Investigation procedures for complaints

The respondent has 20 days to submit a written statement and any supporting affidavits or documents and to request a meeting. See 1989.104(b).

• File your written statement and attachments within 20 days of the notice to preserve the right to participate.
• Use the same 20-day period to request a meeting with OSHA to present your position.

OSHA will notify the respondent and the complainant's employer of the filing of the complaint, the allegations in the complaint, and the substance of the evidence supporting the complaint, with redactions as necessary under confidentiality laws. See 1989.104(a).

• Redactions will be made consistent with the Privacy Act of 1974 and other applicable confidentiality laws.
• OSHA will also notify the respondent of rights under specified provisions (see paragraph (b), paragraph (f), and 1989.110(e).

OSHA will provide an unredacted copy of the complaint materials to the complainant (or the complainant's legal counsel if represented) and to the IRS. See 1989.104(b).

• Other parties (like the respondent) receive notice of allegations and supporting evidence but may receive redacted versions consistent with privacy laws.

OSHA will request that each party provide copies of submissions that are pertinent to the complaint to the other parties; if a party does not provide them, OSHA will generally provide the submissions to the other party, redacting as necessary for privacy. See 1989.104(c).

• If OSHA provides the materials, it will do so in time to give the other party a fair opportunity to respond.
• Redactions will be made consistent with the Privacy Act and other confidentiality laws before sharing.

OSHA conducts investigations in a manner that protects confidentiality for anyone who provides information on a confidential basis (other than the complainant), in accordance with the applicable rules. See 1989.104(d).

• Confidential informants’ identities are protected when statements are provided in confidence.
• Where necessary, OSHA will redact or summarize information to avoid revealing confidential sources.

OSHA will dismiss a complaint unless the complainant makes a prima facie showing that a protected activity was a contributing factor in the alleged adverse action. See 1989.104(e)(1).

• If the complaint lacks the necessary allegations and supporting facts to meet the prima facie threshold, OSHA will notify the complainant and will not open a full investigation.

A complaint must allege facts showing (1) the employee engaged in protected activity, (2) the respondent knew or suspected the activity, (3) the employee suffered an adverse action, and (4) circumstances raising an inference that the protected activity was a contributing factor in the adverse action. See 1989.104(e)(2)(i)–(iv).

• Make sure your complaint includes specific facts and either direct or circumstantial evidence for each element.

The complainant can meet the prima facie burden with facts and either direct or circumstantial evidence that give rise to an inference the respondent knew or suspected the protected activity and that it was a contributing factor in the adverse action. See 1989.104(e)(3).

• Direct evidence could be statements admitting retaliatory intent; circumstantial evidence could include timing, inconsistent reasons, or differential treatment.

Timing can help: an adverse action that occurred shortly after the protected activity can satisfy the required showing by raising an inference of retaliation. See 1989.104(e)(4).

• Temporal proximity is a common example of circumstantial evidence that supports an inference of a contributing factor.

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 the protected activity, OSHA will proceed with the investigation. See 1989.104(e)(5).

• Timely participation by the respondent helps preserve evidence and the opportunity to avoid further investigation by meeting the burden described in 1989.104(e)(4).

Yes — further investigation will not be conducted if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action regardless of the complainant's protected activity. See 1989.104(e)(4).

• The employer’s proof must be strong (clear and convincing), not just plausible, to prevent further investigation.

If OSHA has reasonable cause to believe a violation occurred and that preliminary reinstatement is warranted, OSHA will contact the respondent to give notice of the substance of the relevant evidence developed during the investigation. See 1989.104(f).

• Witness statements will be redacted to protect confidential informants; if redaction would reveal identities, OSHA will provide summaries instead.
• The complainant also receives the same materials provided to the respondent (with necessary redactions).

OSHA will redact witness statements to protect confidential informants, and if redaction would still reveal their identities, OSHA will provide summaries of the statements instead. See 1989.104(f).

• This balances the need to share evidence with the obligation to protect confidential sources.

Yes — OSHA will provide each party an opportunity to respond to the other party’s submissions, and will either request the parties share their submissions with each other or provide them (with necessary redactions). See 1989.104(c) and 1989.104(d).

• Parties should plan to review and reply promptly to submissions they receive to preserve their positions during the investigation.

OSHA will redact materials as necessary to comply with the Privacy Act of 1974 and other confidentiality laws before sharing them with parties, but will provide an unredacted copy to the complainant (or their counsel) and to the IRS. See 1989.104(a) and 1989.104(b).

• Expect redactions where disclosure would violate statutory privacy or confidentiality obligations.

Yes — circumstantial evidence alone can be sufficient to meet the prima facie showing if it gives rise to an inference that the respondent knew or suspected the protected activity and that it was a contributing factor in the adverse action. See 1989.104(e)(3).

• Common circumstantial evidence includes timing, inconsistent explanations, and differences in treatment compared to similarly situated employees.

OSHA will notify the respondent of its rights under paragraph (b) (the 20‑day response and meeting request), paragraph (f) (notice about evidence when preliminary reinstatement is considered), and 1989.110(e). See 1989.104(a).

• This means the respondent will be told about deadlines to respond, opportunities to meet with OSHA, and notice procedures if preliminary reinstatement evidence arises.

A complainant should include facts and either direct or circumstantial evidence showing they engaged in a protected activity, the respondent knew or suspected the activity, the complainant suffered an adverse action, and the circumstances raise an inference that the protected activity contributed to that action. See 1989.104(e)(2) and 1989.104(e)(3).

• Include dates, descriptions of the protected activity, who knew about it, what adverse action occurred, and any timing or other facts that suggest a link.

The complainant also receives a copy of the same materials provided to the respondent, subject to necessary redactions consistent with confidentiality laws. See 1989.104(f).

• OSHA will protect confidential informants in those materials by redaction or by providing summaries where redaction would reveal identities.

If a party does not want OSHA to supply its submissions to the other party, that party should provide the submissions directly to the other party, since OSHA will otherwise generally provide them itself (with appropriate redactions). See 1989.104(c).

• Providing submissions directly can help ensure timely exchange and control over any needed redactions consistent with privacy rules.

OSHA will proceed with the investigation whenever necessary or appropriate to confirm or verify information provided by the respondent, including when the respondent’s assertions do not satisfy the clear-and-convincing standard to stop further investigation. See 1989.104(f) and 1989.104(e)(4).

• OSHA will follow up to verify claims and evidence rather than accepting unsubstantiated assertions.