Investigation procedures for complaints

OSHA must tell the respondent that a complaint was filed, what the complaint alleges, and the substance of the evidence supporting the complaint. See 1988.104(a).

• OSHA will redact materials only as needed to comply with the Privacy Act and other confidentiality laws.
• OSHA will also inform the respondent of rights described in 1988.104(b), 1988.104(f), and 1988.110(e).

The complainant (or the complainant's counsel, if represented) and the NHTSA receive unredacted copies of the complaint materials. See 1988.104(a).

• OSHA may redact materials provided to the respondent consistent with the Privacy Act and other confidentiality laws, but the complainant and NHTSA get unredacted versions.

The respondent has 20 days from receipt of OSHA's notice to submit a written statement and any affidavits or documents supporting its position. See 1988.104(b).

• The respondent may use that submission to present facts, legal arguments, witness affidavits, and documents.

Yes—within the same 20-day period the respondent has to submit written material, the respondent may also request a meeting to present its position. See 1988.104(b).

• The meeting request should be made during that 20-day window so OSHA can schedule the meeting while the investigation process proceeds.

Yes—OSHA will ask each party to provide the other parties with copies of submissions that are relevant to the complaint, and if a party does not provide them, OSHA will provide them to the other party. See 1988.104(c).

• OSHA will redact those materials as necessary under the Privacy Act before sharing them.
• Each party gets an opportunity to respond to the other party's submissions.

OSHA protects the confidentiality of any person (other than the complainant) who provides information on a confidential basis in accordance with part 70 of this title. See 1988.104(d).

• Confidential informants' identities and identifying details are kept private; when statements would reveal identity, OSHA provides redacted statements or summaries instead.

A complainant must make a prima facie showing that a protected activity was a contributing factor in the alleged adverse action, or the complaint will be dismissed. See 1988.104(e)(1) and 1988.104(e)(2).

• This showing can be established by facts and either direct or circumstantial evidence.

The complaint must allege 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 support an inference that the protected activity was a contributing factor in the adverse action. See 1988.104(e)(2)(i)-(iv).

• These elements may be supported by direct or circumstantial evidence gathered in the complaint and interviews.

The complainant meets the burden if the complaint (plus interviews) alleges facts and direct or circumstantial evidence that give rise to an inference that the respondent knew or suspected the protected activity and that the activity was a contributing factor in the adverse action. See 1988.104(e)(3).

• Examples include timing (temporal proximity) between the protected activity and adverse action or evidence that the adverse action occurred at the first opportunity after the activity.

Temporal proximity can satisfy the required showing when the complaint alleges the adverse action occurred soon after the protected activity or at the first opportunity to act, creating an inference the activity was a contributing factor. See 1988.104(e)(3).

• Temporal proximity is an example of circumstantial evidence that may be sufficient when combined with other facts.

A respondent can stop further investigation by showing with clear and convincing evidence that it would have taken the same adverse action even without the complainant's protected activity. See 1988.104(e)(4).

• This is a high evidentiary standard; the respondent must prove the adverse action was unrelated to the protected activity.

If the respondent fails to respond timely or fails to show by clear and convincing evidence that it would have taken the same action absent protected activity, OSHA will proceed with the investigation. See 1988.104(e)(5).

• OSHA proceeds when necessary or appropriate to confirm or verify information provided by the respondent.

If OSHA has reasonable cause to believe MAP-21 was violated and preliminary reinstatement is warranted, OSHA will contact the respondent with the substance of the relevant evidence developed during the investigation before issuing findings and a preliminary order. See 1988.104(f).

• This notice gives the respondent a chance to respond before OSHA issues a preliminary order under 1988.105.

OSHA will provide the respondent the relevant evidence supporting the complainant's allegations, including witness statements; statements will be redacted to protect confidential informants or summarized if redaction would reveal identity. See 1988.104(f).

• Complainant also receives the same materials.
• Redactions are done consistent with the Privacy Act and other confidentiality laws.

After providing the evidence, OSHA will give the respondent the opportunity to submit a written response, meet with the investigator, present witness statements supporting its position, and make legal and factual arguments. See 1988.104(f).

• The respondent must present this evidence within 10 business days of OSHA's notification or as soon thereafter as OSHA and the respondent can agree.

The respondent must present evidence, witnesses, or responses within 10 business days of OSHA's notification under 1988.104(f), unless OSHA and the respondent agree on a later date in the interest of justice. See 1988.104(f).

• This deadline applies to the materials and opportunities OSHA provides before issuing findings or a preliminary order.

OSHA will redact submissions as necessary to comply with the Privacy Act of 1974 and other confidentiality laws before providing them to other parties. See 1988.104(c).

• If redaction would reveal a confidential informant's identity, OSHA will provide summaries of the statements instead of the unredacted text.

Yes—the complainant or the complainant's legal counsel (if the complainant is represented) receives an unredacted copy of the complaint materials. See 1988.104(a).

• This ensures the complainant or their counsel has the full evidence OSHA has gathered, subject to applicable confidentiality laws.

NHTSA receives an unredacted copy of the complaint materials that OSHA provides upon receipt of a complaint. See 1988.104(a).

• OSHA shares the same unredacted materials with the complainant and NHTSA to coordinate enforcement under MAP-21 procedures.