29 Cfr 1980.103

Occupational Safety and Health Admin., Labor
Company representative means any officer, employee, contractor, subcontractor, or agent of a company.
Complainant means the employee who
filed a complaint under the Act or on
whose behalf a complaint was filed.
Employee means an individual presently or formerly working for a company or company representative, an individual applying to work for a company or company representative, or an
individual whose employment could be
affected by a company or company representative.
Named person means the employer
and/or the company or company representative named in the complaint
who is alleged to have violated the Act.
OSHA means the Occupational Safety
and Health Administration of the
United States Department of Labor.
Person means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives or any group of persons.
Secretary means the Secretary of
Labor or persons to whom authority
under the Act has been delegated.

cprice-sewell on DSKDVH8Z91PROD with CFR

§ 1980.102
acts.

Obligations and prohibited

(a) No company or company representative may discharge, demote,
suspend, threaten, harass or in any
other manner discriminate against any
employee with respect to the employee’s compensation, terms, conditions,
or privileges of employment because
the employee, or any person acting
pursuant to the employee’s request,
has engaged in any of the activities
specified in paragraphs (b)(1) and (2) of
this section.
(b) An employee is protected against
discrimination (as described in paragraph (a) of this section) by a company
or company representative for any lawful act:
(1) To provide information, cause information to be provided, or otherwise
assist in an investigation regarding
any conduct which the employee reasonably believes constitutes a violation of 18 U.S.C. 1341, 1343, 1344, or 1348,
any rule or regulation of the Securities
and Exchange Commission, or any provision of Federal law relating to fraud
against shareholders, when the infor-

§ 1980.103

mation or assistance is provided to or
the investigation is conducted by—
(i) A Federal regulatory or law enforcement agency;
(ii) Any Member of Congress or any
committee of Congress; or
(ii) A person with supervisory authority over the employee (or such
other person working for the employer
who has the authority to investigate,
discover, or terminate misconduct); or
(2) To file, cause to be filed, testify,
participate in, or otherwise assist in a
proceeding filed or about to be filed
(with any knowledge of the employer)
relating to an alleged violation of 18
U.S.C. 1341, 1343, 1344, or 1348, any rule
or regulation of the Securities and Exchange Commission, or any provision
of Federal law relating to fraud against
shareholders.
§ 1980.103 Filing
of
discrimination
complaint.
(a) Who may file. An employee who
believes that he or she has been discriminated against by a company or
company representative in violation of
the Act may file, or have filed by any
person on the employee’s behalf, a
complaint alleging such discrimination.
(b) Nature of filing. No particular
form of complaint is required, except
that a complaint must be in writing
and should include a full statement of
the acts and omissions, with pertinent
dates, which are believed to constitute
the violations.
(c) Place of filing. The complaint
should be filed with the OSHA Area Director responsible for enforcement activities in the geographical area where
the employee resides or was employed,
but may be filed with any OSHA officer
or employee. Addresses and telephone
numbers for these officials are set forth
in local directories and at the following
Internet
address:
http://
www.osha.gov.
(d) Time for filing. Within 90 days
after an alleged violation of the Act occurs (i.e., when the discriminatory decision has been both made and communicated to the complainant), an employee who believes that he or she has
been discriminated against in violation
of the Act may file, or have filed by
any person on the employee’s behalf, a

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§ 1980.104

29 CFR Ch. XVII (7–1–09 Edition)

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complaint alleging such discrimination. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the
date of filing; if the complaint is filed
in person, by hand-delivery or other
means, the complaint is filed upon receipt.
§ 1980.104 Investigation.
(a) Upon receipt of a complaint in the
investigating office, the Assistant Secretary will notify the named person (or
named persons) of the filing of the
complaint, of the allegations contained
in the complaint, and of the substance
of the evidence supporting the complaint (redacted to protect the identity
of any confidential informants). The
Assistant Secretary also will notify the
named person of its right under paragraphs (b) and (c) of this section and
paragraph (e) of § 1980.110. A copy of the
notice to the named person will also be
provided to the Securities and Exchange Commission.
(b) A complaint of alleged violation
shall be dismissed unless the complainant has made a prima facie showing
that protected behavior or conduct was
a contributing factor in the unfavorable personnel action alleged in the
complaint.
(1) The complaint, supplemented as
appropriate by interviews of the complainant, must allege the existence of
facts and evidence to make a prima
facie showing as follows:
(i) The employee engaged in a protected activity or conduct;
(ii) The named person knew or suspected, actually or constructively, that
the employee engaged in the protected
activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that the
protected activity was a contributing
factor in the unfavorable action.
(2) For purposes of determining
whether to investigate, the complainant will be considered to have met the
required burden if the complaint on its
face, supplemented as appropriate
through interviews of the complainant,
alleges the existence of facts and either
direct or circumstantial evidence to
meet the required showing, i.e., to give

rise to an inference that the named
person knew or suspected that the employee engaged in protected activity
and that the protected activity was a
contributing factor in the unfavorable
personnel action. Normally the burden
is satisfied, for example, if the complaint shows that the adverse personnel action took place shortly after
the protected activity, giving rise to
the inference that it was a factor in the
adverse action. If the required showing
has not been made, the complainant
will be so advised and the investigation
will not commence.
(c) Notwithstanding a finding that a
complainant has made a prima facie
showing, as required by this section, an
investigation of the complaint shall
not be conducted if the named person,
pursuant to the procedures provided in
this paragraph, demonstrates by clear
and convincing evidence that it would
have taken the same unfavorable personnel action in the absence of the
complainant’s protected behavior or
conduct. Within 20 days of receipt of
the notice of the filing of the complaint, the named person may submit
to the Assistant Secretary a written
statement and any affidavits or documents substantiating its position.
Within the same 20 days, the named
person may request a meeting with the
Assistant Secretary to present its position.
(d) If the named person fails to demonstrate by clear and convincing evidence that it would have taken the
same unfavorable personnel action in
the absence of the behavior protected
by the Act, the Assistant Secretary
will conduct an investigation. Investigations will be conducted in a manner that protects the confidentiality of
any person who provides information
on a confidential basis, other than the
complainant, in accordance with part
70 of this title.
(e) Prior to the issuance of findings
and a preliminary order as provided for
in § 1980.105, if the Assistant Secretary
has reasonable cause, on the basis of
information gathered under the procedures of this part, to believe that the
named person has violated the Act and
that preliminary reinstatement is warranted, the Assistant Secretary will
again contact the named person to give

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