Investigation procedures

The Assistant Secretary must notify the respondent by giving the respondent (or the respondent's legal counsel) a copy of the complaint, redacted if necessary, and provide the unredacted complaint to the complainant (or complainant's counsel) and the appropriate Federal agency office. See 24.104(a).

• The respondent gets a copy that may be redacted to protect Privacy Act and other confidentiality interests.
• The complainant (and the agency charged with administering the statute) receives the unredacted complaint.

The respondent has 20 days from receipt of the notice to submit a written statement and any affidavits or documents and to request a meeting with the Assistant Secretary. See 24.104(b).

• Include a clear factual narrative, supporting documents, and sworn affidavits where possible.
• If you want a meeting, ask for it within the same 20-day window and explain what issues you want to discuss.

Yes; throughout the investigation the agency must provide the complainant (or the complainant's counsel) copies of all respondent submissions that respond to the whistleblower complaint, redacting material as required by the Privacy Act and other confidentiality laws. See 24.104(c).

• Expect routine redactions to remove third‑party confidential information.
• Maintain your own records of what you receive and note any redactions you believe are excessive.

Investigations must be conducted to protect the confidentiality of anyone who provides information on a confidential basis (other than the complainant) in accordance with part 70 of title 29 CFR. See 24.104(d).

• Identify any witnesses who want confidentiality when you provide their information.
• The agency will handle such information under the specific confidentiality rules referenced in the regulation.

A complaint under the six environmental statutes will be dismissed unless the complainant makes a prima facie showing that protected activity was a motivating factor in the alleged adverse action. See 24.104(e)(1).

• If the complaint lacks facts or evidence connecting the protected activity to the adverse action, the agency will dismiss it before investigating further.

The complaint must allege facts showing: (1) the employee engaged in protected activity; (2) the respondent knew or suspected the employee engaged in that activity; (3) the employee suffered an adverse action; and (4) the circumstances raise an inference that the protected activity was a motivating factor in the adverse action. See 24.104(e)(2) and its subparts 24.104(e)(2)(i), 24.104(e)(2)(ii), 24.104(e)(2)(iii), 24.104(e)(2)(iv).

• State specific facts and any direct or circumstantial evidence for each element to avoid dismissal.

Timing can support the required inference: if the adverse action occurred shortly after the protected activity, that temporal proximity may be enough to give rise to an inference that the protected activity motivated the action. See 24.104(e)(3).

• Provide exact dates of the protected activity and the adverse action to make the timing clear.
• Combine timing with any other evidence (emails, witness statements) to strengthen the inference.

The complaint will be dismissed if a preponderance of the evidence shows the respondent would have taken the same adverse action even without the complainant's protected activity. See 24.104(e)(4).

• For respondents: assemble objective documentation (performance records, disciplinary policies, prior warnings) that explains the legitimate reasons for the action.
• For complainants: show evidence that undermines those legitimate explanations or shows inconsistent application of policies.

Under the ERA, a complaint will be dismissed unless the complainant makes a prima facie showing that protected activity was a contributing factor in the adverse action alleged. See 24.104(f)(1).

• The ERA uses the "contributing factor" standard (slightly different language than the environmental statutes' "motivating factor").

For ERA complaints the complainant must allege facts showing: (i) the employee engaged in protected activity; (ii) the respondent knew or suspected (actually or constructively) the employee engaged in protected activity; (iii) the employee suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action. See 24.104(f)(2) and subparts 24.104(f)(2)(i), 24.104(f)(2)(ii), 24.104(f)(2)(iii), 24.104(f)(2)(iv).

• Note the inclusion of "constructive" knowledge in (ii): actual awareness is not always required.

A complainant meets the burden if the complaint, possibly supplemented by interviews, alleges facts and 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 24.104(f)(3).

• Timing (short interval between protected activity and adverse action) is a common example used to meet this showing.
• Be specific about dates, witnesses, and documents when alleging facts.

The respondent can prevent or stop an ERA investigation by proving by clear and convincing evidence that it would have taken the same adverse action absent the complainant's protected conduct. See 24.104(f)(4).

• "Clear and convincing" is a higher evidentiary standard than a preponderance; provide strong, contemporaneous documentation (e.g., progressive discipline records, non-retaliatory reasons documented before the protected activity).
• Include objective evidence showing the same decision process would have led to the action without regard to the protected conduct.

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 behavior, the Assistant Secretary will proceed with the investigation. See 24.104(f)(5).

• An investigation will also proceed whenever needed to verify information provided by the respondent.

The environmental statutes require a prima facie showing that protected activity was a "motivating factor," while the ERA requires a prima facie showing that the protected activity was a "contributing factor," and the ERA procedure adds a higher burden on the respondent to prove by clear and convincing evidence they would have taken the same action. See 24.104(e)(1) and 24.104(f)(1) and 24.104(f)(4).

• In practice: both standards require alleging protected activity, knowledge, adverse action, and an inference linking them; ERA procedures emphasize constructive knowledge and give respondents a chance to meet a higher proof standard to avoid investigation.

The complainant (or their counsel) and the appropriate Federal agency office receive the unredacted complaint, while the respondent (or respondent's counsel) receives a copy that may be redacted to comply with the Privacy Act and other confidentiality laws. See 24.104(a) and 24.104(c).

• Redactions protect personal privacy or other legally protected information; expect some names or sensitive details to be removed before sending to the respondent.
• If you believe a redaction is improper, raise that concern with the investigating office and explain why the information is needed for your response.