activities

covered under the ERA, and to state that the Secretary interprets all

of the whistleblower statutes to apply to such internal whistleblowing

activities. The requirements for posting of notices of the employee

protection provisions of the ERA are also added, together with a

provision that failure to post the required notice shall make the

requirement that a complaint be filed with the Administrator within 180

days inoperative, unless the respondent is able to establish that the

employee had actual notice of the provisions. This explicit recognition

that the statute of limitations may be equitably tolled is based on

case law under analogous statutes. See, for example, Kephart v.

Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir. 1978), cert.

denied, 450 U.S. 959 (1981), and Bonham v. Dresser Industries, Inc.,

569 F.2d 187 (3rd Cir. 1977), cert. denied, 439 U.S. 821 (1978),

arising under the Age Discrimination in Employment Act, and Kamens v.

Summit Stainless, Inc., 586 F. Supp. 324 (E.D. Pa. 1984), arising under

the Fair Labor Standards Act.

Section 24.3, concerning complaints, is revised to reflect the 180-

day filing period for complaints under the ERA.

Section 24.4, concerning investigations, is revised to provide for

filing of hearing requests by facsimile (fax), telegram, hand-delivery,

or next-day delivery service (e.g., overnight couriers), to conform the

regulations to current business practices. In addition, the regulation

has been revised to provide that the request for a hearing must be

received within five business days, rather than five calendar days,

from receipt of the Administrator's determination. The regulation has

also been revised to make it clear that the complainant may appeal from

a finding that a violation has occurred where the determination or

order is partially adverse (e.g., where a complaint was only partially

substantiated or the order did not grant all of the requested relief).

A new Sec. 24.5, concerning investigations under the Energy

Reorganization Act, details operation of the new provisions under the

ERA for dismissal of complaints where the employee has not alleged a

prima facie case, or the employer has submitted clear and convincing

evidence that it would have taken the same personnel action in the

absence of the protected activity.

Section 24.6 (formerly Sec. 24.5) makes it clear that the Wage-Hour

Administrator may participate in proceedings as a party or as amicus

curiae. In addition, at the request of the Nuclear Regulatory

Commission, a provision has been added to expressly permit Federal

agencies to participate as amicus curiae, and to receive copies of

pleadings on request.

Section 24.7 (formerly Sec. 24.6), concerning recommended decisions

and orders, is revised to add the statutory requirement that interim

relief be ordered in ERA cases once an administrative law judge issues

a recommended decision that the complaint is meritorious. Section 24.7

is also amended with respect to all whistleblower cases to provide that

the recommended decision of the administrative law judge becomes the

final order of the Secretary if no petition for review is filed.

A new Sec. 24.8 details the procedure for seeking review by the

Secretary of a decision of an Administrative Law Judge.

Former Sec. 24.7, concerning judicial review, and former Sec. 24.8,

concerning enforcement of decisions of the Secretary, have been

removed. These provisions vary from statute to statute among the

whistleblower programs. Furthermore, the types of judicial review or

enforcement actions which are available does not need to be the subject

of rulemaking since it is prescribed by statute and concerns judicial

remedies.

Executive Order 12866

The Department believes that this proposed rule is not a

``significant regulatory action'' within the meaning of Executive Order

12866, in that it is not likely to result in a rule that may: (1) Have

an annual effect on the economy of $100 million or more or adversely

affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities; (2)

create a serious inconsistency or otherwise interfere with an action

taken or planned by another agency; (3) materially alter the budgetary

impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients thereof; or (4) raise novel legal

or policy issues arising out of legal mandates, the President's

priorities, or the principles set forth in Executive Order 12866.

Therefore, no regulatory impact analysis has been prepared.

Regulatory Flexibility Analysis

The Department has determined that the proposed regulation will not

have a significant economic impact on a substantial number of small

entities. The proposal implements regulatory revisions necessitated by

statutory amendments enacted by the Congress which are largely

procedural in nature, or which narrowly extend the scope of the law to

include employees of contractors or subcontractors of the Department of

Energy (except those involved in naval nuclear propulsion work under

E.O. 12344), licensees of an agreement State under the Atomic Energy

Act, applicants for such licenses, and their contractors and

subcontractors. The Department of Labor has certified to this effect to

the Chief Counsel for Advocacy of the Small Business Administration.

Therefore, no regulatory flexibility analysis is required.

This document was prepared under the direction and control of Maria

Echaveste, Administrator, Wage and Hour Division, Employment Standards

Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 24

Employment, Environmental protection.

Accordingly, for the reasons set out in the preamble, 29 CFR part

24 is proposed to be amended as set forth below.

Signed at Washington, DC, on March 10, 1994.

Maria Echaveste,

Administrator, Wage and Hour Division.

PART 24--PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS

UNDER FEDERAL EMPLOYEE PROTECTION STATUTES

1. and 2. The authority citation for part 24 is proposed to be

revised to read as follows:

Authority: 42 U.S.C. 300j-9(i); 33 U.S.C. 1367; 15 U.S.C. 2622;

42 U.S.C. 6971; 42 U.S.C. 7622; 42 U.S.C. 5851; 42 U.S.C. 9610.

3. Section 24.1 is proposed to be amended by revising paragraph (a)

to read as follows:

Sec. 24.1 Purpose and scope.

(a) This part implements the several employee protection provisions

for which the Secretary of Labor has been given responsibility pursuant

to the following Federal statutes: Safe Drinking Water Act, 42 U.S.C.

300j-9(i); Water Pollution Control Act, 33 U.S.C. 1367; Toxic

Substances Control Act, 15 U.S.C. 2622; Solid Waste Disposal Act, 42

U.S.C. 6971; Clean Air Act, 42 U.S.C. 7622; Energy Reorganization Act

of 1974, 42 U.S.C. 5851; and Comprehensive Environmental Response,

Compensation and Liability Act of 1980, 42 U.S.C. 9610.

* * * * *

4. Section 24.2 is proposed to be amended by revising paragraph (a)

and paragraph (b) introductory text, and by adding paragraphs (c) and

(d) to read as follows:

Sec. 24.2 Obligations and prohibited acts.

(a) No employer subject to the provisions of the Federal statute of

which these protective provisions are a part, or to the Atomic Energy

Act of 1954, 42 U.S.C. 2011 et. seq., may discharge any employee or

otherwise discriminate against any employee with respect to the

employee's compensation, terms, conditions, or privileges of employment

because the employee, or any person acting pursuant to the employee's

request, engaged in any of the activities specified in this section.

(b) Any employer is deemed to have violated the particular Federal

law, including the Atomic Energy Act of 1954, and the regulations in

this part if such employer intimidates, threatens, restrains, coerces,

blacklists, discharges, or in any other manner discriminates against

any employee who has:

* * * * *

(c) Under the Energy Reorganization Act, and by interpretation of

the Secretary under any of the other statutes listed in Sec. 24.1 of

this part, any employer is deemed to have violated the particular

Federal law, including the Atomic Energy Act of 1954, and the

regulations in this part if such employer intimidates, threatens,

restrains, coerces, blacklists, discharges, or in any other manner

discriminates against any employee who has:

(1) Notified the employer of an alleged violation of such Federal

statute;

(2) Refused to engage in any practice made unlawful by such Federal

statute, if the employee has identified the alleged illegality to the

employer; or

(3) Testified before Congress or at any Federal or State proceeding

regarding any provision (or proposed provision) of such Federal

statute.

(d) (1) Every employer subject to the Energy Reorganization Act of

1974, as amended, shall prominently post and keep posted in any place

of employment to which the employee protection provisions of the Act

applies a notice prepared or approved by the Department of Labor that

explains the employee protection provisions of the Act and the

regulations in this part. Copies of such notice may be obtained from

the Administrator of the Wage and Hour Division, Employment Standards

Administration, U.S. Department of Labor, Washington, DC 20210.

(2) Where the notice required by paragraph (d)(1) of this section

has not been posted, the requirement in Sec. 24.3(b)(2) that a

complaint be filed with the Administrator within 180 days of an alleged

violation shall be inoperative unless the respondent establishes that

the complainant had notice of that requirement. If it is established

that the notice was posted after the alleged discriminatory action

occurred or that the complainant later obtained actual notice, the 180

days shall run from that date.

5. Section 24.3 is proposed to be amended by revising paragraphs

(b) and (d) to read as follows:

Sec. 24.3 Complaint.

* * * * *

(b) Time of filing. (1) Except as provided in paragraph (b)(2) of

this section, any complaint shall be filed within 30 days after the

occurrence of the alleged violation. For the purpose of determining

timeliness of filing, a complaint filed by mail shall be deemed filed

as of the date of mailing.

(2) Under the Energy Reorganization Act of 1974, any complaint

shall be filed within 180 days after the occurrence of the alleged

violation.

* * * * *

(d) Place of filing. A complaint may be filed in person or by mail

at the nearest local office of the Wage and Hour Division, listed in

most telephone directories under U.S. Government, Department of Labor,

Employment Standards Administration, Wage-Hour Division. A complaint

may also be filed with the Office of the Administrator, Wage and Hour

Division, Employment Standards Administration, U.S. Department of

Labor, Washington, DC 20210.

6. Section 24.4 is proposed to be amended by revising paragraph

(d)(2) and (d)(3) and by adding a new paragraph (d)(4) to read as

follows:

Sec. 24.4 Investigations.

* * * * *

(d) (1) ***

(2) If on the basis of the investigation the Administrator

determines that the complaint is without merit, the notice of

determination shall include or be accompanied by notice to the

complainant that the notice of determination shall become the final

order of the Secretary denying the complaint unless within five

business days of its receipt the Chief Administrative Law Judge

receives from the complainant a request for a hearing filed by

facsimile (fax), telegram, hand delivery, or next-day delivery service.

A copy of any request for a hearing shall be sent by the complainant to

the respondent (employer) on the same day that the hearing is

requested, by facsimile (fax), telegram, hand delivery, or next-day

delivery service.

(3) If on the basis of the investigation the Administrator

determines that a violation has occurred, the notice of the

determination shall include an appropriate order to abate the

violation, and notice to the respondent and complainant that the order

shall become the final order of the Secretary unless within five

business days of its receipt the Chief Administrative Law Judge

receives from the respondent or from complainant (where the

determination or order is partially adverse) a request for a hearing

filed by facsimile (fax), telegram, hand delivery, or next-day delivery

service. A copy of any request for a hearing shall be sent to the

complainant or respondent, as appropriate, on the same day that the

hearing is requested, by facsimile (fax), telegram, hand delivery, or

next-day delivery service.

(4) Copies of any requests for a hearing shall be sent to the

Administrator, Wage and Hour Division, and to the Associate Solicitor,

Division of Fair Labor Standards, U.S. Department of Labor, Washington,

DC 20210, on the same day that the hearing is requested by facsimile

(fax), telegram, hand delivery, or next-day delivery service.

7. Section 24.7 is proposed to be removed, Sec. 24.6 is proposed to

be redesignated as Sec. 24.7; and Sec. 24.5 is proposed to be

redesignated as Sec. 24.6 and amended by adding new paragraphs (f) and

(g) as follows:

Sec. 24.6 Hearings.

* * * * *

(f) (1) At the Administrator's discretion, the Administrator may

participate as a party or participate as amicus curiae at any time in

the proceedings. This right to participate shall include, but is not

limited to, the right to petition for review of a recommended decision

of an administrative law judge, including a decision, based on a

settlement agreement between complainant and respondent, to dismiss a

complaint or to issue an order encompassing the terms of the

settlement.

(2) Copies of pleadings in all cases, whether or not the

Administrator is participating in the proceeding, shall be sent to the

Administrator, Wage and Hour Division, and to the Associate Solicitor,

Division of Fair Labor Standards, U.S. Department of Labor, Washington,

DC 20210.

(g) (1) A Federal agency which is interested in a proceeding may

participate as amicus curiae at any time in the proceedings, at the

agency's discretion.

(2) At the request of a Federal agency which is interested in a

proceeding, copies of all pleadings in a case shall be served on the

Federal agency, whether or not the agency is participating in the

proceeding.

8. A new Sec. 24.5 is proposed to be added to read as follows:

Sec. 24.5 Investigations under the Energy Reorganization Act.

(a) In addition to the procedures set forth in Sec. 24.4 of this

part, this section sets forth special procedures applicable only to

investigations under the Energy Reorganization Act.

(b) (1) A complaint of alleged violation shall be dismissed unless

the complainant has made a prima facie showing that protected behavior

or conduct as provided in paragraph (b) of Sec. 24.2 was a contributing

factor in the unfavorable personnel action alleged in the complaint.

(2) The complaint, supplemented as appropriated by interviews of

the complainant, must allege the existence of facts and evidence to

meet the required elements of a prima facie case, as follows:

(i) The employee engaged in a protected activity or conduct, as set

forth in Sec. 24.2;

(ii) The respondent knew that the employee engaged in the protected

activity; and

(iii) The employee has suffered an unfavorable personnel action

under circumstances sufficient to raise the inference that the

protected activity was likely a contributing factor in the unfavorable

action.

(3) For purposes of determining whether to investigate, the

complainant will be considered to have met the required burden if the

complaint on its face, supplemented as appropriate through interviews

of the complainant, alleges the existence of facts and either direct or

circumstantial evidence to meet the required elements of a prima facie

case, i.e., to give rise to an inference that the respondent knew that

the employee engaged in protected activity, and that the protected

activity was likely a reason for the personnel action. Normally the

burden is satisfied, for example, if it is shown that the adverse

personnel action took place shortly after the protected activity,

giving rise to the inference that it was a factor in the adverse

action. If these elements are not substantiated in the investigation,

the investigation will cease.

(c) (1) Notwithstanding a finding that a complainant has made a

prima facie showing required by this section with respect to complaints

filed under the Energy Reorganization Act, an investigation of the

complainant's complaint under that Act shall be discontinued if the

respondent demonstrates by clear and convincing evidence that it would

have taken the same unfavorable personnel action in the absence of the

complainant's protected behavior or conduct.

(2) Upon receipt of a complaint under the Energy Reorganization

Act, the respondent shall be advised that any evidence it may wish to

submit to rebut the allegations in the complaint must be received

within five (5) business days from receipt of notification of the

complainant. If the respondent fails to make a timely response or if

the response does not demonstrate by clear and convincing evidence that

the unfavorable action would have occurred absent the protected

conduct, the investigation shall proceed. The investigation shall

proceed whenever it is necessary or appropriate to confirm or verify

the information provided by respondent.

(d) (1) Whenever the Administrator dismisses a complaint pursuant

to this section without completion of an investigation, the

Administrator shall give notice of the dismissal, which shall contain a

statement of reasons therefor, by certified mail to the complainant,

the respondent, and their representatives. At the same time the

Administrator shall file with the Chief Administrative Law Judge, U.S.

Department of Labor, a copy of the complaint and a copy of the notice

of dismissal. The notice of dismissal shall include notice that the

dismissal shall become the final order of the Secretary denying the

complaint unless within five business days of its receipt the

complainant files with the Chief Administrative Law Judge by facsimile

(fax), telegram, hand delivery, or next-day delivery service, a request

for a hearing on the complaint.

(2) Copies of any request for a hearing shall be sent by the

complainant to the respondent and to the Administrator, Wage and Hour

Division, and the Associate Solicitor, Division of Fair Labor

Standards, U.S. Department of Labor, Washington, DC 20210, on the same

day that the hearing is requested, the facsimile (fax), telegram, hand

delivery, or next-day delivery service.

9. Newly designated Sec. 24.7 is proposed to be revised to read as

follows:

Sec. 24.7 Recommended decision and order.

(a) The administrative law judge shall issue a recommended decision

within 20 days after the termination of the proceeding at which

evidence was submitted. The recommended decision shall contain

appropriate findings, conclusions, and a recommended order and be

served upon all parties to the proceeding.

(b) In cases under the Energy Reorganization Act, 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 respondent demonstrates by clear and

convincing evidence that it would have taken the same unfavorable

personnel action in the absence of such behavior. The proceeding before

the administrative law judge shall be a proceeding on the merits of the

complaint. Neither the Administrator's determination to dismiss a

complaint pursuant to Sec. 24.5 of this part without completing an

investigation nor the Administrator's determination not to dismiss a

complaint is subject to review by the administrative law judge, and a

complaint may not be remanded for the completion of an investigation on

the basis that such a determination to dismiss was made in error.

(c) (1) Upon the conclusion of the hearing and the issuance of a

recommended decision that the complaint has merit, the administrative

law judge shall issue a recommended order that the respondent take

appropriate affirmative action to abate the violation, including

reinstatement of the complainant to the respondent's former or

substantially equivalent position, if desired, together with the

compensation (including back pay), terms, conditions, and privileges of

that employment, and, when the administrative law judge deems if

appropriate, 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.

(2) In cases brought under the Energy Reorganization Act, when an

administrative law judge issues a recommended order that the complaint

has merit, the judge shall also issue a preliminary order providing the

relief specified in Sec. 24.7(c)(1) of this part with the exception of

compensatory damages. This preliminary order shall constitute the

preliminary order of the Secretary and shall be effective immediately,

whether or not a petition for review is filed with the Secretary. Any

award of compensatory damages shall not be effective until the

completion of any review by the Secretary.

(d) The recommended decision of the administrative law judge shall

become the final order of the Secretary unless, pursuant to Sec. 24.8

of this part, a petition for review is timely filed with Secretary.

10. and 11. Section 24.8 is proposed to be revised to read as

follows:

Sec. 24.8 Review by the Secretary.

(a) Any party desiring review of a recommended decision of the

administrative law judge shall file a petition for review with the

Secretary. To be effective, such a petition for review must be received

within ten business days of the date of the decision of the

administrative law judge, and shall be served on all parties and on the

Chief Administrative Law Judge.

(b) Copies of the petition and all briefs shall be served on the

Administrator, Wage and Hour Division, and on the Associate Solicitor,

Division of Fair Labor Standards, U.S. Department of Labor, Washington,

DC 20210.

(c) The Secretary's final decision shall be issued within 90 days

of the receipt of the complaint and shall be served upon all parties

and the Chief Administrative Law Judge by mail to the last known

address.

(d) (1) If the Secretary concludes that the party charged has

violated the law, the final order shall order the party charged to take

appropriate affirmative action to abate the violation, including

reinstatement of the complainant to that person's former or

substantially equivalent position, if desired, together with the

compensation (including back pay), terms, conditions, and privileges of

that employment, and, when appropriate, 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.

(2) If such a final order is issued, the Secretary, at the request

of the complainant, shall assess against the respondent a sum equal to

the aggregate amount of all costs and expenses (including attorney and

expert witness fees) reasonably incurred by the complainant, as

determined by the Secretary, for, or in connection with, the bringing

of the complaint upon which the order was issued.

(e) If the Secretary determines that the party charged has not

violated the law, an order shall be issued denying the complaint.

[FR Doc. 94-6018 Filed 3-15-94; 8:45 am]

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