C.F.R. » Title 29 » CHAPTER XVII—OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF LABOR › PART 1980—PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER SECTION 806 OF THE SARBANES-OXLEY ACT OF 2002, AS AMENDED › Subpart A—Complaints, Investigations, Findings and Preliminary Orders

29 C.F.R. § 1980.104

Investigation

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(a) Upon receipt of a complaint in the investigating office, OSHA 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. Such materials will be redacted, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1980.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or complainant's legal counsel, if complainant is represented by counsel) and to the Securities and Exchange Commission.

(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 OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.

(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.

(d) 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)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that a protected activity was a contributing factor in the adverse 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 that the employee engaged in the protected activity;

(iii) The employee suffered an adverse action; and

(iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.

(3) 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 respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complaint shows that the adverse personnel action took place within a temporal proximity after the protected activity, or at the first opportunity available to respondent, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel, if complainant is represented by counsel) will be so notified and the investigation will not commence.

(4) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, further investigation of the complaint will not be conducted if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity.

(5) If the respondent fails to make a timely response or fails to satisfy the burden set forth in the prior paragraph, OSHA will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent.

(f) Prior to the issuance of findings and a preliminary order as provided for in § 1980.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated the Act and that preliminary reinstatement is warranted, OSHA will contact the respondent (or the respondent's legal counsel, if respondent is represented by counsel) to give 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 complainant will also receive a copy of the materials that must be provided to the respondent under this paragraph. Before providing such materials to the complainant, OSHA will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The respondent will be given the opportunity to submit a written response, to meet with the investigator, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent will present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon afterwards as OSHA and the respondent can agree, if the interests of justice so require.

Notes of Decisions
Cited in 68 cases (17 in the last 5 years), 2004–2026 · leading case: Jeffrey Wiest v. Thomas Lynch, 710 F.3d 121 (3rd Cir. 2013).
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Jeffrey Wiest v. Thomas Lynch, 710 F.3d 121 (3rd Cir. 2013). · cites it 8× “As to the threshold question for a prima facie case in a retaliation case under Section 806 – whether the Complaint sufficiently alleges that the plaintiff had engaged in “protected activity,” see 29 C.F.R. § 1980.104 (e)(2)(i) – the District Court determined that Wiest had to…”
Van Asdale v. Int'l Game Tech., 577 F.3d 989 (9th Cir. 2009). · cites it 3× “” 29 C.F.R. § 1980.104 (b)(l)(i)-(iv). We address each element in turn.”
Erhart v. BofI Holding, Inc., 269 F. Supp. 3d 1059 (S.D. Cal. 2017). · cites it 6× “2009)); see also 29 C.F.R. § 1980.104 (e)(2)(i)-(iv). If the plaintiff makes this showing, then , “the employer assumes the burden of demonstrating by clear and convincing evidence that it would have taken the same adverse employment action in the absence of the plaintiffs…”
Jeffrey Wiest v. Tyco Elec. Corp, 812 F.3d 319 (3rd Cir. 2016). · cites it 2× “See 29 C.F.R. § 1980.104 (e)(2)-(4). Thus, to withstand Tyco’s motion for summary judgment, Wiest must identify evidence in the record from which a jury could deduce the following: (1) he “engaged in a protected activity”; (2) Tyco “knew or suspected that [he] engaged in the…”
Bechtel v. Admin. Review Bd., United States Dep't of Labor, 710 F.3d 443 (2d Cir. 2013). · cites it 3× “29 C.F.R. § 1980.104 (e)(2). Although the second of these elements is not expressly stated in either 49 U.”
Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121 (10th Cir. 2013). · cites it 2× “§ 42121 (b); 29 C.F.R. § 1980.104 (b)(1) (2007); Harp v.”
Coppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010). · cites it 2× “29 C.F.R. § 1980.104 (b)(1). If the employee makes a prima facie showing, the burden shifts to the employer to rebut the employee’s prima facie case by demonstrating by clear and convincing evidence that the employer would have taken the same personnel action in the absence of…”
Harp v. Charter Commc'ns, Inc., 558 F.3d 722 (7th Cir. 2009). · cites it 2× “§ 42121 (b) (2000), and the relevant burdens of proof are set forth in 29 C.F.R. § 1980.104 (b)(1) (2007) and numerous court opinions: To prevail under this provision, an employee must prove by a preponderance of the evidence that (1) she engaged in protected activity; (2) the…”
Newman v. Lehman Bros. Holdings Inc., 901 F.3d 19 (1st Cir. 2018). “See 29 C.F.R. § 1980.104 (e) (stating that a complaint may be "supplemented as appropriate through interviews of the complainant").”
John Scott Bechtel, United States Dep't of Labor, Intervenor-Plaintiff-Appellee v. Competitive Tech., Inc., Docket No. 05-2404-Cv, 448 F.3d 469 (2d Cir. 2006). · cites it 2× “Under 29 C.F.R. § 1980.104 (e) the Secretary was required, “[pjrior to the issuance of findings and a preliminary order,” to provide CTI with notice of the substance of the relevant evidence supporting the complainant’s allegations as developed during the course of the…”
Lawson v. FMR LLC, 571 U.S. 429 (2014). “29 CFR §§ 1980.104 to 1980.110 (2011). In common with other whistleblower protection provisions enforced by DOL, see 77 Fed.”
Feldman v. Law Enf't Assocs. Corp., 752 F.3d 339 (4th Cir. 2014). “109 (a), and not merely show that '[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action,’ 29 C.F.R. § 1980.104 (e)(2).” Bechtel v. Admin.”
Show all 68 citing cases →
— 29 C.F.R. § 1980.104(a) — 1 case
Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121 (10th Cir. 2013). “§ 42121 (b); 29 C.F.R. § 1980.104 (b)(1) (2007); Harp v.”
— 29 C.F.R. § 1980.104(e)(2) — 2 cases
Yang v. Navigators Grp., Inc., 18 F. Supp. 3d 519 (S.D.N.Y. 2014).
Yang v. Navigators Grp., Inc., 155 F. Supp. 3d 327 (S.D.N.Y. 2016).
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