29 Cfr 24.103

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Office of the Secretary of Labor

§ 24.103

other action to carry out the purposes
of such statute.
(c) Under the Energy Reorganization
Act, and by interpretation of the Secretary under any of the other statutes
listed in § 24.100(a), it is a violation for
any employer to intimidate, threaten,
restrain, coerce, blacklist, discharge,
or in any other manner retaliate
against any employee because the employee has:
(1) Notified the employer of an alleged violation of such statute or the
AEA of 1954;
(2) Refused to engage in any practice
made unlawful by such statute or the
AEA of 1954, if the employee has identified the alleged illegality to the employer; or
(3) Testified or is about to testify before Congress or at any federal or state
proceeding regarding any provision (or
proposed provision) of such statute or
the AEA of 1954.
(d)(1) Every employer subject to the
Energy Reorganization Act of 1974, as
amended, shall prominently post and
keep posted in any place of employment to which the employee protection
provisions of the Act apply, a fully legible copy of the notice prepared by
OSHA, printed as appendix A to this
part, or a notice approved by the Assistant Secretary that contains substantially the same provisions and explains the employee protection provisions of the Act and the regulations in
this part. Copies of the notice prepared
by OSHA may be obtained from the Assistant Secretary for Occupational
Safety and Health, U.S. Department of
Labor, Washington, DC 20210, from
local OSHA offices, or from OSHA’s
Web site at http://www.osha.gov.
(2) Where the notice required by
paragraph (d)(1) of this section has not
been posted, the requirement in
§ 24.103(d)(2) that a complaint be filed
with the Assistant Secretary within 180
days of an alleged violation will be inoperative, unless the respondent establishes that the complainant had knowledge of the material provisions of the
notice. If it is established that the notice was posted at the employee’s place
of employment after the alleged retaliatory action occurred or that the complainant later obtained knowledge of
the provisions of the notice, the 180

days will ordinarily run from whichever of those dates is relevant.
(e) This part shall have no application to any employee who, acting without direction from his or her employer
(or the employer’s agent), deliberately
causes a violation of any requirement
of any of the statutes listed in
§ 24.100(a) or the AEA of 1954.
§ 24.103 Filing of retaliation complaint.
(a) Who may file. An employee who
believes that he or she has been retaliated against by an employer in violation of any of the statutes listed in
§ 24.100(a) may file, or have filed by any
person on the employee’s behalf, a
complaint alleging such retaliation.
(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. (1) Except as provided in paragraph (d)(2) of this section, within 30 days after an alleged
violation of any of the statutes listed
in § 24.100(a) occurs (i.e., when the retaliatory decision has been both made
and communicated to the complainant), an employee who believes that he
or she has been retaliated against in
violation of any of the statutes listed
in § 24.100(a) may file, or have filed by
any person on the employee’s behalf, a
complaint alleging such retaliation.
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.
(2) Under the Energy Reorganization
Act, within 180 days after an alleged
violation of the Act occurs (i.e., when
the retaliatory decision has been both

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§ 24.104

29 CFR Subtitle A (7–1–09 Edition)

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made and communicated to the complainant), an employee who believes
that he or she has been retaliated
against in violation of the Act may
file, or have filed by any person on the
employee’s behalf, a complaint alleging
such retaliation. 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.
(e) Relationship to section 11(c) complaints. A complaint filed under any of
the statutes listed in § 24.100(a) alleging
facts that would constitute a violation
of section 11(c) of the Occupational
Safety and Health Act, 29 U.S.C. 660(c),
will be deemed to be both a complaint
filed under any of the statutes listed in
§ 24.100(a) and section 11(c). Similarly, a
complaint filed under section 11(c) that
alleges facts that would constitute a
violation of any of the statutes listed
in § 24.100(a) will be deemed to be both
a complaint filed under any of the statutes listed in § 24.100(a) and section
11(c). Normal procedures and timeliness requirements for investigations
under the respective statutes and regulations will be followed.
§ 24.104 Investigation.
(a) Upon receipt of a complaint in the
investigating office, the Assistant Secretary will notify the respondent 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). A copy of the notice to the
respondent will also be provided to the
appropriate office of the federal agency
charged with the administration of the
general provisions of the statute(s)
under which the complaint is filed.
(b) Within 20 days of receipt of the
notice of the filing of the complaint
provided under paragraph (a) of this
section the respondent may submit to
the Assistant Secretary a written
statement and any affidavits or documents substantiating its position.
Within the same 20 days, the respondent may request a meeting with the
Assistant Secretary to present its position.

(c) 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 29 CFR part 70.
(d) Investigation under the six environmental statutes. In addition to the investigative procedures set forth in
§ 24.104(a), (b), and (c), this paragraph
sets forth the procedures applicable to
investigations under the Safe Drinking
Water Act; Federal Water Pollution
Control Act; Toxic Substances Control
Act; Solid Waste Disposal Act; Clean
Air Act; and Comprehensive Environmental Response, Compensation and
Liability Act.
(1) A complaint of alleged violation
will be dismissed unless the complainant has made a prima facie showing
that protected activity was a motivating factor in the unfavorable personnel action alleged in the complaint.
(2) 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;
(ii) The respondent 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 motivating
factor in the unfavorable action.
(3) 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 respondent knew or
suspected that the employee engaged
in protected activity and that the protected activity was a motivating factor
in the unfavorable personnel action.
The burden may be satisfied, for example, if the complainant shows that the
adverse personnel action took place
shortly after the protected activity,
giving rise to the inference that it was

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