29 Cfr 1977.15

§ 1977.15

29 CFR Ch. XVII (7–1–09 Edition)

job activities because of alleged safety
or health hazards.
(2) However, occasions might arise
when an employee is confronted with a
choice between not performing assigned tasks or subjecting himself to
serious injury or death arising from a
hazardous condition at the workplace.
If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against
subsequent discrimination. The condition causing the employee’s apprehension of death or injury must be of such
a nature that a reasonable person,
under the circumstances then confronting the employee, would conclude
that there is a real danger of death or
serious injury and that there is insufficient time, due to the urgency of the
situation, to eliminate the danger
through resort to regular statutory enforcement channels. In addition, in
such circumstances, the employee,
where possible, must also have sought
from his employer, and been unable to
obtain, a correction of the dangerous
condition.
[38 FR 2681, Jan. 29, 1973, as amended at 38
FR 4577, Feb. 16, 1973]

cprice-sewell on DSKDVH8Z91PROD with CFR

PROCEDURES
§ 1977.15 Filing of complaint for discrimination.
(a) Who may file. A complaint of section 11(c) discrimination may be filed
by the employee himself, or by a representative authorized to do so on his
behalf.
(b) Nature of filing. No particular
form of complaint is required.
(c) Place of filing. Complaint should
be filed with the Area Director (Occupational Safety and Health Administration) responsible for enforcement
activities in the geographical area
where the employee resides or was employed.
(d) Time for filing. (1) Section 11(c)(2)
provides that an employee who believes
that he has been discriminated against
in violation of section 11(c)(1) ‘‘may,
within 30 days after such violation occurs,’’ file a complaint with the Secretary of Labor.
(2) A major purpose of the 30-day period in this provision is to allow the

Secretary to decline to entertain complaints which have become stale. Accordingly, complaints not filed within
30 days of an alleged violation will ordinarily be presumed to be untimely.
(3) However, there may be circumstances which would justify tolling
of the 30-day period on recognized equitable principles or because of strongly
extenuating circumstances, e.g., where
the employer has concealed, or misled
the employee regarding the grounds for
discharge or other adverse action; or
where the discrimination is in the nature of a continuing violation. The
pendency of grievance-arbitration proceedings or filing with another agency,
among others, are circumstances which
do not justify tolling the 30-day period.
In the absence of circumstances justifying a tolling of the 30-day period, untimely complaints will not be processed.
[38 FR 2681, Jan. 29, 1973, as amended at 50
FR 32846, Aug. 15, 1985]

§ 1977.16 Notification of Secretary of
Labor’s determination.
Section 11(c)(3) provides that the
Secretary is to notify a complainant
within 90 days of the complaint of his
determination whether prohibited discrimination has occurred. This 90-day
provision is considered directory in nature. While every effort will be made to
notify complainants of the Secretary’s
determination within 90 days, there
may be instances when it is not possible to meet the directory period set
forth in section 11(c)(3).
§ 1977.17

Withdrawal of complaint.

Enforcement of the provisions of section 11(c) is not only a matter of protecting rights of individual employees,
but also of public interest. Attempts by
an employee to withdraw a previously
filed complaint will not necessarily result in termination of the Secretary’s
investigation. The Secretary’s jurisdiction cannot be foreclosed as a matter
of law by unilateral action of the employee. However, a voluntary and
uncoerced request from a complainant
to withdraw his complaint will be
given careful consideration and substantial weight as a matter of policy
and sound enforcement procedure.

220

VerDate Nov<24>2008

11:41 Aug 18, 2009

Jkt 217117

PO 00000

Frm 00230

Fmt 8010

Sfmt 8010

Y:\SGML\217117.XXX

217117