DIVISION V -- OSHA/WAGE AND HOUR DIVISION INVESTIGATION
[Last updated June 11, 2012]
- V. OSHA/Wage and Hour Division investigation
- A. Generally
- B. Prima facie showing requirement under the ERA
- C. Administrator's actions or inactions
- 1. Requirement that Wage and Hour complete its investigation
- 2. Failure to make timely investigation
- 3. Failure to give timely notice of filing of complaint
- D. Applicability of OALJ Rules of Practice
On January 18, 1995, the Department published in the Federal Register a Secretary's order, establishing a pilot project to delegate responsibility for handling nuclear and environmental whistleblower complaints to OSHA. The pilot project will last until December 31, 1995, and will be confined to the Dallas Region, Southwest Division (excluding New exico), unless modification is made as provided in the Secretary's order. 60 Fed. Reg. 3655 (1995) .
INVESTIGATORY RESPONSIBILITIES; PERMANENT TRANSFER TO OSHA
[N/E Digest V A]
Effective February 3, 1997, Secretary's Order 6-96 grants the Assistant Secretary for OSHA permanent authority to investigate and resolve allegations of discriminatory actions taken by employers against employees in violation of the nuclear and environmental whistleblower protection provisions
The following is an excerpt from the preamble to Secretary's Order 6-96:
[T]his Order, in conjunction with Secretary's Order 5-96, effects an exchange of particular authorities and responsibilities between the Assistant Secretary for Employment Standards and the Assistant Secretary for Occupational Safety and Health. The exchange was tested in a pilot project for Region VI established by Secretary's Order 6-94 (extended by Secretary's Order 1-96), that granted these Assistant Secretaries limited concurrent authority to enforce certain laws establishing labor standards affecting field sanitation and migrant housing, which had been delegated to the Occupational Safety and Health Administration (OSHA) under Secretary's Order 1-90, and certain environmental and public health-related whistleblower protection laws, which had been delegated to the Employment Standards Administration (ESA) under Secretary's Order 1-93. The pilot project resulted in a determination that the respective agencies would make better use of their program expertise, and, therefore, that the Department of Labor would more effectively and efficiently utilize its resources, by a permanent transfer of specific enforcement activities between the Assistant Secretaries for OSHA and ESA.
Secretary's Order 6-96, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupation Safety and Health , Dec. 27, 1996, 62 Fed. Reg. 111 (Jan. 2, 1997). See also
Secretary's Order 5-96, Delegation of Authorities and Assignment of Responsibilities to the Assistant Secretary for Employment Standards and Other Officials in the Employment Standards Administration , 62 Fed. Reg. 107 (Jan. 2, 1997)
INVESTIGATIONS; EXTENSION OF PILOT PROJECT TO CREATE CONCURRENT OSHA AND ESA AUTHORITY AND RESPONSIBILITY
[N/E Digest V A]
On January 26, 1996, Secretary Reich extended the pilot program of Secretary's Order 6-94 (published at 60 Fed. Reg. 3655 (Jan. 18, 1995)), granting OSHA and ESA concurrent authority to enforce certain whistleblower laws. The extension of the pilot program is to last "until further Order of the Secretary."
Secretary's Order 1-96 (Jan. 26, 1996)(published at 61 Fed. Reg. 4289 (Feb. 5, 1996)).
[Nuclear & Environmental Digest V A]
COLLATERAL ESTOPPEL; OSHA INVESTIGATION
In McLaughlin v. Federal Research, Inc. , 1997-TSC-7 (ALJ Aug. 21, 1998), the ALJ reported a bench ruling during a pre-hearing conference in which he ruled that an OSHA investigation resulting in a finding of no violation, purportedly on the same facts asserted in the instant environmental whistleblower matter, did not rise to meet the legal standards for invocation of the collateral estoppel doctrine.
The 1992 amendments to the ERA include a requirement that the complainant make a prima facie showing before the Department may investigate, with a further requirement that even if the prima facie showing is made, the complaint will not be investigated if the employer can establish by clear and convincing evidence that it would have taken the adverse personnel action in the absence of the complainant's protected activity. See 42 U.S.C. § 5851(b)(3)(A). For an markup showing changes made by the 1992 amendments to the ERA, click here .
[N/E Digest V B]
IF COMPLAINANT FAILS TO ESTABLISH PRIMA FACIE CASE, WAGE & HOUR OR OSHA INVESTIGATION IS TERMINATED IN ERA, POST-1992-AMENDMENTS COMPLAINT
In Majors v. ASEA Brown Boveri, Inc. , 96-ERA-33 (ARB Aug. 1, 1997), Complainant asserted that Respondent reduced his long term disability payment to offset his Social Security disability payments in retaliation for whistleblower activity nine years earlier. Wage and Hour terminated its investigation after determining that Complainant had not established a prima facie showing that his protected activity was a "contributing factor" in any action taken by Respondent.
The ALJ ruled on summary decision that the complaint was untimely; this ruling was adopted by the ARB. The ARB, however, also observed that this case "is a paradigm of the type of case that can properly be rejected without further investigation." The Board noted that the 1992 amendments to the ERA added new requirements for the termination of investigation of complaints by the DOL: a sort of gatekeeper test. The Board found that Complainant's complaint was "patently unreasonable and ... precisely the kind of frivolous claim which the amendment to the ERA was intended to address."
The Board also noted that once a hearing is requested, the investigative findings carry no weight either before the ALJ or the Board.
In Gibson v. Arizona Public Service, 90-ERA-22 (ALJ ar. 16, 1990), the ALJ remanded the matter to Wage and Hour to conduct an investigation. Wage and Hour had originally issued its determination stating simply that Complainant's complaint "contain[s] insufficient information to determine the timeliness and coverage under applicable statutes." The ALJ agreed that the complaint was singularly uninformative, but found that Wage and Hour had no authority to determine a complaint not in conformance without an investigation -- only to assess whether the complaint is with or without merit. 29 C.F.R. § 24.4(d)(1), (d)(2)(i) and (d)(3)(i).
[Editor's note: This case came up later and was inadvertently given docket number 90-ERA-53. Apparently, the ALJ's intention was to keep the case number 90-ERA-22 active. Apparently no party questioned whether the ALJ had the authority to remand a case for investigation by Wage and Hour. This case was later consolidated with 90-ERA-29 and 53.]
[Nuclear and Environmental Whistleblower Digest V C 1]
OSHA INVESTIGATION; REMEDY FOR PURPORTED DEFICIENCIES IN INVESTIGATION IS DE NOVO HEARING BEFORE ALJ, NOT A REMAND FOR A NEW INVESTIGATION
In Slavin v. UCSB Donald Bren School , 2005-CAA-11 (ALJ June 8, 2005), the ALJ denied the Complainant's motion for a remand for a new administrative investigation holding that "[e]ven assuming that an investigation was not conducted properly, the due process protection for either side is a fair and impartial de novo hearing before an ALJ. Consequently, as long as the agency addressed and made a determination on the merits of the complaint, as it did in this case, remand is not an appropriate remedy."
[Nuclear and Environmental Whistleblower Digest V C 1]
REMAND TO OSHA; FURTHER INVESTIGATION
In Lunsford v. University of Missouri-Rolla , 2000-TSC-1 (ALJ Apr. 7, 2000), the ALJ remanded the matter to OSHA for further investigation and determination where the representations of counsel for both Complainant and Respondent indicated to the ALJ that a timely complaint may have been filed, that timely receipt of properly filed documents was not recorded, and that the appropriate parties were not properly notified or served.
[N/E Digest V C 1]
WAGE AND HOUR INVESTIGATION; REMAND
In Jones v. Pacific Gas & Electric Co. , 97-ERA-3 (ALJ Mar. 19, 1997)(order denying motion for reconsideration), the Wage and Hour division found that Complainant was not an employee, and never reached the merits. Respondent conceded before the ALJ that Complainant was, in fact, an employee, and moved for a remand for Wage and Hour to complete its investigation. The ALJ denied the motion finding that Complainant would be prejudiced because Congress had intended that ERA complaints be expeditiously resolved, and because the proceeding before the ALJ is de novo . The ALJ rejected Respondent's contention that there is a distinction between merely flawed investigations, in which case a remand is not necessary, see Billings v. Tennessee Valley Authority , 91-ERA-12 (ARB June 26, 1996), and an incomplete investigation.
REMAND; ALLEGATION OF INADEQUATE WAGE AND HOUR INVESTIGATION
[N/E Digest V C]
In Billings v. Tennessee Valley Authority , 91-ERA-12 (ARB June 26, 1996), Complainant sought remand of the matter to the Wage and Hour Division for further investigation. The Board affirmed the ALJ's ruling denying remand because Complainant did not establish a legitimate reason for remand, but only attacked the merits of Wage-Hour's findings of nondiscrimination. The Board added that Wage-Hour's findings were not binding because the regulations accord complainants a right to de novo hearings on the merits of complaints. The Board wrote: "Accordingly, any arguable flaws in Wage-Hour's investigation or findings would not adversely affect litigation of his case before the ALJ." Slip op. at 8-9 (citations and footnote omitted).
V C After hearing is requested, Wage and Hour determination has no force or effect
After a hearing is requested on an ERA whistleblower complaint, the case is received de novo. The Wage and Hour determination is of no force or effect, and is not legally prejudicial.
Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995) (rejecting the Respondent's contention that it was prejudiced by irregularities in the Wage and Hour investigation).
V C Wage and Hour finding of violation despite settlement in which Respondent did not admit violation; once Respondent requests hearing, Wage and Hour finding has no legal effect
In McClure v. Interstate Facilities, Inc., 92-WPC-2 (Sec'y June 19, 1995), the parties settled the case while it was pending before the Wage and Hour Division, the Respondent refusing to admit a violation, but agreeing to reinstatement of the Complainant. The District Director issued a Notice of Determination finding a violation of the FWPCA, attaching a copy of the settlement, and directing reinstatement as provided in the agreement. The Respondent objected to issuance of the Notice of Determination and requested a hearing. Before the ALJ, the parties and the Acting Administrator agreed that the settlement should be accepted, but the Acting Administrator disagreed with the Respondent whether the Notice of Determination should be withdrawn. The ALJ vacated the Notice.
The Secretary concluded that it was unnecessary to vacate the Notice of Determination because upon the request for a hearing, the District Director's determination was rendered of no force or effect by operation of law, and is not legally prejudicial to the Respondent. See 29 C.F.R. § 24.4(d)(3)(i).
The Secretary declined to accept the Respondent's assertion that the Complainant's consent to the settlement agreement ended all allegations of discrimination. The Secretary wrote:
This is not an ordinary lawsuit where a plaintiff's consent to settle a complaint ends the inquiry. The Department of Labor does not simply provide a forum for private parties to litigate their private employment discrimination suits such that the parties are free to resolve the case as they choose. Protected whistleblowing may expose not just private harms but health and safety hazards to the public, and the Secretary of Labor has been entrusted by Congress to represent the public interest in keeping channels of information open. . . . Consistent with that trust and to assure that whistleblowers are adequately protected, the Secretary has permitted parties to resolve complaints under the FWPCA by settlement where the Secretary finds that the settlement is fair, adequate, and reasonable under the circumstances. . . .
Slip op. at 3-4 (citations omitted).
V C 1 Remand where Wage & Hour refused to investigate
In Floyd v. Arizona Public Service Co., 90-ERA-23 (ALJ Mar. 19, 1990), the administrative law judge remanded the matter to the Assistant District Director for further investigation where the complaint had originally been dismissed on the ground that it "contain[ed] insufficient information to determine the timeliness and coverage under applicable statutes." The motion to remand was based on the decision in Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986), in which the Secretary issued a remand after ruling that a "Complainant is not required to set forth proof in his complaint" and that a complaint cannot be dismissed "on the ground that it fails to state a cause of action." Although acknowledging that Niagara Mohawk was not on all fours with the instant matter, the ALJ concluded that the regulations did not contemplate rejecting a complaint solely on the basis of nonconformity. See 29 C.F.R. § 24.4(d)(1) ("the Administrator shall complete the investigation..." (emphasis added)).
[Editor's note: The decision did not discuss the ALJ's authority to issue an order of remand rather than simply a recommended order of remand]
V C 1 Remand to Wage & Hour
In Kamin v. Hunter Corp., 89-ERA-11 (Sec'y Mar. 12, 1990), the Secretary permitted the complainants to rescind their motion for withdrawal of their joint complaint. In Kamin , the Wage and Hour Division had not conducted an investigation because it had concluded that the complainants were not covered by the ERA inasmuch as they had never been employed by the respondent. Noting that the complainants were proceeding pro se, the Secretary remanded the matter "in the interest of justice" to the Wage and Hour Administrator for an investigation.
[The ALJ had recommended an order finding that the complainants were not entitled to relief under the ERA because the complainants had never responded to the respondent's motion for summary judgment on the ground that the complainants were not, and never had been, employees of the respondent. Kamin v. Hunter Corp., 89-ERA-11 (ALJ Jan. 24, 1989).]
[Nuclear and Environmental Whistleblower Digest V C 2]
CONSTRUCTIVE DENIAL BY OSHA BASED ON DELAY; OALJ DECLINES TO GRANT MOTION TO DOCKET CASE WHERE RESPONDENT REPRESENTS THAT OSHA INFORMED IT THAT A DETERMINATON WAS EXPECTED SHORTLY
In Love v. United States Environmental Protection Agency , 2008-CAA-5 (ALJ Aug. 27, 2008), the Complainant filed a document with the Office of Administrative Law Judges stating that she was initiating an appeal because OSHA had constructively denied her complaint because over six months had passed since she had filed her whistleblower complaint under the CAA, SWDA, SDWA and CERCLA. The Complainant argued that the delay had resulted in a loss of access to witnesses, emotional upset and increased litigation expense. Although finding several of the Complainant's arguments to be well taken, the Chief ALJ noted that the statutory and regulatory scheme clearly contemplated an investigation prior to a hearing, that docketing a case at OALJ based on a constructive denial had only been invoked once in the history of the whistleblower program, and that counsel for the Respondent represented that OSHA had informed her that its determination was expected shortly. Consequently, the Chief ALJ denied the motion for the initiation of an ALJ hearing process prior to OSHA's issuance of written findings under 29 C.F.R. 24.105 without prejudice to renew the motion if further efforts to resolve or expedite the matter provided unsuccessful.
V C 2 Failure to issue a determination for five months is a constructive denial
In Plumley v. Federal Bureau of Prisons, 86-CAA-6 (ALJ Dec. 31, 1986) (order denying motion to dismiss), Complainant filed a complaint with the Wage and Hour Division. Wage and Hour obtained a 30-day extension to issue a determination. Five months later, no determination had been issued, and Complainant appealed to the Office of Administrative Law Judges. The ALJ held that Wage and Hour constructively denied the complaint as it refused to respond for over five months.
Subsequently, Respondent filed a motion to dismiss on the ground that Complainant was not an employee, maintaining therein that Complainant had failed to exhaust his administrative remedies, and that the motion to dismiss was properly before the Administrator. The ALJ rejected this contention based on his previous ruling that Wage and Hour's inaction constituted a denial of the complaint, and therefore Complainant did exhaust his administrative remedies.
REQUEST FOR HEARING PRIOR TO ISSUANCE OF SECRETARY'S FINDINGS BY OSHA BASED ON CONSTRUCTIVE DENIAL THEORY; COMPLAINANT CARRIES BURDEN OF ESTABLISHING OALJ AUTHORITY TO PROVIDE SUCH EQUITABLE RELIEF AND THAT GROUNDS EXIST FOR GRANTING SUCH RELIEF
In Graves v. MV Transporation, Inc. , 2012-NTS-1 (ALJ June 8, 2012), a case arising under the National Transit Systems Security Act, the Complainant requested a hearing alleging that OSHA had failed to complete its investigation in a timely manner. The Chief ALJ isseud an order directing the parties to brief whether OALJ had the authority to take jurisdiction over the matter under a theory of constructive denial, and whether grounds existed for granting such relief in the instant case. The Assistant Secretary for OSHA was the only party to submit a brief on the matter. Noting that the Complainant's hearing request prior to issuance of the Secretary's Findings by OSHA was a request for extraordinary equitable relief, and that the only argument from the Complainant was the allegation that OSHA failed to complete its investigation in a timely fashion, the Chief ALJ found that the Complainant had failed to carry his burden to establish both OALJ's authority to assume jurisdiction and that grounds existed for exercise of such authority in the instant case. Thus, the hearing request was dismissed without prejudice. In view of this disposition of the hearing request, the Chief ALJ did not address the Assistant Secretary's argument that a claim of constructive denial of due process for an alleged failure of OSHA to timely complete its investigation should never succeed where a statute allows a complainant to file in district court if the Secretary delays issuance of a final order. See 6 U.S.C. § 1142(c)(7); 29 C.F.R. § 1982.1114.
[Nuclear & Environmental Whistleblower Digest V C 2]
In Saporito v. USDOL , ARB No. 03 063, ALJ No. 2003 CAA 9 (ARB Mar. 31, 2004), the Complainant alleged that OSHA violated several environmental whistleblower statutes because it did not complete a mandated investigation within 30 days and did not properly investigate that complaint. The ARB found that the Complainant, having failed to establish that OSHA was his employer, did not establish that OSHA was a covered employer. Thus, the complaint was dismissed.
[Nuclear & Environmental Digest V C 2]
TIMELINESS OF OSHA INVESTIGATIONS
On March 16, 2001, the U.S. Department of Labor Office of Inspector General issued a report, "Evaluation of OSHA's ERA and EPA Whistleblower Investigations," Report No. 2E-10-105-0001 (Mar. 16, 2001) [PDF document], which focused on the 30-day statutory time frame for conducting investigations. OIG found that OSHA was not meeting the 30-day time frame, and made a series of recommendations on how OSHA could reduce the amount of time it takes to conduct investigations. OSHA agreed with the OIG findings and recommendations, and implemented or presented plans for implementing the OIG recommendations.
The failure of the Administrator of the Wage and Hour Division to (1) give the Respondent timely notice of the filing of the complaint in a TSCA employee protection matter, and (2) make a timely investigation, does not deprive the Secretary of jurisdiction over the complaint. Sawyers v. Baldwin Union Free School District, 88-TSC-1 (Sec'y Oct. 5, 1988) (citing Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (Sec'y Apr. 27, 1987) (as amended by Amendments to Decision and Order of Remand (Sec'y May 6, 1987)).
In Staskelunas v. Northeast Utilities Co. , 1998-ERA-8 @ n.5 (ARB May 4, 1998), the ARB declined to adopt the ALJ's use of 29 C.F.R. Part 18 to calculate constructive receipt of the OSHA determination letter by Complainant. The ARB indicated that OALJ's rules of practice should not be applied to events taking place prior to OALJ's gaining jurisdiction over the matter.
V D Applicability of Part 18 to proceedings before Wage and Hour Division
In Douglas v. Tennessee Valley Authority , xx-xxx-xx (ALJ Feb. 3, 1994), the Chief ALJ granted Respondent's motion to quash a subpoena that had been issued bearing the seal of the Office of Administrative Law Judges. The complaint was still under investigation by the Wage and Hour Division, and the Chief ALJ concluded that regulation under which subpoenas are issued by OALJ may be applied in proceedings before OALJ. 29 C.F.R. §§ 18.1 and 18.24. only
[ Editor's Note: The Secretary has indicated that the Department of Labor does not have subpoena power in ERA proceedings. See Malpass v. General Electric Co., 85-ERA-38 and 39 (Sec'y Mar. 1, 1994).]