Subpart A
Under 1980.104(a), OSHA will notify the respondent that a complaint was filed and tell them the allegations and the substance of the evidence supporting the complaint. OSHA will redact materials as necessary to comply with the Privacy Act and other confidentiality laws and will also notify the respondent of their rights under paragraphs (b) and (f) and 1980.110(e). See 1980.104(a).
Under 1980.104(b), the respondent has 20 days from receipt of the notice to submit a written statement and any affidavits or documents supporting its position and to request a meeting with OSHA to present its position. See 1980.104(b).
Under 1980.104(b), yes — the respondent may submit a written statement and supporting affidavits or documents and may also request a meeting with OSHA within the same 20-day period. See 1980.104(b).
Under 1980.104(c), OSHA will ask each party to provide other parties with copies of submissions that are relevant to the complaint; if a party does not provide them, OSHA will provide them to the other party (or the other party's counsel) at a time that allows an opportunity to respond. OSHA will redact materials as needed under the Privacy Act before sharing. See 1980.104(c).
Under 1980.104(a) and 1980.104(c), OSHA will redact materials as necessary to comply with the Privacy Act of 1974 and other confidentiality laws before providing them to parties. OSHA will only provide unredacted materials where allowed, and will otherwise provide redacted copies so privacy is protected. See 1980.104(a) and 1980.104(c).
Under 1980.104(d), OSHA will conduct investigations in a way that protects the confidentiality of any person (other than the complainant) who provides information on a confidential basis, consistent with part 70 of this title. This means OSHA will withhold identifying details of confidential informants to the extent allowed. See 1980.104(d).
Under 1980.104(e)(2), a complaint must allege facts and evidence showing: (1) the employee engaged in a protected activity; (2) the respondent knew or suspected the employee engaged in that protected activity; (3) the employee suffered an adverse action; and (4) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action. See 1980.104(e)(2).
Under 1980.104(e)(1) and 1980.104(e)(3), the complaint will be dismissed and OSHA will not begin an investigation if the complainant does not make a prima facie showing that protected activity was a contributing factor in the adverse action. OSHA will notify the complainant (or their counsel) if the required showing has not been made. See 1980.104(e)(1) and 1980.104(e)(3).
Under 1980.104(e)(3), yes — temporal proximity between the protected activity and the adverse action can be sufficient to give rise to an inference that the protected activity was a contributing factor and help satisfy the prima facie showing for investigation. OSHA uses timing (for example, adverse action occurring soon after protected activity) as one example of evidence that may meet the burden. See 1980.104(e)(3).
Under 1980.104(e)(4), yes — OSHA will not continue investigating if the respondent proves by clear and convincing evidence that it would have taken the same adverse action regardless of the complainant's protected activity. A successful clear-and-convincing defense ends further investigation despite a prima facie showing. See 1980.104(e)(4).
Under 1980.104(e)(5), if the respondent fails to make a timely response or fails to satisfy the burden of showing it would have taken the same action anyway, OSHA will proceed with the investigation to confirm or verify the respondent's information. See 1980.104(e)(5).
Under 1980.104(f), if OSHA has reasonable cause to believe a violation occurred and preliminary reinstatement may be warranted, OSHA will contact the respondent (or counsel) and give notice of the substance of the relevant evidence gathered during the investigation, including witness statements (redacted to protect confidential informants) or summaries when redaction would reveal an informant's identity. The complainant will receive the same materials provided to the respondent, with redactions as necessary. See 1980.104(f).
Under 1980.104(f), if a witness statement cannot be redacted without revealing the identity of a confidential informant, OSHA will provide summaries of the statement's contents instead of the unredacted statement so the informant's identity remains protected. See 1980.104(f).
Under 1980.104(c) and the paragraph stating disclosure to complainant, OSHA will provide an unredacted copy of the same materials to the complainant (or the complainant's counsel) and to the Securities and Exchange Commission, while redacting materials to the respondent only as necessary to comply with privacy and confidentiality laws. See 1980.104(b) and 1980.104(c).
Under 1980.104(a), OSHA will notify the respondent of its rights under paragraphs (b) (the 20-day response and meeting request) and (f) (notice regarding preliminary reinstatement evidence) of 1980.104, and of 1980.110(e). This informs the respondent about response options and other procedural rights. See 1980.104(a).
Under 1980.104(e)(2)(ii), "knew or suspected" means the complaint must allege facts showing the respondent actually knew or had reason to suspect the employee engaged in protected activity; this is part of the prima facie showing required to avoid dismissal and start an investigation. Concrete allegations or evidence indicating the respondent was aware or had suspicion are needed. See 1980.104(e)(2)(ii).
Under 1980.104(e)(2)(iii), "suffered an adverse action" means the complaint must allege that the employee experienced an employment-related action (for example, termination, demotion, suspension, or other negative personnel action) that is the subject of the complaint; alleging the specific adverse action is required to make the prima facie showing. See 1980.104(e)(2)(iii).
Under 1980.104(c), yes — OSHA will provide each party an opportunity to respond to the other party's submissions after providing copies (or redacted copies) of those submissions so each side can address evidence submitted by the other. See 1980.104(c).
Under 1980.104(f), the complainant will receive a copy of the materials OSHA provides to the respondent when OSHA is considering preliminary reinstatement; OSHA will redact these materials as necessary under the Privacy Act before giving them to the complainant. See 1980.104(f).