Investigation procedures for complaints

OSHA must notify the respondent that a complaint was filed and give the respondent the allegations and the substance of the evidence supporting the complaint, along with notice of certain rights. OSHA will inform the respondent of the filing of the complaint, the allegations, and the substance of supporting evidence (redacted if necessary under confidentiality laws), and will notify the respondent of its rights under 1985.104(b), 1985.104(f), and 1985.110(e). OSHA will provide unredacted copies of the complaint materials to the complainant (or complainant's counsel) and to the Bureau while redacting materials when required by the Privacy Act and other confidentiality laws, as described in 1985.104(a).

Yes — OSHA may redact materials to protect privacy and comply with confidentiality laws. OSHA will redact information in complaint materials when necessary to be consistent with the Privacy Act of 1974 and other applicable confidentiality laws, while still notifying the respondent of the allegations and the substance of the evidence, as provided in 1985.104(a).

Each party has 20 days to submit written statements, supporting affidavits or documents, and to request a meeting. Within 20 days of receiving the notice of filing, the respondent and the complainant may each submit a written statement and any affidavits or documents that support their positions and may each request a meeting with OSHA to present their position, as required by 1985.104(b).

Yes — OSHA generally shares submissions or provides them to the other party with appropriate redactions and an opportunity to respond. During the investigation, OSHA will ask parties to provide copies of submissions that are pertinent to the complaint to the other parties; if a party does not do so, OSHA will provide those submissions (or counsel copies) at a time that allows the other party an opportunity to respond. Before sharing, OSHA will redact information as needed under the Privacy Act and other confidentiality laws, and will give each party an opportunity to respond to the other party's submissions, as set out in 1985.104(c).

OSHA protects confidential informants by conducting investigations consistent with the confidentiality rules in this part. Investigations are conducted in a manner that protects the confidentiality of any person (other than the complainant) who provides information on a confidential basis, in accordance with 1985.104(d).

The complainant must make a prima facie showing that protected activity was a contributing factor in the adverse action. To do this, the complaint (supplemented by interviews if needed) must allege facts and evidence showing: (1) the employee engaged in a 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 allow an inference that the protected activity was a contributing factor in the adverse action. These requirements are described in 1985.104(e)(1)–(3).

The complaint must allege facts and either direct or circumstantial evidence sufficient to raise an inference that the respondent knew or suspected the protected activity and that the activity contributed to the adverse action. For purposes of deciding whether to investigate, the required burden is met if the complaint on its face, supplemented as appropriate by interviews of the complainant, alleges facts and either direct or circumstantial evidence to give rise to that inference, as explained in 1985.104(e)(3).

OSHA will not continue the investigation if the respondent proves by clear and convincing evidence it would have taken the same adverse action absent the protected activity. Even if the complainant has made the prima facie showing, OSHA will discontinue further investigation when the respondent demonstrates by clear and convincing evidence that the adverse action would have occurred for legitimate reasons unrelated to the protected activity, as described in 1985.104(e)(4).

OSHA will proceed with the investigation if the respondent fails to respond timely or fails to meet its burden. If the respondent does not make a timely response or cannot satisfy the respondent burden described in 1985.104(e)(4), OSHA will continue the investigation whenever necessary or appropriate to confirm or verify information provided by the respondent, as stated in 1985.104(e)(5).

Timing can help create an inference that protected activity contributed to an adverse action when the action occurs close in time or at the first opportunity. A prima facie showing may be satisfied, for example, if the adverse action happened within a short temporal proximity to the protected activity or occurred at the first opportunity available to the respondent, which can raise the inference that the protected activity was a contributing factor, as noted in 1985.104(e)(2)(iv).

OSHA may seek preliminary reinstatement when it has reasonable cause to believe a violation occurred and that reinstatement is warranted, and OSHA will notify the respondent of the evidence and give an opportunity to respond. Prior to issuing findings and a preliminary order under 1985.105, if OSHA has reasonable cause based on the investigation to believe the respondent violated the CFPA and preliminary reinstatement is warranted, OSHA will contact the respondent (or counsel) to disclose the substance of the relevant evidence (with redactions or summaries to protect confidential informants), provide the same materials to the complainant, and give the respondent an opportunity to submit a written response, meet with investigators, present witness statements, and present legal and factual arguments as described in 1985.104(f).

OSHA will redact witness statements to protect confidential informants or provide summaries when redaction would reveal identities. Specifically, witness statements will be redacted to protect the identity of confidential informants when statements were given in confidence; if redaction cannot be done without revealing the informant, OSHA will provide summaries of the statements to the respondent, as explained in 1985.104(f).

Each party has the chance to submit evidence and to respond to the other party's submissions, and OSHA will ensure the other party receives pertinent submissions or provides them with time to respond. Within 20 days of notice, each party may submit written statements, affidavits, and documents and may request a meeting to present its position per 1985.104(b). During the investigation OSHA will request that parties exchange submissions or OSHA will provide them (with necessary redactions) at a time that permits a response, and OSHA will give each party an opportunity to respond to the other party’s submissions as required by 1985.104(c).

The complaint will be dismissed if the complainant fails to make the prima facie showing that protected activity was a contributing factor. If the complaint (even after interviews and supplementation) does not allege facts or evidence that give rise to an inference that the respondent knew or suspected the protected activity and that the activity contributed to the adverse action, OSHA will notify the complainant (or complainant’s counsel) that the required showing has not been made and the investigation will not commence, as set out in 1985.104(e).

OSHA provides unredacted complaint materials to the complainant (or counsel) and to the Bureau while redacting materials provided to the respondent when necessary under confidentiality laws. Specifically, upon receipt of a complaint OSHA will provide unredacted copies of the complaint materials to the complainant (or the complainant’s counsel) and to the Bureau, but will redact materials provided to the respondent as necessary to comply with the Privacy Act and other confidentiality laws, as stated in 1985.104(a).