[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1980.109]

[Page 216]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)
 
PART 1980_PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS UNDER 
 
                          Subpart B_Litigation
 
Sec. 1980.109  Decision and orders of the administrative law judge.

    (a) The decision of the administrative law judge will contain 
appropriate findings, conclusions, and an order pertaining to the 
remedies provided in paragraph (b) of this section, as appropriate. A 
determination that a violation has occurred may only be made if the 
complainant has demonstrated that protected behavior or conduct was a 
contributing factor in the unfavorable personnel action alleged in the 
complaint. Relief may not be ordered if the named person demonstrates by 
clear and convincing evidence that it would have taken the same 
unfavorable personnel action in the absence of any protected behavior. 
Neither the Assistant Secretary's determination to dismiss a complaint 
without completing an investigation pursuant to Sec. 1980.104(b) nor 
the Assistant Secretary's determination to proceed with an investigation 
is subject to review by the administrative law judge, and a complaint 
may not be remanded for the completion of an investigation or for 
additional findings on the basis that a determination to dismiss was 
made in error. Rather, if there otherwise is jurisdiction, the 
administrative law judge will hear the case on the merits.
    (b) If the administrative law judge concludes that the party charged 
has violated the law, the order will provide all relief necessary to 
make the employee whole, including reinstatement of the complainant to 
that person's former position with the seniority status that the 
complainant would have had but for the discrimination, back pay with 
interest, and compensation for any special damages sustained as a result 
of the discrimination, including litigation costs, expert witness fees, 
and reasonable attorney's fees. If, upon the request of the named 
person, the administrative law judge determines that a complaint was 
frivolous or was brought in bad faith, the judge may award to the named 
person a reasonable attorney's fee, not exceeding $1,000.
    (c) The decision will be served upon all parties to the proceeding. 
Any administrative law judge's decision requiring reinstatement or 
lifting an order of reinstatement by the Assistant Secretary will be 
effective immediately upon receipt of the decision by the named person, 
and may not be stayed. All other portions of the judge's order will be 
effective ten business days after the date of the decision unless a 
timely petition for review has been filed with the Administrative Review 
Board.

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