The Department of Labor (DOL) has issued a proposed rule (pdf) that seeks to revise and restructure the agency’s rules of practice and procedure for conducting administrative hearings before the Office of Administrative Law Judges (OALJ), the “trial court” that presides over many employment-related claims filed with the DOL. According to the OALJ, the purpose of the changes is to “provide clarity through the use of consistent terminology, structure and formatting so that parties have clear direction when pursuing or defending against a claim.”
Among other reasons for updating the rules of practice and procedure, the agency explains, is the fact that they have not been substantially amended since their promulgation in 1983, and therefore do not reflect changes made to procedures governing civil litigation in federal trial courts. In addition, the types of claims brought before the OALJ have evolved over time. Initially, the OALJ presided primarily over occupational injury and illness hearings. Three decades later, it has become increasingly more common for the OALJ to hear whistleblower and other workplace retaliation claims as well as those related to workplace injuries and illnesses. Notably, in 2010 Congress signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, which, among other things, greatly expanded whistleblower protections for employees in the financial services industry. The FDA Food Safety Modernization Act signed into law last year also provides whistleblowers in the food service industry with a right to an administrative hearing. These types of claims “often involve complex fact patters and novel legal issues,” the agency contends, necessitating more structured management and oversight, as well as more sophisticated motions and discovery procedures.
To this end, the proposed changes seek in many ways to more closely mirror the Federal Rules of Civil Procedure, and address whistleblower litigation, which “typically requires more extensive discovery, case management, motion work, summary decision practice, and time in trial than many of the other types of cases heard by OALJ.”
Comments on the proposed revisions are due within 60 days of the proposal’s publication in the Federal Register, which is slated for December 4, 2012. Comments must contain the regulation identifier number (RIN) 1290-AA26, and may be submitted electronically through the federal eRulemaking portal, or sent/hand-delivered to U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW Suite 400-North, Washington, D.C. 20001-8002.