OSHA Instruction DIS .7 FEB 27, 1990 Directorate of Field Operations
SUBJECT: Referral of Section 11(c) Discrimination Complaints to "State
Plan" States
A. Purpose. This instruction outlines the procedures for referring Section
11(c) complaints filed with Federal OSHA to "State Plan" States for
investigation and disposition.
B. Scope. This instruction applies OSHA-wide.
C. Reference. OSHA Regulation 29 CFR 1977.
D. Action. Regional Administrators shall ensure that Section 11(c)
complaints filed by employees in "State Plan" States are referred to the
State as set forth in F. of this instruction.
E. Explanation. 29 CFR 1977 sets forth policies and procedures by which
the Assistant Secretary exercises authority under Section 11(c) of the Act.
1. As set forth under 29 CFR 1977.18 and 23, it has been the
practice for Federal OSHA to receive and process Section 11(c) complaints
from employees in "State Plan" States, if the employee chooses to file with
Federal OSHA rather than a State Program.
2. This instruction establishes the procedures by which all Section
11(c) complaints filed by employees in "State Plan" States will be referred
by Federal OSHA to the State, except in certain cases when the complainant
insists on filing with Federal OSHA, or when OSHA determines that a State is
unable to provide "at least as effective" nondiscrimination protection. In
doing so, the Assistant Secretary fulfills the obligation under the Act to
"cause an investigation" of the Section 11(c) complaint; and curtails the
instances of dual jurisdiction in which a complaint is investigated by both
Federal OSHA and a State Program.
OSHA Instruction DIS .7 FEB 27, 1990 Directorate of Field Operations
This policy is in accord with the provisions of Operational
Status Agreements and 18(e) Determinations which provide for the continued
exercise of Federal 11(c) authority in "State Plan" States, since all
complaints will be recorded by OSHA prior to referral and can be acted upon
should the State action prove inadequate.
3. It is necessary for States to provide an assurance that they can
legally act on 11(c) complaints filed with Federal OSHA and subsequently
referred to them for investigation.
4. The recent change to 29 CFR 1977.15(d)(3), regarding
circumstances which will toll the 30-day Federal filing period, makes it
necessary for state Plan" States to advise all private sector discrimination
complainants filing directly with the state of the requirement to file in a
timely manner with OSHA, if they wish to maintain their rights to concurrent
Federal protection.
F. Federal Program Change. This instruction describes a Federal program
change which affects State programs. Each Regional Administrator shall:
1. Ensure that this change is forwarded to each State designee.
2. Explain the technical content of the change to the State
designee as requested.
3. Ensure, within 30 days of forwarding this instruction, that the
State submits:
a. A plan change supplement; or
b. A proposed timetable for adoption of the change; or
c. Reasons why it is not necessary for the State to adopt this
change.
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OSHA Instruction DIS .7 FEB 27, 1986 Directorate of Field Operations
4. Ensure that within 6 months of forwarding this instruction, the
Federal program change (or its equivalent) is implemented and a plan change
supplement is submitted by the State to the Region for review and
processing.
5. Inform each State designee that the State must:
a. Provide assurance that the State has the legal authority to
accept, investigate and act on a discrimination complaint that has been filed
with Federal OSHA and referred to the State, or
b. In coordination with the Region, establish alternative
procedures to enable the State to act on a discrimination complaint that has
been initially filed with Federal OSHA. (See E.3.)
6. Notify the State that, where necessary, a change in State
procedures must be instituted to ensure that State complainants are informed
of the Federal tolling requirements (private sector employees seeking to
preserve their right to a Federal 11(c) investigation must file their
complaints with OSHA within 30 days of the alleged discrimination unless
there are "strong extenuating circumstances" or the discrimination is a
continuing violation) through such means as addition to the safety and health
poster, checklist, handout, letter of acknowledgment, etc.
G. Procedures.
1. Complaint Receipt. The Federal official receiving the complaint
shall record its receipt and place the complainant in contact with the
Regional Supervisory Investigator. The recording of the initial Federal
complaint is essential in order to comply with the requirements under 29 CFR
1977.15(d)(3) for a timely filed complaint.
a. The Regional Supervisory Investigator, or his/her delegate,
shall record the complaint and telephonically or otherwise screen
the
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OSHA Instruction DIS .7 FEB 27, 1986 Directorate of Field Operations
complaint to determine if the complainant has a timely filed
cause of action under either the Federal Program or the State
Plan.
b. "Screened out" complaints will be closed by the Regional
Supervisory Investigator in the current manner and those potential
meritorious complaints exclusively within the jurisdiction of OSHA will be
processed to conclusion by the Regional 11(c) investigative
staff.
c. All Federally filed complaints not closed by the Regional
Supervisory Investigator which are susceptible to the assertion of State Plan
jurisdiction; i.e., private sector and non-Federal public sector, will be
referred to the appropriate State Plan official for investigation; a
determination on the merits; and the seeking of a remedy if
appropriate.
d. In some cases the complainant may insist that the complaint
be investigated by Federal OSHA, even though the complainant resides in a
State Plan State. In such instances the Regional Administrator shall
determine the reasons for the complainant's insistence. The complainant shall
be advised of the equal protection requirement levied on the State. If the
complainant still insists that Federal OSHA handle the complaint, the
Regional Administrator may accept the complaint. It is expected that the
number of such cases will be minimal.
2. Referral to the "State Plan" State. The Regional Supervisory
Investigator will advise the complainant by letter that a referral of the
complaint is being made to the State Program. a. A referral will be sent to
the designated State official by the Regional Supervisory Investigator with
the OSHA-82 complaint form attached (copies of both will be included in the
letter to the complainant).
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OSHA Instruction DIS .7 FEB 27, 1986 Directorate of Field Operations
b. The referral letter will state:
(1) That the attached complaint is referred to the State because
it lies within its jurisdiction.
(2) That upon final State disposition of the case a copy of the
closing letter to the complainant be forwarded to the Regional Supervisory
Investigator.
(3) That absent a request for review to the Regional Supervisory
Investigator received within 15 calendar days after complainant's receipt of
the closing letter, OSHA will defer to the State determination and close its
file on the matter.
3. Exemption to the Referral Policy. The Regional Administrator
may determine, based on monitoring findings, legislative or judicial actions,
that a "State Plan" State within his/her jurisdiction cannot adequately
enforce nondiscrimination provisions, or for some reason cannot provide
protection. In such situations, the Regional Administrator shall advise the
Director of Field Operations and Director of Federal-State Operations, in
writing, of the circumstances, and request authorization to accept and
process Section 11(c) complaints from employees in the affected State. After
authorization is received, all complaints filed by employees in the affected
State will be processed as a normal federally filed complaint.
4. Complainant's Request for Federal Review. While the regulation
at 29 CFR 1977.23 clearly provides for the referral of 11(c) complaints as
described above, it is equally clear that OSHA can defer to the results of
the State's ultimate disposition of the case only if the tests required by 29
CFR 1977.18 are met. Therefore, if the complainant requests review of the
State's disposition
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OSHA Instruction DIS .7 FEB 27, 1986 Directorate of Field Operations
of the case, the Regional Supervisory Investigator will be
required to conduct whatever investigative field review, field investigation,
and consultation with State officials is necessary to establish that the
State's investigation was fair and adequate and the determination made
thereon is not repugnant to the Act.
a. Should the Regional Supervisory Investigator determine that
the State's disposition is not repugnant to Section 11(c)(1), he/she will
take normal case closing action. The complainant may be afforded the
opportunity to request an administrative closing of the case. If the
complainant is not satisfied with the decision to close the case, then the
complaint will be dismissed and the complainant advised of the right to file
an appeal with the National Office.
b. Should it be determined that OSHA cannot properly defer to
the State Disposition, the Regional Supervisory Investigator will conduct
whatever additional investigation is necessary with every effort being made
not to duplicate any portion of the State investigation believed to have been
adequately performed and documented. Further, OSHA processing of the
complaint will be the same as for cases not referred to the
State.
c. The Regional Supervisory Investigator will report to the
Regional Administrator on the quality of State investigation and the
soundness of determination on the merits as this information comes to his/her
attention
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OSHA Instruction DIS .7 FEB 27, 1986 Directorate of Field Operations
as a result of the review process. The information will be
available to the Regional Administrator for use in the State Plan
evaluation.
Patrick R. Tyson Acting Assistant Secretary
DISTRIBUTION: National, Regional and Area Offices State Designees All
Compliance Officers Section 11(c)/405 Staff
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