Investigation procedures

OSHA will notify the respondent(s) and the complainant’s employer (if different) when a CAARA complaint is filed. OSHA explains this in 1991.104(a).

• OSHA also notifies the complainant of the filing and provides materials supporting the complaint to the complainant, the respondent, and the complainant’s employer as described in that paragraph.
• Materials will be redacted as needed consistent with the Privacy Act of 1974 (5 U.S.C. 552a) and other confidentiality laws, per 1991.104(a).

OSHA provides the respondent(s) and the complainant’s employer notice of the allegations and the substance of supporting evidence, and it provides the complainant (or complainant’s counsel) an unredacted copy of the same materials. This is stated in 1991.104(a).

• Respondents receive notice of the filing, the allegations, and the substance of the supporting evidence, but materials may be redacted to comply with the Privacy Act (5 U.S.C. 552a) and other confidentiality laws.
• Complainants (or their counsel) receive an unredacted copy of those materials; OSHA also provides relevant materials to the Department of Justice as required by the rule.

The respondent has 20 days from receipt of the notice of filing to submit a written statement and any affidavits or documents supporting its position. See 1991.104(b).

• This 20-day period begins when the respondent receives OSHA’s notice described in 1991.104(a).
• Timely submission is important because failure to respond may affect whether the investigation proceeds, per 1991.104(e)(5).

Yes — the respondent may request a meeting with OSHA to present its position within the same 20-day period allowed for submitting a written statement. This is stated in 1991.104(b).

• The regulation allows the respondent both to submit written materials and to request a meeting during that 20-day window.
• Requesting a meeting lets the respondent explain evidence and context that might not be apparent from written submission alone.

OSHA will request that each party provide the other parties with copies of submissions to OSHA that are pertinent to the complaint, and if a party does not do so, OSHA generally will provide them to the other party at a time that permits response. See 1991.104(c).

• OSHA will redact materials as necessary to comply with the Privacy Act (5 U.S.C. 552a) and other confidentiality laws before providing them to another party.
• The purpose is fairness: to ensure each side has a reasonable opportunity to respond to the other side’s evidence.

OSHA conducts investigations in a way that protects the confidentiality of any person who provides information on a confidential basis (other than the complainant) in accordance with 29 CFR part 70, as stated in 1991.104(d).

• Confidential informants’ identities are protected; OSHA may redact identifying details from witness statements before sharing.
• If redaction would itself reveal a confidential informant, OSHA may provide summaries of the confidential statements instead of the original text, consistent with 1991.104(f).

A complainant must make a prima facie showing that a protected activity was a contributing factor in the alleged adverse action to avoid dismissal. This is set out in 1991.104(e)(1).

• The complaint (supplemented by interviews if needed) must allege facts and either direct or circumstantial evidence to show:
  • the individual engaged in a protected activity (1991.104(e)(2)(i));
  • the respondent knew or suspected the individual engaged in the protected activity (1991.104(e)(2)(ii));
  • the individual suffered an adverse action (1991.104(e)(2)(iii)); and
  • circumstances raising an inference that the protected activity was a contributing factor in the adverse action (1991.104(e)(2)(iv)).
• If these elements are not alleged, OSHA will notify the complainant and will not commence an investigation (1991.104(e)(3)).

The four prima facie elements OSHA requires are: (1) the individual engaged in protected activity; (2) the respondent knew or suspected the protected activity; (3) the individual suffered an adverse action; and (4) circumstances give rise to an inference that the protected activity was a contributing factor in the adverse action. These elements are listed at 1991.104(e)(2)(i)-(iv).

• Stating these elements clearly in the complaint (or in follow-up interviews) is necessary for OSHA to open an investigation under 1991.104(e)(1)-(3).

A prima facie showing can be supported by factual allegations and either direct or circumstantial evidence that give rise to the required inference. See 1991.104(e)(3).

• Direct evidence might include documents or statements explicitly linking the adverse action to the protected activity.
• Circumstantial evidence can include timing (e.g., adverse action shortly after protected activity), changes in treatment, or adverse action following complaints, as noted in 1991.104(e).

Yes — close timing between the protected activity and the adverse action can help satisfy the prima facie showing. OSHA notes that the burden may be satisfied, for example, if the adverse action occurred shortly after the protected activity (see 1991.104(e)).

• Timing alone may be persuasive but is evaluated with other facts; stronger cases combine timing with other circumstantial evidence such as comments, sudden negative evaluations, or changes in job duties.

OSHA will not continue its investigation if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action absent the complainant’s protected activity. This rule is in 1991.104(e)(4).

• The employer’s burden is high—clear and convincing evidence means the respondent must strongly show the same action would have occurred for legitimate, independent reasons.
• Examples (illustrative only) include contemporaneous, well-documented performance problems or a formal, preexisting disciplinary process that would have applied regardless of the protected activity.

If the respondent fails to make a timely response or fails to satisfy its burden of showing the adverse action would have occurred absent protected activity, OSHA will proceed with the investigation. See 1991.104(e)(5).

• A timely and substantive employer response can influence whether OSHA continues or limits the investigation; failure to respond generally allows OSHA to move forward.

If OSHA has reasonable cause to believe the respondent violated CAARA and preliminary reinstatement is warranted, OSHA will contact the respondent (or the respondent’s counsel) to give notice of the substance of the relevant evidence before issuing findings or a preliminary order. See 1991.104(f).

• OSHA will provide witness statements but will redact identifying information for confidential informants; if redaction would reveal identities, OSHA may provide summaries of those statements instead (1991.104(f)).
• The complainant also receives copies of the materials provided to the respondent under this paragraph.

OSHA will redact witness statements to protect the identity of confidential informants; if redaction would reveal the informant’s identity, OSHA will provide summaries of their contents instead. This approach is specified in 1991.104(f).

• This balances the respondent’s right to know the evidence against the obligation to protect confidential sources.
• The complainant receives the same materials OSHA provides the respondent under this paragraph, subject to any necessary redactions or summaries.

If a party does not provide its submissions to the other party, OSHA generally will provide those submissions to the other party (or that party’s counsel) at a time permitting a response, redacting as needed under the Privacy Act (5 U.S.C. 552a). See 1991.104(c).

• OSHA aims to ensure fairness by giving each party the opportunity to respond to evidence submitted to OSHA by another party.
• Redaction is used to protect legally protected information before disclosure.

OSHA will redact materials it shares as necessary to comply with the Privacy Act of 1974 (5 U.S.C. 552a) and other confidentiality laws when notifying parties and when providing evidence, as described in 1991.104(a) and 1991.104(f).

• Redactions protect personal and confidential information while still allowing parties to understand the substance of allegations and evidence.
• OSHA will provide unredacted materials to the complainant (or complainant’s counsel) but will redact materials provided to respondents and third parties if required by law (1991.104(a)).

OSHA proceeds with an investigation when the complaint makes the required prima facie showing or when it is necessary or appropriate to confirm or verify information provided by the respondent, and it will proceed if the respondent fails to timely respond or to meet its burden. See 1991.104(e) and 1991.104(e)(5).

• OSHA will also proceed when it needs to corroborate or check the respondent’s information as part of the fact-finding process (1991.104(f)).

Each party is given an opportunity to respond to the other party’s submissions during the investigation. OSHA will either request the parties share submissions with each other or will provide them (redacted as needed) so the other party can respond, per 1991.104(c) and 1991.104(d).

• This process supports a fair opportunity to rebut evidence before OSHA issues findings.

OSHA will provide the Department of Justice with an unredacted copy of the materials given to the complainant, as described in 1991.104(a).

• The rule specifies that complainants (or the complainant’s legal counsel) and the DOJ receive unredacted copies of the same materials that OSHA notifies the respondent about, subject to legal confidentiality constraints.

The complainant (or the complainant’s counsel) receives an unredacted copy of materials supporting the complaint, while the respondent may receive redacted versions where necessary to comply with the Privacy Act (5 U.S.C. 552a). This distinction is in 1991.104(a).

• OSHA balances the complainant’s need for full information with legal confidentiality obligations that may limit what is provided to respondents or third parties.