ML20205F419

Forwards Program Mgt Info (SP-99-017) Re Compatibility Designations for Certain NRC Rules

ML20205F419
Person / Time
Issue date:	03/24/1999
From:	Lohaus P NRC OFFICE OF STATE PROGRAMS (OSP)
To:	GENERAL, MINNESOTA, STATE OF, OHIO, STATE OF, OKLAHOMA, STATE OF, PENNSYLVANIA, COMMONWEALTH OF, WISCONSIN, STATE OF
References
SP-99-017, SP-99-17, NUDOCS 9904060249
Download: ML20205F419 (16)

Text

p NR 241998

- ALL AGREEMENT STATES ~

MINNESOTA, OHIO, OKLAHOMA, PENNSYLVANIA, WISCONSIN PROGRAM MANAGEMENTINFORMATION: COMPATIBILITY DESIGNATIONS FOR CERTAIN NRC RULES (SP-99-017) l' In a letter dated July 2,1998 (SP-98-057), the Office of State Programs requested Agreement

- State comments on the appropriate compatibility category designation for the Nuclear -

Regulatory Commission (NRC) employee protection rules (10 CFR 19.20,30.7,40.7, 61.9,70.7). This issue was also discussed at the All Agreement States meeting on October 29--

l 31,1998 and a request for public comments was published in the Federal Reaister on July 28, l

' 1998. The purpose of this correspondence is to inform you that the Commission has reviewed

this matter and has determined that these regulations should remain compatibility category D -

l not required for purposes of compatibility. The Commission Staff Requirements Memorandum -

l (SRM) found at htto://www.nrc.aov/NRC/ COMMISSION /SRM/1999-002srm.html further directed L

that, "if the staff believes, now or at some time in the future, that there is a regulatory performance gap that puts Agreement State licensee employees at a higher risk than NRC licensee employees as a result of the present compatibility category, this information should be provided to the Commission to revisit this decision." l The Commission did not object to notifying the' Agreement States that your licensees should be

. reminded of the U.S. Department of Labor (DOL) requirement for informing employees of l employee rights and protection and the Occupational Safety and Health Administration (OSHA) ,

- form "Your Rights Under the Energy Reorganization Act" posting requirements. Enclosed for 1 your information are the DOL regulations, " Procedures for Handling Discrimination Complaints i Under Federal Employee Protection Statutes (29 CFR 24)" which includes the above i referenced OSHA form. Section 24.2(d)(1) of the DOL regulation states: "Every employer l subject to the Energy Reorganization Act of 1974, as amended, shall prominently post and l keep posted in any place of employment to which the employee protection provisions of the Act i apply a fully legible copy of the notice prepared by the Occupational Safety and Health i Administration printed as Appendix A to this part, or a notice approved by the Assistant Secretary for Occupational Safety and Health that contains substantially the same provisions and explains tho employee protection provisions of the Act and the regulations in this part."

Copies of the notice prepared by DOL may be obtained from the Assistant Secretary for Occupational Safety and Health, Washington, DC 20210, from local OSHA offices or from DOL's Website at: htta://www. osha.aov. This regulation and the OSHA form can also be found at: http://www.oali.do .aov/libwhist.htm. The DOL regulation and OSHA form state that licensees of the NRC and the Agreement States, an applicant for a license, a contractor or subcontractor of a licensee or applicant and a contractor or subcortractor of the Department of Energy are covered under these provisions.

If you have any named below. questions regarding this correspondence, please contact me or the individual f POINT OF CONTACT: ' Spiros C. Droggitis INTERNET: SCD@NRC. GOV TELEPHONE: (301) 415-2367 . FAX: (301) 415-3502 9904060249 990324 '

N PDR STPRO ESOGEN PAULH.LOHAUS PDR Paul H. Lohaus, Director

< Office of State Programs

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4[p \ UNITED STATES E NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 30006 4001

. March 24, 1999 ALL AGREEMENT STATES i MINNESOTA, OHlO, OKLAHOMA, PENNSYLVANIA, WISCONSIN PROGRAM MANAGEM'ENT INFORMATION: COMPATIBILITY DESIGNATIONS FOR CERTAIN NRC RULES (SP-99 017)

In a letter dated July 2,1998 (SP-98-057), the Office of State Programs requested Agreement State comments on the appropriate compatibility category designation for the Nuclear ,

Regulatory Commission (NRC) employee protection rules (10 CFR 19.20,30.7,40.7, 61.9,70.7). This issue was also discussed at the All Agreement States meeting on October 29-31,1998 and a request for public comments was published in the Federal Reaister on July 28, 1998. The purpose of this correspondence is to inform you that the Commission has reviewed this matter and has determined that these regulations should remain compatibility category D -

not required for purposes of compatibility. The Commission Staff Requirements Memorandum (SRM) found at htto://www.nrc.aov/NRC/ COMMISSION /SRM/1999-002srm.html further directed that,"if the staff believes, now or at some time in the future, that there is a regulatory performance gap that puts Agreement State licensee employees at a higher risk than NRC licensee employees as a result of the present compatibility category, this information should be provided to the Commission to revisit this decision."

The Commission did not object to notifying the Agreement States that your licensees should be reminded of the U.S. Department of Labor (DOL) requirement for informing employees of employee rights and protection and the Occupational Safety and Health Administration (OSHA) form "Your Rights Under the Energy Reorganization Act" posting requirements. Enclosed for your information are the DOL regulations, " Procedures for Handling Discrimination Complaints Under Federal Employee Protection Statutes (29 CFR 24)" which includes the above referenced OSHA form. Section 24.2(d)(1) of the DOL regulation states: "Every employer subject to the Energy Reorganization Act of 1974, as amendsd, shall prominently post and keep posted in any place of employment to which the employee protection provisions of the Act apply a fully legible copy of the notice prepared by the Occupational Safety and Health Administration printed as Appendix A to this part, or a notice approved by the Assistant Secretary for Occupational Safety and Health that contains substantially the same provisions and explains the employee protection provisions of the Act and the regulations in this part."

Copies of the notice prepared by DOL may be obtained from the Assistant Secretary for Occupational Safety and Health, Washington, DC 20210, from local OSHA offices or from

. DOL's Wesite at: htto://www. osha.aov. This regulation and the OSHA form can also be found at: htto://www.oali. dol.aov/libwhist.htm. The DOL regulation and OSHA form state that licensees of the NRC and the Agreement States, an applicant for a license, a contractor or subcontractor of a licensee or applicant and a contractor or subcontractor of the Department of Energy are covered under thase provisions. j If you have any questions regarding this correspondence, please contact me or the individual l named below.  !

I POINT OF CONTACT: Spiros C. Droggitis INTERNET: SCDO NRC. GOV I TELEPHONE: (301) 4' 367 (301) 415-3502

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Paul H. Lohaus, Direc;or Office of State Programs Enclosure- l

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Mondgy February 9,1998 i

e Part il Department of Labor Office of the Secretary 29 CFR Part 24 Procedures for Handling Discrimination Complaints Under Federal Employee Protection Statutes; Final Rule 6613 j

6614 Feder:1 Regist:r/Vol. 63, No. 26/ Monday, February 9,1998/ Rules and Regulations DEPARTMENT OF LABOR ERA apply to whistleblower claims filed employer are protected from employer on or after October 24.1992. the date of reprisals. An employee is protected Office of the Secretary enactment of Section 2902 of the Energy under 29 C.F.R. 24.2(b)(3) if an Policy Act of 1992. employee assists or participates in

' 29 CFR Part 24 A notice of proposed rulemaking and "* *

• any other action to carry out the RIN 1215.-AA83 request for comments was published in purposes of such Federal the Federal Register on March 16.1994 lenvironmental protection) statute."

Procedures for the Handling of (59 FR 12506). The Federal Register which would encompass such internal Discrimination Complaints Undar notice provided for a comment period complaints. This conclusion, that Federal Employee Protection Statutes until May 16.1994. A total of four whistleblower protecuons extend to comments were received during the internal safety and quality control AGENCY: Office of the Secretary and the comment period on the proposed Occupational Safety and Health complaints, has been sustained by a regulations, all from employers or number of courts of appeals. See, e.g.,

Administration. Labor, representatives of employers. The major Afackowlak v. UniversityNuclear ACTION: Final rule. Issues raised by the commenters are Systems,Inc.,735 F.2d 1159.1163 (9th identified below, as are the significant Cir.1984); Kansas Cas & Elec. Co. v

SUMMARY

This document provides the changes that have been made in the final text of revised regulations final regulatory text in response to the Brock. 780 F.2d 1505 (10th Cir.1985) governing the employee protection comments received. In addition to the cert denied. 478 U.S.1011 (1986)'-

("whistleblower") provisions of Section substantive comments discussed below, assak a wage Commissionn V. ePartment oflabar. 992 F.2d 474 211 (formerly Section 210) of the Energy commenters submitted minor editorial Reorganization Act of 1974 as suggestions some of which have been amended, to implement the statutory adopted and some of which have not 33 93 C B' Root Inc. v. n van. 747 F.2d 1029 (5th Cir.'

changes enacted into law on October 24. been adopted-1992, as part of the Energy Policy Act 1984). Under the Energy Policy Act of of 1992. This rule establishes separate Paperwork Reduction Act 1992 ERA's statutory definition of procedures and time frames for the This regulation contains no new Protected whistleblower activity was l handling of ERA complaints to reporting or recordkeeping expanded expressly to include )

implement the statutory amendments. requirements. Reporting requirements employees who file internal complaints 1 in addition, the rule establishes a catained in the regulations (S 24.3) with employers (thereby overriding the revised procedure for review by the were previously reviewed and approved decision of the Fifth Circuit in Brown &

Administrative Review Board (on behalf for use through February 28.1998 by the Root). employees who oppose any of the Secretary) of decisions of Office of Management and Budget unlawful practice under the ERA or the 1 administrative lawjudges under all of (OMB) and assigned OMB control AEA, and employees who testify before 1 the various environmental employee number 1215-0183 under the provisions Congress or in any other Federal or State I protection provisions. The rule also of the Paperwork Reduction Act of 1995 proceeding regarding the ERA or AEA reflects the transfer of responsibility for (Pub. L.104-13). Revised Definition of " Employer" administration of these statutes from the Administrator of the Wage and Hour Summary of Statutory Changes to ERA Whistleblower Provisions Former Section 210 of the ERA Division to the Assistant Secretary for included within the definition of a .

Occupational Safety and Health. Section 2902 of Public Law 102-486 covered " employer" licensees of the  !

DATES:This final rule is effective March (106 Stat. 2776) amended former Nuclear Regulatory Commission 11,1998. Section 210 of the ERA,42 U.S.C. 5851. ("NRC"), applicants for such licenses.

by renumbering it as Section 211 of the and their contractors and FOR FURTHER INFORMATION CONTACT:

Thomas Buckley, Director Office of ERA and making the additional changes subcontractors. The statutory described below. amendments revised the definition of '

i investigative Assistance, Occupational Gafety and Health Administration. U.S. Prohibited Acts " employer" to extend coverage to Department of Labor, Room N-3468. Former Section 210 of the ERA emPl oyees of contractors or 200 Constitution Avenue. NW., protected an employee against subcontractors of the Department of Washington. D.C. 20210.(202) 219- discrimination from an employer Energy ( DOE ), except those involved ,

8095. This is not a toll-free number. because the employee: (1) commenced, in naval nuclear propulsion work under '

SUPPLEMENTARY INFORMATION: The caused to be commenced, or was about E.O.12344, licensees of an agreement Energy Policy Act of 1992, Public Law to commence or cause to be commenced State under Section 274 of the Atomic 102-486, was enacted on October 24, a proceeding under the ERA or the Energy Act of 1954, applicants for such 1992. Among other provisions, this new Atomic Energy Act of 1954 ("AEA"); (2) licenses, and their contractors and law significantly amended the employee testified or was about to testify in any subcontractors.

protection provisions for r.uclear such proceeding; or (3) assisted or Time Period for Filing Complaints whistleblowers under former Section participated or was about to assist or 210 of the Energy Reorganization Act of participate in any manner in such a The time period for filing ERA 1974, as amended (" ERA"). now Section proceeding "* *

• or in ar y other whistlebbwer complaints was 211,42 U.S.C. 5851(b)(1). The action to carry out the purposes of (the expanded from 30 days to 180 days from amendments affect only ERA ER A or the AEA)." The Department's the date the violation occurs.

whistleblower complaints and do not consistent interpretation, under former Investigations of complaints however, extend to the procedures established in Section 210 of the ERA as well as the are still to be conducted under the 29 CFR Part 24 for handling employee other environmental whistleblower laws statute within 30 days of receipt of the whistleblower complaints under the six which the Department of Labor (" DOL") complaint. The ERA amendments apply other environmental employee administers, has been that employees to all complaints filed on or after the protection statutes. The amendments to who file complaints internally with an date of enactment.

)

l Federd R: gist:r/Vol. 63 No. 26/ Monday, February 9,1998/ Rules and Regulations 6615

)

Interim Relief cases). In such dual motive cases, the complainant falls to meet the prima The Secretary is required under the emPl oyer may prevail only by showing facle showing that protected activity amended ERA to order interim relief by a preponderance of the evidence that was a contributing factor in the upon the conclusion of an it would have reached the same _

unfavorable personnel action; or (2) the administrative hearing and the issuance decision even in the absence of the employer rebuts that showing by clear of a recommended decision that the Protected conduct. and convincing evidence that it would complaint has merit. Such interim relief The 1992 amendments added new have taken the same unfavorable includes all relief that would be statutory burdens of proof to the ERA. personnel i.ction cbsent the protected included in a final order of the Secreta'Y The changes have been described on the conduct.

except compensatory damages. one hand as a lowering of the burden on These new burden of proof limitations complainants in order to facilitate relief also apply to the determination as to Burdens ofProof; Avoidance of for employees who have bean retaliated whether an employer has violated the Frivolous Complaints against for exercising their statutory Act and relief should be orde;ed. Thus, The 1992 Amendments revised the rights, and, on the other hand, as a a determination that a violation has burdens of proof in ERA cases by limitation on the investigative authority occurred may only be made if the establishing statutory burdens of proof f the Secretary of Labor when the complainant has demonstrated that burden is not met. protected behavior or conduct was a Under the ERA as amended, a contributing factor in the unfavorable o Pl aint w ic not Prese t prima facle case. Before the 1992 complainant must make a ' prima facie, personnel action alleged in the Amendrsents, the ERA itself contained showing that protected conduct or complaint (section 211(b)(3)(C)). Where no statutory rules on burdens of proof- activity was "a contributing factor" in the complainant satisfies this burden, the burdens of proof were based on the unfavorable personnel action alleged relitf still may not be ordered if the in the complaint, f.e., that the employer satisfies the statutory precedential cases derived from other whistleblowing activity, alone or in requirement to demonstrate by " clear discrimination law (see, e.g., Mt.

Healthy City School District Board of combination with other factors, affected and convincing evidence" that it would in some way the outcome c,f the have taken the same personnel action m Education v. Doyle,429 U.S. 274 (1977); employer's personnel decisim (section the absence of the protected activity Texas Department of Community AITales 211(b)(3)(A)). This is a lesses standard

v. Burdine,450 U.S. 248 (1981); (section 211(b)(3)(D)).

than the "significant",

• motivating".

Mackowiak v. University Nuclear " substantial", or " predominant" factor Other Changes Systems, Inc.,735 F.2d 1159 (9th Cir.

standard sometimes articulated in case The ERA whistleblower provisions 1984); and Dartey v. Zack Company of law under statutes prohibiting must be prominently posted in any Chicago, Case No. 82-ERA (Decision of discrimination. If the complainant does place of employment to which the Act the Sectuary April 25,1983)). not make the prima facie showing the applies. The amendments also include Under the former lines of analysis for complaint must be dismissed and the an express provision that the ERA the ERA and continuing for investigation discontinued, whistleblower provisions may not be whistleblower complaints under the Even in cases where the complainant construed to expand, diminish, or other six environmental statutes, once a meets the initial burden of a prima facle otherwise affect any right otherwise complainant employee presents showing, the investigation must be available to an employee under Federal evidence sufficient to raise an inference discontinued if the employer or State law to redress the employee's that protected conduct likely was a " demonstrates, by clear and convincing discharge or other discriminatory action

" motivating" factor in an adverse action evidence, that it would have taken the taken by the employer against the taken by on employer against the same unfavorable personnel action" in employee-codifying and broadening employee, it is necessary for the the absence of the protected conduct the Supreme Court decision in English employer to present evidence that the (section 211(b)(3)(B)). The complainant v. General Electric Co., 496 U.S. 72 alleged adverse treatment was motivated is free, as under prior law, to pursue the (1990). Finally, the amendments direct by legitimate, nondiscriminatory case before the administrative lawjudge the NRC and DOE not to delay reasons. If the employer presents such (ALJ) If the Secretary dismisses the addressing any " substantial safety evidence, the employee still may complaint. hazard" during the pendency of a succeed by showing that the proffered The " clear and convincing evidence" whistleblower proceeding, and provide reason was pretextual, that is, that a standard is a higher degree of proof that a determination by the Secretary of discriminatory reason more likely burden on employers than the former Labor that a whistleblower violation has motivated the employer. The " preponderance of the evidence" not occurred "shall not be considered" complalnant thus bears the ultimate standard. In the words of Representative by the NRC and DOE in determining burden of proving by a preponderance George Miller, Chairman of the House whether a substantial safety hazard '

of the evidence that he or she was Committee on interior and Insular exists.

retaliated against in violation of the law. Affairs "[tlhe conferees intend t le such ' pretext cases, the factfinder,s replace the burden of proof enunciated Summary and Discussion of Major disbelief of the reasons put forward by in Mt. Healthyv. Doyle,429 U.S. 274 Comments the employer, together with the (1977), with this lower burden in order Comments were received from the elements of the prima facie case, may be to facilitate relief for employees aho Tennessee Valley Authority (TVA); the sufficient to show such intentional have been retaliated against for Nuclear Energy Institute (the discrimination. See St. Mary's Honor exercising their rights under section 210 organization of the nuclear power Center v. Hicks. 509 U.S. 502 (1993); * * * " 138 Cong. Rec. H I1409 industry responsible for coordinating i Darrey v, Zack, supra. pp. 6-9. (October 5 ;992). efforts of utilities licensed by NRC on j j in certain cases, tue trier of fact may Thus. under the amendments to ERA, regulatory issues); the law firm of i conclude that the employer was the Secretary must dismiss the Winston & Strawn. on behalf of five  ;

motivated by both prohibt.ed and complaint and not investigate (or cease utility companies and TVA: and legitimate reasons (" dual motive" investigating) if either: (1) The Westinghouse Electric Corporation. In i

j

i 6616 Feder:1 R gi:ter/Vol. 63. No. 26/ Monday, February 9,1998/ Rules and Regulations addition. In the period since the .

the Wage and Hour Division and the 450 U.S. 909 (1981), and Bonham v.

comment period closed. a request for Administrator thereof. Dresser Industries. Inc. 569 F.2d 187 rulemaking was received from Steptoe The Department has also published a (3rd Cir.1977), cert. denied. 439 U.S.

and Johnson on behalf of Alyeska proposed rule to provide new 821 (1978), arising under the Age ,

Pipeline Service Company, which has alternative dispute resolution ("ADR") Discrimination in Employment Act. and I also been considered. procedures in a number of Departmental Kamens v. Summit Stainless, Inc., 586 i The major comments received by the programs, including the various F. Supp. 324 (E.D. Pa.1984), arising Department and the response of the whistleblower statutes. 62 FR 6690 (Feb. under the Fair Labor Standards Act.

Department to the comments are 12,1997). This would supplement Three commenters state that discussed as they pertain to each section existing procedures in the regulations of references to the Atomic Energy Act of of Part 24 which is amenkd or to which the Office of Administrative Law Judges. 1954 are incorrect because that statute new provisions are added. which allow the parties to a proceeding has no whistleblower provisions One comment wa2 the general before an ALJ to request appointment of involving the Secretary of Labor, and suggestion that these rules should be a settlement judge to seek voluntary they state that the NRC enforces all produced through negotiated resolution of the issues. 29 CFR 18.9(e). aspects ;f that statute.

rulemaking, involving, as that process The proposed rule envisions a pilot The Department recognizes that the j does, the regulatory agencies (Nuclear program under which the Department whistleblower provisions were enacted Regulatory Commission. Department of would investigate a complaint and then, to be a part of the Energy Reorganization i Energy. Environmental Protection where the case is found to be suitable Act of 1974, as amended in 1992. The j Agency). Industry. public interest for ADR, offer the employer and confusion arises because the I groups, and respondents and employees the option of mediation and/ whistleblower provisions protect complainants and their representatives. or arbitration. The ARB would not be whistleblowers when they disclose l The Department does not believe that bound by any resolution reached, but alleged substantive violations of the I negotiated rulemaking is appropriate for would incorporate the settlement in the Atomi: Energy Act; however, when they l these regulatior s. The regulations final AP.B order where it meets ARB are dh eriminated against for doing so,  !

Involve largely procedural issues not so standards. 62 FR 6693. this is a violation of the ERA. not the difficult to resolve as tojustify invoking Atomic Energy Act. The statutory l the procedures of the Negotiated Secti n 24.1 Purpose and Scope references is clarified accordingly.

Rulemaking Act of 1990,5 U.S.C. 581 et The proposal updated the list of the Two commenters assert that the I seg. Federal statutes providing employee regulation's description of employer In the period since the proposed rule protections for whistleblowing activities conduct which is prohibited- i was published, two significant for which the Department of Labor is " intimidates, threatens, restrains, organizational cnanges have taken place responsible for enforcement under this coerces, blacklists, discharges or in any j in the Department of Labor which part to add the Comprehensive other manner discriminates against an  ;

materially affect these regulations. By Environmental Response, Compensation employee"-should be deleted in favor Secretary's Order No. 2-96 (61 FR and Liability Act of 1980,42 U.S.C. of the language of the statute, which 19978, May 3.1996), the Secretary 9610. This was subsequatly prohibits the employer's " discharge [of) appointed an Administrative Review accomplished in another rulemaki , 62 any employee or otherwise Board ("ARB" or " Board") to decide all FR 19985 (May 3.1996). No comments discriminatling) against any employee cases previously decided by the were received on this provision and no with respect to his compensation terms.

Secretary, h.cluding the various changes have been made. conditions, or privileges of employment employee protection "whistleblower" * * * "

statutes which are the subject of th.se Section 24.2 Obligations and The' language in paragraph (b) of the regulations. Therefore the ARB has been Prohibited Acts proposed regulation is exactly the same substituted for references to the The proposal revised this provision to as the language in S 24.2(b) of the Secretary reflect the statutory amendments adding current regulation. The language is .

In addition, the Secretary has to the list of proteued activities simply a fuller statement of the scope of l delqated the authority to investigate explicitly covered under the ERA, and prohibited conduct, thich encompasses complaints under these statutes to the to state that under the Secretary's discrimination of any kind with respect Assistant Secretary of the Occupational interpretation, the whistleblowing to the terms. conditions or privileges of Safety and Health Administration activities added to the ERA are employment. Accordingly, no change is

(" OSHA"), effective for all complaints protected under all of the whistleblower necessary.

received on or after February 3.1997. statutes. The requirement for posting of One commenter points out that the Secretary's Order 6-96 (62 FR 111, Jan. notices of the employee protection regulations proscribe discrimination by 2,1997, as corrected by 62 FR 8085, provisions of the ERA was also added. an employer against an employee who Feb. 21,1997), Since OSHA already had together with a provision that failure to "has" engaged in protected conduct.

authority to investigate complaints post the required notice shall make the The commenter believes that literally under the employee protection requirement that a complaint be filed read, the regulation does not require a provisions of the Surface Transportation with the Administrator within 180 days showing of a causal connection between Assistance Act and the discrimination inoperative unless and until the notice whistleblowing and discrimination.

provisions of the Occupational Safety is later posted or the respondent is able In order to avoid any possibility of and Health Act, this action placed all to establish that the employee had confusion, the language of the authority to investigate alleged actual notice of the provisions. This regulation in paragraphs (b) and (c) has discrimination because of an employee's explicit recognition that the statute of been changed to reflect the statutory complaints regarding the environment limitations may be equitably tolled is language.

and safety and health (other than in the based on case law under analogous The regulations at 5 24.2(d) provide mining industry) in one agency. statutes. See, for example, Kephart v. that the required poster must be l Therefore in these regulations OSHA Institute of Gas Technology,581 F.2d prepared or approved by DOL. Two of has been substituted for all references to 1287.1289 (7th Cir.1978), cert. denkd, the commenters believe that the poster

Federd Regist:r/Vol. 63, No. 26/ Monday, February 9,1998/ Rules and Regulations 6617 1 currently required by the Nuclear commenter suggests that without such fal.h. Such a provision seems Regulatory Commission is adequate and provision respondents will be deprived unnecessary. However, former S 24.9, j no additional poster should be required. of the opportunity to raise the which was inadvertently omitted from i One commenter sees this as unnecessary timeliness issue at a time which , .4 the proposal. has been h.cluded again. 1 as long as the employer's poster to them. This provision declares that employees I contains the requPed information. As the commenter noted, pursuant to who deliberately and without direction The statute states: "The provisions of the rules of the Office of Administrative of their employer violate Federallaw are this section shall be prominently posted Law Judges at 29 C.F.R.18.l(a), the not protected.

In any place of employment to which Federal Rules of Civil Procedure this section applies." The Department ("FRCP") apply in any instance where Section 24.4 Investigations l believes that it is necessary to use a there is no explicit poster prepared or approved by the governing program, in Part 18 orSection ruleand s statute the 24.4 was proposed to be Department to ensure that the poster revised to provide for filing of hearing regulations. Althouah, unlike under the requests by facsimile (fax), telegram, contains the essentialinformation Federal Rules, there is no provision for which needs to be communicated to hand-delivery, or next-day delivery filing an answer in these regulations, service (e.g., overnight couriers), to employees. For the convenience of the there are commonly various occasions conform the regulations to current j public, the Department has prepared a where issues such as timeliness can and business practices. In addition, the 4 poster which is published as an appropriately should be raised. The appendix to this rule and which is proposed regulation provided that the I Department believes it is reasonable to go I

available at any local OSHA office and at the DOL Website. The Department require that timeliness ordinarily be raised early in the proceedings, as both

}t five busin s days rati rtian will also approve any poster which the ALJ and the Secretary ruled in five calendar days, from receipt of the contains the same information and does Hobby v. Georgia Power Co., No. 90- Administrator's determination. The not contain any misleading information. ERA-30 ALJ s Recommended Decision proposed regulation also made it clear For example, the Department is working and Order (Nov. 8,1991). Secretary that the complainant may appeal from a with NRC to approve a poster which (Aug. 4.1995) (reversing and remanding finding that a violation has occurred would satisfy its needs as well as the on other grounds). A specific provision where the determination or order is requirements of the ERA.thus mems unnecessary. partially adverse (e.g., where a eliminating the need that both notices Two commenters take issue with the C nt w ll sted. present practice, which is continued in b d r da8e bekntrary to the statement of the the proposed regulations, of not all of the requested relief).

commenter, there is no requirement in requiring the complainant to serve the One commenter suggests that the i these regulations that respondents keep complaint on the respondent at the regulations should make clear that in a case where only a prevailing l records of the posting of the notice. This same time it is filed with the is a continuing requirement that should Department. Currently the respondent complainant appeals to an ALJ because i '

not require any kind of recordkeeping. must walt to receive the complaint from of dissatisfaction with the remedy Three commenters discuss the the Department. The commenters argue ordered by the Administrator (now the proposed S 24.2(d)(2), under which the that requiring the complainant to serve Assistant Secretary for OSHA), the non-employer's failure to post the required the complaint on the respondent would appealing respondent would have an notice of employee rights could lead to increase the respondent's response time. opportunity to contest liability before a tolling of the statute of limitations. Under their view of what the regulations the ALJ. This would prevent They express the concern that the should require, if the complainant did respondents from having to file appeals tolling rule will be applied too not serve the respondant, then the in cases in which they have decided not automatically, rather than on a case-by. respondent should have additional time to challenge the Administrator's ruling.

case basis pursuant to general equitable to respond to the Department. not knowing in which cases the principles as applied to all the facts and In the Department s experience the complainant will contest the remedy, circumstances of a particular case. Procedure in the present regulations has Allowing cross-appeals would The regulation indicates that the worked satlafactorily. The Department eliminate the need for complainants and employer has an opportunity to show may need to examine the complaint or, respondents to guess in such cases or 9 that the complaining employee was in as discussed below, to supplement the file appeals in all such cases. This fact aware of his or her rights, and thus complaint with interviews of the section is amended accordingly to allow equitable tolling would not apply. A complainant, before sending it to the for cross appeals. In addition, this clarifying change is made to the respondent. Furthermore, a complainant section is simplified to provide the regulation to provide that the 180 day may wish to withdraw a complaint if, mechanism for appeals of both the period " ordinarily" runs from the date for example, he or she learns it is complainant and the respondent in the the notice is posted (assuming of course untimely. A con,parison in this regard same paragraph.

that the employee was still emp:oyed at with proceedings before administrative the site) or the employee receives actual lawjudges is not valid, because the As one commenter suggested, this

""" '" sec' ion and S 24.8 are further arnended

" " "E " " * "

• in accordance with the Supreme Court aP ig fo e an ALJ Se-flon 24.3 Complaints One commenter states that the decision in Darby v. Cisneros. 509 U.S.

The proposed regulation revised regulations appear to protect persons 137 (1993), to make it clear that 5 24.3 to reflect the 180-day filing period who raise concerns in bad faith, but exhaustion of administrative remedies is for complaints under the ERA. does not cite any specific language in required.

One commenter asserts that the the regulations to support that in response to a question raised by regulations should provide that the proposition. one commenter, S 24.4(d)(3) is revised to respondent may raise the issue of Nothing in the current or proposed make it clear that service of copies of timeliness of complaints any time prior regulations provides for relief where the appeal must be done by the party to the conclusion of the hearing. The complaints are found to be made in bad appealing.

r 6618 Federal Regitt:r/Vol. 63. No. 26/ Monday, February 9,1998/ Rules and Regulations Section 24.5 Investigations under the of the protected activity as part of a One commenter argues that this EnergyReorganization Act prima facle case and suggests that the section should require pleading and A new S 24.5. concerning regulations address this issue. This is a proof of various ' cts relating to a claim investigations under the Energy matter which must be determined on of retaliatory nonselection, failure to Reorganization Act, was proposed to the basis of all the facts and hire, nonretention, nonpromotion.

detail operation of the new provisions circumstances of a particular case and is improper disciplinary action, improper under the ERA for dismissal of n t suitable for inclusion in the layoff or contract termination.

complaints where the employee has not ]ulations. The facts that must be pied and alleged a prima facle case, or the he proposed regulations at proven to establish a particular form of employer has submitted clear and S 24.5(b)(2) provide that the discriminat%n depend on the facts and convincing evidence that it would have c mP lainant must allege the existence circumst , of a particular case. The taken the same personnel action in the f facts and evidence constituting a Depart . does not believe that it is tbsence of the protected activity. Prima facle case of a violation in the approprue to attempt to catalogue in a Three commenters are critical of the c mP laint, supplemented as appropriate regulation all such facts for all possible Department's formulation in S 24.5(b) of by interviews of the complainant. One forms of discrimination, as suggested by what constitutes a prima facie case. commenter seeks elimination of these the commenter.

They believe that the regulations should Supplemental interviews.Two One commenter points out a j require the complainants to provide c mmenters suggest that since Wage typographical error: At S 24.5(b)(2) the I supporting evidence with their and Hour (now the Occupailonal Safety word " appropriated" was intended to {

complaints, and they believe that the end Health Administration) provides r ad "aPpmptlate." I regulations give too much weight to the the complaint to the employer for his Another commenter points out a i response, it is only fair to provide the amount of time between the protected Y#E'*E ' ' " " #

employer with the information obtained activity and the adverse action. In which provides that the respondent has in the interviews as it might contain support of this latter criticism they cite five business days to rebut the one or more of the elements of a cases for the proposition that this aHegadons in the complaint 'fron'.

violation to which the employer is l temporal proximity may be overcome by utred to respond.

receipt of notification of the the employer's evidence of non- refn the Department's view, the C mPl ainant., This is a typographical discriminatory reasons for the adverse supplementation of the complaint by error and the provision 1s amended by action. Interviews of the complainant is Changing complainant , to It would be overly restrictive to necessary and appropriate because .c mPl aint require a complainant to provide employees commonly lack the One commenter believes that the evidence of discrimination (as sophistication to aver the elements of a legislative history of the 1992 distinguished from a showing) w hen the prima facie case and evidence in Amendments shows that the " clear and only purpose of the complaint is to support thereof. It is recognized, convincing

• standard applicable to the trigger an investigation to determine if however, that the supplemental respondent's burden of proof to rebut there is evidence of discrimination. Interviews become a part of the the complainant s prima facle case Complainants generally do not have the complaint, and therefore in all fairness applies only at the pre-investigative knowledge or resources to actually this information, in addition to the stage of the case and does not apply submit " evidence" of the violative original compla!nt (which is routinely when the case is before the ALJ and the conduct. With regard to the cited cases provided to the employer), ought to be Secretary (ARB).

finding that temporal proximity provided to the employer. The The 1992 Amendments show clearly between the protected activity and the regulation has been amended to so that the " clear and convincing" edverse action was not enough to prove provide. standard is applicable to respondents at discrimination, those cases involved As suggested by one commenter, all stages of the proceedings. The new final decisions on the merits after S 24.5(b)(2) has been revised to seoarate S 24.5(c)(1) applies the standard to the evidence has been presented by both out two elements of the required prima pre-investigative stage of the parties. As set forth in Coutyv. Dole, facle showing-that adverse personnel Proceedings. The new S 24.7(b) applies 886 F.2d 147,148 (8th Cir.1989), case action has occurred, and that it likely the standard to proceedings before the law establishes that " temporal resulted from the protected activity. ALJ and the Administrative Review proximity is sufficient as a matter of law One commenter questions the Board. The interplay of these provisions to estaalish the final required element in language in S 24.5(b)(3) wherein a prima was at issue in the recent case of Dysert a prima facie case of retaliatory facle case is described as an inference v. United States Secretary ofLabor,105 discharge / that the respondent knew of the F.3d 607 (1Ith Cir.1997), in which the Furthermore, the regulation at issue complainant's protected activity and the court affirmed the Secretary's i here involves the complaint stage of the protected activity "was likely a reason" determination that a complainant must proceeding and merely triggers an for an adverse personnel action. The show more than a prima facie case of investigation and not a finding by commenter believes that this language discrimination in order to shift the OSHA on the merits of the complaint. creates a standard different from the burden of persuasion to the employer, i The regulation does not state that statutory requirement that the protected Rather, the complainant must I tempoN1 proximity is always enough to activity be "a contributing factor" in the " demonstrate" that the protected l establish a prima facle case, but rather unfavorable personnel action. behavior was a contributing factor by a states only that it is normally so. In There is no intention to deviate from preponderance of the evidence before antving at a final decision, OSHA the statutory standard f ar establishment the ALJ. In dual motive cases, the considers all pertinent evidence in of a prima facie case, as set forth in burden then shifts to the respondent to i tddition to temporal proximity. S 24.5(b)(2). The language "was likely a demonstrate by clear and convincing i One commenter cites cases dealing reason" was used to explain the evidence that it would have taken the with who in the respondent meaning of "was a contributing factor." same action in the absence of the organization must have the knowledge However, the provision is clarified. protected activity.

Feder:1 R: gist:r/Vol. 63, No. 26/ Monday, February 9,1998/ Rules and Regulations 6619

- Three commenters do not believe that Assistant Secretary) in certain cases has petition for rulemaking has also been five days is enough time for respondents acted as an lcus before ALJs and the received making the same request.

to respond to the complainant's prima Secretary (now the ARB).The Assistant The regulations at 29 C.F.R. 24.5(e)(1) facle case with clear and convincing Secretary's participation as an amicus or (renumbered as S 24.6(e)(1)) provide that evidence that it would have taken the party would follow an investigation formal rules of evidence shall not apply same unfavorable personnel action in conducted pursuant to the normal to these proceedings. The Department the absence of protected activity. procedures, as happens in most other believes it is inappropriate to apply the Given the overall statutory time frame programs where the Department rules of evidence at 29 C.F.R. Part 18 of 90 days, and the time necessary for prosecutes after conducting an because whistleblowers often appear other stages of the proceedings, no more investigation. Since the Assistant pro se. Furthermore, hearsay evidence is than five days is available for this stage Secretary is not the adjudicator, there often appropriate in whistleblower of the process. At any time during the would be no conflict between the cases, as there often are no relevant investigation the respondent is free to Assistant Secretary first investigating a documents or witnesses to prove provide OSHA with evidence in its complaint and later acting in a discriminatory intent. ALJs have the defense which will be considered by prosecutorial capacity. An analogous responsibility to determine the OSHA in making its final determination. procedure is followed in other appropriate weight to be given such Section 24.5(d) is revised to simplify programs. See, e.g., the Davis-Bacon - evidence. For these reasons the interests the provisions for apneal of a notice of regulations at 29 CFR 5.11. Furthermore, of determining all of the relevant facts dismissal of a complaint by cross- as in other programs. OSHA would not is best served by not requiring strict referencing the service provisions in be required to disclose confidential evidentiary rules and no change is made S 24.4. Information. Witnesses would be in this provision.

Section 24.6 Hearings available pursuant to normal One commenter states that the procedures. Since OSHA would not be regulations need to address the issue of Proposed S 24.6 (formerly S 24.5) both a party in a case and an advisor to voluntary dismissals, allowing made it clear that the Wage Hour the Secretary, there is no conflict with unilateral dismissals only prior to a Administrator (now the Assistant 29 CFR 18.32. Finally, the Solicitor of request for a hearing. After a request for Secretary of OSHA) may participate in Labor, or appropriate designee, would a hearing a dismissal could only be proceedings as a party or as amicus continue to make the decision as to granted if the respondent agreed to it or curiae. In addition, at the request of the participation in the legal proceedings, was compensated for costs, fees and Nuclear Regulatory Commission, an and would represent the Assistant expenses incurred in defending against express provision was added to permit Secretary, consistent with Secretary's the complaint up to that point.

Federal agencies to participate as Order 6-96. Although the regulations have no amicus curiae, and to receive copies of One commenter asserts that the Provision addressing voluntary pleadings on request. requirements in S 24.6(f)(2) and in dismissals, these proceedings are Because of comments suggesting that 55 24.4(d)(4) and 24.5(d)(2) that parties governed by the rules of the Office of the various time frames are too short, Administrative Law judges at 29 C.F.R.

serve the Administrator (now the and in recognition of current practices. Assistant Secretary of OSHA) and the Part 18 unless these regulations provide S 24 6(a) is amended to allow the parties Associate Solicitor of the Fair Labo, to the contrary. Those rules in turn to agree to a postponement of the Standards Division with pleadings and provide at S 18.l(a) that the Federal hearing. with copies of the request for a hearing Rules of Civil Procedure ("FRCP") apply Two commenters criticize the new violate the Paperwork Reduction Act, in any Instance where there is no provision in S 24.6(f)(1) allowing the and that requiring these " numerous explicit rule in Part 18 or the governing Administrator (now the Assistant filings" is burdensome. Another program's statute and regulations. Rule Secretary of OSHA) to participate as a commenter reads the proposed rule as 41(a) of the FRCP allows voluntary, party or as amicus curiae at any tirne in requiring employers to keep records of unilateral dismissal only up to the time the proceedings. They argue that the compliance with the posting the answer (or motion for summary Administrator cannot objectively requirements. Judgment if earlier) is filed; thereafter investigate a complaint and then This requirement is not subject to the the dismissal must be agreed to by the participate as a party, and that the Paperwork Reduction Act because the respondent or ordered by the court. The Administrator's participation as a party Act exempts collections of information Department has applied Rule 41(a) to would present problems about during the conduct of an administrative whistleblower proceedings. See, e.g.,

confidential information obtained action, investigation or audit against Carter v. Los Alamos Nat'llab., No. 93-during the investigative stage of the specific individuals or entities. 5 CFR CAA-10 (March 21,1994): Ryan v.

proceeding and with the attendance of 1320.4(a)(2). Since OSHA does not Pacific Cas & Electric Co. No. 87-ERA-witnesses at the hearing. In addition, participate in most cases, service of 32 (Aug. 9,1989): Nolder v. Raymond one commenter believes this provision copies of pleadings and briefs is Kaiser Eng*rs. Inc., No. 84-ERA-5 (June would run counter to 29 CFR 18.32 and important to keep the Assistant 28,1985). The Department sees no be in confilet with Secretary's Order I- Secretary and the Solicitor informed of reason why any other rule should apply 93 (now Secretary's Order 6-96), which cases in which the Department could to whistleblower proceedings. Therefore specifies that the Solicitor of Labor have an interest. no amendment is necessary. There is no makes the determination to bring legal One commenter suggests that the basis in the statute for requiring proceedings. regulations contain an express reference employees to pay fees and costs.

This proposal makes it expressly making the rules for the conduct of ALJ possible for the Assistant Secretary to proceedings in 29 CFR Part 18 and the Sect 1 n 24.7 Recommended Decision participate as an amicus or a party as a rules of evidence in that part applicable and Order matter of right in any case where such to the proceedings in these cases. This Proposed S 24.7 (formerly 5 24.6),

participation is necessary or beneficial would replace the nrovision in the concerning recommended decisions and to the program. Under the existing current 5 24.5(e)(11 relating to orders, added the statutory requirement regulations, the Administrator (now the " procedures, evidence and record." A that interim relief be ordered in ERA

6620 Federal Regist:r/Vol 63, No. 26/ Monday. February 9,1998/ Rules and Regulations cases once an administrative law judge ~ process requirements will have been The Department is of the view that it issues a recommended decision that the - fully satisfied by the ALJ hearing is unnecessary to have a regulation complaint is meritorious. Proposed already provided by the statute and describing the manner in which the I S 24.7 also provided with respect to all regulations. Moreover, the statute record is filed with the court. When whistleblower cases that the explicitly provides that a preliminary judicial review is sought in the court of recommended decision of the order of reinstatement (and other relief) appeals, the Department follows Rule administrative lawjudge becomes the shall be issued upon the conclusion of. 17(b) of the Federal Rules of Appellate final order of the Secretary if no petition the ALJ hearing and issuance of a Procedure, which provides a number of for review is filed. recommended decision that the alternative procedures for filing the Two commenters challenge the complaint has merit. 42 U.S.C. record.

constitutionality of the provision in 5851(b)(2)(A). Clearly nothing further is As one commenter suggested, and as S 24.7 for an award of compensatory required. The regulation has been discussed above, the provisions of  !

damages upon a finding of a violathn, modified to make it c! ear that former S 24.9. which were inadvertently I urging that only ajury can make such preliminary relief is required only if a omitted from the proposed rule, have an award- violation of the Act has been been reinstated in the regulation. ]

The regulation merely tracks the estab!!shed.

statutory provision that compensatory Dates ofA PPlicabfllty damages are available as a remedy. DOL, Section 24.8 Review by the Secretary Two commenters read the regulations '

as the agency given the administrative (ARB) as applicable to complaints filed under authority to implement that statutory A new proposed 5 24.8 detailed the the ERA prior to the October 1992 ERA -

provision, has no authority to question procedure for seeking review by the Amendments.

tne constitutionality of the statute. Secretary of a decision of an Section 2902(l) of the 1992 Furthermore. Congress has the authority Administrative Law judge. Amendments. Public Law 102-486, to create a statutory cause of action E"

• Two commenters question whether analogous to a common-law legal claim "The amendments made by this section review by the Secretary (now the ARB) and assign resolution to an shah apply to claims fued under section administrative or other tribunal where of an ALJ's decision is a matter of right r is discretionary, and, if the latter, 211(b)(1) of the Energy Reorganization Act of '

jury proceedings are not available 1974 (42 U.S.C. 5851(b)(1)) on or after the provided the adjudication is of a public what criteria the Secretary would use in date of the enactment of this Act.'

right-broadly defined to include "'a exercising that discretion. Clarification

" The date of the enactment of that Act is seemingly private right that is so closely Octoba 24,1992, so the regulatoy integrated into a public regulatory tt n fo review The intent of the regulations is that Pmvisi ns imp ementing l the 1992 ERA scheme as to be a matter appropriate for Amendments apply only to ERA agency resolution with limited appeals be a matter of right, and not C mPl aints filed on or after that date.

involvement by the Article 111 discretiona7 with the ARB. It is not Furthermore, as discussed above, the judiciary.'" Grannnanciera. S.A. v. mquired that the petition for review delegation of authority to the Assistant Nordberg. 492 U.S. 33. 51-55,54 (1989). have any particular form. Secretary for Occupational Safety and quoting from Thomas v. Union Carbide One commenter states that in order t Health is effective only with respect to AgriculturalProducts Co.,473 U.S. 568, v id frivolous complaints and abusive complaints received on or after February 593-94 (1985) (Brennan. J., concurring). litigation tactics, the regulations should 3.1997.

Three commenters believe that the 20 Provide for the Secretary s discretionary in all other respects, the provisions of days allotted for issuance of the ALJ's awarding of compensation against any this part are applicable to actions taken decision and order is too short, taking losing party guilty of such actions. on or after the effective date.

an i e g br d 4 ()a e I eU un e an a s m c of Th7 Department considers the 20-day available for successful complainants 1995: is Small Business Regulatory time period necessary, like the other the only relief provided by the statute. FC '"t Fairness Act; Executive 7S time periods in the regulations, because Affscellaneous Provisions of the overall time period in the statute The Department hat, concluded that of 90 days from complaint to Secretary's The proposed regulations removed this rule is not a "significant regulatory  !

decision. In a particular case, in S 24.7. concerning judicial review, and action" within the meaning of Executive I accordance with current practice, the former S 24.8 concerning enforcement Order 12866. Because it is procedural in j parties may agree to extend the period of decisions of the Secretary. These nature, it will not: (1) Have an annual '

for a hearing or decision and order, and Provisions vary from statute to statute effect on the economy of $100 million the regulations have been amended to so among the whistleblower programs. or more or adi rsely affect in a material provide. Furthermore. the types ofjudicial way the economy a sector of the Two commenters argue that the review or enforcement actions which economy, productivity, competition.

provision in S 24.7(c)(1) requiring are available does not need to be the jobs, the environment, public health or interim relief for the employee upon a subject of rulemaking since they are safety, or State, local or tribal finding by an ALJ of a violation should prescribed by statute and concern governments or communities; (2) create l include a hearing before the ALJ on the judicial remedies. a serious inconsistency or otherwise issue of interim relief. Reinstatement One commenter has expressed interfere with an action taken or should only be available if a violatio: is concern that removal of the former planned by another agency; (3) proven. S 24.7(c) in which the Secretary is materially alter the budgetary impact of The purpose of interim relief, to directed to prepare the record of a case entitlements, grants, user fees, or loan provide a meritorious complainant with in the event ofjudicial review. could programs or the dghts and obligations of a speedy remedy, would be frustrated if interfere with thejudicial review recipients thereof; or (4) raise novel a second hearing were required. Due process. legal or policy issues arising out of legal

Fed:r:1 Regi:t:r/Vol. 63 No. 26/ Monday, February 9,1998/ Rules and Regulations 6621 anandates, the President's priorities, or 24.6 Hearings. requireinent imposed under such the principles set forth in Executive 24.7 Recommended decision and order. Federal statute.

Order 12866. Therefore, no regulatory 24.8 Review by the Administrative Review (2) Testified or is about to testify in impact analysis has been prepared. Board.

' an such proceeding; or Similarly, because the rule is not 3) Assisted or participated, or is economically significant, it is not a h9 per toiart 24~Your Rights Under about to assist or participate, in any the Energy Reorganization Act.

major rule within the meaning of Authority: 15 U.S.C. 2622: 33 U.S.C.1367; manner in such a proceeding or in any Section 804(2) of the Small Business 42 U.S.C. 300J-9(1),5851,6971,7622,9010. other action to carry out the purposes of s Regulatory Enforcement Fairness Act, such Federal statute, and does not require a Section 202 5 24.1 Purpose and scope. (c) Under the Energy Reorganization statement under the Unfunded (a) This part implements the several Act, and by interpretation of the Mandates Reform Act of 1005. Finally, employee protection provisions for Secretary under any of the other statutes these regulations will not result in any which the Secretary of Labor has been listed in S 24.l(a), any employer is increased costs to State, local or tribal given responsibility ptasuant to the deemed to have violated the particular governments and therefore are not ' following Federal statutes: Safe federal law and these regulations if such subject to Executive Order 12875. Drinking Water Act. 42 U.S.C. 300J-9(i); employer intimidates, threatens, l Water Pollution Control Act,33 U.S.C. restrains, coerces, blacklists, discharges, j Regulatory Flexibility Analysis 1367;ToxL Substances Control Act,15 or in any other manner discriminates l The Department has determined that U.S.C. 2622; Solid Waste Disposal Act, against any employee because the the regulation will not have a significant 42 U.S.C. 6971; Clean Air Act,42 U.S.C.

economic impact on a substantial 7622; Energy Reorganization Act of emp)loyee (1 Notifiedhas:

the employer of an number of small entities. The regulation 1974,42 U.S.C. 5851; and alleged violation of such Federal statute implements procedural revisions Comprehensive Environmental or the AEA of 1954; necessitated by statutory amendments Pesponse, Compensation and Liability (2) Refused to engage in any practice and provisions which improve the Act of 1980,42 U.S.C. 9610. made unlawful by such Federal statute procedures for speedier resolution of (b) Procedures are established by this r the AEA of 1954, if the employee has whistleblower complaints. The part pursuant to the Federal statutory identified the alleged illegality to the Department of Labor certified to this provisions listed in paragraph (a) of this employer; or effect to the Chief Counsel for Advocacy section, for the expeditious handling of (3) Testified before Congress or at any of the Small Business Administration. complaints by employees, or persons Federal or State proceeding regarding Therefore, no regulatory flexibility acting on their behalf, of discriminatory any provision (or proposed provision) of analysis is required. action by employers. such Federal statute or the AEA of 1954.

Document Preparation: This (c) Throughout this part, " Secretary" (d)(1) Every employer subject to the document was prepared under the or " Secretary of Labor" shall mean the Energy Reorganization Act of 1974, as direction and control of Gregory R. Secretary of Labor, U.S. Department of amended, shall prominently post and Watchman, Acting Assistant Secretary, Labor, or his or her designee. " Assistant keep posted in any place of employment Occupational Safety and Health Secretary" shall mean the Assistant to which the employee protection Administration, U.S. Department of Secretary for Occupational Sifety and Provisions of the Act apply a fully Labor, Health U.S. Department of Labor, or his legible copy of the notice prepared by or her designee. the Occupational Safety and Health List of Subjects in 29 CFR Part 24 Administration, printed as appendix A Administrative practice and $ 24.2 Obligations and prohibited acts. to this part, or a notice approved by the procedure. Employment. Environmental (a) No employer subject to the / sslant Secretary for Occupational protection, Investigations Reporting provisions of any of the Federal statutes Safety and Health that contains and recordkeeping requirements, listed in S 24.l(a), or to the Atomic substentially the same provisions and Whistleblowing. Energy Act of 1954 (AEA),42 U.S.C. explalas the employee protection Signed at Washington. DC, this 30th day of 2011 et seq., may discharge any provisions of the Act and the January 1998. employee or otherwise discriminate regulations in this part. Copies of the Charles N. Jeffress, against any employee with respect to notice prepared by DOL may be Acting Assistant Secretary for occuparlonal the employee's compensation, terms, obtained from the Assistant Secretary Safety andHealth. conditions, or privileges of employment for Occupational Safety and Health.

Accordingly, for the reasons set out in because the employee, or any person Washington, D.C. 20210, from local the preamble, and under the delegation acting pursuant to the employee's offices of the Occupational Safety and of authority in Secretary's Order 6-96 request, engaged in any of the activities Health Administration, or frora the (62 FR 111, Jan. 2,1997, as corrected by specified in this section. Department of Labor's Website at http:/

62 FR 8085 Feb. 21,1997),29 CFR part (b) Any employer is deemed to have /www. osha gov.

24 is revised to read as follows: violated the particular federal law and (2) Where the notice required by the regulations in this part if such paragraph (d)(1) of this section has not PART 24-PROCEDURES FOR THE employer intimidates, threatens, been posted, the requirement in HANDLING OF DISCRIMINATION restrains, coerces, blacklists, discharges, S 24.3(b)(2) that a complaint be filed COMPLAINTS UNDER FEDERAL or in any other manner discriminates with the Assistant Secretary within 180 EMPLOYEE PROTECTION STATUTES against any employee because the days of an alleged violation shall be inoperative unless the remondent Sec. emp)loyee has:(1 Commenced or caused to be that the complainant had establishes h h"[3Q,*n ahhtbited acts. c mmenced, or is about to commence or notice of the material provisions of the 24.3 Complaint. cause to be commenced, a proceeding notice. If it is established that the notice 24.4 Investigations. under one of the Federal statutes listed was posted at the employee's place of 24.5 Investigations under the Energy in S 24.l(a) or a proceeding for the employment after the alleged Reorganization Act. administration or enforcement of any discriminatory action occurred or that

~

6622 Federal Registir/Vol. 63, No. 26/ Monday, February 9,1998/ Rules and Regulations the complainant later obtained actual protects the confidentiality of any $ 24.5 investigations under the Energy notice, the 180 days shall ordinarily run person other than the complainant who Reorganization Act.

from that date. provides information on a confidential (a) In addition to the investigation

$ 24.3 Complaint. basis, in accordance with part 70 of this procedures set forth in S 24.4 this title' sectaa sets forth special procedures (a) Who may file. An employee who applicable cnly to investigations under believes that he or she has been (d)(1) Within 30 days of receipt of a the Energy Reorganization Act.

discriminated against by an employer in complaint, the Assistant Secretary shall (b)(1) A complaint of alleged violation violation of any of the statutes listed in complete the investigation, determine shall be dismissed unless the ]

$ 24.l(a) may file, or have another whether the alleged violation has complainant has made a prima facle person file on his or her behalf, a occurred, and give notice of the showing that protected behavior or ccmplaint alleging such discrimination. determination. The notice of conduct as provided in S 24.2(b) was a (b) Time offiling. (1) Except as determination shall contain a statement contributing factor in the unfavorable provided in paragraph (b)(2) of this of reasons for the findings and personnel action alleged in the j section, any complaint shall be filed conclusions therein and, if the Assistant complaint. -

within 30 days after the occurrence of Secretary determines that the alleged (2) The complaint, supplemented as the alleged violation. For the purpose of violation has occurred, shall include an appropriate by interviews of the determining timeliness of filing, a , propriate order to abate the violation. complainant, must allege the existence complaint filed by mall shall be deemed . ice of the determination shall be of facts and evidence to meet the filed as of the date of mailing. given by certified mall to the required elements of a prima facle case.

(2) Under the Energy Reorganization complainant, the respondent, and their "S I II *S Act of 1974, any complaint shall be filed representatives (if any), At the same (i) The employee engaged in a within 180 days after the occurrence of pr tected activity or conduct, as set time, the Assistant Secretary shall file the alleged violation. f rth in S 24.2:

(c) Form of complaint. No particular with the Chief Administrative Law (ii) The respondent knew that the form of complaint is required, except judge, U.S. Department of Labor, the employee engaged in the protected that a complaint must be in writing and riginal complaint and a copy of the activity; should include a full statement of the n tice of determination. (111) The employee has suffered an acts and omissions, with pertinent (2) The notice of determination shall unfavorable personnel a: tion: and .

dates, which are believed to constitute include or be accompanied by notice to (iv) The circumstances were sufficient the violation. the complainant and the respondent to raise the inference tha: the protected (d) Place offiling. A complaint may be that any party who desires review of the activity was likely a con.ributing factor filed in person or by mail at the nearest in the unfavorable actP;n.

determination or any part thereof, local office of the Occupational Safety (3) For purposes of determining including judicial review, shall file a and Health Administration, listed in whether to investigre, the complainant request for a hearing with the Chief * ""' " ****

most t&pha directories under U.S. Adminisuative Law Judge within five Government Department of Labor. A " *" "" "

business days of receipt of the co plaint rnay also b iled h the determination. The complainant or PP "

r [ ugh Inte s of the co nant, resp ndent in turn may request a alleges the exister :e of facts and either Occupational Safety and Health Administration, U.S. Department of hearing within five business days of the direct or circumstential evidence to date of a timely r2 quest for a hearing by meet the required clements of a prima Labor, Washington, D.C. 20210.

p u ng acle case, Le, to gh rise to an (Approved by the Office of Management and 13udget under control number 1215-is timely filed, the notice of mference that the respondent knew that 0183.) determination of the Assistant Secretary the employee engaged in protected shall be inoperative, and shall become activity, and that the protected activity 924.4 investigations, operative only if the case is later was likely a reason for the personnel (a) Upon receipt of a complaint under dismissed. If a request for a hearing is action. Normally the burden is satisfied, this part, the Assistant Secretary shall not timely filed, the notice of for example, if it is shown that the notify the person named in the determination shall become the final adverse personnel action took place complaint, and the appropriate office of order of the Secretary. shortly after the protected activity, the Federal agency charged with the giving rise to the inference that it was (3) A request for a hearing shall be  ;

administration of the affected program fact r in the adverse action. If these IIIS "E' filed with the Chief Administrative Law e ements am not subtanuatM in We (b) The Assistant Secretary shall, on a Judge by facsimile (fax), telegram, hand inv stigati n, the investigation will  !

priority basis, investigate and gather delivery, or next-day delive'Y service. A cease.

data concerninpuch case, and as part c py f the request for a hearing shall (c)(1) Notwithstanding a finding that of the investigation may enter and be sent by the party requesting a hearing a complainant has made a prima facie to the complainant or the respondent inspect such places and records (and showing required by this section with 1 make copies thereof), may question (employed, as appropriate, on the same respect to complaints filed under the persons being proceeur I against and day that the hearing is requested, by Energy Reorganization Act, an i facsimile (fax), telegram, hand delivery, other employees of the ;harged investigation of the complainant's employer, and may require the or next-day delivery service. A copy of complaint under that Act shall be production of any documentary or other the request for a hearing shall also be discontinued if the respondent evidence deemed necessary to sent to the Assistant Secretary for demonstrates by clear and convincing determine whether a violation of the Occupational Safety and llealth and to evidence that it would have taken the the Associate Solicitor, Division of Fair law involved has been committed. same unfavorable personnel action in i (c) Investigations under this part shall Labor Standards, U.S. Department of the absence of the complainant's l

+ conducted in a manner which Labor. Washington. D.C. 20210. protected behavior or conduct.

I 1

I

Feder:1 R: gist:r/Vol 63, No. 26/ Monday, February 9,1998/ Rules and Regulations 6623 (2) Upon receipt of a complaint under introduced in the others, and a separate order to show cause why the dismissal the Energy Reorganization Act, the orjoint decision shall be made, as should not be granted and afford all respondent shall be provided with a parties a reasonable time to respond to copy of the complaint (as supplemented ap(propriate.c) Place othearing. The hearing shall, such order, After the t by interviews of the complainant,if any) where possible, be held at a place has expired, the administrative law I and advised that any evidence it may within 75 miles of the complainant's judge shall take such action as is wish to submit to rebut the allegations residence. appropriate to rule on the dismissal,

. In the complaint must be received (d) Right to counsel. In all which may include a recommended wi hin five business days from receipt Proceedings under this part, the parties order dismissing the claim, defense or i of notification of the complaint. If the shall have the right to be represented by party. '

respondent falls to make a timely counsel. (f)(1) At the Assistant Secretary's response or if the response does not (e) Procedures, evidence and record- discretion, the Assistant Secretary may demonstrate by clear and convincing (1) Evidence. Formal rules of evidence participate as a party or participate as evidence that the unfavorable action shall not apply, but rules or principles amicus curiae at any time in the  !

would have occurred absent the ' designed to assure production of the proceedings. This right to participate )

protected conduct, the investigation most probative evidence available shall shall include, but is not limited to, t ,e shall proceed. The investigation shall be applied. The administrative law right to petition for review of a proceed whenever it is necessary or judge may exclude evidence which is recommended decision 4 an appropriate to confirm or verify the immaterial, irrelevant, or unduly administrative lawjudge, including a information provided by respondent. repetitious. decision based on a settlement i (d) Whenever the Assistant Secretary (2) Record othearing. All hearings agreement between complainant and dismisses a complaint pursuant to this shall be open to the public and shall be respondent, to dismiss a complaint or to l section without completion of an mechanically or stenographically issue an order encompassing the terms I investigation, the Assistant Secretary reported. All evidence upon which the of the settlement. l shall give notice of the dismissal, which administrative lawjudge relles for (2) Copies of pleadings in all cases, l shall contain a statement of reasons decision shall be contained in the whether or not the Assistant Secretary is 1 therefor, by certified mail to he transcript of testimony, either directly participating in the proceeding, shall be l complainant, the respondent, and their or by appropriate reference. All exhibits sent to the Assistant Secretary, representatives. At the same time the and other pertinent documents or Occupational Safety and llealth Assistant Secretary shall file with the records, either in whole or in material Administration, and to the Associate Chief Administrative Law judge, U.S. part, introduced as evidence, shall be Solicitor, Division of Fair Labor Department of Labor, a copy of the marked for identif. cation and Standards, U.S. Department of Labor, complaint and a copy of the notice of incorporated into the record. Washington, D.C. 20210.

dismissal. The notice of dismissal shall (3) Oral argument; briefs. Any party. (g)(1) A Federal agency which is constitute a notice of determination upon request, may be allowed a interested in a proceeding may within the meaning of S 24.4(d), and any reasonable time for presentation of oral participate as amicus curiae at any time request for a hearing shall be filed and argument and to file a prehearing brief in the proceedings, at the agency's served in accordance with the or other written statement of fact or law, discretion.

provisions of S 24.4(d) (2) and (3). A copy of any such prehearing brief or (2) At the request of a Federal agency other written statement shall be filed which is interested in a proceeding,

$ 24.6 Hearings. with the Chief Administrative Law copies of all pleadings in a case shall be (a) Notice othearing. The judge or the administrative lawjudge served on the Federal agency, whether administrative lawjudge to whom the assigned to the case before or during the or not the agency is participating in the case is assigned shall, within seven proceeding at which evidence is proceeding.

calendar days following receipt of the submlited to the administrative law request for hearing, notify the parties by judge and shall be served upon each $ 24.7 Recommended decision and order, certified mall, directed to the last party. Post hearing briefs will not be (a) Unless the partiesjointly request known address of the parties, of a day, permitted except at the request of the or agree to an extension of time, the time and place for hearing. All parties administrative lawjudge. When administrative law judge shall issue a shall be given at least five days notice permitted, any such brief shall be recommended decision within 20 days of such hearing. However, because of limited to the issue or issues specified after the termination of the proceeding the time constraints upon the Secretary by the administrative lawjudge and at which evidence was submitted. The by the above statutes, no requests for shall be due within the time prescribed recommended decision shall contain postponement shall be granted except appropriate findings, conclusions, and a for compelling reasons or with the by(the administrative lawjudge.4) Dismissal recommendedfor cause.

order (i) andThe be served upon consent of all parties. administrative lawjudge may, at the all parties to the proceeding.

(b) Consolidated hearings. When two request of any party, or on his or her (b) In cases under the Energy or more hearings are to be held, and the own motion, issue a recommended Reorganization Act, a determination that same or substantially similar evidence is decision and order dismissing a claim: a violation has occurred may only be relevant and material to the matters at (A) Upon the failure of the made if the complainant has issue at each such hearing, the Chief complainant or his or her representative demonstrated that protected behavior or Administrative Law judge may, upon to attend a hearing without good cause; conduct was a contributing factor in the motion by any party or on his own or or .

unfavorable personnel action alleged in her own motion, order that a (B) Upon the failure of the the complaint. Relief may not be consolidated hearing be conducted. complainant to comply with a lawful ordered if the respondent demonstrates Where consolidated hearings are held, a order of the administrative lawjudge. by clear and convincing evidence that it single record of the proceedings shall be (ii) In any case where a dismissal of would have taken the same unfavorable made and the evidence introduced in a claim, defense, or party is sought, the . personnel action in the absence of such one case may be considered as administrative lawjudge shall issue an behavior. The proceeding before the

i; ,

4 .

6624 Fed:ral Regist:r/Vol. 63. No. 26/ Monday, February 9,1998/ Rules and Regulations administrative law ludge shall be a filed with the Administrative Review (c) The final decision shall be issued proceeding on the urits of the Board. Any award of compensatory within 90 days of the receipt of the I complaint. Neither the Assistant damages shall not be effective until the complaint and shall be served upon all l Secretary's determination to dismiss a firal decision is issued by the parties and the Chief Administrative complaint pursuant to S 24.5 without Administrative Review Board. Law Judge by mail to the last known completing an investigation nor the - ddress.

(d) The recommended decision of the Assistant Secretary s determination not (d)(1) If the Board concludes that the administrative law judge shall become to dismiss a complaint is subject t Party charged has violated the law, the the final order of the Secretary unless, l review by the administrative lawjudge, pursuant to S 24.8, a petition for review fin I rder shall order the party charged  !

and a complaint may not be remanded to take appropriate affirmative action to is timely filed with the Administrative  ;

for the completion of an investigation abate the s tolation, including Review Board' l on the basis that such a determination reinstatement of the complainant to that to dismiss was made in error. $ 24.8 Review by the Administrative person's former or substantially (cW) Upon the conclusion of the Review Board. equivalent position, if desired, together i heA . - nd the issuance of a with the compensation (including bar k reconanended deelslon that the (a) Any party desiring to seek review,

. pay), terms, conditions, and privileges complaint has merit, and that a includingjudicial review, of a of that employment, and, when l violation of the Act has occurred, the recommended decision of the appropriate, compensatory damages. In administrative lawjudge shall issue a administrative law judge shall file a cases arising under the Safe Drinking recommended order that the respondent petition for review with the Water Act or the Toxic Substances take appropriate affirmative action to Administrative Review Board ("the Control Act, exemplary damages may i abate the violation, including Board ,), which has been delegated the also be awarded when appropriate, reinstatement of the complainant to his authority to act for the Secretary and (2) If such a final order is issued, the or her former position, if desired, e ects1 ns uncler thi art. T

, Board, at the request of the complainant.

together with the compensation P' shall assess against the respondent a (including back pay), terms, condii..m. r cel within ten busine s days of the sum equal to the aggregate amount of all and privileges of that employment, and. ***"" P""***""*" "E"" '"*Y '

when appropriate, compensatory the administrative lawjudge and shall and expert witness fees) reasonably damages. In cases arising under the Safe gP incurred by the complainant, as Drinking Water Act or the Toxic Administrative Law judge. If a timely determined by the Board, for, or in Substances Control Act, exemplary Petition for review is filed, the f connection with, the bringing of the damages may also be awarded when

} *{" *

• SI " dp & C mPl aint upon which the order was .I appropriate. Issued.

(2) In cases brought under the Energy inoperative unless and until the Board issues n rder adopting the (e) If the Board determines that the Reorganization Act, when an party charged has not viobted the law, administrative lawjudge issues a recommended decision, except that for C $ $" "" "

an order shall be issued denying the recommended order that the complaint c mP laint.

has merit and containing the relief Re 8 r o 9 prescribed in paragraph (c)(1) of this Preliminary order of relief shall be $ 24.9 Exception, section, the administrative lawjudge effective while review is conducted by This part shall have no application to shall also issue a preliminary order the Board. any employee alleging activity providing all of the relief specified in (b) Copies of the pc ition for review prohibited by this part who, acting paragraph (c)(1) of this section with the and all briefs shall be served on the without direction from his or her exception of compensatory damages. Assistant Secretary Occupational Safety employer (or the employer's agent),

This preliminary order shall constitute and Health Administration and on the deliberately causes a violation of any the preliminary order of the Secretary Associate Solicitor, Division of Fair - requirement of a Federal statute listed in and shall be effective immediately, Labor Standards, U.S. Department of S 24.l (a).

whether or not a petition for review is Labor, Washington, D.C. 20210. eRUNG CODE 45bM-C l

l i

)

Fed r:1 Regist:r/Vol 63, No. 26/ Monday, February 9,1998/ Rules and Regulations 6625 l

Appendix A to Part 24-Your Rights Under the Energy Reorganization Act )

YOUR RIGHTS UNDER THE ERA l

THE ENERGY REORGANIZATIOF' ACT(ERA), MAKES IT ILLEGAL FOR AN EMPLOYER COVERED BY THE ACT-INCLUDING A LICENSEE OF TH :, NUCLEAR REGULATORY COMMISSION (NRC) OR AN AGREEMENT STATE, AN APPLICANT FOR A LICENSE, A CONTRACTOR OR SUBCONTRACTOR OF A LICENSEE OR APPLICANT AND A

];

CONTRACTOR OR SUBCONTRACTOR OF THE DEPARTMENT OF ENERGY (DOE) UNDER THE ATOMIC ENERGY ACT(AEA)-TO DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE INTERMS OF COMPENSATION, CONDITIONS OR PdlVILEGES OF EMPLOYMENT 12CAUSE THE EMPLOYEE OR ANY PERSON ACTING AT AN EMPLOYEE'S REQUEST PERFORMS A PROTECTED ACTIVITY.

RIGHT TO RAISE A SAFETY CONCERN: YOU ARE ENGAGED IN PROTECTED ACTIVITY WHEN YOU:

(1) NOTIFY YOUR EMPLOIER OF AN ALLEGED VIOLATION OF THE ERA OR THE AEA;  !

(2) REFUSE TO ENGAGE IN ANY PRACTICE MADE UNLAWFUL BY THE ERA OR THE AEA,IF YOU HAVE IDENTIFIED l

THE ALLEGED ILLEGALITY TO THE EMPLOYER; '

(3) TESTIFY BEFORE CONGRESS OR AT ANY FEDERAL OR STATE PROCEEDING REGARDING ANY PROVISION OR PROPOSED PROVISION OF THE ERA OR THE AEA; (4) COMMENCE OR CAUSE TO BE COMMENCED A PROCEEDING UNDER THE ERA, OR A PROCEEDING FOR THE ADMINISTRATION OR ENFORCEMENT OF ANY REQUIREMENT IMPOSED UNDER THE ERA; (5) TEST!FY OR ARE ABOUT TO TESTIFY IN ANY SUCH PROCEEDING; OR (6) ASSIST OR PARTICIPATE IN SUCH A PROCEEDING OR IN ANY OTHER ACTION TO CARRY OUT THE PURPOSES OF THE ERA OR THE AEA.

UNLAWFUL ACTS BY EMPLOYERS: IT IS UNLAWFUL FOR AN EMPLOYER TO INTIMIDATE, THREATEN, RESTRAIN, COERCE, BLACKLIST, DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE AGAINST ANY EMPLOYEE BECAUSE THE EMPLOYEE HAS ENGAGED IN PROTECTED ACTIVITY.

COMPLAINT: AN EMPLOYEE OR EMPLOYEE REPRESENTATIVE MAY FILE A COMPLAINT CHARGING DISCRIMINATION IN VIOLATION OF THE ERA WITHIN 180 DAYS OF THE DISCRIMINATORY ACTION. A COMPLAINT MUST BE IN WRITING AND SHOULD INCLUDE A FULL STATEMENT OF FACTS, INCLUDING THE PROTECTED ACTIVITY ENGAGED IN BY THE EMPLOYEE, KNOWLEDGE BY THE EMPLOYER OF THE PROTECTED ACTIVITY, AND THE BASIS FOR BELIEVING THAT THE ACTIVITY RESULTED IN DISCRIMINATION AGAINST THE EMPLOYEE BY THE EMPLOYER. A COMPLAINT MAY BE FILED IN PERSON OR BY MAIL AT THE NEAREST LOCAL OFFICE OF THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA), U.S. GOVERNMENT, DEPARTMENT OF LABOR, OR WITH THE OFFICE OF THE ASSISTANT SECRETARY, OSHA, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210.

ENFORCEMENT: OSHA WILL REVIEW THE COMPLAINT TO ENSURE THAT IT MAKES AN INITIAL SHOWING OF DISCRIMINATION IF NOT, OR IF THE EMPLOYER PROVIDES CLEAR AND CONVINCING EVIDENCE THAT THERE WAS NO DISCRIMINATION, THERE WILL BE NO INVESTIGATION. IF THE REQUIRED SHOWING IS MADE, OSHA WILL NOTIFY THE EMPLOYER AND CONDUCT AN INVESTIGATION TO DETERMINE WHETHER A VIOLATION HAS OCCURRED. EITHER THE EMPLOYEE OR THE EMPLOYER MAY REQUEST A HEARING BEFORE AN ALJ.

RELIEF: IF DISCRIMINATION IS FOUND, THE EMPLOYER WILL BE REQUIRED TO PROVIDE APPROPRIATE RELIEF, INCLUDING REINSTATEMENT (EVEN FOR THE PERIOD BETWEEN THE ALJ DECISION.AND APPEAL), BACK WAGES OR COMPENSATION FOR INJURY SUFFERED FROM THE DISCRIMINATION, AND ATTORNEY'S FEES AND COSTS.

CAUTION: THE PRECEDING PROTECTIONS AND REMEDIES ARE NOT AVAILABLE TO EMPLOYEES WHO ENGAGE IN DELIBERATE VIOLATIONS OF THE ERA OR THE AEA.

FOR ADDITIONAL INFORMATION: CONTACT THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S.

GOVERNMENT, DEPARTMENT OF LABOR (LISTED IN TELEPHONE DIRECTORIES), OR SEE THE DEPARTMENT OF LABOR'S WEB SITE AT: WWW. OSHA. GOV EMPLOYERS ARE REQUIRED TO DISPLAY THIS POSTER WHERE EMPLOYEES CAN READILY SEE IT.

[FR Doc. 98-2922 Filed 2-6-98; 8A5 am)

BILUNG CODE 4610-26-P