[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1980.109]

[Page 215-216]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)
 
PART 1980_PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS 
 
                          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

[[Page 216]]

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 will not be stayed. All other portions of the judge's order will be 
effective 10 business days after the date of the decision unless a 
timely petition for review has been filed with the Administrative Review 
Board.