Because Complainant had not yet received notification of the results of the
Department's investigation, he requested that this matter be expedited and set for hearing before an
Administrative Law Judge. Respondent objected to this accelerated procedure. On September 3,
1996, the parties were ordered to show cause why this Office did or did not have jurisdiction of this
matter before the investigation was completed by the Wage and Hour Division.
Twenty-nine C.F.R. § 24.4 provides that the Administrator of the
Wage and Hour Division, Employment Standards Administration, is responsible for conducting
investigations and gathering data concerning cases which arise under these employee protection
statutes. The Administrator is provided thirty days in which to complete the investigation, determine
whether the alleged violation occurred, and give notice of this determination. 29 C.F.R. §
24.4(d)(1). This decision becomes the final decision of the Secretary of Labor if this Office does not
receive a request for a hearing within five days after the Administrator's decision is issued. 29
C.F.R. §§ 24.4(d)(2)(I) and (d)(3)(I). The Wage and Hour Division has not issued such
a determination on Complainant's cause of action.
Complainant contends that these regulatory guidelines are discretionary and
not jurisdictional. He asserts that the lengthy processing of whistleblower complaints deprives the
complainants of the protections intended by the statutes and should be construed as a constructive
denial of the complaint. Respondent, also noting that the regulations are not jurisdictional, argues
that the expiration of the thirty day time limit for an investigation does not automatically trigger the
right to a de novo hearing before this Office. Rather, Respondent urges that jurisdiction
does not transfer to the Office of Administrative Law Judges until the Administrator has issued a
notice of determination.
As Complainant correctly notes, the expedited processing of complaints
under the employee protection provisions of the aforementioned statutes arose from the need to
insure that employees could report perceived, potential, or actual violations without fear of
retaliation and to promote such reporting by others. The delay in processing and investigating these
complaints is inevitably detrimental to the employee who has allegedly suffered an adverse action,
which most likely will not be resolved until both parties have an opportunity to be heard on the
matter. This is contrary to the clear Congressional intent in enacting these statutes.
In Plumley v. Bureau of Federal Prisons , 86-CAA-6 (ALJ Dec.
31, 1986), a delay in the Wage and Hour investigation of five months was considered an exhaustion
of the complainant's administrative remedies and a denial of the action.2 Clearly, at some point such inaction must be
acknowledged as a constructive denial of the complaint. However, as only a little more than three
months have elapsed since the filing of Complainant's complaint with the Wage and Hour Division,
I do not deem the lack of a determination at this point to be a constructive denial of the complaint.
Complainant may renew his motion if further efforts to resolve or expedite this matter are
unsuccessful, though a showing of prejudice will be necessary to establish a constructive denial by
the Wage and Hour Division's delay. Thus, Complainant's request for a hearing before the Office
of Administrative Law Judges is premature and is hereby DENIED.
SO ORDERED.
JOHN M. VITTONE
JMV/cy
[ENDNOTES]
1
2
