Concurrent and deferred proceedings

Yes. An employee who files a complaint under section 11(c) may concurrently pursue remedies in grievance arbitration under a collective bargaining agreement or other agencies such as the NLRB because the Secretary's jurisdiction under section 11(c) is independent of other forums. See 1977.18(a)(1) and 1977.18(a).

• Practical tip: Filing with OSHA does not prevent you from also using contractual grievance steps or filing with other agencies.

Yes. The Secretary may file action in U.S. district court regardless of the pendency of other proceedings. See 1977.18(a)(1).

• Practical effect: OSHA's ability to sue is independent of parallel arbitration or NLRB actions.

OSHA recognizes a national policy favoring voluntary resolution under collective bargaining procedures and, where appropriate, will give respectful consideration to those forums when disputes related to section 11(c) complaints arise. See 1977.18(a)(2).

• Practical tip: OSHA may consider the availability and adequacy of arbitration or contractual grievance processes when deciding whether to postpone or defer its own proceedings.

Postponement may be appropriate where the complainant is actively pursuing remedies outside section 11(c) and those other proceedings are likely to address the same issues. See 1977.18(a)(3).

• Practical factors: whether the other proceedings are underway, the overlap of factual issues, and whether those forums can resolve the ultimate discrimination question.

Postponement is justified when the rights asserted in the other proceedings are substantially the same as rights under section 11(c), the other proceedings are unlikely to violate section 11(c) rights, the factual issues are substantially the same, and the other forum can decide the ultimate issue of discrimination. See 1977.18(b).

• Practical checklist: compare legal rights asserted, map overlapping facts, and confirm the other forum's authority to rule on discrimination.

OSHA will defer to another proceeding only after careful case-by-case review to ensure that (1) all factual issues were adequately addressed, (2) the proceedings were fair and regular and free of procedural infirmities, and (3) the outcome was not repugnant to the purpose and policy of the Act. See 1977.18(c).

• Practical tip: OSHA reviews the record from the other forum before deciding to defer.

No. A dismissal of other proceedings without an adjudicatory hearing will not ordinarily be treated as dispositive of an OSHA section 11(c) complaint. See 1977.18(c).

• Practical consequence: OSHA may continue its own investigation even after a dismissal in another forum.

You look for whether the other forum has authority to make binding factual findings and grant remedies that resolve whether discrimination occurred; if it can, it may be able to determine the ultimate issue. See 1977.18(b) and 1977.18(a)(1).

• Examples: a full arbitration with the power to reinstate and award back pay or a final NLRB adjudication are more likely to meet this standard than a purely procedural or interim forum.

No. OSHA recognizes and gives deference to grievance procedures but does not automatically defer; deferral depends on whether the other proceedings adequately protect section 11(c) rights and resolve the same issues. See 1977.18(a)(2) and 1977.18(c).

• Practical guidance: OSHA evaluates each case individually before deciding whether to postpone or defer.

Not automatically. OSHA may defer to an arbitration result if that proceeding fairly and adequately addressed all factual issues and the outcome is consistent with the Act, but OSHA will independently scrutinize the record before deciding to defer. See 1977.18(c).

• Practical step: provide the arbitration record to OSHA if you want OSHA to consider deferral.

"Substantially the same" means the core facts that determine whether discrimination occurred—who did what, when, where, and why—are materially identical in both proceedings so that resolution in one forum would resolve the central questions in the other. See 1977.18(b).

• Example: If both proceedings hinge on whether an employee reported a safety hazard on a certain date and the employer's stated reason for discipline, those are substantially the same factual issues.

Procedural infirmities include lack of a fair hearing, evident bias by the decision-maker, denial of meaningful opportunity to present evidence or witnesses, or other serious departures from regular adjudicatory procedures; such defects weigh against deferral. See 1977.18(c).

• Practical example: an arbitration that refused key witness testimony or did not allow cross-examination could be deemed procedurally infirm.

Postponement may be appropriate when the complainant is actively pursuing other remedies outside section 11(c) and those proceedings are likely to resolve the same issues, making it reasonable to wait for their outcome. See 1977.18(a)(3).

• Practical consideration: OSHA will weigh the benefits of waiting against the complainant's need for timely relief.

No. Section 11(c) protections remain intact and OSHA's jurisdiction is independent; parallel proceedings only affect whether OSHA will postpone or defer its own determination. See 1977.18(a) and 1977.18(c).

• Practical note: Pursuing arbitration or another agency does not eliminate your right to an OSHA investigation.

You should inform OSHA about any pending proceedings and provide details and records so OSHA can determine whether to postpone or defer; OSHA will review the information on a case-by-case basis. See 1977.18(c).

• Useful information to provide: forum name, case number, schedules, and copies of filings or decisions to date.

The Secretary of Labor (through OSHA) makes the decision on postponement or deferral after carefully scrutinizing the facts and records on a case-by-case basis. See 1977.18(c).

• Practical consequence: parties should submit relevant records for OSHA's review if they want OSHA to consider deferral.

Yes. A decision to defer depends on the fairness and adequacy of the other proceeding; if OSHA later determines the proceeding was unfair or procedurally defective, it can resume its own investigation or action. See 1977.18(c) and 1977.18(a)(1).

• Practical tip: preserve records and appeal rights in the other forum in case OSHA needs to reconsider deferral.

Possibly. If the NLRB proceeding raises substantially the same rights and factual issues as the section 11(c) complaint and is not likely to violate section 11(c) rights, OSHA may postpone its determination. See 1977.18(b) and 1977.18(a)(1).

• Practical guidance: provide the NLRB case details to OSHA so it can evaluate overlap and authority.

It means the other proceeding's result would directly conflict with the Act's protections or make a mockery of those protections—for example, an outcome that sanctions retaliation for safety reporting—so OSHA would not defer. See 1977.18(c).

• Practical example: an award that punishes a worker for protected whistleblowing could be considered repugnant to the Act.

Leaving the workplace in a manner that removes you from the conditions that the Act protects can mean your work refusal or separation is not protected, which may affect the merits of any section 11(c) complaint and the relevance of parallel proceedings. See the July 11, 1983 Letter of Interpretation and 1977.18(a).

• Practical note: OSHA looks at the facts—if you left rather than remained and gave your employer a chance to correct a hazard, that change in circumstances can affect protection and how OSHA evaluates parallel proceedings.

Not necessarily; OSHA weighs the benefits of waiting against whether the other proceedings will adequately and promptly address the same issues and protect section 11(c) rights. Long delay alone does not require postponement. See 1977.18(b) and 1977.18(c).

• Practical suggestion: provide timelines and status of other proceedings to OSHA to help its decision.

Provide a clear record of the parallel proceeding: case filings, hearing transcripts or schedules, decisions or awards, and a summary showing overlap of factual issues and remedies; OSHA will review these materials in deciding whether to postpone or defer. See 1977.18(b) and 1977.18(c).

• Practical checklist: include dates, forum authority, and whether the forum allowed full evidentiary hearings.

Limited remedies weigh against deferral because OSHA must be satisfied the other proceeding adequately dealt with all factual issues and provided appropriate relief; if remedies are insufficient, OSHA may decline to defer. See 1977.18(c).

• Practical example: if arbitration can only issue a narrow contract remedy but cannot fully remedy unlawful discrimination under section 11(c), OSHA may continue its own case.