What to expect during an OSHA Whistleblower Investigation
For a complete explanation of the investigation process, please refer to the OSHA Whistleblower Investigations Manual, which can be found at www.whistleblowers.gov.
Filing a Complaint
- An employee, or his or her representative, can file a whistleblower complaint with OSHA via mail, telephone, in person, or online at www.whistleblowers.gov, against an employer for unlawful retaliation. In an OSHA whistleblower investigation, the employee who files the complaint is referred to as "the Complainant," and the employer, against whom the complaint is filed, is referred to as "the Respondent." Neither side is required to retain an attorney, but if a party designates a representative, the designee will serve as the point of contact with OSHA.
- It is imperative for the Complainant or his or her representative to provide OSHA with current contact information. Failure to do so may cause OSHA to conclude the investigation.
- OSHA will interview the Complainant to obtain information about the alleged retaliation, and will determine whether the allegation is sufficient to initiate an investigation under one or more of the twenty-two whistleblower protection statutes administered by OSHA. Regardless of the statute under which the complaint is filed, the conduct of the investigation is generally the same.
- If the allegation is sufficient to proceed with an investigation, the complaint will be assigned to an OSHA whistleblower Investigator who is a neutral fact-finder who does not represent either party. The investigator will notify the Complainant, Respondent, and appropriate federal partner agency that OSHA has opened an investigation.
- The Complainant and the Respondent should keep any potential evidence regarding the circumstances of the allegations, including all pertinent emails, letters, notes, text messages, voicemails, phone logs, personnel files, contracts, work products, and meeting minutes.
- OSHA will request that both parties provide each other with a copy of all submissions they have made to OSHA related to the complaint. Both the Complainant and the Respondent should provide contact information for witnesses who could support or refute the alleged retaliation.
- OSHA will ask the Respondent to provide a written defense to the allegations, also known as a position statement. Both parties are expected to actively participate in the investigation and to respond to OSHA's requests, and both parties are given an opportunity to rebut the opposing party's position.
- Whistleblower investigations vary in length of time. The parties may settle the retaliation complaint at any point in the investigation either through OSHA's Alternative Dispute Resolution (ADR) program, with the assistance of the assigned investigator, or through their own negotiated settlement that OSHA approves. Under certain statutes, the complainant may "kick out" and file the retaliation complaint in federal district court if OSHA does not complete its investigation within a specified time (180 or 210 days depending on the statute).
- At the conclusion of the investigation, the investigator will make a recommendation to his/her supervisor regarding whether the evidence provides reasonable cause to believe that the Respondent violated the specific statute in question. If the supervisor and management concur with the merit or dismissal recommendation, OSHA will issue a findings letter to both parties, which will include information about remedies (if appropriate) and the right to object and have the case heard by an administrative law judge, except in cases under OSHA 11(c), AHERA, or ISCA. In those cases, Complainants may request review by OSHA's National Office of dismissal decisions. In merit OSHA 11(c), AHERA, or ISCA cases, unless a settlement is reached, the Department of Labor would have to file a complaint in district court to remedy the retaliation.