Investigation procedures for complaints

OSHA will notify the respondent of the filing, the allegations, and the substance of the evidence supporting the complaint, with redactions as required by confidentiality laws. See 1982.104(a).

• OSHA will also inform the respondent of its rights under 1982.104(b), 1982.104(f), and 1982.110(e).
• OSHA will provide an unredacted copy of those materials to the complainant (or the complainant’s counsel) and to the appropriate Federal agency (FRA, FTA, or TSA). Redactions are applied only as needed under the Privacy Act of 1974 and other confidentiality laws.

The respondent has 20 days from receipt of OSHA’s notice to submit a written statement, supporting affidavits or documents, and to request a meeting to present its position. See 1982.104(b).

• The 20-day period runs from the date the respondent receives OSHA’s notice under 1982.104(a).
• Use the 20 days to gather and submit documentary evidence or to ask for the meeting in writing.

Yes; OSHA will request that each party provide the other parties with copies of submissions relevant to the complaint, or OSHA will provide those submissions to the other party if a party does not do so. See 1982.104(c).

• OSHA will provide the materials at a time that allows the other party an opportunity to respond.
• OSHA will redact submissions as necessary to comply with the Privacy Act and other confidentiality laws before sharing them.

OSHA conducts investigations in a way that protects the confidentiality of any person who gives information on a confidential basis, consistent with part 70 of this title. See 1982.104(d).

• Confidential informants (other than the complainant) are protected from disclosure of their identities.
• Investigators will redact or otherwise handle information to preserve confidentiality in line with the regulations referenced in the section.

A complainant must make a prima facie showing that protected activity was a contributing factor in the alleged adverse action by alleging facts and either direct or circumstantial evidence supporting that claim. See 1982.104(e) and 1982.104(e)(3).

• The complaint should allege that the employee engaged in protected activity (or was perceived to do so), the respondent knew or suspected that activity, the employee suffered an adverse action, and the facts raise an inference that the protected activity was a contributing factor see 1982.104(e)(2).
• A complaint that on its face (plus interviews as needed) alleges these facts will normally be enough to begin an investigation.

Timing and circumstantial connections—such as an adverse action occurring shortly after protected activity or at the first opportunity—can give rise to the inference needed for a prima facie showing. See 1982.104(e)(3).

• Direct evidence is not required; close temporal proximity or actions taken at the first chance can support the required inference.
• Include dates, witnesses, or other factual details in the complaint so OSHA can assess whether the prima facie burden is met.

Yes; even if a complainant makes a prima facie showing, OSHA will not continue the investigation if the respondent proves by clear and convincing evidence that it would have taken the same adverse action absent the protected activity. See 1982.104(e)(4).

• This is a burden-shifting rule: after the complainant meets the prima facie burden, the respondent must show with clear and convincing evidence that the outcome would have been the same.
• Clear and convincing evidence is a high standard—documented legitimate reasons and contemporaneous records are important.

If the respondent fails to make a timely response or cannot satisfy the burden under 1982.104(e)(4), OSHA will proceed with the investigation. See 1982.104(e)(5).

• OSHA continues the investigation when necessary to confirm or verify information from either side.
• Failure to respond can result in OSHA relying on the complainant’s evidence and proceeding toward findings without the respondent’s input.

OSHA will contact the respondent prior to issuing findings and a preliminary order if it has reasonable cause to believe a violation occurred and that preliminary reinstatement may be warranted, and it will give notice of the relevant evidence supporting the complainant’s allegations. See 1982.104(f).

• The contact includes the substance of witness statements and other evidence developed during the investigation, redacted as needed to protect confidential informants.
• The respondent receives a chance to respond before OSHA issues findings or a preliminary order.

OSHA will provide witness statements but will redact them to protect the identity of confidential informants; if redaction would reveal an informant, OSHA will provide summaries instead. See 1982.104(f).

• The complainant also receives a copy of the materials that OSHA gives to the respondent.
• All redactions will be consistent with the Privacy Act of 1974 and other applicable confidentiality laws.

The respondent must present its written response, witness statements, and other evidence within 10 business days of OSHA’s notification, or as soon thereafter as OSHA and the respondent can agree for the interests of justice. See 1982.104(f).

• That 10-business-day period is the standard timeframe for reply; if more time is needed, the respondent should promptly request an extension and explain why.

The complainant (or the complainant’s legal counsel) and the appropriate Federal agency (the Federal Railroad Administration, Federal Transit Administration, or Transportation Security Administration as appropriate) receive an unredacted copy of the complaint materials. See 1982.104(a).

• OSHA will redact materials sent to the respondent only when required by the Privacy Act or other confidentiality laws.
• The unredacted copy given to the complainant ensures the complainant and its counsel have full access to the allegations and supporting material that OSHA received.

Yes; the respondent may submit a written statement along with any affidavits or documents that substantiate its position within the 20-day period. See 1982.104(b).

• Include sworn affidavits or contemporaneous documents to strengthen the respondent’s explanation for the adverse action.
• Submissions received within the 20 days will be considered in determining whether to investigate and in the investigation itself if OSHA proceeds.

OSHA will provide submissions (or copies) to the other party at a time that permits that party an opportunity to respond, and OSHA will also give each party an opportunity to reply to the other party’s submissions. See 1982.104(c).

• This process ensures that both sides can address new evidence or arguments before OSHA reaches findings.
• Redactions for confidentiality will be applied before materials are shared.

Circumstances that raise an inference include timing (adverse action shortly after protected activity), action taken at the first opportunity, or other facts linking the protected activity to the adverse action; such facts meet the requirement that the protected activity was a contributing factor. See 1982.104(e)(2)(iv) and 1982.104(e)(3).

• Provide dates, sequence of events, communications, or witness names where possible to support the inference.
• Both direct evidence and circumstantial evidence can satisfy this element when they together point to retaliation.

OSHA will redact materials it provides to a party when necessary to comply with the Privacy Act of 1974 and other confidentiality laws, but will provide unredacted materials to the complainant and appropriate Federal agencies. See 1982.104(a) and 1982.104(f).

• Redactions are applied to protect personal information and the identity of confidential informants consistent with legal requirements.
• If a statement cannot be redacted without revealing a confidential informant, OSHA will provide a summary of that statement instead.

If the complainant fails to make the required prima facie showing, OSHA will notify the complainant (or the complainant’s counsel) and will not commence an investigation. See 1982.104(e).

• Notice of dismissal will explain that the required showing was not met.
• The complainant may be able to supplement the complaint with additional facts during OSHA’s intake or interview process prior to a final determination.

OSHA provides an unredacted copy of the complaint materials to the Federal Railroad Administration, Federal Transit Administration, or the Transportation Security Administration, as appropriate, to ensure the relevant Federal oversight agency is informed. See 1982.104(a).

• These agencies may have interests or authorities related to NTSSA or FRSA matters and therefore receive the unredacted materials.
• The complainant (or complainant’s counsel) also receives the unredacted materials for transparency.

OSHA will redact witness statements to protect the identity of confidential informants; if redaction would reveal the identity, OSHA will provide summaries of the statements instead. See 1982.104(f).

• The goal is to balance the respondent’s right to see the evidence against the need to protect informants’ identities.
• All redactions are made consistent with the Privacy Act and other applicable confidentiality laws.

OSHA tells the respondent about its rights to submit a written statement and supporting evidence, to request a meeting under 1982.104(b), and to receive notice of evidence and respond under 1982.104(f) and 1982.110(e).

• This notification ensures the respondent knows how to participate and protect its interests during the investigation.
• The respondent can present documents, affidavits, witness statements, and legal arguments within the prescribed timeframes.