Investigation procedures for complaints

OSHA notifies the respondent that a complaint has been filed, the allegations and the substance of the evidence supporting the complaint (redacted if necessary), and the respondent's investigation rights. Under 1987.104(a), OSHA will:

• Notify the respondent of the filing, the allegations, and the substance of supporting evidence (redacting material as required by the Privacy Act and other confidentiality laws).
• Inform the respondent of its rights under 1987.104(b) and 1987.104(f) and of 1987.110(e).
• Provide an unredacted copy of the same materials to the complainant (or complainant's counsel) and to the FDA, as required in the rule.

Each party has 20 days from receiving the notice to submit written statements and supporting documents to OSHA. The rule at 1987.104(b) gives both the respondent and the complainant 20 days to provide a written statement and any affidavits or documents that substantiate their positions.

Yes — either party may request a meeting with OSHA within the same 20-day period after notice of the complaint. The text of 1987.104(b) allows the respondent and the complainant to request a meeting to present their positions during the 20-day response window.

Yes — OSHA will request that each party provide copies of submissions to the other party, and if a party does not, OSHA will provide them (redacted if necessary) so the other party can respond. Specifically, 1987.104(c) requires OSHA to either ask each party to share relevant submissions or to deliver those submissions to the other party (or counsel), with redaction as needed under the Privacy Act and other confidentiality laws, and to give each party an opportunity to respond.

OSHA conducts investigations in a way that protects the confidentiality of any person who provides information on a confidential basis (other than the complainant), consistent with part 70 of this title. The protection requirement is stated in 1987.104(d), which directs investigators to safeguard confidential sources during the investigation.

A complaint must make a prima facie showing that protected activity was a contributing factor in the alleged adverse action by alleging facts that support four elements: protected activity, the employer's knowledge or suspicion of that activity, an adverse action, and circumstances raising the inference that protected activity contributed to the adverse action. The elements and the prima facie standard are set out in 1987.104(e)(1)–(3).

• The complaint must allege the employee engaged in protected activity (1987.104(e)(2)(i)).
• It must allege the respondent knew or suspected the employee engaged in the protected activity (1987.104(e)(2)(ii)).
• It must allege the employee suffered an adverse action (1987.104(e)(2)(iii)).
• It must allege facts that give rise to an inference that protected activity was a contributing factor (1987.104(e)(2)(iv)).

Yes — a respondent can stop further investigation by proving with clear and convincing evidence that it would have taken the same adverse action even without the complainant's protected activity. The rule explains this defense at 1987.104(e)(4), which requires a showing by clear and convincing evidence to avoid further investigation despite a prima facie showing by the complainant.

OSHA will proceed with the investigation if the respondent does not respond on time or does not satisfy the burden of proving it would have taken the same action absent protected activity. That outcome is stated in 1987.104(e)(5), which directs OSHA to continue the investigation whenever necessary to confirm or verify information provided by the respondent.

Temporal proximity can help establish a prima facie showing when the adverse action occurred close in time to the protected activity or occurred at the first opportunity, creating an inference that the protected activity contributed to the adverse action. The rule gives this example in 1987.104(e)(4) to illustrate one way the complainant may meet the required showing.

If OSHA has reasonable cause to believe the respondent violated FSMA and preliminary reinstatement is warranted, OSHA will notify the respondent of the substance of the relevant evidence and give the respondent an opportunity to respond and present evidence before issuing findings and a preliminary order. The procedure is described in 1987.104(f):

• OSHA will provide the substance of the evidence supporting the complainant's allegations, with redactions as needed to protect confidential informants.
• The respondent will be allowed to submit a written response, meet with investigators, present witness statements and legal and factual arguments.

OSHA will redact witness statements to protect confidential informants, and if redaction would reveal the informant's identity, OSHA will provide summaries of the statements instead. That confidentiality approach is specified in 1987.104(f), which requires redaction consistent with the Privacy Act and other laws and allows summaries when redaction is not possible without revealing identities.

If a party does not provide its submissions to the other party, OSHA will provide those submissions (redacted if necessary) to the other party or its counsel at a time that allows an opportunity to respond. This requirement appears in 1987.104(c), which ensures both parties can see pertinent materials and respond appropriately.

The complainant (or the complainant's legal counsel if represented) and the FDA receive an unredacted copy of the complaint materials. That distribution is required by 1987.104(a), while materials provided to the respondent may be redacted as necessary for privacy and confidentiality.

A respondent has multiple opportunities: to submit written statements and documents within 20 days, request a meeting during that 20-day period, and, if OSHA has reasonable cause for preliminary reinstatement, to submit a written response, meet with investigators, present witness statements, and offer legal and factual arguments. These procedural rights are described in 1987.104(a), 1987.104(b), and 1987.104(f).