MAIN HEADINGS

I. OVERVIEW
II. FILING REQUIREMENTS, GENERALLY
III. TIME LIMITS ON FILING
IV. EQUITABLE TOLLING OF FILING PERIOD
V. OSHA/WAGE AND HOUR DIVISION INVESTIGATION
VI. REQUEST FOR HEARING
VII. PROCEEDINGS BEFORE OALJ
VIII. POWERS,RESPONSIBILITIES AND JURISDICTION OF ALJ, SECRETARY AND FEDERAL COURTS
IX. MISCELLANEOUS PROCEDURAL ISSUES
X. WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY
XI. BURDEN OF PROOF AND PRODUCTION
XII. PROTECTED ACTIVITY
XIII. ADVERSE ACTION
XIV. EMPLOYER/EMPLOYEE
XV. MISCELLANEOUS DEFINITIONS
XVI. DAMAGES AND REMEDIES
XVII. SETTLEMENTS
XVIII. DISMISSALS
XIX. DENIAL OF RELIEF WHEN COMPLAINANT ENGAGES IN DELIBERATE SAFETY VIOLATION
XX. RELATIONSHIP BETWEEN 29 C.F.R. PART 24 AND OTHER LAWS
XXI. RES JUDICATA/COLLATERAL ESTOPPEL
XXII. POSTING

A. Statutory/regulatory scheme

1. Generally

2. Roles of DOL and NRC in protecting employees

B. Purposes

1. Generally

2. To protect against discriminatory treatment

a. Provision modeled on Mine Safety & Health Act

b. Protection of employees stronger purpose than promoting safety

3. To ensure the flow of information

a. Regulatory scheme based, in part, on employee participation in enforcement

A. Generally

B. Pleading requirements

1. Form of complaint

a. "Complaint" is not a formal legal pleading

b. Development or amendment of complaint

2. Requirement that violation underlying the complaint confers subject matter jurisdiction

3. Requirement of written complaint

a. Generally; verbal complaint inadequate

b. Writing in hand of person other than the complainant

C. Requirements relating to person and place

1. Who may file

2. Place of filing

A. Generally

1. Due process

2. Affirmative defense -- must be raised in pleadings

3. Authority of ALJ to entertain motion for summary decision

4. Effect of Wage & Hour Division's determination of timeliness

5. New evidence of discrimination

B. Computation of timeliness

1. Applicability of 29 C.F.R. § 18.4

2. Initiation of filing period

a. Date of notification rather than effect

b. Standard: Final, definitive and unequivocal notice

3. Evidentiary matters

C. Timely filing of discriminatory acts of continuing nature

1. Generally; nature of continuous acts

2. Blacklisting

3. Complaint not actionable; continuing discrimination theory does not preserve earlier claims

4. Hostile work environment

A. Generally

B. Circumstances justifying equitable tolling

1. Misleading of employee

2. Prevention of assertion of rights

3. Wrong forum

C. Other attempted applications

1. Ends of justice

2. Failure of employer to post notice of rights

3. Lack of knowledge about remedy

4. Misinformation provided by or delay of government official

5. Negligence of attorney or representative

6. Pending local remedy/settlement negotiation

7. Pending unemployment application

8. Reopening of prior complaint

9. Miscellaneous

D. Computation of length of equitable tolling

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

A. Requirement that DOL provide adequate notice of right to request a hearing

B. Complainant's failure to send a copy of the request for a hearing to the respondent

C. Necessity for an "answer" to the request for a hearing

D. Form of request

E. Timeliness

A. Discovery

1. Generally

2. Limitations on discovery

3. Sanctions for failure to attend deposition or to comply with discovery orders

4. Informer's privilege; other privileges

5. Protective order

6. Miscellaneous issues

B. Subpoenas

1. DOL authority to issue

2. Subpoenas directed at DOL

3. Subpoenas not self-executing

4. Scope of subpoena

5. Quashing of subpoena

C. Summary decisions

1. Generally

2. Pro se complainants

3. Failure to state a claim upon which relief may be granted

D. Conduct of hearing

1. Scheduling of hearing

2. Admission of evidence

3. Dismissal of a claim

4. Motion to disqualify ALJ

5. Continuance

6. Other matters

E. Miscellaneous

A. Administrative Law Judge

1. De novo review

2. Decision and order

a. Recommended or final

b. Citations to the record

c. Other matters

3. Responsibility to be familiar with and to follow Secretarial precedent

4. Miscellaneous limitations on jurisdiction

5. Recusal/disqualification

6. Effect of ALJ's actions or inactions

7. Treatment of case on remand

8. Other matters

B. Secretary of Labor/ARB

1. Jurisdiction of Secretary/ARB

a. Automatic review of ALJ's recommendation

b. Time limitations

c. Final decisions and orders

d. Other matters

2. Scope of review by the Secretary/ARB

a. Deference to ALJ's findings

b. New or additional evidence

c. Issues not raised below

d. Summary decision; de novo review

e. Procedural errors of ALJ; abuse of discretion standard

3. Interlocutory appeals

4. Effect of Secretary's actions or inactions

5. Allegation of misconduct

6. Oral argument

C. Federal courts

1. District courts

2. Courts of Appeals

a. Standard of review

b. Deference to agency's findings, interpretations

c. Appealable final order

A. Record for review

B. Filing of motions and briefs

1. Generally

2. Filing before the ARB (formerly OAA)

3. Amicus briefs

4. Pleadings filed by pro se complainant

C. Consolidation of cases; joinder of parties

D. Motion to reopen or to reconsider

1. General standard (Rule 60(b) and 29 C.F.R. § 18.54(c))

2. Newly discovered evidence

3. ALJ's, Secretary's and ARB's authority to reconsider

E. Remand

F. Ex parte communications

G. Service

H. Imposition of sanctions

1. Applicability of Federal Rules of Civil Procedure

2. Applicability of 29 C.F.R. Part 18

3. Applicability of Administrative Procedure Act

4. Other matters

[See also VII. A. 3. as to sanctions for failure to attend deposition.

See also XVI. E. 5. as to the respondent's request for fees and costs.

See also XVIII. B. 4. as to the imposition of conditions on a dismissal.]

I. Time; waiver and other issues

K. Stay of proceedings; motion to expedite

L. Motion in limine

M. Other procedural matters

1. Relationship of CERCLA to Part 24

2. Attorney misconduct/Disqualification of counsel

3. Relationship between Part 24 and other rules practice and rules of evidence

N. Expert Witness

A. Statutory and regulatory interpretation

1. Use of legislative history

2. Value of analogous case types as precedent

a. ADEA

b. Title VII

c. National Labor Relations Act

d. Coal Mine Health & Safety Act

3. Absence of express provision not evidence of preclusion

4. Views of NRC and DOE

5. Relationship between cases interpreting various nuclear and environmental employee protection provisions

6. Construction to achieve purposes of Act

7. Label of regulation as aid to interpretation

B. Complainant's evidence need not precisely fit analytical model

C. Circumstantial evidence

D. Direct evidence of discrimination

E. Credibility determinations

1. Requirement of sufficient clarity

2. Demeanor of witnesses

3. Consistency of testimony

4. Weight afforded depositions at which opposing party not afforded opportunity to cross-examine

F. Probative weight of documents produced during Wage and Hour investigation

G. Technical matters

1. Memorandum of agreement with NRC

H. Stipulations

I. Sealing of record

J. Attorney as witness; disqualification

K. Recognition of DOL expertise in whistleblower litigation

L. Hearsay

M. Relevancy of efficacy of NRC regulations/investigative report

N. Relevancy of NRC notice of violation

O. Precedential value of ALJ or Secretary's decision

P. Miscellaneous

A. Elements

1. Generally

2. Establishing causation element

a. Generally

b. Circumstantial evidence

i. Generally

ii. Proximate timing of adverse action

iii. Other circumstances

c. Respondent's awareness of protected activity

d. Direct evidence of discrimination

3. Existence of adverse action

B. Nondiscriminatory reason for adverse action

1. Generally

2. Particular reasons

a. Nondiscriminatory layoffs

b. Behavior of complainant

i. Protest activities

ii. Poor work performance

iii. Leaving work area

iv. Abusive or threatening behavior

v. Misuse of company property

vi. Disruption of the work place

vii. Obtaining job with fraudulent credentials

viii. Insubordination/unauthorized actions

ix. Bypassing the chain of command

c. Other reasons

3. St. Mary's Honor Center; bursting bubble upon articulation; prima facie case analysis looses relevance

C. Pretext

1. Generally

2. Illustrative cases

a. Pretext established

b. Pretext not established

D. Dual motive

1. Generally

a. Respondent at risk that reasons cannot be separated

b. "But for" test

2. When implicated

3. Illustrative cases

a. Substantially disproportionate actions

b. Termination procedures inadequate

c. Complainant's misappropriation of company records

d. Other cases

E. Evidentiary matters

1. Evidence need not be fine tuned to analytical model

2. Precedential weight of Title VII and NLRA cases

3. Circumstantial evidence

4. Credibility determinations

5. Use of statistical evidence to infer discrimination

6. Preponderance of evidence standard

7. Protection not dependent on proving an actual violation

8. Protection not dependent on violation comprising predominant subject of complaint

9. ALJ's consideration of reasons for discharge not raised by the respondent

10. Evidence of past discrimination

11. Different treatment not element of complaint

12. Evidence of events occurring subsequent to adverse action/offer of settlement

13. Prima facie case; finding of fact not necessary

14. Respondent's state of mind

F. After acquired evidence

A. Generally

B. Entity to which complaint is directed

1. Complaints within the employer's organization (internal complaints)

a. Generally

b. Circuit courts recognizing internal complaints as protected activity

c. Fifth Circuit's position

d. Secretary of Labor's recognition of internal complaints as protected activity

i. In general

ii. The Secretary's acquiescence in the Fifth Circuit (pre-1992 amendments)

iii. Applicability to employees other than quality control inspectors

e. Complaint directed to subcontractor

2. Complaints to other entities

a. Complaints to local authorities

b. Complaint to federal agency

c. Contact with a public interest group or a private individual

d. Contact with the media

e. Complaint to general public

f. Complaint to co-worker

g. Coverage generally

h. Complaint to Congress

i. Seeking a legal opinion

C. Mode of complaint

1. Formal complaint is not required

2. Existence of a "proceeding" is not required

3. Complainant's intent or purpose is not determinative

4. Reasonable perception of violation

5. Disclosure need not be unique, unknown or substantial

6. Complainant's intemperate or implusive behavior [see also XI.B.2.b.iv. and viii.]

7. About to contact authorities

D. Specific activity as "protected activity"

1. Reporting unsafe condition or regulatory violation

a. Generally

b. Generic complaint of health problems

c. Preliminary steps or threats to report an unsafe condition

d. Bypassing the chain of command

2. Participation in NRC proceeding or investigation

3. Questioning of safety procedures

4. Questioning of validity of licenses or permits

5. Quality control and quality assurance functions/investigatory duties

6. Reporting mismanagement

7. Complaints about scheduling or duties

8. Employee suggestions

9. Complaint of employer retaliation

10. Refusal to work

11. Attorney's memorandum

12. Efforts to discover or obtain evidence of violations

a. Generally

b. Employee activity outside the course of official duties

13. Other activities

A. Generally

B. Specific actions

1. Blacklisting

2. Contesting of workers' compensation

3. Delayed implementation of EEOC order

4. Demotion; reduction in salary; smaller salary increase

5. Denial of parking privileges/company car

6. Discharge

7. Failure to comply with term of settlement agreement

8. Failure to hire

9. Failure to provide safety information and services

10. Libel suit

11. Referral to employee assistance program/medical or psychological evaluation

12. Refusal to hire on permanent basis

13. Reneging on offer to withdraw termination

14. Retaliatory harassment

15. Ridicule

16. Transfer to less desirable employment

17. Unsatisfactory job evaluation

18. Other actions

C. Continuing course of harassment/hostile work environment

D. Respondent immediately rescinds action

A. Employee

1. Generally

2. Specific employees

a. Attorney

b. Former employee

c. Government employee

d. Independent contractor

e. Prison inmate

f. Prospective employee

g. Member of board of directors

B. Employer

1. Generally

2. Requirement of employer-employee relationship

3. Employer other than the Respondent

4. Specific employers

a. Defense facility

b. Department of Energy facilities

c. City or state agency

d. Employment agency

e. Federal government

f. Labor union

g. Leasing agent

h. "Small quantity generator" (SWDA)

i. Subcontractor

j. Other

C. Authorized representative of employees

A. Appendix R

B. Ambient air

C. Chemical compounds

D. Condition Adverse to Quality Report (CAQR)

E. Government Accountability Project

F. Milliroentgen

G. Nonconformance report

H. Outage

I. Pollutants (FWPCA)

J. Resource Conservation Recovery Act

K. Other

A. Generally

1. Statutory and regulatory provisions

2. Limitation on Secretary's authority to order relief

3. Enforcement

4. Scope of remand proceedings; issues and evidence

5. Effect of after-acquired evidence on damages

B. Reinstatement

1. Generally

2. Requirement that complainant be reinstated to former position; application for reinstatement to comparable position when former position no longer exists

3. Immediate issuance of ERA reinstatement orders

4. Reinstatement not feasible; appropriateness of front pay as a substitute; transfer

5. Limitations on duration of reinstatement

a. Short-term project

b. Legitimate layoffs

c. Firing for legitimate reasons

d. Lapse of eligibility

e. Refusal of unconditional offer of reinstatement

6. Stay of reinstatement order

7. Job applicant/denied promotion

8. Benefits and privileges of employment

9. Outage Workers; right to "reinstatement"

C. Back pay, and other terms, conditions and privileges of employment

1. Generally

a. Statutory and regulatory authority; purpose

b. Requirement that complainant request back pay

c. Burden of proof; uncertainties resolved against discriminating party

d. Stay of Secretary's final order

e. Joint employer

2. Computation

a. Permissibility of use of hypothetical employment history

b. Duration of entitlement to back pay

i. Short term project or legitimate layoffs

ii. Firing for legitimate reasons

iii. Period complainant was not available for work

iv. Refusal of unconditional offer of reinstatement

v. Lack of mitigation of damages

c. Deductions/additions

i. Interim earnings

ii. Unemployment compensation/severance pay

iii. Self-employment

iv. Disability benefits

v. Lack of mitigation of damages

vi. Tax consequences of lump sum payment

d. Calculation of overtime; night-shift differential; salary increases

e. Interest

3. Terms, conditions and privileges of employment

D. Compensatory damages

1. Statutory and regulatory authority

2. When the issue of compensatory damages must be raised and proved

a. Complaint

b. Evidence presented at hearing

i. ALJ finds against complainant

ii. Future medical expenses and pain and suffering

3. Particular compensatory damages

a. Pain and suffering, mental anguish, embarrassment and humiliation

b. Loss of professional reputation

c. Medical expenses and adverse physical health consequences

d. Other

4. Scope of recovery

a. Comparative awards

b. Interest on compensatory damages

c. Continuing violations; blacklisting

d. Enhancement for tax consequences

e. Addition for damages incurred during remand proceedings

E. Litigation expenses

1. Statutory and regulatory authority

2. The "reasonably incurred" standard

3. Determining the reasonableness of a petition

a. Burden of proof; elements of petition; lodestar

b. Relevancy of fee agreement between complainant and counsel

c. Relevant community for comparing hourly rate

d. Miscellaneous factors

i. Productive versus nonproductive hours

ii. Peripheral matters

iii. Counsel's inexperience

iv. Time spent talking to the press

v. Other reductions

vi. Adjustment for increase in experience or inflation

e. Fee enhancement

i. Contingency-fee arrangement; risk of no payment

(1) Supreme Court authority on fee shifting statutes

(2) Secretary's view

ii. Delay in payment

f. Recovery for time spent in preparing a fee claim

g. Costs and expenses

4. Fee petitions for work before ALJ, Secretary and Court of Appeals

a. Proceedings before ALJ

b. Proceedings before the Secretary

c. Proceedings before the Court of Appeals

5. Respondent's request for attorneys' fees

6. Costs incurred by the complainant

7. Preliminary order on attorney fees

F. Punitive damages

G. Abatement and other relief

1. Statutory and regulatory authority

2. Particular relief

a. Expungement of personnel record and posting of decision

b. Other affirmative forms of abatement

c. Criminal sanctions; ordering further investigation or monitoring

A. Standard for review: fair, adequate and reasonable/authority of Secretary to review

B. Unacceptable terms or conditions

1. Specific provisions

a. Confidentiality provision/limitation on complainant's ability to provide information to DOL or other authorities

b. Matters not relating to ERA complaint or that arise under non-ERA statutes

c. Waiver of future claims

d. Interpretation under state law

e. Prior notice of filing of future complaints

f. Disclaimer of wrongdoing

g. Modification; requirement of consent of parties

h. Contingency provisions

i. Limitation on DOL enforcement authority

2. DOL's authority to control terms

a. Severance of unacceptable term or condition

b. Addition of term of dismissal with or without prejudice

C. Record for review

1. Generally

2. Absence of formal settlement document

3. Documents and dollar amounts referenced in settlement agreement must be submitted for review

D. Dismissal of claim

1. Regulatory authority

2. Motion to withdraw based on settlement does not void need for Secretary's review

E. Maintenance of confidentiality

1. Secretarial review required

2. Settlement agreement as a public document

F. Renunciation

G. Miscellaneous issues

1. Attorney's fees

2. Contingent agreement

3. District Director's finding that Act was violated despite settlement's stipulation of no violation admitted

4. Enforcement of settlement agreement

5. Satisfaction of terms prior to Secretary's review

6. Separate agreements

7. Time limit on Secretarial review

8. Findings of fact/conclusions of law improper

9. Other issues

A. Voluntary dismissal

1. Applicability of Rule 41

2. ALJ dismissals under Rule 41(a) are recommended

3. ALJ must state whether dismissal is with or without prejudice

4. Dismissal without leave; Rule 41(a)(1)(i)

a. In general

b. Functional equivalent of an answer

i. Employer requested hearing

ii. Complainant requested hearing

c. Summary judgment

d. Exceptions; merits raised or suit at advanced stage

e. Dismissal without prejudice

f. Costs not awardable under Rule 41(a)(1)(i)

5. Stipulated dismissal; Rule 41(a)(1)(ii)

a. In general

b. Dismissal based on a settlement agreement

6. Withdrawal of motion to dismiss

7. Failure to file written withdrawal

8. Other matters

B. Dismissal by order of the court; Rule 41(a)(2)

1. When Rule 41(a)(2) applies

2. Rule 41(a)(2) criteria

3. Legal prejudice

4. Criteria for determining whether conditions should be imposed

5. Dismissal without prejudice does not toll time limits for filing

C. Dismissal for cause

1. Generally

2. Requirement of preliminary order to show cause

3. ALJ's dismissals are recommended, not final

4. Failure to attend hearing

5. Abandonment

6. Failure to comply with the ALJ's lawful order

7. Default judgment

8. Failure to prosecute

9. Lack of jurisdiction

10. Misconduct of party/counsel

11. Repetitive claims

A. United States Constitution

B. Other federal statutes/regulations

1. Exclusiveness of Part 24 remedy

2. Res judicata effect

3. OSHA whistleblower provisions

4. Civil Service Reform Act

5. Whistleblower Protection Act

6. FECA

7. NRC regulations

8. Bankruptcy

[As to the precedential value of similar federal statutes, see X.A.1.]

C. State laws

1. Preemption

2. Res judicata effect

3. Full faith & credit

D. Arbitration/exhaustion of local remedies

E. Sovereign immunity

F. Prosecutorial immunity

G. Privileges

A. Prior DOL proceeding

B. Other proceedings

C. Law of the case; stare decisis