First, email Boards-EFSR-Help@dol.gov and request technical help. If you are still having difficulty submitting a filing, you may email it to ARB-Correspondence@dol.gov. Include within your email submission a certification and proof that you took the step of reaching out to Boards-EFSR-Help@dol.gov for assistance before making the filing via email. See 29 C.F.R. Part 26, which sets forth rules about filing through the Board's electronic case management system (EFS).
The ARB is an independent decision-making body with jurisdiction to consider and decide appeals from final decisions of the Administrator of the Wage and Hour Division, authorized representatives of the Administrator, and Administrative Law Judges. Decisions of the ARB are final decisions of the DOL, subject to discretionary review by the Secretary of Labor.
The ARB decides cases on behalf of the Secretary of Labor which come before the Department under more than 70 statutes and executive Orders relating to public transportation safety and security (for example, commercial trucking, railroads, airlines, public transportation, and maritime and shipping), temporary immigration programs, child labor, employment retaliation, securities fraud (including the Sarbanes-Oxley Act), federal construction and service contracts (including the Davis Bacon Act and the Service Contract Act), job training, and other laws. The cases are generally initiated with the filing of a complaint with the Occupational Safety and Health Administration (OSHA) or the Wage and Hour Division (WHD), which are then considered by the Office of Administrative Law Judges (OALJ), whose decisions are then appealed to the ARB.
A full listing of cases appealable to ARB are available in the Board's Delegation here: Delegation of Authority.
Pro se parties are strongly encouraged to use the EFS system.
Parties represented by counsel MUST use the Board's EFS system, absent good cause shown.
Information regarding registration for access to the system, as well as a step-by-step user guide and FAQs, can be found at https://efile.dol.gov.
Self-represented (pro se) litigants may choose to file an appeal, pleading, or other document with the Board in paper form (no electronic disks or flash drives will be accepted) by regular mail or personal or commercial delivery at U.S. Department of Labor, Administrative Review Board, ATTN: Office of the Clerk of the Appellate Boards (OCAB), 200 Constitution Ave. NW, Washington, DC 20210, or by electronically filing with the Board's eFile/eServe (EFS) system at https://efile.dol.gov.
Although there are potentially exceptions for petitions for review only, parties may not file by email absent extraordinary circumstances.
Petitions for Review must include what is required by the program regulations in your case. Typically, they must be in writing and they must identify what you are objecting to in the decision being appealed. Many of the program regulations state that if you do not identify what you are objecting to in the Petition for Review, objections you have may be waived on appeal.
The Petition for Review can typically be short, and a petitioner will usually be given a chance to expand on his or her arguments in subsequent briefing. Other than it being in writing and preferably being called a "Petition for Review," it does not typically need to be in any particular form or formatting. A Petition for Review should also be filed on or before the applicable deadline. If you need more time, you may request it by filing a Motion for Extension of Time (in any such requests you should specify how much time you are requesting and—why you are requesting it).
If the petitioning party is filing through the Board's electronic service and filing—EFS system—the petition for review will be served on EFS registered users and Department of Labor agencies that are required to be served by program regulations. If you file in any other manner, or if the opposing party is not a registered user in EFS, you are responsible for serving your Petition on all necessary persons.
Petitions must be written based on the specifics of your case, but an example of a sufficient petition for review may be:
I am objecting to the ALJ's findings that I did not engage in protected activity (ALJ Decision at 5), did not have an objectively reasonable belief that I engaged in protected activity (ALJ Decision at 6), did not suffer an adverse action (ALJ Decision at 12), that there was no causation (ALJ Decision at 17), and that the employer proved by clear and convincing evidence that it would have taken the same action absent my protected activity (ALJ Decision at 25). I am also objecting that the ALJ did not admit my evidence at CX 12 (Hearing Transcript at 544).
Again, because many of the program regulations state that objections a party fails to raise in its Petition for Review may be waived on appeal, parties should endeavor to do so as thoroughly as possible.
This guidance is meant to be helpful and in no way binding on the Board for any action taken or not taken. Also note that this guidance and example is not a substitute for legal advice and parties are encouraged to secure legal counsel for appeals before the Board.
First, email Boards-EFSR-Help@dol.gov and request technical help. If you are still having difficulty submitting a filing, you may email it to ARB-Correspondence@dol.gov. Include within your email submission a certification and proof that you took the step of reaching out to Boards-EFSR-Help@dol.gov for assistance before making the filing via email. See 29 C.F.R. Part 26, which sets forth rules about filing through the Board's electronic case management system (EFS).
The ARB is an independent decision-making body with jurisdiction to consider and decide appeals from final decisions of the Administrator of the Wage and Hour Division, authorized representatives of the Administrator, and Administrative Law Judges. Decisions of the ARB are final decisions of the DOL, subject to discretionary review by the Secretary of Labor.
The ARB decides cases on behalf of the Secretary of Labor which come before the Department under more than 70 statutes and executive Orders relating to public transportation safety and security (for example, commercial trucking, railroads, airlines, public transportation, and maritime and shipping), temporary immigration programs, child labor, employment retaliation, securities fraud (including the Sarbanes-Oxley Act), federal construction and service contracts (including the Davis Bacon Act and the Service Contract Act), job training, and other laws. The cases are generally initiated with the filing of a complaint with the Occupational Safety and Health Administration (OSHA) or the Wage and Hour Division (WHD), which are then considered by the Office of Administrative Law Judges (OALJ), whose decisions are then appealed to the ARB.
A full listing of cases appealable to ARB are available in the Board's Delegation here: Delegation of Authority.
Pro se parties are strongly encouraged to use the EFS system.
Parties represented by counsel MUST use the Board's EFS system, absent good cause shown.
Information regarding registration for access to the system, as well as a step-by-step user guide and FAQs, can be found at https://efile.dol.gov.
Self-represented (pro se) litigants may choose to file an appeal, pleading, or other document with the Board in paper form (no electronic disks or flash drives will be accepted) by regular mail or personal or commercial delivery at U.S. Department of Labor, Administrative Review Board, ATTN: Office of the Clerk of the Appellate Boards (OCAB), 200 Constitution Ave. NW, Washington, DC 20210, or by electronically filing with the Board's eFile/eServe (EFS) system at https://efile.dol.gov.
Although there are potentially exceptions for petitions for review only, parties may not file by email absent extraordinary circumstances.
Petitions for Review must include what is required by the program regulations in your case. Typically, they must be in writing and they must identify what you are objecting to in the decision being appealed. Many of the program regulations state that if you do not identify what you are objecting to in the Petition for Review, objections you have may be waived on appeal.
The Petition for Review can typically be short, and a petitioner will usually be given a chance to expand on his or her arguments in subsequent briefing. Other than it being in writing and preferably being called a "Petition for Review," it does not typically need to be in any particular form or formatting. A Petition for Review should also be filed on or before the applicable deadline. If you need more time, you may request it by filing a Motion for Extension of Time (in any such requests you should specify how much time you are requesting and—why you are requesting it).
If the petitioning party is filing through the Board's electronic service and filing—EFS system—the petition for review will be served on EFS registered users and Department of Labor agencies that are required to be served by program regulations. If you file in any other manner, or if the opposing party is not a registered user in EFS, you are responsible for serving your Petition on all necessary persons.
Petitions must be written based on the specifics of your case, but an example of a sufficient petition for review may be:
I am objecting to the ALJ's findings that I did not engage in protected activity (ALJ Decision at 5), did not have an objectively reasonable belief that I engaged in protected activity (ALJ Decision at 6), did not suffer an adverse action (ALJ Decision at 12), that there was no causation (ALJ Decision at 17), and that the employer proved by clear and convincing evidence that it would have taken the same action absent my protected activity (ALJ Decision at 25). I am also objecting that the ALJ did not admit my evidence at CX 12 (Hearing Transcript at 544).
Again, because many of the program regulations state that objections a party fails to raise in its Petition for Review may be waived on appeal, parties should endeavor to do so as thoroughly as possible.
This guidance is meant to be helpful and in no way binding on the Board for any action taken or not taken. Also note that this guidance and example is not a substitute for legal advice and parties are encouraged to secure legal counsel for appeals before the Board.
If you file your Petition for Review through the EFS system, DOL agencies will be served through the system and the opposing party will be served through the system if they are a registered user.
Generally, after a Petition for Review is filed and if the ARB accepts the appeal, the Board will issue a Notice of Acceptance and Briefing Order ordering the petitioning party to file an opening brief. The Briefing Order will also typically allow the opposing party to file a response brief and the petitioning party to file a reply brief.
No. If a petition for review was untimely, the opposing party may still file a motion to dismiss for untimeliness even if the Board has issued a Notice of Appeal and Briefing Order.
Typically, opening briefs are due 28 days from the Board's briefing order and may not exceed 30 double-spaced pages, response briefs are due within 28 calendar days from the date of service of a petitioning party's opening brief and may not exceed 30 double-spaced pages, and reply briefs are due within 14 calendar days from the date of service of response briefs and may not exceed 15 double-spaced pages. Briefs should be filed on or before the applicable deadline. If you need more time, you may request it by filing a Motion for Extension of Time (in any such motion you should specify how much time you are requesting and why you are requesting it). Specific briefing requirements will be set forth in the Board's briefing order in your case. If you need more pages than the Board's briefing order allows, you may file a Motion for Extension of the Page Limitation (in any such motion you should specify how many additional pages you are requesting and why).
f the opposing party does not file a response brief with the Board, typically the Board will consider the appeal in the absence of the opposing party's briefing. However, it does not indicate that the appealing party will prevail because of the absence of a response brief.
The Board may issue an order to show cause when a party fails to comply with a deadline, when there is a question about the Board's jurisdiction to hear the case, or in other appropriate circumstances. You should file a written response to an order to show cause, responding as closely as possible to what the Board has directed you to address in your response. For example, if the Board is ordering you to show cause why you did not respond to a Board order, provide the reasons you did not respond. It is important to respond to an order to show cause on or before the order's stated deadline for responding. If you do not respond to an order to show cause, the Board may dismiss your appeal, not consider your brief, or impose other sanctions.
All motions and other requests for action by the Board including, but not limited to, requests for extensions of time or to exceed page limitations, shall be in the form of a motion. Motions may not exceed 20 double-spaced pages.
Before filing any motion or other request for non-dispositive action or relief with the Board, including any request for an extension of time, the moving party must make a good faith effort to confer with all other parties to ascertain whether they consent to the action or relief sought. The moving party must state in its motion whether the other parties' consent to the action or relief sought or, if no conference occurred, the efforts the moving party made to confer with the other parties. *My motion for non-dispositive action or relief that fails to include this information may be summarily denied.
Any party may file a response to a motion. Responses to motions may be filed within 10 calendar days after service of the motion unless the Board shortens or extends the time. However, nothing in this order limits the Board from granting or denying a motion before the expiration of this time period. Responses may not exceed 20 double-spaced pages.
Any movant may file a reply to a response. A reply must not present matters that do not relate to the response. Any reply to a response must be filed within 7 calendar days after service of the response. Responses may not exceed 10 double-spaced pages.
*To consider the appeal, the Board will obtain the entire record.
Yes. All pleadings, briefs, and motions must comply with the following requirements: (1) 12-point, 10 character-per-inch type, or larger font, (2) double-spaced, (3), minimum of one-inch margins, and (4) printable on 8.5- by 11-inch paper.
Typically, the Board's briefing order in a case states the page limitations for briefs and motions. Page limitations do not include cover pages, tables of contents, tables of citations, signature blocks, or certificates of service. A motion to exceed an identified page limitation must specify why additional pages are required. Such motions will not be granted except in extraordinary circumstances.
If a brief or motion that exceeds the stated page limitations is filed without approval, the Board may, with or without notice: (1) refuse to accept the filing; (2) strike the filing with leave to refile a compliant filing within a specified time; (3) disregard the pages of the filing that exceed the page limitation; or (4) issue any other appropriate order, including the issuance of sanctions.
The Board follows its Rules of Practice and Procedure on this matter. The rule is found at 29 C.F.R. § 26.2 (b)(1). It specifies that unless otherwise specified by law, to count a time period or deadline that is stated in a number of days (days or calendar days), you exclude the day of the event that triggers the period (do not count the date of the ALJ decision or Board order, etc.), count every day including Saturdays, Sundays, and legal holidays, and include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the next day that is not a Saturday, Sunday or legal holiday.
However, if an order or other specified deadline is due in a certain number of business days, you exclude the day of the event that triggers the period (do not count the day of the ALJ decision, for example), and then only count the appropriate number of business days, which is then the due date. This means that in addition to excluding the date that triggers the filing period, you also exclude Saturdays, Sundays, and legal holidays to determine the due date.
Typically, yes. However, several of the Board's program regulations provide that the Board must approve settlements before an appeal may be dismissed. In such cases, requests to approve a settlement and dismiss the appeal must be made by motion to the Board. Parties must submit a fully executed and dated copy of the settlement agreement to the Board with its motion. Any motion that fails to comply with these requirements may be summarily denied.
Typically, yes. Several of the Board's program regulations require the Board to approve of withdrawals of appeals. Requests to withdraw an appeal must be made by motion to the Board. If you are requesting to withdraw an appeal under a program regulation requiring the Board to approve of settlement agreements, you must certify that the withdrawal is not based on a settlement. Any motion that fails to comply with these requirements may be summarily denied.
Parties are not required to file an appendix, and to the extent an appendix does not comply with the requirements below, it is prohibited. Instead of filing an appendix, the Board encourages parties to cite directly to materials from the record in their briefing because the Board will review the record.*
On the rare occasion when an appendix is filed, the filing party must file a clear table of contents for any exhibits the party wants to rely upon of well-labeled excerpts from the record that are directly cited in the brief, motion, or other accompanying filing. The Board specifies that these excerpts should be pages directly cited in the filing, rather than entire long documents and the filing should directly state where the materials are located in the record. Parties may not file the entire record or large portions of the record (such as transcripts or ALJ orders) with the Board.
Finally, any appendix should be filed either 1) as an attachment in the same pdf document as the accompanying filing, or in one pdf document separate from the accompanying filing with all of the exhibits together in one document, 2) may not include evidence that is not in the record, and 3) may not exceed 50 pages. Any appendices should be submitted at the same time a party files its accompanying filing.
Any appendix filed that does not meet the above requirements may be summarily rejected by the Board.
*To consider the appeal, the Board will obtain the entire record.
The Board generally does not consider materials presented for the first time on appeal. Therefore, parties may not file, or include in an appendix, any evidence not already contained in the record, without prior written permission granted by Board order.
Parties seeking to file new evidence must file a motion with the Board with supporting argument. When considering whether to allow new evidence on appeal, the Board relies on the standard contained in the Office of Administrative Law Judges Rules at 29 C.F.R. § 18.90(b)(1): "[n]o additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed." The Board grants such requests only in limited circumstances. To satisfy this standard, the moving party typically must show that (1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result.
The Board retains the authority to reject any appendix or exhibit filings that do not meet these requirements.
Some statutes allow complainants to file de novo causes of action in federal district court after a prescribed amount of time if the Department has not issued a final decision in a case. If your appeal arises under one of these statutes, you should first file your federal court complaint and then file a copy of that filing with the Board, as required by the statute. After the Board receives the copy of the federal court filing and if all statutory requirements are met, the Board will dismiss your ARB appeal.
Under the Administrative Procedure Act, 5 U.S.C. § 504, the Equal Access to Justice Act, 28 U.S.C. § 2412, and 29 C.F.R. Part 16, eligible individuals and entities who are parties to certain administrative proceedings against the agency before the Department of Labor may be awarded attorney fees and other expenses.
When EAJA applies, a party is eligible for an award of attorney's fees if: (1) the party is a prevailing party; (2) the agency's position was not substantially justified; (3) an award of fees would not be unjust; and (4) EAJA's timeliness requirements are met. Under 28 U.S.C. § 2412 (d)(1)(B), "[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified."
A "small entity" has "the same meaning as the terms 'small business,' 'small organization' and 'small governmental jurisdiction' defined in paragraphs (3), (4) and (5) of this section." 5 U.S.C. § 601(6).
No. Self-represented (pro se) litigants may choose to file an appeal, pleading, or other document with the Board in paper form (no electronic disks or flash drives will be accepted) by regular mail or personal or commercial delivery at U.S. Department of Labor, Administrative Review Board, ATTN: Office of the Clerk of the Appellate Boards (OCAB), 200 Constitution Ave. NW, Washington, DC 20210, or by electronically filing with the Board's eFile/eServe (EFS) system at https://efile.dol.gov.
Pro se parties are strongly encouraged to use the EFS system.
Parties represented by counsel must use the Board's EFS system, absent good cause shown.
Information regarding registration for access to the system, as well as a step-by-step user guide and FAQs, can be found at https://efile.dol.gov.
The Board's EFS system contains an up-to-date record of all filings and issuances in your case: https://efile.dol.gov. While the Board cannot provide you with a date certain on which it will issue its decision in your case, please be assured that the Board will give your case full and fair consideration. Furthermore, the Board will issue its decision in your cases as soon as possible consistent with its resources.
The use of artificial intelligence (AI) is increasing every day. While it can be a helpful tool, parties are reminded to confirm the accuracy of all case citations and quotes before submitting them. In making submissions generated by AI, parties must note that the party has confirmed that the materials and cases generated are not fictitious.
The submission of fabricated materials—by a human author or AI—will result in sanctions by the Board, up to and including dismissal of the appeal.
Model Note of AI Use
I, (Insert Name), verify that I have been assisted by AI in preparing this submission and confirm that the materials and cases generated therefrom and used herein are not fictitious or fabricated.
/s/
Signed
If you believe you have an issue that needs to be addressed by the Department of Labor, but not the Administrative Review Board, you may call the Department at 1-866-487-2365. This number is the National Contact Center Information and Referral Service for the U.S. Department of Labor, which can assist with reaching the correct agency within the Department.