(a) Notice of hearing. The administrative law judge to whom the
case is assigned shall, within seven calendar days following receipt of
the request for hearing, notify the parties by certified mail, directed
to the last known address of the parties, of a day, time and place for
hearing. All parties shall be given at least five days notice of such
hearing. However, because of the time constraints upon the Secretary by
the above statutes, no requests for postponement shall be granted
except for compelling reasons or with the consent of all parties.
(b) Consolidated hearings. When two or more hearings are to be
held, and the same or substantially similar evidence is relevant and
material to the matters at issue at each such hearing, the Chief
Administrative Law Judge may, upon motion by any party or on his own or
her own motion, order that a consolidated hearing be conducted. Where
consolidated hearings are held, a single record of the proceedings
shall be made and the evidence introduced in one case may be considered
as introduced in the others, and a separate or joint decision shall be
made, as appropriate.
(c) Place of hearing. The hearing shall, where possible, be held at
a place within 75 miles of the complainant's residence.
(d) Right to counsel. In all proceedings under this part, the
parties shall have the right to be represented by counsel.
(e) Procedures, evidence and record--(1) Evidence. Formal rules of
evidence shall not apply, but rules or principles designed to assure
production of the most probative evidence available shall be applied.
The administrative law judge may exclude evidence which is immaterial,
irrelevant, or unduly repetitious.
(2) Record of hearing. All hearings shall be open to the public and
shall be mechanically or stenographically reported. All evidence upon
which the administrative law judge relies for decision shall be
contained in the transcript of testimony, either directly or by
appropriate reference. All exhibits and other pertinent documents or
records, either in whole or in material part, introduced as evidence,
shall be marked for identification and incorporated into the record.
(3) Oral argument; briefs. Any party, upon request, may be allowed
a reasonable time for presentation of oral argument and to file a
prehearing brief or other written statement of fact or law. A copy of
any such prehearing brief or other written statement shall be filed
with the Chief Administrative Law Judge or the administrative law judge
assigned to the case before or during the proceeding at which evidence
is submitted to the administrative law judge and shall be served upon
each party. Post-hearing briefs will not be permitted except at the
request of the administrative law judge. When permitted, any such brief
shall be limited to the issue or issues specified by the administrative
law judge and shall be due within the time prescribed by the
administrative law judge.
(4) Dismissal for cause. (i) The administrative law judge may, at
the request of any party, or on his or her own motion, issue a
recommended decision and order dismissing a claim:
(A) Upon the failure of the complainant or his or her
representative to attend a hearing without good cause; or
(B) Upon the failure of the complainant to comply with a lawful
order of the administrative law judge.
(ii) In any case where a dismissal of a claim, defense, or party is
sought, the administrative law judge shall issue an order to show cause
why the dismissal should not be granted and afford all parties a
reasonable time to respond to such order. After the time for response
has expired, the administrative law judge shall take such action as is
appropriate to rule on the dismissal, which may include a recommended
order dismissing the claim, defense or party.
(f)(1) At the Assistant Secretary's discretion, the Assistant
Secretary 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 Assistant
Secretary is participating in the proceeding, shall be sent to the
Assistant Secretary, Occupational Safety and Health Administration, and
to the Associate Solicitor, Division of Fair Labor Standards, U.S.
Department of Labor, Washington, D.C. 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.
