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.

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

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).

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

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

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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