Subpart A
The Assistant Secretary will notify the respondent that a complaint was filed and will identify the complaint's allegations and the substance of the evidence supporting the complaint, with redactions as required by privacy laws. See 1983.104(a). The notice will also inform the respondent of its rights under 1983.104(b), 1983.104(f), and 1983.110(e).
The complainant and the respondent each have 20 days from receipt of the notice to submit a written statement and any affidavits or documents and to request a meeting to present their positions. See 1983.104(b).
An unredacted copy of the complaint materials will be provided to the complainant (or the complainant's legal counsel, if represented) and to the Consumer Product Safety Commission. See 1983.104 for this requirement; the respondent receives notice of the complaint and supporting evidence but those materials may be redacted as necessary under privacy laws per 1983.104(a).
Yes. The agency will provide the complainant (or the complainant's legal counsel, if represented) a copy of all respondent submissions that are responsive to the whistleblower complaint, with redactions as necessary under the Privacy Act and other confidentiality laws, and will give the complainant an opportunity to respond. See 1983.104(c).
Investigations are conducted to protect the confidentiality of any person (other than the complainant) who provides information on a confidential basis, in accordance with the agency's applicable confidentiality procedures. See 1983.104(d).
A complainant must allege facts and evidence establishing that (1) the employee engaged in protected activity, (2) the respondent knew or suspected the employee engaged in the 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 1983.104(e) and the element subparagraphs 1983.104(e)(2)(i) through 1983.104(e)(2)(iv).
The complaint must, on its face and as may be supplemented by complainant interviews, allege facts and either direct or circumstantial evidence sufficient to give rise to an inference that the respondent knew or suspected the protected activity and that the protected activity was a contributing factor in the adverse action. See 1983.104(e)(3).
Yes. Even if a complainant has made a prima facie showing, OSHA will not conduct or will discontinue an investigation if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity. See 1983.104(e)(4).
If the respondent fails to make a timely response or fails to show by clear and convincing evidence that it would have taken the same adverse action absent protected activity, the Assistant Secretary will proceed with the investigation and will take whatever steps are necessary to confirm or verify the information provided. See 1983.104(e)(5).
Timing can be significant: an adverse action that occurs shortly after protected activity can satisfy the prima facie showing by raising an inference that the protected activity was a contributing factor in the adverse action. See the example and discussion in 1983.104(e).
If there is reasonable cause to believe CPSIA was violated and preliminary reinstatement may be warranted, the Assistant Secretary will re-contact the respondent (or counsel) to disclose the substance of the relevant evidence developed during the investigation, provide redacted witness statements or summaries to protect confidential informants, give the complainant the same materials (redacted as needed), and allow the respondent to submit a written response, meet with investigators, present witness statements, and present legal and factual arguments. See 1983.104(f).
Witness statements that identify confidential informants will be redacted to protect their identities, and if redaction would reveal the informant's identity, OSHA will provide summaries of the statements instead. This protection is applied both when notifying the respondent and when providing materials under preliminary-reinstatement procedures. See 1983.104(a) and 1983.104(f).
Yes. The agency will provide the complainant (or the complainant's legal counsel, if represented) an opportunity to respond to any of the respondent's submissions that are provided during the investigation, after appropriate redaction under privacy laws. See 1983.104(c).
Yes. Within 20 days of receiving notice, both the complainant and the respondent may request a meeting with the Assistant Secretary to present their positions, evidence, affidavits, or other documentation supporting their case. See 1983.104(b).
Materials provided to the respondent or complainant will be redacted as necessary in accordance with the Privacy Act of 1974 and other applicable confidentiality laws before being disclosed, and the Assistant Secretary follows those redaction rules when sharing complaint-related materials. See 1983.104(a) and 1983.104(f).
The complainant must allege facts that give rise to an inference that the respondent knew or suspected the employee engaged in protected activity; this showing may rely on direct or circumstantial evidence and may be supplemented by interviews. See 1983.104(e)(2)(ii) and 1983.104(e)(3).
If the complainant fails to make the required prima facie showing that protected activity was a contributing factor to the adverse action, the complainant (or the complainant's legal counsel) will be notified and the investigation will not commence. See 1983.104(e)(1) and 1983.104(e)(3).
Before findings and a preliminary order under 1983.105, if reasonable cause exists for a violation and preliminary reinstatement is considered, the respondent will be notified of the evidence supporting the complainant's allegations, given redacted witness statements or summaries, and afforded an opportunity to submit a written response, meet with investigators, present witness statements supporting its position, and make legal and factual arguments as described in 1983.104(f).