The US Department of Labor (DOL) recently published a new rule to give the Secretary of Labor discretion to review Administrative Review Board (ARB) decisions. In 1996, the Secretary of Labor established the ARB while simultaneously granting it the authority and assigning it the responsibility to issue final agency decisions—after review or on appeal—of matters arising under various worker protection laws, including the many whistleblower protection laws administered by the DOL. Under the new rule, the Secretary now has the ability to review the ARB’s decisions under these same laws.

What the Rule Will and Will Not Change

The rule modifies the regulations promulgated under certain worker protection laws administrated by the DOL, including 29 CFR Part 24, “Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provisions of Six Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as Amended.” The rule creates “discretionary secretarial review over the decisions of the ARB” and is based on the Secretary’s “power to delegate his authority to appropriately supervise the adjudicatory process within the Department.” Under the rule, the Secretary may now exercise “that same authority to assert his decision-making prerogatives duly assigned to him by Congress by modifying the terms on which the members of the ARB . . . exercise his delegated authority.”

In addition, the rule amends provisions governing the timing of petitions for review to the ARB, requiring that they be filed within 14 days of the date of the decision of the Administrative Law Judge and that the ARB render final decisions within 120 days of the conclusion of the hearing. The DOL intends this to “eliminate potential ambiguity or confusion over the distinction between when the ARB is required to issue a decision and when such decision becomes the final action of the Department pursuant to the Secretary’s Order [01-2020].” The rule does not, however, change the way the DOL processes claims.

According to the DOL, the only practical difference created by the rule will be the Secretary’s option to review an ARB decision where his/her “involvement is necessary and appropriate,” although the rule does not provide criteria for determining such situations. Rather, the Secretary will rely on the ARB for help identifying cases for review. The DOL also indicated that it does not anticipate that the secretarial review will be exercised often and that it will likely only be for “matters of significant importance.” Notably, the DOL did not articulate any standards the Secretary will use when deciding whether to exercise review authority in a given case, only that the Secretary will “adhere to all relevant sources of law.”

Comments on the Rulemaking

The DOL discussed various comments it received during the rulemaking process. Specifically, commenters expressed concern about the extra time it would take to process decisions the Secretary reviewed. In response, the DOL asserted that “the ARB currently takes on average nineteen months to process a case,” making “the up-to approximately two months’ more added by [the new rule] to allow the Secretary time to determine whether to undertake review . . . not unreasonable.” The DOL also stated that it expects the rule to increase efficiency and consistency within the Department. The DOL did not provide examples of the types of inconsistencies or inefficiencies the rule might address.

Commenters also expressed due process concerns regarding the new rule, most notably the lack of any timeframe for the Secretary to review an ARB decision. In response, the DOL said it “does not believe that further protections are necessary” because the rule already contains “fairness safeguards.” As an example of such safeguards, the DOL asserted that “no individual involved in the investigation or prosecution of a case will advise the Secretary on the exercise of review with respect to that case or a case involving a common nucleus of operative fact.” The rule takes effect on June 19, 2020, and the Secretary will not exercise his review authority until 30 days after the effective date (July 19, 2020).

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