Investigation procedures for complaints

Under 1984.104(a) OSHA will notify the respondent that a complaint has been filed, the allegations in the complaint, the substance of the evidence supporting the complaint, and the respondent's rights under paragraph (b), paragraph (f), and 1984.110(e).

• OSHA may redact materials if required by the Privacy Act of 1974 or other confidentiality laws before providing them to the respondent. (1984.104(a))

Under 1984 OSHA will provide an unredacted copy of complaint materials to the complainant (or the complainant's legal counsel if represented) and to the appropriate federal agency that administers the relevant ACA provisions (IRS, HHS, or EBSA).

• OSHA may still redact materials when providing them to the respondent consistent with confidentiality laws, but complainants and the listed federal agencies get unredacted copies. (1984.104)

Under 1984.104(b) each party — the respondent and the complainant — has 20 days from receipt of the notice to submit a written statement with affidavits or documents and to request a meeting with OSHA.

• Both parties may use this 20-day period to present evidence or ask to meet with OSHA to explain their positions. (1984.104(b))

Under 1984.104(c) OSHA will request that each party provide other parties with copies of submissions that are relevant to the complaint, and if a party does not, OSHA will provide those submissions to the other party at a time that allows a response.

• OSHA will redact materials if necessary before sharing and will give each party an opportunity to respond to the other party's submissions. (1984.104(c))

Under 1984.104(d) OSHA protects the confidentiality of any person who provides information on a confidential basis (other than the complainant) in accordance with part 70 of this title.

• This means OSHA will handle confidential informant identities and related details per the procedures in part 70. (1984.104(d))

Under 1984.104(e)(1) a complaint will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the alleged adverse action.

• If the complaint (with any necessary interviews) does not allege facts and evidence sufficient to make that prima facie showing, OSHA will notify the complainant (or the complainant's counsel) and will not begin an investigation. (1984.104(e)(1))

Under 1984.104(e)(2) the 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 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.

• Each element is listed in 1984.104(e)(2)(i)–(iv).

Under 1984.104(e)(3) a complainant meets the prima facie burden if the complaint (supplemented by interviews as needed) alleges facts and either direct or circumstantial evidence that give rise to an inference the respondent knew or suspected the protected activity and that the activity was a contributing factor in the adverse action.

• OSH A gives the example that a close temporal proximity between the protected activity and the adverse action (e.g., the adverse action occurred shortly after the protected activity or at the first opportunity) can satisfy this showing. (1984.104(e)(3))

Under 1984.104(e)(4) OSHA will not continue investigating if the respondent proves by clear and convincing evidence that it would have taken the same adverse action absent the complainant's protected activity.

• This is a respondent-focused defense that stops further investigation if proven by the higher "clear and convincing" standard. (1984.104(e)(4))

Under 1984.104(e)(5) if the respondent fails to make a timely response or fails to satisfy the clear-and-convincing burden, OSHA will proceed with the investigation.

• OSHA will investigate whenever it is necessary or appropriate to confirm or verify information provided by the respondent. (1984.104(e)(5))

Under 1984.104(f) if OSHA has reasonable cause to believe there was a violation and that preliminary reinstatement is warranted, OSHA will notify the respondent of the substance of the relevant evidence developed during the investigation and will give the respondent an opportunity to respond.

• The respondent will be allowed to submit a written response, meet with the investigator, present witness statements and legal/factual arguments, and must present this evidence within 10 business days of OSHA's notification (or a later date if the parties agree). (1984.104(f))

Under 1984 OSHA will redact materials when providing them to parties if necessary consistent with the Privacy Act of 1974 (5 U.S.C. 552a) and other applicable confidentiality laws.

• Redaction can apply when sharing allegations or investigative materials to protect privacy and legal confidentiality requirements. (1984.104(a), 1984.104(f))

Under 1984.104(c) OSHA will request that each party provide other parties with copies of submissions pertinent to the complaint, and if a party does not provide them, OSHA will provide the submissions to the other party so they have an opportunity to respond.

• This ensures fairness by allowing each party to see and respond to evidence relied on in the investigation. (1984.104(c))

Under 1984 OSHA will provide the complainant (or the complainant's legal counsel) a copy of the materials that OSHA provides to the respondent under 1984.104(f), subject to redaction where necessary to protect confidential informants and privacy law requirements.

• When witness statements cannot be redacted without revealing confidential informants, OSHA will provide summaries instead. (1984.104(f))

Under 1984.104(e)(3) yes — a complaint can meet the prima facie showing if it alleges facts that, for example, show the adverse action occurred shortly after the protected activity or at the first opportunity, creating an inference that the protected activity was a contributing factor.

• OSHA uses timing as an example of circumstantial evidence that can give rise to an inference required for investigation. (1984.104(e)(3))

Under 1984.104(f) the respondent must present its written response, witness statements, and legal/factual arguments within 10 business days of OSHA's notification, or at a later time if OSHA and the respondent agree for good cause.

• Failure to present evidence within this period may affect OSHA's decision about preliminary reinstatement. (1984.104(f))

Under 1984.104(b) yes — within 20 days of receiving notice of the complaint, both the complainant and the respondent may submit written statements and any affidavits or documents supporting their positions.

• They may also request a meeting with OSHA within that same 20-day period. (1984.104(b))

Under 1984.104(c) if a party does not provide its submissions to the other party, OSHA will provide those submissions (or counsel) to the other party at a time that allows the other party to respond.

• OSHA may redact materials as needed before sharing them to protect privacy or confidentiality. (1984.104(c))

Under 1984.104(d) the complainant is not treated as a confidential informant for purposes of confidentiality protections — OSHA specifically protects the confidentiality of persons who provide information on a confidential basis other than the complainant.

• In other words, complainants do not receive the same confidentiality protections reserved for other confidential informants under part 70. (1984.104(d))

Under 1984.104(f) OSHA will redact witness statements to protect the identity of confidential informants; if statements cannot be redacted without revealing a confidential informant's identity, OSHA will provide summaries of their contents instead.

• Complainants also receive the materials that OSHA provides to respondents, subject to redaction or summaries as needed to preserve confidentiality. (1984.104(f))