Know the Rules

Revision to 29 C.F.R. § 18.95

On May 20, 2020, the Department published a Final Rule which establishes a process for discretionary review by the Secretary of Labor of cases decided by the Board of Alien Labor Certification Appeals (BALCA).  See 85 Fed. Reg. 30608 (2020).  This Final Rule includes a revision to 29 C.F.R. § 18.85.

What rules apply to my case?

The 29 C.F.R. Part 18 rules are the baseline rules of practice and procedure in formal hearing proceedings before the Office of Administrative Law Judges. Litigants, however, should also consult the procedural rules governing the matter in litigation for more specific rules. Where a programmatic rule is inconsistent with Part 18, the programmatic rule governs. See 29 C.F.R. § 18.10(a). The Federal Rules of Civil Procedure apply in any situation not provided for or controlled by the Part 18 rules, or a governing statute, regulation, or executive order.

Related laws and rules

Appellate Boards

Administrative Review Board

Benefits Review Board

Regulatory History of 29 C.F.R. Part 18

Federal Register

Administrative Notices

  • Administrative Notice, Effective Date of Final Rule and Clarification on Technical Errors (Acting Chief ALJ June 11, 2015) (revised rules apply in all pending or newly commenced proceedings insofar as just and practicable; notice that Final Rule had four cross-reference errors that will be corrected in a subsequent Federal Register)
  • Administrative Notice, Implementation of New Subpoena Forms (Acting Chief ALJ May 29, 2015) (parties may continue to use old subpoena forms for subpoenas served on or before Friday, July 17, 2015, but must otherwise comply with notice and service requirements of new Section 18.56 for subpoenas served on or after June 18, 2015)

Prior rules - 2014 version

Summary

The OALJ Rules of Practice and Procedure were first published as a final rule in 1983. 48 Fed. Reg. 32538 (July 15, 1983). Although there is a short preamble explaining that the purpose of the rules is to ensure that proceedings before Department ALJs are as uniform as possible, the rules were not subject to notice and comment pursuant to 5 U.S.C. § 553(d), and a detailed regulatory history for the original rules does not exist. It is fair to state, however, that the rules are modeled on the Federal Rules of Civil Procedure, but adjusted for hearings in the administrative context.

A number of minor technical amendments were made to the Rules in 1984. 49 Fed. Reg. 2739 (Jan. 20, 1984).

In 1989, a set of proposed Rules of Evidence were published for notice and comment, 54 Fed. Reg. 2310 (Jan. 19, 1989), with a Final Rule published in 1990. 55 Fed. Reg. 2 (Apr. 9, 1990). These rules are modeled on the Federal Rules of Evidence, but modified for formal adversarial adjudicatory proceedings. The rules are intended to provide necessary guidance as to the admissibility of evidence in such proceedings, and include extensive Reporter's Notes. The Rules of Evidence do not apply if they are inconsistent with a statute, regulation, or executive order. 29 C.F.R. § 18.1101(c). Nor do the Rules of Evidence apply to black lung benefits or longshore workers' compensation proceedings. 29 C.F.R. § 18.1101(b).

In 1991, an amendment was made to reflect a change in address of the Office of Administrative Law Judges. 56 Fed. Reg. 54708 (Oct. 22, 1991).

In 1993, an amendment was made to permit the use of settlement judges as a means of alternative dispute resolution. 58 Fed. Reg. 3822 (Jan. 11, 1993) (proposed rule); 58 Fed. Reg. 38498 (July 16, 1993) (final rule). This amendment was modeled on Recommendation 88-5 of the Administrative Conference of the United States, 1 C.F.R. § 305.88-5 and the settlement judge procedure of other federal agencies.

In 1994, an Interim Final Rule was published to amend certain filing and service requirements. 59 Fed. Reg. 41874 (Aug. 15, 1994). Essentially, these amendments (1) provided rules limiting the use of fax machines to file documents to instances when faxes are explicitly permitted by statute or regulation or the presiding ALJ, and (2) eliminated the routine filing of discovery documents. Although not amendments to Part 18, several other Departmental regulations were updated to permit the use of fax or overnight courier as an alternative to use of a telegram when requesting a hearing in certain time sensitive proceedings.

In 1995, the filing and service amendments were adopted as a Final Rule. 60 Fed. Reg. 26970 (May 19, 1995). The Final Rule made only one change to the Interim Final Rule to conform it to practice in the United States District Courts. Specifically, if a party was represented by an attorney or other representative, only the attorney or representative was to be served unless direct service was ordered by the presiding ALJ. See Fed. R. Civ. P. 5(b); 29 C.F.R. § 18.3(b) (as amended by this Final Rule). This service amendment applied only to service by a party; it did not change the ALJ's obligation to serve both parties and their representatives, unless the parties waived personal service.

In 1999, a Final Rule was published amending the settlement judge rule at section 18.9(e) to permit the appointment of settlement judges in cases arising out of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., the Defense Base Act, the Outer Continental Shelf Lands Act, the Nonappropriated Fund Instrumentalities Act, and the former District of Columbia Workmen's Compensation Act. 64 Fed. Reg. 47087 (Aug. 27, 1999).

On December 4, 2012, the Department of Labor published proposed revisions to the Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges. In this proposed rule, the Department of Labor proposed to revise and reorganize the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18. The then current OALJ Rules of Practice and Procedure were promulgated in 1983 and had been modeled on the Federal Rules of Civil Procedure (FRCP). The proposed OALJ Rules of Practice and Procedure were intended to be more accessible and useful to parties; to harmonize administrative hearing procedures with the current FRCP; and to reflect the types of claims then being heard by OALJ.

The Department published a Final Rule on May 19, 2015, revising Subpart A of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 80 Fed. Reg. 28767. These were the first major revisions of Subpart A since 1983. They went into effect on June 18, 2015. Technical corrections were published on July 1, 2015.

On May 20, 2020, the Department published a Final Rule which, in part, establishes a process for discretionary review by the Secretary of Labor of cases decided by the OALJ’s Board of Alien Labor Certification Appeals (BALCA)—which has authority over appeals from the decisions of the Employment and Training Administration's adjudication of foreign labor certification applications.  85 Fed. Reg. 30608 (2020).