Gavin Howe
Administrative law judges (ALJs) are Article I judges under the U.S. Constitution and are considered part of the executive branch. They hear cases on a wide range of topics, including whistleblower complaints, transportation and environmental violations, workplace discrimination, and minimum wage disputes. ALJs do not have the same powers as trial judges, as they cannot exercise control over life, liberty, and property. However, they do have similar powers, such as the ability to issue subpoenas and rule on evidence. ALJs are appointed based on scores achieved in a comprehensive testing procedure, and their decisions can be appealed to federal judicial courts. For example, in Lucia v. SEC (2018), the U.S. Supreme Court ruled that ALJs are officers of the United States, subject to the Appointments Clause, but not requiring Senate confirmation.
| Characteristics | Values |
|---|---|
| Powers | Comparable to those of a trial judge, including issuing subpoenas, ruling on evidence, regulating hearings, and making or recommending decisions |
| Appointment | Determined by scores on a comprehensive test, including a four-hour written exam and an oral exam |
| Jurisdiction | Federal or state, with rules and nature varying by state |
| Independence | Organizationally independent from agencies |
| Agencies | Social Security Administration, Environmental Protection Agency, U.S. Postal Service, National Labor Relations Board, Federal Energy Regulatory Commission |
| Cases | Unfair labor practices, non-complaint post-election representation cases, whistleblower complaints, minimum wage disputes, civil fraud, etc. |
| Appeals | Decisions can be appealed to the Board or federal judicial court, but each agency has its own appellate process that must be followed first |
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What You'll Learn
Whistleblower complaints
The process of a whistleblower case is similar to that of a typical lawsuit. There is a pre-hearing period where parties conduct discovery, file motions with the ALJ, and set the hearing schedule. During the hearing, witnesses testify and evidence is submitted, forming the record upon which the case is decided. ALJ hearings are de novo, meaning the ALJ independently evaluates the evidence to determine if a whistleblower law has been violated and decides on the appropriate relief. These hearings are open to the public, and decisions are published on the Department of Labor (DOL) website.
In the United States, whistleblower rights and protections are in place to safeguard individuals who make protected disclosures. Protected disclosures are defined as instances where an individual reports suspected or actual violations of laws, rules, or regulations, or other types of misconduct. If a whistleblower believes they have faced retaliation for their disclosure, they can file a complaint with the relevant authority. For example, a DOJ employee can submit a retaliation complaint to the Office of Special Counsel (OSC) or the Office of Inspector General (OIG) Hotline. The OIG's Whistleblower Protection Coordinator is responsible for educating employees about their rights, ensuring prompt review of complaints, and coordinating with relevant agencies.
Whistleblower cases can be complex, and it is advisable for individuals to seek legal representation. Parties in whistleblower cases frequently have attorneys, and the law in this area can be intricate. While it is not mandatory to have legal representation, doing so can improve an individual's chances of successfully navigating the legal process.
An example of a whistleblower case involving an ALJ is Onysko v. ARB, where the plaintiff asserted that the ALJ improperly admitted OSHA findings as evidence against their whistleblower claim. The court, however, found no merit to this assertion, stating that the ARB only recounted the procedural history of the action. Additionally, the court ruled that the plaintiff's argument regarding the denial of certain discovery requests was forfeited due to a lack of specificity in challenging the ALJ's ruling.
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Workplace discrimination
Administrative law judges (ALJs) hear official disputes involving administrative law issues in the Federal government. They are considered part of the executive branch and are appointed by the heads of executive agencies. ALJs are not the same as administrative judges, who can only participate in unofficial disputes of executive agencies.
An example of an Administrative Law Judge case involving workplace discrimination could be a complaint issued by a Regional Director in an unfair labor practice case. After a complaint is issued, an NLRB Administrative Law Judge hears the case and issues a decision and recommended order, which can then be appealed.
In this scenario, let's say a group of employees at a company have filed a complaint alleging age discrimination in hiring practices. They claim that the company has a pattern of not hiring older workers and favoring younger candidates, which is a form of age discrimination prohibited by law. The Regional Director reviews the complaint and determines that there is sufficient evidence to proceed with an official dispute.
The case is then assigned to an Administrative Law Judge, who conducts a hearing to review the facts and evidence presented by both the employees and the company. The ALJ will examine the company's hiring data, policies, and practices, as well as testimonies from both parties. During the hearing, the ALJ will also administer oaths, issue subpoenas if necessary, and ensure a fair and neutral environment for both sides.
After careful consideration of all the information, the Administrative Law Judge will issue a ruling. The ruling will include findings of fact and conclusions of law, determining whether the company engaged in unlawful age discrimination. If the judge rules against the company, they may order remedial actions, such as changing hiring policies, providing back pay to affected employees, or offering employment to previously rejected candidates.
This is just one example of how an Administrative Law Judge case can address workplace discrimination. The specific process and outcome will vary depending on the nature of the discrimination, the evidence presented, and the applicable laws and regulations.
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Child labor violations
Administrative Law Judges (ALJs) hear and decide on cases arising from over 80 labour-related statutes, including child labour violations. Child labour laws are in place to protect minors and ensure that young workers have positive experiences without jeopardising their well-being or education.
In the United States, the Fair Labor Standards Act (FLSA) provides regulations on child labour. Employers must keep records of the dates of birth of employees under the age of 19, their daily start and finish times, their daily and weekly hours, and their occupations. The FLSA also states that employers with employees subject to the minimum wage provisions must post a notice explaining these provisions. The FLSA provides that an employer with an officially-issued employment or age certificate showing that the minor meets the minimum age requirements is not liable for violating child labour provisions, even if that documentation is later proven to be incorrect.
Employees of firms that do not meet the $500,000 annual dollar volume test may be subject to the FLSA's child labour provisions in any workweek in which they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods. The Act covers the following employers regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and Federal, state, and local government agencies. While 16 is the minimum age for most non-farm work, minors aged 14 and 15 may work outside of school hours in certain occupations under certain conditions.
Violations of the child labour provisions can result in civil monetary penalties for employers. Employers are subject to a penalty of up to $11,000 per worker for each violation. For violations occurring after May 21, 2008, that cause the death or serious injury of a minor employee, employers may be subject to a penalty of $50,000 per violation, which may be doubled to $100,000 for willful or repeated violations. In the fiscal year 2023, the Wage and Hour Division found child labour violations in more than 950 investigations, resulting in over $8 million in penalties for employers. For a second conviction of a willful violation, the Act provides for a fine of up to $10,000 and/or imprisonment for up to six months.
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Powers and jurisdiction
In the United States, the role of an administrative law judge is deemed "functionally comparable" to that of an Article III judge by the Supreme Court. However, as Article I judges, ALJs do not exercise full judicial power and are not part of the judicial branch. Their powers include issuing subpoenas, ruling on evidence, regulating hearings, and making or recommending decisions. ALJs hear cases on a wide range of topics, from whistleblower complaints and transportation violations to minimum wage disputes and child labour violations.
The powers and jurisdiction of ALJs can vary depending on the agency and state. For example, proceedings before the Federal Energy Regulatory Commission may involve complex multi-party adjudication, while those before the Social Security Administration tend to be more simplified and informal. The Social Security Administration (SSA) is the federal agency with the largest number of ALJs, with over 1,400 judges adjudicating over 700,000 cases annually.
ALJs are generally appointed based on scores achieved in a comprehensive testing procedure, including a written and oral examination, as outlined in the Administrative Procedure Act of 1946 (APA). The APA also guarantees the decisional independence of ALJs. While ALJ decisions can be appealed to federal judicial courts, each agency has its own appellate processes that must be followed first.
The constitutionality of ALJs has been challenged in judicial branch courts, with cases such as Lucia v. SEC (2018) and Jarkesy raising questions about the use of ALJ fact-finding and its potential violation of the Seventh Amendment. However, at least one court has ruled in support of the constitutionality of the National Labor Relations Board's use of ALJs.
In executing their duties, ALJs are advised by legally independent legal advisors, and their decisions are published in the Federal Register. ALJs maintain official adjudicatory records and are responsible for their integrity during the review process. While ALJs do not have the power to offer advisory opinions or make policies, they play a crucial role in hearing and deciding official disputes for their respective agencies.
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Appointment and confirmation
In the United States, federal administrative law judges (ALJs) are appointed based on scores achieved in a comprehensive testing procedure. This includes a four-hour written examination and an oral examination before a panel that includes representatives from the Office of Personnel Management and the American Bar Association. The Administrative Procedure Act of 1946 (APA) outlines this process, which aims to ensure the independence of ALJs.
While ALJs are considered part of the executive branch, they do not hold the same power as Article III judges. They cannot exercise full judicial power over life, liberty, and property, and they are not involved in policy or rule-making. Instead, ALJs function similarly to trial judges, hearing cases and issuing decisions or recommendations. Their rulings can be appealed to higher courts or reviewed by the agencies they represent.
The appointment of ALJs has been the subject of legal challenges, particularly regarding their constitutionality. In Lucia v. SEC (2018), the U.S. Supreme Court ruled that ALJs are officers of the United States and are thus subject to the Appointments Clause of the Constitution. This means that their appointment must be made by the President or a delegated officer. However, ALJs do not require Senate confirmation, as they are not considered part of the judicial branch.
ALJs are appointed to serve in various agencies, including the Social Security Administration (SSA), which had over 1,400 ALJs in 2013, the Environmental Protection Agency (EPA), and the U.S. Postal Service. They handle a diverse range of cases, from labour disputes to regulatory violations, and their decisions can have significant implications for individuals and organisations.
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Frequently asked questions
An Administrative Law Judge (ALJ) is an official who hears and decides cases relating to diverse subjects, including labor disputes, whistleblower complaints, transportation violations, and environmental safety. ALJs function similarly to trial judges and can issue subpoenas and rule on evidence.
An Administrative Law Judge might hear a dispute regarding whistleblower complaints involving corporate fraud and violations of environmental safety statutes.
Yes, the determinations of an ALJ can be appealed to a federal judicial court. However, each agency has its own appellate processes that must be followed before accessing federal courts.
