[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1980.104]

[Page 213-214]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)
 
PART 1980_PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS 
 
  Subpart A_Complaints, Investigations, Findings and Preliminary Orders
 
Sec. 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 Sec. 
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 Sec. 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

[[Page 214]]

notice of the substance of the relevant evidence supporting the 
complainant's allegations as developed during the course of the 
investigation. This evidence includes any witness statements, which will 
be redacted to protect the identity of confidential informants where 
statements were given in confidence; if the statements cannot be 
redacted without revealing the identity of confidential informants, 
summaries of their contents will be provided. The named person will be 
given the opportunity to submit a written response, to meet with the 
investigators to present statements from witnesses in support of its 
position, and to present legal and factual arguments. The named person 
will present this evidence within 10 business days of the Assistant 
Secretary's notification pursuant to this paragraph, or as soon 
afterwards as the Assistant Secretary and the named person can agree, if 
the interests of justice so require.